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ANALYSIS

Overturning Roe Is Just the Beginning

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Analysis 

The Supreme Court majority built by the hard-right legal movement with help from Republican presidents and senators, and turbocharged by three Trump-McConnell justices, is apparently preparing to overturn Roe v. Wade, eliminating a constitutional right to abortion and potentially eviscerating the constitutional underpinning of rulings protecting privacy and the rights of LGBTQ Americans.

While overturning Roe has been an intense focus and will be a massive victory for the religious right and right-wing legal movement, reversing Roe is just one part of a much broader agenda that has been promoted by the right-wing Federalist Society and allied political operatives who have worked with it to pack the federal courts. Trump basically outsourced his judicial picks to the group’s activists. Now, with the Trump justices cementing a hard-right majority on the Court, Federalist Society lawyers and judges and their political allies can move even more aggressively to reverse a century’s worth of precedents, pulling the constitutional rug out from under the New Deal and Great Society anti-poverty programs like Medicare and Social Security; further gutting voting rights in favor of states’ rights; weakening the separation of church and state; and undermining the federal government’s ability to regulate corporations and protect workers and communities.

Seeking a National Abortion Ban 

A leaked draft of a Supreme Court decision written by Justice Samuel Alito dispenses with any notions of nuance in favor of a complete repudiation and reversal of Roe. If the court ultimately rules along the lines set out in Alito’s draft, abortion would be banned or severely restricted in more than half the states immediately or in short order.

Some states already have bans in place. Some have passed “trigger” laws, most of which would take effect at the moment of Roe’s demise. Others, including Michigan and Wisconsin, still have old laws on the books that will come back into force once Alito and his colleagues have removed the constitutional barrier to their enforcement. While some anti-choice groups have talked about preparing for a “50-state battle,” they have already won many of those battles.

Eliminating Roe would intensify the already existing disparities in access to abortion between states. Many people seeking that care will be forced to travel elsewhere—a fundamental freedom that is also being targeted by anti-abortion legislators.

And for all the federalism-embracing, give-it-back-to-the-states rhetoric, expect anti-choice activists to quickly demand a national ban on abortion. The state-by-state approach pursued by anti-choice activists was a strategic decision to bypass Congress, chip away at Roe, and build momentum toward a day when the Court was in their ideological grasp. But a nationwide ban is their goal.

This is not speculation. The amicus brief submitted by Princeton University professor Robert P. George, a brief cited in Alito’s draft, is clear. George argues that “prenatal persons” and “unborn children” are persons under the 14th Amendment from the moment of conception, and therefore that states should be required to treat abortion as homicide. He argues that Congress would have to enforce such a ruling “if States failed in their duties.” George’s brief mirrors the arguments of the hard-core “personhood” wing of the anti-choice movement, which has successfully pushed anti-choice legislators away from even granting exceptions to abortion bans in cases of rape and incest. The right to contraception is at risk, too, as anti-abortion activists are hard at work to make the public believe that some widely used forms of contraception are the equivalent of abortion.

Eliminating Equality for LGBTQ Americans 

Alito’s draft includes language seemingly meant to suggest that if adopted by the majority, his ruling would not put LGBTQ equality at risk. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Referring to the Court’s rulings in Lawrence v. Texas, which overturned state laws criminalizing homosexual conduct, and Obergefell v. Hodges, which recognized marriage equality, Alito’s draft says that the Court ruling against a right to abortion “does not undermine them in any way,” in part because those decisions do not involve “the critical moral question posed by abortion.”

But that reads as high-level gaslighting.

In a 2020 comment on the court’s decision not to hear a case brought by a marriage-resisting county court clerk, Alito and Clarence Thomas disparaged Obergefell, saying that a right to same-sex marriage cannot be found in the Constitution. And many anti-choice activists have portrayed opposition to marriage equality as inhabiting the same legal and moral plane as opposition to abortion.

A brief submitted by Texas Right to Life was filed by Jonathan Mitchell, the author of the Texas abortion ban that the Supreme Court has allowed to take effect. The brief sneers at “court-invented rights to homosexual behavior and same-sex marriage,” calling the Lawrence and Obergefell decisions “as lawless as Roe.”

Robert George, who argues that states must treat abortion as homicide, is also intensely opposed to legal equality for LGBTQ people. A founder of the National Organization for Marriage, George co-authored The Manhattan Declaration, a 2009 manifesto whose signers frame opposition to abortion and marriage equality as similarly non-negotiable. The manifesto concludes with this:

Because we honor justice and the common good, we will not comply with any edict that purports to compel our institutions to participate in abortions, embryo-destructive research, assisted suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.

Anti-LGBTQ activist Ryan Anderson, a Robert George protégé, has urged anti-marriage equality activists to follow his road map to overturning Obergefell, with the religious right’s anti-Roe campaign as a guide. The first step in his plan was to denounce the marriage equality decision as illegitimate, which George and others have done relentlessly. Other anti-LGBTQ leaders, like Family Research Council President Tony Perkins and National Organization for Marriage President Brian Brown, have also expressed hope that success in eradicating a right to abortion points the way toward doing the same for marriage equality.

And it is not just about marriage. Many religious-right legal and political advocacy groups defended state laws that made gay people de facto criminals and opposed the Lawrence decision. You can hear that in the rhetoric of anti-LGBTQ activists who express a desire to return to a time when gay people were disfavored in law and demonized in popular culture, and already, they are working to return us to that time with a wave of anti-LGBTQ rhetoric and legislation smearing LGBTQ people and their allies as “groomers” and sexual predators.

Indeed, anti-choice activist Janet Porter recently said she hopes to apply the nefarious strategy of Texas’s abortion ban, which allows anyone to sue anyone who helps a person obtain an abortion, to LGBTQ issues in schools, making teachers, librarians, and school board members vulnerable to lawsuits for “pushing this garbage on our children.”

‘Rome Wasn’t Burned in a Day’: Return to a States’ Rights Constitution 

In the name of federalism, the Supreme Court’s conservative and far-right justices have repeatedly weakened the federal Voting Rights Act, giving a green light to state legislators to pass wave after wave of voting restrictions. That is far from the only way that the right-wing legal movement hopes Trump’s justices can continue to “fundamentally change the country.”

In 2017, Republican congressional and White House aides told a conference of religious-right activists that getting a second Supreme Court justice would allow Trump to create “epic, titanic” shifts and undo New Deal and Great Society programs created when Democrats had wide congressional majorities. Trump also filled lower federal courts with ideologically minded judges who give hard-right justices like Alito and Thomas the “troops” to carry out their judicial counterrevolution.

Dismantling much of what the federal government does to address poverty and access to education and health care has been a long-term project, a reality reflected in a bit of Federalist Society humor: “Rome wasn’t burned in a day.” But right-wing funders knew their long-term investments could bring huge returns.

The confirmation of Trump’s third Supreme Court pick, Justice Amy Coney Barrett—who some anti-choice activists believe was anointed by God to help the Supreme Court overturn Roe—could also strengthen the religious right’s already successful push to weaponize and redefine religious liberty in ways that weaken the Establishment Clause, which prohibits the establishment of religion by Congress, and the separation between church and state.

The net result is all too clear. As tragic as it is, the reversal of Roe is just one step in the far-right campaign to rewrite the Constitution and gut fundamental rights, harming millions of Americans in the process.

 

This article was originally published by Right Wing Watch and is republished here by permission.

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ANALYSIS

How Hegseth and Allies Are Waging War Against the US Military to Secure His Confirmation

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5 days ago

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December 6, 2024

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Pete Hegseth, the former Fox News weekend co-host, angrily vowed that his battle to become Donald Trump’s Secretary of Defense would not be “tried in the media,” but that is exactly what Hegseth and his allies are doing — and they’re attacking the reputation and credibility of America’s Armed Forces to make their case.

“I don’t answer to anyone in this group,” Hegseth told reporters on Thursday.

“None of you, not to that camera at all,” he said, as he began pointing. “I answer to President Trump, who received 76 million votes on behalf — and a mandate for change. I answer to the 50 — the 100 — senators who are part of this process and those in the committee, and I answer to my lord and savior. And my wife and my family.”

Earlier on Thursday, Hegseth in a social media post (below) attacked the U.S. Military and the current Secretary of Defense, Lloyd Austin, a decorated combat veteran who fought in two wars.

READ MORE: ‘Melania Grift’: Incoming First Lady Hawks Her Christmas ‘Collectibles’ in Fox Interview

“Maybe it’s time for a @SecDef who has… Led in combat. Been on patrol for days. Pulled a trigger. Heard bullets whiz by. Called in close air support. Led medevacs. Dodged IEDs. And understands—to his core—the power of this photo…because he’s been on that knee before.”

Hegseth was excoriated.

“Odd post,” remarked award-winning journalist Kevin Baron, the former Executive Editor at Defense One. “Lots of confrontational bravado but …the current SecDef Lloyd Austi[n] has literally done this and way, way more, leading larger and larger military commands all the way from West Point to the entire Iraq War and as COCOM… while Hegseth was a TV pundit.”

The Washington Post’s Dan Lamothe, who covers the U.S. Military, added, “This basic description also applies to Lloyd Austin, Jim Mattis, and Chuck Hagel,” all current or former Secretaries of Defense.

Moe Davis, the retired U.S. Air Force colonel, attorney, educator, politician, and former administrative law judge, quipped: “Maybe it’s time for a SECDEF who doesn’t have to pledge he won’t get knee-walking drunk if he’s confirmed and doesn’t have to get his mommy to go on TV to say ‘he’s no longer the reprehensible pervert he was a couple of years ago’ now that he’s the SECDEF nominee.”


Among the common attacks from Hegseth and his supporters is the claim the U.S. Armed Forces is no longer the world’s most lethal fighting force.

U.S. Senator Dan Sullivan made that suggestion to support Hegseth late last month.

“We need to get back to the core mission of the Dept. of Defense. That’s lethality. That’s winning wars. That’s peace through strength,” he declared. “I saw first-hand some of the woke stuff that was happening with regard to the Biden administration. You now, you had a Secretary of the Navy who was more focused on climate change than ship building. One of President Biden’s first executive orders wasn’t focused on lethality, winning wars, it was focused on transgender surgery for active duty troops!”

Sullivan insisted that America needs to “create the most lethal force in the world to deter wars and I think Pete Hegseth is very focused on that and I think that is a refreshing change, a critical change.”

“Lethality” appears to be Hegseth’s marching order, under the implication that America’s military is not lethal—a direct assault on the credibility of the Armed Forces.

READ MORE: ‘Sympathy for Dictators’: Ex-NatSec Officials Warn on Gabbard, Want Closed Door Hearings

“That’s what Donald Trump asked me to do: ‘Your job is to bring a war fighting ethos back to the Pentagon. Your job is to make sure that it’s lethality, lethality, lethality,’” Hegseth said Wednesday, CNN reported. “Everything else is gone. Everything else that distracts from that shouldn’t be happening.”

“Rather than leaning into controversial policies he has supported, such as banning women from combat roles, Hegseth told senators that his aim is to ‘make this military lethal again,’ the [transition team] official said.”

U.S. Senator Katie Britt (R-AL) also promoted the harmful suggestion that America’s fighting forces are no longer lethal.

“I enjoyed meeting with @PeteHegseth and hearing about his plans to achieve President Trump’s peace through strength agenda,” she wrote Thursday. “He is committed to putting our warfighters in the best position and returning the Pentagon’s focus to our force’s lethality.”

On Friday, Vice President-elect JD Vance continued the attack on America’s Armed Forces.

“For too long, the Pentagon has been led by people who lose wars. Pete Hegseth is a man who fought in those wars,” he declared, ignoring the history of highly-decorated warriors in charge of the Pentagon, including Secretary Austin.

U.S. Senator Kevin Cramer (R-ND) has been all-in on Hegseth and even suggested it’s time America overlook detrimental allegations—including Hegseth’s—for Senate-confirmable nominees.

On Thursday, on Fox Business he suggested that Hegseth’s accusers might be fictional. And he described Hegseth as “a warrior’s warrior. He’s somebody that the rank and file military men and women can look to and go ‘finally there’s somebody at the helm that represents us, not just the guys with stars on their shoulders.'”

Secretary of Defense Lloyd Austin’s bio from 2017, when he was given the Distinguished Graduate Award by the West Point Association of Graduates, includes this accolade: “Called a warrior and a ‘Soldier’s Soldier’ by many.”

See the social media post and video above or at this link.

READ MORE: Trump May Balk at Hegseth Over Drinking History, Not Sexual Misconduct Allegations: Report

 

Image via Reuters

 

 

 

 

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ANALYSIS

Will McConnell and Senate Republicans Use Feinstein’s Passing to Grind Biden’s Judicial Confirmations to a Halt?

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1 year ago

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September 29, 2023

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The passing of U.S. Senator Dianne Feinstein, a Democrat who served the people of California since 1970 in numerous roles, first at the local level, then as a Senator and Chair of powerful Committees, raises many questions about the future, including: What will Republicans, and especially Senate Minority Leader Mitch McConnell, do? Will Democrats be able to replace her on the Senate’s powerful Judiciary Committee and Rules Committee?

Senator Feinstein’s role on the Judiciary Committee for much of this year has been in the news, largely due to her ill health. Some have said the narrow Democratic majority in the Senate and on the Judiciary Committee prevented her from resigning.

There are more Republicans in the Senate (49) than Democrats (48, until Feinstein’s passing), but the three independents who generally vote with Democrats gave them a 51 vote “majority,” with the Senate President, Vice President Kamala Harris, casting the tie-breaking vote 31 times, as of July. Her 31st tie-breaking vote is matched only by one other Vice President, who also cast a total of 31 tie-breaking votes.

What happens now?

READ MORE: ‘These Are Our National Secrets’: Democrat Slams GOP for Ignoring Trump Classified Documents Found ‘In the S——’

Does President Biden’s historic pace of appointing judges – more than the last three presidents at this point in their tenure, end, at least until 2025? As of July, President Biden has nominated and had confirmed more Black women judges (13) than all other U.S. President combined, and placed on the federal bench 44 Black judges in total. Does than also grind to a halt? He has placed on the federal bench at least 27 Hispanic judges.  Earlier this year President Biden nominated two more Hispanic women judges. UC Santa Barbara’s The American Presidency Project noted, “if both are confirmed, President Biden will have confirmed more Latina circuit judges than any President in history.” It also noted, Biden “has nominated 27 AA and NHPI individuals to federal judgeships and 20 have been confirmed. This includes six AA and NHPI circuit court judges.”

And what happens if a U.S. Supreme Court Justice dies or retires?

In April, PBS NewsHour reported, “Republicans blocked a Democratic request to temporarily replace California Sen. Dianne Feinstein on the Senate Judiciary Committee Tuesday, leaving Democrats with few options for moving some of President Joe Biden’s stalled judicial nominees.”

“South Carolina Sen. Lindsey Graham, the top Republican on the Senate Judiciary Committee, objected to a resolution offered by Senate Majority Leader Chuck Schumer that would have allowed another senator to take Feinstein’s place on the panel while the Democrat recuperates from a case of shingles. Republicans have argued that Democrats only want a stand-in to push through the most partisan judges, noting that many of Biden’s nominees have bipartisan support and can move to the Senate floor for a vote.”

Minority Leader McConnell also made clear his objections at the time.

READ MORE: ‘All Those Biden Towers’ Where ‘Influence Was Used’: Democrat Turns Tables and Mocks Republicans in Sarcastic Q&A

“’Let’s be clear,’ said McConnell in remarks on the Senate floor. ‘Senate Republicans will not take part in sidelining a temporarily absent colleague off a committee just so Democrats can force through their very worst nominees.'”

Given McConnell’s history, including refusing to even allow then-President Barack Obama’s nominee to the U.S. Supreme Court to get a confirmation hearing, much less an up-or-down vote, it might seem unlikely he will allow Senator Feinstein to be replaced on any Committee.

But, NewsHour’s April reporting may now give Democrats some hope.

“If Feinstein were to resign immediately, the process would be much easier for Democrats, since California Gov. Gavin Newsom would appoint a replacement. The Senate regularly approves committee assignments for new senators after their predecessors have resigned or died. But a temporary replacement due to illness is a rare, if not unprecedented, request.”

Sen. Feinstein also served on several powerful Committees, including Intelligence, Appropriations, and especially the Rules Committee.

Will Republicans allow Senator Feinstein’s replacement to serve on Judiciary, and the other Committees as well?

California’s Democratic Governor Gavin Newsom “must now appoint someone to the U.S. Senate ahead of next year’s election. He has long said he would appoint a Black woman if Feinstein did not finish her term, but he recently specified on ‘Meet the Press’ that he would do so as an ‘interim appointment,'” The San Francisco Chronicle reported Friday. “Only one of the top three candidates to replace Feinstein, Rep. Barbara Lee of Oakland, is a Black woman. Polls have shown Lee trailing two opponents, Reps. Katie Porter, D-Irvine, and Adam Schiff, D-Burbank.”

“Republicans have said they would block Democrats from replacing Feinstein on the committee, which must approve President Biden’s judicial nominees,” The Chronicle added. “Newsom has said that without her, Democrats — losing their committee majority — might not be able to get any more federal judges through Congress this term.”

“’I have to remind my friends and progressive colleagues,’ Newsom told reporters last month, ‘if she does resign and the governor, I guess me, appoints someone, we may not get another federal judge out of the Judiciary Committee.’”

READ MORE: ‘Flying Monkeys on a Mission for the Wicked Witch’: Raskin Rips Republicans Over Impeachment ‘Inquiry’

Some experts disagree with “conventional wisdom.”

“The claim that Republicans can and will block DiFi’s [Senator Feinstein’s] replacement on the Senate Judiciary Committee was pulled out of thin air by Democrats seeking a pretext to defend her refusal to retire. It is almost certainly false, and it’s irresponsible to promote this claim as a certainty,” Slate’s Mark Joseph Stern, who writes about the courts and the law, said Friday.

“Democrats confirmed nearly 100 Biden judges with an evenly divided SJC [Senate Judiciary Committee],” Stern adds. “It just takes somewhat longer.”

Politico on Friday reported, “Democrats will need 60 votes to appoint a senator to fill Feinstein’s role on the Judiciary panel, meaning at least 10 Republicans would need to vote in favor of filling Democrats’ majority on the panel, assuming they move to do so before someone is appointed to the California Senate seat.”

“Senators are typically assigned to committees by unanimous consent, but such orders are subject to debate and can be filibustered. Republican senators could slow, or stop, Democrats from filling the Judiciary roster,” Politico added. “The panel, under Democratic control, has been advancing scores of judicial nominations that Republicans object to. Leaving the panel short one Democratic vote would hamper the majority’s steady confirmation of President Joe Biden’s nominees.”

Back in June, amid clamor from some progressives for Sen. Feinstein to step down, U.S. Senator Sheldon Whitehouse (D-RI) warned, “The fact is simple: if Senator Feinstein resigns, Mitch McConnell gets to decide whether Democrats have a Senate Judiciary majority.”

 

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ANALYSIS

‘I Am Far Too Busy to Be Prosecuted’: Legal Experts Mock Trump’s Request for Indefinite Suspension of Trial

Published

1 year ago

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July 11, 2023

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Some legal and national security experts were stunned when attorneys for Donald Trump filed a near-midnight motion requesting U.S. District Judge Aileen Cannon indefinitely delay setting a date for his trial in the classified documents case.

At 11:30 PM, just 30 minutes before the deadline, Trump’s attorneys told Judge Cannon, “there is most assuredly no reason for any expedited trial, and the ends of justice are best served by a continuance.”

Technically, Trump’s legal team of four attorneys are asking Cannon to deny the U.S. Dept. of Justice’s trial schedule, and withdraw her own schedule which includes pre-trial conference dates during which attorneys and the judge discuss critical details of the case.

In their overnight filing, Trump’s attorneys suggest that the trial is political, but also, because he is running for elected office against the sitting President of the United States, he is far too busy to deal with being a defendant.

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“President Trump is running for president of the United States and is currently the likely Republican Party nominee,” the motion reads. “This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on Nov. 5, 2024.”

Pointing to Trump’s co-defendant, Walt Nauta, they add: “Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable and counseling in favor of a continuance.”

They claim it will be difficult, and time-consuming, to seat an impartial jury, especially because of the presidential election.

The attorneys write, “even Department of Justice policy cautions against taking prosecutorial action for the purpose of affecting an election or helping a candidate or party.”

Donald Trump, it has been widely reported, announced he was running for president because he thought it would prevent him from being prosecuted. And The New York Times’ Maggie Haberman, as recently as today, wrote: “Lawyers for Trump, whose advisers are blunt in private that they see winning the election is the key to making the case against him disappear, began the process of delaying the documents trial.”

READ MORE: Senate Democrats Announce Supreme Court Ethics Bill – Top Republican Immediately Declares It DOA

The New York Times, in that article co-authored by Haberman, adds that Trump’s “lawyers strongly hinted that they were going to fight the government during the pretrial litigation over classified material, a process that could take up significant amounts of time.”

“In general,” the lawyers’ motion reads, “the defendants believe there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading presidential candidate by his political opponent.”

“Our democracy demands no less than full transparency,” they claim.

Trump’s attorneys also suggest they intend “to challenge some of the charges he is facing by arguing that the Presidential Records Act permitted Mr. Trump to take documents with him from the White House,” The Times reports. They also “suggested that they might raise ‘constitutional and statutory challenges’ to Mr. Smith’s authority as special counsel.”

In response to the news Trump is trying to delay the trial, former U.S. Attorney Joyce Vance, who is generally reserved in her commentary, overnight tweeted: “Shocker. Trump doesn’t want to ever go to trial.”

READ MORE: ‘You Know, It Is What It Is’: GOP Senator Responsible for Marines Having No Leader Shrugs Off National Security Concerns

Brad Moss, a top national security attorney, was even less reserved in his response to the news. He tweeted, “Criminal defendants in court today: Apologies, Your Honor, but I am far too busy to be prosecuted right now. I’m going to have to ask you to indefinitely postpone my trial.”

But Barb McQuade, also a former U.S. Attorney, appeared to have anticipated this move.

“To no one’s surprise, Trump’s lawyers filed a brief late last night in documents case seeking delay in trial date,” she wrote Tuesday morning. “Judge Cannon has a lot of power here to keep the trial on track. What’s the over/under for a trial before the Nov 2024 election?”

“While the arguments that Trump makes are not only anathema to the Constitution,” Adam Cohen, vice chair of Lawyers for Good Government notes, “And also contrary to his ‘lock her up’ chants in 2016…Remember-he makes this motion to Judge Cannon…Who previously decided Trump should be held to a different standard than the rest of America.”

Meanwhile, Marcy Wheeler, a national security and civil liberties journalist, suggests Trump’s attorneys are attempting to pull the wool over everyone’s eyes.

“Trump literally got access to the docs he stole by stating, over and over, that there was no more important thing than protecting classified information. He promised voters he’d keep them safe. That’s how he won,” she reminds.

Pointing to the indictment, she adds:

Wheeler, in her Twitter thread, also heavily criticized The New York Times’ reporting, and issued a warning to journalists: “You don’t have to just repeat Trump’s claims about how an election prevents him from going to trial w/o noting that he GOT ELECTED in 2016 by insisting on the urgency of criminal prosecution for mishandling classified information.”

Read the tweets above or at this link.

Image: Hunter Crenian/Shutterstock

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