Month: October 2022

Not SCOTUS jurisprudence

Justice Ketanji Brown Jackson heard her first oral arguments before the Supreme Court on Tuesday. Merrill v. Milligan, a key voting rights case this session, arises from a “packing and cracking” challenge to Alabama’s redrawn congressional districts. Over a quarter of Alabamians are black. Yet legislators packed them into a single black-majority congressional distict of the state’s seven.

Jackson and the other two liberal women may have little power on the conservative court, but they mean to make noise about it, explain Dahlia Lithwick and Mark Joseph Stern for Slate:

All three of Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson brought the full force of history, text, original intent, and statutory purpose to the table during arguments about the enforcement of the Voting Rights Act—values the court’s conservatives purport to espouse. In so doing, they highlighted that the state of Alabama, aided and abetted by the court’s so-called textualists and originalists, are engaged in a radical project to engineer a new era of “race blindness” in voting that violates both the Constitution and the Voting Rights Act.

What conservatives mean to do is kill the Voting Rights Act by a thousand cuts, Justice Elena Kagan argued. The court excised Section 5 in Shelby County, promising Section would stand against voting rights violations. The in Brnovich v. DNC, the court assured the country that Section 2 would still provide protection the dilution of the votes of racial minorities. Now Alabama asks the court to eviscerate Section 2. Merrill could be the coup de grâce.

“You’re asking us essentially to cut back substantially on our 40 years of precedent and to make this, too, extremely difficult to prevail on, so what’s left?” Kagan told Alabama’s solicitor general, Edmund LaCour, Jr., who contends that redistricting must be done on a race-neutral basis.

Justice Jackson tells the Alabama solicitor general that the Framers of the 14th Amendment did NOT intend it to be “race neutral or race blind,” so taking race into account to protect minority voting rights is perfectly constitutional. Progressive originalism at work. pic.twitter.com/aCXAq2CnJu

— Mark Joseph Stern (@mjs_DC) October 4, 2022

Kagan also said that under existing precedents, Alabama could only prevail if the court ignored or overruled existing law. Of course, ignoring and overruling existing law is the raison d’etre for the new conservative supermajority, for which precedent is a mere annoyance on the way to its final destination.

Up next was Jackson, who cogently explained that the Alabama legislature’s claim in Merrill is itself rooted in a lie. The 14th Amendment and the Voting Rights Act both explicitly provide for race conscious measures to remediate historic efforts to suppress Black voters. It is not a race blind project and it never was; it wasn’t even intended to be. It is race-conscious on its own terms, and Jackson read from the contemporaneous reports at the drafting to make that very point.

Conservative justices might choose to ignore or distort history to disenfranchise minority voters, but not without the first black woman on the court highlighing “the absurdity of their anti-originalist convictions in a manner that’s perfectly legible to the public.” Jackson means to pull back their black robes to reveal what’s underneath.

https://twitter.com/imillhiser/status/1577439533498601472?s=20&t=1gn0mjmUHryte3pGuJ3-fA

Lithwick and Stern conclude:

Nothing about this looks like color blindness, or like post-racial America, or like neutral, color-blind computer-generated maps. It looks like the vestiges of white supremacy, elevated to a lofty principle of “color blindness” that itself smacks of white supremacy, as three women, two of whom are women of color, call it precisely that. In the midst of a raucous national referendum on the continued legitimacy of the court, perhaps the most important development is that the justices are letting us listen in to these conversations, in real time. The three liberal justices surely already know they will be dissenting for the foreseeable future. They’re focusing on using their voices. We should listen.

God help us when the conservatives get their hands on Moore v. Harper.

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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

The Russians fertilized American divisions. Can we fertilize healing?

A friend from the more rural (read: redder) area of the county described a particularly divisive Republican’s approach to politicking: listen for district voters’ complaints and then “wedge” the hell out of them against Democrats. Leverage the animosity.

It is neither an innovative nor constructive approach, but it works. Derision and division, David Corn wrote, was Rush Limbaugh’s bread and butter.

The Russians, too, realized derision and division was a handy weapon against ideological foes in the west. Anand Giridharadas examines how the Internet Research Agency in St. Petersburg, Russia learned to “speak like Newt” and drive deep wedges between sectors of American society. They sent spies to the U.S. on a cross-country listening tour to find ways to destabilize our politics and society. Russia would turn social media into a strategic weapon (The Atlantic):

In their long conflict with the United States, officials in Russia have many tools of sabotage available to them. But the major investment in the social-media project seemed to reflect a calculation that, of all the vulnerabilities of modern American society, its internal fracturing—countryside against city, niece against uncle, Black against white—was a particular weakness.

Giridharadas describes the effort in some detail, much already familiar. There were trolling tweets, Facebook and Instagram posts in the millions. Some meant to inflame the right, others to inflame the left.

Some posts were outright disinformation; others sought to whip up anger at the truth. But their common aim was to amplify the worst cultural tendencies of an age of division: writing other people off, assuming they would never change their mind, and viewing those who thought differently as needing to be resisted rather than won over.

The fractures were already there, the Russians saw, long before Donald Trump MAGAfied them. Their mission, writes Giridharadas, “far from dropping something on America from outer space, had been to fertilize behaviors already flourishing on American soil.”

Russia’s goal was to destroy faith in democracy itself by undermining the social foundations needed to sustain it. That is, “to undermine citizens’ trust in government, exploit societal fractures, create distrust in the information environment, blur the lines between reality and fiction, undermine trust among communities, and erode confidence in the democratic process” as one report put it.

Giridharadas’s mission here is not to spotlight the damage done, but to suggest a way forward. “Americans have grown alienated from an idea central to democratic theory: that you change things by changing minds—by persuading.” He asks, “If Russian trolls could pull us apart, can we bring ourselves back together?”

A couple of key points.

First, recognize no one is immune to the toxic stew. Ideological rigidity is a reflex, not a theory of change. We need to take a step back from the impulse to view political opponents as intractable mortal enemies. That’s a challenge with people like Marjorie Taylor Greene dim-wittingly nudging fans towards genocide. But, says Alicia Garza, a prominent activist in the Black Lives Matter movement, those who want a “woke” future must make space for the “still-waking.” Giridharadas met activists who view deradicalizing QAnon supporters as a public health problem.

https://twitter.com/SethCotlar/status/1576377501424975872?s=20&t=rQbimuzUPLk7D6YWtXLNCw

Deep canvassing is a kind of craze right now, but it is a longer-term approach to softening attitudes, especially in rural areas, by listening long enough to get beneath Fox-conditioned reactions. But it’s a project for beyond election season and gets little funding or support.

“My discovery in doing this work was that most people are 60–40 around most things,” Steve Deline, a longtime organizer for LGBTQ rights and a co-founder of the New Conversation Initiative, told me. “If we ask them to plant their flag on one side or the other, if we approach them that way, they’re going to do so, because that’s what makes us feel like rational, thinking humans—having an answer to a tough question. But if we approach people with the idea that it’s normal to have complicated feelings, even if they have a Trump sign on their front yard, even if their public face expresses one thing—if we approach them with the assumption of There’s something more going on underneath, oftentimes we find out that there is.”

Who wants a pizzaburger?

A second key insight is that Democrats, as a party, misinterpret the political divide, says Anat Shenker-Osorio. They take the left for granted and try to water down ideas to reach the middle, Giridharadas explains, often “leaving the base disillusioned and the moderates merely meh.” He reveals the flaw in this reasoning with a pithy metaphor.

The error of this way, by Shenker-Osorio’s lights, is a misconception of what a “moderate” actually is. People associate “moderate” with the middle of the road, the center, but Shenker-Osorio thinks that’s a mistake. When it comes to big issues and policies, moderates are confused, torn, not sure which pole is their pole. Which is different from saying they prefer the mean between the two poles. One way to think of this is, if I offer you a choice between a pizza and a burger, and you can’t pick—you’re an undecided voter!—it doesn’t follow that you want a pizzaburger. Maybe you want a pizzaburger, the mathematical midpoint between a pizza and a burger. More likely, you will ultimately resolve the dilemma and go with a pizza or a burger. Your “moderate” stance was a temporary state—a situation, not an identity.

Prodded to question within themselves, many Americans are ‘Good Point’ People. On the one hand this. On the other hand that. The challenge for the left is helping those 60-40 neighbors become more comfortable with coming down on the progressive side.

A better term for moderates, then, might be “persuadables.” Moderate implies a taste for the tempered version of a thing. Persuadable implies malleability.

Shenker-Osorio believes persuadables “are hungry for clues from the world about how to think,” Giridharadas writes. What they need is a nudge, not a shunning.

What the IRA, Fox News, and the fringe left preach, explicitly or not, is that “those people” are unreachable when what many are is persuadable. Hillary Clinton lost in 2016, in part, because her campaign abandoned persuasion efforts, convinced that Democratic base turnout was enough to win the White House. See where that got us.

Persuasion is doable. Watch filmmaker Annabel Park move someone’s needle in real time in rural Bakersville, NC (timestamp 4:20).

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Christian vs Herschel

This whole Herschel Walker mess is something else. I’m sure you’ve heard the whole thing by now. But do you know about his son Christian who is all over social media calling out his father for his dishonesty. He’s something else too:

Why would anyone question his authenticity?

There are a couple of reasons, but when it comes to this particular story, some critics have pointed out that, in December, he introduced his father at an early campaign event, posting a video of the two sharing a hug.

https://twitter.com/ChristianWalk1r/status/1466568003043016705?s=20&t=8LjfaAxUMXVZ6_0sHlQqNA

Until recently, he also sold T-shirts that expressed support for his father’s campaign, though the merch reportedly did not actually financially benefit his father’s campaign.

Hm! Can we go back for a minute? Isn’t there a whole thing with Herschel Walker and secret children?

Yes. The candidate has publicly acknowledged Christian as his son throughout his campaign, but it came out in the months leading up to the election that he had three more children that he had not been publicly discussing. This is especially notable because the elder Walker has made a point of railing against the problem of “fatherless” homes—coincidentally also an issue that Christian Walker has weighed in on in his TikToks, and now Christian is saying that he speaks from personal experience.

How long has Christian been an influencer, and what are his videos like?

Walker has been prominent on social media, particularly TikTok, since 2020 or so, when he was a student at the University of California, Los Angeles, focusing on a familiar range of right-friendly topics, from “cancel culture” to election fraud. He gained a following as an up-and-coming conservative pundit mostly independently of his father, though Herschel Walker being a former Heisman Trophy winner who is also well-connected in the MAGA-verse must have played some role. In his videos, which frequently take place in his car in the Starbucks parking lot, Walker often seems like he must be doing satire, such is the extent of the drama he brings to his rants.

What do you mean his videos play like satire?

For a good example, see a recent one that started, “There’s a big elephant in the room and I’m just gonna to say it: I’m pissed about who they chose for Little Mermaid.”

Walker has also had a podcast, called Uncancellable, since last year. Some episode titles include: “COMMUNISM IS GHETTO,” “ITS ILLEGAL TO POOP ON THE STREET,” and “IF YOU OPPOSE ELON MUSK, YOU’RE A RACIST.”

So he’s a troll?

You might say so. On Twitter, Washington Post reporter Taylor Lorenz summarized Walker as “basically a Gen Z Milo [Yiannopoulos],” referring to the alt-right provocateur who it might actually be generous to call a troll. Last year, New York magazine described Walker and his place among conservatives thusly: “Walker cuts a rare figure: a gay Black man in Cartier and Gucci who also happens to be a two-time world-champion competitive cheerleader with a six-pack and perfectly plucked eyebrows.”

Hasn’t he said he isn’t gay, though?

Yup, he has bristled at being called the “G-word,” and this is another place where it can be hard to gauge his level of sincerity. While he is explicitly interested in men and frequently posts TikToks expounding on this interest, he also frequently says things like, “Do not put the G-word on me. I do not want to be lumped in with rainbow flags. … Just because I’m attracted to men doesn’t make me a G-word-er.” He has elsewhere claimed to be interested in men but not dating them. Walker seems to know this is a ridiculous stance to hold and has even parodied it by using audio of him talking about the “G-word” to accompany video footage of him being very excited about the “muscle men” at the Super Bowl.

Is there a quick rundown of some of his greatest hits and antics over the years?

Glad you asked. Walker got into an entertaining fight with pop star Kehlani at his favorite place, Starbucks, over the summer. She apparently warned the employees that he was being an asshole and losing his shit over the store having rainbow flags, which he then confronted her about, claiming that she in fact was the asshole. She recognized that he was probably trying to get a reaction out of her to go viral, and it seemed to have worked. More recently, Walker used his experience of being raised in a “broken home” to excoriate a woman who claimed to be having an affair with Maroon 5’s Adam Levine, calling her a homewrecker. One of the first videos of his to receive widespread attention was from summer 2020, when he criticized Joe Biden’s statement that Black people who vote for Trump “ain’t Black.” That video is actually a good example of Walker’s tendency to occasionally make something resembling a good point, whether it’s about Biden’s presumptions about Blackness, the modern tendency to play the victim online, or his father’s hypocrisy. (Not about Kehlani, though—he was just being an asshole there.)

So even though he turned on his father, we shouldn’t welcome Christian Walker to the Resistance?

No, probably not.

By the way, the Republicans are standing by Herschel. You knew that they would:

I honestly don’t even understand this quote. What allegations is he denying? Most of them he has admitted on tape? They are saying he is an abusive husband with secret children but he just didn’t pay for an abortion? https://t.co/a78AsC438b

— Tim Miller (@Timodc) October 4, 2022

I knew Trump made fun of Jeff Sessions’ accent but I didn’t know he said this:

In “Confidence Man,” [Maggie] Haberman writes that Trump would “rant” that he deserves credit for nominating “the first mentally retarded attorney general in history” when the topic of Sessions was brought up by other White House officials — who often did so to redirect Trump’s ire away from themselves.

It’s the latest detail to surface about one of the longest-running feuds of Trump’s presidency. 

He is a monster.

This feud warned every Republican that they were essentially Trump’s vassals — and they eagerly threw themselves into the role. Sessions bucked him on the Russia investigation but backed him on all the draconian immigration policies and then groveled and begged for attention when he ran for the senate again and Trump kicked him in the face. It was ugly. But the Republicans all know what the rules of the game are and they keep coming back for more.

If you’re wondering where to put your money in these last weeks before the election this might help give you focus. From 538:

High-profile congressional races tend to grab national attention in election years. But we’re also paying close attention to races for governor and state house seats that could shape the future of abortion access in several states.

Here’s what you should know.

North Carolina Republicans are looking to flip some key seats in the state legislature and pass an abortion ban that would withstand a veto from the Democratic governor. According to Planned Parenthood, around a third of women getting abortions in North Carolina in July came from out of state. So an abortion ban in the state would affect people seeking abortions in states beyond North Carolina.

Right now, abortion is legal in Pennsylvania until 24 weeks of pregnancy (with some restrictions). Republicans control the state legislature, but the current governor is a Democrat and can veto bills. Doug Mastriano, the GOP nominee for PA governor, has said that abortion should not be legal in any situation. Since the legislature will likely push for even more restrictive abortion laws now, abortion access in the state hinges on the governor’s race.

In Wisconsin, a pre-Civil War ban now makes it illegal to have an abortion in almost every circumstance. The fate of the ban could depend on who is elected governor and attorney general in November. The @nytimes reported that in Wisconsin, the “priorities for abortion rights advocates include preventing Republicans from securing a veto-proof majority in the state legislature and re-electing the (Democratic) governor and attorney general.”

Learn about the states where the midterms could most affect abortion access, including Arizona, Georgia and more

You can click here to see which states have ballot issues pertaining to abortion. We don’t need to worry about California and Vermont but the rest are in grave danger.

Justice Jackson makes her mark right out of the box

Ketanji Brown Jackson is making her mark already in just two days of questioning. Here’s Sherrilyn Ifill’s live tweet on today’s Alabama’s gerrymandering case that hopes to finally end the Voting Rights Act. This is very “legalesque” but you’ll get the idea. Jackson is using their originalism to prove they are full of shit:

So important that Justices Kagan & Jackson are pulling the mask off of Alabama’s case. AL is in essence, relitigating Mobile v. Bolden, which resulted in Congress amending the Voting Rights Act in 1982 to ensure that a “results” rather “intent” is required for section 2 cases.

And even better that Justice Kagan re-upped the language in Brnovich in which Justice Alito in his haste to remake the “totality of circumstances” test of Section 2, conceded that “no one disputes” that intent is NOT required to prevail in Section 2 cases.

Justice Jackson has done her homework. She is all over Section 2, and relentless in questioning counsel for the state of Alabama. She knows where a proper Section 2 inquiry starts. And it’s not at “race neutrality.”

Justice Alito throwing counsel for Alabama a lifeline.

Kagan and Jackson have been so hot, I’d forgotten that Justice Sotomayor is just entering the fray. This is a hot bench. And given the blows landed, I expect that Alito and the other 5 conservatives will be very aggressive with the counsel for Black voters.

Wow. Justice Kagan gets to it. Asks if it would be possible for Alabama to create maps with no majority Black districts. Counsel for AL essentially says, “it depends on what Section 2 is trying to get at.” Just unreal. The purpose of the Voting Rights Act is not mysterious.

Kagan now holding a class on the Voting Rights Act: “one of the great achievements of American democracy.”

Counsel for Alabama is now distorting what “third generation” voting rights claims means. This is not that. This is a classic second generation vote dilution redistricting claim. Good grief.

Justice Kavanaugh hoping this case can be resolved on “compactness” grounds. Looking for a way to get the job done without getting his hands dirty with the straight-on grotesque business of gutting Gingles.

Justice Barrett giving counsel for Alabama another chance by laying out the argument that can win with this conservative majority. Step-by-step. “Isn’t that your argument?” Well, yes.

Whew. Justice Jackson went into the reports of the Commission on Reconstruction to make clear what the founders of the 14th amendment were trying to accomplish. Then offered a short survey course to AL counsel and the Court.

Giving them a little “history and traditions.”

Not sure I can live tweet Deuel Ross’s argument cause I just think he’s amazing and I need to just listen.

Ross not falling into the “max-Black” bait being dangled by Justice Alito. So fully conversant on all of the cases and all of the facts that he can’t be caught. This line of questioning reveals that it’s hard to find a legitimate way out on the facts of this case.

Ross doing law and reminding the Court that this case is up in the SCOTUS on a preliminary injunction (suggesting the inappropriateness of using this case to make sweeping changes to precedent).

No questions for Ross from Justices Thomas or Gorsuch on this first round.

In responses to Justice Kavanaugh is leaning in. Trust me: there is no lawyer more knowledgeable about Voting Rights Act case law than @RossDeuel. Period. And he’s serving it up. If you want to do violence to the VRA with Ross at the podium, you’re going to have go through it.

I am alternately preening and fanning myself like a proud mother. Whew!

Up now Abha Khanna. Brilliant opening.

Excellent answers by Abha Khanna. And it shows how important it is to have a strong district court opinion where the Gingles analysis is done carefully and exhaustively.

Justice Alito is belaboring these hypotheticals involving the use of computer simulations, and “unbiased mapmakers.” It’s a reminder that at his confirmation hearing he talked abt his father’s work as a legislative mapmaker in New Jersey.

Abha Khanna now brilliantly breaking down how even computer simulations are not “neutral” because they are programmed with assumptions, in response to a question by Justice Barrett. It’s clear that several justices are really hanging their hats on computer simulated maps.

Justice Jackson making sure to ask Abha Khanna to address the assumption underlying Justice Barrett’s question – that either Section 2 or the 14th Amendment requires race neutrality. And making it clear that neither do.

Abha Khanna says there is “no basis” for reading a computer simulation standard into the first Gingles factor.

SG Elizabeth Prelogar now arguing.

Justice Alito gets to it: where can the state win once plaintiffs have satisfied the first Gingles factor? Won’t plaintiffs “run the tables”? Wow. Maybe, he says, the majority (whites) votes as a block because of “ideology. They have different ideas abt what the govt should do.”

Important to note that @RossDeuel made clear that the record evidence shows that voting was racially polarized in elections involving both Democrats and Republicans.

Counsel for Alabama on rebuttal now having seen where this is going, “we’re not asking for Gingles to be overturned or changed in any fundamental way. We’re not saying that computer simulations are required.”

Ok, counsel for Alabama saying that the multi-factor Gingles test only provides evidence of “broad, societal discrimination” is laughable. It is explicitly a “searching, practical evaluation of the local political reality.”

And that, is a wrap. The case is submitted.

Originally tweeted by Sherrilyn Ifill (@SIfill_) on October 4, 2022.

Josh Marshall talks a bit about today’s arguments:

It is such a breath of fresh air, seeing Justice Ketanji Brown Jackson say from the bench what the 14th Amendment actually says. “It’s not a race-blind remedy,” she says, in something of an understatement. But we can actually go well beyond this since so much of modern jurisprudence, mostly but not only from the right, is based not only on ignoring the context and plain text of the 14th Amendment but pretending that the real Constitution — albeit with some additions and fresh paint jobs — is the one finalized in the first Congress as the first ten amendments. The Civil War amendments are not only not race-blind. They reflect a larger realization and aim: that the whole state thing just hadn’t worked out.

The 14th Amendment creates something called citizenship of the United States with various rights or “privileges and immunities” that states cannot violate. It reaffirms that states are subordinate jurisdictions and implicitly that their function had been far more to create mischief than progress.

This is all gauzed over today with the political and judicial edifice we call “federalism,” largely though not entirely the work of the late-20th century conservative legal movement. It proposes a set of principles and historical claims under which the federal and state governments are designed to exist in a kind of balancing equipoise. But mostly this isn’t true. “Federalism” is to a great degree the product of a long and mostly reactionary clawing back of the power by the state governments. Not entirely. But mostly.

Madison and Hamilton had wanted to neuter the states back in the 1780s. But the need to get a big majority of the states to agree to adopt the constitution made that impossible. They had to settle for the constitution as agreed to.

It would be possible to argue that 150+ years since the passage of the Civil War amendments represents a cooling of the ambitions of the statecraft of the 14th Amendment and an effort to work out some equitable balance between localism and national power. There’s some truth to that. But that’s not an argument available to anyone who argues for originalism. With that you have to go back to what the Reconstruction Congress thought they were doing. And what they were trying to do was quite radical in the context of the 80 preceding years of American national history — indeed, quite radical in some ways in relation to today.

He’s right about this. It’s super interesting to see originalism debated in this way. My previous post about the North Carolina Independent State Legislature case in which Michael Luttig uses the right’s originalism to argue against their new novel theory designed to allow Republicans to steal elections is also super interesting. This is the new intellectual battleground with this right wing majority. Whether any of them care abojut intellectual consistency or are all just partisan hacks remains to be seen.

And it’s very nice to see the three liberals on the court join the fray with all intellectual guns blazing. They’re all brilliant.

Hardcore consesrvative, former appeals court judge J. Michael Luttig makes an originalist states’ rights appeal for the judiciary against the Independent Legislature Theory that might just peel off two of the wingnuts( if any of them still have any integrity at all.)

The Supreme Court will decide before next summer the most important case for American democracy in the almost two and a half centuries since America’s founding.

In Moore v. Harper, the Court will finally resolve whether there is a doctrine of constitutional interpretation known as the “independent state legislature.” If the Court concludes that there is such a doctrine, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.

Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.

The independent-state-legislature theory gained traction as the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election. In the Supreme Court, allies of the former president argued that the theory, as applied to the electors clause, enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states. The Supreme Court declined to decide the question in December 2020. The former president and his allies continued thereafter to urge the state legislatures, and even self-appointed Trump supporters, to transmit to Congress alternative, uncertified electoral slates to be counted by Congress on January 6.

That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions. Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review.

The argument is long and dense but readable. I urge you to read it if you can. Luttig goes through chapter and verse about the state judiciary’s role in the constitution and takes on the very thin arguments that say the state legislatures are given this massive power through this very convenient interpretation of the elections clause that has only recently been discovered. The argument is obviously aimed at the conservatives on the court. I only hope that two of them can read it. It ends like this:

The Supreme Court does not agree on the nature, scope, and standards governing its own review of Congress’s enactments under the U.S. Constitution. Every day the Court sits, its members employ different and shifting outcome-determinative interpretive methodologies and consult different sources when interpreting and applying the U.S. Constitution. There is no reason to believe that there would or should be any agreement among the justices as to how to fashion federal constitutional constraints on the state supreme courts’ review of their legislatures’ laws under their own respective state constitution.

But there is every reason that they should never try.

All of which goes to confirm that the Constitution neither contemplates nor permits federal constitutional commandeering of the states’ constitutions and their judicial processes. Rather, it contemplates and provides only for federal judicial review of the state supreme courts’ state constitutional decisions by the U.S. Supreme Court for consistency with the United States Constitution.

You’d think that judges would be sympathetic to this argument. Basically this theory is saying that state supreme courts are nothing.

I just don’t know if any of this majority is persuadable. From what we’re seeing in the arguments today in the Alabama gerrymandering case, it certainly appears that Barrett is kind of vacant. Her questioning on this is as fatuous it was in the abortion case. But maybe Roberts and Gorsuch? (Kavanaugh maybe, but he’s made it clear that he’s open to the ISL theory.) I just don’t know. Luttig sees this as a major threat to democracy. It is.

Sorry, but all fair with these people

In a scandal that will surely make Mitt Romney—who famously strapped his family dog atop the roof of his car for a road trip—look like a PETA activist, a review of 75 studies published by Mehmet Oz between 1989 and 2010 reveals the Republican Senate candidate’s research killed over 300 dogs and inflicted significant suffering on them and the other animals used in experiments.

Oz, the New Jersey resident who’s currently running for U.S. Senate from Pennsylvania, was a “principal investigator” at the Columbia University Institute of Comparative Medicine labs for years and assumed “full scientific, administrative, and fiscal responsibility for the conduct” of his studies. Over the course of 75 studies published in academic journals reviewed by Jezebel, Oz’s team conducted experiments on at least 1,027 live animal subjects that included dogs, pigs, calves, rabbits, and small rodents. Thirty-four of these experiments resulted in the deaths of at least 329 dogs, while two of his experiments killed 31 pigs, and 38 experiments killed 661 rabbits and rodents.

In the early 2000s, testimony from a whistleblower and veterinarian named Catherine Dell’Orto about Oz’s research detailed extensive suffering inflicted on his team’s canine test subjects, including multiple violations of the Animal Welfare Act, which sets minimum standards of care for dogs, cats, primates, rabbits, and other animals in the possession of animal dealers and laboratories. The law specifically requires researchers and breeders to use pain-relieving drugs or euthanasia on the animals, and not use paralytics without anesthesia, or experiment multiple times on the same animal.

Dell’Orto testified that a dog experimented on by Oz’s team experienced lethargy, vomiting, paralysis, and kidney failure, but wasn’t euthanized for a full two days. She alleged other truly horrifying examples of gratuitously cruel treatment of dogs, including at least one dog who was kept alive for a month for continued experimentation despite her unstable, painful condition, despite how data from her continued experimentation was deemed unusable. According to Dell’Orto, one Oz-led study resulted in a litter of puppies being killed by intracardiac injection with syringes of expired drugs inserted in their hearts without any sedation. Upon being killed, the puppies were allegedly left in a garbage bag with living puppies who were their littermates. Dell’Orto’s allegations, made in 2003 and 2004, are detailed in letters from PETA to the university and USDA. In an interview with Billy Penn last month, she acknowledged PETA “is not a reliable source of information,” but said the organization’s letters honestly reflected what she told the organization and provided documentation for.

In May 2004, Columbia University was ordered by the USDA to pay a $2,000 penalty for violations of the Animal Welfare Act. The fine paid by Columbia was the result of a settlement between the university and the USDA, based on the findings of Columbia’s internal investigation of Oz’s research. The USDA accepted these findings, but according to Dell’Orto, the review was faulty, and “had investigators on the committee that were also complicit in this type of poorly designed, cruel animal experimentation.” Dell’Orto also noted that while Oz wasn’t the one who euthanized the dogs and puppies himself, “When your name is on the experiment, and the way the experiment is designed inflicts such cruelty to these animals, by design, there’s a problem.”

Months after paying the $2,000 fine, in December 2004, Columbia defended Oz amid the animal abuse allegations, calling him “a highly respected researcher and clinician” who adhered “to the highest standards of animal care,” but neglected to deny any of the specific allegations Dell’Orto had made against Oz. On Monday, Jezebel reached out to Columbia’s office of communications and public affairs as well as Oz’s Senate campaign. Columbia declined to comment, and Oz’s campaign has yet to respond. Notably, in April this year, the Daily Beast reported that the university had seemingly cut all ties with Oz, stripping his personal pages from the medical center’s website. Oz formerly held senior positions including vice chair of surgery and director of integrate

I might be tempted to say that Oz was using what was considered standard medical practice at the time except for the fact that he became a con man and a snake oil salesman. But there’s no excuse. He was called out for this over 20 years ago — he violated the animal welfare act.

I’m sure Trump voters consider this a good reason to vote for him — they love cruelty. But normal people should be turned off. This man has no morals and never did:

Update: lol

Before there was Dr. Oz, there was Dr. Nick.
 
They say the Simpsons always predict the future – and once again, they nailed it. pic.twitter.com/hx5ivJtpdg

— John Fetterman (@JohnFetterman) October 3, 2022

He’s always been an ass. But this is a bit much:

Not that we need reminding, but Roger Waters yet again reveals he’s totally infested with tankie brainworms.

NEW: In an explosive interview with @RollingStone, @rogerwaters says he's "on a kill list that is supported by the Ukrainian government." https://t.co/66jUQAygI1

— Noah Shachtman (@NoahShachtman) October 4, 2022

His comments about the US reveal his totally reductive world view, the US is the greatest evil in the world therefore anyone he thinks is in opposition to the US must be on the right side. It’s incredibly stupid, but not untypical among a certain type of person.

My belief is the root of this is what I like to call “traumatic moral injury”, where an individual suffers such a severe moral injury from an event or series of events (often legitimately) they start seeing the entire world through the lens of that injury.

So to accept that the source of authority they perceive to be responsible for that injury might actually not be bad all the time is impossible, so they have to justify and deny the activities of anyone they see as in opposition to those who have done them harm.

This effect is amplified by the internet’s ability to link us up with likeminded people who will reinforce their trauma with their own views and opinions.

And I think what’s fundamentally misunderstood about disinformation is its these communities that create disinformation in what they believe is the search for the truth, rather than it being the action of outside actors on those communities (like Russia).

State actors might take advantage of those communities, but they create themselves in a misguided attempt at truth seeking that’s influenced by their own biases.

And this isn’t unique to Ukraine or Syria, or even conflict, but really any topic where a community can form around a lack of trust in traditional sources of authority, such as the media, government, medical professionals, etc.

You don’t need a state to pay people like Roger Waters off to say this stuff, they genuinely believe it and think they’re fighting against disinformation spread by the media and governments, and have plenty of people who think they’re doing the same thing to support them.

I think the biggest failure in countering disinformation is the idea that its the result of outside actors influencing communities, when its really about the communities that form organically, and how we respond to that.

It’s a lot simpler to blame Russia and factcheck then address the fundamental social issues that lead to this, especially when a lot of it is caused by real betrayals of the public trust by the media and governments.

It’s no coincidence that the invasion of Iraq in 2003 is frequently referenced by these types of people, betraying the trust of the public is a great way to create more people like this.

And to be very clear, because no doubt those same people will misunderstand the point, feeling of betrayal over the invasion of Iraq are legitimate, it’s what we do with those feelings that’s the difference.

I also think that what we’re seeing with the right in the US is what happens when mainstream political and media authorities welcome that kind of thinking with open arms in attempt to use it for their own ends.

I do wonder how the current war will impact younger generations that didn’t experience the post 9/11 period, especially as the older Vietnam era generation dies off. Will Russia’s invasion be as much of a defining moment for them as Vietnam and 9/11 was for previous generations?

As for actual solutions to this issue, I think it’s important to empower young people to have a positive impact on situations they’re engaged with, hence why we’ll be working with students in schools to teach them how to do open source investigations.

As well as connecting them to people and organisations who can help them have impact with the work they do. If not, we shouldn’t be surprised if we see the same patterns of behaviour repeat time and time again.

But more on that later.

I should probably write this all in an article at some point, right?

That’s not to say some people aren’t just really stupid:

The @CIA and the Ukraine Govt run a joint botnet called #NAFO. They engage in social media manipulation to make it seem like the masses support Ukraine. They also attack @twitter users who criticize the US proxy war. Most NAFO users are bots or aliases mixed with useful idiots. https://t.co/qdfdLbCc0o

— Kim Dotcom (@KimDotcom) October 3, 2022

Originally tweeted by Eliot Higgins (@EliotHiggins) on October 4, 2022.

I wish I could say he was the only one …

But what to the rest of us want?

The Access Hollywood tape did not sink Trump in 2016. So after Roger Sullenberger’s Daily Beast column (below) on Herschel Walker hit Monday night, it’s hard to think it a knock-out blow for Walker.

https://twitter.com/whet/status/1577077282463621120?s=20&t=NTZ6lxSn0GnxktQUV3T7Ag

EXCLUSIVE: Herschel Walker, an anti-abortion absolutist, paid for an abortion in 2009. We have the receipts. Literally. Me @thedailybeast https://t.co/IzOEEg4quN

— Roger Sollenberger (@SollenbergerRC) October 3, 2022

Will Bunch responds, “I hate to be so cynical but after Trump I wonder if this changes one damn vote. Georgia Republicans will vote for an apostate hypocrite who’ll install their judges, and also to spite the Democrat who inherited MLK’s altar.”

It was a double hit for Walker on Monday. But a string of tweets from one of Walker’s sons won’t hurt him either.

I can’t help but feel really sorry for this kid 💔 https://t.co/rw33qAwbQ1

— Lauren Windsor (@lawindsor) October 4, 2022

The cult thinks Donald Trump’s bad insult comic shtick in orange-face is macho. Walker could be filmed beating hookers in a brothel and it would not dampen the MAGA hunger for sending him to the Senate for vengeance.

But bad press for Republicans is not good press for Democrats.

This ad from Swalwell and Omar is spot on and the exact messaging all Dems should be doing. Maybe Dems should put these two in charge of the DCCC! https://t.co/CLRXvIKyFs

— Mehdi Hasan (@mehdirhasan) October 3, 2022

Medhi Hasan thinks this attack ad against Kevin McCarthy is the bomb. I expect it will bomb.

Dobbs is proving to energize Democrats and perhaps depress turnout among conservative rural voters (Politico):

Celinda Lake, a Democratic pollster for Biden’s 2020 campaign, said rural voters may have felt complacent after the conservative movement’s decades-long effort to strike down Roe v. Wade was successful.

“A lot of rural voters, they’re more conservative religiously and they were very mobilized by abortion and now they think they’ve won,” she said. “Whenever you see a kind of falling-off of pro-life voters because they’re less engaged, you’re going to see that particularly in rural areas.”

Steve Bullock, the former Democratic governor of Montana and co-chair of the liberal super PAC American Bridge 21st Century, offered an alternative theory about the recent special election results: The end of abortion rights is actually turning off some rural voters, he said.

“Unfortunately, the Republicans have been doing a lot better in rural areas over these last few cycles. And they finally kind of caught the car bumper. Urban and rural folks didn’t necessarily think that Roe would be overturned or they’d work on a nationwide abortion ban,” said Bullock. “I think it’s suppressing some of the Republican interest in rural areas.”

He added that “in rural areas where access to affordable and quality health care is already challenged, when you turn around and say that you’ll have no reproductive health care in many states, I think that’s in part why we’re seeing what we’re seeing.”

Democrats need to offer more than criticism of Republicans. GOP candidates are generating bad press for themselves. Democrats need to hammer harder on improving the economy, says pollster Stan Greenberg:

And fortunately, Democratic campaigns in practice are delivering a message consistent with that finding. The NBC poll tests the message that Democrats are actually saying, and it starts with their advocacy for working people on the cost of living: “we need to keep delivering for working Americans by lowering costs, including health care and prescription drugs, and ensuring the corporations pay their fair share of taxes.” That message gives the Democrats a 7-point advantage compared to the Republican message.

Our poll shows that we make our biggest gains when Democrats take on the corporate monopolies that are driving up prices, despite making super profits. It contests the cost of living by hitting Republicans hard on doing big corporations’ bidding on price-gouging and taxes.

It is important that Democrats get it right, as this poll shows the power of the Republicans closing with the ugliest possible message on crime and the border. All the respondents in this survey hear Republicans say, “Americans have never been more at risk for those who made America great. Crime in our country is escalating. People are pouring through our borders unchecked.”

It’s a tough tightrope to walk. Democrats need to watch out for being too rosy about the economy in a time when voters aren’t feeling it. If I knew what the best message was, I’d offer it.

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