Harry Litman [00:00:07] Welcome to a special edition of Talking Feds Now, the day after the 2020 presidential election. I'm Harry Litman. Some things are pretty clear: the country remains polarized. The polls overestimated the possibility of a national rejection of President Trump, whose power and popularity remain substantial. Biden will win Michigan and Wisconsin, and the Wisconsin margin will be too large for Trump to overcome in a recount. Some things are murky, but emergent and clearly more likely than not. Biden will overtake Trump in Pennsylvania, Mitch McConnell will continue as majority leader with huge implications for what the government accomplishes in at least the next two years, and Joe Biden will be the next president of the United States.
And some things are hopelessly opaque: what will the courts, especially the U.S. Supreme Court, do? Will Trump supporters accept the results? How and when will Donald Trump be forced to cede power as president? We remain in the pages of history, but the narrative is not what we expected, and it still has some important twists and turns to play out.
Talking Feds is hugely fortunate to have three of the best people in the country to provide a clear eyed, sophisticated view of what has happened and what lies aheas. They are:
Feds regular Matt Miller, a partner at strategic advisory firm Vianovo. Matt was the director of the Office of Public Affairs for the Department of Justice under Eric Holder, and he's also worked in leadership positions in both the U.S. House and Senate. Welcome as always, Matt.
Matt Miller [00:02:16] Thanks for having me.
Harry Litman [00:02:17] Melissa Murray, professor of law at NYU School of Law, co-director of the Birnbaum Women's Leadership Network and co-host of the Talking Feds podcast, Women at the Table. Melissa, thanks so much for joining.
Melissa Murray [00:02:33] Thanks for having me.
Harry Litman [00:02:35] And Norm Ornstein, a resident scholar at the American Enterprise Institute, co-host of A.I.S Election Watch, a contributing editor for the National Journal and The Atlantic, and perhaps the country's foremost political thinker about the Senate and the House. He has been named, in fact, one of the top 100 global thinkers for diagnosing America's political dysfunction, and there's much to diagnose today. Norm, thanks so much, as always, for joining us.
Norm Ornstein [00:03:09] It's always good to be with you and God help us.
Harry Litman [00:03:13] Why don't we start with the timeline? Things have clarified somewhat since last night. Michigan and Wisconsin have come into tolerable clarity. When do we see this playing out until? Do we see a possibility of this actually bumping up against the pertinent deadlines of December 8th or 14th, or does it seem pretty clear? Nothing's that clear, but is one thing that's pretty clear that this will not drag on the way Florida 2000 did?
Matt Miller [00:03:47] Look, you never know. It seems to me that it's unlikely to take that long only because I think that Biden's lead is likely to be too big and too many states to get us into a Bush Gore situation. Hopefully, I'm not being naive here. I mean, if you look at it right now, he's at 253 electoral votes, and everyone that looks at the models in Pennsylvania short of the Trump campaign thinks that he's going to win that quite comfortably by 80,000 votes, maybe even 100,000 votes. That would put him over the top, and that's without winning Nevada and Arizona, both of which he leads in right now, or winning Georgia, where he may also overtake the president. So I think if we were looking at a situation where there was one state that put him over and maybe we will end up in that situation and, and this is the crucial thing you have the and, that state was so close that it was a margin that you could legitimately dispute in a recount or in court, a few hundred votes, maybe a thousand votes or even two thousand, then maybe you're in that kind of situation. But that's not where it looks like it's going to be right now in either Michigan, Wisconsin or Pennsylvania, which right now seem to be the tipping point states.
Harry Litman [00:04:54] And I'll add a prerequisite here, because it seems to me you need not only those two factors that Matt just identified, but some kind of plausible legal claim that gets at a pivotal number of votes. It can't be the dog ate this one, and this, this signature was messy. It has to be an actual discrete -- for instance, Pennsylvania. We should talk about it separately, it seems plausible, but they have to be able to frame a claim in court that would give them standing to actually reverse the outcome of the election.
Norm Ornstein [00:05:32] So, Harry, I want to introduce you to some of the Trump nominated and confirmed judges, and you may want to reconsider the idea of a plausible legal claim. That aside, I hope that Matt is right. And I think there is the good possibility here. It appears to me that the numbers in Wisconsin and Michigan are beyond any reasonable challenge through a recount, as he said. Pennsylvania, I just saw that David Wasserman, who's a really top analyst in all of this, thinks that the numbers are lining up for Biden to win there.
If we're fortunate and there's a victory in Georgia, but that's where it could be by just a couple of thousand votes, and we're well over 270, then I think all of this stuff that Trump and his lawyers will try and throw out there isn't going to get very far. Maybe that will happen. The numbers are much closer in Nevada than I would like to see. And Arizona, the Republicans at least, are fairly confident that a lot of the votes that are yet to be counted are theirs. I'm less confident than that, but my nightmare scenario is that Biden is somewhere right around 270 and where the switch of one elector could throw us below the 270 or two or three. And what we know is that Trump will go to any lengths to try and keep this from going against him, that he has an army of lawyers that will do whatever they can, that he has state legislatures in places like Pennsylvania especially, that will be happy to intervene on his behalf.
If it's too close, then the possibility of the Pennsylvania legislature, for example, saying we don't like the numbers, we don't trust them, we think the popular vote went to Trump, we're going to certify a Trump slate of electors. Governor Wolf saying this is outrageous and I'm going to sign the Biden slate of electors, but that goes to Congress and the House and Senate have to agree. And if they don't agree, then the House can choose a president, so that's one scenario. A second scenario is that they drag it out and you can find a million reasons for challenging ballots. And remember, we have at least four and possibly more Supreme Court justices who will say that if the Pennsylvania Supreme Court intervenes and says, no, it's over, we'll say you're not allowed to do that. There are too many nightmare scenarios here, so I'm very hopeful that Matt is right and that we will have a clear victory and that people will accept it. But I'm still nervous.
Melissa Murray [00:08:18] I think that's actually the most interesting aspect of this. In 2000 with Bush v. Gore, regardless of how you felt about the outcome, I think everyone understood that once the Supreme Court rendered its decision and the election went to George W. Bush, everyone got on side. And I don't know that there is much of a possibility, given the nature of the electorate and how polarized it is at this point in time, that regardless of which way the Supreme Court went, if it got to the Supreme Court or if it got to the House of Representatives, if it was determined in some other way outside of the ordinary political process, I'm not sure that you would have the same acceptance of the outcome in the way that you did in 2000.
Harry Litman [00:08:59] I mean, for starters, you will not have President Trump making the kind of statement, that patriotic statement ultimately that Al Gore made, saying that that's our system and how it works. Norm, to zero in on the two nightmares, so the first is 270 exactly and what, some kind of Hayes Tilden actually peeling off one of the 270 to take the other position?
Norm Ornstein [00:09:26] Yeah. And, you know, there are a number of states that have laws that automatically fire an elector who casts a vote for the wrong candidate and replaces that elector with somebody who does the right thing. But there are plenty of states that don't. And where the penalty, the Supreme Court, as we know, ruled on faithless electors very recently and said that states could keep them from acting that way. The problem is states where the penalty for being faithless is like a thousand dollar fine. Well, you think that will be covered?
Harry Litman [00:10:04] He'll say he will, and then he'll stiff them.
Norm Ornstein [00:10:07] He doesn't have Michael Cohen to write the check for him anymore, but somebody else could.
Harry Litman [00:10:12] But do they overlap with the, with the big states in play?
Norm Ornstein [00:10:15] It doesn't matter where they're from, if anyone, anywhere does it. So that's a potential problem here. And just to, we don't need to go deep into the history with Hayes Tilden, Tilden won a clear majority of the popular vote, appeared to have won electors and 20 electors in the South, the legislatures basically fuzzed it up and created the controversy that had to be settled by Congress. They actually created a commission to try and deal with it, and the commission in the end by a partisan vote actually cut a deal, which is basically why we had Jim Crow, because the deal was that they let the Republican become president, but the Democrats could control the laws in the South. So this is not an analogy we want to bring to the present day.
Harry Litman [00:11:09] The resemblance between where we are now and reconstruction seem more and more telling, but just to zero in. This, in fact, assuming Governor Wolf, as I think is a safe assumption, opposes what the Pennsylvania legislature tries to do, this nightmare gets resolved in the US House of Representatives, correct?
Norm Ornstein [00:11:30] Yes. And in the House of Representatives, they vote, as the Constitution says, by state. It takes a majority of states, that means twenty six and we had some hopes going into this election that if we got a really good outcome and we still had issues that the twenty sixth state the Republicans now have, they have twenty six majorities might go away, that possibly Democrats could win the House seat in Montana or the Florida 15th Congressional District. Republicans have more than twenty six state delegations.
Harry Litman [00:12:07] All right. So that's a fair enough nightmare, and so this is implicit in what you said, but to say the House decides doesn't mean that each representative casts a vote, but rather each delegation. All right, and now nightmare two had to do with just stringing this along, Bush v. Gore style, until it's really bumping up against the pertinent deadlines letting the, you know, some other actor try to play a pivotal role. Now, it sounds to me -- first I want to acknowledge what you're saying, which is this is if it's razor thin and you're not predicting exactly what you're pointing out how it could happen. But on this actually dragging us into December, because as I look at each state, I don't see it really happening that that way. I don't see they're going to have any purchase with trying to get a recount, for instance, in Wisconsin. And so I think each of the other states, you know, plays out within a week. But you're positing that then Republicans come in and start suing like crazy and that somehow is able to extend things as happened to Al Franken and Norm Coleman.
Norm Ornstein [00:13:24] Yeah. And, you know, it actually takes us back again to Hayes Tilden because it was the aftermath of that that Congress passed the Electoral Count Act to try and create procedures to deal with a controversy of this sort. And that's what set these so-called safe harbor dates when the states have to certify their electors - this year, December 8th - and when the electors meet in their various states, which is December 14th. Recognizing that we could end up with a controversy, both the House and Senate had bipartisan bills introduced to extend these dates just in case. And in the Senate, it was Rob Portman and Dick Durbin. Mitch McConnell refused to bring the bill up, and I doubt they'll do anything now. And the danger is, as we saw happen with the Minnesota recount, it took until July with a much smaller number of votes under contest to resolve it because of court challenges finally resolved by the Minnesota Supreme Court.
Norm Ornstein [00:14:23] You could see all kinds of smoke screens and issues raised about ballots, about provisional ballots, about ballots cast by mail that have been cured, as they say, where minor errors are able to be corrected by voters, or signature matches, which this Pennsylvania Supreme Court relaxed a little bit because we have many instances of votes unjustifiably being rejected because of what they say is a mismatch of signatures. You have a million ways in which you can try and push this and take it to different courts and appeal and then do minor additions to the appeals. That isn't going to happen if we're way over 270. But if it comes down to Pennsylvania, watch out.
Harry Litman [00:15:06] All right. Well, so, Melissa, though, I mean, wouldn't you think any of these, they're going to require some action by courts to enter stays maybe even up immediately to the US Supreme Court in that the loser will keep pushing, pushing, pushing. So it's not enough to just be litigious, you're going to need some complicity by courts willing to actually hazard dragging the whole country over the relevant time line, yeah?
Melissa Murray [00:15:33] Well, I think that's certainly true. Of course, at the Supreme Court, all you need 5 for the stay, and there certainly, I mean, you could imagine any combination of five willing to do that right now. I think the bigger question is, lots of cases will be filed, there's already a petition pending before the court in Pennsylvania, and again, that's sort of a follow on from last week when Justice Alito issued that statement saying that although the court was not going to expedite on the Pennsylvania ballots at this point in time, they were leaving the door open essentially to going back and reconsidering whether late arriving ballots could be counted.
And that petition has arrived right on time. I think it really depends on where the action is on the electoral map. It may be the case that Pennsylvania is irrelevant if other states come in, and so I think that's part of it. And that certainly was not the case in 2000 when it really all did come down to Florida and in particular Palm Beach County. Here, we're playing on lots of different fields and lots of different states are in play, and one thing that is noteworthy about the Trump administration, or rather the Trump campaign strategy in all of this, is that it's remarkably inconsistent in what it's seeking, so in some cases it's 'stop counting, stopped counting,' and in other cases it's 'go back and recount' and there is no consistency to what they're asking for, and I think it's hard to get the court to sort of buy into a strategy that really does seem more opportunistic than principled.
Matt Miller [00:16:59] I think that makes a lot of sense, and the point that Melissa started with, which to me seems the most important of all is, look, if Biden wins Pennsylvania and Arizona and Nevada, all of which he's ahead in now, except Pennsylvania, where he's expected to take the lead, you know, he's at 290 electoral votes, knocking Pennsylvania out doesn't flip the presidency, knocks you down to 270, and knocking out any one of the other states doesn't overturn the presidency, and that just seems then in a scenario where you're having to do this in two states at once, which to me seems to raise the bar so much higher, not just legally but politically as well. And it's important not to, I think, lose sight of the political angle here, as craven as Republicans have been during the Trump presidency, the signals we have gotten from Republican elected officials around the country so far in the last 24 hours has been that the votes need to be counted. There has been a noticeably different tone in what you're hearing from Republicans on Capitol Hill and the Trump campaign and the Trump White House. That could obviously change, but it's a little bit of a, it's a green shoot.
Harry Litman [00:18:05] Yeah, I mean, this goes back to Norm's point, as what will happen if Trump really gets to his most ruthless and zeroes in on particular leaders to try to change their tune. But, yeah, it's been pretty noteworthy that they just can't stomach this idea that you won't count votes. OK, a late breaking report on the on the petition that has arrived is Donald Trump himself has moved to intervene in that case, which is pending at the court, and presumably the motion to intervene will be granted. That's one step on the Bush v. Gore path, we could have a Trump v. Biden. I'd like to focus in a little bit on two of the states, I mean, it does seem to me, as you said, that Michigan and Wisconsin are out of reach. It does seem that Georgia would be a real lucky break for Biden, but Nevada, Arizona and Pennsylvania seem worthy of some individual consideration.
[00:19:06] Let's start with Arizona. I mean, Fox News early on called it for Biden. I believe that the AP also has, and they haven't, I don't believe they've repudiated those calls. So, you know, doesn't it look like they, you know, if you credit their kind of operations, that that's a pretty good harbinger for Vice President Biden?
Matt Miller [00:19:32] It is, but Norm brought up the Minnesota Senate race, so I'll mention the Minnesota, the Al Franken Senate race, because I was at the DNC scene, did a lot of work on that race and was on the phone arguing with the Associated Press when they called the race for Norm Coleman on election night that they were wrong, which, of course, they were. The AP makes mistakes in these races. Look, I think he's likely to win Arizona, but there is a dispute about the vote that's still remaining to be uncounted. It's clear that it's from Maricopa County and it seems to be mostly Election Day vote from Maricopa County, and so is that vote going to break like the overall Maricopa County has broken or is it going to be predominantly Republican because it's Election Day voting, and how does that shake out? I - look, it seems like Biden's likely to win, but I, I wouldn't put it in the bank just yet.
Harry Litman [00:20:15] That's a sobering tale, Minnesota.
OK, and let me focus a little on my home state of Pennsylvania, because I have been zeroing in. So first of all, there are a remarkable number of votes that are just coming in, something like a quarter in Allegheny County, many in the bedroom communities. And if you do the math and make certain assumptions, those are big ifs, you do have Biden squeaking into something like 100,000 vote lead. And that, I think, tends to moot things because you only have the little bit of corrections that Norm talked about, which are pretty few. The worry is that when that plays out, Trump will maintain a very small lead because remember, as Alito said, in his opinion, the votes that are coming in today, tomorrow and Friday are going to be segregated.
Now, they, too, figure to be 70-30 or so for Biden, and there look to be about 500,000 ballots sent out in question. Of course, number of those won't be in play, people decide not to vote, they voted anyway and so they'll be invalidated, they get them in after Friday. But if you think about half of them coming through and they're going the Biden way, that may well be enough to put him over the top, setting up a pristine issue that, as Norm says, four members of the court have already suggested they would take up, and who's going to bet on the latest justice not to?
I just want to ask your guys' view on this, because there's a very big point to make here that wasn't the case in Florida. And adding one more point to what Matt says, psychologically, politically, it matters hugely here, as we learned in 2000, who's perceived as in the lead, who's lead is being toppled. And that was the ultimate frustration for Biden, is they could never get even a temporary lead so that the court would be dislodging. If it goes into the court with a slight lead for Biden based on those votes, even if the court finds their [unintelligible], excuse the expression, federal constitutional violation, they have to take the other step of ordering a remedy that so baldly disenfranchizes voters who did nothing wrong and have very strong reliance interest, did exactly what they were told to do. That, to me, begins to feel like Dred Scott territory. I mean, really, really, really infamous. Am I being overly sanguine, do you think?
Norm Ornstein [00:23:53] I actually think that if Brown v. Board of Education came up tomorrow, it wouldn't be nine to nothing, it would be five-four, at least the wrong way, and maybe six-three. I could see John Roberts saying, hey, there's no discrimination anymore, the schools are fine. So I'm a little more concerned about that. I do think Matt has a very good point, that if Arizona, Nevada end up the way we expect and hope they will, and if Pennsylvania shows Biden with a lead, at that point, he's got 290 electoral votes. That's different than having 270, and it changes the psychology here. And whatever Trump tried to do, I think it would create a much larger barrier for other pernicious actors trying to intervene. But if the Pennsylvania result is for Biden, but by 7,000 votes, then we're in a very different territory because they will challenge every single ballot.
In Michigan now, it appears to me that Biden is going to have a lead of like 100,000 before this is done. Nothing is going to happen there. I don't see anything happening in Wisconsin. Even 20,000 is just not going to be overturned by a recount and they don't have enough disputed ballots. That's where winning by enough of a margin in Pennsylvania would make a big difference as well. So this is critical now, and I would just say one thing to your larger point too, Harry, which is what I find so dispiriting and so discouraging with rulings by courts around the country and with the attitude of the Supreme Court, is that the sanctity of the vote, the idea that the vote is something important and sacred, is the cornerstone of our political system and of a democracy.
They don't care about the idea that you'll take some phony excuse of voter fraud that might involve 12 people and use it to disenfranchise a hundred thousand or a million people, and that courts we have judges who will do that without a second thought is one of the most disturbing elements as we look to the future about where the country goes. And, you know, I keep coming back to the Shelby County decision, which I think. Was just so outrageous and that John Roberts basically said, hey, we don't have a problem anymore, and when all the evidence has emerged, including the day after the damn decision was Shelby County itself began to do race based discrimination again. And that he hasn't changed, tells us we're in for a long and difficult period over voting rights, whatever happens here.
Melissa Murray [00:26:31] I want to interject and maybe offer a counterpoint. I think all of that was exactly right. On November 2nd, there did seem to be quite a bit of Republican fear about an engaged and excited electorate, in part because the fact of an engaged and excited electorate seemed to portend in the favor of the Democrats. But what we've seen is that, in fact, voting was at an all time high. Lots of people participated and it kind of broke evenly for both sides. So I wonder if going forward there will be less fear about getting people to the polls and the whole question of early voting, even though there may be, on the flip side, more of an interest in doing this post election kind of machination.
Harry Litman [00:27:14] That's a pretty good segue to where I wanted to go. By the time people hear this, there may well be additional clarity with Arizona and Nevada, maybe even Georgia, and so you've heard our contingent predictions. But let's just take this step back and think of why we are here. Just as Melissa says, there was a sense, especially among Democrats and anticipation and excitement of a repudiation of the Trump tenure that we got to say didn't happen, right? The overall balance of proof is that we continue to be polarized a little bit less now, more Biden probably bet on the so-called blue wall coming back, but we're talking about really dispiriting levels of support for Trump throughout the country. What's your sense of first, why it happened, why the polls, again, were off not as dramatically, but again? And second, what is going on in the national mood?
Melissa Murray [00:28:17] Well, I'll say this, Harry. I did a lot of work phone banking, and it was hard to get people to talk to you on the phone. And I imagine if pollsters are relying on that kind of face to face contact with the electorate, it's probably incredibly hard to poll right now. So there's that. People have ways of screening, they have ways of disengaging from that kind of thing, and that's one part of it. I also think we've seen over the last four years a discrediting of the media, of polls, of basically any kind of fourth estate institution that's meant to be a check on the government, and that translates into an electorate that doesn't want to hear what the media has to say, that doesn't want to hear criticism of their favorite candidate.
And that may go in both directions. But I think it's especially pronounced on the side of the president and his supporters, and I think you saw that as well. But I don't know that it's all entirely gloom and doom. I mean, yes, some of these polls were really off, but some of it, I think was quite predictable in a way. Like if you take the Maine Senate race, for example, where Sarah Gideon was favored to win by a quite large margin over Susan Collins, and that just did not materialize. The scuttlebutt afterwards is that that was not a race that Mainers saw as coinciding with their interests. The outside money, the out-of-state money that poured in to support Sarah Gideon really seemed off to them. You had a lot of people who voted for Biden, but then check their ballot for Susan Collins. And because they thought that her values were more in keeping with Maine values. And in some sense, that's just basic retail politics. All politics is local, and that was a really kind of local sensibility getting deployed at the ballot.
Norm Ornstein [00:30:00] So I've been around the polling world since my graduate school days in Michigan. There's a real crisis in the profession that's been around for some time. While we've been conducting this conversation, I ended up with two calls on my landline that were spam calls. When I was away for three days and I got back and there were 30 phone messages, 29 of which were just that. All of the polling, except for the Internet polling, which has its own issues, are done by phone. Many of them don't use cell phones because that's more expensive. The response rate is nine percent. If I get a call and it comes in and somebody says, I'm a pollster, I hang up, just as I do if they say congratulations, you've won an award, or I'm from the Social Security Administration, whatever it may be, it's no longer a science. It's an art, because with those low response rates, they are like chefs in a kitchen trying to put together the right combination of ingredients, this many men and women, this with education and so on.
But with all of that, it's really disturbing when you think that at least in the past, the reputable, well done, reasonably expensive surveys that we know the national ones. If you aggregate and take the average, they've been pretty accurate at the national level. They're not accurate this time. They would have told us that Joe Biden would have won the popular vote by nine or 10 million, it's probably going to be more like four or five million. And so we've got a problem there, but I also think that what we saw with Hispanic votes in Florida and Texas and elsewhere, it's pretty clear that they are not able to get into the nuances of different kinds of voters in minority communities. The same, I think with young African-American men, we don't have the right people asking questions. They don't know the questions to ask, they don't get the right samples. And this is in some ways not just a wake up call for the polling community, I think it's a wake up call for the Democratic Party that they've missed out on some of those nuances themselves and maybe some of it because of the polling that's been done. But how can you rely on polls anymore when we see everything pointing in the direction of a very different election than the one we had?
Harry Litman [00:32:09] And those were two cohorts that went surprisingly better for Trump than in 2016?
Matt Miller [00:32:15] I think it's hard to know right now whether the problem in polling and it's obviously -- Norm's right, it's a crisis -- whether the problem is because of the way that the polling has changed, increasing number of people don't use landlines, it's harder to get people on the phone, more polls are done online, whether it is a technical problem that is leading to an undersampling of voters who support Trump and other Republicans, or if it's a problem caused by both that technical error and Republicans choosing not to participate in polls, because they think it's another elite institution they don't trust. It may be some mix of the two, but I don't think we know. We may not know for a while, but it's clear that we just can't trust polls at all anymore for the foreseeable future.
To the bigger question about the president being stronger than we all expected, I think that's obviously true, I think it says a lot of things about the country, some of them very uncomfortable. I also think, though, it says things about Donald Trump, that I'll put all of us kind of in the category of what people would call elites, don't like to recognize that he is a much stronger candidate than we give him credit for. His sort of mix of bombast and arrogance, and faux machismo is something that's attractive to a lot of people. And I think it's attractive to not just white voters, but it's attractive to some Hispanic voters and some black voters. And I say that about his unique strength as a candidate, because I think that's key to answering the question about what happens when Donald Trump is gone and how long does Trumpism survive. I think clearly Trumpism is around for a long time, whether there are other candidates who can repeat his unique mix of characteristics I think is a harder question to answer.
Melissa Murray [00:33:51] It's so funny that you say that, one of my earliest memories as a child is my father, who is African-American, setting the whole family down to watch the 60 minute interview with Donald Trump. I think this is just after The Art of the Deal was published and he really wanted to watch this interview. I think there is some appeal to that. The other thing, though, that I think is worth stating is that I think we all sort of fetishize Florida as some elusive prize that the Democrats can somehow win. I grew up in Florida, and I think we just need to put this on the shelf for a while, like Florida is not Democrat and it hasn't been for a long time. And I think people underestimate how kooky Florida is to their peril. I mean, Carl Hiaasen has made an entire career out of documenting how kooky Florida is. And it really is.
It's at once parochial and cosmopolitan, it has all of these different kind of ethnic mixes that you don't see anywhere else. There is no state quite like that. Certainly. I live in California and I've lived in New York, there's nothing quite like Florida. And I think thinking the Democratic Party can win here really misses how complicated and complex the state is. And part of that is the Latino vote, which I think the media does a poor job of disaggregating. They portray it as a monolith, but it's really quite complicated, and you have to really distinguish between the concerns of newly arrived Central and South Americans from Caribbean Spanish speakers, from Cuban-Americans. And if you don't understand that complex stew that is Florida, you have no way of actually penetrating and making that state yours.
Norm Ornstein [00:35:23] A couple of points, one on Florida. I just sort of sat kind of amused as I watched an, apropos of what Matt said about the machismo, that you have Venezuelan Americans basically voting for a right-wing Maduro and Cuban-Americans voting for a right-wing Castro, but it obviously works. The other thing is the really crushing disappointment for Democrats in Texas in the Rio Grande Valley. And there is another category, I think, of Hispanics, which is Mexican Americans who may have been there for one hundred years. They don't see themselves and the people from Guatemala trying to get across the border as kindred spirits, quite the opposite. And they do not view themselves as brown people in minorities in the country. And this is, it just demonstrates the complexity of dealing with communities and a part, I think, of our broader prejudice, that we tend to look at people with broad brushes instead of seeing the complexities of humanity.
Harry Litman [00:36:22] I would apply that very point to the overall Trump strategy of rule, because I think one thing he does is take relative low status folks and give them reassurance that they're not the bottom of the barrel, give them people to hate and resent.
Melissa Murray [00:36:39] But what Norm is making a different point. I mean, when you talk about Latinos in the Rio Grande Valley, those are individuals who will say we didn't cross the border, the border crossed us. We've been in the same place. I mean, this is sort of a wet foot, dry foot kind of understanding, and they don't they don't see themselves as low-information voters, they're elite, and they are in their communities. So, I mean, there's so much slicing and dicing that you can do in the Latino community and we haven't done it. Part of the reason why we haven't done it is that the media in large part and a lot of the pundit class is incredibly homogenous. And these kinds of takes don't necessarily flow naturally because that's not part of the experience of those who are commenting on the news of the day. But do you think Texas was a big loss, though, Matt? Because I actually saw Texas as a sort of bright spot. I mean, that Texas wasn't called immediately to me was a victory.
Matt Miller [00:37:29] Yeah, look, that's my home state. I think ultimately the math just didn't add up nationally to bring Texas in play. If you think about 2016, Texas voted 11 points to the right of the nation. Trump won it by nine points while losing the overall popular vote by two points. It's clear that Texas has moved to the left since 2016. But if Biden is only going to win the national popular vote by three points, you know, Texas hasn't moved eight points to the left. You know, it's not it's not going to be a state that's in play. But clearly, no, it's clear that it has moved, and I think the question is going forward in Texas, number one, are the changes that Trump has brought in the suburbs around Dallas, around Houston and around Austin, where outside of the immediate core metro areas where you have white suburban Republicans who have always just voted straight ticket Republican.
And a lot of them voted for Beto O'Rourke two years ago and a lot of them voted for Joe Biden yesterday. Are those permanent Democratic voters, are they people who are going to split their tickets? Are they in play or are they when Trump is gone, are they going to go back to voting for more traditional Republicans like Greg Abbott? That's the one question, and the second question is what happens with the Latino vote in Texas going forward? Because if you can kind of create the coalition that Beto created two years ago and Biden was on his way to creating before, I think the overall Trump vote just came out in the rural areas and some of the exurbs. You have a path for the state to be in play going forward. But that's based on political coalitions not changing further, and the thing we're learning is they're fluid and they move around all the time.
Norm Ornstein [00:39:01] Do we have any sense, Matt, about whether the Texas House came close to flipping because that was a critical element for redistricting, and the fact that it didn't means that this is another area where Democrats are going to have an uphill battle down the road.
Matt Miller [00:39:15] Yeah, not, we needed to pick up nine seats to flip the Texas House, and not only did we not pick up nine, we didn't pick up any, so.
Harry Litman [00:39:20] All right, why don't we spend a little bit of time looking at the most consequential aspect of this division, which is the distinct possibility that Biden, even if he wins, will be looking at Senate majority, hello again, Mitch McConnell. Thoughts on A: how that shaking out, and B: its implications for, let's stick with the Biden governance. And by the way, let me just report, even as we've been on the line, something we've all pretty well predicted, but it's now been formalized that Biden is the winner in Michigan. So going forward, the possible Senate split with the White House?
Norm Ornstein [00:40:00] Well, let me take a crack at it, since I'm high up on Mitch McConnell's enemies list and have been for a long time. Listeners can Google my name and and you'll see a video of him attacking me ruthlessly, which I view as a badge of honor.
Harry Litman [00:40:13] I mean, he broke the Senate, but now it's broken.
Norm Ornstein [00:40:16] It's going to be very difficult. And despite Joe Biden believing that if he won, there would be an epiphany and a large number of Senate Republicans would want to work with him. You could look at three -- Mitt Romney, Lisa Murkowski, Susan Collins -- who will be open to doing some things. But I remember back in 2009 when we had the urgent need to do an economic stimulus and recovery package, the only hope of breaking the filibuster there was getting three Republicans, Susan Collins, Olympia Snowe and Arlen Specter, and they did cut a deal, but the deal watered it down terribly, took out many things that would have been stimulus. And among other things, I remember Susan Collins insisting that there shouldn't be a penny for school construction money, because the federal government doesn't do school construction, which happens to be completely false. But that was a part of the deal.
I don't see any other Republicans going along, what I think will happen is that McConnell will not allow any judges if there are vacancies to be confirmed, that will be true if Steve Breyer ends up leaving a vacancy in the Supreme Court over the next four years. But also, he will wreak havoc with many of the executive nominations. Certainly, you're not going to see Democrats leaving the Senate to go into a Biden administration. But my guess is he will block anybody trying to move to, say, the Consumer Protection, Financial Protection Bureau. He will not let somebody be treasury secretary who might do things that would actually crack down on chicanery and financial institutions. There are going to be real problems ahead. I do see the possibility of an infrastructure package, a COVID recovery package. But I think there's something else we also have to keep in the back of our minds. Oh, by the way, I also see Ron Johnson and others trying to do, continue investigations into Hunter Biden.
It'll be Benghazi all over again. I also worry that because his main course of action, if he's president, for Biden will be executive actions, that we have a Supreme Court that's going to be ready to blow up chevron and basically curtail executive agencies from doing anything. Climate change is going to be taking a backseat as a consequence, and I think you've got five justices who will want to bring back Lochner and greatly curtail the ability of the federal government to do much of anything. So the challenges are going to be deep with a Republican majority on the court.
Harry Litman [00:42:39] Yeah that one-two punch of McConnell, who, among other things, can just control what comes up, period, and the courts. Holy cow. That's a great point I hadn't thought of is even the executive order path is going to be blocked at many turns. That was already a kind of hobby horse of the new right cabinet in particular, kind of cutting back on the power of executive agencies.
Norm Ornstein [00:43:04] And Gorsuch, you know, a Democratic Senate would have been able to basically at least hold the threat of enlarging the courts or taking away jurisdiction to keep some boundaries there, but it's gone.
Harry Litman [00:43:14] All that's gone now, right? Court packing, any of that. It's done done done. And you actually see that I mean, he has shown himself to be completely brazen and shameless. It could well be that literally there is zero judicial appointments. You see, that is as a concrete possibility?
Norm Ornstein [00:43:31] Yes, I do.
Harry Litman [00:43:32] Matt, you're shaking your head.
Matt Miller [00:43:33] Yeah, look, I mean, Norm is exactly what my thoughts were. I mean, all the big progressive legislation that you might want on climate change, on immigration, all completely off the table. There may be things that Biden can work with McConnell on, they do have a personal relationship that counts for something, but it is things like a COVID bill, it's not big progressive legislation. It's things like funding the government and keeping the government running year after year. As a policy, a serious policy agenda, the Biden administration is somewhat crippled from day one because of what can happen in the courts. The one ray of hope and it is a, it is a narrow ray, is that the fight for the Senate isn't quite over yet.
Harry Litman [00:44:11] Yeah, let's talk about it.
Matt Miller [00:44:13] It looks like Gary Peters is going to pull it out. He's been running consistently about a point behind Biden. It looks like Biden's going to win Michigan by more than a point. And that'll pull Peters over the line, which means we need two more seats. One of the Georgia seats is in a runoff right now. The other one, the one held by David Perdue, he is still above the threshold of 50 percent. But it looks like he he'll probably come just below it and throw that seat into a runoff, which means on January 5th, you could have two runoffs in Georgia that will determine control of the United States Senate. And if you want to talk about a battle, a national battle, those have typically favored Republicans, but, you know, in this type of environment, who knows? Donald Trump will still be president, still in January still antagonizing Democrats. I wouldn't say hope is lost just yet. It's a good time to own a TV station in Atlanta.
Harry Litman [00:45:04] Just doubling back, what do you, I mean, we've all sort of seen things trending for Biden, do you ever see Trump doing an Al Gore? I mean, if in fact scenarios that other than his don't come about, is it going to come down to his being dragged out by marshals on the 20th of January?
Norm Ornstein [00:45:22] Who knows? But no Al Gore, not a chance.
Melissa Murray [00:45:26] I've been saying since 2018 that the Senate was all the marbles, and even if the Democrats lost the White House, if they had the Senate, they would have more room to maneuver. I think it was the more important race than the presidency. If you had the Senate, you had an opportunity, I think, to check excesses of executive authority, excesses of legislative authority, whether it was from the House when the House was Republican controlled, now, I think it's more likely you could do more progressive things. But most importantly, with the judges, if you had a Democratic Senate, you could force a Republican president to put up more moderate nominees. The reason why the courts are captured right now, and why they have skewed so far to the right is because there is no way to check the president and he can put up as many extremists as he likes and there's no check on it.
Harry Litman [00:46:18] There's worse, it's politically advantageous to him to do to put up these extremists now.
Melissa Murray [00:46:23] Well, I think right now for Biden, even if you were to get Mitch McConnell to take hearings on potential judicial nominees, if there were vacancies to be filled, you're putting up more moderate. So it's going to be the kind of judges I think you saw during the last part of the Obama administration, a more Merrick Garland type judge. To the extent progressives harbored some dream of maybe recalibrating the judiciary just in sort of stocking the lower courts with more progressive people, civil rights lawyers, public defenders. You're not going to see that. It's going to be more of the prosecutorial model, more of the big firm partner model, because you're going to need some people crossing the aisle in order to get these people appointed if they're even able to get up for a hearing.
Harry Litman [00:47:07] Yeah, if there are any. And just to add to the point, McConnell not only wants to stop the music and all these ways, he'll have a political goal of making Biden be a one term president, yes?
Matt Miller [00:47:17] He was pretty clear about that with President Obama. No reason to think he's changed since then.
Melissa Murray [00:47:22] I do think it presents an opportunity to start looking toward the next midterm instead of, I mean, get in front of this. Start thinking about who you're going to run, do whatever postmortem you need to do on all of these Senate races and what surprises you learn from the polling and whatnot, and think about who are the candidates who are going to appeal. It's obvious that what we thought was appealing obviously hasn't worked, and we need to kind of recalibrate and rethink that model.
Harry Litman [00:47:49] God, I'm exhausted. Does anybody know in 2022 who's in cycle?
Norm Ornstein [00:47:54] There are a number of Republicans, Republicans are actually more vulnerable in 2022 than Democrats. Once again, there will be many more of them up. People like Rob Portman are going to have a challenge. The challenge, we face a double challenge, though, looking at this in the short run and even over the longer run. What we saw with this election is how powerful tribalism is. You had people voting Republican as much because they didn't want these evil people on the other side to win as because of their embrace of their own people, that a Joni Ernst could go on a debate and not know the price of commodities and still win handily tells you that. And of course, what we saw was more straight ticket voting than we imagined, and we thought that might be the case and that would help Biden because Republicans were going to vote for him, but instead it helped Republicans. And I worry about that even in 2022 in a state like Ohio.
But the second challenge is, and I'll repeat something I think I used in one of our earlier conversations, by 2040, 70 percent of Americans are going to live in 15 states. And that means that 30 percent of Americans will elect 70 of the United States senators, and they are not representative of the diversity of the country or the economic dynamism of the country. And we're going to see an increasing level of a sense of illegitimacy from the majority in the country that votes don't matter. And getting people to vote in 2022 after everybody went to these enormous lengths with great enthusiasm to bring about a change, and it didn't happen. Getting enthusiasm up for a midterm is always difficult. Barack Obama could certainly tell you that. So could Bill Clinton. The challenge for Democrats is going to be in a demoralized setting because they've been thwarted in every fashion, or for independence that you've got to bring about this change. And we can only hope in some senses that Mitch McConnell overplays his hand, creates a backlash, but this is tough.
Melissa Murray [00:49:47] It's tough because of the messaging. We've never been great at making the case for why courts matter. And if you can't say why courts matter, you can't then explain why the Senate matters. And so I think part of this is a dual messaging question. You have to talk about all this. I think about the Democratic convention, where they talked about all of these policy victories, the Violence Against Women Act, the ACA, but no one talked about how the Violence Against Women Act, an enormous portion of it, was gutted by a five-four majority of the court, and the ACA was literally in the hands of the court in this upcoming term. We can't talk about policy and Congress and the Senate without relating it to the court, and we have to make the court matter and the lower courts matter to the general electorate as well.
Harry Litman [00:50:32] So it seems like the craziness continues. Something we really didn't expect was that on the one hand, Biden would win, as seems increasingly likely, but that the polarization of the country would continue and he would have a nearly paralyzed government. All that said, if that's what we've inherited, I don't want to bury the headline if Donald J. Trump the impeached, discredited worst president in our history is a one term president, well, god bless that gift from the American electorate and these other problems, substantial though they are, we will put one foot in front of the other on. But the big headline is the ouster of the tyrant from the White House.
Matt Miller [00:51:26] Here, here.
Norm Ornstein [00:51:27] So the appropriate analogy is, congratulations, you're not going to die. We just have to amputate all four of your limbs.
Harry Litman [00:51:42] Thank you very much to Matt, Melissa and Norm, particularly for reporting for duty on such short notice. And thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other fads related content. You can check us out on the web, talkingfeds.com , we have full episode transcripts. And you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. Submit your questions to questions@talkingfeds.com, whether it's for Five Words or Fewer, or general questions about the inner workings of the legal system for our Sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking.
Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Don Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Littman, see ya next time.
