Patriot Games

One June day two years ago , James Douglas Nichols was pushing 70 miles per hour down a country road not far from his Decker , Michigan farm when he was caught in the crosshairs of a sheriff deputy ’ s radar gun .
The deputy pulled Nichols over and issued him tickets for speeding and for driving without a valid license .
Soon after , before a courthouse hearing in Sanilac County in eastern Michigan ’ s “ thumb , ” Nichols offered a bizarre defense of his actions .
The government , Nichols insisted , does not have @ @ @ @ @ @ @ in their cars .
“ I have put everyone concerned here on notice of what is going on here , ” declared Nichols with paranoid melodrama , “ to violate my rights to free travel as cited in the Constitution of the United States and the Constitution of Michigan.
” Presiding District Court Judge James A. Marcus patiently explained to Nichols the long-accepted legal distinction between a private citizen ’ s constitutional right to travel freely and the government ’ s legitimate right to regulate the operation of a motor vehicle .
But @ @ @ @ @ @ @ judge ’ s fine distinction ; he had done plenty of his own research .
Nichols continued his losing protests , citing Supreme Court case after Supreme Court case .
“ He ’ d lift a sentence or phrase that he thought was applicable , but he ’ d do so out of context so that the meaning was completely incorrect or nonsensical , ” recalls Judge Marcus .
The Sanilac County courthouse , a gracious brick edifice with a hideous concrete-block addition stuck on the back , is no stranger to twisted @ @ @ @ @ @ @ ’ s brother Terry Nichols had tried his own hand at finding his salvation in do-it-yourself legal reasoning .
He didn ’ t really owe that $ 31,000 in bank credit card debt , he announced to the court , because the banks had lent him “ credit , ” not “ legal tender.
” He offered to pay with what he called a “ certified fractional reserve check , ” a worthless piece of paper .
“ You can ’ t follow their arguments , ” explains Judge Marcus , “ because @ @ @ @ @ @ @ music no one else hears.
” But now , after the Oklahoma City bombing , plenty of people are straining to hear the melody .
James and Terry Nichols were both picked up after the bombing , though only Terry , and their friend Timothy McVeigh , have been charged with being directly involved .
The search for possible motives behind the worst terrorist attack in the nation ’ s history has turned the nation ’ s attention to the so-called “ patriot movement , ” the subculture of shadowy para-military groups and @ @ @ @ @ @ @ were drawn .
The media has portrayed the movement as full of gun-loving , right-wing extremists , and Timothy McVeigh , given his obsession with weapons and Waco , certainly fits that description .
But that portrayal obscures a key fact : Most members of the patriot movement are less obsessed with guns than with laws .
( James Nichols , for one , never joined a militia . )
For every camouflage-wearing amateur soldier drilling on weekends there are several amateur lawyers sitting at home reading federal statutes .
The patriot movement @ @ @ @ @ @ @ It includes plenty of racists and anti-semites , but also a good number of people who are not .
Much of their ideology can be safely classified as extreme versions of contemporary conservative , anti-government dogma .
Yet their absolutist notions about personal liberties put them closer to the ACLU and the New Left than to William Bennett and the Heritage Foundation .
What all “ patriots ” do seem to share , beyond the well-publicized fear that the federal government is stealing their rights , is a passionate devotion to the precise @ @ @ @ @ @ @ documents .
Imagine Robert Bork and Nat Hentoff dropping acid in the woods and you begin to get the picture .
Better yet , imagine a fundamentalist revival meeting where the Bible is replaced by The Federalist Papers .
As I chased the Nichols story around the prairie-flat eastern Michigan farm country on the wind-swept shores of Lake Huron , time and again friends and neighbors of James Nichols would bring up the Constitution , the Declaration of Independence , or The Federalist Papers , chide me for not having studied them , @ @ @ @ @ @ @ scripture .
The religious parallels were unmistakable , even down to the millenarian belief , almost universally shared , that Washington ’ s attack on individual liberty is a prelude to the imposition of a “ New World Order ” : a totalitarian , one-world government controlled by the United Nations .
Suspicious , even dismissive , of the interpretations of scholarly priests ( i.e .
judges ) , patriots prefer an extreme version of Martin Luther ’ s “ priesthood of all believers ” in which each individual can clearly grasp the @ @ @ @ @ @ @ texts for themselves .
But like Christian fundamentalists , these patriots are guided by an idiosyncratic political agenda .
They tend to quote selectively and read literally , “ isolating the part from the whole and pretending that there can be only one reading , ” notes University of Chicago theologian Martin Marty .
They are Constitutional fundamentalists .
One of the movement ’ s gentler , more thoughtful members is James Nichols ’ s neighbor and friend Phil Morawski , a bearded , pudgy , vaguely hippyish-looking farmer who sports a cowboy @ @ @ @ @ @ @ the words “ To Live in Christ ” scrawled on it .
Morawski became a familiar figure on network television in the days after the raid on the Nichols home , speaking to reporters in a Foster Brooks-like hiccupy slur ( “ He doesn ’ t drink , ” swears another neighbor , “ he just talks that way.
” ) Morawski lives with his mother and brother only a mile south of the Nichols place , on a farm complete with braying goats and a red , American Gothic-style barn .
On @ @ @ @ @ @ @ letters , are the words “ Happy Birthday America.
” Though not a militia member , Moraski says he has attended some of their meetings where he “ swore an oath to the Constitution.
” Like most “ patriots , ” Morawski ’ s frustration with the federal government arose from a personal trauma .
Along with millions of other farmers , he took out large expansion loans at the urging of U.S. Department of Agriculture in the seventies , then found himself buried in debt in the eighties , when land and @ @ @ @ @ @ @ in and out of court fighting the farm credit system , and managed to hold onto his land only by learning the intracacies of agricultural law with the help of various grassroots farm groups , many of which eventually evolved into patriot organizations .
In the process he picked up some odd ideas .
Nailed to the front of his farmhouse is a copy of the farm ’ s title , or “ patent , ” which the land ’ s first settlers received from the federal government in the nineteenth century .
@ @ @ @ @ @ @ believe that the language of these patents exempt them from local zoning ordinances .
( Only the courts disagree . )
James Nichols , too , was drawn into the orbit of the patriot movement after a bitter personal legal battle .
During a nasty divorce settlement in the late eighties , his ex-wife Kelly accused him of child abuse .
Nichols passed a lie detector test and the charges were dropped .
But the episode , which included a police search of his house left him feeling both furious and humiliated .
@ @ @ @ @ @ @ literature of the newly emerging patriot movement .
He read the Constitution and The Federalist Papers , along with “ Spotlight , ” a National Enquirer-like patriot paper , which runs pieces such as an exposé about concentration camps constructed to hold domestic political prisoners .
During the winters , with little farm work to do , Nichols curled up with Black ’ s Law Dictionary and the Uniform Commercial Code , an encyclopedia-length volume of rules that regulate commercial transactions .
He was looking , he told friends , for legal means @ @ @ @ @ @ @ the system.
” He attended meetings of We the People , a tax-protest group whose members believe the Federal Reserve system is unconstitutional .
Soon , he , too , was marking all his money with a red stamp that said he was not responsible for its value .
He even tried to get the county clerk to expunge his marriage license from the public record , and claimed to be “ no longer one of your citizens of your de facto government.
” Nichols ’ notions were not exactly original .
Virtually @ @ @ @ @ @ @ Posse Comitatus , a radical anti-federal-government movement founded in Oregon in 1969 and popular in the rural Midwest during the eighties farm crisis .
Posse members believed , among other things , that the Federal Reserve is in the pockets of a cabal of Jewish international bankers and that all constitutional amendments other than the first 10 were written by and for white Christians .
The Posse died out in the mid-eighties after some of its leaders were jailed or killed in shoot-outs with federal authorities .
But the movement ’ s legalist @ @ @ @ @ @ @ driver ’ s licenses and paying debts with “ fractional reserve checks , ” made their way into the patriot movement and into the minds of the Nichols brothers .
Although he never joined the militia , James Nichols attended several of their meetings , usually to give informational speeches on how to “ drop out of the system.
” He won few converts .
“ He ’ s a little bit farther than we are , ” admits Art Bean , commander of the Michigan Militia of Tuscola County ( just west @ @ @ @ @ @ @ the militia members are middle-of-the-roaders .
Bean , among others , is “ very disturbed ” by the Federal Emergency Management Agency ’ s statutory language , which he says gives the president the power to declare martial law : “ Read the law and make up your own mind.
” He fully expects Clinton to use that power before the 1996 election , in part to stop the militias .
In his search for ways to drop out of the system , Nichols came upon the teachings of a radical constitutionalist named @ @ @ @ @ @ @ , Granse runs an outfit called Citizens for a Constitutional Republic , headquartered in Apple Valley , an upscale Minneapolis suburb .
In the fall of 1994 , Nichols and several friends traveled to Minneapolis for one of Granse ’ s seminars on how to shuffle off the legal coils of taxes and licenses .
Nichols returned to Michigan $ 600 poorer , the price of the weekend lecture plus various books and video-tapes .
Eager to watch one of the videotapes , I went to visit a Nichols friend , Jim LeValley @ @ @ @ @ @ @ member of the Michigan Militia , LeValley raises flowers and herbs in a commercial greenhouse next to his home on the banks of the Cass River .
He greeted me in a camouflage cap , his boots caked with dirt .
We settled into the Ethan Allen furniture in his living room and flipped on the videotape .
On the tape , Granse points to the wall behind him , where an overhead projector displays fragments of statutory language defining those people subject to the federal income tax as “ residents of the @ @ @ @ @ @ @ no one in the room meets the criteria because they live in the individual states .
“ The ‘ United States ’ implies more than one , ” he proclaims with great flourish , teasing an audience member from Illinois to illustrate his point : “ You can either live in the United States or in Illinois .
Which is it going to be ?
.
.
.
You see , we have to stop and analyze the words , ” Granse instructs .
“ Law is a precise language.
” As the @ @ @ @ @ @ @ why he finds Granse ’ s ideas so appealing .
“ If you are not part of the corporate entity of the United States you don ’ t have to worry about the laws set forth by the United States to govern its people , ” LeValley explained .
“ It makes life a whole lot easier.
” I thought of W.C. Fields , who once insisted that he had studied the Bible scrupulously for 18 years , looking for loopholes .
When the tape was over , LeValley pulled a dollar bill @ @ @ @ @ @ @ , and pointed to the Latin words beneath the Masonic eyed-pyramid : NOVUS ORDO SECLORUM .
“ You know what that means ?
” he asked me .
“ That means ‘ New World Order.
’ It means eventually they want us to be in a one-world government .
That ’ s why they want to take away our guns.
” As I drove off , I wondered whether LeValley and his self-taught colleagues would someday see through the patriot movement ’ s paranoid misreadings of history and the world .
It might @ @ @ @ @ @ @ on the dollar bill , a quotation from the Latin poet Virgil meaning “ New Order of the Ages , ” were chosen not by international conspirators , but by a committee of this country ’ s first patriots , the revolutionaries who wrote the Constitution .

One June day two years ago, James Douglas Nichols was pushing 70 miles per hour down a country road not far from his Decker, Michigan farm when he was caught in the crosshairs of a sheriff deputy’s radar gun. The deputy pulled Nichols over and issued him tickets for speeding and for driving without a valid license.
Soon after, before a courthouse hearing in Sanilac County in eastern Michigan’s “thumb,” Nichols offered a bizarre defense of his actions. The government, Nichols insisted, does not have the constitutional power to regulate private citizens in their cars. “I have put everyone concerned here on notice of what is going on here,” declared Nichols with paranoid melodrama, “to violate my rights to free travel as cited in the Constitution of the United States and the Constitution of Michigan.”
Presiding District Court Judge James A. Marcus patiently explained to Nichols the long-accepted legal distinction between a private citizen’s constitutional right to travel freely and the government’s legitimate right to regulate the operation of a motor vehicle. But Nichols was not about to buy the judge’s fine distinction; he had done plenty of his own research. Nichols continued his losing protests, citing Supreme Court case after Supreme Court case. “He’d lift a sentence or phrase that he thought was applicable, but he’d do so out of context so that the meaning was completely incorrect or nonsensical,” recalls Judge Marcus.
The Sanilac County courthouse, a gracious brick edifice with a hideous concrete-block addition stuck on the back, is no stranger to twisted logic. Earlier that year, James’s brother Terry Nichols had tried his own hand at finding his salvation in do-it-yourself legal reasoning. He didn’t really owe that $31,000 in bank credit card debt, he announced to the court, because the banks had lent him “credit,” not “legal tender.” He offered to pay with what he called a “certified fractional reserve check,” a worthless piece of paper. “You can’t follow their arguments,” explains Judge Marcus, “because they’re listening to a different music no one else hears.”
But now, after the Oklahoma City bombing, plenty of people are straining to hear the melody. James and Terry Nichols were both picked up after the bombing, though only Terry, and their friend Timothy McVeigh, have been charged with being directly involved. The search for possible motives behind the worst terrorist attack in the nation’s history has turned the nation’s attention to the so-called “patriot movement,” the subculture of shadowy para-military groups and screwball ideas to which all three men were drawn.
The media has portrayed the movement as full of gun-loving, right-wing extremists, and Timothy McVeigh, given his obsession with weapons and Waco, certainly fits that description. But that portrayal obscures a key fact: Most members of the patriot movement are less obsessed with guns than with laws. (James Nichols, for one, never joined a militia.) For every camouflage-wearing amateur soldier drilling on weekends there are several amateur lawyers sitting at home reading federal statutes.
The patriot movement is a loose, motley affair. It includes plenty of racists and anti-semites, but also a good number of people who are not. Much of their ideology can be safely classified as extreme versions of contemporary conservative, anti-government dogma. Yet their absolutist notions about personal liberties put them closer to the ACLU and the New Left than to William Bennett and the Heritage Foundation.
What all “patriots” do seem to share, beyond the well-publicized fear that the federal government is stealing their rights, is a passionate devotion to the precise language of the nation’s founding documents. Imagine Robert Bork and Nat Hentoff dropping acid in the woods and you begin to get the picture.
Better yet, imagine a fundamentalist revival meeting where the Bible is replaced by The Federalist Papers. As I chased the Nichols story around the prairie-flat eastern Michigan farm country on the wind-swept shores of Lake Huron, time and again friends and neighbors of James Nichols would bring up the Constitution, the Declaration of Independence, or The Federalist Papers, chide me for not having studied them, and quote from them as if from scripture. The religious parallels were unmistakable, even down to the millenarian belief, almost universally shared, that Washington’s attack on individual liberty is a prelude to the imposition of a “New World Order”: a totalitarian, one-world government controlled by the United Nations.
Suspicious, even dismissive, of the interpretations of scholarly priests (i.e. judges), patriots prefer an extreme version of Martin Luther’s “priesthood of all believers” in which each individual can clearly grasp the framers’ intent by reading the sacred texts for themselves. But like Christian fundamentalists, these patriots are guided by an idiosyncratic political agenda. They tend to quote selectively and read literally, “isolating the part from the whole and pretending that there can be only one reading,” notes University of Chicago theologian Martin Marty. They are Constitutional fundamentalists.
One of the movement’s gentler, more thoughtful members is James Nichols’s neighbor and friend Phil Morawski, a bearded, pudgy, vaguely hippyish-looking farmer who sports a cowboy hat with a large silver crucifix and the words “To Live in Christ” scrawled on it. Morawski became a familiar figure on network television in the days after the raid on the Nichols home, speaking to reporters in a Foster Brooks-like hiccupy slur (“He doesn’t drink,” swears another neighbor, “he just talks that way.”) Morawski lives with his mother and brother only a mile south of the Nichols place, on a farm complete with braying goats and a red, American Gothic-style barn. On the barn, in large, faded-white letters, are the words “Happy Birthday America.” Though not a militia member, Moraski says he has attended some of their meetings where he “swore an oath to the Constitution.”
Like most “patriots,” Morawski’s frustration with the federal government arose from a personal trauma. Along with millions of other farmers, he took out large expansion loans at the urging of U.S. Department of Agriculture in the seventies, then found himself buried in debt in the eighties, when land and commodity prices plummeted. He spent years in and out of court fighting the farm credit system, and managed to hold onto his land only by learning the intracacies of agricultural law with the help of various grassroots farm groups, many of which eventually evolved into patriot organizations.
In the process he picked up some odd ideas. Nailed to the front of his farmhouse is a copy of the farm’s title, or “patent,” which the land’s first settlers received from the federal government in the nineteenth century. Morawski and many other patriot farmers firmly believe that the language of these patents exempt them from local zoning ordinances. (Only the courts disagree.)
James Nichols, too, was drawn into the orbit of the patriot movement after a bitter personal legal battle. During a nasty divorce settlement in the late eighties, his ex-wife Kelly accused him of child abuse. Nichols passed a lie detector test and the charges were dropped. But the episode, which included a police search of his house left him feeling both furious and humiliated.
After that, Nichols plunged into the literature of the newly emerging patriot movement. He read the Constitution and The Federalist Papers, along with “Spotlight,” a National Enquirer-like patriot paper, which runs pieces such as an exposé about concentration camps constructed to hold domestic political prisoners. During the winters, with little farm work to do, Nichols curled up with Black’s Law Dictionary and the Uniform Commercial Code, an encyclopedia-length volume of rules that regulate commercial transactions. He was looking, he told friends, for legal means to take himself “completely out of the system.” He attended meetings of We the People, a tax-protest group whose members believe the Federal Reserve system is unconstitutional. Soon, he, too, was marking all his money with a red stamp that said he was not responsible for its value. He even tried to get the county clerk to expunge his marriage license from the public record, and claimed to be “no longer one of your citizens of your de facto government.”
Nichols’ notions were not exactly original. Virtually all of them had roots in the Posse Comitatus, a radical anti-federal-government movement founded in Oregon in 1969 and popular in the rural Midwest during the eighties farm crisis. Posse members believed, among other things, that the Federal Reserve is in the pockets of a cabal of Jewish international bankers and that all constitutional amendments other than the first 10 were written by and for white Christians. The Posse died out in the mid-eighties after some of its leaders were jailed or killed in shoot-outs with federal authorities. But the movement’s legalist protests, such as refusing to carry driver’s licenses and paying debts with “fractional reserve checks,” made their way into the patriot movement and into the minds of the Nichols brothers.
Although he never joined the militia, James Nichols attended several of their meetings, usually to give informational speeches on how to “drop out of the system.” He won few converts. “He’s a little bit farther than we are,” admits Art Bean, commander of the Michigan Militia of Tuscola County (just west of Sanilac County). Not that the militia members are middle-of-the-roaders. Bean, among others, is “very disturbed” by the Federal Emergency Management Agency’s statutory language, which he says gives the president the power to declare martial law: “Read the law and make up your own mind.” He fully expects Clinton to use that power before the 1996 election, in part to stop the militias.
In his search for ways to drop out of the system, Nichols came upon the teachings of a radical constitutionalist named Karl Granse. A self-professed legal expert, Granse runs an outfit called Citizens for a Constitutional Republic, headquartered in Apple Valley, an upscale Minneapolis suburb. In the fall of 1994, Nichols and several friends traveled to Minneapolis for one of Granse’s seminars on how to shuffle off the legal coils of taxes and licenses. Nichols returned to Michigan $600 poorer, the price of the weekend lecture plus various books and video-tapes.
Eager to watch one of the videotapes, I went to visit a Nichols friend, Jim LeValley, who had borrowed one. A member of the Michigan Militia, LeValley raises flowers and herbs in a commercial greenhouse next to his home on the banks of the Cass River. He greeted me in a camouflage cap, his boots caked with dirt. We settled into the Ethan Allen furniture in his living room and flipped on the videotape.
On the tape, Granse points to the wall behind him, where an overhead projector displays fragments of statutory language defining those people subject to the federal income tax as “residents of the United States.” He then posits that no one in the room meets the criteria because they live in the individual states. “The ‘United States’ implies more than one,” he proclaims with great flourish, teasing an audience member from Illinois to illustrate his point: “You can either live in the United States or in Illinois. Which is it going to be?. . . You see, we have to stop and analyze the words,” Granse instructs. “Law is a precise language.”
As the tape played on, LeValley told me why he finds Granse’s ideas so appealing. “If you are not part of the corporate entity of the United States you don’t have to worry about the laws set forth by the United States to govern its people,” LeValley explained. “It makes life a whole lot easier.” I thought of W.C. Fields, who once insisted that he had studied the Bible scrupulously for 18 years, looking for loopholes.
When the tape was over, LeValley pulled a dollar bill from his pocket, flipped it over, and pointed to the Latin words beneath the Masonic eyed-pyramid: NOVUS ORDO SECLORUM. “You know what that means?” he asked me. “That means ‘New World Order.’ It means eventually they want us to be in a one-world government. That’s why they want to take away our guns.”
As I drove off, I wondered whether LeValley and his self-taught colleagues would someday see through the patriot movement’s paranoid misreadings of history and the world. It might help if they knew that the words on the dollar bill, a quotation from the Latin poet Virgil meaning “New Order of the Ages,” were chosen not by international conspirators, but by a committee of this country’s first patriots, the revolutionaries who wrote the Constitution.


washingtonmonthly--2020-10-08--John Roberts Ponders Partisanship. (Cue the Groans.)

If Fate has a sense of humor , it amused itself Monday at the expense of Chief Justice John Roberts .
The Chief and his seven associates began the 2020-21 Term ( without Justice Ruth Bader Ginsburg ) .
Their first case presented an argument about bipartisanship and political neutrality on the bench .
Technically , the question is whether Delaware can forbid partisan capture of its judicial branch .
But because it is 2020 , that question echoed on the live feed like lines from a Harold Pinter play where even innocuous phrases carry a hidden meaning .
No @ @ @ @ @ @ @ ’ s mind .
Roberts tries to maintain an image of the Court as a neutral body that simply calls “ balls and strikes , ” as he famously said in his 2005 confirmation hearings .
Meanwhile , his party has proclaimed partisan domination of the courts as its number one objective—one so paramount that the Senate majority is planning confirmation hearings , with infected members present , that sounds like a remake of Edgar Allan Poe ’ s “ Masque of the Red Death.
” The Republican president explains without shame that @ @ @ @ @ @ @ the Court to prevail in any election dispute .
At stake in Carney v. Adams are two provisions of the Delaware Constitution : one says that no political party can hold more than a “ bare majority ” of the judges on any of the top five state courts ( the “ bare majority ” rule ) —meaning , for example , that on the five-member state supreme court , no more than three judges can belong to the same party ; the second requires every appointee to the top three courts—the state @ @ @ @ @ @ @ , and the court of common pleas—to be either a Republican or a Democrat , but not an Independent or third-party member ( the “ major party ” rule ) .
The “ bare majority rule ” was created when the state rewrote its constitution in 1897 .
At that time , the Democratic Party had held the governorship for 30 years .
( One Republican was elected during that stretch but died after a year and a half in office . )
Delegates to the state convention charged that the bench had @ @ @ @ @ @ @ cronies .
As the “ bare majority ” rule took effect over the next half-century , Delaware ’ s state courts become the most important corporate courts in America , and Delaware became our Cayman Islands , a banking hub .
Part of the reason was the state ’ s business-friendly corporate statutes , but another part was their growing reputation for efficient , fair settlement of disputes .
In 1951 , the state legislature ( which can amend the state constitution on its own ) added to the “ bare majority ” @ @ @ @ @ @ @ on the top courts must belong to one major party or the other .
The reason , the current Governor John Carney , a Democrat , explained in his brief in Monday ’ s case , was to prevent an overreaching governor from dominating the courts by appointing “ Independents ” who had until recently been fellow partisans .
In 2017 , a Delaware lawyer named James R. Adams challenged both requirements in federal court .
Adams , a disillusioned Democrat , supported Bernie Sanders and then became an Independent .
Thus , @ @ @ @ @ @ @ on the top courts .
This , he argued , violated his First Amendment rights of speech and association .
The Third Circuit Court of Appeals held both rules unconstitutional .
When the Supreme Court accepted the case in 2019 , it attracted briefs from First Amendment heavyweights on both sides .
Refreshingly , there ’ s no clear “ liberal ” or “ conservative ” position .
Delaware was represented by Michael McConnell , a conservative Stanford professor appointed to the Tenth Circuit by George W. Bush and resigned in 2009 .
@ @ @ @ @ @ @ , spoke for Adams .
“ Delaware ’ s courts are widely regarded as the least partisan and most professional in the nation , ” McConnell said on behalf of the state .
“ [ T ] he Delaware provisions serve a compelling interest in creating a uniquely balanced and nonpartisan judiciary.
” The rank partisanship across the U.S. of the past two decades makes that “ balance ” particularly important , he added later .
Delaware has become a solid-blue state ( the last Republican statewide officeholder , state auditor Tom Wagner @ @ @ @ @ @ @ Without the “ bare majority ” rule , the Court would probably consist of five Democrats .
That would have unbalanced the Court to the left , he implied .
In case the Justices hadn ’ t noticed , McConnell pointed out , “ today the most liberal Republican is at least similar to but , you know , probably more conservative than the most conservative Democrat ” —a particularly Pinteresque statement .
As each of the Justices knows well , that polarization has been true of their Court at least since the @ @ @ @ @ @ @ 2010 .
McConnell ’ s argument seemed to leave the justices two unappealing choices : either affirm that Delaware ’ s courts are fairer than they would be without political balance—a balance the federal courts conspicuously lack–or rule for Adams and insist that the Constitution requires Delaware ’ s judicial nominations to be the spoils of partisan warfare—the warfare that has consumed appointments to the federal courts .
A few of the Justices seemed interested in a third option : flushing the case on technical grounds .
Adams hadn ’ t actually applied @ @ @ @ @ @ @ ” judgeships , several justices pointed out—so why should he have “ standing to sue ” at being excluded from jobs he never sought ?
“ For at least three of the five courts , he can ’ t even apply , ” Finger responded to Roberts .
“ [ O ] r he can apply , but what ’ s the point ?
” After the argument , the Justices seemed to be leaning toward one of two alternatives : either strike the entire case on “ standing ” grounds , which @ @ @ @ @ @ @ it is , or strike down the “ major party ” rule but leaving the “ bare majority ” rule in place .
McConnell concluded his argument by saying that the authors of the two rules “ wanted the judiciary to remain stable , balanced , and nonpartisan , even when elections go all for one party for a period of time .
Now their decision has survived the test of fire .
For the last 27 years , one party has held both the governorship and the Senate in Delaware , but @ @ @ @ @ @ @ .
That is a remarkable achievement.
” No one said , “ I wonder if the federal courts can say the same.
” But I am not the only person who wondered .
Whatever they decide about the “ First State , ” few observers today would call this Court “ non-partisan.
” On Monday night after argument , without comment , the Justices blocked part of a lower court order that would have made it easier to vote in South Carolina—an order that would have helped the campaign of Democratic challenger Jaime @ @ @ @ @ @ @ Republican Senator Lindsey Graham .
By my count , that marks seven emergency appeals on voting disputes the Court has intervened in ; score to date , Republican 6 , Democrats 1 .
Meanwhile , across First St N.E .
from the Court , Senate Republicans were working into the night to ensure that Amy Coney Barrett will be confirmed before the voters can say boo about it .
After all , those balls and strikes aren ’ t going to call themselves .

If Fate has a sense of humor, it amused itself Monday at the expense of Chief Justice John Roberts. The Chief and his seven associates began the 2020-21 Term (without Justice Ruth Bader Ginsburg). Their first case presented an argument about bipartisanship and political neutrality on the bench.
Technically, the question is whether Delaware can forbid partisan capture of its judicial branch. But because it is 2020, that question echoed on the live feed like lines from a Harold Pinter play where even innocuous phrases carry a hidden meaning. No one talks about what is on everyone’s mind.
Roberts tries to maintain an image of the Court as a neutral body that simply calls “balls and strikes,” as he famously said in his 2005 confirmation hearings. Meanwhile, his party has proclaimed partisan domination of the courts as its number one objective—one so paramount that the Senate majority is planning confirmation hearings, with infected members present, that sounds like a remake of Edgar Allan Poe’s “Masque of the Red Death.” The Republican president explains without shame that he needs a 6-3 Republican majority on the Court to prevail in any election dispute.
At stake in Carney v. Adams are two provisions of the Delaware Constitution: one says that no political party can hold more than a “bare majority” of the judges on any of the top five state courts (the “bare majority” rule)—meaning, for example, that on the five-member state supreme court, no more than three judges can belong to the same party; the second requires every appointee to the top three courts—the state supreme court, the court of chancery, and the court of common pleas—to be either a Republican or a Democrat, but not an Independent or third-party member (the “major party” rule).
The “bare majority rule” was created when the state rewrote its constitution in 1897. At that time, the Democratic Party had held the governorship for 30 years. (One Republican was elected during that stretch but died after a year and a half in office.) Delegates to the state convention charged that the bench had become a dumping ground for partisans and cronies. As the “bare majority” rule took effect over the next half-century, Delaware’s state courts become the most important corporate courts in America, and Delaware became our Cayman Islands, a banking hub. Part of the reason was the state’s business-friendly corporate statutes, but another part was their growing reputation for efficient, fair settlement of disputes. In 1951, the state legislature (which can amend the state constitution on its own) added to the “bare majority” rule a new dictum that each judge on the top courts must belong to one major party or the other. The reason, the current Governor John Carney, a Democrat, explained in his brief in Monday’s case, was to prevent an overreaching governor from dominating the courts by appointing “Independents” who had until recently been fellow partisans.
In 2017, a Delaware lawyer named James R. Adams challenged both requirements in federal court. Adams, a disillusioned Democrat, supported Bernie Sanders and then became an Independent. Thus, he was not eligible for any seat on the top courts. This, he argued, violated his First Amendment rights of speech and association. The Third Circuit Court of Appeals held both rules unconstitutional.
When the Supreme Court accepted the case in 2019, it attracted briefs from First Amendment heavyweights on both sides. Refreshingly, there’s no clear “liberal” or “conservative” position. Delaware was represented by Michael McConnell, a conservative Stanford professor appointed to the Tenth Circuit by George W. Bush and resigned in 2009. David Finger, a prominent Delaware lawyer, spoke for Adams.
“Delaware’s courts are widely regarded as the least partisan and most professional in the nation,” McConnell said on behalf of the state. “[T]he Delaware provisions serve a compelling interest in creating a uniquely balanced and nonpartisan judiciary.” The rank partisanship across the U.S. of the past two decades makes that “balance” particularly important, he added later. Delaware has become a solid-blue state (the last Republican statewide officeholder, state auditor Tom Wagner, left office in 2019). Without the “bare majority” rule, the Court would probably consist of five Democrats. That would have unbalanced the Court to the left, he implied.
In case the Justices hadn’t noticed, McConnell pointed out, “today the most liberal Republican is at least similar to but, you know, probably more conservative than the most conservative Democrat”—a particularly Pinteresque statement. As each of the Justices knows well, that polarization has been true of their Court at least since the retirement of Justice John Paul Stevens in 2010.
McConnell’s argument seemed to leave the justices two unappealing choices: either affirm that Delaware’s courts are fairer than they would be without political balance—a balance the federal courts conspicuously lack–or rule for Adams and insist that the Constitution requires Delaware’s judicial nominations to be the spoils of partisan warfare—the warfare that has consumed appointments to the federal courts. A few of the Justices seemed interested in a third option: flushing the case on technical grounds. Adams hadn’t actually applied for any of the “major party” judgeships, several justices pointed out—so why should he have “standing to sue” at being excluded from jobs he never sought? “For at least three of the five courts, he can’t even apply,” Finger responded to Roberts. “[O]r he can apply, but what’s the point?”
After the argument, the Justices seemed to be leaning toward one of two alternatives: either strike the entire case on “standing” grounds, which would leave the Delaware peculiar system as it is, or strike down the “major party” rule but leaving the “bare majority” rule in place.
McConnell concluded his argument by saying that the authors of the two rules “wanted the judiciary to remain stable, balanced, and nonpartisan, even when elections go all for one party for a period of time. Now their decision has survived the test of fire. For the last 27 years, one party has held both the governorship and the Senate in Delaware, but the courts have remained balanced and nonpartisan. That is a remarkable achievement.”
No one said, “I wonder if the federal courts can say the same.” But I am not the only person who wondered.
Whatever they decide about the “First State,” few observers today would call this Court “non-partisan.” On Monday night after argument, without comment, the Justices blocked part of a lower court order that would have made it easier to vote in South Carolina—an order that would have helped the campaign of Democratic challenger Jaime Harrison and hurt the re-election chances of Republican Senator Lindsey Graham. By my count, that marks seven emergency appeals on voting disputes the Court has intervened in; score to date, Republican 6, Democrats 1.
Meanwhile, across First St N.E. from the Court, Senate Republicans were working into the night to ensure that Amy Coney Barrett will be confirmed before the voters can say boo about it.
After all, those balls and strikes aren’t going to call themselves.


washingtonmonthly--2020-10-09--The FCC Has Untapped Powers. The Next Administration Needs to Use Them

The nation ’ s concentration crisis is at a zenith in the modern era .
State Attorneys General , Congress , the Federal Trade Commission , the Department of Justice , and private parties are investigating and prosecuting corporate power .
The next administration should take it a step further by revitalizing the Federal Communications Commission ( FCC ) and use its dormant regulations to break up monopolies in the telecommunications industry .
Since the FCC was established in 1934 , it ’ s been charged with structuring communications in the United States and ensuring that wireless and wired technologies @ @ @ @ @ @ @ The FCC ’ s breadth of territory is astounding – radio , television , wire , satellite , and cable are all within the agency ’ s purview .
As detailed in a report by the Center for Journalism and Liberty , the FCC once used its mandate to regulate abusive and exclusionary behavior by fostering a fair and competitive marketplace that serves the public interest .
The commission ’ s enabling statute gave the agency strong substantive rulemaking authority to structure and regulate communications markets .
Congress even gave the FCC the @ @ @ @ @ @ @ that only “ enhance [ d ] and promote [ d ] , rather than eliminate or retard , competition ” – a lower standard than the “ substantially lessens competition ” standard in the primary anti-merger statute , the Clayton Act .
As the report details , between 1934 to 1975 , the FCC implemented some of the most progressive anti-monopoly policies in our nation ’ s history .
The FCC required NBC , the then-dominant provider of radio communications , to divest significant parts of its operations to what is now @ @ @ @ @ @ @ owning more than one station in a geographic region and limited broadcasters to owning at most five stations nationally , a rule that partially continues today with the agency ’ s broadcast network rules .
The FCC prevented excessive market consolidation by imposing rules that promoted fair competition and inhibited a telecommunications provider from leveraging their dominance in one industry to gain a foothold in another .
For example , the FCC prevented the cross-ownership of newspapers and broadcast stations .
It also separated television networks from studios and production houses that produced @ @ @ @ @ @ @ from rebroadcasting the same program on multiple stations if the network retained a financial interest in the program .
The FCC even sought to inhibit telecommunications companies from leveraging their access to private information about their customers for marketing purposes—something that seems more than a little relevant today in the age of social media giants that exist to collect every ounce of data on their users .
Most famously , the FCC implemented the Fairness Doctrine , which mandated that broadcasters exposed the American public to contrasting viewpoints .
These policies have several @ @ @ @ @ @ @ a deconcentrated and competitive media sector .
Second , by structurally limiting their size , the commission inhibited a handful of corporations ’ ability to control the medium in any geographic location .
Lastly , the commission sought to create an environment where the public was exposed to diverse content to meet the broad information needs of communities .
The FCC believed its policies not only facilitated its legislative mandate but also implemented these policies to facilitate the spirit of the Sherman Act , the 1890 federal antitrust law designed to be a @ @ @ @ @ @ @ In its landmark 1941 Report on Chain Broadcasting , the FCC dedicated itself to “ the purposes which the Sherman Act was designed to achieve.
” The 1980s were a turning point for the FCC .
Slowly America ’ s anti-monopoly enforcement began to retreat as then-Yale Law Professor Robert Bork ’ s idea of promoting economic efficiency convinced scholars and the federal courts to reinterpret the antitrust laws .
Bork ’ s ideas convinced courts to restrict the application of antitrust laws , overturn critical precedents , and incorporate economics into their @ @ @ @ @ @ @ successful litigation .
Since adopting Bork ’ s philosophy , the FCC has retreated from its core mission .
In 1996 Congress passed , and Bill Clinton signed a telecom law that codified many pro-monopoly philosophies .
The 1996 statute substantially changed the 1934 Communications Act and imposed significant burdens on the regulation of American telecommunications .
In line with the Borkian viewpoint , the FCC has repealed almost all of its structural regulations enacted during its first four decades .
As a result , only a handful of corporations own and control @ @ @ @ @ @ @ markets .
Research from IBIS World shows that the top three broadcast television stations have a total national market share of 40 % .
The top three companies have a combined market share of almost 70 % in the cellular industry .
The top five internet service providers have a market share of over 60 % , and 80 million Americans have access to only one monopoly internet provider .
As detailed in the chart below , the number of industries in telecommunications that competitive is almost non-existent .
Even worse , the @ @ @ @ @ @ @ monopoly in the telecommunication sector .
The FCC approved the merger between T-Mobile and Sprint , reducing national mobile carriers from four to three .
It repealed net neutrality , which prevents internet service providers from discriminating against a user ’ s internet connection by either throttling data speeds or charging users extra to access all aspects of the internet .
Worse still , the Trump-appointed FCC chairman , Ajit Pai , added jet fuel to the Borkian pro-monopoly agenda by forming the Office of Economics and Analytics in 2018 , which adds @ @ @ @ @ @ @ s to implement its statutory mandate .
Although monopolies blight the communications landscape , the wave of litigation against them is an encouraging sign .
The antitrust report released on Tuesday by the House Subcommittee on Antitrust , Commercial and Administrative Law also signals a new anti-monopoly commitment by lawmakers…The FCC has the ability to restructure consolidated telecommunications markets , without Congressional intervention .
The agency has routinely been granted by courts a powerful affirmation to reinterpret their controlling statute , as was shown in the numerous concerning net neutrality .
A new @ @ @ @ @ @ @ structural regulations to rein in and break up concentrated corporate .
Fundamental change is possible .

The nation’s concentration crisis is at a zenith in the modern era. State Attorneys General, Congress, the Federal Trade Commission, the Department of Justice, and private parties are investigating and prosecuting corporate power. The next administration should take it a step further by revitalizing the Federal Communications Commission (FCC) and use its dormant regulations to break up monopolies in the telecommunications industry.
Since the FCC was established in 1934, it’s been charged with structuring communications in the United States and ensuring that wireless and wired technologies are managed in the public interest. The FCC’s breadth of territory is astounding – radio, television, wire, satellite, and cable are all within the agency’s purview. As detailed in a report by the Center for Journalism and Liberty, the FCC once used its mandate to regulate abusive and exclusionary behavior by fostering a fair and competitive marketplace that serves the public interest. The commission’s enabling statute gave the agency strong substantive rulemaking authority to structure and regulate communications markets. Congress even gave the FCC the ability to allow mergers involving telecommunications companies that only “enhance[d] and promote[d], rather than eliminate or retard, competition” – a lower standard than the “substantially lessens competition” standard in the primary anti-merger statute, the Clayton Act.
As the report details, between 1934 to 1975, the FCC implemented some of the most progressive anti-monopoly policies in our nation’s history. The FCC required NBC, the then-dominant provider of radio communications, to divest significant parts of its operations to what is now ABC. The FCC prohibited broadcasters from owning more than one station in a geographic region and limited broadcasters to owning at most five stations nationally, a rule that partially continues today with the agency’s broadcast network rules.
The FCC prevented excessive market consolidation by imposing rules that promoted fair competition and inhibited a telecommunications provider from leveraging their dominance in one industry to gain a foothold in another. For example, the FCC prevented the cross-ownership of newspapers and broadcast stations. It also separated television networks from studios and production houses that produced their content. The agency prohibited networks from rebroadcasting the same program on multiple stations if the network retained a financial interest in the program. The FCC even sought to inhibit telecommunications companies from leveraging their access to private information about their customers for marketing purposes—something that seems more than a little relevant today in the age of social media giants that exist to collect every ounce of data on their users. Most famously, the FCC implemented the Fairness Doctrine, which mandated that broadcasters exposed the American public to contrasting viewpoints.
These policies have several goals. The first was to ensure a deconcentrated and competitive media sector. Second, by structurally limiting their size, the commission inhibited a handful of corporations’ ability to control the medium in any geographic location. Lastly, the commission sought to create an environment where the public was exposed to diverse content to meet the broad information needs of communities. The FCC believed its policies not only facilitated its legislative mandate but also implemented these policies to facilitate the spirit of the Sherman Act, the 1890 federal antitrust law designed to be a “comprehensive charter of economic freedom.” In its landmark 1941 Report on Chain Broadcasting, the FCC dedicated itself to “the purposes which the Sherman Act was designed to achieve.”
The 1980s were a turning point for the FCC. Slowly America’s anti-monopoly enforcement began to retreat as then-Yale Law Professor Robert Bork’s idea of promoting economic efficiency convinced scholars and the federal courts to reinterpret the antitrust laws. Bork’s ideas convinced courts to restrict the application of antitrust laws, overturn critical precedents, and incorporate economics into their analysis, increasing the legal hurdles to successful litigation.
Since adopting Bork’s philosophy, the FCC has retreated from its core mission. In 1996 Congress passed, and Bill Clinton signed a telecom law that codified many pro-monopoly philosophies. The 1996 statute substantially changed the 1934 Communications Act and imposed significant burdens on the regulation of American telecommunications. In line with the Borkian viewpoint, the FCC has repealed almost all of its structural regulations enacted during its first four decades. As a result, only a handful of corporations own and control significant aspects of America’s telecommunications markets. Research from IBIS World shows that the top three broadcast television stations have a total national market share of 40%. The top three companies have a combined market share of almost 70% in the cellular industry. The top five internet service providers have a market share of over 60%, and 80 million Americans have access to only one monopoly internet provider. As detailed in the chart below, the number of industries in telecommunications that competitive is almost non-existent.
Even worse, the FCC has taken affirmative steps to codify monopoly in the telecommunication sector. The FCC approved the merger between T-Mobile and Sprint, reducing national mobile carriers from four to three. It repealed net neutrality, which prevents internet service providers from discriminating against a user’s internet connection by either throttling data speeds or charging users extra to access all aspects of the internet. Worse still, the Trump-appointed FCC chairman, Ajit Pai, added jet fuel to the Borkian pro-monopoly agenda by forming the Office of Economics and Analytics in 2018, which adds further regulatory hurdles for the FCC’s to implement its statutory mandate.
Although monopolies blight the communications landscape, the wave of litigation against them is an encouraging sign. The antitrust report released on Tuesday by the House Subcommittee on Antitrust, Commercial and Administrative Law also signals a new anti-monopoly commitment by lawmakers…The FCC has the ability to restructure consolidated telecommunications markets, without Congressional intervention. The agency has routinely been granted by courts a powerful affirmation to reinterpret their controlling statute, as was shown in the numerous concerning net neutrality. A new administration ca nominate commissioners to enact new structural regulations to rein in and break up concentrated corporate. Fundamental change is possible.


washingtonmonthly--2020-10-09--The Media is Spreading Trump’s Lies About Mail-In Voting

At Wednesday ’ s debate , Mike Pence was asked what he would do if Joe Biden won the election , and Donald Trump refused a peaceful transfer of power .
The vice president packaged several lies into one grand evasion of the question .
Pence even repeated the right-wing trope that mail-in voting creates “ a massive opportunity for voter fraud.
” In doing so , he anticipated the lie Trump will likely use to create chaos on November 3 .
While fact-checkers have debunked that lie about mail-in voting over and over again , polling shows that nearly @ @ @ @ @ @ @ “ major problem.
” If Trump can convince a large share of his supporters that mail-in ballots amount to a stolen election , massive civil unrest could follow .
According to a report published earlier this month by Harvard ’ s Berkman Klein Center for Internet & Society , those poll results stem from Trump himself , his campaign , and the Republican National Committee engaging in a strategic disinformation campaign about mail-in voting .
That ’ s not entirely surprising , but what is alarming is the degree to which the poisonous @ @ @ @ @ @ @ led.
” The report assessed how the issue of mail-in ballot “ fraud ” was being dealt with by mainstream media outlets , right-wing news sites , and social media from late March through August 2020 .
In just one example , Trump told reporters on April 3 that “ a lot of people cheat with mail-in voting.
” That tapped into the first and second core standard practices of professional journalism identified in the report : the president publicly said something explosive .
The Associated Press reflexively demonstrated observed neutrality with its @ @ @ @ @ @ @ , Dems clash on boosting mail-in voting during the pandemic.
” Instead of saying the president was lying , the dispatch framed the issue as a “ clash ” between Republicans and Democrats over how to vote during a pandemic .
It was a classic case of bothsiderism , and being the AP , it was carried pretty much everywhere .
The Berkman Klein Center found that every piece of disinformation about mail-in ballot fraud during that time period originated with the president , his campaign , or the Republican National Committee—with one @ @ @ @ @ @ @ published an article by Mark Hemingway , “ 29 Million Mail-In Ballots Went Missing in Last Four Elections , ” which I wrote about at the time .
Hemingway based his piece on data from the Public Interest Legal Foundation ( PILF ) , a conservative advocacy organization that has led or joined efforts to purge voter rolls and spread false claims of voter fraud .
Hemmingway ’ s story was picked up by conservative outlets like the New York Post and Gateway Pundit .
Tony Perkins , president of the Family Research @ @ @ @ @ @ @ was syndicated at several right-wing sites .
On April 30 , Hemingway ’ s article was tweeted by his wife , Mollie Hemingway , senior editor at The Federalist .
Her tweet was then retweeted by Trump the next day .
While news sites like RealClearPolitics and The Federalist were previously considered to be reputable center-right publications , they now engage in the kind of conspiracy-mongering that has infected so much of conservative media during the Trump presidency .
Here is how the Berkman Klein Center report concludes : When President Trump concluded @ @ @ @ @ @ @ on September 29 , 2020 , he reiterated the false claim that mail-in ballots were subject to mass election fraud , and cited this concern to justify his refusal to commit to accepting the results of the election should he be defeated .
This assertion capped a six months long disinformation campaign waged by the president and his party against expansion of mail-in voting during the pandemic of 2020 .
There is no disinformation campaign more likely to affect voter participation in the 2020 U.S. election and perceptions of the election ’ s @ @ @ @ @ @ @ mail-in voting is fraught with the risk of voter fraud .
Will this strategy work ?
It only can if the media continue to inject these ideas into the body politic .
( Kudos to those like Margaret Sullivan of The Washington Post and our own Eric Cortellessa at The Washington Monthly who are getting the truth out . )
It ’ s little wonder , then , that the report ends with advice for the mass media not to be conned by Trump .
In the coming months , it will be @ @ @ @ @ @ @ local media…not to fall for the strategy that the president has used so skillfully in the past six months , not to capitulate to the inevitable charges of partisanship that will befall any journalists and editors who call the disinformation campaign by its name , and not to add confusion and uncertainty to their readers , viewers , and listeners by emphasizing false equivalents… This is a lesson that some , but hardly all , members of the media have learned .
In the case of Trump ’ s disinformation campaign about mail-in @ @ @ @ @ @ @ for journalists to get this one wrong .

At Wednesday’s debate, Mike Pence was asked what he would do if Joe Biden won the election, and Donald Trump refused a peaceful transfer of power. The vice president packaged several lies into one grand evasion of the question. Pence even repeated the right-wing trope that mail-in voting creates “a massive opportunity for voter fraud.” In doing so, he anticipated the lie Trump will likely use to create chaos on November 3.
While fact-checkers have debunked that lie about mail-in voting over and over again, polling shows that nearly half of Republicans believe it is a “major problem.” If Trump can convince a large share of his supporters that mail-in ballots amount to a stolen election, massive civil unrest could follow.
According to a report published earlier this month by Harvard’s Berkman Klein Center for Internet & Society, those poll results stem from Trump himself, his campaign, and the Republican National Committee engaging in a strategic disinformation campaign about mail-in voting. That’s not entirely surprising, but what is alarming is the degree to which the poisonous accusations have been “elite-driven and mass-media led.”
Our findings here suggest that Donald Trump has perfected the art of harnessing mass media to disseminate and at times reinforce his disinformation campaign by using three core standard practices of professional journalism. These three are: elite institutional focus (if the President says it, it’s news); headline seeking (if it bleeds, it leads); and balance, neutrality, or the avoidance of the appearance of taking a side.
The report assessed how the issue of mail-in ballot “fraud” was being dealt with by mainstream media outlets, right-wing news sites, and social media from late March through August 2020. In just one example, Trump told reporters on April 3 that “a lot of people cheat with mail-in voting.” That tapped into the first and second core standard practices of professional journalism identified in the report: the president publicly said something explosive.
The Associated Press reflexively demonstrated observed neutrality with its next-day headline that read: “Trump, Dems clash on boosting mail-in voting during the pandemic.” Instead of saying the president was lying, the dispatch framed the issue as a “clash” between Republicans and Democrats over how to vote during a pandemic. It was a classic case of bothsiderism, and being the AP, it was carried pretty much everywhere.
The Berkman Klein Center found that every piece of disinformation about mail-in ballot fraud during that time period originated with the president, his campaign, or the Republican National Committee—with one exception. On April 24, RealClearPolitics published an article by Mark Hemingway, “29 Million Mail-In Ballots Went Missing in Last Four Elections,” which I wrote about at the time. Hemingway based his piece on data from the Public Interest Legal Foundation (PILF), a conservative advocacy organization that has led or joined efforts to purge voter rolls and spread false claims of voter fraud. Hemmingway’s story was picked up by conservative outlets like the New York Post and Gateway Pundit. Tony Perkins, president of the Family Research Council, wrote a similar piece that was syndicated at several right-wing sites. On April 30, Hemingway’s article was tweeted by his wife, Mollie Hemingway, senior editor at The Federalist. Her tweet was then retweeted by Trump the next day.
While news sites like RealClearPolitics and The Federalist were previously considered to be reputable center-right publications, they now engage in the kind of conspiracy-mongering that has infected so much of conservative media during the Trump presidency.
Here is how the Berkman Klein Center report concludes:
When President Trump concluded his performance in the first presidential debate on September 29, 2020, he reiterated the false claim that mail-in ballots were subject to mass election fraud, and cited this concern to justify his refusal to commit to accepting the results of the election should he be defeated. This assertion capped a six months long disinformation campaign waged by the president and his party against expansion of mail-in voting during the pandemic of 2020. There is no disinformation campaign more likely to affect voter participation in the 2020 U.S. election and perceptions of the election’s legitimacy than the repeated false assertion that mail-in voting is fraught with the risk of voter fraud.
Will this strategy work? It only can if the media continue to inject these ideas into the body politic. (Kudos to those like Margaret Sullivan of The Washington Post and our own Eric Cortellessa at The Washington Monthly who are getting the truth out.) It’s little wonder, then, that the report ends with advice for the mass media not to be conned by Trump.
In the coming months, it will be critical for editors of these national and local media…not to fall for the strategy that the president has used so skillfully in the past six months, not to capitulate to the inevitable charges of partisanship that will befall any journalists and editors who call the disinformation campaign by its name, and not to add confusion and uncertainty to their readers, viewers, and listeners by emphasizing false equivalents…
This is a lesson that some, but hardly all, members of the media have learned. In the case of Trump’s disinformation campaign about mail-in ballots, the stakes are too high for journalists to get this one wrong.


Here’s the Pitch

Cricket or baseball ?
Can these two bat-and-ball sports , and the nations that support them , find a common language and work toward common goals — not just in sport , but in loose alliance ?
Four countries that are big into cricket and baseball are also working together trying to keep the world safe for democracy .
India and Australia are cricket nations .
Japan and the United States are all about baseball .
Together , the four nations are known as the “ Quad ” — “ Quadrilateral Strategic Dialogue ” — and they are invested in @ @ @ @ @ @ @ s the vast swath of land and sea from the Pacific Ocean to the Indian Ocean .
At the same time that the 60-game Major League Baseball season is in playoffs , high-level Quad political representatives met face-to-masked-face in Tokyo .
Their goal ?
Figure out how to play ball together and keep China from winning the game of global competition .
As the United States and Japan try to shape the Quad ’ s strategic alliance to defend the region and confront China , it often seems as if these baseball nations @ @ @ @ @ @ @ and military games .
In politics , as in sports , conflicting differences become glaringly apparent and important .
Style , form , and rules vary .
In Japanese baseball , the strike zone is larger , the ballparks smaller .
Same sport , somewhat different game .
To make matters worse , cricket and baseball are completely different .
Yes , both have pitchers , batters score runs and games are excruciatingly slow .
But that ’ s where similarities end .
They are not the same sport .
Rules and vocabulary @ @ @ @ @ @ @ get confused when a pitcher is called a “ bowler ” and “ wickets ” — sticky or otherwise — come into play .
Life in the 21st century continues to evolve , however .
Sports that once never hit American TV screens now are highlighted by ESPN .
Cricket used to be strangely distant , not stumbled across while channel surfing .
Sports sections in American newspapers never carried cricket tournament results that now are just a click away .
Suddenly , globalization makes every sport and activity on Earth seem more @ @ @ @ @ @ @ to everyone .
It makes distant events more familiar and immediate .
Cricket fans now get dugout views of World Series games .
Bleacher bums homebound because of COVID-19 might become mesmerized by a two-month Australia vs. India “ Test series to start with pink ball game in Adelaide ” on TV this November .
The Quad countries play different , if related , political games .
Regardless , these countries are working to harmonize their approach , rules , and desired winning outcomes .
India , Australia , Japan , and the @ @ @ @ @ @ @ game because their shared democratic and free-market ideals are enhanced by their mutual understanding of common threats .
The Quad recognizes that while its constituent nations compete against each other for global markets , they coalesce in their fight for human rights and transparent governance .
They all recognize China as a strategic competitor , though not always in the same way or with the same language .
In Tokyo this week , Secretary of State Mike Pompeo got on the mound and pitched the Quad on a mutually assertive stance against China @ @ @ @ @ @ @ coercion.
” Japan — the country that initiated the Quad in 2007 — batted away that undiplomatic approach .
Tokyo ’ s new Prime Minister Yoshihide Suga said that he wants to “ build stable relations with neighboring countries , including China and Russia.
” China , of course , is generally unhappy with the Quad .
Beijing prefers to divide the Quad politically and conquer it economically .
It accuses the four nations of trying to contain China , trying to create a NATO-like military alliance in the Indo-Pacific .
Beijing says @ @ @ @ @ @ @ clique ” aimed at curtailing China ’ s ambitions .
All the while , the Quad is trying to find a cautious way to integrate its members without alienating them .
India , for example , is wary of any alliances .
In fact , it was central to the development of the 20th century Nonaligned Movement .
New Delhi ’ s colonial experience and the current rise of political nationalism at home makes any move toward a military or political alliance with Quad nations nearly impossible .
On the other hand , @ @ @ @ @ @ @ disputed Himalayan territory has slightly opened up India ’ s thinking towards coordinating with likeminded This brings us back to cricket and baseball , neither of which are China ’ s national sports .
They play ping-pong , where a kill shot is the way to win .
Quad members will have to play well together without necessarily playing the exact same game .
The Quad needs simultaneously to adjust to Japan ’ s new leadership team , an Australia increasingly threatened by China and an America that decides how it will play @ @ @ @ @ @ @ come Nov. 3 .

Cricket or baseball? Can these two bat-and-ball sports, and the nations that support them, find a common language and work toward common goals — not just in sport, but in loose alliance? Four countries that are big into cricket and baseball are also working together trying to keep the world safe for democracy.
India and Australia are cricket nations. Japan and the United States are all about baseball. Together, the four nations are known as the “Quad” — “Quadrilateral Strategic Dialogue” — and they are invested in securing the Indo-Pacific region. That’s the vast swath of land and sea from the Pacific Ocean to the Indian Ocean. At the same time that the 60-game Major League Baseball season is in playoffs, high-level Quad political representatives met face-to-masked-face in Tokyo. Their goal? Figure out how to play ball together and keep China from winning the game of global competition.
As the United States and Japan try to shape the Quad’s strategic alliance to defend the region and confront China, it often seems as if these baseball nations are playing different political, diplomatic, and military games. In politics, as in sports, conflicting differences become glaringly apparent and important. Style, form, and rules vary. In Japanese baseball, the strike zone is larger, the ballparks smaller.
Same sport, somewhat different game.
To make matters worse, cricket and baseball are completely different. Yes, both have pitchers, batters score runs and games are excruciatingly slow. But that’s where similarities end. They are not the same sport. Rules and vocabulary seem inaccessible. Baseball fans watching cricket get confused when a pitcher is called a “bowler” and “wickets” — sticky or otherwise — come into play.
Life in the 21st century continues to evolve, however. Sports that once never hit American TV screens now are highlighted by ESPN. Cricket used to be strangely distant, not stumbled across while channel surfing. Sports sections in American newspapers never carried cricket tournament results that now are just a click away.
Suddenly, globalization makes every sport and activity on Earth seem more accessible — if not entirely understandable — to everyone. It makes distant events more familiar and immediate. Cricket fans now get dugout views of World Series games. Bleacher bums homebound because of COVID-19 might become mesmerized by a two-month Australia vs. India “Test series to start with pink ball game in Adelaide” on TV this November.
The Quad countries play different, if related, political games. Regardless, these countries are working to harmonize their approach, rules, and desired winning outcomes. India, Australia, Japan, and the United States want to play the same game because their shared democratic and free-market ideals are enhanced by their mutual understanding of common threats.
The Quad recognizes that while its constituent nations compete against each other for global markets, they coalesce in their fight for human rights and transparent governance. They all recognize China as a strategic competitor, though not always in the same way or with the same language.
In Tokyo this week, Secretary of State Mike Pompeo got on the mound and pitched the Quad on a mutually assertive stance against China’s “exploitation, corruption and coercion.” Japan — the country that initiated the Quad in 2007 — batted away that undiplomatic approach. Tokyo’s new Prime Minister Yoshihide Suga said that he wants to “build stable relations with neighboring countries, including China and Russia.”
China, of course, is generally unhappy with the Quad. Beijing prefers to divide the Quad politically and conquer it economically. It accuses the four nations of trying to contain China, trying to create a NATO-like military alliance in the Indo-Pacific. Beijing says the Quad is forming an “exclusive clique” aimed at curtailing China’s ambitions.
All the while, the Quad is trying to find a cautious way to integrate its members without alienating them. India, for example, is wary of any alliances. In fact, it was central to the development of the 20th century Nonaligned Movement. New Delhi’s colonial experience and the current rise of political nationalism at home makes any move toward a military or political alliance with Quad nations nearly impossible.
On the other hand, a recent direct conflict with China on disputed Himalayan territory has slightly opened up India’s thinking towards coordinating with likeminded This brings us back to cricket and baseball, neither of which are China’s national sports. They play ping-pong, where a kill shot is the way to win.
Quad members will have to play well together without necessarily playing the exact same game. The Quad needs simultaneously to adjust to Japan’s new leadership team, an Australia increasingly threatened by China and an America that decides how it will play ball with the rest of the world come Nov. 3.


washingtonmonthly--2020-10-10--How Many Republican Senators Have COVID? They Won’t Say

There comes a point in most heist movies where the thieves ’ plan seems to be coming off the rails .
Each individual starts improvising and stonewalling in the hope that , with a bit of luck and scamming , it all comes off in the end .
Sometimes it all works out in circumstances defying belief .
But sometimes it doesn ’ t–with catastrophic consequences .
That is the moment Republican Senators find themselves facing in the attempted heist of the Supreme Court .
McConnell ’ s Senate is confronting two simultaneous pressures : the first , to jam @ @ @ @ @ @ @ Coney Barrett at some point prior to Election Day ; the second , to avoid being shut down by the COVID crisis engulfing top-tier Republicans in Washington , D.C. With only a 12-10 majority on the Senate Judiciary Committee and a 53-47 majority in the body , Republicans can not afford many losses or the plot unravels .
Donald Trump ’ s super-spreader event at the White House Rose Garden to celebrate the judicial coup has already infected Judiciary Committee members Thom Tillis ( R-SC ) and Mike Lee ( R-UT ) .
@ @ @ @ @ @ @ positive on earlier this month .
Though both Judiciary Committee members claim to be improving and now symptom-free , guidelines recommend quarantining for at least 10 days since symptoms first appeared .
But those guidelines are not guarantees of safety : per the CDC , infected individuals can continue to shed the virus in upper respiratory specimens for up to 3 months after the onset of symptoms ( though with reduced viral loads . )
It is unclear whether Senators Lee or Tillis will be in a position to return in time to @ @ @ @ @ @ @ of Congress and staff are increasingly reporting positive tests .
Given the precariousness of their situation , other GOP Senators are taking extraordinary risks : they either refuse to be tested , or refuse to report the testing .
While a few GOP Senators are being tested without incident , many are not .
Iowa ’ s 87-year-old Senator Chuck Grassley refuses to take a COVID test even after direct contact with Senator Lee .
South Carolina Senator Lindsey Graham has forced debate planners to switch formats in his debate with challenger Jaime @ @ @ @ @ @ @ the country–because of his refusal to test for the virus .
Many other GOP senators are refusing to get tested or state the date of their last test , including Senate Majority Leader McConnell himself .
Grassley ’ s case is particularly concerning because he is not only a Senate Judiciary Committee member , but third in line for the presidency in case the worst should befall both the president and the vice-president–an event not wholly outside the realm of possibility .
Some of these senators are using the fact that they have @ @ @ @ @ @ @ and staff as an excuse .
But the reality is that due to lack of universal testing and the Trump administration ’ s refusal to allow contact tracing , it is impossible for them to know if that is the case .
Some younger senators may get COVID and remain symptom-free , yet infectious to others .
A few senators who are also Judiciary Committee members who have been in contact with infected individuals are self-quarantining , including Ted Cruz ( R-TX ) , Ben Sasse ( R-NE ) and James Lankford ( @ @ @ @ @ @ @ for COVID before beginning self-quarantine , but there have been few reports of testing since then , despite the fact that infection may result many days after initial contact .
Senate Republicans are taking an enormous gamble .
They know that just one or two more positive cases among their own could scuttle the entire Barrett nomination .
So they are allowing their members to endanger the whole caucus though insufficient testing or refusal to test , praying that none of them get infected–or that if they do , they can stonewall through @ @ @ @ @ @ @ point before election day .
For now , McConnell is allowing the Judiciary Committee to continue to meet while delaying the Senate proper .
But among the consequences of that decision is that Republicans are preventing passage of a COVID relief bill while continuing to force through the Supreme Court nominee process–a deeply unpopular move that could help seal the fate of the Senate Republican majority .
But if the Senate itself becomes another super-spreader event like the White House Rose Garden event ( and indeed , it appears that Ms. Coney Barrett @ @ @ @ @ @ @ virus to their teachers and classmates this week by going in person , even though online classes were available ) , it could derail the nomination entirely and endanger the lives of everyone involved .
There were already excellent reasons for Senate Democrats to refuse to legitimize the heist of the Supreme Court by simply boycotting the proceedings .
The reckless improvisation of Senate Republicans in risking the health of their colleagues and staff by refusing to test for the virus should be the last straw .
Perhaps they will get away with @ @ @ @ @ @ @ .
But either way , it courts catastrophe .

There comes a point in most heist movies where the thieves’ plan seems to be coming off the rails. Each individual starts improvising and stonewalling in the hope that, with a bit of luck and scamming, it all comes off in the end. Sometimes it all works out in circumstances defying belief. But sometimes it doesn’t–with catastrophic consequences.
That is the moment Republican Senators find themselves facing in the attempted heist of the Supreme Court. McConnell’s Senate is confronting two simultaneous pressures: the first, to jam through the nomination of far-right Amy Coney Barrett at some point before Election Day; the second, to avoid being shut down by the COVID crisis engulfing top-tier Republicans in Washington, D.C.
With only a 12-10 majority on the Senate Judiciary Committee and a 53-47 majority in the body, Republicans cannot afford many losses, or the plot unravels. Donald Trump’s super-spreader event at the White House Rose Garden to celebrate the judicial coup has already infected Judiciary Committee members Thom Tillis (R-SC) and Mike Lee (R-UT). Wisconsin Republican Ron Johnson also reported testing positive on earlier this month. Though both Judiciary Committee members claim to be improving and now symptom-free, guidelines recommend quarantining for at least 10 days since symptoms first appeared. But those guidelines are not guarantees of safety: per the CDC, infected individuals can continue to shed the virus in upper respiratory specimens for up to 3 months after the onset of symptoms (though with reduced viral loads.) It is unclear whether Senators Lee or Tillis will be able to return in time to confirm Barrett. Meanwhile, other members of Congress and staff are increasingly reporting positive tests.
Given the precariousness of their situation, other GOP Senators are taking extraordinary risks: they either refuse to be tested or refuse to report the testing. While a few GOP Senators are being tested without incident, many are not. Iowa’s 87-year-old Senator Chuck Grassley refuses to take a COVID test even after direct contact with Senator Lee. South Carolina Senator Lindsey Graham has forced debate planners to switch formats in his debate with challenger Jaime Harrison–one of the closest Senate contests in the country–because he refuses to test for the virus. Many other GOP senators refuse to get tested or state the date of their last test, including Senate Majority Leader McConnell himself. Grassley’s case is particularly concerning because he is not only a Senate Judiciary Committee member but third in line for the presidency behind Trump if the worst should befall Trump, Pence and Pelosi–an event not entirely beyond the realm of possibility.
Some of these senators are using the fact that they have not been in contact with COVID-positive members and staff as an excuse. But the reality is that due to lack of universal testing and the Trump administration’s refusal to allow contact tracing, it is impossible for them to know if that is the case. Some younger senators may get COVID and remain symptom-free, yet infectious to others. A few senators who are also Judiciary Committee members who have been in contact with infected individuals are self-quarantining, including Ted Cruz (R-TX), Ben Sasse (R-NE), and James Lankford (R-OK). These senators tested negative for COVID before beginning self-quarantine. Still, there have been few reports of testing since then, despite the fact that infection may result many days after initial contact.
Senate Republicans are taking an enormous gamble. They know that just one or two more positive cases among their own could scuttle the entire Barrett nomination. So they are allowing their members to endanger the whole caucus though insufficient testing or refusal to test, praying that none of them get infected–or that if they do, they can stonewall through to take the deciding vote at some point before election day.
For now, McConnell is allowing the Judiciary Committee to continue to meet while delaying the Senate proper. But among the consequences of that decision is that Republicans are preventing passage of a COVID relief bill while continuing to force through the Supreme Court nominee process–a deeply unpopular move that could help seal the fate of the Senate Republican majority.
But if the Senate itself becomes another super-spreader event like the White House Rose Garden event (and indeed, it appears that Ms. Coney Barrett’s children may have spread the virus to their teachers and classmates this week by going in person, even though online classes were available), it could derail the nomination entirely and endanger the lives of everyone involved.
There were already excellent reasons for Senate Democrats to refuse to legitimize the heist of the Supreme Court by simply boycotting the proceedings. The reckless improvisation of Senate Republicans in risking the health of their colleagues and staff by refusing to test for the virus should be the last straw.
Perhaps they will get away with it. Perhaps they won’t. But either way, it courts catastrophe.


washingtonmonthly--2020-10-10--Republicans Have Already Packed the Courts.  It’s Up To Democrats How To Rebalance Them.

The last few days have seen sudden , intense press interest in the question of whether Joe Biden intends to “ pack the courts.
” The question came up at the vice-presidential debate between Vice-President Pence and Senator Harris , and it seems that Biden gets asked about it repeatedly at every press avail .
For their part , Biden and Harris have mostly been playing coy with the answer , insisting that it ’ s an irrelevant question that shouldn ’ t come up until after the election .
It ’ s no great secret why : “ packing @ @ @ @ @ @ @ currently leaning toward Biden , while committing against it would infuriate progressives who fear that a far-right Supreme Court would reverse a century of hard-won victories as well as stymie all future attempts at progressive legislation .
The problem , however , is that the entire conversation is in bad faith .
It is Republicans who have spent the last six years “ packing ” the courts .
Republicans in the Senate mounted a historic blockade of President Obama ’ s judicial nominees during the final two years of his second term , @ @ @ @ @ @ @ backlogs in cases , all in the hopes of leaving them open for a Republican president .
Republican Senate Leader McConnell has been laughing about it for years , considering it finest accomplishment .
Most crucial was the refusal by McConnell to even allow a hearing for Obama ’ s Supreme Court nominee Merrick Garland , using the fig leaf justification that it was during the 2016 election year–only to attempt to rush through a far-right justice to replace Ruth Bader-Ginsburg literally just days before the 2020 election .
Hypocrisy is a mainstay @ @ @ @ @ @ @ the brazenness of this case by Republican Senators like Lindsey Graham is remarkable .
The result of the Republican strategy has been a historic packing of the courts by ultra-conservative activist judges .
As of this writing , Trump and the Republican Senate have confirmed an astonishing 218 federal judges , mostly conservative white men , many of them deeply unqualified far-right activists with little judicial experience .
These judges have altered the balance not only of the Supreme Court , but also myriad lower circuit courts .
These judges are not just @ @ @ @ @ @ @ committed Republican partisans , approved by the arch-right Federalist Society , and subscribe to a view of the Constitution in Exile premised on the belief that essentially every progressive reform since the New Deal and even Teddy Roosevelt has been an unconstitutional infringement on corporate and property rights .
It is a degree of far-right judicial radicalism that most Americans barely begin to appreciate , only because the cases challenging long settled law have only just begun to wind their way through the courts .
The other important context for this Republican court-packing @ @ @ @ @ @ @ control national policy even as conservatives lose the ability to win elections nationally .
Conservatives already govern illegitimately through an array of anti-democratic structures that make white exurban conservative voters count much more than urban liberal voters and people of color .
Many of these structures were explicitly set up by the Founders or in the Jim Crow era to benefit Slave States and former Confederate States .
The electoral college has allowed Republicans to control the White House for 12 of the last 20 years despite winning the popular vote only once @ @ @ @ @ @ @ presidential elections toward the interests of more conservative-leaning voters in “ swing ” states .
The Senate is controlled by a Republican “ majority ” despite the fact that Democratic Senators represent 15 million more Americans than Republican Senators do .
State legislatures and House seats are gerrymandered such that Republicans dominate many state legislatures despite losing the statewide vote , and control more House seats than they would if districts were drawn across the country in non-partisan fashion .
That ’ s on top of active voter suppression efforts in many states @ @ @ @ @ @ @ voices of young people , urban progressives and people of color .
The fact that a president elected by minority vote , aided by a Senate representing a minority of Americans , in a system already designed to advantage conservative voices over liberal ones , should be able to rig the courts for decades with judges who will not only thwart future legislation but reverse hard-won gains , is an absurd insult to democracy .
The courts have already been packed .
If Barrett is confirmed to the Supreme Court , they will @ @ @ @ @ @ @ service of a revanchist apartheid regime designed to overrule America ’ s growing progressive majority and prevent it from solving pressing crises like inequality , corporate consolidation and climate change .
The question for Democrats and a potential Biden/Harris administration is not whether to “ pack ” the Courts ; they have already been packed .
The question is how to rebalance them .
Biden put it succinctly today when he said that “ the only court packing going on right now is with Republicans packing the court.
” Rebalancing the court could @ @ @ @ @ @ @ adding justices to both the Supreme Court and the lower courts , something that has been done many times in American history .
This solution is Constitutional and easy to enact by a simple majority .
Many fear that this could lead to runaway partisan court-stacking in future years , but even so it would only be possible when one party controls the White House , Senate and House .
As long as the courts remain key to legislation , it seem reasonable that a party that wins all three should be able @ @ @ @ @ @ @ the other side takes similar control .
If Republicans fear that they will never again control all three , then they may wish to attempt to cater their politics toward winning national majorities instead of extremist minorities .
Other more complicated solutions involve potential term limits for justices or judicial rotations .
All of these ideas and more should be on the table as a way to rebalance the judiciary to fix conservative court packing .
But Republicans should not be allowed to get away with packing the courts with extremists , then @ @ @ @ @ @ @ the ones with radical proposals .
And the press should not get sucked into being willing accomplices .
Whatever Democrats must do to rebalance the courts will be an important discussion for after the election , should Democrats be successful .
For now , the focus should remain on the shameful methods by which the radical conservative movement is attempting to further pack the courts at this very moment .

The last few days have seen sudden, intense press interest in the question of whether Joe Biden intends to “pack the courts.” The question came up at the vice-presidential debate between Vice-President Pence and Senator Harris, and it seems that Biden gets asked about it repeatedly at every press avail. For their part, Biden and Harris have mostly been playing coy with the answer, insisting that it’s an irrelevant question that shouldn’t come up until after the election.
It’s no great secret why: “packing” the court might scare off moderates currently leaning toward Biden, while committing against it would infuriate progressives who fear that a far-right Supreme Court would reverse a century of hard-won victories as well as stymie all future attempts at progressive legislation.
The problem, however, is that the entire conversation is in bad faith. It is Republicans who have spent the last six years “packing” the courts. Republicans in the Senate mounted a historic blockade of President Obama’s judicial nominees during the final two years of his second term, resulting in shortages on federal benches and backlogs in cases, all in the hopes of leaving them open for a Republican president. Republican Senate Leader McConnell has been laughing about it for years, considering it finest accomplishment. Most crucial was the refusal by McConnell to even allow a hearing for Obama’s Supreme Court nominee Merrick Garland, using the fig leaf justification that it was during the 2016 election year–only to attempt to rush through a far-right justice to replace Ruth Bader-Ginsburg literally just days before the 2020 election. Hypocrisy is a mainstay of American politics, but even so the brazenness of this case by Republican Senators like Lindsey Graham is remarkable.
The result of the Republican strategy has been a historic packing of the courts by ultra-conservative activist judges. As of this writing, Trump and the Republican Senate have confirmed an astonishing 218 federal judges, mostly conservative white men, many of them deeply unqualified far-right activists with little judicial experience. These judges have altered the balance not only of the Supreme Court, but also myriad lower circuit courts. These judges are not just temperamentally and philosophically conservative: most are committed Republican partisans, approved by the arch-right Federalist Society, and subscribe to a view of the Constitution in Exile premised on the belief that essentially every progressive reform since the New Deal and even Teddy Roosevelt has been an unconstitutional infringement on corporate and property rights. It is a degree of far-right judicial radicalism that most Americans barely begin to appreciate, only because the cases challenging long settled law have only just begun to wind their way through the courts.
The other important context for this Republican court-packing is that it reflects an attempt to control national policy even as conservatives lose the ability to win elections nationally. Conservatives already govern illegitimately through an array of anti-democratic structures that make white exurban conservative voters count much more than urban liberal voters and people of color. Many of these structures were explicitly set up by the Founders or in the Jim Crow era to benefit Slave States and former Confederate States. The electoral college has allowed Republicans to control the White House for 12 of the last 20 years despite winning the popular vote only once during that time–and the process itself warps presidential elections toward the interests of more conservative-leaning voters in “swing” states. The Senate is controlled by a Republican “majority” despite the fact that Democratic Senators represent 15 million more Americans than Republican Senators do. State legislatures and House seats are gerrymandered such that Republicans dominate many state legislatures despite losing the statewide vote, and control more House seats than they would if districts were drawn across the country in non-partisan fashion. That’s on top of active voter suppression efforts in many states that work to shut out the rising voices of young people, urban progressives and people of color.
The fact that a president elected by minority vote, aided by a Senate representing a minority of Americans, in a system already designed to advantage conservative voices over liberal ones, should be able to rig the courts for decades with judges who will not only thwart future legislation but reverse hard-won gains, is an absurd insult to democracy. The courts have already been packed. If Barrett is confirmed to the Supreme Court, they will have been intolerably packed, in the service of a revanchist apartheid regime designed to overrule America’s growing progressive majority and prevent it from solving pressing crises like inequality, corporate consolidation and climate change.
The question for Democrats and a potential Biden/Harris administration is not whether to “pack” the Courts; they have already been packed. The question is how to rebalance them. Biden put it succinctly today when he said that “the only court packing going on right now is with Republicans packing the court.”
Rebalancing the court could take many forms. The simplest is adding justices to both the Supreme Court and the lower courts, something that has been done many times in American history. This solution is Constitutional and easy to enact by a simple majority. Many fear that this could lead to runaway partisan court-stacking in future years, but even so it would only be possible when one party controls the White House, Senate and House. As long as the courts remain key to legislation, it seem reasonable that a party that wins all three should be able to control the courts as well until the other side takes similar control. If Republicans fear that they will never again control all three, then they may wish to attempt to cater their politics toward winning national majorities instead of extremist minorities.
Other more complicated solutions involve potential term limits for justices or judicial rotations. All of these ideas and more should be on the table as a way to rebalance the judiciary to fix conservative court packing.
But Republicans should not be allowed to get away with packing the courts with extremists, then scaring voters into thinking that Democrats are the ones with radical proposals. And the press should not get sucked into being willing accomplices. Whatever Democrats must do to rebalance the courts will be an important discussion for after the election, should Democrats be successful. For now, the focus should remain on the shameful methods by which the radical conservative movement is attempting to further pack the courts at this very moment.