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The Right Wing

Utah gubernatorial hopefuls Lt. Gov and Dem opponent call for unity in joint ad: 'There's a better way'

Utah Lt. Gov. Spencer Cox (R) and his Democratic opponent Chris Peterson are offering a relatively diplomatic look at opposition as election day approaches.

With Democrats and Republicans at odds across the United States, Cox and Peterson are reminding the American public about the importance of disagreeing in a diplomatic manner. Despite their differences in political views, they are calling for unity among voters.

On Tuesday morning, Cox took to Twitter with an announcement and a quick clip that featured him and Peterson. Both candidates acknowledged the dire state of America's national political dialogue as they weighed in on the importance of mature interactions during the campaign season.

"I'm not sure this has ever been done before...but as our national political dialogue continues to decline, my opponent @PetersonUtah and I decided to try something different. We can disagree without hating each other. Let's make Utah an example to the nation. #StandUnited #utpol"

Peterson went on to urge the citizens of Utah to lead by example, re-commit to decency and continue to uphold America's democracy despite everything going on on the national stage.

"While our national political dialogue continues to decline, Chris and I agree that it's time we expect more of our leaders and more of each other," Cox said. "Utah has an opportunity to lead the charge against rank tribalism and commit to treating each other with dignity and respect."

"There are some things we can agree on. We can debate on issues without degrading each other's character. We can disagree without hating each other," they said, adding, "And win or lose, in Utah, we work together. So let's show the country that there's a better way.

Touching on the importance of a peaceful transfer of power, Peter also appealed to the American public asking for "a national commitment to decency."

"The time-honored values of a peaceful transition of power and working with those with whom we differ are an integral part of what it means to be an American," Peterson said. "It is time to reforge a national commitment to decency and our democratic republic."

Then, Peterson added, "Let's reforge our national commitment to decency and democracy."

Barr claims Trump cannot be sued for denying writer's rape accusation: Using DOJ 'to crush a victim'

In Attorney General Bill Barr's latest attempt to help President Donald Trump avoid accountability for an alleged rape he is accused of committing in the 1990s, Barr on Monday argued in court filings that when the president denied columnist E. Jean Carroll's accusation last year, he was acting not on behalf of his own interests but in his capacity as a public servant representing the people of the United States.

"Given the president's position in our constitutional structure, his role in communicating with the public is especially significant," wrote Justice Department lawyers, who last month at Barr's direction replaced Trump's personal legal team to represent the president in the case, in a highly unusual move. "The president's statements fall within the scope of his employment for multiple reasons."

The statements the government lawyers were referring to include Trump's claim that Carroll was "not [his] type," that he had never met her despite photographic evidence to the contrary, and that she was a liar who was trying to sell books by accusing him of raping her in a department store more than two decades ago, long before Trump's political career began.

"There is not a single person in the United States—not the president and not anyone else—whose job description includes slandering women they sexually assaulted," Carroll's attorneys wrote in response to the DOJ's claim on Monday.

Carroll, who sued Trump for defamation in a New York state court following his remarks, tweeted that she and her legal team are planning to argue in court that Trump's denial was "not an official act."

The DOJ lawyers' claim comes a month after Barr intervened in Carroll's case against Trump, both by replacing the president's legal representation and by attempting to transfer the lawsuit from the state court to a federal district court. Both moves suggest the DOJ aims to have the case treated as one that was filed against a government employee who is immune from defamation lawsuits, in order to have Carroll's case dismissed.

Former federal prosecutor and NBC legal analyst Glenn Kirschner tweeted that Barr's latest action goes against the department's responsibility to work "on behalf of victims."

"Bill Barr is trying to use the DOJ to crush a victim," Kirschner said.

Democratic presidential candidate Joe Biden last week criticized the president for using the DOJ as his "own law firm" to gain the upper hand in his legal troubles.

"'I'm being sued because a woman's accusing me of rape. Represent me. Represent me,'" Mr. Biden said in imitation of the president. "What's that all about?"

Ivanka Trump could be targeted for multiple corruption investigations after her dad leaves office

President Donald Trump's scurrilous attacks on Joe Biden's son could turn the spotlight onto his eldest daughter's shady dealings.

Ivanka Trump, who's a senior adviser in the White House alongside her husband Jared Kushner, has been the subject of repeated ethics complaints detailing her alleged corruption, according to The Daily Beast's Dean Obeidallah.

"If Hunter Biden had received a lucrative deal from a foreign country on the very same day his then-vice president father was meeting with the leader of that foreign country, Trump — and many in the media — would be calling that out as sleazy and possibly illegal," Obeidallah writes. "But Ivanka Trump has done that and worse and we don't hear a peep."

The non-partisan watchdog group Citizens for Responsibility and Ethics (CREW) has been tracking Ivanka Trump's unethical conduct back to early 2017, and has filed complaints covering, among other things, her dealings with China and asked for an investigation into her and Kushner's real estate holdings.

"In April 2017, on the very same day Trump dined with Chinese President Xi Jinping, the Chinese government granted preliminary approval for Ivanka's long-sought-after trademarks for her namesake fashion brand," Obeidallah writes.

"Another jaw-dropping example of possible blatant corruption, as CREW detailed, came when Ivanka received preliminary approval for additional trademarks from China's government on June 7, 2018," he adds. "What else happened on June 7, 2018? Her father agreed to lift sanctions against the massive Chinese telecommunication company ZTE, which is partly owned by the Chinese government. The Trumps aren't even trying to hide the conflicts!"

CREW has asked the Department of Justice whether Ivanka Trump and her husband personally benefited from a new tax law that she had worked on, and the watchdog is cataloguing possible violations right up through last week — when she allegedly violated the Hatch Act eight times in 48 hours.

"These allegations demand a full investigation to determine Ivanka and her father's possible role in these sweetheart deals," Obeidallah writes. "Despite what Donald and Ivanka may believe, just because your last name is Trump does not mean you are above the law."

Trump’s inner circle ‘furious’ with FBI’s Wray for undercutting Biden smear: report

According to a report from Politico, high-ranking members of Donald Trump's administration are "furious" with FBI Director Christopher Wray for siding with the intelligence community and calling recent revelations about former Vice President Joe Biden's son Hunter part of a Russian disinformation campaign.

As the New York Post story about the Democratic presidential nominee's son continues to fall apart — with even Fox News reportedly passing on it before Trump lawyer Rudy Giuliani took it to the Post — Wray, who has had a strained relationship with the president is allowing his department to investigate Russia instead of the Biden's.

That, in turn, has angered White House officials looking for a helping hand to help out the president's cratering re-election campaign.

According to Politico, "Trump's inner circle was already furious at Wray for echoing the intelligence community's finding that Russia is acting to damage Biden's candidacy, as well as his description of antifa as 'an ideology' rather than an organized entity. Now, they're ratcheting up calls for Trump to fire his handpicked director."

The report goes on to note that Republicans had been hoping that Wray would open up a full-scale investigation into the sketchy accusations based upon unverified information reportedly found on the younger Biden's laptop computer.

For his part, Wary is reportedly loath to enter the fray with an eye on the election just two weeks away, and his own future uncertain.

"Other congressional and law enforcement sources noted that Trump might lack the leverage to bend Wray — who, like past FBI directors, was appointed to serve a 10-year term, a setup designed to insulate the bureau from politics — to his will," the report states. "A public offensive against Biden by the FBI would doom Wray's chances of remaining atop the bureau in a potential Biden administration. Wray, they say, would have no incentive to burn the rulebook in order to score a point for Trump, particularly when he enjoys relatively bipartisan support in the Capitol."

According to those who know Wray, he is unlikely to take the president's side this time.

"Chris does not need my advice," explained Chuck Rosenberg, a former FBI chief of staff. "He is smart and thoughtful and principled and has the best interests of the FBI and the nation in mind."

You can read more here.

Is the Republican Party over?

The theme of the day was the palpable sense of rats leaving a sinking ship as Republicans, administration officials, and administration-adjacent people distanced themselves from the president.

There was a foreshadowing of that exodus on Wednesday, when Senator Ben Sasse (R-NE) let loose about the president in a telephone call with constituents. Sasse was an early critic of Trump but toned down his opposition significantly in the early part of the administration. On Wednesday, he reverted to his earlier position, saying he had "never been on the Trump train." He complained about the way Trump "kisses dictators' butts," and went on: "The United States now regularly sells out our allies under his leadership, the way he treats women, spends like a drunken sailor…. [He] mocks evangelicals behind closed doors…has treated the presidency like a business opportunity" and has "flirted with white supremacists." He said: "What the heck were any of us thinking, that selling a TV-obsessed, narcissistic individual to the American people was a good idea?"The theme of abandoning the administration became apparent yesterday, when officials leaked the story that intelligence officials had warned Trump against listening to his lawyer Rudy Giuliani. This was a high-level leak, and suggests that more and more staffers are starting to look for a way off the S.S. Trump.

The audience numbers for last night's town halls was also revealing, as Biden attracted 700,000 more viewers on just one ABC outlet than Trump did on the three NBC outlets that carried his event. Biden's town hall was the most watched event since the Oscars in February. It appears that people are simply tired of watching the president and are eager for calm and reason.

Today, a group called "43 Alumni for Biden" released an ad called "Team 46." It says that they are all lifelong Republicans, but because they recognize the qualities of leadership—including empathy– everyone "on this team" is voting for Biden. "Let's put Joe Biden in the White House." The ad features a number of pictures of President George W. Bush, the forty-third president, and is narrated by someone whose voice sounds like his. Former U.S. Attorney Joyce Vance notes, "This looks awfully close to an endorsement of Biden from George W. Bush."

Also today, the former chair of the New Hampshire Republican Committee, Jennifer Horn, urged "my fellow Republicans" not to vote for Trump's reelection. In a piece in USA Today, Horn reminded Republicans of "the overwhelming sorrow and grief that this president" has inflicted on the country. Citing Covid-19 deaths, "cultural divides, racial unrest, economic disparity and constitutional abuses," all of which "are just tools to be used to feed his narcissism, advance his political ambitions and line his pockets," Horn indicted both Trump and the Republican Party that enables him.

"This election poses a unique challenge," she wrote. "It will test not Republican vs. Democrat or Trump vs. Biden, but rather, "We the People." It is our role in this constitutional republic, our leadership, and our dedication to the promise of America that is being tested. Trump or America," she wrote. "We cannot have both."

Under pressure, Trump changed course today and approved the emergency declaration for California that he denied yesterday. Such a reconsideration would normally have taken until after the election, but this one happened fast. Earlier this week, Trump tweeted: "People are fleeing California. Taxes too high, Crime too high, Brownouts too many, Lockdowns too severe. VOTE FOR TRUMP, WHAT THE HELL DO YOU HAVE TO LOSE!!!"

Today CNN began teasers for a special on Sunday that will explain how former senior Trump officials believe Trump is unfit for the presidency. According to former White House Chief of Staff, retired Marine General John Kelly, "The depths of his dishonesty is just astounding to me. The dishonesty, the transactional nature of every relationship, though it's more pathetic than anything else. He is the most flawed person I have ever met in my life."

Also today, Caroline Giuliani, the daughter of Trump's lawyer Rudy Giuliani, urged people to end Trump's "reign of terror" by voting for "a compassionate and decent president," Joe Biden. "[C]orruption starts with 'yes-men' and women, the cronies who create an echo chamber of lies and subservience to maintain their proximity to power," she wrote in a piece for Vanity Fair. "We've seen this ad nauseam with Trump and his cadre of high-level sycophants (the ones who weren't convicted, anyway)." Giuliani cheered Biden's choice of Kamala Harris for his running mate, and wrote, "in Joe Biden, we'll have a leader who prioritizes common ground and civility over alienation, bullying, and scorched-earth tactics." "[T]ogether," she said, "we can vote this toxic administration out of office."

And yet another story from the day: a third career prosecutor from the Department of Justice resigned after publicly attacking Attorney General William Barr for abusing his power to get Trump reelected. "After 36 years, I'm fleeing what was the U.S. Department of Justice," Phillip Halpern wrote. "[T]he department's past leaders were dedicated to the rule of law and the guiding principle that justice is blind. That is a bygone era, but it should not be forgotten." Noting that "Barr has never actually investigated, charged or tried a case," Halpern expressed deep concern over Barr's "slavish obedience to Donald Trump's will." "This career bureaucrat seems determined to turn our democracy into an autocracy," he warned.

Georgetown Law Professor Paul Butler, who worked as a federal prosecutor under Barr when he was George H. W. Bush's Attorney General, told Katie Benner of the New York Times that such criticism is "unprecedented," and reflects Trump's pressure on the AG. "I have never seen sitting prosecutors go on the record with concerns about the attorney general," he said.

And yet, Barr's willingness to bend the Justice Department to Trump's personal will may, in the end, not be enough to keep Trump's favor. Angry that Barr did not produce a report attacking the Russia investigation before the election, Trump just yesterday said he wasn't happy with Barr's performance, and might not keep him on as AG if he wins a second term.

There are signs people in the administration are preparing for Trump to lose the election. His cabinet is rushing to change regulations to lock in Trump's goal of giving more scope to businessmen to act as they see fit. Normally, changes in regulations require setting aside time for public comment on the changes, but the administration is shortening or eliminating those periods over changes in, for example, rules allowing railroads to move highly flammable liquefied natural gas on freight trains, what constitutes "contract" work, how much pollution factories can emit, and who can immigrate to America.

Russell Vought, the director of the White House Office of Management and Budget, said in a statement: "President Trump has worked quickly from the beginning of his term to grow the economy by removing the mountain of Obama-Biden job-killing regulations," and that the current push simply continues that effort. But no one is missing the quiet distancing going on in Washington as Republican lawmakers are shifting away from public support for the president.

Meanwhile, at his rally tonight in Georgia, Trump told the crowd "You should… lock up the Bidens, lock up Hillary." The crowd then began to chant "Lock them up." But one thing about a bully: when people finally start to turn on him, there is a stampede for the exits.

Tonight, at his Georgia rally, Trump outlined all the ways in which he was being unfairly treated, then mused: "Could you imagine if I lose?… I'm not going to feel so good. Maybe I'll have to leave the country, I don't know."

We are pleased to be presenting daily posts from Heather Cox Richardson's "Letters From an American" email newsletter. You can sign up to receive it in your inbox here.

Trump and the right share a Darwinist 'herd mentality' — and preference for sacrificing the weak to capitalism

Donald Trump's promise in an ABC News town hall last month that the United States would soon achieve herd immunity for the coronavirus, and conflating that with herd mentality, may be explained because Trump is counting on the latter to rescue his second term. It's otherwise impossible to imagine a campaign whose endgame is to recover the lost loyalty of voters over 65 selecting as its closing argument, "Not enough of you have died yet."

It's a safe bet that none of his 2016 Republican primary challengers would have embraced the idea that the solution to the pandemic was more American casualties than the Civil War and World War II combined. But many of Trump's Republican comrades-in-arms have embraced, often eagerly, a default preference for herd immunity — harkening back to the harsh social Darwinism that underlies much of modern conservatism. Early on in the pandemic there were Texas Lt. Gov. Dan Patrick, Rep. Trey Hollingsworth of Indiana and radio host Glenn Beck, all of whom argued that the loss of more American lives was preferable to scaling back the economy. Then, when the issue became wearing masks, some opponents argued "if I'm going to get COVID and die from it, so be it …" Of course they really meant, "If you are going to get COVID ..." Wearing masks was a deprivation of freedom — although this argument seems never to have been extended by Republicans to the prohibition on public nudity.

As the pandemic surged again, by October Sen. Ron Johnson of Wisconsin was referring to "unjustified hysteria" about covid, and asked, after he became infected, ""Why do we think we actually can stop the progression of a contagious disease?" (The obvious answer is that we have been doing so, with increasing success, since the 1854 cholera pump moment. That is rejected by many on the right, because stopping a pandemic may require the government to prevent citizens from endangering others.)

Herd immunity can sometimes reduce mortality from a disease, but over the centuries has failed to end the curse of influenza, tuberculosis, smallpox, polio, rabies or dengue fever. It fits neatly, however, into a social Darwinist framework. Those who die are the "weak" — the poorest, the youngest and the oldest young — or can at any rate be classified as weak and deserving to die, because they died. Survival of the fittest requires discarding the weak. Remember the "let them die" hecklers who populated some of the 2011 Republican debates on health care.

This underlying value distortion — my personal freedom extends to my right to endanger you — spreads out across a range of other issues. Today's Republican reluctance to curb pollution even when it is demonstrably is killing a power plant's neighbors, to keep pesticides that kill farm workers out of the fields or to do anything at all about the climate crisis, which conservatives have privately conceded for years was real and caused by carbon pollution, are all illustrations of how the toxin of social Darwinism still contaminates much of the right's thinking about freedom.

So Trump's response to the COVID crisis — and the willingness of the Republican congressional establishment to enable it — illustrates a deep-rooted flaw in the American right. In a world in which we are, like it or not, all bound together, a tolerable conservatism is one that is willing to protect me from irresponsible neighbors, whether those are COVID-risking teenagers, irresponsible gun owners or multinational chemical companies.

Robert Reich on the public, personal and total hypocrisy of the GOP

Trump and many Republicans insist that the decisions whether to wear a mask, go to a bar or gym, or work or attend school during a pandemic should be personal. Government should play no role.

Yet they also insist that what a woman does with her own body or whether same-sex couples can marry should be decided by government.

It's a tortured, topsy-turvy view of what's public and what's private. Yet it's remarkably prevalent as the pandemic resurges and as the Senate considers Trump's pick for the Supreme Court.

By contrast, Joe Biden has wisely declared he would do "whatever it takes" to stop the pandemic, including mandating masks and locking down the entire economy if scientists recommend it. "I would shut it down; I would listen to the scientists," he said.

And Biden wants to protect both abortion and same-sex marriage from government intrusion. In 2012 he memorably declared his support of the latter before even Barack Obama did so.

Trump's opposite approaches, discouraging masks and other Covid restrictions while seeking government intrusion into the most intimate decisions anyone makes, have become the de facto centerpieces of his campaign.

At his "town hall" on Thursday night, Trump falsely claimed that most people who wear masks contract the virus.

He also criticized governors for ordering lockdowns, adding that Michigan Governor Gretchen Whitmer "wants to be a dictator." (He was speaking just one week after state and federal authorities announced they had thwarted an alleged plot to kidnap and possibly kill Whitmer.)

Attorney General William Barr – once again contesting Trump for the most wacky analogy – has called state lockdown orders the "greatest intrusion on civil liberties in American history" since slavery.

Yet at the very same time Trump and his fellow-travelers defend peoples' freedom to infect others or become infected with Covid-19, they're inviting government to intrude into the most intimate aspects of personal life.

Trump has promised that the Supreme Court's 1973 Roe v. Wade decision, establishing a federal right to abortion, will be reversed "because I am putting pro-life justices on the court."

Much of controversy over Trump's nomination of Amy Coney Barrett to the Supreme Court hinges on her putative willingness to repeal Roe.

While an appeals court judge, Barrett ruled in favor of a law requiring doctors to inform the parents of any minor seeking an abortion, without exceptions, and also joined a dissenting opinion suggesting that an Indiana state law requiring burial or cremation of fetal remains was constitutional.

A Justice Barrett might also provide the deciding vote for reversing Obergefell v. Hodges, the 2015 Supreme Court decision protecting same-sex marriage. Only three members of the majority in that case remain on the Court.

Barrett says her views are rooted in the "text" of the Constitution. That's a worrisome omen given that earlier this month Justices Clarence Thomas and Samuel Alito opined that the right to same-sex marriage "is found nowhere in the text" of the Constitution.

What's public, what's private, and where should government intervene? The question suffuses the impending election and much else in modern American life.

It is nonsensical to argue, as do Trump and his allies, that government cannot mandate masks or close businesses during a pandemic but can prevent women from having abortions and same-sex couples from marrying.

The underlying issue is the common good, what we owe each other as members of the same society. During wartime, we expect government to intrude on our daily lives for the common good: drafting us into armies, converting our workplaces and businesses, demanding we sacrifice normal pleasures and conveniences. During a pandemic as grave as this one we should expect no less intrusion, in order that we not expose each other to the risk of contracting the virus.

But we have no right to impose on each other our moral or religious views about when life begins or the nature and meaning of marriage. The common good requires instead that we honor such profoundly personal decisions.

Public or private? We owe it to each other to understand the distinction.

A Supreme Court case decided over a decade ago may come back to haunt Judge Amy Coney Barrett

A Supreme Court case that was decided over a decade ago may come back to haunt Judge Amy Coney Barrett as America enters an impending post-election 2020 judicial nightmare; one in which the sitting president may deny a peaceful transfer of power.

Caperton v. A.T. Massey Coal Co. was argued in 2009 with the primary holding that a judge cannot hear a case that centers on the financial interests of someone who supported him substantially in his campaign for election. Justice Anthony M. Kennedy wrote for the majority that "recusal may be constitutionally required even where a judge is not actually biased, if there is a 'serious risk' of actual bias."

Justice Antonin Scalia criticized the majority for constitutionalizing the judge's recusal decision "in a manner ungoverned by any discernable rule," but wrote that "in the best of all possible worlds, [judges should] sometimes recuse [themselves] even where the clear commands" of the Constitution don't require it.

"The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her," wrote former U.S. Court of Appeals Judge J. Michael Luttig in a column for the Washington Post.

seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale."

Watch the video below.

Barrett faces questions on health care and voting rights on third day of hearings

Barrett faces questions on health care and voting rights on third day of hearings

The Senate Judiciary Committee on Oct. 14 questioned Supreme Court nominee Amy Coney Barrett after a nearly 12-hour session where she avoided saying how she'd rule on key issues the previous day.

Here's why Amy Coney Barrett's 'originalist' doctrine is completely incoherent: legal expert

Many fear that Amy Coney Barrett's Supreme Court confirmation will erode the established rights of women and LGBTQ+ persons, given Barrett's private convictions. At last week's hearings before the Senate Judiciary Committee, Barrett responded clearly: "A judge must apply the law as written, not as the judge wishes it were." Barrett is an originalist and textualist, who prioritizes "what people understood words to mean at the time that the law was enacted." In pointing outward to the people, originalism conveys an alluring humility. Originalism is not personal; its conclusions reflect the objective fact of "public meaning."

But are originalists right about the facts? I ran experiments to test whether originalism's tools actually reflect public meaning. The results are surprising and troubling. In a forthcoming article in the Harvard Law Review, I found that the tools originalists rely upon support false conclusions about public meaning — and often conflict with each other. Until originalists like Barrett articulate better methods, Americans have no good reason to believe the theory is succeeding, even on its own terms.

In historical interpretation, originalists rely on tools like dictionary definitions: How was the contested term defined? They also rely on patterns of language usage: What was the most common way to use the term? A "big data" version of this approach called legal corpus linguistics has gained popularity.

I tested whether these tools actually reflect public meaning today, with a simple experiment. Consider a well-known example from legal philosophy: What is the meaning of the term "vehicle"? Three different groups participated in an experiment. The first made judgments about vehicles (e.g., "Is an airplane a vehicle: Yes or no?"). The second made judgments equipped with a dictionary definition of "vehicle" and the third with data from legal corpus linguistics (e.g., data about how the word "vehicle" is most commonly used).

Those groups reached radically different conclusions. For example, about 50% of people today say that a canoe can be defined as a vehicle. Yet nearly all participants using a dictionary definition reached that judgment (95%), while nearly all the participants using the corpus linguistics data reached the opposite judgment (only 10% agreed). Similar divergences arose across many different examples, and across groups of ordinary Americans, law school students and United States judges.

This exemplifies how different originalist tools can easily support different answers. None of the Supreme Court's originalists has a methods manifesto: Is there one dictionary upon which they will unwaveringly rely; should examples of common usage be always considered or never considered? Originalists who do not commit to precise methods or who strategically evade precision ("all historical materials are relevant") choose liberally among those tools — citing a dictionary in one case, examples of common usage in another.

A broader problem for originalism concerns the concept of "public meaning" itself. If originalists can identify how the public understood our Constitution in 1787, surely they can identify the "public meaning" of very simple terms today. Justice Brett Kavanaugh, also an originalist, invites us in a recent opinion to consider again the meaning of "vehicle." Clearly a car is a vehicle, but what about a canoe, an airplane or a baby stroller? Kavanaugh provides straightforward answers: "the word 'vehicle,' in its ordinary meaning does not encompass baby strollers."

Does the American public agree? About 75% of Americans agree that baby strollers are not "vehicles." But 25% disagree. Other cases are even more difficult. People are divided 70-30 concerning whether airplanes are vehicles, divided 60-40 on bicycles and divided 50-50 on canoes. It's not obvious what originalists should make of these facts. Is "public meaning" the same as "75% meaning" or "50% meaning"?

This is a simple example. But its simplicity is the point. For even very familiar terms there is no univocal public meaning to find. Where there is no such fact, what remains is an imposed fiction. Americans should wonder about originalist fiction: Who is its author, who receives its royalties and is there judicial humility in forcing it upon us?

Originalism's flexibility and fictionalism are especially troubling in its relationship to settled law. Barrett has written cautiously about the "tension" between originalism and precedent. She is certainly a committed originalist, approvingly citing G.K. Chesterton: "a thing worth doing is worth doing badly." Originalism is worth doing, even if it is originalism done badly.

What is originalism done well? One answer is to do it "fearlessly," overturning precedents and striking down democratically enacted laws inconsistent with the judge's personal conclusion about public meaning. Barrett writes that a judge should "enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it." Her writing also suggests that the Affordable Care Act is unconstitutional. Other originalist scholars are very confident in the opposite conclusion. Yet "being a judge takes courage," said Barrett. You are there to "follow the law wherever it may take you."

Courage is a virtue when founded upon humility, but a vice when founded upon pride. As Sen. Ben Sasse of Nebraska put it during Barrett's confirmation hearing: "An originalist comes to the court with a fundamental humility and modesty." Yet true humility requires sharing with Americans a precise method, demonstrating that the method reflects the truth, and having the wisdom to know when no certain answer is found.

At the very least, originalists owe an explanation to today's American people. With no public method and an error-prone and flexible toolbox, why should we take a judge's personal "best understanding" of public meaning to be good enough? Where originalist judges proceed proudly with no answers, that is originalism done badly. And that, even originalists should agree, is not worth doing.

Historian warns America is already in its own 'slow-motion Reichstag Fire'

Donald Trump continues to make it clear that he does not intend to leave office peacefully if he is defeated by Joe Biden and the Democrats on Election Day. Moreover, Donald Trump considers any election in which he is not the "winner" to be null and void. Trump's appointment of Amy Coney Barrett to the United States Supreme Court is an obvious quid pro quo to secure his "reelection" if his attorneys and other agents can sufficiently sabotage the vote on Election Day and beyond.

On Thursday, Trump again followed the authoritarian's playbook when he bragged to his supporters at a rally in North Carolina that U.S. Marshalls essentially executed Michael Reinoehl, an anti-fascist activist accused of killing a right wing paramilitary member during protests in Oregon last August.

Celebrating the extra-judicial killings of one's political "enemies" is a common feature of fascist authoritarian regimes and the types of leaders admired and imitated by Donald Trump.

Donald Trump's commitment to and use of political violence is a matter of public record. Two of the most recent examples include how Trump's followers in Michigan allegedly planned to kidnap and possibly murder Michigan Democratic Governor Gretchen Whitmer. During his debate with Joe Biden, Trump also commanded white supremacist paramilitaries to be prepared to attack his and their "enemies" if he loses on Election Day or is otherwise removed from office.

Trump also wants Joe Biden and other leading Democrats imprisoned and perhaps even executed because he deems them to be "guilty" of "treason" and a "coup" attempt against him. Donald Trump and his Attorney General William Barr have also threatened to use the United States military against the American people if they dare to protest the outcome of the 2020 Election if Trump somehow finds some extra-legal (if not outright illegal) way to stay in office.

Because he is a political sadist and master of misery and pain, Donald Trump is using the coronavirus pandemic as a weapon to physically and emotionally abuse the American people in order to make them more compliant and subservient to his regime. Like other autocrats and authoritarians, he is also using the economic and human devastation caused by the coronavirus pandemic to personally enrich himself, his family, and allies as a way of guaranteeing the latter's loyalty.

In all, as with his obsessive rhetoric about "law and order," like other fascist authoritarians Donald Trump and his regime define the "law" in ways that benefit themselves and disregard the law when it does not serve their interests. Through that logic democracy is a tool for the Trump regime to stay in power indefinitely if they "win" and to disregard the outcome on Election Day and beyond if they are voted out of office by the American people.

Trump's strategy of attacking America's democratic norms, institutions, and culture is a constant torrent where the targets are corrupted, weakened, and then finally routed through sheer exhaustion.

In a new essay at The Bulwark, senior Democratic Party strategist James Carville summarizes this existential moment of crisis for the United States as:

Very seldom in American history have there been periods when people can nobly wage a crusade to create real and lasting change. But when these crusades do occur, when those moments arrive, what we do to vanquish the threat to freedom builds something everlasting into the framework of our society.

The American Revolution, the Civil War, World War II, Seneca Falls, Stonewall, and Selma, were all historical flashpoints where Americans displayed their patriotism against oppressive forces in a resounding way. These movements overthrew an empire, ended slavery, staved off totalitarianism, and paved the way for the establishment of fundamental civil rights and liberties for women, LGBTQ+ and black Americans.

We find ourselves again at such a turning point. Donald Trump's authoritarian presence behind the Resolute Desk is amongst the gravest threats America has ever faced from within. And Americans have risen to meet this threat.

The Trump regime has created a defense in depth against the American people. A key part of Trump's defensive strategy consists of how those Americans and others who are expecting one dramatic and climactic assault on the country's democracy have been lulled into a type of complacency and surrender.

As wielded by Donald Trump and other fascist authoritarians, the poison they have injected into the country's body politic and democracy is actually quite slow acting, where the victim becomes used to chronic pain before finally succumbing.

Why does America's mainstream news media continue to avoid describing Donald Trump and his regime as fascist authoritarians? What are they afraid of? How has that evasion helped to empower and normalize Trumpism?

In what ways have Donald Trump and his regime used the coronavirus — and the pain and social injustice it has revealed and made worse — as a weapon against democracy and the American people?

In an effort to answer these questions, I recently spoke with Timothy Snyder. He is a Professor of History at Yale University and the author of the bestselling books "On Tyranny: Twenty Lessons from the Twentieth Century" and "The Road to Unfreedom: Russia, Europe, America." His new book is "Our Malady: Lessons in Liberty from a Hospital Diary."

At the end of this conversation, Timothy Snyder warns that the United States is in the midst of a years-long slow-motion Reichstag Fire emergency that Election Day 2020 may not resolve.

You can also listen to my conversation with Timothy Snyder on my podcast "The Truth Report" or through the player embedded below.

Donald Trump's attacks on democracy are escalating. He continues to say that he will not respect the outcome of the election if he loses to Joe Biden and the Democrats. There are some public voices who have been warning about Trump and authoritarianism and fascism for several years. You are foremost among them. Why did more people not listen to the warnings?

It is structural. At present it is harder to reach people who do not already agree with you. This is true even for those of us with a public platform and big audience. More contact is virtual and less in person. It is also harder to surprise people. Ultimately, it is very hard to reach people before an algorithm does. By then a person's mind is already made up one way or another.

The second answer is that many Americans really like authoritarianism. Sure, the conventional wisdom says that Americans like freedom. Some of them do. Some of them do not. The Americans who do not like freedom are not going to be reached or otherwise have their minds changed. It is as simple as that.

In my view, it is less about reaching people and more about getting them to take action. People sometimes ask me, "Why do you preach to the choir?" To get people to do things. It is not enough to have the correct idea. If people act, even if it is a small thing, that makes a difference.

And of course, there is the challenge of the American exceptionalism consensus. The belief that America is insulated from authoritarianism because of our institutions took a long time to fight through. That myth was the direct target of my book "On Tyranny."

Why are so many journalists and other members of the political class continually surprised by Donald Trump's cruelty and assaults on democracy and norms? Trump is not changing. He is only getting worse. Why be surprised? Such a reaction is very crippling and ultimately counterproductive. It helps Trump to win.

That denial is a function of what I describe as "the politics of eternity." There is an ongoing stream of small to medium-level provocations from authoritarian movements and leaders. Those actions give a positive hit to their supporters and a negative hit to their opponents.

Everyone becomes addicted to the experience, be it pleasant or unpleasant. What you are describing is how many in the news media and elsewhere wait for Donald Trump to do the latest most outrageous thing — and then it is reported as being outrageous. That gives them a hit of sorts, a jolt to the system. Then they wait for the next outrageous thing, and so on. But the problem is that there is no thinking or theory to offer context for what is happening.

Too many people are still defaulting to these ideas that America's "institutions" are going to solve the problems of authoritarianism and Trumpism. Or history is somehow on America's side. If a person does not have some way of theorizing what Donald Trump is, then everything he does is a surprise to them. If you lack the theoretical framework to understand Trump and what is happening, then you will also lack an understanding of how to push back against it. You are helpless.

So many of the discussions are still focused on Donald Trump and what he is not. What we need to be able to do is to say what Trump is. Once you say what Trumpism really is, then you can start to fight it.

We talk about the pandemic as though it is a series of failures. No, the pandemic is not a series of failures. It is the "achievement" that Donald Trump is going to be most remembered for.

More than 200,000 people dead from the pandemic is a type of "achievement" for Trump. It took real effort to make that happen.

I'm not saying that he intended it from beginning to end. I'm not saying that there was a plot in January that 300,000 will be dead in December. What I am saying is that outcome is a result of the decisions made by Donald Trump. If the American people and most of the mainstream news media and other observers keep seeing Donald Trump in terms of omissions such as "he is not a normal politician" then we do not see and understand him for what he really is, whatever that may be.

Donald Trump is a white man. He is old. He wears a tie. What could he possibly be except somewhere in the zone of normal? That erroneous assumption contributes to why so many people are still surprised by his behavior.

Donald Trump is evil. His movement is evil. They meet all the criteria for evil. Yet, there is a willful avoidance of using that language to describe him by the mainstream news media, political elites, and other opinion leaders and public voices. If they admit that Donald Trump and his movement are evil, then there is an obligation to do something about it. To my eyes, that avoidance is a defense mechanism that will not save them or anyone else from Trump and his movement.

Evil is a helpful word to use here. I have been using that language in my new book "Our Malady." There is an almost taboo-like hesitation to move into truly ethical judgments in our discussions of Trump and his movement. As long as we are avoiding discussions of good and evil then his behavior is normalized. Avoiding that language of good and evil also leaves the public with a hope that this crisis will somehow turn back to normal.

There is a psychological dynamic at work here too. If a person did not name Trumpism as evil before, then it is hard to name it as such later on. If a political commentator or other observer did not see the danger of Trump and his movement back in 2016 then they are probably not getting it correct now even at this late point.

I think your word "fear," though, is very well taken. But I'd push that out in a different direction.

Fear is also an important concept here. Trump is running for reelection based on fear – much more so than in 2016. In 2016, it was a mix. Trump and his campaign were talking about infrastructure. They were trying to go to the left of the Democrats on some issues. Whereas in 2020, it's now just pure fear. A fear that Black people are going to rape white women in the suburbs, and they are going to burn down the cities. The pandemic is either Black people's fault or it is a conspiracy, or it is not really happening. Fear is being consciously created and then manipulated. The Democrats are really running against a Reichstag Fire. The Democrats are not really running against a political party and Donald Trump's campaign.

How can we better explain to the Democrats that Trumpism is a type of political and social movement, and normal politics, those old rules, no longer apply here in America?

History shows that people can learn to like pain. They can also learn to like inflicting pain on others. That is what the Democrats are up against. They are not competing against some theory of politics where voters and the public are purely rational and motivated by "the issues."

Donald Trump is a president who happily circulates as much pain as he can on the rationale that his people are going to suffer for him — and they're going to enjoy suffering because of their idea that other people are suffering more. Trump's supporters are suffering for a cause which is other people, Black people, immigrants, some Other, suffering more than they are.

Should the Democrats therefore imitate Donald Trump and the Republicans? The fact that there is now a Trump death cult does not mean that there should then be a Biden death cult. That would be absurd on any number of levels.

The coronavirus intersects with American fascism, Donald Trump, and his movement – including the Republican Party as a whole. How are you making sense of that relationship?

Because I was so close to death, the significance of those observations and experiences was brought home to me more than it would have been otherwise. America's racial and economic inequality is all the more obvious in life or death situations. The coronavirus of course reveals those disparities in an even more stark light.

Even before 2020 begins we are in a system where America does not have universal health care. Why? Because there is some type of practical everyday consensus that it is OK to have bad health care in this country. Such disparities in treatment are racial: In America we do not have a right to health care because then that would mean that Black people and Brown people and immigrants and so on would also have access to health care and then somehow abuse it — so goes the racist logic and history in this country.

Health care in the United States overlaps with race for white people in another way as well. The argument that is made to white people is "you are the frontiersmen, you're the rugged individualists." In that imaginary, white people know not to talk about pain or disease. There is the sadism then of some white people being pleased because they suffer less than other people. And you have the masochism of those same white people being willing to suffer, basically for nothing.

When the first reports of the coronavirus begin in March and April it was clear that it is taking the life of Blacks and Hispanics and Native Americans at a much higher rate than whites. Now that we have more numbers, it is much more fatal. In America white people live longer than Black people.

Once that fact is widely known it becomes normalized. For many white people, it is normal for Black people and Brown people to suffer more than them.

What do we know about the connections between a humane society and authoritarianism?

There is a strong connection. In my new book "Our Malady" I explore this.

For example, on an individual level, when you can't talk, you do not have freedom of speech. When you can't move, you do not have freedom of assembly. When you do not think that you are going to have a future, then freedom is no longer a meaningful concept.

If you cannot afford health care, you're afraid. If you're ashamed to talk about health care, you're less free. If you're aware of that the access to health care is going to be competitive and somebody who's less sick than you might come ahead of you because they have better insurance and better connections or whatever it might be, then you are less free. Pandemic or not, it all creates a situation where there is not an unnecessary reservoir of anxiety and fear. And that totally unnecessary reservoir of anxiety and fear can be directed to other places.

The talent that Donald Trump has is to either generate that anxiety or to take the anxiety and fear that already exists in America and to direct it in the ways that he wants to. Authoritarianism works through taking abuse and trauma and pushing it in other directions.

Donald Trump understands that he cannot win a free and fair election. Trump knows that the pandemic and the economic downturn can give him the sources of energy that he just might be able to use to stay in power some other way than an election. Donald Trump is in "the worse, the better" territory now, because he understands abuse, pain, trauma, fear and related things. Evil understands evil. Trump understands that the more anxiety and fear is out there, the larger the chances he must somehow turn the election in his direction and then pick up the pieces.

Election Day is imminent. How do you respond to those critics who would say that, "You were talking about a Reichstag Fire! It didn't happen! You are an alarmist. Hysterical! None of that happened!" What would you tell such people?

Obviously, we are in a slow-motion Reichstag Fire right now. That is what is happening. Donald Trump is not as skilled as Hitler. He doesn't work as hard as Hitler. He doesn't have the same level of confidence as Hitler, but he's clearly looking for that Reichstag Fire emergency. Trump tried to make Black Lives Matter into that emergency. "Antifascists" and "thugs" and "law and order" and so on is part of that effort. Donald Trump keeps trying to make the Reichstag Fire work.

If Trump is not successful, then that is a credit to the people who are resisting. Donald Trump is not involved in a political campaign; it is emergency politics in the constant search of an emergency. Whether Trump and his allies can line up the emergency politics with the emergency, I do not know. But that is all that Trump and his allies have got on their side — and it all they are going to have through to Election Day.

Serving oligarchs: Republicans have installed judges to cement minority rules

The analogy of judges being like umpires calling balls and strikes has been used to argue that judges merely apply the law according to the rules, leaving no room for bias. The misleading nature of this claim has never been more apparent.

Objectivity in judging is a myth. As Justice Cardozo noted, "We (judges) may try to see things as objectively as we please, nonetheless we can never see them with any eyes except our own." A test of principled judging is doctrinal consistency. As Ryan Grim and others argue, Judge Barrett fails that test, notably regarding the Voting Rights Act of 1965.

When Sonia Sotomayor said at her Supreme Court confirmation hearings that her experience as a Latina woman informs her judging, she broke the rules of the game and had to recant in support of the guise of neutrality. The charade continues.

Serving oligarchs, the Republicans have installed judges to cement minority rule.Dahlia Lithwick notes that Barrett "has clothed herself in a cloak of neutrality" contending that this posture will free her to do "pernicious work that will undercut the very ideals she is sworn to uphold."

Barrett proudly claims to be a constitutional originalist, as if this is beyond reproach, which it most certainly is not. Originalism is both historically and logically problematic. Purportedly constraining judges, it may actually serve to unleash them.

Ronald Dworkin's responsibility theory posits that judging with integrity demands honest and transparent inquiry, analysis and reasoning. Dworkin asserts that any honest consideration of judging must recognize the centrality of interpretation. Under the common law judges do make law, unlike the civil law tradition where law is "found". The making of judicial law can be as corrupted as the making of legislation, and as unappetizing as seeing sausage made.

Rhode Island Senator Sheldon Whitehouse's presentation on Dark Money shed light on the anti-democratic influences distorting the law. The Court lacks basic disclosure requirements fundamental to judicial integrity. Litigants appearing before the Court should wear badges demanding an end to the flow of dark money. As this would be disallowed, the public must fight secret plutocratic law.

The unprecedented rush to confirm Barrett denied an opportunity to fully investigate Barrett's record and conflicts. It was pathetic that Senator Whitehouse could only conclude his remarks with a plea to Barrett to "please think about these things" when she is on the Court. With hypocrite in chief Lindsay Graham presiding over Barrett's confirmation hearing precedent and principle were, unsurprisingly, conveniently discarded.

Sandra O'Connor decried unseemly law, by which she meant that which went against public opinion. Today's Court cares little about public sentiment as it routinely rules against it. When McConnell stole the seat from Merrick Garland in 2016 to install Neil Gorsuch in 2017 a nail was put in the coffin of the venerable Court. Brett Kavanaugh and Amy Barrett's confirmation process further stained the Court. The disrespect shown to RBG following her death is abhorrent, and with Trump's overt politicization of Barrett's seat marks a new low point for the Court.

Right wing court-packing has been going on for decades, as has judicial activism by Republican appointed judges. Barrett is a prime example.

Serving oligarchs, the Republicans have installed judges to cement minority rule.

Welcome to the new judicial order where stare decisis and neutrality are (ab)used as swords for the rich. Know the rules and play by them. Stop going to a knife fight with an olive branch. Pack the court if you can democrats. If you fail to do so you will be rendered impotent by the right wing activist federal courts. //

Team Trump's plan to steal the election using the Court to seal the deal is in plain sight.

In 2000, John Roberts, Brett Kavanaugh and Amy Barrett all worked for George W Bush to stop the recount. They may soon vote together to stop the actual counting. Senator Feinstein will surely thank them for their excellent leadership if they do.

Barrett's cagey responses to the senate judiciary committee further expose the discrepancy between judicial theory vs practice. Her refusal to abstain from potential upcoming election challenges before the Court evince a false understanding of the recusal standard. Like her mentor Scalia in Bush v. Gore, she speaks only to actual bias, wearing her robe as a shield, ignoring that the standard for recusal is the appearance of bias. The purpose is to uphold public confidence in the independence and integrity of judicial decision making. There is now little reason for the people to have such confidence.

As the judiciary heads further to the right it is evident it no longer serves the values of the majority of the people. Equal justice under the law is now just a reminder of how wildly the federal judiciary misses the strike zone.