Democratic “Quality Candidates”

October 25, 2022

[Audio version will resume next edition.]

          On Monday, more than seven hundred readers and supporters of Today's Edition Newsletter, Chop Wood, Carry Water, and Markers For Democracy donated over $75,000 to support Cheri Beasley in her effort to capture the US Senate seat vacated by Richard Burr in North Carolina. Several hundred readers joined via Zoom and were treated to a compassionate, charismatic, determined leader who seeks to represent all citizens of North Carolina. If Cheri Beasley represents the future of the Democratic Party, we should all feel confident about our prospects in the short and long term.

          Republicans are wringing their hands about GOP “candidate quality”—code for extremist, inexperienced, ill-informed, and out-of-touch candidates. In contrast, Democrats have “quality candidates.” Cheri Beasley (like other Democratic Senate candidates) has a wealth of experience—including as a North Carolina Supreme Court justice, a court of appeals and district court judge, a public defender, and as a partner in a global law firm. Her opponent (Ted Budd) is a MAGA extremist who owns a gun shop and advertises insurance for defendants accused of domestic violence. Budd voted against certifying the electoral count as a congressman and continues to support Trump’s election denial claims. We need Cheri in the Senate to help protect voting rights, reproductive liberty, Social Security, Medicare, the environment, and much more.

          Cheri’s campaign represents one of four that holds out hope for a Democratic upset. There is still time to help Cheri Beasley’s campaign. Visit Women for Beasley and click on “Volunteer” to join in canvassing, phone banking, texting, and more. Cheri is effectively tied with her opponent—but can win if Democrats and unaffiliated voters turn out in record numbers! Let’s help Cheri make it over the line for all citizens of North Carolina—and America!

The Supreme Court’s legitimacy crisis deepens dramatically.

          The Supreme Court’s legitimacy with the American people is threadbare. A once-trusted institution has slipped to all-time lows in confidence among Americans. The Court’s anemic confidence rating (25%) is about to dip lower based on two new developments on Monday. But let me skip to the end before discussing the details: The only way to end the death spiral of the Court is to expand the number of justices and impose a congressionally mandated code of ethics on the Court. We can do that only if Democrats control Congress and the presidency—and have the courage ban the filibuster and pass legislation to expand and reform the Court. Let’s look at the two developments.

          Justice Thomas grants stay of order requiring Lindsey Graham to testify. On Monday, Clarence Thomas granted an emergency stay of a Fulton County grand jury subpoena compelling the testimony of Senator Lindsey Graham. See Huffington Post, Justice Thomas Temporarily Blocks Graham Testimony In Georgia. On the merits, the stay was unwarranted and baseless. An opinion by a three-judge panel of the 11th Circuit Court of Appeals (with two Trump judges) rejected Graham’s request for a stay in an opinion that concluded the areas of inquiry at issue under the subpoena “could not qualify as legislative activities under any understanding of Supreme Court precedent.”

          Thomas’s grant of the stay was not only wrong, but his refusal to recuse himself from the matter violated federal law. As explained by Professor Tribe,

Justice Thomas violated 28 USC 455, requiring any "justice" to recuse when his or her “impartiality might reasonably be questioned” or his or her “spouse is known by the justice to have an interest that could be substantially affected by the outcome.”

          Thomas’s “impartiality might reasonably be questioned” because the subpoena relates to Trump’s efforts to overturn the 2020 election—an effort that Ginny Thomas was intimately involved in. Under Section 455, it does not matter whether Thomas believes he can act impartially; the test is whether others might “reasonably question” his impartiality. In refusing to recuse himself, Thomas has demonstrated utter contempt for the legitimacy of the Court and the American people.

          It does not matter whether Thomas’s decision to grant a stay was right or wrong, or whether it was “on the merits” or merely “an administrative stay.” What matters is that Thomas has no right to participate in any aspect of Graham’s appeal.

          So, what can be done? Thomas is subject to impeachment and removal, but it is unlikely that either will happen—even in a Congress controlled by Democrats. (Conviction requires a 2/3 vote in the Senate.) It is time for other justices on the Court to begin reprimanding Thomas by name in their opinions in matters where Thomas refuses to recuse himself. Ideally, that reprimand would come from Chief Justice Roberts, but he has demonstrated leadership ability comparable to the negative vacuum energy of empty space. So, it is up to other members of the Court to include a statement in their opinions to the effect that Justice Thomas has illegally participated in the Court’s decision and his vote and opinions should be disregarded.

          I understand the objections to my proposal, so there is no need to write to me—unless you include a remedy that will bring pressure on Thomas (and other justices) to begin comporting themselves in accord with the canons of ethics applicable to every other judge and justice in the US. The Supreme Court is now effectively lawless with respect to conflicts. The justices must begin to police themselves until Congress can impose a code of ethics.

          Justice Alito lied to Ted Kennedy about his view of Roe v. Wade. The second development regarding the Court’s illegitimacy is a shocking disclosure regarding Justice Alito’s lies to obtain Senator Kennedy’s vote for confirmation of Alito’s nomination. In a forthcoming book on Ted Kennedy’s career, the author reveals that Alito repeatedly assured Kennedy that, if confirmed, he would respect the precedent of Roe v. Wade and the right of privacy on which that decision rests. See NYTimes, Alito Assured Ted Kennedy in 2005 of Respect for Roe v. Wade, Diary Says. Add Justice Alito to the list of justices who lied their way onto the Court—a list that includes Kavanaugh, Gorsuch, and Barrett.

          As reported in the Times, Alito made the following statements to Kennedy about Roe v. Wade:

          I am a believer in precedents. People would find I adhere to that. . . . I recognize there is a right to privacy. I think it’s settled.

          When Senator Kennedy pressed Alito about a position paper Alito wrote as a lawyer in the DOJ in 1985 in which he “boasted of his opposition to Roe,” Alito assured Kennedy that he was seeking a promotion and wrote what he thought his bosses wanted to hear, asserting, “I was a younger person. I’ve matured a lot.”

          What Alito did not tell Senator Kennedy that “Roe was egregiously wrong from the start,” or that Roe’s rationale relying on the right of privacy was “exceedingly weak.”

          Given that four of the five justices in the reactionary majority lied their way onto the Court by deceiving Congress about their views of Roe v. Wade, it can be no grounds for expanding the Court that it will “destroy its legitimacy.” It’s too late for that.  

Russia claims Ukraine is planning use of “dirty bomb”—signaling Russia’s intent to do so.

          In an ominous development, Russia’s Defense Minister, Sergei Shoigu called his counterparts in the US, UK, France, and Turkey to accuse Ukraine of preparing a “dirty bomb” for use in Ukraine (which makes no sense). A “dirty bomb” is a conventional weapon that spreads radioactive contamination. See The Atlantic, Russia’s ‘Dirty Bomb’ Ploy. As explained in The Atlantic, Russia would then, presumably, use the “false flag” of a Ukrainian dirty bomb to justify its use of tactical nuclear weapons (i.e., low yield “battlefield” nuclear weapons.

          The US, UK, and France have told Russia they aren’t falling for Russia’s obvious deception—which may be enough to remove any motivation for Russian to fabricate an excuse for a retaliatory nuclear strike. And the highly regarded Institute for the Study of War has concluded that “the Kremlin is unlikely to be preparing an imminent false-flag dirty bomb attack.”

          Meanwhile, Democratic Progressive Caucus chose this awkward moment to send President Biden a letter urging him to lean on Ukraine to negotiate a settlement with Russia. See WaPo, Liberal lawmakers urge Biden to shift Ukraine strategy. The thirty Democrats asked Biden to condition further aid on a “proactive diplomatic push, redoubling efforts to seek a realistic framework for a cease fire.” Supporting efforts to negotiate peace is always a fine idea. Conditioning further military aid on an effective surrender while Russia is simultaneously attempting to freeze the Ukrainian civilian population and threatening to use a dirty bomb is an ill-timed, ill-conceived, and callous suggestion. The progressives who sent the letter quickly backtracked after a severe backlash among other Democrats. If the Progressive Caucus has any sense, it will drop the matter and let Joe Biden conduct the nation’s foreign policy.

Concluding Thoughts.

          Every major media outlet led its Monday coverage with pictures and videos of self-appointed, vigilante “poll watchers” in Arizona. Two of those poll watchers were wearing combat gear and bearing assault rifles. Those efforts are naked voter intimidation and must be prosecuted by the DOJ. On Monday, Merrick Garland said the DOJ would not tolerate voter intimidation anywhere in America. See CNN, Attorney General Merrick Garland vows Justice Department 'will not permit voters to be intimidated' ahead of midterms. Good. Let’s hope that arrests happen in the next twenty-four hours and that the vigilantes are brought to trial ASAP—to deter others from similar conduct.

          But I believe the media is amplifying the actions of a handful of lunatics far beyond the actual threat posed and possibly dissuading voters from going to the polls or using dropboxes. Please don’t get me wrong: The actions are reprehensible without regard to the number or scale of the threats. But the media is helping a small cohort of bad actors to spread fear and intimidation far out of proportion to the actual threat.

          Perspective is always important. MSBNC devoted the first twenty minutes of one of its primetime broadcasts to the instances of poll-watching vigilantes in Maricopa County, Arizona. Although it is not clear from the reporting, it appears that there have been about a half-dozen such incidents. For sake of argument, let’s say that there are a dozen locations where vigilante poll-watchers are currently attempting to intimidate voters. By comparison, how many polling locations are there in the US?

          Answer: In 2018, there were 230,000 polling locations in the US (not including drop boxes). Thus, based on media reports to date, 99.99% of polling places are free of voter intimidation—a fact that is obscured by the disproportionate attention given by MSNBC and other media outlets, which is exactly the intended effect of the two combat clad vigilantes. They are leveraging the media’s infatuation with pictures and video to exaggerate their meager presence far beyond their actual threat.

          It is safe to vote in America, and we should not unwittingly spread the message that it is not. Where voter intimidation is taking place, immediately call law enforcement and report the tactics to the poll workers. Based on citizen complaints, the vigilantes in Arizona are currently being investigated by the FBI and DOJ. Being investigated by the FBI has a way of grabbing your attention and causing some serious soul-searching about the propriety of your actions.

          And if you find yourself ready to send an angry reply to my statement that “It is safe to vote in America,” please re-read the two opening paragraphs in Concluding Thoughts. Voter intimidation is wrong, illegal, and should be prosecuted, period. Exaggerating the threat is a self-defeating strategy. Let’s stick to the facts.

          Talk to you tomorrow!