Regulatory Policy

New York’s Restaurant Disaster

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Diners eat lunch in outdoor seating in New York, June 22, 2020. (Mike Segar/Reuters)

With New York City sinking ever deeper into financial difficulty, it’s worth paying attention to this report over on the home page by Brittany Bernstein.

Here’s an extract:

Half of New York City’s bars and restaurants are in danger of permanently closing in the next six months as a result of financial fallout from the coronavirus, according to an audit released Thursday by state comptroller Thomas DiNapoli.

The comptroller found that in the next six months, between a third and a half of all city bars and restaurants could close their doors for good, eliminating over 150,000 jobs.

“The industry is challenging under the best of circumstances, and many eateries operate on tight margins,” DiNapoli said. “Now they face an unprecedented upheaval that may cause many establishments to close forever.”

As the coronavirus tore through the city this spring, restaurants were forced to close their doors to indoor dining, allowing only takeout, and later outdoor dining, for months. Restaurants were allowed to host indoor diners for the first time in six months on Wednesday, though only at 25 percent capacity.

The financial impact of the reduced service left nearly three-quarters of employees in the city’s restaurant industry jobless at the pandemic’s peak, the report said. The industry’s employment fell to just 91,000 jobs at that time, down from 317,800 jobs in 2019 when the industry paid out $10.7 billion in wages and amassed more than $27 billion in taxable sales.

The financial ruin has had the greatest impact on the city’s minority communities, the report found; in 2018 some 60 percent of restaurant workers living in the city were immigrants — 44 percent of whom were Hispanic and 20 percent were Asian….

The disaster reflected in this report is not, of course, confined to the numbers, horrific though they are, but also to what those numbers represent in ruined livelihoods, lost futures, and despair. And that is before starting to think about the knock-on effect of those lost businesses, lost revenues, and lost incomes on other businesses and thus their employees. Then (as alluded to in the article) there are the consequences for the city’s battered budget. And, of course, the woes don’t stop there.

DiNapoli’s reference to “an unprecedented upheaval” is artfully worded. Pinning the blame on a virus would not be enough. The reality is that all this was all set in motion first by the arrival of COVID-19 in this country, then by the initial botched response to this threat (at many levels of government), and then by the way that these errors were compounded first by ill-judged underreaction and then by ill-judged overreaction.

To repeat something I wrote the other day:

[Lockdowns] were easy enough to defend — for a short time. We knew a lot less about COVID-19  then. And there was also an understandable fear that health-care systems would be overrun. The idea was to buy time to flatten the curve, not to eradicate the virus. In the absence of a vaccine, there was no chance that COVID-19 would simply go away. A lockdown could postpone the spread of the disease, but it could never have been sustained for long enough to have any chance of reducing it to, at most, a nuisance, without destroying the economy. Rather, prolonging lockdowns kept the virus at bay for long enough to ensure that its recurrence would coincide with the onset of flu season and trashed the economy while it was at it.

And as I noted in the same article, the lockdowns have had adverse health consequences too.

Dealing with COVID-19, a highly infectious, and dangerous disease (particularly to certain categories of patient) — and certainly no “flu” — was never going to be straightforward. But that was no excuse for failing to find a way to live alongside the virus in a fashion that avoided shutting down so much of the economy for so long a time, even in a hotspot such as New York City.

Intelligent management of the pandemic was always going to involve restrictions, but the resort to the heavy-handed command-and-control of Cuomo and de Blasio showed few signs of intelligence and revealed a management style notable mainly for its crudity. What we saw was a reflex fueled by panic and ideological habit, made even more damaging by a seeming inability to realize that risk and reward shift over time: What might have been sensible in March was close to madness in May.

And the bill for that failure is rising by the day.

Meanwhile, if anyone can explain the risk-reward calculation that went into capping indoor dining at 25 percent of capacity rather than, say, fifty percent, I’d be interested to hear it. Restaurants run on very thin margins. Finding the right balance between necessary health precautions and giving large numbers of restaurants at least a chance of survival was never going to be easy. But opting for 25 percent was a sign of political leaders who were not even pretending to try.

Elections

A ‘Bipartisan Commission’ to Vet Major Party Nominees for President?

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President Donald Trump and Democratic presidential nominee Joe Biden stand on stage at the end of their first presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

Via Mediaite, I see Frank Figliuzzi, a former FBI assistant director, declared on MSNBC today that he wants all future presidential nominees to be vetted by a bipartisan commission.

“We’ve got to have a national discussion about how we vet a presidential candidate. We screwed this up. Whether it’s the media not digging deeply enough, whether it’s a time to have a discussion about a bipartisan committee that demands tax returns, make that a requirement, or exposes financial pictures for candidates. But we got this wrong, and this can’t happen again,” Figliuzzi said.

Figliuzzi has every right in the world to detest the selection of the Republican Party in 2016 and 2020. But in the early months of 2016, 14,015,993 people voted in Republican primaries to nominate Donald Trump for president — 44.95 percent of all votes cast. The next-closest candidate was Ted Cruz with 7,822,100 votes and a bit more than 25 percent of all votes cast.

What does Figliuzzi think should have happened? Some “Bipartisan Commission of Approving Presidential Candidates” should have demanded Trump’s financial records, or reviewed them without his consent, and then vetoed the selection of Republican primary voters? Why would Republicans allow a commission — whose membership is presumably at least half members of other parties — to decide who represents them in a presidential election?

You can think the Republican primary voters of 2016 made a terrible mistake. (I think that!) But that doesn’t make those voters any less empowered, under the structure of the party and the traditions of American political parties, to make the selection. Trump won the primary and the general election fair and square; we don’t need yet another blue-ribbon panel of retired lawmakers to come out and study an issue and come out with some watered-down consensus conclusion.

As for “the media not digging deeply enough” — does Figliuzzi think the media didn’t dig into Trump before the 2016 election? Before Trump ran for president, he had twelve biographies written about him, not including his own self-aggrandizing ghostwritten books. Trump had been in the public spotlight since the early 1980s.

Sure, the campaign started with major media institutions giving Trump the equivalent of $2 billion in free media — including complete live coverage of his speeches, phone interviews on morning shows, and endless discussion of Trump at the expense of other GOP candidates. Some of us remember, “nothing too hard, Mika.” CNN’s Jeff Zucker offered him advice for the debate. CBS CEO Les Moonves laughed, “[Trump’s campaign] may not be good for America, but it’s damn good for CBS.”

The media loved Trump when he was blowing up the GOP primaries — and only turned hard against him in the 2016 general election. But once they did, boy, did they turn hard: “During his best weeks, the coverage ran 2-to-1 negative over positive. In his worst weeks, the ratio was more than 10-to-1.”

Just what aspect of Trump does Figliuzzi think the media didn’t examine enough before 2016? His business failures? His slippery record with the truth? His womanizing? His unfamiliarity with policy details? His temper? His addiction to blurting out any idea that pops into his head on Twitter? Just what does Figliuzzi think the media could have or should have found that would have altered the course of the election?

What if enough Americans in enough states had a clear view of Trump’s glaring character flaws, and picked him anyway, because they really, really, really didn’t want Hillary Clinton to be president?

Come to think of it . . . would Hillary Clinton have passed the vetting and background check from a Bipartisan Commission?

Law & the Courts

Thomas Edsall Doesn’t Know What Originalism Is

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Thomas Edsall writes in the New York Times that Republican appointees to the federal bench are “armed with an originalist doctrine that enables subjective interpretation of the Constitution.” He declines to say how originalism is unique in allowing judges to interpret subjectively — anyone appointed to the bench possesses the ability to do that. In fact, originalism is unique in that it advocates an objective standard for interpreting the Constitution: What did the text mean at the time it was written? This standard stands in stark contrast to the consequentialist approach favored by Democratic appointees that turns judges into legislators.

The entire column is a mess — Edsall believes that it takes “intellectual jujitsu” not to adhere to the principle of stare decisis in every case — but it’s his casting of originalism as a boogeyman that serves as a catalyst for the train wreck.

World

The New York Times Publishes a Defense of the Hong Kong Crackdown

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Police attempt to disperse a mass gathering in Hong Kong during a protest for the release of twelve activists detained on the Chinese mainland, October 1, 2020. (Tyrone Siu/Reuters)

The New York Times published an op-ed by Regina Ip, a pro-Beijing politician widely known for her ambition to become chief executive of Hong Kong. The piece is entitled “Hong Kong Is China, Like It or Not.” (She seems to like it.)

Ip, a longtime apologist for Chinese Communist Party control over the city, led the charge on anti-subversion legislation that spurred mass protests in 2003. What does she think of democracy? “Adolf Hitler was returned by universal suffrage, and he killed 7 million Jews,” she said at the time.

So naturally, the Times is publishing this esteemed figure, whose comments on an issue of international concern are apparently more reliable than what a sitting U.S. senator has to say. As far as the implications of Ip’s argument are concerned: The Chinese government’s crackdown in Hong Kong has obliterated the remaining freedoms that its residents once enjoyed, and provided it a thin veneer with which it targets free people everywhere, including U.S. citizens. But don’t expect much outrage from the NYT’s newsroom about this piece.

It’s a PR coup for the dictatorship that’s snuffed out the remaining elements of democratic governance in the city. The only reasonable argument for publishing it would have been to expose the CCP’s aims — but these are already widely known.

Still, Ip’s defense of Chinese power is startlingly blunt. The op-ed is an unabashed statement of China’s aims in Hong Kong. It’s helpful that Ip says the quiet parts out loud [emphasis mine]:

To some, the new national security law is especially chilling because it seems simultaneously vague and very severe. But many laws are vague, constructively so. And this one only seems severe precisely because it fills longstanding loopholes — about subversion, secession, local terrorism, collusion with external forces. One person’s “severe” is someone else’s intended effect.

Beijing’s intended effect, clearly, is to bring its systems of social and political control to Hong Kong. This is something that few people doubt. But Ip, even as she effectively confirms that the CCP intentions are to do away with dissent in the city, argues for its continued international treatment as an independent financial hub:

A realistic goal for Hong Kong ought to be remaining the freest and most international city in China and retaining its unique international status, thanks to the city’s many bilateral agreements with foreign countries and its membership in numerous international organizations.

Foreign governments should not benchmark what happens in Hong Kong against standards that prevail in Western countries; those are governed by a political system entirely different from China’s. Instead, they should benchmark Hong Kong against the rest of China, and measure how the city can maintain its unique characteristics — openness, a commitment to personal rights and freedoms, respect for the rule of law and the ability to reinvent itself economically.

What a preposterous idea. Western governments will continue to benchmark Hong Kong’s freedoms against those of free societies, and they should do so if the city’s officials ever want it to be treated as such again.

The Times should never have published this op-ed. It adds little to our understanding of the CCP’s conduct in the city, the objectives of which have been clear from the start, and, worse, it might even convince some people to accept pro-CCP apologia as a legitimate argument for leaving post-NSL Hong Kong well enough alone.

But since it has already been published, at least the Trump administration can quote from it the next time that it moves to tighten the sanctions targeting pro-CCP officials such as Ip.

Law & the Courts

Mitch McConnell Should Try to Cap the Number of Justices at Nine

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Senate Majority Leader Mitch McConnell (R-KY) speaks to reporters following the Senate Republicans weekly policy lunch on Capitol Hill in Washington, D.C., June 30, 2020. (Jonathan Ernst/Reuters)

The Democratic nominee for president has refused to state whether he would support an effort to pack the Supreme Court. To add new justices for the first time since 1869 for purely partisan reasons would destroy the Court’s legitimacy, spur further court-packing down the line, and break Joe Biden’s promise to bring a sense of normalcy back to our politics. Indeed, packing the Court would be far more destructive — both culturally and institutionally — than anything Donald Trump has done as president.

Some have suggested that it is Republicans’ responsibility to prevent Democrats from causing such damage by agreeing not to confirm a replacement for the late Ruth Bader Ginsburg — an action supported by past precedent, and one that Republicans have the constitutional authority to take. Those voices have argued that because Congress has the constitutional authority to expand the court, a GOP that confirms Amy Coney Barrett would not have a leg to stand on in arguing against court-packing. Yet any reasonable observer should be able to see the difference between taking the routine step of filling a vacant seat and adding seats to erase a legitimately acquired originalist majority on the Court, so I reject out of hand that any such deal would be worth pursuing — and so have Senate Republicans.

There is something that Mitch McConnell could and should do, however: push for a constitutional amendment to cap the number of justices at nine. Right now, the Senate is busy turning Judge Barrett into Justice Barrett, but as soon as that important work is done, McConnell should shift gears and try to save the Supreme Court. It would be an attempt doomed to fail in that Senate Democrats would refuse to vote for it and Nancy Pelosi would never put it to a vote in the House. But besides being a good idea on the merits, it would put Democrats on the record and allow Republicans to get out ahead of the issue in the media and quash it before January.

Film & TV

The Comey Rule and Citizens United

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Brendan Gleeson as President Trump in The Comey Rule (Vanity Fair/IMDb)

Earlier this week, Showtime concluded The Comey Rule, a two-part miniseries adaptation of former FBI director James Comey’s book A Higher Loyalty. Both the book and the series depict the most controversial parts of Comey’s tenure: the tail-end of Obama’s presidency, and the first few months of Trump’s. Comey has become something of a Resistance hero since Trump removed him from his position, a symbol of the liberal fantasy that Trump would be removed from power by non-electoral means.

I have neither read Comey’s book nor watched the miniseries, nor do I plan to (only a mild curiosity about Brendan Gleeson’s performance as Trump inspires any interest in me). These attempted recreations of recent events tend to have a stilted quality, partially a product of catering to their intended audience (which I definitely am not). But my lack of interest in the show would never extend to a desire to see it banned. This assertion may seem apropos of nothing, but it is not — and here’s why.

Something else the Left has a fantasy about is the 2010 Supreme Court decision in Citizens Election v. Federal Election Commission. In the liberal imagination, this decision essentially allowed corporations to take control of our political system. In reality, the item directly at issue in the case, which led to the Court’s decision, was a movie whose release the then-operative campaign-finance laws had stymied. It’s true that Hillary: The Movie was an anti-Clinton effort spearheaded by Citizens United, but the regulations that held up its release before the 2008 primary remain bizarrely onerous. From the Court’s decision [some citations omitted]: 

Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited—and still does prohibit—corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections. BCRA §203 amended §441b to prohibit any “electioneering communication” as well. An electioneering communication is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. §434(f)(3)(A). The Federal Election Commission’s (FEC) regulations further define an electioneering communication as a communication that is “publicly distributed.” 11 CFR §100.29(a)(2) (2009). “In the case of a candidate for nomination for President … publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.” §100.29(b)(3)(ii). Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications.

Citizens United wanted to release Hillary: The Movie within 30 days of the 2008 Democratic primary; it was concerned that existing campaign-finance law prohibited this, the source of its original suit. As the opinion of the Court further noted, it had ample reason to believe so: 

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

The Comey Rule‘s creators have surely sold their program as a honest, accurate depiction of the events Comey describes. And maybe it is. But if, in doing so, it created an unflattering depiction of President Trump, within 60 days (note the difference) of a general election contest for federal office, would this have fallen afoul of preCitizens United law? I am no lawyer, and I am also wary of excessive Supreme Court deference, but here again the Court is informative:

Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. 2 U. S. C. §431(9)(A)(i). Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design.

Maybe Showtime would have counted as an “exempt media corporation,” and The Comey Rule would have encountered no issues. But the Citizens United decision points out the double standard this would create, allowing corporations with explicit media operations rights that those without them would not have.

At any rate, I am sure that those involved in making The Comey Rule are grateful not to have had to worry or really even think about government censorship. For many before the Citizens United decision, this was a serious concern. That is what the case was about.

Elections

Biden Is Having Another Quiet Day . . . Which Is What His Campaign Wants

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Democratic presidential candidate Joe Biden speaks to supporters in Johnstown, Penn., September 30, 2020. (Mike Segar/Reuters)

At 10:06 a.m., the pool reporter on the Biden campaign for the day, Brittany Shephard of Yahoo! news, sent word from Wilmington that “the Biden campaign has called a lid on in person events for the day. Biden’s participating in a virtual fundraiser at 5 p.m., though, so stay tuned for more reports around that time.”

Recall that back on September 17, Biden “assured Senate Democrats he would mount a vigorous effort in the campaign’s final stretch, barnstorming through key swing states and helping crucial Senate races in the process.”

We have observed Biden’s exceptionally light campaign schedule again and again and again and again. (I suppose Biden did have a late night Tuesday and he did have the train ride and events yesterday.) But there is little sign that Biden’s light schedule is hurting him in the polls, or even generating much negative press coverage. The Democratic nominee is more or less taking every third day off, and everybody seems okay with that.

Perhaps against a different rival, Biden’s relative absence from the campaign trail would be a bigger factor. But in just the past 24 hours, Trump has had to clarify his position on the Proud Boys, insisted Mexico is paying for the border wall, joked that he will serve more than four more years — “What are they going to do when in eight, 12, maybe 16 years, I say, “Let’s hang it up. Let’s hang it up,” — declared that Biden “will turn Minnesota into a refugee camp,” required food for needy families from the U.S. Department of Agriculture include a letter from him, and declared that McDonald’s french fries are the secret to not going bald.

If Biden even wanted to break into this news cycle, could he?

U.S.

FBI Director Wray Didn’t Call Antifa an ‘Idea,’ He Called It a ‘Movement or Ideology’

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FBI Director Christopher Wray testifies before a Senate Appropriations Commerce, Justice, Science and Related Agencies Subcommittee hearing on the Bureau’s proposed 2020 budget, May 7, 2019. (Aaron P. Bernstein/Reuters)

One of the hallmarks of this era is how our political fights revolve around off-the-cuff statements from political leaders that are often inaccurate or not-quite-accurate, but because of tribalism, partisans feel the need to defend and attack.

The line from all Democrats will now be that “Antifa is an idea, not an organization” because Biden said so on the debate stage. This is a modification of FBI director Chris Wray’s statement that Antifa is an ideology or movement, not an organization. It’s worth keeping Wray’s full comments before Congress in mind:

We look at Antifa as more of an ideology or a movement than an organization. To be clear, we do have quite a number of properly predicated domestic terrorism investigations into violent anarchist extremists, any number of whom self-identify with the Antifa movement. And that’s part of this broader group of domestic violent extremists that I’m talking about, but it’s just one part of it. We also have the racially motivated violence extremists, the militia types, and others.

Later in that same hearing, Wray elaborated:

Antifa is a real thing. It’s not a group or an organization, it’s a movement or an ideology, maybe one way of thinking of it, and we have quite a number and I’ve said this consistently since my first time appearing before this committee, we have any number of properly predicated investigations into what we would describe as violent anarchist extremists. Some of those individuals self-identify with Antifa.

…we have seen individuals, I think I’ve mentioned this in response to one of the earlier questions, identified with the Antifa movement, coalescing regionally into what you might describe as small groups, or nodes. And we are actively investigating the potential violence from those regional nodes, if you will.

Later, in response to questions from Representative Dan Crenshaw, Wray elaborated even further:

I want to be clear that by describing it as an ideology or movement, I by no means mean to minimize the seriousness of the violence and criminality that is going on across the country. Some of which is attributable to that people inspired by, or who self-identify with that ideology and movement. We’re focused on that violence on that criminality. And some of it is extremely serious.

So, no, there is no headquarters campus of the National Association of Antifa and they don’t have a set membership list, ranks, branch offices, website, human-resources department, and 401(k) plan. (But Antifa does have a handbook.) In the description of the FBI director, it is a “movement” that operates in “small groups or nodes” and is involved in “extremely serious” criminal violence.

Describing Antifa as merely an “idea,” as Joe Biden does, seems pretty antiseptic, perhaps to the point of obfuscation or downplaying the danger Antifa presents.

For what it is worth, this is the entirety of the discussion of Antifa at the debate:

TRUMP: Proud Boys, stand back and stand by. But I’ll tell you what, somebody’s got to do something about Antifa and the left because this is not a right-wing problem this is a left-wing–

BIDEN: His own FBI Director said unlike white supremacist, Antifa is an idea. not an organization-

TRUMP: Oh, you’ve got to be kidding me!

BIDEN: … not a militia. That’s what his FBI Director said!

TRUMP: Well, then you know what, he’s wrong.

WALLACE: We’re done, sir. Moving onto the next… [crosstalk 00:42:46]

TRUMP: Antifa is bad.

BIDEN: Everybody in your administration tells you the true, it’s a bad idea. You have no idea about anything.

TRUMP: You know what, Antifa is a dangerous radical group.

WALLACE: All right, gentlemen, we’re now moving onto the Trump-Biden record.

TRUMP: And you ought to be careful of them, they’ll overthrow you.

The night was verbal chaos, but at no point did Biden get around to criticizing Antifa; his lone comment was to insist it was merely an “idea.” Trump deserves criticism for his vague “stand back and stand by,” which doesn’t sound much like a denunciation or warning to the Proud Boys. But throughout the summer Biden denounced generic “violence,” not Antifa by name. The closest Biden has come to denouncing Antifa is once saying, “Arsonists and anarchists should be prosecuted.” Biden’s hesitation to discuss and denounce Antifa with any specificity is not nearly as different from Trump as Biden’s fans want to believe.

Elections

‘Don’t Interrup—’

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This week on The Editors, Rich, Charlie, and Jim discuss the disaster that was Tuesday’s presidential debate. Listen below or subscribe to this podcast on iTunes, Stitcher, TuneIn, Google Podcasts, or Spotify.

Politics & Policy

Nick Kristof’s Times Colleague Kindly Helps Him ‘Find Trump’s Anarchists in Portland’

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A riot against racial inequality and police violence in Portland, Oregon, August 2, 2020. (Caitlin Ochs/Reuters)

In July, the New York Times’ Nicholas Kristof appealed to his readers. “Help Me Find Trump’s ‘Anarchists’ in Portland,” he asked. Then he offered up 900 or so sarcastic words, in this vein:

 I’ve been on the front lines of the protests here, searching for the “radical-left anarchists” who President Trump says are on Portland streets each evening.

I thought I’d found one: a man who for weeks leapt into the fray and has been shot four times with impact munitions yet keeps coming back. I figured he must be a crazed anarchist.

But no, he turned out to be Dr. Bryan Wolf, a radiologist who wears his white doctor’s jacket and carries a sign with a red cross and the words “humanitarian aid.” He pleads with federal forces not to shoot or gas protesters.

. . .

Maybe the rioting anarchists were in front of the crowd, where there are discussions about Black Lives Matter? I found musicians and activists and technicians, who were projecting a huge sign on the wall of a nearby building — “Fed Goons Out of PDX” — that seemed a bit geeky for anarchists.

Oh, wait, there was a man using angry language about the federal “occupation” and calling it “abhorrent.” Lots of protesters don’t seem to like him, so could he be a crazed anarchist rioter?

Oops, no, that’s just Portland Mayor Ted Wheeler, sputtering after being tear-gassed by the feds.

Alas, Kristof found nothing in Portland besides the people who confirmed his thesis. And yet it turns out that he didn’t need to recruit the Times’ readership to his side, so much as to take a casual stroll across the office to talk to his colleagues, one of whom, Farah Stockman, has written a fascinating piece titled “The Truth About Today’s Anarchists.” As Stockman notes, these people exist, they are not pro-Trump provocateurs, and they are not incidental to the violence.

Stockman’s essay opens with an account of a furloughed Californian photographer named Jeremy Lee Quinn, who was shocked to discover that the looting he was seeing through his lens was not, in fact, spontaneous:

Mr. Quinn began studying footage of looting from around the country and saw the same black outfits and, in some cases, the same masks. He decided to go to a protest dressed like that himself, to figure out what was really going on. He expected to find white supremacists who wanted to help re-elect President Trump by stoking fear of Black people. What he discovered instead were true believers in “insurrectionary anarchism.”

To better understand them, Mr. Quinn, a 40-something theater student who worked at Univision until the pandemic, has spent the past four months marching with “black bloc” anarchists in half a dozen cities across the country, chronicling the experience on his website, Public Report.

Or, to put it in terms that Nick Kristof might understand: Mr. Quinn found “Trump’s ‘Anarchists’ in Portland.” Furthermore, Mr. Quinn discovered that — amusingly enough, given their moniker — those anarchists were organized:

Mr. Quinn discovered a thorny truth about the mayhem that unfolded in the wake of the police killing of George Floyd, an unarmed Black man in Minneapolis. It wasn’t mayhem at all.

While talking heads on television routinely described it as a spontaneous eruption of anger at racial injustice, it was strategically planned, facilitated and advertised on social media by anarchists who believed that their actions advanced the cause of racial justice. In some cities, they were a fringe element, quickly expelled by peaceful organizers. But in Washington, Portland and Seattle they have attracted a “cultlike energy,” Mr. Quinn told me.

That’s the same Portland about which Nick Kristof wrote in July.

Okay, Kristof might say, But what if Mr. Quinn is a right-wing Trump fan who ju—:

He says he respects the idealistic goal of a hierarchy-free society that anarchists embrace, but grew increasingly uncomfortable with the tactics used by some anarchists, which he feared would set off a backlash that could help get President Trump re-elected.

Fine. But we shouldn’t just take Mr. Quinn’s word for it, given tha—:

Don’t take just Mr. Quinn’s word for it. Take the word of the anarchists themselves, who lay out the strategy in Crimethinc, an anarchist publication: Black-clad figures break windows, set fires, vandalize police cars, then melt back into the crowd of peaceful protesters. When the police respond by brutalizing innocent demonstrators with tear gas, rubber bullets and rough arrests, the public’s disdain for law enforcement grows. It’s Asymmetric Warfare 101.

All right, but maybe they’re just claim­i—:

If that is not enough to convince you that there’s a method to the madness, check out the new report by Rutgers researchers that documents the “systematic, online mobilization of violence that was planned, coordinated (in real time) and celebrated by explicitly violent anarcho-socialist networks that rode on the coattails of peaceful protest,” according to its co-author Pamela Paresky. She said some anarchist social media accounts had grown 300-fold since May, to hundreds of thousands of followers.

Okay, but surely their hearts are in the right pla—:

They are experts at unraveling an old order but considerably less skilled at building a new one. That’s why, even after more than 100 days of protest in Portland, activists do not agree on a set of common policy goals.

Even some anarchists admit as much.

“We are not sure if the socialist, communist, democratic or even anarchist utopia is possible,” a voice on “The Ex-Worker” podcast intones. “Rather, some insurrectionary anarchists believe that the meaning of being an anarchist lies in the struggle itself and what that struggle reveals.”

In other words, it’s not really about George Floyd or Black lives, but insurrection for insurrection’s sake.

It’s nice when people find what they were looking for — even when it has been abundantly obvious to everyone with eyes for three or four months straight.

Elections

Is All Bad News Fake?

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Jim Geraghty reviews all the ugly poll numbers and conventional markers of electoral analysis and then asks:

But if Trump doesn’t win reelection . . . and the numbers of those late polls aren’t too far from the final results . . . can we put aside this notion that every bit of bad news for your preferred candidate is nefarious misinformation and subterfuge? Can we do away with this belief that any polling that show numbers that are bad for a GOP candidate represent a nefarious effort to depress Republicans? Can we accept that not all bad news is fake news?

I bet that for the “we” he has in mind, the answer is an emphatic “no.”

Culture

Car Seats, Baby Bust

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Nicholas Christakis highlighted a new research paper claiming to show that car-seat laws have a negative effect on fertility. The more stringent safety regulations, the requirement to seat older and older — and heavier and heavier — children in them, and the inability to fit more than two in an average car’s back seat all work together to prevent 8,000 births a year.

Lyman Stone points out that car seats save 57 child lives a year.

Jonathan V. Last noted this problem years ago in his excellent book What to Expect When No One’s Expecting. Car seats may be pro-child, he observed, but they are strangely anti-family. Even families that have the means to upgrade find they hit upper limits quickly.

Even a 2015 Toyota Sienna, which nominally seats seven, has trouble fitting more than three car seats in it.  You can probably get up to five children under age nine in one if you’re just using a few booster seats, but, it is not fun. Higher-fertility Latter-day Saints have a term of art for the largest SUVs and vans: Mormon Assault Vehicles. (Google it, trust me.)

One of my friends, a father of five, found that he had more luck buying a discontinued VW Eurovan, whose rear-facing second row made access to the third row much easier.

Science & Tech

Social Media Is More Insufferable Than Usual

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I don’t know about you, but the little redoubts of the Internet where I go for a break from political wrangling are useless now for that purpose.

I really noticed the way social media intensified election season back in 2012. The mutual umbrage-taking, the late-night ranting of friends and family. Obviously that was barely preparation for 2016. But 2020 seems worse by a mile.

Political brain worms have already colonized sports to an astonishing degree. But now all the little digital communities I go to for my own breaks, the ones dedicated to mechanical watches and language learning, for instance, are full of progressives beating their chests about the depravity of Trump (Okay! Uncle!). These are followed by “stick to watches” and “stick to umlaut advice” taunts from you know who. And then this inspires insufferable invitations to unfollow.

I don’t think this trend goes away even if Trump does. I think the last redoubt I’ve found is the lawn-care community, which so far hasn’t found a way to work political jeremiads in between advice about whether to use a chewing fescue or tall fescue grass.

 

World

Another Call for United Front Sanctions

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Chinese President Xi Jinping walks to the lectern to deliver his speech during the opening session of the 19th National Congress of the Communist Party of China at the Great Hall of the People in Beijing, China, October 18, 2017. (China Daily via Reuters)

The China Task Force, a panel comprising 15 House Republicans, issued its long-awaited report on competing with the Chinese Communist Party today. It’s a whopping document, with over 400 policy recommendations, each with significant implications for the strategic contest with Beijing. This makes homing in on the most important suggestions very difficult.

To set priorities based on the report, it’s important to consider where we’re behind. The answer is, unfortunately, in a lot of places. In an interview with my colleague Tobias Hoonhout, CTF chairman Michael McCaul highlighted America’s dependence on medical supply chains: “It just shows you how vulnerable we are, and we’re just playing with fire, because they can turn the switch off.”

Another area in which the United States is behind, despite the best efforts of some Trump administration officials to catch up with Beijing, is “ideological competition,” one of the report’s core pillars.

The document notes two important speeches by Trump administration officials in recent months: Robert O’Brien’s address on the CCP’s Marxist-Leninism, and his deputy Matthew Pottinger’s May 4 address extolling China’s historical commitment to democracy. Yet despite these clear-eyed assessments of the nature of Chinese authoritarianism and the need for a values-based U.S. response, that conversation can at times be drowned out by other (important) parts of the discussion.

President Trump’s speech at the U.N. General Assembly last week is a case in point. He made an apt, though familiar, argument about the CCP’s virus coverup but missed an opportunity to call the party’s global influence campaigns and human-rights abuses a threat to all mankind before a truly international audience. Still, as O’Brien and Pottinger have shown, the administration has made it a point to emphasize this and highlight the ideological nature of this competition.

The China Task Force builds on these efforts with some key recommendations. It makes a critical argument in connecting the ideological dimension with other facets of the CCP’s conduct around the world:

The U.S. and the free world must understand and accept the reality of the CCP’s loyalty to communist ideology, because it reveals that the CCP can never be a trustworthy partner, a “responsible stakeholder,” or even a ‘competitor’ that plays by the same rules. The CCP’s obsession with absolute control means that free people and free societies will always be the enemy of the Party. At home or abroad, the CCP does not allow its power to be constrained by laws, rules, or norms, instead using force and coercion. The CCP’s communist ideology, and the totalitarianism that results, causes the CCP behaviors that are most threatening to the American way of life — humanitarian atrocities, the erosion of democracy, territorial aggression, and theft of American intellectual property (IP).

In this light, it’s worth looking at the task force’s recommendations on the United Front Work Department — a party arm tasked with influence operations that target Chinese overseas, ethnic and religious minorities, and foreign governments. As the report notes, this nebulous vehicle of party influence is one that, while already important, has been granted even more significance by General Secretary Xi in recent years. It’s the link between the CCP’s severe human-rights abuses within China, and its cooptation of foreign entities and individuals abroad.

The China Task Force calls on Congress to pass new sanctions authorities that target UFWD-affiliated individuals, in addition to other measures that the administration could enact to help foreign governments identify related malign activity.

Despite some other recent work on this — namely a study by the Australian Strategic Policy Institute and a Republican Study Committee report — there’s still an awareness gap when it comes to the united front. A lot of united front work outside of China takes place in plain sight and is not strictly illegal (though it is always detrimental to the people targeted). Nonetheless, in the past couple of months alone, it seems as though awareness of Chinese foreign influence operations has grown on Capitol Hill — in fact, earlier this month, a group of House Republicans introduced a united front sanctions bill.

As the sheer breadth of the China Task Force suggests, this is only one of the many things that must be done. But emphasizing that we’re in a global ideological competition — and sanctioning one of the CCP’s key means of waging it — is a good place to start. It would be a promising development if this nebulous network became the face of Chinese authoritarianism around the world.

Elections

Trump: The ‘Proud Boys’ Should ‘Stand Down’

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In response to Tim Scott: Trump Should Correct ‘Proud Boys’ Comment 

At the White House on Wednesday, President Trump was asked by reporters about his debate comment that the extremist group known as the Proud Boys should “stand back and stand by.”

Trump said on Wednesday he doesn’t know who the Proud Boys are, but they need to “stand down, let law enforcement do their work.”

“So, Mr. President, did you misspeak when you said ‘stand by’?” one reporter asked Trump on Wednesday.

“Just ‘stand by.’ Look, law enforcement will do their work,” Trump replied. “They’re going to stand down. They have to stand down. Everybody — they have to stand — whatever group you’re talking about, let law enforcement do the work.”

Asked about denouncing white supremacists, Trump said: “I’ve always denounced any form any form of any of that, you have to denounce.”

Here’s the video:

And here’s the transcript the White House press office sent out of today’s exchange:

Q  Mr. President, can you explain what you meant last night when you said that the Proud Boys should “stand back and stand by”?

THE PRESIDENT: I don’t know who the Proud Boys are. I mean, you’ll have to give me a definition, because I really don’t know who they are. I can only say they have to stand down, let law enforcement do their work. Law enforcement will do the work more and more. As people see how bad this radical, liberal, Democrat movement is and how weak — the law enforcement is going to come back stronger and stronger.

But again, I don’t know who Proud Boys are. But whoever they are, they have to stand down. Let law enforcement do their work.

Q   So, Mr. President, did you misspeak when you said “stand by”? That’s my — my first question. When you said —

THE PRESIDENT: Just “stand by.” Look, law enforcement will do their work. They’re going to stand down. They have to stand down. Everybody — they have to stand — whatever group you’re talking about, let law enforcement do the work.

Now, Antifa is a real problem, because the problem is on the left and Biden refuses to talk about it. He refuses to issue the words “law and order.” And you saw that last night when he choked up. He can’t say the words because he’ll lose the rest of the left. So he’s got to condemn Antifa. Antifa is a very bad group.

Q  So, Mr. President, let me follow up: White supremacists, they clearly love you and support you. Do you welcome that?

THE PRESIDENT: I want law and order to be a very important part — it’s a very important part of my campaign. And when I say that, what I’m talking about is law enforcement has to — the police have to take care. And they should stop defunding the police like they’ve done in New York —

Q   But I’m talking about white supremacists, sir.

THE PRESIDENT: — like they’ve done in New York. I just told you.

Q  But do you denounce them? Do you denounce white supr- —

THE PRESIDENT: I’ve always denounced any form —

Q  Of white supremacy?

THE PRESIDENT: Any form — any form of any of that, you have to denounce.

But I also — and Joe Biden has to say something about Antifa. It’s not a philosophy. These are people that hit people over the head with baseball bats. He’s got to come out and he’s got to be strong, and he’s got to condemn Antifa. And it’s very important that he does that.

Law & the Courts

Barrett, in 2006, Supported the Right to Life

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In 2006, long before she was a judge, Amy Barrett agreed to let her name appear with many of her neighbors in a newspaper insert under the statement, “We, the following citizens of Michiana, oppose abortion on demand and support the right to life from fertilization to natural death.” The insert was placed by St. Joseph County Right to Life. It appeared next to anti-Roe v. Wade commentary from the organization, but signatories were asked only to approve the statement.

Barrett’s signature is the most direct confirmation we have received that she believes there should be limits on abortion, but it is not a surprise: We already knew that she had been part of Notre Dame’s “Faculty for Life,” and that she is a Catholic who seeks to adhere to Church teaching. She has not, however, stated a view on whether the Supreme Court should alter its jurisprudence to allow legislatures to protect the right to life, and if so how.

Barrett’s opponents are sure to point to the statement as evidence that she would overrule Roe v. Wade and related cases and should therefore be denied confirmation. Presumably, she will take the same tack as most Supreme Court nominees and refuse to say how she would rule in matters that may come before her if she is confirmed.

Update: I have a follow-up post with additional reporting.

Elections

The Mirror Image

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I must confess to being confused by this analysis from my friend S. E. Cupp:

“You would have lost far more people.”

That’s what President Trump said to Joe Biden, as the vice president tried to paint the tragic picture of a country that has lost more than 205,000 Americans to Covid-19.

“How many of you are in a situation where,” Biden asked, “you lost your mom or dad and you couldn’t even speak to them, you had to have a nurse holding the phone up so you could say goodbye…?”

To which Trump said — I’ll repeat it — “You would have lost far more people.”

In a night of damning lines, to me, it was one of the worst of the night. And it made me sick to my stomach.

I loathed last night’s debate and I abhorred Trump’s conduct throughout. But, substantively, it is unclear to me why it is acceptable for Joe Biden to suggest that the death count is Trump’s fault, and that had he, Joe Biden, been president, it would have been lower, but outré for Donald Trump to suggest that the death count is not his fault, and that had Joe Biden been president it would have been higher (because Biden wouldn’t have shut down most travel from China in January). What am I missing? The details are different, but they’re exactly the same argument.

Politics & Policy

Democrats Fear Kavanaugh 2.0 Brawl Could Hurt Them in November

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The Hill’s Alexander Bolton reports

Senate Democrats say they want to avoid a replay of the bitter fighting that characterized Supreme Court Justice Brett Kavanaugh’s 2018 Senate confirmation hearings, which centrist former  Sens. Claire McCaskill (D-Mo.) and Joe Donnelly (D-Ind.) thought cost them their reelection bids that year. […]

“I’m sick and tired of losing,” said one Democratic senator. “We had a Kavanaugh 1.0, which has informed people’s approach this time.”

“We’re not going to go down that road again. People know what happened to Joe Donnelly, they know what happened to Claire McCaskill and they know what happened to [former Sen.] Heidi Heitkamp,” the senator said, referring to the North Dakota Democrat who lost her reelection bid weeks after Kavanaugh’s confirmation vote.

You can add in Florida, where Republican Rick Scott beat incumbent Democrat Bill Nelson by 10,000 votes out of eight million ballots cast, as another Senate seat likely lost because of unfair attacks on Kavanaugh by Democratic senators and the media.

Republican senators Lisa Murkowski and Susan Collins now oppose a confirmation vote before the 2020 election, so those 2018 Senate gains — in which the GOP went from a 51–49 majority to a 53–47 majority — are the only reason Republicans now have the votes to move toward a vote on Amy Coney Barrett.

Law & the Courts

Obamacare and the Court

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Judge Amy Coney Barrett meets with Senator Shelley Moore Capito (R., W. Va.) on Capitol Hill in Washington, D.C., September 30, 2020. (Sarah Silbiger/Reuters)

It wouldn’t have been easy to learn much of any substance from the carnival of splenetic elder-abuse that passed for a debate on Tuesday night. But one thing I did learn is that, at least for now, the Democrats’ arsenal of arguments against Amy Coney Barrett’s confirmation is remarkably bare.

Asked to opine on Judge Barrett in particular, Joe Biden pointed to Obamacare, saying:

Now, what’s at stake here is the President’s made it clear, he wants to get rid of the Affordable Care Act. He’s been running on that, he ran on that and he’s been governing on that. He’s in the Supreme Court right now trying to get rid of the Affordable Care Act, which will strip 20 million people from having health insurance now, if it goes into court.

Biden was referring to a case that now carries the evocative name California v. Texas (a name that could describe broad swathes of our politics), in which the Supreme Court will hear oral arguments November 10.

The case involves the constitutionality of Obamacare’s individual mandate. In 2012, a peculiar Supreme Court majority led by Chief Justice Roberts decided that, although such a mandate was not constitutionally authorized, it could be acceptable if it was understood simply as a tax on people without health insurance. In 2017, however, the Congress zeroed out the mandate — leaving it on the books but setting the penalty for lacking insurance at zero dollars, and so effectively ending it.

This change has had remarkably little effect on the operation of the rest of Obamacare. The individual mandate, which the law’s champions (and critics) considered essential to the scheme and for which Democrats expended significant political capital, appears not to have had a major effect, and zeroing it out therefore didn’t have much effect either. (As for how the rest of the system is doing, this overview from Bob Laszewski about a year ago still strikes me as basically right.)

But because the Court allowed the mandate (and perhaps the entire law) to survive only by treating it as a tax, a group of 18 state governments led by Texas now argue that, having been set at zero, the mandate penalty is no longer a tax, and therefore the mandate is no longer constitutional. They further argue that the mandate can’t be severed from the larger law, and therefore that the entirety of Obamacare has to be thrown out. The Trump administration has (more or less) sided with these states.

A federal district court ruled for those states in 2018, and in December of last year the Court of Appeals for the Fifth Circuit affirmed the ruling that the individual mandate is no longer constitutional but remanded to the lower court the question of whether the mandate can be severed from the rest of the law. And the Supreme Court has now taken the case.

If the Supreme Court agrees with the trial-court judge on both the unconstitutionality of the mandate and its unseverablity, then all of Obamacare would be thrown out. The Democrats argue that most of the Republican-appointed justices would rule this way, and that a Justice Barrett would too. And this now appears to be their main and most prominent argument against her confirmation.

It’s a very weak argument. As Ramesh Ponnuru noted this week, “It’s not just that there’s no basis to think that Barrett favors this legal challenge. There’s no evidence that any of the five Republican appointees currently on the Supreme Court do. A unanimous defeat remains a possibility.”

The main reason for that is the simple weakness of the states’ argument. The debate about the constitutionality of the mandate once the penalty is zeroed out is essentially meaningless as a practical matter, since the mandate is already inoperative. The key question is severability. And Congress has answered that question by effectively eliminating the mandate while leaving the rest of the law in place, thus severing it. The notion that the now-inoperative mandate is actually necessary for the functioning of the rest of the system created by the statute — a notion that rests on applying the intent of the 2010 Congress over that of the 2017 Congress when considering the situation created by the 2017 Congress’s act of legislation — is just simply ludicrous.

It is also worth seeing that the Supreme Court justices considering this case will be in a different situation than the lower-court judges who did so, because they will not be bound in the same way by the Chief Justice’s (highly dubious if not indefensible) reasoning in the 2012 Obamacare case. That decision binds lower-court judges, and so they have to work within its bounds, which can naturally lead to some very bizarre conclusions. But the Venn diagram of Supreme Court justices who approved of that decision and could conceivably rule that Obamacare should now be thrown out basically includes just John Roberts, and even he is not all that likely to apply his own past decision in this loopy way given Congress’s actions in the interim. Some of the Republican-appointed judges now on the Court did argue that the mandate was unconstitutional, but it’s hard to imagine them now accepting the notion that it remains unseverable after Congress has severed it.

What is more, if it really comes to that and the Court seems like it might rule this way, Congress could easily just make this case moot with a one-sentence bill that strikes the individual mandate from the law (at 26 USC. 5000A). The Court won’t rule until sometime next spring, so if the Democrats win the presidency and a Senate majority, they could easily do that, and might well get some Republicans to join them. If Republicans retain control, they could advance a bill that does that while also enacting into law the regulatory changes that the Trump administration has made to the implementation of Obamacare — and so essentially codifying the status quo. Such a bill could well appeal to enough Democrats to pass.

They could do that now. But neither party really wants to. The case serves them as a storyline. Republicans can keep talking about implausible scenarios in the wake of Obamacare disappearing and Democrats can keep talking about implausibly astronomical numbers of newly uninsured if Republicans get their Court nominee confirmed. Neither scenario is grounded in reality. The Court is exceedingly unlikely to rule for the states; Congress can easily render the case moot if it wants to; and the whole thing is just so much noise.

But that this is where the Democrats are directing their noise in the Barrett confirmation fight so far does suggest they have remarkably little to work with.

Democrats
Biden and Senate Democrats Will Gladly Let Voters Know Their Position on Court-Packing after the Election

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Democratic presidential candidate Joe Biden makes remarks before boarding an Amtrak train in Cleveland, Ohio, September 30, 2020. (Mike Segar/Reuters)

At Tuesday’s presidential debate, Joe Biden was asked yet again about whether or not he would support passing a law increasing the number of justices on the Supreme Court in 2021.

Yet again, Biden dodged the question.

From the debate transcript (which doesn’t perfectly capture all the crosstalk):

CHRIS WALLACE: Mr. Vice President, if Senate Republicans, we were talking originally about the Supreme Court here, if Senate Republicans go ahead and confirm Justice Barrett there has been talk about ending the filibuster or even packing the court, adding to the nine justices there. You call this a distraction by the President. But, in fact, it wasn’t brought up by the President. It was brought up by some of your Democratic colleagues in the Congress. So my question to you is, you have refused in the past to talk about it, are you willing to tell the American tonight whether or not you will support either ending the filibuster or packing the court?

JOE BIDEN: Whatever position I take on that, that’ll become the issue. The issue is the American people should speak. You should go out and vote. You’re voting now. Vote and let your Senators know strongly how you feel.

DONALD TRUMP: Are you going to pack the court?

JOE BIDEN: Vote now.

DONALD TRUMP: Are you going to pack the court?

JOE BIDEN: Make sure you, in fact, let people know, your Senators.

DONALD TRUMP: He doesn’t want to answer the question.

JOE BIDEN: I’m not going to answer the question.

DONALD TRUMP: Why wouldn’t you answer that question? You want to put a lot of new Supreme Court Justices. Radical left.

JOE BIDEN: Will you shut up, man?

DONALD TRUMP: Listen, who is on your list, Joe? Who’s on your list?

CHRIS WALLACE: Gentlemen, I think we’ve ended this-

JOE BIDEN: This is so un-Presidential.

DONALD TRUMP: He’s going to pack the court. He is not going to give a list.

CHRIS WALLACE: We have ended the segment. We’re going to move on to the second segment.

JOE BIDEN: That was really a productive segment, wasn’t it? Keep yapping, man.

Biden suggests voters are supposed to express their preferences on the issue at the ballot box, but how are voters supposed to do that if Biden and Senate Democrats won’t reveal their stance on court-packing until after the election? 

Democratic senators have made it clear they don’t want to reveal their intentions on court-packing until after the election. “What we need to do before we talk about what happens in the next session of Congress is for Democrats to win the presidency and a majority in the Senate,” Connecticut senator Richard Blumenthal told National Review in the Capitol last week when asked about court-packing.

Before voters go to the polls, should they get to know whether court-packing is likely or even on the table? “There are so many reasons to vote for Democrats now — that we need to focus on the pandemic,” replied Blumenthal, a member of the Senate Judiciary Committee. “You know, we just passed 200,000 deaths. The president’s failure to deal with the pandemic and the public-health and economic crises and his cruel and reckless indifference [are] costing lives.”

“I think we’ve got to wait to get through the election,” Pennsylvania Democratic senator Bob Casey said when asked about court-packing. “The key thing right now is people have to understand what’s at stake, especially on ACA and preexisting conditions.”

“No thoughts at the moment,” New Mexico Democratic senator Martin Heinrich replied when asked about adding justices to the Court. “We have a job to do before we have that conversation.”

If Donald Trump and Senate Republicans were being cagey about whether they would increase the size of the Supreme Court from nine justices to twelve justices in 2021, what would the media say?

It would be a five-alarm fire. It’s impossible to believe the press wouldn’t hold their feet to the fire until they gave the American people an answer about their intentions.

Elections

A Lot of Things Are ‘Possible’

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President Trump participates first presidential debate in Cleveland, Ohio, September 29, 2020. (Morry Gash/Reuters)

It’s possible that the overwhelming majority of the polls are wrong, and that Donald Trump is not trailing Joe Biden by about six points nationally, by about five or six points in Pennsylvania, by about five points in Michigan, by five points in Wisconsin, by about two points in Arizona. It’s possible Trump will win states like Florida, Ohio, Iowa, and North Carolina by comfortable or wide margins, instead of the close numbers in most of the polls in those states lately. It’s possible that Minnesota is not out of reach for Trump, and that Biden isn’t on course to win by about nine points. Maybe that national lead of Biden’s is an illusion created by the Democrat having a particularly wide margin in safe blue states such as New York, New Jersey, and California.

Maybe the fact that Trump has had a lousy job-approval rating since Day One doesn’t really matter. Maybe the 2018 blue wave in the House of Representatives just reflected the weaknesses of GOP House candidates and had nothing to do with Trump. Maybe the gloomy numbers for GOP Senate candidates are similarly off, and represent a systemic problem with getting Republican-leaning respondents to answer questions from a pollster.

Maybe Trump will pull it off. There are some indicators that he’s doing better among Latinos than he did in 2016. That Telemundo poll showed Latinos thought Trump won Tuesday night’s debate — by a wide margin. There’s some evidence Trump might be doing a little better among African Americans than he did in 2016. Maybe the claim that Trump has lost ground among seniors is illusory. Maybe there hasn’t been a giant turn away from the Republican Party in the suburbs across the country.

It’s possible that Trump’s former campaign manager, Brad Parscale, really did build “a juggernaut campaign (Death Star)” that “is firing on all cylinders.” Maybe it doesn’t matter that the Trump campaign stopped running television ads for stretches in key media markets in September.

It’s possible that Joe Biden’s inability to hold rallies and do traditional campaigning really is going to depress Democratic turnout. Maybe the pandemic really will interfere with unions’ ability to get their members out in support of Biden. Maybe the sense that the Democratic Party’s effort this year is driven more by fervent opposition to Trump instead of enthusiasm for Biden means the Democrats won’t hit their turnout targets.

We’re going to see. And if Trump wins reelection, he will have demonstrated that almost all of the traditional measures of how a campaign is performing are still broken and still can’t account for his supporters. Maybe we need to pay more attention to boat parades as a measurement of grassroots enthusiasm.

But if Trump doesn’t win reelection . . . and the numbers of those late polls aren’t too far from the final results . . . can we put aside this notion that every bit of bad news for your preferred candidate is nefarious misinformation and subterfuge? Can we do away with this belief that any polling that show numbers that are bad for a GOP candidate represent a nefarious effort to depress Republicans? Can we accept that not all bad news is fake news?

Religion

Does Pompeo Care More about Chinese Catholics than the Pope Does?

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People wear masks at the Nanjing Pedestrian Road, a main shopping area,, in Shanghai, China, January 24, 2020. (Aly Song/Reuters)

China is a terrible oppressor of religious liberty and persecutor of faithful people. Think organ harvesting of Falun Gong. The stomping of Tibetan Buddhism. The genocide of Uyghurs and their impressment into slave labor. Christians subjected to the country’s under-construction, pernicious social-credit system. The list goes on and on.

Chinese Catholics have not been spared. But some worry that Pope Francis has not taken a hard enough line opposing the persecution of the authentic Catholic Church in China. Unfortunately, Pope Francis just gave religious-freedom advocates more reason for concern.

A little background: The Vatican and China are negotiating an extension of a two-year agreement — terms undisclosed — designed to protect China’s Catholics. Writing in First Things, Secretary of State Mike Pompeo worried that the agreement had not achieved its purpose, citing Fr. Paul Zhang Guanghun, a priest who was beaten and “disappeared,” among many other examples. (Read the whole thing. It is very illuminating.)

Pompeo’s advocacy appears not to have been appreciated at the Holy See. He was supposed to meet with Francis this week when at the Vatican to deliver a strong speech on threats to religious freedom generally in China and the threat to Chinese Catholics specifically. At the last minute, that meeting was canceled — ostensibly because the pope didn’t want to appear to be taking sides in the American election.

But some suspect that the real reason was that the pope is reluctant to take the hard line Pompeo advocates — a fear amplified by the pope’s concurrent refusal to meet with the Cardinal Emeritus of Hong Kong, Cardinal Joseph Zen, also in Rome. It’s all very concerning.

Pompeo did deliver his speech. Here are few excerpts from, “Moral Witness and Religious Freedom”:

The Chinese Communist Party has battered every religious community in China: Protestant house churches, Tibetan Buddhists, Falun Gong devotees, and more. Nor, of course, have Catholics been spared this wave of repression:

Catholic churches and shrines have been desecrated and destroyed. Catholic bishops like Augustine Cui Tai have been imprisoned, as have priests in Italy. And Catholic lay leaders in the human rights movement, not least in Hong Kong, have been arrested.

Authorities order residents to replace pictures of Jesus with those of Chairman Mao and those of General Secretary Xi Jinping.

All of these believers are the heirs of those Pope John Paul celebrated in his speech to the UN, those who had “taken the risk of freedom, asking to be given a place in social, political, and economic life which is commensurate with their dignity as free human beings.”

We must support those demanding freedoms in our time, like Father Lichtenberg did.

Pompeo ended with an exhortation:

It’s now some twenty years ago this very week that Pope John Paul II canonized 87 Chinese believers and 33 European missionaries killed in China before the current Communist regime took power.

At the time, he said the following:  He said that “the Church intends merely to recognize that those martyrs are an example of courage and consistency to us all, and that they honor the noble Chinese people.”

Brave men and women all over the world, taking that “risk of freedom,” continue to fight for respect for their right to worship, because their conscience demands it.

Pope John Paul II bore witness to his flock’s suffering, and he challenged tyranny.  By doing so, he demonstrated how the Holy See can move our world in a more humane direction, like almost no other institution.

May the Church, and all those who know that we are ultimately accountable to God, be so bold in our time.  May we all be so bold in our time.

And to that, may we all say simply, “Amen.”

Politics & Policy

Judge Barrett and Health Care, Ctd.

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My column yesterday on the Obamacare lawsuit before the Supreme Court generated a number of objections. To recap, my main points were that the case is very unlikely to lead to the invalidation of Obamacare, and claims that Judge Barrett has already signaled that she would vote in favor of the suit are mistaken.

Several Republican-appointed judges have taken the case seriously; who’s to say the ones on the Supreme Court won’t? Only one federal judge has ruled that the law should be struck down on the basis of the argument in the lawsuit. On appeal, two judges were persuaded that the individual mandate (or what’s left of it) is unconstitutional but were not persuaded by the district judge’s conclusion that the whole law therefore has to go, and thus ordered him to redo his analysis. The fact that the Supreme Court took the case, as both parties requested, does not indicate that any justice is leaning toward the district judge’s conclusion.

A lot of Republican attorneys general back the case; why wouldn’t Republican-appointed justices think similarly? AGs and judges have different interests and assess the merit of legal arguments in different ways. Four Democratic states sued the federal government for limiting the state-and-local tax deduction. It went nowhere in court.

Or, combining the last two objections, consider the Hosanna-Tabor case from 2012. Two federal-appeals courts concluded that the First Amendment did not protect a religious organization’s freedom to make employment decisions. The Obama administration, which was full of clever lawyers, agreed. The Supreme Court ruled otherwise, unanimously.

Republicans should be held accountable for pushing a lawsuit to get rid of Obamacare with no plan for dealing with the aftermath. I agree that Republicans are doing exactly that, and they’re wrong to do it. Criticize away. None of that nullifies my points: The lawsuit is unlikely to succeed, Barrett’s criticisms of past rulings do not imply she is likely to support this lawsuit, etc.

Law & the Courts

Parents Deserve to Know about Their Children’s Gender Confusion

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A basic principle of safeguarding is that “secrets” between children and non-related adults are red flags.

When the school district in Madison, Wis., instructed its employees to oversee the gender transition of children in their care, treating boys who identify as girls as girls and vice versa, without their parents’ knowledge or consent, this gave parents in the district cause for concern.

Fortunately, after legal intervention in February, a state court issued on Monday prohibited Madison Metropolitan School District from keeping parents out of the loop on all things gender. Roger Brooks, senior counsel for the Alliance Defending Freedom, who argued the case on behalf of the parents, said:

It should go without saying that school district staff should be honest with parents, especially when it comes to critical matters concerning their children, but we are pleased that the court has issued an order now requiring it. . . . As this case moves forward, we will continue to argue for our clients’ legitimate concern over the Madison Metropolitan School District’s policy of deceiving parents and excluding them from profound decisions involving the wellbeing of their own children.

Politics & Policy

Tim Scott: Trump Should Correct ‘Proud Boys’ Comment 

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Senator Tim Scott (R., S.C.) speaks about his new police reform bill during a news conference on Capitol Hill in Washington, D.C., June 17, 2020. (Yuri Gripas/Reuters)

At Tuesday’s presidential debate in Cleveland, moderator Chris Wallace asked President Trump if he was willing to “condemn white supremacists and militia groups and to say that they need to stand down.”

“Sure, I’m willing to do that,” Trump replied.

After Trump expressed a willingness to condemn those groups and tell them to stand down, Wallace asked Trump he’d “specifically” do that.

“I would say almost everything I see is from the left wing not from the right wing,” Trump replied.

“But what are you saying?” asked Wallace.

“I’m willing to do anything. I want to see peace,” Trump replied. 

After some more crosstalk, Trump said: “Give me a name, give me a name, go ahead who do you want me to condemn?” 

Joe Biden then mentioned the extremist group “Proud Boys.”

Trump then said: “Okay, Proud Boys stand back and stand by.”

To parse this comment, when Trump said they should “stand back,” he is basically using Wallace’s own words — “stand down.” That’s good.

The words “stand by,” of course, often mean something very different — “to be present” or “to remain apart or aloof” or “to be or to get ready to act.” Telling them to “stand by” was very bad.

Asked about Trump’s comments, South Carolina Republican senator Tim Scott said on Wednesday: “I think he misspoke. I think he should correct it. If he doesn’t correct it, I guess he didn’t misspeak.”

It’s also true that Biden said in the same exchange that “Antifa is an idea, not an organization.” The Democratic presidential candidate deserves to be held accountable for that, but it’s not an excuse for Trump telling an extremist group to “stand by” — words that can be quickly corrected if he wants. 

Trump “should have made it very clear that there is no room for either people on the far left or the far right when it comes to Antifa or these white supremacist groups. He should have been very clear,” South Dakota senator Mike Rounds tells reporters. “I was hoping for more clarity.”

Here’s the video and the transcript of the exchange: 

CHRIS WALLACE: You have repeatedly criticized the vice president for not specifically calling out Antifa and other left wing extremist groups. But are you willing tonight to condemn white supremacists and militia groups—

DONALD TRUMP: Sure—

CHRIS WALLACE: … and to say that they need to stand down and not add to the violence in a number of these cities as we saw in Kenosha and as we’ve seen in Portland?

DONALD TRUMP: Sure, I’m willing to do that.

CHRIS WALLACE: Are you prepared specifically to do it?

JOE BIDEN: Do it

DONALD TRUMP: I would say almost everything I see is from the left wing not from the right wing.

CHRIS WALLACE: But what are you saying?

DONALD TRUMP: I’m willing to do anything. I want to see peace.

CHRIS WALLACE: Well, then do it, sir.

JOE BIDEN: Say it, do it, say it.

DONALD TRUMP: You want to call them—what do you want to call them? Give me a name, give me a name, go ahead who do you want me to condemn?

CHRIS WALLACE: White supremacist and right-wing militia—

JOE BIDEN: Proud Boys—

DONALD TRUMP: Okay, Proud Boys stand back and stand by. But I’ll tell you what somebody’s 

got to do something about Antifa and the left because this is not a right wing problem this is a left wing.

JOE BIDEN: He’s own FBI Director said unlike white supremacist, Antifa is an idea not an organization—

DONALD TRUMP: Oh you got to be kidding me.

JOE BIDEN: … not a militia. That’s what his FBI Director said.

DONALD TRUMP: Well, then you know what, he’s wrong.

CHRIS WALLACE: We’re done, sir. Moving onto the next… [crosstalk]

DONALD TRUMP: Antifa is bad.

JOE BIDEN: Everybody in your administration tells you the true, it’s a bad idea. You have no idea about anything.

DONALD TRUMP: You know what, Antifa is a dangerous radical group.

Elections

On Last Night’s Debate

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President Donald Trump participates in the first 2020 presidential campaign debate with Democratic presidential nominee Joe Biden in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

The fact that I believe the debate was unwatchable last night does not mean I believe President Trump did not have some good moments. And the fact that I imagine it was a net-net win for Joe Biden does not mean he did not have some utterly awful moments. Yet the unwatchability of the debate — the cringe factor that I have to believe the vast, vast majority of Americans felt last evening — was primarily caused by President Trump’s incessant interrupting. I am happy to pile on Chris Wallace, and obviously Biden had moments of getting down in the dirt. But you are blinded by your red hat if you don’t believe the general chaos of the evening was the handiwork of POTUS.

What I do not mean by that is that President Trump was too feisty or too tough. This is actually where my biggest criticism would lie — he had multiple opportunities to be substantively tough, and neglected to do so. I wanted to come out of my seat to make his case for him as it pertained to much of Biden’s indefensible COVID accusations. POTUS stayed locked on his line about having shut down travel with China — accurate enough, but a totally incomplete summary of the administration’s COVID portfolio. The accusation is ridiculous on its face — that somehow with what was known in February, and with a grand total of one or two American infections at that time, they could have gotten away with shutting down the country earlier than they did — and it is among the most dishonest and absurd things the Biden camp is launching at Trump. But Trump has no answer for it, and in fact, he completely missed the biggest vulnerability in Biden’s entire assault last night: Biden all at once attacked Trump for the wealth disparity the virus has created, and attacked Trump for not keeping the nation locked down. There is nothing — nothing — that exacerbates wealth inequality more than shutting down the country from the activity that employs the vast majority of the bottom 10 percent of wage earners, while allowing the rich and comfortable to work their service jobs via Zoom from their beach houses. How the Left gets away with this absurdity is beyond me, but POTUS last night refused to make the argument, and on substance, it was the most frustrating omission for me.

Biden’s Antifa-denialism was frightening. And his moment of inconsistency on the Green New Deal was bizarre (“the Green New Deal will pay for itself, and, I am against the Green New Deal.”) Biden more or less avoided getting derailed, though, and while I would strongly recommend he abandon threats to shut down the country if he wants to win this election, I doubt any honest person’s major, primary takeaway from last night was something positive or negative about Biden.

No, everyone’s major takeaway was about Trump. As always. And while the reality of 2016 looms over all of us afraid to be wrong yet again in our predictive prowess, it feels like the wheels are falling off the bus. I strongly suspect there are very few people who went into the debate gung-ho for Trump who decided after his performance to not vote for him, but I am even more confident that the undecideds, or persuadables, or independent-moderates, or suburban moms, or whatever demographics out there are needed to give Trump a shot at winning this, were not remotely moved towards Team Trump last night.

The viewership of the next debate will be much lower. If the moderators don’t have a mute button for the speakers in debate No. 2, the viewership for debate No. 3 might be a record low. I do not say this because I disagree with President Trump on law and order, on re-opening the economy, on the credentials of Judge Amy Coney Barrett, or on the efficacy of corporate tax cuts. I agree with him on those four or five things. My problem with last night is that I could barely tell that he agrees with himself on those key issues. His demeanor undermines his own case.

Politics & Policy

Biden: ‘I’m Not Opposed’ to Amy Coney Barrett; She’s a ‘Very Fine Person’

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Democratic presidential nominee Joe Biden participates in the first 2020 presidential campaign debate with President Donald Trump in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

When news broke that Justice Ruth Bader Ginsburg passed away on September 18, there were many predictions that an effort to fill the Supreme Court vacancy with an originalist nominee would result in the ugliest confirmation battle in American history.

Those predictions were reasonable and may yet be proven right. But so far they’ve been wrong. And the looming election may be the very reason elected Democratic officials have been reluctant to personally attack Amy Coney Barrett over the last week.

I’m not opposed to the justice, she seems like a very fine person,” Joe Biden said at the presidential debate in Cleveland on Tuesday night.

Biden stuck to his 2020 talking point that the winner of the 2020 election ought to pick the next justice, glossing over his 2016 claim that there is a “constitutional responsibility” to hold a Senate vote on a Supreme Court nominee, even after the election in a lame-duck session of Congress.

Biden mostly focused on the process argument, but he did raise the possibility that Obamacare and Roe v. Wade could be overturned.

Biden went on to say that Barrett has “written, before she went in the bench, which is her right, that she thinks that the Affordable Care Act is not constitutional.”

As Ramesh Ponnuru wrote yesterday about the current lawsuit attempting to strike down Obamacare: “There is no evidence that Barrett looks positively at this lawsuit. Biden’s statement insinuates that we can take her comments about previous cases against Obamacare to indicate her support for it. She has said that Roberts stretched the meaning of the ACA to uphold it as a tax. She’s right about that. But that view doesn’t imply that the current lawsuit should prevail.”

After raising the issue of Obamacare last night, Biden said: “The other thing that’s on the court, and if [the Affordable Care Act is] struck down, what happens? Women’s rights are fundamentally changed. Once again, a woman could pay more money because she has a pre-existing condition of pregnancy. They’re able to charge women more for the same exact procedure a man gets.”

Biden later said that Roe v. Wade was on the ballot, and Trump responded by saying: “You don’t know her view on Roe v. Wade.” Trump glossed over his 2016 statement that Roe would be overturned and abortion policy set by the states if he appointed a few Supreme Court justices.

In Tuesday night’s heated, chaotic, and ugly debate, the conversation about Amy Coney Barrett was surprisingly civil.

Politics & Policy

Mute Their Microphones

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Politicians cannot be trusted to know when it’s appropriate for them to speak. I’ve always hated crosstalk and interruptions during presidential debates, but last night’s absurd waste of time really drove home the extent of the problem.

The solution is simple: Mute the candidates’ microphones, and have the moderator unmute them one at a time when they need to answer questions.

Elections

Trump Did Himself No Favors

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President Donald Trump argues with debate moderator Chris Wallace of Fox News Channel during the first presidential campaign debate with Democratic presidential nominee Joe Biden in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

The debate was a remarkable example of the fact that Donald Trump, the most self-serving man in America, doesn’t know how to do himself any favors.

For the first ten or twelve minutes of the debate, he was walking away with it — Trumpy, sure, but in control and surprisingly reasonable-sounding. If he had kept that up for the whole night as Joe Biden dodged questions about court-packing schemes, couldn’t figure out whether he supported or opposed the Green New Deal, and attempted to brazen his way through the undisputed facts about his son’s business dealings, Trump might have been able to make a plausible case that his administration delivered a strong economy (that’s presidential superstition, but this is how we talk about these things now) that was producing some pretty impressive numbers until the epidemic, and that his administration responded strongly to the coronavirus by halting flights from China, for which he was called a hysterical xenophobe. (Which, of course, he is.) There would be a lot of bull in that, of course, but it would be a basically defensible case, and one that would have been relatively easy to sell with the economy making a faster recovery than most had expected.

Trump’s goal seems to have been something different: to establish that Biden is too diminished and weak to do the job. Hence the schoolyard antics. It probably doesn’t matter (because debates rarely change anybody’s mind), but Trump didn’t need to do that: Biden was always going to do it for him. But if we assume that there are some genuine on-the-fence and persuadable voters, this was the wrong way to reach them — because people who are going to be snookered by that kind of dumb, posturing bluster already are voting for Trump. The people who think Biden is senescent and doddering, and who are voting based on that, already are Trump voters.

Even the softball question about white supremacists he couldn’t quite get right: “Stand by”?  If Trump had a lick of wit about him, he might have said: “White nationalism and anti-Semitism? You know I live in New York, right? I live there on purpose, and it’s a terrible way to surround yourself with conservative white Protestants. Proud Boys? What do I have do to with these low-rent nobodies?”

And who is advising Trump on health care? When Biden knocked him for his lack of a “comprehensive plan,” he insisted that he has one, which, of course, he doesn’t. He should have acted like the businessman he plays on television and run with it: “You’re right, Joe, we’re not pursuing any sweeping, national health-care legislation. There won’t be any Rose Garden signing ceremony for ‘Trumpcare.’ We have a divided government and no real consensus on the issue, and trying to remake the health-care system at large without consensus and buy-in doesn’t work, as you, of all people, should know. That’s why Obamacare has failed. Most of your own party today disagrees with you about health-care policy, and most Democrats are closer to Alexandria Ocasio-Cortez and Bernie Sanders on this than they are to you. And that’s why your comprehensive plan isn’t going to amount to squat. Instead of something like that, my administration is making discrete reforms when and where we can—the individual mandate, veterans’ care, and drug prices — which may not have the allure of a grand scheme but which might actually make life a little better for a few million Americans, especially the elderly and veterans.”

But, derka-derka worked for him in 2016. So, who knows?

The problem for Joe Biden, emphasized last night, is that there is a difference between the candidate he has been for most of this race — “Not Donald Trump” — and the one he has to be for the last part of it.

Education

My Thoughts on an Over-Hyped Book — ‘The Cult of Smart’

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(Pixabay)

“Progressives” will use any excuse to insist that we need a bigger, more powerful state: climate change, institutional racism, inequalities of all sorts, etc. In his recent book The Cult of Smart, lefty writer and sometime academic Fredrik deBoer does that. His complaint about America is one that is not without merit, namely that our education system has stacked the deck against those who are not smart. That is to say, people who struggle with schooling.

In today’s Martin Center article, I review deBoer’s book, which has gotten some praise from non-progressives.

It deserves a bit of praise for going where very few leftists will go — criticism of our education system which is the pride and joy of the American left. They run it and they benefit from it. Whenever it seems not to work ideally, they say that the solution is more money for still more education. That’s what irks deBoer. In his experience, many students are not cut out for the academic credentials race and the standard “we just have to try harder with them” line is flat wrong.

In that, he’s right. Over the last few decades, a number of non-progressives have made the same argument (especially Thomas Sowell and Charles Murray), but deBoer doesn’t show any familiarity with their work, nor with older liberal scholars like Randall Collins who have long criticized our obsession with educational credentials.

Overlooking others who have looked into this problem isn’t in itself an indictment of the book. What is an indictment, however, is deBoer’s insistence that the only solution is to go full Marxist. He proudly proclaims his devotion to Marx and therefore isn’t interested in any efforts at improving our educational market because he is against markets. 

So, the book fails as a work of serious educational policy. It also fails as a serious work about Marxism because deBoer is happy just to paint with a broad brush for leftists, never bothering with any of the well-known objections to arranging society on his “from each according to his ability, to each according to his needs” vision.

Elections

Actually, The Debate Was About Issues

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President Donald Trump and Democratic presidential nominee Joe Biden stand on stage at the end of their first presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

I know. A lot of folks are saying the debate was an ugly, insult-filled shouting match that barely got down to cases. Actually, I thought it was a highly entertaining exchange that helpfully spotlighted the candidates’ differences on issues. An ugly, angry exchange? Well, at least it looked like America. If you took all the people who bite their tongues instead of saying what they really think of folks on the other side, put them in a room together and let them loose, this is what we would sound like. Pretty? No. Honest. Yes. The debate’s decorum was a snapshot of where we are as a country. I think that’s less because of the president’s personality than because we don’t agree with each other about some pretty fundamental things—and because much of what we disagree about is the motivation of the other side.

Some say the shouting match must have put off persuadable voters in the middle. I have a different take. Voters who haven’t decided yet aren’t likely waiting for a nuanced policy debate. If they were, they’d have already made up their minds. Instead, undecideds haven’t yet focused as much on the issues as we political junkies have. Undecideds are looking for the big-picture on the candidates’ differences, and that is what they got.

For my money, the law-and-order segment was the decisive exchange of the night. The differences between the candidates were stark. I think Trump was likely the big winner there, but that presumes the country is closer to his view than Biden’s. I guess we’ll have to wait and see. The section on climate change versus the economy was also clarifying. The most important and politically consequential controversy—Biden’s shifting position on fracking—was never properly addressed. Even so, the very different ways in which the candidates strike the balance on environment-versus-economy came through. I think that’s another winner for Trump.

I used to listen to debates like a policy wonk. That blinded me to much of what was happening in 2016. Of course, this isn’t 2016. Four years later, the president’s abrasive ways have worn thin with many voters. During these exchanges, however, I saw a president who was sharp as a tack, well able to call up interactions he’d had with world leaders and his policy people in order to make his points. Trump was tough to the point of rudeness, as usual, but had an energy, acuity, and strength that Biden lacked. When it comes to policy details, Trump can be frustratingly thin. But when it comes to the big-picture issues and options, the president comes through. He never explained in detail why Critical Race Theory is so pernicious, for example. But I’m betting that enough voters have knowledge of these insidious indoctrination sessions and the troubling culture they’ve spawned to take the president’s point. What other politician would have had the guts to tackle this issue? A lot of voters will appreciate that.

Biden held up very well for about the first hour. He far surpassed the ridiculously low expectations Republicans had set for him, and that has undoubtedly helped him. That said, Biden seemed to me to visibly fade in the last half-hour. He never quite lost it, but his mumbling, semi-confused manner emerged. A couple of times it seemed as though the president’s interruptions actually saved Biden from what was beginning to devolve into word salad.

I don’t think the tax return issue hurt the president at all. Biden’s denials on the charges of Hunter’s corruption are unconvincing to anyone who has followed the issue. Even so, the Democrat-dominated media will likely succeed at obscuring the controversy. For all the personal attacks, it was the big-picture policy differences that came through. I think this will matter to undecided voters.

Maybe that’s all neither here nor there in the face of the tone and tenor of the debate. Maybe voters are just tired of the president’s aggressiveness or wary of Biden’s age and acuity, or just sick and tired of the whole ugly mess that our politics has become. A lot of the commentary so far has suggested as much.

Perhaps. But I think this debate has reminded the relatively few voters who may have only recently tuned in to this election how profoundly the candidates differ on the direction our country should take. To me, that suggests the race will continue to tighten.

Elections

A Static Debate

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Two ways: There was a lot of static during the debate, and it didn’t change anything. I wrote up the lowlights for Bloomberg Opinion, because there were no highlights.

Elections

Wait, Does Biden Oppose Shutdowns Now?

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Democratic presidential nominee Joe Biden participates in the first 2020 presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

There is no way anyone was going be enlightened during the debate tonight. But Joe Biden, like so many Democrats, keeps accusing Donald Trump of both being the cause of the 204,000 lost lives and also the cause of the economic downturn. Tonight, in fact, Biden said, “This is his economy. He shut down.”

Does Biden, who argued that his agenda is the Democratic Party’s agenda tonight, not agree with the shutdowns? Because during the Republican National Convention in August, Biden was pushing back against reopening by claiming he would use some yet-to-be-invented executive power to “shut it down” again. “I would be prepared to do whatever it takes to save lives, because we cannot get the country moving until we control the virus. That is the fundamental flaw of this administration’s thinking to begin with,” he told ABC News.

The “fundamental flaw” was reopening. For months, Democrats have treated any talk of opening businesses, parks, and churches again as tantamount to condemning millions to death. It is only recently that that there’s been any real debate over the efficacy of shutdowns — and that is mostly about schools. In August, there were a slew of pieces accusing Florida governor Ron DeSantis of manslaughter.

When Trump partially closed travel from China, there were widespread accusations of xenophobia. New York City had a Democratic governor and mayor, and the tri-state area experienced, by far, the highest death totals. Bill De Blasio was down in Chinatown and out in Flushing — one of the hardest hit areas in the New York area — telling people to get out and support local businesses. It’s difficult to imagine that Donald Trump telling people to stay home would have made a difference. I have yet to hear how Biden or Democrats would have kept coronavirus out of the country, either.

Democrats have been pushing this counter-history for months, and it makes no sense. Today, the only plan Biden mentioned related to coronavirus was passing another stimulus bill. Democrats are filibustering a stimulus deal. It has been the reopening that’s mitigated some of the economic disaster. And the reason that has happened is that states didn’t listen to Joe Biden.

I get that coronavirus is going to be politicized, but someone should figure out how Democrats can claim to be able to stop COVID from spreading and keep the economy open. Because you can’t do both.

Elections

Well, That Was Dispiriting

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The debate was pretty awful and I think the most important, and perhaps only, takeaway is that Biden didn’t buckle. He got flustered at times, did his share of interrupting, and was evasive on some key questions. But the point of the president going Full Trump, as Dan puts it below, was to make Biden crack and it didn’t happen. So Trump turned in a performance that a lot of viewers will find unpresidential without getting the upside. I doubt the debate will change the race much one way or the other, but Biden benefits every day the trajectory of the race stays the same.

Elections

The First Debate Showed Why Biden Will Win

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Democratic presidential nominee Joe Biden participates in the first 2020 presidential campaign debate with President Donald Trump in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

Joe Biden is not Hillary Clinton, and that will be enough to win him the election this November.

This much has been clear since Super Tuesday this year during the Democratic primaries. In 2016, Hillary split several very important states with Bernie Sanders on Super Tuesday, and those she won, she won without walking away. In 2020, Democrats reran the same experiment with Joe Biden, even keeping Bernie the also-ran around to act as a control factor. The results were strikingly different. Biden annihilated Sanders on Super Tuesday. It appears that a lot of the Vermont senator’s support in those states last time around was motivated more by antipathy towards Hillary than by affection for Sanders and his agenda. Given the opportunity to vote for someone other than Hillary, voters ditched Sanders in droves.

The same dynamic will play out in the general election this November. Voters who flocked to Trump in 2016 because he met the indispensable criteria of not-being-Hillary will abandon him when offered a non-Hillary alternative.

The first debate showed why this result is all but inevitable at this point. At several intervals, the president descended into what can only be described as merciless bullying. Biden, it should be noted, was susceptible to bullying in the first place because he appeared to be punch-drunk from the get-go, and could not seem to find his marbles at any point during the debate.

But Trump went seriously out of bounds at several points. He refused to acknowledge Beau Biden’s honorable military service, pivoting instead to Hunter Biden’s cocaine addiction. Needless to say, family struggles with substance abuse would be completely out of bounds during a political debate in a healthy, dignified society. 

But the personal attacks didn’t really land. They just drew attention to Trump’s comprehensive paucity of class and moral fibre. And they didn’t land because they weren’t directed at Hillary Clinton. Trump’s pugnacious and bullish behavior is not a new debate tactic that he’s picked up this year. His behavior during the debates with Clinton was very similar — he even insinuated that he’d throw her in jail given the chance. But Trump’s pugilism didn’t hurt his debate performances as much last cycle because it was aimed at Hillary, a woman for whom huge swathes of the electorate cannot muster a single shred of sympathy. She was so disliked and so abhorred by so many Americans, that everything Trump threw in her direction was, if not applauded, then ignored in light of Clinton’s own record of staggering moral illiteracy.

The truth is that Donald Trump as a candidate was tailor-made to beat Hillary Clinton, but his style of politics doesn’t adapt very well to less hated opponents. Put him in a room with a candidate even marginally more sympathetic than Hillary and he comes across as little more than a latter-day Biff Tanner, tormenting whichever hapless McFly is unfortunate enough to be in close proximity to him. 

The first debate solidified a conviction I have long held about this era of American politics: that Hillary Clinton will go down as its most significant and influential actor. She was such a bad primary candidate in 2016 that she opened the door for a socialist takeover of the party base. She was such a bad candidate in the general that she lost to the headliner of WrestleMania 23, who will in turn lose this fall because his entire political personality was cultivated to exploit the nation’s antipathy towards Clinton, and there’s no other electoral lock that he can pick. When all is said and done, Hillary Clinton’s epoch-defining awfulness as a candidate for public office will be seen as the hinge around which this entire decade of political history in America turns. Trump tried all the old tricks tonight that he pulled out in 2016, but not running against Clinton proved to be his Kryptonite. It’s simply harder for most people to hate Joe Biden than it was for them to hate Hillary Clinton, and so Trump’s personal depravity comes across less as Defcon-1 necessity and more as a sordid personal and national disgrace.

Donald Trump and Hillary Clinton were the two least popular major party nominees to ever run for president. Not being Clinton was enough for Trump to win. It stands to reason that not being either of them will be enough for Biden to win as well. 

Elections

Everybody Loses, Which Helps Biden

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President Donald Trump and Democratic nominee Joe Biden participate in their first 2020 presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Morry Gash/Pool via Reuters)

Reactions to tonight’s debate will likely be deeply polarized, as everything else is. There are a few things that are clear.

One, this was probably the worst presidential debate in American history. There was a ton of cross-talk and shouting down, there were many bald-faced lies and obvious evasions, a former vice president of the United States called the sitting president a “clown,” and the sitting president openly doubted whether the United States would hold a free and fair election. Chris Wallace completely lost control of the debate on many occasions, although it is difficult to see how any moderator could have saved this debate.

Two, there is some karmic retribution here for Joe Biden, although it may not hurt him. The story of the 2012 vice-presidential debate was Biden bullying Paul Ryan, talking constantly over his answers, and being cheered ecstatically by Democratic partisans for doing so. Tonight, Donald Trump turned that same weapon against Biden, interrupting him incessantly, throwing him off his train of thought on a few occasions (Biden fought back a few times, but Trump was the primary offender in that regard). Biden’s campaign will now act enormously, grievously offended by anyone acting like Joe Biden on a debate stage.

Three, Trump continues to be in bad shape in the polls, and has staked a lot on Biden’s advanced age, weeks away from public appearances, and his frequent verbal stumbles and confusion. Biden was by no means the old fast-talking Joe Biden, but he did not look senile, fragile, or lost. It may yet be that Trump is stronger than he appears in the polling, but if you were expecting tonight’s debate to move the needle in Trump’s direction, it seems very unlikely to do so.

If voters were looking for a strong, combative figure, they may like what they saw from Trump more than what they saw from Biden. But if they are looking for reassurance that four more years of Trump will be less wild than the first four, they did not get that. He went Full Trump.

Each side had its good and bad moments. Trump was far more authoritative in the discussions on vaccines (where Biden yet again floated mistrust of a vaccine if Trump is president) and, strangely, forest management. Biden responded with bald-faced false denials of every story about his son Hunter. Biden was touchy about suggestions that he’s not in charge, broadly declaring that “I am the Democratic Party!” and distancing himself from anti-cop sentiment and defunding the police, but he also flatly refused to answer questions about court-packing, and Wallace let him off the hook on answering questions about banning fracking. Trump actually did respond positively to Wallace’s request that he tell the Proud Boys and white supremacists to stand down and get off the streets, but refused to buy into the claim that they were anywhere near the source of street violence the Left is — while Biden retreated into denial on Antifa (claiming that it does not exist and is just an idea) and refused yet again to denounce anybody on the left for any responsibility for street violence. Biden tried to have it both ways on shutdowns, which gave Trump an opening to be anti-shutdowns and accuse Biden of wanting to shut down everything. That said, Trump — as one would have predicted months ago — had to embrace mask-wearing and Dr. Fauci for cover.

Easily the worst part of the debate for Trump was the end, in which his responses can only be called disgraceful. He ranted about fraud in ways that offered no reassurance whatsoever in the fairness of the election; while Biden likewise spent his answer talking about Trump having to concede, Trump went a good deal further in flatly refusing to tell his supporters to remain calm, and in suggesting that he might need the courts (even the Supreme Court) to step in to prevent voter fraud. It is difficult to see how this could do anything but hurt him and undermine faith in the system. He probably gave Democrats a talking point to use against confirming a new Supreme Court justice, which won’t stop the confirmation but could raise the political cost for some embattled senators of voting for Amy Coney Barrett.

Trump did not fall into the complacency or ennui that typically affect incumbents in their first debate, but he needed more from this debate, he didn’t get it, and that is probably bad enough.

Law & the Courts

Re: Biden Refuses to Answer the Court-Packing Question

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Dan notes that Biden wouldn’t share his view of Court-packing. Instead, he said:

“Whatever position I take, that will become the issue … I’m not gonna answer the question.”

I’m afraid that I do not understand this argument. Yes, whatever position Joe Biden takes will become the issue. This is because Joe Biden is running for president. Whatever position the two candidates take on an issue — during a debate about those issues — is going to become the issue. That’s how this works.

Elections

Biden’s Bad Vaccine Line

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I’ll give further thoughts on the debate in another post. But I just wanted to draw attention to one moment early on where Biden started talking about upcoming COVID-19 vaccines and how we can’t trust Trump. I hate that he and his campaign are saying this in this way. Maybe it works with suburban moms or the majorities of Democrats who say they think the vaccine process has been rushed by politics. But I think it’s destructive.

As I’ve tried to emphasize again and again, the pharmaceutical companies that are racing to find and produce a vaccine for COVID-19 are not going to throw out all their Trump-era work and start over again if and when Biden takes office. The winners in this process are doing their scientific work right now. And Trump has nothing to do with it.

Elections

The Jerry Springer Debate

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President Donald Trump and Democratic nominee Joe Biden participate in their first 2020 presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Brian Snyder/Reuters)

It’s a shame that Joe Biden couldn’t attend Tuesday night’s debate.

Okay, Biden was in attendance, but during the 90 minutes, it felt like he barely ever finished a complete sentence.

It’s not clear that President Trump necessarily won the night, in the sense that people who were leaning against voting for him are going to start preferring him. But with motor-mouthed, relentless heckling and constant interruptions, Trump made it impossible for Biden to make any of his arguments. Trump did to Biden what Biden did to Paul Ryan eight years ago.

A few times, Biden lost his cool: “Would you shut up, man?” “Keep yappin’, man.” “It’s hard to get anything in with this clown.” In other circumstances, the challenger taking that tone with the president of the United States would backfire. But Trump is unlike any other president, with no use for decorum, restraint, or rules, and so Biden is unlikely to suffer much for his own outbursts.

God help you if you tuned in, hoping to learn more about the candidates’ policies. Biden came to win a debate, and Trump came to win WrestleMania. Like a Macy’s Thanksgiving Day Parade balloon, Trump just expanded to fill the whole room, filling up his time and spilling over into Biden’s time, hammering home whatever he wanted to talk about, whether it was related to Chris Wallace’s question or not. The transcript is going to read something like this:

WALLACE: Gentlemen, if we could-

[CROSSTALK]

[CROSSTALK]

[CROSSTALK]

[CROSSTALK]

WALLACE: Gentlemen, this is not—

[CROSSTALK]

[CROSSTALK]

[CROSSTALK]

[CROSSTALK]

WALLACE: I swear to God, if you two don’t please—

[CROSSTALK]

A lot of Democrats are going to blame Chris Wallace for this, but no moderator ever faced a challenge like this before. After about an hour, Wallace did his best impression of an irate dad ready to turn this car around right now if the kids in the backseat didn’t stop bickering. But Wallace’s fuming didn’t change the tone of the debate that much. Trump simply didn’t care what the rules were; any time he thought of some zinger, counter-argument, or insult, he let loose — and fairly or not (mostly unfairly) Biden often looked frustrated and flummoxed.

Trump fans will look at this and conclude their man won. He certainly made it impossible for Biden to make his points, and Trump had way more time to make his own arguments, so by that standard, Trump “won.” But I’m not sure a performance like this is what dislodges Biden supporters and brings them over to the Trump side, or wins over whatever remaining undecided voters are out there. Maybe on the margins, soft Biden supporters found the Democratic nominee overwhelmed by Trump’s relentless barrage this evening, and wonder if Biden can handle the pressures of the presidency. But I wouldn’t expect to see much movement in the poll numbers.

I suspect many Democrats will declare this debate was a train wreck and waste of time and encourage Biden to withdraw from the next two debates. Who knows, perhaps he will. The American people know their options by now.

There’s one other unusual aspect of this evening.

For the past five decades, all Joe Biden has had to do is show up and be himself.

There isn’t a huge difference between the Biden of the 1988 presidential campaign and the 2008 campaign and the 2020 campaign. He’s more or less the same guy from the Anita Hill hearings to the crime bill to the Iraq War to the vice presidency. He looks a lot older and maybe he speaks — or thinks? — slower than he used to, but he’s still pretty much the same guy.

He’s always been garrulous, usually amiable, something of a blowhard, unintentionally goofy with his gaffes. Who he was, naturally and instinctively, was usually good enough for whatever was in front of him. After he was first elected to the Senate in 1972, no Republican ever won more than 41 percent against him. His natural instincts were good enough to make him the chairman of the Senate Judiciary Committee and Foreign Relations Committee. Obama had a lot of options for his running mate who were younger and from more valuable states, but he chose Biden. As vice president, Biden generated more than his share of gaffes — “Stand up, Chuck!” — but the Obamas and the rest of the administration valued him as a member of the team. (Maybe an administration brimming with self-regard like the previous one needed a veep making silly faces behind the president during the State of the Union Address.)

This cycle, being the familiar old Joe Biden was enough to overtake Bernie Sanders. He didn’t even really need to campaign that hard; Biden won Minnesota Democratic primary without visiting the state once. Once the pandemic hit, most of the traditional tools of campaigning weren’t available to Biden; he just had to make intermittent appearances via video and attend virtual fundraisers.

And up until tonight, just being himself was enough.

Tonight, it wasn’t enough.

Elections

Biden’s Empty Chairs

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Joe Biden asked America how many of us “have an empty chair” at home because of loved ones who have lost their lives to coronavirus. Without a straightforward and convincing plan for how he would have handled things differently — which I have yet to hear so far — Biden is guilty of emotional blackmail; “Vote Biden, or there will be more!” It’s a gross tactic that reminds me of the girl at the Democratic Convention who accused Trump of killing her father.

Trump has undoubtedly failed in his rhetorical leadership to some extent during the pandemic, but there’s still something galling about this particular attack. Biden’s running a character-focused campaign with an emphasis on empathy, but this appeal exemplified a fake, self-serving kind of empathy.