Zero Hedge: Empty Supreme Court Seat “Resets the Race” for President

Yesterday evening Supreme Court Justice Ruth Bader Ginsburg passed away. This event will change the Presidential race and perhaps further fan the flames of division around the country. Expect to see and hear much commentary/propaganda in the months ahead. Here is a collection of commentary over at Zero Hedge – “This Resets The Race” – SCOTUS Opening Creates Opportunity For Trump To ‘Change The Subject’ Before Nov. 3

We’re still waiting for the ‘October Surprise’ that Democrats are hoping will derail Trump’s quest for a second term (although it didn’t exactly work out that way back in 2016), but the passing of Ruth Bader Ginsburg last night has certainly shaken things up, with only 45 days left until the election.

 

VP Joe Biden sounded dejected last night as he delivered his statement on Ginsburg’s passing.

Biden, and his former boss, Barack Obama, have urged the GOP to wait until after the election to move ahead with the next SCOTUS nominee. As Biden said in the clip above: “There is no doubt – let me be clear – that the voters should pick the president and the president should pick the justice for the Senate to consider,” Biden told reporters late Friday. “This was the position that the Republican Senate took in 2016” and “that’s the position the United States Senate must take today and the election’s only 46 days off.”

According to Bloomberg, GOP strategists are already chattering about how the SCOTUS situation will give Trump the opportunity to change the subject away from the coronavirus outbreak that’s hobbled his economy, and toward what has been on of the GOP’s biggest accomplishments over the past 10 years: packing the federal courts with conservative justices.

It’s an area where Dems have ceded far too much ground, allowing the Federalist Society to work in concert with successive Republican administrations to ensure a steady supply of ideologically-tested conservative justices.

Ironically, Bloomberg quoted a top aide to former Democratic Senate leader Harry Reid saying that Dems need to “wake up” to the importance of the judicial branch. Of course, as we reported earlier, it was Reid who opened the door to the “nuclear option” by changing the Senate rules to allow President Obama to confirm cabinet appointments with a simple majority.

For Trump and his Republican allies in the Senate, the vacancy lets him change the subject away from the coronavirus pandemic that has imperiled his odds for winning a second term. Now, they can offer their base a chance to tighten the conservative majority on the high court for years to come.

Yet Biden and Democrats can seize on the moment, too, invoking Ginsburg’s legacy to spur turnout on Nov. 3 and give liberals a fresh reason to vote out Trump. Democrats had contributed more than $20 million to ActBlue in four hours after Ginsburg’s death was announced.

Jim Manley, a former top aide to ex-Senate Democratic leader Harry Reid, said he hopes Democrats “wake up” to the importance of the Supreme Court.

The reality is that Republicans have always taken judicial nominations more seriously than Democrats,” he said. “My hope is that that actually changes with this shocking news. Whether it does or not remains to be seen.”

Mitch McConnell didn’t waste any time Friday night. Mere hours after RBG’s death, McConnell released a statement promising a vote on the Senate floor and calling on GOP Senators to back whoever is appointed by Trump to fill the vacancy. Right now, the smart money is on 7th Circuit judge Amy Coney Barrett, a conservative Catholic and a runner-up during Trump’s last two nominations.

GOP strategists are heralding this as an opportunity for Trump to flip the script, and put Democrats on the defensive.

“This resets the race,” said Republican donor Dan Eberhart. “We are not running solely on the Covid response and the economy anymore.”

Biden has rarely spoken about the Supreme Court except to commit to nominating a Black woman to the bench if he gets the opportunity.

Now he has to seize on the issue as well, and Democrats were already showing signs they were willing to join him.

Trump was widely expected to move ahead with a nomination, and Senate Majority Leader Mitch McConnell quickly vowed that the Senate would vote on it.

To be sure, there’s also a strong possibility that RBG’s death motivates more Democratic voters to turn out to the polls. Few things can cut through the noise like the creation of another ‘martyr’.

Early reports suggest RBG’s death triggered a flood of donations to Democratic groups like ActBlue and “Demand Justice”, with tens of millions of dollars flowing into their coffers overnight. GOP pollster and Trump critic Ed Rollins told Bloomberg that the gravity of the issue could drive voters to the polls in massive numbers. Typically, higher turnout is seen as a negative for Republicans.

It could also motivate more GOP voters to come vote in critical swing-state races down-ticket, including for the Senate.

“This will be the overarching issue in not just the 2020 presidential election, but also in several Senate races that may decide who controls the Senate in the future,” said Ed Rollins, a Republican strategist who heads the pro-Trump Great America PAC.

“This will drive voters to the polls in massive numbers on both sides,” Rollins said. “It will also dominate the airways and certainly will be a major factor for the rest of this campaign.”

Still, the vacancy may not necessarily be a boon for Trump because it is likely to galvanize voters on both sides of the aisle, said Brendan Buck, a Republican strategist.

“It will help shore up constituencies he needs. Battle lines are going to be drawn. But it will fire up folks on both sides, and my guess is it’s a wash at best for the president,” he said.

The Hill was slightly more pessimistic, pointing out that several influential Republican Senators were conspicuously silent last night, while others promised to back Trump’s nominee without delay.

McConnell can’t afford to lose three GOP votes in what could be remembered as one of the most important votes in that chamber in history. Two GOP senators – Alasaka’s Lisa Murkowski and Maine’s Susan Collins – released statements mourning Ginsburg…

…but saying nothing about whether they intend to back McConnell and Trump. Both Collins and Murkowski were among a group of moderate senators who initially expressed doubts about Trump nominee Brett Kavanaugh, and later enabled Democrats to move ahead with a formal inquiry into allegations of sexually inappropriate behavior by Kavanaugh when he was in high school and an undergraduate student at Yale. Both have said previously that they wouldn’t support a SCOTUS vote so close to an election. Collins is facing tough reelection odds, as her vote in favor of Kavanaugh has been wielded effectively against her by her Democratic opponent, who is reportedly ahead in the polls. Maine House Speaker Sara Gideon currently holds 49% to the senator’s 44%, according to the Hill.

Murkowski has a long history of speaking out against a “double standard” of SCOTUS confirmation votes during an election year.

Murkowski told The Hill over the summer that attempting to fill a Supreme Court vacancy right before the November election or during a lame-duck session in December would create “a double standard” and she “would not support it.”

Murkowski pointed to Senate Republicans’ decision in 2016 to keep vacant the seat of late conservative Justice Antonin Scalia until a new president was elected in that year’s election. Then-President Obama nominated D.C. Circuit Court of Appeals Judge Merrick Garland to fill Scalia’s vacant seat in March of 2016 but he never received a Senate Judiciary Committee hearing or a vote.

“When Republicans held off Merrick Garland it was because nine months prior to the election was too close, we needed to let people decide. And I agreed to do that. If we now say that months prior to the election is OK when nine months was not, that is a double standard and I don’t believe we should do it,” Murkowski said. “So I would not support it.”

Another key vote is Sen. Mitt Romney (Utah), the only Senate Republican to vote to convict Trump on an article of impeachment.

Though he declined to speculate about what he might do if a vacancy emerged on the court in the months before the Nov. 3 vote, Sen. Mitt Romney could provide a third vote against Trump’s nominee (though a tie would of course be broken by VP Mike Pence).

A 4th GOP defection would sink the vote, assuming no swing-vote Dems step up and defect to the other side. However, that’s not exactly guaranteed. West Virginia Sen. Joe Manchin backed Kavanaugh, a vote that has proven tremendously popular in his home state of West Virginia.

Several reliably GOP senators will likely have their past statements used against them. Perhaps the most notable example of this is Lindsey Graham.

However, Graham has said he’s open to backing Trump’s nominee after getting some input from his constituents, of course. Chuck Grassley, who led the Judiciary Committee when it sunk Garland’s nomination, said at the time that he would do the same thing if the shoe were on the other foot. However, he too is expected to back Trump’s nominee.

After all, Trump has a powerful argument for filling the seat. A deadlocked Supreme Court ahead of what could be a contested election could risk a constitutional crisis that could have ramifications for societal cohesion.

Time is also an issue: It has taken an average of 74 days to confirm the last 10 justices appointed to the Supreme Court, ranging from 99 days for Clarence Thomas in 1991 (a process that was elongated by the Anita Hill scandal) to 50 days for Ginsburg in 1993.

Election Day is 45 days away, and the next Congress isn’t scheduled to take its seats for another 106 days. And given the general state of things in America right now, a lot could change in that time.

Alt-Market: Election 2020 – The Worst Case Scenario Is The Most Likely One

Brandon Smith at Alt-Market talks about this year’s Presidential election and what may happen in Election 2020: The Worst Case Scenario Is The Most Likely One

…For the past few month my suspicion is that there might not be an election at all. But let’s look at the factors that are in place:

1) Joe Biden, the Dem candidate, appears to have stage four dementia. Either that, or he is a very good actor. This is another situation where I am questioning WHY? Why would the establishment run Biden (like they ran Clinton), perhaps the worst possible choice if they hope to rally people against Trump and conservatives?

Maybe Trump is meant to stay in office for another four years, because Biden appears to have no capacity to hold the attention of an audience (again, unless his Alzheimer’s is an act).  That said, if the economic decline is severe enough into November, the election numbers could still be very close because of the backlash against Trump.  Close elections are the easiest for the establishment to manipulate one way or the other.

2) Leftists hate Trump so thoroughly that they would vote for anyone at this point just to get rid of him; but will this fervor be enough to sway moderate Dems to participate if Biden continues his displays of mental frailty?

3) The pandemic lockdowns and viral spread are likely to hit hard by November. Meaning, there is a chance that people will find it difficult to vote at all, unless the votes are handled by mail-in or by electronic means.

4) Electronic or mail-in voting will not be trusted by the public on either side. Whoever wins will be accused of cheating.

5) Civil unrest and violence is almost guaranteed in the lead up to the elections, which could frighten people away from voting booths if they are even in operation.

These factors and more lead me to predict that Election 2020 will be a contested election which ends with Trump staying in office but accused of usurping the democratic process. This outcome is the worst possible outcome and also the most advantageous for the globalist establishment.

The elites are even hinting publicly that this is about to happen. For those of you that have been reading my work for many years, the name “Max Boot” might sound familiar. In my article ‘How Globalists Will Attempt To Control Populations Post Collapse’, published in 2016, I outlined writings by Council on Foreign Relations member Max Boot on the Malaysian Model, a method he describes as the perfect strategy for taking control of a population and destroying an insurgency.

The model calls for the institution of city-sized concentration camps which are used to isolate a rebellion away from the general population. The population in these cities is then subjected to extreme tracking and control measures, while the military is sent out to rural areas to eliminate potential insurgent threats.

Well, Boot is back again, this time writing about how he thinks Donald Trump will try to “hijack” the presidency in 2020.

In an article for the Washington post titled ‘What If Trump Loses But Insists He Won’, Boot outlines a scenario that was “war gamed” by a group called the Transition Integrity Project. The group played out a scenario in which there is a razor thin victory for Joe Biden, followed by actions by Trump to keep control of the presidency through lies and legal wrangling. The group also predicted civil unrest leading to potential “civil war” as the fight over the White House expands.

This article is, I believe, an attempt at predictive programming by the establishment. They are TELLING US exactly what is about to happen. A contested election, civil war, martial law, economic collapse and the US will be destroyed from within.  If conservatives actively support unconstitutional levels of federal power or martial law, then the scenario becomes even worse.  By forsaking our foundational principles in order to “defeat the left”, we would be handing victory to the globalists.  We would be destroying our own movement’s reason for existing while the elites barely have to lift a finger.

The CFR and its long time goal of erasing US sovereignty would then be nearly complete. All that would be left is to ensure they they are the people that get to rebuild America from the ashes of all out domestic conflict and collapse. This cannot be allowed to happen.

I continue to predict that the plan is to destroy the US as we know it and blame conservatives in the process. With so many elites inhabiting Trump’s cabinet, this outcome would be easy for them to engineer. That said, the end game is not in the hands of the elites. It’s in the hands of conservatives.

The temptation for conservatives will be to fully embrace government power in order to stop the leftists, but if we refuse to support martial law measures, if we demand or assert alternative solutions (such as community based security), if we stand by our principles of limited government and if we fight back against the globalists specifically instead of only focusing on the political left, then there is a chance we can stop them from taking control. That said, if we bow to government power and hand over our freedom just to defeat the leftists, then we will lose the greater battle against globalism in the long run.

James Kunstler: Forecast 2020

In this somewhat lengthy article, author James Howard Kunstler makes some predictions for 2020 — political, economic and other. Kunstler’s main works have been on peak-oil and what that means to society and also urban and suburban development issues. It may or may not be of relevance, but Kunstler is a Democrat, though he has been described as “an angry, disaffected one.” That is mentioned here only because some read his acidic commentary on the impeachment charade and think that he is conservative, Republican, or pro-Trump — of which he is none.

…These diseases of mind and culture are synergized by an aroused political ethos that says the ends justify the means, so that bad faith and knowing dishonesty become the main tools of political endeavor. Hence, a venerable institution such as The New York Times can turn from its mission of strictly pursuing news and be enlisted as the public relations service for rogue government agencies seeking to overthrow a president under false pretenses. The overall effect is of a march into a new totalitarianism, garnished with epic mendacity and malevolence. Since when in the USA was it okay for political “radicals” to team up with government surveillance jocks to persecute their political enemies?

This naturally leads to the question: what drove the American thinking class insane? I maintain that it comes from the massive anxiety generated by the long emergency we’ve entered — the free-floating fear that we’ve run out the clock on our current way of life, that the systems we depend on for our high standard of living have entered the failure zone; specifically, the fears over our energy supply, dwindling natural resources, broken resource supply lines, runaway debt, population overshoot, the collapsing middle-class, the closing of horizons and prospects for young people, the stolen autonomy of people crushed by out-of-scale organizations (government, WalMart, ConAgra), the corrosion of relations between men and women (and of family life especially), the frequent mass murders in schools, churches, and public places, the destruction of ecosystems and species, the uncertainty about climate change, and the pervasive, entropic ugliness of the suburban human habitat that drives so much social dysfunction. You get it? There’s a lot to worry about, much of it quite existential. The more strenuously we fail to confront and engage with these problems, the crazier we get…

There’s an excellent chance that the Democratic Party will be in such disarray by summertime, that it may break apart into a radical-Wokester faction and a rump “moderate” faction. That would make the election somewhat like the 1860 contest on the eve of the first Civil War. The current crop of leading candidates — Biden, Sanders, Warren, Buttigieg — all look to me like horses that ain’t gonna finish. Michael Bloomberg could end up leader of the rump moderates, propelled by his inexhaustible bank account, but I doubt his appeal to the racial minorities and the new millennial voters Democrats depend on. I’m not sure he’s left with much else.

I’m convinced that Joe Biden is in still in the contest solely to avoid investigation. He’s already obviously not wholly sound of mind, and he’s not even in the White House yet…

the attempts at impeachment have a peevish Lilliputian flavor. Keeping it up —bringing a threatened second or third bill of impeachment with extra charges — will only reinforce Mr. Trump’s anti-fragility. Second to the economic issues is the question whether the firm of Barr & Durham will manage to pin some criminal responsibility on the people who undertook the RussiaGate coup against Mr. Trump — a ghastly mis-use of government power now celebrated by Democrats, who, you might recall, used to be against police states. A series of perp walks by the likes of Brennan, Comey, Clapper, and others could finally burst the bubble of credulity that the Mueller face-plant and the damning Horowitz report failed to achieve among the True Believers of Rachel Maddow…

Attorney General Barr: Checks and Balances Are Unbalanced

The following is an excerpt from a speech given by Attorney General Barr earlier this month to the Federalist Society’s National Lawyers Convention. In the speech, Barr expands on imbalances which have developed over time which he claims have weakened the office of the President so that it cannot properly balance against the Legislative and Judicial branches. He has some insightful things to say, so stick with it. I’m not sure buy the entire argument, but there is a lot of truth in here.

The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation.  They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership.  Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage.  They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures.  Where this had been the case, state governments had proven incompetent and indeed tyrannical.

From these practical experiences, the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness.  They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….”

While there may have been some differences among the Framers as to the precise scope of Executive power in particular areas, there was general agreement about its nature.  Just as the great separation-of-powers theorists– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct specie of power.  To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation.  But the Framers understood that Executive power meant more than this.

It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.  They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive.  For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as “Executive altogether,” subject only to the explicit exceptions defined in the Constitution, such as the Senate’s power to ratify Treaties.

A related, and third aspect of Executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster.  This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.

And, finally, there are the Executive’s powers of internal management.  These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.  Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power.

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.”  They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power.  Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision.  This is not “new,” and it is not a “theory.”  It is a description of what the Framers unquestionably did in Article II of the Constitution.

After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function?  The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power.  Alternatively, they could vest Executive power in a solitary individual.  The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government.  Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited the America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment…

I am concerned that the deck has become stacked against the Executive.  Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate.  More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.

When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive.

The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive.  The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess.  So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.

This prejudice is wrong-headed and atavistic.  It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that.  You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial.  Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary.  A watershed in this evolution was, of course, the Glorious Revolution in 1689…

The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers.  The idea at work here is that, because two branches both have a role to play in a particular area, we should see them as sharing power in that area and, it is not such a big deal if one branch expands its role within that sphere at the expense of the other.

This mushy thinking obscures what it means to say that powers are shared under the Constitution.  Constitution generally assigns broad powers to each of the branches in defined areas.  Thus, the Legislative power granted in the Constitution is granted to the Congress.  At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power.  The Executive does not get to interfere with the broader Legislative power assigned to the Congress.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority.  Let me first say something about the Legislature

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process.  The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office.  As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation.   How many times was cloture invoked on nominees during President Obama’s first term?  17 times.  The Second President Bush’s first term?  Four times.  It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government.  They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.  This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch.  More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits.  And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents.  I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.  But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such. ..

Click here to read the entire speech at the Dept. of Justice website.

Related:

Intellectual Takeout: The Deep State – The Headless Fourth Branch of Government

President Declares Intent to Sign a National Emergency Over Border

From Reuters

“I’m going to be signing a national emergency,” Trump said from the Rose Garden of the White House.

“We have an invasion of drugs, invasion of gangs, invasion of people, and it’s unacceptable,” he said.

The president said he would sign the authorizing paperwork later in the day in the Oval Office…

Nancy Pelosi, the Democratic Speaker of the House of Representatives, and Chuck Schumer, the Senate’s top Democrat, swiftly responded to Trump’s declaration.

“The president’s actions clearly violate the Congress’s exclusive power of the purse, which our Founders enshrined in the Constitution,” they said in a statement. “The Congress will defend our constitutional authorities in the Congress, in the courts, and in the public, using every remedy available.”

The president acknowledged that his order would face a lengthy legal challenge. “We’ll win in the Supreme Court,” Trump said…

Speaker Pelosi had previously threatened that the next Democrat President could declare gun violence a national emergency while Rep. Cleaver of Missouri said that such a President could declare climate change or income inequality as national emergencies.

“A Democratic president can declare emergencies, as well,” Pelosi told reporters in the Capitol. “So the precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans.”

…”Let’s talk about today: The one-year anniversary of another manifestation of the epidemic of gun violence in America,” Pelosi said. “That’s a national emergency. Why don’t you declare that emergency, Mr. President? I wish you would.

“But a Democratic president can do that.”