Category Archives: Random Blogging

It Isn’t Just The Bar Exam…

The New Republic recently printed an essay devoted to one of the many, many less tragic but nonetheless unfortunate consequences of the decisions issued this term by our rogue Supreme Court–the fact that the Court has upended the lives of students studying for the bar exam.

I know whereof the author speaks. A couple of weeks before the essay appeared, I had lunch with a good friend and his daughter, who had just graduated from the University of Michigan law school and was studying for the bar exam. She had been an excellent student, but was now stymied about how to answer questions about what she’d been taught were basic principles of American jurisprudence. What should she do in the wake of the Court’s string of radical departures from what she’d been taught was settled law?

Snark that I am, I suggested starting every answer with “Until this year, the law was…” But of course, that assumes the exam consists largely of essay questions.

As the author of the article in the New Republic put it

Picture the scene: It’s the summer after I graduated from law school and a day that ends in y, which means I’m currently hunched over a workbook, attempting to answer practice questions for the multistate bar exam. Such cramming for the bar is a universal rite of passage in the legal field—one that every lawyer in America remembers going through. But right now, law school graduates across the country are experiencing the ordeal a little differently. Because this year, a lot of the laws we are trying so hard to memorize are, as of just a few weeks ago, no longer actually the law.

The author shared a multiple-choice question that has undoubtedly been on several such exams, and then described the dilemma: of the three choices, “B” was correct. At least it should be correct. Except now, not so fast…

Or, well, “B” used to be the right answer. It was the right answer when we graduated from law school at the end of May. It was the right answer through most of June, as we studied the elements of substantive due process—the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference, like the rights to personal autonomy, bodily integrity, self-dignity, and self-determination. For decades, these interests formed the outline of a constitutionally protected right to privacy, whose framework we’ve spent the summer copying onto flashcards and trying to recount in practice essays.

But this substantive due process right to privacy was just dealt a body blow by the Supreme Court’s ruling in Dobbs v. Jackson that the U.S. Constitution does not confer a right to abortion.

After enumerating several of this session’s other dramatic “U turns” to constitutional jurisprudence, he writes:

And the hits keep on coming: Next there’s a question on the “case or controversy” requirement laid out under Article III of the Constitution, stipulating that federal courts only have the power to resolve legal questions arising out of an actual dispute between real parties. That’s been a basic principle of judicial review since 1793, and yet I know that the multiple-choice option I mark for correctly stating this rule completely contradicts the Supreme Court’s disastrous climate decision in West Virginia v. EPA—a case over an environmental regulation that never took effect, no longer exists, and never created any real dispute between actual parties. Then I drop my pencil and put my head in my hands….

In order to practice law, every newly licensed attorney in the year 2022 has to take an exam testing their grasp of legal principles that are no longer legal and laws that are no longer the law. That an unelected panel of ideological extremists could change so many critically important pieces of America’s legal architecture overnight—radically remaking our laws on abortion, separation of church and state, climate change, the rights of criminal defendants, Native American sovereignty, gun control, the capacity of the administrative state to keep us safe, and more—all with zero input from or accountability to the American people, demonstrates how completely unmoored this court is from the principles of democratic governance.

It isn’t only students cramming for the Bar Exam who find themselves suddenly adrift. Pretty much every lawyer I know is gobsmacked..

Me too. I recently collaborated with Women4Change Indiana on a series of civic education videos meant to explain the operation of the U.S. Bill of Rights. The Court’s ahistorical and deeply dishonest departures from what I knew as settled legal principles has made several of those videos inaccurate.

I encourage you to click through and read this very poignant essay--and the author’s very pointed criticisms of the judicial extremists who are decimating the rule of law.

Comments

Where’s George Soros When We Need Him?

Despite all the accusations prompted by MAGA fever dreamers (George Soros paid for those Jewish space lasers over California!), normal Americans don’t have anything remotely commensurate with the funding sources and highly sophisticated organizational infrastructure of the far Right. That worries me.

A recent report from the Tampa Bay Times began by following just one of the many astroturf groups masquerading as spontaneous grassroots organizations.

This one was “Moms for Liberty.” Much like similarly misnamed organizations (“Patriots for Truth, Justice & the American Way,” or “Grandmas for Cuddly Kittens”), “Moms for Liberty” emerged pretty much full grown during the most recent assault on public education. The author applied a four-part test to determine whether any particular educational group was legitimate or contrived.

The first part of the test is financial: has the organization grown at a pace that only an undisclosed donor’s monetary resources could manage?

Moms for Liberty incorporated as an Internal Revenue Code 501(c)(4) organization, a form that lends itself to dark money political shenanigans. It exploded on the scene with its leaders being guests on Fox News and breaking into the Washington Post. It has a well-developed website and extensive social media reach. Moms for Liberty has formed three federal and one state political action committees, one of which is a SuperPAC able to accept unlimited donations. Its careers page is seeking state coordinators to work with the chapter chair coordinator, and a communications officer.

This “grassroots” group of “just-your-average-mom” members also managed to hold a fund raiser with Megyn Kelly (top ticket $20,000), and to co-host The American Dream Conference featuring former Trump Cabinet secretary Ben Carson. An upcoming national summit (presenting sponsorships for $50,000 are sold out), will feature Ron DeSantis, Carson, Sen. Rick Scott and Betsy DeVos.

Just your average PTA members….

So who is really funding these Rightwing mamas? Here’s a clue: they aren’t getting by on T-shirt sales.

They’ve barely even heard of the Koch brothers! Yet perhaps they’ve heard of the Council for National Policy. Two of Moms for Liberty’s National Summit sponsors, the Leadership Institute and Heritage Foundation are critical members of the Council for National Policy, a secretive network of right wing billionaires and Christian fundamentalist leaders that underwrites and coordinates right wing politics.

When the author looked to see who is really running the operation, he found that one of the two purported “founders” –Tina Descovich –is a communications and marketing professional. The other–Tiffany Justice (surely not her real name)– is a former Florida school committee member. He also discovered a third, “silent” founder, one Bridget Ziegler, whose husband just happens to be vice chairman of the Florida Republican Party and the owner of a political marketing firm. He has boasted that Moms for Liberty will provide crucial ground support for DeSantis’ re-election.

Another part of the test revolves around whether the genuinely grassroots folks suckered into joining the organization have any clue what the organization is  really all about. Moms for Liberty may have “activated and harnessed” actual anger and grievance, but–as the article notes–that doesn’t mean those people understand that they are being manipulation for partisan political purposes.

Perhaps the most telling aspect of the author’s “deep dive” into the bona fides of Moms for Liberty is the identification of the nefarious network of which it is a part:

Then there’s the odd coincidence of so many grassroots parents organizations arising at the same time with similar missions. Parents Defending Education is Koch-connected. The Koch-funded American Legislative Exchange Council claims credit for the havoc wreaked by anti-Critical Race Theory legislation. The Council for National Policy’s Leadership Institute commenced its own program to take over school boards. The Council for National Policy-connected Turning Point USA initiated a School Board Watch List for reporting “woke” school boards.

Reading all this, I vacillated between disgust and grudging admiration. These interlocking astroturf organizations are dishonest and manipulative–but they’re effective. You’ve got to give the Christian Nationalists credit for their success in controlling the narrative, and making it far more probable that America will continue to be dominated by a minority of truly despicable theocrats.

Meanwhile, the people I consider to be “the good guys” are happily forming circular firing squads and scrounging for five-dollar donations on Facebook. If Soros is funding any of them, I’ve missed it.

Have I mentioned that I’ve been hitting the booze more frequently since 2016?

Comments

“Southern Culture” Is A Euphemism..

Sometimes, the subhead on a headline, or a quotation in an article, strikes a definite chord with me. That happened when I was reading about the recent destruction of some mysterious  granite markers, the Georgia Guidestones (sometimes referred to as America’s Stonehenge). As several recent articles reported, those stones are “no longer casting a shadow in rural Elbert County, Georgia.” Early on July 5th, one of the six slabs of granite comprising the display was destroyed by what the Georgia Bureau of Investigation reports was an intentional explosive.

The quotation that caught my eye was that of a local pastor and historian, who said that the stones would probably have survived a nuclear war, “but they could not survive Southern culture.” 

“Southern culture” in this context is a euphemism for deeply-rooted superstition abetted by a generous dollop of ignorance.

The linked article gives the background: In 1979, the president of a local granite company was asked to create the monument by someone identifying himself as Robert Christian (later R.C. Christian–probably a pseudonym), who claimed to represent a group of concerned Americans. Christian obtained funding for the massive project, and the granite company proceeded to create it.

The stone structure was revealed to the public on the spring equinox in 1980. Together the 951 cubic feet of granite weighed 237,746 pounds. The center slab was surrounded by four standing stones of similar height, and the entire structure was capped by a sixth stone 6 ½ feet wide, 10 feet long and 7 inches thick.

The impressive size of the structure was only part of its allure. Carved on each of the four outer slabs were 10 precepts — a message to humanity — repeated in English, Spanish, Swahili, Hindi, Mandarin Chinese, Hebrew, Russian and Arabic. Translators from the United Nations assisted Christian with the translations.

Inscribed in the capstone was the phrase “Let these be guidestones to an Age of Reason,” written in ancient Greek, Egyptian hieroglyphs, Sanskrit and Babylonian cuneiform.

The center slab and capstone also acted as an astrological calendar, with carefully cut holes for observance of the moon, sun and North Star. Astronomers from the University of Georgia assisted in refining this part of the project.

While Christian’s identity is still a mystery, his purpose is not.

An “Age of Reason.” If only…

At the time, there was widespread fear of a global nuclear war, and the stones were intended to be a beacon of sorts for those who would survive–a prescription for a more peaceful world.

Criticism of this project could certainly be mounted on many grounds: a vanity project, a waste of money, an ineffective indulgence…But of course, none of those reasonable quibbles prompted the fierce opposition to–and fear of– this monument. 

Idiocy did.

Nearly immediately, local pastors decried the stones as satanic. “We don’t think Mr. Christian is a Christian,” said the Rev. James Traffensted of the Elberton Church of God after the 1980 ceremony. “Look what it says about the unity of the world. That’s where the Antichrist will unite the governments of the world.”

I didn’t realize that world unity and peace was a sign of the Antichrist, but given the behavior of so many so-called “Christians,” perhaps I should have.

Since there is no conspiracy theory or bizarre “religious” belief that today’s Republicans won’t embrace, I probably shouldn’t have been surprised by the following passages from the report.

Former Republican gubernatorial candidate Kandiss Taylor made demolishing the stones part of her 2022 campaign. On May 2, she tweeted: “Elect me Governor of Georgia, and I will bring the Satanic Regime to its knees— and DEMOLISH the Georgia Guidestones.”

After the stones were destroyed Wednesday, she tweeted, “God is God all by Himself. He can do ANYTHING He wants to do. That includes striking down Satanic Guidestones.”…

The bombing was not the first time the monument was targeted. In 2008, a masked man calling himself an “American patriot” defaced the monument as a warning to the “global elite.” He tied the Guidestones to a coming new world order, a conspiracy theory perpetuated by QAnon followers and expressed by personalities such as InfoWars founder Alex Jones.

Conversations on this blog often include efforts to describe Americans’ current divides: Red versus Blue, urban versus rural, educated versus uneducated…The steady growth of incidents like this one suggest a more accurate division might be: reasonably sane versus bat-shit-crazy.

If humanity actually survives this period–increasingly characterized by the rejection of logic, science and empirical evidence– historians will probably describe these times as “the age of insanity.”

Comments

Texas Redux

I know that Texas isn’t the only state where lawmakers are intent on returning to the 1800s (preferably prior to the Civil War and Emancipation…). Florida’s GOP is right up there with them, and Indiana isn’t all that far behind. Still, I have a strange “soft spot” for Texan idiocy–even before the last few years, when moronic policy proposals became a dime a dozen,  I could always count on Texas for an excellent example to use in my Law and Policy classes…

You may have read that–when Texas Republicans held their convention some weeks back–they adopted a stunningly retrograde platform. The item that got the most media attention was a call to hold a statewide vote on whether to secede. (As Dana Milbank memorably noted in the Washington Post,“If at first you don’t secede, try, try again.”)

Milbank’s reaction mirrored my own: let’s offer Texas a severance package, and throw in Oklahoma for good measure. The U.S. would come out ahead.

Of course, protections would have to be negotiated for parts of Texas that wish to remain on Team Normal. Dallas, Houston, Austin, San Antonio and parts of South Texas would remain in the United States, and they will need guaranteed safe passage to New Orleans or Santa Fe, along with regular airlifts of sustainable produce, accurate textbooks and contraceptives.

But consider the benefits to the rest of the country: Two fewer Republican senators, two dozen fewer Republican members of the House, annual savings of $83 billion in defense funds that Texas gets. And the best reason? The Texas GOP has so little regard for the Constitution that it is calling for a “Convention of the States” to effectively rewrite it — and so little regard for the United States that it wishes to leave.
 
In democracy’s place, the Republican Party, which enjoys one-party rule in Texas, is effectively proposing a church state. If you liked Crusader states and Muslim caliphates, you’ll love the Confederate Theocracy of Texas.

Milbank illustrated his “Crusader” conclusion with references to the rest of that stunningly theocratic platform:

Texas would officially declare that “homosexuality is an abnormal lifestyle choice.” It would redefine marriage as a “covenant only between one biological man and one biological woman,” and it would “nullify” any court rulings to the contrary. (The gay Log Cabin Republicans were banned from setting up a booth at the convention.) It would fill schools with “prayer, the Bible, and the Ten Commandments” but ban “the teaching of sex education.” It would abolish all abortions and require students to “learn about the Humanity of the Preborn Child.”

There was–as you might imagine–much more. The state would abolish the Voting Rights Act, do away with the Income Tax and Estate Tax, and deep-six property taxes. Texas would withdraw from the United Nations.

I’m not sure where the state would get funds to do even the very few things the platform considered governmental responsibilities, since the areas that generate most of those despised taxes are the urban centers that wouldn’t secede.

There’s more, but it gets depressing to delve more deeply into contemporary GOP fever dreams.

If you wonder where these crackpot ideas get their staying power, Thomas Edsall recently published a column on the roots of the stubborn conspiracy theories widely accepted by today’s Republicans. ( He too referred to the Texas GOP platform, which he notes was hardly a minority effort–it was adopted by  5,000 delegates to the convention.)

“We reject the certified results of the 2020 presidential election, and we hold that acting President Joseph Robinette Biden Jr. was not legitimately elected by the people of the United States.”

Unfortunately, that particular evidence of mental impairment is not limited to Texas Republicans. Polling suggests that the stolen election conspiracy theory is currently embraced by 71 percent of Republicans — roughly 52 million voters. Edsall writes that the belief in a stolen election has ” become the adhesive holding the dominant Trump wing of the party in lock-step.” 

The Texas GOP platform is a good gauge of the other preoccupations/fantasies of those 52 million voters. As Milbank reports, It invoked “God” or the “Creator” 18 times and “sovereignty” or sovereign power 24 times. And the word “democracy”? Only once — in reference to China.”

This all raises what we old folks used to call the Sixty-Four Thousand Dollar Question.”

As the January 6th Committee methodically releases evidence–actual, verifiable evidence–how many of the fact-resistant voters who are clinging to preposterous explanations for their perceived loss of social dominance will grudgingly recognize that they live in 2022, not 1822?

Comments

How To Suppress The Vote

I recently moderated an online discussion about vote suppression; it followed the showing of “Suppressed and Sabotaged: The Fight to Vote,” a documentary that was eye-opening. It turns out there are lots of ways to suppress votes that most of us don’t think about. The documentary illustrated a number of ways in which vote suppression has become more sophisticated—and less visible—since Reconstruction.

There are two main methods of discouraging the vote. The first is primarily aimed at minorities and poor people, who tend to vote Democratic, and focuses on making it as inconvenient as possible for the targeted people to cast ballots. The second is gerrymandering, which—among other pernicious things—suppresses the votes cast for whichever party is in the minority in a particular district, by convincing people in that party that their votes won’t count, so why bother.

And recently, just in case those methods don’t work, Trump partisans have come up with another tactic, triggered by belief in the “Big Lie.”

The film focused primarily on the first method, just making it more difficult to vote. Some of those tactics included shortening the window for requesting absentee ballots, making it harder to remain on the voter rolls, not sending mail ballots unless people specifically requested them, limiting drop boxes and early voting, closing polling places in minority neighborhoods…and ensuring that the ones that do remain open will have interminable wait times by sending them an insufficient supply of voting machines. (The film showed the enormous disparity in the number of voting machines available at polling places in minority neighborhoods versus white suburban ones.)

There are also a wide number of bureaucratic moves and “inadvertent errors” that can make it more onerous to cast a ballot if you are in a targeted community.

The second method of vote suppression is gerrymandering, which is more destructive of democratic representation than even most of its critics seem to recognize.

Gerrymandering, as you undoubtedly know, is the process of creating as many districts as possible favoring the party that controls the state legislature during redistricting. In some states, that’s the Democrats; in Indiana, it’s Republicans, and they’ve done a very good job of it; Indiana has been identified as one of the five most gerrymandered states. Indiana doesn’t have “one person one vote” because our districts have been drawn so that the rural areas where  most Republican voters live are vastly overrepresented.

As a result, in a depressingly large number of statehouse districts, the incumbent or his chosen successor is unopposed even by a token candidate. If you don’t have a candidate to vote for, why go to the polls? Indiana isn’t unique; In 2021, the Cook Report calculated that only one out of twenty Americans lived in a competitive Congressional District.

If all that wasn’t enough, in several states, Republicans pushing the Big Lie have embarked on yet another method of ensuring the victory of their candidates—placing partisans in the offices responsible for counting the votes. The GOP argues that vote fraud is widespread, despite reliable data showing that it is in fact extremely rare– and that the few scattered incidents that do exist don’t change results. (We also know that, despite hysterical accusations, non-citizens aren’t descending on polling places and casting votes for “the other side.”)

The real danger isn’t coming from people casting improper votes. The threat is that the people controlling the voting rolls and counting those votes will be dishonest, which is why a recent report from the Brennan Center is so concerning. This year, races for Secretary of State—the offices charged with administering the vote– are attract­ing far more atten­tion than in recent memory. And in state after state, including Indiana, those campaigns are focusing on elec­tion denial—Trump’s “Big Lie” as a cent­ral issue.

Money is flow­ing into these races at a rate not seen in recent memory–more than two and a half times the amount raised by the analog­ous point in 2018, and more than five times that of 2014. Brennan reports that elec­tion deniers in Arizona, Geor­gia, and Nevada are currently either in the lead or running a close second in fundrais­ing. National groups and donors are spend­ing on these races, includ­ing Donald Trump’s lead­er­ship PAC and others with ties to efforts to chal­lenge the 2020 result. Donors who haven’t previously given to secret­ary of state candid­ates are suddenly making major contri­bu­tions.

All of this activity is inconsistent with the notion that “We the People” elect our representatives. Instead, partisans—who are mostly but not exclusively Republicans these days— decide which people deserve to have their registrations honored and their votes accurately counted.

Something to think about in the run-up to the midterms…..

Comments