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Bernnie Federko

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Predecessors try to fill void left by DeVos

Two former education secretaries, of both parties, are taking leads in talks about safely returning children to school in the fall, Alayna Treene writes.

  • Why it matters: The engagement by Margaret Spellings and Arne Duncan contrasts with the lack of visibility by Education Secretary Betsy DeVos since the start of the coronavirus pandemic. Some education leaders complain of a vacuum in federal leadership at a time when schools need help.
Spellings, who was education secretary under President George W. Bush, and Duncan, who served under President Obama, are becoming more active:

  • Duncan leads a weekly call with superintendents, and has been helping distribute meals. (See a video of Arne Duncan talking to Alayna Treene.)
  • Spellings — former president of the UNC System, now CEO of the nonprofit Texas 2036 — said DeVos "has not had as high a profile as some of the others of us. And that's been consistently true during her service ... I think people want to see her." (See a video of Margaret Spellings talking to Alayna Treene.)
DeVos declined an interview request.

  • In an emailed statement, spokeswoman Angela Morabito said that “Secretary DeVos hasn’t stepped back — she’s stepped up."
  • DeVos' office provided Axios with a five-page list detailing her COVID-19 response.
The bottom line ... Randi Weingarten, president of the 1.7 million-member American Federation of Teachers, tells Axios:

  • "There's three national crises that are going on — a pandemic, a recession and systemic racism. All of these things are going to show up in the anxiety that kids have when they walk through the doors in September."
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Operatic ending this eve. ...but what the Jesus FUCK? Hallelujah? Leonard Cohen is screaming. ...a hundred floors above me, in the tower of song.


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[Lead article at Electoral-Vote.com]
Ruth Bader Ginsburg Passes Away

Associate Justice Ruth Bader Ginsburg, one of the towering figures of Supreme Court history, passed away at the age of 87 on Friday. She fought the good fight against a host of maladies for more than a decade, but the latest recurrence of cancer proved to be too much to overcome. May she rest in peace.
Ginsburg was the second woman appointed to the Court, and served just over 27 years. She was also a brilliant legal mind who authored a number of important opinions, including the ones that forbade discrimination on the basis of sex at military schools, and that prohibited discrimination against those with mental disabilities. The Justice was a throwback to a previous era, when the Supreme Court was less overtly politicized. After nomination by Bill Clinton, she was approved 96-3 by the Senate, a tally that would be inconceivable for nearly any justice today, particularly one so liberal as she. Ginsburg was famously collegial with all of her colleagues and, despite their polar opposite political philosophies, had an especially close relationship with Justice Antonin Scalia. Both of them loved Italian operas and they often went shopping together when they traveled. They even spent New Year's Eve together many times. One time when they rode an elephant together in India, Scalia was up front. When asked about feminism, Ginsburg quipped: "It's about weight distribution."
Uniquely among SCOTUS justices, Ginsburg emerged in the last decades of her life as a pop culture and feminist icon under the moniker "The Notorious RBG" (a play on the stage name of rapper Christopher Wallace, a.k.a. "The Notorious B.I.G."). She embraced her unexpected celebrity with good cheer, and kept a supply of Notorious RBG t-shirts to give out as gifts. For a fuller biography of Ginsburg, we recommend The New York Times' obituary written by Linda Greenhouse, a Pulitzer Prize winner who covered the Supreme Court for the Times for three decades.
And now, the politics of her passing. You're going to hear a couple of phrases a lot in the next couple of months, so let's deal with those first:
  • The "Biden Rule": This comes from a speech that then-senator Joe Biden gave on the floor of the Senate on June 25, 1992. Following the bitter Clarence Thomas hearings, and concerned that the process of approving justices had become too politicized, he opined that in an election year, the approval process should be postponed until after the election. Note that he did not say "until the next inauguration." Note also that he was speaking hypothetically, as there was no open spot on the Supreme Court when he made the speech. As chance would have it, the next seat that did come open was the one Ruth Bader Ginsburg was appointed to on August 10, 1993.

  • The "McConnell Rule": The "Biden Rule" did not actually acquire that name until Senate Majority Leader Mitch McConnell (R-KY) decided that he needed cover for blocking Barack Obama's appointment of Merrick Garland to the Supreme Court. At that point, McConnell announced that he could not, in good conscience, consider a Supreme Court nominee in an election year, and that the process would have to wait until the new president and new Congress were sworn in.
Already prominent Democrats, including Biden and Obama have called on McConnell to observe the McConnell Rule, and to hold off until next year on replacing Ginsburg. It was also Ginsburg's dying wish; shortly before her passing, she told her granddaughter: "My most fervent wish is that I will not be replaced until a new president is installed."
McConnell has already responded to these folks. In a statement that spent 102 words honoring Ginsburg and 112 words justifying his plans, the Majority Leader declared: "President Trump's nominee will receive a vote on the floor of the United States Senate." McConnell has previously explained that the McConnell Rule only applies to lame-duck presidents like Barack Obama, and not to presidents who might plausibly be reelected like Donald Trump.
And now, let's talk about Trump. He learned of Ginsburg's demise right after a rally and, to his credit, he said all the right things, declaring that "she led an amazing life." That said, Trump is a walking id who is unable to defer gratification for one day, much less a couple of months. He's also desperately casting about for "wins" to help him in his reelection bid. He will want to nominate Ginsburg's replacement as rapidly as is possible, likely sometime this week (with Amy Coney Barrett the odds-on favorite).
Assuming Trump follows through and that Barrett is appointed, it may help the President, at least a little. The "win" would excite his base and, more importantly, some of the "hold your nose and vote for Biden because you're also voting for the Supreme Court" voters might just skip the election. On the other hand, the "suburban women" that the two parties are fighting over will not be happy about a justice who might vote to overturn Roe v. Wade (which Barrett, a self-described "very orthodox Catholic" would probably do). So, this might blow up in the President's face, even if things go exactly as he wants.
If Trump does move forward with a nomination (the odds of which are surely above 99%), getting Barrett (or anyone else) confirmed before November 3 is going to be a tall order. The problem here is the Senate Republican caucus. Quite a few of them are facing tough reelection campaigns this year, or will be in 2022. They know that their opponents will turn "How come it's one set of rules for Democratic presidents and another set for Republicans?" into a weapon, and that the seeming hypocrisy therein could be very damaging. Already, four Republican senators have said they would not be willing to vote on a new justice before the election: Susan Collins (ME), Lisa Murkowski (AK), Chuck Grassley (IA), and Lindsey Graham (SC). Note that they all said this weeks or months before Ginsburg died, so they were speaking only hypothetically. Now that the rubber has hit the road, and the arm-twisting will be intense, they could change their tunes. On the other hand, it wasn't that hypothetical; Ginsburg's poor health was well known. Further, there may be other members leery of playing with fire—Thom Tillis (R-NC), or Cory Gardner (R-CO), or Dan Sullivan (R-AK). Assuming the Democrats stick together, all it takes is four Republicans to foil McConnell.
One possible solution for the Majority Leader would be to wait until after the election. That would insulate the senators who are up this year, and would observe the Biden Rule. However, if Donald Trump loses, then he would be a lame duck, and McConnell would have to twist himself into pretzels explaining why the McConnell Rule doesn't apply. The Majority Leader has no problem with that; if the game Twister was an Olympic event, he'd win the gold medal. But the vulnerable 2022 senators might not be excited to play along. Further, Trump would go on a months-long rampage if the Senate refused to consider his nominee immediately.
But if McConnell waits until after the election, there is another problem he has to consider. Mark Kelly is leading Sen. Martha McSally (R-AZ) by close to 10 points. He is the likely winner there. One feature of note here is that technically, this is a special election to fill out the rest of John McCain's term. As a consequence, it is possible that if Kelly wins, he could be sworn in as early as Nov. 30, giving McConnell even less room to maneuver if he waits until after the election to have the Senate vote.
There is one other possibility for McConnell we will note. He could bring up the nominee before the election, but give three vulnerable senators (say, Collins, Tillis, and Graham) permission to vote "nay." Though we mention this possibility, we don't think it's a great option politically, because it walks a very fine line, and vulnerable members who don't get to vote "nay" may be upset. Further, a Supreme Court justice who is approved by virtue of a vice-presidential tiebreaker is going to be somewhat wanting in the legitimacy department. And finally, someone like Collins is trying to keep both pro-Trump and moderate voters in the fold. She really doesn't want to cast any vote, since she's more likely to lose support than gain it no matter what side she comes down on.
So, that is the calculus on the Republican side, as we see it. Now let's talk about the Democratic side. Broadly speaking, the Party—from Joe Biden on down—has to figure out very quickly how aggressively they want to go with this. Do they want to play hardball, while also promising radical reforms like court packing? That would please many Democrats, but might scare away moderates and Never Trump Republicans. Or, do they want to just stick with criticism of Trump, McConnell, and the process, without taking or promising any affirmative action of their own? That will keep the moderates on board, but could infuriate a lot of Democratic loyalists, especially on the left.
In terms of specific options the Democrats have before them, we can see four:
  • Compromise: This is probably a little Pollyanna-ish, but we're trying to be comprehensive here. A sixth conservative justice is not quite as important as a fifth to McConnell, or to Trump. Meanwhile, McConnell is looking at the possibility of his party losing the White House, and possibly also the Senate. There may be a deal to be made here, along the lines of "We won't kill the tax cut if you honor the McConnell Rule."

  • Parliamentary Tricks: If the Democrats remain unified, and if their spines remain in place, they do have the means to gum up the works of the Senate. Pulling that off for six months or a year would be tough, but four or five weeks? Maybe. For example, the Senate has a spending bill coming up that, by the rules of the chamber, gets priority over other matters. Minority Leader Chuck Schumer (D-NY) could propose a gaggle of amendments, and insist on a bunch of debate, and otherwise make a pest of himself. The House could also play a role here. When the fill to fund the government comes up shortly, suppose House Democrats insert a provision that no judicial appointments may be considered by the Senate within 90 days of a federal election.

  • Court Packing: This is the one that everyone's going to be talking about for weeks and weeks. Assuming the Democrats get at least 50 seats plus the White House in November, and assuming they are willing to kill the Senate filibuster, and assuming they can keep their whole caucus unified behind such maneuvers, it is within the power of Congress to change the composition of the Supreme Court. They could pass a new Judiciary Act adding four more SCOTUS seats and reclaiming the majority on the Court, since a hypothetical President Biden would surely appoint four liberals. Oh, and note that the bill would have to pass both chambers, so this option is not available to McConnell as long as the Democrats control the House.

    Of course, court packing is fraught with difficulties. The fact that Franklin D. Roosevelt, one of the most talented politicians the world has seen, couldn't get it done should be cause for significant pause. Further, if successful, it could initiate an "arms race" in which the Republicans would add a bunch of seats the next time they get control of the White House and both chambers of Congress. Court packing would also undermine the integrity of the Court, and could plausibly alienate some significant portion of the voting public.

    If the Democrats travel this path, they may want to go with some milder version. It's pretty clear that the Supreme Court approval process is broken, as myriad problems unanticipated by the Founding Parents have presented themselves. The Democrats could try to rally support for "commonsense" reforms, perhaps even adopted via constitutional amendment. Mandatory retirement ages, or SCOTUS term limits (20 years?), or clearer rules for when and how nominees may be considered are all possibilities. It's worth noting that the process of electing senators was completely overhauled, under similar circumstances, in 1913.

  • Lawsuit: Nobody seems to be discussing this option, but this is where we think the real opportunity is for Team Blue. Let's start with a couple of absurd examples. Imagine that McConnell declares that all deliberation on SCOTUS nominees will be done in the men's locker room of the Senate gym. Or maybe he says deliberation will be done in six feet of water, such that only members 6'4" or taller will be able to breathe. These things, if they did happen, would be obvious abuses of his discretionary authority as Senate Majority Leader. Put another way, McConnell has a lot of power, but there are limits to what he can do, over and above what is spelled out in the rules of the Senate.

    Meanwhile, keep in mind that in the Senate, precedents are binding. It has always been this way because the very first senators and representatives operated in the tradition of the English parliament and of English common law. This fact is what makes the filibuster-killing "nuclear option" possible; if the 60-vote filibuster is overturned once on a point of order (which requires just 51 votes), then a new precedent is established and it's overturned forever.

    Taking these things together, the Democrats could argue that when he applied the McConnell Rule to Merrick Garland, the Majority Leader established a precedent that is just as binding as an actual Senate rule. Senate Parliamentarian Elizabeth MacDonough might (or might not) be asked to weigh in, but she would likely agree. Either way, Senate Democrats could file a lawsuit in federal court arguing that by disregarding the McConnell Rule, McConnell is guilty of an abuse of his discretionary authority. It's plausible that the Democrats might even prevail on the merits. More importantly, however, as we have learned many times in the past four years (see taxes, Donald Trump's; subpoenas, congressional), it generally takes a while for the various levels of the Court system to make their rulings. Toss in the holiday season, when the courts are closed, and it's entirely possible that such a lawsuit could run out the clock on Donald Trump's term if he is not reelected.
Those are the options we see for the Democrats, who aren't quite as handcuffed as you might think. And if they can indeed drag the process out, then we would guess the electoral calculus swings way back in the direction of Joe Biden. The thought of probably replacing RBG undoubtedly motivated a lot of Democratic voters. Now that it's definite, the motivation would be higher, assuming the seat remains open long enough.
Anyhow, it's not quite right to call Ginsburg's passing an October Surprise, since it's not October yet, and her shaky health made it not that much of a surprise. Still, it's yet another curveball in an election season that has already been chock full of them. The maneuvering that goes on in the next month or so will be quite the spectacle for politics-watchers. (Z)
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