Editors’ Blog

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Supreme Court Justice Neil Gorsuch is set to headline the Federalist Society’s annual conference in Florida over the weekend. It’s closed to the press. And while it may not be a great look for a sitting Supreme Court justice to speak at an ideological event, it’s not uncommon. Gorsuch has spoken at Federalist Society events in the past. In fact, all of the conservative justices on the Court currently have ties, in some form or another, to the conservative organization.

But part of what makes this year’s confab so intriguing are the prominent conservative names he will be sharing the program with.

You’ve probably seen this controversy with Joe Rogan and his podcast which now involves Neil Young, Joni Mitchell and a series of other musicians whose heydays were decades ago. (Not that there’s anything wrong with that! Most of the things I listen to are at least three or four decades old.) I noticed a Twitter exchange this morning that basically asked, ‘How is this controversy going on for so long?’ Maybe something is in the water. Or — given the centrality of COVID to this — in the air. But last night I had a similar thought: How are we still talking about this?

The whole thing seems more mundane and pedestrian than the way it’s being portrayed. Some of it is the focus on “disinformation” or “misinformation” in public discussions which traces back to or at least became ubiquitous after the revelations about Russian disinformation campaigns during the 2016 election.

Over the summer, New Hampshire Gov. Chris Sununu (R) signed a GOP-backed bill into law that mirrors many anti-Critical Race Theory bills that have passed in the last year or are still being considered in Republican states around the U.S. The text of the law, House Bill 2, the “Right to Freedom from Discrimination in Public Workplaces and Education,” is mild in comparison to other red states’ attempts at silencing discussions of issues like systemic racism and modern racial tensions in public schools.

We’ve discussed John Durham’s crooked and parodic investigation into the “origins” of the Russia probe a number of times before. It’s shaping up to have the outlines of the notorious special counsel investigations (technically office of independent counsel investigations) that led to the old independent counsel law being allowed to lapse in the late 1990s. Durham’s probe into the “origins” of the Russia probe has now gone almost a year longer than the Mueller probe itself.

As Josh Kovensky notes here, last week Durham revealed in a court filing that he had obtained new documents he’d never seen before relevant to his prosecution of Michael Sussman, who he indicted last year for lying to to the FBI. Then on Sunday Durham dropped a new filing in which he admitted that in fact he’d been told about the documents back in 2018.

Over the weekend ex-President Trump suggested he’d pardon the various insurrectionists now either facing charges or serving time for their role in the January 6th insurrection. He’s also increasingly open in justifying his attempt to overturn the results of the 2020 election. Those promised pardons are better seen as inducements to future acts than anything directed at those involved in January 6th.

SNIPPETS FROM A POLITICO interview with European Council on Foreign Relations senior fellow Kadri Liik.

Does Putin see Biden as weak — after Afghanistan? “I don’t think so. I think people in Moscow, at least people who matter and who are influential in foreign policy debates, their thinking was rather that Biden is smart. He’s trying to limit his frontlines. He’s not fighting each and every battle. Plus, Biden is someone who can speak on behalf of the West. During the whole Trump period, there was no one like that.”

A new episode of The Josh Marshall Podcast is live! This week, Josh and Kate discuss Justice Stephen Breyer’s retirement and some good news on the redistricting front.

You can listen to the new episode of The Josh Marshall Podcast here.

A few weeks ago I got onto one of the genealogy kicks I get on every few years in response to a new family history revelation. Since genealogy was in the air my wife decided to follow up on some information she’d discovered a few years ago about a relative who died in the Holocaust. My lineal ancestors were all living in the United States no later than 1920. Others arrived in the late 19th century; some arrived in North America as far back as the 1630s. My wife’s background is quite different. Her grandparents immigrated to Palestine in the 1920s and 1930s. Much of her family three generations back were murdered in Hitler’s Final Solution.

Some conservatives weren’t thrilled in the Reagan-era, but not in the overwrought way on display today.

The gist: Republicans don’t seem to have any satisfying path forward for carrying out their typical obstruction of a Democratic president’s SCOTUS nominee. So they’re tossing their outrage into a tired bucket: Whoever President Biden chooses as his pick to replace retiring-Justice Stephen Breyer will be a Radical Left Activist! The only discernible reason for this assumption is weird and racist: Biden today reaffirmed his campaign vow to appoint the first Black woman to the Supreme Court during his presidency, if the opportunity arose. It has.

And in a 50-50 Senate, Republicans are aware there’s not much they can do to Merrick Garland their way out of handing Biden a Supreme Court appointment win — Sen. Lindsey Graham (R-SC) admitted as much mere hours after Breyer’s retirement news broke yesterday. And so, instead, they’re getting a head start on the party’s 2022 messaging, vowing that Democrats will PAY in the Midterms … for doing exactly what Trump did three times during his presidency (i.e., part of his job).

The most important thing about the federal judiciary today is that it has been thoroughly corrupted by the judicial right. But there are other important things. And one of them is the capture of the federal judiciary by the elite legal academy. There was a time in our history when it was expected and frequent for elected politicians to be placed on the Supreme Court. Indeed, some of the best and most influential justices came out of the political world.