"If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court."

Just a line from Tom Cotton I wanted to memorialize, quoted at Fox News.

It's of a piece with the sort of rhetoric about judges I've been reading for the last 50 years and more. I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics. And I saw "Impeach Earl Warren" billboards when I was first learning to read — back when I had no idea what "impeach" meant (something about a peach?) or who Earl Warren was.

So it's an old, old theme. But it plays well, and I think Tom Cotton found a spiffy way to do the phrasing. Instead of calling Roberts unprincipled, he points to the other justices — "the principled justices" — and imagines them finding the Chief's "views" "strange" and uncompelling. That's a nice variation on the theme.

And you've got to give Cotton credit for complexity. He addresses the Chief Justice and invites him to do something he's obviously not going to do, though it's more realistic and respectful than the common insults that tell people to do things — like go to hell or kiss my ass — that they're not going to do. "Invite" is polite, and running for President is very grand. But the idea is that if you ran for President with your agenda, you would lose. Cotton predicts the loss in an elegant comparison of voters to "principled justices," who, he suspects, would have the same low opinion of the Chief's ideas.

Now, the so-called "principled justices" oppose the Chief because he's finding something in the law that actually belongs in the political decisionmaking process, and if the Chief were to run for President, he would be taking these ideas to the place where the "principled justices" say they belong. So if the voters rejected these ideas, it would not be for the same reason the "principled justices" rejected them.

Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they would be no more principled than the Chief Justice.

But if Tom Cotton is reading this — hi, Tom! — I know you already know how to get off that hook. You only said the voters and the "principled justices" would find the Chief's views to be equivalently compelling. It can still be the case that these views are not compelling in court, because they are not law but merely political, and that they are not compelling in the political arena, because people just don't like them.

Should have?

I'm giving this my "Althouse the pedant" tag, so stop now if you don't like where this is going. I'm reading the headline at The Washington Post, "Why Scalia should have loved the Supreme Court’s Title VII decision."

The man is dead. There's NOTHING he should have done.

Why not say "Why Scalia would have loved the Supreme Court’s Title VII decision"? I think I know why. The article is by George Conway. It's in WaPo. I'm going to say: They don't want to concede that Scalia would have joined the majority in this case, that he would have stuck to his principles (and that this case was truly an instance where these principles dictated the outcome the majority reached).

"The administration has been working to pursue a narrow definition of sex as biologically determined at birth, and to tailor its civil rights laws to meet it."

"Access to school bathrooms would be determined by biology, not gender identity. The military would no longer be open to transgender service members. Civil rights protections would not extend to transgender people in hospitals and ambulances. But the administration’s definition is now firmly at odds with how the court views 'sex' discrimination."

From "Supreme Court Expansion of Transgender Rights Undercuts Trump Restrictions/The ruling focused on employment discrimination, but legal scholars say its language could force expanded civil rights protections in education, health care, housing and other areas of daily life" (NYT).

Why is "sex" in quotes? I'd say the Court's case is also at odds with the effort to banish talk of sex and replace it with the concept of gender. I wonder, now will there be a new focus on sex?

Monday’s case was focused on employment law, a provision of the Civil Rights Act of 1964 known as Title VII. But Justice Neil M. Gorsuch’s opinion used language that is likely to apply to numerous areas of law where there is language preventing discrimination “because of sex” or “on the basis of sex.” Under the ruling, discrimination based on sexual orientation and gender identity ran afoul of the standard....

“They’ve ruled,” [President Trump] said. “I’ve read the decision, and some people were surprised, but they’ve ruled and we live with their decision.”

He's read the decision. Ha ha. Did anyone tell him it was 172 pages long before he concocted that lie? I assume it's a lie. And go ahead and bullshit that if you've read any of the opinion — a paragraph, say — you've "read the decision."

Anyway, I'm sure he doesn't mind the Supreme Court taking this pesky issue out of his hair.* "They’ve ruled and we live with their decision." If he really objected, he'd talk about how important it is to reelect him so he can appoint more Justices like Kavanaugh. Oh, but there is the complication that his #1 choice for the Supreme Court, Neil Gorsuch, wrote the opinion. He can't purport to have the power to control where the Court goes with all the legal issues.

But I don't think Trump is keen to hold back gay and transgender people. At most, he hopes to maintain the enthusiasm of the religious conservatives he needs to get reelected. But I don't think he is the slightest bit interested in reining in sexual — or gender — expression. Has he ever reined in his own?
______________________

* His orangified, poofed up, spray-spritzed hair.

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."

"The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid.

Writes Justice Gorsuch, and Chief Justice Roberts is with the majority as well.

The answer is clear, because we've got 2 of the conservative justices joining the liberals. Nice work!

I'm reading the live blogging at SCOTUSblog.

Here's the PDF of the opinion. 172 pages. SCOTUSblog explains:

Alito has a long dissent with at least 4 appendixes, Appendix D is full of images of government forms....

kavanaugh [dissenting] ends with: "Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court's judgement. "

ADDED: From Alito's dissenting opinion, we see how much everyone pays obeisance to Justice Scalia:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but  that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

I understand your argument, but right now, I am busy applauding.

ALSO: This does help Trump, of course.

PLUS: Here's something from the Gorsuch majority opinion:

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex....

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

"It was while in the lower house of Congress that Franklin Pierce took that stand on the slavery question from which he has never since swerved a hair’s breadth."

"He fully recognized, by his votes and by his voice, the rights pledged to the South by the Constitution.... [W]hen the first imperceptible movement of agitation had grown to be almost a convulsion, his course was still the same. Nor did he ever shun the obloquy that sometimes threatened to pursue the northern man who dared to love that great and sacred reality — his whole, united, native country — better than the mistiness of a philanthropic theory.... With his view of the whole subject, whether looking at it through the medium of his conscience, his feelings, or his intellect, it was impossible for him not to take his stand as the unshaken advocate of Union, and of the mutual steps of compromise which that great object unquestionably demanded.... Those northern men, therefore, who deem the great causes of human welfare as represented and involved in this present hostility against southern institutions, and who conceive that the world stands still except so far as that goes forward,— these, it may be allowed, can scarcely give their sympathy or their confidence to the subject of this memoir. But there is still another view, and probably as wise a one. It looks upon slavery as one of those evils which divine Providence does not leave to be remedied by human contrivances, but which, in its own good time, by some means impossible to be anticipated, but of the simplest and easiest operation, when all its uses shall have been fulfilled, it causes to vanish like a dream. There is no instance, in all history, of the human will and intellect having perfected any great moral reform by methods which it adapted to that end; but the progress of the world, at every step, leaves some evil or wrong on the path behind it, which the wisest of mankind, of their own set purpose, could never have found the way to rectify."

From "The Life of Franklin Pierce" by Nathaniel Hawthorne, consulted on the occasion of the University of New Hampshire's idea that maybe it ought to rename its Franklin Pierce Law School.

"John Bolton, Donald Trump’s former national security adviser, wanted to write a book."

"He knew that the White House would do everything it could to stop him. He hired a flashy white-shoe law firm to handle the prepublication review process required by the nondisclosure agreement he signed when he got his security clearance. As expected, the White House weaponized the prepublication review process against him to keep him from publishing. If he published without approval, it said, he could face severe legal consequences. Then his lawyer, Chuck Cooper, wrote a Wall Street Journal op-ed this week intended to put public pressure on the White House. In it, Cooper volunteered that Bolton had violated both his NDA and perhaps a few criminal laws, including the Espionage Act. Now, even if Bolton’s book is never released, he is facing stiff penalties. As unforced legal errors go, that’s a doozy...."

From "Here’s How John Bolton’s Lawyer Just Threw Him Under the Bus/If you can be prosecuted for keeping a classified document in your garage, you can be prosecuted for giving it to your lawyer" (The Daily Beast).

"Jonathan Turley rips Cornell Law faculty letter against me: 'It is the antipathy of the intellectual foundations for higher education.'"

A new post by William Jacobson at Legal Insurrection, linking to "Cornell Professors Declare 'Informed Commentary' Criticizing The Protests As Racism" by Jonathan Turley.

An excerpt from Turley: "What is most striking for me is the inclusion of Professors Mark H. Jackson and Cortelyou Kenney, who teach in the Cornell First Amendment Clinic. They are in fact the Director and Associate Director of the First Amendment Clinic, which is presumably committed to the value of free speech even at private institutions. So these professors teach free speech and just signed a letter that people who question the BLM movement or denounce the looting are per se or at least presumptive racists. It is reflection of how free speech is being redefined to exclude protections with those who hold opposing views."

From Jacobson: "The law school, as an institution, picked sides and declared in a Dean’s Statement that my writings 'do not reflect the values of Cornell Law School ….' I vigorously disagree with that, but was not given a chance to be heard on it, much less some process to contest it.... [T]he Dean’s statement on behalf of the institution... should have been something along the lines of: 'Though I vigorously disagree with Professor Jacobson’s views, those views are protected by academic freedom and no disciplinary action will be taken.' Period."

ADDED: "'It is the antipathy..." — Doesn't he mean "It is the antithesis..."?

In context:

Not a word about academic freedom or free of speech [sic]; not a suggestion that critics of these protests could have anything other than racist motivations. It is the antipathy of the intellectual foundations for higher education. Rather than address the merits of arguments, you attack those with opposing views personally and viciously. That has become a standard approach to critics on our campuses. Unless you agree with the actions of the movement, you are per se racist. It is a mantra that is all too familiar historically: if you are not part of the resistance, you are reactionary.

"Day 10 of protests ends with 'defund police' painted on road leading to [the Wisconsin] Capitol."

The Wisconsin State Journal reports.

Protesters painted "defund police" in giant letters on Martin Luther King Jr. Boulevard Monday night. The street leads from the state Capitol to Monona Terrace, passing between the Madison Municipal Building and City-County Building, at top.

We're told this was "without city permission," but I think that has to be read to mean without explicit city permission. Something that conspicuous — taking that much effort, in that location — is actively condoned. It had the tacit permission of the city.

Also at the link are other photos of the 10th day of protests. Based on the photographs, I would say that the protesters are overwhelmingly white and overwhelmingly female.

If I were still the sort of person who roams around inside protests and talks to people, I would ask them how they would harmonize the #MeToo movement with defunding the police. A year ago, there was so much of a push to get men arrested for things that used to be ignored. Then, the slogan was "Time's up." We were never going back. Is time up on Time's Up?

I remember when it was a big feminist goal to force the police to take domestic violence so seriously that they were required to arrest someone when they answered a call. It became the statutory law here in Wisconsin. I'd like to ask the female protesters whether they ever supported that law and if they did whether they will now declare it to have been a mistake — a racist mistake.

ADDED: In "If they can, why can’t we?," David Blaska muses about painting over the "u" in "DEFUND THE POLICE." Changing the "U" to an "E" would flip the message: "Call it a little editing. Call it vandalizing the vandalism. Call it free speech. Call it civil disobedience. Call it a profile in courage or social suicide in the super-heated atmosphere of progressive Madison. Call a lawyer."

"Urban trekking around Denver the other day, I happened across a protest march of maybe a thousand people. Here’s what I observed. The marchers were almost all white...."

"Most were young women looking vaguely guilt-ridden. They were well-dressed, well-groomed and well-fed.... But one sign troubled me. It appeared in various incantations, but the gist was 'Justice NOW for George.'... I’ve watched the video of George dying, and it was horrifying. If no exculpatory evidence turns up, then I hope those cops rot in jail. I’m guessing nearly all people – including other cops – hope for the same. But notice the 'if' in the preceding paragraph.... Here, the cop has been arrested and is in jail on a million-dollar bond awaiting... trial. Given that, what exactly does the shouted word 'NOW' mean in 'Justice NOW for George'? Are the protesters demanding that we bypass the trial and just lynch the cops right now?"

From "A report from the big white suburban guilty girls picnic march" by Glenn K. Beaton (The Aspen Beat).

We're told not to take "defund the police" and "abolish the police" literally.

In this WaPo op-ed — "Defund the police? Here’s what that really means." — by Christy E. Lopez, who is a a Distinguished Visitor from Practice at Georgetown Law School where she co-directs the Innovative Policing Program. She tells us not to be "afraid" because it's "not as scary (or even as radical) as it sounds."

We turn to the police in situations where years of experience and common sense tell us that their involvement is unnecessary, and can make things worse. We ask police to take accident reports, respond to people who have overdosed and arrest, rather than cite, people who might have intentionally or not passed a counterfeit $20 bill. We call police to roust homeless people from corners and doorsteps, resolve verbal squabbles between family members and strangers alike, and arrest children for behavior that once would have been handled as a school disciplinary issue.

Police themselves often complain about having to “do too much,” including handling social problems for which they are ill-equipped. Some have been vocal about the need to decriminalize social problems and take police out of the equation. It is clear that we must reimagine the role they play in public safety. 

Defunding and abolition probably mean something different from what you are thinking. For most proponents, “defunding the police” does not mean zeroing out budgets for public safety, and police abolition does not mean that police will disappear overnight — or perhaps ever. Defunding the police means shrinking the scope of police responsibilities and shifting most of what government does to keep us safe to entities that are better equipped to meet that need. It means investing more in mental-health care and housing, and expanding the use of community mediation and violence interruption programs....

Why not use words that people can understand and that convey the meaning you want to put in our head? If your idea is so reasonable, why not use words that are effective in making people who care about peace and harmony agree with you?

Police abolition means reducing, with the vision of eventually eliminating, our reliance on policing to secure our public safety....

Now, that's just confusing! You said "reducing" but then you said "eliminating."

The “abolition” language is important because it reminds us that policing has been the primary vehicle for using violence to perpetuate the unjustified white control over the bodies and lives of black people that has been with us since slavery.

But the slavery abolition movement was not about reducing our reliance on slavery! Why take such an important word and undermine what it means? If you successfully "remind us" of the evils of slavery, you are making us think you are saying the police are an evil, like slavery, that must be entirely eradicated.

"Former President Barack Obama is being quoted from a private call that the 'rule of law is at risk' after the Justice Department moved to dismiss the case against... Michael Flynn."

"Obama reportedly told members of the Obama Alumni Association that 'There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.'... [But] former Attorney General Eric Holder... moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan.... The Obama statement is curious on various levels. First... Flynn was never charged with perjury... Second, there is ample precedent for this motion... Third, there is also case law.... Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns.... The rare statement by President Obama is also interesting in light of the new evidence... that Obama was following the investigation of Flynn who he previously dismissed from a high-level position and personally intervened with President Donald Trump to seek to block his appointment as National Security Adviser. Obama reportedly discussed the use of the Logan Act against Flynn. For a person concerned with precedent, that was also a curious focus. The Logan Act is widely viewed as unconstitutional and has never been used to successfully convicted a single person since the early days of the Republic. Now that is dubious precedent."

Writes Jonathan Turley.

"Some may wonder why an innocent man would ever plead guilty. Anyone who knows how the system works in practice..."

"... would understand why an innocent man—or a defendant in a close case—might be coerced into pleading guilty. The cruel reality is that if a defendant pleads not guilty and is found guilty, the sentence will be far greater than if he had pled guilty—perhaps even 10 times greater. Moreover, in this case, it is alleged that the government threatened, if Flynn did not plead guilty, to indict his son. These are the kinds of pressures routinely used by prosecutors. Civil libertarians have long been critical of these pressures, but fair-weather civil libertarians refuse to object when these improper tactics are used against Trump's associates. Partisan hypocrisy reigns."

Writes Alan Dershowitz in "Flynn Was Innocent All Along: He Was Pressured to Plead Guilt" (Gatestone Institute).

"When you hear someone demanding inchoate generalized 'freedom,' ask whether he cares at all that millions of workers..."

"... who clean the zoos and buff the nails and intubate the grandmas are not free. These people are cannon fodder for your liberty. The long-standing tension between individual liberty and the collective good is complicated, and and as Kendi is quick to point out, the balance often tilts, trade-offs are made, federal and state governments shift clumsily along together, and the balance tilts again. Nobody denies that individual liberty is essential in a democracy, but in addition to parsing whether we as a collective do better in providing the 'freedom from' while also offering some 'freedom to,' it’s worth asking whether those making zero-sum claims about liberty are willing to sacrifice anything for freedom, or are just happily sacrificing you."

From "Whose Freedom Counts?/Anti-lockdown protesters are twisting the idea of liberty" by Dahlia Lithwick (at Slate).

Kendi is Ibram X. Kendi who has an article in The Atlantic called "We’re Still Living and Dying in the Slaveholders’ Republic/The pandemic has brought the latest battle in the long American war over communal well-being." Lithwick instructs us that there is "a long-standing difference between core notions of what he calls freedom to and freedom from."

Lithwick's phrasing is confusing. It's "long-standing," so it's not as though Kendi invented the distinction between "freedom from" and "freedom to." Two out of 4 of FDR's "Four Freedoms" were "freedom from" (from want and from fear).  I remember an early interview with Barack Obama, in which he observed that Americans think too much about "freedom to" and not enough about "freedom from."

Lithwick writes:

The freedom to harm, [Kendi] points out, has its lineage in the slaveholder’s constitutional notion of freedom: “Slaveholders disavowed a state that secured any form of communal freedom—the freedom of the community from slavery, from disenfranchisement, from exploitation, from poverty, from all the demeaning and silencing and killing.” Kendi continues by pointing out that these two notions of freedom have long rubbed along uneasily side by side, but that those demanding that states “open up” so they may shop, or visit zoos, are peeling back the tension between the two....

How do you "peel back" "tension"? I had that image of 2 notions rubbing along uneasily side by side for a long time, and then these people who want to shop are "peeling back the tension." That kind of vaguely titillating metaphor is unfair to the reader. I'm seeing 2 notions in bed with each other and the would-be shoppers bursting in and ripping back the sheets. Aha! We see what you're doing! What a distraction! But I suppose that because slavery was invoked, I'm expected to listen without protest while Kendi's solemn, censorious lecture is promoted by an over-excited Lithwick. I resist. Sorry. I do hear what you're saying, and I see how well it works to justify depriving us of all freedom. There's never enough freedom from all the things in the world that might hurt us if we're not kept in eternal lockdown.

“Justice Dept. Drops Case Against Michael Flynn.”

NYT reports.

The extraordinary move comes amid a sustained attack by Mr. Flynn’s lawyers on prosecutors and the F.B.I., accusing them of egregious conduct. In recent days, Mr. Flynn’s lawyers said the Justice Department had uncovered new documents that pointed to misconduct.

In a possible sign of disagreement with the Justice Department decision, Brandon L. Van Grack, an assistant United States attorney who led the prosecution of Mr. Flynn, abruptly withdrew from the case on Thursday. Mr. Flynn’s lawyers have repeatedly attacked Mr. Van Grack by name in court filings, citing his “incredible malfeasance.”

"Supreme Court unanimously reverses 'Bridgegate' convictions."

Fox News reports:

The court recognized that the lane closures, known commonly as "Bridgegate," were done as political payback against the mayor of Fort Lee, N.J. for not supporting the reelection campaign of then-Governor Chris Christie. The problem, the court pointed out, is that this is not a violation of the statutes under which the defendants were charged.

"The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power," Justice Elena Kagan wrote in the court's unanimous opinion. "But the federal fraud statutes at issue do not criminalize all such conduct."

ADDED: Here's the opinion — Kelly v. United States.

AND: An excerpt from the opinion:

Federal prosecutors may not use property fraud statutes to “set[ ] standards of disclosure and good government for local and state officials.”... Much of governance involves (as it did here) regulatory choice. If U. S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be... “a sweeping expansion of federal criminal jurisdiction.”... In effect, the Federal Government could use the criminal law to enforce (its view of ) integrity in broad swaths of state and local policymaking. The property fraud statutes do not countenance that outcome. They do not “proscribe[] schemes to defraud citizens of their intangible rights to honest and impartial government.”... They bar only schemes for obtaining property....

[N]ot every corrupt act by state or local officials is a federal crime. Because the scheme here did not aim to obtain money or property, Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws....

ALSO: Professor Tribe reacts on Twitter: "Congress: let’s amend those statutes!"

That is, he wants the federal prosecutors to be able — in Kagan's words — to "use the criminal law to enforce (its view of ) integrity in broad swaths of state and local policymaking."

"Why is Tara Reade’s official complaint against former Vice President Joe Biden so hard to find?"

"Possibly because the system for lodging it was opaque and challenging for accusers. Reade, a onetime Biden staffer, says she filed a complaint against him in 1993 when he was in his fourth term in the Senate representing Delaware. The process would have subjected her to a system that did little to protect Capitol Hill staffers from retribution and offered little recourse if they were not satisfied with the outcome. It would take a 1995 overhaul of congressional personnel laws to bring Congress in line with federal labor and anti-discrimination laws. Even almost 30 years later, the alleged complaint — the secretary of the Senate won’t even confirm or deny whether there is one — may never be released because of strict disclosure rules.... Four in 10 women who responded to a 2016 CQ Roll Call survey of congressional staff said they believed sexual harassment was a problem on Capitol Hill, while one in six said they personally had been victimized. 'Unfortunately, due to the system that Congress created to protect itself from being exposed, there has been no accountability,' [said Rep. Jackie Speier, D-Calif.]. Between 1997 and 2014, the U.S. Treasury paid $15.2 million in taxpayer dollars toward 235 awards and settlements for Capitol Hill workplace violations...."

From "The opaqueness of Congress’ workplace rules hangs over the Tara Reade allegations about Biden/Secretary of the Senate says law prohibits disclosure of any complaint" (Roll Call).

"A Wisconsin Supreme Court justice on Tuesday invoked the internment of Japanese-Americans during World War II during oral arguments for a challenge to the state's controversial stay-at-home order...."

"The Wisconsin Legislature filed a lawsuit last month in an attempt to reopen the state and block the extension of the stay-at-home order issued by state health officials to slow the spread of the coronavirus. 'I'll direct your attention to another time in history, in the Korematsu decision, where the [U.S. Supreme Court] said the need for action was great and time was short and that justified, and I'm quoting, 'assembling together and placing under guard all those of Japanese ancestry' in assembly centers during World War II,' said [Justice Rebecca] Bradley.... 'Could the [Department of Health Services] secretary under this broad delegation of legislative power or legislative-like power order people out of their homes into centers where are they are properly social distanced in order to combat the pandemic?... The point of my question is what are the limits, constitutional or statutory? There have to be some, don't there, counsel?... My question for you is where in the Constitution did the people of Wisconsin confer authority on a single unelected Cabinet secretary to compel almost six million people to stay at home and close their businesses and face imprisonment if they don't comply with no input from the legislature without the consent of the people? Isn't it the very definition of tyranny for one person to order people to be imprisoned for going to work?'"

CNN reports.

MEANWHILE: A Southern District of New York judge un-cancelled the New York primary, the NYT reports. Democratic members of the State’s Board of Elections made the decision to cancel the primary, and the challenge was brought by Bernie Sanders and Andrew Yang.

“If all but one of the presidential candidates are removed from the ballot and the primary is not held, Delegate Plaintiffs will be deprived of the opportunity to compete for delegate slots and shape the course of events at the Convention, and voters will lose the chance to express their support for delegates who share their views, [U.S. District Judge Analisa Torres wrote]. “The loss of these First Amendment rights is a heavy hardship."

Torres was appointed by Obama.

When Jake Tapper asked Michigan Governor Gretchen Whitmer to explain her belief in Christine Blasey Ford and not Tara Reade...

... she really got desperate. Let's look at the transcript from last Sunday's "State of the Union." Tapper asks a completely fair and well-stated question:

TAPPER:  You have said that you believe Vice President Biden. I want to compare that to 2018, when you said you believed Dr. Christine Blasey Ford after she accused now Justice Brett Kavanaugh of assault. Kavanaugh also, like Biden, categorically denied that accusation. And Blasey Ford, to be honest, she did not have the contemporaneous accounts of her view of what happened that Tara Reade does. You have spoken movingly about how you're a survivor — survivor of assault yourself. Why do you believe Biden, and not Kavanaugh? Are they not both entitled to the same presumption of innocence, regardless of their political views?

WHITMER: You know, Jake, as a survivor and as a feminist, I will say this. We need to give people an opportunity to tell their story. But then we have a duty to vet it. And just because you're a survivor doesn't mean that every claim is equal. It means we give them the ability to make their case, and the other side as well, and then to make a judgment that is informed. I have read a lot about this current allegation. I know Joe Biden, and I have watched his defense. And there's not a pattern that goes into this. And I think that, for these reasons, I'm very comfortable that Joe Biden is who he says he is. He's — and you know what? And that's all I'm going to say about it. I really resent the fact that, every time a case comes up, all of us survivors have to weigh in. It is reopening wounds. And it is — take us at our word, ask us for our opinion, and let's move on.

Let's move on?! The question does ask her to answer as a survivor, and she began her answer "as a survivor and as a feminist." She didn't object to being asked as a survivor until after she'd answered, though she did begin by expanding her status from "survivor" to "survivor and... feminist."

But after quickly answering, she registered her objection: She resents that her survivor status makes her a target of questions about sex assaults. It reopens the old wound. But she does want to be asked. She wants to get the question, to answer it quickly, and to be believed as a commentator on the things that happened to other people: "take us at our word, ask us for our opinion, and let's move on."

I certainly believe it's her opinion that Kavanaugh did what Blasey Ford said he did and Biden did not do what Tara Reade said he did, but why is that her opinion? Is it only because of what political side Whitmer is on? If so, I can understand telling us to move on. Don't look too closely at that.

Notice how Whitmer stopped herself in the middle of her explanation of why Biden's denial is more believable than Kavanaugh's: "I'm very comfortable that Joe Biden is who he says he is. He's — and you know what?" She decided not to go on about her reason why but to switch to attacking Tapper for asking the question. You know what? I resent the question! Let's move on!

That seems to give the game away. Her reason was that she's on Biden's side. It's like the way Bill Clinton was treated back in the 90s — complete with the old "move on" catchphrase.

Tapper defended himself:

TAPPER: Well, just for the record, the reason I'm asking you is because you're the only Democrat on the show today, not because you're a survivor, and not because you're a woman. But thank you so much for your time. I want to...

Well, he did present her survivor status as a basis for authority on whom to believe. He said "You have spoken movingly about how you're a survivor... of assault yourself: Why do you believe Biden."  She may have been "the only Democrat on the show today," but why was she  the only Democrat on the show today? Looking at the whole transcript, I think it was because of the protests against the lockdown in Michigan. I can see how maybe she felt ambushed by that extra question.

She responded to his self-defense:

WHITMER: Yes. No, and it's not a criticism of you, Jake. It's not a criticism of you. You're doing your job, and I appreciate that. I'm just sharing, I think, some of the simmering anger that we survivors have every time that we have got to confront this from someone else's behavior that we weren't a party to, that we weren't even a part of the reality in the moment. What I think is this. We owe it to every woman who has a story to listen to that story, and then to vet that story, ask the questions and be critical thinkers, and then make a judgment, based on all of those pieces. I have done that in this instance. And I will tell you this. I don't believe that it's consistent with the Joe Biden that I know. And I do believe Joe, and I support Joe Biden.

There is no further question, but here are the questions I would ask:

Does it all depend on who you know? If someone you know is accused, you disbelieve the accuser, but if someone you don't know is accused, you believe the accuser? Or does that depend on whether you like that person you know or the person you don't know? Seriously, what is the rule going forward as these accusations arise — especially in the context of a nomination for a high office, where there is the temptation to try to find a shortcut to bring someone down? We can't make it easier and easier to destroy a candidate, and it can't work — it shouldn't work — to stand up for the candidates we support and to participate in the destruction of the candidates we oppose, so don't you need to reexamine your position on Brett Kavanaugh if you want fair-minded people to accept your vouching for Joe Biden? You say we need to listen to every story, vet that story, and be critical thinkers, but where is the critical thinking in your distinction between Brett Kavanaugh and Joe Biden?

ADDED: Rereading this post, I noticed a point where Whitmer deviated from supporting Biden and said something that I think is properly respectful of the problem of due process to the accused. In her response to Tapper's self-defensiveness, after she rejected the idea that she was criticizing him, Whitmer talked about the "simmering anger" that survivors feel as they are called upon to look at the evidence and weigh in on whether the accused is guilty or innocent. She doesn't like having "to confront this from someone else's behavior that we weren't a party to, that we weren't even a part of the reality in the moment."

I'm not sure exactly what that meant. Maybe it's the idea of reopening the wound. To judge what happened you have to hear the evidence and imagine the entire scene, the events, and put yourself inside of it and to use your own personal experience to form a belief about whether it is true. That's a painful ordeal, and those who impose it on the survivor ought to be more aware of what they are doing.

Maybe it's the idea that fact-finding is truly difficult. It's difficult in a courtroom trial, with all of the safeguards of cross-examining witnesses under oath and a judge excluding improper evidence and meticulously instructing a sworn-in jury about the legal standards. And it's all the more difficult when we've got allegations passed along in newspaper articles and amplified by political partisans. Whitmer may have been saying — just in that one sentence — that she is in no position to give the accused the due process he deserves.

"I recognize this request is unusual and constitutes a drastic measure, and the emergency powers set out under the Riot Control Act should be invoked sparingly.

"However, the COVID-19 outbreak in the city of Gallup is a crisis of the highest order. Immediate action is necessary," wrote Mayor Louis Bonaguidi,  quoted in "Roads closed into New Mexico city to mitigate 'uninhibited spread of Covid-19'" (CNN).

Under the Riot Control Act, anyone who fails to comply with restrictions imposed under the act is guilty of a misdemeanor, and upon conviction of a second or subsequent offense is guilty of a fourth-degree felony....

"The spread of this virus in McKinley County is frightful," Lujan Grisham said. "And it shows that physical distancing has not occurred and is not occurring. The virus is running amok there. It must be stopped, and stricter measures are necessary."

I was only familiar with Gallup, New Mexico from the song "(Get Your Kicks on) Route 66" — "You see Amarillo/Gallup, New Mexico/Flagstaff, Arizona/Don't forget Winona..." — but I'm reading about it now. Wikipedia:

Gallup (Navajo: Naʼnízhoozhí /nɑ̀ʔnɪ́ʒòːʒɪ́/; Zuni: Kalabwakin) is a city in McKinley County, New Mexico, United States, with a population of 21,678 as of the 2010 census. A substantial percentage of its population is Native American, with residents from the Navajo, Hopi, and Zuni tribes. Gallup is the county seat of McKinley County and the most populous city between Flagstaff and Albuquerque, along the historic U.S. Route 66.

The city was founded in 1881 as a railhead for the Atlantic and Pacific Railroad, and named after David Gallup, a paymaster for the railroad. It is on the Trails of the Ancients Byway, one of the designated New Mexico Scenic Byways. Because of the nearby rugged terrain, it was a popular location in the 1940s and 1950s for Hollywood Westerns....

Gallup is known as the "Heart of Indian Country" or "The Heart of Indians" because it is on the edge of the Navajo reservation and is home to members of many other tribes as well.

"By Biden’s Own Standards, He Is Guilty As Charged."

Headline at the new Andrew Sullivan column (in NY Magazine). Excerpt:

Perhaps in part to atone for his shabby treatment of Anita Hill, Biden was especially prominent in the Obama administration’s overhaul of Title IX treatment of claims of sexual discrimination and harassment on campus. You can listen to Biden’s strident speeches and rhetoric on this question and find not a single smidgen of concern with the rights of the accused. Men in college were to be regarded as guilty before being proven innocent, and stripped of basic rights in their self-defense....

In 2014, the Obama administration issued another guidance for colleges which expanded what “sexual violence” could include, citing “a range of behaviors that are unwanted by the recipient and include remarks about physical appearance; persistent sexual advances that are undesired by the recipient; unwanted touching; and unwanted oral, anal, or vaginal penetration or attempted penetration.” By that standard, ignoring the Reade allegation entirely, Joe Biden has been practicing “sexual violence” for decades: constantly touching women without their prior consent, ruffling and smelling their hair, making comments about their attractiveness, coming up from behind to touch their back or neck. You can see him do it on tape, on countless occasions.

Of course, his argument about all of that is that it wasn't sexual. Who thinks that hair smelling and neck nuzzling was a sexual advance on all those little girls (even if it always was on girls and not boys)?

He did not stop in 2014, to abide by the standards he was all too willing to impose on college kids. A vice-president could do these things with impunity; a college sophomore could have his life ruined for an inept remark.

Biden is now claiming simply that he never did what Tara Reade said he did. Let’s posit that he didn’t. Too bad.... By Biden’s own standards, he’s guilty as charged. He never got affirmative consent from Reade, and she feels and believes he assaulted her.

He says the entire incident didn't occur. There was no gym-bag-in-the-corridor encounter at all. Or... was there? Did Mika nail that down or not??

He never got affirmative consent for countless handsy moves over the decades that unsettled some of the recipients of such affection. End of story. By Biden’s own logic, it is irrelevant that he didn’t mean to harm or discomfit anyone, that Reade’s story may have changed over time, that she might have mixed motives, that she has a record of erratic behavior, a bizarre love for Vladimir Putin, and a stated preference for Bernie Sanders, who was Biden’s chief rival. It’s irrelevant that she appeared to tweet that she would wait to launch her accusations against Biden until the timing was right. And her cause has been championed by the Bernie brigade. The many red flags and question marks in her case are largely irrelevant under Biden’s own campus standards....

Bottom line: "I’ll vote for him anyway, because Trump."