Saturday, May 27, 2023

Blowing Out 500,000 Candles to Celebrate the 100th Birthday of Henry "the Mad Bomber" Kissinger

By Meta-Content Generator A.J. Liebling
with Bill Kilgore reporting from Ho Chi Minh City

War criminal, serial liar, and Nixon confederate Henry Kissinger turned 100 this week (even as vastly better people like Tina Turner died much younger).  The press, which has given this dissembling poseur a free ride since 1968 was all in on the celebration.

First, for those of you younger than, um, 50, let's start with a little background on this great son of the Harvard (now Some Finagler) Faculty of Arts and Sciences, courtesy of The Nation:

We'll get a little deeper into the napalm-charred weeds but Anthony Bourdain's assessment remains painfully accurate:

“Once you’ve been to Cambodia, you’ll never stop wanting to beat Henry Kissinger to death with your bare hands. You will never again be able to open a newspaper and read about that treacherous, prevaricating, murderous scumbag sitting down for a nice chat with Charlie Rose or attending some black-tie affair for a new glossy magazine without choking. Witness what Henry did in Cambodia – the fruits of his genius for statesmanship – and you will never understand why he’s not sitting in the dock at The Hague next to Milošević.”

What was Anthony so mad about? Just this:

Henry Kissinger says Good Morning Cambodia

Kissinger, who’d been appointed national security adviser, advised Nixon to order the bombing of Cambodia to pressure Hanoi to return to the negotiating table. Nixon and Kissinger were desperate to resume the talks that they had helped sabotage, and their desperation manifested itself in ferocity. “‘Savage’ was a word that was used again and again” in discussing what needed to be done in Southeast Asia, recalled one of Kissinger’s aides. Bombing Cambodia (a country the US wasn’t at war with), which would eventually break the country and lead to the rise of the Khmer Rouge, was illegal. So it had to be done in secret. The pressure to keep it secret spread paranoia within the administration, leading Kissinger and Nixon to ask J. Edgar Hoover to tap the phones of administration officials. Daniel Ellsberg’s Pentagon Papers leak sent Kissinger into a panic. He was afraid that since Ellsberg had access to the papers, he might also know what Kissinger was doing in Cambodia.

To impress North Vietnam, Kissinger ordered the secret bombing of a country the United States was not at war with.  That bombing took the lives of between 150,000 and 500,000 Cambodians (with the lack of precision testimony to the scale and brutality of the assault).  God knows how many more were crippled or wounded.

Fun fact: North Vietnam was not impressed.

Kissinger's war crimes had been preceded by actual crimes, including treason on behalf of his patron Dick Nixon before the 1968 election:

Still a Harvard professor, .. Kissinger, “on his own,” offered to pass along information he had received from an aide attending the peace talks. . . .At the end of October, Kissinger told the Nixon campaign, “They’re breaking out the champagne in Paris.” Hours later, President Johnson suspended the bombing. A peace deal might have pushed Hubert Humphrey, who was closing in on Nixon in the polls, over the top. Nixon’s people acted quickly; they urged the South Vietnamese to derail the talks.

Through wiretaps and intercepts, President Johnson learned that Nixon’s campaign was telling the South Vietnamese “to hold on until after the election.” If the White House had gone public with this information, the outrage might also have swung the election to Humphrey. But Johnson hesitated. “This is treason,” he said....

But we're not mainly interested in Kissinger's litany of war crimes and blunders, including green-lighting barbaric crimes against civilians by the Chilean and Argentine military dictatorships, his insane advocacy of nuclear war in Europe while still locked in a cubicle in Littauer, his pointless prolongation of the Vietnam War for three sanguinary years, or his endless toadying to the increasingly paranoid and unhinged Dick Nixon, including an Oval Office prayer session.

We're interested in Kissinger's decades of success in generating gushing press coverage like this:

Kissinger has always enjoyed a favorable press

As if recoiling from their own sudden doggedness in exposing Nixon’s crimes, reporters and news anchors rallied around Kissinger. While the rest of the White House was revealed as a bunch of two-bit thugs, Kissinger remained someone America could believe in. “We were half-convinced that nothing was beyond the capacity of this remarkable man,” ABC News’ Ted Koppel said in a 1974 documentary, describing Kissinger as “the most admired man in America.” He was, Koppel added, “the best thing we’ve got going for us.”

Koppel's idiotic fawning drivel was the rule.  Marvin Kalb, once a well-regarded journalist for CBS News, sold his soul to get Henry's cooperation on a book that would make him a pantload of royalties:

Marvin Kalb was granted the ultimate honor of an exclusive television interview. They give credit where it is due, beginning their page of acknowledgments with this offer of appreciation: “Our thanks go first to Henry A. Kissinger, who, as an historian as well as a statesman, understands the critical importance of primary sourcing. He has been generous with his time and his knowledge.” It can fairly be said that his generosity has been rewarded.

How times have changed!  Now that Nixon's criminality and the insane brutal futility of the Vietnam War (and its Cambodian and Laotian spinoffs) have passed into incontrovertible history, Kissinger...still gets a fawning reception from the press on the no doubt auspicious occasion of his 100th birthday.

The Washington Post had the nerve to publish an op-ed by an objective source – Henry's non-war-criminal son David, explaining Henry's secret to a long and healthy life.  The correct answer of course was a sociopathic lack of shame or guilt, but instead David told us

His mind is a heat-seeking weapon that identifies and grapples with the existential challenges of the day. In the 1950s, the issue was the rise of nuclear weapons and their threat to humanity. 

His actual position was that we should use nuclear weapons in Europe to prove how big and strong we are, an idiotic view that he adopted to suck up to Nelson Rockefeller and other Cold Warriors who might be able to advance Henry's career.  (And his mind, supposedly attracted by heat, somehow never spent even one minute regretting the bombs that burnt Cambodia towns and children.)

To balance out that piece, the Post published another P.O.S. patronizing those who did not join the birthday celebrations.

But the younger generation — or at least, the left-leaning among them — is indeed letting its own thoughts (and, yes, emotions) be known on the internet. There, making light of Kissinger’s eventual death — and remarkable longevity — has been a popular meme for years. 

Really? How popular is it? We waste a lot of time on the Internet, and we've never seen it, although we have spotted many mentions of the people who have been outlived by Liza Minelli, who is not a war criminal.

The piece did make glancing reference to Kissinger's atrocities in Cambodia but dropped the issue upon quoting this breathtakingly arrogant non-response from the Great Prevaricator:

“This is a program you’re doing because I’m gonna be 100 years old. And you’re picking a topic of something that happened 60 years ago. You have to know that it was a necessary step. Now, the younger generation feels that if they can raise their emotions, they don’t have to think. If they think, they won’t ask that question.”

We have thought about it, because hundreds of thousands of Cambodians, Chileans, and Argentinians aren't alive to think about it for themselves.

We think that in the year 2023 the media's continuing to ignore Kissinger's criminality while treating him as a statesman is almost as dangerous as their continuing to ignore the Republican Party's participation in subversion and insurrection while treating it as a legitimate part of American politics.

In other words, it's an insult to everyone we remember on this Memorial Day and every thing they fought for.

Monday, May 22, 2023

Good and Dead: Ruthless despoiler of great newspapers dead at 81

The obituary page of The Massachusetts Spy

By Obituary Editor Luke Reschuss

Even in an era where ruthless rapacious financial finaglers run rampant over the shattered ruins of once-great American businesses, he stood out for his ability to commit mayhem on a massive scale.

Sam Zell, 81, closed his final deal last week, as he descended from the ranks of the rich and feared into death and obscurity.  Not a great trade, Sam.

Zell, a Jewish lad from Poland, fled the Holocaust in 1939, leaving Anne Frank behind to her fate.  This was not a great trade either.

The Chicago Tribune, before Sam Zell...

Having learned how harsh and cruel the world could be, he spent his entire career returning the favor, amassing at first a large fortune in the cutthroat (and cutpurse) world of real estate investing, enjoying the insane tax breaks that a nobbled Congress lavishes on real estate speculators, and no one else. 

Having trousered $5 billion for selling his real estate empire to an even bigger bunch of financial finaglers, he looked for new worlds to ravish and came upon what was then at the time America's premier and highly profitable media company, Tribune.

In 2007, the Tribune Company was a media colossus.  Its holdings included great and profitable newspapers like the Chicago Tribune, the Los Angeles Times and Long Island Newsday.   It also owned enormously successful and profitable television stations in Chicago (the nation's third largest TV market), Philadelphia (fourth), and New York (numero uno).  The cherry on top was the Chicago Cubs, the city's beloved baseball franchise which was eventually sold for $800 million.

By the time Sam Zell's financial genius had finished its work, the Tribune Company was a smoking ruin, thousands of jobs had been cut, and great newspapers had been hollowed out into worthless husks, still being plundered for pennies by another generation of rapacious asset-stripping finaglers who picked up the remains from the wreckage of Sam's empire.

He lost the Tribune empire the old-fashioned way: greed and hubris, aided and abetted by Wall Street vultures ready to pocket huge fees (and other revenue streams) by packaging risky securities and palming them off on schmucks, or, as they are known in investment banking, customers.

The deal, like a lot of buildings put up by unscrupulous real estate investors, was unsteady and jerry-built from the start.  At least when you're building physical structures, you have to comply with building codes.  When you're building financial structure, you can engineer anything you want, limited only by your greed and the credulity of investors.  In other words, no limits at all.

So in the pre-2008 heyday of insane debt structures, Zell loaded up Tribune with $13,500,000,000 in debt to buy out shareholders.  He put in his share too: $315 million, or 2.3% of the purchase price. 

Now things get shady.  To get out of paying taxes, he turned Tribune into something called an ESOP, a tax-advantaged structure based on employee ownership.  And indeed the employees pension plan did own the equity.

The only problem: the equity was worthless on day one, and declined in value thereafter.  Sam made his contribution as debt, so he would be made whole before the employees made a penny on their shiny new company.  Or, as The New York Times put it,

But employees, who had no say in the deal, assumed a crushing burden and stood to gain only if the company survived, while Mr. Zell, for a relatively modest investment, became chairman and secured an option to buy 40 percent of the company for $500 million if it prospered....Employees filed a barrage of lawsuits, but they had little effect, and the transaction was widely denounced by media commentators as lopsided — a potentially lucrative coup for Mr. Zell at the expense of thousands of employees, whose jobs, careers, pensions and futures had been mortgaged under a mountain of debt.

Funny how that works. Having engineered this tottering financial structure, Zell, like the Master of the Universe he thought he was, hired an absolutely unqualified schmuck to run it into the ground:

Mr. Zell installed managers who, like him, had no newspaper experience. His chief executive, Randy Michaels, a former radio executive and disc jockey, resigned in the face of allegations that he had sexually harassed staff members and alienated many more with outlandish cronyism .... 

The entire shabby mess collapsed into bankruptcy a year later, and rotted there while Zell, lawyers, and other vultures feasted on the carcass.  The employees' pensions were wiped out, followed by their jobs. As a result, the newsrooms were hollowed out:

The Chicago Tribune lost its foreign and national staffs, slashed deeply into its Washington presence, and began whittling away at its costly veterans back home.

The punch line? After the bankruptcy, the Tribune ended up in the hands of even worse asset strippers who have completed the hatchet job Zell began, to the point where the newspaper has no office in the city of Chicago. The Los Angeles Times, like The Washington Post and The Boston Globe, ended up in the hands of a rich weirdo, who seems to have staunched the bleeding.

So much for Sam Zell the business legend.  You'll no doubt be surprised that he was an even worse person:

...and after he was done with it

A contrarian in business and private life, Mr. Zell eschewed conventions and was notoriously blunt, often barking at employees and using vulgarities in speeches and meetings. When the former Secretary of State Warren M. Christopher and others met him to voice concern over the health of The Los Angeles Times, Mr. Zell said he did not care what they thought, using an expletive for emphasis.

Zell, like other grubba naars, sought to compensate for his rapacious conduct, revolting personality and lack of height by sprinkling a few shekels of his ill-gotten gains on various charities willing to fawn over benefactors like him:

Mr. Zell, who had homes in Chicago, Sun Valley, Idaho and Malibu, Calif., was an active philanthropist, giving millions to the University of Michigan, Northwestern University and the Wharton School of the University of Pennsylvania. He was also a major donor to causes in Israel and to the American Jewish Committee, a Jewish primary school in Chicago named for his father, and other cultural and educational institutions.

That makes it OK, then. 

What makes his story remarkable is its lack of remarkability: almost every tycoon could be described as a miserable dick willing to sacrifice their employees and their enterprises at the altars of their greed and ego.  It's almost like we've built and encouraged a society that values rapacity over anything else.  

Of course, not all of them grow up to be President.

We like to think of Zell in his new abode, pitching to Mephistopheles his plan for a can't-miss leveraged buyout of Hell.   We wouldn't bet against him.  And we wouldn't bet on reading all about it in the shells of the great newspapers he plundered.

Saturday, May 13, 2023

Chaos at the Border - Journalists Trapped for Days!

By Immigration Editor Emma Goldman

EL PASO, Texas – The termination of the transparently fraudulent “public health” ban to seeking asylum has as predicted resulted in chaos, catastrophe, and disaster on the U.S. Southern Border.

Hordes of journalists, politicians and cable news talking heads have descended on the border, overwhelming both desperate refugees and the resources of hard-pressed area residents.

Flood of refugees not spotted at border

“We can't even walk down the street without being accosted by a camera crew,” complained El Paso resident Jaime Burke. “They've taken over our city and we need help desperately,” he said.

As the expected flood of refugees seeking admission failed to materialize, the plight of TV reporters desperately seeking alarming video to stream around the world only worsened.  “I've been standing out in the hot sun for nine hours and I still don't have any usable footage of thousands of scary immigrants rampaging across the border,” complained three-time local Dayton Emmy winner Janet Cooke.

But she said that her plight was growing ever more desperate.  “This sun is ruining my foundation, I'm sweating like a pig and my photographer spilled his latte over the my blazer.  How am I supposed to survive this ordeal?”

Jacksonville weekend anchor Judy Miller described her suffering: “First I missed my connection in Dallas and then the airline lost my luggage so I had to get a new outfit at Target.  Target!”  She shuddered at the unbearable memory.

“And now that I'm here, I have to go from border crossing to border crossing looking for someone to interview.  If this keeps us I'll be forced to interview Ted Cruz!”  Gritting her newly-veneered teeth, Miller vowed to keep going no matter what.  “There's no turning back for me.  If you think I'm going back to the 5 a.m. traffic report in Jax, you're out of your mind.  I'm just hoping for a better life as a reporter.  Is that too much to ask?”

Desperate journalists try to find a story at the border

Despite all she had been through in her torturous journey to the border, Miller said she would still maintain her dignity.  “Katrina Pierson wanted me to interview her live and I told her I'm desperate, but not that desperate,” she said.

Adding to the plight of the thousands of reporters trapped without a story along the Rio Grande, the occasional refugee that does show up at the points of entry are getting wise to the media's need for scary looking brown people.

“I tried to interview some big scary looking Venezuelan yesterday and he told me that he wouldn't go on camera until I agreed to forward his proposal for a seven-part reality series about his journey to the network,” complained ruggedly handsome cable reporter Mel Mush.  Mush admitted that the refugee's arc was “pretty compelling.”

Everyone was critical of the federal government's response to the media crisis at the Southern border.  “Where are the federal officials?  Where are the tours of border facilities?” asked Mush. “The federal response has been totally inadequate to handle the number of live shots that should have beeen anticipated.”

Reporters were also critical of the lack of resources on the border. “I need a mani-pedi and the only place in Eagle Pass that can do it is all booked up,” whined Cooke.

She also rubbished the buses provided by the Department of Homeland Security to transport reporters among the widely-scattered crossing points at the Texas border. “They're school buses!  They're diz-gust-ting!”

Miller was even more outraged. “The government has totally failed to provide adequate shelter.  I had to stay at a Motel Six 50 miles away in Salt Flats.  Do you know what the desert air does to my pores?”

Reporters are at their breaking point at the border

In response to the crisis, Biden Administration officials have airlifted 1,500 Army troops to the region, where they will do nothing but provide pleasing fodder for TV B-rolls.   Mush grudgingly admitted that the moderately exciting visuals of fully uniformed troops walking around in the heat and polishing the Humvees was “better than nothing, but still inadequate to our need.”

As a result of the lackluster federal response, state and other officials are rushing to fill the coverage gap.  Racist screaming Border Patrol union hacks have offered their services for local and national TV hits.  Fat white men in cowboy hats supposedly representing Texas have also been willing to spread anti-immigrant bigotry to any reporter that needs a live interview.

With refugees not flooding the border crossings, the crisis is not expected to abate until Ted Cruz puts on his war surplus commando gear and farts around in a raft on the Rio Grande.

As a last resort, journalists may have no choice but to actually tell their viewers that the efforts of desperate refugees to flee violence and oppression and do the work that Trump voters in a million years wouldn't do is not in fact a crisis or disaster and that anyone who claims otherwise is a cynic or a bigot.

When confronted with that prospect, Cooke said, “ I'd sooner appear on camera without my eyelashes than tell people the truth about immigration.”

Sunday, May 7, 2023

No Escape from the Laboratories of "Democracy"

By Legal Editor Scott V. Sandford with
National Correspondent Nellie Bly

We ran out of space last time to bring you up-to-date on the latest outrages perpetrated by what Justice Brandeis once called “laboratories of democracy,” or as you know them, states.

It turns out that not a week goes by in America when Republican-bent state legislatures aren't engaged in subverting not only basic human rights but democracy itself.  And, spoiler alert, the chances of making them stop by voting are, thanks to the corrupt and Republican-owned Supreme Court, between slim and none – and slim just moved to California.

In Missouri, the Republican Attorney General denied all Missourians the right to receive medical care for a life-threatening condition.   Meanwhile, its bent Republican legislature is likely to pass a ban on gender-affirming medical care for trans kids:

Despite Freels [a 17-year-old trans woman] testifying that gender-affirming care has made her feel much happier and has helped her heal from depression and suicidal thoughts, Missouri lawmakers seem poised to approve legislation that bars puberty blockers, hormone therapy and gender transition surgery for minors.

Ban medical care that parents want for their children? What could go wrong, other than the kids killing themselves? 

And by the way, whatever happened to the Republican braying about “parents' rights?”

Plenty of room on Boot Hill for
future victims of Texas Republicans

Down in the pro-life state of Texas, meanwhile, the state's vague but drastic anti-abortion laws are threatening the health and safety of women forced to march up to death's door before they can be treated for a failed pregnancy:

[Amanda] Zurawski, who was diagnosed with an “incompetent cervix” during her second trimester last year, received an emergency abortion only after her condition deteriorated and she went into septic shock.

“I cannot adequately put into words the trauma and despair that comes with waiting to either lose your own life, your child’s life, or both,
” she told The Intercept earlier this year. “For days I was locked in this bizarre and avoidable hell.”...

Texas is one of 13 states nationwide that currently outlaws abortion. The language in its abortion laws is both restrictive and “incredibly vague,” Zurawski said, “and it leaves doctors grappling with what they can and cannot do, what health care they can and cannot provide.”

Last month, the nonprofit Center for Reproductive Rights sued Texas on behalf of Zurawski and four other women who suffered “catastrophic harms” because they were forced to continue carrying their babies. The suit seeks clarity on when and how healthcare providers can legally perform an abortion in the state.

We all know the value that Texas places on human life; if you don't just send your kids to school and then swing by the outlet mall.

By the way, how's all this cruel hard-right extremism playing in Texas?

Abbott, who is in his third term as governor, has never been more powerful in Texas. He enjoys near complete approval from Republican voters — and many independents and South Texas Democrats — for his policies such as border security initiative Operation Lone Star. His political appointees are scattered throughout the state in influential sectors and in courtrooms. Because of redistricting, he and his allies have helped make it harder for a Democrat to win or hold onto seats. And he has managed to fortify his hold on voters and their state representatives regardless of the state’s growing Black, Latino and Asian American population. 

We'll get to the redistricting bit shortly. 

Next stop, Montana, where anti-trans bigotry is more highly valued than democracy.  The state's only trans legislator was silenced, and her constituents disenfranchised because the white Republican men who dominate that august institution had their feelings hurt:

No one is safe from the Montana Legislature

First-term Democratic Rep. Zooey Zephyr had been prevented from speaking on the chamber floor by the House speaker since April 20, when she refused to apologize for telling colleagues who supported a ban on gender-affirming care for youths that they would have “blood” on their hands. ...

The ruling means ... Zephyr wouldn't get a chance to speak on the House floor unless she's reelected next year.

Republicans have a two-thirds majority in the Montana Legislature and control the governor's office, attorney general's office and almost every other statewide elected office.

“Your rights stop at a legislative supermajority,” Zephyr said.... “If two-thirds of a body decide that you and your constituents don't deserve representation, you don't get it. ... That should be a huge worry for people who want to stand up for democracy."

The standoff between Zephyr and House Republicans originated in a dispute over gender-affirming care for minors, a bill Gov. Greg Gianforte has signed into law. It has evolved to dovetail with a nationwide debate over the robustness of democracy in politically polarizing times. 

That's a somewhat elliptical way to put it, but give ABC News at least one point for pointing out that democracy itself is on the line in these bent Republican states.  By the way, is that the same Greg Gianforte who slugged a reporter for asking him a question he didn't like?  (Yes.)

Our last stop today is North Carolina, where the punchline is delivered: even if voters tire of the hateful
Frankenstein's monsters coming out of these state laboratories, they can't do anything about it because those same states have rigged the vote and the Republican-bent Supreme Court is A-OK with that.

In addition to stomping on the right of women to obtain an abortion after 12 weeks and the rights of parents to decide on gender-affirming care for their children,  the North Carolina legislature now has a golden opportunity to gerrymander itself into perpetual power:

In fact the power to draw the district maps is the power to rule.  For Congressional races, the math breaks down thusly:

North Carolina voters are almost evenly split between the two major parties; Donald J. Trump carried the state in 2020 with 49.9 percent of the vote. But the original map of congressional districts approved by the G.O.P. legislature in 2021, and later ruled to be a partisan gerrymander, would probably have given Republicans at least 10 of the state’s 14 seats in the U.S. House of Representatives.

There is no reason to expect a better outcome with state legislative districts, with the result that 49.9% of the vote would give the Republicans a veto-proof 71% of the seats.

That seems...bad. But not if you're a Republican Supreme Court Justice!

When congressional and legislative maps are redrawn each decade, they often are manipulated to discriminate against communities of color or for partisan gain. Courts, both state and federal, play an important role in keeping these practices in check. Unfortunately, in June 2019, the U.S. Supreme Court ruled that federal courts may not police partisan gerrymandering, leaving that issue to state courts or the political process. 

Unfortunate indeed, as the North Carolina example demonstrates. We know why the real reason the bent Republican court ruled in favor of, um, Republicans, but let's pursue their stated rationale:

John Roberts sure has changed since college

The chief’s [that's John Roberts '76 to his many college friends] opinion in Rucho v. Common Cause doesn’t withstand even basic scrutiny. The court’s majority decided that partisan gerrymandering disputes are “non-justiciable” — that is, the courts can’t intervene in them — because, essentially, courts aren’t equipped to come up with a standard to determine when gerrymanders go too far. Never mind that the lack of what the court calls a “judicially manageable standard” appears to have literally never held the justices back before on any other issue. Never mind also that, as the Brennan Center’s Tom Wolf has pointed out, five different federal courts, relying on the work of respected political scientists, have had little trouble coming up with manageable standards to strike down partisan gerrymanders in Wisconsin, North Carolina, Ohio, Michigan, and Maryland. To Roberts, it’s all a bunch of “sociological gobbledygook.” 

Speaking of manageable standards, how did Republican Justices (including the easily-confused John Roberts) decide what's a “Major Issue” and thus outside the power of regulatory agencies despite clear statutory authority?  The Brennan Center has an answer: “What that means is vague. But we are already seeing lower court judges using the new doctrine to undo rules they just don’t like. “Major” may mean “if a judge with a lifetime appointment and the Federalist Society on speed dial doesn’t like it.”” Funny how that works.

So short story long: thanks to the bent Republican Supreme Court, in many cases it may be impossible to rescue women, children, and other unfortunates from mayhem in the Laboratories of Democracy merely by voting in state elections.  It will require litigation, but most of all we will need a concerted national effort to replace every Republican legislator and Justice with non-corrupt non-craven Democrats who don't mingle with billionaire plutocrats under the benign gaze of...Adolf Hitler.

Most of all, it takes recognition that we've got a problem here.

Sunday, April 30, 2023

States: What Are They Good For? Absolutely Nothing

By Legal Correspondent Saori Shioseki with
Jenny Herk in Florida

You may have noticed that Americans don't just live in a nation, they live in a state.  This seems great if you live in a cool state like California or a snobby one like Massachusetts, but less so if you live in some distant wilderness like North Montana [Louise, please confirm name – Ed.].

Once they were useful for attempting to distract pre-screen rugrats by getting them to count license plates on the Merritt Parkway.

But now what are they good for?

Justice Louis D. Brandeis, a smart fella and great Bostonian who unlike his successors never got to go on half million dollar vacations with Nazi-admiring plutocrats, once explained the value of states:  

“It is one of the happy incidents of the federal system,” Justice Louis D. Brandeis wrote in 1932, “that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Let's see what experiments in democracy are cooking in the labs today.

First stop: America's #1 hellhole, Florida.

A blend of Southern racism and Northern corruption, Florida has always been a place where democracy came to lie on a chaise, stroke out, and die.   And that was before pudding and torture loving Ron DeSantis came to town.

First, DeSantis and his Republican stooges, um, state legislators, decided to overturn the decision of Florida voters to allow ex-cons to vote.  To undermine the verdict of the voters, they hatched a scheme to make it a crime for such individuals to register to vote unless they had paid all of their fines and courts costs.  Fun fact: there is no way for these unfortunate souls to know what those fees and costs are.  Ergo, they can't vote, forever, exactly as the voters didn't intend:

Florida: a great place to visit, but not to live free

In November 2018, Floridians changed that by adopting [a] state constitutional amendment that automatically restored the right to vote for most Floridians with felony convictions, except those convicted of murder or a felony sex offense, who had completed the terms of their sentence.

The amendment was expected to restore voting rights to as many as 1.4 million Floridians. But on the heels of its passage, the Florida Legislature and governor limited the reach of this historic re-enfranchisement. They adopted a law requiring that certain court debts be paid before the right to vote is restored. This pay-to-vote requirement disqualified hundreds of thousands of people who owe court debts they can’t afford to pay.

The state adopted this antidemocratic system knowing there is no centralized database where potential voters can learn whether they even owe disqualifying court debts.  

Just to take a step back, why are elections for federal offices under the control of racist state laws and thirsty and hungry pudding lovers anyway?   Even in 1789, the slaveholding white men who wrote the U.S. Constitution suspected there might be a problem here:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. 

U.S. Constitution, Art. I, Sec. 4.

Ron's come a long way since Gitmo. Or not.

But the assault on freedom concocted in Dr. DeSantis's lab doesn't stop at voting rights.  There's also the little matter of freedom of speech and thought disappearing down there.  

There used to be this small hip liberal arts college down in Sarasota, called New College, a Florida state institution.  Professors taught and students learned, or not, and all was jolly until ol' Go-Go Boots came to town:

New College of Florida’s board of trustees declined to grant tenure to five veteran faculty members on Wednesday, a controversial move that critics said stemmed from inappropriate interference from the Sarasota school’s interim president, Richard Corcoran.

The vote followed an unusually heated debate among the trustees, frequently interrupted by jeers and chants of “shame on you” from a crowd onlookers who sat through the nearly three-hourlong meeting....

Only four members of the 13-person board voted in favor of tenure.., including faculty representative Matthew Lepinski and student trustee Grace Keenan.

The five faculty members were chemists Rebecca Black and Lin Jiang; oceanographer Gerardo Toro-Farmer; Islamic scholar Nassima Neggaz; and Hugo Viera-Vargas, who studies Caribbean music. All were described as excellent researchers and teachers by dozens of colleagues and students who spoke before the board.

At the end of the trustees meeting, the typically reserved Lepinski addressed his colleagues: “I am concerned over the
direction this board is taking.… I wish you the best, but this is my last board meeting.”

He later announced that he was also leaving his position in the computer science department at the end of the term, the second professor from the department to do so in recent weeks.

The tenure cases came under scrutiny earlier this month after Corcoran circulated a memo recommending that the board vote to defer or deny tenure to the five faculty members under consideration. He cited “extraordinary circumstances,” including “a renewed focus on ensuring the College is moving towards a more traditional liberal arts institution” and “current uncertainty of the needs of the divisions/units and College.”

The memo, which has drawn criticism from the faculty union leaders and national organizations advocating for academic freedom, also referenced the school’s recently overhauled board of trustees and administration.

In January, Gov. Ron DeSantis appointed six trustees with a mission to reform the small liberal arts college. In its first two meetings, the trustees voted to terminate then-President Patricia Okker and dismantle the school’s office of diversity, equity and inclusion. ...interim provost Bradley Thiessen [had] approved the applications of all five candidates in February while standing in as interim president prior to Corcoran’s arrival....

Another new priority for the school is to “be a beacon of free speech to the nation,” the plan states. To achieve that aim, it says, incoming freshman will be required take courses in “the importance of free speech and inquiry,” and the school will host lectures on “the status of free speech nationally and around the world.
Florida's new vision for public schools

The free speech bit was a nice ironic touch. It's also part and parcel of Florida's authorization of vigilantes to yank books from school libraries under the transparently fraudulent rubric of “parents' rights,” which in Florida means the right of self-appointed censors to decide what your kids can read in violation of your parental rights.

We used to think that academic freedom in public institutions was protected by the First and especially the Fourteenth Amendment of the U.S. Constitution, but these days, who knows?

It's gotten so bad that even the mighty and mighty evil Walt Disney Co. has sued to prevent Florida from further violating its rights to express its views:

Disney filed a 77-page lawsuit in federal court, charging DeSantis and other officials with violations of the contracts clause, the takings clause, due process and its First Amendment right to protected speech. In its lawsuit, Disney says, "This government action was patently retaliatory, patently anti-business, and patently unconstitutional." The company is asking a federal judge to declare the board's action "unlawful and unenforceable."

It's beginning to look like we'll have to leave our visit to other laboratories of democracy for another day (Texas's assaults on our country and our rights could take a dozen posts by itself), but before we go, let's remember what's going on.

The idea that states were somehow “sovereign” has a long history in America.  In fact, we even fought a war over it.  Although you won't learn any of this in Florida schools, state sovereignty lost. 

To reconstitute the shattered Union, the reconstructing fathers enacted among others the 14th Amendment which states in part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amend. XIV, Sec.1.

What happened?  For the first time in the 253-year history of The Massachusetts Spy, we blame – Both Sides.  The white extremists doing business as the Republican Party led the attacks of freedom and democracy in Florida and other states.  But their opponents, until very recently, put up almost no resistance.

And who can blame them? It's exhausting enough to keep with with national politics.  A lot of us didn't have the time and energy to worry about what was going on in some state capitol 600 miles or more from where we lived. As a result, while we were sleeping, our state-level democracies were stolen from us.

Even under the post-14th Amendment understanding of state power, as the great Janelle Bouie noted,

As a unit of governance, a state legislature is both unusually powerful, with broad discretion over large areas of public policy, and unusually open to partisan and ideological capture through luck, timing and open manipulation of the rules. Part of the political story of the past decade (and farther back still) is how the Republican Party and the conservative movement have used these facts to their advantage.

We're starting to think that the problem with federalism is federalism itself.

We hate to disagree with the great Louis D. Brandeis, but on the basis of the evidence, we'd have to say that federalism is terrible and needs to be cabined to the maximum extent possible by all three branches of the Federal Government: the Executive, acting primarily through the Justice Department enforcing the 14th Amendment, the Legislative Branch by passing laws to enforce the promises of the 14th Amendment, and the Judiciary, alas currently dominated by bent Republicans who use federalism as a tool to prop up white supremacy.

If we end up in a country in which half of us live in states made unfree (and undemocratic) by out of control and invariably Republican state Governors and legislators, we will have traded our freedom for a mess of pudding. 

To us, that seems much worse for liberty and democracy than some Stanford Law students interrupting a bent Federal judge.

Saturday, April 15, 2023

While you were sleeping

By Washington Correspondent Nellie Bly
with Legal Correspondent Saori Shiroseki

Last week we reported on the Good Friday murder of the legal rights of 150 million American women by a bent whackjob judge in America's jurisprudential center, Amarillo, Texas. 

Although we are not known for our optimism, we ventured to predict that “this gruesome opinion is in our view unlikely to survive the tender mercies of even the bent Fifth Circuit.”  It turns out we were only sort of right.

The Fifth Circuit in action

The Republican-bent Fifth Circuit, unable to stomach the indefensible outcome of Amarillo Matt's “opinion,”  decided he couldn't reverse a 23-year-old decision approving mifepristone.  But to the surprise of no one, they appeared to endorse large chunks of the insane reasoning of his opinion.

As to standing, which requires plaintiffs to have a distinct and palpable injury (rather than just a sad about being on the losing side of a political or policy battle), the Fifth Circuit first reversed the burden of proof by requiring the defendants to prove that plaintiffs didn't have an injury, rather than requiring that plaintiffs allege a plausible and real injury.

Having turned standing on its head, the Fifth Circuit found merit in plaintiffs' preposterous claims that they were injured by the approval of mifepristone because some day they (supposedly doctors) might have to treat someone for complications of mifepristone, among all the other business that comes into an emergency room.  Since the incidence of such complications is proven to be extraordinarily low, the claim is inherently ridiculous.

Nonetheless, the Fifth Circuit found that these forced-birth doctors would face supposedly “enormous stress and pressure” by treating women who had taken the drug.  Whether the stress and pressure was enormouser than the usual stress of dealing with emergencies in, wait for it, the emergency room caused by anything else, like school kids whose bodies have been shredded by high powered weapons of war following an exercise of Second Amendment rights, is unknown.  

In any event, as we pointed out as long ago as last week, the complication rate from pregnancy is far higher than from mifepristone.  So use of the drug can be expected to decrease stress and pressure in the ER, and banning it will increase ER visits and the stress and pressure attendant thereto.

But the stupidity and mendacity of the Fifth Circuit didn't end there.  As a second injury, they cited the possibility that forced-birth doctors might have to treat mifepristone patients with procedures that could constitute an abortion in supposed violation of their constitutional right to deny health care to critically ill patients at whim.

That injury too is irrelevant at best.  Outlawing safe and legal abortion will lead to botched illegal abortions.  The treatments for those abortions could be the same as the ones these doctors are too full of the Holy Spirit to treat.  So granting them the relief they seek (outlawing mifepristone) won't address their supposed injury (doing their jobs).

On the supposed merits of the forced-birthers' claim, the Fifth Circuit said that their challenge to the 2016 loosening of FDA restrictions on the use and dispensing of mifepristone might well succeed. Again, they illegally flipped the burden of proof to require the FDA to prove its approval process was flawless, rather than demanding that plaintiffs prove it was arbitrary and capricious.

This was probably because the plaintiffs submitted no competent science-based evidence tending to establish that the 2016 and 2020 amendments were not well founded in science and law.  That is because there is no such evidence, either before those amendments or in the years since the conditions were changed.  

Finally, in considering the balance of equities and interests in letting the Amarillo injunction ruin the lives of women, the Court placed weight on the truly bats*** crazy argument that the 1873 Comstock Act prohibition on mailing abortion drugs had any, repeat any, relevance to the question of whether the FDA acting under its separate statutory authority properly approved mifepristone in 2000 or modified its approval in recent years or whether the FDA's science-based approval process should be set aside indefinitely.

As a final grab at the pussies of 150 million American women, the Court placed zero weight on the interests, needs, hopes, fears, and rights of those women to safe, legal medication abortion.  

"Your interests don't matter on appeal of a stay, dear."

Perhaps you are now wondering as to who appointed these clowns to the once-distinguished Fifth Circuit bench.  If you had zero Democrats on the panel (two appointed by the Tangerine-Faced Defendant and one by George W. Bush), you won!  Your bet, that is, not your legal rights.

The Department of Justice, properly appalled by this travesty of judicial review, kicked it to the Supreme Court, six of whose members took away the rights of all Americans to an abortion just last year.  What happens next is anyone's guess.

We suspect that Sulky Sam Alito and his, um, confederates are looking for some way to send the case back to Amarillo for more endless factfinding without making any ruling on the law, which if followed would require the whole mess to be rubbished, but frankly no outcome is out of the question, including a holding that the FDA itself is unconstitutional.

What's the moral of the story?  You probably have guessed it by now: none of this would have happened had not 55% of white women voted for the Tangerine-Faced Grifter in 2016, who larded the bench with eighth-rate extremists to entice forced-birth evangelicals to vote for a depraved sex offender.

It's not like we weren't warned:

Mrs. Clinton, the presumptive Democratic nominee, seized on the court’s ruling to warn that Mr. Trump, her presumptive Republican opponent, poses a threat to women. She recalled his suggestion this year that abortion be banned and that women who violate that ban be penalized. She also said that with other states also seeking to restrict access to abortions and with Republicans seeking to defund Planned Parenthood, proponents of abortions rights could not afford to let up. 

“We’ve seen a concerted, persistent attack on women’s health and rights at the federal level,” Mrs. Clinton said in a statement. “Meanwhile, Donald Trump has said women should be punished for having abortions.” 

That was on June 27, 2016.  What were supposed advocates for women's rights saying after Hillary sounded the alarm?

A few weeks later, noted feminist Maureen Dowd laser-focused on the real issue facing women in the election, which is what Hillary had said about Monica Lewinsky 20 years earlier:

After the Monica affair, she deflected questions about Bill’s cheesy behavior by summoning up the specter of the Vast Right-Wing Conspiracy. Now she deflects questions about the emails and foundation ethical tangles by summoning up the specter of the Vast Alt-Right Conspiracy. 

I'm sure that the women who may be forced into unsafe abortions or forced birth if Trump's bent courts outlaw mifepristone will be much comforted to recall how Hillary stood by her horndog husband when Maureen said she shouldn't, because that was the real issue facing women in 2016.

Even supposedly more progressive minds didn't appreciate the stakes of that election.  Here's a report from The Guardian on August 2, 2016:

By the way, if all of the idiots who had voted for Jill Stein had instead voted for Hillary Clinton, American women would not today be living in fear that their right to a safe medication abortion would be stripped from them.

And with the catastrophe imminent our brilliant pundits (in this case Kathleen Parker) still didn't hear the sounds of Zeroes coming in low over Diamond Head:

So she told her many devoted readers in The Washington Post on November 4, 2016.

When Trump filled the Supreme Court seat stolen from Merrick Garland with some pompous reactionary, here's what Kathleen had to say:

Watching the Senate confirmation hearings of Supreme Court nominee Neil Gorsuch, one might easily find oneself wishing Gorsuch were president of the United States.

Alas, he's not. But Gorsuch's selection to replace Antonin Scalia is the sanest act committed by a president whose first 60 days have left him with an approval rating under 40 percent and persistent questions about his stability.

For those of you who haven't been paying close attention since then, Gorsuch was one of the six bent Republican Justices who stripped American women of their rights over their own bodies just last year.

The point is not just to drag pompous bloviators like Kevin's sister and Parker.  The point is when it comes to American democracy at this moment, don't calm down.  We won't be fine no matter who wins.  If a Democratic candidate did something you didn't like, e.g. refusing to divorce her tomcatting husband, think very carefully about the alternative.

We're sorry if your feelings are hurt.  We're sorry if you have to get off your ass and vote in each and every boring, stupid election, even the ones for the Tennessee legislature.

But we'd be even sorrier if next week we learn that thanks to our Republican-bent courts, women who thought they could obtain a safe legal medication abortion start looking at their coat-hangers with a new and desperate eye.

Sunday, April 9, 2023

Legal News: 150 million women lynched in Texas

By Legal Editor Scott V. Sandford and
Legal Correspondent Saori Shiroseki reporting from America's Legal Capitol

AMARILLO, Tex. – The desolate windswept prairie of Amarillo, Texas seems like an unlikely forum for limiting the rights of 150 million or so American women who might become pregnant someday, but in Republican America, no forum is too obscure to take away rights or enforce minority Republican rule.  In other words, Tobago rules the world! [No one will ever get that conflicts joke so stop it – Ed.]

On the night of Good Friday, when he thought no one notice his order to crucify American women, bent Trump-appointed “judge” Anthony Comstock [Surely, Matthew Kacsmaryk? – Ed.] issued an order purporting to ban the dispensing of or prescribing one of the two drugs used for a medication abortion, a safe procedure used by women millions of times a year to exercise their right to terminate an unwanted pregnancy.

The courthouse in Amarillo rules the world!

It came as a surprise to no one that this judge in this court would issue a decision free from any taint of lawfulness.  But it's worth examining the outrage closely first so that its fatal defects can be brought into the light and second to place in the context of a country whose democracy is crumbling under the unrelenting nationwide onslaught of white extremists (Hello, Tennessee!).

Let's start by examining the judge. Certainly any federal judge would approach an abortion-related legal question with an open mind, right, Washington Post?

A few months into his freshman year, he wrote a letter to the editor of the student newspaper about abortion.

“The Democratic Party’s ability to condone the federally sanctioned eradication of innocent human life is indicative of the moral ambivalence undergirding this party,” Kacsmaryk wrote, endorsing a Republican Party platform that would grant a fetus the full legal protections of a person.

Democrats, he added, had “facilitated the demise of America’s Christian heritage” and mounted a “contemptuous assault on the traditional family.”

Faith was the “driving force and line” for Kacsmaryk growing up, said [his sister] Griffith. Raised by two born-again Christians in the suburbs of Fort Worth, Kacsmaryk and his two sisters .... all learned early that abortion was wrong.

“It was known, kind of like my faith,” Griffith said.

No wonder even spineless Susan Collins couldn't vote for this zealot (after being assured by Mitch McConnell that he had the votes without her).

How did this case with nationwide reach even get to the prairie wasteland of Amarillo rather than any one of the other 384 federal courthouses in this land of the free?  Funny story:

The lead plaintiff in the abortion pills case, the Alliance for Hippocratic Medicine, incorporated in Texas — with a “registered agent” in Amarillo — several months before the lawsuit was filed. While the group’s website does not include any location or contact information, records filed with the Texas secretary of state’s office show that the group’s mailing address is in Tennessee. 

Judge Kacsmaryk pulls the plug on women's right to choose

What a coincidence!

Now the fun stuff: Amarillo is located in the Northern District of Texas.  Right now there are 16 judges in that District.  What are the chances of the biggest abortion case in the land ending up in the lap of a forced-birth zealot?

How do they assign cases in the Northern District of Texas?  The answer is clear and precise, as set forth in ND Tex. Local Rule 83.3:

The district judges shall determine the method by which all cases are assigned to individual judges.

So just because a case is filed in the wilds of Amarillo doesn't mean that it has to be decided by the sole judge sitting in that tank town.  In fact you would think that a group of judges concerned about the potential for abusive “judge shopping” would ensure random assignment across the whole district.

If you thought that, all we can say is sister, welcome to Texas!  As our old friend University of Texas Law School Professor Steve Vladeck tells us, the rule that all cases filed in Amarillo are heard by one bent judge is not the law of the land, it's the whim of the 16 judges in the Northern District.  

We think that matters of fundamental importance to the entire nation, including at least 150 million women who might someday decide to terminate a pregnancy, should not be decided by 16 lazy black-robed hacks in Texas, but what do we know?

Moving on from the procedural to the substantive travesty of justice, let's just have a look at this hack's opinion.  Its fatal defect is found deep in its bowels.  Actually, we're just s***in' you.  It's on page 1.

The opinion starts with a whine about how the FDA supposedly delayed acting on the petitions of the forced-birth pressure groups who wanted it to rescind its 2000 approval of mifepristone, part of the two drug medication abortion regimen.  From the opinion itself, it is clear that the FDA eventually responded to the petitions, but not in the way that Judge Holy Roller liked.

The legal point buried under all this is that a federal judge has an unquestioned power under the Administrative Procedure Act [Stop snoring back there – Ed.] to order an agency to make a decision about something.  Once the agency does so (here, following the mountains of evidence proving that the drug is safe and effective), the judge can review its decision and if the judge finds it wanting (after according proper deference to agency fact-finding) it can order the agency to address whatever defects were supposedly found.

What a judge can't do, ever, is make its own factual findings in the place of the FDA's and then reverse the FDA's decision to approve the drug on the basis of the supposed facts it found.

And even if it could do that, it could never order the agency to take a specific enforcement action (like going after makers, sellers, or users of the drug) because the decision of what enforcement action to take if any is for the agency to decide as a matter of discretion, not as a matter for a Christian dominionist ruling from his throne of tumbleweeds. 

There are insane errors of law on every page.  We have time for only a few.

As suggested earlier, the entire lawsuit was concocted by a forced-birth pressure group.  It turns out that just because you are sad about a law you don't like, you don't actually have a claim to state in federal court.  You must have suffered a real injury, or in lawspeak, “standing.” This is an important constitutional limitation on the power of courts designed to prevent them from invalidating every law or ruling they don't like.  Like here.

Like his idol Jesus Christ turning water into wine, this whackjob miraculously turned whine into injury:

Here, the associations members have standing because they allege adverse events from chemical abortion drugs can overwhelm the medical system and place enormous pressure and stress on doctors during emergencies and complications.

(He likes to call the procedure “chemical” abortion because that makes it sound as if women are being offered Drano. Last we looked, every drug is by definition a chemical.)

But let's unpack the argument.  He says that these supposed doctors have suffered an injury because the use of mifepristone causes women to flood emergency rooms.  Aside from the falsity of the claim (mifepristone abortions are incredibly safe and complications rare, rarer than pregnancy:


), if mifepristone were outlawed, pregnant women would use another abortion pill, obtain surgical abortions, carry an unwanted pregnancy, or, in desperation, sicken and die from unsafe illegal abortions.

Each of these outcomes would raise the supposed pressure on the medical system.  So if the plaintiffs win their case, their purported injuries would only get worse.  That's not standing.  That's not a case.  That's Christian dominionism with a docket number.

When he finished butchering the law of standing, the “judge” turned to the merits, including a holding that the Comstock Act could be used to attack the FDA"s decision because it supposedly banned the mailing of mifepristone.

Anthony Comstock: He's tanned, rested, and ready!

Comstock?  Who he?  Until last year, Anthony Comstock was thought to be a somewhat comic figure from the distant past who fought a number of battles to harass and oppress women, and to be fair, the rest of us, by raging to outlaw birth control, free speech, art, and any number of other things he thought were obscene.

He's back, baby! As Michelle Goldberg explains:

Anthony Comstock, the mutton-chopped anti-vice crusader for whom the Comstock Act is named, is back from the dead.

Comstock died in 1915, and the Comstock Act, the notorious anti-obscenity law used to indict the Planned Parenthood founder Margaret Sanger, ban books by D.H. Lawrence and arrest people by the thousands, turned 150 last month. Had this anniversary fallen five or 10 years ago, it barely would have been worth noting, except perhaps to marvel at how far we’d come from an era when a fanatical censor like Comstock wielded national political power. ...Until very recently, it seemed a relic. 

By its terms, the Comstock Act, which predates the law establishing the FDA by over 35 years, prohibits mailing drugs intended to cause an abortion.  Whether it survived the comprehensive drug regulation system established by the Pure Food and Drug Act in 1906 is dubious, but its irrelevance to the case at hand is indisputable.

Nothing in the Comstock Act purports, or could be read, to limit the ability of the FDA to determine the safety of a drug, including a drug that may be used for abortion.  Assuming arguendo and it's a mighty big arguendo, that the Comstock Act remains in force, nothing prohibits anyone from sending FDA-approved drugs by private courier (or carrying them in the back of their car) anywhere.

We could go on and on, but this gruesome opinion is in our view unlikely to survive the tender mercies of even the bent Fifth Circuit.

But the legal news is not all good.  Even if the decision of this High Plains Tosser is rubbished on appeal, there are other legal threats on the horizon.  There is a non-frivolous argument that state bans on abortion medication are not pre-empted by FDA approval.  There is even an argument that states like Texas can prosecute criminally good people in Massachusetts who cause abortion pills to be sent to Texas, or even let it be known that they would provide medication to Texans who travel to Boston.

It all comes back to the voters (including 55% of white women) who elected the Tangerine-Faced Defendant and a motley crew of spineless extremist Senators who installed three, count 'em, three forced-birthers on the Supreme Court in just four years.  

Until the voters reverse their colossal bad judgment and elect a government that unpacks the bent Supreme Court (not to mention the law west of the Hudson), American women will live in a world aptly described by Elie Mystal: