Going Retrograde

Today was an important day to be paying attention. In many ways, we seem to be going backward. Only our votes can ultimately change that.

Senate Republicans blocked a measure that would have created a federal right to contraception access today. That seems like it should have been noncontroversial. It’s 2024. But it was not. It failed to pass, with Republicans saying the legislation was both unnecessary and government overreach. I suppose it’s only unnecessary if you don’t care about the right to contraception going the same way as the right to get an abortion.

There you have it. The Republican Party no longer believes you have a right to contraception. The bill would have prevented the federal government or any state from enacting a rule that prohibited or even restricted the sale or use of contraception. Only two Senate Republicans didn’t vote against the measure.

Reporting cast this as a vote designed by Democrats to force Republicans to go on the record. To be fair, it was that, at least in part. There’s nothing wrong with that—we’re entitled to know where our elected officials stand on important issues, especially in an election year and when so many of them have a history of ducking constituent events. Senator Chuck Schumer went even further. “Today was not a show vote. This was a ‘show us who you are’ vote, and Senate Republicans showed the American people exactly who they are,” he said. A discharge petition was introduced in the House to try and force the bill to a vote, but that’s unlikely to happen.

Multiple studies have confirmed the positive impact contraceptive options have on women’s lives. Contraception access increases women’s educational attainment and earnings, according to a study by the Institute for Women’s Policy Research. Most importantly, contraception access decreases poverty and increases earnings. Kelly Jones, an economist with the Institute, wrote that “Decades of scholarly evidence makes an ironclad case that affordable contraception is key to women’s education and career opportunities. Policymakers must understand and respect the scientific evidence and ensure that all women, including those with low incomes, have access to the health care they need to live their fullest lives.” The Guttmacher Institute study details the social and economic benefits that accrue when women can determine when to have children, including the impact on preventing teen pregnancy and the correlation with education outcomes. Study after study documents the positives of access to birth control. Women will go back if that access is revoked.

Trump wants out from under the gag order in the Manhattan case, but the District Attorney opposes that move

Trump asked Justice Merchan to terminate the gag order that prevents him from talking about court and prosecution personnel, witnesses, and jurors. In a letter brief he suggested the gag order was no longer an appropriate restriction on his First Amendment rights, since the trial has ended.

Wednesday morning, the District Attorney’s office responded, asking the court to refrain from ruling now, so they could have the opportunity to brief the motion on the same timeline that applies to other post-trial motions, which would give Trump until mid-month to file his brief and the DA until the end of the month.

We know that since the verdict, there have been efforts to expose jurors, Michael Cohen, and his family to doxxing. None of those efforts are related directly to Trump, but the District Attorney, according to the letter submitted by the office, wants the opportunity to fully explain that the interests the court cited when it imposed the gag order “have not abated, and the Court has an obligation to protect the integrity of these proceedings and the fair administration of justice at least through the sentencing hearing and the resolution of any post-trial motions.” The District Attorney agrees to address whether any modification of the order is appropriate.

Last night, I wrote about Judge Aileen Cannon’s decision to hold a very unusual hearing on June 21. It’s unusual because she has scheduled oral argument from non-parties who filed amicus briefs on the issue of whether the appointment of Jack Smith as special counsel is constitutional. Today, we learned more.

As we noted last night, the District of Columbia Court of Appeals resolved this issue in 2019, finding that the appointment of Special Counsel Robert Mueller was constitutional. Although not binding on Judge Cannon, who sits in the Eleventh Circuit Court of Appeals, the decision has strong persuasive force, and it’s a unanimous, conclusive opinion—the court didn’t struggle to reach the result. No court has held or even seriously questioned the lawfulness of a special counsel appointment, across multiple appointments through the years. It’s fair for Judge Cannon to take an independent look, but it’s odd to ask for still more input from random non-parties who showed up with amicus briefs to express their opinion on this topic.

There is nothing wrong with a court accepting amicus briefs from non-parties, although it’s more unusual before a trial court than it is before an appellate court. Granting argument to non-parties, though, is exceptionally rare and usually reserved for a governmental entity that has a stake in litigation between private parties.

I’ve had arguments on entire motions that didn’t last for 30 minutes, but Judge Cannon has allotted that amount of time to each of the amici, almost as though she has nothing but time to spend in court—an odd approach for a Judge who recently complained she couldn’t even set a trial date because of the backlog of undecided motions. The Judge has scheduled the hearing for one full day and the better part of a second one, on a motion that she could just as easily, and correctly, have denied based on the briefs.

Judges aren’t required to hold oral argument on every motion that is filed. Most judges do so only if there are unanswered questions after they read the briefs that require further input from the parties. Judge Cannon has scheduled the first day to include argument from counsel, argument from amici, rebuttal from the parties, and any presentation of evidence “deemed necessary” by the court. It sounds like a recipe for delay.

Trump’s goal here is to dismiss the prosecution, arguing it was brought by an entity that wasn’t properly in place and didn’t have the constitutional authority to obtain an indictment. If Judge Cannon rules in Trump’s favor, the Special Counsel has an immediate right to appeal to the Eleventh Circuit. They probably have their notice of appeal prepared already in case that happens. It’s far more likely that Judge Cannon ultimately rules in their favor. But there will, again, be excessive, unnecessary delay, giving us new meaning of the phrase “justice delayed is justice denied.”

I still have not forgotten Justice Alito and the flags he tried to blame on his wife. He's the biggest beneficiary of the recent news cycle, which has knocked him off of the front burner. So, I wanted to share my own flag with you.

Here it is! To celebrate our second anniversary here at Civil Discourse, there’s swag! Mugs, tee-shirts, candles, and the flag. Click here to go to the store and get a 20% off discount or go to http:/www.civildiscoursestore.com and use code Civil20 at checkout.

Happy Anniversary to us!

We’re in this together,

Joyce