US Politics

No, America is not on the brink of a civil warMusa al-GharbiIt’s time to tell the truth about the big lie According to a number of polls and surveys, significant majorities of Republican-aligned voters seem to believe the big lie that Trump was the rightful winner of the 2020 US presidential election and, consequently, the Biden administration is illegitimate.Taking these data at face value, a growing chorus insists that we’re living in a “post-truth” era, where members of one political party, the Republican party, can no longer tell facts from falsehood. As a result of the Republican party becoming unmoored from reality, the narratives typically continue, America is drifting headlong into a fascist takeover or a civil war.Fortunately for all of us, these dire predictions are almost certainly overblown. We are not living in a “post-truth” world. We are not on the brink of a civil war. The perception that we are is almost purely an artifact of people taking poll and survey data at face value despite overwhelming evidence that we probably shouldn’t.For instance, in the wake of the 2016 election, Trump claimed to have had higher turnout at his inauguration than Barack Obama did. Subsequent polls and surveys presented people with pictures of Obama and Trump’s inauguration crowds and asked which was bigger. Republicans consistently identified the visibly smaller (Trump) crowd as being larger than the other. A narrative quickly emerged that Trump supporters literally couldn’t identify the correct answer; they were so brainwashed that they actually believed that the obviously smaller crowd was, in fact, larger.Of course, a far more obvious and empirically plausible explanation is that respondents knew perfectly well what the correct answer was. However, they also had a sense of how that answer would be used in the media (“Even Trump’s supporters don’t believe his nonsense!”), so they simply declined to give pollsters the response they seemed to be looking for.As a matter of fact, respondents regularly troll researchers in polling and surveys – especially when they are asked whether or not they subscribe to absurd or fringe beliefs, such as birtherism (a conspiracy that held that Barack Obama was born outside of the US and was legally ineligible to serve as president of the United States).However, many academics and pundits do not seem to be in on the joke. Instead, post-2016, a consensus quickly emerged from credulous readings of polls and surveys that America is facing an epidemic of “fake news”, which was leading people to believe things that were obviously false, and to vote for unsavory political candidates. Some of the initial studies on this topic were blatantly prejudicial in their design; other widely shared studies were ultimately retracted.As more reliable data began to emerge, it turned out that, contrary to the initial hysteria, “fake news” stories were viewed by a relatively small number of voters, and infrequently at that. Most of those served pro-Trump or anti-Clinton “fake news” by social media sites already seemed firmly committed to voting for Trump, or intractably resolved against voting for Clinton (which is why the algorithms served them this niche content to begin with). That is, “fake news” is unlikely to have changed many, if any, votes. It is not a plausible explanation for the 2016 electoral outcome nor Trump’s support more broadly.Even people who share “fake news” stories typically never read (or even click on) them. That is, people are not sharing the content because they read the stories, grew convinced of their factual accuracy, and are genuinely trying to inform others. Instead, people typically share these stories based on their headlines, for a whole host of social reasons, while recognizing them to be of questionable accuracy (see here, here, here, here and here for more on this).It should not be surprising, then, that correcting misinformation seems to have virtually no effect on political preferences or voting behavior; misperceptions are generally not driving political alignments to begin with – nor are they driving political polarization.Contrary to narratives that have grown especially ubiquitous in recent years, Americans are actually not very far apart in terms of most empirical facts. We do not live in separate realities. Instead, people begin to polarize on their public positions on factual matters only after those issues have become politicized. And even then, polarized answers on polls and surveys often fail to reflect participants’ genuine views. Indeed, when respondents are provided with incentives to answer questions accurately (instead of engaging in partisan cheerleading), the difference between Democrats and Republicans on factual matters often collapses.In other cases, apparent disagreements about factual matters often turn out to be, at bottom, debates about how various facts are framed and interpreted, or disputes about the policies that are held to flow from the facts. That is, even in cases of genuine disagreement, there is typically less dispute about the facts themselves than about what the facts mean – morally or practically speaking.All said, measuring misperceptions is a fraught enterprise – even when it comes to banal and politically uncontested facts. Attempting to draw inferences about “incorrect” views on matters tied political, moral and/or identity struggles is a far more complicated endeavor. These are not data that lend themselves to being taken at face value.Similar realities hold for the data that purportedly show we’re on the brink of a new civil war.There is strong evidence that many of the surveys and polls indicating support for, or openness towards, political violence hugely overstate actual levels of support in the American public. Likewise, data that purport to show high levels of partisan vitriol may be misleading.In general, behaviors are often a stronger indicator than attitudinal data for understanding how sincere or committed people are to a cause or idea. The number of people who are willing to rhetorically endorse some extraordinary belief tends to be much, much higher than the subset who meaningfully behave as if that claim is true. The number of people who profess commitment to some cause tends to be much, much higher than the share who are willing to make sacrifices or life adjustments in order to advance that cause.The big lie is no exception. Both the low levels of turnout and the relatively low levels of violence are extraordinary if we take the polls and surveys at face value.Event organizers were expecting, “hundreds of thousands, if not millions” to take part in the January 6 uprising. This would be reasonable to expect in a world where tens of millions of Americans literally believed that an apparently high-stakes election was stolen out from under them. Even if just 1% of those who purportedly believe in the big lie had bothered to show up, the demonstrations would have been hundreds of thousands strong. Instead, they only mustered 2,500 participants (according to US government estimates).The lack of casualties was also striking, even when one considers injuries and indirect fatalities. After all, the former president also enjoyed strong support among people who are armed and formally trained in combat, such as active duty and veteran military and law enforcement. A large number of other Trump supporters participate in militias, or are private gun owners.Yet most January 6 participants did not bring firearms, and those who were armed did not discharge their weapons – not even in the heat of the violence that broke out. The only person shot in the entire uprising, Ashli Babbitt, was killed by a law enforcement officer. In fact, Babbitt was actually the only homicide to occur on that day.Two other rioters died from heart problems, another from a drug overdose. Police officer Brian Sicknick died from strokes on 7 January; the medical examiner ultimately concluded that this was unrelated to any injuries sustained during January 6. In the months that followed, four other police officers would perish by suicide. All said, then, a total of nine deaths have been associated with the events of January 6 (directly or indirectly). Not one person, however, was actually killed by the rioters. Nor is a single bullet alleged to have been fired by the rioters, despite many participants allegedly possessing guns.In a world where 74 million voted for Trump, and more than two-thirds of these (ie more than 50 million people, roughly one out of every five adults in the US) actually believed that the other party had illegally seized power and now plan to use that power to harm people like themselves, the events of January 6 would likely have played out much, much differently.Indeed, had even the 2,500 people who assembled on the Capitol arrived armed to the hilt, with a plan to seize power by force, committed to violence as “needed” to achieve their goals – things would have gone much, much differently.Instead, most participants showed up expecting Trump would provide them with definitive evidence for his claims of electoral malfeasance, and then unveil some master plan to take the country back. This didn’t happen. Those gathered seemed to have no idea what to do after that. Most of what followed was spontaneous, not planned. Even when they breached the Capitol, most had no information about the layout of the building, little knowledge about the proceedings they were ostensibly striving to disrupt, and no clear agenda of what to do once they got inside.There was a small number, dozens perhaps, who showed up to the Capitol with a clear intent to forcibly overturn the election – who equipped themselves for violence, researched the congressional proceedings and the layout of the building, developed and executed a plan, etc. These are behaviors consistent with a sincere belief in the big lie, and a strong commitment to doing something “about” it.Yet, critically, even these actors were operating independently of Trump, motivated in part by frustration with the former president’s apparent inaction. In their telling, Trump himself wasn’t acting like he believed his own rhetoric. There was no urgency. There was no “fire”. There was no focus. There was no plan. The Oath Keepers hoped to engage in a radical act that would push the president to actually behave as if the election was stolen and the republic was on the line. As their leader (currently arrested on sedition charges) put it:“All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough. We’re going to defend the president, the duly elected president, and we call on him to do what needs to be done to save our country.”Of course, even tiny numbers of genuine extremists like these can be extremely destabilizing under the right circumstances. Had Oath Keepers breached the Capitol instead of being repelled (even as Q-Shaman, Confederate Flag Guy et al wandered the building aimlessly) … January 6 could have played out much differently.Nonetheless, there is a huge difference in talking about identifying and disrupting small numbers of highly committed individuals willing to engage in revolutionary political violence v tens of millions of Americans genuinely believing the election was fraudulent and being open to violence as a means of rectifying the situation. Those are very different problems. Orders of magnitude different.The good news is that the second problem, the tens-of-millions-of-Americans problem, is not real. It is an artifact of politicized polling design and survey responses, followed by overly credulous interpretations of those results by academics and pundits who are committed to a narrative that half the electorate is evil, ignorant, stupid, deranged and otherwise dangerous.In fact, rather than January 6 serving as a prelude to a civil war, the US saw lower levels of death from political violence in 2021 than in any other year since the turn of the century. Even as violent crime approached record highs across much of the country, fatalities from political violence dropped. This is not an outcome that seems consistent with large and growing shares of the population supposedly leaning towards settling the culture wars with bullets instead of ballots. This turn of events does not seem consistent with the notion that tens of millions of Americans – including large numbers of military, law enforcement and militia members – literally believe the presidency was stolen, elections can no longer be trusted, and the fate of the country is on the line.Indeed, far from giving up on elections, Republican voters are reveling in the prospect of taking back one or both chambers of Congress at the end of this year; they are eagerly awaiting the midterms (likely for good reason).In truth, most Republican voters likely don’t believe in the big lie. But many would nonetheless profess to believe it in polls and surveys – just as they’d support politicians who make similar professions (according to one estimate, Republican candidates who embrace the big lie enjoy a 6 percentage point electoral boost as compared to Republicans who publicly affirm the 2020 electoral results).Within contemporary rightwing circles, a rhetorical embrace of the big lie is perceived as an act of defiance against prevailing elites. It is recognized as a surefire means to “trigger” people on the other team. A demonstrated willingness to endure blowback (from Democrats, media, academics, social media companies et al) for publicly striking this “defiant” position is interpreted as evidence of solidarity with, and commitment to, “the people” instead of special interests; it’s taken as a sign that one is not beholden to “the Establishment” and its rules. That is, the big lie seems to be more about social posturing than making sincere truth claims.For many reasons, this situation is also far from ideal. But it’s a very different (and much smaller) problem than partisans actually inhabiting different epistemic worlds and lurching towards a civil war. Glass half full.
Musa al-Gharbi is a Paul F Lazarsfeld fellow in sociology at Columbia University
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Man who wore ‘Camp Auschwitz’ shirt admits joining US Capitol rioters Robert Keith Packer of Virginia pleads guilty to parading, demonstrating or picketing in Capitol building A Virginia man who wore a “Camp Auschwitz” sweatshirt at the US Capitol during last year’s riot pleaded guilty on Wednesday to joining the mob of people who stormed the building. Photographs of Robert Keith Packer wearing the sweatshirt with the antisemitic message went viral after the 6 January 2021 insurrection. The words “Camp Auschwitz” were above an image of a human skull. Packer’s sweatshirt also bore the phrase “work brings freedom”, a rough translation of the German words above the entrance gate to Auschwitz, the concentration camp in Poland where Nazis killed more than 1 million men, women and children.Packer’s guilty plea came one day before Holocaust Memorial Day.Packer, 57, of Newport News, Virginia, pleaded guilty to parading, demonstrating or picketing in a Capitol building, a misdemeanor that carries a maximum sentence of six months imprisonment. The US district judge Carl Nichols is scheduled to sentence him on 7 April. FBI agents arrested Packer a week after the riot. He remains free pending his sentencing hearing. A witness who contacted law enforcement recognized Packer as a regular customer at a store near Newport News. A surveillance camera captured an image of him wearing the same sweatshirt in the store in December 2020. Packer’s sweatshirt “appears to be a symbol of Nazi hate ideology”, an FBI agent wrote in an affidavit. The assistant US attorney Mona Furst said Packer entered the Capitol despite seeing broken glass and police officers using teargas. Packer was in the area where a police officer shot a rioter, Ashli Babbitt, and he left the building after that fatal shooting, Furst said. A photograph of Packer inside the Capitol shows him near people holding a broken nameplate from the office of the House Speaker, Nancy Pelosi. More than 730 people have been charged with federal crimes related to the Capitol riot. About 200 of them have pleaded guilty, mostly to misdemeanors.TopicsUS Capitol attackUS politicsThe far rightnewsReuse this content More

The leading female contenders to succeed Breyer on supreme court Justice Stephen Breyer’s retirement allows Biden to make history by appointing its first Black womanThe liberal supreme court justice Stephen Breyer is retiring and Joe Biden has said he will stand by a previous promise to nominate a Black woman to America’s highest legal body.Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judgeRead moreAt 83 years old, Breyer is the oldest justice of the court and his retirement will give Biden his first seat to fill on the supreme court, which is currently conservative-leaning by six to three. Replacing Breyer won’t allow Biden to change that dynamic but it does allow him to ensure the liberal contingent is not reduced further and make history by appointing its first Black woman.Here are some of the women considered leading contenders for the seat:Ketanji Brown JacksonBorn in Washington DC and raised in Miami, Florida, Jackson has been a judge of the US court of appeals for the DC circuit since June 2021 after the 51-year-old Harvard graduate replaced the attorney general, Merrick Garland.The DC circuit has historically been seen as a stepping stone to the supreme court. From 2010 to 2014, Jackson served as vice-chair of the United States sentencing commission, during which the commission significantly reduced sentences for numerous drug offenders.Leondra KrugerKruger, a native of Los Angeles, is an associate justice of the supreme court of California. The 45-year-old was previously the acting principal deputy solicitor general under the Barack Obama administration.Supreme court justice Elena Kagan once called Kruger “one of the best advocates in the Department of Justice”. Kruger has argued 12 cases in front of the supreme court. She has previously described her approach to the law as one that “reflects that fact that we operate in a system of precedent”.J Michelle ChildsChilds is currently serving as a district judge of the US district court for the district of South Carolina. Appointed by Obama in 2009, the 55-year-old Detroit native has also been nominated by Biden for a seat on the DC circuit court of appeals. Childs was also the first Black woman to become a partner at Nexsen Pruet, LLC, one of South Carolina’s major law firms.She has served as the deputy director in the labor division at South Carolina’s department of labor, licensing and regulation. Congressman Jim Clyburn, a close ally of Biden, is fiercely supports Childs and has previously pushed the Biden administration to nominate her as the supreme court’s next liberal justice. “She is the kind of person who has the sort of experiences that would make her a good addition to the supreme court,” Clyburn said.Wilhelmina WrightWright is a district judge of the US district court for the district of Minnesota. A favorite of Senator Amy Klobuchar of Minnesota, the 58-year-old is also Minnesota’s first African American justice. Wright has previously said that fairness, impartially and respect for the rule of law have been her “lodestar”, adding that she “give[s] no consideration to whether I agree or disagree with a party”. She has also emphasized the importance of diversity in the judicial system, at one point writing: “I believe it would undermine the public’s trust and confidence in the judiciary if there were no judges who are women or judges of color.”Eunice LeeSince August 2021, Lee, 52, has been a judge of the US court of appeals for the second circuit after being nominated by Biden. Lee has worked at the office of the appellate defender in New York City from 1998 to 2019. In addition, from 2019 until her bench appointment, Lee was an assistant federal defender in the appeals bureau of the federal defenders of New York.Candace Jackson-AkiwumiJackson-Akiwumi is currently a US circuit judge of the US court of appeals for the seventh circuit since July 2021. Jackson-Akiwumi is the first judge appointed to the seventh circuit who has a background as a federal public defender.Nominated by Biden in April 2021, Jackson-Akiwumi was also a staff attorney at the federal defender program in the northern district of Illinois from 2010 to 2020 where she represented indigent people who were accused of federal crimes. From 2020 to 2021, Jackson-Akiwumi served as a partner at Zuckerman Spaeder, a DC-based law firm where she focused on civil litigations and white-collar criminal defense.Sherrilyn IfillIfill is the president and director-counsel of the Legal Defense and Educational Fund at the National Association for the Advancement of Colored People (NAACP). Before joining LDF as an assistant council in 1988, the 59-year-old New York native was a fellow at the American Civil Liberties Union.Ifill taught civil procedure and constitutional law for over two decades and pioneered numerous law clinics, including one of the first in the country that focused on challenging legal obstacles to the re-entry of ex-offenders. In 2021, Time named her one of the world’s 100 most influential people.TopicsUS supreme courtLaw (US)Biden administrationJoe BidenUS politicsnewsReuse this content More

US secretary of state Antony Blinken has said ‘there will be no change ‘to Washington’s support for Ukraine’s right to pursue Nato membership, the most contentious issue in relations with Moscow.
The US has presented its written response to Russian demands on Ukraine, offering to negotiate with Russia over some aspects of European security, but not the issue of eventual Ukrainian membership to the Nato alliance.
Blinken was speaking hours after his Russian counterpart, Sergei Lavrov, threatened ‘retaliatory measures’ if the US response did not satisfy the Kremlin

US holds firm on Ukraine’s right to join Nato in its response to Russian demands
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Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judgeBreyer, 83, had been under pressure from progressives eager to fill a seat on the supreme court while the Democrats hold power Justice Stephen Breyer will retire from the supreme court, according to widespread media reporting on Wednesday, which, if confirmed by the court, will provide Joe Biden with the opportunity to fulfill a campaign pledge by nominating the first Black woman judge to the bench.Such a choice would be a milestone and bolster the liberal wing of the bench, even as it weathers a dominant conservative super-majority achieved under the Trump administration.Breyer, 83, had been under pressure from progressives eager to give the new president the chance to fill a seat on the court while the Democrats hold power in the White House and Congress, including a wafer-thin margin in the Senate, which would have to confirm Biden’s nominee.Later in the year Biden would face the threat of any picks of his being blocked if the Republicans win back control of the US Senate in November’s midterm elections.California-born Breyer was nominated by Bill Clinton in 1994 and confirmed with strong bipartisan support in the Senate at the time.As news of Breyer’s retirement came in, the White House distanced itself from the development in an apparent attempt to signal that Biden had not pressured the justice.Biden, meeting private sector CEOs at the White House to talk about his legislative agenda, declined to comment on the retirement per se, saying: “There have been no announcements from Justice Breyer.””There have been no announcements from Justice Breyer,” President Biden says. “Let him make whatever statement he’s going to make, and I’ll be happy to talk about it later.” He jokes to a CEO in the meeting with him right now, “Do you want to go to the Supreme Court?”— Kaitlan Collins (@kaitlancollins) January 26, 2022
But there were no denials from the White House or the court.At the White House daily briefing, the first question from the media to the press secretary, Jen Psaki, was whether Biden intends to follow through on his campaign promise to nominate a Black woman to the court, and she said: “The president has stated and reiterated his commitment to nominating a Black woman to the supreme court and certainly stands by that.”Gabe Roth, executive director of Fix the Court, which advocates reform of the federal judiciary, told the Guardian that Breyer’s move was “a long time coming. The risk that an 83-year-old would hang on only to see himself replaced by a Republican president and Republican Senate was growing exponentially with every passing year.”Roth added: “The supreme court is not an apolitical body, and if you care about protecting your legacy then you retire when a like-minded president is in office.”Breyer is perhaps the least well-known of the current justices outside legal circles, chiefly because he is regarded as a pragmatist and has spent more than two decades at the moderate end of the liberal wing, actively eschewing partisanship.He is the most senior member of the court’s liberal minority following Ruth Bader Ginsburg’s death in 2020 at 87.Despite what had appeared to be resistance to pressure to retire quickly in the Biden administration, Breyer is calling it a day.Among names being circulated, the frontrunner on Wednesday appeared to be Ketanji Brown Jackson, an appeals court judge in Washington DC. Other contenders for the seat are the California supreme court justice Leondra Kruger, US district court judge J Michelle Childs and several others. Despite no explanation from Breyer when the news broke, there are clues to his possible thinking. In an interview with the New York Times last August he quoted his late peer on the bench, Antonin Scalia, who once told him: “I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.”Whatever his rationale, there is no doubt that he had warnings ringing in his ears from liberals, building last summer, that he shouldn’t hang on to his seat and risk having Republicans dictate his replacement.That happened with Ginsburg, who resisted years of such hints, including from Barack Obama when he was president, and outright lobbying.She died in the last weeks of the 2020 election campaign, affording the Republican president Donald Trump his third supreme court pick. The Senate, led at the time by the GOP’s Mitch McConnell, rushed through Ginsburg’s replacement, the ultra-conservative Amy Coney Barrett, boosting conservatives to a 6-3 majority on the bench.McConnell said last June that it was “highly unlikely” he would allow Biden to fill a vacancy if Republicans had regained Senate control.But the court’s shift to the right began five years ago, when Antonin Scalia died suddenly and Senate Republicans refused to process Barack Obama’s nomination of Merrick Garland.Had Garland, now Biden’s attorney general, been confirmed, it would have given the court a majority appointed by Democratic presidents for the first time in 50 years.Instead, the seat remained empty, Trump unexpectedly won the presidency and his first of three picks, Neil Gorsuch, joined the court in April 2017.A year later the court’s “swing vote”, Justice Anthony Kennedy, retired and Trump put Justice Brett Kavanaugh in his seat.Kennedy’s retirement essentially put Chief Justice John Roberts at the ideological, though right-leaning, center of the court. He has tried to combat rising public perceptions of the court as merely a political institution.Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, had earlier this year written an opinion piece for the Washington Post calling on Breyer to retire sooner rather than later.In the American Bar Association Journal, however, Chemerinsky also paid tribute to Breyer’s “pragmatic approach to judging that looks more to real-world effects than abstract ideology”.And he pointed to important positions taken by Breyer.These included a majority decision in Whole Woman’s Health v Hellerstedt in June 2016 against severely restricting abortion in Texas. And a dissent in 2015’s Glossip v Gross case, where Breyer said it was “highly likely that the death penalty violates the eighth amendment” to the US constitution which prohibits cruel and unusual punishment.Breyer was born in San Francisco and raised in a Jewish family. He studied at Stanford University, Magdalen College, Oxford and Harvard Law.Hillary Clinton called Breyer’s decision “admirable”.Thank you to Justice Breyer for 30 years of distinguished service on the bench, and for his admirable decision to retire now. We are grateful for your career dedicated to fairness and justice for all.— Hillary Clinton (@HillaryClinton) January 26, 2022
The Senate majority leader, Chuck Schumer, voiced optimism that Biden’s pick will swiftly win confirmation.SCHUMER in a statement: “President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.”— Daniella Diaz (@DaniellaMicaela) January 26, 2022
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Battered Biden gets chance to change political narrative as Breyer retiresAnalysis: president faces high expectations as he prepares make one of his most consequential decisions In his spare time, Justice Stephen Breyer enjoyed taking the bench at humorous “mock trials” of characters such as Macbeth and Richard III for Washington’s Shakespeare Theatre Company. The case usually turned on epic battles over succession.Now Washington is about to be consumed by the question of who will inherit Breyer’s crown following his reported decision to retire from the US supreme court. At 83, he is its oldest member, one of three liberals outnumbered by six conservatives.This is a perfectly timed political gift for Joe Biden, aware that choosing a supreme court justice is one of the most consequential decisions that any president can make.After a year in the White House, Biden was limping with a stalled legislative agenda, a tenacious pandemic and Vladimir Putin threatening Ukraine. He was a tired brand in desperate need of a relaunch, a tough ask at the age of 79.Biden ‘stands by’ pledge to nominate Black woman to supreme court, White House says – liveRead moreBreyer has provided it, instantly changing the conversation. “This has to feel like a political elixir right now,” observed Chuck Todd, host of MSNBC’s Meet the Press Daily show.A vacancy on the highest court enables Biden to rally the Democratic base and begin to cement a legacy that, despite early ambitions, had recently looked to be in jeopardy. Although the ideological balance of the court will not change, Biden could choose a young liberal who will serve for decades.The Senate, which must approve his choice, is divided between 50 Democrats and 50 Republicans with Vice-President Kamala Harris casting the tiebreaker vote. Breyer has given it enough time to confirm the president’s pick before the midterm elections could shift the balance of power.Democratic divisions have been on display of late but a supreme court vacancy typically unites a party like nothing else. Even senators Joe Manchin and Kyrsten Sinema, who broke ranks over the Build Back Better plan and voting rights, have voted for every Biden nominee to the lower courts so far. Both will presumably regard this confirmation as an easy way to win back some favour with angry liberals.Not for the first time, however, Biden has raised expectations. At a debate in the 2020 Democratic primary, he declared: “I’m looking forward to making sure there’s a Black woman on the supreme court, to make sure we, in fact, get every representation.” His judicial appointments so far have been historically diverse, and Jen Psaki, the White House press secretary, told reporters after the news of Breyer’s imminent retirement broke that Biden “certainly stands by” his promise.The upshot is that if he now nominates anyone other than a Black woman, there will be disappointment on the left. Sean Eldridge, founder and president of the progressive group Stand Up America, said on Wednesday: “President Biden promised to appoint the country’s first-ever Black woman supreme court justice, and he must make good on that promise.“The president and vice-president’s voters are watching eagerly to see that he follows through and makes history with his first supreme court nomination.”Potential candidates include the US circuit judge Ketanji Brown Jackson, California supreme court justice Leondra Kruger, civil rights lawyer Sherrilyn Ifill and US district judge Michelle Childs, a favourite of the South Carolina congressman James Clyburn, a Biden ally.Notably, when Jackson was confirmed last year to the influential US court of appeals for the DC circuit, often seen as a springboard to supreme court, the Republican senators Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska voted with Democrats in favour.Carl Tobias, Williams chair in law at the University of Richmond, said: “I expect that the Democrats will remain united, as they have so far, because all Democratic members, including Senators Manchin and Sinema, have voted for all of Biden’s lower court nominees.“Most GOP senators have voted against many Biden lower court nominees. The major exception is Lindsey Graham, who has voted for many Biden lower court nominees in committee and on the floor. Senators Collins and Murkowski have also voted to confirm a number of Biden lower court nominees. If the Democrats vote together, they do not need GOP votes.”It remains an open question whether a handful of Republicans might back Biden’s nominee given the politicisation of the court in recent years – from Republicans blocking Barack Obama’s pick Merrick Garland to the rancour that surrounded Donald Trump’s three appointments, and the court’s imminent decision on the constitutional right to abortion.In an ominous statement on Wednesday, Graham said: “If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support. Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the supreme court.”Don’t call Joe Biden a failed president yet | Gary GerstleRead moreMeanwhile, Carrie Severino, president of the conservative Judicial Crisis Network, fired the first shots of a partisan battle to come. “The left bullied Justice Breyer into retirement and now it will demand a justice who rubber-stamps its liberal political agenda,” she said. “And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them.”Yet it is Republicans who waged a multi-generational project to tilt the court in their favour with the help of the Federalist Society, which created a pipeline of young, ideologically rightwing lawyers. Trump’s release during the 2016 election of a shortlist of judges for the court helped him secure the conservative base; his three justices are likely to be his most lasting legacy.Democrats were criticised for being slow to wake up to the threat and lacking similar aggression. Now, thanks to Breyer’s retirement, they find themselves with the unaccustomed comfort of having political momentum on their side.TopicsJoe BidenUS supreme courtLaw (US)DemocratsRepublicansUS politicsanalysisReuse this content More

US prosecutors investigate Republicans who sent fake Trump electors to Congress‘Fraudulent elector certifications’ sent from states won by Biden in effort to subvert election result and declare Trump the winner Federal prosecutors have launched an investigation into the attempt by Republicans in seven presidential battleground states won by Joe Biden in 2020 to subvert the election result by sending bogus slates of Donald Trump electors to Congress.The ploy was one of the central tactics used by Trump loyalists as part of the “big lie” that he had defeated his Democratic challenger. The fake slates of electors were forwarded to congressional leaders, who then came under pressure to delay certification of Biden’s victory on 6 January 2021, the day of the Capitol insurrection.In an interview on CNN, the deputy attorney general, Lisa Monaco, revealed that the justice department has begun an investigation into what she called the “fraudulent elector certifications”. She said the department had received referrals on the matter and “our prosecutors are looking at those”.Monaco added: “We are going to follow the facts and the law wherever they lead to address conduct of any kind and at any level that is part of an assault on our democracy.”Fake slates of Trump electors were sent to Congress from seven states in fact won by Biden – Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin. Of those, two – New Mexico and Pennsylvania – added the caveat that the Trump electors should only be counted in the event of a disputed election.The other five states sent signed statements to Washington giving the appearance that Trump had won despite clear and verified counts placing Biden on top.Under America’s arcane presidential election system, US presidents are not chosen directly by voters but indirectly through electoral college votes meted out state by state. Official certificates naming the electors for the winning candidate in each state are then sent to Washington to be certified, in this case on 6 January, when hundreds of violent Trump supporters stormed the Capitol building in an attempt to disrupt the process.Earlier this month the pro-democracy group American Oversight obtained under freedom of information laws the bogus certificates from all seven states in which Republicans attempted to overturn the election result. The certificate from Georgia, one of the most hotly contested states in 2020, reads: “We, the undersigned, being the duly elected and qualified electors for president and vice president of the United States of America from the state of Georgia …”The fake statement then carries the names and signatures of 16 fake electors who claimed falsely to have cast their electoral college votes for Trump when in fact they had no legal standing to do so. The move was in direct contravention to the actual vote in Georgia, confirmed in multiple counts, which Biden won by 11,779 votes.Democratic attorneys general in at least two of the seven states – New Mexico and Michigan – have now asked federal prosecutors to examine whether drawing up the bogus certificates amounted to a crime. Their referrals appear to have triggered the DoJ’s investigation.The fact that Republicans left a paper trail by sending their phony certificates to both Congress and the National Archives suggest that they may now face legal peril. The House committee investigating the January 6 insurrection has also recently begun to focus on the fake Trump electors, and particularly those who organized the plot.A figure of special interest is Rudy Giuliani, who acted as a lawyer for the Trump campaign and who has been reported to have spearheaded the fake elector strategy. The January 6 committee sent Giuliani a subpoena letter earlier this month specifically referring to his efforts instigating the ploy.Another area of intense interest is the draft letter prepared in December 2020 by Jeffrey Clark, a relatively lowly justice department official, who tried to persuade Georgia and six other states won by Biden to call back their electors from Congress and consider replacing them with Trump electors. The letter was never officially sent after the acting US attorney general, Jeffrey Rosen, refused to play ball.The fake electors tactic was also central to the election subversion strategy laid out for Trump by the conservative lawyer John Eastman. In a now notorious two-page memo handed to Trump and the then vice-president, Mike Pence, in the Oval Office, Eastman argued that Pence could block the certification of Biden’s victory on 6 January.Pence had the constitutional role of presiding over the joint session of Congress that would certify the election results – a process usually considered purely ceremonial. But Eastman advised him that when he opened the electoral college ballot from Arizona he should announce that “he has multiple slates of electors, and so is going to defer decision on that”.By “multiple slates”, Eastman was referring to the official slate of electors returned by Arizona in favor of Biden who won the state by 10,457 votes and the fake slate of Trump electors that is now under federal investigation.TopicsUS newsUS politicsRepublicansDonald TrumpUS elections 2020newsReuse this content More