Sheila – Page 112 – Sheila Kennedy

History Repeats Itself

One of the most disconcerting realizations triggered by the election of Donald Trump and the various rages of MAGA Republicans has been my realization that there are many more haters in the American public than I had ever imagined. If survey results and academic research are to be believed, these fearful and angry people comprise some 25-30% of our “body politic”–and they are coming for the rest of us: Blacks, Jews, Muslims, LGBTQ+ folks…anyone who isn’t a White Christian.

Not a majority, thankfully, but a substantial and incredibly dangerous minority–made infinitely more dangerous by anti-democratic political mechanisms (gerrymandering, the Electoral College, the filibuster) that allow them to exercise far more power than they would be entitled to on the basis of raw numbers.

The New York Times recently ran an essay by Michelle Goldberg tracing differences between the Christian Nationalism favored by Trump and his supporters, and the version being developed by Ron DeSantis.

As she noted,

The issue isn’t whether the next Republican presidential candidate is going to be a Christian nationalist, meaning someone who rejects the separation of church and state and treats Christianity as the foundation of American identity and law. That’s a foregone conclusion in a party whose state lawmakers are falling over themselves to pass book bans, abortion prohibitions, anti-trans laws, and, in Texas, bills authorizing school prayer and the posting of the Ten Commandments in classrooms.

Goldberg reported on the recent ReAwaken America Tour, “a Christian nationalist roadshow co-founded by the former Trump national security adviser Michael Flynn.” Two of the speakers on that tour were jettisoned when the tour arrived in Miami because of negative publicity over their praise of Hitler, although they remain on the group’s website.

Unsurprisingly, Trump called in to offer his unrestrained support.

Goldberg notes that DeSantis is “fluent in the language of the religious right, and strives to check all its policy boxes”.

Put on the full armor of God. Stand firm against the left’s schemes,” he said at the Christian Hillsdale College last year, substituting the “left’s schemes” for the “devil’s schemes” of Ephesians 6:11. In addition to the abortion ban and his war on “woke” education, he will almost certainly sign a recently passed bill intended to keep trans people from using their preferred bathrooms in government buildings, including schools.

As Goldberg notes, the question is whether rank-and-file religious conservatives care more about consistency or charisma. “DeSantis treats Christianity as a moral code he’d like to impose on the rest of us, Trump treats it as an elevated status that should come with special perks.”

Both are terrifying–and both are eerily reminiscent of the significant pro-Nazi movement in the United States during the interval between the first and second World Wars. Most of us today are unaware of just how robust that movement was–it became considerably less fashionable once we entered the Second World War (although some American corporations that traded with Germany continued to do so even after declarations of war).

I was certainly unaware of the extent of American pro-Nazi sympathy.

In 1933, Rudolf Hess, then deputy führer of Germany, authorized formation an official American branch of the Nazi Party, to be known as the Friends of New Germany in the U.S. Although based in New York, it had a strong presence in Chicago, and it was openly pro-Nazi. According to historians, members stormed the German-language newspaper New Yorker Staats-Zeitung and demanded that the paper publish articles sympathetic to Nazis.

The German American Bund formed in 1935 and lasted until America formally entered World War II. Its goal was a united America under Nazi ideology. It was anti-communist and anti-Semitic. Taking inspiration from Hitler Youth, the Bund had a youth division– members “took German lessons, received instructions on how to salute the swastika, and learned to sing the ‘Horst Wessel Lied’ and other Nazi songs.”

The Bund continued to justify and glorify Hitler and his movements in Europe during the outbreak of World War II. After Germany invaded Poland in 1939, Bund leaders released a statement demanding that America stay neutral in the ensuing conflict, and expressed sympathy for Germany’s war effort. The Bund reasoned that this support for the German war effort was not disloyal to the United States, as German-Americans would “continue to fight for a Gentile America free of all atheistic Jewish Marxist elements.”

The Bund didn’t disband until the day after the bombing of Pearl Harbor.

It’s impossible to read today’s news without seeing the parallels–and concluding that the pro-Nazi sentiments that led to the Friends of New Germany and the German-American Bund have simply remained underground until encouraged to emerge by the MAGA movement and its would-be fuhrers.

We can only hope that it won’t take another World War to defeat them.

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Losing My Faith

Faith isn’t only important for religions that emphasize faith over works.

Living emotionally healthy lives also involves having faith in our families and friends, and in our social institutions. Faith in the trustworthiness of government is critically important to the maintenance of a democratic polity–and after many years, I’ve lost my (undoubtedly naive) faith in part of America’s government–the Supreme Court.

It was bad enough watching Brett Kavanaugh engage in his very un-judicial hysterical rant during his confirmation. It was infuriating when Mitch McConnell publicly displayed the game-playing that goes into elevating nominees to the highest court in the land. And of course, the almost-daily revelations about Justice Thomas are enough to make an ethical lawyer gag.

The rank dishonesty of today’s Court–on display when Alito’s theocratic impulses won majorities in Hobby Lobby and Dobbs–are far from the only evidence that the Court is not the collection of thoughtful, dispassionate legal analysts I once fondly believed.

A recent book by Stephen Vladeck focuses on the Court’s increased use of the shadow docket. Vladeck shows how the conservative justices ignored decades-old norms by using that docket, which doesn’t require briefing or consideration of the merits, to issue a series of shadowy unsigned and unexplained emergency orders.

The Shadow Docket was created as a mechanism to deal with issues requiring an immediate ruling on procedural matters, such as scheduling, or situations requiring maintenance of the status quo until the case could be considered on the merits, to avoid irreparable harm to a litigant.

Vladeck’s book describes the largely unnoticed shift towards what he calls “furtive justice.” “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” argues that rightwing justices have “abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.”

Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.

It shouldn’t surprise us that the current Court is experiencing a crisis of legitimacy, but like many lawyers, I stubbornly believed that the Court’s dysfunctions were of relatively recent vintage. (Thanks, McConnell!)

Then I read Erwin Chemerinsky’s 2015 book: The Case Against the Supreme Court.

Chemerinsky is one of my legal heroes. He’s an American legal scholar widely respected for his studies of constitutional law and federal civil procedure. Since 2017, he’s been the dean of the UC Berkeley School of Law. (I was once on a panel with him, and he was erudite and self-effacing and altogether charming.)

The book is a scathing critique of the Supreme Court for failing–throughout its history– to carry out its most important responsibilities at critical moments. According to Chemerinsky, the two “preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities.”

In the book, Chemerinsky goes through the Court’s jurisprudential history, identifying case after case in which the Court failed to take a stand for constitutional rights and principles. He gives example after example of the Court’s “decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis.” “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect.”

Chemerinsky acknowledges that the Court has occasionally performed as we would hope, in cases like Brown v. Board of Education, but even the Warren Court–a high-water Court in the opinion of most legal scholars– doesn’t escape reproof. (He details in one chapter how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments.”)

Chemerinsky absolutely eviscerates the Roberts Court–and that was in 2015, before Gorsuch, Kavanaugh and Barrett– enumerating the many ways in which that Court continues to favor the powerful over citizens in a wide range of areas from generic drug manufacturers to voting rights.

The book does provide a laundry list of reforms that might ameliorate the deficiencies: term limits for the Justices, several changes to the way the Court communicates, and –importantly–rigid ethical requirements and recusal procedures.

Vladeck and Chemerinsky–and the Roberts Court–have disabused me of my prior, naive faith in the Court. The domination of Congress by the GOP’s version of the Keystone Kops had previously removed any remaining confidence or faith in that body.

That leaves one leg of a three-legged stool……

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The Culture Warriors Are Coming For Your Schools

For at least the past decade, pundits reporting on the steady degradation of American political life have argued that America’s far-too-apathetic polity wouldn’t act “until we hit bottom.”

I think we’re there.

Posts and comments to this blog regularly grapple with the widespread lack of civility–not to mention intelligence–in public life. There’s the in-your-face bigotry, the denial of science and evidence, defense of the ever-widening gap between the rich and the rest, and the daily assaults on democracy and democratic norms.

Those very unAmerican behaviors and beliefs have recently been joined by an all-out MAGA attack on public education. GOP legislatures have diverted education funding to fundamentalist religious schools, Republican administrations are banning books, and extremists have taken over an uncomfortable number of school boards.

I recently came across an NBC report detailing one such takeover, in Colorado.

Woodland Park, a small mountain town that overlooks Pikes Peak, became the first — and, so far, only — district in the country to adopt the American Birthright social studies standard, created by a right-wing advocacy group that warns of the “steady whittling away of American liberty.” The new board hired a superintendent who was previously recalled from a nearby school board after pushing for a curriculum that would “promote positive aspects of the United States.” The board approved the community’s first charter school without public notice and gave the charter a third of the middle school building.

Among other moves that especially alarmed teachers was the decision by the new superintendent not to reapply for the grants that covered the salaries of counselors and social workers. When challenged, he told staff members that he “prioritized academic achievement, not students’ emotions. We are not the department of health and human services.” When asked if taxpayers would get a say in these changes, he said that they already had — when they elected the school board.

Woodland Park offers a preview of how quickly a new majority can move to reshape a district — and how those battles can ripple outward into the community. Some longtime residents say that the situation has grown so tense, they now look over their shoulder when discussing the school board in public to avoid confrontation or professional consequences…

When asked to respond to criticism from school personnel and parents, Illingworth, the board’s vice president, replied in an email: “I wasn’t elected to please the teacher’s union and their psycho agenda against academic rigor, family values, and even capitalism itself. I was elected to bring a parent’s voice and a little common sense to the school district, and voters in Woodland Park can see I’ve kept my promises.”

As the school year winds down, many of the Woodland Park School District’s employees are heading for the exit, despite recently receiving an 8% raise. At least four of the district’s top administrators have quit because of the board’s policy changes, according to interviews and emails obtained through records requests. Nearly 40% of the high school’s professional staff have said they will not return next school year, according to an administrator in the district.

While Colorado is rapidly becoming a Blue state, Woodland Park is a mostly white, middle-class city of 8,000 people up a mountain pass from Colorado Springs. The community voted for Donald Trump over Joe Biden by 2-to-1 a year earlier.

When teachers complained about Board decisions, the Board’s vice-president accused the teachers’ union of attempting to organize a “coup,” and issued a barely-veiled threat, instructing the Superintendent to make “a list of positions in which a change in personnel would be beneficial to our kids” and “help the union see the wisdom in cooperation rather than conflict.”

The article is lengthy, and much of what the new board has done is genuinely appalling. Case in point: the Board’s adoption of the American Birthright social studies curriculum referenced above, without any prior consultation with social studies teachers.

American Birthright materials emphasize patriotism, argue that the federal government should have no authority over public schools and say teachers should not encourage civic engagement, such as registering to vote or petitioning local lawmakers on issues students care about.

The curriculum was based on input from dozens of right-wing groups and activists, including the Claremont Institute, the Family Research Council and Moms for Liberty. Proponents defend it as a “bipartisan” alternative to coursework described as “hijacked by liberal concepts.” It’s heavily biased toward the right (for example, it includes Bill Clinton’s impeachment but not Donald Trump’s.)

The Colorado State Board of Education rejected American Birthright in October. The National Council for the Social Studies, a professional trade group for educators, issued a rare warning against using it.

You really need to read the whole thing.

If America hasn’t hit “bottom” I don’t know what bottom would look like…..

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It Isn’t Just In MAGA-World

Let’s be honest: believing the people who tell you what you want to hear is a trait shared by all humans–Left, Right and Center. There’s a reason researchers study confirmation bias–the current terminology for what we used to call “cherry-picking the facts.”

Just one recent example: MAGA folks who are frantic to believe that Joe Biden is just as corrupt as Donald Trump (okay, maybe not quite that corrupt…) have latched onto a report issued by James Comer, a Republican House member determined to find something to support that accusation. Unfortunately, as TNR (among many other media outlets) has reported, there just isn’t anything that we might call “evidence” to support that desired belief.

The House GOP accused Joe Biden and his family on Wednesday of engaging in business with foreign entities—but were unable to provide any actual evidence linking the president to any wrongdoing.

House Oversight Committee Chair James Comer released a 65-page memo detailing a sprawling investigation into Biden and some of his relatives, particularly his son Hunter Biden. Nowhere in the massive document was there a specific allegation of a crime committed by Biden or any of his relatives.

During a press conference explaining the investigation, Comer was asked if he had evidence directly linking Biden to corruption. The Kentucky Republican hemmed and hawed but ultimately admitted he didn’t.

It’s easy enough to see confirmation bias at work when a commenter to this blog “cites” to Comer, a lawmaker who has publicly admitted that he “intuited” misbehavior by the Biden family, despite the fact that even Fox “News” personalities have admitted that there’s no there there. But it isn’t only folks on the Right who engage in confirmation bias–and the strength of that human impulse to cherry-pick is about to get a test on steroids.

Researchers have recently warned about the likely misuse of AI--artificial intelligence–in producing misleading and dishonest political campaigns

Computer engineers and tech-inclined political scientists have warned for years that cheap, powerful artificial intelligence tools would soon allow anyone to create fake images, video and audio that was realistic enough to fool voters and perhaps sway an election.

The synthetic images that emerged were often crude, unconvincing and costly to produce, especially when other kinds of misinformation were so inexpensive and easy to spread on social media. The threat posed by AI and so-called deepfakes always seemed a year or two away.

No more.

Sophisticated generative AI tools can now create cloned human voices and hyper-realistic images, videos and audio in seconds, at minimal cost. When strapped to powerful social media algorithms, this fake and digitally created content can spread far and fast and target highly specific audiences, potentially taking campaign dirty tricks to a new low.

The implications for the 2024 campaigns and elections are as large as they are troubling: Generative AI can not only rapidly produce targeted campaign emails, texts or videos, it also could be used to mislead voters, impersonate candidates and undermine elections on a scale and at a speed not yet seen.

“We’re not prepared for this,” warned A.J. Nash, vice president of intelligence at the cybersecurity firm ZeroFox. “To me, the big leap forward is the audio and video capabilities that have emerged. When you can do that on a large scale, and distribute it on social platforms, well, it’s going to have a major impact.”

Some of the ways in which AI can mislead voters include the production of automated robocall messages that use a (simulated) candidate’s voice and instruct voters to cast their ballots on the wrong date, or phony audio recordings that sound as if a candidate was expressing racist views– AI can easily produce video footage showing someone giving a speech or interview that they never gave. It would be especially simple for AI to fake images designed to look like local news reports making a variety of false claims….The possibilities are endless. And what happens if an international entity — a cybercriminal or a nation state — impersonates someone?

AI-generated political disinformation already has gone viral online ahead of the 2024 election, from a doctored video of Biden appearing to give a speech attacking transgender people to AI-generated images of children supposedly learning satanism in libraries.

If we have trouble now knowing who or what to believe, today’s confusion over what constitutes “fact” and what doesn’t is about to be eclipsed by the coming creation of a world largely invented by digital liars employing tools we’ve never before encountered.

If regulators can’t figure out how to address the dangers inherent in this new technology–and quickly!– artificial intelligence plus confirmation bias may just put the end to whatever remains of America’s rational self-government.

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Who Decides?

I used to tell my students that the Bill of Rights, read as an organic whole, answers a deceptively simple question: who decides? Not “what decision should be made” but who gets to make it? Who chooses the book you read, the God you do–or do not–worship, the person you marry?

The Bill of Rights draws a line between decisions government can properly make and decisions that, in a free society, must be left to the individual. One of the reasons the Dobbs decision was so shocking was that –suddenly–the government was authorized to enter a zone of intimacy from which it had long been banned; as I have often remarked, the question was never “should abortion be legal or illegal”? The question was (and is) who should decide that question in an individual situation?

America’s raging culture war tends to focus on the extent to which our individual rights are protected from government interference. MAGA Republicans insist that government has the right–the duty!–to determine everything from your reading materials to your reproductive decisions. As many former Republicans have noted, the “war on woke” is really a war on the Bill of Rights, and a sharp departure from what used to be GOP orthodoxy.

This deviation from that past Republican orthodoxy isn’t limited to the usurpation of individual life decisions. The party has also jettisoned its former support for free markets, as Dana Milbank recently documented.

Can you remember when Republicans still believed in the free market?
It was sometime before Donald Trump started routine attacks on the “globalists” of Goldman Sachs and the leaders of large U.S. corporations; before Florida Gov. Ron DeSantis used tax policy to attack the Walt Disney Co. because it dared to disagree with his “don’t say gay” legislation; before congressional Republicans harassed social media companies and book publishers over alleged “censorship” of their views; before they threatened Delta Air Lines, United Airlines and Major League Baseball over their support for voting rights; before they vowed to use federal resources to retaliate against the U.S. Chamber of Commerce for backing a few Democrats; before Republican governors enacted laws overriding private employers’ coronavirus vaccination policies; and before GOP-led states moved to disrupt interstate commerce to block abortion access and morning-after pills.

This week brought the latest evidence that the former party of laissez-faire capitalism has reimagined itself in the image of a Soviet State Planning Committee. Republican lawmakers are now telling investors which businesses they can and can’t invest in — and which investment criteria they will be permitted to consider.

Republicans have taken the culture war to business, in efforts to prevent asset managers from considering “environmental, social and governance” criteria, or ESG, when making their investments. Milbank quoted Utah Attorney General Sean Reyes’ assertion that there is a “conspiracy” of ESG-minded investors.

He was particularly worried that “asset managers who collectively own significant percentages of utilities’ stock are improperly influencing the operations of those utilities.”

Imagine that! The shareholders who own a company are trying to influence its operations! Will nobody rid us of this capitalist menace?

Twenty-five Red State attorneys general have sued to block a federal regulation that allows retirement-plan investors to consider ESG standards. The rule doesn’t mandate that investors do so. It merely gives them the option.

As one Democratic critic of this interference with business decisions points out, these rules block asset managers from

considering whether a car company “is aligned with market expectations and preparing for the shift to electric vehicles,” whether a pharmaceutical company “has exposure to massive lawsuits because of its role in the opioid epidemic” or whether “health-care companies understaff their operations and jeopardize the safety of patients.. ..ESG is simply additional information that investment professionals use to assess risk and return prospects.”

In our current “through the looking-glass” world, Democrats are defending the free market against Republican support for a planned economy that mandates what businesses have to invest in. Shades of Soviet central planning!

When I first became politically active, I was drawn to principles espoused by the then-Republican Party, especially its recognition that individual liberty requires limiting the power of the state. There were and are good faith arguments about where the line should be drawn in a variety of situations (and widespread misunderstandings of what “limited” government means. “Limited” is not the equivalent of “small”–a limited government respects limits on its authority, not its size.)

A government that can dictate your prayers, your reading materials, your reproductive decisions and your business’s approach to investment isn’t just unAmerican–it’s heading toward Soviet-style totalitarianism or Taliban-style theocracy.

In a genuinely free society, the decisions citizens and businesses make are far less important than who has the right to make them.

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