Senate Democrats say FBI ignored tips in Brett Kavanaugh investigation

Here at Daily Kos, we all suffered through Justice Brett Kavanaugh’s confirmation to the U.S. Supreme Court, recalling his indignant behavior while questioned, especially as juxtaposed with Dr. Christine Blasey Ford’s grace and clarity. We, too, likely recall that Donald Trump was relentless in pushing Kavanaugh's confirmation through. Recently, as Daily Kos covered, Michael Wolff revealed a conversation he supposedly had with Trump in his new book, Landslide: The Final Days of the Trump Presidency, in which Trump took credit for essentially “saving” Kavanaugh's life and expressed feeling disappointed in him in the end, saying he hasn’t had the “courage” to be a great justice.

This background lends an interesting light to a new report from The New York Times, in which fresh details on the FBI’s inquiry into Kavanaugh are causing serious—and legitimate—upset among some Senate Democrats. As covered by the Times, Jill Tyson, an assistant director at the FBI, wrote a letter to Democratic Sens. Sheldon Whitehouse and Chris Coons explaining that the most “relevant” of more than 4,000 tips the agency received while investigating Kavanaugh were actually passed on to White House lawyers in the Trump administration. It’s unclear how those tips were handled, and Senate Democrats want answers.

For background, the letter from Tyson was actually written in response to a letter sent by Whitehouse and Coons back in 2019, in which they wanted more clarity on how the supplemental background check into Kavanaugh actually went down. Tyson’s letter stressed that the agency did not conduct a criminal investigation, only a background check. To Democrats, the agency failed in its duty to fully investigate the allegations of sexual misconduct—from Ford as well as subsequent allegations from two women who accused him of sexual misconduct—during Kavanaugh’s confirmation process. Kavanaugh has denied all allegations.

On Wednesday, seven Democrats on the Senate Judiciary Committee replied to the letter asking for more information about how Trump’s White House handled the investigation and those thousand of tips. Democrats who signed on to the letter included Sens. Cory Booker, Dick Durbin, Richard Blumenthal, Patrick Leahy, Mazie Hirono, and, of course, Whitehouse and Coons. 

Whitehouse spoke to the Times in an interview about the letter. Whitehouse told the Times Tyson’s response suggested the agency ran a “fake tip line” with responses never being “properly reviewed,” adding he assumed it was not even done in “good faith.” 

In a letter the Democratic lawmakers sent on Wednesday, and which was released to the public on Thursday, they argued: “If the FBI was not authorized to or did not follow up on any of the tips that it received from the tip line, it is difficult to understand the point of having a tip line at all.”

As we know, neither Ford nor Kavanaugh were interviewed as part of the investigation. According to the Senate Judiciary Committee, the FBI ultimately interviewed just 10 people before closing its investigation. Democrats have long suggested the investigation into Kavanaugh was incomplete and politically contained. 

Voting Rights Roundup: The House’s new voting rights bill now curtails gerrymandering right away

Programming Note: The Voting Rights Roundup will be taking a break the week of March 13 but will return the following week.

Leading Off

Congress: On Wednesday, House Democrats voted 220-210 to once again pass H.R. 1, the “For the People Act,” the most important set of voting and election reforms since the historic Voting Rights Act was adopted in 1965. It also includes a major modification to provisions that would curtail gerrymandering, ensuring that they'll take effect right away. All Democrats except Mississippi Rep. Bennie Thompson voted for the bill, while all Republicans voted against it.

H.R. 1 would implement transformative changes to federal elections by (1) removing barriers to expanding access to voting and securing the integrity of the vote; (2) establishing public financing in House elections to level the playing field; and (3) banning congressional gerrymandering by requiring that every state create a nonpartisan redistricting commission subject to nonpartisan redistricting criteria.

These reforms, which House Democrats previously passed in 2019, face a challenging path in the Senate given Democrats’ narrow majority and uncertainty over whether they can overcome a GOP filibuster, but their adoption is critical for preserving American democracy amid unprecedented attack by Republican extremists both in and outside Congress. Senate Democrats have announced that they plan to hold hearings on the bill on March 24, and Majority Leader Chuck Schumer has committed to holding an eventual floor vote.

Using Congress’ power to regulate Senate and House elections under the Elections Clause and enforce anti-discrimination laws under the 14th Amendment, the bill would:

  • Require states to establish nonpartisan redistricting commissions for congressional redistricting;
  • Establish nonpartisan redistricting criteria such as a partisan fairness provision that courts can enforce starting immediately no matter what institution draws the maps;
  • Establish automatic voter registration at an array of state agencies;
  • Establish same-day voter registration;
  • Allow online voter registration;
  • Allow 16- and 17-year-olds to pre-register so they'll be on the rolls when they turn 18;
  • Allow state colleges and universities to serve as registration agencies;
  • Ban states from purging eligible voters' registration simply for infrequent voting;
  • Establish two weeks of in-person early voting, including availability on Sundays and outside of normal business hours;
  • Standardize hours within states for opening and closing polling places on Election Day, with exceptions to let cities set longer hours in municipal races;
  • Require paper ballots filled by hand or machines that use them as official records and let voters verify their choices;
  • Grant funds to states to upgrade their election security infrastructure;
  • Provide prepaid postage on mail ballots;
  • Allow voters to turn in their mail ballot in person if they choose;
  • Allow voters to track their absentee mail ballots;
  • End prison gerrymandering by counting prisoners at their last address (rather than where they're incarcerated) for the purposes of redistricting;
  • End felony disenfranchisement for those on parole, probation, or post-sentence, and require such citizens to be supplied with registration forms and informed their voting rights have been restored;
  • Provide public financing for House campaigns in the form of matching small donations at a six-for-one rate;
  • Expand campaign finance disclosure requirements to mitigate Citizens United;
  • Ban corporations from spending for campaign purposes unless the corporation has established a process for determining the political will of its shareholders; and
  • Make it a crime to mislead voters with the intention of preventing them from voting.

Importantly, the bill that won approval on the full floor on Wednesday contained critical amendments strengthening its anti-gerrymandering provisions. While the original version would not have required states to use independent commissions and nonpartisan redistricting criteria until 2030, the revised bill would implement them right away. And even if states don't have enough time to set up new commissions ahead of the 2022 elections, they would still be banned from drawing maps that unduly favor a party, which a court could then enforce.​

Campaign Action

​Ending Republicans’ ability to gerrymander is of the utmost importance after Republicans won the power to redistrict two-to-three times as many congressional districts as Democrats after the 2020 elections. If congressional Democrats don’t act, Republican dominance in redistricting may practically guarantee that Republicans retake the House in 2022 even if Democrats once again win more votes, an outcome that could lead to congressional Republicans more seriously trying to overturn a Democratic victory in the 2024 Electoral College vote than they did in January, when two-thirds of the House caucus voted to overturn Biden's election.

If this bill becomes law, Republicans would lose that unfettered power to rig the House playing field to their advantage. Instead, reform proponents would gain the ability to challenge unfair maps in court over illegal partisan discrimination, and the bill would eventually require states to create independent redistricting commissions that would take the process out of the hands of self-interested legislators entirely.

Protecting the right to vote is just as paramount when Republican lawmakers across the country have introduced hundreds of bills to adopt new voting restrictions by furthering the lies Donald Trump told about the election that led directly to January's insurrection at the Capitol. With Republican legislatures likely to pass many of these bills into law—and the Supreme Court's conservative partisans poised to further undermine existing protections for voting rights—congressional action is an absolute must to protect the ability of voters to cast their ballots.

The most important remaining hurdle, however, is the legislative filibuster: The fate of these reforms will depend on Senate Democrats either abolishing or curtailing it. Progressive activists have relaunched a movement to eliminate the filibuster entirely, while some experts have suggested that Democrats could carve out an exception for voting rights legislation. Either way, Democrats will need to address the filibuster in some fashion, since Senate Republicans have made it clear they will not provide the support necessary to reach a 60-vote supermajority to pass H.R. 1 into law.

Redistricting

Minnesota: A group of Minnesota citizens, including a veteran redistricting expert and a former state supreme court justice, filed a lawsuit in state court seeking to prevent Minnesota's current congressional and legislative districts from being used next year if state lawmakers are unable to pass new districts by Feb. 15. That outcome is likely given that Democrats hold the state House and governorship while Republicans hold the state Senate. Similarly divided governments have led the courts to intervene to draw new maps in each of the last five decades.

New Mexico: A committee in New Mexico's Democratic-run state Senate has unanimously passed a bill that would establish a bipartisan advisory redistricting commission to handle redistricting for Congress, the state legislature, the state Public Regulation Commission, and the state Public Education Commission. Democratic state House Speaker Brian Egolf endorsed the proposal after previously opposing a competing reform measure that passed unanimously in state House committee in early February.

The Senate bill would create a commission with seven members, with four chosen by the leadership of both parties in each of the state's two legislative chambers, two unaffiliated members selected by the state Ethics Commission, and a final seventh member named by the Ethics Commission who would be a retired appellate judge and would serve as commission chair. No more than three commissioners could be members of the same party, and anyone who is or has served as an officeholder, candidate, or lobbyist (or whose close family members have) in the two years prior to redistricting could not participate.

Commissioners would devise three proposals for each type of office and hold public hearings to discuss them. Districts would have to be drawn according to the following criteria: equal population; legislative districts cannot split precincts; adherence to the federal Voting Rights Act and its protections of voters of color; compactness; preservation of communities of interest and local government jurisdictions; and preservation of the cores of existing districts. The criteria apparently do not prohibit mapmakers from considering partisanship or incumbency.

Once commissioners have come up with three different proposals for each office and held public hearings, they would submit the maps to the legislature for approval by lawmakers. The bill doesn't mention any prohibition on lawmakers amending the proposed districts, meaning this reform measure could nevertheless result in legislators adopting gerrymandered districts.

South Dakota: Last month, the League of Women Voters and other good-government organizations announced a plan to put a constitutional amendment on the ballot next year that would establish an independent redistricting commission. Supporters would need to file just under 34,000 signatures, roughly 10% of the total vote for governor in the most recent election, by this November in order to get onto the ballot.

Since South Dakota only has a single statewide congressional district, the proposal would only affect legislative redistricting. The measure would create a nine-member commission chosen by the state Board of Elections with no more than three members belonging to the same party, though the proposal is vague on the specifics of the selection process.

Mapmakers would have to adhere to several criteria, which prioritize compactness, followed by preserving communities of interest and keeping counties and cities undivided to the extent practicable. Commissioners would be barred from considering partisanship or incumbency. While Republican lawmakers would still have the opportunity to draw new districts for the 2022 elections even if the amendment passes, the commission would sweep into action immediately, crafting new maps in 2023 for the 2024 elections and then in years ending in "1" every 10 years afterward.

Voting Access Expansions

Congress: House members are set to introduce a bill with bipartisan support that would make Puerto Rico a state following a referendum last November in which voters backed statehood by a 52-48 margin. The bill's 48 sponsors in the House are mostly Democrats but also include around a dozen Republicans, several of whom are from Florida, which is home to a large Puerto Rican population. However, even if the House passes the bill, it will face a challenging path to overcoming a likely filibuster by Senate Republicans, as only Florida Sens. Marco Rubio and Rick Scott are reportedly supporting the bill on the GOP side.

Delaware: Democratic state Rep. Bryan Shupe has announced he plans to introduce a bill later this month that would end Delaware's unusual system that requires voters to register twice: once for state and federal elections and separately for local races. This system regularly leads to situations where voters who are registered in state elections try to vote in their local elections only to find out on Election Day that they can't vote. Democrats hold both legislative chambers and the governor's office in Delaware.

Idaho: Idaho's Republican-run state Senate has unanimously passed a bill to set up a standardized process for requiring local election officials to contact voters and give them a chance to fix any errors with their absentee ballots such as a voter signature supposedly not matching the one on file.

Maryland: Maryland's Democratic-run state House has passed a bill to create a semi-permanent list that will automatically mail absentee ballots in all future elections to voters who opt in. A handful of other states have similar systems, though this proposal differs in that voters who don't vote in two consecutive election cycles would be removed from the list and have to reapply.

Meanwhile, state House Democrats passed a bill with some bipartisan support to strengthen voting access on college campuses, military bases, retirement homes, and other "large residential communities." Sites like these would be able to request an in-person voting location, and colleges would be required to establish voter registration efforts on campus and give students an excused absence to vote if needed. The bill would also let military service members register online using their identification smart cards issued by the Defense Department.

New Mexico: New Mexico's Democratic-run state House has unanimously passed a bill that aims to protect Native American voting access in a variety of ways. Among other provisions, the bill requires that every reservation or other Native community have an in-person polling place, which fills an important gap since many Native communities lack reliable postal service for mail voting and also have a large proportion of residents who lack a driver's license or access to other transportation options.

New York: Following its recent passage in the state Senate, a bill has been approved in committee by Assembly Democrats that would automatically restore voting rights to everyone who is not currently incarcerated, which would permanently end the disenfranchisement of parolees. Currently, many parolees are only able to vote because Democratic Gov. Andrew Cuomo issued an executive order two years ago to restore the rights of people on parole who were convicted of certain crimes, meaning their right to vote could be rescinded by a future governor unless this bill passes.

New Jersey: New Jersey's Democratic-run Assembly has passed a bill with bipartisan support to create an in-person early voting period after their counterparts in the state Senate passed similar legislation last week. The Assembly's bill would adopt 10 days of early voting for general elections starting in November, five days for presidential primaries, and three days for all other primaries and any municipal elections taking place in May. The measure would require each of New Jersey's 21 counties to establish between five and 10 early voting locations.

Utah: Utah's GOP-run legislature has unanimously passed a bill creating a system where voters can track the status of their mail ballots via email or text message. Utah is one of a handful of states that mails ballots to all active registered voters by default.

Virginia: Both chambers of Virginia's Democratic-run legislature have passed a constitutional amendment that would abolish felony disenfranchisement for everyone who is not currently incarcerated. Currently, state law imposes a lifetime ban on voting by anyone convicted of a felony, but that system has been curtailed because Democratic Gov. Ralph Northam and his Democratic predecessor issued executive orders to automatically restore voting rights upon completion of any prison, parole, or probation sentences. Those orders, however, could be rescinded by any future Republican governor.

To become law, legislators would have to pass this same amendment again after the 2021 elections before it would have to win approval in a November 2022 voter referendum. A separate amendment that would have abolished felony disenfranchisement entirely, including for people currently in prison, failed to advance before a key deadline.

Voter Suppression

Supreme Court: On Tuesday, the U.S. Supreme Court heard a case over two Arizona voting restrictions that could deal a crippling blow to what remains of the Voting Rights Act after the high court's conservatives gutted a key part of the law in 2013. Observers widely agreed that the court's conservative majority was leaning toward upholding the Republican-backed voting restrictions, but it was unclear from oral arguments just how gravely the court could undermine the standards used to enforce the Voting Rights Act.

This case involves two Arizona laws that the 9th Circuit Court of Appeals found had both the effect and intent of discriminating against Black, Latino, and Native American voters. If both findings are overturned, it may become impossible to challenge similar laws in the future.

Last year, the 9th Circuit blocked both measures: one that bars counting votes cast in the wrong precinct but in the right county, and another that limits who can turn in another person's absentee mail ballot on a voter's behalf.

Arizona had largely transitioned to mail voting even before the pandemic, but the 9th Circuit observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. That led some voters to ask others in their community to turn their completed ballots in, which Republicans have sought to deride as "ballot harvesting" in an attempt to delegitimize the practice. The invalidated law had limited who could handle another person's mail ballot to just close relatives, caregivers, or postal service workers.

The 9th Circuit's ruling also invalidated a separate provision prohibiting out-of-precinct voting, in which a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under the invalidated law, voters in such circumstances could only cast a provisional ballot, which were automatically rejected if it was later confirmed that the voter had indeed showed up at the wrong polling place.

This decision relied on Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory effect against racial minorities regardless of whether there was an intent to discriminate. The finding of a discriminatory effect is critical because it's often much more difficult if not impossible to prove that lawmakers acted with illicit intent, whereas statistical analysis can more readily prove that a law has a disparate negative impact on protected racial groups.

Consequently, it's this so-called "effects test" that is the key remaining plank of the Voting Rights Act following the Supreme Court's notorious 2013 decision in Shelby County v. Holder. Some legal observers remained optimistic that the worst may not come to pass, since Arizona Republicans' oral arguments did not touch on the constitutionality of the VRA's effects test. However, others have noted that even if the effects test isn't formally struck down, the Supreme Court could make it so difficult to comply with the requirements to prove discrimination that the VRA would nevertheless become meaningless.

In one revealing exchange, conservative Justice Amy Coney Barrett asked Republican attorney Michael Carvin why the state GOP was even party to this case. Carvin responded with an admission that the 9th Circuit decision striking down the two voting restrictions "puts us at a competitive disadvantage relative to Democrats" because "every extra vote they get ... hurts us."

Arizona: Republicans in the Arizona Senate have passed a bill that could purge roughly 200,000 voters from the state's "permanent" mail voting list, which is supposed to automatically mail a ballot in all future elections to participating voters and has proven very popular since its implementation. The bill would remove anyone who doesn't vote in two consecutive election cycles, even if they still remain eligible to vote. Republicans only hold a two-seat majority in both the state House and Senate, so they would need every member on board to overcome Democratic opposition.

In the state House, meanwhile, Republicans have passed a bill that would require people and groups who register more than 25 voters in a given year to themselves register with the state, mandating that they put unique identifying numbers on every registration form they submit. Voter advocacy groups have condemned this bill and warn that it could lead to registration forms being rejected.

Alabama: Alabama House Republicans have passed a bill that would ban local election officials from establishing curbside voting or setting up voting machines outside of polling places, which would make it harder for people with disabilities and limited mobility to cast their ballots.

Arkansas: Republican Gov. Asa Hutchinson has signed a bill into law that makes Arkansas' voter ID law much stricter, making it one of the first of many Republican-backed voting restrictions under consideration nationwide to become law following the 2020 elections. The bill removes the option for voters who lack an ID to vote by signing a sworn statement under penalty of perjury, instead mandating an ID in order to have one's vote counted.

Georgia: On Monday, state House Republicans passed a far-reaching bill to enact several new voting restrictions that would:

  • Require that voters provide the number on their driver's license, state ID, or a photocopy of their ID when requesting an absentee ballot and a photocopy of their ID when returning an absentee ballot;
  • Limit weekend early voting;
  • Restrict absentee ballot drop boxes to only the inside of early voting locations or county election offices, making them unavailable outside of regular business hours;
  • Set a minimum of one drop box per 200,000 registered voters (other states such as California require one drop box per 15,000 voters);
  • Shorten the runoff period in federal elections from nine weeks to four weeks, with the apparent intent of giving campaigns less time to mobilize voters (instant runoffs would be used for overseas civilian and military voters to avoid running afoul of federal law mandating that their ballots be sent out 45 days before an election);
  • Ban state officials from mailing unsolicited absentee ballot request forms to all voters after Republican Secretary of State Brad Raffensperger did so in the 2020 primary;
  • Disqualify ballots that were cast in the wrong precinct but in the right county, which currently may be counted as provisional ballots;
  • Limit mobile early voting buses to only emergency situations;
  • Bar counties from receiving private funding to help administer elections; and
  • Block officials from distributing food and drinks to voters waiting in line to vote.

Meanwhile, in the state Senate, Republicans passed a bill in committee to end no-excuse absentee voting for voters under age 65, who typically lean more Democratic than older voters. Late last month, Republicans in the full Senate also passed a bill that would give the state the power to take over local election boards that supposedly fail to meet certain standards, which Democrats condemned as a way to let Republicans usurp control over election boards in Democratic-leaning counties.

Montana: State House Republicans have passed a bill over Democratic objections that would bar anyone who isn't a family or household member, caregiver, or an "acquaintance" who is a registered voter in the same county from turning in another person's ballot, thereby preventing voter advocacy groups or political campaigns from organizing ballot collection efforts.

A previous Republican-backed law imposing similar restrictions was blocked in court last year for discriminating against Native American voters, who often live on remote rural reservations where mail service and transportation access are limited. This latest bill may therefore also face difficulty surviving a likely lawsuit.

New Hampshire: New Hampshire's Republican-run state Senate has passed a bill along party lines to add a voter ID requirement for requesting and casting absentee ballots, sending it to the state House, which is also controlled by the GOP. New Hampshire is one of several states where Republicans are considering extending voter ID requirements to absentee ballots after Democrats disproportionately voted by mail in the 2020 elections.

Wyoming: State House Republicans have passed a bill establishing a voter ID requirement, sending it to the state Senate, where Republicans are also likely to pass it.

Ballot Measures

Idaho: Idaho's Republican-run state Senate has passed a bill that would make it all but impossible for progressive initiatives to get on the ballot by requiring proponents to submit voter signatures equivalent to 6% of registered voters in each of the state's 35 legislative districts instead of 18, the current requirement.

The bill, which would take effect immediately, would disproportionately impact progressives because left-leaning voters are heavily concentrated in a handful of denser urban districts. Liberal organizers would therefore have to canvas in rural districts where receptive voters are few and far between. Conservatives, by contrast, would have an easier time canvassing for signatures in cities because, even if right-leaning voters represent a relatively small proportion of voters, they live in closer proximity to one another.

Republicans in Idaho have advanced similar restrictions on initiatives in recent years as a reaction to successful efforts by progressives to expand Medicaid and increase public education funding at the ballot box during the last decade. Fearing a lawsuit, GOP Gov. Brad Little vetoed a similar bill in 2019 but the Senate passed this most recent bill with a veto-proof majority.

South Dakota: South Dakota's Republican-run legislature voted this week to put a constitutional amendment on the June 2022 primary ballot that would institute a 60% supermajority requirement for ballot initiatives that raise taxes or spend more than $10 million in public funds within a five-year period. The amendment would not, however, require a supermajority to cut taxes or spending. Democratic legislators blasted Republicans for trying to manipulate the election to their advantage by placing the amendment on the primary ballot instead of sending it before voters in the general election, noting that turnout in the 2020 primary was just one-third as high as it was last November.

Republicans have repeatedly tried to enact restrictions on ballot initiatives in recent years after voters approved an initiative in 2016 that would have placed strict limits on lobbying, created an independent ethics commission, and implemented a public campaign finance system that would have given each voter a voucher to donate to their preferred candidates.

In 2017, Republicans resorted to declaring an actual state of emergency to enable the legislature to immediately repeal the voter-approved ethics law and make it immune to a veto referendum, meaning supporters of the reform needed double the signatures to put a constitutional amendment on the ballot to restore the measure. Although they did just that in 2018, then-Republican Attorney General Marty Jackley gave the new amendment a ballot summary that said it would "likely be challenged on constitutional grounds," and voters rejected the second ethics commission amendment 55-45.

Electoral System Reform

Burlington, VT: Voters in Vermont's largest city of Burlington voted by 64-36 margin to approve a ballot measure that will adopt instant-runoff voting in City Council elections starting next year. This vote comes just over a decade after Burlington voters narrowly repealed instant-runoff voting for mayoral elections after it had been used to elect the mayor in 2006 and 2009. Before it can take effect, though, it must be approved by the Democratic-run legislature and Republican Gov. Phil Scott.

Senate Elections

Kentucky: Republican state senators have passed a bill that would require the governor to fill any future U.S. Senate vacancies with an appointee from the same party as the departing senator.

Currently, Kentucky's governor is Democrat Andy Beshear while both of its senators are Republicans, meaning this bill would prevent Beshear from replacing either McConnell or fellow Sen. Rand Paul with a Democrat if either were to leave office. Republicans easily hold enough seats to override a potential veto by Beshear. The bill would allow the party committee of the departing lawmaker to send a list of three names to the governor, who would be required to pick a replacement from that list.

Ever since Beshear's narrow 2019 win, Kentucky Republicans have advanced a series of moves to strip him of his executive power, and this proposal is part of the same partisan effort to constrain Beshear's authority. However, despite the GOP's self-interested motives, the proposed system is already used in many states for legislative vacancies and a handful of states for Senate vacancies and better ensures the will of voters is respected.

We can’t fix our democracy without understanding the roots of its problems

The House has just impeached Donald Trump for the second time following a violent insurrection by his supporters that endangered the lives of Vice President Mike Pence and members of Congress. Trump got into the White House to begin with despite losing the popular vote in 2016, but went on to pack the federal courts with lifetime judges, including appointing one in three Supreme Court justices. The recent Republican Senate majority, which refused to rein in Trump’s abuses after his first impeachment, was elected with 20 million fewer votes than the Democratic minority.

You don’t have to look far or hard for evidence of the flaws in U.S. democracy. But in thinking about how to fix it, it’s helpful to have a framework for understanding what’s going on here—the roots of the problems and how deep they go. Political scientist Douglas Amy offers a start on that with Second Rate Democracy, a website laying out 17 ways the U.S. lags behind other major western countries on democracy.

In the introduction, Amy notes that:

  • Besides Denmark, no other advanced democracy follows the U.S. example and appoints Supreme Court justices for life – all now have mandatory term limits or age limits for justices.
  • None use an Electoral College that allows a minority of voters to choose its chief executive.
  • Most use different voting systems that make gerrymandering impossible and create more representative multi-party legislatures.
  • None have anything like our misrepresentative Senate that gives the 40 million voters in the 22 smallest states forty-four seats, while giving 40 million Californians two seats.
  • Nearly all have rejected our conflict-prone separation-of-powers model of government and have chosen instead a more cooperative parliamentary system that avoids the legislative gridlock that plagues our government.
  • And all rely much more on public money, not private money from rich organizations and individuals, to fund their election campaigns.

Amy offers a framework for assessing the health of democracies, from majority rule and fair representation to the rule of law, political equality, and public participation. To fix the problem, we need to understand the problem. This is one resource for doing so.

Federalist Society quiet on bigwig member who spoke at insurrection, told Pence to overturn election

More than 200 judges have been embedded in the federal judiciary by outgoing Senate Majority Leader Mitch McConnell and Donald Trump. The huge majority of those judges come from the Federalist Society, the right-wing dark money association that has been working for years to erode civil rights, end abortion, oppose LGBTQ equality, stop gun safety laws, and fight regulations protecting the environment, health care, and worker safety—aka everything achieved in roughly half a century of progress. They are responsible for the current makeup of the Supreme Court and most of the Republican Senate. And they also have at least partial responsibility for the insurrection that happened at the U.S. Capitol on Jan. 6.

John Eastman, until this week the chairman of the Federalist Society's Federalism & Separation of Powers practice group, spoke at the pre-insurrection rally. "Anybody that is not willing to stand up and [vote to overturn the election] does not deserve to be in the office!" Eastman told the crowd. Standing next to Rudy Giuliani at the rally, he broke into a smile when Rudy incited the crowd with "Let's have trial by combat!"

Those linked tweets are from Slate's Mark Joseph Stern, who highlighted Eastman's role in pushing Trump's various plots to overturn the election: "As the president's actual attorneys backed away from his coup, Eastman rushed in to fill the void, attempting to bolster the scheme with incoherent legal theories," Stern writes. "When Texas Attorney General Ken Paxton urged the Supreme Court to overturn the election by nullifying millions of votes, it was Eastman who intervened on Trump's behalf to endorse Paxton's suit."

Worse, Eastman was in the Oval Office on Jan. 5 telling Trump—and Vice President Mike Pence—that Pence could legally toss out the real, certified electoral votes and throw the election to Trump. Because of his participation in the coup attempt, he's been tossed from the Chapman University School of Law, where he was a law professor and onetime dean. He's officially "retired"—at age 60, in the middle of the school year. But sure, retired. Eastman has been a visiting scholar at the University of Colorado Boulder, where calls for his dismissal have so far resulted in cancellation of two courses he was going to teach this spring.

As of now, the Federalist Society has not thrown out Eastman. Never mind that his name has been floated as one of Trump's impeachment lawyers, which would be kind of awkward. In what can only be considered an effort to save face—and its ability to someday again be able to shape the federal judiciary—one of the group's co-founders is calling Trump "a danger to the nation" who must be convicted by the Senate.

But the Federalist Society, which has supplied 85% of Trump's judges, has made no comment on Eastman, who is an insurrectionist. That's a problem for the organization. It's a much larger problem for the nation. Expanding the courts to dilute the influence of these judges is going to have to be a high priority for President-elect Joe Biden and the Democratic Senate.

Add ‘Can Donald Trump pardon himself?’ to the list of questions Amy Coney Barrett refuses to answer

Amy Coney Barrett went out on a limb far enough to agree with Sen. Patrick Leahy that “no person is above the law.” But agreeing that a president should not and cannot pardon himself was a bridge too far for her. Barrett fell back on her tried and true excuse that she can’t offer any view on any legal issue unless she has gone through the full process of deciding litigation on it.

This is, of course, not a hypothetical question. “President Trump claims he has an absolute right to pardon himself. Now, for 200 years the Supreme Court has recognized the common law principle that no one can be a judge in their own case,” Leahy said. That being the case, “would you agree, first, that nobody is above the law, not the president, not you, not me?”

“I agree, no one is above the law,” Barrett replied. Wow, bold stance! If only we could believe that she really believes it.

“Does a president have an absolute right to pardon himself for a crime? I mean, we heard this question after President Nixon’s impeachment,” Leahy followed up.

“Sen. Leahy, so far as I know, that question has never been litigated, that question has never arisen,” Barrett answered. “That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is, so because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view.”

“But you are willing to say that no person, not you, not me, is above the law,” Leahy pointed out. “I find your answer somewhat incompatible, but those are your answers, you have the right to say what you want.”

The bottom line is this: Barrett refused to say that Donald Trump can’t pardon himself for his crimes. She refused to even repeat the basic principle that no one can be a judge in their own case as part of her nonanswer. She said “no one is above the law,” but she gave no indication she actually believes that.

Democrats, don’t let RBG’s seat—or the Supreme Court—be further soiled by Trump

Honestly, there isn't much that Senate Democrats can do to fully prevent a Republican majority, slim though it may be, from seating another Supreme Court nominee from Donald Trump, illegitimate as that nomination might be. What they can do, however, is delay it until after the election. And after the election, the chances of blocking it are probably better. There could very well be some defeated Republicans who won't have anything to lose anymore and might just decide not to seal their legacies with something so ignoble as this. Additionally, if they can delay throughout November, Democrats will likely have a new member—Arizona's Mark Kelly, who could be seated as early as Nov. 30 by Arizona law.

To that end, congressional procedural experts have drawn up a memo that's reportedly circulating on Capitol Hill that details the myriad options available to Democrats—both in the House and Senate—to eat up Senate time and prevent Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Lindsey Graham from rushing the nomination through before Nov. 3. There's no silver bullet here for Democrats to stop the confirmation, but there are tons of BBs.

We talked about a lot of what the Senate can do in this post, but didn't explore the House's options. Like sending over articles of impeachment. (I nominate Attorney General Barr for that one, personally.) The House could act on Senate bills pending in the House, amend them, and send them back as privileged—the Senate could be forced to act on them.

In a perfect world, Sen. Chuck Schumer and team would deploy all of them. As of now, they are not. As of now, with no official appointment, they don't have to. McConnell is going to have to deal with the continuing resolution the House just passed to fund government through Dec. 11 early next week, because the deadline is midnight Wednesday.

Republicans are not devoid of ways of trying to keep Democrats from doing this—they can keep putting up things for unanimous consent, like this resolution expressing support for the Pledge of Allegiance. Now, what Democrats could do is use every tactic from Republicans to engage the Republicans in hours of debate on them. That's something they need to be doing anyway: standing on the floor punching holes in Republican arguments and making them answer for their blind loyalty to Trump.

Democrats can start doing these things now to show McConnell their resolve to stand together in making his life hell, dissuading him from trying to push through the nomination before the election. They can use a wide variety of procedural tactics to force Republicans who need to be spending all their time on their reelection at home to stay in Washington, D.C., having to be subject to a call to come to the chamber at any given time. Sowing as much unrest as possible among those Republicans is always helpful.

It's about meeting McConnell's fire with fire; it's about not being steamrolled, and not letting him and Trump further foul the Supreme Court of the United States.

Romney makes up new ‘precedent’ to say he’ll vote on a Trump Supreme Court nominee

Sen. Willard Mitt Romney, the Republican from Utah who broke ranks with Republicans to vote to convict Donald Trump on one of the articles of impeachment, abuse of power, has snapped back into line when it matters most: a Trump Supreme Court nominee. He says his decision isn’t based on “a subjective test of ‘fairness’ which, like beauty, is in the eye of the beholder,” but on “the Constitution and precedent.” And then makes up some real bullshit on precedent: "The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own." Except for when a Democratic Senate confirmed Ronald Reagan’s nominee, Anthony Kennedy, in 1988. 

“The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own,” he says. Historical precedent set by Mitch McConnell in 2016 in order to steal a Supreme Court seat from President Barack Obama. Maybe in the future we’ll have to call it the Romney Doctrine, just to cement for history how pathetic he is. 

This means McConnell has the votes. He doesn’t know (supposedly) the nominee yet, but he’s got the votes. It’s worth noting that he’s been sitting on the HEROES Act coronavirus relief bill for four months without acting, but will try to push a Supreme Court nominee in five weeks. It means that Sen. Susan Collins now has permission from McConnell to vote against the nominee, if she thinks that will save her pathetic political skin, because he doesn’t need her vote. It will be too little, too late for Collins, but that’s what will happen. 

It's about saving the country. Simple as that. Donate now to help bring it back to the White House and Senate.

It’s propaganda, not hypocrisy: Republicans use lying as primary governing technique

There is no point in accusing Republican senators of hypocrisy. Absolutely none. Only hours after the death of Supreme Court icon Ruth Bader Ginsburg, Republicans—who had previously gnashed their teeth at the audacity of the suggestion that the nation's first nonwhite president had the constitutional power to make nominations to the court at any point during the final year of his term—began declaring that this time around, obviously that new rule no longer applies. And obviously the president of their own party, impeached and transparently corrupt, must be granted a scrambling court even as voters line up to cast early ballots.

Hypocrisy implies there’s a previous ideology being upset; there wasn't one, and isn't one, and no serious politics-watcher ever thought otherwise. The principle being upheld by Sen. Mitch McConnell and clan then and now was more simple: Retain power using all available tools, and deny the opposition power using all available tools. There is no "ideology" inside the modern conservative movement, either before Trump's arrival or afterwards, that can survive its first brush with expediency. Each argument lasts only as long as the soundbites require and will be replaced with a new one immediately, without hesitation, when required.

Expediency as ideology is not a senate-only device. Former Supreme Court Justice Antonin Scalia practiced it with aplomb, often resulting in lawyers and courts using his past words against him in new cases—a futile gesture. Of his "originalist," "textualist," or "institutionalist" allies, the same approach is used by All Of Them.

It's not hypocrisy if the principle all along was "whatever best increases power." And it is irrelevant if it is.

The relevant part is that it is accomplished by lying. The practitioners claim some bold new notion of how the world should work, and it is an absolute, baldfaced, bullshit-laden public lie. Those who watch McConnell or Sen. Lindsey Graham in their public appearances can easily identify, at this point, the schtick that makes up their entire persona.

They look the American public in the eye, and they simply lie to them.

“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination." pic.twitter.com/quD1K5j9pz

— Vanita Gupta (@vanitaguptaCR) September 19, 2020

It was a lie from the moment he uttered it, and there was not a person in the room who didn’t know it from the outset. The movement is devoted to lying as governing principle. It works because there are countless channels through which those lies can be disseminated, and amplified, and praised. It will continue for as long as it works.

Over and over. About everything, all the time. The Moscow Turtle has never cried a sincere tear in his life, but according to him all Democratic actions are Devastation, all Republican actions are Sorrowfully Required Due To Democratic Existence, and the rest is puppet show. Graham is superb at being outraged in showy defense of the outrageous. Sen. Marco Rubio's usual deployed device is to respond to each act of corruption or depravity with a Bible verse, typically as non sequitur, and wiping his hands of the rest of it. Sen. Susan Collins is forever concerned by gross incompetence or criminality within her movement, and remains equally as concerned the next time around, and will make good on that "concern" exactly zero times as she votes to enable each concerning act one-by-one-by-one.

It's not hypocrisy. They're just liars. Conservatism is a movement of fictions, a series of nonsense falsehoods deployed like a squid ejects ink. Nobody asks the squid whether it stands by the cloud ejaculated in the last crisis. It would be pointless. The squid doesn't remember, and can't tell you.

It is not that the nation is run by a movement of "hypocrites." The nation is run by a collection of liars.

Propagandists.

Those who issue false statements and make false claims relentlessly in order to deceive the public, or to stir their base into new heights of feverishness, or—and this is rather more to the point in this particular year—to justify and endorse criminality in service to the movement. Incompetence, if in service to the movement. A quarter million deaths, if in service to the movement.

The lies are consequential. McConnell and his allies lied their way through the impeachment of a president, simply insisting that the evidence was not evidence and the testimony not testimony. The movement has lied its way through a pandemic, turning even the most rote of pandemic safety precautions—masks, even—into conspiracies and partisan litmus tests.

When Michael Caputo and his aides insisted that children were nearly immune to the virus and could not spread it, it was not ideology. It was a lie meant to keep more of the "economy" open even if the more pertinent metric—deaths—was multiplied.

When the movement claims "antifa"—a group that does not actually exist—is behind police reform protests, it is a lie. It is propaganda intended purely to discredit protestors, and better facilitate state and militia violence against them.

When Sen. Ron Johnson pipelines the work of known Russian operatives into his committee to declare that he has discovered very serious doings, doings that suggest his opponents are secretly corrupt in ways no American law enforcement has ever been able to find, he is fully aware of his own actions. He is not stupid.

When Attorney General William Barr releases a document that grossly undermines a report on Russian election interference that benefited his party, and follows up by launching conspiracy after conspiracy all premised on the notion that it is American law enforcement that is corrupt for going after Republican targets, he is lying to the public for the sake of the party.

The movement of Republicanism is propagandistic in nature. Lies are deployed towards political ends. All involved know they are lies. All involved spread the lies willingly. Fox News exists as propaganda factory. Donald Trump exists as propaganda factory. McConnell exists as propaganda factory. The sitting attorney general, the president's odd private lawyer—the only through line is relentless lying to the public about everything, all the time, for power.

There's no textualist in conservatism. Nonsense about precedents and institutions is barely even given lip service. There are no "deficit hawks," or "small government" idealism. None of those things have survived. The only takeaway from White House press briefings is a single, fundamental point: These are today's lies. If you don't like them, there will be others tomorrow.

There is a word for all of this. Declaring that your leaders are allowed to commit crimes while demanding the arrest of enemies on false charges; the rejection of facts and the explicit declaration that the free press is an enemy of the people for presenting information that conflicts with the state's own preferred interpretations; the altering and realtering of supposed norms so that the opposition is, invariably, declared to be out of control in their requests, so out of control that it is now necessary to alter the rules of government to properly constrain them:

It is authoritarianism. The party is a propaganda movement devoted only to self-preservation. There is not a stitch of prior ideological principle that will survive from 2016 to 2020—or from 2018 on a Monday to 2018 on a Tuesday. The rules are whatever they need to be to suppress the movement's perceived enemies. Not merely for a desperately needed Supreme Court seat, but for the now-existential election and all its myriad details.

Pelosi doesn’t rule out new impeachment inquiries to block Trump’s Supreme Court nominee

Appearing on ABC’s This Week on Sunday morning, House Speaker Nancy Pelosi honored the late Justice Ruth Bader Ginsburg by aptly describing her as a “brilliant brain” on the Supreme Court, reminded people that it’s absolutely imperative to get out and vote this November, and the ongoing importance of battling the novel coronavirus pandemic. On the subject of the vacant Supreme Court seat, the Democrat from California didn’t rule out launching an impeachment inquiry of Donald Trump (for the second time) or Attorney General Bill Barr, which would delay the Senate’s ability to confirm a Supreme Court nominee of Trump’s, either. 

When host George Stephanopoulos hypothesized a major concern of progressives—that even if former vice president Joe Biden wins the election, Republicans and the White House might try to push through a nominee anyway in a lame-duck session—Pelosi replied: "We have our options.” The speaker continued, “We have arrows in our quiver that I'm not about to discuss right now but the fact is we have a big challenge in our country. This president has threatened to not even accept the results of the election.”

She stressed that the “main goal” is ultimately to “protect the integrity of the election as we protect the people from the coronavirus." The speaker noted that she believed the late Ginsburg would want that same goal. Pelosi also clarified that “None of us has any interest in shutting down the government,” saying it would be too harmful to so many people in the nation.

“When people say, what can I do? You can vote,” the speaker stressed. “You can get out the vote, and you can do so as soon as possible.” She added that the same day we lost Ginsburg, ten states started early voting.

Stephanopoulos circled back to a potential impeachment inquiry and asked if the House would “rule anything out.” Pelosi drove home the basic tenant of public service: responsibility to the people. 

"We have a responsibility,” she stated. “We take an oath to protect and defend the constitution of the United States." (If only Trump saw it that way.) Pelosi continued: “We have a responsibility to meet the needs of the American people. When we weigh the equities of protecting our democracy, requires us to use every arrow in our quiver.”

Here is that clip.

“We have our options. We have arrows in our quiver that I’m not about to discuss right now,” Speaker Pelosi tells @GStephanopoulos when pressed on what Democrats would do if Pres. Trump and Republicans push a SCOTUS nomination ahead of the Nov. 3 election. https://t.co/JhU93KY3iQ pic.twitter.com/HOmI8AxREN

— This Week (@ThisWeekABC) September 20, 2020

Lastly, Stephanopoulos asked about another big topic among progressives: expanding the court. To that, Pelosi said, “Well, let's just win the election,” adding that she hopes the president will “see the light.” The speaker then used her final talking time to home in on the importance of the Affordable Care Act, and how much the average American has at stake in this election cycle. 

David Frum: Don’t assume McConnell has the votes to confirm

Last night and this morning, I felt like crawling into a hole for the next 40 days or so. And not a deep hole. I didn’t have the energy or joie de vivre for a deep hole. It would have been a shallow hole. Barely a hole at all. Really, I would have just lay down in the dirt until my DNA fused to the worms’ and slugs’ and grasses’ much more upbeat genetic material.

But I’m a more resilient guy ever since I got into therapy and on antidepressants (I recommend both if you’re struggling). And this morning a friend sent me this Atlantic story from former George W. Bush speechwriter and confirmed NeverTrumper David Frum.

He makes some excellent points (one of them being, don't swallow your tongue in abject, pants-shitting fear just yet):

What McConnell did in 2016 was an assertion of brute power, and what he proposes in 2020 is another assertion of brute power. And so the question arises: Does McConnell in fact have the power he asserts?

The answer may be no, for four reasons.

Do tell, David Frum:

The polls do not favor Susan Collins, Cory Gardner, or Thom Tillis—senators from Maine, Colorado, and North Carolina up for reelection this cycle. Yet these competitors may not be ready to attend their own funerals. They may regard voting against McConnell's Court grab as a heaven-sent chance to prove their independence from an unpopular president—and to thereby save their own seats.

Lisa Murkowski of Alaska has also made skeptical noises, and even Lindsey Graham of South Carolina may flinch. He faces an unexpectedly tough race this year, and he is extra-emphatically on the record vowing not to support a Supreme Court confirmation vote in the later part of a presidential year.

Frum also asks if Trump can find a woman nominee (Trump almost needs to nominate a woman to replace the legendary RBG, lest his female support erode even further) at the 11th hour who will be viewed as moderate enough by the senators who could be thinking of defecting.

Any last-minute Trump nominee will face a gantlet of opposition in the Senate, a firestorm of opposition in the country, and probably a lifetime of suspicion from the majority of the country.

Can McConnell and Trump find an appointee willing to risk all that for the chance—but not the guarantee—of a Supreme Court seat? Specifically, can they find a woman willing to do it? The optics of replacing Ginsburg with a man may be too ugly even for the Trump administration. And if they can find a woman, can they find a woman sufficiently moderate-seeming to provide cover to anxious senators? The task may prove harder than immediately assumed.

In addition, Yertle the Asshole’s hypocrisy on this issue is so egregiously off the charts it might create a mutually assured destruction scenario in which Democrats (assuming Biden wins and Dems retake the Senate) feel justified in packing the court by, say, adding two more justices.

But a last-minute overreach by McConnell could seem so illegitimate to Democrats as to justify radical countermoves should they win in November: increasing the number of appellate judges and Supreme Court justices; conceivably even opening impeachment hearings against Justice Brett Kavanaugh.

McConnell may want the win badly enough to dismiss those risks. But many conservative-leaning lawyers in the country may be more cautious. And their voices will get a hearing in a contentious nomination fight—not only by the national media, but by some of the less Trump-y Republican senators. This could be enough to slow down a process that has no time to spare.

I think Frum makes some great points, and anything that will keep me from reaching for the shovel is welcome news right now.

So let’s breathe, and keep fighting on.

A Democratic Senate has never been more important. Make it so.

“This guy is a natural. Sometimes I laugh so hard I cry." — Bette Midler on Aldous J. Pennyfarthing, via TwitterFind out what made dear Bette break up. Dear F*cking Lunatic: 101 Obscenely Rude Letters to Donald Trump and its boffo sequels Dear Pr*sident A**clown: 101 More Rude Letters to Donald Trump and Dear F*cking Moron: 101 More Letters to Donald Trump by Aldous J. Pennyfarthing are now available for a song! Click those links, yo!