Like Sharks in Charge of Water Safety: Elie Mystal and the Supreme Court

Elie Mystal, of the Nation Magazine, is a national treasure. 

He is like a breath of fresh air in the middle of the stale, phony, self-serving, power and celebrity worshiping hosts and commentators appearing regularly on corporate news.

One, just one of the reasons I love him is that he rolls his eyes on national television.  Another reason I love him is that he tells the truth and talks like a regular person.  He doesn’t use ten words with one will do, and he doesn’t surround every statement he makes with a boat load of qualifying phrases.  

He rolls his eyes, he tells the truth, he doesn’t obfuscate because (unlike almost every other person appearing on corporate news) he is not afraid.

The right is not afraid of stealing Supreme Court seats, lying, cheating, rigging elections, subverting justice and a whole host of other things.  The center, however, is a culture of people who are afraid.  They are afraid to see the truth right in front of their faces, afraid to confront depressing and distressing facts, afraid of the very possibility of offending somebody, afraid of being inconvenienced, afraid of not perhaps, maybe not getting some job they haven’t even thought of yet.

I spent almost a decade out of the country.  When I returned, I was astounded to hear a student tell me she couldn’t take an internship at World Wildlife (World Wildlife, not the Communist Party) because she might someday want to apply for a job with the State Department.  This is who we have become.  The right, the Republican party is fighting 24-hours-a-day to establish a Christo-fascist authoritarian government and those in the center are afraid of their shadows.

On Thursday, Nicolle Wallace, MSNBC, spent an entire segment of her program listening to people lionize the members of the January 6 Commission for considering, considering referring Steven Bannon to the Justice Department for criminal contempt.  But, as Eli Mystal pointed out on CNN this morning, the whole process of the referrals to the Justice Department is nothing but theatre.

What every news program and every host should have been pointing out is that the Committee has (but is not using) the right of inherent contempt.  Using this right, the Congress can jail people who don’t abide by subpoenas until they do abide.  They don’t have to refer the matter to the Justice Department and wait for Biden’s (wimp noodle) hatchet man, Merrick Garland to act. 

In addition, inherent contempt means that people like Bannon will be jailed and stay jailed until they provide the information that was subpoenaed.  Going down the criminal contempt path and referring to the Justice Department, assuming Garland will prosecute  (which he will not) and assuming a conviction, only punishes the offender for not cooperating.  It does not secure the information needed. 

So, the House Commission investigating the coup attempt should be shamed and criticized for not taking the path designed to get the information we need.  Instead, they are heralded as heroes, patriots, courageous public servants.  The Nicolle Wallace program last night became a virtual campaign ad for Benie Thompson and the other members.  Not once, did Wallace or any of the members of the panel she assembled tell the American people that what the Commission was doing was a sleight of hand maneuver to look like they were doing something and not doing it.

Similarly, the Commission Biden appointed to study the Supreme Court expansion was “designed to fail.”  As Mystal wrote in April when the commission was formed: “Biden’s choices confirm the worst fears court reformers had about the president: He doesn’t want a solution; he wants an excuse to do nothing.”

Quoting from Eli Mystal’s article IN APRIL:

“Instead of creating a commission of high-minded reformers or bare-knuckle politicos, Biden has created the quintessential government committee that is purposefully designed to accomplish nothing. The “Commission on the Supreme Court” isn’t even allowed to make policy recommendations on what to do about the Supreme Court. It is merely supposed to “study” the issue, which is like hiring a chef to draw pictures of food instead of cooking a meal. When Republicans take power, they don’t commission a book report on what they should do with the courts. They show up to Washington prepared to reshape the judiciary from day one. Biden showed up prepared to read a law review article.”

“Perhaps even more troubling, instead of balancing some of the center-left people on the commission with more, or any, outspoken advocates of court reform, Biden went the other way and put Federalist Society scholars and judges in there to drag the whole thing to the right. I cannot recall the last time a Republican president bothered even to consult a Democratic voice, never mind a genuinely left voice, on how to proceed with a matter related to the Supreme Court. But Democrats continue to act like they need a hall pass from Republicans before they take any action.”

Their inclusion—again, at the expense of some of the individuals who have been actively fighting these people and their conservative takeover of the courts—is insulting.

It’s also a giant waste of time. Donald Trump appointed 226 fire-breathing conservative judges to the federal bench in just four years; we are 20 months away from a midterm election during which Democrats might lose their tenuous grip on power; yet Biden’s committee on studying whether we should maybe, possibly try to fix the court will spend 180 days dickering with Federalist Society people about what Thomas Jefferson would do.”

This report did exactly what it was intended to do, provide cover for Biden who doesn’t have the stomach to expand the Supreme Court (or get rid of the filibuster for that matter).  As Mystal pointed out, the commission itself was composed of people who make their living arguing before the Supreme Court.  Appointing a commission like that is like appointing the sharks to supervise water safety.

In addition, the commission had nothing to say, nothing, about ethics and the Supreme Court.  The Supreme court is the only judicial body in the country with absolutely no ethics regulations.  There is no requirement for members of the Supreme Court to recuse themselves from cases in which they might have an interest.  There is nothing to prevent the wife of a sitting Supreme court Justice to participate in a coup attempt to overthrow the government.  Ethics complaints filed against Bret Kavanaugh were summarily buried after his appointment to the Supreme Court. 

But, the Biden administration, so widely hailed on corporate news spins its wheels, claims the high ground and does nothing.

Sources:

Eli Mystal

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