Fridays with Nicole Sandler

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53 replies
  1. tinaotinao says:

    Alrighty then ladies, what’s the lawyer’s names again?
    Also, I can’t believe the thin defense of a made up reality from the premies…and I do understand our future is in play, but I want them to face the case! The supreme court should not be fact free!!!!!
    Face the music boys.

  2. dark winter says:

    ACTIVISM. Wonderful show tonight! Thank you so much Marcy and Nicole. activism. make it count.

  3. David F. Snyder says:

    Great show. Sobering as hell, though. Be pro-active for freedom from fascism. If you’ve not yet read The Mahabharata (van Buitenen’s translation is great) then I recommend it, the parallels of the main storyline with our current times is astonishing. I do think cheaters always lose in the long run; but, as Maynard Keynes once wrote, in the long run, we’re all dead.

    • Fancy Chicken says:

      Another great book is “From Dictatorship to Democracy” by the incredible Gene Sharp.

      I suggest it because he focuses on the three parts of government and how they must operate to engender democracy and most importantly how to transform them.

      His section on the Judiciary and how to transform it gives me great hope that we can move past this activist hard right court.

      It’s my go to book when I feel like America is going down a hole it can’t get out of.

  4. originalK says:

    It won’t make anyone feel better, but there have been many other incompetent and criminal presidents, as well as corrupt and, for lack of a better word, lame-ass supreme court justices. These guys just seem to be a rag-bag of the worst of their qualities and we have had to experience their predictable, avoidable damage in real time.

    I have a teen who is supposed to be taking the AP US History exam next month, and I’m going to give him the prompt “Can you explain to Supreme Court Justice Thomas why JFK wasn’t prosecuted for Operation Mongoose after he left office?” And maybe we’ll cover a bit about how the rhetoric over Ford’s pardon of Nixon or Roosevelt’s detention of Japanese-Americans (’cause he wan’t prosecuted when he left office either now was he?) is being reexamined.

    • David Brooks says:

      I just posed exactly that wording to ChatGPT. It came up with a well-reasoned four-bullet answer, including a discussion of Presidential Immunity. The fourth item was “Prosecuting a former president, especially one as popular and revered as John F. Kennedy, would likely have been politically contentious. Such a move could have sparked public backlash and raised questions about the legitimacy of executive authority in matters of national security.” In other words, it missed the same clue train as a SC Justice.

      • originalK says:

        Oof. No coincidence, no story – I say “supposed to take” b/c I’ve been complicit in neglecting his civic education since November 2016 and can barely stomach a college board approach to the subject. Just 2 days ago, I had to stop myself from going off about a sample essay (for the English Language & Composition exam) on “AI’s (already) measurable humanitarian gains” where AI was conflated with tech.

        • originalK says:

          An update: My Gen Z slacker-peacenik read me like a pamphlet (Cuban coup, Article II, no post-presidency), complained that his class only covered the Cuban Missile Crisis, and couldn’t tolerate listening to any of the voices on the C-SPAN audio files of Thursday’s arguments.

      • still noromo says:

        FWIW, ChatGPT3.5 (I refuse to spend money for access to 4.0) still can’t solve this simple word problem:

        If a hen-and-a-half lays an egg-and-a-half in a day-and-a-half, how many eggs would one hen lay in one day?

  5. thequickbrownfox says:

    What gobsmacks me is that attorneys believe, and have been taught that, “this is what the law is”, and members of the Supreme Court are saying, “No, what you have been taught is not the law, this is what the law actually is”. Basically, 200+ years of jurisprudence is not what law professors and attorneys have thought that it is.

    Welcome to the brave new world, you have no recourse, and what we say is actually ‘the law’.

    • Bob Roundhead says:

      This is the root of what frustrates me about the commentary at this blog. The constitutional lawyers who populate the comments with truly brilliant insight at times seem to have lost touch with the reality of what this court is doing. All of the experience and knowledge that is brought to the table no longer applies. The court, by all appearances, is now the legal mechanism of authoritarian fascism. As Werner Herzog has said, America now knows what it was like to live in Germany in 1933.

      • wetzel-rhymes-with says:

        How are we like the Germans in 1933? We’re sliding into fascism. That can happen to us? We’re Americans! Screw that! Everything we ever thought, the economic crisis, German history, culture, post-war circumstances were not causative. Even Americans in the light of liberty will slide into corruption and tyranny like German society did. Maybe this constant crisis is a message to ourselves that we want to self-annihilate. I am an American. I say screw that. We have our rights embedded in the constitution of our society’s laws. Let’s take to the streets, and then we watch our professors get hauled away. It is dispiriting to say the least.

        The law breaking down, and nice old ladies getting tackled by secret, masked police in America makes people think it is the end of the world. People have an idiotic idea of “apocalypse” just like many picture God in a white beard. People are afraid of dying, or facing death, but everybody dies one by one. It’s just spread out. We all face that. What makes it different is there are children and the shelter of the world we leave them because in the apocalypse that goes too. I think apocalypse is the Being Towards Death for a society in the sense Heidegger meant for Dasein or the individual. We can look at our own great minds on the Supreme Court. They are starting to look like the Germans in 1933.

    • earlofhuntingdon says:

      You premised your earlier comments on this hobbyhorse idea on the work of a single journalist. Those comments suggest even less knowledge of the law and what lawyers are taught than Masha Gessen might have, but they do confirm the cliche that sophomoric reasoning is a contradiction in terms.

      • Bob Roundhead says:

        How did better minds stop Heller? Or Dobbs? Massachusetts v EPA? Sakkett v EPA? The gutting of the voting rights act? Bush v Gore? Sophomoric reasoning aside, you do not need a college degree to see what the court is doing and the direction it is moving the country.

        • bmaz says:

          You want better minds? Then go elect the politicians that will populate the nation’s courts with them. It would be far more fruitful than whining on the internet about it.

        • Bob Roundhead says:

          I 100% agree with you. I do work doing just that. Working phone banks, voter registration drives, canvassing, acts of civil disobedience . I am not whining. Do you have some other suggestions?

        • bmaz says:

          Nope, but I do thank you for doing all that. It really is important. And what is too often missed. Again, thank you.

    • timbozone says:

      Isn’t Obama a Constitutional law scholar? Ah, not entirely…but, like Chesebro, he did work with Laurence Tribe for a time:

      et al

      I bring this up because I we haven’t heard a ton from Obama yet about this rogues Supreme Court. Maybe as the 2024 election heats up?

      • Just Some Guy says:

        Both Biden and Obama taught constitutional law.

        As far as the original comment goes, it’s called Calvinball.

      • bmaz says:

        Obama was a simple lecturer, far from a “scholar”. AI robots could teach law to plebes better than Obama.

  6. Northwind1 says:

    Picture this. A man jumps off a bridge into a river. He is observed to hit the water and then come to the surface but it isn’t clear he is doing anything to save himself. Rescuers are called and they organize an attempt to save the man’s life which is unsuccessful. That evening all of the media are discussing what the victim might have done to save himself. Perhaps, one opines, he might have practiced jumping off of bridges. Another observes he could have used better swimming technique. While these things have a nugget of truth they are irrelevant because it is obvious, in a common sense way, that the man was trying to end his own life. Of course he wouldn’t practice jumping off bridges in such a way that he would survive because he was trying to kill himself.

    As I have argued before it is obvious, in a common sense way, that the Dear Leader is intending to demonstrate his impunity in the face of American law. None of his statements, even the ones that are literally incomprehensible, have to do with anything other than demonstrating this impunity. He and his lawyers can be “mocked” , “shut down”, “slapped” or abused by the judges in this that or the other interminable legal process but he has not yet either succeeded or failed in his main objective of demonstrating impunity. Right now, as we all know, the Supreme Court is rather obviously tilting the system in favour of El Gordo. In spite of game efforts on the part of some prosecutors and judges it has slowly become clear that the bulk of the charges against TFG will not be heard before the election. There are huge judgements outstanding but not yet paid. My point is that the success or failure of his project is only partly and tangentially to do with what this or that jurist does but more to do with whether the American people, steeped in religiosity and marinated in misinformation can shake themselves free of his malign influence.

    I am a regular consumer of emptywheel so that should indicate some interest in the doings of the American justice system and I have realized since 2016 that everyone, bar none, who has some clarity and hope to unite the fragile coalition of interest that is anti-maga should be in the tent. So we need our hardy workers in the vineyards of the law trying not get lost between the 1857 Arizona abortion statute and the Comstock act. But let’s not kid ourselves that some judge or some jury some time or anything other than organizing and preparing to win the political struggle is going to save us. Essentially, only democracy vigorously defended and intelligently applied can save civil society, including the justice system, not the other way around.

    • paulka123 says:

      The justice system points to the people who vote, the people who vote point to the politicians, the politicians point to the courts for who must stop a nascent dictator.

      Meanwhile, he subverts and assimilates the courts, the politicians, the process of democracy, as well as religion, the police, the capitalist powers, the media, etc. Each with their own nugget of persuasion.

      If Trump loses in November, the failures of the system will be irrelevant. If Trump wins in November there will be more than enough blame to go around. Strengthen up that pointer finger, you may need it to find who is to blame.

  7. Magbeth4 says:

    Since January, I have been writhing in existential anxiety over the endless polls and tales of elections, especially, the Presidential one. Yesterday, I regained some rationality and visited my Public Library, returning the Sinclair Lewis novel, “Main Street.” While perusing the shelves, I came upon “Catch and Kill,” the account of nastiness in Trump world and the abominable oaf from Hollywood, with whose name I will not soil EW. I read it in one setting.
    I checked out, as an anti-dote, “The Autobiography of Mark Twain” which I had read a few summers ago…all three, 3+ inches, each, volumes. It was time to regain sanity with intelligent humor, along with the clearing of mind which laughter can accomplish. Today, I read comments about legal arguments, blog and media-induced confusions, and I have come to a sense that all the information that is exposed by Trump’s numerous trials will have a drip-drip-drip effect on the American Electorate which will erode the possibility that he will win any election for the Presidency.

    America, as Sinclair Lewis exposed it to be, and Twain, who showed a brilliant spotlight on its ironies (corruption, bigotry, religiosity, idealism, home-grown “nativism” vs.multi-culturalism) remain, as ever. We have survived an awful lot in this country, from within as well as without. Somehow, I believe we can, as Twain did, laugh our way out of this with well-deserved ridicule for the Trumps, the Kavanaughs, and the Scalitos of this world. We will end up doing the sane thing, if even for only one moment, at the Ballot Box. I still believe in our will to live decent lives and in peace with our fellow Citizens. Experience of everyday encounters confirms this for me, as well as reading the intelligent analysis and comments on pages such as this. And, let us not forget, Europe and other places in the world still look to us with some awe that we pull it off, in spite of occasional madness, such as has been and is chronicled here.

  8. dopefish says:

    Regarding the wacko claim that pardoning Nixon is now considered one of the better presidential decisions (by rightwing nuts perhaps),

    Robert Reich writing in the Guardian less than a week before the SC hearing, described Ford’s pardon of Nixon as “Gerald Ford’s biggest mistake”.

    Nixon infected the modern Republican party with a sickness that would ultimately kill it. Donald Trump has finished the job.

    [NH Governor] Sununu’s willingness to destroy American democracy so his party can stay in power is shared by most Republican office holders today. It is a rejection of American democracy – an abrogation of the self-government that generations of Americans have fought for and died for.

  9. harpie says:

    Chapter 12: Alice’s Evidence

    […] At this moment the King, who had been for some time busily writing in his note-book, cackled out “Silence!” and read out from his book,
    “Rule Forty-two. All persons more than a mile high to leave the court.”

    Everybody looked at Alice.

    “I’m not a mile high,” said Alice.

    “You are,” said the King.

    “Nearly two miles high,” added the Queen.

    “Well, I shan’t go, at any rate,” said Alice:
    “besides, that’s not a regular rule: you invented it just now.”

    “It’s the oldest rule in the book,” said the King.

    “Then it ought to be Number One,” said Alice.

    The King turned pale, and shut his note-book hastily.
    “Consider your verdict,” he said to the jury, in a low, trembling voice. […]

    • harpie says:

      Dreeben [to Roberts]: There is no immunity unless this court creates it today.

      Marcy: SCOTUS argument TRUMP v. US [presidential immunity]: 4/25/24

      […] Roberts exploits Dreeben’s treatment of one line of DC Circuit opinion as a tautology to use to dismiss entire opinion.

      Roberts now saying that the things that protect NORMAL citizens from abusive prosecution — like a grand jury — aren’t enough for the President.

      Dreeben: There is no immunity unless this court creates it today.

      SCOTUS now really bothered that Trump would have to go to trial. This is insanity.

      Kav: It’s a serious constitutional question whether statutes can be applied to the President.

      This is insane. But I guess he heard Trump’s demands. […]

      • earlofhuntingdon says:

        Quite a few Republicans, Dick Cheney and Bill Barr among them, believe Nixon was wrong to resign. They say now that he should have stayed and dared his party to remove him and the DoJ to prosecute him.

        It’s an easy counter-factual position to take, since it could never be tested. But it’s become a testosterone-test on the right. In that sense, Trump is a stand-in for long-held beliefs of Barr, Alito, Thomas, ad nauseum that they finally get to test.

    • harpie says:

      In short, fiction v irl:

      1865: Alice [to the King]: “besides, that’s not a regular rule: you invented it just now.”

      2024: Dreeben [to Roberts]: “There is no immunity unless this court creates it today.”

  10. klynn says:

    In addressing the immunity and “official acts” stance and making the point that having an electoral opponent assassinated as an official act, floored me. To potentially give a pass for that scenario is such a national security nightmare. Any foreign leader could stage an assassination that looks like it was a political opponent assassination by an incumbent President . It would create such an easy opportunity to tear the country apart.

    • earlofhuntingdon says:

      Because, of course, those an immune govt officer might order his govt to hunt to extinction would never return the favor. The S.Ct. majority’s questions suggest they would find that sort of vendetta world just peachy.

    • Rayne says:

      Yup. Was thinking of India as an example; Biden admin has had words with India after the murder of an Indian Canadian Sikh separatist in Canada ordered by an Indian government official. Hypothetically, it’s not hard to imagine India setting up an assassination on US soil so that it looked like a POTUS-ordered hit if a more supportive US regime turned a blind eye to India’s assassinations abroad.

      Might not need a nation-state, either; in theory certain organized crime syndicates have enough technical prowess to do this, just need the right quid pro quo.

      • harpie says:

        Huh…look what I just saw, from Justin Hendrix:
        Apr 29, 2024 at 7:37 AM

        “This examination of Indian assassination plots in North America, and RAW’s increasingly aggressive global posture, is based on interviews with more than three dozen current and former senior officials in the United States, India, Canada, Britain, Germany and Australia.” [WaPo link]

        Links to:
        An assassination plot on American soil reveals a darker side of Modi’s India India’s intelligence service has aggressively targeted Indian diaspora populations in Asia, Europe and North America, officials said.

        [] harpie: Another bonesaw-brigade?

        • Rayne says:

          It’s the original bonesaw brigade I worry about most when it comes to manipulating SCOTUS and immunity to obtain desired results. India could be easily bent into an intermediary role to obtain their own outcomes as well.

          This is when endemic gun violence in the US reaches another level of national security threat: it’s easy for other countries to say a killer and their country will get away with assassination on US soil because it could be shrugged off as simply American violence. (There’s been at least one gun death within the month which looked sketchy to me but local news treated it as same-old-same-old.)

          Thanks for the link, I hadn’t yet read WaPo today.

    • phred says:

      The hubby said something last night that made me wish that another hypothetical had been raised… Rather than assassinating a “political” rival, could a President order the assassination of a member of the Supreme Court in order to shift the majority to his favor? If it ensured the President’s policies survived judicial review, would that constitute an official act?

      It’s as absurd as the notions they are entertaining, but I would have liked to have heard whether that particular official act would have given any of the men pause.

      • klynn says:

        IANAL but that is a whole additional dynamic to weigh.

        SMH at how irresponsible it was to have the court give life to this criminal suggestion. Thankful for the female justices pushing back and speaking some sanity.

      • earlofhuntingdon says:

        Were the Court to give Trump the absolute immunity he claims is necessary to be president, then the answer is obviously, yes. He could do anything to anybody, anytime, without legal consequence.

        Subordinates who followed his orders, on the other hand, might end up being court-martialed or prosecuted and imprisoned for life. Being Trump, he wouldn’t give a shit. He would abuse his pardon power only enough to keep people willing to do his bidding.

        That’s one reason it was so absurd for the Court to entertain Trump’s immunity plea. The Court might bear in mind, though, that if it decides this case before Trump wins – or doesn’t win – a hateful Democrat might have that immunity, and do something positive with it.

        • xyxyxyxy says:

          For that reason they would not rule until after the election and most likely before Jan 20.

          [Moderator’s note: FYI, this comment and the one you attempted just before it (deleted as duplicate) were caught by Spam filter due to a typo in your email address. Check your browser’s cache and autofill to avoid repeat typos. /~Rayne]

        • klynn says:

          I continue to think about this aspect of immunity and national security threat.

          What is the recourse should a SC justice become a national security threat?

        • earlofhuntingdon says:

          Depends on the nature of the threat. Unless it’s sufficient to justify prosecution – a big hurdle, given the reluctance to publicly admit such conduct – the options seem to be informal, which makes them dependent on willing reactions from a justice and their personal network.

          Half a century ago, in Nixon’s case, his network joined forces against him and forced him out. Many on today’s hard right reject that very dynamic. That’s a governance gap Donald Trump seems inherently suited to identify and make worse.

  11. dopefish says:

    In an opinion piece today in The Hill, law professor Ed Purcell excoriates the Supreme Court for its handling of Trump’s immunity appeal.

    Thus, the only meaningful result of the court’s methodical foot-dragging is the unavoidable conclusion that it has sought to help Trump avoid trial while he campaigns for the presidency. In effect, the court agreed to grant Trump a de facto absolute immunity through the 2024 election. That is an epic constitutional tragedy.

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