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Supreme Court

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US Election – More of the Same?

3 November 2020

By the time you read this you may know more than I do as I write it, but some conclusions about the US election are already certain.

First, this has been essentially a re-run of the 2016 presidential election. The final Electoral College tally and therefore the presidency may still be in doubt, but we already know the popular vote, and it’s about the same ratio as when Hillary Clinton was the Democratic nominee four years ago.

Biden currently has 50% of the votes versus 48% for Trump, and the races in the remaining undecided states are all very close so that ratio is unlikely to change. This means that Biden got at least 3 million more votes than Trump, but that is no more a guarantee of victory than Clinton’s 3 million majority in 2016.

So the Electoral College is as big a problem as ever, and the Great Demographic Shift that was going to make a Republican victory impossible is still becalmed somewhere over the horizon.

Secondly, the Republicans are almost certain to keep their majority in the Senate, in which case they can block any new legislation the Democrats want to pass even if Biden does win the presidency. That includes any attempt to tackle the Electoral College issue, which was a fairly forlorn hope in any case.

Not winning the Senate also means the Democrats cannot create new Supreme Court judges, which is their only possible way to roll back the Republican policy of packing that court with conservative appointees (currently a 6-3 majority). In that case Supreme Court decisions that will probably re-ban abortion and dismantle Obama’s healthcare reforms will be impossible to reverse.

Finally, the culture war (mostly without guns) that already obsesses and disfigures the United States will continue. Indeed, it will intensify if Trump loses the election but continues to deny it and claim fraud, as he most certainly will. Losing the presidency is virtually an existential question for him, since without it he would be exposed to an avalanche of legal charges.

There has been some speculation that an amnesty would encourage him to accept his electoral defeat and leave the White House quietly, and that would be a good idea if it could actually work. Unfortunately, even a victorious Joe Biden could only offer Trump an amnesty for federal charges, and some of Trump’s worst legal problems are at state level.

So Trump must hang on to the leadership of the Republican Party and mount as many legal challenges as possible to the voting and vote-counting processes. Back in his real-estate days his first reflex was to tie his opponents up in court battles, even if the courts were ultimately likely to decide against him.

At the very least that was a way of buying more time, and now there’s also the slim chance that some key lower-court decision might be get appealed all the way up to his friends on the Supreme Court.

The battle in the courts will be long and exhausting, and there’s not going to be any ‘closure’ or ‘healing’ in America in the aftermath of the election.

At the time of writing it looks like Joe Biden will eke out a win and become the 46th president, but his victory will be as unconvincing in the eyes of foreigners as it is to many of his fellow Americans. A conclusion that has been growing elsewhere about the United States since 2016 has only been strengthened by this election: America is not to be trusted.

Almost re-electing Donald Trump, after having had the opportunity to observe his behaviour close up for every day (literally) of the past four years, reflects very poorly on the common sense of the American public. If half of them cannot even see through such an obvious fraud, should they really be allowed out without adult supervision?

More importantly, are they to be trusted as partners and/or allies? For example, Biden might rejoin the Paris Climate Agreement (which the US officially quit on Wednesday), but it is actually a treaty and he’ll never get it ratified by the Senate. Obama got around this once by pretending it wasn’t really a treaty, but it’s hard to get away with that trick twice.

The same goes for America’s existing alliances and trade deals. They may be safe under a Biden presidency, but other countries would be unwise to count on them for the long term.

The partners and allies will have to start looking for insurance elsewhere, because it is now clear that Trump was not a fluke. The ‘other America’ is permanently just one roll of the electoral dice away from regaining power, and it is both ugly and unreliable.
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To shorten to 700 words, omit paragraphs 9 and 10. (“So…Court”)

Trump: The Odds

7 October 2020

Now is when it gets interesting.

The announcement last Friday that US President Donald Trump had fallen ill with Covid-19 hardly came as a surprise. His political strategy of playing down Covid-19 required him to be reckless about his own health, and other Republicans were already dropping like flies. Fourteen Republican Senators and Representatives have now tested positive, compared to six Democrats.

Some journalists who were up against a deadline started speculating right away about what would happen if Trump died from Covid, but that felt kind of ghoulish. Besides, the odds were long against it.

The death rate for people in their 70s who are hospitalised with Covid symptoms is much higher than for younger people, but it’s still only 8.5%. Being male and fat with a heart problem are all additional risk factors for Trump, but they are probably counterbalanced by the fact that he gets excellent medical care 24 hours a day. So wait and see.

Wait how long? After a million deaths (almost a quarter of them in the United States), we now know a good deal about the pattern of this disease, and it is rarely life-threatening in the first week after symptoms develop. Some suffer from a constant dry cough, fever, headache, fatigue, and/or a loss of the sense of smell and taste, but at worst there’s a certain shortness of breath.

We know that Trump was briefly put on oxygen last Friday and again on Saturday, but that does not mean he’s deathly ill. On the other hand, the fact that the doctors let him go home to the White House on Monday doesn’t mean they are hugely confident either.

Trump would have put immense pressure on the doctors to let him go, since that would let him do some macho posturing about having defeated the virus. They would have shrugged their shoulders and given in, because the real crisis was not due until later anyway.

Trump did indeed indulge in some major chest-beating when he got home. “Feeling really good!” he tweeted. “Don’t be afraid of COVID! Don’t let it dominate your life!… I feel better than I did 20 years ago!”

Well, of course he’s feeling better. He’s on a steroid high. His doctors have put him on dexamethasone, a steroid medication that is not normally given to patients who are non-critical.

(He’s also taking remdesivir, monoclonal antibodies, zinc, vitamin D, famotidine, melatonin and aspirin, but none of those makes you feel like Superman.)

The doctors doubtless told Trump that the real make-or-break time with Covid-19 is seven to ten days after symptoms first develop, when some patients who have been feeling reasonably well suddenly go into a steep decline, with severe lung problems. That’s when you get put on the ventilator. But it probably didn’t register.

“Now I’m better, and maybe I’m immune,” he said at the White House. Then he took his mask off and, still highly contagious, walked back into the White House among the staff who were standing by inside. (Or to be more precise, those who were still standing at all. A dozen White House staff have already gone down with the disease.)

If Day 1 for Trump was last Thursday, as his doctors say, then Days 7 to 10 are this Thursday to Sunday. So it’s now reasonable for us to discuss how those days might define the future of the presidential election, and perhaps of the United States. Tastefully, of course, and with no ghoulishness.

Outcome A: Trump dies. Probability: less than 10% (see above). Consequence: Vice-President Mike Pence takes his place, and loses the election.

Outcome B: Trump gets very ill and is re-hospitalised. He survives, but cannot resume the campaign. Probability: around 10%. Consequence: Joe Biden wins the presidency with a margin big enough that Trump’s people cannot plausibly dispute it. Normal service is resumed, and Trump spends the rest of his life in court.

Outcome C: Trump recovers, and is back out campaigning within a week. Probability: more than 70%. Consequence: he still loses the election (just look at the numbers), but he is fit and able to build on the foundations he has already laid and lead a campaign from the White House (not necessarily non-violent) to dispute the postal vote.

He is desperate enough, and ruthless enough, to comprehensively muddy the waters, possibly with the help of his carefully packed Supreme Court. Perhaps the United States becomes a banana republic, perhaps not.

And we must recognise the possibility that Outcome C in some form is already inevitable because Trump contracted Covid days earlier, concealed it, and is already safely past Day 10. In which case this entire drama is just pantomime.
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To shorten to 700 words, omit paragraphs 5 and 10. (“Wait…breath”; and “He’s also…Superman”)

Korea and Japan: The History Wars

Nation-states, like four-year-olds, find it very hard to admit they are in the wrong and apologise. Adult intervention often helps, but all Japan and South Korea have is US Secretary of State Mike Pompeo (who tried and failed to mediate a week ago in Bangkok). So the trade war between the two grows and festers.

There are obvious similarities with the trade war that Donald Trump is waging against China, with Japan’s Prime Minister Shinzo Abe playing the Trump role: blustering bully with no clear game plan. Like the Trump trade war, too, the Japan-South Korea confrontation threatens to destabilise both East Asian security arrangements and the global market.

Yet the confrontation between Tokyo and Seoul is not really about trade at all. It’s about the difficult history of relations between an ex-imperial power, Japan, and its former colony, Korea.

Japan is existentially in the wrong in this relationship, because it seized control of Korea in 1905 and ruled it, sometimes with great brutality, until it was defeated in the Second World War in 1945. But Tokyo doesn’t like to be reminded of all that, and claims that it discharged whatever moral debt it owed when it paid $500 million to Seoul in 1965.

Koreans take a different view, of course, but the truth is that the victims of Japan’s wartime behaviour were sold out by their own government. $500 million was a lot of money, more than the South Korean government’s entire annual budget. The newly installed military-led regime in South Korea needed the money and accepted Japan’s terms.

Almost all the money went to building up South Korea’s new export industries. Japan offered to pay compensation directly to Korean individuals who had suffered forced labour and other injustices during the Second World War, but Seoul preferred to take a lump sum (and spend almost all the money on development). Many of the victims got little or nothing.

The resentment this caused was easily diverted onto Japan, which had driven a hard bargain and failed to accompany the compensation with an apology. Anti-Japanese hostility occasionally boiled over in notorious cases like the ‘comfort women’ (young Korean women who had been abducted to serve as sexual slaves for the Japanese army), but it is always bubbling away underneath.

Fast forward to last October, when South Korea’s Supreme Court ruled that the lump-sum, government-to-government deal of 1965 did not cover damages for the mental anguish of individual wartime labourers. Subsequent rulings have authorised South Korean individuals to claim compensation from the Japanese industries that used their labour by forced legal sales of those companies’ assets in South Korea

South Korea’s President Moon Jae-in did not seek this ruling from the Supreme Court, which is entirely independent. The Court was clearly stretching the law almost to breaking point, but in practical political terms he could not disown it.

Japan, on the other hand, was horrified by the ruling. Accepting it would open to door to huge claims for compensation from people who had suffered ‘mental anguish’ from the Japanese occupation in all the other countries Japan invaded between 1937 and 1945. It also felt betrayed: half a century ago it had paid out a lot of money to extinguish any further claims like these.

There has never been much love lost between Japanese and Koreans, but the two countries have almost always managed to keep important issues like trade and national security separate from the emotional flare-ups that make the relationship so fraught. Last month, however, Prime Minister Abe completely lost the plot. He began imposing restrictions on Japanese exports to South Korea.

They are relatively minor restrictions. Three classes of chemicals essential to making semiconducters that South Korea buys from Japan now require export licences. A minor bureaucratic hurdle, unless Japan stops approving the licenses (which it has not done).

More recently Japan has removed South Korea from its ‘whitelist’ of countries that are allowed to buy goods that can be diverted for military use with minimal restrictions. Again, no big deal. Just another little hurdle to cross, meant to rebuke and annoy South Korea, not to cause serious injury.

But it has been very successful in annoying South Koreans, who have spontaneously organised a quite effective boycott of Japanese-made goods. And petty though its origins may be, this confrontation is now raising the prospect that these long established trading partners, both closely allied to the United States and both anxious about China’s rise and the threat of North Korea, are going to have a real trade war.

Which, with help from the bigger trade war Donald Trump started with China, may be enough to tip the world economy into a deep recession.
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To shorten to 725 words, omit paragraph 5. (“Koreans…terms”)

Gwynne Dyer’s new book is ‘Growing Pains: The Future of Democracy (and Work)’.

Trump the Promise-Keeper

Donald Trump is a man of his word, and he promised his ‘base’ to build a wall on the US border with Mexico to stop an “invasion of gangs, invasion of drugs, invasion of people.” It turns out that Mexico isn’t willing to pay for it after all, but a promise is a promise. So he has declared a fake ‘national emergency’ to get his hands on the money he needs.

It’s fake because the days when huge numbers of illegal immigrants were trying to come in across that 3,200 km. border are long past. Fifteen years ago it was more than a million and a half people a year. It had fallen to 400,000 by the middle of Barack Obama’s first term in 2010, and has not exceeded that number since.

Half of those 400,000 people are caught while crossing, so let’s just focus on the 200,000, more or less, who currently sneak through the border far from any legal crossing point, and whom a wall might stop. Let’s imagine that it could stop them all.

The predicted cost of the wall is $23 billion, so how much would the United States be spending for each of these would-be border-crossers? Around $11,000 per person, and very, very few of those people are gang members or drug-smugglers; they are just looking for work and a better life. The United States is fully entitled to turn them all away, but this is ridiculous.

The wall is largely symbolic, but it is a very important symbol for Trump. It was one of the key promises he made to the true believers in his ‘base’, and it was striking how angry they got at him when it looked like he would be thwarted by Congress. As Ann Coulter said: “The only national emergency is that our president is an idiot.”

But the ‘national emergency’ will probably do the trick for Trump. It will face all sorts of legal challenges, but the rules for declaring national emergencies are so vague and the precedents so numerous that he will probably win in the courts in the end.

In the meantime, he will have around $8 billion to play with, mostly taken from the military and disaster-relief budgets. It’s only a third of what it would take to build a full border wall, but it will let Trump look busy and persuade the ‘base’ that he is making progress.

So there’s one promise kept, more or less. The other two that really count are his promise to “bring the jobs back” and his commitment to outlaw abortion.

He can’t bring the jobs back because they never left. The vast majority (around 85%) of American manufacturing jobs lost since the turn of the century were killed by automation, not by free trade. But the fantasy statistics about near-full employment pumped out by the government may suffice to keep his base quiet, even if jobs are strangely scarce or low-paying around where they live.

What Trump does need to deliver on is banning abortion. He cannot do that himself, of course, but he promised to appoint ‘pro-life’ justices to the Supreme Court during the 2016 election campaign. He has probably managed to create an anti-abortion majority on the Court by now (although you can never tell with judges). But there is a problem for him and the Republican Party if he delivers on that promise.

47% of white women voted for Donald Trump in 2016, but around half of them were not part of his ‘base’. They were just traditional Republicans who voted as they always did, some of them perhaps holding their noses this time.

If the Supreme Court reversed its historic 1973 Roe vs Wade decision that made abortion legal throughout the United States, a lot of these women would be very cross with Trump and the Republican Party. Given that Trump only won by a hair’s breadth in 2016, he cannot afford to lose their votes.

Therefore he definitely doesn’t need a big win on Roe vs Wade in 2019 if he wants to be re-elected in 2020. Does he know this? It’s his own future at stake here, and he’s usually very alert to developments that might threaten it.

He can’t really control what the Court might decide, but he will be hoping that they just nibble at the fringes of the issue, not reverse Roe vs Wade outright. And the Court is quite likely to do just that, because senior judges hate to overthrow decisions of long standing that enjoy wide acceptance in the society. (Two-thirds of Americans support the current law.)

Trump doesn’t care about the outcome on most issues, probably including this one. He just wants a ‘win’, and he can conjure it up out of the most unpromising material. If the judges make a few minor changes to the law, he will portray it as a triumph and drop the subject.

The real secret of dealing with Trump? Throw him a fish, and he will go away.
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To shorten to 725 words, omit paragraphs 3 and 4. (“Half…ridiculous”)

Gwynne Dyer’s new book is ‘Growing Pains: The Future of Democracy (and Work)’.