Knowns and unknowns of confirmation politics

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On the roster: Knowns and unknowns of confirmation politics - Hawkeye State in dead heat - Deal to avert shutdown falls apart - Maine’s ranked choice voting withstands test - Calling all rat lovers…?

Let’s start with the precept that anybody who tells you what all the political consequences of a Supreme Court nomination fight this close to a presidential election will be is either trying to fool you or is fooling themselves.

There’s no real precedent in our time for this scenario, so save yourself the trouble of jumping back from hasty conclusions later. As short as time is, there’s still enough of it to think things through.

To that end, let’s quickly sort through some of the most obvious consequences, and a few that are not so obvious.

First, let's keep things in perspective. America has now crossed the 200,000-death threshold in the coronavirus pandemic. Europe, especially Britain, is in big trouble. And cases are flaring again in some heartland states, particularly Wisconsin.

While it is certainly good for President Trump to have a narrative shift of this magnitude away from his greatest vulnerability, this vacancy, appointment and confirmation hearings will still not have their normal political swack. Supreme Court confirmations are usually the only political event happening at the time. It won’t be that way now.

Relatedly, the hearings have their own effect on the politics of coronavirus. We were quite skeptical about the ability for Congress to come up with a major stimulus and relief package before the election. Skepticism has now turned to certainty. In this partisan stew lawmakers will have enough trouble avoiding a partial government shutdown let alone doing anything else before the election.

Here’s an interesting thought experiment: If you were Trump would you rather have a Supreme Court nomination or a nice fat stimulus package that sent $1,200 checks to every persuadable voter? We know that’s not a choice he got to make, but it does put the relative political value of the nomination in some perspective.

It may also be less dramatic than many initially expected. The news that Sens. Mitt Romney, Cory Gardner and Chuck Grassley are all on board with considering a nominee suggests that we may not see that much brinkmanship. Given that Trump seems to be focusing on well-vetted, well-qualified mainstream conservative candidates in Judges Barbara Lagoa and Amy Coney Barrett it might really be possible to get a confirmation done in the next 42 days with a minimal amount of drama.

How much drama depends on how well the Republicans and their nominee do in execution but also how far Democrats want to take things.

There was a lot of loose talk in the immediate aftermath of Justice Ruth Bader Ginsberg’s death that Democrats would bring holy hell down in punishment for Republican’s filling her seat before the election. Nuclear option! Pack the court! Impeach!

But Democratic nominee Joe Biden isn’t eating any crazy cakes so far. As left-wingers are imagining the means to, as William F. Buckley would have said, immanentize the eschaton, Biden is trying to not sound apocalyptic. So far, he seems to be getting away with it.

What Biden is hoping is that as Democrats see a six-three conservative majority taking shape on the Supreme Court they will become even more desperate to oust Trump and even more willing to overlook Biden’s lack of radicalism.

While the Trump campaign is demanding that Biden release a list of potential nominees, the Democratic standard bearer is under little real pressure to do so. Neither moderate nor progressive Democrats want to hurt Biden’s chances these days and both are inclined to think that they’ll get what they want once he’s in office anyway. If the seat were open, Biden might be in a bind to make a promise. But if the seat is filled, it’s hard to force him into a hypothetical.

What Biden wants is to focus voters as much as possible on two things: 1) That Trump’s nominee will overturn ObamaCare and eliminate coverage for pre-existing conditions and expanded Medicaid and 2) will overturn Roe. v. Wade. Democrats clearly see this as a way to intensify antipathy toward Trump with women, including some Republican learners.

But Biden needs to avoid having Sens. Cory Booker, Mazie Hirono and their Democratic colleagues on the Senate Judiciary Committee resort to histrionics and ad hominem attacks during the closely watched hearings.

Republicans are counting on Democrats overplaying their hands and turning off voters with a Torquemada routine in the Senate. There’s also the danger that if a doomed effort to block the nominee goes on too long it could end up dispiriting Democrats more than firing them up.

Biden has no control over how Senate Democrats proceed. He just has to hope that they’re more interested in helping his cause than in getting attention for themselves… good luck with that one.

Given how little we still know about the way in which this will all proceed it’s important to remember that questions about who, how and when matter a great deal. This could still be anything from a major remaking of the race to something of a political footnote before we are done.

“ASSUMING it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation.” – Alexander Hamilton, introducing his warnings of the potential consequences of aggression between states, Federalist No. 8

History: “On September 22, 1862, President Abraham Lincoln issues a preliminary Emancipation Proclamation, which sets a date for the freedom of more than 3 million enslaved in the United States and recasts the Civil War as a fight against slavery. When the Civil War broke out in 1861, shortly after Lincoln’s inauguration as America’s 16th president, he maintained that the war was about restoring the Union and not about slavery. He avoided issuing an anti-slavery proclamation immediately, despite the urgings of abolitionists and radical Republicans, as well as his personal belief that slavery was morally repugnant. Instead, Lincoln chose to move cautiously until he could gain wide support from the public for such a measure. In July 1862, Lincoln informed his cabinet that he would issue an emancipation proclamation but that it would exempt the so-called border states, which had slaveholders but remained loyal to the Union. … Lincoln’s opportunity came following the Union win at the Battle of Antietam in September 1862.”

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Trump: 43 percent             
Biden: 49.2 percent             
Size of lead: Biden by 6.2 points             
Change from one week ago: Biden ↓ 1.4 points, Trump ↓ 0.6 points             
[Average includes: NBC News/WSJ: Trump 43% - Biden 51%; NPR/PBS News/Marist: Trump 43% - Biden 52%; AP/NORC: Trump 40% - Biden 44%; Fox News: Trump 46% - Biden 51%; Kaiser Family Foundation: Trump 43% - Biden 48%.]  

(270 electoral votes needed to win)
Toss-up: (109 electoral votes): Wisconsin (10), Ohio (18), Florida (29), Arizona (11), Pennsylvania (20), North Carolina (15), Iowa (6)
Lean R/Likely R: (180 electoral votes)
Lean D/Likely D: (249 electoral votes)

[Ed. note: Want to keep up with the latest Fox News Power Rankings? Our 2020 Elections web page is live! Stay tuned for our House Power Rankings… coming soon!]

Average approval: 44.2 percent  
Average disapproval: 53.8 percent  
Net Score: -9.6 points  
Change from one week ago: ↓ 0.2 points
[Average includes: NBC/WSJ: 45% approve - 53% disapprove; NPR/PBS News/Marist: 43% approve - 53% disapprove; AP/NORC: 43% approve - 56% disapprove; Gallup: 42% approve - 56% disapprove; Fox News: 48% approve - 51% disapprove.]       

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Des Moines Register: “It's a dead heat in Iowa as a new Des Moines Register/Mediacom Iowa Poll shows President Donald Trump and former Vice President Joe Biden locked in a tie just six weeks to Election Day. Forty-seven percent of likely voters say they would support Trump for president, and 47% say they would support Biden. Another 4% would vote for someone else and 3% are unsure. A stark gender divide appears to be driving the race as men of nearly every demographic cast their support for Trump, a Republican, and women do the same for Biden, a Democrat. ‘I don’t know that there’s any race in the history of presidential polling in Iowa that shows this kind of division,’ said J. Ann Selzer, president of Selzer & Co., the firm that conducted the poll. Trump leads by 21 percentage points with men, 57% to 36% over Biden. And Biden leads by 20 percentage points with women, 57% to 37% over Trump.”

Georgia looks ‘too close to call’ - AJC: “A new poll conducted for The Atlanta Journal-Constitution shows the presidential race in Georgia could not be closer, with President Donald Trump and Democrat Joe Biden tied in a political environment dominated by the fallout from the coronavirus pandemic as well as protests over racial inequality. The poll pegged Trump and Biden at 47% apiece, with an additional 1% of voters backing Libertarian Jo Jorgensen. … Georgia’s twin U.S. Senate races are also competitive. U.S. Sen. David Perdue (47%) and Democrat Jon Ossoff (45%) are neck-and-neck, within the poll’s margin of error of 4 percentage points. Libertarian Shane Hazel has 4% support, and about 5% are undecided. The special election for U.S. Sen. Kelly Loeffler’s seat is still highly unsettled. Loeffler is pegged at 24%, echoing other polls that suggest she’s built a slight lead. But U.S. Rep. Doug Collins, her fiercest Republican rival, and Democrat Raphael Warnock are within striking distance at roughly 20% each.”

Union members stick with Trump - Politico: “Joe Biden has pitched himself to voters as a ‘union man,’ a son of Scranton, Pa., who respects the dignity of work and will defend organized labor if he wins the White House. To rank-and-file members in some unions, especially the building trades, it doesn’t matter. They’re still firmly in Donald Trump’s camp. Labor leaders have worked for months to sell their members on Biden, hoping to avoid a repeat of 2016 when Donald Trump outperformed among union members and won the White House. But despite a bevy of national union endorsements for Biden and years of what leaders call attacks on organized labor from the Trump administration, local officials in critical battleground states said support for Trump remains solid. ‘We haven’t moved the needle here,’ said Mike Knisley, executive secretary-treasurer with the Ohio State Building and Construction Trades Council, who estimated that about half of his members voted for Trump in 2016 and will do so again.”

Roll Call: “House leaders abruptly delayed plans for a floor vote Tuesday on a stopgap funding measure needed to avoid a partial government shutdown. The surprise move signaled potential trouble with the Democrat-authored continuing resolution, which lacked support from Republicans. A tentative ‘agreement in principle’ collapsed late last week after a dispute over farm payments that had been part of the measure. … After bipartisan talks fell apart late last week, Speaker Nancy Pelosi and Treasury Secretary Steven Mnuchin had been expected to try to put the pieces back together. But the death of Supreme Court Justice Ruth Bader Ginsburg, announced Friday night, quickly dominated the attention of official Washington… Before his testimony to the House Financial Services Committee, Mnuchin told reporters on Tuesday that the CR was under negotiation, however. And House Democratic Caucus Chairman Hakeem Jeffries of New York told reporters that bipartisan talks may be back on the table.”

Voters foresee a long slog on the economy - AP: “Most Americans view the nation’s economic situation as bleak, but a rising percentage also see signs of stability six weeks before Election Day — if not reasons for optimism. According to a new poll from The Associated Press-NORC Center for Public Affairs Research, 60% of Americans describe the national economy as poor and 40% deem it good. That’s a rebound in confidence from low points in April and May, when just 29% called the economy good as the coronavirus pandemic took hold of the country. About 4 in 10 Americans — 43% — say they expect the economy to improve in the next year, about the same as in July. But just 28% said they expect things to get even worse, a slight improvement from the 35% who said so in July and a significant improvement from May, when 40% expected things to continue getting worse. This month, 27% expect no change in economic conditions in the next year.”

CDC delays vote on virus vaccine roll-out - WSJ: “A federal vaccine advisory committee will put off a vote on recommending who should get initial limited doses of any Covid-19 vaccine in the U.S., until committee members learn more about the vaccines that could become available first, according to people familiar with the matter. The Advisory Committee on Immunization Practices, a group of external medical experts that advises the Centers for Disease Control and Prevention, was initially expected to vote at a meeting Tuesday on a plan to give priority to initial doses of any Covid-19 vaccine that passes muster in clinical trials. The ACIP may wait until government officials authorize a specific vaccine or vaccines for use before voting on how to give priority to initial doses, one of the people familiar with the matter said. Some information, like how effective a vaccine is, may not become available for several weeks.”

AP: “Ranked choice voting will be used for the first time in a presidential race in the U.S. under a ruling Tuesday by the Maine Supreme Court, which concluded a GOP-led petition drive intended to prevent its use came up short. The Supreme Judicial Court concluded the Maine Republican Party failed to reach the threshold of signatures needed for a ‘People’s Veto’ referendum aimed at rejecting a state law that expands ranked choice voting to the presidential election. ‘This is a powerful moment for ranked choice voting supporters: Voters will, for the first time, use ranked choice voting to elect the highest office in the country,’ said Rob Richie, president and CEO of FairVote, which advocates for the voting reform. The court’s decision, just six weeks before the election, was issued after the state already began printing ballots using a grid-style for ranked elections.”

Wisconsin voters get extra six days to return absentee ballots - Milwaukee Journal Sentinel: “A federal judge on Monday gave Wisconsin voters an extra six days to get their absentee ballots back to election clerks this fall in a broad decision that also will make it easier to hire poll workers. Anticipating an appeal was likely, U.S. District Judge William Conley immediately stayed his ruling, writing that it wouldn't go into effect for at least a week. If higher courts uphold his decision, the nation will have to wait for a week after Election Day to get full presidential results in a crucial swing state. Conley's decision came four days after clerks around the state sent more than 1 million absentee ballots to voters. Absentee voting is expected to hit a record this fall because of the coronavirus pandemic. Conley ruled that absentee ballots would be counted if they are postmarked by Nov. 3 — Election Day — and received by clerks by Nov. 9. Ordinarily, ballots must be in the hands of clerks by the time polls close on Election Day.”

Trump campaign challenge to Nevada mail voting law dismissed - AP: “A federal judge has dismissed a lawsuit from President Donald Trump’s reelection campaign challenging Nevada’s new vote-by-mail law, saying the campaign failed to show how it could be harmed by the law. The campaign, which has filed lawsuits in several states over voting rules, had asked the judge to block a new Nevada law that calls for mail-in ballots to automatically be sent to all active Nevada voters, a change prompted by efforts to contain the coronavirus. The campaign has argued the law passed by the Democrat-led state Legislature is unconstitutional, removes election safeguards and would allow people to cast votes after Election Day.”

“Yep, she’s more conservative than Attila the Hun.” – A new campaign ad for Sen. Kelly Loeffler, R-Ga., compares the senator to the ruthless ruler of the Hunnic Empire.

“You missed the most obvious Justice confirmed during the lame duck session: CJ John Marshall, the author of the seminal Supreme Court decision, Marbury v. Madison. Suggest you read the SCOTUSBlog, which first identified CJ Marshall. I should [add] that John Adams, defeated in the election in November 1800, nominated Marshall January 1801, Marshall was confirmed January 27, 1801 and sworn in February 1801, for the last month of the Adams presidency, Marshall continued as his Secretary of State before taking over as CJ.” – Frederick H. Graefe, Washington, D.C.

[Ed. note: The OG! Good point, Mr. Graefe. Thanks much.]

“You made a major factual error in your Sept. 21, 2020 article ‘History of Election Year Appointments’ concerning Woodrow Wilson. Your comment, ‘But with Americans anxious about worsening war in Europe and a revolution in Mexico, Wilson was in little danger of defeat’ is totally inaccurate. In fact, he barely won one of the closest elections in U.S. history, only by barely winning California by less than 4,000 votes. The final electoral college vote was 277 Wilson, 254 for Charles Evans Hughes and the final result wasn't known for days. Wilson only won the popular vote by 3%.” – Tom Sommers, Libertyville, Ill.

[Ed. note: I love a Charles Evans Hughes fan! I might say “totally inaccurate” is a little strong, but I take your point. My estimation certainly relied on the benefits of hindsight.]

“I am a regular reader and depend on your calm voice and deep respect for the institutions of this country, especially at times like these. I was certain you would have some thoughts today about just how awful the race 2020 race just became with Justice Ginsberg’s passing. You have had so many noteworthy calls to unity, such as your September 11th post. I dunno, maybe the fact that you are taking it in stride and simply analyzing it from the perspective of the race signals that you don’t think it’s such a big problem, so maybe that should give me comfort. But the Supreme Court is arguably the one federal institution that has any credibility these days and what the GOP is doing to it right now seems to be flushing that away. And you might say that if the shoe was on the other foot, the Dems would have done the same thing. Well, I don’t want to write the article for you and I know you pen political commentary and should not be expected to calm us all down after every outrage. But you are so good at it! Thanks for listening to me and for all your good work.” – Jay Grimm, New York

[Ed. note: I know this is a rough one for the many devotees of Justice Ginsberg. Not only have they lost an iconic, historic champion of progressive causes but will now likely see her seat filled by a conservative, potentially tipping the balance of the court for a decade or more. And I know this is also a blow to those who yearn for a more deliberative Senate – or one that has any deliberation at all. But that’s why I included the history of election-year appointments, including the one and only recess appointment by the soul of deliberation himself, Dwight Eisenhower. Democrats had every right to be furious with Republicans for obstructing President Obama’s pick in 2016, and now have every right to call shenanigans on the GOP for all of its hot air about precedent. But this is how the system is designed to work. It is certainly unfortunate that the Senate has fallen so far from the Founders’ goal and is becoming an unrepresentative version of the House -- a problem created by members of both parties. I wish we had supermajorities debating and reaching bipartisan consensus, but we are a long way from that now. And as far as the race goes, if anything this should inject some modicum of decorum into matters – at least until the seat is filled.]

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CNET: “Rat lovers appreciate the creatures' sweet natures and intelligence. Others have issues with the naked tails and plague associations. But most rat aficionados are aware of the idea that rats enjoy being tickled and will ‘laugh’ when stimulated. Turns out that's not a blanket statement for all rats. Researchers at the University of Bristol in the UK took a closer look at the laughing-rat phenomenon to determine if the rodents actually like to be tickled. So they tickled some rats and monitored their high-pitched vocalizations. ‘The researchers found not all rats like to be tickled and that some rats emitted very high numbers of calls whilst others did not, and these calls are directly related with their emotional experience,’ the University of Bristol said in a statement on Monday. Rats that laughed the most also had the highest positive emotional response to tickling. Those that didn't laugh weren't enjoying it. Rat giggling has been the subject of studies before.”

“Cats, it must be said, have not done badly. Using guile and seduction, they managed to get humans to feed them, thus preserving their superciliousness without going hungry. A neat trick.” – Charles Krauthammer (1950-2018) writing about cats and dogs in Time magazine on June 10, 2003.

Chris Stirewalt is the politics editor for Fox News. Brianna McClelland contributed to this report. Want FOX News Halftime Report in your inbox every day? Sign up here.