Thursday, October 21, 2021

Crybabies

Well, yeah; but we can call those people "chowderheads" and move on. Such people have always been with us, and always will be. "Cancel culture" is a chimerical term dreamed up to fit on a bumper sticker. It is as much a threat to the republic or open society as critical race theory is, although the latter is actually real, except when chattered about by the same poeple who think "cancel culture" is real. We really don't have to "both sides" this matter to a fare-thee-well. I wouldn't even call them "threats to free speech," unless a government entity is behind them via either statute, regulation, or lawsuit. So why does "cancel culture" have to come up at all? Eastman can cry crocodile tears all he wants; what he did as tantamount to sedition (if not fitting the actual elements of the actual crime) and he deserves to be treated harshly for his words and especially his actions (such as being Trump's "brain trust" and egging the crowd on, on January 6 of this year). What has actually happened? He's been criticized: I can't tell if that's harsher, or less harsh, than the criticisms leveled against the "Princess of Arizona": Meghan McCain is more widely known; then again, she thrust herself onto the national stage.

All Eastman did was plot to destroy the Republic.  Fancy getting mild criticism for that.

If we're going to point and laugh at the thin-skinned "Princess of Arizona" (you know you want to), can we do any less to John Eastman?

THIS IS NOT WORTH WORRYING ABOUT!

a) the only people paying attention are Twitter geeks who want to armchair quarterback this stuff. The majority of the country doesn't know who Matt Gaetz is and doesn't care. (and by the way, how many people on Twitter can explain what the House Rules Committee does and why it's considering a criminal referral for Steve Bannon?  I've read Bad Legal Twitter, I can tell you the number of correct answers would be almost zero.)

b) Who gives a shit what Matt Gaetz says anyway?  Weasels gonna weasel.

c) the "talking point" that cases were thrown out on procedural grounds is laughable.  I've seen pro se cases proceed to discovery because they met the barest minimum requirements for filing a lawsuit.  Getting a case thrown out on "procedural grounds" doesn't mean you used the wrong font size, it means you couldn't present ANY evidence when challenged.  And honestly, who's paying attention to those talking points, except the people who think Trump is still flying around on Air Force One (those would be the same people who think AFOne is a specific airplane).

Not everything is the end of civilization as we know it, or the doom of the republic.
See? Everything fine, now?  The more interesting question: ...is what Gaetz and Jordan were doing there?* I'm sure it had something to do with procedural rules and if we could only turn that into a talking point, boy, then we'd have 'em, boy!  Then we'd show 'em!  You betcha!


*I learned later they came as witnesses to speak in defense of Bannon.

Wednesday, October 20, 2021

Sticks And Stones…

...and some really stupid tribalism.

Okay, I’m Confused

One of the funniest accounts on Twitter is suspended because Slate (probably) couldn’t detect the sarcasm 

But this account continues:
Read the article; the guy posting on Twitter regularly writes outrageously anti-Semitic stuff under the guise of Christianity (I remember my seminary professor who attended Notre Dame and used to tell visiting families the statute stop the main building was “a nice Jewish girl”). Sick white supremacist crap, but he suspends his account periodically so Twitter won’t ban him. Apparently that works.

Maybe if somebody complains that it’s a parody…

O brave new world, that has such creatures in it.

I’m gonna miss DPRK.
Although maybe not for long.

WE TOLD YOU SO!

Game over, man! Game over!

Children of Burwell v. Hobby Lobby

Bastard children, at that:

A US Supreme Court justice on Tuesday rejected a request by health workers in Maine to block a statewide vaccine mandate, while their wider legal challenge against the measure proceeds.

All healthcare workers in the state will have to be fully vaccinated under the mandate, which comes into force on October 29.

Several unnamed health workers and one health provider insist the decree violates their constitutional right to freedom of religion, citing conscientious objections to the vaccine.

They brought the case against Maine Governor Janet Mills and other officials, and have asked the courts to put a preliminary block on the mandate while their case is heard.

On Tuesday, Justice Stephen Breyer -- who responds to emergency applications from Maine -- denied their petition for a preliminary injunction, which had already been rejected by a district court.

Again, failure to grant an injunction doesn't mean the moving party has no case; it just means they don't have a very good one.

GOP Logic, Gym Jordan Edition

At a House Rules Committee hearing, Chairman James McGovern (D-MA) noted that Jordan had first refused to say "the election was not stolen" when he appeared before the committee earlier this year.

"Can you say those five words today?" McGovern asked Jordan.

"I'll give you the same answer," Jordan replied. "I never said it was. I said we should investigate it. I said on January 6th when the electoral votes were counted that Joe Biden is the president of the United States."

McGovern tried to speak but Jordan talked over him.

"The real question is why don't you guys want to investigate what happened?" Jordan ranted.

The bank was not robbed, and no money was stolen.  But why won't the police investigate what happened on the day the bank wasn't robbed?

"Itty Bitty Living Space"

But total cosmic power.

The only federal case I ever worked on was also the first court case I ever worked on.  This was before law school.

The case was a products liability case against two defense contractors (no, really):  McDonnell-Douglas, who made the ejection seat for the Fairchild-Republic A-10 warthog (then a new military jet), and Fairchild.  The pilot, in training on the A-10, had to eject; the ejection seat caused his head to roll violently backward on the seat back (no supporting head rest like you now have in your car).  The weight of his head effectively caused his spine to sever the spinal cord.*

42 years ago, and I still remember some of these details vividly.

The case was in the Western Federal District, which runs from Austin out to the Trans-Pecos (look it up; some clown in D.C. drew it based on population, not geography).  The judge was "visiting" Austin, although he was a federal judge for the Western District.  His first announcement was that he had a jury trial docketed for the following Monday in Pecos, and he was going to be there.  This case involved two defendants, as I said, and a lot ot technical data on jets, ejection seats, and flying high-speed military aircraft (the risks of, etc.).  We had expected to be in trial for two weeks, maybe three.  The judge gave us 6 days.  3 for the plaintiff's case, one each for each defendant, and a day (Saturday) for the jury arguments by all three parties.  Thursday and Friday, as I recall, ran into the night so defendants could each make their case.

I looked up the judge's name, so I could remember accurately where he was returning to for that next trial. Texas Monthly said this about him:

Bunton’s reputation within legal circles is not that of an activist judge in the mold of William Wayne Justice nor a legal scholar such as his colleague Harry Hudspeth, but that of an efficiency expert with a low tolerance for BS. Before he became a senior judge in 1992 (he was appointed to the Western District in 1979 by Jimmy Carter), his letterhead identified his court as the Rocket Docket, and he still runs one of the fastest courts in law.

No shit, Sherlock.

The rest of that paragraph was equally interesting:

Bunton permits lawyers to approach the bench or a witness but once, and he has been known to shoot offensive attorneys with a water pistol. “I hate to waste jurors’ time, my time, lawyers’ time,” he says, lamenting what he sees as the crippling of the legal system. “A lot of state court judges don’t push their dockets, for whatever reason. I don’t think they’re necessarily lazy, they just don’t want to incur the wrath of people who are going to elect them. But it can be done.”

I saw a state judge literally cowed by a former Texas AG who strutted around the courtroom in a jury trial like a peacock, approaching witnesses on the bench, standing over the jurors, and otherwise violating the decorum of the courtroom.  (All of that happens in TeeVee trials, but it's absolutely not allowed in the courtroom.  Lawyers stand behind their table to address the court, or the witness, and never address the jury except during opening or closing arguments.)  A lawyer who tried that in Federal court would find his ass handed to him in short order.  Jurors generally don't like lawyers who get rebuked by the judge, so most lawyers don't do it.

The down side of being a federal judge in Texas would be the travel.  The Western District, as I said, extends from Austin to El Paso.  That's a lot of ground to cover, and a lot of travel to incur; and most of it ain't scenic.  Outside of Austin or El Paso, you're not exactly sleeping over in Paris or London or New York City.

Still, Federal judges don't take shit from anybody.  It's compensation.


*The liability issues centered on wrongful death:  the pilot had to eject because the controls froze (allegedly a design flaw), and ejection killed him (again, a design flaw).

So If I Take The Name "Jonathan Swift" Off...

...Slate would reprint "A Modest Proposal" and think themselves clever to mock the idea of cannibalism?

Because I teach that to students almost every semester, and it still fools them.  Is Slate smarter than a Freshman community college student?

Inquiring minds want to know.

The Ghost of Nixon

Nixon sued the Administrator of General Services seeking to enforce an agreement he made with the GSA before he resigned. The agreement covered his personal and Presidential records. In response to this agreement Congress passed the Presidential Recordings and Materials Preservation Act. Essentially Nixon v. GSA held the Act to be constitutional and upheld its enforcement. The case is bandied about now as denying Nixon executive privilege over the records. But Nixon was trying to preserve his agreement, and the Court found Congress had overridden it. The summary of the case, at least, never mentions “executive privilege”

The privilege for an ex-president was actually decided in U.S. v. Nixon. Nixon v. GSA does, however, discuss at length the constitutionality if the PRMPA. I can find several commentaries on the case that reference “executive privilege,” but if that issue comes up as “presidential privilege”in the opinion, and is dealt with almost summarily.,  Trump’s lawyers say Nixon found ex-presidents have a strong claim on the privilege. That simply isn’t true.

In 1978 Congress passed the Presidential Records Act, making all records of the Presidency public records held by the National Archives, (as did the previous act), and giving the National Archives authority to promulgate regulations related to the act, such as the one giving Trump 30 days to respond to the decision of the current POTUS to release the records.  That law has applied to Presidents since Reagan.

Trump’s challenge (such as it is) is the first by a former President since Nixon. That’s why Nixon v GSA even gets mentioned now. But that case upheld the first law by Congress to control presidential records, and no former President has challenged the superseding PRA since its passage. The constitutional challenge by Trump is weak indeed. And a grueling legal fight? Not if the DOJ does what it’s doing in the Texas SB8 suit, and goes directly to the Supreme Court (which has accepted that appeal).

The privilege for an ex-president was actually decided in U.S. v. Nixon, as the majority said in Nixon v. GSA:

The appellant may legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege recognized in United States v. Nixon, supra. In that case, the Court held that the privilege is limited to communications "in performance of [a President's] responsibilities," 418 U.S. at 418 U. S. 711, "of his office," id. at 418 U. S. 713, and made "in the process of shaping policies and making decisions," id. at 418 U. S. 708. Of the estimated 42 million pages of documents and 880 tape recordings whose custody is at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply, at most, to the 200,000 items with which the appellant was personally familiar.

For clarity, Nixon is the appellant there.  The privilege, though, is a narrow one, and Trump is not arguing for a narrow application. Again, you get what you ask for. There are limitations that Trump is not interested in. Asking for too much will likely cost him everything.

How appropriate.

The lawyers arguing there are Constitutional issues here are doing so because there are no cases on the validity or limits of the PRA.  There are no cases that I know of, at least at the Supreme Court level, finding the acts of Congress to control and regulate Presidential records are unconstitutional. There is some dicta in Nixon v GSA that might open interesting avenues, but the Court isn’t likely to seek those out if Trump doesn’t raise them.

And so far, he hasn’t. He’s not even showing signs of understanding the possible issues.

Tuesday, October 19, 2021

"Can You Help A Brother Out?"

Abbott issued an executive order commanding all businesses in Texas to NOT require proof of vaccinations or covid testing of employees.  He also suspended, by fiat, all state laws contradicting that order.  And then he turned to the Lege to make his order law.

And the Texas Senate, the truly conservative wing of the Texas Lege, the one run by the guy who said early on old people should die for the sake of the young who needed to keep bars and restaurants open (he's elected separately by the people, not by the Senators), said:  uh, no.

Because the real clout in Texas politics is still bidness, and bidness leaned in HARD on this one.  Which is politically embarassing to Abbott, but not fatal.  It may be legally fatal, however.

So far as I know, Abbott hasn't sent his attack dog Texas AG Paxton, out to sue any business for violating his order.  Maybe because Abbott knows he'd lose in a court of law, where even the SCOT is unlikely to uphold an injunction on the basis of this order.  It's worse now, because he went to the Lege asking for back up, and the Lege said:  "No."

In legal parlance, that's legislative intent.  Legislatures act by passing laws, and in doing so they make records of hearings, deliberations, etc., all part of the legal history of the law, and useful to courts trying to parse the "intent" behind the statute.  Legislatures also act by not passing laws.  That, too, is "legislative intent."  In this case, the Texas Lege has indicated its intent NOT to pass a law banning businesses in Texas from requiring proof of vaccination for coronavirus.  

And if the Lege won't do it, what power does the Governor have to do it?  The answer is:  none.

This doesn't reverberate down to all those suits against school districts over mask mandates; but those cases will be moot (one hopes!) soon enough.  The Lege needs to meet in its next regular session and revise the statute giving the Governor all these "emergency powers."  Hopefully that will happen; actions like this indicate they might be inclined to do so.  For now, the next big question is whether the courts will find enough racial animus in the new Texas districts to throw out the new maps, with or without the gutted VRA.  There's also an interesting state suit arguing the Texas Constitution requires redistricting to occur during a regular session, which ended long before the maps were redrawn.  We'll have to wait and see whether SCOT thinks the Texas Constitution means what its plain (in this case) language says.

Treason Doth Never Prosper



Oh, dear, what can the matter be?

 That explanation didn't mollify Ryan Williams, president of the think tank, who issued a statement reading, in part: "Last Friday [i.e., September 24], I made the decision to withdraw the Claremont Institute's program [from the annual APSA meeting] this year after APSA, without explanation, moved all 10 of our panels (and our reception) to a "virtual" format. Though APSA Executive Director Steven Smith would never confirm directly, it became clear that Claremont Institute Senior Fellow John Eastman's independent role as President Donald Trump's attorney during challenges to the 2020 election was at issue."

He then added, "When we inquired for specifics, so that we might assess the safety of the rest of Claremont staff and participants in Seattle and prepare accordingly, we got no response. . . . APSA decided to cave to the mob this time, betraying a core principle of academic freedom and republicanism: reasoned debate about even the most controversial political and intellectual topics."

Slavery:  Was It Really That Bad?

Child Pornography:  Is There a Way to Eat Your Cake and Have It, Too?

Democrats:  Demons in Human Form?  Or just demons?

Noting that Claremont has doubled down in their defense of Eastman, with Williams writing in fundraising letters stating, "Under the excellent leadership of John C. Eastman, our Claremont legal team continues to be the 'point of the spear'—always arguing our cases based on originalist, natural law-based principles consistent with the Founders' Constitution, and not on 'international law' or multiculturalist ideology and 'tribalism.'" Field writes that leadership of the organization only have themselves to blame for falling out of favor.

Freedom Fries!!!!!  No damned appeasers here!

Yeah, Claremont has exceeded its shelf-life.  The end was inevitable, and now it has come.  The Eastman memo wasn't about "controversial political and intellectual topics," any more than it was "based on originalist, natural law-based principles consistent with the Founders' Constitution" (on that point, two things: a: it isn't theirs on loan to us*; b:  few of the Founders were Thomistic Roman Catholics).  Eastman was making arguments that amounted to sedition and certainly would have required the VPOTUS to violate his oath to preserve, protect, and defend the Constitution.  Trump already violated his oath of office simply by seeking out such "legal" (I use the term loosely) opinions.

Honestly, the right wing in this country is in its death throes.  How much damage it will do as it thrashes about is the only question left.


*It stopped being "theirs" at least after the 13th Amendment.  The 14th effectively rewrote it completely.  These "originalist" arguments are such bullshit.

Karma

I’ve been gaming out Trump’s possible strategy in this suit. A TRO is not the necessary prelude to an injunction. So he can seek an injunction without asking first for a TRO.

But the TRO request indicates there is a true need, a requirement for the extraordinary relief of basically deciding the case before the case can be decided.  That's why granting interlocutory relief is considered "extraordinary."  If the court provides the relief, it's a ruling that the party asking is likely to prevail at trial.  It also means the relief should be granted before any further harm is done to the interests of the moving party.

But a TRO only lasts for 10 days.  Before that time there has to be a full hearing on a temporary injunction, which can last until trial.  The National Archives will release records on November 12, unless the court orders otherwise.  So if Trump wants to delay, maybe he should file his TRO request no sooner than November 1, or as late as November 2, if he really wants to play the delay game to the hilt.  One delay, then the hope of another.  On the other hand, why not wait until November 12 to seek the TRO?  Why not lead the statute work for you, and extend the deadline by at least 10 days?

But the usual reason to ask for a TRO is because relief must be granted RIGHT NOW!  It's actually an ex parte proceeding, which means the relief can be granted without the other parties to the suit even being served yet (i.e., joined in the suit).  You aren't a party to a suit until it is filed (if you're the plaintiff) or until you are served (if you're the defendant).  A TRO indicates a serious need that cannot wait even for service of the complaint.  You can get the court to grant one with only your lawyers in the hearing.  That's also why it lasts only 10 days.  The other party(ies) need a chance to respond; they can make their arguments at the injunction hearing.  If you wait 2 weeks to seek a TRO, the court is unlikely to grant it ex parte.  It's also less likely to be persuaded this is an emergency that requires such extraordinary relief. So now you lose, and you have to go back to the same judge and seek an injunction, which the judge is probably even less inclined to countenance.  Your arguments for relief haven't gotten any stronger, and now you have a full hearing to contend with.

You also have to get it on the court's docket, and the court may not give you a hearing before November 12.  Likely they will, but you're really trying your luck on that. And if you file the motion too close to the statutory deadline, the court might feel you’re trying to force its hand. Without a court order, the documents can be released on the 12th, even if the court’s decision is pending.

This could all be moot by the time you read this.  Trump could have filed a motion for TRO as I'm typing, or before I sat down to type.  It's just telling that he didn't file one with the Complaint.  And it makes his bid to delay matters weaker and weaker as the hours and days tick by.  The closer he gets to that statutory deadline the more the courts will be inclined to think he's trying to game the system; and the less likely they will be to want to be played.  The suit is meaningless if Trump doesn't try to freeze the status quo; and the longer he takes to try that, the more the courts will be inclined to see this as gamesmanship, and even a cover-up, rather than a true concern with legal and/or constitutional principles.

Like I said, it matters how you ask, probably more than what you claim.

Why You Shouldn’t Speak Ill Of The Dead 💀

You sound like Trump. Or at least Trump-adjacent.

It’s not the best reason, but it’s good for right now.

Running Out Of Time

In April, 1974, Leon Jaworski subpoenaed Richard Nixon for the White House tapes. Nixon took the case to court. By July, the Supreme Court had ruled against him.

4 months. It can be done.

I’m hardly a Constitutional scholar, but my quick review of the Complaint didn’t impress me. For example: And one wonders how serious this suit is: If Trump can’t get a TRO (yes, first he has to ask for it), it’s game over. If he does get it, he could still lose the temporary injunction hearing; also game over. Failure to win one or both of those means the court doesn’t think Trump can prevail at trial.

So this could go very rapidly. Without a TRO or TI, it’s over by November 12. Period. Analyses like this:
Frankly ignore that little point. Besides, the Mazars argument is not as strong as the pleadings claim it is (never rely on the pleadings for the state of the law):
So that's not the powerful "delay" argument Polentz (and others) think it is.  Worse still is the argument that the Presidential Records Act is unconstitutional if Trump can't exert executive privilege now that he's a private citizen.  The Nixon v. GSA case that Polentz mentions in her Twitter thread is arguably about that point, but it doesn't give ex-Presidents unbridled control of official documents they left behind when they stopped being official, and it came before the PRA, which was passed in part as a response to the GSA case.

The quality of the argument from Trump’s lawyers is no more impressive than this.

The other flaw in Polentz’ argument is that Trump is no longer in charge of the DOJ. The delays he won as POTUS are no longer available to him, not if the DOJ pushes for a resolution. They can actually make things move very rapidly through the courts if they choose to. Mostly Polentz is pushing the narrative that Trump wins because courts are slow. But they don’t have to be; and as 60 filed lawsuits showed, they can decide matters, in several courtrooms, in very short order. That delay narrative, in other words, is not a legal analysis.
It really does matter not just what you argue, but how. The delay narrative is not Trump’s superpower. If he can’t get some kind of restraint by November 12, he’s SOL. And he’s going to have to start with a motion pretty soon.  That can be filed; whether he can persuade a court he's like to prevail on the merits, is another matter.  This case doesn't just involve the issue of Trump's privilege claims, but the issue of an investigation of violations of law.  Executive privilege doesn't protect that. EOD.

Monday, October 18, 2021

Translation:

He screwed himself blind and he doesn’t even know it.

Why People Need To A) Get Vaccinated; B) Still Wear A Mask

The covid infection, in other words, just made things worse.

Requiescat in pace.

Blame The Boomers

The sentiment is not, as Tom Nichols seems to think, new. I've told the story before, of having leather sandals with leather "peace signs" attached to them as a decoration. Turns out that symbol was invented by a British anti-nukes group in the '50's, but in the early '70's there was no Google where we could find that information, and I still remember the mother of some girl (my contemporary) expressing concern to me that my peace symbols were, in fact, Satanic.  Because the rumor was they dated back centuries, and everything old, especially in that Baptist-besotted town, was likely "foreign" (i.e., not American in origin) and evil (if not Papist, then Satanist, which was just as bad).

Don't get me started on the cranks who hated Hallowe'en. They at least had something with a much longer history to complain of, although the practice of going door to door begging candy isn't that much older than the peace sign.  Again, because we are familiar with it, we think it's been that way forever.  Students of history, most of us aren't; especially "social" history.

The reason the American Legion doesn't shut off the streets anymore for kids to parade is not because of religious cranks or that "so many of [us] lost [our] minds," it's because the Boomers passed into adulthood.  The huge demographic bulge in the python of American society was real. I  grew up in a neighborhood populated with kids my age, or near enough for dammit.  I could step outside and play all day long, with no traffic on my residential street (except at 8 and 5), and plenty of kids to play with.  We could have pick up baseball games, football games, kick-the-can, etc.  My daughter is almost 30; she never knew such neighborhoods. The Boom passed her by.

Hallowe'en was when the kids in my neighorhood owned the streets.  The rumors about razor blades in apples and poisoned candy didn't start until 1974 (although a woman who thought the kids coming to her house were too old, so she gave them dog biscuits, ant poison, and steel wool, in 1964, so some stories of such horrors were around when I was young).  We happily accepted caramel apples and popcorn balls; indeed, rumors flew around the streets of where to get them, but they were always several streets away and had "run out" (the rumors said) by the time you heard where to go.  But the best part of Hallowe'en was the freedom to be out with your friends, in costume, on the streets at night, ringing doorbells and getting candy. 

For any number of complex reasons, from the flagging Baby Boom to urban legends about horrors in the apples, those days are gone.  A lot of it has to do with the homogenous neighborhoods of the post-war era, where the adults were all basically of the same generation, and their kids were, too, was a lovely aberration in American history and society; and it's gone, as inevitably it must be.  People came home from that war, settled in neighborhoods as newlyweds and new parents, and then stayed put for 50 or 60 years.  Their kids grew up, moved on, and settled in neighborhoods with lots of other people still there, the neighborhoods not necessarily so new and fresh anymore.  Suburbia now stretches into exurbia, but the suburbs of the '60's are a thing of memory, nothing more.   Things change; traditions move on; customs and practices alter. Trying to blame it on somebody, or wishing it back into existence, is a mug's game.

(And the irony of that hand-written crank is that handing out "free" candy on Hallowe'en is quintessentially American.)

Changing The Narrative

The panel on "Press The Meat" was, miraculously, actually worth paying attention to this weekend. John Podhoretz has not moved in his conservatism, but he today sounds almost like a liberal. The topic was Biden's "agenda" and his failure to get it passed already, and how the Democrats are therefore doomed.  Podhoretz pointed out LBJ had a 155 seat margin in the House in 1965, and 69 Senators (if the numbers are off, blame my memory).  And LBJ passed 79 major pieces of legislation in one year.

Podhoretz also point out Biden has 3, 2, 5, seats past majority in the House (he was mockingly making a valid point), and a 50/50 Senate at best.  The times, they have been a changin'.

Amy Cook pointed out many voters are more interested in police reform (remember the George Floyd protests?  That wasn't about daycare or bridges.)  than infrastructure. It made me realize (not for the first time) that Bernie Sanders is far more interested in economic issues than social ones; and AOC didn't wear a dress to the Met  Gala emblazoned "DEFUND THE POLICE!"  There is a lot of truth in what Amy Cook says, but all the pundits and poo-bahs insist the Dems must build bridges and fund daycare, or they'll lose their voters.

Sorta like this:

Biden's approval ratings are down and he's taking a hard hit among the very voters Democrats need to win in 2022 and 2024. As NBC News reported this week, "A Pew Research Center poll found that from July to September, Biden's approval rating fell by 18 points among Black voters, 16 points among Hispanics and 12 points among women." His approval is down 13 points among Democratic voters. As Cleve Wootsen writes in the Washington Post, the "Black and other minority voters who helped fuel Biden's victory" have started to "see what they consider unfulfilled promises and dwindling hope for meaningful change."

Neither Cook nor Podhoretz was trying to say the world of Biden is coming to an end, in other words; but Ms. Cook was definitely trying to inject into the narrative a little reality:  that it isn't the failure to extend the internet which has black voters disappointed.  Bernie Sanders and AOC, not surprisingly, blame this disappointment on the press not selling the infrastructure package sufficiently.

But even just discussing this topic:
is not coming close to the topics that led people to fill the streets after George Floyd was murdered; or why, it seems obvious, so many black voters supported Joe Biden.

Everybody knows police reform leads to cries of "LAW 'N' ORDER!" and "DEFUND THE POLICE!  BE AFRAID, BE VERY AFRAID!" That's what everyone in DC is afraid of, as much as some (AOC, Bernie, et al.) are really only concerned with economic issue.  But there's a good argument police reform is more what the voters voted for, than an Infrastructure Week that actually ends in an accomplishment.

Is nobody noticing that people are voting with their paychecks right now?  It is Striketober, after all.  And they aren't voting for more government spending on roads and internet access?  Or are the pundits and the politicians locked in an eternal damned embrace where they only speak to each other and stand amazed every two years when the electorate has another narrative in mind, and pulls out the national blue pencil to their manuscript?

And no, I'm not sure there are any "good" Republicans anymore.

Besides:
At least somebody is trying to change the narrative.

Ronald Reagan Was Lost To Alzheimer’s

It was obvious to reporters who interviewed him in the last years of his term.

Of course, we’d have to amend the Constitution. Or somehow make the implementation of the 25th Amendment actually possible.

But the doctor is right. There are consequences of extended lifespans that we as a society need to face. Preferably before it’s a crisis.

Stepping Out For Popcorn

It would backfire on the GOP, too.

The House would get NOTHING done.  Trump would never figure out how to call the House to order, much less bring a bill to the floor.  He'd had to farm everything out to other House members, and the minute they start squabbling over who REALLY is in charge under Trump, the bloodletting would be epic.

And ugly.

You know, like this:
"I don't know that," Cassidy replied. "President Trump is the first president in the Republican side at least to lose the House, the Senate and the presidency in four years."

"Elections are about winning," he added.

So let's put him in charge of the House as Speaker?  Like I say, Trump would be an epic failure.  Besides, I think Trump is going to be very busy.

Trump has been ordered by Justice Doris Gonzalez of the Bronx supreme court to give a videotaped deposition at Trump Tower on Monday that will be used as part of a "lawsuit brought by a group of demonstrators who said his security guard assaulted them during a 2015 demonstration outside Trump Tower," the Guardian has reported.

Speaking with MSNBC host Alex Witt, attorney and legal analyst Tali Farhadian stated that answers Trump gives about how the Trump Organization operates could become fodder for other investigations.

"It looks like this deposition is a go," host Witt began. "What do you think lawyers will ask Donald Trump?"

"Well, the question at the heart of this case is whether Donald Trump directed his security to assault the protesters who have brought this lawsuit," Farhadian replied before noting, "And, you know, it's interesting because it's a low-profile case from the presidential campaign, but it does represent the first time that Donald Trump is going to be asked a question like that under oath and I think that a world of lawyers, prosecutors, investigators, are going to be listening for that answer."

"Okay, so when you say whether the president directed them to rough these people up, how could that be verbally expressed?" host Witt pressed. "Because we've heard Donald Trump saying himself, in rallies over the years, he would like to knock somebody out, or he's going to rough somebody up. Is that the kind of thing that could get him into trouble legally here? Would it have to be 'I want you to beat them up'? How is that going to work, the interpretation of what he said?"

"Well, the protesters who have sued him are going to want to use the kind of evidence that you've just described, Alex, where we can impute to him the direction of his organization based on the stuff that he's said," the attorney explained. "What I think they would get into in the deposition is more trying to understand, how does he run his company, how regularly does he direct his security to do one thing or another? And those questions about how he runs his organization, what kind of manager he is, are really swirling around in a lot of the litigations and lawsuits that involve him."

"So depending on what he says and how he says it, come tomorrow, is there any way he could get into bigger trouble than where it stands right now?" the MSNBC host asked.

"Yes," Farhadian confirmed. "I think that, if he does in fact testify under oath, you know, give the deposition tomorrow, where the judge has said at the extremes he could have until the end of the month, then his next strategy, I anticipate, will be to try to keep whatever he said hidden, to keep it sealed and not disclosed, because as I said earlier, whatever he says there about how he directed his security could be really interesting to the people who want to know how else he runs his affairs."

"You know, Alex, I was just thinking, it would probably take us all afternoon to list all of the litigations and investigations that involve Donald trump right now, ranging from January 6 to the defamation suits by E. Jean Carroll and Summer Zervos," she added.

Let me just point out that how Trump runs his company is not covered by executive privilege.  It might fall under the 5th Amendment, at this point. I also understand Trump is an absolute disaster in depositions; and not in any way that ever helps him.


I’ll be back with the popcorn 🍿.

Sunday, October 17, 2021

How The GOP Became A Trumpian Cult Is Indeed A Mystery

Trumpism is, of course, less an idea or set of principles than it is a cult of personality and series of angry impulses. But even the ugliest movements have their pseudo-philosophers and their rationalizers.

Funny, I don't remember Bill Kristol being so upset when Newt Gingrich invited Rush Limbaugh to the Capitol building as an honored guest as the new Speaker began his first term of enacting his Contract on America.  And Limbaugh was as much of a huckster and a showman, and a racist at the heart of his own cult of personality, as Trump.  Yet Gingrich publicly gave Limbaugh credit for the victory the GOP attained that year.  Of course it wasn't long before Gingrich left Congress in disgrace, so there's more than one lesson from history here.

Mr. Kristol wasn't all that upset with  the hagiography of Ronald Reagan, either.  A man who has only lately fallen from attention (if not grace) in the GOP. (We'll come back to St. Ronnie in a minute.)

And what was the adulation of William F. Buckley if not a cult of personality?  The man never accomplished anything except to start the racist National Review, and yet he was upheld for decades as the very model of a modern (mossbacked, reactionary, proto-medieval) conservative (racist, too; that was always a key factor.  Nelson Rockefeller was not quite so openly racist, so he was a "liberal" Republican.  Well, until Attica.  Then he was just a Republican, again.).

Conservatism in America always meant racist.  What else were you trying to conserve after Truman integrated the Armed Forces, except the racist way of American life?

Frankly, anybody who doesn't connect this cult of personality all the way back to Goldwater ("Extremism in the defense of liberty is no vice!" was not exactly a nuanced policy statement.) is simply not serious about their complaints with the GOP now. 

And this where Claremont comes in: It is attempting to put a veneer of intellectual respectability on some of the darkest impulses of the right. It’s not at all surprising that Claremont was at the center of the attempt to overthrow the 2020 election.

I can't tell if the "darkest impulses of the right" are too dark for Mr. Kristol, or just too public and impossible to explain away.  That "veneer of intellectual respectability" on those impulses summarizes Mr. Buckley's work quite nicely.  Honestly, none of what Mr. Kristol complains about sounds much different than what I heard in opposition to the civil rights movement and to Dr. King before he was killed and, no longer being a threat to the "natural" order, became a secular saint.  This quote could have been found in a time capsule buried in 1963, proving that the more things change, the more they stay the same:

“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 the 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!”

The very essense of our republican form of government was threatened by the Civil Rights Act and the Voting Rights Act.  Thank goodness CJ Roberts (now the "moderate" on the court) showed us the error of our national ways with the evisceration of the VRA.  In the name of the Constitution, we cannot enable the 15th Amendment to the Constitution.  (There is evidence now that poor people were instrumental in tossing Trump out of office, which makes theses issues ones of class as well as race.  One source of political power is as upsetting as the other to the GOP; and always has been. America, of course, is not a class based society nor a race-based one.  And I am Marie of Romania.) Because, you know: reasons.

Mr. Kristol is concerned with the Claremont Institute, which he assures us "wasn't always like this:"

Through its various publications, fellowships and seminars, Claremont was once the center of what was known as the "West Coast Straussian" school of thought founded by scholar Harry Jaffa.

" 'West Coast Straussian' school of thought"? Speaking of a veneer of intellectual respectability.

But in recent years, Claremont has moved away from its intellectual roots. Its recent list of fellows includes some serious conservative thinkers, but also Fox News host Laura Ingraham, Ben Shapiro, radio host Mark Levin, and Trumpian activists like Charlie Kirk and Mollie Hemingway.

I recognize the change in style; but not in content.  Granted, this is ugly:

Claremont’s drift into racism or authoritarianism has similarly not been subtle.

As Field has noted, Claremont "knowingly provided cover to, and made common cause with, an alleged white supremacist named Darren J. Beattie." Beattie is a former White House staffer who had been fired for consorting with white supremacists. As the attack on the Capitol unfolded on Jan. 6, Beattie sent out a stream of tweets directed at various African Americans — including Sen. Tim Scott, S.C., and Kay Cole James, the president of the conservative Heritage Foundation — telling them they now had to "learn their place" and 'take a knee to MAGA." 

Then again, Ronald Reagan in Philadelphia, Mississippi on August 3, 1980, talking about "state's rights" as he announced his campaign for the White House, wasn't all that subtle; nor all that far removed from Mr. Beattie.  Mr. Reagan never told blacks to "learn their place," but he did talk extensively about "welfare queens" driving up in Cadillacs to pick up their government checks.  He was a smooth liar long before Mr. Trump was recognized as one; yet no one thinks of Reagan as a racist.  He was too nice, donchaknow?

And granted, this sounds like the John Birch Society and the White Citizen's Council had a lovechild:

Earlier this year, Claremont’s online magazine, The American Mind, published a lengthy piece that declared that there was only one "authentic America" and that others who voted against Trump "do not believe in, live by, or even like the principles, traditions, and ideals that until recently defined America as a nation and as a people."
"It is not obvious what we should call these citizen-aliens," wrote Glenn Ellmers, "these non-American Americans; but they are something else.'

 Pretty sure I heard similar responses to the VRA, back in the day.  I mean, it's not like the leopard can change his spots, can he?

The GOP spent half a century creating this Frankensteinian creature from stolen body parts.  One would think they'd have learned the lesson of Frankenstein, and at least accepted their responsibility.  Instead they are, embodying the struggle within Frankenstein in the latter half of the novel, divided over whether to destroy the creature (they can't, anymore than he could his), or to create a mate for it, inhuman and despised thing that it is.

And after they learn that lesson (or just read the novel), maybe we can get FoxNews to explain what happened when the Grinch stole Christmas.

I know, I know; I ask entirely too much.  Self-awareness and self-reflection are just not traits to be commonly expected.

Speaking Of "The Idolatry of Totalism"

As we were:

"I think we make a mistake focusing this all on Donald Trump as though he is -- I don't know, [Marvel comic's] Magneto and some incredible supervillain that has changed the nature and temperature of the United States. He has just been an effective vessel," Stewart replied.

"Again, he is not singing new songs," Stewart continued. "This is something -- he is maybe singing them better than [Barry] Goldwater. But I think it's a mistake to focus it all on this one individual and not to focus it more on the idea that power is its own reward, whether it be in the financial industry or in government. Power doesn't cede itself. Unless we can figure out a better way to balance that power for, you know -- for workers and voters and different groups, we will be vulnerable."

"I don't know that autocracy is purely the domain of Donald Trump," he added.

Totalism is not just a problem of bad theology. 

Saturday, October 16, 2021

I Get E-Mails Like This, Too

My favorites are of the “Do you just not care anymore?” variety. Trying to shame people into giving money is on par with declaring your supporters just won’t vote if they don’t get their way. The wisdom of it escapes me.

Doom! Doom! Doom! Doom!

Sounds dreadful and frightening, doesn’t it? “An organized and international propaganda operation”! Horrors! Whatever shall we do? Who will save us?

But click through to the original AP tweet, and then to the AP article. There you will learn two things: 1) there was a protest in Italy over their “green card” proof of vaccination. 2) The picture being circulated allegedly showing the protesters is actually a photo from a Swiss street festival from 2018.

I’m pretty sure the same thing happened with another photo recently. A photo claimed to show one thing was something else entirely, from years earlier. Oddly, no international conspiracy was shown then. But now we know that’s what it must be, because someone on Twitter said so.

To recap: there was a “large” protest in Italy (AP doesn’t specify how large). There was a photo erroneously attached to this story. Of course, this is America: one place looks just like another to us, especially foreign places. But the story involves Italy, so clearly an international conspiracy is involved, not just some clowns on 4chan.

And you read it on the internet, so it must be true!

I.E., The 5th Circuit Doesn’t Want…

...to overrule SB 8. I mean, they REALLY don't want to. And any excuse not to do so, is good enough. Who needs substantive analysis when you’ve reached your conclusion without it?

One seldom sees it so blatantly, though. On the other hand, circuit courts don’t have the convenience of a “shadow docket.”

Or What?

You'll withhold all your voters in 2022 and 2024?  You'll threaten democracy itself, and destroy the republic with the power of your second-hand tweets? You'll hold your breath until your face turns blue?

Pointing and laughing are now clearly in order.  This is absurd.

There is no provision in law for a "do-over" nor for declaring the loser the winner (even Bush v. Gore didn't declare a winner, it just stopped the vote count.  The court's reading of the Electoral Vote Count Act made that decision a necessity.  Trump is asking for the Court to instate him as POTUS.  They've already declined to get involved in this nonsense.  They aren't going to change their minds now.).  This is beyond farcical.

Besides, as goes Pima County, so goes the nation?  Huh?  His allegations are groundless, as they have been through 60 lawsuits.  But now he says Pima County is suspect, and that's enough to make him the winner?  This is a man who refuses to acknowledge he lost.  The rest of us (i.e., the majority of the country), don't have to sustain him in his delusions. And since he couldn’t get what he wanted from the courts, now he just demands it from…who?

Who is this demand addressed to?  Pima County?  The State of Arizona?  Congress?  The world? How clownish and pathetic can you get?

Pointing and laughing, as I say, is the only reasonable response.

The Conspiracy Is Working!

Any day now Trump is going to blame what he said on Democrats. Don't we all? Finally somebody is giving that story the framing it deserves. Thank you, North Carolina, for making everybody forget about Louie Gohmert. Yeah, I've mentioned it already, but it bears repeating. Especially in this context: I like it when FoxNews does the work for us:

A Tale Of Two Outcomes

The GOP and its billionaire donors are going to do Trump’s bidding, and we’re all doomed. 

Or:
His hand-picked candidates are losing the money race, which means they aren’t getting the support of the GOP’s billionaire donors. Which means, too, their chances of winning are diminished. Which means we may not be doomed after all.

But what fun is that?

Friday, October 15, 2021

"Who's That Knocking At My Door?"

Alright, first thing:  "audit" no longer sounds serious enough, so we have to intensify it.  "Forensic audit" is the phrase of choice. But what does it mean?

But in the push for forensic audits across the state, not one person has given a clear description of what they mean and want, said Lake County’s Republican supervisor of elections, Alan Hays.

“There’s no such thing I’ve found in Florida election code,” Hays said. “We have and always will continue to administer elections in this office in complete compliance with Florida statutes and the rules of the Division of Elections of the Department of State.”

Here's the other thing, peculiar to Florida, but then every state is peculiar in its own way:

Mark Andersen, the Republican elections supervisor in Bay County in the Florida Panhandle, said he spent two hours on a Zoom call with representatives from Defend Florida explaining how his office makes sure vote counts are accurate. He said the group didn’t know that his county already audits every ballot. 

I've seen the same thing at school board hearings.  School boards don't set school curriculum (it's not their job, and most of that is set by the Texas Education Agency), and they don't decide what books wind up in the school libraries (challenged books are reviewed by an ad hoc committee, established by the district administration staff).  But people come to school board meetings now to rail against books and "CRT," which it is illegal to teach in Texas now.  One notable event was the woman recently who ranted for her three minutes, then declared she would be a candidate for the board in the next election, where presumably she would straighten things out.  Most of what school boards do is approve budgets, approve bonds for new school buildings, and recognize staff and students in the district.  It's partly dull work about finances, or ceremonial work honoring students, teachers, etc.  It's also all in the open; by the actions of the Texas Open Meetings Act, the board has a "meeting" whenever more than three members are talking together, and only personnel matters and things allowed as exemptions under that law, can be discussed in closed meetings.  So everything the board does, it does in a public meeting.  But school board meetings are notoriously dull, so nobody attends them.

Like the lady who declared herself a candidate, and then left.  She'd come to rant; she did; she went home. What the board does, is doing, has done, needs to do?  She doesn't care.  She wants to get on the board so she can rant freely.  She doesn't know what the board does; she doesn't want to know.  If she gets elected, she's going to be very bored.  This is one reason all this brouhaha is going to fizzle out, sooner or later. Reality doesn't bend to somebody's will, no matter how much they want it to.

So what's going on in Florida?

 Debbie Horgan, 64, approached the beige house and rapped her knuckles against the door.

A few minutes later, she returned to an SUV idling in the street.

“Another no answer,” she said to the driver, 61-year-old Kevin May. “I’m willing to bet not everyone lives here.”

Yup; Boomers with too much time on their hands, too much Facebook in their lives, driving door to door seeking out "voters" to see if they still live there.  If no one answers, it's presumptive proof they don't; right? If these clowns came to my door, I probably wouldn't answer.  Is that proof I don't live there?  Or does it mean I'm at the grocery store with my wife?

Here’s how it works: Volunteers, like Horgan or Jordan, visit an address on a list. (They weren’t sure how the homes were picked, saying Defend Florida [the group conducted this snipe hunt] may have an algorithm.) They’re trained to ask the names of the residents and whether they voted. They cross-reference that information against voter records. They don’t ask who anyone voted for.

May said people seem to be blowing off real concerns about bloated voter rolls and other anomalies discovered by canvassers and number crunchers. They’re not looking to undo the results of 2020, he said, but ensure future elections are secure.

In recent weeks, Pasco is one of the locales they’ve searched for fraud, even though this mid-sized county of 550,000 has become the cradle of Republican power in Florida. The state’s Senate President Wilton Simpson hails from Trilby. Three of the Legislature’s last five House speakers called Pasco County home at one time. Its sheriff, Chris Nocco, is one of the most politically connected law enforcement officials in the state.

It’s here, a county Trump won by a wider margin than any presidential candidate since Ronald Reagan, that Jordan said he’s found his “fair share of ghost voters” — a term he uses to describe people who do not appear to live at the address at which they’re registered. They’re also looking for people who say they didn’t vote when records indicate they did, a sign, they believe, that someone may have filled out a mail-in ballot for them.

If they find a discrepancy, they’ll pass it along and someone may write up an “affidavit.” Defend Florida says it has collected thousands so far. Election supervisors say they haven’t seen the evidence. The leader of Defend Florida, Caroline Wetherington, didn’t respond to a voicemail and text message from the Times.

 I do wonder what the problem with "bloated voter rolls" is, actually.  If those people aren't voting (and many a registered voter seldom does vote), so what?  Hard to commit fraud if you don't do anything at all with the franchise.  But these efforts, and the affidavits they produce (another conjuring word; it sounds official, so it must be powerful!), are a joke, because:

These canvassing efforts fail to consider that people change addresses all the time, said Gary King, a political science professor and director of the Institute for Quantitative Social Science at Harvard University. They move for jobs, go to college, transfer assisted living facilities, leave their parents’ home, get evicted, become homeless, retire to live with their kids or die. Voter rolls don’t always keep up, King said, but it doesn’t suggest anything nefarious.

“Voter rolls definitely have mistakes,” King said. “It’s human beings collecting data.”

King said there are serious efforts to study voter fraud, which does happen occasionally on a small scale. But fraud to the degree being alleged would mean a massive conspiracy involving hundreds of elections workers across the state’s decentralized election system. There’s no reason to believe that sending amateur surveyors to check voter addresses is a way to root it out, he said.

“If you have chest pains, you don’t just grab a butter knife,” King said. “You need experts to do survey research just as much as heart surgery. It’s really hard to get it right, and it’s so easy to completely mess it up.”

My parents moved from their house of 50+ years to an assisted living facility; and then moved to Houston.  So far as I know, they never changed their voter registration.  But if they had, I don't know what the process is for the next county to notify the old county of the change (registration is handled by county clerks). Maybe there is one, maybe there isn't.  My daughter's voter registration finally lapsed because she doesn't live in Texas anymore.  Probably theirs did, too, after a time.  But it would have been conceivable that they were registered in two counties at once, for a time.  I mention this also because I still occassionally get letters from people wondering if my father, now dead 5 years, wants to sell the property at the address of the facility they moved to before moving to Houston.  I don't expect government record keeping to be much better than what private businesses come up with.

So was that evidence of fraud?  Of course not.  Indeed, imagining a vote fraud conspiracy across all 254 Texas counties (or even five of them) is ludicrous in the extreme.  But this goes back to the previous post about conspiracy theorists:  these people are, at least slightly, psycopathic and narcisisstic.  If anything they've been given license by the Pscyopath and Narcisssist in chief we put in the Oval Office for four years.

But that doesn't mean they know what they're talking about, or that they're taking over the country.  Even Florida isn't interested in a "forensic audit."  Even the Texas Legislature is not jumping at the chance to give Greg Abbott an audit of five counties.  I'm not sure this tactic is going anywhere, really.

When Pinellas County lawmakers gathered at St. Petersburg College’s Seminole Campus on Sept. 9, Defend Florida was there. A speaker from the group, Cathi Chamberlain, asserted that their members had been canvassing and identified suspicious voters. Chamberlain said it was evidence the state needed a forensic audit, and she called out Speaker Sprowls for saying that the election went well.

“The (Republican National Committee) wants us to ignore what we have seen,” Chamberlain said. “We will not.”

But when the Pinellas County Supervisor of Elections office asked in an email to see evidence of these suspicious voters, Chamberlain didn’t reply to the email. She told the Times it’s because she wanted a personal meeting with the supervisor’s office.

Sen. Ed Hooper, R-Clearwater, attended the Sept. 9 meeting. This month, at a Senate committee hearing, Hooper told Lee, the secretary of state, he was hearing from a lot of constituents “certain that our election process needs a forensic audit and that elections were in turmoil.”

Lawmakers could debate the need for an audit when they convene for their annual 60-day legislative session in January. It’s unclear if they will. The sponsor of the bill ordering an audit, State Rep. Anthony Sabatini, a Howey-in-the-Hills Republican, was relegated by Sprowls to an office in the Capitol’s basement.

Even the most conservative lawmakers are unwilling to support an audit. Sen. Dennis Baxley, the chairman of the Senate elections committee, said he has had conversations with people concerned about the 2020 election but wasn’t sure it would lead to any changes in state law.

“We take what they tell us and put it in the pot, and we’ll stir it around and look through all of it and see what comes out,” Baxley said.

A Defend Florida leader boasted in Telegram that the group had a two-hour meeting with Republican Rep. Erin Grall of Vero Beach, the chairwoman of the House judiciary committee and a member of the elections committee. They called Grall an “ally of the people” and speculated she would connect them to other influential lawmakers.

Grall confirmed that she met with the group and took interest in their concerns. But a forensic audit, “that’s not something I’m pursuing with them at all,” she said.

Asked his thoughts on the calls for an audit, Sen. Doug Broxson, a Pensacola Republican on the elections committee, sighed deeply and paused for a solid 10 seconds.

“If there was a problem, we’re 10 months past the election,” Broxson said. “Don’t you think some of that would have seeped out by now?”

That's the litmus test of a conspiracy:  three can keep a secret, if two of them are dead.

So how are these conspiracies so successful in their secrecy? 

Growing The Grand Old Party


According to NPR White House correspondent Scott Detrow, Biden on Friday travelled to a daycare center in Hartford, Connecticut to promote childcare plans that are part of his "Build Back Better" agenda.

While there, he greeted several children at a playground, only to be interrupted at one point by Trump supporters who were yelling at him from across the street.

As recounted by Voice of America News reporter Patsy Widakuswara, "at one point Biden put a twisty blue tube toy on his head" while meeting with the children and "as this happened you could clearly hear Trump supporters across the street yelling 'traitor' and "f*ck Joe Biden."