Throwing ourselves into the breach!

December 4, 2024

Good news!

Democrat Adam Gray (CA-13) has won the last open seat in the House. Congratulations to Adam and everyone who helped cure ballots for Adam. Your efforts brought Democrats their 215th vote in the House—which will leave Republicans with a one-vote majority during the first few months of the 119th Congress!

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Throwing ourselves into the breach created by the collapse of legacy media

One aspect of Joe Biden’s pardon of Hunter Biden reminds us of a critical challenge we will face over the next four years: The media still doesn’t get it. No, it’s worse than that: They are equal parts reckless and clueless at a moment when democracy is in peril. Whatever one thinks about President Biden’s pardon of his son, it was a lawful decision motivated by a reasonable fear of political prosecution based on Hunter Biden’s connection to the sitting president.

President Biden had a strong argument for pardoning his son, even if you disagree with the political judgment in granting the pardon. But the media’s reaction was so apoplectic and hyperbolic they have left no room for further outrage when Trump pardons 1,200 insurrectionists who tried to stop the peaceful transfer of power for the first time in our nation’s history.

The media’s reaction to the Hunter Biden pardon was not remotely proportional to coverage of Trump's dubious and (likely) corrupt pardons of convicted tax fraudster Charles Kushner, retired General Michael Flynn who lied to the FBI about his dealings with Russian operatives, Paul Manafort who provided internal Trump campaign polling to Russia, and Roger Stone who was convicted of witness tampering and obstruction of justice in the Mueller investigation.

Biden was going to get blowback for Hunter’s pardon no matter what, but the media’s unprecedented melt-down is another example of the double standard it applies to Democrats in general and President Biden in particular.

As Substack author Lucian K. Truscott IV noted, at one point on Monday, the Washington Post had seven stories on its front page about the Hunter Biden pardon and “every story on the opening page of the New York Times website [Monday] was about Biden’s pardon of his son, all six of them.” See Lucian K. Truscott, I'm sick and tired of the media's double-standard for Democrats.

The media is not solely responsible for the election of Donald Trump—but they did precious little to reinforce the fact that Trump was uniquely unfit to be president. Rather, they normalized Trump and his policies, in part by continuing to pick at President Biden in a “politics as usual manner” that failed to recognize that one of the candidates sought to destroy the very government he was seeking to lead.

The media environment is in flux. WaPo and MSNBC are going weak in the knees as subscribers and viewers flee. CNN aspires to be “Fox-lite” but is hemorrhaging viewers. The NYTimes lurches between haughty detachment and full-throated condemnation of Trump while maintaining an unrelenting crusade against President Biden’s good faith efforts to serve the American people.

So, as during the 2024 campaign, we aren’t going to get any help from the media (or most of it; there are exceptions). It is incumbent on each of us to amplify those voices condemning Trump and defending democracy. Do whatever you can; leverage your existing social media accounts; join new social media platforms; email friends and family; stop tiptoeing around friends and neighbors; be loud and proud about Democratic victories and policies; and call out Trump's anti-democratic efforts in plain, unreserved language.

It is difficult to know what will emerge to replace the legacy media. But let’s make certain that we play a substantial role in the new paradigm. That will happen only if we are bold and proactive in making our voices heard. Let’s throw ourselves into the breach caused by the implosion of legacy media and force the emerging media landscape to react to us as a political force.

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More trouble for Trump's nominations

Even with the below-par efforts of a media temporarily obsessed with the Hunter Biden pardon, Trump's nominations continue to collapse under the weight of their own awfulness. Revelations about Pete Hegseth’s unfitness due to alcohol use and allegations of sex abuse will likely lead to the withdrawal of his nomination. See NBC News, Pete Hegseth's drinking worried colleagues at Fox News, sources tell NBC News.

Per the Wall Street Journal on Tuesday evening, Trump is already floating Florida Governor Ron DeSantis as a potential replacement. See Reuters, Trump considers replacing Hegseth with DeSantis to run Pentagon, WSJ reports.

Trump’s nominee to run the Drug Enforcement Administration, Chad Chronister, abruptly withdrew his nomination on Tuesday. Oddly, the nomination was pulled because Chronister was a supporter of shutdown orders during the Covid pandemic—a fact that caused MAGA extremists to rise in revolt. See ABC News, Trump's DEA selection Chad Chronister withdraws from consideration - ABC News.

The withdrawal of Chronister and the likely withdrawal of Pete Hegseth are good news—it demonstrates that the prospect of a failed nomination hearing in the Senate is real—notwithstanding Trump's threat to resort to recess appointments.

The fact that the Senate seems to be holding onto its “advice and consent” role is critical because the nominations of Kash Patel and Tulsi Gabbard (at least) must be rejected. But so, too, must those of Robert Kennedy, Jr. (HHS) and Linda McMahon (Education).

As Trump's “seat of the pants” approach to nominating unqualified candidates is coming back to bite him, his transition team has finally signed an agreement with the DOJ to permit FBI background checks on some of his nominees. See Trump transition signs agreement with Justice Department, paving the way for FBI background checks on Trump picks.

Allowing the FBI to do background checks may be Trump's way to delegate the dirty work of withdrawing nominees who won’t make it through a Senate confirmation hearing. We should accept that small step toward normalcy as a win and ride it for all it is worth.

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A suggestion to those trying to convince President Biden to publish the ERA

This cryptic note won’t make sense to most readers; it is intended as a suggestion to those attempting to convince President Biden to publish the Equal Rights Amendment. Just so you know where I am coming from, I believe that the ERA has been ratified under Article V, which provides no role for Congress or the Executive in determining whether ratification has been satisfied.

Groups seeking to gain publication of the ERA are circulating petitions asking Biden to “order” the National Archivist to publish the ERA in the Federal Register. In conversations with some of those proponents, I inquired about President Biden’s authority to “order” the National Archivist to publish the ERA (since the President has no constitutional or statutory role in the ratification process). To date, no one has responded to my question. It seems to me that having an answer to that question is important to achieving success in securing publication of the ERA.

Here is my suggestion for dealing with my question: Title I, Sec 106b provides:

Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate,

Rather than “ordering” the National Archivist to publish the amendment, President Biden should send the National Archivist an “official notice” that the ERA “has been adopted,” specifying the states that have ratified the amendment. The term “official notice” is not defined in the statute. If Biden declares his notice is “the” official notice referred to in the statute, the National Archivist is under a statutory duty to publish the ERA.

Biden should also declare that OLC Opinions 2020 and 2022 regarding the ERA are null and void, and that the National Archivist is not bound by those opinions. That will force Republicans into the position of arguing in court that the President cannot override internal policies of the DOJ—something they may be loath to do given their view of the “unitary” nature of the presidency. (While Biden is at it, he should declare that the OLC opinions holding that a sitting president or president-elect cannot be investigated, indicted, convicted, or sentenced are null and void.)

While there will undoubtedly be litigation over other issues (e.g., the time period for ratification and rescission of ratifications), providing the “official notice” called for under Section 106b removes one legal obstacle to the publication of the ERA.

I hope this suggestion is helpful. If you are in a position to pass this suggestion to Senator Gillibrand or President Biden’s legal counsel, I would appreciate it.

My apologies if this theory has already been considered but my review of the materials provided by proponents of publication of the ERA did not identify this approach as one that is currently under consideration.

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Transgender rights are human rights—and the Supreme Court is about to (re)-consider that proposition

Defending the equality of transgender people is the right thing to do. Period. Full stop. But it is also important because the assault on transgender rights is a wedge issue to attack all protections based on gender—for women and LGBTQ people.

The Supreme Court is about to consider whether transgender peoples’ right to medical care are protected under the 14th Amendment Equal Protection Clause. As explained by Mark Joseph Stern in Slate, the decision in Skrmetti v. U.S could affect the rights of hundreds of millions of Americans. See Mark Joseph Stern, Slate, The hidden danger of the Supreme Court’s new trans rights case.

I commend Stern’s article for your close review for further details. But Stern’s conclusion highlights the importance of the case, which will be argued on Wednesday, December 4, 2024.

The key legal question in the case is surprisingly easy: Do laws that deny certain medicines to people based exclusively on their sex trigger heightened scrutiny by the courts? The answer, according to long-established precedent, is a resounding yes.

If the court decides otherwise, it will shred the constitutional presumption against sex discrimination and replace it with a rubber stamp for states that want to impose their own prejudiced conception of gender roles by force of law.

Transgender Americans are, of course, most immediately affected by Skrmetti—but the case really implicates all of our rights. Everyone’s freedom to reject gender stereotypes without fear of state oppression is at stake.

More on this case tomorrow, after oral argument.

Concluding Thoughts

In the post-election post-mortems, some commentators have urged Democrats to “tone down” or eliminate their defense of transgender people. Defense of vulnerable groups is frequently derided as “identity politics.” That criticism is wrong for several reasons.

First, it is often the case that Democrats are discussing vulnerable groups because they have been targeted in the first instance by reactionary and bigoted state legislators. Think of North Carolina’s “bathroom bill” against transgender people and the recent slew of cases targeting medical care for tansgender youth.

If Democrats rise to defend groups targeted for discrimination based on their identity, it is not Democrats who are engaged in “identity politics,” but the state legislators who are discriminating based on sex or race.

Second, the Skrmetti case highlights the long-term plan of Republicans: establish precedent in cases brought against minority populations perceived to be vulnerable and then leverage that precedent against other groups in later cases. Dobbs wasn’t only about abortion. It was about reproductive liberty, contraception, same sex marriage, parental rights for same sex couples, and marriage between members of different “races.”

Trans rights are human rights. When we defend the rights of transgender people, we are defending human rights—for all of us.

Talk to you tomorrow!

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Daily Dose of Perspective

The image below captures the Crab Nebula, or Messier 1, the first object on Charles Messier’s famous list of “objects to be ignored” because they were not comets! Messier’s list later came to be recognized as the catalog of the most interesting objects in the deep sky.

The Crab Nebula was formed by a supernova explosion in 1054 that was recorded by Chinese, Japanese, and Arabic astronomers. The nebula is located 6,500 light years from Earth.

Enjoy!