How Merrick Garland can still be appointed to the Supreme Court. (Maybe)

The Republican-controlled Senate refused to consider Merrick Garland to take the late Antonin Scalia’s place on the Supreme Court of the United States, gambling that a GOP successor could appoint a Justice more to their liking.  But the outgoing President can still gamble on appointing Garland during the brief – very  brief – recess between two sessions of Congress:

President Obama will have one last chance to force Judge Merrick Garland onto the U.S. Supreme Court on Tuesday — but it’s a legal gamble and one that has so many pitfalls that even those who say he could get away with it believe it isn’t worth the fight.

Mr. Obama’s moment will come just before noon, in the five minutes that the Senate gavels the 114th Congress out of session and the time the 115th Congress begins.

In those few moments the Senate will go into what’s known as an “intersession recess,” creating one golden moment when the president could test his recess-appointment powers by sending Judge Garland to the high court.

A smattering of activists has asked him to give it a try, but Mr. Obama has given no indication that he’s thinking about it. The White House didn’t respond to a request for comment for this story.


William G. Ross, a law professor at Samford University in Birmingham, Alabama, said Mr. Obama would have the power to elevate Judge Garland. But he said it would be “politically unwise and damaging to the prestige of the court.”

“It would exacerbate acute political tensions that have roiled the transition process and promise turbulence from the very start of the Trump administration, and it would contribute to the growing public perception that the court is unduly political,” Mr. Ross said.

President Teddy Roosevelt was perhaps the most “aggressive” practitioner of the intersession gambit, using what The New York Times in 1903 dubbed the “infinitesimal recess” — the split second between the end of one session and the beginning of another — to appoint 168 officers.

Justice Stephen G. Breyer, writing the controlling opinion in that 2014 case, acknowledged Roosevelt’s move, though he called it an anomaly.

He said there’s a general presumption that recesses need to be at least 10 days for a president to flex his recess powers, though he left open the chance for an emergency.

Some scholars say the 10-day rule in his opinion is “dicta,” or nonbinding verbiage that doesn’t constrain the courts. Activists suggest Judge Garland could test the boundaries of unusual circumstances that Justice Breyer left open.

The consensus, though, is that Mr. Obama would be making a mistake to test it that theory.

It seems to me that the appointment process is already broken, given the way the Senate refused to even consider Garland for the position while Obama still had almost a year left in office.

The question is whether Obama wants to ensure a smooth transition to a Trump Presidency, or whether he believes the looming Trump administration deserves to be stymied and obstructed at every turn.  I can’t help thinking that if the roles were reversed – if a Democrat-controlled Senate had blocked a Republican President from making an appointment to the Supreme Court – the outgoing President would be waiting for the moment to strike.

Kurt Eichenwald’s fake news

The pro-Trump blog American Mirror catches Newsweek reporter Kurt Eichenwald promoting a false story about Trump supporters on his twitter account:


It turns out that the Trumpsters were actually booing an anti-Trump protestor who started acting up while their hero was talking about John Glenn.

Eichenwald deleted the tweet and has posted a new one acknowledging his error.  Note the number of retweets and likes this one got, compared to his original, inaccurate tweet:


Now, there is absolutely no moral equivalence between Eichenwald and people who knowingly make up BS conspiracy theories online, or the obviously unhinged likes of Alex Jones.  At least he corrected his mistake.

But it does show just how easily “fake news” spreads online, because so much of it confirms the reader’s pre-existing biases.  Millions of Americans were convinced that Barack Obama was a secret gay Marxist Muslim, and they spread blatantly false stories and memes about it on Facebook and Twitter.

Likewise, Eichenwald wants to believe that Trump supporters are so universally repellent that they would boo an American icon who had just passed away, and without waiting for any kind of confirmation he spread the story to his thousands of followers.  His subsequent correction, needless to say, hasn’t spread nearly as far.

You know my feelings about the corrupt, incompetent, dishonest creature who will take office in January, 2017.  I hope and pray that the media does its job in holding him accountable.  But they have to be careful and honest about it – not for Trump’s sake, but for theirs.  And ours.

A fake news case study

Imagine if CNN was reporting on the latest ramblings of Iran’s Islamist leaders, and used the chyron “Iranian President Says United States is The Great Satan.”

Most of us, I assume, would realize that the network was reporting on what the Iranian President said, and wasn’t trying to open a debate on whether the United States is indeed the Great Satan.

However, the network is now facing a public-relations nightmare because of a similarly worded chyron, used during a segment about antisemitic comments made by “alt-right” leader Richard Spencer during a speech in Washington:


Twitter users began screaming their outrage, and other media outlets quickly followed:



Here’s the problem: CNN was not in fact debating whether Jews are human beings.  On the contrary, the complete segment makes it clear that the network was actually doing its job.

Host Jim Sciutto began the segment by describing Spencer’s comments as antisemitic, hateful garbage, and then interviewed two journalists about how President-elect Trump (a week later, I still can’t believe I have to write that) should respond.

Spencer was not actually interviewed during the segment, nor was any other “alt-right” figure who has enthusiastically welcomed Trump’s shocking election victory.  CNN was not debating Spencer’s proposition, but reporting on it.  That is their job.  In the age of Trump, that is what we need CNN and other media outlets to do.

Some people are attacking CNN for using the term “alt-right” instead of “white supremacist” or “neo-Nazi.”  That’s a fair criticism, though I’d counter that this CNN chyron actually illustrates how the term is just a new wrapping for the same old poison.  But the most serious accusation leveled at CNN – that they’re somehow “legitimizing” a discussion about whether Jews are human beings  – is flat-out wrong.

We’ve heard a lot about “fake news” lately, and how partisan lies spread on Facebook contributed to Trump’s election victory.  It spreads so quickly partly because people want their biases confirmed, and partly because, on some level, people want to be outraged.  We don’t want to believe the other side may have points worth considering or real concerns which should be addressed.  We want to believe the other side are monsters who must be defeated without mercy.

Richard Spencer and his brethren, as it happens, really are monsters who must be defeated without mercy.  But if media outlets are going to be savaged for accurately reporting on them, they may decide it’s just not worth the trouble.  And we will all lose.

Nobody knows anything

“Nobody knows anything…… Not one person in the entire motion picture field knows for a certainty what’s going to work. Every time out it’s a guess and, if you’re lucky, an educated one.” – William Goldman, Hollywood screenwriter


1964: Republican Presidential candidate Barry Goldwater, tarred as a terrifying, warmongering radical, suffers an overwhelming defeat at the hands of Lyndon Johnson. People say the GOP may never recover.

1968: Johnson – under fire from his own party because of the Vietnam War – declines to run again.  His likely Democratic successor Robert F. Kennedy is assassinated, and George Wallace’s independent run for President causes further chaos. Republican Richard Nixon – the same Nixon who lost in 1960 and couldn’t get elected Governor of California two years later – is elected President.

1972: Democrat George McGovern is overwhelmingly beaten by Nixon in the Presidential election, following a disastrous campaign in which McGovern goes through two running mates and much of his own party abandons him.  He doesn’t even carry his home state. All of this comes after Nixon, a devout anti-communist, shocks the world by re-opening relations with Mao’s China. People say the Democratic Party may never recover.

1976: Watergate brings down Nixon, and takes down many Congressional Republicans with him.  Successor Gerald Ford holds off a primary challenge from Ronald Reagan, and the media has a field day with his high-profile gaffes.  Americans send Democrat Jimmy Carter to the White House. People say the Republican Party may never recover.

1980: Reagan is elected President, and the GOP takes back the Senate, after Carter struggles with the Iranian revolution and hostage crisis, the Soviet invasion of Afghanistan, economic stagnation and Ted Kennedy’s primary challenge. People say the Democratic Party, tainted with the malaise of the seventies, may never recover.

1982: The Democrats make big gains in the midterm elections, and the Reagan Administration struggles with a gruelling recession and increasing international tensions.  Half the world is convinced “Raygun” might start a nuclear war at any minute.  People say Reagan may never recover.

1984: Reagan wins re-election in a 49-state landslide, establishes a productive working relationship with Soviet premier Gorbachev, and the Cold War begins to thaw.  People say the Democratic Party may never recover.  Two years later, the Democrats win back complete control of Congress, and the Iran-Contra scandal damages Reagan’s Presidency – but not quite enough to keep his Vice-President, George Bush, from succeeding him in 1988.

And then a year later, the freaking Berlin Wall comes down.

1991: after triumphing in the first Gulf War and deftly handling the collapse of Communism – including the literal dissolution of the mighty Soviet Union – President Bush attains previously unimaginable levels of popularity.  Prominent Democrats decline to seek their party’s Presidential nomination, fearing another blowout.  People say the Democratic Party may never recover.

1992: After Bush is hit with a recession, a primary challenge from Pat Buchanan and Ross Perot’s third-party bid for the White House, Democrat Bill Clinton – the Governor of Arkansas – wins the Presidency.  People say the old and tired Republican Party may never recover.  Two years later the GOP takes over Congress in an electoral earthquake from which people say Clinton may never recover.  Two years after that, Clinton is re-elected in a landslide.

2001: After the 9/11 attacks, Americans rally around Republican President George W. Bush, whose popularity soars.  The GOP takes control of Congress in the 2002 mid-terms, the United States invades Iraq and takes down longtime foe Saddam Hussein, and Bush is re-elected in 2004.  People say the demoralised Democratic Party may never recover.  Two years later, after Iraq succumbs to sectarian violence and Hurricane Katrina devastates New Orleans, Democrats control Congress again.

2008: something once thought unthinkable happens – a little-known but exceptionally gifted and charismatic African-American Democrat named Barack Hussain Obama beats out the heavily favored Hillary Clinton to win his party’s nomination, and defeats respected GOP Senator John McCain in the general election.  The Republican Party is tied to a brutal recession and an unpopular war in Iraq, and McCain’s polarizing running-mate Sarah Palin – loved by the party base, a laughingstock to many more – creates further turmoil.  People say the Republican Party may never recover.

2010: the GOP storms back to life, sweeping both Houses of Congress and openly proclaiming their intent to make Obama a one-term President.  People say Obama may never recover.  Then 9/11 mastermind Obama bin Laden is found and killed on his watch, Obama is re-elected in 2012, and people say demographic trends mean the Republican Party may never recover.

2016: you know what just happened, and people are saying the Democratic Party – and the United States itself – may never recover.

2018, 2020 and beyond: that’s up to you, Americans.

In politics, just like the movie business, nobody knows anything.

So what just happened, and what do we do now?

(originally posted to my Facebook page)


Did Trump beat Clinton because of racism and sexism? In many cases, undoubtedly so. For those of us inclined to think Americans are mostly good people, it’s depressing to see how many backed Trump’s blatantly xenophobic campaign.

But the overall picture is more complicated, and I think left-wingers will make a big mistake in simply writing off 48-49% of their fellow Americans as irredeemable bigots.

South Carolina went for Trump. Not surprising for a southern state, right? But they also reelected an African-American Senator (Tim Scott) and are governed by an Indian-American female Governor (Nikki Haley). They’re both Republicans – and presumably many of that state’s Trump supporters voted for them.

(Update: it also looks like the people of North Carolina voted for Trump but also ousted Governor Pat McCrory, of bathroom-bill infamy.)

Trump won the election because of his strong showing in the “rust belt” states – Pennsylvania, Ohio, Michigan, Wisconsin. The traditional manufacturing areas that have been hit hard by gloablization. I am unabashedly pro-market and pro-free-trade, which is one of many reasons a Trump victory horrifies me, but even I can’t deny that some parts of America have lost out. Trump promised to restore their former glory.

The thing is, these states all went for Obama in 2008 and 2012. And many blue-collar workers who backed him then went on to back Trump. Did they somehow become more racist since then, or was economic anxiety (now a clichéd, heavily mocked phrase) the reason?

It’s easy to forget in the black-and-while world of social media, but most things have more than one cause. The left says bigotry got Trump elected, Trump voters say it was the economy, and #NeverTrump conservatives like me say Hillary Clinton’s deficiencies as a candidate (notwithstanding her gender) caused it. The truth is undoubetdly a blend of all these factors, and more.

I want Trump to be a one-term President. I want the Democrats to take back Congress in 2018. But if we’re going to dismiss and insult all of his voters, Trump could be around for two terms.

At least.

The day after

I said he wouldn’t actually run for President. I was wrong.

I said he had no chance of getting the nomination. I was wrong.

I said there’s no way he’d be on the ballot for November. I was wrong.

I said there’s no way he can possibly be elected President of the United States. I was wrong.

I think he will he a catastrophically bad President.

I hope and pray I’m wrong.

Don’t panic. She’s got this.

Not long ago, after the Access Hollywood tape came out, I pondered the possibility of Hillary Clinton winning every single state in Tuesday’s presidential election.

Yeah, that’s not gonna happen.

But even in this week of closing polls, FBI anti-Clinton leaks and Republican voters supposedly “coming home” to their party’s candidate, I still think Hillary Clinton is going to win the election – and it won’t even be close. In fact, by 11PM Eastern time on Tuesday, I think we’ll be wondering what we were so worried about. 

Behold my map:

Click the map to create your own at

The reason? Turnout. Even if Trump is even in the polls, that doesn’t mean anything if his supporters don’t get out and vote.

Donald Trump is a genius at using the mass media to get his message out, but compared to Clinton, his ground operation is sorely lacking.  The Democrats are spending more money, and using many more people, to make sure that their supporters make it to the polls.

Plus, Trump’s conspiracist message – that the system is rigged and the election itself might be fixed – can work against him.  If you’re a Trump supporter and you know that the fix is in, why bother taking the time to vote in the first place?

Finally, Hillary Clinton is acting like a candidate playing for the win, not just holding her gains. She is spending much of this weekend in Ohio, a state where Trump has consistently led in the polls. Team Hillary is still trying to expand its map, not just fight over battleground states like Florida.

Never mind the must-win purple states like where Trump has to run the table: if he loses Ohio he is finished.

When the dust settles I’m predicting a decisive win for Clinton, including the close but traditionally Republican-supporting states of Arizona and Georgia. Trump is ahead in these states, but not enough to overcome the Democrats’ ground advantage.

One last thought: if you really, legitimately believe Trump would be better for the country, by all means, vote for him. I won’t hold that against you.

But if you know Trump is dangerously unqualified but support him anyway, out of pure partisan spite…that will be neither forgotten nor forgiven.