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The Circus is Coming for the Courts

Moments before rioters broke into the Capitol last week, Sen. Ted Cruz told his colleagues on the Senate floor that a unified vote to reject electoral votes would “astonish the viewers.”

Rarely are our elected officials so honest about their motivations, but long before the “monstrous tragicomic scene” at the Capitol (to use Burke’s words), it had become evident that two of the federal government’s three branches had devolved to little more than a circus show. Floor debate, confirmation hearings, Rose Garden speeches, and daily press briefings are nothing more than performance art designed to “astonish” a narrow, usually partisan audience. Social media and cable talking-heads have made the elected institutions into megaphones to be used to demonstrate the right set of loyalties, pick the right fights, and effectively feign the right kind of outrage.

This is what Cruz and the other Trump loyalists were doing on January 6, and we saw just how real and dangerous the consequences of such theater can be.

The third branch has, to be sure, had its problems over the last several decades. But the judiciary has largely avoided the particular corruption of the other two branches. Off the cameras, away from social media, and tasked with answering questions that mostly bore and baffle the average citizen, judges and justices are the only members of the federal government whose primary role continues to require serious, high-level thought.

Moreover, post-election litigation vindicated the judiciary spectacularly. For months, the Left boldly and incessantly predicted that the voters would reject Trump, but that the president would stir up frivolous litigation to toss out votes and steal the election. His hand-picked judges and justices, which have been the crowning achievement of his presidency, would loyally back their patron and put an end to American self-government.

Trump has, of course, exceeded expectations when it comes to his part in this dystopian fantasy. But the courts didn’t blink an eye, upholding the law and proving that conservative jurisprudence—unlike much conservative campaign rhetoric—is not mere partisan hackery.

This ongoing episode, however, should be a warning that the particular brand of dysfunction afflicting the other branches of government is on its way to the judiciary.

The Left has already been trying to force the Court into the games played by our politicians by suggesting the possibility of court packing, even writing partisan threats into an amicus brief in 2019. The election litigation shows that the Right is more than happy to drag the courts down, too.

The briefs and affidavits filed by Trump allies in the judicial fight were precisely the kind of empty performances that have degraded the other two branches. They were never intended to make real legal arguments (just like no Senate confirmation hearing really seeks to assess the relevant qualifications of a nominee). Rather, they were designed to communicate messages to a political audience in the hope of controlling the narrative surrounding the election results. As such, they used fantastically flawed statistical projections, data that came from the wrong state, and flatly made-up claims about dead or ineligible voters. One Wisconsin suit even attempted to have a summons issued against the Electoral College. The people bringing these cases probably knew no court would take such claims seriously, but the court was not their actual audience. Several weeks before his speech in the Senate, Cruz offered to “astonish the viewers” by arguing Texas v. Pennsylvania at the Supreme Court. Had arguments ever taken place, they would have showcased his political, not his legal, expertise.

As many GOP figures voice more blatantly partisan expectations of federal judges, it is only a matter of time until such expectations begin to show themselves in electoral promises.

As a sign that the Supreme Court is being integrated into the harebrained narratives that drive the rest of our politics, the conspiracy theories started flying after it declined to hear a suit by Texas challenging Pennsylvania’s electoral procedures. Even though the justices have not been working in the Supreme Court building for months, reliable Twitter sources claimed that Chief Justice John Roberts was “overheard” in conference bullying justices into submission. Roberts also plotted with Justice Breyer over the phone about how to bring down Trump. And of course, he also vacationed on Epstein’s island. No serious person believes these stories, but unserious people—and those who would manipulate them—are not without considerable influence in our politics. Pundits and public figures on the Right are already presenting the Court as a compromised entity, even if they stop short of the most fanciful stories, and Trump blasted the justices for their disloyalty at the D.C. rally.

In an age of demagoguery, judges and justices who do their job by neutrally applying the law are perfect targets. This is a highly educated and credentialed elite whose job is to engage in often-technical questions that most people do not understand. Such a group perfectly fits the needs of the populist impulses that now dominate the GOP. Obscure procedural rules like standing or laches can easily be presented as mere technicalities—excuses used to cover up corruption. Judges can thereby be presented as part of the swamp’s elite, willing to use their power either to pursue their own agendas, or simply to prevent the deplorables from disrupting their comfortable status quo. Presenting the courts in this way serves both to create a foil for the people’s tribunes, and to undermine public trust in the rule of law, always a formidable barrier to the ambitions of designing men.

Looking ahead, another (otherwise innocuous) innovation of the Trump years may serve to further this trend. In 2016, as many conservatives worried that a reality show host would be over his head appointing judges, then-candidate Trump released a curated list of potential Supreme Court nominees with the help of the Federalist Society. This tactic has been widely praised on the Right, even by some who are critical of Trump on many other issues. The use of the list offered an additional layer of oversight and refinement of judicial selection, and it served to clarify the judicial consequences of elections. Given the regularity with which Republican nominees to the Court had drifted leftward, a degree of outsourcing to a group devoted to originalist and textualist jurisprudence was a smart move.

But if, as seems likely, Republican candidates will make such lists a firmly established expectation, they may create perverse incentives both for judges and presidents in the future. The use of these lists makes the nomination choice a more public matter. This was good when it allowed a group like the Federalist Society, an association genuinely interested in the promotion of a healthy jurisprudence, to help guide the choice of a political amateur. But the continued influence of such organizations cannot be taken for granted. As many GOP figures voice more blatantly partisan expectations of federal judges, it is only a matter of time until such expectations begin to show themselves in electoral promises. In fact, the last iteration of Trump’s Supreme Court list already included loyal partisan brawlers like Sens. Cruz and Tom Cotton.

Reliance on an established association of elites is no longer the modus operandi of the Republican Party. And after all, Federalist Society judges just betrayed President Trump. Given how many seem willing to use the judicial branch for the most outrageous of political objectives, the use of the campaign list might be the most prominent of the many possible avenues for bringing the courts fully into the maelstrom of our unhinged politics. What could go over better in a GOP primary than a promise to nominate a proven culture warrior to the bench?

And lest one hope that the Capitol violence would serve to jolt a sense of dignity and duty back into public servants, 147 Republicans still opted to use their votes to feed electoral conspiracy theories after order was restored. As long as it works, the trend will continue.

The courts are several degrees removed from these blustery political winds, and they just proved the Left’s dire predictions of coup-by-judiciary to be utterly ungrounded. But they are not entirely isolated. So while it seems unlikely that we’ll see Lin Wood-style screeds reflected in judicial opinions any time soon, the 2020-21 election fiasco should be a warning: the circus is coming to town.

Reader Discussion

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on January 11, 2021 at 08:22:40 am

Pretty one-sided stuff when you consider what has happened regarding 'vote harvesting' and all sorts of legal shenanigans. It's the people and none of these governmental bodies who will rid of the stench and muck of the swamp and the people who desire to continue it. There is always a reckoning, always.

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TruthInAction
on January 11, 2021 at 08:43:40 am

“Cruz offered to “astonish the viewers” by arguing Texas v. Pennsylvania at the Supreme Court. Had arguments ever taken place, they would showcase his political, not his legal, expertise.”

All citizens have standing when it comes to the validity of a presidential election. The evidence that Cruz would have presented in Texas v. Pennsylvania to The Supreme Court was never presented so you could not possibly know that Cruz would have “showcased his political, not his legal, expertise”.

We do know for certain, that any State that allows judges to rewrite the letter of the Law, in regards to a Presidential election, are now free to do so, for certain members of The Supreme Court, by a breach of their fiduciary duty, have set new precedent, which, no doubt, having unbound “the chains of The Constitution”, can only lead to mischief.

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N.D.
on January 11, 2021 at 09:44:36 am

There was never any serious consideration of evidence of fraud in the courts. Republican vote-count watchers were locked out of TCF in Detroit and windows covered so no one could see what was going on inside - I’ve spoken with friends who were there. When the counting was finished the lead has switched to Biden. In Pennsylvania the Secretary of State arbitrarily and illegally changed vote counting procedures set in law by the State Legislature. No rational person believes any of this was honest. And we’ve never had a real day in court.

Grove’s rant is insulting to the millions of us who are reasonably convinced the election was rigged. Law and Liberty needs a new associate editor.

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Charles N. Steele
on January 11, 2021 at 10:41:00 am

So the writer doesn't address the unconstitutional violation of MI. WI, GA and PA changing election laws w/o the legislators which is unconstitutional. Also what about the Alito telling the PA to separate ballots and then crickets. We have a SCOTUS which has no courage or virtue anymore and care only about their media popularity and wining and dining in DC... you know going the Kennedy Center and all like they are doing.

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Lady Di
on January 11, 2021 at 11:49:22 am

My Gawd, Edith! what utter gibberish!

"This is what Cruz and the other Trump loyalists were doing on January 6, and we saw just how real and dangerous the consequences of such theater can be."
"Edith" Grove joins those, who through lack of backbone and a coherent political philosophy ascribe blame to The Trumpster and his supporters.
Consider, if you will, that ALL, Yes, ALL demonstrations ARE, in fact, "theater" and are INTENDED to "astonish" the viewer. Was not MLK's March On Washington theater? A rather effective piece of performance art, was it not? Is there anyone who actually believes that a demonstration will CAUSE AN IMMEDIATE CHANGE IN LEGISLATION? Will it change the Court's decisions? NO! - it IS theater. It behaves like theater. And it is intended to be theater.
So why is this particular piece of theater singled out by another elite Never-Trumper who later bemoans the alleged, albeit not yet materialized "Reliance on an established association of elites is no longer the modus operandi of the Republican Party."
This, of course comes after converting one of Trump's major accomplishments, a Court tilted toward originalism, into another assertion of Trump's unfitness for office. How does Grove do this? After conceding that Trump's use of "The List" enabled a further 'refining" of the Judicial selection process (one would ordinarily assume this to be a "good"), Grove proceeds to condemn Trump for the possible future abuse of "The List." Yet, one must deal only with the facts that may be observed and NOT CONJURED out of the "tear gas clouds" in D.C., which of course Trump caused to be dispersed.
Were Trump's SCOTUS nominees acceptable? Were they more than acceptable when compared with "Wise Latina's", partisan hacks such as Ginsburg, Breyer, Steven's etc?
And how good were the Justices of the Pennsylvania Supreme Court which as Lady Di reminds us simply refused to comply with Justice Alito's demand that they separate one class of ballots. As others remind us, is it questionable whether or not allegations of fraud were ever given fair review. and, Yes, "laches" IS a technicality. whether it was intentionally used as a means of denying a hearing, a review of the allegations or was, in fact, properly employed by the PA. Supreme Court, the fact remains that a full hearing of the evidence was not conducted.

"But the judiciary has largely avoided the particular corruption of the other two branches. Off the cameras, away from social media, and tasked with answering questions that mostly bore and baffle the average citizen, judges and justices are the only members of the federal government whose primary role continues to require serious, high-level thought" [and significant political donations to the dominant political party in the District].
Or has Grove forgotten about all the "hare brained' decisions by District Court judges. Surely, there must have been "high level" thought involved because Grove assures us of that fact. Surely, no one can claim that the Ninth Circuit is not partisan.

Well, I will end here. After all, Grove has provided us with the proper passage from the New Catechism - It is Trump's fault - whatever the sin."

Now, Edith, Stifle Yourself!

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gabe
on January 11, 2021 at 12:57:43 pm

There is a much more sensible column by E. Donald Elliott at The American Spectator https://spectator.org/how-the-supreme-court-caused-the-riot/. For those who don't know, Mr. Elliott is Yale educated and employed and also recently separated from the law firm of Covington & Burling. And John Grove is what?

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Mike Timmer
on January 11, 2021 at 13:00:27 pm

Rather, they were designed to communicate messages to a political audience in the hope of controlling the narrative surrounding the election results.

Is that you, Russian Collusion? Where ya been, man? Hanging out with Quid Pro Quo and Emoluments? No? Obstruction Of Justice then, perhaps? You guys!

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QET
on January 11, 2021 at 13:50:37 pm

Why is it, one might ask, that L&L's critics think with greater discernment, write with more talent, and persuade more skillfully than L&L's editors?
Perhaps remuneration goes to the wrong people and should not go to editors who analyze poorly, write carelessly and fail to edit properly, but to their critics.

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paladin
on January 11, 2021 at 14:41:24 pm

The author seems to have forgotten about the Supreme Court's political decision-making in one landmark case after another for nearly the last 60 years, using its power to enthrone the justices' own values at the expense of local, democratically enacted laws.

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Michael D. Bates
on January 11, 2021 at 15:07:48 pm

‘'It is a truth universally acknowledged" that the Supreme Court justified slavery, helped start the Civil War, sustained Jim Crow, prolonged racial segregation, approved of the internment of Japanese-American citizens and the confiscation of their property, authorized the murder of over 50 million prenatal infants, undermined America's religious foundations, legalized and set loose in the land the forces of sexual anarchy and moral nihilism, gave unwarranted life and unlawful credibility to climate change hysteria; empowered and facilitated an unaccountable administrative state as the unconstitutional fourth branch of government, called an unlawful penalty a lawful "tax" so as to keep alive a much-hated law, and looked the other way while a presidential election was stolen. (If Mr. Grove is interested, I will provide him the Supreme Court citations.)

And those are jut a few of the deplorable things that have been done since 1789 by our "least dangerous branch," by Grove's beloved "judges and justices...the only members of the federal government whose primary role continues to require serious, high-level thought..." who have systematically and with little discontinuity deployed their "serious, high-level thought" so as to earn by a landslide the people's Oscar award to the "Most Destructive Branch," for having done far more to harm and weaken the USA, wreck its constitution, and divide Americans than could ever be attributed to the combined consequences of what Grove calls "the particular corruption of the other two branches."

Get real, man!
Read America's constitutional and political history, then think about it before you write about it.

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paladin
on January 18, 2021 at 12:14:49 pm

That is it, in a nut shell, about the august Supreme Court.

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EK
on January 11, 2021 at 15:19:08 pm

Mr. Grove's essay is welcome, not because it is persuasive, but because it is illustrative.

The essay is not persuasive because of two flaws: it is poorly reasoned and poorly written. As is the often the case with such writing, defects in reasoning are obscured by intrusive modifiers; adverbs and adjectives that betray the writer's conclusions without the need to defend them. Mr. Grove's piece is burdened with a surfeit of such modifiers: boldly, incessantly, frivolous, dystopian, empty, fantastically flawed, flatly made-up, harebrained, unserious, outrageous, etc. These are the subjective assessments of the author, to which of course he is entitled, but they call attention to the lack of useful argument that may have produced such assessments. He ends up not so much telling us about the facts of the case, but his opinion of them, and ultimately an opinion no more firmly grounded than that of "a narrow, partisan audience." Maybe Mr. Grove has good reasons for his conclusions. If so he did a poor job of presenting them.

Mr. Grove's over-reliance on loaded modifiers does not obscure other defects in his essay. As Gabe rightly points out, Mr. Grove's horror at the thought of a demonstration as part of the political process is selective. It is either ignorant of, or dismissive of history. This defect pervades much of "elite" opinion and this circumstance is significant in itself.

One should note that Mr. Grove qualified his admiration for the judiciary when he informed us that "the judiciary has largely avoided the particular corruption of the other two branches." One may ask the purpose of the qualifiers "largely" and "particular." Given the lack of further guidance in Mr. Grove's argument, one is free to assume that these are to excuse non-mention of highly relevant counter-arguments to his main thesis; that for example, a certain type of corruption in the conduct of the judiciary is the underlying cause of the "circus" of confirmation hearings going back at least as far as that of Judge Bork. There is an obvious omission of Senator Schumer's threat to Kavanaugh and Gorsuch that "uou have released the whirlwind and you will pay the price." It also elides such issues as the political influence on Supreme Court decisions going back at least as far as Dred Scott, or the obvious example of West Coast Hotel v. Parrish, the "switch in time that saved nine." To revisit an earlier point, it is not obvious from Mr. Grove's piece that he is aware of a history of impassioned "demonstrations" outside of the Supreme Court, nor other efforts on the part of identified interests to influence Supreme Court decisions.

Another characteristic of Mr. Grove's essay is his assumptions regarding "a highly educated and credentialed elite," an "established association of elites," and President Trump as a "political amateur." This type of apparent snobbishness, being an ersatz appeal to authority, is seldom persuasive, yet it appears to be the tactic chosen by Mr. Grove.

Hamilton, in Fedearalist 68 assured us

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.

Does Mr. Grove believe this? If not, how does he account for the failure of "the process of election?" One wonders if elite opinion is perhaps not too self-conscious; that it starts not with an assessment of Mr. Trump's qualifications or accomplishments, but rather that he suggests that "highly educated and credentialed" is not really "elite" after all. The glaring omissions in Mr. Grove's essay, e.g. that not only was the left predicting that Trump would contest a loss, but that the right predicted that irregularities introduced by mail in ballots and on-the-fly changes in election procedures would present opportunities for fraud, highlight a bias, wholly legitimate in free discourse, but detrimental to the pretensions of the argument. Mr. Grove has apparent sympathies with the idea that "elites" have some sort of extra-Constitutional authority ordained by superior temperament, wisdom, and all-around wonderfulness. One is left to wonder if Mr. Grove considers himself part of that elite, one of the estates of American government consisting of academia, professional politicians, the commentariat, the entertainment industry, ossified bureaucracy, etc. that considers themselves entitled to see to their own interests, and flatter their own self-esteem before deigning to lecture the riff-raff.

Truthinaction, in the first comment here, actually has it right: the pretense and arrogance of the elites is at the sufferance of the people, and there is no amount of tut-tutting Trump's character short-comings, or patronizing lectures to "the average citizen" that will change that. If we allow, as we should, Mr. Grove the metaphor of a circus, we are entitled to wonder if perhaps the "elites" - the experts, the "highly educated and credentialed," the think-tank chin-strokers, the academics - are not in fact, the clowns.

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z9z99
on January 11, 2021 at 19:38:31 pm

Grove's essay is to conservative commentary as Frank Gehry's two monstrosities are intelligent architecture:
https://www.dwell.com/article/frank-gehry-buildings-7d915bdf/6248561033638289408

https://www.dwell.com/article/frank-gehry-buildings-7d915bdf/6248580456654114816

From the latter photo, a description:
"Everything looks improvised, as if thrown up at the last moment. That's the point."

One wonders: "IS that the point" - to overwhelm with all manner of distortions, shapes to overwhelm the logic of rational (political) constructions.

All that being said, let us not turn into Facebook, Twitter or Amazon and cancel Grove.
After all, we NEED these types howling on the walls to remind us what we are up against.

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gabe
on January 12, 2021 at 08:40:00 am

Grove's essay has no redeeming social value, but Gehry's imprudent work brings at least some good news: DC's homeless now have a new place to camp out, the Eisenhower Memorial on Independence Avenue. The bad news is that, while the homeless like the plein air ambience of its Gehry Effect, Ike's memorial is the biggest disaster bearing his name since he made Earl Warren his Chief Justice. Self-styled as a "living memorial," the Eisenhower Memorial is to architecture what the Warren Court was to the Constitution.
BTW: Ike's Memorial and the Humphrey Building's (HHS' Headquarters,) Brutalist architecture, the Maoist quality of the Martin Luther King, Jr. Memorial, and the pile of limestone known as the National Museum of the American Indian have completed the work of converting Independence Avenue into DC's "Modernist Row."

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paladin
on January 12, 2021 at 12:09:17 pm

DON'T, I repeat, DON'T get me started on the Ike Memorial.
I may be moved to "insurrection."

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gabe
on January 11, 2021 at 20:59:28 pm

"Away you go, Paladin!"

I posted three comments on this very poor article, the 1st one early this morning and two more this afternoon. The L&L censor deleted the 1st comment, the one which began, "What a foolish article!" (It was surely that.) I suspect the other two comments will be taken down soon.

So much for "classical liberals." HaHa the hypocrisy.
Hypocrisy aside, what is baffling is L&L's failure to employ talented editors rather than mediocrity.

L&L blends nicely with the new Democrat Party, having proven that L&L poses no risk of serious opposition to the Democrats' cancel culture, actually endorses it, and, like the Democrat Party, countenances only free speech agreeable to its ideology.

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paladin
on January 12, 2021 at 14:30:20 pm

Because the once-prevalent concept that speech restrictions ought to be content-neutral has been completely discarded by virtually everyone today. Private fora--Facebook, Twitter, L&L--have proven unable to refrain from using their power. And that is not necessarily a fault, or, if it is, it is human fault. Power never goes unused. That is why the Founders placed certain things beyond the power of the (federal) government, free speech being one of them. Because they were fully aware that unless that were removed from the government's power, there would soon be no freedom of speech.

Private fora once made a big show of permitting, encouraging even, free commentary (subject to restriction of some obscenities which were supposed to be applied to all speakers). But lately every forum has determined to flex its own power of censorship: to prevent dilution of or distraction from the opinions and ideologies privileged by the forum (at least in L&L's case, unlike, say, Facebook, promotion of a certain viewpoints & opinions is it's raison d'etre), and possibly also to spare the forum's writers from the anguish of contradiction, disapproval and insult. The forum exists (whether founded that way, as with L&L, or made that way by executive fiat, as in FB and Twitter) for the purpose of promulgating speech of a certain kind, and only that speech will be permitted, and only agreement with that speech will be tolerated. In some fora, commenting has been disabled altogether (TAI, The Federalist). They would probably justify that by saying that why should commenters (such as myself, who is a chief and grave offender) be allowed to post our own essays (for that is what they often are) on a site maintained and paid for by others? But I think it is more than that. L&L hasn't gone so far, IMO, as other fora, but I can't understand why Paladin in particular gets under its skin so much.

In any case,

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QET
on January 13, 2021 at 11:18:55 am

I see that L&L deleted Gabe's reply to my complaint that one of my comments was deleted. These people selectively delete comments, then selectively delete complaints about being deleted, and then, more selectively yet, delete complaints that affirm the complaints about being deleted.

Work, work, work!
A writer can work from sun to sun, but a censor's work is never done.

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paladin
on January 12, 2021 at 15:37:31 pm

Gee whiz cheese wiz!
Gabe and QET, as I recall (with my very good memory) in the deleted comment all I said about Grove's article was that "one would have to be a political blockhead to write such political piffle and guilty of editorial malfeasance to publish it." I also said that Grove had "joined the barking jackals, laughing hyenas and other such howling creatures that were circling the wounded lion." (Trump, of course.)

That mudderfugger stuff by Grey's Lobotomy and the suggestion of having sex with one's mother is nauseating. I wouldn't talk like that to my worst enemy. Too vulgar and utterly lacking in literary imagination and style. I guess I'm just not a ''classical liberal." Did John Stuart Mill write like that? I must re-read "On Liberty."

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paladin
on January 13, 2021 at 11:57:11 am

"...monstrous tragicomic scene” at the Capitol (to use Burke’s words), it had become evident that two of the federal government’s three branches had devolved to little more than a circus show. Floor debate, confirmation hearings, Rose Garden speeches, and daily press briefings are nothing more than performance art designed to “astonish” a narrow, usually partisan audience. Social media and cable talking-heads have made the elected institutions into megaphones to be used to demonstrate the right set of loyalties, pick the right fights, and effectively feign the right kind of outrage." What is there to disagree about here?

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Anthony
on January 14, 2021 at 19:36:34 pm

Yes, it is performance art. Here is another example of performance art - this one during the riot.

https://youtu.be/WkSiWfqy1YM

WATCH IT BEFORE IT DISAPPEARS.

In it we observe the self admitted Antifa member who claimed on both CNN and Foxnews that he was only thereto observe. The video shows something quite different as he encourages others to storm the Capitol. At one point he claims he has a knife to get to the front of the crowd and urge them on.
Yeah, and Grove blames it on Trump/ Give me a break!

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gabe
Trackbacks
on January 11, 2021 at 10:20:54 am

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on January 12, 2021 at 02:31:22 am

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