The National M&M Debate Is No Longer about Spokescandies

On Monday, we had a rundown of the weekend's developments on the abortion front, as a Texas judge tried to outlaw Mifepristone while a Washington judge insisted it was still legal (in 17 blue states and D.C., at least). That news was still pretty fresh on Monday, and law (particularly this area of the law) is not our specialty. Further, there have been new developments this week. So, it is time to revisit this issue, aided by some readers whose expertise outstrips our own.

First up, the new developments. On Wednesday, we noted that Rep. Nancy Mace (R-SC), who is most certainly a loyal Republican, and who represents a solid red district, was on TV badmouthing the ruling from Texas Judge Matthew Kacsmaryk, suggesting that people should just ignore it. It's very unusual for a politician to jump the gun like that, particularly when they are taking a position that seems to go against their party's orthodoxy. We interpreted the fact that Mace was trying to get out ahead of the story as evidence that the Kacsmaryk decision was very bad news for Republicans, politically.

Since then, there has been a bit of polling, and it would seem that we (and Mace) were right. For example, a poll from IPSOS reports that 82% of Democrats and 53% of Republicans oppose Kacsmaryk's ruling. The same poll finds that 56% of Americans think the decision was politically motivated, while only 20% think it wasn't. Meanwhile, a new Pew poll says that roughly two-thirds of Americans want abortion pills to remain legal in their state, including 73% of Democrats and 35% of Republicans.

Mace isn't the only Republican politician from South Carolina who is clearly frightened by these numbers. Senator, and would-be president Tim Scott is scared, too, although he showed it in a different way. Reader M.B. in Menlo Park gave us the heads up about video of the Senator answering a question triggered by the mifepristone ruling, namely "Would you support a federal ban on abortions?" Scott's answer brings to mind a deer in the headlights. Here's a transcription:

I would simply say that the fact of the matter is, when you look at the issue of abortion, one of the challenges that we have, we continue to go through the most restrictive conversations without broadening the scope and taking a look at the fact that... I'm 100 percent pro-life. I never walk away from that. But the truth of the matter is that when you look at the issues on abortion, I start with the very important conversation I had in a banking hearing where I was sitting in my office and listening to Janet Yellen, the Secretary of the Treasury, talk about an increase in the labor force participation rate for African-American women who are in poverty by having abortions.

I think we're just having the wrong conversation. I ran down to the banking hearing to see if I heard her right. Are you actually saying that a mom like mine should have an abortion so that we increase the labor force participation rate? That just seems ridiculous to me. And so I'm going to continue to have a serious conversation about the issues that affect the American people. I want to start by pointing out the absolute hypocrisy of the left on the most one of the more important issues.

If there is an answer to the question, we don't see it. And if a fellow like Scott, who surely knows that questions like this are coming, has not been able to develop a decent answer in the week since the Kacsmaryk decision (and, for that matter, the 9 months since the Dobbs decision), then is he ever going to be able to develop a decent answer?

And speaking of Kacsmaryk, the (very conservative) Fifth Circuit has already weighed in and decreed that while mifepristone is not banned nationwide for now, the rest of the ruling is sound, and so its use must be restricted. That decision has already been appealed to the Supreme Court. Meanwhile, the Washington judge, Thomas Rice, has also spoken up again, and said that his ruling is definitely still in force in the 17 blue states and D.C., no matter what the Fifth Circuit says. So, the situation continues to be something less than crystal clear.

In view of the fact that this is well out of our wheelhouse, we've asked a reader who is both a lawyer and an expert in abortion-related legislation and jurisprudence, to comment. And so, we yield the (metaphorical) floor to A.R. in Los Angeles:

To add to (V)'s item about the two decisions regarding mifepristone, it's important to amplify (V)'s correct conclusion that the danger here is the complete disregard of the agency's expertise, regardless of the subject matter. First, Judge Kacsmaryk completely veered way out of his lane. It may seem that federal courts have unlimited discretion to decide cases based on their own personal predilections, but that is far from the case. There are very concrete guardrails and rules of review that these courts must follow—and that the Washington court was very careful to follow. In the Washington opinion, it was clear that, whatever Judge Rice's personal politics or feelings about the subject (which he, quite responsibly, did not bring into it), his decision was based on the law and the facts before him and narrowly tailored to only maintain the status quo.

The plaintiffs in each case are essentially posing the same question but from opposite positions: Is mifepristone safe and effective? But the Courts don't get to answer that question, per se. All they can do is see if the FDA, when it was examining that question, followed the required protocols and acted within its authority. When it comes to reviewing an agency's determination under the Administrative Procedures Act (APA), which governs federal agencies' procedures, the standard of review is commonly known as "deference" to the agency. Decisions, like the FDA's decision to approve mifepristone back in 2000, can only be overturned if they are "arbitrary and capricious" or outside of their statutory authority or otherwise against the law. Moreover, the review is even more deferential with respect to "scientific determinations within its area of expertise." (See Rice's opinion, p. 9). But Kacsmaryk decided to pull a Prince Humperdinck and skip to the end and ignore the constraints on his authority to achieve the desired outcome. But Kacsmaryk, like any federal judge, cannot simply substitute his own beliefs for the scientific conclusions of the FDA. As (V) suggests, that would open the floodgates to all kinds of mischief for any other medication, no matter how long ago it was approved. It's not the first time a federal judge has gone rogue and it won't be the last. Regardless of the charged political atmosphere, even the Fifth Circuit should recognize that the Court's ruling is itself arbitrary and capricious for failing to follow basic standards of review when it comes to scientific agency determinations.

Sadly, the ruling from the 5th Circuit late Wednesday is no less wacky (to use a technical term). The two judges in the majority, both appointed by Donald Trump, not surprisingly (hmm, I'm beginning to think that competency and some knowledge of the law was not a prerequisite for Trump appointees) modified Kacsmaryk's order to say that any action taken by the FDA after 2016 with respect to mifepristone is stayed but that the original approval granted in 2000 is still in place. Their "reasoning" is that a stay is an "extraordinary remedy" (ignoring the extraordinary action of the district judge) and that the anecdotal examples of the plaintiffs (as well as cherry-picked examples like the warning labels on Mifeprex) trump the studies and statistics supporting the FDA's subsequent actions and mean that those actions should be enjoined. As a practical matter, what this means is that the brand name drug Mifeprex approved in 2000 is still available but the generic drug, Gen Bio Pro, which was approved in 2019, is likely now "unapproved"—for completely arbitrary reasons. Because of this, the DOJ just announced that they'll seek emergency relief in the U.S. Supreme Court since this represents an unprecedented overreach on the part of the courts to substitute their personal preferences for evidence-based and scientific approval processes at the FDA. Incidentally, the dissenting judge of the 3-judge panel was appointed by George W. Bush. She would have (correctly) stayed the entirety of Kacsmaryk's order.

Meanwhile, in the part of the judiciary that still believes in the rule of law, the Washington judge followed the requirements of deference and issued a very narrow ruling maintaining the status quo and FDA's current approval conditions of mifepristone as of January 2023, which denied the plaintiffs the relief they were seeking (which was to lift all restrictions on mifepristone). And in contrast to the Texas ruling, his ruling only applies to the states that brought the suit—it's not a nationwide injunction. District court judges are admonished to issue the most narrow ruling possible—nationwide injunctions are the exception, not the rule, especially in the Ninth Circuit. And needless to say, that opinion contains none of the inflammatory language that the Texas decision is rife with. The FDA has asked the Washington court for clarification of its ruling, and just today, the court modified its order to say that, while it still only applies to the 18 states who are parties to the case, the FDA can't take any action to alter mifepristone's availability "irrespective of the Northern District of Texas Court ruling or the Fifth Circuit's anticipated ruling."

The other thing to note is that, as epidemiologist Katelyn Jetelina points out in her excellent public health newsletter, Kacsmaryk didn't actually order the FDA to do anything. So, the FDA could, in its "enforcement discretion", elect not to enforce the Texas decision with respect to medications under its purview, a power the Supreme Court has recognized since 1982. This is permissible since the order did not require any particular action, so it would not be considered ignoring the Court's order. And given the contradictory opinion out of the Washington court, that action would seem to have even more cover. But clinics in states where the AG is hostile to abortion rights have to tread very carefully to avoid issues under state law.

And finally, with respect to a misoprostol-only regimen, while it may be slightly less effective if the dosage is wrong, miso-only has been used safely and effectively in Europe and around the world for decades. The downside is that one can't anticipate as well when the cramping or bleeding will start and it's generally more painful. So particularly for those women who have to travel out of state, it's considerably more burdensome. For this reason, mifepristone remains the gold standard and it's shameful that politicians are making healthcare less optimal, but misoprostol is a safe and effective alternative.

Thanks, A.R.! And, as long as we're at it, we got some comments from readers that help to round out/clean up our items, and that we think more sense to run right here, as opposed to waiting until Sunday:

M.S. in Parma, OH, writes: In your item titled "Courts Give Opposing Rulings on Mifepristone," you wrote: "Friday was an interesting day on the abortion front, and a vivid demonstration that two judges presented with the same facts and the same law can come to diametrically opposed decisions (presumably based largely on their personal politics)."

The parenthetical furthers the unfortunate trope that all judges are motivated by politics rather than the law. The rest of your post on the rulings correctly analyzed the Kacsmaryk ruling and showed some of its many flaws. It is absolutely the result of the judge's "personal politics." You failed to note, however, that Judge Rice's ruling was correct based on all applicable legal precedent. In other words, it wasn't based on his personal politics.

These cases are an illustration of the fact that for decades the Federalist Society and the Republican Party have attempted to stack the federal courts with judges who will allow their "their personal politics" to dictate their decisions. Unfortunately, Donald Trump turned the nomination process over to the Federalist Society. Not all judges he nominated were extremist ideologues, but some were. Kacsmaryk is an example.

Although Democratic presidents have appointed mostly judges with Democratic sympathies, they have almost always tried to put qualified judges on the bench, not attempted to nominate judges who will rule in favor of any litigant espousing liberal causes. And there is no Democratic version of the Federalist Society.

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E.B. in Seattle, WA, writes: While I appreciate your coverage of the mifepristone legal issue, I think that you missed the boat in a couple of respects, mainly in the coverage of Judge Rice's opinion issued Friday:

• While Rice did get his J.D. from Gonzaga, a Catholic university, it does not at all follow that Rice is probably Catholic. Rice is from Spokane in Eastern Washington, where Gonzaga is located. Gonzaga is one of three law schools in Washington; the other two are 250 miles away in Seattle. Furthermore, only about 40% of Gonzaga's students are Catholic.
  
  
• There was a case already pending in front of Rice, where the 17 states plus D.C. are suing for expanded access to mifepristone, namely demanding that the FDA remove barriers to wider use of mifepristone. The FDA put mifepristone in the same category as fentanyl despite it being safer than Tylenol. The 17 states plus D.C. are simply saying that is unreasonable given its history of safe use.
  
  
• Most importantly, you state in your opening sentence that the two judges' ruling presumably come from their own personal preferences. While Kacsmaryk's ruling is clearly based on personal belief rather than law, Rice deserves far more benefit of the doubt. His ruling could very reasonably be based on evidence and law.

There is certainly an interesting issue of timing. But there's also no way that Rice did not expect that the Kacsmaryk ruling was coming and that it could have been exactly what was released. Rice could have easily written the ruling a week ago and left it in his desk drawer until it was needed.

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S.G. in Newark, NJ, writes: This week's posts included two pretty strong expressions of outrage against legal rules that resulted in or allowed undesirable outcomes. The outrage is understandable, but caution is called for. It's always worth considering that rules we sometimes dislike may lead to results we like, and vice-versa.

On Thursday, (V) complained about The Former Guy's lawsuit against The Former Fixer. Noting that the suit seems like nothing more than an exercise in harassment and intimidation, (V) thought it a "clear case" where the European rule—loser pays winner's attorneys' fees—is better than the American rule in which parties generally pay their own fees no matter who wins. It's true, that rule likely discourages parties from bringing lawsuits they know to be frivolous. But it may also discourage parties from bringing meritorious lawsuits for fear that a quirky loss would cause a crippling judgment for a well-heeled defendant's lawyer's gold-plated bills; from bringing possibly-meritorious-but-uncertain lawsuits; or from bringing long-shot lawsuits intended to change settled law, like, say, Miranda v. Arizona, Gideon v. Wainwright, Roe v. Wade, or Brown v. Board of Education. As TFG himself has amply demonstrated, American courts have other mechanisms for dealing with frivolous lawsuits, including sanctions on the attorneys involved which may, when appropriate, include fee-shifting.

On Monday, (V) let fly at Judge Kacsmaryk, directing his outrage at the institution of judicial review: "Judicial review isn't a power the Constitution specifically grants to even the Supreme Court, let alone to all 670 district judges." And if the Supreme Court takes the case and sustains Kacsmaryk, "they will in fact be saying that the decision to allow or prohibit [mifepristone] is not up to the democratic process. It is up to one unelected activist judge."

Whoa, Nellie! Certainly, judicial review of agency action is anti-majoritarian. That's why it's there! It's designed to ensure that "because we got elected and therefore we can" does not trump the rule of law. Judicial review of agency action is why TFG's Gang That Couldn't Govern went on such a losing streak whenever they tried to ignore the laws that were, you know, on the books. Judicial review ended the "don't say abortion" gag rule. Judicial review has protected an awful lot of the environment from ill-conceived and politically-motivated projects. Remember that for much of the 1970s and 1980s and even into the 1990s the "stop judicial activism" shoe was firmly on the right-hand foot (which makes for such delicious irony in the administrative law opinions of today's Supreme Court).

We have debated, can debate, and will ever debate how to find the right balance of policy-making power among the legislative, executive, and judicial branches. But it's too simplistic to suggest that judges should butt out because decisions like approving a drug should be "up to the democratic process." First of all, I don't want those decisions to be made by popular vote, thank you very much; for all I know, if it had been put to a vote the COVID-19 vaccine would still be on the shelf and ivermectin would be an approved treatment for the disease. I want those decisions made by experts applying judgment and standards that a duly-enacted statute authorizes them to apply. But second of all, I also want a judicial check if those "experts," accountable to political appointees, make decisions that are arbitrary and contrary to all reason, or for made-up reasons, like when (oversimplifying) the Reagan Administration decided airbags wouldn't make cars safer or the Trump Administration lied about why it wanted the Census Bureau to ask about citizenship.

And if we need any reminder about the importance of that check, consider that the Israeli populace is protesting to protect its democracy by maintaining the power of Israel's courts to rein in the actions of the elected government. As (Z) observed, "it would be bad if the U.S. Congress was empowered to unilaterally set aside court decisions." It would be just as bad if the President were so empowered, or if we didn't have judicial review at all. The problem isn't the institution of judicial review; it's the unprincipled use of that power.

I concede that it can be hard to find a principled definition of what unprincipled looks like. Though some recent court decisions really do tempt the response, "I know it when I see it."

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N.G. in San Jose, CA, writes: You wrote: "It would be ironic if the main effect of Kacsmaryk's ruling were to cause women seeking an abortion to end up using a drug that was less effective and had more complications than the preferred one."

I have to point out that the anti-abortion extremists would prefer that abortion be less effective, have more complications in order to punish women for getting pregnant and for not wanting to carry through with the pregnancy. They want abortion to be more difficult in all ways, also more painful so they can teach those uppity women a lesson and to scare them straight.

How can judges who are biased by their religious views be fair? If we were a single-religion theocracy much like Iran, then maybe it wouldn't matter. However, the United States has evolved beyond the Puritan religion, welcoming people with all sorts of faiths. Also, the United States was a refuge for those fleeing religious persecution. More and more Americans are waking up to the fact that we cannot be a multi-religious, multi-ethnic, multi-cultural nation and democracy when there are Christian extremists who want to pack the courts and legislatures with their ideological allies. It is incompatible with democracy.

Again, thanks all!

Finally, keeping in mind that we are teachers first and foremost, we know there are readers who would like to better understand the anti-abortion side of this issue. Back when the Dobbs ruling came down, we ran some comments from M.E. in Roanoke, who also got input from his wife, who is also M.E. in Roanoke. They are both anti-abortion. If readers would like to ask questions of the M.E.s, on the developments of the last 6-12 months, we'll run some of those questions and answers next week. It might also be useful to hear from a couple other anti-abortion readers, if any are willing to answer some questions. (Z)

The End of the Line for Feinstein?

At this point, Sen. Dianne Feinstein's (D-CA) cognitive issues are well known. Whether they are debilitating or not depends on exactly who you talk to, though there have now been a number of public misstatements and missteps that suggest "she's no longer up to the job" is likely the correct assessment. Now, on top of this, she's dealing with shingles (and the aftereffects of the disease). Several weeks ago, she said she expected to be back in Washington sometime in early April. Now, however, she is making long-term plans to work from her home in California. And some people in her inner circle wonder if she'll ever be able to return to the Capitol.

Feinstein's absence brings up two obvious problems for the Democrats. One of those is that one less Democratic vote means that Senate Majority Leader Chuck Schumer (D-NY) has virtually no margin for error on floor votes. The second, and very possibly more momentous, problem is that Feinstein is a member of the Senate Judiciary Committee. Without her vote, Republican members of the committee, assuming they remain unified, can block Joe Biden's judicial nominees.

In view of all of this, Schumer and Feinstein have come up with a workaround. What they want to do is seat a "temporary" Democratic member of the Judiciary Committee, until such time as Feinstein is able to return to Washington and resume her duties. Schumer has completed the necessary paperwork, and could bring the matter up for a vote at any time.

That, however, may be the rub. The committee members are set as part of the organizing resolution that is adopted at the start of each session of the U.S. Senate. That resolution is filibusterable, but it does not often happen, since a minority party that filibustered an organizing resolution would also be blocking their own committee assignments and their own party leadership. A change to the resolution is also filibusterable, and when the only question is "Shall we allow [DEMOCRATIC SENATOR X] to replace Dianne Feinstein on the Judiciary Committee for some indeterminate length of time?" then there is considerably less motivation for the Republican minority to play along.

What that means is that, at least at the moment, the ball is in the Republicans' court. Needless to say, they don't much want to facilitate the approval of a bunch of Democratic-appointed judges. On the other hand, there are undoubtedly some Republican members who regard Feinstein as a good friend and/or colleague, and 10 of them might not want to create a situation in which the Senator could be forced to resign, rather than concluding her career on her own terms. Or, if they are thinking in a more realpolitik fashion, if Feinstein feels compelled to resign, then the Democrats will get a new senator from California who will be present for floor votes and who will be able, per Senate rules, to automatically replace Feinstein on the Judiciary Committee. On the other than, if the Republicans play nice and let [DEMOCRATIC SENATOR X] sit on the Committee while Feinstein retains her seat, then at least the GOP makes it harder for the Democrats to prevail on floor votes.

In addition, while there wouldn't be much cost to the Republicans in blocking a temporary Judiciary Committee member, there also wouldn't be a lot of benefit. The Democrats are playing nice right now, but they are supremely unlikely to stand idly by and give up nearly 2 years' worth of judge-confirming time. And that brings us to the next question, which is "What will the Democrats do if the Republicans don't agree to the proposed arrangement?" There are a handful of options that present themselves:

1. Persuade Feinstein to Resign: This is the most likely outcome. It is entirely understandable that Feinstein is trying to hold on to the bitter end, because once her career in the Senate ends, she goes home to an empty home (her husband died last year) and she's probably not in good enough physical or cognitive condition to do the things that a politician usually does after leaving office, like teach at a university or write books or appear on cable news as a pundit. Truth be told, our guess is that Feinstein would like to die with her boots on, as it were, and to spend zero days as "former Senator Feinstein."
   
   That said, the Senator is a team player, and she's not likely to pull a variant on the RBG maneuver, allowing the Republicans to claim more control of the judiciary than is their due because a Democrat refused to throw in the towel when circumstances called for it. Some Democrats, like Rep. Ro Khanna (D-CA), are calling openly for Feinstein to resign NOW. Khanna should probably shut his yapper, since Feinstein has earned the right to decide on her own, and since turning this into a pi**ing contest could cause her to dig in her heels. If it becomes absolutely essential for Feinstein to resign, and she's not accepting that reality, Schumer will fly to California for a quiet, private conversation with the Senator. He will not shame Feinstein in public. There may be a lesson in that for an upwardly aspirational politician like Khanna.
   
   
2. Change the Rules: This is the other plausible outcome. The "nuclear option" that will presumably be used to kill the filibuster, whenever that day arrives, can certainly be used to resolve this situation. For example, if the Republicans tried to filibuster a temporary Feinstein replacement, Sen. Bernie Sanders (I-VT) could raise a point of order that, say, temporary committee assignments are not filibusterable. If a majority agrees (and even without Feinstein, the Democrats have 50 votes), then the rules would be changed, just like that. If Schumer doesn't want to go for something quite that assertive, for fear it will come back to bite the Democrats in the rear the next time the Republicans control the Senate, he could go for something more limited, like "members with doctor-verified health concerns may cast votes remotely" or "members with doctor-verified health concerns may appoint a colleague to vote for them by proxy."
   
   
3. Find One Friendly Republican: This is the way it would have been done 20 or 30 years ago. If the Democrats can't find 10 Republicans to break a filibuster, then they could try to find one Republican on the Senate Judiciary Committee who would be willing to vote "present" for as long as Feinstein is absent. That would give the Democrats a de facto majority again.
   
   The obvious target here is actually Sen. Lindsey Graham (R-SC). He is friends with Feinstein, and has served with her on the Judiciary Committee for many years. He is also on the record as saying that presidents should be allowed to seat their nominees, barring some obvious problem with the candidate. And while Graham is weaselly on many things, he's actually backed up this position with his votes in the past.
   
   
4. Give 'em the Byrd: During the various votes over Obamacare, the Democrats needed the "yea" votes of Robert Byrd, who was then 92 (not far from Feinstein's 89 years of age), and who was in poor health. So, whenever a key moment arrived, Byrd would be ferried from his D.C. residence to the Capitol, would be wheeled into the Senate chamber in a wheelchair, would cast his vote, and then would immediately be taken home. If it comes to it, Feinstein could set up residence in, say, the Willard Hotel (a little over a mile from the Capitol), and could be brought over to the Senate chamber by ambulance, limousine, rickshaw or Uber whenever a vote is taken.
   
   
5. Expel Feinstein: This is supremely unlikely, but we're a full-service website, so we'll cover it anyhow. It is at least possible, if Feinstein digs in, to expel her from the Senate, which would obviously take the decision to resign out of her hands.
   
   Now let us explain why it is supremely unlikely. First, there is zero precedent for expelling a member due to age or infirmity. If so, Strom Thurmond would have been expelled probably a decade before he left his seat of his own volition. Second, it would be a very nasty way to deal with a distinguished, long-serving member of one's political party. It's hard to imagine 48 Democrats and 3 independents would sign up for it. Third, even if the Democrats were up for it, it takes a two-thirds vote to expel, so 15 Republicans would have to sign up as well. We can't really see a situation where Chuck Schumer couldn't find 10 Republicans to break a filibuster of the "temporary committee member" resolution, but could find 15 Republicans who would vote to expel. After all, getting rid of Feinstein does not offer even a slight glimmer of hope that she would be replaced by a non-Democrat.

What Schumer does, or doesn't do, in the next week should be instructive. Feinstein really should resign, for the various reasons outlined above, and even she is likely aware of it. But nobody wants to leave town with, in effect, their tail between their legs. Look how embarrassing that was for Donald Trump, for example.

If Schumer can arrange for a month or so with zero "Feinstein must go!" talk, then she would be able to step down without it looking like she was forced out. That would obviously be a considerably more dignified way to end things. So, if the Majority Leader does not bring the resolution up for a vote, and if Democrats like Khanna all of a sudden seem to have forgotten about this whole issue, then that's a pretty good sign they are going to give the Senator some space to go out on top. Alternatively, if Schumer brings the resolution to the floor, then it will be clear that Feinstein plans to leave office only when her term expires or when she does. At that point, things could get hairy, but again, there is zero chance that the Democrats don't find a way to keep seating judges. The only question is exactly how many eggs they have to break in order to keep the process going. (Z)

ProPublica Has Found More Dirt on Clarence Thomas

Associate Justice of the Supreme Court Clarence Thomas may just be able to get away with all the vacations and other perks that Harlan Crow bestowed upon him. He's claiming that he just didn't know that it was against the rules to take half-million-dollar vacations and then fail to report that fact. Because "the rules" were pretty vague (until recently), and because there are very few ways in which SCOTUS justices can be held accountable for their misdeeds, his plan to muddy the waters until this all blows over is certainly viable.

Yesterday, however, the plot thickened. The folks at ProPublica are on a mission, it would seem, and now they've found something even more damning. As it turns out, Thomas sold several houses to Crow and did not report those transactions. If that were not enough, Crow spent a fair bit of money fixing up the houses and paying their property taxes. Eventually, the billionaire sold two of the three properties, but he continues to hold the title and to pay property taxes on the third, which got the bulk of the renovations. Oh, and there's someone living in that house, apparently rent-free. That would be Leola Williams, who is the Justice's elderly mother.

Thomas' argument, when it comes to the vacations, is that they were hospitality extended to him and his wife by a close family friend. Again, the law on that point is a little bit ambiguous. On the other hand, 5 U.S. Code 13104 is very clear that federal officials must report "any purchase, sale or exchange during the preceding calendar year which exceeds $1,000," with exceptions only for: (1) property that serves as the person's primary residence, and (2) stocks, bonds and other securities. The properties sold for $133,363, and Thomas was a 1/3 owner, so he got $44,454. That's way more than $1,000, and Thomas did not report it. And then on top of that is the apparent free lodging given to Thomas' mother.

In short, the Justice has clearly broken the law here. Will there be any consequences for him? Probably not, since he has no shame, and since Republicans in the Senate would keep Charles Manson in that seat if he was a reliable conservative vote. But this could give some momentum to (mostly) Democratic efforts to adopt a more substantive code of ethics for Supreme Court justices, one with actual teeth when it comes to miscreants. And beyond that, who knows what other skeletons ProPublica will discover in Thomas' closet? (Z)

The Honeymoon Is Over?

Thanks primarily to Franklin D. Roosevelt, the first 100 days of a presidential or congressional term have a certain mystical quality. The folks at The Hill have decided that Speaker Kevin McCarthy (R-CA) has reached the 100-day mark. And their assessment, per the headline of the piece meant to serve as capstone to a series on the subject: 100 days in power: House GOP honeymoon may be over.

We must concede, we were a bit gobsmacked when we saw this headline. To start, we've only reached the 100-day mark if we count the start of the Congressional term. But of course, McCarthy did not gain the speakership for the better part of 5 days. So if we were doing the math, we'd say 100 days arrives on Tuesday of next week. But The Hill didn't ask us.

The real gobsmacker for us, however, is the use of the word "honeymoon." We struggle to think of a House majority that has achieved less in its first 100 days than this one has. In part, that's because the other party controls the Senate and the White House. In part, that's because the House Republican Caucus has a very thin majority and is heavily divided. When we think of McCarthy's first 100 days, we think of: (1) the weeklong "who will be the Speaker?" soap opera, (2) the sham committees being run by the increasingly desperate Jim Jordan (R-OH) and (3) the getting-uglier-by-the-day argument with the White House over the debt limit.

So, what accomplishments does The Hill point to in order to justify the "honeymoon" characterization? Let's give it to you in the reporters' words. After noting that the debate over the debt limit is going to be a "challenge," they write:

The coming fiscal debates over must-pass legislation will differ from those that defined the first three months of the year, when McCarthy's new GOP majority focused largely on messaging bills designed to enliven the party base and, at times, highlight Democratic divisions on hot-button issues like crime and immigration.

The high-water mark of that strategy was the proposal to repeal the D.C. crime bill, which Biden signed into law after initially signaling his opposition—a reversal that infuriated Democrats who voted 'no' and felt left out to dry.

McCarthy also found some early victories on foreign policy, winning high marks for launching a bipartisan select committee to confront China's global influence and staging a well-received meeting with Taiwan's president last week in California that even got praise from former Speaker Nancy Pelosi.

When it comes to this "report card," we have four comments:

1. Nobody gives a crap about messaging bills that never even came up for a vote in the Senate, especially when those messaging bills came up more than 18 months before the next general election.
   
   
2. The D.C. crime bill was a shrewd strategic maneuver, and we gave McCarthy credit at the time, noting that if he could find other issues where Republicans are in agreement but Democrats are divided, he might score some more victories. We also wrote that could not imagine what those other issues might be, and it does not appear the Speaker has found any of them since then. Further, "we told D.C. they aren't allowed to govern themselves" is not exactly something you can run for reelection on.
   
   
3. Congress rarely has much influence over foreign policy, no matter how much grandstanding it might do. Get back to us when McCarthy's China committee actually has a tangible accomplishment.
   
   
4. Nobody gives a crap about meetings with foreign leaders, unless those meetings are scandalous for some reason. Can you name three foreign leaders that Nancy Pelosi (D-CA) traveled abroad to meet with while she was speaker? We can't, and we write about politics every day. There's Volodymyr Zelenskyy, and... that's about all we've got.

In short, having read The Hill's explanation for the headline, we are still unconvinced that the first 100 days of McCarthy's tenure have been a success, regardless of how generously you define that term.

How do we come to such a different conclusion than the folks at The Hill? One possibility is that we are coming from different vantage points; for example, they are in Washington and are hearing scuttlebutt and we are not. A second possibility is that McCarthy's clumsy performance during the Speakership elections so badly damaged our opinion of him that we're not giving him a fair shake. And a third possibility is that they needed a piece to conclude the "100 Days" series they decided to write, and so started with a conclusion and worked backwards from that. If so, Sherlock Holmes definitely would not approve.

Anyhow, it's certainly possible that we're wrong, and that McCarthy & Co. are off to a stellar start. We are not frightened by opinions that differ from ours, so we pass this one along for readers' consideration. (Z)

This Week in Schadenfreude: Paging Barbara Streisand

For this item, let's talk about a story brought to our attention by reader S.K. in Los Angeles. It is no secret that we are not fans of the maneuvering undertaken by Tennessee Republican legislators against their Democratic colleagues. And so, we see a lot of schadenfreude in the various ways that the fiasco is now blowing up the the Republicans' face.

The two Black men who were expelled from the legislature, Justin Jones and Justin Pearson, are both officially back on the job. Jones was chosen as his own replacement over the weekend and was sworn back in on Monday. Pearson was also chosen as his own replacement, on Wednesday in his case, and was sworn back in yesterday. That means that, between the two legislators, they missed a total of 3 days of work.

One consequence of this foolishness has been to leave Tennessee Republicans with egg on their faces. A second consequence has been to focus a magnifying glass on specific Republican members, like House Speaker Cameron Sexton, likely to those Republicans' detriment. And a third consequence has to make rock stars out of the two Justins. Two weeks ago, nobody outside Tennessee had ever heard of them, and even most people in the state would have had no idea who they were. Now, they are as famous as, say, state Sen. Mallory McMorrow (D) in Michigan, who was also the victim of GOP nastiness, and whose response to that nastiness made her a Democratic favorite and a likely candidate for the governor's mansion once Gov. Gretchen Whitmer's (D-MI) term is up.

The Justins plan to make full use of their fame. The reason they were expelled in the first place was their vocal support for gun-control legislation. And now that they are back in the job, they plan to introduce a bill on the subject. And then another and another. By the rules of the state legislature, new members (and that includes the "newly" elected Justins) can only introduce 15 bills per term. Jones has already made clear he's going to use up his entire allotment, and every one of those will be gun-control bills. And Pearson has hinted that he'll follow suit. If so, that would be 30 gun-control bills in the next couple of months.

It is extremely improbable that a Southern state like Tennessee will actually adopt any new gun-control measures. But you never know; don't forget that the most outspoken gun-control president of the last half century was the very conservative Ronald Reagan. Meanwhile, who knows where this might lead for the Justins, as they are now very probably the most famous Democrats in the state. Whatever the Republicans were trying to achieve by expelling them, we can't think of a much better example of the Streisand Effect than what's happened since. (Z)

This Week in Freudenfreude: A Diamond Anniversary

That headline would be even better if we'd been doing this feature in 2022, because then it would be 75 years instead of 76. It still works, though, for what turns out to be our second baseball-themed freudenfreude in 3 weeks.

Tomorrow, Major League Baseball will commemorate the anniversary of the day that Jackie Robinson integrated the sport (April 15, 1947). There will be some speeches and some other activities like that. Announcers will talk about Robinson during television broadcasts. All players will be wearing Robinson's #42 on their uniforms. For those who do not follow baseball, Jackie Robinson Day is the only time active players can do that, as the number has been retired throughout the sport, and the last active player who had a waiver (the Yankees' Mariano Rivera) is now retired.

Often, when the worlds of politics and sports intersect, many sports fans become irritated and insist that sports are meant to be an escape from the real world and that sports and politics don't mix. It is most common to see and hear right-leaning folks say this, though you occasionally hear it from some lefties, too. Whoever says it, it's nonsense. While sports may be an escape sometimes, the overlap between the worlds of sports and politics is frequent and significant. Even casual sports fans (and, probably, non-fans) can think of dozens of examples readily, from Jesse Owens and the Nazis to Muhammad Ali and Vietnam to Billie Jean King and the "Battle of the Sexes" to Colin Kaepernick and the National Anthem.

This is hardly a coincidence. Athletes, and their teams, get a lot of attention. It's far more plausible to be the change you want to see if you have a platform that gives you access to millions of people. Further, winning engenders a lot of, for lack of a better term, forgiveness from skeptical or hostile fans. There is a reason the Brooklyn Dodgers were able to put Robinson's name on a lineup card close to a decade before the Civil Rights Movement got underway in earnest. White fans and players were a lot more accepting of a Black player when he was able to prove he belonged, and was eventually able to help Brooklyn bring home its first World Series championship (in 1955).

We could devote this item to re-telling Robinson's story, as the pride of the Dodgers (and of UCLA) is a bona fide heroic figure. However, baseball fans surely know about Robinson without our help. And even non-baseball fans likely know, too, thanks to Robinson's prominent place in American culture, countless books on Robinson, and films like 42, The Jackie Robinson Story and Ken Burns' Baseball.

Point is, we don't have much to add on that subject. So, instead, we thought we would take the occasion of Jackie Robinson Day to take note of a handful of other historic Black baseball players, who tend to get overlooked because of the massive shadow that Robinson casts:

• William Edward White and Moses Fleetwood Walker: One of these two men was the first Black man to play professional baseball; which of them it was depends on your definition. White, who played a single game in June 1879, certainly came first. But, perhaps apropos to his last name, he appeared to be white and he identified as such. Walker played 42 games, 5 years later, for the Toledo Blue Stockings. He appeared Black, identified as such, and was the person who led professional baseball to establish the color line that Jackie Robinson would break nearly 63 years after Walker played his last game.
  
  
• Cumberland Posey: Posey was a gifted athlete, and integrated the athletic departments at both Penn State and Duquesne, playing both basketball and baseball. He then played pro baseball in the Negro Leagues, as the owner and one of the stars of the Leagues' best team, the Homestead Grays. Once his playing career ended, he continued to lead the team as owner and general manager, signing such stars as Josh Gibson, Oscar Charleston, and Cool Papa Bell, and winning nine Negro National League titles and three Negro World Series championships. Posey is the only person ever to be inducted into both the Baseball Hall of Fame and the Basketball Hall of Fame.
  
  
• Buck O'Neil: He was a capable player in the Negro Leagues, if not a star. After his playing career ended, he worked tirelessly to preserve the history of Black baseball, particularly the pre-integration history. On top of all that, he was also the first Black coach for a Major League team (specifically, the Chicago Cubs). For all of these reasons, he was inducted into the Baseball Hall of Fame, albeit after his passing.
  
  
• Curt Flood: For many generations, Major League baseball players were subject to the "reserve clause" that was a standard part of contracts. This bound them to the team with which they first signed, for as long as that team wanted their services. As you can imagine, if a team has a monopoly on a player, then that team is in a position to dictate salary terms. Players could hold out, and star players sometimes did, but that tended to damage those players' public image (and thus their potential to earn money as celebrity pitchmen). Also, if owners refused to budge in response to the holdout, the player was left with the choice of returning with his tail between his legs or else losing out on a year's salary. And, of course, pro athletes' careers are finite.
  
  Curt Flood did not much care for this state of affairs. And when he was traded from his original team, the St. Louis Cardinals, to the Philadelphia Phillies, he decided not to go along. Backed by the Major League players' union, Flood wrote a letter to then-MLB Commissioner Bowie Kuhn that's now famous among historians of baseball:

  December 24, 1969
  
  After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.
  
  It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season.

  Flood noted to friends that he was significantly influenced by the Civil Rights Movement and Black Power, and he compared the reserve clause to slavery.
  
  This story does not have a happy ending, at least in the short term. Flood lost his court case; the more numerous conservative wing of the Supreme Court voted against him, while the smaller liberal wing voted with him. Please understand, that was back in the long-ago days that SCOTUS was highly politicized. Thereafter, Flood was blackballed from baseball and never played another game. He thus gave up a six-figure salary, a possible post-playing career as a coach or manager, and a very real chance at making the Hall of Fame.
  
  However, he nonetheless got the ball rolling, and the reserve clause was struck down less than 4 years later. Flood also lived long enough to see Congress pass, and Bill Clinton sign, a bill (The Curt Flood Act of 1998) which explicitly forbade the return of the reserve clause, should owners ever be tempted to try it.
  
  
• Frank Robinson and Ernie Banks: One of these two men was the first Black manager of a Major League team (for non-baseball fans, the manager is the highest-ranking coach, and is the "field general" who sets the lineup and makes tactical decisions). Generally speaking, Frank Robinson is regarded as baseball's first Black manager; he took over as skipper of the team then known as the Cleveland Indians (now known as the Cleveland Guardians) on April 8, 1975.
  
  However, many years later, someone noticed that on May 8, 1973, Chicago Cubs manager Whitey Lockman was ejected from a game, and on a day that both of his assistant coaches happened to be out sick. In view of this, as Lockman left the dugout, he instructed the team's most experienced player, Ernie Banks, to manage the remainder of the game. And so, while Banks never carried the title of manager, nor was he ever paid as such, he did manage two Major League innings nearly two years before Frank Robinson took over the Cleveland club. Both of these men are in the Baseball Hall of Fame, albeit primarily for their feats as players.

The celebration of Jackie Robison is, in many ways, a celebration of all of these folks who helped move the game forward in various ways. It's just a shame that, on the whole, their names won't be mentioned very much on Saturday. Still, they get a tip of the cap from us, at least. Have a good weekend, all. (Z)

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