‘You can’t attack a regular voter’: Trump faces a retail-campaigning gap

The president favors settings where he can control the message. The final stretch of the campaign is showing Trump’s shortcomings in other settings.
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Is Apple Down? App Store, Apple Music and More Reported Problems
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Lindsey Graham hints at vote before Election Day
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“It affects virtually nobody”: Trump erases coronavirus victims as US death toll hits 200,000
Trump speaks in Ohio on Monday. | Matthew Hatcher/Getty Images Trump’s Covid-19 rhetoric hit new heights of irresponsibility in Ohio. Instead of taking a moment to grieve the nearly 200,000 Americans who were confirmed to have died from Covid-19 as of his rally Monday evening in Swanton, Ohio, President Donald Trump erased them. “It affects virtually nobody,” Trump said of the coronavirus. “It’s an amazing thing.” By Tuesday morning, the disease had officially had killed 200,000 people in the US — a number more than the Revolutionary War, the War of 1812, the Mexican-American War, the Spanish-American War, World War I, the Korean War, the Vietnam War, the Gulf War, the Afghanistan War, and the Iraq War combined — and “affected” even more. The president was trying to highlight how deaths from the virus are concentrated among older people and those with preexisting conditions — never mind that more than half of the US population falls into one or both of those categories — but he made his point in a remarkably callous, revealing way. Here’s the full quote, in context, followed by the video. It affects elderly people. Elderly people with heart problems and other problems. If they have other problems, that’s what it really affects. That’s it. You know, in some states, thousands of people, nobody young [dies]. Below the age of 18, like, nobody. They have a strong immune system, who knows. You look — take your hat off to the young, because they have a hell of an immune system. But it affects virtually nobody. It’s an amazing thing. By the way, open your schools, everybody. Open your schools. "It affects virtually nobody," Trump says of the coronavirus, which has now killed 200,000 Americans and counting— Aaron Rupar (@atrupar) September 22, 2020 First off, it’s not the case that young people have no risk of bad outcomes if they catch Covid. According to data from the Centers for Disease Control and Prevention, 107 Americans age 18 or younger have died from the virus. That is a fraction of the US’s total deaths, but, to state the obvious, death isn’t the only way someone can be negatively affected by Covid-19. A CDC study published last month found that there were 576 confirmed cases of children being hospitalized with Covid-19 between March 1 and July 25, with the hospitalization rate increasing over the summer. The number of child Covid-19 cases doubled between July and August, rising to 406,109, and the situation is likely to get worse before it gets better because of school reopenings. While there’s a lot that is still unknown about the disease’s impact on children, and most infections in children under the age of 18 are “asymptomatic or mild,” children can be “at risk for severe Covid-19,” per the CDC. The Wall Street Journal reported recently that “some are reporting symptoms that persist for weeks, or the development of post-viral syndromes. Symptoms reported include fever, cough, headaches, shortness of breath and gastrointestinal problems.” In short, Covid-19 is nothing to be cavalier about, regardless of age, and it’s irresponsible for the president to suggest otherwise — especially the day before Americans commemorated the grim milestone of 200,000 coronavirus deaths, Trump knows better but is spreading dangerous misinformation anyway Trump’s comments are appalling but not surprising. Constructing a coronavirus alternate reality is a centerpiece of his flagging reelection campaign. Instead of grappling with the fact that the US hasn’t had a single day below 30,000 new confirmed coronavirus cases in months, Trump is back to having multiple political rallies each week featuring packed crowds, very few masks, and no social distancing. While many of them are outdoors (public health experts say improved air ventilation is a key aspect of decreasing risk), not all are. To the extent that Trump talks about ongoing pandemic at these rallies, it’s to reassure people that the worst of it is in the past and there’s no need for any further closures of schools or businesses — or really any public health measures whatsoever — because we know more about the virus than we did months ago. "We're rounding the turn on the pandemic," Trump says, falsely— Aaron Rupar (@atrupar) September 3, 2020 But it’s worth noting that Trump doesn’t seem to be buying what he’s selling his supporters. Asked if he’s concerned about catching the coronavirus at one of his rallies following a speech in Nevada earlier this month, Trump said he’s not, because “I’m on a stage, it’s very far away, so I’m not at all concerned.” Trump has also said things publicly that directly contradict the “it affects virtually nobody” talking point. During a March 19 interview with Bob Woodward that the Washington Post recently published audio of, Trump said, “Now, it’s turning out, it’s not just old people, Bob. Just today and yesterday, some startling facts came out. It’s not just older. It’s plenty of young people.” That was the same interview where Trump infamously told Woodward that he “wanted to always play it down” because “I don’t want to create a panic.” There’s a big difference, however between trying to keep people calm and misleading them. Trump’s comments in Swanton serve as perhaps the starkest illustration yet that Trump is willing to endanger his supporters in hopes of convincing them his failed coronavirus response is actually a success story, and that anybody who tells you otherwise is part of a political conspiracy aimed at taking him down.
NHRA drag racing series files lawsuit against Coca-Cola for terminating sponsorship
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Arizona Dem could vote on Supreme Court justice if Republicans drag feet
Arizona Democrat Mark Kelly could vote for the next Supreme Court justice if Republicans move slower than expected to confirm a nominee to replace Ruth Bader Ginsburg. Kelly, a retired astronaut married to former congresswoman Gabby Giffords, is outpolling appointed Republican Sen. Martha McSally in a special election to fill the late Sen. John McCain’s...
Can Democrats Stop the Nomination?
Anyone confidently predicting one way or another whether Senate Majority Leader Mitch McConnell can seat a new justice on the Supreme Court is blustering. Here is the only thing that’s certain: The coming fight will not be resolved by principle—no matter how senators talk or what principles they profess. It will be resolved by legislative gamesmanship, voting strength, and power politics.Four major questions will determine the outcome of this struggle, set off by the death of Justice Ruth Bader Ginsburg only six weeks before Americans finish voting for both president and control of the Senate, and only four months before a new Congress gets sworn in.The first is whether McConnell actually has the votes. Right now, there are 53 Republicans in the Senate, and recent statements from senators suggest that enough of them support holding a vote on the nominee put forward by President Trump this year for the process to move forward.[David Frum: Four reasons to doubt Mitch McConnell’s power]Only two GOP senators are opposed to forcing someone through before the next president takes office. Susan Collins, facing a tough electoral environment in Maine following her vote to confirm Brett Kavanaugh, announced Saturday that “the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.” Senator Lisa Murkowski of Alaska, who voted against Kavanaugh, coincidentally declared hours before Ginsburg’s death was announced, “I would not vote to confirm a Supreme Court nominee.” She reiterated that position following Ginsburg’s death: “For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. Sadly, what was then a hypothetical is now our reality, but my position has not changed."Other Republican senators, however, are backing McConnell’s aggressive stance. These include Martha McSally of Arizona, Steve Daines of Montana, Thom Tillis of North Carolina, and Cory Gardner of Colorado. — The biggest blow for Democrats came this morning from Mitt Romney of Utah, who declared earlier that “I intend to follow the Constitution and precedent in considering the president’s nominee. If the nominee reaches the Senate floor, I intend to vote based on their qualifications.”So while McConnell entered the game with a thin margin, he’s been successful at winning with thin margins before, including during last winter’s impeachment trial and the Kavanaugh confirmation—and the numbers have clearly broken in his favor. To create a majority, Minority Leader Chuck Schumer would need to make sure Collins and Murkowski are solid, and he would need two more Republicans to flip positions. That’s a tall order.But the math may get worse for McConnell and better for Schumer after the votes are counted in November—if the Democrats can stall things that long. McSally is running considerably behind the Democratic challenger Mark Kelly, and because Arizona’s race is a a special election to fill the seat of the late John McCain, he would take office promptly were he to prevail—not when the new Congress convenes in January 2021. Although finalizing that election’s results and seating Kelly could take time, his would be a potential additional vote against a nominee.More generally, if Democrats were to pick up Senate seats—as seems likely—or even take control of the chamber, particularly if Joe Biden were also to defeat Trump, the optics of confirming a nominee during a lame-duck session of Congress would get particularly ugly for McConnell. He would, after all, be trying to ram through a defeated president’s nominee with a razor-thin Senate majority that might be about to diminish further, or disappear entirely. And he would be doing so by way of allowing that defeated president and the defeated party in the Senate to seize control of the Supreme Court in the face of apparent voter preference for the other side.This possible erosion of McConnell’s position raises the second key question, which is one of timing: Does McConnell push for a confirmation vote before the election, or does he wait until a lame-duck session?This question is also tricky. The fact that McConnell’s position will likely be weaker with respect to pure numbers, at least somewhat, when the votes are counted creates a temptation to act quickly and get the confirmation done before the election.But that will be hard. The election is only 42 days away, and, while plans could change to accommodate the process, Congress is not scheduled to be in session for more than 11 of them.Confirming a Supreme Court justice does take time. It requires hearings. There has to be floor debate. And Democrats will be doing everything they can to stall and slow things down.Remember also that all of those vulnerable incumbents whose seats McConnell wants to preserve need to go home and fight for their seats at precisely the time a quick vote will require them to be in Washington. Even if they support confirming the president’s nominee while reversing the positions that many of them took four years ago, when McConnell blocked President Barack Obama’s nomination of Merrick Garland, remaining in Washington keeps them off the campaign trail.The result is a complicated little puzzle for McConnell: His position is stronger if he acts quickly, but he may not have the time to do so, and Democrats will certainly attempt to slow things down and force the matter into the lame duck, where their hand may well be stronger.This raises the third key question: How much delaying power do Democrats have, and how much of it will they be willing to use?The filibuster for Supreme Court nominations is gone, so the Democrats cannot stop the nomination without finding four Republican senators willing to vote against the nominee, but delaying tactics are available to them. Some of these tactics have been only theoretical in the past, because they involve disabling the Senate institutionally, so in the normal course of business, the costs of using them are just too high.That could be the case this time around too, especially if the nomination slides to the lame-duck session. There could be competing legislative items that Democrats are not willing to cast aside by grinding the institution to a halt. Most significant, current plans to fund federal government operations involve a short-term spending measure that would run through December 11. If Democrats attempted to halt all Senate action over a Supreme Court pick, a bill keeping the government open would also be a likely victim. Additional legislation to address the COVID-19 crisis has languished as well, meaning that it, too, might well remain unfinished after the election.[Read: How the pandemic defeated America]Speaker of the House Nancy Pelosi has indicated that, at this point, she is not interested in jeopardizing government funding in favor of Supreme Court obstruction. The primary obstacle to legislative progress on addressing the coronavirus, meanwhile, has been divisions within the GOP over whether action is needed, so moving forward with such a bill may be difficult regardless.But even in the presence of these high-value agenda items, Democrats may face demands from their voters to use every tool at their disposal to push back against McConnell. What’s more, knowing that they would be immediately disabling the Senate for only a discrete period of time, until the new Congress comes in, their calculation may be different than it has been in the past.What are the available tactics? The Senate operates on the presumption that a quorum—51 members—is present, and suggesting the absence of a quorum triggers a roll-call vote to see who is present. Serial quorum calls can take up a lot of time.Much of the Senate operates, moreover, by what’s called unanimous consent— the absence of any objection to doing things in the manner proposed. If Democrats simply make a practice of refusing unanimous consent on even routine matters, thus forcing debate and votes on all sorts of things that normally proceed without objection, that could further make processing the nomination resemble pouring cold molasses.There are also options for delaying committee action. The Judiciary Committee’s rules, for example, require at least two members of the minority to be present for the committee to transact business, and they allow any member to request that a nomination be held over for action for a week. In addition, if the Judiciary Committee were to fail to report out a nomination, senators could discharge the panel of its responsibility, but a key motion required as part of that process can be filibustered.A number of commentators have even floated the idea of the House impeaching a Trump official, in an effort to force the Senate to receive articles of impeachment and conduct a trial.A sufficiently determined Senate majority could, however, likely take its own retaliatory steps to get around some of these forms of Democratic obstruction. In general, if a simple majority of senators is willing to vote in favor of reinterpreting the rules, stopping it is difficult. There are other possible GOP responses, too. In August 2019, for example, Judiciary Committee Chairman Lindsey Graham suspended several of the panel’s rules to take action on an immigration bill. Generally, if Democrats attempt to prevent a nomination from being reported by the Judiciary Committee, Republicans can alter Senate precedents and protect from a filibuster the necessary motion to bring it to the floor. And while the current Senate rules governing impeachment suggest that the Senate would have to act if the House sent over articles, it could likely dispense with them by a simple majority vote—if enough Republicans were willing to do so. The mechanics of the Senate’s existing rules also make the use of tactics such as repeated quorum calls more difficult once cloture on a nomination has been invoked—which, again, requires only 51 votes.[Read: What Ruth Bader Ginsburg’s death means for America]The final major question is whether Democrats can offer any credible policy deterrence for Republicans going forward with a confirmation. A number of Democrats have stated that if Republicans force through a nominee before the inauguration, they will feel compelled to respond, should they take the chamber, by increasing the number of seats on the Supreme Court. This is an idle threat when uttered by individual senators.It ceases to be an idle threat the moment 51 senators, sitting or incoming, have their names behind it and make clear that they are prepared to move on the matter immediately when the new Congress convenes. To do this, admittedly, they would likely have to be prepared to blow up the legislative filibuster—something some Democratic senators and many Democratic activists want to do anyway.The idea of threatening a policy-based retaliation to create a deterrent will become plausible only if Democrats prevail electorally and can then put on a united front in the lame-duck period. To be effective, the strategy would need credibly to promise something sufficiently undesirable to Republicans that McConnell backs down—or, failing that, that a few additional senators jump ship, costing him the majority he needs to get past the finish line. Given that calls from some Democrats to abolish the filibuster for major structural reforms were rising before Ginsburg’s death, and have escalated since, Republicans are likely to be skeptical of any Democratic commitment to refrain from doing so, even if Republicans stay their hand.These variables will, in all likelihood, not operate independently of one another. McConnell is more likely to push for a quick confirmation vote if he’s confident of Republican votes. Democrats will be more assertive about using delaying tactics aggressively if Republican votes are soft or perceived to be uncertain—and if Democrats are confident of major electoral gains that will strengthen their hand.Ginsburg’s seat will not be filled necessarily by the party that makes the better argument. Control of her seat, rather, will go to the party that best deploys the tools at its disposal in the fluid environment of an election, a ticking clock, and a possible shift of power.
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President Donald Trump on Monday claimed that the new coronavirus "affects virtually nobody" as nearly 200,000 Americans had, at that time, already died from the pandemic.
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Why So Many Americans Grew Numb to COVID-19 Deaths
Sometime this week, alone on a hospital bed, an American died. The coronavirus had invaded her lungs, soaking them in fluid and blocking the exchange of oxygen and carbon dioxide that makes up our every breath. Her immune system’s struggle to fight back might have sparked an overreaction called a cytokine storm, which shreds even healthy tissue. The doctors tried everything, but they couldn’t save her, and she became the 200,000th American taken by COVID-19—at least according to official counts.In reality, the COVID-19 death toll probably passed 200,000 some time ago. And yet “the photos of body bags have not had the same effect in the pandemic” as after other mass-casualty events such as Hurricane Katrina, says Lori Peek, a sociologist at the University of Colorado Boulder who studies disasters. “Is our national empathy—our care and love and concern for one another—at such a low level that we are not truly feeling, in our bones, in our hearts, and in our souls, the magnitude of the loss?”It’s hard for anyone to comprehend the sheer horror of mass death. As I wrote in April, “compassion fade” sets in when victims are no longer individuals but statistics, and few Americans have witnessed something of this scale before. But there’s an additional explanation for this empathy deficit: Part of the reason this majority-white, majority-non-elderly country has been so blasé about COVID-19 deaths is that mostly Black people and old people are dying. Eight out of 10 American COVID-19 deaths have been among people older than 65; the rest of the dead are disproportionately Black. White people’s brains psychologically sort minorities as “out-groups” that stir less empathy. Segregated neighborhoods have also helped insulate white Americans from the horror Black Americans face, because the ambulance sirens and the packed hospital wards are typically far from their own zip codes. “We literally don’t see those deaths in the same way we might if we didn’t experience segregation,” says Nour Kteily, a management professor at Northwestern University who studies hierarchies.Ageism reduces human beings’ capacity for caring too. Globally, people don’t value elderly lives as much as they do young people’s, research shows. When it comes to deciding who lives or dies, there’s a disregard for the elderly, even among the elderly.Discrimination against the old is perplexing, because age will ultimately catch us all. Though no white person will ever be a Black person, every person, if all goes well, will get old. But several studies that forced people to imagine life-and-death decisions hint at how little society values the elderly.One major insight into this phenomenon comes from a 2018 study called the “Moral Machine experiment,” which invites participants to determine how to program a self-driving car. People who play the Moral Machine game are shown two images, each of which depicts an out-of-control car driving into a different group of people (or, in some of the images, a cat or a dog.) For example, the game might tell the player that if you let the car plow ahead, the car will kill three little girls and two adult men. But if you swerve to the right, the car will instead kill two elderly men, two elderly women, and another, non-elderly woman. Would you swerve, or stay straight? Who would you kill?After it launched in 2016, the Moral Machine experiment went viral a few times, which meant that millions of people in 233 countries and territories ultimately played it. Through the game, its authors were able to glean country-specific preferences for sparing or sacrificing different types of lives.The strongest signals that came out of all those sessions were that people preferred to spare a greater number of lives, to spare human lives, and yes—to spare young lives. The most likely lives to be saved in these simulated car accidents were those of babies, children, pregnant women, and male and female doctors. Male or female homeless people and overweight men, meanwhile, were likely to be sacrificed.Overall, older men and women were some of the least likely to be spared, ranking just above dogs, human criminals, and cats—disturbingly, in that order. (“People like dogs,” says Azim Shariff, a social psychologist at the University of British Columbia and one of the authors of the study. This could explain why the large number of coronavirus cases in prisons has also provoked a collective yawn from policy makers.)Interestingly, people of all ages and backgrounds generally agreed on who to kill. Older players were less likely to sacrifice the older pedestrians than younger players were, but they still did it. As Texas Lieutenant Governor Dan Patrick, himself a septuagenarian, has said, “As a senior citizen, are you willing to take a chance on your survival in exchange for keeping the America that America loves for its children and grandchildren? And if that is the exchange, I’m all in.”“All things being equal, people were willing to place a priority on sparing a younger person to sacrifice an older person,” Shariff says.This preference for sacrificing the old to save the young was found in every country. The only places where people showed a weaker preference for killing the old—though they still preferred it to sacrificing the young—were in East Asian countries, such as Japan and Taiwan, and in majority-Muslim countries, such as Pakistan and Saudi Arabia.The two countries where people most preferred to sacrifice the elderly, meanwhile, were France and Italy. At the peak of the pandemic, this question became real for Italians, and doctors in the most affected regions of Italy used 80, or even 65, as their “cutoff age” for access to scarce ventilators.Shariff and his team didn’t ask people why they preferred to kill the old, but judging by anecdotal reports, such as YouTubers playing the game for their viewers, people seemed to rationalize that the elderly had fewer years left to live.Indeed, doctors follow a similar logic. In a May paper in the New England Journal of Medicine, a group of doctors from different countries suggested that hospitals consider prioritizing younger patients if they are forced to ration ventilators. “Maximizing benefits requires consideration of prognosis—how long the patient is likely to live if treated—which may mean giving priority to younger patients and those with fewer coexisting conditions,” they wrote. Perhaps, on a global scale, we’ve internalized the idea that the young matter more than the old.The Moral Machine is not without its criticisms. Some psychologists say that the trolley problem, a similar and more widely known moral dilemma, is too silly and unrealistic to say anything about our true ethics. In a response to the Moral Machine experiment, another group of researchers conducted a comparable study and found that people actually prefer to treat everyone equally, if given the option to do so. In other words, people didn’t want to kill the elderly; they just opted to do so over killing young people, when pressed. (In that experiment, though, people still would kill the criminals.) Shariff says these findings simply show that people don’t like dilemmas. Given the option, anyone would rather say “treat everybody equally,” just so they don’t have to decide.Bolstering that view, in another recent paper, which has not yet been peer-reviewed, people preferred giving a younger hypothetical COVID-19 patient an in-demand ventilator rather than an older one. They did this even when they were told to imagine themselves as potentially being the older patient who would therefore be sacrificed. The participants were hidden behind a so-called veil of ignorance—told they had a “50 percent chance of being a 65-year-old who gets to live another 15 years, and a 50 percent chance of dying at age 25.” That prompt made the participants favor the young patient even more. When told to look at the situation objectively, saving young lives seemed even better.To Shariff, his study and others support what many already suspect to be true—that certain deaths bother us more than others do. “If it was attractive, 15-year-old, blond, soccer-playing children who are dying, then we would have more of a concern,” he says.At 74 years old, President Donald Trump falls smack in the COVID-19-death demographic. Yet he has also minimized the threat of the virus repeatedly. This makes sense: The elderly themselves don’t care much about protecting the elderly because they typically don’t think of themselves as such, says Susan Fiske, a Princeton psychologist who has studied ageism and other prejudices. The “old” are always just a little bit older than ourselves.For the rest of us, there might be a more sinister impulse behind ageism. Most of us know someone who is elderly, be they an aging parent or grandparent, and those ties make us subconsciously crave control over how the elderly behave, Fiske says.Younger people subconsciously want to be sure that the elderly don’t hog a disproportionate amount of time and resources. “Older people are expected to step aside,” she told me.The only American cultures that have consistently positive views of the elderly are African Americans and Native Americans, Fiske has found in surveys. She’s not sure why, but speculates that the adversity these communities have faced has made them prize older people’s wisdom and experience.Likewise, some experts have pushed back against the assumption that young COVID-19 patients are more worth saving than the old. Fifty-year-olds, for example, might be more useful for the economy because they have skills and experience that 20-year-olds don’t have.Utilitarians would argue that policy makers should simply maximize the total number of years people have left to live; the young certainly have more. But the fact that mostly older people are dying has helped justify something that isn’t justifiable. It’s helped public officials look away when they should be taking action.
Why Is Kodak Black Suing the Federal Bureau of Prisons?
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Tel Aviv set to become first city with electric roads that charge public transportation
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This will be the world's first city with electric roads that charge public transportation
The city of Tel Aviv is working on creating wireless electric roads to charge and power public transportation in the city.
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Court-packing, Democrats’ nuclear option for the Supreme Court, explained
The justices of the Supreme Court for the 1937-38 term. Sitting, from left to right, Justices Sutherland and McReynolds, Chief Justice Hughes, Justices Brandeis and Butler. Standing, left to right, Justices Cardozo, Stone, Roberts, and Black. | Bettmann/Getty Images Why an FDR plan from the 1930s is suddenly popular again. When news broke on Friday night that Ruth Bader Ginsburg, the longest-serving liberal justice on the Supreme Court, had died, it became clear almost immediately that President Trump would try to replace her with a conservative justice before the presidential election on November 3. It also became clear that Mitch McConnell, the Senate Majority Leader who famously blocked President Obama’s Supreme Court nominee in a presidential election year in the name of letting the people choose, would work with Trump to push through the nominee ASAP. The brazenness of the move, along with the prospect of a Supreme Court with six conservative justices, almost immediately sparked a liberal response in the form of calls for court-packing. “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Sen. Ed Markey (D-MA) tweeted. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.” House Judiciary Committee chair Jerry Nadler (D-NY) sounded a similar threat if the confirmation happens during a “lame duck” period, tweeting, “If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court.” Senate Minority Leader Chuck Schumer (D-NY) has already signaled his openness to court-packing if he becomes majority leader, telling his caucus in a conference call, “Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table.” On the lobbying/advocacy side, the organization Demand Justice, run by veteran Democratic strategist Brian Fallon, is pushing hard for additional Supreme Court seats and term limits. (For his part, Democratic presidential nominee Joe Biden has stuck to his institutionalist instincts, holding off on endorsing such drastic moves.) The calls for court-packing, though louder than ever, are not entirely new. Almost as soon as Anthony Kennedy announced his retirement from the Supreme Court this in June 2018 calls started pouring in from liberals and leftists for court-packing. There is nothing in the Constitution mandating that the Supreme Court have nine members, and a simple act of Congress could increase that number to 11, or 15, or even more. That effectively creates a way for a political party in control of the House, Senate, and presidency to add a large number of ideologically sympathetic justices to the Court, all at once. To many leftists and left-liberals, such drastic action is needed if any progressive legislation in the future is to survive — and if precedents on abortion rights and LGBT equality are to avoid reversal. Back in 2018, the Supreme Court effectively gutted public sector unions under the guise of the First Amendment. In 2012, there were four votes on the Supreme Court (including Anthony Kennedy) for striking down the Affordable Care Act in full. And there’s an emerging movement of judicial conservatives, championed prominently by Donald Trump’s appellate appointee Don Willett, which wants the courts to become much more aggressive in blocking economic regulation. If that kind of judicial conservatism comes to dominate the Supreme Court, then even winning back the White House and Congress won’t be enough for programs like a $15 minimum wage, or Medicare-for-all, or a free college plan, to be passed and secured. The Supreme Court would stand ready to rule them unconstitutional nearly as soon as they are passed. In such a scenario, court-packing starts to look like a reasonable defensive measure. The prospect of a Court slapping down progressive economic measures brings to mind the last time court-packing was seriously considered. In 1937, Franklin Roosevelt was facing off with a hostile Supreme Court that routinely ruled aspects of the New Deal unconstitutional on the same grounds. During that era, the Court interpreted the due process clauses of the Fifth and 14th Amendments as sharply limiting economic regulation and ruling out things like federal bans on child labor, minimum wage laws, and legislation limiting work weeks to 60 (!) hours. Roosevelt’s plan to increase the court’s size — which would’ve allowed him as many as six new justices, for a 9-6 majority for the New Deal on a 15-member court — ultimately failed in the Senate, but not before successfully pressuring Justice Owen Roberts to switch his alignment from the Court’s conservatives to the liberals and rule for the constitutionality of minimum wage laws and the National Labor Relations Act. If calls for court-packing grow loud enough, you could see something similar happen on the current court, if some of the Republican-appointed justices like John Roberts or Brett Kavanaugh start moderating their decisions to prevent the radical disruption of the Court by Democrats who fear being locked out of policy influence for a generation. Alternately, a successful court-packing effort from Democrats could spur retaliation in turn from Republicans, and this process itself could undermine the Court’s authority. In some ways this might be desirable, and take decisions on important policy matters away from the court and in the hands of democratically elected legislatures. But it could also undermine faith in the rule of law itself, and increase the threat of democratic backsliding. The case for court-packing One of the most extensive arguments for court-packing comes from David Faris, a political scientist at Roosevelt University, whose book It’s Time To Fight Dirty argues for court-packing as part of a larger set of strategies to amplify Democrats’ political power, including statehood for DC and Puerto Rico, breaking California into multiple states, and expanding the House of Representatives. The Republican Senate’s refusal to even consider Merrick Garland for Antonin Scalia’s seat, Faris writes, violated “a norm that presidents should get to nominate whoever they like, within reason.” He continues: “Because of this unspoken agreement between the two parties, both sides regarded Supreme Court openings as what they are — lotteries to be won by lucky presidents, or lost by those unfortunate enough not to preside over an opening. The GOP’s treatment of Merrick Garland means that this informal agreement is trashed.” That, to Faris, makes extraordinary measures like court-packing suddenly viable. And the threat of a conservative court undoing just about any legislative accomplishments of the next unified Democratic government makes it necessary: “A Court that strikes down a Medicare For All insurance system, or legislation establishing equal funding for public education, or that chips away at abortion rights, gay rights, and other issues that are now supported clearly by a majority of the public will create a profound crisis in American society of the likes that we haven’t seen since the Great Depression.” To lower the stakes of confirmation battles, Faris favors eliminating lifetime tenure for judges and adopting the nonpartisan group Fix The Court’s plan of nonrenewable 18-year term limits. But unless nominees voluntarily pledge to step down after 18 years (which would effectively be a form of unilateral disarmament if only one party’s nominees take that pledge), term limits would require a constitutional amendment to enact. Court-packing, by contrast, only requires an act of Congress and could pressure Republicans to accept term limits as a compromise. “If the reactionary right is unwilling to go along with this idea, as they almost certainly won’t be due to short-term political calculations, Democrats must use the power granted to them by the Constitution to pack the Supreme Court, protect the legislation demanded by a majority of Americans and, hopefully, to convince their opponents that the current structure of the court system cries out for a bipartisan solution,” Faris concludes. In the aftermath of Kennedy’s retirement, a number of leftist/liberal writers echoed Faris’s arguments. Attorney and writer Mark Pickett argued in the Outline, “increasing the size of the Court is an entirely proportional response the GOP’s abuse of process. Gorsuch’s appointment alone justifies it. In shifting the Court from a potential 5 to 4 liberal majority to a 5 to 4 conservative majority, the Republicans effectively stole two votes. Increasing the Court’s size to 11 justices would merely rebalance what was taken.” Todd Tucker, a political scientist and fellow at the Roosevelt Institute, argued more explicitly on the basis of policy outcomes in Jacobin. “With union density near an all-time low and climate catastrophe on the horizon, future lawmakers will need tools even more robust than what FDR was able to get through — think a Green [National Industrial Recovery Act] on steroids,” Tucker writes. “A handful of justices pulled from Federalist Society debating clubs can’t and shouldn’t get in the way of a more democratic and sustainable economy.” The existence of historical precedents for court-packing beyond FDR further bolsters the argument for it. In a 1968 article for the Baylor Law Review, political scientist JR Saylor detailed “seven occasions Congress has enlarged or diminished the size of the Supreme Court by one or two judges.” Each of these seven times, the changes were made either to “purge the Court of … justices making decisions objectionable to an incumbent of the White House or to a dominant party majority in Congress” or to “‘pack’ the Court in order that the policies of the government in power would be upheld as constitutional.” Those seven times were: In 1801, before the inauguration of Thomas Jefferson, the outgoing Federalist Party passed the Judiciary Act of 1801, shrinking the court from six to five members by providing that the next member to die or resign would not be replaced. Saylor describes this as “undoubtedly an attempt made by the Federalists to keep the Court wholly Federalist.” In 1802, Jefferson’s Democratic-Republican party repealed the 1801 law and returned the court to six members. In 1807, the Jeffersonian-dominated Congress expanded the Court to even members, to accommodate a new judicial circuit covering Kentucky, Tennessee, and Ohio, then new additions to the union. In 1837, two new circuits were created and the Court’s size increased to nine; Saylor credits this to the geographic pressures of America’s westward expansion, but notes that Andrew Jackson quickly took advantage and appointed two new justices the day before he left office. In 1863, Congress increased the Supreme Court’s size to 10 members in the midst of the Civil War. Saylor explains, “There was a widespread suspicion that Lincoln wanted another man on the Court on whom he could depend lest the body invalidate some of the crucial and doubtful wartime legislation which was coming before it at that time.” In 1866, as pro-Reconstruction Republicans in Congress did battle with President Andrew Johnson, Congress passed a law barring Johnson from filling vacancies until the Court shrank to eight members, which occurred the following year. In 1869, with pro-Reconstruction President Ulysses S. Grant in office, Congress increased the court’s size to nine, where it’s stayed ever since. That history is not one of politically disinterested policymakers negotiating impartially as to the Court’s size. It’s a history of political manipulation with an eye toward partisan advantage, and some of the most heroic figures in American history — Lincoln, Radical Republicans in Congress like Thaddeus Stevens and Charles Sumner, Grant — engaged in the practice. The arguments against court-packing Court-packing was unpopular with the public when proposed by Roosevelt, and there’s a reason that many constitutional scholars and political scientists continue to decry it to this day. In How Democracies Die, Harvard comparative politics scholars Steven Levitsky and Daniel Ziblatt characterize 1937 as one of America’s close calls with democratic backsliding. “Democratic institutions depend crucially on the willingness of governing parties to defend them — even against their own leaders,” Levitsky and Ziblatt write. “The failure of Roosevelt’s court-packing scheme and the fall of Nixon were made possible when key members of the president’s own party … decided to stand up and oppose him.” In their 2017 paper “How to Lose a Constitutional Democracy,” University of Chicago law professors Aziz Huq and Tom Ginsburg concur, writing, “The presidential effort to pack the Supreme Court represents a low point for the rule of law in the United States, and is a technique that has been followed by modern-day illiberal democrats.” It’s not hard to see why political scientists taking a more international view would see court-packing as, on its face, a threat to democratic institutions. As Huq and Ginsburg note, court-packing is a frequently used tool in the toolkit of would-be authoritarians. To give a few examples: In 1946-47, Argentina’s populist president and former military coup conspirator Juan Perón successfully impeached four out of the country’s five Supreme Court justices in a bid to consolidate power. In 1989, Argentine President Carlos Menem, fearing Supreme Court opposition to his privatization schemes, expanded the court from five to nine members and packed it with sympathetic judges. In 2004, Hugo Chavez’s allies in the National Assembly of Venezuela expanded the Supreme Court from 20 members to 32 and packed it with Chavez loyalists. Among many other attempts to weaken the judiciary, Turkey’s authoritarian President Recep Tayyip Erdoğan, then the prime minister, in 2010 pushed through a referendum increasing the Constitutional Court’s size from 11 to 17 and enabling him and his loyalists to fill the new vacancies. In 2012, Juan Orlando Hernandez, then the president of Honduras’s National Congress and today the increasingly dictatorial country’s right-wing president, conspired to sack four of the five Supreme Court justices and replace them with his allies. As part of Viktor Orban’s rise to power as Hungary’s dictator, in 2010 he and his Fidesz party amended the rules of Supreme Court appointment so that the opposition no longer had to assent to nominees; in 2011 they expanded the number of judges from 11 to 15; in 2012 and 2013 they expanded terms on the bench from nine to 12 years and eliminated the 70-year age limit previously in place. These moves, together, resulted in 11 out of 15 judges being Fidesz loyalists. Poland’s authoritarian nationalist Law and Justice party in 2017 seized control over the Supreme Court by pushing legislation that gives the ruling party the ability to appoint new judges and the power to dismiss judges below a certain retirement age (which happens to disproportionately enable the dismissal of judges critical of the Law and Justice party). In the wake of massive public opposition, the president vetoed the legislation, only to accept a very similar bill months later. All this followed the party’s 2015 decision to not swear in judges appointed by their predecessors and to force a supermajority requirement on the court, effectively weakening it. The pattern is clear: Court-packing is what autocrats do as they begin to consolidate their power. And it’s been a particularly popular method in the past couple decades. It’s not a thing of the past, and is currently used by the authoritarian backsliders (Orban, the Law and Justice party, Erdoğan) that people who worry about Trump’s anti-democratic tendencies compare him to. A norm-busting tool to preserve democracy? Supporters of court-packing could argue that just because the same method is used doesn’t mean that court-packing itself is anti-democratic. To give an analogy: When Italy abandoned proportional representation in 1923 by adopting the Acerbo Law, it did so to try to engineer landslide victories for Benito Mussolini’s fascists; but it doesn’t follow that any country that doesn’t use proportional representation (like the US or the UK or Canada) automatically is an autocracy. Court-packing is a tool: it can be used for authoritarian ends, or for democratic ones. To which critics would reply: not so fast. Even a well-intentioned court-packing scheme (like FDR’s arguably was) can set off a cycle of mutual escalation that winds up discrediting and weakening the institution being battled over. The Supreme Court has no army. Its authority rests on the thin reed of public acceptance and political forbearance. If it were to be weaponized in a court-packing scheme, its rulings might suddenly stop being obeyed. Let’s say that President Joe Biden packs the court in 2021, and the Court subsequently overrules Milliken v. Bradley and forces white suburbs across the country to bus their kids into inner-city public schools, and to accept (disproportionately black and Latin) students from poor neighborhoods bussed into their own schools. This would be the correct result, in my opinion. Milliken v. Bradley was a disastrous decision that drastically undermined the cause of school desegregation. But if such a ruling followed a court-packing effort, how much do you want to bet that the rich suburbs of Chicago’s North Shore would actually start bussing their kids to Englewood? Or that Beverly Hills would let students in from Compton? Or would they view the ruling as illegitimate and simply not obey? You could imagine the same for any number of issues: Alabama refusing to issue same-sex marriage licenses and disregarding any Supreme Court rulings forcing it to obey Obergefell v. Hodges; South Dakota banning all abortions save when the life of the mother is at risk, and ignoring Supreme Court rulings striking the law down. Ifthis all sounds far-fetched, let me quote my colleague Ian Millhiser, who is broadly sympathetic to court-packing as a last-ditch effort to prevent the Supreme Court from entrenching economic inequality permanently: “packing the Court would effectively destroy the legitimacy of the federal judiciary and potentially embolden right states … to ignore decisions they don’t like. No more Roe. No more Obergefell. No more Fourth Amendment.” Now maybe, ultimately, weakening the Supreme Court is a good thing. Plenty of legal scholars on both sides of the aisle have, for years, argued that the US goes too far in embracing judicial review; few other countries give their highest courts the power we give ours to strike down laws passed by democratically elected legislators. Even in Canada, the parliament and the provinces retain the power to reverse Supreme Court decisions with supermajority votes. Perhaps court-packing would set off a spiral that results in a dramatically weakened Court, and power returned to the states and Congress to settle contentious issues like abortion and desegregation and LGBT rights through democratic processes. I’m extremely sympathetic to that argument. But it’s also possible that’s not what happens, that court-packing merely leads to more games of constitutional hardball and enables a future president to push through legislation that makes him and his allies basically impossible to dislodge from power, with a packed Supreme Court that is unwilling and unable to stop him. That, roughly, is what has happened in Poland, Hungary, Honduras, Venezuela, and Turkey. It could happen here too.
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The Pandemic Is Defeating Hollywood Blockbusters
Data gathered this weekend appeared to hold seismic news for Hollywood—specifically Disney. A report from Yahoo suggested that a shocking 9 million Disney+ users had streamed the studio’s Mulan remake in its first 12 days of release, translating into a gross of $261 million. That’s a staggering number for an on-demand rental and for an industry that’s been struggling through pandemic-related cinema closures. If Disney can make that kind of money without American theaters, does it need American theaters at all?The only problem is, Mulan didn’t actually make $261 million in 12 days. Yahoo had misinterpreted numbers from an analytics firm that estimated Mulan’s viewership, and the firm’s co-founder clarified that grosses were more likely $60 million to $90 million—well below the movie’s reported budget of $200 million. Not only does it seem that Mulan made modest sums in the United States (though Disney has yet to release official numbers), but the movie also had a disappointing theatrical rollout in China. Another grand experiment by Hollywood in the COVID-19 era, another flop. As the end of 2020 draws near, studios still haven’t figured out a sustainable way to bring their most expensive blockbusters to audiences.[Read: Hollywood’s ‘Tenet’ experiment failed]As with Warner Bros.’ release of Christopher Nolan’s Tenet, which has had its own difficulties, Mulan’s mediocre release had many complicating factors. Disney took two parallel swings domestically and globally, each approach laden with risk. In America, the studio decided to offer the film only to Disney+ subscribers for an extra $30. Mulan was also put in theaters abroad, given the lower COVID-19 rates in other countries; Disney’s hope was that the film’s story (rooted in Chinese myth) and its array of Chinese stars (Liu Yifei, Donnie Yen, Gong Li, Jet Li, and others) would help make it a box-office success in China.Neither bet really paid off. American viewers probably balked at the idea of paying $30 on top of a Disney+ subscription fee. The film may have also been affected by the revelation that parts were shot in Xinjiang, the region of China where Uighur Muslims have been imprisoned in internment camps, although Disney issued no official apology, which would have angered the Chinese government. Disney’s CFO, Christine McCarthy, nonetheless acknowledged that controversy “generated a lot of issues for us.” Another possible reason for the film’s underwhelming performance in China? Lack of interest. China’s movie industry already makes plenty of splendid medieval epics along the same lines as Mulan, and Disney’s remake didn’t offer anything especially new.Stateside, one could argue that Disney made the right gamble. Tenet is playing in mostly empty theaters and has grossed $36 million domestically; even the lower end of the estimates cited by Yahoo would suggest that Mulan made twice as much online. Because Disney released the film exclusively on its own platform, it gets to keep all of that money, as opposed to having to split it with cinemas or with companies such as Apple and Amazon. Even so, the film needs to make far more than $90 million to cover its budget, so the overseas release was crucial. But Mulan stumbled—its grosses dropped a disastrous 72 percent in its second weekend in China.[Read: The question that ‘Mulan’ doesn’t ask]Tenet has had the opposite problem. While its theatrical play in America hasn’t worked, its overseas numbers have been tremendous, making the film’s global total roughly $250 million in the past month. That number could plausibly tick up above $400 million as the fall wears on, which would be a huge win for Warner Bros., given the circumstances. Still, neither the Mulan nor the Tenet approach has been entirely successful, and existential concerns about the health of America’s cinemas persist as moviegoers remain skittish about returning to theaters in the middle of a public-health crisis.The simple fact is that no major studio has been nimble enough to get around the pandemic’s biggest obstacles. This is partly due to Hollywood’s increasing reliance on blockbusters. In decades past, Hollywood churned out plenty of cheaper movies that relied on word of mouth and could play for months on end, slowly racking up profits. But modern tentpole releases such as Mulan and Tenet are designed to have spectacular global rollouts, packing theaters and securing massive opening-weekend grosses. Think hundreds of millions of dollars rather than merely tens of millions.Hollywood knows how to function in only one way anymore, and that has made the industry devastatingly vulnerable this year. Funnily enough, the best-case scenario is probably something along the lines of Tenet or Mulan, films that simply break even. Until the U.S. returns to normal (which might not be until late 2021), cinema will have to take many more swings and misses. In the meantime, audiences get the worst of both worlds: They’re being pressured by studios to return to theaters in droves and being charged big bucks to watch new movies at home, all while waiting for life to be good again.
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