More than a few folks have been dogging out Attorney General Merrick Garland for supposedly moving too slowly on the January 6th investigation and for not appointing a Special Counsel sooner.
Setting aside the fact that Garland had no statutory authority to appoint a Special Counsel before he did (hold that thought – I’ll get back to it in a minute), it’s funny to see people treating Jack Smith like a badass action hero and Garland like a hapless failure – when it was Garland himself who selected and hired him.
But that said, it’s becoming apparent that Garland is even slicker and more strategic than people realized.
As I noted, Garland’s been getting heat for not appointing Smith sooner. But that criticism is founded on a lack of understanding of the Special Counsel statute An Attorney General can’t just appoint a Special Counsel whenever they choose or because they want to speed up an investigation and get a prosecution wrapped up before an election. They can only appoint a Special Counsel if a conflict of interest arises that makes it inappropriate for DOJ attorneys to handle an investigation and prosecution. And that conflict first arose last November when Trump declared his candidacy, making himself a political rival of Garland’s boss. And Garland was ready – the minute that happened, Garland pounced and sicced the barracuda on Trump.
In retrospect, it apoears more and more like Garland played Trump like a fiddle, quietly going about his business, overseeing an investigation that, despite the endless complaining of teevee pundits and anonymous sources, was moving along robustly and quickly.
And then Trump messed up and played right into Garland’s hands, announcing his candidacy well before he had to, giving Garland the perfect excuse to bring in Smith, something he couldn’t have done if Trump hadn’t announced his intention to run against the president Garland reports to. The speed with which Garland moved to appoint Smith, who was named just two days after Trump’s announcement, suggests Garland already had that card up his sleeve and was just waiting for Trump to misplay his hand to pull it out and slap it down.
Smith was ready, too. He came in hot, built on the work DOJ had been doing for the previous year and a half, and took it to the next level in a way that would have been difficult, if not impossible, for DOJ prosecutors to do on their own.
We’re now starting to see the results – because it’s now clear that, contrary to what some of Garland’s detractors claim, Garland didn’t bring Smith in to START the investigation. He brought him in to FINISH it
Folks all over the broadcast and cable programs and in social media have been discussing various aspects of Trump’s latest indictment, what it means, what will happen if he’s convicted, whether he can be barred from office or have his benefits and Secret Service stripped away, etc.
Unfortunately, much of what is being said and written is inaccurate and sometimes just flat out false.
Because few things are more frustrating to me – a lawyer, Constitutional law expert, and former government official, who respects and cares about the law and justice – than to see people being misled and misinformed, I have written a basic primer to explain a few of the more discussed but misunderstood legal concepts involved in the Trump case.
Here are goes:
SECRET SERVICE: As a former president, Donald Trump is entitled by law to lifetime Secret Service protection. Even if he is convicted of a crime and Congress changes the law to make former presidents who are convicted of a crime ineligible, the new law will not apply to him and he will remain eligible for Secret Service protection for the rest of his life. The law can be changed to strip Secret Service protection from a former president who is convicted of a crime. BUT that can only be applied prospectively. Such a law cannot be applied retroactively to take away Secret Service protection from a president who already became entitled to it.
The reasoning is a little complicated, but it is based on a provision in the Constitution that bans “ex post facto” laws that criminalize behavior that was not a crime at the time the person engaged in it. That has been extended to also apply to actions that punish people by taking away entitlements that have already vested.
Therefore, because Donald Trump became entitled to receive lifetime Secret Service protection as soon as he became president and it became an immutable fact that he would eventually be a former president when there was no prohibition against a former president receiving Secret Service protection, any revision in the law that changes what a former president is entitled to cannot be applied to him. It can only be applied to former presidents who became eligible for Secret Service protection upon become president AFTER the law’s amendment. If Congress amended the law next week, it would not apply to Biden or any past president. It would only apply to the president who succeeds Biden and their successors.
Thus, no matter what people think or want or wish, Donald Trump is, without equivocation, entitled to continue having a Secret Service detail the rest of his life and that will not change even if he is convicted of a crime.
FELONY CONVICTION AS A BAR TO THE PRESIDENCY: Congress cannot pass a law prohibiting convicted felons from serving as president. That can only be done through a Constitutional amendment, which requires 2/3 vote in both the House and the Senate and ratification by 38 of the 50 states.
This is because eligibility for the presidency is set forth in the Constitution and can only be changed by amending the Constitution. Congress cannot add additional qualifications to the criteria delineated in the Constitution.
14th AMENDMENT BAN ON INSURRECTIONISTS: Section 3 of the 14th Amendment prohibiting federal officers who have engaged in insurrection from holding federal office does not apply to Donald Trump – or any other federal official to date – and cannot be used to keep Trump off of the ballot.
This is because of another section of the 14th Amendment – the Due Process Clause – which states that no person can be deprived of life, liberty or property without due process of law. A job or office is considered to be a property rights for the purposes of Constitutional analysis, and thus, before someone can be denied the right to hold a federal office that they are otherwise eligible for under the Constitution, they must be accorded full due process.
This means that a person cannot be barred from office simply because they are accused of engaging in or some people are certain they engaged in an insurrection. Due process requires a specific finding of such wrongdoing by an impartial process in which the accused has a full opportunity to confront their accusers and defend themselves. Without a specific judicial or administrative process put in place for this special circumstance, a court ruling – likely in the form of a criminal conviction – would have to be issued before the 14th Amendment bar could be invoked.
Donald Trump not only has not been convicted of engaging in an insurrection, he has not been charged with that crime. So the 14th Amendment prohibition cannot be applied to him and likely never will be.
SOLITARY CONFINEMENT: Holding Trump in solitary confinement, if he is convicted, would very likely be ruled unconstitutional and, thus, is not a logical alternative for incarceration should he be convicted.
Solitary confinement is an extraordinary measure used only in extraordinary circumstances. This is because such confinement has tremendous negative psychological impacts on prisoners and, thus, is used sparingly and only when there is solid, compelling evidence that the prisoner is a danger to himself or others, or has engaged in behavior that merits severe punishment. Putting a prisoner in solitary confinement because he requires special security by virtue of being a former president comes nowhere close to meeting that high bar. If Trump were ordered held in solitary confinement for that reason, the confinement would very likely violate the Eighth Amendment prohibition against cruel and unusual punishment. TREASON: Donald Trump did not commit treason and has not been charged with doing so.
Treason is a very specific crime defined by the Constitution and statute: it occurs ONLY when a citizen “levies war against [the United States] or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.”
Regardless what Donald Trump has done, he has not engaged in treason under the legal definition and has not been charged, and will not be charged with treason.
When Pam and I were kids, we each had a Barbie. Mommy insisted our Barbies have different color hair because if they looked too much alike, we’d fight over them. Pam always got the blonde one because in Pamaland, Pam always got first dibs and blondes have more fun and we planned to eventually both become blondes ourselves when we grew up.
We also had Midge, Barbie’s best friend, and Skipper, her little sister or cousin or something.
And then there was Ken. We were never sure what to make of him and couldn’t quite work out what his relationship was with Barbie. It was complicated.
We had a Barbie car. It was SHARP – a blue Mustang that had room for Midge and Skipper. Sometimes Ken got to come along, too, but, as I said, we don’t really need to talk much about him.
And we made a state-of-the-art Barbie beauty salon with bathroom-sized Dixie cups and Popcicle sticks. I’m talking shampoo bowls (with neck cutouts), dryers, reception desk – the whole works. I think some salons are still basing their setup on our design …
One Easter, we added to the gang when I got a Honey West doll, which I had begged for because Honey West was so pretty on her television show, with her blond bouffant and sassy beauty mark, and the doll I saw in the commercial looked just as beautiful. But when the doll arrived in my Easter Basket, she didn’t look anything like the really Honey West or the doll I saw on TV. Sbe looked like a hawk. A mean one.
I cried and hid her in the toy box. But Pam, who was always very clever, dug Honey out of her toy grave, chopped off most of her hair into what she called the “Cockadoodledoo” style, a precursor of a punk cut (Pam was always ahead of her time) and we seamlessly transitioned her into a man doll since sometimes the girls needed a man around and Ken was, well, just not cutting it.
We dressed Honey in Ken’s clothes and, of course, he looked much better in them than Ken could ever hope to.
And that, my friends, is how Pam invented what may have been the very first trans doll.
And the Barbies and Midge and Skipper were totally cool with it because they weren’t jerks.
Not sure what Ken thought about it but I’m pretty sure we didn’t care.
Some folks have been calling for the Trump trials to be televised live, but not only don’t I think that will happen, I believe it’s for good reason.
The argument used to advocate for cameras in the courtroom is that people have a right to know what happens during the trial. And we do. But that doesn’t mean we have a right to watch the trial live on television. As with most federal trials, there will be full transparency: members of the public will be permitted in the courtroom, there will be comprehensive media coverage, and verbatim transcripts will be prepared and released.
This makes sense and is appropriate.
Because the bottom line is that the primary purpose of a criminal trial is to determine a defendant’s guilt or innocence through due process. Broadcasting the trial to an international audience does nothing to advance that purpose. And it can often thwart it, making it difficult, if not impossible, for the defendant to receive a fair trial.
The public does have an interest in transparency and knowing what is happening in a trial, but the public’s interest does not outweigh the defendant’s right to a fair trial.
The courts address the public’s right to know by making the proceedings open – as I noted, members of the public can attend, space allowing, the media reports to the broader public, and full verbatim transcripts are available. But the public doesn’t need to see the expressions on everyone’s face (which they wouldn’t see anyway with a camera in the courtroom and they likely would never even see Trump since the camera would likely be stationery and trained only on the witness box) or follow every objection and bench conference in order to know what’s happening in the trial.
Some, of course, will argue that this isn’t like any other trial and Trump.isn’t like any other defendant. This is true. But the fact that this case may be different doesn’t mean that due process should be thrown out the window because the case is bigger than normal or the public has a greater interest in this trial than it does for other court proceedings.
It’s interesting that whenever they think Trump isn’t being treated exactly as every other defendant is treated, people complain about how wrong it is for the rules not to apply to him and insist that he be treated just the same as everyone else. And yet, when it suits them, they want the federal courts to make a huge exception, turn the rules and law on their heads, and treat Trump very differently than everyone else.
Can’t have it both ways.
I think it’s highly unlikely that the federal courts will make an exception and allow any of Trump’s federal trials to be televised. And I don’t think it’s a good use of time to fret over it or to expend energy trying to get the courts to change their policy, since the courts aren’t going to revise federal rules in response to a letter writing campaign.
And frankly, even in they did, as a former trial lawyer, I can say with confidence, that most of the people who are pushing the hardest to get cameras in the courtroom would be the most disappointed by what they end up seeing, since federal criminal trials don’t look or sound anything like Law and Order.
I continue to urge everyone here to focus their energies on turning out the vote to ensure Joe Biden and Kamala Harris get the 270+ electoral votes they need to win a second term and keep Trump from ever getting near the levers of presidential power again.
Brian Baez shared an important observation today on Twitter:
“No doubt Ketanji Brown Jackson is a brilliant legal scholar. There is an art to carefully crafting language and creating persuasive lines of argumentation. She has been cited on all 3 majority opinions today. No other justice was. IMPACT.”
This is an outstanding example of the brilliance and power of this extraordinary jurist, whom President Biden elevated to the U.S. Supreme Court last year.
When Ketanji Brown Jackson was nominated, I noted that the fact that she would be in the minority did not mean she would be without.a voice: one of the most important aspects of being an appellate court judge is the ability to educate and influence the other judges on your court. She is proving me correct.
Appellate court judges don’t decide cases in a vacuum. They listen to and are influenced by each other in many ways. Strong, passionate voices and principled, intelligent arguments can sometimes convince other judges to change their minds and change their votes.
My father, the late Nathaniel R. Jones, sat on the federal U.S. Court of Appeals for the Sixth Circuit for 23 years. His colleagues – liberals, conservatives, and moderates, alike – often spoke of the influence he had on them. Whether it was the questions he asked from the bench, points and arguments he made when discussing cases in conference, the opinions he drafted, the recommended edits he made to other judges’ draft opinions when they were circulated for review and comment, or conversations he had with them at lunch, in chambers, or just walking down the hall, he was always teaching them, helping them to see things through a different lens.
This wasn’t unique to my father. Justice Sandra Day O’Connor described how she was influenced by her own colleague, Justice Thurgood Marshall:
“Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who had seen the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice. At oral argument and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
I have no doubt that Justice Jackson is having the kind of impact on some of her fellow Supreme Court justices today that my late father and Justice Marshall had on their colleagues in their day.
I don’t think it’s mere happenstance that three of the Court’s staunchly conservative members – Roberts, Kavanaugh and Barrett – joined the majority today in rejecting the Independent State Legislature theory. And it wasn’t just a happy coincidence that, a few weeks ago, Roberts and Kavanaugh helped the liberals on the Court throw out Alabama’s racially discriminatory voting map.
Justice Jackson is a brilliant thinker and a superlative judge, whose legal analyses are always spot on and who expresses herself in writing and in speech with clarity and eloquence. She has no doubt earned the respect of her fellow justices and she has surely gotten the ear of at least a few of them.
Today’s triple play – being cited in three different cases – and the outcome in two recent critical cases suggests that Justice Ketanji Brown Jackson is not only speaking truth in the quiet cloistered rooms of judicial power, but that she is being heard and heeded.
Although she’s been gone for nearly three years, there is still considerable discussion in progressive circles blaming Justice Ruth Bader Ginsburg for the current disaster on the Supreme Court, accusing her of “letting us down,” “dropping the baton,” being “selfish and egotistical,” and other various wrongs and failings because she did not retire in 2013 and allow President Obama to appoint her successor.
Not only are these accusations unfair to a heroine who gave her all to fight for social justice for decades and did more for women and marginalized people than most of us can even imagine, much less come close to replicating, blaming her for the current makeup and direction of the Court is counterfactual and historically inaccurate.
Here are the facts:
1. Justice Ginsburg had an opportunity to retire in or prior to 2013. She chose not to.
2. While there were some reports that President Obama asked her to retire in 2013, those are based on second-hand and anonymous sources and have never been confirmed. So, while it’s possible that the President or his interlocutors asked her to step down, we do not know whether this actually occurred.
3. After early 2014, there was a certain risk that if Justice Ginsburg retired, Senate Republicans would block any nominee Obama named to replaced her.
4. At that point, the only chance for President Obama to replace Justice Ginsburg with a nominee of his choosing would be for the Democrats to increase their margin of majority in the Senate. their majority and in the 2014 midterms.
5. But in 2014, not only did the Democrats reduce, not increase, their numbers, they lost the majority when Republicans won enough seats to take control, thereby virtually ensuring that, should Justice Ginsburg step down, her seat would not be filled during President Obama’s term. That likelihood was confirmed when, following Justice Scalia’s unexpected death, Senate Republicans blocked President Obama’s nominee for the remainder of his term.
6. Given this, it was clear the window of opportunity for Justice Ginsburg to retire and be replaced by a liberal had closed. After 2013, she could NOT retire if there was to be any chance for her seat to be filled by a liberal. Of course, she could have stepped down anyway and taken the chance, but as we saw with the Garland nomination, that chance was too dangerous. If she wanted her seat saved, she had to stay in it until the next Democratic administration.
7. In 2016, Hillary Clinton, President Obama, their surrogates and civil rights activists across the country repeatedly and loudly warned that the Courts were on the ballot, that the next president would definitely fill one, likely two and possibly three or more Supreme Court vacancies, and any vote not cast for Hillary Clinton was a vote to install conservative justices on the Supreme Court and lower federal courts.
8. Despite the fact that it was distinct possibility that Justice Ginsburg could die during the next term and her seat would fall into the hands of the next president, a critical mass of progressives refused to vote for Hillary Clinton. As a result, Donald Trump was elected president.
Here is some basic math:
1. In 2013, the Supreme Court was split 5-4, with liberals tenuously in control, depending on how Justice Kennedy, who often, but not always, voted with the Court liberals. Had Justice Ginsburg stepped down and been replaced by a liberal in 2013, the balance would have remained unchanged.
2. After Scalia’s death in 2016, the balance shifted to 4-4, where it remained until 2017.
3. Within days of his inauguration in 2017, Trump, as he’d promised during the campaign, appointed an extreme conservative, Neil Gorsuch, to Scalia’s long open seat. The Court returned to a 5-4, slightly left-leaning majority.
Ginsburg was still on the Court.
Had she stepped down and been replaced by a liberal in 2013, the balance would have still been 5-4, slightly left leaning.
4. In 2018, Justice Kennedy, the swing vote, retired and was replaced by the fervently right wing Brett Kavanaugh. The Court balance lurched sharply to the right, with conservatives now holding a solid 5-4 majority.
Ginsburg was still on the Court.
Had she stepped down and been replaced by a liberal in 2013, the balance would have still been a solid 5-4 conservative majority in 2018.
6. Justice Ginsburg stayed on the bench for two more years, working up until the very end of her life. When she died in September 2020, she was replaced by Amy Coney Barrett, increasing the conservatives’ already solid majority to 6-3.
Based on these facts and numbers, a few things are certain and indisputable:
1. While in hindsight, knowing what we know now, it might have been good for Justice Ginsburg to retire in 2013, there was no way to predict two unprecedented occurrences that would affect the Court in the future – Mitch McConnell’s abuse of the Senate confirmation process and the election of Donald Trump.
2. After Justice Ginsburg didn’t retire in 2013, the burden and power shifted from her to the electorate to elect a Democratic president to succeed President Obama to ensure that when she did retire or die, a Democratic president, not a Republican one, would fill her seat. There was nothing else she could do to protect her seat but to stay in it until that happened.
3. The electorate failed to elect a Democratic president in 2016, so all Justice Ginsburg could do was stay in her seat, if there was any hope of turning it over to a liberal. And she did, for another four years. Often, Justice Ginsburg was the deciding vote in critical cases and provided a strong voice in majority opinions and dissents. It’s likely that she would have loved to have retired, to enjoy her final years and days in peace and quiet. But she remained at her post and continued to fight for us until the very end when her body gave out in September 2020.
4. As is clear from the fact that the conservatives seized full control of the Court in the fall of 2018, a full two years before Justice Ginsburg died and while she was still on the Court, that her decision not to retire prior to 2014 is NOT the reason for the Court’s rightward shift. The Court flipped conservative because a Republican Senate was elected in 2014 and a Republican president was elected in 2016, not because Justice Ginsburg didn’t retire in 2013.
5. Even if Justice Ginsburg had retired in 2013 and President Obama managed to get a liberal successor confirmed, the current Supreme Court would still be a solidly conservative 5-4 today – UNLESS the voters had made different choices on the 2014 Senate race and 2016 presidential election.
Now here is some fundamental truth:
Had progressives helped Senate Democrats keep their majority in 2014 and not helped usher Trump into the White House in 2016, even if Justice Ginsburg had remained on the bench until she died in September 2020, the Court would now be 5-4 with liberal justices in control.
The bottom line is that we are not in this situation because of anything Justice Ginsburg did or didn’t do. We are where we are, not because Justice Ginsburg didn’t step down, but because we, progressive voters, did not step up.
Using hindsight to smear her because voters made a decision to allow Senate Republicans to control the confirmation process and Donald Trump to fill vacant Supreme Court seats is based on a lie. And worse, it is a cruel and vicious disservice to a great American heroine who gave us her very last measure and deserves our respect and gratitude.
So, the next time anyone feels compelled to blame someone other than Mitch McConnell and Republicans for our situation and is tempted to point the finger of shame at our side, lay off of our dead heroine and turn that finger the other way around because WE must shoulder a large share of the responsibility.
And if you still feel the need to bring her into the discussion, it would be best to simply say, “Thank you, Justice Ginsburg for your service.”
When I was a young associate in a large law firm – the first and only Black attorney they’d ever hired – I noticed something interesting about how they assessed Black potential hires. Whenever Black attorneys applied to the firm, the hiring committee circulated their law school transcripts and made a point of urging the hiring attorneys to review them, something they never did for white applicants.
White lawyers with any experience out of law school were assessed based on their post-law school performance – their track record as a lawyer, references, etc. Similarly-situated Black applicants were also evaluated on all of those things AND their grades and LSAT scores, measures that are merely predictors of future success that really mean nothing once a student graduates and actually starts working. I came to realize this was done in order to keep Black lawyers out. “Yes, he’s done well as an attorney and has excellent references. But did you see his GRADES? He probably would not do well here.”
And then, when I joined a law school faculty and participated in faculty recruiting, i saw the same thing. We never saw the academic transcripts of white applicants but when Black applicants were considered, we were strongly encouraged by some hiring committee members to review their transcripts, which were kept in a special folder in the dean’s office. As they were at the law firm, the invitations to visit that file were offered as a warning, in hushed, concerned tones, “Before you make a final decision about hiring her, you should really take a look at her transcripts …”
I’m reminded of this when I see comments in the press and on social media questioning Kamala Harris performance as vice president and pointing to poll numbers to suggest that she’s not popular with Democrats or the American public and, thus, should be replaced on the ticket.
Because this argument sounded odd and unfamiliar to me, I decided to go back and look at Biden’s poll numbers at this stage of his vice presidency to compare them with Vice President Harris’.
And you know what? I couldn’t find any. Zip. Because, until recently, it was not a common thing to conduct standalone popularity polls on the vice president. They were just treated as part of the team and the polls focused on the president, not the VP. Perhaps there are some polls out there from that period that I didn’t find, but if there are, they weren’t very prevalent and were very few and far between.
And they definitely weren’t the subject of article after article and constant chatter about whether he should be replaced on the ticket.
But now that we have a Black female vice president, we are inundated with polling about HER individual popularity. Why do you think that is?
That’s a rhetorical question. I know why. As my own experience shows, this REGULARLY happens when Black people, especially women, move into key positions. We are scrutinized more closely, held to higher standards, measured against new and different criteria, and treated with much more skepticism and analysis than our white male predecessors and colleagues.
I’ve experienced this myself and I’m sure just about any Black woman you ask will tell you the same thing.
So I caution you against putting too much store in Vice President Harris’ popularity polls or claims that she hasn’t been visible or effective enough. Vice Presidents aren’t supposed to be individually popular and they’re not supposed to carry out their own agenda. They are there to do exactly what the president who selected them and placed them by their side wants them to do. And so far, Vice President Harris has done just that and clearly, Joe Biden is pleased with her performance
By all measures previously applied to her white male predecessors, Kamala Harris is doing an outstanding job as vice president. And, just as important, she obviously has Joe Biden’s full support and confidence.
That is more than good enough for me. If it’s not good enough for you, I suggest you take a moment to ask yourself why you’re expecting the first Black female vice president to produce receipts never demanded from the 48 white men who came before her.
Why are people so upset that abortion is now more difficult or impossible to obtain in some states? After all, any woman can still get an abortion, regardless what state she lives in, if she really wants one. If abortion is illegal in her state, she can simply travel to another where it’s still legal.
Sure, it may be a little harder to go out of state and traveling might cost money she doesn’t have, but it can be done. She should have prepared for this beforehand, either by taking precautions not to get pregnant or by making prior arrangements to travel out of state for an abortion in the event that she did.
Right?
Of course, I’m being facetious.
But I’m presenting this argument in this way to show the fallacy of some of the defenses for requiring state-issued photo IDs to vote.
Voting is a constitutionally-protected right. Our government should make it as easy as possible for people to exercise their franchise. Yet numerous Republican state legislatures are putting up obstacles clearly intended to make it more difficult and often impossible for eligible voters to cast a ballot. And the targets for this disenfranchisement are the poor, minorities, students, the elderly, and others who are more likely to vote Democratic, but less likely to have the limited forms of ID that are now being required.
And yet many people who are willing to admit that these measures make it more difficult for eligible voters to cast a ballot, in the next breath claim that it’s no big deal because, after all, they can still vote if they can figure out how to navigate the obstacle course put in front of them.
But the truth is that while it might be eazy-peazy for most people to get the ID these laws require, many Americans just can’t afford them – even $10 or $20 is unmanageable for some people and can make the difference between being able to vote and being disenfranchised. These voter ID laws are modern day versions of the poll tax, literacy tests, and correctly guessing the number of bubbles in a bar of soap that kept Black Americans from voting for decades after Reconstruction and were invalidated by the 1965 Voting Rights Act.
It is really distressing to see people defend these post-Shelby measures, masquerading as “fraud prevention” because “anyone can get a photo ID.”
ANYONE CAN do lots of things in the abstract, but, in fact, it is impossible for them in their real world.
Just as it is ridiculous to insist that abortion restrictions aren’t a problem because there are other ways for women to access abortions, it is also ridiculous to claim that voter ID laws are fine because there are ways for people to get a driver’s license.
So, before trying to justify restrictive voter ID laws because it may be possible for some people to overcome them and still vote, step out of your comfort zone and consider what you’re advocating and the people it affects.
I see the “Let’s replace Biden+Harris in 2024” discussions are picking up again.
Before you so eagerly throw the incumbent President and Vice President under the bus in hopes of chasing after a shiny new thing, consider the following:
If, for some reason Biden decides not to run, he’s not going to anoint a successor so they can just step into the general election in his place. He will announce he’s not running and then get out of the way. Whereupon there will be a knock down dragged out fight for the nomination. And it won’t be pretty.
You wanna see “Democrats in disarray”? Just wait until primary season when a dozen or more contenders jump into the race and begin to tear each other apart.
The money, time, effort and unity that could go into building up Biden-Harris for the general will be soaked up in the first quarter of 2024 in the early primaries as the Democrats battle it out.
And then, when a victor finally emerges – sometime in May or June or maybe even later – and limps, bloodied and battered into a bitter, divided convention, they’re going to have to spend most of their time mending fences, binding wounds, and making concessions to the also-rans to ensure their support.
Wait. There’s more.
When our beat-up nominee straggles into the general election season, they won’t be anything close to a “shiny new thing” anymore. They’ll be damaged goods, dragging the baggage and accusations hung around their neck by their primary opponents that will happily be used against them by the Republican nominee (who will likely have been chosen months before and has been doing a number on them since then).
And what are they going to run on? Their record as a Senator or Congressperson or Governor? They sure can’t run on Biden’s successful record because, guess what? That’s BIDEN’s record, not theirs. And Biden isn’t running because he’s too old or something.
Nah … They have to run on their own record. And no one who would run in Biden’s place has a record that comes anywhere close to his. So good luck with that.
And let’s not even talk about the power of incumbency.
No, let’s do talk about the power of incumbency.
That awesome power would vanish if Biden steps aside. Not being the incumbent, the new candidate can’t use it – the incumbent can’t confer it on someone else – and Biden’s ability to use it would be deeply diminished as soon as he announced he’s not running and becomes a lame duck.
Bottom line: Replacing Biden means squandering valuable time and money, destroying our unity, and losing all the advantages of incumbency.
Replacing Biden would go down as one of the all-time dumbest and short-sighted moves a party has made in recent memory.
Think the long game, people. I am. And that’s why I’m riding with Biden+Harris all the way.
When I was in junior high, our mom treated my sister, brother, and me to a day in New York City during a school break. We started with lunch at Mama Leone’s and then went to see the New York Shakespeare Festival’s production of the hit musical “Two Gentlemen of Verona” at the St. James Theatre.
We loved the songs, the dancing, the melodic dialogue, the racy lyrics. And while my sister fell madly in love with Clifton Davis, who played Valentine, I was mesmerized by Raúl Juliá, the then-unknown actor who played Proteus.
After the show, we went backstage for autographs (you could do that then) and were ushered up steep, narrow metal stairs to the dressing room Raúl and Clifton shared.
Although they didn’t know us from men in the moon, Raúl and Clifton welcomed us in, offered us apple cider, signed our playbills, and chatted with us as if we were all old friends. We were only there a few minutes, but it was amazing for us. And it changed my life.
A few days later, I looked them both up in the Manhattan phone book (because I did stuff like that). Clifton wasn’t there, but Raúl was.
So, I called him.
I was startled when he answered and didn’t know what to say. I babbled something about wanting to thank him for being so nice to us. Instead of sounding annoyed or brushing me off, he said, “Stephanie, it is very nice of you to take the time to thank me. But it was my pleasure.”
I then asked him a few questions about where he was from, how long he’d been acting, did he like performing Shakespeare – and he answered me patiently (Puerto Rico, 10 years, yes). When I ran out of things to ask to him, I thanked him for talking with me and told him I hoped I hadn’t bothered him. He responded, “Not at all. Thank you for coming to the play and for calling me. Take care.”
That may have been the first time I ever heard the phrase “Take care” and it surprised me because the more common term then was a hipper “Take it easy.” “Take care” sounded very old-fashioned and polite. But I liked it, so I started saying it, too. Still do.
A few months later, I decided to call Raúl again. As before, he was very kind and patient. He told me he would soon leave “Two Gentlemen” to star in a new musical about a garbageman in space called “Via Galactica.” I told him that I was reading Shakespeare plays and enjoying them, which he encouraged me to continue doing. He suggested I read them out loud so that I could really hear the music of the language. And I did.
My mother worked, my father traveled frequently, and my sister was away at school, so I was often at home alone after school. Reading Shakespeare out loud turned out to be a wonderful way to pass the time.
I thought it would be fun to try to memorize a Shakespeare play and chose “Two Gentlemen of Verona” because I was familiar with it and I knew the songs from the original cast album. It took me weeks of reading and repeating – on the school bus, during study hall, at home after school, in bed before going to sleep, but I managed to do it.
And once I was – as we theatre people say, “off book,” I put it to use. After school, I’d move the coffee table out of the way and perform the play from start to finish. Mind you, I didn’t just recite the lines. I PERFORMED – all the parts, complete with songs and choreography. I was great.
A few months later, “Via Galactica” opened and, while Raúl’s reviews were generally good, the show turned out to be the biggest flop in Broadway history up to that time. I was devastated and was furious with the critics for doing Raúl like that. I even wrote one of them a rather nasty letter berating him for not understanding true art.
Fortunately, my father’s administrative assistant, who was a surrogate mother to me, had gotten tickets for the first weekend after the opening – just in time, it turned out, since that was the day the beleaguered show was closing. I don’t know what the other 100 or so people in the cavernous theater thought of it, but I LOVED the play. And, unsurprisingly, I thought Raul was brilliant in it.
When I went backstage, I found Raúl sitting in a swivel chair, still in his silver lamé spacesuit costume as someone carefully removed his blue face makeup and Merel Poloway, his then-girlfriend, later his wife, curled up on the sofa reading a book.
He looked tired and a little sad.
I told him that I didn’t care what anyone said, the show was WONDERFUL.“Why can’t they keep it open and let word of mouth build an audience?”
He explained that it cost nearly a million dollars a week to run the play and it was losing too much money to keep open.
He asked me what I’d been up to since he last saw me and I proudly told him that I had memorized “Two Gentlemen of Verona.” His eyes widened and he leaned forward in his chair, “The WHOLE PLAY?”
Yes.
“I don’t even know the whole play. Show me.”
Whereupon, I proceeded to recite:
“O, hateful hands, to tear such loving words! Injurious wasps, to feed on such sweet honey and kill the bees that yield it with your stings. I’ll kiss each several paper for amends.” (I’m pleased to report that I just typed this from memory …)
“Oh, my God, Stephanie! That is FANTASTIC!” he exclaimed, laughing. Merel looked up and smiled.
We talked for a little while longer and then I left him to continue the slow process of undoing his hair and makeup, noting that he winced a little as the show’s hairdresser started to remove the glued-on white wig.
“Take care, Stephanie” he called after me.
Over the next several months I continued to scour the papers for mentions of him to clip carefully and add to the scrapbooks I’d started. I named my goldfish Gabriel Finn after Raúl’s “Via Galactica” character (get it?).
After a year or so, I decided to call Raúl again. When he answered, I said, “I don’t know if you remember me.” He said, “Of COURSE, I remember you, Stephanie! How ARE you?”
I told him I hadn’t memorized any more Shakespeare plays, but I was active in my junior high school’s experimental theatre group. He told me he was rehearsing for a small play, “The Emperor of Late Night Radio,” at Joseph Papp’s Public Theatre.
My best friend Karen and I decided we would go to the play and talked The Good Judge into going to theatre one evening after work to buy tickets for us. The date we picked to go was Saturday, March 9, Raúl’s birthday.
The night before the show, we baked Raúl a birthday cake and composed a lovely poem to write on it:
“You are the best actor it’s true. We certainly admire you. You seem to have a certain way of brightening up a matinee”
That was just the first verse. There were several more. But at the last moment, we discovered that, having baked a normal sized layer cake, not an industrial-sized sheet, there was only room for the first line, so that’s all it got.
We also had an icing mishap that turned the icing a strange shade of blue, but didn’t have time to redo it. So, the next morning we headed to NYC on the bus with our blue cake.
Well, WE headed to NYC on the bus, but the cake wasn’t with us. Karen’s father wanted to drive us into the city, but we insisted that we were old enough to ride the bus by ourselves. But since we realized we might have difficulty riding the bus AND carrying the blue cake, we rode the bus with Karen’s father following closely behind in his car, the cake riding along in the passenger seat.
We enjoyed the offbeat play and afterward, took the cake backstage to Raúl. He said it looked delicious, but we never actually saw him eat it, so I don’t know what became of our blue cake with the half-baked poem.
Over the next few years, as Raúl’s profile rose and he appeared on Broadway more regularly, I went to see him whenever possible. During my senior year, our high school class watched him star in The Cherry Orchard. After the show, he came outside to say hello to the class and went out of his way to make sure they knew we were friends, pretty heady stuff for a teenager.
After spending 10 minutes or so talking to my classmates and answering questions, he said goodnight and gave me a big hug. As he walked away, heading for the subway home, he turned back toward us, held his hand to his ear and mimicked a telephone with his thumb and pinkie and said, “Call me!” Life really couldn’t get any better than that.
I didn’t see Raúl again for many years. I graduated high school, went off to college (where his iconic Threepenny Opera poster hung in my dorm room), finished law school and became a lawyer and law professor. As I matured, my obsession with Raúl subsided, but I always followed his career closely, never missed seeing his films, and took great pride in telling people I was his very first fan. I stopped calling him, but every year, sent him a birthday card.
Years later, when I heard Raúl would tour in “Man of La Mancha” before taking the show to Broadway, I made a point of going to see a matinee performance in Pittsburgh. It was his birthday, 30 years ago today.
It was very different than those long ago days in New York when I could just waltz backstage. This time, after the show, there was a crowd of people at the stage door waiting for him, but the stage manager told us he wasn’t likely to come out before the evening performance. So, I left the birthday card I’d brought, asking that he deliver it to Raúl, waited a few more minutes, just in case, but then left when it was clear I wouldn’t see him.
As I headed up the street, a woman rushed out and shouted for me to stop. “Are you Stephanie? Raúl asked for you to wait. He wants to see you.” I went back into the theatre with her and waited.
A few minutes later, Raúl came down. When he saw me, his face lit up, he hugged me and said, “Stephanie! It is so good to see you! You ALWAYS remember my birthday!”
He said he was going back to his hotel and invited me to walk with him. We came out onto the sidewalk together and I assumed he would be mobbed by the crowd. But, oddly, although he made no effort to disguise his identity, no one recognized him. He walked right through clutch of people, softly saying “excuse me, excuse me” every few steps as they moved out of his way and continued watching the stage door for Raúl Juliá to emerge.
For the next half hour, Raúl and I walked and talked. He told me about his two sons and asked me about my life. I told him what I was doing, about my work as a lawyer and law professor, and my involvement with Bill Clinton’s presidential campaign.
I also told him how much his kindness had meant to me as a young, insecure, quirky girl and how his encouragement helped bolster my courage to pursue interests that made other kids think I was strange but helped keep me focused and out of the trouble that plagued and tripped up many of the kids who thought I was so strange.
“I’m so proud of you! I always thought you were special,” he beamed. “Even as a child, you had such a spark.”
When we arrived at his hotel, he hugged me goodbye and said, “Thank you for being such a good friend for so many years.”
And as he walked away, he turned and said, “Take care.”
I never saw or talked to him again. Less than three years later he was gone.
But not a day goes by that I don’t think of Raúl Juliá, the man with the kind, expressive eyes, sweet smile, musical voice, contagious, throaty laugh, and a heart large enough to hold in it an odd girl with more nerve than sense who called him up one day because she found his name in the New York phonebook.
So, Raúl, today, on your 82nd birthday, 50 years after we first met and 30 years to the day after I last laid eyes on you, I remember you, as always, and thank you for being who you were and still are to me.
