Month: July 2022

One woman’s consequences are another man’s advantages

This day may be why the Equal Rights Amendment struggled for ratification. Opponents needed to keep it from becoming an obstacle to overturning Roe v. Wade. The Supreme Court’s Dobbs decision overturning Roe is an atrocity for women’s equality. By intention.

The American fringe right has longed to return to the halcyon days of the 1950s that never were. Of barefoot and pregnant and poodle skirts, but without all that bother about strong unions, a muscular middle class, and Brown v. Board. “Gee our old LaSalle ran great,” sang Archie and Edith.

What Dobbs will do for men anxious about their preeminence in a world of working women and brown-skinned immigrants is take half the population back there without needing a plutonium-fueled DeLorean. All it took were some Supreme Court justices nominated by a president who lost the popular vote in both his elections and attempted an insurrection.

If Associate Justice Clarence Thomas has his way, we’ll return to those days, too, by restricting access to contraception. The economic impacts on women will resemble the effects of red-lining on the generational net worth of Black families.

The New Yorker‘s Sheelah Kolhatkar writes:

The concept of providing support for working parents through paid family leave and affordable child care is already controversial. “We don’t support families. We don’t support people who are bearing children,” Khiara M. Bridges, a professor of law at the U.C. Berkeley School of Law, told me. Restricting access to contraception would “exacerbate inequality that already exists. The wealthy will be able to control the timing and spacing of their children, and those who are poor and working class will not. It’s folks who are unprivileged who will be forced to resort to unsafe methods of avoiding pregnancy or terminating pregnancy. Or be forced into a state of constant childbearing.”

Access to contraception was established by rulings in two Supreme Court cases, Griswold v. Connecticut, in 1965, which found that states could not restrict access to birth control for married couples, and Eisenstadt v. Baird, in 1972, which extended that same right to unmarried people. The contraceptive choices available then were somewhat different from what’s available now, but they gave women greater control over when they became pregnant and with whom, and that change had undeniable economic benefits. In the first major study of how the dissemination of the birth-control pill affected young, single women in college, Goldin and Lawrence F. Katz, also an economics professor at Harvard, found that the education and career choices of women changed dramatically, and the average age of marriage jumped up, after the pill became widely available. In 1970, for example, women comprised ten per cent of first-year law-school students; in 1980, they made up thirty-six per cent. And almost fifty per cent of college-graduate women born in 1950 got married before age twenty-three; fewer than thirty per cent of women born in 1957, who would have reached adulthood several years after the Eisenstadt v. Baird decision, were married by age twenty-three. All of these factors contributed to greater earning power and financial resources for the women involved. A later study credited the pill with helping to narrow the gap in pay between men and women, decreasing it by ten per cent in the nineteen-eighties, and then an additional thirty-one per cent in the nineties.

Conservative legislators have already tightened access to contraception in several states. Science has nothing to do with why. The religious beliefs of a minority of Americans have replaced facts in law, says Wendy Parmet, the co-director of the Center for Health Policy and Law at Northeastern University:

“I don’t think whatever gains women have made in the workplace and in political representation are guaranteed. If the Court moved us back to the nineteen-fifties in terms of access to contraception and abortion, well then, I think we would have some of the same social and economic consequences we had then.”

One woman’s consequences are another man’s economic and social advantages. In Africa, in Asia, and in the Arab world, women still walk “two steps behind” men economically.

“There is no doubt that culture and religion play some role, but the fact remains that over the past 30 years, and particularly in the last decade, we have seen the rising tide of very conservative forces in [the Arab world] – largely supported by regional governments themselves – that are promoting a regressive agenda towards women,” says Sanam Anderlini, co-founder of the International Civil Society Action Network (ICAN) and a senior fellow at the Center for International Studies at the Massachusetts Institute of Technology (MIT).

Here as well. Those suffering status anxiety support a revanchist movement intent on keeping this a man’s world. They now hold a super-majority on the U.S. Supreme Court.

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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.

Heroes and yes-men in the Trump White House

Carol Leonnig wrote the book on the Secret Service and she weighs in on the latest brouhaha, here:

A drumbeat of revelations from the House Jan. 6 committee has revealed two dueling identities of the Secret Service under former president Donald Trump — gutsy heroes who blocked the president from a dangerous plan to accompany rioters at the Capitol and political yes-men who were willing to enable his efforts to overturn the results of the 2020 election.

The new depiction of the Secret Service — which has endured a decade of controversy from a prostitution scandal and White House security missteps during the Obama years to allegations of politicization under Trump — has cast new doubt on the independence and credibility of the legendary presidential protective agency.

On one end of Pennsylvania Avenue, Trump unsuccessfully cajoled his agents to drive him to Capitol Hill, where he would have joined a mob of his supporters descending violently on the grand symbol of democracy. Some 45 minutes later on the other end, former vice president Mike Pence refused a request of his security detail to get into an armored car — concerned, according to testimony, that his protectors would take him away from the Capitol and prevent him from carrying out his duty to oversee the final count of electoral college votes.

Earlier that day, according to former White House aide Cassidy Hutchinson, Trump had complained that the Secret Service’s “mags,” used to screen people for weapons, were preventing armed supporters from entering his “Stop the Steal” rally on the Ellipse.

“Here you have the Service thrown into a day that was crazy Banana Republic stuff,” said Bill Gage, a former counterassault agent in the Secret Service who protected presidents George W. Bush and Obama. “My God. What would have happened if the agents had let Trump go to the Capitol?”

At the center of the current storm is one key agent — Tony Ornato — who held a highly unusual role in Trump’s orbit. The onetime head of the president’s security detail temporarily left his Secret Service job to work as deputy White House chief of staff. The political assignment was unprecedented in the Secret Service, as Ornato effectively crossed over from civil servant to become a key part of Trump’s effort to get reelected.

Through an agency spokesperson, Ornato has denied Hutchinson’s blockbuster claims given under oath Tuesday that he told her that Trump had lunged at the steering wheel of the Secret Service vehicle carrying the president away from his Jan. 6 rally and that he had reached toward the head of his detail, Robert Engel, in a fit of rage over not being taken to the Capitol.

Ornato and Engel were previously questioned by the committee about that day, and both had confirmed that Trump demanded to be taken to the Capitol and was furious about being told they would not do so, according to people familiar with their testimony. Neither had been asked about Trump’s alleged physical altercation in the car, according to two people briefed on their testimony.

But the aftershocks of Hutchinson’s appearance have continued.

Lawmakers on the committee said Ornato had said in his initial testimony that he was unable to recall other actions and statements by Trump on Jan. 6 that other witnesses had described in great detail. Both have told their superiors they would be willing to deliver sworn testimony to the committee, and people with knowledge of the committee’s deliberations said they expect the agents to be called soon.

As Ornato and Engel watched Hutchinson’s testimony Tuesday, they immediately disputed to agency officials that Trump had lunged at the steering wheel and Engel, and Ornato insisted he had not told Hutchinson this, according to two law enforcement officials. The Secret Service prepared a line-by-line public statement that afternoon to counter specific points, the officials said, and also note that the committee never asked Ornato and Engel about this allegation.

Hutchinson says Trump lunged at Secret Service

But on Tuesday evening, officials at the Department of Homeland Security, the parent agency of the Secret Service, instructed the Service not to issue a public statement and to instead offer the agents as witnesses to give testimony under oath, according to three people familiar with the decision.

DHS officials did not respond Friday to a request for comment.

Ornato and Engel did not respond to requests for comment. Secret Service spokesman Anthony Guglielmi said agents performed their job on a day under unprecedented challenges, and yet none of the nation’s leaders were harmed.

“The sworn and professional men and women of the Secret Service execute our mission in an exceptional manner with the highest levels of distinction,” Guglielmi said. “This was no exception on Jan. 6, 2021.”

Former Secret Service agents and national security officials emphasized the even more horrible events that could have unfolded on Jan. 6 if either Pence’s or Trump’s detail leaders had made different choices. They described the unimaginable scenario in which the president and vice president set out on a violent collision course at the Capitol, two leaders with opposing goals meeting up, accompanied by their dueling security guards and Trump’s chaotic army of protesters. Trump, after all, had been pressuring Pence to refuse to go along with the final count of electors, and some rioters were chanting, “Hang Mike Pence!”

Agents who had sworn to protect the president’s and vice president’s lives with their own made choices on the fly that day — refusing a direct order from Trump and acceding to the vice president’s wishes. Together, the agents’ game-day decisions helped keep democracy on the rails, several former agents said.

“Bobby Engel did the right thing and says, `No sir, this is a dangerous situation, we’re not taking you to the Capitol’,” said Jim Helminski, a retired Secret Service official and former head of Biden’s security detail when he was vice president. “If they had [taken him], there would have undoubtedly been a potentially dangerous confrontation between the vice president and the president.”

“If the president finds Pence and they get into an argument — it really is scary,” Helminski added. “Does the vice president’s detail now protect the vice president from the presidential detail?”

People briefed on the two detail leaders’ accounts of Jan. 6 to the congressional committee said both Trump’s and Pence’s detail leaders were making decisions in a myopic vacuum: They were solely focused on the immediate security risks to the national leader they were charged with protecting, and yet their choices aided a peaceful transfer of power.

“Our history would be so changed if things had happened differently,” Gage said. “What if Engel said, `We can make this happen for you Mr. President?’”

Yet the Secret Service’s claim of being politically independent — illustrated by the familiar agents’ maxim “the people elect ‘em, we protect ‘em” — was tested by Trump’s tenure in the White House.

Trump had relied on Ornato to carry out plans that many agents complained put them, the public and the president in danger, according to interviews with more than a dozen Secret Service employees and administration officials and internal records. That included using the Secret Service staff to travel to massive campaign rallies as deadly coronavirus cases surged in the summer of 2020, and to forcibly clear peaceful crowds from Lafayette Square in June 2020 so Trump could appear tough on Black Lives Matter protesters for a photo op.

On Jan. 6, Trump’s ability to make Secret Service leadership bend to his will had created significant doubt for several Trump administration officials about the motives of senior Secret Service agents, according to committee testimony and Washington Post interviews with officials.

With an hour-long speech on the Ellipse that ended just after 1 p.m., Trump had fomented a mob-like march to the Capitol that he hoped would help him block the certification of Biden’s victory. Before he had finished speaking, a small band of protesters had already begun breaking down outer barricades at the Capitol and marching up the steps toward the halls of Congress.

Pence and his team worried his own Secret Service agents might block him from his goals. Despite an armed mob breaking through the windows of the Capitol, the vice president insisted on remaining in the Capitol so he could finish the job of formally approving the results of the presidential election. As rioters stormed through the hallways, Pence’s detail leader insisted on taking a reluctant Pence from a hidden office to the Capitol basement. But Pence refused his top agent’s recommendation to climb into his armored limousine, for fear agents might drive him away from the building.

Keith Kellogg, a Trump aide who then was working as Pence’s national security adviser, had stressed to Ornato that the vice president intended on staying inside the Capitol to finish the job, according to the book “I Alone Can Fix It.” He told Ornato the Secret Service detail had better not try to forcibly remove Pence from the building.

“I know you guys too well,” Kellogg said. “You’ll fly him to Alaska if you have a chance. Don’t do it.”

Ornato, through a Secret Service spokesperson, has previously denied that this conversation took place.

If Ornato and Engel testify before the Jan. 6 committee, theycould face a wide range of questions not only about Trump’s behavior that day but more broadly concerning the extent to which they served the interests of the presidency— or the man who was president.

Two former Trump White House aides took to Twitter Wednesday to say Ornato has a pattern of denying conversations that they know took place.

“Tony Ornato lied about me too,” tweeted Alyssa Farah, former White House communications director. She said that she spoke with Ornato and White House Chief of Staff Mark Meadows before the forcible clearing of Lafayette Square in June 2020, in which they refused to warn reporters who were staged at the park that they needed to move.

“Tony later lied & said the exchange never happened,” Farah wrote.

Olivia Troye, a former senior national security aide to Pence, took to Twitter as well to express her views of Ornato.

“Those of us who worked w/ Tony know where his loyalties lie,” she wrote. “He should testify under oath.”

If he’s a true Trumper he’ll have no trouble lying under oath. Why is he still in the agency? Shouldn’t he be down in Mar-a-lago giving Trump a pedicure?

I wonder how many like him are around Biden and Harris?

Their movement is growing

There has always been a blinding logical flaw in anti-abortion ideology: doctors are murderers but the woman who seeks an abortion is innocent. It makes no sense and cannot stand up to any rational scrutiny. Nonetheless the anti-abortion mob has always insisted it does not seek to punish women, for obvious reasons. Putting millions of citizens in jail for something extremely common and unstoppable, regardless of its legality, is completely barbaric and is not supported by the vast majority of Americans.

That doesn’t mean it won’t happen. As we’ve seen it took barely a handful of years for Republicans to decide that there must be no exceptions for rape and incest even though those exceptions had been the consensus for decades.

Hours after the Supreme Court overturned Roe v. Wade last week, a man with a wiry, squared-off beard and a metal cross around his neck celebrated with his team at a Brazilian steakhouse. He pulled out his phone to livestream to his followers.

“We have delivered a huge blow to the enemy and to this industry,” the man, Jeff Durbin, said. But, he explained, “our work has just really begun.”

“Even the states that have trigger laws,” which ban abortion at conception without exceptions for rape or incest, did not go far enough, Mr. Durbin, a pastor in the greater Phoenix area, said. “They do not believe that the woman should ever be punished.”

Resistance to “the question of whether or not people who murder their children in the wombs are guilty,” he said, “is going to have to be something we have to overcome, because women are still going to be killing their children in the womb.”

Even as those in the anti-abortion movement celebrate their nation-changing Supreme Court victory, there are divisions over where to go next. The most extreme, like Mr. Durbin, want to pursue what they call “abortion abolition,” a move to criminalize abortion from conception as homicide, and hold women who have the procedure responsible — a position that in some states could make those women eligible for the death penalty. That position is at odds with the anti-abortion mainstream, which opposes criminalizing women and focuses on prosecuting providers.

Many people who oppose abortion believe that life begins at conception and that abortion is murder. Abolitionists follow that thinking to what they believe is the logical, and uncompromising, conclusion: From the moment of conception, abolitionists want to give the fetus equal protection as a person under the 14th Amendment.

[…]

Abolitionists have long represented a radical fringe, minimized by prominent mainstream national groups who have focused on advancing incremental abortion restrictions.

For this article, The Times spoke to one of the leaders of an “abortion abolitionist” group to understand how this fringe movement is gaining steam and what it could mean for women in a post Roe world. They want to ban the procedure without exception, criminalize abortion as homicide, and hold women who have the procedure responsible under the law.

Some readers may wonder why we focused on a group that for years represented a radical fringe that has unsettled mainstream anti-abortion groups. But now that Roe is overturned, abolitionists see an opening to advance their goals and seize the broader movement’s future.

Abolitionist views have picked up support in the ultraconservative wing of the Southern Baptist Convention, the country’s largest Protestant denomination. A group of 23 abolitionist groups filed an amicus brief with the Supreme Court in the case to overturn Roe. And YouTube has become a place where their views now reach hundreds of thousands of people.

Though polls show most Americans support abortion rights, about one in three adults say women who have an abortion if it is illegal should serve jail time, or pay a fine, or do community service, according to a March study by the Pew Research Center. After Roe was overturned, some states have already banned abortion without exceptions for rape or incest.Elizabeth Diasfaith and politics reporter

Abortion is now banned in at least seven states, with several more to expected to outlaw the procedure soon.

But the abolitionist reach has been growing over the past year, largely through online activism and targeted efforts in some state legislatures and churches. Mr. Durbin’s group, End Abortion Now, which started in 2017, filed an amicus brief in the recent Supreme Court case overturning Roe along with the Foundation to Abolish Abortion and 21 other like-minded groups from states like Idaho and Pennsylvania. His Apologia Studios YouTube channel has more than 300,000 subscribers, and he leads Apologia Church, a congregation of about 700 people.

They see the Roe reversal as a significant boost to their argument, and an opening to advance their goals and seize the broader movement’s future.

Abolitionist views have picked up support in the ultraconservative wing of the Southern Baptist Convention, the country’s largest Protestant denomination. “We have been listening to and following the wrong leaders,” Tom Ascol, a prominent ultraconservative Southern Baptist pastor, said a week after the Supreme Court decision. Mr. Ascol came in second in the recent election for president of the Southern Baptist Convention.

“The future of the anti-abortion movement will be led by those who hold to a consistent and genuinely ‘pro-life’ ethic, which is to say that since life begins at conception and fertilization, the full personhood of an unborn life must entail equal protection under the law that is afforded to all other persons in the U.S. Constitution,” he said.

“All mothers who abort their children are culpable at some level, though not necessarily equally culpable for homicide,” he said.

Some states have already banned abortion without exceptions for rape or incest. State legislatures can no longer use Roe as an excuse to avoid abolitionist proposals, Mr. Durbin said on his livestream. He urged churches to join his group and expand their protests from abortion clinics to places like Target and CVS where women might access medication abortion.

Mr. Durbin, driven by his set of Christian beliefs, and others in the abolitionist coalition recently pushed a bill in Louisiana that would have classified abortion as homicide and enabled prosecutors to bring criminal cases against women who end a pregnancy. The measure failed, but it got further than any of the other “equal protection” bills abolitionists have worked to introduce in about a dozen states over the past two years.Mr. Durbin, driven by his set of Christian beliefs, recently supported a bill in Louisiana that would have classified abortion as homicide and enabled prosecutors to bring criminal cases against women who end a pregnancy. The measure failed. Credit…Adriana Zehbrauskas for The New York Times

The bill generated significant opposition from other anti-abortion groups. In an open letter, about 70 anti-abortion groups urged all state legislators to reject such initiatives.

“As national and state pro-life organizations, representing tens of millions of pro-life men, women and children across the country, let us be clear: We state unequivocally that any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts,” the letter stated. It was signed by groups including National Right to Life, Susan B. Anthony Pro-Life America and Americans United for Life. Other groups, like Students for Life, say they want to “abolish abortion” and make it “unthinkable and unavailable” but oppose criminalization of women.

Privately, some leaders of mainstream groups worry about how quickly abolitionists have gained a foothold. In Texas, the Foundation to Abolish Abortion opposed the state’s six-week ban because it “discriminates against someone who doesn’t have a detectable heartbeat,” Bradley Pierce, the group’s president, said. A group called Free the States is pushing abolitionist campaigns from Oklahoma.

About one in three American adults believe that, if abortion is illegal, women who have the procedure should serve jail time or pay a fine or do community service, according to a Pew Research Center study conducted in March. Men, white evangelicals and Republicans are among the most likely to believe that a woman should be punished, the study found.

They reflect an undercurrent of the anti-abortion movement that Donald J. Trump elevated in 2016, when he said that women who receive abortions should receive “some form of punishment” if the procedure were banned in the United States, before bipartisan outrage pushed him to recant.

Already, some prosecutors have used homicide and child-abuse laws to charge women for things like inducing abortion or experiencing miscarriage; about 1,300 women have faced such charges or arrests since 2006, according to National Advocates for Pregnant Women.

Ultimately, abolitionists believe they are fighting a holy Christian mission, answerable to the God they worship.

In their amicus brief, they wrote, “The court is not only bound by the text of the Constitution, but it is also bound by the limits on human civil authority revealed by God.”

To stop a woman from entering an abortion clinic, you have about 15 seconds to make her change her mind, Mr. Durbin said, casually holding a yellow Yerba can in his Tempe, Ariz., office recently, and pointing to a stack of signs his team takes to clinics that say, “Babies are murdered here.”

Mr. Durbin is working to achieve abolitionist goals with a multipronged approach: evangelizing online and preaching at his church; training congregations on how to keep women from walking into an abortion clinic; and traveling to state legislatures to promote bills classifying abortion as homicide.Mr. Durbin attracts followers through his Apologia Studios YouTube channel in addition to his church. 

The article goes on to tell his story and some of his followers and they are truly pieces of work. There’s one woman who had an abortion when she was young and considers herself a murderer:

“What upsets me most is when the pro-life industry says that women are victims,” she said. “That means I don’t have to take responsibility for myself.”

She started to cry and took her head in her hands. “I’m so sorry,” she said.

She opened her laptop and read aloud from the Old Testament. The passage was about King Belshazzar of ancient Babylon, who was feasting when mysterious fingers of a hand wrote on the wall of his imminent destruction.

“They thought they were impregnable,” she said. Her voice grew shaky.

“Do you know what I did? I killed a baby. It doesn’t get any worse than that,” she said. “Because that is what we were created for. God created us to bear children. To carry them. That is a gift, that is not a curse. That is a gift. And we are special.”

She believed what her pastors taught, even if it meant she would face severe consequences.

“I took a life, I should give my life,” she said. If authorities were to come for her, “I would right now, I would absolutely go to court and say, ‘Yeah, I am a sinner, I did it.’ And if that was my punishment, I would take it.”

After what we’ve seen these last few years do you think these people will remain fringe for long? After all, millions of people embraced the claim that Hillary Clinton, Oprah Winfrey and Tom Hanks were running a child sex trafficking ring out of a pizza parlor. Why wouldn’t the extremist right go here? It’s what they really believe.

Jamelle Bouie shows us what must be done

You need to read the whole thing, to fully understand exactly what he’s proposing. Essentially he’s pointing out that this whole idea that the Supreme Court has unlimited power to decide everything isn’t in the constitution. Per Article III, it certainly has jurisdiction in cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party” and has appellate jurisdiction. However, there’s more to it:

But then the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.”

This is where it gets interesting. The court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.

There are real questions about the scope of congressional power to regulate the Supreme Court. If Congress has complete control over the court’s appellate jurisdiction, then there are no real limits as to what it could do to shape and structure the court, threatening the separation of powers. As James Madison said with regard to the Bank Bill of 1791, “An interpretation that destroys the very characteristic of the government cannot be just.”

But this is nearly a moot point. The modern Congress has largely relinquished its power to regulate and structure the court. The final clause of Article 3, Section 2 is not quite a dead letter, but it is close.

Ok. But if Alito and the boys (and girl) are going to cherry pick history and insist that they have done a Vulcan mind meld with the founders as to their intent, which is daft, then this little bit of history should be relevant as well, no?

Anyway:

What is a dead letter (and which I’ve also written about before) is the Guarantee Clause of the Constitution, which states that

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The reason for the clause is straightforward. “The more intimate the nature of such a Union may be,” Madison wrote in Federalist No. 43, “the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained.”

But neither Congress nor the courts have ever said, with any precision, what it means for the United States to guarantee to every state a “republican form of government.” The most we have is Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”

This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”

A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.

Since Reconstruction, however, no Congress has wanted to use the Guarantee Clause to protect the rights and liberties of Americans. It’s a vestigial part of our constitutional history, atrophied from disuse.

The same goes for sections 2 and 3 of the 14th Amendment. Section 2 states that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” It then specifies that if the right to vote for federal office is “denied” or “in any way abridged, except for participation in rebellion” to “any of the male inhabitants” of such a state, then “the basis of representation therein shall be reduced” in proportion to the denial in question.

He goes on to discuss the provision of section 3 that deals with banning those who participate in rebellion or insurrection from holding office. Seems relevant.

It’s here that you can see why I think it’s important to talk about these seemingly idle provisions. As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the counter-majoritarian institutions of the American political system, cloaking their views in a distorted version of our Constitution, where self-government means minority rule and the bugaboos of right-wing culture warriors are somehow “deeply rooted” in our “history and traditions.”

But the Republic is not defenseless. The Constitution gives our elected officials the power to restrain a lawless Supreme Court, protect citizens from the “sinister legislation” of the states, punish those states for depriving their residents of the right to vote and expel insurrectionists from Congress.

They are drastic measures that would break the norms of American politics. They might even spark a constitutional crisis over the power and authority of Congress.

But let’s not be naïve. The norms of American politics were shattered when Donald Trump organized a conspiracy to subvert the presidential election. They were shattered again when he sent an armed mob of supporters to attack the Capitol and stop Congress from certifying the votes of the Electoral College. And they were shattered one more time in the early hours of the next day, when, even after all that, 147 of his congressional allies voted to overturn election results.

As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.

The ground has shifted. The game has changed. The only question left is whether our leaders have the strength, fortitude and audacity to forge a new path for American democracy — and if they don’t, whether it is finally time for us to find ones who do.

Yep. We are not helpless. But it’s going to take guts to do what needs to be done.

Don Moynihan offers a perfect illustration of what Republicans are doing to gain and retain power no matter what.

The Prehn case in Wisconsin offers a telling data-point about democratic erosion in the states, where gerrymandered state legislatures can effectively maintain their policy control of the executive even when they lose the only elections they have not rigged.

The facts are relatively straightforward: Frederick Prehn was appointed by Scott Walker to the state’s Natural Resources Board. His term expired in May of 2021. He refused to step down. Prehn argued, and the Wisconsin state supreme court agreed, that he was allowed to stay in place until a new appointee was named by the Governor, and approved by the Senate.

The realpolitik of the situation is less straightforward. Republicans in the state legislature do not believe that the Democratic Governor, Tony Evers, should have the power to appoint officials, a power that all of his predecessors held. They have operated on this belief by refusing to schedule hearings, or holding hearings when they determined that they wanted to fire the acting Cabinet officials. For example, after a mainstream nominee for the Secretary of Agriculture, Trade and Consumer Protection criticized the legislature for not providing enough funding to address farm suicides, the Senate convened a hearing, and voted him down.

The message was clear: regardless of the fact that their gubernatorial candidate lost, the Republican legislature had decided their party would continue to run the executive branch.

This extremism was surprising in its novelty, if not its intent. As soon as Republican Scott Walker lost the 2018 election, the legislature used a lame-duck session to remove from the new Democratic Governor and Attorney General many of their traditional powers. For example, Evers was restricted from determining how Medicaid could be implemented, even though Medicaid expansion was a signature campaign issue that helped get him elected. Walker signed these laws, and the conservative-leaning supreme court blessed them. All of this occurred in the aftermath of an election where gerrymandering meant that Democratic candidates had won considerably more votes than Republicans for the state legislature, but gerrymandering allowed Republicans to control 63 of 99 state Assembly seats.

The state supreme court and legislature also largely cut Evers out of the process of redistricting. Despite Evers victory, they decided that the extreme gerrymander that has corrupted every part of Wisconsin politics will remain in place.

With the Prehn case, the Governor nominated a replacement, but the Senate refuses to hold a hearing. And so Prehn stays in place. Just months before the end of Evers four-year term he has been effectively stymied from imprinting his policy preferences in the area of natural resources, which have remained in Republican control. Prehn has been crucial in advancing a series of environmental decisions that ignored state scientists, such as allowing higher than recommended levels of chemicals in the state’s groundwater.

The state court’s refusal to acknowledge the deliberate subversion by the legislature has broader implications. As the New York Times reports:

A similar move by the Senate has allowed Republicans who refused to resign to remain on the board that oversees the state’s 16 public technical colleges, which enroll 250,000 students annually. The Senate also has refused to confirm Mr. Evers’s appointees to the Board of Regents that governs the public university system. He appointed regents to replace ones who resigned when their terms expired. But the Senate could remove them should a Republican win the governor’s race in November.

If a Republican wins in November, the Governor will be granted the right to pick political appointees again. If Evers wins, the state supreme court has ensured that the Governor will no longer hold such basic executive powers.

In the Wisconsin competitive authoritarian state the gerrymandered legislature and the supreme court are unwilling to accept the risk that the voters might disagree with them. And so they have established a political system where it’s heads I win, tails you lose.

He points out that it’s not just Trump. This has been happening throughout the party:

It’s not just a few bad apples: it is an entire political party, which extends to the courts

The other striking element of the Prehn case is the level of coordination it took. A political appointee, a former Governor, a state legislature, and a state supreme court worked together to enable this to happen. The state legislature had to refuse to allow the Governor to nominate someone. The appointee needed that formal excuse to stay in place. The state legislature then had to approve spending tax dollars in order to hire lawyers to defend their anti-democratic stance, which they did. And the state supreme court needed this fiction of an unfilled vacancy to allow Prehn, and their party, to retain control of a policy domain even when they lost the election. Look closer and you see a deeply connected network. The nominal swing vote on the court, Brian Hagedorn, also was once a political appointee of former Governor Walker.

The defiance of democratic outcomes is explicit

Public records have shown Prehn reaching out to Scott Walker, as well to other key lawmakers and lobbyists, including the Senate Majority Leader Devin LeMahieu. They reveal not just the coordination discussed above, but the explicit indifference to democracy.

Emailing Walker, Prehn acknowledges

that he would not be reappointed by the new Governor: the chance of Evers reappointing me are slim to none

that the policies will change if he leaves: The change in priorities with the NRB is becoming staggering in the last 6 to 10 months. Maybe they realize they’ve only got a couple of years

he is coordinating with legislators to ensure he cannot be replaced: I heard from legislators they do not intend on confirming anybody soon…If I stay on, your appointees [will] hold majority for a while longer.

what he is doing is ethically questionable: I’m wondering if you think it’s improper for me to stay on until somebody’s confirmed…is it really the proper thing to do?

“If possible, stay on,” Walker responded the same day. “Any voices that can counter their racial view of the world are good.”1 

In other words, Prehn accepts that what he is doing runs contrary to how elections are supposed to work — a new Governor picks appointees to reflect different policies from his predecessors — but he went ahead with Walker’s blessing.

It’s not the only case where Republican’s drop the formalistic excuses and are explicit about their indifference to democratic outcomes. In responding to the Prehn case, the Senate leader LeMahieu said: “If Tony Evers had all his appointees, all his emergency orders and all his budgets there is no doubt the State of Wisconsin would be much worse off than we are.”

This is an unremarkable political opinion. What is dangerous for democracy is that Senator LeMahieu does not feel that voters should be trusted to agree with him. He, and the broader state Republican apparatus, made this case to the voters, and lost in an election where their gerrymandering had not determined the outcome.

And when they lost, they decided to ignore the outcome of the election.

Whatever else you call this, it is not a democracy.

No it’s not. It’s minoritarian authoritarianism. If they had a sense of shame, this couldn’t happen. But they don’t.

Will we see “counters” of women who’ve died from Dobbs?

There are counters for those who’ve died from Covid, right?

Stories below involve women who wanted to give birth. Some almost died. But the tales illustrate how wrong-headed it is to leave these matters to the state so religious zealots might punish women who have sex for any reason other than procreation, even when the sex was rape or incest.

Watch the women in the audience react to Debbie Reynolds speaking of losing a pregancy in pre-Roe America. “They finally agreed, some board…”

What she is describing happened to me in 1986. I was pregnant, fetus died at 12 weeks. I was told that eventually my body would expel the dead fetus. At at 20 weeks I finally went into labor. I was forced to go through the entire experience with out pain medication, 1/2

— angie (@aschamp) June 29, 2022

Hoping I didn’t go septic. My pain got worse and I was scared. I begged to get a D&C and was still told no. Because politicians who have no right to butt into my healthcare needs decided their say so was more important than MINE.

— Marlena Stell (@MarlenaStell) June 30, 2022

2/I get a call from a physician who tells me that our patient is 28 weeks pregnant and the fetus is dying from a naturally occurring condition. As the fetus dies, the woman’s body can quickly become infected and she can die as well. So, why are they calling me?

— Lisa Larson-Bunnell (@L_LarsonBunnell) June 28, 2022

4/Let me repeat that: me, a lawyer, has to help a trained physician make the decision of whether their patient is near enough to death (under the law) for them to take action that is agreed to by the patient (and often their spouse).

— Lisa Larson-Bunnell (@L_LarsonBunnell) June 28, 2022

The woman below works at a cemetery and handles cremations for women whose children died in the womb. She writes of a recent “late term” abortion:

her mother did everything right. prenatal care the entire pregnancy, no smoking, no drinking, healthy as could be.

the reason for death was "no reason." she did nothing wrong. there was no trauma, no failure on her part, her baby was very much wanted and already loved.

— cait.bsky.social (@punished_cait) June 26, 2022

women don't have hours for their cases to be reviewed and re-reviewed and appealed and decided on. a baby that is dying can quickly turn into a baby that is killing you with it. but the people pushing this legislation don't actually care about that

— cait.bsky.social (@punished_cait) June 26, 2022

Details, details.

● ● ● ● ● ● ● ●

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

Who’s more authentic?

● ● ● ● ● ● ● ●

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

World’s smallest cat

The rusty-spotted cat (Prionailurus rubiginosus) is one of the cat family’s smallest members, of which historical records are known only from India and Sri Lanka. In 2012, it was also recorded in the western Terai of Nepal. Since 2016, the global wild population is listed as Near Threatened on the IUCN Red List as it is fragmented and affected by loss and destruction of its prime habitat, deciduous forests.

Very little is known about the ecology and behaviour of the rusty-spotted cat in the wild. Captive ones are mostly nocturnal but also briefly active during the day.Most wild ones were also recorded after dark. At Horton Plain National Park in Sri Lanka, they were mostly recorded between sunset and sunrise, with limited daytime activity. Several individuals were observed hiding in trees and in caves

It feeds mainly on rodents and birds, but also preys on lizards, frogs, and insects. It hunts primarily on the ground, making rapid, darting movements to catch its prey. It apparently ventures into trees to escape larger predators. Captive females and males both scent-mark their home range by spraying urine.

Sounds pretty familiar …

Groundhog day for authoritarians

What if the coup isn’t the worst of it?

After the wreckage of Watergate, the conventional wisdom embraced the cliché that the coverup was worse than the crime. Actually, that’s still true. But we need to upgrade our hierarchy of horribles.

Politicians will always commit crimes, and some will try to engineer elaborate schemes of concealment. The sins of the powerful are with us always; their essential untrustworthiness was baked into our system of checks and balances.

“If men were angels, no government would be necessary,” James Madison would have tweeted. “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

This, of course, is the tricky part, because it assumes that the institutional and political restraints would hold, and that the American people would want them to.

But what if they didn’t?

What if we had a coup and a coverup, and nobody (by which I mean the GOP) cared?

In 2022, the real danger isn’t just the crime or the coverup, it’s the acceptance.

We know that the nation can survive insurrections and even attempts at obstruction of justice. But can it survive a shrug?

Polls continue to show that the majority of Republican voters still believe the Big Lie, and support Trump.

So what happens if one of the nation’s two dominant political parties decides that it doesn’t care? And is rewarded by the voters for its cynicism and moral nihilism?

This seems like a good time to point out something else: The real threat to democracy is not the Big Lie. It’s something worse.

This is not to suggest that election denialism or conspiracy theories are not dangerous; they are, of course. But the House January 6th Committee has reminded us of something important: The whole Big Lie thing is ludicrous, risible, inane bullshit. It is an entire political belief system based on demented theories about Italian satellites, Venezuelan voting machines, and the hallucinations of Mike Lindell.

But that’s not the point.

You may have noticed how the various claims from Rudy/Dinesh/[Insert name of insane Republican] are ever-shifting. A bogus charge is made, it is debunked, and it is quickly replaced with the next fabrication, and so on. It’s an endless morphing chain of guano-soaked nonsense. But despite the parade of absurdities, no factual refutation ever seems to stick.

Why? Because the lies don’t matter. Only the outcome counts.

In other words, millions of Americans don’t necessarily believe something crazy and bogus. They believe something much worse.

The Big Lie is the pretext for the refusal to accept the peaceful transfer of power to political opponents who are seen as evil and dangerous.

Forget about the dropboxes, mules, and rigged voting machines; nobody really cares about the votes or the counting of votes. It’s not about that; it’s about winning — or to be more precise, defeating the enemy.

A subtext of right-wing politics now is that the other side simply cannot be allowed to win. They hate America, they hate God, and they will destroy everything you hold dear.

It’s the Flight 93 election forever. It’s Jan. 6th . . . forever.

That’s from Never Trumper Charlie Sykes. He’s right, of course. What are we going to do about it?

… because they want majority rule

There is an assault on democracy in this country, but it is by the Left not the Right.

It took us 50 years to overturn Roe vs Wade. We worked hard, won elections, and put conservatives on the court.

5 days after losing at Supreme Court, Democrats want to blow up the Senate!

— Lindsey Graham (@LindseyGrahamSC) June 30, 2022

Josh Marshall:

This is true it took them 50 yrs. But it’s also the first time in history a party plotted to take over the Courts like this. There were 3 Dem appointees on the Court when it decided Roe. And one of those was one of the two dissenters. The Roe Court was dominated by Eisenhower and mostly Nixon appointees. Yes, lots of elections. But the first time in American history any party or movement tried to do such a thing. And when the election thing stopped working they started stealing seats.

The best you can say about the Republican capture of the Courts is that they stole it fair and square, to paraphrase TR. When it wasn’t stealing seats, it was winning elections with the fewest votes, i.e., exploiting the minoritarian quirks of the political system, which is to say to say building up a Court majority overwhelming made up of presidents who got elected without winning the popular vote.

What Graham is complaining about here is that Democrats want to put the whole thing before the peoples representatives with an up or down vote, ie majority rule. Graham is saying that’s not fair. The minority gets to say you can’t vote on it. The Courts power has always rested on the sufferance of political majorities.

The through line through this whole drama is that having captured the Courts through unprecedented political means Republicans like Graham now want to dove headlong onto the fainting couch when the other side wants to repair the damage by political means. And unlike the crafty efforts to steal seats, exploit the minoritarian quirks of the constitution, the remedy is the most foundational of democratic remedies, passing laws by majority vote.

Whether Democrats will be able to pull this off will come down to the results of the November election. Republicans like Graham are so deep in the world of partisan scheming and theft that a majority vote looks like the ultimate travesty. The simple reality is that the corrupt Court majority is the fruit of Republican corruption and the answer is majority rule.

Originally tweeted by Josh Marshall (@joshtpm) on July 1, 2022.