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Merrick Garland’s Supreme Court roll-out made us tear up a little bit.

President Obama’s announcement of Garland’s nomination was all about presenting Garland as an impeccable candidate whose record and personal temperament would make him impossible for the Republican Senate to block in good faith. 

But it was Garland’s own speech that made the most persuasive case. Obama had set him up as a good and likable man, and Garland demonstrated as much. Holding back tears, Garland told the crowd that, “This is the greatest honor of my life, other than Lynn agreeing to marry me 28 years ago.”

A life of public service is as much a gift to the person who serves than it is to the person he is serving,” Garland continued. He recounted how his family fled anti-Semitism in Eastern Europe to make a better life in Chicago, where his father ran a small business and his mother worked with the PTA. It’s a quintessential American immigrant story, with Garland’s nomination a triumphant embodiment of the American Dream. Garland’s personal history suggests that hard work, virtue, and merit can take you all the way to a seat on the highest court in the land. 

“I know that my mother is watching this on television and crying her eyes out,” Garland said, and she wasn’t the only one. 

June 22, 2018

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Charles Krauthammer was a crucial New Republic voice for nearly a quarter century. RIP.

When Krauthammer wrote his first article for The New Republic in 1979, he was a Jimmy Carter–supporting liberal. When he wrote his last piece in 2003, he was one of America’s most prominent conservative columnists, the most forceful advocate for George W. Bush’s war in Iraq and the larger strategy of democracy promotion in the Middle East. Over that time, Krauthammer went through a dramatic political change—one that was characteristic of his generation, but which also marked an important chapter in the history of this magazine and of American liberalism.

Krauthammer became an editor at TNR in 1981, at the start of a decade where the magazine was often at war with itself. The ’80s weren’t just the era of Ronald Reagan and Margaret Thatcher, but of the reinvention of liberalism under the pressures of a now-dominant right. TNR, under the alternating tenure of Michael Kinsley and Hendrik Hertzberg, was a forum where competing strands of the liberalism battled for dominance. One faction of the magazine, led by Hertzberg, was robustly social democratic and distrustful of military adventurism. The rival faction, whose most eloquent voice was Krauthammer, was moving away from Cold War liberalism and toward a nascent neoconservatism.

Foreign policy was Krauthammer’s dominant passion, and the struggle against Soviet Communism drew him away from his youthful liberalism. Although he worked as a speechwriter for Walter Mondale in 1980, he came to distrust the Democrats as too dovish. After the Cold War, he continued to believe that American global hegemony was crucial for creating a better world. His 1991 essay “The Lonely Superpower” is critical for understanding the worldview of the American foreign policy elite in the years to come. With the clarity and force that graced all his writing, Krauthammer laid out a case for American foreign policy activism during a “unipolar moment”:

I would much have preferred that after the long twilight struggle America enjoy the respite from toil and danger to which it is richly entitled. Alas, there is no end to toil, and it is not just naive but dangerous to pretend otherwise. Even after the defeat of the Soviet threat, we face a highly dangerous new world from which there is no escape. Our best hope for safety in such times, as in difficult times past, is in American strength and will: the strength to recognize the unipolar world and the will to lead it.

Given his belief in America’s responsibility to dominate the globe, it was not surprising that he would be one of the most influential advocates for the post-9/11 attempt to remake the Middle East. He staked his considerable credibility on Saddam Hussein’s Iraq having weapons of mass destruction.

Since the rise of Donald Trump in 2016, much of the Republican Party has rejected Krauthammer’s brand of neoconservate internationalism. Where he wanted America to take up the burden of global leadership, Trump has argued for unilateral nationalism. This provoked the final political shift in Krauthammer’s life, when he refused to vote for the Republican nominee.*

There’s much in Krauthammer’s life to argue with, but no denying the ample testimonies of his personal kindness nor his bravery in rebuilding his life after a swimming-pool accident left him paralyzed him below the waist when he was 22 years old.

He was equally brave in facing death. Rest in peace, Charles Krauthammer.


*This article originally misstated that Krauthammer voted for Clinton in 2016. He declared he would vote for a write-in candidate.

June 21, 2018

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The perils of using DNA tests to reunite migrant children with their parents.

Representative Jackie Speier, a Democrat from California, on Thursday called on the genealogy website 23andMe to provide DNA tests to help identify migrant children separated from their parents by the Trump administration. Although well-intentioned, the proposal raises multiple ethical and legal questions.

The Trump administration has separated more than 2,300 migrant kids from their parents so far. Trump signed an executive order on Wednesday that sought to halt the separations, but hasn’t made clear how the government would reunite families it already broke apart. While many separated children are eventually placed in the custody of close family members, others are not. The chaos caused by the separations has raised fears that some children might not be reunited with their parents at all. John Sandweg, a former director of Immigration and Customs Enforcement, told NBC News this week that the administration’s policy “could create thousands of immigrant orphans.”

Using DNA tests to help find those children’s parents might not be as straightforward as it sounds. In April, I wrote about the concerns raised by legal experts when police in California used a commercial genealogy database to track down a suspect in the Golden State Killer case. Catching a serial killer is a worthy goal, but law enforcement might not always use the system for noble ends. Testing can also produce false positives: Investigators on that case first questioned an innocent man who was an apparent match to DNA found at a crime scene.

It’s unclear whether HIPAA, the federal medical-privacy law, would even allow the government to obtain DNA samples from migrant children who can’t give informed consent. And even if the government could lawfully collect the sample, there’s the question of whether it should. Can Americans really trust Donald Trump, who rose to power by demonizing undocumented immigrants, to collect a database of those immigrants’ genetic information?

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In Trump’s America, the ACLU takes a new approach to free speech.

According to a memo leaked to the The Wall Street Journal, the ACLU has begun shifting its stalwart stance on the First Amendment, in recognition of the surge of hate speech that has accompanied the president’s rise to power. “Our position in one area can sometimes present a conflict with our work and goals in another area,” the memo says. “Work to protect speech rights may raise tensions with racial justice, reproductive freedom, or a myriad of other rights, where the content of the speech we seek to protect conflicts with our policies on those matters, and/or otherwise is directed at menacing vulnerable groups or individuals.”

The organization has been grappling with its position on free speech over the past year, after its clients, the white supremacist groups at the “Unite the Right” rally in Charlottesville in August 2017, started the violence that led to the death of Heather Heyer. At the time, the ACLU decided that it would no longer defend armed hate groups, a position this memo solidifies.

While the U.S. continues to be more tolerant of offensive speech than the rest of the world, with 71 percent of Americans believing they should be allowed to say what they want, there are generational differences. Forty percent of millennials, according to a Pew Research Center poll in 2015, think the government should be allowed to prevent speech that is offensive to minority groups.

As The New Republic’s Sarah Jones wrote last year, Trump’s presidency “supports the notion that no law, even when it is enshrined in the Constitution, can alone justify an absolute position on free speech. That position has to be bolstered by cultural norms, including a consensus that the president must not legitimize and amplify the speech of those who openly bear the swastika and believe that other races are inferior to the white race. Free speech isn’t a pure and abstract good. Like all civil liberties, it is shaped by the context in which it occurs.”

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John Oliver joins Winnie the Pooh on Chinese government’s block list.

On Sunday, the host of Last Week Tonight mocked the Chinese government’s internet censorship using Winnie the Poor as an example. Chinese President Xi Jinping seems to dislike comparisons between his physical appearance and that of A.A. Milne’s famous ursine, so a firewall keeps the Chinese people from doing searches about Winnie the Pooh. “Clamping down on Winnie the Pooh comparisons doesn’t exactly project strength,” Oliver quipped.

Now Oliver himself has been added on the block list, since queries for his name also produce no results.

Aside from internet censorship, Oliver needled the Chinese government on a range of human rights abuses, ranging from the treatment of Uighur Muslims to the jailing of dissident Liu Xiaobo.

Oliver also questioned Xi’s removal of term limits for the presidency. “It’s worth knowing that the term limits he had successfully eliminated were put in place for a pretty good reason, specifically to avoid another Mao, under whose regime some horrific things happened in China,” the comedian observed.

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Conservatives tweet that heckling Trump advisors is fascism.

The New York Post reports that White House advisor Stephen Miller became the second Trump administration official to be ridiculed at a Mexican restaurant this week when he dined at Espita Mezcaleria on Wednesday. A fellow customer spotted Miller, one of the chief architects of the family separation policy, and shouted “Hey look guys, whoever thought we’d be in a restaurant with a real-life fascist begging [for] money for new cages?” Miller reportedly “scurried” away from the protester, although he stayed in the restaurant.

On Tuesday, Secretary of Homeland Security Kirstjen Nielsen and a companion were hounded out of the MXDC Cocina Mexicana by jeering protesters, organized by Democratic Socialists of America members, who shouted “shame” and berated her for the policy to tearing migrant children away from parents.

Some conservative pundits have objected to these restaurant tauntings, calling them fascist:

The comparison with fascism is nonsensical. Nielsen and Miller are major agents of the state that are pushing a policy that is traumatizing thousands of children. The protests were a peaceful expression of free speech. It’s noteworthy that the spokesperson for the Department of Homeland Security acknowledged that the protesters had legitimate concerns:

The most heartening fact about the family separation saga is that American civil society has revolted against the policy. There has been a massive public outcry, which has included even from corporations like the major airlines (which are refusing to fly migrant kids separated from their parents). The restaurant heckling is very much part of this resistance from civil society:

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Immigration chaos continues with contradictory reports about “zero tolerance.”

The Washington Post is reporting that the Trump administration will no longer be prosecuting parents who cross the border with children. “We’re suspending prosecutions of adults who are members of family units until ICE (Immigration and Customs Enforcement) can accelerate resource capability to allow us to maintain custody,” an official told The Post.

The administration is returning to the Obama-era policy on border crossing families and suspending “zero tolerance.”

The Washington Post report was immediately contradicted by the Department of Justice:

Given the contradiction between the two reports, it is clear that the Trump administration’s immigration policy remains chaotic and in flux. 

If  “zero tolerance” was suspended, it is only as a stop-gap measure. It does nothing to address the problem of family reunification for those already separated by the policy. Further, it is a temporary measure which could be reversed once the administration has more resources in place to enact a renewed “zero tolerance” push. But the larger story is that the White House has no real policy and different factions are making up rules willy-nilly.

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The Supreme Court’s Wayfair ruling is big for state budgets, bad for e-commerce companies.

Thursday’s decision in South Dakota v. Wayfair will allow state legislatures to force online retailers to collect sales taxes for purchases made within their jurisdiction. It’s a victory for state tax coffers, as well as brick-and-mortar businesses that had cried foul over what they saw as an unfair advantage for internet competitors.

Many online businesses had benefited from the 1992 ruling in Quill v. North Dakota that said states could only collect sales taxes from online merchants that had a physical presence within their borders. The court overturned that decision on constitutional grounds on Thursday. But Justice Anthony Kennedy, writing for a 5-4 majority, said the digital-physical distinction no longer made sense.

Between targeted advertising and instant access to most consumers via any internet-enabled device, a business may be present in a state in a meaningful way without that presence being physical in the traditional sense of the term,” he wrote. “A virtual showroom can show far more inventory, in far more detail, and with greater opportunities for consumer and seller interaction than might be possible for local stores.”

Kennedy made clear that Quill was constitutionally flawed in any event. But he also noted that technological advancements since 1992 made the ruling “all the more egregious and harmful.” When the high court decided Quill, Kennedy observed, fewer than 2 percent of Americans had personal internet access and “the Court could not have envisioned a world in which the world’s largest retailer would be a remote seller,” referring to online-sales giant Amazon.

There’s a tendency to speak about the internet as a separate realm of existence: Users of it are either “offline” in the real world or “online” in the digital world. The Supreme Court’s ruling in Wayfair makes clear that there’s only one world and that the Constitution governs it, at least within the United States. Technology, the medium that links these two worlds, must also play by the same rules.

That perspective could bode well for the defendant in another pending Supreme Court ruling. In Carpenter v. United States, the court is weighing whether police need a warrant before they can obtain a suspect’s historical cell phone location data. That data amounts to a digital footprint of sorts, allowing police to reconstruct a person’s movements with a level of precision that would have been impossible without the digital revolution.

Will the justices apply the Fourth Amendment’s protections in the real world to the digital one? Or will they give law enforcement a special degree of latitude there? A ruling could come as early as Friday.

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Is civility really the problem in modern political discourse?

America is becoming a cruder place, which is causing a fainting fit at the newspaper of record. “Mr. Trump’s coarse discourse increasingly seems to inspire opponents to respond with vituperative words of their own,” Peter Baker and Katie Rogers write in The New York Times. “Whether it be Robert De Niro’s four-letter condemnation at the Tony Awards or a congressional intern who shouted the same word at Mr. Trump when he visited the Capitol this week, the president has generated so much anger among his foes that some are crossing boundaries that he himself shattered long ago.”

The Times article rests on a strange conflation of civility (which is about obeying conventional rules of decorum) with morality. The article notes that Trump won political success as a candidate through his incendiary rhetoric, adding, “Any expectation that he would put the harsh language aside to become more of a moral leader as president has proved illusory.”

But surely Trump’s failure as a “moral leader” have much more to do with his actual policies (such as family separation) than his crude vocabulary. After all, referring to Senator Bob Corker as a “lightweight” (one of the offences that rankles the Times) is mildly impolite. Tearing babies away from their mothers, on the other hand, is truly obscene.

Civility is a set of conventions. Sometimes those conventions lose their meaning and need to be modified or abandoned. The Times article itself illustrates this truth. Part of the Times’ own version of civility is the pose of distance from the competing sides of partisan politics. Thus the Times article argues “both sides” are to blame for the decline of civility.

But to maintain this stance of pseudo-balance, the Times has to draw strained equivalencies. Statements by Trump are equated with comments and actions by celebrities (De Niro, Peter Fonda, Kathy Griffin) and the swearing of a congressional page. The Times’ own code of civility prevents it from properly noting that to the extent civility is in crisis, it’s an issue with only one major political figure. If the Times really wants to defend civility, they need to realize their own codified rules of blaming both sides are out of date.

(Photo credit should read OMAR TORRES/AFP/Getty Images)

Another nightmare report about the treatment of immigrant children.

An investigative report by the Associated Press reveals widespread abuse at Shenandoah Valley Juvenile Center in Virginia, where children as young as 14 claim they were tied to chairs with bags over their heads, “beaten while handcuffed and locked up for long periods in solitary confinement, left nude and shivering in concrete cells.”  

A former child-development specialist told the AP she visited children with broken bones and bruises that they attributed to the guards. One Honduran immigrant, who was 15 years old at the time, recounted in an affidavit: “Whenever they used to restrain me and put me in the chair, they would handcuff me. Strapped me down all the way, from your feet all the way to your chest, you couldn’t really move. ... They have total control over you. They also put a bag over your head. It has little holes; you can see through it. But you feel suffocated with the bag on.”

Kelsey Wong, a program director at the center, told the AP that “youth were being screened as gang-involved individuals. And then when they came into our care, and they were assessed by our clinical and case management staff ... they weren’t necessarily identified as gang-involved individuals.” Many had been accused by U.S. immigration authorities of belonging to violent gangs, like MS-13, whom Trump has called “animals.”

Shenandoah received $4.2 million in government funding last year, enough, the AP claims, to cover two-thirds of the operating costs. Still, children were reportedly given cold food and small portions that left them hungry; some claimed they had never been outside, and multiple accounts in the lawsuit claim staff would jeer at Latino children using racist slurs like “onion head” and “wetback.”

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Faux-populism in Duluth.

Friends and foes alike have labelled President Donald Trump a populist, but the moniker has always fitted him uneasily. Populism comes in many forms, but usually a key component is a mass movement that springs up from ordinary people who try to overturn an established hierarchy. This has been as true of right-wing populism (Father Charles Coughlin and George Wallace) as left-wing populism (William Jennings Bryan, Bernie Sanders).

Trumpism, by contrast, seemed more focused on Trump, specifically, being the one to deliver the promised land (“I alone can fix it,” as he famously said in the 2016 Republican convention). While Trump can mouth the classic populist tropes about a globalist elite undermining the common people, there’s very little space in Trumpism for the masses gaining agency through political action.

Speaking at a rally in Duluth, Minnesota, on Wednesday night, the president made a statement that shed light on the peculiar qualities of his political philosophy. “They always call the other side, and they do this sometime, ‘the elite.’ The elite!” he mocked. “Why are they elite? I have a much better apartment than they do. I’m smarter than they are. I’m richer than they are. I became president and they didn’t. And I am representing the greatest, smartest, most loyal people on earth, the deplorables.”

Unpacking Trump’s statement, it turns out he’s not, as populist heroes traditionally have been, the avatar or even the tribune of the common man. Rather, Trump is the true elite, a caste of one, the übermensch who is smart, rich, and able to become president. His followers, meanwhile, are “the deplorables” who are, pointedly, not elite in Trump’s manner but have their own form of greatness and smartness which is displayed in their willingness to subsume themselves (“the most loyal people on earth”) to Trump.

This is not the creed of populism, but of the strong man with an army of loyal followers. It helps explain why the economic populism Trump occasionally voiced (as with his attacks during the campaign on the banks) has mostly not been enacted. Trump was never selling populism per se but rather a faux-populism that masked a defense of aggrieved privilege, with the selling point being that Trump was the tough guy who could protect the social status quo his followers loved.