Monthly Archives: October 2020

2020 General Election, Democracy, Republicans

Legal principles be damned: Republican Justices smack down the Democratic Party and voting rights

Originalism? A close reading of the text of the Constitution? Strict respect for the law as written? Nonsense. Even Chief Justice John Roberts, who has made a career of disabling the Voting Rights Act, hasn’t been on board with the consistently pro-Republican Party, anti-voting rights’ series of grotesque rationales Kavanaugh, Gorsuch, Alioto, and Thomas have adopted in case after case after case.

Harry Litman in this morning’s Los Angeles Times, after Justice Kavanaugh cited Bush v. Gore as precedent:

The deciding principle of Bush vs. Gore is generally understood to be no more than this: George W. Bush wins. Or, to be as charitable as possible toward the five members of the court who made up the majority: The ruling was necessary to stop the partisan bloodletting and chaos generated by hanging chads in Florida.
The decision was so tenuous and rushed that the justices themselves, in a stunning departure from judicial practice, wrote into the unsigned opinion that it should not serve as a precedent: It was “limited only to the present circumstances.”
Nonetheless, Kavanaugh on Monday embraced the most far-fetched theory laid out in Bush vs. Gore, in a separate opinion written by Rehnquist, who was straining to figure out a way to insert the court into the Florida mess.

Next up in the stampede to indelibly brand SCOTUS as a tool of Republican voter suppression, Neil Gorsuch, who in a dissent trampled on precedent and federalism to overrule a state supreme court ruling on the state’s constitution and statutes, as described by Mark Joseph Stern in Slate:

Gorsuch’s approach here—going over state law with a fine-toothed comb to see if the state court got it right—is a stunning assault on state sovereignty. An oddly timed one, too: It is outrageous enough to reject an unbroken line of precedent that lets states run their own elections; it’s another thing to do so six days before Election Day. The Supreme Court’s ultraconservative faction appears bent on destabilizing this election. These justices are teeing up another Bush v. Gore if the presidential race comes down to Pennsylvania or North Carolina. They have laid the groundwork to nullify late-arriving ballots on the basis of a dangerous constitutional theory that even Chief Justice John Roberts finds too extreme.

Donald Trump will soon lose the popular vote to Joe Biden by a greater margin than he did to Hillary Clinton in 2016. If all the votes are counted, Donald Trump will lose the Electoral College to Joe Biden. The slender thread his reelection hangs on is the Republican Party’s campaign of voter suppression, which Trump and the GOP hope will lead to a victory via machinations in the courts or a state legislature (or two) or Congress — not one decided at the ballot box.

A resounding Biden victory with a decisive judgment rendered by American voters will not guarantee that Republicans cannot steal the election, but it’s our best bet at this stage. Judicial rulings to stop votes from being tallied — as with Bush v. Gore — is the last thing this country needs. One stolen election in two decades is more than enough.

(Image: Brett Kavanaugh September 27, 2018, vowing revenge on Democrats:

“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups.

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country.

And as we all know, in the United States political system of the early 2000s, what goes around comes around.”)

Democracy, Donald Trump, Republicans

A perspective that clarifies the agenda of the contemporary Republican party

Ten days after the FBI broke up a domestic terrorist plot to kidnap and murder Michigan Governor Gretchen Whitmer, Donald Trump encouraged rally goers (shoulder to shoulder, without masks, cheering and jeering in the midst of rising rates of coronavirus infection and hospitalization) to chant, “Lock her up,” while adding himself: “Lock ’em all up.”

As we approach an election that will likely deliver an emphatic defeat to the President, two prominent Republican Senators, Ben Sasse and John Cornyn, offered criticism of their party’s leader, but no condemnation of either his campaign to delegitimize the election or his musings about jailing his political opponents (including Hillary Clinton, Barack Obama, and Joe Biden). Washington Republicans refuse to acknowledge these expressions of an increasingly authoritarian chief executive as causes for concern.

Meanwhile, the United States Senate, controlled by a party dominated by a shrinking base — mostly white, mostly men, shrugging off the twin crises of a raging pandemic that is hardly slowing down and a struggling economy months or years away from full recovery, is rushing toward confirmation of a justice of the Supreme Court. Why the rush? Ronald Brownstein offers an analysis that puts the issue into context:

The historic number of Americans who stood in long lines to cast their ballot in cities from Atlanta to Houston symbolizes the diverse, urbanized Democratic coalition that will make it very difficult for the GOP to win majority support in elections through the 2020s. That hill will get only steeper as Millennials and Generation Z grow through the decade to become the largest generations in the electorate.

Every young conservative judge that the GOP has stacked onto the federal courts amounts to a sandbag against that rising demographic wave. Trump’s nominations to the Supreme Court of Brett Kavanaugh, Neil Gorsuch, and Barrett—whom a slim majority of Republican senators appears determined to seat by Election Day—represent the capstone of that strategy. As the nation’s growing racial and religious diversity limits the GOP’s prospects, filling the courts with conservatives constitutes what the Princeton University historian Sean Wilentz calls “the right-wing firewall” against a country evolving electorally away from the party.

Small-d democratic governance is antithetical to the success of the contemporary Republican Party. Voter suppression and gerrymandering are central tenets of the GOP’s electoral strategy, while the party has come to rely on the courts to stifle the aspirations of a burgeoning American majority. 

(Image of Donald Trump intoning, “Lock ’em all up,” from WZZM13 on YouTube.)

2020 General Election, Democrats, Republicans

Senator Feinstein, living in the past, misses the big picture in GOP’s rush to confirm Amy Coney Barrett

Hard to believe in October 2020, just over two weeks until election day, that a prominent Democratic senator — the ranking member, who has been in office for 28 years — is so clueless about the raw power play Republicans just made in the Senate Judiciary Committee. Senator Dianne Feinstein had this to say to Chairman Lindsey Graham:

“This has been one of the best set of hearings that I have participated in. And I want to thank you for your fairness and the opportunity of going back and forth. It leaves one with a lot of hopes, a lot of questions, and even some ideas, perhaps some good bi-partisan legislation that we can put together to make this great country even better. So, thank you so much for your leadership.”

Earlier this week, I highlighted Josh Marshall’s injunction that it was foolish to embrace the pejorative language of ones opponents — especially when it creates a false narrative that “turns the entire reality of the situation on its head.”

Joe Biden hasn’t followed the injunction. I’m sure his advisors are unconcerned about their candidate’s words on what they regard (at least at this stage of the campaign) as a small-ball issue. The Biden campaign has been a smashing success with a candidate who has hardly strayed from strategic messaging on big picture issues.

In the context of the rush to confirm a conservative ideologue to replace Ruth Bader Ginzburg on the Supreme Court, however, Dianne Feinstein’s fulsome praise of Lindsey Graham — followed by a hug, without masks — is inexcusably damning.

In 2018, when Feinstein ran for reelection, two Democrats had finished first and second in the voting in California’s jungle primary, and so faced off in the general election. The California State Democratic Party endorsed Kevin de León, the former president pro tempore of the California State Senate, over the sitting U.S. Senator. De León also received my vote. Why?

In part (speaking for myself) because Dianne Feinstein was, and is, living in the past. She is an anachronism, out of sync with contemporary politics, and willfully blind to the unwavering commitment of her Republican colleagues to scorched earth opposition to all things Democratic. The refusal of the Republican majority to even hold a hearing for Merrick Garland seems to have slipped her mind, while she willingly overlooks Republicans’ deceitful hypocrisy in doing a 180 with the Barrett nomination. (“I want to thank you for your fairness.”)

California’s senior senator recalls an era when Ted Kennedy and Orin Hatch co-sponsored legislation and when John McCain and Joe Lieberman could form strong friendships — and often bipartisan agreements — across the aisle. She remembers an era when comity and senatorial courtesy were ascendant; a time, just a year before her election to the Senate, when committee chair Joe Biden could decide to preclude calling supporting witnesses for Anita Hill because he had made a pledge to a Republican colleague in the senate gym to hurry the proceedings along.

Those were the days. Whatever we think of them, though, those days are long gone. But Dianne Feinstein still clings to them.

This morning’s Los Angeles Times reports [emphasis added]: “Polls have shown that a majority of Americans believe the winner of the election should fill the seat left vacant by the death of Justice Ruth Bader Ginsburg. Meanwhile, Republicans prominently featured Feinstein’s comments and the hug with Graham in digital ads and news releases.“

(Image: Bloomberg on YouTube.)

2020 General Election, Democracy

Senator Whitehouse tutors viewers watching at home on the dark money scheme not visible at the hearing

Describing (on day two) what was happening at the Senate Judiciary Committee hearing as comparable to a puppet theater, Senator Sheldon Whitehouse offered a backgrounder on “a $250 million dark money operation” that led to the Amy Coney Barrett nomination.

“You are not going to understand the real dynamic what is going on here, and you are certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react,” Sheldon said.

He jabs three Republican members of the committee, Senators Chuck Grassley, Ted Cruz,  and Chairman Lindsey Graham, as well as Majority Leader Mitch McConnell for their “hard-to-explain hypocrisy” (though, of course, unprincipled political opportunism and the embrace of raw political power is not all that hard to explain). He also punctures the charade that Republicans have performed each day at the hearing: that Democrats’ attention to Roe v. Wade, Obergefell, and numerous Obamacare cases is inexplicable, since Amy Coney Barrett has pledged to rule fairly, without any bias except a commitment to the letter of the law, in whichever cases she is presented with as a justice.

Senator Whitehouse and his colleagues know that the idea of Barrett as a blank slate is ludicrous, no matter how much Republicans pretend otherwise. These cases have been in the crosshairs of the conservative legal movement, the party’s conservative evangelical base, and Republican elected officials since each of the respective SCOTUS rulings were handed down. The right to abortion, to gay marriage, to affordable healthcare — even when one has preconditions that before the ACA would have precluded having health insurance — are at stake.

In each case, the GOP has fought fiercely to overturn the ‘liberal’ rulings, yet in the hearings this week, Republican senators appeared baffled at the idea that somehow confirming the Notre Dame professor as a justice would lead to any reversals, much less any real world consequences. But of course, Professor Barrett was chosen because there is in her record virtually no wavering from the party line — championed with immense infusions of corporate dollars — on any of these issues (or any others to which the GOP and its donor base are committed).

While illustrating the connections between deep-pocketed right-wing foundations, huge corporations, the National Federation of Independent Businesses, the Judicial Crisis Network, the Federalist Society, and the Trump White House, the senator explained the “scheme with the same funders selecting judges, funding campaigns for the judges, and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do.”

The lesson on a very impressive, highly successful decades-long campaign by corporate interests to capture the federal courts is much more illuminating than 28 minutes of Q & A with the nominee would have been.

The transcript is available from the Center for Media and Democracy, but it’s worthwhile to watch the presentation, which included helpful visual aids.

2020 General Election, Democrats, Republicans

The phrase “Court-packing” should not be in the vocabulary of any Democratic candidate

“I’m not a fan of court-packing, but I don’t want to get off on that whole issue,” Biden told CNN affiliate WKRC in Cincinatti. “I want to keep focused. The President would love nothing better than to fight about whether or not I would, in fact, pack the court or not pack the court.”

In this response, Joe Biden used the phrases “court-packing” and (twice) “pack the court.” In doing so, he accepted, wholly, unreservedly the Republican-frame of the question of whether Democrats — if they win the presidency and the Senate — should consider changing the number of Supreme Court justices.

While this is unlikely to have a measurable impact on the trajectory of his campaign, I regard this as an unforced error.

. . . I thought I would become apoplectic when I saw that some Democrats were referring to expanding the Supreme Court as “court packing” or tacitly accepting the use of the phrase when asked about it by reporters. Any Democrat who uses this phrase should be, metaphorically at least, hit over the head with a stick.

The simple fact is that “court packing” is a pejorative phrase. It is nonsensical to use it as a description of something you’re considering supporting or actively supporting. If you decide to support a certain politician you don’t refer to deciding to ‘carry their water.’ Someone who supports expanding the estate tax doesn’t call it the ‘death tax’. This is obvious. Doing so is an act of comical political negligence. But of course the error is far more than semantic. No one should be using this phrase because it is false and turns the entire reality of the situation on its head. — Josh Marshall, the day before Biden made his comment

Although I don’t advocate hitting Biden over the head with a stick, I wish his team would have armed him with another response. The Biden campaign — like the Democrats on the Senate Judiciary Committee on day one of the hearing — has maintained superb message discipline. They lost it in this instance.

Republicans don’t use the phrase “voter suppression” to describe their electoral strategy. Or “court-packing” to describe their packing the federal courts at all levels with Republican lawyers — often regardless of their qualifications, judicial experience, or temperament — whom they expect to be ideological and partisan jurists to rule consistently against Democratic constituencies, issues embraced by Democrats, and Democratic governors and legislators.

But, in addition to conveying the simple rule, Don’t use a pejorative expression flung at you by your political opponents, there’s a more basic issue at work (just beneath the surface). Josh Marshall followed the obvious point with an elaboration that reveals a more fundamental blunder [emphasis added]:

If you decide to support a certain politician you don’t refer to deciding to ‘carry their water.’ Someone who supports expanding the estate tax doesn’t call it the ‘death tax’. This is obvious. Doing so is an act of comical political negligence. But of course the error is far more than semantic. No one should be using this phrase because it is false and turns the entire reality of the situation on its head.

Republicans have pursued an extreme agenda through corrupt means to politicize the courts. That’s the issue staring us in the face (though not, in the midst of an election campaign that will culminate in three weeks’ time, an issue that Biden must address now).

The formula was and is simple: use every ounce of raw political power to stack the federal judiciary with conservative ideologues. Refuse to consider nominations; then rush them through. No nominations within a year of an election; but quickie confirmations within a month of an election. Republicans have taken the constitutional framework and abused it to the maximum extent possible to achieve this transcendent goal. While these are almost universally abuses, none are clearly illegal or unconstitutional. At the most generous they amount to using every tool that is not expressly illegal to maximize control of the federal judiciary.

The untimely death of Ruth Bader Ginsburg in the final weeks of an election Republicans seem likely to lose has cast the whole drama in clarifying light. Republicans are now on the cusp of securing a 6-3 conservative High Court majority which will act as an effective veto on Democratic legislation using arguments no less facially absurd than the list used to attack Obamacare.

This is all the work of decades. But it is particularly the work of the last decade, 2010 to 2020. And it is all guaranteed, locked in, final on the assumption that Democrats will not even consider much milder and expressly constitutional remedies to repair the damage wrought by Republican judicial corruption. Indeed, conservatives are now reacting with something like apoplexy at the idea all this work, wrecking half the government in the process, could be voided with a simple majority vote to expand the federal judiciary and the Supreme Court. The Republican program is raw power for me, norms and prudence for you. Few things show how much Washington DC remains wired for Republican power than the idea that anyone can with a straight face call the possibility of Democrats taking some remedial action “court packing.”

Joe Biden, take notice.

(Image: Amy Comey Barrett makes her opening statement on day one via PBS/YouTube.)

2020 General Election, Donald Trump

A contagious Trump, back at White House/Walter Reed Hospital Annex, preens and postures as a strongman

NBC News via YouTube.

A sick man with access to the finest, state of the art therapies and exceptional medical doctors, returns to his residence. With all the resources of the federal government available, he is as safe and secure as if he were still tucked into a bed next to the presidential suite at Walter Reed, which is a ten-minute helicopter ride away.

Heedless of anyone else’s welfare, he has revealed (time and time and time and time and time again) — in the face of more than 210,000 American deaths and 7 million infections — his character for all to see.

(Another tell on the man’s character: Neither the White House, nor Trump’s physicians have answered questions about the President’s most recent negative test. While Trump has repeatedly claimed that he is tested everyday, that’s difficult to take at face value. The test is hardly comfortable. I suspect that the would-be strongman has been unwilling to submit to daily testing.)

Sean Hannity, a master of misdirection and duplicity, proclaims a great man — on par with Churchill and FDR.

HANNITY: Remember 1933 during the height of The Great Depression, my father was growing up in those years, on the brink of a World War. Franklin Delano Roosevelt proclaiming we have nothing to fear but fear itself. A reminder. 

[CLIP BEGINS]

PRESIDENT FRANKLIN DELANO ROOSEVELT: Let me assert my firm belief that the only thing we have to fear is fear itself. Nameless, unreasoning, unjustified terror. Which paralyzes needed efforts to convert retreat into advance. 

[CLIP ENDS]

HANNITY: And on the other side of the Atlantic — 1940 — the great Winston Churchill echoed this fearless call to action. A powerful address. Victory at all costs. Victory in spite of all terror. Victory however long and hard the road may be, for without victory, there is no survival. Remember this?

[CLIP BEGINS]

WINSTON CHURCHILL: I have nothing to offer but blood, toil, tears, and sweat. You ask, what is our aim? I can only say one word — Victory. Victory at all costs. Victory in spite of all terror. Victory, however long and hard the road may be, for without victory, there is no survival. 

[CLIP ENDS]

HANNITY: And during the bombing of Britain, where was he everyday? Going out, risking his life, being among the people of Great Britain. In times of great hardship you must fight for survival. And that is exactly what the President has done during this country’s battle against COVID-19. 

Not everyone will agree with that assessment. I suppose we might regard the campaign video Trump made immediately upon his return to the White House as a Rorschach test:

I just left Walter Reed Medical Center, and it’s really something very special– the doctors, the nurses, the first responders. And I learned so much about Coronavirus. And one thing that’s for certain, don’t let it dominate you. Don’t be afraid of it. You’re going to beat it. We have the best medical equipment. We have the best medicines, all developed recently. And you’re going to beat it.

I went, I didn’t feel so good. And two days ago– I could have left two days ago. Two days ago, I felt great, like better than I have in a long time. I said just recently, better than 20 years ago. Don’t let it dominate. Don’t let it take over your lives. Don’t let that happen.

We have the greatest country in the world. We’re going back. We’re going back to work. We’re going to be out front. As your leader, I had to do that. I knew there’s danger to it, but I had to do it. I stood out front. I led. Nobody that’s a leader would not do what I did. And I know there’s a risk. There’s a danger, but that’s OK. And now I’m better. And maybe I’m immune, I don’t know.

But don’t let it dominate your lives. Get out there. Be careful. We have the best medicines in the world. And there all happened very shortly, and they’re all getting approved. And the vaccines are coming momentarily. Thank you very much. And Walter Reed, what a group of people. Thank you very much.

A KFF poll last month revealed the remarkable faith of the Republican base — in spite of all evidence to the contrary — in Donald Trump’s commitment to preserving the ACA’s guarantee of coverage for pre-existing conditions.

https://www.nytimes.com/2020/10/01/upshot/trump-pre-existing-conditions-polls.html

Said one voter: “I truly, in my heart of hearts, believe that even though he sometimes says things I don’t like, and acts in ways I wish he wouldn’t, I still think he has everybody’s best interest at heart.”

Will the Republican base — mistrustful of the mainstream media, medicine and science, and the liberal elite — accept Trump’s coronavirus worldview? Perhaps so. But that base, by November 3, may be considerably smaller than it was in November 2016.

Time will tell.