Unreliable Advocate

Anti-trust crusader Matt Stoller, a critic of Barack Obama and of the Democratic establishment (but I repeat myself), is not a fan of Neal Katyal, often seen opining on MSNBC and CNN.

Stoller noted that Katyal's law firm marketing materials bragged that the latter "achieved landmark wins for Bristol-Myers Squibb limiting forum-shopping in mass torts cases, and for Wells Fargo reversing a decision allowing cities to sue under the Fair Housing Act."

So when Katyal tweeted "100 years from now, law students will read about this decision. It may be read alongside Dred Scott, Plessy v. Feguson, Korematsu, and the Chinese Exclusion Act cases," an unimpressed and skeptical Stoller responded

Katyal makes money selling corporate legal services as a rainmaker for #BigLaw firm Hogan Lovells's Supreme Court practice. He endorsed Gorsuch for the court and warmly praised Kavanaugh. I don't understand the credulity towards an obvious con artist.

A charge fairly extreme (except as applied to anyone in Donald Trump's inner circle) as "an obvious con artist," should not be taken as face value. However, in a January 2017 op-ed in The New York Times, Katyal wrote

I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.

One down, one to go. Soon after President Trump nominated Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court, we learned

Katyal, a former acting solicitor general in the Obama administration, spoke highly of Kavanaugh’s work ethic and character.

“It’s very hard for anyone who has worked with him, appeared before him, to frankly say a bad word about him,” Katyal said. “This is an incredibly brilliant, careful person, but someone who will move the court in a conservative direction.

“In my practice, we basically have a rule that if there’s a Kavanaugh clerk who applies, we hire that person. He’s legendary for his preparation,” Katyal added. “This is a guy who reads … every one of those opinions, sits down with his clerks on Fridays, and goes through them, each one, every single opinion. He is an unusual judge, so I think it will be a very interesting set of hearings.”

On Thursday, the Supreme Court granted a temporary stay to a Louisiana law that required doctors performing abortions to obtain admitting privileges at a nearby hospital. Had it gone into effect, possibly all facilities providing abortions in the state may have shut down. Chief Justice Roberts joined the four liberal judges, with justices Gorsuch and Kavanaugh- the latter writing the minority opinion- taking the forced birth position.

Katyal was wrong about Gorsuch and Kavanaugh, and that's not all. In May 2018 he claimed "The basic point is that prosecutors should not be able to tie up the work of a president," a highly arguable point. The same month, he cast further doubt on remedying criminal behavior of a president by indictment, a view he has been reticent to express on MSNBC.

Matt Stoller believes there is a Democratic "deep state," which is "not the politicians, not the consultants, but Big Law. That's where power lives." Unfortunately, referring to it as a "deep state" enhances a Republican talking point. But with the likes of Neal Katyal, an acting solicitor general in the Obama Administration, defender of global warming and friend of The Federalist Society, it's hard to argue with him.

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Whistling Dixie

Give it up for Alexandria Ocasio-Cortez. Castigated by conservatives for appearing "sullen" during most of the State of the Union address, Ocasio-Cortez responded "We’re flying without a pilot. And I‘m not here to comfort anyone about that fact."

Finally we have an elected official who will speak truth to power, never shade the truth and always keep her eye on the prize.

I'm joking. Prior to the vote in the Senate Judiciary Committee to pass the nomination of Brett Kavanaugh to the Senate floor, Ana Maria Archila famously confronted Republican senator Jeff Flake as he stood in an elevator. Afterward, Flake cast his "aye" vote on the condition that there would be an updated FBI investigation of Kavanaugh before the nomination would be decided in the full chamber.

There was in fact an investigation before the US District Court of Appeals Judge was approved 50 to 48. And so following to the State of the Union address on Tuesday, Representative Ocasio-Cortez appeared on MSNBC with her guest, Ms. Archila, and stated that Archila's act demonstrated

any normal person in any one moment can have the courage inside them to step up in a critical moment that can change the course of our country and I think that's what Ana Maria did in that moment in the elevator and it did change the proceedings of the vote. Senator Flake as a result of her testimony and the way she expressed her story asked for a further investigation before this vote proceeded.

It was only 34 days since becoming a member of the United States Congress, and already Ocasio-Cortez was declaring victory where there was none. She proclaimed "a critical moment that can change the course of history" because Flake "asked for a further investigation before this vote proceeded."

If (a huge "if") the Supplemental Background Investigation did change the course of history, it only added slightly to Brett Kavanaugh's margin of victory. 

The FBI investigation was under the control of the White House, with a strict time limit and the individuals to be interviewed subject to approval by Senate Republicans.  Neither Kavanaugh nor his accuser, Christine Blasey-Ford, was interviewed despite the plea of Blasey-Ford's attorneys.

Instead of the report itself being released, the Senate Judiciary Committee, headed by Republican Chuck Grassley of Iowa, issued an executive summary, which appeared to clear Kavanaugh. However, though the report concluded "there is no corroboration of the allegations made by Dr. Ford or Ms. Ramirez,"  USA Today reported at the time

an aide to a Democratic senator on the Judiciary Committee said Friday that the executive summary released by Republicans is "flat out wrong."

"We are prevented by Senate rules from saying how and why, and we choose to respect Senate rules," the aide said.

Assuming the aide was neither lying nor misinformed, the FBI report did not exonerate Brett Kavanaugh.

"Something is rotten in Denmark" goes the old saying. At the time, it appeared to most Democrats that the supplemental investigation was inadequate. In light of the remark of the anonymous aide, it appears that the investigation itself may have been nearly thorough but that the committee's majority misled the American public.

Democrats lost.  Enhancing his phony image as a thoughtful moderate, Jeff Flake won, as did senators Grassley and McConnell and President Trump. Nonetheless,  the courageous but ultimately ineffectual Ana Archila did not "change the course of history,"  however much Alexandria Ocasio-Cortez wants us to believe otherwise.

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The Newest Fans Of Donald Trump

The title of the video from The Guardian is "Trump surprised by response from women in white during State of the Union address."

The odds of that are slim and none, and slim is headed out of town on Amtrak headed south.

Donald Trump is a showman and master manipulator, whose political career was launched when he successfully pulled off the con of the century on "The Apprentice" as the billionaire, self- made businessman. In peak form, the President boasted "No one has benefited more from a thriving economy than women, who have filled 58% of the newly-created jobs last year."

Evidently unaware that the President had just trumpeted his stewardship of the economy, the women jumped up, cheered, and enthusiastically demonstrated their approval.  With perfect timing, Trump went with one of his most successful lies yet: "you weren't supposed to do that."

Of course they were. Donald Trump is the penultimate egotist, the man who is the best at everything, or so he tells us. Deeply egocentric, he understands that the female class of 2018 is not self-absorbed, but nonetheless absorbed in their identity as a group of women who fought the odds and won, usually beating a man, to become members of the United States House of Representatives.

Trump masterfully played to that group identity and in so doing, played the ladies. However, he wasn't done, crowing

Thank you, thank you very much. Don't sit yet- you're going to like this. And exactly one century after Congress passed the constitutional amendment giving women the right to vote, we also have more women serving in Congress than at any time before.  

Smiling and pointing, he was like the snake-oil salesmen of old, who also knew their audience. The women in white responded enthusiastically, roaring their approval with high-fives all around, at least among themselves. The camera panned to Ivanka and other the other women in the Trump entourage, standing, smiling, and applauding, with the implicit message: they're all-in.

As the attendees chanted "USA! USA! USA!", President Trump was understandably gratified that with the assistance of mostly male, Republican members of Congress, he had manipulated numerous and  presumably leftist Democrats to repeat a mantra associated with the GOP.  He graciously responded with a smile and "that's great. Very great. And congratulations, that's great."

No, congratulations to you, Mr. President. These women are arguably your most fervent political enemies and in a matter of moments, you turned them in front of a national audience into an exuberant (albeit temporary) addition to your base.They were played, happily so. And better yet: they probably don't even realize they were exposed and abused for your political advantage.








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Unusual Punishment

As a relatively slow- uh, er- careful reader, it was 12 or 13 minutes of my life I'll never get back from reading in Mother Jones' Nathlie Baptiste's article entitled "In Some States, the Death Penalty's Days Might Be Numbered." Now it's your time to give up five minutes of your life to read this post. And I thank you.

Baptiste writes

“There are always bills to abolish the death penalty,” Gregory Joseph the director of communications for the National Coalition to Abolish the Death Penalty says. “What we’re seeing now is they are actually moving.” In New Hampshire and Wyoming, for instance, repeal bills are pending in the legislature with decent chances of passing, and even in Louisiana and Kansas,  anti-death penalty advocates are catching winds of a growing movement to end the practice. Why? For the same reasons advocates have been arguing against the death penalty for years: It is arbitrary, racist, expensive, and does not deter crime...

Other states are also making inroads to getting rid of capital punishment. In Colorado, a bill has been introduced to abolish the death penalty and the newly-elected Democratic governor Jared Polis is anti-capital punishment and said that he would sign such a bill if it came across his desk. In Indiana, death row inmate Roy Lee Ward filed a lawsuit against the state seeking an injunction to stop executions and a court ruling that the state’s death penalty is unconstitutional. The suit is currently pending.

Later, and immediately before pivoting, Baptiste does acknowledge "And, despite President Trump’s affinity for capital punishment, the number of executions nationwide continues to remain at its lowest rate over the last 25 years."

 \

In the five states- New Hampshire, Wyoming, Louisiana, Kansas, and Colorado- cited by Baptiste, there has been in the past decade a grand total of one (1) execution. One: as in one-half of two and one more than zero. Baptiste does state  "And, despite President Trump’s affinity for capital punishment, the number of executions nationwide continues to remain at its lowest rate over the last 25 years."

It is, state-by-state on average, at its lowest in the past 25 years.  However, while states executed only 23 individuals in 2017 and 25 in 2018, there were exactly zero (0) in 2018 in those five aforementioned states.

Shhh. Don't tell anybody, but capital punishment affects very few people in the United States of America outside of Texas, in which there were 13 executions in 2018. Other states executed only 12 people last year; the federal government, none. The death penalty may well be on its way to extinction, except where it's used.

Color me unimpressed by the current activism. If death penalty opponents don't want to waste their time on the low-hanging fruit, try as Rachel Maddow would put it in other contexts) "the great state of Texas." Then I will be impressed, and exultant or outraged- depending on the circumstances. All the rest is noise.

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Just Say "No"

Charlie Pierce (who believes Ralph Northam should resign as governor of Virginia) points out

That the "revelation" of the yearbook photo is question has been a very successful ratfck by conservative oppo creeps who held onto it until the hue and cry over Northam's comments on a defeated abortion bill had been twisted far beyond what he actually said, and thereby weaponized fully.

When the photo of maybe-Ralph Northam, of Eastern Virginia Medical School, in blackface with an individual in a KKK hood, followed closely on the heels of the trumped-up GOP outrage over Governor Northam's remarksabout abortion, the timing seemed none-too-coincidental. Pierce evidently is aware that

Patrick Howley, editor in chief of the website Big League Politics, first reported Friday the existence of a photo on Northam’s page of his medical school yearbook depicting a figure in blackface standing next to another person in a Ku Klux Klan hood.

“It’s very easy to explain,” Howley, 29, said in an interview Saturday. “A concerned citizen, not a political opponent, came to us and pointed this out. I was very offended [by the photo] because I don’t like racism.”

The tip came after Northam’s comments on Wednesday about late-term abortions, he said. Howley declined to give any further information about his source, citing a confidentiality agreement. But he said it took him just a few hours to confirm that the photo was authentic.

The source of the tip appears to have been a medical school classmate or classmates of Northam who acted as a direct result of the abortion controversy that erupted earlier in the week, according to two people at Big League Politics, who spoke on the condition of anonymity because they were not authorized to discuss the matter publicly.

“The revelations about Ralph Northam’s racist past were absolutely driven by his medical school classmate’s anger over his recent very public support for infanticide,” one of the two said.

Pierce recognizes also

That the national Democratic Party, and national Democratic politicians, have learned nothing from the ACORN and Shirley Sherrod debacles and can be spooked into condemning one of their own with surpassing ease.

That the ratfck over Virginia Democratic politics is by no means over and the national Democratic Party better D up quickly against this kind of thing, because the only thing asymmetric in this particular asymmetric conflict is the way the Democrats still fight it.

But if the national Democratic Party wants to challenge this kind of thing, rushing to judge Governor Northam and pushing his resignation is not the way to do it.  However, it worked when ACORN was defunded, Shirley Sherrod fired by President Obama, and SenatorAl Franken persuaded by Democrats to resign. In each case, a pound of flesh was demanded, and  received.

This saga may not end whether Northam stays or goes because

Virginia’s lieutenant governor — who would replace Gov. Ralph Northam (D) if he decides to resign after admitting he once wore blackface — has denied allegations of sexual assault and threatened legal action against the conservative website that published the accusations.

In a statement released early Monday morning, Lt. Gov. Justin Fairfax’s office described the allegations as “unsubstantiated,” “defamatory and false.” He confirmed that the allegations of sexual assault were brought to the Washington Post “more than a year ago,” but the newspaper decided to ditch the story after it spent months investigating the claims, citing “the absence of any evidence.”

“The Lt. Governor will take appropriate legal action against those attempting to spread this defamatory and false allegation,” the statement said.

The allegations originated with Big League Politics.

With each incident in which the truth is either distorted or demolished, it becomes more difficult for Democrats to raise an objection. "Prostrate thyself" will be the order of the day and that is why- absent overwhelming evidence that Northam was in the offending photo- Governor Northam should resist calls for his resignation.

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A Clamor To Act In Haste

The sun rises in the east, sets in the west, and David Cay Johnston brings needed perspective to a rush to judgment:

In rush by Dems to pressure Democrat Ralph Northam to resign as @GovernorVA, let's remember that we want people to change, grow and improve. Better to replace, say, learned bigotry in youth with advocacy for equality as adults.#Redemption matters. https://t.co/KVzlQ0fSjz

— David Cay Johnston (@DavidCayJ) February 2, 2019

In rush by Dems to pressure Democrat Ralph Northam to resign as @GovernorVA, let's remember that we want people to change, grow and improve. Better to replace, say, learned bigotry in youth with advocacy for equality as adults.

#Redemption matters.

In the article to which Johnston linked, Washington Post columnist Karen Tumulty argues

There are many things that Virginia Gov. Ralph Northam (D) should say right now.

The first is that he is resigning.

Once he has done that, he also owes the Commonwealth of Virginia — and the rest of the country — a much fuller explanation.

A racist photo like the one he apparently chose to represent himself in his 1984 medical school yearbook does not just happen spontaneously. It is the product of something much larger — the culture that produced Northam, the kind of person he was. And there may indeed be a story of redemption in there somewhere. If there is, it is one that should have been told to the voters of his state long ago, so they could judge whether the man who put himself forward to lead them was who he said he was.

Facts first, CNN and especially Chris Cuomo assert. It's precisely because allowing yourself to be photographed in black face or a KKK hood "does not happen spontaneously" that facts- and details- matter. We don't have those details as of 3:30 p.m. Eastern time on Saturday.

And if it "does not happen spontaneously," the culture that produced Northam (and very likely, Mitch McConnell in part), is significant. It's significant in a way similar to the relatively high violent crime rate among American blacks is due to the culture- slavery, segregation, discrimination- whose effects persist and contribute to criminal behavior.

The governor of Virginia does owe the citizens and legal residents of his state an explanation- if he resists calls for his resignation. Clearly, Tumulty is calling for an explanation not to determine whether he can legitimately remain governor, but that he fall on his sword, plead for mercy, and be banished from public life altogether.

Whatever the wisdom of resignation, it is not the responsibility of the wrongdoer to fall on his knees and prostrate himself to a mere mortal. Nor should it be required that Ralph Northam resign, any more than it should be required (as it properly is not) for Steve King or Donald Trump to quit.

 The "failure to come to terms" with the photo constitutes a past failure, while it "openly speaks to a character flaw that is also part of who he is today."

Given that Tumulty believes a "failure to come to terms" with the photo "openly speaks to a character flaw that is also part of who he is today," she already has decided not only that there is no room for the redemption Johnston prefers, but that present character derives immutably from past transgression,

Moral certitude leaves no room for explanation, context, or consideration or other factors. A closed mind may preclude compassion, but at least it suffices for self-affirmation.

Update: Johnston has joined the (figurative) firing squad:



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God's Will?

It was not strategically unwise, nor necessarily inaccuratewhen

White House press secretary Sarah Sanders said she believes God wanted President Donald Trump to win the 2016 election, the Christian Broadcasting Network reported on Wednesday.

"I think God calls all of us to fill different roles at different times and I think that he wanted Donald Trump to become president, and that's why he's there," Sanders told CBN's David Brody and Jennifer Wishon, according to a transcript of the interview provided by CBN.

"I think he has done a tremendous job in supporting a lot of the things that people of faith really care about," Sanders added.

Shoring up support among white evangelicals is critical to Donald Trump's re-election effort, assuming there is one.  Nor can we mere mortals assume that God did not particularly want Donald Trump to become president. David Corn logically asks

Sarah Sanders on CBN: "[God] wanted Donald Trump to become president, and that’s why he’'s there."

So did God want @BarackObama to be president? Or did he take off those eight years?

Did he want the House Dems and @RepAOC to win in November? Or was he napping then?

— David Corn (@DavidCornDC) January 30, 2019 

Most people are familiar with Newton's Third Law: for every action, there is an equal and opposite reaction. It emerged to apply to physics, but also may address American national politics. 

Barack Obama was elected partly in response to the eight years of George W. Bush, who waged the deadly and futile Iraq War opposed by Illinois state senator Barack Obama. Eight years later, "no drama" Obama was replaced by Donald Trump, whose racial views, personality, character, and corrupt business background were roughly 180 degrees from his successor.

So perhaps God did will the election of Barack Obama, followed by the election of Donald Trump and subsequent return of control of the House of Representatives to Democratic control. If rejection of Trump and of his right-wing policies continues, a Democrat will be elected President in 2020 and the Senate probably turn Democratic in 2022, when 12 Democratic, and 22 GOP, seats are expected to be up for grabs. Additionally, it might explain the investigations of the President, his family member(s) and associates threatening Trump's presidency.

With a Democratic Senate, House, and presidency, there likely would be passage of the bill now known as HR 1, which would curb corruption in all three branches of government, extend voting rights, and help take money out of politics.

Or maybe, as is generally believed, God has a sense of humor while sitting in heaven. King David probably had it right when he wrote (Psalm2:4-6, ESV)

4 He who sits in the heavens laughs;

    the Lord holds them in derision.

5 Then he will speak to them in his wrath,

    and terrify them in his fury, saying,

6 “As for me, I have set my King

    on Zion, my holy hill.”

Alternatively, when Sanders claimed "he wanted Donald Trump to become President," she was merely substituting "he" for Vladimir Putin, James Comey, and an intimidated media effectively in the tank for candidate Donald Trump.

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