The Chief Justice disrespects Congress.

May 3, 2023

          The Senate Judiciary Committee held a hearing on Tuesday about the proliferating scandals plaguing the US Supreme Court. Chief Justice John Roberts boycotted the hearing, thereby ensuring the hearing would devolve into a battle of competing narratives about the Court. See NPR, At Supreme Court ethics hearing in the Senate, two narratives. Democrats were laser-focused on the spate of ethics and financial scandals revealed in the last month by Pro Publica. Not so with Republicans. Per NPR,  

Republicans viewed the subject of Supreme Court ethics as an attack on the new conservative Supreme Court supermajority, an attack by Democrats, aided and abetted by the "liberal media” [which is a] “concentrated effort by the left to delegitimize this court.”

          The Court should serve as a bulwark of stability and reason during periods of chaos and extremism in the first and second branches of government. Instead, the Court has become a captive of the Senate—a legislative body designed to be anti-democratic by granting disproportionate representation to small states. The Senate and the Court have leveraged that anti-democratic advantage for all it is worth. As a captive institution, the Court has lost touch with the Constitution and the soul of America.

          Although Republicans claimed in today’s hearing that Democrats are seeking to delegitimize the Court, the conservative majority needed no assistance from Democrats. The six conservative justices have driven the Court into a state of disrepute through a series of bad-faith decisions and self-inflicted wounds. For a cogent summary of the reactionary majority’s assault on the citadel of justice, see Pema Levy in Mother Jones, The Dobbs Leak Didn’t Wreck the Supreme Court—the Justices’ Scandals Did. The list is long and ignominious.

          The absence of the Chief Justice from Tuesday’s hearing illustrates the hubris and contempt that animates much of the jurisprudence of the reactionary majority. Worse, Robert’s decision to boycott the hearing undermines the public’s trust in the third branch of government at a time when trust in that institution may be the final barricade against dictatorship. See Alex Aronson in Slate, John Roberts’ absurd double standard: He’ll embrace checks and balances for Trump, but not for his own court.

          As noted by Aronson, when Roberts wrote an opinion rejecting Trump's effort to quash a congressional subpoena, Roberts acknowledged that Congress has the authority to force a co-equal branch of government to yield to legislative inquiry:

“Congressional power to obtain information,” he recognized, is “broad,” “indispensable,” and necessary for Congress to “legislate wisely or effectively.” This power, Roberts continued, encompasses inquiries into “existing laws, studies of proposed laws,” and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”

          But Roberts held himself above the logic that compelled a former president to submit to a congressional subpoena. The hypocrisy is palpable.

          Roberts’ refusal to cooperate with Congress coincides with the Court’s grant of review to a case that will establish Supreme Court justices as the final arbiters of the meaning of federal regulations—a power that currently resides in the agencies that write the regulations. See Laurence Tribe and Dennis Aftergut in Los Angeles Times, Opinion: If the Supreme Court kills the Chevron doctrine, corporations will have even more power.

          Per Tribe and Aftergut,

Nobody can say for sure what the Supreme Court will do in the Loper case. But we can say this: There is nothing in the Constitution or in its history that justifies shifting the power to fill gaps in a statute from a government agency in the executive branch to the judiciary, provided courts retain the authority, as they do under the Chevron ruling, to prevent agencies from exercising powers not lawfully delegated to them.

          As I noted yesterday, Justice Gorsuch is singularly dedicated to overturning the Chevron deference standard, which will inevitably increase the quasi-legislative power of the Supreme Court.

          All of this is frustrating. But the good news is that the American public finally understands the stakes—as does the Court. Justice Roberts refused to appear at the hearing because he understands he has no defense to the current crop of scandals. Congress is motivated to reform the Court; some Senators are calling for Justice Thomas to resign; and momentum is growing to expand the Court.

We are within an election or two of being able to dilute the reactionary majority’s death grip on the Court. We can then restore reproductive liberty, protect the equality and dignity of women and LGBTQ people, and remove guns and religion as “meta-rights” that supersede all others. We are on the cusp of history; we need only the courage and boldness to rise to the moment.

A way forward on the debt limit crisis?

          Commentators and politicians in D.C. are suddenly filled with cautious optimism that there is a path to avoiding a debt default. Having reviewed the various articles expressing optimism, I confess that I am confused and unconvinced but nonetheless happy to hear people closer to the situation see a path to victory.

          One scenario is based around a stealth “discharge petition” that would allow Democrats to bring a “clean debt limit bill” to the House floor over Kevin McCarthy’s objection. Per the NYTimes, Democrats have been plotting since the beginning of this legislative session to position a “placeholder bill” to act as a vehicle for a discharge petition. The details are described in Business Insider, Dems Plotted for Months to Try and Bypass McCarthy, Force Debt Ceiling Vote.

          The key to the success of the discharge petition is that it needs the support of a half-dozen Republicans (depending on the number of Democrats who support the petition). Given the intense partisan divide in the House, it is difficult to believe that a half dozen Republicans would switch sides on such a momentous vote.

          But there may be reason for hope. President Biden has begun a social media campaign that highlights the effect of McCarthy’s proposed bill on support for veterans benefits. Biden released a simple chart that shows that (a) Republicans propose a 22% cut in most federal programs (except defense, Medicare, and Social Security), (b) programs for veterans are not protected from those cuts; and, therefore, (c) veterans’ programs are potentially exposed to 22% cuts in funding. See President Biden’s tweet,

I hear House Republicans out on TV saying they would never vote to cut veterans’ benefits. In case there’s any confusion, I made a little chart that could help them out.

          That campaign has hit a nerve with Republicans and may convince some newly elected GOP members to support the discharge petition.

          Separately, the Washington Post is reporting that Biden and congressional leaders are working on a compromise that is sufficiently vague that both sides can claim victory. I have read the WaPo article several times and can’t figure out what such a deal would look like beyond a “wink-and-a-nod” and “informal handshake” about future cuts. See WaPo, White House leaves door open to deal that resolves debt ceiling crisis.

          Finally, the NYTimes is also reporting that Biden’s aides are considering the possibility of a unilateral presidential override of the debt limit by invoking the language of the Fourteenth Amendment that says the validity of the debt of the US “shall not be questioned.” See NYTimes, Is the Debt Limit Constitutional? Biden Aides Are Debating It.

          The above reporting suggests that there are at least three pathways to avoid a default on the US debt: (a) a discharge petition and a “clean” increase in the debt limit; (b) a “wink-and-a-nod” agreement where everyone wins; and (c) ignoring the debt limit. The various pathways may create sufficient momentum to allow legislators to pursue one path to victory. I am breathing a little bit easier tonight.

The confluence of neo-Nazi ideology and anti-LGBTQ legislation.

          I have written frequently and at length about the need to fight anti-LGBTQ legislation. Opposing such legislation is the right thing to do from a moral and human decency perspective but it is also necessary to prevent the spread of vile ideas that harken back to the tactics of the Nazis. The “purification” programs of the Nazis began with discrimination against disabled children and gay men. Once normalized in those niches, the pursuit of an “Aryan race” soon turned to the persecution of Jews, Slavs, Roma, Blacks, Jehovah’s Witnesses, and others.

          A wave of anti-trans and anti-LGBTQ legislation is sweeping through red states. The latest bills seek to ban adults from obtaining gender-affirming medical treatment. See Austin-American Statesman, Texas Senate advances more gender-affirming care restrictions. Candidly, the restrictions have been proliferating so quickly it has been difficult to keep up with the developments.

          The second reason for standing against discrimination directed at transgender and LGBTQ people is to prevent the spread of the underlying animus to other groups. Rachel Maddow highlighted the connection between anti-transgender legislation and the neo-Nazi movement in her Monday program. See Rachel Maddow Blog, Anti-trans neo-Nazis find common cause with state Republicans. I urge you to watch Rachel Maddow’s report if you have not seen it.

          As Maddow notes, when neo-Nazis show up in support of GOP-proposed legislation to discriminate against transgender people, that should give Republicans pause. It does not. Republicans are comfortable proposing legislation against transgender and LGBTQ people that is adopted and amplified by neo-Nazis.

          I recognize that not everyone is personally comfortable taking a stand on transgender and LGBTQ issues. Society and cultural norms are decidedly different today than they were fifty years ago, and that difference might be jarring to some. But this issue will affect your children, grandchildren, and great-grandchildren—as well as your family, friends, and co-workers. And it will not merely be those of future generations who are transgender or LGBTQ who are threatened. As with the Nazis, once it is acceptable to discriminate against smaller groups, other groups are next. We can’t let that happen. Speak out now to condemn the growing movement in red states to stigmatize and punish transgender and LGBTQ people.

More on the CNN town hall with Trump.

          I received a LOT of feedback on my criticism of CNN for holding a town hall with Trump and Republican voters in New Hampshire. While the overwhelming response agreed with my criticism of CNN, I received more than the usual disagreement with my views. I have included some of the reader comments below that reflect the disagreement.

          First, I note that others in the media are strongly criticizing CNN for giving Trump a friendly platform. See Talking Points Memo, Have We Learned Absolutely Nothing About Covering Trump? But The Hill reported new information that reinforces my suspicions about CNN’s motivation. CNN has been “courting” Trump for months to do a town hall as part of its effort to reposition itself as a “Trump-friendly” network. Per The Hill,

A report surfaced Monday that the agreement to have Trump sit for a town hall with CNN was part of a larger effort to get more campaign surrogates on the network’s air. CNN has publicly denied that report.

           And it is clear that Trump got the better part of the bargain:

For Trump, getting on CNN gives him what he craves most: attention and the ability to control a news cycle. In the aftermath of his false claims that fraud led to his 2020 defeat, it also could hand him some mainstream respect and legitimacy.

          There’s the rub: Appearing on CNN in a town hall gives Trump “mainstream respect and legitimacy”—neither of which is fitting for a former president who attempted a coup, incited an insurrection, is accused as a serial rapist, and stole defense secrets.

          That said, below is a sampling of reader reaction that takes issue with my criticism of CNN.

Your remarks about CNN being a “tool” of Trump was inappropriate, in my opinion. Your comment about CNN journalists was disappointing and disparaging. They are some of the best in the business. I watch their morning segment, and several of their afternoon segments. Excellent coverage of top news stories. Kaitlin Collins is one of the best interviewers on TV today. She asks not only good questions, but has good follow-ups as well. (She talks a little too fast for my senior ears, but other than that, she’s great).

CNN is definitely a legitimate news organization - and its format, though sometimes “boring”, is to bring news and contributions from all experiences and beliefs.  They host independents, fact checkers, evening panel discussions that present all sorts of political views - but with respect and meaningful conversation. Their international coverage of Ukraine is unparalleled.

          From another reader:

Robert, I agree a Trump town hall is a mistake. But I think you overstate the case against CNN. With Chris Cuomo and Don Lemon gone, they have jettisoned two of the most opinionated anchors. That’s good. MSNBC has too many anchors who are columnists, not anchors, which is why I prefer CNN. Kaitlin Collins has come quite far from her Daily Caller days. I can’t predict if she will ask tough questions. We’ll see.

          From another reader:

I was surprised and disappointed to read your attack on Kaitlin Collins. I've watched enough CNN news to know that she was one of the fiercest interrogators of Trump during the pandemic and on at least one occasion called out "You're wrong" when Trump made an absurdly unconstitutional claim about his presidential powers. Not many reporters have the chutzpah to do that.

          I disagree with the above comments, but I have said my piece. Let’s see how CNN acquits itself in the town hall.

Help register Democrats.

          Field Team 6 is fiercely dedicated to registering Democrats. You can help Field Team 6 do so by downloading a “lock screen” app with a QR code that will allow you to easily direct others to a voter registration website. If the prior sentence makes sense to you and you are comfortable doing so, download the lock screen QR code (and other social media tools) for Field Team 6 here: Field Team 6 digital media tools

The status of the Mineral King Road.

          For those of you interested in Mineral King in Sequoia National Park (where my wife and I have a mountain cabin), my wife’s blog features an update on the damage to the Mineral King Road inflicted by the record precipitation in 2022-23 winter season. See EveryDayWithJill, Mineral King Road Washout: April 29, 2023.

Concluding Thoughts.

          The past seven years have been hard. No one anticipated the retrenchment in civil liberties for women, Blacks, transgender and LBGTQ people, and voters in general. Nor did we foresee the hostile takeover of the Supreme Court by GOP dark money. Having been through what is (hopefully) the worst of it, we have been awakened and energized as never before. We no longer take anything for granted and understand what is being asked of us.

Most importantly, we have learned what it takes to win. Now, we must learn to be bold. No more half-measures or commissions to study possible future proposals for policy frameworks. We must act with urgency and determination. We can do that. We did so in 2018, 2020, and 2022. Let’s repeat that formula for success in 2024.

          Talk to you tomorrow!