Heather Cox Richardson - Letters From an American II

[Go Bama]

March 20, 2022 (Sunday)


Tomorrow, the Senate will begin confirmation hearings for Judge Ketanji Brown Jackson, nominated by President Joe Biden on February 25, 2022, to take a seat on the Supreme Court of the United States. Judge Jackson is currently a federal judge on the United States Court of Appeals for the District of Columbia Circuit. This small circuit is prominent and prestigious because its location in Washington, D.C., means that it decides cases concerning the U.S. government. It is often seen as a stepping stone to the Supreme Court. Three current members of the court—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Brett Kavanaugh—served previously asjudges on the D.C. Circuit.

Judge Jackson has a wide range of experience, having both worked in private practice at corporate firms and served as a public defender, during which time she defended detainees at Guantanamo Bay. After earning her degrees from Harvard University and Harvard Law School, where she was a supervising editor on the prestigious Harvard Law Review, she served as a law clerk for three judges, including Justice Stephen Breyer of the Supreme Court, whose seat she has been nominated to fill.

Today, reporters are focusing on how she might decide on cases relating to hot-button issues like abortion and gun rights. But what is at stake with our current Supreme Court is far broader than the question of how a justice will vote on any one issue: it is whether the federal government can protect the rights of citizens from state laws taking away those rights.

This question comes from the 1940s. In the wake of World War II, the gap between America’s stated democratic principles and the abusive treatment of racial minorities and women, especially in the southern states, was so glaring that pressure built to reinforce the idea that our laws should apply to everyone equally. Media-grabbing stories, like that of the sheriff who was acquitted by an all-white jury after putting out the eyes of Black veteran Issac Woodard, looked far more like Nazi Germany than Americans liked.

But the laws necessary to protect Black and Brown Americans, including returning veterans, could not pass Congress because of the resistance of segregationist Democrats. So, under the guidance of Chief Justice Earl Warren, the former Republican governor of California, the Supreme Court began to protect Black Americans from abuse by using the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states.

The Fourteenth Amendment was ratified in 1868 as former Confederates in charge of state legislatures passed laws relegating formerly enslaved Americans to a state of second-class citizenship. The amendment addressed that legal establishment of racial hierarchies by stating, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment gave Congress the power to enforce the amendment “by appropriate legislation.”

In the 1950s, the Supreme Court based civil rights decisions on the Fourteenth Amendment, and it continued that trajectory in the 1960s and 1970s. The 1954 Brown v. Board of Education decision outlawing segregation in public schools, the 1965 Griswold v. Connecticut decision protecting the right of married couples to contraception, the 1967 Loving v. Virginia decision permitting interracial marriage, and the 1973 Roe v. Wade decision protecting a woman’s right to abortion without excessive government regulation all come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

But opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. These opponents began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level.

Those who embraced this literal version of the Constitution called themselves “originalists” or “textualists,” and their intellectual representative was Justice Antonin Scalia, whom President Ronald Reagan appointed to the Supreme Court in 1986. The following year, six Republicans joined Democrats to reject extremist Robert Bork, who had called for the rollback of the Supreme Court’s civil rights decisions.

At the time, Senator Ted Kennedy (D-MA) warned that “Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”

Kennedy’s words then seemed outlandish, but now, thanks to the three Supreme Court appointments by former president Donald Trump, six of the nine members of the court are originalists. They have indicated their willingness to permit state legislatures to act as they wish, overturning constitutional rights like abortion, outlawing “divisive” instruction in our classrooms, and suppressing the vote of minority voters.

Stephen Breyer, under whom Jackson clerked, offered a new intellectual counterpoint to originalism that sought to move beyond the political lines of the post-Reagan era. He explained that we should approach constitutional questions by starting at the beginning: what did the Framers intend for the Constitution to do? Their central goal was not simply to protect liberties like free speech or gun ownership, he argued; their goal was to promote democracy. All court decisions, he said, should take into consideration what conclusion would best promote democracy.

The conviction that the point of the Constitution was to promote democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy.

It is notable that in her decisions, Judge Jackson has argued for this approach, repeatedly focusing on democracy and the rules that preserve it. In her 118–page decision in Committee on the Judiciary v. McGahn (2019) concerning whether Congress could compel members of the executive branch to testify, she famously wrote: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

Her conclusion began: “The United States of America has a government of laws and not of men.”

 

[92tide]

when people show you who they are ...

 

[UAH]

when people show you who they are ...

During that period there was a large billboard on South Memorial Pkwy. in Huntsville Impeach Earl Warren!

 

[UAH]

March 20, 2022 (Sunday)


Tomorrow, the Senate will begin confirmation hearings for Judge Ketanji Brown Jackson, nominated by President Joe Biden on February 25, 2022, to take a seat on the Supreme Court of the United States. Judge Jackson is currently a federal judge on the United States Court of Appeals for the District of Columbia Circuit. This small circuit is prominent and prestigious because its location in Washington, D.C., means that it decides cases concerning the U.S. government. It is often seen as a stepping stone to the Supreme Court. Three current members of the court—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Brett Kavanaugh—served previously asjudges on the D.C. Circuit.

Judge Jackson has a wide range of experience, having both worked in private practice at corporate firms and served as a public defender, during which time she defended detainees at Guantanamo Bay. After earning her degrees from Harvard University and Harvard Law School, where she was a supervising editor on the prestigious Harvard Law Review, she served as a law clerk for three judges, including Justice Stephen Breyer of the Supreme Court, whose seat she has been nominated to fill.

Today, reporters are focusing on how she might decide on cases relating to hot-button issues like abortion and gun rights. But what is at stake with our current Supreme Court is far broader than the question of how a justice will vote on any one issue: it is whether the federal government can protect the rights of citizens from state laws taking away those rights.

This question comes from the 1940s. In the wake of World War II, the gap between America’s stated democratic principles and the abusive treatment of racial minorities and women, especially in the southern states, was so glaring that pressure built to reinforce the idea that our laws should apply to everyone equally. Media-grabbing stories, like that of the sheriff who was acquitted by an all-white jury after putting out the eyes of Black veteran Issac Woodard, looked far more like Nazi Germany than Americans liked.

But the laws necessary to protect Black and Brown Americans, including returning veterans, could not pass Congress because of the resistance of segregationist Democrats. So, under the guidance of Chief Justice Earl Warren, the former Republican governor of California, the Supreme Court began to protect Black Americans from abuse by using the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states.

The Fourteenth Amendment was ratified in 1868 as former Confederates in charge of state legislatures passed laws relegating formerly enslaved Americans to a state of second-class citizenship. The amendment addressed that legal establishment of racial hierarchies by stating, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment gave Congress the power to enforce the amendment “by appropriate legislation.”

In the 1950s, the Supreme Court based civil rights decisions on the Fourteenth Amendment, and it continued that trajectory in the 1960s and 1970s. The 1954 Brown v. Board of Education decision outlawing segregation in public schools, the 1965 Griswold v. Connecticut decision protecting the right of married couples to contraception, the 1967 Loving v. Virginia decision permitting interracial marriage, and the 1973 Roe v. Wade decision protecting a woman’s right to abortion without excessive government regulation all come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

But opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. These opponents began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level.

Those who embraced this literal version of the Constitution called themselves “originalists” or “textualists,” and their intellectual representative was Justice Antonin Scalia, whom President Ronald Reagan appointed to the Supreme Court in 1986. The following year, six Republicans joined Democrats to reject extremist Robert Bork, who had called for the rollback of the Supreme Court’s civil rights decisions.

At the time, Senator Ted Kennedy (D-MA) warned that “Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”

Kennedy’s words then seemed outlandish, but now, thanks to the three Supreme Court appointments by former president Donald Trump, six of the nine members of the court are originalists. They have indicated their willingness to permit state legislatures to act as they wish, overturning constitutional rights like abortion, outlawing “divisive” instruction in our classrooms, and suppressing the vote of minority voters.

Stephen Breyer, under whom Jackson clerked, offered a new intellectual counterpoint to originalism that sought to move beyond the political lines of the post-Reagan era. He explained that we should approach constitutional questions by starting at the beginning: what did the Framers intend for the Constitution to do? Their central goal was not simply to protect liberties like free speech or gun ownership, he argued; their goal was to promote democracy. All court decisions, he said, should take into consideration what conclusion would best promote democracy.

The conviction that the point of the Constitution was to promote democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy.

It is notable that in her decisions, Judge Jackson has argued for this approach, repeatedly focusing on democracy and the rules that preserve it. In her 118–page decision in Committee on the Judiciary v. McGahn (2019) concerning whether Congress could compel members of the executive branch to testify, she famously wrote: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

Her conclusion began: “The United States of America has a government of laws and not of men.”

Not a Constitutional expert by any means but I believe these rulings were made possible through FDR's battle with the Supreme Court and threats to pack the court that enabled the Federal Government to expand the Interstate Commerce Clause. This enabled Congress and the Court to the degree that it became possible to enact The Civil Rights Act, OSHA, The court decision on Miranda rights and other rulings of the Warren Court.

 

[Go Bama]

March 21, 2022 (Monday)


Today is the anniversary of Georgia Senator Alexander Stephens’s Cornerstone Speech, given in 1861 just after he became the provisional vice president of the Confederacy. All these years later, the themes of that speech are still with us.

Stephens spoke in Savannah, Georgia, to explain the difference between the United States and the fledgling Confederacy. That difference, he said, was slavery. The American Constitution was defective because it based the government on the principle that all men were created equal. Confederate leaders had corrected the Founding Fathers’ error by basing the Confederate government on the idea that some people were better than others.

In contrast to the government the Founding Fathers had created, the Confederacy rested on the “great truth” that “the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

Their determination to promote their new philosophy meant that the southern states insisted on states’ rights. The majority of Americans, speaking through the federal government, insisted on reining enslavement in, restricting it to the southern states where it already existed, while southern enslavers wanted to expand their “peculiar institution” to the nation’s newly acquired western lands. In white southerners’ view, federal oversight was tyranny, and true democracy meant that state legislatures should be able to do as their voters wished.

So long as a majority of voters in the southern states voted for human enslavement, democracy had been served. Those same states, of course, limited voting to a few wealthy white men.

The Republican Party had organized in the mid-1850s to stand against this version of American democracy. Those who joined the new party recognized that if enslavers were able to take control of new western states, they would use their votes in Congress and in the Electoral College to take over the federal government and make slavery national.

The government, Illinois lawyer Abraham Lincoln warned, could not “endure, permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided,” he told an audience in June 1858. “It will become all one thing or all the other. Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South.”

For his part, Lincoln insisted on basing the nation on the idea that “all men are created equal,” as the Founders stated—however hypocritically—in the Declaration of Independence. I should like to know,” Lincoln said in July 1858, “if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop…. If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out! Who is so bold as to do it!”

Less than a month after Stephens gave the Cornerstone Speech, the Confederates fired on a federal fort in Charleston Harbor, and the Civil War began. When it ended, almost exactly four years later, southern state legislatures again tried to circumscribe the lives of the Black Americans who lived within their state lines. The 1865 Black Codes said that Black people couldn’t own firearms, for example, or congregate. They had to treat their white neighbors with deference and were required to sign yearlong work contracts every January or be judged vagrants, punishable by arrest and imprisonment. White employers could get them out of jail by paying their fines, but then they would have to work off their debt.

To make the principle that all men are created equal and entitled to equality before the law a reality, Congress passed the Fourteenth Amendment to the Constitution and sent it off to the states for ratification. The states added it to the Constitution in 1868. The Fourteenth Amendment guaranteed that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

That’s quite a sentence. It guarantees that no state can discriminate against any of its citizens. And then the amendment goes on to say that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

This is what is at stake today, both in the Senate hearings on the confirmation of the Honorable Ketanji Brown Jackson, and more generally. Is our democratic system served so long as state legislatures can do what they wish without federal interference? Or should the federal government protect equality among all its citizens?

Ideally, of course, states would write fair laws without federal interference, and to create those circumstances after the Civil War, Congress passed the Military Reconstruction Act, permitting Black men to vote, and then passed and sent off to the states for ratification the Fifteenth Amendment to the Constitution, guaranteeing the right to vote to Black men. When the Fifteenth Amendment was added to the Constitution in 1870, the system had been fixed, most American men believed: the right to vote should protect all interests in the states.

Quickly, though, southern states took away the vote of the Black voters they insisted were trying to redistribute wealth from hardworking white taxpayers into public works projects to benefit the states’ poorer inhabitants. With Black voters cut out of the system, state legislatures enacted harshly discriminatory laws, and law enforcement looked the other way when white people violated the rights of Black and Brown citizens.

After World War II, the Supreme Court used the due process and the equal protection clauses of the Fourteenth Amendment to overrule state laws that favored certain citizens over others, and Congress passed the 1965 Voting Rights Act to give Black and Brown Americans a say in the state governments under which they lived.

Now, the Republicans, at this point to a person, are echoing the pre–Civil War Democrats to say that democracy means that states should be able to do what they wish without interference from the federal government. So, for example, Texas—and now other states—should be able to ban abortion regardless of the fact that abortion is a constitutional right. States should be able to stop public school teachers from covering certain “divisive” topics: Senator Marsha Blackburn (R-TN) asked an apparently nonplussed Judge Jackson, “Is it your personal hidden agenda to incorporate Critical Race Theory into our legal system?” And states should be able to restrict the vote, much as southern states did after the passage of the Fifteenth Amendment and as 19 Republican-dominated states have done since the 2020 election.

Members of the new Republican Party in the 1850s recognized that, in that era, the doctrine of states’ rights meant not only the continued enslavement of Black Americans in the South, but also the spread of enslavement across the nation as southern enslavers moved west to create new states that would overawe the free states in Congress and the Electoral College. The spread of their system was exactly what Stephens called for 161 years ago today.

Now, in 2022, as Republican-dominated states lock down into one-party systems, their electoral votes threaten to give them the presidency in 2024 regardless of what a majority of Americans want. At that point, the Fourteenth Amendment's guarantee of equal protection before the law will be vitally important, if only the Supreme Court will enforce it.

And that’s a key reason why, 161 years to the day after enslaver Alexander Stephens gave the Cornerstone Speech, the confirmation hearing of a Black woman, Judge Ketanji Brown Jackson, to the Supreme Court matters.

 

[Go Bama]

March 22, 2022 (Tuesday)


Right on cue, Republican Senator Mike Braun of Indiana today told a reporter that states not only should decide the issue of abortion but should also be able to decide the issues of whether interracial marriage should be legal and whether couples should have access to contraception. He told a reporter: “Well, you can list a whole host of issues, when it comes down to whatever they are, I’m going to say that they’re not going to all make you happy within a given state, but we’re better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.”

After an extraordinary backlash to his statements, Braun walked back what he had said, claiming he had misunderstood the question. “Earlier during a virtual press conference I misunderstood a line of questioning that ended up being about interracial marriage, let me be clear on that issue—there is no question the Constitution prohibits discrimination of any kind based on race, that is not something that is even up for debate, and I condemn racism in any form, at all levels and by any states, entities, or individuals,” he said.

But he had stated his position quite clearly, and as he originally stated it, that position was intellectually consistent.

After World War II, the Supreme Court used the Fourteenth Amendment to protect civil rights in the states, imposing the government’s interest in protecting equality to overrule discriminatory legislation by the states.

Now, Republicans want to return power to the states, where those who are allowed to vote can impose discriminatory laws on minorities.

Senator Braun is correct: it is not possible to overrule the Supreme Court’s use of the Fourteenth Amendment to protect civil rights on just one issue. If you are going to say that the states should be able to do as they wish without the federal government protecting civil rights on, say, the issue of abortion, you must entertain the principle that the entire body of decisions in which the federal government protects civil rights, beginning with the 1954 Brown v. Board of Education decision ending segregation in the public schools, is illegitimate.

And that is off-the-charts huge.

It is, quite literally, the same argument that gave us the claimed right of states to enslave people within their borders before the Civil War, even as a majority of Americans objected to that system. More recently, it is the argument that made birth control illegal in many states, a restriction that endangered women’s lives and hampered their ability to participate in the workforce as unplanned pregnancies enabled employers to discriminate against them. It is the argument that prohibits abortion and gay marriage; in many states, laws with those restrictions are still on the books and will take effect just as soon as the Supreme Court decisions of Roe v. Wade and Obergefell v. Hodges are overturned.

Braun’s willingness to abandon the right of Americans to marry across racial lines was pointed, since Judge Ketanji Brown Jackson, whose confirmation hearing for her elevation to the Supreme Court is currently underway in the Senate, is Black and her husband is non-Black. The world Braun described would permit states to declare their 26-year marriage illegal, as it would have been in many states before the 1967 Loving v. Virginia decision declared that states could not prohibit interracial marriages. This would also be a problem for sitting justice Clarence Thomas and his wife, Ginni.

But it is not just Braun talking about rolling back civil rights. This week, Senator Marsha Blackburn (R-TN) has challenged the Griswold v. Connecticut decision legalizing contraception, and Senator John Cornyn (R-TX) has questioned Obergefell.

Seventy percent of Americans support same-sex marriage. In 2012—the most recent poll I can find—89% of Americans thought birth control was morally acceptable, and the Centers for Disease Control and Prevention reported that as of 2008, 99% of sexually active American women use birth control in their lifetimes. And even the right to abortion, that issue that has burned in American politics since 1972 when President Richard Nixon began to use it to attract Democratic Catholics to the Republican ticket, remains popular. According to a 2021 Pew poll, 59% of Americans believe it should be legal in most or all cases.

A full decade ago, in April 2012, respected scholars Thomas Mann, of the Brookings Institution, and Norm Ornstein, of the American Enterprise Institute, crunched the numbers and concluded: “The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream,” they wrote, “it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

And yet, in the last decade, the party has moved even further to the right. Now it is not only calling for an end to the civil rights protections that undergird modern America, but also lining up behind a leader who tried to overthrow our democracy. A column by Jennifer Rubin in the Washington Post yesterday was titled: “Fringe Republicans are not the problem. It’s the party’s mainstream.”

Rubin points out that Republicans refused to investigate the January 6 attack on the Capitol, refused to reauthorize the Voting Rights Act (which as recently as 2006 enjoyed overwhelming bipartisan support), and refused to impeach Trump for an attempt to overthrow our democracy. The party brought us to the brink of defaulting on the debt, and it tolerates white nationalists in its ranks.

At the state level, prominent Republicans spread covid disinformation, suppress voting, and harass LGBTQ young people. To end abortion, certain Republican-dominated states are offering bounties to anyone reporting women seeking abortions beyond six weeks in a pregnancy. Worse, Rubin notes, “a law in Idaho would force rape victims to endure nine months of pregnancy—while allowing their rapists to collect a bounty for turning them in if they seek an abortion.”

The confirmation hearings this week for the elevation of Judge Ketanji Brown Jackson to the Supreme Court have illustrated that Republican lawmakers are far more interested in creating sound bites for right-wing media and reelection campaigns than in governing. Led by Missouri Senator Josh Hawley and Texas Senator Ted Cruz, Republicans have tried to label Judge Jackson as soft on child pornographers, a smear that has been thoroughly discredited by, among others, the conservative National Review, which called it “meritless to the point of demagoguery.” Their attacks, though, will play well to their base on social media.

Similarly, Cruz made a big play of accusing Jackson of pushing Critical Race Theory in a private school on whose board she sits. “Do you agree…that babies are racist?” he asked, sitting in front of a poster with blown-up images from a book by African American studies scholar Ibram X. Kendi that the school has in its library.

On Twitter, the Republican National Committee cut right to the chase, showing a picture of Judge Jackson under her initials, which were crossed out and replaced with “CRT.”

 

[NationalTitles18]

Very much deserved!

Heather Cox Richardson writes ‘Letters from an American’ to empower, entertain: Women of the Year

Cox Richardson writes the wildly popular Substack daily newsletter “Letters from an American,” where she connects current events to the past.

www.usatoday.com

 

[Go Bama]

March 22, 2022 (Wednesday)


“O, let America be America again—

The land that never has been yet—

And yet must be—the land where every man is free.”

Langston Hughes wrote these words in a poem published in 1936. He wrote as the Dust Bowl baked in the heat, Louisiana senator Huey Long died by gunfire, the Supreme Court invalidated much of President Franklin Delano Roosevelt’s New Deal, a serial killer terrorized Cleveland, workers finished Hoover Dam, the Depression dragged on, and Black and Brown Americans fell even farther behind their white neighbors.

Today, at the Senate confirmation hearing for Judge Ketanji Brown Jackson to the Supreme Court, Senator Cory Booker (D-NJ) recited some of Hughes’s poem, and the choppy era in which we are living made Hughes’s words apt.

Russia’s war on Ukraine is four weeks old. The State Department announced today that “the U.S. government assesses that members of Russia’s forces have committed war crimes in Ukraine” and that the government is committed to bringing the perpetrators to account. President Joe Biden today flew to Brussels, where he will meet tomorrow with leaders of the 29 other NATO nations to discuss the conflict. Biden is expected to unveil a plan to replace the Russian oil and gas cut off by sanctions with supplies from the U.S., helping Europe to avoid a crisis even as the U.S. imposes still harsher sanctions on Russia. The meeting is also expected to discuss contingency plans in case Russian president Vladimir Putin deploys chemical, biological, or nuclear weapons.

At home, former president Trump is in the news.

The New York Times today published the resignation letter of former prosecutor Mark Pomerantz, who quit his job after the new Manhattan district attorney, Alvin Bragg, stopped the process of seeking an indictment against the former president. In his letter, Pomerantz wrote, “I believe that Donald Trump is guilty of numerous felony violations of the Penal Law in connection with the preparation and use of his annual Statements of Financial Condition. His financial statements were false, and he has a long history of fabricating information relating to his personal finances and lying about his assets to banks, the national media, counterparties, and many others, including the American people. The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes—he did.”

Pomerantz suggested that Bragg stopped the forward motion of the case out of concern about “the legal and factual sufficiency of our case and the likelihood that a prosecution would succeed.” Pomerantz countered that “a failure to prosecute will pose much greater risks in terms of public confidence in the fair administration of justice.”

Trump’s chief of staff, Mark Meadows, has been under investigation in North Carolina for claiming a false residence for purposes of voting, a deception that might constitute voter fraud. News broke today that his wife, Debra Meadows, filled out two official forms claiming the couple lives in a trailer in rural North Carolina, although they actually live in a condo in Old Town Alexandria in Virginia. One of the forms she signed reads: “Fraudulently or falsely completing this form” is a Class I felony.

Paul Manafort, Trump’s 2016 campaign manager and a convicted felon, was taken off a plane in Miami because his passport had been revoked. The plane was headed for Dubai.

Today, Trump withdrew his endorsement of Alabama Representative Mo Brooks, such a staunch supporter he spoke at the January 6 rally at the Ellipse, for suggesting that the party needs to move on past the rehashing of the 2020 election. Brooks has been trailing in the polls.

After Trump’s announcement, Brooks said that Trump had “asked me to rescind the 2020 elections, immediately remove Joe Biden from the White House, immediately put President Trump back in the White House, and hold a new special election for the presidency,” all of which would have been an illegal attempt to overturn the legitimate results of the election. Brooks said Trump was pushing this plan as late as September 2021.

Today, at the third day of the Senate confirmation hearing for Judge Ketanji Brown Jackson to the Supreme Court, Trump Republicans turned in a performance for right-wing media, expressing outrage over their manufactured concern that certain of Judge Jackson’s sentences for child pornography were too short and that she is a secret warrior for Critical Race Theory in the schools.

This is such a transparent reach for base votes that will score an interview on right-wing media that immediately after Senator Ted Cruz (R-TX) spoke about Critical Race Theory, Senator Ben Sasse (R-NE) said "I think we should recognize that the jackassery we often see around here is partly because of people mugging for short-term camera opportunities." Sasse’s point was borne out when a camera then apparently caught Cruz checking Twitter for his own name.

Certain Republican senators badgered and bullied Jackson, who could not fight back without endangering her chances of confirmation. It was an abusive dynamic that spoke ill of the process and of the senators themselves: the abusive Republicans, but also the many Democrats who, as legal analyst Dahlia Lithwick pointed out, did little to remind viewers that the Republicans have stacked the court with extremists who are poised to take away our fundamental rights, and instead just let the Republicans beat up on Jackson.

Tonight Senator Marsha Blackburn (R-TN) illustrated the profound difference between Jackson, who demonstrated a profound understanding of our founding documents and our legal system, and those browbeating her when she tweeted: “The Constitution grants us rights to life, liberty, and the pursuit of happiness—not abortions.”

It is, of course, not the U.S. Constitution but the Declaration of Independence that declares: “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It goes on to say “[t]hat to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”

Senator Booker, though, pushed back against the Republicans as Jackson could not. In an impassioned speech, quoting Langston Hughes’s vow that “America never was America to me, And yet I swear this oath—America will be!” Booker said “There is a love in this country that is extraordinary.”

He spoke of Jackson’s parents and how they “didn’t stop loving this country even though this country didn’t love them back.” Jackson has talked of how the life of civil rights attorney Constance Baker Motley inspired her; Booker said: “Did she become bitter” when no one would hire her after law school? “Did she try to create a revolution? No, she used the very Constitution of this nation. She loved it so much she wanted America to be America….”

“That is the story of how you got to this desk,” he told Jackson. “You and I and everyone here: generations of folk who came here and said, ‘America, I’m Irish. You may say no Irish or dogs need apply, but I’m going to show this country that I can be free here. I can make this country love me as much as I love it.’ Chinese Americans forced into mere slave labor building our railroads connecting our country saw the ugliest of America, but they were going to build their home here and say, ‘America, you may not love me yet, but I’m going to make this nation live up to its promise and hope.’ LGBTQ Americans from Stonewall women to Seneca…. All of these people loved America.”

“And so you faced insults here that were shocking to me—well, actually not shocking. But you are here because of that kind of love.”

Finally, today brought the passing of Madeleine K. Albright, whose parents were Czech refugees from the Nazis and the Communists, at 84. Albright served the United States as a diplomat and then as Secretary of State under President Bill Clinton, the first woman to serve in that role. Her most recent op-ed, published by the New York Times just a month ago, illustrated just how deeply she still engaged with the nation’s interests. She warned that invading Ukraine “would ensure Mr. Putin’s infamy by leaving his country diplomatically isolated, economically crippled and strategically vulnerable in the face of a stronger, more united Western alliance.”

Her extraordinary career was a fitting backdrop today to Booker’s illumination of Judge Jackson. “The act of striving,” Albright once said, “is in itself the only way to keep faith with life.”

 

[Go Bama]

My apologies for forgetting the post yesterday.

March 24, 2022 (Thursday)


“We are very pleased, dear President, dear Joe, to welcome you again in Brussels,” European Council president Charles Michel of Belgium told President Joe Biden today. “Your presence here and your participation in this European Council meeting is a very strong signal.”

The European Council is made up of the heads of states of the European Union states, along with the President of the European Commission, the executive branch of the European Union. “Our unity is rock solid, and we are very, very pleased to coordinate, to cooperate with you. These are difficult times, challenging times, and we need to take the right and the intelligent decisions for the future and for the security, for the stability,” Michel said.

“And thank you for this excellent cooperation and coordination,” he concluded.

Michel was referring to the joint statement made today by Biden and European Commission President Ursula von der Leyen, of Germany, condemning Russia’s “unjustified and unprovoked war of aggression against Ukraine,” which is now four weeks old. They declared that “we are united in our resolve to defend our shared values, including democracy, respect for human rights, global peace and stability, and the rules-based international order.”

They announced more sanctions—the U.S. announced sanctions on more than 400 additional individuals and entities today—as well as $1 billion in humanitarian aid from the U.S. for Ukraine in addition to the more than $2 billion in military equipment the U.S. has pledged. They announced cooperation to reduce dependence on Russian oil and gas, a focus on food security to prevent food shortages as Russian and Ukrainian grain production slows, and additional cybersecurity. To help resettlement, the U.S. has agreed to take up to 100,000 Ukrainians fleeing their homes.

They also announced joint efforts to strengthen democracies in and around Ukraine. The U.S. will launch the European Democratic Resilience Initiative (EDRI) to provide at least $320 million in new funding to “support media freedom and counter disinformation, benefit the safety and security of activists and vulnerable groups, strengthen institutions and the region’s rule of law, and help ensure accountability for human rights abuses and violations of international law.” The European Commission will “reallocate funds from EU programmes to support civil society organizations, human rights defenders, journalists, and pro-democracy activists in Ukraine, Belarus and Moldova,” in addition to providing emergency grants to save civic activism and open media in Ukraine. The statement also demanded accountability for any war crimes Russians commit in Ukraine.

Biden responded to Michel by reiterating that “from the very beginning, I was of the view: The single most important thing that we have to do in the West is be united.” Russian president Vladimir Putin’s overwhelming objective, Biden said, “is to demonstrate that democracies cannot function in the 21st century—because things are moving so rapidly, they require consensus, and it’s too difficult to get consensus—and autocracies are going to rule.” Putin has tried for years to break up the North Atlantic Treaty Organization (NATO), so he could face 30 individual countries rather than one united front. The single most important thing we can do is to be united.

That impressive unity abroad has not translated to the United States.

Fox News Channel personality Tucker Carlson continues to promote pro-Russian, anti-Biden propaganda. Today the Russian Ministry of Defense claimed that Biden’s son Hunter’s foundation had financed biological labs in Ukraine (which earlier propaganda said were developing biological weapons); less than 12 hours later, Carlson made the same claim.

More explosively, tonight Bob Woodward of the Washington Post and Robert Costa of CBS broke the story that Supreme Court Justice Clarence Thomas’s wife, Virginia, a right-wing activist who goes by the name Ginni, exchanged at least 29 texts with Trump’s chief of staff Mark Meadows about the attempt to overturn the 2020 election, 21 from her, 8 from Meadows.

The messages were among the 2320 messages Meadows provided to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol; the aides and committee members to whom Woodward and Costa spoke indicated their belief that there were more messages between Ms. Thomas and Meadows than just the 29.

The messages show that Ms. Thomas bought into the conspiracy theories that the election was stolen, including the extreme theories pushed by QAnon. “Help This Great President stand firm, Mark!!!” she urged Meadows on November 10, after the results were in. “The majority knows Biden and the Left is attempting the greatest Heist of our History.” (Biden won the election by more than 7 million votes, and by a vote of 306 to 232 in the Electoral College.) On November 24, Meadows wrote, “This is a fight of good versus evil…. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues….”

In January 2022, Ms. Thomas’s husband, Justice Thomas, was the only member of the Supreme Court to vote against permitting the January 6 committee to see a different cache of documents concerning the fight to overturn the election. Trump had claimed executive privilege over documents stored as part of the presidential records archive at the National Archives and Records Administration (NARA); by a vote of 8 to 1, the Supreme Court agreed that the committee’s subpoena must be enforced.

Considering that his wife might have communications in that NARA cache, it was likely a conflict of interest for him to participate in that decision.

Neither Thomas responded to requests for comment. The Supreme Court announced Sunday that Justice Thomas, 73, had been hospitalized with an infection that is not Covid-19 and that he was expected to be released Monday or Tuesday. Thomas was not in court Wednesday, and the court has provided no further updates.

That Thomas is now at the center of this scandal suggests another dimension to the extraordinarily vicious attacks on Judge Ketanji Brown Jackson at this week’s Senate hearing for confirmation to the Supreme Court.

The former president himself is also trying to keep his name in the news and his base angry. Today his lawyers filed a federal lawsuit against Hillary Clinton, the Democratic National Committee, Christopher Steele (who produced the Steele Dossier suggesting that Trump had concerning ties with Russia), and so on—a laundry list of 47 people and companies he claims were part of a conspiracy against him after the 2016 election—claiming that “Clinton and her cohorts orchestrated an unthinkable plot…. Acting in concert, the[y]... maliciously conspired to weave a false narrative that their Republican opponent, Donald J. Trump, was colluding with a hostile foreign sovereignty.” Their actions were “so outrageous, subversive and incendiary that even the events of Watergate pale in comparison.”

It is a mess, full of debunked claims, misspellings, and outright lies; Aaron Blake of the Washington Post called it a press release. It is impossible to imagine Trump intends to continue the case until it gets to discovery, when the defendants’ lawyers could request his testimony under oath. The complaint asks for a trial, and it appears to be designed to rile up his base with familiar stories—possibly for 2024, as Blake suggests, but, if history is any guide, primarily to encourage donations.

 

[Go Bama]

March 25, 2022 (Friday)


In confirmation hearings this week for her elevation to a Supreme Court seat, the highly qualified and well-respected Judge Ketanji Brown Jackson endured vicious attacks from Republicans on the Senate Judiciary Committee, who vow to reject her confirmation despite the fact that her record is stronger than those of recent Republican nominees and that 58% of Americans want her to be confirmed. (In contrast, only 42% of Americans wanted Justice Amy Coney Barrett confirmed.)

Senator Ben Sasse (R-NE) explained: “Judge Jackson has impeccable credentials and a deep knowledge of the law,” but she “refused to embrace” the judicial philosophy of originalism, which would unravel the 1973 Roe v. Wade decision protecting abortion rights, as well as most of the other civil rights protected since the 1950s.

Indeed, the hearings inspired Republicans to challenge many of the civil rights decisions that most Americans believe are settled law, that is, something so deeply woven into our legal system that it is no longer reasonably open to argument. The rights Republicans challenged this week included the right to use birth control, access abortion, marry across racial lines, and marry a same-sex partner.

These rights, which previous Supreme Courts said are guaranteed by our Constitution, are enormously popular. Seventy percent of Americans support same-sex marriage. Eighty-nine percent of Americans in 2012 thought birth control was morally acceptable, and the Centers for Disease Control and Prevention reported that as of 2008, 99% of sexually active American women use birth control in their lifetimes. Even the right to abortion remains popular. According to a 2021 Pew poll, 59% of Americans believe it should be legal in most or all cases.

So how do today’s Republicans square overturning these established rights with the fact that we live in a democracy, in which the majority should rule, so long as it does not crush a minority?

A 2019 speech by then–attorney general William Barr at the University of Notre Dame offers an explanation.

In that speech, Barr presented a profound rewriting of the meaning of American democracy. He argued that by “self-government,” the Framers did not mean the ability of people to vote for representatives of their choice. Rather, he said, they meant individual morality: the ability to govern oneself. And, since people are inherently wicked, that self-government requires the authority of a religion: Christianity.

Barr quoted the leading author of the Constitution, James Madison, to prove his argument. “In the words of Madison,” he said, “‘We have staked our future on the ability of each of us to govern ourselves…’.”

This has been a popular quotation on the political and religious right since the 1950s, and Barr used it to lament how the modern, secular world has removed moral restraints, making Americans unable to tell right from wrong and, in turn, creating “immense suffering, wreckage, and misery.” “Secularists, and their allies among the ‘progressives,’” he said, “have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values.” The law, Barr said, “is being used as a battering ram to break down traditional moral values” through judicial interpretation, and he called for saving America by centering religion.

Madison never actually said the quotation on which Barr based his argument. It’s a fake version of what Madison did say in Federalist #39, in 1788, which was something entirely different. In Federalist #39, Madison explained how the new government, the one under which we still live, worked.

Answering the question of whether the new government the Framers had just proposed would enable people to vote for their representatives, he said yes. “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.” Madison said nothing about personal morality when he talked about self-government, though. Instead, he focused on the mechanics of the new national government, explaining that such a government “derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.”

He went on to say (and the capitalization is his, not mine): “It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an [small] proportion [of people], or a favored class of it….”

In his 2019 speech, Barr also expressed concern that people in the United States misunderstood the First Amendment to the Constitution, which expressly forbids the government from establishing a national religion or stopping anyone from worshiping a deity—or not—however they choose. In Barr’s hands, the First Amendment “reflects the Framers’ belief that religion was indispensable to sustaining our free system of government.” To support that argument, he cites a few lines from Madison’s 1785 pamphlet objecting to religious assessments that talk about how Madison defined religion.

In reality, that pamphlet was Madison’s passionate stand against any sort of religious establishment by the government. He explained that what was at stake was not just religion, but also representative government itself. The establishment of religion attacked a fundamental human right—an unalienable right—of conscience. If lawmakers could destroy the right of freedom of conscience, they could destroy all other unalienable rights. Madison warned specifically that they could control the press, abolish trial by jury, take over the executive and judicial powers, take away the right to vote, and set themselves up in power forever.

Madison was on to something when he warned that there was a connection between establishing a religion and destroying American democracy. At the same time Republican lawmakers are now talking about rolling back popular civil rights in order to serve Christianity, they are also taking away the right to vote and appear to be looking to set a minority into power over the majority.

“This is a fight of good versus evil,” Trump’s chief of staff Mark Meadows wrote to Supreme Court Justice Clarence Thomas’s wife, Ginni, on November 24, 2020, in a text about overthrowing the will of the voters after Joe Biden had won the presidential election by more than 7 million votes and by 306 to 232 votes in the Electoral College. Referring to Jesus Christ, Meadows continued: “Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues….”

 

[92tide]

March 25, 2022 (Friday)



Madison never actually said the quotation on which Barr based his argument. It’s a fake version of what Madison did say in Federalist #39, in 1788, which was something entirely different. In Federalist #39, Madison explained how the new government, the one under which we still live, worked.
religious assessments that talk about how Madison defined religion.
....
In reality, that pamphlet was Madison’s passionate stand against any sort of religious establishment by the government. He explained that what was at stake was not just religion, but also representative government itself. The establishment of religion attacked a fundamental human right—an unalienable right—of conscience. If lawmakers could destroy the right of freedom of conscience, they could destroy all other unalienable rights. Madison warned specifically that they could control the press, abolish trial by jury, take over the executive and judicial powers, take away the right to vote, and set themselves up in power forever.

and yet they continually get the benefit of a broad based assumption that they are acting in good faith.

 

[Go Bama]

March 26, 2022 (Saturday)


Today, President Joe Biden ended four days in Europe with a landmark speech. After meeting with world leaders in Brussels, he traveled to Poland, where he visited American troops stationed there, met with humanitarian workers and refugees, talked with Polish president Andrzej Duda, and, finally, addressed an assembled crowd.

Biden spoke at the historic Royal Castle in the Polish capital of Warsaw, a building that was destroyed by the Nazis after the failed Warsaw Uprising of 1944, when the Polish resistance tried to throw off German occupation. The Polish government rebuilt the castle in the 1970s and 1980s, and it is now a United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Site, considered to be of “outstanding value to humanity.”

There, Biden began with the words of the first Polish Pope, John Paul II, after his election in October 1978: “Be not afraid.” Biden explained that those words were “a message about the power—the power of faith, the power of resilience, and the power of the people.”

Biden briefly retraced Poland’s struggle and ultimate victory against Soviet repression and tied that story to the history of the United States by nodding to former secretary of state Madeleine Albright, who passed away this week, and who had, he said, “fought her whole life for essential democratic principles.”

With this backdrop, Biden warned that we are again “in the great battle for freedom: a battle between democracy and autocracy, between liberty and repression, between a rules-based order and one governed by brute force.” Ukraine is at the frontlines of that battle.

“[T]heir brave resistance is part of a larger fight for essential democratic principles that unite all free people: the rule of law; free and fair elections; the freedom to speak, to write, and to assemble; the freedom to worship as one chooses; freedom of the press.”

“These principles are essential in a free society,” he said to applause. “But they have always…been under siege.” He noted that “[o]ver the last 30 years, the forces of autocracy have revived all across the globe,” showing “contempt for the rule of law, contempt for democratic freedom, contempt for the truth itself.” He called for democratic countries to work to stop autocracy.

Biden reiterated that Russia’s war on Ukraine is a war of choice that had “no justification or provocation. It was, he said, an example of using “brute force and disinformation to satisfy a craving for absolute power and control.” That is, he said, “nothing less than a direct challenge to the rule-based international order established since the end of World War Two,” and it threatens to throw Europe back into the old world of wars that the international rule-based order ended.

Biden outlined how the West has come together to try to stop Putin’s aggression. It has sanctioned oligarchs, lawmakers, and businesses to hurt the Russian economy. It has blocked Russia’s Central Bank from the global financial systems, even as more than 400 private companies have stopped doing business in Russia.

These economic sanctions, he said, “are a new kind of economic statecraft with the power to inflict damage that rivals military might,” and they are weakening Russia’s power to make war and to “project power.”

At the same time, the West has supported Ukraine “with incredible levels of military, economic, and humanitarian assistance,” that the Ukrainian people have used “to devastating effect.”

Biden reiterated that U.S. troops are in Europe not to fight Russia, but to defend our North Atlantic Treaty Organization (NATO) allies. “Don’t even think about moving on one single inch of NATO territory,” he warned. NATO nations will defend “each and every inch of NATO territory with the full force of our collective power.”

He called on all the world’s democracies to help the Ukrainian refugees, and pledged that the U.S. would do its part.

The war has already been a strategic failure for Russia, he said. “The democracies of the world are revitalized with purpose and unity found in months that we’d once taken years to accomplish.” And people are fleeing Russia as President Vladimir Putin cracks down on protesters and shuts down the media.

Biden reassured the Russian people that they are not our enemies, noting that they, too, have reason to hate the war. Just days ago they were “a 21st century nation with hopes and dreams that people all over the world have for themselves and their family,” and now “Vladimir Putin’s aggression has cut you, the Russian people, off from the rest of the world, and it’s taking Russia back to the 19th century.” “This war is not worthy of you, the Russian people,” he said, and reminded them that “Putin can and must end this war.”

Turning to Europe, Biden said that turning to clean and renewable energy is a matter of economic and national security, as well as vital for the planet. He urged democracies to fight the corruption that has fueled Putin’s power. And finally, he said that the world’s democracies must maintain “absolute unity.”

“It’s not enough to speak with rhetorical flourish, of ennobling words of democracy, of freedom, equality, and liberty,” he said. “All of us…must do the hard work of democracy each and every day. My country as well.” His message “for all freedom-loving nations,” he said, is that “we must commit now to be in this fight for the long haul.” In the end, though, “the darkness that drives autocracy is ultimately no match for the flame of liberty that lights the souls of free people everywhere.” “We will have a different future—a brighter future rooted in democracy and principle, hope and light, of decency and dignity, of freedom and possibilities.”

“For God’s sake,” he said, “this man cannot remain in power.”

That last line seemed a logical conclusion to the argument Biden has been making about the struggle between democracy and autocracy, rallying democratic countries to stay unified against Putin as his troops smash Ukraine. But it prompted a flurry of media stories saying Biden had made a gaffe, changing his long-standing insistence that the U.S. is not engaging in regime change but rather is trying to defend Ukraine’s right to exist independently of Russia. A White House official clarified that “[t]he president’s point was that Putin cannot be allowed to exercise power over his neighbors or the region…. He was not discussing Putin’s power in Russia, or regime change.” Michael D. Shear and David E. Sanger of the New York Times noted that, however Biden meant the line, it underscored the difficulty of holding allies together against Putin while also avoiding an escalation of the war.

After the speech, the White House dropped on social media a cut of its section addressed to the Russian people… with Russian subtitles.

 

[Go Bama]

March 27, 2022 (Sunday)


People write to me to ask why I have hope in our future despite all the trouble in the world, and the answer is always: I have faith because of you.

The biggest miracle about these Letters from an American is the community that has gathered around them. It is made up of decent, principled, smart, creative, and thoughtful people from all around the world, and it is a never ending source of wonder to me that I have the extraordinary opportunity to meet many of you and to eavesdrop on your conversations as you work together to move our country, and our world, forward.

I’m going to go to sleep tonight instead of writing, so am sharing this image from my friend Peter for my friend Nadia, from Maine to Ukraine, because we are all in this together.

I’ll see you tomorrow.

[Photo, “Beyond,” by Peter Ralston]

 

[dtgreg]

March 20, 2022 (Sunday)


Tomorrow, the Senate will begin confirmation hearings for Judge Ketanji Brown Jackson, nominated by President Joe Biden on February 25, 2022, to take a seat on the Supreme Court of the United States. Judge Jackson is currently a federal judge on the United States Court of Appeals for the District of Columbia Circuit. This small circuit is prominent and prestigious because its location in Washington, D.C., means that it decides cases concerning the U.S. government. It is often seen as a stepping stone to the Supreme Court. Three current members of the court—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Brett Kavanaugh—served previously asjudges on the D.C. Circuit.

Judge Jackson has a wide range of experience, having both worked in private practice at corporate firms and served as a public defender, during which time she defended detainees at Guantanamo Bay. After earning her degrees from Harvard University and Harvard Law School, where she was a supervising editor on the prestigious Harvard Law Review, she served as a law clerk for three judges, including Justice Stephen Breyer of the Supreme Court, whose seat she has been nominated to fill.

Today, reporters are focusing on how she might decide on cases relating to hot-button issues like abortion and gun rights. But what is at stake with our current Supreme Court is far broader than the question of how a justice will vote on any one issue: it is whether the federal government can protect the rights of citizens from state laws taking away those rights.

This question comes from the 1940s. In the wake of World War II, the gap between America’s stated democratic principles and the abusive treatment of racial minorities and women, especially in the southern states, was so glaring that pressure built to reinforce the idea that our laws should apply to everyone equally. Media-grabbing stories, like that of the sheriff who was acquitted by an all-white jury after putting out the eyes of Black veteran Issac Woodard, looked far more like Nazi Germany than Americans liked.

But the laws necessary to protect Black and Brown Americans, including returning veterans, could not pass Congress because of the resistance of segregationist Democrats. So, under the guidance of Chief Justice Earl Warren, the former Republican governor of California, the Supreme Court began to protect Black Americans from abuse by using the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states.

The Fourteenth Amendment was ratified in 1868 as former Confederates in charge of state legislatures passed laws relegating formerly enslaved Americans to a state of second-class citizenship. The amendment addressed that legal establishment of racial hierarchies by stating, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment gave Congress the power to enforce the amendment “by appropriate legislation.”

In the 1950s, the Supreme Court based civil rights decisions on the Fourteenth Amendment, and it continued that trajectory in the 1960s and 1970s. The 1954 Brown v. Board of Education decision outlawing segregation in public schools, the 1965 Griswold v. Connecticut decision protecting the right of married couples to contraception, the 1967 Loving v. Virginia decision permitting interracial marriage, and the 1973 Roe v. Wade decision protecting a woman’s right to abortion without excessive government regulation all come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

But opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. These opponents began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level.

Those who embraced this literal version of the Constitution called themselves “originalists” or “textualists,” and their intellectual representative was Justice Antonin Scalia, whom President Ronald Reagan appointed to the Supreme Court in 1986. The following year, six Republicans joined Democrats to reject extremist Robert Bork, who had called for the rollback of the Supreme Court’s civil rights decisions.

At the time, Senator Ted Kennedy (D-MA) warned that “Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”

Kennedy’s words then seemed outlandish, but now, thanks to the three Supreme Court appointments by former president Donald Trump, six of the nine members of the court are originalists. They have indicated their willingness to permit state legislatures to act as they wish, overturning constitutional rights like abortion, outlawing “divisive” instruction in our classrooms, and suppressing the vote of minority voters.

Stephen Breyer, under whom Jackson clerked, offered a new intellectual counterpoint to originalism that sought to move beyond the political lines of the post-Reagan era. He explained that we should approach constitutional questions by starting at the beginning: what did the Framers intend for the Constitution to do? Their central goal was not simply to protect liberties like free speech or gun ownership, he argued; their goal was to promote democracy. All court decisions, he said, should take into consideration what conclusion would best promote democracy.

The conviction that the point of the Constitution was to promote democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy.

It is notable that in her decisions, Judge Jackson has argued for this approach, repeatedly focusing on democracy and the rules that preserve it. In her 118–page decision in Committee on the Judiciary v. McGahn (2019) concerning whether Congress could compel members of the executive branch to testify, she famously wrote: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

Her conclusion began: “The United States of America has a government of laws and not of men.”

This is much-needed commentary. The insanity and lawlessness of these gerrymandered times is breathtaking. Crazy works SO much harder than sanity to achieve its "goals".

I would like to highlight the twitter commentary of
@DrJadeMcGlynn

Her remarks make it so much easier to understand the backward ideas of the damned among us. The fallacy of sunk costs is so real, as is the desire to pay any price rather than admit you have been fooled.

 

[Go Bama]

March 28, (Monday)


Today, United States District Judge David O. Carter of the United States District Court for the Central District of California ordered John Eastman to disclose 101 documents to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Eastman is a former law school dean at Chapman University and author of the Eastman memo outlining a plan for Vice President Mike Pence to throw the 2020 election to Donald Trump. He also spoke at Trump’s January 6 rally on the Ellipse, lying to the crowd: “We know there was fraud…. We know that dead people voted.” Now he will have to share his communications about the events of January 6 with the January 6th Committee.

The backstory to this lawsuit is that on November 8, 2021, the January 6 Committee subpoenaed Eastman’s testimony and disclosure of documents and emails sent or received by Eastman between November 3, 2020, and January 20, 2021, related to the Capitol attack. Eastman testified before the committee on December 3, 2021, but asserted his Fifth Amendment right against self-incrimination 146 times. He also refused to produce any documents, again asserting his Fifth Amendment rights.

So on January 18, 2022, the January 6 Committee subpoenaed Eastman’s emails from Chapman University—it had parted ways with Eastman by then—which initially collected 30,000 documents off its servers. The January 6 Committee then worked with Chapman to winnow down those results, ending up with just under 19,000 documents.

Eastman then tried to stop that document production. The court refused to agree. When Eastman appeared to be delaying disclosure, the court ordered him to focus on emails from January 4–7. On February 22, 2022, Eastman sued Representative Bennie G. Thompson (D-MS), chair of the January 6 Committee, and Chapman University to prevent disclosure of certain emails, claiming that 111 of them from January 4–7 should not be disclosed because they are covered by attorney-client privilege, with the “client” being Trump. The committee disagreed.

So Judge Carter personally examined the contested documents to decide if they should be disclosed or kept private. He concluded that 10 were indeed covered by attorney-client privilege because they did not involve Trump or involved litigation that was not covered by the subpoena. The other 101 must be disclosed.

That disclosure is important. But far more important is what is in Carter’s decision. It lays out, point by point, what depositions have now told us about the actions of former president Trump in the days before January 6, and explains what those actions mean.

Judge Carter explains how Trump and Eastman fostered the public belief that the 2020 presidential election was tainted by fraud, despite the lack of evidence for that claim. They urged state legislators to question the results of the election. On January 2, 2021, Trump and Eastman hosted a briefing urging several hundred state legislators from states Biden won to “decertify” the electors.

The same day, January 2, 2021, Trump called Georgia secretary of state Brad Raffensperger to get him to throw the election to Trump. Raffensperger refuted all of Trump’s arguments, “point by point,” and told him “the data you have is wrong.” Trump insisted he just wanted to find 11,780 votes, one more than Biden received to win the state.

The next day, January 3, Trump tried to remove the acting attorney general, Jeffrey A. Rosen, who had replaced Attorney General William Barr when he resigned on December 23, 2020, and replace him with Jeffrey Clark, who planned to write a letter to certain states Biden won, telling them that the election might have been stolen and urging them to decertify the electors. Richard Donoghue, the acting deputy attorney general at the time, told the January 6 Committee that the White House counsel, Pat Cipollone, described Clark’s proposed letter as a “murder-suicide pact” that would “damage everyone who touches it” and said “we should have nothing to do with that letter.” When high-ranking officials in the Department of Justice warned they would resign together if Trump appointed Clark, he did not do so.

Judge Carter outlined how in the months after the election, sources from members of Trump’s inner circle to statisticians told Trump and Eastman that there was no evidence of election fraud. Christopher Krebs of the Cybersecurity and Infrastructure Security Agency said that “[t]he November 3rd election [was] the most secure in American history,” and that it found “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” An internal memo from the Trump campaign said the fraud claims about Dominion voting machines were baseless. In early December, Barr said publicly there was no evidence of fraud, and on December 27, Donoghue told Trump that after “dozens of investigations, hundreds of interviews,” the Justice Department had concluded that there was no evidence of voter fraud that had changed the election results.

Still, Trump insisted that the Department of Justice should say that the election was fraudulent.

By early January, courts had rejected more than 60 cases relating to accusations of fraud, owing to lack of evidence or lack of standing.

By late December, Eastman wrote a memo proposing to reinstate Trump by getting Pence to reject the certified electoral votes from states Trump claimed to have won. If Pence rejected the votes from those states, Trump would win. Alternatively, Pence could send the election to the House of Representatives, where each state would get a single vote and Republicans had a majority of the states, and elect Trump that way. Eastman wrote: “[t]he main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court.”

Eastman expanded on this a few days later, saying that the plan was “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

On January 4, Trump and Eastman pressed Pence, Pence’s lawyer Greg Jacob, and Pence’s chief of staff Marc Short to reject the electors or delay the count. Pence insisted he did not have the authority to do either of those things.

The next day, Eastman again pressed Jacob and Short to follow his plan. Jacob has testified that Eastman admitted his plan was “contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court, and violated the Electoral Count Act on four separate grounds.” Nonetheless, Eastman and Trump continued to pressure Pence to follow it.

At 1:00 am on January 6, Trump tweeted, “If Vice President [Pence] comes through for us, we will win the Presidency…. Mike can send it back!” At 8:17 am, he tweeted, “States want to correct their votes…. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!” Then Trump called Pence twice, reaching him on the second attempt and berating him for “not [being] tough enough to make the call” to reject or delay the electoral votes.

Continued in next post.

 

[Go Bama]

March 28, 2022 (Monday)

Continued from previous post.

At the January 6 rally on the Ellipse, Eastman and Trump spoke to explain the plan to the attendees and those watching at home. Trump’s lawyer Rudy Giuliani introduced Eastman as the professor who would explain how the Democrats cheated. Eastman told the crowd that they just wanted Pence to “let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.”

Following him, Trump praised Eastman as “one of the most brilliant lawyers in the country” who looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’... Because if Mike Pence does the right thing, we win the election….”

Pence rejected the plan publicly, and at 1:00, members of Congress, gathered in joint session, began to count the electoral votes. Trump urged his supporters to walk with him up to the Capitol, saying: “it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down…. [W]e’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.”

After the speech, Trump went back to the White House while several hundred protesters stormed the Capitol. Even after he had been informed of the violence, Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

During the riot, Pence’s lawyer Greg Jacob emailed Eastman that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day…. [a]nd thanks to your ********, we are now under siege.” Eastman responded: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”

Trump eventually released a video asking the rioters to leave the Capitol but saying “We love you, you’re very special. You’ve seen what happens, you see the way others are treated that are so bad and so evil. I know how you feel.” At 6:00 pm, he tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Eastman continued to press Pence to delay the count until almost midnight on January 6.

Judge Carter concluded that Trump’s actions “more likely than not constitute attempts to obstruct an official proceeding.” He also concluded that “Trump likely knew the electoral count plan had no factual justification.” The plan, Carter wrote, “was a last-ditch attempt to secure the Presidency by any means.” He also found that “it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.”

Eastman and Trump “launched a campaign to overturn a democratic election, an action unprecedented in American history,” Carter wrote. “Their campaign was…a coup in search of a legal theory…. If [the] plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

 

[Go Bama]

March 29, 2022 (Tuesday)


Yesterday, a decision by Judge David Carter said that Trump had likely committed a federal crime when he was part of a conspiracy to obstruct Congress’s count of the votes of the Electoral College on January 6, 2021. Today, a Trump spokesperson called yesterday’s decision “absurd and baseless.”

But the investigation into the events of January 6 is producing more and more evidence about the attempt to overturn the results of the 2020 election, and it is neither absurd nor baseless.

Today, journalists Bob Woodward and Robert Costa broke a story about the internal White House records turned over to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Those records show previously unreported brief calls on the morning of January 6 between then-president Trump and unofficial advisor Stephen Bannon and between Trump and his personal lawyer Rudy Giuliani. They also show a ten-minute phone call with Representative Jim Jordan (R-OH), who was, as Woodward and Costa note, “a key figure in pushing fellow [Republican] lawmakers to object to the certification of Biden’s election.”

Trump also talked for 26 minutes with senior advisor Stephen Miller, who had publicly pushed the idea that alternative electors from contested states would replace the official electors who cast ballots for Biden. Trump then talked, cryptically, “to an unidentified person.”

And that was the last call identified before a seven hour and 37 minute gap in Trump’s phone logs. This blackout includes the crucial hours in which the Capitol was under attack. There is no record of any calls to or from Trump for 457 minutes, from 11:17 am to 6:54 pm.

Since there have already been reports of a number of phone calls during that time, including calls to Senator Mike Lee (R-UT) and House Minority Leader Kevin McCarthy (R-CA), the committee is now investigating whether Trump hid his calls or communicated through the phones of his aides, or perhaps through unsecure “burner” phones, cheap prepaid mobile phones that are untraceable and are thrown out when no longer needed. Trump tried to kill this idea by saying in a statement: “I have no idea what a burner phone is, to the best of my knowledge I have never even heard the term.”

But former national security advisor John Bolton contradicted that, saying he personally heard Trump using the term “burner phones” in several discussions and had discussed with him how burner phones helped people keep phone calls secret. In November 2021, Hunter Walker of Rolling Stone reported that the organizers of the January 6 events used burner phones to communicate with the White House and the Trump family, including Eric Trump, his wife Lara Trump, and chief of staff Mark Meadows.

The news of this gap in the record is significant because Trump and his allies have maintained that they were challenging the election results because they honestly believed the results were false, and that they believed they were operating within the law.

If so, why the seven-hour blackout?

The missing logs might not, in the end, obscure any phone calls made in that time, though, not only because witnesses can fill in some of the holes, but also because last summer, the January 6 Committee instructed 35 telecom and social media companies to preserve records of calls. When news broke today of the missing records, Crooked Media editor in chief Brian Beutler recalled McCarthy’s threat to punish telecom companies that cooperate with the January 6 Committee.

The ten-minute phone call with Jordan suggests that the 139 members of the House of Representatives who objected to the counting of the certified ballots were perhaps not simply making a protest vote, but rather were part of a larger organized Republican effort to steal the election. That story dovetails with yesterday’s story by Michael Kranish in the Washington Post about Senator Ted Cruz (R-TX), who worked hard to keep Trump in power despite the will of the American voters, intending to lay the groundwork for his own presidential bid in 2024.

Cruz and John Eastman, the author of the Eastman memo outlining a strategy for then–vice president Mike Pence to throw the election to Trump, have been friends for close to 30 years, since they clerked together for then–U.S. Appeals Court judge J. Michael Luttig. While Eastman presented a plan by which Pence could refuse to count Biden’s electors, Cruz wrote a plan for congress members to object to the results in six critical states that Biden won, establishing a 10-day “audit” that would have enabled Republican-dominated state legislatures to overturn the election results in their states. Ten other senators backed Cruz’s plan, offering a path to create enough chaos to keep Trump in power.

Luttig told Kranish that Cruz was central to the events of January 6. Contesting the states’ electoral votes required one senator and one representative for each state. Then–Senate majority leader Mitch McConnell (R-KY) made an effort to keep his caucus from working with representatives who planned to challenge the count. But junior senator Josh Hawley (R-MO) broke ranks and said he would join the challenges. Not to be outflanked by Hawley on the right, Cruz immediately stepped aboard the train and brought 10 senators with him. “Once Ted Cruz promised to object,” Luttig said, “January 6 was all but foreordained, because Cruz was the most influential figure in the Congress willing to force a vote on Trump’s claim that the election was stolen.”

Along with Representative Paul Gosar (R-AZ), Cruz was the first to challenge an electoral ballot: that of Arizona.

Cruz’s plan was similar to a plan White House advisor Peter Navarro explained in fall 2021 called the “Green Bay Sweep.” According to Navarro, that plan was to block the counting of electoral votes until public pressure forced Republican-dominated state legislatures to overturn the election results and give the presidency to Trump. (It is worth noting that Navarro’s plan absolves Trump of responsibility for the Capitol violence, and seems to have been deployed in part for that reason.)

Cruz’s spokesperson said the senator “does not know Peter Navarro, has never had a conversation with him, and knew nothing about any plans he claims to have devised.”

Navarro has his own problems. Yesterday, the January 6 committee moved to hold him and another Trump aide, Dan Scavino, in criminal contempt of Congress, sending the resolution to the full House for a vote. Navarro has ignored the committee’s subpoena, saying—falsely—that Trump had asserted executive privilege over his testimony and so he could not testify, despite the fact he had written extensively about his participation in the attempt to overturn the election. Scavino, Trump’s director of social media, has also ignored the committee’s subpoena.

A budget proposal from the Department of Justice yesterday revealed that it wants 131 more lawyers to handle January 6 cases. In the request, Deputy Attorney General Lisa Monaco said, "Regardless of whatever resources we see or get, let's be very, very clear: we are going to hold those perpetrators accountable, no matter where the facts lead us,... no matter what level.”

Today, on a right-wing news show, Trump appeared to try to change the subject and regain control over the political trends when he called for Russian president Vladimir Putin to release dirt on the Biden family, since “he’s not exactly a fan of our country.” Russian state TV featured a Russian government official calling for “regime change” in the United States, asking the people of the U.S. to replace President Biden with Trump “to again help our partner Trump to become President.”

 

[NationalTitles18]

Russian state TV featured a Russian government official calling for “regime change” in the United States, asking the people of the U.S. to replace President Biden with Trump “to again help our partner Trump to become President.”

Collusion is on display for all to see.

 

[Go Bama]

March 30, 2022 (Wednesday)


CBS News has hired Mick Mulvaney as a paid on-air contributor. In his first official appearance on Tuesday morning to talk about President Joe Biden’s budget proposal, anchor Anne-Marie Green introduced Mulvaney as “a former Office of Management and Budget director,” and said, “So happy to have you here…. You’re the guy to ask about this.”

Mulvaney was a far-right U.S. representative from South Carolina from 2011 to 2017, when he went to work for then-president Trump as the director of the Office of Management and Budget. While in that position, he also took over as acting director of the Consumer Financial Protection Bureau, the government organization organized by Senator Elizabeth Warren (D-MA) after the financial crisis of 2008. In its first five years, the CFPB recovered about $11.7 billion for about 27 million consumers, but in Congress, Mulvaney introduced legislation to abolish it. At its head, Mulvaney zeroed out the bureau’s budget and did his best to dismantle it.

While retaining his role at the head of the Office of Management and Budget, Mulvaney took on the job of acting White House chief of staff on January 2, 2019. This unprecedented dual role put him in a key place to do an end run around official U.S. diplomats in Ukraine and to set up a back channel to put pressure on newly elected Ukraine president Volodymyr Zelensky to announce he was launching an investigation into the actions of Joe Biden’s son, Hunter.

As director of OMB, Mulvaney okayed the withholding of almost $400 million Congress had appropriated for Ukraine’s protection against Russia. In May 2019, he set up “the three amigos,” Ambassador to the European Union Gordon Sondland, special envoy Kurt Volker, and Energy Secretary Rick Perry, to pressure Zelensky. When the story came out, Mulvaney told the press that Trump had indeed withheld the money to pressure Zelensky to help him cheat in the 2020 election. “I have news for everybody,” he said. “Get over it. There’s going to be political influence in foreign policy.” He immediately walked the story back, but there it was.

This event was the basis for Trump’s first impeachment. While Republican senators refused to hold Trump accountable, the Government Accountability Office found that withholding the money was illegal. Ironically, the GAO report came out during Trump’s second impeachment.

And yet, CBS News hired Mulvaney and simply introduced him as a former director of the OMB, saying he was the guy to explain Biden’s budget. (After the episode, the CBS News standards department reminded staffers they should always identify people with their relevant biographical information.)

Jeremy Barr of the Washington Post tonight revealed that he had reviewed a recording of a phone call in which the co-president of CBS News, Neeraj Khemlani, suggested they had hired Mulvaney to guarantee access to Republican lawmakers. “If you look at some of the people that we’ve been hiring on a contributor basis, being able to make sure that we are getting access to both sides of the aisle is a priority because we know the Republicans are going to take over, most likely, in the midterms,” Khemlani told staff. “A lot of the people that we’re bringing in are helping us in terms of access to that side of the equation.”

People on the right have talked about a “liberal media” now for a generation. It has come to represent the idea that the media is slanted toward the Democrats. But initially, the phrase meant media based in facts.

In the 1950s, those eager to get rid of the government system instituted by the Democrats during the Great Depression of the 1930s grew frustrated because people liked that system, with its business regulation, basic social safety net, and promotion of infrastructure. In 1951, in God and Man at Yale: The Superstitions of “Academic Freedom,” William F. Buckley, Jr., rejected the Enlightenment idea that rigorous debate over facts would lead toward truth; the fondness of a majority of Republicans and Democrats for the newly active national government proved people could not be trusted to know what was best for them. Instead, he called for the exclusion of “bad” ideas like an active government, and for universities to push individualism and Christianity.

Three years later, Buckley and his brother-in-law, L. Brent Bozell, Jr., would divide the world into “Liberals,” by which they meant the majority of Americans from both parties who liked the New Deal government, and “Conservatives” like themselves, who were determined to overturn that government. Movement Conservatives lumped Soviet-style socialism and the New Deal government together.

With its focus on facts, the media, like the universities, was “liberal,” and Movement Conservatives wanted their ideology to be heard. In 1987, President Ronald Reagan’s appointees to the Federal Communications Commission killed the Fairness Doctrine, which had required public media to present issues fairly, and right-wing talk radio took off. In 1996, Australian-born Rupert Murdoch started the Fox News Channel, calling it “fair and balanced” because it presented the Movement Conservative ideology that fact-based media ignored.

Twenty-five years later, that ideology had become so powerful that true believers tried to stop a legitimately elected Democrat from becoming president, and in the year since, their conviction has only become stronger. Now CBS News has hired a member of the administration that urged the attack on our democracy.

“When, oh Lord, when will the elite political media treat the current Republican Party as the threat to the republic that it most obviously is?” asked Charlie Pierce in Esquire.

Here’s what’s at stake: On the one hand, Biden is trying to rebuild the old liberal consensus that used to be shared by people of both parties, instituted by Democrat Franklin Delano Roosevelt to protect workers from the overreach of their employers and expanded under Republican Dwight Eisenhower to protect civil rights. To this, Biden has focused on those previously marginalized and has added a focus on women and children.

Biden’s new budget, released earlier this week, calls for investment in U.S. families, communities, and infrastructure, the same principles on which the economy has boomed for the past year. The budget also promotes fiscal responsibility by rolling back Trump’s tax cuts on the very wealthy. Biden’s signature yesterday on the Emmett Till Antilynching Act, making lynching a federal hate crime in the United States, is the culmination of more than 100 years of work.

Biden and Secretary of State Antony Blinken are defending democracy against authoritarianism, working to bring together allies around the globe to resist the aggression of Russian president Vladimir Putin.

On the other hand, the Republican Party is working to get rid of the New Deal government. While Senate Minority Leader Mitch McConnell wanted to face the midterms without a platform, Senator Rick Scott (R-FL), who chairs the committee responsible for electing Republican senators, has produced an “11-point plan to rescue America.” It dramatically raises taxes on people who earn less than $100,000, and ends Social Security, Medicare, Medicaid, and the Affordable Care Act.

With a 6 to 3 majority on the Supreme Court, Republicans have also taken aim at abortion rights and are now talking about ending other civil rights protected by the federal government after 1950: the right to birth control, interracial marriage, and same-sex marriage.

The Republicans have sided with authoritarianism as they back former president Trump and his supporters, over 2,000 of whom stormed the U.S. Capitol on January 6, 2021. This week, federal judge David Carter wrote that it was “more likely than not” that Trump committed a federal crime when he encouraged the attack, and yesterday we learned that there are more than 7 hours of phone records missing from the official White House logs of that day. At The Guardian, Hugo Lowell today reported that Trump made at least one call from the White House that day that should have been on the logs and was not, opening up the possibility that Trump’s people tampered with the phone records.

And while Putin has launched a war of invasion on our democratic ally Ukraine, just yesterday, Trump asked Putin to help him dig up dirt on a political rival, just as he did in 2016.

Voters cannot choose wisely between these two paths unless their news is based in facts. Earlier this week, fact triumphed over ideology on the Fox News Channel, when anchor John Roberts noted that Senator Rick Scott’s 2022 Republican platform calls for raising taxes on most Americans and ending Social Security. Scott said that Roberts was using “a Democrat talking point.” But Roberts stood firm on facts: “It’s in the plan!” he said. “It’s not a Democratic talking point. It’s in the plan!”

 

[Go Bama]

March 21, 2022 (Friday)


Today, Judge Mark E. Walker of the Federal District Court in Tallahassee, Florida, struck down much of the new elections law passed by the Florida legislature after the 2020 election. This is the first time a federal court has sought to overrule the recent attempts of Republican-dominated state legislatures to rig the vote, and Walker made thorough work of it.

Four cases were consolidated into one: the League of Women Voters v. Florida Secretary of State Laurel M. Lee, National Republican Senatorial Committee, and Republican National Committee. In his decision, Walker used Florida as a case study to explain how suppressing the Black vote rigs the system in favor of Republicans. His 288-page decision is a frightening portrait of how Republicans are taking control of certain states against the will of voters.

“This case is about our sacred right to vote,” Walker wrote, “won at great cost in blood and treasure. Courts have long recognized that, because “the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”

While the defendants who wrote Florida’s new election law, SB 90, argued that the changes to voting rules were minor tweaks to avoid voter fraud, the plaintiffs said the new law “runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters—all to improve the electoral prospects of the party in power.” Walker concluded that “for the most part, Plaintiffs are right,” and notes that “the right to vote, and the V[oting] R[ights] A[ct] particularly, are under siege.”

Walker notes that the issue at stake is not whether the legislators who wrote the new laws are racist, but rather whether race was a factor in the writing of SB 90. Recognizing that few people would today openly admit their racial motivations, he explains that the court needed to look at the circumstances around the passage of SB 90 to determine if race played a role in the law. “Think of it like viewing a pointillist painting, such as Georges Seurat’s A Sunday Afternoon on the Island of La Grande Jatte,” Walker wrote. “One dot of paint on the canvas is meaningless, but when thousands of dots are viewed together, they create something recognizable. So too here, one piece of evidence says little, but when all of the evidence is viewed together, a coherent picture emerges.”

Those dots of paint begin with Florida’s “grotesque history of racial discrimination.” After the Civil War, the Reconstruction legislature limited the vote to white men; when Congress insisted that Black men must be able to vote, Florida legislators changed the law to take their vote away little by little.

First, they changed the constitution to let the governor appoint all statewide officeholders; he appointed only white men. Then they required a sort of early voter ID: a voter had to bring a registration certificate to the polls. Finally, in 1888, the lawmakers passed the “Eight Box Law,” requiring that votes for each state office had to be dropped correctly into eight different boxes in order to count, an impossibility for illiterate farmers. It also passed a poll tax. Although all these new laws were neutral on their face, they drastically cut down Black voting. According to election historian J. Morgan Kousser, between 1888 and 1892, Black voting dropped from 62% to 11%.

For those still undaunted, violence sealed the deal. In 1960, Gadsden County had more than 12,000 Black residents old enough to vote, but only seven of them were registered. Not a single Black congress member was elected between 1877 and 1992. Latinos, too, have had trouble voting, largely because of language barriers.

Historic voter suppression is relevant today because differences in political power help to create differences in economic and social power. While 5.4% of White family households are below the poverty line, 15.8% of Black and 17.7% of Latino family households are. The median White household income ($65,149) is 46.7% higher than the Black median household income ($44,412) and about a quarter higher than the Latino median household income ($52,497). In terms of education, 6.9% of the White population has not finished high school, while 15.3% of the Black population and 20.4% of the Latino population have not.

About 4.8% of White households don’t have a car or a truck, while 7.3% of Latino households and 10.4% of Black households lack them, meaning they rely on public transportation at a higher rate than White Americans and so face longer commutes to work. Walker writes that “these disparities are the stark results of a political system that, for well over a century, has overrepresented White Floridians and underrepresented Black and Latino Floridians,” and he notes that 90% of Florida’s White voting age citizens are registered to vote, while only 83% of its Black and 77% of its Latino voting age population is.

Since 2004, White voters in Florida have been likely to vote for Republicans, but Black voters in Florida have favored Democratic candidates for president and governor at an average rate of about 89.7%. (In contrast, Latino voters tend to swing between parties.) Race and politics thus cannot be separated, and since Florida elections tend to be very close, decreasing the Black vote helps the Republican Party. Getting rid of even a few thousand votes can swing an election. It is “easy to see how Republican legislators who harbor no racial animus could be tempted to secure their own position by enacting laws targeting Black voters,” Walker wrote.

And since the days before the 2000 election, they have repeatedly done so. The infamous 2000 voter purge cut ten times as many Black voters as White voters from the rolls that year before victory in the presidential election came down to a few hundred votes in Florida for Republican candidate George W. Bush. Since then, the state has repeatedly purged its rolls, and legitimate Black voters have been disproportionately removed.

Similarly, when Black Floridians began to use early voting, the legislature changed the laws to limit that practice. So, in 2012, Black voters stood in line for as long as 8 hours, and tens of thousands ultimately were unable to cast a vote. In 2018, voters in Florida overwhelmingly favored restoring voting rights to felons who had served their sentences; the legislature promptly passed a law requiring felons to pay all fees they owed to the state before they could vote, a law that, again, affected Black voters more than White ones.

The 2020 election went smoothly in Florida, but the legislature nonetheless pushed through SB 90 to “instill voter confidence.” A text exchange between a legislator and the chair of the Florida Republican Party called this justification into question: they discussed how the standard procedures for absentee ballots were “killing” the Republican Party because the Democrats had so many more absentee voters the Republicans “could not cut down [that] lead” unless the law changed.

The new law makes it harder for voter-registration organizations to sign up voters. It limits the use of drop boxes and voting by mail, pushing people to vote in person, and then forbids giving food and water to the people who will inevitably be waiting in line to vote.

“This Court finds that the Legislature enacted SB 90 to improve the Republican Party’s electoral prospects,” Walker wrote. He required Florida to get the approval of the federal government before trying to make any such changes for the next ten years.

Florida will challenge this decision, and it may well win before the conservative Court of Appeals for the 11th Circuit or the current Supreme Court. Republicans have defended their assaults on voting by citing the Constitution’s provision that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;” but Walker noted that there is another clause in the Constitution that follows that semicolon. It reads: “but the Congress may at any time by Law make or alter such Regulations….”