Polls, Political Realities, And The New York Times

During a recent lunch with my sister and a good friend, the topic (unsurprisingly) turned to politics. The three of us are, as the kids used to say, “in sync,” so it was more a session of “who in the world looks at Donald Trump and sees someone presidential?” But at the end, my sister voiced what has become a common complaint-cum-question: what is going on at the  New York Times? 

We’ve all noticed it; the Times seems intent upon highlighting anything that could be considered negative about the Biden campaign, while essentially ignoring Trump’s increasing dementia. When I say we’ve all noticed it, I have evidence; the day after our lunch, both Robert Hubbell’s newsletter and Josh Marshall in Talking Points Memo addressed the Time’s obvious bias.

Hubbell’s analysis was well worth reading.

He began by addressing the Times-sponsored poll that showed Biden currently trailing Trump. “The Times covered its own poll as front-page news for three days, ignoring three other polls from reputable organizations that showed Biden leading (slightly in one poll) or tied (in two polls).”

If the Times mentioned the three recent polls that contradicted the breathless coverage of its poll, I can’t find that story. What I can find is another front-page story about Joe Biden’s age. (NYTimes: Amid Age Concerns, the White House Tries a New Strategy: Let Joe Be Joe.) At the New York Times, “No news is good news”—because if there is good news about Biden, it’s not news at the Times.

Hubbell then reported on Trump’s most recent word-salad.

The gratuitous dig at Biden’s age was published on Super Tuesday—and after a weekend during which Trump melted into incoherence while he promoted anti-immigrant hate and election denialism, called the country of Argentina “a great guy,” was defeated in his attempt to pronounce “Venezuela,”  confused former President Obama and current President Biden, and asked the crowd to look at the back of his head because “I am like an artist.” (See Newsweek, Donald Trump’s String of Gaffes Over Weekend Raises Eyebrows.)

Calling those statements “gaffes” should be considered a campaign contribution. 

As Hubbell reported, the Times’ bias has become so noticeable, it is prompting coverage by other media outlets. He also shared an observation by another Substack author to the effect that polls are manufactured news events and  shouldn’t be considered “news events” at all–that Journalists “should not be in the business of creating news, especially in ways that they have the power to control.”

Hubbell quotes a commentary from Salon, There is something wrong at the New York Times | Salon.com

Two things…check that…three things appear to have gone off the rails at the paper we used to call the Gray Lady.  First, whoever is in charge of the paper’s polls is not doing their job.  Second, whoever is choosing what to emphasize in the Times coverage of the campaign for the presidency is showing bias.  Third, the Times is obsessed with Joe Biden’s age at the same time they’re leaving evidence of Donald Trump’s mental and verbal stumbles completely out of the news.

Hubbell noted that he’d watched Trump’s Super Tuesday victory speech, and that (in addition to appearing sedated) he was rambling, confused, and detached from reality.

Trump repeated an internet rumor that Biden “flew in 325,000 immigrants” into our country (a grotesque misrepresentation of how the CPB processes asylum applicants fleeing their home country). He descended into incomprehensible comments about Venezuelan oil being “tar” that is refined in the US and “goes up into the air” (complete with whirly-gig hand gestures). He repeated a dozen easily disprovable lies. Even though Melania was noticeably absent, he thanked his ”family” for being present.

Finally, Hubbell turned his attention to the polling, and shared numbers showing that Trump has continued to significantly under-perform FiveThirtyEight.com’s averages. In Virginia, he underperformed by 20 points, in Tennessee, by 10, Massachusetts by 14.

Many states did not have enough polls to qualify for a FiveThirtyEight average, but in Vermont, the most recent poll had Trump winning by 30%. In fact, Haley won by 4%, an underperformance by Trump of -34.

Trump over-performed in one state—North Carolina—by +5.

Like my sister, and many of you, I have been frustrated–and worried–by the mainstream media’s coverage of the polling and the candidates.

In the wake of Super Tuesday, Americans are facing an almost-certain choice between two candidates, both of whom are older than the candidates we’re used to. One of those candidates is a good, decent man who has drawn on his experience and wisdom to power a transformational–and very much under-rated–Presidency. The other is a morally-repulsive, intellectually-vacant ignoramus rapidly descending into dementia.

That’s the choice. The New York Times isn’t covering it. 

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Crime And Politics

In Indianapolis, municipal elections are held during otherwise “off” political years. Last year we were treated to an effort by  Jefferson Shreve, a rich Republican, to win the Mayor’s office. His campaign ads leaned heavily on assertions that our city was crime-ridden; given the Democratic tilt of the city electorate, the ads did make visible efforts to veil their more racist elements.

Despite spending $13 million dollars of his own money, Shreve failed to exceed the GOP’s base vote, so this year, he’s running for Congress. It’s a barely-purple district, and his television ads are much more explicitly “anti-woke.” Like most Republicans running for office this year, he’s clearly counting on anti-immigrant bias and an entirely bogus insistence that immigrants are the source of an (equally-bogus) American crime wave. 

He’s not alone in that dishonesty.

 NBC recently deconstructed Trump’s assertions of immigrant-fueled crime, reviewing expert analysis and available data from major-city police departments that show zero evidence of a migrant-driven crime wave in the United States. To the contrary, available data shows overall crime levels dropping in cities that have received the most migrants.  See also, Scientific American, (12/7/20) Undocumented Immigrants Are Half as Likely to Be Arrested for Violent Crimes as U.S.-Born Citizens.

When you think about it, it makes sense that people who are undocumented would want to keep a very low profile, in order to avoid deportation.

Another analysis of the available data confirms both the bogus nature of these claims and the political motivation for raising them.

The Republican Party wanted to run a 2024 election campaign on inflation and the economy. That made some sense in June 2022, when inflation was at a 40-year high of 9.1 percent. But now inflation has fallen to 3.1 percent, and unemployment has been below 4 percent for 24 months. Banging on about prices and the economy no longer seems like a winning strategy.

So the GOP has pivoted back to its standard tactics: fear-mongering, scapegoating, and bigotry.

Fox News is no longer talking about high prices 24/7. It now apparently believes the central problem of our day is … immigrant crime.

Public Notice publisher Aaron Rupar counted 27 mentions of “migrant crime” on Wednesday alone across Fox News and Fox Business. “Migrant Crime Sparks New Outrage Across US” one chyron screamed; the segment included giant mugshots of immigrant Latino men accused of crimes. Hosts hit President Biden for not discussing “migrant crime” during a speech he gave that day.

“It’s difficult to convince Americans that they are safe or becoming safer when they do not feel safe in this nation,” John Roberts proclaimed.

Americans don’t feel safe because Republican candidates constantly lie to them about their safety. These candidates have concluded that the only way they can win is by playing on racism and fear of crime–by creating a moral panic. There is absolutely no data supporting their accusations.

A 2020 Cato study of Texas found that for native-born Americans, conviction rates were 1,422 per 100,000. For undocumented immigrants, the rate was much lower — only 782 per 100,000.  And for legal immigrants, the rate was 535 per 100,000. Cato found that immigrants were less likely to commit violent crimes, property crimes, homicides, and sexual assaults than people born in the United States.

A 2023 Stanford study found similar results when it looked at imprisonment rates going back to 1830. Immigrants have basically always been imprisoned at lower rates; today, they are 60 percent less likely to be incarcerated than people born in the US. That’s in part because Black people are disproportionately targeted by the criminal justice system. But even if you just look at the incarceration rates of white people born in the US, immigrants are imprisoned 30 percent less.

Migrant crime is much less of a problem than crime by native-born people. But even native-born Americans are committing fewer crimes; crime rates overall are down.

Murder rates in 2023 fell by more than 12 percent from 2022, among the biggest recorded drops. Other violent crimes also decreased. Retailers claimed that there was a huge increase in shoplifting in the last few years — but that turns out to have been almost entirely a myth. 

As the linked article notes, GOP rhetoric may not be based in fact, but it does have (an unsavory) basis in demagoguery and racism. Linking marginalized groups to crime to build power and justify violence is, unfortunately, nothing new.

Of course, migrants do commit some crimes. In a country with some 45 million immigrants, it’s easy to find a handful of mugshots to put on your screen. But the scare tactic is nonetheless a scare tactic; there is not a sweeping crime wave perpetrated by immigrants. To say otherwise is a lie.

The GOP’s recent refusal to pass a border control measure that gave them virtually everything they’d demanded so that they can run on the issue really gives the game away.

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One More Time

There are numerous reasons to vote straight Blue this November. But forgive me for returning to my argument that reproductive rights tops them all, and not just because women deserve the same bodily autonomy as men.

In a very real sense, Justice Alito threw down the gauntlet in Dobbs. That decision didn’t just eliminate a constitutional right that American jurisprudence had recognized for fifty years–it dealt a potentially fatal blow to the philosophy upon which our  entire constitutional edifice rests.

Before I (once again) explain why that assertion is not hyperbole, let me connect the dots between Dobbs and the recent, blatantly theocratic decision from Alabama equating a frozen embryo with a living, breathing child. As Jamelle Bouie recently wrote in the New York Times, key parts of the Republican coalition demand fetal personhood.

There’s no question that the Alabama decision would not have been possible without the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion. In doing so, the court gave states and state courts wide leeway to restrict the bodily autonomy and reproductive freedom of Americans, in the name of protecting life.

That the Dobbs decision would threaten I.V.F. was obvious from the moment the Supreme Court released its opinion in June 2022. That’s why, toward the end of 2022, Senate Democrats introduced a bill to protect the right to use in vitro fertilization. It did not come up for a vote.

Bouie points out that the Justices who delivered Dobbs were placed on the Court as part of an explicit transaction in which Trump traded American women’s rights for the support of Evangelical voters.

What’s important, for thinking about a second Trump presidency, is that fetal personhood is the next battlefield in the anti-abortion movement’s war on reproductive rights, and conservative evangelicals are among those groups waving the standard. As one such activist, Jason Rapert of the National Association of Christian Lawmakers, told The New York Times regarding the Alabama court decision, “It further affirms that life begins at conception.”

At least 11 states, The Washington Post notes, have “broadly defined personhood as beginning at fertilization in their state laws.”

It does not matter whether Trump rhetorically supports access to I.V.F. treatments. What matters is whether he would buck the priorities of his most steadfast supporters and veto a bill establishing fetal personhood across the United States.

As we all know, he would not.

A Republican win in November would guarantee further erosion of reproductive rights– but as I have repeatedly argued, it would do far more than that.

Dobbs was a frontal attack on the doctrine of substantive due process, often called the “right to privacy.” That doctrine confirmed the American principle that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was  explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.

The majority recognized that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights.  Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.

Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process. Dobbs thus opened a pathway to an enormous expansion of government power.

Outlawing IVF is just a way station…..

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My Cousin’s Intriguing Comparison

I periodically post about insights shared with me by one of my cousins, who recently forwarded a recent blog post of his own, containing an intriguing comparison between America’s battle over reproductive rights and prohibition. With his permission, I’m sharing much of what he wrote.

Prior to 1920, there were few restrictions on the production and consumption of alcohol. But after that, the manufacture, sale, and transportation of alcoholic beverages in the United States was made illegal until 1933 under the terms of the Eighteenth Amendment. Major support for this amendment was provided by groups with strong religious ties that included many Protestants, together with a national grassroots base comprising the Woman’s Christian Temperance Union. Ironically, most of the ardent supporters of prohibition were located in rural areas, and they were, to a large extent, pitted against a majority of urban dwellers.

But most Americans have always objected to the removal of a widely available right, and this resulted in widespread flouting of the law banning alcohol, especially in urban areas. Finally, under pressure from a national majority, the twenty-first amendment permitting alcohol was passed, which then ceded responsibility for alcohol policy to the individual states, and as we now know, this has resulted, with few exceptions, in the widespread national acceptance of alcohol.

From these experiences derived from prohibition, we have learned two important lessons that should attract the attention of all, especially those who are anti-abortion: 1) Americans are loath to give up established rights, and 2) religious groups, even if large in number, cannot impose their will on a reluctant majority for extended periods.

And now we are presented with an eerily similar circumstance: For a half century, the general population was enjoying freedom of choice through rights granted by the Supreme Court (Roe vs Wade), and now this right has been abruptly revoked, and this responsibility was passed on to the individual states. And if history is any guide, the vast majority in most states will press for return to something resembling their previous freedom… 

The rest of his column looked at the likely outcome of allowing individual states to regulate reproduction. I think it is far more likely that Congress will ultimately codify Roe v. Wade–but only if Democrats win control of both houses. 

And that brings me to Indiana, and our open Senate seat.

Marc Carmichael has pledged to work for codification of Roe. (As he frequently notes, he has granddaughters who deserve fundamental rights.) Jim Banks not only supports a national abortion ban with no exceptions–not for rape, incest or the life of the mother–but actively opposes measures that would facilitate or protect access to birth control. He was one of the Republicans who voted against the Right to Contraception Act, a bill intended to “protect a person’s ability to access contraceptives and to engage in contraception, and to protect a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.” 

The Right to Contraception Act was essentially an effort to codify Griswold v. Connecticut. Griswold was a precursor case to Roe, in which the court held that a couple’s decision to use birth control was none of government’s business–that individuals have a constitutional right to personal autonomy, aka privacy.

I’ve linked to the text of the bill, passage of which was blocked by Republicans.

In the wake of the Dobbs decision, GOP operatives hastened to assure voters that the party wasn’t coming for contraception–that, to the contrary, with abortion banned, access to birth control would be expanded. Their actions, however, proved how hollow–indeed, dishonest– those assurances were. Red states rushed to pass “personhood” amendments that enabled the recent theocratic attack on IVF in Alabama. The decision in the Hobby Lobby case continues to allow employers with “sincere religious objections” to deny birth control coverage to employees whose “sincere religious beliefs” differ.

I believe my cousin was exactly right to compare the politics of the Republican war on reproductive liberty to prohibition. In both cases, self-appointed “god squads” have tried to enlist government to impose their views on everyone else.  In both cases, huge majorities of Americans disagree with those views. Those majorities defeated prohibition, and I am confident will vote to secure women’s rights to birth control and abortion.

The battle reminds me of that famous line from Network. To paraphrase, American women are mad as hell, and we’re not going to take it anymore; we’re not going back to being submissive, barefoot and pregnant.  We’re going to defeat Jim Banks and his fellow misogynists and send allies like Marc Carmichael to the U.S. Senate.

I think I’ll go drink to that…..

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Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?
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