In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.
But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.
Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)
The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.
This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.
Attorney General Merrick Garland. Photo (cc) 2016 by Senate Democrats.
Give President Joe Biden credit for having a keen understanding of what it takes to hold together his Democratic-liberal-progressive coalition.
When he said in May that it was “simply, simply wrong” for the government to spy on journalists, I was skeptical that he would follow up his sentiment with concrete action. After all, he was vice president under Barack Obama, whose harassment of reporters in his campaign against leaks was legendary. Other presidents also thought nothing about going after reporters, including Donald Trump, George W. Bush and, of course, Richard Nixon.
But press secretary Jen Psaki followed up by assuring reporters that Biden meant what he said. And, on Monday, it came to fruition with Attorney General Merrick Garland’s announcement that the administration would stop attempting to seize journalists’ records in nearly all circumstances. In a memo quoted by The New York Times, Garland wrote:
The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities.
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, issued a statement of approval, saying:
The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.
Technically, Garland was acting on his own. The attorney general is supposed to be independent of the president. But Garland could hardly continue with the anti-press policies of Biden’s predecessors after Biden himself had spoken out so strongly in favor of reform.
Garland’s actions come in response to some truly shocking actions undertaken by the Trump administration, some of which spilled over into the first few months of the Biden presidency. Acting on what appeared to be political motivations, the Trump Justice Department sought phone and email records from journalists at The Washington Post, The New York Times and CNN. Judging from the timeline, the Trumpsters seemed to be looking into those news organizations’ reporting on the 2016 Trump campaign’s ties to Russian interests.
There are some exceptions to Garland’s order in the case of life-or-death situations, or if a reporter is believed to be actively helping a source obtain classified information. But these exceptions strike me as reasonable rather than being easily exploited loopholes.
Garland’s memo also says that the Justice Department will support efforts to pass legislation making the guidelines permanent so that they don’t expire as soon as Biden leaves office. That’s really the key, since future presidents and attorneys general would otherwise not be bound by Biden and Garland’s good intentions.
The revelation last week that the Trump Justice Department had spied on three Washington Post reporters’ phone records barely caused a stir. But as much as I’d like to think that such behavior would shock the conscience, I can understand why the story failed to resonate. It was, after all, the sort of thing that all administrations do. To invoke a pandemic cliché, it was a sign that nature is healing.
Not to sound cynical and world-weary. We should be outraged. We should be shouting from the rooftops. When the government uses its awesome legal powers to stymie journalists who are trying to do their jobs, we lose our ability to hold the powerful to account. The incident would stand as yet another example of former President Donald Trump’s authoritarian tendencies — except that, at least in this instance, his actions were right in line with those of his predecessors.
As Jon Allsop of the Columbia Journalism Review wrote, “it’s not ‘bothsidesism’ to call out loathsome things that both sides are actually doing.”
So what happened? Devlin Barrett of the Post reported last Friday night that the Justice Department informed current Post journalists Ellen Nakashima and Greg Miller and former Post journalist Adam Entous that their phone records had been obtained, and their email logs had been unsuccessfully sought, for mid-April through July of 2017. The phone records showed whom the reporters were in contact with but did not reveal the contents of the calls.
There are a few details that make this particular exercise of executive power especially disturbing. The three reporters were delving into the 2016 Trump campaign’s ties to Russia during the period in question. The records were sought in 2020, when the attorney general was Trump enabler William Barr. Thus the incident could be seen as part of Trump’s long-standing obsession with covering up his ties to Russian interests.
In other respects, though, it was business as usual.
I wrote a commentary in 2012 for HuffPost headlined “Obama’s War on Journalism.” It’s a matter of public record that Barack Obama, during his eight-year presidency, showed a shocking lack of regard for the role of the press in a free society. Obama and his attorney general, Eric Holder, were obsessed with identifying government officials who had leaked sensitive or embarrassing information to the press. One reporter, James Risen of The New York Times, was threatened with jail for several years.
The Obama years were extreme but not exceptional. Previously, then-Times reporter Judith Miller actually did a stint behind bars for refusing to cooperate with an independent counsel’s investigation into possible wrongdoing by officials in George W. Bush’s administration: Someone had publicly identified a CIA operative in apparent retaliation for an op-ed (oops, guest essay) her husband had written for the Times that accused officials of ignoring evidence contradicting their claim that Iraq was trying to build nuclear weapons.
At least in that case, Bush had nothing to do with the investigation that landed Miller in jail. But Bush hardly had clean hands. After the Times reported that Bush’s National Security Agency was illegally spying on Americans, Bush denounced the paper’s work as “a shameful act,” and people around him urged that the Times be prosecuted under the World War I-era Espionage Act. The Times won a Pulitzer Prize for its revelations.
Of course, Richard Nixon’s attempts to retaliate against the press were legendary, ranging from including hostile reporters on his “enemies list” to threatening to strip The Washington Post of its television stations.
A central dilemma in all of these cases is that though the First Amendment offers robust protections for anything that the media might publish or broadcast, it is relatively silent on protections for reporting. In Branzburg v. Hayes, the 1972 decision that reporters do not have a constitutional right to protect their anonymous sources, Justice Byron White wrote that “news gathering is not without its First Amendment protections.” As a general rule, though, reporters have no more protections in going about their jobs than do ordinary members of the public.
Will the situation improve under President Biden? Not likely. As the CJR’s Allsop pointed out, the Biden Justice Department didn’t just inform the three Post journalists that they had been spied upon — it went out of its way to endorse the practice. Marc Raimondi, a spokesman for the current Justice Department, was quoted in the Post’s account as saying that the department “follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information.”
Raimondi added — shades of Obama and Holder — that “the targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”
With public approval for the media near record lows, and with the courts unlikely to carve out any new protections for journalism, it’s not realistic to think that things are going to change for the better any time soon.
At the very least, though, the president could issue guidance to his Justice Department, backed up with a strong public statement, that the government will not spy on, subpoena or prosecute journalists except under the most dire life-and-death circumstances.
Biden appears to be intent on breaking with his predecessors in many ways, especially regarding the size and scope of government. Respecting the role of the press would be one way that he could ensure greater scrutiny of that government on behalf of all of us.
Ruth Bader Ginsburg meets President Jimmy Carter in 1980. Photo in the public domain.
On this day of national mourning, do yourself a favor and read Linda Greenhouse’s magnificent obituary of Justice Ruth Bader Ginsburg in The New York Times. The accompanying video is outstanding as well.
So where do we go from here? During the Democratic primary campaign, Pete Buttigieg called for expanding the size of the Supreme Court as retribution for Senate Majority Leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s choice to replace the late Antonin Scalia.
Buttigieg’s idea gained no traction then. But Joe Biden and the Democratic congressional leadership should go to McConnell immediately and make it clear that expanding the size of the Supreme Court from nine to 11 is exactly what they’ll do if he moves ahead with his grotesquely hypocritical plan to fill Ginsburg’s seat before Jan. 3, when the next Congress is sworn in.
Of course, they will then have to go out and win the White House and Senate and hold onto the House. Otherwise, even if McConnell agrees, he’ll turn around and ram through President Trump’s choice during the lame-duck session.
Joe Biden delivered a fantastic, powerful and uplifting speech. I’m blown away. It was perfectly suited to who he is. He may not be an orator on the level of Barack Obama, but Obama couldn’t have given a speech that was so personal and intimate.
Not only was it the best speech of Biden’s life, but I also thought it was the best speech of the week — outshining some truly terrific moments from both Obamas and from Kamala Harris. I don’t see how the Democrats could possibly have done any better than they did with their virtual convention.
A word we’ve heard a lot this week is “empathy.” I don’t think we’re going to hear it much next week. Or see it, for that matter. Can we finally bring the Trump nightmare to a close?
I thought former President Obama and Sen. Kamala Harris offered an interesting juxtaposition tonight. Obama’s unsmiling speech was stark — appropriately so, given that we really are in danger of losing our democracy.
That gave Harris the chance to take a contrasting approach and end the night with a heavy dose of inspiration and uplift. And she delivered in the midst of an empty hall. You can only imagine what the reception would have been like if she’d been speaking in a packed convention center.
I also liked her reference to “the beloved community,” a phrase associated with the Rev. Martin Luther King Jr. that we hear in our church. It conjured images of a religious left, serving to remind viewers that the right doesn’t have a monopoly on faith.
You might think that Twitter would have a financial incentive to cave in to President Trump’s incoherent, unconstitutional threats over the platform’s decision to label some of his false tweets as, you know, false. In fact, Trump’s presence on Twitter is not as big a deal to the company as you might think.
First, we often hear that Trump has 80 million followers. But is that really the case? According to analytics from the Fake Followers Audit, 70.2% of his followers are fake, which is defined as “accounts that are unreachable and will not see the account’s tweets (either because they’re spam, bots, propaganda, etc. or because they’re no longer active on Twitter).”
That’s not especially unusual among high-profile tweeters. For instance, 43% of former President Barack Obama‘s 118 million followers are fake. But it’s important to understand that Trump has about 24 million followers, not 80 million. That’s a big difference.
Even more important, Trump’s presence on Twitter has not had a huge effect on its total audience. According to Statista, the number of worldwide active monthly users hovered between a low of 302 million and a high of 336 million between the first quarter of 2015 and the first quarter of 2019. (Zephoria reports that Twitter hasn’t released similar numbers since then.)
The bottom line is that Twitter chief executive Jack Dorsey could probably afford to throw Trump off the platform for repeatedly violating its terms of service. Still, he probably wouldn’t want to risk the outrage that would ensue from MAGA Country if Trump lost his favorite outlet for smearing the memory of a dead woman with his horrendous lies about MSNBC host Joe Scarborough.
A Michelle Obama for vice president boomlet is now under way. This would be a very bad idea. Joe Biden is 77, and, if he’s elected, there’s a good chance that his running mate will become president before his first term is up. Obama has no relevant experience beyond being a former first lady. You can be sure that would be used against her during the campaign. And let’s not forget that Obama has said over and over that she has no intention of ever seeking political office.
I actually think Obama would make a decent president because, like most normal people, she has the humility to know what she doesn’t know. She’s wicked smart, and she would almost certainly choose good advisers and listen to them. One of those advisers, obviously, would be Barack Obama. So a Michelle Obama presidency would probably work out OK.
But for Biden to choose someone with no history in elected or appointed government office would be a political disaster. He’s promised to pick a woman, and I think he ought to choose a woman of color. Kamala Harris would be an excellent choice, though there are others, too.
Maybe putting Michelle Obama on the ticket would turn out to be a stroke of genius. She’s popular and likable. But choosing her would be wildly unconventional, and there’s too much at stake to take that kind of chance.
The botched Iowa caucuses and the State of the Union mark the official opening of the presidential campaign. From now until November, you’re going to hear a lot about whether Democrats can take voters in the Midwest back from President Trump.
And so politics was very much on my mind when I watched “American Factory” over the weekend. The Netflix documentary, the first released by Barack and Michelle Obama’s production company, Higher Ground, tells the story of a glass factory opened by the Chinese in 2016 at the site of a former General Motors plant near Dayton, Ohio. The film has been nominated for an Oscar. (Note: Spoiler alerts ahead.)
When we talk about the working-class voters who defected to Trump in 2016, we are inevitably talking about white working-class voters. But the people who were hired by the Fuyao glass company — many of them former GM employees — comprised an integrated workforce. At least as depicted in the film, the white and African American employees get along, and though they resent their Chinese co-workers and managers for what they perceive as unrealistic demands, we don’t hear anything even remotely racist from the Americans.
The Chinese are another story. Early in the film, we hear the chairman of Fuyao, the billionaire entrepreneur Cao Dewang, say of the Americans: “They’re pretty slow. They have fat fingers.” Later we hear complaints from the Chinese that the Americans are too soft, unwilling to work overtime, and — worst of all — lacking in gratitude because they were trying to form a union. After U.S. Sen. Sherrod Brown puts in a good word for unions at the plant’s opening, we see an American manager joking to one of the Chinese executives that Brown’s head should be cut off (what a card!) and promising that Brown would be banned from future events.
The jobs, though, were a far cry from what GM had once offered. During the union-organizing drive, one of the American employees at Fuyao says that his full-time position paid just $27,000 — and that his daughter was making $40,000 in a nail salon. Fuyao may have brought blue-collar work back to the Dayton area, but at $12 an hour (raised to $14 in an attempt to head off the union), they were hardly the kind of well-paying jobs that had once made the Midwest a prosperous outpost of Democratic union households.
“We will never, ever make that kind of money again,” says one of the GM-turned-Fuyao employees. “Those days are over.”
The end of that era, decades in the making and accelerated by the Great Recession, has fueled resentment and hopelessness. As Trump tells us over and over, the unemployment rate is as low as it’s been in many years and the stock market is booming. Yet growing income inequality has led to stagnant or worsening living standards for all but the wealthy, the specter of college debt acts as a barrier to economic opportunity, and — as Boston College history professor Heather Cox Richardson said recently on WGBH News’ “The Scrum” — structural flaws in our system have elevated a small class of rich oligarchs who wield power over a majority that neither voted for them nor support their policies.
At the end of “American Factory,” we see robotic arms moving glass efficiently around the factory. Chairman Cao tours the floor with his executives as they show him the operations that will be replaced by machines in the coming years. As of 2018, we’re told as the film closes, the factory had achieved profitability — but that starting wages remained stuck at $14 an hour.
What’s disheartening is that, on one level, the Fuyao experiment worked. In return for tax incentives, a factory that had closed miraculously reopened, employing some 2,400 Americans and 200 visiting Chinese. What Fuyao didn’t bring back — and perhaps couldn’t bring back — were the middle-class wages and lifestyles that for several generations had been seen as a birthright by people who may not have gone to college but who were willing to work hard.
We are no closer to charting a path for them than we’ve been in the past several elections. Trump offers them nothing but anger and resentment. Several of the Democratic candidates have devised ambitious proposals to soak the rich and invest in their future, but we all know how difficult it is to turn even the best-devised plans into reality.
In the end, “American Factory” is a snapshot of a way of life that continues to decline. How that narrative will intersect with the 2020 campaign is anybody’s guess — but we should start getting some answers this week.
Elizabeth Warren. Photo (cc) 2012 by Edward Kimmel.
A few very brief thoughts about Elizabeth Warren and whether she’s “likable enough” (to recycle an unfortunate old quote from Barack Obama) to be elected president — the subject of a front-page story in today’s Boston Globe as well as multiple other outlets.
First, yes, of course there’s an element of sexism to it, as there was when the same questions were raised over and over about Hillary Clinton. But let’s not get carried away — it’s not just sexism. Republicans used the likability factor like a sledgehammer against Al Gore and John Kerry, and it was effective. Their opponent, George W. Bush, was regularly described as someone you’d rather have a beer with, which always struck me as pretty odd given that Bush was an alcoholic who had given up drinking.
Second, in Warren’s case, “likability” is shorthand for something real — a lack of political adroitness despite her substantive strengths and despite being, as best as I can determine, genuinely likable. The whole Native American thing is ludicrous, and it seems as though she should have been able to put it behind her years ago when Scott Brown and the Boston Herald first tried to make an issue of it. Yet it’s still here, and it makes you think she should have handled it differently. Certainly the DNA test didn’t help.
Third, there’s something to the idea that she let her moment slip away. The news and political cycles are so accelerated now that 2016 may have represented her best chance. That has nothing to do with likability. The fact that Beto O’Rourke may be a serious candidate seems silly unless you view it in that context.
Finally, Warren’s likability is a phony issue because it’s about the pundits, not the voters. If she wins the nomination and is ultimately elected president, there’s the answer to your question: she’s likable enough.
