Rittenhouse seems to threaten the president
A young man planned to shoot Brett Kavanaugh and it was bad. No dispute. This is fine though. No problem.
"what digby sez..."
Month: June 2022
Can we all agree on that, at least?
There seems to be some idea among the wingnuts that liberals will not condemn this. They are wrong. This is grotesque:
An armed man was arrested near Supreme Court Justice Brett Kavanaugh’s Maryland home after allegedly making threats against Kavanaugh, according to a Supreme Court spokesperson.
The man was arrested at about 1:50 a.m. Wednesday and taken into custody in Montgomery County.
The suspect’s name has not been released but a law enforcement official told ABC News that he is from California.
Montgomery County police said the case has been transferred to the FBI.
The Department of Homeland Security warned in May that there could be threats against Supreme Court justices over the leaked draft of the Roe v. Wade decision.
A bulletin obtained by ABC News in May said the draft leak “prompted a significant increase in violent threats — many made online via social media and some of which are under investigation –directed toward some U.S. Supreme Court Justices and the Supreme Court building.”
The National Capital Threat Intelligence Consortium identified at least 25 violent threats on social media that were referred to partner agencies for further investigation, the bulletin said.
“Some of these threats discussed burning down or storming the U.S. Supreme Court and murdering Justices and their clerks, members of Congress, and lawful demonstrators,” the bulletin said.
U.S. Marshals bolstered their protective details for the justices and began guarding their homes around the clock in the wake of the leaked draft, Attorney General Merrick Garland said Wednesday.
“This kind of behavior is obviously behavior that we will not tolerate,” Garland said. “We will do everything we can to prevent them [violence and threats of violence] and to hold people who do them accountable.”
Senate Minority Leader Mitch McConnell said Wednesday, “This is exactly, exactly the kind of event that many feared the terrible breach of the court’s rules and norms could fuel.”
McConnell used the incident to call on the House to pass legislation increasing protection for Supreme Court Justices and their families.
McConnell is very committed to ending violence when he wants to be, isn’t he? But he’s making no sense. Why would the leak create more ill will than the ruling itself? Assuming they have not substantially changed their minds, it was going to happen anyway.
Cable news tells me that the guy was upset about the abortion ruling and gun rights and he planned to kill Kavanaugh and then himself. Thank goodness he was unable to do it. We have successfully avoided political assassination in this country since the 1960s when it happened frequently. There were a few attempts after that but we’ve been lucky. It’s a terrible, terrible thing and let’s hope this isn’t the next step in our political devolution.
Update: Apparently, the 26 year old called the police himself saying that he was having suicidal thoughts and they came and got him.
They can’t show the hearings. Their audience would be shocked.
I doubt there is anyone in America who is surprised that Fox News has decided not to carry the January 6th committee hearings. Why would they want to make their audience feel disoriented with a bunch of disturbing information they’ve heard nothing about despite tuning in regularly to their favorite “news” network? It would be like getting a dispatch from another planet. It’s very upsetting, and if there’s one thing neither Republicans nor their propaganda channels are willing to do it’s make their followers angry.
Recall that Fox News was the first network to call the Arizona election for Joe Biden, which sent the entire right-wing into a frenzy. It resulted in Fox finally giving up any pretense of being a real news network. According to “Hoax: Donald Trump, Fox News, and the Dangerous Distortion of Truth” by CNN’s Brian Stelter, Trump got the ball rolling by tweeting out his anger and going on “Fox and Friends” to complain, asking: “What’s the biggest difference between this and four years ago? I say Fox. It’s much different now.” Soon his rabid supporters were gathering outside the Phoenix, Arizona counting center yelling “Fox News Sucks” and Facebook groups were forming telling people to switch to Newsmax and One America News. And for a while, they did just that. In December of 2020, for the first time, Newsmax actually beat Fox News in the ratings. Fox executives greeted this crisis as an existential threat with one producer telling Stelter, “we’re bleeding eyeballs, And we’re scared.” Their ratings were nosediving “20, 25, 30 percent, even though the news cycle was nothing short of epic.” Remember, this was the post-election period — it was epic indeed. Stelter wrote:
“Our audience hates this,” one executive said to me in a moment of candor. “This” was Biden as president-elect and Kamala Harris as VP-elect. “They’re pissed,” said a second source. “Seething,” said another.
The word apparently came from on high that they’d better figure out a way to get their audience back. So Fox News fired the election team that called the Arizona election results and re-tooled immediately, starting by giving the audience what they were demanding: false hope. They pushed the voter fraud conspiracies to the point that Fox News even became the subject of huge defamation lawsuits by the voting machine companies. And then the network went after anyone who didn’t go along with the program.
Rupert Murdoch himself was said to be guiding decisions to remove anyone who wasn’t deemed hysterical and shrill enough to entice the disappointed Trumpers back into the fold, marginalizing the few more or less straight news people and giving carte blanche to their “opinion” personalities to follow their bliss into the right-wing fever swamps. The result is Tucker Carlson and his Great Replacement Hour.
Media Matters did a deep dive a while back into how Fox News ended up covering the post-election period:
Fox and its associates did everything they could to support Trump’s autocratic maneuvers. In the two weeks after media outlets called the race for Biden, Fox personalities questioned the results of the election or pushed conspiracy theories about it nearly 800 times. They put the credibility of the network behind deranged lies about fraud plucked from the internet fever swamps, beaming batshit fantasies out to a huge national audience. It worked—polls following the election showed a majority of Republicans believed that the election was stolen from Trump.
But hosts, contributors, and guests went further than simply lying to their viewers—they pushed for action. They attacked Republican state officials for being insufficiently committed to Trump’s scheme; called for the arrests of election workers; suggested that Republican state legislators in states Trump lost should “appoint a clean slate of electors” who support him; promoted fake Trump electoral slates for supposedly keeping Trump’s “legal options open”; suggested a “do-over” election as “the only remedy”; called for congressional investigations; endorsed a lawsuit by Republican state attorneys general asking the Supreme Court to throw out results in four states Biden won; urged Republican governors not to certify unfavorable results; and denounced Republican members of Congress for “destroying the Constitution” by voting to count the electoral votes.
As for the January 6th committee, Philip Bump of the Washington Post compiled a comparison of the three cable networks’ coverage and found that Fox covered January 6th itself far less often than the others and the committee even less. He writes that “CNN has mentioned the committee more than four times as often as has Fox News on average; MSNBC has mentioned it five times as much on average.” There is almost a blackout on the stories regarding the Oath Keepers and the Proud Boys who have been indicted on charges of seditious conspiracy.
Basically, Fox viewers are almost completely in the dark about the insurrection or the revelations since then, including the work of the Department of Justice and the January 6th Committee, not to mention the many stories reported in the media about the coup plot itself. They know almost nothing about former Chief of Staff Mark Meadows’ involvement in every aspect of the attempts to overturn the election and they certainly don’t know that as the mob was storming the Capitol, their favorite Trump-loving Fox News celebrities were bombarding the White House with texts begging them to get Trump to call off the rioters.
Fox intends to keep it that way. They announced on Tuesday that they will have their news anchors follow the hearings on Fox Business Network (which only gets a fraction of the audience of Fox News during that time period) so their marquee talent can do their usual shows. One of them even said the quiet part out loud:
Their audience doesn’t want to hear any news that makes them unhappy so Fox will keep giving them what they want: owning the libs, Dr. Suess and Mr. Potatohead — and white nationalism. ( As you can see, they’ve even got the beloved, charismatic, superstar Steven Miller on as a regular these days.)
If “the news” was a person, it could sue Fox News for fraud and win.
“America is not ready” is cowardly
No doubt you’ve seen excerpts from Matthew McConaughey’s Tuesday speech at the White House. As a prominent native of Uvalde, Texas, the Academy Award-winning actor has a personal connection to the mass shooting there. This “green Converse” clip about what 5.56 mm bullets did to shooting victim Maite Rodriguez, 10, is getting a lot of play.
You can watch the entire 21-minute speech here.
McConaughey was coy about his party alignment when he toyed last year with running for governor of Texas. I don’t know much about the “aggressively centrist” McConaughey’s politics. But he knows something about the target audience for any plea for even modest gun control legislation. McConaughey spoke Tuesday with Fox News anchor Bret Baier instead of the network’s fringe-right bomb-throwers.
Even CNN’s Dr. Sanjay Gupta is reluctant to be more graphic in illustrating the kinds of wounds he has seen firsthand.
GSW is hospital code for gunshot wound. An instructor took Gupta’s medical school class to a gun range and used watermelons to illustrate the difference in wounds caused by pistol and rifle bullets. He never forgot it.
Then in Iraq, and later in the U.S., Gupta witnessed the real thing:
I was embedded with the Devil Docs, the Navy medical team that provides frontline medical care for the Marines. There are things that my cameraman Mark Biello and I saw on the battlefield that we still have a hard time talking about. They are still hard to even write about. Limbs blown clean off the body, and wounds so horrific, I thought for sure they must’ve been caused by a bomb or IED.
I never imagined that just a couple of years later, I would see the same sorts of injuries in US cities, including my own, Atlanta. Those are the days when I come home from the hospital simply unable to talk, let alone describe what I had just witnessed.
People wonder, Gupta contiinues, if what’s needed to move the public opinion needle on guns is an “Emmett Till” moment:
Emmett Till was a 14-year-old Black teen who was abducted and violently murdered in 1955 by White racists in Mississippi after a white woman accused him of whistling at her. Till’s mother took the unusual step of holding an open-casket funeral and allowing a photographer from Jet magazine to photograph her son’s disfigured, unrecognizable face to show the country the result of racial violence. Many consider that moment a turning point in the country’s collective support for the Civil Rights Movement.
Many of my colleagues have urged me to further describe the horrific injuries I have seen over the last nearly 20 years as a neurotrauma surgeon.
The truth is I’m not sure America is ready to see that. More importantly, it isn’t a decision anybody can make unless it’s their loss and their story to tell — like Emmett Till’s mother.
It is indeed a decision for the families. Till’s mother’s anguished decision changed the course of history. But waiting for America to be ready is the coward’s way. See no evil.
America was not ready to see pictures of Alabama State Troopers beating peaceful black civil right protesters in Selma in 1965. We were not ready to see Phan Thi Kim Phuc, terrified and naked, badly burned and fleeing after a South Vietnamese plane dropped napalm on her village in 1972. America was not ready to see pictures of U.S. soldiers torturing and abusing prisoners at Abu Ghraib in 2004. America was not ready to see Minneapolis police murder George Floyd by slow strangulation in 2020.
Sometimes America needs to be shown. Ready or not.
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Request a copy of For The Win, 4th Edition, my free, countywide get-out-the-vote planning guide for county committees at ForTheWin.us.
If in a position to Play to win in 2022 (see post first), contact tpostsully at gmail dot com
Finds likely evidence of a crime
“John Eastman attempted to protect Trump bragging about the size of his campaign rallies under a claim of atty-client privilege,” Marcy Wheeler observes. U.S. District Court Judge David Carter ruled that the attorney at the heart of Donald Trump’s effort to reverse results of the 2020 election must disclose 159 documents to the Jan. 6 committee he had tried to hide behind attorney-client privilege, including one the judge said contains likely evidence of a crime (Politico):
In a 26-page ruling, U.S. District Court Judge David Carter also ordered Eastman to provide 10 documents about meetings Eastman held with a secretive pro-Trump group that included a “high-profile” leader discussing strategies for overturning the 2020 election.
The 10 documents in question related to three December meetings held by the group. “Five documents include the agenda for a meeting on December 9, 2020,” the California-based judge indicated. “The agenda included a section entitled “GROUND GAME following Nov 4 Election Results,” during which a sitting Member of Congress discussed a “[p]lan to challenge the electors in the House of Representatives.” Other meetings of the group took place on Dec. 8 and Dec. 16, Carter noted.
“The Select Committee has a substantial interest in these three meetings because the presentations furthered a critical objective of the January 6 plan: to have contested states certify alternate slates of electors for President Trump,” he ruled. “Dr. Eastman’s actions in these few weeks indicate that his and President Trump’s pressure campaign to stop the electoral count did not end with Vice President Pence — it targeted every tier of federal and state elected officials. Convincing state legislatures to certify competing electors was essential to stop the count and ensure President Trump’s reelection.”
Of particular interest is which high-profile leader and group were involved in the planning. These documents will go to the committee. Perhaps the information will be new; perhaps it will only bolster facts the committee has already assembled. Eastman must surrender the documents by 5 p.m. Wednesday (today). The panel begins its prime-time presentation at 8 p.m. Thursday.
Carter ruled in March, Politico reminds readers,
that Trump and Eastman likely entered into a criminal conspiracy to overturn the election by attempting to impede the transfer of presidential power on Jan. 6, 2021. He described the attempt as a “coup in search of a legal theory,” determining that Eastman’s efforts to couch the effort in legal scholarship masked a more sinister effort.
Carter’s latest ruling identifies five documents in particular represent a “close call” for falliing under the crime-fraud exception to the attorney-client privilege shield. Four consider whether filing certain election lawsuits could disrupt Eastman’s alternate electors scheme. But in the fifth, Carter explains:
Because the attorney concluded that a negative court ruling would “tank the January 6 strategy,” he encouraged the legal team to avoid the courts. This email cemented the direction of the January 6 plan. The Trump legal team chose not to seek recourse in court—instead, they forged ahead with a political campaign to disrupt the electoral count. Lawyers are free not to bring cases; they are not free to evade judicial review to overturn a democratic election. Accordingly, this portion of the email is subject to the crime-fraud exception and must be disclosed.
Another tranche of 409 documents Carter allowed withheld. Others that expressly discuss avoiding legal action in furtherance of the political plan for alternate slates of electors. “Because these documents only relate to the political plan for January 6, they were not made in anticipation of litigation and thus are not protected.”
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Request a copy of For The Win, 4th Edition, my free, countywide get-out-the-vote planning guide for county committees at ForTheWin.us.
If in a position to Play to win in 2022 (see post first), contact tpostsully at gmail dot com
A sweet story to give you hope
Misha Rohozhyn, a Ukrainian teenager with Down syndrome, escaped besieged Mariupol as his mother wove a motivational fantasy that his pro-wrestler hero John Cena lay at the end of their dangerous journey out of Ukraine.
On Saturday, the fantasy ended with a happy reality, when the U.S. star visited Misha here.
Over a long journey that took Misha out of the familiarity he craves to traverse minefields, hostile Russian soldiers, artillery bombardments and national borders, his mother, Liana Rohozhyna, explained that their constant movement was to find Mr. Cena.
That journey, and the escape of others from the same day center in Mariupol, was the subject of a Wall Street Journal article that was read by Mr. Cena, who arranged a meeting in Huizen, the Dutch town where the family has been staying.
After arriving in the Netherlands last month, Misha, a 19-year-old who is unable to speak, stayed in his bedroom, disoriented by his new surroundings and getting angry with his mother that they hadn’t found Mr. Cena.
As Mr. Cena stepped out of a car on Saturday, wearing his World Wrestling Entertainment Inc. outfit, Ms. Rohozhyna began to cry.
“This is something out of this world,” she said.
There is good in this people. It’s important to try to take note of it once in a while…
What a piece of work…
This is one book I’m not going to read, but I thought the review in the Bulwark was pretty interesting. There’s something seriously wrong with her:
Set up with George Conway by her good friend Ann Coulter, and following an elaborate courtship, Kellyanne married the high-powered conservative attorney in an April 2001 wedding where, as she recounts here in inordinate detail, caviar, escargot, Alaskan king crab legs, sea bass, filet mignon, and a Viennese dessert selection were on the menu. Following a honeymoon, the happy couple moved into the “super-luxurious and super-tall” Trump World Tower in New York, where “our new neighbors included Bill Gates, Sophia Loren, and Naomi Campbell.”
I hate her on that basis alone … but it gets worse:
Kellyanne moved around in right-wing circles, and during the Obama years she circulated with figures like Steve Bannon and became close to the far-right donor Rebekah Mercer. A revolt on the Trump World Tower condominium board brought the Conways into personal contact with Trump himself, and on his side in the dispute, forging a relationship. Contemplating entering the New York gubernatorial race, Trump sought out Kellyanne’s advice. In the end, Trump demurred on the run. He had his eyes on a bigger prize.
When the 2015 presidential campaign season opened, Trump attempted to recruit Kellyanne for his fledgling campaign, but she chose to work for a Ted Cruz super PAC, a perch from which she skillfully bashed the rising Trump in numerous television appearances. But by May 2016, Cruz was defeated and the Republican nomination was effectively in Trump’s hands, and on July 1, 2016, Kellyanne started working for the man she had been denigrating. Six weeks after she began, the ethically challenged (soon to be felonious) campaign chairman Paul Manafort was out the door of Trump Tower and Kellyanne was installed in his place.
On October 7, 2016, just one month before Election Day, the Trump campaign struck an iceberg, and Kellyanne Conway had to navigate the “grab ’em by the p%$#y” Access Hollywood tape. Kellyanne spins it here as artfully as she did on the campaign trail.
Those of us closest to him, literally at that moment, were in a state of disbelief. . . . The words spilling forth on the eleven-year-old tape were vulgar and vile. I certainly couldn’t square them with the brilliant, fun-loving, respectful man who had been the first Republican to elevate a woman to the top spot of his campaign.
Is this some kind of a satire? Is she delusional? The “brilliant, fun-loving, respectful” man had insulted everyone from Megyn Kelly to Rand Paul to a disabled reporter and beyond up to that point. WTF????
But yeah, he won:
Three-and-a-half years of public service ensued, if public service is what we can call her relentless spinning. The memoir traipses through some—but by no means all—of the incidents and controversies that enveloped the Trump presidency. The Mueller investigation she dismisses as “political proctology.” Of the administration’s “zero-tolerance” policy for illegal immigrants, she writes unconvincingly: “The policy itself did not separate parents and children, but the result of applying the policy in some instances did.” A distinction without a difference. Of Trump’s disastrous handling of COVID, in particular, his lying about what he knew about the seriousness of the disease and his continual undermining of public health guidelines, she says not a word.
Kellyanne also walks readers through the infighting that plagued the White House staff. A particular target of her ire is Jared Kushner, Trump’s son-in-law, who comes across as out of his depth—“part dreamer, part schemer”—yet invested with enormous power. But we are also introduced to “a preternaturally paranoid” Reince Priebus, Trump’s first chief of staff. We encounter Steve Bannon, then a ranking White House official, leaking incessantly and “busy buffing his image in the media, sowing discord among other staffers, and undermining his rivals (real and imagined).” Ivanka, the president’s posturing daughter, we’re told, like her father, is “brilliant.” From the evidence presented in this memoir, one can fairly question the proposition that Trump hired only the very best.
Ivanka is not brilliant. That’s just ridiculous. She’s a rich socialite. Period. Also a crook.
And what about George?
A major focus of the memoir is the curious case of Kellyanne’s husband. George Conway, as the entire sentient world knows, started out as an ardent Trump supporter, going so far as to seek (unsuccessfully) a high-ranking position in the Justice Department. But as events unfolded, he had a radical change of mind. Even as his wife was working to burnish Trump’s image, George had taken to the media, especially to Twitter, to tear it down, calling the administration, among other things, “a shit show in a dumpster fire.”
Pages upon pages are devoted to what Kellyanne calls George’s “small insolent strikes,” which she labors to explain, even to herself. “Clearly,” she writes, “he was cheating by tweeting. I was having a hard time competing with his new fling.” More: “I had two men in my life. One was my husband. One was my boss, who happened to be president of the United States. One of those men was defending me. And it wasn’t George Conway. It was Donald Trump.” It is more than passing strange that, even as she bemoans her loss of personal privacy, she carries on about her husband’s supposed betrayal in such a public way. Something is askew.
I don’t suppose we’ll ever understand the weird political marriage between those two. it makes no sense to me. I’d rather be married to a rattlesnake than Kellyanne Conway. If it’s an act it’s a perfect one for our times: two con artists, destroying our democracy, for fame and power (they already had a fortune.) If it isn’t an act, they’re both incredibly weird.
Maybe george is just one of those “cucks” as the wingnuts call cuckolds:
“I love Donald Trump,” Kellyanne states baldly at one juncture. Love is blinding, as they say, if her feelings for Trump are indeed love, not something uttered to position herself for some ingratiating purpose. Whatever her true sentiments, the picture of Trump that emerges from the memoir is preposterous. She finds Trump’s halting bumbling reading off the teleprompter “eloquent.” “I will always tell you the truth,” is how, without comment, she quotes Trump—never mind his prodigious ability to tell multiple lies in one breath.
Again, this has to be some kind of joke. She can’t be serious. It’s must be some kind of performance art.
Whatever you do, don’t buy this book. Even Marjorie Taylor Greene has more integrity.
Malone is making his move
It looks like CNN will be an unwatchable “he said/she said” cacophony of political bullshit during the presidential campaign. And that’s if they don’t decide to steal Tucker Carlson and Laura Ingraham away from Fox and just go full bore wingnut:
CNN’s new boss, Chris Licht, is evaluating whether personalities and programming that grew polarizing during the Trump era can adapt to the network’s new priority to be less partisan.
Why it matters: If talent cannot adjust to a less partisan tone and strategy, they could be ousted, three sources familiar with the matter tell Axios.
Details: Licht wants to give personalities that may appear polarizing a chance to prove they’re willing to uphold the network’s values so that they don’t tarnish CNN’s journalism brand.
For on-air talent, that includes engaging in respectful interviews that don’t feel like PR stunts. For producers and bookers, that includes making programming decisions that are focused on nuance, not noise. CNN’s tone became more partisan and combative during the Trump era and under the leadership of former CNN president Jeff Zucker.
To conservative critics, some on-air personalities, like Jim Acosta and Brian Stelter, have become the face of the network’s liberal shift.
Licht doesn’t want to necessarily shy away from personality programming, especially in prime time, but he wants to ensure that partisan voices don’t dominate in a way that harms CNN, a source notes.
Licht took the helm at CNN last month, shortly after longtime CNN president Jeff Zucker exited the network in scandal.
His priorities are widely seen as aligned with the leadership of CNN parent Warner Bros. Discovery.
Licht and Warner Bros. Discovery CEO David Zaslav haven’t been shy about their goal of dialing back on partisan and alarmist programming in favor of traditional journalism.
Last week, Licht told employees in a memo that the network has added a “Breaking News” guideline to its stylebook, to address overuse of the breaking news banner across its network and cable news writ large.
Licht said he agrees with complaints from “people both inside and outside the organization” that the network overuses the “Breaking News” banner.
“We are truth-tellers, focused on informing, not alarming our viewers,” he said in the note obtained by Axios.
Zaslav and mentor and investor John Malone have been public about their wish to pull CNN away from progressive commentary.
“I would like to see CNN evolve back to the kind of journalism that it started with, and actually have journalists, which would be unique and refreshing,” Malone told CNBC last year.
Yep. In case you were wondering if this is a ideological directive coming from above:
In the interview with CNBC’s David Faber, Malone also said:
Fox News, in my opinion, has followed an interesting trajectory of trying to have news news, I mean some actual journalism, embedded in a program schedule of all opinions.
Brian Flood of right-wing Fox News (11/19/21) said of Malone’s CNBC declaration:
Liberty Media chairman John Malone, who sits on the Discovery, Inc. board of directors, wants to see left-wing CNN revert back to nonpartisan journalism following the completion of a merger that would put the liberal network under the Discovery channel.
More Than a Board Member
Malone, in fact, is more than a Discovery board member; he’s its chair and largest shareholder. CNN, started by Ted Turner and now owned by AT&T, is part of an $85 billion acquisition by Discovery, expected to be finalized this year.
Malone’s links to politics include being an active supporter — he’s currently a board member — of the Cato Institute, the Washington-based libertarian think tank that espouses the privatization of numerous US government agencies and programs, including Social Security and the Postal Service.
His Liberty Media empire was among the big contributors to Donald Trump’s 2017 inauguration festivities in Washington, DC, with personal and corporate contributions adding up to $1 million.
He has since said that he thinks Trump was a great president but he would vote for Bloomberg because Trump had too many people who hated him. I don’t know if he voted for Biden in the end but I doubt it. He is a dyed in the wool wingnut. And he’s calling the shots.
The future of democracy in the United States is at stake amid the polarization and deadlock of the political process in Washington. Media are increasingly under the control of right-wing zealots like Rupert Murdoch and those behind Newsmax, etc., who are poisoning communications.
Critically needed now is an independent, honest, credible press providing, yes, aggressive accountability journalism — a light to enable people to find their way out of this mess. Instead, the nation’s oldest cable news channel will soon be under the control of someone who appears to want it to follow the “interesting trajectory” of Fox News.
It’s a white, nationalist propaganda arm of the Republican Party that was too right wing for Jonah Goldberg, Stephen Hayes and Chris Wallace. What does that tell you?
The “independent state legislature doctrine” comes to the high court
I’ve been writing about this subject for a while and this is very, very worrisome:
In October 2020, with the presidential election looming, four conservative justices issued opinions that seemed prepared to endorse a legal theory that would radically reshape how federal elections are conducted. The theory would give state legislatures independent power, not subject to review by state courts, to set election rules at odds with state constitutions, and to draw congressional maps warped by partisan gerrymandering.
But the Supreme Court did not resolve the existence or scope of the theory, often called the independent state legislature doctrine, in cases concerning the 2020 election.
The question arose again this March in an emergency application from Republicans in North Carolina who wanted to restore a voting map drawn by the State Legislature and rejected as a partisan gerrymander by the State Supreme Court.
“The question presented here,” the application said, “goes to the very core of this nation’s democratic republic: what entity has the constitutional authority to set the rules of the road for federal elections.”
Three justices said they would have granted the application.
“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” Justice Samuel A. Alito Jr. wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.
Justice Brett M. Kavanaugh agreed that the question was important. “The issue is almost certain to keep arising until the court definitively resolves it,” he wrote.
But he said the court should consider it in an orderly fashion, outside the context of an approaching election. He wrote that the court should grant a petition seeking review on the merits “in an appropriate case — either in this case from North Carolina or in a similar case from another state.”
The petition in the case from North Carolina, Moore v. Harper, No. 21-1271, has now arrived at the court, and the justices are set to consider whether to grant review at their private conference next week. It takes only four votes to grant review, and four justices have already indicated that they are interested in the case.
Indeed, the court seems to be itching to act. When the parties urging the court to deny review asked for a 60-day extension to file their briefs, the court granted them just 30 days, ensuring that it could consider the petition before the justices leave for their summer break. If the court grants review this month, the case could be argued in the fall and decided in 2023.
The consequences of the decision could be enormous, said Richard L. Hasen, a law professor at the University of California, Irvine, who is about to relocate to U.C.L.A.
“The independent state legislature theory has been an 800-pound gorilla brooding in the background of election law cases working their way up from state courts,” he said.
“In its most extreme form, it would not only rework the balance of power in protecting voting rights in states from state supreme courts and executive agencies to state legislatures,” he said. “It would also give the Supreme Court a potential excuse to interfere with presidential election results any time a state court or agency has relied on a state constitution to give voters more protections than those afforded by the U.S. Constitution.”
The North Carolina case concerns the Constitution’s Elections Clause. It says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
That means, the pending petition argued, that the state legislature has sole responsibility among state institutions for drawing congressional districts and that state courts have no role to play.
Lawyers defending the North Carolina Supreme Court’s ruling said that was a profound misreading of the clause. They added that the case was a poor vehicle for resolution of the question, as the legislature had itself authorized state courts to review redistricting legislation.
They cited a new article by two prominent constitutional scholars — Vikram David Amar, the dean of the University of Illinois College of Law, and Akhil Reed Amar, a law professor at Yale — to be published in The Supreme Court Review. It argued that focusing on the word “legislature” in isolation did violence to the original meaning of the clause.
The North Carolina Supreme Court also rejected the argument that it was not entitled to review the actions of the state legislature, saying that would be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”
Some precedents of the U.S. Supreme Court also tend to undermine the independent state legislature doctrine.
When the court closed the doors of federal courts to claims of partisan gerrymandering in Rucho v. Common Cause in 2019, Chief Justice John G. Roberts Jr., writing for the five most conservative members of the court, said state courts could continue to hear such cases — including in the context of congressional redistricting.
In 2015, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the court ruled that Arizona’s voters were entitled to try to make the process of drawing congressional district lines less partisan by creating an independent redistricting commission notwithstanding the reference to “legislature” in the Elections Clause.
“Nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of provisions of the state’s constitution,” Justice Ruth Bader Ginsburg, who died in 2020, wrote in the majority opinion in the 5-to-4 decision.
The balance of power on the court has shifted since then, and Justice Amy Coney Barrett, who filled the seat previously held by Justice Ginsburg, may now hold the decisive vote.
I expect they will do this, which will basically rig presidential elections in favor of Republicans going forward. They have more states, most of them small rural and sparsely populated, and there is no reason to think that’s going to change. It’s the inevitable result of the mistake that is the electoral college once the Republican party decided they didn’t care if they have the support of a majority of the American people.
The destructiveness of this decision if they make it is incalculable. These justices would be neutering state supreme courts in the name of states’ rights in order to ensure GOP power. There’s no other way to think about it. In Bush v. Gore, Justice John Paul Stevens wrote a forceful dissent that famously made this point:
What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’ s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’ s Presidential election, the identity of the loser is perfectly clear. It is the Nation’ s confidence in the judge as an impartial guardian of the rule of law.
If they do this, the Supremes will have taken a fringe position held by Scalia and Thomas in that case and turned it into the law of the land — and permanently damaged our electoral system and the credibility of the judiciary. It’s a devastating prospect.
NYT headline about violent coup to topple multi party electoral order of US republic apes talking point of party that orchestrated and covers up for sedition by casting attempt at national reckoning & accountability as a political horse race stunt
New revised headline hardly better — still sets up bipartisan Congressional investigation of orchestrated violent attack on the republic as a partisan Democratic ploy to expose Republicans “role” – as if there was any other role
Originally tweeted by Philip Gourevitch (@PGourevitch) on June 7, 2022.
This has me as worried as anything. The media is setting up a narrative of “nobody cares about this old news” by asking every Democrat who appeared on the TV “will anyone tune in? Isn’t inflation more of a concern right now?” They insist on casting this as a partisan game instead of a genuine fight for democracy. It is a partisan fight, but that’s because one party has gone rogue and is trying to usurp our democratic system in order to maintain power.
It’s not debatable that the Democrats won the last election. They were not the ones who attempted a coup to overturn the results. They invited the Republicans to participate in a bipartisan commission investigation into what happened and they refused. And then they insisted on putting partisan firebrands on the House committee in order to turn it into a sideshow and the Speaker said no.
It’s clear she made the right decision. Look at what they are doing in advance of the hearings this week:
That’s not Louis Gohmert or Marjorie Taylor Greene. It’s Marco Rubio, once considered the Great Latino Hope of the GOP, running for re-election by being the Trumpy smart ass he once condemned. They have all become juvenile bullies, just like Trump and they have zero respect for the constitution or our democracy.