Yesterday the New York Times dropped another Trump tax return bomb: Trump has a previously undisclosed bank account in China.  If you don’t want to read the whole thing, here’s an abridged version at Forbes.  It begins:

A report from the New York Times reveals a decade of Donald Trump’s unsuccessful business activities in China, including an undisclosed bank account that paid nearly $200,000 in taxes, undermining his own exaggerated claims of Hunter Biden’s business dealings there, as well as his rhetoric that his Democratic opponent, Joe Biden, is soft on the country.

The Forbes story leaves out one of the most suspicious parts. Jonathan Chait:

The Chinese bank account belongs to Trump’s subsidiary firm, Trump International Hotels Management. While in previous years the firm has reported small sums, in 2017 — Trump’s first year in office — it reported $17.5 million in revenue, a large spike.

The Forbes article quotes a lawyer from the Trump organization saying that no deals were made or business activity conducted in China; the bank account and five subsidiary companies Trump created in China were meant to pursue business deals, but this pursuit went nowhere. So where did the $17.5 million come from? And where did it go?

This bit of hinkiness comes out at a particularly bad time for Trump. The final scheduled presidential debate is tomorrow night, and the Trump campaign has been whining up a storm because the announced list of topics does not include foreign policy (it does include “national security,” which is inextricably linked to foreign policy, IMO, although Trump may not understand that). The Trump team really, really wants to discuss foreign policy. Possibly they think this is a way they can bring up Hunter Biden and avoid job losses and pandemic response. Today they may be rethinking that, however. Jonathan Chait:

President Trump has spent months insisting Joe Biden is in hoc to China. “China is on a massive disinformation campaign because they are desperate to have Sleepy Joe Biden win the presidential race,” Trump tweeted last spring. “Beijing Biden is so weak on China that the intelligence community recently assessed that the Chinese Communist Party favors Biden,” claimed his son, falsely, this summer. More recently, he has seized upon hacked emails purporting to show financial links between Biden and China.

But Biden does not have financial ties to China. We know this because he released his tax returns. Trump has not released his tax returns. But the New York Times has obtained at least some of them. And they found that Trump has a Chinese bank account, and suggest he has collected earnings from that country while serving as president.

See also Alex Ward at Vox, Trump’s team is pushing for a debate on foreign policy. That could backfire.

The Hunter Biden Chronicles may have taken another blow in Sacha Baron Cohen’s Borat Subsequent Moviefilm, in which Rudy Giuliani got sucked into making a fool of himself.

In the film, released on Friday, the former New York mayor and current personal attorney to Donald Trump is seen reaching into his trousers and apparently touching his genitals while reclining on a bed in the presence of the actor playing Borat’s daughter, who is posing as a TV journalist. … They are then interrupted by Borat who runs in and says: “She’s 15. She’s too old for you.”

I may have to watch that moviefilm some time.

Other than attempting to flog the Hunter Biden story that so far has gone nowhere, Trump’s closing argument for his reelection seems to be that he doesn’t need any of this shit. Cristina Cabrera, Talking Points Memo:

President Donald Trump got remarkably candid on Tuesday night with his supporters in Pennsylvania, a state he desperately needs to win on Election Day, by telling them that if he had a choice, he wouldn’t have bothered to grace them with his presence.

“Four or five months ago when we started this whole thing….before the plague came in, I had it made,” Trump said during a rally in Erie, Pennsylvania. “I wasn’t coming to Erie. I mean I have to be honest, there’s no way I was coming. I didn’t have to.”

Unfortunately, the President complained to his supporters, the pesky COVID-19 pandemic that’s caused his approval ratings to plummet forced him to actually reach out to them.

“And then we got hit with the plague, and I had to go back to work,” Trump said. “Hello, Erie. Can I please have your vote?”

Strangely enough, the comment met with cheers and applause from the crowd.

One suspects Trump could announce he gets his kicks by locking Barron in a closet with hungry rats, and his culties would cheer and applaud.

His other clever strategy has been to pick fights with women journalists, which is bound to win more votes from women (/sarcasm). He isn’t even waiting until the debate is over to badmouth moderator Kristen Welker, for example.  Caleb Ecarma, Vanity Fair:

With the final presidential debate just a few days out, Donald Trump and his allies have launched a preemptive strike against its moderator, NBC News White House correspondent Kristen Welker, in an attempt to portray the Thursday contest as rigged from the start. “She’s a radical Democrat,” Trump told supporters on Monday in Arizona, adding that the journalist has been “screaming questions at me for a long time.” The onstage attack follows him tweeting Saturday how Welker has “always been terrible & unfair, just like most of the Fake News reporters, but I’ll still play the game.”

Ecarma says this is a strategy of intimidating the moderator in advance. I doubt Welker is intimidated. Trump’s campaign team members have said nice things about Welker in the past, Ecarma continues, but in the past few days they’ve gone overboard portraying Welker and the debate commission as accomplices of the Democrats. I take it they are resigned to Trump screwing up.

And then there’s the Lesly Stahl debacle. Trump stormed out of an interview being filmed for 60 Minutes because, apparently, Stahl had the nerve to ask him questions. And now he’s saying he’s gong to release the tape of the interview made by his team before it airs on 60 Minutes to show how awful Lesley Stahl is.

I am pleased to inform you that, for the sake of accuracy in reporting, I am considering posting my interview with Lesley Stahl of 60 Minutes, PRIOR TO AIRTIME! This will be done so that everybody can get a glimpse of what a FAKE and BIASED interview is all about…

— Donald J. Trump (@realDonaldTrump) October 20, 2020

Somehow I suspect 60 Minutes is thinking about airing an uncut version of the interview also.

According to a person with knowledge of what happened during the interview, Trump was unhappy that Stahl asked him tough questions regarding his rhetoric about Michigan Gov. Gretchen Whitmer (D) and his handling of the coronavirus pandemic, as well as the size of the crowds at his rallies and his disputes with Anthony S. Fauci, the nation’s leading infectious-disease expert. Stahl also told him during the interview that allegations about Biden’s son Hunter were not verified and that the Obama administration did not spy on the Trump campaign. Many of the questions were about the coronavirus pandemic and his handling of it, said the person, who spoke on the condition of anonymity to discuss the interview frankly.

Trump’s problem is that he’s being called to account for shit he actually did and stuff he actually said. This doesn’t work for him. Greg Sargent writes that Trump only wants to campaign in an alternative fictional universe.

Two more weeks. For once, I wouldn’t mind if time flew a little faster. Suggestion for passing a little time: If you haven’t read the in-depth exposé of Foxconn by Josh Dzieza at The Verge, don’t miss it. It’s absolutely jaw-dropping.

I also recommend The 31-day campaign against QAnon by Stephanie McCrummen at WaPo. This is the story of Kevin Van Ausdal, a political novice leading a nice, ordinary life who decided to run as a Democrat for a seat in the U.S. House from Georgia. He ended up being the Dem opponent of Marjorie Taylor Greene, the infamous QAnon wackjob, The campaign crushed him, and he dropped out a few weeks ago. Charles Pierce has a good summation of the piece here. And it’s hard to say who did the most damage — the QAnon lunatics or the “professional” campaign consultants he hired to help guide him.

And then read What I Learned When QAnon Came for Me by Scott Wiener, a member of the California State Senate, at the New York Times. QAnon isn’t just nuts; it’s dangerous. It’s like cancer. I think Wiener is right when he says QAnon is an “outgrowth of our troubled times, when people who have survived decades of extreme income inequality are now suffering through a horrific pandemic. They are turning to conspiracy theories because they think there’s nowhere else to turn.” But that doesn’t mean it has to be tolerated. The United States cannot afford to tolerate something this dangerous.

And then read Matthew Rosenberg, Republican Voters Take a Radical Conspiracy Theory Mainstream, at the New York Times.

Though there has been little public polling, there is growing anecdotal evidence that QAnon followers now make up a

small but significant minority of Republicans. Adherents are running for Congress and flexing their political muscles at the state and local levels. The movement’s growth has picked up pace since the onset of the pandemic in March, and its potency is clear on social media — before Facebook banned QAnon content earlier this month, there were thousands of dedicated Facebook groups with millions of members.

And then see Stanley Greenberg at The Atlantic, After Trump, the Republican Party May Become More Extreme. Greenberg doesn’t mention QAnon, but he does say that the Trump base isn’t going to go away.

Trump built his base in the insurgent anti-government, anti-immigrant movement that, during the last recession, came to prominence as the Tea Party. Then he forged a pact with evangelical Christians, to whom he promised a steady supply of socially conservative federal judges, including on the Supreme Court. He also built a strong alliance with his party’s anti-abortion-rights observant Catholics—a constituency epitomized by Attorney General William Barr. So Trump campaigns unbowed atop a coalition that, by my estimate, constitutes 65 percent of his party. He has lost swing voters but kept his most avid fans. Among the voters who approve of Trump’s job performance, about 70 percent do so strongly.

As Matthew Rosenberg said, there’s been little public polling and no way to know exactly what percent of the Republican Party base aligns with QAnon. But it has to be at least a significant minority at this point. See Caroline Mimbs Nyce, QAnon Isn’t Going Away at The Atlantic.

Oh, and if you’re really confused about what QAnon even is, see The Prophecies of Q by Adrienne LaFrance at The Atlantic.

The question is, what will happen to the Republican Party in the next two or three years? A lot will depend on the election, of course. But let’s assume that Republicans really do lose a lot of elections at both the state and national level. At some point the party’s going to have to choose between continuing to stoke wackjobbery or trying to be an actual political party again instead of a cult, whether Trump or QAnon or whatever.

And I suspect most of the money people would prefer an actual political party. I don’t see the people who bankroll the Heritage Foundation or the Cato Institute or any of that throwing money at candidates who are obsessed with connecting Pizzagate pedophilia rings and the Roswell UFO story with John F. Kennedy, Jr, who didn’t really die but is directing the Q movement from a mysterious underground location. I suspect most of the Never Trumper people long for a party that is mostly about real-world policy, even if their ideas about what the real world needs are from the McKinley Administration. But what percentage of Republican voters do the “serious” Republicans represent any more?

So I’m throwing it to you folks. Where do you think the Republican Party will go from here?

A woman holds a QAnon flag as protesters gather outside Governor Kate Brown’s residence in Salem, Ore., on April 25, 2020, calling for novel coronavirus restrictions to be lifted so that people can get back to work. (Photo by Alex Milan Tracy/Sipa USA)(Sipa via AP Images)

Trump’s “events” schedule looks like nonstop rallies/superspreader events starring Trump, Pence, and/or the extended Trump family. Exposing one’s most enthusiastic supporters to a deadly infectious disease just 15 days before the election seems a tad risky to me, but I’m not going to argue with the Trumpers about it.

Trump wants you to know he’s tired of hearing about covid-19. He especially wants you to know he’s tired of covid-19 after Dr. Fauci was on 60 Minutes yesterday saying he wasn’t surprised Trump caught it. Trump has been on a rampage about Fauci since then.

President Donald Trump escalated his attacks against Dr. Anthony Fauci, one of the White House’s top experts on COVID-19, into a full-blown smear campaign on Monday.

CNN reported on a call Trump had with his campaign staffers in which the President complained about those who raised alarm over his enormous, largely mask-free rallies that pose serious risk of spreading COVID-19.

“People are tired of hearing Fauci and all these idiots,” he reportedly said.

Trump called the doctor a “nice guy” who’s “been here for 500 years.”

“Fauci is a disaster,” he said, according to CNN. “If I listened to him, we’d have 500,000 deaths.”

The President welcomed the possibility of his remarks getting leaked to the media, saying that “if there’s a reporter on, you can have it just the way I said it, I couldn’t care less.”

We’re all tired of the pandemic, dude. Very, very tired.

Greg Sargent writes that it’s not just Trump; the entire GOP seems to be determined to ignore it. The crisis needs only to be managed by better messaging to change voters’ perceptions of the disease, the GOP thinks.

Republicans are required to pretend that none of this is happening or that it’s simply not that big a deal. Trump’s own rallies — the most visible manifestations of his case for a second term right now — unfold largely without masks and social distancing, themselves dramatizing this pathology as vividly as one could imagine.

As has been predicted by infectious disease experts for months, now that the weather is getting cooler and people are spendng more time indoors, more people are getting sick.

Ten states Friday reported their highest one-day case counts: Colorado, Idaho, Indiana, Minnesota, New Mexico, North Carolina, North Dakota, West Virginia, Wisconsin and Wyoming, according to Johns Hopkins.
As for the entire country, cases are swinging up after a summer surge waned.

As for the entire country, cases are swinging up after a summer surge waned.

See also ‘Uncontrolled Spread’ of COVID in Majority of U.S. States at Newsweek.

Trump’s rallies are focused especially on Pennsylvania and Arizona, so we can expect positivity rates to soar in those states in the coming days. I’m grateful all the strategists are ignoring Missouri. We don’t have early voting here, and the Missouri mail-in ballot rules were designed to make ballots challengable in court, I’m certain. I’m sheltering in place as much as possible so that I can vote in person on election day.

But the larger point is that for Republicans, the severity of the pandemic is the elephant in the room they can’t acknowledge.

Charlotte Klein writes at Vanity Fair:

President Donald Trump continued to spout his rosy narrative of a nation on the mend at a campaign event in Florida on Friday, which was also the second day in a row that new infections in the United States surpassed 64,000 for the first time since July. “The light at the end of the tunnel is near. We are rounding the turn,” Trump told rally-goers. “Don’t listen to the cynics and angry partisans and pessimists.” Playing down the pandemic in an attempt to salvage his chances for reelection—a prospect upended by Trump’s bungling of the public health crisis that has killed more than 218,000 Americans—has taken on new urgency inside the Trump campaign in recent days. After contracting COVID-19, the president has reemerged with more misinformation and disregard for science than ever, flouting safety precautions and undercutting infectious disease experts to serve his political aims. “I don’t know that Donald Trump can see past the current moment,” former task force aide Olivia Troye told the Associated Press.

Yesterday Trump even mocked Biden for lisening to science.

Trump mocks Biden for promising to listen to Dr. Fauci and the science on COVID.

"He'll listen to the scientists. If I listened to the scientists, we'd have a country in a massive depression instead of – we're like a rocket ship."

We're not like a rocket ship. pic.twitter.com/nGImkHowZP

— Pod Save America (@PodSaveAmerica) October 19, 2020

More than anything else, covid is defeating Trump. That’s a sobering thing; he’s so awful, so infeffectual, so clearly unsuited to be POTUS, yet it took an extraordinary pandemic-of-the-century to reveal that to a lot of people. There’s still a small chance — 12 percent, according to the nerds — that he would win the election.

And he’s not going to learn. The White House Coronavirus Task Force, problematic all along, is coming apart. See Trump’s den of dissent: Inside the White House task force as coronavirus surges at the Washington Post and What Fans of ‘Herd Immunity’ Don’t Tell You by John Berry at the New York Times.

For months, people have wondered what would happen if Trump loses but refuses to concede and vacate the White House. No matter what the final vote count is, if Trump loses I don’t expect him to concede. But we may not need to send the U.S. Marshals to evict him from the White House. He may be long gone by inauguration day.

This week Trump has made noises that he may leave the country if he loses. Since Trump doesn’t understand humor or jokes, we can assume he is seriously considering leaving the country if he loses and that his internal polling numbers are telling him he’s going to lose. The question is, would that be before or after the January inauguration? Jonathan Chait:

Perhaps one thing on the president’s mind is the developing criminal case against him. He faces serious legal jeopardy by prosecutors in Manhattan and New York State for what seems to be on its face fairly cut-and-dried criminal fraud in his private business dealings. It is also possible that, having left office, prosecutors may turn over some rocks and discover more criminal behavior as president of the United States. (The Department of Justice has a policy of not charging the President with crimes, but that expires if he leaves office.)

Especially if the election result is an unchallengable landslide — and we don’t know that it will be, but let’s pretend — Trump very well might try to flee the reach of prosecutors before he is officially out of office. It wouldn’t surprise me in the least if he’s gone before Christmas.

But that leaves us with the question of where he might go. Without the powers of the presidency, he’s likely to find he doesn’t have many friends in the world. And then there’s his debt problem. Yesterday a writer at Forbes published an analysis of Trump’s known debts and assets that suggest he’s more than $1 billion in debt, not just $400 million. And, of course, we don’t know who holds all of that debt. Trump may be wanting to avoid whoever that is, also. But if he flees the U.S. to escape prosecution, will he be able to take his Secret Service protection with him?

At the Atlantic, Graeme Wood writes that after the election Trump might vacate the presidency and leave Mike Pence in charge, with the understanding that Pence will pardon him for any federal crimes he might have committed. (Presidential self-pardons are constitutionally iffy.) However, at the moment it’s New York and Manhattan after his ass. And if he’s indicted later at the federal level for ongoing obstruction of justice, Pence’s blanket pardon may not mean much.

Wood also doesn’t think Trump will either try to start a civil war to stay in office or leave the country but instead will go back to his old patterns of grifting.

I think this scenario is in fact the most likely one, if Trump loses the election. And it may even be his preferred scenario, better than an outright victory (which would require another four years of onerous employment), better than showing up on Inauguration Day and having to duel Joe Biden for the right to be sworn in. As for the prospect of civil war: Trump is a coward, and all evidence suggests that he would run from the responsibility, even more burdensome than normal service as president, of overseeing the violent fracture of America. A civil war sounds like a lot of work. The easiest path is also the most lucrative. Get on Marine One, protesting all the way, and spend the rest of your days fleecing the 40 percent of Americans who still think you are the Messiah, and who will watch you on cable news, spend their money on whatever hypoallergenic pillow you endorse, and come to see you whenever you visit their town.

And that’s plausible also, assuming he can wiggle out of his legal problems.

The Biden campaign wants you to know that their internal polls are showing a tighter race than the public polls, so let’s not get ahead of ourselves. Vote, dammit.

As I’ve written before, the Trump campaign is preparing teams of lawyers to go in and stop the count of mail-in votes in states where Trump has an election-night lead. This is still our primary concern. However, the huge early voting numbers may save us.

Chris Smith at Vanity Fair:

While no one in Bidenworld is projecting a landslide, or showing any sign of overconfidence, the candidate’s braintrust has been gaming out what to do if Biden is declared the winner, especially if it’s by a modest margin—and Trump refuses to accept the results. “Look, we may need the entire campaign operation to move to Pennsylvania to ensure that absentee ballots are counted,” a Biden adviser says. “That’s going to require money and manpower, and we’re making sure we have all of that.” Longtime Biden senior aide Ron Klain, plus campaign legal heads Dana Remus and Bob Bauer, are among the top staff thinking through the multiple court actions that might be necessary.

But it’s also the case, Smith says, that Trump is unlikely to want to be photographed  being hauled out of the White House kicking and screaming, which is what would happen eventually. If it comes to the point that it’s obvious even to Trump that Biden will be inaugurated, Trump will more than likely just leave. Maybe in the dead of night.

And then on that day — it’s like a miracle, Trump will disappear. For a while, anyway.

Yesterday word was going around that Trump wanted to take the time slot against Biden’s town hall so that he could beat Biden’s ratings. Variety says the early numbers show he failed.

Biden drew 12.7 million total viewers on the Disney-owned network, while Trump drew 10.4 million in the same 9-10 p.m. time slot on NBC. Across the entire runtime, the Biden town hall averaged 12.3 million viewers. In terms of the fast national 18-49 demographic, Biden is comfortably on top with a 2.6 rating to Trump’s 1.7.

It may be that after the streams are calculated those numbers will change. But from what I’ve read, Savannah Guthrie took Trump into hand and didn’t let him go. It might be worth watching.

One, who talks like that? Two, this tells me he hasn’t actually listened to women in his entire adult life.

As Michelle Goldberg notes today, there were some women who tuned out Trump’s obvious misogyny in 2016, but fewer of them are doing it now. They’ve seen him belittle and talk over women too many times now. And one thing most women aren’t comfortable with is male anger. In 2016 Trump was revealed to be an adulterous lech, but now he’s coming across as a bully and an abuser. That’s an act that went out of style a long time ago.

So if Trump wants better ratings, I suggest he get a new act. Stand-up is out; he doesn’t get humor. I assume he can’t sing or dance. Maybe he should try a magic act. He could make himself disappear. That would be popular.

There is much speculation that the Supreme Court, especially with Amy Barrett on it, will gut or overturn the Affordable Care Act. The challenge to the ACA is scheduled to be heard on November 10. The legal issues involved in the challenge give me a headache, frankly, and I have no idea what the Court might do.

What I do know is that if the ACA is overturned, the insurance companies are no longer constrained from refusing to cover people with preexisting condtions (or “a medical history” in more civilized countries). What I also know is that Republicans have no clue what they might replace the ACA with to keep people with medical histories covered.

Local television is swamped with candidate ads right now, and nearly all of them at least mention health care. Some of them are entirely about health care. Ads from Democratic candidates, especially for the U.S. House, often accuse their Republican opponents of voting to take health care away from people with preexisting conditions. I assume this means the Republican opponent, usually an incumbent, at some point voted against the Affordable Care Act or supports the suit challenging it. (My senators, unfortunately, aren’t up for reelection.)

The Republican incumbents then release their own television ads in which they quiver with indignation that they are being accused of wanting to take health care away from people with preexisting conditions. My goodness, why would anyone accuse them of such a callous thing? But, of course, they never explain how such coverage might be restored if the ACA is overturned.

One such speciment, Rodney Davis (R-IL; the local teevee runs ads for both Missouri and Illinois politicians) is running an ad in which his wife tearfully explains that she has a preexisting condition and her children might have inherited it and it’s just so unfair that her husband’s Democratic opponent (Betsy Dirksen Londrigan) claims he would take health care away from people with preexisting conditions. Here is the ad:

I checked Davis’s record. Yes, in 2017 he voted to overturn the Affordable Care Act. I checked his web page. No, he doesn’t explain what he’s going to offer the private insurance companies to get them to agree to cover people with preexisting conditions. So Mrs. Davis is just spewing bullshit. It’s very sincere bullshit, but bullshit nonetheless.

Republicans have had ten years to come up with a comprehensive replacement for the Affordable Care Act. They have failed. Ending the Affordable Care Act would end insurance coverage for millions and allow insurance companies to deny coverage to anyone they want to deny. Any politician who wants to end the Affordable Care Act has no leg to stand on when accused of denying coverage to people with preexisting conditions.

(In case any righties read this and need this explained to them: Private for-profit insurance companies can only stay in business if most of the people paying premiums do not need expensive medical care. For that reason, insurance companies are reluctant to issue new policies to people who look like they’re going to need care that will cost the company a lot of money. Further, if they can’t deny coverage to such people, what’s to stop everyone from waiting until they get sick to buy an insurance policy? And then the private health insurance business model fails, and the insurance companies all go belly up.

This page from the Kaiser Family Foundation explains how the ACA worked out the problem:

The ACA included both a carrot and a stick to encourage currently healthy people to buy insurance. The stick was the individual mandate penalty, which has since been repealed. The carrot is the current subsidy provided to low and middle income people. Providing comprehensive pre-existing condition protections without some similar mechanism to create a balanced insurance pool would cause premiums to increase substantially and result in an unstable market.

In other words, it might be that after the ACA the insurance companies will continue to offer policies to people with preexisting conditions, but without substantial government subsidies the cost of that insurance will be way too high for most people to pay. So fat lot of good it will do them.

And among all the zombie ideas about health care Republicans have promoted over the years in lieu of a comprehensive health care plan, there is absolutely nothing that honestly addresses this problem.)

Every time I see one of these ads I want to tie the Republican candidate to a chair, shine a light in his face and grill him mercilessly about HOW he is going to guarantee health care to people with preexisting conditions. What is your plan, dude? And if they don’t have a plan, it’s perfectly legitimate for their Democratic opponents to say that they are trying to take health care away from people with preexisting conditions. Because they are. That’s just plain fact. They may pretend even to themselves that’s not what they are doing. But that’s what they are doing.

A few days ago Paul Waldman wrote a column about the secret Republican health care plan.

It’s true, as Democrats insist, that there is no Republican “plan,” if like some kind of nerd you define it as a series of specific steps written down somewhere that lay out a health care policy that will be followed by the government and the country.

But in another sense, Republicans actually do have a plan. It’s not the kind of “plan” that involves legislation or regulations. Here’s what it is: Nothing.

Waldman argues that ending the ACA without a replacement would be a catastrophe for the Republican Party, because the consequences would be terrible. Millions really would lose their health care. People with preexisting conditions would be unable to get coverage again.

Yet, at the same time, they’ve badmouthed the ACA for so long that their voters, who have no clue what they are asking for, demand that the Republican Party oppose it. So the plan is to publicly oppose it while hoping like hell it is never overturned.

Poor dopey Republican voters simply accept on face value that nothing awful would happen if the ACA is voided. And they are too stupid to understand that Donald Trump can’t just sign an executive order that people with preexisting conditions must be covered, and that fixes everything. Greg Sargent, a couple of weeks ago:

Two reporters for the Upshot talked to numerous Trump voters and found that their faith in his intention to protect preexisting conditions was rock-solid. …

…“I’ve heard from him that he would continue with preexisting conditions so that people would not lose their health insurance,” one Florida woman told the Upshot of Trump. Her husband has a heart condition.

But this bit from the Upshot piece was most revealing:

“There is not a single guy or woman who would run for president that would make it so that preexisting conditions wouldn’t be covered,” said Phil Bowman, a 59-year-old retiree in Linville, N.C. “Nobody would vote for him.”

And that’s why Trump, and Republicans around the country, are denying loudly that they will take health care away from people with preexisting conditions, even though the policies they want to enact would do exactly that.

Trump is benefiting from a perverse dynamic: He isn’t being held accountable — at least by many of his voters — for not offering an actual plan to replace the ACA precisely because wiping out the ACA’s protections, and not having any plan to replace them, seems politically unthinkable to them. And that enables him to politically get away with it — among those voters, anyway.

And down-ticket candidates like Rodney Davis are trying to pull the same scam.

It’s unfortunate that the ACA challenge won’t be heard by the SCOTUS until after the election. And if Trump loses the election and the ACA goes down, his dimwit groupies will assume they’ve lost their health care because Trump lost the election.

On the other hand, if Dems take the Senate and White House and the ACA goes down, this could push even Joe Biden to accept something a lot closer to single payer next time.

Have I mentioned that I really hate election years? We’ve got twenty days of watching the same awful politics ads on the television. We’ve got twenty more days (at least) of wondering if we’re heading for more disaster or a reprieve. Or some of both.

Yes, This Was Convenient

You might remember a while back that a right-wing agitator was shot and killed in Portland by another man who has been identified in headlines with antifa, although whether that’s completely accurate is arguable. Anyway, the alleged shooter was 39-year-old Michael Forest Reinoehl. A few hours after Reinoehl became the official suspect in the shooting he was killed by members of a U.S. Marshalls task force sent to take him into custody.

A few hours before he was killed, Reinoehl had made a video claiming he shot in self-defense. Whether that is true I do not know. We’ll probably never know.

Today the New York Times has a detailed analysis of the killing of Reinoehl that describes Reinoehl’s death as an execution. The marshalls did not even try to take Reinoehl into custody. They just shot him to death on sight.

Mr. Reinoehl did have a .380-caliber handgun on him when he was killed, according to the county sheriff’s team that is running a criminal homicide investigation into Mr. Reinoehl’s death. But the weapon was found in his pocket.

An AR-style rifle was found apparently untouched in a bag in his car.

Five eyewitnesses said in interviews that the gunfire began the instant the vehicles arrived. None of them saw Mr. Reinoehl holding a weapon. A single shell casing of the same caliber as the handgun he was carrying was found inside his car.

Garrett Louis, who watched the shooting begin while trying to get his 8-year-old son out of the line of fire, said the officers arrived with such speed and violence that he initially assumed they were drug dealers gunning down a foe — until he saw their law enforcement vests.

“I respect cops to the utmost, but things were definitely in no way, shape or form done properly,” Mr. Louis said.

Not proper, but politically convenient. Of course, if Mr. Reinoehl had been a Proud Boy he would have been arrested alive and probably treated to a hamburger on the way to arraignment.

Michael Reinoehl

So far in today’s Amy Barrett hearing that I’m not watching, Amy Barrett refused to answer yes or no to whether the Constitution gives a president unilateral authority to delay an election. (Hint to Amy: The answer is “no,” dear.)

Barrett, who clerked for Antonin Scalia of ambiguous memory, calls herself a “Constitutional originalist.” There’s a very good article at Vox by Ian Millhiser that explains originalism and why it’s a crock. Here’s the basic definition:

Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Judges, originalists maintain, should be bound by the words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution.

Now, I don’t think that’s necessarily a bad thing, up to a point. A lot of us lefties are somewhat originalist on the meaning of the Second Amendment, for example. However, taken to extremes it amounts to a tyranny of the dead. Originalism would shackle us to the perspectives and biases and knowledge of a small group of 18th century white men who couldn’t possibly have imagined the world we live in now or the problems we are facing now.

Further, I think it can be argued that the framers did not intend the Constitution to be that narrowly interpreted. “The meaning of much of the Constitution is vague and uncertain, and it was vague and uncertain when it was drafted,” Millhiser writes. This suggests to me that the 18th century white men who wrote it understood that they were creating a broad outline of government that gave future generations some flexibility to use it as they saw best. Indeed, there were enough disagreements among the attendees of the Constitutional Convention to create a lot of that vagueness, because they couldn’t agree on language that was more specific.

Indeed, in many areas we’ve gone so far beyond original understanding that there is no going back. Millhiser:

To give one rather stark example, there was a robust debate among early Americans about whether it is constitutional for the federal government to fund “internal improvements” such as roads and canals. As president, James Madison even vetoed an 1817 bill funding such construction because he deemed it unconstitutional.

Madison’s views are now widely rejected. But suppose that a Supreme Court dominated by originalists concludes that Madison was correct. Does that mean the entire federal highway system must be torn up?

Barrett has wrestled at length with the problem of precedent in her scholarship. “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” she acknowledges in a 2016 article co-authored with scholar John Copeland Nagle. She also states in that piece that there are some past decisions that “no serious person would propose to undo even if they are wrong,” so Barrett appears to recognize that it would be irresponsible for an originalist judge to overrule every precedent they believe was wrongly decided.

But don’t underestimate what a radical wingnut is likely to do.

But there is much at stake if an originalist Supreme Court is not willing to stay its hand in the ways Judge Barrett suggests. To give one more example, Justice Clarence Thomas has argued, on originalist grounds, that his Court should consider reinstating long-dead doctrines that were once used to declare federal child labor laws unconstitutional. Thomas, at the very least, seems unlikely to restrain himself simply because most Americans won’t like the outcome of a particular case.

As it turns out, originalism potentially gives judges — or, at least, Supreme Court justices — tremendous discretion to decide whether to upend foundational legal principles that few Americans would care to see unsettled.

This is followed by a fascinating history of how various forms of originalism have gone in and out of favor in the Court over the years. You will not be surprised to learn that a lot of originalism has been applied to cases involving race. But let’s go on.

In the modern era, one case the originalists keep coming back to as wrongly decided is Griswold v. Connecticut (1965). In that case, the Supreme Court ruled that a state could not ban the use of contraceptives or birth control counseling for married couples. The court majority came to this conclusion by inferring a right to privacy from several amendments in the Bill of Rights. Conservatives freaked out over this; the “right to privacy” is a fiction, in their minds, that the authors of the Constitution did not intend. Even worse as far as they are concerned, Griswold was an important precedent to Roe v. Wade (1973).

So yesterday at the Barrett hearing, Senator Josh Hawley (R-Dark Ages) went on a rant that the Griswold decision amounted to anti-Catholic bias.

“I just heard my colleague Sen. [Chris] Coons make a reference to an old case–the Griswold case–which I can only assume is another hit at Judge Barrett’s religious faith–referring to Catholic doctrinal beliefs” Hawley said without providing any evidence whatsoever. “This is the kind of thing I’m talking about and this is the sort of attacks [sic] that must stop.”

Sen. Josh Hawley just said that merely mentioning the words “Griswold v. Connecticut” is anti-Catholic, in case you are wondering how this hearing is going.

— Ian Millhiser (@imillhiser) October 12, 2020

Hawley is clearly part of the Louie Gohmert tradition of senatorial wackadoos.

I don’t know what the 18th century white guys would have thought of modern contraceptives that actually work, as opposed to the various ineffective methods used to prevent pregnancy in their day (“infanticide” is often listed as an early form of birth control). But this takes us to the problem of things that didn’t exist in the 18th century. I’m no legal scholar, but I don’t see anything in the Constitution that explicitly gives states the right to ban contraceptives. Aren’t the originalists just assuming a power that doesn’t necessarily exist? If we are going to infer, why not infer on the side of individual liberty, especially in matters that improve the quality of life?

Originalists claim that their way prevents judges from imposing their own biases on the text, but in practice it doesn’t seem to work that way. The originalists may pretend that they are above bias, but the truth is that there may be no such thing as an unbiased opinion, according to social psychology, except maybe within the hard sciences. The originalists may think they are not making decisions based on their personal values, but of course they do. They just lack the self-awareness to recognize their own biases as biases.

Consider another self-described originalist on the Court, Clarence Thomas. Just last week, Thomas wrote that the Court’s decision in Obergefell v. Hodges — which stops states from banning same-sex marriage — “created a problem.” A problem? What problem? I am not seeing a problem. Same-sex marriage is a fine thing. It’s not hurting anybody. What is the probloem?

Oh, here it is. Last week the Court refused to hear an appeal from Kim Davis, the infamous county clerk who refused to issue marriage licenses to same-sex couples and was sued. A lower court refused to grant Davis qualified immunity and said the suits against her could go forward. A majority of the SCOTUS justices didn’t want to mess with it and let the lower court decision stand. But Justices Thomas and Alito wanted to hear the case.

In a statement regarding the denial that was joined by Justice Samuel Alito, Thomas speculated that although “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision,” “she will not be the last.” Davis’ “petition provides a stark reminder of the consequences of Obergefell,” Thomas wrote. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and doing so undemocratically,” Thomas contended, “the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”

Thomas and Alito would no doubt disagree, but all they are doing here is substituting their personal opinions for objective application of the law. Yes, it’s probably true that the Original Founding Guys would be apoplectic at the idea of same-sex marriage, but they’re dead now. They don’t get to tell us what to do. Most living Americans are fine with it.

Kim Davis could have satisfied her religious beliefs simply by turning the responsibility for issuing those marriage licenses over to someone else in her office so that she wasn’t doing it personally. Pharmacists who don’t want to fill contraceptive presciptions can let a co-worker do it. Ambulance drivers who refuse to transfer patients in pain to an abortion clinic — well, may they need a new career.

I think a majority of Americans would agree that a person’s private religious beliefs and practices don’t give that person carte blanche to stomp on the rights and well being of others. If something about your religious tradition puts you at odds with most of society, in most circumstances it’s up to you to figure out how to manage to practice your religion without causing problems for others.

Especially as the U.S. is becoming more religiously diverse, we simply can’t have multiple religious factions fighting over control of the government so they can create policy that favors their beliefs. In fact, that’s exactly the sort of thing the establishment clause of the First Amendment was written to prevent. The Founding Guys remembered the bloody history of religious wars in Europe, when religious factions fought over control of government. The establishment clause “not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.” Even if a large majority of Congress is Amish, for example, as long as the establishment clause is in effect Congress can’t outlaw automobiles and modern appliances.

Further, privileging religious doctrines over the rights of homosexuals is nothing but bias. There is no fine and high-minded legal perspective that makes it otherwise. Masha Gessen, The New Yorker:

In his four-page statement from Monday, Thomas did not appear to argue that the Court should change its view of marriage itself: marriage remains a fundamental right, a right essential to being human. Yet Thomas maintains that the right of same-sex couples to marry does not exist: he calls it “atextual” and “novel.” In his dissent in Obergefell, Alito, who was joined by Thomas and the late Antonin Scalia, accused the Court of “inventing” the right to same-sex marriage. Hannah Arendt once observed that the concept of human rights was limited by the ability of people to gain membership in a political community that would recognize the humanity from which their basic rights followed. By saying that the right to marriage is fundamental but does not accrue to same-sex couples, Thomas is making a case to expel L.G.B.T.Q. people from the American political community.

I don’t think that LBGQT rights can be shoved back in the box now, Justice Thomas. We’ve come too far. Time to adjust, dude.

The originalist perspective makes me wonder what they think a Constitution is for. It’s supposed to have set up a framework by which We, the people can govern ourselves. Originalists want to take power from living people and give it to the dead. But even that is a fiction, because the truth is that originalists are just using “textualism” as a means to impose their own biases and values on the law. There is no legal document, including the Constitution, in which every clause can only possibly be interpreted one way. It’s bullshit, in other words.

Andrés L. Córdova, a law professor at Inter American University of Puerto Rico, writes for The Hill:

Contrary to the natural sciences, legal interpretation is not an empirical effort but a continuous dialogical process between the interpreter and the text.

Not all of us agree on how a word should be understood, much less for purposes of defining its legal consequences. Bostock v. Clayton County (2020), for example, is noteworthy among other reasons for the sharp disagreement between the majority opinion written by Justice Neil Gorsuch and the dissent written by Justice Samuel Alito on how best to interpret the word “sex discrimination” for purposes of Title VII of the Civil Rights Act. Even among strict constructionists, meaning has different meanings.

See also Eric Levitz, Amy Coney Barrett’s Judicial Neutrality Is a Political Fiction at New York magazine.

The National Constitution Center in Philadelphia has a room with life-size bronze statues of the Founding Guys that you can walk around and touch.

Stuff to read about the Amy Barrett nomination hearings that I don’t have the stomach to watch:

Paul Waldman: Amy Coney Barrett’s hearing is a disgusting spectacle of GOP dishonesty

Josh Marshall, It’s Not ‘Court Packing.’ Don’t Be A Moron and Call It That.

Christopher Leonard, New York Times, Charles Koch’s Big Bet on Barrett

While much of the commentary about Judge Barrett’s nomination has focused on the real prospect that Roe v. Wade may be undermined or overturned, Mr. Koch has other concerns. Judge Barrett’s nomination is the latest battleground in his decades-long war to reshape American society in a way that ensures that corporations can operate with untrammeled freedom. It may be a pivotal one.

Daniel Politi, Slate, Cory Booker Finally States the Obvious at Barrett Hearing: “This Is Not Normal”

Ian Millhiser, Vox, The single biggest lie told in the first day of the Amy Coney Barrett hearing

Charles Pierce, Amy Coney Barrett’s Nomination Is the Culmination of Various Long-Term Right-Wing Projects

Stuff to read about Trump corruption:

The New York Times, The Swamp That Trump Built. Major exposé.

Charles Pierce, The President Is Engaged in Exactly the Kind of Pay-for-Play Scams That Forced Spiro Agnew Out of Office

Robert Shapiro, Washington Monthly, Exclusive: Trump’s Tax Wizardry is Even More Sophisticated Than You Thought

Washington Post, Trump’s children brought Secret Service money to the family business with their visits, records show

… when Trump’s adult children visited Trump properties, Trump’s company charged the Secret Service for agents to come along. The president’s company billed the U.S. government hundreds, or thousands, of dollars for rooms agents used on each trip, as the agency sometimes booked multiple rooms or a multiroom rental cottage on the property.

In this way, Trump’s adult children and their families have caused the U.S. government to spend at least $238,000 at Trump properties so far, according to Secret Service records obtained by The Washington Post.

Sean Wilentz, Rolling Stone, The Sedition of Donald Trump

David Atkins, Washington Monthly, Trump Is The Most Crooked President in American History. That Should Matter.

Other Stuff to Read

Greg Sargent, Fauci’s anger at Trump is more damning than it first appeared

Timothy Noah, How Can You Tell a Senate Republican Wants a Coronavirus Deal?

Clay Jones
Copyright 2020 Claytoonz.com

Republicans must be getting nervous that Dems are not only going to win big next month but will also wipe out years of GOP plots and schemes by adding more justices to the Supreme Court. They are demanding that Joe Biden explain whether he will “pack” the court or not. Wingnut columnists like Hugh Hewitt are blubbering with outrage at the very idea.

Joe Biden isn’t saying, possibly because he’s not sure himself what he will do. I suspect he’d much rather appoint Justice Ginsburg’s replacement. And, anyway, he would need a Democratic Senate majority to pull off adding more justices to the Court. No point getting ahead of himself.

But the outraged Republicans need to look to themselves. Back in 2016 they were seriously considering reducing the number of justices to eight so that Hillary Clinton couldn’t replace Justice Scalia. Nina Totenberg reported for NPR on November 3, 2016:

With just days until the election, some Senate Republicans are suggesting that when it comes to the Supreme Court, eight is enough. Eight justices, that is.

For the first time, some Senate Republicans are saying that if Hillary Clinton is elected, the GOP should prevent anyone she nominates from being confirmed to fill the current court vacancy, or any future vacancy. …

… Senate Republican leader Mitch McConnell has not gone so far as to embrace a permanent blockade if Clinton is elected, but he set in motion the idea back in February.

Hours after the death of Justice Antonin Scalia was announced, McConnell issued a statement declaring that Republicans, who currently control the Senate, would block action on any Obama nominee.

You know the rest of that story.

Even professional wimp Ruth Marcus thinks that the Dems are justified in thinking about adding justices.

If Democrats, in response, are entertaining the radical idea of expanding the size of the court, it’s hard to blame them; Republicans have stocked the court with one and soon two justices whose seats they were not entitled to fill. This is slow-motion court-packing in plain sight.

And it isn’t just the Supreme Court; it’s all manner of federal courts. According to Pew Research, almost a quarter of all federal judges in the U.S. are Trump appointees. This came about because Senate Republicans blocked many Obama nominations, giving “a raft of federal vacancies” to Trump. And then Mitch and the gang went into hyperdrive to ram through the nomination of anyone with a law degree who was young, nuts enough to please the Federalist Society, and breathing. Qualifications were not a consideration.

The purpose is clear: With enough hard-right judges on the bench, progressive policies can still be blocked even if Republicans lose Congress and the White House. This puts environmental protection and the future of the planet, voting rights, health care reform, reproductive rights, economic justice, all manner of equal protections, etc., in jeopardy for the next forty years. What Congress and the White House enact, the courts can nullify.

Seth Masket, a professor of political science and director of the Center on American Politics at the University of Denver, wrote in WaPo:

Before the end of the year, Amy Coney Barrett will probably be sworn in as a Supreme Court justice — and she may serve for decades. She will have been appointed by an impeached president who lost the popular vote in 2016 and may well continue in office after losing it again in 2020. She will almost certainly be approved by senators representing less than 45 percent of the American population.

Our nation is moving even deeper into minority rule: The House aside, the U.S. government is controlled by the less popular party in a polarized two-party system. We may call this unfair, but that would trivialize the problem. It is entirely permissible under the Constitution, and it is dangerous. When the majority of a nation’s citizens can’t get its candidates elected or its preferred policies passed, the government’s legitimacy is compromised and destabilizing pressure begins to build.

The Electoral College, two senators from each state regardless of population, and political gerrymandering to favor Republicans in House races means that Republicans can take take the White House and control Congress while earning fewer votes than Democrats. See, for example, Democrats got millions more votes – so how did Republicans win the Senate?

See also How the Minority Wins by Vann R. Newkirk II at The Atlantic. Very basically, this tells the story of how the Republicans, a few years back, began to reflect on the changing demographics of the nation and wrestled with the problem of being the party of white men. Their response was not to expand their appeal to other voters but find ways to win with a minority — gerrymandering, voter suppression, sympathetic judges.

Seth Masket continues,

When well more than half the country votes for one result — over and over — and continues to get another, the situation is unsustainable. This is how a government loses its legitimacy. Governments worldwide facing legitimacy crises have been faced with struggling to govern, as we saw in the Philippines under Ferdinand Marcos, or brutally cracking down on protests, as we saw in Egypt under Hosni Mubarak and continue to see under Abdel Fatah al-Sissi. It’s an ugly situation, and the United States is not immune.

“Protest and unrest are a predictable outcome when a population thinks the political system is completely unresponsive to its needs,” Masket writes. Ironically, even though Republicans claim to be the ones who want law and order, keeping them in power just escalates unrest. Tyranny by a minority is not sustainable, and it’s not democracy. (No wonder Mike Lee doesn’t like democracy.)

I’m saying that for the good of the country, if the Democrats can take back the Senate and White House they must not let the court situation stand. If Amy Barrett is seated they must add more justices to the Supreme Court, and I’m saying at least four, not just two. Two would still give us a six-five conservative majority.

People are concerned that this would just begin a court-packing war, and Republicans will add more judges when they take the government back. That’s why voting rights and other pro-democracy reforms have to be a priority for the next Democratic Congress. Then, unless they pull back from right-wing extremism, they’ll have a harder time taking the government back.

Also, Jacob Hale Russell, an assistant professor of law at Rutgers, recently argued in Time that there need to be 27 justices on the Supreme Court. I’ll let you read his entire argument for how he arrived at the number 27, but his basic argument is that with more justices it takes away the impact of the one to four appointments most presidents make.

And since all federal judges serve lifetime appointments, per the Constitution, I say add more judges to other courts also, as needed.

Will Joe Biden go along with this? I do not know. He may not know, either. He’s not a revolutionary sort of guy but is more comfortable cruising down the middle of the mainstream. But I believe, I hope, that if all our election hopes come to pass and Barrett is on the Court, that there will be enough pro-court-expanding sentiment among Democrats to persuade him to act.

Amy Barrett’s confirmation hearings start tomorrow. See also E.J. Dionne, The GOP is lying its way toward expanding the Supreme Court’s conservative majority.

The Supreme Court in 1894, a very conservative crew.