A Moment Of Clarity

I have previously cited and linked to Heather Cox Richardson’s daily Letters from an American, but a recent one deserves more than a passing mention. In it, Richardson does a masterful job of clarifying the stakes of November’s election.

She begins by reminding us of the events leading up to the choice we will face, reminding readers that–once it had become clear Trump had lost the 2020 election– he’d given up “all pretense of normal presidential behavior.” Not only did he try to overturn the election, ignoring the will of the voters, “his attack on the fundamental principle of democracy ended the tradition of the peaceful transfer of power established in 1797 when our first president, George Washington, deliberately walked behind his successor, John Adams, after Adams was sworn into office.”

Trump has continued to push the Big Lie, and his loyalists in the states have embraced that lie, undermining faith in our electoral system. His theft of enormous amounts of classified materials has compromised national security.

We know all this, although the recitation/reminder is important. But–as historians like Richardson are well aware–past is truly prologue.

Trump is not the same as he was in 2020, and in the past three years he has transformed the Republican Party into a vehicle for Christian nationalism.

In 2016 the Republican Party was still dominated by leaders who promoted supply-side economics. They were determined to use the government to cut taxes and regulations to concentrate money and power among a few individuals, who would, theoretically, use that money and power to invest in the economy far more efficiently than they could if the government intervened. Before 2016 that Reaganesque party had stayed in office thanks to the votes of a base interested in advancing patriarchal, racist, and religious values.

But Trump flipped the power structure in the party, giving control to the reactionary base. In the years since 2020, the Republican Party has become openly opposed to democracy, embracing the Christian nationalism of leaders like Hungary’s Viktor Orbán, who maintains that the tenets of democracy weaken a nation by giving immigrants, people of color, LGBTQ+ individuals, and women the same rights as heterosexual, native-born white men.

Richardson then underscores what most of us who follow politics know–that today’s GOP looks absolutely nothing like the Republican party of the past.

Rather than calling for a small federal government that stays out of the way of market forces, as Republicans have advocated since 1980, the new Trump Party calls for a strong government that enforces religious rules and bans abortion; books; diversity, equity, and inclusion programs; and so on. In 2022, thanks to the three extremists Trump put on the Supreme Court, the government ceased to recognize a constitutional right that Americans had enjoyed since the 1973 Roe v. Wade decision: the right to abortion.

The far-right Trumpers have paralyzed the House of Representatives.

Republican members who actually want to pass laws are either leaving or declining to run for reelection. The conference has become so toxic that fewer than 100 members agreed to attend their annual retreat that began today. “I’d rather sit down with Hannibal Lecter and eat my own liver,” a Republican member of Congress told Juliegrace Brufke of Axios.

Richardson ticks off some of the actions Trump has promised if he wins in November: purging the nonpartisan civil service created in 1883, in order to replace career employees with Trump loyalists; weaponizing the Department of Justice and the Department of Defense; rounding up 10 million people– “not just undocumented immigrants and asylum seekers but also those with birthright citizenship,” and putting them in camps, ignoring a “right that has been enshrined in the Constitution since 1868;” cutting Social Security and Medicare; and being a “dictator on Day One.”

She then enumerates many of the achievements of the Biden Administration, drawing a stark contrast between an incredibly consequential President who has worked within the traditions of this country and an autocratic madman.

Every American following the news can probably point to policies of the Biden administration with which they disagree. That’s par for the course in every administration. Liz Cheney probably said it best: we can survive what we consider bad policy, we cannot survive a president who torches the Constitution.

It is incredibly disheartening to realize that millions of our fellow-Americans harbor resentments and hatreds that this repulsive buffoon has exploited–grievances for which he serves as a vehicle. But I refuse to believe that those angry and limited people represent anything close to a majority. If they did, Republicans wouldn’t be so frantic to suppress the vote.

Click through, read Richardson’s entire Letter–and VOTE as if your life depended upon it, because in a very real sense, it does.

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No Good Deed Goes Unpunished

Well, it appears I’ve missed an intriguing element of those abysmal “ad wars” being waged among candidates for the Republican gubernatorial nomination.

Apparently, Eric Doden’s most recent weird ad–in which he highlights his support for qualified immunity (and anything police might ever do) is based upon the only position Braun took during his six years as a Senator with which I actually agree–he sponsored a bill that would narrow the application of that doctrine. In the current primary contest, that’s a vulnerability.

What’s that old saying? No good deed goes unpunished.

I’ve addressed qualified immunity previously. To recap: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

That’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine it dubbed “qualified immunity.” As a judge in one case noted, it might just as well be called “absolute immunity.” Ruth Marcus explained it in a Washngton Post article a few years ago:

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

In 1982, in a case called Harlow v. Fitzgerald, the Court established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, the first person to litigate a specific harm is out of luck, since the “first time around, the right violated won’t be ‘clearly established.’” A post on Lawfare gave an example.

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” The doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

One legal scholar has characterized the doctrine as a “through-the-looking-glass” example of jurisprudence that doesn’t simply excuse police violations of constitutional rights, doesn’t just grant police an exception to the axiom that “ignorance of the law is no excuse,” but that actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

I will admit to surprise–shock, really–that Braun understood the pernicious effects of this judge-made doctrine, and the way it encourages reckless police behavior. It is beyond ironic that his one bit of sensible behavior has become his biggest vulnerability in this primary. 

But no problem! His recent ads–showing slavish support for police and “law and order”– confirm that Braun is always about politics and never about integrity.

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Those Awful Ads

A couple of years ago, my children introduced me to the phrase “first world problems.” First world problems are irritants that annoy people who are privileged to be part of the affluent “first world”–a computer glitch, a bad hair day, a spoiled dinner…The sorts of problems that millions of people around the world would love to have.

One of my “first world” problems is the idiocy–and frequency–of the political ads for Indiana Governor and Congress.

My husband and I mostly escape ads of all sorts by streaming most of our television viewing, but as older folks, we watch “Wheel of Fortune” and “Jeopardy,” which come to us via live television. Given the demographics of the audience for those shows, they are prime venues for candidates hoping to reach elderly reliable voters, and as the primary election has drawn closer, we are inundated by claims and messages that appear to be aimed at uninformed intellectual cretins.

I’ve previously posted about Jefferson Shreve’s ads for Congress. (He barely had time to catch his breath after losing the race for Indianapolis Mayor before launching this campaign. Obviously, he wants to “be someone.”) Shreve’s ads are inane, misleading and arguably racist, but by far the most offensive messages come from a congressional candidate whose name escapes me (It’s Chuck something-or-other) who says the most important issue facing Indiana is “biological men playing women’s sports” and who brags that while serving in Indiana’s legislature, he sponsored “and passed” (all by yourself, Chuck?) a bill addressing that monumental issue. He ends by pooh-poohing opponents who think “international stuff” is more important than protecting real women athletes from those he labels “biological men.”

Then there are the interminable ads for the gubernatorial nomination.

One of the six candidates for governor–Eric Doden– proclaims that he is the only one who has “a plan” to address his selected issues–but he doesn’t bother to say what those “plans” are. He also proclaims that he’s the only candidate running for governor who will explicitly make his “faith” front and center (his ads prominently feature a bible and little white church)–an excellent reason for avoiding him, in my opinion.

All of the governor candidates save one have signed on to Trump’s MAGA party, and one–Mike Braun–boasts that he’s been endorsed by Trump. (The voice-over says “and we know why.” Yes, indeed we do, and a lot of us find that disqualifying.)  At least three of them claim to be “outsiders,” a claim that runs from ludicrous to factually dubious, and raises the question “why would I vote for someone who doesn’t have the background needed to understand the job?”

James Briggs is an opinion columnist for the Indianapolis Star, and recently responded to a question about those campaign ads, and why most of them ignore issues that are specific to the state.

Carl Gottlieb: Most of the campaign for governor commercials I have seen on TV seem to be campaigning against President Biden. I didn’t know he controlled the Indiana Statehouse? Where do these clowns stand on issues relevant to Indiana?

I agree it’s annoying how candidates operate like McDonald’s franchisees, offering templated menus to local communities. But, much like in the restaurant industry, political candidates are responding to market demands

You, me and (probably) most people reading this exist in a bubble where we want to see candidates offer policy-based discussion. But it’s a pretty small bubble!

record 3 million Indiana residents, or 65% of registered voters, cast ballots in the 2020 general election. Turnout for those elections is typically below 60% — and it falls to around 25% for primary elections, which is what you’re talking about here with the GOP gubernatorial race (which is probably going to determine our next governor).

Among the people who show up and vote, most are busy living their lives. They pick up fragments of election-related information and file it away according to preexisting (and nationally oriented) understandings of politics.

Given the fact that a depressingly small number of voters can even name the current governor, Briggs points out that candidates with enough money to blanket the airwaves try to do three things:

No. 1, make people remember their names through Election Day; No. 2, link the candidate to values shared by voters; and No. 3, brand opponents as unacceptably awful and depress people who otherwise might vote for them.

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Who Decides?

The Bill of Rights–as I repeatedly note– addresses areas of citizens’ lives that the Founders marked “off limits” to government authority, answering the question “who decides this?” in favor of individual citizens.

That framing is one way to look at today’s vicious culture war.

Those of us who want to maintain the constitutional line between matters government is authorized to decide and matters remitted to our individual consciences are under attack by the autocrats and theocrats who want to use the power of the state to impose their favored choices on everyone else. Nowhere is that clearer than in the persistent efforts to control what books we can read and what information we can access.

A recent article from Axios focused on that battle.

Attempts to ban books at public libraries have reached record levels, pitting right-wing parents and legislators against those who oppose censorship.

Driving the news: The culture war over books has become a legislative battle as well.

  • Last year, more than 150 bills in 35 states aimed to restrict access to library materials, and to punish library workers who do not comply,” per the New York Times.
  • As a counterpunch, legislators in blue and purple states are coming to the aid of librarians to help them fight efforts to remove books with certain racial, sexual or gender-related themes.
  • Last June, Illinois became the first state to pass a law penalizing libraries that ban books.

What they’re saying: “We have broadened the framing to refer to ‘intellectual freedom challenges'” rather than just book bans, AnnaLee Dragon, executive director of the New York Library Association, tells Axios.

The hypocrisy is obvious. As one librarian reportedly told Axios, “It’s the same people who are out touting the freedom to own a gun. But you don’t think I have the right to pick a book for my kid?”

The American Library Association has mounted a campaign, Unite Against Book Bans, to encourage people to take action locally, and it’s also selling a workbook for librarians about “navigating intellectual freedom challenges together.”

Libraries have long been seen as cradles of democracy; in the words of former U.S. Senator Wendell Ford, “If information is the currency of democracy, then libraries are its banks.”

The current attacks are coming from what the article calls “a small but vocal minority” that opposes libraries precisely because they are democratic– inclusive, affirming, and intentional. That minority sees access to information as a threat.

The current onslaught has come at a time when libraries are serving an expanding variety of community needs. Librarians have gotten used to tackling whatever tasks society demands of them, and those demands continue to broaden. As Time Magazine recently reported, 

Libraries are among the most visited public service institutions, totaling more than 1 billion visits annually with users turning to libraries for critical educational services in addition to books. In recent years, as many as 118 million participants have taken part in nearly 6 million programs focused on early and family literacy, digital literacy instruction, after-school homework support and summer reading programs for youth, adult literacy and basic education, career readiness, small business development, arts and humanities programming, English for Speakers of Other Languages instruction, and special programs for adults navigating memory loss and reentry after incarceration.

The effort to restrict what information other citizens can access has accelerated.

Last year there were 1,269 attempts to censor library books, the highest number of attempted book bans in the two decades that ALA has been compiling data about censorship in libraries. During this same period, 2,571 unique book titles were targeted for censorship, an astonishing 32% increase over 2021, with 40% of book challenges occurring in public libraries, while the remaining nearly 60% occurred in school libraries. As these threats to the right to read continue, in all too many cases, parents are being roped into banning books they haven’t even heard of before, let alone read, by extremist groups using book banning as a political tactic. At a school board meeting in Pennsylvania this year at which book censorship was being recommended, one parent supporting the banning of a title proclaimed, “I have not read the book myself, I don’t intend to read the book, but I have had portions distributed to me of this book.”

If we have come to a time in this country when parents can be successfully swayed into restricting access to books they haven’t read, what does that mean for our future as a nation? What other personal and constitutional rights might next be compromised?

Some constitutional questions are open to interpretation. This one isn’t.

The First Amendment protects our right to decide for ourselves what we and our children read.

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Polls, Political Realities, And The New York Times

During a recent lunch with my sister and a good friend, the topic (unsurprisingly) turned to politics. The three of us are, as the kids used to say, “in sync,” so it was more a session of “who in the world looks at Donald Trump and sees someone presidential?” But at the end, my sister voiced what has become a common complaint-cum-question: what is going on at the  New York Times

We’ve all noticed it; the Times seems intent upon highlighting anything that could be considered negative about the Biden campaign, while essentially ignoring Trump’s increasing dementia. When I say we’ve all noticed it, I have evidence; the day after our lunch, both Robert Hubbell’s newsletter and Josh Marshall in Talking Points Memo addressed the Time’s obvious bias.

Hubbell’s analysis was well worth reading.

He began by addressing the Times-sponsored poll that showed Biden currently trailing Trump. “The Times covered its own poll as front-page news for three days, ignoring three other polls from reputable organizations that showed Biden leading (slightly in one poll) or tied (in two polls).”

If the Times mentioned the three recent polls that contradicted the breathless coverage of its poll, I can’t find that story. What I can find is another front-page story about Joe Biden’s age. (NYTimes: Amid Age Concerns, the White House Tries a New Strategy: Let Joe Be Joe.) At the New York Times, “No news is good news”—because if there is good news about Biden, it’s not news at the Times.

Hubbell then reported on Trump’s most recent word-salad.

The gratuitous dig at Biden’s age was published on Super Tuesday—and after a weekend during which Trump melted into incoherence while he promoted anti-immigrant hate and election denialism, called the country of Argentina “a great guy,” was defeated in his attempt to pronounce “Venezuela,”  confused former President Obama and current President Biden, and asked the crowd to look at the back of his head because “I am like an artist.” (See Newsweek, Donald Trump’s String of Gaffes Over Weekend Raises Eyebrows.)

Calling those statements “gaffes” should be considered a campaign contribution. 

As Hubbell reported, the Times’ bias has become so noticeable, it is prompting coverage by other media outlets. He also shared an observation by another Substack author to the effect that polls are manufactured news events and  shouldn’t be considered “news events” at all–that Journalists “should not be in the business of creating news, especially in ways that they have the power to control.”

Hubbell quotes a commentary from SalonThere is something wrong at the New York Times | Salon.com

Two things…check that…three things appear to have gone off the rails at the paper we used to call the Gray Lady.  First, whoever is in charge of the paper’s polls is not doing their job.  Second, whoever is choosing what to emphasize in the Times coverage of the campaign for the presidency is showing bias.  Third, the Times is obsessed with Joe Biden’s age at the same time they’re leaving evidence of Donald Trump’s mental and verbal stumbles completely out of the news.

Hubbell noted that he’d watched Trump’s Super Tuesday victory speech, and that (in addition to appearing sedated) he was rambling, confused, and detached from reality.

Trump repeated an internet rumor that Biden “flew in 325,000 immigrants” into our country (a grotesque misrepresentation of how the CPB processes asylum applicants fleeing their home country). He descended into incomprehensible comments about Venezuelan oil being “tar” that is refined in the US and “goes up into the air” (complete with whirly-gig hand gestures). He repeated a dozen easily disprovable lies. Even though Melania was noticeably absent, he thanked his ”family” for being present.

Finally, Hubbell turned his attention to the polling, and shared numbers showing that Trump has continued to significantly under-perform FiveThirtyEight.com’s averages. In Virginia, he underperformed by 20 points, in Tennessee, by 10, Massachusetts by 14.

Many states did not have enough polls to qualify for a FiveThirtyEight average, but in Vermont, the most recent poll had Trump winning by 30%. In fact, Haley won by 4%, an underperformance by Trump of -34.

Trump over-performed in one state—North Carolina—by +5.

Like my sister, and many of you, I have been frustrated–and worried–by the mainstream media’s coverage of the polling and the candidates.

In the wake of Super Tuesday, Americans are facing an almost-certain choice between two candidates, both of whom are older than the candidates we’re used to. One of those candidates is a good, decent man who has drawn on his experience and wisdom to power a transformational–and very much under-rated–Presidency. The other is a morally-repulsive, intellectually-vacant ignoramus rapidly descending into dementia.

That’s the choice. The New York Times isn’t covering it. 

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