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.

Wow.

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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The Mad Hatter Columbia U. Law Prof. Who Advised Comey That He Needed to Destroy the Village In Order to Save It* – UPDATED (His name is Daniel C. Richman.)

Daniel C. Richman, an adviser to Mr. Comey and a Columbia University law professor, argued that despite the backlash, Mr. Comey’s decision to inform Congress preserved the F.B.I.’s independence, which will ultimately benefit the next president. “Those arguing that the director should have remained silent until the new emails could be reviewed — even if that process lasted, or was delayed, until after the election — give too little thought to the governing that needs to happen after November,” Mr. Richman said. “If the F.B.I. director doesn’t have the credibility to keep Congress from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, the new administration will pay a high price.”

Former senior law enforcement officials in both parties, though, say Mr. Comey’s decision to break with Justice Department guidelines caused these problems. Had he handled the case the way the F.B.I. handled its investigations into the Clinton Foundation and Mr. Manafort over the summer, the argument goes, he would have endured criticism from Republicans in the future but would have preserved a larger principle that has guided cases involving both parties. …

F.B.I.’s Email Disclosure Broke a Pattern Followed Even This Summer, Matt Apuzzo, Michael S. Schmidt, Adam Goldman and William K. Rashbaum, New York Times, today

Gotta say, Comey comes off in this Washington Post article today as dumber than a rock.

— Me, here, yesterday

The particular part of that Washington Post article yesterday, by Ellen Nakashima, that I had most in mind was this:

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You read it here first, AB readers. … [Important addendum added.]

I scooped everyone!

____

ADDENDUM: I would note that Ruth Bader Ginsburg will turn 83 on March 15 and that, while clearly still mentally very sharp, does not appear to be in good physical health.  There’s been a lot of speculation that if the Dem nominee, very likely now Hillary Clinton, wins the general election, and the Republicans retain control of the Senate (very unlikely, in my opinion, but probably not in theirs), they will continue to refuse to allow hearings on a Supreme Court nominee to fill Scalia’s seat.

I (strongly) suspect that the Republican idea is that Ginsburg will leave the Court fairly early into the next administration because of physical disability or death, and that the two overtly political cases currently before the Court, whose clear purpose is simply to skew elections to Republicans—and which now are deadlocked 4-4, and which the Court, rather than affirming by deadlock in a non-precedential ruling the lower appellate courts’ ruling not in favor of the Republican Party’s bald political interests, will instead be reargued next term.  Voila! Precedential opinions, by a 4-3 vote, profoundly skewing elections to favor the Republican Party.

The Federalist Society has gamed this out.  Trust me.

Meanwhile, the wingnut “legal foundations” that represent the petitioners in those two cases and that regularly fabricate cases for the Supreme Court to employ by a one-vote margin as their quiet-coup mechanism, will be working overtime (no, I mean even more so than usual) cooking up other cases on the wingy to-do list.

They know that this is not sustainable forever.  But they think it is sustainable long enough for them to accomplish their top priorities.

The Dem presidential candidates should talk about this.  I call this the Republicans’ wing-and-a-prayer strategy.  The Dem candidates, and Obama as well, should call it this, too.

They also should call it this: an attempt to orchestrate a silent coup.  I’ve been wondering whether issues other than the damn culture-wars ones that are at issue in Supreme Court appointments will ever get any attention from the Dem candidates.

I don’t think Clinton has the intellectual capacity to discuss, or the interest in discussing, anything but the culture-wars issues when mentioning the importance of Supreme Court appointments.  And Sanders, unlike Clinton, has no background in law.  But he should get information about both of the current Supreme Court cases I am referring to–Evenwell v. Abbott and Friedrichs v. California Teachers Assoc.–from people who know quite a bit about them.  And then he should discuss these.  These are the very types of things that his candidacy is about.

Added 3/3 at 12:15 p.m.

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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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