Nothing will change for my institution, the University of Michigan. In 2006 the good people of the state passed Proposal 2, forbidding the use of race as a factor in admissions.

This measure caused the percentage of African-American students to drop. In 2005 non-Hispanic Blacks made up 7.2% of the Ann Arbor undergraduate student body.

Today African-American students make up less than 4% of the undergraduate student body on the Ann Arbor campus. That is a 45% drop. Virtually the same thing happened in the University of California system when they had to stop doing affirmative action.

The University of Michigan drop came despite the university’s attempt to substitute “hardship” as an admissions criterion for “race.” Students wrote in their personal statements about difficulties and obstacles that they faced in life through their high school years. But of course, as hard as life might be for African-Americans in the United States, there are others who face obstacles and hardships — poor whites, LGBTQ+ people, and women, and many of these other disadvantaged people are white. So they seem to have taken up nearly half the slots formerly allotted to Black people.

In other words, “hardship,” which Chief Justice John Roberts admitted in his decision might be considered in admissions, just doesn’t do the same work as race-conscious admissions do.

13.64% of Michiganders are African-American, so they are vastly underrepresented on the Ann Arbor campus.

Leave slavery aside, when they were unpaid labor for as much as 400 years. From the 1930s to 1968 the practice of redlining in Michigan prevented African-Americans from accumulating wealth through home ownership. That gave white families a galactic advantage. Even since redlining was officially outlawed in the 1960s, it cast a long shadow on homeownership rates and pricing of houses by neighborhood. Informal segregation, sometimes abetted by realtors, continues to keep Detroit and Flint among the most segregated cities in the United states.

H/t Urban.org

That bastion of left-wing radicalism, the RAND think tank (which started out as an adjunct to the US Air Force) reports: “The median Black household in America has around $24,000 in savings, investments, home equity, and other elements of wealth. The median White household: around $189,000,” This happened because of redlining and other elements of systemic racism, not because of any fault of African-Americans themselves.

John Roberts believes that such injustices have already been made up. They haven’t. They haven’t begun to be. Having robbed Black people blind since 1619, the least we can do is try to give them educational opportunities consonant with their proportion of the population.

Personally, I think the University of Michigan should set up a magnet K-12 school in Detroit and promise admission to those who graduate from it with good grades. If it was our school, we should be able to do as we please with its graduates. If it was in Detroit, it would ipso facto have mostly African-American attendees, but that wouldn’t be our problem.

There is a well-known fallacy among economists, called the “lump of labor.” Many people assume that if you increase job-holders among one group, it will reduce the jobs for another, that there is a fixed amount of labor to be done. This idea could not be more false. Look at Turkey in 2016-2017, when the economy grew 4% a year at a time of slowdowns for other countries. Economists concluded that the growth came about because two million Syrian workers had fled to Turkey from their civil war. That meant that farmers who wanted to expand suddenly had access to farm labor, and urban businesses that wanted to expand had access to educated Syrians, adding to the available work force. Turkey could do more work because it had more workers. Syrians didn’t take jobs from Turks, they expanded the pie.

Opponents of affirmative action in higher education believe in a similar fallacy, the “lump of education.” So they think if you admit more minorities to colleges and universities, it will keep out some whites who might otherwise have gotten in. But the colleges and universities might expand their student body. This has happened at my university, In 1984 when I arrived at the University of Michigan’s Ann Arbor campus there were a little over 34,000 students, including about 6,000 graduate students. Today we have almost 50,000 students, including 17,000 grads. Michigan’s population was 9 million in 1984. It is 10 million today. The state grew 10%. The student body grew by 32%. Things change. In many cities and states “meds and eds,” medicine and education have replaced traditional industry as contributors to gross domestic project, and we can expect further expansion of education.

There is room in this growing economy for everybody. Let’s find a way to benefit from the talents of all Americans of all races and backgrounds, and not systematically sentence some to menial labor based on the color of their skin.

(The Conversation) – On March 2, 2023, Tennessee became the first state to enact a law restricting drag performances.

This law is part of a larger push by Republican lawmakers in numerous states to restrict or eliminate events like drag shows and drag story hours.

These legislative efforts have been accompanied by inflammatory rhetoric – not grounded in fact – about the need to protect children from “grooming” and sexually explicit performances.

Such rhetoric reveals that those seeking to restrict drag performances sometimes don’t understand what drag is or seeks to do.

Drag is an art form in which performers play with gender norms. Drag shows often include dancing, singing, lip-synching or comedy. Some common forms of drag include cisgender male and transgender female performers dressed in stereotypically feminine ways and cigender female and transgender male performers dressed in stereotypically masculine ways.

Drag artists also participate in many other kinds of events. For example, drag queens host family-friendly story hours at local libraries where they read age-appropriate books to children.

Current Supreme Court decisions suggest that laws like the one just passed in Tennessee probably violate the First Amendment’s protection of free speech. This is, in part, because many drag performances are protected by the First Amendment, which safeguards not only spoken, written, and signed speech but also many other actions meant to convey messages.

Via Pixabay. File.

Republican legislators appear to have written the law to try to avoid running afoul of the First Amendment by treating drag shows as if they meet the legal definition of obscenity. Speech, including expressive conduct, that meets the Supreme Court’s criteria for obscenity is not covered by First Amendment protection.

I’m a scholar who studies U.S. free speech law. Looking at the text of Tennessee’s new law, I see several ways in which this anti-drag law appears susceptible to significant First Amendment challenges.

Tennessee’s new law

The law amends what Tennessee considers “adult cabaret entertainment” and bans “male or female impersonators” from performing on public property or in any other location where the performance “could be viewed by a person who is not an adult,” when such performances are “harmful to minors” as that phrase is defined by Tennessee law.

This law thus regulates not only public spaces but also privately owned locations like bars and performance venues. A first violation is a misdemeanor. Subsequent violations are felonies.

Because the law is limited to drag performances that are “harmful to minors,” in theory, most drag shows should be unaffected.

But various Republican legislators in Tennessee have recently fought to prevent even vetted family-friendly drag shows with no lewd or sexual content from being held in public.

Given this, drag performers and other artists have reasonable grounds for suspecting that Tennessee officials may seek to interpret the new law broadly to include many kinds of drag performances and other shows that play with gender norms.

Given the popularity of drag shows, this new law could stifle a lot of expression and damage the ability of full-time drag performers to make their living.

But even if Tennessee officials interpret the new law narrowly, the law still appears likely to run afoul of the First Amendment.

Drag is protected ‘expressive conduct’

The First Amendment protects more than just written, oral or signed speech. It also protects many other actions designed to convey ideas. The legal terms for these actions are “expressive conduct” or “symbolic speech.”

Some activities courts have recognized as expressive conduct include making and displaying art and music, picketing, marching in parades, desecrating a U.S. flag, burning a draft card, dancing and other forms of live entertainment.

Drag shows typically consist of various forms of protected speech – such as telling jokes and introducing performers – and protected expressive conduct such as lip-synching and dancing. Thus, drag shows are usually covered by the First Amendment.

But Tennessee’s new law insinuates that drag performances might be part of a category of speech exempt from the First Amendment protection: legally defined obscenity. If this were so, then Tennessee’s law likely would pass constitutional muster. But the law seems to target more than merely legally obscene material.

However, Tennessee lawmakers have not provided viable examples of obscene drag performances in Tennessee. And current Supreme Court precedent makes it highly unlikely that all the expressive conduct Tennessee seeks to regulate falls into the narrow legal category of obscenity.

Defining obscenity

In considering whether something is legally obscene, the Supreme Court requires courts to consider whether (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct defined by the applicable state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

In the relevant part of its criminal code, Tennessee law states that:

“Harmful to minors means that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance (a) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors; (b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and (c) Taken as whole lacks serious literary, artistic, political or scientific values for minors.”

Given the similarities between Tennessee’s description of “harmful to minors” and the Supreme Court’s definition of “obscenity,” Tennessee appears to be trying to avoid First Amendment scrutiny for its new law.

But there are some important differences between Tennessee law and the Supreme Court’s description of obscenity.

Perhaps most importantly, the Supreme Court limits obscenity to speech that lacks serious literary, artistic, political or scientific value full stop; not just work that lacks such serious value specifically for minors.

As is widely recognized, drag is artistic and political. Drag performers use drag to push artistic boundaries and to discuss pressing political issues.

There is no First Amendment requirement to determine when or whether the value of speech applies “for minors.” Adults living in a democratic society need to be able to discuss a wide range of issues, not all of which will have value for children. Supreme Court free speech precedent recognizes this.

Thus, Tennessee probably cannot rely on a claim that it is criminalizing only legally obscene expressive conduct. Instead, it must regulate drag performances in accordance with the First Amendment’s free speech protections.

Discriminatory and overly broad

Freedom of speech, like all rights, is not absolute.

The Supreme Court has allowed states to put some limits on protected speech. For example, states may impose restrictions on the time, place and manner in which speech occurs, so long as such limitations are content-neutral.

Examples include requiring permits to hold parades on city streets and not allowing loud music between midnight and 6 a.m. on public sidewalks.

However, Tennessee’s law goes far beyond these kinds of limited regulations of protected speech in at least two ways.

First, it legislates more than mere time, place and manner restrictions. Instead, the law bars, at all times, “male or female impersonation” that it deems “harmful to children” from any public property and from many private venues, too. This is a wholesale ban on such speech in all public forums and in many private spaces. Courts will likely find this too broad.

Second, by singling out “male and female impersonators,” Tennessee’s law fails to be content-neutral. It instead discriminates on the basis of the expressive conduct’s content.

Tennessee’s new law bolsters the case that anti-drag laws are antidemocratic, discriminatory and unconstitutional.

This story has been corrected to describe the amended version of Tennessee’s SB3, which was signed into law on March 2, 2023, and to remove reference to a Kentucky state legislator.

Mark Satta, Assistant Professor of Philosophy, Wayne State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

You may wonder if the world has abruptly gone mad.

Alas, it is the sad duty of historians to remind everyone shocked by the present that, as Ecclesiastes 1:9 has it,

What has been is what will be,
    and what has been done is what will be done;
    there is nothing new under the sun.

As we commemorate the Rev. Martin Luther King, Jr., it is worth remembering that the Q of his era was not anonymous. It was J. Edgar Hoover, the long-term head of the Federal Bureau of Investigation.

The FBI was formed in 1908 by Teddy Roosevelt, over the objections of Congress, which feared a secret police. Its initial charge was to hunt down anarchists, who in the hysteria that swept the country after the assassination of President McKinley were thought to be lurking just about everywhere in the country and making designs to pull down Western civilization. In fact, there were not many anarchists and they weren’t, as you might expect, very well organized. Many were German, Italian and Jewish immigrants involved in labor movements and many stood against WW I. That was a legitimate stance to take, but it was made illegal, quite in contravention of the First Amendment, and an Anarchist Exclusion Act was passed making it easy to bar such people from coming to the U.S. and to deport those already here. The Red Scare gripped America. One of its teenaged proponents was a young J. Edgar Hoover.

Sixteen years after the FBI was created, J. Edgar Hoover became its head at age 29, surfing the wave of the Red Scare. He ran the organization with an iron fist until 1972, during which time he perfected the techniques later used by press lord Rupert Murdoch at Fox, of spying on prominent people, getting dirt on them, and then using the dirt to manipulate them.

Another QAnon-type conspiracy theory that gripped Washington in the 1940s through the 1960s was McCarthyism, which held that there were a lot of U.S. Communists and that they might take over the government. They were the new anarchists. There were likely about 100,000 Communists in the U.S. by the 1950s, about half of whom left the party after 1956 when Soviet Premier Nikita Khrushchev revealed dictator Josef Stalin’s crimes. None of them wanted to overthrow the government and most were in provincial unions or were writers, etc., and had no power to do so. To this day, spoiled rich people and over-testosteroned rightists bemoan the proliferation of American Communists. As with the pedophile rings in pizzerias, they don’t exist and are a chimera used to beat people into submission regarding perfectly reasonable demands like a living wage. Republicans tried to defeat a corporate Democrat like Joe Biden, who may be a bit to the right of Ike Eisenhower, as a “socialist.” They meant, “Communist.”

The real purpose of red-baiting is to make sure that U.S. workers find it difficult to organize for better pay and conditions. By stigmatizing sympathy with working class people, the Right makes the demands of the latter politically and socially taboo.

Hoover had obsessed about the socialist and Communist menace all his adult life, and that was the lens through which he saw demands for rights for Black people. It seems to me that Hoover must have also been a racist, or he would have been better able to separate demands for civil rights from dialectical materialism. So Hoover saw the Rev. Martin Luther King, Jr. as potentially a Communist. Communists don’t believe in God, so I’m not sure how that was supposed to work. In fact, King preached against Communism as incompatible with Christianity. Duh.

King was a socialist, no doubt, and much more radical than today’s mainstream news will allow him to be. But he was not a violent revolutionary who wanted to impose Bolshevism on people.

Sarah Pruitt at History.com explains that one of the attorneys who supported and advised Rev. King, Stanley David Levison, had been a Communist and appears to have been in the mass exodus from the movement of 1956. Years later, Attorney General Bobby Kennedy granted Hoover permission to wiretap Levison on these grounds.

In all the years the FBI monitored King under the COINTELPRO domestic surveillance program, no evidence ever surfaced that he was a Communist or anything like a Communist. Instead of calling off his dogs, however, Hoover doubled down and used the monitoring of King’s personal life to gather evidence of his extramarital affairs. Hoover then tried to use those tapes to convince King that his reputation would be ruined and that he should commit suicide.

Hoover actually wrote a note to King instructing him to commit suicide.

Today’s FBI looks back on this episode as one of the darkest in the Bureau’s history.

But with the reemergence of conspiracy theories at the heart of the U.S. government during the Trump QAnon presidency, we should not be sanguine about the threats they pose to democracy. King renewed American democracy by forcing his co-citizens to face the evils of racial segregation and racial discrimination enshrined in the laws of the Jim Crow states.

That’s not Communism. That’s simple human decency. That is the sum of American values. Beware the ideological termites burrowing away at the fundament of our basic rights.

Now, those hearings are offering the country (and the Justice Department) what could be a last chance to begin restoring the kind of governance that once underlay a functioning democracy. There is, however, a deeply worrisome trend lurking just under this moment’s attempt to garner accountability — namely, the way loyalty to institutional Washington (even outside the law) perpetuates a flight from accountability that’s become a crucial part of American political life.

So far, the January 6th hearings have inspired a cascade of takeaways. With each televised session, new evidence about the acts of Donald Trump and crew have come to light, among them that the former president was all too tight with the far right and that he knew the crowd approaching the Capitol on January 6, 2021, was armed and dangerous. So, too, those watching have learned about witness tampering and also the lengths White House lawyers and others went to in trying to restrain the former president’s engagement with the January 6th rioters. Overall, many Americans (though not so many Republicans) have learned that January 6th was part of a far larger Trumpian effort to negate the results of the 2020 presidential election, no matter the facts or the law.

Beyond chronicling what happened and assigning blame, something else in those hearings is worth noting: namely, they are exposing the ever-growing contradiction between Washington institutionalists, whose first loyalty is to the agencies and departments they served or are serving, and the supposed purpose or mission of those very institutions. And all of this will take the U.S. even further from the democracy it still claims to be, if those who have served in them and in the White House can’t be held accountable for their abuses of power and violations of law.

Over the Cliff of False Institutionalism

For a long time now, the mechanisms of our democratic system of government meant to ensure accountability have been at the edge of collapse, if not obliteration. Who could forget how — something I’ve written about over the years at TomDispatch — the government officials who, in the wake of the 9/11 attacks, led us into the Global War on Terror found myriad ways to evade or defang the checks and balances of the courts and Congress? In the process, they managed to escape all accountability for their crimes. To offer a striking example: the top officials in the administration of President George W. Bush lied about Iraqi autocrat Saddam Hussein having weapons of mass destruction, which was their main excuse for their assault on his country in 2003.

According to the invaluable Costs of War Project, a year and a half after invading Afghanistan in 2001, the top officials of the Bush administration took this country into a war in Iraq that would cost the lives of more than 4,500 American service members and nearly as many U.S. military contractors. Almost 200 journalists and aid workers would also die in that conflict, not to mention hundreds of thousands of Iraqis.

The Costs of War Project estimates that the overall war on terror those officials launched will, in the end, have a price tag of nearly eight trillion dollars. Add to that the impossible-to-calculate costs of their acts to the rule of law, since they dismantled individual liberties and made a mockery of human rights. After all, the top officials of that administration oversaw the secret rewriting of the law to make torture at CIA “black sites” legal, while imprisoning individuals, including Americans, without access to lawyers, due process, or the courts at a prison they built in Guantánamo Bay, Cuba, a system distinctly offshore of what until then had been known as American justice.

When Barack Obama took over the White House in 2009, his administration failed either to mount a course correction or punish any of the torturers or jailers and those who gave them the green light to do so. As the president put it then, he chose to “look forward as opposed to looking backwards.” He refused even to hold an investigation into the misdeeds of Bush administration policymakers and lawyers who had rendered us a nation of torture, while secretly implementing warrantless surveillance policies on a mass scale, keeping Guantánamo open, and failing to bring the disastrous American presences in Afghanistan and Iraq to an end.

Ironically, in explaining his reasons for not shining a light into those CIA black sites or so much else that preceded him, Obama pointed to the importance of honoring institutionalism. It was crucial, he argued, for the Agency to be able to continue to function in ways that an investigation might impede. “And part of my job,” the president explained, “is to make sure that, for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering.”

Consider that an early sign of a toxic default to the version of institutionalism that threatens us today.

In the Trump years, Special Counsel Robert Mueller’s report on the 2016 presidential elections stopped short of indicting the former president. Mueller’s task was to investigate potential Russian interference with that election and possible coordination with Trump in that endeavor. Mueller ultimately backed away from indicting the president for obstruction of justice, despite the evidence he had, citing an obscure 1973 Department of Justice memo from the Watergate era (reaffirmed in 2000). The memo argued that such an act would distract the president from the pressing affairs of his office. “The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,” the memo said, and Mueller’s mind was evidently still boggled when it came to Donald Trump and the coming 2020 election.

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And then there was the failure to investigate the institutional problems that accompanied the country’s initial handling of the Covid pandemic. There has never been the slightest accountability for the denialism that greeted its initial stages, nor any attempt to document what went wrong then. In June 2021, Senators Bob Menendez (D-NJ) and Susan Collins (R-Maine) called for the creation of “an independent 9/11-style commission” to understand how the public had been left so unprotected by the Trump administration in those early pandemic months and to discuss what lessons should be drawn from it for a future pandemic. Senator Dianne Feinstein (D-CA) sponsored such an approach in the Senate, but nothing ever happened.

Such a narrative of accountability and blame might have exposed “the vulnerabilities of our public health system and issue[d] guidance for how we as a nation can better protect the American people.” But no such luck. The institutionalists prevailed and the bills are still lying dormant in Congress.

In these years, a continual distaste for self-examination and institutional reform has eviscerated notions of accountability, while leaving the nation unprepared and unprotected not only from future pandemics, but from abuses of power aimed directly at our democracy. So far, Donald Trump, in particular, has paid no price for his attacks on democracy, as the January 6th committee has made all too clear.

Institutionalists vs. Accountability

The January 6th hearings have only underscored the reticence of Attorney General Merrick Garland when it came to mounting a case against Donald Trump or any of his top officials. As former Acting Solicitor General Neal Katyal has written, “[W]e’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry.” And yet Department of Justice (DOJ) veterans continue to attest to their faith that the institution and Attorney General Garland will rise to the occasion.

Harvard law professor and former DOJ official Jack Goldsmith recently asked readers to sympathize with the difficult decisions the attorney general has to deal with. Garland “arguably faces a conflict of interest,” Goldsmith wrote. He then added that Garland would not only have to be convinced that he had enough evidence to get a conviction in federal court, but would have to ask himself “whether the national interest would be served by prosecuting Mr. Trump.” Goldsmith does recognize that a failure to indict could send a message that the president, even Donald Trump, “is literally above the law.” Yet he still ends his piece with a plea for trust in the AG’s decision-making.

And Goldsmith is anything but alone in putting his faith in the institution above the dire necessity of holding top officials accountable. Eric Holder, Obama’s attorney general, a 10-year DOJ veteran, has, in the end, weighed in similarly. “I’m an institutionalist,” he told Margaret Brennan on Face the Nation, signaling his credentials as a trusting servant of that department. “My initial thought was not to indict the former president out of concern [for] how divisive it would be. But given what we have learned, I think that he probably has to be held accountable.” A mere two weeks later he, too, had backtracked, saying “we should have faith” in Garland and the prospect of future indictments of Trump and top members of his administration.

In reality, this embrace of institutionalism, far from being a badge of honor, has become a millstone around the neck of the Department of Justice and the nation as a whole. Throughout the tenure of William Barr as Trump’s attorney general, veterans of that department and career officials there assuaged the fears of those worried that he would contribute to its further politicization. As department veteran Harry Litman reassured Americans on NPR, “That would never be Bill Barr. He’s a[n] institutionalist. He understands the important values of the Department of Justice. He has integrity. He has stature. He’s nobody’s toady.”

As it turned out, until the very end of Trump’s presidency, Barr proved to be an institutionalist bent on twisting the definition to fit his needs. His numerous stints in the White House, going back to the early 1990s, turned his form of institutionalism into an embrace of loyalty to the president over any form of accountability. Before the report of Special Counsel Mueller was even released, Barr provided his own spin, contrary to its findings. As he told NPR:

“After carefully reviewing the facts and legal theories outlined in the report… the deputy attorney general and I concluded that the evidence developed by the special counsel is not sufficient to establish that the president committed an obstruction of justice offense.”

This, despite the fact that, as Mueller testified, he had concluded otherwise.

Such shout-outs to institutionalism have become an essential part of the post-Trump political scene as well, extending to the very nature of America’s governing principles. For example, institutionalists who oppose expansion of the Supreme Court argue that such a move would constitute “serious violations of norms” and ultimately “undermin[e] the democratic system” and “diminish [the court’s] independence and legitimacy,” or so a report on potential Supreme Court reform, commissioned by Biden in 2021, concluded. And even after the disastrous Supreme Court decisions repealing abortion rights and expanding gun rights, President Biden, the consummate self-declared institutionalist, indicated that expanding the court “is not something that he wants to do,” as if the traditions of our institutions are more important than fairness, the representation of the majority, or even justice itself.

Biden has similarly shown an impassioned reluctance to challenge Congress, refusing, for instance, to lead the way when it comes to ending the filibuster in the Senate. Earlier this year he did finally (and unsucessfully) support a carve-out from the filibuster in order to try to get a voting rights bill passed and more recently in support of passing abortion-rights legislation. But his belated and tepid words were at best mere gestures and utterly without effect.

Could the January 6th Hearings Be a Game-Changer?

The House select committee investigating January 6th has been making its case directly to a remarkably substantial audience (mainly of Democrats and independents) — 20 million viewers for its opening evening session and 13 million for the daytime testimony of former White House aide to chief of staff Mark Meadows, Cassidy Hutchinson, who attracted the largest daytime audience yet for the hearings, far exceeding even the most watched cable news shows at that hour. And keep in mind that those viewers are, of course, potential voters this November.

In addition to the public, the Department of Justice has been a target audience for those hearings. As Congresswoman and Vice Chairperson of the committee Liz Cheney has said, “The Justice Department doesn’t have to wait for the committee to make a criminal referral. There could be more than one criminal referral.”

There’s another target audience, too: American history and the possibility that the integrity of our institutions can someday be restored. The hearings themselves project the hope that, despite the disastrous failures of American democracy and institutional Washington in this century, there are still guardrails capable of protecting us and fortifying the mechanisms of accountability.

Congressman Adam Schiff (D-CA), a member of the select committee, has summed up the matter this way:

“[F]or four years, the Justice Department took the position that you can’t indict a sitting president. If the Department were now to take the position that you can’t investigate or indict a former president, then, a president becomes above the law. That’s a very dangerous idea that the founders would have never subscribed to.”

Given Washington’s reliance in these years on loyalty to institutions rather than to democracy, it’s little wonder that polls of Americans show a waning trust in those very institutions. A recent Gallup poll typically “marks new lows in confidence for all three branches of the federal government — the Supreme Court (25%), the presidency (23%) and Congress” which ranked at a truly dismal 7%.

The question is: Can a revival of accountability as a cherished element of governance help to rebuild those institutions and trust in them or are we headed for a far grimmer America in the near future?

The January 6th hearings offer a certain hope that accountability might put institutionalism in its place. Restoring it (and so the faith of the American people in our democracy) should be the sine qua non for a post-Trumpist future. Whatever virtues our institutions may have, their true value can only persist if they are accountable to the principles of democracy they were created to uphold.

Copyright 2022 Karen J. Greenberg

Via Tomdispatch.com

In those years, for instance, Perry Mason was a much-loved staple from coast to coast. In each episode, Perry, that intrepid, tall, dark, kindly genius of a defense attorney, would face off against Hamilton Burger, a small-boned, pointy faced, sanctimonious prosecutor — and justice would always be served. He had what seemed then to be an all-American knack for uncovering exactly the right evidence of misdeeds that would lead justice directly to the doorstep of the true perpetrator of any crime and bring him or her to account. The takeaway caught the mood of the time: the courts and the legal system were powerful platforms for serving justice, sorting out right from wrong, punishing the criminals, and exonerating the innocent.

A few years later, Colombo would portray a police investigator whose reputation resided in his ability to sift through misleading facts and intentional subterfuge, unearth reliable evidence as well as the true culprits in any crime, and — without fail — bring them to justice.

Those two shows caught the essence of how most Americans then felt about the justice system in this country. We trusted it. Today, it’s not just that you can’t find such shows on TV anymore, it’s that trust in the legal system, fictional or otherwise, is rapidly fading, succumbing to the dangerous poison of this partisan moment and an ever more partisan Supreme Court. As Americans watch from the sidelines, the courts and the legal system continue to visibly fumble in the dark for legitimacy of any sort.

Yes, pundits and experts (like the rest of us) tend to focus on disastrous individual cases that interest them like the one in which those who plotted to kidnap and kill Michigan Governor Gretchen Whitmer managed to escape conviction or, say, the acquittal of the youthful Kyle Rittenhouse who used an assault rifle to kill two men at a Black Lives Matter protest. But here’s the truth of our moment: the larger picture of American (in)justice has become far more damning than any case could be. Ultimately, after all, the issue isn’t the outcome of any specific case, but trust (or increasingly, the lack of it) in the system that’s supposed to administer, adjudicate, and legitimate the law in America.

Despite the recent scandal over the Supreme Court’s coming decision to overrule Roe v. Wade, nowhere is this clearer than in the cases surrounding the January 6th Capitol riot.

The January 6th Investigation

It’s hard to describe the Justice Department’s handling of the insurrection on January 6, 2021, as anything other than appalling. Nearly a year and a half later, despite more than 800 indictments of individuals involved in the assault on the Capitol, no charges have yet been filed against either former President Donald Trump or any of his close allies who helped plan, fund, and execute the attempt to overturn the results of the 2020 election. Instead, Attorney General Merrick Garland appears to have thrown up his hands in defeat, as if to suggest that the controversy around holding Trump and his associates accountable has simply been more than he can handle.

From law schools, lawyers, and legal theorists have called for the Justice Department to face that threat to democracy and act have only grown louder. In March, for instance, Harvard law professor Laurence Tribe and former federal prosecutor Dennis Aftergut urged Garland to appoint a special prosecutor to investigate the former president based on evidence already presented in other lawsuits. No such appointment has yet been forthcoming.

To underscore the mounting evidence in the public record against those former officials, Ryan Goodman, Mari Dugas, and Nicholas Tonckens at Just Security played prosecutor (as Garland hasn’t) and laid out their own timeline of dozens of incriminating acts, beginning a year before the riot, that could collectively justify charges against Trump and crew of incitement to violence. In April, according to New York Times reporters Michael Schmidt and Luke Broadwater, the House Select Committee to Investigate the January 6th Attack on the United States Capitol had “concluded that they have enough evidence” to make a criminal referral about the former president to the Justice Department, though they have yet to vote to do so. Meanwhile, a federal judge in California ruled in a civil suit that Trump “likely attempted to obstruct the joint session of Congress” meant to certify Joe Biden’s electoral victory, adding that “the illegality of the plan was obvious.”

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Sadly, the Teflon coating on Trump and his associates has been striking. After all, in January, the House Select Committee voted to back contempt charges against former White House Chief of Staff Mark Meadows for refusing to comply with a subpoena for his testimony. To date, however, Attorney General Garland hasn’t followed up. More recently, the House Select Committee voted to hold in contempt former White House advisers Peter Navarro and Dan Scavino for a similar refusal to comply with subpoenas. The results will likely be the same.

Even where there has been some willingness to indict, the courts have been remarkably stymied when it comes to forward momentum on cases involving Trump’s crew. In November, for instance, Steve Bannon, one-time senior aide to the president, was indeed indicted on contempt of Congress charges for his refusal to respond to subpoenas from the House Select Committee. Bannon promptly pushed back, arguing that longstanding Justice Department memos held former presidential advisers immune from such congressional subpoenas. In March, a federal judge finally asked to see those memos. And so it goes — and goes and goes. And as time passes, so, too, does the likelihood that justice will ever be done.

As for the former president’s business affairs involving the Trump Organization, the process has faltered in a remarkably similar fashion. Earlier this year, Manhattan District Attorney Alvin Bragg dropped an investigation of the former president. He was reportedly convinced that, in the end, he wouldn’t be able to prove that Trump and his closest employees were motivated by theft when they lied about the value of his businesses. Bragg decided not to pursue charges against Trump despite the aggressive efforts of his predecessor, Cyrus Vance, to uncover just such a record and the opinion of a respected lawyer brought in to shepherd the investigation through who, in an outraged letter of resignation, insisted that Trump had indeed committed “numerous [financial] felony violations.” (It had taken Vance years and a Supreme Court decision just to get the company tax records for his case against Trump.)

In early May, a grand jury that had been convened to consider charges against Trump expired. Now, it seems that New York State Attorney General Letitia James’s efforts to bring charges of fraud could crumble as well.

Of course, even a president who tried to mount a coup to cancel the results of an election should be able to avail himself of the American system’s legal protections and defenses. That said, in failing to hold Trump accountable for more or less anything, a message is being sent about justice in this century: that accountability is just not in the cards for American officials who commit crimes. (Of course, one can still hope that the special investigative Georgia grand jury just seated to look into Trump’s possible attempts to disrupt the 2020 election in that state might prove more effective, but I wouldn’t hold my breath.)

Police Murders

Sadly enough, the incapacity of the courts and the legal system to administer accountability for terrible crimes is a phenomenon that’s hardly reserved for Washington politicians and their aides. Abuses of power throughout the country are regularly being overlooked, notably in the mounting examples of police killings of unarmed Black men and women. Across the U.S., courts have repeatedly proven unable to hold accountable police perpetrators whose racist actions had been videotaped and witnessed. Though there have been rare exceptions as, for instance, in the case of the killing of George Floyd, where police officer Derek Chauvin was found guilty of murder and three police officers were convicted of “violating his rights,” the impunity of so many policemen accused of killing Blacks has become a theme of American life. The list is long. Prosecutors in Kenosha, Wisconsin, for instance, decided not even to file charges against the officer who shot and paralyzed Jacob Blake in August, 2020; none of the police who stormed into Breonna Taylor’s house in Louisville, Kentucky, in March 2020 and killed her for doing nothing whatsoever were even charged; and no policemen in Minneapolis earlier this spring were held accountable for shooting and kililng Amir Locke. And that’s just to begin a list that goes on and on.

The War on Terror

And let’s face it, when it comes to the slow erosion of justice and accountability in this country, there’s nothing new or simply Trumpian about that. In fact, there’s been a slow erosion of the viability of the mechanisms of justice and accountability for all too long. For two decades now, the offshore American prison at Guantánamo Bay, Cuba, has stood as a stunning symbol of American injustice, as well as of the inability to convict anyone for the attacks of 9/11 (as opposed to simply holding them endlessly in prison cells offshore of American justice). Nor has there been the slightest accountability for public officials, from the president on down, who gave the green light to a wholesale torture program at CIA “black sites” around the world. Nor, for that matter, were President George W. Bush, Vice President Dick Cheney, and other top officials of their administration ever held accountable for knowingly relying on a lie — the supposed existence of weapons of mass destruction in Saddam Hussein’s Iraq — as a pretext for invading a distant land.

For Bush, it was a matter of embracing horrifying misdeeds in the name of national security. For Barack Obama, it was a matter of not wanting to spend the political capital required to hold his predecessor accountable. As he famously said in the days leading up to his inauguration, this country needed “to look forward as opposed to looking backward” when it came to the Bush administration’s use of torture and warrantless surveillance in the war on terror. The ability of the CIA to function effectively in the future, he argued, should not be undermined. Merrick Garland’s profound passivity when it comes to January 6th may, in fact, just be an extension of that very philosophy.

So profound has the distaste for pursuing accountability been in these years that administration after administration and Congress after Congress have forfeited any trust in the federal courts even to try those accused of perpetrating the 9/11 attacks, leaving the case instead to the broken and incapacitated military commissions at Guantánamo. What would Perry Mason or Columbo have made of that?

Once Upon a Time

There was a time, not that long ago, when the courts still held accountable those in high office who abused power. A president and an attorney general, for instance, authorized a secret and illicit intelligence unit to spy on the Democratic National Committee, to break into Democratic headquarters, and then to cover-up that very break-in. For this, of course, President Richard Nixon and his top advisers were held accountable in the famous Senate Watergate hearings. Nixon resigned; 40 members of his administration were indeed indicted; many, including top officials, were jailed, among them the president’s chief of staff, his attorney general, his White House legal counsel, and some of his top advisers. Not only were they convicted, but they were found guilty in a timely fashion, the trials and guilty pleas coming within two years of the crime itself.

John Dean, a top Nixon aide convicted of obstruction of justice — he served four months in prison for it — recently made a prediction that underscores the gap between then and now. His testimony at the Watergate hearings had been pivotal in exposing the administration’s cover-up of the break-in. This March, he weighed in on reports that Michael Cohen, Donald Trump’s former lawyer, had on seven occasions visited the offices of Manhattan prosecutors working on the criminal investigation into Trump’s finances. As Dean tweeted then, “From personal experience as a key witness I assure you that you do not visit a prosecutor’s office 7 times if they are not planning to indict those about whom you have knowledge. It is only a matter of how many days until DA Vance indicts Donald & Co.”

And yet the days went by and nothing happened until the case was dropped. Dean had miscalculated in thinking that the past was relevant to the present.

Still, is there any hope that, in the long run, he might prove correct? After all, New York Attorney General Letitia James has not yet dropped her possible case against Trump and his company. Better yet, recently a New York supreme court justice found the former president in contempt of court for failing to comply with a subpoena to produce documents from his personal files. His initial appeal having failed, he’s being penalized $10,000 a day until the records are turned over.

So, between New York and Georgia,hope, however minimal, remains when it comes to holding Donald Trump accountable for something. Still, there’s so much more at stake than the case of one president, many police officers, or even an ever more partisan and political Supreme Court. Whether most Americans realize it or not, the future legitimacy of the courts themselves are now in play. Without a functioning court system, one that can stand up effectively to illegal political machinations, as well as partisan and ideological attacks, the law belongs solely to those in power.

And it’s not just here at home that the legitimacy of the courts is coming into question. In the international context, too, the potential anemia of criminal courts is being challenged by the war in Ukraine. Calls for bringing war-crimes charges against Russian President Vladimir Putin and members of the Russian military have been persistent. Reports of summary executions, the targeting of civilians, and mounting evidence of cruelties and atrocities have led to multiple accusations of violations of the laws of war. The chief prosecutor at the International Criminal Court (ICC) in the Hague has already joined with the European Union to conduct an investigation into possible war crimes. But as many experts have pointed out, it’s hard to say how long that investigation might take and whether or not charges will ever be leveled, no less brought effectively to bear. In this regard, Washington’s failure to hold its officials accountable in the past or even to join the ICC should be noted.

And that’s just one more arena where, on a planet increasingly pushed to the brink, the rule of law may prove to be ever more of an aspiration and ever less of a reality.

At the moment, we find ourselves at an all-too-dangerous crossroads. Without our courts and the system of law they represent being truly functional, citizens could be left to settle things for themselves in true Trumpian fashion. In the international context, war defies the courts and the rule of law. In the domestic context, unregulated violence plays a similar role. As it stands now, when it comes to our system of justice, its veneer of effectiveness is wearing ever thinner.

Merrick Garland and other Americans would do well to consider that it’s not just the cases before our courts that are at issue, but the future viability of the institutions of justice themselves. In the world we now find ourselves in, the very idea of a Perry Mason could prove all too once upon a time.

Copyright 2022 Karen J. Greenberg

Via Tomdispatch.com

( Tomdispatch.com ) – Fox News anchor Tucker Carlson excused one of the leaders of the extremist Oath Keepers organization implicated in the January 6th insurrection by describing him as “a devout Christian.” It’s safe to surmise that he wouldn’t have offered a similar defense for a Muslim American. Since September 11th, and even before that ominous date, they have suffered bitterly from discrimination and hate crimes in this country, while their religion has been demonized. During the first year of the Trump administration, about half of Muslim Americans polled said that they had personally experienced some type of discrimination.

No matter that this group resides comfortably in the American mainstream, it remains under intensive, often unconstitutional, surveillance. In contrast, during the past two decades, the Department of Justice for the most part gave a pass to violent white supremacists. No matter that they generated more terrorist attacks on U.S. soil than any other group. The benign insouciance of the white American elite toward such dangerous fanatics also allowed them to organize freely for the January 6th assault on the Capitol and the potential violent overthrow of the government.

Donell Harvin was the chief of homeland security and intelligence for the government of the District of Columbia in the period leading up to January 6th. He assured NBC News’s Ken Dilanian that the FBI and the Department of Homeland Security seemed completely oblivious about the plans of white supremacist hate groups to violently halt the certification of Joe Biden’s presidential victory, despite plentiful evidence on social media that they were preparing to bring weaponry to the Capitol.

Consider now the treatment that the very same agencies offered distinctly inoffensive Muslim Americans. Rutgers law professor Sahar Aziz has argued that many white Americans see Muslims not merely as a religious group but as a racial one and have placed them on the nethermost rung of this country’s ethnic hierarchy. Muslim Americans are regularly, for instance, profiled at airports and subjected to long interrogations. Over many years, the New York City Police Department gathered intelligence on more than 250 mosques and student groups. The FBI even put field officers in mosques not only to spy on, but also to entrap worshipers who, alarmed by their wild talk, sometimes reported them to… the FBI.

Aziz notes that Donald Trump campaigned in 2016 to register all Muslim Americans in a database, institute widespread surveillance of mosques, and possibly exclude Muslims from the country. Even non-governmental far-right groups like discredited ex-journalist Steve Emerson’s “Investigative Project on Terrorism” have spied on Muslim Americans. As with everything else in the contemporary U.S., a partisan divide has emerged regarding them, with 72% of Republicans holding the self-evidently false belief that Muslims are more likely to commit violence than adherents of other faiths, while only 32% of Democrats say this.

Apparently, though, our concern over the potential commission of violence in this country should actually focus on Republicans. A recent Washington Post-University of Maryland poll found that 34% of Americans now believe that violence against the government is sometimes justified, a statistic that rises to an alarming 40% among Republicans. In other words, this country’s worries about violence should be focused most on the right-wing extremist fringe, exemplified by groups like the Oath Keepers, 11 of whose leaders were arrested by the FBI in mid-January for “seditious conspiracy” in their paramilitary invasion of the Capitol in 2021. More people have perished in political killings in the past 20 years here at the hands of far-right radicals than those of any other group, including extremists of Muslim heritage. Still, this country’s security agencies continue their laser focus on monitoring Muslim Americans, even as they grossly underestimate the threat from white supremacists.

Collectively Punishing Muslim Americans

What most characterizes the American Muslim community, which at nearly four million strong makes up more than 1% of the population, is diversity. It includes white and Hispanic converts, African Americans, Arab Americans, and South-Asian Americans whose families hailed from the Indian subcontinent. Three American Muslims are serving in Congress and even President Trump appointed a Moroccan-born American immunologist, Moncef Slaoui, to head Operation Warp Speed that produced the Moderna vaccine for Covid-19. Last summer saw the confirmation of the first Muslim-American federal judge and President Biden has just nominated the first Muslim-American woman to the federal bench. There are also striking numbers of Muslim-American peace activists, either with their own organizations or involved at interfaith centers, as well as many environmentalists and community organizers, but the media and academics seldom focus on this dimension of the religion.

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In my new book, Peace Movements in Islam, my colleagues and I did something remarkably rare in these years: we explored this peaceful dimension of the faith of a fifth of humankind. We focused, for instance, on the Muslims active alongside Mahatma Gandhi in nonviolent noncooperation to end British colonial domination of India. Closer to home, contributor Grace Yukich explores the Muslim-American reaction to the rise of the virulently Islamophobic Trump administration and finds that many responded by promoting the progressive dimensions of their faith, while working against racism and for the rights of immigrants and the poor.

Polling supports her findings, with 69% of Muslim-American respondents saying that working for justice forms an essential part of their identity, nearly the same as the 72% who say that loving the Prophet Muhammad is essential to being a Muslim. In addition, 62% see protecting the natural environment as a key to Muslim identity. The majority of them, in other words, are religiously open-minded. Some 56% of Muslim Americans, for instance, believe that other religions can be a path to salvation. In contrast, only a third of evangelical Christians take a similar position when it comes to religions outside the Judeo-Christian tradition.

And here’s a seldom-recognized reality in this country: Muslims form a longstanding and important thread in the American tapestry, having been in North America for centuries. Rabbinical Judaism, Christianity, and Islam all arose on the fringes of the Roman Empire between the first and seventh centuries of the common era. All believe in the one God of Abraham, as well as in the biblical patriarchs and prophets. All forbid murder, robbery, and other violent crimes. There are no objective grounds for a United States that recognizes the first two to deny legitimacy to the third.

Muslim-American numbers have increased dramatically since, in 1965, Congress changed formerly racist immigration laws to abolish country quotas that favored northern Europeans. Some 75% of the Muslim Americans here are now citizens. The 9/11 attacks, however, turbocharged hatred of this group, unfairly associating them in the minds of many Americans with violence and terrorism, even though all the hijackers were foreigners and differed starkly in their political and ethnic backgrounds from those of most Muslim Americans. Unlike whites, who suffer no reputational damage from being of the same race as violent white supremacists, Muslim Americans have been collectively punished for bad behavior by any of them or even by foreign coreligionists. While a small number of Muslim Americans have succumbed to the blandishments of radical Muslim ideologies, it has been vigorously rejected by all but a few.

The same cannot be said of white nationalists for whom radicalism stands at the core of their identity, while a disturbing strain of poisonous racism runs through their activities. The 11 leaders of the Oath Keepers arrested in mid-January for seditious conspiracy had stockpiled heavy weapons and coordinated with rapid-response teams pre-positioned outside Washington, D.C., whom they hoped to call on, apparently after they invaded the halls of Congress. According to the indictment, the leader of that 5,000-strong organization, Elmer “Stewart” Rhodes, wrote on its website on December 23, 2020, “Tens of thousands of patriot Americans, both veterans and non-veterans, will already be in Washington, D.C., and many of us will have our mission-critical gear stowed nearby, just outside D.C.”

Rhodes, who spent thousands of dollars on weaponry in December and January, said in an open letter that he and others may have to “take to arms in defense of our God given liberty.” Oath Keeper chapters around the country conducted military training exercises with rifles. Indicted Alabaman Oath Keeper Joshua James, 33, texted on the Signal messaging app, “We have a shitload of QRF [Quick Reaction Forces] on standby with an arsenal.” They were concerned, though, that during the planned civil disturbance, authorities could close the bridges from Virginia (where they had holed up in motels with their assault rifles) into D.C. A QRF team leader from North Carolina wrote, “My sources DC working on procuring Boat transportation as we speak.” Kelly Meggs of Florida, another Oath Keeper leader, sent messages worrying about running out of ammunition: “Ammo situation. I am checking on as far as what they will have for us if SHTF [the shit hits the fan]. I’m gonna have a few thousand just in case. If you’ve got it doesn’t hurt to have it. No one ever said shit I brought too much.”

On the morning of January 6th, one of the organization’s leaders, 63-year-old Edward Vallejo of Phoenix, Arizona, discussed the possibility of “armed conflict” and “guerrilla war” on a podcast. On the day itself, members of the Oath Keepers formed paramilitary “stacks” in front of the Capitol to invade it in formation. They were, however, foiled when some Capitol police delayed them by holding the line against thousands of angry, determined fanatics, while others whisked most members of Congress away to secure locations inaccessible to the mob. Before they were rescued, some representatives lay on the floor, weeping or praying. In other words, the American far right came much closer to overthrowing the U.S. government than al-Qaeda ever did and, at the same time, resembles al-Qaeda far more than Republican lawmakers are ever likely to admit.

Ignoring White Nationalists

The Oath Keepers, like the Boogaloo Bois and other far-right groups central to the insurrection, do not so much have an ideology as a mental cesspool of conspiracy theories and imaginary grievances. Typically, in December 2018, according to the Southern Poverty Law Center, Oath Keeper founder Stewart Rhodes spoke of asylum-seekers at the border with Mexico as a “military invasion” by “cartels” and part of a “political coup” by the domestic Marxist left. He also managed to blame Muslims and the late Senator John McCain for provoking crises that would leave this country’s borders “undefended.”

Extremists on the white nationalist right have been a known quantity to American law enforcement for decades and have committed horrific acts of violence like Timothy McVeigh’s 1995 truck-bombing of the Murrah Federal building in Oklahoma City, which killed 168 people and wounded more than 800. Unlike Muslim Americans, however, they have been cut remarkable slack.

The Republican Party has had a longstanding and chillingly effective policy of downplaying the dangers of extremist white nationalists. No surprise there, since the GOP depends on the far-right vote in elections and on financial contributions from well-off white supremacists who hate the multiracial Democrats. In 2009, analyst Daryl Johnson of the Department of Homeland Security in the newly installed Obama administration produced a confidential report for law enforcement suggesting that right-wing extremism posed the biggest domestic threat of terrorism to this country. Republicans in Congress leaked it and then, along with right-wing media like Fox News, went ballistic.

House minority leader John Boehner (R-OH) said at the time:

“[T]he Secretary of Homeland Security owes the American people an explanation for why she has abandoned using the term ‘terrorist’ to describe those, such as al-Qaeda, who are plotting overseas to kill innocent Americans, while her own Department is using the same term to describe American citizens who disagree with the direction Washington Democrats are taking our nation.”

According to Johnson, the Obama administration caved to this campaign:

“Work related to violent right-wing extremism was halted. Law enforcement training also stopped. My unit was disbanded. And, one-by-one, my team of analysts left for other employment. By 2010, there were no intelligence analysts at DHS working domestic terrorism threats.”

One can imagine that under Trump such groups received even less government scrutiny, since one of their fellow travelers had ascended to the White House.

The refusal of the Washington establishment to take the menace of far-right white nationalist movements seriously has been among the biggest security failures in this country’s history. The collusion of mainstream Republicans who have, in essence, run interference for such dangerous, well-armed conspiracy theorists has stained the party of Lincoln indelibly, while the participation of active-duty military and police personnel in these groups poses a dire threat to the Republic.

At the same time, this country’s security agencies failed epically in their treatment of Muslim Americans after the 9/11 attacks by infringing on their civil liberties, while abridging or disregarding constitutional protections for millions of innocent people. Faiza Patel, co-director of the Brennan Center for Justice’s Liberty and National Security Program, points to congressional reports that question the value of all this monitoring of an American minority, not to speak of the absurdities it has entailed. As she put it, “Often, the reports singled out Muslims engaged in normal activities for suspicion: a [Department of Homeland Security] officer flagged as suspicious a seminar on marriage held at a mosque, while a north Texas fusion center advised keeping an eye out for Muslim civil liberties groups and sympathetic individuals and organizations.” In such a world, even Muslim Americans active in peace centers become inherently suspicious, but heavily armed white nationalists in motels just outside Washington aren’t.

Copyright 2022 Juan Cole

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One of the most brazen recent examples is in Tennessee, where the Republican-dominated legislature recently proposed re-districting Nashville and Memphis, to break up their solidly Democratic congressional districts, and conjoin them with white suburban and rural areas to create new Republican majorities. https://dailymemphian.com/section/metrostate-government/article/26677/redistricting-tennessee-legislature-district-lines-us-house-of-representatives?utm_source=email_edition&utm_medium=email&utm_campaign=morning_2022-01-25

This change means that Rep. Steve Cohen (D-TN) and Jim Cooper (D-TN), who represent Memphis and Nashville respectively, will have to face Republican challengers with the support of tens of thousands of newly anointed Republicans in their re-districted constituencies. They are the only two Democrats in the Tennessee congressional delegation, after Democrats in Chattanooga and Knoxville were gerrymandered out in prior campaigns.

The same thing already happened in Michigan, Wisconsin and Pennsylvania, which enabled Donald Trump to win in 2016, despite Republicans being a minority in those states. Similar efforts are underway in North Carolina, Texas, Ohio and of course Georgia. https://www.theguardian.com/us-news/ng-interactive/2021/nov/12/gerrymander-redistricting-map-republicans-democrats-visual According to the Brennan Center for Justice, 20 states have enacted 34 laws intended to make it harder for minorities to vote.

The sabotage of the John Lewis Voting Rights Act and Freedom to Vote Act by Democratic Senators Kyrsten Sinema (D-AZ) and Joe Manchin (D-WVA) may be the death knell of free and fair elections in the United States. Sinema put on one of the most foul and disingenuous displays of phony indignation, when she tacitly endorsed the importance of free and fair elections, but then launched into an ugly rant about how important the filibuster is to preserving the integrity of the Senate, and therefore Democracy in America.

Oh please girl; you’ve got it all backwards. The filibuster has been used as an opaque cover to suppress minority voting rights since before Martin Luther King, Jr. called it out in 1963 saying, “I think the tragedy is that we have a Congress with a Senate that has a minority of misguided senators who will use the filibuster to keep the majority of people from even voting.” Nearly 50 years later, we’re back to Square One in the wake of Donald Trump’s presidency. His legacy was the “all-clear” signal for bigoted people in America to come out, and act out all their repressed fantasies and frustrations since the original VRA passed in 1965.

Republicans, with the support of Manchin and Sinema, have characterized (slandered) the national effort to secure elections as “federal interference in state run elections.” That “states’ rights” thing is a slippery slope. States that used to argue for preservation of slavery, then Jim Crow and other oppressive legislation, now argue it is a state’s right to decide which sectors of a city or county may vote freely. The Justice Department got involved in local elections under Attorney General Robert Kennedy in the early 1960’s. The original Voting Rights Act of 1965 mandated Justice Department “pre-clearance” (approval) of any changes to everything from the number of polling places, hours of operation and other metrics.

The intent of the Lewis and Freedom to Vote Act is to overturn newly enacted voter-suppression laws in Republican states, by implementing new national standards that prevail over these state laws, designed to suppress minority voting. It would also restore the ability of the Justice Department to monitor and police states with histories of discrimination, which was wiped out by the Supreme Court in 2013 with their in Shelby County vs. Holder decision, and last year with Brnovich vs. the Democratic National Committee. The Freedom to Vote Act would expand voter registration efforts and better ensure voting access, while making it harder to remove voters from the eligibility list. It would also make Election Day a federal holiday.

Sinema earned praise from Senate Minority Leader Mitch McConnell for her phony indignation in support of McConnell’s Black vote suppression agenda. He said, “It was extraordinarily important and [Sinema] has, as a conspicuous act of political courage, saved the Senate as an institution.” Oh please! As if preserving a legislative tool designed by and FOR the comfort of slave-driving plantations has equal importance to the sacred right of all Americans to vote in free and fair elections.

Dispensing with the filibuster will not compromise the “Senate as an institution.” It will only increase the possibility of bringing in more thoughtful women and POC’s into that aging White Man’s Club, and that is what McConnell and Trump are fearful of. McConnell wants to preserve the Senate’s right to manipulate which SCOTUS nominees even get a hearing, and which nominees can be bulldozed through against other Senate customs and rules. It’s another vertigo-inducing rabbit hole, where anything not backwards is upside down.

Previously, I discussed the Republican “business plan” to stock local offices, state election boards and secretary of state offices with candidates loyal to Trump’s Stop the Steal madness. https://www.juancole.com/2021/12/insurrection-republican-government.html Trump still OWNS the Republican Party, where devotion to the Stop the Steal myth is a requirement for any Republican running for public office at any level. Honest Republicans, a vanishing breed, have been tormented and punished by Trump for upholding election results and refusing to cave to his intimidating demands such as, “find 11,700 votes.” Trump has prompted death threats against honest public officials who refuse him, and mustered an army of millions determined to rig state and local elections in perpetuity.

The current Supreme Court has been a willing accomplice to voter suppression efforts in recent years, most notably with the 2013 decision on Shelby County vs. Holder in North Carolina. The crux of Shelby County vs. Holder was that Section 4(b) of the 1965 VRA was unconstitutional because the formula was based on 40 year-old data. Sadly, the prompt for challenging the 1965 VRA never abated, and has escalated with the Stop the Steal fictions. The VRA of 1965 came about during a violent and dramatic time in American History. President Lyndon Baines Johnson signed it into law that August, to expand, protect and enforce the protections established by the14th and 15^th Amendments. That legislation was a direct response to the violence of that summer, which saw four black girls murdered in the bombing of a Black Birmingham church.

In July 2021, the Supreme Court made it even more difficult to challenge laws that suppress voting rights under Section 2 of the VRA, with their Brnovich v. Democratic National Committee decision. In that ruling, the Court literally moved the goalposts back, creating new guidelines for determining Section 2 claims. The new SCOTUS standard used data from 1982, when Section 2 was last amended, to argue that Arizona offered more voting opportunities in recent years than 1982. This ruling ignored more current and cogent data, such as the number of polling places recently closed in minority areas and other brazen discrimination.

The John Lewis Voting Rights Act would renew and strengthen the VRA with stronger legal protections against discriminatory voting policies and partisan redistricting. It would restore what the Supreme Court struck down in the 2013 Shelby County decision, by creating a new formula to determine which jurisdictions with a history of voting discrimination are subject to preclearance by the Justice Department. It would also add a practical coverage element, giving the Justice Department expanded jurisdiction in areas with a history of voting discrimination. Finally, it would also restore the original Section 2 provision of the 1965 VRA, in response to Brnovich, namely the right to issue legal challenges to visibly discriminatory voting practices in states with a history of same. This is what Senators Manchin and Sinema are resisting with greater force than the vortex of Republican hysteria.

As the Republican Party has become more and more inflected by white nationalism, its officials have begun attempting to undo the gains of the Civil Rights Movement led by the Rev. Martin Luther King, Jr., which ended the Deep South’s practices of segregation and denying the vote to African-Americans. The Republican-captured Supreme Court, now also an instrument of white nationalism and corporate supremacy, struck down in the 2013 ruling Shelby County v. Holder the oversight provisions of the 1965 Voting Rights Act.

The Southern states initiated a gold rush to restrict the right to vote with new tactics, rather than the old literacy tests, using voter ID requirements and reducing the number of polling stations in heavily minority counties.

The Brennan Center for Justice writes of 2021,

“Between January 1 and December 7, at least 19 states passed 34 restrictive laws. The restrictive laws make it more difficult for voters to cast mail ballots that count, make in-person voting more difficult by reducing polling place hours and locations, increase voter purges or the risk of faulty voter purges, and criminalize the ordinary, lawful behavior of election officials and other individuals involved in elections.”

There are two bills in Congress that would roll back the sinister and reactionary laws passed by Republican statehouses. The John Lewis Voting Rights Act would restore Department of Justice preclearance oversight of election laws in states with a tradition of suppressing the Black vote. The Freedom to Vote Act requires early voting days, no-excuse mail voting, and other provisions that protect this essential right from the provincial blowhards now tinkering with it.

Because all fifty Republican senators oppose both of these bills, they can’t get past the Senate’s 60-vote threshold to close off filibustering and allow a floor vote. Because two Democrats, Sens. Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV) oppose a carve-out of the filibuster for voting rights, the President cannot get the legislation he backs passed.

CNN explains that in the late 1700s, the Senate could vote to end debate on a bill and bring it to a floor vote by a simple majority. Even in the twentieth century, a filibuster to prevent a vote required the senator to stay on the floor speaking with no food or bathroom breaks. The current 60-vote rule for cloture or ending debate only dates from 1975, and from that time it was permitted to filibuster by simply registering an objection to cloture, rather than physically speaking at the podium.

One possible way forward for the Democrats is to go back to requiring senators to filibuster in person.

As we honor Dr. King today, it is worth remembering what he said about the filibuster:

“I think the tragedy is that we have a Congress with a Senate that has a minority of misguided senators who will use the filibuster to keep the majority of people from even voting. They won’t let the majority senators vote. And certainly they wouldn’t want the majority of people to vote, because they know they do not represent the majority of the American people. In fact, they represent, in their own states, a very small minority.”

As for voting rights, they were at the heart of King’s campaigns of civil disobedience. He said in Montgomery, Alabama in 1956,

“We must continue to gain the ballot. This is one of the basic keys to the solution of our problem. Until we gain political power through possession of the ballot we will be convenient tools of unscrupulous politicians. We must face the appalling fact that we have been betrayed by both the Democratic and Republican parties . . . Until we gain the ballot and place proper public officials in office this condition will continue to exist. In communities where we confront difficulties in gaining the ballot, we must use all legal and moral means to remove these difficulties. We must continue to struggle through legalism and legislation. There are those who contend that integration can come only through education, for no other reason than that morals cannot be legislated. I choose, however, to be dialectical at this point. It isn’t either education or legislation; it is both legislation and education.”

If voting rights keep being endangered, nonviolent noncooperation on a mass scale may well reemerge.

King said of the boycotts, marches and other campaigns of the Indian freedom struggle in British colonial India,

“I had heard of Gandhi, but I had never studied him seriously. As I read I became deeply fascinated by his campaigns of nonviolent resistance. I was particularly moved by the Salt March to the Sea and his numerous fasts. The whole concept of “Satyagraha” (Satya is truth which equals love, and agraha is force: “Satyagraha,” therefore, means truth-force or love force) was profoundly significant to me. As I delved deeper into the philosophy of Gandhi my skepticism concerning the power of love gradually diminished, and I came to see for the first time its potency in the area of social reform.”

The ballot and education are necessary for achieving social and racial justice. But where these are blocked, the truthforce may be brought into play. And in this moment, all of us are in danger of being robbed of the franchise, of the validity of our votes, by corrupt and tyrannical Trumpists. It isn’t just the African-Americans who face a new Jim Crow.