Don't Know What We Did To Deserve It, But Bush V. Gore Is Back
The past isn't dead. It isn't even past.
Sometimes I like to imagine what things might be like in the alternate universe where Al Gore won the 2000 presidential election. Maybe there was no Iraq War, because Gore's Cabinet wouldn't have been full of neocons. Following 9/11, the US still probably would have gone to war in Afghanistan, but without the shiny object of invading Iraq distracting everyone, the US might have caught up with Osama bin Laden in 2003 or 2004, not 2011. [Some of us who are editing this post think there would have been no 9/11, but Dok is being obstinate about it even though he is wrong.] [And others of us who wrote the post think there's at best a better chance that 9/11 would have been avoided] And just think of how much farther the US would be toward addressing global warming if Gore had had even a single term to put us on that track? Haha, we know from science fiction that the actual outcome would somehow involve brain-eating worms from Neptune, because those "better" timelines always go wrong.
In any case, we at least know a little more today about how we ended up with George W. in the White House, because on Tuesday, the Library of Congress made available files from the late Supreme Court Justice John Paul Stevens, which CNN reports include a bunch of memos from the Supreme Court's wrangling over the Bush v. Gore decision, which handed the election to George W. Bush. If you have a spare 15 minutes today, go ahead and read the CNN piece, which looks at how Justice Sandra Day O'Connor joined up with Justice Anthony Kennedy to shape the unsigned opinion that was eventually released by the five Republican-appointed justices in the majority. The alliance between Kennedy and O'Connor shut out a far more radical opinion pushed by then-Chief Justice William Rehnquist.
Spoiler warning: The Kennedy/O'Connor option was bad enough, laying the groundwork for the openly partisan Court we have today. But the Rehnquist option, which he published as a concurring opinion, endorsed the fuckbonkers "Independent State Legislature Doctrine" that became the basis for Donald Trump and his cronies' attempt to overturn the 2020 election, was far far worse. Had Rehnquist's view prevailed in 2000, we can only assume the brain eating worms from Neptune would have been close behind.
On December 10, 2000, even before oral arguments in the case, O'Connor circulated a four-page memo that laid out much of the rationale for what went into the eventual opinion, particularly the argument for blocking the Florida Supreme Court's order for some counties to hand-count "undervotes" — ballots that may not have shown up in the machine count, but which had some evidence of the voter's intent, like a "hanging" or "dimpled chad," and OMG I am having 2000 flashbacks already. O'Connor's memo argued, as did the eventual opinion, that there was so much variation in how the counties were conducting the recounts that there was no way to ensure "equal protection of the law."
CNN summarizes thusly:
“The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes,” O’Connor wrote, referring to instances when machines had failed to detect a vote for president. “Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated. More importantly, the court failed to provide any standard more specific than the ‘intent of the voter’ standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards.”
For that reason, O'Connor wrote, the recount system “in no way resembles the statutory scheme created by the Florida legislature” for choosing electors, so the recount should be shut down and the state's certification of the election for Bush, by just 537 votes, should be upheld.
Kennedy wrote to Rehnquist on December 11 to say
“Sandra’s memorandum sets forth a very sound approach” and said he wanted to build on it. He suggested he would point up how the varying recount practices breached the guarantee of equal protection.
Up to that point, CNN says, Rehnquist seems to have been planning to collaborate with Kennedy on a "composite opinion" that would include both the equal protection argument and Rehnquist's pet theory that the Constitution allows state legislatures to decide how to award electors without any interference from state courts, and regardless of how people actually voted, which is every bit as bizarre as it sounds. Once it became clear Kennedy wouldn't join him on that train to Crazyville, Rehnquist rewrote his own draft as a concurring opinion that was joined only by Antonin Scalia and Clarence Thomas.
CNN notes that Kennedy
had foreshadowed his reluctance to accept that theory during the Bush v. Gore oral arguments. “It seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution, and it can’t use its court … (is) it seems to me a holding which has grave implications for our republican theory of government.”
But then, 20 years later, it sure looked to a lot of Trump supporters like a terrific way to keep him in office while claiming that the actual election results in several Republican-controlled states won by Joe Biden were simply too unknowable to rely on, so it would be best if the legislators simply stepped in to save the election from the voters. Guess we know where the brain-eating worms from Neptune ended up!
We also learn that Antonin Scalia was really pissed off that the four dissenting Democratic appointees had each submitted their own dissents saying that the Court's decision would undermine its legitimacy, presumably because that idea wouldn't occur to anyone if the justices in the minority had simply stayed quiet.
“Going home after a long day,” Scalia wrote to fellow justices when it was all over on December 12, “I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports ‘obstacles to voting disproportionately encountered by black voters.’”
Oh, and big surprise, Scalia comes across as a big ol' racist, too! Ruth, why are you sounding like that awful man Al Sharpton? Scalia wasn't finished tut-tutting, though:
“I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential ‘damage to the Court.’ I just thought I would observe the incongruity. Good night.” He signed it, “Sincerely, Nino.”
Kennedy similarly sent a memo around to let his liberal colleagues know just how disappointed he was, not personally, no, but just for what they had done to the Court by badmouthing the very nonpartisan decision to hand the election to the Republican:
“I do not usually respond to dissenting opinions, and will not do so for the per curiam in this case. I take the occasion in this memo, however, to say that the tone of the dissents is disturbing both on an institutional and personal level. I have agonized over this and made my best judgment. Some of the dissenters in fact agree on the equal protection point, but take great pains to conceal that agreement. The dissents, permit me to say, in effect try to coerce the majority by trashing the Court themselves, thereby making their dire, and I think unjustified, predictions a self-fulfilling prophecy.”
What a sad state of affairs! And here we are, all these years later, with Democrats once more trying to undermine the legitimacy of the Supreme Court after it very soberly and non-partisanly eliminated women's rights to bodily autonomy. How disappointed Antonin Scalia would be in all of you.
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Zooey Zephyr's Taking The Bastards To Court
Nevertheless, she persists.
Montana state Rep. Zooey Zephyr, the state's first transgender lawmaker, isn't going to let Republicans in the Montana House of Representatives silence her. At least, not without a fight. Last week, you'll recall, the GOP supermajority voted to censure Zephyr for speaking up too transly against bills banning gender-affirming care and writing trans people out of Montana law. Rather than expelling her like the jerks in Tennessee did to their meddlesome Democrats, the Montana House barred Zephyr from the floor and hearing rooms of the Capitol until the legislative session ends later this week, preventing her from participating in debate while allowing her to vote, remotely and silently, and to watch the same public stream of House proceedings as anyone else can on the internet. So generous!
Previously:
Montana Republicans Want In On That 'Expel Democrats' Thing That Worked So Well For Tennessee
Montana House Republicans Officially Punish Zooey Zephyr For Legislating While Trans
Monday, Zephyr, with help from the Montana ACLU, filed a lawsuit in state court asking for an emergency injunction returning her to the House floor for whatever days remain in the session, arguing that her First Amendment rights had been stomped on. The suit also names several of her constituents as plaintiffs, arguing that the House's action effectively denied them and the rest of Zephyr's 11,000 constituents representation.
The AP interviewed one of those plaintiffs, Anna Wong, who has a transgender child and said she'd voted for Zephyr in 2022 because she knew Zephyr would "speak out against the onslaught of bills targeting transgender youth."
“Suicide amongst transgender youth is not imaginary,” Wong said. “It is not a game and it is not a political foil. It is real. It is heartbreaking. And it is the responsibility of my representative to speak out against bills promoting it.”
That's exactly what Zephyr was getting at when she spoke against Senate Bill 99, which bans gender-affirming care for trans youth. Zephyr accurately said forcing trans kids to undergo puberty as the sex they don't identify is "tantamount to torture" and said she hoped that those voting for the bill would "see the blood on your hands" the next time they pray during a House invocation. (Technically, the censure resolution only cited Zephyr's refusal to leave the floor last week during a demonstration by her supporters. But c'mon, we know why she was silenced.)
While there are only a few days left in the session, the Legislature still hasn't passed a budget, and Zephyr's lawsuit seeks her immediate reinstatement so she can represent her constituents in debate on that and other last minute bills.
Emily Flower, a spokesperson for Montana Attorney General Austin Knudsen (R), whose office will manage the defense in the lawsuit, dismissed it as "performance litigation — political activism masquerading as a lawsuit," and said that the courts have no power to intervene, because separation of powers.
As Hayes Brown notes at MSNBC, that argument may win out, unfortunately, because the US Constitution gives the US House and Senate the power to "determine the Rules of its Proceedings," and that generally applies to state legislatures too, because 14th Amendment. Montana's constitution does indeed allow the Legislature to expel or punish legislators for "good cause," with a two-thirds vote of the appropriate house.
Zephyr's lawsuit acknowledges that, but also argues that the House GOP leaders applied the rules unfairly and capriciously, so they were
acting within the “color of the law” — technically allowed but acting against the spirit of the law and beyond the scope of its reach.
Brown notes that the argument that the House is depriving Zephyr's constituents of representation may be more compelling than the First Amendment claim, since that's "the most immediate harm that a court could rule on given the closing window for participation."
But hey better a long shot than no shot at all. Zephyr has, since last week's vote, been dutifully showing up and sitting on a bench near the entrance to the House chamber to work on her laptop, although yesterday when she arrived, she found the bench had been taken already. So she worked at a table instead, standing up for her community.
\u201cSome folks showed up early this morning and sat on the public benches near the entrance to the House, so Seat 31 has moved.\n\nI'm up and ready to work. Plus, I hear stand desks are all the rage these days.\u201d— Rep. Zooey Zephyr (@Rep. Zooey Zephyr) 1682974009
Some folks showed up early this morning and sat on the public benches near the entrance to the House, so Seat 31 has moved.
I'm up and ready to work. Plus, I hear stand desks are all the rage these days.
But who were those ladies who made a point of arriving early to occupy the bench where Zephyr had been sitting? Ha ha it was a very funny trick by the wives of several prominent Republicans in the state Lege, including Jolene Regier, the mother of Speaker Matt Regier and wife of Senator Keith Regier. Wasn't that clever of them? It's inspiring to see how every aspect of governing in Republican-run states is now given over to trolling the libs!
\u201c@dutchessprim @ZoAndBehold The ladies on the bench are MT GOP legislature wives.....Jolene Regier, Sharon Deakin Nason, and Beth Hinebauch.\u201d— DutchessPrim\ud83d\udc99 (@DutchessPrim\ud83d\udc99) 1682976372
That is very humorous! Their husbands and sons kept Zephyr off the floor, and then the clever lady tricksters kept her off the bench, haha! Today, supporters of Zephyr made sure to be on the benches as soon as the Capitol doors opened, to save her a spot.
But also this morning, some unidentified opponent of trans rights took a less harmless approach to trying to silence Zephyr, calling the police in an attempt to send a SWAT team to the home of Zephyr's partner, journalist Erin Reed. Such SWATting attempts have resulted in at least two deaths — one from a police shooting, one from a heart attack — and many incidents in which police arrived at someone's door ready to use deadly force against a nonexistent threat.
Reed tweeted that the SWATting attempt against her failed, largely because "I've worked closely with the police in my community anticipating this," so there's one more tip for the journalist toolbox: If you write about issues that make the far-Right insane, let the police know they may get false reports of a hostage situation or other nonexistent crime at your home.
Update/clarification: The SWATting attempt may very well have come from outside Montana, because as indy reporter Alejandra Caraballo said on the Twitters, the dangerous hate troll site Kiwi Farms, which targets trans people and reporters for harassment in hopes that they'll kill themselves or die in a SWATting, added Reed to its page shortly before the attempted SWATting. They're pure evil.
This shit can't be tolerated. Zooey Zephyr isn't about to let herself be silenced, and neither should any of us who care about equality and freedom. Let your electeds, especially your Republican electeds, know that trans rights matter to you, and that if they think beating up on trans people will win them votes, it'll also get them very loud opposition, to say nothing of how they may end up in the history books on the same page as the Bull Connors and the George Wallaces.
And if you have some spare Ameros for Zooey Zephyr's 2024 reelection campaign, keep that in mind too. Montana needs her voice — and hey, she could use some company in the Montana House too.
[AP / MSNBC / Zephyr et al v. Montana]
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Trump Is On Trial For Sexual Assault Today, And We Just Feel Tired
Trigger warning, for real.
Writer E. Jean Carroll, who's suing Donald Trump in federal court in New York for defamation and battery, began her testimony today with a straightforward declaration of what the trial is about: "I’m here because Trump raped me. He lied and shattered my reputation and I’m trying to get my life back."
Carroll sued Trump because after she wrote a book mentioning the alleged 1996 rape in a Bergdorf Goodman changing room, Trump called her claims a hoax, said that he'd never met her (of course, she'd been photographed with him), and, disgustingly, that he never would rape her since she wasn't his "type." Carroll also filed a second case against Trump after he was no longer "president," when he again claimed on social media that the entire case was false; that case includes a sexual battery claim against Trump under New York's Adult Survivors Act. More background on the lawsuits here:
In Case You Missed It!
E Jean Carroll Is Not F*cking Around
Trump's Lawyers Continue Pattern Of Bad Faith F*ckery In E. Jean Carroll Defamation Case
During her testimony today, Carroll, who acknowledges she's not certain of the exact date, said she was fairly certain it happened in the spring of 1996, because a friend, Lisa Birnbach, whom she told about the rape contemporaneously, had published an article about visiting Trump's Florida trash palace, Mar-a-Lago, in February of 1996.
Carroll testified, "I believe that Lisa never would have gone down to Mar-a-Lago if she knew what [Trump] had done to me." That drew an objection from Trump's lawyer, Joe Tacopina, but Judge Lewis Kaplan overruled it. Law Crime News editor Adam Klasfeld is live-tweeting the testimony, which he notes "mirrors her deposition" covering the events of that day.
Carroll said that the encounter began when she was leaving the store and Trump raised his hand up, imitating what she called the "universal" signal.
After Trump recognized her as the "advice lady," she replied: "Hey, you're that real estate tycoon," she says.
"You are so old," Carroll quoted him saying, calling his inflection "humorous."
After they went into the store to help Trump find a gift for a woman, Carroll says, Trump picked up a see-through, gray, body suit.
"It looks like a swimsuit, but this was see-through," she says. "It used to be called teddies."
She says Trump said: "Go put this on."
As she said in the deposition, Carroll said Trump's tone was joking, and she told him, "You put it on. It's your color." She considered the encounter at that point to be silly, something out of a Saturday Night Live sketch, and she agreed that she was flirting a bit with Trump, since it felt like a comedy.
Then once Trump got her into the dressing room, things suddenly changed immediately, as Trump "shoved" her up against the wall and she tried to push back. We won't go into the details of the assault here, because they'll be all over the news anyway and you don't want to read it every bit as much as I don't want to write it, even copy pasting. Carroll presented an unsparing, detailed account, testifying that "As I'm sitting here today, I still feel it."
Carroll said that afterward, she told Birnbach about it, thinking her friend might find it funny:
Asked pointedly why she ever would have thought that, Carroll replies: "I had not processed it. I had not processed what was going on."
Asked if she thinks any part of it was funny today, Carroll replies: “No, it was tragic.”
Carroll said that Birnbach, who is an anticipated witness, told her:
“He raped you. He raped you, E. Jean. You should go to the police."
"I said ‘No way.’"
"She said, ‘I’ll go with you.'"
Another friend, Carol Martin, who's also expected to testify, told her to "keep it to yourself" because Trump "has 200 lawyers. He’ll bury you.”
Carroll also said that she decided to stay silent, in part, because women who've been assaulted are treated as "soiled goods":
"People say, 'You're so brave. You're so brave,'" but also: "I don't know," questioning whether the woman should have been smarter, should have screamed, or shouldn't have flirted so much.
And of course Trump's defense will be that none of this ever happened and that Carroll is just making it all up for the fame and notoriety, although we'd note that most women who accuse famous powerful men of rape tend not to end up rich and famous so much as judged and publicly mocked. Honestly can't recall any rich famous rape victims who didn't get dragged for coming forward, honestly.
Also in court today, Judge Kaplan warned Tacopina that his idiot client should stop posting on social media about the trial, because of course Trump is exactly that stupid. On his pretend Twitter replacement site, Trump this morning mocked the very idea that he would have raped Carroll, who was then "almost 60," and tried to cast doubt on details of her account, insisting that he was so very famous that if anyone had seen him with a woman, it would have made "BIG PRESS."
He also accused Carroll's attorney of being a "political operative," and said that the lawsuit was being funded by a "big political donor that they tried to hide." Returning to a point that was already ruled out of evidence, Trump also pretended that there was something very fishy about Carroll's attorneys not being willing to do a DNA test on the dress she'd worn that day. In reality, Trump refused to supply a DNA sample for years, and then Tacopina only offered to have Trump provide one shortly before the trial started, which would have required a delay of the trial.
NBC News reports that
Judge Kaplan suggested to Trump lawyer Joseph Tacopina that the former president could risk being sued or having sanctions imposed for the Truth Social posts he issued Wednesday morning.
“We are getting into an area in which your client could face a new liability and I think you know what I mean,” Kaplan said.
Judge Kaplan also pointed out to Tacopina that Trump "refused to get DNA sample and now he wants it in the case?” Tacopina said he would have a word with the shithead he represents, and would ask him not to discuss the case on social media. That should go really well, we bet. Get ready for the "Inside the Carroll Trial" reports in six months, in which we'll learn Trump threatened to fire Tacopina, threw ketchup at him, and finally pouted and shut up for a few days.
[NBC News / Adam Klasfeld on Twitter]
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Who's Buying Justice Neil Gorsuch's Real Estate? Nobody He'd Care To Tell You About!
Fam, we are shook.
You guys. Maybe you should sit down.
You know how there's been all that stuff in the news lately about garbage Supreme Court Justice Clarence Thomas and his trash fire loon wife Ginny taking millions of dollars in "hospitality" from rightwing gazillionaire Harlan Crow? Turns out, he's not the only one who forgot to disclose one or two little things on his ethics disclosure. Politico went digging through Justice Neil Gorsuch's financial disclosures and, hey, wouldn't ya know, he managed to bury the lede on a land deal which came together approximately five minutes after he was confirmed to the nation's highest court.
See, Gorsuch was a partner in an LLC called The Walden Group which had been trying to sell a 3,000-square-foot vacation house on 40 acres in rural Colorado since 2015. And right after he got confirmed in 2017, a buyer appeared with a sack of cash to take the property off their hands.
And who was the buyer?
Oh, just Brian Duffy, the head of law firm Greenberg Traurig's 600-lawyer litigation division which argues cases at the Supreme Court on the regular. NBD.
Now, to be scrupulously fair, Duffy says he didn't know that Gorsuch was a minority owner in the property until after he made an offer, which was substantially below list price. And when Duffy found out, he ran it through Greenberg's ethics department, which cleared him to go through with it. Yes, Greenberg did represent North Dakota in a 2022 case in which Gorsuch joined the Court's conservatives to gut the EPA's ability to regulate carbon emissions. But, let's be honest, he was going to do that anyway.
There's no evidence that Gorsuch treated Greenberg's clients more favorably than anyone else arguing to gut the federal government's ability to solve problems for the American people. The problem, however, is that Gorsuch buried the deal in his disclosure form by reporting that he'd received between $250,001 and $500,000 from Walden Group, LLC, and nothing else. And while there's basically no debate that what Justice Thomas did was way over the line, Gorsuch's fudge may or may not violate the flimsy disclosure requirements for federal judges.
And that, along with the total lack of accountability, is the problem. We entrust the judiciary to police itself, and that is clearly not working.
Another case in the news this week involves Judge Matthew Kacsmaryk, that ghoul in Texas who tried to rescind the FDA's authorization of mifepristone 23 years after the fact. CNN reports that most of Kacsmaryk's wealth consists of between $5 and $25 million of "common stock" in a company which he will not name.
“It is a private corporation headquartered and operated outside of Texas, outside the Fifth Circuit. It has never been a party in any case in the Northern District of Texas,” he wrote. “The Clerk’s Office has the name of the entity, actively screens incoming cases, and I would be automatically recused from any cases involving this entity.”
It's pretty clear from Kacsmaryk's prior disclosures that the company is the Publix supermarket chain. And while there are exceptions to disclosure requirements if the information would reveal personal information that might jeopardize the security of the judge or their family, it's hard to see how this would qualify. Nor is it clear how having the clerk screen for conflicts is an appropriate substitute for public disclosure requirements. The whole point of mandatory reporting is to allow litigants coming before the judge to decide for themselves if they should ask for a recusal. That's not a decision which can or should be be outsourced to a bureaucrat who works in the courthouse — i.e. for the judge — doing a key word search. And the fact that Kacsmaryk, Gorsuch, and Thomas are so blithe about it demonstrates exactly why we need to beef up the ethics regulations governing the federal judiciary.
Meanwhile, Senate Judiciary Chair Dick Durbin has rightly taken a lot of flak this week for refusing to demand that Justice Thomas come in and explain himself, telling NBC's Chuck Todd, “I think I know what would happen to that invitation. It would be ignored."
“Why this Supreme Court, these nine justices, believe they are exempt from the basic standards of disclosure, I cannot explain. And I think chief justice should appear before our committee and explain something or explain the changes that he’s going to make,” he said of his decision to invite Chief Justice John Roberts in to do an in-person rendition of the dog in the "This is Fine" meme.
Durbin seems to believe that shaming Roberts will do the trick: "This is John Roberts’s court. [...] History is going to judge the Roberts Court by his decision as to reform, and I think this is an invitation, on May 2, for him to present it to the American people.”
It won't. But shouting about it at least robs him and his brethren of their ability to pretend to be sacred monks in black robes, above petty partisan concerns and self-enrichment. Bang those pots!
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