The Race to the Bottom

Being a Supreme Court justice, especially given that they no longer have the onerous duty of circuit riding, is a pretty sweet gig. You get a good salary, health insurance, a retirement package, a nice office, national stature, and a big, roomy office. Maybe also a robe allowance; we don't know. In any case, Ketanji Brown Jackson must surely be keeping her eye on the prize at the end of the race as she grits her teeth and makes her way through the grilling she's been subjected to this week, which has gone beyond tough (entirely fair), often venturing into offensive and inappropriate territory (not fair).

Yesterday may not have been officially declared "Republican showboating day," but it might as well have been, because everyone knew it was coming. And as Jackson made her way through the marathon questioning session, there were three Republican members of the Judiciary Committee who put on Olympic-level displays of obnoxiousness. So much so, we're going to award them medals:

• Bronze: Sen. Lindsey Graham (R-SC): You may not have expected to see him on the podium, since he's not running for president and Sen. Tom Cotton (R-AR) is. However, Graham provided yesterday's clearest object lesson in score-settling. Here's the key exchange:

  Graham: What faith are you, by the way?
  
  Jackson: I am Protestant, non-denominational.
  
  Graham: Could you fairly judge a Catholic?
  
  Jackson: Senator, I have a record of fairly judging everyone ...
  
  Graham: I believe you can. I'm just asking this question because ... how important is your faith to you?
  
  Jackson: Personally, my faith is very important but, as you know, there's no religious test in the Constitution under Article VI.
  
  Graham: There will be none from me.
  
  Jackson: And it's very important to set aside one's personal views about things in the role of a judge.
  
  Graham: I couldn't agree with you more and believe you can. So, on a scale of one to ten, how faithful would you say you are? I go to church probably three times a year so that speaks poorly of me. Do you attend church regularly?
  
  Jackson: I am reluctant to talk about my faith in this way just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views.

  It may seem that what Graham was doing was making sure that Jackson loves Jesus enough to satisfy him and his Republican base. But what he was really doing was subjecting Jackson to the Amy Coney Barrett treatment, as he sees it, replacing Barret's Catholicism with Jackson's Protestantism. It's worth noting that the two situations are not quite equivalent, because Protestantism is God's true religion, whereas the Catholics will burn, burn, burn. No, wait, that's not it. The situations aren't quite equivalent because Barrett's public proclamations, and her record, suggested that she might be prone to substituting "what the Bible says" for "what the Constitution says" in some of her rulings. That has not been suggested of Jackson. Indeed, until yesterday, we didn't even know what her religious background was. She could have been a member of the Seventh-Day Mariavite Jews for Satan (reformed), for all we knew.
  
  
• Why It Was Icky: As we've pointed out, this business of score-settling and grudge-bearing is not worthy of Graham's high office, and is an affront to what he's actually supposed to be doing, which is evaluating Jackson's fitness for appointment to the Supreme Court. Further, even if one believes that Amy Coney Barrett and/or Brett Kavanaugh were treated unfairly, Jackson had absolutely nothing to do with that. For a powerful white man to force a Black woman to squirm because he can, and because he knows she has no choice but to take it and smile? The optics of that particular power dynamic are not great.
  
  
• Silver: Sen. Josh Hawley (R-MO): Hawley tipped his hand before the hearings even began, and previewed his intent to grill Jackson over her allegedly permissive attitudes toward child pornography. And yesterday, he followed through, asking very specific questions about a series of cases in which Jackson played a role in sentencing the accused.
  
  
• Why It Was Icky: Josh Hawley is a Yale-trained lawyer and, by all reports, a smart guy. He knows full well that he is grossly misrepresenting the situation, and that Jackson was: (1) not permissive, (2) was operating squarely within federal sentencing guidlines, and (3) was part of a panel of judges that reached consensus on the sentences. And even if someone doesn't know the ins and outs here, is there really any chance that any federal judge is lenient on child pornographers? Whether they are being driven by their personal views, or the law, or their future political aspirations, all argue for throwing the book at some of the most hated criminals in American society.
  
  Being willfully dishonest is definitely icky. But keep in mind that this particular dishonesty is utilizing the exploitation of children to score political points. That takes the ickiness to a different level.
  
  
• Gold: Sen. Ted Cruz (R-TX): Some people say that the world's oldest profession is "farmer." Others say it is "politician." The wisenheimers say it's "prostitute." Well, the senator from Texas has definitely got two of the three covered, as he is willing to say or do whatever it takes in order to score points with the base in search of power (and, he thinks, the White House).
  
  The senator is well aware that the hot-button culture wars issue these days is Critical Race Theory. It also did not escape his attention that Jackson is Black. Consequently, he did the sort of gymnastics sometimes associated with—well, not farmers or politicians—in a desperate attempt to link CRT and KBJ. In particular, someone on his staff figured out that Jackson is on the board of trustees at Washington's Georgetown Day School. And at that school, according to the Senator, the curriculum is "filled to overflowing with critical race theory."
  
  As proof of concept, Cruz pointed out that some students at the school read Antiracist Baby, which argues that babies are either taught to be racist or antiracist. The Senator even came accompanied by visual aids (pages from the book that had been blown up). Jackson delivered a very reasonable response, pointing out that: (1) this is an unusual school, having been founded in 1945 by three Black families and three white families as an explicitly antiracist and anti-segregationist political statement, and (2) trustees have absolutely nothing to do with the curriculum, anyhow.
  
  That said, while Jackson's answer was perfectly good, we think this screen capture taken during the Senator's line of questioning really says it all:
  
  
  
  
• Why It Was Icky: Cruz is guilty of the same offenses as Graham, since he's using his position of power to make Jackson squirm over something that she is unconnected to (and that she will remain unconnected to, since it's not like the Supreme Court hears all kinds of CRT cases). Cruz is also guilty of the same offenses as Hawley, since he is also an Ivy League-educated lawyer who is smart enough to know full well how intellectually dishonest his line of questioning was.
  
  Where Cruz separates himself from the pack, and earns the gold, however, is that his line of questioning was, well, racist. The underlying message was that these Black, female judges are part of the conspiracy to make white people feel bad about themselves, and we must do what we can to stop it. If Joe Biden had nominated, say, Merrick Garland to the Supreme Court, then would Cruz have asked about CRT? The answer is "No, no, a thousand times no."
  
  Just in case there were any doubts here, the Republican Party used its Twitter account to make absolutely certain that everyone got the message:
  
  
  
  That is the kind of thing that ends up in history textbooks in 50 years, as people marvel over how over-the-top the rhetoric was. We are reminded of this handbill from the 1866 Pennsylvania U.S. Senate race:
  
  
  
  Given Cruz's aspirations, he might want to keep in mind the general lesson behind William Seward's famous observation from 1860: "No man will ever be elected president who spells 'Negro' with two g's."

These hearings are the big political news of the week, so we have to write about them, consistent with our focus. But it's hard to come up with useful things to say, given how vapid and largely devoid of substance they are. It's almost like reviewing the same movie three or four days in a row.

That said, we will share one other thought that occurs to us. Donald Trump was, and is, kind of dumb. We can say that now, right? He also has a well-deserved reputation for being mercurial and inconsistent. All of these qualities allowed him to ebb and flow with the political winds, adopting wildly different positions, sometimes multiple times in the same day. And people believed that Trump's feelings were genuine, at least in the moment, because he didn't really know enough to be aware of contradictions and inconsistencies, and because he's been changing opinions on a dime for decades.

The problem that Hawley and Cruz have is that they are much smarter than Trump and are also much more calculating. As a result, their performative Trumpism just does not come across as genuine, in contrast to the real item coming from the former president. We perceive it as painfully fake, and Trumpers are pretty good at rooting out phoniness (see Vance, J.D.), so we imagine they perceive it that way, too. This is among the reasons that we just can't see a way that Cruz and/or Hawley could ever take the Trump lane to the White House. (Z)

Braun Takes Things to Extremes

The conservative position on abortion, in terms of legal theory, is that it should be a states' rights issue. This is really the only legal theory that they have to stand on—since there is zero chance of abortion being outlawed nationwide, then all that's left is to grant (red) states the power to outlaw the procedure.

Yesterday, Sen. Mike Braun (R-IN) was on a conference call with reporters from his state, ostensibly to lament the judicial activism of Ketanji Brown Jackson. And the Senator allowed himself to become entrapped by the (absolutely legitimate) questions asked by one of those reporters. We don't love to dump long quotes on readers, but in this case you really do need to read for yourself:

Reporter: Hi, Senator. You spoke about judicial activism. If the Supreme Court strikes later this year strikes down the right to abortion, would you consider that judicial activism, legislating from the bench?

Braun: I consider it to have been judicial activism when it occurred back almost 50 years ago. So I think I think this would be bringing it back to a neutral point to where that issue should have never been federalized, way out of sync I think with the contour of America then. This puts it back to a point where, like most of these issues, where one side of the aisle wants to homogenize it federally, it's not the right way to do it.

This should be something where the expression of individual states are able to weigh in on these issues through their own legislation, through their own court systems, quit trying to put the federal government in charge of not only things like we di navigating through COVID recently, where I think that was misguided, but in general. So no, I think this takes it back to a point where it should have never gotten beyond in the first place.

Reporter: Would that same basis [apply] to something like Loving v. Virginia, the Supreme Court case that legalized interracial marriage?

Braun: When it comes to issues, you can't have it both ways. When you want that diversity to shine within our federal system, there are going to be rules, and proceedings, that are going to be out of sync with maybe what other states would do. That's the beauty of the system. And that's where the differences among points of view in our 50 states ought to express themselves. And I'm not saying that rule would apply in general, depending on the topic, but it should mostly be in general, because it's hard to have it on issues that you are just are interested in when you deny it for others with a different point of view.

Reporter: So you would be OK with the Supreme court leaving the question of interracial marriage to the states?

Braun: Yes. I think that that's something that if you're not wanting the Supreme Court to weigh in on issues like that, you're not going to be able to have your cake and eat it too. I think that's hypocritical.

Reporter: What about Griswold vs. Connecticut?

Braun: You can list a whole bunch of issues, when it comes down to whatever they are, I'm going to say that they're not all going to make you happy within a given state, but we're better off states manifest their points of view rather than homogenizing it across the country as Roe vs. Wade did.

Late in the day yesterday, presumably after a staffer or two pointed out that the optics here were not good, and that there would be a million stories headlined "Indiana Senator Opposes Interracial Marriage," Braun tried to back off and say that he misunderstood the question. But on reading his words, is that even slightly plausible? He not only gave detailed answers that addressed exactly what was asked, he also gave follow-up answers.

And, indeed, there were a million stories headlined "Indiana Senator Opposes Interracial Marriage." But that's not really the story here. On average, a 67-year-old white guy from red, red Indiana is not likely to be the most racially enlightened person on the planet, but we seriously doubt he is actually anti-miscegenation. Possible, but not too likely. If so, he's approximately one century, and possibly two, too late.

What this really shows, at the very least, is the weakness of the states' rights-based anti-abortion argument. The reason that abortion rights became a federal concern, and thus not covered by the Tenth Amendment, is that the Supreme Court determined that reproductive choice has a constitutional basis—rooted specifically in the Fourteenth Amendment right to privacy. The conservative argument is thus that the Tenth Amendment should be determinative here, not the Fourteenth. But if you go down that path, then many other cases decided on the same basis—including Loving and Griswold, among many others—must necessarily also be overturned.

And, in truth, this may not just be a demonstration of problematic legal reasoning. It could be that gutting all of these cases is what could be on the agenda if and when abortion rights are struck down. To eliminate the inconsistency, in service of the all-important project of making abortion as illegal as is possible, it's certainly possible that the red states and the five non-John Roberts conservative justices could commence with a project of unraveling all of those pesky legal precedents rooted in the Fourteenth and Fifteenth Amendments, in particular.

The story here, then, is not that a U.S. Senator has outed himself as a closet racist. It's that, when it comes to conservative legal theory, a U.S. Senator has said the quiet part out loud. (Z)

No Profile in Courage Here

Missouri Senate candidate Eric Greitens was accused of sexual assault several years ago. And this week, he was accused of domestic assault. He is damaged goods, and if he had a shred of decency, he'd end his campaign and maybe take the extra time to do some work on himself. He will not be doing that, of course.

Yesterday, Senate Minority Leader Mitch McConnell (R-KY) was asked about the situation during his weekly press conference, and he conducted a master class in noncommittal answers: "Well, look, I think all of the developments of the last 24 hours are things the people of Missouri are going to take into account both the primary and I would assume would take into account in the general." Thank goodness we cleared that up!

In contrast to, say, Sen. Mitt Romney (R-UT), McConnell is not a jellyfish who is frightened of his own shadow. He's willing to say unpopular and/or aggressive things, under the right circumstances. At the same time, the Minority Leader is always mindful, first and foremost, of his own power, and of his desire to reclaim the gavel that is currently residing in the desk of Chuck Schumer. And alienating a potential future member of the caucus, particularly when there is a "Dump McConnell" movement gaining steam among the Trumpublicans, is not something the Kentuckian wants to do.

And that, then, is the takeaway here. If Greitens was dead in the water, McConnell would have ripped him a new one yesterday. The fact that he did not do so tells us that the man who probably knows more than anyone walking the planet about the prospects of Republican Senate candidates thinks that Greitens is very much alive, despite this week's allegations. McConnell can't be happy about that, so he'll presumably try to put his thumb on the scale behind the scenes, but he's not going to come out against Greitens publicly if the status quo holds. (Z)

Trump's Candidate No Mo

Donald Trump warned that he was considering it, and now he's done it: His endorsement of the Senate campaign being waged by Rep. Mo Brooks (R-AL) is officially withdrawn. In a statement early Wednesday morning, the former president explained:

Mo Brooks of Alabama made a horrible mistake recently when he went "woke" and stated, referring to the 2020 Presidential Election Scam, "Put that behind you, put that behind you," despite the fact that the Election was rife with fraud and irregularities. If we forget, the Radical Left Democrats will continue to Cheat and Steal Elections...

When I endorsed Mo Brooks, he took a 44-point lead and was unstoppable. He then hired a new campaign staff who 'brilliantly' convinced him to 'stop talking about the 2020 Election. He listened to them. Then, according to the polls, Mo's 44-point lead totally evaporated all based on his "2020" statement made at our massive rally in Cullman, Alabama.

When I heard his statement, I said, "Mo, you just blew the Election, and there's nothing you can do about it." Very sad but, since he decided to go in another direction, so have I, and I am hereby withdrawing my Endorsement of Mo Brooks for the Senate. I don't think the great people of Alabama will disagree with me. Election Fraud must be captured and stopped, or we won't have a Country anymore. I will be making a new Endorsement in the near future!

Because when someone hears the name Mo Brooks, the first thing they think of is "woke," right? Meanwhile, either Trump wrote the statement himself (our guess), or else it was written by Someone who is Very Good at mimicking the former President's habit of Inappropriately capitalizing words for Emphasis.

Anyhow, as we wrote yesterday, we can scarcely imagine a better way for the former president to squander his remaining political capital than to do something like this. There is nobody on earth who thinks this choice is due to anything other than the fact that Trump did not want to be on the losing side of a race, especially a race in a very red state where his endorsement is supposed to matter. It would have been very embarrassing to him to lose this one, especially in a landslide.

What Trump really should have done is to avoid backing Brooks—who, as we pointed out yesterday, is a godawful candidate—in the first place. Failing that, however, Trump should have just stayed quiet and let events take their course, perhaps issuing a statement after the primary along the lines of: "Mo Brooks had some important things to say, but he lost his way, and it's understandable that Alabamians decided he wasn't the right fit for them. I look forward to campaigning for Katie Britt in the general election."

Instead, by de-endorsing in such high-profile fashion, Trump has triggered a version of the Streisand Effect, and drawn everyone's attention to the fact that he's trying to shed himself of Brooks. Now, they are permanently and visibly joined at the hip, and every story the day after the Alabama primary (May 24) is going to mention Trump's flip-floppery very prominently. We can even envision headlines like "Trump's Candidate Wins--Primarily Because He Endorsed All of Them." Not good for someone who is trying to maintain his grip on the Republican Party. (Z)

Well, He Is an Actor, After All

Pop quiz: What do musician DJ Khaled, actress Lily James, snowboarder Shaun White, skateboarder Tony Hawk, megaproducer Tyler Perry, and actor Bill Murray have in common? No, they weren't all compelled to settle sexual harassment lawsuits. That's only true of White.

The answer is that all of them are scheduled to present trophies at this weekend's Academy Awards. The ratings for that show have been on a downward trend for years, and last year they were absolutely abysmal, and so to get everyone from the kiddies to the AARP crowd watching, the producers are taking an "everything but the kitchen sink" approach to recruiting people to appear on the show. Presenters eligible for social security benefits, like Murray, but also Anthony Hopkins, John Travolta, and Kevin Costner, probably aren't going to do much to bring in a youthful demographic. And presenters who can't yet run for president, like James, but also Daniel Kaluuya, Zoë Kravitz, Naomi Scott, and Simu Liu, probably aren't going to amaze and delight the old folks. But the producers hope that, in aggregate, there will be enough there to get all demographics to tune in.

In the spirit of trying to keep things interesting, and maybe to get some bonus activism points, comedian Amy Schumer—who will serve as co-host, alongside Regina Hall and Wanda Sykes—had an idea: Why not get Ukrainian president Volodymyr Zelenskyy to make an appearance at the ceremony (remotely, of course)? Schumer's thought process is understandable; Zelenskyy is trying to rally global support for his country, and the Oscars reach a worldwide audience, so it's a match made in heaven. Oh, and it would be good for ratings, too.

It would appear that the producers of the telecast have put the kibosh on the idea, however. Maybe they don't want the logistical challenges that would be involved (especially since, if the satellite feed broke down, they'd be left high and dry). Maybe they don't feel there's enough time available in an already overstuffed show. Maybe they don't want to put Zelenskyy in an awkward position by asking him. After all, it's true he can use some free publicity, but what exactly is he supposed to say at an Oscars ceremony? "People of the world, we Ukrainians need your help as we defend ourselves against brutal Russian attacks... and now, the nominees for Best Animated Short Film are..."?

That said, it's at least possible that this is going to happen, and that the kibosh is really a smoke screen so that a Zelenskyy appearance would be a surprise and would create some buzz the next day. Not likely, but far from impossible. Anyhow, we mention it as something to keep an eye out for, just in case. (Z)

Hey, Trump Won One!

As long as we're on the subject of former television stars turned politicians, Donald Trump—who has been on quite the losing streak on the legal front—finally won in court. And it was a case very close to his heart. Well, close to some portion of his anatomy, at least. Specifically, it is the defamation case filed by porn star and former Trump paramour Stormy Daniels. She lost her appeal of a lower court decision, and so is now definitely on the hook for $300,000 in attorneys' fees and other expenses, payable to the former president.

Of course, Trump took the opportunity to do several victory laps, which is no small feat for someone who eats that many Big Macs. He bragged about winning, of course, and also did some of his usual persecution-complex-type whining about how he was only targeted because he's Donald Trump. He also predicted that "the fake news" would not report on his win, which shows how little he actually understands, because stories involving presidents and porn stars are the gold standard for clickbait. You can't even imagine what would happen if Joe Biden was to be seen in public with Nina Hartley and Ron Jeremy. As to Daniels, since she has already declared that she "won't pay a penny" to Trump, the story isn't over yet, and will linger on, to generate even more page views and clickthroughs. (Z)

The fun stuff is the last thing we do, and thus the first to go when there are time issues. We haven't forgotten. Come back tomorrow and you'll see.

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