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Happy Friday,
Because this is 2020, there are just a few things of interest going on at once. Sometimes I like to pick one or two things to focus on but I feel this week requires a lightning round approach, lest I leave unaddressed some topic that [ed: only I think] people want my perspective on.
The Supreme Court
When I first read that Supreme Court Justice Ruth Bader Ginsburg had passed away, my first thought was, “oh no.” I’m no fan of a lot of Ginsburg’s jurisprudence, far from it, but I don’t welcome anyone’s death (Osama bin Laden excepted), and I was and am concerned about the effect of adding Supreme Court kerosene to the conflagration that is our body politic.
Kerosene there’s been, and I think we haven’t seen anything yet compared to what’s to come. I’ll have more to write about this in the coming weeks, but for now, let’s answer some frequently asked questions related to the process we’re about to witness, because if there’s anything that’s fun on a Friday, it’s reading about process.
Can Donald Trump nominate a Supreme Court Justice even though the election’s almost here and he might lose?
Yep. Article II, Section 2 of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . . Judges of the supreme Court[.]” Not only is there no prohibition on nominating a Justice in an election year, or even nominating one during a losing incumbent president’s lame duck period, the use of the word “shall” rather than “may” indicates that the president may have an affirmative obligation to nominate a Justice whenever a vacancy arises. Regardless of whether he’s required to nominate someone, he’s gonna.
But didn’t Senate Republicans refuse to hold a vote on President Obama’s nominee in the most recent presidential election year?
Yep, and some of them articulated a policy against taking up Supreme Court nominations during presidential election years, on the ground that people should be able to vote for what kind of Justice they’d like by proxy in the presidential election. Unsurprisingly, that policy doesn’t look as appealing to those Republican Senators now, and they’re almost certain to hold hearings and a vote on whomever President Trump nominates.
But isn’t that hypocritical?
Yep. Senate Republicans, who held the majority in the Senate in 2016 as they do now, weren’t required to provide any justification for refusing to hold a vote on Obama’s nominee, Merrick Garland. Per the Constitution, all they had to do was refuse to give their consent to Garland’s appointment and he would not be appointed. Historically, it’s common for the party who holds the majority in the Senate to refuse to appoint a nominee of a president of the other party. The hypocrisy arises from the unnecessary rhetoric they unwisely applied at the time, rather than the act of denying the appointment.
Are the Democrats hypocrites too?
Yep. In 2016 many of them said Garland’s appointment was necessary for the survival of the Republic and now appear poised to pull out all the stops to try to stop whomever Trump nominates. If Hillary Clinton were president and the Dems held the majority in the Senate right now, you can be sure they’d be moving forward with nomination and appointment, and everyone’s arguments would be flip-flopped from where they are today.
Does any of this matter to the nomination and appointment process?
Only if the allegations of hypocrisy or something else moves a few Republican Senators to vote against the appointment. Republicans can be hypocrites and still appoint a Justice. Democrats can be hypocrites and still all vote against the appointment. And that’s very likely to be exactly what happens.
So what does really matter?
Whoa, that’s a question only you can answer for yourself. Oh, you mean about the Supreme Court? The only thing that matters is whether the Democrats and their allies in the media are able to create an environment in which a few Republican Senators cannot vote for Trump’s nominee. With the Brett Kavanaugh nomination, this involved (false) allegations of his involvement in teenage serial rape gangs, so yeah, kerosene.
More on Supreme Court soon . . . .
Covid-19 sux, redux
A few weeks ago I wrote that Covid was in retreat, for now (by which I mean then, like, then it was in retreat). Now, it’s not in retreat and is in fact on the attack and Oregon case numbers have reached the highest daily total since mid-August, which is not great. Reopening schools, among other things, is in the balance.
On schools, though, there is reason for optimism. There is now evidence that schools that have opened in the U.S. actually cause less transmission than the community as a whole, according to a Brown University study as reported by the Washington Post. This is some of the first data from U.S. schools, and comports with at least some data from Europe, which also shows schools aren’t a major vector of coronavirus transmission. I tend to put quite a lot of stock in this study because neither Brown University nor the WaPo are the types of institutions known to downplay the severity of the disease, to say the least.
This good news will hopefully be confirmed by additional studies. In the meantime, though, we must weigh the apparent lack of transmission in schools against the impact of having schools largely closed to in-person attendance. My wife is a social worker by trade (currently her social work is confined to taming the more destructive tendencies of the three males, aged 45, 6 and 4, with whom she lives), and she speaks with much more knowledge than I can about the miserable home conditions in which a lot of Oregon’s kids live (Anna: “There are a LOT more of those homes than an average person would think.”). It is literally horrifying to her that those kids are stuck at home since last March, with no regular exposure to responsible adults. She’s been in those homes and has seen firsthand the chaos and deprivation those kids experience. I suspect few reading this email grew up in homes like this, or know what that experience is like. For most of us, school was a place to learn and see friends; for kids from really bad homes, school is their only lifeline.
To its credit, Oregon has relaxed the positivity rate standards for reopening due to wildfires interfering with some testing. If the Brown University study is to be believed, and transmission in school is actually less likely than elsewhere in the community, there is a strong case for further relaxation to get more kids, especially kids who rely upon school for survival, back into the classroom. Covid-19 has forced us to wrestle with the question of whether schools are for kids or for the people who earn their income from working at schools. Time to swing the pendulum back toward kids, please.
Why is the bad economy not front page news?
Because those suffering from the shutdowns are, for now, overwhelmingly at the lower end of the income spectrum in Oregon. People making less than $40,000 per year are twice as likely to still be out of work due to Covid-19 layoffs compared to higher earners.
This probably also helps explain why the State of Oregon is, again for now, seeing better revenue than expected, because people who make less than $40,000 per year pay little or no state income tax. With federal stimulus appearing to be increasingly difficult to come by, it’s likely the economy and state revenues will get worse and, as impacts climb the income ladder, a bigger focus of media and politicians.
Bob Smith
My senior year at Willamette University, I was planning to go straight to law school because that’s what people with a double major in history and politics do if they like to eat food and live under a roof. One day, I saw a posting on the bulletin board in the politics department that the U.S. House Agriculture Committee was looking for paid (!) interns in Washington D.C. The Ag Committee was chaired by Bob Smith, who represented what is now Greg Walden’s seat, and who also was a Willamette grad.
Why not? I applied intending to spend only a summer in DC and ship off to law school. I stayed for four years, the first year-and-a-half working for Bob. There were a lot of staff between me, the most junior of junior, and the Chairman, but he was always gracious and kind. Toward the end of his term, after he had announced he was retiring (again, which is a story unto itself), I staffed him in some constituent and lobbyist meetings and he was OK that I 23-year-old me had no idea what I was doing and was nervous as can be.
One of the fun things I got to do on the Bend City Council was to draft and pass a resolution commemorating Bob’s 80th birthday, and to thank him for his service to Bend and the rest of the 2nd District.
Bob passed away at the age of 89 this past week. My he rest in peace.
The greatest cease and desist letter of all time
Among all the things that lawyers write, there is one particular category that is perhaps best known: the cease and desist or demand letter. These are different but related. A cease and desist letter generally tells someone to stop doing something the lawyer and his client believe or want the other party to believe they think is unlawful. A demand letter generally, uh, demands that someone pay something to the lawyer’s client as a result of some kind of unlawful activity.
People don’t like getting those letters, and, to be honest, I think many lawyers don’t like writing them all that much. The goal is generally to be as threatening as possible, legally speaking, to get the other side to do what you want them to do. They usually don’t work and they are unpleasant to write and to read.
Except this one, from a lawyer for the Doobie Brothers to Bill Murray telling him to start paying for using the Doobies’ song in his commercials for his golf attire. It is hilarious.
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Have a great weekend!
Jeff Eager
jeff@eagerlawpc.com
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What I do:
EagerLaw PC – A business and real property law firm in Bend, Oregon.
Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.
Waste Alert – Local government monitoring for the solid waste and recycling industry.