Promises to keep.

January 27, 2022

[Audio version here]

          NBC News reported on Wednesday that Supreme Court Justice Stephen Breyer would retire at the end of the current term in June 2022. Although Justice Breyer has not confirmed the report, other media outlets have confirmed his impending retirement through independent sources. Political commentators immediately began discussing potential replacements, but it is appropriate to reflect on Justice Breyer’s legacy. Unlike other Justices, Breyer’s legacy does not depend on groundbreaking majority opinions or fiery dissents. Breyer was a judicial pragmatist who saw value in leavening the worst instincts of other Justices and preserving partial victories in the face of defeat. As Ian Millhiser writes in Vox, Breyer learned an important lesson from his mentor Senator Ted Kennedy:

If you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first.” Breyer said during a 2020 National Asian Pacific American Bar Association “Every dissenting opinion is a failure.”

          Ian Millhiser notes that Breyer’s effort to build consensus in the face of defeat preserved the essential parts of the Affordable Care Act, affirmative action, and reproductive rights. He angered some liberals by adopting a practical approach to First Amendment challenges to religious displays on public property. Breyer wrote that the Constitution’s protection of religious freedom sought “to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.” There is much more to Breyer’s legacy, and he deserves to be remembered as a Justice who brought a thoughtful, honest, and fair approach to every issue before him. I recommend Ian Milhiser’s excellent discussion in Vox, “Breyer’s best work was often the work you never knew about.”

          President Biden promised during his campaign to appoint a Black woman to the Supreme Court. His press secretary, Jen Psaki, said that Biden “stands by his pledge”—a delicate way of confirming Biden’s promise given that Justice Breyer has not made an official announcement regarding his retirement.

          Senator Schumer said that the Senate would move with “all deliberate speed” in confirming any nominee to replace Justice Breyer. Democrats are still angry over the unseemly and extra-constitutional haste of Amy Coney Barrett’s confirmation only ten days before the 2020 election. Democrats would like to see a confirmation process for a Biden nominee proceed as quickly. That is not likely to happen. Instead, we should prepare ourselves for Republicans to “slow-walk” the confirmation of Breyer’s replacement. Senator Susan Collins has already said, “the Senate shouldn’t rush the process to replace Justice Breyer.”

          Many Democrats assume that the nomination can be pushed through at breakneck speed because they hold a 50+1 majority in the Senate. Not so. The problem is that the Judiciary Committee is split 11-11 between Democrats and Republicans. It operates under a power-sharing agreement that gives Democrats the chair of the Committee, but the rules for sending a nomination to the floor still apply. At least one Republican must join all Democrats on the Committee to send the nomination to the floor, at which point confirmation can be granted on a majority vote of 51 Senators (including V.P. Harris, if necessary).

          The eleven Republicans serving on the Judiciary Committee are Chuck Grassley, Lindsey Graham, Mike Lee, John Cornyn, Ted Cruz, Ben Sasse, Josh Hawley, Tom Cotton, John Kennedy, Thom Tillis, and Marsha Blackburn. How will they vote? While it is too early to answer that question, every Republican Senator on the Judiciary Committee voted to acquit Trump of inciting insurrection—with the exception of Ben Sasse.

           If the Judiciary Committee does not send the nomination to the Senate floor for a vote, Majority Leader Chuck Schumer can force the nomination to the floor. But if Schumer takes that route, the nomination is subject to a 60-vote minimum to cut off debate—also known as “the filibuster.” I am not an expert in Senate parliamentary procedure, so my explanation for the above relies on the reporting by Philip Elliot in Time, “How McConnell Could Block Biden’s Supreme Court Nominee.”

          To state the obvious, it would be an outrage of enormous proportions if Republicans refused to send the nomination to the floor for a vote. But at this point, we can’t rely on Republicans to play by the rules. We may need to ratchet up the pressure on Republican Senators—and the two Democrats who support the filibuster—to allow Joe Biden to exercise the right granted to him in the Constitution to appoint Supreme Court Justices.

          I hope that the nomination sails through the confirmation process, and the above explanation is annoying detail that should have been left unsaid. Indeed, some commentators predict that conservatives will not engage in a protracted fight over Breyer’s replacement because the nominee will not change the balance of power on the Court. See Politico, “Why not to expect a scorched earth fight over Breyer’s replacement.” But if the nomination stalls, the above explanation tells you what you need to know.

The phony electors’ fake excuses.

          As the DOJ begins to investigate the “fake electors” who sent falsified electoral certificates to Congress, some of those electors are putting forward a defense to their (likely) criminal offenses—a defense that doesn’t pass the smell test. At least one elector has claimed that the fake certificates were meant to serve as “backups” or “alternatives” if the true electoral ballots were rejected by Congress. That defense is dismantled by Philip Rotner in his article in The Bulwark, “DOJ Is Investigating the Phony Electors.” As Rotner explains,

The plan was to affirmatively use the phony certifications, not to file them away for a rainy day. The fake documents were to be the cause of rejecting the real documents, not the effect. The plan was set out in the clearest possible language in the infamous Eastman memo. . . .

          The “infamous Eastman memo” explains that “7 states would send dual slates of electors [and] that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.” So, by fabricating false electoral certificates, the phony electors intended to impede the operation of the Constitution. If that’s not a crime, it is hard to see what would be. Let’s hope that the DOJ moves with all deliberate speed to indict the phony electors and those who encouraged and coordinated their efforts.

Virginia Governor Glenn Youngkin’s spectacularly bad start.

          Republican Glenn Youngkin was promoted as the future of a GOP that distanced itself from Trump but adhered to all of Trump’s mean-spirited, ignorant policies. Everything Youngkin has attempted in his first weeks in office has been a disaster. In a noteworthy debacle, Youngkin established a “tip line” to report teachers who dared to discuss America’s history of slavery. There were two problems with Youngkin’s plan. First, it is eerily similar to the tactics used by the East German secret police—the Stasi—to encourage family members and neighbors to “snitch” on one another for disloyalty to the East German regime. That alone should have counseled against the tip line, but would have required Youngkin to be (a) aware of the ugly history of the Stasi, and (b) self-aware enough to understand the parallels.

          I will give Youngkin the benefit of the doubt and assume he didn’t have time to study history because his curriculum was crammed with economics and finance classes necessary to become the CEO of a hedge fund. But any fool could have seen the second reason the tip line was a bad idea: civil disobedience. The tip line was overwhelmed with tips that reported such offenses as “My teenage son came home from school and said his teachers are attempting to teach.” See HuffPo, “Glenn Youngkin Sets Up Tip Line To Report Teachers And You Know What Pranksters Did Next.” Youngkin apparently doesn’t follow the national news because the same thing happened when Texas set up a tip line to report Uber drivers who gave rides to women heading to Planned Parenthood. Glenn Youngkin may have been a business success, but he has no idea how to govern—just like Trump!

Defenses against voter suppression after Republicans block voting rights legislation.

          I continue to receive worried emails from readers about voter suppression efforts and election nullification by state legislatures after Republicans blocked voting rights legislation in Congress. I will discuss election nullification in a future edition, but efforts to reform the Electoral Count Act are an encouraging sign that Congress will not countenance efforts by state legislatures to overturn elections.

          As to voter suppression, we should take seriously the efforts by GOP-controlled legislatures to create obstacles to the ballot box. But the courts and the Department of Justice provide some protection against voter suppression efforts. If my previous newsletters have not calmed your panic, I recommend Jennifer Rubin’s op-ed in The Washington Post, “Congress failed on voting rights. But we still have the Justice Department and courts.” Rubin does a great job of summarizing court victories and enforcement initiatives by the DOJ. Although not a complete answer, those efforts should provide some comfort that the rule of law still prevails.

Concluding Thoughts.

          As I was researching Justice Breyer’s judicial legacy for this newsletter, I was struck by this line in a Washington Post article:

A January poll by NBC News and the Wall Street Journal found that Republicans have a double-digit election enthusiasm advantage, with 61 percent of Republicans saying they are very interested in the upcoming midterms compared with 47 percent of Democrats.

          While we should never overweight a single poll, and recognizing that many mid-term races haven’t started, the poll was disquieting. It was disquieting partly because, as Stephen Colbert would say, it “has the feel of truthiness.” The current list of Republican outrageous assaults on democracy is lengthy and growing: banning books, banning abortion in six states, forbidding discussion of gender identity, creating obstacles to voting, peddling disproven cures for Covid, and supporting the thuggish behavior of a wannabe strongman (Trump, not Putin. Oh, wait! Both.).

          If we had been told of these developments six years ago, we would have assumed that there would be non-stop, massive civil protests to prevent the erosion of civil rights and the rule of law. Though some hardy souls are protesting in front of statehouses and home offices of congressional representatives, the massive demonstrations have not materialized, with rare exceptions. The answer for this state of affairs is obvious: constant outrage and anger are exhausting and damaging to the psyche. But being enthusiastic about an upcoming midterm election is a positive, healthy reaction to a stressful situation. So, why aren’t more Democrats enthusiastic about the midterms? The answer is (again) obvious: the negative media narrative that has overwhelmed the accomplishments of Biden’s first year.

          The good news is that we know the answer to our present malaise: spreading the truth of Biden’s accomplishments and the Democratic agenda. I acknowledge that Democrats have stumbled badly in messaging. The question is, “What are we going to do about it?” Sending lengthy emails to me explaining how Democrats have messed up may be therapeutic for you, but it isn’t a solution to our problem—and may even be contributing to it. If you find yourself giving lengthy dissertations to family and friends about what Democrats are doing wrong, you are probably demotivating others—at least if you omit the part that says, “And this is what I am going to do help fix the problem. Will you join me?”

          As I was writing this newsletter, I was corresponding with a reader who was praising a prominent author who has a tendency (in my view) to focus on the perils faced by our democracy to the exclusion of solutions to those problems. The reader acknowledged my point, said that he nonetheless found the author’s writing helpful, and closed with, “And now, back to my work with Field Team 6.” That reader has it exactly right: Be strong enough to acknowledge our challenges and then have the courage to throw ourselves into the thick of the fight by registering voters on street corners and in shopping centers.

          If there is an enthusiasm gap, it is up to people like the readers of this newsletter to serve as the inspiration for others. Morale is contagious—both good and bad. We have plenty of time to generate enthusiasm and turnout for the midterms, but we must be actively involved in those efforts now. As I told the reader during our exchange, if Democrats are in danger of losing the midterms, I intend to go down swinging. I hope you feel the same way. We can’t win if we don’t try, and we can’t motivate people to try if we are telling them all the ways we can lose. It is always the case that there are a thousand paths to defeat and one path to victory. Let’s not lament that fixed feature of the universe but get on with the hard work of defending democracy.

          Talk to you tomorrow!