Thoughts for the morning after

You can’t always get what you want. But you get what you need:

1. The House. If we didn’t get past 218, the ACA and more would have been in huge trouble.

2. The House committees’ powers to subpoena, to hold public hearings, to hire Mueller if he is fired, then impeach. So Mueller has more job security than ever.

3. The overall national House vote was Democratic +8.5, a huge 54-46 split. I have always worried about Trump’s re-election chances. I am less worried today. That 54 percent, much of it booming in the swing states Trump won, is a strong showing for 2020, and you can’t gerrymander away that majority.

Look where Dems did well: the key 2020 battlegrounds. PA and Michigan swung back solidly. Wisconsin voted out Scott Walker (who had survived repeated recall attempts). Hillary’s purple states VA, NH, CO and NV stayed solid.

Those 7 states are the road to victory.

Am I disappointed about Beto/Cruz, Abrams/Kemp, Gillum/DeSantis, and the Senate? Of course. Painfully disappointed!

But let’s take a lesson that the country isn’t persuaded that Trump is a criminal, and we need to proceed thoughtfully and incrementally with investigation. Don’t rush impeachment at all. Maybe don’t impeach at all, given no chance of Senate 2/3 removal. Focus on winning 2020. Don’t impeach Kavanaugh. Stop talking about increasing size of Supreme Court. (We couldn’t even increase our own Senate share). But absolutely investigate Trump and all his co-conspirators. Use the House committees to get information and publicize it. But remember that much of the country doesn’t see these scandals the way we do. We need to focus on persuasion and outreach for 2 years – and every year thereafter.

2018 Predictions

All before exit polls are opened at 5:20. See my posts below for analysis and viewing guide for House here and Senate here.

House: I predict the Dems net +40, win 235 seats to 200.

Senate: Dems 51-49. Hold all seats but Heitkamp ND. Flip NV, AZ, and TN (my upset pick). Beto falls short by 1 point.

I’ll post Governors in a minute, but I’ll say Gillum wins, Abrams goes to run-off on Dec. 4.

2018 Midterms, Part II: Senate Sanguinity

OK, I’m an optimist by nature, but I’m not crazy. I know the odds are higher that the GOP gains two Senate seats than the Democrats gain the net +2 they need to retake the Senate.

The polls and the smartest poll analyzers saw a trend over the past week: a small but decisive shift back to the Democrats. And it’s not too hard to understand why: the MAGA pipebomber and the Pittsburgh and Louisville shootings were scary as all get-out (Get Out!) and Trump doubled down on the caravan insanity. The question is whether MAGA turnout also would get pumped up by Trump’s “fascistic” fear-mongering (conservative NY Times columnist Bret Stephens used the F-word, and he’s dead right).

The point is that the polling over the past few days and last night gave me a bit more hope for Clare McCaskill in Missouri and Phil Bredesen in Tennessee.

So here’s the path:

Hold five of six contested Democratic seats (mostly in very red states), in order of likelihood: Nelson (FL), Manchin (WV), Donnelly (IN), Tester (MT), McCaskill (MO). I’m not counting on Heitkamp. But the other five have better than 50% chances on FiveThirtyEight, some a lot better, and I like the recent polling trends in favor of Dems.

Flip three of four vulnerable GOP seats: Sinema over Martha McSally in Arizona, Jacky Rosen over Dean Heller in Nevada, Phil Bredesen over Marsha Blackburn in Tennessee. I love Beto O’Rourke and loathe Ted Cruz, and I’d seriously give my left __ for this race (seriously, let me know if I can still do that before the polls close). But until that procedure is available with a side of vasectomy, I’m not betting on it.  FiveThirtyEight has both Sinema and Rosen at just over 50% chance of winning, but Bredesen and O’Rourke are at about a 20% chance. But NBC and Harris had a poll out last night showing Bredesen up 3 and tied, respetively, and I have more trust in those polls than in the recent polls by Republican firms or GOP-leaning polls. (FiveThirtyEight stopped plugging in such late polls, but I take them into account). Meanwhile, Beto’s polling has him close but not close enough. If I had to bet on one upset, I’d pick Bredesen, even though FiveThirtyEight gives him just a bit lower of a chance than Beto has.

Sorry, I’m not counting on Espy in Mississippi, either.

The analysis this week has been a little oversimplified, but I get it: O’Rourke is legitimately a Texas homegrown politician, but his national celebrity and “Hollywood/Manhattan” fundraising became a double-edged sword and an easy if insultingly stupid target by someone with well-honed nasty skills like Ted Cruz. Meanwhile, Bredesen had been a popular Tennessee governor, a state-wide name with a folksy touch. I’d give the edge to Bredesen in this dynamic.

McCaskill closed badly with fearful caravan demagoguery, but I think the Greitens/Republican scandals this year in Missouri are a lot to overcome for Hawley.

And here’s how to watch it happen, in order of polls closing and FiveThirtyEight chances of a Dem win in fractional terms, and my predictions (and I’m bolding my big pivotal upset pick, Tennessee):

6 pm closing: Indiana: Donnelly over Braun. (538’s Odds 5 out of 7) (That’d be 1 of 5 D holds)

7:30 pm closing: West Virginia: Manchin over Morrissey. (Odds 7 out of 8) (That’d be 2 of 5 holds)

8 pm closing: Florida: Nelson over Scott (7 out of 10) (3d of 5 holds)

Tennesee: Bredesen over Blackburn (1 in 5 chance). (Big upset, 1st of 3 flips)

Missouri: McCaskill over Hawley (4 out of 7) ( 4th of 5 holds)

Texas: Cruz over O’Rourke (2 out of 9) (no flip)

Mississippi: Hyde Smith over Espy (sorry)

9 pm: North Dakota: Cramer over Heitkamp (1 in 4 chance, the inverse of Montana) (no hold)

10 pm: Montana: Tester over Rosendale (3 in 4, the inverse of North Dakota) (5th of 5 needed holds)

Arizona: Sinema over McSally (5/8) (2d of 3 flips)

Nevada: Rosen over Heller (4/7) (listen to Nevada expert Jon Ralston on this race. He called it for Rosen) (3d of 3 needed flips).

And if all of that happens, or if we are pleasantly stunned by Heitkamp, Beto, or Espy to offset another loss, then that’s how the Democrats would win the Senate.

“Faithful Execution” and Presidential Power, forthcoming 2019

Andrew Kent, Ethan Leib and I will be publishing this paper, “‘Faithful Execution’ and Article II” in the Harvard Law Review this spring. We explored for the first time the deep and overlooked historical origins of the two “faithful execution” clauses of the Constitution – in the Take Care clause and in the Presidential Oath – through centuries of English and colonial American usage for officers, up through the Convention and Ratification Debates. These clauses are cited by many to support expansive presidential power, but in historical context, their original meaning was to limit presidential discretion with duties of care, loyalty, diligence, and good faith that closely resemble modern fiduciary duties.

The article has implications for many presidential powers that have become relevant in recent years (and not just for Trump, but also for Clinton, Bush, and Obama, too). For example, the duty of faithful execution would limit the pardon power, the firing/removal power, the power to suspend and not to execute statutes, and the abuse of power to self-deal. This historical evidence also may suggest that modern private fiduciary duties emerged from English statutes imposing duties of care and loyalty on public officials.

The full paper is linked above. The abstract is below. An earlier Washington Post op-ed from last March more concisely set out an earlier suggestion of these historical links, but this research alters that hypothesis with deeper research.

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

2018, Part I: My outlook and viewing guide for the House

The bottom line for me is that getting to 218 in the House will be enough for me Tuesday night, because 218, a majority, is enough to control every House committee, and thus control over subpoenas backed by the force of law, and enough to start public hearings under oath. And if Trump fires Mueller or Rosenstein, those committees could hire either or both to continue their investigation with sufficient legal tools. I expect Sessions to be gone by January 2019, though I’d guess that Mueller is far along that as long as he is on the job in early 2019, he can reveal enough about Trump’s criminal conspiracy. But a House committee is a solid back-up.

So here is the path I see to 218, a net of +23 seats on top of the Dems’ current 195, based on the timing of when polls close.

I have created a list of top Democratic pick-up opportunities by combining 3 sources: the Cook Political Report’s likely/leaning/toss-ups; the 25 districts won by a GOP representative but also by Hillary Clinton; and FiveThirtyEight’s aggregated polling. The list includes a total of 52 districts, with 32 as “key pick-up opportunities” for Democrats, plus three vulnerable districts for Democrats.

The Cook Political Report labels 18 GOP seats that are currently “likely” or “lean Democratic.” There are two Dem seats that are currently labeled “likely” or “lean Republican.” Let’s say that’s a net +16. These are marked “L.”

Meanwhile there are 30 GOP seats that are labeled “toss-up” and just 1 Dem seat that’s a toss-up. If the Democrats win most of their “likely/lean Dem” seats (let’s say net +13), and a third of their toss-ups (+10), that’s enough for a majority. These are marked “T.”

There are 25 House seats that Republicans won but Hillary Clinton also won in 2016. Those should be especially winnable — and just about the right number to win the House, even if the Dems lose their two vulnerable seats.  On this list, they are marked “H.”

And I add a few additional states identified as roughly comparable pick-up opportunities by, which I label with the site’s percent chance of Dem pick-up. This list of 53 districts is roughly organized by closing times, from East to West.

Again, the code is: Bold, key pick-up opportunity (538 has chance > 50%) = 32 total.

L: Likely/Lean. T: Toss-up. H: Hillary won the district. Fraction: 538’s chance of Dem win.

CLOSING 6pm-7pm ET:
FL-15 Carlson/Spano: T (3/7)
FL-26 Powell/Curbelo: T/H (5/9)
FL-27 Shalala: L/H (6/7)

VA-02 Luria/Taylor: T (1/3)
VA-07 Spanbarger/Brat: T  (3/7)
VA-10 Wexton/Comstock: L/H (8/9)
GA-06 McBath/Handel: T (1/2)
GA-07 Bourdeaux/Woodall (1/6)
KY-06 McGrath/Barr: T (4/9)
OH-12 O’Connor/Balderson: T (1/3)
NC-09 McCready/Harris: T (4/9)
NC-13 Manning/Budd: T (3/8)
CLOSING 8pm-9pm ET
ME-02 Golden/Poliquin: T (5/8)
NY-02 Shirley/King (2/7)
NY-19 Delgado/Faso: T (3/5)
NY-22 Brindisi/Tenney: T (1/2)
NY-24: Balter/Katko: H (1/6)
NY-27: McMurray/Collins (1/4)

NJ-02: Van Drew/Grossman L (49/50)

NJ-03 Kim/MacArthur: T (5/9)

NJ-07 Malinowski/Lance: T/H (7/9)
NJ-11: Sherrill/Webber L (6/7)

PA-01 Wallace/Fitzpatrick: T/H (4/7)

PA-05: Scanlon L/H (99/100)
PA-06: Houlihan L/H (99/100)
PA-07: Wild/Nothstein L/H (19/20)
PA-10 Scott/Perry: T (1/3)
PA-17: Lamb: L (19/20)
MI-08 Slotkin/Bishop: T (2/3)
MI-11: Stevens/Epstein: L (4/5)
IL-06 Casten/Roskam: L/H (1/2)
IL-14 Underwood/Hultgren: T (7/10)
MN-02 Craig/Lewis: L (6/7)
MN-03 Phillips/Paulsen: L/H (6/7)
IA-01 Finkenauer/Blum: L (19/20)
IA-03 Axne/Young: T (7/10)

KS-02 Davis: T (5/8)
KS-03 Davids/Yoder: L/H (6/7)
TX-07 Fletcher/Culberson: T/H (1/2)
TX-23 Ortiz-Jones/Hurd H (2/9)
TX-32 Allred/Sessions: T/H (3/8)
CO-06 Crow/Coffman: L/H (8/9)
NM-02 Torres-Small: T, (4/9)
CLOSING 10p-11pm ET
UT-04 McAdams/Love: T  (5/8)
AZ-02 Tipirmeni: L/H (2/9)
WA-08 Schrier/Rossi: L/H (2/3)
CA-10 Harder/Denham: T/H (7/10)
CA-21: Cox/Valadao: H (1/5)
CA-25 Hill/Knight: T/H (5/8)
CA-39 Cisneros/Kim: T/H (4/7)
CA-45 Porter/Walters: T/H (5/8)
CA-48 Rouda/Rohrabacher: T/H (5/9)
CA-49 Levin/Harkey: L/H (29/30)
Dem seats at risk:




Thoughts after the Pittsburgh and Louisville Shootings

I posted this on Facebook last Monday morning right after the Pittsburgh shooting. I’m belatedly posting here:

There is so much to say that is too hard to say, but it must be said. We mourn, and we work harder than ever to fight the fascists.

First, I want to note another racist shooting earlier this week in Kentucky that has been overlooked. A white supremacist executed a black grandfather in front of his grandson in a grocery store, then shot a black woman in parking lot, declared his racism, after trying to break into a black church. You could read about them in the link here.

It is time to be honest and loud about something many of us have known for a long time, but have been too polite or too collegial to say.

1. We already knew Trump is a racist, but we also need to speak out about his anti-Semitism.

2. Trumpism is fascism.

3. Trump engages in stochastic terrorism.

4. We need to explain this to people: to Trump supporters, to Republicans who think they can separate their party from Trumpism, and to many people who engage in “both sides” false equivalence. Enough.

It’s time to recognize that we are living in Weimar America. There is a fascist in the White House, enabled by Vichy Republicans. Are there good Republicans out there? Absolutely. But like everyone else, they need to speak out and organize against Trump. The New Hampshire primary and the Iowa caucus of 2020 are just 14 months away. I’m talking to my friends about Democratic presidential candidates. If you’re a Republican who is not yet talking about whom to support against Trump in 2020, then you are enabling fascism.

I’ve been posting about “stochastic terrorism” over the past year. “Stochastic terrorism” is defined as “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted.” We had three episodes of stochastic terror last week, affected by Trump’s racist and dehumanizing politics. I’ll be writing more about Trump, his anti-Semitic signals, and the fine line between white nationalism and fascism soon.

But the bottom line is that we Jews have a special responsibility. The media might overlook the racist execution of black people, and it certainly participated in the fear-mongering about the caravan of brown people (asylum-seekers, like our families fleeing Nazi Europe, like Danya’s grandparents, like my great-grandfather fleeing Russia to Alabama. We Jews were once considered brown and dirty, too. And to many more in America than we’d like to think, we are still brown and dirty and sub-human). But the media listens to us more than they listen to the voices of black and brown people.

We aren’t politicizing a tragedy.

It was already political.

It was political when Trump retweeted an anti-Hillary post by an anti-Semite with a huge Jewish star on a background of dollar bills.

It was political when he and his sons embraced “the Deplorables” and the symbol for the white nationalists, Pepe the Frog, a signal of racist and anti-Semitic hate.

It was political when Trump wouldn’t disavow David Duke.

It was political when his closing campaign ads demonized a series of specific Jewish individuals – Soros, Yellin, Blankfein – as evil Wall St. types.

It was political when Charlottesville marchers chanted “Jews will not replace us,” and Trump said they were “good people” on both sides.

It was political when he continued to demonize Soros and (((globalists))), even on the day the MAGA bomber was arrested last week in Florida.

[update: The day immediately after visiting Pittsburgh,Trump continued to fear-monger and spread the same conspiracy theory that the Pittsburgh shooter cited, that Soros was funding the caravan.]

And it was political when he called for the death penalty for the innocent Central Park Five.

And it was political when he made the dehumanization of Muslims and Latinos his campaign platform.

And it was political when he said Mexicans coming to American were “rapists,” “drug-dealers,” and “criminals.”

It was political when he demonizes peaceful black protesters as “sons of bitches.”

I could go on and on.

The demonization of Muslims, blacks, Latinos, and Jews – the Trump platform – has always been political. And events like Louisville and Pittsburgh and the MAGA bomber are inevitable. We aren’t politicizing them. We are saying, “Stop politicizing us – our souls, our lives, our parents, our grandparents, our kids, our right to exist. ENOUGH.”

When they go low, we still need to go high. But going high now means LOUD AND DIRECT AND FIERCE AND FEARLESS.

Fight back with dignity. Let’s show the neo-Nazis that they are right to fear Jewish power. The political power of speech, the power of our experience over 2000 years surviving hate and only getting stronger, the power of organization, the power of the vote, the power of public service, the power of supporting even more asylum seekers and refugees from all over the world. Thank God for those who protected us, and may we bless the memories of those many before us who were unprotected. It’s time to honor those memories by fighting back for ourselves and our demonized and brutalized brothers and sisters.

Don’t just vote. Volunteer. Help refugees. Organize. Make calls. Write. Speak out.

Tzedek tzedek tirdof. V’im lo achshav, matai?

Justice, justice, shall you pursue.

If not now, then when?

RT (Russian TV) is on the attack on #MeToo?

I just received this email from someone representing herself as an RT journalist. I can’t verify if she is who she says she is, but this is the redacted invitation:

Dear Mr. Shugerman, I am writing on behalf of RT TV – 24/7 English language news station in Moscow broadcasting internationally. My name is XXXX, I am a producer of the panel discussion program called CrossTalk. I have the honor to invite you to our program.

We’re recording it on Tuesday, September 25 at 10 AM ET Details on the topic are as follows: ? What does the movement tell us about the confirmation process of Brett Kavanaugh? Have we given up on due process and the presumption of innocence? Is an accusation now equivalent to guilt? Does an accuser now have the right to determine how an accused is investigated? Nominally speaking, anyone can accuse anyone else of wrongdoing. However, what responsibilities should an accuser accept when making an accusation?

Agree or disagree: The movement is causing deep, dangerous, and maybe irreversible damage to society. It goes without saying that we will be grateful to have you on the program! Looking forward to hearing from you. Thank you very much in advance! 

— Sincerely, XXXX Producer CrossTalk RT [phone redacted]