Opinion Trump’s reckoning begins
Answer: The voters get their say in a democracy. Should they be so reckless as to elect Trump, the Constitution would invest him with all powers of the chief executive, including (especially!) those of commander in chief. Voters need to contemplate just how dangerous that would be.
A reader asks: Can any of the judges in Trump’s pending trials call for a psychological evaluation?
Answer: The four-times-indicted former president has not pleaded insanity or diminished capacity. The judges, therefore, cannot initiate an evaluation on their own.
A reader asks: If the Republicans and the courts bring back enforcement of the Comstock Act, should Democrats and women’s groups start attacking the mailing of Viagra, other erectile dysfunction drugs and testosterone products as being “obscene” and used for “obscene purposes?” Good for the gander, good for the goose?
Answer: It’s a great argument in court. Applying the law only to women’s reproductive devices and medication is a violation of equal protection (as well as due process, if the Supreme Court still recognizes substantive due process) and the First Amendment. I wouldn’t, however, fight one constitutional outrage with another (i.e., retaliate with a broader Comstock Act that applies to men as well). The goal should be to get rid of this monstrous law.
A reader asks: How do we get the media to accurately report the likely fascist consequences of a potential second Trump term? I don’t see the general public taking this threat seriously enough.
Answer: Traditional media insist this is a traditional election with two competing parties, not a contest between democracy and authoritarianism. Media have so completely bought into the false equivalence that they cannot accurately define the MAGA movement. Nevertheless, President Biden now consistently highlights Trump’s dictatorial plans and fascist language. Biden will need to do more to force the media to pay attention.
A reader asks: I recently read in the Economist about controversy over assisted suicide. What’s your opinion? The position is very different across diverse countries.
Answer: The bill under consideration in the British Parliament would allow a patient to request life-ending medication under very strict circumstances (e.g., two independent doctors and a judge to verify that the patient has a terminal illness with six months or less to live, and is not under duress). On one hand, I believe deeply in personal autonomy. That said, even with restrictions, the danger for abuse (as seen in the Netherlands) remains. Moreover, given the rapid strides in medicine, I don’t know how doctors can be so certain about a six-months-to-live prognosis. I also worry about the slippery slope (expanding assisted suicide from terminal patients to chronically ill ones). While I support giving patients the full range of palliative care at the end of life, I remain deeply conflicted about assisted suicide laws.
A reader asks: Can Trump’s attorneys resign to delay his trials while new counsel is hired and brought up to speed?
Answer: In all likelihood, no. The judge would have to let the attorneys off the case. In any event, Judge Juan M. Merchan would almost certainly tell Trump to proceed with another of the former president’s bazillion lawyers.
A reader asks: Let’s suppose that Trump gets convicted, loses the election and winds up in prison. Do you think the other trials will go forward?
Answer: It often happens that, after an initial conviction, the felon gets brought to other jurisdictions for trial. This would be no different.
Further thoughts
Despite Trump’s whining and incessant maneuvers to delay a trial, he now sits in a New York courtroom facing 34 felony charges. The judge on Monday methodically struck down Trump’s objections to evidence demonstrating his fear that the alleged sexual encounters would ruin his election chances in 2016. Oh, and a hearing on whether he should be held in contempt for his ongoing Truth Social threats against witnesses will be held next week.
This is what justice looks like: slow but effective, imperfect but satisfying. When the rule of law operates as it should, it’s something to behold.
Journalism 101
People on social media and other critics justifiably mocked, derided and denounced the New York Times for the headline, “Two Imperfect Messengers Take On Abortion.” The sub-headline was nearly as bad: “Neither side of the abortion divide would probably design the exact candidate they have in 2024.” This could be the crown jewel of “both-sidesism,” accomplishing that feat in multiple ways.
For starters, it blurs the distinction between Biden’s clear and unwavering position (to write Roe v. Wade into a federal statute) with Trump’s well-documented inconsistencies, deflections and contradictions. These two men simply are not equally deficient communicators. That imbalance in clarity and sincerity actually might determine the campaign’s outcome.
In addition to mischaracterizing the candidates’ relative abilities, this quintessential “process story” diminishes the issue’s moral gravity. You could not imagine a 1942 headline: “Two imperfect messengers take on world war.” Awarding style points, as the story does, trivializes the abortion issue.
Finally, the Times headline amounts to a self-parody of gamified political coverage: “Neither side of the abortion divide would probably design the exact candidate they have in 2024.” (Well, neither team in the World Series would design the exact lineup they have.) In essence, the Times tells us, “No one’s perfect!” — an empty platitude. Journalists owe readers an accurate depiction of the candidates’ vast differences in consistency, clarity and moral seriousness on abortion. Alas, such precision would demand truth-telling in lieu of feigned “balance.”
Legal highlight
After the 4-2 Arizona Supreme Court ruling reinstating an 1864 abortion ban, women can only hope that the adage “Today’s dissent is tomorrow’s majority” holds true. In this case, the court’s dissenting justices excoriated the majority for inventing an ambiguity in a law. A plain reading of the text should have required implementation of a 15-week restriction and an exception when the health of the mother is at risk, not a complete ban.
Vice Chief Justice Ann Timmer wrote for the dissenting opinion: “Relying on a statutory construction note tucked within a session law predating Dobbs, the majority interprets [the abortion law] as providing that if Roe was overruled, the state would turn back the clock to 1973 by enforcing the near-total abortion ban against physicians, even if they comply with [the law] by performing elective abortions before the fifteen-week gestation point or performing abortions when necessary to prevent serious impairment to the pregnant woman’s health.” Timmer slams the majority’s assumption that a legislature would “hide elephants in mouseholes.” Translation: Lawmakers wouldn’t throw a monumental edict into what amounts to a footnote.
Unlike the majority, Timmer declines “to engage in the guesswork needed to engraft onto [the 15-week law’s] straightforward language a meaning the legislature may or may not have intended had it anticipated the Supreme Court would overrule Roe.” For good measure, she cites conservative icon Justice Antonin Scalia to support the dissent’s textualist position.
Once more, a savvy dissent reveals that right-wing judges (who used to demand strict adherence to texts’ plain meaning and excoriate liberals for concocting flimsy grounds to reach their desired conclusions) apparently didn’t mean that their vaunted interpretation rules would apply to abortion, of all things. Hmm. Maybe they have always been ideological partisans desperate to impose Christian nationalism on an unwilling country.
Next week, I’ll have my online chat, so please submit your questions. Questions submitted after next Wednesday will go to my next Mailbag newsletter.
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