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      Rushing to replace Ruth Bader Ginsburg, McConnell shows power trumps principle | Robert Reich

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      People in public life tend to fall into one of two broad categories – those motivated by principle, and those motivated by power.Justice Ruth Bader Ginsburg, who died on Friday night at the age of 87, exemplified the first.When he nominated her in 1993, Bill Clinton called her “the Thurgood Marshall of gender-equality law”, comparing her advocacy and lower-court rulings in pursuit of equal rights for women to the work of the great jurist who advanced the cause of equal rights for Black people. Ginsburg persuaded the supreme court that the 14th amendment’s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well.For Ginsburg, principle was everything – not only equal rights, but also the integrity of democracy. Always concerned about the consequences of her actions for the system as a whole, she advised young people “to fight for the things you care about but do it in a way that will lead others to join you”.My most fervent wish is that I will not be replaced until a new president is installedRuth Bader GinsburgMitch McConnell, the Senate majority leader, exemplifies the second category. He couldn’t care less about principle. He is motivated entirely by the pursuit of power.McConnell refused to allow the Senate to vote on Barack Obama’s nominee to the supreme court, Merrick Garland, in February 2016 – almost a year before the end of Obama’s second term – on the dubious grounds that the “vacancy should not be filled until we have a new president”.McConnell’s move was a pure power grab. No Senate leader had ever before asserted the right to block a vote on a president’s nominee to the supreme court.McConnell’s “principle” of waiting for a new president disappeared on Friday evening, after Ginsburg’s death was announced.Just weeks before one of the most consequential presidential elections in American history, when absentee voting has already begun in many states (and will start in McConnell’s own state of Kentucky in 25 days), McConnell announced: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”This is, after all, the same Mitch McConnell who, soon after Trump was elected, ended the age-old requirement that supreme court nominees receive 60 votes to end debate and allow for a confirmation vote, and then, days later, pushed through Trump’s first nominee, Neil Gorsuch.Ginsburg and McConnell represent the opposite poles of public service today. The distinction doesn’t depend on whether someone is a jurist or legislator – I’ve known many lawmakers who cared more about principle than power, such as the late congressman John Lewis. It depends on values.Ginsburg refused to play power politics. As she passed her 80th birthday, near the start of Obama’s second term, she dismissed calls for her to retire in order to give Obama plenty of time to name her replacement, saying she planned to stay “as long as I can do the job full steam”, adding: “There will be a president after this one, and I’m hopeful that that president will be a fine president.”She hoped others would also live by principle, including McConnell and Trump. Just days before her death she said: “My most fervent wish is that I will not be replaced until a new president is installed.”Her wish will not be honored.McConnell’s ‘principle’ of waiting for a new president disappeared on Friday eveningIf McConnell cannot muster the Senate votes needed to confirm Trump’s nominee before the election, he’ll probably try to fill the vacancy in the lame-duck session after the election. He’s that shameless.Not even with Joe Biden president and control over both the House and Senate can Democrats do anything about this – except, perhaps, by playing power politics themselves: expanding the size of the court or restructuring it so justices on any given case are drawn from a pool of appellate judges.The deeper question is which will prevail in public life: McConnell’s power politics or Ginsburg’s dedication to principle?The problem for America, as for many other democracies at this point in history, is this is not an even match. Those who fight for power will bend or break rules to give themselves every advantage. Those who fight for principle are at an inherent disadvantage because bending or breaking rules undermines the very ideals they seek to uphold.Over time, the unbridled pursuit of power wears down democratic institutions, erodes public trust and breeds the sort of cynicism that invites despotism.The only bulwark is a public that holds power accountable – demanding stronger guardrails against its abuses, and voting power-mongers out of office.Ruth Bader Ginsburg often referred to Justice Louis Brandeis’s famous quote, that “the greatest menace to freedom is an inert people”. Indeed. More

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      'Vote like your life depends on it': Pete Buttigieg's message to LGBTQ youth

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      For Pete Buttigieg, the first openly gay candidate to win a presidential primary or caucus, the threat of a second Trump term is both political and deeply personal.Donald Trump has claimed to be a staunch supporter of LGBTQ rights but he has sought to undermine them through the courts. His vice-president, Mike Pence, has long opposed same-sex marriage.“When you see your own rights come up for debate, when you know something as intimate and central to your life as the existence of your family is something that is not supported by your president, and certainly your vice-president, it’s painful,” Buttigieg says by phone from Traverse City, Michigan, where his husband Chasten grew up.“It creates a sense of urgency that I hope will motivate many people – including a lot of LGBTQ younger people who maybe weren’t deciding so much how to vote as they were whether to vote – to see now is the time to vote like your life depends on it.”Buttigieg, 38 and the former mayor of South Bend, Indiana, was a breakout star of presidential politics in that seemingly distant pre-pandemic age that was in fact February. A Rhodes scholar at Oxford and war veteran in Afghanistan, he beat senators and a former vice-president to make history by narrowly winning the Iowa caucuses.I’m mindful every day that my marriage exists by the grace of one vote on our supreme courtBut after a crushing defeat in South Carolina, Buttigieg quit the race on 1 March, joining other moderates in throwing his weight behind Joe Biden. He is now launching his own podcast and prosecuting the case against Trump in the media – including on LGBTQ rights.In June, the Republican party issued a press release that claimed “President Trump has taken unprecedented steps to protect the LGBTQ community”. Among its examples to support this were the selection of Richard Grenell as acting director of national intelligence, making him the first openly gay person to hold a cabinet-level position. Grenell has called Trump the “most pro-gay president in American history”.But LGBTQ rights activists are not buying it, pointing out that Trump banned transgender people from the military and reversed many of their legal protections. He also opposes the Equality Act, that would protect LGBTQ people from discrimination in housing, the workplace and other settings, and his agencies are trying to give adoption and foster care agencies the right to discriminate against same-sex couples.The power of Washington over individual lives was made viscerally clear to Buttigieg by the 2015 supreme court ruling that legalised same-sex marriage nationwide. Three years later he married Chasten, a junior high school teacher who became a popular figure on the campaign trail.Buttigieg says: “I’m mindful every day that my marriage exists by the grace of one vote on our supreme court and we’ve seen the kind of extreme appointees that have been placed on the bench by this administration.“We’ve seen how, despite sometimes paying lip service to the community, [Trump has] rarely missed an opportunity to attack the community, especially trans people, whether we’re talking about the ban on military service or issues around healthcare. But even for same-sex international adoption, this administration has taken us in the wrong direction and four more years would be a tremendous setback.“Also around the world, we’re seeing, for example in eastern Europe, really disturbing setbacks in LGBTQ rights and equality without a strong United States leading the way in human rights, which requires leadership and credibility and also that we’re doing the right thing here at home. Without that, I think that people around the world are less safe.”In Poland, for example, Jaroslaw Kaczynski, the leader of the governing party, has said homosexuality represents a “threat to Polish identity”. When six towns declared themselves “LGBT ideology-free zones”, the European Union froze funding. But the US has been silent. Hosting Polish president Andrzej Duda at the White House in June, Trump said: “I don’t think we’ve ever been closer to Poland than we are right now.” More

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      Ruth Bader Ginsburg, supreme court justice, dies aged 87

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      Ruth Bader Ginsburg

      Stalwart of court’s liberal bloc had survived four cancer treatments
      Death of justice gives Trump chance of third appointment

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      Ruth Bader Ginsburg in her own words – video obituary

      The supreme court justice Ruth Bader Ginsburg has died of pancreatic cancer, the court said Friday. She was 87.
      Ginsburg was the second woman appointed to the court in history and became a liberal icon for her sharp questioning of witnesses and intellectually rigorous defenses of civil liberties, reproductive rights, first amendment rights and equal protections under the law.
      In a statement, the court said Ginsburg, who served more than 27 years on the bench, “died this evening surrounded by her family at her home in Washington DC, due to complications of metastatic pancreas cancer”.
      The chief justice, John Roberts, said that the nation “has lost a jurist of historic stature. We at the supreme court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her – a tireless and resolute champion of justice.”
      Her death thrust an immediate spotlight on who might fill the vacancy on the court, with just over six weeks before the election. The news was received with alarm by liberals and moderates who feared that Republicans would exploit the narrow window to install a third Donald Trump appointee on the supreme court.
      The Senate majority leader, Mitch McConnell, pledged to get Trump a swift vote his supreme court pick. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said. More

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      A disputed election, a constitutional crisis, polarisation … welcome to 1876

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      As Donald Trump warns inaccurately of voter fraud and polls show the unpopular president staying within touching distance of Democrat Joe Biden, the prospect of an unresolved US election draws horribly near, especially as the impact of the coronavirus is widely seen as likely to delay a result by days, if not weeks.Across the political spectrum, pundits are predicting what may happen should Trump refuse to surrender power. The speculation is tantalising but the short answer is that nobody has a clue.History does provide some sort of guide. There have been inconclusive US elections before. They were resolved, but not by any constitutional mechanism and the consequences of such brutal political contests have been severe indeed.In 2000, the supreme court decided a disputed Florida result and put a Republican, George W Bush, in the White House instead of the Democrat Al Gore. Though of course the justices could not know it, they had put America on the road to war in Iraq, economic crisis, the rise of the evangelical right and a deepening political divide.That case is well within living memory. But an election much further back produced even more damaging results.The campaign of 1876 ended with the electoral college in the balance as three states were disputed. Out of deadlock, eventually, came a political deal, giving the Republican Rutherford Hayes the presidency at the expense of Samuel Tilden, who like Gore, and indeed Hillary Clinton in 2016, won the popular vote.Tilden’s compensation was that his party, the Democrats, were allowed to put an end to Reconstruction, the process by which the victors in the civil war abolished slavery and sought to ensure the rights of black Americans, via the 13th, 14th and 15th constitutional amendments.The awful result was Jim Crow, the system of white supremacy and segregation which lasted well into the 20th century and whose legacy remains crushingly strong in a country now gripped by protests against police brutality and for systemic reform.Eric Foner, now retired from Columbia University, is America’s pre-eminent historian of the civil war, slavery and Reconstruction, a prize-winner many times over. He told the Guardian the US of 2020 is not prepared for what may be around the corner.“In 1877 there were three states, Florida, South Carolina, Louisiana, where two different sets of returns were sent up, one by the Democrats, one by the Republicans, each claiming to have carried the state.“There was no established mechanism and in fact, in the end, we went around the constitution, or beyond the constitution, or ignored the constitution. It was settled by an extralegal body called the Electoral Commission, which was established by Congress to decide who won.” More

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      This is what happens when the War on Terror is turned inward, on America | Hamilton Nolan

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      A strange and necessary ingredient of America’s descent towards fascism is that it will have little impact on the majority of people. As militarized federal agents are deployed into major cities to snatch protesters and charge them with harsh federal crimes for daring to deface the ruling party’s monuments, most Americans will continue living their normal lives with no discernible changes, at least for the time being. People wake up and eat breakfast and spend their days doing mundane tasks in fascist countries, too.If there was ever a tipping point, we are past it. Trying to stare hard at the daily news to determine the exact point at which we slip into fascism is like staring at a baby to see when it turns into an adult. By the time you perceive it, it’s already happened. It is important to understand that the crackdown phase that we are now in – the unaccountable government forces, the riot police, the teargas, the targeted political prosecutions that will come next – are not something new, but something old. This isn’t about Donald Trump. This is about America, baby. This is what we do.Trying to determine when we slip into fascism is like staring at a baby to see when it turns into an adult. Once you perceive it, it’s already happenedTrump, a fool ruled by impulse rather than strategy, did not build the fearsome machine of government oppression that is now being aimed at his political opponents. This machine was systematically assembled and lovingly tended to by generations of presidents before him – Democratic, Republican, Whig. Trump is only broadening its aperture. All of these tools have been sharpened on the bones of Native Americans and Black people and immigrants and Muslims overseas. America has always needed someone to oppress. Mostly so that we could steal their stuff, but also so that the rest of us didn’t turn against one another. This country has managed to avoid a class war by giving poor white people an array of minorities to abuse, a trick that has benefited rich white people for centuries. We have used injustice not just as a way to get ahead, but as a release valve. Our leaders have long calculated that it is safer to subjugate and mistreat a minority of the population than to risk dissatisfaction in the majority. In doing so, the government has become very adept at creating enemies and wielding power against them in flagrant shows of force.These are trivial observations, basic facts that will only be disputed by those who are destined to land on the side of fascism anyhow. The question is what they mean for our present moment, which is distinguished not by the existence of government oppression but by its direction. We are finding out what happens when the war on terror is turned inward on ourselves. In addition to the federal agents already in Portland, more are coming to Chicago, Albuquerque, and Kansas City; that may well be just the beginning of a national rollout. “Protecting federal property” and “maintaining law and order” are twin fig leaves wafting in a cloud of teargas. The Department of Homeland Security has effectively become a White House-controlled paramilitary and domestic surveillance service unaccountable to anyone except Trump and his loyalists. (If we’re being honest, this moment has been inevitable since DHS was panic-created in the days after the September 11 attacks. If there is any more fascist word than “homeland”, I haven’t heard it.)The basic logic behind gun control is that if there are a bunch of guns lying around, sooner or later someone will get shot. The same holds true for the security state. If you build it, it will eventually come for you. Cloaked in the banality of federal bureaucracy, we have tolerated the creation of a terrifying set of powers that now rest in the small hands of a man who has been waiting his entire life to take revenge on each and every enemy who has slighted him. Barack Obama sat in the White House for eight years and did nothing to dismantle this bureaucracy of soldier-cops. He was too busy using it in foreign drone wars. It’s too seductive to have that power, when you are the one who controls it. Now a worse president has it, and it will be turned, at last, against a bigger chunk of us than ever before.The trick now is convincing that tranquil majority that their interests are more aligned with the protesters than with the cops in fatiguesEvery new outrage is a test of what we will tolerate. If the government can roll out troops to a large swath of major cities and shoot the eyes out of protesters with rubber bullets all under the guise of stopping some kids from spray-painting some courthouse, it is a fairly good indicator that the spirit of the broader American public will not rouse itself to stand in the way of fascism’s tightening grip. In a nation this big, you can make 100 million people official Enemies of the State and still leave a comfortable majority blissfully unaffected. The trick now is convincing that tranquil, all-American majority that their interests are actually more aligned with the protesters wielding spray-paint outside the courthouse than with the militarized cops in fatigues.That shouldn’t be an impossible task. When there is actual justice being done inside the courthouses, the protesters and the storm troopers will both disappear. More

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      Trump may not respect the election. We need a Democratic senate more than ever | Sidney Blumenthal

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      Donald Trump’s declaration that he might not accept the results of the 2020 election has fundamentally transformed the campaign, making plain what had previously only been suspected. No other president has ever made such a statement.“I have to see,” said Trump in an interview with Chris Wallace of Fox News on 19 July, after Wallace asked him if he would accept the election outcome. “No, I’m not going to just say yes. I’m not going to say no, and I didn’t last time either.” Indeed, in 2016, Trump claimed that the election was being “rigged” against him.“I will look at it at the time,” Trump said to Wallace. “I will keep you in suspense.”Unlike last time, Trump is the president and has taken an oath to uphold the constitution. His refusal to accept the election results would be a clear violation of that oath and an impeachable offense. Indeed, simply by announcing he might reject the results by his own fiat, Trump has issued the most blatant desecration of the constitution’s values since the Confederate secession in 1860-61.No one has proposed a more urgent and persuasive argument for the election of a Democratic-controlled Senate than Trump. America needs a Democratic-controlled Senate as a warning to Trump that if he attempts to overturn an election that goes against him he will face a second impeachment and a full and fair trial. If anything, Trump’s lawless contempt for the constitution is the strongest possible incentive to elect Democrats this fall. Remember what happened last time, in the absence of a Democratic-controlled Senate: Trump was impeached by the House of Representatives for coercing the government of Ukraine to fabricate false information to damage Joe Biden, then, in the Senate, the case ran into Trump’s most powerful firewall, the Senate majority leader, Mitch McConnell. McConnell ensured that no witnesses were heard in the Senate and that Republican members were whipped into line to dismiss the evidence gathered by the House impeachment inquiry.Trump has sought to subvert the 2020 election through every conceivable effort at voter suppressionTrump has sought to subvert the 2020 election through every conceivable effort at voter suppression, including opposing mail-in ballots during the coronavirus pandemic, forcing voters to put their lives potentially at risk by waiting in lengthy lines. Even if his tactics to thwart the vote fail, his comments to Wallace indicate that Trump may cause a constitutional crisis to deny the people’s judgment. He may, as he has in the past, incite violence, calling on his armed supporters to threaten state officials to prevent accurate ballot tabulations.But whatever scenarios, gambits and tricks that Trump and his attorney general, William Barr, have up their sleeves, they should understand that the newly elected 117th Congress, especially if the Democrats have House and Senate majorities, could intervene to expose whatever they might do, beginning on the day the new congress members are sworn in on 3 January 2021. Without McConnell staging a farce to maintain Trump in power, the House can immediately impeach a defiant Trump’s repudiation of constitutional democracy and the Senate can conduct a trial with witnesses, starting with Barr, in fulfillment of the voters’ verdict. If Senate Republicans, even after their election losses, maintain their phalanx to frustrate a two-thirds majority, their disgraceful identification with the utterly discredited Trump would be complete. And if it comes to this, Trump and the Republicans will have delivered the nation to an authoritarian regime that dispenses with the constitution.In the meantime, Democrats in state legislatures should propose resolutions calling on the presidential candidates to accept the results of the election. Let every Republican be presented with an opportunity to stand for or against Trump’s disregard for democracy. The practice of passing such statements, even legislatures instructing elected federal office holders to adhere to certain policies, goes back to Thomas Jefferson and James Madison’s Kentucky and Virginia Resolutions to protest against the trampling of civil liberties imposed through the Alien and Sedition Acts of 1798.Trump’s statement that he may not accept the election result has only one precedent, the most glaring example of illegality and treason. According to the Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, secession was compelled because of the election of Abraham Lincoln, “whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that ‘Government cannot endure permanently half slave, half free,’ and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.”Lincoln answered the counter-revolution against democracy in a special message to the Congress on 4 July 1861. “It presents to the whole family of man,” he said, “the question of whether a constitutional republic or democracy – a government of the people, by the same people – can or cannot maintain its territorial integrity against its own domestic foes. It presents the question whether the discontented individuals – too few in numbers to control the administration, according to organic law, in any case – can always, upon the pretenses made in this case or on any other pretenses, or arbitrarily without any pretense, break up the government and thus practically put an end to free government upon the earth.”It is hardly a surprise that Trump defends Confederate monuments and the Confederate battle flag. With his scorn for democracy and disdain for the constitution, Trump is preparing for the last battle of his own “Lost Cause”.Sidney Blumenthal is the author of All the Powers of Earth, A Self-Made Man, and Wrestling with His Angel, the first three volumes in his five-volume biography of Abraham Lincoln. He is a former assistant and senior adviser to President Bill Clinton and senior adviser to Hillary Clinton. He has been a national staff reporter for the Washington Post, Washington editor and writer for the New Yorker and senior editor of the New Republic More

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      Trump consults Bush torture lawyer on how to skirt law and rule by decree

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      The Trump administration has been consulting the former government lawyer who wrote the legal justification for waterboarding on how the president might try to rule by decree.John Yoo told the Guardian he has been talking to White House officials about his view that a recent supreme court ruling on immigration would allow Trump to issue executive orders on whether to apply existing federal laws.“If the court really believes what it just did, then it just handed President Trump a great deal of power, too,” Yoo, a professor at Berkeley Law, said.“The supreme court has said President Obama could [choose not to] enforce immigration laws for about 2 million cases. And why can’t the Trump administration do something similar with immigration – create its own … program, but it could do it in areas beyond that, like healthcare, tax policy, criminal justice, inner city policy. I talked to them a fair amount about cities, because of the disorder.”In a Fox News Sunday interview, Trump declared he would try to use that interpretation to try to force through decrees on healthcare, immigration and “various other plans” over the coming month. The White House consultations with Yoo were first reported by the Axios news website.Constitutional scholars and human rights activists have also pointed to the deployment of paramilitary federal forces against protesters in Portland as a sign that Trump is ready to use this broad interpretation of presidential powers as a means to suppress basic constitutional rights.“This is how it begins,” Laurence Tribe, a Harvard constitutional law professor, wrote on Twitter. “The dictatorial hunger for power is insatiable. If ever there was a time for peaceful civil disobedience, that time is upon us.”Yoo became notorious for a legal memo he drafted in August 2002, when he was deputy assistant attorney general in the justice department’s office of legal counsel.It stated: “Necessity or self-defense may justify interrogation methods that might violate” the criminal prohibition on torture.Memos drafted by Yoo were used for justifying waterboarding and other forms of torture on terrorism suspects at CIA “black sites” around the world.Asked if he now regretted his memos, Yoo replied: “I’m still not exactly sure about how far the CIA took its interrogation methods but I think if they stayed within the outlines of the legal memos, I think they weren’t violating American law.”In a book titled Defender in Chief, due to be published next week, Yoo argues that Trump was fighting to restore the powers of the presidency, in a way that would have been approved by the framers of the US constitution.“They wanted each branch to have certain constitutional weapons and then they wanted them to fight. And so they wanted the president to try to expand his powers but they expected also Congress to keep fighting with the President,” he said.In a June article in the National Review, he wrote that a supreme court decision that blocked Trump’s attempt to repeal Barack Obama’s Deferred Action for Childhood Arrivals programme, known as Daca and established by executive order, meant Trump could do the same thing to achieve his policy goals.Daca suspended deportations of undocumented migrants who arrived in the US as children. As an example of what Trump might achieve in the same way, Yoo suggested the president could declare a national right to carry firearms openly, in conflict with many state laws.“He could declare that he would not enforce federal firearms laws,” Yoo wrote, “and that a new ‘Trump permit’ would free any holder of state and local gun-control restrictions.“Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency,” he said. In a telephone interview, he added: “According to the supreme court, the president can now choose to under-enforce the law in certain areas and it can’t be undone by his successor unless that successor goes through this onerous thing called the Administrative Procedure Act, which usually takes one to two years.”Constitutional scholars have rejected Yoo’s arguments as ignoring limits on the executive powers of the president imposed by the founders, who were determined to prevent the rise of a tyrant.Tribe called Yoo’s interpretation of the Daca ruling “indefensible”.He added: “I fear that this lawless administration will take full advantage of the fact that judicial wheels grind slowly and that it will be difficult to keep up with the many ways Trump, aided and abetted by Bill Barr as attorney general and Chad Wolf as acting head of homeland security, can usurp congressional powers and abridge fundamental rights in the immigration space in particular but also in matters of public health and safety.”On the deployment of federal paramilitary units against Portland, Yoo said he did not know enough of the facts to deem whether it was an abuse of executive power.“It has to be really reasonably related to protecting federal buildings,” he said. “If it’s just graffiti, that’s not enough. It really depends on what the facts are.”Alka Pradhan, a defence counsel in the 9/11 terrorism cases against inmates in the Guantánamo Bay prison camp, said: “John Yoo’s so-called reasoning has always been based on ‘What can the president get away with?’ rather than ‘What is the purpose and letter of the law?’“That is not legal reasoning, it’s inherently tyrannical and anti-democratic.”Pradhan and other defence lawyers in the pre-trial hearings at the Guantánamo Bay military tribunal have argued that the use of torture against their clients, made possible by Yoo’s 2002 memo, invalidated much of the case against them.“The fact that John Yoo is employed and free to opine on legal matters is an example of the culture of impunity in the United States,” she said. More