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The two most divisive events in US politics are about to take place at the same time – CNN

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The US President now plans to make a third pick for the nine-person bench on the highest court in the land. He will almost certainly enshrine an unassailable 6-3 conservative majority on the Supreme Court, which means that political change launched by any future Democratic presidents and Congress could be undone by the Court’s constitutional interpretations — no matter what the majority of the nation wants.
Appointed for a lifetime, justices can change over the years, sometimes in a way that surprises and annoys the presidents who nominated them. They are also supposed to respect precedent, so it’s impossible to say how the high court will behave on all issues.
But there is now a very real prospect that a woman’s right to an abortion, guaranteed by the 1973 case Roe v. Wade, could be overturned or limited. A conservative-dominated Supreme Court could also roll back future attempts to regulate gun laws, hinder attempts to regulate polluters in the fight against climate change, and embolden challenges to legislation on voting rights and outlawing racial discrimination. And fear is growing among supporters of same sex marriage, only legalized in 2015.
Former President Barack Obama’s signature health care law, which allowed millions to buy insurance plans, already looks to be in trouble. The court will hear the Trump administration’s attempt to kill it off after the election. Even if Trump’s latest pick is not yet in place and Chief Justice John Roberts votes to save the law for a third time, a potential 4-4 tie among justices would mean a lower court ruling invalidating it would stand.
Demographic trends in the United States look unappealing for Republicans; there is a strong argument that the country will become more secular, urban, socially liberally, and racially diverse in the next few decades. But a conservative Supreme Court could be a bulwark against political change — one reason why conservatives have spent several generations working toward building this majority and why Democrats will long curse their failure to beat Trump in the 2016 election that opened the way to this extraordinarily important moment.

‘What was then a hypothetical is now a reality’

Two Republican senators so far have said they would oppose taking up a Supreme Court nomination before Election Day — Sen. Lisa Murkowski of Alaska and Sen. Susan Collins of Maine. “For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. Sadly, what was then a hypothetical is now our reality, but my position has not changed,” Murkowski said Sunday. “I did not support taking up a nomination eight months before the 2016 election to fill the vacancy created by the passing of Justice (Antonin) Scalia. We are now even closer to the 2020 election — less than two months out — and I believe the same standard must apply.”

Battles ahead

The two most divisive, tumultuous events in American politics — a Supreme Court nomination battle and a presidential election — are about to take place at the same time.
The President is expected to name his nominee to replace Ruth Bader Ginsburg this week. He has promised to name a woman, and Republicans will rush to try to get her onto the bench either before November’s election or shortly afterwards.
Democrats are furious, rightly accusing Republicans of gross hypocrisy: In 2016, when conservative Justice Scalia died in February of that year —months before the election — Senate Majority leader Mitch McConnell refused to even consider then-President Barack Obama’s nominee, saying voters should ultimately decide who should get to fill the vacant seat. Now, with a Republican in the White House and the election just 44 days away, McConnell is refusing to apply the same principle.
The Kentucky senator’s power play four years ago turned out to be one of the shrewdest and most ruthless moves in modern American politics, paving the way for the court’s conservative majority. There’s little Democrats can do to stop McConnell pressing ahead. Even if Joe Biden wins the election and Democrats win back the Senate in November, McConnell could still plow onward to confirm Trump’s pick in a lame duck session of Congress before new lawmakers arrive in January.
That prospect has some Democrats — who believe the chance of building a liberal majority on the nation’s top bench has been stolen from them, are thinking of nuclear options — like expanding the size of the court itself if they win back the Senate.
The sudden Supreme Court fight could also have unpredictable knock-on effects on the election itself. It will allow Trump to try to take the focus off the pandemic and to solidify his standing among evangelical and socially conservative voters who might frown at his morals — but for whom a conservative Supreme Court is a life and death voting issue. But reviving the fight over abortion in the nominating battle may alienate suburban women voters Trump needs to win a second term (they are already moving away from him) and vulnerable Republican senators might prefer not take a stand on an issue that could anger the moderates they need for survival. Meanwhile, the vacancy has already electrified the left and could drive more Biden voters to the polls.

‘Nobody’s buying this’

Sweeping UN sanctions have now been placed on Iran — according to the US and literally nobody else. As other signatories to the Iran nuclear deal point out, the Trump administration’s invocation this weekend of sanctions from the JCPOA holds little legal power, since the US quit that very same deal more than two years ago. “The whole world is saying that nothing special has happened. Mr. (US Secretary of State Mike) Pompeo’s fantasy, he is fantasizing this. He wants to make everyone believe this but nobody’s buying this,” said Iranian Foreign Minister spokesman Saeed Khatibzadeh at a Sunday press briefing in Tehran. But the question is how far the US might go to enforce that “fantasy.”

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Elizabeth May's comment on NDP's women candidates 'sexist' says women-in-politics advocate – CTV News Vancouver

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VANCOUVER —
As B.C. wraps up its provincial election, federal MP Elizabeth May is attracting heat for a comment condemning the NDP’s women candidates.

On Oct. 23, May posted to Twitter saying, “Be kind. Don’t elect any idealistic climate concerned women to an NDP government to whip their votes and crush their dreams. Vote Green.”

Her comment was a come-back to another user’s tweet encouraging people to vote for the NDP’s Kelly Greene of Richmond-Steveston. The tweet in support of the NDP includes a video of Greene speaking with the NDP’s Bowinn Ma.

Ellen Woodsworth, an advocate for women in politics, says May’s comments are sexist and disappointing.

“You’re saying if a woman is running … that she’s going to automatically do what that party does without having a mind of her own,” said Woodsworth, a former Vancouver city councillor and the current co-chair of the non-partisan Women Transforming Cities.

“I think that’s really sad. I think it’s not doing what we need to do, which is to motivate, encourage and support women to run, and as they decide to run to really be there for them and give them as much support as you have because it’s a really grueling path,” she said.

Woodsworth said she thinks May’s comments are in reference to frustration from some voters and candidates that the NDP has not cancelled the Site C dam project.

“There was strong hope that (the NDP and its candidates) would be speaking out,” she said.

“(But) there’s a lot of good women (running) who’ve got strong records on environmental issues, and some of them are running for the NDP and some run for the Green Party,” Woodsworth added.
 

Ma took to social media and replied to May, calling her comment “crushing.”

“Portraying (us) … as naive, helpless, delicate women who need to be saved from the Legislature is not kind. It’s patronizing and holds women back,” reads Ma’s tweet.

A leader like May, who is the former leader of the Green Party of Canada, needs to be encouraging other women to run, Woodsworth said.

“I think it’s really critical for women in a leadership position, like Elizabeth May … (she) would want to be encouraging women to run for any party and I know that some of the women running … are outstanding.”

Other women, some of them frequent commenters on B.C. politics, also weighed in, calling the comment “awful,” bad modelling of feminism, and pointing out that there’s no B.C. Green candidate running in Richmond-Steveston.

May’s comments come at the bitter end of an election marred by several incidents of sexist and racist comments, including BC Liberal candidate Jane Thornthwaite’s comments about NDP candidate Bowinn Ma, which made national headlines.

May’s comments, as well as Thornthwaite’s, show that women can enact sexism as well, Woodsworth said.

“I’ve got many scars on my back from being attacked by women,” she said.

“Our society is very sexist, it’s racist, and anybody who goes into the political fray has to try to stand in a very principled place and … recognize how difficult it is for other women, other diverse women, to put themselves forward and to run and give them that support,” Woodsworth added.

“If you disagree with them politically, fine, state your disagreements, but don’t undermine them.”

However, at least one person commented on Twitter in apparent agreement with May, saying that they were disappointed with what they see as Ma’s lack of criticism on the Site C dam project.

Women Transforming Cities is trying to encourage more women to run for municipal government in B.C.’s 2022 municipal elections.

Only 16 per cent of mayors in Canada are women, Woodsworth said, and of elected councillors, women only make up 25 per cent.

“We encourage women and encourage diverse women to think seriously about coming forward and running for political office,” Woodsworth said.

In a recent tweet, the organization encouraged women to start planning their run several years in advance.

“Think you want to run for school board, council, or mayor in your city in B.C. in 2022? Start now. Talk about it with your friends and family. Make a plan. Now is a great time,” it reads.

CTV News Vancouver has reached out to May for comment.

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Sports stars show political power can be built in the paint as well as at the polls – CNN

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Fresh from lifting his fourth NBA championship, LeBron James is enhancing his reputation as a de-facto civil rights leader and stoking speculation about a possible political career when he hangs up his Nikes. And hours after slotting the winner in Manchester United’s latest Champions League game this week, star forward Marcus Rashford was taking on UK Prime Minister Boris Johnson’s Conservative government over his meals for kids campaign.
Sports icons have occasionally turned an athletic platform into a political one. In the 1968 Olympics, two US athletes, Tommie Smith and John Carlos, raised a black power salute. Quarterback Colin Kaepernick sacrificed his NFL career to take a knee to protest police brutality against African Americans. Tennis champ Naomi Osaka paid homage to victims of alleged police brutality at each of her seven US Open matches in September. But many more athletes, wary of getting caught in the political crossfire or jeopardizing their multimillion-dollar endorsement deals, retreat behind their walls of PR flacks and their gated communities.
James was instrumental in opening and helping to finance a public school for underachieving, mostly minority kids in his home town of Akron, Ohio. Now, after leading NBA players in their call for justice during the Black Lives Matter movement, the Los Angeles Laker is speaking out against historic suppression of the Black vote.
“We believe that Black people, our community, we’ve been pushed away from our civic duty. We’ve been fed misinformation for many years. And I’m in a position where I can educate people,” James told The New York Times.
Rashford in action during the Premier League match between Newcastle United and Manchester United on October 17, 2020 in Newcastle upon Tyne, England. Rashford in action during the Premier League match between Newcastle United and Manchester United on October 17, 2020 in Newcastle upon Tyne, England.
Like “King James,” Rashford hasn’t forgotten where he came from. The 22-year-old has spoken of sometimes going hungry as a child in Manchester, during his campaign to force the government to provide free meals for low-income kids through the holidays. The Tory majority in the House of Commons voted against the move on Wednesday, but Rashford is refusing to give up.
“Put aside all the noise, the digs, the party politics, and let’s focus on the reality. A significant number of children are going to bed tonight not only hungry but feeling like they do not matter because of comments that have been made today,” he wrote on Twitter.
Both James — a longtime Trump foe — and Rashford have faced a backlash for their activity from head-in-the-sand critics who want sport to be a politics-free zone. But they’re showing that political power can be built in the paint and the penalty box as well as at the polls.
** Apologies to the reader who emailed to say they prefer no sports in Meanwhile — deep down, this one is really about politics.

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The ACA Case Reveals the Politics of ‘Constitutionality’ – The Atlantic

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Getty / The Atlantic

“I’d like to terminate Obamacare,” President Donald Trump said at Thursday night’s debate. He said he hoped that the Supreme Court, flush with six conservative justices after Judge Amy Coney Barrett’s likely confirmation, would take care of the job for him. “Now it’s in court, because Obamacare is no good.”

Trump’s argument is an awkward one, and not only because it’s a toxic message in the closing days of a campaign that’s occurring against the backdrop of a global pandemic. At last week’s confirmation hearings for Barrett, Trump’s Republican allies on the Senate Judiciary Committee repeatedly threw cold water on the lawsuit, which the Supreme Court will hear on November 10. As Democrats drew attention to the risk that the Supreme Court might put the law to the torch, Republicans insisted that the lawsuit was unlikely to succeed and that it was unfair to assume that Barrett would be as reckless as the man who nominated her. Democrats accused Republicans of disingenuousness; Republicans accused Democrats of fearmongering. The ensuing debate was as loud as it was unedifying.

All that noise obscured two deeper truths. The first is about the nature of constitutional change, and it helps explain why Senate Republicans have a point when they question the viability of a lawsuit whose goals they share and that the White House supports. The second is about the threat that the conservative Supreme Court poses to democracy. A Justice Barrett may be unlikely to topple the Affordable Care Act, but she’s a foot soldier in a conservative legal movement that has armed itself with the tools to subvert Congress’s ability to govern.

Roll the tape back to 2010. Minutes after President Barack Obama signed the Affordable Care Act into law, lawsuits were filed challenging the constitutionality of the individual mandate, the part of the law requiring people to secure insurance or pay a tax penalty. At the time, the cases were widely dismissed as constitutional stunts that stood no chance of success in the federal courts.

By the time the Supreme Court heard them in 2012, however, the cases had become nail-biters. That year, Jack Balkin, a Yale law professor, took a hard look at how that happened. His account of constitutional change didn’t turn on the nitty-gritty of legal doctrine. Instead, it hinged on the simple insight that “what people think is reasonable depends in part on what they think that other people think.”

Supreme Court justices are people too. That’s why moving a constitutional argument from “off the wall” to “on the wall”—to borrow Balkin’s terminology—demands more than showing that the argument is legally defensible. The justices must be reassured that the argument has enough public support that they won’t be written off as kooky or eccentric for endorsing it. The Supreme Court came to find that the Constitution protected gay rights and gun rights, for example, only after those rights had become mainstream. A similar shift in public sentiment explains how the challenge to the individual mandate became plausible.

How exactly did the challengers manage it? It wasn’t enough for conservative lawyers to make clever arguments, though that was essential. Nor was it enough for Tea Party activists to crash town halls. For Balkin, the key to the campaign’s success was the full-throated support of the Republican Party. The arguments of liberal lawyers insisting that conservatives were just making stuff up about the Constitution rang hollow when Republicans across the country, including local politicians, business leaders, and the guy on the bar stool, said otherwise. An argument can’t be crazy if half the country buys it.

The Republican Party’s political support was forthcoming because the legal challenge directly advanced the party’s agenda. Republicans might cripple a law that they deplored; failing that, they could use the challenge to focus public outrage and mobilize voters. As it happened, the Supreme Court, by a 5–4 vote, upheld the Affordable Care Act by construing the individual mandate as an exercise of Congress’s power to tax. But the political gambit worked: In 2012, Republicans made historic gains in both the House and the Senate. President Obama called it a “shellacking.”

Strictly on the legal merits, this latest challenge to the individual mandate is more absurd than the first one. In 2017, when Congress eliminated the tax penalty for going without insurance, it left in place language saying that people “shall” buy insurance. With nothing to back it up, that instruction lost its teeth. But the challengers—a group of red states—have argued that Congress, by retaining that language, must have meant to coerce people into buying insurance.

The upshot is that, by eliminating the tax penalty for not having insurance, Congress made the individual mandate more coercive—and thus unconstitutional. Even more radically, the challengers say that the constitutional flaw in the individual mandate requires unraveling the entire Affordable Care Act. Neither of these arguments is defensible.

But the case’s doctrinal weakness is not what most sharply distinguishes it from the first Obamacare suit. Indeed, the arguments are coherent enough to have persuaded each of the three Republican-appointed judges who have heard the case so far. The biggest difference is that the conservative political establishment that did so much to make the last Obamacare case seem plausible, even inevitable, has not laid the same groundwork here. The case is still off the wall.

The first sign that something was different about this lawsuit came in 2018, just months after it was filed. Instead of avoiding a debate over health reform, as they had before, Democratic Senate candidates used their opponents’ support for the lawsuit as a cudgel. Joe Manchin of West Virginia fired a shotgun at a copy of the complaint; Claire McCaskill of Missouri ran ads excoriating her opponent, Josh Hawley, for joining a case that would rip protections from people with preexisting conditions.

Hawley set the script for how Republicans would respond to these attacks. They would ignore the lawsuit, not defend it, and press the misleading talking point that they support protections for people with preexisting conditions. Protective of his Senate majority, Mitch McConnell damned the lawsuit with faint praise, saying only that there was “nothing wrong with going to court. Americans do it all the time.”

The pattern has held this election cycle. Embattled Senator Cory Gardner of Colorado, for example, has refused to say where he stands on the case. Instead, he released a campaign video promising to maintain preexisting-condition protections “no matter what happens to Obamacare.” When Democrats forced a vote on whether to bar Trump’s Justice Department from supporting the lawsuit, Gardner and five other incumbents in close elections broke from their party to side with Democrats. Republicans aren’t running on their party’s support for the lawsuit. They’re running away from it.

The only major exception is President Trump himself. Indeed, the White House’s surprise endorsement of the lawsuit in 2018 is probably best understood as a bid to get the rest of the Republican Party to back the case and put it on the wall. But that bid failed: The case was just too radioactive for most Republican officeholders. Even Attorney General Bill Barr has urged the president to moderate his position. A more prudent president probably would have taken that advice.

If the lawsuit is such a liability for Republicans, why was it brought in the first place? The answer is that what’s bad for the party may still be good for some politicians. Every one of the red-state attorneys general who brought the lawsuit has ambitions for higher office. But winning a gubernatorial race in Utah or Texas means winning a Republican primary, and the primary electorate in these states is much more conservative than the general. It might be advantageous for those politicians to press a position that’s bad news for Republican incumbents.

This puts Republican leaders in a bind. Without getting crosswise with the White House, they are trying to signal as loudly as they can that they would prefer the lawsuit to go away. That effort reached almost comic proportions during the Barrett hearings. McConnell said that “no one believes the Supreme Court is going to strike down the Affordable Care Act.” Senator Lindsey Graham, the chairman of the Judiciary Committee, emphasized that severability doctrine requires judges “to save the statute, if possible.” Senator Chuck Grassley said that it was “outrageous” to think that Barrett would invalidate the law, because, “as a mother of seven, [she] clearly understands the importance of health care.”

The Supreme Court is sure to get the message. During the first Obamacare case, groups affiliated with the Republican challengers filed 59 amicus briefs, including one from the Chamber of Commerce and another on severability from McConnell and dozens of Republican senators. This time around, only five amicus briefs were submitted to support the lawsuit, all from marginal players in the Republican political ecosystem. McConnell is sitting this one out.

The Supreme Court would thus be going out on a limb were it to invalidate all or part of the Affordable Care Act. It may still do so; we’re all just guessing. But without a full-court press from the Republican Party, a result like that couldn’t be spun to the public as a principled constitutional holding. Even to Republicans, it would look like rank partisanship. And the justices know that Republicans would bear responsibility for the fallout.

Although the prospects of this particular lawsuit are dim, however, the Democrats were right to focus on it during Barrett’s hearing. To begin with, the case serves as a reminder of all the other cases about health care that are coming down the pike—and not just those about abortion. The Supreme Court, for example, will decide in the coming weeks if it will hear a case about whether 19 states can impose work requirements on Medicaid beneficiaries. The U.S. Court of Appeals for the D.C. Circuit said no, effectively preventing hundreds of thousands of people from losing insurance. A Supreme Court packed with a conservative supermajority could—and probably would—flip that decision.

This latest Obamacare case also stands in for all the cases to come involving progressive legislation. Judge Barrett has been pretty candid that she would have sided with the challengers in the first lawsuit challenging the individual mandate. If she, not Justice Ruth Bader Ginsburg, had been sitting on the Court back in 2012, the Affordable Care Act would now be in ashes.

That should teach us something about the reception that major legislation passed by a Democratic-controlled Congress is likely to receive on a 6–3 Supreme Court. Republican officeholders may have mixed feelings about this case, but they will leap to convince their conservative constituents of the unconstitutionality of Medicare for All or a new Voting Rights Act or the Green New Deal. The resulting mobilization will make the Supreme Court receptive to inventive arguments that target those laws or frustrate their implementation.

Making the Affordable Care Act the centerpiece of the Barrett hearings was thus apt—not because the law itself is in serious jeopardy, but because it symbolizes the risk of giving a veto over progressive legislation to a conservative supermajority on the Supreme Court. The justices’ views about what counts as reasonable, like anyone’s, are powerfully shaped by the political debates of our time. If Barrett is confirmed, the views of two-thirds of those justices will be shaped by a Republican Party that represents less than half the country.

That’s not just a problem for Democrats. It’s a problem for democracy.

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This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

Nicholas Bagley is a law professor at the University of Michigan.

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