Good Friday Morning! A few things have happened since the last newsletter, to put it mildly. The death of Ruth Bader Ginsberg shakes up everything in the political world. Not only is the future of the Supreme Court in the air, but her death also has the potential to completely upend the entire presidential race. The funeral and memorial services for RBG are wrapping up this week and over the weekend we’ll get the White House’s new nominee to fill that spot. All of this is against the backdrop where people are voting. Everyone is guessing at how this impacts the race, but it’s hard to square the continued insanity in the world with the “stability” in the polls.
RealClearPolitics has Biden with a 6.5 lead over Trump in national polls, with FiveThirtyEight at 7.1 for Biden. Trump has settled in at 43% which keeps him at historical norms, he’s fully recovered from the summer slump, but he’s also stopped gaining. Trump needs Biden to slide somewhere around 46-48% and Trump needs to climb, at least, to 44.5 – 46% to have a punchers chance going into election day. The Senate is also in play with Democrats favored to win it back. If Trump can’t climb beyond 43%, he really needs Biden to slide in the polls. Maybe that happens at the first debate on September 29th.
This week, I start out recapping my predictions on what’s going to happen in the SCOTUS nomination process. And then break down the compromise ideas pitched by David French and Jonah Goldberg. Links to follow.
Where you can find me this week
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Why both parties want more power in public education – The Conservative Institute.
Republicans should not negotiate with Democrats on Supreme Court spot – The Conservative Institute.
The French-Goldberg Compromise for SCOTUS Nominations.
Sometime this weekend, we’ll officially have a new nominee for the United States Supreme Court. If you missed the last podcast, I made two predictions. 1) There will be a new Supreme Court justice by the end of the year. And 2) that nominee is likely to be Judge Amy Coney Barrett. At the time, I set 90% odds on both things occurring, and if I could have laid money on it, I would have done it. I’m more confident of that now.
Mitch McConnell and Republicans have the vote to confirm Barrett at their leisure, before or after the election. The only way I think we experience a delay here is if the nominee is not Barrett. Ben Domenech, the founder of the Federalist, tweeted in part, “[Senator’s are] prepped and ready for Barrett to be the choice. There is no handwringing. This is happening.” Everyone both expects and wants Barrett as the nominee. If Trump bucks that, which I don’t expect, watch for an uproar on the right equivalent to the Harriet Myers episode with Bush.
I am pro-Barrett and would have been open to her being the nominee during the Kavanaugh hearings without question. And suppose the media attacks Barrett and her religious faith, as is already happening. In that case, I think the nomination process helps Trump. It’s not a good look to attack Catholics with Florida and Midwest are up for grabs. It’ll be a bumpy ride for her, but it’s a battle worth having. Democrats overstepped with Gorsuch and Kavanaugh. I expect more of the same here.
That’s the 30,000-foot view of where we’re going. The only way this process goes sideways is if Trump goes with someone not named Amy Coney Barrett. If it’s not her, all bets are off.
The French-Goldberg compromise offer.
That 30,000-foot view was the obvious path last week. But that didn’t prevent some people from trying to divert it other directions. Aside from insincere arguments from Democrats, David French and Jonah Goldberg offered what they pitched as a compromise position. While they said their opinions were similar, the are some nuanced differences. I disagree with both. We’ll start with French and end with Goldberg.
The French compromise.
French’s position is border-line disingenuous to me. He’s argued many times in newsletters and podcasts that the fear-mongering from the Trump campaign on Biden being beholden to the radical left is false. And he uses Biden’s victory in the primary to prove that Democratic Party isn’t as extreme as people say. That’s a fair argument to make. But if you argue that, you can’t also claim Senate Republicans should reach a compromise deal with Democrats towards “unilateral disarmament,” because you’re concerned about Democratic extremism. Either that threat is real or not. If Biden is an actual check to the far-left, then what’s the political need for compromise? French’s argument here suggests that he fears Biden will get run over by the far-left in the event of a victory.
French’s argument rests on concern over leftist-extremism. He says we’re in dire threat of violence and getting torn apart as a nation:
But there is a deep and profound danger to stripping politics of principle and instead appealing to power alone. Americans are deeply and profoundly divided. As I write in my new book, Divided We Fall, a toxic combination of geographic clustering, negative polarization, and mutual enmity is placing great strains on our union.
When politicians’ words mean nothing – when only partisan interests prevail – it damages our social and cultural fabric. It deepens public anger and mistrust and unacceptably raises the stakes (and thus the tension) around each and every American election.
The problem here is that politician’s words already mean nothing with regards to the Supreme Court. We’ve tried this compromise road before, and it failed. Once political incentives shifted, and the parties switched power, the compromise got ditched for increased power. Republicans threatened to eliminate the judicial filibuster in the Bush administration (going nuclear), and the “Gang of 14” appeared, saved the filibuster, and got Bush’s nominations through. Harry Reid ditched that deal after the next election. Some of the Republican moderates who went with that deal (John McCain) voted with McConnell to end the filibuster in 2017. And here we are. Compromise failed and saved nothing, not even principles.
We know, and French admits in his piece, that Republicans have the power and authority to put a new justice on the Supreme Court. No rules or norms are getting broken. These are the rules Democrats gave to Republicans. The only violence and anger French can be identifying come from the radical left. Leftists are pitching everything from court-packing to throwing out institutions altogether to recapture power. French never stops to ask whether or not these are legitimate threats or power politics threats. He maligns power politics, but only identifies it on one side of the ledger.
His compromise exists to appease the powerless left. He never steps back to address whether or not that anger is legitimate or ill-placed. As French acknowledges, the Republican position on putting a new justice in RBG’s place is a form of power politics. However, it’s not devoid of principle, as he implies. Republicans want a certain kind of justice on the court, in this case, ACB, who everyone, including French, acknowledges is a good judge. But French seems to wholesale accept that the rage on the left has a grain of truth to its grievances and isn’t just an emotional ploy in a power politics environment. Trial lawyers quip that when you have the law on your side, hit the law; when you have the facts, hit the facts; when you have none of the above, hit the table. Democrats are hitting the table.
And in truth, that’s all the rage is. It’s a fit of political anger that will, without question, come with political ramifications. But that’s not an excuse to not act. Half the reason we’re in this position is the Democratic Party’s decision to politicize nomination hearings and use the filibuster as a tool. The other half is the liberal Supreme Court in the 20th Century legislating from the bench and giving itself more power.
Nominating conservatives to the court to curb this power goes a long way towards fixing the problems that French says we have, and I’d agree with him on that point. The great weakness in French’s argument is that he thinks we should negotiate without providing a shred of evidence that the anger, in this case, is legitimate. It seems far more worthy to point out the wrongness of the leftist outrage than capitulating to it.
The Goldberg compromise.
Jonah Goldberg wrote two pieces on this point. The first one was close to French’s article, and all my criticisms of French apply to the first Goldberg column. The second column he wrote, however, is more nuanced. Goldberg argues there is a principle getting broken, or an abuse of power. I’ll let Goldberg explain the argument. He’s responding to a line from Noah Rothman at Commentary, who says in part, “Would it be a display of hard elbows to confirm a new justice this late into a presidential election year? It would. Is it a reckless abuse of power? In no conceivable way.”
I don’t think appointing a justice after voting has already begun is anything like an impeachable abuse of power. That’s dumb, and Democrats who spout the idea are making fools of themselves.
But is it really not an abuse of power in any conceivable way? I suppose it depends on what you mean by “abuse of power.”
The word hypocrisy muddies many conversations because we sometimes mistake it for mere inconsistency. And sometimes we use it as a substitute for flat-out lying. What people are calling “hypocrisy” on the part of Lindsey Graham and others is better understood as simple and outright deceit. Or, if you prefer, vow-breaking. Graham claims that the legitimately outrageous behavior of Democrats during the Kavanaugh hearings lets him off the hook for his assurances that he would never support a nomination during an election year, never mind during an election that is already taking place. …
The only problem with this argument: Graham also made these assurances after the Kavanaugh hearings. If all bets were off after that travesty, why repeat the promise—and ask people to hold him to it?
This strikes me as an abuse of power. It’s certainly an abuse of the public trust and public responsibility.
I agree with him that the two sides’ massive flip-flop is a form of hypocrisy and deceit. The issue here is who is doing this? Elected senators. We have a way to check the bad behavior of anyone in an elected office: elections. Political misbehavior is always on the ballot. If you don’t like a politician’s behavior, you can choose to vote or not vote for them or any person on the ballot.
Goldberg is right; this isn’t impeachable behavior. But a voter can take whatever opinions they want to the ballot box. And this could end up impacting Lindsey Graham, he’s begging for money on Fox News. Graham has made the political calculation that the reward here is greater than the political risk.
And that’s something missing in both Goldberg and French’s pieces: political incentive. Republicans know the risk; they’ve calculated that the reward is far greater, which means they aren’t incentivized to cut compromise deals. Republicans have an unmistakable generation-shifting prize in front of their faces versus the unclear intimidations from Democrats (who have screamed similar threats for years). Some Republicans might view the reward here great enough to go down in an election. Nothing in any compromise deal shifts that incentive structure.
Goldberg makes one more point:
Then there’s the actual process: Conducting serious hearings amid the final weeks of a presidential campaign is an abuse of power. The hope and expectation among conservatives is that Trump’s nominee—presumably Amy Coney Barrett—will be the crucial vote for overturning Roe and other long-sought conservative priorities. I share that hope and expectation. But rushing a nominee through the process on a nakedly partisan basis while literally scoffing at all of the norms and precedents you once said were vital to the legitimacy of both the court and the senate is an abuse of power. Maybe it won’t destroy the court’s credibility. But I don’t think any reasonable person can argue it won’t hurt it.
That’s a fair point. On issues of contentious issues, you need a Supreme Court that has credibility before that nation—ramming a nominee through before the election could impact that perception with the people. If people believe the Supreme Court is illegitimate, it influences how people accept new court precedent.
The hypothetical I’d pitch to counter that: what’s the alternative? Let’s say all this was happening in 2019. Would that change the arguments offered by the left on delegitimizing the court? No. Legal scholars on the left have been making accusations of illegitimacy for years now. Everyone from Jeffrey Toobin to Joan Biskupic has argued the right is a threat to established stare decisis for years. They were passing out buttons with pictures of coat hangers for the nomination process of… David Souter.
The only difference here is that Republicans are pushing through the nomination before the election, granting some legitimacy to leftist complaints. Is that worth contemplating? Possibly. That might make it worth waiting to confirm after the election. Still, the weight of that argument isn’t enough to defeat the confirmation altogether. And Republicans should get the potential nominee on the court, whichever path ends up being best. Republicans have calculated the risk is worth the pain. The compromise solution lowers none of the pain; it just means Republicans feel the heat from their base and Democrats, while Democrats get concessions in a situation where they have no power. It encourages throwing more outrages every time Republicans have power. It’s inevitable political pain versus the uncertain threats of Democrats, that’s an easy political calculation for any politician.
I’m glad people like Jonah and David exist and ask these questions, though. Conservatives are the only ones weighing these profound questions. Democrats would push through a nominee, no problem. We know this because we’ve seen it in the past. We saw Harry Reid do whatever it took to keep conservatives out and get liberals onto the court. The same thing happened with Jimmy Carter:
The week after President Jimmy Carter lost his 1980 re-election bid, he announced the judicial nomination of a close ally of Senate Judiciary Committee Chairman Ted Kennedy. The nomination sailed through the senate, which confirmed the First U.S. Circuit Court of Appeals judge 80-10 less than a month later, six weeks before Inauguration Day. That nominee, Stephen Breyer, now sits on the Supreme Court.
Justice Breyer’s second nomination, in 1994, got more attention, but his first in 1980 neatly illustrates a constitutional principle: The president’s authority to make judicial nominations, and the senate’s power to weigh them, is unaffected by the electoral calendar.
Democrats never question how their attacks delegitimize the court. They’ve only raised these legitimization issues as conservatives have started fighting back. Democrats have always played power politics with the Supreme Court. And now Republicans are answering in kind. French and Goldberg’s issues are good mental exercises, but they don’t change what’s about to happen. There’s going to be new justice on the court by the end of the year, likely sooner. Book it. And the more conservatives strip legislative power from the court, the more legitimization the court gets in the long term.
Links of the week
Dred Scott’s Great-Great-Granddaughter Wants To Make His Grave ‘A Place Worthy Of Pilgrimage’ – St. Louis Public Radio.
Where Is Biden’s Ground Game? As Biden faces an enthusiasm gap in the polls, there are signs the campaign’s field operation is lagging. – Walker Bragman, The Daily Poster
Democrats are pivoting to embrace in-person voting – Alexi McCammond, Margaret Talev – Axios
Nietzsche Was Right: Review: ‘Dominion: How the Christian Revolution Remade the World’ by Tom Holland – Timothy Keller, The Gospel Coalition
Amy Coney Barrett Demolishes the Qualified Immunity Claim of a Detective Accused of Framing a Man for Murder: The case is an encouraging sign that the SCOTUS contender is not the sort of judge who bends over backward to shield cops from liability for outrageous misconduct. – Jacob Sullum, Reason Magazine
Get Your Facts Right – Jim Geraghty, National Review
Demographic shifts since 2016 could be enough to defeat Trump. But it’s complicated: Analysis: Trump’s core demographic is declining. Our new interactive tool lets readers test how changes to the U.S. electorate might affect the election. – David Wasserman, NBC News
The New York Times and Nikole Hannah-Jones abandon key claims of the 1619 Project – Tom Mackaman and David North, The World Socialist Web Site
 Amy Coney Barrett’s ‘Cult’ – Mona Charen, National Review
The Left Wants Regime Change – Rich Lowry, National Review
Twitter Thread(s) of the week
Satire of the week
Constitution To Be Replaced By List Of Ginsburg’s Last Wishes – The Babylon Bee
Mourners Honor RBG With Emotional 21-Molotov-Cocktail Salute – The Babylon Bee
Thanks for reading!