Political Animal

Why Is Trump Attacking Justice Sotomayor?

You might be wondering why Trump decided to go on the attack against Supreme Court Justice Sonia Sotomayor this week.

To understand why Sotomayor has suddenly become a target, it is helpful to talk about the way that this administration is changing how presidential policies are being handled in the courts.

One of the reasons Senate Majority Leader Mitch McConnell is so committed to stacking the courts with extremist conservative judges is that, as I pointed out last week, the Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.

What this often means is that lower courts issue injunctions against the implementation of the administration’s policies while the case works its way through the courts. Attorney General William Barr complained about that practice in his speech to the Federalist Society.

First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone.  Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government.  By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government…

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts.  No other President has been subjected to such sustained efforts to debilitate his policy agenda.

Of course, Barr didn’t mention that those major policies have been frozen by the lower courts because the Trump administration failed to make a coherent case in support of them, so the courts have temporarily halted their implementation. As an example, this is what Coral Davenport wrote about their efforts to roll back Obama’s fuel efficiency standards.

In January, administration staff members appointed by President Trump sent a draft of the scaled-back fuel economy standards to the White House, but six people familiar with the documents described them as “Swiss cheese,” sprinkled with glaring numerical and spelling errors (such as “Massachusettes”), with 111 sections marked “text forthcoming.”

The cost-benefit analysis showed that consumers would lose more money than they would gain. And, because the new auto pollution rule lacks the detailed technical analyses required by law, the regulations would be unlikely to withstand court challenges…

More basic issues holding up the regulations point to another problem: the skeleton crew of inexperienced political appointees who are heading the drafting process may not be up to a job that would usually be handled by career federal workers with decades of expertise.

The Trump administration’s response to these failures has been to go directly to the Supreme Court and ask them to expedite emergency relief from the injunctions of the lower courts.

Professor Steve Vladeck, a CNN contributor who has studied the issue of emergency requests, noted in a recent piece for the Harvard Law Review that Solicitor General Noel Francisco has been more aggressive in seeking to “short-circuit” the ordinary course of appellate litigation than his immediate predecessors.

In an interview, Vladeck noted that Francisco has not always prevailed, “but he has done so far more often than his predecessors.”

“This is now the 24th time that the Trump administration has asked the Supreme Court to put a lower court decision on hold in less than three years compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined,” Vladeck said.

That is precisely what sparked Justice Sotomayor’s critique against the conservative justices on the Supreme Court, who have consistently been willing to grant that relief to the Trump administration.

The justice wrote that granting emergency applications often upends “the normal appellate process” while “putting a thumb on the scale in favor of the party that won.” Targeting her conservative colleagues, she said “most troublingly, the Court’s recent behavior” has benefited “one litigant over all others.”…

“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases,” Sotomayor said. “It is hard to say what is more troubling,” she said, pointing to the case at hand, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.” She noted that in the case at hand, the lower court order that the Supreme Court lifted was narrow and only impacted one state.

That is what has placed Sotomayor’s name in the news. I seriously doubt, however, that Trump understands or cares about these legal maneuverings, which is why he couldn’t articulate his objections to Sotomayor during a news conference in India today.

The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.

In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration.  Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.

As I’ve been suggesting for a while now, the Supreme Court is scheduled to issue rulings in several explosive cases prior to the November election. One of them has to do with whether or not Trump will be required to release his tax returns. From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.

The justices are behind schedule in releasing opinions, and court watchers have questioned if the delay is caused in part by Chief Justice John Roberts’ required participation in the impeachment proceedings, or if the justices themselves are fractured over a number of cases. Although Sotomayor wrote alone, her opinion suggests unease behind the scenes.

All of this is probably just the opening salvo in what promises to be a very contentious season for the Supreme Court.

As Ohio Plans for Opioid Settlement, Treatment Should Come First

It’s interesting to see how Ohio is attempting to organize itself in anticipation of a large settlement with the opioid manufacturers and distributors. It’s a good thing to make these companies pay for the destruction they have caused—400,000 deaths so far this century, with Ohio the second hardest-hit state. At the peak in 2010, there were 102.4 opioid prescriptions written for every 100 Ohioans.

But the real point is to do something impactful with the money. The number one need is for treatment for those who are addicted or struggling in recovery. Naturally, there are countless municipalities that are gripped with this crisis and have myriad needs. There’s a law enforcement and criminal justice component, and there’s a need to have sensible policies for legitimate pain management. Education is critical, not only for doctors and pharmacists but for young students, educators, parents, patients, and politicians as well.

It’s not easy to find the right balance for allocating settlement money or to navigate the complicated politics involved.

Hundreds of municipalities in Ohio, along with the state’s governor and attorney general, are nearing an agreement on how to divide any money that might come from a major federal case against opioid manufacturers and distributors, an attempt to ensure fairness in the allocation of a potential settlement as recompense for the ravages of the nation’s opioid epidemic.

Cities and towns have until March 6 to sign onto the agreement, known as “One Ohio.” It would guarantee that the state presents a united front during negotiations, with municipalities directly receiving, in cash, 30 percent of any settlement funds. The state would receive 15 percent, and 55 percent would go toward a new nonprofit foundation that would support research into, and education about, opioids.

My concern with this proposal is that 55 percent of funds going to research and education seems far too high considering the overwhelming need for treatment. It’s extremely expensive to treat an opioid addict. Typical 28-day programs are usually insufficient and therefore inefficient. In any case, most people don’t have the means to afford them, especially when it turns out that the first try didn’t take.  What is needed is a lot of long-term and heavily subsidized care for some of the most unsympathetic people you will ever find. Opioid addiction strips people of their character and their dignity and puts enormous stress even on the patience of their loved ones. Complete recovery is possible but successful cases usually involve multiple relapses over many years.  If research can improve these results, then that’s worthwhile, but society pays a hefty price for every addict who isn’t in treatment. It increases crimes of theft exponentially, along with associated violence. Overdoses can be so common in some areas that they put stress on ambulance services, fire departments, police, and emergency rooms. And if we care about people, we ought to be committed to saving as many addicts as possible.

The expense explains why municipalities need to see a lot of the settlement money, but the state as a whole needs to develop a plan for providing the beds required for long-term treatment. That’s where most of the money should go. Maybe if fewer people become addicts in the first place, through better prescribing practices and more thorough educations about opioids, then the resources can be shifted more to research. But, for now, the problem is primarily that people are already addicted and are going to keep committing crimes and overdosing until they are either imprisoned or die. Many of these people became addicted because they followed the advice of a doctor, but even the recreational drug users deserve our compassion and willingness to help.

The opioid crisis is so deep, I don’t think the settlement money will come close to providing the resources needed for the nation to recover and that should be people’s greatest concern here. It’s great that Ohio is thinking ahead and trying to be smart, but they’ll probably discover that they don’t have what they need.

On Election Interference, We’re Flying Blind

Last week we learned that Trump went into a rage about a briefing given to House lawmakers on Russian interference in the 2020 election and proceeded to fire Joseph Maguire, his acting Director of National Intelligence.

The official, Shelby Pierson, said several times during the briefing that Russia had “developed a preference” for Trump, according to a U.S. official familiar with her comments…Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff (D-Calif.), the chairman of the House Intelligence Committee, people familiar with the matter said. Trump also believed that the information would be helpful to Democrats if it were released publicly, the people said.

The president replaced Maguire with Richard Gernell, a loyalist with no intelligence experience, but a long list of explosive right-wing statements.

Two days after the story broke about Trump’s rage over the intelligence briefing, there was an attempt to walk back what Pierson told members of the House.

The official, Shelby Pierson, told lawmakers on the House Intelligence Committee that Russia is interfering in the 2020 election with the goal of helping President Donald Trump get reelected…

“The intelligence doesn’t say that,” one senior national security official told CNN. “A more reasonable interpretation of the intelligence is not that they have a preference, it’s a step short of that. It’s more that they understand the President is someone they can work with, he’s a dealmaker.”…

Trump has been periodically briefed on Russian interference in the 2020 election, but was upset when he learned of Pierson’s characterization of the intelligence in part because intelligence officials had not characterized the interference as explicitly pro-Trump. One national security official said Russia’s only clear aim, as of now, is to sow discord in the United States.

It is important to note that the “national security official” used the exact same language that Attorney General Barr used when he mischaracterized the Mueller report by saying that the 2016 Russian efforts were designed to “sow discord among American voters.” He completely left out the fact that the report clearly stated that the interference was an effort to disparage Clinton and support Trump.

On Sunday, national security adviser Robert O’Brien denied that there was any intelligence suggesting that Putin is doing anything to try and influence the elections in favor of President Trump. But he also said that it makes sense that they would be trying to help Sanders.

Trump is doing the same thing to the intelligence community that he has done to the Department of Justice: turning it into nothing more than a political institution to support him and attack his enemies. Just as we can no longer believe in the independence of DOJ, we can no longer believe anything that comes from the people who are supposed to protect our national security. That is what happens when our federal government becomes infected with politicized liars.

At this point, we’re flying blind when it comes to foreign attempts to influence our elections. To twist the metaphor a bit, that means that we’re also sitting ducks—which is a great victory for Vladimir Putin.

Who Is Really Voting?

It’s a familiar lament: the Democratic electorates in the nation’s first presidential contests are quite different from those elsewhere in America. Far less known and much less discussed: how wildly un-representative those voting so far in Iowa, New Hampshire, and Nevada,  are when compared to those states’ typical Democratic electorates.

The caucus system itself is the most visible culprit. Just 30 percent of Iowa’s 600,000 registered Democrats participated in the February 3 caucus. Meanwhile, Democratic turnout in Nevada was closer to 15 percent. Former Senator Harry Reid is right: both caucuses need to go.

But the largely ignored, more insidious problem involves caucus “entrance” and election “exit” polls—or more precisely, the political journalists, pundits, and analysts who can’t separate their reliable data from that which is highly suspect, if not downright wrong.

The most widely cited of these surveys are conducted by the New Jersey-based Edison Research, which has conducted hundreds of such polls since 2004. Accept them at face value, and here’s what you’d be forced to conclude, based on official state voting files:

  • In Iowa, 18-44 year-old Democrats supposedly comprised 45 percent of all caucus goers, which means their turnout rate was significantly higher (34 percent) than either their 45-64-year-old parents (21 percent) or 65+ grandparents (25 percent). Edison’s sample of Iowa caucus goers shows a median age of 48. Iowa voter files put the median age of registered Democrats at about 56.
  • In Nevada, nearly two of three Democrats 65 and older, who’d voted in the November 2018 midterms, apparently stayed home, even with five days of early voting along with the February 22 caucus. These older voters’ apparent turnout rate was just 28 percent — compared to 70 percent in the 2018 midterms, and 43 percent in the low-profile June 2018 Nevada state primary.
  • In New Hampshire’s primary election, 18-44 year-olds supposedly composed 35 percent of the electorate, accounting for 105,000 of the 300,000 votes cast. The exit poll “found” that about 82,000 of them also voted in the 2016 presidential primary, though state voter files show only about 50,000.

Polling is an increasingly tough business. Cell phones, caller ID, and uncooperative voters—especially older ones—typically result in the over-sampling of younger voters.  But while pollsters now routinely weight their samples to compensate, too many unquestioning journalists simply run with  results that misrepresent the actual electorate in major ways.

This isn’t just an arcane discussion of statistical sampling methodology. A blizzard of upcoming presidential primaries—and more exit polls—is fast approaching, and history holds some harsh lessons for how relatively small miscalculations in this regard can have potentially enormous consequences.

Indeed, one remarkable New York Times story by Nate Cohn, published in June 2016, should be required reading. Cohn’s own skepticism about the accuracy of exit poll samples led him to delve into reams of U.S. Census data and voter files that weren’t published or accessible until long after the 2012 election (and its exit polls) had passed into history’s rear view mirror. His story was arguably the most prescient of the entire 2016 election cycle. Its headline told the entire story (almost): “There are More White Voters Than People Think. That’s Good News for Trump.”

Another revelation Cohn’s in-depth reporting made abundantly clear: “Voters Are (a Lot) Older, too.

Unlike their pre-election cousins—which identify and interview “likely voters” to predict future election results—exit pollsters interview actual voters. Exit poll data are especially valuable in determining how various candidates fared among key demographic groups, including those based on age, gender, education, race, ethnicity, and income. Edison’s 2016 exit poll, for example, revealed how a once Democratic-leaning voting bloc – non-college educated, white voters – dramatically lurched rightward in 2016, giving Trump a 66-29 percent margin.

The large sample sizes usually drawn for these polls—more than 1,600 voters in Edison’s Iowa survey, and more than 2,500 in both New Hampshire and Nevada—also ensure high reliability in determining key voter groups’ preferences for particular candidates. There’s little reason to question Buttigieg’s 24 percent support among Iowa’s college-educated caucus goers, or Sanders’s 51 percent support among Nevada’s Latino voters. But it’s an entirely different question as to whether the first group constituted 46 percent of Iowa’s caucus electorate, or that the latter comprised 18 percent of Nevada’s.

It’s difficult to credibly question, much less independently validate, the accuracy of exit polls’ samples for most demographic factors, at least in anything resembling real time. But the benefit of more time and more accurate methodology reveals their fallibility.

About six months after each general election, the U.S. Census Bureau publishes its biennial “Voting and Registration” report, based on a survey of voting habits among 100,000 Americans. The party affiliation and candidate preferences aren’t part of the mix, but key demographics are, including race/ethnicity, education, and income.

It was largely from this data—supplemented by official state voting files compiled by Catalist, a national list vendor—that Cohn derived his story’s most telling statistic. In 2012, non-college educated white voters, 45 and older, constituted closer to 29 percent of the voting electorate, not the 23 percent as suggested by that year’s exit poll. That wasn’t a trivial difference. It meant 10 million more of these voters probably cast ballots in 2012–and likely would again in 2016.

There’s only one key exit poll demographic that can be cross-checked against Census data and ground-truthed against official voting files for all 50 states: the age of voters. (Rightfully, voters aren’t asked about their race, income, religion or income-level.) For this piece, I’ve used data available directly from states or from L2, another major national list vendor.

Only a handful of states, Iowa among them, publishes age-cohort based registration and turnout data, something every state could and should to. Fortunately, there’s a wealth of accessible Census and voting file data that reveals America’s actual electorate to be far older than many people realize.

Here’s a few things we can learn simply from various Census Bureau tables:

  • Most of America’s potential voters were born before 1973 .The median age of the nation’s “citizens of voting age population”—CVAP in Census parlance—today is 48. Half are younger, and half older, including those not even registered to vote.
  • The American electorate is growing older, not getting younger. Census projections show the median age of eligible voters steadily rising, reaching 52 by age 2060.
  • Actual voters are older still, even in high-turnout presidential contests. The median age of 2016 voters was 51. That year’s Edison exit poll sample, incidentally, wrongly pegged voters’ median age at 47—as if the 100 million non-voters that year were older than their ballot-casting counterparts.
  • Actual voters are even older in midterms. Median voter age in the 2018 midterms—which set a record for midterm turnout, at 50 percent of eligible voters—was 53.

The Census Bureau doesn’t collect data for primary elections — arguably the “terra incognito” of election research, despite their enormous importance. Political insiders are keenly aware that for the 7,000 most prominent of the nation’s partisan offices (U.S. Senate, Congress, Governor, and state legislator) the vast majority of races are essentially over once the dominant party nominee is selected in these notoriously low-turnout contests.

But one of the most time-tested axioms in American politics is that the lower the turnout, the older the typical voter. Actual primary election data from all three states readily confirms this, while busting another common myth: that Democratic primary voters tend to be far younger than their Republican counterparts.

In Iowa’s June 2018 regular state primary, virtually the same number of Iowa Democrats cast ballots—180,000—as participated in the 2020 caucus. Age-related data on the Iowa secretary of state’s website for that election suggests a median age for Democratic voters of 62—nearly a generation older than the 48-year median for caucus goers. Meanwhile, Nevada’s June 2018 non-presidential primary election attracted substantially more Democratic voters (133,000) than the roughly 100,000 who participated in the February 22 caucus. Democratic ballot-casters in the 2018 primary election had a median age of 65—compared to 53 for supposed 2020 caucus-goers.

To be sure, presidential primary elections generally attract higher turnout among younger voters, but usually among older ones, too.

In 2016, Hillary Clinton and Bernie Sanders battled for the nomination well into June. Among the 31 U.S states that register voters by party, 12 held “stand-alone” presidential contests that year, while 12 “piggy backed” the presidential contest onto their regular state primary elections. (The other 7 states held caucuses).

Based on data from L2,  just 39 percent of current registered Democratic voters, with a median age of 60, cast ballots in these 24 contests. Democrats under 45 had a turnout rate of 18%, and accounted for just 18% of those primary election ballots. Democratic voters 65 and older had triple that turnout rate, and cast 38 percent of all ballots –a profoundly different (and much older) electorate than the one portrayed in 2020’s first three exit polls

While it won’t be the only important factor in 2020, voter age today seems more closely correlated with partisan leaning than at any time in modern political history. In 2018, the national Edison poll found 18-44-year-old voters—estimated then at a 35 percent share, but closer to 31 percent in state records—preferring Democratic House candidates by a net 19-point margin. Meanwhile, voters 45 and older showed just a one-point preference for Republicans—but cast almost 70% of all votes that year.

This November, it will be the exact mix of actual voters, especially in key states, that will matter most. That further underscores the importance of demanding that the nation’s major news organizations and their exit poll partners do a far better job in helping Americans understand who’s really voting now, not to mention, who most likely will be this fall.

Indeed, as we all brace for a 2020 election unlike any other in American history, a paraphrase of Donald Rumsfeld’s famous axiom on the eve of the Iraq war is worth reflecting on: “You go to war with the electorate you have, not the electorate you might wish you have.”