[Audio version here]
I need to start today’s edition with a significant correction to a discussion in yesterday’s newsletter. I wrote that Democrats might have to overcome a 60-vote filibuster in the event of a tie on the Judiciary Committee for the confirmation of Justice Breyer’s replacement. That is not correct. Senator Chuck Schumer entered into a power-sharing agreement with Mitch McConnell that anticipated the possibility of an 11-11 deadlock on the Judiciary Committee. Under the power-sharing agreement, if the Judiciary Committee is deadlocked, the nomination can go to the floor for a vote and is not subject to the filibuster. The explanation is contained in a report by the Congressional Research Service, “Senate Consideration of Presidential Nominations: Committee and Floor Procedure,” (5/13/21). Here is the description in the CRS report:
In the 117th Congress, the Senate agreed to S.Res. 27, a resolution establishing procedures that will be in effect this Congress as long as Senate membership is evenly divided between the two political parties. The resolution created a process by which a Senate majority can vote to discharge a committee from consideration of a matter, including a nomination, if it is not reported because of a tie vote in committee.
If the nomination is “discharged” from the Judiciary because of a tie, it goes to the Senate floor and requires only a majority vote for passage because of recent changes to the filibuster rules for Supreme Court nominees. Kudos to Senator Schumer for anticipating a deadlock on the Judiciary Committee and writing a rule to circumvent the possibility of a filibuster. I should note that in my incorrect explanation yesterday, I had the foresight to write, “I am not an expert in Senate parliamentary procedure, so my explanation for the above relies on the reporting by Philip Elliot in Time, “How McConnell Could Block Biden’s Supreme Court Nominee.” Shortly after I sent the newsletter last evening, Time issued a “correction” to Elliot’s article that retracted the original premise of the article and changed the headline (and thesis of the article) to, “Democrats Can Replace Justice Stephen Breyer on Party Lines.”
So, Democrats have a procedural path to confirmation for any Supreme Court nomination by Biden. Justice Breyer and President Biden held a joint press conference to announce Breyer’s retirement. Biden reiterated his promise to appoint a Black woman to the Supreme Court. Biden said that he had made “no decision” about who the nominee would be, except that candidate would be “someone of extraordinary qualifications, experience, character, and integrity.”
Republicans have already begun an overtly racist campaign claiming that Biden’s nominee will be someone whose only qualification is the color of her skin. The noted white supremacist sympathizer and insurrectionist Senator Josh Hawley twisted Biden’s words about “extraordinary qualifications, experience, character, and integrity” into a vile accusation that the Biden nominee would lack any qualifications for the job. Hawley said,
I think it sends the wrong signal to say that, ‘Well if a person is of a certain ethnic background, that we don’t care what their record is, we don’t care what their substantive beliefs are.’ That would be extraordinary.
Of course, Hawley’s characterization is the opposite of what Biden said in his remarks, but Hawley’s slander presages the attacks that Republicans will make, i.e., “If the nominee is Black woman, her only qualification is her ethnic background.”
Even if Democrats can avoid the filibuster in bringing the nomination to the floor, it promises to be a bruising fight. The good news for Democrats is that the nominee will have sterling credentials. The bad news for Republicans is that their only real objection will be to the color of the nominee’s skin—no matter how they try to spin their opposition. At the very least, the nominee will not have attempted to overthrow the Constitution, as Senator Hawley and seven of his Republican colleagues in the Senate attempted to do on January 6, 2021.
The economy continues a strong rebound.
The economy continues to post strong gains. Period. Full stop. That’s the story. But the story in the media is “The economy continues to post strong gains, but voters see gloom.” See NYTimes, “Biden’s Economy Is Surging but Voters Still See Gloom.” Of course, the media owns a big part of that gloominess, though pandemic weariness and inflation are contributors as well. What is remarkable in the media reporting about voter unhappiness is that stories about the economy are written as if the economy is the only the issue that matters to voters. Don’t get me wrong; the economy matters—a lot. But so does the question of which party is trying to help voters manage the pain of the economy through tax credits, childcare subsidies, unemployment extensions, free college tuition, student loan debt forgiveness, and more.
The analysis in the media is a two-step flow chart: Economy: good or bad. President: credit or blame. The media narrative about the economy is also binary—growth vs. inflation. There are, of course, many other dimensions to that story—like the impact of Covid on businesses and manpower, the impact of Covid on working parents with school-aged children, the Great Resignation, supply chain issues, the effects of limiting immigration into states that depend on migrant workers for seasonal agricultural work, chip shortages, and more.
Like you, I am frustrated that the media has decided that we are in a negative news cycle regardless of the facts. I can only repeat my advice that we must fill the information beast with a steady diet of positive news and serve as models of inspiration and hope during tough times. People are looking around nervously, seeking clues from others about how we should be reacting to this steady stream of negative coverage. In action and word, show them that we are confident in our cause and strong in our convictions. Nothing good will happen unless we make it so.
Election nullification.
A prominent think tank just released a 42-page document explaining how Republicans plan to steal the 2024 presidential election. I have already received two copies from readers—and expect to receive many more. So far as I can discern, everything in the report is accurate and grounded in fact. We should take such threats seriously. But we should not exaggerate them by failing to state all relevant facts. I receive daily emails from readers concerned about “election nullification” by state legislatures, which refers to a legal theory among right-wing ideologues that state legislatures can do anything they want in appointing presidential electors—including overriding the popular vote of the people. We should be concerned that some Republicans believe that theory—but we should also acknowledge that the Constitution and Supreme Court will have a lot to say about any effort by a state legislature to overturn the popular vote in a presidential election.
Examining the constitutional scheme for appointing and counting electors should give us comfort that no state legislature will succeed in nullifying an election. Article II of the Constitution states that
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.
Every legislature has directed (by legislation) the manner in which Electors are appointed—by popular vote of the people. A legislature could make a different choice, e.g., by providing that the legislature shall appoint electors without asking for a vote of the people. But no legislature has made that choice. And no legislature could make that choice as to an election that has already been conducted under laws that say the people appoint electors. If a legislature attempted to change “the Manner” in which electors are appointed after millions of citizens have already voted under existing law, that would constitute a wholesale disenfranchisement of the people in violation of the due process and equal protection clauses of the Constitution. No court would countenance that result.
The Supreme Court has never addressed this question directly because no state legislature has ever attempted to nullify an election. But in a 9-0 decision in Chiafalo v. Washington, the Court considered whether a “faithless elector” could disregard the popular vote even though the Constitution seems to empower Electors as independent agents who are free to vote their conscience. The unanimous Court in Chiafalo ruled that regardless of the language of the Constitution, 200 years of precedent establishes that electors are merely a mechanism for carrying out the will of the people. As Justice Kagan wrote for the Court,
the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.
Just as faithless electors are prohibited from “reversing the vote of millions of people” because of 200 years of precedent, so too are legislatures prohibited from “reversing the votes of millions of people” by changing the rules after the fact.
The above is a simplified explanation of an arcane and complicated subject. Some will disagree with my analysis and claim that Thomas, Gorsuch, and Alito would back the theory that a legislature can change the rules whenever it wants—even after the people have voted. But the best evidence we have of how they might rule is the Chiafalo opinion, where every Justice ignored the plain language of the Constitution and denied electors the ability to overturn the will of the people.
It is appropriate to worry about election nullification, but only if you match that worry with personal action and financial support for organizations that will be litigating against any state legislature that tries to disenfranchise its citizens. For specific organizations deserving of your support, stay tuned to future editions of the newsletter.
Concluding Thoughts.
January 27th is Holocaust Remembrance Day—an event in the living memory of hundreds of thousands of survivors and millions of their family members and descendants. Denial, rationalizations, and minimization began almost as soon as the gates of Auschwitz were opened. Sadly, those efforts continue today as anti-vaxxers attempt to equate wearing a mask to imprisonment, starvation, and death in a concentration camp. In parts of the U.S., anti-Semitic leaflets are appearing in mailboxes and screen doors that claim that “every part of Covid is a Jewish conspiracy.” In Tennessee, a school board banned Maus, a Pulitzer Prize-winning graphic novel about the Holocaust because, in the words of one board member, she “thought the end was stupid and did not like the son cussing out the father and treating his father like he was the victim.”
Remembering the Holocaust is hard—because it happened in living memory and was humanity at its ugliest. We can’t make it disappear by banning a graphic novel on false pretenses. Remembering the Holocaust is important because it reminds us that even hard and ugly truths must be taught and retold despite our discomfort and shame. The Holocaust teaches us that we must challenge evil whenever and wherever we see it. And it teaches us that we must never tolerate conspiracy theories or ideologies that seek to deny the humanity of anyone for any reason. As those theories regain purchase in the nativism and populism sweeping America, it is up to us to stop it. And we can do that by ensuring a robust, tolerant, and just democracy—the animating principle of everyone who is striving to preserve our nation and defend our Constitution.
Talk to you on Monday!
P.S.
On Saturday, January 29th, I will interview representatives of Next Generation Politics on Today’s Edition Podcast (11 AM Pacific / 2 PM Eastern). Join the conversation with three high school students involved in Next Generation Politics. It should be fun and inspiring! Download the Callin app and follow @roberthubbell and Today’s Edition Podcast to join the discussion.
Holocaust Remembrance Day can be a powerful inspiration for us, as we struggle against a--so far, at least--less deadly and more poorly organized attempt to impose tyranny. In 2008, my wife and I went to Auschwitz, something I had long thought I should do. I held myself reserved for most of the visit, but at one point we came upon an Israeli student group. I don't speak Hebrew, but to hear it spoken in that place, 65 years after the Nazis made it a killing ground, was truly uplifting. (At the end of our visit, I went over to the wire, took out my father's talit (prayer-shawl) and a yarmulke, and stumbled through the Mourners' Kaddish, the prayer for the dead. My way of sticking a thumb in Hitler's eye.) Even the phrase "Never forget," can become shop-worn and lose meaning, unless we remember and use the memory to keep freedom and human dignity alive.
Thank you again for such an informative newsletter. I recently read the book "The Dressmakers of Auschwitz: The True Story of the Women who Sewed to Survive" by Lucy Adlington. It was a heart rendering story not only of what these women, and others in the death camps endured, but also the resilience and lasting friendships among them. If you read it...and I recommend that you do...you will understand at a personal level some of what happened there. And the Lincoln Project just came out with a powerful piece called "Never Again". After reading that book, the video brought me to tears.
https://www.youtube.com/watch?v=jFCeu5E0nXg