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A Triple Play
Yesterday, of course, was the day that the Supreme Court heard arguments about Mississippi's restrictive abortion law, which would ban the procedure after 15 weeks. And while you always want to be cautious about reading SCOTUS tea leaves, it sure looks like the justices have sorted themselves into three factions of unequal sizes:
- The Conservatives (Associate Justices Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas,
and Samuel Alito): The preference of Thomas and Alito to limit abortion rights, or to get rid of them entirely, is
clear, and the two justices did nothing on Wednesday to disabuse anyone of that notion.
Kavanaugh and Barrett were at least a bit more of a mystery heading into oral arguments, since they don't have a lot of abortion-related jurisprudence on their résumés, and since they did the usual "I follow the law" song and dance when Roe came up during their confirmation hearings. The general presumption was that they are anti-choice, and based on yesterday's questioning, it would seem that presumption was right on the mark. The main theme of Kavanaugh's clumsy, and somewhat disingenuous, questions was "Why should this court be the arbiter rather than the people?" In other words—and he spelled this out in detail—instead of SCOTUS making decisions about abortion policy, maybe the elected representatives of the people, like state legislatures, should be running the show. Needless to say, this is exactly what the anti-choice states want.
Barrett, for her part, advanced two main arguments. The first is that the main reason to sustain Roe is stare decisis. It was clear that she does not find that to be a particularly compelling justification. The second is that it's much easier to give up a newborn infant for adoption these days than it was in 1973, when Roe was first decided. The implication, of course, is that if a woman has an unwanted pregnancy, she should just carry it to term, hand the baby over to an adoption agency, and everyone wins. It is remarkable that someone who has borne five children would so casually dismiss the burden that the last 7 months of pregnancy impose on a woman.
In short, unless someone was doing a heck of a job of playing devil's advocate, it sure looks like there are four firm votes to uphold the Mississippi law or, more likely, to overturn Roe entirely. - The Liberals (Associate Justices Sonia Sotomayor, Stephen Breyer, Elena Kagan): We all
know how this trio is going to vote. And given that they are in the minority, they are dangerously close to being
spectators in this case, watching to see how the six conservatives shake out. That said, the trio—with Sotomayor
taking the lead—had a pretty clear strategy for trying to influence the outcome. That is, they sounded dire
warnings about the blow to the Court's reputation that would come from striking down Roe. The money quote from
Sotomayor: "Will this institution survive the stench that this creates in the public perception that the Constitution
and its reading are just political acts?"
This was a pretty sensible tack for the liberals to take. The legal arguments were going to be covered by Solicitor General Elizabeth Prelogar and the lawyers for Jackson Women's Health Organization, but only the justices themselves can appropriately raise questions about the Court's reputation. Further, they may already have pretty good inside information that arguments rooted in the law are going to fall on deaf ears when it comes to most of their conservative colleagues. - The Swing Votes (Chief Justice John Roberts, Associate Justice Neil Gorsuch [?]): And
speaking of reputation, Roberts clearly agrees that his Court, and his political party, could be in real trouble if
Roe is struck down. He also knows that he's got a bunch of colleagues who are ready and raring to do just that.
So, his approach was to try to steer a middle course, and to ask questions about whether 15 weeks (down from the current
24) is perhaps a fair compromise, since it would cut back on the number of abortions (a win for the right!) and yet
would leave some abortions legal (a win for the left!).
The good news for the Chief Justice is that he might just have an unexpected ally here in the person of Gorsuch. Previously, Gorsuch has been pretty staunchly anti-choice, but he asked some questions yesterday that suggested he was buying some of what Roberts was selling. That said, when a justice asks questions over the course of a couple of hours that seem to be at odds with a couple of decades of past behavior, it is best to assume that the past behavior is the better predictor of intent until presented with firm evidence to the contrary.
The bad news for the Chief Justice, meanwhile, is that nobody besides Gorsuch appeared to be interested in what he was peddling. Mississippi Solicitor General Scott Stewart (R) and other anti-choice voices in the room made clear they want a complete overturning of Roe rather than a pruning back of the decision. And on the other side, Prelogar and her fellow counselors observed that 15 weeks is an arbitrary cutoff with no legal basis, and one that would just encourage states to engage in an anti-abortion arms race to zero weeks. After all, if 15 is ok, how different is that from 14? Or 13? or 12?
Whether one agrees with keeping abortion legal or not, Prelogar is quite right about this. The Court's decisions in Roe, and later in Planned Parenthood v. Casey, are based on the Fourteenth Amendment's Due Process Clause. The basic reasoning is that a woman has a right to privacy in making a medical decision, though eventually the unborn baby reaches a point of development where it has rights, too. Roe established a framework for fetal rights based on trimesters (no prohibitions are OK in the first, some are OK in the second, most are OK in the third). Casey replaced that with a standard based on fetal viability, decreeing that the line between "abortions can't be limited" and "most abortions can be prohibited" is 24 weeks. That reflects the basic scientific consensus as to the point at which a fetus is viable. And, following from that, the Court concluded that the moment a fetus becomes viable is also the moment that it begins to have rights.
So, that's where things appear to stand after oral arguments. Now we get to wait about 7 months to see what happens. We would suggest that, barring something very unexpected, there are two major questions, and one semi-major one, that remain:
- Is Gorsuch actually a swing vote? It's a pretty big deal if he is, because then the four conservatives will not be
in a position to impose their views unilaterally. And it's a pretty big deal if he isn't, because then Roberts almost
certainly won't have the votes for a "compromise" ruling.
- Can Roberts round up five votes? If the Chief Justice wins Gorsuch over to his way of thinking, he still needs three
more votes. He might plausibly get them from the liberals, who could decide that some abortion rights in places like
Mississippi are better than none. We are inclined to doubt they can be won over, however, because they surely see where
that slippery slope will lead, and they are likely to conclude that the best chance for change is if the biggest
political backlash possible is triggered. Roberts could also get the three votes from the conservatives, if at least
three-quarters of them are convinced that some additional limits on abortion rights are the best they can do right now.
However, all four members of the conservative bloc are practicing Catholics, and this is an area where many Catholics
see no room for compromise.
- Is 6-3 or 5-4 preferable to Roberts? This is less significant than the other two questions, but it's still pretty important. If the other five conservatives are determined to strike down Roe, then the Chief Justice has a tactical decision to make. He can vote with the majority, which would give him the right to write the actual decision, and to try to finesse it as much as is possible. Or, he can vote with the minority so that he and others can say: "See? The decision didn't break down entirely along partisan lines."
And now, we wait. (Z)
It's Not a Good Time to be on Team Trump
Forgive the value judgment here, but Donald Trump spent most of his life as, in effect, a petty grifter. Yes, he was/is a billionaire, at least on paper, but he basically operated on the margins of the business world, compensating for (mostly) poor business decisions with unethical behaviors that took money out of other people's pockets (not paying contractors, bankrupting casinos, etc.). And Trump tended to attract others of that ilk—a bunch of petty hoodlums of various sorts. Mind you, that's not to say everyone in Trump's orbit is sleazy and/or on the take. There's gotta be one or two honest people, right? Right?
In any event, it's possible to get away with a whole lot of petty grifting when you're not under the microscope. Trump's career is an object lesson in this. However, the moment you get elected president—even if it's basically by accident—you are instantly under the largest and most powerful microscope in the world. Washington, DC is the Big Leagues. And Trump and a lot of the people around him struggled—and still seem to be struggling—with that fact. They engaged in a lot of foolish behavior that might go unnoticed if it happened in the backrooms of Atlantic City, NJ, but that is not going to go unnoticed when you occupy the world's biggest stage. And on Wednesday alone, there were a number of developments on the legal front suggesting that members of Team Trump are getting closer and closer to having to pay the piper.
Let's start with the fellow at the top of the pyramid (scheme?). The Guardian, which is incredibly dialed-in to American politics for an outlet based in the UK, is reporting that Trump's claims that he had no role in the events that took place the afternoon of 1/6 are pure bushwah. In fact, there was a direct line from the Oval Office to the Willard Hotel and Trump was on it regularly, plotting ways that the certification of the election results could be halted. When the people working for you are doing the planning and the scheming, it gives you plausible deniability. However, when you yourself get involved in the planning and the scheming, plausible deniability goes right out the window.
Right on cue, Rep. Liz Cheney (R-WY) declared that there are no fish who are too big for the 1/6 Committee to go after, and that Trump is most certainly on the Committee's radar. She warned that if he is summoned, he better show up and he better tell the truth, or risk consequences. He's not going to show up if he's subpoenaed, of course, and he's certainly not going to tell the truth under any circumstances. So, if the Committee does decide to pursue him—and Cheney certainly seems to suggest that's going to happen—then AG Merrick Garland is going to have the mother of all decisions to make when the Committee inevitably finds Trump in contempt.
Of course, it's at least possible that the Department of Justice won't wait for the Committee's encouragement. Yesterday, the DoJ announced that it's investigating the "fundraising" done by Trump-supporting lawyer Sidney Powell. Clearly, having gone after Steve Bannon and now Powell, Team Garland is showing it's not afraid to hold the former president's acolytes accountable. It is true that the DoJ can't go after Trump unless they have a strong belief they can beat him in court. However, he's already badly exposed on several fronts. For example, 18 U.S.C. Section 241 makes it a crime for two or more persons to conspire to deprive anyone of the rights afforded to them by the Constitution. Calling up the Willard Hotel half a dozen times in an effort to invalidate 80 million votes would seem to qualify.
Powell, incidentally, wasn't the only Trumper to make the wrong kind of headlines on Wednesday. Former DoJ official Jeffrey Clark is a recipient of one of the 1/6 Committee's many subpoenas, and he decided to ignore the summons. So, yesterday, the Committee voted unanimously to hold him in contempt. They also held out a carrot, saying they might change their minds if he decides to play ball. He's apparently thinking about showing up and pleading the Fifth Amendment to everything, but as someone with a law degree, Clark must know that won't actually work, and all he'd be doing is delaying the contempt charge if he tried it. So, he might decide he has no choice but to yield.
There was also one last thing worth mentioning. Although 1/6 is on the front burner, Russiagate is still out there. And don't forget that Trump is pretty exposed there, since Mueller all but said the former president is guilty of obstruction of justice. Anyhow, an appeals court just ruled that more of the Mueller Report must be made public. Nothing in the new information is unknown to Garland and his staff, but the release could certainly have an effect on public opinion, and could bring the Russia situation back to the forefront, possibly encouraging the DoJ and/or Congress to take some sort of action. We'll see what happens, but again, you can't feel great right now if you're Trump or one of his hangers-on, and you did foolish and illegal things that could now be coming back to haunt you. (Z)
Abrams Is In...
Given how narrowly she lost the 2018 Georgia gubernatorial election; and given that she's spent the last 3+ years on activism, and registering voters, and networking; and given that she's turned down other opportunities (like running for the Senate seats now occupied by Jon Ossoff and Raphael Warnock), everyone assumed that a second gubernatorial bid was in the offing for Stacey Abrams in 2022. However, the presumed candidate remained on the bench so long that Democrats were getting nervous that she'd changed her mind. Or else that she hadn't changed her mind, but that she was waiting so long it would hurt her chances.
It turns out that they need not have worried. Just days after the blue team's anxiety went public, Abrams threw her hat into the ring. That gives the Democrats a rock star candidate who is excellent at fundraising and at grassroots organizing. If she somehow hadn't run, the alternative, whoever they might be, would have been a real step down. Like from "rock star" to "aging polka star"—that kind of step down.
The mere possibility of an Abrams run kept the Democratic field clear, and now that she's actually in, it will presumably remain so. That means she can sit back, connect with voters, and collect funds while she watches the vicious primary that's going to take place on the other side of the aisle. Gov. Brian Kemp (R-GA) wants to keep his job, but Donald Trump wants him out of office (and, ideally, drawn and quartered). The Trump faction doesn't exactly have a candidate yet, though they could line up behind Trump sycophant Vernon Jones (R) if the former president can't recruit someone more to his liking. Even if Kemp doesn't draw a serious challenger, though, it's still going to be him vs. Trump throughout the election cycle.
Meanwhile, in addition to her own political gifts, Abrams has other things working in her favor. There's the shift of Georgia in a purple direction, to start with. Also, Warnock is up for reelection next year. With Black candidates occupying the two top spots on the ticket, it should be very good for Democratic turnout. It might well be enough to overcome the effects of the various voting laws that Georgia has put in place to make it harder for poor people, Black people, and poor Black people to vote.
And we wouldn't want to get too far ahead of ourselves here, but if Abrams goes down to defeat—particularly if it's by a much larger margin than in 2018—that could backfire on the Republicans. It could be the canary in a coal mine that warns low-information Democratic voters that something is wrong, and that they need to do everything they can to get to the polls in 2024. That's many chess moves ahead, but it's worth pointing out, just as a possibility to keep in mind. (Z)
...and Baker Is Out
While Stacey Abrams' entry into the Georgia gubernatorial race was widely expected, the announcement made by Gov. Charlie Baker (R-MA) on Wednesday was a real curve ball. He's been doing everything that you would expect a person running for reelection to do, including telling the press that he doesn't have any hobbies besides politics and that his wife doesn't want him hanging around the house all the time (wink, wink). There must be something in the water up there in the Northeast, though, because Baker became the latest governor from that part of the country to all but say he's in, and then to announce he's out. That's right; once his current term is up, he's done being governor. Not only that, but Lt. Gov. Karyn Polito (R) won't run to succeed him.
Both Baker and Polito are popular, and would have been in excellent position to win if they'd run. Perhaps their sudden loss of interest in their political careers suggests it's a drag to lead during a pandemic (that's the issue they specifically mentioned during their press conference), or perhaps it suggests that it's no fun being a Republican if you're not bowing before Donald Trump. Whatever the case may be, the Republicans' hopes just took a big hit, since after Baker and Polito the GOP bench in Massachusetts is paper-thin.
Meanwhile, the job just got a lot more interesting to Democrats. The leading declared candidate, at the moment, is probably Harvard professor Danielle Allen. However, we all know that nobody has ever gone from "Harvard professor" to "successful Massachusetts politician," right? Ok, Allen is actually a pretty strong candidate, but now she is likely to find herself with heavy-duty company. Former mayor of Boston and current Secretary of Labor Marty Walsh is considering a bid. Annissa Essaibi George, who just lost the election to succeed Walsh, could run. Former representative Joe Kennedy III had passed on a run, but could certainly change his mind. Current AG Maura Healey is also a possibility. Anyhow, this race just went from "leans Republican" to, at very least, "leans Democratic," and probably more like "strongly Democratic." (Z)
McCormick Wants to Head to Washington...
What's better than one carpetbagger? Two of them, apparently. Dr. Mehmet Oz is not going to let the fact that his home base is in New Jersey stop him from launching a bid to represent Pennsylvania in the U.S. Senate. And hedge fund CEO and former Bush White House official David McCormick isn't going to let a little thing like residing in a different state stop him, either. He lives in Connecticut which, unlike Jersey, doesn't even border the Keystone State. Nonetheless, he is expected to announce a campaign in the next few weeks.
Assuming that Oz and McCormick follow through, and actually announce bids, this is going to be a very different sort of Republican primary than most these days. Oz, by virtue of his TV celebrity, has the name recognition. McCormick, by virtue of his having actual experience in government, will have the backing of the establishment. That said, neither of them is very Trumpy, and Trump is unlikely to endorse a Muslim or a person who is close with the Bushes. Does that leave a lane for a third candidate, perhaps? Carla Sands has already declared, and she was an actual member of the Trump administration, serving as his ambassador to Denmark—a reward for the $350,000 she donated to Trump super PACs and to the Trump inaugural committee. She hasn't exactly caught fire yet, but she could, particularly if Trump backs her.
Alternatively, a real fire-breathing Trumper could jump in and land the former president's endorsement. Let's see...John Cappelletti won a Heisman playing for Penn State. Is he available? And a Republican? Could be worth looking into. It's also possible that Trump stays out of this one, since he was burned once already on Sean Parnell, and since wading into hotly-contested primaries is not the best way to keep up his batting average when it comes to endorsements.
In any event, between the Oz-McCormick-possibly someone else tilt on the right, and the Rep. Conor Lamb (D-PA)-Lt. Gov. John Fetterman (D-PA) tilt on the left, anyone who sells television advertising in Pennsylvania is going to have a very good year in 2022. For those who merely watch TV, it might be time to finally pop for that Disney+ subscription so you can at least sometimes avoid the barrage. (Z)
...While Peter DeFazio Is Going to Leave
Another House Democrat, looking ahead to a rough election cycle and the strong possibility of being in the minority, has decided to call it a career. This time it is Rep. Peter DeFazio (D-OR), an outspoken progressive, who said on Tuesday that he's done after this, his 18th term. DeFazio thus becomes the 19th Democrat to pack it in this cycle. He is leaving behind a district that is actually much friendlier to a member of the party, though—OR-04 was R+1 at the last election, but on the new maps is D+9. So this seat figures to remain in Democratic hands.
DeFazio is the poster child for why Congressional term limits are a bad idea. His wheelhouse is transportation issues, an expertise he's developed over the course of his three-plus decades in the House. He serves as chair of the House Transportation Committee, plays a major role on most of the transportation subcommittees, and is respected on both sides of the aisle and by people in the private sector for his expertise, which will not be easy to replace. At 74, he might settle into a well-earned retirement, or he might have another chapter left in him, perhaps serving as an advisor to Joe Biden, or maybe dabbling in some non-profit governance. (Z)
It's a Lockout
Yesterday, Major League Baseball's collective bargaining agreement expired. It didn't sneak up on anyone; both players and ownership have been talking about Dec. 1, 2021, for the last couple of years. However, relatively little progress was made in negotiating a new agreement, and so at 12:01 a.m. this morning, the owners locked the players out. This is the first work stoppage in baseball since the 1994 strike that wiped out that year's World Series.
Why are we writing about this? After all, we're not a sports site. When, for example, the Green Bay Packers crushed the Los Angeles Rams this weekend, causing ESPN to deem the Pack the best team in football right now, we didn't write it up. This is because the Packers game, while perhaps a religious experience for some, was not political (outside of QB Aaron Rodgers' anti-vaxx foolishness). If past precedent is any indication, however, the baseball lockout will be politicized. So, readers might want to have an understanding of what's going on, should that come to pass.
First, let's talk a little bit about what's going on right now. When it comes to labor issues, there have been three major shifts in the balance of power in the last century of baseball. Up through the mid-1960s, the owners were calling all the shots. Then, from the mid-1960s through the mid-1980s, under the guidance of legendary union leader Marvin Miller, the players seized the initiative, outmaneuvering the owners at nearly every turn. Since Miller stepped down in 1985, the balance has shifted back in favor of the owners. Player salaries, while generous, haven't kept up with the dramatic increase in baseball revenues. And that's just baseball money; it doesn't include the various means that owners have found to cash in on their teams that don't have to be shared with the players, like building expensive real estate tracts around their stadiums.
Point is, the players are looking to rebalance their slice of the pie. There are also some other issues, like the rising number of teams in baseball who are no longer trying to win, since TV rights guarantee huge revenues regardless of how bad a team is. The fact that labor and management are as far apart as they have been in decades is part of the reason that little effort was made to avoid last night's lockout. Another aggravating factor is the pandemic; it was necessary to negotiate a bunch of issues in order to make last year's pandemic-shortened season viable, and those conversations did not go well, creating enmity on both sides.
So the lockout, while theoretically avoidable, was essentially inevitable. Both sides want the other one to feel some pressure, and it was the owners who made their move first, as they are allowed to do, and as circumstances dictated. The players could have made the first move, perhaps, but there's not much value in declaring a strike when nobody is actually working anyhow. It would be as if the staff of the Trump White House had called a strike. Anyhow, now that a lockout is in place, the 1,200 or so baseball players who are members of the union cannot interact with team employees—from owners all the way down to peanut vendors—at all.
And now the politics of the situation. A lot of people, even if they are baseball fans, tend to harbor some amount of resentment toward the players. Sometimes it's more than just "some" resentment, and these angry feelings are particularly common on the right. "These guys get paid millions to play a child's game" is a common talking point. It's also a silly talking point. Yes, they get paid millions (many of them), but they are the (very valuable) product that is being sold, and the alternative is that the money goes to owners who are worth billions. Even sillier is the "child's game" bit. Baseball was developed by grown men, for grown men to play. It was eventually simplified and slowed down so that children could also play it, but the sport is not inherently "a child's game."
As a consequence of this dynamic, every baseball work stoppage in the past—whether initiated by owners, like this one, or initiated by players—has been met by much kvetching from right-wing politicians. In part, this is a culture wars-type issue. In part, it's a none-too-subtle way to strike back against organized labor in a headline-generating fashion.
The owners, and the commissioner of baseball (who works for the owners and serves as their mouthpiece) know this very well. So, they invariably play the victim card in order to whip up anti-player/anti-union sentiment. The current work stoppage was less than one minute old when current commissioner Rob Manfred issued a statement reading, in part, "Despite the league's best efforts to make a deal with the Players Association, we were unable to extend our 26 year-long history of labor peace and come to an agreement with the MLBPA before the current CBA expired. Therefore, we have been forced to commence a lockout of Major League players, effective at 12:01am ET on December 2." That sound you hear is the world's smallest violin playing.
Only a few people know exactly how acrimonious the negotiations are going to be, though there's a decent chance this lockout lingers for quite a while. All past lockouts/strikes have taken place either during the baseball season or right before, and the loss of games (or potential loss of games) has generally motivated the two sides to work things out. In this case, Opening Day is 4 months away, so there's not much pressure. In particular, we doubt that anyone's going to be canceling their Christmas plans to argue about revenue sharing. So, there's likely going to be plenty of time for the Ted Cruzes and Tucker Carlsons of the world to try to squeeze some mileage out of this. (Z)
Did you catch the theme that ran through the various items? If you want to check your guess, feel free.
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