Tag Archives: Phil Murphy

Nominate and Confirm

23 Wednesday Sep 2020

Posted by in Supreme Court

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Many on the left practically cheered the passing of Antonin Scalia in 2016, a reaction I witnessed with disgust on my own social media feeds. Now, we should all mourn the death of Ruth Bader Ginsburg, but some of the same people seem almost comically furious with her for “choosing such a bad time to die”, just 46 days before the presidential election! Or, for refusing to step down during the Obama administration, when she could have been replaced with a much more youthful lefty jurist.

Of course, the Left is also furious that President Trump plans to nominate a candidate for Ginsburg’s vacancy on the Court, and that Republican leadership in the Senate plans to bring the nomination to a vote, perhaps before November 3rd.

Trump and the GOP majority are entitled to do that under the Constitution, and they should. Senator Ted Cruz explained the primary reason:

“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you you know Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ and we cannot have election day come and go with a 4-4 court. A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.” 

This presidential election might be fraught with more procedural controversy than any before. The coronavirus, or its promoters in the media and the Democrat party, has spooked many voters into the belief that going to a polling place in-person on Election Day is too dangerous. This despite the fact that distancing and masks will be required, and the time it takes to complete a ballot does not require “prolonged exposure” to anyone. So now we face the prospect of mail-in balloting on an unprecedented scale, which is an invitation to manipulation and fraud. A couple of examples:

“… consider some of the suspect decisions already being made in various states that deliberately weaken ballot security. The Pennsylvania Supreme Court, for example, voted last week along party lines (the judges are elected) that county drop boxes, including unattended ones, could be used to collect votes. Gov. Tom Wolf, a Democrat, and his party supported the measure, which reached the court by lawsuits, thus avoiding GOP control of both legislative chambers. The decision obviously opens the door to potential fraud because ballots in unsecured drop boxes could be tampered with or stolen. 

New Jersey’s Democratic Gov. Phil Murphy also made some curious decisions. A Jersey friend sent me a mailer he received that was addressed only to ‘Residential Customer.’ Inside, a pamphlet from the county clerk in Bergen County said that a Murphy order ‘requires’ every county to mail a ballot to ‘every active registered voter.’ That raises the chances of thousands of unmarked ballots being stolen from the post office or front porches, practices not exactly unheard of in New Jersey.”

Already a number of lawsuits have been filed in various states over absentee ballots. There have been missed deadlines, disputes over whether certain candidates should appear on those ballots, invalidated pre-filled applications for ballots, and an incorrect mailer sent by the U.S. Postal Service to voters nationwide regarding absentee ballots. Let’s face it: for all the earlier denials by Democrats that the mail-in ballot process was not subject to gaming or fraud, neither side trusts the other. There will be many more disputes as ballots are counted before and after Election Day.

It’s reasonable to expect that a few cases might rise to the level of the U.S. Supreme Count before election tallies are final in some states, as in the Florida recount in the Bush vs. Gore election of 2000. A 4 – 4 tie on the Court would leave lower, state-court rulings in place that could decide the outcome of a federal election. That’s not how the process is intended to work. Needless to say, that’s another reason why Democrats oppose a Trump nominee prior to the election. There’s no doubt they’d push forward with their own nominee were the shoe on the other foot, however, just as Republicans opposed the confirmation of Merrick Garland in 2016.

So who’s a hypocrite? Republicans who said that they wouldn’t confirm or even conduct a confirmation process in an election year, as in 2016, certainly qualify (Lindsey Graham, among others). It must have seemed expedient to stay so at the time, but it was foolish. And Democrats who now protest after insisting in 2016 (and before) that a Supreme Court vacancy should be filled by the sitting president, even in an election year, also qualify (Chuck Schumer, Barack Obama, Hillary Clinton, and Joe Biden, among others). Here’s what some top progressive legal minds were saying in 2016: It’s a duty and obligation for the president to nominate and for the Senate to undertake a confirmation process!!

Here’s the key issue: The president has the authority to nominate Supreme Court justices any time during his term. If the Senate confirms, then a new justice is seated. If the Senate chooses not to confirm, the vacancy remains. That’s how it works. There have been 29 vacancies on the Court in election years, and in 22 of those cases the sitting president sent a nomination to the Senate. As Justice Ginsburg said in 2016:

“There’s nothing in the Constitution that says the president stops being the president in his last year.”

Her purported wish on her death bed, that her replacement would be chosen by a new president, was not hypocritical. It was a wish, not a legal opinion. It was just as “political” as the contradictory statements made by the politicians, however.

Ginsburg also said it’s the Senate’s job to take up a vote, which the Republicans refused to do in 2016. That was their prerogative, however, and the decision does not bind anyone in the current circumstance.

Mitch McConnell is right:

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”  

Democrats have promised to “pack the Court” by adding seats to the bench for new, ideologically-preferred justices if a Trump nominee is confirmed, among other threats. They should heed the caution of moderates who know how dangerous that may be. The mere threat gives Republicans reason to pack the Court themselves, when they can, which might be as soon as January. Moreover, nothing could do more to undermine confidence in the Court. RBG herself had the following to say about Court packing:

“Well, if anything, it would make the court appear partisan. It would be that one side saying, ‘when we’re in power, it was only to enlarge the number of judges so we will have more people who will vote the way we want them to…’ So I am not at all in favor of that solution to what I see as a temporary situation.”

Well, of course the Court is divided along certain ideological lines, and to some extent those differences break along dimensions of legal philosophy, such as originalism vs. a “living Constitution”, or judicial activism. That’s not to say that the Court is always partisan, however. The process of nominating and confirming justices should not be as partisan as it has become in the last 25 years (see the last link). Let’s not make it worse.

Trump will nominate an able jurist. Senators should meet and independently assess that individual’s legal qualifications and temperament. My expectation is they will vote to confirm, and I hope that vote takes place without rancor.

Note: Thanks to the Washington Free Beacon for the wonderful meme at the top of this post.

COVID Politics and Collateral Damage

26 Sunday Jul 2020

Posted by in Pandemic, Public Health

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Policymakers, public health experts, and the media responded to the coronavirus in ways that have often undermined public health and magnified the deadly consequences of the pandemic. Below I offer several examples of perverse politics and policy prescriptions, and a few really bad decisions by certain elected officials. Some of the collateral damage was intentional and motivated by an intent to inflict political damage on Donald Trump, and people of good faith should find that grotesque no matter their views on Trump’s presidency.

Politicized Treatment

The smug dismissal of hydroxychloraquine as Trumpian foolishness was a crime against humanity. We now know HCQ works as an early treatment and as a prophylactic against infection. It’s has been partly credited with stanching “hot spots” in India as well as contributing strongly to control of the contagion in Switzerland and in a number of other countries. According to epidemiologist Harvey Risch of the Yale School of Public Health, HCQ could save 75,000 to 100,000 lives if the drug is widely used. This is from Dr. Risch’s OpEd in Newsweek:

“On May 27, I published an article in the American Journal of Epidemiology (AJE) entitled, ‘Early Outpatient Treatment of Symptomatic, High-Risk COVID-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis.’ That article, published in the world’s leading epidemiology journal, analyzed five studies, demonstrating clear-cut and significant benefits to treated patients, plus other very large studies that showed the medication safety. …

Since [then], seven more studies have demonstrated similar benefit. In a lengthy follow-up letter, also published by AJE, I discuss these seven studies and renew my call for the immediate early use of hydroxychloroquine in high-risk patients.”

Risch is careful to couch his statements in forward-looking terms, but this also implies that tens of thousands of lives could have been saved, or patients might have recovered more readily and without lasting harm, had use of the drug not been restricted. The FDA revoked its Emergency Use Authorization for HCQ on June 15th, alleging that it is not safe and has little if any benefit. An important rationale cited in the FDA’s memo was an NIH study of late-stage C19 patients that found no benefit and potential risks to HCQ, but this is of questionable relevance because the benefit appears to be in early-stage treatment or prophylaxis. Poor research design also goes for this study and this study, while this study shared in some shortcomings (e.g., and no use of and/or controls for zinc) and a lack of statistical power. Left-wing outlets like Politico seemed almost gleeful, and blissfully ignorant, in calling those studies “nails in the coffin” for HCQ. Now, I ask: putting the outcomes of the research aside, was it really appropriate to root against a potential treatment for a serious disease, especially back in March and April when there were few treatment options, but even now?

Then we have the state governors who restricted the use of HCQ for treating C19, such as Gretchen Whitmer (MI) and Steve Sisolak (NV). Andrew Cuomo (NY) decided that HCQ could be dispensed only for hospital use, exactly the wrong approach for early stage treatment. And all of this resistance was a reaction to Donald Trump’s optimism about the promise of HCQ. Yes, there was alarm that lupus patients would be left without adequate supplies, but the medication is a very cheap, easy to produce drug, so that was never a real danger. Too much of the media and politicians have been complicit in denying a viable treatment to many thousands of C19 victims. If you were one of the snarky idiots putting it down on social media, you are either complicit or simply a poster child for banal evil.

Seeding the Nursing Homes

The governors of several states issued executive orders to force nursing homes to accept C19 patients, which was against CMS guidance issued in mid-March. The governors were Andrew Cuomo (NY), Gretchen Whitmer (MI), Gavin Newsom (CA), Tom Wolf (PA), and Phil Murphy (PA). This was a case of stupidity more than anything else. These institutions are home to the segment of the population most vulnerable to the virus, and they have accounted for about 40% of all C19 deaths. Nursing homes were ill-prepared to handle these patients, and the governors foolishly and callously ordered them to house patients who required a greater level of care and who represented an extreme hazard to other residents and staff.

Party & Protest On

Then of course we had the mayor of New York City, Bill De Blasio, who urged New Yorkers to get out on the town in early March. That was matched in its stupidity by the array of politicians and health experts who decided, having spent months proselytizing the need to “stay home”, that it was in their best interests to endorse participation in street protests that were often too crowded to maintain effective social distance. That’s not a condemnation of those who sought to protest peacefully against police brutality, but it was not a good or consistent recommendation in the domain of public health. Thankfully, the protests were outside!

Testing, Our Way Or the Highway

The FDA and CDC were guilty of regulatory overreach in preventing early testing for C19, and were responsible for many lives lost early in the pandemic. By the time the approved CDC tests revealed that the virus was ramping up drastically in March, the country was already behind in getting a handle on the spread of the virus, quarantining the infected, and tracing their contacts. There is no question that this cost lives.

Masks… Maybe, But Our Way Or the Highway

U.S. public health authorities were guilty of confused messaging on the efficacy of masks early in the pandemic. As Joel Zinberg notes in City Journal, Anthony Fauci admitted that his own minimization of the effectiveness of masks was motivated by a desire to prevent a shortage of PPE for health care workers:

“In discouraging mask use, Fauci—for decades, the nation’s foremost expert on viral infectious diseases—was not acting as a neutral interpreter of settled science but as a policymaker, concerned with maximizing the utility of the limited supply of a critical item. An economist could have told him that there was no need to misinform the public. Letting market mechanisms work and relaxing counterproductive regulations would ease shortages. Masks for health-care workers would be available if we were willing to pay higher prices; those higher prices, in turn, would elicit more mask production.”

Indeed, regulators made acquisition of adequate supplies of PPE more difficult than necessary via compliance requirements, “price gouging” rules, and import controls.

Bans on Elective Surgery

Another series of unnecessary deaths was caused by various bans on elective surgeries across the U.S. (also see here), and we’re now in danger of repeating that mistake. These bans were thought to be helpful in preserving hospital capacity, but hospitals were significantly underutilized for much of the pandemic. Add to that the fright inspired by official reaction to C19, which keeps emergency rooms empty, and you have a universe of diverse public health problems to grapple with. As I said on this blog a couple of months ago:

“… months of undiagnosed cardiac and stroke symptoms; no cancer screenings, putting patients months behind on the survival curve; deferred procedures of all kinds; run-of-the-mill infections gone untreated; palsy and other neurological symptoms anxiously discounted by victims at home; a hold on treatments for all sorts of other progressive diseases; and patients ordinarily requiring hospitalization sent home. And to start back up, new health problems must compete with all that deferred care. Do you dare tally the death and other worsened outcomes? Both are no doubt significant.”

Lockdowns

The lockdowns were unnecessary and ineffectual in their ability to control the spread of the virus. A study of 50 countries published by The Lancet last week found the following:

“Increasing COVID-19 caseloads were associated with countries with higher obesity … median population age … and longer time to border closures from the first reported case…. Increased mortality per million was significantly associated with higher obesity prevalence … and per capita gross domestic product (GDP) …. Reduced income dispersion reduced mortality … and the number of critical cases …. Rapid border closures, full lockdowns, and wide-spread testing were not associated with COVID-19 mortality per million people.”

That should have been obvious for a virus that holds little danger for prime working-age cohorts who are most impacted by economic lockdowns.

Like the moratoria on elective surgeries, lockdowns did more harm than good. Livelihoods disappeared, business were ruined, savings were destroyed, dreams were shattered, isolation set in, and it continues today. These kinds of problems are strongly associated with health troubles, family dysfunction, drug and alcohol abuse, and even suicide. It’s ironic that those charged with advising on matters pertaining to public health should focus exclusively on a single risk, recommending solutions that carry great risk themselves without a second thought. After all, the protocol in reviewing new treatments sets the first hurdle as patient safety, but apparently that didn’t apply in the case of shutdowns.

Even as efforts were made to reopen, faulty epidemiological models were used to predict calamitous outcomes. While case counts have risen in many states in the U.S. in June and July, deaths remain far below model predictions and far below deaths recorded during the spring in the northeast.

One last note: I almost titled this post “Attack of the Killer Morons”, but as a concession to what is surely a vain hope, I decided not to alienate certain readers right from the start.