Transformations

For the purpose of this criminal case,
former President Trump has become citizen Trump.

– US Court of Appeals for the DC Circuit

This week’s featured post is “About Biden’s Age and Memory“. Short summary: Everybody calm down.

This week everybody was talking about Biden’s memory

That’s the subject of the featured post. One of the things I learned during my father’s final years was the difference between aphasia (inability to find the right words) and dementia (inability to grasp situations). Biden’s occasional flubs look completely verbal to me, so they don’t seem worrisome. He knows what’s happening and is thinking clearly about it, even if he sometimes calls something or someone by the wrong name.

Trump makes similar mistakes all the time (probably as often as Biden) but the media doesn’t cover them the same way. I guess I understand why: It seems silly to worry about Trump saying the wrong words when the words he intends to say are so reprehensible. What if, when he wanted to call Democrats “vermin“, or accuse immigrants of “poisoning the blood of our country“, he had accidentally said something else? Would that be worse?

Just this weekend, he taunted Nikki Haley by asking about her spouse.

What happened to her husband? Where is he? He’s gone. He knew. He knew.

I haven’t seen a clear explanation of what Trump imagines Michael Haley knows. But where Haley has gone is no mystery: He’s a major in the South Carolina National Guard, and has been deployed to Africa since June. The Republican Party used to respect military service, but apparently it no longer does. Wherever Major Haley is, though, he has access to the internet, because he tweeted back:

The difference between humans and animals? Animals would never allow the dumbest ones to lead the pack.

And then there was this:

Former President Donald Trump said Saturday he would encourage Russia to “do whatever the hell they want” if it attacked a NATO country that didn’t pay enough for defense.

When he says that kind of stuff on purpose, who has time to cover his misstatements?

and the Trump trials

The big news from early in the week was the DC Appeals Court ruling against Trump’s claim of “absolute presidential immunity”. The court rejected Trump’s arguments across the board, summing up its opinion like this:

For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

For weeks, observers have been speculating about what was taking the court so long — nearly a month — to rule, and their opinion validated most of that speculation: The three judges were ironing out their differences so that they could write a single opinion in the name of the court. It seemed obvious from the beginning that none of the three agreed with Trump’s lawyers’ arguments, but if they had disagreed about why Trump was wrong, they would leave issues for the Supreme Court to resolve. As it is, the Court has the option to refuse Trump expected appeal and let the lower court decision stand.

Trump is expected to file his appeal to the Supreme Court today, because the appellate court’s stay on his DC trial runs out today, leaving Judge Tanya Chutken free to restart proceedings. Jay Kuo explains:

But here’s a fun fact: While it only takes four justices to agree to hear a case, it takes five justices to issue a stay. And a stay is what Trump really, really needs to keep running out the clock.

I feel like commentators are doing the public an injustice when they observe that Trump is trying to “run out the clock”, as if that were a natural thing to do. An innocent candidate for office would want to get his cases settled before the election, but Trump wants to delay past the election because he is guilty. His only hope to stay out of jail is to regain the presidency and use its powers to obstruct justice, so that no jury ever sees the evidence against him.

Thursday, the Supreme Court heard arguments in another Trump case, the one about whether the 14th Amendment bans him from office as an insurrectionist. The questions asked by almost all the justices were skeptical, and most observers have concluded that the Court really doesn’t want to be the reason Trump doesn’t become president again.

Slate’s Dahlia Lithwick discusses what she finds “The Most Galling Thing About the Supreme Court’s Trump Ballot Arguments“: taking seriously the idea that finding for Colorado would open a can of worms, as red states would then start throwing Democratic candidates off their ballots. The assumption behind this argument is that our justice system is incapable of distinguishing frivolous cases from well-founded cases.

Remember when Trump said he could shoot someone on Fifth Avenue and not lose support? Well, imagine if he did and the State of New York charged him with murder. Trump could then argue that the prosecution shouldn’t be allowed, because otherwise red states would start charging Democrats with murder.

Does that make any sense? I don’t think so, and I don’t think a similar argument in this case makes sense either.

We’re still waiting for a verdict in Trump’s New York civil fraud trial.

and the Gaza War

Since the ground attacks on Gaza started, Israel has been pushing the civilian population south, towards Rafah. CNN estimates that 1.3 million of Gaza’s two million people are now taking refuge there. The only place further south is Egypt, which is not accepting refugees.

Over the weekend, airstrikes on Rafah began. The Palestinian Red Crescent Society claims that over 100 people have been killed, but says the exact death toll is hard to know because people may still be trapped under rubble.

Last night, an Israeli raid into Rafah rescued two Israeli hostages.

There is beginning to be some daylight between the Biden administration and the Netanyahu government. In the press conference where President Biden responded to the Hur report, he characterized the Israeli response to the October 7 attacks as “over the top” and said

There are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying, and it’s got to stop.

Secretary Blinken has been trying to negotiate a ceasefire. The most recent Hamas proposal was for

a ceasefire of 4-1/2 months, during which all hostages would go free, Israel would withdraw its troops from Gaza and an agreement would be reached on an end to the war.

Prime Minister Netanyahu described this proposal as “delusional” and instead pledged to push on for “total victory” over “all of Hamas”.

and the failed Mayorkas impeachment

Something about the conservative mindset that’s been true for a long time: They’d rather focus on good and bad people than good or bad policy. So a scapegoat or a savior is more important than a plan to make things better. (You can see this happening in the presidential campaign: The point is to glorify Trump and promise that everything will be better after he’s back in power. But what will he do differently than Biden? Don’t worry about that.)

Case in point: The border. The Senate negotiated a tough bipartisan compromise to try to improve things at the border, but then Trump and his minions rejected it without any alternative proposal beyond “Elect Trump”. Simultaneously, House Republicans tried to impeach the secretary of Homeland Security, Aleyandro Mayorkas, for not solving the problems at the border. So: We don’t need new policies or new funding, we just need to punish somebody we don’t like. That’ll fix everything.

There are really no grounds for impeaching Mayorkas: no criminal activity, no personal scandals, etc. He’s just overseeing a badly broken immigration system that Congress has been refusing to fix for decades. All the problems would still be there if he were gone.

Not to worry, though, because in the end Speaker Johnson counted his votes wrong, and the impeachment failed 214-216. This kind of thing never happened to Nancy Pelosi: If she brought something to the floor, she had the votes to pass it.

Republicans are going to try again, though, because Rep. Steve Scalise may return soon from cancer treatment, and because they have nothing else to do.

Meanwhile, the Senate is trying to repair the damage done when Trump turned against the border/Israel/Ukraine compromise that was set to pass. Originally, the parts of the bill dealing with the border were put in because Republicans demanded them as a price for Ukraine aid. (Otherwise, they seem content to let Putin take over Ukraine. One fascist hand washes the other, I suppose.) But then Trump decided that solving a problem (which his party keeps saying is an existential crisis for our country) would give Biden a victory and help him claim that he is actually governing. Can’t have that, so the bill had to die.

So a bill with just Israel and Ukraine aid is moving through the Senate, having jumped a couple of procedural hurdles this week. (Bizarrely, Lindsey Graham wants to add amendments with border funding, creating a Groundhog Day causal loop.) It might move faster, but Rand Paul is blocking the unanimous consent necessary to vote sooner.

and you also might be interested in …

Yesterday, two pro-Christian Super Bowl ads promoted the slogan “He gets us” — “he” being Jesus. This campaign has been around for a while, but it seems that many people noticed it for the first time yesterday. The leftist magazine Jacobin traced the money. It comes from the billion-dollar Servant Foundation, which also has contributed $50 million to the Alliance Defending Freedom. The “freedoms” ADF defends are the states’ right to take over women’s healthcare decisions, and businesses’ right to discriminate against LGBTQ people.

So maybe the “us” in “He gets us” isn’t as all-encompassing as the ads make it sound.

Meanwhile, my social media feed was blowing up with the observation that If Jesus had that many millions on hand, he would probably use it to feed the poor rather than to buy Super Bowl ads. It does seem like a rather mysterious way for the Lord to work.

It was widely reported before the game that Tucker Carlson threatened to kill himself if Taylor Swift’s boyfriend’s team won the Super Bowl. (The claim appears to be false.) Yesterday, Travis Kelce’s Chiefs did win, starting a Tucker death watch.

Speaking of Tucker, he interviewed Russian dictator Vladimir Putin for two hours and posted the video to the web.

Unfortunately for Tucker’s career, which has gone into eclipse since Fox News sacked him, Putin did what dictators often do: gave a long boring speech that few Americans will be interested in. Putin has this theory of history, going back to the Middle Ages, saying that Ukraine is not really a country and has no right to exist separate from Russia.

It’s not hard to imagine King George making a similar speech about his 13 American colonies, so Americans are unlikely to be persuaded. To Americans, nationhood is a covenant between people, and is not based on some essentialist theory about race, language, and culture. If a bunch of people get together and declare themselves a nation, who are you to tell them they’re not?

Anyway, it appears that the point was to impress Russians with how seriously Putin’s ideas are taken by Americans, and not to actually convince American viewers of anything. It was an internal propaganda victory similar to the victory Kim Jong Un got by meeting with Trump.

Prior to the interview, Tucker put out a video defending his decision to do it. I have no real argument with the points he was making, but I think he was making them in bad faith: Yes, Americans should hear from voices that the American mainstream paints as villainous, but those people should be asked hard questions, challenged when they lie, and fact-checked afterward. Tucker did none of that.

Also, I suspect he won’t apply his reasoning evenly. For example, the same logic would lead him to interview the leaders of Iran and the Taliban, something I suspect he won’t do. He interviewed Putin not for any noble journalistic reason, but because he supports Putin.

Climate scientist Michael Mann won his defamation lawsuit against two conservative critics. He was awarded only $1 from each in compensation, but one of the two was hit with $1 million in punitive damages.

and let’s close with something in bad taste

Everybody who tries to cook has had the experience: You look at a recipe, have high hopes, and then something else happens entirely. In the end, you see that the outcome was completely predictable, but somehow that wasn’t obvious beforehand.

Well, you can always laugh. The Tasty Area website has collected extreme kitchen fails that will make you feel brilliant by comparison. My favorite is the guy who cooked his pasta from both ends at once.

February 12, 2024 – 11:55 am Categories: Weekly summaries | Comments (15)

About Biden’s Age and Memory

Don’t be stampeded into freaking out.

The Hur Report. Thursday, Special Counsel Robert Hur released a 388-page document reporting on his investigation into classified documents President Biden returned to the government after they were found among his papers at the University of Delaware and in his home. The conclusion of that report is in its first line:

We conclude that no criminal charges are warranted in this matter. We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.

In a report that followed Department of Justice traditions and guidelines, that would be the headline: We looked for evidence of prosecutable crimes and didn’t find any. For comparison, the special prosecutor tasked with investigating classified documents found in former Vice President Pence’s home also decided (last June) that no charges were warranted. The NBC News headline was “DOJ closes Pence classified documents investigation with no charges“.

The second paragraph of such an article would have quoted Hur outlining the difference between this case and former President Trump’s classified documents case:

It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.

Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview. and in other ways cooperated with the investigation.

But the Hur report was covered very differently, because in addition to summarizing his investigation, Hur also gratuitously speculated on how Biden would defend himself at a trial.

In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute. When Mr. Biden told his ghostwriter he “just found all the classified stuff downstairs,” he could have been referring to something other than the Afghanistan documents, and our report discusses these possibilities in detail.

We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.

Throughout, the document casts inappropriate and unnecessary aspersions on Biden’s memory and mental processes.

Mr. Biden’s memory also appeared to have significant limitations-both at the time he spoke to [ghostwriter Mark] Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.

Thursday night, MSNBC’s Chris Hayes commented on how needlessly editorialized this was: Painfully? Who was supposed to be in pain? Ordinary human difficulties — struggling to interpret handwritten notes from years ago, or speaking slowly when you are trying to get something exactly right — are cast in the light of disability. The report then continues:

In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (“if it was 2013 – when did I stop being Vice President?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still Vice President?”). He did not remember, even within several years, when his son Beau died.

This, again, paints something perfectly ordinary in a negative light: There’s no indication that Biden has really forgotten “when he was vice president” or “when his son Beau died”, just that he sometimes attaches the wrong year-numbers to these memories. This happens to me (and to Paul Krugman) all the time. A frequent exchange with my wife is “When did we move here? 2018? 2019?” And then we work it out because she was turning 65 and wanted to start Medicare in Massachusetts. Same thing with my father’s death: I know his birth year and that he lived to be 90; that’s the only way I remember what year he died. But I have not at all forgotten “when my father died”; I can tell you precisely where I was and what I was doing.

In general, I remember the years personal events happened only if I’ve had to list them on a resume. (Krugman gives the example of recalling the year his mother died: He figures it out by remembering when he left Princeton for CUNY.) Otherwise, I have to think about it. That’s been true all my life and has nothing to do with aging.

If you can’t identify with those examples because your memory works differently, let me try an analogy: It’s like the difference between forgetting the dates of the Civil War (1861-1865) and forgetting the Civil War. (“Like, didn’t a bunch of states secede once or something?”)

It’s hard to argue with Krugman’s conclusion that the report was written by somebody who knows that Republicans want to make a political issue out of Biden’s mental acuity and wants to help them do it. Hur’s legitimate conclusions as an investigator are of no use in this regard, so he contributes in other ways.

Contrast Hur’s behavior with Jack Smith’s. Smith has played it by the book: He has investigated alleged crimes, and when he has found sufficient evidence, he has presented that evidence in indictments. Does he know other embarrassing details about Donald Trump’s life? Quite possibly. But if they’re irrelevant to the crimes he’s indicting, he doesn’t talk about them.

For example, back in December there were reports in the press that Trump literally stinks “of armpits, ketchup, and butt”. Has Smith’s investigation turned up anything related to that? He hasn’t seen fit to tell us, because reeking is not an indictable crime.

There’s a reason the Justice Department has standards about this kind of thing. Criminal investigation is one of the most invasive things our Constitution allows the government to do. So unless the investigation turns up something actually criminal, investigators should remain circumspect about what they think, and certainly should not use the authority of their investigation to defame or denigrate people they are not prosecuting.

The Egypt/Mexico mistake. Biden was understandably angry with Hur’s report, and held a press conference to say so. Unfortunately, as he was walking out of the room, he took one more question about an unrelated subject: his efforts to negotiate a release of the hostages Hamas is holding. Responding off-the-cuff, he said this:

I’m of the view, as you know, that the conduct of the response in Gaza — in the Gaza Strip has been over the top.  I think that — as you know, initially, the President of Mexico [Egypt], El-Sisi, did not want to open up the gate to allow humanitarian material to get in.  I talked to him.  I convinced him to open the gate.

I talked to Bibi to open the gate on the Israeli side.  I’ve been pushing really hard — really hard to get humanitarian assistance into Gaza.  There are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying, and it’s got to stop.

OK, I’m biased to like this statement, because Biden’s views on the Gaza War have shifted in the same direction as mine. (See what I wrote last week.) But there is that mistake: He said “Mexico” when he meant “Egypt”. (Notice: He got the name of Egypt’s president right. So he clearly knew what country he was talking about.)

People have tried to draw a lot of conclusions from this mistake, but again, I do stuff like that all the time. So does Trump. In this clip, for example, he says, “We’re going to defund our freedoms.” (Presumably he meant “defend”.) In this one, he recalls (falsely) what he did after the World Trade Center was attacked on seven-eleven. More recently, he said “Nikki Haley” when he meant “Nancy Pelosi”.

I think most people do stuff like this from time to time: You reach into your mental bag of words in a category, and you come out with the wrong one. (In Biden’s case, the category is “countries on the other side of some significant border”. In Trump’s it’s “women who get in my way.”) Speaker Mike Johnson made a comparable mistake on Meet the Press a week ago yesterday. “We passed the support for Iran many months ago.” (He meant Israel, another Middle Eastern country beginning with I.) Johnson is 52.

Aphasia vs. dementia. Obviously, this kind of mistake happens more often as people get older. I have a lot of experience with this phenomenon, because in his later years, my Dad developed a far worse case of aphasia than anything Biden or Trump have demonstrated. Eventually, it reached the point where he called every meal “lunch”.

But it’s important not to confuse aphasia (problems recalling words) with dementia (problems grasping the situation). For example, Dad saying “lunch” did not reflect any confusion about what time of day it was or when he had eaten last. “Lunch” was just the easiest meal-word to find. (On a road trip, we went to “lunch” first thing in the morning, before getting on the highway. Dad ordered breakfast.)

You might worry that dementia is a natural progression from aphasia, but that’s not how it works. There’s a relationship, but the causality runs in the other direction: Problems in your thinking will lead you to use inappropriate words. But in general, pulling the wrong word out of memory (or no word at all) doesn’t screw up your thinking. So Dad’s aphasia kept getting worse, but he knew who he was, where he was, what he was doing, and who I was all the way up to his last days. (I remember one extreme example: Dad wanted a tool for some home maintenance project he was doing. He couldn’t come up with the name of the tool, the store he wanted to go to, or the street it was on. So he told me to get in the car, and then gave instructions — turn left, turn right — taking us directly to the paint store. He got the tool, we drove home, and he continued his project.)

So I cringed when I heard Biden say “Mexico”, but only because I knew how people would react. His misstatement did not at all cause me to worry that he did not grasp the world situation, or that he would start using the powers of the presidency in some delusional way.

Trump, on the other hand, has lived in a delusional world for decades. In his world, he has always been right, people oppose him because of some inexplicable hatred unrelated to his behavior, he has a mystical “strength” that causes the world to warp around him, his personal charm changes the behavior of dictators, and his wealth comes from mastering “the art of the deal” rather than via a vast inheritance and a lifetime of fraud.

I do not worry that Biden will begin basing his presidential decisions on the kinds of crazy things Trump says all the time: He won’t start pushing quack cures like ivermectin and hydroxychloroquine, or suggest that doctors look into injecting bleach. He won’t “fall in love” with a psychopathic killer like Kim Jong Un, or decide that Vladimir Putin is more trustworthy than the FBI. He won’t try to change the direction of a hurricane with his sharpie. He won’t claim that windmills kill whales. And he won’t encourage Russia to attack our NATO allies.

Biden will undoubtedly continue to say the wrong words now and then. But I can live with that, because I trust him (and not Trump) to stay rooted in the real world.

If things were worse than that, how would we know? There would be defectors from inside the Biden administration. Unlike Trump, Biden isn’t the focus of a personality cult. People who work with him may like Joe Biden, and they may feel a certain loyalty to him, but they are primarily Americans and Democrats rather than Biden-worshippers. If something were wrong with him that endangered the country and threatened the goals of the Democratic Party, at least a few insiders would come out and say so. Cabinet secretaries, speech writers, White House aides … they’d hate doing it, but at least a few of them would: “It’s worse than it looks,” they’d say. “We have to do something.”

But look around. That’s not happening. The people disparaging Biden’s competence are precisely the people who don’t work with him, the people who wouldn’t know. Even Republicans, like Kevin McCarthy, come out of their dealings with Biden saying that he’s sharper than you think.

What should Biden and the Democrats do? Immediately: nothing.

These last few days, pundits of all sorts have been trying to stampede Biden into resigning or Democrats into abandoning him. This is crazy: Biden has been a very good president and there’s no reason to think he won’t have an equally good second term, despite the unforgivable sin of saying “Mexico” when he meant “Egypt”.

On the flip side of that panic, it’s tempting to want to make some dramatic gesture to prove how sharp Biden is. But that’s likely to be counterproductive in the same way that Richard Nixon saying “I am not a crook” was counterproductive. “I don’t have dementia” is exactly the kind of thing somebody with dementia would say.

Immediately, Biden should let the wave of hysteria pass. Get on with governing. Give a good State of the Union address. Keep working on a truce in Gaza. An oval office message about something else entirely — the importance of not letting Ukraine fall to Russia, for example — would help.

After the dust settles a little, Biden should sit for more one-on-one interviews, like this one he did with John Harwood ten days before his interview the special counsel. When you watch this kind of exchange, you quickly realize that Biden has a mental dexterity Trump lacks: He can listen to a question, process it, and produce a thoughtful answer germane to what was asked. Asking Biden a question is like playing catch: You throw him a question, he fields it, and throws an answer back. But asking Trump a question is like bouncing a rubber ball off an irregular stone wall: It will ricochet quickly, but in a direction that doesn’t seem to have much to do with your throw.

And finally, Biden needs to laugh. This is tricky, but Ronald Reagan pulled it off. When a questioner raised the age issue during a debate with Walter Mondale in 1984, Reagan made a solemn pledge:

I will not make age an issue in this campaign. I am not going to exploit for political purposes my opponent’s youth and inexperience.

February 12, 2024 – 9:24 am Categories: Articles | Comments (28)

Tagged |

The Monday Morning Teaser

In a week in which the DC Appeals Court ruled against former President Trump’s claim of “absolute immunity”, the biggest headline ended up being about Biden: Special Counsel Hur’s report found no crime worth indicting in his retention of classified documents, but threw the Trump campaign a bunch of red meat anyway by gratuitously opining on Biden’s age and memory. That produced a firestorm of speculation about Biden’s mental competence, which he exacerbated in a press conference by saying “Mexico” when he meant “Egypt”.

It’s been weird watching how Biden’s mistakes are covered differently from Trump’s. After all, how can you fault Trump for saying the wrong word (which he does all the time), when the words he intends to say are so evil, like calling immigrants “vermin”, or encouraging Russia to attack our NATO allies.

Anyway, it turns out I know something about people who use the wrong words as they get older. Aside from doing it occasionally myself (as most people of all ages do), I dealt with my Dad in his final years, when he had an extreme case of aphasia. Aphasia (inability to find the right words) can look like dementia (inability to think clearly), but it’s completely different, and anybody who has dealt with aphasic people can easily distinguish between the two. To sum up today’s featured post: Biden’s problems with words do not bother me. I think Democrats should let this wave of pundit hysteria pass and get on with the task of saving democracy from fascism.

That post should appear shortly.

That leaves the weekly summary a lot to cover: the appeals court ruling and what it means for Jack Smith’s DC indictment, Israel pushing its attacks into the last refuge of most Gazans and the Biden administration’s slow separation from the Netanyahu government, Trump outdoing himself with outrageous comments about NATO and Haley’s husband’s military deployment, Tucker Carlson’s Putin interview, the Jesus ads in Super Bowl, and a few other things.

That has to be out by noon, because I’ve got stuff to do today.

February 12, 2024 – 8:46 am Categories: Morning tease | Comments (3)

Power and Restraint

Of all manifestations of power, restraint impresses men the most.

– misattributed to Thucydides

This week’s featured post is “Gazan Lives Matter“.

This week everybody was talking about the widening war

This feels like one of those recurring nightmares where you know what’s going to happen, but can only watch as it does. Biden responded to last week’s attack on a US outpost in Jordan by hitting Iran-backed militias in Iraq and Syria, as well as continuing to bomb Houthi rebels in Yemen. It is simultaneously impossible to imagine (1) the US government doing nothing after American soldiers are killed, and (2) our counterattacks achieving anything.

On the one hand, Biden would surely be facing a political firestorm even bigger than the current one if American soldiers died and he did nothing. But I can’t imagine that the groups we’re striking are saying, “Wow, we need to stop what we’re doing.” A third alternative would be to hit the source, Iran, but that looks even worse to me.

In a different century, the great powers would get together in some grand conference with everything on the table. I’m not sure why that couldn’t happen now.

and sabotage in Congress

When Democrats run against Republican congressmen in the fall, their hardest task is going to be convincing voters that the Republicans really did what they’re doing right now. A lot of voters will listen to a true account and just say, “No. Surely not. You must be exaggerating.”

So Ukraine, which is fighting for its life against an invasion by Trump’s buddy Putin, needs weapons from us to defend itself. At first, supplying them was a bipartisan priority, with only some extremists like Matt Gaetz holding out. Then about half of the Republican conference turned against Ukraine aid, and Speakers McCarthy and then Johnson decided Ukraine aid was a hostage they could get Biden to pay some ransom for. Their rhetoric paired Ukraine with our own problems at the Mexican border (something like “Why are we paying for Ukraine to protects its borders when we’re not protecting our own?”), even though the two really have nothing to do with each other.

The result was a three-part package including Ukraine aid, aid to Israel, and money to better protect the border. Republicans decided that wasn’t enough, so they insisted on policy changes in addition to money. The Senate negotiated a bipartisan compromise, which included most of what Republicans had been asking for.

But then Trump turned against it, because passing any border legislation at all would allow Biden to say that he has done something about the border. So: It’s a terrible, terrible crisis, but let’s not do anything about it, because any problem that gets solved (or even addressed) while Biden is president will make it harder to unseat him in November.

In other words: The border is just a talking point for Republicans. They don’t actually want to do anything about it.

Even with Trump’s opposition, a majority of the House probably supports this Ukraine/Israel/border bill. So Speaker Johnson has decided not to hold a vote on it. Instead, the House will vote on a stand-alone Israel-aid bill.

Even after Trump is out of office, Putin continues to reap benefits from helping him get elected.

With all the border rhetoric, it’s hard to sort out what is really happening and how serious it is. The Big Picture blog does a good job with that.

and Biden’s South Carolina victory

Remember how “nobody really likes Biden” and “nobody wants to see a Biden-Trump rematch”? Well, Saturday in South Carolina, actual Democratic voters got a chance to cast a protest vote against renominating Joe Biden. They didn’t. Biden got 96.2% of the vote, with Dean Phillips and Marianne Williamson splitting the remainder.

Now, you can say that those aren’t real candidates, not like Gavin Newsom or Gretchen Whitmer or whoever your favorite Democrat might be. But if you wanted more choices in the election, the way to ask for them was to vote against Biden. Not many people did.

If Phillips and/or Williamson had gotten 30-40% of the vote, we’d be having different conversation, as the Democrats did in 1968. (LBJ won the New Hampshire primary 48%-42% over Gene McCarthy, but he looked at the level of resistance he was facing and dropped out.) The press would be approaching other prominent Democrats asking “Are you sure you don’t want to step in?” But the electorate seems to have no real appetite for that.

James Fallows reviews the long series of “Biden is doomed because …” narratives mainstream media has given us, and how they’ve fared.

We’re at a point where the polls will tell you whatever you want to hear. Want to believe Biden is in trouble? CNN has Trump ahead 49%-45%. Want to believe Biden is doing fine? Quinnipiac says Biden is ahead 50%-44%.

Personally, I remain optimistic, though I won’t fully relax until I’m listening to Biden’s second inaugural address. My general impression is that public sentiment is more-or-less even right now, but that Biden has a better story to tell going forward: The economy is doing quite well, and was in terrible shape when Trump left office. (You don’t have to blame Trump for the pandemic shutdown to realize that Biden was handed a tough situation.)

Biden will protect a woman’s right to make her own health-care decisions, and Trump won’t. Biden has taken action against climate change; in a second term he would do more, while Trump would undo what Biden has already done. Biden has strengthened the NATO alliance, which Trump had nearly wrecked. Biden has fulfilled some of the same promises that Trump made but couldn’t deliver on: He got Congress to approve money for rebuilding our infrastructure. He got us out of Afghanistan. He has made investments to help American industry compete with China.

Plus, he has achieved some noteworthy liberal goals: The percentage of Americans without health insurance is at an all-time low. The expansion of the child tax credit in Biden’s 2021 American Rescue Plan reduced the childhood poverty rate to an all-time low. (Biden tried to make the credit permanent, but Congress wouldn’t go along, so the rate rebounded after the credit expired. The pending bipartisan tax bill would reinstate it at a lower level.)

And that’s even before you start looking at Trump’s personal issues: It’s been established in court that he is a sexual predator. His mental lapses (and general tendency to babble) is far worse than anything Biden has shown. Who knows how long he (and the judge he appointed) can delay the trial, but the evidence in the Mar-a-Lago case — that he took classified documents he had no right to, stored them sloppily, showed them to people not authorized to see them, and lied to the government when it asked for them back — is quite strong, and Trump has offered no credible explanation for it. (If his indictments were really the politically-motivated nonsense he claims, wouldn’t he be eager to get a jury of ordinary Americans to rule on them?) His effort to stay in office after clearly losing the 2020 election (the subject of another federal case as well as the Georgia RICO case) is one of the worst things any American president has ever done.

I think that for now a lot of Americans are withholding judgment about whether Trump is actually guilty — he is — or whether the charges are all politics, as he claims. As the cases proceed and the election gets closer, I think a bunch of those voters will turn to Biden.

One additional thing makes me hopeful: There will be a Republican Convention this summer. People will watch, and the MAGA folks will be scary. They can’t help themselves, because they believe their own propaganda that says they represent the real American majority.

Trump does have one outstanding talent that we have to watch out for: He’s very good at claiming credit and avoiding blame. Why is the stock market at a record high? Because investors are anticipating his return to office, of course. He doesn’t need to have a policy for dealing with the Gaza situation, because Hamas would be behaving itself if he were president, so the whole situation wouldn’t have come up. Ditto for the Ukraine War; it wouldn’t have happened if he’d been re-elected (which he still says he was), and he could solve it in 24 hours now, through some negotiating method that he needn’t elaborate on. Any claims he makes about “the Trump economy” conveniently ignore the fourth year of his term, when millions of jobs were lost and the deficit skyrocketed. A large part of what he is selling is a magical return to 2019; Covid was a bad dream that he will wave away with his amazing powers.

and Taylor

I had a Swift picture in last week’s Sift and didn’t really want to write about her again, but it’s hard not to. Last night she won the Album of the Year grammy, her fourth, a record.

Most of this week my social media feed was full of articles about the Right going nuts over Taylor and her boyfriend Travis Kelce, who will play in the Super Bowl Sunday as a star of the Kansas City Chiefs. I had a hard time deciding whether the Right was broadly going nuts, or if a few Trump cultists were going nuts and the liberal side of the media couldn’t resist a story that makes the Right look this bad.

It’s a little in between, I think. Apparently, the anti-Taylor reaction is a real thing in Trump’s inner circles, even though some conservative news sources recognize how crazy it is. And never-Trump-Republican Steve Schmidt raises a good question: How would you break the news to Trump that he’s not as popular as Taylor Swift?

A related story I should have covered when it came out two weeks ago was the AI-generated porn images of Swift, which circulated across various social-media platforms before most (but probably not all) of them were taken down. (I can’t tell you how easy they are to find now, because I’ve resisted the urge to look for them. Please don’t post links in the comments.) I don’t think anyone knows exactly who distributed these images or why, but it seems hard to believe that the timing is a coincidence: Swift runs afoul of MAGA, and then fake porn images of her circulate. Attacking the sexual reputation of a troublesome woman is a tactic as old as time. Jill Filipovic observes:

Swift is also a person who many on the right seek to humiliate, degrade and punish – the same aims as the creators of deepfake porn.

Undoubtedly we’ll see more of this, as AI-assisted image-processing tools get into more and more hands. The popular ones supposedly have safeguards against being used this way, but I don’t think it takes much know-how to circumvent those protections. We need to start thinking about how ordinary junior-high girls are going to fend off these kinds of attacks.

but here are some interesting articles to think about

The NYT Magazine has a thoughtful article about an atheist chaplain counseling an atheist inmate as he waits on death row for his execution.

There is an adage that says there are no atheists in foxholes — even skeptics will pray when facing death. But Hancock, in the time leading up to his execution, only became more insistent about his nonbelief. He and his chaplain were both confident that there was no God who might grant last-minute salvation, if only they produced a desperate prayer. They had only one another.

Personally, I am not an adamant there-is-no-God atheist, but I’m also not anticipating any particular afterlife. I’ve watched both believers and non-believers face the reality of death, and I can’t see that it makes any real difference in how well they deal with the experience. One misperception I think a lot of believers share, though, is that idea that unbelievers could believe if they just wanted to. I don’t think it’s that simple. Some things, to some people, are just unbelievable.

I will add that I would much rather go to a nonsectarian funeral than one based in a religion with a lot of dogma. Too often, church funerals are more about propping up the dogma than about the life of the deceased. If we’re just going to talk about Jesus and Heaven and God’s plan, it could be anybody in the casket.

Eric Klinenberg previews some ideas from his forthcoming book on 2020 “the year everything changed”, by claiming that we’re not fully appreciating what the pandemic did to us: It isn’t just that people died and the rest of us missed out on a lot of experiences. More fundamentally, the pandemic shook our faith in our whole society.

I’ve come to think of our current condition as a kind of long Covid, a social disease that intensified a range of chronic problems and instilled the belief that the institutions we’d been taught to rely on are unworthy of our trust. The result is a durable crisis in American civic life. … [L]oneliness was never the core problem. It was, rather, the sense among so many different people that they’d been left to navigate the crisis on their own. How do you balance all the competing demands of health, money, sanity? Where do you get tests, masks, medicine? How do you go to work — or even work from home — when your kids can’t go to school?

The answer was always the same: Figure it out. Stimulus checks and small-business loans helped. But while other countries built trust and solidarity, America — both during and after 2020 — left millions to fend for themselves.

Last year, Mary Wood got reprimanded for teaching Ta Nahisi Coates’ book Between the World and Me in her AP English class in Chapin, SC. This year, she has read all the relevant rules, checked all the boxes, and is trying again.

To me, Wood represents a living refutation of the “Great Man” theory of history. When big waves wash across society, like the anti-woke movement of the last few years, lots and lots of ordinary people either resist or submit. And that’s what determines how it all shakes out.

Remember when rising healthcare spending was going to swamp our whole economy? Something happened right about the time ObamaCare kicked in — claiming cause-and-effect is probably a bit much at this point — and healthcare’s percentage of the economy leveled off.

and you also might be interested in …

The Trump trials are still mostly on hold while we wait for judges to decide things. Reporters keep telling us that something could happen any minute on a variety of topics, but I’m going to wait until something actually happens before I comment again.

Ukrainian drones sunk a Russian guided-missile corvette in the Black Sea a few days ago, and released some amazing video afterward.

Idaho was trying to repeal its ban against public subsidies for religious schools, and then a spokesman for Satanic Idaho spoke in favor of the bill.

I look forward to the opportunity to be able to start a Satanic K-12 performing arts school, and being able to have access to the same funds that any other religious school would have.

Apparently the proposal is on hold now. God alone knows when we’ll get to see that Satanic performing-arts school.

Pregnancy from rape has long been a headache for the anti-abortion movement. If some man forces you to have sex, you get pregnant, and then the government forces you to spend nine months turning your rapist’s DNA into a baby — that doesn’t sound much like “freedom”, does it? And even if the man eventually gets sent to jail, his genes have already won the struggle to survive for another generation. So the government has validated rape as a viable evolutionary strategy.

Over the years, forced-pregnancy defenders have dealt with this problem in a variety of ways. Back in 2012, US Senate candidate Todd Akin just denied it altogether: Rape pregnancies don’t really happen, he claimed, because

If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.

Sadly for him, that appeal to biological wishful thinking didn’t go over well, and he lost a very winnable seat in Missouri to Claire McCaskill by 15%.

Also in 2012, Senate candidate Rich Mourdock of Indiana confronted the challenge in more religious terms:

I struggled with it myself for a long time, but I came to realize life is that gift from God, and I think even when life begins in that horrible situation of rape, that it is something that God intended to happen.

But that didn’t fly either. PIcturing rape as just another one of God’s mysterious ways, and even implicitly suggesting a woman ought to be grateful for a “gift” that bears an unfortunate resemblance to her worst nightmares — it was too much of a stretch, even in a heavily Evangelical state like Indiana. Mourdock lost to Democrat Joe Donnelly by 6%, and the Republicans missed their shot to control the Senate.

By 2021, then, Republicans had learned a few lessons. So after a six-week abortion ban with no rape exception took effect in Texas, Governor Greg Abbott came at the issue from a different angle, one more in line with the GOP’s tough-on-crime image: Forced pregnancy wasn’t going to be a problem for much longer, because Texas was going to eliminate rape. How could any feminist be against that?

Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them

So how’s that been working out? According to a study published in the medical journal JAMA Internal Medicine, not so well. Austin TV station KXAN explains:

According to their study, 26,313 rape-related pregnancies occurred in Texas during the 16 months after the state legislature banned abortion. That figure comprises nearly 45% of all such pregnancies estimated to occur among the nine ban states that did not make a legal exception for rape.

That’s 26K Texas women who have had their most basic freedoms taken away from them.

Here’s a suggestion for Governor Abbott: How about trying this in the opposite order? Eliminate rape first, and then the grateful women of Texas might be ready to listen to your ideas about abortion.

While we wait for the Supreme Court to rule on Trump’s eligibility for office, consider the legislator-eligibility case in Oregon: The rules of the state senate require a 2/3rds quorum to do any business, which means that a minority of senators can delay any bill they don’t like by just not showing up.

Republicans have been the minority in Oregon for some while, so walkouts are seen as a partisan tactic. Jay Kuo notes

Republicans in Oregon began walking out in 2019 and didn’t really stop. They did it again in 2020, and again in 2021. By summer of 2023, they had walked out a total of seven times in four years.

In 2022, voters overwhelmingly passed Measure 113, which says that legislators with 10 or more unexcused absences are ineligible for reelection. But in 2023, Republicans shut down the senate for six weeks to stop an abortion-rights law. As a result Secretary of State LaVonne Griffin-Valade ruled ten of the 11 Republican senators ineligible to appear on the 2024 or 2026 ballot.

The Republicans sued, and Thursday the state supreme court unanimously upheld the exclusion. So it can happen. As Kuo notes, there’s no reason some other Republican couldn’t win one of those 10 seats.

But it might give serious pause to any future senator thinking about walking out but actually planning to stay in office longer than one term.

Judd Legum’s Popular Information blog documents just how far off the deep end Moms for Liberty have gone and how crazy the response has been in Florida. The Indian River County school district has begun drawing clothes onto naked characters in children’s books, including Maurice Sendak’s In the Night Kitchen. The book was published in 1970 and was named a Caldecott Honor Book, but apparently it’s been corrupting Indian River children for the last half century. The whole article reads like parody, but I don’t think it is.

While we’re talking about Florida, the state where American freedom goes to die, Gov. DeSantis is backing a law to make lab-grown meat illegal. A senator promoting the bill, Jay Collins of Tampa, gives this odd justification:

Let’s look at what you’re doing here. You’re growing cells in a cultivated petri dish and creating protein to eat. There are many ethical boundaries that this steps in and frankly, over.

I mean, if you believe cattle-raising is an important industry that state government ought to protect from competition, that’s at least a coherent thought that reflects certain political realities. But the whole point of lab-grown meat is for people to be able to eat a hamburger without participating in the death of a conscious being, and (one hopes) without the strain our meat habit currently inflicts on the environment. And that’s unethical? Plus: Of all the lab-produced things that wind up in our food, this is the one that bothers you?

The group that got the Supreme Court to outlaw affirmative action in civilian universities now has a lawsuit challenging affirmative action at West Point, the Army’s primary officer-training institution. Students for Fair Admission has been seeking a restraining order that would stop race-based admission practices at West Point until the lawsuit could be resolved. Friday, the Supreme Court denied that request in a terse order saying that “the record before this court is underdeveloped”, and giving no hint as to its views on the merits of the case. Vox’ Ian Millhiser elaborates.

the Supreme Court has historically shown a great deal of deference to the military. As the Court said in Gilligan v. Morgan (1973), “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence” than questions involving “the composition, training, equipping, and control of a military force.” … So there’s a real chance that this Court, despite its recent opinion in Harvard, could decide that the judiciary’s long tradition of deferring to the military on personnel and related matters should continue to hold in the West Point case.

The military has long been a bit ahead of the rest of the country on racial issues. For example: An executive order from President Truman in 1948 said:

It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.

Brown v Board of Education, the Supreme Court case that struck down “separate but equal” public schools, didn’t happen until 1954, and segregation in public accommodations (i.e., businesses open to the public) wasn’t banned until the Civil Rights Act of 1964.

and let’s close with something cool

I have no idea when or whether the Aptera solar-powered car will hit the market. But it’s fun to look at.

February 5, 2024 – 12:13 pm Categories: Weekly summaries | Comments (10)

Gazan Lives Matter

I don’t have a peace plan. I just want the destruction to stop.

One of the more intriguing stories in Genesis happens in chapter 18: God visits Abraham in human form, along with two companions. As he is about to leave, God lets Abraham in on a divine secret: He is about to destroy Sodom and Gomorrah. He tells his companions why he thinks Abraham needs to know about this:

Abraham will surely become a great and powerful nation, and all nations on earth will be blessed through him. For I have chosen him, so that he will direct his children and his household after him to keep the way of the Lord by doing what is right and just

Like many passages in the Bible, there are at least two ways to read this: Maybe Abraham needs to know how evil nations are punished, and to teach his children, so that the nation of his descendants will know better than to be like Sodom. [1] But the conversation develops in such a way as to allow a second interpretation. Abraham knows his nephew Lot lives in Sodom, and he worries that God will kill evil and good people indiscriminately. So he pushes back against God’s judgment.

Will you sweep away the righteous with the wicked? What if there are fifty righteous people in the city? Will you really sweep it away and not spare the place for the sake of the fifty righteous people in it? Far be it from you to do such a thing—to kill the righteous with the wicked, treating the righteous and the wicked alike. Far be it from you! Will not the Judge of all the earth do right?

Gods agrees that he should save Sodom for the sake of fifty. And then Abraham begins to bargain. What about 45 good people? Forty? Thirty? Twenty? Ten? Each time, God agrees. And then the text says only “When the Lord had finished speaking with Abraham, he left”, not telling us whether Abraham pushed no further or God cut the discussion short.

Again, there are at least two ways to read this: Maybe God already knows that there aren’t ten righteous people in Sodom, and he indulges Abraham because the concessions he grants are moot; he’s going to destroy Sodom one way or the other. Or maybe something else is happening. Maybe this conversation establishes the idea of acceptable and unacceptable levels of collateral damage. Maybe that’s the lesson that God is drawing out of Abraham, so that he can pass it down to the great and powerful nation of his descendants. [2]

I’ve been thinking about this a lot lately, as the world watches the city of Gaza be destroyed. [3]

Immediately after October 7, my sympathies were entirely with the Israelis. The coordinated attacks of that day, targeted at places of no military value, apparently aimed at killing and carrying off as many civilians as possible, could not be tolerated. The people who planned and carried out those attacks could not be allowed to sit in safety and plot another one. And Hamas is famous for using civilians as shields, so I accepted that an Israeli counterattack would kill some number of innocent Gazans.

But not any number of innocent Gazans.

As of January 20, this was the British Red Cross‘ assessment of the situation in Gaza:

  • Winter temperatures are putting the lives of 1.9 million displaced people at risk
  • 80% of the population faces severe food insecurity
  • The death toll in Gaza currently stands at more than 23,210, and 330 in the West Bank
  • 59,167 people have been injured in Gaza and 4,042 in the West Bank
  • Food and safe and adequate shelter are extremely scarce, with many families unable to eat a single meal a day and people setting up makeshift camps in the street.
  • Sanitation and public health conditions have seriously deteriorated, posing a high risk of disease outbreaks that could cause significant casualties. Heavy rain and flooding is affecting Gaza which adds to the risk of waterborne diseases.
  • The situation facing Gaza’s hospitals and those relying on their care is also dire. Hundreds of thousands of people in Gaza no longer have access to healthcare.
  • Nearly 85% of the total population of Gaza have been forced to leave their homes in precarious and unsafe conditions. Many of these people have been forced to move and seek new shelter several times.

The BBC adds details about property damage.

[S]atellite data analysis obtained by the BBC shows the true extent of the destruction. The analysis suggests between 144,000 and 175,000 buildings across the whole Gaza Strip have been damaged or destroyed. That’s between 50% and 61% of Gaza’s buildings.

I don’t want to make claims beyond my knowledge and expertise, so let me admit my limitations: I don’t know what alternative responses to October 7 were considered or were even possible. I don’t know what negotiations have happened behind the scenes, or what possibilities for peace have been offered. I don’t know how much influence the Biden administration has, or how it has tried to use that influence.

I also don’t know precisely what the Israeli government intended or how well that matches what the Israeli public wants. I do know that some elements of the Netanyahu government have genocidal intent. Some others, I suspect, simply don’t care: They (understandably) want Hamas gone and want Israeli lives to be secure; the number of Gazans who must die or have their lives shattered to achieve that goal does not matter to them.

I just want to say this: What we have seen is already too much. Gazan lives do matter.

I contrast what’s going on in Gaza with smaller-scale hostage situations, thinking not just of the Israeli hostages, but of the Gazan civilians who are simply in the wrong place. Police typically do not charge into such situations as if the survival of the hostages were not their responsibility.

I still have no sympathy with Hamas, and I continue to condemn what they did in October. But are there fifty righteous people in Gaza? It seems like there must be.

[1] What exactly made Sodom so intolerable to God is widely misunderstood. When God’s two angels (presumably the two companions Abraham met) arrive in the city, the men of Sodom want to rape them. So it’s often thought that Sodom’s sin had something to do with homosexuality, i.e., sodomy. But Genesis doesn’t explicitly say that, and Ezekiel says something else entirely:

Now this was the sin of your sister Sodom: She and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy.

So if your political plan involves cracking down on LGBTQ folks while kicking children off food stamps, you might want to reconsider.

[2] Apparently there is some history to this interpretation. I first ran across it in Adam Levin’s novel The Instructions, about a boy from Chicago who may or may not become the Messiah. The boy’s training is full of such rabbinical discussions.

Of course, you can contest this interpretation by pointing to the conquest of Canaan described in the book of Joshua, in which God orders genocide.

So Joshua subdued the whole region, including the hill country, the Negev, the western foothills and the mountain slopes, together with all their kings. He left no survivors. He totally destroyed all who breathed, just as the Lord, the God of Israel, had commanded.

Conflicts like this are a major reason most modern scholars read the Bible as an amalgamation of separate sources rather than as a narrative from a single point of view.

[3] Gaza’s history also goes back to Biblical times, and perhaps further. It was the Philistine capital where Samson was taken, blinded, and held prisoner. Gaza is where he killed himself and numerous Philistines by pulling down the Temple of Dagon. The Aldous Huxley title Eyeless in Gaza is an allusion to Samson.

February 5, 2024 – 9:20 am Categories: Articles | Comments (26)

Tagged |

The Monday Morning Teaser

As far as I know, nothing happened in Gaza this week that hasn’t been happening for months. But for some reason, this week it all became too much for me. I can’t watch it any more. It has to stop.

Of course, I have no power to make it stop, but at a minimum I can say something about it. But what? The temptation was to over-extend myself and lay out some six-point this-is-what-everybody-should-do plan. As if I know. I’ve done my best to resist that temptation.

Instead, the featured post this week is “Gazan Lives Matter”. It’s a simple cry of empathic pain. Tens of thousands of Gazans are dead from this war, and two million more are in the path of two other Horsemen of the Apocalypse, Famine and Pestilence. Too much of the discussion of this war continues as if their lives do not matter. That has to stop.

That article is almost done, and should appear around 9 or so EST.

The weekly summary is full of topics that events have forced on me: I didn’t really want to write about Taylor Swift again, or speculate about why court decisions on Trump are taking so long, or catalog the ways that the US is getting drawn into a wider war in the Middle East. The South Carolina primary established pretty firmly that Democrats have no appetite for replacing Joe Biden, so maybe we can stop talking about that. I added a section of articles worth thinking about; I think I’d like to make that a regular feature. I’ll try to get that out around noon or so.

February 5, 2024 – 8:28 am Categories: Morning tease | Comments (3)

America (if you can keep it)

As Trump left the courtroom after his testimony, he remarked loudly, “This is not America. Not America. This is not America.” The bad news for the former president is that it is. This is the America where the rule of law still holds and where he too is required to abide by it.

– Joyce Vance

There is no featured post this week.

This week everybody was talking about E. Jean Carroll

Friday, after about three hours of deliberation, a New York jury ordered Donald Trump to pay E. Jean Carroll $83.3 million: $7.3 million for the emotional distress Trump caused her, $11 million for the damage to her reputation, and $65 million in punitive damages. The punitive damages are there because Trump just won’t shut up about Carroll; a previous case that cost him $5 million hasn’t discouraged him from continuing to attack her in his rallies and on social media. Maybe, the jury figured, $65 million will be more effective.

I can’t quite imagine what audience Trump thought he was playing for in this trial: muttering during Carroll’s testimony, stomping out during her attorney’s summation speech, jousting with the judge, obsessively continuing the defamation over Truth Social during the trial, and so on. Obviously, this behavior didn’t impress the jury or endear him to the judge. I’ve got to think that most female voters are thinking: “He sexually assaults this woman, repeatedly drags her reputation through the mud, inspires his cultists to harass and threaten her for years … and he thinks he’s the victim.” I suppose some men might be happy that some other man is finally standing up to all the uppity women in the world, but I doubt they’re a winning political coalition.

And of course, the main thing Trump’s antics did was draw attention to the case, which (to put it mildly) does not cast his image in the best light. He has reminded us not just of Carroll’s accusations (which now, in the State of New York, legally have to be considered facts), but also of all the other women who have told similar stories about him and stuck by them, and of the Access Hollywood tape, where he bragged that he can grab women by the pussy and get away with it.

I mean, if you want to badly enough, I suppose you can believe that all 26 women (who have no apparent connection other than being women) are lying, and that Trump’s taped confession was just “locker room talk” to impress Billy Bush. But seriously. After you’ve tied your brain into a knot like that, can you do anything else with it?

In his first response to the verdict on Truth Social, Trump posted: “THIS IS NOT AMERICA!” Joyce Vance has the right response:

The bad news for the former president is that it is. This is the America where the rule of law still holds and where he too is required to abide by it. I look forward to more of this.

Lots of people are wondering whether Carroll will ever see this money or if Trump will ever pay it. What you may not realize is that those are two different questions. Consider the $5 million a jury awarded Carroll last year. Trump is appealing that verdict, so Carroll hasn’t gotten the money yet. But Trump has had to pay it: He posted the money to a court-controlled account that will be distributed to Carroll after Trump runs out of appeals, assuming none of them succeed.

So no matter how long Trump strings out this $83.3 million verdict, he’s going to have to put up a big chunk of the money fairly soon.

I often point out when Fox News ignores some story that breaks its preferred narrative, so I have to give it credit here. Shortly after the verdict was announced, I flipped over to Bret Baier’s show, where famous torture-memo lawyer John Yoo commented:

The whole point of this unprecedented damages is to tell Donald Trump to shut up. … It’s not just that he should stop insulting Jean Carroll, but he has to stop disrespecting the justice system.

Their take wasn’t terribly different from the one I was hearing on MSNBC and CNN.

I can’t believe I’m writing this, but we’re waiting on judges to rule in two more serious Trump cases. I mean, any other politician in the country would be ruined by the jury verdicts in the Carroll case, but that case is less “serious” because it only concerns Donald Trump’s behavior as an individual, and doesn’t directly affect the institution of the presidency or the rule of law in the United States.

In the Carroll case, I stand at a distance and reflect on one man’s shameless lack of any moral code. But Trump’s sweeping claim of presidential immunity could determine whether I continue to live in a democracy. That claim arose in an attempt to delay Trump’s federal January 6 trial, previously scheduled to being in March. The case can’t proceed until the legal system decides whether Trump can be tried at all.

At first, it looked like the appeals court wanted to get this done quickly. They held a hearing on January 9, and all three judges seemed skeptical of the whole immunity idea. But nearly three weeks have gone by without a ruling. MSNBC legal blogger Jordan Rubin speculates what might be going on: The court would like to present one unanimous opinion, with agreement on the justification and not just the outcome. That would make a clearer statement to the public and stand up better if it’s appealed to the Supreme Court. But the judges are having trouble ironing out their differences.

The other judge we’re waiting on is Arthur Engoron, who is expected to make a ruling on the New York civil fraud trial against the Trump Organization sometime in the coming week. As in the Carroll trial, Trump’s guilt has already been established in a summary judgment, and the recent trial was just to assess damages. The NY attorney general is asking for a $370 million payment and restrictions on the Trump family’s ability to do business in New York.

As noted above, Trump can still appeal a judgment he doesn’t like, but he can’t avoid putting up a large sum of money while appeals play out.

Also pending is whether or not Trump is disqualified from holding the presidency again by the 14th Amendment’s insurrection clause. The case has made it to the Supreme Court, which will hearing arguments on February 8.

Deborah Pearlstein urges the Court to give the country a clear answer to the hard questions, rather than find an easy way out.

No matter what the Court does next, its popular legitimacy will be sorely tested. Tens of millions of Americans are going to believe that it got the answer wrong, and that the result of the 2024 election is at best unfair because of it. Punting will only make already bad matters for American constitutional democracy worse. For there is no legitimacy, or democratic stability, in governing institutions that do nothing but race to see who can avoid taking responsibility for the hardest issues for the longest time. … In an era of rising antidemocratic sentiments in the United States and around the world, constitutional democracies have to be able to show that they are capable of fulfilling the most basic functions of governance. In this case, at the very least, that means deciding to decide.

She makes this interesting observation: The legal arguments for the various outcomes run counter to the justices’ political leanings. (For example: Conservatives typically favor an “originalist” reading of the Constitution, which would disqualify Trump.) So it would look very bad for the Court if the decision fell along the usual 6-3 partisan lines.

I heard on TV that the initial note from the Carroll jury used the abbreviation M, which they had to explain meant “million”. I was reminded of an exchange in the opening episode of The Beverley Hillbillies. Jed is explaining to his skeptical cousin Pearl that some city guy has bought his swamp for between 25 and 100 of “some new kind of dollars”. When Pearl protests that “There ain’t no new kind of dollars”, Jed asks: “What’d he call ’em Granny?”

And Granny says, “Milly-an dollars.”

News channels occasionally interview Trump’s former lawyers about what’s going on with his cases. Sometimes they are still on his side and sometimes not. But the networks never tell us a central piece of information for evaluating the lawyer’s opinion: Did Trump pay his legal bill or not? Is the lawyer talking about a paying former client or a deadbeat former client? Seems like that would make a difference.

and the Gaza War

The International Court of Justice made a preliminary ruling in the genocide case that South Africa has brought against Israel. Vox has a good summary.

The ICJ is the body specified by the Convention Against Genocide (a treaty signed by both Israel and South Africa) for adjudicating disputes about whether the parties are fulfilling their treaty commitments. As such, the ICJ ruled that it has jurisdiction to hear this case and that South Africa has standing to file it. Israel had asked the ICJ to dismiss the case without further investigation, which it declined to do. Instead, the ruling finds the South Africa’s claims “plausible”. Any final judgment will require a more detailed investigation and could be years away.

The ruling describes the dire conditions inside Gaza, and says

[T]he catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.

South Africa had asked for an injunction requiring an immediate ceasefire, which the court did not provide. It did place a number of limitations on Israel’s Gaza campaign, “to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”, and instructed Israel to preserve all evidence that could be relevant to a genocide investigation.

The immediate practical effect of the ruling is likely to be small, because ICJ rulings are enforced by the UN Security Council, where the US can veto any substantive penalties against Israel. But the ruling further isolates Israel and the US from world opinion.

Israel has charged that staff members of the main UN agency providing relief to Palestinian refugees were involved in the October 7 Hamas attacks. The exact claims have not been made public, but several employees were fired in response. The US and a number of other donor countries have paused their funding of the organization, further complicating the humanitarian crisis in Gaza. The agency, UNRWA, has about 13,000 employees.

The war continues to ooze outward, with a rising risk that the US will get drawn into a larger conflict with Iran. A drone hit a US outpost in Jordan early Sunday morning, killing three US soldiers and wounding more than 30. BBC summarizes the situation:

Since mid-October, US military installations in Iraq and Syria have repeatedly come under attack by Iran-backed militias, injuring a growing number of US soldiers. The US has repeatedly retaliated by striking targets in both countries.

Iran has denied involvement, but a group it supports, Islamic Resistance in Iraq, has claimed responsibility. President Biden has pledged to “hold all those responsible to account”.

The outpost is called Tower 22, and is in the far north-east corner of Jordan, near the border with both Syria and Iraq. It is part of a deployment of around 30,000 US troops in the region, mapped by CNN.

Trump is saying the kind of stuff he always says: Bad things wouldn’t happen if he were president, because he is “strong” while Biden is “weak”. But he hasn’t specified what he would do differently. He alternately sounds isolationist and like he would strike back harder.

and the border

This week House Republicans have been demonstrating why it’s so hard to work out any compromise with them: They don’t actually want anything other than power. Their apparent policy positions are just postures they strike for Fox News and for their base voters.

The Biden administration actually does want something: more military aid to Ukraine, which is fending off an invasion by Trump’s pal Vladimir Putin. Originally, Biden hoped to get that aid included in budget deal at the beginning of the fiscal year (October 1). Most Senate Republicans and about half of House Republicans claim to back Ukraine aid, but it didn’t make the first FY 2024 continuing resolution. Or the second one in November.

Back in October, Biden repackaged Ukraine aid with Israel aid, figuring that strong Republican support for Israel would put it over the goal line. But no deal. He included money for increased enforcement at the Mexican border, because Republicans appeared to care about that. No deal: Republicans said they wanted policy changes, not just more money.

OK, then. Biden and Senate Republicans have negotiated policy changes that cause Democrats some real heartburn:

Components of the deal include a new authority that allows the president to shut down the border between ports of entry when unlawful crossings reach high levels, reforming the asylum system to resolve cases in a shorter timeframe, and expediting work permits.

Under the proposed deal, the Department of Homeland Security would be granted new emergency authority to shut down the border if daily average migrants crossing unlawfully reach 4,000 over a one-week span. Certain migrants would be allowed to stay if they proved to be fleeing torture or persecution in their countries.

It’s impossible to close the border to asylum seekers because of current law, despite multiple attempts by Trump to do so while he was in office.

Republican senators like Lindsey Graham are telling their colleagues in the House that this is a better deal than they are likely to get if Trump takes office in 2025, because Democrats would likely filibuster. (But of course Trump is going to be a dictator in his second term, so why should Republicans worry about what Congress will or won’t do?)

But there’s still a problem: Republicans don’t want to do something about the border, they want to have the worst possible situation so that they can blame Biden for it. Trump wants the border as a campaign issue. If the situation were to improve, that would be bad news for him. (In general, good news for America is bad news for Trump. He is openly rooting for an economic crash, and seems downright cheerful while predicting a “major terrorist attack“. The fact that the stock market continues to set records is an unfortunate development for him.)

So Trump instructed Speaker Johnson to torpedo any border deal, no matter what is in it. “It’s not going to happen, and I’ll fight it all the way.” Mitch McConnell said: “When we started this, the border united us and Ukraine divided us. The politics on this have changed.

Mitt Romney, who still has one more year in the Senate, made a moral critique:

The fact that [Trump] would communicate to Republican senators and congresspeople that he doesn’t want us to solve the border problem because he wants to blame Biden for it is really appalling. Someone running for president ought to try and get the problem solved as opposed to saying, “Hey, save that problem, don’t solve it, let me take credit for solving it later.”

Democratic Senator Brian Schatz of Hawaii commented:

I think if Democrats were holding up funding for the defense of three allies unless we got an unrelated thing, and then we said no to the very thing we demanded because our nominee told us to kill it, that the media would justifiably go thermonuclear on us.

Speaking of the border, what’s going on in Texas is truly outrageous. (And Dan Fromkin wants to know why the major media outlets are ignoring it. ) Texas has recently taken a variety of actions that essentially claim that it — and not the federal government — controls its border with Mexico.

Texas erected razor wire barriers along a river in Eagle Pass, Texas, that physically prevented federal Border Patrol agents from entering the area, processing migrants in those areas, or providing assistance to drowning victims. According to the DOJ, the Border Patrol was unable to aid an “unconscious subject floating on top of the water” because of these barriers.

Federal law, moreover, provides that Border Patrol agents may “have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” So Texas claimed the power to use razor wire to prevent federal officers from performing their duties, in direct violation of a federal statute.

Last week, the Supreme Court ruled in the federal government’s favor, but only 5-4. The order was very terse, so we have no idea why Justices Thomas, Alito, Gorsuch, and Kavanaugh weren’t on board. Do they really want to reinterpret the supremacy clause of the Constitution?

Even so, you might think a 5-4 Supreme Court decision would end the matter, but apparently not.

On Monday the Supreme Court said the federal government has the authority to remove razor wire that Texas installed at the southern border. Homeland Security said Texas had until Friday to give federal authorities access to Eagle Pass. But Governor Abbott is doubling down saying he’ll increase state patrol of the border, adding more barriers and more razor wire. 

Texas has two related disputes with the federal government: The feds want to remove a floating barrier Texas has put in the Rio Grande, and a Texas law (set to take effect in March) would give state judges the power to issue deportation orders.

On his excellent blog Popular Information, Judd Legum goes into more detail, explaining how Governor Abbott is recreating the nullification crisis from the Jackson administration.

I forget where I first heard this suggestion, but if we simultaneously let Texas secede and admit Puerto Rico, we don’t have to change the flag.

and the 2024 campaign

The Democratic side of the New Hampshire primary was muddled, because the DNC wants South Carolina to be the first primary. So NH was unofficial, Joe Biden was not on the ballot, Biden did not campaign in NH, and a bunch of Democratic-leaning independents probably voted on the Republican side for Haley. Nonetheless, Biden’s write-in campaign got 64% of the vote, easily beating back challenges from Rep. Dean Phillips and Marianne Williamson, whose campaigns never caught fire.

Biden also got good economic news of two types: The economy continues to perform quite well, and the media is finally starting to take note of it. Both trends are captured in the WaPo’s “Falling inflation, rising growth give U.S. the world’s best recovery“.

I forgot to mention last week that the general public is also starting to catch on: consumer sentiment has jumped in recent months.

After losing in New Hampshire, Nikki Haley has just one possible winning strategy (other than hoping that some court takes Trump out of the race; see above): Her continued presence in the race annoys Trump, and if she needles him enough he might act out in ways that even his supporters will have to see as crazy.

This week she characterized Trump’s notably ungracious victory speech in New Hampshire as a “temper tantrum” and called him “unhinged”. She’s also alluded to his apparent cognitive decline: “We’ve seen him get confused.“

For some time I’ve been pointing to the media magnifying symptoms of Biden’s age while minimizing Trump’s far more serious mental glitches. Apparently they needed some Republican’s permission before they could raise Trump’s cognitive issues.

If I were running Haley’s campaign, I would want her to hammer on the point that he won’t debate because he’s not up to the challenge. Make it a real playground put-up-or-shut-up thing. I double-dog dare you to debate me.

Since Trump’s New Hampshire victory made his nomination seem inevitable, news-network talking heads have been speculating about his VP choice. What’s weird to me is that hardly anybody is saying the obvious: Trump thinks he made a mistake picking Mike Pence, because Pence eventually realized he had a moral code and a responsibility to America. So he didn’t help Trump stay in office after losing the 2020 election. Like Meat Loaf, Pence would do anything for Trump, but he wouldn’t do that.

Trump doesn’t want to make that same mistake again. So what he is mainly looking for is someone with no moral code, no loyalty to America, and no will of his or her own that might conflict with Trump’s will.

In All the King’s Men, the Boss explained his choice of the comically unctuous Tiny Duffy as lieutenant governor: “You get somebody somebody can trust maybe, and you got to sit up nights worrying whether you are the somebody. You get Tiny, and you can get a good night’s sleep.”

So: Elise Stefanik, then.

and you also might be interested in …

If you’ve ever wondered where those media takes on “real Americans” come from, Tom the Dancing Bug explains:

It looks like Taylor Swift is headed to the Super Bowl. Apparently some fans are annoyed with how often the cameras show us Swift in a luxury box at Kansas City Chief games, but I’m amused. From what little I know of Swift’s biography, she missed a lot of typical schoolgirl stuff while she was working to make it in the music business. Now, in her 30s, she finally gets the quintessential high school experience of rooting for her boyfriend’s football team and wearing his team jacket. I’m happy for her.

and let’s close with something eponymous

What happens when an actual penguin interns at Penguin Books?

January 29, 2024 – 11:27 am Categories: Weekly summaries | Comments (14)

The Monday Morning Teaser

I had an unusually busy week for purely local reasons, so there won’t be a featured post this week. (Among other activities, I had a cooking article published on the online local news site. This fact should be hilarious to anybody who knows me. I mention only in passing the incident where I accidentally set fire to an oven mitt.)

The weekly summary will discuss the $83 million jury award to E. Jean Carroll, which mostly consists of punitive damages to get Donald Trump to stop defaming her. I’ll also mention the other cases we’re currently waiting on, including the NY civil fraud trial against the Trump Organization, whose verdict is expected sometime this week.

There were a number of developments in the Gaza War this week. The House looks ready to junk a Senate deal on the border, which is simultaneously an immediate crisis and not worth doing anything about until the next Trump administration. Nikki Haley soldiers on, and may be more fun to listen to now that she no longer has any real chance to win. The economic news continues to be good, and Democrats seem more optimistic about Biden. And Texas is reviving the nullification issue South Carolina raised against Andy Jackson. The week’s best suggestion: If we simultaneously let Texas secede and admit Puerto Rico, we don’t have to change the flag.

I’ll try to get that out before noon.

January 29, 2024 – 8:38 am Categories: Morning tease | Comments (5)

Patterns of Stereotypes

The orthodox theory holds that a public opinion constitutes a moral judgment on a group of facts. The theory I am suggesting is that, in the present state of education, a public opinion is primarily a moralized and codified version of the facts. I am arguing that the pattern of stereotypes at the center of our codes largely determines what group of facts we shall see, and in what light we shall see them

– Walter Lippmann, Public Opinion (1921)

This week’s featured post is “Monkey-wrenching the Regulations that Protect Our Lives“.

This week everybody was talking about Iowa and New Hampshire

The Iowa caucuses happened last Monday, with Donald Trump getting a little over 50% of the Republican vote. How you interpret that depends on how you frame Trump’s role in the GOP. If you think of him as a presidential candidate among other presidential candidates, it’s a very strong result; he has more support than all his rivals combined. But if you frame him as the incumbent leader of the party, it’s a rather weak result. Imagine, for example, how the press will cover Biden if a Democratic primary is held somewhere, and he barely clears 50%.

In any case, nobody should attach too much importance to the result, because we’re talking about very few people. Just 110K Iowa Republicans turned out, out of 752K registered Republicans statewide and over 2 million total registered voters. That was down from 187K Republican caucus voters in 2016.

Last week I said that if DeSantis finished third in Iowa, he should drop out. He finished second, and dropped out yesterday anyway. His withdrawal doesn’t seem all that consequential because he didn’t have a lot of support anyway (that’s why he’s dropping out), and it’s not clear which way his voters will go. If they supported DeSantis because they liked Trump’s policies but realize that the man himself is a threat to democracy, they’ll go to Haley. But if they just wanted a younger Trump, they’ll go to Trump.

I would interpret the Iowa result this way: If you were hoping for the Republican Party to reject Trump on their own, you need to accept that it’s not going to happen.

We should see that confirmed tomorrow in New Hampshire: Trump is leading in the polls, but New Hampshire is a tricky state to predict, as Barack Obama discovered in 2016. So while a Haley victory isn’t likely, it is possible.

But even that outcome wouldn’t lead to a broader Trump defeat. NH is ideal terrain for Haley, and many Biden-leaning independents may cross over to vote for her. But that’s not a winning formula going forward.

There really is only one scenario where a NH loss leads to Trump’s undoing, and that depends on him: Everybody will be watching him, so if he responds to an unexpected loss with a racist, sexist, and generally unhinged temper tantrum, even Republicans might begin to wonder about his sanity.

Speaking in Concord, NH on Friday, Trump mixed up Nancy Pelosi and Nikki Haley, claiming that Haley was in charge of security on January 6. (His usual lie assigns that role to Pelosi.) But we’re supposed to worry about Biden’s mental acuity.

The other Trump news is all legal: The second E. Jean Carroll defamation trial got underway. The judge, following proper legal procedure, is not letting Trump re-argue something already decided by a previous jury: that Trump really did sexually assault Carroll.

Trump’s “defense”, if you want to call it that, is to replay the greatest hits of toxic masculinity. A standard claim to throw at rape victims is “Didn’t you actually enjoy it?” Well, CNN’s Joey Jackson summarized the Trump attorney’s opening statement: You weren’t injured by Trump’s defamation, you benefited from it.

It was sort of like hey, listen, be thankful Trump made you famous, right? The reality is that what do we have to do with social media and mean tweets that you get on social media. If you take on a person apt to be the president, guess what? You’re in the position you want to be. You’re on TV all the time. Emotional pain and damages, what are you talking about?

When Trump was in the courtroom, he kept muttering and commenting loud enough for the jury to hear, until the judge threatened to remove him. On the campaign trail and on social media, he keeps repeating the remarks that the previous jury had determined were defamatory.

Trump’s behavior underlines the need for substantial punitive damages, over and above Carroll’s emotional suffering and loss of reputation. The point of punitive damages is to make the defamation stop, which the $5 million original award has failed to accomplish.

In addition to the Carroll trial, we’re awaiting the judge’s decision in the NY state fraud trial. We’re also waiting for an appeals court to rule on Trump’s claim of presidential immunity, and for the Supreme Court to hear arguments about whether the 14th Amendment disqualifies him from being president again.

This moment in the Trump trials reminds me of the period between the passage of the Affordable Care Act in 2010 and the first ObamaCare insurance policies in 2014. The program was deeply unpopular then, basically because Republicans could say whatever they wanted about “death panels” or whatever, and ordinary people didn’t have any experience that could prove them wrong. Today, though, if you talk about repealing ObamaCare, millions of people understand that they would lose their health insurance. At its nadir in late 2013, only 33% of Americans had a favorable opinion of ObamaCare, while 59% do now.

Similarly, today everybody knows that Trump has been indicted, but since the cases haven’t gone to trial (largely due to Trump’s stalling tactics), he can say whatever he wants about the evidence, the prosecutors, and the judges.

If you live in the Fox News echo chamber, you’ve heard Trump’s claims, but you know nothing about the seriousness of the crimes he’s accused of or the strength of the evidence against him. It’s all just a witchhunt, a “weaponization” of the Justice Department and the legal system. He didn’t do anything wrong. If he did do something wrong, everybody does it. And if everybody doesn’t do it, there would still be “bedlam” if he were ever held to account.

But despite Trump’s stalling, at least one case is likely to go to trial before the election, and probably result in a conviction. That will be harder to spin away.

BTW: Think about that stalling. If Trump really believed that he had done nothing wrong and the indictments were all a coordinated political witchhunt, he’d be eager to go to trial so he could poke holes in the flimsy evidence against him. When a jury found him innocent after some minimal deliberation, he could crow about being vindicated. But in the real world, Trump knows he’s guilty and that the government has the goods on him, so stalling until he’s president again (and has the tools to obstruct justice) is his best bet.

and the Gaza War

The shock of the October 7 attacks by Hamas welded together a lot of people with divergent views. In Israel, a unity government was formed, a startling departure from recent years when Netanyahu has hung on by finding allies to cobble together narrow majorities in the Knesset, and a new election is needed every year or two. The Biden administration also signed on to the coalition, and has stood with Israel whenever it has been challenged in the UN and elsewhere.

But this week we began to see cracks in that coalition. Netanyahu is increasingly hostile to the Biden administration, and Israel’s internal political divisions are re-emerging.

The war is increasingly becoming a slog, which is causing the world to forget Israel’s October 7 suffering and focus instead on the humanitarian catastrophe in Gaza. Meanwhile, military operations are failing to find and rescue the hostages, and the goal of eradicating Hamas seems ever more distant. Polls indicate that Netanyahu’s goose is cooked once elections are held, which the government doesn’t want to hold during wartime. And that makes critics wonder how committed the prime minister is to ending the war.

and something you probably didn’t know you should care about

Probably the words “Chevron doctrine” make your eyes glaze over. But they shouldn’t. In the featured post, I try to explain why the Supreme Court’s looming revision of Chevron means that six corporate-tool foxes are about the seize control of the agencies that regulate all of America’s hen houses.

and you also might be interested in …

This week’s hopeful take on climate change comes from Chris Hayes’ interview with climate journalist Robinson Meyer. Near the end of the interview, Meyer talks about about lowering carbon emissions sector by sector:

We used to think the power sector was really, really hard. The power sector was the biggest source of [carbon] emissions in the US. Then cheap wind and solar happened (and we switched from coal to natural gas) and very rapidly power emissions fell.

And then … transportation became the most polluting sector of the US economy. But what’s about to happen in the next few years [as EV prices drop] is that transportation’s about to fall to second place, and industry will be the most polluting sector of the economy.

And what I suspect will happen is, just as happened with the power sector and the transportation sector, is that once industry is the most polluting sector of the economy, and people really start to focus on it, we’re going to see all these easy-to-abate emissions, that we just haven’t really noticed yet. And we’re going to get rid of them really quickly. And so, to some degree steel, chemicals, [agriculture], these are huge, challenging problems. On the other hand, they’re challenging problems because we just haven’t paid attention to them yet.

Meanwhile, there’s one fossil-fuel-reducing project that has bipartisan support: ethanol made from corn. If only it weren’t such a bad idea. If, rather than fueling internal-combustion-engine cars with ethanol, we charged EVs with solar energy, one acre of solar panels could power as much transportation as 100 acres of corn. At least that’s what 200 science faculty at 31 Iowa colleges and universities think.

Reportedly, climate change is “on the back burner” for the plutocratic overlords at Davos this year. Also, they’re sanguine about Trump regaining power and continuing to cut their taxes and deregulate their businesses. I’m reminded of Krupp and I. G. Farben in the early 1930s.

“Everyone on this stage is committed to a future of net-zero income tax payments.”

Did you hear that Biden has decriminalized crime? That’s one of the many things you don’t know because you don’t watch Fox News. Fortunately, Kat Abu does.

and let’s close with something fake

When you work hard to get things right and not be fooled by misinformation, once in a while it feels good to revel in complete fraud. Kueez.com has collected viral photos that weren’t all they appeared to be. Some are amusing, some are head-shaking, and others are laugh-out-loud funny. Probably my favorite is a water-surrounded rock and a castle getting photoshopped together.

The actual rock is in Thailand and the castle in Germany, but the combination has the single quality all successful misinformation must have: You look at it and you want it to be real.

January 22, 2024 – 11:35 am Categories: Weekly summaries | Comments (5)

Monkeywrenching the Regulations that Protect Our Lives

The Supreme Court’s attempt to scuttle the Chevron Doctrine is part of a much larger program.

Over the last few weeks, Court-watchers have been trying to sound the alarm about the prospect of scuttling what had (until recently) been a fairly arcane bit of legal interpretation: the Chevron Doctrine. Lawyers understand how important it is (the Court has applied it in over 100 cases in the last 40 years), but it’s tough to get the general public to pay attention, much less to be up in arms about its possible demise. But there actually are good reasons to be up in arms.

A fairly standard thing to do at this point would be to tell you what the Chevron Doctrine is and where it comes from. I’ll eventually get around to doing that — click the link if you really can’t wait — but I’d rather have you keep reading for a few more paragraphs before you bookmark this page with the idea of getting back to it when you have more time.

Blood money. So instead I’ll back up a few levels and start with the underlying problem: In a complex modern economy, there are countless ways for corporations to make money by killing people. They can kill their customers by selling products that will crash them into trucks or suck them out of airliners or cause heart attacks or give customers cancer or salmonella or some other disease. They can kill their employees with unsafe workplaces. They can kill their neighbors by pumping poisons into the air or water. As AI catches on, products may start killing people and we won’t even know why.

Sometimes corporations very consciously make the money-for-lives tradeoff, as the tobacco companies did for decades, and as the gun manufacturers are still doing. But sometimes they just don’t know, at least at first. They have a product, they make money off of it, customers seem happy with it, so why look any deeper than that? Diacetyl makes microwave popcorn taste more buttery — what’s not to like?

As individuals, we’re more or less helpless to protect ourselves. No one has the time or the expertise to analyze every single thing they use or come into contact with. That’s why we rely on government regulation, agencies like the FDA, EPA, FSIS, and others, to protect our lives. (Other agencies, like the SEC and the FDIC, protect our money from the kinds of scams that were endemic prior to the New Deal.)

Government regulators get their power from two sources: Congress and the President. Congress creates the agencies, defines their missions, and funds them each year. Meanwhile, the President appoints the people who set the policies to accomplish those missions. Ultimately, Congress and the President get their power from the voters.

But here’s the problem: The marketplace moves much faster than our political system. New products, new drugs, new food additives, new pollutants, and so forth appear every week. Imagine the dystopia we’d be living in if Congress, which strains to pass basic legislation to keep the government’s doors open, had to pass a new law to regulate each one.

Well, you may not have to imagine much longer, because the Supreme Court’s conservative majority seems hellbent on taking us there.

Delegated power. The way the regulatory system currently works is that Congress passes a few foundational laws that give the agencies abstract goals, and then lets the agencies hire experts who figure out how to pursue those goals.

A typical example is the Clean Air Act. The CAA was first passed in 1963 and then overhauled in 1970. It established air quality standards (NAAQS) for a few well-known pollutants like carbon monoxide, sulfur dioxide, and lead, but then it defined a general category of “hazardous air pollutants” (HAPs) made up of other gases and particulates that “threaten human health and welfare”. It tasked the EPA with making and maintaining a list of HAPs and creating emission regulations for controlling them.

Hold that in your mind for a minute: In passing the CAA, Congress banned or controlled substances that the members of Congress had never even heard of. That’s how the regulatory system works.

That’s a lot of delegated power, particularly power over corporations that don’t like being controlled. And yes, their wealth does give the companies opportunities to influence the system — say by bribing or otherwise inducing congresspeople to give them various exemptions, or by letting regulators know they can have cushy jobs after they leave government if they behave themselves — but it’s never enough.

What corporations would really like to do is monkey-wrench the regulatory system in general. And the best way to do that is to interrupt the flow of delegated power from Congress to the agencies: Make Congress pass a new law every time there’s some new thing to regulate. In a Congress where even saving lives can be a partisan issue, and where a bunch of small-state senators can lock things up with a filibuster, even the most obvious new regulations can be stalled indefinitely or watered down to nothing.

So the basic strategy for restoring corporations’ ability to profit by killing people has two pieces

  • Logjam Congress.
  • Prevent Congress from delegating its regulatory power to anybody else.

A three-pronged attack. With the second part of that plan in mind, corporate money begat the Federalist Society, and the Federalist Society (with the assistance of presidents who lost the popular vote and Senate “majorities” that don’t represent a majority of voters) begat the six conservative justices on the Supreme Court. Since gaining control of the Court, those justices have been working hard to fulfill the mission their corporate masters assigned them.

The most direct idea for keeping Congress from empowering regulatory agencies is known as the Nondelegation Principle: basically, that Congress can’t, as a matter of constitutional principle, delegate power that is inherently legislative. Some version of this idea is necessary, because otherwise Congress could authorize the president to be a dictator and then go home. But since 1928 delegation has been considered OK if Congress provided an “intelligible principle” for the agency to follow (like protecting human health and welfare from air pollutants).

But in a dissent in the Gundy case in 2019, Justice Gorsuch proposed a much stricter limit: Agencies can only “fill in the details” of laws, and can’t do something sweeping like, say, compile a list of dangerous pollutants to regulate. Fortunately, he didn’t get the majority to go along with him on that. But he’s still working on it, and the composition of the Court has changed since then. Expect to hear more about nondelegation sometime soon.

A second idea for reining in regulatory agencies is the Major Questions Doctrine, which the Court has created out of whole cloth over the last 25 years. Major Questions is a response to something that happens fairly often: Circumstances change in such a way that a provision in a law that seemed relatively minor at the time it was passed ends up granting an agency significant power. Major Questions allows the Court to say, “No, no, no. The law may say that, but Congress didn’t really mean it. If they’d intended to delegate such a large power, they’d have said so explicitly.”

So, for example, the Obama administration EPA decided that (due to the previously unforeseen problems of climate change), the Clean Air Act gave it the power to regulate carbon dioxide emissions from power plants. The Court nixed that in West Virginia v EPA. Carbon emissions, it said, are so central to the workings of our economy that (regardless of the text of the CAA) Congress would never have delegated that power without an explicit statement.

Now, there are four major objections to the Major Questions Doctrine:

  • The Constitution never mentions it.
  • The Court has never clearly defined what a “major question” is, so it has given itself permission to interfere (or not) whenever it feels like it.
  • The law says what it says, even if Congress didn’t foresee all the possible applications.
  • If Congress really didn’t intend to delegate that much power, it could pass a law to take power back. (But of course, that puts the logjam-Congress shoe on the other foot.)

One recent use of Major Questions was to torpedo OSHA’s rules about large employers vaccinating their workers against Covid. Yes, OSHA’s mission is to protect workers from unsafe working conditions, and yes, working next to an unvaccinated person during an epidemic is unsafe, but … Congress couldn’t really have intended that, could it?

One thing you’ll notice about Major Questions: It allows the Court to substitute its own judgment for both the plain reading of the law and for an agency’s interpretation of that law. And that brings us (finally) to the Chevron Doctrine.

Chevron. Back in the Reagan administration, all the ideological arrows pointed in the other direction: Reagan’s appointees were conservative, while judges tended to be liberal. In particular, the EPA was run by Justice Gorsuch’s mom, Anne Gorsuch.

Anne’s EPA had drastically limited its interpretation of what a “source” of pollution meant under the CAA. Previously, just about any change that introduced new pollution was considered a new source, and required EPA approval. But the new interpretation said that, say, an entire factory or power plant was the source of pollution, and could be substantially reconstructed without triggering EPA supervision.

The Natural Resources Defense Council sued to try to block something Chevron was building, but the Court ruled in Chevron’s favor by creating the Chevron Doctrine: When some part of a law is ambiguous, a court should defer to the interpretation of a regulating agency rather than impose its own interpretation of what Congress really meant. An agency couldn’t make up a ridiculous interpretation, but as long as its reading was plausible, the courts should yield to it. (An eye-glazingly detailed history of the Chevron case is in this interview between David Roberts and Dvid Doniger.)

But remember: the ideological arrows were pointing in the opposite direction from today, so Chevron was a conservative principle that was championed by conservative justices like Anton Scalia. The arguments he made were the same ones liberals are making today: Agencies have technical expertise that courts can’t compete with, and (because they ultimately get their power from Congress and the President), they’re closer to the voters than judges are. So Chevron is not just prudent, it’s democratic.

This kind of humility is sometimes called judicial restraint. For many many years, it was the hallmark of conservative jurisprudence: Activist liberal judges should restrain themselves, because they’re not as smart as they think they are, and because it’s undemocratic to remove issues from the political process.

But now conservatives have control of the courts, so humility is out the window. Apparently, judicial restraint was never actually a conservative principle, it was just a rhetorical device to keep liberal judges in check. Activist conservative judges, on the other hand, should have free rein to do whatever they want.

So Chevron has to go. The Court is using two fairly obscure cases (involving fees paid by the fishing industry to the National Marine Fisheries Service) to tee up an attack on Chevron. No one knows exactly what the ruling will say yet, but the questions the justices were posing during oral arguments point at a complete revision of Chevron that could make the Supreme Court also the Supreme Regulator; whether any given agency was interpreting its authorizing legislation properly would be for the Court to determine.

The practical implications of sinking Chevron could be enormous: Literally thousands of cases have been decided on that basis in the last 40 years, and any of them could come up for a rehearing. Plus, literally every regulation on the books will become a legal battleground, with the Supreme Court’s six conservative justices being the ultimate deciders.

In short, a committee made up of six foxes is about to take over the regulation of every chicken coop in the country.

January 22, 2024 – 10:17 am Categories: Articles | Comments (16)

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