Sunday, April 9, 2017

Sunday Reading

What A Week — Charles P. Pierce.

The final dismal act in the perpetually dismal drama through which the late Antonin Scalia was replaced on the Supreme Court by Neil Gorsuch played out in a U.S. Senate in which everybody couldn’t wait for their super-secret afternoon briefing about the big boom-boom in Syria that, in the words of CNN’s eternal sucker, Fareed Zakaria, “made Donald Trump the President of the United States.”

So, with the old Senate rules on such matters having been shitcanned on Thursday afternoon, Gorsuch slid through with 55 votes. For some reason that is both sadly inevitable and completely unfathomable, after all that happened, Democrats Heidi Heitkamp, Joe Manchin, and Joe Donnelly all voted in favor of the nominee. And thus does poor, frozen, Alphonse Maddin, who committed the fireable offense of saving his own life, or so determined the latest associate justice of the United States Supreme Court, pass from history as someone who really doesn’t count anymore. He was political grist in a political battle that was foreordained.

“There should be no vacancy on the Supreme Court to fill,” said Edward Markey, Democrat of Massachusetts, stating the obvious for the last time in this sorry episode. “President Obama nominated Merrick Garland. Republicans engaged in unprecedented obstructionism that made it possible for this confirmation process to be conducted. It’s always important to remember that the only reason there was a vacancy to fill is the Republicans put in place a process that made it possible to steal this seat from Barack Obama, and they have now successfully delivered it to Donald Trump.”

Simply put, what happened to Merrick Garland has not happened to any other nominee to the Supreme Court, ever. Over the past few weeks, the word “unprecedented” has been thrown around in the debate over Gorsuch in ways that have clouded the meaning of the word. But, yes, presidents have nominated people during their final year in office who were confirmed. Justices have been filibustered for “partisan political reasons.”

(The opposition to Abe Fortas was really about his relatively liberal record on civil rights, not his ethics problems. That’s the reason Richard Russell pulled his support, along with his dissatisfaction with President Lyndon Johnson’s delay at filling a federal judgeship in Russell’s native Georgia, which certainly was political.)

None of those things were “unprecedented” which, if it means anything at all, means that something happens that never happened before. Merrick Garland’s inability to even get a cup of coffee with any Republican senator was truly unprecedented.

And, of course, it worked like a charm. It worked like a charm because there was no way for the strategy to fail. If Hillary Rodham Clinton had been elected, the Republican majority in the Senate would have Garlanded any nominee she put up. (I mean, Garland himself came recommended to President Obama by Orrin Hatch, who then spent the past two years saying what a bad idea his nomination was. This debate really sucked a great amount of pondwater.) But the president* squeaked through, so McConnell could finish the act of stealing the seat quickly.

The only way that McConnell could have been foiled would have been the election of a Democratic Senate majority in either 2014 or 2016. Considering those incoming classes included such stellar additions to the Senate as Deb Fischer of Nebraska and my new pal Joni Ernst from Iowa, McConnell got his way. Once you’ve done away with integrity, J.R. Ewing once cautioned us, the rest is a piece of cake.

Once McConnell committed himself to an unprecedented act of obstruction that actually was unprecedented, and once the great, indolent American electorate gifted him with a continuing, sheeplike Republican majority, it was an easy slide to what happened on Friday. He knew that the likes of John McCain could be relied upon to give him the mournful cover he needed to destroy the rules of the Senate in order to get Gorsuch confirmed. Any Republican who expresses sorrow at what happened to the filibuster in this process is either lying or terrified of a primary. There wasn’t a single defector, either on the vote to change the rules or on the confirmation vote. In fact, the pious murmuring over what “we” had done to the Senate was probably the most gorge-rising element of a fairly nauseating exercise.

So now, there is a full nine-person Supreme Court, and there is a reliably right-wing bloc consisting of Justices Alito, Thomas, Gorsuch, and Chief Justice John Roberts. Once again, Anthony Kennedy gets to be a Very Important Person on every important case. This is what everybody said they wanted—a “balanced Court,” a wish that mysteriously seems to materialize only when a Democratic president seeks to nominate someone. I still come back to Alphonse Maddin, the lost plaintiff, and the fellow whose plight prompted the most memorable moment in Gorsuch’s testimony before the Senate Judiciary Committee.

As Al Franken, Democrat of Minnesota, says, summing up not only the case of Alphonse Maddin, but of the entire process by which Neil Gorsuch will sit on the Supreme Court until after I’m dead:

When using the Plain Meaning rule would lead to an absurd result. It is absurd to say that this company is within its rights to fire him because he made the choice of possibly dying from freezing to death, or by causing other people to die by driving an unsafe vehicle. That’s absurd. I had a career in identifying absurdity and I know it when I see it.

The plain meaning of “unprecedented” covers what happened to Merrick Garland, who disappears from history as surely as poor Alphonse Maddin. The absurdity exception was rendered null and void in this process long ago.

Don’t Fall For It, Liberals — Joan Walsh on the praise of bombing Syria.

It shouldn’t be surprising, but it is to me nonetheless: Plenty of liberals who’ve long criticized Donald Trump as unfit to be president are praising his strike on Syrian airfields.

On CNN’s New Day Thursday, global analyst Fareed Zakaria declared, “I think Donald Trump became president of the United States” last night. To his credit, Zakaria has previously called Trump a “bullshit artist” and said, “He has gotten the presidency by bullshitting.” But Zakaria apparently thinks firing missiles make one presidential. On MSNBC, Nicholas Kristof, an aggressive Trump critic, said he “did the right thing” by bombing Syria. Anchor Brian Williams, whose 11th Hour has regularly been critical of Trump, repeatedly called the missiles “beautiful,” to a noisy backlash on Twitter.

While The New York Times posted several skeptical, even critical stories, it gave us this piece of propaganda: an article initially titled “On Syria attack, Trump’s heart came first,” buying the president’s line that his opposition to anti-Assad military action was reversed by seeing the heartrending photos of children struggling to breathe after a chemical attack.

“Even beautiful babies were cruelly murdered in this very barbaric attack,” Trump declared. “No child of God should ever suffer such horror.” (No word how he felt about ugly babies.) The piece also failed to even mention that Trump is keeping refugees from the Syrian war, even children, out of the United States. Victims of chemical weapons are “beautiful babies”; children trying to flee such violence require “extreme vetting” and an indefinite refugee ban. After a public outcry, the Times changed the headline.

Even some Obama administration veterans praised Trump’s action. “President Donald J. Trump was right to strike at the regime of Syrian President Bashar al-Assad for using a weapon of mass destruction, the nerve agent sarin, against its own people,” Antony Blinken, a deputy secretary of state under Obama, wrote in The New York Times. Blinken went on to say, correctly in theory, that what must come next is “smart diplomacy.” But he knows that Trump has shown himself incapable of doing anything smart, especially diplomacy.

Remember just last week, phantom Secretary of State Rex Tillerson said in Turkey: “I think the…longer-term status of President Assad will be decided by the Syrian people.” The Kremlin-funded Russia Today described that as “a U-turn from Washington’s long-held policy” that Assad must go. Six days later, Tillerson was telling reporters, There is no doubt in our minds, and the information we have supports, that the Syrian regime under the leadership of Bashar al-Assad are responsible for this attack. It is very important that the Russian government consider carefully their support for Bashar al-Assad,” because “steps are underway” to muster international support for a strike. Russia Today seemed disappointed that the United States believes Assad is behind the gassing of his people, arguing that the source is the international rescue group White Helmets, which RT shockingly calls “al-Qaida affiliated.”

Any liberal who praises these missile strikes has to account for what comes next. Obviously, Trump cares little about diplomacy, leaving Tillerson out of key meetings and slashing the State Department’s budget. On Wednesday night, the White House released a photo of his team receiving a briefing on the Syria attack. At the table were Commerce Secretary Wilbur Ross; Treasury Secretary Steve Mnuchin; Goldman Sachs alum Dina Powell, deputy national-security adviser; along with Jared Kushner; Steve Bannon; and Bannon’s sidekick Steven Miller. Why are the Commerce and Treasury secretaries there? What explains why Tillerson, who was in Palm Beach with the president, was not?

The noisiest outrage against the Syrian attack isn’t coming from the left, but the right—particularly the alt-right. Trump’s noninterventionism and his friendliness to Bashar Assad and Vladimir Putin were big selling points to white nationalists. Now that he seems to be challenging both men, his former acolytes are enraged. On Twitter, alt-right white supremacist Richard Spencer called it a “total betrayal”; the white nationalists at VDARE blamed it on the “boomercucks” in the administration. Ann Coulter went apoplectic:

It was disappointing to see Hillary Clinton say Wednesday afternoon that she thought air strikes on Syrian airfields were an appropriate response to the chemical-weapon attack. She was always more hawkish than I wished, and that shows it. But it’s wrong to insist she’d have done the “same thing” as Trump. Clinton’s secretary of state wouldn’t likely have told Assad we were no longer concerned about removing him; if she did fire missiles at Syrian airfields, she would have done so with a clearer notion of what comes next. Trump appears to be clueless.

Senator Bernie Sanders, meanwhile, didn’t quite oppose the Syrian strike, calling Assad a “war criminal” and lamenting his murder of civilians with chemical weapons. But noting that “it’s that it’s easier to get into a war than get out of one,” Sanders demanded that Trump “must explain to the American people exactly what this military escalation in Syria is intended to achieve, and how it fits into the broader goal of a political solution, which is the only way Syria’s devastating civil war ends.”Senator Kirsten Gillibrand sounded closer to Sanders than Clinton on the airstrikes, decrying Trump’s “unilateral military action by the US in a Middle East conflict” as well as “the absence of any long-term plan or strategy to address any consequences from such unilateral action.” Like Sanders, she demanded that Trump seek authorization of military force from Congress. By contrast, her New York colleague Minority Leader Chuck Schumer called Trump’s move “the right thing to do.” Schumer may find that many constituents think it was the wrong thing.There remains the possibility that some of this is theater. It should be said: Some observers, besides RT, say it’s unproven that the chemical weapons attack came from Assad; rebels could be behind it. There’s also the possibility of a kabuki performance from Trump, Putin, and Assad. We already know the United States warned Putin of the coming missiles, and that Putin warned Assad, whose military moved airplanes and other military equipment away from the intended target. Trump, plummeting in the polls, his domestic health-care and tax plans on the rocks, the investigation into Russian election meddling closing in on his team, really needed a boost; maybe they gave it to him. Trump’s sudden about-face on Syria makes it hard to judge.

However, according to Syrian state media, nine civilians, including four children, were killed in the air strikes. That is not kabuki. Trump has said nothing about those “beautiful babies,” nor will he. Liberals have to sober up and stop being besotted by beautiful missiles and presidential cruelty. Trump is the same Trump he was Tuesday, and that should scare all of us.

Mike Pence’s Other Rules — Ethan Kuperberg in The New Yorker.

In 2002, Mike Pence told the Hill that he never eats alone with a woman other than his wife. —the Washington Post.

Two women who are not his wife

One woman who is not his wife, and one man who is short

Photographs containing women who are not his wife

Men who have the same name as his wife

Dictionary open to the page containing “wife,” “sex,” or “vagina”

Curvy lampshade

The Temptations’ “Greatest Hits” album

Sofa with more than two pillows

Sofa with one long, buxom pillow

Peanut butter (smooth)

Shag rugs

“Will & Grace” DVDs

Legislation that benefits women other than his wife

Paintings of ripe fruit

Jared Leto

Garlic, a crucifix, direct sunlight, or a vampire hunter other than his wife

Windows with views of hills that, if you squint, look sort of like sideways breasts

Dogs that are not German shepherds

A blank white wall where an image of a woman other than his wife could be projected

Peanut butter (chunky)

An empty tissue box that he could stick his dick in

Poor people

Doonesbury — Evil is as evil does.

Wednesday, April 5, 2017

Copycat

Politico reports that some of Neil Gorsuch’s writing came from someone else.

Supreme Court nominee Neil Gorsuch copied the structure and language used by several authors and failed to cite source material in his book and an academic article, according to documents provided to POLITICO.

The documents show that several passages from the tenth chapter of his 2006 book, “The Future of Assisted Suicide and Euthanasia,” read nearly verbatim to a 1984 article in the Indiana Law Journal. In several other instances in that book and an academic article published in 2000, Gorsuch borrowed from the ideas, quotes and structures of scholarly and legal works without citing them.

The findings come as Republicans are on the brink of changing Senate rules to confirm Gorsuch over the vehement objections of Democrats. The documents could raise questions about the rigor of Gorsuch’s scholarship, which Republicans have portrayed during the confirmation process as unimpeachable.

The White House on Tuesday pushed back against any suggestion of impropriety.

“This false attack has been strongly refuted by highly-regarded academic experts, including those who reviewed, professionally examined, and edited Judge Gorsuch’s scholarly writings, and even the author of the main piece cited in the false attack,” said White House spokesman Steven Cheung. “There is only one explanation for this baseless, last-second smear of Judge Gorsuch: those desperate to justify the unprecedented filibuster of a well-qualified and mainstream nominee to the Supreme Court.”

However, six experts on academic integrity contacted independently by POLITICO differed in their assessment of what Gorsuch did, ranging from calling it a clear impropriety to mere sloppiness.

“Each of the individual incidents constitutes a violation of academic ethics. I’ve never seen a college plagiarism code that this would not be in violation of,” said Rebecca Moore Howard, a Syracuse University professor who has written extensively on the issue.

Elizabeth Berenguer, an associate professor of law at Campbell Law School, said that under legal or academic standards Gorsuch’s similarities to the Indiana Law Journal would be investigated “as a potential violation of our plagiarism policy. It’s similar enough to the original work.”

“I would apply an academic writing standard,” said Berenguer, who teaches plagiarism and legal writing. “Even if it were a legal opinion, it would be plagiarism under either.”

The White House provided statements from more than a half-dozen scholars who have worked with Gorsuch or helped oversee the dissertation he wrote at Oxford University that was later turned into his book. They included John Finnis, professor emeritus at Oxford; John Keown of Georgetown University, one of the outside supervisors for Gorsuch’s dissertation; and Robert George of Princeton University, the general editor for Gorsuch’s book publisher.

The experts offered by the White House asserted that the criteria for citing work in dissertations on legal philosophy is different than for other types of academia or journalism: While Gorsuch may have borrowed language or facts from others without attribution, they said, he did not misappropriate ideas or arguments.

The White House experts don’t seem to get the gist of what defines plagiarism.  You can’t “borrow” language or facts without citing them and not run straight into it.

Bonus Track: Josh Marshall has some good thoughts on why it’s important to filibuster the Gorsuch nomination.

As Rep. Adam Schiff put it yesterday on Twitter, Mitch McConnell’s historically unprecedented and constitutionally illegitimate decision to block President Obama from nominating anyone a year before he left office was the real nuclear option. The rest is simply fallout. Senate Republicans had the power to do this. But that doesn’t make it legitimate. The seat was stolen. Therefore Gorsuch’s nomination is itself illegitimate since it is the fruit of the poisoned tree.

Democrats likely have no power to finally prevent this corrupt transaction. It is nonetheless important that they not partake in the corruption. Treating this as a normal nomination would do just that. There are now various good arguments to vote against Gorsuch’s nomination on the merits. But to me that’s not even the point. Democrats should filibuster the nomination because it is not a legitimate nomination. Filibustering the nomination is the right course of action. If Republicans react by abolishing the Supreme Court filibuster, so be it. It didn’t really exist anyway. Again, they should filibuster this nomination because it is the right thing to do.

Copy that.

Tuesday, April 4, 2017

Sunday, April 2, 2017

Sunday Reading

Taking Back Kansas — Benjamin Wallace-Wells in The New Yorker on how moderate Republicans are bring sanity back.

This week, the Kansas Senate voted by a wide margin to expand the state’s Medicaid coverage. A majority of Democrats supported the bill, as might be expected, but so did a majority of Republicans. That the vote was both bipartisan and decisive is a modest but promising sign for the future of public health insurance. But the vote had an added significance because it took place in Kansas. For the six years that Sam Brownback has been Governor, the state has been the scene of what may be the nation’s most extreme experiment in conservatism. The Medicaid vote capped an extraordinary year-long turn against Brownback, in which many of his allies in the legislature were defeated in primary and general elections, and, in the legislative session now coming to a close, his budget and priorities were rejected. The political history of the past quarter century has been one of deepening polarization. The reaction in Kansas suggests that it is still possible for a party to go too far—that there is still a center in American life which may yet hold.

Brownback, who has a law degree from the University of Kansas, is possessed of a low-key personal style and a high-intensity conservative politics. He has been the defining figure in Kansas political life for two decades, since he won Bob Dole’s Senate seat in the 1996 election. In the mid-aughts, when evangelical conservatives were understood to be the country’s most powerful political bloc, Brownback had seemed a plausible representative for the G.O.P.’s future—a rigid social conservative who found some ways to appeal to moderates. He made increasing American aid to Africa his cause, and cited the example of William Wilberforce, the Christian abolitionist who helped lead the campaign to end the slave trade in the British Parliament, so often that there was a rash of editorials about the rise of “Wilberforce Republicans.” But national politics grew more liberal and optimistic, and after a brief bid for the 2008 Republican Presidential nomination Brownback returned to Kansas, where he won the Governor’s office in 2010. In his first term as Governor, he focussed on a different kind of problem. People were leaving his state for “faraway places that entice our children to abandon the communities that nurtured them,” he wrote, in 2012. “I don’t have oceans and I don’t have mountains,” he pointed out to an interviewer last year. “Just got mountains of grain.”

Brownback decided to remake Kansas by radically cutting taxes, an experiment to draw new business and people to the state. “We can no longer afford to view our current economic crisis as something distinct and apart from the crisis of family and community decay,” he wrote in an op-ed, in 2012. Brownback persuaded the legislature to adopt budgets that would eventually eliminate taxes on three hundred and thirty thousand small businesses, and cut the state’s top income-tax rate by a third. Brownback chose to opt out of Obamacare’s Medicaid expansion, which denied coverage to more than seventy-five thousand Kansans.

But the flight out of Kansas did not reverse, and as revenues diminished even basic state functions began to erode. Budget shortfalls were so severe that Kansas turned to raiding its highway-construction fund, which meant that highways were not repaired. Without Medicaid patients, a large rural hospital in Independence had to close. Public schools saw their performance on standardized tests decline, as the state contributed less to their budgets; the Kansas Supreme Court held in two different cases that the state’s underfunding of education was in violation of its own constitution. Brownback became the least popular governor in the country—last September, his approval rating was at twenty-three per cent. Seven separate organizations were founded with the goal of electing moderates, and one of them, the Save Kansas Coalition, persuaded the four living former governors of the state—two Democrats and two Republicans—to denounce Brownback and endorse moderate candidates for legislative offices. Mike Hayden, a former Republican Governor, said that Brownback and his allies “should be ashamed” of what their tax cuts had done to the state. “We virtually don’t have a penny in our pocket,” Hayden said. “The experiment is failing.”

In the Republican primaries last year, moderates ousted more than a dozen Brownback supporters, most of them explicitly declaring their opposition to the Governor. In the general election, more than a dozen more Brownback Republicans lost to Democrats. When the legislature reconvened, in January, a moderate coalition rejected Brownback’s budget and voted to expand Medicaid. (Yesterday, Brownback vetoed the legislation; the moderates may be a few votes short of overriding him.) At a forum after the election, the executive director of the Kansas Republican Party suggested that there were “some voters who were anti-Brownback and there were others whose main motivation was they didn’t like the status quo.” He conceded, “They had this uncomfortable feeling about Kansas.”

State legislative elections receive little attention, but their stakes are high, making them a good target both for lobbyists and for ideological factions. Harvard’s Theda Skocpol has found that the best predictor of whether a state legislature voted to curb public-employee bargaining in 2011 was not public opinion within the state but whether the Koch-backed group Americans for Prosperity, which was pushing the issue, had a paid staffer there. In Kansas, legislators make less than twenty thousand dollars each year, which may mean that candidates tend toward the committed fringes. In 2011, a Brownback ally in the legislature named Virgil Peck said, about a bill proposing that feral hogs be shot from helicopters, “Looks to me like, if shooting these immigrating feral hogs works, maybe we have found a solution to our illegal-immigration problem.”

The revolt of the Kansas moderates has some of the feel of a social restoration, in which small-town institutionalists reclaimed Republican politics from the ideologues who had taken over. Peck was beaten in the Republican primary by a retired Air Force commander. A school superintendent in Stafford beat a more conservative incumbent; so did a retired school superintendent from Tonganoxie. The moderate coalition that voted to expand Medicaid coverage was led by a retired anesthesiologist, Republican Barbara Bollier, who had been kicked off the Health Committee when the State Assembly was in more radical hands. Last week, shortly after the vote to expand Medicaid coverage, the State Senate passed a resolution condemning pornography. That seemed like a good hint at where Kansas politics might go, guided by the remnant faction of religious conservatives and the rising one of school administrators.

For all its excess, the Brownback era obeyed a certain logic, which also helped fuel the rural support for the Trump campaign. If you believed that your home was under existential threat, then an extreme politics made sense. In 2015, the Times Magazine published a moving story by Chris Suellentrop, a journalist and Kansas native, whose uncle, a state legislator with a serious and temperate disposition, had joined the Brownback movement. Gene Suellentrop was sensitive to his fellow-Kansans’ plight. Without an aggressive effort like Brownback’s to draw business and attention, he told his nephew, “everyone else will see us as flyover country.” In retrospect, voters’ perceptions of the state’s precariousness and Brownback’s radical politics acted as mutual accelerants. The question now is whether those levers can act in reverse—whether moderate politicians can persuade residents that no social precipice is near, that Kansas is not dying.

Do It Now — Jonathan Chait on the need to filibuster Neil Gorsuch.

Neil Gorsuch will be the next Supreme Court justice. “He’ll be on the floor of the Senate next week and confirmed on Friday,” promised Mitch McConnell, and there is no reason to doubt him. Either Democrats will filibuster, and Republicans will change Senate rules to prevent filibusters of Supreme Court nominees, resulting in Gorsuch being confirmed, or Democrats will fail to filibuster, resulting in Gorsuch being confirmed. The only question at issue is in what fashion Gorsuch takes his seat. Republicans are fervently working to persuade Democrats to let Gorsuch take his seat without a change in the filibuster rule. Why do you think they care so much?

If Republicans are telling Democrats that any attempt to filibuster the Republican nominee will lead to the Republicans abolishing the filibuster, it stands to reason that the filibuster is not worth keeping around. What value is there in a weapon one’s adversary can disarm at any time?

Republicans have devised a somewhat complicated response to this objection. Yes, they concede, the filibuster is useless right now, in this instance. But that is only because the merits of this particular nomination so obviously and clearly lie on their own side. “If Neil Gorsuch isn’t good enough, there’s never going to be a nominee good enough, and so I don’t see any advantage to rewarding bad behavior,” says Senate Majority Whip John Cornyn. Republican senators’ “appetite is entirely a function of circumstance,” argues Liam Donovan, a Republican lobbyist. “Only seeing such a model jurist held hostage to cynical political whims would be enough to compel the righteous indignation necessary to go nuclear.” (Going “nuclear” means changing Senate rules to limit the filibuster.) If Democrats drop the filibuster, Republicans will leave it in place, and maybe Democrats will get to use it next time. Maybe!

One flaw in this argument is that it utterly ignores the circumstances by which Gorsuch came to his nomination. Yes, he is well qualified and respected by liberal peers. On the other hand, he only has the opportunity to claim a Supreme Court seat because Republicans violated a long-standing norm that allows presidents to nominate somebody — the exact parameters of who that somebody is being the subject of regular dispute — to fill a vacant seat.

The Republican incredulity that Democrats would have the gall to object to fine, upstanding Neil Gorsuch is quite special. (How can you complain about me picking up some money I found lying there on the sidewalk? Never mind whether it got there because I ripped the wallet out of your pocket.)

The notion that Republicans would somehow not be willing to abolish the filibuster for Trump’s next nominee, after being willing to do so to complete the wake of the judicial heist of the century, defies plausibility. Every Supreme Court vacancy counts for one vote. The next vacancy will matter just as much as this one. Sure, if Trump decides to nominate Michael Cohen or Scott Baio to the Court, some Senate Republicans might object. But Trump has clearly indicated that he defers on this subject to regular Republicans. The next judicial vacancy will seem at least as crucial as this one, and the pressure on Senate Republicans to confirm their party’s choice will be overwhelming.

We already live in a world where a Republican president has a 50-vote standard to confirm a nominee to the Court. The only question is whether Democratic presidents have the same standard. The worst possible outcome for Democrats would be to allow Republicans to fill a vacancy with 50 votes while forcing their party to muster 60. And there is a lot of reason to believe this is the case right now. Barack Obama’s last Supreme Court nominee, the highly respected and moderate jurist Elena Kagan, got the support of just five Republican senators, of which two were driven into retirement by actual or threatened primary challengers in part because of those votes. Once Democrats lost their supermajority, their ability to seat a justice probably disappeared with it.

In 2014, Ruth Bader Ginsburg told Elle that she did not want to retire in part because she believed Senate Republicans would filibuster any left-of-center nominee to replace her:

Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.

Mitch McConnell wants to preserve an ambiguous situation where the norms say one thing and the rules say another. This is to his advantage, because he is a serial violator of norms. This isn’t a moral question — he’s a brilliant tactician and he’s very good at identifying political strategies that are legal but which have not been used due to social convention. If McConnell can use the threat of the nuclear option to make the filibuster of a Supreme Court nominee a useless weapon for the opposing party, he can preserve it as a potential useful one for himself. If Democrats don’t make McConnell abolish the Supreme Court filibuster, he may use it to blockade their next nominee, and they will have only themselves to blame.

Double Bill — Two plays by William Inge that epitomize the plain-speaking charm of his characters and home town are running in repertory.  Elisabeth Vincentelli has a review.

Hal and Marie are young, gorgeous, vital. They’re also inopportune outsiders, wreaking havoc on seemingly tranquil communities.

As the catalysts in two William Inge plays of the 1950s, Hal (in “Picnic”) and Marie (in “Come Back, Little Sheba”) are inadvertent agents of change. But don’t expect melodramatic fireworks: The shows depict lives in turmoil with deceptive simplicity — an elusive quality that the Transport Group captures in the graceful revivals now in repertory at the Gym at Judson.

Inge doesn’t have the reputation of his contemporary Tennessee Williams, perhaps because he lacked Williams’s incantatory flamboyance, which encouraged myriad staging possibilities, audience devotion and a thousand campy spoofs. But his work burst with generous humanity and possessed a sure grasp on the power of intimacy — something these productions skillfully bring to the fore.

The director Jack Cummings III has staged both shows in close quarters for about 85 people at a time. The Kansas porches where the “Picnic” action takes place are gone, and Dane Laffrey’s scenic design consists of a few rusting deck chairs in front of a plywood back wall. There is period furniture in “Sheba,” which only reinforces the play’s take on claustrophobic middle-class despair. In each case, theatergoers are never more than a few feet from the actors — in some scenes, a few unsettling inches — turning from passive viewers to emotionally invested neighbors.

In “Picnic,” Hal (the likable but distractingly gym-buffed David T. Patterson) is an ebullient drifter who lands in a small Kansas town and starts doing odd jobs for Mrs. Potts (Heather MacRae). The mere presence of this pulchritudinous life force sends the local women into a spin, from a suddenly giddy Mrs. Potts to the young beauty Madge (Ginna Le Vine) to the single schoolteacher Rosemary (Emily Skinner). Even Madge’s boyfriend, Alan (Rowan Vickers), gets a touch of Hal fever.

The contaminant in “Sheba” is Marie (Hannah Elless), a pretty coed who rents a room from Doc (Joseph Kolinski) and his wife, Lola (Ms. MacRae). The older couple appear happy enough, but their obsession with Marie suggests fault lines. Doc is in Alcoholics Anonymous and sticks to meticulous routines as a way to cope; he also sneaks looks at Marie, his fixed expression imbued with guilt and creepy desire.

As for Lola, she engages in conversation with deliverymen (all portrayed by John Cariani); the connection is played as a result of unbearable loneliness rather than misguided flirtation. She treats Marie like a surrogate daughter (her actual child died soon after birth), pouring onto her the affection she probably unleashed on her now-missing dog, Little Sheba.

The story is fairly predictable, especially with a bottle of whiskey sitting on top of the fridge like a malevolent lighthouse luring Doc to the shoals. But the play proves spoiler-proof, the payoff simply devastating.

“Sheba” and “Picnic” have a lot in common, most notably their juxtaposition of disappointed older characters with younger ones who still have the luxury of options. Some of these options may not be healthy or enduring, but at least the young’uns can try again. They don’t realize what their older counterparts know: Nothing lasts, least of all joy and looks.  [Photo by Richard Termine/New York Times]

 Doonesbury — Topic of the day.

Thursday, March 23, 2017

Wednesday, March 22, 2017

Let’s Play Dodgeball

I caught a few minutes of Sen. Al Franken (D-MN) questioning Neil Gorsuch at his Senate Judiciary Committee hearing yesterday afternoon, including the part where Mr. Franken asked him point-blank where he stood on marriage equality.

Sen. Franken asked Judge Gorsuch how he felt volunteering to help re-elect President George W. Bush knowing that same-sex couples were facing having their relationships attacked as unequal.

“The amendments sent a clear message to lesbian and gay couples that their unions were not equal in the eyes of the law,” Franken said. “How’d you feel about the right to marry being put to the popular vote?”

Dodging, and saying he didn’t remember any involvement in the push to ban marriage, Gorsuch was then asked how he felt about marriage being banned for same-sex couples.

“My personal views? Any revelation of my personal views on this matter would indicate to people how I might rule as a judge – mistakenly, but it might,” Gorsuch insisted.

After reading a statement made by Ken Mehlman, who came out as gay several years ago, Franken asked Gorsuch how his views on marriage have changed since the 2004 election.

“Senator, my personal views, if I were to begin speaking about my personal views on this subject which every American has views on, would send a misleading signal to the American people – ”

“It is settled law,” Franken interjected.”

“It is absolutely settled law,” Gorsuch acknowledged. “There’s ongoing litigation about its application, and its impact, right now, and I cannot begin to share my personal views without suggesting mistakenly – ”

Franken again interjected and moved on.

This whole kabuki of asking a Supreme Court nominee a question like that isn’t to get him or her to come out and actually make a statement.  We all know that they’re going to dodge the questions just as Mr. Gorsuch did.  We saw that from every nominee going all the way back to Sandra Day O’Connor, and it doesn’t matter if it’s a nominee from a Democratic president — assuming they even get a hearing — or a Republican.

So why bother?  Why go through all of this ritual knowing that they will hedge and dodge and then once they’re on the court do exactly what the president who appointed him and the groups that backed him hired him to do?  Once he’s on the court it’s too late; he can’t be fired.  (It should be noted that presidents of both parties have been sandbagged by their own appointees.)

In this case I don’t think it’s aimed at Judge Gorsuch so much as it is at the senators who will vote to confirm his appointment.  I fully expect the Republicans to back him all the way, but I will be interested to hear from any Democrats who vote in favor of him how they can justify their vote after what the Republicans did to Barack Obama and Merrick Garland.  I’d like to see how they dodge that question.

Tuesday, March 21, 2017

Short Takes

F.B.I. confirms probe into Trump-Russia connection.

Neil Gorsuch goes before Senate committee.

U.S. to ban electronics on certain flights to and from the Middle East.

Stephen Hawking fears he may not be welcome in Trump’s America.

R.I.P David Rockefeller, 101, last grandchild of John D. Rockefeller.

Friday, February 24, 2017

Short Takes

Kim Jong-nam killed by VX nerve agent.

Arms Race: Trump calls for U.S. nuclear supremacy.

Hang in there, RBG — Ruth Bader Ginsburg says she’ll stay on SCOTUS as long as she can.

Miami-Dade and Broward schools to keep protections for transgender students.

Cheap Seats — Airlines’ no-frills flying taking off.

Friday, February 10, 2017

Court 3, Trump 0

The short version of the ruling from the U.S. Court of Appeals is that the Government can’t ban people from coming into the country based on the principle of “because we say so.”

A US appeals court has rejected President Donald Trump’s attempt to reinstate his ban on visitors from seven mainly Muslim countries.

The 9th US Circuit Court of Appeals said it would not block a lower-court ruling that halted the order.

Mr Trump responded with an angry tweet saying national security was at risk and there would be a legal challenge.

But the unanimous 3-0 ruling said the government had not proved the terror threat justified the ban.

“The government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the ruling said.

It also rejected the argument that the president had sole discretion to set immigration policy.

“Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all,” said the ruling. “We disagree, as explained above.”

Donald Trump’s lawyers did not make their case. In fact, according to three Ninth Circuit judges, they didn’t even really try to make their case. Rather than explaining why the temporary travel ban was needed, the administration argued that the president’s authority on immigration was so sweeping that they didn’t have to explain why the order was necessary.

According to the court, the government was unable to say why Mr Trump’s ban addressed a pressing national security threat that a temporary stay of the order would worsen. The lawyers for the challenging states, on the other hand, convinced the judges that re-imposing the order at this point would create further chaos by infringing on the due process rights of those on US soil, regardless of their immigration status.

By issuing a unanimous, unsigned opinion, the judges avoid accusations of partisan bias, as one of the three was a Republican appointee.

Mr Trump tweeted a sharp “SEE YOU IN COURT” following the decision.

The case will most likely go to the Supreme Court, and it will take a vote of five of the justices to overturn the lower court ruling.  Since there are only eight justices on the court — four liberal and four conservatives — chances aren’t too good that Trump will prevail.  In fact, that’s one of the reasons the court ruled to uphold the lower court: the Government did not prove that it would likely prevail.

In the spirit of our fearless leader, “NEENER NEENER.”

Wednesday, February 1, 2017

Save Us A Seat

Mother Jones has the background on Neil Gorsuch, Trump’s pick for the Supreme Court.

An Oxford and Harvard grad, Gorsuch, 49, is also one of the youngest sitting federal judges on Trump’s list—a selling point for a president looking to leave a lasting legacy on the court. He is a conservative in the mold of the late Justice Antonin Scalia and is considered an “originalist” who tries to interpret the law as the Founders would have. Also in his column: As one of the 10th Circuit judges who ruled in favor of Hobby Lobby against the Obama administration—exempting the company from federal requirements to provide employees with insurance plans that included free contraceptive coverage—his religious-right bona fides are solid.

But hard-core anti-abortion activists have been lobbying against Gorsuch and recently asked Trump to consider judges with a more proven record of anti-abortion advocacy from the bench. Andrew Schlafly, son of the late conservative icon Phyllis Schlafly, recently sent out an alert to supporters arguing that Gorsuch is “NOT pro-life” because he wrote an opinion noting his obligation to follow court precedent. Schlafly sees adherence to precedent as a deal-breaker and a sign that a judge won’t overturn Roe.

All that is very nice and I’m sure he’s probably very qualified, at least as far as his legal training and background, but I suggest that Senate Democrats give him the same due consideration that the last Senate gave President Obama’s nominee to fill the vacancy.

We have about 1,300 days until the next presidential election, so I don’t see any reason why we shouldn’t wait until America chooses a president to fill the seat, and any Democrat who votes to confirm Mr. Gorsuch should be have his ass primaried by a real Democrat next time he or she comes up for election.

And every time Mitch McConnell or John McCain or some other whiny or harrumphing obstructionist takes to the airwaves to complain about the Democrats playing politics with the Court or disrupting America’s business, we laugh in his face and reply “Merrick Garland.”

Short Takes

Trump picks Neil Gorsuch for Supreme Court.

Senate Democrats boycott two cabinet hearings, delaying vote.

California legislature considers statewide “sanctuary” law.

Homeland Security chief says he knew Trump immigrant ban was coming.

Trump state visit to Britain “difficult” for the Queen.

Israel not happy over Iran missile test.

Rabbit, rabbit, rabbit.

Friday, November 4, 2016

That Was Then, This Is Now

As I noted the other day, the Republicans are hell-bent on preventing a Democratic president from filling a vacancy on the Supreme Court.  And as I noted, that’s a bad idea.

It’s nice to find someone in the Senate who agrees with me on that.

Obstructing votes on Presidential nominees threatens the future of our judicial system and the nature of the Supreme Court. You see, I am not sure that many Americans have stopped to think: Well, what happens if this is exercised for Supreme Court Justices? Because I believe in the next several years we will have one or two or possibly more Supreme Court nominees to consider.

That’s Sen. Richard Burr (R-NC).  Wow, a staunch Republican up for re-election in 2016 who is bucking his party’s stand.  I’m impressed.

Oh, wait.  That was in 2005 when he was worried that the Democrats would be the ones holding the Court’s vacancies hostage.  Today he’s saying that it would be fine with him if the Senate didn’t replace Scalia ever.

If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court.

As President Obama asked, “What, only Republican Presidents get to nominate judges? Is that in the Constitution? I used to teach constitutional law. I’ve never seen that provision.”

HT to Steve Benen.

Thursday, October 27, 2016

Three Little Words Again

Back in June of 2004 I wrote:

So while presidents may come and go, their legacy lives on after them and the consequences of a Supreme Court vacancy can change the course of the nation. Anyone who may have doubts about John Kerry or quibble with his stand on the war in Iraq should keep three little words in mind when they go into the voting booth in November: The Supreme Court.

We’ve had more than 200 days to consider the fact that Antonin Scalia’s corpse was still warm when the Republicans announced that they would basically say fuck their constitutionally mandated responsibility; we’re not voting on another one of President Obama’s picks for the Supreme Court until after the election in November, if then.  Now there are those who are saying that they won’t vote on any of Hillary Clinton’s appointees ever.

As Ilya Shapiro at The Federalist smugly notes, the Republicans are fully within their rights to do so because neener neener nyah nyah:

Clinton’s admission that her nominees would “be in the grand tradition of standing up to the powerful”—like some black-robed community organizers—is far more damning than her nonsensical positions on Heller (Second Amendment) or Citizens United (declining to punish producers of a movie criticizing Hillary Clinton).

Should senators rubber-stamp judicial nominees of that ilk, who care not about the law but rather hew to particular policies, out of a sense of tradition or deference to the executive? I simply can’t blame politicians who follow their convictions. If you truly believe that a particular nominee would wreak havoc on America, why not do everything you can to stop him?

[…]

So when you get past the gotcha headlines, breathless reportage, and Inauguration Day, if Hillary Clinton is president it would be completely decent, honorable, and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee she names.

There is a simple way to solve this problem and get the Court back to its full complement of justices: elect more Democrats to the Senate than Republicans and get a vote on the nominees.  It would be nice to get more than 60 Democrats elected so that there wouldn’t have to be a fight over the filibuster rule, but we’ll take as many as we can get.  That’s why it’s important to beat Marco Rubio here in Florida, Richard Burr in North Carolina, Roy Blount in Missouri, Kelly Ayotte in New Hampshire, and Pat Toomey in Pennsylvania; those at the very least.

Because if we don’t and the Republicans have their way, we could be looking at ten years — assuming Hillary Clinton wins a second term — between the time Justice Scalia checked out and his replacement is seated, and that’s assuming that no one else leaves the Court, either of their own volition or via the hand of the supporting role in Bergman’s “The Seventh Seal.”

Your move, voters.

Wednesday, September 14, 2016

Short Takes

Wages shot up in 2015 with the biggest hike since 2007.

U.S. bombers send message to China, Russia, and North Korea.

Florida Zika outbreak hits 70 cases.

Supreme Court rejects early voting in Ohio.

NCAA pulls tournament games from North Carolina over bathroom bill.

Tropical Update: TS Julia heads north over northern Florida into Georgia.

Thursday, August 4, 2016

Short Takes

Supreme Court blocks transgender bathroom rule for now.

President Obama commutes sentences for over 200 federal inmates.

Jetliner explodes, burns on Dubai runaway; no casualties.

GOP allies plan “intervention” for Trump.

Tropical Update: TS Earl heads for Belize.

The Tigers beat the White Sox 2-1; streak hits 8.

Friday, July 1, 2016

Do The Math

3 + 1 = 4.  5 > 4.

On Monday, the Supreme Court handed down arguably the most important abortion-rights ruling in a generation, prompting the Republican presidential hopeful to say … literally nothing. To the consternation of some of his social-conservative allies, Trump acted as if the court’s decision didn’t exist, offering no response in speeches, interviews, or social media.

It took a few days, but this morning the presumptive GOP nominee broke his unexpected silence in an interview with conservative radio host Mike Gallagher.

“Now if we had Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that, OK? It would’ve been the opposite.”

Actually, no, it wouldn’t have. This week’s ruling was actually a 5-3 decision. Yes, Antonin Scalia’s passing meant the Supreme Court was down one justice, but it doesn’t take a mathematician to know 3 + 1 does not equal 5.  Remember, the decision was on Monday, and today’s Thursday. Trump and his team had three days to come up with the candidate’s response to a major court ruling, and this is what they came up with.

Actually, it’s not even math.  It’s arithmetic.

What this suggests is that Mr. Trump really doesn’t give a shit about appointing a conservative to the Supreme Court because of how he would rule on abortion.  (And trust me, Mr. Trump would nominate a man.  Preferably a white one.)  He would appoint someone to the Supreme Court who would do his bidding.  Don’t like a ruling on something?  Put in a guy who will rule the way you want him to or will at least listen when he picks up the phone and tells him to vote a certain way.  That’s how he operates.  The concept of separation of powers is, in his words, wrong, very wrong.  What is the point of being president if you can’t have your people doing what you want them to do?

Wednesday, June 29, 2016

It’s A Drugstore, Not A Church

A divided Supreme Court turns down a case of religious discrimination.

Ralph’s Thriftway is a grocery store and pharmacy in Washington run by a religious family. It is not a church, or a church-affiliated nonprofit; it is a for-profit business, created and designed to make money for the Stormans. But the Stormans family are devout Christians who believe that Plan B is “tantamount to abortion” and thus refuse to stock it. For years, when customers came to the pharmacy seeking emergency contraception, the Stormans turned them away.

But in 2007, the Washington State Board of Pharmacy issued new regulations declaring that a pharmacy may not “refuse to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds.” Quite reasonably, the board felt Washington pharmacies should not be permitted to deny patients safe, legal drugs—which was a growing problem within the state: In addition to Plan B, religious pharmacists had refused to give patients diabetic syringes, insulin, HIV-related medications, and Valium. That, the board decided, was unacceptable. Pharmacists have every right to believe whatever they wish, but when those beliefs are manifested in the form of brazen discrimination against customers, they cannot be sanctioned by the law. In 2015, the 9th U.S. Circuit Court of Appeals affirmed the constitutionality of Washington’s regulation.

Alito, along with Thomas and Roberts, sees Stormans differently. “There are strong reasons to doubt,” Alito writes, “whether the regulations … actually serve … any legitimate purpose.” What? Clear as day, the Washington regulations ensure that patients can receive timely access to necessary medications without facing discrimination. In what world are safeguards against discrimination in goods and services not even a legitimate interest? Alito’s world, it turns out. Neither he, Roberts, nor Thomas thinks refusal of service is a big deal when patients can hop back in their cars (presuming they have them) and drive to the nearest pharmacy that will deign to provide them with the proper medication. (Live in rural Washington? Hope you can find another pharmacy before the Plan B window closes!)

The simple lesson is that if you want to run a business that is free to discriminate against other people based on your religious beliefs, open a megachurch.  It’s a real money-maker and you won’t even have to pay taxes.

Religious Freedom Ends 05-10-16

Tuesday, June 28, 2016

Short Takes

Supreme Court strikes down restrictive abortion rights.

Supreme Court upholds ban on gun sales to those convicted of domestic violence.

U.K. politics in meltdown after Brexit.

Volkswagen agrees to settle U.S. emissions scandal for $14.7 billion.

Clinton and Warren hit the campaign trail in Ohio.

Friday, June 24, 2016

Monday, June 20, 2016

That Would Be Fun

Via the Washington Examiner:

Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.

Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.

His retirement would have a substantial impact on control of the court. The next president is expected to immediately replace the seat opened by the death of conservative Justice Antonin Scalia, providing a one-vote edge in the court that is currently divided 4-4.

Should Thomas leave, that slight majority would continue if Donald Trump becomes president. If it’s Hillary Clinton, then she would get the chance to flip two Republican seats, giving the liberals a 6-3 majority.

And then we’ll hear the Republicans say that we have to wait until the next election…

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