Today’s Edition: “Open microphone night” on Democratic messaging.

November 20, 2021

          Over the last six months, a consistent refrain from readers has been dissatisfaction with messaging from the Democratic Party. Some of you have emailed me directly with suggestions for messaging. Others have posted suggestions in the “Comments” section that is available to paid subscribers at the end of each newsletter. Normally, the Comments section is reserved for paying subscribers—a standard format in the Substack platform that I just accepted as a default. Over time, however, I came to appreciate that the paywall helped ensure that discussions in the Comment section were limited to readers of the newsletter. I don’t have to moderate the comments or kick out trolls.

          But for today’s edition of the newsletter, I would like to hear from everyone about suggested messaging for Democratic leadership. By posting in the Comments section, you can share your thoughts with other readers. So, for this edition of the newsletter, I have opened the Comments section to all readers. Simply click on the “comment” icon under my name at the top of the newsletter and post your comment. In other words, it is like “open microphone night” for readers of the newsletter. Please keep comments civil and tasteful (i.e., Twitter rules do not apply!).

          I have been impressed by the creativity and insights of suggestions sent to me directly. Let’s share the wealth of your ideas everyone. You can “like” proposed messages by clicking on the “heart” icon next to each post. I will share leading suggestions in future editions of the newsletter.

          I hope this experiment is useful and productive. Who knows? Perhaps someone in Democratic leadership will adopt your idea! So, stop venting and sharpen those pencils. The democracy you save may be your own!

The Omicron variant.

          The world waits anxiously to learn whether the Omicron variant will lead to a surge in illness, death, and global disruption, or not. Fox Business correctly reported that “Biden’s Strategy for omicron variant is vaccination, not shutdowns.” Although Biden said that the variant was “cause for concern, not panic,” he also said there was “no excuse” for not getting a vaccination or booster shot. If the Omicron variant gains purchase in the U.S., it will find fertile ground in the 100 million Americans who have converted a sensible and effective public health measure into a test of political loyalty to Donald Trump. For that, we can thank Tucker Carlson and Rupert Murdoch, both of whom are profiting by spreading antivax disinformation while enjoying the protections of the Covid vaccine.

          Biden’s efforts to use vaccinations rather than shutdowns to combat the Omicron variant suffered a blow on Monday when a federal judge issued a preliminary injunction against the federal vaccination mandate for healthcare facilities that receive Medicare payments. To no one’s surprise, the injunction was issued by a Trump appointee and card-carrying member of the Federalist Society. Judge Matthew T. Schelp issued an order in which he substituted his personal views on how best to fight the pandemic for those of the scientists and health professionals whose job it is to understand health risks. In a truly bizarre sentence in his order, Judge Schelp writes that the Center for Medicare and Medicaid “lacks evidence showing that vaccination status has a direct impact on spreading COVID.”

          Say what?! The decrease in infections among vaccinated healthcare workers was demonstrated in a U.S. study in the first quarter of 2021. See discussion in NIH.gov, “COVID-19 vaccines and decreased transmission of SARS-CoV-2.” Judge Schelp’s statement sounds like it was taken from a Tucker Carlson interview with an antivaxxer banned from Twitter for spreading vaccine disinformation. Oh, wait. It was. See Media Matters, “Tucker Carlson guest claims “There's just no evidence that the vaccines halt infection or transmission in any way.”

          To similar effect is a ruling by the Fifth Circuit Court of Appeals that stayed the vaccine mandate for employers with more than 100 employees. In that opinion, Judge Kurt Englehardt (also a Trump appointee) wrote that an injunction was appropriate (in part) because the mandate infringed on “the liberty of individuals to make intensely personal decisions according to their own convictions.” Of course, federal law frequently infringes on the liberty of individuals to make personal decisions despite their “own convictions.” For example, the federal government regulates use of certain drugs without a prescription, riding a motorcycle without a helmet, purchasing a vehicle without seatbelts, being married to more than one person at once, and flying a plane while intoxicated.

          Both of the legal rulings above turn on the question of whether an agency of the federal government—as opposed to Congress—has the authority to impose a national vaccine mandate. But the appeal to junk science (Judge Schelp) or to a free ranging “personal conviction superpower” that overrides all federal regulation (Judge Kurt Englehardt) is classic Trumpism. The fact that the judges included those partisan arguments when discussing a narrow question of the authority of a federal agency demonstrates yet again the urgency of ensuring that the Senate remains in Democratic hands.

          If the Omicron and future variants are virulent and highly transmissible, the nation can ill afford another wave of Trump appointees.  Let’s help President Biden use “vaccinations rather than shutdowns” to defeat the Omicron variant. Give him a stronger hand in the Senate so he can accelerate the appointment of federal judges. Speaking of federal judges, read on!

The Supreme Court’s docket.

          The Supreme Court has major cases on its docket, including cases on abortion rights and the ability of municipalities to regulate concealed weapons in public spaces.  The current term is the first in which the cumulative effect of the appointments of Gorsuch, Kavanaugh, and Barrett will be felt. Ruth Marcus has published a lengthy analysis in the Washington Post, “Supreme Court decisions on abortion, guns, more loom from newly radicalized institution.” If you need convincing that Democrats must expand the Court as soon as possible, Marcus’s article will do it. She makes the point that a bare 5-4 majority is inherently fragile, but

          [a] six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.

          As Harvard Law School professor Charles Fried says, “I dislike the fact that journalists refer to the six as conservative. They’re not. They’re reactionaries. That’s the only correct term for them.”

          That reactionary majority is about to overrule Roe v. Wade, even if it does not use those words. As explained by Ian Milhiser in Vox, ‘[t]he Court could very well hand down a disingenuous decision that burns the constitutional right to an abortion to the ground, while also pretending to preserve some part of Roe.” The impact will be immediate and far-reaching. A dozen states have “trigger laws” that will prohibit nearly all abortions if the Court overrules Roe. Even if the Court does not explicitly overrule Roe, those states have Republican governors and legislatures; they will enact Texas-style laws immediately after the Court rules in Dobbs v. Jackson Women's Health.

          We should prepare ourselves for a series of reactionary decisions from the post-Roberts Court. If Roberts is not in the reactionary majority on a particular case, then Justice Clarence Thomas can write the majority opinion or assign the opinion to the Justice of his choosing. Although we should hope for the best, we should also recognize that any setbacks will reinvigorate constituencies who have taken their liberties for granted.

          The Court lost its legitimacy when Mitch McConnell single-handedly reduced the size of Court for the last year of President Obama’s tenure. That legitimacy was further eroded when Justice Barrett was nominated and confirmed days before the 2020 presidential election. And Justice Kavanaugh’s shameful performance before the Judiciary Committee demonstrated his unfitness for any court, let alone the Supreme Court. We must expand the Court. The time for pedantic debates over the possible collateral consequences of expanding the Court has passed. If we fail to do so, we are facing decades of backsliding from the hard-won victories of the last seventy years. We cannot let that happen.

Trump abandoned the nation’s security in the final month of his presidency.

          Add this to the list of reasons why we must ensure that Trump is never elected president again: In a forthcoming book by David Priess, he reports that Trump simply stopped receiving presidential briefings on intelligence relating to threats against the United States in the final month of his presidency. During that period, the U.S. was uniquely vulnerable to overt and covert action because of Trump’s failed coup attempt. Trump’s dereliction of duty and failure to protect the interests of the U.S. during a perilous time are inexcusable and unforgivable.  And yet, he is the leading contender for the 2024 GOP presidential nomination.

Be a hero.

          A longtime reader is co-sponsoring an event for Be A Hero, the national healthcare advocacy organization founded by Ady Barkan. Ady became a national champion for healthcare justice and disability rights after being diagnosed with ALS in 2016. You might recognize Ady from speaking at the DNC in 2020 or from his award-winning documentary Not Going Quietly. Ady has teamed up with Jamila Headley, an accomplished leader and advocate for health care, racial and disability justice. The virtual event will take place on Wednesday, December 8th, at 8:00 PM Eastern /5:00 PM Pacific. RSVP HERE for a link to the event. Free tickets available, but donations are greatly appreciated!

Concluding Thoughts.

          My Managing Editor wisely advised me to move my “Concluding Thoughts” to the first page of today’s edition. I did so, but that left me with a hole at the end of the newsletter. At this late hour, I have run out of thoughts—concluding and otherwise. So, let’s hear from you! Join the discussion in the Comments section!

          Talk to you tomorrow!