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When Unconscious Bias Bears Arms – Part 2

Yesterday I returned to a theme I have considered on several occasions: the universality of human bias, specifically unconscious racial bias. I discussed the impact of the universality of unconscious racial bias on policing and police shootings, and I concluded with an observation that, given that racial bias exists in all of us, we need to be especially careful about how we go about selecting among candidates for police officer positions. Today I comment on one aspect of New York City’s system for selecting police officers.

We should start by considering what we expect from our police officers: intelligence, judgment, high integrity, honesty, calm in the gravest crises, courage under fire, physical fitness, marksmanship, interpersonal sensitivity, detailed knowledge of criminal law and procedure, including all-but-instant recall of every subtlety of Fourth Amendment jurisprudence, a high level of accuracy and detail in reports and testimony, and ability to handle the full wide range of humanity with unflagging equity and respect.

We expect police officers to ensure our safety, and to do so without bias or error, let alone wrong-doing.

And, in fairness, we should consider what we have been willing to spend to buy this skill set. In New York City, we pay starting cops a base salary of $42,819 a year. Maximum pay after many years of service is $78,026. By comparison, a nearby Suffolk County police officer hired since 2012 starts at $42,000 and goes up 8.6 percent a year for 12 years, maxing out at $111,506. (Suffolk County officers hired before 2012 max out at $139,234.) A Nassau County police officer starts at $34,000 but goes up to $107,319 after nine years.

Studies have consistently found racial bias in our criminal justice system generally, and in policing in particular. I recently noted one especially good study that found racial bias in the use of physical force against civilians at every level except the most severe – police shootings. I expressed skepticism that racial bias would be manifest at every level of force lower than shooting, but would just vanish at the highest level. I wonder if the sample size of non-African-American shooting victims was just too small to yield statistically significant results.

Every New York City police officer applicant must pass a written test. We as a society place a lot of confidence in written tests, but a moment’s thought should give us serious pause about the value of a pencil-and-paper examination as a qualifier for armed street patrol. How well can a multiple choice exam select for street judgment, integrity, honesty, and interpersonal skills?

But for better or worse, an exam preference is written into the New York State constitution (article V, section 6), and for an applicant pool the size of the police officer applicant pool there is no cost-practical alternative to a standardized written exam. A candidate who passes the written exam must then undergo a background investigation, a medical exam, a written psychological exam, an oral psychological exam, and a character investigation.

As far as I can tell, the NYPD does not subject police officer applicants to any of the computerized tests for race-based bias that I discussed in yesterday’s post. The NYPD does use the Minnesota Multiphasic Personality Inventory, which is a widely used and highly regarded psychometric assessment of psychology and psychopathology.

The MMPI does not directly test for unconscious racial or other bias, but it does test for a wide variety of psychological features like anxiety and depression, anger, aggressiveness, excitability, “people orientation,” paranoia, cynicism, and antisocial behavior. The NYPD does not disqualify candidates based on their MMPI scores alone, but uses problematic scores to identify areas for special attention in the screening process.

Given the state of the science regarding unconscious racial bias, given the serious risk that such bias accounts for much of the systemic bias in policing, and given the ready availability of easily administered tests for racial bias, it is disturbing that the New York Police Department apparently does not directly test for bias.

Unfortunately, there is reason to believe that even if the Police Department did try to screen out highly biased applicants, New York City bureaucracy would frustrate the effort.

Like any other civil service candidate who is disqualified, a police officer candidate who is disqualified can appeal to the City’s Civil Service Commission. Overall, the most common grounds for civil service disqualifications that are appealed to the Commission are insufficient education or experience and failure of the medical exam. But for police officer applicants, the most common grounds for disqualifications that are appealed to the Commission are psychological and character. Together, psychological and character appeals account for 225 of 252 police officer candidates’ disqualification appeals reported by the Civil Service Commission on the City’s open data portal.

The Police Department’s psychological evaluations are done by its Psychological Services Section, which is staffed primarily with psychologists who have doctoral degrees. Civil Service Commissioners are not psychologists, and none has served as a police officer. Only one of the current five, Charles McFaul, is a career civil servant. Civil Service Commissioners are political appointees, named by the Mayor, without confirmation by the City Council, or by anyone else. The only check on the Mayor’s appointment authority is that no more than three commissioners can be members of the same political party.

On the face of it, frankly, it is disturbing that a lay commission can and regularly does overrule the Police Department on questions of psychological and character fitness of police officer candidates. Looking deeper into it does nothing to allay the concern.

During fiscal year 2016, the Civil Service Commission decided 121 police officer candidate psychological disqualification appeals on the merits, meaning not on procedural grounds. Of those, the Commission affirmed 108 disqualification decisions and reversed 13. During the same period, the Commission decided 98 character disqualification appeals on the merits. Of those, the Commission affirmed 91 disqualifications and reversed seven.

That may not seem all that important – just 10 percent of these decisions were reversals. But that means that, in just one year, the Commission made 20 people eligible to be put on the street under arms despite the Police Department’s considered opinion that those officers lacked the psychology or character required of a police officer.

It’s important to note that the Commission only hears appeals from candidates who have been disqualified. If a candidate is found to be qualified, there is no appeal. Therefore, the incentive for Commission action is inherently one-sided. If the Commission affirmed all of its disqualification appeals, serious question would arise whether the Commission’s function adds value commensurate to its cost. The Commission can only demonstrate that it adds value to the disqualification process by reversing a disqualification appeal.

*          *          *

The Civil Service Commission’s process for determining psychological disqualification appeals is remarkably unregulated. Neither New York State nor New York City statutes spell out any procedures the Commission must follow, and the Commission’s own rules include just one section, with 11 paragraphs, that covers disqualification appeals.

Two of those paragraphs delineate eligibility to file an appeal, three paragraphs provide deadlines for filing appeals, and three paragraphs state deadlines for action by the Commission – although all three of the Commission’s deadlines are effectively voided by the open-ended qualification “or as soon thereafter as practicable.” One paragraph provides that the candidate can buy a transcript of the Commission’s proceedings.

Only two paragraphs meaningfully constrain the Commission’s appeals procedure. One paragraph says that the Commission may “affirm, modify, reverse or remand” the disqualification decision, which isn’t much of a constraint, and isn’t complied with by the Commission anyway – the Commission dismissed 88 appeals out of 209 decided during fiscal year 2016, which is a perfectly appropriate disposition except for the fact that the Commission’s rules don’t provide for it.

The other paragraph says that the Commission will decide an appeal based on the written record unless it determines to convene oral argument to allow the candidate “to make an explanation and to submit facts in opposition to the action or determination of the City Personnel Director. At such proceedings, the City Personnel Director will be permitted to defend his/her action or determination.”

As a matter of judicial nomenclature, the proceeding described by the Commission’s rules is not an oral argument, but an evidentiary hearing. The Commission’s decisions routinely refer to the hearings as “de novo,” which is Latin for “anew” – meaning that the hearing is held not to review the Police Department’s decision, but to come to a decision fresh, as if the Police Department had never issued a decision. Thus the Commission’s “appeals” are not actually appeals, but trial-like decisions of dubious legal validity under statutes that provide for “appeals.”

It is unclear why a candidate is entitled to submit new evidence on appeal that the candidate did not submit in the first place. In fact, in two of the seven character disqualification reversals, applicants failed to submit any evidence at all in response to the Police Department’s notices that it was planning to disqualify them. This is an open-and-shut case of what lawyers call waiver – failure to assert a claim or a defense at a critical point forecloses assertion of that claim or defense thereafter. Yet in both cases, the Civil Service Commission, completely without explanation, allowed the applicants to appeal Police Department decisions that the applicants had not contested at the Police Department itself.

It is also not clear why, if the Commission thinks the facts in the record are not sufficient, the Commission does not simply rule against whichever party bears the burden of proof – which is, as any lawyer will tell you, the customary way to handle a case where the evidence is insufficient to carry the burden of proof. Nor is it clear why, if the Commission thinks the facts in the record are not sufficient, at the least the Commission does not remand the appeal back to the Personnel Director with instruction to hear and respond to the additional evidence.

The Commission’s rules say nothing about how the Commission decides whether to schedule oral argument – no statement of a legal standard, no listing of factors or considerations to be taken into account. It simply provides for the Commission’s unconstrained discretion.

In the Commission’s character disqualification decisions, the Commission includes a rote reference to the Commission’s “statutory authority” to hold hearings, but there is no such statutory authority. Whatever authority the Commission has to hold hearings comes exclusively from its own rules. A first-year law student knows that a statute is enacted by a legislature, and that a statute is legally superior to a rule promulgated by an executive agency. It is an example of the disconcerting degree of legal sloppiness that pervades the Commission’s disqualification decisions that the decisions’ authors and signatories do not evidently know the difference between a statute and a rule.

Moreover, the Commission’s rules do not allocate the burden of proof on the appeal. Does the candidate bear the burden of proving that the Personnel Director’s decision is wrong and therefore that she is qualified, or does the Personnel Director bear the burden of proving that the candidate is not qualified? Ordinarily on an appeal, the person taking the appeal must prove that the decision appealed from was incorrect. Ordinarily, an appellate body grants broad deference to the fact-findings made in the decision that is challenged on appeal. The Commission’s rules discuss none of this.

Nor do the Commission’s rules specify a required level of proof. Is the question whether the Personnel Director’s decision was arbitrary and without “substantial evidence,” the standard that ordinarily applies in appeals from administrative determinations? Or is the question whether there is a “preponderance of the evidence” for one side or the other, a standard that would apply in a trial such as the Commission’s “de novo” hearings?

Indeed the Commission’s rules are so meaningless they are not even published on the Commission’s Web site.

The Commission’s appeals decisions add little clarity to any of this. The Commission’s decisions routinely assert that most of its appeals are decided without evidentiary hearings – but every single decision that reversed a police officer disqualification involved a hearing before the Commission. By way of explanation for its supposedly discretionary decision to hold a hearing, the Commission in no case offered more than a rote recitation that there were “certain issues that needed to be resolved,” a legally vacuous statement.

The Commission’s decisions on psychological disqualifications include no meaningful discussion of the burden of proof. The decisions typically include identically worded and legally empty statements that “the record does not support a disqualification.” Some of the Commission’s decisions reversing the Police Department’s character disqualifications do state, correctly I think, that the burden of proving character fitness lies with the applicant.

But the burden of proof is only half the issue: the Commission’s decisions, like its rules, give no clue of the Commission’s views on the standard of proof, which lawyers would regard as a critically important appellate issue.

*          *          *

In addition to being largely unregulated, the Commission’s disqualification appeals process is disturbingly secretive.

The Commission withholds from public scrutiny the names and identifying information of candidates taking psychological appeals, quite reasonably arguing that disclosure of this information would constitute an undue intrusion into the candidate’s personal privacy under New York State’s Freedom of Information Law. If a candidate is identifiably associated with a psychological diagnosis or problematic character trait, public disclosure of that diagnosis or trait could be damaging outside of the context of the candidacy.

I submitted freedom of information requests to the Commission for copies of all of its decisions issued over a one-year period in which the Commission overturned police officer disqualification decision made by the NYPD based on the psychology or character of the applicant. Initially, the Commission took the position that the disqualification appeals process is almost fully confidential, and that no part of the Commission’s disqualifications appeals decisions can be made available to the public. After I appealed, the Commission gave me redacted copies of 13 decisions in which the Commission had overruled psychological disqualifications and seven decisions in which the Commission had overruled character disqualifications.

The redactions showed the tenacity of the Commission’s preference for secrecy. The police officer candidates’ names were redacted, which is fine, but the redactions extended to other areas entirely outside any interest in the privacy of the candidates. For instance, the Commission redacted the expiration dates of the police officer “eligible lists” that the candidates were on before they were disqualified – even though at the end of the decision the Commission recited the approximate amount of time before the eligible list expired. The Commission even redacted its own appeals docket numbers – index numbers that the Commission assigns to appeals for case tracking purposes.

The Commission posts no data on its Web site about appeal outcomes, and it posts a grand total of one data set on the City’s open data portal – a single data set listing the disqualification appeals by type of disqualification, job applied for, employing agency, some dates, and whether the case is closed or remains open. The Commission does not post any information about the “closed” dispositions except the fact of closure – whether the appeals were granted or denied, much less why. The data set is apparently updated only annually – the current data ends last December.

The Commission’s open data posting does include one curious disclosure: the Commission’s posted data set includes civil service examination numbers and expiration dates of resulting eligible lists, even though that information was redacted from the responses to my freedom of information requests on the grounds of personal privacy.

To make matters worse, for those candidates whose disqualification appeals are successful and who become police officers, there is no way for the public to look at those officers’ records later and correlate them with any kind of problems on the job. This is because the “personnel records” of police officers, correction officers, and firefighters are protected from disclosure by New York State law – section 50-a of the state Civil Rights Law, to be specific. Such a correlation would help the public understand how effective the Police Department’s psychological and character screening is, and whether and to what degree the Civil Service Commission’s disqualification appeals function undermines that screening process.

There is currently a small debate going on about reforming section 50-a, but I expect that police unions will retain sufficient influence in the next session of the New York State Senate to block anything meaningful.

*          *          *

All of the discussion so far has been about process; let’s consider the outcomes of the disqualification appeals. I obtained and reviewed redacted copies of 20 Civil Service Commission decisions reversing psychological and character disqualifications pursuant to the Freedom of Information Law. Many of the decisions were disturbing, in both their results and their rationales.

A large share of the psychological disqualifications that were appealed had to do with excessive alcohol consumption. Police officers are permitted to carry firearms off-duty, and most do so – including, for one disturbing example, while drinking. Whereas the Police Department appears to take past misuse of alcohol seriously, as an indication of a “risk” of future alcohol abuse, the Commission’s approach to the issue is lax, even naïve.

In one case, for example, the Commission dismissed the Police Department’s concerns about the applicant’s drinking with the observation that “there is no evidence in the record of any negative functioning due to alcohol.” In other words, the applicant’s drinking hasn’t caused any harm so far, so let’s put a gun in his hand and see how that works out.

Even where there is a “record of any negative functioning due to alcohol,” the Commission is inclined to overlook it. One applicant had been taken to the emergency room on one occasion due to excessive alcohol consumption, hospitalization being a pretty good record of negative functioning due to alcohol. The Commission dismissed the Police Department’s concerns about this candidate’s risk of future alcohol abuse because it only happened once – “without further evidence of negative history of functioning.” The requirement that the NYPD produce “further evidence of negative history of functioning” sounds an awful lot like shifting the burden of proof of psychological fitness from the candidate to the Police Department. The Police Department – commendably, I think – isn’t willing to take the chance that the “further evidence” the Commission requires will be, say,  a shooting.

Furthermore, the Commission thought it important to note, the applicant “took responsibility” for the episode. In the Commission’s view, “taking responsibility” for something apparently consists entirely of admitting that it happened.

This expansive concept of “taking responsibility” pervades the Commission’s decisions. In one case, an applicant gave vague and contradictory answers to questions about his history of alcohol use. The Commission noted that the applicant “took responsibility,” meaning that, at the Commission’s hearing, he “admitted his behavior during the interview.” The applicant told the Commission that “he gave purposefully vague answers [to the NYPD] because he was offended” by his perception that the NYPD was accusing him of alcohol abuse. The Commission is fine, in other words, with a police officer who gives “purposefully vague answers,” as long as the officer has a motive of personal pique, and as long as he “takes responsibility” by admitting his conduct after the fact. I’m sure it will be a great reassurance to the defendant wrongfully convicted on the officer’s “purposefully vague answers” that the officer “took responsibility” by admitting later that he was ticked off at the defendant.

Notwithstanding the importance of police officers’ diligent honesty and attention to detail, the Commission goes to lengths to excuse inaccurate, incomplete, or misleading statements given by applicants to the Police Department. In two cases, the Commission found this excuse to be persuasive: the applicant perceived his interviewer to be “hostile.” One hopes that the defense attorneys’ cross-examination of those officers will be gentler. One hopes that these officers’ commanders will ask for reports only in the most kindly tones.

One applicant told the Commission that his PD interview was problematic because he knew that what he said could be used against him on his disqualification appeal. The Commission accepted that excuse. Let’s hope this officer never has to file a report or give testimony, because inaccuracies there most certainly can be used against an officer.

One applicant had a bad driving record: four speeding summonses and two summonses for driving while talking on a cell phone. But because he showed his “deep remorse” for his bad record, the Commission concluded that he should be allowed to get behind the wheel of a patrol car. And by the way, the applicant’s failure to reveal his driving record on his application was “unintentional”; no biggie.

Finally, the Commission shows a remarkably gullible streak. In one case, the applicant had been fired from a previous job for failure to comply with work rules. The applicant convinced the Commission to overlook the incident because his mother-in-law was dying at the time, and the applicant “freezes up when confronted by death.” Let’s just be grateful that police officers are never confronted with death; we wouldn’t want a cop “freezing up” on the job.

In a domestic dispute, one police officer candidate was accused of kicking down the front door and breaking the security chain after his wife locked him out. The candidate denied it, claiming that he gave the door a “slight push” and the chain just fell out because the door was old. The Commission bought it.

In another case, an applicant insisted that she didn’t know that the person on the phone was a detective, even though the evidence showed that it is standard practice for detectives to identify themselves by name and rank before questioning. Since she claimed she didn’t know she was talking to a detective, the Commission forgave her false statement on her application that she had never been questioned in relation to a criminal investigation.

In yet a third domestic dispute case, an applicant’s wife contended that the applicant had made “a laundry list of threats.” Not so, testified the applicant. In fact, the applicant insisted, he had told his wife that he was doing the laundry and had a list of things to do. Also, the dog ate his homework.

As disconcerting as are the specifics of the cases is the tone of animosity toward the Police Department that pervades the Commission’s appeals decisions. The Commission decisions are replete with pot-shots at the NYPD – by which I mean that the Commission goes out of its way to include criticisms of the Police Department in its decisions that have nothing to do with the Commission’s determination of the appeals.

There are other indications of hostility in the appeals decisions. I mentioned the two cases in which applicants failed to challenge the Police Department’s proposed disqualifications but were nonetheless allowed to appeal the final disqualification decisions. In several decisions, the Commission referred to evidence from other cases to support findings against the Police Department. Referring to evidence not in the record of the case under consideration is a serious judicial no-no.

More than once, the Commission insisted that bad applicant scores on MMPI scales had to be corroborated by actual behavior, because the MMPI is only to be used in a behavioral context. But the Commission did not hesitate to invoke a good MMPI score to excuse or overlook bad behavior. Apparently a good MMPI score is reliable but a bad MMPI score is not.

Of the 20 decisions I reviewed, the three sitting Commissioners were unanimous in 19 cases. In just one case was there a split decision, with Commissioner McFaul dissenting.

Given the quality of its work product, it was surprising to me to learn how long the Commission takes to decide cases. The 20 disqualification appeals cases I reviewed took an average of 637 days to resolve, measuring from the Police Department’s notice to the applicant that it proposed to disqualify the applicant to the date of the Civil Service Commission’s decision. Of the 637 days, an average of 516 days fell between the applicant’s appeal to the Commission and the Commission’s final decision.

For 17 months of work, I expect better from my government.

*          *          *

As I’ve mentioned, I’ve seen no indication that the Police Department’s psychological and character review of police officer candidates includes consideration of racial bias – but, to be fair, I don’t know for sure that racial bias is not considered, whether by the type of computerized test I discussed in yesterday’s post or otherwise.

I do know that, given the growing body of scientifically rigorous research literature showing that all people internalize racial biases, and given the life-and-death power of police officers over civilians, the Police Department ought to give high priority to screening out highly biased police officers, both during the application process and during each new police officer’s probationary period. And the Department ought to expend considerable effort training its police officers to be aware that they have biases, to recognize them and think about them, and to engage in reflection about them.

As part of a broader effort to reduce systemic racial bias in the criminal justice system, the Police Department should screen police officer applicants for unconscious racial biases, and should disqualify applicants who show especially strong biases. If the Police Department ever does so, it will be critically important that the Civil Service Commission not undermine that effort.

Lives are at stake, and lives matter.

When Unconscious Bias Bears Arms – Part 1

All people hold unconscious biases, or prejudices, including racial prejudices, but relatively few people are racists. I’ve argued that prejudice is an evolutionary adaptation in humans, and as such is both inevitable and universal. Racism, on the other hand, is an ideology that makes moral distinctions among races. Prejudice is inherent in the human condition; racism is learned.

I think it’s critically important to distinguish between prejudice and racism, and not just because I fervently believe the two are very different. If prejudice is inherent and universal, it is not blame-worthy, but racism is eminently blame-worthy. I believe that prejudices can be addressed through reason, and nothing ends reasoned discussion faster than the barest hint of an accusation of racism.

It’s important that we all acknowledge that we hold implicit biases. In my last job before retirement, our chief diversity officer had us take an on-line test of unconscious racial bias. We used the test offered by Harvard University’s Project Implicit, but if you enter “online test for racial bias” into your search engine, you’ll find a lot of options.

The test program we used showed a sequence of images of black and white faces. We were shown the images four times, and each time we were instructed to select “good” or “bad.” The program didn’t explain how it used this information to determine bias, but I think the idea was to measure the difference in how long it took us to act depending whether the face we saw was white or black – in other words, whether it was easier or harder for us to see one race as good or bad; whether it was instinctive for us to see one race as good or bad or whether it was necessary to wait an instant until reason (in this case, compliance with the instruction) kicked in.

I was deeply dismayed that my test showed a “moderate bias” against the black faces. I can only resort to the courage of my convictions: all people hold biases, including racial biases. In fact, Harvard’s Project Implicit reports that “members of stigmatized groups (Black people, gay people, older people) tend to have more positive implicit attitudes toward their groups than do people who are not in the group, but that there is still a moderate preference for the more socially valued group.”

In other words, African-Americans are biased against African-Americans, but less so than white Americans are. Gay people are biased against gay people, but less so than heterosexuals are. And so on.

Just by the way – if Project Implicit uses the word “moderate” consistently, then my level of bias against African-Americans is actually in the same range as the level of bias against African-Americans held by African-Americans themselves. In my case, that’s going to have to pass for good news.

*          *          *

If all people bear racial biases, then police officers bear them. If the Harvard findings hold true, then police officers generally hold biases against African-American civilians, although African-American police officers’ biases will be more moderate.

Maybe it’s too much to ask for police unions and other law enforcement advocates to acknowledge this, but the acknowledgement could be extremely useful. Instead, we get a flat, unqualified denial that police officers bear racial prejudices from people like Patrick Lynch, the president of the New York City police union.

I’ve seen no scientifically valid study of any bias reduction strategy – in other words, although I’ve asserted that reason is an antidote to unconscious bias, I have no proof of it. Still, I can’t imagine that it would hurt anything for police officers to undergo training focused on the existence and meaning of implicit racial biases. It was certainly sobering for me to learn that I tested “moderately biased”; I suspect it would be sobering for officers to learn their test results. It has to be a good thing to make unconscious bias a topic of conversation among police officers – for that matter, among people generally.

Perhaps my view of the universality of bias leads me to put inordinate faith in the human capacity for reason – which, of course, is every bit as much an evolutionary adaptation as human tribalism. But I am by nature an optimist, and faith in the human capacity for reason is the bedrock foundation of my optimism.

Unfortunately, there are situations where there is no time for reason, both in the social lives of people generally, and in the professional lives of police officers in particular. A police officer confronted with a situation in which a person may or may not be armed, and may or may not be hostile, must react based on instinct – there is no time for discussion or deliberation. The officer must assess the threat – to the officer and to others in the area – and must formulate a response to the threat, in an instant, without reflection on the possibility that unconscious bias might skew the assessment and the response.

This line of thought is going to be hard for some to accept. It’s hard for me to accept. The implication of this line of thinking is that police officers may not always be fully culpable even for racially biased shootings. If all people bear unconscious racial biases, including police officers; and if those biases tend to be against African-Americans, even among African-American police officers; and if police officers must assess and respond to threats based more on instinct than on reason, then demonizing every police officer who makes the wrong call becomes difficult.

I don’t describe this problem to introduce a complete and satisfactory solution to the problem; I don’t have one. I do think that we need both more acknowledgement of our own prejudices and more patience for the prejudices of others. We need to continue to expand the social and political discussion of unconscious bias and its pervasive consequences. Police officers in particular should be trained to understand what unconscious bias is and how it affects their judgments and actions.

And we need to be more careful in how we select our police officers. Tomorrow I’m going to post a discussion of one way that New York City fails in this respect.


Lost Opportunities and Silver Linings

Like most liberals, I’m having some trouble adjusting to the fact that Donald Trump is going to be our president. I was deeply invested in the idea of a Hillary Clinton presidency, and I allowed the polling to persuade me that it was going to happen.

The lost opportunities are many, but there’s little sense in rehearsing them all. I’ll just mention my top two. First, I was hoping desperately that the United States would become the 82nd country in the world to be led by a female head of state or head of government, 77 years after the first one in 1940, when Khertek Anchimaa-Toka became the head of the Soviet puppet state of Tannu Tuva. Merely stating those facts demonstrates that Americans are not the leader in women’s equality that we like to imagine, and in fact are pretty far behind.

Second, I was very eager for the first liberal-majority Supreme Court in almost 50 years, which should have followed from a Clinton victory. Conservative Supreme Court majorities have done our democracy enormous damage in recent years, in areas from campaign finance, to voting rights, to Second Amendment interpretation, and others – even while the Court has been a world leader in the fields of gay rights and same-sex marriage.

Donald Trump’s election ratifies the Senate’s wholly unjustified and undeniably racially tinged refusal to consider any nomination by President Obama to replace the late Justice Antonin Scalia. Furthermore, of the eight remaining justices, three are older than the average age of the last 21 justices to leave the Court – since 1960, two justices have died in office and 19 have resigned or retired. Their average age was 75; liberal Justices Ruth Bader Ginsburg and Stephen Breyer are 83 and 78. The least conservative of the Republican appointees, Anthony Kennedy, is 80. A Trump replacement for Scalia is a lost opportunity, leaving us no worse off than we were when Scalia was on the Court. But Trump replacements for the other three could be a catastrophe.

I fully expect a Trump presidency to be pretty bad – not just from the point of view of a political liberal who cares about legal equality and equality of economic opportunity, but also from the point of view of a citizen who has a stake in the American economy. Still, my fundamentally optimistic nature leads me to find silver linings, even in the ominously dark cloud that now looms over us.

The fact that Donald Trump lost the popular vote hasn’t gotten the attention that I think it deserves. Not only did Trump not win a majority, he didn’t even win a plurality – Hillary Clinton won almost a quarter million more votes than Trump, and her margin has been growing as the stragglers are counted.

This is the fifth time we have elected a president who lost the popular vote. It happened three times from 1824 to 1888, then it didn’t happen for more than a century. Now it has happened again twice, in 2000 and this week.

So Silver Lining Number One is that more voters rejected Trump than accepted him. Early analysis of voting patterns confirms that African-American, Asian-American, and Hispanic voters heavily preferred Clinton: 88 percent, 65 percent, and 65 percent respectively.

Although 58 percent of non-Hispanic white voters preferred Trump, younger voters preferred Clinton – Trump lost every age bracket under 40 and won every bracket over 40. This implies what pre-election polling suggested, that younger white voters preferred Clinton while older white voters preferred Trump.

Trump’s failure to collect even a plurality, let alone a majority, reassures me that America has not gone irretrievably crazy. I don’t need to surf to the Canadian immigration Web site just yet.

Silver Lining Number Two is that the demographic groups inclined to vote for a racially and religiously intolerant presidential candidate are shrinking, and those inclined to vote for a more inclusive candidate are growing. On the one hand, that is the very fact that resulted in Trump’s election: the insecurity of the shrinking white majority. On the other hand, demographics are moving against Trump, not for him. Maybe this is a phase we just have to go through until we white people get over ourselves.

The “millennial” generation is 55 percent non-Hispanic white; minorities are well represented among millennials. And because of that representation, non-Hispanic white millennials are less likely to regard minorities as “others,” and more likely to regard them as colleagues, friends and neighbors.

The post-millennial generation is going to be our first “majority minority” generation. Children under 15 years old today are just 51 percent non-Hispanic white, and those under five years old are 49 percent non-Hispanic white. This means that our future will include not just more voters in groups that President-Elect Trump seems to be determined to alienate, but also more non-Hispanic white voters who don’t feel threatened by those groups.

Silver Lining Number Three comes two years from now, in the 2018 mid-term elections. Mid-term elections are notoriously hard on the party that holds the White House. In 27 mid-term elections since 1910, the presidential party has gained seats in both houses of Congress only twice, in one house of Congress four times, and in neither house of Congress 21 times. On average, the party in the White House loses 33 House seats and four Senate seats in mid-term elections – more than enough to bring Democratic majorities to both houses in 2018.

I noted yesterday that Trump can choose to govern cautiously, in modest recognition that a majority of voters did not favor him. I don’t think he will, and even if he wants to I don’t think the hard right that controls the House of Representatives will let him.

But if Trump does govern modestly, focusing on economic issues like corporate tax reform, deregulation, and infrastructure investment, liberals have to accept the possibility that Trump could preside over a significant improvement in economic growth – as Ronald Reagan did, although not during his first two years in office. There are even areas where liberals could work with Trump – infrastructure investment being the most obvious. Liberals could agree to revenue neutral corporate tax reform, trading reduced nominal tax rates for elimination of loopholes, with tax incentives to repatriate capital from abroad and keep or bring manufacturing jobs onshore.

If Trump presides over significant economic improvement and avoids implementation of his more divisive and hurtful campaign proposals, then he deserves success in 2018. But if he governs along the lines that won him the white vote and the election, and if he is unable to prolong the eight-year-old economic expansion he will inherit, then the 2018 mid-terms could be deeply problematic for Republicans. Democrats will only need to pick up three Senate seats and 24 House seats to take majorities in both houses, ending Trump’s ability to govern in the style of his campaign.

Looking even farther out, Silver Lining Number 4 is the next presidential election in 2020. Again, if Trump were to preside over substantial economic improvement and refrain from implementing the more divisive of his campaign proposals, then he probably earns re-election. But if not, voter shifts of less than five percent from Trump to Not Trump would flip eight states, accounting for 135 electoral votes. The youngest of the millennials will be eligible to vote in 2020, as will the oldest of the “post-millennials.”

The big thing about the 2020 elections is that the next federal census occurs that year. In other words, the state legislatures elected in 2020 will largely control the next re-drawing of state and federal legislative districts. Democrats are now laboring under the redistricting that was done after the 2010 census and what was Republicans’ best mid-term success in history. In 2012, for instance, Democratic House candidates outpolled Republicans nationwide by more than 1.4 million votes but won 49 fewer seats. This Republican-favorable gerrymandering appears in a significant majority of states, and applies both to House districts and state legislative districts. Some of these artificially Republican state legislatures are the ones that have adopted some of the most brutal voter suppression measures, the better to preserve their gerrymandered majorities.

If Trump’s presidency is unpopular, and Democrats can find an appealing candidate, the 2020 elections could be very favorable to Democrats, and could go a long way to undoing the damage done in 2010.

On the other hand, there isn’t much reason to believe that a Clinton presidency would have been successful. Republicans were gearing up to be even more obstructionist than they have been with President Obama – for instance, talking of blocking all Supreme Court nominations for her entire term. The hard-right House majority would almost certainly have impeached Clinton, goaded by Trump and his unhappy fans.

No party has won four consecutive presidential elections since Roosevelt-Truman, and it’s only been done two other times (1800 to 1824 and 1868 to 1880). Under the circumstances that almost certainly would have surrounded a Hillary Clinton presidency, there isn’t much reason to believe that Democrats would have done it.

And finally, I have to mention Silver Lining Number 5: the Clintons will be gone from our electoral politics. Don’t get me wrong: I like both Clintons, a lot, and I voted for them in three general elections. I admire Bill Clinton’s mastery of policy, his political instincts, and his post-presidential work. I admire Hillary Clinton’s tenacity and resiliency. I like both Clintons’ politics.

But both of them seem to be unable to nip a problem in the bud. Whether it’s Bill Clinton denying he had sexual relations with that woman and talking in self-indulgent seriousness about the meaning of the word “is,” or Hillary Clinton promising she didn’t send or receive classified information through her personal server, both of them have a bizarre, self-sabatoging knack for making a small scandal into a big one. And there’s no denying that Bill Clinton has a zipper problem.

Even if you can excuse Bill Clinton, who legitimately might not have seen the “vast right-wing conspiracy” coming, there’s no excuse for Hillary Clinton, who after all coined that phrase. She should have known that she needed to do better, to do fast and full disclosure and decisively end the Benghazi non-scandal, the e-mail server quasi-scandal, and the Clinton Foundation mini-scandal. A good lawyer knows not to make a statement that can easily be disproved; Clinton should have known not to say she didn’t e-mail classified information unless and until someone had fully checked – which, obviously, no one did.

As much as I like Hillary Clinton, I didn’t want her to run in 2016. I was hoping for a fresh face, a happy warrior – someone with enough distance from President Obama to run for a third consecutive Democratic term but close enough to President Obama to continue the great good works he began, and which now may be largely undone. Clinton’s candidacy, first as a possibility and then as a reality, suppressed the development of new candidates who might have filled that bill. I first thought that then-Maryland Governor Martin O’Malley might be the one, but he turned out to lack dynamism and charisma. Bernie Sanders could have been great, but I just couldn’t convince myself that America would elect a candidate who calls himself a socialist, even if he isn’t actually a socialist. By the time Donald Trump secured the Republican nomination in May and the FBI reported in July on the first conclusion of its investigation into Clinton’s handling of classified e-mail, it was clear that Sanders would have been the preferable candidate. We’ll never know whether he would have won.

In any event, with the Clintons off the electoral stage, there is room for other players to develop into stars. And that ties Silver Lining Number 5, the departure of the Clintons, tight to Silver Lining Number 4, the 2020 election.


November 13, 2016 – I said in this post that Clinton had won the popular election by almost a quarter million votes, and that her margin was growing as counting continued. As of this morning, Clinton’s popular margin has grown to more than 630,000 votes. In other words, she won by a larger number of popular votes than John Kennedy in 1960, Richard Nixon in 1068, and Al Gore in 2000.


Apocalypse Now

Donald Trump’s election to the presidency defied precedent – he will be our first president with utterly no government experience. And Trump’s election shredded American standards for presidential behavior – he expressed his positions, and more importantly his oppositions, in terms more vulgar than used in public by any previous presidential candidate.

Perhaps fittingly for a candidate with a deep disregard for fact-based argument, Trump’s election also defied the science of data-driven public opinion analysis. All of the reputable houses gave heavy odds to Hillary Clinton. The founding father of the science, Nate Silver and his, gave Clinton better than two-to-one odds, and most of the others, like the Princeton Election Consortium, Upshot, and PredictWise, gave even better odds. Even the on-line betting markets heavily favored Clinton over Trump. With all of their sophisticated data mining and computer modeling, every single one of them missed the call – and none of them was even close.

But despite the shock of it, Trump’s election victory is a relatively ambiguous one. As of this writing, Trump is trailing Clinton in the popular vote. If roughly two out of three votes for Libertarian candidate Gary Johnson came from Clinton, then Johnson’s candidacy cost her Michigan, Pennsylvania, Wisconsin, and the presidency.

Trump’s election did not bring Republicans any gains in Congress. Republicans definitely lost one Senate seat, in Illinois, and may have lost a second, in New Hampshire. (Technically, Louisiana’s Senate seat remains undecided. A runoff election will decide between the top two finishers in yesterday’s vote, one Democrat and one Republican.) Republicans lost at least five seats in the House of Representatives, with two California districts still too close to call.

Thus Trump is only the fourth incoming president to lose seats in both houses of Congress since popular election of Senators was mandated by the Seventeenth Amendment. In this respect, Trump fared about as badly as George W. Bush – the only other modern candidate who won the election while losing the popular vote. In the 2000 election, Republicans won the White House but lost four Senate and two House seats.

It’s too early to say much about state elections, although Republicans picked up governorships in Missouri, New Hampshire and Vermont, while Democrat Roy Cooper holds a small lead over incumbent Republican Pat McCrory in North Carolina. Democrats picked up some state houses, like the House in New Mexico and both chambers of the Nevada legislature. Republicans also picked up some state legislative houses, including the Kentucky House and the Iowa Senate. Maddeningly, Democrats made no headway in the New York Senate, where the small Independent Democratic Caucus has aligned with the Republican minority.

In normal times, this kind of deep ambiguity would persuade a newly elected president to govern cautiously, from the center. John Kennedy is a good example – his popular vote victory was narrow, and his party lost one Senate seat and 21 House seats in the election (although Democrats still commanded large majorities in both houses). Kennedy did not govern as if he had won in a landslide, as Lyndon Johnson did after him.

Ronald Reagan, on the other hand, won by a ten percent popular margin, with a ten-to-one electoral vote ratio, and his party added 12 Senators and 34 Representatives. Reagan, unlike Kennedy, governed as if he had won in a landslide – because he had.

But nothing we have seen of Candidate Trump suggests an ability to govern cautiously, or any interest in trying. Cautious government for Trump might mean sticking for his first two years largely to his proposals for corporate tax reform, deregulation, and infrastructure investment, and only marginally changing existing foreign policy, especially regarding Russia, China and the Middle East. Riskier government might include pursuit of Trump’s proposals to gut Obamacare, end legal immigration for Muslims, create a roving deportation force to deport millions of illegal immigrants, pull out of the Paris agreement on climate change, revoke the nuclear deal with Iran, bluster against our allies about paying for NATO and paying for border walls, and continued investigation or even prosecution of Hillary Clinton.

In the next couple of weeks, we will begin to get clues about Trump’s choice. If he cabinet selections include the likes of Rudy Giuliani, Chris Christie and Newt Gingrich, we’re in for a very bumpy ride.

How to Make Tomorrow an Early Night

The outcome of the presidential election that finally ends tomorrow night turns on five states: Florida, Nevada, New Hampshire, North Carolina and Ohio. Donald Trump must win all of them to become the president of the United States. Hillary Clinton only needs to win one of them.

Nearly final polling has Clinton well ahead in New Hampshire, ahead in Nevada, and just barely ahead in Florida and North Carolina, and Trump well ahead in Ohio. Polls close in North Carolina and Ohio at 7:30 p.m. Eastern Time, and in Florida and New Hampshire at 8 p.m. If Clinton wins any of those, you can call it a night and go to bed content in the knowledge that you will wake up to the news of President-elect Hillary Rodham Clinton.

If you want to wait up until control of the Senate is decided, the only way you’re going to bed early tomorrow night is if Republicans retain their majority. A Democratic win is almost certain to depend on Nevada, where the polls don’t close until 10 p.m. Eastern Time.

Democrats need to pick up four seats tomorrow night, provided that they lose none and provided that Tim Kaine becomes vice president instead of Mike Pence. The Nevada seat being vacated by retiring Democratic Minority Leader Harry Reid is way too close to call, so an early night for Democrats requires a pick-up of five seats in the eastern U.S. as insurance against losing in Nevada. Unfortunately, there probably aren’t five seats to be picked up.

Two Democratic pick-ups are all but assured – Tammy Duckworth and Russ Feingold being all but certain to unseat Republican incumbents in Illinois and Wisconsin, respectively. Katie McGinty is likely, but hardly certain, to beat the Republican incumbent in Pennsylvania.

After that, the Democratic pickings get slim. New Hampshire’s Maggie Hassan is running neck-and-neck with Republican incumbent Kelly Ayotte. If Hassan edges out Ayotte (President Obama gave a rouser in Durham, N.H. this afternoon), that would get the Democrats to four pick-ups, pending the outcome in Nevada.

Democrats’ best hope for a fifth pick-up is in Missouri, where Republican incumbent Roy Blunt is distinctly ahead of Jason Kander.

At this point, control of the Senate is almost exactly a 50-50 proposition, but the good news is that Clinton showed a significant uptick in polls released today, maybe the most poll-drenched day of the entire campaign. Senate races are naturally less heavily polled than the presidential race, so there is some chance that Clinton’s uptick didn’t fully appear in Senate polling results, but will tomorrow.

Still, best case for Democrats is bad news for Tim Kaine – as Vice President, Kaine may be spending more of his time than he might have planned hanging around near the Senate floor, waiting to break party-line ties.

Economies Change

My first daily commute was on Tuesday, September 8, 1981. The lead international news report of the day covered efforts by Egyptian President Anwar el-Sadat to tamp down the domestic strife that ended his presidency, and his life, a month later. Sports news featured Vitas Gerulaitis’s upset victory over Ivan Lendl at the U.S. Open, setting up quarterfinal matches in which seven of eight men and six of eight women were American. Local news included President Reagan’s visit to Mayor Koch at Gracie Mansion to present a stage-prop check for $85 million as a “down payment” on federal funding for Westway, a multi-billion-dollar highway that was to be built on landfill in the Hudson River along southern Manhattan. (The project was abandoned in 1985.)

My last daily commute was on Thursday, June 30, 2016. The lead story of that day was ISIS’s bombing of the Ataturk Airport in Istanbul, in retaliation for a Turkish government crack-down. Sports news was from the early rounds at Wimbledon, where defending men’s singles champion Novak Djokovic won his 30th consecutive major tournament match – at a tournament in which one of eight men’s quarterfinalists and two of eight women would be American. In the local news was Ronald Perelman’s announcement of a $75 million donation to create an arts center at the World Trade Center site. (He did not visit Mayor di Blasio or Gracie Mansion to make the announcement.)

For nearly 35 years, I commuted by New York City subway pretty much every day I went to work. Almost every commuting day, I bought the day’s New York Times from a subway station vendor and read the paper on the way to work, and on the way back again.

In 1981, many subway commuters, maybe most, read newspapers during their trips. A few read books or magazines and some engaged their commute-mates in conversation, but newspapers were subway commuters’ companion of choice. SONY had begun retailing the Walkman in the U.S. in 1980, but they were bulky and expensive. They played cassette tapes – Google it, or ask your parents – because CDs and DVDs, much less iPods, hadn’t been invented.

By 2016, I was often the only newspaper reader in my subway car. Some days there were one or two others, more often than not giving a quick scan to one of the free papers handed out in front of New York City subway stations. As before, there were always a few book-readers and some conversationalists. But by 2016, consistently on every ride, the majority of subway commuters were occupied with their “devices” – mostly smart phones, but also Kindles, tablets, and others.

Print newspaper readership has declined drastically since its peak in the 1990s. Competition from the internet has slashed popular consumption of the print medium. This does not mean an end to our newspaper reading, but it does mean a change in where and how we read newspapers: majorities of readers of most large-circulation papers report that they read their newspapers of choice primarily or exclusively on-line.

The decline in print readership has had a variety of important consequences, including in the job market. Newsprint production, printing, trucking, and newspaper distribution jobs are drastically reduced – gone are the newsboys of old movies, who stood on city street corners yelling “extra, extra, read all about it.” But employment in other areas of newspaper production has expanded – Web design, videography, on-line subscription and advertising sales, and all kinds of new content production. On-line newspapers have engendered a whole new profession: the comment moderator, who screens on-line comments submitted by readers to decide whether they meet the newspaper’s content standards.

Consider the differences between the kinds of jobs that digital news distribution does and doesn’t need. Obsolescent newspaper industry jobs were largely blue collar jobs that did not require college educations. Those jobs were often unionized. The new, digital age jobs tend to be white collar jobs that require college degrees and are significantly less likely to be unionized.

In the 1950s, about three-quarters of the world’s cars were manufactured in the United States – about eight to ten million a year. Today, American automobile manufacture is second to China, but still runs about eight to ten million a year. In terms of production, automotive manufacture that has been moved abroad has been essentially offset by increases in overall automotive manufacture.

Also during the 1950s, General Motors alone was the second-largest employer in the world, following only the Soviet Union’s state industries. Today, fewer than one million Americans hold full-time jobs in motor vehicle and parts manufacturing, with another three million or so employed in maintenance and repair, and wholesale and retail sales.

How can we be producing as many cars as we did in the industry’s heyday while employing so many fewer workers?

In 1969 or 1970, my parents took our family on a two-week driving vacation through the Midwest, a popular vacation motif for middle class suburban families at that time. During our stay in Detroit, we took a guided tour of a Ford Motor Co. plant. We walked the length of the assembly line on an elevated catwalk-type structure. There were machines on the assembly line – in particular, I remember a series of rollers that mashed steel bars into steel sheets. Even with the machines, the assembly line included hordes of employees, putting cars together with hand tools.

Automotive manufacture, like so much else in manufacturing, has shifted heavily toward automation. If you see an automobile manufacturing assembly line today, you see a line of robots, some operated by human employees, but many not. This is the nature of the modern world – when it comes to making things, human labor is still needed, but not nearly as much as it was even just a few decades ago.

Robots have to be designed and manufactured, of course, and they have to be shipped and installed, software has to be written to operate them, and the software has to be installed, maintained and updated. Assuming that the manufacture of robots is as automated as is the manufacture of automobiles, then most of the robot-related jobs are white collar, degree-requisite, non-union jobs, compared to the blue collar, degree-optional, unionized jobs of the bygone world of auto manufacture. Many of the blue collar jobs that still exist have been moved to anti-union states in the American South.

In our time, automatons manufacture automobiles and robots manufacture robots. We can no more undo industrial automation than we can restore print newspapers to their glory days.

To the extent that the white working class in America worked in manufacturing jobs that are gone, it’s fair to say that those workers were misled. They were misled to believe that a blue collar career and a middle class life could be founded on a high school education. You don’t need a college degree to work an assembly line, with or without robots. But you can’t write self-driving car software without a college degree, and a pretty technical degree at that – English literature won’t do the trick.

There’s no individual particularly responsible for misleading the white working class in this respect.

To the extent that the white working class believes that building a border wall and ending illegal immigration will restore manufacturing jobs, or that tearing up NAFTA will bring back labor-intensive hand tool assembly lines, it’s fair again to say that those workers have been misled. But this time, there are individuals particularly responsible for doing the misleading.

It is not just untrue, it is demagogic and dangerous to traffic in the pretext that we can go back to a time when a high school education was sufficient to guarantee the white working class a blue collar career and a middle class life.

When I got out of law school in 1981 and started to work, I moved out of an apartment I had shared with three other students and found my own place. Thirty-five years later, I still live in the same neighborhood.

When I moved here, there were three of the old-style hardware stores within walking distance. Their hallmark was personalized service – you could go into one and tell the sales guy (it was always a guy, usually a middle-aged white guy) what your problem was, and he would tell you how to fix it. The neighborhood hardware stores all went out of business after larger hardware stores like Pergament and Rickel opened, and those in turn went out of business after mega-hardware stores like Home Depot opened.

My neighborhood had two fishmongers, two butcher shops, a shoe repair place, a small carpet store, a TV repair store, a stationery store, an old-school Italian bakery, a used bookstore, and others, I’m sure, that I’ve forgotten. All are long gone, done in by larger, less personal, less artisanal, and more distant houses of commerce with greater selection and lower prices. For what it’s worth, we now have two coffee houses (only one a Starbucks) and a wine shop (that is, not a liquor store) – bringing some of the old intimacy and personal connection to new businesses.

And here’s the thing: every single storefront that once housed a fishmonger or a corner hardware store still houses a small business. A sushi restaurant is where one of the hardware stores was. A mani-pedi shop is where the carpet store was. A 99-cent store replaced the used bookstore.

We can no more restore the corner hardware store and the TV repair shop than we can go back to hand tool manufacturing or print newspapers. And nobody pretends that we can. Instead, new entrepreneurs took the places vacated by the old entrepreneurs.

Adaptation, not resistance and reaction, is the way to restore economic security to the white working class. Throwing Donald Trump at the establishment like a human Molotov cocktail may feel satisfying, but the feeling won’t last. And when it passes, the undereducated white working class will still be underemployed.


Show Me, Missouri

Donald Trump’s presidential campaign went into serious decline on September 26, after his disastrous debate with Hillary Clinton. The decline was so steep that the infamous videotape of Donald Trump and Billy Bush, released on October 7, had relatively little additional effect on the presidential probabilities. But release of the tape (and other events, like Trump’s conspiratorial ranting about rigged elections) has had a major impact on Democrats’ efforts to re-take the Senate majority.

Most dramatically, we see this in the Missouri race between incumbent Republican Senator Roy Blunt and his Democratic challenger, Jason Kander. On October 9, gave Blunt a 74 percent chance of winning, if the election were held that day. As of this morning, Blunt’s winning probability has collapsed to 34 percent. In just nine days, Blunt’s seat has gone from almost out of reach for Democrats to almost safe for Democrats. Kander would be Missouri’s first Jewish senator, and his victory would give Missouri two Democratic senators for the first time since Stuart Symington retired in December 1976.

North Carolina Republican Senator Richard Burr has consistently led his challenger, Deborah Ross, although the projected vote margin has been relatively close. On October 9, Burr showed a 68 percent chance of winning; today, for the first time in the campaign, Ross is more likely to win than Burr, at 53 percent.

In Nevada, the seat now held by retiring Senate Minority Leader Harry Reid is being contested by Republican Joe Heck and Democrat Catherine Cortez Masto. Heck has polled ahead all year. On October 9, FiveThirtyEight gave him a 70 percent chance of victory; Masto went ahead on October 13, and her probability of winning stands at 65 percent.

The FiveThirtyEight “now-cast” has a Democratic take-over of the Senate at 81 percent probability, up from 47 percent on October 9. Democrats need to pick up four seats to take control, provided they lose none of the seats they now hold, and provided that Democrat Tim Kaine becomes Vice President and breaks ties in Democrats’ favor.

Three Democratic pick-ups look safe, meaning that each is more than 70 percent likely in the “now-cast”: Illinois, Indiana and Wisconsin. (A win by Democrat Evan Bayh would give Indiana two Democratic senators for the first time since Vance Hartke was beaten by Richard Lugar in 1976.)

Now, all of a sudden, three more Democratic pick-ups look probable, meaning a “now-cast” probability of winning greater than 60 percent: Missouri, Pennsylvania, and New Hampshire. And a Democratic “hold” of the Nevada seat now looks probable.

On top of all that, a Democratic pick-up in North Carolina is now plausible, giving Democrats an outside chance of picking up seven seats. This would more than reverse the Democrats’ disastrous showing of 2010, when Republicans picked up six seats in one of the worst ever mid-terms for Democrats.

If Republican Senate candidates have taken a hit since October 9, it’s likely that other “down-ballot” Republicans have, also. House races are hard to gauge, both because they are less thoroughly polled than Senate and presidential races and because polling of smaller electorates is inherently less reliable. But the fear level of Republican insiders is high enough to convince me that control of the House of Representatives is not beyond Democrats’ reach.

Democrats need to pick up 30 seats to take the House majority, and the pre-October 9 consensus was that Democrats could hope to gain no more than 15 seats. But some insiders are now projecting Democratic pick-ups in the range of 20 seats, and the campaign has three weeks to go.

I’ve pointed out that Republicans hold majorities in 23 state legislative chambers in states that President Obama won twice, and that Republicans’ margin in 10 of those chambers is four seats or fewer. The egregious gerrymandering that was done after the 2010 Republican victories and the 2010 census will protect a lot of Republican state legislatures (and, for that matter, Republican members of the U.S. House), but for many Republicans, the weight of The Donald at the top of their ticket will prove too much to carry.


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