What happens to a pending judicial nomination if the appointing President dies/resigns?

At least three judges nominated by President Nixon were appointed by President Ford. Ditto for nominees by President Kennedy.

|The Volokh Conspiracy |

Tonight, President Trump announced that he would undergo a quarantine after his aide, Hope Hicks, tested positive for COVID-19. [Update: The President tweeted that he tested positive for COVID-19]. I'm sure others have already gamed out what happens in the electoral college if the President dies before or after election day. (I previously considered a related morbid question). Here, I'd like to pose a different succession-related question: what happens to a pending judicial nominee if the nominating President dies, or resigns?

I looked into this question some time ago, and am finally able to dust off the answer. Well, at least a tentative answer. We can look to past practice.

President Nixon resigned on August 9, 1974. But he was quite busy before he left office. He made two "midnight" appointments on August 8, 1974.

  • On August 8, Nixon nominated Robert W. Warren to the U.S. District Court for the Western District of Wisconsin. He was confirmed by the Senate on August 22. And President Ford signed his commission on August 27.
  • On August 8, Nixon nominated Judge Donald D. Alsop to the U.S. District Court for the District of Minnesota. He was confirmed on December 18. And President Ford signed his commission on December 20.

Why these two judges? These were among the final acts Nixon took before he resigned, "effective at noon tomorrow." I would love to know the history here.

Nixon also nominated Judge Murray Gurfein to the Second Circuit on July 11, 1974. He was confirmed on August 22, 1974. And President Ford signed his commission on August 27.

Let's go back further. President Kennedy was assassinated on November 22, 1963. At that time, he had three pending judicial nominations.

  • On July 22, 1963, Kennedy nominated Charles Tenney to the U.S. District Court for the Southern District of New York. He was confirmed on December 5, 1963. President Johnson signed his commission on December 12, 1963.
  • On September 9, 1963, Kennedy nominated George Edwards to the Sixth Circuit. He was confirmed on December 16, 1963. President Johnson signed his commission on December 19, 1963.
  • On July 9, 1963, Kennedy nominated William Homer Thornberry to the U.S. District Court for the Western District of Texas. Thornberry was confirmed on July 15, 1963, before Kennedy's death. But Kennedy did not sign the commission in time. Why? Is there some backstory here? After Kennedy's death, President Johnson signed the commission on December 17, 1963.

Thornberry would play a far more important role in the judicial process five years later. In June 1968–five months before the presidential election–President Johnson nominated Associate Justice Abe Fortas to fill the vacant seat left by Chief Justice Earl Warren. Then, President Johnson nominated Thornberry to fill Abe Fortas's Associate Justice seat. But Fortas withdrew his candidacy in October 1968–one month before the election. At that point, the Thornberry nomination became moot. And, wouldn't you know it, the Chief Justice position was vacant through the election. And the winner of the election, Richard Nixon, filled the seat with Warren Burger. (If you are interested in this convoluted history, check out Ilya Shapiro's excellent new book, Supreme Disorder.)

I haven't checked the pending nominees from Presidents Roosevelt, Harding, McKinley, Garfield, Lincoln, Taylor, and Harrison. But I suspect the practice was the same.

These precedents suggest that any pending nominations made by President Trump would survive President Trump.

Update: Rick Hasen games out what happens if Trump, or Biden, dies before or after the election. Read it all. And Footnote 8 from Chiafalo may soon be relevant:

8 The Electors contend that elector discretion is needed to deal with the possibility that a future presidential candidate will die between Election Day and the Electoral College vote. See Reply Brief 20–22. We do not dismiss how much turmoil such an event could cause. In recognition of that fact, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. See, e.g., Cal. Elec. Code Ann. §6906; Ind. Code §3–10–4–1.7. And we suspect that in such a case, States without a specific provision would also release electors from their pledge. Still, we note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.

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  1. Lol. Holy shit, the writer are fucking with us.

    1. The simulation writers?

  2. Did I miss the part where you blamed this on Soros and John Roberts?

  3. He’s not dead yet.

    1. He is not even sick yet. He is asymptomatic at this time. So is Melania.

      1. Those unqualified declarations are silly.

        Life must be difficult with that level of reasoning skills.

        1. The White House just announced that Pres. Trump is experiencing “mild symptoms.”

          How could anyone have predicted that — or what seems likely to come next (he’ll be hidden from public sight, with emerging, vague indications his condition is worsening)?

          It must be — or seem to some to be — a miracle! To others, it’s just fundamental reasoning.

          1. Now the report is ‘fever, congestion, cough, and fatigue.’

            The likelihood is still strong that he will recover — death rate among 65-74-year-olds testing positive is reported to be eight percent and among 75-84-year-olds it is eighteen percent, so the chance he will succumb to this disease seems similar to the chance he will win the election.

            But the White House reports are going to be slow-developing and unlikely to be entirely reliable.

  4. Did I miss the part where you blamed this on Soros and John Roberts?
    celebs

  5. Do we really need this post at this moment?

    1. Gotta get our “norms” straight up front. Don’t want to be changing them on the fly.

      Which reminds me, I thought there was some kind of precedent about not counting electoral votes cast for dead candidates – ie causing a problem if a candidate dies between the day the EVs are cast, and the day they are counted by Congress.

  6. If for some reason Mike Pence was Acting President, he wouldn’t be available to break ties in the Senate, right?

    1. Are you talking law, or just a busy schedule ?

      What would the legal argument be ? A VP acting as President doesn’t stop being the VP.

      1. I just read the 25th Amendment and, surprise surprise, it’s silent on the issue. So any arguments either for or against are extra-textual.

        The best legal argument that occurs to me is that he is only permitted to hold one office at a time. Either he’s acting president, or vice president, but not both. Which doesn’t mean he wouldn’t resume being vice president once the president is back in the saddle; it just means he’s not permitted multiple offices at the same time.

        1. Sure, Pence remains VP, exercising the powers of the VP.
          One of those powers is acting President.

          1. I pledged if I ever had a chance to agree with Dr. Ed 2 I’d do so. He sounds persuasive here…..

          2. I agree with this interpretation. The 25th amendment only mentions that “such powers and duties shall be discharged by the Vice President as Acting President”; it does not mention anything about the Vice President not being Vice President. So the powers of the presidency are assumed by the VP for the duration of the president’s incapacitation, and the VP retains his position.

        2. Acting president is not an office. It’s a responsibility assigned to the office of the VP.

          Having said that, what is the constitutional source for your claim that the VP (or anyone else) can’t hold multiple offices at the same time?

          1. The Ineligibility Clause. “No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Since the Vice President is President of the Senate, he is a member of the Senate, albeit with limited voting rights. So if “Acting President” is indeed an office, then I think he can’t continue as senate president while also being acting president.

            Now, my position is not cast in concrete. My original comment was directed to the specific question of what would be the legal argument that he can’t do both. Since the 25th Amendment is silent, and since the issue has never arisen, who knows what the actual answer would be if it did. It may well be that you’re right and acting president is a duty rather than an office. At this point I wouldn’t bet the rent on either result.

            1. Him breaking a senate tie on a bill he may subsequently sign doesn’t feel right. I assume there are no temporary vps, or even Nancy (which opens its own can of cross-branch worms).

              He should just refuse to vote, and force the Senate to resolve itself, and skirt the issue out of Love of Country. If a vote is a tie, the will is lacking in any event. I’d have 60% supermajority just for normal legislation.

              1. Since the President and Vice President have always been of the same party (at least recently) it’s hard to imagine any real conflict of interest.

                1. See: Johnson and Kennedy. Not a lot of love lost.

                  1. Or Johnson and Lincoln.

            2. “No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Since the Vice President is President of the Senate, he is a member of the Senate, albeit with limited voting rights. So if “Acting President” is indeed an office, then I think he can’t continue as senate president while also being acting president.

              Now subsitute “Vice President” for “Acting President” and you have proved that the Vice President cannot act as President of the Senate, even when the real President is still in situ. For if President or Acting President are “offices” how could Vice President not be an “office” also ?

              Which is a problem since the Constitution explicitly states that the VP is to act as President of the Senate.

              There are two possible resolutions :

              1. The Vice Presidency (and Presidency ) are not “Offices under the Unted States” – eg see all those Seth Barrett Tilman pieces slicing up the different versions of office etc in the Constitution, or
              2. The President of the Senate is not ipso facto a “Member” of the Senate. He’s just a guy who presides over their meetings and has a casting vote from time to time. You might compare with a company Board where the Chairman of the Board may preside over stockholder meetings, and may cast tie-breaking votes, even if he holds no stock.

              1. No, because the Vice President being president of the senate is in the text itself. Like the electoral college, it’s one of those things that would be unconstitutional if it hadn’t been written into the text of the Constitution itself.

            3. The answer, as noted below, is that there is some text. It’s just not in the 25th Amendment, it’s in Article I.

        3. Krychek : I just read the 25th Amendment and, surprise surprise, it’s silent on the issue. So any arguments either for or against are extra-textual.

          I’m not sure you’ve cracked this textual thing. The Vice President is the Vice President for his four year term to 20 January, as per the text of Article II and the 12th Amendment.

          If the 25th Amendment is silent on the question of whether the VP stops being VP while he’s acting as President, that means the text 100% supports the view that he remains as VP. Because given that he starts as VP, in order to change that, you need some text saying so. The argument is not “extra-textual” it’s textual. There’s no text, therefore there’s no argument to depart from the status quo ante.

          There’s no text on the question of whether to be elected President, you must be over 6 feet tall. But that doesn’t mean that the argument between those who hold that you must be over 6 feet, and those who disagree, cannot be decided strictly by reference to the text. There’s no such requirement because there’s no text imposing one. We do not say, “no text at all – that’s a hard one. Let us search our rear ends for some unspoken intent.” We say – “no text means no rule.”

          The best legal argument that occurs to me is that he is only permitted to hold one office at a time.

          Says who ? Can you not be a District Judge for the Eastern District of Wisconsin, and a District Judge for the Western District of Wisconsin at the same time, if so nominated, consented to and appointed ?

          Moreover when we come to Acting Officer stuff, my recollection was that Richard Grenell was only eligible to act as DNI because he was already serving in another Senate confirmed office – Ambassador to Germany.

          1. As I read Article I, Section 2, Clause 5, if the Vice President is acting as President, the President pro tem is the Senate’s presiding officer, not the Vice President.

            1. Yes, that looks right (though I think you mean Section 3.)

          2. Lee, Article II governs what happens under normal circumstances. This would not be a normal circumstance. And there are plenty of circumstances under which a vice president’s term does not extend to January 20: If he dies, resigns, is impeached, or succeeds to the office of president. Or simply abandons his post.

            Think of it this way: If I say that it takes two hours to drive from Orlando to Tampa, everyone understands that I really mean it takes two hours under normal circumstances. If I have a flat tire, or an accident, or engine trouble, or a heart attack halfway there, or get held up for an hour in construction, I’m not going to get there in two hours.

            Likewise, the VP’s term ends on January 20 under normal circumstances.

            1. No, I think DACinIN has the answer (see above.)

              The VP remains VP, but loses the power to preside over the Senate while he is acting as President.

    2. What effect would Article I, Section 3, Clause 5 have on an VP being an Acting President? It says:

      “The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.”

      So would the VP having the powers of the Presidency, but not holding the office (i.e., being Acting President), count as his “exercis[ing] the office of President of the United States” and thus not being President of the Senate at that time? If yes, then a VP would not be able to cast a tiebreaking vote in the Senate, or even preside over the Senate, while he is Acting President.

      1. Right, so Grassley acts as the President of the Senate, but there’s no tiebreaker for a 50-50 vote. Presumably this means that in the event of a tie, the motion fails. (What happens when there’s a tie vote in the House or if Pence isn’t around?)

  7. Tested how positive, what test, presumptive symptoms, antigens Ag, antibodies Ab, at what titer? Inquiring intelligent minds want to know.

  8. These questions are the risks of electing Boomer Septuagenarians however proven capable. It is unfortunate that the kids are so immature. They’re going to have to leave mommy’s apron strings sooner than later.

  9. And this is what’s known as “burying the lede”. Not very deep, thankfully.

    Convalescent plasma. He and Milania are almost certainly going to be fine.

    1. This is the new miracle cure, eh? What are we up to, 4? 5?

      Odds are still good even given the comorbidities, but certainly is absolutely a silly thing to say.

      I do notice Trump calls it Covid now, and no longer the Chinese Virus.

      1. No, convalescent plasma is an OLD ‘miracle cure’. The main downside is that you can never deploy it on large scale because you need to get it from people who just recently recovered from the illness you’re using it to treat.

        It doesn’t “scale”.

        Works just fine, though, so long as you still have a reasonably functional immune system.

        1. Headline : FDA chief apologizes for overstating plasma effect on virus

          “Responding to an outcry from medical experts, Food and Drug Administration Commissioner Stephen Hahn on Tuesday apologized for overstating the life-saving benefits of treating COVID-19 patients with convalescent plasma”

          “Hahn had echoed Trump in saying that 35 more people out of 100 would survive the coronavirus if they were treated with the plasma. That claim vastly overstated preliminary findings of Mayo Clinic observations”

          “Hahn and other Trump administration officials presented the difference as an absolute survival benefit, rather than a relative difference between two treatment groups. Former FDA officials said the misstatement was inexcusable, particularly for a cancer specialist like Hahn”

          Inexcusable, but understandable. A man half-doctor & half-politician shared a stage with a carnival barker. His doctor side went into remission. Are you more than excessively gullible to hucksterism, Brett?

          https://apnews.com/article/a7f0e8aac34a860ad502912564681b7c

          1. That only addresses half of Brett’s point. The other half being it is not a new idea.

            The true historical origin of convalescent plasma therapy

            It was possible to get the original article by Cenci [12], published in 1907 in an Italian pediatric journal (Fig. 1 ). The author was a public health doctor working in a small town of Central Italy near Perugia (Campello sul Clitunno, about 1,800 inhabitants in the early twentieth century [13]). Starting from the observation that, once cured of measles, it is very unlikely that a patient will fall ill a second time, and thus presuming the existence of some serum protective factor, during an epidemic outbreak in 1901 Cenci practiced a bloodletting of 600 mL to a 20-year old man, three weeks after recovery from measles. After blood coagulation, he collected serum in three sterilized tubes, adding a solution of phenic acid as a protective agent. The convalescent serum was then inoculated to four children aged between 4 and 8 years, who did not contract measles after this treatment, unlike their cohabitant siblings. It has to be noticed that, to ensure safety of the product, 60 h before administration to patients, a portion of serum was inoculated into the peritoneum of a rabbit and also into the arm of Cenci himself, without this causing general or local reactions.

            Of course, from this, it’s more an immunization technique than a treatment for the already sick.

            1. Oh yeah, it deserves being seriously looked into.
              AIDS turned the scientific community off this idea way more than it should have.

              It does not deserve being touted as a miracle; that doesn’t help anyone.

              1. From grb’s link:

                “People who received plasma with the highest levels of antibodies fared better than those given plasma with fewer antibodies, and those treated sooner after diagnosis fared better than those treated later.”

                I think we can assume that, for the President and his associates, they’ll get the highest antibody level plasma, and be treated immediately after diagnosis.

                1. The FDA made the decision based on data the Mayo Clinic collected from hospitals around the country that were using plasma on patients in wildly varying ways — and there was no comparison group of untreated patients, meaning no conclusions can be drawn about overall survival

                  Convalescent plasma is a century-old approach to treating the flu, measles and other viruses. But the evidence so far has not been conclusive about whether it works, when to administer it and what dose is needed.

                  Brett, don’t push crappy science based on a single, uncontrolled non-clinical study.

                  I think this is an area crying out for research; jumping directly to human benefits is something you know better than.

                  1. You’re even pushing a mechanism of action that is entirely theoretical.

                    FFS.

                  2. Sarcastro, I studied human biology in college, I know enough about the immune system to understand that it would be freakish if convalescent plasma DIDN’T work. In fact, it has a history of working.

                    It’s never gotten a lot of intense research because, as I said, it doesn’t scale. And pharmaceutical companies aren’t going to invest a lot of money in something that both doesn’t scale, and can’t be patented.

            2. Basically it’s a temporary immunity transplant: One of the ways your immune system recognizes an infection is by antibodies binding to something on the infectious agent. They don’t have to be YOUR antibodies for this to work.

              But it’s only temporary, because it goes away as soon as the donated antibodies do, you’re not producing any yourself.

    2. One wonders if he will stop ridiculing Joe Biden for wearing masks.

      1. The president — and those around him — apparently rejected masks at events after Hicks’ infection became known to the president.

        Belligerent ignorance is difficult to change.

      2. Your comment assumes that there is evidence that wearing a mask would have prevented the infection. The hard evidence for such a claim remains distressingly weak.

        1. Are you an epidemiologist? Because the people who are seem to be near unanimous that you are mistaken. What do you know that they’ve missed? And how is it that people who do epidemiology for a living managed to miss it?

          1. Wait, I forget. Which side am I on? I need to know so I can state ex cathedra plasma and Chloroquine work and masks do not, or vice versa

          2. There are scores of studies going back decades that indicate masks do not have any utility at all for preventing the spread of respiratory viruses like COVID. That’s why initially Fauci, the WHO, and all “the experts” were not recommending that people wear masks.

            Of course, virtually nobody particularly cared about the issue before COVID. Now, even though the weight of the evidence suggests that masks do not have any utility, there are of course a few studies that suggest they do. Most of these studies came about after COVID. Around the time that Dr. Fauci reversed himself and the CDC reversed themselves and public policy began to shift, I looked at those studies and they were pretty weak.

            But regardless, the situation we have is basically 3 things happening, broadly speaking.

            1. You have an ill-defined precautionary principle being applied. So you’re saying there’s a chance. There is some chance, maybe it helps. So let’s do it.

            2. The average gullible dimwit just looks at the latest “experts say” headline, or “new study says” headline, from CNN or whoever, and then that’s the end of their belief formation on the matter. Almost like a computer being programmed. No question whether that headline presents the full truth and context of the matter.

            3. Most commonly, most people couldn’t care less about wasting any electrons thinking about it. Just follow the rules. Sure, it may be slightly irritating, but it’s a minor inconvenience and you don’t suppose you have the power to change it anyway. Life is full of more important demands on your attention or more pleasant opportunities for your attention.

            There are a few sub-elements to this. 1.a. People want action, they want placebo. “Do something!” They want to be directed and herded like cattle. Feels good, man. 1.b. Some people want to be doing the directing. “Aha, here’s an opportunity for me to beat people over the head for their own good. Because I am good. I help. Mommy always said I was special and gonna change the world.” Feels good, man.

        2. Evidence, schmevidence. We Know They Work.™

          1. Except back in March. Then they didn’t work.

            Also you can’t get Covid at a protest thanks to the magic of diversity.

            1. Has anyone actually said that you can’t get Covid at a protest rally, or are you just making that up?

              1. No, they haven’t had the gall to actually say that. Contact tracers have been ordered not to ask about protest attendance, though, (And, no, not just in NYC.) so if you did get it at a rally, it wouldn’t be recorded as having been gotten there.

                1. There is massive disregard of mask mandates nationwide. People who don’t want to comply simply aren’t. The president has had mass rallies in which nobody masked or socially distanced. Churches are disregarding it. Walk down any sidewalk and you’ll pass people who aren’t being masked.

                  So the BLM scofflaws are basically being treated the same way all the other scofflaws are being treated. There have been a few cases of people being ticketed for not wearing masks, but for the most part, it’s self-enforcing. Which means no real enforcement.

        3. Again, wearing a mask (with the exception of medical-grade masks) is not about eliminating the risk of your infection.

          It’s about reducing the risk of transmission. Does it reduce it 100%. No. It does reduce it.

          If everyone is wearing masks, then the risk of transmission is greatly reduced. Therefore, the spread is greatly reduced. Which, for an infectious, airborne disease, matters a great deal.

          The shorter version is that wearing a mask is about protecting you, not just me.

          The shortest version is stop being an a$$h0le.

          1. And here is a somewhat longer version: Over the years, I have periodically encountered non-lawyers who were convinced they knew more about the law than the lawyers and the judges. Kind of like how Trump knows more about ISIS than the generals. In fact, I have a former client doing a 30 year prison sentence because he thought he knew more about the law than I did.

            And it’s the same thing here. Oh, what could the professionals possibly know about Covid transmission; they just study it for a living. Everyone knows a lay person’s ignorance trumps an expert’s years of study and research.

            And since this is America, uninformed laypeople are entitled to believe what they want, and for the most part they’re entitled to act on what they believe. Except that in this case, that ignorance and stupidity is killing people. In large numbers. So please stop.

            1. Everyone knows a lay person’s ignorance trumps an expert’s years of study and research.

              Pray show us the “years of study and research” on masks that concluded they had a meaningful effect on transmission of respiratory viruses. This meta-analysis in the May 2020 edition of Emerging Infectious Diseases concluded (somewhat amazingly) that the results of “studies” pumping droplets through pieces of material in closed laboratory conditions don’t translate into real-world scenarios:

              Although mechanistic studies support the potential effect of hand hygiene or face masks, evidence from 14 randomized controlled trials of these measures did not support a substantial effect on transmission of laboratory-confirmed influenza.

          2. It’s about reducing the risk of transmission. Does it reduce it 100%. No. It does reduce it.

            If everyone is wearing masks, then the risk of transmission is greatly reduced. Therefore, the spread is greatly reduced.

            It’s interesting that you chose to respond to a post stating “[t]he hard evidence for such a claim remains distressingly weak” with nothing but conclusory handwaving.

        4. Pandemic management tips from birther-class, superstitious clingers are always a treat.

    3. Looks like in the studies without placebos, convalescent plasma reduced death and/or most severe symptoms by about a third. I don’t understand how you get from “risk is reduced by a third” to “almost certainly going to be fine”.

      In any case, there’s “eventually fine” and “fine when it matters”. If Trump’s case took a similar arc to Boris Johnson’s, then he’d go into the hospital on October 11th, be discharged on October 17th, and not be able to resume work until November 7th. Boris Johnson seems to be fine, but he’s probably pretty glad there wasn’t an election on April 23rd.

  10. The answer here is so obvious I don’t understand why it merits discussion.

    If President Trump dies in office, then Vice President Pence becomes President for the duration of his term. And if the Senate confirms her before January 20 at noon, President Pence will complete the job and appoint her.

    On the other hand, if Barrett is not confirmed before the term ends, Biden will retract the nomination and nominate someone else, just as Trump did with Merrick Garland.

    1. “President Pence will complete the job and appoint her.”

      The Senate completes the job when they confirm. There’s no further Presidential role after that.

      1. That’s not true. The president still needs to sign the commission.

        1. The only reference to a “commission” is recess appointments. It’s not mentioned for regular appointments, only nomination and confirmation.

          Got any cases where the President nominated somebody, the Senate confirmed, and then they didn’t get seated due to the President not signing something?

          1. Is that question restricted to Supreme Court Justices? There was that whole Marbury thing.

          2. I’m talking about the way things are done procedurally. In practice, the president sends the Senate a name, the Senate confirms, and the president then signs the commission. Once confirmation has taken place, the president then makes the appointment by and with the advice and consent of the Senate by signing the commission. Unless and until the commission is signed, the nominee is not a judge.

  11. Should Trump quit the campaign, and let Mike Pence lead the ticket, to avoid any unsettled situations?

    1. Doesn’t matter what he should do. He’s definitely not going to do that.

      1. Neither is John Roberts going to resign from the Supreme Court.

  12. Trump is NOT dead yet. In fact, he isn’t even (reportedly) all that sick. Most people don’t get very sick from Covid. Trump is old and fat so his chances of developing advanced symptoms is higher, but still just like many Presidents have effectively governed while recovering from surgery or recovering from illness Trump can still do so.

    My hope is that people, everywhere of every political persuasion, finally take this seriously.

    1. “My hope is that people, everywhere of every political persuasion, finally take this seriously.”

      On this, I agree 100%.

      ….I mean, you do agree that it would have been preferable to get leadership to take it more seriously, right? That tends to trickle down to other people.

      1. There is plenty of blame to go around from our “leadership” from those who discouraged masks in the early days, to those who inflated something as simple as an experimental application of a drug to a huge political dust storm, to lockdowns that lost purpose and failed to acknowledge real concerns, to encouraging protests that thank God didn’t turn into super spreader events, to…. well I think you get my point.

        1. Sure, you can always “both sides” this. There is always fault to go around.

          But … we normally look to the President during times of crisis. Right? So, perhaps it would be productive to think of the ways that the administration might “finally take this seriously.” After all, “elections have consequences” and it’s been somewhat bizarr-o world to keep seeing people not understand that they have the power, yet everyone else is to blame.

          Just look at what you wrote at the beginning- discourage masks in the early days. Yes, that was a mistake! One that could have been easily rectified from the bully pulpit! And yet … we are now in October, and we have Trumpists in this very thread complaining about masks. And I see it my town (as I am sure you see it in yours).

          1. It was far more than Trump. Did you forget that the media was basically making fun of “preppers” who were wearing N95’s during the early days and basically accused them of endangering health care workers because they were using valuable, scarce masks?

            1. That was a screw up. It’s telling how you need to go back to March to find something to harp on.
              It was not the purposeful neglect and stealing in lieu of coordination that we’ve seen from the WH

              1. Well no I don’t. It was stupid to encourage mass protests because it was political convenient but tell Churches they can’t even have outdoor services. That was May, June, and July. It was dumb to tell everyone lockdowns would last for weeks but then take four months to restart the economy. It was completely unacceptable for the media to “blame Trump” when really leadership should have been focused on Governors some of which (regardless of party) were doing fine and others which took the chance to pass their failures up to Trump. Do you want me to keep going?

                1. So …. it’s everyone but Trump.

                  Every single person is to blame for COVID, and for the failure (largely by Trumpists now) to wear masks, except Trump.

                  Got it.

                  It’s the flat earth, man. Even when you find one that thinks mask wearing is good, it’s …. I can’t even.

                  1. Yes it is a WHOLE TON of people other then Trump. Stop simply blaming Trump. Plenty of lessons to be learned here and we should be honest with ourselves about that.

                    1. “Stop simply blaming Trump.”

                      ….Trump …. is …. the …. President … of … the … United …. States.

                      He takes credit for everything. You’ve noticed that, right?

                      Does he not have any responsibility for not just the country in general, but the specific things he has done that you know are bad (like masks, and continuing to advocate that people take unproven cures, and so on)?

                      He’s the anti-Truman; the buck always stops with someone else, right?

                    2. The President of the United States is not the emperor of the free world. You are completely ignoring that our federal system relies upon states and local governments for much of disaster response.

                    3. “The President of the United States is not the emperor of the free world. You are completely ignoring that our federal system relies upon states and local governments for much of disaster response.”

                      I’m not ignoring it.

                      But this is the same dodge; the President takes all the credit, and yet none of the blame. There are things the President can do, that he has failed to do.

                      I have the capacity to angry at my governor and my President for the COVID response.

                    4. Look if you want to blame Trump for everything go ahead. No one is going to stop you and there are plenty of people who will whole heartedly agree with you.

                      If you want to learn anything though from this entire pandemic, you are going to have to look past that though and acknowledge there is a lot of things that should have been done differently and must be done differently if this keeps on going for another year or ever happens again.

                    5. “Look if you want to blame Trump for everything go ahead. ”

                      I don’t blame everything on Trump.

                      Again, I just am amazed that you can’t find it within yourself to say, “Yeah, Trump really messed up the mask thing.”

                      Really, I am amazed that you can’t find a single thing that Trump has done wrong!

                    6. You just finished blaming everything on Trump. And you failed to read the whole paragraph where I talked about how I wish Trump made a stronger statement about masks.

                    7. You apparently can’t read.

                      I don’t blame everything on Trump. I’ve written that multiple times. I do think that Trump, as the President of the United States, takes responsibility for the overall response to the pandemic here, which has been poor (IMO). In addition, the President has the unique ability to communicate (the “bully pulpit”) and to model behavior, and I think Trump has misused it to promote conspiracy theories, to promote anti-mask propaganda, and to hype “miracle cures” that don’t pan out as well as wishful thinking (it will go away in the summer, etc.).

                      But he is not responsible for localities choosing to open or not to open, or for my idiot governor (for example). He did not pressure WHO into their original bad decision regarding masks- that was on them.

                      It is wonderful to watch the cognitive dissonance in action.

                      “Masks are good. But Trump is good. So …. people who don’t like Trump are bad? YES! THAT’S IT! Stupid media.”

                      Heh.

            2. Did you not even red what I wrote? Try again-

              “Just look at what you wrote at the beginning- discourage masks in the early days. Yes, that was a mistake! One that could have been easily rectified from the bully pulpit! And yet … we are now in October, and we have Trumpists in this very thread complaining about masks. And I see it my town (as I am sure you see it in yours).”

              Sure, mistakes were made; they always will be. You can’t demand perfection. But the President of the United States has access to not just the best information, the best specialists, but also the ability to command the media whenever he needs to.

              So tell me, since March, what has the President been doing to make sure that the pro-mask message has been getting out loud and clear to the nation? To ensure that not just the nation, but specifically his many supporters, understand how important masks can be?

              1. You are trying to pigeonhole this discussion to masks because that fails to address all the massive failures across the board and is politically expedient for your purposes.

                There is more going on to public health policy then masks and when/where should they be worn.

                1. “You are trying to pigeonhole this discussion to masks because that fails to address all the massive failures across the board and is politically expedient for your purposes.”

                  No, I was genuinely surprised to see that you (given your posting history) were in favor of taking COVID seriously, and were in favor of wearing masks.

                  I just didn’t understand how someone could possibly be in favor of masks, and not be at least a little unhappy with the performance of the President on that issue. And I found the answer.

                  1. I’ve always posted that people should wear masks when in public and around others. Also, have consistently said avoid large crowds. These things are not “scams”.

                    I would have liked it if Trump wore a mask and was a little more serious about it. But I am not under the completely false impression that everyone would have lined up for mask compliance had he done a big PSA about it. In fact, I wonder if the media would have just defaulted to the “Orange Man Bad” response to it.

                    Stop being disingenuous about this whole thing. I get it. A lot of people don’t like Trump. They would like to blame him for everything. But those blinders are not going to help us get through this.

                    1. Oh, stop Jimmy.

                      Look at just this thread. The pernicious anti-mask information isn’t being pumped out by “Orange Man Bad” people; it’s people that have followed Trump’s lead. It’s because Trump has aided and abetted this nonsense with his words and his actions for months; as you know, as recently as Tuesday, Trump’s family and guest refused masks at the debate while the rest of the crowd wore them.

                      It goes on and on and on. The people above who are complaining about masks are Trump supporters. In my town, the belligerent jerks getting tossed out of establishments because they won’t wear masks are Trump supporters. Not wearing a mask (and being loud about it) is probably the easiest “marker” of Trump support.

                      Which is why I was surprised by your opinion which is laudable; I just can’t square that opinion (that wearing masks is good) with your apparent blindness to the fact that the schism that exists in our country regarding masks is being driven by one person in particular.

                    2. And if you read my initial comment you will get to the crux of my theme. This is being driven, like much of this pandemic, by politics and a lot of it by “anti-Trump” politics.

                      Masks are a small (important) component of an effective response. Wearing one significantly reduces (but does not eliminate) the chances you spreading Covid if you are infected. Depending on the mask type it might also reduce the chance of you becoming infected, but that is completely secondary to the reduction in transmission.

                      I’m not going to get into the politics of mask and anti-mask. There is a lot there to unpack. All I will note is that in “protest politics” (which is what I would classify most anti-mask actions as) rebeling against the proposed system of order is what happens. Plenty of examples of stupid behavior performed using this type of political theater.

                    3. Had Trump done what any other president would have done – rallying the nation together to overcome the crisis by 1) setting national policy, 2) tapping experts in science and business to hash out the best counter measures (including masks), 3) coordinating the supply of equipment, 4) creating a broad testing capability and 5) continuously updating the people with information, he would have also been a big winner politically. Instead, we got mostly self-serving behavior with the occasional sound policy when it was impossible for Trump to look the other way.

                    4. “And if you read my initial comment you will get to the crux of my theme. This is being driven, like much of this pandemic, by politics and a lot of it by “anti-Trump” politics.”

                      But again, this isn’t. As you correctly note, masks are an important component of an effective response; I would quibble with your point about it being “small.” When you are dealing with a contagious airborne disease, every reduction in the rate of transmission matters a huge amount (reducing the R0 – r naught); this is how you get the spread low enough that you can do effective contact tracing and eventually snuff it out.

                      Ignoring the many faults of the administration which a person can quibble about (because I’m sure we’d have different opinions), you can look at the very simple one; the use of the Presidential power as a bully pulpit. In other words, has Trump effectively communicated correct information to the nation regarding COVID on a timely basis?

                      On that aspect, something entirely within his control, I would say (and I think you can agree) he has been a dismal failure. Not the media coverage. Not “orange man bad.” Trump’s own words, actions, and decisions regarding simple things like communicating about masks, or hyping cures, or giving out false and misleading information (it will disappear shortly, etc.).

                      An emergency, a pandemic, is one of the main events where it is possible to put politics aside and look for reliable information. On that front, we have been failed. And the failure is evident every day, and can be seen in this thread and many others.

                      Now, given your priors, you are welcome to say that you just like him and his policies, etc., but I find it remarkable that you can both see that masks are good, and not see Trump’s particular divisive influence on that exact subject.

                      But hey, color me unsurprised, I guess.

                    5. So there you go blaming Trump for everything again. Those must be some pretty good partisan blinders you have on.

                    6. Wow, you are truly a moron, aren’t you?

                      I will type this slowly so you can understand it.

                      I only wrote about his use of the bully pulpit. Which is something within his control. Not “everything.”

                      But hey- can’t stop a Trumper from Trumping, can you?

                    7. A “bully pulpit” is limited to communications efficiency. But you seem to give it the role of some omnipotent god-like position. Do you want me to type it really slowly so you can read it:

                      TRUMP-COULD-HAVE-DONE-A-BETTER-JOB-BUT-THAT-IS-HARDLY-THE-ONLY-FAULT-HERE.

                      Does that finally come through?

                      Many of the failures are on the policy level which came out of the States. A lot of the leadership failures were also Governors. To be fair, almost everyone was making it up as they were going since we haven’t had a pandemic of this kind in modern times.

                      This is not as simple as “oh if we all just wore masks no one would get Covid…” That is excessively stupid and droning on and on about Trump and masks just shows how stupid this whole discussion has become.

                    8. Josh R : “Had Trump done what any other president would have done …….. he would have also been a big winner politically”

                      Exactly. Politicians usually benefit from a national crisis, but Trump has looked much worse. The obvious reason is Trump’s inability to focus on details & substance; he lacks the self-discipline for determined effort & rigorous work; he has the attention span of a toddler.

                      But maybe there’s another factor as well : Despite all predictions, I’m guessing Trump thought the pandemic would stay centered in large cities and densely populated states. In short, it would remain a problem of Blue America. He could downplay the severity of the crisis because his rural political base would be mostly unscathed. Those people suffering would be blamed on the Democrats. For a president concerned exclusively with perception, branding and PR, this was ideal. He would stay above the fray. He didn’t need to demand unpopular sacrifices. He didn’t need to put in any hard work.

                    9. I don’t think he initially took it seriously because it wasn’t a sure thing that Covid was going to go global. The economy was going gangbusters and if he talked up a potential pandemic it really could have scared everyone and later been a “boy who cried wolf” type incident. Also don’t forget that when he put into place initial travel restrictions the media, instead of being supportive, called him a racist and so did Biden. That in of itself help reinforce his take that zero effort should be dedicated to Covid in the early days.

                    10. “A “bully pulpit” is limited to communications efficiency. But you seem to give it the role of some omnipotent god-like position.”

                      Nope.

                      I just see the evidence before me every single day. Heck, every single thread.

                      You, on the other hand, are somehow even less forgivable than the Dr. Ed’s of the world. He drinks the kool-aid and asks for more. You just drink the kool-aid and keep saying, “Why do those horrible people keep forcing Trump to give me kool-aid?”

                      It must be so hard to be you!

                    11. I only skimmed the first 3 or 4 posts of y’alls back and forth. With that said, here’s my comment.

                      1. Trump followed the advice of his experts. Dr. Fauci said there was no big disagreement or difference between him and Trump.
                      When it comes down to it, he followed Dr. Fauci and the rest of the experts.

                      The Dr. Fauci who initially said don’t wear masks. The Dr. Fauci who then said wear masks, but then doesn’t do so himself as he sits right next to people in an empty baseball stadium watching a game that nobody else is allowed to come to. The nutty Dr. Fauci who said we probably should all need to wear GOGGLES.

                      2. All the shrieking lunatics (Trump killed 200k people!) can’t point to a single thing that Trump should have done differently that they can prove would have made any net beneficial difference. Not one.

                      3. Pelosi downplayed the virus. Biden downplayed the virus. And other Dems. Cuomo and Whitmer killed people in nursing homes.

                    12. Jimmy the Dane:

                      I don’t think he initially took it seriously because it wasn’t a sure thing that Covid was going to go global. The economy was going gangbusters and if he talked up a potential pandemic it really could have scared everyone and later been a “boy who cried wolf” type incident

                      Or perhaps he engaged in wishful thinking from the very beginning to right now because that is what was best for his personal, political interests.

        2. In addition to loki’s “the-buck-stops-here” argument, what focuses the discussion on Trump is the fact he allowed himself to be infected. A president who took who this seriously would demand that everyone he came in close contact with be tested before meeting with him. Yet, Trump made no such demand, which means at this very late date, he appears to be wishing it will just go away.

          1. Obama left Trump with a detailed plan. But Black Man Bad.

            1. This is completely unnecessary race baiting.

              1. Takes a baiter to see the baiting.

                And Jimmy is the master baiter.

                1. I prefer realist. Dropping actual facts on race is one thing. Having a non sequiter about it because you feel like stirring trouble is something else.

              2. Jimmy the Dane : This is completely unnecessary race baiting.

                1. Birtherism was also unnecessary race baiting.
                2.Provide us with another reason for Trump’s pathological obsession with Obama

                1. Asking for proof of citizenship is not race baiting. Or at least it isn’t when McCain was made to produce the same document. It is only “racism” because that is the only political lens the left has anymore.

                  His “obsession” with Obama might be there was eight years of a nasty mess to clean up and he doesn’t like the guy who left shit all over the place. Just my guess…

                  1. Jimmy the Dane : His “obsession” with Obama might be there was eight years of a nasty mess to clean up and he doesn’t like the guy who left shit all over the place. Just my guess…

                    Your guess, huh? Well we can take one thing from your lame answer. If Trump’s continuing mental breakdown re anything-Obama is caused by the “eight years of a nasty mess to clean up”, then image the debilitating rage Biden must experience!

                    Because Trump will leave a country in shambles; its White House / Justice Department / State Department and Commerce Department all reeking cesspools; its alliances strained to the breaking point; every democratic norm frayed by the antics of a dimestore buffoon; its people exhausted by the non-stop dumpster-fire freak-show.

                    Now that’s what I call a mess…….

                    1. If your only tool is a hammer everything looks like a nail…

                      If your only explanation for anything political is “Orange man bad” well then…..

                    2. There’s one thing I’ve never understood about you Right-types : You seem to think tossing out the shtick “orangeman bad” negates the evidence Trump is an embarrassing disaster.

                      Before you say “orangeman bad”, Trump is a pathological liar, both grossly narcissistic & insecure as an abused child, barely able to speak above grade-school-level, dumb as a box of rocks, lazy & hopelessly incompetent.

                      After you say “orangeman bad”, Trump is a pathological liar, both grossly narcissistic & insecure as an abused child, barely able to speak above grade-school-level, dumb as a box of rocks, lazy & hopelessly incompetent.

                      What is your catechism supposed to accomplish?

                    3. OK got it Orangeman Bad.

                      I’m not going to try to convince you otherwise because you have already drank the kool-aid and asked for seconds and thirds and fourths….

              3. “This is completely unnecessary race baiting.”

                As opposed to necessary race baiting?

          2. This is indeed surprising. I’d assumed that the anti-mask and “hoax” stuff was just bait for the rubes, but that in private Trump took precautions for himself. Apparently he’s been drinking his own kool-aid though.

            1. I’ve heard some of the White House protocols third hand so I won’t repeat them, but with Covid and people who as part of their job interact with the public it is hard to control this virus. That is why a lot of those infected are politicians and celebrities (or at least initially celebrities were in the big long list.)

              Testing is only a snapshot in time at the point it is taken. They are good for trying to get infected people out of the pool and limiting their impact in spreading. They are not a prevention tool.

              Same with masks. It is hard to effectively interact with the public while wearing them which is why politicians (of all political stripes) tend to not wear them casually (some will throw one on for the camera, but look at all the politicians in the background shots, no masks there.) And masks are only going to dampen the spread when you get into gatherings which is pretty much the job of being President.

              Many other heads of state have been infected with Covid, even some that probably took many more precautions. But the biggest risk to catching Covid is interacting with large numbers of people. If you fall into that risk pool chances are eventually you are going to get it. Probably the fact that Trump and others in the White House didn’t get it sooner was because of the precautions taken. But, inevitably if you congregate with lots of people day in and day out, you will probably get it.

              1. It’s possible Hicks tested negative before being in close contact with Trump. But if she was not tested, I think your thesis fails.

                1. The problem with testing and why public health officials stopped pushing for universal testing is that the test is only a snapshot of potential exposure up until about 3 days before the test is administered. It is at best a really bad lagging indicator. (It takes about three days from exposure to develop a viral load that will appear on most tests.)

                  If you engage the public then you experience probably dozens of potential exposure incidents a day. Perhaps if you are “lucky” the test will grab exposure close to zero hour when it occurred. But for most it will grab it maybe 1-3 days after the fact.

                  1. While your comments seem reasonable, they don’t excuse not testing Hicks.

                    1. My point was Hicks might have been tested but it might have been in the window where she was infected but still testing negative.

                    2. I agree that is possible. But, it is also possible she wasn’t tested at all (she should be tested before every close contact with the president).

              2. “That is why a lot of those infected are politicians and celebrities (or at least initially celebrities were in the big long list.)”

                That’s goofy. You hear about public figures getting it more because they’re public figures. I haven’t seen any evidence that politicians or celebrities are getting Covid at a higher rate than the population at large.

  13. So what’s with the reports that Trump is already experiencing symptoms?
    Doesn’t it take like a week to incubate, and he was getting tested daily?

    Could be BS, could be he wasn’t getting tested, could be I’m missing something…

    1. It takes about three days from initial exposure perhaps longer depending on initial viral load and some other factors. Tests generally won’t indicate as positive until about day three after exposure (again varies depending on viral load and test type).

      Studies also show that initial symptoms are usually extremely mild and much like allergies or a common cold. It isn’t until day 3-5 after exposure that the big ones start showing.

  14. To me the most interesting thing about this post is that very short time between nomination, confirmation and commissioning for most of these justices.

    August 8, Nixon nominated Robert W. Warren he was confirmed by the Senate on August 22.

    July 9, 1963, Kennedy nominated William Homer Thornberry he was confirmed on July 15, 1963.

    1. The federal judiciary really didn’t get off the rails until the 70’s. The stuff in the 60’s especially early 60’s was pretty tame and limited to desegregation which was only unpopular in Southern States. The real crackpot liberal stuff started coming out of the courts around 1969.

    2. Those were district court nominations; much lower stakes and usually done in consultation with the home state senators.

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