A brief reprieve.

April 20, 2023

          Justice Alito issued an order extending until Friday the administrative stay of Judge Kacsmaryk’s ruling revoking the FDA’s approval of mifepristone. The delay suggests that at least one justice on the Supreme Court is writing an opinion regarding the DOJ’s request for a stay pending determination of the merits. The correct outcome is for the Court to dismiss the lawsuit because the plaintiffs lack standing to challenge the FDA’s approval of mifepristone in 2000. See Ian Millhiser, Vox, The Court can’t seem to figure out how to decide one of the easiest cases it’s ever had to consider. Per Millhiser,

[T] hese plaintiffs do not raise an even remotely plausible claim that they have standing. Their primary argument is that, if mifepristone stays on the market, patients who were prescribed mifepristone by other doctors might experience complications, which might cause them to switch doctors and seek care from the plaintiff physicians. This then might cause the plaintiff doctors to divert their attention from other patients, or it might cause them to provide treatments to their new patients that they would prefer not to provide.

          As noted by Millhiser, this chain of hypothetical “mights” is not the type of injury required by the Supreme Court to establish a future harm. (Under Clapper v. Amnesty International (2013), plaintiffs must show that a future injury is “certainly impending.”)

          So, is the delay worrisome? It can be read either way—either as an effort to buy time for an opinion to uphold some aspect of Kacsmaryk’s decision or for an opinion to kill the lawsuit. The result will likely be a hot mess of dueling opinions that will circumscribe the debate over reproductive liberty in the US Supreme Court in the future. The Court should not be deciding the merits on a motion to stay but should instead freeze Kacsmaryk’s order while the Fifth Circuit and Supreme Court hear the case on full briefing.

Federal Judge allows Judiciary Committee to question former Manhattan prosecutor.

          Federal district court Judge Mary Kay Vyskocil issued a 25-page order in which she vigorously rejected D.A. Bragg’s claim that Jim Jordan is attempting to interfere in the prosecution of Donald Trump. The order is here: (Bragg v Jordan). Judge Vyskocil orders former Manhattan prosecutor Mark Pomerantz to appear before the Judiciary Committee for testimony.

          Vyskocil spent most of her order detailing disclosures already made by Mark Pomerantz in his book and lauding the power of Congress to conduct hearings for legislative purposes. She gives only glancing consideration to Bragg’s contention that the hearing will interfere with his prosecution of Donald Trump and impinge on the police powers of the state of New York. Vyskocil writes,

There is no question that New York, a sovereign state in our federal system, has authority to enforce its criminal laws through its local prosecutors. The Court is mindful of potential federalism concerns. However, the Court rejects the premise that the Committee’s investigation will interfere with DANY’s ongoing prosecution. The subpoena of Pomerantz, who was a private citizen and public commentator at the time Bragg indicted Trump, will not prevent or impede the criminal prosecution that is proceeding in New York state court.

          Although Vyskocil returns to the topic later in her order, the above is the full extent of her analysis. Of course, the fact that Pomerantz was a Manhattan prosecutor who worked on the investigation of Donald Trump gives him access to plenty of internal information that should be shielded from public inquiry.

          Of course, Mark Pomerantz disclosed plenty of internal discussions and shared criticisms of Alvin Bragg’s prosecutorial decisions. None of this is Bragg’s fault. He is burdened with a supercharged political environment and the unenviable position of having indicted Trump first. Bragg has appealed Judge Vyskocil’s order.  

Reflecting on the Fox/Dominion settlement.

          Most readers expressed disappointment with the Fox/Dominion settlement. A few sent emails expressing frustration to the point of anger. Those reactions are understandable because it feels like Fox got away with lying. It did not. We cannot discount the amount of the settlement—three-quarters of a billion dollars. While that amount is frequently compared to the larger judgment after the trial entered against Alex Jones of InfoWars, the Fox settlement is the largest in history by a sizable amount.

          Moreover, Fox is not out of legal peril yet. The Guardian details the ongoing lawsuits relating to Fox’s 2020 election coverage in its article, The legal problems still overshadowing Fox News after its Dominion settlement. Those suits include the Smartmatic $2.7 billion defamation case, a suit by former Fox producer Abby Grossberg claiming the company encouraged her to lie in her deposition, a shareholder derivative lawsuit against Fox’s board of directors for failing to exercise oversight of the news operation. There is also a nasty lawsuit in Australia by Lachlan Murdoch against news outlet Crikey, which described the Murdoch family as an “unindicted co-conspirator” in the January 6^th insurrection.

           Finally, despite the litigation success of Dominion in pretrial skirmishes, it faced a tough burden of proof in establishing “actual malice.” It could have recovered nothing—a result that would have been bad for democracy. Instead, Fox paid the largest settlement ever after a punishing public spectacle that put its business model on trial. For a measured and hopeful view of the settlement, see Dennis Aftergut in Salon, Fox News caves, and the real winner isn’t Dominion — it’s democracy and the rule of law.

          This battle isn’t over. It has just begun! Keep the faith!

How to help fight disinformation after the Dominion settlement.  

          Reader Jim S. with 31^st Street / Swing Left asked me to invite readers of this newsletter to a session with Dan Pfeiffer and Tara McGowan titled, The Fight Against MAGA Media: Mobilizing the Grassroots. The event is on April 26, 2023, at 9:00 AM Pacific / 12:00 Noon Eastern. The event is co-sponsored by two dozen grassroots organizations committed to fighting the wave of disinformation from right-wing media. Register here: Meeting Registration - Zoom

McCarthy’s fake budget proposal.

          A federal budget is a massive undertaking. It proposes allocation of trillions of dollars across thousands of agencies and programs. The budget proposal made by President Joe Biden on March 13, 2023, is 1,345 pages in length. As the US approaches its debt limit in June 2023, Speaker Kevin McCarthy demands budget cuts in exchange for raising the debt limit. On Tuesday, he released his most detailed proposal yet. It could have fit on the back of a cocktail napkin. Despite its 320-page length, most of McCarthy’s proposed budget bill is devoted to reciting language from Biden legislation that would be repealed under McCarthy’s proposal.

          McCarthy’s budget is little more than a series of hostage-taking demands. For example, per Talking Points Memo, McCarthy proposes to

repeal the green energy tax credits passed in the Inflation Reduction Act, add more requirements to benefit programs like SNAP (formerly known as food stamps), cut money allocated to the Internal Revenue Service (IRS) and rescind the Biden administration’s order forgiving student debt.

          More to the point, McCarthy does not propose specific cuts. Instead, he proposes general cuts in spending to be determined by various House committees. What could go wrong?

          McCarthy’s proposal is unserious and indicates his inability to govern his caucus. See Talking Points Memo, Where Things Stand: Biden Shreds McCarthy’s Performative Debt Limit Bill.

Update in Oklahoma.

          I noted yesterday that several county commissioners in Oklahoma’s McCurtain County wistfully yearned for the days of lynching and mused about killing and burying journalists. One of the commissioners has resigned. See MSBNC News, Oklahoma county commissioner resigns after being recorded talking about lynching Black residents.

          If you want to write to the two reporters from the McCurtain Gazette-News, the mailing address for the print-only newspaper is PO Box 179, Idabel, OK 74745. The reporters who broke the story are Chris Willingham and Bruce Willingham.

The importance of voter ID going into 2024.

          A favorite tactic of MAGA extremists is to create unnecessary obstacles to voting, including limiting the number of types of identification that can be used to register or vote. In many states, voters can use a government-issued driver’s license or a gun permit to vote but cannot use student IDs or government benefits cards. A non-partisan organization whose sole mission is to help voters navigate rules regarding voter ID and obtain an acceptable ID for voting is VoteRiders.

          VoteRiders issued a report entitled, New Analysis: Millions of Americans Lack ID Required to Vote. The key findings include the following:

• As of 2020, nearly 29 million voting-age U.S. citizens did not have a non-expired driver’s license, one of the two types of IDs accepted by all 36 states with voter ID laws as of 2023.

• More than 11 million young people (18-29) did not have a current driver’s license.

• Members of underrepresented racial and ethnic groups (Black non-Hispanic Americans and Hispanic Americans in particular) were less likely to have a current driver’s license or other government-issued photo ID.

• The analysis found a strong relationship between income and lack of a driver’s license, with adult Americans earning less than $30,000 lacking a driver’s license

          So, when states pass voter ID laws requiring driver’s licenses to vote, those legislatures target young, diverse, poor voters by creating obstacles that disproportionately affect them. Check out the report and VoteRiders. It is a great organization doing foundational work necessary to help all Americans vote. If you are involved in grassroots efforts to register voters, VoteRiders should be on your speed dial!

More ways to help Donna Deegan in her bid to become mayor of Jacksonville, Florida.

          I wrote yesterday about Donna Deegan, the Democratic candidate in the general election to become Jacksonville, Florida’s mayor. The election is scheduled for May 16^th.

          PostCardsToVoters contacted me to help recruit volunteers for a postcard campaign in Support of Donna Deegan. Help if you can! The note I received is below:

Would you be able to add tonight that PostcardsToVoters.org has launched postcards for Donna Deegan? There are tons of addresses. Every postcard could be a vote! To join PTV, people can text “join” to Abby the Bot at 484-275-2229 or email join@tonythedemocrat.org. If you have already joined, then just text Abby to get addresses & script!

Concluding Thoughts.

          Reader Lee Fadem passed away earlier this week. Lee was 102 years old. He was a true American hero in WWII, a loving father, and an upstanding citizen in peace. If you aren’t familiar with Lee from my prior newsletters, take a moment to view his contribution to an oral history project regarding WWII. The Digital Collections of the National WWII Museum : Oral Histories | Lee Fadem.

          It was an honor to have Lee as a reader. His son, Steve, reports that Lee would forward the newsletter several times a week with recommended articles to read—a practice Lee continued until the end of his life. I had the privilege of speaking to Lee on two occasions. Even at 100 and 101, he was concerned and focused on the threat to democracy in America. He was engaged, cared about current events, and followed the news closely.

          Lee was remarkable in that regard. Many of us find that we need to occasionally look away from the news in disgust, exhaustion, or momentary despair. Lee’s wartime service included an eyewitness experience of the most devastating attacks in WWII. He had a long-term perspective that allowed him to see current events in a broader historical arc. As we navigate the choppy waters of the next presidential election cycle, let’s maintain that longer-term perspective.

          Yes, times are tough and may get worse, but we have endured greater challenges as a nation and survived. There are many among us like Lee. They fought in war or marched in civil rights protests in the old South or were on the front lines in the battle for equal rights for women and LGBTQ people. They serve as daily reminders that we can rise to the challenges we face. We should emulate them, honor them, and remember them. But most of all, we should be inspired by them!

          Talk to you tomorrow!