Political Animal

Republicans Have Already Packed the Courts. It’s Up To Democrats How To Rebalance Them.

The last few days have seen sudden, intense press interest in the question of whether Joe Biden intends to “pack the courts.” The question came up at the vice-presidential debate between Vice-President Pence and Senator Harris, and it seems that Biden gets asked about it repeatedly at every press avail. For their part, Biden and Harris have mostly been playing coy with the answer, insisting that it’s an irrelevant question that shouldn’t come up until after the election.

It’s no great secret why: “packing” the court might scare off moderates currently leaning toward Biden, while committing against it would infuriate progressives who fear that a far-right Supreme Court would reverse a century of hard-won victories as well as stymie all future attempts at progressive legislation.

The problem, however, is that the entire conversation is in bad faith. It is Republicans who have spent the last six years “packing” the courts. Republicans in the Senate mounted a historic blockade of President Obama’s judicial nominees during the final two years of his second term, resulting in shortages on federal benches and backlogs in cases, all in the hopes of leaving them open for a Republican president. Republican Senate Leader McConnell has been laughing about it for years, considering it finest accomplishment. Most crucial was the refusal by McConnell to even allow a hearing for Obama’s Supreme Court nominee Merrick Garland, using the fig leaf justification that it was during the 2016 election year–only to attempt to rush through a far-right justice to replace Ruth Bader-Ginsburg literally just days before the 2020 election. Hypocrisy is a mainstay of American politics, but even so the brazenness of this case by Republican Senators like Lindsey Graham is remarkable.

The result of the Republican strategy has been a historic packing of the courts by ultra-conservative activist judges. As of this writing, Trump and the Republican Senate have confirmed an astonishing 218 federal judges, mostly conservative white men, many of them deeply unqualified far-right activists with little judicial experience. These judges have altered the balance not only of the Supreme Court, but also myriad lower circuit courts. These judges are not just temperamentally and philosophically conservative: most are committed Republican partisans, approved by the arch-right Federalist Society, and subscribe to a view of the Constitution in Exile premised on the belief that essentially every progressive reform since the New Deal and even Teddy Roosevelt has been an unconstitutional infringement on corporate and property rights. It is a degree of far-right judicial radicalism that most Americans barely begin to appreciate, only because the cases challenging long settled law have only just begun to wind their way through the courts.

The other important context for this Republican court-packing is that it reflects an attempt to control national policy even as conservatives lose the ability to win elections nationally. Conservatives already govern illegitimately through an array of anti-democratic structures that make white exurban conservative voters count much more than urban liberal voters and people of color. Many of these structures were explicitly set up by the Founders or in the Jim Crow era to benefit Slave States and former Confederate States. The electoral college has allowed Republicans to control the White House for 12 of the last 20 years despite winning the popular vote only once during that time–and the process itself warps presidential elections toward the interests of more conservative-leaning voters in “swing” states. The Senate is controlled by a Republican “majority” despite the fact that Democratic Senators represent 15 million more Americans than Republican Senators do. State legislatures and House seats are gerrymandered such that Republicans dominate many state legislatures despite losing the statewide vote, and control more House seats than they would if districts were drawn across the country in non-partisan fashion. That’s on top of active voter suppression efforts in many states that work to shut out the rising voices of young people, urban progressives and people of color.

The fact that a president elected by minority vote, aided by a Senate representing a minority of Americans, in a system already designed to advantage conservative voices over liberal ones, should be able to rig the courts for decades with judges who will not only thwart future legislation but reverse hard-won gains, is an absurd insult to democracy. The courts have already been packed. If Barrett is confirmed to the Supreme Court, they will have been intolerably packed, in the service of a revanchist apartheid regime designed to overrule America’s growing progressive majority and prevent it from solving pressing crises like inequality, corporate consolidation and climate change.

The question for Democrats and a potential Biden/Harris administration is not whether to “pack” the Courts; they have already been packed. The question is how to rebalance them. Biden put it succinctly today when he said that “the only court packing going on right now is with Republicans packing the court.”

Rebalancing the court could take many forms. The simplest is adding justices to both the Supreme Court and the lower courts, something that has been done many times in American history. This solution is Constitutional and easy to enact by a simple majority. Many fear that this could lead to runaway partisan court-stacking in future years, but even so it would only be possible when one party controls the White House, Senate and House. As long as the courts remain key to legislation, it seem reasonable that a party that wins all three should be able to control the courts as well until the other side takes similar control. If Republicans fear that they will never again control all three, then they may wish to attempt to cater their politics toward winning national majorities instead of extremist minorities.

Other more complicated solutions involve potential term limits for justices or judicial rotations. All of these ideas and more should be on the table as a way to rebalance the judiciary to fix conservative court packing.

But Republicans should not be allowed to get away with packing the courts with extremists, then scaring voters into thinking that Democrats are the ones with radical proposals. And the press should not get sucked into being willing accomplices. Whatever Democrats must do to rebalance the courts will be an important discussion for after the election, should Democrats be successful. For now, the focus should remain on the shameful methods by which the radical conservative movement is attempting to further pack the courts at this very moment.

How Many Republican Senators Have COVID-19? They Won’t Say.

There comes a point in most heist movies where the thieves’ plan seems to be coming off the rails. Each individual starts improvising and stonewalling in the hope that, with a bit of luck and scamming, it all comes off in the end. Sometimes it all works out in circumstances defying belief. But sometimes it doesn’t–with catastrophic consequences.

That is the moment Republican Senators find themselves facing in the attempted heist of the Supreme Court. McConnell’s Senate is confronting two simultaneous pressures: the first, to jam through the nomination of far-right Amy Coney Barrett at some point before Election Day; the second, to avoid being shut down by the COVID crisis engulfing top-tier Republicans in Washington, D.C.

With only a 12-10 majority on the Senate Judiciary Committee and a 53-47 majority in the body, Republicans cannot afford many losses, or the plot unravels. Donald Trump’s super-spreader event at the White House Rose Garden to celebrate the judicial coup has already infected Judiciary Committee members Thom Tillis (R-SC) and Mike Lee (R-UT). Wisconsin Republican Ron Johnson also reported testing positive on earlier this month. Though both Judiciary Committee members claim to be improving and now symptom-free, guidelines recommend quarantining for at least 10 days since symptoms first appeared. But those guidelines are not guarantees of safety: per the CDC, infected individuals can continue to shed the virus in upper respiratory specimens for up to 3 months after the onset of symptoms (though with reduced viral loads.) It is unclear whether Senators Lee or Tillis will be able to return in time to confirm Barrett. Meanwhile, other members of Congress and staff are increasingly reporting positive tests.

Given the precariousness of their situation, other GOP Senators are taking extraordinary risks: they either refuse to be tested or refuse to report the testing. While a few GOP Senators are being tested without incident, many are not. Iowa’s 87-year-old Senator Chuck Grassley refuses to take a COVID test even after direct contact with Senator Lee. South Carolina Senator Lindsey Graham has forced debate planners to switch formats in his debate with challenger Jaime Harrison–one of the closest Senate contests in the country–because he refuses to test for the virus. Many other GOP senators refuse to get tested or state the date of their last test, including Senate Majority Leader McConnell himself. Grassley’s case is particularly concerning because he is not only a Senate Judiciary Committee member but third in line for the presidency behind Trump if the worst should befall Trump, Pence and Pelosi–an event not entirely beyond the realm of possibility.

Some of these senators are using the fact that they have not been in contact with COVID-positive members and staff as an excuse. But the reality is that due to lack of universal testing and the Trump administration’s refusal to allow contact tracing, it is impossible for them to know if that is the case. Some younger senators may get COVID and remain symptom-free, yet infectious to others. A few senators who are also Judiciary Committee members who have been in contact with infected individuals are self-quarantining, including Ted Cruz (R-TX), Ben Sasse (R-NE), and James Lankford (R-OK). These senators tested negative for COVID before beginning self-quarantine. Still, there have been few reports of testing since then, despite the fact that infection may result many days after initial contact.

Senate Republicans are taking an enormous gamble. They know that just one or two more positive cases among their own could scuttle the entire Barrett nomination. So they are allowing their members to endanger the whole caucus though insufficient testing or refusal to test, praying that none of them get infected–or that if they do, they can stonewall through to take the deciding vote at some point before election day.

For now, McConnell is allowing the Judiciary Committee to continue to meet while delaying the Senate proper. But among the consequences of that decision is that Republicans are preventing passage of a COVID relief bill while continuing to force through the Supreme Court nominee process–a deeply unpopular move that could help seal the fate of the Senate Republican majority.

But if the Senate itself becomes another super-spreader event like the White House Rose Garden event (and indeed, it appears that Ms. Coney Barrett’s children may have spread the virus to their teachers and classmates this week by going in person, even though online classes were available), it could derail the nomination entirely and endanger the lives of everyone involved.

There were already excellent reasons for Senate Democrats to refuse to legitimize the heist of the Supreme Court by simply boycotting the proceedings. The reckless improvisation of Senate Republicans in risking the health of their colleagues and staff by refusing to test for the virus should be the last straw.

Perhaps they will get away with it. Perhaps they won’t. But either way, it courts catastrophe.

The Media Is Spreading Trump’s Lies About Mail-In Voting

At Wednesday’s debate, Mike Pence was asked what he would do if Joe Biden won the election, and Donald Trump refused a peaceful transfer of power. The vice president packaged several lies into one grand evasion of the question. Pence even repeated the right-wing trope that mail-in voting creates “a massive opportunity for voter fraud.” In doing so, he anticipated the lie Trump will likely use to create chaos on November 3.

While fact-checkers have debunked that lie about mail-in voting over and over again, polling shows that nearly half of Republicans believe it is a “major problem.” If Trump can convince a large share of his supporters that mail-in ballots amount to a stolen election, massive civil unrest could follow.

According to a report published earlier this month by Harvard’s Berkman Klein Center for Internet & Society, those poll results stem from Trump himself, his campaign, and the Republican National Committee engaging in a strategic disinformation campaign about mail-in voting. That’s not entirely surprising, but what is alarming is the degree to which the poisonous accusations have been “elite-driven and mass-media led.” 

Our findings here suggest that Donald Trump has perfected the art of harnessing mass media to disseminate and at times reinforce his disinformation campaign by using three core standard practices of professional journalism. These three are: elite institutional focus (if the President says it, it’s news); headline seeking (if it bleeds, it leads); and ​balance​, neutrality, or the avoidance of the appearance of taking a side.

The report assessed how the issue of mail-in ballot “fraud” was being dealt with by mainstream media outlets, right-wing news sites, and social media from late March through August 2020. In just one example, Trump told reporters on April 3 that “a lot of people cheat with mail-in voting.” That tapped into the first and second core standard practices of professional journalism identified in the report: the president publicly said something explosive. 

The Associated Press reflexively demonstrated observed neutrality with its next-day headline that read: “Trump, Dems clash on boosting mail-in voting during the pandemic.” Instead of saying the president was lying, the dispatch framed the issue as a “clash” between Republicans and Democrats over how to vote during a pandemic. It was a classic case of bothsiderism, and being the AP, it was carried pretty much everywhere.

The Berkman Klein Center found that every piece of disinformation about mail-in ballot fraud during that time period originated with the president, his campaign, or the Republican National Committee—with one exception. On April 24, RealClearPolitics published an article by Mark Hemingway, “29 Million Mail-In Ballots Went Missing in Last Four Elections,” which I wrote about at the time. Hemingway based his piece on data from the Public Interest Legal Foundation (PILF), a conservative advocacy organization that has led or joined efforts to purge voter rolls and spread false claims of voter fraud. Hemmingway’s story was picked up by conservative outlets like the New York Post and Gateway Pundit. Tony Perkins, president of the Family Research Council, wrote a similar piece that was syndicated at several right-wing sites. On April 30, Hemingway’s article was tweeted by his wife, Mollie Hemingway, senior editor at The Federalist. Her tweet was then retweeted by Trump the next day.

While news sites like RealClearPolitics and The Federalist were previously considered to be reputable center-right publications, they now engage in the kind of conspiracy-mongering that has infected so much of conservative media during the Trump presidency. 

Here is how the Berkman Klein Center report concludes:

When President Trump concluded his performance in the first presidential debate on September 29, 2020, he reiterated the false claim that mail-in ballots were subject to mass election fraud, and cited this concern to justify his refusal to commit to accepting the results of the election should he be defeated. This assertion capped a six months long disinformation campaign waged by the president and his party against expansion of mail-in voting during the pandemic of 2020. ​There is no disinformation campaign more likely to affect voter participation in the 2020 U.S. election and perceptions of the election’s legitimacy than the repeated false assertion that mail-in voting is fraught with the risk of voter fraud.

Will this strategy work? It only can if the media continue to inject these ideas into the body politic. (Kudos to those like Margaret Sullivan of The Washington Post and our own Eric Cortellessa at The Washington Monthly who are getting the truth out.) It’s little wonder, then, that the report ends with advice for the mass media not to be conned by Trump.

In the coming months, it will be critical for editors of these national and local media…not to fall for the strategy that the president has used so skillfully in the past six months, not to capitulate to the inevitable charges of partisanship that will befall any journalists and editors who call the disinformation campaign by its name, and not to add confusion and uncertainty to their readers, viewers, and listeners by emphasizing false equivalents…

This is a lesson that some, but hardly all, members of the media have learned. In the case of Trump’s disinformation campaign about mail-in ballots, the stakes are too high for journalists to get this one wrong.

What Joe Biden Could Learn From Abraham Lincoln About White-Collar Crime

Elizabeth Holmes. Roger Stone. Michael Cohen. Bumble Bee Foods. Purdue Pharma. Deutsche Bank. They have something in common. Each was charged with white-collar criminal offenses, a category that many consider to be a “victimless” crime. And each has treated prosecution as persecution. This perpetrator-as-victim posture has been fairly successful for affluent individuals and powerful businesses in a criminal justice system that often ignores or erases the actual victims of white-collar crime.

Holmes, a Stanford University dropout who built her endlessly lauded blood-testing firm Theranos into a $9 billion market valuation on a foundation of lies, fawning funders, falsified blood tests and financial reports, settled civil charges with the Securities and Exchange Commission in 2018. Following that, the oft-photographed wunderkind was indicted on multiple counts of wire fraud and conspiracy. She pleaded not guilty and is out on bail, awaiting her criminal trial, which was scheduled to start this October. It’s been indefinitely postponed due to the coronavirus. A close associate revealed that “Elizabeth sees herself as the victim.”

In February, a federal judge sentenced Donald Trump’s longtime ally, Roger Stone, to more than three years in prison after a jury convicted him on seven felony counts, including witness tampering, obstruction, and lying to Congress (a violation of the False Statements Act). These are all go-to-tools for a federal prosecutor where evidence of a more complex crime is well-hidden. Recall that Martha Stewart was convicted of both obstruction and making false statements. She was not even charged with insider trading. In commuting Stone’s sentence this July, the president said that Republican operative was a “victim” of a politically motivated investigation.

This August, the Justice Department demanded $6.2 billion to settle criminal claims against Purdue Pharma related to OxyContin –– the opioid that at one time represented 90 percent of the company’s sales. (Just this week, news broke they are nearing a settlement.) Back in 2007, Purdue and three executives entered guilty pleas for illegally misbranding. The firm pled to a felony and paid a fine, but the managers only to misdemeanors and served no prison time. Purdue continued to push OxyContin, earning more than $35 billion selling the “less addictive” painkiller. The owners, the Sackler family, took home $14 billion. Despite the apparent repeat offending, CEO Richard Sackler claims he has been unfairly “pilloried” by the press.

In June, Christopher Lischewski, the former CEO of Bumble Bee, was sentenced to 40 months in prison and ordered to pay a small fine in connection with a canned tuna price-fixing conspiracy involving rivals StarKist and Chicken of the Sea International. The company also pleaded guilty and agreed to pay a $25 million fine. Lischewski asserted that “I was found guilty of a crime I did not commit and a crime where there is no victim.”

This winter, the president granted clemency to a slew of mainly affluent felons. Their offenses? Bribery, investment fraud, tax evasion, Medicare fraud, public corruption, an extortion cover‑up, money laundering, conspiracy to defraud the federal government, obstruction of justice, mail fraud, wire fraud. The White House announcement used the word “successful” four times to describe those receiving pardons but made no mention of their victims.

Who are the victims?

Let’s start with Holmes. According to the indictment, in one fraud scheme, the alleged victims were Theranos investors, and for the other: doctors and patients. The government described one patient who received a lab report falsely stating that he was HIV-​positive. Another was given a test result that said she was not pregnant, only to learn from another lab that she had a life-threatening ectopic pregnancy. Yet in February, the judge ruled that allegations that Holmes had defrauded doctors could not go forward. The only patients who can be counted in the defrauding case were those who paid for their blood tests out of pocket, not those with insurance coverage.

As for Purdue, the pharmaceutical at the center of the opioid epidemic, victims include a share of the 232,000 Americans who died of prescription opioid overdoes between 1999 and 2018. Thousands of these addicts initially were prescribed OxyContin based on misleading marketing to physicians. They got hooked. Each new patient was allegedly worth around $200,000 to Purdue. The addicts paid the price in prison or with their lives. Surrounding communities also suffered the ravages from crime.

The damage from a drug manufacturer extends in insidious ways. “Eliminated” diseases like measles re-emerged because too many parents believe vaccines are unsafe. The anti-vaxxers’ irrational skepticism stems in part from an understandable mistrust of Big Pharma, a more salient concern as we pin our hopes on a coronavirus vaccine to help us return to a semblance of normalcy.

 The harm goes beyond these examples. White collar crime in America, such as fraud and embezzlement, costs victims an estimated $300 billion to $800 billion per year. Yet street-level “property” crimes, including burglary, larceny, and theft, cost far less— around $16 billion annually, according to the FBI. A 2019 Federal Trade Commission report estimated that in 2017, around 40 million Americans fell prey to mass-market consumer fraud schemes. But no government agency measures and reports full white-collar crime statistics. Individual private researchers try to piece it together.

Even the science of victimology, devoted to studying individuals and communities harmed by crime, neglects white-collar crime victims. A rare survey from 2010 of 2,500 adults revealed that nearly a quarter of households had been victimized by white-collar crime. Even when victims are revealed, it’s easy to get distracted by the money, audacity, and even the glamour of elite offenders. Theranos’s Holmes’s blonde hair, raspy voice, and Steve Jobs-style black turtlenecks were endlessly scrutinized as much as her deceptions. Researchers and readers long to get inside the minds of sophisticated con artists. Hearing stories about ordinary victims, not so much.

Victims come in all shapes and sizes. The elderly couple who loses nearly their entire life savings to a trusted big-shot money manager running a Ponzi scheme. The honest local storefront business that cannot stay afloat in the face of competitors who peddle shoddy goods online and are nowhere to be found for refunds. Think of the trustworthy employees who refuse to follow unlawful orders and get fired or the retired workers whose pension fund is plundered by corporate mismanagement. In a city where money launderers do a lot of cash sales, home prices become inflated. The launderers overpay for properties because they don’t care about the value, or they get cash kickbacks from the complicit sellers. These inflated prices make it harder for families to try to buy into the market. In that Hollywood scam to get rich kids into college, all the attention goes to the actors who committed fraud, not to the unknown, hardworking high school senior rejected from college because a classmate’s family paid off a coach to gain admission.

What can be done? Measurement and exposure of white-collar offenders is the place to start. We can help protect victims by establishing a nationwide registry of offending individuals and businesses, including those who have settled civil charges with federal agencies. Congress should provide funding without content control to independent journalists and ban forced arbitration of workplace legal disputes (which help discourage both resisting unlawful orders and whistleblowing).

Most promising would be to expand the False Claims Act, which gives special standing to regular people ­to bring legal cases on behalf of the U.S. against corrupt government contractors. Once known as “Lincoln’s Law,” it originally targeted businesses that were using wartime shortages to overcharge and provide shoddy goods, including poorly made uniforms to the federal government.

Enhanced greatly beginning in the mid-1980s, the FCA allows an ordinary person to start a case for the government and collect a bounty fee even if they have not been harmed by the misconduct or are an employee of the company in question. The Justice Department can take over the case as a civil or criminal matter if it wishes, or pass and let the private party pursue the matter directly. In 2014, the high-​water mark for False Claims Act settlements, the Department of Justice recovered $5.69 billion, $3 billion of which were cases initiated by whistleblowers.

A carefully tailored expansion of the False Claims law could give standing to ordinary people (whether employees or consumers) to bring cases on behalf of the government against businesses that contract with the public. This would go a long way to empowering victims directly. But we need much more action than that. To stem the current white-collar crime epidemic, we must change our mindset and put our resources toward protecting the public. Curing this problem and inoculating the public could be a perfect day one project for Joe Biden and Kamala Harris and prove to be a lasting legacy.