Courtroom Cams and Elon’s Crusade

Wild happenings in Wisconsin.

By David French

Sep 7, 2023

Exciting news from host-in-absentia Sarah Isgur. Partisan gerrymandering. Cameras in courts. David French and guest-host David Lat have so much to cover in so little time. Here we go:

-New arrivals

-Purdue Pharma update

-Should the Trump trials be televised? (The Davids disagree)

-Wisconsin’s judicial elections mess

-Alabama’s ongoing redistricting wars and systemic racism

-Elon Musk goes after the ADL

Show notes:

–2020 DOJ press release on Purdue Pharma and the Sackler Family

–Just Security on Judge Jones’s supplemental briefing order

–Caplan v. Trump (Section 3 ruling)

–Charlie Sykes on the Wisconsin Supreme Court drama

–Singleton v. Allen (Alabama Voting Rights Act case)

–David Firestone on Alabama Voting Rights Act case

–Elon Musk blames ADL for lost revenue (NBC)

–Musk blames Latham for San Francisco’s problems. Huh? (Reuters)

–David French’s NYT column on Texas age-verification law

–AO episode featuring Ari Cohn on age-verification laws

–Video version of this episode

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About David French

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.

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Comments (103)

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Cmires 8 months ago

I am guessing I am just piling on but David the Junior either just misspoke or is perpetuating a misread of the ruling in the original Alabama voting case ruling. The ruling did not require two majority minority districts. It left things quite up in the air with the “or something quite close to it” appendage. So the court obviously could have required two majority minority districts but did not. Why is the interesting question. Not to debate individual numbers but I think almost everyone would read it to say that one 50% black district and one 49% district would be allowed. So where does this end? Who knows. So was the original opinion just being too cute or clever or was there legal significance in play? We now seem to have transitioned, via the lates opinion to something called Black Opportunity Districts. An even less helpful phrase which is open to a wide range of definitions. Guess there is more to come.

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Quinntheeskimo98 8 months ago

Congratulations Sarah! wishing you the best!
I'm a WI voter who is 100% against judicial elections, I literally wrote in Judge Judy in the heated April election just as a middle finger to the whole system, I made the argument repeatedly and emphatically that the job of a judge/justice is to interpret and follow the law, not to be a partisan enacting the will of the majority that will give them power, and both candidates were corrupted in that sense. My opinion is just backed up by this crazy scheme to try to oust the justice by the state legislature, the system is broken and needs an overhaul, 100% with David F on this.

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Sean Smith 8 months ago

Congratulations Sarah! I'm elated that all went well and look forward to having you back.

RE elected judges--I'm generally down on the practice for a number of reasons. For one thing, most voters are ridiculously uninformed about any given judge's performance or even their basic competence. Unless they're carefully scrutinizing court transcripts, they're more or less completely clueless. This is compounded by the extreme limitations the ethics rules place on what judges can say when campaigning for office. These rules have perfectly reasonable rationales, but nonetheless limit the information voters can glean to such a degree as to make differentiating between candidates virtually impossible, which essentially secures a massive incumbent advantage. Finally--and while I can only speak for Oregon I'm sure this happens in many other states as well--judges often retire before the expiration of their terms, enabling governors to appoint political hacks/well-placed cronies as their replacements with no election. Obviously this gives them an instant incumbent advantage the first time they have to face voters (and every subsequent time). Review by legislative bodies of governor appointees never gets to happen.

I'm fine with looking into alternatives to lifetime appointments for judges. Perhaps they should be appointed for a single term of, say, 10 or 20 years. That way you get experienced jurists without being stuck with them forever. But electing them every 4 or 6 years really does nothing for accountability.

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OldschoolACLU 8 months ago

If you can ever take on some general topics of cases that don't currently exist, I'd like to know more about 1. the legality of undocumented immigrants, non-citizens voting, as various politicians have brought up in ny and also 2. if there's any argument that might stand a chance against the implementation of congestion pricing in nyc, where they are about to toll local roads.

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Chucky Bob 8 months ago

The real question is: did Sarah keep her wordle streak going despite giving birth? Inquiring minds want to know.

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Jrtownson 8 months ago

I really wish David would discuss systemic racism with a credible sceptic like Glenn Loury. I would love to hear those two debate the issue. Rather than focus on the sins of the past Loury makes a compelling case that emphasizes black development in order to close social and economic gaps. David, however, is not very convincing. What is the government to do with an unracist individual who happens to live/work/go to school in an institution that was explicitly racist decades ago? Redlining seems to be the most frequent example referenced by systemic racism proponents; I recall John McWhorter saying there were more whites impacted by redlining than blacks? Is this true?

Would love for Dispatch to do a fact based deep dive on the redlining/systemic racism issue.

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Bill Dyer (aka Beldar) Edited 8 months ago

I'm again abusing Dispatch Media bandwidth to re-post here a comment I left on a recent article from Mr. Williamson about the ongoing Texas Senate impeachment trial of that festering sore on the legal profession known as Texas Attorney General Ken Paxton. Mr. Williamson had gotten into a discussion with another commenter about the crusty myth that Texas somehow retained a right to split itself into several states when it was admitted to the Union in 1845. My added two cents:

-----------

Whatever might have been in or around 1845-1846ish, the Act of March 30, 1870, to [re-]admit the State of Texas to Representation in the Congress of the United States left moot and superseded.

And it is in fact INCREDIBLY RELEVANT to the current discussion of the possibility that Donald Trump is constitutionally ineligible for public office under Section 3 of the Fourteenth Amendment!

Indeed, submission to Section 3 was expressly referenced and in a manner which confirmed its incredible importance and materiality: Cooperation with Section 3's enforcement was a DEALBREAKER, without which Texas couldn't return to the Union:

===begin quote (boldface by Beldar)===
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 𝙏𝙝𝙖𝙩 𝙩𝙝𝙚 𝙨𝙖𝙞𝙙 𝙎𝙩𝙖𝙩𝙚 𝙤𝙛 𝙏𝙚𝙭𝙖𝙨 𝙞𝙨 𝙚𝙣𝙩𝙞𝙩𝙡𝙚𝙙 𝙩𝙤 𝙧𝙚𝙥𝙧𝙚𝙨𝙚𝙣𝙩𝙖𝙩𝙞𝙤𝙣 𝙞𝙣 𝙩𝙝𝙚 𝘾𝙤𝙣𝙜𝙧𝙚𝙨𝙨 𝙤𝙛 𝙩𝙝𝙚 𝙐𝙣𝙞𝙩𝙚𝙙 𝙎𝙩𝙖𝙩𝙚𝙨: 𝙋𝙧𝙤𝙫𝙞𝙙𝙚𝙙, That before any member of the legislature of said State shall take or resume his seat, or any officer of said State shall enter upon the duties of his office he shall take and subscribe and file in the office of the secretary of State of Texas, for permanent preservation, an oath or affirmation in the form following: "𝗜, ____ ____, 𝗱𝗼 𝘀𝗼𝗹𝗲𝗺𝗻𝗹𝘆 𝘀𝘄𝗲𝗮𝗿 (𝗼𝗿 𝗮𝗳𝗳𝗶𝗿𝗺) 𝘁𝗵𝗮𝘁 𝗜 𝗵𝗮𝘃𝗲 𝗻𝗲𝘃𝗲𝗿 𝘁𝗮𝗸𝗲𝗻 𝗮𝗻 𝗼𝗮𝘁𝗵 𝗮𝘀 𝗮 𝗺𝗲𝗺𝗯𝗲𝗿 𝗼𝗳 𝗖𝗼𝗻𝗴𝗿𝗲𝘀𝘀, 𝗼𝗿 𝗮𝘀 𝗮𝗻 𝗼𝗳𝗳𝗶𝗰𝗲𝗿 𝗼𝗳 𝘁𝗵𝗲 𝗨𝗻𝗶𝘁𝗲𝗱 𝗦𝘁𝗮𝘁𝗲𝘀, 𝗼𝗿 𝗮𝘀 𝗮 𝗺𝗲𝗺𝗯𝗲𝗿 𝗼𝗳 𝗮𝗻𝘆 𝗦𝘁𝗮𝘁𝗲 𝗹𝗲𝗴𝗶𝘀𝗹𝗮𝘁𝘂𝗿𝗲, 𝗼𝗿 𝗮𝘀 𝗮𝗻 𝗲𝘅𝗲𝗰𝘂𝘁𝗶𝘃𝗲 𝗼𝗿 𝗷𝘂𝗱𝗶𝗰𝗶𝗮𝗹 𝗼𝗳𝗳𝗶𝗰𝗲𝗿 𝗼𝗳 𝗮𝗻𝘆 𝗦𝘁𝗮𝘁𝗲, 𝘁𝗼 𝘀𝘂𝗽𝗽𝗼𝗿𝘁 𝘁𝗵𝗲 𝗖𝗼𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻 𝗼𝗳 𝘁𝗵𝗲 𝗨𝗻𝗶𝘁𝗲𝗱 𝗦𝘁𝗮𝘁𝗲𝘀, 𝗮𝗻𝗱 𝗮𝗳𝘁𝗲𝗿𝘄𝗮𝗿𝗱 𝗲𝗻𝗴𝗮𝗴𝗲𝗱 𝗶𝗻 𝗶𝗻𝘀𝘂𝗿𝗿𝗲𝗰𝘁𝗶𝗼𝗻 𝗼𝗿 𝗿𝗲𝗯𝗲𝗹𝗹𝗶𝗼𝗻 𝗮𝗴𝗮𝗶𝗻𝘀𝘁 𝘁𝗵𝗲 𝘀𝗮𝗺𝗲, 𝗼𝗿 𝗴𝗶𝘃𝗲𝗻 𝗮𝗶𝗱 𝗼𝗿 𝗰𝗼𝗺𝗳𝗼𝗿𝘁 𝘁𝗼 𝘁𝗵𝗲 𝗲𝗻𝗲𝗺𝗶𝗲𝘀 𝘁𝗵𝗲𝗿𝗲𝗼𝗳, 𝘀𝗼 𝗵𝗲𝗹𝗽 𝗺𝗲 𝗚𝗼𝗱"; or under the pains and penalties of perjury (as the case may be); or such person shall, in like manner, take, subscribe. and file the following oath or affirmation: "I, ____ ____, do solemnly swear (or affirm) that I have, by act of Congress of the United States, been relieved from the disabilities imposed upon me by the fourteenth amendment of the Constitution of the United States, so help me God"; or under the pains and penalties of perjury (as the case may be); which oaths or affirmations shall be taken before, and certified by, any officer lawfully authorized to administer oaths.
===end quote===
link: https://www.tsl.texas.gov/ref/abouttx/secession/30march1870.html

The act goes on to require Texas to submit to other post-Civil War constitutional amendments. But the prominence, and the spectacular LEVEL OF DETAIL commanded in this legislation enabling Texas' return to the Union, is dramatic testimony to the overriding importance the Framers of the Fourteenth Amendment placed upon excluding from state elected public office those who'd taken an oath of public office but then become an insurrectionist or rebel.

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Richard Maxton 8 months ago

So good, I "liked" it twice.

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Phil H 8 months ago

Congratulations to Sarah and to Husband Of The Pod Scott, for the birth of Case! (Are we still calling him "Popcorn?")

Still working my way through the podcast, but the Wisconsin Supreme Court Chief Justice is definitely the poster child for what can happen when you elect state supreme court justices.

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EL 8 months ago

The discussion of the impact of judicial elections brought to mind a paper by Kyung H. Park called "The Impact of Judicial Elections on the Sentencing of Black Crime." He found that, "incarceration rates rise by 2.4 percentage points in the final six months of the election cycle, but only for black, not white felons. These effects are more pronounced in districts where the median voter is expected to have higher levels of racial prejudice toward blacks." The incentive to try to cater to outcomes that voters want (or that have appealing optics to the local electorate) rather than interpreting the law in a principled way doesn't seem great. Ideally, voters would value qualified, principled judges AND be equipped to identify them. The latter seems like a tall order for the average person, even one that doesn't embrace an ends-justify-the-means mentality, which I think is a good argument for outsourcing the selection of judges to elected representatives who have the bandwidth and resources to find qualified judges who have a philosophy that aligns with the values of their constituents.

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Chany Ockert Edited 8 months ago

On the homelessness issue in the West. It's not just a California problem or a Western blue state problem. It's a problem across both blue and red states in the West. In a very red county (Flathead county, Montana) with 100,000 people with limited drug addiction and almost non-existent mental health services, we have a housing deficit of 3,000 units. Considering that the median *household* income of $66,000, the median home sold price was $616,000; out of reach for families here. Long-time locals make up the majority of the homeless in our area.

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