The Daily Parker

The US Federal District Courts have 670 Article III judges (that is, Senate-confirmed, lifetime-appointed), almost all of them competent and conscientious jurists. They make mistakes sometimes, for which we have nine Circuit Courts of Appeals, and ultimately, the Supreme Court. In the entre history of the US, the US Senate has convicted only 8 Federal judges in impeachment trials, the most recent, Thomas Porteous for perjury, in 2010

XPOTUS appointee Matthew Kacsmaryk, of the Northern District of Texas, apparently wants the 9th slot:

The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.

Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.

In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.

Before being nominated to the federal bench by President Donald Trump in 2017, Kacsmaryk served as deputy general counsel at the conservative First Liberty Institute. He argued against same-sex marriage, civil rights protections for gay and transgender individuals, the contraceptive mandate and, of course, Roe v. Wade.

A trio of law professors writing in Wired take a step back but agree that Kacsmaryk went far beyond his authority:

[W]e would like to offer some clarification here. Because despite the barrage of predictions that this case could ban mifepristone and take it off the market, there are several basic legal principles suggesting that Judge Kacsmaryk’s power is limited and that a ruling for the plaintiffs will not necessarily change much at all with medication abortion.

First, as an amicus brief from FDA law scholars (including one of the authors of this piece) makes clear, Congress crafted procedures by statute for the FDA to use to withdraw approval of a drug. Judge Kacsmaryk cannot force the FDA to adopt another process to do the same—doing so would violate federal law. At best, he should only be able to order the agency to start the congressionally mandated process, which involves public hearings and new agency deliberations. This could take months or years, with no guarantee of the result.

Second, even if Judge Kacsmaryk forgoes this process and rules that the FDA’s approval was unlawful and that mifepristone is now deemed a drug without approval, he cannot force the FDA to enforce the decision. Because the FDA does not have the capacity to enforce its statute against every nonapproved product on the market, it has long been settled law, decided in a unanimous 1985 Supreme Court decision, that the agency has broad enforcement discretion, meaning the agency, not courts, gets to decide if and when to enforce the statute.

Times columnist Kate Shaw agrees:

The Biden administration should be swift and forceful in its response to Judge Kacsmaryk’s ruling, using every tool available to highlight the lawlessness of what the judge has done and to limit any damage that may occur.

Despite the Dobbs majority’s claim that overruling Roe and Casey would merely return the issue of abortion to the people and the democratic process, these plaintiffs seem driven by a single goal, one that has nothing to do with respecting democratic choices: to render abortion as inaccessible as possible in as much of the country as possible, even in states whose voters have elected to make abortion legal and accessible.

Much of the opinion is tonally shocking and medically unsound. Rather than using the term “fetus,” it refers exclusively to “unborn children” and “unborn humans.” It describes mifepristone as used to “kill” or “starve” a fetus, rather than end a pregnancy. It accuses the Biden administration of promoting “eugenics” for identifying the harms to families and existing children that flow from women being denied access to wanted abortions.

[T]he White House must recognize that adherence to well-worn norms — for instance, an orderly appeals process — is less consistent with a principled commitment to the rule of law than more aggressive responses to lawlessness.

The Religious Right knows it doesn't have the votes to prevail on the merits--especially since the "merits" of their arguments around abortion rest on assumptions that most people do not accept. And being religious makes them inflexible, which in turn makes them put their religious goals ahead of everything else, including the law and the lives of people who disagree with them.

When people lose, they get desperate. So while Kacsmaryk's ruling won't survive on appeal, you can bet he, and his co-religionists, won't stop trying to impose "god's" will on everyone else. 

In other news:

• Greg Hinz goes over the upcoming Chicago mayoral election.
• Kansas Republicans have not given up their fight against the state constitution as they try to ban abortions there against the will of the majority of voters.
• The US Senate Judiciary Committee held a hearing today into the monopolistic behavior of organized crime syndicate concert promoter Live Nation and its accomplice, Ticketmaster.
• The Long Island Railroad begins service to Grand Central Station tomorrow, bringing commuters from Mineola and Massapequa to Madison Avenue for the first time ever.
• Eurostar says that it can't fill all the seats on its UK-bound trains because Brexit has made UK border checks too time-consuming.
• You can leave the lights on, but fix your appliances.

And finally, a glimmer of hope that the 10-year project to build one damn railroad station near my house might finally finish in the next few weeks.

Just a pre-weekend rundown of stuff you might want to read:

• The US Supreme Court's investigation into the leak of Justice Samuel Alito's (R) Dobbs opinion failed to identify Ginny Thomas as the source. Since the Marshal of the Court only investigated employees, and not the Justices themselves, one somehow does not feel that the matter is settled.
• Paul Krugman advises sane people not to give in to threats about the debt ceiling. I would like to see the President just ignore it on the grounds that Article 1, Section 8, Article VI, and the 14th Amendment make the debt ceiling unconstitutional in the first place.
• In other idiotic Republican economics (redundant, I know), Rep. Buddy Carter (R-GA) has proposed a 30% national sales tax to replace all income and capital-gains taxes that I really hope the House passes just so the Senate can laugh at it while campaigning against it.
• Amazon has decided to terminate its Smile program, the performative-charity program that (as just one example) helped the Apollo Chorus raise almost $100 of its $250,000 budget last year. Whatever will we do to make up the shortfall?
• How do you know when you're on a stroad? Hint: when you really don't want to be.
• Emma Collins does not like SSRIs.
• New York Times science writer Matt Richtel would like people to stop calling every little snowfall a "bomb cyclone." So would I.
• Slack's former Chief Purple People Eater Officer Nadia Rawlinson ponders the massive tech layoffs this week. (Fun fact: the companies with the most layoffs made hundreds of billions in profits last year even as market capitalization declined! I wonder what all these layoffs mean to the shareholders? Hmm.)
• Amtrak plans to buy a bunch of new rail cars to replace the 40-year-old rolling stock on their long-distance routes. Lots of "ifs" in there, though. I still hope that, before I die of old age, the US will have a rail travel that rivals anything Europe had in 1999.
• The guy who went to jail over his fraudulent and incompetent planning of the Fyre Festival a couple of years ago wants to try again, now that he's out.

Finally, Monica Lewinsky ruminates on the 25 years since her name popped up on a news alert outing her relationship with President Clinton. One thing she realized:

The Tonight Show With Jay Leno died in 2014. For me, not a day too soon. At the end of Leno’s run, the Center for Media and Public Affairs at George Mason University analyzed the 44,000 jokes he told over the course of his time at the helm. While President Clinton was his top target, I was the only one in the top 10 who had not specifically chosen to be a public person.

If you don't follow her on social media, you're missing out. She's smart, literate, and consistently funny.

My commute to work Friday might get a little longer, as Metra has announced that 9 out of its 11 lines (including mine) would likely not operate if railroad engineers and conductors go on strike Friday. Amtrak has already started cancelling trains so they won't get stranded mid-route should the strike happen.

In other news:

• Cook County tax bills won't come out until late autumn, according to the County President, meaning no one knows how much cash they have to escrow when they sell real estate.
• The Post has an interactive map showing everywhere in the US that hit a record high temperature this summer.
• US Rep. Marjorie Taylor "Still Smarter than Lauren Boebert" Greene (R-GA) has come up with a climate-change theory so dumb it actually seems smart.
• US Sen. Lindsay Graham (R-SC), another intellectual giant of the 117th Congress, proposed a Federal abortion ban, demonstrating a keen command of how most people in the United States view the issue.
• Robert Wright explores "why we're so clueless about Putin."
• Block Club Chicago explains why my neighborhood and a few others experienced massive geysers coming out of storm drains during Sunday's flooding rains.

Finally, right-wing lawyer Kenneth Starr died at age 76. No reaction yet from Monica Lewinsky.

When the right wing fell all to pieces because Obamacare made health care easier for poor people to obtain, they managed to pass constitutional amendments in several states to hobble implementation of the Act. Flash forward 10 years and welcome to the delicious irony of unintended consequences:

Nowhere is this phenomenon more evident than in Wyoming, one of the 13 states with a “trigger” law on the books that was designed to immediately outlaw abortions once Roe was overturned.

In late-July, a coalition of Wyoming residents, medical providers, and abortion-supporting nonprofits filed a lawsuit alleging that House Bill 92—the state law which makes performing an abortion in Wyoming a felony crime punishable by up to 14 years in prison except in rare cases of rape, incest or health risks—was unlawful and unenforceable. Among the plaintiffs’ many arguments against the legislation was that it allegedly violated Article 1, Sec. 38 of the Wyoming state constitution, which guarantees that “each competent adult shall have the right to make his or her own health care decisions.”

That the amendment was intended as a spiteful measure, kicking back against Obamacare, is not in question; indeed, during a hearing before Teton County District Judge Melissa Owens, who was presiding over the abortion-rights supporters’ suit last week, attorneys for the state of Wyoming argued as much in an effort to uphold the abortion trigger law. “That statute was supposed to push back on the Affordable Care Act,” Special Assistant Attorney General Jay Jerde told the Wyoming judge, “not to implicitly confer the right to an abortion.”

I'm interested to see where this fight winds up.

Indiana sits at the "crossroads of America," interposing itself between Chicago and points east like that old racist yutz at the end of your block that you hope isn't sitting on his porch when you walk by. Yesterday, with much fanfare, they became the first state to ban almost all abortions after Dobbs, for many of the same reasons that they once declared pi to be equal to 22/7:

Indiana became the first in the nation to sign new restrictions into law – stripping away a right afforded to Hoosier women for the last 50 years over the course of a two-week special legislative session.

Gov. Eric Holcomb signed Senate Bill 1, which prohibits abortion at any stage of gestation except in cases of rape, incest, fatal fetal anomalies or when the pregnant person’s life is at risk, within an hour of its passage late Friday night.

Late Friday, the Indiana Senate voted 28-19 to accept Senate Bill 1 as passed by the House earlier in the day.

The bill passed the House, 62-38, on Friday afternoon. The chamber’s 71 Republicans split on the issue, with nine voting against the bill. The party has been divided on the issue, with some feeling the bill goes too far in restricting abortion and others feeling it doesn’t go far enough.

Within hours, businesses started to pack their bags, with pharmaceutical mega-firm Eli Lilly the first to point out they won't get anyone talented to move to Indiana now. Doctors, too, don't want to work there.

As I said, people traveling over land from Chicago to anyplace east can't practically avoid Indiana, but that doesn't mean we have to spend money there. (Pity, because I had planned to check out two breweries in Michigan City this summer.)

Since 1816 Indiana has demonstrated what happens when too many stupid people occupy a single political unit. Now they've added religious extremism. Because when you get down to it, Indiana is pretty much the Afghanistan of the United States.

Somehow we got to the end of July, though I could swear March happened 30 seconds ago. If only I were right, these things would be four months in my future:

• We all knew Justice Samuel Alito (R) is an arrogant prick, and now the rest of the world knows as well.
• The Post sums up what the Schumer-Manchin climate bill will actually do. (Yay! A substance story from the paper that only seems to write about process!)
• The block of Lexington Avenue at 59th Street in New York looks just like it did in April 2020. *shudder*
• An Austrian company has made a business of selling zero-day exploits to bad guys. Nice.
• Finally, The Atlantic suggests ditching your apps and dating friends instead.

I will now go out into this gorgeous weather and come back to my office...in August.

It's a lovely day in Chicago, which I'm not enjoying as much as I could because I'm (a) in my Loop office and (b) busy as hell. So I'll have to read these later:

• Josh Marshall points out the obvious, that the filibuster is a direct threat to American democracy. Brynn Tannehill says, actually, that's only one part of how we become Hungary.
• Someone just paid $11.25 million for a lakefront house in Winnetka that, if the renderings are accurate, I hope they tear down. This comes with new figures showing Chicago real estate prices have jumped 25% over two years, one of the largest increases in history.
• Law professor Mary Ziegler wrestles with the question of why abortion opponents suddenly also oppose saving the lives of pregnant women.
• Bruce Schneier sketches out Apple's lockdown mode.

Finally, Mick Jagger turns 79 today, which surprised me because I thought he was closer to 130.

David Frum argues that anti-abortion organizers have a lot in common with the prohibitionists of the early 20th century—and have similar prospects for long-term success:

The culture war raged most hotly from the ’70s to the next century’s ’20s. It polarized American society, dividing men from women, rural from urban, religious from secular, Anglo-Americans from more recent immigrant groups. At length, but only after a titanic constitutional struggle, the rural and religious side of the culture imposed its will on the urban and secular side. A decisive victory had been won, or so it seemed.

The culture war I’m talking about is the culture war over alcohol prohibition. From the end of Reconstruction to the First World War, probably more state and local elections turned on that one issue than on any other. The long struggle seemingly culminated in 1919, with the ratification of the Eighteenth Amendment and enactment by Congress of the National Prohibition Act, or the Volstead Act (as it became known). The amendment and the act together outlawed the manufacture and sale of alcoholic beverages in the United States and all its subject territories. Many urban and secular Americans experienced those events with the same feeling of doom as pro-choice Americans may feel today after the Supreme Court’s overturning of Roe v. Wade.

Only, it turns out that the Volstead Act was not the end of the story. As Prohibition became a nationwide reality, Americans rapidly changed their mind about the idea. Support for Prohibition declined, then collapsed. Not only was the Volstead Act repealed, in 1933, but the Constitution was further amended so that nobody could ever try such a thing ever again.

I think his analysis is apt.

Some fun facts about the Justices of the United States:

• Five were appointed by presidents who took office despite losing the popular vote. All 5 voted to overturn Roe.
• Three of the Republicans on the Court—the Chief Justice, Kavanaugh, and Coney Barrett—worked for President George W Bush's Florida recount team.
• The 52 senators who voted in favor of Justice Kavanaugh's (R) confirmation represent 145.9 million Americans. The 48 senators who voted against him represent 180.7 million.
• The 50 senators who voted in favor of Justice Coney Barrett (R) represent 157.0 million to the 170.5 million the 48 no votes represent.
• Eight have law degrees from Harvard or Yale. (This will remain true next month when Justice Brown takes office.)

With those facts in mind, James Fallows argues that the Court burned its own legitimacy to ashes by not remembering the simple truth about judicial power:

[D]emocratic legitimacy depends in the long run on majority rule, combined with minority rights.

We’re now closer to systematic rule by a minority, rather than respect for its rights. A democracy cannot forever function this way.

The Supreme Court has a long up-and-down history of glory and of tawdriness. But I argue that the leaders and eras that stand up best in retrospect showed awareness that the Court’s power depended on legitimacy, and legitimacy depended on the Court’s care about how it fit into the longer-term life of a democracy.

[A] court concerned about legitimacy, would under- rather than over-intrude in public affairs.

Over-intrusion is what we have. In the anti-Miranda ruling. In the blocking of gun control. In the outright voiding of Roe v. Wade.

The Court can make its rulings. From behind its barricaded and no-guns-allowed building.

It cannot preserve its legitimacy this way.

Linda Greenhouse concurs:

Consider the implication of Justice Alito’s declaration that Roe v. Wade was “egregiously wrong” from the start. Five of the seven justices in the Roe majority — all except William O. Douglas and Thurgood Marshall — were appointed by Republican presidents. The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey, the Roe follow-up decision that the court also overturned on Friday, came from five Republican-appointed justices.

In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision. The arrogance and unapologetic nature of the opinion are breathtaking.

There will be turmoil now, for sure, as the country’s highways fill with women desperate to regain control over their lives and running out of time, perhaps followed by vigilantes across state lines. But the only turmoil that was caused by Roe and Casey was due to the refusal of activists, politicians and Republican-appointed judges to accept the validity of the precedents. Justice Alito’s reference to “turmoil” reminded me of nothing so much as Donald Trump’s invocation of “carnage” in his inaugural address. There was no carnage then, but there was carnage to come.

No, justices, your work isn’t done. What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.

Here's some "turmoil:" some asshole in Iowa drove his truck into a pro-choice demonstration yesterday, injuring at least one woman.

One simple solution: 18-year terms. If we adopt this reform, Thomas (R) would be the first one to go followed by the Chief Justice (I) and Alito (R), which are strong arguments in favor as far as I'm concerned.