Tag Archives: Talking Points Memo

Josh Marshall Hits A Home Run

Talking Points Memo just celebrated 25 years of online political reporting. It’s a “go-to” source for many, if not most, political observers. Heather Cox Richardson, among others, frequently cites publisher Josh Marshall, and TPM is one of my trusted sources for insightful political analysis.

In a recent column, Marshall proposed a basis for evaluating Senators, and I strongly agreed with his criteria for “purging” those who don’t pass his tests. He identifies a series of issues that he says can give voters “a clear indication of whether they are serious about confronting the challenge of the moment or battling back from Trumpism.” He analogizes the process to a status interview you might hold if you were a new manager hired to turn around a failing company–a “sit down” with every employee to determine whether they’re part of the solution or part of the problem.

Marshall identifies five issues. The first is the filibuster. He writes that lawmakers who support keeping the filibuster “are not serious about moving the country forward in any positive direction.” Support for the filibuster means that Senator should be primaried and removed from office, because absolutely none of the legislation that is required to repair America’s government can happen with the filibuster in place. As he writes, “If you support the filibuster that means that your response to Trumpite autocracy is to do nothing and hope for the best. That’s unacceptable and you need to go.”

The second identified issue is Supreme Court reform. Marshall notes that it is only within the past two or three years that he has reluctantly come to that conclusion, which has been forced by the corruption of the Court majority.

They have cut free not only from precedent but from any consistent or coherent theory of the Constitution, no matter how wrongheaded. The purpose of the high court is not to run the country. It is to render decisions on points of constitutional and legal ambiguity in a good faith and broadly consistent manner. It is now engaged in purely outcome-driven reasoning, mixing and matching doctrines and modes of jurisprudence depending on the desired ends, with the aim of furthering autocratic and Republican rule. That is the heart of the corruption. Passing laws doesn’t matter if they can and will be discarded simply because six lifetime appointees don’t like them. That’s a perversion of the constitutional order. I know this one is hard to swallow for many people. It doesn’t come easily to me either. But the facts of the situation and fidelity to the Constitution require it.

Like Marshall, this conclusion was difficult for me, but the sheer intellectual dishonesty of the majority has convinced me that we will not return to the rule of law without substantial Court reform.

Those first two criterions are Marshall’s “most important,” because without them, the next three won’t happen.

Number three is (finally!) making DC and Puerto Rico into states. He acknowledges that this isn’t as essential as the first two, but it’s very important, and it’s the right thing to do. DC and Puerto Rico should in fact be states. It really is bizarre–and unfair–that citizens living in two U.S. jurisdictions simply don’t have the political rights that every other American enjoys.

We now know that Marshall’s number four is especially important. He calls it “clearing the law books.”

As we’ve seen over the last year, the U.S. federal code is full of laws which assume the sitting president broadly supports the federal Constitution, civic democracy and the best interests of all American citizens. We know now that that is a dangerous assumption. There are lots of laws which grant the president vast powers if things get super weird. And the president is in charge of deciding whether they’re weird. A lot of this is the dirty work of the corrupt Republican majority on the Supreme Court. But a lot of the laws are genuinely far too ambiguous. We need to change all of those laws. That involves potentially creating different harms by weakening the presidency. There are cases when you want a president to be able to move expeditiously and effectively in emergencies. Laws will have to be revised with that contrary danger in mind. But right now the balance is far too much in the direction of presidential power.

And number five? Here, Marshall proposes something near and dear to my heart: outlawing gerrymandering with a federal legal framework governing how maps can be legitimately drawn.

As Marshall acknowledges, it’s not an exhaustive list. But it would be a strong beginning.

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Rigging The Vote, Thanks To A Rogue Court

A number of pundits have pointed out that Donald Trump is a prime example of projection; that when he accuses someone of bad behavior, it is almost always behavior in which he, himself, has engaged. His current effort to get Red states to redistrict mid-cycle is a perfect example. Ever since he lost the 2020 election to Joe Biden, Trump has insisted that he couldn’t possibly have lost “fair and square,” that the election had been rigged. So, in typical Trump fashion, he is engaging in an effort to rig the upcoming midterms.

As Josh Marshall at Talking Points Memo has recently written,

Texas Republicans are in the midst of making their state even more of a mockery of the concept of representative democracy than it already was. In an attempt to preserve the GOP’s narrow House majority in the 2026 midterms, lawmakers are tinkering with the boundaries of the state’s 38 congressional districts to create five more safe Republican seats, forcing several Democratic incumbents to seek re-election next year in districts that are suddenly, alarmingly red. Scrambling the map in this manner would ensure that in a state in which Trump earned 56 percent of the vote in 2024, Republicans would lock up 80 percent of the state’s representation in Congress for the rest of the decade.

The effort to give Republican candidates unearned advantages isn’t limited to Texas–Trump is currently leaning on other Red states, notably Florida and Indiana–to engage in the same gerrymandering, which he clearly believes will forestall a Democratic takeover of the House of Representatives. (He really shouldn’t be so confident; in a special election just last Tuesday, a Democrat won a seat in the Iowa legislature with 55% of the vote–in a district that Trump had carried by 11 points. But recognition of nuance and complexity aren’t among Trump’s very limited intellectual skills.)

As Marshall quite correctly notes, “you can draw a straight line between this frantic gerrymandering arms race and a mind-bendingly stupid decision from the U.S. Supreme Court.” That “mind-bendingly stupid decision” was a 5-4 ruling in Rucho v. Common Cause, a 2019 case in which the five Republican justices held that partisan gerrymanders are a “political question”—that is, an issue that must be left to the democratic process. “Writing for the majority, Chief Justice John Roberts explained that the Constitution yields no workable standard for determining when a given gerrymander goes too far to be legal.”

In what is, in my view, still one of the most embarrassing paragraphs to appear in the pages of the United States Reporter, Roberts wraps in Rucho by noting that the holding constrains only federal courts; Congress, he says, would remain free to enact anti-gerrymandering legislation, as would lawmakers at the state level. The argument here is that voters who are dissatisfied with corruption in the political process don’t actually need John Roberts’s help, because they can always seek redress of their grievances via the aforementioned corrupt political process. This is roughly analogous to the fire department pulling up to a burning house, attaching the hoses to fire hydrants, and then politely informing the owner that it could rain any minute.

As Marshall points out, and as I have previously written, there definitely are standards the Court might have applied. The decision was clearly partisan. Republicans control 59 of the 99 state-level legislative chambers, and both the legislature and the governorship in 24 of those states. That compares with just 15 for Democrats. Despite the fact that most Blue states have significantly larger populations than the more numerous Red states, Republicans have power over the line-drawing process in more places than the Democrats–a power that allows the GOP to win elections despite garnering fewer votes overall.

It’s hard to argue with Marshall’s conclusion that what is happening in Texas and California and elsewhere right now “demonstrates just how vapid and hollow the reasoning in Rucho always was. You do not have to have a law degree to understand that a Texas map that transforms a 56-42 advantage into a 79-21 blowout is not, in any meaningful sense, fair.”

But it isn’t just Rucho. The Roberts Court will go down in history (assuming we have a history) as a disgraceful, rogue Court in which a blatantly partisan majority enabled an autocrat and undermined the democratic process in multiple decisions contrary to years of judicial precedents.

If and when the Democrats control Congress, they need to impose term limits on the justices, and expand the Court.

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Follow The Money–Hulk Hogan Version

Regular readers of this blog know that I focus a lot on what I call the “information environment,” and its immense effect on our politics and government. I particularly worry about the increasingly fragmented nature of that environment, and the ability the Internet offers to occupy a “reality” of our individual choosing.

It isn’t only the proliferation of what we might call “alternative fact” sources, and the ease of accessing them. The so-called “legacy media” hasn’t exactly covered itself with glory. Respectable outlets like the Washington Post and the New York Times have–for one reason or another (Jeff Bezos or ??) normalized the distinctly abnormal demented and deteriorating President. The recent rise of alternative sources like Substack has included some excellent truth-tellers, but most Americans lack the time, interest or background information needed to seek them out.

To call the present overall media environment unsatisfactory–to point out that the absence of truth-telling journalism endangers democratic decision-making–does not seem an overstatement.

Given the reality of all this, I was intrigued by a recent essay by Josh Marshall in Talking Points Memo (which is one of the reliable and perceptive alternative sources available.) That essay attributed much of the currently unsatisfactory nature of our media to Hulk Hogan’s lawsuit against Gawker, which the essay called “a seminal event prefiguring and laying the groundwork for much of what has happened in the last decade.”

The facts are simple. Hogan was a tabloid celebrity. Gawker published a tape of him having sex with a woman who wasn’t his wife. Hogan sued Gawker for invasion of privacy. At the time, as Marshall wrote, “It was hard to take seriously that this was a righteous fight for the First Amendment…. publishing someone’s sex tape struck me as reckless, difficult to justify in journalistic terms and frankly hard to defend.”

Hogan got a $140 million judgement…. Without $140 million, Gawker couldn’t appeal. The company and its owner, Denton, were forced into bankruptcy. And that was the end of Gawker and its stable of sites. Some of those — Jezebel, Gizmodo, Deadspin, even the Gawker site proper (Gawker Inc. was the company that owned all these sites) have had post-bankruptcy zombie existences. But basically that was it.

That lawsuit was a critical event of our time, and Gawker’s destruction was a body blow to the First Amendment. Hogan’s lawyer, Charles Harder, wasn’t just any libel lawyer. He had whole new ways of going about it. After Harder’s victory for Hogan, his new approaches to attacking media companies were quickly folded into the Trump political movement, not just the strategies but Harder’s firm itself. You see them again and again in numerous Trump and MAGA world lawsuits.

It turned out that Hogan himself was the cat’s paw of Peter Thiel who funded the entire litigation. Hogan himself must have been a wealthy man but the bills of a major libel suit is a very iffy investment. Denton had suspected that someone was footing the bill behind the scenes — perhaps even Thiel. Money seemed like no object in how the lawsuit proceeded. Thiel took all those worries and risks away. Thiel held a grudge over Gawker’s past negative coverage of him and had been plotting its destruction behind the scenes. Thiel’s use of Hogan presaged the current world of billionaire lawsuits in which limitless money can overcome the weakness of meritless litigation. (See the recent Times story on how Elon Musk and MAGA attorneys general have brought Media Matters to its knees.) The rich have always put their wealth on the scales of justice. But Thiel’s actions opened new terrain, as did the explosion of billionaire wealth taking shape at the same time…

Gawker wasn’t damaged. It was destroyed. It ceased to exist. For what was essentially pocket change, Thiel got his revenge. In that one suit, you can see the evil vapors of Trumpism and its oligarchic billionaire milieu congealing into solid matter for everything that was to come. In so doing, Harder and Thiel radically raised the stakes for all journalism in the United States. The combination of billionaire money, novel legal theories, venue shopping and quirks of civil litigation at the state level (the fact that Gawker was prevented from appealing a judgement that never would have survived appeal) changed everything that goes through a publisher’s mind when they click the publish button.

It’s the new Golden Rule: he who has the gold, rules…and sets the narrative…

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Poison Gas

I have repeatedly cited the observation by a noted civil libertarian to the effect that poison gas is a great weapon–until the wind shifts.

In case the clear meaning of that observation eludes anyone, it is a recognition that ignoring the rule of law in order to punish people you dislike is a very dangerous tactic, because when those disliked folks gain power–as they inevitably will– they can turn those same illegal tactics against you.

It is abundantly clear that Trump and his MAGA minions don’t understand the operation of due process guarantees. (Granted, Trump is embarrassingly ignorant of all civil liberties, and indeed, ignorant of how the world works.) That ignorance is shown by the increasing hysteria with which the administration keeps asserting that Abrego Garcia is “a bad dude,” and that bad dudes aren’t entitled to due process.

There is substantial evidence to rebut the administration’s accusations about Garcia, but their probity is totally irrelevant. Giving an accused individual due process requires that the government prove its allegations in a court of law. If Garcia is really a gang member or otherwise unfit to live among us, the state should be able to demonstrate that fact. A grant of due process doesn’t keep authorities from expelling bad guys–but it does require government to provide the evidence upon which they are painting an individual as someone who should be expelled from our shores.

If a mere accusation is poison gas sufficient to justify deportation, none of us is safe. The accusatory finger can be pointed at anyone, for any reason. That’s why Talking Points Memo–among many others–has  editorialized about the extreme importance of this case.

As best we can tell, Abrego Garcia was on the third deportation flight from Texas to El Salvador on March 15. The other two flights contained people deported under the Alien Enemies Act without any judicial review. The AEA deportations were the first to be challenged in court, which led to the big blow up in U.S. District Judge James Boasberg’s court about whether the Trump administration had willfully violated his order blocking them.

It was in the midst of that legal battle that the case of Abrego Garcia’s mistaken deportation emerged, an error the Trump administration admitted, serving as the perfect signifier for why due process is so essential. If Abrego Garcia could be deported in error – and in violation of an existing order by an immigration judge – isn’t that precisely why the law offers procedural protections that all of the deportees that day were entitled to at some level?

TPM noted that the administration’s positions inside the courtroom have been at odds with its public statements. It  has gone from admitting the deportation was in error to the launch of “a full-scale propaganda campaign from the White House on down, sowing misinformation, inventing facts, smearing Abrego Garcia with falsehoods, and furiously trying to muddy the waters to obscure its own malfeasance.”

The editorial quoted Timothy Snyder, a noted scholar of tyranny:

The president defied a Supreme Court ruling to return a man who was mistakenly sent to a gulag in another country, celebrated the suffering of this innocent person, and spoke of sending Americans to foreign concentration camps.

This is the beginning of an American policy of state terror, and it has to be identified as such to be stopped.

Americans who have been following the news are aware that Garcia is only the most prominent example of extra-legal apprehensions and deportations, which have been accelerating under this lawless regime. This reality–among other Trump acts in defiance of the rule of law–has brought us to the current constitutional crisis, as the administration stonewalls and evades, and refuses to submit to court orders.

The Republicans in the House and Senate could end this crisis. Even if they failed to impeach the mad king, they could assert their powers under the Constitution and take back the authority that Trump has usurped–authority that is rightfully theirs. Their failure to do so–the cowardice preventing them from even publicly protesting Trump’s blatantly illegal, unconstitutional and immoral behaviors–is a betrayal of immense proportions. Assuming we emerge from the current abyss, these Republicans will go down in history as weaklings and traitors whose failure to honor their oaths is a repudiation of the values upon which this country was founded.

It will also be seen as an invitation to turn the poison gas in their direction when Democrats gain control. Of course, if that happens, we really will have lost the Founders’ America.

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TPM Says It All

I often refer to Talking Points Memo, one of the most credible and professional online sources of information. But the other day, the site’s Morning Memo blew me away–it was as if David Kurtz, the author, was describing my own fears and moods as we count down to November 5th.

The country is poised at a great fork in the road, with a historically significant decision to be made between democracy or authoritarianism, pluralism or cultism, the rule of law or Trumpian retribution. Yet the national political conversation, the news coverage of it, the pace of daily events doesn’t seem to be rising to the momentousness of the occasion.

It was different in the tumultuous summer of two attempted assassinations against Trump, Biden’s surprise withdrawal from the race, the Supreme Court’s immunity decision, and the political conventions. That period felt as historic as the decision voters would make in November. But since then, things have settled into a odd limbo, like we’re all waiting out the clock until Election Day, resigned that a sufficient number of our fellow citizens may in fact decide to ditch the American experiment as we know it, imperfect though it’s been, in favor of some kind of gaudy neofascist kleptocracy.

Kurtz writes that everything seems “frozen in place until a decision is made on whether democracy is the way to go.” Frozen in place is precisely the way I’ve been feeling–as though I am in suspended animation until I know whether the world I will leave to my grandchildren will be habitable and governable–whether I will leave them an admittedly imperfet society that is nevertheless working toward greater fairness, or one hurtling into another Dark Ages.

Because that concern isn’t hyperbole. That is the choice we face. As Kurtz put it,

Compiling Morning Memo each day has been harder in recent weeks than ever before, not because there is no news but because there’s little that seems to capture the present moment in full, which has forced me to think hard about why, instead of building to a crescendo in November, we seem to be slouching toward a potential second coming of Trump.

He conveyed his “unpleasant sensation that we’re walking eyes wide open into the abyss.”

It is a mark of the poor health of our democracy that democracy itself is on the ballot at all. A choice between democracy or not democracy isn’t a choice but an existential threat that doesn’t sustain or nourish civic life. The social compact has already been broken when we can’t agree that free and fair elections are a universal goal or that we abide by the results of those elections or that the rule of law should apply equally to everyone. We can’t even agree on whether an auto-coup by a sitting president is a good or a bad thing – or a thing at all.

As the essay repeatedly reminds us, Trump and Trumpism pose an existential threat to American democratic institutions–but the reality and immediacy of that threat tends to obscure what we have already lost–what the last 8 years have cost us, the “vibrant and essential public debates left to molder while we confront the more immediate threat; time, energy, and resources diverted from supporting the best of who we are to fend off the worst of who we can be.”

The current moment is so strange and attenuated in part because the robust public debate we’re accustomed to is shorn of any real meaning when one party to that debate doesn’t give a fuck about debating. You can’t debate democracy with people who don’t believe in democracy, or debating, or empirical evidence, or anything approximating truth or reality.

The essay mourns the multiple ways that the persistence of older journalistic constructs has operated to normalize Trump–how it has created false equivalencies, and allowed anti-democratic forces to denigrate, undermine and delegitimize democratic institutions.

What that has left us with is a curdled public discourse in which the pro-democracy side is mostly yelling at each other about what more can be done to stop Trump; holding up scorecards like figure skating judges on the effectiveness of this or that anti-Trump strategy; assessing the purity of each other’s anti-Trumpism; and railing against democratic institutions like the media for wilting in our hour of greatest need. Not all of those are bad impulses, and to be clear they are not the cause but rather a symptom of our current predicament. It’s what happens when the “other side” rejects democracy as a means of resolving these differences. It’s like having a public debate against an abandoned lectern.

I’m holding my breath…

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