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[U] The Atlantic Has Laid Clarence Thomas’s Lunacy And Self-Loathing… Bare.

~ condor ~ 1 Comment

Updated: Mirengoff (on Sunday morning no less) complains about what he claims are dubious statistics in Justice Jackson’s dissent. That’s hilarious, when he has praised the outright lies (about the Freedmen’s Bureau law) described below by Justice Thomas. All law students learn not to mischaracterize the law — but Thomas does it often to serve his frothy far right political handlers. So shut it Paul. End update.

Several others have as well — but this is especially well-articulated by Adam Serwer, for The Atlantic. The purported “originalist” here ignores crystal clear — and ample — original records, faithfully preserved, from the 1860s, to this very morning. He does so, because he claims the Fourteenth Amendment was not designed primarily to protect people of color. Damn. [And… this will serve to mock Bill Otis’s latest nonsense.]

Do go read it all — but here dies his absurd version of “originalism“. The only original documents he wants to read… were written, and saved… by Klansmen:

…Midway through his concurrence with the Supreme Court’s decision to strike down affirmative action, Justice Clarence Thomas deploys one of the most absurd and baffling arguments ever put to paper by a justice.

In order to argue that the Framers of the Fourteenth Amendment did not intend to authorize racially specific efforts to alleviate inequality, Thomas finds himself forced to explain the existence of the Freedmen’s Bureau, which was reauthorized in 1866 by the same Congress that approved the Fourteenth Amendment. To square this circle, Thomas insists that the term freedmen was a “formally race-neutral category” and a “decidedly underinclusive proxy for race….”

“Freedmen” cannot be a “formally race-neutral category,” because American slavery was not a formally race-neutral institution. Moreover, an extensive historical record illuminates the intentions of the lawmakers who passed the Freedmen’s Bureau Acts. They certainly did not see the term freedmen as racially neutral, and they intended the bureau to protect the rights of Black people in the South, whether formerly enslaved or not. We know this because they said so; the insistence to the contrary is the result of conservatives projecting their version of “color blindness” backwards through time….

Now you know — this is why I say the Notorious KBJ had the better of the argument — by far. Onward.

नमस्ते

Well Now… Bitsy Goes… Full-On Bonkers. Yikes.

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I won’t rehash all the ways Ms. Stauffer is… both malevolent and idiotic, here. We’ve done that dance before. See here.

This from Betsy is just… preposterous. Quoting Tucker Carlson for anything, or the guy on whose watch the Capitol was taken (without noting that a claim of federal agents would be a self-serving and stupid lie, to deflect his own blame-worthiness, and perhaps complicity with the insurrectionists)… is not just bad journalism… it is propaganda.

Agit-prop, actually.

Erh… Sit down, Betsy.

Scott’s Defense Of It Rings Hollow — We May See That Preposterous Monroe, Louisiana Injunction Stayed (Set To The Side) By Monday Night, July 10, 2023

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The federal government / Biden Administration has — as we said — appealed all this, as of the evening of the Fifth. As of last night, it had moved for an interim stay, for very good reason (directly in spite of the loony bleating of Scott Johnson to the contrary):

Aside from the substantive errors of law we’ve mentioned, the Administration pointed out that the states (Mizzou, and Louisiana) waited over 40 days to even ask for an injunction, then took a year to “gather evidence.” Then, after more than a year, USDC Judge Doughty decided this was all a burning emergency (coincidentally on July 4 itself), and drove to the office — and issued the prelim. injunction, as an extraordinary measure. Where was the exigency, for a… full year, folks?

So, yes, a stay of this nonsense is plainly… warranted:

. . .Defendants respectfully request an administrative stay of the preliminary injunction for seven days to allow time for the Fifth Circuit to consider an emergency motion to stay and request for administrative stay. Defendants respectfully request that the Court rule on this motion by 12 p.m. CT on Monday, July 10, 2023 so that Defendants may promptly seek appellate relief, if necessary….

We shall see, but if the states have anything sensible in opposition, they must answer by 8 a.m., Bayou time, Monday. So there should be some scrambled Sunday night filings from those red states, and likely dripping with overwrought drama (of the political, not legal, sort) to boot, out of Mizzou’s — and Louisiana’s — AGs. Hilarious. [Bill Otis also makes bleating noises — largely incoherent — about the trial judge’s wisdom here, on Sunday night. Hilarious.]

Off now, to put baby girl on an overnight British Airways flight to Heathrow… smile.

नमस्ते

Welp. That Footnote Deserves… Its Own Post — Since It Seems Intentional — By Elon Musk. Damn.

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And, on a gorgeous Friday, as a largely insipid housekeeping note, it seems Elon Musk’s cavalier attitude about the inner tech which is running under the hood, at Twitter has once again… rendered official Twitter feed links, like that of NASA Social (as imaged in the circle on an example website, at right)… as a 404 link.

We shall see if he can fix it, or if we will all end up migrating to Mastodon, CounterSocial or least likely… the Instagram version, just opening. Yikes. We will leave the link there, through next week, in hopes Musk can get his act together, though I wouldn’t bet the ranch on it.

OTOH, it seems to have to do with his decision (over the Fourth, no less) to limit non-premium-paying account privileges, to link material off the site (like yours truly). So it may be a “feature” — not a bug. Ugh.

Well… The “Medicine” Should Start Right At Home, Boys…

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So, Paul laments the falling trust in American society this morning, along with his buddy Bill.

That is just… precious:

…Bill more than hinted at the answer when he wrote: “What I see now is a staggering amount of dishonesty and an even more staggering nonchalant acceptance of it….”

In my opinion, the nonchalant acceptance of dishonesty by the public has caused the staggering amount of dishonesty we’re witnessing….

The idea, guys, is you need to be… honest, too.

A Long-Term Follow-Up: Merck Files Its Brief In Third Circuit For Another Go-‘Round, On Fosamax® And Brittle Bone Warnings…

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This Fosamax® (alendronate sodium) litigation, involving (in part) non-impact hip fractures, and jawbone death (both alleged to be the result of long term alendronate sodium regimens, without at least annual drug holidays) has been to the Third Circuit at least twice before, and once, to the US Supreme Court. It returns now on the issue of whether Merck could have, or should have warned earlier. Merck’s brief runs over 50 pages. It argues that the FDA’s rules and letters prohibited it from changing its warning labels any earlier than it did.

And as long term readers know, of course, we have followed this litigation morass since 2008. [Earlier, if one counts the Wyeth pre-emption body of law, at the Supremes.] Here is some of the latest, from the Merck brief just filed:

…[T]he FDA told the Supreme Court it rejected Merck’s warning based on “lack of adequate data to support a warning,” not “because of the warning’s use of the term ‘stress fractures.’” A1524. Judge Wolfson reasonably “credit[ed]” the FDA’s representation about its own rationale. A102.

Plaintiffs claim the court erred by giving credence to “the government’s litigation position expressed years later in an amicus brief.” Br.58. That misstates the law. It is proper to “defer[]” to an agency’s amicus brief if, as here, “the agency was not a party to the litigation, and had expressed its views only in response to the Court’s request.” Kisor v. Wilkie, 139 S. Ct. 2400, 2417 n.6 (2019). Of course, courts do not “defer[] to an agency’s conclusion that state law is pre-empted,” but they do respect agencies’ “unique understanding of the statutes they administer.” Wyeth, 555 U.S. at 576-77. The FDA’s briefs explained its earlier actions in view of the statutory and regulatory background. That certainly warranted at least “some measure of deference….”

Ironically, Plaintiffs urge the Court to instead defer to the view of a single, former FDA official, Dr. Sharfstein, who joined an amicus brief on Plaintiffs’ side. Br.58. But, unlike the FDA’s briefs, Dr. Sharfstein does not speak for the agency; played no role in the underlying events; and did not file his amicus brief at the Supreme Court’s request. Plaintiffs also pretend the Supreme Court itself somehow resolved this issue in their favor in the facts section of its opinion. See Br.53, 58. As Judge Wolfson appreciated, that is not a plausible understanding of the Court’s decision….

Onward, with my eldest headed back to London for another three months this evening… with a sad smile, then.

नमस्ते

Scott’s Authored Three Pieces — On One Gram Of Coke?!

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I think we may safely say Powerliners… have become desperate: nothing connects this to the President. And nothing ever will. It was found while he was at Camp David.

So someone (maybe even a plant) dropped a one inch by two inch bag of less than a gram of powder that turns out to be cocaine. So what?

Scott is correct (about this much): there is almost zero chance any reliable evidence will ever connect this to even a low level staffer at 1600 Penn.

It is… nothing; Junior was regularly coked up on video calls from 1600, in 2019 and 2020, for official GOP appearance speeches.

But most of all — Tangerine faces an indicted 78 felony counts across two separate indictments, voted by one state grand jury, and the other by a federal grand jury.

One of those clearly sets out national security felonies.

Yep — the three stories on one baggie on the grounds… is sweaty desperation, as separately DeSantis is imploding — and the GOP cannot find any real option other than retreading what may be by then a jailed felon.

[To top it all off, the Freedom Caucus “mean girls” are in a cat fight: MGT has been kicked out of the clique by Boebert’s ditto-heads. Yep — national GOP winger Congressional caucuses are now no more than mean high school level lunch room table seating cliques, among dumb sociopaths.]

Hilarious!

No, Hinderaker — Not At All “Frustrating, For Democrats” –That Rasmussen Polling Is Expected.

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John thinks this means… something. It does not.

Rasmussen notoriously oversamples the hard right — and the retirees.

Even so, more of them think Trump is a crook.

Especially when you add in the “not sures”.

But — crazy thing! Only one of them faces a pair of felony indictments, each averring dozens of… 20 year felonies.

I forget — hey Hinderaker! — which guy is that?!

Exactly correct, John: Trump is a crook.

Hilarious.

Minor Power Alley Update — Zenara Patent Matter Was Settled In May of 2023…

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I’ve been derelict, with both graduations and vacations intervening, in getting this small update out: Merck and several other parties have consented to a judgment in Delaware federal court, finding that Zenara infringes the Merck patents.

This simply means that Hatch-Waxman periods will apply, for the first generic after patent expiry. [Mid 2022 backgrounder here; full PDF of the May settlement order here — and a bit:]

…As used in this Consent Judgment, (i) the term “Zenara Product” shall mean the drug product sold, offered for sale or distributed pursuant to Abbreviated New Drug Application No. 216842 (and defined in greater detail in the Settlement Agreement); (ii) the term “Licensed Patent” shall mean United States Patent Number 8,080,580; and (iii) the term “Affiliate” shall mean any entity or person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Zenara; for purposes of this definition, “control” means (a) ownership, directly or through one or more intermediaries, of (1) more than fifty percent (50%) of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or (2) more than fifty percent (50%) of the equity interests in the case of any other type of legal entity or status as a general partner in any partnership, or (b) any other arrangement whereby an entity or person has the right to elect a majority of the Board of Directors or equivalent governing body of a corporation or other entity or the right to direct the management and policies of a corporation or other entity.

Unless otherwise specifically authorized pursuant to the Settlement Agreement, Zenara, including any of its Affiliates, successors and assigns, is enjoined from infringing the Licensed Patent, on its own part or through any Affiliate , by making, having made, using, selling, offering to sell, importing or distributing of the Zenara Product.

Compliance with this Consent Judgment may be enforced by Merck and its successors in interest, or assigns, as permitted by the terms of the Settlement Agreement….

Now you know — onward, grinning on a warm, sunny Chicago noon-time stroll….

नमस्ते

The Purported USDC Judge Doughty “Order” Enjoining The Government On Social Media… Is A Comical Piece Of Self-Refuting Swiss Cheese Politics.

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The Monroe, Louisiana Trump-appointed judge made his actual short form written order public, yesterday. By night-fall, the government had filed a notice of appeal.

The order proves it and the 155 page opinion represent no more than a political manifesto by first listing a “no contact” proscription, and then spending two more later pages saying “well, except for LAWFUL contacts“.

In sum, it is so much swiss cheese — and not even internally consistent. The government may promote its policies, Doughty says, and urge the lawful suppression of dangerously false public health misinformation on the sixth page, even though the fourth page says it may not do so.

It also specifically excludes the government’s right to an evidentiary hearing (at page 6) before injunction. That alone is plainly reversible error. No one, public or private, may be summarily enjoined — without at least a preliminary evidentiary hearing — a notice and opportunity to be heard.

Yep, this will be stricken on appeal, very shortly (but due to its swiss cheese nature, it has very little real world effect — other than for GOP fundraising sound-bites).

And the Supremes have already impliedly agreed that pandemic misinformation may be directly suppressed, on social media (it so held while Tangerine was in office, by affirming FDA pronouncements and cease orders). So there’s that. Onward, grinning. Now you know.

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