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Monday, September 26, 2016

Random thoughts on a Monday morning

Because none was worth its own post:

1) Having now watched the pilot of Designated Survivor, I still cannot decide whether to stay with it. As I said before, some of the exposition about succession and about Kirkman's position--designed to show his resolve and the Kal Penn character coming to believe in him--would never be uttered by anyone working in the White House. (Although I did like that the Penn-Kirkman conversation began through the wall of a bathroom stall, so Penn had no idea who he was talking to). Otherwise, the show looks like a story of 1) hero FBI agent who wasn't even supposed to be on the scene shows up, convinces boss to let her stay rather than to do what she is supposed to, and immediately starts ordering everyone around as if no one beside her had any clue about how to do an investigation and 2) evil deputy chief of staff and evil warmongering Chair of Joint Chiefs plot to seize power away from the only lawfully authorized executive (hint: That is more than "close to" treason). And neither of those types of shows interests me (your mileage may vary, obviously). I will watch again next week, but I am not sure how long I will stick around.

2) Sandy Levinson hypothesizes a 269-all tie (or faithless Republican electors worried about President Trump) producing Acting President Kaine, followed by Acting President Kaine being displaced by President Romney or Ryan soon thereafter. Of course, what Sandy describes is, in part, the last season of Veep, confirming my point that such events would produce a genuine constitutional and political crisis, not the calm, happy, celebratory (for everyone but Selina) inauguration the show depicts in the final episode. Sandy's further point is that it would fly in the face of any conception of how a rationally democratic electoral system should work.

3) I will not watch the debate this evening. I already know the outcome: Trump will be deemed to have "won" the debate because he "seemed Presidential" by standing behind a podium and speaking without behaving like a raving lunatic or explicitly calling for the arrest or assassination of his debate opponent (implicit calls will, of course, be fine). And that will be true even though the words spilling from his mouth will be 1) provably false (but unchallenged), 2) incoherent word salad betraying a complete lack of understanding beyond the simplest of ideas and slogans, and 3) provably false. Nothing Clinton can do--no matter her policy expertise and ability to debate ideas--will overcome media comments about her demeanor and appearance and the lowered expectations for Trump, under which he wins by looking a normal human being, regardless of what he actually says. And that will carry the "conventional wisdom" day.

4) I have shut-out all election news for the past few days (in particular, no peaking at poll forecasters). Count me among the anxious. I, as an unabashed Democrat, rooted for Trump to win the GOP primary because I believed he would be the easiest opponent to beat--I simply did not conceive of a world in which someone so obviously unqualified and ill-suited for high office could capture sufficient votes. What I did not realize until the past few weeks is that the institutional mechanisms for checking Trump's worst abuses--lies, media manipulations, inability to control himself, appeals to some subset of voters attracted to bigoted ideas and policies, economic ties to a frisky foreign rival, policies that are constitutionally suspect, lack of basic understanding, incompetence, and more lies about all of it--did not exist, at least not in the robust fashion I imagined. Either the press is not talking about it. Or, to the extent they are, no one who matters is listening. I do not know if it is possible to float through this as ignorant as possible and be surprised (one way or another) on November 9. But I may try.

5) To the extent anyone is talking about Merrick Garland anymore, the comment is often made that this would be the first time since 1968 the Court had a Democratic majority. But to the extent that is code for it being the first time since 1968 there has been a liberal majority, the two do not overlap. The 1968 Democratic majority was Black, Douglas, White, Fortas, and Marshall. But the liberal voting bloc was comprised of Warren and Brennan, not White, who was not a consistent judicial liberal on many issues The distinction matters and should be highlighted, because it illustrates the shift in who gets appointed to the Court by both parties. As has been the case since Sotomayor and Kagan replaced Souter and Stevens, judicial ideology perfectly aligns with party affiliation.

 

Posted by Howard Wasserman on September 26, 2016 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink

Comments

Any thoughts on AB-1687 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB1687

Looks like a content-based restriction on speech trying to pretend it is a consumer rights bill to me. But Ken White disagrees -- https://twitter.com/Popehat/status/780204361087524864 -- and he's actually done some 1st amendment litigation.

Posted by: brad | Sep 26, 2016 5:48:52 PM

On how and why exceeding debate expectations is actually an anti-indicator of electoral success, and not something you should be worried about:

http://election.princeton.edu/2016/09/25/three-reasons-to-ignore-debate-related-punditry/#more-17586

I also don't think the scenario you describe will necessarily happen. The sheer degree of Trump's ignorance on basic policy detail is staggering and fairly likely to produce at least one memorable moment.

"The 1968 Democratic majority was Black, Douglas, White, Fortas, and Marshall. But the liberal voting bloc was comprised of Warren and Brennan, not White, who was not a consistent judicial liberal on many issues"

I think I get what you're saying but you might want to edit to clarify that the bloc wasn't comprised of only Warren and Brennan, but included Douglas, Fortas and Marshall, with Black an edge case.

Posted by: Asher Steinberg | Sep 26, 2016 11:28:12 AM

#1 doesn't make me upset I missed the season premiere. The first woman pitching in the MLB one was pretty good. Sure there is some way to make that about law or this blog ... equal protection law or something.

#2 We worry a bit about Sandy Levinson over there but guess it's a balance on those not upset enough about what is happening.

#3 I find debates tiresome myself though catching some of one of Clinton/Sanders was of moderate interest. Find Talking Points Memo live blogging and Twitter useful. TPM can be replaced by the blog of a reader's choice. Trump will probably (as TPM notes) have some standard stock things to say but given he's Trump, there will be chances for wild card statements and him basically showing he doesn't know what he is talking about. This might matter a bit along the edges.

#4 I have seen some press coverage of various Trump horribles. It is rather depressing and troubling as a basic matter of our system of government & society itself that it looks like 40%+ will still vote for him. Of special concern is the fear that Gary Johnson (who is looking like a clown repeatedly lately ... again fwiw) will split enough Clinton voters to give Trump an edge. I do think Clinton would win but it looks like a football game where it's too darn close. And, if she wins close & the Democrats don't win the Senate, it will really be a depressing four years.

Posted by: Joe | Sep 26, 2016 10:08:39 AM

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