If the Supreme Court Won't Prevent Gerrymandering, Who Will?

By Sam Wang, The New York Times

14 July 19

A progressive take on states’ rights can come to the rescue.

rogressives have long looked to federal courts to guard the rights of racial minorities and dissenters. But that protection is weakening. Faced with the enormous injustice of partisan gerrymandering, the Supreme Court last month permitted politicians drawing election district maps to discriminate by party and even potentially mask their racial “packing” and “cracking” as mere partisanship. To fill this growing gap, reformers should take an unexpected route: states’ rights.

Chief Justice John Roberts wrote an opinion that allowed two gerrymanders, one committed by Republicans in North Carolina and one by Democrats in Maryland, to stand. His reason? He could not find a standard to judge when an offense had occurred. He rejected a considerable body of empirical research, including suggestions by my colleagues and me in an amicus brief.

Federalism, in which regional governments retain considerable power, has been invoked in the past to take away representational rights. But a local approach, properly applied, can also restore them. In a stinging dissent, Justice Elena Kagan pointed out that where the Supreme Court had failed to define and regulate partisan gerrymandering, four lower federal courts had succeeded.

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Hey, Nancy Pelosi: Please Stop Coddling Donald Trump

By Andrew Sullivan, New York Magazine

14 July 19

 

suspect many of us voted for the Democrats last fall because we wanted a serious check on President Trump’s intensifying authoritarianism. That includes many of us who don’t support the far left’s takeover of the Democrats, but who saw the urgency of an opposition with teeth, confronted as we are by a deranged, tyrannical bully in the White House. What would happen if the Mueller Report emerged with a Republican House still intact, we worried? How could we begin to investigate Trump’s tax returns, or his cronies’ corruption, or his foul pedophile friends, or his murky real estate money-laundering, if Paul Ryan, the Randian eunuch from Wisconsin, were still in charge?

It turns out, six months later, that on all these topics, the Democratic House majority didn’t matter much at all. Whenever a serious administration abuse of power seems to demand investigation, Speaker Pelosi springs almost instantly into inaction. There is nothing she won’t not do.

When, for example, a highly dubious decision years ago by Labor Secretary Alex Acosta — to give Jeffrey Epstein an incredibly lenient plea deal for the sexual abuse of 40 underage girls — blew back into the headlines, Pelosi instantly ruled out any notion of impeaching Acosta: “It’s up to the president, it’s his Cabinet. We have a great deal of work to do here for the good of the American people and we have to focus on that.”

Really, Madam Speaker, oversight of shady dealings by Cabinet officials is the work of the president now? And holding a corrupt administration to account is not “work … for the good of the American people”? This “distraction” from real “work” meme is, in fact, a Republican talking point. House Minority Whip Steve Scalise described the oversight process this week as “presidential harassment rather than focusing on the priorities of the American people.” Trump himself tweeted a demand that Democrats “go back to work!” How practically different is that spin from Pelosi’s? (Even though the question is largely moot now that Acosta has resigned, it came as a relief to see Elijah Cummings was pledging to investigate him.)

Later this month, we will finally get testimony from Mueller. This week, the House Judiciary Committee has issued 12 new subpoenas for Trump officials, including Jared Kushner. This time, they tell us, they’re serious. These subpoenas come after almost all previous ones were rebuffed entirely by an unprecedented blanket assertion by the president that all oversight inquiries are of a partisan nature and should therefore be ignored. But last month the Democrats passed a resolution seeking court enforcement of their subpoena power. How long will this process take? Who knows? Many seem to think the process could go on for years - probably likely to take longer than the rest of Trump’s term - thereby nullifying any practical oversight at all, and giving all future presidents a precedent of immunity by stonewalling. What we do know is that six months into this Congress, we know nothing more from their efforts than we did in January. Could you speed this up if these subpoenas were part of an impeachment inquiry? Almost certainly yes. But Pelosi appears to be in no hurry at all.

Or take the issue of Trump’s tax returns. Judd Legum is aghast that it took the Democrats four months even to ask for them! When Trump (surprise!) refused to hand them over, Ways and Means chairman Richard Neal filed a lawsuit arguing that the reason he was doing so was not because he wanted to see if Trump had committed fraud or other financial crimes, but that he needed “to decide if legislative action is needed” on “the mandatory presidential audit program.” He believed the claim should be as modest as possible to help guarantee an eventual court victory. But “eventual” is the operative word here.

The goods are there though. So when Governor Andrew Cuomo signed a bill allowing Trump’s state tax returns to be examined directly by Neal, Neal refused, even though the data would be largely the same as the federal returns. He preferred to wait for the result of his own federal legal case — which could be months or years in coming! And so the clock ticks on. It will likely tick past the next presidential election. This is the fierce urgency of whenever. It is an effective abandonment of a critical tool for exposing presidential corruption.

Maybe Pelosi could hold hearings and then merely vote on a measure of censure of the president? But no: that’s not on the table either. “I think censure is just a way out,” Pelosi said last month. “In other words, if the goods are there, you must impeach.” But the goods are there. We waited months on a thorough investigation, and it found multiple cases of obstruction of justice, a supremely impeachable offense for Congress to pursue. Isn’t she, rather than censure, Trump’s “way out”?

What would she use her oversight powers for? She has argued, for example, that the attorney general openly “lied under oath” to the Congress, her branch of government, a criminal offense. So what will she do? Impeach? Censure? Wait for it: She won’t be “speaking to anything more that he has to say.” Bill Barr must be trembling in fear. What did she do when Trump crossed a clear Constitutional red line and, via a fake national emergency, funneled money to his wall against Congress’s express wish? Yes, you guessed it: nothing. Not even censure. She’s a Speaker who will jettison even the power of the purse rather than take on a tyrannical president.

For good measure, she told Maureen Dowd that Trump “every day practically self-impeaches by obstructing justice and ignoring the subpoenas.” A word to Madam Speaker: People cannot actually impeach themselves. And if you read the Constitution, it’s your job. Why are you persistently refusing to do it?

I know that aggressive oversight, especially impeachment hearings, is a politically fraught decision, full of risk. I know the polls suggest it splits the country and, by her own expert counting, divides the House Democrats as well. I know her party won the House in 2018 by focusing on health care, rather than Trump. I think that should be their focus next year as well. But fortune favors the brave. If she doesn’t act against a serious threat to the Constitution, voters will infer that the Democrats don’t actually believe there’s a threat. If she lets this president own the narrative, as he keeps doing, Democrats will end up following his story rather than their own.

And there is no essential conflict between holding impeachment hearings and making the case for your policies. It should be possible for a competent and gifted Speaker to do both. But Pelosi, alas, is not exactly gifted in persuasively making a case for anything outside her hyperliberal constituency. And she’s deeply unpopular across the country. She has a worse favorable/unfavorable rating than Trump — and during the partial shutdown in January, she had the lowest ratings of any politician in the country. But if she can’t deploy rhetoric or popularity, at least she could use her Constitutional prerogative.

Her strengths lie in her considerable skills for legislative cat-herding and winning news cycles in the mainstream liberal media. Because she is the first female Speaker, she is largely untouchable in the nonconservative press. I love Maureen Dowd, but her most recent column was beyond fawning. The only substantive achievement Dowd could point to in her glowing account of Pelosi’s political talents was that Pelosi had “gotten into Trump’s head” and that she “has offered a master class, with flair and fire, on how a woman can spar with Trump.” Seriously? Yes, she can provide some cutting retorts. But, substantively, a master class in capitulation strikes me as more accurate.

And isn’t it more plausible to say that Trump has gotten into Pelosi’s head? Here’s an example of what Dowd calls her “flair and fire”: “Oh, [Trump would] rather not be impeached … But he sees a silver lining. And he wants to then say, ‘The Democrats impeached me but the Senate’ — he won’t say Republicans — ‘exonerated me.’” So fucking what? Of course he’d say that. Why are you allowing his future spin to affect your present Constitutional duty? You’re in a defensive crouch, Madam Speaker. Against a bully, that never works.

The best gloss I can think of to explain Pelosi’s abdication is that she believes that it’s only a matter of time before Trump loses in 2020, so why risk alienating moderates who get nervous with the I-word now? Why impeach when the Senate will acquit? Why go to war now, when it might imperil electoral victory next year?

Here’s why. There is a strong possibility that Trump is going to win the next election. I know it’s early but the head-to-head polling against most of the Democratic candidates is very close — and that’s before the GOP has gotten to work on oppo research on those Democrats who aren’t well known. Incumbency in a strong economy is usually dispositive. The Dems have almost all decided to run further to the left than even Hillary’s woke-a-thon in 2016: free health care for illegal aliens, abolishing private health insurance, publicly funding abortions, declaring America in 2019 a product of white supremacy, etc. Their strategy seems designed to alienate every white person in the Midwest and give Trump another victory in the Electoral College. Only Biden has a serious polling advantage, and he’s looking frail and weak.

If Pelosi keeps playing it safe and Trump is reelected, it will set a precedent that a president can obstruct justice and be rewarded for it. He can avoid all serious congressional oversight and get away with it. The Congress will continue its journey as a withered limb in a Constitution that actually gives it pride of place, Article 1. And every time Trump gets away with another crime, or abuse of power, he is emboldened. Vindicated by re-election? God help us.

And what Trump now knows after six months of Democratic control of the House is that he is as free from congressional checks whether it is run by Democrats or Republicans. Pelosi has shown every future president that they can obstruct justice with impunity, refuse every subpoena with impunity, lie with impunity, and violate the separation of powers with impunity.

At some point, Madam Speaker, history may show you had one critical chance to stop this slide toward populist authoritarianism. And you decided you had better things to do.

***

How the Left Is Losing in Britain

Watching the Democrats grapple with the debate over how radical a policy agenda they intend to present to the public next year has been an unedifying but fascinating experience. In a turbulent time, as white nationalism seems to have absorbed what’s left of the old GOP, left populism seems to have seized the energy of the Democrats.

I may not agree with all of it, but it definitely seems more apposite to the moment than a retread of the neo-liberalism of Blair or Obama. I’m not one of those who think radicalism cannot win a majority. I mean, look at Trump. And recall Bernie’s strong run in the other direction in 2016. And then there’s the example of the British Labour party, which saw its support jump in the last election from 30 to 40 percent in six weeks as it promoted the most left-wing agenda in British history. I wrote about the parallels a year ago, and thought they were well worth watching as the future unfolded.

Well, I’ve kept watching, and a year on, the bloom has definitely disappeared from Labour’s red rose. Last year, in July 2018, Labour was trailing the flailing Conservatives by a handful of points in the Wiki poll of polls. This July, Labour is leading the Tories by a few points. So on the surface, some small progress. But then look at the raw numbers. Last July, Labour had about 39 percent of the country behind them. This July, they have only 24 percent — a near halving of support. Yes, the Tories have done even worse, as they flunked Brexit. They’ve sunk from 41 percent to a staggering 23 percent in the poll of polls, as Boris Johnson seeks to lead them.

Where did all the Tory and Labour voters go? On the right, to a party that didn’t exist a year ago — the Brexit party — which now garners 23 percent, and, on the left, to the Liberal Democrats (a pro-EU party) which now has 19 percent. If an election were held tomorrow, Nigel Farage, the E.U.’s nemesis and Trump flunky, could even be prime minister, with the once-mighty Tory party reduced to being junior partners in a right-populist coalition.

What has happened to the left? Like the right, it has effectively split in two. Pro-E.U. moderates who want a second referendum to stay in the E.U. have sought refuge in the Liberal Democrats. Labour has tried to retain its pro-Brexit working-class base while signaling hostility to any form of Tory Brexit — and has confused and alienated many of its supporters.

Britain’s left now has the equivalent of a Biden party and an AOC party. And Britain’s proudly socialist Labour leader, Jeremy Corbyn, the AOC equivalent, has become increasingly unelectable as prime minister, even as Labour’s left-wing base still adores him. On Wednesday, the BBC broadcast a documentary featuring eight Labour Party officials, who complained that their attempt to identify and remove anti-Semites from the party was interfered with by Labour’s top leadership. Thirty more whistle-blowers are testifying for a pending independent investigation of the party leadership’s conscious protection of Jew-haters.

“The testimonies of whistleblowers confirm what we have suspected for some time,” said the Jewish Labour Movement in a statement. “The culture and scale of antisemitism within the party has been perpetuated and exacerbated by those at the very top.” Left extremism, in other words, has eclipsed left radicalism and hobbled the viability of the party. All the promise of 2017 has evaporated. In a YouGov poll this week, Labour had dropped to fourth place with 18 percent support — the lowest since opinion polling began in the 1940s (apart from a short period in the depths of the 2009 recession, when the last Labour government was in its final days under Gordon Brown).

In such a volatile time, it would be foolish to predict the future. But if the past six months prove anything, it is that right populism in Britain is beating left populism. Culture is trumping economics. If Boris does get the U.K. out of the E.U. by Halloween, it’s easy to see Brexit party voters flooding back to the Tories. If a no-deal Brexit destroys the economy, maybe Labour has a chance. But maybe not. Many Brits will worry that adding 1970s left socialism to a recession might be the worst of all possible worlds, and stay with the Tories. And it’s close to impossible to see moderate Liberal Democrats, in such a situation, returning to an extremist Labour Party led by anti-Semites.

If Democrats believe that there’s a left-populist tide in their favor next year, the British example suggests one thing. If you don’t keep your extremists in check, right populism based on restricting immigration and opposing wokeness will win.

***

Lying About Stonewall 

If you followed the coverage of the 50th anniversary of the Stonewall riots — and how could you avoid it? — you may well have learned that the key players in the entire insurrection were “trans women of color.” An op-ed in the New York Times insisted that Stonewall was “where trans women of color led the resistance that started the national L.G.B.T.Q.-rights movement.” A recent documentary by David France on Marsha P. Johnson and Sylvia Rivera, two trans women of color who joined the riots, called them the “co-founders of the modern gay rights movement.” The Human Rights Campaign asserted that “most of [Stonewall’s regulars] were trans women of color.” Pete Buttigieg noted that Pride “celebrates a movement that traces back to the courage of trans women of color 50 years ago this weekend.”

New York City will even create a new statue to honor Rivera and Johnson, the two “foremothers of the modern LGBTQ rights movement.” Here’s a classic summary of the left consensus that the media hasn’t bothered to query very much: “The movement was led by the most oppressed members of the LGBTQ community, including people of color, people experiencing homelessness and transgender activists. It is the seed that planted the modern LGBTQ movement.” In fact, in many demonstrations and marches last month, one chant was particularly prominent: “It’s our history, don’t Deny it! Stonewall was a Trans Riot!”

It takes the fearless gay writer, James Kirchick, to note that all of this is untrue. It is, in fact, almost Stalinist in its conscious altering of history to comport with current ideology. The denizens of Stonewall, and the overwhelming majority of the rioters, were cis white gay men. Kirchick meticulously goes through all the historical sources, and the most authoritative accounts from historians, and has the goods. Stonewall was not even friendly to drag queens, or people of color, and was, according to the bar’s owners, 98 percent white male. Even Rivera is quoted as saying that “the Stonewall wasn’t a bar for drag queens. … If you were a drag queen, you could get into the Stonewall if they knew you. And only a certain number of drag queens were allowed into the Stonewall at that time.” In his 1996 book, American Gay, the sociologist and anthropologist Stephen O. Murray writes that “men familiar with the milieu then insist that the Stonewall clientele was middle-class white men and that very few drag queens or dykes or nonwhites were ever allowed admittance.”

“Drag queens are part of what went on. Certainly one of the most courageous but there were maybe 12 drag queens … in thousands of people,” one participant, Craig Rodwell, later recalled of the riots that followed. In all the photographs taken that night, only one transgender person can be identified, and witnesses said she played no part in the riots. Drag queens, moreover, are not what we would now call “trans.” Some may have been, but it’s not entirely clear. Of the two “co-founders,” neither Johnson nor Rivera were even there when the riot started. One, by her own account, was at a party uptown until after the melee had erupted; Rivera was, according to one source, sleeping after using heroin in a nearby park.

The stories of Rivera and Johnson are moving ones. They were part of the subsequent gay-rights movement and absolutely deserve recognition. Their victimization by society and by many white gay men at the time is worth revisiting and emphasizing. But the attempt to rewrite history to advance critical queer theory’s view of intersectional victimhood is a deeply dishonest and disturbing one. That it is propagated even by the biggest gay-rights groups is as depressing as it is predictable. It’s also telling that so much of mainstream media is now so fearful of offense that it takes these lies at face value.

But why erase cis gay white men from gay history? Why ignore all the gay-rights activism before Stonewall? It seems to me that it is because the critical race and gender theory left cannot accept that white cis men could ever have been the pioneers of gay and lesbian and transgender progress. The very race and gender of the rioters violates the social-justice hierarchy, in which trans women of color are by definition preeminent and gay white cis men are part of the patriarchy, i.e. the enemy. If history disproves this, history must be altered. And so it has been — by activists and journalists alike.

See you next Friday.