it would be the belief there are systemic injustices in American society and the need to address them.
- Florida General Counsel Ryan Newman,
explaining what "woke" means to the DeSantis administration
(He thinks it's a bad thing.)
There's no featured post this week.
I've been battling a cold (or a minor case of Covid, the tests have been ambiguous, and either way I've almost recovered), which is my excuse for a number of failings:
- the mental glitch that caused me to turn Douglas Rushkoff into Douglas Coupland halfway through last week's "Two Glimpses into the Future". Douglas Coupland is also an author, but how his name got into my head, I have no idea. He had nothing to do with Rushkoff's Survival of the Richest.
- not paying attention to comments, which meant that a comment by Neo on the weekly summary sat in limbo for several days. (That comment takes me to task for complimenting Alaska's ranked-choice voting system, when STAR voting has several advantages.) I should explain this wrinkle in the WordPress software: When a comment has some number of links (Neo's had four), WordPress kicks it into my "moderation" queue. I think this is supposed to be a spam-control feature, but it happens seldom enough that I forget to check the queue.
- not getting enough research done to have a featured article this week.
This week everybody was talking about the Georgia runoff
In a runoff, turnout is everything. Early voting has set records (particularly in Democratic counties), and Election Day is tomorrow. I can easily imagine how in November, people who showed up at the polls to vote for Governor Kemp and the rest of the Republican slate might also vote for Herschel Walker. But I have a much harder time imagining Republicans going to the polls for the exclusive purpose of voting for Walker. He is, as this Warnock ad points out, an embarrassing candidate.
I've often said that speculation is a waste of both my time and yours, but I'm hopeful for a Warnock victory.
Shortly after the November election, I sent Warnock a contribution. So every time I hear Republicans complain that they're being outspent, I'm like "That's me, you losers!" I'm getting a lot of satisfaction for the amount of money I sent, especially if Warnock wins.
As you probably already know, Democrats will retain control of the Senate either way -- either 51-49 or 50-50 plus VP Harris' vote. The difference that makes is technical, but significant. Currently, all Senate committees are evenly split between the two parties. But if Warnock wins, Democrats will get a one-vote advantage on all committees. That matters for things like launching investigations and issuing subpoenas.
A Warnock victory would also mean that no single senator can veto what the rest of the Democratic caucus wants to do. Though probably anything Manchin or Sinema would object to is already doomed in the Republican House.
and a complete non-story about talks with Putin
Thursday, President Biden and President Macron of France held a joint press conference. The last question asked about the possibility of talking to Putin concerning Ukraine. Biden answered:
I have no immediate plans to contact Mr. Putin. Mr. Putin is — let me choose my words very carefully — I’m prepared to speak with Mr. Putin if in fact there is an interest in him deciding he’s looking for a way to end the war. He hasn’t done that yet. If that’s the case, in consultation with my French and my NATO friends, I’ll be happy to sit down with Putin to see what he wants — has in mind. He hasn’t done that yet.
So Biden didn't bring up talking to Putin, his first response was that he has no plans to, and that he'll only do so after Putin does something he hasn't done yet. Even then, he'll meet after consulting with France and our other NATO allies. Minutes before, the French president had said:
we will never urge the Ukrainians to make a compromise which will not be acceptable for them ... If we want a sustainable peace, we have to respect the Ukrainians to decide the moment and the conditions in which they will negotiate about their territory and their future.
President Zelenskyy, meanwhile, has insisted that Ukraine won't give up any territory.
There is only one condition for the negotiations: Russia must leave all captured territories.
So what is Biden supposed to say about talking to Putin? (Maybe something diplomatic, like: "Screw that guy. I'm not talking to him.") He says he'll talk to Putin if "he's looking for a way to end the war".
For some reason, Reuters interpreted this as a "trial balloon". Russia then said it's open to negotiations if the West "accepts its demands", i.e., recognizes Russia's ownership not just of Crimea, but also of the other Ukrainian provinces it has annexed (which its retreating forces don't even fully occupy). Then Fox News' wrote the headline: "Putin open to Ukraine talks after Biden signals willingness if Russia serious about ending war".
Basically, each side has said that it's willing to accept the other's complete surrender. That's not news.
and another bad week for Trump (and associated traitors)
Tuesday, two members of the right-wing paramilitary group Oath Keepers, including its founder Stewart Rhodes, were convicted of seditious conspiracy for their role in the January 6 riot, plus several other charges. Seditious conspiracy by itself carries a sentence of up to 20 years, and convictions for it are rare; this is the first guilty verdict since 1995.
The jury appears to have done its job carefully. There were five defendants and a list of charges, with each defendant guilty of some and not guilty of others. The deliberations took three days. So it's hard to paint this jury as radical Trump-haters or a rubber stamp for the Justice Department. It sure looks like they went through the charge/defendant matrix cell by cell and asked "Did the government prove this charge against this defendant?"
To me, the main significance of this verdict is what it implies about future cases, including a possible charge against Donald Trump. In the Oath Keepers case, the Justice Department proved to a jury (beyond a reasonable doubt) that there actually was a conspiracy behind January 6; the attack on the Capitol wasn't just a Trump rally that spiraled out of control. It also proved that the intention of the conspirators was seditious; the conspirators weren't patriots, and they weren't trying to protect democracy against a stolen election. Quite the opposite, they were trying to overthrow democracy.
What can be proved to one jury can be proved to others. Both the Oath Keepers and the Proud Boys (whose seditious conspiracy trial begins later this month) must realize they are facing serious jail time. So it must be very tempting to make a deal with the government, perhaps delivering the goods on people closer to Trump, like Roger Stone or Mark Meadows.
The verdict has political as well as legal importance. Since the insurrection, most Republican politicians and conservative pundits have tried to claimed January 6 was no big deal. Maybe Democrats on the January 6 committee were trying to make something out of it, but that was just politics.
Well, a guilty verdict is more than politics. This is a jury of ordinary Americans unanimously saying that January 6 was a very serious matter. The guilty parties weren't just some people trespassing on government property: The attack was planned, and the planners intended to subvert the orderly transfer of power.
For contrast, look at the Durham investigation, which really was just politics. It produced only minor charges against minor characters -- and never persuaded a jury that the "conspiracy" it was investigating existed at all. (Kevin McCarthy is planning a similar investigation of the January 6 committee, for all the good that will do. Bring it, Kevin.)
Ever since Trump-appointed Judge Aileen Cannon interfered in the Mar-a-Lago case (by appointing a special master to review the documents seized from Trump under a legal search warrant), I and a lot of other people have been yelling about favoritism and corruption: Cannon was clearly repaying her debt to Trump by bending the the law in his favor.
Well, it looks like the appeals court agrees. Thursday, a three-judge panel from the 11th Circuit Court of Appeals (two of whom were also appointed by Trump, but seem loyal to the law anyway) vacated Cannon's order, and sent the case back to Cannon with instructions to dismiss Trump's lawsuit.
The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.
Trump will undoubtedly appeal to the Supreme Court, but I don't think they'll take long to deny his motion. (They didn't take long to reject his claim with regard to the classified documents seized in the search.) The law here really is clear, and the Constitution does not define any special rights for former presidents.
Presumably, the Mar-a-Lago investigation can soon proceed the way any other criminal investigation would.
Mark Meadows lost his case at the South Carolina Supreme Court, which refused to protect him from a subpoena to testify to the Fulton County grand jury investigating Trump's attempt to overturn the result of the 2020 presidential election in Georgia. (Meadows is currently living in South Carolina.)
Because of a previous adverse ruling on his executive privilege claim, Trump's White House Counsel Pat Cipollone testified to a Washington, D.C. grand jury Friday.
News stories on these kinds of cases leave out the obvious: Trump's people fight so hard against subpoenas because they don't want the full truth to come out. Deduce from that what you will. Personally, I believe that if they knew something that would exonerate Trump, they'd be begging to testify.
One sign that Trump has jumped the shark is that he keeps trolling the country harder and harder, in a vain attempt to regain the edginess he had in 2015. After seven years of watching his act, we're not shocked any more if he calls Mexicans rapists or says that John McCain wasn't a hero. So he's got to turn it up to 11.
Last week we found out he had a pre-Thanksgiving dinner with a White supremacist, Nick Fuentes. (I was going to mention it in last week's Sift, but it slipped my mind.) And then Saturday he called for "the termination of all rules, regulations, and articles, even those found in the Constitution" if that's what's necessary to undo the 2020 election and install him as president again.
What's next? Maybe he'll suggest genocide against the people who didn't vote for him. Whatever.
Meanwhile, most Republicans in the House and Senate -- stalwart defenders of the Constitution that they are -- aren't commenting. One or two are condemning the remarks, but Rep. Dave Joyce isn't one of them.
Joyce, the chair of the influential Republican Governance Group in the House, was asked by ABC "This Week" anchor George Stephanopoulos to respond to Trump's post on Saturday on his Truth Social platform.
Joyce initially declined to do so, saying the public wasn't "interested in looking backwards." But Stephanopoulos followed up and Joyce ultimately said that Trump's comment shouldn't be taken seriously but that it wouldn't lead him to pull potential support for Trump's 2024 comeback bid.
"I will support whoever the Republican nominee is," Joyce said while noting he didn't think Trump would manage to win the 2024 Republican presidential nomination.
"That's a remarkable statement," Stephanopoulos said. "You just said you'd support a candidate who's come out for suspending the Constitution."
"Well, you know, he says a lot of things," Joyce said. "I can't be really chasing every one of these crazy statements that come out about from any of these candidates at the moment."
It doesn't seem to have occurred to Joyce that the GOP could find candidates who don't constantly make "crazy statements".
Former prosecutor Dwight Holton imagines how this Trump statement might play in his own seditious conspiracy trial.
Now the defendant wants you to think that this is all a misunderstanding - that he never meant to subvert the Constitution when he urged his armed followers to go to Capitol Hill to "stop the steal." "I’d never subvert the Constitution!" the defendant wants you to believe.
But we know that is not true - the evidence makes that crystal clear. We know that subverting the Constitution is right in this defendant’s wheelhouse. And you don’t have to take my word for it. We know he is ready to subvert the Constitution BECAUSE OF HIS OWN WORDS.
and the Twitter/Hunter flap
Twitter continues to go down the tubes under Elon Musk's visionary leadership, but he has learned a trick from his new right-wing allies: Play the Hunter Biden card.
So at a time when the big Twitter-related stories are falling advertising revenue, Nazis getting their accounts back, and Musk deplatforming Ye (i.e. Kanye West, who is also starting to sound like a Nazi), Musk turned some internal Twitter correspondence over to Matt Taibbi, showing times when the 2020 Biden campaign asked Twitter to take down certain tweets about Hunter Biden based on material allegedly hacked from his famous laptop.
This is being hyped as yet another great Hunter scandal, but (unless there's a lot more that hasn't been revealed yet) it seems to fall apart pretty quickly: The tweets in question posted dick pics, which probably would have been taken down for anybody. Tim Miller explains.
A related concern is why the New York Post's pre-2020-election story on Hunter's laptop wasn't the beginning of a big media firestorm. Philip Bump explains that: The authenticity of the laptop and its files was just sketchy enough to remind everyone of the 2016 DNC-emails story, which was based on Russian hacking for the purpose of getting Trump elected. The American media had been played once before, and was wary of getting played again.
The other thing the Hunter story proves is that people like Musk and Tucker Carlson either don't understand the First Amendment or don't want you to understand it. Nothing in the Hunter/Twitter story concerns the First Amendment. The Atlantic's David French elaborates:
In October 2020, when the laptop story broke, Joe Biden was not president. The Democratic National Committee (which also asked for Twitter to review tweets) is not an arm of the government. It’s a private political party. Twitter is not an arm of the government; it is a private company.
This matters for a simple but profoundly important reason. The First Amendment regulates government conduct. It does not regulate private actors. ...
This means the First Amendment protects Twitter, the Biden campaign team, and the Democratic National Committee. The “TWITTER FILES” released so far do not describe a violation of the First Amendment. Instead, they detail the exercise of First Amendment rights by independent, private actors.
Even when the government does get involved, it's not a First Amendment violation unless some kind of coercion is involved. (An example French doesn't give, but could: Police may ask media outlets not to publicize certain aspects of a murder case. As long as that's just a request, it's not a First Amendment issue.)
But there’s no evidence of any such coercion (at least so far) in the Hunter Biden story, and unless and until there is, the story of Hunter Biden’s laptop is the story of private individuals making decisions they were entitled to make. It is not the story of a government run amok.
Similarly, when Twitter decides to block the account of somebody (like Ye, for example), it's not a First Amendment issue, any more than it's a First Amendment issue when The New York Times decides not to print your letter.
A related concern is that the major social-media companies -- Twitter, Meta, Google -- have too much influence over our national conversation. But that's an antitrust problem, not a First Amendment problem.
and you also might be interested in ...
Both Iran and China seem to have yielded (at least a little) in response to public protests. Iran may be abolishing its morality police, and China is backing off of its zero-Covid policies.
What China does next is tricky, because its population is much more vulnerable to Covid than, say America's. Fewer people have immunity from previous infections, and China's vaccine is much less effective, particularly against Omicron variants.
Looking at the results achieved in countries around the world, hindsight makes the right strategy obvious: Lock down hard to limit the spread of the disease until an effective vaccine can be developed, then vaccinate everybody as quickly as you can and reopen.
An authoritarian government like China's should have an advantage in dealing with a pandemic, and during the lockdown phase it did: China has had fewer deaths per capita than almost any other country. But it should have recognized the superiority of the MRNA vaccines and imported them. Then it could have used its authoritarian power to vaccinate everybody, and reopened its economy with comparatively little damage.
Tuesday, the Senate passed the Respect for Marriage Act. The House is expected to pass it this week, and President Biden is expected to sign it.
The bill is intended as a backstop in case the Supreme Court overturns its ruling in the Obergefell case, which mandates that same-sex marriages be performed in all 50 states. As Clarence Thomas pointed out in his concurring opinion in Dobbs, the logic the Court used to overturn abortion rights would also overturn same-sex marriage rights.
But this bill stops short of forcing states to perform same-sex marriages. Instead, it says that all states and the federal government must recognize marriages performed in other states. The Clinton-era Defense of Marriage Act allowed states not to recognize same-sex marriages from other states. (To me, that always looked like a violation of the Constitution's Full Faith and Credit clause, but that's a different argument.) That would once again be the law if this bill doesn't pass and the Court overturns Obergefell.
According to the UK's Office of National Statistics:
For the first time in a census of England and Wales, less than half of the population (46.2%, 27.5 million people) described themselves as “Christian”, a 13.1 percentage point decrease from 59.3% (33.3 million) in 2011; despite this decrease, “Christian” remained the most common response to the religion question.
“No religion” was the second most common response, increasing by 12.0 percentage points to 37.2% (22.2 million) from 25.2% (14.1 million) in 2011.
Back in August, Florida Governor Ron DeSantis suspended Hillsborough County State Attorney Andrew Warren (who was elected, not appointed) because Warren said he would not enforce the state's 15-week abortion ban, and signed a statement supporting prosecutors in other states who refuse to enforce laws against gender-affirming care.
DeSantis summed up his objection by calling Warren a "woke ideologue". "Woke" has been a buzzword for DeSantis, as it has been for much of the right. But does it mean anything, or is it just pejorative?
Warren challenged his suspension in court, and the trial was held this week, though there is no decision yet. During the trial DeSantis aides were asked what "woke" meant to them. I found DeSantis' General Counsel Ryan Newman's answer astounding.
Asked what “woke” means more generally, Newman said “it would be the belief there are systemic injustices in American society and the need to address them.”
Newman added that DeSantis doesn’t believe there are systemic injustices in the U.S.
If you had asked me what conservatives mean by "woke", I would have given more-or-less the same answer. But I'm viewing them as a hostile outsider. I never imagined they would put it that way themselves.
While we're on the subject, the NYT's Jamelle Bouie has some interesting observations about the "woke capitalism" DeSantis objects to. Bouie thinks DeSantis should have read more Karl Marx. Then he would understand that capitalism inevitably upends established social relations and prejudices. You can have traditional values or you can have unfettered capitalism, but not both.
Conservatives, if their policy priorities are any indication, want to both unleash the free market and reserve a space for hierarchy and domination. But this will not happen on its own. The state must be brought to bear, not to restrain capital per se but to make it as subordinate as possible to the political right’s preferred social agenda.
The WaPo's Ruth Marcus savages the judicial philosophy of originalism. Two criticisms seem particularly on-target to me:
- Originalism encourages how-many-angels-can-dance-on-a-pinhead arguments about unknowable questions, like exactly what people in other eras thought some particular word meant. They may not have had a coherent view, and may have chosen a vague word precisely because they couldn't agree on anything more specific.
- Conservative judges apply originalism opportunistically to get the results they want. (The Founders' hostility to corporations like the British East India Company, for example, goes out the window whenever the Court considers corporate rights.)
and let's close with something family oriented
John Wilhelm has some very cute and expressive kids, a camera, and photo-manipulation skills. The three come together in imaginative ways. He calls this one "Catch It Like a Dog".
