Middleboro Review 2: 08/10/22

Wednesday, August 10, 2022

POLITICO NIGHTLY: GOP midterm hurricane gets downgraded

With help from Joseph Spector

STARTED FROM THE BOTTOM — It’s hard to believe, given how poorly things have been going for Democrats this year. But the midterm election landscape is suddenly looking a lot less grim.

Democrats recently inched ahead of Republicans on the generic ballot , a leading indicator of midterm performance. Kansas demonstrated the salience of Roe v. Wade . And on Tuesday night, a Minnesota special election became the second consecutive contest to suggest Democratic candidates may be better positioned to compete in November than once expected.

“In general, I’m feeling a lot different about Democratic prospects today, on Aug. 10, than I was on May 1,” John Anzalone, the longtime Biden pollster, told Nightly.

In the Minnesota House race, Republican Brad Finstad beat his Democratic opponent in a Republican-leaning district by about 4 percentage points — less than half the margin that Donald Trump beat Joe Biden by in the district in 2020. The Democratic overperformance mirrored the outcome in a Nebraska special election in June .

And that’s not the only promising sign for Democrats. There’s the Supreme Court’s overturning of Roe, which prompted a surge in turnout in Kansas and the rejection of an anti-abortion measure last week. Biden is poised to sign a major tax, health care and climate change bill . Gas prices are falling , and inflation — though still high — appeared today to be cooling off .

Then there’s the help Democrats keep getting from Trump. For his own political future, the FBI search at Mar-a-Lago on Monday will almost certainly go down as a positive. Republicans who had been considering challenging Trump for the presidential nomination in 2024 are now having serious second thoughts — or hanging it up altogether .

But for Democrats running in the midterm elections, especially in swing districts and states Trump lost in 2020, the renewed focus on the former president is good news.

“Anything that takes away from the focus on what’s going on in Washington with the Democrats and Joe Biden over the next few months is not going to be helpful to Republican causes,” said Mark Graul, a Republican strategist in Wisconsin who oversaw George W. Bush’s 2004 campaign in the state.

John Fetterman at a meet and greet. | Michael M. Santiago/Getty Images

In Pennsylvania, Trump’s endorsed U.S. Senate candidate, Mehmet Oz, is starting to look like a disaster for the GOP , while Republican Senate challengers in Georgia, Arizona and Nevada are polling behind Democratic incumbents. Doug Mastriano, Trump’s pick for governor in Pennsylvania, may be more competitive than Democrats anticipated, but he is still lagging behind his Democratic opponent there.

In recent days, Republican political professionals have privately expressed concerns that the GOP may have done too little to manage expectations for November, fearful anything less than a blowout will be perceived as Republican failure. Democrats, meanwhile, have some bounce in their step heading into an election in which they were widely expected to sustain devastating losses.

How much better could it be for them in November?

“The headwinds are still substantial,” David Axelrod, the former Barack Obama adviser, said in an email. “The probability of [Republicans] taking the House is still high, but not by the margins once predicted.”

Biden’s job approval rating, despite ticking up marginally in recent weeks, is still dismal, after all.

Still, Democrats “seem to be somewhat defying that gravity for now, as the [Republicans] come into sharper focus and it becomes a little less of a referendum” on Biden, Axelrod said.

“So, what looked like a Category 5 storm and total devastation a few weeks ago,” he said, “may be more of Category 3 today.”

Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at dsiders@politico.com or on Twitter at @davidsiders .

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WHAT'D I MISS?

— DOJ charges alleged Iranian operative in plot to assassinate Bolton: The Justice Department today announced charges against an alleged Iranian operative accused of plotting to kill former Trump administration national security adviser John Bolton. Shahram Poursafi, also known as Mehdi Rezayi, allegedly conspired between October of 2021 and April of this year to kill Bolton according to a criminal complaint released by the Department of Justice.

— Buttigieg promises action on airline delays: Transportation Secretary Pete Buttigieg said today that his agency is ready to take enforcement actions against airlines that don’t perform , as flight delays and cancellations continue to roil the busy summer travel season. DOT under Buttigieg has proposed a series of rules intended to better protect airline consumers, the most substantial of which, announced last week, would strengthen protections for airline passengers who want a cash refund after a flight is canceled.

— Pelosi denies military opposed Taiwan trip: Speaker Nancy Pelosi said today that the U.S. military never told her not to travel to Taiwan, defending her historic visit amid China’s hostile response and the Biden administration’s warnings . A longtime China hawk dating back to the Tiananmen Square massacre, Pelosi told reporters today that Beijing used her trip to Taiwan last week as a “pretext” for its stepped-up aggression toward the self-governing island, including live-fire military drills conducted over the past week. “I don’t remember them ever telling us not to go,” Pelosi said of the U.S. military. “We are very proud of our military. Their preparation actually, I think, minimized the impact of the Chinese on our trip.”

— White House solicits ideas on student debt relief as Biden’s decision looms: White House officials plan to meet this week with student debt activists and advocacy groups ahead of Biden’s self-imposed deadline of Aug. 31 for deciding whether to approve broad-based debt relief for millions of Americans . The virtual meeting, scheduled for Thursday, is the latest sign that the White House is seriously considering canceling some amount of student loan debt. A range of outside groups working on student loan cancellation were invited to participate in the event. The White House described the meeting as “an opportunity for you to share your priorities on student debt relief,” according to a copy of the invitation obtained by POLITICO.

— Bottling the monkeypox vaccine could take until early 2023: The Biden administration is in talks with multiple companies about bottling millions of new doses of the monkeypox shot , but it could take three to six months to get them ready for distribution, according to two senior administration officials and two other people with knowledge of the matter, because American regulators will likely have to first inspect the doses.

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AROUND THE WORLD

ON OFFENSE — Blasts that rocked a Russian military airfield in forcibly annexed Crimea signal the start of Ukraine’s counteroffensive in the south and a critical new phase of the war that could shape its ultimate outcome, two Ukrainian officials told POLITICO.

The series of explosions Tuesday sent huge fireballs and mushroom clouds of black smoke into the sky, scattering terrified Russian vacationers who were seen in videos shared on social media scrambling for safety on a beach and fleeing by car over the Crimea bridge to Russia, writes Christopher Miller .

Two Ukrainian officials who spoke to POLITICO suggested more directly that Kyiv was behind the explosions. While Ukrainian forces have in recent weeks been pushing to claw back ground toward the southern city of Kherson — which fell to the Russians in the early days of the invasion — the two officials said the explosions at the airfield indicated that this counterattack was now beginning in earnest.

A successful strike against a military target far behind Russian lines, and especially on the Crimean Peninsula, a place of great significance to the Kremlin that has largely avoided the intense fighting taking place on Ukraine’s mainland, would be deeply embarrassing for President Vladimir Putin who would likely view it as a dramatic escalation and a blow to his troops’ morale.

NIGHTLY NUMBER

8.5 percent

The percentage July inflation climbed over the past year, a slightly slower pace than previous months due to sinking gas and energy prices, according to the Bureau of Labor Statistics . As our chief economic correspondent Ben White noted on Twitter , this figure is down from the 9.1 percent June figure but still “SUPER high by historical standards.”

PARTING WORDS

FACE TO FACE — Former President Donald Trump took the Fifth today, declining to answer questions from New York Attorney General Tish James’ team in a deposition related to her probe of his family’s real estate business. The two have been at odds, to say the least, for years, dating back to her 2018 campaign when James vowed to run an aggressive office against the native New Yorker, Joseph Spector emailed Nightly.

Trump has claimed political bias as the Democrat seeking a second term this fall has pursued a case that Trump and his company inflated real estate values in New York to land lucrative tax breaks and loans.

But after a judge declined to throw out James’ case based on Trump’s claim that she had a political ax to grind, today Trump came to her office for a deposition in the case , another extraordinary moment for the ex-president.

They were face to face, with James’ office saying she was there for the questioning, which lasted from about 9 a.m. to around 3 p.m.

But Trump, facing a bevy of federal and state probes, pleaded his Fifth Amendment rights, he said and James’ office confirmed.

Experts said that for Trump it may have been the right legal move: anything he said could hurt him in this case and others just days after the FBI searched Mar-a-Lago in Florida.

“I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’ Now I know the answer to that question,” Trump said in a statement just moments after he was spotted by a crowd of reporters and onlookers in the morning with his security detail leaving Trump Tower in midtown Manhattan toward James’ office nearby.

“When your family, your company, and all the people in your orbit have become the targets of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors, and the Fake News Media, you have no choice.”

The sit-down was long in the making for James, who has staked much of her reputation as a prosecutor and public servant on taking down Trump. She jumped into the race for governor last year on the merits of both her aggressive stance against Trump and her lengthy report detailing sexual harassment from former Gov. Andrew Cuomo. And though her campaign for governor was short-lived — she eventually opted instead to run for reelection as AG — the Trump case remains at the top of her docket.

Observers said that Trump’s sit-down with James suggests the probe is in its final stages. And remember, this is a civil case, not a criminal one, that could end with a jury deciding whether Trump should face any monetary penalties.

James vowed her case will continue — and assuredly that will come with Trump’s ongoing criticism of her as a “racist district attorney,” as he recently claimed.

“Attorney General Letitia James took part in the deposition during which Mr. Trump invoked his Fifth Amendment right against self-incrimination,” her spokesperson said. “Attorney General James will pursue the facts and the law wherever they may lead. Our investigation continues.”

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RSN: FOCUS: We Have the Tools to Defeat the Supreme Court. All We Need Is the Will.

10 August 22

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FOCUS: We Have the Tools to Defeat the Supreme Court. All We Need Is the Will.
David Renton, Jacobin
Renton writes: "The Supreme Court’s ultraconservative majority is determined to block progressive reforms."

The Supreme Court’s ultraconservative majority is determined to block progressive reforms. Abraham Lincoln and Franklin Roosevelt both faced a similar problem, and the way they tackled it shows that there’s no reason to let judges strangle democracy.

In the aftermath of the Supreme Court’s decision to overturn Roe v. Wade, New York congresswomen Alexandria Ocasio-Cortez called for Supreme Court justices Brett Kavanaugh and Neil Gorsuch to be impeached. Both, she said, had lied at the hearings that led to their appointment.

Gorsuch in particular told senators in 2017 that Roe v. Wade was a “precedent of the United States Supreme Court” and that he would have refused to put himself forward for judicial office if politicians like Donald Trump had asked him to overturn it. In June 2022, he added his voice to the five-judge majority that overturned the “precedent.”

AOC was facing up to a question that everyone should be considering. Assuming that socialists and radicals mean what we have said about the necessity of securing women’s freedom over their bodies, what can be done to break the Republican Supreme Court majority?

Louis Boudin and the Rise of Judicial Power

Throughout the history of the United States, radicals and socialists have repeatedly been forced to address this very question. Probably the most systematic attempt at answering it came in the writings of Louis Boudin, a socialist lawyer and author of Government by Judiciary (1932). The book was a sustained polemic against the Supreme Court and the way its constitutional role had been interpreted.

Over more than a thousand pages of careful study of the court’s judgments, Boudin pursued the argument that the Supreme Court was the most destructive force within American public life, guaranteeing the dominance of conservative politics:

Our judges declare unconstitutional what they consider unwise or unjust or inexpedient — being guided almost exclusively by their philosophical, political, social and economic beliefs, and little or not by constitutional texts.

Key to Boudin’s argument were the nineteenth-century decisions of the court in upholding slavery, resisting the Republic during the Civil War, and sabotaging Reconstruction. The best known of these pro-slavery decisions was Dred Scott v. Sandford (1857) which found that people of African descent, whether slaves or free, could not enjoy the privileges of the Constitution.

Government by the Supreme Court, Boudin wrote, meant “government by a few Conservative men.” He argued that the hegemony of the Supreme Court over the other institutions of American life was not obvious from anything written in the Constitution. Members of the court had needed to create this principle retrospectively and at a late stage.

It was not until the decision in Dred Scott that judges felt powerful enough to declare laws made by Congress unconstitutional. Elected lawmakers criticized the court for overstepping its limits into areas — the day-to-day governing of the country — from which its reach had always previously been excluded.

Standing for the Senate in 1858, two years before he was elected to the presidency, Abraham Lincoln promised to “do what we can to have the court decide the other way.” The measures chosen by Lincoln to defeat the court included the appointments of three justices to the Supreme Court in 1862, with a fourth the following year and a fifth in 1864. The most radical of these appointments was that of the fourth justice, Stephen Field.

At the same time, Congress passed a Tenth Circuit Act of 1863, expanding the size of the court to ten justices. With Lincoln’s appointments and the passage of the 1863 Act, the previous pro-slavery majority was broken.

Roosevelt’s Threat of a Larger Court

The issue of the court’s size has never gone away. Although the Judiciary Act of 1869 fixed the size of the Supreme Court at nine judges, this act is of no great legal standing. The Congress of the day made it, and today’s Congress could just as easily choose to increase the size of the court at any time. The last occasion in US history that such a measure was seriously proposed was in 1937, when President Franklin Roosevelt brought forward a Judicial Procedures Reform Bill.

The Supreme Court had struck down a series of New Deal reform measures. For example, it held that the Railroad Retirement Act was unlawful because it frustrated “interstate commerce” by promising a pension for every railworker. According to the court, the rules of the market dictated that any new business ought to be able to pay its workers less than its rivals. From this perspective, any breach of market principle was also a breach of the US Constitution.

Roosevelt responded by stating that the Supreme Court was almost unique in comparison to federal courts for allowing justices to remain in judicial office past any retirement age. Government by a gerontocracy, he warned, meant government by people with no interest in or understanding of the great social questions of the day.

In an address to the nation, Roosevelt set out what he was proposing:

Whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate.

Less than a month after Roosevelt’s address, the Supreme Court had to address the question of whether a federal minimum-wage law was constitutional. The Court approved the law by a five-four majority and ruled thereafter in favor of New Deal laws.

Removing the Bad Apple

Socialists outside the United States have also had to address similar issues of judicial overreach. The best-known judge in the Britain of the late 1970s and early 1980s was Lord Tom Denning, the “Master of the Rolls” (in other words, the leading judge in our Court of Appeal). He became notorious for his outspoken conservative views.

Denning described gay men as “promiscuous, exhibitionist.” Prisoners, he held, could not sue their jailers, while no judge should challenge the decisions of ministers to deport foreigners. No woman teacher who had “invited a man to her room” ought to remain in her post, according to Denning.

In Britain, as in the United States, no judge could be removed from political office on the grounds of their opinions. As late as 1959, the UK also lacked a judicial retirement age. Denning, having been appointed prior to that law, was exempt from it.

At its 1979 annual general meeting, which coincided with Denning’s eightieth birthday, the Haldane Society of Socialist Lawyers passed a resolution calling for Denning’s resignation. The Haldane Society was denounced for this vote: lampooned by the right-wing press and also criticized by the liberal Guardian newspaper. To some, the idea of campaigning for a judge to resign seemed monstrous. If politically minded people could campaign for a judge to be dismissed, they wondered, would anything be left of the principle of judicial independence?

But Denning’s reactionary pronouncements kept on coming. After six innocent Irish men were wrongly convicted of the Birmingham pub bombings, having been tortured and framed by the police, Denning refused to allow their appeal to be heard, on the following grounds:

If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats . . . That was such an appalling vista that every sensible person would say, “It cannot be right that these actions should go any further.”

Later, Denning doubled down on his stance toward the Birmingham Six, telling one interviewee that it would be better if those wrongly accused of being terrorists had been hanged: “Then we should have forgotten all about them.”

In May 1982, Denning belatedly resigned. The last straw turned out to be his public insistence that no “black, coloured,” or “brown” person should be allowed to sit on a jury: “They will never accept the word of a policeman against one of their own.”

By making himself the spokesmen of a political constituency, Denning had also made himself accountable to his fellow right-wing populists. On an issue where even they were urging caution, he refused to stop. Ultimately, the dynamics of censure and public criticism were so powerful that even Denning could not resist them.

Unfortunately, it seems unlikely that the ultraconservative judges on the present-day Supreme Court will emulate Denning and resign. However unpopular their views may be with the American people as a whole, there is a powerful right-wing movement that worked tirelessly to put them in their current positions and will encourage them to stay there for as long as they are able.

The strategies once deployed by Lincoln and Roosevelt, on the other hand, show that there is no reason to throw in the towel when confronted with a court determined to thwart the most elementary reforms.

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