Unlike some people, I actually did just quit my job. As I stepped out to clear my head, what did I see but majestic deer and scampering lizards on a beautiful Bay Area September day?
How’s your Monday going?
by Major Major Major Major| 172 Comments
This post is in: Open Threads
Unlike some people, I actually did just quit my job. As I stepped out to clear my head, what did I see but majestic deer and scampering lizards on a beautiful Bay Area September day?
How’s your Monday going?
by Adam L Silverman| 151 Comments
This post is in: America, Crazification Factor, Election 2016, Election 2018, Foreign Affairs, Open Threads, Politics, Popular Culture, Post-racial America, Silverman on Security, Not Normal
Not to step on Dave’s post, but this is a fast moving story. Here’s the most recent reporting:
Vacancies Act means if a senior official "dies, resigns, or is otherwise unable to perform the functions and duties of the office," then president can fill it w/someone already confirmed by Senate for a period of time w/o being reconfirmed. Being fired doesn't qualify as reason.
— Jeremy Pelofsky (@wdcscribe) September 24, 2018
What does this exactly mean? Here’s a quick explainer on the Vacancy Act that Steve Vladek at Lawfare did when VA Secretary Shuklin was either fired (according to Shulkin) or resigned (according to the White House):
One of the obscure federal statutes that has come to prominence in the Trump administration is the Federal Vacancies Reform Act of 1998 (FVRA), a statute designed to increase the president’s flexibility with respect to filling vacancies within the executive branch on a temporary basis. Most discussion of the FVRA has centered on the Justice Department, and whether President Trump could use the statute to replace Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, or both, with someone from outside of the Justice Department. But the real action with the FVRA has largely involved the Department of Veterans Affairs—with respect to which the White House has now completely bungled matters, twice.
Let’s start at the beginning: When a federal office becomes vacant, the default is usually that the “first assistant” to that office is entitled to exercise the functions of the office (but does not formally ascend to the office) on a temporary, or “acting,” basis. But both because numerous positions don’t have obvious “first assistants” and because sometimes there’s no one holding that position, either, Congress in 1998 sought to provide a bit more flexibility to the president when filling many—if not most—vacancies in federal offices.
Thus, as the FVRA provides, when an executive branch officer whose position requires Senate confirmation “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the default is still the “first assistant,” but the president can override that default—and choose any other executive branch officer holding a Senate-confirmed position, or some senior, non-Senate-confirmed officers from the relevant agency, to exercise the functions of the office for no more than 210 days. The two big questions that the FVRA raises but does not answer are whether (1) it overrides all agency-specific succession statutes, such that the FVRA process is always available; and (2) even if it does, whether it applies when the vacancy is created by the president—i.e., when the prior permanent officeholder is fired, rather than dies or resigns.
The former question is hypertechnical. (With regard to the Justice Department, at least, the Office of Legal Counsel has concluded that it can be used in lieu of the more specific DOJ succession statute.) The latter question is much more important—and much less clear. Although the text of the statute could be read to encompass allvacancies (and at least one senator said on the floor that it would apply to firings), there are strong prudential and contextual arguments militating in the other direction—including that the purpose of the FVRA is to give the president flexibility to deal with unexpected vacancies, not to create vacancies himself and then sidestep existing succession schemes. Indeed, if the answer to both questions is “yes,” then the president would have the power not only to create vacancies in every executive branch office, but to fill them on a temporary basis with individuals who were never confirmed by the Senate either to that specific position, or, in some cases, at all. It’s easy to see, then, why the FVRA has loomed large in the repeated rumors over succession at the Department of Justice.
But for all of the focus on the Justice Department, the real flashpoint for the FVRA lately has been the Veterans Affairs Department (with an honorable mention to the Consumer Financial Protection Bureau). In late March, President Trump fired the VA Secretary, David Shulkin, and named a Pentagon undersecretary, Robert Wilkie, to serve as acting secretary under the FVRA. (The VA has its own succession statute, but that statute expressly incorporates other authorities.) Thus, Wilkie raised the big FVRA question: Does it apply when the vacancy is created by the president firing the incumbent? (Veterans’ groups brought a lawsuit arguing that the answer was no.)
Shortly after Shulkin was fired, however, the White House began arguing—loudly—that Shulkin had not been fired, but that instead, he had resigned. The only reason why this could have mattered is the FVRA: If the statute does not apply to vacancies created by the president, then Wilkie could not have been named to serve as acting VA secretary—and any actions he undertook in his capacity as acting VA secretary were subject to legal challenge. Thus, the White House, at least, seemed wary of the second FVRA question. (President Trump also ran into a different statutory problemwhen he nominated Rear Adm. Ronny Jackson, the White House doctor, to hold the position on a permanent basis, but that issue was mooted by Jackson’s withdrawal.)
This brings us to the latest VA-based FVRA kerfuffle: Last Friday, President Trump surprised everyone (including the putative acting secretary) by announcing at a public event that he was nominating Wilkie to hold the position of VA secretary on a permanent basis. Small problem: The FVRA expressly prohibits such a move. Although the FVRA allows lots of folks to hold an office on an acting basis, one of the few exceptions is an individual who has not been the “first assistant” to the office for at least 90 days who is then nominated by the president to hold the office permanently. Put another way, Wilkie’s formal nomination, by dint of the FVRA, disqualifies him from continuing to serve as acting secretary. This is not an open question about the FVRA; it’s compelled by the plain text.
Wholly apart from what this whole mess says about how seriously the Trump administration takes the VA (which is to say, not), it also suggests two important, related points about the FVRA: First, the White House is at least outwardly wary of the open question concerning its application in cases in which the vacancy is created by firing. It might therefore be a bit gun-shy about relying on the FVRA in a higher-profile case going forward. Second, the White House (or, at least, the president) doesn’t seem to fully understand the FVRA—as evidenced by the Wilkie mess. Neither of these conclusions is earth-shattering, of course. But both could be important markers for the vacancy fights to come.
This is going to be an ongoing, fast moving story. Expect it to change several times over the next few hours until all the details are nailed down. And then expect that regardless of those actual details, the White House will claim that Rosenstein resigned, so they can just use the Vacancy Act to slide someone already approved by the Senate into the position. They’ve done this several times now – at VA and the Consumer Financial Protection Bureau – to circumvent the rules.
I think it is also important to note that once again the President is trying to fire or force out by pressuring a senior appointee to resign and he can’t bring himself to actually do it. He either has someone else do it, as was the case with Comey and now, potentially, Rosenstein or he does it by passive-aggressive tweet.
Update at 12:15 PM EDT
He spoke before this meeting with COS Kelly. On Saturday, Rosenstein and Kelly had a conversation about his tenure in wake of NYT story about wiretapping White House
— Del Quentin Wilber (@DelWilber) September 24, 2018
Pete Williams is now suggesting that this meeting at the White House could be a clearing of the air and Rosenstein may keep his job.
— Josh Dorner (@JoshDorner) September 24, 2018
Here’s what I think happened, someone called up Jonathon Swan at Axios, and leaked that Rosenstein was resigning, in order to create a fait accompli by boxing in the President Swan, like The New York Times‘ reporters on Friday, appears to have been manipulated and used by their sources for those sources’ own interests.
We are off the glass and through the map.
Happy infrastructure week!!!
Open thread.
This post is in: Open Threads, Politics, Republican Stupidity, The War On Women, Women's Rights Are Human Rights, Assholes, General Stupidity
Skulking around the UN building and looking for an opportunity to embarrass us on the global stage yet again, Trump commented on the Kavanaugh controversy:
— TPM Livewire (@TPMLiveWire) September 24, 2018
A written account of the remarks for those who can’t bear to hear Trump’s snuffling, sneering delivery:
President Donald Trump on Monday affirmed his continuing support for Supreme Court nominee Brett Kavanaugh despite the second allegation of sexual misconduct against him that surfaced Sunday, saying that it’s “unfair,” “unjust” and “totally political.”
“He is a fine man with an unblemished past and these are highly unsubstantiated statements from people represented by lawyers,” Trump said on the sidelines of an event at the United Nations. “We should look into the lawyers doing the representation. Judge Kavanaugh is an outstanding person, and I am with him all the way.”
“There’s a chance that this could be one of the single most unfair, unjust things to happen to a candidate for anything but I am with Judge Kavanaugh and I look forward to a vote,” Trump continued. “For people to come out of the woodwork from 36 years ago and 30 years ago and never mention it, all of a sudden it happens, in my opinion, it’s totally political.”
This is a nightmare scenario for the GOP no matter what they do, IMO. If Kavanaugh withdraws or the nomination otherwise fails, the evangelical hypocrites will pitch an ear-splitting hissy fit. I’ve rarely seen them so dug in on an issue.
If Kavanaugh is seated despite credible allegations of sexual assault, non-brainwashed women will rightly see it as an elite old boy’s club — led by a leering, highly unpopular degenerate who will no doubt continue to say offensive things — closing ranks around one of their own miscreants.
One way or another, they seem very eager to die on this hill.
by Alain Chamot (1971-2020)| 30 Comments
This post is in: On The Road, Open Threads, Readership Capture
Good Morning All,
On The Road and In Your Backyard is a weekday feature spotlighting reader submissions. From the exotic to the familiar, please share your part of the world, whether you’re traveling or just in your locality. Share some photos and a narrative, let us see through your pictures and words. We’re so lucky each and every day to see and appreciate the world around us!
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Have a wonderful day! For me, it is really iPhone day, as mine arrives tomorrow, not last Friday. First World Problems!
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Today, pictures from valued commenter Wag.
My wife, Beth, and I have made it a tradition to celebrate our anniversary in August by climbing 14,000 ft tall peaks in our home state of Colorado. This year we ventured to the Sangre de Cristo range to climb in an area called the Crestones. Crestone Peak and Crestone Needle are two of the more rugged peaks in Colorado, and were the last two 14er’s to be climbed, with respective first ascents on July 23 and 24, 1916. The team that climbed them, Eleanor Davis and Albert Ellingwood, were an amazing pair of mountaineers.
Taken on 2018-08-31 00:00:00
A view of the west side of the Peak and Needle. We climbed the trough
Taken on 2018-08-31 00:00:00
Approaching the Peak
Taken on 2018-09-01 00:00:00
Crestone Needle and Peak As seen from nearby 14er, Mt Humbolt
Taken on 2018-08-31 00:00:00
We woke at 4:30 on the day of our climb and climbed our first objective, Broken Hand Pass, in the dark. We then descended the west side of the Pass to Cottonwood Lakes.
Taken on 2018-08-31 00:00:00
We had hoped to climb the Needle after the Peak, but it began to hail as we re-ascended Broken Hand Pass, forcing us to give up that plan. We will return next season to climb the Needle.
The next morning, we climbed Mt Humbolt, another 14er across the valley from the Crestones, giving me a chance to take the photo that opened this series.
Thank you so much Wag, do send us more when you can.
Travel safely everybody, and do share some stories in the comments, even if you’re joining the conversation late. Many folks confide that they go back and read old threads, one reason these are available on the Quick Links menu.
One again, to submit pictures: Use the Form or Send an Email
This post is in: Election 2018, Open Threads, Proud to Be A Democrat, Republicans in Disarray!, Women's Rights Are Human Rights, All we want is life beyond the thunderdome
Live your life like Ronan Farrow's gonna find out what you did eventually.
— James Poniewozik (@poniewozik) August 27, 2018
people ask what i like to do in my free time as if keeping up with the day's news cycle and meme cycle leaves any wiggle room
— Astead (@AsteadWesley) April 5, 2018
Enough is enough. One credible sexual assault claim should have been too many to get a lifetime appointment to the Supreme Court and make decisions that will affect millions of women’s lives for generations. Two is an embarrassment. It’s time for a new nominee.
— Kirsten Gillibrand (@SenGillibrand) September 24, 2018
“By 3 percentage points, men want Republicans rather than Democrats to control Congress, 47% to 44%. Women, by contrast, favor Democratic control by 25 percentage points—58% to 33%.” https://t.co/TJAPndb93Q
— Daniel W. Drezner (@dandrezner) September 23, 2018
If it weren’t for persistent Repub thimble-rigging, I’d say November was ours to lose. But least we’re doing our best to make it harder for them to steal another election!
Benjamin Wallace-Wells, in the New Yorker, “Is the G.O.P. Actually in Trouble in the Midterms?”:
… There are just forty-eight days until the midterm elections. The primaries are finished, and the slate of candidates is set. Republicans are alarmed. Their own internal polling suggests that, on the so-called generic ballot for the House of Representatives, American voters prefer Democrats over Republicans by nine percentage points…
… Paul Ryan is leaving Washington, and his libertarian brand of conservatism has lost its vogue. Trump’s Presidency has been full of warlike gestures but devoid of strategy: having promised a politics that would elevate those left behind, he has crafted tax policies that favor the rich and a failed health-care plan that would gut protections for working-class Americans. And, having won by slim margins in 2016 in the upper Midwest, he has imposed an aggressive tariff program that has meant chaos for farmers, who are struggling to sell their products overseas. The Republican Party is out of ideas...
Parties remake themselves by winning. Victories bring new talent to Washington. The Democratic primaries this summer were widely said to have moved the Party to the left, but the mechanism for this shift was a succession of charismatic young candidates, each presenting a different version of the Party’s future. There was the working-class pugnacity of Randy Bryce, in Wisconsin; the sunny millennial socialism of Alexandria Ocasio-Cortez, in New York; and the historic turn promised by two talented black progressive politicians in the South—Stacey Abrams, in Georgia, and Andrew Gillum, in Florida. These candidates’ base, and maybe the future of the Democratic Party, has hinged on the increasing progressivism of cities across the United States and the idea that the politics of Brooklyn are no longer so out of place in Atlanta, Orlando, Fort Lauderdale, New Orleans, or Phoenix—and that a forthrightly progressive politics has a chance in the states where those cities dominate…
by Adam L Silverman| 231 Comments
This post is in: America, Crazification Factor, Criminal Justice, Election 2016, Election 2018, Open Threads, Politics, Popular Culture, Post-racial America, Not Normal
Michael Avenatti has released his email correspondence with Mike Davis, who is Senator Grassley’s Chief Counsel for Nominations for the Senate Judiciary Committee.
My e-mail of moments ago with Mike Davis, Chief Counsel for Nominations for U.S. Senate Committee on the Judiciary. We demand that this process be thorough, open and fair, which is what the American public deserves. It must not be rushed and evidence/witnesses must not be hidden. pic.twitter.com/11XLZJBTtY
— Michael Avenatti (@MichaelAvenatti) September 24, 2018
So you don’t have to squint, here’s the email correspondence that Avenatti tweeted:
As I’ve been saying in comments for several days, there is a lot of time between now and when Dr. Blasey testifies on Thursday for more shoes to drop, let alone between now and the following week, which is most likely when Senator McConnell will try to schedule the floor vote on Judge Kavanaugh’s nomination. And Avenatti is just beginning his campaign of death by a thousand twitter cuts.
Open thread.
Avenatti Drops a Bomb on the Senate Judiciary CommitteePost + Comments (231)
by TaMara| 276 Comments
This post is in: Open Threads, Assholes, The Republican Crime Syndicate
Because we knew this was inevitable. Again, I spent the day offline and once I popped back up, twitter was all atwitter about this:
Ok, I speed-read this and my instant takeaways:
1) Meticulously researched and sourced by Ronan Farrow and Jane Mayer – as always
2) The new accusation of Kavanaugh exposing himself to a classmate is damaging but only so much
1/
— The Hoarse Whisperer (@HoarseWisperer) September 24, 2018
I’m going to go read the article now. Open thread.