The talking point on the Sunday talk shows, pushed hard by Republicans and enabled by the media, was that Democratic presidential nominee Joe Biden needs to explain his stance on “court-packing,” that is, adding more justices to the Supreme Court. Some Democrats have begun to talk about that outcome if the Republicans ram through Amy Coney Barrett in these last few days before the election.
This is bizarre first of all because the Republican Party did not even bother to write a platform this year to explain any policies at all for another Trump term, and Trump has been unable to articulate any plans for the future, while the idea of “court-packing” is a future hypothetical, dependent on what today’s Republican Senate does.
It’s bizarre because Trump is egging on his followers to violence—just today he urged supporters to “FIGHT FOR PRESIDENT TRUMP.” He is so misrepresenting the reality of the coronavirus pandemic that today Twitter tagged one of his tweets as a violation of Twitter rules and Dr. Anthony Fauci publicly objected to the Trump campaign’s misrepresentation of his statements about Trump’s handling of the pandemic. The campaign quoted Fauci out of context and without his permission, but campaign spokesperson Tim Murtaugh dismissed Fauci’s complaint, saying that they were indeed Fauci’s words, and Trump agreed. The New York Times has also continued its coverage of Trump’s taxes, showing him to be deep in what amounts to a pay-to-play scandal, in which he has essentially turned the U.S. government over to the highest bidder, revealing himself to be the most corrupt president in U.S. history.
And yet, today the chair of the Republican National Committee, Ronna McDaniel, told Margaret Brennan on CBS’s “Face The Nation” that she would not talk about Trump’s financial scandals because “You have a Democrat running on the biggest power grab – the absolute biggest power grab in the history of our country and reshaping the United States of America and not answering the question. That’s all we should be talking about.” The media seems to be taking this distracting bait.
What makes this so especially bizarre is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology. Since the Nixon administration began in 1969, Democrats have appointed just 4 Supreme Court justices, while Republicans have appointed 15.
The drive to push the court to the right has led Republicans under Senate Majority Leader Mitch McConnell to take the unprecedented step of refusing to hold a hearing for Barack Obama’s nominee for the Supreme Court, the moderate Merrick Garland, on the grounds that it was wrong to appoint a Supreme Court justice during an election year. There have been 14 justices confirmed during election years in the past, but none has ever been confirmed after July before an election.
Obama nominated Garland in March 2016, but now, in October, McConnell is ramming through Trump’s nominee Amy Coney Barrett.
Americans are worried that the increasingly conservative cast to the court does not represent the country. Four, and now possibly five, of the current justices were appointed by presidents who lost the popular vote, and have been confirmed by senators who represent a minority of the American people: Justice Brett Kavanaugh’s Senate support represented just 44% of the country.
So there is talk of increasing the size of the Supreme Court. This is legal. The Constitution does not specify the size of the court, and it has changed throughout our history. But the current number of justices—9— has been around for a long time. It was established in 1869.
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Since Nixon, Republicans have made control of the nation’s courts central to their agenda. But while most voters tend to get distracted by the hot-button issues of abortion or gay rights, what Republican Supreme Courts have done is to consolidate the power of corporations.
Powell believed that business interests needed to advance their principles “aggressively” in universities, the media, religion, politics… and the courts. “The judiciary,” he wrote, “may be the most important instrument for social, economic and political change.” He wrote that “left” institutions like the American Civil Liberties Union (ACLU), labor unions, and civil rights activists were winning cases that hurt business. “It is time for American business—which has demonstrated the greatest capacity in all history to produce and to influence consumer decisions—to apply its great talents vigorously to the preservation of the system itself.”
The following year, Nixon appointed Powell to the Supreme Court. During his tenure in office, Nixon would appoint three more justices. Nixon’s successor, Gerald Ford, would appoint another.
Democratic President Jimmy Carter, who followed Ford, appointed none.
Under President Ronald Reagan, cementing the interests of business in the Supreme Court would become paramount. Reagan’s Attorney General, Edwin Meese, deliberately politicized the Department of Justice in an attempt, as he said, to “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future elections.” Reagan made 4 appointments to the Supreme Court.
During Reagan’s term, lawyers eager to push back on the judicial decisions of the post-WWII Supreme Court that had expanded civil rights and the rights of workers began to organize. They wanted to replace the current judges with ones who believed in “originalism” and who would thus cut regulations and expanded civil rights.
In 1982, law students at Yale, Harvard, and the University of Chicago organized the Federalist Society for Law and Public Policy Studies to advance a legal ideology that opposed what they believed was “judicial activism.” Judges who expanded rights through their interpretation of the laws were “legislating from the bench,” they believed, intruding on the rights of the legislative branch of the government.
By the time of President George W. Bush, the Federalist Society was enormously influential. Members of the society made up about half of his judicial appointments. The society also urged Bush to stop letting the American Bar Association rate judicial nominees, believing the ABA was too “liberal” and therefore rated conservative judges more harshly than others.
During the Obama administration, justices who were associated with the Federalist Society were deciding votes for the 2010 Citizens United decision permitting businesses unlimited contributions to political campaigns and the 2013 Shelby v. Holder decision gutting the 1965 Voting Rights Act.
Under Trump, its power has grown even greater. Five of the 8 current members of the Supreme Court—Samuel Alito, John Roberts, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh—and now Supreme Court nominee Amy Barrett, are members of the Federalist Society.
While Republicans desperately want to make the Barrett nomination about her religion, the reality is that the members of the Supreme Court who are wedded to an originalist interpretation of the document threaten far more than reproductive rights. Among other things, the court is taking up the Affordable Care Act just a week after the election.
Notes:
https://www.npr.org/2020/10/11/922806310/biden-campaign-continues-to-deflect-on-court-packing
https://en.wikipedia.org/wiki/List_of_presidents_of_the_United_States_by_judicial_appointments
Powell memo: https://d1uu3oy1fdfoio.cloudfront.net/wp-content/uploads/2012/09/Lewis-Powell-Memo.pdf
https://billmoyers.com/content/the-powell-memo-a-call-to-arms-for-corporations/
https://www.theatlantic.com/politics/archive/2018/10/senators-kavanaugh-represented-44-percent-us/572623/
https://www.nytimes.com/interactive/2020/10/10/us/trump-properties-swamp.html
https://www.cnbc.com/2020/09/26/koch-network-campaign-for-support-trump-supreme-court-nominee.html
https://www.cnn.com/2020/10/11/politics/fauci-trump-campaign-ad-out-of-context/index.html
Trump promised to bring China to heel. He didn’t. The result is a pitched conflict.
“Trump’s bet that he could tame China’s rise through a mix of personal charisma and dealmaking prowess has faltered in the fourth year of his presidency,” David Nakamura reports. “Trump and Chinese President Xi Jinping … have not spoken since March. Tensions over the coronavirus pandemic have exposed Trump’s claims of friendship with Xi … Trump was on the precipice of declaring victory with his China strategy as recently as January, when he hosted senior Communist Party officials in a White House celebration of a modest trade pact. But the president has since shifted to attacking Beijing as an even greater danger than he suggested in 2016 … Yet Trump’s renewed tough talk has served as a tacit acknowledgment that his vow to bring China to heel has failed, even as he seeks to convince voters that [Biden] is not strong enough to stand up to Xi. … Trump has moved the U.S.-China relationship from one of skeptical cooperation to one of distrust and antagonism, leaving the world’s two major powers at odds on a range of economic and national security issues that are resonating around the globe."
- North Korea’s massive, new intercontinental ballistic missile was paraded through the streets of Pyongyang over the weekend, a chilling reminder the regime poses a greater threat to the United States now than when Trump took office. Kim Jong Un has the capacity to strike our homeland. (Simon Denyer)
Police Arrest Heshy Tischler As His Backers Swarm Home Of The Jewish Journalist He Targeted
Four days after leading a violent mob against a journalist in clear view of NYPD officers, Heshy Tischler, the right-wing radio host and City Council candidate, was arrested by police outside his Borough Park home on Sunday night.
Tischler was charged with unlawful imprisonment and inciting a riot in connection with the assault of Hasidic journalist Jacob Kornbluh on October 7th, police said. Shortly after his arrest, Tischler's ultra-Orthodox supporters gathered outside Kornbluh's home, waving Trump flags and threatening him until the early hours of Monday morning.
Tischler, an outspoken Trump supporter and coronavirus denialist, has commanded the community's bubbling rage over Governor Andrew Cuomo's renewed lockdown measures, leading a string of protests that have erupted in violence against bystanders and journalists.
Within minutes of his arrest on Sunday, a post from Tischler's Twitter account revealed Kornbluh's address. Video shows hundreds of people gathered in the street and attempting to storm the building. A friend of Kornbluh's said the group stayed until 2 a.m.
Kornbluh, a veteran journalist with Jewish Insider, has drawn the ire of some in the community for his reporting on attempts to skirt social distancing restrictions during the pandemic.
On Wednesday night, Tischler urged a crowd to surround Kornbluh while chanting "moser" — a term for a Jewish informant, deserving of the death penalty, according to some religious texts. The mob repeatedly lunged at the reporter, pinning him against a wall, while kicking and spitting at him.
"Yeah he got beat up," one of the men involved in the beating told Gothamist afterward. "He's lucky to be alive."
On Friday, Tischler claimed he'd reached an agreement with NYPD to turn himself into police on Monday, after the Jewish holiday of Simchat Torah.
According to Reverend Kevin McCall, a Black civil rights leader, Tischler had arranged with Chief of Detectives Rodney Harrison and Brooklyn District Attorney Eric Gonzalez to surrender alongside McCall. Authorities changed their mind, McCall said, after Tischler claimed in a video that he was reconsidering the offer.
"You're arresting me when we made a deal," Tischler can be seen shouting on Sunday night, as police dragged him away in handcuffs. "We made a deal that I was going to be arrested tomorrow."
"This is serious crime," Rev. McCall told Gothamist. "If it was in a Black community, he would've been arrested immediately. Even after the mayor and governor called for his arrest, for him not to be in police custody says something about the New York City police department. Are they afraid of Heshy?"
