Skip to content

Democrats and Immigration

Donald Trump loves to recast arguments he disagrees with in terms that are egregiously unappealing, and he doesn’t mind making it up. For instance: when NFL players kneel during the national anthem to protest unpunished police killings of unarmed black men, Trump recasts the protest as disrespect for military veterans and ingratitude for the players’ career success – which would be terrible, I guess, if it was true.

Trump argues for “strong borders” to combat illegal immigration, and he proposes a “big, beautiful wall” standing 30 feet high along the Mexican border from the Pacific Ocean to the Gulf of Mexico. Democrats aren’t enthusiastic about the wall, so Trump says they want an “open border” – that is, no border monitoring at all, no immigration enforcement whatsoever.

This illustrates two Trump themes. First, there are no small disagreements with Trump, no differences of degree. If you’re not 100 percent with Trump, you’re 100 percent against him. Second, there are no fair differences of opinion with Trump. If you don’t share his view, you have evil motives. If you’re against Trump’s wall, you’re for terrorism and gang violence.

There is, of course, no Democrat who advocates either open borders or violence. But while Democrats are generally more favorable to legal immigration than Trump is, and generally less alarmed by illegal immigration, there is no fully detailed statement of a Democratic Party position on immigration. Now that Democrats will be running the House of Representatives, they have to formulate an actual position on immigration. And since Democrats are not for open borders, that position has to involve excluding some people who would like to come here. That’s a hard fact, but it’s a fact.

In general, my top priority is protecting the people who are here and have been here for awhile. People who have made lives here, put down roots and built families and community ties, should usually be allowed to stay, whether they came legally or illegally. Other than new arrivals, deportations should be limited to those few who commit serious or violent crimes, and even those cases should be assessed individually.

For me, at the pinnacle of this group are the Dreamers – people who were brought to this country as children, and who have little or no remaining connection to the country they came from. Dreamers are the hardest test of the “what part of illegal don’t you understand” position, and the younger the harder. An infant bears no blame for being brought here, for going to school here, for growing up here and becoming culturally American. Deporting adults to countries they left as children and never really knew is cruel.

It alarms me to read of cases of immigrants who have been economically productive, sometimes married to citizens with children who are citizens, even people who built successful businesses that sustain good jobs, deported for something they did many years ago. It alarms me even more to read that the Trump administration is reconsidering the validity of the naturalizations of ordinary people who became citizens decades ago.

For those not already here, I have two priorities. First is the close family of citizens and permanent residents. I’m not talking about second cousins twice removed – I’m talking about the spouses and minor children of adults legally here, and the parents of minor children legally here. Our country’s values ought to favor the unity of close families.

Second are those seeking asylum. International asylum treaties generally protect people fleeing from religious or political persecution. I personally would add persecution based on race, ethnicity, sex and sexual orientation. But asylum laws don’t cover people fleeing harsh economic conditions, or even criminal violence. And while I would love to be able to take in and shelter every suffering person in the world – the truest expression of “Give me your tired, your poor” – I also understand the impracticality of such generosity. (Of course I would be more moved by Trump’s anti-asylum protestations if he joined his protests to proposals to alleviate the poverty and violence that impel people to flee.)

That said, I’m not all that concerned that Trump has drastically reduced the number of asylum seekers he will allow each year. I would prefer the larger numbers that Barack Obama allowed, but in the scheme of things the difference isn’t that great. In the short run, no number will be high enough to grant most requests, let alone all of them, and in the long run Trump will be gone and his successor can return to a more reasoned approach to the question.

Nor am I committed to the so-called “catch and release” policy. People who apply for asylum at our borders, as opposed to an American consulate abroad, are released into the country and given hearing dates if they can satisfy an initial inquiry whether they have a “reasonable fear” of persecution in their home countries. What bothers me is the wide variation in the application of supposedly uniform rules. Both the rate of “reasonable fear” inquiries approved and the rate of asylum claims granted vary ridiculously around the country. This tells me as a lawyer that asylum rules are unclear or inadequate, leaving too much discretion to bureaucrats and immigration judges.

Trump’s antipathy to the diversity visa lottery program, while silly because the program is so small, is not fundamentally problematic. The purpose of the program was to diversify the national origins of immigrants in the U.S., and the program, which dates to 1986, has amply achieved its purpose. More than 20 million apply annually for 50,000 green cards – the system mainly rewards luck, which for me at least is not a priority attribute for immigration.

Nor am I especially sympathetic to the work visa program. The program is supposed to allow employers to hire abroad for jobs they are unable to fill with American applicants. Too many employers use the program to hire workers at salaries that American workers would not accept. Trump himself routinely uses the work visa program to hire maids, waiters and cooks. It’s just not plausible that those positions can’t be filled with qualified Americans, although it is possible they can’t be filled with qualified Americans for what Trump pays: from $10.17 to $12.74 an hour.

If Nancy Pelosi were to ask my advice, I would tell her this. Offer to budget money for enhanced border security, including segments of a wall, where a wall is the most cost-effective option. Offer to curtail or even eliminate some of the lowest priority visa programs, like work visas and the diversity visa lottery. And offer to clarify and tighten statutory asylum criteria. In exchange, demand statutory codification of both DACA (Deferred Action for Childhood Arrivals) to protect the Dreamers, and DAPA (Deferred Action for Parents of Americans) to protect families. Demand funding for education and job training programs to qualify American for jobs that employers are filling abroad. Demand a minimum wage increase from $7.25 an hour to $10 now, rising over five years to $20 and thereafter indexed to inflation, to raise the floor below which employers can’t use foreign labor to undercut American wages. And demand a strict statute of limitations for deportation of illegal immigrants, with few and narrow exceptions, and an even stricter statute of limitations for re-examining citizens’ naturalizations.

Of course, Trump would never accept such a deal. Trump gains much more from complaining about the illegal immigration problem than he would ever gain from solving it.



Retreating to our Corners

Analysis of the 2016 elections emphasized the inroads that Donald Trump made into Democrats’ voter base. Trump won six states that Barack Obama had won twice: Florida, Iowa, Michigan, Ohio, Pennsylvania and Wisconsin. Trump assembled a coalition of the resentful and persuaded significant numbers of Democratic voters to join.

Analysts paid less attention to the Republican voters who Trump alienated. Hillary Clinton won no state that Obama lost, obscuring the fact that many voters liked the new Republican Party less than the old one. Clinton shifted hundreds of counties toward Democrats, and she flipped a number of them to Democratic majorities. As Time Magazine put it, “Hillary Clinton took advantage of Trump’s weakness with traditional Republicans to make gains largely in urban coastal centers,” and she expanded on Democrats’ appeal in “the mountain states, where growing Hispanic populations and Mormon distaste for Trump provided some of the sharpest swings for the Democrats.” Clinton’s gains tended to be in cities and suburbs, and it turns out there are cities and suburbs all over the country, even in red states.

Last week’s midterms underscored both the gains that Trump made and the price that Republicans paid for those gains. So on the one hand, Republicans consolidated their position in Trump-voting states by flipping Senate seats in Indiana, Missouri, North Dakota, and probably Florida – but not in Michigan, Montana, Ohio, Pennsylvania or West Virginia. And it appears that Republicans will lose their Senate seat in Arizona, which went for Trump by less than 4 percent.

On the other hand, Democrats held their Senate seats in all of the states won by Clinton, and picked up a seat in Nevada, the one Clinton state where Republicans were defending. Democrats flipped 35 Republican U.S. House seats while Republicans flipped only three Democratic seats. (Ten races remain undecided, with Democrats leading in four of them.) Democrats picked up seats in 19 states – not just blue states like California, New Jersey, New Mexico, New York and Virginia, but also red states like Georgia, Kansas, Oklahoma, South Carolina and Texas. Perhaps most telling, Democrats picked up 10 House seats in four states that Trump flipped in 2016: two each in Florida, Iowa and Michigan, and four in Pennsylvania.

By my count, Democrats flipped six state legislative houses in this year’s midterms: the State Senates in Colorado, Maine and New York; the State House in Minnesota; and both houses in New Hampshire. Clinton won all of those states. Republicans flipped just one chamber: the Alaska House, which is now run by a coalition of the Democratic minority with three Republicans and two independents but come January will be controlled by Republicans. Trump won Alaska in 2016. Although I have yet to see a definitive count, Democrats picked up at least 300 state legislative seats around the country.

Democrats also took seven gubernatorial seats from Republicans: Illinois, Kansas, Maine, Michigan, Nevada, New Mexico and Wisconsin. Republicans won the Alaska governor race, the current governor being a life-long Republican who won election as an independent, so I’m not counting that as a pick-up. Gubernatorial elections in Florida and Georgia are in dispute, although Republican candidates in both states are leading and have declared victory. All of those outcomes match the 2016 presidential outcome except three where Trump won: Kansas, Michigan and Wisconsin.

Even some of the midterm races that Democrats lost showed promise for future elections, both state-wide and local. Beto O’Rourke ran closer to Ted Cruz in the Texas Senate race than any Democrat has run in 30 years, since Lloyd Bentsen’s last re-election in 1988. Cruz won his seat in 2012 by 16 percent of the vote; he beat O’Rourke by less than 3 percent. Meanwhile, Texas Democrats ousted two Republican state senators, picked up 12 state House seats, and ran very close races for lieutenant governor and attorney general against Republican incumbents.

And in Georgia, if Stacey Abrams loses the governor’s race, it will be by less than 2 percent of the vote, in a state that ordinarily elects Republicans by wide margins.

The signs were there in 2016 for those who cared to see: Clinton lost Georgia and Texas by 5 and 9 percent, respectively – that is, by less than any Democrat since Bill Clinton in 1996, and by less than any non-Southern Democrat since 1968.

The point is that Democrats did much better in states that Trump won than Republicans did in states that Clinton won.

The retreat to partisan camps is emphasized by the fact that, come January there will be only one state with each party controlling one house of its legislature: Minnesota. Minnesota senators hold four-year terms and aren’t up for election until 2020, when Republicans’ one-seat majority will be very much in peril.

Still, Democrats have a long way to go. Even after the midterms, Democrats will control just 37 of 99 state legislative houses. (Nebraska is unicameral.) Democrats will have a rough road back in the states, especially in the Midwest, where Republicans took full advantage of their big gains in 2010 to gerrymander their legislative districts.

I expect the partisan retrenchment we saw this year to continue in 2020, at least assuming that Trump runs for re-election. The midterms show that neither pro-Trump nor anti-Trump enthusiasm is waning, and his approval and disapproval ratings never budge very much. Not from Day 1 of his presidency has Trump enjoyed a net approval rating, so the 2020 presidential election will be interesting.

Aside from the presidential election, I’ll be most interested in the Senate races in 2020. Just as Democrats had to defend Senate seats this year in states where Trump did well in 2016, Republicans will have to defend Senate seats in 2020 where Democrats did well this year, especially Colorado’s Cory Gardner, Georgia’s David Perdue, Iowa’s Joni Ernst and Maine’s Susan Collins. Only Collins is a Senate veteran; Gardner, Perdue and Ernst are all first-termers. Colorado and Maine voted for Clinton, and even in Georgia and Iowa Trump’s welcome may wear thin.


What it Takes to Win the House

Ballots are still being counted, but as of now, Democrats are leading the nationwide voting for Congress by a margin of 53,304,829, or 51.5 percent, to 48,370,229, or 46.7 percent.

Let’s pause over the fact that more than 100 million Americans voted in Congressional elections this year. CBS News estimates that 113 million Americans cast at least one vote in the midterms, putting turnout at about 49 percent of eligible voters. The last time midterm turnout was that high was 1966. By contrast, turnout in 2014 was below 37 percent – the lowest since World War II. This is closer, at least, to what democracy is supposed to look like.

All of those voters preferred Democratic candidates over Republican candidates for House seats by only 4.8 percent. I say “only” because pre-election prognostications instructed us that a substantial Democratic lead in the “generic” Congressional ballot would not be enough to overcome obstacles like gerrymandering and urban concentrations of Democratic voters. One of the direst of these prognostications came from the Washington Post, which opined last month that the Democrats’ lead in the generic ballot, then 8 percent among registered voters, would not be enough for Democrats to win a House majority.

So a generic win by less than 5 percent should have been bad news for Democrats. But it wasn’t. Democrats have picked up 32 seats so far, with ten races still undecided. Furthermore, Democratic candidates lead in four of the undecided races, so their total is likely to grow.

I’m not saying that gerrymandering has no effect. You only have to look at “before” and “after” pictures of Pennsylvania’s House delegation to know that. Pennsylvania’s Republican-controlled legislature gerrymandered the state into 12 Republican and six Democratic districts, but after the Pennsylvania Supreme Court ordered the drawing of more neutral district lines, Pennsylvanians last week voted to send nine members of each party to the House. Gerrymandering obviously alters election outcomes, but what 2018 teaches us is that the current state of the prognostication science can’t really quantify the effect.

It will take awhile for data analysts to compile and pick through the exit polling data, but I expect they’ll find several reasons that Democrats won so big with such a small overall vote margin. I think the two biggest factors that analysts will find will be the gender gap and the rural/non-rural gap.

Women voted vigorously pro-Democratic in this election, even more so than usual. One set of exit polls found that men favored Republican House candidates by 4 percent but women favored Democratic candidates by 19 percent. My suspicion is that women are much more turned off than men are by Donald Trump’s unconstrained, testosterone-driven style. That disposition probably contributed to the large increase in the number of women running for Congress this year, which in turn probably compounded women’s preference for Democratic Congressional candidates, since by far more women run as candidates of the Democratic Party than of the Republican Party.

By the way, the incoming class of the House of Representatives will have more than 100 women for the first time in history, up from 84 women in the current class. The newcomers will include the first two Muslim women elected to Congress, the first two Native American women elected to Congress, and two 29-year old women who will be the youngest members of their class. This too is closer to what democracy is supposed to look like.

Another big factor in Democrats’ success was the swing of suburban voters to Democrats. says that the suburban-ness of a Congressional district predicted its 2018 outcome better than did the district’s presidential votes in 2012 and 2016. As 538 puts it, “all kinds of suburbs delivered the House to Democrats.” Almost no matter how Republican a district is, as long as it isn’t rural it was a pick-up opportunity for Democrats. Even districts that voted for both Mitt Romney and Donald Trump were up for grabs this year, if they are suburban districts.

The emblematic example of the 538 argument is Oklahoma’s 5th District, which includes Oklahoma City and its suburbs. The Cook Political Report assigns the district a partisan index of 10 percent pro-Republican. The district’s House seat has been held by Republicans since 1975, and the district has gone reliably for Republican presidential and gubernatorial candidates, usually by big margins. Donald Trump won the district by 13 percent – which was actually a pretty small margin of Republican victory for that district.

But last week the seat was taken by Democrat Kendra Horn, a communication technology consultant with no previous electoral experience, from Republican incumbent Steve Russell, who won his previous two elections by more than 20 percent.

*          *          *

In addition to Oklahoma’s 5th District, several Congressional races proved to be especially satisfying for Democrats.

In Virginia’s 7th District, Democrat Abigail Spanberger, a former postal inspector and CIA officer, and a first-time candidate, ousted Republican David Brat, the Tea Party insurgent who took the seat from then-House Majority Leader Eric Cantor in 2014. Spanberger ran, as many successful Democrats did this year, on a campaign that included vigorous advocacy of the Affordable Care Act, which Brat despised.

Georgia’s 6th District is the one that held a special election last year to replace Tom Price, who served ever so briefly as President Trump’s scandal-ridden secretary of Health and Human Services. The seat had been in Republican hands since Newt Gingrich won it in 1978, but Democrat Jon Ossoff, a first-time candidate, took Republican Karen Handel, a former secretary of state and candidate for governor and senate, to a runoff. Both national parties poured resources into the race, and Democrats were disappointed that the special election produced a respectable showing but no Democratic gain. But in 2018, Handel had to run for re-election without the national focus of a special election – in last week’s midterms, Handel was but one of hundreds of House candidates that Republican interests had to support.

This time around, Handel lost to first-time candidate Lucy McBath, an African-American gun control advocate. This is not your father’s Georgia. McBath’s won by just 1 percent, but she won.

Texas’s 32nd District, in the Dallas suburbs, is represented by 11-term incumbent Republican Pete Sessions, an especially partisan Republican known for acerbic statements of hard-right political positions. The 32nd was one of two Texas districts flipped by Democrats last week – in this case, by first-time candidate Colin Allred, an African-American lawyer and former professional football player who campaigned on health care, education and voting rights. Allred won by more than 6 percent of the vote. It only ices the cake for Democrats that Sessions ranks in the House Republican leadership, serving as chair of the Rules Committee. (The other Texas seat Democrats flipped was the 7th District, in the Houston suburbs, where first-time candidate Lizzie Fletcher beat long-time incumbent John Culberson.)

Fifteen-term Republican Dana Rohrabacher, perhaps best known recently as a Vladimir Putin apologist, lost to first-time candidate and Republican-turned-Democrat Harley Rouda in California’s 48th District. The district is in Orange County, a one-time bastion of suburban conservatism that has been drifting toward Democrats in recent years.

First-time candidate Xochitl Small flipped the open seat in New Mexico’s 2nd District, leaving the state with an all-Democratic House delegation. New Mexico has been thought of as a swing state, but in January it will have a Democratic governor, two Democratic U.S. senators, Democratic majorities in both houses of its legislature, and an all-Democratic U.S. House delegation. With Democrats’ takeover of the New York Senate and both houses of the New Hampshire legislature, all four of our “New” states – New Hampshire, New Jersey, New Mexico and New York – will have Democrats running both houses of their legislatures, filling both of their U.S. Senate seats, and, except New Hampshire, serving as their governors.

Democrats also flipped two seats in Iowa, and came very close to ousting the only remaining Republican in the Iowa House delegation: Steve King, the man who conjured 130-pound Mexican marijuana smugglers with “calves the size of cantaloupes.” Incumbent Republican Governor Kim Reynolds kept her seat by just 3 percent of the vote; Republican Senator Joni Ernst, who is up in 2020, needs to start looking over her shoulder.


The New York Senate Blues

People think of New York State as a long-standing Democratic bastion, but that’s not the historical reality. New York after all was the home of Republican powerhouses like Thomas Dewey, Jacob Javits and Nelson Rockefeller.

New York has had Republican governors for 40 out of the last 76 years. During that time we’ve had more than 68 years’ worth of Republican representation in our two United States Senate seats. Although the state last voted for a Republican presidential candidate in 1984, Republican candidates won 13 out of 25 presidential votes during the 20th century in New York State.

The New York State Assembly has been in Democratic hands since the post-Watergate Democratic wave election of 1974. But the New York State Senate has been controlled by Republicans almost continuously since 1939. When re-districting is done every ten years, each house lets the other draw its own districts, allowing Assembly Democrats to gerrymander their districts to protect their majority and Senate Republicans to gerrymander their districts to protect their majority.

Still, as the national Republican Party has moved to the right, New Yorkers have increasingly favored Democrats, and maintaining a Republican Senate majority has gotten harder and harder. Several times beginning with the 2008 elections, New York voters have sent Democratic majorities to the Senate, only to see rebel Democratic senators enter into coalition agreements with Republicans to defeat their own party’s majorities.

This year, two remarkable things happened that will put an end to all of that. In September, six of the rebel Democrats lost primary challenges to progressive Democrats. Then this week, Democrats won a convincing majority in the Senate: at least 37 out of 63 seats, with five races still undecided.

Democratic primary voters having purged Democratic defectors, and general election voters having purged Republicans, further Democratic defections are highly unlikely. Come January, the New York State Senate will be run by a stable Democratic majority for the first time in 80 years. With a Democratic governor, lieutenant governor, comptroller and attorney general, and Democratic majorities in both houses of the state legislature, New York state government will finally reflect the partisan loyalties of its electorate.

New York legislators serve for two-year terms, so the Democratic Senate majority has to go back to the voters again in 2020, still running in Republican-gerrymandered districts. My personal recommendation, for what it’s worth, is that Democrats use their new bicameral majorities to initiate the process of amending New York’s constitution to provide for neutral, non-partisan redistricting after each federal census. It takes majority votes in two successive legislatures, then a referendum, to amend the state constitution. So even if Democrats approve a proposed amendment next year, it’s the legislators elected in 2020 who get to decide whether to put the proposal before the voters.

The popularity of non-partisan redistricting is on the rise. This week, voters in at least three states approved non-partisan redistricting proposals: in Colorado, 71.1 percent voted for the proposal; in Missouri, 62.0 percent; and in Michigan, 61.2 percent. Utah’s vote remains too close to call, with those in favor leading those opposed by 50.3 to 49.7 percent, with 80 percent of precincts reporting.

Given the popularity of non-partisan redistricting, even if Republicans re-take the New York Senate in 2020, they would be under substantial pressure to allow voters their say. Theoretically, at least, New York could have non-partisan redistricting in place in time for the next redistricting, before the 2022 election.

I prefer non-partisan redistricting because I think it’s better for democracy, enhancing public confidence in the fairness of elections. But in this case, because New York State has become so heavily Democratic in recent years, electoral fairness also favors Democrats: neutral district lines would likely reduce the size of our majority in the Assembly, but will surely gain us control of the Senate.


Democrats Winning in the Midwest

The 2018 Senate elections were always going to be difficult for Democrats. I estimated that Doug Jones’s remarkable win in Alabama’s special election last December roughly doubled Democrats’ chances of re-taking the Senate next month, from maybe 10 to 20 percent. Democratic Senate candidates as a group had a pretty good summer, boosting the party’s chances briefly to as high as one in three, but fell back again in September. This morning’s projection by puts Democrats’ odds at 21.3 percent.

I’ve observed that the 2018 gubernatorial map is as bad for Republicans as the Senatorial map is for Democrats. Twenty-seven of 36 seats up this year are held by Republicans; of 17 open seats (where the incumbent isn’t running or can’t run for re-election), 13 are held by Republicans and four by Democrats.

Over the summer it looked like Republicans might credibly contest two Democrat-held seats, in Oregon and Rhode Island. But both states have reverted to their underlying Democratic partisanship, and Republicans’ best chances to flip a Democratic seat is actually now Connecticut, where 538 gives the Republican gubernatorial nominee a 17.6 percent chance of victory.

On the other hand, 538 favors Democrats in seven Republican-held states: Michigan (95.7 percent chance of winning), Illinois (91.1 percent), Maine (90.6 percent), New Mexico (86.9 percent), Iowa (85.0 percent), Florida (77.4 percent), and Wisconsin (62.7 percent).  Republicans are favored by very small margins to win three other Republican-held states: Ohio (56.7 percent), Georgia (56.3 percent), and Nevada (54.1 percent).

Two things stand out about this. First is the potential magnitude of Democratic gains in statehouses around the country – a Democratic pick-up of as much as ten seats is plausible. Second is the concentration of Democratic pick-ups in the Midwest.

Barack Obama carried seven Midwestern states in 2008: Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio and Wisconsin. He carried six of them – all but Indiana – again in 2012. Donald Trump lives in the White House because he won five of those states: Indiana, Iowa, Michigan, Ohio and Wisconsin.

Six of those seven Midwestern states are run by Republican governors (all but Minnesota), and five of those six (all but Indiana) are up for election this year. Democrats are favored to win four of those five – and the fifth, Ohio, is well within range. Winning all six would require retaining or re-taking three open seats (Michigan, Minnesota and Ohio) and unseating three Republican incumbents (Illinois, Iowa and Wisconsin).

Meanwhile, all six Democrat-held Senate seats up for election this year in these seven states are now reasonably secure, even Senator Joe Donnelly of Indiana, whose odds of re-election are now almost six-to-one.

Democratic strength in the Midwest is important for a variety of reasons, one being the leverage that governors elected this year will have over redistricting following the 2020 census. Another is that, without holding its Midwestern seats, Democrats have no chance of re-taking the Senate this year. But perhaps most important of all, a Democrats return to strength across the Midwest in 2018 bodes very badly for Trump’s re-election prospects in 2020.

*          *          *

One other point about the gubernatorial elections. In all of American history, we’ve elected just two African-American governors: Douglas Wilder of Virginia and Deval Patrick of Massachusetts. It is possible, although not probable, that we will double that number two weeks from now: Andrew Gillum is favored to win in Florida, and Stacey Abrams is just slightly disfavored in Georgia. Abrams would be the first African-American woman to serve as governor in American history. Abrams and Gillum would be the first Democrats to win election in their respective states since 1998 and 1994.

Not Good Enough, Senator Warren

When Elizabeth Warren ran for the Senate in 2012, her opponent, Republican incumbent Scott Brown, accused her of falsely claiming Native American heritage “throughout her career” to gain an advantage in applying for prestigious professorial positions at Penn and Harvard law schools. The accusation gained new life in May 2016, when presumptive Republican nominee Donald Trump gave Senator Warren the nickname “Pocahontas,” in a typically juvenile Trumpian response to Warren’s harsh critique of discrepancies between Trump’s pro-middle class, anti-Wall Street campaign stances and his pro-Wall Street, anti-middle class business history.

The factual basis for the accusations was two-fold. First, while she was at Penn, Warren put herself on a national list of “minority” teachers as a Native American, based on an oral tradition in her family that the family heritage included Native American ancestry. Second, while Warren was at Harvard, Harvard listed her as Native American in describing the diversity of its faculty.

Before today, Warren’s defense was that she didn’t apply for the Penn and Harvard positions but was recruited for them, so didn’t use “minority” status in applying for those positions; and that she didn’t know that Harvard had described her as Native American until press reports brought it to her attention years after the fact. Today’s addition to those defenses is Warren’s release of a DNA analysis that concludes that Senator Warren does indeed have Native American ancestry.

Setting aside the childish and racially tinged name-calling that is Trump’s rhetorical signature, I have two objections to Warren’s defense. First, the DNA report found a very small portion of Warren’s ancestry to be Native American: a “Native American ancestor in the pedigree at approximately 8 generations before the sample, although the actual number could be somewhat lower or higher.” One ancestor eight generations back accounts for less than four-tenths of one percent of a person’s ancestry. Even if the estimate is off by two generations, Warren’s Native American ancestry would be less than 2 percent. Few would consider that a legitimate basis for claiming to be a Native American, as Senator Warren undisputedly did.

My second objection to Warren’s defense is that she thinks it’s significant that she didn’t apply to Harvard but was recruited, and that she didn’t know that Harvard had listed her as Native American. She is backed up on this point by Harvard itself, and by the chair of the committee that successfully recruited her (Charles Fried, the Republican former solicitor general in the Ronald Reagan administration), who insist that her claim of Native American ancestry played no role in her recruitment.

Now of course Harvard (and Fried) would say that. But the fact remains that when Harvard recruited Warren, she was listed at her own initiative as a Native American in the national directory that was widely used in those pre-internet days as a source for information on law professors. And the fact remains that Harvard clearly knew of her claim to Native American ancestry, since they themselves claimed her as Native American in boasting of their law faculty’s diversity – whether with or without Warren’s knowledge.

Personally, I don’t really care whether Warren has Native American ancestry, or how much. What I do care about is how Warren has handled the matter in the six years since it became a public issue.

The whole thing has a very Clintonian feel to it. I’m quite sure Warren knew when she listed herself as Native American in the faculty directory that such a listing could help her career. The claim was based on what amounts to family legend, giving her the look of an opportunist who grabbed for an undeserved advantage. And with the release of the DNA report, Warren is doubling down on the claim based on a tiny fraction of DNA, oblivious to the fact that most voters will regard the DNA report not as a vindication of her claim but as a contradiction of it. Finally, Warren is slicing the salami awfully thin, distinguishing between applying as a Native American and being recruited while representing herself as a Native American, as if we’re debating what the meaning of “is” is.

What she should have done when Scott Brown first brought it up in 2012 was to admit that it was a mistake to list herself as a Native American faculty member, and to apologize for that mistake. What she has done instead is to try to plough through it, never successfully putting it behind her.

To me, this suggests a Clintonian inability to recognize a problem and to act decisively to solve the problem, thereby allowing a minor issue (like, say, the questionable use of a private e-mail server for State Department business) to metastasize into a scandal. Handled deftly, an admission of a mistake in one’s own life could actually be a tactical advantage in running against Trump, the narcissist who never admits any mistake, or indeed any imperfection of any kind.

I really like Warren’s politics. Her work on behalf of American consumers, home-owners and wage-earners has been exceptional. Consequently, she makes for a great United States senator. But I think this episode shows that she would make a risky presidential candidate, and given the stakes in 2020, it’s a risk we can’t afford to take.


The Cost of Fighting Kavanaugh

As recently as eight years ago, North Dakota’s Congressional delegation – two senators and an at-large representative – was entirely Democratic. With a populist tradition rooted in its immigrant Norwegian farmer heritage, North Dakota maintains to this day some of the strongest legal constraints on corporate power of any state.

Still, North Dakota is a deeply red state. Cook gives the state a Republican “partisan lean” of 17 percent. The state has not voted for a Democratic candidate for president since Lyndon Johnson’s landslide in 1964. Donald Trump won North Dakota by 35 percent of the vote. The population is 90 percent white, and the largest minority is Native American, at 5 percent.

Curiously, Barack Obama won the largest percentage of the North Dakota vote in 2008 of any Democrat since Jimmy Carter in 1976 – and still Obama lost the state by 9 percent. In 2012, Obama lost North Dakota by 20 percent – which makes it all the more remarkable that Heidi Heitkamp, a Democrat, a former state attorney general, and an unsuccessful gubernatorial candidate in 2000, won election to the Senate in 2012. Her margin of victory was slim, less than 1 percent of the vote. But she won.

Running for re-election this year, Heitkamp hasn’t led in any publicly available poll since February. Polling over the summer showed her trailing by 4 percent and 5 percent margins. The gap was significant, but just outside the margins of error for most of those polls. So Heitkamp’s three-to-one fundraising advantage gave hope that she might somehow eke out another election.

Then came the Brett Kavanaugh nomination, and along with it, the mere possibility that Heitkamp might vote against confirmation. Heitkamp held her own through the initial round of hearings – she is not on the Senate Judiciary Committee, and she was able to remain uncommitted and still not become the focus of Kavanaugh’s advocates.

But on September 12, Christine Ford’s then-anonymous allegation of sexual assault by Kavanaugh became public. Heitkamp and other moderate senators, Democrat and Republican, were suddenly front and center in the public and media discussion of Kavanaugh’s confirmation. A Strategic Research Associates poll taken from September 17 to 27 showed Heitkamp’s polling gap had grown to 10 percent.

An additional hearing was held on September 27, for testimony on Ford’s allegations. A Fox News poll of likely voters taken from September 29 to October 2 has Heitkamp trailing by 12 percent.

Broader indicators show similar results. On September 12, projected that Democrats had a 32.3 percent chance of taking control of the Senate in midterm voting next month. Democrats’ chances slid slightly, to 31.9 percent on September 30, then crashed, to 22.0 percent on October 4, bouncing ever so slightly to 22.2 percent as of yesterday.

On September 12, FiveThirtyEight projected that Democrats had an 82.8 percent chance of taking control of the House. Those odds dropped slightly, to 80.7 percent on September 30, then dropped more substantially, to 73.9 percent. (Those are good odds, but no slam dunk. On November 6, 2016, FiveThirtyEight gave Hillary Clinton a 65 percent chance of winning.)

Meanwhile, Trump’s net disapproval rating is less than 10 percent, among the best ratings of his presidency. Polling shows that Republican voters’ enthusiasm for the midterms is approaching the high levels shown consistently by Democratic voters for the last year or so.

In general, Democrats went into the Christine Ford hearing believing that supporting her and opposing Kavanaugh would bolster their midterm prospects, maybe even winning them control of the Senate, by expanding Democratic support among women. But by the time of the actual voting, Senator Heitkamp knew well that opposing Kavanaugh’s confirmation might end her political career.

She cast her “no” vote anyway, presumably because she felt strongly that Kavanaugh does not belong on the Supreme Court.

There is still a month to go before the midterm election, although absentee and early voting has already begun. The Republican gains of the last few weeks could be undone, as the heat of the Kavanaugh controversy dissipates – after almost every battle, the winning side tends to let go of its bitter feelings faster than the losing side.

Even if that happens, the Kavanaugh episode shows that some voters, maybe five percent of the electorate, were discontented enough to disapprove of Trump’s performance and to prefer Democratic over Republican Congressional candidates, but remained pro-Republican enough to come home when a Republican Supreme Court nominee came under attack.

Opposition to Brett Kavanaugh was politically necessary for the Democratic Party as a whole, because the Democrats’ voter base would not stand for anything less, given the stakes of a nomination that will give us the most conservative Supreme Court in 80 years. And opposition to Kavanaugh was right, given the substance and credibility of the allegations against him, Kavanaugh’s unprecedented display of mean-spirited partisanship, and the sheer number of his lies under oath during the confirmation hearings.

Still, Democratic opposition to Kavanaugh has come with a cost.

%d bloggers like this: