Deciding When the Time is Right
The Dominion/Fox settlement, Dianne Feinstein's absence and the late RBG's decision not to retire raise questions about when to keep fighting and when to move on
I’m sure you’ve read it by now: Dominion Voting Systems took the money, $787.5 million, one of the largest defamation lawsuits in U.S. history and the largest ever involving a major news organization. This last-minute settlement on Tuesday freed Dominion from a brutal trial that surely would have been appealed and appealed if the jury found Fox guilty of defamation. Dominion is now onto six other pending suits, including ones against Newsmax, OAN, former Trump lawyers Rudy Giuliani and Sidney Powell, My Pillow CEO Mike Lindell and Overstock.com founder Patrick Byrne.
Meanwhile, democracy and truth lovers can now shift hopes to Smartmatic, another voting technology company currently in discovery, in its $2.7 billion defamation lawsuit against Fox. “Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” a Smartmatic spokesperson said. “Smartmatic will expose the rest.”
I understand the decision Dominion made on behalf of itself and its shareholders. Dominion’s leadership has expressed how their suit had already made public the egregious rejection of the truth by Fox hosts as they chose ratings, profits and power over their responsibility to not lie to their viewers about the outcome of the 2020 election. “Over two years ago, a torrent of lies swept Dominion and election officials across America into an alternative universe of conspiracy theories, causing grievous harm to Dominion and the country,” Dominion lawyer Justin Nelson said after the settlement. “The truth matters. Lies have consequences.”
But it’s hard not to be disappointed that Fox on-air propagandists like Tucker Carlson and Sean Hannity and their boss Rupert Murdoch were not forced to testify. Or that Fox was not compelled to explain or apologize for what it had done beyond the lukewarm statement that “we acknowledge the Court's rulings finding certain claims about Dominion to be false,” followed by this ridiculous assertion: “This settlement reflects FOX's continued commitment to the highest journalistic standards.”
And we can assume they’ll continue to misinform their viewers and maintain their hostile role in our democracy. Doubt it? The channel barely mentioned the settlement. For the moment, Fox got to sweep the lies back under the rug. “With the settlement, everybody wins,” First Amendment lawyer Martin Garbus said right after the settlement was announced. “Fox goes its way. Dominion gets cash.”
My view? Let’s not doubt that Fox can absorb this expense, what with some $4 billion in cash on hand in the recent quarter. And anything less than exposing Fox lies and holding its cynical, anti-democratic propagandists accountable—so maybe, just maybe, some of the cultists might get the idea they’ve been egregiously lied to about election fraud and the real 2020 loser—is a loss for America.
This case has also gotten me thinking about the decision of 89-year-old California Sen Dianne Feinstein, who has been out of office since February, reportedly dealing with a bad case of shingles. Her absence has stymied the Senate Judiciary Committee, equally divided between Republicans and Democrats without Feinstein, stopping the advance of judicial nominees to the full Senate. This is on top of increasing public awareness of her short-term memory challenges.
She may have agreed not to seek re-election next year, opening the campaign for her seat by Reps. Adam Schiff, Katie Porter and Barbara Lee. But her refusal to resign now is a disappointing example of a public servant who failed to accept her responsibility for the good of the country, whether by stubbornness, ego, declining mental acuity or just plain carelessness.
“If this goes on month after month after month, then she’s going to have to make a decision with her family and her friends about what her future holds,” Minnesota Sen. Amy Klobuchar said this week. “This isn’t just about California; it’s also about the nation.”
After a Senate career of more than 30 years, this ending leaves a sour note to what could have been a time to celebrate and honor her.
This failure to act reminds me of the decision the much-beloved Supreme Court Justice Ruth Bader Ginsburg made to hold onto her seat, even though it was in her power to resign and let President Barack Obama choose her replacement rather than the man who next occupied the White House. That was especially true in 2013 and 2014 when the Democrats still controlled the Senate.
Her proud career to help the country achieve greater equality will always include that unfortunate question at the tail end: Shouldn’t she have done the right thing by leaving the bench a little bit sooner?
“I was struck by how many people I spoke with, including friends, acquaintances and former clerks, felt she should have resigned at the time and that her staying on was terribly self-centered—a view I share,” noted Dorothy Samuels, a former legal editorial writer for The New York Times who was working on a book about Ginsburg beginning in 2018, two years before the justice’s death.
Add this choice to stay to the list of historical “what ifs,” a decision fleshed out by Ginsburg’s daughter, Jane: “I think that Mother, like many others, expected that Hillary Clinton would win the nomination and the presidency, and she wanted the first female president to name her successor.”
But that wasn’t the hand history dealt Justice Ginsburg or the country. Now we are all witnessing the unraveling of her legacy.
Again and again, we have watched as powerful figures—often caught up with their own self-importance and the desire to hold onto power—fail to recognize when moving on is the better choice for the good of the country and their own reputations. And as much as we might hope a corporation like Dominion would prioritize the public interest, we should expect that their financial interests will lead them to forsake the bigger fight.
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To be fair to RBG, even if she had resigned and President Obama nominated someone else, there’s a high probability that like Mr Garland, they would never have been seated on the court. And as they say, a bird in the hand is worth two in the bush. So I don’t see her decision necessarily as being selfish - she may indeed have been thinking of the country but lost her gamble.
Monday I emailed Senator Feinstein encouraging her to do the honorable thing and resign. Many of us who are on Post.News did this. Then yesterday I emailed my Senior Senator, Richard Durbin, Chair of the Senate Judiciary Committee concerning the vacancy on that committee resulting from Feinstein's prolonged absence. McConnell has prevented Durbin from putting in a replacement. I believe Durbin wanted Senator Ben Cardin from Maryland to replace her on the committee. I do not understand if there is a legislative procedure in the Senate that would allow Durbin to override McConnell's latest stunt.