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[ 271 ] July 14, 2016 |


Assuming this checks out, it would be a rare case of the Trump campaign doing something right.

The key to understanding vice presidential picks from a political standpoint is that the only substantial possible effects are downside ones. There’s no evidence that vice presidential choices can attract a non-negligible number of voters to the ticket; even the vaunted home-state effect only seems to apply in states to small to tip the Electoral College except in an extreme case. A bad pick, like Palin or Eagleton, can hurt you but nobody can really help you.

Newt Gingrich — an undisciplined campaigner with a lot of personal baggage — is exactly what you don’t want. (And even if you assume that VP picks have a potential upside too subtle for political science to pick up, I don’t know what story you could tell that Gingrich has anything to offer there.) Pence, a safe, boring pol is exactly what you’re looking for.


Notorious RBG

[ 59 ] July 14, 2016 |


I can’t really get too exercised about Ruth Bader Ginsburg’s imprudent comments about Trump:

“Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas,” argues Drezner, “but they never weighed in on presidential politics quite like this.” This is true, as far as it goes. But they did weigh in on presidential politics in a way that strikes me as far worse when they joined the Court’s majority in Bush v. Gore.

The 2000 election ended up on the Supreme Court’s doorstep, and the conclusion was the strongest possible vindication of the legal realist view that politics heavily influences Supreme Court decision-making imaginable. It’s not just that Thomas and Scalia, in order to give the election to Bush, endorsed a broad, innovative equal protection claim of the kind that they had spent their entire judicial careers repudiating. They and their three colleagues refused to apply this new principle going forward (“[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”) And even worse than this, they refused to apply the principle to the Florida election recount itself.  If the equal protection clause requires uniform recount, then the vote count that showed Bush ahead was also unconstitutional–and yet the Court upheld it based on a deadline that the Court itself created.

So to see Ginsburg as crossing a line that Scalia and Thomas never did, you have to argue that joining an essentially lawless decision installing your preferred candidate in the White House doesn’t undermine the “apolitical” nature of the federal judiciary, so long as you don’t make your candidate preference explicit. I find this hard to sustain.

Admittedly, Bush v. Gore is an unusual case. But it should be obvious that, even with respect to run-of-the-mill constitutional cases, an apolitical Supreme Court is an impossibility. Questions like what constitutes “cruel and unusual punishment” or a violation of the “due process of law” or an “unreasonable search and seizure” are not technical legal questions. They involve political values. This does not mean that Supreme Court justices are identical to legislators or that legal norms are entirely irrelevant. But it does mean that, at the level of the Supreme Court, “law” and “politics” cannot be neatly separated.

As Mark Tushnet of Harvard Law School points out, Ginsburg’s comments certainly violated norms, but the attractiveness of these norms is highly questionable. Essentially, the argument that Ginsburg’s comments are a major transgression boils down to a claim that it’s important to maintain the fiction that Supreme Court justices are apolitical decision-makers to begin with. We are supposed to pretend to believe, in other words, that when John Roberts rules a crucial provision of the Voting Rights Act unconstitutional he’s just an umpire calling balls and strikes and his long-standing partisan opposition to an expansive conception of voting rights had nothing to do with it. I can understand why judges would like to maintain this fiction, but the value for the public in doing so is much less obvious. And, as Tushnet says, for Supreme Court justices to discuss their political views—but only in private—is arguably worse for democracy than Ginsburg’s candor.

Other perspectives from Lithwick, Stern,and Beutler.

No, Really, Bayh Running Is Good News

[ 51 ] July 13, 2016 |



Evan Bayh is returning to politics. The former Democratic governor of Indiana and U.S. senator has decided to enter the race for his old Senate seat, which is currently occupied by a retiring Republican. This is exciting news for people who want Democrats to retake the Senate, and bad news for people who want Democrats to retake the Senate not just for the sake of retaking the Senate, but so that those Democrats can actually accomplish things.

To amplify what Erik said earlier, I can understand this response at a visceral level. Bayh’s schitck is very, very annoying, and it would be nice if a Sherrod Brown clone were available and capable of winning Indiana.

But the claim that Bayh running is bad news for those hoping for Democrats to accomplish things does not actually make any sense. To state the obvious, it is overwhelmingly likely that Republicans will control the House until at least 2020, and if somehow Trump is enough of an anchor on the ticket for the Democrats to retain the House, they are likely to be relying on a razor-thin majority with the marginal votes being House members who like Bayh look like Nancy Pelosi. So what Bayh will stop Democrats from accomplishing legislatively is “nothing.” On the other hand, the Senate will have at least one Supreme Court nomination and possibly several to consider. And in his previous term Bayh was “nay” on Roberts and Alito and “yea” on Sotomayor and Kagan, which in terms of whether we should be happy that he’s running is in it itself dispositive. It should also worth noting that the biggest thing Democrats have accomplished since the Johnson administration, the Affordable Care Act, would not have passed without his vote, and he didn’t inflict the kind of damage on the statute that Lieberman or Nelson did. He is, I agree, very irritating and prone to reciting 90s-era Pain Caucus bullshit, but he also talks a worse game than he votes, and unless you think individual senators have a transformative effect on political discourse that presidents don’t have, that’s a tradeoff you can live with.

With judicial and executive appointments being most of the game for the first two years of the next administration, the importance of getting to 50 (and preferably 51 or 52) can hardly be overstated. Looking at the Senate races as they stood in June makes the importance of Bayh running clear. I think Democrats can be very confident about flipping Illinois and Wisconsin. But getting the at least two and preferably 4 to 5 more isn’t going to be easy. There are certainly multiple opportunities — Pennsylvania, New Hampshire, Ohio, maybe Arizona — but it’s not going to be easy even if all of the incumbents hold serve. Florida is gone. So flipping Indiana from a no-hope state to a likely Democratic win is huge. If you’re agonizing over whether having someone talk too much about deficits on Meet the Press is worth getting the first Democratic median Supreme Court justice in a generation, I would suggest rearranging your priorities.

I’ll also note that you often hear criticism about Democratic candidate recruitment efforts, and while I think people may underestimate how hard it is to find good candidates willing to fun in unfavorable contexts, there’s probably some truth to it. But many of the same people will respond to a successful recruitment effort like this by noting that the candidate recruited to run in a deep-red state isn’t Elizabeth Warren. Well, duh — candidates who have a proven track record of winning in such jurisdictions rarely are. But in the modern partisan configuration intracaucus differences just aren’t very large. If you can show me a more liberal candidate than Bayh in Indiana with a similar chance of winning, I’ll complain about Bayh running. In the actual world we inhabit, getting him to run is a coup. Just make sure to tune out his speeches.

All Hillary And No Bernie Makes H.A. A Dull…Well, Actually He Was Always Like This

[ 101 ] July 13, 2016 |


Picking among my favorite recent HA! Goodman tweet as his two seconds of fame end would require more wisdom and time than I posses, but somehow this one seems the most representative:

It’s tragic that Kubrick died before he could make The Shining II: The Second As Farce, starring Jeffrey Tambor as H.A. Goodman.

Bernie Sanders’s Neoliberal Manifesto

[ 341 ] July 12, 2016 |


Today, Vermont Senator Bernie Sanders gave a speech in which he endorsed the following tenets of neoliberalism:

  • Hillary Clinton, while to the right of Bernie Sanders, is infinitely and consequentially preferable to Donald Trump.
  • Having someone who accepts climate science and who will ensure that Barack Obama’s aggressive clean air regulations are implemented, rather than a climate science denier who will dismantle them (and appoint Supreme Court justices who will limit the regulatory authority of the EPA) is extremely important.
  • Hillary Clinton is the Democratic nominee for president because she received more votes in the Democratic primaries.
  • It is important to have a president, like Hillary Clinton, who thinks that the Affordable Care Act should be expanded rather than one, like Donald Trump, who would sign whatever legislation Paul Ryan and Mitch McConnell pass that undermines or destroys the ACA put on his desk.
  • Having Hillary Clinton rather than Donald Trump fill Supreme Court vacancies is very important for a broad range of issues.
  • “I am happy to tell you that at the Democratic Platform Committee which ended Sunday night in Orlando, there was a significant coming together between the two campaigns and we produced, by far, the most progressive platform in the history of the Democratic Party.”

For shame! But there is an explanation:

Alas, who forced him and how remains unspecified, but my guess is Debbie Wasserman-Schultz in the observatory with a candlestick.

“I Have a Season to Worry About”

[ 81 ] July 12, 2016 |


Joe Paterno, moral giant of our age:

A newly unsealed report from a risk-management expert found six different instances where sexual abuse allegations against former assistant coach Jerry Sandusky were either witnessed by other coaches or reported to university officials, including a 1976 allegation where one alleged victim made a report directly to head coach Joe Paterno.

The documents are part of a court battle in which Penn State is trying to recoup from its insurance provider millions of dollars paid out in settlements to Sandusky’s victims. That insurance provider’s defense is that Penn State officials kept the allegations secret, and in doing so failed to prevent future instances of abuse.

From the unsealed documents:

The victim, who was identified in court records as John Doe 150, said that while he was attending a football camp at Penn State, Sandusky touched him as he showered. Sandusky’s finger penetrated the boy’s rectum, Doe testified in court in 2014, and the victim asked to speak with Paterno about it. Doe testified that he specifically told Paterno that Sandusky had sexually assaulted him, and Paterno ignored it.

“Is it accurate that Coach Paterno quickly said to you, ‘I don’t want to hear about any of that kind of stuff, I have a football season to worry about?’” the man’s lawyer asked him in 2014.

“Specifically. Yes . . . I was shocked, disappointed, offended. I was insulted. . . I said, is that all you’re going to do? You’re not going to do anything else?”

Paterno, the man testified, just walked away.

Two assistant coaches and an athletic director were also informed about Sandusky molesting children in separate incidents no later than 1988.

Joe Posnanski’s…regrettable Paterno hagiography makes a big deal out of the fact that Paterno disliked Sandusky, for some reason seeing this as a defense of Paterno. But, strikingly, he never even considers the possibility that he hated Sandusky because he knew about Sandusky’s proclivity for young boys but tried not to think about it because he needed him to win. It’s increasingly difficult to avoid the conclusion that Paterno knew about it for decades. And it also helps to explain what’s always been a longstanding puzzle: why the defensive coordinator of a highly successful program that won primarily with defense never got a head coaching gig.

Sandusky remained an assistant coach until 1999. After he retired, he continued to run a foundation for young boys, which he founded in 1977. But, to be Scrupulously Fair, Joe Paterno was very assiduous about ensuring that the players who made him a great deal of money never received any compensation.

The Next Step

[ 45 ] July 11, 2016 |


One of the things a president can do in her final months is to try to get items put on a party’s ongoing agenda. Like this:

President Obama is calling on Congress to “revisit” a public option for Obamacare, citing the lack of health insurance options in some of the law’s marketplaces.

“Based on experience with the [Affordable Care Act], I think Congress should revisit a public plan to compete alongside private insurers in areas of the country where competition is limited,” Obama wrote in an article for the Journal of the American Medical Association published Monday.

 The article marks the first time a sitting president has written for the medical journal, which is considered one of the country’s most prestigious.

The public option push is part of a larger suite of changes that Obama is suggesting legislators and health advocates pursue during his final months in office. And it is one Democrats have increasingly gravitated toward heading into the election. Over the weekend, Hillary Clinton promised to push for a public option if elected — a position that Sen. Bernie Sanders enthusiastically endorsed.


Now he’s mapping out a course that not this Congress, and possibly not the one after that, but one later down the line might follow. As he prepares to leave office, he’s leaving behind both a legacy and a plan to improve it.

Moving the American system towards a more equitable and efficient one comparable to those in other liberal democracies will require action on a number of fronts: expanding Medicare and Medicaid, increasing the regulation and subsidization of private markets, and a public option. The latter is a good one to focus on: it already has substantial support in the Democratic caucus, many of its strongest opponents in the caucus are out of office, and passing it will help with the other issues. It’s not viable in the short term, but it should be right on the radar the next time there’s unified Democratic government.

St. Stein Speaks! Why, Oh, Why, Isn’t Bernie Sanders As Stupid About Politics As I Am? Edition

[ 264 ] July 11, 2016 |


Dr. Jill Stein is re-extending an invitation:

Jill Stein, who is expected to be endorsed at the party’s August convention in Houston, told Guardian US that “overwhelming” numbers of Sanders supporters are flocking to the Greens rather than Hillary Clinton.


Stein insisted that her presidential bid has a viable “near term goal” of reaching 15% in national polling, which would enable her to stand alongside presumptive nominees Clinton and Donald Trump in televised election debates.

That word “viable” I do not think etc. But let’s say that it was. My question: under what scenario does Donald Trump not become president if a hypothetical Green candidate (who, to be Scrupulously Fair, Stein seems to realize is not her) got anything like 15% of the vote? I should want the left to split its vote in an election involving one of the largest gaps between the parties in American history why?

But in a potentially destabilising move for the Democratic party, and an exciting one for Sanders’ supporters, the Green party candidate said she was willing to stand aside for Sanders.

This is simultaneously pathetic and so presumptuous as to be vaguely creepy, like a high school boy declaring that he would be happy to ditch his prom date if Margot Robbie would agree to go with him.

“I’ve invited Bernie to sit down explore collaboration – everything is on the table,” she said. “If he saw that you can’t have a revolutionary campaign in a counter-revolutionary party, he’d be welcomed to the Green party. He could lead the ticket and build a political movement,” she said.

And here’s the rub. “Clearly, the passage of the Democratic Party’s most progressive platform in decades, along with the substantial leftward shift of the Democratic Party’s caucus, has convinced Bernie Sanders that the only way to effect political change is through third-party vanity campaigns that are either pointless onanism or actively destructive.”

Comparing Sanders to Nader and Stein really is instructive. Sanders has had, as both a legislator and a presidential candidate, a real, material impact on the Democratic Party, while Nader and Stein have not. If using 2016 of all years to send the message that you can only effect change from outside the party seems insane, it’s because it is. But it’s also perfectly consistent: this theory of political changes has no actual history of working and the idea that parties only change based third party threats is obviously absurd if you have even a cursory knowledge of American political history, so what’s one more data point to ignore?

And I guarantee a small faction of Sanders dead-enders will discover that the only really important issues are the issues where Sanders didn’t win the platform fight, and that the unprecedented fact that the runner-up was not permitted to write the entire party platform but merely influenced it just shows the extraordinary perfidy of the Democrat Party, which after all RIGGED its primary campaign so that its nomination went to the candidate with the most voters and pledged delegates.

I’m Sensing A Pattern Here

[ 61 ] July 11, 2016 |


And now, the flood:

Fox News host Gretchen Carlson may be the highest-profile woman to accuse Roger Ailes of sexual harassment, but she is not the first. In my 2014 biography of the Fox News chief, I included interviews with four women who told me Ailes had used his position of power to make either unwanted sexual advances or inappropriate sexual comments in the office.

And it appears Carlson won’t be the last, either. In recent days, more than a dozen women have contacted Carlson’s New Jersey-based attorney, Nancy Erika Smith, and made detailed allegations of sexual harassment by Ailes over a 25-year period, dating back to the 1960s, when he was a producer on The Mike Douglas Show. “These are women who have never told these stories until now,” Smith told me. “Some are in a lot of pain.” Taken together, these stories portray Ailes as a boss who spoke openly of expecting women to perform sexual favors in exchange for job opportunities. “He said that’s how all these men in media and politics work — everyone’s got their friend,” recalled Kellie Boyle, who says Ailes propositioned her in 1989, shortly after he helped George H.W. Bush become president by serving as his chief media strategist.

Six of the women agreed to speak with New York publicly for the first time. Two spoke on the record; the others requested anonymity for reasons that include shame and fear of retribution. “I didn’t tell my husband, it was so mortifying,” said Marsha Callahan, a former model who says Ailes harassed her in the late ’60s, shortly before he would become Richard Nixon’s media adviser.

“We Also Need To Stop Having Presidents Who Owned Casinos and Have Bad Haircuts”

[ 167 ] July 8, 2016 |


I present to you the funniest thing that will ever be written about the 2016 elections:

One thing matters. One thing only. That is restoring the rule of law, and only a Trump presidency can do that.

Protecting Police Brutality

[ 139 ] July 8, 2016 |

An essential piece by Mark Joseph Stern about how Louisiana law protects police officers who break the law, including those who kill people:

Police officers in Baton Rouge, Louisiana, appear to have shot and killed a 37-year-old black man named Alton Sterling on Tuesday morning. A video of the encounter shows the officers pinning him to the ground and then at least one of them shooting him. Louisiana Democratic Gov. John Bel Edwards has announced that the U.S. Department of Justice will investigate the incident. There are many reasons to be glad that the DOJ, rather than the Baton Rouge Police Department, is leading the investigation, including the DOJ’s independence and impartiality, as well as its mandate to enforce federal civil rights laws. But here’s a less obvious advantage: Had the state left the investigation up to the local police department, Louisiana law would have given the officers 30 days after their alleged wrongdoing before speaking to investigators.

This grace period is one of several laws in the state’s Police Bill of Rights that gives law enforcement officers suspected of illegal conduct privileges far beyond those afforded to regular citizens. For instance, the Police Bill of Rights also restricts the amount of time that officers may be interrogated and provides them with the ability to demand breaks for “reasonable periods,” granting officers “rest” and the ability to tend to “personal necessities.” The Police Bill of Rights only applies to internal investigations—but in low-profile cases of wrongdoing, those are often the only investigations that occur.

While some of the special rights granted to police officers are fairly benign, others are seriously troubling for criminal justice reformers. The 30-day grace period, in particular, could allow officers suspected of misconduct to get their stories straight amongst themselves before talking to investigators—in order to present a favorable narrative with no inconsistencies. That risk would be especially strong in a case like Sterling’s, where the most important witness to the alleged crime was the victim himself.

Civil liberties for me, but not for thee…

It’s Like, How Much More Modo Could This Be? And the Answer Is None. None More MoDo.

[ 77 ] July 8, 2016 |


Maureen Dowd’s latest entry begins with a lengthy, rambling, do-I-really-have-to-write-800-whole-words-this-week anecdote about how she can’t bear to be alone in public but had to in Paris recently and went out with an J. Crew branded onion on her belt which apparently isn’t the style at the time although she was assured that it was, which leads us to the most perfect Maureen Dowd sentence ever:

I was armed with a bunch of newspapers, so I could pretend to study up on the Brexit vote convulsing Europe.

Her terror of eating alone forced her to take an extreme measure she would otherwise never consider: reading a newspaper. But, don’t worry, she was just “pretending” to learn something about Brexit, which she then goes on to opine about by talking to some random people and finding out that they confirm what ever superficial theater-critic idea she had to begin with. Maurren Dowd is paid a six-figure salary, ostensibly to write about politics.

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