The life and death of the party

Last week's converging of the Electoral College in states across the land to vote for president and vice president as constitutionally prescribed and as the majority of state voting populations dictated in 51 separate elections ultimately proved perfunctory, orderly and dull. Usually lasting no more than 90 minutes, these meetings are rigorously formal to the point of tedium, anticlimactic in the sense everybody knows damn well who won the election. Under normal circumstances, the broader public by this time is more focused on everything ranging from the peaceful transition of power so wonderfully unique in the United States of America, to Christmas shopping, to the prospect of a new year with its many possibilities and challenges and blessings.

And then there's Texas.

While press reports indicate most Electoral College votes across the nation proved placid affairs, my decades of newspaper experience covering the Republican Party of Texas and the partisan activists who increasingly set its rancorous tone and chart its destructive course left me absolutely confident they would again prove ugly outliers. Anyone who knows some of these party activists through their participation in legislative committee hearings, their resolutions and hijinks during state and county conventions and their behavior during party meetings just knows they're going to do something to aggravate matters. And for lots of reasons: Because they can't quite get over the fact Texas was once a republic and should still be one. Because they equate patriotism with increasingly right-wing, undemocratic radicalism. Because, thanks to the Lone Star/John Waynesque, taller-than-reality persona of feisty independence, swaggering arrogance and country-fried wisdom, they assume privileges that other states in their view lack. Their unhelpful contributions to a bitterly divided nation contending with a pandemic crisis and now a cyber-attack by the Russians on our national security infrastructure bring to mind British Prime Minister Winston Churchill’s 1944 wartime radio address observations about “the little folk who exist in every country and who frolic alongside the juggernaut car of war to see what fun or notoriety they can extract from the proceedings.”

Opportunists and grandstanders in party ranks, social media, talk radio and cable TV have over the decades capitalized (in both senses of the word) on Republican presidential candidate and incendiary pundit Pat Buchanan's "pitchfork brigade" of the 1990s; the briefly (oh-so-briefly) nonpartisan tea-party movement of 2009 and beyond that demanded Republicans never compromise and always fight and obstruct and impede, even if this means problems never get solved and future generations must suffer; and the unapologetic Trumpist populism of xenophobia, isolationism, authoritarianism and deceit of present day. Amidst this bunch, vaccination is viewed with cynicism bordering on Deep State conspiracy, even though the alternative yields sickness, contamination and agonizing death; latter-day climate change is dismissed as a completely natural turn of events or a hoax concocted of falsified or misinterpreted data, meaning that Republicans need not worry about addressing rising coastal waters, punishing droughts and increasingly violent storms; immigrants are stereotyped as raping, murdering hordes seeking to change our way of life and vote in our elections, even if statistics support none of this and the Texas economy desperately needs immigrants, legal and otherwise, to do jobs many U.S. citizens will not stoop to do; saving the lives of the innocent unborn is embraced as a sacred cause, even as those Americans born into poverty and despair are viewed with utter indifference, even contempt; unrestrained federal spending is viewed as a threat to our progeny, except when it's a Republican presidential administration doing the unrestrained spending (and tax-cutting); gun rights demand the steady relaxing of regulations while voting rights warrant increasing regulation and hardship and scrutiny, especially for people who don't quite look like us; and secession is viewed as a worthy and constitutional option if the federal government and now other states don’t mind and heed and respect Texas Republicans — a traitorous passion lately pressed by the newly elected chairman of the Republican Party of Texas and cleverly labeled “Texit” in politically correct deference to what some Britons seek to do.

Many of these rank-and-file Republican activists — not all but way too many of them — offer strutting studies in proud eccentricity and stunning self-delusion, conjuring the type of anxiety and dread you feel in throwing a party for the gang at work when you know this means inviting the workplace braggart who almost certainly will attend and swagger and bellow and insult before finally defecating in the punch bowl.

And so Monday instead of simply fulfilling their constitutional duties and casting our state's 38 Electoral College votes for President Trump's re-election, they did something none of these electors would ever tolerate another state's electors doing without great fits of outrage and protest and indignation: They passed a resolution telling legislators in four battleground states how to conduct their electoral affairs to ensure Trump's victory, even though certified election results and Electoral College tallies demand otherwise. And if the legislatures of those states — Georgia, Pennsylvania, Michigan and Wisconsin — failed to pick electors to supplant those duly charged with voting for Democratic presidential candidate Joe Biden, then Republicans in their congressional delegations must object sufficiently to those tallies on Jan. 6 to keep the votes of "unconstitutionally appointed electors" from counting.

In short, Texas electors resolved to continue the quixotic fight Texas Attorney General Ken Paxton waged in his five-day lawsuit this month, seeking to invalidate the votes of millions of voters in other U.S. states, all tainted (Paxton claimed) by election irregularities and executive actions, even though Paxton sidestepped the fact his state's own governor and supreme court are guilty of the very same things. Coming atop dozens of other unsuccessful lawsuits choking state and federal courts on President Trump's behalf, the Paxton suit is astounding in its audacity. However, President Trump was pleased and Paxton, under indictment for state securities fraud and under federal investigation for bribery and abuse of office to help a campaign donor, clearly raised his profile with Trump supporters in Texas and beyond. All of which may aid him personally in the future.

The Supreme Court of the United States quickly declined to consider the Paxton case, a decision that speaks volumes about the suit and possibly General Paxton’s repute given that the high court in some minds might ordinarily be predisposed to help the Trump rebellion: It after all has a 6-3 conservative majority, complete with three justices appointed by none other than President Trump. Three things the court might well be telling Paxton and those who support one state's pressing a federal court to invalidate the votes of other states: First, the suit is completely contrary to the principles of federalism in which Republican lawmakers have insisted their federal court appointments be steeped; second, it violates an ironclad constitutional agreement the Founders made to allow the individual states to manage their own elections; third, Texas' standing to sue because of its concern over the balance of power in the U.S. Senate (and the vice president who can break tie votes) is too off the wall for even this court to seriously contemplate.

Demonstrating the tendency of most activists when the limelight beckons, the Texas electors made clear they were spoiling for a fight and ready to rumble. Angry with the high court's unanimous decision a few days earlier, most applauded elector Mark Ramsey's resolution obligingly charting the next steps for state and federal lawmakers in other states, even though concerns were properly raised as to whether passing resolutions in an Electoral College meeting exceeded their constitutional authority. Matters quickly spiraled downward as they debated whether the resolution should at the very outset condemn the Supreme Court for "moral cowardice" as proposed. For instance, elector Matt Patrick bolstered his arguments for keeping the insult in place with a heady mix of hearsay several times over and social-media rumormongering. He spoke:

"I'd like to leave the words in there. I wish I could give you a specific citation for this, but I didn't make note of it because it is something I read this morning and I didn't know we would be presenting this amendment yet. There's a report available online that was written by someone who is a current staffer for one of the Supreme Court justices. I will describe the report that I read and you can make of it what you will. He said the justices, as they always do, went into a closed room to discuss cases they are taking or to debate. There's no phones, no computers, no nothing. No one else is in the room except for the nine justices. It’s typically very civil. They usually don't hear a sound, they just debate what they're doing. When the Texas case was brought up, he said he heard screaming through the walls as [Chief] Justice [John] Roberts and the other liberal justices were insisting that this case not be taken up. The reason, the words heard through the wall when Justice [Clarence] Thomas and Justice [Samuel] Alito were citing Bush v. Gore, from Justice Roberts were, 'I don't give a ---- about that case! I don't want to hear about it! At that time we didn't have riots!' So what he was saying was that he was afraid of what would happen if they did the right thing. And I'm sorry, but that is moral cowardice. And we in the [State Republican Executive Committee] — I am an SREC member — we put those words in very specifically because the charge of the Supreme Court is to ultimately be our final arbitrator, our final line of defense for right and wrong. And they did not do their duty. So I think we should leave those words in because I want to send a strong message to them."

Frisco attorney and elector Jim Pikl, who according to Texas Monthly just a few weeks ago tweeted that conservatives will never win unless they "cheat" as Democrats do, now cautioned against vehemence in maligning high justices in the resolution at hand:

"I've been a constitutional appellate civil rights lawyer for 35 years, been in front of the United States Supreme Court nine times. Sending a message like this to a body of legislators or judicial officers is not going to get the attention you want it to get. Nobody knows what happened in that conference room on purpose. 'Hearing yelling' is triple hearsay or quadruple hearsay about what was going on in that room — you cannot make your decision on that basis. You just can't do it. This body, if it passes a resolution, and I'm not even sure it can, it needs to be the resolution of this body, not infected by what five other people maybe someday someplace said about what was happening at the Supreme Court. We either adopt the words 'moral cowardice' — which are not legal terms, by the way, they're emotional terms — or we take those words out. The decision from the Supreme Court was very short — you can read it, it's one page— just said: 'We rejected it because [Texas doesn't] have standing,' That's a legal concept. I think there's just a few people in this room that understand what 'standing' is better than I do. It's a standing issue, it's a legal issue, it's not a moral issue. Plus I think there were a lot of reasons why [the justices] did it the way they did it, which might actually be favorable to us. So I would not put inflammatory language in any kind of resolution leaving this room that’s going out to a body of judicial or legislative officers across the state because it makes us look childish, impertinent and angry. And that is not the signal the great state of Texas should send."

In the end, the amendment to amend the resolution striking "moral cowardice" was adopted 29 to 9 with one absent (which adds up to more than 38 electors, but, heck, who cares?) and so the newly amended resolution was adopted 34-4. Ramsey showed hostility at fellow elector David Bruegel's repeated concern that passing resolutions in an Electoral College setting is not authorized by the U.S. Constitution or state law: "Deliberative bodies can go almost anywhere they want to go, provided there is not some prohibition against it. There's no prohibition against this badly needed resolution. America has been termed a shining light on a hill. When other countries have faced massive election fraud, the end result more often than not has been a collapse of their rights, a collapse of their government, a collapse of their economies and an inevitable slide towards tyranny."

If context matters (and it always does), then a few more notes serve to show how Texas Republicans are willing to place the rights and even the lives of others in peril to subvert the Constitution and ensure Trump another four years in power. The day after Texas electors concluded their duties, an ex-captain of the Houston Police Department was arrested in connection with an Oct. 19 incident in which he reportedly ran off the road and assaulted an air-conditioning repairman driving a vehicle supposedly crammed full of hundreds of thousands of bogus ballots. Turns out the ex-cop was part of an investigative squad hired by the Texas-based Liberty Center for God and Country, whose CEO is Republican activist Steve Hotze. He's the God-fearin’ guy who joined Republican Party of Texas chairman Allen West and Texas Agriculture Commissioner Sid Miller in suing Texas Gov. Greg Abbott for the latter's executive order expanding early voting in Texas to "implement health protocols to conduct elections safely and to protect election workers and voters." Hotze is also the self-styled patriot who sought to invalidate the ballots of some 127,000 Harris County voters because they used a drive-through voting venue during early voting — a lawsuit ultimately rejected by the rigorously conservative U.S. Court of Appeals for the 5th Circuit. Not surprisingly, Hotze has described the allegations against his gun-brandishing investigator “bogus,” though authorities in Harris County obviously see it differently. “He crossed the line from dirty politics to commission of a violent crime and we are lucky no one was killed,” Harris County District Attorney Kim Ogg said last week of the errant ex-lawman. “His alleged investigation was backward from the start — first alleging a crime had occurred and then trying to prove it happened.” Former Capt. Mark Aguirre, 63, now stands charged with aggravated assault with a deadly weapon, a second-degree felony punishable by up to 20 years in prison. Old-fashioned justice suggests Hotze also deserves criminal charges in all of this, but such is the fortune of the wealthy and the privileged who regularly soar untarnished and unaccountable above the misdeeds and carnage they so often set into motion.

Incidentally, the air-conditioning repairman's truck was filled with ... air-conditioning parts and tools. And so another Trumpian conspiracy without evidence goes up in smoke.

One final note as we witness the Republican Party’s steady mutation into a seditious and violent force in America with the full complicity of the 126 U.S. House Republicans who backed the Paxton suit this month: A day after the Texas electors met, voted, condemned the high court and advised others to pursue treasonous or at the very least subversive ends, Steve Vladeck, the insightful Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, responded to an elected county official who, upon reading Vladeck’s critical analysis of the Dec. 7 Ken Paxton lawsuit (upon which Texas electors drew inspiration), castigated him for not keeping a scholarly open mind about election allegations. Vladeck wrote a wonderful response that in its entirety probably won't get the exposure it deserves. Still, a powerful excerpt is appropriate. After again explaining the embarrassing flaws and truck-sized holes in the Paxton lawsuit, Vladeck went on to the broader issue at hand, one to which the Texas electors and many others in Texas and beyond seem oblivious.

"As for your broader claim of fraud and other improprieties, well, I just don't think I'm going to convince you that you're wrong. But let me just point out that the Trump campaign has had every possible opportunity to actually prove these claims in court — in Georgia, in Wisconsin, in Pennsylvania, in Michigan, in Arizona and in Nevada. As a lawyer and an elected official, I would hope that you'd appreciate the difference between allegations and proof — and the significance of the fact that the campaign has been unable to substantiate any of these claims in court. Would you really have the election results undone because of unproven allegations? Who should be the arbiter of such things if not the highest courts in each state? Instead, the real argument, at the end of the day, is not that there was widespread fraud; it was that the states — including, I should point out, our own state of Texas, in which Gov. Abbott unilaterally extended early voting — tried to make it easier and safer for lawful, registered voters to cast their ballots in the middle of an unprecedented pandemic."

None of which will pierce the tightly coiled, fanciful narratives to which those Republican Party activists making up Texas electors subscribe. Having relished another satisfying "Alamo moment," they have for the moment retired unscathed from the field of battle, their duty done and more.

Ken Paxton hits the big time

Newspaper tradition has long held that editorialists and columnists writing for the daily opinion page not inform voters of the stupid decisions the latter have made at the ballot box, even if colossally, unforgivably stupid. Presumably this rule shows respect for the wisdom and prudence of the American voter, often enough a dear subscriber and sometimes even a cherished advertiser. Mind you, this tradition doesn't mean if the voters elected someone who has demonstrated and continues to demonstrate corruption or incompetence or flat craziness, you don't zealously chronicle this and point out regularly how corrupt or incompetent or crazy this elected person was and still is. Just don't tell the voters they screwed up big-time in electing him or her in the first place.

It's a journalistic tradition by which I have generally abided. The exception: The election of Ken Paxton as Texas attorney general in 2014. Last week once again verifies my decision, more than ever.

I've long been unable to resist pointing out to Central Texans how they had plenty of evidence this guy was not above corruption and two-facedness when he was a mere Republican candidate for the post. But instead of showing discernment, Texas Republican voters elected Paxton over more credible Republican candidates in the 2014 GOP primary election. Allegations at the time were that Paxton, as a state senator, went around encouraging people to buy stock in a tech company without revealing he was being compensated by that company. Among the people the McKinney Republican reportedly deceived were friends, business associates, law firm clients, even a fellow lawmaker.

One might think voters would have more sense than to elect to such a critical, crime-busting post someone with ethical and legal questions buzzing around him. Yet Paxton had the tea party seal of approval in 2014 and his two Republican rivals didn’t. So he won the primary election, taking 44 percent of the statewide GOP vote against Dan Branch and Barry Smitherman, then 63 percent against Branch alone in the runoff (and 68 percent in McLennan County, possibly in recognition of Paxton’s receiving two degrees from Baylor University, one in psychology, the other in business). And because he was a Republican, the party faithful blindly backed Paxton in the general election by some 20 points, presumably figuring a dishonest Republican is better than an honest Democrat, even one named Sam Houston. Not one major or mid-sized newspaper endorsed Paxton. Since then, through various legal and political maneuvers, Attorney General Paxton has managed to long delay the very justice and accountability for himself that he selectively demands of others.

In an interview, Houston highlighted the challenges of running against Paxton and the Republican Party at the time. “And it’s hard to get attention for a down-ballot race,” he told me in 2014. “It’s hard to get money when you’re not already a state senator or state representative and you’re running as a Democrat. But that’s why I’m sitting with you and talking to Jay and every paper and running a campaign the way I think it ought to be run. Let’s be open and honest, take questions whether I know the answer or not. That’s important to me. I don’t want to presume anything, but it’s a safe assumption my opponent (Paxton) will not sit down with y’all.”

Houston was right about one thing: Paxton did not want to sit down and answer questions about his conduct as a public servant.

Dismissing integrity as a qualification for the public trust and likely acknowledging his coveted reputation as a defender of voter suppression laws aimed at discouraging certain segments of voters, including people of color, Texas voters in 2018 went right ahead and elected Paxton again rather than cleaning house and voting into office a Democrat bearing not a whiff of scandal. Even so, Paxton's statewide win was by less than four points (though Paxton garnered 60 percent of the vote in robustly Republican McLennan County).

Complicating Paxton's long-delayed day in court over securities fraud charges: Texas Rangers investigating corruption allegations now refer their findings to district attorneys in the counties where allegedly straying office-holders reside. Catch: DAs in many Texas counties are Republicans, just like the majority of office-holders in the state, which raises legitimate questions about whether those DAs can aggressively or earnestly pursue charges against party allies. In the Paxton case, special prosecutors were hired — and then partisan county commissioners balked at paying them. Democrat Justin Nelson, the former law clerk to Supreme Court Justice Sandra Day O’Connor (a Republican) who ran against Paxton in 2018, found the situation confounding because so many measures actually helped Paxton stave off justice in his own case.

"I mean, think of this — we've got the top cop, the top lawyer for the state of Texas, saying that prosecutors should not be paid for prosecuting crimes, at least in the one instance in which it's his crime they're trying to prosecute," Nelson told me during the 2018 attorney general’s race. "Paxton [because of his indictment on securities fraud charges] cannot even serve on a jury now. I don't think he can even appear before court to argue [cases] based upon State Bar rules, which is just crazy. And so literally the only thing he has said in court lately is 'Not guilty, your honor.' It's nuts."

More? In October 2020, senior staffers at the Texas Attorney General's Office — as in people in the business of recognizing violations of the law and pursuing lawbreakers and scoundrels — brought criminal allegations against their boss, accusing Paxton of employing government resources to serve the financial ends of an Austin real estate investor and Paxton donor. These senior officials have pressed federal law enforcement to "investigate allegations of improper influence, abuse of office, bribery and other potential crimes." More? Wife Angela Paxton, now a Republican state senator in Texas, not long after taking the oath of office sought to empower her husband to exempt entrepreneurs from certain state regulations so they can market "innovative financial products or services." One such exemption: working as an "investment adviser" without registering with the proper state board. Doing so is a felony in Texas — and the very offense for which Ken Paxton was issued a civil penalty in 2014 and criminally charged in 2015. Yet other matters, best left unmentioned here, would seem to conflict with supposed Republican family values, but such standards no longer really seem to matter in the Grand Old Party. Still, if you’re keeping score, Paxton finds himself under federal investigation for such crimes as bribery and still accountable for violating state law for peddling stock for profit without being licensed to do so. What a guy. And only last week while Paxton was savoring the national limelight for trying to save President Trump’s presidential bacon, federal investigators served a subpoena on the Texas Attorney General’s Office in connection with the bribery scandal.

All of which brings us to Ken Paxton's last-minute appeal to the U.S. Supreme Court last week to block Electoral College electors from four key battleground states — Georgia, Michigan, Pennsylvania and Wisconsin — from dutifully casting votes for Democratic presidential candidate Joe Biden, who won the popular vote in each of those states and is poised to formally win election in Monday's Electoral College vote. In his lawsuit, Paxton not only clearly demonstrates his rush to curry favor from President Trump but proves something former Republicans such as myself stress to citizenry: The Republican Party no longer has idealistic principles beyond grandstanding, deceit and retaining power at all costs, even if that means shredding the U.S. Constitution and nixing the will of the people in elections. Indeed, the only elections many Republicans are willing to honor anymore are those they win.

The Paxton suit, to which other Republican attorneys general and President Trump quickly joined, dismissed the actions of Republican and Democratic judges (some of them Trump appointees), state and federal, up and down the line, from one end of the country to the other, who in recent days and weeks have found dozens of similar lawsuits filed by the president's attorneys alleging election fraud and voting irregularities inconsequential, immaterial and astonishingly bereft of hard or reliable evidence. (If one wants to see an excellent example of how easily such “evidence” is dispatched in a court of law, consider Nevada District Judge James Russell’s Dec. 4 ruling.) Even when jurists have acknowledged possible disputes in election protocols, no judge or justice who values his or her reputation and the cherished institution of an independent judiciary would readily invalidate millions of everyday, ordinary people's votes on flimsy claims and hearsay — not unless he or she wants to join Chief Justice Roger Taney and Judge Roy Bean in the judiciary's Hall of Shame and Dishonor.

One need not be a political scientist or constitutional scholar to see major problems in the Paxton suit. First, it flagrantly contradicts the very principle of states' rights that Paxton and his predecessor, Greg Abbott, preached in rhetoric and court filings right along with the rest of the Republican Party during years when Democrats controlled the White House levers: The 10th Amendment indeed reserves many key rights to the individual states to manage their affairs without meddling from the federal government. What’s more, in the days of the Founders, states were fiercely protective of their rights to manage their own elections and pass their own election laws. Yet Paxton forsakes this supposedly sacred GOP principle, flip-flopping in fealty to President Trump in pressing a federal court to tell other states how to run their affairs, at least in running elections. Worse, for a state where many deeply rooted Texans have expressed to me strong reservations about people moving in from out of state and then telling them how to run their affairs, here's Texas going off half-cocked and trying to tell Pennsylvania, Georgia, Michigan and Wisconsin how to run their affairs.

Even Republican U.S. Sen. John Cornyn of Texas, a former state jurist and attorney general who has sided with President Trump far more than I wish he had, drew the line on this lawsuit in an interview with CNN last week: "I frankly struggle to understand the legal theory of it. Number one, why would a state, even such a great state as Texas, have a say-so on how other states administer their elections? We have a diffused and dispersed system and, even though we might not like it, they may think it's unfair, those are decided at the state and local level and not at the national level.”

For the uninformed, this is called federalism and it once soared as a dominant principle of the Republican Party and anyone passing himself or herself off as legitimately conservative.

By contrast, Texas' junior senator, Ted Cruz, who has long advocated states' rights, did a neat 180-degree ideological turnaround last week and offered to argue Paxton's case before the highest court in the land, adding further evidence of his hypocrisy, political opportunism and quicksilver principles. Anyone remember when, early in the combative 2016 primary election season, presidential candidate Trump accused rival Cruz of stealing a victory in the Iowa caucuses? Trump tweeted at the time: "Based on the fraud committed by Senator Ted Cruz during the Iowa caucus, either a new election should take place or Cruz results nullified.” Back then Cruz dismissed the Trump claim as a “Trumpertantrum.”

Second problem: General Paxton claimed officials in the four battleground states, using the ongoing COVID-19 pandemic as a pretense, "usurped" state laws through "executive fiat or friendly lawsuits," thus undermining state legislatures and "weakening ballot integrity" amidst a flood of mail-in ballots. Irony? Paxton's suit conveniently ignores the fact Gov. Greg Abbott and the Texas Supreme Court did the same thing in Texas. Given the spread of a deadly virus on his gubernatorial watch, Abbott on July 27 expanded early voting in the approaching general election by six days. He also extended "the period in which marked mail-in ballots may be delivered in person to the early voting clerk’s office, allowing such delivery prior to as well as on Election Day." By the time disgruntled Republican Party of Texas chairman Allen West, Texas Agriculture Commissioner Sid Miller (dubbed by the president "Trump's man in Texas") and a handful of Republican legislators filed suit on Sept. 23 to quash the governor's orders expanding voting opportunities, the voting process in Texas was underway. The Texas Supreme Court dismissed the suit as too much too late.

Which is why Abbott's support of the Ken Paxton suit, after being sued by Republican Party of Texas chairman West and others for the same thing a few months ago, defines the word “crazy.” (In fairness, Abbott couched his support by suggesting the Paxton suit would help clarify widespread electoral disputes.)

What's more, the Texas Supreme Court on May 27 issued a nuanced decision arguably expanding mail-in ballots in Texas when such ballots are largely restricted to Texans age 65 or older and the disabled. Chief Justice Nathan Hecht insisted each voter, pandemic or not, should decide whether his or her physical condition qualified as a disability under state law: "Indeed, the Legislature rejected the requirement of a physician's proof of disability for mail-in voting applications when it amended the Election Code in 1981. And the application form provided by the Secretary of State requires only that voters check a box indicating whether the reason for seeking a ballot by mail is a disability. The voter is not instructed to declare the nature of the underlying disability. The elected officials have placed in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition."

So should Texas' electoral votes consequently also be up for debate? Or did the situation, ahem, not apply in Texas where General Paxton's preferred candidate, President Donald J. Trump, emerged with the most votes, even though Texas also saw a significant spike in mail-in voting as well as in-person balloting? There's enough hypocrisy here to choke an elephant.

Third, Paxton's suit was riddled with enough inconsistencies and blunders and rabbit holes to embarrass any Supreme Court justice who even for a moment contemplated it seriously. For instance, the suit insisted that invalidating the votes of more than 20 million people in the four battleground states would impact 72 electoral votes when it's actually 62. At one point it cites allegations already dismissed by previous jurists. At another point it suggests the level of fraud in different states has been so successful as to render voter wrongdoing undetectable,  which raises a question: How do you proceed when the evidence is undetectable? Other stumbling points: Congress approved Dec. 14 for the Electoral College vote. No less than the Constitution mandates electors converge in their individual states on the same date nationwide. For justices claiming to be strict constitutionalists, any variance would have invited them to violate the Constitution. Also, in their press release about the suit, Paxton’s gang got the filing date wrong.  And there's the suit's bizarre claim that Biden's chance of winning the popular vote in Georgia, Michigan, Pennsylvania and Wisconsin was less than one in a quadrillion, lending this mess the tenor of a bad Las Vegas oddsmaker's perspective. Everything's here plus the kitchen sink and the bathroom toilet. No wonder Texas’ solicitor general quietly declined to sign off on this embarrassment. More? Well, considering that Republican-run Texas is a state whose controversial 2011 voter ID law was found to be racially discriminatory by one of the most conservative federal benches in the land (the U.S. Court of Appeals for the 5th Circuit); a state that by one recent international survey eclipses all other U.S. states in making it hard for people to vote; a state that last year tried to purge voter rolls of non-citizens only to ensnare a whole lot of legitimate citizens (including 366 fellow citizens here in McLennan County), there’s undeniable irony in its suggesting in this lawsuit that it’s the injured party because other states made voting more accessible and safer for their residents during a public health crisis.

Finally, the suit proves the old saying about the rotten apple spoiling the barrel, another good reason for Texas voters to have denied Paxton the job back in 2014 and certainly in 2018. Paxton's suit alone might have gone on to its proper reward as historic laughingstock or, as Pennsylvania Attorney General Josh Shapiro far more accurately put it, "seditious abuse of the judicial process." However, a Louisiana congressman and Trump ally pressed fellow House Republicans to sign a brief supporting this absurd suit, stressing that the president was "anxiously awaiting the final list" to see who among them supported him. Among the 126 House Republicans signing the brief is five-term Congressman Bill Flores, the low-key, unflappable tea party lawmaker whose district includes Waco and Bryan/College Station. Some Americans stunned at such mass signings by Republican lawmakers have branded the entire lot cowards or traitors. This much is sure: It's one or the other if not both.

For Republicans unwavering in their loyalty to Trump, the Paxton votes of 2014 and 2018 will always seem right and proper and perhaps even divine. For those of us lamenting the corrupted wreckage of the Republican Party, those votes stand as colossally and unforgivably stupid. The recent words of conservative gadfly Erick Erickson should rightfully exact much pain: "Ken Paxton, the attorney general of Texas, is under a federal investigation and would love a presidential pardon. His lawsuit is just more performative leg-humping by someone desperate to curry favor with President Trump. The various attorneys general who have joined his lawsuit all want to either get re-elected or seek higher office. Joining the lawsuit gives them some measure of ring-kissing or protection from any rabid Trump supporters who wanted a 'just fight' moment." The same must be said of fickle Republican lawmakers who signed on to their lasting infamy.

Friday evening, the Supreme Court of the United States with just a few words put an end to the Ken Paxton lawsuit. It rejected, and without public dissent, this last-minute charade to trash the ballots of millions of voters, ballots that ultimately went in favor of Joe Biden this time around. During the suit’s short life, skeptical Republican Sen. Ben Sasse of Nebraska quipped, it looked “like a fella begging for a pardon filed a PR stunt rather than a lawsuit, as all of the assertions have already been rejected by federal courts and Texas' own solicitor general isn't signing on." Even so, Paxton in his five long days of glory did significant damage not only to the nation's once globally admired institution of free elections but also to those Republicans who presumably knew better but because of moral weakness will go down in history as seeking to invalidate fellow citizens’ votes. They will lose face (or should) with rank-and-file election judges and volunteer poll workers who took an oath and put aside their partisan politics and did their level best, and at personal risk to themselves, to hold accessible, trouble-free elections during a fast-worsening pandemic.

To add insult to injury, Texas Attorney General Paxton on his Facebook page this weekend mischaracterized the high court’s decision and a technicality cited by Justices Clarence Thomas and Samuel Alito: “Disappointed, of course. But two Justices agreed with us and the fight continues! Please help us continue to protect our Constitutional values!!! God bless you, God bless Texas and may God protect our Republic, always!” The truth? The brief aside by Justices Alito and Thomas concerned a procedural matter on handling such cases and, as the pair made clear, had nothing at all to do with the merits of Paxton’s case in which they sided with the rest of the court, including Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all Trump appointees. Paxton’s statement confirms his ignorance of the law or his willingness to lie in the shameless manner of his idol. Several constituents sought to correct Paxton on his Facebook page, without response of course, though others were more than happy to be misled, including one who offered a familiar refrain: “Thank you! Praying for you! Still believing that God almighty is going to intervene and President Trump will remain!” Which raises yet another question, certainly unanswerable at present: Why didn’t God just get this matter settled on behalf of President Trump on Nov. 3 instead of dragging us all through intrigue and civil strife during Thanksgiving and into the Christmas season? Hallelujah!  

More? Well, the increasingly reckless Republican Party of Texas chairman, responding to the high court’s Friday night decision, resorted to the old Texas standby whenever Texas Republicans don’t get their way  — which is why Allen West is the most colossally and unforgivably stupid pick that Texas Republicans have made at the ballot box aside from voting twice for Ken Paxton and twice for Donald Trump: “This decision establishes a precedent that says states can violate the U.S. Constitution and not be held accountable. This decision will have far-reaching ramifications for the future of our constitutional republic. Perhaps law-abiding states should bond together and form a union of states that will abide by the Constitution.” An angry Navy veteran quickly concurred on retired Army Lt. Col. West’s Facebook page, betraying the contrary, destroy-it-all mindset long behind the Trump juggernaut in America: “I have lost all respect for the U.S. Supreme Court. Gorsuch, Kavanaugh and Barrett are complete duds. All the effort to get them confirmed was a complete waste of time. If it was possible, I would say all three of them should be impeached and removed from the Supreme Court or simply abolish the Supreme Court altogether.” On the other hand, this was also posted: “So, the African-American chair of the so-called ‘Party of Lincoln’ is making a barely veiled secession threat over a racist’s attempt to subvert democracy that was stopped by a Supreme Court packed with constitutional originalists, three of whom Trump chose himself. Gotcha. This college-educated, Christian, ex-EMT/firefighter veteran won’t be voting for this GOP anytime soon. You guys are crazy.”

I don’t know whether fellow voters ever reflect on their mistakes or lack of vigilance, but I regularly wonder if, through newspaper editorials, columns and extensive candidate Q&As in recent years, I did everything I could have as a journalist to highlight the perils in Paxton’s election and re-election, all of which helped set the stage for some of this insanity. And the madness yet continues in sometimes violent street demonstrations and calls for rebellion. Had this suit succeeded, I believe it would have signified “the end of democracy in the United States of America,” to quote Michigan Attorney General Dana Nessel. In one of my very last editorials before retirement from the Waco Tribune-Herald, I once more took aim at Paxton amid allegations of his corruption, bribery and abuse of office for investigating the enemies of campaign donor and real estate investor Nate Paul: “No, Paxton isn’t up for re-election this cycle, which means that, barring some unforeseen development, a hobbled Texas Attorney General’s Office will likely limp along into our future, its decisions and rulings increasingly greeted by legitimate cynicism and suspicion, even among Republicans. It’s a spectacle worth considering as voters begin casting ballots. The first question for all should be not what party the candidates have sworn allegiance to but whether voters themselves have placed such allegiances above integrity, honesty, competence and courage.”

With the 2022 election and the possibility of a pardoned Ken Paxton running for a third term as attorney general in my worst thoughts, I must finally resign myself to the Republican Party’s slow-motion implosion with Col. West only months into his rabble-rousing, apparently secessionist duties and Private Citizen Trump sure to remain a spellbinding and destructive force over the proud deplorables ultimately determining the party’s direction. Paxton will have played a major role in all of this, including the new cries of “traitors” aired at mere mention of the Republican Party, even as GOP hacks raise tiresome alarms about socialists and communists. Former Dallas Times Herald columnist Jim Schutze, lately of D Magazine, said it best of Paxton on this latest transgression atop everything else: “This guy is the true bottom of the barrel. Drag a five dollar bill through the Republican Party and this guy and the people joining him are what you get.”

'Dastards, liars, traitors, knaves, Americans all!'

Probably to distract me from the tumult now shaking the very roots of our democracy, Ann the other evening suggested I watch Turner Classic Movies' airing of director William Dieterle's "The Devil and Daniel Webster," a 1941 film that in several respects improves on American writer Stephen Vincent Benet's compelling tale of five years earlier, and not just because of Walter Huston's wonderfully devilish portrayal of Mr. Scratch and Bernard Herrmann's mesmerizing score, alternately mischievous and macabre when not mining strains of Americana. This recycling of the Old World Faustian bargain is distinctly American: Struggling New England farmer Jabez Stone bargains away his soul not for enlightenment, not for sensual pleasures, but for prosperity and, as the film's original title puts it, "All That Money Can Buy." What's more, the Benet tale, whether in magazine, film or even as a terrific one-act 1939 "folk opera" (by American composer Douglas Moore), offers a powerful allegory that resonates a bit too uncomfortably in our own times: Indeed, when confronted with astonishing and repeated instances of the corruption, cruelty and constitutional transgressions of the past four years, to degrees not seen in a previous presidential administration, too many of us shuffle our feet, nod in half-hearted acknowledgement while looking at the earth, then plead in a burst of justification for it all, "Well, sure ... but we sure as hell don't want to do anything to upset this economy!" At the risk of mixing metaphors, too many of us have accepted our 30 pieces of silver if not sold our souls.

One of the improvements of the Dieterle-Benet collaboration involves the climactic scene in which American statesman and orator Daniel Webster — whose once-famous 1830 Second Reply to Hayne was drilled into generations of American students to ensure they fully grasped the importance of the Union — offers to defend Stone from the devil's claiming his soul as duly contracted. When Mr. Scratch notes the difficulty of mounting an ordinary trial to decide the matter, Webster declares: "Be it the quick or the dead, so it be an American judge and an American jury." Scratch replies with zest: "The quick or the dead, you have said it!" He then conjures a jury of the damned including pirates, murderers and traitors, most obscure, some even non-existent. The exception: General Benedict Arnold, who rises from the depths of hell to join the jurors assembling in Jabez Stone's New Hampshire barn, still hiding his face in everlasting shame. For whatever reason, Benet in his 1936 short story blundered here, leaving Arnold off the jury; General Arnold's inclusion on the Dieterle set gives Webster a familiar American scoundrel to play off — first by objecting to Arnold's presence on the jury as a traitor, then in his subsequent appeal on behalf of his fellow American: "You, Benedict Arnold, I speak to you first because you are better known than the rest of your colleagues here. What a different song yours could have been — friend of Washington and Lafayette, a soldier. General Arnold, you fought so gallantly for the American cause till — let me see, what was the date? 1779, that date burned in your heart. The lure of gold made you betray that cause."

No other scene in Dieterle’s film, even that in which a temptress from hell dances a penny-pinching miser to his death, rivals that where Webster goes to bat for Stone before this jury of the damned — "dastards, liars, traitors, knaves," the devil readily acknowledges, but “Americans all.” Yet as one today contemplates the jury, including such intriguing villains as British loyalist Walter Butler (in command of the raiding party credited for the Cherry Valley Massacre of 1778), turncoat Simon Girty, pirate Edward Teach and, of course, General Arnold (who actually betrayed the American cause in 1780, not 1779), one wonders how such an American jury of the damned might be properly replenished in times to come. Who among us now might one day be ripe to fill in for General Arnold and Walter Butler upon jury summons? Surely retired Army Gen. Michael Flynn, the ex-national security advisor recently pardoned by President Trump after lying about ties to foreign adversaries and now pressing President Trump to declare martial law, suspend the Constitution and order new presidential elections under military oversight. Surely former Trump campaign attorney Sidney Powell, whose claims of electoral malfeasance are so insane she was dumped from the president's legal team after touting such conspiracy theories as the long-dead Venezuelan dictator Hugo Chavez conspiring to help Joe Biden win the 2020 presidential election — and Powell’s lately retweeting a call to invoke the Insurrection Act of 1807, suspend the Electoral College (which so many Trump disciples swore by after the 2016 election) and set up military tribunals to pursue election fraud. Surely Trump campaign attorney Joe diGenova, who last week said Christopher Krebs, the honest Trump-appointed election security chief who defended the integrity of the 2020 elections, should be killed, "taken out at dawn and shot."

Diehard Trump apologists will certainly object to this admittedly idle pursuit of "seat-the-jury-of-the-damned," Scratch-style, as vindictive and hateful and irrelevant. Fair enough. The problem is many of them have zealously played this destructive political parlor game for years now, before, during and after the supposedly stolen presidential election of 2020. Consider Republican state Sen. Brian Birdwell, a supposed “war hero” and self-envisioned patriot representing Waco and the surrounding area, standing up in a local church on Oct. 25 to suggest those allied against President Trump in the election do not love their country. Consider rabble-rousing Republican Party of Texas chairman Allen West — whose campaign for the job last spring condemned mask mandates as tyranny, deadly pandemic notwithstanding — claiming in this very same church that "[w]hat the left is seeking to do in the United States of America is undermine the omnipotence and authority of God." Consider Republican Congressman Louie Gohmert, again at this very same church and on the very same evening, resorting to a familiar refrain and calling on Christian warriors to defeat Democrats at the polls: "We're at the edge of a cliff and we're either going over it and becoming socialist or we can just go back to the crossroads and get on the right track." In her primary election campaign last winter, colossally unprepared Republican Congressional District 17 candidate Renee Swann highlighted this last-cited GOP default stance, as evidenced by one of her many mailers cramming my mailbox (presumably given my long-lapsed Republican credentials): “Socialists want more control over us. They want to take our health care away. They want to take our energy choices away. They want to take our Second Amendment rights away. I’m Renee Swann and I want to make socialists GO AWAY.” Considering their vicious maligning of their “enemies” as godless socialists and commies bent on destroying the country and undermining god-given freedoms, it seems only right that right-wing demagogues contend with devastating claims and damning characterizations, including the most damning of all, one well earned by certain Republicans in recent days and weeks: traitor.

The stormy period since Election Day 2020 does raise increasingly legitimate questions about traitors and fifth columnists and turncoats as so many Republicans beginning with the president and his chief attorney Rudy “Truth isn’t truth” Giuliani argue and conspire to invalidate the votes of millions of Americans, all to leave President Trump victorious rather than vanquished. Some now concur in the treasonous call for military-run elections, scrapping the constitutionally mandated Electoral College and pressing violence on all who defy President Trump. Some even speak warmly of a Trump dynasty. (I marveled the other day at a Trump-supporting friend’s efforts to referee a wild dispute erupting on his Facebook page in which a lifelong Republican condemned Trump’s corruption of the GOP and the “integrity of democracy,” only for another to literally and repeatedly sermonize to her: "What will you do when you realize that Father God appointed and anointed POTUS Donald J. Trump? What shall you say, scoffer?") All of which begs the logical question: When do such anti-democratic, un-American shenanigans slip into genuine sedition? When do such self-styled “patriots” become out-and-out traitors? Would your congressman or senators fit the mold? How to judge, for instance, five-term Republican Congressman Bill Flores, an amiable retired oil and gas executive who represents Waco and the surrounding Central Texas area, portrays a mannered and measured public servant during Waco Tribune-Herald editorial board meetings, yet joined 38 other House Republicans in signing a Dec. 1 letter to Attorney General William Barr complaining of election fraud and voting irregularities — the very day Barr told The Associated Press that neither his DOJ prosecutors nor the FBI can find any evidence of election fraud sufficient to change the presidential election outcome? Yet we see no details of the anomalies, improbabilities and accusations Flores and other House Republicans claim any more than we've seen them in the many spurious lawsuits filed by Trump's lawyers, suits repeatedly rebuffed and even ridiculed by outraged Republican and Democratic judges, some even Trump appointees, before and after these 39 House Republicans dispatched their letter. Is this effort traitorous or merely complicit in undemocratic undertakings? Or is this simply a political maneuver to pacify an enraged president more than willing to publicly disparage and vilify all who dare cross him? Probably the latter, hardly excusable given their oaths of office (probably sworn on fire-retardant Bibles) but demonstrating little more than cowardice or timidity when the nation more than ever calls for sobriety, courage and backbone. And how to judge Flores' Republican successor, carpetbagging career politician Pete Sessions, who lately has used social media to advance all sorts of conspiracy theories suggesting a stolen presidential election — hardly prudent given Sessions' 2018 role in an alleged quid pro quo scheme in which foreign money of suspicious origin was routed to the pro-Trump super PAC America First Action and Sessions' re-election campaign as part of a high-pressure scheme to engineer removal of Marie Yovanovitch, beleaguered U.S. ambassador to Ukraine. A 22-year congressman who relocated to his native Central Texas after his 2018 defeat in Dallas, Sessions has maintained in my interviews with him that he was an unwitting pawn in this Trump-Ukraine skullduggery involving a couple of Giuliani stooges — certainly possible, though Sessions' efforts advocating for Yovanovitch's removal and his poor judgment as a veteran lawmaker accepting foreign loot in the first place don't exactly bolster his insistence of innocence (and, to be clear, Sessions has not been charged in the investigation). Just for the uninformed, there's a ban on U.S. political campaigns accepting foreign cash for reasons Congressman-elect Sessions might ask General Arnold about next time he sees him.

Evidence strongly suggests German-born William Dieterle enjoyed overseeing RKO's production of "The Devil and Daniel Webster," possibly because he was already steeped in Goethe's "Faust," having acted in an ambitious silent film version of the classic from Germany's famed UFA studio in 1926. No doubt the opportunity to recycle the saga through American sensibilities and in American settings excited him in 1941, particularly after fleeing economic and political upheaval in Germany. (Dieterle was such a big believer in Bernard Herrmann's marvelous score for "The Devil and Daniel Webster," for instance, that he suggested the entire score deserved a full hearing separate and apart from the film — rare praise from a filmmaker and something that my friends, conductor William Stromberg and film composer John Morgan, hope to one day record if sufficient financing falls into place.) While the film offers an allegory for its times amidst the Great Depression at home and tyranny on the march abroad, it also pricks and provokes and prompts certain parallels with 21st century America and the bargains we the people have more recently made.

At present two major theories explain why so many Republican officials have allowed themselves to become swept up in Trump's all-out assault on democratic values and constitutional protocols, to the extent of contributing to his scheme to overturn election results that, by all federal and state court accounts, should have sent Trump packing for departure and flight: Either Republicans truly fear defying him and being savagely condemned by presidential tweet, backed up by threats physical and political from his unquestioning supporters or else too many Republicans have devolved to the point that, yes, power is worth throwing everything else over the side for, including the U.S. Constitution and the will of the people come election time.

During a Waco Tribune-Herald editorial board meetings over opinion page positions, our ebullient, blunt, cut-to-the-chase publisher Jim Wilson remarked that, whatever else, President Trump's xenophobic, profane rhetoric and rants had opened a veritable Pandora's box within each of us, freeing impulses and resentments and hostilities one might have long kept hidden if only because of societal expectations or, if one prefers, political correctness. All such restraints are gone now, Jim contended: If you're a racist at heart, those impulses are now free for you to air and to vent, however these may shock and repel some friends or reassure and enable others similarly inclined. And if you're a Republican who believes the ends justify the means, however horrible the means might be, however morally and ethically impossible they might once have been in polite and civilized society, whomever they might strike, wound and disable, then Donald J. Trump has been a searing catalyst, unleashing whatever Machiavellian motives have lurked deep in your soul. For many Republicans, Trump has arguably reawakened beliefs deeper than the constitutional values that some tea party types once ran around claiming and championing. It’s clearly no longer convenient to claim and champion such values. Trib Editor Steve Boggs, a steadfast conservative in principle and Oklahoma-reared independent with whom I greatly enjoyed serving in Waco till my retirement, captured the situation perfectly in a 2017 column noting how the constant moving of political goal posts by Republicans makes it harder to settle on rules and principles and standards. My own conclusion: Such increasingly frequent and bewildering shifts ultimately reveal a faction that in the final analysis no longer stands for anything. If proof of this point is needed, consider the 2020 political platform of the Republican National Convention: There isn’t one except for pledged fealty to this president.

All of which, given the folkloric allegory at hand, raises a final set of questions: Who among us, to quote dour Judge Hathorne in "The Devil and Daniel Webster," is already "lost and gone," perhaps one day liable for duty on a jury of the damned under the conditions Benet and Dieterle prescribe? Who among us is Jabez Stone, finally realizing, almost too late, that certain bargains come at a terrifying cost, to the point they may cost not only us but cherished progeny? And do any Daniel Websters, at least as idealized by Benet during another dark period of American history, still walk among us today, ready to demonstrate political courage in the face of treasonous calls for violence, military oversight and sedition, up to and including invalidating the will of the people?

One must acknowledge here that Webster, who in real life condemned slavery as “a great moral, social and political evil,” was himself condemned by abolitionists and others for his support of the Compromise of 1850 with its controversial Fugitive Slave Act requiring return of escaped slaves. Repugnant though this legislation was, Webster likely realized preventing the spread of slavery or one day even abolishing it would be a higher hill to climb if the nation went to pieces, a dilemma Abraham Lincoln faced a decade later. Interestingly, it was Lincoln’s 1860 election on a policy of preventing the spread of slavery into the territories and the subsequent refusal by Southern states to honor and accept the election results that prompted many states to secede, igniting a war that ultimately left hundreds of thousands dead, freed the slaves, preserved the union and left historians to endlessly debate whether Southerners such as Jefferson Davis and Robert E. Lee qualify as traitors for breaking their oaths and taking up arms against their country. One lesson emanating from the disputed election of 1860 that seemed beyond debate, at least for historians and constitutional scholars: If individual states are indeed permitted to ignore election outcomes and splinter into disunion and disarray, then mighty constitutional protections and the promise of the Declaration of Independence mean nothing. Even now, the only thing worse than candidates branding one another socialists and fascists and heathen and traitors is a refusal to acknowledge election results. And if politicians and jurists and party leaders and members of the Fourth Estate chronicling these matters normalize such refusals as acceptable in a democracy and shelve their responsibility to stand by the people and the Constitution, they themselves become complicit in undemocratic, unconstitutional activity. The question then becomes to what degree and whether consequences are warranted, even if only exacted by the lowly American voter.

In her column in last Saturday's Wall Street Journal, Reagan speechwriter and longtime conservative commentator Peggy Noonan eloquently posed the same question about political courage. She celebrated Republican Sen. Margaret Chase Smith and the Maine lawmaker’s principled refusal to kowtow to Republican demagogue Joe McCarthy during the red-baiting era of the 1950s, even though Smith realized defying Sen. McCarthy might cost her politically, even though other Republicans had surrendered their principles and cowered before McCarthy's reckless whims and lust for political dominance. Noonan cited Chase’s 1950 “Declaration of Conscience,” a Senate speech in which she lamented that those “who shout the loudest about Americanism” ironically ignore “some of the basic principles of Americanism.” In concluding, Noonan makes clear how this bit of obscure American history offers the way forward in our own times. “What are we saying? When history hands you a McCarthy — reckless, heedlessly manipulating his followers — be a Margaret Chase Smith,” Noonan wrote. “If your McCarthy is saying a whole national election was rigged, an entire system corrupted, you'd recognize such baseless charges damaged democracy itself. You wouldn't let election officials be smeared. You'd stand against a growing hysteria in the base. You'd likely pay some price. But years later you'd still be admired for who you were when it counted so much."

Despite humiliation by Republican Party officials for her principled stand, Chase survived, thanks to Yankee constituents who put more stock in her than Joe McCarthy and party dictates. Director William Dieterle wasn’t as fortunate. While Republicans couldn’t lash him as a committed communist during the red scare of the 1950s, his being a foreign-born filmmaker with leftist ties got him “graylisted,” compelling him to return to Germany after work dried up in America. As for McCarthy, he has earned his rung in hell. During the scandalous Army-McCarthy hearings of 1954, the senator made the mistake of personally crossing Joseph Welch, the unflappable, articulate attorney tapped to defend the Army of charges that communists had infiltrated their ranks. When McCarthy foolishly sought to malign one of Welch’s assistants, Welch pulled the grenade pin during the televised congressional hearings that McCarthy otherwise so craved, sealing his finish. In remarks as applicable now as then, Welch dispatched McCarthy with this: “Let us not assassinate this lad further, Senator; you've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”

Courting trouble in God's house

Historians dispassionately scrutinizing our pandemic times a lifetime or two from now will surely marvel at how the mightiest nation in the 21st century splintered into conflict and impotence in battling SARS-CoV-2 and its insidious spread. Some political scientists may even put aside the chaos and conspiracy theories spread by the president of the United States and lay as much blame or more on our constitutional system of governance, including the tremendous powers ordinarily left to state and local governments to address public health crises. With different sentiments in different regions of the country, including a clear urban/rural divide, the United States may represent one big, fairly slow-moving pandemic target because of its rigorous adherence to states' rights and mounting partisanship.

In that context, last week's 5-4 Supreme Court ruling in Roman Catholic Diocese of Brooklyn v. Cuomo will further confound historians. The case involves protests by Catholic and Jewish congregations in New York over what they argued were overly stringent pandemic restrictions imposed by Gov. Andrew Cuomo. These restrictions tightly limited gatherings in certain places of worship. The congregations were left smarting, given what they saw as far looser restrictions applied to certain businesses. So they pressed their grievances in court over attendance restrictions on the basis of First Amendment religious freedom as well as the 14th Amendment, which applies the Bill of Rights to state and federal matters alike.

The narrowness of the high court's Thanksgiving Eve ruling in favor of these Catholic and Jewish congregations — and the hostility some justices showed for one another's position — perfectly represents our nation: A significant segment of the population dismisses the virus as much ado about not much; another sees such attitudes (from top on down) as recklessly contributing to the needless hospitalizations and deaths we now witness. Given how the virus is reaching unprecedented levels of infection and death, I keep thinking of Waco-based philosopher Robert Baird's wonderful Aug. 30 essay in the Waco Tribune-Herald on how enforcement of our laws and rules must always be accompanied by good judgment — or, as President Theodore Roosevelt told Wacoans in a 1905 address, common sense.

The unsigned high court ruling, as well as two concurrences by Justices Neil Gorsuch and Brett Kavanaugh, acknowledge the gravity of the pandemic but suggest certain freedoms must endure in the face of public health measures, even when the latter are temporary. To quote the unsigned majority opinion: "Members of this court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty."

Where the majority opinion quickly goes off the rails and slides into everything from denial of the science behind viral spread and the forsaking of common sense is when Justice Gorsuch, referring to red, orange and yellow zones of infection in New York, too closely and too carelessly compares restrictions on places of worship with certain business entities deemed essential: "It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques."

By contrast, common sense imbues Justice Sonia Sotomayor's bristling, straightforward dissent, which takes special aim at Gorsuch: "Undeterred, Justice Gorsuch offers up his own examples of secular activities he thinks might pose similar risks as religious gatherings but which are treated more leniently under New York’s rules (e.g., going to the liquor store or getting a bike repaired). But Justice Gorsuch does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking and singing in close proximity indoors for extended periods of time.

"Unlike religious services, which 'have every one of th[ose] risk factors,' bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time," Justice Sotomayor writes, attaching sobering briefs from the American Medical Association and New York Department of Health. "Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily."

One does wonder where Justice Gorsuch gets his liquor. Do patrons sing for their bottles there? Pray perhaps? What does this ruling say about other activities that received even greater restrictions such as concerts or public lectures? Does this mean First Amendment free-speech rights should also be invoked in these venues and settings? Or are certain passages of the First Amendment more expendable than others? The court has opened a fine can of worms in the middle of a health crisis.

Justice Sotomayor adds for good measure, referring to Gov. Cuomo and the court's condemnation: "The governor’s comments simply do not warrant an application of strict scrutiny under this court’s precedents. Just a few terms ago, this court declined to apply heightened scrutiny to a presidential proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the proclamation as a 'Muslim Ban,' originally conceived of as a 'total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’”

In short, Justice Sotomayor suggests the court's right-wing majority is cherry-picking when to stand tall for First Amendment religious rights: Is it only right and proper when Judeo-Christian worship is inconvenienced? For all the unsubstantiated claims to the contrary by so many Americans who claim to champion "originalism" in court decisions, the First Amendment says absolutely nothing about limiting religious freedom to Christians and Jews.

The decisions and dissents — six total in this one case — certainly mirror the aforementioned splintering of rationale and resolve in the midst of our pandemic calamity. One senses some embarrassment by Bishop Nicholas DiMarzio, not only because the governor's health restrictions had been lifted by the time the court ruling came down but also because of Pope Francis' Thanksgiving Day criticism of groups protesting COVID-19 restrictions. "I don’t think we’ve ever negated the rules that were imposed upon us, except we had a difference of opinion on the number of people that could go into a building,” the bishop said after the court decision. “That’s a big difference from flaunting the rules, as some congregations have done in Brooklyn and Queens. They refused to take precautions. That was not our case. We complied with everything we were asked to do and more. So, I think that it’s a big difference. I don’t think those words of the pope really apply to us — this is not an ideological issue. It’s not anti-government, but it is looking at the First Amendment that people have a right to worship when it’s possible.”

The dilemma percolates well beyond Brooklyn. Less than a week before the high court's scattershot of opinions, Dr. Emily Smith, Baylor University assistant professor of epidemiology and for some 20 years the wife of a pastor of congregations big and small, spent an hour advising area pastors on how to manage their Central Texas congregations at a time of unprecedented viral spread nationwide, even as the holiday season invites more church gatherings. She stressed that the virus is spread through four key factors: people assembled in enclosed spaces, exhalation (singing, shouting and "making a joyful noise"), crowding and a lack of physical distancing.

"When you put all four of these together, and these risks can compound on one another, churches are kind of primed for that," she said. "We sing, we shout, and it's all good in pre-COVID times. During COVID times, it makes it really risky."

Evidence of problems unique to worshiping emerged early on. Smith noted a Centers for Disease Control and Prevention-documented case in early March in which two symptomatic people attended church events and later tested positive for COVID-19. At least 35 of the church's 92 attendees subsequently contracted COVID-19, resulting in three deaths. And from viral spread extending from the church into the community, at least 26 further cases of COVID-19 were confirmed with an additional death. "These stories are becoming more and more prevalent," Smith told others through the Truett Church Network. "We're just not talking about it as much for lots of different reasons."

She lamented what infected the public resolve last spring, an ambiguous reference to the radical right's equating of mask mandates and lockdowns as tyranny: "There was a sense of solidarity and then something changed. And you guys saw it too. We all saw it. Somehow it became political and then it became religious, kind of."

The pushback Smith has personally received reflects the vigor of this resistance, including a hand-scrawled note brimming with hostility and rebellion: "STOP!! Emily! You are contributing to this panic problem. You are not a medical doctor! And you are helping destroy America. 1.4 million U.S. cases is .3% of our population and 83,000 deaths is .02%. Yet, you want to destroy 99% of people in this country. Get over yourself! You are not helping. You might as well take the mark of the beast, because you are being dooped [sic] bigtime!" [Italics here highlight words underlined in this note by the sender.]

Happily, local health officials and a strong mix of religious scholars and scientific researchers at Baylor University are helping many regional churches do right by their congregants and the communities in which they worship and which they presumably seek to benefit through biblically inspired works of charity and goodwill. That's worthy of high praise because by order of Texas Gov. Greg Abbott, McLennan County is again seeing local bars closed and restaurant occupancy sharply limited due to the fact patients suffering from COVID-19 now exceed 15 percent of local hospital capacity (almost reaching 20 percent by Wednesday). Churches in Texas remain relatively free of any public health restrictions, which means it's up to local faith leaders to decide what's best for all as the pandemic worsens.

Meanwhile, COVID-19 is increasingly serving up daily reminders of the human cost that goes beyond the battle over health statistics, some of the latter accurate, some clearly cooked for political ends. Consider Oklahoma City ICU nurse Lizanne Jennings, whose husband died of COVID-19 on Tuesday, just three days after her mother died of the same malady. In a CNN interview, anger understandably mixed with grief as she referenced the heartlessness of many Americans: "It didn't have to be this way, it just didn't have to be this way. Our family didn't have to be gutted. Everybody talks about the .01 percent or whatever it is. Well, 40 percent of my family is gone."

In local obituaries very often ambiguous about the cause of death, some families now choose to note one's passing of COVID-19, as if to say, "This loved one is more than a statistic to be debated and dismissed. This life had meaning. This life had value. This life was precious to some of us." The most recent examples included, just this week, one for retired CPA Rowland Dale "Pat" Pattillo Jr., who died Sunday at age 97. After noting he was a victim of COVID-19, his children, grandchildren and great-grandchildren highlighted his merits in life: "He was a man of conviction and principle, a good man, honest and hardworking. He was a philosopher and a student of life. He was smart, inquisitive, well read, always learning. In his 80s he enrolled in an Algebra II class at MCC because he felt like his mastery of the subject wasn't what it used to be. He read every day, subscribing to all sorts of magazines and periodicals. He read mostly of current events, issues of the day. He thought TV was a waste of time. He loved people and he always wanted to 'hear their stories.' He never met a stranger. He always had a smile on his face and got up every morning choosing to be happy." (The family also dutifully included what Pattillo believed should be the only words to mark his passing, whether of COVID-19 or anything else: "Those who loved and/or knew him are aware of his many failures and shortcomings, and his limited successes and awards. For those who did not, it doesn't matter." Perhaps, in a broader societal context, this also explains those who dismiss the viral contagion as particularly significant.)

Historians will likely pass stern judgment on the high court's opinion championing religious rights over innocent lives during a rampaging plague filling hospitals and morgues (and local officials this week have secured a refrigerated truck with space for 40 of us in case COVID-19 deaths overwhelm local mortuaries). Ironically, the far-right jurists behind the Roman Catholic Diocese of Brooklyn v. Cuomo majority opinion may find the needle harder to thread with any constitutional consistency if the opportunity arises to follow through on the steep expectations so many pro-life advocates have of them, specifically in scrapping in its entirety Roe v. Wade and thus sacrificing the rights of women on behalf of the innocent unborn — an already enormously complicated moral, ethical and constitutional dilemma. Just how does the solution many pro-life forces seek and pray for fit constitutionally with the court-ordered overriding of public health directives to keep infections from being transmitted from devoted worshipers gathered in sanctuary to innocent people moving about in the surrounding community, unwitting believers and non-believers alike? Whatever else our historians one day deduce, they may conclude that our tumultuous, conflict-ridden pandemic era of hundreds of thousands dead ultimately revealed just how many of us place premiums on some lives but not on others, highlighting a vein of hypocrisy that runs far, wide and very, very deep.

Even in the present, the chest-beating Nov. 25 court ruling stands uneasily alongside a jarringly cynical Nov. 29 White House coronavirus task force report that presses public health officials to "alert the state population directly" if local and state officials dither and hesitate and balk at policies and protocols safeguarding the public. Quite obviously, enough legal giants on the highest court in the land judge the situation dire enough to protect their own hides if not always those of their lowly subjects. Any Americans seeking to personally witness discourse and debate between jurists and attorneys over constitutional issues or to even visit the Supreme Court temple are today greeted with this: "Out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court building will be closed to the public until further notice. The building will remain open for official business."