Split SCOTUS evenly? Why not!

This week Ted Cruz said “There is certainly long historical precedent for a Supreme Court with fewer justices” in not filling the vacant SCOTUS seat.  No, not really.  The Judiciary Act of 1869 set the court at 9 justices and it has been this way ever since.   Yes, FDR attempted to pack the court during his time, but it never happened.

But this has certainly created some buzz among the Right. Michael Stokes Paulsen went even further, suggesting that Congress reduce the number to back to the original six established in the Judiciary Act of 1789.  This would be accomplished through retirements and/or deaths and refusing to appoint replacements.  One of his chief reasons is that altering the Constitution would need two-thirds support (4 of 6 justices).

While this second suggestion is interesting, it will never happen. If the GOP wins the White House and controls Congress, they will put their ideological soul mate on the court to have a 5-4 majority.  In any other scenario, a Democratic Senate or President would block this.

The reason why not is so simple: in modern times we view politics as a competitive parlor game, not a difference of ideological opinions.  Neither side wants the best justice, but the best one for their positions. And where it used to be that a president from one party, with a Senate controlled by the other, would offer a moderate justice, now the GOP has set the precedent of not filling the seat with even a moderate justice.

Senator John McCain, even before Cruz’s suggestion, had stated that the seat would go unfilled as long as Clinton (should she win) be President.

In other words, this is all about the game – and not about the Constitution nor the American People.  So, instead of playing Match.com: The SCOTUS Edition, let’s just admit that this is a game and play it that way.

Congress should set SCOTUS at 8 justices, and moving forward, should fill the court with 4 GOP appointed justices and 4 Democrat appointed justices.  The purpose of 9 was to avoid a tie.  But again, this makes it all about the game.

If the court were set at two 4-person ideological teams, then it would take shifting one justice from the other team over to your side.  And that won’t be easy.  That would be the point.  The Right feels that a Clinton pick would put 5 “activist” judges on the court.  The Left worries that a Conservative pick would roll back minority rights or pave the way for bigger Corporate gains.

An even 4-4 split means that the court would truly need to rule in favor or against by converting at least one on the other side.  There are many 5-4 rulings, but there are also many where justices side in larger majorities.  If you can’t swing one on the other side, then there is no change to the law.  This lends from the Paulsen idea from above where a change to the Constitution be challenging.

Could there be an added bonus? Might this also stem the anger of Americans when 5-4 votes are controversial, such as Citizens United and Same Sex Marriage?  This wouldn’t be a majority of one-sided court ideologues, but instead four plus a conversion of at least one from the opposing view.

The danger here, of course, is in each side picking extremists for the court.  Four far right and four far left would make it hard for one to side to sway the other.  But if it is truly about the Constitution, judges can be funny creatures.  Earl Warren wasn’t supposed to be liberal. There are other examples like this, albeit none in modern time. This could be stemmed by an approval process in the Senate that requires an approval of at least a quarter of the opposing party.  Which, of course, is meaningless in a heated partisan divide like we have now.

What remains clear, regardless, is the American people want hearings on Supreme Court nominee and want the seat filled.

  • J.

Repeat after me: Elections aren’t rigged

There is a faction of America who think the election will be “stolen” and that ttrocess is rigged.


Start with common sense, and think of the process of where you vote.  You walk into your local precinct, stocked with ordinary people from your community.  You might say hello and ask how their family is doing.  They check your name and ID against the book of registered voters looking for your matching signature.  In most places you are handed your ballot or plastic card for a touch-screen and off you go to vote.

For the election to be rigged, your local volunteers would need to be in on the scam. In my Ohio community of 20,000 inhabitants, there are just less than a dozen polling precincts located in three or four voting locations.  Each voting location has, easily, 20 volunteers at any time during the day.  There must be 50 voting locations in my county, which is one of 88 in the state. How many thousands of local volunteers at polling stations would need to be in on the fix?  A GOP-based DC law firm tweet-stormed how this idea of a rigged election is preposterous.

Also at each polling location are members of the Democratic and Republican parties, trained to watch to be sure there are no shenanigans take place and that any voting irregularities are handled immediately and by the book.  Pollwatching is pretty much the same in every state, and with each party granted the opportunity, another layer of protection guarantees that the system is not rigged.

Elections are state-run affairs, but managed at the local level.  States are a patchwork of different systems for voting, from optical scan to touch-screen computers and paper ballots for those who vote absentee. Indeed, the entire state of Oregon is absentee, as their system is exclusively mail-in.  Anyone who claims the system is rigged needs to explain how this can be to you and me.

This doesn’t even broach the topic of voter fraud, which has been found to be tremendously rare. To buttress this claim, the Federalist website took these claims to task, pointing out that in Pennsylvania 700 people may have voted twice (which doesn’t even add up to 0.10% of the electorate in that state) and that in Colorado a handful of dead people voted.  Yes, voter fraud exists.  But by the total number of votes counted, voter fraud is extremely rare.  And yes, we should continue to prosecute it and continue to work to have fraud-less elections.  But this is hardly proof of stolen elections.

What is possible is that the election could be hacked.  There is ample data showing that the potential for this does exist.  And some states do not have a redundant backup to verify a person’s vote, such as Georgia. However, there are multiple back-ups and secure steps in place for the preventing the tampering with the actual total vote count in a state.  When Florida was reported as being hacked this week, allegedly by Russians, it lent credibility to the claim that election could be thrown.  But read through how Florida handles the actual voting mechanisms which make throwing the election much more than a simple hack.

So rigging an election?  Nope.  Hacking election systems that create chaos and turmoil?  Very possible.  Throwing the election through a simple hack?  Fantastical.

Democracy is built upon trust: of each other and of our elected leaders. It would be the ultimate show of patriotism in the worlds oldest running democracy for its leaders — of all political stripes — step forward and jointly speak to the confidence each has in the election mechanisms.  Why would anyone want to cast doubt over the legitimacy of our democracy?

White guys aren’t determining this election…

How many of your friends have said something akin to choosing the lesser of two evils with this election? Chances are that friend was a white guy. Back from the summer, when things were much, much rosier for both candidates, here’s what it looked like with ABC News:

White folks back in the good old days of the summer were at 50% unfavorable for both candidates.  But by the end of the summer… it goes worse for both:


But while white guys are wringing their hands over these supposedly bad candidates… dig inside the numbers and you will find that there are demographics who very much like one of the candidates.


Dig into those Net Positives in the columns for Black, Hispanic and Asian for Clinton. This the Hispanic numbers don’t blow you away, they are on the positive side for Hillary, a full 68 points above Trump’s. Over a month ago, SurveyMonkey had even higher numbers:

So it’s quite clear that all this chatter about two bad candidates… is a lot of… white noise.

Two weeks ago, fivethirtyeight.com posted that Trump could win if the “missing white” votes from 2012 were engaged and voting.  But they are not.

Although Trump may be converting plenty of existing voters to his side, there’s really very little evidence that previous nonvotersare coming out of the woodwork in large numbers for him. – 538.com

But this “converting” voters is misleading, because the same site shows that Trump is faring worse than Romney with the non-college white voter.

Even as he piles up support among white men without a college degree, he’s on track for a record poor performance for a Republican among white voterswith a degree. And right now, that tradeoff is a net negative for Trump, compared with Romney. If a ton of new white voters without a degree flooded into the electorate, that could change the math for Trump. – 538.com

The Pew Research Center showed back in February that there projects to be 226 million eligible voters in 2016, of which 31% will be minority voters.  In a typical election, the white vote is split between the two candidates.  For argument’s sake, give 60% of the 165 million white voters to Trump, which comes out at 99 million votes.  Clinton takes home 66 million.  Now factor the minority vote, and give 80% of the remaining 64 million minority votes to Clinton, and you get 118 million for her and 111 for him.  Keep in mind, giving Trump 60% of the white vote is very generous for September, let alone where he is now.

But now unpack the female white vote.  It’s trending fast and furious away from one candidate. Before there was a Trump “sex tape”, women were far and away anti-Trump:

Clinton has consistently led by double digits among female voters, while men have fluctuated from a 42 percent tie between the candidates in June to a current 16-point edge for Trump. Among likely voters, Clinton has a 19-point lead among women, and Trump has an identical lead among men. – Washington Post, Sept. 25

In 2012, 53% of the voters were women. If you re-visit those 165 million white voters and take out 53%, 87 million are women.  Conservatively, giving 60% to Clinton (that 19 point lead two weeks ago) yields 52 million.  Add in her 51 minority votes, and she is at 103. Add in a mere 40% of the male white vote, and she’s at 133 million votes. Trump would come in at 96 million.  This Washington Post poll is illuminating:

Polls are just that, a prediction that sometimes can be wrong.  But when you look at trends as you dig inside the demographics of the 2016 election one thing is really clear.  White guys are not the ones who will decide the Presidency this year.

  • J.

Election 2016: Can we have a mulligan?

Friday’s news cycle was a depressing one regardless of candidate.  Trump’s “hot mic” moment is winning the news cycle, but Hillary’s wiki leaks revelation isn’t a winner either.  In a “normal” election cycle some of these moments by both candidates would be deadly damaging.  But in 2016, it’s just hunker in the bunker and say the other candidate is worse.

Consider today…

  • Key Republicans either un-endorsed Trump or asked him to step down. Trump said “no way” will he step aside.
  • Trump has said he will go after Bill Clinton’s sexual misconduct in the next debate, saying Hillary was complicit or an enabler.  Yes, Bill is not running for President, but if it wasn’t a Clinton running this wouldn’t be an issue.
  • Fox News on the morning following Trump’s “hot mic” incident, dispatched a female Democratic media member who will still be voting for Trump. She said his comments were just locker room banter and that Hillary Clinton was much worse to women, citing reports she went after those accusing Bill of infidelities. Again, it would have been hard to shift the argument had this not been a Clinton running.
  • The revelation that Hillary said one thing to Wall Street in private, and expensive, speeches and said another to Bernie Sanders followers is a tough pill for many to swallow on the left.

Both Clinton and Trump are trying to face down recent accusations that their Foundations are just fronts.  Hillary’s in a “pay for play” situation and Trump’s in feeding his own businesses.  How many times does “lesser of two evils” come up on Social Media?

So the Sunday Debate… guess it is going be devoid of wonky policy discussion, eh?  And… it makes you wish for a mulligan. Can’t we just do this all over again?

Turns out, that’s totally possible.  Consider Article I, Section 4 of the U.S. Constitution:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. – Article I, Section 4 of the U.S. Constitution

Congress has every ability to change the date of the national elections.  If both parties could be convinced, they could easily pass such a law and set a new date (perhaps December 1st) for the Presidency and re-convene their conventions in November and choose anew. Likely?  Absolutely not.  Could it be done?  Technically, yes.  Expensive?  Certainly, and that is a state expense, not a federal one.v  Pragmatically… not a chance.

But with record unfavorabilities of the two candidates, would this restore the faith of the electorate in their candidates?  Maybe not… but one has to wonder, if given the choice, would America make this call:


  • J.

What if Trump withdrew from the race?

With the news Friday of the latest Trump bombshell, caught on a “hot mic” leading into an interview, the interwebs are ablaze again, asking… again: Can the GOP replace Trump?

Yes.  And No.

Yes, according to the GOP’s own rules, they are able to at any time replace the candidate for president. Indeed, Senator Mark Kirk (R-IL) suggested this on Friday.  Back in August, this movement had minor play in the media, and a GOP expert stated that it was completely possible to replace a candidate for any reason.  But that was August… we are now one month out from the General Election.

Could the GOP replace Trump?  Yes, but it seems implausible for any party’s machinations to come together and do so this late in the game.  But what if Trump just quit the race?  Does Pence become the presumptive Presidential candidate?  No. The GOP can select any individual to replace Trump, it doesn’t have to bring Pence in from the Bullpen to take the ball.

But it is already too late to take Trump off the ballot across the country should he be replaced or drop out.  According to individual state laws, a slew of states have already passed the deadline for a candidate to appear on the ballot. There are only 14 of the 50 states where as of October 1st it isn’t clear if a candidate could be added.

That means Trump will be on the ballot across America in just about every state even if he withdraw.  While not quite an equivalent, the idea of a name appearing on a ballot who is no longer in the race… well, America has elected no fewer than 5 dead candidates to Congress, whose untimely passing left their names on a ballot.

However, the Presidential race is different, as our vote isn’t pure like voting for a Congressman or Senator.  Each state has a series of Electors who ultimately cast their vote for President.  Each candidate has a list of Electors who will assemble after the election to vote separately for President and Vice President.

The question becomes, is an Elector bound to vote for the candidate who selected her or him in the first place?  There is no Federal law, so yes, Electors in the states could choose NOT to vote for Trump is he wins the popular vote of that state. But not in 29 states have laws that specify how an Elector can vote.

Most of these state laws generally assert that an elector shall cast his or her vote for the candidates who won a majority of the state’s popular vote, or for the candidate of the party that nominated the elector. – Fair Vote.org

Any time a question can be answered with YES and NO the result is usually the same: chaos.

  • J.


Could America face a potential coups d’etat?

The Election of 1800 was one of America’s most bitter and divisive elections, pitting the incumbent (and unpopular) John Adams against Thomas Jefferson.  But one of the greatest happenings of a young democracy was John Adams accepting the will of the people and peacefully stepping aside.

But with the Election of 2016, should we fear that should Donald Trump lose he will accept the will of the people?  The evidence is adding up that he may not.

On August 2nd, Trump made the claim that “I’m afraid the election’s going to be rigged. I have to be honest.” But his claim was more alarming when he said:

“I’m telling you, November 8, we’d better be careful, because that election is going to be rigged,” Trump added. “And I hope the Republicans are watching closely or it’s going to be taken away from us.” – CNN

Is this just bluster and bravado to provide cover for losing?  Or is this a signal?  This was also months ago, and honestly can be lost in the shuffle of Trumpisms that play out each week.

But yesterday he was sounding the call again:

In an interview with the New York Times on Friday, he backtracked: “We’re going to have to see. We’re going to see what happens. We’re going to have to see.” — The Guardian

This time the New York Times felt it was an attempt to “unnerve” Clinton going into the next debates.  But what of these loyal Trump followers?  In late winter, when protesters were interrupting rallies, Trump encouraged violence — and his supporters followed suit. At no time did Trump attempt to dissuade his followers not to be violent and early on invited it.

Some of his followers are a rabid bunch.

So the unanswered question is this: just how many Trump supporters are willing to violently protest should he lose the election?  He has already invoked “2nd Amendment” remedies against Hillary:

“Hillary wants to abolish — essentially abolish the Second Amendment. By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know,” Trump said. CNN

The big picture remains: if he loses the election and casts it as rigged, will his fervent followers begin to use “2nd Amendment” options to protest what they overwhelmingly feel is a rigged election?  Despite evidence that voter fraud is rare, half of Trump’s followers disagree. The very reason Trump rose from the Republican field is the groundswell of anger among the GOP base.  It’s dry kindling awaiting a match and some oxygen.

Surely we won’t reach this point, right? Consider that national and local Fraternal Order of Police associations are endorsing Trump. They had not endorsed any Presidential candidate since 2008. Recently in Cleveland, the Cleveland Police Patrolmen’s Association endorsed a president for the first time ever — and it was Trump.  The first responders to stand and meet a citizen uprising… support the candidate whose followers who would be these protesters.  While not all police officers are lockstep with Trump, their union is and that’s cause for strife internally.

There is a simple way that any fear of an post-election uprising could be contained.  Key Republicans could come forward after each Trump statement about election fraud and rigged elections and say they believe in the voting process, and that just like in the Election of 1800, we can drag our candidates through the mud but we respect the outcome of the election. But their silence right now is tacit approval for their candidate and the possible mob in waiting.

And while a coups d’etat is unlikely when post-election the military will still be under the control of the sitting president, we should nonetheless be concerned.  Revolutions begin at the grassroots.

  • J.


Why aren’t we talking Congress in Election 2016?

Trump lies, Hillary is crooked!  And much like when Caesar fiddled while Rome burned, we are missing the bigger picture about the Election: CONGRESS.

The 113th Congress, which ended with the 2014 midterm elections, was seen as one of the most unproductive Congresses ever.  The 114th has been more “productive” by these standards, but it doesn’t pass the eye test.

  • Unsuccessfully attempted 62 times to repeal the same legislation passed in 2012.
  • Saw the Speaker of the House resigned over infighting amongst his own caucus.
  • Coverage of the 8 Benghazi hearings, over 4 dead Americans and a terrorist attack, lasted for years but produced no “smoking gun”of wrong doing by the Secretary of State at the time. By contrast, there was ONE investigation into the Financial Crisis of the mid 2000s which cost Americans more jobs and lost income than the Benghazi situation.
  • Seven months have passed since Justice Antonin Scalia died.  The White House produced a candidate within a month, but the Senate refuses to even hold hearings, which according to most Americans is a failure to fulfill their Constitutional duty.

Lest this be seen as a “partisan” shot at Congress, allow some clarification.  Whether or not a Congress likes a law, it has every right to repeal one.  But when there is no change in the President nor the make up of your body, attempting to pass a repeal is futile and a waste of taxpayer money.  One Benghazi hearing would have been plenty, and if you are a hard partisan, I’ll grant you a second investigation.  But when you continue to create them for the sole purpose of trying to bring negative press against a potential (at that point) presidential candidate, you waste the people’s money.

But don’t take my word for it. The American people have a horrible view of Congress, among its lowest ever, with barely one in five American feeling positive about the body. Congress is simply awful at the job they have been given by the Constitution.

And yet 95% of Congress will be re-elected without much of an effort. This falls at the feet of the TV media, who for whatever reason, feels the only political story worth chasing is about the Presidency.  Oh for a half hour on cable news ranting about Congress instead of baiting, attacking and supporting the Presidential candidate of your outlet’s leaning.

But this week, just like usual, the problem with Congress went under the radar screen.  They attempted to pass a bill that would allow Americans to sue Saudi Arabia over September 11th.  The President vetoed and Congress jumped to action and overrode that handily.  This was the first override in Obama’s 8 years in office.  But the very next day Congress said, hey… wait a minute… we goofed… and blamed the President for their actions.

Just one day after these lawmakers led the first override of a veto during Obama’s presidency they publicly called for making changes to the law. But even as they admitted they agreed with some of the White House’s concerns, GOP leaders quickly blamed the President for “dropping the ball” for failing to engage with Congress on the legislation before it passed. – CNN

So Congress wants the President to do their job too?  It must be easy to be a member of Congress. Just show up to committee hearings, nod your head, ask the questions that are prepared for you by your Caucus, then vote the party line. Then you go home and pretend to care about your constituents, knowing that your district was drawn in a way that will get you re-elected without much effort. Your campaign has been funded by corporations so that you will handily out-spend your opponent. Even if you are a terrible member of Congress, life will be good for you.

And why do we keep sending them back while putting the Presidency on a higher standard?