Category Archives: Articles

What Trump Would Do

May 13, 2024 – 9:30 am

Time badgered Trump into answering its questions, producing some very disturbing quotes.

For some while now there have been reasons to worry about a Trump second term moving America towards authoritarianism: mostly how his first administration ended and the plans various Trump-aligned policy groups have put forward.

Until recently, though, Trump himself had said little to directly validate those worries, beyond occasional threats to “go after” the people he thinks have done him wrong. Mostly that’s because he’s been preoccupied with other topics: complaining about how persecuted he is, lying about Joe Biden and the Biden administration, painting a false rosy picture of how wonderful things were four years ago, and claiming that none of the world’s current problems would exist if he were still president. For the most part, that last point short-circuits any attempt to talk about his future policies: Why should he have to tell us how he would handle Ukraine or Gaza when those problems wouldn’t exist if he were president?

That changed with the publication of Time magazine’s Trump interview and the summary article based on it.

How to interview Trump. Interviewing Donald Trump presents unique challenges, because he won’t simply answer questions. To Trump, a question is an invitation to go on a long ramble which may or may not have anything to do with what he was asked. Along the way he will launch attacks, invent stories, exaggerate, make false insinuations, and sometimes lie outright.

In a live TV interview, this is a journalistic disaster. If you ignore all his false claims, you’re letting him use your platform to spread misinformation to your viewers. But if you challenge him, which false statement do you pick, understanding that you’ll probably never get back to all the others? Meanwhile, he hasn’t answered your question.

Time’s National Politics Reporter Eric Cortellessa took advantage of the print-media format to implement a unique strategy: He let Trump ramble, fact-checked in a separate article, kept returning to his questions, and then wrote a summary article focused on the answers to his questions. If you don’t read the transcript of the interview, you never see all the misinformation.

For example, the interview starts like this:

Let’s start with Day One: January 20, 2025. You have said that you will take a suite of aggressive actions on the border and on immigration—

Donald Trump: Yes.

You have vowed to—

Trump: And on energy. 

Yes, yes. And we’ll come to that, certainly. You have vowed to launch the largest deportation operation in American history. Your advisors say that includes—

Trump: Because we have no choice. I don’t believe this is sustainable for a country, what’s happening to us, with probably 15 million and maybe as many as 20 million by the time Biden’s out. Twenty million people, many of them from jails, many of them from prisons, many of them from mental institutions. I mean, you see what’s going on in Venezuela and other countries. They’re becoming a lot safer.

Well, let’s just talk—so you have said you’re gonna do this massive deportation operation. I want to know specifically how you plan to do that.

Trump: So if you look back into the 1950s, Dwight Eisenhower, he’s not known for that, you know, you don’t think of him that way. Because you see, Ike, but Dwight Eisenhower was very big on illegal immigration not coming into our country. And he did a massive deportation of people. He was doing it for a long time. He got very proficient at it. He was bringing them just to the other side of the border. And they would be back in the country within a matter of days. And then he started bringing them 3,000 miles away—

What’s your plan, sir? 

But what shows up in the summary article is just the eventual answer:

To carry out a deportation operation designed to remove more than 11 million people from the country, Trump told me, he would be willing to build migrant detention camps and deploy the U.S. military, both at the border and inland.

That answer, if you read the transcript, comes wrapped in a lot of fantasies: Trump doesn’t think the camps will be necessary, because the deportation operation will function smoothly and get people out quickly. He expects local police to do most of the work, because so many migrants are criminals that police “know by name”. (The statistics showing that there is no migrant crime wave are “fake news”.) The Posse Comitatus Act (which sharply limits the use of the US military inside the country) won’t constrain him because “these aren’t civilians. … This is an invasion of our country.”

If you accept all of Trump’s fantasies, he seems to be saying that Cortellessa is worrying about nothing: no detention camps, no military involvement, no long delays as courts decide the constitutionality of his plans. He’ll just collect the 15-20 million people he thinks are in the country illegally and ship them out (to somewhere) without incident.

So from the MAGA point of view, this is a hostile interview that results in a slanted article. But my own point of view is similar to Cortellessa’s: Trump’s plans often don’t go smoothly, and when they get blocked, he doesn’t calmly accept defeat. Take, for example, his Mexican wall: When Congress wouldn’t fund it, he shut down the government. And when that didn’t work, he declared a state of emergency that allowed him to take money from the defense budget. How far he’s willing to go when things don’t work out is a question well worth asking.

The answers. Contellessa’s summary of his interview continues:

He would let red states monitor women’s pregnancies and prosecute those who violate abortion bans. He would, at his personal discretion, withhold funds appropriated by Congress, according to top advisers. He would be willing to fire a U.S. Attorney who doesn’t carry out his order to prosecute someone, breaking with a tradition of independent law enforcement that dates from America’s founding. He is weighing pardons for every one of his supporters accused of attacking the U.S. Capitol on Jan. 6, 2021, more than 800 of whom have pleaded guilty or been convicted by a jury. He might not come to the aid of an attacked ally in Europe or Asia if he felt that country wasn’t paying enough for its own defense. He would gut the U.S. civil service, deploy the National Guard to American cities as he sees fit, close the White House pandemic-preparedness office, and staff his Administration with acolytes who back his false assertion that the 2020 election was stolen.

Each one of those sentences is the result of a back-and-forth similar to the one about migrant detention camps. Trump was especially cagey about abortion, saying that it wasn’t a federal matter any more, now that the Supreme Court has moved it to the states. He refused to discuss the possibility of vetoing a federal abortion ban, saying that it wouldn’t happen because it would need 60 votes to pass the Senate. (Contellessa doesn’t raise the possibility that a Republican Senate majority might do away with the filibuster precisely so that it could ban abortion.)

Contellessa then focused in on whether there was anything states couldn’t do, and Trump’s reluctant answer was no. Monitor women’s pregnancies to make sure they weren’t getting abortions? “I think they might do that. Again, you’ll have to speak to the individual states.” He dodged an issue he will have to address: how the federal government regulates the abortion drug mifepristone. He said he would have a statement out about that in the next week, but in the follow-up two weeks later that statement hadn’t appeared. (It still hasn’t.) And he refused to say how he planned to vote on Florida’s upcoming referendum about its six-week abortion ban.

His comment on being a dictator only on his first day? A joke. (Nobody has a sense of humor any more.) And Trump denied that he would seek to change the two-term limit. “I wouldn’t be in favor of it at all. I intend to serve four years and do a great job.”

He sees “a definite anti-white feeling in this country” that is “very unfair”.

Transactional government. Something Contellessa didn’t cover is Trump’s very wide-open notion of transactional government. Thursday (after the Time interview) the WaPo published an article about his meeting with oil executives at Mar-a-Lago.

As Donald Trump sat with some of the country’s top oil executives at his Mar-a-Lago Club last month, one executive complained about how they continued to face burdensome environmental regulations despite spending $400 million to lobby the Biden administration in the last year.

Trump’s response stunned several of the executives in the room overlooking the ocean: You all are wealthy enough, he said, that you should raise $1 billion to return me to the White House. At the dinner, he vowed to immediately reverse dozens of President Biden’s environmental rules and policies and stop new ones from being enacted, according to people with knowledge of the meeting, who spoke on the condition of anonymity to describe a private conversation.

Giving $1 billion would be a “deal,” Trump said, because of the taxation and regulation they would avoid thanks to him

This is far from the only example. In March, Trump abruptly reversed himself on banning TikTok. The change happened shortly after a meeting with Jeff Yass, a Trump donor who owns billions in TikTok-related stock. During his first administration, Amazon lost a valuable defense contract because Trump thought Jeff Bezos’ Washington Post wasn’t covering him favorably enough.

Summing up. It’s easy to take these issues one-by-one and feel like they wouldn’t be that big a deal. He’ll tell the Justice Department who to prosecute. He’ll deport at least 11 million people, some of whom have been in the country for decades. Ukraine may fall, leaving NATO countries to wonder whether the US will support them against Russia. He’ll establish that committing violence in his name is OK; you can count on a pardon. The civil service will lose its independence, making the federal government one big political machine. He’ll use emergency powers to circumvent Congress’ power of the purse. Companies that want a break on regulations just need to do something in return.

Now picture it all happening at once. The America we’re describing is a very different and much darker place than any we have lived in so far.

By weeklysift | Tagged | Comments (12)

The Supreme Court is breaking America’s faith in the law

April 29, 2024 – 11:47 am

It’s no longer possible to explain the justices’ behavior
without accounting for partisan politics and corruption.

Hacks? Back in 2021 at the University of Louisville, Justice Amy Comey Barrett addressed criticism of the Court she had joined less than a year before:

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the conservative Barrett said, according to the Louisville Courier Journal. She said the high court is defined by “judicial philosophies” instead of personal political views. “Judicial philosophies are not the same as political parties,” Barrett said.

Most of the legal experts who have appeared on MSNBC or CNN since then have more-or-less given that view the benefit of the doubt. Sure, some things have been hard to explain. In particular, the Court’s “originalist” rulings — “originalism” being one of the philosophies Barrett cited — have been suspiciously selective about the “history” that informed their majority opinions, and overall the originalist justices have shown little interest in history as it is taught by professional historians. On its shadow docket, the Court was far more responsive to the Trump administration’s requests to move quickly than it has been to the Biden administration. And then there’s Clarence Thomas, who takes six-figure gifts from billionaire “friends” he had never met before he ascended to the Court.

But hackery? No. Surely not. This is the Supreme Court we’re talking about.

These talking-head legal experts are almost entirely institutionalists: ex-prosecutors, retired judges, law professors, and even one ex-Acting-Solicitor-General. They’re deeply invested in the idea that the legal system works.

They’ve had a tough week.

Thursday, the Court heard oral arguments on Donald Trump’s claim that he has “absolute immunity” for anything he did as president. That claim is holding up his federal prosecution in the January 6 case.

Partisan delay. It’s already been clear that the Court has been shading the process in Trump’s favor. The original purpose of this immunity claim was to delay Trump’s trial past the election, so that he can order the Justice Department to dismiss the case if he becomes president again. Both the district court and the appellate court found no legal merit in “absolute immunity” — or in any kind of immunity that would cover this case — and the Supreme Court didn’t have to hear the appeal at all.

But instead, the Court has dragged its feet. Back in December, Jack Smith asked the Court to hear the appeal immediately, skipping the appeals court, so that Trump’s trial could get under way. They refused, waited for the appellate ruling, and then spent weeks deciding whether to review that ruling. When they finally did decide to hear the case, they scheduled oral arguments on the last day of the term for hearing arguments, burning as much time as possible.

But still, the institutionalist commentators told us, while the conservative majority might manipulate the calendar in a partisan fashion, it wouldn’t distort the law to favor Trump. Surely it would find, as both lower courts did, that there was no legal merit in this claim.

After Thursday’s hearing, though, that outcome is seriously in doubt. The conservative justices gave Trump’s attorney a far more sympathetic hearing than he deserved.

Breaking faith. Slate’s Dahlia Lithwick expressed a disillusionment I heard from many professional commentators:

As a blinkered institutionalist, I’m getting blowback along the lines of: “I told you so. They’re a bunch of partisan hacks.” I truly believed that at least seven members of the court would take the potential failure of democracy as a proposition seriously enough that the partisan valence of this case went away. That didn’t happen.

Former Assistant US Attorney Andrew Weissmann said, “Big picture: I’m in a very, very depressed mode.” And his podcasting cohost Mary McCord (a former Assistant Attorney General) replied “It’s been a rough several weeks of listening to Supreme Court arguments.”

Weissmann characterized the justices’ discussion of presidential immunity as “almost like a policy debate in Congress”. (It’s worth listening to this part, because you can hear the heartbreak in his voice.)

What was missing from that [discussion] was the text of the Constitution, the intent of the Framers, the history of the United States. I mean, it so belied the originalism/textualism credo of the so-called conservative justices. … And then, even within that policy debate, what was missing from the conservative justices was any record support, in terms of 200 years of history. …

It was remarkable to me the antipathy towards the actual criminal justice system that you were hearing from Alito and Gorsuch. Which was Alito saying, “You know, you can indict a ham sandwich.” I mean, this is our criminal justice system! … It was remarkable to me that you had people sitting in the Supreme Court denigrating the entire infrastructure of and edifice of our criminal justice system that they are a huge part of creating.

Slate’s Mark Joseph Stern summarized this same discussion with equal amazement and horror:

Alito had [Michael] Dreeben [representing the special prosecutor’s office] walk through the layers that protect a president from a frivolous or vindictive prosecution. Then he dismissed each one out of hand. So Dreeben said: First, you need a prosecutor who’s willing to bring charges; then you need a grand jury to indict; then there’s a criminal proceeding in open court where a jury of his peers decides whether he’s been proved guilty. And Alito just laughs it off as though it’s a big joke. Because we all know Justice Department attorneys are hacks who’ll do whatever they want, right? And a grand jury will indict a ham sandwich—nobody believes a grand jury will do anything worthwhile. And then, oh, sure a jury of his peers, like that’s going to do anything. [1]

This is the justice who is, by far, the most friendly to prosecutors and hostile to criminal defendants in case after case. Who could not for the life of him find a violation of the right to trial by jury or due process. But when the defendant is Trump, he suddenly thinks this entire system of criminal prosecution is such a bad joke that the Supreme Court has to step in and essentially quash this prosecution, because we can’t trust the system to work. The system that is incarcerating so many other people whose convictions Sam Alito just rubber-stamps.

And Lithwick replied:

I felt like that was the turn for me—it was Alito winking to Dreeben, saying, in short, “We both worked in the Justice Department; we know what a racket that crap is.” This was another one of those moments when I thought, sorry: Did one of the justices of the United States Supreme Court just imply that everything that happens at the Justice Department is hackery and rigged prosecutions? …

For his part, bribe-taking Clarence Thomas said little, but his very presence in the room said much: His wife Ginny traded texts with Mark Meadows in the lead-up to January 6. She probably won’t be called as a witness, but she could be. Under any sane system of ethics, he should have recused himself from this case.

But this is Clarence Thomas. He has no ethics. And this is the Supreme Court, where ethical standards have no enforcement mechanism. So there he sat. He will presumably vote on this case and perhaps even write a self-serving opinion.

Restraint? Another longstanding principle of conservative jurisprudence is judicial restraint: A court should decide the case brought before it, and not make wide-ranging rulings that are not needed to decide that case.

But Thursday, the conservative justices could not be bothered to discuss the actual case — Trump’s attempt to stay in office despite losing the 2020 election. Kavanaugh said as much: “I’m not as concerned about the here and now, I’m more concerned about the future.” Gorsuch echoed: “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” And Alito added: “I want to talk about this in the abstract.”

These justices seemed to take for granted that this case is precisely the kind of vindictive prosecution Trump’s lawyers warned about, and to discount entirely that a president might abuse his power to stay in office illegally, as a grand jury has indicted Trump for doing. These prior assumptions are entirely political assessments of the situation. They cited no facts of the case that would point in this direction, and no legal problems with the indictment.

What happens next? What seems likely to come out of these arguments is a ruling — probably on the very last day of the term in June, continuing to burn as much time as possible — that attempts to define a doctrine that is not really needed in this case, and has not been needed in the two centuries of American history so far: drawing a line between presidential acts that are immune from subsequent prosecution and those that are not. Having drawn this line, the Court can remand the case to Judge Chutkan with instructions to apply the new doctrine. Her ruling, whatever it is, can then be appealed back up the ladder, pushing the trial well past the election.

Fly free, Mr. Trump!

Jay Kuo, however, finds hope in an ironic place: Amy Coney Barrett. Barrett, Kuo reports, actually seemed to be paying attention to the case at hand, and might be looking for a way for the legal system to do its job, rather than grind its gears until the case is moot. So perhaps it will fall to her to fashion a way around the partisan hacks whose existence she denied in 2021.

As I remarked in my piece yesterday, so much of our future, and indeed even the plight of the world, has depended on just one or a few traditional conservatives still managing to do the right, principled thing. It might happen again here, who knows?

Barrett was interested in drawing a line between a president’s private acts and his officials acts.

Okay. So, in the Special Counsel’s brief, on pages 46 and 47, he urges us, even if we assume that there’s—even if we were to decide or assume that there was some sort of immunity for official acts, that there was sufficient private acts in the indictment for the trial to go, for the case to go back and the trial to begin immediately.

Barrett outlined scenarios that included much of Trump’s indicted conduct, such as the conspiracy to present false electors to Congress. Kuo speculates that Barrett might convince Roberts and the three liberal justices to support a majority opinion along these lines.

Another possible way forward consists of Judge Chutkan taking the remand and getting creative with it. In deciding which of Trump’s acts might fit the Court’s brand-new definition of immunity, she might have to hold an evidentiary hearing — not a trial — in which much of the prosecution’s case could be presented. It would not result in a jury verdict, but at least testimony from witnesses like Mike Pence and Mark Meadows could get onto the record.

This is decidedly a second-best (or third- or fourth-best) result. In a nation with an uncorrupted Court, a full trial would be completed and a jury verdict reached before the election. But we don’t live in such a nation. At least until Democrats can win enough elections to rebalance the Court — hopefully naming honest jurists with liberal philosophies rather than just more partisan hacks who lean left rather than right — we’re stuck with the corrupt Court we have.

[1] It’s worth pointing out that juries were the difference between the legitimate performance of Special Counsel Robert Mueller and the politically motivated Barr-Trump special counselship of John Durham. Mueller obtained convictions of a number of Trump associates like Paul Manafort and Roger Stone. But Durham’s drawn-out expensive investigation resulted in only two jury verdicts, both unanimous acquittals.

Juries are in fact what Trump is afraid of in his current cases. If his indictments were indeed the political witch hunts he claims, he should want a jury to expose this fraud to the voters. Instead, he seeks every delay possible, so that if a jury rules at all, it will come to late to inform the electorate.

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What to make of student protests?

April 29, 2024 – 9:43 am

Dangerous antisemitism or peaceful protest against genocide?
You can find whatever story you want to read.

Protests against Israel’s US-backed war in Gaza have broken out on college campuses around the country, with a wide variety of responses from campus officials and police. Some of the tent encampments are being left alone, while on other campuses the demonstrators are being forcibly removed.

Similarly, press coverage has been all over the map. Some sources essentially repeat the Netanyahu claim that “antisemitic mobs have taken over the leading universities”, while others interview demonstrators with more sympathy.

Even the coverage from supposedly liberal sources has been mixed. I was listening to MSNBC’s “Morning Joe” on Wednesday when host Joe Scarborough cited the fact that students had not protested the mass killing of Arabs by Saddam in Iraq or Assad in Syria, clearly implying that Israel is being viewed differently because of antisemitism. I couldn’t decide whether Scarborough was being clueless or actively disingenuous: The obvious difference is that Israel is carrying out its operations with American funds, American weapons, and American support at the UN. Whether we see Israel’s Gaza war as just or unjust, Americans should view these Palestinian deaths differently because we are implicated in them.

Given this diverse press coverage, I should probably go visit an encampment and make my own judgment, but I haven’t. The conclusion I’ve come to from reading a variety of sources is that, as is true with any large group of people, you can find whatever you look for. If you look for antisemitism, you can find it, like the Columbia student who said “Zionists do not deserve to live.” He has been banned from campus.

The large majority of demonstrators, though, look to me to be exactly what they say they are: peaceful protesters who think the killing in Gaza is unjust, want it to stop, and want the US (and their universities) to stop supporting it.

Vox reports:

Student protests on Columbia’s campus have been nonviolent so far. Representatives from the New York Police Department said during a press conference Monday that there had been some incidents in which Israeli flags were snatched from students and unspecified hateful things said. But they said that there have not been any reports of Columbia students being physically harmed or any credible threats made against individuals or groups associated with the university community ahead of the start of the Jewish holiday of Passover.

… On Tuesday, a student draped in an Israeli flag spoke to reporters from within the fenced-in area of the encampment. Jewish students who have been suspended from Columbia and Barnard stated that they had celebrated a Passover Seder within the encampment at a press conference.

I agree with Robert Reich:

Antisemitism should have no place in America — not on college campuses or anywhere else. 

But there is nothing inherently antisemitic about condemning the ongoing bloodshed in Gaza that has so far killed at least 34,000 people, mostly women and children.

Protesting this slaughter is not hate speech. It is what should be done on a college campus — taking a stand against a perceived wrong, at least provoking discussion and debate.

In the end, you may decide that Israel’s actions in Gaza are entirely justified, given the horror of Hamas’ October 7 attacks and the likelihood of similar attacks in the future. (Or you might not.) But reasonable people can disagree about this, and they should be allowed to express their views in public.

Many Republican politicians have responded cynically to the protests, trying to recreate Ronald Reagan’s successful demonization of campus protests during the Vietnam War. For example, it’s hard to take Texas Governor Greg Abbott seriously when he talks like this:

These protesters belong in jail. Antisemitism will not be tolerated in Texas. Period.

But Abbott is only intolerant of apparent left-wing antisemitism; he’s always been fine with right-wing antisemitism. Reporter Steven Monacelli of the Texas Observer comments:

I’ve seen no credible reporting of actual antisemitic incidents at the UT Austin protest. What I can tell you is that I’ve reported on numerous neo-Nazi events and Greg Abbott never once tried to put any of them in jail.

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The Manhattan case against Trump is stronger than I expected

April 29, 2024 – 9:11 am

I had doubts about this indictment. But they’re being answered.

The New York state trial of Donald Trump for 34 felony counts of falsifying business records has now completed its first full week of testimony. There’s still a lot to come, but already the case appears much stronger than I had expected.

Before the trial started, I (and a lot of other people) thought prosecutors faced two big potential problems:

  • Their case depends on the jury believing Michael Cohen, who is a convicted perjurer.
  • Falsifying business records is only a felony if the false records were intended to support or cover up some other crime. Establishing that other crime might be difficult.

Well, I shouldn’t have worried. By the time Cohen takes the stand, he’ll just be coloring in a picture that has already been outlined by other evidence. Documents and more trustworthy witnesses will establish that meetings were held, topics were discussed, agreements were made, and money was paid. Very little of the case relies on believing things purely on Cohen’s say-so.

As for the other crime, at least one is already well on its way to being established. National Enquirer publisher David Pecker has told the jury that the catch-and-kill scheme that kept several bad-for-Trump stories out of publication was intended to influence the 2016 election, and that he knew at the time their agreement violated campaign finance laws.

Simultaneously, the defense looks weak. Trump’s apparent strategy is to challenge the prosecution’s points piecemeal, but his lawyers are offering no alternate narrative that pulls everything together. So it’s already easy to picture what will happen when the jury deliberates: Some juror will repeat the defense’s challenge to some detail in the prosecution’s case, and another juror will respond, “Maybe. But then why did this other thing happen?” If there was no agreement with Trump, why did The National Enquirer suppress stories that would have sold a lot of papers? If Trump didn’t order it, why did Michael Cohen borrow money to pay Stormy Daniels? (And what about that document where Allen Weisselberg added up all the numbers to arrive at Cohen’s reimbursement?) If there was no crime, then what did Cohen go to jail for? And so on.

To the extent that it tells a story at all, the defense is claiming that Trump did nothing wrong, while all around him other people were doing odd things they had no reason to do. Believing that is not impossible, I suppose, but it requires something well beyond reasonable doubt of the evidence presented. [1]

This scattershot approach is a tactic Trump uses in all his scandals: He never settles on a single explanation of what happened, leaving himself free to spin different stories at different times to different audiences: I didn’t do it. I did it, but it’s not illegal. Maybe it’s not legal, but everybody does it and gets away with it, so singling me out is political persecution. Biden, Hillary, Obama, or somebody else I don’t like has done worse. In fact, it was the right thing to do and I’m proud I did it; nobody else would have had the guts to do it.

That works in a political world of short news cycles and shifting attention spans, but in court it fails. (We’ve already seen it fail in his civil trials.) The jury is required to sit there for weeks and keep paying attention, so distracting them for a moment or two doesn’t get him off the hook. They get to see all the evidence, and they want to form a complete picture of what happened. So if one side can paint them a complete picture and the other side can’t, they notice.

[1] One thing I remember from my own jury experience was the judge’s explanation of “reasonable doubt”, which is literally doubt that has some rationality behind it. Just being able to imagine that the defendant might not be guilty is not good enough. That’s why evil-twin theories don’t usually fly in court.

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Defending American Values: Trial by Jury

April 22, 2024 – 8:52 am

If we can’t trust ordinary people to be jurors, then we’ve already given up on Democracy.

The central mission of a rising authoritarian movement is to destroy public trust in any institution that can stand in its way, and in particular, in any source of truth that is independent of the movement and its Leader. And so over the last few years the MAGA movement has told us that:

  • We can’t trust our public health institutions to guide us through a pandemic.
  • We can’t trust what climate scientists tell us about global warming.
  • We can’t trust the FDA’s opinion on the safety of abortion drugs.
  • We can’t trust historians to recount the story of American racism, or librarians to make sound decisions about books that discuss either race or sex.
  • We can’t trust women who tell us they were sexually assaulted, or any women at all to make decisions about their own pregnancies.
  • We can’t trust the news media to report simple facts (like the size of Trump’s inaugural crowd).
  • We can’t trust our secretaries of state and local election officials to count votes.
  • We can’t trust the FBI and the Department of Justice when they fail to find evidence of voting fraud.
  • We can’t trust our intelligence agencies when they tell us about Trump’s friend Vladimir Putin.
  • We can’t trust a judge of Mexican ancestry to oversee the Trump University fraud lawsuit, or any judges appointed by Democrats to handle Trump’s other trials.

And so on. Because in an authoritarian system, the Leader defines Truth. Only he can be trusted.

In each of these situations, we are presented with a Manichean choice: There is MAGA and there is the Deep State. There are Trump followers and Trump haters. If you are not one, you are the other — and that’s all that matters. No one can be trusted to simply do their job in a fact-based, objective, or professional manner.

This week we saw another example of that authoritarian trust-destroying mission: We can’t trust juries. Specifically, we can’t trust a jury of New Yorkers — or any jury convened in a blue state — to stand in judgment over the Great Leader himself. Most New Yorkers didn’t vote for Trump, and so by definition they are Trump haters who are incapable of listening to evidence and forming objective opinions about his guilt or innocence.

Already in August, Kellyanne (alternative facts) Conway was telling Fox News that Trump couldn’t get a fair trial in three of the four venues where he has been indicted — “the most liberal county in Georgia, D.C., New York City, all these places that voted against him”. Apparently only in south Florida, under the supervision of a judge he appointed himself, could Trump possibly get a fair shake. Because a courtroom is just another political arena where all that matters is the love or hate you feel for Donald Trump.

It’s important to push back on this insidious belief, because it strikes at the heart of any notion of Democracy. If ordinary people can’t be trusted, then they can’t be allowed to govern themselves. If they are too unreliable to be jurors, why should these same untrustworthy people be allowed to vote or protest or express themselves in any way at all? If ordinary people can only be trusted when they belong to the Leader’s party, then why let any other party compete for power?

There’s a reason that trial by jury goes back to the Magna Carta, and was guaranteed by the Founders in the Sixth Amendment. A belief in juries is fundamental to the whole project of Democracy.

Encouraging corruption. Once you convince yourself that an institution is inherently corrupt, the obvious next step is to make that corruption work for you rather than against you. So conservative talk-radio host Clay Travis made this plea to his listeners:

If you’re a Trump supporter in New York City who is a part of the jury pool, do everything you can to get seated on the jury and then refuse to convict as a matter of principle, dooming the case via hung jury. It’s the most patriotic thing you could possibly do.

In other words: Don’t answer the judge’s questions honestly, and once you get on the jury, don’t do your job with integrity. Don’t listen to the evidence and form an objective opinion. Refuse to convict “as a matter of principle”.

What principle would that be? That the Leader can do no wrong? That he is above the Law?

Rep. Byron Donalds (who a few months ago was in the running to be Speaker of the House) similarly denied that there was any need for jurors to listen to the prosecution’s case:

My plea is to the people of Manhattan that may sit on this trial: Please do the right thing for this country. Everybody’s allowed to have their political viewpoints, but the law is supposed to be blind and no respecter of persons. This is a trash case; there is no crime here; and if there is any potential for a verdict, they should vote not guilty.

But of course, there is a crime: falsification of business records, which is illegal in New York. Donalds knows this, just as he knows that Michael Cohen has already served time for his role in this illegal plot. If he truly believed Trump to be innocent, he could simply urge jurors to do their jobs with integrity, and express faith in the outcome. But he didn’t, did he?

Fox News has been doing its best to out the jurors, so that they can be vulnerable to intimidation and coercion from the violent MAGA faithful. In one case they have already succeeded: A juror who was seated on Tuesday came back Thursday asking to be excused because people had already begun to guess her identity. Fox host Jesse Watters had picked her out (by number) as a juror who might be difficult for Trump. (The evidence against her? She had blasphemed by saying: “No one is above the law.”) He then slandered (and Trump retweeted him) the jurors in general.

They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.

In reality, Trump’s lawyers had caught people with liberal views saying that they could be objective. There is no reason to believe they can’t, beyond the dogma that all liberals are irrational Trump-haters.

In the face of this attack on a core democratic value, it’s important to reaffirm our faith in it, as Vox’ Abdallah Fayyad does:

Regardless of what the former president says, the demographics of New York or Washington, DC, won’t determine whether or not he will receive a fair trial. That will depend on how the prosecution makes its case, and whether the jurors will take their jobs seriously and evaluate the case on its merits rather than on their views of the defendant — something that juries are more than capable of doing.

That’s why Trump’s disingenuous attacks on the jury are dangerous: not because he’s questioning their potential fairness (juries can indeed be unfair, and defendants have the right to point that out), but because he’s broadly deeming some Americans — that is, anyone who doesn’t support him — as inherently illegitimate jurors.

If you believe in Democracy, the legitimacy of jurors doesn’t depend on who they voted for in 2020 or plan to vote for later this year or what they think of Donald Trump. Trials are not popularity contests. You can believe Trump is the scum of the Earth, and still evaluate fairly whether the prosecution has proved its case against him. As many a defense lawyer points out in summation: “You don’t have to like my client to find him not guilty.”

Could I be a juror? As I watched (from a distance) the Manhattan court’s effort to form a Trump jury, I did what I think a lot of people did: wondered how I would answer the questions prospective jurors were asked. In particular: Could I be objective? Could I listen to the evidence and arguments from both sides and reach a fair verdict?

I decided that I could. Now, as anyone who reads this blog or follows me on social media knows, I have a very strong negative opinion of Donald Trump. I have openly said that I think he’s guilty, not just in this case but in the other three cases as well. Had I been in that courtroom, the defense would undoubtedly have used one of their peremptory challenges to make sure I never came anywhere near the jury box. So how could I imagine being a fair juror?

Here’s how: I have a clear sense of the duties of a juror takes on. And the principle of trial by jury is more important to me than the fate of one man. Demagogues and grifters like Trump will come and go in American history, but trial by jury is something that I hope will endure through the centuries. I wouldn’t want to be part of screwing it up.

In particular, I believe that everyone accused of a crime deserves a fair trial, and that the prosecution has a responsibility to prove its case beyond a reasonable doubt. I also believe in the rules of evidence. As a juror, it wouldn’t matter to me what I had read in the news media or what I thought I remembered from the internet: The real evidence, the trustworthy evidence, isn’t what I heard on Fox News or MSNBC, it’s the evidence that shows up in court. And so when the trial ground to its conclusion, I would ask myself: Given what I’ve heard in court, has the prosecution proved its case? If it hadn’t, I would vote to acquit.

Now, I sincerely doubt that anything that might happen in this trial will change my opinion of Trump. At the end of the trial, I’m sure I will still believe he’s a fundamentally dishonest man who cares for no one but himself. I may even still believe that he’s guilty of the charges against him.

But if I’m a juror, that doesn’t matter. The question isn’t “Do you believe he’s guilty?” but “Has the prosecution proved he’s guilty.” If they haven’t, I could vote to acquit — even as I continued to hope that the prosecutors in one of his other cases would have more success.

Can this jury be fair? I have great faith that it can.

Part of my faith comes from having served on a jury several years ago in an emotionally fraught federal drug case. The defendant came from a household that in many ways exemplified the American dream: He and his wife were Hispanics who had worked their way into the middle class and were raising several children, all younger than 10. He worked in a local factory, and she was a nurse. The real bad guy here seemed to be the defendant’s brother, a career drug dealer that the government had been failing to make a case against. He sold drugs out of the defendant’s basement, and when the undercover cop showed up wanting to buy, he was too smart to sell. But the defendant trusted the cop, so the brother in essence said, “If you trust him, you sell to him.” The defendant did, and that was how he came to be on trial.

After the evidence was presented, we deliberated for an afternoon and most of the next morning. We were all over the map, and I had a very difficult night while I shouldered my responsibility. All of us sympathized with the wife and children. Several jurors who had been leaning not-guilty in the afternoon changed their minds overnight: By morning they were angry at the defendant for letting his brother sell drugs out of the house where his kids lived.

In the end, we answered the question we were given: Had the government proved that he sold the drugs? It had, and we convicted him. (We also had a meeting with the judge where we pleaded for him to sentence mercifully. I never checked whether he did.)

I learned a few things from this experience: First, the ritual of the court is powerful magic. You may come in with all sorts of impressions and opinions. But you very quickly learn to appreciate the awesomeness of the power you have been delegated and the responsibility it puts on you. (Spider-Man is right: With great power comes great responsibility.)

Second, no matter how different the individuals are, some kind of group loyalty develops. Not reaching a verdict feels like failure, and the jury doesn’t want to fail. We had each given a week of our time to this trial, and we didn’t want to believe our time had been wasted.

This is why I have faith in the Trump jury. Yes I can imagine all sorts of scenarios where somebody follows Clay Travis’ instructions: lies to the court so that they can get on the jury and rig the outcome. But that’s a harder mission to pull off than you might think.

My jury only met for a week. This one will probably sit for a month or more. During that time, they’ll share a lot of cups of coffee and more than a few lunches. They’re not supposed to discuss the trial until deliberation, but they’ll undoubtedly find other things to talk about: kids, jobs, the weather, TV shows. They’re going to see each other as people and develop a sense of common purpose.

Imagine spending that whole month with people while animated by a single malevolent thought: “I’m going to make sure you all fail. Because of me, this month we’ve all sacrificed will come to nothing.”

That would be a hard mission to carry out.

Even if you came onto the jury with a fairly strong belief in Trump, I think the ritual of the court and the camaraderie of the jury might well capture you. Every day you will look at Trump and realize that he is (as one prospective juror put it) “just a guy”, and not the great savior you imagined him to be. You will see him glower and bluster and doze off and treat you and your fellow jurors and the judge with disrespect. You will hear the prosecution witnesses assemble the case against him step by step. (You will have heard that the case is all politics, but in fact no one is talking politics. They’re presenting evidence.) When the defense takes its turn, you will hope for some grand revelation that shatters the prosecution’s case. And you will be disappointed.

During deliberation, you will have no real argument to make against your fellow jurors who want to convict. Over the month, you will have learned that they are not the frothing Trump-haters Fox News led you to expect. They’re just ordinary people trying to do their civic duty. Are you then going to look them all in the eye and admit that out of sheer stubbornness, you are going to make them fail?

Maybe. But I doubt it.

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Republicans Scramble to Contain Their Abortion Disaster

April 15, 2024 – 10:20 am

Trump’s let-the-states-decide statement looked clever until Arizona actually decided.

All across the country, the abortion issue has been helping Democrats and hurting Republicans.

For decades it worked the other way: Pro-choice women were confident the Supreme Court would protect their rights, so they mostly ignored the extreme positions Republican politicians took and based their votes on other issues. But since the Dobbs decision reversed Roe v Wade last year, the intentions of elected officials matter again.

After taking their lumps in the 2022 elections, Republican politicians have been trying to figure out how to finesse the issue. How do they avoid the ire of female voters without alienating their personhood-at-conception base? Last fall, Virginia Governor Glenn Youngkin thought he had the formula: a “compromise” abortion ban at 15 weeks. But that idea went down in flames as Republicans lost control of the Virginia legislature.

Trump also has been searching for an answer. For a while he also toyed with a 15-week ban, but then last week he stalled for time, saying he’d make a statement this week. I was skeptical about this, because Trump often says he’s going to do something and then doesn’t. But in fact he did make a statement on Monday.

I don’t usually post Trump videos, but I think you need to see this to appreciate just how far off-the-rails this guy has gone. To start with, his make-up is comical; he almost looks like he’s wearing blackface. Then there are the obvious, how-stupid-do-you-think-we-are lies about how “all legal scholars, both sides, wanted and in fact demanded” the end of Roe, and Democrats “support abortion up to and even beyond the ninth month”. (In fact, Biden supports restoring the pre-Dobbs status quo, which drew a line at viability, i.e. 24-28 weeks. More radical people, like me, want the government to butt out completely and let women decide how to handle their own problem pregnancies. But describing that view as “support” for abortion is dishonest. I, for one, am neutral on abortion; I have never tried to persuade a woman to get one.)

But the gist of the statement is that Trump is proud of engineering the conservative Supreme Court majority that decided Dobbs, and he doesn’t want to take any public position beyond letting the states (and not women together with their families and doctors) decide when abortion is permissible. He later said he wouldn’t sign a federal abortion ban if Congress presented him with one. (But then, Trump says a lot of things, and most of them turn out not to be true. When he was president, he claimed his tax plan wouldn’t help the rich. But when Paul Ryan gave him a plan that focused most of its benefits on the rich, he signed it. And we’re still waiting to see the “terrific” health care plan he promised in 2015. )

He’s also proud of being opportunistic on the issue.

You must follow your heart on this issue. But remember: You must also win elections.

That let-the-states-decide position looked clever for about a day. But then a state decided: Tuesday, Arizona’s Supreme Court reinstated an 1864 law banning all abortions that aren’t necessary to save a woman’s life. (In the previous post, I explain why I believe this is a correct reading of a horrible legal situation. It’s the legislature, not the court, that should never have allowed this to happen.)

Then Trump had to scramble: He said Arizona went too far, and predicted the situation would be “straightened out”. Arizona’s mini-Trump, Senate candidate Kari Lake, completely reversed her position. Previously, she had specifically endorsed the 1864 law (by its number in the legal code). But now she says

I oppose today’s ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support.

So far as I know, this is the first time Lake has admitted that Katie Hobbs (who defeated Lake in 2022) is indeed governor. I also love the invocation of “common sense solution”, a conservative buzz phrase Sarah Palin popularized: It’s a placeholder. You’re supposed to insert whatever position you think makes sense, and then imagine Lake said that.

But Lake hasn’t said anything. As of this moment, neither Lake nor Trump (nor any other Republican who either has real power or is running to get it) has made an actual proposal to fix Arizona’s draconian abortion law. When it comes time to govern — and not just posture — that’s what you need to do: put a real proposal on paper and vote it up or down, knowing that you’ll make some people unhappy.

Are any Republicans, at either the state or national levels, ready to govern? That’s what the coming weeks will tell us.

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The Arizona Abortion Ruling

April 15, 2024 – 9:25 am

The result is horrible, but it’s a correct reading of the the legislature’s mess.

Before he was appointed to the Supreme Court, Judge Oliver Wendell Holmes is supposed to have admonished an idealistic lawyer: “This is not a court of justice, young man. It is a court of law.” In other words, courts exist to apply the laws, not to fix them.

I was holding that idea in mind when I read the Arizona Supreme Court’s ruling reinstating an 1864 abortion law. Undoubtedly, this result — that all abortions are banned excepting only those that protect a woman’s life, and not excepting cases of rape or incest or even health consequences short of death — is horrible. But it could nonetheless be a correct reading of Arizona’s laws.

So here’s the timeline, as I understand it.

In 1864, the territorial legislature passed a law that said:

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

That wording got adopted as part of the penal code approved by the legislature in 1913, shortly after Arizona became a state.

The statute’s constitutionality got challenged in 1971, before Roe v Wade, and after some back-and-forth, an appeals court ruled it constitutional. Then the US Supreme Court’s Roe decision came in 1973, and Arizona courts recognized that the 1864 law was unconstitutional under Roe’s recognition of a federal constitutional right to abortion. But this didn’t stop the legislature from testing the boundaries of Roe.

Between 1973 and 2022, and conforming to the federal abortion right established in Roe, the Arizona Legislature codified dozens of abortion statutes in Title 36. … To the extent permitted by Roe and its progeny, all of these statutes restricted abortions, including adding many procedural requirements for physicians performing abortions.

In 2022, shortly before Dobbs was officially announced, the legislature passed S. B. 1164, which amended Title 36 of the state laws. The main thrust of S.B. 1164 was to ban abortions after 15 weeks, which would violate the rights established in Roe. This was one of many laws red-state legislatures passed after Trump’s three judges joined the Supreme Court. The purpose was to see if the new Supreme Court would chip away at Roe’s protections. What’s relevant for this case is the exact wording:

A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report required to be filed with the department . …

B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.

Notice that both provisions are phrased negatively: “a physician may not perform …”. Under the prevailing legal interpretation of 2022, i.e. Roe, the abortions not explicitly prohibited would be allowed. But nothing in S. B. 1164 says they are allowed. Quite the opposite:

This act does not: (1) Create or recognize a right to abortion or alter generally accepted medical standards. The Legislature does not intend this act to make lawful an abortion that is currently unlawful. (2) Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion

Section 13-3603 was the descendant of the 1864 law.

So then the Supreme Court’s Dobbs decision reversed Roe. This undid the 1973 finding that the 1864 law was unconstitutional, leaving the current state court to pick up the pieces.

Arizona’s Democratic attorney general argued that by banning abortions after 15 weeks, S. B. 1164 implicitly authorized them prior to 15 weeks, and implicitly repealed the 1864 law. A dissenting opinion in the decision agrees with this argument, but I think the majority got it right: There is no affirmative language in S. B. 1164 that authorizes any abortions.

I agree completely with the moral arguments denouncing this outcome: It’s barbaric that Arizona’s women’s rights are constrained by a law passed before statehood and before women had a right to vote. No court of justice would allow this. But we don’t have courts of justice; we have courts of law.

What can be done? The obvious way to repair this situation is for the legislature to do explicitly what the dissenting opinion thinks it did implicitly when it passed S. B. 1164: repeal 13-3603. That would leave Arizona with a 15-week abortion ban recognizing certain exceptions — maybe not the ideal outcome, but a far better one than the current situation.

Democrats in the legislature proposed this solution, but Republicans blocked it.

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A Different Take on Retro Conservative Fantasy

April 15, 2024 – 8:54 am

Sometimes unrealistic fantasies raise questions that deserve serious answers.

The Washington Post’s “Tradwives, SAHGs and the dream of feminine leisure” is one of those rare articles that is way more interesting than its apparent topic. OK, there’s a “tradwife” trend of sorts: social media influencers who style themselves as classic 1950s housewives, and a parallel group of stay-at-home girlfriends (or what we used to call “kept women”). But this “trend” doesn’t represent all that many women, and you probably don’t need a major newspaper to tell you what to think about them. After all, if women had been happy in these kinds of roles, second-wave feminism would never have caught on.

But Monica Hesse takes a much more interesting approach. She doesn’t analyze tradwifery as a serious option, as in “Were women really happier before feminism?”. Instead, she approaches that vision for what it is: a fantasy. “I dream of feminine leisure”, say many of the tradwives and SAHGs. And then Hesse asks why that dream might be beguiling.

Her down-to-earth answer is simple: Life is hard these days.

The fact of the matter is that almost nobody who works for a living has the time they wish they did to look, feel or be their best, much less to cultivate a highly aesthetic relationship with a thing called ease.

What if the problem is not feminism but capitalism — specifically the American version, where work-life balance is a punchline? What if instead of 11 paid vacation days, as the average American gets, these women got the full month that is standard in the United Kingdom? What if instead of five (or six or seven) days a week, they worked the four days that countries such as South Africa and Belgium are piloting? Would that allow enough time to do a full skin-care regimen and pack a great suitcase? If college weren’t so ghastly expensive here, maybe that one lady’s daughter wouldn’t be so keen on the patriarchy as a route to leisure that bypasses the long, uphill road to financial independence.

It wasn’t fair when women had no choice to stay home. It’s not fair if women are working but are still doing the work of maintaining a home. It’s not fair if both men and women are trying to juggle it together and are still finding that there aren’t enough hours or dollars in a day.

Who wouldn’t dream of feminine leisure?

To her credit, Hesse also imagines the male side of this fantasy: Who wouldn’t want to return from work each evening to find a home in perfect order, dinner on the table, and a well-rested spouse ready to draw you into the “ease” she has been cultivating all day? (Now you just need a willing partner and a senior-vice-president salary to pay for it all.)

Hesse’s article expresses a point of view that could generalize: Maybe we’re approaching retro conservative fantasies all wrong. At root, most of them aren’t really about then, they’re critiques of now: Why does life have to be so hard? Why is it so hard to pay for college? To get a career started? To find a serious relationship partner and stay together? To afford a home? To fit children into the equation and offer them at least as good a chance as you had?

Maybe people who are trying to wish their way out of this box deserve our empathy rather than our condemnation. The various retro fantasies they indulge may not be fact-based or workable in practice, but at least they address the question: Life wouldn’t be so hard if some sugar daddy would take care of me. Or if immigrants and minorities hadn’t stolen my place in line. Or if everybody went back to Jesus. Or if the government stopped sending our money overseas. Or if we had a strong-man leader who could make our country great again (whatever era “again” is supposed to point to).

Maybe the best liberal response isn’t a screed about the evils of sexism or xenophobia or authoritarianism. Maybe we should skip past the specifics and give our own answer to the underlying question: Why is life so hard these days?

We do have such an answer, one that I believe is far more realistic and supportable than anything conservatives offer: Life is hard because sometime in the late 1970s, the US scrapped the controls that kept the rich from capturing all the growth in the economy.

We scrapped antitrust enforcement, so as a consumer you have to take whatever deal monopolies offer you. (The endless “choices” you face at the mall are often just different tentacles of the same octopus.) We scrapped unions, so as a worker you have no negotiating power. And we changed the tax system so that whatever the rich capture, they keep. The result is this graph, which every American voter should be able to draw on a napkin.

If hourly compensation had kept up, the average Americans would make more than double what they do now. So you could afford a one-income household, if that’s what your family wanted. Or you could save up for year-long sabbaticals and return to the workplace with new vision and energy. Or you could retire at 50 and see the world.

Corporate talking heads may denounce this point of view as “class warfare” or “socialism”, but such name-calling isn’t really a refutation. And it is nostalgic in a manner of speaking, but the point isn’t to recreate some past era; it’s to get back to the trends that held in the 50s, 60s, and early 70s, when economic gains were widely shared.

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Will the World Central Kitchen attack change anything?

April 8, 2024 – 8:44 am

The Biden administration has finally begun to distance itself from the Netanyahu government. How much difference will that make?

Israel’s attack Monday night on a three-car convoy of the food-aid group World Central Kitchen brought to a head something that had been building slowly for a long time: American discontent with the war in Gaza.

Israel immediately said the attack, which left seven aid workers dead, was a mistake. But WCK Founder José Andrés wasn’t buying it:

This was not just a bad luck situation where, “Oops, we dropped a bomb in the wrong place.” … The airstrikes on our convoy I don’t think were an unfortunate mistake. It was really a direct attack on clearly marked vehicles whose movements were known by everybody at the [Israel Defense Forces].

Thursday, the report of an internal IDF investigation told a more complex story.

The IDF’s investigation concluded that the army unit involved had believed the vehicles they were tracking from the sky had been taken over by Hamas gunmen, and that they were not aware of the coordination procedures put in place between the military and World Central Kitchen for that evening.

Andrés is calling for an independent investigation.

One reason this particular incident has had such an impact on world opinion is that it is part of a larger pattern.

Scott Paul, of Oxfam, said in a briefing with other relief organisations on Thursday before the results of Israel’s investigation were released: “Let’s be very clear. This is tragic but it is not an anomaly. The killing of aid workers in Gaza has been systemic.”

“Systemic” seems very carefully chosen. It does not necessarily mean “intentional”, but it includes that possibility. What “systemic” suggests to me is a kind of indifference: As things are, aid workers die on a fairly regular basis. This fact does not cause the system to change.

According to AP (which attributes the number to the UN) “at least 180 humanitarian workers have been killed in the war so far”. Those 180 are again part of a larger whole: around 33,000 Gazans, at least 13,800 of them children, have died since the war started. A much larger number of people are at risk due to the famine developing as insufficient quantities of food are brought in.

The larger numbers, though, are harder to form clear opinions about. Some of the 33K dead were the Hamas fighters Israel has every right to target. Some civilians were Hamas supporters, and some probably ventured into places they had been told to stay out of or ignored Israeli warnings about impending attacks.

But the seven WCK workers did everything right. They told the IDF what they were doing, which centered on delivering food to people who need it. They, like the 180 dead aid workers they joined, were people risking their lives to make sure strangers got food and medical care. We are, in short, talking about seven (and 180) of the best people in the world.

Until now, the Biden administration has chosen to keep its conflicts with the Netanyahu government behind closed doors. The public would hear reports that Biden was pressuring Netanyahu to be more forthcoming in negotiations over the ceasefire-for-hostages deal the US would like to broker, but publicly the US had Israel’s back at the UN and in every other public forum. Biden has paid a fairly large political price for this among progressive Democrats, especially young people. More recently, even longtime supporters of Israel, like Majority Leader Chuck Schumer, have begun criticizing Netanyahu.

Thursday, Biden and Netanyahu had a phone call. The White House account of that call had a significantly different tone: Biden was demanding specific actions, and threatening consequences if they didn’t happen.

President Joe Biden ticked through several things that he needed to see Israeli Prime Minister Benjamin Netanyahu do immediately: open up the Erez crossing into northern Gaza and the port of Ashdod in southern Israel for humanitarian aid; significantly ramp up the supplies getting in through Kerem Shalom.

For now, Israel seems to be doing what Biden asked. But it will take time to see whether anything has substantively changed: Will more aid get through to Gazans? Will the famine abate? Will an attack on Rafah produce a new spike in civilian casualties? Will some kind of ceasefire-for-hostages deal actually happen? And if nothing changes, will Biden follow through with the “changes in our own policy” Secretary Blinken has suggested?

I think it’s important to keep repeating a point I’ve been making from the early days of the Gaza conflict: Americans should not be bringing this war home. American Jews are not the Netanyahu government. American Palestinians are not Hamas.

I am in complete agreement with Rabbi Mike Harvey on this point:

Memo to the bigots. Israel does not set its policies or run its war from: Synagogues, Jewish community centers, Holocaust museums, Kosher grocery markets, Jewish-owned cafes & shops

Bringing a mob to scream outside these places is an act of hate and antisemitism, not protest.

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The Supreme Court will have to carry this case to term

April 1, 2024 – 9:32 am

The mifepristone suit from Amarillo is so embarrassingly bad that even the Court’s conservative majority can’t justify doing what it wants.

The anti-abortion-pill case that right-wing culture-war groups primed to get to the Supreme Court got to the Supreme Court. Oral arguments happened Tuesday, and did not go nearly as well as anti-abortion groups probably imagined when they filed the case. Even Amy Coney Barrett seemed skeptical.

There probably won’t be a decision until June, so there’s no sense going into great detail now. But there are a couple of things worth noting:

  • When you grease the way for a case to make it to the Supreme Court, you wind up with a greasy Supreme Court case. Legally, this was a bad argument that never should have come this far, and even some conservative justices seemed embarrassed by it.
  • US courts continue to entertain notions of “Christian conscience” that are so expansive as to be passive aggressive. The rest of us are expected to change our lives so that right-wing Christians can have a buffer zone around extensions of “conscience” they have intentionally constructed to control us.

I explained the greased slide that brought this case to the Supreme Court back when the case was first being heard in Amarillo, almost exactly a year ago: The Northern District of Texas, which contains Amarillo, has one judge who hears just about all the cases. That judge, Matthew Kacsmaryk, is a right-wing culture warrior who can be counted on to rule in the “right” way, independent of facts or the law. The Northern District sits inside Fifth Circuit, whose appellate court is not quite as lawless as Kacsmaryk, but has a similar right-wing bias and will not examine his rulings too closely.

So in this case, foes of abortion rights incorporated their group in Amarillo precisely so they could file their suit in Kacsmaryk’s court. (The Judicial Conference has since changed the rules to limit this kind of judge shopping.) Kacsmaryk did his part and issued a nationwide injunction stopping the sale of mifepristone. The 5th circuit cut that injunction down a little, leaving mifepristone legal but limiting the possibilities for prescribing it. The Supreme Court previously stayed both rulings pending its own examination of the injunction.

That’s what they were discussing Tuesday.

The big reason the case should never have come this far is the plaintiffs’ lack of standing. In non-legalese, they can’t show how the availability of mifepristone harms them, so there’s no injury for the court to try to correct.

According to the doctors, their concrete injury is that someone might take mifepristone, might experience medical complications, might go to the hospital for care, and then the physicians in question might have to complete the abortion despite their moral objections to doing so.

Standing is supposed to be real, not speculative. The injury is supposed to be either happening, or so close to happening that it seems bound to happen without an injunction. A maybe-maybe-maybe argument doesn’t give you standing. There’s a good reason for this requirement: Otherwise, judges could make pronouncements about any topic that interested them, and the awesome power our system gives the courts could be abused.

A lot of articles have covered the case’s standing issue. But I was pleased to see Dahlia Lithwick and Mark Joseph Stern raise the passive aggression issue in Slate. (They don’t use that terminology, which I started using in 2013.) Under questioning, plaintiff lawyer Erin Hawley (wife of the famously swift senator) made an even stronger claim than the quote above would imply. When you read “complete the abortion”, you probably pictured a woman taking mifepristone, her body starting to eject the fetus, but not quite succeeding in getting it out. She might then show up in an emergency room, where an ER doctor opposed to abortion might have to complete the removal of a fetus that is doomed but not yet entirely dead.

However, that grisly scenario is exceedingly unlikely. A far more likely complication (still rather uncommon) is that the woman takes mifepristone, miscarries, but then doesn’t stop bleeding afterward. In this scenario, the abortion is over, the fetus is dead, and now an ER doctor needs to treat a bleeding woman.

The plaintiffs don’t want to, because patching up a woman who has taken a drug to give herself an abortion would make them “complicit” in the abortion.

Hawley … then approached the lectern and cleared up any confusion: Yes, she insisted, treating a patient who has undergone a medication abortion violates the conscience of the plaintiff physicians even if there is no “live” fetus or embryo to terminate anymore. “Completing an elective abortion means removing an embryo fetus, whether or not they’re alive, as well as placental tissue,” Hawley told Kagan. So the plaintiffs don’t object just to taking a “life.” They also object to the mere act of removing leftover tissue, even from the placenta.

Of course, these doctors must remove “dead” fetal tissue and placentas all the time—from patients who experienced a spontaneous miscarriage. By their own admission, the plaintiffs regularly help women complete miscarriages through surgery or medication. Those women they will gladly treat. Other women, though—the ones who induced their own miscarriage via medication—are too sinful to touch. Before the plaintiffs can administer even lifesaving emergency treatment, they need to know the circumstances of this pregnancy loss: Spontaneous miscarriages are OK; medication abortions are not.

It’s impossible to imagine this logic being accepted in any non-abortion circumstance. Suppose a guy gets drunk and drives his car into a tree. When he shows up in the ER, would a doctor (maybe from a religious sect that forbids alcohol) refuse to treat him in order to avoid being complicit in his drunk driving? ERs don’t work that way. In any other circumstance, injured people show up and get treatment. The guy who stitches up participants in a barroom brawl doesn’t need to know what started it or who was right.

It is a twisted line of logic, one that should never have reached the Supreme Court in the first place. But it is also a product of the court’s past indulgence of outlandish claims about moral “complicity.” … All this is reminiscent of Little Sisters of the Poor, a case about a Catholic charitable group that was afforded an exemption from the Affordable Care Act’s contraception mandate. The Little Sisters were asked to check a box signaling to the government that they could not comply with the mandate, at which point the government would step in to cover their employees. But the Little Sisters refused, viewing this action—the checking of a box to opt out of coverage—as “complicity” in abortion because it would in turn trigger government payment for contraception (which they viewed as abortifacients). The Supreme Court and the Trump administration ultimately indulged the Little Sisters’ claim.

It may violate conservative political correctness to say so, but the Little Sisters were just being assholes in that suit. They invented an extravagant claim of conscience in order to screw up ObamaCare and interfere in other women’s lives.

Refusing to bake cakes or make web sites for same-sex weddings (other situations the Supreme Court has treated seriously) are similar examples of passive aggression. Going far beyond any legitimate Christian concern, such cases involve constructing an enormous hypersensitive conscience that will feel “complicit” in anyone’s behavior that it fails to control. Making the world safe for such a construction restricts the freedom of everyone else.

No non-Christian religious group would be allowed to do this. And Christians will keep extending such notions of “complicity” until courts tell them to stop. That should have happened a long time ago.

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