Relevant and even prescient commentary on news, politics and the economy.

At least as of yesterday morning, the Democratic establishment still didn’t get it. Then again, as of late yesterday, neither did the Republican establishment. And neither did Donald Trump. [UPDATED]

CHUCK SCHUMER’S TOUGH BALANCING ACT: CNN reports on an interesting dynamic to keep an eye on:

“For Schumer, the challenges will be formidable. He’ll have to listen to the vocal and outspoken progressive wing of his caucus, led by Massachusetts Sen. Elizabeth Warren and Vermont Sen. Bernie Sanders, who have legions of supporters. But he also has five red-state Democrats in states Trump won convincingly — Indiana, Missouri, Montana, North Dakota and West Virginia — up for re-election in 2018. And if Schumer takes his caucus too far to the left, he’s bound to could put his moderates in a difficult political spot.”

Worth watching: Whether those red state Democrats claim the party has moved too far to “the left” when it resists Trump’s agenda.

The first big political war of Trump’s presidency will be explosive, Greg Sargent, Washington Post, yesterday at 9:55 a.m.

Late yesterday I received a listserve email from Bernie Sanders’ new organization, Our Revolution, asking what we most wanted the organization to do immediately.  I haven’t responded yet, but my message will be a plea that it begin an intensive effort to inform the public in the Rust Belt states, and the Midwest generally, of what exactly the Conservative Legal Movement was, and is, up to regarding handing control of the federal courts, and federal law, to billionaires and mega-corporate interests.

That’s what Citizens United was really about.  But it’s also what a slew of other 5-4 Supreme Court rulings have been about since the Conservative Legal Movement gained that majority on the Court.  And during the three decades when it thoroughly controlled the federal appellate and trial-level courts.

The Supreme Court effectively rewrote the Federal Arbitration Act to forced-arbitration clauses in almost every aspect of employment, consumer (including banking and credit card law), and securities law.  It also rewrote that Act so that it uses those forced arbitration clauses to effectively eliminate class actions.

It literally rewrote the Federal Rule of Civil Procedure, Rule 8(a), that sets the parameters for what lawsuit complaints, the legal pleading must state

It has been extremely hostile to labor unions; Samuel Alito openly invites the filing of litigation whose very goal is to undermine or outright eliminate them.

Every single one of these attacks, and many others, were born and grew up through a precision pipeline system of think tanks and so-called legal foundations, small, non-profit (thus “Foundation” as part of their title) law firms, all funded by extreme economic self-styled libertarian (the Madison Avenue-inspired ideological label they use) billionaires, including the Kochs, financial-industry billionaire families that include the Mercers and the Ricketts and who were top funders of Trump’s general-election campaign, and oil-and-gas billionaires, including top funders of Trump’s general-election and primary campaigns.

And that includes, extremely significantly, the Federalist Society, cofounded in about 1980 by Antonin Scalia, and whose most aggressive and unabashed members include Alito, Clarence Thomas and a slew of high-profile members of the federal appellate bench.  John Roberts also apparently was a member, although very quietly, throughout his career as a lawyer.

What I want most, and most immediately, for Our Revolution to do is to begin a major public-awareness push to tell all those Midwesterners and other Rust Belters—including those in rural areas and small towns—what exactly Trump was saying when he promised during the campaign to appoint justices in the mold of Antonin Scalia.  And who, exactly—who, exactly—is feeding him the names on list of possible Supreme Court nominees.  And who exactly will be feeding him recommendations for lower federal court appointments.

Suffice it to say, it ain’t the Rust Belters and Midwesterners who brung him, late in the game, to this dance because they support the Paul Ryan fiscal plan whose goal is to all-but-eliminate both taxes on the wealthy and the social safety net programs, such as food stamps and Medicaid, that many of them rely upon for, literally, survival.

Nor was it because they salivate at the thought of industry lobbyists writing legislation to be fed quickly through Congress and onto President Trump’s desk for him to sign.

Nor, I’ll venture, was it because they want the Supreme Court and the lower federal courts to be proxy arms of economic-winger billionaires and industries ranging from Wall Street to Walmart to communications to chemical and pharmaceutical, to Big Ag, to fossil fuel and lumber industries.   As they were for roughly three decades.

Mitt Romney received the votes of the deplorables, without whose support Trump would not have won.  But Romney isn’t president.  Barack Obama is.  Trump’s bizarre efforts beginning in 2011 to change that fact, notwithstanding.

Yet throughout the day yesterday, the news was filled with Ryan’s and McConnell’s exaltation at their expectation that President Trump will effectively be President Ryan.  Puppet Trump, in other words.  They’ll serve him avalanches of legislation to sign.  And they will control the key appointments to every single federal agency and commission that they want to control.  Which is almost all of them.

Including the SEC and the NLRB, the FDA, the FTC and the FCC.  As well as the Interior Dept., which they presume now will simply hand over to the lumber and fossil fuel industries massive amounts of federal lands.

Which brings me to this: Every bit as important as informing the public of this, for Our Revolution, for the Progressive Change Campaign Committee, for Democracy for America, and the reconstructed, soon-to-be-Sanders-supported DNC—and for Bernie Sanders and Elizabeth Warren themselves—to do, right now, is to begin a massive public information campaign about this that targets House members and Senate Republicans up for reelection in 2018.  In their states.  In their districts.  Including seemingly safe ones in the Rust Belt and the entire Midwest.

We have their number.  As we do Donald Trump’s.  And we have the grass-roots movement and the social-media networks to determine their latitude for installing these virulently anti-working class, pro-billionaire, pro-mega-corporate, pro-mega-powerful-industry cooptation of each of the three branches of the federal government.  Including that professed savior of the working class, Donald Trump.

I still remember looking that the map of Michigan’s counties the day after the primary last March, showing how each county voted in each of the two primaries—and being utterly stunned looking at the one for the Democratic primary.  If I recall correctly, every single county except Wayne (home to Detroit) and Genesee (Flint and surrounding area)—both counties largely African-American—voted for Sanders.  The Republican stronghold counties in the western part of the state all the way along or near Lake Michigan, went heavily for Bernie.  And, had African-Americans in Wayne and Genesee voted for Clinton roughly 3-1, as projected, instead of roughly 2-1, as they did, Bernie still would not have beaten her.

Apparently Chuck Schumer is unaware of this.  Bernie should tell him.  The old sheriff is gone, run out of town, or more accurately, the country, on Tuesday.  There’s a new sheriff in the country.  Named economic populism.

It could have been our sheriff; thanks to folks like you, it wasn’t.  But we can make due with the one who is not ours.

One side of this divide—the wealthy Republican and corporate elite, proxied by Ryan, McConnell, and the Federalist Society, or the folks responsible in such large part for bringing Trump to the dance—will control the federal government.  Puppet Trump. Puppeteers Ryan, McConnell, Wall Street and other industry lobbyists, and the Federalist Society.  On the other side, Rust Belt and Midwestern blue-collar voters.  Including labor union members.

And if it’s the former, it will last only until January 2019.  Believe me.

Better yet, believe Bernie Sanders.



UPDATE:  Holyyyy macaroni.  Chuck Schumer’s gotten the message now.  It took two and a half days.  But he’s gotten it now.

See “Schumer throws his support behind Keith Ellison for DNC chairman,” posted about an hour ago on the Washington Post’s website.


So the first big political war turned out to be a two-and-a-half-day-long skirmish.  And this is why.  The times, they are a-changin’.  Really, really quickly.  In the Democratic Party.

Updated added 11/11 at 11:19 a.m.  Just past the eleventh hour of the eleventh day of the eleventh month.  It’s Veterans’ Day, folks.  Not to equate the two events, of course.  Just to acknowledge the meaning of Veterans’ Day, which originally was called Armistice Day.

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Linda Greenhouse On the Intense Aggressiveness of Conservative Legal Movement Justices and Judges

Former longtime NYT Supreme Court correspond, current biweekly Times columnist, and habitual woman-after-my-own-heart Linda Greenhouse, has a column today titled “Let’s Legislate From the Supreme Court Bench” about how very fond movement conservatives became a while ago of legislation from the bench.

She makes the point that legislation from the bench is an absolutely essential component of the Conservative Movement.

I’ve made that point, or tried to, roughly 879 times at AB since I began posting here in 2010.  But she’s Linda Greenhouse, and I’m, well, nobody.  But at least I’m in good company in recognizing how ridiculously underappreciated—how thoroughly unknown, actually—this critical fact is.

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The Fab Four (f.k.a. the Fab Five) Supreme Court Justices’ Last Grasp and Last Gasp

WASHINGTON (AP) — The Supreme Court agreed Tuesday to hear appeals from former Attorney General John Ashcroft, former FBI Director Robert Mueller and other former federal officials seeking to shut down lawsuits filed by Muslim and Arab men who were detained in the U.S. after the Sept. 11 attacks.

The justices said they will review an appeals court ruling that gave a green a light to the lawsuit claiming that Ashcroft, Mueller and the others should be held accountable for the harsh treatment the men suffered in the months after the worst attacks in U.S. history. The former officials argue they cannot be sued or held liable.

The court also said it will hear a separate appeal about access to the courts from the family of a Mexican teenager who was killed when a U.S. Border Patrol agent fired across the border from Texas into Mexico. The case involves the rights of people who are harmed by American authorities on foreign soil to have their day in U.S. courts. …

In the detainees case, the Obama administration is defending Ashcroft, Mueller, James Ziglar, the former commissioner of the U.S. Immigration and Naturalization Service, and the warden and associate warden of the Metropolitan Detention Center in Brooklyn where more than 80 men were held, many of them charged only with minor civil immigration violations.

A divided panel of the 2nd U.S. Circuit Court of Appeals in New York said the men were detained “as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim.”

The appeals court said that “the suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.”

The new appeal, stemming from a class-action lawsuit that was originally filed in 2002, is the third time the court has intervened in lawsuits against Ashcroft and others from Muslims who were arrested in the U.S. following the 2001 attacks. The justices have twice sided with Ashcroft.

Only six justices will take part because Justice Sonia Sotomayor was a member of the New York-based federal appeals court that heard an earlier version of the case and Justice Elena Kagan worked on the issue when she served in the Justice Department. One seat on the nine-member court has been empty since Justice Antonin Scalia died in February.

Arguments probably will take place in January so it is possible that a new justice will by then be in place. President Barack Obama has nominated Judge Merrick Garland, but Senate Republicans have so far blocked action on the nomination.

Supreme Court will hear Ashcroft appeal to kill lawsuit, Associated Press, today

Well, we all can do the math and recognize that in light of Sotomayor’s and Kagan’s recusals, the outcome of this case doesn’t depend on whether the Scalia seat has been filled by the time the case is decided next spring.

We also know what the outcome will be.  Prescience, I guess.

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Dealing the Woman’s Card—Clinton’s. And Mine. And Dealing the Man’s Card—Bernie Sanders’s. And Donald Trump’s.

There are limits to the analogy between Clinton’s 2008 primary contest with Obama and Sanders’s primary contest now with her.  Clinton doesn’t get that.  But she needs to figure it out because the differences matter.

There are limits to the analogy between Clinton’s 2008 primary contest with Obama and Sanders’s primary contest now with her.  Clinton doesn’t get that.  But she needs to figure it out because the differences matter., Me, Angry Bear, yesterday

Later yesterday I posted a short follow-up, saying:

When I wrote this post today I wasn’t aware of this piece by Jonathan Cohn (a longtime favorite of mine, dating to his time at The New Republic).  It was published early this morning but I just learned of it (h/t Paul Waldman).  But it makes the same key point that I do in mine.

Which is that Sanders supporters will know that their vote for Clinton in November will mean something much more than just a vote for Clinton or a vote against Trump.  Most of us will be out en force on election day, voting not because of Clinton but because of Sanders.  And voting, really, not for Clinton but for Sanders.  As well as for progressives in the down-ballot contests.

The movement has taken hold.

Which managed to garner some attention to my first post, since I’d linked to it, and spurred the following in the comments thread to it this morning:


April 28, 2016 7:57 am

People if you take nothing else from the above article. Except that change is possible if you help Bernie and Warren when they ask for help for explicit people; reform of the democratic party is possible.

If you believe that the common belongs to the nation and those who benefit should be taxed according to assistance they have received as a member of this nation. But, dino’s like the Clintons’ or Obama are no better than having a republican, as the goal is not the common good.



April 28, 2016 9:26 am

” But, dino’s like the Clintons’ or Obama are no better than having a republician, as the goal is not the common good.”

It is hard to imagine the stupidity required to write that sentence.

Prompting this lengthy comment from me:

You know what’s sort of funny to me about this thread?  I had forgotten this until this weeks’ Woman’s Card contretemps—specifically Clinton’s “Deal me in” response to Trump—reminded me of it.  Clinton responded with something like “If equal pay, and guaranteed paid family leave, and affordable preschool, and women’s healthcare are playing the Woman’s Card, deal me in.”  Ah; then I remembered the moment when I concluded that Clinton really DOESN’T have a core, or much of one anyway: When at the first debate last fall, after Sanders mentioned his proposal to tax everyone’s income at (I think) $1.54/a week (it was well less than $2.00) to pay for guaranteed paid medical and family leave, Clinton used, for the first of many times during the fall and very early this year, her rebuttal line that she wants to raise middle-class incomes, not lower them.

Until that moment I had thought that the one thing that really WAS her core politically was the panoply of traditional women’s issues, including guaranteed paid family leave.  Guess I was wrong about that, I said to myself.  So, apparently, did a good swath of other progressives.

She was raked over the coals for that—a stunning, dumbfounding comment from a Democratic candidate for president—yet she kept repeating it until the polls showed Sanders effectively even with her in Iowa and leading her in New Hampshire.  I remember the dismay and anger from commentators and others.  Several pointed out that that comment was straight from the Republican Party playbook.  And that apparently Clinton thinks FDR and LBJ wanted to lower incomes because, well … Social Security and Medicare.

Clinton thinks her problem in not being a natural politician is simply that she’s cold and stiff in her physical presence and speaking style.  She doesn’t recognize—and either do her campaign folks her feed her these sound bite lines she adopts—that her biggest problem, by far, is fondness for sound bites that are actually appalling.  Her husband raised taxes.  Guess he wanted to lower incomes rather than raise them.

I’ve debated here in AB threads several times with people who disagree with me that Clinton simply is not very bright.  That she’s so fond of this kind of thing—the asinine, self-defeating sound bites and sleights of hand that have been a hallmark of her campaign—is what I’m talking about.

NYT columnist Charles Blow has a good column today in which he calls Clinton a waffling contrivance.   Perfect!

But all that said, the bottom line is that EMichael is, extremely obviously, exactly right.  Why would anyone who is appalled by Citizens United and the Voting Rights Act opinion—two Supreme Court opinions that, unlike most of their other truly awful ones, most ARE aware of—think the outcome of the election between Trump and Clinton doesn’t matter?

I know that most people have no clue that most of the really important stuff that happens in federal courts happens at the district court (trial court) and circuit court (appellate court) levels. Much less do they know the genuinely appalling effect of the complete takeover of the entire civil and criminal justice systems, state and federal, by the Conservative Legal Movement.  Even less do they know the extraordinary breadth and reach of what this has affected.

Nor do they know that, finally—finally—in the last three years, thanks mostly to the decision by Harry Reid to kill the filibuster for circuit and district court nominees, the makeup of those courts has changed significantly and VERY meaningfully.

So, yeah, I repeat what EMichael said:

“”But, dino’s like the Clintons’ or Obama are no better than having a republician, as the goal is not the common good.”

“It is hard to imagine the stupidity required to write that sentence.”



I’m a Card Carrying Woman, but I prefer Sanders’s Man’s Card to Clinton’s Woman’s Card.  And Clinton’s Woman’s Card to this: Trump’s fiscal, healthcare and environmental positions will be drafted by the Club for Growth and the Koch brothers’-sponsored so-called think tanks and lobbyists.  Just as his actual policy proposals published on his campaign’s website were.


UPDATE: Greg Sargent has an up-to-date summary of efforts at a Clinton/Sanders rapprochement.

And Alexandra Petri discusses her own Woman’s Card.  Hilariously.

Added 4/28 at 11:24 p.m.

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How I answered a survey from the Progressive Change Campaign Committee about the Merrick Garland nomination

I received an email this morning from the Progressive Change Campaign Committee,, asking that I complete a survey on the Garland nomination.  The email began with this question: What do you think about Merrick Garland and the Supreme Court vacancy now?  It continued:

The president nominated Merrick Garland to fill the vacancy on the Supreme Court.

After a day of media reporting on his record, and Senate Democrats calling for the process to move forward, we want to know how you feel about this fight.

Your answers below will help shape the PCCC’s activism on this.

Here are the survey questions and my answers:

QUESTION: Overall, how do you feel about President Obama’s decision to nominate Merrick Garland?

1) Very Enthusiastic   Somewhat Enthusiastic   2) Pretty underwhelmed   3) I do not like this decision   4) I don’t know

ANSWER: I do not like this decision


QUESTION: How enthusiastic are you to keep taking action against Senate Republicans to allow a hearing and fair process to move forward for Merrick Garland?

1) Very psyched. Ready to fight those Republicans!   2) Somewhat enthused. But we all need to take some action.   3) I still need to learn more before taking any action.   4) I’m not feeling it at all.

ANSWER: I still need to learn more before taking any action.

QUESTION: Wednesday, the PCCC launched a new petition saying this:

Petition: Now that the President followed the Constitution and nominated a Supreme Court Justice, Senate Republicans should do their job and allow a fair hearing and process to move forward. The Court needs someone who understands the real world impact of the Court’s decisions on hardworking Americans. 

Should we add your name to this petition?

1) Yes, add me as a signer.   2) No, do not add me as a signer.

ANSWER: No, do not add me as a signer.

QUESTION:  What do you like most about Merrick Garland being the nominee?

ANSWER: That he once dissented in a case in which his two panel colleagues (one of them John Roberts) ruled against a whistleblower and the federal government (who were on the same side in the case). Although the narrow issue was whether or not the False Claims Act applies to Amtrak contractors, Garland’s dissent did indicate strong support for the role of whistleblowers.  He dissented similarly in a free-press case involving disclosure of the names of whistleblowers (in a case in which the criminal defendant requesting the disclosure was actually a sympathetic figure and was innocent).

QUESTION: What do you like least about Merrick Garland being the nominee?

That his near-religious belief in the sanctity of precedent may mean that the precedents set by the Conservative Legal Movement justices, including those that overturned earlier precedents will remain law until one of the four conservative justices is replaced by a Dem president.  In other words, that the panoply of dramatic changes in the law amounting to a Conservative Legal Movement checklist with, by now, lots of checks indicating completion—Sherman’s-march-through-Georgia- style—will remain law for at least the next several years.  Citizens United and the Voting Rights Act opinions are just two examples.

QUESTION: What do you most still want to learn about Merrick Garland?

ANSWER: Because he is a judge on the D.C. Circuit rather than on one of the other regional circuit courts, he has never ruled in a habeas-petition case challenging the constitutionality of a state-court criminal conviction, and therefore on the threshold issue of federal-court jurisdiction in such cases. In other words: on the right of state courts to violate the constitutional rights of individuals.  I also would like to know how broadly he views the Supreme Court-fabricated “qualified immunity” of police officers and prosecutors who are sued for, say, withholding exculpatory evidence or just plain fabricating evidence.

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Conservative Legal Movement Week at the Supreme Court

This is Conservative Legal Movement Week at the Supreme Court.  (Okay, even more so than most weeks.)  Things really get going tomorrow, when the court will hear argument in two legislative-redistricting cases at the behest of (surprise!) Conservative Legal Movement voters represented by Conservative Legal Movement lawyers whose names on a petition for review (a “petition for certiorari”) guarantee that five justices will read the petition.  (All but one is a member of the usual-suspect crowd; the other one is a St. Louis-based lawyer I’ve never heard of, but presumably is active in Republican election-law circles.)

Things get going today with a state-sovereignty case, but this case is peanuts—just a small appetizer—compared with what will come tomorrow.  The first one tomorrow, Harris v. Arizona Independ­ent Redistricting Commission, is the one that will be argued by the St. Louis lawyer.  You can read about it here.  It is, best as I can tell—and I make no claim whatsoever to expertise in election law—by far the less far-reaching of the two redistricting cases, and because an outcome favorable to the petitioners, it seems to me, might not be an unalloyed long-term (or even short-term) victory for Republican candidates, an outcome in favor of the petitioners may not be in the bag.

Not so for the effects of a victory for the petitioners in Evenwel v. Abbott, Governor of Texas, the second case to be argued tomorrow.  Its purpose is to have the Supreme Court declare that legislative districts, federal and state, must be apportioned according to the number of eligible voters in each district, rather than the number of residents in each district as indicated by the Census.  So minors, recent immigrants or immigrants who have not yet gone through the naturalization process, convicted felons, and elderly Blacks who cannot produce a birth certificate from Nowhere County, Mississippi, will lose their status as legal constituents of the policymakers formerly known as their congressional or state legislative representative.

Which presumably would permit them to stop paying taxes, including sales taxes, since, y’know, the founders would be upset at the idea of taxation without representation.

This is outright crazy.  But it also in right in line with John Roberts’ own recent, surprising public statement about what his modus operandi is in joining with his four Reagan-era Conservative Legal Movement colleagues to make dramatic changes in broad areas of law: quiet.

As in, speak very softly and drive an armored vehicle (i.e., cases in obscure areas of election law and procedural and jurisdictional law the public has no clue exist) through the Democratic Party; labor unions; civil rights plaintiffs of the sort that benefited from the original purpose the Court stated for its “strict scrutiny” equal protection pronouncements that the Court now regularly disavows without actually mentioning that it is doing so (more about this, maybe, in a follow-up post about Wednesday’s argument at the court); civil rights plaintiffs who are challenging state and local authorities’ bald and routine violations of even the most obvious and fundamental civil and human rights; and ordinary consumers.  (Ordinary is a careful selected term or art here, but I won’t elaborate in this post.)

Roberts and his compadres  have, since the ’80s,  had a list of perhaps 10 areas of law that they they are hellbent on using the Supreme Court and the lower federal courts to rewrite.  It is the Federalist Society’s unabashed agenda.  But always—first, foremost and forever—their priority is using the Supreme Court to try to orchestrate a permanent Republican majority across the full breadth of elective office: the presidency, both houses of Congress, state governorships, state legislatures, and various county and municipal offices.  And Roberts, whose very essence is stealth, does not ever take is eye off that ball, even if his more intemperate or less skilled colleagues do.  If Roberts miscalculates on whether or not the public will notice a momentous opinions replete with bizarre statements—Citizens United, for example, in 2010—it may be time two years later to uphold much but not all of the Obamacare statute, since that issue wasn’t an election-law case and ruling striking the ACT down did have the potential to inure to the benefit of Democrats in the 2012 election.  Including to Obama.

So I guess I should add one more reason why the petitioners in Harris might lose: The opinion in Harris and the opinion in Evenwel will be released either on the same day or a day or two apart with Harris released first.  Seeee, everyone?  The Evenwel ruling wasn’t partisan.  Got that?

A coup by any other name—Supreme Court capture of the electoral process, I guess, would be the name—smells as rotten.

The case argued on Wednesday—and it is the only case to be argued that day; usually the Court hears arguments in two cases on the very few days each year on which it hears arguments—Fisher v. University of Texas at Austin, is a standard-issue affirmative-action-in-public-universities case, although this case is back for its second turn at the Court.

I might write more about this later today or tomorrow in a follow-post (Conservative Legal Movement Week at the Supreme Court, Part II, I guess), but this case has a remarkable peculiar twist added only at the Supreme Court level—normally problematic procedurally, but, well, y’know ….  This time around, aided by the suggestion of the dissenting judge (an aggressive, high-profile Conservative Legal Movement G.H.W. Bush appointee) on the lower appellate court panel that ruled in favor it the university and its admissions criteria, the petitioner, Abigail Fisher, a white graduate of a public high school in a wealthy Houston suburb, in claiming an affinity with African-American students who were admitted to the university.

It’s an insult to those students, she now claims.  And since for several reasons, including that her grades and SAT score were not high enough to gain her admission even without the school’s use of race in any aspect of the admissions policy, and that she long ago now graduated from another university (a weaker problem than the first, in my opinion), she may otherwise lack legal “standing”—an actual live and particularized injury—to pursue the case, she wants to piggyback on the insult she suddenly says was perpetrated on the Black students under the university’s admissions system the year she applied and admits now under the same policy.  She’s concerned about the university’s insult to the Black students they admit!

This is far more clever than her earlier piggybacking on Supreme Court petitioner Jennifer Gratz, the white salutatorian of her working-class suburban Detroit high school whose SAT score apparently wasn’t quite up to the par set by the children of more upscale folks, and who eventually won her case against the Supreme Court against the University of Michigan at Ann Arbor in 2003 (after she, too, had graduated from another university) in a case challenging not the university’s preference for the children of those who looked to be able to pay the tuition without financial assistance from the school or student loans, but instead the university’s racial affirmative action program.  Because, well, that was the only civil rights avenue available to her–although once the original purpose of the “strict scrutiny” test for determining equal-protection lawsuits, as has now occurred, the automatic application of strict scrutiny to any equal protection claim based on race, but not to most other grounds for a claim  of denial of equal protection, itself violates equal protection.  I would think.

But on the piggybacking-on-the-insulting-the-Black-admittees’ ground, three of the current justices, and (I think) Roberts as a lawyer for the Bush folks (I think), did think George W. Bush had legal standing to invoke the voting rights of Florida Republican voters whose votes would be diluted if all those ballots with hanging or pregnant chads used by Democrats in counties and precincts that hadn’t cleaned their punch-card equipment since the Civil War were counted.  Now, I’ll grant that the Bush v. Gore opinion did limit its ruling to that case only.  But there are other Republicans in need of such a courtesy from the Court, too, and Abigail Fisher seems to be one of them.  “Standing” on that ground is probably in the bag for Fisher.

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Enumerating the Silliness of the Wingers’ ‘Enumerated Powers’ Schtik

Reader Tony Wikrent posted the following comment this morning to my Sept. 20 post titled “Freedom!  Liberty!  And Being For the Little Guy.  As Brought to You By the Conservative Movement.”:

Actually, it turns out that if you are against big government, you ARE against all government. I’m surprised that conservatives who spout the “enumerated powers” argument have not been forced to respond to the historical facts that 1) President George Washington rejected their argument, and lined up with his Treasury Secretary Alexander Hamilton, in supporting Hamilton’s argument for implied powers; 2) first Chief Justice John Marshall, decided in favor of Hamilton’s arguments and rejected the argument used by today’s conservatives and libertarians; 3) Associate Justice Joseph Story, in his Commentaries on the Constitution, argues Hamilton is correct; 4) the Supreme Court has decided a number of times in lesser cases that Hamilton is correct.

But. our immediate concern is the argument that to be against big government is to be against all government. In the landmark case McCulloch v. Maryland: lawyer, William Pinkney, argued before the Supreme Court,

“It was impossible for the framers of the constitution to specify prospectively all these means, both because it would have involved an immense variety of details, and because it would have been impossible for them to foresee the infinite variety of circumstances in such an unexampled state of political society as ours, forever changing and forever improving. How unwise would it have been to legislate immutably for exigencies which had not then occurred, and which must have been forseen but dimly and imperfectly. The security against abuse is to be found in the constitution and nature of the government, in its popular character and structure. The statute book of the United States is filled with powers derived from implication.”

The decision in the case was unanimous, and it was written by Chief Justice Marshall:

“A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”

Marshall was not content to merely render the decision. He felt it necessary to directly discuss and dismiss the arguments in favor of the enumerated powers interpretation, noting “the baneful influence of this narrow construction” which would render “the Government incompetent to its great objects…” In other words, the case indeed, Marshall holds, is that if the national government were encumbered by the enumerated powers argument, it would effectively be powerless to govern, which is, so far as I can see, pretty much the state of things when you have no government at all.

It just amazes me that conservatives and libertarians are allowed to get away with their completely false interpretation of U.S. history in this matter.

The wingers memorize these mantras, cult-like—“The enumerated powers!”; the Tenth Amendment!”; Flat Earth Federalist Paper No. 846!” James Madison! Ichabod Crane!—with no actual understanding of, or detailed background about, what they’re mouthing.  What they’re mouthing is nonsense. Pure and (mindlessly) simple.  These people really do wing it.

So, so much of the Conservative Legal Movement is an outright fraud amounting to a quiet coup.

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Conservative-Legal-Movement Law Is Really Just a Kaleidoscope

After taking a nearly-month-long hiatus from blogging here about legal issues, and blogging only very lightly about other things, I posted this controversial post last Friday and participated in a lengthy comments thread.  The final comment of mine, in reference to some of the preceding comments of others and of mine, reads:

A final point on this subject: Whatever the predominant ethnicity of the brutal “states’ rights” culture of much of the South, an important indication that its core is not ethnicity but instead the defense of the “right” of states to allow slavery, or to allow whatever brutality they want to allow, is that (as I said above) Appalachia itself, which has a very large Scots-Irish population, actually had (I believe) very few plantations.  West Virginia, after all, was not a Confederate state, and northern Kentucky had large contingents of soldiers who joined the Union army.

I don’t think this is an ethnicity legacy. I think it’s a plantation-culture political and cultural legacy—one that is at the very essence of the Conservative Legal Movement, whether its adherents are from the South or instead from, say, New Jerseyupstate New York and Northwestern Indiana, or northern California.  The attribution of the current, funhouse-bizarre states’-rights legal movement to the alleged “structure” of the Constitution is a pre-Civil War, and therefore pre-Reconstruction Amendments, construct.  It should be recognized for the machination of constitutional law that it is.

So much of Conservative Movement constitutional and statutory-interpretation law is really just a kaleidoscope—false statements of factsleight-of-hand redefinitions of standard-English words and of earlier-defined legal standards, comedy-routine-caliber the-knee-bone-is-connected-to-the-thigh-bone-which-is-connected-to-the-hip-bone (whether or not it actually is) Dictionary games, malleable-as-needed Court-created legal doctrines, and a deeply institutionalized look-the-other-way-at-everything-but-Conservative-Movement-claims ethos.

What a cesspool.

A carefully crafted one, in fact.

Enough said.  For the moment.

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