Thursday, June 04, 2020

How Endangered is Eliot Engel?

Rep. Eliot Engel (D-NY) has been in Congress for over thirty years. In that time, he's been a pretty standard-issue New York Jewish Democrat -- generally progressive, solidly pro-Israel, slowly working his way up the ranks (he's currently Chair of the House Foreign Affairs Committee).

This year, however, he's facing a spirited primary challenge from middle school educator Jamaal Bowman. Is this the next AOC-shocker (AOC just endorsed Bowman, as it happened)?

On the one hand: First, Engel would have to be an absolute idiot to be sleeping on this race -- especially given the AOC example from last cycle. So while I'm not versed in exactly what's going on in New York campaigning, I have to assume he's putting out ads and has his campaign apparatus in gear. Engel has the endorsement of the Congressional Black Caucus, which can only help him, and he also has a very large war chest to spend.

Moreover, there actually haven't been that many House Democratic incumbents that have gone down in defeat this cycle, despite a lot of online energy propping up this or that left-wing challenger. For example, there were plenty of people excitedly chatting up Mckayla Wilkes' challenge to House  Majority Leader Steny Hoyer, but earlier this week Hoyer beat her by almost 60 points. We have to remember: online energy doesn't usually translate into actual votes. The main counterexample this year was Marie Newman's defeat of Dan Lipinski in Illinois -- but Lipinski is far to the right of his district and was already shown to be vulnerable when he barely won renomination in 2018. Engel, by contrast, has a largely progressive voting record and has not shown much prior vulnerability.

On the other hand: The energy I'm seeing on Bowman's behalf does seem qualitatively different from those of other seemingly analogous challengers-from-the-left. He gained a boost when another left-leaning challenger dropped out and endorsed him, which will help consolidate the anti-Engel vote. Bowman's also getting outside support from AOC, the Justice Democrats, and the Working Family's Party, which will partially (though not entirely) off-set Engel's financial edge.

Meanwhile, Engel had a major mic gaffe the other day, when he said that "if he didn't have a primary he wouldn't care" about not being given the opportunity to speak at an anti-police brutality press conference. While the remark is pretty clearly being taken out of context (he was saying the primary is why he cared about being denied a speaking slot, not that the primary is why he cared about police brutality issues), politics isn't fair and Bowman's gained huge momentum off the gaffe.

The other big wild card is how the coronavirus epidemic and anti-police brutality protests will effect the race. Normally, the conventional wisdom is that anything that disrupts traditional campaigning helps the incumbent, because it's the challenger who has to overcome inertia. But in this case, I can very easily see these issues congealing into a generic anti-status quo sentiment among Democratic primary voters, a sense that what we have now just isn't working, and that could easily be directed (fairly or not) against an entrenched incumbent like Engel. My gut instinct is that Engel will not benefit from the chaos and uncertainty.

The primary is June 23, and right now I don't really have a prediction. Let's see what develops.

Wednesday, June 03, 2020

What Went On Downballot Tonight

A bunch of states held primaries today, but for the most part they weren't too interesting. The biggest news by far was the defeat of White supremacist (and former Ted Cruz presidential campaign chair) Iowa Republican Rep. Steve King, who was ousted by State Sen. Randy Feenstra. While this probably locks the normally solid red seat up for the GOP (unless King runs as an independent), most progressives still cheered the defeat of the most avowedly racist member of Congress.

Aside from that, though, there were very few marquee races. Incumbents won, generally quite handily. Rep. Kweisi Mfume (D), who defeated former Rep. Elijah Cummings' widow in a special election a few months ago, repeated the feat in tonight's primary to win the Democratic nomination in Maryland's 7th congressional district. There was some barking by the left at targeting House Majority Leader Steny Hoyer, but he crushed progressive challenger with little trouble. Over in Pennsylvania, Rep. Brian Fitzpatrick, one of the few House Republicans who still can kinda-sorta gesture at being a moderate, looks like he managed to turn back a challenge from his right -- he's up 56/44 with just over half reporting (this seat will be a Democratic target come November).

So barring major action in the federal races, is there anything worth reporting further down the ballot? Potentially.

Start in Massachusetts, which had two State House special elections tonight. Democrats held the HD-37 in Middlesex, and, perhaps more importantly, flipped a Republican seat (HD-3) in Bristol. This follows on the heels of Democrats flipping to Massachusetts State Senate seats from red to blue a few weeks ago. While this has no immediate impact on the Bay State political arena -- Democrats enjoy commanding leads in both legislative chambers -- it still represents good news. The Bristol seat is one where Democrats have historically done well at the top of the ballot but have struggled in more local races; if voters of this ilk are becoming more solidly blue, that can only be a good thing.

Moving over to New Mexico, where a slate of progressive challengers sought to tackle right-wing incumbent Democrats who had joined Republicans to block reproductive rights legislation. In the State Senate, it looks like at least three Democratic incumbents have been defeated, in the 5th, 28th, and 35th Senate districts. Another two races, the 30th district and the 38th district (where the incumbent is State Senate President Pro Tem Mary Kay Papen) are too close to call. Also in New Mexico, Teresa Leger Fernandez defeated Valarie Plame to become the Democratic nominee for the third congressional district, vacated by Rep. Ben Lujan (D). I'm not sad about this result.

Montana kind of was a New Mexico in reverse, with the state GOP divided between a moderate "Solutions Caucus" wing (which has been working with legislative Democrats and incumbent Democratic Governor Steve Bullock) and a hard-line ".38 Special" group, which views cooperation as an anathema. Members of both groups faced primary challenges from the other wing, and the overall results were mixed.

Right-wing challengers targeted two moderate state Senators as well as ten state Representatives. On the Senate side, they split (ousting the incumbent in the SD-28 but falling short in the SD-10). In the House, they won in the HD-35, HD-37, and HD-68 but lost in the HD-7, HD-14, HD-21, HD-39, HD-70, HD-86 and HD-88. Meanwhile, centrist challengers took on four .38 special incumbents in the state House, defeating two. The moderates prevailed in the HD-9 and HD-75, while the conservative incumbents hung on the HD-10 and HD-11. Overall, close to a wash.

Our final stop tonight is Pennsylvania, where a bunch of Democratic incumbents appear to be in trouble, but I've yet to find a clear story as to why. Well, that's not wholly true -- in the SD-17, the incumbent is facing sexual harassment allegations, which probably has a lot to do with his troubles. But Democratic incumbents are also trailing in the SD-1 (Farnese), HD-20 (Ravenstahl), HD-182 (Sims), HD-185 (Donatucci), HD-188 (Roebuck), and HD-190 (Green). So far, I haven't found a clear through narrative for these races akin to what we're seeing in New Mexico or Montana. Of the endangered incumbents, Sims is probably the highest profile -- he recently went viral after accusing Republican colleagues of hiding a positive coronavirus diagnosis from House Democrats, placing them in danger. A lot of votes are still being tabulated because they were sent by mail, so I've been cautioned that some of the closer races (including Sims') may change.

Oh, one last thing: in Iowa, just one incumbent lost her primary race -- longtime Democratic state Rep. Vicki Lensing was ousted by University of Iowa law professor Christina Bohannan. I have no idea what these means politically, but I'm always happy to see law professors succeed in their life projects.

Tuesday, June 02, 2020

Are Americans Grasping the Reality of Police Violence?

As the nation continues to be gripped by protests against police brutality, I've been struck by the near-constant footage of excessive police force against journalists and civilians who seem to be doing nothing more than exercising their constitutional rights. For me, it powerfully communicates the reality of a central theme of the protests: that the police are out of control and are acting as a tool of repression and violence against the Americans they nominally are there to protect.

But my vantage is only a partial one, and I've been waiting to see evidence about how the American people as a whole are reacting. We all still are living in the shadow of 1968, and there is the constant fear that the narrative that emerges will be one where the police are the victims and "law and order" must be restored. Is that what's happening?

Today, Kevin Drum links to new polling that gives cause for optimism: Asked over the weekend whether "police violence against the public" or "violence against the police" was a more serious problem, Americans picked the former by a 55/30 margin. Independents answered at roughly the same margin -- 54/27. Even White Americans agreed by a 50/35 margin (for Black Americans, the gap was a whopping 85/8).

It's just one poll, and just one question. But it does seem to point to a potential sea change (also on that note: a Minneapolis city councilor talking seriously about trying to disband the Minneapolis Police Department outright).

Meanwhile, it's primary night in several states across America -- off-hand, none of the marquee races seem like they'd be particularly impacted by the protests (maybe the effort to take out White Supremacist GOP Rep. Steve King), but I suppose we'll see.

Sunday, May 31, 2020

Eighth Circuit Absolves Another Minnesota Police Killing

On Friday, the United States Court of Appeals for the Eighth Circuit handed down its opinion in Kong v. City of Burnsville, a case regarding the killing by Burnsville police of an Asian-American man in the midst of a mental health crisis (Burnsville is a suburb of Minneapolis). The district court had denied qualified immunity to the officers, allowing the case to go to trial. On appeal, however, the Eighth Circuit (by 2-1 vote) reversed, holding that the officers' conduct did not violate clearly established law.

The facts of the case are complicated. Early one morning, Burnsville police received a report of suspicious activity in a McDonald's parking lot. A man (Kong) had been spotted sitting in his car for thirty minutes, waving a knife and jumping around. Officers arrived and at first passively monitored the situation. Then they asked the man to put down the knife; he was unresponsive. It was pretty evident that he was undergoing a mental health crisis, but he had not committed any felonies and did not appear to be an immediate threat to anyone.

Eventually, police broke the windows of his car and tased Kong twice. Kong did not drop the knife; he stumbled out of the car and broke out running towards the street where traffic was still driving by. At that point, police officers opened fire, striking and killing him (one bullet lodged in the bumper of a passing vehicle).

The majority held that it was not clearly established that the police could not open fire in this scenario. They contended instead that the officers reasonably perceived Kong as posing an imminent safety threat to the civilians driving by. Judge Kelly, in dissent, pointed out that it was obvious that Kong was undergoing a mental health crisis and he had never threatened anyone, and that in any event people in cars would not be in especial danger from someone holding a knife. A jury could therefore conclude that the decision to open fire on Kong was excessive.

I personally think this is legally a close case -- though close cases I think are generally best left to juries rather than plucked out by judges. But given the current circumstances in the Twin Cities and around the country, I thought it was noteworthy that this case was handed down this Friday, and wanted to give out the facts.

Friday, May 29, 2020

Qualified Immunity and Criminal Law

Normally, we think of civil cases as being easier to win than their criminal counterparts. The standard of proof is lower ("preponderance of the evidence" versus "beyond a reasonable doubt"), and many activities which are not subject to criminal penalties might nonetheless carry civil liability. There's a reason why O.J. Simpson was acquitted of murder but nonetheless lost the civil suit against him for wrongful death.

But, at least in the context of police brutality cases, there is one hurdle present in civil litigation that is not found in criminal law: qualified immunity.

Qualified immunity is a judicially-made doctrine that shields officers of the state (not just police officers, though they're the most common subjects of litigation) from civil liability for constitutional violations unless they violate "clearly established" law. In other words, it's not enough for the police officer to have violated the law, it has to have been obvious in advance that they violated the law. The judiciary has interpreted this in an exceptionally stingy fashion, insisting on extremely granular inquiries into whether the precise fact pattern alleged by the plaintiff had been specifically demarcated as unlawful in a prior case. The question isn't something like "has it been 'clearly established' that a police officer can't physical strike an non-resisting suspect?", it's instead more like "has it been 'clearly established' that a police officer can't specifically tackle a non-violent, non-resisting, non-threatening suspect who weighed 130 lbs?" If one doesn't find a case that mirrors those facts, the law isn't "clearly established" and the case fails. The Supreme Court itself has accordingly characterized qualified immunity as a shield for all except "the plainly incompetent or those who knowingly violate the law." And the Eighth Circuit (which includes Minnesota) -- well, it's insulated some pretty wretched behavior under qualified immunity's guise (and some of its judges think it hasn't gone far enough!).

By its nature, qualified immunity means that many actions which are concededly unlawful violations of Americans' civil rights are nonetheless protected from civil suit. But there is no qualified immunity in the criminal law: one cannot escape criminal punishment by arguing that there has not been prior case law "clearly establishing" that the conduct you're accused of is unlawful. I'm dubious about the ultimate viability of criminal law to serve as a systemic brake on police brutality -- I'm not sure that is a task it is well-suited for (though it is certainly appropriate in particular cases -- the George Floyd case appearing to be an obvious). But a criminal prosecution -- as much as it is (properly!) hamstrung by heightened burdens of proof compared to a civil suit -- does evade the strictures of qualified immunity. And given how aggressively the judiciary has interpreted qualified immunity to shield bad actors in the American policing system, that's a virtue which cannot be discounted.

Sunday, May 24, 2020

Albert Memmi (1920 - 2020)

Albert Memmi, the great Tunisian-Jewish anti-colonial writer and theorist, has passed away at age 99.

Late last year, a friend and I had the early sketches of a plan to host a conference in honor of Memmi's 100th birthday (at the time, the most common response to this idea was for people to exclaim "he's still alive?"). That was put on brakes after the coronavirus hit, but there's no question Memmi remains worthy of study and (now) memorialization.

Albert Memmi was born in Tunis in 1920. In his early life he was involved in socialist youth movements, and during the Nazi occupation of Tunisia he was interned in a slave labor camp (from which he escaped). After the war, he became one of the leading intellectual lights of the movement to free Tunisia from French colonization. What Fanon was to Algeira, Memmi was to Tunisia, and for many years Memmi's book The Colonizer and the Colonized was read alongside Fanon's The Wretched of the Earth as cornerstone texts of decolonial theory. That is much less true today, possibly because Memmi's later work was more conservative, possibly because Memmi was emphatic throughout his career that he viewed Zionism as the decolonization movement of the Jews.

Unfortunately, following independence Memmi found that Tunisia had little place for Jews, and he exiled himself to France where he spent the remainder of his life. He wrote a trilogy of books -- Portrait of a Jew, Liberation of the Jew, and Jews and Arabs -- which have been widely overlooked but which I think are each superb explorations of the Jewish condition that continue to resonate to this day (many excerpts from these books have been featured on this blog). He continued to write prolifically, culminating in a follow-up to The Colonizer and the Colonized titled Decolonization and the Decolonized in 2006. This book was controversial, as Memmi evinced a marked conservative turn, and there are parts of it that made me wince as a reader. But that does not mean it is not worth reading, as is the broader corpus of Memmi's amazing life's works.

While Fanon famously died extremely young, Memmi's career as a writer spanned well over a half-century, witnessing tremendous revolutions in his homeland and in the disciplinary areas he wrote upon. Hence, I've sometimes described Memmi as the version of Fanon who got to watch the decolonization story actually unfold. By itself, that makes him a fascinating character. But Memmi deserved to be read and praised in his own right, not simply as a shadow of Fanon.

May his memory be a blessing.

Thursday, May 21, 2020

Handicapping the Senate

It's less than six months from election day, so why not handicap the current state of the 2020 Senate races?

I'm going to list the (competitive) races in order of likelihood to flip to the opposing party.

1. Alabama (Doug Jones - D):  You know that West Wing plot where the Democratic nominee in a super-Republican district dies before election day, and Sam Seaborn offers to run in the special election if the dead guy somehow ends up winning? And then every confluence of luck and God and good fortune smiled and the dead guy did win, forcing Sam into a congressional run doomed as soon as it began?

That's kind of Doug Jones' re-election campaign. Everything -- everything -- had to break in increasingly ludicrous fashion for a Democrat to win a Senate seat in Alabama, right down to his opponent being an actual pedophile. And it still was a 2 point race. This was a great victory, and Jones deserves to be showered with plaudits and praise for it. But it'd take another miracle for him to win in 2020, and I don't see it. The only bright spot is that former Auburn football coach Tommy Tuberville looks likely to best ex-Senator and former Trump AG Jeff Sessions to become the GOP nominee -- not because Tuberville is better, but because one of the few joys of the Trump era has been watching him repeatedly wreck the careers of his erstwhile friends.

2. Colorado (Cory Gardner - R): Colorado, like Nevada, is a state that seemed to go from red to light blue, skipping entirely over purple in the process. Cory Gardner never got the memo, and has legislated like a GOP diehard for his entire first term -- never even gesturing at a pivot toward the center. The reward for his Trumpist loyalty is to be polling down double digits against Colorado Governor John Hickenlooper (doing the right thing running for Senate instead of a quixotic Presidential campaign). It's hard to see how he survives -- he ranks below Jones only because Colorado isn't so solidly blue that a Republican victory would require divine intervention.

3. Arizona (Martha McSally - R [special]): Every once in awhile, one comes across a politician who seems perfectly fine on paper, who doesn't seem to have any particular attributes that make her especially lovable or loathable, yet who voters for whatever reason just don't cotton to. Martha McSally seems to be one of those pols. She just lost a Senate race in 2018 to Kyrsten Sinema in a mild upset that presaged Arizona suddenly becoming a real Democratic target, then immediately got appointed to fill the shoes of departing Republican Senator Jon Kyl. Now she's polling down again to Mark Kelly (astronaut husband of shooting survivor and ex-Rep. Gabby Giffords), in a state where Biden is posting some very impressive numbers. Other politicians might be able to reverse the tide. But McSally just doesn't seem to vibe with the folks she needs to, and the trend lines aren't pulling her way. The most recent poll to drop in Arizona has her losing by a crushing 13 point margin.

4. Maine (Susan Collins - R): This would be among the sweetest fruits for me, and Sara Gideon has a very strong shot to take out Moderate Republican(tm) Susan Collins. Maine remains blue at the presidential level, and Collins once sky-high approvals have been in free fall as she's played loyal foot soldier to McConnell and Trump. Yet it's hard not to imagine she's stockpiled some good will from her (however tattered) reputation as a moderate, and Maine more so than anywhere in New England has some areas that are surprisingly Trump-friendly. This will be a real slugfest.

5. North Carolina (Thom Tillis - R): The "new south" -- educated, suburban, professional, racially diverse, and increasingly blue-friendly -- is creeping up and down the Atlantic coast. Virginia's already been taken over. Georgia an increasingly plum target. But the next domino most likely to fall is North Carolina -- still the palest shade of red leaning, but a place where Democratic fortunes appear to be waxing. Tillis has two other things cutting against him: he'll be sharing a ballot with wildly popular Democratic Governor Roy Cooper (who appears to be thrashing any GOP challengers), and a flood of bad press hitting his Senate colleague Richard Burr for allegedly dumping stock before the coronavirus news really broke. Democratic nominee Cal Cunningham is polling well here -- either moderately ahead or at worst tied.

6. Montana (Steve Daines - R): Governor Steve Bullock is another entry in the "thank you for abandoning a ridiculous POTUS bid and running for Senate instead" list, and he instantly turns this race into a real Democratic opportunity. Montana has been quietly getting more competitive over the past few years as the western half of the state and what passes for "cities" turn bluer, and Democratic Senator Jon Tester won a hotly contested 2018 Senate race by a close but not squeaky-thin 3.5% margin. Daines has the advantage of incumbency plus Trump's coattails, but Bullock is popular statewide. This has flown under the radar a bit, and I think Bullock's got a real shot.

7. Georgia (Kelly Loeffler - R [special]): This would place a lot higher if I was ordering based on "likelihood the incumbent loses". Loeffler, only recently appointed by Governor Brian Kemp, is abysmally unpopular in the Peach State, and right now she's polling fourth in a free-for-all election (behind fellow Republican Doug Collins and then two Democrats). The reasons are myriad -- Trump made it clear she was not his choice for the appointment, and she too has gotten into hot water over coronavirus-related trading -- but the end result is she's unlikely to even advance to the run-off. Unfortunately for Democrats, run-offs in Georgia have tended to sharply favor the GOP, so the most likely person to emerge from the scrum is Collins -- an even further-right Trump loyalist. There's also the alarming possibility that, in a highly fractured field, Loeffler manages to squeak into second and lock Democrats out entirely. Of course if that happens, Loeffler's only hope to prevail is to attract cross-over votes ....

8. Michigan (Gary Peters - D): Outside Alabama, this is by far the GOP's best chance for a 2020 Senate pickup. John James is a very strong candidate who ran a surprisingly close race against Debbie Stabenow in 2018, and he's back for a second crack at the Senate. Peters is not as well established as Stabenow was, and 2020 will likely not be as big a blue wave year as 2018 was. On the other hand, Democratic fortunes in Michigan seem to be on the rise, and Biden should perform better there than Clinton did in 2016. That's enough to make Peters the favorite, but not an overwhelming one.

9. Iowa (Joni Ernst - R): Once the ultimate bellwether, Iowa has seemingly been largely written off as a legitimate Democratic target, and for a long time Joni Ernst seemed to be coasting to re-election. But her numbers are surprisingly soft -- two polls this month have her deadlocked with her two most likely Democratic challengers -- and Democrats did win three of four Iowa House seats in 2018. She's definitely still the favorite, but an upset can't be written off.

10. Georgia (David Perdue - R): The other Georgia race, minus the particular "complexities" raised by Loeffler's unique unpopularity. That means most of the above analysis applies, but only more so for the Republicans. Georgia continues to creep towards purple status, but odds are it won't quite get there in 2020.

11. Kansas (Open [Pat Roberts] - R): Kris Kobach blew the Governor's race for the GOP in 2018, but that hasn't deterred him from seeking the Senate nod in 2020. It's possible he'll get it, and so it's possible he'll lose again. Democrats have rarely been competitive in the Sunflower State, but 2018 showed they had a heartbeat. Meanwhile, the state Republican Party has been in a state of near-civil war for years between (relative) moderates and true firebreathers. The latter camp had their man in the Governor's mansion in the form of Sam Brownback, and his experiment in scorched-earth conservative governance led the GOP to unprecedented unpopularity in a state they normally dominate in.

12. Kentucky (Mitch McConnell - R): I know I said Susan Collins would be the sweetest fruit, but if Mitch McConnell goes down I'll revise that assessment. It's unlikely -- Kentucky is blood red at the Presidential level, and McConnell has effectively infinite resources at his disposal. But Andy Beshear's win of the Governor's mansion showed that Democrats still can win statewide if the stars align, and McConnell, for all his power and sway, is actually very unpopular in his home state. A definite long shot, but not wholly out of range.