We've Seen This Play Before

A Puerto Rican, Sonia Sotomayor is the first Latina to serve on the United States Supreme Court. But as Mehdi Hasan understands, that's simply not good enough.

In the article in The Guardian, Hasan writes

...it is time to remember Ruth Bader Ginsburg. To recall how RBG, who had survived two bouts of cancer, refused to quit the court despite calls to do so from leading liberals during Barack Obama’s second term office. To hark back to her insistence, in multiple interviews, that it was “misguided” to insist she retire and that she would only stand down “when it’s time”. To recollect how, on her deathbed in 2020, she told her granddaughter that her “most fervent wish is that I will not be replaced until a new president is installed” – and how it made no difference whatsoever! Donald Trump nominated Amy Coney Barrett as RBG’s replacement just eight days after her death, and Senate Republicans confirmed Barrett to RBG’s vacant seat just eight days before election day.

With Joe Biden trailing Trump in several swing states and Democrats also in danger of losing their razor-thin majority in the Senate, are we really prepared for history to repeat itself? Sotomayor will turn 70 in June. Of course, only Sotomayor knows the full status of her health, still it is public knowledge that she has had type 1 diabetes since she was seven; had paramedics called to her home; and is the only sitting justice to have, reportedly, traveled with a medic. To be clear: she could easily – and God willing – survive a potential Trump second term and still be dishing out dissents from the bench come 2029.

But why take that risk? Why not retire now? Why not quit the bench at the same age that justices in Belgium, Australia and Japan are forced to do so?

"I have PTSD from 2020 [& RBG]...The Republicans are very good at stacking courts... Democrats aren't very good at seeing the power of the Supreme Court."

I debated & defended my Guardian piece calling for Justice Sotomayor to retire so a Dem president + Senate can replace her. pic.twitter.com/JEPMWaA2g2

— Mehdi Hasan (@mehdirhasan) April 3, 2024

Unfortunately, Sotomayor could not announce a retirement effective January 1, 2025 or January 7, 2025, the day after Congress presumably will certify the presidential election results, reserving the option to withdraw her resignation if Trump prevails. There is nearly a 50% chance that Biden will be re-elected while the math for Democrats holding on to the Senate is clearly absent.

Also unfortunate: Sotomayor is unlikely to retire, in part because there will be little pressure on her to do so. Hasan notes

In 2021, the progressive group Demand Justice sent a billboard truck to circle the supreme court building with the message: “Breyer, retire.” I joined in, too. “Retire, retire, retire,” I said in a monologue for my Peacock show in 2021. “Or history may end up judging you, Justice Breyer.”

So why is it okay to pressure Breyer to retire but not Sotomayor? 

There is no good reason, but thee is a reason and

This time round, Demand Justice isn’t taking a position on whether an older liberal justice should quit while a Democratic president and Senate can still replace them and, as HuffPost reports, “on the left, there is little open debate about whether she should retire.”

Well, of course, there isn't. And the reason there isn't echoes the reason why there is no push at all for Kamala Harris to step down. Karen Finney, the Democratic strategist who is quite pleased this state of affairs, believes that the risk of losing the presidency is an acceptable price to pay to maintain demographic purity. Citing an initial interest in a presidential bid

When you had people who were trying to test the waters, the party rose up and made it clear to those individuals — who were mostly white men — that to disrespect the vice president would not be well received by women and people of color within the party. They got a little bit of a smack in the face.

There are powerful figures in or about the Democratic Party who are less concerned with turning over the presidency to Donald Trump- or losing another Supreme Court seat to a selection made by a President Trump- than they are to the idea of losing a first. That would be the first black Vice President or the chance of the first black female President, and the first American of Latin descent to serve on the USA Supreme Court.

As Hasan advocates, Ginsburg might make the courageous and patriotic decision to step down. But Ruth Bader Ginsburg didn't, Kamala Harris won't, and it's not likely that Sonia Sotomayor will, either.

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Tweet of the Day- Obama's Garland

At completion of this segment, Emergency Medical Services arrived and took Alice Stewart to the nearest emergency room:

Dems THIS is how you deal with Republican lies. 👏 👏 @alfranken pic.twitter.com/Htzi7Tk4fE

— laura mooney (@lmresists) September 10, 2022

 

If it weren't obvious that Stewart was peddling false history, consider

In March 2016, Senate Majority Leader Mitch McConnell tried to justify denying a vote on Obama’s nomination of DC Circuit Court Judge Merrick Garland to replace Justice Antonin Scalia: “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”

There is no such tradition. The table shows the nine Supreme Court vacancies in place during election years in the Court’s post-Civil War era—once Congress stabilized the Court’s membership at nine and the justices largely stopped serving as trial judges in the old circuit courts. Those nine election-year vacancies (out of over 70 in the period) were all filled in the election year—one by a 1956 uncontested recess appointment and eight by Senate confirmation.

Franken left Alice Stewart figuratively battered and bloodied, as she deserved to be for spewing specious talking points. This is a price CNN pays for deliberately putting on the air Republicans who will distort and obfuscate, manipulate and lie, as long as they're not racist or hostile to immigrants.  They are what once were termed "moderate" Republicans or (George HW) "Bush Republicans" or in the modern parlance of Bill Stepien, "Team Normal" of Republicans.

It usually works. A Republican comes on spreading GOP fiction on health care, workers' rights, tax cuts, inflation, the courts, or "Hillary."-  and the host and Democratic guests are expected to hold their tongues and swallow it whole. Al Franken wouldn't play.

 

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Tweet Of The Day: Barr To Garland

— Walter Shaub (@waltshaub) June 9, 2021

Shaub is probably referring to the likes of senators Joe Manchin, Kyrsten Sinema, and possibly Jacky Rosen.  But someone closer to President Biden should be included among the "institutionalists in DC who think things worked before Trump (and) the cure for his abuses is to behave according to pre-Trump norms," thus "showing up to a 21st century battle with muskets."

The Washington Post reported that the Justice Department on May 28 asked

a federal judge to dismiss lawsuits against former president Donald Trump, former attorney general William P. Barr and other officials for last June’s violent clearing of demonstrators from Lafayette Square by U.S. military and police....

Lawyers for the ACLU said that despite legal precedents, the government’s defense would “authorize brutality with impunity” in the heart of Washington at one of the most symbolic spaces within the seat of the federal government.

Protesters in Lafayette Square, we may recall, were violently removed as Donald Trump staged a photo-op while holding a Bible, awkwardly and uncomfortably, in front of a church. Former federal prosecutor Paul Butler recently explained that the action was vigorously defended by then-Attorney General Bill Barr who, approximately thirteen months earlier, had

prepared a four-page letter purportedly describing the report’s “principal conclusions” that the Trump campaign did not collude with Russia and that Mueller would not charge Trump with obstruction of justice. Barr added that the facts contained in the report provided insufficient evidence of obstruction, and that in reaching this conclusion he had consulted with DOJ’s Office of Legal Counsel.

In response to a Freedom of Information Act lawsuit seeking the materials that Barr relied on, federal District Judge Amy Berman Jackson issued an opinion finding that Barr had been “disingenuous” when describing Mueller’s findings and ordered the release of the Office of Legal Counsel memo. Justice Department lawyers, under Barr, had objected to releasing the document on the basis of attorney-client privilege, but Jackson found that memo contained “strategic, as opposed to legal advice,” designed to support Barr’s determination to absolve Trump.

The judge characterized the Justice Department arguments against release as “so inconsistent with evidence in the record, they are not worthy of credence.” That’s actually a cogent description of the Trump administration’s approach to many issues; one might have expected the new sheriff in town to support the judge’s rebuke of the corrupt old regime. But Garland’s DOJ is standing by Barr’s DOJ — it released a heavily redacted version of the memo and is appealing Jackson’s order to provide the entire document to the public

And two days ago, The Daily Beast reported

In June 2019, New York magazine published an excerpt of (E. Jean) Carroll’s book in which she accused Trump of raping her inside a dressing room at the high-end Bergdorf Goodman department store in Manhattan sometime around 1995. Trump denied ever meeting Carroll, then later told The Hill: “Number one, she’s not my type. Number two, it never happened.” Carroll sued for defamation in New York state court.

The Justice Department, then led by Trump loyalist Bill Barr, moved the case to federal court, where it tried to push a legal theory arguing that the government can’t be sued for libel or slander and that therefore Trump is shielded because he’s a government employee—and was speaking out against Carroll in his official capacity as president.

In a filing with the Second Circuit Court on Monday, the Justice Department argued

Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job... the specific conduct need not constitute an act of ‘public service’ to be within scope” of employment that would grant him the federal government’s protection.

In her statement on Monday night, Carroll's attorney, Roberta Kaplan, noted

The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward.

Moreover, Trump's denials should not be legally protected because, as Kaplan recognized, they were "not the official act of an American President."

 

A few years after Richard Nixon in disgrace resigned the presidency because of the Watergate scandal, he told interviewer David Frost "when the President does it, that means it's not illegal." Decades later, Will Bunch would remind us "Those words were largely seen by the American public -- which continued to hold the ex-president in low esteem -- as a symbol of his unbowed arrogance."

 

Nowadays, a President doesn't himself have to claim unlimited power. He has attorneys for the Department of Justice to do it for him. William Barr fulfilled that role aggressively. Merrick Garland does it somewhat more subtly and respectably. Nonetheless, President Biden thus far seems to have the kind of Attorney General who will find no action he takes to be indefensible.

  

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