Thoughts on the Balance of the Supreme Court.

It’s important to note that most decisions by the court will probably still be unanimous or joined by liberals and conservatives alike. The contentious cases are typically only a handful or fewer per annum. But those cases are the ones with the biggest risks for all concerned.

Right now the court looks not so much 3-6 (because of the left-right axis of the court, its balanced will be listed left-to-right), but 3-1-5. At the moment Chief Justice Roberts looks more poised to be a moderate that is not fully aligned with the rest of the conservatives.

If the five right-fielders stick together, it will be their court for good or ill. That’s math. But on some cases, some issues, at least one of the five won’t want the same result. Those cases will be the ones that shape the court and the politics of the judiciary, not the ones where all five decide to plow under the crops of American law.

It is those cases where Justice Gorsuch or Justice Kavanaugh split that will matter most, in two ways. First, whether the chief justice plugs the hole in those instances, and if not, how much leverage the liberals have in shaping the opinion of their occasional majority.

The dynamics of having Roberts and one of the five join the liberals are unpredictable in terms of leverage. Roberts might be able to seek moderate opinions, depending on how greedy the five get in their majority cases. But the moderate-left members of the court, with fewer opportunities to balance the scales of justice, may actually have more leverage in those rare cases.

But the court may not prove to be 3-1-5. It could be 3-6, but that seems less likely as Roberts isn’t just trying to be a moderating voice, but is largely just that. More likely than 3-6, but perhaps less than 3-1-5 are the 3-2-4 or even 3-1-2-3 or 3-1-3-2 courts. These represent a clearer spectrum that might develop, as the prism of cases separates out the conservatives into their truer colors.

Already we have seen the likes of Justice Alito and Justice Thomas being boldly sectional in their rhetoric, and it seems likely that at least one more will slip into their bed, but perhaps not two or three. The power position would be to join Roberts in the middle, but it’s not clear that any of the five are candidates for that.

So, in terms of ranking, the likeliest to least seem to be:

  1. 3-1-5
  2. 3-1-2-3
  3. 3-2-4
  4. 3-1-3-2
  5. 3-6

The fourth possibility is interesting, for what it represents in terms of outcomes. In it, the three judges seated during this administration would be a bloc unto themselves, not agreeing to go as far as the Hun bloc in trying to tattoo Lady Liberty with a Federalist Society tramp-stamp, but trying to find some right-of-Roberts ground. They would need to either pull in Roberts and a Hun or else pull in both Huns or Roberts and a liberal.

But it will take at least a few terms to see where things lead. In the meantime, the inauguration is in seven-ish weeks.


More Thoughts on Doug Jones’ 2020 Election Loss.

House Races.

In 2020 only four of the seven House seats in Alabama had a contest; the other three were unopposed (including the lone Democratic seat). Doug Jones would have done at least marginally better had the other two seats had Democratic candidates.

The math is simple: even if you only draw a few more Democrats out by having a House candidate to vote for, that’s still a few more people who can vote for you for Senate. This is especially true because of hardcore gerrymandering of Alabama House seats: the single Democratic seat was already going to turn out for Doug Jones, but in the suburbs and exurbs where they’re separated into these other districts? It’s marginal, but having someone on the ballot matters.

There’s also the experimental and experiential aspects; running some candidate who won’t win gives you a chance to maintain some idea of how the district actually performs. You can throw a few ideas at a district, see what happens. Have a candidate that only reads fortune cookies, something. Who knows what’ll happen.

Which is the other piece. The running candidate could have a major scandal, could die, whatever. Having someone running against them gives some chance to have a sudden shift net a seat.

Finally, having a candidate with at least minimal funding would have given Jones a surrogate in the area to be accessible to media. One more voice cheering for the team couldn’t hurt, could it?

Lack of a Primary.

Jones ran unopposed for the nomination. Had there been a primary, there’s some small risk he would have lost it, and even if he didn’t, there’d be some resources spent. But having him butt heads with a fellow Democrat could actually have been a positive. Depending on challengers, it would have given a chance to define himself and how he differed from other Alabama Democrats.

That last part is key: if state Democratic voters picked Jones over a more liberal candidate, it could be taken as a signal to moderates that Jones isn’t some pinko and should be given a better look. Brains like contrasts, and party primaries are one way to add some shading to who candidates are and aren’t.

Going back to ways to experiment and gain experience, it would have offered some ways to test messaging and strategy before moving into the general election. The fuss over the Republicans picking a candidate generated some energy on their side. Alabama voters love competition and drama, one supposes.

In general, Democrats in the House and Senate should welcome primaries. None of this blacklist-firms-who-help-primary. They are great chances to develop talent, check the engine’s running right, and increase interest in the elections. There are risks, spending too much on them, having the race get away from you by having someone that doesn’t fit the general electorate. But done right, they are useful, and there’s always the fact that it’s the right fucking thing to do. It’s the democratic thing.

Donald John Trump on the Ballot and the Map.

It was always going to be tough to pull off, with so many Alabamians itching to fill an oval for their favorite president. Hell, in 2017 Senator Jones only barely pulled it off, some 20 000 votes. Even without the top of the ticket, it might still have been a crush out of the embarrassment Alabama Republicans felt at letting one slip away from them. But if you compare the 2020 map and the 2017 map, it tells the tale.

First, the Black Belt. It spread north and south in 2017, and it contracted in 2020. Alabama Democrats gotta know that there’s a lot of opportunity in that area. That’s half their future, right there. Build on it. Fund it.

Second, Mobile and Huntsville (and to a lesser extent the college towns). Their counties, Mobile County and Madison County, they gotta be blue. Same reason as the Black Belt: there’s enough Democratic voters there, that you can make a push to spread that notion in those areas.

The how of spreading is harder. Senator Richard Shelby is trying to build a second FBI in Huntsville, which is earning him support.

Every election reveals more to us about who our fellow voters are and aren’t. But extrapolating the choices they make to who they are, deep down, is often a mistake. Walk through a company’s staff parking, see the cars the people drive, you can learn something about them. But you can’t touch their souls. There’s no Sherlock-Holmes-method to extrapolate too deep from limited data. Still, we do learn something.

The inauguration of President-elect Biden and Vice-president-elect Harris is in eight weeks.


More 2020 Campaigning Thoughts.

The Stickiness of Gut Messaging.

One of the factors that should push toward more gut messaging by Democrats is that it can be incredibly sticky. Words like socialism, said with spittle flying, can ring in the ears of voters who don’t even realize it. That’s the kind of demonization that primed voters to let partisan media and mainstream media alike drag down Hillary Clinton.

One of the mainstay sticky messages that Republicans use is the small-government shtick. The beauty of calling to cut regulations, to shrink government, is that most of the government ire is actually directed at state and local government, which federal legislators will almost never have an effect on. The result? The ire stays, maintaining the rhetorical advantage for Republicans who do nothing to fix the problem. (Honestly, they can’t because most regulations exist for good reasons and they aren’t invested in improving regulations, only bitching about them. At the federal level, the erosion of regulations typically results in bad things. (To be fair, there are many stupid regulations, some which are examples of overregulation, but most of which are merely misregulation—regulations that target the symptom not the cause.))

One gut-message that Democrats do use is pre-existing conditions. It appeals to fairness and right over wrong. While some conservatives might argue that some of those conditions are the fault of the individual (and some may well be), the politicians have a harder time doing that because some of their own voters (or family members of voters, whom the voters love) have those very conditions.

In pushing for broader health coverage, the Democrats should build on that basic idea of fairness. They can also seek a message to underscore the economic benefits. It’s a heck of a lot easier to start a small business if you aren’t worried about getting sick. “Healthcare builds jobs,” or such.

One famous misfire from this cycle is the “defund the police” message, mostly from activists rather than politicians. Polling shows the goal of that message—routing more funding (again, mostly local) toward alternatives to policing where it makes damn good sense—is actually popular. But the message itself is seen as attacking the perfectly innocent bunny-snuggling police officers. Meanies!

The Guilt-by-Association Pivot.

Democrats need to get better at saying they don’t agree with anyone on everything, they’re all their own person. Many a Republican pulled that move off with no one more than Donald John Trump as the object of derision. There are a few steps here:

  1. It’s up to the voters to choose. That’s not your race, that’s not your district. Even about an opposing candidate, you can state where you disagree and why, but ultimately it’s up to those voters to decide. Maybe their voters don’t love you. Point that out. Different places have different tastes, right?
  2. You’re willing to work with them on matters of agreement? No. You’ll be glad to have their votes on your voters’ issues. Hug the issues. They’re your babies. If someone wants to help, you’ll accept their support of your issues. If you can point to past examples, with the derided candidate or anyone, even better.

The harder pivot is those activists mentioned earlier. Smart policies can be poorly branded by activists, and it can be a challenge to both support a good policy while rejecting tone-deaf rhetoric and slogans, especially without sounding condescending (“The activists hearts are in the right place.”) or soft on riots.

The best pivot is to talk about how broken policing is for the police. These workers need better working conditions. It’s a labor problem: the manner of their labor is unreasonable. The basis of their labor is too spread out, with too many competing requirements. While we can’t make policing perfectly safe, there are major improvements to be had. We should always strive to improve working conditions, particularly for high-risk professions.

(Maybe) Be a Little Bit of a Jerk.

This is one that mostly Republicans practice (or is it practice; perhaps it comes naturally to their kind). Some Democrats do. Governor Cuomo up in New York seems to do it with ease, for example. The occasional dickishness really resonates with certain voters (whom I assume are not dicks themselves, but they’re just having a really long string of bad days).

Chris Christie liked to be a jerk a lot when he was governor up in New Jersey. Worked for him. But what kind of jerk to be matters. It has to fit the politician’s personality. Christies was more of a loudmouth jerk, where Cuomo tends to be more of a wiseguy. There are subtle differences between a loudmouth and a wiseguy, mostly that the latter has more wit to the sting, where the loudmouth has more bark.

It doesn’t work in all contexts, or for all audiences. A few years back Senator Feinstein was a dick to some kids who want something done about climate change, and it didn’t go well, at least with most people. (Wow, it was only February of last year; guess time really is screwed up!) Whether it was a successful dick move, overall, is unknown to me. Perhaps it resonated with the get-off-my-increasingly-brown-from-climate-exacerbated-drought-lawn crowd.

The Republicans are very successful in spite of their pretty poor policy showing. Democrats need to study this. Democrats need to find ways to reduce the Republican effectiveness, either by disarming these sorts of methods or by adopting them in ways that make sense for otherwise-policy-focused campaigns.

More importantly, by studying what works for Republicans, we learn something about why people vote for them. That can be used to design better policies that do reach those voters, which is good for everyone.


The 2020 Senatorial Race in Alabama.

Alabama did not want a serious senator who would bring good things to the state and the nation. That’s the solid conclusion of the 2020 senatorial race in Alabama. But let’s talk about why.


Donald John Trump would never have been nominated in 2016, much less elected, without finding a way to improve his stature, to make him seem like a real candidate. His first trick was to be a big asshole in announcing his run. That got enough attention to get his polls to a place he could get in the early debates. Then, standing next to prominent Republican senators, he bullied them, which further inflated his stature to the point he polled better and could start winning primaries. The media kept its eyes trained on him like he was a rabid unicorn, which kept him nice and plump all the way to the nomination, and once nominated his stature was fully established as a Republican-approved candidate to be the actual president.

Jones entered the special election with strong stature of his own, as did Roy Moore. But Moore got badly damaged, not by being the arrogant tool of the devil that he acts like, but because of national reporting on decades-old creepy behavior. Between that and the Black vote, Jones won that election (or, perhaps, Moore lost it).

Normally, incumbency is a strong part of stature. But Alabama loves college football in a way that could only be called a fetish. Tuberville was never a serious candidate, but he had the fetishized stature to get the nomination in a runoff, and too few Alabamians care about reasonable government, so that stature alone was enough to make him the senator.

The main takeaway here is that if you’re running for an office, you have to find some way to gain sufficient stature. Debates are a great way to do that, but Alabama Republicans are well-known for ducking debates, because they don’t want to lose or give a Democrat any profile.

Messaging matters, not so much the message.

Tuberville has no real agenda, just like Donald John Trump. The message doesn’t matter. Most voters aren’t listening anyway.

Up in Maine, Senator Collins ran an add against Sarah Gideon with the basic message that Gideon had all these priorities. It got a broadened run as Democrats made fun of it for highlighting Gideon’s positively-polling positions. I think the message had nothing to do with a tangle of number-one-priorities, but it was all about saying: “Sarah Gideon wants to make all these fucking changes, Maine. Are you ready for all these fucking changes?” In other words, the gut-level of the ad wasn’t anything about any of the issues. It was a how-dare-she for having ideas, for having a platform.

There’s a squint-test in graphics design. You squint your eyes so you can’t really see the content, just the contrast of white-space to text or graphics. You want to see a nice balance there. The folks doing ads for the Democrats need to do their own squint-tests with their ads. Fuck the message, make sure the sound and shape of the thing appeals to the gut of the people you’re trying to reach.

Even something as simple as Jones’ ads ending with him indoors saying he approved the ad—he should have been in some kind of outdoor shot, maybe standing in the middle of a rural highway—missed the signal. (Likely done that way to seem relatable re: COVID-19 stay-at-home, too few Alabamians care about protecting their state from a novel and potentially-deadly virus, so it didn’t really hit as maybe it should have.) Dumb shit plays with a lot of people (and not just in the south). If Jones had done one of those stunt-ads (blow up a tree stump, slap handcuffs on someone in a non-sexual context, or even cook a steak on a grill), it would have boosted him with the folks who went with Tuberville. Most liberals would have shrugged or maybe laughed without it affecting their vote.

Republicans don’t care about policy. They care about the emotion of the message. “Democrats are gonna try to stop robocalls from bugging you all the time” is an effective Republican message, because it says the Democrats will deprive you of something, even something you hate.

Liberals mostly don’t care about that hokey bullshit. As long as the policy is there and thoughtful, you’ll get their votes.

If Democrats ran a message “Republicans are blocking changing the borders of Florida to make it look like an AR-15” the voters would eat it up down there. Boom, six more Democratic senators, three new states, and a reconfigured Florida that looks like a gun, plus three states that look like the mud that rifle was dropped in. (In all probability, envy would then spark several other southern states to split up so they could shape themselves into firearms, cannons, trebuchets, whatever. And in a generation we’d have to teach kids why the map looks like a homicidal six-year-old drew it.)

Upton Sinclair was right: hit them in the gut.

The policy obviously doesn’t matter, because Tuberville doesn’t have policy. Donald John Trump hasn’t policy. For a large group of people, the policy is not even secondary to the tone and package. It just doesn’t factor in for them. They’ll buy a dump in a box marked guaranteed over a quality product.

(Wherein I was going to throw a few bones about the future, but the present is still not officially called, so skipping to the end.

I will say of the presidential race, it was either the-economy-stupid, or it was nearly the-economy-stupid. While other factors like racism and deal-with-devil-Republicans (no gun laws, anti-abortion, anti-taxes, etc.) were certainly factors, I don’t think it’s as close as it is (was) without a strong recovery. The flip-side is that most incumbents would have taken this race handily.)

Started working on a new book. Hum.


The Sieving Process in the Press and the SCOTUS.

Merry Halloween.

In thinking recently about the SCOTUS, there are several extra levels of decision making available to them:

  1. they cases they consider taking
  2. the cases they take
  3. the issues they allow argument on in those cases
  4. the issues they decide in issuing opinions
  5. the breadth of their rulings on those issues

These several levels are filters. They can occur both in their normal caseload and in the shadow docket. There is no originalist philosophy or textual basis for them. These decisions are largely unreported and the court is mostly unaccountable for them.

And over in the press:

  1. the stories they consider covering
  2. the stories they cover
  3. the issues they research in that coverage
  4. the issues they actually publish in the coverage
  5. the breadth or specificity of that coverage

There are other types of judgment relevant to both, including errors, relied upon from their sources but overlooked, or introduced by the press or the SCOTUS. These errors include factual errors and errors of interpretation. For example, an originalist jurist might be relying on a faulty understanding of the law circa the 18th century. Baking an error into our law because of some long-dead person’s error seems to be exactly contrary to the claimed aim of that philosophy: to be consistent with the actual meaning of the law as enacted. Similarly, if the press finds a flaw in their reporting, it may be uncorrectable if they no longer have access to the source to seek clarification.

But this sieving process is just as activist (for SCOTUS) and just as biased (for the press) as the actual decision making processes that they try to dress up in fancy clothes and teach to speak well. We usually hear the complaints from fringe media, whether on the right wing (e.g., that there isn’t enough mainstream coverage of campus censorship or immigrant-perpetrated crime) or environmentalists (e.g., there are major polluted areas that get overlooked, to the devastation of health of typically minority communities) or immigrants (e.g., there isn’t enough mainstream coverage of immigrant-victim crimes, including by corporate-perpetrators (like federal contractors)).

The sifting isn’t bad or good, per se. It is necessary in both cases, due to the complex social, political, and business environments that the press and SCOTUS operate within. But the processes deserve recognition for what they are, and if we can develop formal frameworks to judge their efficacy, we should. (One way it is bad: inconsistency. Pitches for fluff get greenlighted when from a useful source and squished by anyone else, just as serious pitches get killed when about or damaging or frowned upon by the powerful, but are snatched up otherwise.)

Transparency is an issue as well. We know what cases SCOTUS rejects, but unless a scandal results (e.g., the failure to report on Harvey Weinstein by NBC) we typically do not know when a story was killed (much less the stories that were nixed as pitches).

Finally, the courts and their decisions receive coverage by the press, which leads to certain decisions by courts on how to frame their decisions in order to influence how their decisions are covered by the press. In that aspect, there is no division or difference between courts and the press. In that limited behavior they are identical in action, though not in tone or substance, having different goals in propagandizing.

Anyway, election’s Tuesday. Do vote.