Anarchist Jurisdictions

Five Things You Need to Read Today

Editor’s Note: I’ll be doing a Zoom Meetup with my friend Shrikant Rangnekar Monday night at 9:00 PM about the upcoming election and particularly about Donald Trump’s recent comments on mail-in voting and the peaceful transition power (expanding on my comments in Item #4 below). Please join us.—RWT

1. The Zero at the Meeting Point of Opposing Forces

I mentioned in the last edition how Donald Trump claims he will use the TikTok buyout deal to create a $5 billion fund for “patriotic education.” It is outrageous, of course, that he is boasting about abusing executive power to shake down private companies for his own political ends, even if those ends are something we might approve of (though probably not). It’s also outrageous because it’s a lie intended to gull his supporters, and none of that money will ever show up for the purpose Trump declared.

But it turns out the deal doesn’t address the actual supposed national security concerns that motivated the forced sale of TikTok in the first place. The best explanation I’ve found on this is from The Bulwark’s Jonathan Last—but it’s from his newsletter that is (inevitably) disappearing behind a paywall.

Far be it from me to complain. This newsletter is paywalled, and for once I’ve found myself ahead of the curve. For a long time, I’ve been saying that information doesn’t want to be free, it wants to get paid—and we’re seeing a new era of subscription-based online publications. The Bulwark has a lot of good material (though you don’t have to pay to read any of my articles there), so after you’re done renewing your subscription to The Tracinski Letter, you might considering signing up for what they’re calling Bulwark+.

In the meantime, I’ll just quote a short section from Last on this TikTok deal.

The first danger is that TikTok is gobbling up the private information of US citizens. It can do whatever it wants with that information. If the Chinese government asks for it, TikTok will hand it over.

The second danger is that TikTok surfaces—or hides—videos according to its proprietary algorithm. If the Chinese government decides that it wants TikTok to only show American users videos in which someone declares that, for instance, the results of the 2020 election are illegitimate, then that is what TikTok will do. Or, if the Chinese government forbids TikTok from showing videos in which users say that China is abusing human rights, then TikTok will suppress those videos.

In other words, TikTok is a giant propaganda cannon which is ultimately controlled by an authoritarian country with strategic interests opposed to our own.

And this second danger far, far outweighs the first. Allowing TikTok to operate in this way would not be all that different than the FCC giving a broadcast license to the Russian government.

Which is why I said it was good that Trump was forcing the sale of TikTok.

But in the end, the joke is on me. Because the TikTok ‘sale’ Trump just blessed only addresses the first problem—user data security—while entirely side-stepping the biggest problem—giving the ChiComs the power to determine what information this massive platform shows Americans.

This “sale” to Oracle and Walmart gives the American companies “ownership” of the user data, but not the TikTok algorithm. Which remains entirely under the control of the Chinese.

Last links to speculation (at yet another paywalled newsletter—information wants to get paid!) that the only actual rationale for the deal is that it benefits Oracle and its CEO, Larry Ellison, who is a major Trump donor.

It’s hard to see any other angle from which the deal makes sense, but as with many things in the Trump administration, perhaps the explanation is precisely that it does not make sense, that it is the product of random forces pulling in random directions.

2. The Dogma Lives Loudly

The TikTok deal—whether corrupt or merely botched—is not an issue most voters understand or are going to care about. Certainly not with an open seat on the Supreme Court, which is what will dominate the news for the next few weeks.

I say “for the next few weeks” because this is not an issue that will be decided by the upcoming election. Barring unforeseen factors, it will be decided before then. It will be decided because the Constitution gives the president the power to appoint a Supreme Court justice, and it gives the Senate the power to confirm that appointment—and all other rules of custom or precedent or fairness are not binding.

Sure, four years ago, Senate Majority Leader Mitch McConnell refused even to consider President Obama’s appointment to the Supreme Court, leaving it open until Trump could make his own appointment, and he hatched a so-called “McConnell Rule” to explain how this was based on some kind of high-minded principle instead of being a raw power play. But I really hope you didn’t believe that claim.

The only thing stopping Mitch McConnell from pushing through Trump’s nominee this time around is the prospect that he will look like a giant hypocrite—and believe me when I say that this will not even slow him down.

As for the Democrats—look, this is the breaks from losing elections. If they don’t like it, they should try not losing elections in the future. In this case, they are paying the price for the Tea Party movement, which took away the strong Senate majority they enjoyed in 2009, and for Hillary Clinton’s loss in 2016. In 2015, a lot of people were urging Ruth Bader Ginsburg to retire from the court so that her successor could be chosen by Barack Obama. That would have been the safe thing to do. But Ginsburg chose to wait, according to some reports, so that her successor could be chosen by the first female president, Hillary Clinton. It didn’t work out that way, and Ginsburg’s health couldn’t hold out until Trump left office.

Donald Trump’s election was a highly unlikely and unpredictable phenomenon that upset many people’s plans.

So I think we can regard as a done deal Donald Trump’s successful appointment of her successor, which will produce a 6-3 conservative majority on the Supreme Court and make Brett Kavanaugh—oh, the irony—into the court’s ideological swing vote.

Trump’s appointee is Amy Coney Barrett. She is described as the heir to Antonin Scalia, the conservative justice for whom she once clerked, and about whom she said, “His judicial philosophy is mine, too.” We could do a lot worse.

But religious conservatives are overjoyed because she is a devout Catholic. Barrett’s selection was sealed, really, by Democratic Senator Dianne Feinstein, who grilled her with this question in an appeals court confirmation hearing in 2017:

Why is it that so many of us on this side have this very uncomfortable feeling that, you know, dogma and law are two different things? And I think whatever a religion is, it has its own dogma. The law is totally different, and I think, in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.

Barrett’s response (not directly to Feinstein, but to another Senator asking about the same issue) was reassuring.

“It is never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law,” Barrett told then-Senate Judiciary Committee Chairman Chuck Grassley of Iowa in 2017, adding, “if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the case rather than what the law requires.” Barrett pointed out that she had no problem working on death penalty appeals in Scalia’s office and argued, “In the rare circumstance that might ever arise—I can’t imagine one sitting here now—where I felt that I head some conscientious objection to the law, I would recuse.”

What is not so reassuring is that Feinstein’s comment instantly made Barrett a hero to the religious right, who hope that religious dogma does indeed live loudly in her. They even made it into a T-shirt. Their hope, of course, is that she will provide the vote that will allow the Supreme Court to overturn Roe v. Wade and clear the way for state-level bans on abortion.

Yet it is the Supreme Court’s function to disappoint. Each side hopes or fears that the court will provide the decisive action that will impose a broad political agenda, bypassing the need to win ordinary political contests. But it rarely does so.

On this point, I recommend David French, who writes on this from a somewhat different perspective, in answer to attacks from his right, from people who insist that if he doesn’t support Donald Trump he will “have the blood of dead unborn children on your hands when you face judgment.” (This was a response to David’s response to one of my tweets; it’s a charge that has a whole lot more traction with him than it does with me.) Here’s his argument.

Decades of data and decades of legal, political, and cultural developments have combined to teach us a few, simple realities about abortion in the United States:

1. Presidents have been irrelevant to the abortion rate;

2. Judges have been forces of stability, not change, in abortion law;

3. State legislatures have had more influence on abortion than Congress;

4. Even if Roe is overturned, abortion will be mostly unchanged in the US; and

5. The pro-life movement has an enormous cultural advantage…. [W]hile many millions of Americans are hazy about the politics and morality of abortion, it’s apparent they have a bias about the practice of abortion. In their own lives, pregnancies are both increasingly rare and increasingly precious, and thus abortion is in steady decline, no matter who sits in the Oval Office.

In short—at least, this is how I would put it—birth control has made abortion increasingly obsolete. For our present purposes, the most important point is that the Supreme Court is actually quite unlikely to overturn Roe v. Wade any time soon. Here is David’s case for that.

How many of the current Supreme Court justices have recently and unequivocally stated that Roe v. Wade and Planned Parenthood v. Casey (the two cases securing a constitutional right to an abortion) are bad law? Exactly one out of nine. It’s George H.W. Bush appointee Clarence Thomas.

The rest just voted to apply some variant of the Casey undue burden standard to a Louisiana statute….

As Carrie Severino recently noted, even justices David Souter, Anthony Kennedy, and Sandra Day O’Connor critiqued Roe before they joined the court. Souter filed a brief that called abortion “the killing of unborn children.” Kennedy once called Roe the “Dred Scott of our time.” O’Connor wrote that the court’s abortion decisions “have already worked a major distortion in the Court’s constitutional jurisprudence.”

Each of those justices joined the majority in Casey to preserve the right to an abortion. For almost three decades, the Supreme Court lesson has been clear—put not your trust in judges to rescue America from the moral stain of abortion.

I link to these arguments not to indicate whether you should or should not support Barrett’s appointment to the court, because that doesn’t matter. It’s almost certainly going to happen, and it will happen soon. The point is to put this in perspective and tamp down any fears or hopes you have for what a 6-3 conservative majority is likely to accomplish.

As for how this affects the presidential election, I view it as weakening the case for Trump, because after this, the oldest conservative justice on the court will be Clarence Thomas, who is 72 year old and actuarially unlikely to retire or die in the next four or even eight years. The oldest of the “liberals” is Stephen Breyer at 82, but if Joe Biden appoints his replacement, this would simply preserve the ideological balance of the court.

It’s not just conservatives who have been tempted by an excessive reliance on the Supreme Court, and some on the left are flipping out over the prospect of a 5-4 conservative majority becoming a 6-3 majority.

So we’re hearing some noise about term-limiting the court (which would require a constitutional amendment, which isn’t going to happen), or expanding the court next year so they can pack it. This is something that should be taken seriously, but it’s also a step Democrats might be very reluctant to take in the cold light of day. Back in the primaries, Joe Biden named the reason.

“I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he told Iowa Starting Line early in the primary race last year. A few months later, during a Democratic primary debate, Biden once again rejected the idea. “I would not get into court packing,” Biden said. “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”

While he abjured court-packing during the primaries, Joe Biden has pointedly avoided saying anything about it recently, presumably to avoid angering the left wing of his party in the weeks before an election. It is what we would expect from the Man in the Middle.

It can get even worse. What happens if Donald Trump wins re-election, after Democrats have legitimized court-packing? Here’s how one Democrat describes that prospect.

“There was a discussion of, ‘OK, if we talk through this and lay out the things we are willing to do, what happens if we lose?’ the source, a Senate Democratic aide, said. “That’s an obvious concern because we’ve just given [Senate Majority Leader Mitch] McConnell the basis and moral authority to go do it himself. Suddenly, it’s an eight-three court.”

This is the basic concept of Cold War strategic deterrence: mutually assured destruction. It is a strange game where the only winning move is not to play.

People are having a hard time right now remembering that power changes hands frequently in our political system, and that this is why we have rules and norms for everyone’s protection.

3. Anarchist Jurisdictions, Part 1

The Justice Department just designated three cities—New York, Portland, and Seattle—as “anarchist jurisdictions,” “jurisdictions permitting violence and destruction of property,” because of their inadequate responses to this year’s riots. There’s not much the Department of Justice can do about it, given our system of federalism, except to threaten to withhold some federal funding.

The designation produced some amusing headlines, like “Local Anarchists Miffed By Trump’s Designation Of NYC As Anarchist Jurisdiction.” Among the miffed anarchists are “a self-proclaimed anarchist and adjunct marketing professor at NYU.” I’m sorry, but you can be one or the other of these things—an anarchist, or an adjunct marketing professor—but not both.

It’s clear that Donald Trump basically wants to run against Portland, and you can see why. So some on the left are beginning to noodle about how to deal with the Portland problem.

That roiling unrest is presenting an unprecedented challenge for local officials who are struggling to contain the violence—as well as for national Democratic leadership that is struggling to figure out an effective response to an intensely local crisis that has broader political implications, all while the president hectors them as weak and incapable.

“Looking at what’s on the ground right now, I think Portland in a lot of respects represents a worst-case scenario, in terms not of how bad it could possibly get, but how bad it is now,” Mark Pitcavage, who researches domestic political extremism with the Anti-Defamation League, told POLITICO. “It’s hard to be optimistic in the near- or medium-term for Portland.”

Portland’s homegrown clash of extremists on both sides has become so entrenched it is creating a gravitational pull on others from around the country. Left-wing forces, including antifa and others, insist that “Riots and looting” are “a legitimate and profound form of protest,” as a post on one of the popular far-left regional Facebook pages encouraging violence recently read. Meanwhile, the pro-Trump group Patriot Prayer, headquartered north of the city, are eager to confront the opposition.

“They go there to provoke physical confrontation, to try to bait people into street fighting,” Daryl Johnson, a former Department of Homeland Security official focused on domestic extremism, said. “Now people are transiting the country, learning from people in Portland. People may have traveled to Portland to get some battle experience, so to speak.”

And that expansion has led to escalation, especially when it comes to the weapons now being used. “We’re starting to see the beginnings of this violence escalating from throwing objects…to them now pointing guns at each other,” Johnson said. Late last month, an antifa supporter named Michael Reinoehl shot and killed Aaron Danielson, a prominent Patriot Prayer member.

Unfortunately, this piece doesn’t offer much in terms of solutions. I have a feeling Portland might need a new round of local elections, in which the incumbents may find that they were so worried about appeasing the far left that they forgot to provide the most basic municipal service—protection from violence—to the rest of their constituents.

On the national level, I’ve been saying that Joe Biden needs an extended Sister Souljah moment, and I’ve seen that echoed with a more specific suggestion for who deserves to be cast in the role of Sister Souljah: Seattle’s Kshama Sawant.

One of the cities worst affected by a summer of chaos was Seattle, where Police Chief Carmen Best—a 30-year veteran of the force and its first Black woman leader—resigned earlier this month after the city council moved to strip her department of 100 officers and slash her salary by 40%. The Seattle chapter of BLM, with whom Best had developed a positive working relationship during her tenure, decried the top cop’s departure as a “loss” and the council’s effort to undercut her as one that “prioritize[ed] performative action that solely suggests the appearance of change.”

The main driver behind the effort to expel Seattle’s first Black woman police chief was City Councilor Kshama Sawant. A member of the Socialist Alternative party and supporter of Bernie Sanders in this year’s Democratic presidential primary, Sawant was one of the most prominent public officials to embrace the Capitol Hill Organized Protest (CHOP) zone, Seattle’s brief experiment in police-free, utopian living—that Seattle’s Mayor Jenny Durkan originally defended as having a “block party atmosphere” and compared to “the Summer of Love”—and whose signal legacy was the murder of Black teenagers. “Two African American men are dead, at a place where they claim to be working for Black Lives Matter,” Best said at the time, lamenting how the city’s politicians were preventing her from doing her job. “But they’re gone, they’re dead now.”

Kshama Sawant enunciated a different view. “Though we await confirmation of the details of the killing, there are indications that this may have been a right-wing attack,” she said in a statement after the first shooting, which authorities have since pinned on another Black teenager. Alongside President Donald Trump, Sawant alleged, Mayor Jenny Durkan and Chief Best also “share responsibility for having portrayed our protest movement as violent.” Best and her stormtroopers better keep away, the city councilor warned, for the denizens of CHOP had discovered a new and better way of governing humanity. “Elected committees of self defense have historically played vital roles during general strikes, occupations, and in mass movements,” she declared. After the second murder of a young Black man in the “peaceful Capitol Hill occupation” in as many weeks, Sawant blamed the killing on “capitalism’s brutality & endemic violence.”…

Herewith, then, a modest proposal for the man seeking to defeat Donald Trump: Direct your campaign plane to Seattle, call a press conference with Carmen Best at your side, and unreservedly denounce Kshama Sawant in a speech to the people of Seattle, and to the rest of us. Show America that the choices we face are not between hateful, deranged ideologues on the left and the hateful, obsessive president in the White House. Show us Carmen Best, a Black cop who did her best to protect the people of her city only to be kneecapped, humiliated, and defunded by a Marxist ideologue who couldn’t care less when Black teenagers are murdered.

This would be great, but it is also unlikely to happen. Joe Biden enjoys a lead in the polls just comfortable enough that he has a much greater interest in sitting back and letting Donald Trump set himself on fire, which he does with regularity (see below). And precisely the reason this article cites for why a Kshama Sawant Moment is necessary—the fact that she enjoys such strong “air support” from the media and big cultural institutions—makes it less likely for us to find a politician ready to take on that kind of heat.

But we’re going to need to be ready to oppose the forces of chaos, because for all his bluster about law and order, Donald Trump is working to make this possibly the most chaotic election since 1800.

4. Anarchist Jurisdictions, Part 2

The White House is looking more and more like another anarchist jurisdiction, and everyone’s worst fears were realized when President Trump was asked whether he would guarantee a peaceful transition of power, and he couldn’t bring himself to say, “Yes.”

Here’s the story from the guy who asked that question.

Barton Gellman’s recent story in the Atlantic, published online on Wednesday, brought renewed attention to a concern that has bubbled through the press corps for months: What would President Donald Trump do if he lost the November election? Would he concede in a gentlemanly fashion? Would he scream rant and rave? Would he slink away in the middle of the night?

With all of the speculation, the question deserved to be asked directly to the man. There have been enough things said behind his back and endless guessing and gaming, but I was unaware of anyone giving Trump the chance to speak on the issue himself—so why not ask him?

Wednesday during a press conference in the Brady Briefing Room, President Trump called on me and I asked him if he would endorse a peaceful transfer of power “win, lose, or draw.” He wouldn’t give an unqualified yes to that question. He also said if you eliminate the ballots (I suppose meaning mail-in ballots) there would be no transition.

Here’s the full exchange:

Q: Mr. President, real quickly: Win, lose, or draw in this election, will you commit here, today, for a peaceful transferal of power after the election? And there has been rioting in Louisville. There’s been rioting in many cities across this country—red and—your so-called red and blue states. Will you commit to making sure that there is a peaceful transferal of power after the election?

The President: Well, we’re going to have to see what happens. You know that. I’ve been complaining very strongly about the ballots. And the ballots are a disaster…. We want to have—get rid of the ballots and you’ll have a very trans—we’ll have a very peaceful—there won’t be a transfer, frankly; there’ll be a continuation.

The ballots are out of control. You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else.

Let’s repeat this: When you are the president of the United States, and someone asks whether you will commit to a peaceful transition of power, you say, “Yes.” You can add addendums and qualifications later, you can reserve the right to ask for a recount or wait until the results are properly certified. But you begin with a simple and unambiguous “yes.”

Instead, Trump talked about an issue he’s been harping for a while now: sowing doubts about the legitimacy of mail-in ballots. Such ballots have been in use for a long time without any particular difficulty, and if there were ever a time to encourage their use, it is in the middle of a pandemic, while we are anticipating a wave of new infections in the Fall. To instead describe such ballots as inherently fraudulent is a gratuitous and unfounded attempt to put the outcome of the election in doubt and throw the country into chaos.

That takes us back to the article in The Atlantic that inspired this question, which lays out the election nightmare scenario.

A lot of people, including Joe Biden, the Democratic Party nominee, have mis­conceived the nature of the threat. They frame it as a concern, unthinkable for presidents past, that Trump might refuse to vacate the Oval Office if he loses. They generally conclude, as Biden has, that in that event the proper authorities “will escort him from the White House with great dispatch.”

The worst case, however, is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him….

Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice….

The worst case for an orderly count is also considered by some election modelers the likeliest: that Trump will jump ahead on Election Night, based on in-person returns, but his lead will slowly give way to a Biden victory as mail-in votes are tabulated. Josh Mendelsohn, the CEO of the Democratic data-modeling firm Hawkfish, calls this scenario “the red mirage.”…

According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires….

The Trump-campaign legal adviser I spoke with told me the push to appoint electors would be framed in terms of protecting the people’s will. Once committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended….

Republicans control both legislative chambers in the six most closely contested battleground states.

It is very possible none of this will come to pass—but if it does, it is a recipe for absolute chaos. By repeatedly and baselessly denouncing mail-in ballots as fraudulent, Trump is deliberately laying the groundwork for it. His comments when directly asked about a peaceful transition, in which he focused entirely on attempting to discredit mail-in ballots, is a straightforward admission that this is the outcome he is planning for. In short, he is making plans to steal the next presidential election, right out in the open.

A lot of people on the right, and even some Objectivists, have tried to get me to find something acceptable about Trump, or at least to regard the left and the Democratic Party as scarier and more dangerous. But every time I try to do it, Donald Trump does or says something that just makes that conclusion impossible. This is merely the latest and most definitive example.

5. Life, Uh, Finds a Way

I’ve been showing my boys a lot of classic movies from my younger days. We just got around to Jurassic Park, and I was reminded that life, uh, finds a way.

Has it found a way on Venus? One of the most interesting bits of science news recently is the detection of a gas associated with life in the atmosphere of Venus. I’ll link to a nicely done bit of reporting that doesn’t overhype the findings and puts them in the proper context. Here’s the essential story.

It’s an extraordinary possibility—the idea that living organisms are floating in the clouds of Planet Venus. But this is what astronomers are now considering after detecting a gas in the atmosphere they can’t explain.

That gas is phosphine—a molecule made up of one phosphorus atom and three hydrogen atoms. On Earth, phosphine is associated with life, with microbes living in the guts of animals like penguins, or in oxygen-poor environments such as swamps….

Given everything we know about Venus and the conditions that exist there, no-one has yet been able to describe an abiotic pathway to phosphine, not in the quantities that have been detected. This means a life source deserves consideration.

“Through my whole career I have been interested in the search for life elsewhere in the universe, so I’m just blown away that this is even possible,” Prof Greaves said. “But, yes, we are genuinely encouraging other people to tell us what we might have missed. Our paper and data are open access; this is how science works.”

On the one hand, there has long been speculation that Venus’s relatively temperate upper atmosphere—as opposed to its hellish surface—could potentially support life, at least at the microbial level. On the other hand, there’s a lot we still don’t understand about the atmospheric chemistry of Venus, so it is very possible there is some other explanation.

The obvious next step is to send a new probe to Venus, not to land on its surface but to hang around in the atmosphere—perhaps a dirigible rover.

This has no wider philosophical significance, except perhaps one point: the massive resilience of life. As one astrobiologist puts it, “If life can survive in the upper cloud-decks of Venus—that’s very illuminating, because it means maybe life is very common in our galaxy as a whole. Maybe life doesn’t need very Earth-like planets and could survive on other, hellishly-hot, Venus-like planets across the Milky Way.”

That perspective gives us a little more confidence in the prospects for life back here on Earth.—RWT

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