2018 ELECTION PREDICTIONS

 

2018 ELECTION PREDICTIONS

By:

LeRoy Goldman

November 5, 2018

The election is upon us and the campaign ends with both sides telling us that it's the most important election in modern American history. We've heard that refrain from presidents Trump and Obama, from Vice-Presidents Pence and Biden, from Oprah Winfrey, and from commentators on both Fox and MSNBC. When folks who hate one another, don't trust one another, and refuse to work with one another agree on something, don't believe it. This election is is nothing more than a rerun of 2016 when, as you will recall, most Americans were disenthralled with both Hillary Clinton and Donald Trump. In 2018 it's more of the same with our having to choose between their surrogates.

More on that sorry state of affairs below, but let’s get to what most of you are focused on, who's gonna win. Attempting to predict the outcome of a congressional election starts by knowing whether or not there is also a presidential election. If not, as is the case this year, the dynamics of the election are frequently quite different than elections for Congress and the White House. The two most striking differences are that voter turnout in an election for Congress only tends to be far smaller then in presidential years, and those who do turn out tend to be older and whiter than is the case in presidential years. Thus, as a general rule, the Republicans have a real advantage in elections like the one tomorrow. And there's another factor that needs to be kept in mind. When a congressional election follows the election of a new president, as is the case this year, it is more likely than not that the new president's party will lose seats in the congressional election. This year it's clear that turnout is going to be very large. That's not good news for the GOP.

And there have been extreme examples of a president's party losing seats following his victory two years earlier. In the 1994 congressional election, following the election of president Clinton in 1992, the GOP gained 54 seats in the House and took control of that chamber for the first time in 40 years. The Republicans also gained 9 seats in the Senate and captured it too. In 2010, following the election of president Obama, the pattern repeated itself. The GOP gained 63 House seats, 6 Senate seats, controlled 29 Governor's mansions, and gained 680 state legislative seats nationwide. It was the largest gain in a midterm election since the Great Depression.

1994 and 2010 were Tidal Wave congressional elections, Red Tidal Waves. For months now there has been talk and expectation of a Blue Tidal Wave coming tomorrow. Don't bet on it. Tomorrow will be a better day for the Democrats than the Republicans, but it will turn out to be a win on points, not by a knockout. The Democrats will recapture the House of Representatives, gain Governors and state legislative seats, but fail to recapture the Senate. GOP losses will be muted by the effect of gerrymandering in the House and the fact that most of the Senate seats up this cycle are being defended by incumbent Democrats, not vulnerable Republicans.

HOUSE OF REPRESENTATIVES

In order to recapture the House the Democrats need to gain a net of at least 23 seats. There is no doubt that the wind has been at the Democrat's back ever since they woke up on the morning of November 9, 2016 and found to their disbelief that Donald Trump was President-elect. The Never Trumpers have been on the warpath ever since their worst nightmare came to pass. And president Trump has deliberately and stupidly played right into their hands. Most importantly, he has managed to enrage millions of Americans, particularly educated, white women. Many of them live in suburban congressional districts that have traditionally elected moderate Republicans. That is about to change, and change with a vengeance, as moderate Republican women either vote Democratic or stay home. That is why so many of the Republicans who have retired from Congress in the last two years have represented these suburban districts. They have seen the handwriting on the wall, Trump's handwriting.

Let me boil the battle for the House down to just two districts, Virginia's 10^th and Michigan's 8^th. That's risky, but what happens in districts like these will, I believe, tell the tale for the composition of the House when all is said and done.

VIRGINIA-10 The 10^th is located in Northern Virginia and stretches from Dulles Airport in Chantilly west to the city of Winchester and the West Virginia state line. The district is largely suburban and overwhelmingly white. The median income is over $120,000. More than half of the adults in the district hold at least a college degree. Since it was created in 1952, it has been represented by a Republican for 60 of its 66 year history. Prior to the election of the current incumbent, Barbara Comstock, it was represented by Republican Frank Wolf from 1981-2014. Comstock served as an aide to Wolf prior to winning the seat in 2014. She has served in the Virginia House of Delegates and is a lawyer. In 2014 she won with 56% of the vote and was reelected in 2016 with 53% while Hillary Clinton was carrying the district with 52% of the vote.

Comstock is opposed by Democrat Jennifer Wexton. She is a lawyer and in 2014 was elected to the Virginia Senate. If Wexton wins, and she will win, consider it the beginning of end for moderate Republicans in suburban districts. Make no mistake about it, Comstock's loss will not be principally attributable to Wexton. It will be principally attributable to Trump's alienation of educated Republican women. How dumb is that?

MICHIGAN-8 The 8^th is located in Southern Michigan running East from Lansing, the State Capital, into suburban Oakland County just North of Detroit. The district is overwhelmingly white, 84%. And it has been gerrymandered to make it a safe Republican district. When Republican Mike Rogers retired in 2014 he was replaced by the current Congressman, Republican Mike Bishop. Bishop previously served as the Majority Leader in the Michigan State Senate.

Bishop is a graduate of University of Michigan and holds a law degree from Michigan State University. He won the 8^th district in 2014 with 55% of the vote and was reelected in 2016 with 56% of the vote. President Trump carried the district in 2016 by 7 points.

Bishop is opposed by Democrat Elissa Slotkin. She brings a remarkable resume to her upstart campaign. She grew up on a family farm in Holly, Michigan. Her family owned Hygrade Foods, the makers of Ball Park Franks which were introduced at Tigers Stadium in the 1950s. After college she went to Kenya, Tanzania, and the Middle East and learned Arabic. Slotkin ended up at the CIA and ultimately served three tours of duty in Iraq as an intelligence liaison after 9/11.

Ultimately she ended up working not only at the CIA but also at the State Department Defense Department, and the White House. When President Obama took office in 2009 Slotkin was asked to stay on!

Interestingly enough it is not her national security background that propelled her to challenge Congressman Bishop. Rather it was seeing Bishop in the Rose Garden with President Trump in 2017 during the celebration of the House passage of the health bill that would have penalized persons with pre-existing conditions. Slotkin's mother had died from ovarian cancer in 2011 and she did not qualify for health insurance.

Under normal circumstances Bishop should win reelection without breaking a sweat. These are not normal circumstances. Slotkin wins.

If either Barbara Comstock or Mike Bishop loses, I believe the GOP House majority hangs by a thread. If they both lose, it's Katy bar the door. And that's my prediction. I believe the Democrats will gain 34 seats and recapture the House of Representatives. The final tally will be 229 Democrats, 206 Republicans.

A result like this will also alter significantly the make-up of the House Republican caucus. If the moderate Republicans are disproportionately defeated tomorrow, the Republicans left standing will be those who are the most conservative, like the members of the Freedom Caucus. They will be forced to adjust to a new life, one in which they will have to learn the meaning of the word, IRRELEVANT. They and the President will have themselves to thank for their demise.

And that reminds me that revenge is a dish best served cold!

SENATE

The Republicans currently control the Senate 51-49. Two Independents, Bernie Sanders (VT), and Angus King (ME), are included in the Democratic total because both senators caucus with the Democrats and vote with them most all the time. This year thirty-five Senate seats are up for election, 26 are currently held by Democrats and 9 are held by Republicans. This is a highly unfavorable map for the Democrats. Not only do they have to defend many more seats than does the GOP, it is also the case that Democrats are having to defend ten seats in states won by Donald Trump in 2016, while the GOP only has to defend one seat in a state won by Hillary Clinton in 2016, Nevada. That reality is the principal reason the GOP will retain control of the Senate, and may well increase its majority.

As is the case in virtually every senate election, many incumbents seeking reelection do not face serious competition. This year is no exception. Let's begin with the low-hanging fruit: Democratic incumbents will retain their seats in 20 states; Maine, Connecticut, Massachusetts, Rhode Island, Vermont, New Jersey, Maryland, Delaware, New York, Pennsylvania, Virginia, Michigan, Minnesota, Minnesota, Ohio, Wisconsin, New Mexico. California, Washington, and Hawaii. Republicans will retain seats in 5 states; Mississippi, Mississippi, Nebraska, Utah and Wyoming.

Counting the Senators not up for election this year plus the low hanging fruit gives us 47 Republicans and 43 Democrats. Thus the balance hangs in the remaining 10 states where the outcome is by no means clear. Let's go through them one by one:

FLORIDA- Senator Bill Nelson (D) is opposed by Governor Rick Scott (R). Nelson has never been a magnetic personality in Florida politics. His service in the Senate has been competent and workman like. Scott on the other hand has been a very popular Governor and also has the advantage of having very deep pockets. All things being equal Scott should win. But all things are not equal. And the inequality has nothing directly to do with the Senate contest. It does have to do with the contest for Governor between Republican Congressman Ron DeSantis and Democrat Andrew Gillum the Mayor of Tallahassee who is African-American. I know it's difficult to imagine anyone more Trumpian than president Trump, but, if anyone fits that description, it's Ron DeSantis. Gillum, the surprise winner of the Democratic Primary is fiercely Liberal and is supported by Bernie Sanders. Although the contest is a toss-up, I believe Gillum will prevail and in doing so will benefit from a surge in voter turnout by African-Americans. And they will vote for Nelson too. Gillum drags Nelson over the finish line. 47 Republicans-44 Democrats.

WEST VIRGINIA-Senator Joe Manchin (D) is opposed by the Republican West Virginia Attorney General Patrick Morrisey. Over the past quarter century West Virginia has gone from Solid Democrat to Solid Republican. President Trump carried it in 2016 by more than 40 points. But, if any Democrat can win in West Virginia, it's Joe Manchin. Prior to coming to the Senate he was an enormously popular Governor and his folksy, down home personality is a perfect fit for the state. Manchin wins. 47 Republicans-45 Democrats.

TENNESSEE-Republican Congresswoman Marsha Blackburn is opposed by former Democratic Governor Phil Bredesen. Republican Senator Bob Corker announced earlier this year he would not seek reelection. No Democrat has been elected to the Senate from Tennessee since Al Gore won in 1990. Bredesen was a popular Governor of Tennessee, and Blackburn is both strident and lackluster. But the climb is too steep fro Bredesen. Blackburn wins. 48 Republicans-45 Democrats

INDIANA-Democratic Senator Joe Donnelly is opposed by Republican businessman and former state representative, Mike Braun. The Hoosier state is the one Midwest state that is unlike the rust belt states that surround it. With the exception of Lake County just east of Chicago in its northwest corner Indiana was settled more form the American South than from European immigrants. Thus it is more conservative and more Republican. Joe Donnelly won easily six years ago because his Republican opponent self destructed when he said “rape is something God intended”. If Braun can squeak out enough votes in the Republican suburbs of Indianapolis, he'll win. The fact that President Obama was campaigning in Gary yesterday, which is all African-American, tells us that it's gonna be close. 49 Republicans-45 Democrats.

MONTANA- Democratic Senator Jon Tester is opposed by Republican State Auditor Matt Rosendale. President Trump carried Montana by 20 points and will have made an unprecedented four trips to the state to campaign for Rosendale. There is plenty of bad blood between Trump and Tester, and Tester showed his independence by not voting to confirm Brett Kavanaugh to the Supreme Court even though the vote was extremely unpopular back home. Tester is a third generation Montanan. Rosendale is from Maryland. Tester wins. 49 Republicans-46 Democrats.

NORTH DAKOTA-Democratic Senator Heidi Heitkamp is opposed by Republican Congressman Kevin Cramer. President Trump carried North Dakota by 36 points two years ago. Unlike the situation in Montana, Heitkamp's opponent is home grown and popular. When Heitkamp voted against Brett Kavanaugh she sealed her fate. Her fall back position is to hope for a cabinet appointment in a Democratic Administration in 2021. Cramer wins. 50 Republicans- 46 Democrats.

MISSOURI- Democratic Senator Claire McCaskill is opposed by Republican State Attorney General Josh Hawley. Perhaps the bell tolls for Claire McCaskill this year. Initially elected to the Senate in 2006, she appeared to be doomed for reelection six years ago until her opponent self destructed by stating, that a woman could not get pregnant by “legitimate rape”. This time McCaskill faces a well funded, articulate opponent in a state that president Trump carried by 20 points. Hawley wins. 51 Republicans- 46 Democrats.

TEXAS- Republican Senator Ted Cruz is opposed by Democratic Congressman Beto O'Rourke of El Paso. No Democrat has won statewide office in Texas for a quarter century. But O'Rourke has turned what most thought would be a walk in the park for Ted Cruz into a spirited battle. That the President was forced to come to Texas and rename Cruz from “Lying Ted” to “Beautiful Ted” tells you everything you need to know. Cruz wins, but political change is on the wing in the Lone Star State. 52 Republicans- 46 Democrats.

NEVADA- Republican Senator Dean Heller is opposed by Democratic Congresswoman Jacky Rosen. This race likely will go down to the wire. It's the only state in this cycle that has an incumbent Republican running in a state carried by Hillary Clinton two years ago. And it's a weird state politically. The Democrats are dominant in Clark County, Vegas, and the GOP is dominant everywhere else. But Clark County has almost 70% of the states vote, and the key to victory or defeat lies in the hands of the overwhelmingly Hispanic members of the Culinary Workers Union who work on the Vegas Strip. Their political muscle is the handiwork of former Democratic Senate Majority Leader Harry Reid. Reid's machine was instrumental two years ago in enabling Catherine Cortez Masto to become the first Latina elected to the United States Senate. Now Reid has thrown his support to Rosen. He comes up short this time. Heller wins. 53 Republicans- 46 Democrats.

ARIZONA-Republican Congresswoman Martha McSally is opposed by Democratic Congresswoman Kyrsten Sinema to fill the seat of retiring Republican Senator Jeff Flake. The wild card in this race is John McCain. He was a war hero, a man of integrity, a conservative, and a man who knew that for the Senate to function it had to work across the aisle. All those admirable qualities made him the enemy of President Trump. Tomorrow McCain voters will take their revenge. Sinema wins. 53 Republicans-47 Democrats.

There you have it. The Republicans retain control of the Senate, and gain two seats, 53-47.

A CAVEAT

Included in the low hanging fruit states above is New Jersey where incumbent Democrat Bob Menendez is opposed by Republican Bob Hugin. New Jersey is an overwhelmingly Democratic state. and polls have consistently shown Menendez with a commanding lead. But earlier this year he dodged a bullet when a mistrial was declared in his corruption trial. Menendez is damaged goods, and I will not be shocked if lightning were to strike tomorrow and his defeat would turn out to be the major shocker of 2018 Senate election cycle.

CONCLUSION

This election, contrary to what the politicians of both parties and the media would have you believe, is not the most important in the nation's history. Far from that lofty description, it is in fact an embarrassment of politics at its worst. What we faced before the election was gridlock in Washington. What we will face when the new Congress convenes next January is gridlock. Nothing significant will have changed. Even if the Democrats had captured the House and the Senate it would have made no never mind. They would have lacked the 60 votes in the Senate to defeat filibusters. And, if by some miracle, the Democrats could have sent major legislation to the President, he would veto it, and the Democrats would not have the votes to override his vetoes.

What will be new next January will be the start of the 2020 Presidential campaign. Presumably that will lead to a battle between president Trump, assuming he will have found a way to silence Special Counsel Robert Mueller, and one of many Democrats from the far Left fringe of the Party who will likely be a female or a minority or both and whose every other word on the campaign trail will be “ME” or “TOO”.

If I were king, I'd dump the entire nation's supply of Dulcolax into the Potomac River on New's Years' Eve and let nature take its course. Maybe that would provide the explosive shock to the body politic that is so long overdue and so urgently necessary.

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WILL ROBERTS RULE?

By:

LeRoy Goldman

October 16, 2018

The nomination and confirmation of Brett Kavanaugh as an Associate Justice of the Supreme Court has led many Americans to rejoice because the Court now has a solid conservative majority. Perhaps so, but my guess is that cork-popping celebrations are either premature or wrong. More importantly, if they are premature or wrong, how might the Court change course? It's a consequential and deliciously complicated question.

I'm not suggesting that Brett Kavanaugh will turn out to be another David Souter turncoat now that he is on the High Court. There is substantial, solid evidence that he will become a reliable conservative jurist on the Supreme Court just as he has been during his more than a decade of distinguished service on the District of Columbia Court of Appeals.

No, the issue here is not Justice Kavanaugh, it's Chief Justice John Roberts, and the direction of the Supreme Court going forward. The task facing the Chief Justice is daunting, if not impossible. This is so because America is coming apart at the seams. The threat we face is no less than the unraveling of our unique form of constitutional governance. The evidence of our peril is everywhere evident.

Wherever you look, America has become a bitterly divided nation that no longer functions. Our dissolution has grown immensely worse over the past quarter century. Most of us can see the problem most easily by looking at Washington. There it is obvious that we have a president who represents only half the nation, the Red and White half, and that's OK with him. And before him we had a president who represented the other half of the nation, the Blue and Black half, and that was OK with him.

In an almost evenly divided Congress it's obvious that, instead of passing bipartisan legislation that grapples with the nation's problems, Congress is addicted to a war of annihilation. The net effect is stalemate, a zero sum game that can only be won if the other side loses.

But Washington's stalemate is not the root problem. It is simply a manifestation of the root problem—us. A quarter century of Red/Blue venom has now poisoned the nation. We are in the midst of a new Civil War that neither side can win, but both will lose.

Don't be naive enough to think that the 2018 or 2020 elections will some how restore good governance. The probability of that is zero.

Although it's a slim reed, there's a chance that the Supreme Court might illuminate the way forward. For that to be the case, it will be necessary for John Roberts to demonstrate a level of competence, savvy, and courage that we've not yet seen from him.

Don't underestimate the magnitude of the task ahead for Roberts and the Court. It too is bitterly divided. And with the departure of Justice Kennedy and the arrival of Justice Kavanaugh there is a real chance the High Court will become just as impotent as the president and the Congress.

At his confirmation hearing before the Senate Judiciary Committee in 2005 John Roberts famously said, “Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

And before that same committee this year and at his ceremonial swearing in at the White House Brett Kavanaugh said, “A good judge must be an umpire—a neutral impartial arbiter who favors no litigant or policy” At the White House he said, “The Supreme Court is an institution of law. It is not a partisan or political institution. The justices do not sit on opposite sides of an aisle. We do not caucus in separate rooms. The Supreme Court is a team of nine, and I will always be a team player on a team of nine.”

Maybe Roberts and Kavanaugh believed what they said, Maybe not. But the hard fact of the matter is that the reality of the Court's behavior flies in the face of those flowery words.

Writing in The Atlantic about the growing partisan divide on the Supreme Court in August of 2014 Garrett Epps stated, “In fact it seemed that American now has red and blue justices on its highest court.” Further he wrote, “On the Roberts court, for the first time, the party identity of the justices seems to be the single most important determinant of their votes.”

Writing in the Washington Post earlier this month Ruth Marcus correctly ridiculed part of Judge Kavanaugh's testimony before the Senate Judiciary Committee as “laughably naive” when he told the Committee, “The Supreme Court must never, never be viewed as a partisan institution.”

Not so fast Kemosabe. The Roberts Court has been on a trajectory of partisan deadlock for over a decade. That partisanship comes not from just the four Conservative justices. It also comes in equal measure from the four Liberal justices. To miss that point, misses the point.

In fact much of the frenzy over the necessity for a swing vote on the Court, like O'Connor or Kennedy, stems from the fact that all too frequently the other eight justices are predictable ideologues. We spend way too much time focused on the Court's one Swing vote, and not nearly enough time worrying about the clear and present danger posed by the other eight intransigent justices.

Now with the retirement of the occasional swing vote of Justice Kennedy and the elevation of the almost certainly reliably conservative vote of Justice Kavanaugh the Roberts Court stands at a pivot point in history.

Either it will become an indistinguishable part of polarized Washington, or it can be instrumental in restoring the sort of constitutional governance that the Founding Fathers expected from all three branches of the Federal Government. The choice it makes will be determined by John Roberts. The easy choice, more of the same, is the wrong choice. The hard choice, risking inevitable tribal outrage and condemnation from the public, is the right choice.

How might the Chief Justice begin to make the right choice? It would necessarily need to be dramatic and obvious, not nuanced and opaque. Start with the cluster of cases now before the Court in respect of gerrymandering and end that opening move with a decision or set of decisions that strike down gerrymandering—political gerrymandering AND racial gerrymandering.

Such a decision or set of decisions would be nothing less than one of the landmark Supreme Court rulings, right up there with Marbury v. Madison, Youngstown Sheet & Tube Co. v. Sawyer, Brown v. Board of Education, and Roe v. Wade. And such a ruling would also profoundly alter the make-up of Congress for the better because the declaration that both political and racial gerrymandering are unconstitutional would give Congress the bipartisan enema it so desperately needs.

The Supreme Court has been schizophrenic with respect to its consideration of cases respecting political and racial gerrymandering. Regarding political gerrymandering, the Court has been loath to rule. In contradistinction it has willingly and repeatedly weighed into cases involving racial gerrymandering. That differential behavior by the Supreme Court has contributed enormously to the paralysis that has corrupted the House of Representatives.

Political gerrymandering is as American as apple pie. The term dates back to an article in the Boston Gazette on March 26, 1812. At that time Elbridge Gerry was Governor of Massachusetts. He had signed into law a bill that redrew electoral district lines in the state that gave partisan advantage to his party. Some of those districts had bizarre shapes in order to achieve their partisan purpose. The most notable was a state senate district covering Essex County. It resembled a salamander. Thus the term, Gerrymander, was born.

The practice of drawing electoral districts in a way to advantage one party over another has continued ever since. After all, elections have consequences and no one should be surprised that the victors would put their thumb on the scale in order to reap the benefits of what voters had decided at the ballot box.

Thus, it's not surprising that the Courts traditionally chose to not intervene in efforts to dismantle the process. But all that changed exactly 150 years later when on March 26,1962 the Supreme Court handed down its decision in Baker v. Carr.

In the Baker decision a bitterly divided Court weighed into the “political thicket” when Justice Brennan, writing for the majority, decided that the redistricting of state electoral districts in Tennessee was a justiciable issue. Although the State constitution required redistricting every ten years, Tennessee had not complied with that requirement for over a half century. Accordingly, some districts had ten times as many residents as others. Baker argued such size variations denied him equal protection of the law under the Constitution's 14^th amendment. Brennan, writing for a 6-2 majority, agreed, and the principle of one man, one vote was established, and reinforced two years later in the Court's ruling in Reynolds v. Sims.

In a scathing dissent justices Frankfurter and Harlan argued that the Court had turned its back on history and violated the Constitution's doctrine of Separation of Powers.

Chief Justice Earl Warren, who joined Brennan in the Baker decision, called that decision the most consequential decision during his tenure on the Court. That's a remarkable a statement in light of Warren's landmark unanimous opinion in Brown v. Board of Education in 1954 that overturned the longstanding doctrine of Separate but Equal in public education.

Although the Court's ruling in Baker was monumental and controversial, the implementation of it was straight forward. Election districts had to be almost equal in size. That's easy to achieve. If you look at the nation's 435 congressional districts today, virtually all of them have about the same number of residents, approximately 711,000.

But having equal numbers of residents doesn't preclude the drawing of district lines that favor, or grossly favor, one party over the other. And there's the rub.

Here we are more than a half century since Baker and the politicians in both parties have run amok gerrymandering. Forget putting a thumb on the scale, now our elected representatives have jumped on the scale and crushed it. Aided by software that enables them to tailor district lines such that only one party can win, they have made a mockery of representative government.

North Carolina provides a graphic example of this unconstitutional abuse of power. North Carolina is a swing state, evenly balanced between Republicans and Democrats. In 2016 Donald Trump carried it narrowly, by 3%, and Roy Cooper ousted Republican Governor, Pat McCrory by less than 1%. Yet the incumbent party won in every congressional district, and their margins of victory ranged from an insurmountable 56% to an eye-popping 69%. That's political gerrymandering run wild.

Although numerous cases have come before the Supreme Court challenging the constitutionality of political gerrymandering, the Court has yet to find a way to successfully implement a scheme that would stuff the gerrymandering genie back into the bottle. Last year the High Court considered such cases from North Carolina, Wisconsin, and Maryland. It punted on all three in part because it could not determine how to figure out how to impose a workable remedy, and because the ideological chasm on the Court mitigates against a remedy that is fair and balanced.

Racial gerrymandering is a completely different kettle of fish. It's much more recent, dating to the passage of the Voting Rights Act (VRA) in 1965 and amendments thereto in subsequent years. The VRA is landmark legislation and it's enactment in 1965 was long overdue. It has been instrumental in curbing longstanding voting discrimination against minorities, especially in the South.

The VRA has also mandated the creation of Majority-Minority congressional districts. These are districts that have a majority of either Black or Hispanic residents and are drawn to “guarantee” the election of a minority individual from such districts. Over the past several decades there has been an explosion of Majority-Minority congressional districts. There are now more than 125 such districts, including two in North Carolina. Not surprisingly, virtually all of them are represented by Democrats. The logic supporting such a law was that racial discrimination would otherwise preclude the election of minorities to Congress.

Although the existence of such racial discrimination did serve as a barrier to the election of minorities to Congress at the time of the enactment of the VRA, the passage of time has without doubt significantly lessened that odious practice.

And that brings us to the unanticipated nexus between political and racial gerrymandering. The creation of an ever increasing number of Majority-Minority districts containing overwhelming numbers of minorities created an irresistible political opportunity for Republicans in many states. Those Black and Hispanic dominated districts enabled the GOP to become competitive and win many other districts that came to be solidly Republican as more and more minorities were packed into the districts mandated by the VRA. The net effect of all of this maneuvering has been advantage GOP.

The Supreme Court has shown no reluctance to rule on cases respecting racial gerrymandering. Unsurprisingly, the Court has consistently ruled in favor of Majority-Minority districts based upon the provisions of the VRA. It almost reversed itself in three related North Carolina cases, the so-called Shaw-Cromartie cases in the late 90s. But in the third and final such case, then Justice Sandra Day O'Connor, the Swing-Vote, switched her vote and North Carolina's Majority-Minority districts survived.

This bipartisan abuse of power has now reached the point that it has paralyzed the House of Representative, and, more importantly, flies in the fact of the Constitution and the clear intent of its framers.

They, without doubt, intended to create a governing structure that put control in the hands of the governed, not those in Washington. Concepts like the Rule of Law, Separation of Powers, Checks and Balances, and Equal Protection are at the heart of the Federalist Papers, the Constitution, and the Bill of Rights. All of that is threatened and being undercut by the symbiotic effect of political and racial gerrymandering that enables members of Congress and members of state legislatures to guarantee their own reelection in perpetuity.

This nation no longer needs to rely on the forced creation of Majority-Minority congressional districts. That they were once necessary does not mean they are necessary in perpetuity. The illogic of their current necessity can be easily grasped by applying that logic to this nation's presidential elections in 2008 and 2012.

The logic would have required that Barack Obama be declared the winner of the presidential election if he carried the three electoral votes of the District of Columbia with its overwhelmingly Black population. The logic would have held that candidate Obama could not have won any of the several states because he would have lost due to racial discrimination in all those states because they lacked a majority of minorities.

Of course, it didn't turn out that way. In 2008 Barack Obama carried the District of Columbia and 28 states while defeating a white opponent decisively in the Electoral College and by 10 million votes nationwide. In 2012 he was reelected by carrying the District of Columbia and 26 states while defeating a white opponent decisively in the Electoral College and winning the popular vote by over 5 million nationwide.

Majority-Minority congressional districts are no longer necessary. More importantly they are unconstitutional in that they violate the Equal Protection clause of the 14^th amendment and quite possibly the free speech protections of the 1^st amendment.

The remedy is obvious. The Supreme Court should rule that both the current forms of political and racial gerrymandering are unconstitutional. That's a daunting order, and most would quickly suggest that it's impossible to achieve. Perhaps, but the alternative is Armageddon.

I believe the only way to bring and end to both of these unconstitutional practices is to take them on together. That is counter intuitive, but stay with me now. Start by remembering that the High Court is ideologically polarized, the bleatings of its members to the contrary notwithstanding. That means the Conservatives on the Court are open to doing something to end racial gerrymandering, and the Liberals on the Court are open to doing something to end political gerrymandering.

The only way to get a sustainable majority to end both forms of gerrymandering is for Roberts to persuade all, or most all of, his colleagues on the Court that one must be the handmaiden of the other That is Chief Justice Roberts challenge.

Here's how it can be accomplished. Just as the Court ruled in 1962 that districts had to be essentially equal in population, now it should rule that districts need to essentially mirror the breakdown statewide among Democrats, Republicans, and Unaffiliated/Independent voters. That will do it. Sure it will result in oddly shaped districts that will encompass center cities, suburbs, exurbs, and rural areas all over the nation. But so what. We've lived with salamander shaped districts now for more than 200 years.

That is Roberts' pathway to bridging the chasm that divides both the Court and the nation. That is the move, if skillfully and successfully accomplished, that will make him one of the nation's greatest Chief Justices.

Earl Warren in his first year as Chief Justice unified a bitterly divided Court in 1954 when in the Brown decision the Court unanimously found the doctrine of Separate But Equal in public education unconstitutional. Now the urgently necessary giant leap forward is in John Roberts hands. Call it ROBERTS RULE.

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LeRoy Goldman

October 16, 2018

TRUMP'S DONE, PUT A FORK IN HIM

TRUMP'S DONE, PUT A FORK IN HIM

By:

LeRoy Goldman

July 18, 2018

Actually Trump was done before he threw his hat in the ring in 2015, before he won the Republican nomination, before he defeated Hillary Clinton, and before he took the oath of office about a year and a half ago. What's not yet clear is the manner and the timing of the ignominious end that awaits President Trump. The manner could take one of many forms: forced resignation, the workings of the Constitution's 25^th Amendment, Special Counsel Mueller's report, impeachment by the House and conviction by the Senate, inability to win the 2020 GOP presidential nomination, or defeat in November of 2020.

But, however it plays out, Donald Trump will not have a second chance to take the oath of office. What's less clear is whether this nation and its unique form of representative government will survive the firestorm. That is, by far, the more consequential question.

Trump's demise was baked in long before he embarked upon his political career. The hard fact of the matter is that he does not have the capacity, temperament, or the inclination to full fill the oath of office he took 18 months ago. You don't need to take my word for that. You only need look with clear eyes at his behavior as a candidate and as President.

The bill of particulars that indicts Trump is literally one for the history books. Prior to his stunning and utterly unexpected victory on election day in 2016, Trump had the advantage that accrued to him simply because no one, including Trump himself and his campaign team, believed he could win the Republican nomination or the presidency. Thus, with the perspective that he had nothing to lose Trump took the low road, the road he had traveled much of his life. Call it the wrecking ball road.

During the GOP primaries he disparaged all of his rivals in personal and humiliating ways. He trashed members of the written and electronic press. He vilified women, Blacks, and Hispanics all in the name of Making America Great Again. And, whether to his surprise or not, he learned that his scorched earth strategy worked.

Having won the nomination handily, it was predictable that Trump would step on the accelerator in an effort to destroy Hillary Clinton just as he had destroyed his Republican rivals for the nomination. The polls and the mainstream press kept up their self-serving drum beat that Trump would be a certain loser in November. By the narrowest of margins in three normally Democratic Rust Belt states voters proved them wrong.

In the greatest and most stunning upset in American political history Donald Trump had won. Whether you like it or not matters not much. What did and does matter much is what sort of president Trump would become.

Now we know, and none of us should be surprised. Trump could and should have signaled a fundamental course correction in his Inaugural address. It takes no more than average intelligence to know that the American people have become dangerously polarized over the last quarter century. It is commonly understood that the longstanding paralysis at both ends of Pennsylvania Avenue in Washington is a reflection of that polarization.

Trump could have and should have used his Inaugural address to tell the nation how destructive that polarization had become, how urgently necessary it was to stem its tide, and how he intended to accomplish that healing process. He did just the opposite. His deeply dystopian address doubled down on divisiveness, energized the Never Trump movement, and made starkly evident that America could expect more of that which had brought Trump to power. He forfeited his best and perhaps only opportunity to become a successful president. He should have fired the aide who wrote that speech, instead he's turned him into a senior adviser in the White House.

And then he staffed his White House and his Cabinet with a collection of individuals who have who have been unable and/or unwilling to serve either him or the nation well. Their collective incapacity is understood once one understands the prime directive they share and that assures their job security. Their Prime Directive is to be subservient, to be a yes-man/woman, to tell Trump he's right, brilliant, all-knowing. And it's a Prime Directive with razor sharp teeth. Cross the Boss and you're fired!

And it gets worse. It's not simply that Trump has browbeaten his handpicked advisers whose principal duty ought to include an ability and a willingness to forcefully challenge him when necessary. It's that Trump has also largely neutered Republicans on Capitol Hill. Starting with leaders like Senator McConnell and Speaker Ryan and including most of the GOP congressional foot soldiers the Republicans on the Hill have cowered in silence as Trump has taken steps with which they profoundly disagree. The list is eye popping. Here's a sampler: free trade and international trade agreements, the imposition of tariffs, health care reform, sanctions on Russia, the Iran Nuclear Agreement, relations with America's allies, Russian meddling in the 2016 election, and the Mueller investigation. Trump sycophants in the Executive Branch and on Capitol Hill have given the term “Lemming” a whole new meaning.

Over the course of the past several weeks Trump has taken his carnival act to Quebec, Singapore, Brussels, London, and Helsinki. No American can draw comfort from the trail of detritus, false bravado, and cowardice that litters Trump's wake.

In June Trump attended the G-7 meeting in Quebec on his way to the meeting in Singapore with North Korea's Kim Jong-un. Trump's opening move in respect of the G-7 gathering was to float the idea that Russia should be allowed to rejoin the group. Russia had been expelled following it annexation of Crimea and its military incursion into eastern Ukraine in 2014.

The G-7 meeting struggled unsuccessfully with the problems arising from Trump's imposition of steel and aluminum tariffs on nations including G-7 member, Canada. Following the meeting Canadian Prime Minister Justin Trudeau spoke out against the tariffs. Trump, en route to Singapore, struck back with a vengeance. He called Trudeau's comments, “very dishonest and weak.” Trump's Trade adviser, Peter Navarro said, “There's a special place in hell for any foreign leader that engages in bad faith diplomacy with President Donald J. Trump.”

Having trashed one of America's longest and strongest allies Trump met with the North Korean tyrant and came away all smiles. As yet there is nothing of substance to show for love-in between Trump and the North Korean dictator.

At NATO's annual meeting in Brussels not long ago Trump was again on the attack. Although the NATO leaders agreed to boost their defense spending in order to better address potential Russian aggression, Trump openly castigated our NATO allies for not paying their fair share. He then turned on Germany and called it a “captive” of Russia because of its reliance on Russian natural gas. Behavior like this goes way beyond simply being boorish and stupid. It raises real doubts in the minds of our NATO allies respecting whether America will be there in the event of Russian aggression. We know that Putin felt emboldened enough to march into the Crimea and the Ukraine in 2014. What if he next marches into the Baltic states, and NATO isn't sure where America stands?

From Brussels Trump flew to England to meet with Prime Minister Theresa May. For reasons that only the demented could comprehend Trump began the visit by giving an interview with the British newspaper the Sun. In it he attacked Prime Minister May while supporting her rival. He made use of inflammatory language concerning immigration, and was critical of May's handling of the intensely divisive Brexit issue. Americans and Brits have long taken pride in their “Special Relationship”. Today that relationship has a new and far different meaning. 77% of Brits have an unfavorable opinion of the President of the United States.

Having trashed this nation's allies on both sides of the Atlantic Trump lands in Helsinki to meet with Vladimir Putin. That meeting on July 16^th was the low point of Trump's world travel. He refused to challenge Putin on Russia's effort to manipulate our 2016 election. He stood on foreign soil and made explicitly clear that he believed Putin and not this nation's intelligence services concerning Russian interference in our election. He stood on foreign soil and characterized the investigation by Special Counsel Robert Mueller as disgraceful and a witch hunt. Senator John McCain described Trump's behavior as, “one of the most degrading performances by an American president in memory”.

In Helsinki Putin played Edgar Bergen, and Trump was his Dummy, Charlie McCarthy.

Trump's a proven failure. Worse yet he doesn't care and is incapable of a beneficial course correction. Worst of all he's imprisoned in a cocoon of narcissism from which there is no escape. That he has no way out of the mess of his own creation is small potatoes. Whether America has a way out of a quarter century of polarization now made incomparably worse by Trump is not small potatoes.

Trump's done, and it's likely that Special Counsel Mueller, A Republican and a Marine, will put the fork in him. Semper Fi.

Please contact me with comments at:  EmailMe

LeRoy Goldman (F.O.G.I.E.)

July 18, 2018

Our parties are primed for implosion

Our parties are primed for implosion

By:

LeRoy Goldman

Columnist

Times-News Online

June 17, 2018

I suppose a prudent person would conclude that it’s way too premature to say Donald Trump’s presidency may be chronicled by presidential scholars as one of the most consequential in the nation’s history. After all, he’s not yet completed his second year in office, and his re-election, if he survives the efforts of those who would drive him from office prematurely, is no done deal.

That said, it’s possible that Trump may well leave office having successfully destroyed both the Republican and Democratic parties. That’s no small accomplishment. It’s long overdue, and he’s already about halfway there. It’s not particularly relevant whether or not Trump’s intention is the destruction of the Democratic and Republican parties. What is relevant is whether or not it happens.

Each fall for the past four years, Chapman University in Orange, Calif., has published a list of what the American people fear the most. There are 80 items on the list. The top of the list last fall was “Corruption of Government Officials.”

I suspect some of you are thinking this fear is but a thinly disguised stalking horse for those who oppose Trump. Not so. The top fear in the Chapman listings for both 2015 and 2016 also was “Corruption of Government Officials.”

We can take heart that the American people have figured out that the government is corrupt and should be feared. However, we cannot take heart that the American people haven’t yet figured out that the root of this problem is not this growing bipartisan collection of corrupt government officials in Washington. No, the root of the problem is us.

The distinction is crucial. Because what counts is not whether the two political parties survive. What counts is whether America’s unique form of government survives.

Getting a handle on that is made vastly more difficult by the growing polarization of the American people. You can be sure that imbedded in those Chapman University polling data that show such fear of corrupt government officials are two cohorts of Americans who have almost nothing in common, a cohort of Republicans who believe Democrats are inherently corrupt and a cohort of Democrats who believe Republicans are inherently corrupt.

Our self-destructive tribal instincts have dominated American politics for the past quarter-century. It’s easy to identify those who have succumbed to this destructive behavior rather than having had the courage to risk their incumbency by opposing it. The list includes, but is not limited to, Presidents Bill Clinton, George W. Bush, Barack Obama and Trump. The list also includes Hillary Clinton, Mitch McConnell, Chuck Schumer, Paul Ryan, Nancy Pelosi and most of the rest of the current and former members of Congress who have sold their souls, their votes and their offices to corporate PACs and billionaire donors, while pandering to their constituents.

Earlier this month, former House Speaker John Boehner said, “There is no Republican Party. There’s a Trump Party.”

Nobody, especially the 16 Republicans who sought the GOP nomination in 2016, took Trump seriously when he announced that he was running. But Trump demolished them all because he knew what they didn’t — that Republican voters were done with the same old, same old.

Regardless of what you think of Trump, his decapitation of the GOP establishment is one of the necessary steps to a new order. The Republicans who will survive this November will largely be Trump sycophants. Those who are not running or will lose will mainly be moderate Republicans. Trump’s purge will inevitably set the stage for the implosion of the GOP as a governing party. That’s a fate they will have earned and deserved.

Although it’s not yet as obvious, the same fate awaits the Democrats. The old order is corrupt and unconnected to much of the party’s rank and file. Bernie Sanders’ insurgency and Trump’s victory in 2016 proved that.

If in 2020 the Democrats fail to face reality and turn to another nominee who is beholden to Democrats’ addiction to identity politics and reverse racism, they, too, will find themselves on the trash heap of history. Maybe they won’t. Maybe they will turn to a candidate like John Delaney who thinks the question that counts is how to bring the country back together.

Whether the inevitable firestorm occurs in 2020 or 2024 is unclear. But come it will.

Maybe Trump is accomplishing something urgently necessary, whether intended or not. The American political system is dangerously constipated. Trump’s legacy may be that he is the laxative at our time of national need.

To that end, I’m accumulating shares of Kimberly-Clark stock in anticipation of the spike in sales of Scott and Kleenex toilet tissue. America needs a clean sweep.

LeRoy Goldman is a Flat Rock resident. Reach him at tks12no12@gmail.com.

Trump goes to the mattresses

Trump goes to the mattresses

By:

LeRoy Goldman

Columnist

BlueRidgeNow 

Times-News Online

May 20, 2018

No, this isn’t about Stephanie Clifford, aka porn film star Stormy Daniels, or Karen McDougal, the former Playmate model, each of whom claims she had an extramarital affair with Donald Trump.

It’s about the warfare that crime families engage in that is so vividly described in Mario Puzo’s novel “The Godfather,” which was brought to the screen in the ’70s by Frances Ford Coppola. And it’s about how the lessons of that sort of warfare apply in Washington today.

“The Godfather” teaches us that we need to know about “going to the mattresses.” It’s what criminal gangs do when war erupts among them. They retreat to safe houses, usually seedy apartments, that can accommodate 15 to 20 gang members who sleep in shifts on mattresses on the floor while others stand guard in the event their lair is discovered. There they wait until the order comes for them to strike at the rival gang.

Such a war was triggered when Virgil Sollozzo gunned down the Godfather, Don Vito Corleone. In retribution, Vito’s son, Michael, murders Sollozzo and his bodyguard, one of New York’s “finest,” NYPD Capt. Mark McCluskey. That ignited a five-gang bloodbath.

Such gangland carnage is brutal, unforgiving and most importantly pointless. Pointless because these gangs control their own territory, are immensely wealthy and have well-established tentacles that enable them to corrupt too many politicians, police, prosecutors and the press. Yet they cannot resist the temptation to poach on the territory of rival gangs. What fuels that death wish is a combination of fear and greed they cannot control.

And there’s the rub. The alluring power of fear and greed as the principal motivators of so much destructive human behavior isn’t unique to criminals. It’s alive in well in most of us, and now it’s largely responsible for the corruption in and paralysis of our political system.

President Trump has gone to the mattresses!

Whether one likes it or not, and none of us should, the Trump administration, its allies on Capitol Hill and most importantly Trump’s ardent and unquestioning supporters across the nation have been forced to turn away from a governing agenda so they can concentrate their full efforts on protecting Trump from the long arm of the law and the possibility of impeachment proceedings in Congress.

The president’s strategy is becoming clearer every day. The game of musical chairs among his lawyers with the departure of John Dowd and Ty Cobb, who attempted to work cooperatively with special counsel Robert Mueller, and the arrival of Rudy Giuliani and Emmet Flood makes it evident that Trump will not agree to be interviewed by Mueller even though he or his lawyers may say just the opposite.

Should Mueller attempt to subpoena the president, it’s likely that Trump would successfully ignore the subpoena. In fact, Trump’s real agenda is to continue his relentless effort to discredit Mueller and his investigation. He’s already called it a witch hunt, and that’s just the beginning.

Trump’s real agenda is political, not legal. His intention is that his onslaught against Mueller will bring enough of his supporters to the polls this November to keep Republicans in control of Congress.

Trump knows a U.S. House under Democratic rule will be a House that will use its subpoena power to pursue multiple investigations into him and his administration, and may also begin impeachment proceedings.

In case you haven’t noticed, Washington has ground to a halt in terms of governing the nation. It’s so bad that neither the Democrats nor the Republicans take the time to even pretend they are doing their jobs.

Washington has descended into the theater of the absurd. The Democrats are headed into the fall election without having crafted a message that can broaden their appeal and resonate with voters. Instead, they have taken the easy way out and placed their bet on enough voter opposition to Trump and the Republicans to give them a working majority in at least the House, if not the Senate, this November.

Trump, on the other hand, is directing (not masterminding) a gang war against fellow Republicans — Mueller, Deputy Attorney General Rod Rosenstein, FBI Director Christopher Wray, Attorney General Jeff Sessions, former FBI Directory James Comey and others. Senate GOP Leader Mitch McConnell is the least popular member of Congress, and House Speaker Paul Ryan can’t get back to Wisconsin quickly enough.

The White House’s Lincoln Bedroom (no seedy apartment) is strewn with mattresses for the Don’s family and soldiers. Consigliere Giuliani has put out a call for Peter Clemenza to come and show them how to make the spaghetti sauce, as he did for Michael Corleone.

Not even Mario Puzo could have imagined and penned a tale as disgustingly bizarre as this!

Times-News columnist LeRoy Goldman is a Flat Rock resident. Reach him at tks12no12@gmail.com.

“WITH ALL DELIBERATE SPEED” STINKS

 

“WITH ALL DELIBERATE SPEED” STINKS

By:

LeRoy Goldman

Columnist

TimesNewsOnline

April 15, 2018

 

The United States Supreme Court did not cover itself in glory when in 1896 it ruled 7-1 in Plessy v. Ferguson that “separate but equal” segregated public facilities did not violate the Equal Protection Clause of the Constitution's 14^th amendment. It took the High Court 58 years to begin the process of reversing the stain of Plessy.

In 1954 the Warren Court in a unanimous decision ruled in Brown v. Board of Education that separate educational facilities are inherently unequal. It appeared separate but equal, was dead. But it wasn't.

The Court delayed in ordering the states to enforce its decision in Brown. When it did it instructed lower Federal courts to “enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases”.

Thurgood Marshall, who had represented Brown and argued the case before the Supreme Court, stated that the Court's use of the language “with all deliberate speed” meant, “S-L-O-W”. He was right.

The High Court should be ashamed of its use of “with all deliberate speed” to undercut its decision in Brown. But the Supremes have a penchant for finding ways to slow-walk both their decisions and the remedies that flow from them. And that brings us to the Court's current consideration of three cases involving partisan gerrymandering.

The High Court's glacial approach to finding and implementing a remedy for racial segregation in public education has a parallel in respect of its tortured consideration of partisan gerrymandering. For a very long time the High Court viewed partisan gerrymandering as something that it should not and could not address. That changed in 1962 with the Court's landmark decision in Baker v. Carr. In that case the Court ruled, 6-2, that congressional districts of unequal size were an unconstitutional violation of the Equal Protection Clause of the 14^th amendment. Writing for the majority, Justice William Brennan concluded that redistricting case raised justiciable issues. By 1964 the Court had ruled that congressional and state legislative districts had to be approximately equal in size.

However, over the ensuing half century the Courts have been reluctant to grapple with the much more vexing problem of the drawing of district lines such that only one party has any real opportunity to win. The Court's reluctance to come to grips with this problem has permitted both parties to use partisan gerrymandering to turn democracy on its head.

There is no doubt that gerrymandering has enabled members of Congress to select who gets to vote for them, rather than the other way around. Instead of us picking the Congressman we want. Elected officials now pick they voters they want. That's election rigging.

The last time the Court confronted this issue in 2004 it was bitterly divided and, not surprisingly, punted. Justice Kennedy was the swing vote in the decision to not step into the case from Pennsylvania, but he did say the Court might intervene in subsequent cases of partisan gerrymandering. Think of that as more “with all deliberate speed”.

Now the Court is considering three cases of partisan gerrymandering from North Carolina, Wisconsin, and Maryland. The first two are examples of GOP election rigging. The Maryland case is one where the Democrats have run amok. By June we'll know if the Court is finally willing to rein in partisan gerrymandering or if they will punt again.

But, even if they curtail partisan gerrymandering, their work will be incomplete. That's because none of these cases presents the opportunity for them to deal with the equally vexing and related problem of racial gerrymandering.

According to Ballotpedia there are 122 Majority-Minority congressional districts. These are districts that have a majority of African-Americans or Hispanics in order to guarantee their election. However, packing minorities into these districts has enabled the Republicans to win many other districts that would have otherwise been competitive in the absence of the Majority-Minority districts.

In the 1990s the Court decided three cases from North Carolina that challenged the constitutionality of these racially contrived districts as racial gerrymanders. Unfortunately In the final case, Easley v. Cromartie, the Court ruled 5-4 against the challenge when then Justice Sandra Day O'Connor switched her vote after having previously said, “a reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries...bears an uncomfortable resemblance to political apartheid”.

A new case successfully challenging the constitutionality of Majority-Minority districts is urgently necessary because the best way to curtail unconstitutional partisan gerrymandering is to simultaneously curtail unconstitutional racial gerrymandering. Racial minorities no longer need racial super majorities to win. Think Obama.

The Supreme's addiction to the slow motion of “with all deliberate speed” leads them to believe it shields them. What it really does is undermine public trust in the Supreme Court. That is especially dangerous in today's hyper-polarized political climate.

Happily, not all Supremes bow to dilatory tactics. My favorites are Diana Ross, Florence Ballard, and Mary Wilson.

Times-News columnist LeRoy Goldman is a Flat Rock resident. Reach him at tks12no12@gmail.com.