Garland's Justice Department is continuing to intervene on Trump's behalf into the defamation case against him brought by E. Jean Carroll, a fashion writer he raped.

Breaking better news: Biden has ended infrastructure negotiations with GOP.

1: The very thing that precipitated this post. Also the DOJ continuing with the reporter's emails thing and defending redactions of DOJ deliberations on Mueller report (this last I can sort of see).

Cue GOP waaaaaaaaaaah in 3...2....1....

to 2. And thank you, LB.

There claims of Institutional concerns on the E. Jean Carroll thing are utterly short-sighted and misogynistic and much else.

My main hope for Garland was that he was viciously angry about having a Supreme Court seat yanked away from him. He doesn't seem to be.

Revenge is a dish best served as a Popsicle.

7:Yeah, instead of that we have an SC Justice who is viciously angry about the process of getting on the court. Although he seems to have some "institutionalism" in his blood as well. But will almost certainly deliver the needed democracy/abortion rights destroying vote when the time comes.

9: And in 30 years he'll be as batshit insane as Clarence Thomas, if not worse. So sad, after all those years of selling his soul for a seat on the Court, to have it forever tainted by his own youthful viciousness.

7 moi.

And there is a through line from the NYT reporters' email thing and Comey as it ws part of the bogus investigation into whether Comey had released classified info. Apparently in particular a Russian-hacked email/memo from some Dem operative that expressed confidence that Loretta Lynch woul not let an HRC investigation go to far. Comey used as part if his BS excuse for his holier-than-thou shitshow of a press conference. (NYT had reported that hence the "investigation.")

Angry Stormcrow is best Stormcrow.

Just in general, I'm finding it difficult to stay engaged with the news and to avoid a crippling degree of anxiety.

Angry Stormcrow is the worst Stormcrow.
I don't see that Garland has "lost" a Scotus seat. He can still be nominated at any point in the future. He'd have to recuse himself from a bunch of DOJ stuff, so not great, but it's still possible. In any case though he's shockingly old, so I don't see he was ever such a great pick.
AIUI the DOJ is bound to continue cases inherited from the previous administration, which IMO is as it should be; officers come and go, but the offices remain. I'm not up on all these cases, but the general problem I see is basically that the executive has too much judicial power: courts give it too much defernce, it has enough lawyers to grind down anyone, or at least extend proceedings for so long that outcomes become meaningless. I think that's a major problem that needs solving; but solving would involve at this point stripping power from a Democratic executive in favor of a likely-soon-Republican Congress; but remaining as is means leaving the powers with the likely-soon-Republican executive. In conclusion, HR1! DC statehood!

Like, in particular, the Mueller/Barr kerfuffle stems AIUI basically from one thing: Mueller couldn't indict a sitting president, not because of constitution or law or precedent, but because of an internal DOJ OLC opinion. AFAIK that opinion has never been tested in court, and OLC opinions in general have a poor survival rate when they are tested. Maybe that was okay as long as the DOJ was professional enough that it didn't do anything egregious; but once saboteurs got into the building it was forced into doing egregious things; the offices weren't well enough designed to constrin bad officers.
Similarly AIUI a vast swathe of Trumpian abuses throughout the government would have been precluded by ethics and professional guidelines, but happened anyway because the guidelines were just guidelines, not laws; and other abuses were identified by Inspectors General, but IGs didn't have sufficient powers or independence to take action; etc etc.
What I'm fumbling towards is roughly that the problems pointed out by OP et seq are proximate, not ultimate; that the ultimate* cause is excessive reliance at many levels of government on simply the good faith of office holders.
*Not actually ultimate, intermediate; the ultimate cause is Republicans being Republican;** and technocratic level intermediate solutions, while vital, will not succeed unless coupled with political level defeat of Republicans.
**At this particular juncture; bad actors being bad, in general.

And consequently, criticism of the institutionalists is understandable but off-point. The institutionalists are maintaining their institutions: this (like the technocratic reforms above) is necessary (but not sufficient) for the recovery of the republic.

And in background, the decades-long Republican sabotage of the public good at the political level has led to actual governance being conducted instead at the technocratic level. This is why Mueller was freighted with such hope, and then such disappointment: people were hoping a technocratic level solution would emerge for a problem the political level wouldn't solve.* The technocracy not being built for such a problem, Mueller was forced to his egregious decision not to prosecute. Similarly, Comey** was forced into the egregious email inquiries*** by Republican sabotage in Congress, and ended up flailing and derided in public due again to the freighting of technocratic procedures with political expectations.
*People (less the hope) including Trump himself; he thought he (An elected president!) couldn't survive an FBI investigation.
**Who AFAICT made his mistakes in good faith. (I know LB and others disagree; I won't argue it.)
***Which again backhandedly deferred governance to the technocracy; the Republicans fished for FBI findings to lend their charges the weight they themselves (Elected members of Congress!) could not provide.

If you love institutions so much, MC, why don't you marry one?

She said that if she was necessary but not sufficient for me I was neither necessary nor sufficient for her.

I don't know that any multiparty political system can function successfully when one party is intent on exploiting any loopholes and weaknesses they can find. Government is much more complicated than a sport (and there's no rule that says a dog can't play basketball.)
That's especially so when, as noted, most things are norms where the punishment is public shame supposedly leading to electoral punishment, and one party has an entire apparatus dedicated to ignoring their transgressions while making up outrage about their opponents. Didja hear that Biden forget to mention D-day when he was instead in Tulsa worrying about Those People?
Even things that are formal laws are enforced by a court system that, when it doesn't decide to punt on things as "political questions," takes so long to process penalties that the turnaround can be longer than the lifetime of an administration. Trump learned that well from his business dealings, just tie people up in court long enough and you'll never have to pay your debts.

20.last Or invent the "equal dignity of the states" doctrine, which overrides the Reconstruction Amendments.

13: I gave up following the news whenever the Democrats abandoned the second impeachment. I'd been following the news closely since 2000 first on blogs and then on Twitter. So it was a big change. Had to rework my Twitter account and find new things to talk about with politically engaged friends but it's been really good for my sanity. Some things still slip through. I know Biden bombed Syria and Sinema gave a thumbs down to raising minimum wage and Manchin is against voting rights. But I don't have to ride the emotional rollercoaster every news cycle of wondering if this time they'll do the right thing this time. I highly recommend it.

20.2: The failure to simply hire enough judges (and supporting staff) to process cases more rapidly seems like an especially stupid bit of institutional dysfunction that has been around for a long time. Unlike many other institutional problems, this one is baffling to me because I don't see who really benefits from it. I guess wealthy bad actors benefit because justice delayed is often justice denied. And maybe lawyers benefit from not having the tighter deadlines they'd have if the system moved faster. But a faster judicial system would benefit wealthy law-abiding people and businesses because they'd be able to get cases resolved in their favor faster and not be left hanging. One would think that might count for something. Surely there'd be some overall economic benefit from faster legal dispute resolution.

22: Abandoned the second impeachment? They impeached him twice, and made what was by most accounts a strong presentation in the Senate in support of the second impeachment. I guess you're referring to the fact that they didn't push to have the Senate vote on the second impeachment before January 20? But since the Republicans would have voted to acquit anyway, it's hard for me to see why that mattered much.

I should have said the second impeachment trial. When they got the votes they needed to call witnesses... and then just didn't, just wrapped it all up. Maybe there was a good reason for doing that, maybe not. But that is exactly the sort of thing that I am better off not watching in near real time.

The failure to simply hire enough judges (and supporting staff) to process cases more rapidly seems like an especially stupid bit of institutional dysfunction that has been around for a long time. Unlike many other institutional problems, this one is baffling to me because I don't see who really benefits from it.

I think part of it is that figuring out what's gumming up the works in the personnel system and making every hire take a year is especially non-prestigious/satisfying for the leadership investment it needs.

Fucking Garland. Justice Department says it can 'vigorously' defend religious schools' exemption from anti-LGBTQ discrimination laws

Jesus Christ. Garland was Orrin [expletive] Hatch's recommendation to Obama for a SCOTUS nominee. Of course he's going to be the biggest letdown imaginable. His tenure as AG will be a stark reminder that he'd have been a supremely frustrating justice too.

27 Fucking consolation prize ass AG.

Unrequited love for institutions is most tragic love of all.

I think we underappreciate institutions in the US, because our institutions have historically been pretty good, and once they are destroyed they ain't coming back. So it makes sense for the DOJ to carry forward any cases that involve a rule that should be established or maintained. But the rule the DOJ is carrying forward -- that the President is above the law while they are in office -- is a terrible one on the merits.

Garland was Orrin [expletive] Hatch's recommendation to Obama for a SCOTUS nominee.

Wait. In the 8th year of the most obstructed presidency of all time, Obama was using recommendations from Republicans to choose SCOTUS nominees? What the utter fuck.

Wait. In the 8th year of the most obstructed presidency of all time, Obama was using recommendations from Republicans to choose SCOTUS nominees? What the utter fuck.

I didn't remember Orrin Hatch's recommendation, but there were two calculations (1) It was helpful to be able to say, "If Garland was given a hearing he would have been confirmed" (within a Republican controlled Senate) and (2) there was an implied deal, "take Garland now or take your risk with whoever Hillary nominates."

30: I don't think it's that we fail to appreciate institutions. I think it's that institutions have been hollowed out by avarice, neglect, and malice for forty+ years and now often serve more to impede their ostensible functions than perform them. But the institutionalists tend to downplay or fail to acknowledge the extent of the destruction, which is madness.

We *had* pretty good, maybe even *really* good institutions, for certain functions at least. But some cost-savings here, some outsourcing there, add some malfeasance, throw in some overt corruption... we can't just appoint Good Folks now and call it a day. We're going to have to rebuild, perhaps reexamine and build something new. But not only is that going to be hard, novel work, we can't really even start it until we've defeated the nihilists and revanchists responsible for the neglect and corruption.

32: When I think of how the Obama administration played politics with their decisions during the election year, it makes my blood boil.

32: When I think of how the Obama administration played politics with their decisions during the election year, it makes my blood boil.

31, 32: Yes.

Which is why giving the slightest credence to a single goddamned word any DC Republican says should get you primaried the very next cycle.

Obama was just so consistently outplayed by Mitch McConnell.

38 seems unfair to me. McConnell had a very simple goal (thwart Obama as much as possible) and very simple means with which to achieve it (control of the Senate). Obama was actually trying to govern responsibly and get stuff done. The two of them were playing an asymmetrical game in which it was vastly easier for McConnell to achieve his goals than for Obama to achieve his. It's not accurate to say that the player who has the easy side of an asymmetrical game has outplayed his opponent.

Obama could have minted the coin but everybody knew he wouldn't. He was never willing to fight unreasonableness with unreasonableness. That's on him.

Really, really annoyed that Biden's DOL is not going to issue an Emergency standard for workers other than healthcare workers. Everyone else just gets guidance. Marty Walsh claimed that science showed healthcare workers were most at risk - except that by the numbers, it's like line cooks, agricultural workers, workers in meatpacking plants etc.

Biden promised a standard, but the administration slow-walked it.

His original deadline was March. But now they'll say that vaccines change everything, and there's no duty to protect the unvaccinated.

" I'm not up on all these cases, but the general problem I see is basically that the executive has too much judicial power: courts give it too much deference, it has enough lawyers to grind down anyone, or at least extend proceedings for so long that outcomes become meaningless."

And on top of that the courts have been packed with bad guys. The Supreme Court judges we adore are really only good in the context of that. The future is theirs: Roger Benitez is the wave of the future, and Amy Coney Barrett has it in her to match him, I'm sure.

The situation where Obama gets penalized for governmental failure and McConnell gets rewarded for governmental failure created a truly unwinnable situation for Obama, and creates a truly unwinnable situation for Biden. WRT Obama, McConnell had an unbreakable blocking position from January 2015 on, and Republicans in general from January 2011 on. Obama didn't create that, we the voters did.

That's no excuse for Garland catering to the Article II fanboys -- of whom there are many on the left side of the spectrum as well.

There are a bunch of judicial vacancies in NY and CA to fill, and those senators need to be getting that done. There's one in the DDC now (Sullivan took senior status in April) and there will be another when JKB goes on the circuit. Two in the ND Georgia that you'd want to fill for vote suppression litigation. 17 district court vacancies in California! WTF is going on out there? I know it's hard to live in urban CA on that kind of salary, but really this has got to be solved. 4 in the ED Pa. 8 in NY, and 2 on the 2d Cir. Let's start a draft LB movement! You'd prefer SD to ED, right?

KBJ

14-17: In general.
Ultimate vs. proximate causes; Yes, sure of course. I "forgot" the "but the real problem is the Rs and their voters*" caveat in my wrathful brevity (this time anyway , a theme I have expounded on with verbose eclecticity in the archives of this web magazine. and sure it's people all the way down, no straight institution was ever made from the crooked timber of humanity to coin a phrase.

And in thinking about it a bit more, I think one of the issues is that I would argue that in these cases this group of puffed up righteous white dudes are faux institutionalists whose self-regard has led them to think that their own precious selves is vital to their institution. Individual details and disapprobation in next comment.

*And yes, who really knows how to best respond. Per my comment at the end of the Justice Breyer thread: What is the correct tactic to fight it? Who the fuck knows. We are deep into an Extraordinary Popular Delusions and the Madness of Crowds thing and who even the fuck knows.

Old white guy "I'm the Institution So I Alone Must Defend It" fuckery in more detail.

Comey. Candidate for the type specimen. Summer 2016: I must save the reputation of FBI and DOJ from the taint of the black female AG. I alone can do this. Fall 2016: I have been tasked with a burden greater than any mortal could bear, but I have chosen once again to save the institution by grievously harming it.

Mueller: My grievances with Mueller are generally not the crap MC brings up. Three main ones: 1) His not getting into the financial stuff where the heart was. 2) His correct move at several points probably was to get fired. This was viewed as apocalyptic on his team (and among many who pinned such hopes on his work). 3) Just speak the fuck up unambiguously when Barr bigfooted your whole thing (with able assistance form the Peter Bakers of this world).

Merrick Garland. I don't give two fucks about him as SC Justice pick per se. Thought it a pretty stupid pick at the time. Granting the point that there will always be awkward continuity issues with the DOJ, it manifestly does *not* have to continue BS like the E. Jean Carroll thing. And looking at institutions more broadly, the DOJ is far more tainted far, far more by BS like that than any perception of fucking continuity issue on this kind of thing. And holy fuck per 15.* "and technocratic level intermediate solutions, while vital, will not succeed unless coupled with political level defeat of Republicans." Gee dya think. Do you think this fucklng helps rally the support of the Democratic base (also see nomination of Garland, M for SC in 2016, a pick almost guaranteed to make McConnell's obstruction a non-issue witht he base).

Breyer: I is good reasonable justice.

There were four of us this morning
There are three of us this evening
But I must go on
The chambers are my prison

Manchin: I'm tired.

The stupid IG report on Lafayette Square (but much, much stupider media reporting/reaction*). Faux institutionalism or institutionalism colored by Trump asshole crony . Kinda both. And strongest element is Interior defensing itself by answering the narrowest possible question about its own involvement (there was a pre-existing plan to move protestors out). Media missing that aspect of it is truly incredible but also incredibly typical. They did not interview Barr, Secret Service, MPD. Bureau of Prisons, or White House personnel.

*I see that some in media not swallowing it whole, but mainline TV and to a lesser extent NYT and WaPo doing so.

IGs in general are a whole big part of this. FOr good and bad. See Horowitz at DOJ, and the various IGs during the HRC email thing.

Somehow the defense of fuckpiggery and repressive bullshit is stronger than that of women, people of color, progressive institutions etc. See recent DOJ very strong statement on defending religious orgs right to discriminate against LGBQT.

The steady drip of things like this disingenuous IG report do more to harm institutionalism than any amount of kvetching from leftist would-be revolutionaries.

Beyond the general principle of not blindly defending institutions, isn't it also true that our particular institutions aren't that good? The Bill of Rights is wonderful in principle, and the 13th, 14th and 15th Amendments are wonderful in principle, and the general concept of a Supreme Court might perhaps be a good one, but except for 12 years immediately following the Civil War, up until the 1960s these wonderful principles didn't do black Americans much good. ANd the case with Native Americans is in many respects worse.

The pre-Civil-War Supreme Court protected slavery, and after the end of Reconstruction the Supreme Court protected white supremacy intil LBJ and Fortas came along. There wasn't even a legal basis for rejecting anyti-lynch laws, the Court just kept finding ways to evade and post,pone the issue. (Recommended: Kato, Liberalizing Lynching. )

And however good a game the US talks about habeas corpus and the rights of thedefendant, in liberal NY a young kid committed suicide after 3 years in jail waiting trial. Your rights are a dead issue without a lawyer. (On the other hand, Bill Gates or Trump could murder someone on Broadway and his lawyers would bail him out, or at least drag out the process until the defendant died a natural death in freedom.

52.last: The IG of the Dept. of Rich People Impunity would write a narrow report exonerating them.

I don't think it is in Zany Afternoons, but Bruce McCall had a great series of parody auto ads (20s/30s era) which depicted cars from the same manufacturer ranging from entry-level up through very luxurious. The ad copy for the top of the line model read something like "A gentleman was being driven home in his [Car brand Deluxe model name]. The car struck and killed a young girl. When the police arrived they wished the gentleman a good day and waved him on his way."