All posts by Richard Pildes

“In a shift, GOP voters more confident in November elections”

From the AJC. Note this is a poll among Republicans:

The poll found that at least 60% of likely Republican voters are at least somewhat confident that the November elections will be conducted fairly and accurately, compared with one-quarter who are “not so confident” and 13% who are not at all confident.

In the AJC’s January poll, more than half of GOP likely voters doubted the integrity of the vote. Just 11% in that survey said they were “very confident” that the November election will be conducted fairly and accurately, while 32% said they were “somewhat confident.”

The two polls capture the shifting views of the GOP electorate ahead of a May 24 runoff dominated by Trump-backed candidates magnifying his election lies — and others who have echoed similar falsehoods.

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“Voting is Surging In Georgia Despite Controversial New Election Law”

Ned flagged this article earlier, mentioned it includes a lot of rich details, but used his post to turn to other issues. Given the controversies around the changes to Georgia’s voting laws over the last year, I thought it was worth including a significant excerpt from the Washington Post piece:

But after three weeks of early voting ahead of Tuesday’s primary, record-breaking turnout is undercutting predictions that the Georgia Election Integrity Act of 2021 would lead to a falloff in voting.By the end of Friday, the final day of early in-person voting, nearly 800,000 Georgians had cast ballots — more than three times the number in 2018, and higher even than in 2020, a presidential year….

Defenders of the law accused Democrats, including President Biden and Stacey Abrams, the presumed Democratic nominee for Georgia governor this year, of hyping accusations of voter suppression because it resonated with their base and helped them raise money. They say the turnout numbers prove that the rhetoric around the law was false….

The Election Integrity Act, also known as Senate Bill 202, unleashed a furious backlash when it passed. Biden called it “Jim Crow 2.0.” Abrams accused its authors of “reviving Georgia’s dark past of racist voting laws.” The clothing retailer Patagonia condemned the bill, and Major League Baseball moved its All-Star Game out of Atlanta….

But much of the rhetoric directed at the bill was actually based on draft legislation that was subsequently scaled back. Local and national organizations, including the Metro Atlanta Chamber of Commerce and Atlanta-based Delta Air Lines, had put enormous pressure on state Republicans to strip out some of the more contentious provisions. Republicans agreed to drop, for instance, language barring most Georgians from voting by mail and curtailing early voting on weekends. They even expanded early-voting hours in the final bill….

Some voters interviewed at polling locations said they were unwilling to take any chances with the new ID requirement. They opted to vote in person this year because they were afraid their ballot might be rejected under the new ID requirements. With drop boxes now required to be inside of polling locations rather than curbside, and accessible only during voting hours, it’s just as easy to vote in person, they said….

“Before the pandemic, Georgians voted in person at the same rate they’re voting in person now,” said Raffensperger spokesman Ari Schaffer. “What we’re seeing is a return to pre-pandemic normal. It may contradict the ‘voter suppression’ narrative but those are the facts.”…

Voting rights groups said they have stepped up their voter registration and education efforts to ensure that Georgians know how to vote under the new rules and are not afraid to do so. With 95 percent of eligible voters actually registered, Georgia currently boasts the highest registration rate in the nation, and voting groups take some of the credit for that.

The requirement that prohibits third-party groups from distributing food or water to voters waiting in line drew sharp criticism last year. Activists are gearing up to work around that rule by setting up tables away from long lines and encouraging voters to step off the line — and for their neighbors to hold their places — if they are hungry or thirsty or weary of standing.

Voting-rights groups and Democrats say they have changed their strategies to mobilize voters under the new rules. In Spalding County, for instance, local activists moved Souls to the Polls to a Saturday, and they defiantly promised that they would work twice as hard if that was what it took to protect voter access.

It’s too early to judge how the new law is going to affect the absentee ballot process. But the overall level of absentee voting appears to be going back to just a bit above its pre-pandemic level in GA. That’s because the controversial law expanded early voting opportunities, and partly because there appears to be fewer virus-related anxieties about voting in person at early voting sites, which will probably extend to in-person voting on Election Day as well.

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“The Good That Ted Cruz’s Win Can Do”

David Frum in The Atlantic has a good piece on yesterday’s decision in FEC v. Cruz. The piece concludes by arguing that the focus of campaign-finance reform these days ought to be how to put candidates and their campaigns, rather than super PACs, in charge of their campaigns. Frum here echoes a view many campaign-finance experts, myself included, have been arguing for many years. Frum does not make this point, but it was the McCain-Feingold law, well before Citizens United, that initially triggered the dramatic rise in outside spending by cutting off the flow of what was called “soft money” to the political parties. Instead of that money disappearing, it flowed from the parties to these outside groups. Citizens United then compounded this development.

From Frum’s piece:

In the 2020s, the big news in campaign finance is not what’s happening inside campaigns but what’s taking place outside and around campaigns. As so often in U.S. campaign-finance history, the unintended effects of reform are crushing the intended ones.

In a world of enormously potent and enormously unregulated super PACs, perhaps the FEC’s old focus on policing campaigns has become obsolete, even counterproductive. The question for today may be: How do we put candidates back in charge of their campaigns and restore their responsibility rather than allow them to take refuge in the deniability of secretive, overly mighty super PACs?

With an election campaign, at least you know who is answering to whom. That may not be much. But it’s better than the world we’ve been building since McCain-Feingold became law.

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Dramatic Increase in Competitive Districts in Special Master’s NY Map

As a proponent of competitive districts, I’m often asked how much the decline in competitive districts is due to intentional gerrymandering versus the realities of political geography, in which metro areas have become highly Democratic and rural areas highly Republican. The Special Master’s proposed congressional map for NY provides interesting insight into that issue. Under that map, NY would have 8 competitive districts. Under the map the legislature proposed, there would have been only 3 competitive districts.

Every state’s political geography is different, of course. But this shows that, at least in NY, it is possible to create maps that split fewer counties and have more compact districts than a legislatively-drawn partisan gerrymander — while still creating almost three times as many competitive districts.

Incumbents do not want competitive districts: they want to be in as safe seats as possible. The political parties do not want competitive districts (unless that’s the best they can do in certain contexts): competitive races are more costly and create uncertainty.

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“Where megadonors are spending big money to shape the Democratic Party’s future”

When the main elections that matter are the primaries — from Politico:

House Democratic primaries are drawing record cash — even as they’re almost guaranteed to lose their majority.

Super PACs and other organizations have already dropped more than $53 million in Democratic House primaries this year, according to OpenSecrets, with four more months of nominating contests to go. The outside spending has zoomed past the approximately $30 million spent in each of 2018 and 2020, much of it focused on safely blue seats, where different wings of the Democratic Party are battling to elect primary winners likely to go to Congress — and stay there for years.

The combatants include everything from industry groups to progressive organizations like Justice Democrats and the Working Families Party — and, especially, super PACs backing more moderate candidates, like one formed by AIPAC and another supported by LinkedIn co-founder Reid Hoffman. Even with Democrats likely to be in a relatively powerless House minority next year, they are trying to shape the future of the party in Congress to a degree not seen before….

There’s far, far more spending than we’ve ever seen before and that’s for two reasons,” said Mark Mellman, a Democratic pollster who is working with the Democratic Majority for Israel super PAC, which has dropped cash backing candidates in Ohio, Pennsylvania, North Carolina and Texas. “One, because the number of competitive districts has declined dramatically, most members are now selected in primaries, so primaries become more important. Second, people looked at Ohio’s 11th special [in 2021] and said, ‘it’s possible to intervene and really make a difference.’”…

Hoffman is among the big Democratic donors also wading into a pair of upcoming House primaries, under the banner of a super PAC called Mainstream Democrats. The group is boosting a pair of moderate incumbents, Reps. Kurt Schrader (D-Ore.) and Henry Cuellar (D-Texas), in their primary challenges from the left.

“Democrats and Democrat-aligned groups are finally catching up with Republicans in understanding the importance of electing the strongest candidates in primaries,” said Morgan Jackson, a longtime Democratic strategist.

Of course, Jackson added, “depending on who you’re talking to, the ‘strongest’ candidate changes.”

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Polarization and State Legislative Elections

New study from Sandy Handan-Nader, Andrew Myers, Andrew B. Hall. Abstract:

U.S. state legislatures are critical policymaking bodies and the major pipeline of candidates to national office. Polarization in state legislatures has increased substantially in recent decades, yet we understand little about the role of elections in this process. We offer the first systematic study of state legislative candidate ideology across all election stages using a new dataset on primary- and general-election results for over 84,000 candidates, 1992-2020. To measure candidate ideology, we use machine learning to predict roll-call-based scores of ideology from millions of campaign contribution records. We find that the pool of candidates has polarized substantially in recent decades, while electoral competition has been consistently low. More-extreme candidates have enjoyed a modest advantage in contested primaries, and this advantage has doubled in the past decade. More-moderate candidates previously enjoyed an advantage in contested general elections, but this has shrunk to nearly zero in the last decade. The results indicate a shifting equilibrium in which more-extreme candidates increasingly seek office, win primaries more often, lose general elections less often, and face limited competition, driving the rise in state legislative polarization and generating a more-extreme candidate pool for congressional elections.

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Pittsburgh Post-Gazette Comes out in Favor of RCV or Runoff Elections for Primaries

Editorial:

According to current polling, the winner of the Republican primary for Pennsylvania Governor will receive less than a third of the vote. And on the U.S. Senate side, no major poll has a single candidate winning more than a quarter.

This means that QAnon darling state Sen. Doug Mastriano, R-Franklin, will likely win the GOP nod for governor, while election denier Kathy Barnette has a strong chance to pick up the Senate bid. 

It doesn’t have to be this way. In an age of polarization and fringe candidates, when a radicalized minority can commandeer a party’s nomination, it shouldn’t be this way.

Pennsylvania could avoid these outcomes by arranging our primaries in one of two ways. The first is ranked-choice voting, the second is runoff elections. …

n either of these systems, Mr. Mastriano would likely not get a majority. His base of support is significant, but outside his core fans, his popularity drops significantly. In a ranked-choice election, he would likely receive many fewer second- and third-choice votes than his competitors. In a runoff, he would bump up against a ceiling. The same would probably be true of Ms. Barnette.

But this isn’t about one candidate. It’s about a system that by its chaotic nature encourages too many candidates to run, and thus encourages the most demagogic instincts in those candidates, who can vie for the minority of most committed, more radicalized voters who can determine a race at only 25% or 30% of the vote.

This is how parties get radicalized even further, in a cycle hard to break. While some Democrats may be licking their chops at the idea of a Mastriano or Barnette candidacy, they should watch what they wish for. Donald Trump wasn’t supposed to win either. And they could easily face the same problem themselves.

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“The Twitter account defending Australian democracy”

A must-read story from the Wa. Post on how Australia combats election disinformation:

In a Canberra office covered in computer screens, the alerts began pouring in.

“This needs a #FactCheck,” one person tweeted.

“Is this not illegal?” another asked.

Tagged in the torrent of tweets was the Australian Electoral Commission (AEC). Within minutes, the federal agency responded, calling the video “false” and “disappointing.” The agency’s actions quickly led Twitter to label the cartoon as “misleading,” and Facebook and TikTok took it down completely.

The incident last month reflects the rising tide of misinformation Australia faces as it prepares to go to the polls on Saturday. But it also shows the benefit of a single agency overseeing a country’s electoral process….

“There are a myriad of major and minor differences in how electoral laws and regulations are administered across America,” said Pippa Norris, a professor at Harvard’s Kennedy School of Government. “This violates basic principles of equality and consistency in electoral processes and voting rights, leads to excessively partisan considerations gaming the system, and encourages numerous malpractices.”

Australia’s electoral system, in contrast, is praised by analysts around the world.

Steven J. Mulroy, a professor at the University of Memphis and the author of a book on American election law, called it the “gold standard in election administration.”…

As the challenges have changed, so, too, has the AEC.

When Ekin-Smyth joined in 2011, the AECdidn’t even have a Twitter account. A decade later, half a dozen people now help him tweet at a blistering pace: up to two dozen times per hour. It also has accounts on Facebook, Instagram, LinkedIn and YouTube, has partnered with TikTok on an election guide, and has held an “Ask me Anything” on Reddit….

“We’re not blind to the fact that social media moves incredibly swiftly,” Ekin-Smyth said. “And the action that social media organizations can take is brilliant. But the action we can take even quicker by responding on our channels is perhaps going to be even more effective.”…

“A party or candidate talking about another party, their policies, their history — we cannot be the regulators of truth for that,” Ekin-Smyth said. “We don’t have legislation that allows it. But also there would be some practical problems and some perception problems if we were making decisions on those things.”…

With social media stoking tribalism, the AEC requires all its employees — including its 100,000 temporary election workers — to sign a declaration of political neutrality.

“There is a lot of responsibility to it,” Ekin-Smyth said, “because a failed election — real or perceived — as we’ve seen in other jurisdictions, is potentially devastating.”

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“Betraying the Bench: Could the SCOTUS Leaker Face Criminal Charges?”

From three former federal prosecutors, one of whom is a federal judge. In Bloomberg Law:

Corruptly Influencing an Official Proceeding

Enacted with the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1512(c)(2) makes it criminal to, among other things, corruptly influence an “official proceeding.” The issuance of an opinion certainly is part of an official proceeding, and, depending on the evidence, it is foreseeable that a law clerk could seek to corruptly (that is, wrongly, as in United States v. Nordean) influence a proceeding by, say, changing the outcome of the justices’ vote or the scope of the court’s holding, through external pressure, threat, intimidation, or otherwise.

Theft of Government Property

The taking of the confidential work product of the justices may also implicate 18 U.S.C. § 641, because, broadly described, it is the theft of government “property.” Perhaps the law clerk “stole” the paper (“thing of value”) on which the ruling was printed. If, as is likely, the value of the thing stolen is under $1,000, however, we are in misdemeanor territory.

The more substantive question, characterized by a current circuit split, is whether confidential “information” qualifies as a “thing of value.” As the U.S. Court of Appeals for the Second Circuit put it more than 40 years ago, the government has a “property interest in certain of its private records which it may protect by statute as a thing of value.”

It is hard to disagree. After all, federal courts decide issues of enormous economic, social, and legal importance (and value). Advance notice of a court decision creating or removing an asserted right or privilege (or ruling in favor of one litigant or another in a business dispute) would appear to be especially “valuable.” (See also United States v. Middendorf—intangible confidential information is “property.”)

Disclosure of Confidential Information

The disclosure of confidential court information might also fit well within the parameters of the oft-overlooked misdemeanor statute, 18 U.S.C. § 1905 (prohibiting the “disclosure of confidential information generally”). Law clerks are federal employees, the information they obtain is “confidential,” it comes to them “in the course of [their] employment,” and the disclosure is not “authorized by law.” (United States v. WallingtonU.S.Customs Service employeerunning unauthorized background checks for a friend; the confidential information need not come from, nor be generated by, a private party.)

Although it is true that the only Section 1905 prosecutions thus far have been brought against executive branch employees, this bit of legal historiography offers little protection to judicial or legislative branch employees. After all, the text applies to any “officer or employee of the United States,” which includes, but is not limited to, any “department or agency thereof.”

Finally, the fact of a 5-to-4 split ruling, the outcome of a case, or similar information can be said to “concern” or “relate to” the judicial “process,” “operation,” or “style of work,”—at least, the prosecutor will so argue (although there is some room for defense counsel to claim otherwise).

Conspiracy to Defraud the U.S.

In 1919, Ashton Embry, a clerk to Supreme Court Justice Joseph McKenna, sent an opinion to Wall Street financiers ahead of a judgment involving a railroad company. He was indicted for having violated 18 U.S.C. § 371. The prosecution’s theory was that, by releasing the opinion early, the clerk and his “co-conspirators deprived the Court of the right to announce its decisions at the customary time.”

In short, the early release upset the court’s established custom. The district court rejected Embry’s motion to dismiss, but the prosecutor thereafter, for undisclosed reasons, dismissed the case. Although the case was not seen to its conclusion, the unfinished prosecution of Embry is interesting if for no other reason than that it belies recent assertions that law clerk leaking is terra incognita. (Middendorf—holding that intent to defraud by sharing intangible information may be “incidental to another primary motivation.)

The widespread claims that the criminal prosecution of a law clerk leaker would require a prosecutor to “cook up creative theories,” that it would be a “stretch” for the Justice Department to “even investigate the matter,” and that there “is no criminal statute” that makes the leaking of draft opinions “illegal” are off-base. When the facts call for it, the existing statutory framework will not stymie a prosecutor dedicated to protecting the integrity of the judicial process.

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“Ranked-Choice Voting Is More Democratic, Not Less”

This piece, in American Purpose by Peter Ackerman, Larry Diamond, Cara Brown McCormick, responds to a critique of RCV by former member of Congress Mickey Edwards. Some excerpts:

Edwards’ principled view is that a two-round runoff election is superior to ranked-choice voting because it gives voters a chance to take a “second look” at the final two candidates. A “second look” is valuable, but it asks a lot of voters, who must turn out again for the runoff, which would be the third election of the year. Also, because it involves just the two highest first-round vote-getters, it does not fully account for voters’ preferences.

RCV includes more comprehensive “instant runoffs:” If no candidate “wins” the first round, the candidates with the fewest “wins” are eliminated. Their votes get transferred to the next-preferred candidates. These instant runoffs continue until a candidate wins a majority. This means candidates can come from behind to win, because they appeal to more voters than anyone else….

Edwards calls RCV “anti-democratic” because it elevates “conviviality to the highest rank of qualifications for public office.” We think this gets things backwards. The logic of RCV is not to elevate conviviality but to punish gratuitously polarizing candidates who might mobilize an intense first-round following but are unacceptable to most of the electorate. That is a democratically worthy goal….

Moreover, if we want to avoid “anti-democratic” methods, what is more anti-democratic: a candidate winning an election with just a plurality of the vote, or a series of instant runoffs that produces a majority winner?

Edwards dislikes the notion that “a person who receives the most first-place votes might become a loser;” but the two-round voting that he favors can produce a similar result, less efficiently than RCV does.

RCV also gives independents and third-party candidates a better chance to get a “first look” from voters. Thus, RCV does more to stimulate democratic competition….

Our deepening democratic dysfunction has more than one cause, but we think a key one is the current polarizing electoral system. This is also the factor we can most readily address, by mobilizing more states to follow Maine and Alaska and adopt RCV, as voters in Oregon and Nevada are now circulating petitions to do. RCV is a political reform whose time is coming, and none too soon.

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More on How Internally Fragmented Our Political Parties Are

The title of this Politico story is “Idaho GOP riven by primary civil war.” An excerpt:

Idaho’s dominant Republican Party is at war with itself up and down the ballot ahead of its May 17 primaries.

It’s not just Gov. Brad Little, whose reelection campaign became national news when Donald Trump endorsed a primary challenge from Lt. Gov. Janice McGeachin. The state attorney general is staring down a challenge from a former rabble-rousing member of Congress. The senior of Idaho’s two GOP House members is facing a primary that has drawn millions in spending. And contentious open races for lieutenant governor and the secretary of state — Idaho’s chief election official — echo some of the national divisions within the party.

There is bound to be some infighting in a state where ambitious pols only have a few routes up the ladder. But there’s more to it in Idaho, where the party’s longtime control over the booming state has bred sharp differences and fierce enmity between two wings of the GOP. https://d319c3243f0229059c914a31426a3bde.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html

“Some people would describe it as conservative, and then far-right conservative,” said Tom Luna, the chair of the state Republican Party. That “far-right” camp, Luna continued, “would call themselves conservatives and everybody else moderates.”

“We’re probably a microcosm, in some ways, of a lot of places around the country,” said Tommy Ahlquist, a developer who finished third in the 2018 GOP gubernatorial primary.

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Fear of Being Primaried

The current structure of our primary elections is a significant factor in driving candidates and incumbents to the extremes. We know this, and I’ve written about some of the evidence for it here, but it’s always useful to hear about this from candidates and officeholders who directly experience this on the ground. Here’s an excerpt from today’s NYTimes story on the Republican Party in Arizona:

There has been little political upside for moderate and more establishment Republicans in Arizona to speak out against the party’s far-right wing. Instead, the handful of them who have done so have faced protests, censure from local Republican organizations and harassment. Bill Gates, the Republican chairman of the Maricopa County Board of Supervisors, who has repeatedly defended the state’s 2020 election, has received death threats.

“There’s not enough pushback,” said State Senator Paul Boyer, a Republican who is not running for re-election. “Because everyone is afraid of a primary.”

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New Developments in Campaign Finance: Reverse Coordination in Ohio’s Senate Race

Politico’s story on how JD Vance won the Republican primary contains what is a striking new development in campaign finance. Vance’s campaign itself was not raising large amounts of money, but the massive contributions from Peter Thiel and others were sent to a super PAC that was supporting Vance. The super PAC leaders decided they had to substitute, in essence, for the campaign. To receive unlimited donations, the super PAC must be independent and cannot coordinate directly with the campaign. So instead they set up a public website on which they posted data and analysis that they hoped the Vance campaign would follow.

Here are some of the key passages on this from the story:

Shortly after Vance launched his campaign last summer, Thompson set up a public website where he published a trove of sensitive documents — from thousands of pages of polling data, to memos assessing the strengths and weaknesses of Vance’s opponents, to a 177-page opposition research book detailing all of the areas where Vance’s opponents might attack him. There were suggested lines for Vance to use on the campaign trail, and even guidance on how the candidate could win Trump’s endorsement.

All of it was out in the open for the world to see. But it had one intended audience: the Vance campaign.

The site — housed on the publishing platform Medium under the username @protectohiovaluesforms — allowed the super PAC to publicly convey information to the Vance campaign without breaking federal laws prohibiting coordination between big-spending outside groups and campaigns. By accessing the website, the lesser-funded Vance campaign was able to capitalize on the resources of the Thiel-funded super PAC.

The issue of how to define illegal “coordination” between campaigns and purportedly independent PACs has long bedeviled campaign finance regulation. But usually, we see the issue arise in a different circumstance: the campaign puts out publicly available information about its message, targeted voters, spending plans and the like, and the super PACs who are interested in doing their work in a way that aligns with the campaign’s strategy then follow.

This story illustrates what I call “reverse coordination” and I am not sure it’s happened on this scale before. The super PAC takes the lead: it does much of the work a traditional campaign does, makes that analysis public, and the campaign then follows the path the super PAC has laid out.

What’s going on here is implicit coordination between campaigns and super PACs, though in this case the other way around. Could Congress or the FEC ban this kind of implicit coordination through the public posting of information? That’s hard to imagine, and it would certainly raise substantial First Amendment issues.

There are many proposals to tighten up the definition of coordination — such as prohibiting figures who recently worked for a campaign from turning around and working in a super PAC supporting that candidate, or requiring super PACs to be multi-candidate PACs rather than being devoted solely to electing one candidate. But I haven’t seen proposals that would ban publishing of campaign-related information, for obvious reasons.

As long as independent spending is constitutionally protected — and it’s Buckley v. Valeo that establishes that it is — it is difficult to see how regulation could effectively limit the kind of implicit coordination, including the new form of implicit coordination, that the Vance example illustrates.

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Did Ending the Filibuster of Judicial Appointments Alter the Behavior of Lower-Court Judges?

Interesting speculation about that in this Axios story:

What they’re saying: J. Michael Luttig, a former U.S. Court of Appeals judge appointed by the late President George H.W. Bush, told Axios: “Ideally, federal judges would make few, if any, extrajudicial comments in their opinions — and none in their public speeches and remarks.”

  • “The former is exceedingly difficult to honor in practice over a long period of service on the bench, but every attempt should be made,” he said.

Sarah Isgur, a former Trump administration Justice Department senior official and, now, co-host of the legal podcast Advisory Opinions, said the partisan split in the Senate is propelling the change in judicial temperament.

  • “Once the filibuster was gone for the lower-court judges, what you see is that people no longer need to get votes from the opposing party, but they need to be the most extreme version of their own party,” she told Axios.
  • “And, so, with some of the Trump appointed judges, there is a lot more willingness to signal to the right-flank of the party. For those who want to be Supreme Court justices, or want to be in the running for that sort of influence, they don’t need to signal to the left.”
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