Episode 22: Don't Fear the Reaper
Senate confirmation hearings on the nomination of Amy Coney Barrett (ACB) to the Supreme Court have concluded. The judiciary committee of 22, chaired by Lindsey Graham (R-SC), grilled ACB for 20 hours this week. The 48-year old nominee gave her opening remarks, followed by several days of political grandstanding by Senators on both sides of the aisle. ACB was unflappable throughout the hearings and, at the very least, proved she has the temperament and demeanor of a justice. It's also clear she's a remarkable human being. She calmly answered a barrage of questions on various topics without notes or a briefing book. ACB is a law professor, a presiding judge on the US Court of Appeals for the 7th Circuit, and a mother to seven children (two adopted from Haiti and one with a disability). These hearings seemed to be an enjoyable break from her regular schedule. I'm not a fan of Marvel movies, but if they are looking for their next superhero, they may want to interview ACB.
The hearings revealed little about Barrett's view on significant legal issues. Democratic Senators asked her about cases such as National Federation of Independent Business v Sebelius (Affordable Care Act), Roe v Wade (abortion rights), and Obergefell v Hodges (same-sex marriage). However, ACB continuously cited what's become known as the "Ginsburg rule:" no hints, no previews, no forecasts. Nominees to the highest court in modern times have suggested that judicial ethics require that judges should not weigh in on any issue that could come before them as a justice. Accordingly, ACB maintained that if she signaled one way or another on these topics, it would invite litigants to frame legal strategies around her comments. However, the hearings did get clarity from ACB on the following:
She is an "Originalist" in her judicial philosophy. Like her mentor Antonin Scalia, she believes her role as a judge is to apply the law as written, not as she wishes it were. John Adams famously noted that we are a "government of laws and not of men" and that Congress's role (not SCOTUS) is to make/change/evolve laws. SCOTUS's job is to apply those laws to real situations and determine whether a law violates the Constitution. Barrett said during the hearings, "when I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how I would view the decision if one of my children were the party I was ruling against. Even though I would not like the result, would I feel that the decision was fairly reasoned and grounded in law? That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court."
She firmly stated that she has no political agenda and didn't make a deal with President Trump or the Republican Party on any issue before her nomination.
She suggested that her religious beliefs would not interfere with her ability to be an impartial judge and that she would recuse herself on a case if there were a conflict of interest.
The committee will hear from an outside panel of supporters and opponents of ACB's nomination on Thursday and likely approve her nomination along party lines on October 22nd. Senate Majority Leader Mitch McConnell (R-KY) will call for a full Senate vote as the final step. Republicans hold a 53-47 edge in the Senate, and 50 votes are needed to confirm ACB's nomination. As long as 50 of the 53 Republican senators support her confirmation—and are healthy enough to show up for the vote--Democrats can't do much to stop it. Currently, at least 51 Republican senators favor her confirmation.
The Communications Decency Act, otherwise known as Section 230, is obscure legislation passed in 1996. The bill intends to protect free expression on the internet, shield internet companies from liability for users' content, and grant companies legal immunity for reasonable faith efforts to remove content that falls outside the 1st amendment. Companies such as Facebook, Twitter, and Google argue that they couldn't exist without such laws. However, there are critics of Section 230 on both sides of the political fence. Democrats say that tech companies need to be more accountable for hate speech, extremism, and misinformation campaigns. Republicans argue that tech companies hide behind the Act to censor conservatives and limit their social media reach. Some restrictions have been added to 230 to make it easier to sue internet platforms that knowingly aid sex trafficking, but the law still provides broad protections. This background is the preamble to this week's story published in the New York Post about unverified emails purportedly taken from Hunter Biden's laptop that describe a meeting between Joe Biden and the Ukrainian company that had Hunter Biden on the payroll. Other material extracted from the computer includes a 12-minute video that appears to show Hunter smoking crack while engaging in a sexual act with an unidentified woman. The laptop allegedly was left at a computer repair shop, and the owner delivered the computer to Rudy Giuliani, Trump's attorney. There are questions about the story's integrity, which led Twitter and Facebook to reduce the article's spread by blocking links and removing content. Twitter CEO Jack Dorsey has since apologized for those actions and revised company policy. Still, the Senate judiciary committee plans to subpoena him and possibly Mark Zuckerberg to testify on the matter. Both CEOs, along with MSFT, Apple, and Google's leaders, are already set to testify to Congress later this month regarding concerns over privacy, antitrust, and censorship.
The election is in 18 days. President Trump appears to have fully recovered from COVID and is back on the campaign trail. He made an hour-long speech at a rally in Florida and will participate in at least two events per day until the election. President Trump declined to participate in the second presidential debate, and the replacement format was two dueling town halls. President Trump aired on NBC, where Savannah Guthrie interrogated the president. The event was contentious and didn't have the feel of a town hall. Instead, Guthrie took Trump to task on many topics and even interrupted the town hall participants to debate Trump directly. Joe Biden's town hall aired on ABC, and moderator George Stephanopoulos created an environment that felt like an after school event of milk and cookies with Mr. Rogers. I'm not sure if either event was impactful to undecided voters, but it was astonishing to watch the contrast in town halls. The third and final presidential debate is next week in Nashville, TN.
Early voting is off to a record start. The number of people who have cast early ballots is approaching 20 million. By comparison, there were 6 million votes at this point in the 2016 election. Some estimates are 150 million people (65% of eligible voters) plan to cast ballots in the election, which would be the highest turnout ratio since 1908. Younger people, who historically have been challenging to get to the polls, appear to be turning out in large numbers. Generally, early voters favor Democrats, and reports indicate that early voters this year are disproportionately women and black Americans motivated by a distaste for President Trump. Republicans believe that President Trump supporters will show up in large numbers on Election Day.
The spread of coronavirus is accelerating worldwide, with the global seven-day moving average exceeding 330,00 cases per day. Canadian public health officials warned residents to stay home based on the recent exponential growth of cases. Prime Minister Justin Trudeau said, "we likely won't be gathering for Thanksgiving, but we have a shot at Xmas." While Canada's daily infection numbers are still relatively small at 2,000 per day, the infection rate grew 40% last week. More than 80% of new infections are from Ontario and Quebec, and those under 40 account for 60% of the cases. Italy plans to introduce nationwide restrictions amid an outbreak that has pushed daily cases above 5,000 for the first time since March. This week the US surpassed 50,000 new daily COVID cases, and the trend is headed in the wrong direction. The increase in cases is likely due to three factors:
People are returning to social activities because of pandemic fatigue.
Young people are back at school.
Indoor transmission is increasing as cooler fall weather drives people inside.
These trends paint an ominous picture for the next few months as people travel and gather for the holidays and are increasingly driven indoors due to cold weather.
The IMF held its annual meeting this week and released its 2020 World Economic Outlook. Most economies around the world have rebounded off their lows but are nowhere near pre-COVID levels. The IMF said the global economy would shrink by 3% in 2020, and that will mark the steepest global downturn since the Great Depression of the 1930s. US retail sales increased in September for the fifth month in a row. Vehicles, sporting goods, and home-improvement stores were the top producing categories. Retail sales are a measure of purchases at stores, restaurants, and online but do not capture healthcare, hospitality, and other services, which makes up the bulk of US spending. September is a hinge month because it's between back-to-school and the holiday season, so strong retail numbers in September generally foreshadow a robust holiday season. However, some economists suggest September results may be "catch-up" spending as consumers buy items that they didn't purchase in the Spring. Furthermore, other economic signals indicate the recovery is losing momentum. New applications for unemployment benefits, a proxy for layoffs, rose last week to the highest level since August. US industrial production—a measure of output at factories, mines, and utilities—fell a seasonally adjusted 0.6% in September, snapping four months of growth.
On the lighter side, Amazon's Prime Day was this week, otherwise known as buy-stupid-shit-you-don't-need day. If anyone wants to borrow a Silpat Premium Non-Stick Silicone Baking Mat, I'm now your guy! Today marked the first day in seven months that Hawaii will open to tourists without a mandatory 14-day quarantine period. Visitors may now enter the islands with a negative COVID test (from an approved list of testing partners) within 72 hours of arrival. ALOHA! Lebron James and the LA Lakers won the NBA title over the Miami Heat. That's title #17 for the Lakers, tying the Boston Celtics for most league history. King James now has four championships from three different franchises—Miami, Cleveland, and the Lakers. In tennis, Rafael Nadal defeated Novak Djokovic to capture his 20th Grand Slam title, tying Roger Federer's record. Apple announced its new iPhone 12 with 5G capability. However, 5G networks are still building out, so it's unclear if there's a compelling reason to upgrade. The Tasmanian devil is back in Australia after a 3,000-year absence, and it looks nothing like the cartoon character. Humans are to blame for the disappearance of the animal. However, the devil survived on the island of Tasmania, and a nonprofit organization has bred them in captivity and released 15 in Southwest Australia. The plan is to introduce 40 more over the next few years and create a self-sustaining population.
I. Below are the articles I found interesting the past week:
A show of hands if you like having a boss? (Crickets) A show of hands if you like working with a leader? (Most hands) There's a vast difference between a boss and a leader. Bosses command, micromanage and deflect. Leaders teach, trust, and take ownership. Bosses have big egos, think short-term, and take credit. Leaders are self-assured, think long-term, and give credit. Most companies have bosses, but the great ones have leaders. Investing in yourself and your team and developing leadership is one of the most important investments you can make to grow your business. As you prepare budgets for 2021, review the money you plan to invest in yourself and the team for professional growth and development. Are you investing for growth or harvesting for cash? I can assure you that your business will only grow as fast as you grow your and your team's leadership.
Problem-solving is a critical skill for business and life. I wish everything was black and white and fit neatly in a square container to appease my linear and process-oriented brain. However, life and business can be messy. I mean REALLY messy. People who can tolerate uncertainty and be flexible are more likely to find success (and happiness). Of course, someone who is patient and flexible but lacking other traits such as motivation, creativity, resourcefulness, and problem-solving skills won’t get much farther than the park bench. Developing these skills and learning how to be a problem solver in a world that feels increasingly complicated is an important skill to develop.
Six problem-solving mindsets for very uncertain times
Commercial rents are falling in most parts of the country. That’s especially true in urban centers like Manhattan. Rent on Madison Ave’s high-end shopping corridor fell 17% in Q3. Most retail districts in Manhattan reported sinking commercial rents of between -10-20% this quarter YoY. There’s also an abundance of unused space as stores shutter and companies go bankrupt. Madison Avenue has 35% of the total commercial area available and Times Square 29%. Despite the fallout, many believe commercial rent remains artificially high. Whereas prices for most items are a reflection of supply and demand, commercial properties exhibit unique characteristics that may defy basic economic principals: 1) some landlords can afford to be patient and hold out for better days 2) some landlords can’t lower rents based on agreements with lenders 3) lower rents can lead to depressed property values, and that’s the last thing a landlord wants to happen. The problem with this “game of chicken” between tenants and landlords is that it hampers economic development. Artificially high rent forces many small businesses into insolvency or creates barriers to entry, and neighborhoods and cities suffer. The government can play an essential role in course-correcting free-market forces when they malfunction.
New York’s commercial rents are 'too damn high'
II. The rest of the best
What is secure attachment and bonding?
New forgiveness application for PPP borrowers with smaller loans
How to own your leadership role
III. Stats that made me go WOW!
- If you look at the views on abortion, you will find that 66% of women and 74% of men favor at least some restrictions on abortion, according to Gallup. It’s also interesting that views on abortion haven’t changed that much since 1975. For women, 51% self-identified as “pro-choice” in 1975, and that figure is 53% in 2020. For men, 50% self-identified as “pro-choice” in 1975, and that figure has dropped to 43% in the current year. However, when it comes to Roe v Wade and legal abortion rights for women, only one in three Americans favors overturning it.
- On average, 164,000 people die every day, and over 383,000 people are born. Spoiler alert: none of us are getting out of here alive!
- Restaurants are mostly back open but operating at reduced capacity. That’s positive news but one top restaurateur said his restaurants are seeing 50% of the average check amount without the business-community customers who typically frequent his establishments.
- Amazon Prime Day event revenue by year: +$10 billion estimate (2020) $6.93 billion (2019), $4.13 billion (2018), $2.47 billion (2017), $1.5 billion (2016)
IV. Name that Tune!
As I write this email, I am listening to (Don’t Fear) The Reaper by Blue Oyster Cult.
Blue Oyster Cult is an American rock band formed in Stony Brook, New York, in 1967. They have sold 25 million records worldwide. However, two hit singles, The Reaper and Burnin’ For You, created the band’s success. John Carpenter used The Reaper in his horror film classic, Halloween in 1978. The song is about the inevitability of death and the foolishness of fearing it, and it ranks as #405 on Rolling Stones list of the top 500 songs of all time. The original music video is awful, and it would be irresponsible not to feature the SNL video spoof from April 2000. The skit featured Christopher Walken as a music producer and Will Farrell as a fictional cowbell player in the band. SNL stars Jimmy Fallon, Chris Parnell, Chris Kattan, and Horatio Sanz are in the scene. Walken’s line “more cowbell!” is hilarious, and Farrell’s performance stupendous. I hope you take a moment to watch the video and share a laugh with me!
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