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Friday, December 11, 2020

Requiem for principles

Multiple items, unconnected except by the thread of the ongoing coup attempt:

• Carter Philips, Republican former Assistant to the SG and SCOTUS advocate and leader of an early amicus opposing the Texas lawsuit, tells the National Law Journal (subscription required) that it would be "counterproductive" to seek attorney sanctions: "The problem is you just want this to end and to move on. It doesn’t help it to end if you start filing [frivolous litigation] motions and trying to sanction the other side. . . . It turns up the volume and gives more reason for rancor." Phillips is correct that sanction activity--or post-litigation efforts before state bars--keep this going. But then how do you stop this from happening again and again? The purpose of Rule 11 is to deter repetition of this conduct or comparable conduct by others similarly situated. Without the threat of sanctions, because those sanctions are counter-productive, nothing deters Wood, Powell, Paxton, et al. from doing this again. Put another way, sanctions exist because most lawyers are internally motivated to do the right thing and sanctions can deal with the outlier. What happens when those not internally motivated are not the outliers?

Jeb Bush says: "This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over." Does he really not know the answer to that question? Smart people are advancing this notion because they can get not-smart (or not-informed or not-engaged) people to believe their narrative of a stolen election. That narrative might be dead on arrival before SCOTUS. But that narrative will allow them to maintain public support when they undertake a scorched-earth campaign against voting rights (which has already begun in Georgia in advance of the Senate run-offs) and against the Biden Administration. Ted Cruz said the Senate will not confirm Biden nominees "[a]s long as there's litigation ongoing, and the election result is disputed." So unethical lawyers bring bullshit cases, without fear of sanction or consequence, and unethical legislators use those cases as pretext to prevent Biden from governing, without fear of sanction or consequence.

• Speaking of: The President's new argument is that the Biden Administration will be a "scandal-plagued mess for years to come." Short term, he uses this as a basis for SCOTUS action (Principle: If SCOTUS knows the incoming administration will be bad, it can overturn the election to "Save America"?). Long-term, this is a repeat of Trump's successful 2016 move. It was obvious four years ago that Trump was a corrupt liar, but he managed to convince the press and a sufficient number of people that Hillary was more of a corrupt liar.

Now a President who was impeached, presided over the most corrupt and unethical modern administration, surrounded himself with criminals, engaged in blatant nepotism, and profited from public office is suggesting that the new administration is scandal-plagued before it begins. Which will work to make the press report on Biden's scandals--no matter how unrelated to the President or the administration--as if it was on a similar scale and degree to what we just witnessed (and continue to witness).

• And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Posted by Howard Wasserman on December 11, 2020 at 10:25 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink


"Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop."

What consequences do you think they should suffer? Specifically: (1) what consequences should a republican voter suffer for voting for the candidate he or she believes will best protect his or her interests, and (2) what consequences should a republican elected official suffer for acting (lawfully) in what a majority of his or her constituents believe is in their best interests?

You are traveling a very dangerous path if you want to punish people for voting, or punish elected officials for exercising their power according to the will of the those they represent, or lawyers for filing papers asking for relief on behalf of their clients, while groups other groups obtain political change by looting and burning.

Posted by: Anonymous | Dec 14, 2020 9:48:17 AM

We non-Americans also witnessed four years of Russiagate, Hillary Clinton's absolution for violating 18 USC 1793(f), a vitriolic corporate press painting all Trump supporters as white supremacists, absolute hypocrisy over (amongst other things) free trade agreements, illegal immigration, and relations with China, and American states bizarrely changing their election rules weeks before a federal election (let alone loosening them in ways we in the rest of the West would could consider to be flagrant derogations of the rule of law), etc. At what point, do you reckon, we shall case to indulge you idiots when you profess to be the defenders of truth, democracy, progressive values, and the rule of law, rather than its decimators? At what point do we have to just turn our backs on you for being pathological liars, gas-lighters, and zealots lacking scholarly integrity? At what point will a critical mass of global scholars, who share sympathy with the ESPOUSED/MOUTHED policies of the American Democrat party, simply admit that their American counterparts are ultimately just fascists and a threat to our own countries and institutions?

You Yanks have absolutely lost your minds. As your country falls apart, please do NOT emigrate to ours.

Posted by: A non | Dec 13, 2020 8:32:53 AM

We can wait to see what happens after January 20 before hysterically declaring that the GOP will face no consequences for their actions over the past four years. An incumbent president has lost an election, after using every voter suppression method in the book and having the largest and most enthusiastic base of support of any Republican since Reagan. As of January 1, 2020, I thought the odds of Trump losing the election were close to zero. Yet he has lost the election, even though the stock market has gone up during his presidency. That's unprecedented in the modern era. Stop acting like Trump's decisive loss doesn't matter. It does.

Defeatism before Biden has even taken office isn't helpful at all, and it's exactly what Trumpists want to promote, with angry tears in their eyes. Don't be a tool for their agenda. They WISH their guy was the president-elect. They WISH he could win the popular vote. They're broken inside that he was rejected. We'll see the fallout when he's no longer president and all the smoke clears.

Posted by: facts not feelings | Dec 11, 2020 6:57:57 PM

Paul, I doubt it even matters if they retain power--at least, in the traditional, political sense--so long as the divisions keep the Republican base fired up and the donation taps open,

Posted by: I | Dec 11, 2020 1:10:49 PM

Carter Phillips is TOTALLY wrong. The failure to sanction to attorneys who prepared have the frivolous lawsuits reinforces the concept that there are zero consequences for aberrant behavior if you're white.
As has been observed on other blogs, the evidence indicates that for many in the GOP, elections are only legitimate if the GOP candidate wins. From the GOP perspective, elections won by a Democrat or Independent are fraudulent.
The Democrats naively talk of unifying the country. The GOP is clearly happy with a divided and fractured country if those divisions allow the GOP to retain power.

Posted by: Paul Sonnenfeld | Dec 11, 2020 12:07:17 PM

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