Tag: news

Democrats who bemoan President Donald Trump’s assaults on the independence of the judiciary and his attempts to create “alternative facts” cannot be taken seriously if they fail to condemn Senate Minority Leader Chuck Schumer (D–N.Y.) for threatening members of the Supreme Court who take positions he does not like and then falsely claiming he did nothing of the kind. If they remain silent, defend Schumer, or engage in obfuscating whataboutism, they will reveal themselves as unprincipled hacks who care about these issues only when they can be deployed as weapons against their political opponents.

“They’re taking away fundamental rights,” Schumer said yesterday at a pro-choice rally outside the Supreme Court as the justices considered the constitutionality of a Louisiana law requiring that physicians who perform abortions have admitting privileges at local hospitals. Turning to point at the Supreme Court building, he angrily added: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”

Although the nature of that “price” was vague, the meaning of Schumer’s comments was plain: If Justices Neil Gorsuch and Brett Kavanaugh, Trump appointees whom Schumer opposed, dare to cross him by voting to uphold Louisiana’s law, they will suffer unpleasant consequences. Yet after Schumer’s threat drew a rare public rebuke from Chief Justice John Roberts, the senator’s spokesman blatantly lied about what his boss had said.

“Women’s health care rights are at stake and Americans from every corner of the country are in anguish about what the court might do to them,” said Justin Goodman, Schumer’s communications director. “Sen. Schumer’s comments were a reference to the political price Senate Republicans will pay for putting these justices on the court.” He said Roberts’ response was based on “the right wing’s deliberate misinterpretation of what Sen. Schumer said.”

After threatening Gorsuch and Kavanaugh, Schumer did say this: “The bottom line is very simple: We will stand with the American people. We will stand with American women. We will tell President Trump and Senate Republicans who have stacked the court with right-wing ideologues that you’re gonna be gone in November and you will never be able to do what you’re trying to do now, ever, ever again. You hear that over there on the far right? You’re gone in November.”

So it is true that Schumer warned his Republican colleagues in the Senate about the electoral consequences of confirming justices apt to uphold abortion restrictions. But it is also undeniably true that he threatened those justices by name while pointing at the Supreme Court. That is not a “deliberate misrepresentation.” It is what actually happened. We have the video. To its credit, CNN, one of the president’s least favorite news outlets, forthrightly described Goodman’s version of events as “false.”

Given what Schumer actually said, Roberts’ response was perfectly understandable: “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

When it comes to defending the integrity of the judicial branch, Roberts has been evenhanded. Here is what he said in 2018 after Trump dismissed a decision against his asylum policy as the politically motivated work of “an Obama judge”:

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.

Roberts returned to that theme last December in his annual report on the judiciary. “We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity and dispatch,” he wrote. “As the new year begins, and we turn to the tasks before us, we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

Roberts was hardly the only public figure who objected to Schumer’s threat, which was criticized not only by conservative commentators but by legal scholars to their left. “These remarks by @SenSchumer were inexcusable,” Harvard law professor Laurence Tribe tweeted. “Chief Justice Roberts was right to call him on his comments. I hope the Senator, whom I’ve long admired and consider a friend, apologizes and takes back his implicit threat. It’s beneath him and his office.”

Neal Katyal, who served as principal deputy solicitor general during the Obama administration, concurred. “Thank you Larry for saying this,” he said. “I agree. We shouldn’t let Trump destroy decorum and respect across the board. I very much hope Senator Schumer apologizes, and we turn the page.”

The American Bar Association also chimed in. “The American Bar Association is deeply troubled by today’s statements from the Senate Minority Leader threatening two sitting justices of the U.S. Supreme Court over their upcoming votes in a pending case,” said ABA President Judy Perry Martinez. “Whatever one thinks about the merits of an issue before a court, there is no place for threats—whether real or allegorical. Personal attacks on judges by any elected officials, including the President, are simply inappropriate. Such comments challenge the reputation of the third, co-equal branch of our government; the independence of the judiciary; and the personal safety of judicial officers. They are never acceptable.”

Today Senate Majority Leader Mitch McConnell (R–Ky.) condemned Schumer’s comments on the Senate floor. “There is nothing to call this except a threat,” McConnell said. He accused Schumer of trying to “gaslight the entire country” by denying the substance of his tirade. “If he cannot even admit to saying what he said, we certainly cannot know what he meant,” McConnell said. “At the very best his comments were astonishingly reckless and extremely irresponsible.”

Sen. Josh Hawley (R–Mo.) wants to formalize that judgment. “I would call on Schumer to apologize, but we all know he has no shame,” he tweeted yesterday. “So tomorrow I will introduce a motion to censure Schumer for his pathetic attempt at intimidation of #SupremeCourt.”

Trump, who is in no position to claim the moral high ground on this issue, also got in his licks. “There can be few things worse in a civilized, law abiding nation, than a United States Senator openly, and for all to see and hear, threatening the Supreme Court or its Justices,” he tweeted yesterday. “This is what Chuck Schumer just did. He must pay a severe price for this!” Today he added that “Schumer has brought great danger to the steps of the United States Supreme Court!”

Schumer’s response today was only semi-apologetic:

I feel so passionately about this issue, and I feel so deeply the anger of women all across America about Senate Republicans and the courts working hand in glove to take down Roe v. Wade….Now, I should not have used the words I used. They didn’t come out the way I intended to. My point was that there would be political consequences…for President Trump and Senate Republicans if the Supreme Court, with the newly confirmed justices, stripped away a woman’s right to choose. Of course I didn’t intend to suggest anything other than political and public opinion consequences for the Supreme Court, and it is a gross distortion to imply otherwise. I’m from Brooklyn. We speak in strong language. I shouldn’t have used the words I did, but in no way was I making a threat.

Schumer feels passionately about abortion rights. Many opponents of Roe v. Wade feel passionately about abortion, which they view as tantamount to child murder. Would Schumer accept their passion as an excuse for threatening judges who overturn legal restrictions on abortion?

Schumer is from Brooklyn. Donald Trump is from Queens. Would Schumer accept Trump’s birthplace or his tendency to “speak in strong language” as an excuse for questioning the legitimacy of a “so-called judge” who ruled against him, for saying another judge had “an inherent conflict of interest” because his parents were born in Mexico, or for dismissing an appeals court ruling he did not like as “a political decision”?

Before his confirmation, Gorsuch, one of the Trump-nominated justices whom Schumer threatened, expressed concern about such comments. “I know the men and women of the federal judiciary,” Gorsuch said. “I know how hard their job is, how much they often give up to do it, the difficult circumstances in which they do it…I know these people, how decent they are, and when anyone criticizes the honesty or integrity or the motives of a federal judge, I find that disheartening, I find that demoralizing, because I know the truth.”

If you believe that is a bunch of self-serving claptrap, that Trump is right when he suggests that judges (when they disagree with him, at least) are doing nothing more than following their own political prejudices, then you believe an independent judiciary is an illusion. If judges are simply politicians in robes, if they cannot be expected to set aside their personal preferences when they decide cases, that whole branch of government, which plays a vital role in upholding the rule of law, protecting people’s rights, and preventing the government from exceeding its constitutional limits, is fundamentally illegitimate. Likewise, if you think, as Schumer does, that judges should decide cases based on “political and public opinion consequences.”

The rule of law requires conscientious judges who, whatever the differences in their interpretive approaches, honestly try to apply the law “without fear or favor.” It also requires resisting political interference in judicial decisions, no matter the source of that threat. This is a chance for Democrats to show they believe in that principle even when it is politically inconvenient.

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A commenter on the Tulsi Gabbard v. Google thread writes:

If Google had never received a dime of local, county, state, or federal payola, and if Google had never assisted any state actor in the collection, maintenance, and sharing of data obtained pursuant to use of Google, and if there was no immunity from civil liability conferred upon Google for intentionally or negligently publishing defamatory material, or republishing the same, or for de-platforming the speech of others, then, I might be inclined to side with the Googlemeister.

[1.] As a legal matter, it’s clear: The First Amendment, by its own terms, applies only to the federal government; the Fourteenth Amendment applies the same rules to state and local governments; but private institutions—search engines, newspapers, employers, universities, landlords, and such—aren’t covered. That’s the so-called “state action doctrine” (with the “state” referring to the government, whether state or federal), and it explains why a newspaper or Google or others can pick and choose what to publish, what ads to run, and the like.

[2.] The Supreme Court held, in Rendell-Baker v. Kohn (1982), that government funding doesn’t make private entities “state actors.” If the government attaches speech-restrictive strings to the funding (e.g., “We’ll give you these funds only if you promise to restrict speech”), then the government may be held responsible for the speech restrictions. But if the government just gives the funds, and the private entity imposes speech restrictions entirely on its own, then there’s no First Amendment problem. And the Court held this in a case where the recipient was a private school that got 90% of its funding from the government.

[3.] Likewise, getting government benefits—even being given legal monopoly status (which Google doesn’t have)—doesn’t make you a state actor bound by the Bill of Rights. See Jackson v. Metropolitan Edison Co. (1974) (on which Rendell-Baker relied).

[4.] Now this all has to do with whether the Bill of Rights constrains the private entity; statutes aren’t subject to the state action doctrine, unless they are specifically limited to restricting the government. Congress imposes many statutory restrictions on private entities, whether attached to funding (as in Title VI or Title IX, which generally require recipients of federal funds not to discriminate based on race or sex) or not (as in Title VII, which generally bars most employers from discriminating, whether or not they get government funds). States might impose similar restrictions, though perhaps not on inherently interstate communications media.

Sometimes the First Amendment might itself constrain such restrictions on private entities (see, e.g., the Boy Scouts v. Dale case). But in any event, it takes a statute to restrain private entities this way, and Congress has never passed a statute purporting to limit Google’s ability to restrict speech on its platforms.

[5.] Of course, I’m talking here about the law as it is; some might argue for rejecting the state action doctrine, or for enacting statutory constraints on Google and the like. But that’s not the law today; and, if you think it ought to be the law, you might want to consider just what its scope should be: If you live in government-subsidized housing, should you be barred from ejecting guests based on their speech or their religious beliefs, on the theory that what you do on government-subsidized property becomes “state action”? If you get social security or the Earned Income Tax Credit or a government salary or similar benefits, should you be barred from engaging in viewpoint discrimination or religious discrimination in any projects you set up using that money? If you have a hard-to-get professional license—you’re a doctor or a lawyer or some such—should you likewise be subject to the First Amendment or the Due Process Clause or the Equal Protection Clause in all your professional decisions?

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Sen. Elizabeth Warren (D–Mass.) announced today that is dropping out of the presidential race. Warren ran on a platform of arch-technocratic progressivism coupled with identity politics, and her steady release of proposals drove much of the race’s policy discussion. 

But after briefly rising to the top of the polls last fall, Warren’s campaign fell into a steady decline; she failed to expand her appeal beyond a core group of highly educated upper-middle-class voters. If elected, Warren promised to be a president who had mastered both the minutiae of governance and the social habits and language of the liberal elite. Her failure is a reminder that even Democratic voters don’t want a woke policy wonk in the White House. 

On the campaign trail, Warren called for trillions of dollars in new government spending on education and climate change, massive regulatory interventions into the structure and operations of large technology companies, criminal penalties for spreading voting disinformation online, and a radical revamp of corporate governance.

Although she distinguished herself from the explicit socialism of Sen. Bernie Sanders (I–Vt.), her closest rival, by insisting that she was a capitalist “to her bones,” Warren never really demonstrated much fondness for markets. More often than not, she appeared to view them as an inherently corrupt system that required aggressive management from an enlightened expert class. Warren was a capitalist who hated capitalism. 

No policy represented this worldview more than her wealth tax, a two-percent tax on households worth above $50 million, with an additional surcharge of 3 percent (later raised to 6 percent) on households worth more than $1 billion. Warren advertised the proposal as a fair, straightforward way to raise approximately $2.75 trillion tax revenue to pay for her education plans. All she wanted, she said, was for the very wealthy to pay a simple two-cent tax.  

But behind the scenes, the tax was hardly simple: It would require the government to accurately value unique assets, an inherently complex task that would require a giant new tax collection infrastructure. The revenue estimates drew intense criticism from economists across the ideological spectrum, including former Obama administration adviser Lawrence Summers, who argued that it would not raise nearly as much money as Warren expected, leading to shortfalls and deficits. Other analysts warned that, over time, the bulk of the tax burden would fall on workers in the form of lost jobs and wages. And Warren’s supporters made little effort to hide the idea that the tax was primarily punitive, designed as much to degrade fortunes as to raise revenue. 

It was health care, however, that sent Warren’s campaign into its eventual death spiral. After endorsing Sanders’ Medicare for All plan, a government-run system that would eliminate virtually all private insurance in four years, Warren was repeatedly pressed on the question of how to pay for the more than $30 trillion in estimated new government spending the idea would require. 

Initially, Warren hedged in ways that made it obvious she was avoiding the question and had merely hoped to bandwagon with Sanders, peeling off some of his voters without taking full ownership of the issue herself. 

Eventually, she released a plan that was simultaneously convoluted to the point of being unworkable and bad on the merits. After significant criticism, Warren released a second plan that called for implementing Medicare for All, a difficult political task in the most promising of circumstances, several years into her presidency. It was a tacit admission that she wouldn’t pursue single-payer health care at all. 

Warren’s have-it-both-ways approach had become a trap. Voters who didn’t want Medicare for All believed she was for it; voters who did believed she wasn’t genuinely invested in the issue. In a race that often revolved around health care policy, Warren had put herself in a no-win position. 

As her polling dipped, Warren ended up in a separate fight with Sanders over a years-old conversation in which Warren claimed that Sanders said a woman couldn’t win the presidency. Sanders denied ever having said such a thing, and in a debate-stage conversation, Warren accused Sanders of having called her a liar. The squabble appeared to backfire on Warren. As Reason‘s Matt Welch wrote, “By leaking a private conversation with Sanders in a not-particularly-convincing attempt to make him look possibly sexist, Warren’s campaign is engaging in the same kind of bad-faith word-policing that so many voters find off-putting.” 

By the time voting started, Warren had slipped noticeably in the polls. She finished third in Iowa, fourth in New Hampshire and Nevada, and fifth in South Carolina. On Super Tuesday, Warren not only failed to win a single state; she finished behind both Sanders and former Vice President Joe Biden in her home state of Massachusetts. 

Tonight, in her home state of Massachusetts, exit polling shows Elizabeth Warren:

– lost women to Biden by 10 points
– lost "very liberal" voters to Sanders by 7 points
– lost college + voters to Biden by 5 points
– lost M4A supports to Sanders by 14 points

— Tim Alberta (@TimAlberta) March 4, 2020

Warren won a high-profile dual endorsement from The New York Times, along with Sen. Amy Klobuchar (D–Mass.). But the Times endorsement was itself representative of the problems that plagued her campaign. Her strongest appeal was to the sort of people who write for The New York Times—highly educated, left-leaning, career-driven meritocrats who place a high-value on technocratic mastery. But even the Times editorial board couldn’t bring itself to exclusively endorse her. The dual endorsement seemed to suggest that she was a fine candidate—but not obviously the best one. 

Warren’s weak performance made clear that her theory of the race was flawed: Both her strategy (to peel off persuadable Sanders voters while maintaining a nominal appeal to moderates) and her tactics (selective leaks against Sanders, Medicare for All two-stepping) weren’t working. It’s probably no surprise that voters concluded they didn’t want Warren, the plan-for-everything candidate, when her actual campaign didn’t go according to plan.

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