Justice and the Rule of Law [Trump Two Remix]

[Tiassa]

Historical Footnote on Sloppiness

It's literally a footnote in Rodriguez v. Mason, a "Memorandum Opinion and Order"↱ from the Southern District of West Virginia Charleston Division; Judge Berger observes:

The Respondents did attach a document to their Response purporting to show minor convictions for marijuana possession in 2009. The Petitioner was four years old in 2009, and the Respondent indicated that the document was supplied by ICE and likely presumed to relate to the Petitioner because the individual in those records had the same name, despite the differences in birthdate, birthplace, parents' names, and immigration status. This sloppiness further validates the Court's concerns about the procedures utilized by the Respondents depriving people present in the United States of their liberty.​

Very consequential sloppiness, as it happens. To the one, sure, how convenient; to the other, sloppiness is about as kind a characterization as Her Honor might afford.

And the thing about that convenient sloppy whoopsie; the courts are increasingly weary, and some already wary, toward such sloppy intersections. The other footnotes are kind of extraordinary, in themselves: Note 1 concludes, "The Court concurs with the Petitioners that the language this Court has used in previous orders, barring detention absent a substantial change in circumstances, provides inadequate protection due to the Respondents’ lack of respect for the law." Note 2 just stacks on citations in order to make the caselaw question as clear as possible. Note 4 is an explanation why a voluntary departure form is "of little relevance to the legality of the Petitioner’s detention". Note 5 reminds, "the Court also finds that a bond hearing before an immigration judge would not comport
with due process", as well as the government's failure to even try to refute the point.

That last actually kind of stings, because it is important to remember: The reason it is not a crime to be an undocumented foreign national in the United States is that law enforcement would circumvent the stations of criminal justice; the "immigration judge" in Note 5 is not a member of the judiciary, but part of the executive branch under the Department of Justice. It takes too long to convict people of a crime in order to deport them for being undocumented foreign nationals, so the work-around was to make the whole thing an administrative procedure within the immigration system. It's one thing that the Court finds an IJ bond hearing insufficient, but consider that it even needed to. The whole point of having immigration judges is to avoid all that mess.

Once upon a time it was seen as some manner of discrediting tarnishment to even suggest such outcomes were possible, but here we are, and the conduct of the executive branch is such that the courts feel unable to afford law enforcement the sort of weak tea that would have done well enough in the past. Once again, a thing that should not be; inasmuch as the Republic depends on the good faith of its stewards, the moment we are witnessing is the sort of thing that should never happen.

Beyond the footnotes, Judge Berger concludes:

Having found that the Petitioner met his burden of establishing that his detention is unlawful, the Court has ordered his release. As in prior cases, and consistent with every other judge in this District, the Court finds that release is the appropriate remedy both because it is the traditional remedy in a successful habeas action for unlawful detention and because the evidence presented in this and other cases establishes that the Government would be unlikely to hold a timely bond hearing under procedures that comport with due process.​

____________________

Notes:

Berger, Irene C. "Memorandum Opinion and Order". Rodriguez v. Mason. United States District Court for the Southern District of West Virginia Charleston Division. 24 February 2026. storage.CourtListener.com. 25 February 2026. https://storage.courtlistener.com/recap/gov.uscourts.wvsd.243037/gov.uscourts.wvsd.243037.20.0.pdf

 

[Tiassa]

Unhappy Hour: Eagle Ed On the Rocks

The story so far, or thereabout:

Over the past year or so, far-right activist Ed Martin has served in a variety of capacities on Donald Trump's team, including a failed tenure as the director of the Justice Department's "Weaponization Working Group" and his ongoing work as the president's pardon attorney.

But to appreciate the Missouri Republican's contributions, one has to look no further than Martin's truly ridiculous work as interim U.S. attorney for Washington, D.C., which proved so controversial that GOP senators refused to confirm him to the post.

Over the course of roughly 16 weeks, Martin repeatedly proved his critics right, acting as a hyperpartisan prosecutor who appeared to abuse the powers of his office, including a weird fight exactly one year ago this week with the dean of Georgetown University's law school.

While federal prosecutors tend to focus resources on matters of law enforcement (since that is their job), Martin decided to launch a bizarre attack on academic freedom, targeting a private Catholic institution for unexplained reasons, telling the law school dean that Georgetown graduates would be locked out of potential jobs in the U.S. attorney's office if the university taught or used "diversity, equity and inclusion" — which went undefined in his letter.

One year later, MS NOW confirmed that Martin is facing an ethics investigation from the D.C. Bar over his wildly unnecessary campaign against Georgetown Law.

(Benen↱)​

Roger Parloff↱ explains that part of the charges involve Martin writing the judge ex parte¹, and "twice after being warned not to", apparently demanding the suspension of the D.C. Bar's counsel.

The complaint↱ itself is as straightforward as the story it describes is messy:

Count One asserts that, "Martin knew or should have known that, as a government official, his conduct violated the First and Fifth Amendments to the Constitution of the United States"; "His demand did not provide Georgetown Law fair notice of what is allegedly prohibited because he did not define 'DEI,' cited no authority for his demand"; "He failed to follow any procedure that would have given Georgetown Law an opportunity to defend itself before he imposed a penalty"; "Mr. Martin's conduct as set forth in Count I violated his oath of office as an attorney admitted to the Bar of the District of Columbia Court of Appeals, in which he swore to "support the Constitution of the United States of America," and therefore is grounds for discipline pursuant to Rule XI, § 2(b)".

What happened next is a little more complicated. Count 2 requires some explanation because it's a Thing That Should Not Be:

15. Instead of responding to Disciplinary Counsel's letter, on March 31, 2025, Mr. Martin sent, ex parte, a letter to the Chief Judge and the Senior Judges of the District of Columbia Court of Appeals. In that letter, he stated that he would not be responding to Disciplinary Counsel's inquiry, complained about Disciplinary Counsel's "uneven behavior," and requested a "face-to-face meeting with all of you to discuss this matter and find a way forward."

16. On April 8, 2025, the Chief Judge responded to Mr. Martin's March 31 letter. She informed him that the court could not permissively meet with him ex parte and that any concerns should be raised through the regular procedures established by the court to govern the disciplinary process.​

And it goes on: Since "Martin did not copy Disciplinary Counsel on this correspondence with the Chief Judge", the Disciplinary Counsel sent a follow-up letter: "Martin responded with an email that same day, in which he explained that he had communicated with the Chief Judge, but that he and she had not yet met". And he copied the Chief Judge, "even though she had told him in her April 8 letter that he should follow the regular procedures and that it would be inappropriate to meet with him ex parte". Meanwhile, "the Chief Judge responded to Mr. Martin's April 15 email, copying Disciplinary Counsel" and "repeated that neither she nor other members of the court could meet with him ex parte and that he should follow the written procedures, which 'do not include referral of correspondence from the Office of Disciplinary Counsel directly to a judge of the Court of Appeals.'" The Disciplinary Counsel asked Martin for a copy of the letter to the Chief Judge and Senior Judges. "Mr. Martin did not reply to the April 21 letter or to the second inquiry Disciplinary Counsel had sent him on April 15." The Bar filed a Motion to Compel before the Board on Professional Responsibility; Martin asked for time to secure counsel.

"On May 13, 2025, Mr. Martin sent another letter to the Chief Judge, copying Disciplinary Counsel, to complain about "the manner in which the April 15 follow-up inquiry had been served on him"; he asked the Court to "not only suspend Mr. Fox immediately to investigate his conduct, but also to dismiss the case against me because of his prejudicial conduct". The Chief Judge responded a day later, "reiterating her statements in her April 8 letter and April 15 email that Mr. Martin should raise any concerns by following the court's procedures". In June, Martin finally responded to the initial inquiry from the C.C. Bar Disciplinary Counsel. "Mr. Martin's conduct as set forth in Count II violated the following District of Columbia Rules of Professional Conduct: a. Rule 3.5(b), communicating ex parte with a judge during a proceeding unless authorized to do so by law or court order; and b. Rule 8.4(d), engaging in conduct that seriously interferes with the administration of justice."

As Parloff put it, "The DC Bar charges against Ed Martin are very Ed Martin-y."

†​

If this was an internet argument, perhaps it might work to send a PM to the Admin (chief judge) in hopes of getting what you want regardless of facts or rules. But the District of Columbia Court of Appeals is not an internet argument. The part where Martin "stated that he would not be responding to Disciplinary Counsel's inquiry, complained about Disciplinary Counsel's 'uneven behavior,' and requested a 'face-to-face meeting with all of you to discuss this matter and find a way forward'" really is extraordinary, and its presumptuousness exudes Martin's disdain for law and process. Consider that he wanted a face to face meeting with the judges to decide what to do about the D.C. Bar. In an internet discussion, that would be kind of like responding to questions about inconsistency by accusing mental illness and demanding censorship regardless of facts, rules, or circumstances. But compared to an internet argument, we can only wonder why Ed Martin thought he could buddy up to the Admin, as if in common cause, in order to duck the question and seek satisfaction.
____________________

Notes:

¹ Parloff's correction↱ explaining, "only the first letter to Chief Judge was 'ex parte'" also provides a handy pointer for those unfamiliar: "('Ex parte' means without notifying opposing counsel.)"​

Benen, Steve. "Justice Department's Ed Martin faces disciplinary proceedings from the D.C. Bar". MS NOW. 10 March 2026. MS.NOW. 10 March 2026. https://www.ms.now/rachel-maddow-sh...ces-disciplinary-proceedings-from-the-d-c-bar

Fox, Hamilton P. and Jerri U. Dunston. "Specification of Charges". In the Matter of Edward R. Martin, Jr.. District of Columbia Court of Appeals Board on Professional Responsibility. 6 March 2026. s3.DocumentCloud.org. 10 March 2026. https://s3.documentcloud.org/documents/27803685/martin-complaint.pdf

https://twitter.com/x/status/2031393594901180541

 

[Tiassa]

What it Takes: Dysfunction Proviso (#WhatTheyVotedFor)

Chris Geidner↱ explains:

The Justice Department is barely even a functional law firm at this point.

DOJ — which had been known as a place where some of the best lawyers would take a pay cut to work at, because the opportunities for exciting, important work were so plentiful and the colleagues were of such high quality — is not DOJ any longer.

There is no other way to say it.

And there is more proof of that depressing reality each day.

On Thursday, DOJ filed a notice nearly a week after the summary judgment hearing in a key case over the Defense Department's new, restrictive press policies, with DOJ "clarify[ing]" two pivotal statements made at the hearing about whether the policy sets objective or subjective standards for granting or denying press passes and what communications by reporters the government believes could be criminal ones.

On Friday, Judge James Boasberg quashed subpoenas issued by the U.S. Attorney's Office in D.C. against the Federal Reserve, with the judge finding the government presented "no evidence whatsoever" of a crime that could be properly investigated and that, as such, "asserted justifications for these subpoenas are mere pretexts."

These are, simply put, two paragraphs I would not have ever expected to write about the Justice Department in any of my time covering it — even during the worst moments of the John Ashcroft or Alberto Gonzales tenures during the George W. Bush administration (some very bad actors!) or even Jeff Sessions's tenure during the first Trump administration (some very bad policies!)​

To be clear, when he says those are paragraphs he never expected to write about the Justice Department, that's something of an understatement.

In the first issue, pertaining to a New York Times lawsuit against the Department of Defense in re Pentagon reporting credential standards, Judge Friedman heard arguments from both parties per their motions for summary judgment. Geidner explains

Six days later, DOJ filed a "notice of clarification" asserting, essentially, "We realized our answer won't work" ....

.... The "more subjective … than objective" standard that Bruns described on March 6 became "an objective standard … guided by enumerated, objective factors" that "may involve considerations that require expert judgment which frequently must be subjective in nature" on March 12, if you think that's different.

In a response filed on Friday, the Times's lawyers from Gibson, Dunn & Crutcher called the "clarification" out for what it was.

"Defendants attempt to walk back that case-ending concession—but, unable to deny the Policy's grant of standardless discretion, they settle on the doublespeak that it is an 'objective' standard that will be implemented 'subjective[ly],'" the Times's lawyers wrote. "Even setting aside the incoherence of that explanation, Defendants' letter does not change what the Policy says: PFACs may be suspended, revoked, and denied under the very same impermissibly vague "national security" standard the D.C. Circuit found unconstitutional in Sherrill v. Knight."

This is just on example from this hearing, and one of the two "clarification[s]" issued after the fact, but, suffice it to say, this is not what a lawyer should be doing — and it's certainly not something that would have been expected out of the Federal Programs Branch in the past.​

The day before, D.C. Chief Judge Boasberg quashed Department of Justice subpoenas to the Federal reserve, unsealing that ruling on Friday. It stands out that U.S. Attorney Pirro worked with Steven Vandervelden, the dance studio photographer who failed to indict members of Congress for reminding military personnel of the law. Geidner explains:

In his opinion rejecting DOJ's arguments and granting the Fed's motion to quash the subpoenas, Boasberg — who has spent more than his fair share of time dealing with Trump administration arguments and defenses of the past year — did not mince words.

Citing "one of at least 100 statements that the President or his deputies have made attacking the Chair of the Federal Reserve and pressuring him to lower interest rates," Boasberg explained, "the President has been unable to push rates lower through social-media posts." Noting that, as such Trump had "hinted at other options" to "get him out," Boasberg continued:

「Perhaps it comes as no surprise, then, that the D.C. U.S. Attorney's Office has recently opened a criminal investigation into Powell. It has served two subpoenas on the Federal Reserve Board of Governors, seeking records about recent renovations of the Board's buildings and testimony that Powell delivered to Congress that briefly discussed those renovations. The Board has now responded with a Motion to Quash, contending that the subpoenas are merely part of the gameplan to pressure Powell to bend to the President's wishes or to get rid of him. The case thus asks: Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoenas' dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will. On the other side of the scale, the Government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President. The Court must thus conclude that the asserted justifications for these subpoenas are mere pretexts. It will therefore grant the Board's Motion to Quash.」​

As I noted on Friday, this is an astounding statement from a federal judge about the executive branch, generally; the Justice Department, more particularly; and these subpoenas, specifically.

This is not the way the government was seen by federal judges, and it was not at all the way the Justice Department acted or the defenses it had to attempt to justify the government's actions.

(Boldface accent per Geidner)​

Compared to what they voted for, this is what it takes.
____________________

Notes:

Geidner, Chris. "DOJ is barely even a functional law firm at this point. Each day there is more proof." Law Dork. 14 March 2026. LawDork.com. 14 March 2026. https://www.lawdork.com/p/doj-is-barely-even-a-functional-law

See Also:

Boasberg, James. "Memorandum Opinion". Board of Governors of the Federal Reserve System v. United States of America. United States District COurt for the District of Columbia. 11 March 2026. storage.CourtListener.com. 14 March 2026. https://storage.courtlistener.com/recap/gov.uscourts.dcd.287334/gov.uscourts.dcd.287334.32.0.pdf

Bruns, Michael, Brett A. Shumate, and Joseph E. Borson. "Defendants' Notice of Clarification Regarding Statements made at Oral Argument". The New York Times Company v. Department of Defense. United States District Court for the District of Columbia. 12 March 2026. storage.CourtListener.com. 14 March 2026. https://storage.courtlistener.com/recap/gov.uscourts.dcd.287334/gov.uscourts.dcd.287334.32.0.pdf

Spoiler

 

[Tiassa]

The Hits Keep Coming: Good Enough for Government Work (b/w, Lowering the Bar)

Via Bloomberg↱:

The Justice Department has waived a policy requiring newly hired federal prosecutors to possess at least one year of experience practicing law, as US attorneys' offices struggle to find qualified replacements following mass departures.

Many offices have previously adopted their own rules mandating at least three years of legal practice, rather than the nationwide baseline threshold of one year. But the reduced standards this month were implemented in federal districts such as Minnesota and Southern Florida that have experienced significant attrition to put new prosecutors to work straight out of law school.

The move was confirmed by two people familiar with the matter and reflected in newly-posted online vacancy announcements in at least a handful of offices.

In a March 13 message with the subject line, "Suspension of Attorney One Year Experience Requirement," DOJ headquarters informed US attorneys' offices that the department's lawyer recruitment office now permits them to exclude the one-year minimum when advertising vacancies. The memo reviewed by Bloomberg Law goes on to state, "This suspension is in effect until February 28, 2027, and was implemented due to an exigent hiring need for attorneys across the Department."​

Lowered expectations is now a feature of governance by the party known for complaining that government doesn't work. Once upon a New American Century, George W. Bush lowered the standards for military enlistment in hopes of avoiding conscription to support his warring adventures in Afghanistan and Iraq. Now, Donald Trump would lower the standards for U.S. Attorneys because the administration cannot find enough experienced attorneys willing to gamble on the political agenda at Department of Justice.
____________________

Notes:

Penn, Ben. "DOJ to Start Hiring Prosecutors Directly Out of Law School". Bloomberg Law. 16 March 2026. News.BloombergLaw.com. 16 March 2026. https://news.bloomberglaw.com/us-la...-of-us-prosecutors-straight-out-of-law-school

 

[Tiassa]

Where It's At

Adam Klasfeld↱ explains a particular implication of AAP v. Kennedy:

In a little-noticed passage of the 45-page order, Judge Murphy quoted from a transcript from oral arguments that took the government's arguments to its most absurd and dangerous conclusion. The passage quotes Murphy's exchange with a government attorney about a series of hypotheticals.

「THE COURT: … Let's say that instead of revising the vaccine schedule, the CDC said, actually, we think measles is good for you; you should go have lunch with someone with measles, and we are sponsoring measles lunches in every city, come have some measles lunch, that would seem to -- that would seem to go right up against the goal of preventing communicable diseases. Would such a policy by the CDC be judicially reviewable?

DEFENSE COUNSEL: I think that would still be committed to agency discretion by law.

THE COURT: So even if what the agency was saying is we like communicable diseases and we think you should get more of them, that's not judicially reviewable.

DEFENSE COUNSEL: No.」​

In another passage, Judge Murphy asked whether a court could review a recommendation that "you should get a shot that gives you measles." The government answered: "No."

By inventing what he called "somewhat ridiculous" examples, Murphy illustrated and rebuked the unrestrained power the government wanted to put in RFK Jr.'s hands.

"This argument can only be countenanced if one completely abandons the idea of objective fact, a nihilist endeavor this Court does not find appropriately read into Congress's public health statutes," he wrote.

‡​

Like other Trump administration policies, RFK Jr.'s revamp of the childhood vaccine schedule was stricken under the Administrative Procedure Act, a law protecting against "arbitrary and capricious" government actions.

Judge Murphy found that Kennedy tried to end-run the Advisory Committee on Immunization Practices (ACIP), established in 1964 to provide expert guidance on vaccines.

In June, RFK Jr. purged all 17 members of ACIP and summarily replaced them.​

Here's what Judge Murphy↱ had to say:

The Court acknowledges that many of the ACIP members have extensive expertise in their chosen fields. But "advisory committees requiring technical expertise should include persons with demonstrated professional or personal qualifications and experience relevant to the functions and tasks to be performed by the committee." 41 C.F.R. § 102-3.60(b)(1) (emphasis added). And ACIP's own charter directs that the members of the committee:

shall be selected from authorities who are knowledgeable in the fields of immunization practices and public health, have expertise in the use of vaccines and other immunobiologic agents in clinical practice or preventive medicine, have expertise with clinical or laboratory vaccine research, or have expertise in assessment of vaccine efficacy and safety.

ACIP Charter at 5. On this point, there are glaring gaps.​

​

We should note, that includes footnotes 44 and 45. Of the former, His Honor explained, "The Court finds the requirements provided in the ACIP Charter instructive for assessing the relevant points of view to be balanced, especially because FACA itself mandates the submission of a charter." The latter advises, "The Court respects the technical expertise and specialized judgement of federal agencies and recognizes that agencies are thus entitled to some deference in this determination. Nevertheless, "Congress enacted FACA to constrain executive discretion, suggesting it did not intend to preclude judicial review" of the fair balance requirement"

The primary text continues:

First, of the fifteen members currently on ACIP, even under the most generous reading, only six appear to have any meaningful experience in vaccines—the very focus of ACIP. The Court does not suggest that the other members are not experts in their respective fields, only that the committee as reconstituted is not "fairly balanced in terms of . . . the functions to be performed." 5 U.S.C. § 1004(b)(2); see also ACIP Charter at 5 (directing that members "shall be" "knowledgeable in the fields of immunization practices," "have expertise in the use of vaccines and other immunobiologic agents," "have expertise with clinical or laboratory vaccine research," or "have expertise in assessment of vaccine efficacy and safety" (emphasis added)). At least six ACIP members … appear to lack any expertise or professional qualifications related to vaccines or immunization as required by ACIP's Charter … An additional three of the current ACIP members … though they have some experience arguably relevant to ACIP's function, appear to lack the qualifications and experience to constitute expertise in vaccines and immunization. Compare id., with ACIP Charter at 5. In short, ACIP is not just a committee of doctors, or even a committee of public health experts; it is a committee specifically dedicated to the "use of vaccines and related agents for effective control of vaccine-preventable diseases." ACIP Charter at 2. As to that specific function, the newly appointed members appear distinctly unqualified. A committee of non-experts cannot be said to embody "fairly balanced . . . points of view" within the relevant scientific community … It is more accurate to say that they do not represent points of view within the relevant expert community.​

The easy joke is, just don't call it "cancel culture". But this also feels like an internet argument come to life in federal court; this is what happens when we oblige certain arguments to make sense, and why conservatives worry about how considerations fact and integrity silence political views.

In a recent order, Judge Bissoon↱ of the Western District of Pennsylvania observed that "DOJ would trample states-rights … in service of its crusade to eliminate medical care that, until recently, was in its own eyes legal".

Judge Murphy, in the District of Massachusetts, is similarly skeptical of the government's sudden, seemingly arbitrary change of direction: "It is more accurate to say that they do not represent points of view within the relevant expert community"; "Defendants have provided no explanation for their disregard of the requirements laid out in ACIP's Charter, MBP, and Policies and Procedures. This failure to articulate any reason, let alone a 'satisfactory explanation for [the] action,' renders the ACIP reconstitution unlawful"; cite FCC v. Fox (2009), "An agency may not, for example, depart from a prior policy sub silentio."

One persistent mystery about conservative political argument is whether or not it is understood that no, not everything they disagree with is arbitrary. The government's turn seems arbitrary, and this is part of the reason for the Court's doubt.

And this is an important reminder against cacophony: No, all speech is not necessarily equal simply for having been uttered, and it is not any silencing of a politic to refuse what is insupportable or at least unsupported.
____________________

Notes:

Bissoon, Cathy. "Order". In re: 2025 UPMC Subpoena. United States District Court for the Western District of Pennsylvania. 2 March 2026. storage.CourtListener.com. 17 March 2026.

Klasfeld, Adam. "Tonight in Your Rights: RFK Jr. is reviewable". All Rise News. 17 March 2026. AllRiseNews.com. 17 March 2026. [url]https://www.allrisenews.com/p/rfk-jr-vaccines-murphy-tiyr

Murphy, Brian E. "Memorandum and Order on Plaintiffs' Motion for Preliminary Injunction". American Academy of Pediatrics v. Kennedy et al. United States District Court District of Massachusetts. 16 March 2026. storage.CourtListener.com. 17 March 2026 https://storage.courtlistener.com/recap/gov.uscourts.mad.286605/gov.uscourts.mad.286605.291.0_2.pdf
​

 

[Sarkus]

There are echoes here of when SCOTUS handed Trump (and future Presidents) immunity, with their counsel arguing that if Trump got Seal Team 6 to take out rivals, this would be covered under his immunity. It takes such extreme examples to highlight the weakness in the judgements that subsequently allow them. And that would seem to be what is being argued for here.

 

[Tiassa]

It takes such extreme examples to highlight the weakness in the judgements that subsequently allow them. And that would seem to be what is being argued for here.

Part of what has happened is that the rhetoric has become the reality. American conservatives have, for over thirty years, at least, pretended that anything they don't like is somehow illegitimate, arbitrary, and conspiracist.

Sudden, arbitrary-seeming turns of policy generally don't fly with courts, and this is basically what it comes to. Since everything Republicans don't like is illegitimate, in their eyes, and only exists because some evil person insists, it seems only natural to them that doing what they want should be so easy as declaring that it is so.

It's like they think they run a backwater discussion board where nobody can do anything about abusive governance. And they think they should be able to purify it by alienating and, if necessary, expelling dissent. Remember, even Congressional Republicans support deporting American citizens↱ for disagreeing with the president.

An awkward bit of trivia about how this goes is to consider that the Chief Justice, who granted Trump nearly universal immunity, once pretended to be aghast in order to wag at Solicitor General Elena Kagan about the horrors of tyrannical overreach, such as a government wanting to know who was participating in an election. And "Kavanaugh stops"↑ are an arbitrary revival of stop-and-frisk. Remember, no amount of evidence, logic, and caselaw can overcome this conservative jealousy; since everything they don't like is just liberal judicial activism, they can do the same. Therefore if the Supreme Court once said it would not attempt to resolve a question outside its expertise that nobody had figured the answer to before, the Roberts Court sees no reason why they shouldn't do just impose the answer. The question itself, after all, can only be arbitrary, because conservatives don't like it.

And, yeah, that kind of thinking can be found at pretty much any backwater discussion board with abusive governance. In fact, it's kind of consistent throughout the conservative argument. The extreme examples, as such, are what it takes to highlight the problem when reality itself is insufficient. If it came down to vacating a murder conviction for, the Roberts Court would observe that the value of law in a free society is that one can speak their dissent without fear shortly before overturning the Law of Gravity in order to accommodate the bliss of ignorance for a Republican who dropped piano on his opponent.

(Actually, Roberts would probably see how silly that is, and do one of his carveout decisions where the Court isn't making precedent or overturning the caselaw, but, gosh, it would just be unfair to call it murder if the conservative says he didn't know that would happen. And when it comes right down to it, Congress never actually passed the Law of Gravity, and the Court cannot apply a law that does not exist. Put the two together, and it just wouldn't be fair to convict a man like that.)

(Anecdote & juxtaposition: When I was five, we were going to see a movie when my father took my brother and me aside to make sure we understood the difference between fantasy and reality, that we couldn't just put on a cape and suddenly fly. Apparently, some child had just done that, jumped out of an apartment building because he wanted to fly like Superman. And even then, my brother and I knew we couldn't do that; duh, we weren't from Krypton. We also knew we weren't bipedal talking coyotes who could survive any impact, including falling pianos, so even then dropping pianos on each other was beyond the pale of sibling rivalry. He threw me down the stairs and through a wall, once, but no, we could figure out the part about dropping pianos and anvils and safes on one another without an assist from the Supreme Court.)​

 

[Sarkus]

Taking this request in good faith (and why wouldn't you), is there any whataboutism you could think of regarding the liberals? I mean, if you were a GOP member and had to say "yeah, but the Democrats also did..." then what sort of things are there? I'm asking as someone who has really only taken (even my modest) interest in the American political system since Trump began lying his way to the top, so I lack that history and perspective. Unfortunately (or perhaps fortunately) we don't really seem to have a GOP afficionado in our ranks who could offer their view of Democrats, or at least not at the same level of recall and detail.

 

[Tiassa]

Taking this request in good faith (and why wouldn't you), is there any whataboutism you could think of regarding the liberals? I mean, if you were a GOP member and had to say "yeah, but the Democrats also did..." then what sort of things are there

The first thing to mind is that Republicans might set an infamous precedent, but if voters keep rewarding it, Democrats must consider using every available tool, as such. To pass over what voters are rewarding because a politician knows better than the voters is the attitude of the pious loser.

In my lifetime, it's been steady decline: Campaign rhetoric during the Atwater and Rove periods, campaign financing throughout. A good analogy is to watch conservatives react to the Newsom social media accounts mocking Donald Trump in kind; do we really think conservatives are all so dishonest, or perhaps some of them genuinely don't recognize what the California governor is doing.

The thing is, it's been so long; most Democratic Party failures involve trying to accommodate conservative voters, or, at least, that's how it seems. What makes it harder to identify Democratic exposure in the whatabout way is that Republican whataboutism is derived almost entirely from conservative make-believe.

Can you imagine a Democrat imposing single-payer healthcare the way Trump initiated a pogrom? Can you imagine the American people going along with it? Can you imagine a Democrat trying to nationalize the housing sector in order to redevelop and reallocate excess housing toward ending homelessness?

Consider the ACA, "Obamacare". President Obama conceded single-payer in return for a Medicare cost gap closure that, when I ask around among seniors, seems to still exist. In other words, Obama surrendered single-payer early in the discussion, and got nothing in return for the concession.

Anyway, Republican voters, it turns out, hate the individual mandate that the flaming leftists over at the rightist Heritage Foundation devised. Remember, all that Republican loathing of Obamacare, in its moment, was fake; the plan came from the Heritage Foundation, and Republicans celebrated when a Republican governor oversaw its passage and implementation in a generally liberal state. Conservatives only turned against their own plan once the black Democrat agreed to compromise and adopt the Republican plan.

There is no Democratic analogy to this kind of Republican dishonesty; there is no comparative whatabout. Before it was over, the guy who actually fought against Nazis in a war was denounced as a Nazi because the individual mandate that he once shepherded in order to ward off single-payer was denounced as Nazi, among other things.

The closest I can think of in the moment has to do with discussions of free speech. Some part of the conservative complaint against liberal censorship comes from liberal demand that if this is the law then it should be applied equally. In practice, this is what usually stays certain censorship, that the standard would censor the Bible, for instance. It is possible to find a more proactive censorship among liberals, but it's so far downstream those ideas occur in a different context. Honestly, I think liberalism and leftism have to get more popular in the United States before we can experience the leftward analogy to the Christianist book banning standards in which the liberal contribution to divisiveness is to not censor for arbitrary reasons.

But given the unreliability of conservative accusation, it really is hard to visualize the liberal analogy. And if we consider basic human frailty, it's also true that, sure, Democrats screw up badly in basic, human ways. They cheat on their spouses, embezzle money, drive drunk, and even abuse their kids sometimes. But, for example, once upon a time, I had a discussion about a corrupt Democrat who cheated on his wife, among other things, and that was what it was, but only days later one of the people I had that discussion with did his whatabout and demanded to know why I wouldn't criticize Democrats for infidelity. It's unclear what his actual complaint was; infidelity is as infidelity will, but we had just discussed the Democratic Attorney General who got caught literally committing crimes to cheat on his wife, a prosecutor renting high-end prostitutes from the kinds of operations he prosecuted. Then again, it's not an uncommon complaint that I just can't complain to conservative satisfaction.

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There is also the point that I'm looking at this question according to approximate overton standards. What happens if someone hits me from outside that range? Leftists can probably pretend a lot of whataboutism toward the liberal argument, but such critiques are usually built of idyll they cannot explain. For instance, a leftist critique against identity politics can sound very much like a rightist argument; the basic difference is the rightist tells certain classes they are lesser and excluded, while the leftist argument looks at those excluded people and tells them to stop talking about all that and just trust us.

Try it, sometime. Try telling a woman to stop talking about misogyny and just trust you. I actually know a socialist who does that line: Stop talking about identity politics and start talking about classism. And it's like, yeah, yeah, yeah, white boy, go tell black people to stop talking about identity politics and just trust your class war to take care of them, because the track record on this is kind of observably terrible.

Moreover, we're Americans; John Adams¹, whining about the despotism of the petticoat, already made the point about why women shouldn't trust the class war. In our American context, women know they must achieve power, not wait for the class war to wake up tomorrow and treat them fairly.

But, sure, the short form is that rightist critique and whataboutism is nigh on delusional, and leftist critique of Democrats is abstract and anchored in idyll. It's kind of like that weird horseshoe theory; the one thing everybody on the horseshoe can agree on is that liberals are shite. For the rightists, the liberals won't buy into the con job. For the leftists, liberals aren't perfect.

The Democratic Party, meanwhile, is only nominally liberal. Furthermore, being subject to local democracy, the Democratic Party coalition is wildly variable. It's harder to criticize Democrats for a lockstep they never achieve. But think of the conservative Christian for a moment: The conservative part complains the Democratic program doesn't work, but that's a point of compromise that can be corrected; the Christian part knows the solution is to actually make the program work. Like, say, food security.

And if someone presses me on Biden and Israel, I can always point to Christian Zionism, which is a really complicated discussion with very few hopeful resolutions.

Meanwhile, if a lot of Democrats played to tech and finance sector needs, for instance, there are reasons. When the American people are faced with Congress either passing a bad bill or doing nothing, Democrats get yelled at for not compromising enough in order to pass a bill. And then they get yelled at for compromising. Eighteen years ago, for instance, Democrats tried to compromise in order to pass a terrible immigration reform bill, but Congressional Republicans abandoned a Republican president, and that's the beginning of the "Dreamer", or DACA, dispute. And for whatever reason, Democrats keep trying to compromise and pass Republican border bills. And we all saw, in '24, Congressional Republicans turning against their own bill yet again.

(I do think Democrats should put together a real border security and migration bill, but it will run into the same objections and demands to exclude that everything else does. You know, Christians hollering about who doesn't deserve to eat, or something like that.)​

To me, once we acknowledge and account for the proverbial everything else, sure, there are probably some whatabouts that sound good, but for Democrats in the historical period of my lifetime, circumstance has worked out that certain otherwise valid and even important critiques are hamstrung by observing the societal condition compared to whether Democrats can bring an idyll to bear. That is to say, approximately, "Sure, but in the moment that just doesn't sound like a practical expectation of voters."

Of course, if that's the answer, then we must find a way to change that expectation.

It's like, you can lead a horse to water but you can't make it drink; meanwhile, part of the job is to keep the horse alive until it drinks, and since we're not letting these people here kill this horse for disobedience, they're beating that dead horse over there. And if you tell a rightist they shouldn't beat the dead horse, some leftist will remind that you had a horse, once, even if you didn't.
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Notes:

¹ The revolutionary who would become the second president of the United States responded to his wife, Abigail, and her famous plea to "remember the ladies":

「 We know better than to repeal our Masculine systems. Altho they are in full Force, you know they are little more than Theory. We dare not exert our Power in its full Latitude. We are obliged to go fair, and softly, and in Practice you know We are the subjects. We have only the Name of Masters, and rather than give up this, which would compleatly subject Us to the Despotism of the Peticoat, I hope General Washington, and all our brave Heroes would fight.」​

See also: "The Trump Presidency" #173 (2017)↗.
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