Today’s Edition: “The backbone of America.”
August 27, 2021
It is difficult to write a newsletter on a day when suicide bombers killed thirteen U.S. soldiers and dozens of Afghan citizens. The deaths and injuries are horrific. The news is grim and difficult to bear. There is nothing partisan about the deaths, nor should there be. Families of fallen soldiers should be given space and time to grieve the loss of their sons and daughters before their deaths are converted into political talking points. Sadly, it is already too late for that. Indeed, it was too late within minutes of the first reports of explosions in Kabul. So, for a moment, let’s step outside partisan politics and acknowledge that this evening in America and Afghanistan, dozens of families are hearing what no parent ever wants to hear. America’s sons and daughters volunteered for dangerous duty to protect all Americans. They gave their lives in that cause. The nation owes them—and all U.S. soldiers killed and wounded in Afghanistan—unqualified gratitude and support.
What we know.
The terrorist attacks were carried out by ISIS-K, an ISIS splinter group that is at war with the Taliban. Explosions occurred at the Abbey Gate of the Kabul airport and The Baron Hotel, which is used by U.S. contractors and journalists. Detailed reporting is provided in the Washington Post, “Twin bombings at Kabul airport kill 13 U.S. service members and dozens of Afghans.” See also, U.S. Department of Defense, “Tragic Deaths of U.S. Service Members in Afghanistan Won't Stop Evacuation Mission.”
What Joe Biden said.
Joe Biden addressed the nation within hours of the attacks. His comments are here: Transcript of Biden’s Speech After Kabul Airport Attack. Biden made the following remarks about the U.S. soldiers who lost their lives:
They are a part of the bravest, most capable and the most selfless military on the face of the Earth, and they are a part of simply what I call the backbone of America. They are the spine of America. The best the country has to offer.
The lives we lost today were lives given in the service of liberty, the service of security and the service of others. In the service of America. Like their fellow brothers and sisters in arms who have died defending our vision and our values in the struggle against terrorism, of the fallen this day, they are part of a great noble company of American heroes.
Stepping back from politics.
Frank Bruni wrote an op-ed in the NYTimes urging Americans to stop viewing everything happening in Afghanistan through a partisan lens. See “The Misery In Afghanistan Shouldn't Be Politicized.” Bruni counsels Democrats to “focus on the substance of problems rather than their political implications, to talk about solutions without calculating their political benefit. In these jaded times, a little genuine earnestness could go a long way.”
Bruni notes a recent column by Margaret Sullivan, who “rued the fact that reporting on government has become reporting on politics.” Sullivan implored journalists to “stop asking who the winners and losers were in the latest skirmish. Start asking who is serving the democracy and who is undermining it.”
The Supreme Court.
The reactionary majority on the Supreme Court issued an unsigned order that effectively terminated the eviction moratorium that is currently protecting hundreds of thousands of Americans during a pandemic. See NYTimes, “Supreme Court Ends Biden’s Eviction Moratorium.” The three liberal Justices on the Court dissented. Justice Stephen Breyer criticized the majority for using a procedural hearing to end a pandemic-related regulation. Breyer wrote,
These questions call for considered decision-making, informed by full briefing and argument. Their answers impact the health of millions. We should not set aside the C.D.C.’s eviction moratorium in this summary proceeding.
The decision is yet another partisan result by the reactionary majority. During Trump’s tenure, there was little the Court found lacking in Trump’s expansive efforts to up-end the administrative state with sweeping executive orders. Now, the Court does not hesitate to second-guess public health agencies battling a pandemic using a statutory grant of authority.
I noted two days ago that the Supreme Court ordered the Biden administration to reinstate a voluntary agreement with Mexico made by Trump that terminated in 2020—before Biden was elected. (The agreement related to the “Stay in Mexico” policy for immigrants seeking asylum in the U.S.) The order by the Court does violence to the separation of powers in the Constitution. The judiciary does not tell the executive how to conduct foreign policy—until now. The Court’s order is effectively unenforceable because the Court has no jurisdiction over the sovereign nation of Mexico. The Mexican Ministry of Foreign Affairs issued a statement earlier this week that made that point emphatically:
The Foreign Ministry emphasizes that a court ruling of this type is not binding on Mexico. Its immigration policy is designed and executed in a sovereign manner. Consequently, the U.S. Supreme Court ruling has no direct implications on how the Government of Mexico manages migration.
The Court is desperately in need of reform—and not just because of the illegitimate appointments of Gorsuch and Barrett. The two decisions noted above are revolutionary in sweep and substance—and yet both were decided in summary proceedings without benefit of a full record or argument. The Court is acting recklessly as it flexes the power of its ill-gotten majority.
Biden has appointed a commission to study the issue of Supreme Court reform. Harvard Law Professor Michael J. Klarman has provided Klarman written testimony to the commission that reviews the role of the Supreme Court in the degradation of American democracy. Testimony of Michael Klarman to Judicial Reform Committee. See pages 10-12. Professor Klarman argues for expansion of the Court, concluding with the following:
[I]f Democrats do not expand the Court while they have the political power to do so, they—and the nation as a whole—will likely rue the day they squandered that opportunity. In contrast to the Republicans’ antidemocratic norm violations, Democratic reform of the Court is critical to the preservation of American democracy.
In light of the above decisions, it is clear that the Court must be constrained before it rewrites the Constitution to promote the conservative political agenda. What are we waiting for?
The attempted coup.
The House Select Committee investigating the January 6th insurrection has issued sweeping subpoenas. Those subpoenas request production of phone records of calls between Trump and members of Congress on January 6th. That request apparently hit a nerve with Republican Rep. Jim Banks, who was chatting with Trump as insurrectionists breached the Capitol. Banks held a wild interview with Tucker Carlson in which he said that Republicans have “duty to punish” members of the Select Committee if and when Republicans take back control of the House. Banks has suggested that members of the Committee be stripped of all Committee assignments in the future. And in a coincidence too coincidental to be coincidence, it turns out that Tucker Carlson’s son works for Rep. Jim Banks, who is a frequent guest on Carlson’s show. Funny how Tucker Carlson never bothers to mention that fact when interviewing his son’s boss on air . . .
A federal judge has issued a lengthy opinion explaining her basis for issuing sanctions (monetary penalties) against Trump attorneys Sidney Powell and Lin Wood, among others. A reader sent a link to the opinion with a note saying that it should serve as a refresher for attorneys appearing in federal court. In addition to monetary penalties, Powell and Wood are required to attend classes in professional ethics, and the clerk of the court will send copies of the sanctions order to the authorities that issued licenses to Powell and Wood. The opinion is here: King v. Whitmer, E.D. Mich. No. 20-13134
The Capitol Police Officer who shot insurrectionist Ashli Babbitt gave an interview defending his actions. Lt. Michael Byrd said,
Once we barricaded the doors, we were essentially trapped where we were. There was no way to retreat. No other way to get out. I know that day I saved countless lives. I know members of Congress, as well as my fellow officers and staff, were in jeopardy and in serious danger. And that’s my job.
For his service in protecting members of Congress, Lt. Byrd has received death threats and racist insults. Trump, the instigator of the insurrection, has spread lies about Byrd and said that he needed to be held “accountable” for his actions.
After I hit “send” on each newsletter, I am never quite sure what readers will react to—positively or negatively. The few dozen comments I receive in response to each email may not be representative of how tens of thousands of readers feel, so I try not to overweight the email responses I receive. Still, I was surprised by the handful of emails I received in response to yesterday’s newsletter regarding growing resentment against people who refuse vaccination for political grounds. I noted the decline in Biden’s popularity because of the resurgence and said the following:
But I believe that whatever divots in popularity Biden suffers because of his handling of the pandemic will disappear when a GOP presidential candidate must defend his party’s reckless policies regarding masks and vaccines.
That particular statement triggered responses that ranged from doubtful to angry. In one way or another, readers told me I was fooling myself if I thought any Republicans would abandon GOP candidates who promote anti-vaccination platforms. I was careful to lay out the premises of my argument, including polling that showed 52% of Republicans blame unvaccinated people for the resurgence. Still, the readers who wrote about that section of the newsletter feel strongly that Republicans will not change their minds. To varying degrees, that statement was followed with predictions of doom or disaster for Democrats.
As my wife sometimes reminds me, “Don’t tell me how to feel,” so I won’t tell the readers how to feel about Republicans or the possibility that GOP voters will change their minds because of the pandemic. I am a firm believer that Democrats must be realistic in assessing their current situation. But I don’t think we should confuse realism with pessimism.
I agree that many Republicans are stuck in a cultlike mindset—but some will lose a loved one or a job or a business because of the disinformation being peddled by the GOP. If only 10% of Republicans change their views on the GOP because of the pandemic, Democrats will win in 2022 and 2024 by a landslide. How likely is it that 10% of Republicans will change their views? I will let you make that judgment. But I believe that your judgment will be better informed if it is made from the trenches of the fight to preserve democracy rather than from a position of reflexive doom saying. Let’s not fool ourselves—either positively or negatively. Nor should we give up the fight because we assume failure. Let’s assume victory—and go out to make it happen.
It has been a tough week. Get some rest. Talk to you on Monday.
Last things first: the reason I read your newsletter is to quell the voices of anger and doom. So, there! The Supreme Court has become so heavy-handed of late that Stephen Breyer broke his smiling silence—enough said. As for the Press, and Jim Banks, too: I personally think we need more protection from the inflammatory and precipitant media than we do ISIS-K. Thank you for your tribute to those killed and wounded in the attacks, and their survivors. It is a tragedy, too, and was largely unforeseeable. We will always have enemies, both those we know and those we have not yet met.
Another great newsletter today, Robert; and as an attorney myself (now happily retired), I especially appreciated the link to the excellent opinion by Judge Parker in the Michigan federal court case. Thanks for what you do on a daily basis.