Law & the Courts

To Save the Lie, Lie Some More

Supreme Court Justice Clarence Thomas in Washington, D.C., June 1, 2017 (Jonathan Ernst/Reuters)

Slate’s Mark Joseph Stern is upset by Justices Thomas and Alito, who have today issued a warning about a problem that has been obvious to everyone since at least 2015:

By “jaw-dropping rant,” Stern means that Thomas and Alito outlined calmly why it creates real issues when the Supreme Court invents rights out of whole cloth, as it did in Obergefell. As I have been since before Obergefell, I remain in favor of gay marriage. But this is by no means the same thing as believing that there is a right to it in the Constitution, or as believing that Justice Kennedy’s majority opinion was anything other than absolute nonsense — and an abuse of power to boot. Obergefell will not be overturned, and, pace Stern, neither Thomas nor Alito suggests that it will be. But they are correct to worry that, as it is written, it will be used to limit the rights that are actually in the Constitution, and they are right to note that this is precisely why all questions that do not have a footing in the document are better resolved by legislatures.

In a follow-up tweet Stern explains that, by issuing their dissent, Thomas and Alito have shown why Democrats must “expand the Court” — by which he means “pack the Court with politicians.” But precisely the opposite is true. As in Roe, the Court lied about the Constitution in Obergefell, and it is now going to have to deal with the distortions that were created by that lie. In effect, Stern is arguing that, in order to maintain this lie, the Court must be staffed by more people who are prepared to lie — a never-ending cycle that, if successful, would destroy the Constitution as it is written. Perhaps that’s the point, after all?


Despising Trump


In an interview, Senator Ted Cruz tried to explain the evolution in the jurisprudence of Chief Justice John Roberts. Cruz has some history with Roberts — both having clerked in the Supreme Court. Cruz speculated that the motivation behind Roberts’s change was “personal” and that “John despises Donald Trump.”

He added, “It is difficult to come up with two human beings more antithetical than John Roberts and Donald Trump, in every respect.”

I suspect Cruz is correct that Roberts has gotten more creative in his rulings and that he probably doesn’t much admire Donald Trump. Judges exist in a social milieu. And it’s only human to wonder if members of the Chevy Chase Club are really willing to cross polite opinion when it matters.

But, doesn’t Cruz despise Donald Trump? I remember what Cruz said at the start of the 2016 campaign and what he said at the end of it:

Beginning: “Sorry to disappoint — @realDonaldTrump is terrific. #DealWithIt”

End: “I’m going to tell you what I really think of Donald Trump . . . The man is utterly amoral. Morality does not exist for him.”

I always felt that Trump’s manifest faults drove Cruz to “get real,” And that, considering what Trump did to Cruz during the campaign, nobody should hold it against Cruz for despising Donald Trump. But, I don’t think Cruz has changed his fundamental views in light of Trump.

Politics & Policy

Help Fight Against State-Sponsored Discrimination


The Left insists upon discriminating on the basis of identity.

California’s Prop 16 would repeal Prop 209, which states as follows: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, and public contracting.”

Prop 209 was passed by Californians in 1996. Even in the nation’s most progressive state, discrimination repulsed the majority of voters.

That was nearly a quarter century ago, before BLM, Antifa, and the near completion of the Left’s march through the institutions. So when Democrats  succeeded last spring in getting Prop 16 placed on the November ballot, nearly every prognosticator assumed that, in hyper-woke California, it would pass easily.

Astonishingly, however, recent polls show California voters rejecting Prop 16. But the danger is that this sanity may not last long. The pro-discrimination forces (i.e., those favoring Prop 16) are far better-funded than the equal treatment forces. In fact, the pro-discrimination Prop 16 forces are outspending the pro-equal treatment Californians for Equal Rights by a margin of 12-1. Not a surprise considering that Prop 16 is supported by the deep pockets of Hollywood, public-sector unions,  virtue-signaling corporations, and woke athletes as opposed to average citizens who believe in equal treatment under the law.

Californians for Equal Rights is running out of money. If they do, it’s likely state-sponsored racial and sexual discrimination will become lawful in the nation’s most populous state, and eventually, in others. You can help.

Politics & Policy

Back When Presidential Doctors Were Unsparing with the Jargon

Ronald Reagan delivers his “A Time for Choosing” speech, October 27, 1964. (Reagan Foundation/via YouTube)

As noted in today’s Morning Jolt, the president of the United States is covered by HIPAA just like any other American citizen, and thus, his doctors cannot disclose any of personal health information if the president doesn’t want disclosed. Whether or not you think that ought to be the law, that is the law.

That said, it would probably be best for the country if the president authorized his doctors to release anything they felt necessary to provide a complete picture of his condition, and/or to assure the public.

In 1985, when President Ronald Reagan was hospitalized for surgery to remove a growth on his intestine that turned out to be cancerous, his doctors and White House officials released quite a bit of information, in much more detail than we’ve seen from the briefings regarding President Trump’s health in recent days. Back then, Dr. Steven Rosenberg, chief of surgery at the National Cancer Institute and one of the surgeons assisting in the procedure, spoke to reporters himself, as did Dr. Dale Oller, chief of general surgery at Bethesda Naval Hospital. The briefing began with a description of “the formal operation known as a right hemicolectomy and we put the bowel back together by doing an ileo transverse colostomy.”

Dr. Edward Cattau, who is the head of gastroenterology at Bethesda, elaborated, “There certainly was a lot of consideration to the possibility of a colonoscopy then but because of the histologic findings — specifically that polyp was, as you know, a pseudo polyp, inflammatory tissue, not a true adenoma, the type of polyp associated with the potential for malignancy — there was no indication for a total colonoscopy because of the histologic findings.”

Q: Could you give us his vital signs, the kind of anesthesia that you used, and the drugs that he’s on right now?

A: He’s on an intravenous right now, which consists of what we call dextrose, a sugar and ringers lactate. I do not have his personal vital signs at the moment. They have been stable. He’s run a normal blood pressure. And his heart rate has been satisfactory. Now I’d be guessing, but I think that it’s slightly over 80.

Q: Is he on any drugs right now?

A: Currently he is on no medications. Of course he will be receiving post-operative antibiotics.

Q: Is he in any pain right now?

A. No, he’s not. We’re utilizing a technique in order to try to avert pain.

Q: What is that?

A: Immediately after the surgery was completed he received a modern technique of intracecal injection of a milligram of morphine. This very frequently causes people to have a totally diminished pain response and therefore are able to function normally, from a mental standpoint and from an otherwise physiological standpoint.

After the growth was determined to be cancerous, the doctor’s public statements did not sugarcoat it at all:

Rosenberg noted, however, that there is a chance of recurrence and said that Reagan would have to undergo a variety of repeated tests in years to come. These would include colonoscopies, the procedure that discovered the tumor last Friday, and CAT scans, computerized X-ray examinations that provide visual cross-sections of parts of the body.

“There is a possibility that the tumor can return,” Rosenberg said. Asked to be more specific about the chances of recurrence, he indicated that they would be somewhere between 25 percent and about 50 percent.

When he first announced the lab findings, Rosenberg said, “The president has cancer.” Although he later explained that he did not mean to imply Reagan is known for certain to still have the disease, the language did convey what doctors generally feel: that once a person has been diagnosed as having had cancer, the person must be regarded as in a special category of higher risk.

This may be a lot more than most Americans ever wanted to know about a president’s colon. But the deluge of information, with specifics, made clear that the White House wasn’t hiding anything about the procedure or the president’s condition.

The more data and detail the president’s doctors provide, the more people will conclude they’re getting the whole story. When the doctors are direct with the public about the bad news, no one fears that something worse is being hidden from them.


Our Old Friend (Enemy) Disinformation

Russian leader Vladimir Putin arrives for a meeting with journalists in Moscow, June 15, 2017. (Sergei Karpukhin / Reuters)

Russia is engaged in a disinformation war — whether we like it or not, or respond or not. Can it be called a war if only one side is in it? The United States is in it, to a degree. But our effort is half-hearted, at best.

I have written a piece on this subject, appearing on the homepage today: here. On the Corner, I’d like to amplify a bit.

Daniel Fried is a retired U.S. diplomat, a onetime ambassador to Poland, for instance. About social-media platforms, he has said, “They don’t care about political concerns. They’re not interested in war. But war is interested in them.” (Here he is adapting Trotsky, of course.)

To one of his rallies last month, President Trump said, “I like Putin, he likes me.” That is no doubt true. But does Putin like you and me, or any other American citizen?

Thomas Kent quotes Ambassador Fried in his new book, Striking Back: Overt and Covert Options to Combat Russian Disinformation. Kent is a former president of RFE/RL (our combination of Radio Free Europe and Radio Liberty). I did a Q&A podcast with him, here. I also did a podcast with Jamie Fly, another past president of RFE/RL. That podcast is here. Recently, Fly gave testimony before Congress on Russian disinformation.

It is a very important topic.

The Kremlin has been at this game for a long time, of course. The Soviet Union established an agency for disinformation in 1923. A disinformation war is one of the practices that carried over from the Soviet Union to contemporary Russia — particularly with the ex–KGB colonel in charge.

My critics — left-wing and right-wing — often tell me, “Russia is not the Soviet Union, you know!” Oh, I know. But does the Kremlin? Often they don’t act like it.

Let me pause for a quick note on the difference between “misinformation” and “disinformation.” In today’s piece, I write,

“Misinformation” is an innocent mistake: You report that Mr. Smith lives on Elm Street when he in fact lives on Maple Street. On learning of this error, you correct it. “Disinformation” is not innocent. It is a lie, intended to achieve a political end.

One of the Soviet Union’s great disinformation successes was its AIDS hoax: the claim that this virus was concocted by the U.S. government in a Maryland laboratory for the purpose of decimating black people, gay people, intravenous-drug users, and other “undesirables.” It’s amazing how many Americans believed that. I wrote about it in a column last year, here. The Soviets concocted a lie that lingers to this day.

You know how it began? With a single plant in an Indian newspaper (the Patriot). It built from there — paper to paper, until Spike Lee and other celebrities were trumpeting it. Today, of course, communication is lightning fast.

Have some Jonathan Swift: “Falsehood flies, and truth comes limping after it, so that when men come to be undeceived, it is too late; the jest is over, and the tale hath had its effect.”

In 2020, Kremlin disinformation artists have another virus to play with. They say that COVID-19 is an American bioweapon. That U.S. soldiers, serving in NATO units, are infecting local populations with it. That Bill Gates is behind it all. Etc.

One great question about the disinformation war is, Should the United States, and other democracies, fight back, seriously? Should we counter the lies and promote democratic values, over authoritarian ones? There are objections to fighting back, which I address in my piece. Here, I would like to quote Tom Kent:

. . . while Western companies never relent in defending their brands and market share, Western democracies took for granted after the Cold War that political liberty had become the world’s natural condition. Efforts to campaign for democracy abroad, and to teach civic consciousness at home, declined in what policymakers increasingly saw as a post-conflict world.

I often think of what Radek Sikorski told me, in a podcast a couple of years ago. (He is the Polish statesman, politician, writer, and journalist, who, in a different age, worked for National Review.) He said that democratic values have to be argued for, constantly. Generation after generation. New people are born — up for grabs — and older people have to be reminded.

Anti-democrats never rest. They never let up, in trying to achieve the world they want. If only democrats were half as energetic . . .

In our Q&A, Tom Kent said that Russia is the disinformation champion, yes — the state that is best, and most persistent, at this dark, destructive art. But anyone can play the game now. Software is increasingly available. You can make bots, doctor photos — the works. Private companies will do your disinformation for you. They even have customer-support lines.

How do you like that?

Last month, Christopher Wray, the FBI director, gave some testimony before Congress. Asked about the Kremlin and its machinations, Wray said, “We certainly have seen very active, very active efforts by the Russians to influence our election in 2020.” They are doing what they can to “sow divisiveness and discord.” Wray also spoke about how to navigate the media — what to consume.

I am often asking people about this: What do you read? What do you watch? What do you listen to? What’s your media diet? I put this question, or these questions, to both Tom Kent and Jamie Fly.

I’ll quote a little from the latter’s congressional testimony: “Information is more accessible than ever, yet access to unbiased, objective information is increasingly difficult to obtain.” Well observed.

And here is Director Wray, also before Congress: “I would encourage people to be critical thinkers, and to get their news from a variety of sources and make up their own mind, and be a skeptical, discerning electorate — which is what I think is the best defense against malign foreign influence.”

Anyway, to be continued, of course (whether we like it or not). My piece on disinformation, once more, can be found here.

Politics & Policy

The President Isn’t out of the Woods Yet, and Neither Are We

President Donald Trump talks to reporters as Senate Majority Leader Mitch McConnell (at right) and other senators listen, in Washington, D.C., May 19, 2020. (Yuri Gripas/Reuters)

The president’s hospitalization and the outbreak at the White House are vivid reminders that no, the pandemic is not over, and it is unlikely close to being over.

The U.S. Centers for Disease Control and Prevention tallies 49,327 new cases and 703 deaths. Worldometers puts Friday’s tally at 50,257 on Friday and 757 deaths. Health experts worry that as the weather gets cooler and people spend more time indoors, the virus will spread more quickly. The good news is that for the past month, the daily number of new cases and daily number of new deaths or so has been pretty steady, once you account for the drops on weekends. The bad news is that those measures aren’t really declining, either.

No matter how much some guy on Facebook insists, the United States is not “at herd immunity” or “almost at herd immunity.” If we were at herd immunity, we wouldn’t have 50,000 new cases day after day; the virus would be running out of new people to infect, because so many people had already developed the antibodies to fight it off. This doesn’t mean that every new case will turn into a life-and-death situation; a new study of 230,398 healthcare workers across 24 countries found that 40 percent were asymptomatic, suggesting that probably four in ten people can get it and not even know that they have it.

If any place in the country would be close to herd immunity, it would be New York City, site of the first and worst outbreak. Unfortunately, certain neighborhoods in the city are seeing an uptick in cases again.

There are some bright spots. We still have considerable space in the nation’s hospitals and intensive-care units. For every age group, the odds of surviving an infection are good and are improving as treatments are developed and become more refined. As we’re seeing from the president’s care, the menu of options for treatment is much better than in the spring. An outbreak among college students is much less worrisome than an outbreak at a retirement home. As an Australian epidemiologist calculated, “In crunching the numbers, Meyerowitz-Katz has found that children have a very low risk of death — about five out of every 100,000 children infected have died. But this rises to 60 of 100,000 by age 40; 680 of 100,000 by age 60; and 8,000 of 100,000 by age 80.” We’re still in a pandemic, social distancing and other protective measures are still wise, and the elderly and immunocompromised are still at higher levels of risk.

I see quite a few people convinced that if Joe Biden wins the election, the media will declare that the pandemic is over, and that all of the coverage and discussion of the pandemic since March has been a deliberate attempt to over-hypes the danger and undermine the odds of President Trump’s election. I suppose we will see. If the media really does declare on November 4 — or whenever the election is resolved, whether it is days or weeks later — that the pandemic is no longer a danger, and that everyone can return to life as normal, then all of those skeptics will be entitled to crow from the rooftops about vindication. If not, I hope they will find as public a venue as possible to recognize they were wrong and that this was not all a matter of partisan media hype.


Ones for the Ages

Arvo Pärt receives an award at the foreign ministry of his native country, Estonia, in 2011. (Estonian Foreign Ministry)

Years ago, I took part in a debate, and the moderator said, “Give me the name of an author who expresses what conservatism is, and don’t say Burke!” I thought of what a reader had written me, years before: “Name one great living composer, and don’t say Pärt!”

They really want to take your cards away, don’t they?

Arvo Pärt is an Estonian composer born in 1935. I understand that he has stopped giving interviews. I think I’ll keep trying, nonetheless. In any case, he is featured in the latest episode of my Music for a While: here.

Pärt admired Benjamin Britten a great deal, and when Britten died in 1976, Pärt wrote Cantus in Memory of Benjamin Britten, for strings and bell (yes, bell). It is an exceptional piece — but typical for Pärt.

What else is on the menu? Mozart, his Clarinet Concerto, or a slice of it. One of Mozart’s many biographers is Paul Johnson, the great British historian and journalist. He says that the Clarinet Concerto is Mozart’s “most perfect piece.”

There is an argument, as I say in the podcast — but the concerto has lots of competition, of course.

I also say that I wonder this: When Mozart laid down his pen, after finishing his Clarinet Concerto, did he think, “Huh, that was a really good one — one for the ages”? Or was it just the latest piece, another entry in the catalogue? I would like to ask him.

What else? I have a couple of samples from Joyce DiDonato, the mezzo-soprano from Kansas. I have written about her steadily for about 15 years now. There is nothing left to say. But I do say this, in a recent review:

Look, she’s one of the greatest singers of all time. Once she is safely retired or dead, no one will doubt it, for a second. Might as well embrace it now. It has been obvious for years.


Finally, some Bach — the favorite aria of a friend of mine (a former singer and a music writer): “Mache dich, mein Herze, rein,” from the St. Matthew Passion. There is certainly nothing higher. And it is good medicine in troubled times, or any times.

Again, the new episode is here.

Politics & Policy

Do Colleges Not Know How Many COVID-19 Cases They Have — Or Don’t They Want to Say?


It shouldn’t have surprised anyone that on college campuses where students returned in person, there were COVID outbreaks. At some schools, it was so bad that the students were sent back home.

But how many cases are there? In today’s Martin Center article, Shannon Watkins looks into that question.

The good news, she discovered, is that there have been few hospitalizations. But how many? She writes, “Given that universities are making consequential policy changes based on the perceived threat of the coronavirus—with some going completely remote—it would seem reasonable for them to consider how sick it is actually making people on campus.”

Finding out information on hospitalizations is not easy, she discovered. When she inquired, university administrators declined to say, citing federal law, HIPPA and FERPA specifically.

The problem is that those laws apply to individual records, not aggregate numbers. Watkins quotes one critic: “Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, told the Post that ‘the reason universities are so confused about this is that their lawyers have been misusing FERPA for decades to block public records requests for things that FERPA doesn’t cover.’”

Watkins argues that all of this information should be made public. She concludes that “the institutions’ lack of hospitalization tracking is irresponsible because it could help policymakers make more prudent and measured decisions. If many students are contracting the virus, but most are asymptomatic or develop ‘mild symptoms,’ should campuses stay shut down, forcing students to take online classes? Even with routine testing, contact tracing, and enforced self-quarantine?”


World Animal Day and Human Exceptionalism

A chimpanzee touches the hand of Diana Goodrich, co-director of Chimpanzee Sanctuary Northwest, Cle Elum, Wash., March 16, 2020. (David Ryder/Reuters)

October 4 was World Animal Day. Good news: The event was not steeped in “animal rights,” as one might expect, but animal welfare.

That’s important. The former is a misanthropic ideology that invents an explicit moral equality between humans and animals based on the ability to feel pain (painience).

Animal rights leads to despicable advocacy of the kind PETA once promoted in its Holocaust on Your Plate campaign equating meat eating and owning a leather sofa with the treatment of Jews in the Holocaust. Vile. Disgusting, but alas, typical of PETA.

In contrast, animal welfare is consistent with — and arises out of — human exceptionalism. We are the only known moral species in the universe. Only we truly understand right from wrong and good from evil.

Treating animals humanely is one of our essential duties precisely because we understand that animals are not inanimate but have emotions, can suffer, and experience pain. Of course, they are amoral beings and owe no duties to each other or us.

Thus — and ironically — even animal rights advocacy demonstrates the reality of human exceptionalism because it posits a moral obligation upon us to be radically self-sacrificial in our handling of animals — for example, becoming vegan even though we are natural omnivores. Ask yourself: What animal would forgo its natural food for a moral purpose? Obviously, none.

Look at it this way: If being human in and of itself isn’t what gives us the duty to treat animals humanely, what does?  The answer is nothing — which, it seems to me, proves that we are exceptional.

White House

Praying for a Rapid and Complete Presidential Recovery

Supporters of President Donald Trump outside Walter Reed National Military Medical Center in Bethesda, Md., October 3, 2020 (Jonathan Ernst/Reuters)

I have a list of beefs with the president a mile long, but I’m praying to see him well and happily striding out of Walter Reed, fully recovered from his coronavirus infection. I can’t get my head around the people who are gleeful about his condition, and openly proclaiming their glee.

This normally confident, ebullient president is probably feeling much more vulnerable than he usually does. I have no idea if Gabriel Sherman’s report, that Trump was asking, “Am I going out like Stan Chera?” is true. It doesn’t seem all that implausible; Trump and Chera were friends and Trump had spoken in the past of Chera’s succumbing to the coronavirus. If Trump has spent a night in a hospital before, it’s been a long time; I can’t find any press accounts of him spending a night in the hospital in years past.

The public and subsequent off-the-record statements about the president’s health have been contradictory and unclear, but whatever the situation was on Friday afternoon, it was serious enough for his doctors to conclude the president would be better treated at Walter Reed, with the full spectrum of equipment and tools on-site.

For a hospital patient, the president appeared to be in good spirits and something akin to his old self in the video released Saturday night. He’s got the best doctors, with every tool, treatment, and medicine available. But he’s still a 74-year-old man who’s fighting off a virus that is particularly dangerous to men his age. Some coronavirus patients make a full and relatively quick recovery; some are still dealing with shortness of breath or other symptoms after the virus leaves their systems.

Get well soon, Mr. President. The country and world have been through enough this year.


Air Rushes Out of the College Bubble

On the campus of Syracuse University in early 2020 (Maranie Staab/Reuters)

If there’s a silver lining to COVID-19 other than improving people’s hygiene, it is the way the pandemic is deflating the college bubble. There’s plenty of evidence and, in this Oct. 1 Wall Street Journal piece, Steve Moore provides a bit more.

He writes about his son’s experience at Villanova. Instead of returning to school at high cost ($70,000 per year) for online courses, he decided to get a job instead. He’ll probably learn more useful stuff at whatever job he has than taking classes.

Moore writes that this trend is frightening to the people who run our higher education system: “They are terrified that kids will save $150,000 by learning everything they need online…. Administrators and professors get paid in full even though most refuse to come anywhere near their students.”

College credentials have become overhyped and overpriced. Now we’re starting to see the market correction.

I read that Moore is co-founder of an organization named the Committee to Unleash Prosperity. America will have a better chance of doing that if we stop wasting so much time and money on college degrees, especially since many students leave college with a lot of foolish ideas about economics, history, and so on.


Pray for Healing — For Donald and Melania Trump and Our Nation


It’s obviously a serious thing when the president of the United States has to be hospitalized. This isn’t a game. These are real people.

I pray that this moment can be healing for a nation whose national politics and leading culture has lost a sense of humanity. It has a lot to do, I think, with how people feel toward themselves, disregard for others out of fear and anxiety, and widespread anesthetization.

Whatever you think of him, pray for Donald Trump, pray for the First Lady, and everyone they’ve come in contact with. And please be careful, for the sake of us all.


‘Positives and Negatives’


Today on The Editors, Rich, Charlie, and Michael discuss the sobering news of Trump’s positive COVID test, the mail-in ballot flip-flop, and Trump’s post-debate handling of his Proud Boys comment. Listen below, or subscribe to this podcast on iTunes, Google Podcasts, Stitcher, TuneIn, or Spotify.

Law & the Courts

Could Mike Lee’s COVID Case Delay Amy Coney Barrett’s Confirmation?

Sen. Mike Lee on Capitol Hill in 2017. (Joshua Roberts/Reuters)

Hours after President Trump was diagnosed with COVID-19, Utah senator Mike Lee announced that he too had tested positive and was experiencing mild symptoms. 

Lee is a member of the Senate Judiciary Committee, and Senate Democrats immediately tried to use the Republican senator’s diagnosis as a reason to delay the confirmation hearings of Supreme Court nominee Amy Coney Barrett.

“There is bipartisan agreement that a virtual confirmation hearing for a lifetime appointment to the federal bench is not an acceptable substitute,” Minority Leader Chuck Schumer and ranking Judiciary Committee member Dianne Feinstein said in a joint statement that didn’t actually cite any Republican objections to allowing senators to question Barrett via video.

The 49-year-old Lee, who tested positive on October 1, should be able to be back to work in person in time for the October 12 hearings — CDC guidelines updated in July recommend ten days of self-isolation following the onset of COVID-19 symptoms. 

But Lee attended a Judiciary Committee meeting on Thursday, and the exposure of other senators to Lee raised the possibility that the Barrett hearings might be held remotely or in a hybrid manner with some senators present and others attending remotely. (No other committee members are known to have tested positive at this time.) 

Despite the newfound objections to remote hearings from Senate Democrats, many Senate committees have been holding remote or hybrid hearings since the coronavirus hit the United States this spring. That includes Judiciary Committee hearings for “lifetime appointment[s] to the federal bench”:


“Full steam ahead with the fair, thorough, timely process that the nominee, the Court, & the country deserve,” Senate majority leader Mitch McConnell wrote on Twitter on Friday.

Even before Senator Lee had tested positive, Democrats were openly discussing a boycott of a committee vote on Barrett in order to deny a quorum, so Republicans were already thinking through their options to overcome such unprecedented obstruction.

“I don’t see any scenario where the committee cannot complete its work on the timeline Chairman Graham has outlined,” Steven Duffield, former counsel to Senate GOP leadership, tells National Review. “If Democrats try to play games with quorum guidelines, the Senate can use its constitutional authority to change the rules to deal with this unique circumstance.”

The bottom line is that so long as Republicans have 50 votes plus Mike Pence as a tiebreaker, they will be able to overcome Democratic obstruction, bring the nomination to a vote of the full Senate, and confirm Amy Coney Barrett.

And that’s why the biggest threat to Barrett’s timely confirmation would be a couple of Senate Republicans becoming physically unable to attend any necessary Senate votes.

One precaution they could take to avoid more COVID cases would be to wear N95 masks — instead of the cheap cloth masks and surgical masks most senators wear around the Capitol. Another precaution would be to stop hugging people. Video showed Senator Lee hugging a couple people last Saturday at the formal announcement of Barrett’s nomination in the White House Rose Garden. It’s not clear how Lee was infected, but he is one of three people who attended that outdoor event — the others being President Trump and the president of Notre Dame — publicly known to have tested positive for COVID-19 this week.

The Washington Post reported that Barrett had COVID-19 over the summer and recovered. That means Barrett likely still has antibodies that provide immunity to the virus, and she should be able to attend a hearing in person if that’s the format Judiciary Committee chairman Lindsey Graham prefers.

Politics & Policy

What Happens If Trump — or Biden — Dies Before January 20?

(Trump: Leah Millis/Reuters; Biden: Brendan McDermid/Reuters)

The age of the two candidates in this election — Donald Trump turned 74 in June, Joe Biden turns 78 in November — already put us in uncharted territory. Then we watched the obvious, visible public decline of Biden. And now, Trump has tested positive for coronavirus, and is reportedly experiencing “mild” symptoms including a fever, cough, and fatigue. All of which means that it is entirely appropriate to raise the morbid question of what happens if one (or both, for that matter) of the candidates dies or is incapacitated between now and the inauguration on January 20, 2021. Let’s run through some possible scenarios involving Trump, most of which would involve the same rules if Biden died. (My conclusions here are tentative pending further research.)

A few things, at least, are simple. One, if Trump were to die in office between now and then, Mike Pence would step in as the president, and would nominate a new vice president who would require confirmation by Congress.

Two, if one of the candidates dies after the election and has clearly already lost, it would not matter much if their electors vote for them. In that case, however, Congress would likely discard any votes cast for the candidate, without much controversy. In 1872, Horace Greeley died on November 29, three weeks after losing the election decisively to Ulysses S. Grant, but before all electors had cast their ballots. Most of Greeley’s electors voted for other candidates (including his running mate); a few still cast ballots for him. When Congress met in joint session to count the electoral votes (as mandated by the Twelfth Amendment), Massachusetts Republican George Hoar objected that the Twelfth Amendment states that electors “shall name in their ballots the person voted for as President,” and Greeley “was dead at the time said electors assembled to cast their votes and was not ‘a person’ within the meaning of the Constitution.” The two Houses adjourned, and a resolution passed in the House agreeing to discard votes counted for Greeley. The Senate did not concur, but the two Houses being divided, the votes were not counted.

Three, if Trump was certified as the winner of the election and then died, Mike Pence would not only become president, he would be inaugurated as the next president. The 20th Amendment provides for this explicitly: “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President.” “President elect” in this case means the president selected after Congress opens the electoral votes; it is less clear if it means the president elect after the electors meet and cast those votes but before they are read by Congress on January 6. The joint session that reads those votes is presided over by the president of the Senate . . . which would be the sitting vice president (assuming one has been confirmed by then, otherwise it would be the president pro tem).

Four, if Trump died now, it is already too late to replace him on the ballot. State deadlines have passed, votes have been cast already.

Now, we get to the trickier situation. Let’s say that Trump died somewhere between now and the election, and the ballots still list Trump–Pence. What would Republicans do, and are there legal complications that would limit their options? The Washington Post’s Monkey Cage has an interview with Professor Richard Pildes, and Jason Harrow at Take Care has also looked into the question. Their analyses are complicated by the Supreme Court’s decision in July in Chiafalo v. Washington, which upheld laws binding electors to vote for the candidates they pledged to support, but specifically declined to decide this situation:

The Electors contend that elector discretion is needed to deal with the possibility that a future presidential candidate will die between Election Day and the Electoral College vote. We do not dismiss how much turmoil such an event could cause. In recognition of that fact, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. [Citing Indiana and California.] And we suspect that in such a case, States without a specific provision would also release electors from their pledge. Still, we note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.

As Harrow notes, state laws vary on what happens, so it may be difficult to generalize — which, in turn, would vastly complicate the Republican Party’s job in reassuring voters that a vote for a [Deceased Trump]–Pence ticket would, in fact, result in the legal election of a Republican president, and that the voters would know before the election who that is.

As Professor Pildes notes, both parties have party rules that permit them to substitute a new nominee. The RNC’s 168 members have a process to do that. If Republicans wanted to select someone other than Mike Pence, this would be fairly straightforward: The party announces a new nominee, and the electors vote for that nominee. Professor Pildes suggests that they would and should probably just ignore the faithless-elector laws, which have relatively mild penalties. It would be an extraordinary step for Congress to decline to count those.

But Pence, who would by then be the sitting president, is the obvious choice. The problem? He would have to withdraw as the vice-presidential candidate. Faithless-elector laws that could be ignored if the presidential nominee is dead might be more troublesome if the vice-presidential nominee is alive and well. Would Republicans instead pick a placeholder presidential nominee? And if some division on counting the electors means no candidate is selected, the House decides the election of the president, but the Senate decides the vice president. This would be the newly elected House and Senate sitting in January, and it is possible that they might come to different views. The 20th Amendment has some additional provisions, some leaving the question to Congressional statute, on how to handle situations where the House is choosing candidates and one of them has died:

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

A dead candidate could attract enough voter support to win: Former Missouri governor Mel Carnahan did it in 2000, winning a Senate election to oust incumbent John Ashcroft, after Carnahan died in an October 16 plane crash. Missouri voters knew that a vote for Carnahan would be a vote for his widow, Jean, to fill the seat. A presidential election is a different kettle of fish, however.

In any event, we can all hope that both Trump and Biden make it through January 20, 2021, for a traditional peaceful and orderly transfer of power. But if I was advising the Republican National Committee right now, or for that matter the Democrats, I’d have someone drawing up a plan for what happens just in case.

UPDATE: Election-law professor Rick Hasen likewise concludes that the death of a candidate between now and the election could be “a mess” without clear legal rules. Quin Hillyer argues that Congress should pass a clarifying statute: “In the event of the death or incapacity of a presidential candidate after any state has already printed its presidential election ballots, then any vote cast for that candidate in that state shall be deemed and counted as a vote for whomever his party’s governing body has chosen as a substitute or, if the party has not acted, then for that candidate’s vice presidential running mate.” Good luck getting bipartisan agreement on anything election-related right now, though.

Correction: This article originally described the resolution discarding votes for Greeley in 1872 as having passed both Houses. It has been corrected.


Bored Book


My two-year-old son loves to be read to, maybe even more than his sisters did at his age. “Read it again!” is one of his most common sentences. He likes books about dinosaurs, books about hippos, books about cars. . . . He’s not picky.

So I thought I would get him Ibram Kendi’s board book, Antiracist Baby. I would read it to him, record his reactions, and get a quick light column out of it. I might find a way to mention that I’ve found him making the “ok” sign once or twice a year ago, and figured the book might do him some good.

No such luck. I had gotten four words into the book last night — “Antiracist baby is bred, not born,” is the first sentence, with a drawing of a protest — when he pushed it away. “Don’t like it!” And with that, the column was dead, and we were back to Quiet Bunny.


Celebrating a Century of Radio

( BrAt_PiKaChU/Getty Images)

As 2020 becomes even more surreal, with the news of the president’s coronavirus diagnosis, any opportunity to get some relief from the daily battering is welcome. A few weeks ago, I wrote about the culmination of a four-year project of reliving World War II in real time, broadcast on Chicago’s Saturday afternoon old-time radio program, Those Were the Days.  A few commenters rightly lamented that I only publicized the effort as it was winding down.

To make amends for that late notice, here’s another chance to listen to radio history, as the same show, hosted by Steve Darnall on WDCB, celebrates radio’s centennial over the next weeks. The show’s website is here, and episodes are available online for two weeks in the station’s archive. Starting tomorrow, October 3, Those Were the Days will be rebroadcasting some of radio’s most historic and important shows to celebrate the medium’s 100th anniversary. Tomorrow, for example, Darnall will replay the most famous radio program of all time, Orson Welles’s 1938 War of the Worlds, along with President Franklin D. Roosevelt’s first fireside chat, from March 12, 1933.

It is hard to overstate radio’s impact on American society and history, both good and bad. It all began on November 2, 1920, when Pittsburgh’s KDKA went on the air as the first commercial radio station, a part of Westinghouse Electric’s competition with Radio Corporation of America (RCA), a subsidiary of General Electric. KDKA is still on the air in Pittsburgh, the only station to have a “K” designation east of the Mississippi, where all broadcast stations begin with “W.” Not being a radio historian, I have to say that Wikipedia’s page on KDKA was pretty informative for the casual reader.

From Pearl Harbor to JFK’s assassination, most Americans first heard breaking news (and many still do) on radio, while families gathered religiously every week to listen to radio’s comedies and dramas. Staples of American culture, from The Shadow to the Lone Ranger, began on radio. Without radio, there would have been no rock-n-roll revolution, no Elvis or Beatles, which transformed popular culture, or a few decades later, the talk-show format that transformed politics. Radio drove commercialization to new heights, helping create America’s modern consumer society. And for those who think that social satire began on television with Rowan and Martin’s Laugh-In, or even later with Saturday Night Live, listen to Bob and Ray or an episode of the Chamber Music Society of Lower Basin Street from the early 1940s to see just how cutting edge American comedy could be in an era often portrayed as mannered and milquetoast.

In coming weeks, Those Were the Days will broadcast many radio firsts, from the first episode of The Shadow (with Orson Welles as the title character) and King Edward VIII’s abdication (both on October 17), to the 1937 live broadcast of the Hindenburg disaster and the last episode of the long-running series Suspense, from 1962 (both on October 24). For those who are interested in a full episode guide, Darnall publishes a quarterly Nostalgia Digest, which in the current issue also includes an article on the highlights of radio history.

Those Were the Days itself has been around for half of radio’s history, being started in 1970 by Chuck Schaden, who is still active despite retiring a decade ago. Darnall keeps the show mercifully free from politics, making it even more welcome as an oasis against the relentless bad news that hits us every day.  As a living part of America’s story, radio continues to link and divide us. Listening to these famous broadcasts maybe helps to connect us with that history, and for that, we should thank Darnall and his team once again.


Campaign in Deep Freeze: Trump COVID Test Locks Down Race

President Trump exits the Oval Office as he departs on campaign travel in Washington, D.C., October 1, 2020. (Joshua Roberts/Reuters)

For a moment, it looked like America could play pretend that an almost-normal presidential race would occupy the final weeks of this election.

The incumbent and his challenger joined for a live television debate, marred by interruptions and shameful name-calling as it was. Joe Biden’s campaign reversed course and determined it would, in fact, start door-knocking (after insisting doing so in a pandemic would be dangerous and politically counter-productive).

Those are two things that normally happen in election-season democracy . . . right?

But the wee-hours news of President Trump’s positive coronavirus test has frozen the race in place. The president is postponing, for now, all his planned events – or taking them virtual.

See this statement from Trump campaign manager Bill Stepien:

“All previously announced campaign events involving the President’s participation are in the process of being moved to virtual events or are being temporarily postponed.  In addition, previously announced events involving members of the First Family are also being temporarily postponed. All other campaign events will be considered on a case-by-case basis and we will make any relevant announcements in the days ahead. Vice President Mike Pence, who has tested negative for COVID-19, plans on resuming his scheduled campaign events. Any further information about the President will come from the White House.”

A stunning, albeit medically expected, turn for a president who at first insisted on holding full-scale rallies and has since gotten into the groove of holding pep sessions next to airports and other such environs.

So . . .

What will happen to the debates?

What will happen to Supreme Court confirmation hearings that had promised to energize the respective bases?

How will Biden adjust his approach, if at all?

All these questions remain, of course, unanswered. And if we’ve learned anything about 2020, it’s been not to dare place bets.

As of Friday afternoon, Biden has tested negative. But by this twist of fate, his basement-lurking, presser-avoiding, canvass-shunning campaign is now the benchmark.

And once again, what we have is anything but normal.

Politics & Policy

Schumer Calls for Delay


Chuck Schumer has called for a delay in confirming Barrett because of the president’s COVID diagnosis. In other news, Schumer thinks the vote should be delayed because water is wet, because bears defecate in an arboreal setting, and because it is bad luck to confirm Republican nominees on days of the week ending in “y.”

National Security & Defense

Deter Our Adversaries, Now More Than Ever

President Trump delivers remarks to mark the 75th anniversary of the end of World War II in Wilmington, N.C., September 2, 2020. (Leah Millis/Reuters)

President Trump’s positive coronavirus test in the run up to November has sparked a lot of talk about the state of the race, in addition to consideration of a number of grim hypotheticals. Another angle to consider is the resulting threat to national security.

With the spotlight now on the scramble to test potentially infected White House staffers and members of Congress, U.S. adversaries might view an opening to take advantage of the chaos. In recent months, Beijing has stepped up belligerent activity pressuring Taiwan, as high-ranking members of the Trump administration have made visits there. Recent Iran-backed militia rocket attacks targeting the U.S. embassy in Baghdad have led Mike Pompeo to threaten to shutter the facility. And, as always, Russia’s meddling in Eastern Europe remains another hotspot to watch. Then there’s the issue of foreign election interference — this crisis could embolden the usual suspects. And, clearly, this is a non-exhaustive list of the world’s simmering crises.

The U.S. government will continue to function as this storm rages. But it’s crucial that this be made clear to the rest of the world, lest there be any doubt.

Marco Rubio has the right idea. He posted a warning to Twitter this afternoon: “Any adversary who views news of @POTUS testing positive as an opportunity to test the United States would be making a grave mistake.”

The president is working from the White House residence now and, thankfully, has only shown mild symptoms so far. It’s crucial that he broadcast his continued attention to the ongoing threats facing the country. This means, at the bare minimum, tweeting something to that effect. Hosting a video conference call with his top defense and national-security officials would be even better than that. (And they should also participate in a coordinated messaging push.) But for the purposes of projecting strength right now, a national address would go a long way toward providing assurance that the president remains at the wheel, prepared to deter any challenges to U.S. national security.


Trump’s Gender Gap


During Tuesday’s debate, the president and former vice president yammered, ego barged, and talked over one another. Clare Malone, of FiveThirtyEight, wrote that, “Chris Wallace now feels the pain of women in meetings.” Wallace, the Fox News moderator, accurately complained that Trump was doing most of the interrupting. It’s true that Trump doesn’t play well with female voters, if numbers are anything to go by. The Washington Post reports that:

Nationally, a Post-ABC poll released Sunday showed Biden leading Trump by 31 points among female likely voters and Trump leading Biden by 13 points among male likely voters. Trump’s lead among men is about the same as his final margin over Hillary Clinton in 2016, but Biden’s lead among women is more than twice as large as Clinton’s.


The EU Throws a Futile Temper Tantrum

At the EU Commission headquarters in Brussels, Belgium, in 2016. (Yves Herman/Reuters)

Earlier this week, the House of Commons in Westminster passed the Internal Markets Bill, a law that asserts British sovereignty over sovereign British territory. Fairly uncontroversial, right? Downright tautological, even. 

Not according to the European Union. As I wrote about here, the British government made an ill-advised decision last year to sign on to a very bad Withdrawal Agreement with the European Union. The text of this agreement allowed the EU to economically annex Northern Ireland, one of the four constituent nations of the United Kingdom, and to keep it under the European customs and regulation regime. The EU’s pretense for demanding Northern Ireland as their pound of flesh during Brexit negotiations was that a fluid and permeable border between Northern Ireland and the Republic is impossible otherwise. The consequent erection of border infrastructure would, we are told, risk a flare-up of the horrific violence that has ravaged the island of Ireland since the United Kingdom was partitioned in 1921. The contention that only European control of Northern Ireland is necessary for avoiding a hard border is false, as the EU itself has admitted. But it’s a politically useful story to tell in order to gain leverage over the U.K. during negotiations. 

Discovering that such a situation is in fact wholly unworkable for a fully independent and sovereign nation, the British government passed the Internal Markets Bill. As the U.K.’s Northern Ireland minister Brandon Lewis has admitted, the bill violates the Withdrawal Agreement by reclaiming British sovereignty over Northern Ireland. 

Needless to say, the EU is not pleased by this turn of events. They served Boris Johnson’s government with a “letter of formal notice” this week that could eventually lead to a case against the British government being brought at the European Court of Justice. According to Brussels, the U.K. has breached Article V of the Withdrawal Agreement, which obliges both parties to work together in good faith. Appealing once again to the tried-and-true “peace in Ireland canard,” they are attempting to characterize the British government’s actions as endangering the agreement that brought an end to violence in Northern Ireland. The EU Commission protested, “The EU does not accept the argument that the aim of the draft bill is to protect the Good Friday (Belfast) agreement. In fact, it is of the view that it does the opposite.”

Thankfully, the EU seems finally to be receiving diminishing returns from their relentless appeal to this manifest falsehood. The legal process on which they have just embarked against the U.K. would take years to reach resolution. Happily, the United Kingdom will have completely extricated itself from the legal order of the EU (including the jurisdiction of ECJ) by the end of this year. The threats issued this week are purely political in nature, made in the full knowledge by all parties that they cannot be carried out. I suppose that the purpose of all this bluster from the European perspective is to show the British that they “mean business,” but all it really demonstrates is how out of practice they are when it comes to treating countries on their own continent as diplomatic equals. The time is fast approaching when the EU will no longer be able to threaten and bully the U.K. into line with the prospect of sanctions legal action from within its own technocratic apparatus. These “legal actions” really amount to no more than a final, impotent temper tantrum thrown by the Commission in response to the approaching, ineluctable advent of British independence. 

Politics & Policy

No One Deserves to Get COVID-19


The only thing certain about Trump’s contracting COVID-19 is that our political discourse is about to become even more insufferable. But I don’t think suggesting that those who do get coronavirus did something to deserve their fate is a very smart play. This seems to be the tone of some of the Left’s reaction. Speaker Pelosi, for example, says Trump’s behavior during the pandemic “was a brazen invitation for something like this to happen.” Even if Pelosi is right — and considering Trump’s germaphobic tendencies, I’m not sure she is — thousands of health professionals, politicians, business owners, and parents compelled to work to keep their households afloat follow protocols and still get the virus despite their best efforts. And those who contract coronavirus are not handed anything close to a death sentence. Now that we’ve learned more about the disease, the vast majority — about 99 percent of those who get it — survive. It would be nice if the tone of the coverage reflected that reality.

White House

Melania Derangement Syndrome: Media Distort Leaked Phone Call

First Lady Melania Trump delivers remarks at the launch of her Be Best initiatives in the Rose Garden of the White House, May 7, 2018. (Kevin Lamarque/Reuters)

The other day I had a phone conversation with a close woman friend. I was upset about a local news story, and I swore, more than once. My friend was upset about the same thing and was sympathetic. As women friends do, she listened patiently as I worked through my feelings.

According to the New York Times, what I in fact had was “a profane rant.” 

That’s the Times headline on the secretly recorded phone call between Melania Trump and her “friend”: “In Profane Rant, Melania Trump Takes Aim at Migrant Children and Critics.” The media seem to think the phone call makes the first lady come off badly. Normal people hear that call and have two thoughts: (1) Melania is a normal person who has feelings, including anger, and opinions. (2) What kind of woman records a phone call and dishes it to the media to embarrass and hurt her friend?

The Times writes that the first lady “mocked the plight of migrant children who were separated from their parents at the border in 2018.” Again, no normal person who listens to the recording can come to that conclusion: “And they said, ‘Oh what about the children, that they were separated?’ Give me a f***ing break. Where they were saying anything when Obama did that?…I was trying to get the kid reunited with the mom. I didn’t have a chance. Needs to go through the process and through the law.”

She is exasperated about media distortions of her efforts to do something to help and their refusal to cover her, and the issue, fairly. That’s the “break” she wants them to give her. 

In her “rant,” Melania even takes what seems to me a feminist angle when she complains about spending her time on the White House Christmas decorations. She has no interest in that task, but because she’s a woman, she’s expected to fulfill her role. Aren’t we supposed to like it when strong women reject traditional gender roles?

At one point Melania says, about the liberal media, “They are crazy, OK?” 

Yes. Yes, they are.

National Review

Inside the October 19, 2020, Issue of National Review


The October 19, 2020, issue of National Review is typical — replete with well-written, well-considered pieces that . . . get you thinking. None more so than the cover story by Dan McLaughlin: “The Nation’s Capital Should Not Be a State”, which notes that among several reasons making this bald Democratic grab for additional Senate seats a bad idea is a thing called the Constitution. If you had the magazine in your hands (of course, if you have an NRPLUS subscription, you don’t have to wait for the mailman to bring the issue to your home — you can read it all right now) you could flip the page after finishing Dan’s piece to find another most-worthwhile essay, this by Ramesh Ponnuru and Robert P. George, which provides a deep and detailed consideration of the voting obligations of a Catholic as relates to the life issues.

We recommend all in the issue, but offer three more pieces for a goodly sampling of the fare: Madeleine Kearns’ essay on how modern feminists have made seduction indistinguishable from coercion, Reagan scholar Craig Shirley’s insightful essay reminding us of why the 1980 presidential election was so consequential, and Rong Xiaoqing’s powerful report on the uproar over leftist educrats tossing a Virginia high-school’s merit-based admissions standards — of course to the detriment of local Asian students.

You’ll want to read it all, of course. Alas: Some will find their hopes dashed by the paywall. But fret not: That is simply and easily and affordably scaled courtesy of NRPLUS.

Law & the Courts

Amy Coney Barrett Participated in a ‘Mock Court’ on the Obamacare Case


Reports the Los Angeles Times:

Just one week before the death of Justice Ruth Bader Ginsburg, whom she has been nominated to replace, Barrett participated in a mock court hearing on the pending case. She was part of an eight-judge panel that heard the mock arguments, conducted at William & Mary Law School. . . .

Five of the judges ruled that one part of the law — the so-called individual mandate, which Congress has already effectively nullified — was unconstitutional, but that the rest of the healthcare law could stay in place. The other three judges would have thrown out the case, arguing that the conservative states challenging the law did not have standing to bring the suit.

It’s not known which side Barrett was on because the participants’ votes were not revealed, according to a person who viewed the session and declined to be identified. . . .

During the mock session, Barrett asked skeptical questions about whether the government’s taxing authority still justified keeping the individual mandate. According to the recollections of the person who viewed the session, she asked several questions about its constitutionality.

So, every judge involved let the law stand, though their reasons varied.

The idea that confirming Barrett would kill the Affordable Care Act was always silly, and of course her “ruling” on a mock court  — which the article refers to as an “educational role-playing exercise[]” — doesn’t bind Barrett if she actually hears the case. But this really should put an end to the panic.

Politics & Policy

Rest Up, Mr. President


Word this morning that President Trump has “mild symptoms” from his coronavirus infection is a little unnerving. As noted in today’s Morning Jolt, the president has the best doctors, with access to the best technology and tools, and the most up-to-date research on treatment options. But no one wants to gamble with the health of the president — or anyone else around him.

If the president’s personality and instincts are what we’ve seen over the past years — decades? — he’ll be eager and itching to get back out on the trail as soon as possible. But there’s no second term of a Trump presidency if there’s no Trump; his health has to come first. If the president’s doctors urge him to rest and avoid travel, he ought to do it. One campaign trip here or one rally there probably won’t be the difference between victory and defeat. There are 32 days until the election, and 13 days until the next presidential debate. The country and the campaign can function with the president recuperating in the White House residence. The campaign ads will still run, the Trump campaign’s social-media and voter-contact efforts will continue, and the vast majority of Americans already know what they think of him and his record.

The president should take the necessary time to recuperate and come back when his body is ready —  both for himself and for Melania and the rest of his family. Yes, the campaign is extremely important, but so is the president’s health — both short-term and long-term.


Diversity Mania Has Infected the Hard Sciences


Can’t any field be left alone to function on the basis of ability?

To the zealots who are pushing the diversity agenda, no. They demand that “diversity” be the top goal even in the sciences, which are now expected to ensure equal “representation” of all groups.

In today’s Martin Center article, Professor John Staddon takes a dim view of this new offensive. He writes, “I have worked in academic science my entire life and I have never seen any sign of racism, systemic or otherwise. On the contrary, I have seen people go to considerable lengths to aid able minorities. Yet a petition entitled is circulating nationally complaining that: women and ‘people of color’ are under-represented in STEM (science, technology, engineering, math); that this is ‘systemic racism;’ and that the cure is to change science (although it isn’t put quite like that).”

The problem, of course, is that our institutions are suffused with “systemic racism.” They must be, because some groups are over-represented and others are under-represented. That cannot possibly be due to the choices individuals have made. It is due to the “system.”

According to the petition, “Everyone in academia must acknowledge the role that universities—faculty, staff, and students—play in perpetuating structural racism by subjecting students of color to unwelcoming academic cultures.”

To that, Staddon responds, “That passage is alarming for two reasons: Apparently, we ‘must acknowledge;’ we must admit our collective sin. This is the language not of science, but of the Middle Ages. And just what is meant by ‘unwelcoming academic cultures?’ Are science faculties mean to students of color? Not in my experience. Or are some subjects too difficult for unprepared students, many of whom are ‘of color?’”

Poor Professor Staddon.  He thinks that you should have evidence before making claims. The Woke crowd doesn’t need no stinkin’ evidence.

Referring to another recent attack by the diversity maniacs, Staddon concludes: “If there is discrimination in STEM, judged case-by-case and not million by million, it should be addressed. What should not be done is acquiesce to the dogma of diversity. Orchestras are now under pressure to adopt what in effect amounts to licensed racial discrimination by giving up blind auditions. Academic science should not follow them.”

Few of our political leaders and almost no academic leaders are willing to stand up against this absurd trend.


New York Is Not Ready for Election Prime Time

A poll worker labels a wrapped pallet of absentee ballots for shipment at the Wake County Board of Elections on the first day that the state started mailing them out in Raleigh, N.C., September 4, 2020. (Jonathan Drake/Reuters)

Like it or not, mail-in ballots are going to be a very big part of the 2020 election. Conspiracy theories to the contrary, there is every sign that the Postal Service will be ready to handle the volume, although the tight timeframes required to meet every state’s deadlines are why the USPS sent out a lot of warning letters telling states that it may simply be impossible to process mail in the compressed timeframes their laws allow.

New York, however, is not ready. Brace yourselves for a mess – one that is almost entirely in the hands of the Democratic officials who run New York at every level.

The latest fiasco is that New York City is re-sending 100,000 absentee ballots to Brooklyn voters – out of 140,000 sent so far to voters in the borough – due to envelopes with printing errors that listed an incorrect name or address. A Rochester vendor was blamed. Thus far, the Board of Elections has focused its response on trying to inform voters why they are receiving a second ballot, which leaves open the question of what happens if they send back both – perhaps having voted differently on two ballots. Some Board of Elections sources argue that the ballots are sufficiently ID-coded to avoid both being counted.

This was too much incompetence even for Mayor de Blasio: “It’s appalling,…I don’t know how many times we’re going to see the same thing happen at the Board of Elections and be surprised.” Governor Andrew Cuomo has tried to intervene to get the Board to re-send only the envelopes, not new ballots, leading to counter-charges from fellow Democrats that his proposal would “disenfranchise” voters who were stuck with only one ballot. A leading Brooklyn lawmaker has so lost faith in the mail-in system that he is publicly urging voters to show up in person:

“For the safety of your vote, better to vote in person,” Brooklyn Sen. Zellnor Myrie, who chairs the legislative body’s elections committee, said in an appearance on NY1 Wednesday night. Myrie said all but the most health-compromised New Yorkers should vote in person because election officials and the postal service are not prepared to handle the unprecedented onslaught of mail-in ballots for the Nov. 3 general election taking place during the coronavirus pandemic.

The New York Times has likewise editorialized against trusting the mail-in voting system:

Any New Yorker who is able to do so ought to vote early and in person. The news this week that the city’s Board of Elections sent defective absentee ballots to nearly 100,000 voters makes this need clear. The board has caused problems for years, from long lines at the polls to illegal voter purges. This week, tens of thousands of voters, mostly in Brooklyn, opened their absentee ballots to find someone else’s name printed on the envelope they are meant to mail back, making the ballots unusable.

This comes on the heels of the state’s June 23 primaries, in which the large mail-in vote broke the system. Some legislative districts didn’t even start counting ballots until a month after the election. The most notorious race was Suraj Patel’s primary challenge to incumbent Congresswoman Carolyn Maloney. It took six weeks to count the votes. Patel did not concede until August 27, complaining that one in five mail-in ballots had yet to be counted. Patel sued in federal court to get ballots counted that arrived without postmarks, so some of his complaints are really just sour grapes with how the law works, but “some of those uncounted ballots include duplicates and ballots sent to people who chose to vote in-person on election day, however. Thousands of voters in the district also reported receiving their ballots late, or never getting one at all.” Testimony from Patel’s lawsuit illustrated the disaster:

City officials were deluged. Eleven days before the election, “the Manhattan borough office had something like 30 or 40,000 pending applications for absentee ballots, and I was told that they could only process 5,000 per day,” testified Douglas Kellner, the co-chair of the New York State Board of Elections. “Basically my view is that they threw up their hands and said, ‘Well, there’s nothing more that we can do.’” As a result, many ballots were sent to voters late. Allen Tanko, a marketing manager with the U.S. Postal Service, said that one day before the voting, on June 22, the city Board of Elections dropped 34,359 items, presumably ballots, into the mail stream. Postal workers tried to expedite them, but some of these ballots were sent to New Yorkers temporarily out of state, who could not possibly have received them in time.

Prospects for November are not encouraging:

Officials for the state Board of Elections testified to the state Legislature this month that they expect many of the same problems that plagued the June primary to occur in the November general, which will see significantly higher turnout. With an estimated 5 million absentee ballots expected, the state BOE also said they would need another $50 million to process them all, on top of the $25 million generally needed to conduct a presidential election.

The state legislature rejected proposals for an online ballot-tracking system, such as is used in Florida. We’ve heard a lot of efforts, even from Joe Biden in Tuesday’s debate, to tell us that mail-in balloting is fine because it has worked for years in Oregon, Colorado, Utah, Washington, and Hawaii. But New York City alone has as many voters as four of those five states put together, and no experience doing this.

Democrats have spent much of the past two decades irresponsibly raising fears of mass suppression and disenfranchisement of voters and a variety of other conspiracy theories – Russians hacked the voting machines! – to cast doubt on the legitimacy of American elections. Donald Trump has taken up their game, recklessly telling the nation in Tuesday’s debate that we could have “a fraudulent election.” Trump may be spinning fantasies, but in the case of New York, voters are right to be alarmed.


The Never-Ending Denunciation Debate


There’s no doubt that Trump botched the exchange on white supremacy at the debate. David Harsanyi makes the point sharply here:

But Trump said he was willing to denounce white supremacy at the debate, clarified what he meant about the Proud Boys the day after the debate, and is on the record in the past denouncing white-supremacist groups. The media, still, is not willing to take “yes” for an answer, or to accept any denunciation.

An exchange at the White House press briefing over this got a lot of attention. It’s really hard to see how this can possibly be made into an unwillingness to denounce white supremacy, but that’s how it’s been interpreted:

Jack Tapper had a similar exchange with a Trump campaign spokesman, accusing him of refusing to denounce white supremacy, when he repeatedly cited Trump’s past denunciations of white supremacy and made his own denunciation of white supremacy.

This is just too good a narrative to check, or ever let go.

Law & the Courts

Barrett and That Pro-Life Ad

Judge Amy Coney Barrett looks on during a meeting with Senate Majority Whip John Thune (R-SD) at the Capitol in Washington, D.C., September 29, 2020. (Greg Nash/Pool via Reuters)

Yesterday, I reported that in 2006, more than a decade before she became a judge, Amy Barrett signed a statement declaring herself among those citizens of Michiana, Ind., who “oppose abortion on demand and support the right to life from fertilization to natural death.”

Follow-up reporting today has led multiple news outlets to report, incorrectly, that Barrett signed not only that statement, but adjacent ad copy declaring Roe v. Wade “barbaric” and urging its overturning.

Two leaders of Right to Life Michiana tell me that the organization, and its precursor St. Joseph County Right to Life, have run variants of this ad for years, annually. The statement given to signatories is roughly the same each year. The other text in the ad changes more frequently, and in some years only the brief statement and the list of signatories runs.

Jackie Appleman, executive director of the organization, tells me that potential signatories are given a form with the brief statement. They do not approve or generally even see any text attached to the statement until the ad runs: “They only see the page where the signatures are. They never see that second page with the other educational ad.”

Tom Gill, the chairman of the group’s board, confirms this account. “Those signatures really are completely separate from the rest of the content of the ad. No one is ever aware of what’s going to be on the educational page.”

Does it matter whether Barrett only affirmed a right to life and opposed abortion on demand, or also explicitly endorsed opposition to Roe and the desire for its overturning? Those who strongly believe the Supreme Court should keep abortion from being democratically regulated will be alarmed enough by the statement. In the interest of accuracy, though, it should be noted that Barrett did not sign any statement of explicit opposition to Roe.

Hence my comment yesterday that her signature doesn’t tell us anything new. We already knew that Barrett is pro-life.

Law & the Courts

Biden, Court-Packing, and Constitutional Norms

Democratic presidential nominee Joe Biden speaks during a campaign appearance in Pittsburgh, Pa., August 31, 2020. (Alan Freed/Reuters)

The other day, C-SPAN’s Howard Mortman flagged a clip from April 2005 in which then-Senator Joe Biden attacked FDR’s court-packing plan. That clip comes from a bigger speech defending the filibuster and attacking the “nuclear option.” There is some obvious element of partisan interest in Biden’s 2005 speech; seeking to give Democrats cover for the sustained filibustering of some of George W. Bush’s judicial nominees, Biden appealed to wider principles of limiting the power of the majority, the Senate as a deliberative body, and so forth. Sometimes, though, the appeal to principle can be the tribute partisan interest pays to constitutional hygiene.

Biden’s remarks — which he collaborated on with various constitutional law professors — reveal the following understanding: The standing Senate rules, the filibuster, and other prerogatives for individual senators greatly weaken the ability of partisan discipline to control the Senate. Unlike the House, in which the majority-party leadership has sweeping power, the Senate is much more diffuse. This makes it much harder for the Senate to be merely a partisan appendage of the White House when the presidency and the Senate are controlled by the same party. As 2005 Biden and other defenders of the standing Senate rules have argued, the procedural norms of the Senate play an important constitutional role in checking the presidency and ensuring the independence of the Senate.

The nuclear option, which is separate from the question of filibuster reform, undoes all that. It instead says that 51 votes can ignore Senate rules at whim. The whole architecture of the Senate — from committee assignments to the structure of floor debates — is premised on the assumption of consensus-based procedural norms and the Senate’s standing rules. Absolute rule by 51 votes risks, then, radically transforming the character of the Senate.

Biden also noted in 2005 that removing those procedural guardrails could in turn knock down other ones. Senate traditions of deliberation and consensus helped the chamber block Roosevelt’s court-packing plan. Perhaps even more than the nuclear option, court-packing would aggrandize the power of the presidency. The Senate Judiciary Committee’s blistering 1937 report on the court-packing plan found that such a scheme would risk “autocratic domination” and threaten the constitutional rule of law.

In light of the significant constitutional import of both these proposals, it’s striking that Biden now offers a variant of “no comment” when asked his opinion of them. President Trump generates justifiable controversy when he hedges about whether he’ll accept the results of the 2020 election, but something like court-packing also warrants a clear answer. Numerous Senate Democrats have also been evasive about their support for court-packing and the nuclear option.

In a constitutional republic such as the United States, the protection of constitutional norms is not only a matter of who sits in the Oval Office. It also involves the broader constitutional infrastructure. Since 2016, the Washington establishment that by and large opposes Donald Trump has wrapped itself in the banner of “democratic norms.” If it is serious about protecting those norms and not merely using them as factional talking points, it needs to demand clearer answers on some key constitutional issues and to attend to the bigger questions of institutional checks and balances.


Losing a Baby


The New York Times has an article today about model Chrissy Teigen and her husband John Legend, who revealed the heartbreaking news yesterday evening that they had lost their unborn son after pregnancy complications. “Driving home from the hospital with no baby. How can this be real,” Teigen tweeted.

Times writer Mike Ives went on to say:

Ms. Teigen, 34, joined a long list of celebrities who have broken a social taboo in recent years to speak out about pregnancy loss. Others include the former first lady Michelle Obama, the singers Beyoncé and Celine Dion, the actresses Brooke Shields and Kirstie Alley and the actors Hugh Jackman and James Van Der Beek.

Such disclosures have resonated with women across the United States, where pregnancy discrimination is widespread, and organizations that provide family-planning or abortion services are often targeted by conservative officials, and miscarriages are still largely spoken of in hushed tones. [Emphasis added.]

Ives seems to be referring here to Planned Parenthood, an odd framing given that his article is about lamenting the loss of human life involved in every miscarriage. Anyone not blinded by the orthodoxy of the abortion-rights movement knows that, far from silencing conversations about miscarriage, pro-life conservatives are among the strongest proponents of the idea that all human beings, including the unborn, have intrinsic dignity and worth.

To the extent that women who suffer miscarriages feel unable to talk about that experience, surely some of that discomfort is the fault of abortion advocates, who insist that unborn children are mere clumps of cells, part of the mother, or a parasite growing inside her. There is an obvious tension between this rhetoric and the human need to grieve the loss of human life involved in each miscarriage.

These types of public conversations about miscarriage highlight the incoherence of those who defend abortion. Consider, for instance, that Planned Parenthood, which performs more than 300,000 abortions each year, weighed in on the news that Teigen and Legend had lost their son, offering condolences on Twitter. It is the ultimate cognitive dissonance to lament the loss of one unborn child while also insisting that some unborn human beings are not human at all if they are unwanted by their parents, that their lives can be disregarded and discarded for any reason whatsoever. This unscientific, dehumanizing argument conflicts on the deepest level with the belief that something — someone — has been lost every time a woman suffers a miscarriage.

The pro-life worldview that decries abortion as a violation of every human being’s right to life is also most understanding of the deep suffering inflicted on a woman every time she experiences a miscarriage, on parents who lose an unborn child.

Teigen and Legend are right to mourn their son, and they deserve our compassion, as does every couple that loses a child. In drawing attention to their loss, Times should’ve left abortion politics out of it.


Breaking News from 786 A.D.


Azerbaijan recently launched the largest attack in nearly 30 years on the breakaway Armenian enclave of Karabagh. France’s President Macron has confirmed that Turkey, Azerbaijan’s ally and sponsor, has sent jihadist mercenaries from the factions it backs in Syria to fight in Karabagh, and there are reports of Libyan and Pakistani jihadists joining them in the fight against Christian Armenia.

Coincidentally, today the Armenian Church celebrates the feast day of the Saintly Princes Sahak and Hamazasp. They were martyred in 786 by the Arab governor of their region for refusing to convert to Islam. The Gospel reading for the day is John 16: 1-4, which not coincidentally includes the following:

Yea, the time cometh, that whosoever killeth you will think that he doeth God service. And these things will they do unto you, because they have not known the Father, nor me.

Those who want to contribute to civilian humanitarian assistance can do so via the Armenia Fund, a 501(c)(3) nonprofit with strict oversight and outside auditing.


Apparently, Campaign Volunteers Knocking on Doors Is Okay Now

Supporters wearing face masks look on as President Donald Trump holds a campaign rally in Londonderry, N.H., August 28, 2020. (Carlos Barria/Reuters)

This may shock you and run contrary to what you’ve gleaned from news reports and social media, but it turns out that the CDC’s recommendations on how to protect yourself from the coronavirus do not take a person’s partisan affiliations into account. Dr. Fauci and the government health experts say the microscopic SARS-C0V-2 virus doesn’t even check your voting record or campaign donation history before it infects you.

It turns out that if you wash your hands frequently, wear a mask, try to keep six feet or more apart from people outside your household, and clean and disinfect frequently touched surfaces, you’re probably going to be okay. And shockingly, it turns out that this is the recommendation whether you’re attending a Black Lives Matter protest or a Trump rally. Apparently, the same laws of virology, biology, epidemiology and physics are in effect no matter who or where you are, whether you’re at the beach, or at a football game, or walking through the park.

And if you take proper precautions, walking around a neighborhood and knocking on doors, encouraging people to vote for your candidate is not morally akin to mass murder. Go figure!

I share this because apparently the Trump campaign’s knocking on doors and the Biden campaign’s knocking on doors are perceived wildly differently.

Back on August 5,  Lily Adams of the DNC declared of the GOP’s door-knocking efforts, “the Trump campaign is risking the lives of their staff, the lives of voters, and risking becoming a super spreader organization during the middle of a pandemic. Sounds in line with how Trump is running the country.”

On September 13, Molly Ritner, the Biden campaign’s deputy states director, told reporters, “We think what voters are looking for right now is responsible leadership and that comes from the VP and what he’s saying, but it also comes from the campaign.”

On September 17, the New York Times informed us, “that guarded strategy reflects the bet Mr. Biden’s campaign has made for months: that American voters will reward a sober, responsible approach that mirrors the ways the pandemic has upended their own lives, and follows scientific guidance that Mr. Trump almost gleefully flouts.”

But now . . . Joe Biden’s campaign will start knocking on doors this week.

Wait, I thought door-knocking was “risking the lives of their staff, the lives of voters, and risking becoming a super spreader organization”? I thought “responsible leadership” meant not knocking on doors? I thought the “American voters will reward a sober, responsible approach”?

Never mind, apparently.

Regulatory Policy

New York’s Restaurant Disaster

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.


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

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


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.


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

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

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.