On this week’s episode of The Brief, hosts Markos Moulitsas and Kerry Eleveld were joined by Daily Kos senior political writer Joan McCarter and Elie Mystal, justice correspondent at The Nation, to discuss the U.S. Senate vote on the infrastructure bill, the new anti-abortion law in Texas, the future of Roe v. Wade, and expanding the Supreme Court.
The fate of the infrastructure bill hangs in the balance as moderate and centrist Democrats continue working to come to an agreement on the final provisions and language. McCarter has written extensively about the deliberations happening behind closed doors and the political optics involved throughout this process, and she shared her thoughts on the viability and estimated timeline of the bill. Moulitsas asked her, “What is the prognosis for [the infrastructure bill]? How much can we expect to actually happen this month, if any of it, given the 50/50 Senate?”
“There is going to be a decision on what to do about government funding, and I don’t think anybody is going to have the stomach for government shutdowns,” McCarter said. “It won’t be actual government funding—it’ll be another continuing resolution, and they’ll keep kicking that can down the road.”
That could lead to delays on the infrastructure package all the way through Thanksgiving or Christmas, she added.
“This would be terrible politics for the Democrats, but it wouldn’t be good politics for the Republicans, either. This is political gamesmanship … particularly on the Republican side,” Eleveld noted. “This used to not be a question. Bipartisan agreement that you just raised the debt limit, because if you didn’t, it was going to be a disaster for the country … just to be clear, this would be a huge effing deal if the debt limit weren’t raised.”
“Not just for us, but for the whole global economy,” McCarter added, “because if we’re not paying our foreign debts, that’s a big deal.”
The trio also discussed what they dubbed the “sabotage squad,” representatives and senators who seem hellbent on holding back the progress of this bill—a group that includes Democratic Sens. Joe Manchin and Kyrsten Sinema. This will require House and Senate Dem leadership, in particular Nancy Pelosi and Chuck Schumer, to corral members and ensure the vote moves forward, McCarter emphasized.
Using a “shadow docket,” the U.S. Supreme Court has let the new Texas anti-abortion law (also known as SB8) stand for now. Mystal joined the conversation to explain the ramifications of letting this law go into effect.
Moulitsas asked Mystal what that really means for the future of abortion rights. According to Mystal, it means that Roe v. Wade is functionally dead, because while the government is not restricting the right to choose, they are essentially encouraging the public to do that for them: “Texas has … [outsourced] enforcement of its unconstitutional ban to private citizens, [essentially] bounty hunters … you can sue a Texas abortion provider, or aider, or abetter, which could include a receptionist or an Uber driver, because that is a civil enforcement.”
Eleveld expressed horror and anger at the concept of allowing and enabling citizens to help criminalize those who seek abortions:
There’s nothing more lawless or disorderly than vigilante justice on abortion. Having a bunch of private citizens decide how and when they’re going to target certain people ... I mean, that is a fundamental breakdown in the law if they let it happen, it is just a fundamental breakdown. It’ll be so disorderly. You’re a hair away from the whole legal system just disintegrating if that’s what you’re going to allow to go into effect without raising a fist.
While the law in Texas went into effect, the groundwork to end abortion rights has ben planned out for years now. What’s more, Mystal added, the Supreme Court was already poised to strike down Roe v. Wade based on an entirely different law:
This Texas law is a cheeky attempt to get around Roe v. Wade, but Mississippi already has a direct challenge, where they’ve asked in the brief to the Supreme Court to overturn Roe v. Wade, and the Supreme Court is due to hear that case sometime this year or early next year and will most likely decide on that in June … The fact that the Supreme Court even wanted to hear that case is an indication that it’s going to overturn the lower courts and allow the Mississippi law to go through, which would be a functional revocation of Roe v. Wade.
So even if you think the Supreme Court might eventually get around to outlawing the Texas bounty system … the idea that the conservative justices want to overturn Roe is already baked into the system, because they already had a case to do that this term. That’s not fearmongering, that’s not hyperbole. The case is called Dobbs v. Jackson, and it is going to be heard by the Supreme Court this term.
The Biden administration’s lack of action to stop this law from going into effect has been sorely disappointing, Mystal noted, and it has no excuse, as the administration cannot claim that this was a surprise:
It is unacceptable for the administration to be caught flat-footed. This Texas law did not come out of the blue—it was passed in May. No, no, no … There are things Biden can do if he’s willing to use the power of his office aggressively.
Mystal also feels disappointed by Garland’s lack of strong action on the issue, as he believes the attorney general could have done so much more to prevent this from happening. It’s also reflective of much of the Democrats’—especially centrist Democrats’—overall lack of urgency and action on issues that their base has repeatedly raised their voices on, he said: “I’m of the mind that Democrats will always say they need one more vote … [if it’s not] Joe Manchin and Kyrsten Sinema, Chris Coons and Dianne Feinstein would rise to take their place … They will always find a way, they will always find an excuse to not use the power the people gave them.”
Biden was also lukewarm on court packing during the primaries—a sentiment further demonstrated by his approach to the commission he put together to explore the option of court expansion. “He put none of those people on this precious little commission, filled it with law professors … it was a commission designed to suck the energy right out of court expansion,” Mystal explained. “When you step back and look at the levels to which centrist candidates will go to to protect moderation and centrist institutions over justice, it becomes frustrating.”
“With Roe v. Wade being functionally overturned, are we resigned to having a patchwork of laws [in various states] … Is that really the future we have to look forward to?” Moulitsas asked.
Mystal offered a realistic prognosis of the situation:
I want to believe there’s still hope … But we are at a point where the people have to demand better from their government. There are some people on the left who think that this is going to backfire on Republicans, and this is going to activate people—and especially women—to vote against Republicans. And I would just caution, 51%+ of white women in this country voted for Donald Trump … [their mindset is that ‘I will be fine because] it’s still going to be legal for me. Because I’m still going to have the funds and resources to go to New York or Canada, or send my daughter to Canada, or my mistress to Canada.’
This kind of brazen attack on women’s rights could [change the minds] of some Republican-aligned white women. But at the end of the day … if Democrats do not empower minorities, people of color, women of color … then the Republicans have won already.
Eleveld thinks that suburban women of color represent a huge untapped base to help turn the tide against these draconian laws:
It’s not just white women, though. It’s suburban women who could be the difference. And suburban women is a much bigger group than just white women—suburban women defecting from Trump … and basically becoming Democrats.
I’m talking about a fairly well-to-do group of women who are a broad rainbow of colors who will get out to vote and this could be a huge motivator for them. And we, in the upcoming election, not only have to get those folks to the polls, because that is where the congressional majorities will be decided. So we have to get the base, we have to get those folks to the polls, and then hopefully peel off somewhere some of these other folks who would normally vote Republican.
“You also have to give those women a real choice,” Mystal said, calling out the fact that many Democrats are afraid to even say the word ‘abortion,’ calling on party members to take a principled stand and urging them not to waver—especially when the situation is so dire. “You have to give these people a clear distinction of what the Democratic Party stands for, and what it stands against,” he pleaded.
Moulitsas and Eleveld agreed and believe that these issues, while dire, could possibly have a silver lining in motivating young people and other groups that are not regular voters to get out to the polls.
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