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Samuel Alito Also Took Luxury Vacation(s) Funded by a Billionaire
By now, many people know that Justice Clarence Thomas took favors, including luxury vacations, from a Republican billionaire who was keenly interested in some matters before the Supreme Court. Turns out Thomas wasn't the only one. ProPublica now has another mind-boggling report out that Justice Samuel Alito also went on at least one luxury vacation funded by a hedge fund billionaire, Paul Singer, who had business before the court. This seems to be common practice over there.
The trip occurred in 2008, when Singer flew Alito to an exclusive ($1,000/day) lodge in Alaska on his private jet. If Alito had chartered the jet himself, it would have set him back about $100,000. Alito did not report the gift on his disclosure form although failure to report a gift this big is a violation of federal law. Just coincidentally, Singer's hedge fund had a dispute with Argentina that played out in the Supreme Court. Alito did not recuse himself and voted with the 7-1 majority in Singer's favor. Argentina ultimately paid the hedge fund $2.4 billion. Sounds like a pretty good return for giving a "friend" a free plane ride and a few days at a nice lodge (owned by Singer).
The whole thing gets even more incestuous, politically, when you take note of a few additional details. Also on the trip was Leonard Leo, head of the Federalist Society, which advises Republican presidents on judicial picks. And Singer himself is a big-time Republican donor. He has given over $80 million to the GOP over the years and also large amounts to Republican think tanks.
Prof Charles Geyh of the Indiana University Law School, who is an expert on recusals, said: "If you were good friends, what were you doing ruling on his case? And if you weren't good friends, what were you doing accepting this [the free trip]?" Such a deal would be illegal for nearly all federal workers, who are banned from taking even modest gifts. However, the Supreme Court is expected to police its own members.
Alito has responded to the report by publishing an op-ed in The Wall Street Journal saying that he believes that the reporting requirement excludes "accommodations and transportation to social events." The law does exclude gifts of food and lodging at a friend's house, but the lodge he stayed at is a commercial property, open to any fisherman who wants to pay the price. It is not Singer's home. The law also explicitly says that gifts of private jet travel must be reported. ProPublica found at least six other examples of federal judges reporting gifts of private jet travel.
A spokesman for Singer says that the two did not discuss any business matters on the trip. That might even be true. At this level, it isn't even necessary to have the donor explicitly say: "Oh by the way, I'd appreciate your vote on my case." The quid pro quo is implicitly understood by all parties. It would probably be considered gauche to actually say it out loud, even on a fishing trip in rural Alaska with nothing but fish and seals and the Palin family to hear it.
Slate's two legal beagles, Dahlia Lithwick and Mark Joseph Stern, published an interesting conversation on the subject. They see an incipient divide on the Supreme Court between the far right, namely Thomas and Alito, who want to go hard right as fast as possible and don't care a bit about the Court's reputation, and the four other (not-quite-so-far-right) Republican appointees, who would prefer to inch slowly to the right and preserve the Court's reputation (and keep the Democrats in Congress from reining in the Court next time they get the power to do so).
Democrats are already up in arms, but they can't do much now. When the Thomas scandal came out, Senate Judiciary Committee Chairman Dick Durbin (D-IL) said: "We wouldn't tolerate this from a city council member or an alderman. And yet the Supreme Court won't even acknowledge it's a problem." With this latest development in the ethics-challenged Court, Durbin announced yesterday that the Judiciary Committee will vote on an ethics bill for the Supreme Court in July. He said that the highest court should not have the lowest ethical standards.
Depending on whether Sen. Dianne Feinstein (D-CA) is up and running in July, the bill will probably clear the Committee. But it will get nowhere in the full Senate. Minority Leader Mitch McConnell (R-KY) yesterday told the Democrats to stay out of the Supreme Court's business. He said it was up to the chief justice to handle ethical issues on the Court. We count that as a "no" vote on Durbin's bill.
And McConnell is pushing back despite the fact that all the bill will do is apply the same standards to the Supreme Court as applies to the lower courts. Enforcement will be largely up to the Court itself. If a justice gets a nice $100,000 vacation for free and doesn't put it on his disclosure form, well, who's to know? And if the justice is caught, the only remedy is impeachment and conviction, which is very, very unlikely, or the DoJ bringing a criminal case, which is almost as unlikely.
One possible effect of Durbin's bill is putting pressure on Chief Justice John Roberts to take some action himself to try to forestall Congress doing it for him. How likely that is probably depends on how much publicity Durbin's bill gets and how close the vote is. He is keenly aware of the Court's reputation and his legacy and his actions are certainly influenced by those factors. (V)
Religious Groups Are Joining the Abortion Battle... and Opposing Bans
Evangelical Christian groups are at the forefront of trying to ban abortion because—well, we're not sure because the staff theologian is on vacation. Today is the summer solstice, after all. But we guess it must be because Jesus spent his whole ministry talking about how evil abortion is. At least, when he wasn't walking on water or healing lepers. Now it turns out that other religions are chiming in and have rather different views on the matter.
In Indiana, for example, Jewish, Muslim, and some other religious plaintiffs have sued the state over its near-total ban on abortions. Their argument is that the ban violates their religious freedom, which is guaranteed by the Religious Freedom Restoration Act, signed by then-governor Mike Pence in 2015. The case has gained class action status, which means that a win would make it apply to anyone in the state whose religious beliefs are restricted by the ban. Oral arguments are expected by the fall.
The key issue here is when life begins. The Indiana law says that life begins at conception and an abortion ban thus protects the life of the zygote as a living person. However, the view that life begins at conception is a strictly Christian view—and not one supported by all Christian denominations, at that. Jews believe that life begins when the baby takes its first breath. Most Muslims believe that life begins 120 days after conception, when ensoulment occurs. Some Hindu texts, like the Bhagavad Gita, argue that the soul is neither born nor dies, so conception is not a special moment. Consequently, the plaintiffs in the Indiana and other cases are arguing that writing a belief held by some Christians (and not even all) into state law violates the First Amendment's ban on establishing a state religion.
Rabbi James Bennett, one of the plaintiffs in a Missouri lawsuit, said of the state legislators: "They're entitled to their interpretation of when life begins, but they're not entitled to have the exclusive one." In Kentucky, three Jewish women filed a lawsuit saying that Kentucky's near-total ban on abortion is preventing them from pursuing pregnancy through in-vitro fertilization. The procedure often requires discarding fertilized eggs, which is illegal under current Kentucky law. Lisa Berlow, the lead plaintiff in that case, said: "To have someone else's religious belief that an embryo is a human being imposed on me in a way that's so personal, that prevents me from growing my family, is just rude and un-American."
In Florida, clergy for Reform Judaism, Buddhism, the Episcopal Church and the Unitarian Universalist Church filed a lawsuit asking the court to overturn Florida's abortion law, or at the very least to secure exemptions for their members. Of course, if their members get an exemption, any woman who wants an abortion could suddenly convert to one of the religions that has an exemption, making the ban meaningless. "Why yes, I am a Zen Buddhist. I have often pondered what the sound of one hand clapping is."
Even the Satanic Temple is challenging abortion bans in Texas, Idaho, and Indiana. Is this a religion? The courts don't like to say what is a religion and what is not. Do we need some rule about having 1% of the country signing up and having 40,000 dues-paying members to make some group a religion? There have been numerous court and other cases around the world about whether the Church of the Flying Spaghetti Monster is a religion and thus whether its adherents are allowed to wear their religious headgear (a colander) in official photos like this:
Some of these cases are likely to make it to the Supreme Court, which has expressed great deference to the religious views of people involved in cases before the Court. But in nearly all the cases, it has been the rights of evangelical Christians at stake. There isn't much of a track record of what the Court will do when the litigants are not evangelical Christians and are claiming that some law is preventing them from exercising their religion. (V)
New York Legislature Passes Bill that Shields Interstate Abortion Providers
Abortion is expected to be one of the top issues in 2024 and state legislatures are making sure it is. In red states, the legislatures are banning it right and left (well, right and further right), but in blue states legislatures are trying to help red state residents evade those bans. On Tuesday, the New York State legislature passed a bill that will protect state doctors who provide telehealth abortion services from out-of-state lawsuits. Gov. Kathy Hochul (D) has said that she will sign the bill. Once she has signed it, if a doctor in New York prescribes and/or sends abortion pills to someone in a state that bans abortions and that state sues the doctor for violating its laws, the new bill orders the New York State courts not to cooperate with the other state. In particular, if the other state asks New York to extradite the doctor, New York courts will refuse to do so, citing state law. In practice, that means that as long as the doctor does not set foot in the other state (and that includes changing planes at a red state airport), there is nothing the other state can do about it. At least, not until the first case hits the Supreme Court.
New York is not the first state to pass such a law. Colorado, Massachusetts, Vermont and Washington have similar laws, but New York is a big blue state with a lot of doctors, many of whom are quite willing to prescribe and/or mail abortion pills to women in other states who need them. They will soon be able to do this safely, without worrying about the laws of other states. Some of the doctors are quite open about it. For example, Dr. Linda Prine, cofounder of the Miscarriage and Abortion Hotline, said that she and at least three other doctors will start mailing the pills to women in states where abortion is banned as soon as Hochul signs the bill. A similar bill is working its way through the California legislature.
Of the 14 states that ban abortions, all have penalties for people who provide or help provide abortions, but do not penalize women who get the abortions. If the abortion provider is out of state and that state's laws make prosecuting or suing the providers legally void, it will be very difficult for the 14 states to enforce their bans. Searching the mail for out-of-state packages would be illegal as the USPS is a federal, not a state, organization. It will also be impractical as providers will surely use standard unobtrusive boxes used for many products and use as return addresses P.O. boxes (or maybe not put any return address on the boxes). If they really want to get sneaky, they could put stickers reading: "Here are your yummy brownies" or "Here are your dental supplies" or some such on the boxes. Maybe "Here are your Generals of the Confederacy collectible plates." We bet red-state governments let those right through. (V)
Are Latinos Becoming Republicans?
Equis is a progressive organization that has been studying Latino voting in 2020 and 2022 and trying to figure out what that means for 2024 based on 22,000 interviews. In particular, there was a shift of Latinos toward Trump in 2020 and 2022 in some places, and the question is whether this was a fluke or a harbinger of more change to come.
In 2022 specifically, Latinos moved sharply rightward in Florida, but not so much in the other battleground states. Florida is a special case for a variety of reasons (e.g., a different mix of Latino origins than elsewhere), but why did the Democrats hold their own in the other battleground states? The conclusions were:
- The Republicans didn't do a good job talking about the economy
- Latino swing voters felt that Republicans prioritize the rich
- Abortion
However, things may be different in 2024. Many marginal Latino voters, who vote only in presidential years, may nevertheless be more open to the Republicans (and even Donald Trump) in 2024 than they were in 2020. These voters are very sensitive to inflation and blame the Democrats for it. This shift might be enough to turn Arizona and Nevada red in 2024.
The study has two main points for 2024. First, the Republicans still aren't a multicultural working-class party. While inflation is an issue, cultural concerns are also at work. And on education and healthcare, Latinos favor the Democrats. Second, Democrats have to persuade Latinos, not treat them like GOTV targets. Some Democrats automatically assume Latinos are on their team and all they have to do is get them to the polls. This is not true. Many Latinos are undecided and torn between the parties. Some are religious and family-oriented and culturally lean Republican while at the same time leaning toward the Democrats on more economic issues. Showing up early matters. In Nevada, for example, Sen. Catherine Cortez Masto (D) began advertising on Spanish-language television long before Adam Laxalt (R), and by the time he started, he was already 11 points under water. But Masto is a Latina herself and understands this. Other Democrats may not.
The bottom line in the study is that many Latinos are on the fence and have to be persuaded. For the Democrats to assume they will always vote for Democrats is foolish. They are winnable, but the Democrats need to show up and try hard. (V)
The Butterfly Congress
The butterfly effect is a concept that says small far-away effects can have grave local consequences—like a butterfly flapping its wings in Brazil causing a hurricane in Florida. There are plenty of examples of it. For example, if Eli Whitney had never invented the cotton gin in 1794 (and nobody else had invented it later), cotton farming in the South would not have been economical, slavery might well have gone into decline due to not being economically viable, and the Civil War might have been avoided.
Right now, and in the recent past, control of Congress has been so close that tiny events that would otherwise be unimportant have become like the butterfly. If the Democrats had 55 seats in the Senate, nobody except her immediate family would care much about whether Dianne Feinstein showed up for work. But since her vote on the Senate Judiciary Committee is critical for approving judges, a lot of people care.
The current situation is abnormal. The House and Senate majorities during the past 30 years have been exceptionally small by historical standards. In the 12 congressional elections since 2001, one party got to 55 Senate seats only three times. In six of the past 12 sessions, the Senate majority party held 52 seats or fewer six times. In contrast, from 1981 to 2001, the majority party had 55 seats or more seven of the 10 times. From 1961 to 1980, the majority party had 55 seats nine of the 10 times.
The House is just as tight. Now the Republicans have a five-seat majority. Before this session, Democrats had a five-seat majority. From 1955 through 1994, the majority party often had a majority of 60+ seats.
Because majorities are so small now, the parties are fighting over every scrap. The recent Supreme Court decision about one seat in Alabama is suddenly a really big deal. Both parties are using every tool they have to gain a small advantage now, including mid-cycle redistricting, which could happen in North Carolina or New York or both.
Maybe something will break this WW I-style trench warfare, but it seems unlikely anytime soon because of two powerful trends. First, the country is hardening into two immutable blocs, one red and one blue, with almost no movement. That is true in terms of states, but also at the county level, with urban and suburban counties being blue and rural counties being red, no matter the overall color of the state. Second, split-ticket voting has gone the way of the dodo. Almost no one now says: "I vote for the best candidate, irrespective of party." That used to be normal. Only 23 House members won despite their district supporting the other party's presidential candidate. Democrats hold 48 of the 50 Senate seats in Biden states and Republicans hold 47 of the 50 Senate seats in Trump states.
Everything is now stable. Democrats win blue districts and states and Republicans win red districts and states. Only three states are really on knife edge in presidential elections: Arizona, Wisconsin, and Georgia. Maybe in a blue wave, North Carolina. Paradoxically, this great stability nationally has led to instability in Congress, where half a dozen members can hold the House and the country hostage because every vote matters in the House. And it looks like no change in the situation is in the offing. (V)
Censured Schiff
Last week, we wrote about the failed effort by House Republicans to censure Rep. Adam Schiff (D-CA) for saying mean things about Donald Trump's connections to Russia. When 20 Republicans broke ranks to vote with the Democrats, we foolishly concluded that there are at least some Republican members who recognize that it's not good to abuse a serious parliamentary tool just to produce some red meat for the base.
Well, our faces are red. It turns out that the problem was not abuse of motions of censure, per se. It's that the original bill put forward by Rep. Anna Paulina Luna (R-FL) also required Schiff to pay a penalty of $16 million. Those Republican members were either worried that would not pass legal muster (and that Schiff would get loads of free publicity while fighting it), or that it would set a worrisome precedent.
So, Loony... er, Luna resubmitted the bill with the $16 million penalty stripped out. And yesterday, it passed the House on a party-line vote, excepting that the five Republicans on the ethics committee, along with Rep. Ken Buck (R-CO) voted "present." Part of the censure process is requiring the member to stand in the well of the House while their misdeeds are recounted by the Speaker. Schiff was more than happy to do it, while Democrats jeered and booed and made it nearly impossible for Kevin McCarthy (R-CA) to actually read the verbiage he needed to read.
After he had been "shamed," Schiff told reporters that he regarded the censure as a badge of honor, observing that "They wouldn't be going after me if they didn't think I was effective." Hard to argue with that; if House Republicans wanted to make sure that everyone knows which U.S. Senate candidate is the Trump slayer, they couldn't have found a much better way to do it. And that is a question likely of enormous interest to voters in California, where Trump is none too popular (he lost the state by a 2-to-1 margin, both times). We presume that, by the time you read this, the Schiff campaign will have sent out at least three fundraising e-mails making mention of his "disgrace."
Meanwhile, coming off this success, Luna and the other Freedom Caucusers are setting their sights on an even bigger target, and have already introduced at least four different resolutions to impeach Joe Biden. McCarthy is trying to persuade the FCers that this is not the time, since such a move would probably fail in the House (and would definitely fail in the Senate), would put swing-district Republicans in a bad position, and would be a boon to Biden's fundraising. The Speaker has thus far not had much luck reining in the FCers; we'll soon see if he can pull it off this time. (Z)
Abbott Vetoes Bill that Would Expand Voting Access for Disabled People
Gov. Greg Abbott (R-TX) just vetoed a bipartisan bill that would have made voting by mail easier for people with disabilities. One might have thought that Abbott might have some sympathy for people with disabilities, since he was paralyzed below the waist when an oak tree fell on him after a storm when he was 26, and he has been using a wheelchair for the past 40 years. If so, one would be wrong.
The bill would allow voters with disabilities to receive an electronic ballot and mark their choices electronically. This would be of special value to blind voters, who could receive their ballot on a computer, have the computer read the ballot to them out loud, and help them mark it.
Katya Ehresman, the voting rights program manager for Common Cause Texas, said: "Greg Abbott either didn't read this bill closely enough to understand what it really does or is deliberately working to make it harder for Texans with disabilities to vote." Texas is one of the states where getting an absentee ballot is already very restricted, so the second possibility sounds plausible to us. Conservatives opposed the bill saying it could lead to election fraud, even though there is virtually no evidence of that.
Indeed, conservatives who say that are demonstrably operating in bad faith. There is an interstate organization called ERIC (Election Registration Information Center), that allows states to check if a voter is registered in another state. It is the primary tool election officials have to prevent people who have recently moved from voting in both their old state and their new state. In other words, it helps prevent election fraud, something Republicans say they are worried about. Recently, eight states with Republican secretaries of state have dropped out of ERIC. If they were genuinely interested in preventing election fraud, they would be ERIC's biggest supporters. Here is a map showing which states are in ERIC and which ones recently left it:
The reason eight states have dropped out of ERIC is that another part of its mission is helping unregistered voters register. This is the part Republicans don't like. Apparently their dislike of this part is so strong that it overrides their approval of the first part of ERIC's mission (preventing election fraud). Nothing ERIC does is partisan. It is just about helping eligible voters vote and stopping ineligible voters from voting. (V)
Democrats Are Worried about AI-Generated Disinformation in 2024
Democrats are worried silly about a tsunami of fake AI-generated content flooding the airwaves and the Internet in 2024. AI could produce plausible-sounding misinformation and disinformation at an unprecedented rate this year and next. The problem is that bad actors will be able to produce false, but seemingly real, content very easily and flood the zone with it. It will be impossible to stop. And it is well known that lies can travel around the world three times before the truth has gotten its boots on.
In addition to false news stories, there is the problem of deep fakes, both photos and videos. People can be shown in situations they were never in and in videos, people can appear to say things they never said. Congress could pass a law requiring AI-produced content to be labeled as AI produced, but this Congress is certainly not going to do that.
Fundamentally, AI doesn't change anything. Campaigns have always produced attack ads in various forms. Only now they are cheap and easy to produce very quickly. That means there is going to be much more of it. In particular, presidential campaigns have always had the resources to do this, but now even candidates for state Senates and state Houses can start easily producing fake ads full of lies.
The advance of AI probably helps the Republicans more than it helps the Democrats because some well-known Republican politicians lie all the time about everything and have no problem putting out fake ads. The new technology makes this easier and cheaper than ever before. Democrats don't depend on lies as much as Republicans, and some of them view putting out lies as immoral and unacceptable. This puts them at a disadvantage when the ability to generate fake content has become easily available. They know this and this is why they are worried. (V)
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