Today’s Edition: A true verdict.

November 24, 2021

          A Virginia jury awarded nine plaintiffs $26 million in damages against the white supremacists who organized the Unite the Right rally in Charlottesville, Virginia. The rally caused one death and dozens of injuries. The defendants were found liable for violating Virginia laws prohibiting racial, religious, or ethnic harassment or violence. Each of the defendants was found liable on a conspiracy charge and ordered to pay at least $500,000 in compensatory damage and $200,000 in punitive damages. The defendant who drove his car into a crowd of protestors was ordered to pay more than $14 million in compensatory and punitive damages. See Washington Post, “Spencer, Kessler, Cantwell and other white supremacists found liable in deadly Unite the Right rally.”

          The substantial monetary damages against individual white supremacists will serve as a sobering message to others who recklessly incite violence to promote white nationalism. The defendants were defiant and cocky during the trial, using the proceeding as a platform to spew racial epithets and promote their hate-filled podcasts. But after the verdict, the defendants were subdued as they reeled under the weight of their personal financial liability for the injuries and death they caused by planning an event intended to incite violence. Indeed, the monetary damages in the Charlottesville case should cause Rittenhouse to reflect on his civil liability for personal injury and wrongful death claims brought by his victims. O.J. Simpson was acquitted of murder but found liable for wrongful death and ordered to pay punitive damages in a civil action. That verdict effectively bankrupted the wealthy professional football player.

          The monetary damages provided some recompense to the Charlottesville victims and their families, but the trial was about more than the injuries suffered by the plaintiffs. It was also an effort to confront the growing threat of the violent white supremacist movement. The attorneys who brought the case—Karen Dunn and Roberta Kaplan—are high-profile lawyers with BigLaw backgrounds. Dunn and Kaplan brought tremendous firepower to the case, which was backed by Integrity First for America, a civil rights nonprofit organization that funds litigation costs and evidence collection. (Integrity First has posted a video about the lawsuit and its future efforts to sue white supremacists. See Integrity First for America’s Charlottesville Case. Share freely on social media if you are able.)

          The victory in the Charlottesville case provides a template for holding criminal defendants accountable for civil damages. That strategy was used successfully in the 1980s to bankrupt the largest KKK organization in America for the murder of Michael McDonald. See Medium essay by DeLani R. Bartlette, “The Case That Bankrupted the KKK.” The burden of proof in civil cases is lower than that required to convict a criminal defendant, and many states do not require a unanimous verdict in civil cases. Civil cases in state courts thus provide an alternate avenue for imposing legal sanctions on white supremacists. The Charlottesville verdict should help restore some faith in the ability of the American justice system to respond to the wave of white supremacist violence. Good.

          But the Charlottesville trial echoed disquieting concerns from the Rittenhouse trial about the quality of judging that supervised the trials. In the Rittenhouse trial, Judge Bruce Schroeder made several controversial legal decisions that are too complicated to review in this newsletter. But one fact stands out. Twice during the trial, Judge Schroeder’s cell phone rang while he was on the bench in front of the jury—playing Trump’s “walk-on” theme song from campaign rallies. No judge in America should have a partisan ringtone on his phone; the fact that Judge Schroeder does suggests a breach of the spirit if not the letter of Wisconsin Code of Judicial Conduct, SCR 60.06(2), which states in part, “a judge shall not be a member of any political party or participate in its affairs [or] endorsements.” That Judge Schroeder allowed Trump’s campaign rally song to play in front of the jury on two occasions is a serious breach of his obligation to remain impartial during the trial. The Wisconsin Judicial Commission should reprimand Judge Schroeder for his serious lapse of judgment, decorum, and impartiality.

          In the Charlottesville civil trial, the defendants and their attorneys engaged in outrageous conduct that included repeatedly using racial and religious slurs. Per the Washington Post, “Defendants have dropped the n-word, admired Adolf Hitler, joked about the Holocaust and trafficked in racist pseudoscience.” After that sickening display of brazen racism and anti-Semitism, Judge Norman K. Moon praised the white supremacists who represented themselves during this case for conducting “a very civil proceeding,” adding “All in all, no one could have asked for a trial to go any better.” Judge Moon took senior status more than a decade ago. If he believes that the disgraceful trial that he witnessed was “a very civil proceeding,” it is time for him to leave the bench.

          Judge Moon’s views of the “very civil proceeding” notwithstanding, the jury in the Charlottesville trial was able to deliver a true verdict that sends a message to other white supremacists who believe provoking violence is a way to spread their messages of hate. We owe a debt of gratitude to attorneys Karen Dunn and Roberta Kaplan, to Integrity First for America, and to the brave plaintiffs who subjected themselves to the trauma of the trial. Because of their unflagging efforts to pursue justice, democracy is more secure today.

Once more, with feeling.

          I received another influx of emails from readers forwarding articles that caused alarm or concern about the 2022 elections. Because readers continue to ask for comment, I will do so. If you feel that my responses to such articles are becoming tedious or repetitive, let me know. But I continue to be concerned about the collective mental state of Democrats who are exhausted by the media’s incessant drumbeat about the dire state of the nation.

          One reader highlighted the column by Michelle Goldberg in the NYTimes, “The Problem of Political Despair.” The reader suggested that I might want to respond to Goldberg’s article in the comments section in the NYTimes. I will respond here, instead. Goldberg’s column is a weary recital of the familiar challenges faced by Democrats, which closes with the following tepid plea for leadership:

          Given the bleak trajectory of American politics, I worry about progressives retreating into private life to preserve their sanity, a retreat that will only hasten democracy’s decay. In order to get people to throw themselves into the fight to save this broken country, we need leaders who can convince them that they haven’t already lost.

          Okay. Challenge accepted, Ms. Goldberg! We haven’t already lost! But as I responded to the reader, Goldberg's handwringing article provoked a blizzard of pity and panic in the comments section following her article—the very outcome that she is worried about. It's a good thing that Goldberg’s attitude did not prevail among the civil rights marchers who were beaten on the Edmund Pettus Bridge on Bloody Sunday. If so, that would have been the end of the civil rights movement. Thank goodness John Lewis and others were willing to look past defeat and continue their fight. We have got to toughen up, or every dire prediction in Goldberg's column will come true because Democrats will be cowering at home, convinced that resistance is futile. We are better than that—or rather, we should be. Otherwise, we are unworthy of the democracy bequeathed to us by the blood sacrifice of our ancestors.

          Yes, we face daunting challenges, but we also happen to control both chambers of Congress and the presidency. Why, then, are we acting like all is lost? I blame the media, which has decided that alarmist and defeatist articles are more likely to drive revenues than honest reporting about the achievements of the Biden administration. Ms. Goldberg’s article falls squarely in the former genre.

          To similar effect is a companion article in the NYTimes by Thomas Edsall, “Democrats Shouldn’t Panic. They Should Go Into Shock.” Edsall set out to write a negative article and succeeded admirably. His trick was to recite the challenges faced by Democrats and then “ask a range of political scientists for their projections on how the 2022 elections for control of the House are likely to turn out.” Got that? The article is about the opinions of political scientists. What did they have to say? In the main, they said that the party in control has fared poorly in midterm elections for the last century. Quotes from the political scientists include the following snippets:

• Based on simple midterm loss averages. . .

• My guess is that Republicans are poised to take the House back in 2022.

• The history of midterm elections suggests that substantial House losses for the party of the incumbent president are inevitable . . .

• Erikson examined every midterm contest since 1902 [and] wrote, A “presidential penalty” explanation fits the data nicely . . . .

          Edsall’s essay can be summarized as follows: Bad news abounds (which is always true) and history suggests that the party in power loses seats in midterms. Does that suggest that “Democrats should go into shock”? No! It suggests that Mr. Edsall was desperate for us to read his column by turning “nothing to see here” into a “shocking” headline. As I said, he succeeded. It is the highbrow version of clickbait. Don’t fall for it.

          Let me repeat: We must toughen up. We cannot let every negative article send us into a tailspin. There will be tens of thousands of such articles in the coming year, so let’s get past them and focus on the hard work of defending democracy.

Concluding Thoughts.

          Unless events warrant otherwise, the next newsletter will be in your inbox on Monday, November 29th. My Managing Editor and I wish everyone a peaceful and blessed Thanksgiving. I made a guest appearance on her blog Tuesday evening to share a few brief words of encouragement, focusing on the need for perspective. America is a vast nation of 330 million citizens who yearn for peace, safety, liberty, and health for their families. In time, that imperative will overwhelm all of the challenges we face today. Confident in that knowledge, you should relax and enjoy the holiday. Stay strong, keep the faith, and take care of one another!

          Talk to you on Monday!