Joe Biden is refusing to release a list of the judges he would consider nominating to the Supreme Court should he become president. In explaining why, Biden suggests that “putting a judge’s name on a list like that could influence that person’s decision making as a judge, and that would be wrong.”
It would be wrong yes. And that Biden thinks that this is likely behavior from the people he has in mind tells us exactly why he is reluctant to name them.
There are a lot of bad arguments to be made about why Republicans should not move forward with confirming a new Supreme Court justice. Just a few days after Ruth Bader Ginsburg’s death — may she rest in peace — we’ve heard a lot of them. We’re sure to hear plenty more in the coming weeks. Far and away the grossest and most craven though, is that it would violate Ginsburg’s “dying wish.” In a statement dictated to her granddaughter, Ginsburg announced that “My most fervent wish is that I will not be replaced until a new president is installed.”
It’s to be expected that Ginsburg would prefer not to have her replacement picked by Donald Trump. And I don’t know anyone that would begrudge an 87-year-old woman for expressing that preference on her deathbed. Unfortunately, though, many of those who share Ginsburg’s wish for her replacement have decided to disregard our constitutional order and dishonor her memory by arguing that it is only decent to respect it.
Justices have no authority with which to decide who will replace them, excepting their ability to retire while a president of their own party holds White House. There’s nothing disrespectful about Republicans filling her seat with an eminently qualified nominee such as the Seventh Circuit’s Amy Coney Barrett.
In fact, it is Democrats who do Ginsburg a disservice by repeating her deathbed utterance and asserting it as binding. Representative Alexandria Ocasio-Cortez ripped Majority Leader Mitch McConnell as “a man who does not care about a dying woman’s final wish.” This is attempted political and emotional hostage-taking. Again, I do not blame for Ginsburg issuing this statement as she faced her final days on earth, but it was not an entirely appropriate one for a justice to make, and I do blame Democrats for using it in the way they have.
While it makes for a seemingly strong emotional appeal on the surface to ask that Republicans respect “a dying woman’s final wish,” neither the president nor the Senate is under any moral or political obligation to fill the seat with a nominee in Ginsburg’s mold. Would Democrats, if they held the presidency and a majority in the Senate, feel obligated to hold off if a conservative justice passed away and expressed aloud his obvious preference that someone of similar ideological leanings replace him? The answer is obvious.
Politicos who use Ginsburg’s dying wish as a political weapon are apparently less concerned with honoring Ginsburg legacy than they are with not suffering a political setback. They have even proven willing to sacrifice the former to prevent the latter. More than Mitch McConnell, they cheapen Ginsburg’s loss.
You can read his speech, given ten days after Antonin Scalia’s death, here in the Congressional Record. The point he was making is clear: The Senate is not expected to confirm Supreme Court nominees during an election year, especially when the president is of the opposing party. While he certainly used some “let the people decide” rhetoric — and also quoted statements from Joe Biden taking a broader stance against election-year nominations — at no point did McConnell announce a general principle that the Senate should never confirm nominees in these times, even when the majority party wants to.
Just a few paragraphs into the speech, McConnell started making references to the importance of divided government to the situation (all the boldings in this post are mine):
One might say this is an almost unprecedented moment in the history of our country. It has been more than 80 years since a Supreme Court vacancy arose and was filled in a Presidential election year, and that was when the Senate majority and the President were from the same political party. It has been 80 years.
Since we have divided government today, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances.
He then pointed out that Democrats wouldn’t hesitate to use the same tactics, again repeatedly noting the importance of divided government:
We already know the incoming Democratic leader’s view. The senior Senator from New York didn’t even wait until the final year of President George W. Bush’s term to declare that the Senate “should reverse the presumption of confirmation” and “not confirm a Supreme Court nominee except in extraordinary circumstances.”
We also know how the current Democratic leader feels about judicial nominees from a President of the other party. This is what he said:
“The Senate is not a rubberstamp for the executive branch,” he said. “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”
What about the views of the top officer of this body, the President of the Senate? Joe Biden was a Senator for many decades. . . . Let’s consider what he said in circumstances similar to where we find ourselves today. It was an election year with campaigns already underway, a President and a Senate majority from different political parties, just as we have today. This is what appeared on page A25 of the Washington Post:
Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Judiciary Committee, has urged President Bush not to fill any vacancy that might open up on the Supreme Court until after the November election. Warning that any election-year nominee “would become a victim” of a “power struggle” over control of the Supreme Court, Biden said he would also urge the Senate not to hold hearings on a nomination if Bush decided to name someone.
Now, you can debate whether the rules and norms governing Supreme Court confirmations are good. I tend to think that, ultimately, we’ll need serious reforms, such as fixed 18-year terms for justices.
But the constitutional rule is that the president has a right to nominate and the Senate has a right to confirm; the historical norm is something like “the Senate can hold a seat open in a presidential-election year, but it’s not expected to if it doesn’t want to”; and the principles McConnell laid out in 2016 do not require him to hold off on confirming a nominee to replace Ruth Bader Ginsburg.
Slate’s Dalia Lithwick hopes that Americans will fight an “almighty battle” to prevent Republicans from replacing RBG in the coming weeks. This being so, I am interested to know whether she still believes what she purported to believe in 2016: that, “in the absence of a Senate hearing on [a] nomination, one certainly might infer that the Senate has by now consented.”
This theory — that if a president nominates a justice and the Senate ignores the nomination, the nominee should be deemed to be seated — was described by Lithwick as “very plausible.” She even suggested that it was bolstered by “law review” research.
If Lithwick does still believe this, then it seems fairly obvious what President Trump and Mitch McConnell need to do to seat a replacement. If Lithwick doesn’t still believe it, one has to ask why she said it in the first place, and to what extent we should trust her legal analysis going forward.
Joe Biden and Lindsey Graham have both flip-flopped on the appropriateness of confirming a new Supreme Court justice during a presidential election year.
While pushing for the confirmation of 2016 Obama-appointee Merrick Garland, then-vice president Biden, who had served as chairman of the Senate Judiciary Committee during George H. W. Bush’s final year in office, said: “I made it absolutely clear that I would go forward with the confirmation process as chairman even a few months before a presidential election.” Biden now opposes moving forward with a Supreme Court confirmation in an election year.
In 2018, Lindsey Graham, the current chairman of the Judiciary Committee, promised to hold open a Supreme Court vacancy during the final year of President Trump’s first term, a pledge he abandoned in 2019. (Contrary to many reports in the press, Senate majority leader Mitch McConnell did not make the same promise or argument as Graham; McConnell said that when the presidency and the Senate were held by different parties, an election-year vacancy should be held open to let the voters settle the dispute.)
But the flip-floppery of Biden, Graham, and many others doesn’t change the fact that there is a real and clear constitutional standard: The president has the constitutional authority to appoint a nominee when vacancy arises, and the Senate has the constitutional authority to confirm or block that nominee (with or without an up-or-down vote).
That’s it. That’s the constitutional rule governing all Supreme Court vacancies.
Some congressional Democrats and their allies in the press are now threatening to pack the Supreme Court with additional justices if the president and a majority of the Senate now exercise authority explicitly granted to them by the Constitution and fill the current vacancy.
Filling a vacancy now is not the end of the Supreme Court, but packing the Court would be. At that point, there is only really a legislature and executive branch — control of the Court would change every time one party takes control of the House, Senate, and White House.
By packing the Supreme Court to prevent it from possibly chipping away at Roe v. Wade, congressional Democrats would guarantee that Republicans would pack the court at their next opportunity and certainly scrap Roe v. Wade. Is that something Democrats really want to do?
Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that “Other than slavery, which was a different kind of restraint, [the pandemic lockdowns are] the greatest intrusion on civil liberties in American history.” The mere mention of slavery tends to overshadow all else (even though he was explicitly not making that comparison), and even accepting Barr’s own terms, the lockdowns are still not comparable to 75 years of Jim Crow or the internment of Japanese Americans, to pick two glaring examples.
The speech itself, however, deserves more careful thought, with renewed attention on the constitutional separation of powers, and it is worth reading in its entirety. Barr’s central argument draws heavily on the “unitary executive” theory laid out in Justice Scalia’s famous Morrison v. Olson dissent — a theory of executive power that was dominant from the American Founding through the Civil War. Specifically, Barr argues that the executive power over federal prosecutions properly and constitutionally rests with the president and with presidential subordinates who answer to the president, rather than with unelected, unaccountable, permanent civil servants:
The most basic check on prosecutorial power is politics. . . . But political accountability — politics — is what ultimately ensures our system does its work fairly and with proper recognition of the many interests and values at stake. Government power completely divorced from politics is tyranny . . . it has become fashionable to argue that prosecutorial decisions are legitimate only when they are made by the lowest-level line prosecutor handling any given case. Ironically, some of those same critics see no problem in campaigning for highly political, elected District Attorneys to remake state and local prosecutorial offices in their preferred progressive image, which often involves overriding the considered judgment of career prosecutors and police officers. But aside from hypocrisy, the notion that line prosecutors should make the final decisions within the Department of Justice is completely wrong and it is antithetical to the basic values underlying our system. The Justice Department is not a praetorian guard that watches over society impervious to the ebbs and flows of politics. It is an agency within the Executive Branch of a democratic republic — a form of government where the power of the state is ultimately reposed in the people acting through their elected president and elected representatives . . .
The same process that produces these officials also holds them accountable. The elected President can fire senior DOJ officials at will and the elected Congress can summon them to explain their decisions to the people’s representatives and to the public. And because these officials have the imprimatur of both the President and Congress, they also have the stature to resist these political pressures when necessary. They can take the heat for what the Justice Department does or doesn’t do. Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions. Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials. Indeed, the public’s only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.
This is absolutely correct, and how the system is designed. Of course, where it gets much stickier is when federal prosecutors are on the trail of the president himself, his friends, or his enemies. Our system was not designed for that; at the Founding, there were few federal crimes and no Department of Justice (which was created in 1870). To the contrary, the most mischievous political crime on the books — treason — was explicitly limited in the Constitution. But every procedural tool created to remedy the problem has created problems of its own, which is why I have proposed both a modest method for protecting special-counsel investigations by triggering mandatory disclosures to Congress if the special counsel is fired, and, more structurally, the creation of a separate department for handling political-corruption cases, so that controversies of this nature do not unduly distract from the rest of the Justice Department’s work. In either case, however, the ultimate power remains with the president, and the ultimate remedy with the voters.
While Barr is right in theory, he has been subjected to a lot of criticism in practice for his handling of cases involving the president’s friends. I have defended the push to drop the Michael Flynn prosecution, which should not have been brought. Roger Stone was properly prosecuted and very improperly given clemency by the president (reportedly over Barr’s objections); Barr was involved in pressing for a less draconian but still substantial sentence, which was a more defensible stance given the absurd sentence originally proposed. He has been called, properly enough, to defend that role before Congress, and to answer for it to the DOJ Inspector General. But the IG can only deliver a report; what the House can do, if it genuinely believes that Barr has crossed a line, is impeach him or defund his department.
Barr makes two other cases, besides the constitutional design, for why the attorney general, unless recused from a case, must have the power to supervise all prosecutions. One is the nature of management and its relationship to accountability:
[D]evolving all authority down to the most junior officials does not even make sense as a matter of basic management. Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct. There aren’t any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency. Good leaders at the Justice Department — as at any organization — need to trust and support their subordinates. But that does not mean blindly deferring to whatever those subordinates want to do.This is what Presidents, the Congress, and the public expect. When something goes wrong at the Department of Justice, the buck stops at the top.
The other is the very principle against which Barr’s handling of Flynn and Stone must be judged: consistent application of the rule of law:
The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply to similar cases. Treating each person equally before the law includes how the Department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery, or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in the division down the hall would not deploy against someone who engaged in indistinguishable conduct.
Barr also made the case for a broader rethinking — the sort long pressed by the criminal defense bar — of how DOJ stretches the law:
One area in which I think the Department of Justice has some work to do is recalibrating how we interpret criminal statutes. In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it. The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits. We are the Department of Justice, not the Department of Prosecution. We should want a fair system with clear rules that the people can understand. It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors. Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about. That rule should likewise inform how we at the Justice Department think about the criminal law. Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct. But that is what it means to have a government of laws and not of men. We cannot let our desire to prosecute “bad” people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them.
This is, again, a standard that Barr can and should be held to. The white-collar business and political defense bar has drawn, properly, a lot of attention to the nebulous uses of criminal law, including the many process and regulatory crimes in the federal criminal code — a good many of which involve the violation of some regulation never written by Congress, and which do not require proof of criminal intent. But DOJ also has an obligation to apply these same principles in considering how it prosecutes drug cases, immigration-related crimes, and other areas where defendants tend to be poorer and less well-represented.
Barr’s other major warning was about the overcriminalization of politics — a longstanding complaint of conservatives, but an ironic one from the attorney general of a president who led “lock her up” chants on the campaign trail:
If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad naseum speculation by legal pundits — often former prosecutors themselves — that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute. This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.
The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide. This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.
The particular threat of overcriminalizing politics is that political investigations tend to be lengthy, leaving public officials under a cloud long before anybody has charged them with anything. And it can be abused in obvious ways. State prosecutors have brought some of the worst ones in recent years: the abusive prosecution of Rick Perry for trying to oust a DA who abused her office when arrested for DWI, the Wisconsin and California investigations targeting conservative donors, the California prosecution of David Daleiden for undercover journalism against Planned Parenthood.
The test of Barr’s commitment to this principle will come with the work of John Durham, who is investigating the Russiagate investigators. Durham has thus far brought only one case, and is reportedly under some fairly intense pressure to wrap up his investigation soon, perhaps in time for the election. Neither Durham nor Barr should be rushing things on a political calendar. The rule of law demands that Durham bring charges if they are well-founded, and doing so will promote respect for the idea that federal prosecutors and investigators are not themselves above the law. But if Durham brings charges that require creative or aggressive readings of the law, then both he and Barr should be criticized for violating Barr’s own standards.
In order to be held to standards, you must first have some. Barr’s speech lays out a strong case for how the Department of Justice should work. Where he can be charged with failing to follow those standards himself, it is up to political actors and voters to hold him to account.
With the passing of Ruth Bader Ginsburg, there is a vacancy on the Supreme Court. We will now watch a frenetic debate over whether it is “proper” for the Republican Senate to fill that vacant seat before the presidential election.
I must confess that, while I accept that the history is certainly on the side of filling it, I have never found this debate especially meaningful. As I wrote when Antonin Scalia died, this is an entirely straightforward question, the details of which are the same at all times within the cycle. In our system, the president gets to nominate a justice, and the Senate gets to decide whether to accept that nomination, to reject that nomination, or, if it likes, to completely ignore that nomination. This was true in 2016, and it is true now. The game requires both players. If they are both willing, the vacancy is filled. If one is not willing, the vacancy remains. And that, ultimately, is all there is to it.
As a matter of pure self-interested calculation, I would expect Donald Trump to try to get a new Supreme Court justice confirmed before the election. That will provide exactly the kind of galvanizing fight that he thrives on, and he has more to gain from giving Republicans something to fight for right now than he does from giving Democrats one more reason to want to beat him in November. Trump either wins reelection (less likely) or (more likely) sets himself up to go out in a blaze of glory — provided that Mitch McConnell can actually deliver the votes.
I can only imagine the conversations going on right now. After the Kavanaugh fiasco, there are many Republicans who would love to rub Democrats’ noses in it. And when Republicans say that the Kavanaugh fight was an open invitation from Democrats to fight dirty on Supreme Court nominations, they won’t be entirely wrong. What are the Democrats going to accuse the nominee of this time? Cannibalism? Inventing the coronavirus?
I find it hard to imagine Trump’s sitting on this one until after the election.
In response to the news that Supreme Court Justice Ruth Bader Ginsburg died on Friday evening at the age of 87, Senate majority leader Mitch McConnell issued the following statement:
The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.
Justice Ginsburg overcame one personal challenge and professional barrier after another. She climbed from a modest Brooklyn upbringing to a seat on our nation’s highest court and into the pages of American history. Justice Ginsburg was thoroughly dedicated to the legal profession and to her 27 years of service on the Supreme Court. Her intelligence and determination earned her respect and admiration throughout the legal world, and indeed throughout the entire nation, which now grieves alongside her family, friends, and colleagues.
In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.
By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.
President Trump’s nominee will receive a vote on the floor of the United States Senate.
“Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration,” Dan McLaughlin noted in a recent article for National Review. “The president made a nomination in all twenty-nine cases.”
“In the absence of divided government, election-year nominees get confirmed,” McLaughlin wrote. “[A]n election year alone is not the historical rule [for holding a seat open]. It is not what Mitch McConnell said at the time [in 2016], and it is not what Grassley said at the time, either.”
Justice Ruth Bader Ginsburg left our world for a better one today. Ginsburg was the consummate American and patriot, and if there’s a comforting thought to be had this evening, it’s that she’s been reunited with her friend: the late, great Justice Antonin Scalia.
The Supreme Court announced that Ginsburg died of “complications of metastatic pancreas cancer.” There’s so much to say about this awful disease. It accounts for 3 percent of cancer cases in the U.S. but 7 percent of cancer deaths. That’s because it has the lowest five-year survival rate of all major cancers at about 9 percent. Even the less threatening, local disease — which is rare — has a survival rate of only 37 percent. It takes the third most lives of any cancer every year, behind only lung and colon/rectal cancer. In 2020, the American Cancer Society predicts that almost 58,000 Americans will be diagnosed with the disease and over 47,000 Americans will die.
When my grandfather was diagnosed with pancreatic cancer in 2009, I was about to start the sixth grade, and my family was moving into my grandparents’ house because my dad had just quit his job to go back to school. We all were aware of the grim prognosis, and we were devastated. Nevertheless, my grandfather, a practicing psychologist, didn’t seem to slow down a bit. He kept participating in family wiffle ball games, he never made a peep about the pain, and he even would drop me off at school every day at seven in the morning on his way to work. It went on like this for around seven or eight months. We couldn’t believe it. It turned on a dime though, as pancreatic cancer is wont to do. Suddenly the man who was driving me to school in the morning was spending most of his time in a hospital bed they put in his room. Nine months after his diagnosis, he passed away.
I don’t know exactly how Ruth Bader Ginsburg’s cancer progressed. I do know that it’s remarkable that she did not succumb to this insidious ailment until eleven years after she first underwent surgery for it. It was characteristic of Justice Ginsburg to beat the odds. But I doubt that that makes tonight any easier for her family. No matter how well the patient seems to be doing or how long they’ve been fending it off, pancreatic cancer never seems to surrender. We should all strive to be equally relentless in our own pursuit of more awareness, better treatments, and — this evening in particular — treating each other with decency and respect. It’s what Justices Ginsburg and Scalia would want from us.
This week, I watched videos of people literally burning Harry Potter books, like latter-day Nazis, in the cause of transgender liberation. It’s safe to say, I think, that many of these people have lost their minds — just by staying online. And they not only think they’re perfectly sane; they think they’re heroes.
I’ve been reading #GKChesterton at night before falling asleep. If you want to be transported out of this vulgar, hate-spewing brainless, illiterate world we live in, GK is your man. Witty, optimistic, learned, insightful, gentle, joyous, – a balm for the soul.
When it’s not coming up with ways to erode freedom of speech, the Scottish government is introducing policies to undermine freedom of assembly. Not only are Scots — like their English counterparts — no longer allowed to assemble in their homes in groups larger than six, they are now being encouraged by the First Minister, Nicola Sturgeon, to report their neighbors to the police, should they suspect them of breaking this sacred social-distancing rule.
From the handshake to mandatory office attendance, COVID-19 may serve to permanently undermine many human customs and conventions. Let’s hope democracy isn’t one of them.
There is no context in which sexualizing children is acceptable. If you believe that, you will also consider the French movie Cuties to be unacceptable. This moral objection is obvious and straightforward and has nothing whatsoever to do with the filmmaker’s noble intentions or any other artistic merit the movie may possess. Yet there are some commentators (as Alexandra DeSanctis has pointed out) claiming that only wacky right-wing conspiracy theorists or those trying to undermine children of color, would hold this view. Two recent interventions suggest otherwise.
The National Center for Missing & Exploited Children (NCMEC) released an open letter on the movie, explaining:
On many occasions, the entertainment industry has played a valuable role by offering constructive social commentary and highlighting the many threats facing our children. However, regardless of intent, any portrayal of a child that objectifies them or depicts them in an indecent or exploitative way is cause for great concern. We encourage people to learn more about the true harm of child sexual exploitation from NCMEC and other organizations dedicated to the protection of children.
Lina Nealon of the National Center on Sexual Exploitation also offered clear-sighted analysis:
While we commend Maïmouna Doucouré for exposing the very real threats to young girls having unfettered access to social media and the internet, we cannot condone the hypersexualization and exploitation of the young actresses themselves in order to make her point.
The NCSE went further, arguing that there is merit to the Twitter movement, “#CancelNetflix.” Nealon suggested that to absolve itself, the streaming service “could and should insist that the particularly sexually-exploitative scenes are cut from the film, or stop hosting this film at all.” She’s right, of course. So why hasn’t Netflix done this?
On Thursday, it was reported that the Department of Education is launching an investigation into race-based discrimination at Princeton University. The investigation comes after Princeton president Christopher Eisgruber did his best Harvey Dent impression — “Take the racist into custody, I am the racist” — on September 2 in a letter addressed to the Princeton community. In the letter, Eisgruber makes claims that “racism and the damage it does to people of color nevertheless persist at Princeton” and, even more damning, that “racist assumptions from the past also remain embedded in structures of the University itself.”
In a letter of its own, this one addressed to President Eisgruber, the Department of Education points out that these claims stand in contravention with Princeton’s past declarations that it has been complying with Title VI of the 1964 Civil Rights Act, which states that federally funded institutions and programs may not discriminate “on the ground of race, color, or national origin.” The letter goes on to ask for Princeton’s cooperation in its investigation and to warn that, based on the results of that investigation, Secretary Betsy DeVos may take “action to recover funds” and initiate a “fine proceeding.”
The letter was met with enthusiastic acclaim on the right and outrage on the left. I find myself somewhere between joyful and scandalized over Princeton’s new headache.
If there’s one thing that’s clear, it’s that this is a mess entirely of Eisgruber’s making. No one forced Eisgruber to declare Princeton University — one of the country’s most progressive institutions — a place where pervasive systemic racism does damage to minorities with the misfortune of being there. The self-flagellation is worthy of criticism. Moreover, the Department of Education has a responsibility to ensure that its funds are not being sent to institutions in violation of Title VI. It also has an interest — if a federally funded institution is not guilty of discrimination — in that institution not declaring that it is.
Nevertheless, I have reservations. I do not for one second believe that DeVos thinks that Princeton is in fact discriminating against students, faculty, and staff on the basis of race. The only evidence of “racist assumptions” that Eisgruber cites in his letter is that “nine departments and programs organized around European languages and culture, but only a single, relatively small program in African studies.” It is doubtful that the Trump Department of Education considers this to be evidence of discrimination. And if it does, will it be conducting investigations of all schools with similar disparities in the size of their European and African studies programs? Also, to acknowledge that racism persists in some form at Princeton does not mean that the University itself is discriminating against people of color.
This investigation, then, is being pursued not because the Department of Education suspects that Princeton is guilty of racial discrimination, but to make a political point about the absurd and overly broad definition of racism peddled on the left and championed by elite academic institutions such as Princeton. It’s an important point, but there’s something about an arm of the federal government threatening to pull funding to make it — under the pretense of investigating racial discrimination that it doesn’t believe exists — that I find troubling both inherently and as a precedent.
There has been concern about federal overreach in some quarters of the conservative movement about the Trump administration’s 1776 Commission and promotion of a patriotic-education alternative to the 1619 Project. Those strike me as far more effective and less suspect measures than its investigation into Princeton’s supposed bigotry.
Apparently the goal of winning the election by mail-in ballots isn’t going as well for Democrats as they had hoped. How else to explain Biden health-care adviser, the bioethicist Ezekiel Emanuel, coming out and urging people to vote in person? From the CNN story:
Recently, Dr. Ezekiel Emanuel, who served as an adviser in the Obama administration, analyzed the relative risk of contracting coronavirus while voting and came to a simple conclusion.
“There’s a lot of conversation about voting, but we looked at the data. It seems most like shopping at the grocery store. And that has some risk but it’s pretty low risk,” Emanuel said in an interview.
Emanuel said that conclusion is based on a better understanding of how the virus spreads, the widespread availability and use of face masks and other precautions, as well as evidence suggesting that voting, like grocery shopping, has not led to any widespread outbreaks since the beginning of the pandemic.
“There are ways and reasons to vote in person,” Emanuel said. “People should not fear for their lives by going out and voting. It’s a hell of a lot safer than going to a restaurant.”
How interesting. It is worth remembering that Emanuel was very recently the lead signatory of an open letter signed by “experts,” last updated September 1, calling for a second complete nationwide shutdown. From the letter:
Non-essential businesses should be closed. Restaurant service should be limited to take-out. People should stay home, going out only to get food and medicine or to exercise and get fresh air. Masks should be mandatory in all situations, indoors and outdoors, where we interact with others.
“You should bar non-essential interstate travel. . . . If you don’t take these actions, the consequences will be measured in widespread suffering and death.”
So, less than a month ago, Emanuel said people should stay home, but now says people can safely vote?
Such a radical shift doesn’t make sense unless the driving force behind both calls is more about politics than science.
Trump never quite comes out and says he hates masks, and his advisers downplay his opposition, but he’s obviously not an enthusiast. This is foolhardy for two reasons:
1) Masks are the best tool we have at the moment, and they are certainly preferable to lockdowns. Maybe we will eventually learn that masks aren’t as effective as we currently think, but the latest evidence on how the virus spreads — I found this piece really helpful — supports their importance. The president shouldn’t be out there fostering doubts about them.
2) One reason that Trump’s numbers are so poor on his handling of the coronavirus is the understandable sense that he has downplayed it throughout and has too cavalierly dismissed the advice of experts. Public spats with his CDC director play into these real vulnerabilities that could help make him a one-term president.
Daniel Cox (an AEI colleague of mine) and Amelia Thomson-DeVeaux are asking why Democrats aren’t doing more to court it.
More than one-third of the people who voted for Clinton in 2016 were religiously unaffiliated, making them just as electorally important for Democrats as white evangelical Protestants are for Republicans. Yet despite constantly hearing about the importance of white evangelical voters in an election cycle, Democratic politicians have been slow to embrace the growing number of nonreligious people who vote for them. Why?
One possibility that comes to my mind: Democrats are courting a large segment of these voters through their support for social liberalism and wokeness, which have come for that segment to function as a partial substitute for religion.
The former George W. Bush speechwriter, now at the Washington Post, explains why he is voting for Joe Biden even while disagreeing with him about abortion.
I expect to make a fuller statement of my own views about how pro-lifers should think about the election in due course. Here, at the risk of being unfair to Gerson, who couldn’t reasonably be expected to address all of these issues in the space of a column, I’ll note four holes I find in his argument.
First: He assumes that making the case that a pro-lifer should not vote for President Trump amounts to making the case that he should vote for Biden. There are other options: third-party candidates, write-ins, abstention. Gerson may have good reasons for rejecting those options, but many points of his argument — the duty of voters to avoid “complicity in grave wrongs,” for example, which he invokes only in making the case against Trump — requires him at least to consider them.
Second: Gerson proceeds as though he need only establish that pro-lifers should not be single-issue voters to clinch his case. “If other matters are allowed to matter, the floodgates open,” he writes. There is, of course, an alternative to treating abortion as the only issue to determine one’s vote and ignoring it altogether, and that is giving it a great deal of weight. I imagine Gerson would agree with that point. But he doesn’t engage in that weighing. Having established that voters may take account of other considerations, he just moves on to listing ones that militate against Trump and then shares his conclusion that he’s going to vote for Biden.
Third: Gerson does not mention Biden’s support for taxpayer funding of abortion, or his party’s increased commitment to it. He notes that abortion rates dropped under President Obama. But we didn’t have Medicaid funding of abortions under Obama, and the Democratic Party of that era was much less united behind that goal. We have good reason to think that Medicaid funding would increase the death toll from abortion.
Fourth: A dimension of the injustice of abortion is entirely neglected in Gerson’s analysis. That injustice includes both the unjustified killing of unborn children and the law’s treatment of unborn children as non-persons who do not deserve protection. The pro-life slogan that unborn children should be “protected in law and welcomed in life” captures both of these dimensions. Gerson ignores one of them when he says that even if Trump’s reelection led to “a significant retreat from Roe,” Americans would mostly live under the same abortion laws as now. Maybe so. But a significant reduction in the abortion rate would be possible, and ought to matter even on Gerson’s own argument. And it would no longer be the official policy of the federal government that our Constitution makes unborn children non-persons with no rights, which ought to matter too.
Gerson says that his voting intention is “uncomfortable but inevitable.” I think it is less inevitable than he believes, and that he has made it more comfortable than it ought to be.
Van Morrison, the prickly 75-year-old Northern Irish folk-soul singer, has written three new songs that blast away at the government, pseudoscience, incursions on liberty, and coronavirus-based hysteria. One song, “No More Lockdown,” reports the BBC, contains such lyrics as “No more lockdown / No more government overreach/No more fascist bullies / Disturbing our peace/No more taking of our freedom / And our God given rights / Pretending it’s for our safety / When it’s really to enslave.”
Morrison has declared a personal interest: He thinks socially distanced concerts are economically untenable for performers. He has sung at three such concerts this month and is evidently irritated by the restrictions on ticket sales necessitated by social distancing. “I call on my fellow singers, musicians, writers, producers, promoters and others in the industry to fight with me on this,” he has said. “Come forward, stand up, fight the pseudo-science and speak up.”
The health minister for Northern Ireland has denounced Morrison. Says Robin Swann, “I don’t know where he gets his facts. I know where the emotions are on this, but I will say that sort of messaging is dangerous.”
News broke yesterday evening that the Department of Education has opened an investigation into Princeton University, a couple of weeks after university president Christopher L. Eisgruber asserted in an open letter that “racist assumptions from the past also remain embedded in structures of the University itself.”
“Based on its admitted racism, the U.S. Department of Education . . . is concerned Princeton’s nondiscrimination and equal opportunity assurances in its Program Participation Agreements from at least 2013 to the present may have been false,” department officials wrote in a letter to Princeton announcing the investigation.
Just after news of the investigation became public, Princeton released a PR statement in response, the upshot of which was, in essence, “You’re supposed to take us seriously but not literally.”
”Princeton has long been committed to creating and maintaining a community where all can thrive, and stands by its representations to the Department and the public that it complies with all laws and regulations governing equal opportunity, non-discrimination and harassment,” the statement read in part. “This work is core to the University’s teaching and research mission, and we are vigilant in our pursuit of equity in every aspect of our programs and operations.”
Nevertheless, Princeton doubled down on Eisgruber’s assertion from his September 2 open letter: “The University also stands by our statements about the prevalence of systemic racism and our commitment to reckon with its continued effects, including the racial injustice and race-based inequities that persist throughout American society. ”
The statement also decried the Department of Education, saying it “appears to believe that grappling honestly with the nation’s history and the current effects of systemic racism runs afoul of existing law.”
Regardless of one’s views about the accuracy or sincerity of Eisgruber’s initial comments, or about the prudence of the Education Department’s decision to open the investigation, the entire situation exposes the Catch-22 of the Left’s approach to rectifying social and racial injustice.
Almost certainly, when he wrote his initial letter confessing that racism remains “embedded” at Princeton, Eisgruber imagined that having made this assertion — in his view, it seems, more an admission of guilt than an assertion — would earn the university some kind of praise from the entities it wishes to pacify. At the very least, it’s hard to believe he would have issued such a statement, surely vetted by other responsible parties within the university, had the institution felt it unnecessary to say anything about Princeton’s history of racism and supposed ongoing complicity in that racism.
The institution wouldn’t have made this statement except under duress, feeling in the current climate some sort of pressure to admit its guilt, pressure so strong that it outweighed the understandable fear of whatever consequences might follow having admitted to racism. It isn’t hard to see where this pressure might come from, as the Left increasingly insists that declining to trumpet one’s complicity in racism is itself a violation of racial justice.
Judging from Princeton’s indignant response to the Education Department’s investigation, Eisgruber and his fellows assumed that, having made the requisite apologies and confessions, absolution and perhaps even canonization were their due.
Instead, they’ve been taken at their word. It’s hard to have much sympathy.
Is Brown University’s Costs of War Project laundering Syrian government talking points, or is the Assad regime taking advantage of Brown’s research?
A study issued last week by the project made the extraordinary claim that post-9/11 military action by the United States has created 37 million refugees — which is only the most conservative estimate, according to its authors.
While estimating the impact of U.S. military action is a worthy goal, the study’s authors simply blame American policymakers for the actions of their foreign counterparts. The siege of Aleppo, resulting in hundreds of thousands misplaced? That’s part of the U.S.’s tab. The displacement of 4.2 million people in Somalia? Attributable to the U.S. special operations forces there — all 400 of them.
At best, as this is an egregious miscount and a sloppy study. Worse, though, it provides cover to those responsible for refugee displacement not caused by the United States, placing significant responsibility on America for the millions displaced during the Syrian Civil War, not the Assad regime or Russia.
So it’s only natural that Bashar Ja’afari, Syria’s U.N. ambassador, seized on the report during a meeting this week:
I would like to draw your attention to the report recently published by the British Guardian newspaper, citing research centers and academics in the United States. This report indicates that since 2001, the United States, under its so-called “The War on Terror,” has displaced 37 million people from countries such as Iraq, Afghanistan, Syria, Libya, Yemen, and others. So, who is creating crises in this case? And how can the Security Council maintain international peace and security while the Western Permanent Members make themselves an opponent and a judge at the same time?
Ja’afari is the face of a regime that has operated an industrial mass-slaughter system, defending his government with the aid of a report produced by Brown University and promoted by the New York Times and the Quincy Institute.
David Vine, the study’s author, told The American Conservative that he thinks “a lot of people in the U.S. and elsewhere haven’t reckoned with the full scope of destruction and damage these wars have wrought.” But as an attempt to force U.S. policymakers to re-evaluate their choices, the study is a failure.
There are a number of ways that proponents of a more restrained foreign policy could have attacked the U.S.’s post-9/11 wars. With public opinion on the Global War on Terror souring, they could possibly have made a valuable contribution to the conversation about the costs of war. All it would have taken is a well-designed study with comparably constrained parameters. It wouldn’t have yielded the same ridiculously-high number — but it still would have been an eye-catching figure. Instead, they opted for an ill-conceived political pamphlet intended to expose what Quincy’s executive vice president called “the blob.”
It makes one wonder if the study’s authors regret gifting legitimacy to the Assad regime, or if they see it as a necessity to stick it to the blob. Maybe they just don’t care.
Toward the end of his presidency, George H. W. Bush was caricatured as a wimp — a strange thing for a genuine war hero. But politics is funny that way: First, they tried to paint Bush as a war criminal (strafing Japanese lifeboats) and, when homicidal maniac didn’t work out, he became the nation’s sissy-in-chief, with editorial cartoons depicting him as a little old lady in a gardening hat and pearls. The depiction kind of stuck, for a while, though, of course, today’s progressives would crucify a cartoonist for suggesting that there is something funny about a man in a gardening hat and pearls.
Donald Trump is a distinctive-looking creature in Washington, and also, of course, an intensely hated one. That inevitably is reflected in how he is portrayed in the press. (He is very sensitive about unflattering photographs.) I was thinking about that when I saw the cover of Sara Posner’s book on President Trump and evangelicals, which reminded me of something — about every third photograph of Donald Trump.
The shadowy presence, the just-the-hair lighting, has become a bona fide media cliché.
Etc. I like that Senator Cruz is fully in the darkness there. No half-measures for our man in Texas.
The visual precedents of chiaroscuro Trump are pretty obvious. One is The Apprentice, with Trump’s occasionally shady boardroom scenes:
And, of course, what some of Trump’s bitterest enemies and fiercest admirers both see him as:
Last year, Washington State voters rejected a deceitful effort by the state legislature to reintroduce racial preferences in public employment, education, and contracting. The legislature had claimed that preferences would be implemented “without the use of quotas or preferential treatment (as defined),” but voters who consulted the fine print learned that preferential treatment had been “defined” in a way that made the assurance meaningless.
By contrast, this year’s Proposition 16 in California is refreshingly honest. “Allow Diversity as a Factor in Public Employment, Education, and Contracting Decisions,” reads the ballot title. The official summary is also straightforward:
Permits government decision-making policies to consider race, sex, color, ethnicity, or national origin to address diversity by repealing article I, section 31, of the California Constitution, which was added by Proposition 209 in 1996.
Proposition 209 generally prohibits state and local governments from discriminating against, or granting preferential treatment to, individuals or groups on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, education, or contracting.
California voters will at least know what they are voting on, but that doesn’t make the substance of the proposal any better. Particularly worrisome is Prop 16’s justification for preferences. The word diversity appears in both the title and the summary, but there is no mention of the traditional, time-limited argument for affirmative action, which is to remedy past discrimination. Indeed, the summary is clear that the point of preferences is “to address diversity,” with no further qualifications.
Taking that wording seriously, under Prop 16 racial preferences would be allowed whenever a merit-based selection system would produce a set of government workers, public-school students, or public contractors whose demographic profile does not match the demographic profile of the state overall. The state would not need to identify any past discrimination or historical injustices that cause the imbalance. Any time a group of people are not “diverse” enough, racial preferences could kick in.
The situation is all the more disturbing when we consider the relative sizes of the over- versus under-represented groups. The groups that will tend to be disfavored by Prop 16 are non-Hispanic whites and Asians, but together they constitute only about 53 percent of the state’s population. In effect, Californians will be voting on whether roughly half of their fellow citizens should be put at an official disadvantage for the benefit of the other half.
The white-plus-Asian proportion of the California population is projected to fall below 50 percent within two decades. Will racial preferences still be acceptable then? If so, at one point will they not be? Perhaps when the officially disfavored groups fall to 40 percent? How about 30 percent? For people who do not enjoy contemplating such questions, there is a simple way to avoid it: Reject Prop 16.
Little Montenegro is one of the newest members of NATO. At the time it joined, Trump made some disparaging and stupid remarks about it. And this caused a lot of people who are committed to NATO to stand up and defend Montenegrin membership.
My argument was that Montenegro added almost nothing tangible to the alliance, except liabilities. Its people were too divided over the pro-NATO, pro-EU tilt of their then-current government. That government, led by the Democratic Party of Socialists, had been in power for decades and was widely considered corrupt. It had only narrowly held on in the last election. Russia also had major financial and cultural clout in Montenegro. Religious and historic ties between the two nations are serious.
Grab the fainting couches for our foreign-policy elite.
Just as I mentioned then, NATO was being used for non-military purposes, as a kind of training school for wayward states that could matriculate from NATO membership to the European Union. Well, how are Western foreign-policy leaders responding to what they view as an adverse (though predictable) electoral result in Montenegro? You guessed it: With panicked demands for rushing Montenegro into the European Union in order to stop its ‘backsliding.’
The institutions of the Western alliance need to recognize that there are limits to their project. A sensible search for limits might include evaluating whether there was a significant (or massive) constituency for a pro-Russian government in Montenegro.
Today, I am both happy and sad for the Washington Post. I am happy because they took a step toward truth-telling when Democratic columnist Jennifer Rubin dropped the “conservative” modifier from her Twitter bio. I am sad because they paid an employee to ostensibly write a column about her Twitter bio.
I say ostensibly because really, she just wrote the same column that she has been writing ever since Trump took office. Rubin made the decision to change how she describes herself, she explains, because “there is no conservative movement or party today.” She expressed a similar disdain for those who associate with the Republican Party in this column, and this one, and this one. And this is just a sample of her work since August. Being pro-choice, an opponent of the Second Amendment, and a huge fan of Senator Kamala Harris, Rubin is by no common understanding of the word a “conservative.” Let’s give her credit for finally acknowledging that publicly.
Jennifer Rubin says that she changed her Twitter bio today because she has come to realize that the conservative movement is dead. I suspect that she just needed an excuse to write her weekly screed. This week’s hook didn’t make it any more insightful.
The October 5, 2020, issue — it’s exceptional — is in the mail, and, for those with digital preferences, it’s available pronto on your favorite conservative website. If you have an NRPLUS subscription, the entire affair — including our annual special section on education — can be enjoyed. No NRPLUS membership? If you’ve yet to hit the paywall, you’ll have the opportunity to read some of the contents, hence our following recommendations (but be assured: each and every article, review, column, and item in “The Week” is well worth your attention). We start with Joel Kotkin’s cover essay on how progressivism has failed our big Blue cities (they’re likely to get even bluer), and follow that with acclaimed historian Allen Guelzo’s reflection on the “mystery” of Robert E. Lee (renowned for self-control, he in fact did not always have it). In the education special section, which includes five pieces, consider Stanley Kurtz’s critique of the push for the 1619 curriculum. NR’s beloved “Books, Arts & Manners” section remains a cultural Gibraltar — in this issue you will find James Person Jr.’s excellent review of our former colleague Rod Dreher’s new book, Live Not by Lies (the review leads smack into another David Mamet contribution, with the intriguing title of “Hamlet and Oedipus Meet the Zombies.”) A few pages on is a sweet Richard Brookhiser take on the “commute” to the Big Apple from the upstate apple orchards. We cannot resist one more suggestion: Jay Nordlinger’s warm piece on his visit with the dissident-hero, Natan Sharansky.
You can read it all right now — and have access to many years of NR’s magazine archives, and have access to all “exclusive” pieces we publish each and every day on the NR website when you become an NRPLUS member. Do that right here.
In our increasingly Orwellian world of higher education, there’s a new wrinkle — students being punished because they have posted pictures that our “progressive” thought minders dislike.
In today’s Martin Center article, Zach Greenberg of the Foundation for Individual Rights in Education addresses this absurdity.
Greenberg cites plenty of cases:
For example, just this summer, FIRE criticized Fordham University for punishing a student over an Instagram photo memorializing the Tiananmen Square massacre which featured the student holding a firearm. For this display of political expression, Fordham found the student responsible for violating university policies on “threats/intimidation,” earning the student disciplinary probation and a ban from campus, campus athletics, and leadership roles in student organizations. Fordham also required the student to take bias training and write a letter of apology.
This is all too typical of our higher education “leaders” — instead of defending freedom, they act like apparatchiks in the Soviet Union, demanding that the offender grovel and submit to re-education.
Public institutions are subject to the constraints of the First Amendment and can’t legally restrict their students’ freedom of speech, but many of them ignore the law. They apparently are more concerned about upsetting the social-justice warriors on campus than about lawsuits they might face.
At the end of the day, it is universities, not their students, that have access to billion-dollar endowments, teams of lawyers to interpret the law, and hundreds of administrators to write and apply institutional policies. University leaders need to develop a greater understanding of the limits of their powers to punish students for their expression. We are happy to work with administrators to craft speech-protective policies toward this end.
The 83-year old "is one of two Franciscan priests in #Syria to have died of the coronavirus within 10 days of each other in recent weeks…Fr. Firas Hejazin also died of COVID-19, at the age of 49." https://t.co/4ONTdegc1n
Pennsylvania state law requires mail-in ballots to be received by 8:00 p.m. on Election Day, but the state’s supreme court ruled today that mail ballots postmarked by Election Day and received by the following Friday at 5:00 p.m. must be counted.
Pennsylvania GOP senator Pat Toomey blasted the decision in a statement:
“Once again, the Pennsylvania Supreme Court has decided that laws have no meaning. The current state election statute, which was signed by Governor Wolf less than a year ago, is clear that mail-in ballots must be received by 8:00 PM on Election Day in order to be counted.
“Today’s blatantly political decision to violate the law irresponsibly heightens the risk that our state will experience a lengthy, disputed, and controversial outcome in what is expected to be an extremely close presidential race.”
When the Federal Reserve kept its federal-funds rate target low and engaged in large-scale asset purchases in the aftermath of the Great Recession of 2008-9, some critics, mostly but not exclusively on the right, worried that it was leading the way to a revival of inflation. Since inflation has run below the Fed’s target for almost all of the last decade, that criticism of its efforts has faded somewhat while another one has grown more widespread: that the Fed doesn’t have the power to increase inflation, and so its stimulative efforts are doomed to be ineffective even if they were desirable.
The Fed’s economic projections yesterday, which suggest that it’s going to keep undershooting its inflation target, might be taken to mean that its top officials agree that it is powerless. But Federal Reserve chairman Jay Powell said yesterday that he does not believe the Fed is “out of ammo.” And it is a mistake to read the last decade to mean that the Fed can’t raise inflation to two percent, or beyond. Remember, the Fed tightened money in 2015 and 2016 even while inflation was below its target. That’s not evidence that the Fed couldn’t hit its target; it’s evidence that it had priorities other than making sure that it did.
In a letter to Attorney General William Barr today, Senator Josh Hawley (R., Mo.) asks that the Department of Justice begin filing suits in federal court to bring lawsuits against states and localities that are enforcing what Hawley calls “unconstitutional restrictions” against houses of worship.
As we reported exclusively here at NRO in early June, Hawley sent an initial letter to the DOJ, asking Barr to investigate the disparities between how states were treating ongoing mass protests and the strict regulations they had placed on religious services during the COVID-19 outbreak.
“State officials have violated the free speech and free exercise rights of religious Americans by treating religious gatherings and speech differently than the speech and mass gatherings of protests,” Hawley said in that previous letter.
In his letter today, Hawley urges Barr to “immediately bring lawsuits in federal court to uphold the constitutional right to free exercise and the rights of houses of worship being unjustly shuttered.”
He notes that after six months of the pandemic, “unconstitutional restrictions on religious exercise remain in many parts of the country, despite an ebb in COVID-19 cases and the lessening of other restrictions.”
Hawley points to San Francisco, where churches are still forbidden from conducting religious services indoors and must limit all outdoor services to twelve people. Meanwhile, the city is permitting indoor gyms to reopen. In some parts of Washington State, Hawley writes “churches are subject to a specially burdensome 25 percent capacity limitation, while restaurants and other businesses are allowed up to 50 percent of capacity,” and violators have been subject to fines of up to $100,000.
“The American people have endured six months of closures and restrictions on their houses of worship. Over that period, they have faced countless harms: missed holidays and religious celebrations, canceled weddings, and unattended funerals, to say nothing of the painful absence of regular worship,” the letter concludes. “These continued violations of the First Amendment are outrageous. I ask that the Department file suit against these jurisdictions and others to uphold Americans’ rights.”
Two separate state supreme court rulings in Pennsylvania and Wisconsin this week mean that the Green Party’s presidential candidate will not be on the ballot in either important battleground state.
In a 4–3 decision on Monday, a majority of the Wisconsin supreme court declined to rule on the merits the Wisconsin Election Commission’s decision to deny ballot access, but the majority concluded it was too late to reprint the ballots without causing election chaos.
“Even if we would ultimately determine that the petitioners’ claims are meritorious,” the majority ruled, “given their delay in asserting their rights, we would be unable to provide meaningful relief without completely upsetting the election.”
The Wisconsin Elections Commission had split 3–3 along partisan lines on the matter of denying ballot access to the Green Party because of a technicality — two different addresses were given for the party’s vice presidential nominee, who moved during the pandemic.
On Thursday, Pennsylvania’s supreme court disqualified the Green Party over another technicality — that state filing papers were not submitted in person.
In the 2016 presidential election, Donald Trump carried the state of Pennsylvania by 44,000 votes, and Green Party candidate Jill Stein won 50,000 votes in the state. Trump won by 23,000 votes in Wisconsin, a state where Jill Stein won 31,000 votes. Every potential Green Party vote obviously won’t go to Joe Biden, but keeping the Green Party off the ballot in Wisconsin and Pennsylvania will certainly help Democrats somewhat.
As Yuval Levin notes (here and here), today marks the 233d anniversary of the signing of the Constitution, concluding the secret sessions of the Constitutional Convention at Philadelphia and commencing the process of convincing the American electorate of the day to ratify it in place of the Articles of Confederation (which themselves had only been ratified five and a half years earlier). One might reasonably argue that it is more proper to celebrate June 21, when New Hampshire became the ninth state to ratify the Constitution, making it effective; until then, the opening line was merely aspirational. The Constitution begins by promising: “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” But at Philadelphia, the people had not yet agreed to that.
“We the People” remains one of the most important and powerful parts of the Constitution, and in particular a departure from the Articles of Confederation. The Articles were issued on behalf of “we, the undersigned Delegates of the States,” and was therefore capable of being renegotiated or dissolved by the states — notwithstanding that it, unlike the Constitution, explicitly promised: “we do further solemnly plight and engage the faith of our respective constituents, that . . . the articles . . . shall be inviolably observed by the states we respectively represent, and that the union shall be perpetual.” At least in my faith, a marriage is solemnized with the pronouncement, “What God has joined, no man may separate”; as was settled by blood and arms in 1865 and confirmed by the Supreme Court in 1869, what the people have joined, no state may separate, because the Constitution is a compact among the people and not among the states.
All that being said, the long tenure of our Constitution — the oldest one in continuous use, just as America’s exceptional system is the oldest continuous system of republican and democratic government — owes much of its importance and durability to another crucial fact: The Framers did not merely agree on a system of governmental powers and individual rights, they wrote the rules down. This was a key departure from British practice. Britain in 1787 had a Parliament, and the Magna Carta of 1215, and the Bill of Rights of 1689, but it nowhere had a single rulebook ratified by the people that could not be changed without their consent. The British “Constitution” to this day is a concept rather than a written document, and Parliament has very little constraint in changing it. The British system has evolved so much since 1787 that it is far less recognizable today than the American system of the day: The King controlled many appointments and much national policy, the House of Lords had significant governing powers, and the Commons was not elected in anything even vaguely resembling representative terms or proportions. The system has endured in large part due to the British habit of unspoken agreement, pragmatism, and tradition, but what was truly novel in America was the insistence of the Founding generation that the rules must be written down, and that they must constrain everyone. The entire American concept of constitutionalism can be summarized in four words: “You can’t do that!”
The endurance of written rules in America is ironic. Americans are not, in general, much of a rule-following people. The rebellious streak in American culture runs through 1775, 1836, and 1861, all the way down to 2020 and people not wanting to wear masks and stay in their homes. But then, with one exception, the Constitution’s rules don’t tell citizens what they can’t do; they limit how the government can tell us what to do. And that one exception — the 13th Amendment’s ban on slavery — tells citizens they can’t control what other people can do.
This is why, when I talk about the rule of law in this country, I so often emphasize that it is a rule of written law. “Rule of law” does not mean norms, institutions, formalities, or the involvement of learned professionals; these things may be crucial to protecting the rule of law, but they are not the rule of law itself. This is precisely why I continue to see theories of living constitutionalism, legal realism, and the like — which de-emphasize the paramount role of text in the legitimacy of law, and which constantly evoke the notion that progressive outcomes simply must be constitutional — as the greatest of all threats to the rule of law. If the text itself does not mean “you can’t do that!” — if the text does not continue to mean the same thing until the voters change it — then we do not have the rule of written law at all. We merely have a suggested list of best practices.
Of course, the erosion of the norms, institutions, formalities, and the profession of law are all dangers, too, and raising alarms about them is important and necessary. But if we lose the bedrock idea that the written rules are a stop sign, we lose the whole thing. Writing it down was the point.
Today is Constitution Day, as Yuval Levin has noted in the Corner: 233 years since the Constitution’s authors signed the document (though it still had to be ratified). On the homepage, Levin has a typically astute and clear analysis of how well our polity adheres to the Constitution and to the political architecture it established. The short answer is . . . not very well. As he puts it:
Simply put, we now tend to treat the Constitution as exclusively the business of lawyers and judges, and to think that what’s at stake in our constitutional disputes is ultimately policy — what our government can do about various public problems. This is at best a badly inadequate understanding, and it leaves us with a blinkered constitutionalism that will not serve us well.
As per usual, his entire analysis is worth reading. But one part sticks out to me as particularly relevant. Drawing on a line of thought also present in A Time to Build, his book published earlier this year, Levin argues that, in recent years, too many of our constitutional officers — meaning members of Congress, the president, etc. — have viewed their roles not in terms of how the Constitution designed them, but as platforms for-self promotion. As he puts it:
Too often nowadays, they fail to play their proper parts because they fail to think in these kinds of institutional terms. They don’t understand their jobs in the context of the distinct forms and functions our system assigns them, but in terms of the roles they play in the culture-war theater of our politics, where the goal is not legislative bargaining or executive action or judicial review but performative outrage for a partisan audience.
One such individual is Florida congressman Matt Gaetz — by his own admission. In a profile by Vanity Fair, Gaetz was fairly straightforward about his vanity, and his misconception of his job. Consider some excerpts from the profile. First:
Gaetz, like Trump, sees politics as entertainment: if you can keep the people’s attention, you can keep your power. Or, as he puts it, “Stagecraft is statecraft.”
As society’s attention span abbreviates, Gaetz is angling to expand his 15 minutes. “I grew up in the house Jim Carrey lived in in The Truman Show,” he writes. “I know that all the world’s a stage, especially when we all have cameras with phones.”
“Speaker of the House Paul Ryan once knocked me for going on TV too much, without considering that maybe his own failures as a leader stemmed from spending too much time in think tanks instead of in the green rooms where guests wait to appear on TV, and are thereby connected to the dinnertime of real Americans,” he writes [in a forthcoming book]. “I take his recent elevation to the board of News Corp., the parent company of Fox News, to be his very silent apology. It’s impossible to get canceled if you’re on every channel. Why raise money to advertise on the news channels when I can make the news? And if you aren’t making news, you aren’t governing.”
That last bit bears repeating: “And if you aren’t making news, you aren’t governing.” It is true — though less meaningful than Gaetz believes — that, in a media-saturated society, just about everything will be reported on. And there is even a reasonable case that an essential aspect of being a politician today is a degree of media savvy. (Would that it were not so.) But Gaetz clearly, and with the slick confidence of someone who believes he has things ‘figured out,’ believes that to elevate himself by chasing headlines and TV cameras is more important than doing his job in the way Levin describes.
Gaetz is far from the only politician who thinks this; he says in the profile that Alexandria Ocasio-Cortez, a member of the House from New York, is “more proficient” at this mode of ‘governing’ than he is. (He means this as a compliment.) And for all his faults, Gaetz maintains morsels of possible political integrity, such as in breaking with the president earlier this year on a measure restraining his war powers, a defensible assertion of congressional power against the executive. But his words here, and his conduct elsewhere, mostly suggest at best a counterexample for how a member of Congress ought to view the job.
It was assumed by everyone that Jared’s Middle East mission was a futile joke. But, as I wrote for Politico today, he proved his critics wrong. I also wrote a larger piece on the deal earlier this week on the home page.
The report that Nashville city officials downplayed and hid data which indicate that few of the city’s coronavirus cases could be traced to bars and restaurants, for fears the data would undermine public belief that the restrictions were necessary, represents the equivalent of acid eating away at public trust.
As our Brittany Bernstein covers on the home page, contract tracing determined “construction and nursing homes were found to be causing problems with more than a thousand cases traced to each category, but bars and restaurants reported just 22 cases” at the end of June. The data indicated that Davidson County, which includes Nashville, had 20,000 positive cases at that time.
Nashville began its phased opening in May, and on May 25, restaurants were allowed to open at three-quarters capacity, with bar areas closed. In late June, bars were allowed to reopen at half capacity.
Mayor John Cooper singled out bars as an infection risk in the city, saying they were the source of a “record number of clusters” of new cases this week.Dr. Alex Jahangir, head of the city’s coronavirus task force, said public health workers first detected a trend of bar-related infections last weekend and have since traced at least 30 new infections of Nashville residents across 10 different bars.
(Note this is a novel coronavirus, so it’s not that hard to have “a record number of cases” in any given location.)
Based on what we can see, the mayor reinstated restrictions on bars and restaurants, even though there wasn’t evidence that those establishments were major factors in the increase in cases. Those businesses have every right to be outraged.
This spring, public officials at all levels were thrown into a public-health crisis that made the first SARS, H1N1, Ebola, MERS, and Zika look like small potatoes. It is understandable that mistakes would be made, but officials assured us that their decisions were data-driven and that they were following science (or “SCIENCE!” as Gavin Newsom insists).
When cities and states enacted lockdowns, mostly in March and April, the U.S. had about a million diagnosed cases, concentrated in cities, particularly in the Northeast. Lots of counties in the rest of the country had few or no cases. Enacting a full lockdown in those places — shutting down all nonessential businesses, telling people to stay home, placing restrictions on interstate travel — was an excessive step that burned through a limited supply of public patience. Eight weeks of lockdowns limited the stress on hospitals and bought time, but at extreme economic cost, and that time was largely not put to good use. We would have been better off if restrictions were enacted on a local basis, depending on the prevalence of cases — although our assessment of how many cases were in an area was impeded by the limited number of tests and the difficulty of getting fast results. Some corners of the public will be highly resistant to any attempt to reinstate those restrictions, because they no longer have faith that they’re necessary.
Every restriction enacted on the public comes with an inherent pledge: “We’re doing this because we have to, not because we want to, and because the data support this decision.” Except now we know, at least in this case . . . the data didn’t really point the finger at bars and restaurants at all.