WHAT’S REALLY GOING HERE?

AS EARTH TILTS: (I) RFK JR. DEFINES THE VP JOB DOWN, UPENDS NASTY '24 RACE. (II) SUPREME COURT LIKELY TO OK ABORTION PILL MAILING, BUT TWO JUSTICES PITCH A STALE 1873 LAW TO IMPOSE A NATIONAL BAN.

This Newsletter is being published in two Parts: Part I today and Part II tomorrow.

A long-serving dean of students at a medium-sized university told me long ago that the most frequent outbreaks of undergraduate “crazy-time” on campus usually happened in the month or so surrounding either the vernal or autumnal equinox -- as if our globe’s barely perceptible semiannual shifts around its axis somehow triggered bursts of unbalanced behavior among its human inhabitants. The original meaning of “spring fever” -- referring to an actual nineteenth-century disease that triggered feelings of malaise, fatigue, easy bruising, poor healing, and irritability -- conjures up the same topsy-turvy imagery. Next we’re going to follow up the annoying March time change with a full-on solar eclipse.

Consider how many times lately we hear of folks ascribing their negative feelings to a looming sense that too many things are “spinning out of control,” all at the same time: and not because of the usual suspects like mass demonstrations or downtowns burning. Rather, we are virtually experiencing -- in vivid details streamed unfiltered to our smart phones -- the terrorist atrocities in Israel; cluster bombs, operating room combat, and human-made famine in Gaza; airplanes suddenly losing their altitude or their fake doors during flight; nuclear plant roulette in Ukraine; Texas (which used to be part of Mexico) sends its police forces to override federal immigration power and force legal asylum seekers back to Mexico (can we give Texas back?);  a massive container ship suddenly loses power in the wee hours, taking down a massive bridge and damming-up a major U. S. seaport with one blow. The wake of these diverse temblors is spilling over to convulse our remaining confidence in the social and political and social stability of our country and its role in the world at large.  

PART I: SPRING CRAZY TIME BREAKS OUT IN THE PRESIDENTIAL RACE.

It should be no surprise that central elements of the current political climate play right into the mix of what could be called the public’s “event vertigo.” The culture war has all but gone nuclear. Conservative politicians especially in the MAGA cult have jumped at the chance to blame the airplane breakdowns and bridge disaster on “woke” diversity, equity, and inclusion hiring at Boeing, United Airlines, and even by the citizens of Baltimore, Maryland, who had the temerity to elect a Black mayor and governor without the alleged benefit of a DEI program. https://news.yahoo.com/conservatives-blaming-racist-theory-airline-205339819.html; https://www.forbes.com/sites/janicegassam/2024/03/27/baltimore-bridge-collapse-blamed-on-dei-as-the-attack-on-dei-continues/?sh=e9037873d1fd The same anti-DEI forces made  similar charges around last year’s vernal equinox when Silicon Valley Bank collapsed virtually overnight and rattled the financial system for several weeks. https://www.nytimes.com/2023/03/15/us/politics/silicon-valley-bank-collapse-woke-fact-check.html

There is a pattern here, coinciding with the springtime global tilt but clearly a result of human activity, like the climate change emanations making even frequent flyers  The leader of that MAGA cult spent Easter promoting his newly-endorsed, deluxe edition of the Holy Bible, at a price that would have gotten him kicked out of the Temple courtyard with the money changers by the same Jesus he claims he now resembles as a victim of unjust prosecution. https://au.news.yahoo.com/trump-compares-himself-jesus-christ-141113026.html  The 2024 presidential campaign as a whole is producing a mix of unprecedented and disturbing circumstances that are increasing public anxiety and decreasing citizen’s confidence the democracy. One in five Americans in multiple polls think violence may be necessary to straighten things out before it’s too late. Speaking of late, the three candidates with consistent double-digit support in polls of registered voters sport an average age of 78! The average age of all Presidents when first taking office is twenty-one years younger than that. https://www.statista.com/statistics/1035542/age-incumbent-us-presidents-first-taking-office/

The incumbent President Joe Biden has not enjoyed positive approval ratings since American forces left Afghanistan in chaos (under an arrangement with the Taliban put in place by his predecessor), despite  record-setting stock market performance, a historically  low  unemployment rate, and record job creation that for too many families being offset by post-Covid inflation in groceries, housing, and services that their commercial providers are working to keep in place as long as possible.  Meanwhile, his predecessor in office, Donald Trump, is running for deferred reelection based fundamentally on a blatantly nativist demonization of migrants who are legally crossing the border to seek asylum under current U. S. law, calling them out as animals and accusing immigrants of color as “poisoning the blood” of Americans. These flirtations with white supremacy are nothing new in the history of American politics and characterized more than one post-Civil war presidential campaign. (Another nineteenth century legacy called the Comstock Act will also play a role in the 2024 election as shall see in Part II  below.)

Trump is conducting a photo-op courtroom campaign while under multiple federal criminal indictments threatening a felony conviction before the November election. His lawyers are pulling out every delaying tactic in the playbook to put off indefinitely, while the candidate uses various courthouse appearances as platforms to claim that the Democratic deep state is making him a victim like Jesus. But he also bracketed his Holy Week for-profit Bible videos with another, far less Christian, live-action reel on his social media platform featuring a doctored image of Biden hog-tied on the back of supporter’s pick-up truck -- in the rotisserie position, no less. Federal law makes it a crime to threatens to kill, kidnap, or inflict bodily harm on the President.

“18 U.S. Code § 871 - Threats against President and successors to the Presidency

(a)Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of thefamilies  United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both. (Emphasis supplied.)

Trump goes right up to that line. The pick-up truck poster literally celebrates a presidential kidnapping, complete with bodily harm. Trump, while sharing this symbol with his millions of social media followers, is very careful not to literally threaten such an action himself. Indeed, on January 6, he left that sort of call to his supporters, who obliged by threatening Vice President Pence with hanging during in the Capitol.  As a result of their various violent activities, many of them have been jailed.  (Trump has promised to pardon them if elected President again.) 

The third-place 2024 presidential candidate, Robert F. Kennedy, Jr., has achieved polling in double digit even though he is at this point only on the ballot in a few states. https://www.politico.com/newsletters/politico-nightly/2024/03/21/rfk-jr-and-the-ballot-access-wars-00148478) RFK Jr. has openly acknowledged that he is running as a “spoiler” of the campaigns of both Trump and Biden. “‘Our campaign is a spoiler. I agree with that,’ Kennedy said. ‘It’s a spoiler for President Biden and for President Trump. It’s a spoiler for the war machine. It’s a spoiler for Wall Street and Big Ag and Big Telecom and Big Pharma and corporate-owned media ....’” https://www.nbcnews.com/politics/2024-election/rfk-jr-intends-name-attorney-nicole-shanahan-vp-pick-rcna144983

Those who knew RFK know RFK Jr. is no RFK.  He evokes the name, political legacy and campaign commercials of his assassinated uncle and father while blatantly disowning their core values.

“For decades, the Kennedy name was synonymous with a mainstream strain of civic optimism that preached public service and a beneficent government. It enthralled aspiring Democratic politicians like California Governor and avowed Kennedy admirer Gavin Newsom. But that was a different era, when a different kind of Kennedy could be seen running for the highest office in the land — and when more Americans had faith in their government. Today, RFK Jr.’s supporters tend to place a corrupt government at the root of America’s ills. They ask not what their government can do for them but what it has done to them.” (Emphasis in original.) https://www.politico.com/news/magazine/2024/03/28/forget-kennedy-democrats-here-comes-the-2024-kennedy-voter-00149427

Nothing makes clear that the RFK Jr. campaign is focused more on grievance than governance than his decision announced on March 27 to select one of his campaign’s top financiers as his running mate. Nicole Shanahan’s background as a very wealthy Silicon Valley tech lawyer and entrepreneur shows negligible evidence that she would be prepared, as all vice presidents must be, to assume the office of president on a moment’s notice under definitionally grave circumstances. There is no more serious criterion for a VP nominee. Vice President Harris and Pence clearly cleared that hurdle based on the quality and relevance of experience and knowledge of government functions, as did Joe Biden, Dick Cheney Al Gore, and all the others who have served in that office during our lifetimes. Yet nothing has yet emerged from the RFK Jr. campaign or the extensive media coverage of the biography and professional background of Nicole Shanahan to suggest she is so prepared.

Shanahan shares Kennedy’s vaccine aversion and his related focus on the theory that child vaccines cause autism. On other public policy issues, Shanahan is best known for her opposition to current commercial practices in the field of In Vitro Fertilization (IVF) and her philanthropic support for research into extending child-bearing capacities into middle age.

“‘I try to imagine where we would be as a field if all of the money that has been invested in IVF, and all of the money that’s been invested into marketing IVF, and all of the government money that has been invested in subsidizing IVF, if just 10 percent of that went into reproductive longevity research and fundamental research, where we would be today,’ Shanahan said in a webinar hosted by the Buck Institute in 2021.”  https://www.politico.com/news/2024/03/28/robert-f-kennedy-vice-president-nicole-shanahan-ivf-00149523?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=00000161-872c-d36f-a367-87ffc9150000&nlid=964328

Whatever their merits, none of the issue engagements that have attracted Shanahan’s personal and financial focus constitute significant preparation for the vice presidency, let alone an emergency presidency. Shanahan is reportedly intelligent, articulate, passionate, generous, and sincere – a serious person in her own right.  Her selection as RFK Jr.’s running mate, however, is not evidence of a serious campaign to win RFK Jr. the Oval Office. Rather, it reflects his serious and urgent need of money to finance the task of getting the required voter signatures and other support to qualify for the ballot in as many states as possible before it’s too late.  https://www.nytimes.com/2024/04/04/opinion/rfk-movement-trump.html

Kennedy’s lack of seriousness about actually winning and governing is further evident in the fact that both Kennedy and Shanahan reside in the same state. “‘[S]ince Kennedy and Shanahan are both California residents, they will now be unable to accept California’s 54 electoral college votes should they win the state in November unless one of them moves his or her residency to another state, according to the Constitution’s 12th Amendment.” https://www.politico.com/news/2024/03/26/robert-kennedy-nicole-shanahan-running-mate-00149150

For example, the situation would be similar if, as some commentators have mentioned as a possibility, Trump were to choose either Florida’s Senator Marco Rubio or Congressman Byron Donalds of the State’s Nineteenth District as his running mate. One person would have to relocate his voting registration and other aspects of residency out of that State to prevent the automatic loss of Florida’s Electoral votes –- anathema for any GOP presidential candidate in an election that could be as close as Bush versus Gore in 2000.  Would a sitting member of Congress from Florida give up voting residence there to be a VP nominee? Would Trump give up Mar-a-Lago for Bedminster, New Jersey?  Maybe. It is remarkable, however, how some pundits don’t check in more often with Constitution.

“Article II states: ‘The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves.’ …In most elections, this quirk in the system wouldn’t even matter. In 2008, Barack Obama could have chosen a running mate from his home state of Illinois in either 2008 or 2012 with no adverse effect…. But if an election turns out to be particularly close, the rule could potentially come into play.  The Bush-Cheney ticket ended up winning with 271 electoral votes—just a slim five-vote margin—over Al Gore and Joe Lieberman, a total they certainly wouldn’t have hit without Texas’ 32 votes.” https://www.history.com/news/can-the-president-and-vice-president-be-from-the-same-state

The Kennedy-Shanahan ticket is not really playing for California’s Electoral votes. To paraphrase Logan Roy’s smack-down of his own offspring in the popular streaming series Succession, RFK Jr. is not a serious candidate for the presidency. He is, however, a destabilizing and dangerous candidate in terms of our electoral process. RFK Jr. embraces the spoiler role that is attracting an otherwise mercurial voter “base” from across the left-right political spectrum. He “has found an opening amid Trump’s and Biden’s unpopularity, attracting Sanders liberals, DeSantis conservatives and voters in between who are dissatisfied with another matchup between the two presumptive nominees.” https://www.washingtonpost.com/politics/2024/04/03/robert-kennedy-jr-voters/

“Kennedy is on track to potentially have the strongest finish for a third-party presidential candidate since Ross Perot, who received 18.9 percent of the vote in 1992 and 8.4 percent in 1996.Most third-party candidates have struggled to gain traction in presidential elections, but Kennedy is drawing substantial support early on, posing a threat to both Biden and Trump, according to political strategists. Nine percent of voters nationally said they would vote for Kennedy, compared to 40 percent for Trump and 38 percent for Biden, according to a March 8-11 Suffolk-USA Today poll. Kennedy’s greatest potential impact could be in battleground states, where the margins of victory for either Biden or Trump could be slim.” (Emphasis added.) Ibid.

The most systemically significant (albeit remote) danger the Kennedy/Shanahan ticket poses in the 2024 election is to “spoil” a clean Electoral College outcome for either Biden or Trump. Although RFK Jr.’s standing in the polls does not suggest he is close to winning any state, bear in mind that three presidential elections in our history have been very close in the Electoral College count. George W. Bush won by one vote in 2000, as did Rutherford B. Hayes in 1876: and John Adams won only one more vote than he needed in 1796. https://www.washingtonpost.com/politics/2024/04/04/why-trump-wants-game-nebraskas-electoral-vote-mapped/

If the Kennedy/Shanahan were to somehow win the Electoral vote of at least one state (or even just one of the Electoral votes Nebraska and Maine uniquely allocate to their respective “battleground” Congressional Districts) that happens to mathematically deny both other candidates the 270- vote majority required for victory, all hell would break loose on broadcast and cable news.  Such an “election night plus” stalemate , and the leverage it could provide him, is what RFK Jr.is really playing for. It’s what he would call winning, and the financial markets would call a nightmare! He could then try turning the 2024 presidential election into a high stakes game of “Let’s make a deal.”

RFK Jr’s dealmaking would probably focus on Biden first.  If there is no deal by way of any Electoral College vote switching, the outcome would be determined by the newly elected House of Representatives in early 2025. Even if the Democrats were to win back an overall House majority, the voting in the House among the “top three” finishers in the Electoral College count for the presidency would be by state-by-state, with each casting one vote. Trump would have little incentive to make any deal if he is confident of his House MAGA base, because the GOP is highly likely to maintain its recent 27-20 share (three delegations have been evenly split) of state delegation majorities. Incidentally, the Senate would vote on the ordinary individual (not state) basis to choose the new vice president, but only the “top two” Electoral Vote finishers are eligible there.

Theoretically, the Congressionally chosen President and Vice President could be members of different political parties. If the House were to change hands in the 2024 election in a way that resulted in more evenly split state delegations (over 20 states have an even number of House seats), perhaps no candidate would be able to assemble the required majority of 26 state votes needed for selection as President before Inauguration Day. That would mean the Senate’s choice of Vice President would then become Acting President. If the Senate was also deadlocked, the new Speaker of the House of Representatives would be next in line of succession! This Rubik’s cube of institutional and personal conflicts of interest would make Bush v. Gore look pristine by comparison. https://www.wsj.com/articles/the-12th-amendments-dangerous-defect-11614035616

Hopefully, such a legally complex hypothetical outcome, fraught with intrigue, is not a likely possibility. But its potential shows that Biden’s candidacy is the one most likely to be spoiled in the event the Kennedy campaign shifts the choice to the House and Senate, and Trump would be President-elect a second time pending perhaps the outcome of his criminal trials. Although the jury is not yet out or even selected in any of Trump’s trials that could affect his standing as a candidate, the sense now is that the overall popular vote impact of the RFK Jr. spoiler campaign’s – resulting in a clear majority result regardless of any RFK Jr. wins in the Electoral College count --  also appears favorable to Trump for the moment. Current polls indicate that, if RFK Jr. is on the ballot, Biden would lose more votes to him than Trump, who also would maintain a smaller but marginally decisive overall lead.

Notably, Kennedy is polling strongly in an early survey among Hispanic voters, who are very important to Biden in Nevada and Arizona – states that were vital contributors to his defeat of Trump in 2020.

“Latino Democrats are now taking the threat of Kennedy’s campaign deadly seriously after national and state leaders were briefed on a previously unreported poll in mid-February by Democratic group Equis Research, which showed Kennedy performing surprisingly well among Latino voters in a dozen battleground states, effectively splintering Biden’s Hispanic coalition from 2020, when he garnered 59 percent Hispanic support.

“Kennedy’s popularity appears to be a function of name recognition and a general lack of enthusiasm for President Joe Biden and former President Donald Trump, not to mention voters brushing their views onto the somewhat empty canvas of his candidacy. The poll of 2,010 registered Latino voters found Kennedy winning one in five young Latino voters, and also reported him capturing a sizable 17 percent Latino support in Arizona and an even more robust 21 percent in Nevada— the highest number among the battleground states polled. The drag on Biden’s Latino support was so great in the survey that Trump was winning among Hispanics overall in 12 battleground states, 41 percent to Biden’s 34 percent.”

https://www.politico.com/news/magazine/2024/04/04/robert-f-kennedy-jr-joe-biden-00150465

The possibility of losing to Trump because of RFK Jr. must be particularly painful for Biden, who keeps a bust of the original RFK on prominent display in the Oval Office and whose hopes for his son seeking the presidency someday were shattered by Beau’s death from brain cancer in 2015. But is early to count too much on polling at this point in the campaign. Only a few key swing states polls have been taken, only some of them have Kennedy on the presumed ballot.  The ultimate voting “jury” for the November 5 election is also not yet known. Anecdotal reports suggest that Kennedy is attracting right wing support based on individualism, social media paranoia, and nostalgia for a lost American past. 

“…Kennedy attracts many of the same sort of alienated political eccentrics who in the past have gravitated to Trump. ‘They keep saying that he’s pulling from Biden, but most of our people are actually coming from the right,’ said Leigh Merinoff, volunteer chair of the finance committee of American Values [RFK’s independent Political Action Committee].” https://www.nytimes.com/2024/04/04/opinion/rfk-movement-trump.html

Most of the polling that suggests that Biden’s loss of votes to RFK Jr. will be more impactful than Trump’s remains based on surveys focused on registered voters only, not on the narrower and more relative and predictive cohort of self-identified likely voters. The shift in polling to the latter group will begin after the Party conventions later this summer and become more reliable as voting time draws nearer.

In the meantime, we will have to rely on our “smell test” to asses whether any of the campaigns is beginning to “spoil” — and hope that the presidential election outcome in 2024 does not again trigger a Supreme Court intervention as in 2000.