Author Archives: Sheila

When Words Lose Their Meaning….

Before I was a lawyer, I was a high school English teacher, a position that required me to  explain how language communicates meaning–the roles played by denotation and connotation, and the often-unrecognized difficulty of getting one’s point across.

Recognizing that you may hear my use of term A to explain X  as an admission of Y is one  of the most frustrating aspects of political communication. it’s a problem that goes well beyond the obvious fatuity of slogans like “Defund the Police,” and it makes messaging particularly difficult for Democrats; the GOP base shares focused grievances that allow party strategists to communicate to a cohesive and receptive cult. Democrats who wring their hands over the party’s inept “messaging” aren’t wrong, exactly, but they fail to recognize both the inherent difficulties of language, and the Democrats’ need to reach people who occupy a broad spectrum of opinion.

A recent essay in the New York Times provides an example rooted in “dog whistle” days. It’s titled: “A Handy Guide to the Republican Definition of a Crime,” and it harkens back to that tried and true Republican demand for “law and order”–the meaning of which has changed rather dramatically.

If you think Republicans are still members of the law-and-order party, you haven’t been paying close attention lately. Since the rise of Donald Trump, the Republican definition of a crime has veered sharply from the law books and become extremely selective. For readers confused about the party’s new positions on law and order, here’s a guide to what today’s Republicans consider a crime, and what they do not.

Not a crime: Federal crimes. All federal crimes are charged and prosecuted by the Department of Justice. Now that Republicans believe the department has been weaponized into a Democratic Party strike force, particularly against Mr. Trump, its prosecutions can no longer be trusted. “The weaponization of federal law enforcement represents a mortal threat to a free society,” Gov. Ron DeSantis of Florida recently tweeted.

The F.B.I., which investigates many federal crimes, has also become corrupted by the same political forces. “The F.B.I. has become a political weapon for the ruling elite rather than an impartial, law-enforcement agency,” said Kevin D. Roberts, the president of the right-wing Heritage Foundation.

And because tax crimes are not real crimes, Republicans have fought for years to slash the number of I.R.S. investigators who fight against cheating.

Having clarified why federal misbehaviors no longer qualify as criminal, the essay explains the current GOP approach to the labeling of state and local crime: if it happens in an urban area or in states run by Democrats, it’s a crime.

On the other hand,

Not a crime: Any crime that happens in rural areas or in states run by Republicans.
Between 2000 and 2021, the per capita murder rate in states that voted for Donald Trump was 23 percent higher than in states that voted for Joe Biden, according to one major study. The gap is growing, and it is visible even in the rural areas of Trump states.

But this didn’t come up when a Trump ally, Representative Jim Jordan of Ohio, held a hearing in New York in April to blast Manhattan’s prosecutor for being lax on crime, even though rates for all seven major crime categories are higher in Ohio than in New York City. Nor does House Speaker Kevin McCarthy — who tweets about Democratic “lawlessness” — talk about the per capita homicide rate in Bakersfield, Calif., which he represents, which has been the highest in California for years and is higher than New York City’s.

Republicans now include under their motto of “law and order” the “crimes” of abortion and transgender care, prohibition of which they piously frame as protection of children. (As the essay notes, GOP solicitude for the young doesn’t extend to regulating the guns that are the leading cause of American children’s deaths.)

There are other  GOP “definitions.” If Hunter Biden did it, it’s a crime. Trump and his offspring? Didn’t notice any wrongdoing–despite vast evidence of influence-peddling and self-dealing that would seem to violate the emoluments clause of the Constitution and any number of federal ethics guidelines.

And of course, there was Hillary Clinton’s use of a private email server, leading to the GOP’s righteous demands to “lock her up.” That was criminal behavior, unlike Trump’s obviously innocent efforts to overturn an election and his theft of classified materials.

Effective messaging and communication require clarity and simplicity. The GOP has mastered it. “Law and order” still means “arrest Black people,” but now it also means “if Republicans did it, it was lawful; if Democrats did it, it was criminal.”

Unfortunately, that simple message cannot be countered with an equally simple response; explaining why it is dishonest requires facts and logic–and listeners.

Communication is hard.

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Joe Biden

Let me begin this post with an admission: I am older than Joe Biden, so I know a little something about the diminishing energy levels that accompany aging. I sometimes (okay, often) blank on words. On the other hand, I have a significant well of life experience to draw on, and so far, at least, I’m reasonably confident that the lessons of that lifetime have more than compensated for the relatively minor deficits of aging.

And I am over the constant media handwringing about Biden’s age. 

Sure, given the challenges of aging, I wish Biden was younger–but after looking at what he has accomplished over the past three years by drawing on his lifetime of political and governmental experience, I realize that significant trade-offs would be involved. (Unlike Trump–who is only 4 years younger– Biden spent his time acquiring the knowledge and skills that have made him a very consequential President.)

In the last three years, America’s economy has added more than 13 million jobs—including nearly 800,000 manufacturing jobs. We’ve unleashed a manufacturing and clean energy boom. In 2021 and 2022, more than 10 million applications were filed for new small businesses—the strongest two years ever recorded.  Since the pandemic, America has had the strongest growth of any leading economy in the world. Inflation has fallen for 11 straight months.

As my middle son observed, “Biden is the first President I’ve voted for who has exceeded my expectations.”

And as an article in the New Republic argues, there needs to be more recognition of the skills Biden brought to the job.

Nobody seems to have noticed this, but over the course of the spring, the country’s four leading freight rail carriers agreed to grant the vast majority of their workers paid sick days.

Everybody remembers what happened last December. The workers threatened to strike over such days, among other issues. President Biden, generally very friendly toward labor, made it illegal for the workers to strike. He was criticized by unions and workers and fellow Democrats and liberal media outlets, this one included….

When the workers prevailed, the International Brotherhood of Electrical Workers  explicitly acknowledged that the Biden administration had

played the long game on sick days and stuck with us for months after Congress imposed our updated national agreement. Without making a big show of it, Joe Biden and members of his administration in the Transportation and Labor departments have been working continuously to get guaranteed paid sick days for all railroad workers.

As the article argued, the administration needs to start “making  big show” of such accomplishments.

Biden has been a terrific president. The big legislation. The way he played Kevin McCarthy on the debt deal. The global leadership against Putin. The plain human decency restored to the White House after four years of self-obsessed thuggery. Oh—the 13 million jobs created since he took office, which is more jobs in 28 months than created under any other president, in all of our history, in a full four-year term.

As Jennifer Rubin recently wrote in the Washington Post, Biden has an economic record that has been working far better than most people anticipated but that the electorate doesn’t yet recognize.

 
The economy has created 13 million jobs, inflation has been more than cut in half, huge investments are being made in infrastructure and green energy, wage growth has begun to outpace inflation, the first drug price controls are going into effect and the biggest corporations will finally be forced to pay something in federal taxes. Yet polls show voters incorrectly think we are in a recession and remain negative about the economy.

As Robert Hubbell recently reminded us, “The constant hum of investigations into Trump’s many crimes is obscuring one of the great modern presidencies.”

Historians will look back in wonder at what Biden achieved in a presidency that began mid-pandemic before the smoke of a failed coup and insurrection had cleared. Despite those obstacles, his legislative record rivals or exceeds that of every president since FDR—a president who was mired in controversy throughout his tenure. 

The Biden Administration has a three-part vision: targeting investment, empowering workers, and promoting competition. That vision includes enforcing antitrust rules and allowing Medicare to negotiate for lower drug prices. (Recent results: cheaper insulin and real wage growth.)

As the New Republic reminds us,

Liberals have a list of 50 things they want government to do, and they want those things done fast and to completion. Conservatives have a list of about two things they want government to do: Cut taxes, and punish people they disapprove of morally. For a presidential administration, satisfying that first group is a lot harder than satisfying the second

As someone has pointed out, It’s not how old you are. It’s how you are old.

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The Court Plays ‘Let’s Pretend’

This rogue Supreme Court no longer shocks me; at this point, I’m numb with disbelief.

The day after overturning affirmative action for Black students (while leaving preferences benefitting Whites intact), the Court didn’t simply ignore decades of  precedent, it went even further afield, ignoring a constitutional rule against issuing “advisory opinions” in order to privilege a “sincere” religious belief.

Robert Hubbell addressed the constitutional principle:

Friday, the Court’s reactionary majority issued opinions in two cases that did not include a constitutional prerequisite to the Court’s jurisdiction—that the issue to be decided presents an actual “case or controversy.” That requirement is set forth plainly and simply in the Constitution. You can look it up.

Instead, the reactionary majority ignored the absence of jurisdiction and proceeded to issue decisions in fake controversies because they can. Looking for deeper meaning is pointless. The reactionary majority has reduced the rule of law to brute force in the service of religious nationalism.

In the days before the Court issued its opinion in 303 Creative, multiple media outlets had confirmed that the entire “case” was bogus. As Heather Cox Richardson explained, not only was the  online business non-existent, the “complaint” had been manufactured.

Smith claims she wants to start the business because “God is calling her ‘to explain His true story about marriage.’” She alleges that in 2016, a gay man approached her to make a website for his upcoming wedding, but yesterday, Melissa Gira Grant of The New Republic reported that, while the man allegedly behind the email does exist, he is an established designer himself (so why would he hire someone who was not?), is not gay, and married his wife 15 years ago. He says he never wrote to Smith, and the stamp on court filings shows she received it the day after she filed the suit.

The Guardian quoted him:

“I can confirm I did not contact 303 Creative about a website,” he said. “It’s fraudulent insomuch as someone is pretending to be me and looking to marry someone called Mike. That’s not me.

“What’s most concerning to me is that this is kind of like the one main piece of evidence that’s been part of this case for the last six-plus years and it’s false,” he added. “Nobody’s checked it. Anybody can pick up the phone, write an email, send a text, to verify whether that was correct information.”

So here we have a case that is entirely prospective, with a fact situation that is falsified–yet radical Justices were so eager to undermine government’s ability to protect marginalized populations from discrimination that they were willing to ignore a basic constitutional principle. As Hubbell correctly notes, the “decision authorizes American business owners to discriminate against LGBTQ people. Period. It is a first step, taken in bad faith and wrapped in lies.”

Richardson reminds us that segregation used to be defended as a deeply-held religious belief.

The widely criticized Court withheld issuance of its most indefensible decisions to the last, and the shameful and dishonest holding in 303 Creative was only one. The Court also ignored a clear lack of jurisdiction in the student loan forgiveness case. The actual party in interest—the corporation that serviced the student loan debt—had refused to file suit. Roberts ruled that the state of Missouri could assert the interests of a party not before the Court –a party that claimed no injury. 

The lack of jurisdiction wasn’t the only problem with that case: constitutional analyst Ian Millhiser wrote that the “decision in Biden v. Nebraska

is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as ‘major questions’ which has no basis in any law or any provision of the Constitution.”

The majority’s repeated dishonesty is simply stunning. Norman Ornstein said it best:

It is not just the rulings the Roberts Court is making,” he tweeted. “They created out of [w]hole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.

The arrogance is breathtaking.

Many Americans will undoubtedly cheer these wildly improper decisions because the results accord with their own policy preferences. That is very short-sighted; the Supreme Court was not created to be a super-legislature, and– as a colleague from my ACLU days used to warn– poison gas is a great weapon until the wind shifts.

Robert Hubbell is right: “The time for hand wringing and half-steps has passed. Real people have lost real liberties—starting with Dobbs and ending 303 Creative. If we do not stand up to protect them with every ounce of our will, we deserve what’s coming.”

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Protecting Privilege

There is very little I can add to the mountains of commentary criticizing or defending the  Supreme Court’s decision to overturn affirmative action in University admissions. I do think it is important, however, to focus on its impact, which will be almost entirely limited to colleges and universities that are considered “elite.” As several analysts have pointed out, the U.S. has somewhere between 3,500 and 5,500 colleges and all but 100 of them admit more than 50% of the students who apply. There are only about 70 that admit fewer than a third of their applicants.

In other words, the schools most Americans attend admit most of the people who apply to them.

The fact that the Court’s ruling will have a limited effect does not, of course, excuse a decision that race cannot be considered, but legacy status, recruited athlete status, and financial aid eligibility—aka  “affirmative action for Whites”– can.

Americans make competing arguments about affirmative action in college admissions: defenders point to the undeniable educational benefits of diversity in the classroom and  the persistent effects of this country’s history of racial injustice; opponents point out that perceptions of favorable treatment diminish recognition of individuals’ accomplishments, and that race is no longer a clear proxy for disadvantage (should a Black doctor’s son who attended cushy private schools have a “leg up” over a poor White applicant?)

The fact that most perceptions about admissions aren’t accurate–I’ve served on admission committees–doesn’t mean they aren’t damaging.

The Court’s decision reminded me of a long-ago discussion with a relative. She was about my age, and we both had sons who were entering college. She was incensed that one of her sons had failed to gain admission to a particular, competitive school (I no longer remember which one), and attributed his rejection to affirmative action. If there wasn’t “favoritism for ‘those people,’ she was absolutely convinced her son (who was actually pretty unimpressive) would have been accepted.

I’ve read bits and pieces of the dissents, and–as a lawyer–find them persuasive. But as we’ve seen with other decisions of this radical Court, nuanced  legal arguments rarely translate accurately into the ensuing political and social debates.

As the months pass, I may revise my current assessment of the impact of this decision, but right now, here’s what I see:

  • People like my relative will be deprived of an argument that they use to justify their (already obvious) racial grievance.
  • America’s changing demographics–a change that has already triggered the nasty expression of overt bigotries–will ensure the continued diversity of the great majority of university classrooms–especially as so many colleges are seeing fewer applicants and experiencing fiscal challenges.
  • The impact of the decision will fall almost entirely on the elite institutions that produce the most privileged members of American society. The Chief Justice’s ruling (aptly described by Justice Jackson as a “let them eat cake” decision) will protect his alma mater and other elite universities from the equalizing effects of a more diverse student body.

The truth is, those elite universities are already experiencing what has been called the “gamification” of admissions. Families with the means to do so have engaged in multiple efforts to assure their offsprings’ success, from coaches to help with essays and SAT preparation, to actual bribes that led to jail terms for some celebrity parents.

What would a fair process look like? After all, the use of race–or legacy status, or athletic prowess, or wealth–is almost always applied to a pool of applicants all of whom are eligible for admission. Arguments about merit are beside the point–these schools get many more applicants who meet or exceed their criteria than they can admit. The issue is: when you have identified 200 students who can clearly do the work, and you have room for only 100, how do you decide which ones to admit?

One of the better suggestions would substitute socio-economic status for race; given the continued structural racism of American society, Blacks should be well represented in an underprivileged cohort. (Letting more poor kids of any color into Harvard and Yale would certainly increase diversity…)

According to survey research, a majority of Americans oppose affirmative action in higher education. Much of that opposition is because people don’t understand how it actually works, but there’s no denying that a lot of it is simple racism and a defense of privilege.

Meanwhile, a rogue Court continues to eviscerate legal precedent, with consequences that will likely extend far beyond the issues of the cases being decided…

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Grievance Cults

In mid-June, a number of media sources reported on a cult in Kenya that advised members to starve themselves to meet Jesus. At the time of the reports, some 318 people had died, and another 65 taken into custody were still refusing to eat.

The cult leader–one Paul Nthenge Mackenzie– was a taxi driver before he founded Good News international church, promoted the Shakahola Forest as a refuge and ordered   his followers to starve so they could go to heaven before his predicted end of the world date. He also urged children not to attend school, saying that education was not encouraged by the Bible, and he had a YouTube channel where he encouraged his followers to reject modern aspects of life (You Tube isn’t modern??), like wearing wigs or using digital payment services. 

It’s unclear what grievances led Kenyans to join that cult.

Many Americans reading about this undoubtedly felt superior, assuming a degree of sophistication that would prevent acceptance of obviously lunatic ideas.

Think again.

Let me share with you just a few positions from the official Republican platform of the State of Georgia.

A section on “election Integrity” demands English-only ballots, an end to early voting, an end to automatic voter registration when getting a driver’s license, and an explicit county right to ban “Dominion” voting machines–the usual political power play.

Then it got mean. And weird.

The official position of Georgia schools shall be that there are only two sexes, biological males and biological females,” and, “We oppose transgender normalizing curriculum and pronoun use.” It’s not just “Critical Race Theory” that makes an appearance, but “The 1619 Project,” “DIE (Diversity, Inclusion, Equity,” “Social Emotional Learning,” and “Drag Queen Story Hour” come up, too, all of which are pretty much shorthand for “right-wing propaganda hack Christopher Rufo is my guiding light and I will promote whatever he says in whatever words he says it because I, as a lowly Georgia Republican, have no brain for doing brain-thinking on my own.”

There’s a specific section banning state funds from being used to “enable participation with, or show support for” what they call “Globalist Organizations,” like the World Health Organization or the United Nations. These are paranoias from the decaying John Birch Society but filtered back through thinly veiled “globalist” rhetoric to make it even more clear that Georgia Republicans mean it in an antisemitic way.

There is also opposition to the “Great Reset” (whatever that is) and to attention to “Environmental, Social, Governance (ESG)”.

There’s a very evasive section opposing the removal of “any” monuments or other honors honoring “veterans of any conflict,” which would almost pass as a phrase not specifically intended to protect traitors of the Confederacy if they didn’t tack on a reference to racist traitor monument Stone Mountain at the end of it.

And of course there’s support for a total abortion ban.

There is also support for a ban on prescribing puberty blockers, and a call to “Protect Georgia Food from Vaccines.”

The Georgian who posted this description noted that the state’s governor, Brian Kemp, and its Secretary of State, Brad Raffensperger, hadn’t attended their party’s state convention, despite the fact that

 This isn’t the riffraff of the base; these people are at least committed enough to Republicanism to pretend to be “delegates,” at least until Saturday afternoon rolls around and they’ve had enough pretending at civics for the day. And there’s nothing they can think of that needs fixing in the nation, nothing at all, except to make sure that “Drag Queen Story Hour” and “CRT” and “Globalist Organizations” get what’s coming to them. The party is for nothing; it’s only against whatever the last non-Republican said, anywhere, ever.

The poster’s rant–and it was a rant, albeit an informative one–made me think of the videos of the January 6th insurrection: the QAnon guy with the horns, the large number of confederate flags and flags purporting to represent Christianity–the sheer insanity of it all.

Kenyans followed the lunatic ravings of Paul Nthenge Mackenzie. The January 6th rioters and (as of April, 2023) seventy percent of self-identified Republicans still support  the equally insane ravings of Donald Trump.

The bottom line: if they want to win their primary elections, even rational Republican candidates running for municipal and state offices have no choice but to pander to the majority of truly deranged members of what is no longer a political party but a racist, anti-Semitic, misogynist “grievance” cult.

That reality is what has led so many former Republicans to become”Never Trumpers.” 

Until and unless the GOP returns to sanity or is replaced by a genuine political party, those of us who haven’t drunk the Kool-Aid need to vote straight Blue.

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