Is it really possible to impugn the character of So-Called Att'y Gen'l Jeff Sessions?
Plus: The Ninth Circuit Court weighs in
in the war between Trumpery and Reality
Has there ever been anything mysterious about the motives or conduct of So-Called Att'y Gen'l Jeff Sessions?
"Unfortunately, while this episode has all kinds of symbolic importance, and while it will and should serve as a major rallying cry for Democrats going forward, one key takeaway here must be that it constitutes a brutal reality check for Democrats about the long and difficult slog they face in the near future. . . .
"Democrats are going to be shut up. They are going to be shut out. They are going to lose. A lot. And it’s going to be dispiriting and difficult. The response to this particular Warren episode has thus far been innovative and energetic. The question is whether this kind of energy can be sustained."
-- Greg Sargent, in "The GOP’s silencing of Elizabeth Warren
is a brutal reality check for Democrats" (Wednesday)
is a brutal reality check for Democrats" (Wednesday)
My mind has this habit of latching onto issues that often aren't thought to be the real issues but nevertheless are the issues that seem to me to be staring us in the face. As in the case of Senate Republicans' (this means you, Miss Mitch) shocking silencing of Sen. Elizabeth Warren during the debate over So-Called Sen. Jeff Sessions's appointment as U.S. attorney general.
Don't get me wrong. I think the fact that a U.S. senator can be silenced in Senate debate for the offense of quoting the late Coretta Scott King and Ted Kennedy, who are no longer with us today to speak for themselves on the subject, but on which they made their views about as clear as clear can be when they had the chance, is beyond huge. It's monumental. As well as shocking. Shocking, however, without being at all surprising -- except perhaps for the surprise that they could get away with it. But then, that's what being a right-winger has come to: never assuming you can't get away with something until you're given it your best effort. Like stealing a Supreme Court seat.
And it was only to be expected that this shameless, indeed unshamable, effrontery would only get worse in the Age of Trump, which after all is all about unshamable effrontery. I suppose that Senator Warren is supposed to be grateful that she was merely silenced on this one issue and not, you know, permanently silenced in the manner so beloved of the godfather and spiritual role model of the Age of Trump, Vlad "The Disappearer" Putin.
OOPS, THE LAW OF UNINTENDED CONSEQUENCES
YET AGAIN BITES THE SLIMEBAGS IN THE BUTT
As Greg Sargent put it Wednesday in the excellent "Morning Plum" piece from which I've quoted at the top of this post:
To be sure, the crackdown on Warren has already backfired in significant ways for Republicans. It is already drawing more attention to Coretta Scott King’s remarks about Sessions than Warren or Democrats could ever dreamed would happen. Warren read the full letter outside the Senate chamber, which was a great gesture. As Warren put it: “I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate.”Now we're going to come back to Greg's argument. (By way of a hint, his very next words Wednesday were: "But the point is, Republicans don’t care what message this sends.") Because this still isn't what my mind has childishly fixed on.
Indeed, McConnell’s suggestion that Warren had impugned Sessions’s motives and conduct — which he buttressed by reading aloud King’s words — implicitly conceded that Coretta Scott King had impugned Sessions’ motives and conduct, and that this must not be given a hearing on the Senate floor. The message all of this sends about Sessions and the GOP on civil rights is awful for Republicans. . . .
Which is this. Let's say for the sake of argument, that you wanted to "impugn the motives and conduct of our colleague from Alabama." How exactly would you go about it? I mean, any more than the scum-sucking son of a bitch himself has done with every breath he's drawn in his miserable existence? Has there ever been anything the least bit mysterious -- or hidden -- about his motives or conduct? Talk about "transparent"!
WHICH BRINGS US BACK TO THE POINT
THAT GREG SARGENT WAS JUST MAKING --
that, while "the message all of this sends about Sessions and the GOP on civil rights is awful for Republicans," "the point is, Republicans don’t care what message this sends."
In fact, in a separate "Morning Plum" point Wednesday, "SILENCING OF WARREN MAY HAVE BACKFIRED," quoting the NYT ("Within hours of being shut down on the Senate floor, Ms. Warren read the letter from Mrs. King on Facebook, attracting more than two million views — an audience she would have been unlikely to match on C-Span, if she had been permitted to continue speaking in the chamber"), Greg noted: "But Republicans seem to have excited a whole lot of conservatives by shutting Warren up, so it’s probably all good from their perspective."
This sure rings true to me. Trump voters are surely thrilled by the silencing, even temporarily, of that commie bitch. So why don't we let Greg make his point his own way? (Note: lotsa links onsite.)
But the point is, Republicans don’t care what message this sends. And herein lies the way in which this whole episode captures the unsettling broader reality that Democrats face right now. Warren was shut down from speaking by Republicans who employed an arcane Senate rule; Democrats are shut out of power, and Republicans will use any and all procedural means at their disposal to render them as powerless and irrelevant as possible. And Republicans see no reason to fear any political repercussions from whatever message any of it sends.
Republicans pocketed a Supreme Court seat that was President Obama’s to fill and will now likely get their choice of justice installed in it. If Democrats filibuster that choice, or filibuster the next justice Trump picks, Republicans will likely nuke the Senate rules and blow past Democratic opposition. Republicans are totally abdicating any meaningful oversight role toward Trump, despite his unprecedented conflicts of interest and possible corruption, and they are unlikely to pursue independent probes into Russian meddling in our election, making it less substantially likely that the public will ever be fully informed about these things. Republicans have clearly signaled they will do everything they can to prevent other institutional watchdogs from exercising any oversight of their own. This will only get worse.
The outpouring of anger that greeted the muzzling of Warren constituted another sign of the grass-roots energy among Democrats that is arising in response to Trump and his GOP, and that could matter a lot going forward. But Democrats are nonetheless likely to lose a lot of fights to come. The confirmation Tuesday of Betsy DeVos as secretary of education, after an intense grass-roots-driven campaign from Democrats, is a hint of more defeat and despair ahead. Indeed, no matter what the public thinks about the GOP effort to keep King’s thoughts about Sessions quiet, Republicans will likely get him installed as attorney general before long.
The question is what will happen to the spirit among Democrats amid more demoralizing losses — and once it sinks in that the nonstop awfulness of Trump isn’t going away, which itself could exacerbate the demoralization. Indeed, Democratic strategist Simon Rosenberg tells me that Democratic lawmakers confide they are already worrying about this problem, based on what they are seeing back home. “It is clear that Democrats on the Hill are acutely aware of their challenge,” Rosenberg says. “They have very little power to block Trump, yet they are getting a clear message from their partisans back home that they expect results.”
This is not to say that Republicans can’t be defeated in important ways. Trump and Republicans may be backing off their vow to scrap protections for people brought here illegally as children. Republicans are running into massive trouble with their push to repeal and replace Obamacare, and Democrats have effectively drawn attention to Republicans’ bumbling, incompetence and shrugging lack of concern for how repeal would harm millions. It’s not hard to see GOP efforts to roll back financial oversight going down to defeat. The opposition to Trump’s immigration ban has effectively dramatized the cruel realities of Trumpism and may, at a minimum, dissuade Trump from trying more policies like it. And so on.
But Democrats are going to be shut up. They are going to be shut out. They are going to lose. A lot. And it’s going to be dispiriting and difficult. The response to this particular Warren episode has thus far been innovative and energetic. The question is whether this kind of energy can be sustained.
AND JUST TO MAKE IT MORE DISCOURAGING --
At what point, even if such activity can be sustained, will enough of it reach the core of belief of the true believers who put So-Called President Trump in the White House to make it possible to begin bringing the country out of this nightmare?
POSTSCRIPT: IN THE WAR TRUMPERY VS. REALITY WAR,
REALITY MAY WIN THE OCCASIONAL SKIRMISH, BUT --
Once I finished writing the above, I was at liberty to read Derek Hawkins and Fred Barbash's Washington Post account of the three-judge panel of the Ninth Circuit Court's refusal to reinstate the so-called Trump administration's travel ban on People We Don't Like, pending adjudication of the actual challenge to the ban.
I'm reproducing it here in full, including even many of the links, partly because it's interesting to see as mainstream an outlet as the WaPo taking it as a given that the so-called Trump administration functions so heavily at odds with, if not in contradiction to, real-world facts, and partly because the case is interesting enough that it deserves to be looked at slowly and carefully, and partly for another reason I'll share when we're done reading.
Travel ban ruling: In court as on Twitter, Trump confronts evidence gapNow, as to my other reason for sharing this piece in full: as a reminder that in the war between Trumpery and Reality, Trumpery may win the occasional skirmish, but in the slightly longer term, the odds are that Reality is gonna take it on the chin.
By Derek Hawkins and Fred Barbash February 10 at 6:47 AM
9th Circuit Judges Richard R. Clifton, top, William Canby Jr. and Michelle Taryn Friedland.
The list of evidence-free claims from President Trump and his administration is long and growing. “Millions” of people voted illegally. Inauguration turnout was the “biggest ever.” All negative polls are “fake news.”
No matter how hard the administration is pressured to support its assertions, no matter how many “four-Pinocchio” and “pants on fire” ratings follow, Trump doesn’t relent. It’s hard to imagine he feels the need to, especially when polls such as one this week out of Emerson College show registered voters find his administration more truthful than its interlocutors in the news media.
Trump’s defiance might work well as political theater, and there’s no denying that it made for an effective presidential campaign. But as a legal strategy, it’s already hitting roadblocks.
The first came last week, when a federal judge froze his controversial executive order shutting U.S. borders to refugees and migrants from seven mostly Muslim countries.
But the real blow came Thursday, when an appeals court upheld that freeze. In a unanimous opinion, a three-judge panel on the U.S. Court of Appeals for the 9th Circuit found that the government had failed to show why the travel ban needed to be immediately reinstated, as The Washington Post’s Matt Zapotosky reported.
To arrive at that decision, the appeals court did something close to what fact-checkers, journalists, scholars and others do every day when Trump and his surrogates make extraordinary claims: It demanded extraordinary evidence — or at least some evidence — for the administration’s arguments.
And it got none, the judges said.
The court asked the government to explain the “urgent need” for the order to be restored, but Justice Department lawyers offered “no evidence,” the opinion read.
It asked for evidence in the form of legal precedents that noncitizens affected by the order “have no rights” under the Constitution. The court found the government’s examples unconvincing.
It also asked for evidence that immigrants from the countries named in Trump’s order had committed terrorist attacks in the United States. Instead, the government merely argued that the court “must not review its decision at all,” according to the opinion.
[Read the 9th Circuit’s opinion on the travel ban]
In court papers, the government argued that the president’s authority to suspend immigration was “unreviewable,” meaning the court couldn’t check his power. That seemed to alarm the judges.
“There is no precedent to support this claimed unreviewability,” the opinion read, “which runs contrary to the fundamental structure of our constitutional democracy.”
The only thing at issue in the case right now is the temporary order blocking Trump’s travel ban. A decision on whether the travel ban is legal or constitutional could be a long way away.
The Trump administration says the travel ban is necessary to protect national security and defend the country against terrorism. Trump went so far as to assert on Twitter that if a terrorist attack did happen, the judiciary would be to blame.
While language like that might play well with the base, it was part of what caused the court to recoil, suggested Mary Fan, an immigration and refugee law professor at the University of Washington School of Law.
“The court can’t abdicate responsibility in the face of fear-filled words like ‘terrorism’ or terms of deference like ‘national security.’ These are, of course, important interests, but you have to have substance behind the words,” Fan told The Post.
“You can’t just play upon these fears without giving the court a substantial reason to justify extreme exercises of power,” Fan said. “The Trump administration made the 9th Circuit’s job easier in the sense that they were so extreme in what they claimed about unreviewability that they made themselves into a straw man easy to knock down.”
The Justice Department said in a statement it was reviewing the 9th Circuit’s opinion.
Trump reacted angrily on Thursday, accusing the judges of making a “political decision.” He had previously used the phrase “so-called judge” to refer to U.S. District Judge James L. Robart, who penned the lower court decision that paved the way for the appeals court’s ruling.
[How Trump’s travel ban broke from the normal executive order process]
Trump’s attacks on the judiciary will likely continue, but he’ll have a hard time bashing individual judges on the appeals court because the opinion was unanimous and unsigned, said Jonathan Hafetz, a constitutional law professor at Seton Hall University School of Law. Writing on the legal blog Balkinization, Hafetz described the 9th Circuit’s ruling as an “important moment in the defense of judicial independence.”
“President Trump, from his reckless implementation of the Executive Order to his flagrant attacks on the integrity of federal judges hearing these challenges, has transformed the case into an early — and critical — showdown over the independence of the judiciary in the United States,” Hafetz wrote. The judges, he added, may have penned the opinion unanimously because they “recognize the real and grave threat Trump poses to the foundations of the constitutional order.”
In a case such as this one, the government faces a heavy burden. To lift the stay on Trump’s executive order, it had to show both that it was likely to succeed on the merits of the case, and that leaving the stay in place would cause “irreparable injury.” It failed on both fronts.
“Although we agree that ‘the government’s interest in combating terrorism is an urgent objective of the highest order,'” the court said, citing a past Supreme Court opinion, “the government has done little more than reiterate that fact.”
The judges continued: “Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.”
In a damaging aside, the court raised questions about whether it could trust the administration’s credibility on the status of the order itself, saying that the administration, through the White House counsel, had shifted positions on whether the order would apply to lawful permanent residents.
[Trump’s travel ban is the controversial policy almost nobody was begging for]
“The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments,” the court wrote. “We cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”
In short, the court found the administration essentially unbelievable, as have many of Trump’s critics.
Though the court’s ruling represents a significant setback for the administration, some legal observers cautioned about reading too much into it. The court has yet to rule on the merits of the case, including whether the order discriminates against Muslims specifically, as the plaintiffs — the states of Washington and Minnesota — argue.
“Are there tea leaves to read in this opinion? There sure are, particularly with respect to the judges’ analysis of the government’s likelihood of prevailing on the merits and its blithe dismissal of the government’s claims of national security necessity,” wrote Benjamin Wittes, editor in chief of Lawfare.
“But it’s worth emphasizing that the grounds on which this order was fought are not the grounds on which the merits fight will happen,” Wittes wrote.
“Eventually, the court has to confront the clash between a broad delegation of power to the President — a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders — in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.”