Canceling the cancelers: Toxic polarization outs itself in the federal courts

A WaPo opinion piece comments:

Can you cancel “cancel culture” by canceling the cancelers? Some Republican judges are answering with an emphatic “Yes!” — which shows that their commitment to free and open debate isn’t quite what they would have you believe.

This very public attack on Yale Law School isn’t just about hypocrisy over free expression, or even just about the politicization of the judiciary. It also shows that in a way, this isn’t an argument the right actually wants to win. The controversy itself is the point.

The story starts a couple of weeks ago, when Judge James C. Ho of the U.S. Court of Appeals for the 5th Circuit announced in a speech that he would no longer accept clerks from Yale Law School, which he described as a place where censorious liberals suppress conservative voices with a particular cruelty. “Yale not only tolerates the cancellation of views — it actively practices it,” he said, and Ho encouraged other judges to follow his lead.

Although some conservatives objected, on the whole the right celebrated. The Federalist trumpeted Ho’s speech, calling Yale a “cancel culture cesspool.” Sen. Ted Cruz (R-Tex.) tweeted that “Judge Ho’s takedown of cancel culture" was “a courageous and important stand that I hope other judges will replicate!”

And some have. Another appeals court judge, Elizabeth Branch of the 11th Circuit, said she too would refuse to hire clerks from Yale (like Ho, she is restricting her boycott to future students, not those currently enrolled). The conservative Washington Free Beacon reported that a dozen other judges were taking up Ho’s call, though they wanted to remain anonymous.

As a practical matter, this boycott makes almost no sense. Let’s grant for a moment that Yale has a stifling culture of silencing conservatives. That means the students Ho is shutting out of positions in his chambers would be the victims of this culture, not its perpetrators.

However firm their ideological commitments, we used to expect judges to let their decisions speak for themselves, with perhaps the occasional speech or interview thrown in. Now judges perform stunts designed to attract media attention — and that’s exactly what this is. At this point it wouldn’t be surprising to see Ho or others like him interrupt oral arguments in court to say, “Hang on, I was just totally owning the libs on Truth Social. Proceed, counsel.”

And it’s clear that, like many conservatives, Ho is moved to take action against the silencing of free expression only when it’s the expression of people he agrees with that is supposedly being silenced. And that lets liberals off the hook.

Who does Yale law school cancel? One was Ilya Shapiro. He is an influential radical right Federalist Society[1] legal theorist. He left Georgetown (but was not fired or disciplined) after an investigation of his Tweets about Biden's pick for the Supreme Court: “But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?” Yale law students shouted him down at a Federalist Society speaking engagement at Yale. Shapiro could only get out a few words before the audience shouted him off the stage. 

What if the speakers at private engagements want to polarize and divide the audience by advocating lies, slanders and other forms of dark free speech? 

Does the cancellation of speakers in a private institution like Yale justify cancellation by federal judges of lawyers from a targeted law school? Courts are public places and speech generally cannot be censored. Speech can be censored in private places but not public places. 

Does choice of clerks for judges constitute speech, or is that just a hiring decision? Does one wrong justify another wrong? 

Footnote: The Federalist Society screens and picks ideologically loyal conservative and Christian nationalist, anti-government, anti-regulation federal judges for Republican presidents to nominate. That makes it influential and powerful. Wikipedia says this about the Federalist Society:

The Federalist Society for Law and Public Policy Studies is an American conservative and libertarian legal organization that advocates for a textualist and originalist interpretation of the U.S. Constitution. Headquartered in Washington, D.C., it has chapters at more than 200 American law schools and features student, lawyer, and faculty divisions. The lawyers division comprises more than 70,000 practicing attorneys (organized as lawyers chapters and practice groups within the division) in ninety cities. Through speaking events, lectures, and other activities, it provides a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, and the legal academy. It is one of the most influential legal organizations in the United States.

An opinion on Trump’s legal fate: But is it already too late?

Staff reporter Franklin Foer at The Atlantic writes:

THE INEVITABLE INDICTMENT OF DONALD TRUMP

Merrick Garland hasn’t tipped his hand, but it's clear to me that he will bring charges against the former president. 

As an appellate judge, Merrick Garland was known for constructing narrow decisions that achieved consensus without creating extraneous controversy. As a government attorney, he was known for his zealous adherence to the letter of the law. As a person, he is a smaller-than-life figure, a dry conversationalist, studious listener, something close to the opposite of a raconteur. 

And as the nation’s chief law-enforcement officer, he is a hyper-prudential institutionalist who would like nothing more than to restore—quietly and deliberately—the Justice Department’s reputation for probity, process, and apolitical dispassion.

But this is what I believe he is preparing himself to do.

I have been observing Garland closely for months. I’ve talked with his closest friends and most loyal former clerks and deputies. I’ve carefully studied his record. I’ve interviewed Garland himself. And I’ve reached the conclusion that his devotion to procedure, his belief in the rule of law, and in particular his reverence for the duties, responsibilities, and traditions of the U.S. Department of Justice will cause him to make the most monumental decision an attorney general can make. 

But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.  

In the case of Donald Trump, the prosecutor is Merrick Garland and discretion would allow him to decide that an indictment is simply not worth the social cost, or that the case is strong but not strong enough. Garland’s critics fret that when confronted with this moment, his penchant for caution will take hold.  

With the investigation of Trump, the legitimacy of the judicial system is at risk. Of course, the MAGA set will never regard an indictment of their leader as anything other than a sham. But the perceptions of the rest of the country matter too. .... Indicting the candidate of the opposing party, if it occurs, should feel reluctant, as if there’s no other choice.  

I was surprised he would resist the term [institutionalist]. I think he wanted me to understand that he is alive to the perils facing democracy—and isn’t naïve about what it will take to defeat them. Norms alone are not enough to stop a determined authoritarian. It wasn’t quite a reversal in his thinking; radicalizing Merrick Garland would be impossible. But it was an evolution. His faith in institutions had begun to wobble.  

With his optimism bruised, and his heightened sensitivity to the imminent threats to democracy, he’s shown a greater appetite for confrontation. There is no sharper example of this than his willingness to spar with Trump over the sensitive documents stashed at Mar-a-Lago.  

The deadline for indicting Trump is actually much sooner than the next Inauguration Day. According to most prosecutors, a judge would give Trump nearly a year to prepare for trial, maybe a bit longer. That’s not special treatment; it’s just how courts schedule big cases. 

The excruciating conundrum that Garland faces is also a liberating one. He can’t win politically. He will either antagonize the right or disappoint the left. Whatever he decides, he will become deeply unpopular. He will unavoidably damage the reputation of the institution he loves so dearly with a significant portion of the populace.

Faced with so unpalatable a choice, he doesn’t really have one. Because he can’t avoid tearing America further apart, he’ll decide based on the evidence—and on whether that evidence can persuade a jury. As someone who has an almost metaphysical belief in the rule book, he can allow himself to apply his canonical texts.

That’s what he’s tried to emphatically explain over the past months. Every time he’s asked about the former president, he responds, “No one is above the law.” He clearly gets frustrated that his answer fails to satisfy his doubters. I believe that his indictment of Trump will prove that he means it.

Foer’s reasoning makes sense, but is it right? No matter what choice Garland makes, one side will dislike or hate his decision. Foer understands the propaganda bonanza that Trump and the radical right propaganda Leviathan would create and unleash on the American people if there is an indictment. That is something Garland abhors. Foer foresees that a trial of Trump (i) would turn into a “carnival of grievance” and “a venue for broadcasting conspiracy theories about his enemies,” and (ii) be a “flash point for an era of political violence” with protesters and counter protesters outside the court, possibly leading to street violence. Social damage will be enormous. In my opinion, Foer is correct on all counts. 

But will Garland indict Trump? Personally, it does not feel that way based on Garland’s record to date. But if Foer is right about what drives Garland, he should be be and probably is right. 

If Foer is right, will it be too little too late to indict, try and convict Trump? It feels that way to me, but I could be wrong. The poison and horrifying autocratic-theocratic extremism that Trump unleashed on American society and the Republican Party is an uncorked genie. It is toothpaste out of the tube. But that assessment could also be wrong. And, if Trump is exonerated, he would be politically invincible. Democracy, the rule of law and secularist pluralism would fall to some form of cruel autocratic, plutocratic, brass knuckles capitalism and Christian theocratic kleptocracy.

Time is running out, or already has

As Foer points out, time for Garland to decide is running out. In my opinion, it may already be too late. If Garland indicts this month and the court gives Trump about one year to prepare, the trial would start in Oct. or Nov. 2023. Trump, as usual, would do everything in his power to delay and derail the court case, all the while whipping up his loyal base with faux grievances, lies and slanders. If a Republican is elected president in Nov. 2024, the lawsuit would almost certainly be dropped soon after the new president would be sworn in on Jan. 20, 2025. That would forever be the end of justice and the rule of law for Trump. He would forever be untouchable. And, democracy and the rule of law would continue their fall.

If that analysis is right, maybe Garland’s best choice is to not indict Trump and pray that democracy, inconvenient truth, secular pluralism, the rule of law and civil liberties can at least partly survive and remain more or less relevant. Either way, the rule of law and the DoJ and the rule of law will take another major hit in public trust.

At least for democracy and the rule of  law, the situation probably is a lose-lose. The American public is polarized and distrustful because poisonous dark free speech has deceived and captured tens of millions of minds.

News bits: Fibbing, COVID and drug prices

The ex-president aggressively fibbed --

no consequences are on the horizon 

CNN writes:

Newly released emails debunk Trump and allies’ attempts to blame the GSA for packing boxes that ended up in Mar-a-Lago. .... The email exchange between GSA officials and [Trump aide] Harrison is one of more than 100 pages of emails and documents newly released by the GSA that debunk claims from Trump and his allies that the government agency is to blame for packing the boxes containing classified documents that were later recovered by the FBI during the search of his Mar-a-Lago resort in August.

A spokesman for Trump did not directly address how these emails dispute claims made by the former president and allies, and instead attacked the Biden administration.

“A routine and necessary process has been leveraged by power-hungry partisan bureaucrats to intimidate and silence those who have dared to support President Trump and his America First agenda,” said Trump spokesman Taylor Budowich. “Why? Because Democrats have done nothing to deliver for the American people and they are left scrambling to fabricate a new witch-hunt to distract from their abject failures.”

That raises a thing or two. One, if Trump runs for president again in 2023 and 2024, he will be the Republican nominee. Most rank and file Republicans will vote for him despite his lies, crimes, treason and all the crap he has pulled. Most Republican elites will support their nominee. What does that tell you about most (~97% ?) of the GOP, e.g. pro- or anti-democracy, pro-or anti-truth, pro- or anti-rule of law, etc.?

Another thing, does anyone notice how Trump defends himself with blatantly obvious deflections, but that makes no difference to most Republicans? Most would still vote for and defend him if he runs for office again. Most who would not support Trump have been RFINO hunted out of the Republican Party.

COVID is partisan

New research from the National Bureau of Economic Research indicates that COVID deaths are higher among Republicans. The data was based on mortality data from 2018 to 2021 in Florida and Ohio. NBER writes:

Political affiliation has emerged as a potential risk factor for COVID-19, amid evidence that Republican-leaning counties have had higher COVID-19 death rates than Democrat-leaning counties and evidence of a link between political party affiliation and vaccination views. .... We estimate substantially higher excess death rates for registered Republicans when compared to registered Democrats, with almost all of the difference concentrated in the period after vaccines were widely available in our study states. Overall, the excess death rate for Republicans was 5.4 percentage points (pp), or 76%, higher than the excess death rate for Democrats. Post- vaccines, the excess death rate gap between Republicans and Democrats widened from 1.6 pp (22% of the Democrat excess death rate) to 10.4 pp (153% of the Democrat excess death rate). The gap in excess death rates between Republicans and Democrats is concentrated in counties with low vaccination rates and only materializes after vaccines became widely available.

That is more evidence that COVID vaccines work. It is also evidence that cult loyalty is killing Republican partisans more than necessary. 

Republicans want to repeal drug price controls

The Democratic bill that empowered Medicare to negotiate drug prices is being attacked by some Republicans. They claim it will slow drug development and/or reduce availability of existing drugs. Both claims are lies, including lies of omission. Florida Politics writes:

In anticipation of Midterm Election results, U.S. Sen. Marco Rubio has filed for a do-over of the legislation widely expected to reduce out-of-pocket drug costs for patients and lower Medicare costs.

Rubio has joined with fellow Republican U.S. Sens. James Lankford, Mike Lee and Cynthia Lummis in introducing the Protecting Drug Innovation Act that would roll back the feds’ authority to negotiate, set and control drug prices under Medicare.

“Democrats’ price controls will hurt Floridians,” said Rubio’s statement that his office released Friday. “There will be less innovation, which means life-saving cancer drugs may not be developed. There will be less production, which means life-sustaining insulin may be harder to find.”

With Rubio’s name on new legislation that would mean taking off the cap that limited seniors’ out-of-pocket drug costs to $2,000 a year, his challenger seized on the opportunity. Democratic U.S. Rep. Val Demings, running to unseat Rubio, released a statement Friday on the bill.

The Republican argument here is that lower drug prices will stop or slow development of new drugs. That may be true to some extent, but so what? First, most new drugs these days are me-too variants of drugs already on the market. When one looks at cost-benefit for new drugs, it is usually crappy. 

Second, if the private sector does not want to innovate without outrageously high profit margins, then let new drugs come from academic research. That would slow things down, but that's what we would have to live with. So far, one can strongly argue that the private sector is a failure in health care because the profit motive corrupts the whole health care sector, from drug companies, to insurance companies to actual health care providers. Everyone is chasing dollars first and foremost. Patients and the cost burdens on patients and/or taxpayers are not very important. We get poor value for our money

Another point: The price and availability of insulin has little to do with negotiated drug prices. There would still be profit in negotiated insulin prices, just not outrageous profit. Insulin, like lots of old but still effective drugs, has been on the market for decades. The insulin molecule as a drug is not going to change. There is nothing left to innovate. Despite no innovation, for-profit drug drug companies jacked up the price of insulin far more than inflation would dictate. That was greed pure and simple. Negotiated pricing would keep callous capitalist greed in check, but not affect the drug in any other way. 

So, if profits from negotiated drug are not enough for the private sector, then the government should step in a do the job the private sector is too greedy to do.

As usual, pro-business, anti-consumer Republican elites are lying about why they do what they do. In return, a grateful drug industry will dump cash into the politician’s accounts in return for their services in defense of the indefensible.

One photo shows how quickly things change when religious zealots take over

 

When someone showed me this photo, I was asked where it was. I never would have guessed. No one then thought things would change so drastically so quickly:

Here is an image from Iran of a woman cutting her birthday cake in 1973, 5 years before the Islamic Revolution there. Just wanted to point out how things can change when the government gets religious.

By the way, if you want to see more pictures of life in Iran before the Islamic Revolution, click here. The photos are indistinguishable from others in any American city from that time period. Just please don’t tell me it can’t happen here.

https://www.dailykos.com/stories/2022/10/8/2127729/-One-photo-shows-how-quickly-things-change-when-religious-zealots-take-over

By the wBy the way, if you want to see more pictures of life in Iran before the Islamic Revolution,ay, if you want to see more pictures of life in Iran before the Islamicperiod. Ju. The photos are indistinguishable from others in any American city from that time period. Just please don’t tell me it can’t happen here. y, if you want to see more pictures of life i. The photos are By the way, if you want to see more pictures of life in Iran before the Islamic Revolution, click here. The photos are inBy the way, if you want to see more pictures of life in Iran before the Islamic RevolutBy the way, if you want to see more pictures of life in Iran before the Islamic Revolution, click here. The photos are indistinguishable from others in any American city from that time period. Just please don’t tell me it can’t happen here. ion, cliBy the way, if you want to see more pictures of life in Iran before the Islamic Revolution, click here. The photos are indistinguishable from others in any American city from that time period. Just please don’t tell me it can’t happen here. ck here. The photos are indistinguishable from others in any American city from that time period. Just please don’t tell me it can’t happen here. distinguishable from others in any American city from that time period. Just please don’t tell me it can’t happen here.  the way,By the way, if you want to see more pictures of life in Iran before the Islamic Revolution if you want to seBy the way, if you want to see more pictures of life in Iran before the IslamicBy the way, if you want to see more pictures of life in Iran before the Islamic Revolution Revolutione more pictures of life in Iran before the Islamic Revolutionble from others in any American city from that time period. Just please don’t tell me it can’t happen hBy the way, if you want to see more pictures of life in Iran re the Islamic Revolutionere. n here. me it can’t happ