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27 September 20
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Frank Rich | How Far Will Trump Go to Keep the White House?
Frank Rich, New York Magazine
Rich writes: "The unseemly instant replacement of RBG, which is not favored by most Americans, is unlikely to help Republican electoral prospects in general, and could sabotage incumbent senators in tight races."
Most weeks, New York Magazine writer-at-large Frank Rich speaks with contributor Alex Carp about the biggest stories in politics and culture. Today, Trump’s military threat to hold on to the White House, what the Democrats can do about the Supreme Court, and New York’s state coronavirus-vaccine plan.
n comments this week, Donald Trump repeatedly declined to commit to a peaceful transfer of power should he lose the White House, and also stated that a ninth Supreme Court justice is needed to decide the election, telegraphing an intention to take it out of the hands of voters. How seriously should we take these statements?
The possible doomsday scenarios for Election Day — or election week, or month, or months — are so many that we can no longer keep count. You could spend the rest of the day reading up on all the possibilities, from the exploitation of legal loopholes in the Electoral College to the destruction of ballots. Trump knows he’s losing as of now and will gladly provoke a constitutional crisis to delegitimize or steal the election, sow chaos, and delay or challenge any count not going his way. And he has teams of Republican lawyers and state lawmakers, not to mention the Attorney General, to do his bidding. He has also vowed to send law-enforcement officers to polling places in battleground states, no doubt to intimidate the voters he wants to suppress.
Next to those concrete actions, his statements casting doubt on our sacrosanct tradition of a peaceful transition of power might seem like his usual made-for-cable-news bluster — hyperbolic theatrics designed to distract from the real subterfuge at hand. The only flaw in that argument is that it will not be Trump who decides whether there will be a peaceful transition or not; it will be his troops. By troops I don’t mean the American military, which is unlikely to bear arms to support any Trump effort to cling to the White House in defeat, but Trump’s own troops, who have formed a rogue military of their own. His language has already given them the signal to do whatever the hell they want.
Those troops are exemplified by Michigan United for Liberty, the right-wing extremist cell that posted violent threats against state officials on highly trafficked private Facebook pages in response to pandemic health measures and then turned up with assault weapons in the Senate balcony in Lansing as legislators (some donning bulletproof vests) gathered below. They include the likes of right-wing militia wannabes like Kyle Rittenhouse, whose killing of two protesters in Kenosha, Wisconsin, was condoned by Trump. They include the armed cohort who showed up to “provide security” in Louisville after the grand jury rendered its verdict on the Breonna Taylor murder.
The violent actors on the left that Trump rails about also exist, but in relatively tiny numbers. A June report from the Center for Strategic and International Studies on “The Escalating Terrorism Problem in the United States” finds that “right-wing extremists perpetrated two-thirds of the attacks and plots in the United States in 2019 and over 90 percent between January 1 and May 8, 2020.” They are locked and loaded to mount a violent response to a Trump defeat whether the president explicitly invites them to or not.
The Vichy Republicans in Washington, meanwhile, will be hiding under the desks. While some of them have come out in favor of a peaceful transfer of power in the wake of Trump’s threats, none of them had the guts to criticize him by name. They are all very concerned in the patented manner of Susan Collins. It was rather remarkable to watch Lindsey Graham tell the audience at Fox & Friends that he “can assure” a peaceful denouement to the election during the same week when the worthlessness of his word on late-term Supreme Court nominees was on constant display in campaign ads across the land.
With Mitt Romney’s support, Mitch McConnell appears confident that he has enough Republican senators lined up to quickly confirm the next Supreme Court justice, despite the fact that no nominee has yet been named. Is there anything the Democrats can do?
Beyond speechifying and modest delay tactics, there is nothing the Democrats can do to stop this confirmation. Senate Republicans don’t even care who the nominee is.
My wish, unlikely to be honored, is for the Democrats to let the GOP ramrod the nominee through the process as quickly as possible to make sure the dirty deed is done before the election. The unseemly instant replacement of RBG, which is not favored by most Americans, is unlikely to help Republican electoral prospects in general, and could sabotage incumbent senators in tight races. An internal GOP poll of battleground states conducted last weekend, as reported by the Washington Post, found that 28 percent were more likely to vote for Trump if a nominee were confirmed by the election, and 38 percent less likely to. Other polls over the past year have consistently found that overturning Roe v. Wade, a strong possibility for a Trump Court, is even less popular nationally than Trump himself. As recently as June, a CBS News survey found that only 29 percent wanted to overturn Roe, while 63 percent wanted it to stay in place. Writing in the Cook Political Report, David Wasserman crunched the numbers of a YouGov poll in 2016 and found that variously 20 to 25 percent of Trump voters in the battleground states of Florida, Iowa, Michigan, Pennsylvania, Arizona, Ohio, and Wisconsin were pro-choice.
As is the case now, there was much bravura talk among Republicans about how the Brett Kavanaugh battle would be a political plus in the 2018 midterms, which followed Kavanaugh’s confirmation by a month. In reality, its effect was close to nil. The Democrats retook the House by a landslide. In the Senate races, three GOP candidates won in red states (Missouri, Indiana, and North Dakota), but five GOP candidates lost in states Trump had won two years earlier (Montana, Ohio, Pennsylvania, Michigan, and Wisconsin). The campaign of Martha McSally, who lost her Senate race in Arizona, even released a memo blaming her defeat partly on the Kavanaugh confirmation.
McSally, who was subsequently appointed to fill out John McCain’s Senate term after his death, is blindly rallying behind Trump and McConnell’s Supreme Court gambit regardless — never mind that polls consistently show her well behind in her reelection bid. And other shaky Republican incumbents may go down with her. It’s a lose-lose situation for Collins in blue Maine, Cory Gardner in blue Colorado, and Thom Tillis in purple North Carolina. If they don’t vote for the nominee, Trump will trash them and depress their vote among the GOP base. If they do vote to confirm, they lose more of the moderate voters who are already defecting. What none of them seem to realize is that Trump doesn’t give a damn if they all go down as long as he holds on to the White House: He plans to “govern” through the courts and executive orders, not Congress, in his second term, much as he has tried to in the first.
The possibility that somehow Trump’s nominee might not be confirmed if the process drifts past the election into a lame-duck Senate session is faint. Better to accept reality quickly rather than let Trump continue to milk the confirmation battle to distract from his catastrophic failure to stand up to the coronavirus in the final weeks of the campaign. The Democrats have more to gain by enhancing their chances to win back a Senate majority that will start to reverse the damage Trump has done to the courts and every other institution in the country.
Andrew Cuomo has announced that New York State will review any coronavirus vaccine approved by the federal government before distributing it in the state, and that he doesn’t “trust the federal government’s opinion.” Is this a step in the right direction?
For sure. Trump and his flunkies have destroyed the credibility of the CDC and are poised to do the same for the FDA. Public confidence in a vaccine has already fallen from 72 percent to 51 percent over the course of the pandemic. By appointing a panel of scientists to vouch for the safety and efficacy of a vaccine, Cuomo will help restore the trust that is essential to public health. And the New York State process will have outsize clout nationwide, even internationally, given the likelihood that a rejected vaccine would create legal and economic havoc for its Big Pharma producer. Other governors are likely to mimic the New York plan to vouch for a vaccine as well.
Cuomo’s action — much like his effort to coordinate the response to the virus among neighboring states — also offers a paradigm of how governing might work in the event Trump is reelected. As Trump told the states they were on their own in dealing with the pandemic, states will increasingly go their own way on many other matters in a second term, court battles notwithstanding. Like New York, California, which outlined new zero-emission standards for passenger cars last week, isn’t waiting. Such actions are no substitute for an honest and competent federal government, but it is, at least, a relatively peaceful way for the anti-Trump states of America to conduct a civil war.
Amy Coney Barrett. (photo: Matt Cashore/Notre Dame University/Reuters)
Amy Coney Barrett: What Will She Mean for Women's Rights?
Alexandra Villarreal, Guardian UK
Villarreal writes: "Ruth Bader Ginsburg was revered, a pioneering champion of gender equality. But her potential replacement on the supreme court threatens a systematic unraveling of hard-won rights that have given American women some semblance of autonomy and control."
READ MORE
Mitch McConnell. (photo: Mark Wilson/Getty Image)
It's Dangerous When the Minority Party Rules Everyone Else
Seth Masket, The Washington Post
Masket writes: "Our nation is moving even deeper into minority rule: The House aside, the U.S. government is controlled by the less popular party in a polarized two-party system. We may call this unfair, but that would trivialize the problem."
READ MORE
Gwen Carr, mother of Eric Garner, in New York last year. (photo: Eduardo Munoz/Reuters)
New York Supreme Court Judge Orders Judicial Review of Eric Garner Case
Dennis Romero, NBC News
Romero writes: "Judge Joan Madden on Thursday ordered a 'summary inquiry' into the case, including an alleged lack of immediate medical aid to Garner by officers; alleged lies in a police report; the unauthorized release of Garner's arrest record; and release of autopsy information by New York City's Office of Chief Medical Examiner."
He died while in an apparent chokehold by a New York police officer in 2014. He said, "I can't breathe."
New York Supreme Court judge on Thursday ordered a public judicial inquiry into the case of Eric Garner, the 43-year-old who died after being put in an apparent chokehold by a New York police officer in 2014.
She did not indicate who would conduct the inquiry or when it would take place. She set a hearing on the matter for Oct. 6.
The group Communities United for Police Reform called the ruling a "major win for transparency and basic civil rights."
The organization said in a statement that the decision could allow for Mayor Bill de Blasio, former New York Police Department Commissioner James O’Neill and others "to take the stand and answer to claims of neglect and the violations of duty related to the killing of Eric Garner."
The ruling is part of civil litigation against city officials by Garner's mother, Gwen Carr, and sister, Ellisha Flagg. They were awarded $5.9 million in a 2015 settlement with the city.
A Staten Island grand jury in late 2014 declined to indict Officer Daniel Pantaleo on criminal charges related to Garner's death. Pantaleo has denied any wrongdoing but was fired last year.
The New York City Police Benevolent Association could not be reached for comment Friday but its president, Pat Lynch, has maintained that Pantaleo and partner Justin Damico did nothing wrong when they confronted Garner on July 17, 2014, for allegedly selling loose cigarettes illegally in Staten Island and took him to the ground.
While he was on the ground, Garner said, "I can't breathe," words echoed by George Floyd, a Black man who died in Minneapolis police custody in May. Floyd's death and the fatal police shooting in March of Breonna Taylor, a Black woman, at her home in Louisville, Kentucky, prompted nationwide protests and demands for police reform and racial justice.
Lynch said last year that Pantaleo and Damico "utilized textbook de-escalation techniques to limit the use of force against a much larger and irate individual." Neither officer could be reached for comment Friday evening.
A city medical examiner ruled Garner's death a homicide by asphyxiation, likely from a chokehold. The New York Police Department banned chokeholds in 1993.
The Office of Chief Medical Examiner did not respond immediately to a request for comment Friday. New York Police Department Sgt. Jessica McRorie said by email that "the New York City Police Department is reviewing the determination by the State Supreme court."
Madden said in her ruling that there was "no indication" police administered aid to Garner after he fell unconscious. She called an alleged lack of investigation by the police commissioner "neglect of duty."
She also suggested Damico lied in claiming in a police report that Garner committed a felony for selling loose cigarettes, although the amount in his possession would not have supported such a charge.
She rejected a request by Carr and Flagg for an inquiry into the actions of medical first-responders.
'I want violent individuals thinking about the enhanced penalties they may face if they harm a Portland Police Bureau officer,' Ore
Portland Cops to Be Deputized as Federal Officers Ahead of Proud Boys Rally
Maxine Bernstein, The Oregonian
Bernstein writes: "About 50 Portland police officers assigned to the Police Bureau's specialized crowd control Rapid Response Teams will be deputized as federal marshals for Saturday's law enforcement response to rallies planned by the far-right group Proud Boys and left-wing counter-demonstrators."
Oregon State Police Supt. Travis Hampton, who was tapped by the governor to lead the police response with Multnomah County Sheriff Mike Reese under an emergency executive order, asked that the U.S. Marshals Service grant the Portland police officers in the special squad the federal powers.
“Portland officers have been serving on the front lines of nightly protests for months, sustaining injuries and encountering unspeakable violence,” Hampton told The Oregonian/OregonLive. “If I am to send them into harm’s way this weekend, on my authority, I’m going to ensure they have all the protections and authority of OSP troopers.”
The U.S. Marshals Service will deputize the officers early Saturday morning before the simultaneous noon rallies in North Portland. The action will allow federal prosecutors to bring allegations of assault on a federal officer, if the deputized Portland police officers face attacks from any demonstrators, including the throwing of fireworks, rocks, bottles or other objects at them.
Federal offenses typically carry a stiffer sentence.
“I want violent individuals thinking about the enhanced penalties they may face if they harm a Portland Police Bureau officer,” Hampton said.
Portland’s Rapid Response Teams are the riot-clad officers armed with impact munitions who are typically called in to disperse crowds once a riot or unlawful assembly has been declared.
About 50 members of the Oregon State Police mobile field force, the state agency’s crowd control squad, were deputized as federal officers earlier this summer when Gov. Kate Brown sent in state police on July 30 to take over security of the exterior of the Mark O. Hatfield United States Courthouse for two weeks. The move allowed squads of federal officers to retreat into the courthouse, and state troopers to respond to any problems outside the courthouse or in the streets around it.
The federal courthouse had become a focal point of demonstrations that often devolved into violence at night. By then, the number of people demonstrating had swelled, demanding that an extra contingent of federal officers sent to Portland to secure the courthouse go home.
The downtown protest scene typically devolved late at night as some protesters lobbed fireworks, bottles and cans at the courthouse and federal officers, shined lasers in officers’ eyes and tried to dismantle a reinforced fence outside. Federal tactical officers, many dressed in camouflage fatigues, responded with aggressive force, firing tear gas and impact munitions into the crowds and pushing people several blocks away.
The deputized Portland police and state troopers will continue to make arrests on state charges.
Those cases are then reviewed by the U.S. Attorney’s Office, and federal prosecutors determine with officers if any cases warrant federal charges, according to federal prosecutors. The deputizing of officers as special deputy U.S. Marshals lasts for one year. It’s unclear whether that will be terminated after this weekend or not.
Since late May, federal prosecutors have accused 40 people of assaulting a federal officer, 21 people of failing to comply with federal orders, 11 people of federal civil disorder, four of federal arson or attempted arson, four of creating a disturbance on federal property, four of destruction of federal government property and one of violating national defense airspace through the use of a drone, according to the U.S. Attorney’s office.
“Already limited public safety resources are fatigued and stretched thin. Our community deserves an end to the violence. Together, we need to call out violent agitators on the right and the left and stand up for civility,” Oregon’s U.S. Attorney Billy J. Williams said in a statement Friday.
“Local residents and anyone traveling to Portland with the intent to commit violence are on notice. There will be consequences for acts of violence,” he said. “Make no mistake: those who commit violence in the name of protest, will be investigated, arrested, prosecuted, and face prison time.”
Sunday Song: Neil Young | Rockin' In The Free World
Neil Young, YouTube
Young writes: "Colors on the street. Red, white, and blue. People shuffling their feet. People sleeping in their shoes."
Colors on the street
Red, white, and blue
People shuffling their feet
People sleeping in their shoes
There's a warning sign in the road ahead
There's a lot of people saying we'd be better off dead
Don't feel like Satan but I am to them
So I try forget them any way I can
Keep on rocking in the free world
Keep on rocking in the free world
Keep on rocking in the free world
Keep on rocking in the free world
I see a girl in the night with a baby in her hands
Under an old street light near a garbage can
Now she put her kid away, she's gone to get a hit
She hates her life, and what she's done with it
That's one more kid, that'll never go to school
Never get to fall in love, never get to be cool
Keep on rocking in the free world
Keep on rocking in the free world
Keep on rocking in the free world
Keep on rocking in the free world
There's a thousand points of light for the homeless man
There's a kinder, gentler machine gun hand
There's department stores, and toilet paper Styrofoam garbage for the Ozone layer
There's a man of the people, says people alive
Got fuel to burn, got roads to drive
Keep on rocking in the free world
Keep on rocking in the free world
Keep on rocking in the free world
Keep on rocking in the free world
SCOTUS. (image: Grist/Fred Schilling/SCOTUS
Why Amy Coney Barrett on the Supreme Court Would Be a Climate Disaster
Shannon Osaka, Grist
Osaka writes: "When Supreme Court Justice Ruth Bader Ginsburg passed away a week ago, commentators were quick to lament the implications of her empty Supreme Court seat for abortion rights and gender equality. But there's another concern: our overheating planet."
On Saturday, Trump is expected to nominate Seventh Circuit Judge Amy Coney Barrett for Ginsburg’s old spot. And some worry that a 6-3 conservative supermajority might mean that any policy to protect our planet from climate change will be struck down — before it even gets started.
“Environmentalists are facing a real minefield ahead,” said Robert Percival, director of the environmental law program at the University of Maryland. “I have just been so depressed.”
First, some facts: The Supreme Court can’t just go around striking down legislation and a president’s executive orders left and right, but the court can make it much more difficult to implement laws or limit greenhouse gas emissions — by interpreting law narrowly, refusing to defer to agencies like the Environmental Protection Agency, and otherwise restricting presidential and Congressional power. And now, with the potential for more conservative justices on the court than anytime in recent history, the odds that government actions survive Supreme Court scrutiny appear lower than ever.
Barrett is a staunch conservative and popular on the religious right. Not much is known about her environmental record, but if she follows in the footsteps of Trump’s earlier appointments, she would join the conservative wing of the court in undermining existing environmental laws and blocking others.
Here are two ways a super-conservative court with Barrett could sideline climate progress. And one potential path to success.
No standing in court
One of the most important issues in environmental law is whether groups — cities, states, and even young children — have the right to sue the government to take action on climate change. To have “standing” to sue, plaintiffs have to be able to prove a) that they have suffered some sort of harm; b) that injury is traceable to the action (or inaction) of the defendant; and c) that the result of the lawsuit would somehow rectify the damage done.
That poses a few problems for taking on the giant, global problem of climate change. A court tilted so far to the right might say that since climate change affects everyone, and global CO2 emissions are hard to track and trace to particular defendants, a single state or city doesn’t have standing to sue. Moreover, since no single action can truly “solve” climate change, conservative justices could argue that any lawsuit wouldn’t rectify the harm caused — again, demolishing plaintiffs’ standing.
“I call it the Goldilocks theory of standing,” said Percival. “If the harms aren’t big enough, then you can’t sue; but if the harms are so big, then you can’t sue because it affects everyone!”
Some justices on the court, like John Roberts and Clarence Thomas, are already skeptical of whether groups have the right to sue the government over climate change. In Massachusetts v. EPA, a 2007 Supreme Court case in which 12 states and several cities called on the agency to regulate greenhouse gas emissions, a 5-4 majority found that the plaintiffs did have standing — but only one of the justices in that majority is still serving on the court. Chief Justice John Roberts, currently the Court’s swing vote, wrote a scathing dissent, arguing that global warming was “harmful to humanity at large” and that EPA regulation of greenhouse gases was unlikely to make a dent in the problem.
If Barrett and other conservative justices follow in Roberts’ footsteps, the outcome could be catastrophic. “Litigation brought by states and by environmental groups is very important — for instance, in holding Trump’s feet to the fire,” said Michael Gerrard, a professor of law at Columbia University. If these groups don’t have the right to sue, then a hostile White House could gut more environmental laws and continue to ignore climate change — with nothing standing in its way.
Blocking executive action
Back in 2014, foiled by Congress in his attempts to pass a sweeping climate change law, President Barack Obama turned to the EPA. The agency proposed the Clean Power Plan, which would have cut greenhouse gas emissions from the country’s power plants by 30 percent in 15 years.
It should have worked: The EPA’s right to regulate greenhouse gas emissions had been confirmed in Massachusetts v. EPA. But the Clean Power Plan got held up in the courts, as over two dozen (mostly red) states sued to block it. The Supreme Court, in a highly unusual move, supported those states — halting the enforcement of the plan while the lawsuit worked its way through the courts, and effectively hamstringing the regulation until the end of President Obama’s term. (President Trump later replaced the rule entirely.)
A super-conservative court with Barrett on board would likely give any executive action to take on climate change similar treatment, ruling that large-scale regulations on greenhouse gas emissions is a step too far under the EPA’s authority. That could pose a huge problem for the Democrat’s presidential nominee, Joe Biden, who has promised to make the climate a centerpiece of his term if elected. Biden has pledged to get America’s electricity grid running purely on clean energy by 2035 — basically triple the ambition of Obama’s plan. If Democrats don’t take control of the Senate (a toss-up at the moment), he would have to try to muscle regulation through the EPA. And that probably wouldn’t end well.
It’s up to Congress
There’s at least one path to sweeping, Green New Deal-esque climate action. The best-case scenario for climate action starts with Congress actually passing a bill, Gerrard said. “Most of the litigation about climate change law that gets to the Supreme Court is on interpreting ambiguous statutes,” he said. But if Congress and the president adopt climate legislation — and leave little room for interpretation — that won’t leave much space for the Supreme Court to strike it down.
Even that comes with caveats. According to Percival there’s a growing movement among conservative justices for expanding what is known as the “non-delegation doctrine,” in which laws can be struck down if they seem to hand too much power to executive agencies. That means that if, say, Congress passes a law regulating greenhouse gas emissions — but leaves it up to the EPA to parse out some of the details — the court could quash it. “You could see the court basically striking down some major environmental statutes,” Percival said.
So if the Biden administration gets a clean energy law through Congress, it would have to be extremely detailed and avoid leaving too much for agencies to decide; otherwise, it likely wouldn’t survive a challenge that winds up in front of the Supreme Court.
Gerrard is still hopeful that, given the right conditions, legislation that passes the Senate and the House could hold up even under superconservative court scrutiny. “If the laws are clear and unambiguous and specific enough,” he said, “Congress ties the hands of the courts.”
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