washingtonmonthly--2020-10-10--How Many Republican Senators Have COVID-19? They Won’t Say.

There comes a point in most heist movies where the thieves ’ plan seems to be coming off the rails .
Each individual starts improvising and stonewalling in the hope that , with a bit of luck and scamming , it all comes off in the end .
Sometimes it all works out in circumstances defying belief .
But sometimes it doesn ’ t–with catastrophic consequences .
That is the moment Republican Senators find themselves facing in the attempted heist of the Supreme Court .
McConnell ’ s Senate is confronting two simultaneous pressures : the first , to jam @ @ @ @ @ @ @ Barrett at some point before Election Day ; the second , to avoid being shut down by the COVID crisis engulfing top-tier Republicans in Washington , D.C. With only a 12-10 majority on the Senate Judiciary Committee and a 53-47 majority in the body , Republicans can not afford many losses , or the plot unravels .
Donald Trump ’ s super-spreader event at the White House Rose Garden to celebrate the judicial coup has already infected Judiciary Committee members Thom Tillis ( R-SC ) and Mike Lee ( R-UT ) .
Wisconsin @ @ @ @ @ @ @ on earlier this month .
Though both Judiciary Committee members claim to be improving and now symptom-free , guidelines recommend quarantining for at least 10 days since symptoms first appeared .
But those guidelines are not guarantees of safety : per the CDC , infected individuals can continue to shed the virus in upper respiratory specimens for up to 3 months after the onset of symptoms ( though with reduced viral loads . )
It is unclear whether Senators Lee or Tillis will be able to return in time to confirm Barrett .
@ @ @ @ @ @ @ staff are increasingly reporting positive tests .
Given the precariousness of their situation , other GOP Senators are taking extraordinary risks : they either refuse to be tested or refuse to report the testing .
While a few GOP Senators are being tested without incident , many are not .
Iowa ’ s 87-year-old Senator Chuck Grassley refuses to take a COVID test even after direct contact with Senator Lee .
South Carolina Senator Lindsey Graham has forced debate planners to switch formats in his debate with challenger Jaime Harrison–one of the closest @ @ @ @ @ @ @ to test for the virus .
Many other GOP senators refuse to get tested or state the date of their last test , including Senate Majority Leader McConnell himself .
Grassley ’ s case is particularly concerning because he is not only a Senate Judiciary Committee member but third in line for the presidency behind Trump if the worst should befall Trump , Pence and Pelosi–an event not entirely beyond the realm of possibility .
Some of these senators are using the fact that they have not been in contact with COVID-positive members @ @ @ @ @ @ @ the reality is that due to lack of universal testing and the Trump administration ’ s refusal to allow contact tracing , it is impossible for them to know if that is the case .
Some younger senators may get COVID and remain symptom-free , yet infectious to others .
A few senators who are also Judiciary Committee members who have been in contact with infected individuals are self-quarantining , including Ted Cruz ( R-TX ) , Ben Sasse ( R-NE ) , and James Lankford ( R-OK ) .
These senators tested @ @ @ @ @ @ @ Still , there have been few reports of testing since then , despite the fact that infection may result many days after initial contact .
Senate Republicans are taking an enormous gamble .
They know that just one or two more positive cases among their own could scuttle the entire Barrett nomination .
So they are allowing their members to endanger the whole caucus though insufficient testing or refusal to test , praying that none of them get infected–or that if they do , they can stonewall through to take the deciding vote @ @ @ @ @ @ @ For now , McConnell is allowing the Judiciary Committee to continue to meet while delaying the Senate proper .
But among the consequences of that decision is that Republicans are preventing passage of a COVID relief bill while continuing to force through the Supreme Court nominee process–a deeply unpopular move that could help seal the fate of the Senate Republican majority .
But if the Senate itself becomes another super-spreader event like the White House Rose Garden event ( and indeed , it appears that Ms. Coney Barrett ’ s children may have @ @ @ @ @ @ @ classmates this week by going in person , even though online classes were available ) , it could derail the nomination entirely and endanger the lives of everyone involved .
There were already excellent reasons for Senate Democrats to refuse to legitimize the heist of the Supreme Court by simply boycotting the proceedings .
The reckless improvisation of Senate Republicans in risking the health of their colleagues and staff by refusing to test for the virus should be the last straw .
Perhaps they will get away with it .
Perhaps they won @ @ @ @ @ @ @ it courts catastrophe .


washingtonmonthly--2020-10-11--Trump Is The Most Crooked President in American History. That Should Matter.

One of Donald Trump ’ s greatest political talents–if you can call it that–is the ability to kick up such a whirlwind of chaos that it becomes easy to lose sight of simple moral baselines .
Actions and stories that would functionally end other presidencies are forgotten within days as the bright bouncy orange ball moves to the next outrage and shatters the next norm .
Opponents are left wondering whether to five the next five-alarm fire , or try to focus on rebuilding the crumbling foundations of governance from the last fire .
That is in part what has @ @ @ @ @ @ @ behavior .
For years , Americans of decency have eagerly awaited the disclosure of Donald Trump ’ s personal and organizational tax records , knowing that they were likely to reveal massive corruption , potentially leading to a crisis of government , impeachment , resignation or any other consequence of note .
But Trump ’ s chaos tornado , particularly in the context of a historic pandemic , has essentially nullified the consequences of what should be earth-shattering revelations .
When the New York Times released the main story on Trump ’ s @ @ @ @ @ @ @ basically had no impact on public polling and lasted about one to two days in the national news cycle .
This is in part because Trump has so debased expectations for his own behavior and public service that everyone knows he ’ s a crook–even his own supporters–but either they don ’ t care or they were already opposing him , anyway .
But it ’ s also because who has time to worry about whether the president is a tax cheat when he is actively spreading a deadly virus at the highest @ @ @ @ @ @ @ Service and refusing to accept the results of a free and fair election ?
This in spite of the fact that we absolutely must care about these things .
After all , the president is $ 421 million in debt .
Whoever owns his debt , including potential foreign adversaries , could essentially be running national policy !
Even if we believe we can not afford to pay attention to it given the rest of the hurricane winds , we still must manage to maintain our focus .
More recently , the New @ @ @ @ @ @ @ Trump ’ s historic crookedness .
On Friday October 9th we learned that Trump likely committed $ 21 million of concurrent tax fraud and campaign finance fraud by funneling money through a shell corporation , then giving it his 2016 presidential campaign while taking it as a tax write-off .
If true , those are felonies for which other mortals could do years of jail time .
And there was a quid pro quo in exchange that should , if they were halfway honest about their supposed principles , infuriate conservatives : Trump @ @ @ @ @ @ @ pony up the money are now getting approval for a Los Angeles-to-Las Vegas train that Republicans refused to greenlight for Obama .
This is a matter of enormous personal and public corruption .
Then on Saturday October 10th we learned the details of something even more damning that good government advocates have long suspected : Trump is actively selling access to special interests in exchange for personal gain .
This goes well beyond the usual legalized bribery of American government in which lobbyists help supply campaign cash in exchange for special access to @ @ @ @ @ @ @ cash gifts to Trump businesses and Trump ’ s personal bottom line , in direct exchange for policy favors : But Mr. Trump did not merely fail to end Washington ’ s insider culture of lobbying and favor-seeking .
He reinvented it , turning his own hotels and resorts into the Beltway ’ s new back rooms , where public and private business mix and special interests reign… Federal tax-return data for Mr. Trump and his business empire , which was disclosed by The New York Times last month , showed that even @ @ @ @ @ @ @ successful businessman to win the presidency , large swaths of his real estate holdings were under financial stress , racking up losses over the preceding decades .
Federal tax-return data for Mr. Trump and his business empire , which was disclosed by The New York Times last month , showed that even as he leveraged his image as a successful businessman to win the presidency , large swaths of his real estate holdings were under financial stress , racking up losses over the preceding decades .
But once Mr. Trump was in the @ @ @ @ @ @ @ a lucrative new revenue stream : people who wanted something from the president .
An investigation by The Times found over 200 companies , special-interest groups and foreign governments that patronized Mr. Trump ’ s properties while reaping benefits from him and his administration .
Nearly a quarter of those patrons have not been previously reported .
This is public corruption on a scale unseen in American history , even in the 19th century Gilded Age .
Leave aside his destructive public policy , his personal odiousness , his lurches toward authoritarianism , @ @ @ @ @ @ @ society and his abrogation of norms and decency .
Donald Trump is also hands down the most corrupt president in American history .
That should mean something .
It should be a big part of our national discourse as we approach Election Day .
It should be a major focus on the remaining presidential debate , and the questions that are asked of both presidential candidates , as well as candidates for Senate and Congress who , if the president is re-elected , may once again be called as prosecutors and juries in @ @ @ @ @ @ @ to matter whether the president is historically corrupt , there isn ’ t much of a country left to save .
Even in the midst of chaos , we must demand more of ourselves , of our government , and of the media that covers it .

One of Donald Trump’s greatest political talents–if you can call it that–is the ability to kick up such a whirlwind of chaos that it becomes easy to lose sight of simple moral baselines. Actions and stories that would functionally end other presidencies are forgotten within days as the bright bouncy orange ball moves to the next outrage and shatters the next norm. Opponents are left wondering whether to five the next five-alarm fire, or try to focus on rebuilding the crumbling foundations of governance from the last fire.
That is in part what has happened over Trump’s personal financial behavior. For years, Americans of decency have eagerly awaited the disclosure of Donald Trump’s personal and organizational tax records, knowing that they were likely to reveal massive corruption, potentially leading to a crisis of government, impeachment, resignation or any other consequence of note. But Trump’s chaos tornado, particularly in the context of a historic pandemic, has essentially nullified the consequences of what should be earth-shattering revelations.
When the New York Times released the main story on Trump’s tax-dodging and enormous personal debts, it basically had no impact on public polling and lasted about one to two days in the national news cycle. This is in part because Trump has so debased expectations for his own behavior and public service that everyone knows he’s a crook–even his own supporters–but either they don’t care or they were already opposing him, anyway. But it’s also because who has time to worry about whether the president is a tax cheat when he is actively spreading a deadly virus at the highest levels of government, sabotaging the Postal Service and refusing to accept the results of a free and fair election? This in spite of the fact that we absolutely must care about these things. After all, the president is $421 million in debt. Whoever owns his debt, including potential foreign adversaries, could essentially be running national policy! Even if we believe we cannot afford to pay attention to it given the rest of the hurricane winds, we still must manage to maintain our focus.
More recently, the New York Times landed even more details of Trump’s historic crookedness. On Friday October 9th we learned that Trump likely committed $21 million of concurrent tax fraud and campaign finance fraud by funneling money through a shell corporation, then giving it his 2016 presidential campaign while taking it as a tax write-off. If true, those are felonies for which other mortals could do years of jail time. And there was a quid pro quo in exchange that should, if they were halfway honest about their supposed principles, infuriate conservatives: Trump’s casino magnate friends who helped pony up the money are now getting approval for a Los Angeles-to-Las Vegas train that Republicans refused to greenlight for Obama. This is a matter of enormous personal and public corruption.
Then on Saturday October 10th we learned the details of something even more damning that good government advocates have long suspected: Trump is actively selling access to special interests in exchange for personal gain. This goes well beyond the usual legalized bribery of American government in which lobbyists help supply campaign cash in exchange for special access to legislators’ ears. This is direct cash gifts to Trump businesses and Trump’s personal bottom line, in direct exchange for policy favors:
But Mr. Trump did not merely fail to end Washington’s insider culture of lobbying and favor-seeking. He reinvented it, turning his own hotels and resorts into the Beltway’s new back rooms, where public and private business mix and special interests reign… Federal tax-return data for Mr. Trump and his business empire, which was disclosed by The New York Times last month, showed that even as he leveraged his image as a successful businessman to win the presidency, large swaths of his real estate holdings were under financial stress, racking up losses over the preceding decades. Federal tax-return data for Mr. Trump and his business empire, which was disclosed by The New York Times last month, showed that even as he leveraged his image as a successful businessman to win the presidency, large swaths of his real estate holdings were under financial stress, racking up losses over the preceding decades. But once Mr. Trump was in the White House, his family business discovered a lucrative new revenue stream: people who wanted something from the president. An investigation by The Times found over 200 companies, special-interest groups and foreign governments that patronized Mr. Trump’s properties while reaping benefits from him and his administration. Nearly a quarter of those patrons have not been previously reported.
This is public corruption on a scale unseen in American history, even in the 19th century Gilded Age. Leave aside his destructive public policy, his personal odiousness, his lurches toward authoritarianism, his encouragement of the worst elements in society and his abrogation of norms and decency.
Donald Trump is also hands down the most corrupt president in American history. That should mean something. It should be a big part of our national discourse as we approach Election Day. It should be a major focus on the remaining presidential debate, and the questions that are asked of both presidential candidates, as well as candidates for Senate and Congress who, if the president is re-elected, may once again be called as prosecutors and juries in future impeachment trials.
If it ceases to matter whether the president is historically corrupt, there isn’t much of a country left to save. Even in the midst of chaos, we must demand more of ourselves, of our government, and of the media that covers it.


washingtonmonthly--2020-10-11--COVID-19 Gives Us the Chance to Close Prisons. Here’s Why and How.

The COVID-19 epidemic has been a disaster for much of the world and especially the United States .
Yet it has yielded one dividend : A generational opportunity to roll back mass incarceration .
In a sign that compassion isn ’ t completely lacking among corrections officials , vulnerable individuals who might otherwise have died or suffered a severe illness and survived from COVID-19 have been released early .
The impact of this early release can be quantified in federal prisons , unlike state facilities , which are slower to report data .
As the federal fiscal year ended on @ @ @ @ @ @ @ is down over 21,500 inmates to a 20 year-low population of 155,000 .
Even considering initiatives to shrink the system by multiple Congresses and the Obama and Trump administrations , COVID-19 produced the largest annual decrease in history .
How can prison reformers not let this crisis go to waste ?
The worst mistake would be to assume the change will be lasting .
At the risk of anthropomorphizing them , correctional facilities and the criminal justice system which feeds them , have a survival instinct that drives them to adapt to changing @ @ @ @ @ @ @ the number of convicted individuals to send to jail , the system has responded by jailing more non-convicted people prior to trial , maintaining the size of the jail population .
The system can just as surely find ways to refill empty prison cells rapidly once COVID-19 slackens .
Every state and federal prison is a hungry mouth to feed .
Closing some prisons to reduce the system ’ s holding capacity would help prevent the prison population from rising again .
Private prisons are a leftist bugaboo , but reformers should be @ @ @ @ @ @ @ crisis : It ’ s politically easier to cancel a contract for a private prison than to face down a public sector union at a state or federally run facility .
That said , some public correctional facilities should not be spared the axe .
The logical candidates are decaying facilities that present safety risks to inmates as well as staff .
Nothing can replace the lives that COVID-19 has claimed .
But let ’ s take advantage of the opportunity the virus presents to kill off mass incarceration .

The COVID-19 epidemic has been a disaster for much of the world and especially the United States. Yet it has yielded one dividend: A generational opportunity to roll back mass incarceration.
In a sign that compassion isn’t completely lacking among corrections officials, vulnerable individuals who might otherwise have died or suffered a severe illness and survived from COVID-19 have been released early. The impact of this early release can be quantified in federal prisons, unlike state facilities, which are slower to report data. As the federal fiscal year ended on October 1, the federal prison population is down over 21,500 inmates to a 20 year-low population of 155,000. Even considering initiatives to shrink the system by multiple Congresses and the Obama and Trump administrations, COVID-19 produced the largest annual decrease in history.
How can prison reformers not let this crisis go to waste?
The worst mistake would be to assume the change will be lasting. At the risk of anthropomorphizing them, correctional facilities and the criminal justice system which feeds them, have a survival instinct that drives them to adapt to changing situations. As plunging crime rates reduced the number of convicted individuals to send to jail, the system has responded by jailing more non-convicted people prior to trial, maintaining the size of the jail population. The system can just as surely find ways to refill empty prison cells rapidly once COVID-19 slackens.
Every state and federal prison is a hungry mouth to feed. Closing some prisons to reduce the system’s holding capacity would help prevent the prison population from rising again. Private prisons are a leftist bugaboo, but reformers should be very glad for them during the COVID-19 crisis: It’s politically easier to cancel a contract for a private prison than to face down a public sector union at a state or federally run facility.
That said, some public correctional facilities should not be spared the axe. The logical candidates are decaying facilities that present safety risks to inmates as well as staff.
Nothing can replace the lives that COVID-19 has claimed. But let’s take advantage of the opportunity the virus presents to kill off mass incarceration.


washingtonmonthly--2020-10-12--Exclusive: Trump’s Tax Wizardry is Even More Sophisticated Than You Thought

Millions of Americans believe that Donald Trump is a business failure who cheats on his taxes .
But to borrow one of his favorite insults , the president may not be “ the stone-cold loser , ” many imagine .
In some ways , he ’ s a success even considering his businesses generate vast losses , and he personally liable for the hundreds of millions of dollars in bank loans and junk bonds borrowed by those businesses .
Instead , think of Trump as practicing an extreme alchemy of the shameless rich : He uses loans from other people @ @ @ @ @ @ @ as a tax shelter from millions in annual income .
How he does it is the fascinating and , perhaps , illegal part .
As reported by the New York Times , Trump ’ s tax returns provide a snapshot of decades of gaming the system .
In 2017 , Trump reported personal income of $ 14,770,496 from his branding deals , money-making investments , income tied to his reality TV show , and the first wave of revenues from favor seekers joining Mar-A-Lago and taking suites at his hotels .
( This @ @ @ @ @ @ @ ) His Limited Liability Companies ( LLCs ) reported a net loss of $ 15,313,785 on gross revenues of $ 536.6 million .
That left Trump with no personal income tax liability on nearly $ 14.8 million in income .
He ended up paying his now widely derided $ 750 tax bill under a watered-down alternative minimum tax ( AMT ) .
Perhaps he felt that was too much .
The tax changes that Congress passed and he gleefully signed in December 2017 virtually abolished the personal AMT .
But Trump adds some @ @ @ @ @ @ @ strategy of mega-millionaires .
To start , he doesn ’ t put his own money in the businesses generating the losses .
He raises the capital instead from banks and investors .
In this period , Trump also doesn ’ t offer them any equity in the businesses .
Instead , his financing comes from debt — bank loans to an LLC he created , and junk bonds issued by that LLC .
Now , banks won ’ t lend large amounts of money to an LLC owned by someone with a history @ @ @ @ @ @ @ is willing to put considerable personal assets “ at risk , ” in addition to the collateral of the property itself .
That ’ s fine with Trump because the IRS Code dictates that he can claim the LLC ’ s tax losses against his own personal income only if he is personally liable .
It all boils down to this : By borrowing all the money and making himself personally liable for those loans , he ends up saving millions of dollars in taxes by losing other people ’ s money .
@ @ @ @ @ @ @ operated in Atlantic City for decades as a casino magnate .
He bought and built three casino hotels and kept them afloat using multiple rounds of bank loans ( for which he was personally liable ) and multiple issues of junk bonds .
For the distinctive Trump touch , when he issued $ 100 million in junk bonds for the Trump Plaza casino in 1993 , he diverted half of it to cover his personal debts .
Desperate to stave off the casino hotel ’ s bankruptcy two years later , he created @ @ @ @ @ @ @ Casino Resorts .
This new company sold $ 140 million in public stock and issued $ 155 million in junk bonds ( at 15.5 percent interest ) .
Once again , he diverted part of the proceeds to pay down huge personal debts .
Based on his record , it ’ s likely that Trump ’ s current money-losing LLCs will go into bankruptcy when their loans come due in 2024 , which will be during his second term should he be reelected .
The junk bondholders will lose everything .
Trump will @ @ @ @ @ @ @ and pay them a fraction of what he owes them , repeating what he did in Atlantic City .
Four years from now , the tax losses he claims will be worth more than what he pays his lenders .
In Atlantic City , this was a debacle for his lenders .
Trump the wizard claimed $ 916 million in tax losses based on $ 3.4 billion in debts owed to the junk bondholders and banks that put up the money .
That generated an estimated $ 341 million in tax savings for @ @ @ @ @ @ @ ) on top of the many millions of dollars he took out as management fees or diverted for his personal debts .
Trump ’ s current scheme appears to be planned carefully in other ways .
In this rerun , he has used the junk bonds and bank loans mainly to buy golf clubs and hotels .
Golf courses and hotels fit the bill for his scheme because , in addition to all of the expenses or costs that typical businesses generate , they also enjoy many forms of special tax treatment : @ @ @ @ @ @ @ their core physical assets – everything but the foundations , walls , roof , windows and doors of the buildings – can be deducted or “ depreciated ” over shortened periods .
Golf clubs , hotels , and similar businesses also receive a special tax credit to cover the payroll taxes they pay for any portion of the wages of waiters , busboys , bartenders , and maids that can be attributed to tips .
Along with some other types of businesses , Trump ’ s LLCs can also claim a $ 9,600 @ @ @ @ @ @ @ is a veteran or from certain low-wage groups such as food stamp recipients , the long-term unemployed , and ex-felons of the non-Michael Cohen variety .
And even all of those tax breaks aren ’ t enough for Trump and his congressional allies : They slipped a special provision into the 2017 Trump tax act providing “ bonus depreciation ” that allows his real estate ventures to deduct 100 percent of the cost of any new physical asset the very same year it is purchased , apart again from a building ’ s @ @ @ @ @ @ @ , and doors .
Trump likes to play golf , and his LLCs currently own 15 18-hole golf courses .
But since his strategy is to make money by losing other people ’ s money , it helps that golf courses and their club facilities are notorious money losers .
Since at least 2006 , many more golf courses have closed than opened up ; and in 2018 , the equivalent of 198 18-hole golf courses closed while just 12.5 new 18-hole courses opened .
Another golf-industry analysis found that the average annual @ @ @ @ @ @ @ only $ 72,500 .
That includes the handful of highly successful brands such as Augusta and Pebble Beach .
And Trump bought most of his golf clubs only after he had exhausted the $ 916 million in tax losses from the serial bankruptcies of the casino hotels he purchased and built with other people ’ s money .
Sure , it is perfectly legal to be an at-risk “ owner ” of 15 golf courses that lose money .
( Tax courts , though , routinely disallow losses from investments undertaken solely to @ @ @ @ @ @ @ clubs and hotels are also highly susceptible to conventional forms of tax fraud .
Their operations involve millions of relatively small transactions that provide cheaters opportunities to underreport revenues and inflate costs .
Trump did this when two of his LLC properties paid his daughter Ivanka $ 747,622 for independent consulting fees while she worked as a full-time salaried employee of the Trump Organization .
Big money-losing businesses usually go belly up , and Trump naturally has an unsavory endgame .
When his Atlantic City empire ended in bankruptcies , Trump was personally @ @ @ @ @ @ @ of the casino-hotel LLCs ’ $ 3.4 billion debt .
He haggled with his creditors for years as the three LLCs came out and went back into legal bankruptcy .
In the process , he managed to generate $ 160 million in personal management and other fees from the moribund properties .
In the end , he negotiated a 50-percent cut in his personal liability , which he settled by selling other properties , including the Plaza Hotel , the Trump shuttle , his yacht , and his private jet .
Then he @ @ @ @ @ @ @ in tax losses that he used to offset his income for another 15 years .
This time , Trump is personally at-risk for $ 410 million in debts owed by his LLCs .
All of it is interest-only debt with the full principal coming due in 2024 .
( Again , just what you would want from a nearly 80-year-old president ending his second term : A giant balloon payment to unknown lenders . )
Since those LLCs lose millions of dollars every year , Trump inevitably will have to put most or @ @ @ @ @ @ @ bankruptcy .
If he is serving a second term as president in 2024 , no one can doubt that he will use his presidential leverage to cut the sweetest of sweetheart deals , probably involving massive loan forgiveness .
( Trump is so used to the idea of shortchanging his lenders that he suggested give holders of U.S. debt a haircut when he was running for office in 2016 .
He was talked out of it when told it could lead to a worldwide financial collapse if 200 years of “ full , @ @ @ @ @ @ @ came crashing down . )
If Trump ’ s presidency ends in January 2021 , the required repayment may be greater .
Creditors usually can not seize a person ’ s primary residence for such debts , so Trump will keep Mar-A-Lago and perhaps have to turn over the Trump Tower triplex penthouse .
Whether or not Donald Trump is president when the bills come due in 2024 , he may still walk away with up to $ 150 million in tax savings to use over the next decade .
So , whatever @ @ @ @ @ @ @ business acumen , he has a singular knack for making money while losing other people ’ s money .

Millions of Americans believe that Donald Trump is a business failure who cheats on his taxes. But to borrow one of his favorite insults, the president may not be “the stone-cold loser,” many imagine. In some ways, he’s a success even considering his businesses generate vast losses, and he personally liable for the hundreds of millions of dollars in bank loans and junk bonds borrowed by those businesses. Instead, think of Trump as practicing an extreme alchemy of the shameless rich: He uses loans from other people to generate millions in annual tax losses as a tax shelter from millions in annual income.
How he does it is the fascinating and, perhaps, illegal part.
As reported by the New York Times, Trump’s tax returns provide a snapshot of decades of gaming the system. In 2017, Trump reported personal income of $14,770,496 from his branding deals, money-making investments, income tied to his reality TV show, and the first wave of revenues from favor seekers joining Mar-A-Lago and taking suites at his hotels. (This is while he’s president.) His Limited Liability Companies (LLCs) reported a net loss of $15,313,785 on gross revenues of $536.6 million. That left Trump with no personal income tax liability on nearly $14.8 million in income. He ended up paying his now widely derided $750 tax bill under a watered-down alternative minimum tax (AMT). Perhaps he felt that was too much. The tax changes that Congress passed and he gleefully signed in December 2017 virtually abolished the personal AMT.
But Trump adds some sleazy touches to the standard come-up-with-losses tax strategy of mega-millionaires. To start, he doesn’t put his own money in the businesses generating the losses. He raises the capital instead from banks and investors. In this period, Trump also doesn’t offer them any equity in the businesses. Instead, his financing comes from debt — bank loans to an LLC he created, and junk bonds issued by that LLC. Now, banks won’t lend large amounts of money to an LLC owned by someone with a history of serial bankruptcies, unless that person is willing to put considerable personal assets “at risk,” in addition to the collateral of the property itself. That’s fine with Trump because the IRS Code dictates that he can claim the LLC’s tax losses against his own personal income only if he is personally liable. It all boils down to this: By borrowing all the money and making himself personally liable for those loans, he ends up saving millions of dollars in taxes by losing other people’s money.
Trump’s strategy echoes how he operated in Atlantic City for decades as a casino magnate. He bought and built three casino hotels and kept them afloat using multiple rounds of bank loans (for which he was personally liable) and multiple issues of junk bonds. For the distinctive Trump touch, when he issued $100 million in junk bonds for the Trump Plaza casino in 1993, he diverted half of it to cover his personal debts. Desperate to stave off the casino hotel’s bankruptcy two years later, he created a new company, Trump Hotels and Casino Resorts. This new company sold $140 million in public stock and issued $155 million in junk bonds (at 15.5 percent interest). Once again, he diverted part of the proceeds to pay down huge personal debts.
Based on his record, it’s likely that Trump’s current money-losing LLCs will go into bankruptcy when their loans come due in 2024, which will be during his second term should he be reelected. The junk bondholders will lose everything. Trump will turn over the banks’ failed properties and pay them a fraction of what he owes them, repeating what he did in Atlantic City. Four years from now, the tax losses he claims will be worth more than what he pays his lenders. In Atlantic City, this was a debacle for his lenders. Trump the wizard claimed $916 million in tax losses based on $3.4 billion in debts owed to the junk bondholders and banks that put up the money. That generated an estimated $341 million in tax savings for himself (based on prevailing tax rates) on top of the many millions of dollars he took out as management fees or diverted for his personal debts.
Trump’s current scheme appears to be planned carefully in other ways. In this rerun, he has used the junk bonds and bank loans mainly to buy golf clubs and hotels. Golf courses and hotels fit the bill for his scheme because, in addition to all of the expenses or costs that typical businesses generate, they also enjoy many forms of special tax treatment: The value or cost of many of their core physical assets – everything but the foundations, walls, roof, windows and doors of the buildings – can be deducted or “depreciated” over shortened periods. Golf clubs, hotels, and similar businesses also receive a special tax credit to cover the payroll taxes they pay for any portion of the wages of waiters, busboys, bartenders, and maids that can be attributed to tips. Along with some other types of businesses, Trump’s LLCs can also claim a $9,600 tax credit for any new employee who is a veteran or from certain low-wage groups such as food stamp recipients, the long-term unemployed, and ex-felons of the non-Michael Cohen variety.
And even all of those tax breaks aren’t enough for Trump and his congressional allies: They slipped a special provision into the 2017 Trump tax act providing “bonus depreciation” that allows his real estate ventures to deduct 100 percent of the cost of any new physical asset the very same year it is purchased, apart again from a building’s foundation, walls, roof, windows, and doors.
Trump likes to play golf, and his LLCs currently own 15 18-hole golf courses. But since his strategy is to make money by losing other people’s money, it helps that golf courses and their club facilities are notorious money losers. Since at least 2006, many more golf courses have closed than opened up; and in 2018, the equivalent of 198 18-hole golf courses closed while just 12.5 new 18-hole courses opened. Another golf-industry analysis found that the average annual net income of private 18-hole courses was only $72,500. That includes the handful of highly successful brands such as Augusta and Pebble Beach. And Trump bought most of his golf clubs only after he had exhausted the $916 million in tax losses from the serial bankruptcies of the casino hotels he purchased and built with other people’s money.
Sure, it is perfectly legal to be an at-risk “owner” of 15 golf courses that lose money. (Tax courts, though, routinely disallow losses from investments undertaken solely to generate those losses.) But golf clubs and hotels are also highly susceptible to conventional forms of tax fraud. Their operations involve millions of relatively small transactions that provide cheaters opportunities to underreport revenues and inflate costs. Trump did this when two of his LLC properties paid his daughter Ivanka $747,622 for independent consulting fees while she worked as a full-time salaried employee of the Trump Organization.
Big money-losing businesses usually go belly up, and Trump naturally has an unsavory endgame. When his Atlantic City empire ended in bankruptcies, Trump was personally at-risk and liable for $830 million of the casino-hotel LLCs’ $3.4 billion debt. He haggled with his creditors for years as the three LLCs came out and went back into legal bankruptcy. In the process, he managed to generate $160 million in personal management and other fees from the moribund properties. In the end, he negotiated a 50-percent cut in his personal liability, which he settled by selling other properties, including the Plaza Hotel, the Trump shuttle, his yacht, and his private jet. Then he walked away with his $913 million in tax losses that he used to offset his income for another 15 years.
This time, Trump is personally at-risk for $410 million in debts owed by his LLCs. All of it is interest-only debt with the full principal coming due in 2024. (Again, just what you would want from a nearly 80-year-old president ending his second term: A giant balloon payment to unknown lenders.) Since those LLCs lose millions of dollars every year, Trump inevitably will have to put most or all of his golf clubs into legal bankruptcy.
If he is serving a second term as president in 2024, no one can doubt that he will use his presidential leverage to cut the sweetest of sweetheart deals, probably involving massive loan forgiveness. (Trump is so used to the idea of shortchanging his lenders that he suggested give holders of U.S. debt a haircut when he was running for office in 2016. He was talked out of it when told it could lead to a worldwide financial collapse if 200 years of “full, faith and credit” of Americas debt came crashing down.) If Trump’s presidency ends in January 2021, the required repayment may be greater. Creditors usually cannot seize a person’s primary residence for such debts, so Trump will keep Mar-A-Lago and perhaps have to turn over the Trump Tower triplex penthouse.
Whether or not Donald Trump is president when the bills come due in 2024, he may still walk away with up to $150 million in tax savings to use over the next decade. So, whatever the verdict is on Trump’s business acumen, he has a singular knack for making money while losing other people’s money.


washingtonmonthly--2020-10-12--Republicans Decry Nonexistent Religious Bigotry at Coney Barrett Hearing

If one can imagine a child ’ s birthday party in a busy abattoir , one can also approximate the unreality of the Senate Judiciary Committee ’ s first day of hearings on the nomination of Amy Coney Barrett to the Supreme Court .
Not only were there multiple subtexts underneath the words of witnesses and senators , but quietly in the corner , his scythe at his side , sat the Angel of Death with his gift of COVID-19 .
The grim reaper was impossible to ignore despite chairman Lindsey Graham ’ s almost hebephrenic attempts to wish him @ @ @ @ @ @ @ place on an actual split-screen—Senators Dianne Feinstein , Patrick Leahy , and Kamala Harris gave their opening statements remotely .
But all of it was set in one of two different worlds .
One is inhabited by Democrats , who persistently questioned the nomination ’ s potential effect on the Affordable Care Act case now pending before the Court , and the other by Republicans , who screamed that the Democrats were actually attacking Barrett ’ s Catholic faith and her family–or if they weren ’ t some of them once had–or some @ @ @ @ @ @ @ they were—I know , Mr. Chairman !
Call on me , Mr. Chairman !
—they were thinking it !
Right there , over there , listen to those voices in the air , I ’ m not mad , I tell you !
The apex of this nonsense brought us Senator John Kennedy of Louisiana , more or less out of the blue , predicting that “ before it ’ s all over they may call you Rosemary ’ s Baby !
” Kennedy , who holds a law degree from Magdalen College @ @ @ @ @ @ @ nearer the target with an allusion to the Palliser novels , but , you know , Louisiana , least common denominator , etc .
The nominee herself , and her picture-perfect family , were probably the least conspicuous participants in the room .
All of the 48-year-old ’ s appealing qualities are irrelevant to the Democratic critique of her nomination .
There were ( no matter what Fox News will report tonight ) no attacks on Barrett ’ s faith , family , or her membership in a specialized Catholic lay order called @ @ @ @ @ @ @ Democratic Senator focused on one point : Donald Trump has promised that any justice he appoints will vote to strike down the Affordable Care Act .
The Act is on the block in a case brought by Republican state governments that will be heard a week after the election , Barrett ’ s scholarly writings have criticized the Court ’ s decisions upholding the Act ; Trump and McConnell ’ s insistence on seating Barrett before Election Day must surely be connected to that coincidence .
Over and over Democrats have stuck to @ @ @ @ @ @ @ photographs ) to their constituents who face financial ruin or death should the Act , and its protection of pre-existing conditions , be struck down .
Everyone in the hearing room , or connected to it by video , knows that the end of what would only be called a “ process ” in a country that has made the transition to Full Banana is foreordained .
A far-right Justice will be confirmed hours before the election to take the seat left vacant by the death of Ruth Bader Ginsburg .
Barring a @ @ @ @ @ @ @ is implicitly claiming a monopoly ) , the Democrats can ’ t win that vote ; so they focused on winning a different vote by reminding the voters that the Republicans are planning to destroy Obamacare .
Vice-presidential nominee Harris appeared remotely , pictured against a distinctly presidential-looking background of American flags .
She barely acknowledged the nominee or the nomination .
Instead , she warned viewers that , having failed repeatedly to repeal the ACA , Senate Republicans “ are trying to bypass the will of the voters and have their Supreme @ @ @ @ @ @ @ .
….They are trying to get a Justice on the Court in time to strip away the protections of the Affordable Care Act.
” Is focusing on the ACA a wise political strategy ?
I am the last person you should ask .
Is the implication that Barrett is a “ no ” vote in the Obamacare case fair ?
The answer there is a qualified “ yes.
” Barrett , in her essay “ Countering the Majoritarian Difficulty , ” was distinctly acerbic in her view of Chief Justice John Roberts ’ @ @ @ @ @ @ @ construing the “ penalty ” imposed by the “ individual mandate ” as a tax .
She also raised a professorial eye at his statutory opinion , King v. Burwell , which upheld the Act ’ s subsidies on federally established health care exchanges against an outlandish conservative reading that would have wrecked them .
She did not write “ I would have voted the other way , ” but it is not only fair to zero in on this issue—it is remarkably close to the kind of thing Senators should do in @ @ @ @ @ @ @ to expand on the hints in her article , she can ; if she does not wish to , Senators and viewers can draw their own conclusions .
There was no hint that the Democrats demand commitments to rule a certain way in a certain type of case ( which a nominee can justly and swiftly dismiss as illegitimate ) .
There was not even much reference to Trump saying publicly that he needs her on the Court to make sure election challenges go his way ( though I hope that will come @ @ @ @ @ @ @ Kennedy and his more subdued colleagues can perhaps be forgiven a touch of vertigo verging on delirium .
Monday they were treated to the dog that didn ’ t bark : a political trap of religious inquiry into which Senate Democrats did not stumble .

If one can imagine a child’s birthday party in a busy abattoir, one can also approximate the unreality of the Senate Judiciary Committee’s first day of hearings on the nomination of Amy Coney Barrett to the Supreme Court. Not only were there multiple subtexts underneath the words of witnesses and senators, but quietly in the corner, his scythe at his side, sat the Angel of Death with his gift of COVID-19. The grim reaper was impossible to ignore despite chairman Lindsey Graham’s almost hebephrenic attempts to wish him away.
Some of the proceedings took place on an actual split-screen—Senators Dianne Feinstein, Patrick Leahy, and Kamala Harris gave their opening statements remotely. But all of it was set in one of two different worlds. One is inhabited by Democrats, who persistently questioned the nomination’s potential effect on the Affordable Care Act case now pending before the Court, and the other by Republicans, who screamed that the Democrats were actually attacking Barrett’s Catholic faith and her family–or if they weren’t some of them once had–or some people that Democrats hang out with had–or they were—I know, Mr. Chairman! Call on me, Mr. Chairman!—they were thinking it!
Right there, over there, listen to those voices in the air, I’m not mad, I tell you! The apex of this nonsense brought us Senator John Kennedy of Louisiana, more or less out of the blue, predicting that “before it’s all over they may call you Rosemary’s Baby!” Kennedy, who holds a law degree from Magdalen College, Oxford, could probably have gotten nearer the target with an allusion to the Palliser novels, but, you know, Louisiana, least common denominator, etc.
The nominee herself, and her picture-perfect family, were probably the least conspicuous participants in the room. All of the 48-year-old’s appealing qualities are irrelevant to the Democratic critique of her nomination. There were (no matter what Fox News will report tonight) no attacks on Barrett’s faith, family, or her membership in a specialized Catholic lay order called People of Praise.
Instead, every Democratic Senator focused on one point: Donald Trump has promised that any justice he appoints will vote to strike down the Affordable Care Act. The Act is on the block in a case brought by Republican state governments that will be heard a week after the election, Barrett’s scholarly writings have criticized the Court’s decisions upholding the Act; Trump and McConnell’s insistence on seating Barrett before Election Day must surely be connected to that coincidence. Over and over Democrats have stuck to the script, pointing (with heart-tugging photographs) to their constituents who face financial ruin or death should the Act, and its protection of pre-existing conditions, be struck down.
Everyone in the hearing room, or connected to it by video, knows that the end of what would only be called a “process” in a country that has made the transition to Full Banana is foreordained. A far-right Justice will be confirmed hours before the election to take the seat left vacant by the death of Ruth Bader Ginsburg. Barring a miracle (upon which the pro-Barrett side is implicitly claiming a monopoly), the Democrats can’t win that vote; so they focused on winning a different vote by reminding the voters that the Republicans are planning to destroy Obamacare.
Vice-presidential nominee Harris appeared remotely, pictured against a distinctly presidential-looking background of American flags. She barely acknowledged the nominee or the nomination. Instead, she warned viewers that, having failed repeatedly to repeal the ACA, Senate Republicans “are trying to bypass the will of the voters and have their Supreme Court do their dirty work for them. ….They are trying to get a Justice on the Court in time to strip away the protections of the Affordable Care Act.”
Is focusing on the ACA a wise political strategy? I am the last person you should ask. Is the implication that Barrett is a “no” vote in the Obamacare case fair? The answer there is a qualified “yes.” Barrett, in her essay “Countering the Majoritarian Difficulty,” was distinctly acerbic in her view of Chief Justice John Roberts’s opinion that saved the Act by construing the “penalty” imposed by the “individual mandate” as a tax. She also raised a professorial eye at his statutory opinion, King v. Burwell, which upheld the Act’s subsidies on federally established health care exchanges against an outlandish conservative reading that would have wrecked them. She did not write “I would have voted the other way,” but it is not only fair to zero in on this issue—it is remarkably close to the kind of thing Senators should do in a confirmation hearing. If she wants to expand on the hints in her article, she can; if she does not wish to, Senators and viewers can draw their own conclusions.
There was no hint that the Democrats demand commitments to rule a certain way in a certain type of case (which a nominee can justly and swiftly dismiss as illegitimate). There was not even much reference to Trump saying publicly that he needs her on the Court to make sure election challenges go his way (though I hope that will come up in questioning on Tuesday).
Kennedy and his more subdued colleagues can perhaps be forgiven a touch of vertigo verging on delirium. Monday they were treated to the dog that didn’t bark: a political trap of religious inquiry into which Senate Democrats did not stumble.


washingtonmonthly--2020-10-12--How Can You Tell a Senate Republican Wants a Coronavirus Deal?

“ On a conference call Saturday morning with Treasury Secretary Steven Mnuchin and White House chief of staff Mark Meadows , ” reports the Washington Post , “ multiple GOP senators denounced the proposal , attacking the price tag as too big , questioning the overall direction , and criticizing individual proposals , according to several people who participated in the call or were briefed on its contents.
” Similarly , the New York Times says the prospect of a stimulus package approaching $ 2 trillion ( Trump ’ s latest offer is $ 1.8 trillion ) is “ deeply @ @ @ @ @ @ @ increasingly contemplating their party ’ s future after Mr. Trump departs the political scene and are determined to reclaim the mantle of the party of fiscal restraint.
” The theme of all three stories is that Senate Republicans will pay a heavy price on Election Day if they approve an expensive Covid stimulus bill .
“ Sen .
Marsha Blackburn ( R-Tenn. ) predicted that advancing such legislation would prove the ‘ death knell ’ of the GOP majority , ” says the Post .
In Politico , Sen. John Barrasso ( R.-Wyo @ @ @ @ @ @ @ enormous betrayal by our supporters , ” and Sen. Rick Scott ( R.-Fla. ) says , “ I don ’ t get it.
” But none of these people is running for re-election this year !
Sen. Lamar Alexander , R.-Tenn. , who ’ s playing a lead role opposing a Covid stimulus bill , is retiring , which is to say he will never run for re-election again .
Meanwhile , among the 21 Senate Republicans who are up for re-election , I can ’ t find a single one who ’ @ @ @ @ @ @ @ deal except for Ben Sasse ( R.-Neb . )
, and that was more than two months ago ; I can ’ t find anything Sasse has said about it lately .
If these Senate Republicans have anything at all to say these days about a bipartisan stimulus deal , it ’ s that Republicans will get creamed if they don ’ t get one .
News coverage has pointed out that various “ vulnerable ” Senate Republicans ( for example , Susan Collins ) are feeling rather desperate for a stimulus deal @ @ @ @ @ @ @ t making clear is that only about half the Senate Republicans up for re-election this year are thought to be even potentially vulnerable .
The other half will probably be fine .
Yet none of these relatively safe Senate Republicans has spoken out publicly against a stimulus deal either .
It would seem that a prerequisite to denouncing a potential Covid stimulus deal right now is that you don ’ t have to face the voters anytime soon .
It ’ s possible I missed one or two Senate Republicans up for re-election @ @ @ @ @ @ @ against a big Covid stimulus .
My method for checking is not foolproof .
But even if I missed one or two , it will remain true that the Senate Republicans whom we must judge the best experts on what will help or hurt the party ’ s chances of keeping its Senate majority are not , as a rule , opposing publicly a stimulus deal—even if they ’ re expected to win .
Imagine that you were sitting on a stove and somebody turned on the burner .
“ Ouch , ” @ @ @ @ @ @ @ !
” Imagine that I , observing you from a distance , were to reply , “ No , it doesn ’ t .
What would really hurt would be if someone turned that burner off.
” Whose opinion would a disinterested third party value ?
Whose opinion would that disinterested third party discard ?
To ask these questions is to answer them .

“Senate Republicans Lambaste Potential Coronavirus Deal,” reads a headline in Politico.
“On a conference call Saturday morning with Treasury Secretary Steven Mnuchin and White House chief of staff Mark Meadows,” reports the Washington Post, “multiple GOP senators denounced the proposal, attacking the price tag as too big, questioning the overall direction, and criticizing individual proposals, according to several people who participated in the call or were briefed on its contents.”
Similarly, the New York Times says the prospect of a stimulus package approaching $2 trillion (Trump’s latest offer is $1.8 trillion) is “deeply alarming to most Republicans, who are increasingly contemplating their party’s future after Mr. Trump departs the political scene and are determined to reclaim the mantle of the party of fiscal restraint.”
The theme of all three stories is that Senate Republicans will pay a heavy price on Election Day if they approve an expensive Covid stimulus bill. “Sen. Marsha Blackburn (R-Tenn.) predicted that advancing such legislation would prove the ‘death knell’ of the GOP majority,” says the Post. In Politico, Sen. John Barrasso (R.-Wyo.) says he fears “an enormous betrayal by our supporters,” and Sen. Rick Scott (R.-Fla.) says, “I don’t get it.”
But none of these people is running for re-election this year! Sen. Lamar Alexander, R.-Tenn., who’s playing a lead role opposing a Covid stimulus bill, is retiring, which is to say he will never run for re-election again.
Meanwhile, among the 21 Senate Republicans who are up for re-election, I can’t find a single one who’s come out publicly against a stimulus deal except for Ben Sasse (R.-Neb.), and that was more than two months ago; I can’t find anything Sasse has said about it lately. If these Senate Republicans have anything at all to say these days about a bipartisan stimulus deal, it’s that Republicans will get creamed if they don’t get one.
News coverage has pointed out that various “vulnerable” Senate Republicans (for example, Susan Collins) are feeling rather desperate for a stimulus deal. But what these stories aren’t making clear is that only about half the Senate Republicans up for re-election this year are thought to be even potentially vulnerable. The other half will probably be fine. Yet none of these relatively safe Senate Republicans has spoken out publicly against a stimulus deal either.
It would seem that a prerequisite to denouncing a potential Covid stimulus deal right now is that you don’t have to face the voters anytime soon.
It’s possible I missed one or two Senate Republicans up for re-election this year who have spoken out lately against a big Covid stimulus. My method for checking is not foolproof. But even if I missed one or two, it will remain true that the Senate Republicans whom we must judge the best experts on what will help or hurt the party’s chances of keeping its Senate majority are not, as a rule, opposing publicly a stimulus deal—even if they’re expected to win.
Imagine that you were sitting on a stove and somebody turned on the burner. “Ouch,” you might say, “that hurts!” Imagine that I, observing you from a distance, were to reply, “No, it doesn’t. What would really hurt would be if someone turned that burner off.” Whose opinion would a disinterested third party value? Whose opinion would that disinterested third party discard? To ask these questions is to answer them.
This article originally appeared in Backbencher


washingtonmonthly--2020-10-13--Finally, Democrats Seem Poised to Win at Redistricting

No one needs a reminder of how devastating the 2010 midterm elections were for Democrats .
In addition to losing control of the House , Republicans picked up six seats in the Senate .
But what can sometimes get lost in our focus on national politics is that Republicans gained trifectas in 12 states—meaning that the GOP won control of both the executive and legislative branch .
The Republican victories extended beyond traditional red states to include , ominously , Wisconsin , Michigan , Ohio , and Pennsylvania .
That gave Republicans complete control over the process of redistricting in @ @ @ @ @ @ @ net average gain of 19 congressional seats , according to a report from the Center for American Progress .
But the impact was just as strongly felt at the state level .
For example , Republicans took control of state legislatures in both Minnesota and Wisconsin .
Scott Walker became the governor of Wisconsin , while my home state of Minnesota barely escaped a Republican trifecta when Democrat Mark Dayton won the governor ’ s race by a mere 0.4 percent in a three-way race .
With their trifecta in Wisconsin , Republicans @ @ @ @ @ @ @ favorable to their party .
But in Minnesota , the governor ’ s veto of the Republican plan sent it to a neutral court-appointed commission .
The result was that in 2012 , Democrats took back control of the state legislative bodies in Minnesota , but Republicans have maintained a gerrymandered majority in Wisconsin throughout the decade .
In 2013 , journalist Craig Gilbert documented what happened in these two states that , “ in their underlying political makeup , may be as similar as any two states in America.
” Wisconsin has @ @ @ @ @ @ @ expanding private school vouchers , and rejecting hundreds of millions of dollars in federal funding .
Minnesota has been raising taxes , empowering unions , legalizing same-sex marriage , and embracing Obamacare .
Wisconsin is getting its most conservative governance in decades .
Minnesota is getting its most liberal governance in decades .
The good news is that the 2020 election provides Democrats with an historic opportunity to reverse what happened in 2010 .
This November is the first time in decades that Democrats hold an advantage heading into a presidential election that @ @ @ @ @ @ @ Not only do polls show Biden leading the race , the party looks strong up and down the ticket .
Aiding in the effort to end gerrymandering are former Attorney General Eric Holder and Barack Obama , who teamed up to create the National Democratic Redistricting Committee ( NDRC ) , a political action committee whose mission is to create fair districts where Democrats can compete .
Here is how Holder made the case : • None Investing in local races that are crucial for redistricting .
• None Building a grassroots campaign @ @ @ @ @ @ @ the election days away , the focus is on number one .
The committee is targeting local elections in 13 states : Florida , Georgia , Kansas , Kentucky , Louisiana , Minnesota , New Hampshire , North Carolina , Ohio , Pennsylvania , Texas , and Virginia and endorsed candidates in all of them , including three gubernatorial races and 17 state legislative chambers .
Breaking up Republican trifectas is a primary goal of these efforts , especially in states like Florida and Texas that are likely to gain congressional seats based @ @ @ @ @ @ @ Abby Springs from Progress Texas—a non-profit media organization promoting progressive messages and action—it would only take nine seats to give Democrats control of the Texas House .
She identifies 22 opportunities .
Data guru Sam Wang has designed a model at Princeton Election Consortium that identifies the races where voters have the most leverage to prevent partisan gerrymandering in Texas , Minnesota , Kansas , Florida , and North Carolina .
He points out that a few hundred voters mobilized in the right districts could make all the difference .
As an example @ @ @ @ @ @ @ matter , Wang , Springs , and NDRC all target the state house race in Texas ’ s 134th district where incumbent Republican Sarah Davis faces a challenge from Democrat Ann Johnson .
In this southwestern suburb of Houston , Beto O ’ Rourke won his 2018 Senate race with 60 percent of the vote , while Davis squeezed out a win by only 5,600 votes .
On her web page , Johnson addresses why she ’ s in this fight .
At this point , the best a Democrat in the Texas @ @ @ @ @ @ @ block GOP policies .
But if the maps in the state were drawn fairly in 2021 in a way that gives Democrats the chance to compete , Texans could begin to imagine a state where more people get access to health insurance , a woman ’ s right to chose is protected , common sense gun safety laws are enacted , and the existential threat of climate change is addressed .
That is what becomes possible if Democrats understand how much statehouse races matter and make the most of this once-in-a-decade opportunity to @ @ @

No one needs a reminder of how devastating the 2010 midterm elections were for Democrats. In addition to losing control of the House, Republicans picked up six seats in the Senate. But what can sometimes get lost in our focus on national politics is that Republicans gained trifectas in 12 states—meaning that the GOP won control of both the executive and legislative branch. The Republican victories extended beyond traditional red states to include, ominously, Wisconsin, Michigan, Ohio, and Pennsylvania. That gave Republicans complete control over the process of redistricting in those 12 states, resulting in a net average gain of 19 congressional seats, according to a report from the Center for American Progress.
But the impact was just as strongly felt at the state level. For example, Republicans took control of state legislatures in both Minnesota and Wisconsin. Scott Walker became the governor of Wisconsin, while my home state of Minnesota barely escaped a Republican trifecta when Democrat Mark Dayton won the governor’s race by a mere 0.4 percent in a three-way race.
With their trifecta in Wisconsin, Republicans passed a redistricting plan that was hugely favorable to their party. But in Minnesota, the governor’s veto of the Republican plan sent it to a neutral court-appointed commission. The result was that in 2012, Democrats took back control of the state legislative bodies in Minnesota, but Republicans have maintained a gerrymandered majority in Wisconsin throughout the decade. In 2013, journalist Craig Gilbert documented what happened in these two states that, “in their underlying political makeup, may be as similar as any two states in America.”
Wisconsin has been cutting taxes, curbing unions, expanding private school vouchers, and rejecting hundreds of millions of dollars in federal funding. Minnesota has been raising taxes, empowering unions, legalizing same-sex marriage, and embracing Obamacare. Wisconsin is getting its most conservative governance in decades. Minnesota is getting its most liberal governance in decades.
The good news is that the 2020 election provides Democrats with an historic opportunity to reverse what happened in 2010. This November is the first time in decades that Democrats hold an advantage heading into a presidential election that is also a prelude to redistricting. Not only do polls show Biden leading the race, the party looks strong up and down the ticket.
Aiding in the effort to end gerrymandering are former Attorney General Eric Holder and Barack Obama, who teamed up to create the National Democratic Redistricting Committee (NDRC), a political action committee whose mission is to create fair districts where Democrats can compete. Here is how Holder made the case:
NDRC’s comprehensive approach includes four strategies.
Investing in local races that are crucial for redistricting. Supporting redistricting reforms across the nation. Taking legal action to overturn gerrymandered maps and protect voting rights. Building a grassroots campaign to prepare for redistricting battles.
With the election days away, the focus is on number one. The committee is targeting local elections in 13 states: Florida, Georgia, Kansas, Kentucky, Louisiana, Minnesota, New Hampshire, North Carolina, Ohio, Pennsylvania, Texas, and Virginia and endorsed candidates in all of them, including three gubernatorial races and 17 state legislative chambers.
Breaking up Republican trifectas is a primary goal of these efforts, especially in states like Florida and Texas that are likely to gain congressional seats based on recent population estimates. According to Abby Springs from Progress Texas—a non-profit media organization promoting progressive messages and action—it would only take nine seats to give Democrats control of the Texas House. She identifies 22 opportunities.
Data guru Sam Wang has designed a model at Princeton Election Consortium that identifies the races where voters have the most leverage to prevent partisan gerrymandering in Texas, Minnesota, Kansas, Florida, and North Carolina. He points out that a few hundred voters mobilized in the right districts could make all the difference.
As an example of how only a few hundred votes matter, Wang, Springs, and NDRC all target the state house race in Texas’s 134th district where incumbent Republican Sarah Davis faces a challenge from Democrat Ann Johnson. In this southwestern suburb of Houston, Beto O’Rourke won his 2018 Senate race with 60 percent of the vote, while Davis squeezed out a win by only 5,600 votes. On her web page, Johnson addresses why she’s in this fight.
Republicans have left 5 million Texans without health insurance, passed extreme anti-choice laws, kept guns in the hands of domestic abusers, denied climate change, and withheld billions for hurricane recovery and flood prevention. I’m a teacher, small-business owner and public interest lawyer, and I will fight to scrap those GOP policies.
At this point, the best a Democrat in the Texas state legislature could do is attempt to block GOP policies. But if the maps in the state were drawn fairly in 2021 in a way that gives Democrats the chance to compete, Texans could begin to imagine a state where more people get access to health insurance, a woman’s right to choose is protected, common sense gun safety laws are enacted, and the existential threat of climate change is addressed. That is what becomes possible if Democrats understand how much statehouse races matter and make the most of this once-in-a-decade opportunity to end gerrymandering.


washingtonmonthly--2020-10-13--Coney Barrett’s Moment of Truth

Coney Barrett’s Moment of Truth

Elena Kagan ( at that time , not a Justice ) once wrote that the leading characteristics of Supreme Court confirmation hearings are “ vacuity and farce.
” The nation has been served plenty of both in the ongoing hearings on Donald Trump ’ s emergency rush nomination of Amy Coney Barrett to the Supreme Court .
But there have been shreds of meat in the thin gruel .
Readers can pick the moments in which they found the most meaning .
For conservatives , I imagine that they may have been discussions of the future of religious liberty or @ @ @ @ @ @ @ children , two of them adopted from Haiti .
I found Sen. Sheldon Whitehouse electrifying in his presentation of the aggressive , all-encompassing role of “ dark money ” in the nomination and confirmation of Justices and of its unparalleled success at tilting the Court toward the interests of massed capital and away from those of ordinary people .
For me , however , what stands out most clearly is Barrett ’ s colloquy with Delaware Senator Chris Coons about what should be ( and may be ) the easiest question she will @ @ @ @ @ @ @ ” because let ’ s face it , gang , the fix is in ) she takes her seat : whether to recuse from a possible challenge to the 2020 election results by Donald Trump .
To an ordinary person , the question doesn ’ t seem hard .
Trump has proclaimed that he wants her on the court for precisely that case .
Coons , one of the Senate ’ s most notorious nice guys , engaged her repeatedly and respectfully on the recusal issue , and at length , he elicited @ @ @ @ @ @ @ certainly hope that all members of the Court have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people.
” That is about as far as she had gone , by the second day of hearings , to addressing that GOP elephant in the room .
But remarkably enough , answering Coons , she went on : That would be on the question of actual bias .
And you asked about the appearance of bias .
@ @ @ @ @ @ @ statute does require a Justice or judge to recuse when there ’ s an appearance of bias .
And what I will commit to every member of this committee , to every member of the Senate , and to the American people is that I will consider all factors that are relevant to that question … that requires recusal when there ’ s an appearance of bias .
And there is caselaw under the statute , and as I referenced earlier in describing the recusal process at the Supreme Court , it is @ @ @ @ @ @ @ Justices .
So I promise you that if I were confirmed and if an election dispute arises—both of which are ‘ ifs ’ –that I would very seriously undertake that process and I would consider every relevant factor .
I can ’ t commit to you right now for the reasons we talked about before , but I do assure you of my integrity and I do assure you that I would take that question very seriously .
For a brief moment , the unshakeable exterior of Saint Amy was pierced .
A @ @ @ @ @ @ @ her lead selling point—her unassailable goodness—could actually be doubted by Americans , even some who are not Democrats and that her name might be besmirched at the outset of her tenure .
It was oddly moving to see this hitherto-unruffled nominee visibly wrestling with a legal and ethical problem .
I say that not simply because it has not happened in the Barrett hearings before , but because it has rarely happened , in my years of watching these hearings , at all .
The ideal nominee ’ s demeanor is a mixture @ @ @ @ @ @ @ ’ s air of being utterly candid while giving absolutely nothing away .
Barrett is as much a master of the blank affect as were Sonia Sotomayor , Kagan herself , or Neil Gorsuch .
But on Tuesday , she was visibly troubled by Coons ’ s question and its tacit challenge to her integrity .
And while that was , in a human sense , poignant , I suggest we not read into it even the likelihood that a Justice Barrett would withhold her vote from the Trump side of an election @ @ @ @ @ @ @ That ’ s because history suggests that recusal looks oddly different from the viewpoint of a Justice comfortably ensconced in chambers than from that of a designee yearning for office .
William Rehnquist , while still an Associate Justice , cast the deciding vote in a case called Laird v. Tatum .
The case was a challenge to a secret Army Intelligence program of monitoring domestic anti-war groups .
Rehnquist was head of the Justice Department ’ s Office of Legal Counsel when the program was approved , and his recusal was considered @ @ @ @ @ @ @ .
Rehnquist ’ s vote , and the ensuing controversy , impelled Congress to tighten the recusal statute and remained an issue in 1986 when he was nominated as Chief Justice .
As for Barrett ’ s revered mentor , Antonin Scalia , refused to recuse himself from a case against then-Vice President Dick Cheney , despite a formal motion to do so .
He and Cheney were not only friends but had recently taken a hunting trip together .
Scalia dealt with the “ appearance of bias ” issued by expressing contempt @ @ @ @ @ @ @ integrity .
He later boasted that refusing recusal was one of his proudest moments on the bench .
So the question may look very different a month from now .
But Tuesday ’ s moment , nonetheless , gave us a brief peek at a real human being openly wrestling with a moral dilemma .
It is a moment that left me more , not less , puzzled over my single overarching question about the Barrett nomination .
This nominee is being wedged onto the Court by an abusive , dishonest , vulgar @ @ @ @ @ @ @ she will rule on important issues .
It is being rammed through the Senate by Republican leadership that scant moments ago was proclaiming as Holy Writ the rule that no Justice should be confirmed in an election year .
This judicial coup is being accomplished by a “ process ” that is not simply irregular , and indeed politically illegitimate , but potentially as epidemiologically disastrous as was the surreal unmasked ceremony at which her nomination was announced .
Even 88 of her Notre Dame colleagues ( none from the law school ) @ @ @ @ @ @ @ today , to stop the reckless rush to confirmation .
At the center of this moral swamp is St. Amy , a person whose life gives many real evidences of high morals and deep faith and good works .
Why would such a person lend herself to such a tawdry charade ?
I was raised with the same Bible as she , and as I recall , that book tells us in no uncertain terms that it profiteth no one to gain the world and lose a soul .
Not even gaining a @ @ @ @ @ @ @ sacrifice .
Having had a glimpse of the real person behind the mask , I remain puzzled .
I will not know the answer until it is far too late .

Elena Kagan (at that time, not a Justice) once wrote that the leading characteristics of Supreme Court confirmation hearings are “vacuity and farce.” The nation has been served plenty of both in the ongoing hearings on Donald Trump’s emergency rush nomination of Amy Coney Barrett to the Supreme Court.
But there have been shreds of meat in the thin gruel.
Readers can pick the moments in which they found the most meaning. For conservatives, I imagine that they may have been discussions of the future of religious liberty or of Barrett as a mother of seven children, two of them adopted from Haiti. I found Sen. Sheldon Whitehouse electrifying in his presentation of the aggressive, all-encompassing role of “dark money” in the nomination and confirmation of Justices and of its unparalleled success at tilting the Court toward the interests of massed capital and away from those of ordinary people.
For me, however, what stands out most clearly is Barrett’s colloquy with Delaware Senator Chris Coons about what should be (and may be) the easiest question she will face when (not “if,” because let’s face it, gang, the fix is in) she takes her seat: whether to recuse from a possible challenge to the 2020 election results by Donald Trump. To an ordinary person, the question doesn’t seem hard. Trump has proclaimed that he wants her on the court for precisely that case.
Coons, one of the Senate’s most notorious nice guys, engaged her repeatedly and respectfully on the recusal issue, and at length, he elicited from her this answer: “I certainly hope that all members of the Court have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people.” That is about as far as she had gone, by the second day of hearings, to addressing that GOP elephant in the room. But remarkably enough, answering Coons, she went on:
That would be on the question of actual bias. And you asked about the appearance of bias. And you’re right, the statute does require a Justice or judge to recuse when there’s an appearance of bias. And what I will commit to every member of this committee, to every member of the Senate, and to the American people is that I will consider all factors that are relevant to that question … that requires recusal when there’s an appearance of bias. And there is caselaw under the statute, and as I referenced earlier in describing the recusal process at the Supreme Court, it is always done with consultation with the other Justices. So I promise you that if I were confirmed and if an election dispute arises—both of which are ‘ifs’–that I would very seriously undertake that process and I would consider every relevant factor. I can’t commit to you right now for the reasons we talked about before, but I do assure you of my integrity and I do assure you that I would take that question very seriously.
For a brief moment, the unshakeable exterior of Saint Amy was pierced. A viewer could see that she grasped that her lead selling point—her unassailable goodness—could actually be doubted by Americans, even some who are not Democrats and that her name might be besmirched at the outset of her tenure.
It was oddly moving to see this hitherto-unruffled nominee visibly wrestling with a legal and ethical problem. I say that not simply because it has not happened in the Barrett hearings before, but because it has rarely happened, in my years of watching these hearings, at all. The ideal nominee’s demeanor is a mixture of bonhomie and opacity—a luxury auto salesman’s air of being utterly candid while giving absolutely nothing away. Barrett is as much a master of the blank affect as were Sonia Sotomayor, Kagan herself, or Neil Gorsuch.
But on Tuesday, she was visibly troubled by Coons’s question and its tacit challenge to her integrity. And while that was, in a human sense, poignant, I suggest we not read into it even the likelihood that a Justice Barrett would withhold her vote from the Trump side of an election dispute if that vote were needed. That’s because history suggests that recusal looks oddly different from the viewpoint of a Justice comfortably ensconced in chambers than from that of a designee yearning for office. William Rehnquist, while still an Associate Justice, cast the deciding vote in a case called Laird v. Tatum. The case was a challenge to a secret Army Intelligence program of monitoring domestic anti-war groups. Rehnquist was head of the Justice Department’s Office of Legal Counsel when the program was approved, and his recusal was considered an obvious necessity by legal ethics experts. Rehnquist’s vote, and the ensuing controversy, impelled Congress to tighten the recusal statute and remained an issue in 1986 when he was nominated as Chief Justice.
As for Barrett’s revered mentor, Antonin Scalia, refused to recuse himself from a case against then-Vice President Dick Cheney, despite a formal motion to do so. He and Cheney were not only friends but had recently taken a hunting trip together. Scalia dealt with the “appearance of bias” issued by expressing contempt for anyone stupid enough to question his integrity. He later boasted that refusing recusal was one of his proudest moments on the bench.
So the question may look very different a month from now. But Tuesday’s moment, nonetheless, gave us a brief peek at a real human being openly wrestling with a moral dilemma. It is a moment that left me more, not less, puzzled over my single overarching question about the Barrett nomination. This nominee is being wedged onto the Court by an abusive, dishonest, vulgar presidential monster, who has promised how she will rule on important issues. It is being rammed through the Senate by Republican leadership that scant moments ago was proclaiming as Holy Writ the rule that no Justice should be confirmed in an election year. This judicial coup is being accomplished by a “process” that is not simply irregular, and indeed politically illegitimate, but potentially as epidemiologically disastrous as was the surreal unmasked ceremony at which her nomination was announced. Even 88 of her Notre Dame colleagues (none from the law school) pleaded with her, in a letter today, to stop the reckless rush to confirmation.
At the center of this moral swamp is St. Amy, a person whose life gives many real evidences of high morals and deep faith and good works.
Why would such a person lend herself to such a tawdry charade?
I was raised with the same Bible as she, and as I recall, that book tells us in no uncertain terms that it profiteth no one to gain the world and lose a soul. Not even gaining a life’s ambition is worth that sacrifice.
Having had a glimpse of the real person behind the mask, I remain puzzled. I will not know the answer until it is far too late.


washingtonmonthly--2020-10-14--Be Afraid of Coney Barrett’s Views on Supreme Court Precedents

Shortly before the 2016 election , Professor Amy Coney Barrett , in an article co-authored with another Notre Dame professor , John Copeland Nagle , offered a view about the discussion of cases in judicial confirmation hearings .
“ Constitutional adjudication , ” she said in an article entitled “ Constitutional Originalism , ” “ is not like a confirmation hearing , in which answering hypothetical questions about particular precedents is par for the course.
” That was then .
How could Coney Barrett have known that Donald Trump would eke out a minority win and turn to her as @ @ @ @ @ @ @ National Federation of Independent Business v. Sebelius or Roe v. Wade ?
If she had known that such a prize awaited her grasp , surely , she would have hedged .
Hedging , the nation learned on Wednesday , is an important part of her skill palette .
In a dramatic colloquy with Sen. Richard Blumenthal ( D-Conn. ) , she answered questions about some precedents .
Brown v. Board of Education , with its ban on school segregation by law ?
Correctly decided , she said .
Loving v. Virginia , with @ @ @ @ @ @ @ “ racial integrity ” laws that forbade interracial marriage ?
Correctly decided .
Griswold v. Connecticut , which said that the right of privacy means states can not make it a crime for married couples to use contraception ?
No , she said .
It would be improper for her to give an opinion on that precedent .
Sen. Blumenthal pointed out that , in their confirmations , Justices Anthony Kennedy , John Roberts , Samuel Alito , Sonia Sotomayor , and Elena Kagan had freely answered the same question .
Barrett would @ @ @ @ @ @ @ worry , she said , “ I think that Griswold is very , very , very , very , very , very unlikely to go anywhere.
” For that to happen , she explained , a legislature would have to outlaw contraception , and a lower court would have to uphold the ban .
To be brutally frank , I am not comforted even by six “ verys.
” I hear behind those words the message , “ Griswold is absolutely safe as long as no one brings us a good solid case @ @ @ @ @ @ @ , it is hard to overstate how radical the Republican majorities in some red states ( such as her home state , Indiana , or her birthplace , Louisiana ) are .
Survey the spectrum of aggressive anti-abortion statutes they have passed .
And of course , Griswold is the key precedent behind a number of rights , including the right to engage in consensual sex with a willing adult partner ( Lawrence v. Texas ) and to make the choice of abortion ( Roe v. Wade , Planned Parenthood v. Casey , @ @ @ @ @ @ @ , and same-sex marriage ( Obergefell v. Hodges ) .
Abortion restrictions and LGBTQ discrimination statutes aren ’ t hypothetical ; they are already in the Court ’ s inbox .
Barely a week ago , Justices Alito and Thomas , in a separate opinion , expressed the view that in Obergefell , the Court had created “ a problem that only it can fix.
” The fact is that , from my reading of her work , Barrett ’ s theory of stare decisis is more radical than that of anyone now @ @ @ @ @ @ @ simply doesn ’ t believe in any precedent he doesn ’ t like .
Barrett hasn ’ t gone that far .
But in the essay , I quoted above , she explained her theory of “ super precedent.
” It ’ s a view that goes considerably above what I have seen anyone but Thomas embrace .
The term “ super precedent ” was coined by then-University of Chicago Professors Richard Posner and William Landes .
It has become a general legal concept , most rigorously defined by University of North Carolina @ @ @ @ @ @ @ influential 2008 book , The Power of Precedent .
They are Others quibble with this or that part of the definition , but the term properly applies to Griswold which struck down a state law barring the sale of contraceptives even to married couples .
Contraception , in particular , and the entire realm of sexual privacy and autonomy , are critical to America ’ s existence as a free society in the year 2020 .
Here ’ s a different definition offered by Barrett in her co-authored 2016 article : Despite its @ @ @ @ @ @ @ decisis debate , the challenge that super precedent poses for originalism is not really one of stare decisis .
Stare decisis is a self-imposed constraint on the Court ’ s ability to overrule its prior cases .
Its constraint operates ( or yields ) when the Court is asked to overturn a precedent .
In the context of super precedent , however , that question is never asked .
If it were , the precedent would no longer be “ super , ” because the condition necessary for super precedent status—that its overruling @ @ @ @ @ @ @ Stare decisis is not what holds a super precedent in place , for the force of a super precedent does not derive from the Court ’ s refusal to overrule it .
Rather , it stays in place largely because it stays off the Court ’ s agenda .
This definition reminds me of the old joke that explains how to tell time with a stopped clock .
All you have to do is watch the clock carefully , and at the very moment it is right , that is the correct time @ @ @ @ @ @ @ tell a super precedent by the ones that are never challenged , but as soon as they are , they aren ’ t super anymore .
By that definition , Griswold may be safe … for the nonce .
In the conservative playbook , first to fall would be Obergefell ( perhaps not overruled but re-interpreted to provide same-sex couples with something like Ruth Bader Ginsburg ’ s “ skim-milk marriage ” ) .
Then would come Casey and Roe , which will be overruled in all but name .
Then , given @ @ @ @ @ @ @ the right , and the nightmarish extremism of some of his lower-court judges , it will be time to serve up a juicy challenge Griswold .
And for a host of other morality and religion-based restrictions on what was once known as the private realm .
There are legislators out there ready to move in that direction , and apparently , there will soon be a Justice ready to move with them .

Shortly before the 2016 election, Professor Amy Coney Barrett, in an article co-authored with another Notre Dame professor, John Copeland Nagle, offered a view about the discussion of cases in judicial confirmation hearings. “Constitutional adjudication,” she said in an article entitled “Constitutional Originalism,” “is not like a confirmation hearing, in which answering hypothetical questions about particular precedents is par for the course.”
That was then. How could Coney Barrett have known that Donald Trump would eke out a minority win and turn to her as his proxy to roll back precedents like National Federation of Independent Business v. Sebelius or Roe v. Wade? If she had known that such a prize awaited her grasp, surely, she would have hedged.
Hedging, the nation learned on Wednesday, is an important part of her skill palette. In a dramatic colloquy with Sen. Richard Blumenthal (D-Conn.), she answered questions about some precedents. Brown v. Board of Education, with its ban on school segregation by law? Correctly decided, she said. Loving v. Virginia, with its ban on “miscegenation” and “racial integrity” laws that forbade interracial marriage? Correctly decided.
Griswold v. Connecticut, which said that the right of privacy means states cannot make it a crime for married couples to use contraception?
Judge Barrett?
No, she said. It would be improper for her to give an opinion on that precedent. Sen. Blumenthal pointed out that, in their confirmations, Justices Anthony Kennedy, John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan had freely answered the same question. Barrett would not be moved. But not to worry, she said, “I think that Griswold is very, very, very, very, very, very unlikely to go anywhere.” For that to happen, she explained, a legislature would have to outlaw contraception, and a lower court would have to uphold the ban.
To be brutally frank, I am not comforted even by six “verys.” I hear behind those words the message, “Griswold is absolutely safe as long as no one brings us a good solid case that challenges it.”
For one thing, it is hard to overstate how radical the Republican majorities in some red states (such as her home state, Indiana, or her birthplace, Louisiana) are. Survey the spectrum of aggressive anti-abortion statutes they have passed. And of course, Griswold is the key precedent behind a number of rights, including the right to engage in consensual sex with a willing adult partner (Lawrence v. Texas) and to make the choice of abortion (Roe v. Wade, Planned Parenthood v. Casey, Whole Woman’s Health v. Hellerstedt, and same-sex marriage (Obergefell v. Hodges). Abortion restrictions and LGBTQ discrimination statutes aren’t hypothetical; they are already in the Court’s inbox. Barely a week ago, Justices Alito and Thomas, in a separate opinion, expressed the view that in Obergefell, the Court had created “a problem that only it can fix.”
The fact is that, from my reading of her work, Barrett’s theory of stare decisis is more radical than that of anyone now on the Court except Thomas, who simply doesn’t believe in any precedent he doesn’t like.
Barrett hasn’t gone that far. But in the essay, I quoted above, she explained her theory of “super precedent.” It’s a view that goes considerably above what I have seen anyone but Thomas embrace.
The term “super precedent” was coined by then-University of Chicago Professors Richard Posner and William Landes. It has become a general legal concept, most rigorously defined by University of North Carolina Professor, Michael Gerhardt, in his influential 2008 book, The Power of Precedent. They are
[c]onstitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently approved over significant periods of time. These are decisions which have been so repeatedly and widely cited for so long that their meaning and value have increased to the point of being secured by enduring networks. … These decisions are the clearest instances in which the institutional values promoted by fidelity to precedent—consistency, stability, predictability, and social reliance—are compelling.
Others quibble with this or that part of the definition, but the term properly applies to Griswold which struck down a state law barring the sale of contraceptives even to married couples. Contraception, in particular, and the entire realm of sexual privacy and autonomy, are critical to America’s existence as a free society in the year 2020.
Here’s a different definition offered by Barrett in her co-authored 2016 article:
Despite its usual framing as part of the stare decisis debate, the challenge that super precedent poses for originalism is not really one of stare decisis. Stare decisis is a self-imposed constraint on the Court’s ability to overrule its prior cases. Its constraint operates (or yields) when the Court is asked to overturn a precedent. In the context of super precedent, however, that question is never asked. If it were, the precedent would no longer be “super,” because the condition necessary for super precedent status—that its overruling be unthinkable—would no longer hold true. Stare decisis is not what holds a super precedent in place, for the force of a super precedent does not derive from the Court’s refusal to overrule it. Rather, it stays in place largely because it stays off the Court’s agenda.
This definition reminds me of the old joke that explains how to tell time with a stopped clock. All you have to do is watch the clock carefully, and at the very moment it is right, that is the correct time. By similar logic, you can tell a super precedent by the ones that are never challenged, but as soon as they are, they aren’t super anymore.
By that definition, Griswold may be safe … for the nonce. In the conservative playbook, first to fall would be Obergefell (perhaps not overruled but re-interpreted to provide same-sex couples with something like Ruth Bader Ginsburg’s “skim-milk marriage”). Then would come Casey and Roe, which will be overruled in all but name.
Then, given the hostility to contraception in parts of the right, and the nightmarish extremism of some of his lower-court judges, it will be time to serve up a juicy challenge Griswold. And for a host of other morality and religion-based restrictions on what was once known as the private realm.
There are legislators out there ready to move in that direction, and apparently, there will soon be a Justice ready to move with them.