This is Fighting Words, a weekly newsletter about what got me steamed this week. Let’s dive in. |
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Item one: A truly terrible and mostly under-the-radar judicial decision We’re all sitting here steeling ourselves for what the Supreme Court is about to do to Roe v. Wade, as well we should be. But get to know this case caption, because in due time, non-wingnut America may well wake up one morning and look at the news and gasp: The Supreme Court did what? The case is Jarkesy v. SEC, and the decision was just handed down by the Fifth Circuit Court of Appeals in New Orleans. It’s a deeply reactionary decision that, if someday upheld by Scotus, could severely limit the federal government’s ability to enforce hundreds or thousands of different federal laws and regulations. George Jarkesy, as Ian Millhiser explained at Vox, is a hedge-fund guy who is accused of defrauding investors. The Securities and Exchange Commission brought a proceeding against him before a federal administrative law judge, or ALJ. You’ve probably heard of ALJs, but you may not be aware of their prevalence. Across the agencies of the executive branch there are some 1,700 of them, and they hear all kinds of civil—not criminal—cases, from allegations of fraud like those against Jarkesy to whether people are entitled to certain federal benefits, to labor disputes, to all kinds of things. They enable the federal government to enforce its statutes and regulations, and their constitutionality has never been questioned. But along comes Jarkesy to argue that he’s entitled to a jury trial. The right to a jury trial in a criminal case is of course enshrined in the Constitution. But not in a civil case. ALJs hear thousands of them a year. And along come Judges Jennifer Walker Elrod and Andy Oldham (under the circumstances, I’d have preferred Andrew Loog Oldham) to say, despite decades of history and several precedents, that, by cracky, Jarkesy has a point. Elrod was appointed by George W. Bush and confirmed by the Senate by voice vote. The Federalist Society lists her as a contributor. Oldham was nominated by Donald Trump and confirmed by the Senate 50–49 (straight party line; John McCain missed the vote). He clerked for Samuel Alito, and the Federal Society hearts him too. If you want to know all the precedential history, click on the Millhiser link above. I’ll just note that precedent upholding the legitimacy of ALJs dates to 1979. Almost as old as Roe. The point is, if the Supremes hear this case and agree with Elrod and Oldham, the federal government’s ability to bring civil proceedings against various types of miscreants is pulverized. Everything would have to go through “normal” (Article III, in the argot) federal judges. They’re already overloaded. Justice for defrauded investors or for injured workers or people seeking Social Security benefits would be so delayed as to be denied, and—the real point—the federal government would shrivel in terms of its enforcement powers. There’s a possible solution to this. Appoint more federal judges. It’s an idea that’s out there. Congress and Joe Biden could do that tomorrow, except—oops—it would need 60 votes in the Senate. Yep, the filibuster again. I guess it’s impossible to make regular Americans connect these dots, but you’d think Democratic senators could connect them. |
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Item two: Who is Barry Loudermilk? Thursday afternoon on MSNBC, Nicolle Wallace asked Charlie Sykes, What do you know about Barry Loudermilk? Sykes offered that all-too-rare cable TV response: Not much, really. Who is he? He’s a congressman from Georgia, from the 11th district, north and west of Atlanta. He co-sponsored legislation to disband the Environmental Protection Agency. He seems to be in the pocket of the credit-rating agencies, whittling away at consumer protections. He voted not to certify the presidential election results. And so on. A run-of-the-mill right-wing backbencher: hence Wallace and Sykes’s lack of information. Nothing of particular interest. But now, the January 6 select committee has hit upon something quite interesting indeed. Loudermilk gave a tour of the Capitol to constituents on January 5, 2021. That’s, uh, one day before January 6, as you have no doubt already sussed. The Capitol was closed. He was caught on closed-circuit showing some people around. The long-held suspicion, of course, is that some GOP members gave “reconnaissance tours” before the riot to people who’d come to town to storm the Capitol. Loudermilk insists that he did nothing wrong—that it was just one family, and they never ventured into the areas that were breached. If so, that family got a pretty crappy tour, considering that the breached areas included the halls directly surrounding the House chamber, the House gallery upstairs, and the magnificent Rotunda, the showcase of any Capitol tour, with its impressive statuary and its eight large canvases depicting scenes of the early republic. We shall see what we shall see. But one increasingly gets the feeling from the leaks that have come out from the committee that these people know stuff. A lot of stuff. Which the rest of us will know soon enough. |
Item three: Elon Musk is the center of the universe (to Elon Musk) You probably saw this tweet from Elon Musk: |
I do have to wonder what his evidence is. Is it those Democratic senators who accused a recent Supreme Court nominee of essentially being in bed with child pornographers? Is it the member of House Democratic leadership who sent out a tweet lumping together the opposition’s leaders with the “usual pedo grifters” as being responsible for the baby formula shortage? Is it all those elected Democrats promoting “great replacement theory”? Oh, right. It was Republicans who spewed all the poison above, and a lot more besides. So no, Musk isn’t referring to the stuff that’s happening in the actual world, in which most of the hatred is put out there by the right—hatred and division whose roots go back to the days when Rush Limbaugh was calling feminists Nazis and Newt Gingrich was blaming a mother’s murder of her two sons on liberalism. It’s far more likely that Musk is referring to Twitter and the invective he has undoubtedly received from leftists and liberals ever since he announced his intentions to buy Twitter and reinstate Donald Trump. I have no doubt that he’s received many thousands of rage-filled and tasteless emails. But really. Musk is making two egregious errors. First, he is confusing Twitter with the real world. Of course there’s a lot of stupid rage on Twitter. But Twitter is not the world. The world is the world. The world is a place where people either work to expand rights, to help working people, to protect consumers, to foster tolerance, or do the opposite of those things. Second, he is confusing himself with society. He is taking invective from the left aimed at him and generalizing it to conclude that the left is full of hate generally. Why is it not surprising that the world’s richest man is capable of such a mistake? There were multiple reports Thursday that his Twitter bid was falling through and he was just looking for scapegoats to get out. Here’s hoping that’s true. And I say again: Though I find Twitter useful and amusing at various times, the world would be better off without it. |
Last week’s quiz: At the hop: Things from the 1950s. |
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1. A food company salesman named Gerry Thomas, pondering a solution to a problem his company faced of possibly having to throw away tons of meat that was about to spoil, came up with what culture-transforming idea? |
A. The Howard Johnson’s restaurant chain B. Selling frozen meat in grocery stores, which hadn’t been done before C. The TV dinner D. The idea of companies giving employees turkeys at Christmas |
Answer: C, the TV dinner. Thomas worked for Swanson’s. And no, by the way—despite what you’ve heard, Tucker Carlson did not inherit Swanson wealth. A Swanson heiress married his father, but Swanson’s was sold to Campbell’s long ago. |
2. In the 1950s, “Made in Japan” carried connotations in the U.S. of being cheap, crappy, low-quality. This began to change when a Japanese company developed an important first. What was the company, and what was the first? |
A. Toshiba; calculator B. Sony; transistor radio C. Honda; self-propelled lawnmower D. Haikkado; hearing aid |
Answer: B, Sony. The company initially had some long and cumbersome name; when its engineers invented the transistor radio and the company knew it finally had a product that stood to be a hit in America, it decided it needed a name that was pronounced the same in Japanese and English (no small feat) and came up with Sony. |
3. Match the popular television show to the protagonist. |
The Honeymooners Father Knows Best Leave It to Beaver Bonanza |
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Ben Cartwright Ralph Kramden Jim Anderson Theodore Cleaver |
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Answer: The Honeymooners, Ralph Kramden; Father Knows Best, Jim Anderson; Leave It to Beaver, Theodore Cleaver; Bonanza, Ben Cartwright. I think all four of these shows are still on somewhere or another. Kind of remarkable. Eddie Haskell is one of your great all-time sitcom characters. |
A. The first Sputnik rocket B. An important early IBM computer C. The official model number of the Edsel D. Chuck Berry’s Gibson guitar model |
Answer: D, Chuck Berry’s Gibson. Always cherry red. |
5. Who was Claudette Colvin, and why should she have been more famous than she was? |
A. She was a Black woman from Harlem who, though by all accounts the superior vocalist, lost a soprano slot at the Metropolitan Opera to a white competitor. B. She was a Black woman from Montgomery, Alabama, who refused to move to the back of a public bus months before Rosa Parks did but whom the NAACP did not want to promote. C. She was a gay woman from California who was America’s fastest female sprinter but was denied a spot on the 1956 Olympics team. D. She was a white woman and scientist at Bell Laboratories who developed the idea of direct-distance dialing only to see it stolen by male co-workers. |
Answer: B, Rosa Parks’s predecessor in civil disobedience. Fascinating story. |
6. What famous character in what movie said, “Oh, in my youth, I excited some admiration; but look at me now! Would you think it possible that I was once considered to be—attractive?” |
A. Blanche DuBois, A Streetcar Named Desire B. Willie Loman, Death of a Salesman C. Maggie Pollitt, Cat on a Hot Tin Roof D. Sabrina Fairchild, Sabrina |
Answer: A, Blanche DuBois, Streetcar. Technically the play was from 1947, but the movie came out in 1951. Man, that Vivien Leigh. |
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This week’s quiz: “Out, damn’d spot!”—or brush up your Shakespeare. Because American politics is just feeling awfully Shakespearean to me these days. |
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1. Who was King Lear’s good daughter? |
A. Regan B. Cordelia C. Portia D. Goneril |
2. Match the famous line to the play: |
“If you prick us, do we not bleed? If you tickle us, do we not laugh?” “[Life] is a tale told by an idiot, full of sound and fury, signifying nothing.” “This royal throne of kings, this sceptred isle … this blessed plot, this earth, this realm, this England.” “A horse, a horse! My kingdom for a horse!” |
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Richard III Richard II The Merchant of Venice Macbeth |
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3. Match the famous supporting characters to the play: |
Rosencrantz & Guildenstern Falstaff Malvolio Calpurnia |
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Twelfth Night Hamlet Julius Caesar Henry IV |
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4. In “All the world’s a stage,” the famous soliloquy spoken by Jacques in As You Like It, which age of man ends in “childishness and mere oblivion; sans teeth, sans eyes, sans taste, sans everything”? |
A. The fifth B. The sixth C. The seventh D. The eighth |
5. With which of these writers did Shakespeare enjoy a competitive friendship, in which the contemporary acknowledged the Bard’s natural gift despite his “small Latine, and lesse Greeke”? |
A. Christopher Marlowe B. Ben Jonson C. Samuel Pepys D. William Congreve |
6. The multiple screen adaptations of this tragedy include the 1935 Indian film Blood for Blood; Akira Kurosawa’s 1960 The Bad Sleep Well; The Lion King, some say; and Claude Chabrol’s 1963 Ophelia. |
A. Hamlet B. Macbeth C. Othello D. Romeo and Juliet |
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Easy peasy! See you next Friday. I’d love your feedback. I think. Email me at FightingWords@tnr.com. —Michael Tomasky, editor |
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