Sunday, October 18, 2020

Sunday Reading

Say Freedom — Michael Tomasky in the New York Times.

Donald Trump is now back on the road, holding rallies in battleground states. These events, with people behind the president wearing masks but most others not, look awfully irresponsible to most of us — some polls show that as many as 92 percent of Americans typically wear masks when they go out.

Trumpworld sees these things differently. Mike Pence articulated the view in the vice-presidential debate. “We’re about freedom and respecting the freedom of the American people,” Mr. Pence said. The topic at hand was the Sept. 26 super-spreader event in the Rose Garden to introduce Amy Coney Barrett as the president’s nominee for the Supreme Court and how the administration can expect Americans to follow safety guidelines that it has often ignored.

Kamala Harris countered that lying to the American people about the severity of the virus hardly counts as “respect.”

It was a pretty good riposte, but she fixed on the wrong word. She could have delivered a far more devastating response if she’d focused on the right word, one that the Democrats have not employed over the past several months.

The word I mean is “freedom.” One of the key authors of the Western concept of freedom is John Stuart Mill. In “On Liberty,” he wrote that liberty (or freedom) means “doing as we like, subject to such consequences as may follow, without impediment from our fellow creatures, as long as what we do does not harm them even though they should think our conduct foolish, perverse or wrong.”

Note the clause “as long as what we do does not harm them.” He tossed that in there almost as a given — indeed, it is a given. This is a standard definition of freedom, more colloquially expressed in the adage “Your freedom to do as you please with your fist ends where my jaw begins.”

Now, conservatives revere Mill. But today, in the age of the pandemic, Mill and other conservative heroes like John Locke would be aghast at the way the American right wing bandies about the word “freedom.”

Freedom emphatically does not include the freedom to get someone else sick. It does not include the freedom to refuse to wear a mask in the grocery store, sneeze on someone in the produce section and give him the virus. That’s not freedom for the person who is sneezed upon. For that person, the first person’s “freedom” means chains — potential illness and even perhaps a death sentence. No society can function on that definition of freedom.

Joe Biden does a pretty good job of talking about this. At a recent town hall in Miami, he said: “I view wearing this mask not so much protecting me, but as a patriotic responsibility. All the tough guys say, ‘Oh, I’m not wearing a mask, I’m not afraid.’ Well, be afraid for your husband, your wife, your son, your daughter, your neighbor, your co-worker. That’s who you’re protecting having this mask on, and it should be viewed as a patriotic duty, to protect those around you.”

That’s good, but it could be much better if he directly rebutted this insane definition of freedom that today’s right wing employs.

There are certain words in our political lexicon that “belong” to this side or the other. “Fairness” is a liberal word. You rarely hear conservatives talking about fairness. “Growth” is mostly a conservative word, sometimes the functional opposite of fairness in popular economic discourse, although liberals use it too, but often with a qualifier (“balanced” or “equitable” growth, for example).

“Freedom” belongs almost wholly to the right. They talk about it incessantly and insist on a link between economic freedom and political freedom, positing that the latter is impossible without the former. This was an animating principle of conservative economists in the 20th century like Ludwig von Mises, Friedrich Hayek and Milton Friedman.

It’s manifest silliness. To be sure, when they were writing, it was true of a place like the Soviet Union. But it is not true of Western democracies. If they were correct, the Scandinavian nations, statist on economic questions, would have jails filled with political prisoners. If they were correct, advanced democratic countries that elected left-leaning governments would experience a simultaneous crushing of political freedom. History shows little to no incidence of this.

And yet, the broad left in America has let all this go unchallenged for decades, to the point that today’s right wing — and it is important to call it that and not conservative, which it is not — can defend spreading disease, potentially killing other people, as freedom. It is madness.

One thing Democrats in general aren’t very good at is defending their positions on the level of philosophical principle. This has happened because they’ve been on the philosophical defensive since Ronald Reagan came along. Well, it’s high time they played some philosophical offense, especially on an issue, wearing masks, on which every poll shows broad majorities supporting their view.

Say this: Freedom means the freedom not to get infected by the idiot who refuses to mask up. Even John Stuart Mill would have agreed.

Extreme Restraint — Amy Davidson Sorkin in The New Yorker.

On the second day of Amy Coney Barrett’s Senate Judiciary Committee hearings for a seat on the Supreme Court, she and Cory Booker had an exchange that indicated that both the Court and the country are nearing a precarious point. Did she believe, Booker asked, that “every Pres­ident should make a commitment, un­equivocally and resolutely, to the peace­ful transfer of power?” Barrett raised her eyebrows, and chose her words carefully. “Well, Senator, that seems to me to be pulling me in a little bit into this question of whether the President has said that he would not peacefully leave office,” she said. “And so, to the extent that this is a political controversy right now, as a judge, I want to stay out of it and I don’t want to express a view.”

A President should absolutely make such a commitment; it’s in the job description. Yet, even when Booker reminded Barrett, who has described herself as an originalist and a textualist, of the importance of the peaceful transition of power to the Founders, the most she would allow was that America had been lucky that “disappointed voters” had always accepted election results. To say that a disappointed President might have an obligation to do so was apparently too far for her to go. What Barrett did offer was a study in the extent to which not giving an answer can be an expression of extremism. Her demurrals were more, even, than those of Justices Neil Gorsuch and Brett Kavanaugh, in their hearings, a measure of how thoroughly President Trump has moved the margins of our political culture.

It’s no surprise that the hearings would be characterized by some level of evasiveness: no nominee, particularly these days, wants to say something that will rally the opposition. Barrett, as a member of Notre Dame’s University Faculty for Life, had signed an ad that called Roe v. Wade, the 1973 Supreme Court decision affirming a woman’s reproductive rights, “infamous.” But, in the hearings, she asserted that she really couldn’t say what her position on Roe might be—the decision was controversial, and a case that threatened to overturn it might someday come before her. She attributed the principle that nominees should not comment on potential cases to Ruth Bader Ginsburg. But that principle doesn’t mean that the confirmation process should be a charade of non-answers; Ginsburg, in her own hearings, in 1993, acknowledged that she was pro-choice.

Barrett’s hearings weren’t just the latest reminder that the tiresome confirmation process is due for an overhaul; there were two novel, and alarming, aspects of the evasions in her testimony. The first was how many established principles she considers to be still open to debate. When Kamala Harris pressed her on the reality of climate change, and its consequences, Barrett protested that the Senator was “eliciting an opinion from me that is on a very contentious matter of public debate,” adding, “and I will not do that.” More startling, Barrett seemed to suggest that core elements of our electoral democracy are up for grabs. Dianne Feinstein asked her if the Constitution gives the President the power “to unilaterally delay a general election.” The answer is no, but Barrett replied that she didn’t want to give “off-the-cuff answers”—that would make her a “legal pundit.”

The scenarios that Barrett declined to address were not wild hypotheticals that the Democrats had dreamed up in an attempt to trick her. Donald Trump has repeatedly refused to commit to a peaceful transfer of power if he loses. He has also mooted delaying the election, or maybe excluding ballot tallies he doesn’t trust, and said that he wants this Court seat filled quickly, so that his appointee can be on the panel deciding any election disputes. What he’s proposing is a clear attack on American democracy and the rule of law. Barrett, though, spoke as though the fact that the President tweets about something means that it is within the realm of reasonable constitutional inter­pretation. What she conveyed throughout was not so much conscientiousness as a combination of deference to, alignment with, and, perhaps, fear of Trump.

And that was the second warning that emerged from the hearings: none of the Republican senators in the room seemed shocked at what the President deems possible, or interested in hearing what the Court’s role might be in countering any President who abuses his power. Instead, they echoed Trump’s intimations of fraudulent voting, me­dia lies, and left-wing plots. Ted Cruz claimed that many Democrats had made a decision “to abandon democracy.” Thom Tillis said it was understandable that gun sales had increased in recent months, because Democrats, “including people on this committee,” had made Americans fear for their safety. Josh Hawley appeared to think that the real problem was Hunter Biden. It can be hard to tell whether the Republicans are extremists or opportunists, or have just retreated into passivity.

In one of the most notable exchanges in the hearings, the Vermont Democrat Patrick Leahy tried, unsuccessfully, to get a straight answer from Barrett on whether a President could refuse to comply with a Supreme Court order, and whether such a refusal would be “a threat to our constitutional system of checks and balances.” A President defying the Supreme Court is the definition of a constitutional crisis, but Barrett would say only that the Court “can’t control” a renegade President. The Constitution, though, offers a clear course of action in such an event: impeachment. It seemed odd that Barrett, who spent much of her time commending committee members for their power as legislators—saying, repeatedly, “That’s your job”—didn’t emphasize that point.

Textualists often adopt a posture of “restraint” that masks their tendency to be true activists, which is what Barrett was when, in a dissent last year, she called Wisconsin laws limiting gun purchases by felons unconstitutional. Similarly, in suggesting that Justices, when faced with a President who rejects election results—or their authority—would just dither or shrug, she was making a radical statement, not a restrained one. Perhaps Barrett believes that such a crisis will never come to pass, and honestly doesn’t know what she would do if one did. In which case it might be prudent for her to begin thinking about how she would respond. The full Senate is on track to vote on her nomination as soon as October 26th. Eight days later, Donald Trump will be watching the election results come in, and he may not like what he sees.

Doonesbury — Can you hear the music?

Sunday, September 27, 2020

Sunday Reading

Why Her — Jeffrey Toobin in The New Yorker.

Amy Coney Barrett, whom President Trump has nominated to replace Ruth Bader Ginsburg on the Supreme Court, was born in 1972, so she can expect to spend several decades shaping both American law and American life. As it happens, a year before Barrett’s birth, Lewis F. Powell, Jr., then a prominent lawyer in Richmond, Virginia, and later a Supreme Court Justice himself, wrote a now famous memorandum to the United States Chamber of Commerce, arguing that businesses needed to take a more aggressive hand in shaping public policy. “The American economic system is under broad attack,” he wrote, from, specifically, the consumer, environmental, and labor movements. He added that “the campus is the single most dynamic source” of that attack. To counter it, Powell suggested that business interests should make a major financial commitment to shaping universities, so that the “bright young men” of tomorrow would hear messages of support for the free-enterprise system. A little less than a decade later, a pair of law professors named Robert Bork and Antonin Scalia signed on as the first faculty advisers to a fledgling organization for conservative law students called the Federalist Society for Law and Public Policy Studies. The efforts of the Federalist Society were lavishly funded by the business interests invoked by Powell, and it has trained a generation or two of future leaders. Not all of them have been “bright young men.” Some are women, including Barrett, and her confirmation would vindicate Powell’s plan and transform the Supreme Court.

Barrett made an appealing first impression in 2017, during her confirmation hearings to the federal bench. She and her husband are the parents of seven children. For many years, she was a popular professor at Notre Dame Law School, which she also attended and from which she graduated summa cum laude. She clerked on the Supreme Court for Justice Scalia. As a judge on the Seventh Circuit, she has been a reliable conservative voice. Even liberal peers in the academy find her personable. She will probably do well in providing the artful non-answers that are the currency of Supreme Court confirmation hearings before the Senate Judiciary Committee, just as she did in 2017.

But there should be no doubt about why Barrett has been chosen. Much of the commentary about her selection will focus on the issue of abortion, and her likely role in overturning Roe v. Wade. During the 2016 campaign, Trump repeatedly promised to appoint Justices who would vote to overrule that landmark, and with his three selections, including Neil Gorsuch and Brett Kavanaugh, he appears to have delivered. Barrett is not only a member of a conservative organization within the Catholic Church; her legal writings, and the views of some who know her, suggest that she would overturn Roe.

Still, it’s worth remembering the real priorities of Trump and Mitch McConnell, the Senate Majority Leader, in this nomination. They’re happy to accommodate the anti-abortion base of the Republican Party, but an animating passion of McConnell’s career has been the deregulation of political campaigns. The Supreme Court’s Citizens United decision brought the issue to wide public attention, but McConnell has been crusading about it for decades. He wants the money spigot kept open, so that he can protect his Senate majority and the causes for which it stands. This, too, is why the Federalist Society has been so lavishly funded over the years, and why it has expanded from a mere campus organization into a national behemoth for lawyers and students. Under Republican Presidents, Federalist Society events have come to operate as auditions for judicial appointments. The corporate interests funding the growth of the Federalist Society probably weren’t especially interested in abortion, but they were almost certainly committed to crippling the regulatory state.

Barrett is a product of this movement, and not just because she clerked for Scalia. Her writings and early rulings reflect it. Her financial-disclosure form shows that, in recent years, she has received about seven thousand dollars in honoraria from the Federalist Society and went on ten trips funded by it. But it’s not as if Barrett was bought; she was already sold. The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with Scalia. (She believes in relying on the specific meaning of the words in statutes, not on legislators’ intent. She interprets the Constitution according to her belief in what the words meant when the document was ratified, not what the words mean now.) But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.

It should go without saying that the nomination and the expected confirmation of Barrett in the final days before a Presidential election represent a paramount act of hypocrisy for McConnell and the other Republicans who denied even a hearing to Merrick Garland, President Barack Obama’s choice for the Supreme Court, in 2016. But the fact that these Republicans are willing to risk that charge shows how important the Supreme Court is to them. Far more than a senator, a Supreme Court Justice can deliver on the agenda. The war on abortion is just the start.

How To Debate A Bully — Peter Wehner in The Atlantic.

“I’m used to bullies.”

That’s a line Joe Biden has used several times during his run against Donald Trump, and he said it again recently in talking about the first presidential debate.

“I hope I don’t take the bait, because he’s going to say awful things about me, my family, et cetera,” Biden said at a virtual fundraiser. “I hope I don’t get baited into getting into a brawl with this guy, because that’s the only place he’s comfortable.” Biden expects to be able to keep his cool because, he said, “I’m used to dealing with bullies.”

The challenge for Biden isn’t simply that he’ll be facing a bully on the debate stage in Cleveland on Tuesday; it’s that he’ll be facing a man who is shameless and without conscience, a shatterer of norms and boundaries, a liar of epic proportions, a conspiracy-monger who inhabits an alternate reality. President Donald Trump operates outside any normal parameters.

If one is not used to dealing with someone like that, it can be utterly disorienting. Just ask the 2016 GOP primary field, or Hillary Clinton.

“We were on a small stage,” Clinton said about her second debate with Trump, “and no matter where I walked, he followed me closely, staring at me, making faces. It was incredibly uncomfortable. He was literally breathing down my neck. My skin crawled.”

She went on to describe what went through her mind: Should she keep her calm and carry on as if he weren’t repeatedly invading her space, or should she turn to him, look him in the eye, and say, “Back up, you creep. Get away from me. I know you love to intimidate women, but you can’t intimidate me, so back up”? Clinton chose the first option, but in retrospect, she wonders whether she should have chosen the second.

What might Vice President Biden do to prepare for his debates with President Trump?

For starters, I hope the former vice president’s campaign team has consulted psychologists who can help prepare Biden to deal with Trump’s disordered personality.

A second thing Biden can do is put Trump’s words within a larger context. For example, the president is a profligate liar; we know that in the course of the debates the president will tell an avalanche of falsehoods. It might therefore be useful for Biden, early in the debate, to warn viewers what will happen—Trump will lie, and lie again, and lie again. The former vice president should put a frame around those claims, so people understand what’s happening in real time.

In February, a friend pointed out to me that years ago Donald Trump lied about the size of Trump Towers, claiming he lived on the 66th to 68th floors. Here’s the thing: Trump Tower has only 58 floors, according to New York City documents. So Trump lied about even this, as he lies about virtually everything else. (In fact, Trump has lied about the height of several of his buildings, including Trump World Tower, which he claimed has 90 floors. In fact, it has 70.)

If Biden were to use this story at the beginning of a debate, perhaps even before Trump’s first lie, the former vice president, when hearing a lie, could simply say, “Donald, we’re at the 66th floor again.” This response would certainly be more effective than repeatedly calling Trump a liar and serving as a fact-checker for the entire debate. Biden has to find a way to quickly name what’s happening and move on.

When it’s his turn to respond to a comment by Trump, the former vice president should confidently name each strategy Trump attempted—“That was a deflection … That was a hoax … That was scapegoating … We’re at the 66th floor again.” By quickly and succinctly answering any question after naming the strategy, Biden will appear controlled, reasonable, and intelligent; Trump will feel dismissed and mocked. This will enrage the president, especially if his attempts to engage in argument are ignored, and Biden refuses to look at him.

Beyond that, as one clinical psychologist I consulted for this piece suggested, Biden should simply name what is true and what most Americans intuit about the president: He is a terribly broken man. Money and privilege spared him from the consequences that might have helped him develop a conscience. He does not show remorse or guilt, because he does not feel it. Decency and honesty yield no reward for Trump; indecency and lying yield no consequences. He doesn’t apologize to others, because he doesn’t feel the pain of others. He does not have the capacity for empathy and authentic relationships; all his relationships are conditional. He knows only pleasure and pity for himself. He perseverates on the wounds to his ego. Telling the truth, when it’s not Trump’s truth, is viewed as a betrayal by the president, because he always places his interests above truth.

Such a damaged individual may deserve some measure of pity as well as some measure of contempt; but in either case, such a person should not be the president of the United States.

Yet the reality is that such a man is the president, and with every passing day, his pathologies grow worse, his instability becomes more apparent, the danger he poses to American democracy more undeniable. Yesterday, he once again signaled that he has no interest in accepting the election results if he loses. In the summer of 2016, I said of Trump, “with him there’s no bottom.” We’re now seeing what “no bottom” looks like.

The investigative reporter Bob Woodward, whose book Rage is just the most recent, scathing indictment of the Trump presidency, said that historians, looking back at this period, are going to ask, “‘What the F happened to America?’”

The answer is that Donald J. Trump happened to America.

Joseph R. Biden is the only person who can keep Trump to a single term and stop this ongoing American carnage. And that, in turn, could depend in large part on how the former vice president does during the first debate.

I’m a conservative who served in the Ronald Reagan, George H. W. Bush, and George W. Bush administrations. I’m also wishing Joe Biden very well on Tuesday evening. It’s less for his sake than for the sake of the country I love.

Doonesbury — Losing Count.

Sunday, September 20, 2020

Sunday Reading

Ruth Bader Ginsburg — Jill Lepore in The New Yorker.

Ruth Bader Ginsburg, scholar, lawyer, judge, and Justice, died on Friday at the age of eighty-seven. Born the year Eleanor Roosevelt became First Lady, Ginsburg bore witness to, argued for, and helped to constitutionalize the most hard-fought and least-appreciated revolution in modern American history: the emancipation of women. Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.

The change Ginsburg ushered into American politics began a half century ago, and reckoning with its magnitude requires measuring the distance between now and then. At the time, only three in a hundred legal professionals and fewer than two hundred of the nation’s ten thousand judges were women. In 1971, as Richard Nixon prepared to make two appointments to the Supreme Court, he faced a dilemma. Yet another Southerner he’d tapped had been nixed for an opposition to desegregation, so Nixon decided to look for someone who was, preferably, not a racist. He considered naming a woman. “I’m not for women, frankly, in any job,” he told his aides, in a little fit of hysterics. “Thank God we don’t have any in the Cabinet.” He didn’t think women should be educated, or “ever be allowed to vote, even.” But, given the momentum of the women’s-rights movement, he conceded the political necessity of naming a woman to the bench: it might gain him a small but crucial number of votes in the upcoming election. “It’s like the Negro vote,” he said. “It’s a hell of a thing.” Then Chief Justice Warren Burger, in a similar huff, told Nixon that, if he were to nominate a woman, he’d resign. In the end, Nixon named Lewis Powell.

While all these men were dithering, Ruth Bader Ginsburg was working for the A.C.L.U., writing the brief for a case set to go before the Court, Reed v. Reed. Decided on November 22, 1971, weeks after Powell’s confirmation hearings, Reed v. Reed upended a century of American jurisprudence and the entirety of political thought going back to the beginning of the Republic. Before 1971, as Ginsburg would later write, “Neither legislators nor judges regarded gender lines as ‘back of the bus’ regulations. Rather, these rules were said to place women on a pedestal.” Thomas Jefferson had taken the trouble to explain that women had no part in the Framers’ understanding of the government devised by the Constitution. “Were our state a pure democracy,” he wrote, “there would yet be excluded from their deliberations . . . women; who, to prevent deprivation of morals, and ambiguity of issues, could not mix promiscuously in the public gatherings of men.” Women were to be excluded for their own protection. The early women’s-rights movement, in the middle decades of the nineteenth century, had not defeated that argument, and the Fourteenth Amendment, ratified in 1868, did not explicitly—or implicitly, according to the Court—bar discrimination on the basis of sex. In 1873, ruling on a case in which Myra Bradwell had sued the state of Illinois for denying her the right to practice law, one Supreme Court Justice explained his logic this way: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” That, as Ginsburg liked to say, was a cage, pretending to be a pedestal.

Reed v. Reed, in 1971, involved an Idaho statute that gave preference to men—“males must be preferred to females”—in executing estates. The Court, following Ginsburg’s brief, ruled for the first time that discrimination on the basis of sex violated the equal-protection clause of the Fourteenth Amendment. Writing for the majority, Burger used language that had been introduced by Ginsburg: “To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the equal-protection clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.” Just a few years later, Ginsburg was arguing her own cases before the Court, and the Chief Justice was stumbling over how to address her. “Mrs. Bader? Mrs. Ginsburg?”

Ruth Bader was born in Brooklyn in 1933 and went to Cornell, where she met Martin Ginsburg. They married and enrolled at Harvard Law School, which had only just begun admitting women. Ginsburg raised their baby, and also cared for Marty, who was diagnosed with cancer, and then she followed him to New York, finishing her law degree at Columbia. She faced discrimination on the basis of sex at every stage of her career. Tied for first in her class at Columbia, she was unable to get a job practicing law at a New York firm. But, far from being defeated by discrimination, she decided to study it. She began teaching at Rutgers in 1963; in 1969, the year her second child entered nursery school, she was promoted to full professor, and began volunteering for the A.C.L.U., where she later headed the Women’s Rights Project.

In 1972, just two months after the Court handed down its ruling in Reed v. Reed, Ginsburg became the first woman to hold a full professorship at Columbia. “The only confining thing for me is time,” she told the New York Times. “I’m not going to curtail my activities in any way to please them.” While teaching at Columbia, Ginsburg argued six cases before the Court, and won four. As Jeffrey Toobin reported in a Profile of Ginsburg, she took a crucial tip from the woman who typed her briefs. “I was doing all these sex-discrimination cases, and my secretary said, ‘I look at these pages and all I see is sex, sex, sex. The judges are men, and when they read that they’re not going to be thinking about what you want them to think about,’ ” Ginsburg said. She decided to rename this type of complaint “gender discrimination.”

Ginsburg sometimes said that tackling gender discrimination, case by case, was like “knitting a sweater,” a phrase perhaps meant to disarm her opponents. The actual sweater should have been a constitutional amendment. Ginsburg advocated, vehemently, for the ratification of the Equal Rights Amendment, which had been passed by Congress in 1972; she argued that it looked “toward a legal system in which each person will be judged on individual merit and not on the basis of an unalterable trait of birth.” And she regretted the Court’s logic in Roe v. Wade, in 1973, a case decided not on an equal-rights argument but on a privacy one. (As I pointed out in a 2018 essay, when asked by the A.C.L.U. to take on the defense of Roe, Ginsburg declined.) In 1980, when Jimmy Carter nominated Ginsburg to the D.C. Circuit Court, an aide in Strom Thurmond’s office, at her confirmation hearings, called her a “one-issue woman.” Thurmond was the only member of the committee to vote against her.

Ginsburg’s position on Roe earned her the ire of many feminists who failed to support her nomination to the Supreme Court, in 1993. “My approach, I believe, is neither liberal nor conservative,” she told the Senate Committee on the Judiciary, chaired by Joe Biden. That her nomination had been uncontroversial is entirely a myth, as is the idea that her opinions, after her confirmation, were caustic and biting, the “Ginsburns” of her character on “Saturday Night Live.” Ginsburg believed in the body of the Court, in collegiality of argument, and in moderation of expression. She was famously, even maddeningly, careful. She took so much time thinking about what people said to her, and choosing her own words, Toobin reported, that “her clerks came up with what they call the two-Mississippi rule: after speaking, wait two beats before you say anything else.”

Her most significant opinions were those she wrote for the majority, including in U.S. v. Virginia, a 1996 case in which the Court ruled that the Virginia Military Institute’s refusal to enroll female students violated the equal-protection clause. Ginsburg’s opinion served as a history lesson, partly for the public and partly for her fellow-Justices. “Through a century plus three decades and more, women did not count among voters composing ‘We the People,’ ” she wrote. “Not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination.” The turning point, she observed, had come in Reed v. Reed: “In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws.”

Of course, the real turning point had come when Ginsburg joined the bench. For most of Ginsburg’s career, the Court had been fairly moderate. It was not until the nineteen-eighties, when Reagan appointed Antonin Scalia, that modern conservatives began to join the Court. During Ginsburg’s tenure, George W. Bush appointed Justices Roberts and Alito, and Trump appointed Gorsuch and Kavanaugh. As the Court shifted, Ginsburg was cast as its Great Dissenter, though the role went largely against her disposition. Ginsburg cherished honest disagreement, firmly expressed, but she disliked petty, scathing opinions. In “Speaking in a Judicial Voice,” a lecture she delivered in 1992, the year before she joined the Court, she condemned “the immoderate tone of statements diverging from the positions of the court’s majority.” “The most effective dissent,” she wrote, “spells out differences without jeopardizing collegiality or public respect for and confidence in the judiciary.”

She stood by that, even as she found herself writing more and more separate opinions, a turn that began with Bush v. Gore (2000), in which she objected to the majority’s decision to halt the recount in Florida. “The Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested,” she wrote. “Such an untested prophecy should not decide the Presidency of the United States.” At the conclusion of that opinion, she allowed a rare breach of decorum, writing not “Respectfully, I dissent,” but, with a quiet fury, “I dissent.”

Ginsburg’s dissents carried a particular power, not only rhetorically but politically. On the Roberts Court, she became the leader of the liberal wing, and, in 2007, in a case involving Lilly Ledbetter, a supervisor for Goodyear Tires, she wrote a dissent objecting to the majority’s denial of an argument about sex discrimination in employment. That opinion was so compelling that it led to the passage of the Lilly Ledbetter Fair Pay Act, signed by Barack Obama in 2009. And perhaps Ginsburg’s most resonant dissent, in light of this year’s election, is the one she wrote in Shelby County v. Holder, in 2013, in which the majority all but struck down the 1965 Voting Rights Act, on the basis of the bizarre argument that it (and one of its features, known as “preclearance”) had effectively solved voter suppression for posterity. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.” When she read the dissent aloud in Court, as Jane Sherron De Hart observed in a recent biography, she added a conclusion that was not in the written version. “The arc of the moral universe is long, but it bends toward justice,” she said, quoting Martin Luther King, Jr. But it only bends that way, she went on, “if there is a steadfast commitment to see the task through to completion.” Much that Ginsburg predicted about the stripping away of voting rights has come to pass.

During Ginsburg’s final two decades on the court, she fought colon cancer (first diagnosed in 1999), pancreatic cancer (2009), underwent heart surgery (2014), suffered injuries from falls (2012 and 2018), underwent surgery for malignancies on her left lung (2018), and had radiation when the pancreatic cancer returned (2019). She seldom missed a day in court. She also regrettably, and presumably thinking Hillary Clinton would defeat Trump in 2016, resisted calls to retire during Obama’s second term, when he could have appointed a liberal Justice as her successor.

The pleasure Ginsburg took in her own celebrity, as she became a feminist icon, is understandable, if also troubling. Historically, the Court is meant to be insulated from public opinion, which also requires of the Justices that they lead largely private lives. Ginsburg was by no means the first to flout this convention, but she flouted it considerably, appearing on late-night television shows and becoming the subject of documentaries, feature films, and books for children. She spoke, in the last years of her life, to crowds numbering in the tens of thousands. And she came to regret the changes to the Court itself, the way hyperpolarization had transformed the nomination and confirmation process. “I wish I could wave a magic wand and have it go back to the way it was,” she said in 2018, after the Kavanaugh hearings.

There is no magic wand, and there is no going back. The Supreme Court, like much of the rest of the federal government, is at risk of becoming an instrument of the executive instead of a check against it. Preserving the Court’s independence will require courage and conviction of Ginsburgian force. And there are changes, too, that most of us would never want undone. A century after the ratification of the Nineteenth Amendment, Ruth Bader Ginsburg’s pioneering career as a scholar, advocate, and judge stands as a monument to the power of dissent. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. It took centuries, and tens of millions of women, to dismantle that nonsense. And no single one of them was more important than Ginsburg, warm-hearted, razor-sharp, and dauntless.

The Real Deal — Charlie Pierce says Attorney General William Barr is the real authoritarian.

No matter how you feel about El Caudillo Del Mar-a-Lago‘s gifts as an authoritarian, there’s no mistaking the fact that, for his entire public career, William Barr has been the genuine article. He really does believe that the Constitution bestows upon the president—even this burlesque of a president* that we have now—absolute power, or something close enough to it that still would allow the country to call itself a democratic republic without the rest of the world doing a spit-take you could hear on Mars. As a special prosecutor was closing in on President George H.W. Bush for the latter’s involvement in the Iran-Contra scandal, Barr was the one who told Bush to pardon everyone except Shoeless Joe Jackson on his way out the door because a cover-up was well within the powers of the presidency as described in Article II. This was so egregious that even the late William Safire, who wrote speeches for Nixon, for pity’s sake, called Barr the “Cover-Up General.”

Now, though, because he’s working for a president* who doesn’t know anything about anything, and who is proud of that fact, Barr has the perfect vessel through whom to exercise all those theories of his that wear armbands when they go to work. There simply is nothing that this president* can do that Barr can’t cloak in highfalutin’ lawyer-speak, which the president* will repeat, because he doesn’t know anything about anything. On Wednesday, though, Barr went out on his own and let his freak flag fly proudly in a Constitution Day speech at Hillsdale College. Quite simply, he went to war against the prosecutors in the Department of Justice that he purportedly leads.

The Justice Department is not a praetorian guard that watches over society impervious to the ebbs and flows of politics. It is an agency within the Executive Branch of a democratic republic — a form of government where the power of the state is ultimately reposed in the people acting through their elected president and elected representatives. The men and women who have ultimate authority in the Justice Department are thus the ones on whom our elected officials have conferred that responsibility — by presidential appointment and Senate confirmation. That blessing by the two political branches of government gives these officials democratic legitimacy that career officials simply do not possess.

The same process that produces these officials also holds them accountable. The elected President can fire senior DOJ officials at will and the elected Congress can summon them to explain their decisions to the people’s representatives and to the public. And because these officials have the imprimatur of both the President and Congress, they also have the stature to resist these political pressures when necessary. They can take the heat for what the Justice Department does or doesn’t do.

Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions. Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials. Indeed, the public’s only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.

This is nothing less than the Attorney General of the United States cutting the legs out from under every federal prosecutor across the country. Moreover, in talking darkly about the “permanent bureaucracy,” Barr is plowing headlong into Caputoland. Michael Caputo resigned his post at the Department of Health and Human Services on Wednesday because he’d gone bananas in a Facebook Live chat, yammering about “deep state” actors at the Centers for Disease Control. Here now comes William Barr saying pretty much the same thing about the career prosecutors under his nominal command, and arguing that only the Senate-confirmed officials at the top of the DOJ food chain have “democratic legitimacy”—in other words, only people like William Barr have the political credibility to resist political pressure.

By clear implication, Barr is defining the job of attorney general as a purely political post, an extension of the executive power of the president, a theory that has not worked out very well in practice over the past two or three Republican presidencies, and a theory that I will bet a buffalo nickel Barr would never apply to, say, Loretta Lynch. But it is a theory under which Barr can justify being this administration*’s primary manure spreader. For example, an AG has no business doing an interview in which he opines about what a big socialist Joe Biden is, which Barr did only this week. However, if Barr perceives his job as a political arm of the executive, then that is something he would feel free to do.

As far as putting these theories into practice, we only have to look in the New York Times to discover that Barr planned to bring the full weight of the Italian government of 1932 down on the United States of 2020.

The attorney general has also asked prosecutors in the Justice Department’s civil rights division to explore whether they could bring criminal charges against Mayor Jenny Durkan of Seattle for allowing some residents to establish a police-free protest zone near the city’s downtown for weeks this summer, according to two people briefed on those discussions. Late Wednesday, a department spokesman said that Mr. Barr did not direct the civil rights division to explore this idea.

The directives are in keeping with Mr. Barr’s approach to prosecute crimes as aggressively as possible in cities where protests have given way to violence. But in suggesting possible prosecution of Ms. Durkan, a Democrat, Mr. Barr also took aim at an elected official whom President Trump has repeatedly attacked…

“The power to execute and enforce the law is an executive function altogether,” Mr. Barr said in remarks at an event in suburban Washington celebrating the Constitution. “That means discretion is invested in the executive to determine when to exercise the prosecutorial power.”

Of course, Barr can legitimately sic the DOJ on the mayor of Seattle because Barr was confirmed by the Senate and, if the president* thinks he’s gone too far, he can be removed through the political process. I see nothing that can possibly go wrong with this.

Or, we only have to pick up the Washington Post‘s story about the government’s apparent desire to make a slaughter pen out of Lafayette Square so that the president* could walk across the street and hold up a Bible.

D.C. National Guard Maj. Adam D. DeMarco told lawmakers that defense officials were searching for crowd control technology deemed too unpredictable to use in war zones and had authorized the transfer of about 7,000 rounds of ammunition to the D.C. Armory as protests against police use of force and racial injustice roiled Washington. …

Just before noon on June 1, the Defense Department’s top military police officer in the Washington region sent an email to officers in the D.C. National Guard. It asked whether the unit had a Long Range Acoustic Device, also known as an LRAD, or a microwave-like weapon called the Active Denial System, which was designed by the military to make people feel like their skin is burning when in range of its invisible rays. The technology, also called a “heat ray,” was developed to disperse large crowds in the early 2000s but was shelved amid concerns about its effectiveness, safety and the ethics of using it on human beings.

Heat rays? Seven thousand rounds of live ammunition? Under an AG who hates the whole notion of federal prosecutors, largely because they inconvenienced the criminal-adjacent presidencies he has served? I’m sure there would be solid constitutional grounds of any ensuing bloodletting. William Barr means it. The sooner he’s pried loose from his job, the better.

Doonesbury — The true test.

Friday, July 10, 2020

Happy Friday

According to Charles P. Pierce, yesterday was a pretty good day.

“And, on fourth-and-15, here comes veteran John Roberts, back to kick. Takes the snap, and it’s a long one. Waaayyy down the field. It takes a huge Camp Runamuck bounce and it goes out of bounds, pinning the Republic back on its own three-yard line. Roberts really outkicked his coverage…”

I’m sorry about that. God, I’ve got to get another sportswriting gig.

The Supreme Court on Thursday did what most people expected it to do on the matter of El Caudillo del Mar-a-Lago’s financial records. It denied Congress’s attempt to subpoena the material, but it did rule that New York County DA Cyrus Vance, Jr. one day could go gamboling through the vast vista of scams and grifts and frauds likely contained therein. Indeed, in ruling in Vance’s favor, Chief Justice Roberts wrote in the Court’s unanimous opinion on that point:

No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.

This is a major statement on presidential power and, in that regard, it can rank with US v. Nixon and Jones v. Clinton. And hooray for that. (As far as the congressional subpoenas go, there is at least an arguable separation-of-powers claim to be made. Clearly, Roberts swung the entire Court onto the institutionalist side of his conscience. I wouldn’t make it, but it’s at least worth piling up the billable hours on.)

But the two rulings also ensure that he country will not get to see this information any time before the November election. The case of the congressional subpoenas will go back into the maelstrom of the lower courts. Vance was clearly luckier than Congress was but, after Vance’s own fandango in the lower courts, all of the documents under subpoena will go to a grand jury, the proceedings of which will be secret and, therefore, the information in the documents will remain inaccessible, at least for the foreseeable future. Nonetheless, the president* responded on the electric Twitter machine by going utterly bananas.

PRESIDENTIAL HARASSMENT!

“We know what took place. We have already seen criminality. What is happening? Biggest political scandal of our time.” @MariaBartiromo You are 100% correct, Maria, it is a disgrace that nothing happens. Obama and Biden spied on my campaign, AND GOT CAUGHT…BUT NOTHING!

PROSECUTORIAL MISCONDUCT!

We have a totally corrupt previous Administration, including a President and Vice President who spied on my campaign, AND GOT CAIGHT…and nothing happens to them. This crime was taking place even before my election, everyone knows it, and yet all are frozen stiff with fear….

No Republican Senate Judiciary response, NO “JUSTICE”, NO FBI, NO NOTHING. Major horror show REPORTS on Comey & McCabe, guilty as hell, nothing happens. Catch Obama & Biden cold, nothing. A 3 year, $45,000,000 Mueller HOAX, failed – investigated everything…

.for another President. This is about PROSECUTORIAL MISCONDUCT. We catch the other side SPYING on my campaign, the biggest political crime and scandal in U.S. history, and NOTHING HAPPENS. But despite this, I have done more than any President in history in first 3 1/2 years!

This certainly sounds like the reasoned rebuttal of an innocent man.

(For the historical record, here’s how the Nixon White House, through attorney James St. Clair, responded to the 8-0 decision demanding that he hand over the subpoenaed White House tapes: “[The president] has always been a firm believer in the rule of law.”)

All in all, it was a pretty good day for the Republic, although it’s still got a long way to go before it hits pay dirt. And hope does spring eternal. After all, in the other decision by the Court on Thursday, almost half of the state of Oklahoma was determined to belong to Native Americans. Wrote Justice Neil Gorsuch (!):

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

The “government” to which Gorsuch is referring was sitting in 1832. Andrew Jackson was president. John C. Calhoun was vice president. Henry Clay and Daniel Webster were in the Senate. John Quincy Adams and James K. Polk were in the House. John Fcking Marshall was still Chief Justice of the Supreme Court. Of course, shortly thereafter, the Jackson Administration began the genocidal campaign that ended with the Trail of Tears that brought the tribes. including the Creek people, from their ancestral lands in the southeastern United States to Oklahoma where, on Thursday, the Supreme Court ordered the United States to live up to the deal it cut with those folks lucky enough to have survived.

Mills of the gods. Arc of the moral universe, and all that. If the Creek people can wait this long to settle a land case, we can be patient about a bunch of paperwork from Deutsche Bank.

In other news, I am happy to announce that “All Together Again,” the long-awaited sequel to my award-winning play “All Together Now,” has now been published by Smith Scripts. Check it out, or better yet, order a copy.

Happy Friday!

Thursday, July 9, 2020

POTUS Tantrum

Via TPM:

Trump blew up on Twitter after the Supreme Court ruled that his tax returns must be handed over to Manhattan District Attorney Cyrus Vance on Thursday morning.

Trump complained that he will “have to keep fighting in a politically corrupt New York” thanks to the ruling.

“Not fair to this Presidency or Administration!” the President tweeted.

“Courts in the past have given ‘broad deference.’ BUT NOT ME!” he wrote in a second tweet approximately a minute later.

The tantrum continued in the form of a barely coherent Twitter thread in which Trump raved on about his bogus conspiracy theory that President Barack Obama’s administration was supposedly “spying” on his 2016 campaign.

“We have a totally corrupt previous Administration, including a President and Vice President who spied on my campaign, AND GOT CAUGHT…and nothing happens to them,” Trump tweeted. “This crime was taking place even before my election, everyone knows it, and yet all are frozen stiff with fear….No Republican Senate Judiciary response, NO ‘JUSTICE,’ NO FBI, NO NOTHING.”

The President also ranted that the Supreme Court had made a ruling that they “would never have given for another President.”

Trump’s own appointed justices, Neil Gorsuch and Brett Kavanaugh, were part of the seven-person majority in the decision.

The President was still furiously sounding off on Twitter by noontime, tweeting “POLITICAL WITCH HUNT!”

The UNFAIR! rant doesn’t work unless you’re five and told to clean up your room THIS MINUTE.  And even then.

For the adults in the room, the opinion written by Chief Justice John Roberts cited precedent as far back as Aaron Burr’s trial for treason in 1807 for successfully subpoenaing a president for his records. (And you don’t have to watch “Hamilton” to know that.) Two other presidents tried unsuccessfully to quash subpoenas — Nixon and Clinton — and they both lost.

It’s unlikely that the records will become public before he leaves office in January, but then he’ll be just an ordinary citizen again and the SDNY can indict him.

Thursday, June 18, 2020

Supreme Court Rules Against Trump Attempt To End DACA

Via the Washington Post:

The Supreme Court on Thursday rejected the Trump administration’s attempt to dismantle the program protecting undocumented immigrants brought to the country as children, a reprieve for nearly 650,000 recipients known as “dreamers.”

The 5 to 4 decision was written by Chief Justice John G. Roberts Jr. and joined by the court’s four liberals. It was the second, stunning defeat this week for the Trump administration, as the Supreme Court begins to unveil its decision in marquee cases.

It will likely elevate the issue of immigration in the presidential campaign, although public opinion polls have shown sympathy for those who were brought here as children and have lived their lives in this country. Congress repeatedly has failed to pass comprehensive immigration reform.

President Trump responded to the decision by tweeting his displeasure and turning it into a call for his reelection, with a specific focus on gun-rights supporters: “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

It is important to note that the court did not rule on the merits of the DACA program. It said that the way that Trump, then-AG Sessions, and the Department of Homeland Security tried to end it was “arbitrary and capricious.” In other words, they didn’t follow the correct procedure to terminate it. That leaves open the possibility that Trump can still try. Then again, given this regime’s inability to follow the rules about anything, chances are that by the time they get around to doing it right (as if there is ever a right way to do a wrong thing), Trump will, one hopes, be out of office. As Lyndon Johnson once said about another incompetent, “he couldn’t pour piss out of a boot if the instructions were printed on the heel.”

Tuesday, December 31, 2019

Looking Back/Looking Forward

Time for my annual recap and predictions for the coming year.  Let’s see how I did a year ago.

Barring natural causes or intervention from an outside force, Trump will still be in office on December 31, 2019. There is no way he will leave voluntarily and even with the House of Representatives in Democratic control and articles of impeachment being drafted they will not get to the Senate floor because the Republicans are either too afraid to rile up the base or they’re too enamored of their own grip on power to care about the government being headed by a poor imitation of a tin-pot banana republic authoritarian douche-canoe.

That was an easy A.  As of today, the articles of impeachment are still with the House as Speaker Pelosi holds on to them.

The Mueller Report will be released to Congress and even though it’s supposed to be classified it will be leaked with great fanfare and pundit predictions of the end of the Trump administration with calls for frog-marching him and his minions out of the West Wing. Despite that, see above.

I get a C on that.  There were no leaks and the Mueller report was too nuanced for the punditry to read it and spit out sound bites.  The unintended consequence, though, was that the day after Mr. Mueller testified before Congress, Trump picked up the phone and placed an overseas call to Ukraine.

There will be no wall. There never will be. Immigration will still be a triggering issue as even more refugees die in U.S. custody.

That was a gimme.

There will be no meaningful changes to gun laws even if the NRA goes broke. There will be more mass shootings, thoughts and prayers will be offered, and we’ll be told yet again that now is not the time to talk about it.

Another gimme, more’s the pity.

Obamacare will survive its latest challenge because the ruling by the judge in Texas declaring the entire law unconstitutional will be tossed and turned into a case study in law schools everywhere on the topic of exasperatingly stupid reasoning.

Roe vs. Wade will still stand.

With the Democrats in control of the House, the government will be in permanent gridlock even after they work out some sort of deal to end the current shutdown over the mythological wall.  House Speaker Nancy Pelosi will become the Willie Horton for the GOP base and blamed for everything from budget deficits to the toast falling butter-side down.

An A- on these three.  As of today, Obamacare is still in place but the Supreme Court is sniffing around the whack-ass lower court ruling, so see below, and the same goes for Roe v. Wade.  The House has passed over 250 bills and sent them on to the Senate, but Mitch McConnell has not touched them, and won’t.

We will have a pretty good idea who the Democratic front-runner will be in 2020. I think Sen. Elizabeth Warren’s chances are still good (she announced her exploratory committee as I was writing this), as are Sen. Kamala Harris’s, and don’t count out Sen. Sherrod Brown of Ohio, but who knew that Beto O’Rourke, a charismatic loser in the Texas senate race, would raise a lot of hopes? That said, fifteen years ago when I started this blog, Howard Dean looked like the guy who was going to beat George W. Bush.

A big old red F on that one.

The economy will continue with its wild gyrations, pretty much following the gyrations of the mood of Trump and his thumb-driven Twitter-fed economic exhortations. The tax cuts and the tariffs will land on the backs of the people who provide the income to the government and the deficit will soon be out there beyond the Tesla in outer space. But unlike that Martian-bound convertible, the economy will come crashing back to Earth (probably about the time I retire in August) and Trump will blame everyone else.

That’s a C.  It hasn’t happened yet, but with the deficit doubling since Trump took office, something will have to give.  The question was — and remains — when will it?

There will be a natural event that will convince even skeptics that climate change and sea level rise is real and happening. Unfortunately, nothing will be done about it even if lots of lives are lost because [spoiler alert] nothing ever is done.

That’s an A.  It’s already happening.

I’m going out on a limb here with foreign affairs predictions, but I have a feeling that Brexit will end up in the dustbin of history.

Another big old red F, right up there with the Dolphins and the Lions ending up in the Superbowl in 2020.

Personally, this will be a transition year.  My retirement from Miami-Dade County Public Schools occurs officially on August 31, 2019, and I’m already actively looking for something both meaningful and income-producing to do after that.  (E-mail me for a copy of my resume; nothing ventured, nothing sprained.)  My play “Can’t Live Without You” opens at the Willow Theatre in Boca Raton, Florida, for a two-week run on March 30, and I’m planning on returning to the William Inge Theatre Festival for the 28th time, either with a play or most assuredly with a scholarly paper.  I have my bid in for a variety of other theatre events and productions; I think I’m getting the hang of this playwriting thing.

Things went pretty much as planned this year.  I retired on August 31 and started my new part-time jobs the next week.  The run of “Can’t Live Without You” was great, and I had a very busy year in getting plays done and conferences attended and new friends made from Miami to Alaska.

On to the predictions:

  • Trump will survive impeachment.  The fix is in.  Revelations about his corruption will keep on coming, and yet the Republicans will cower with him.  It will be his big campaign rallying point.
  • I have no idea who the Democratic Party will nominate for president, and neither do you, but whoever it is will beat Trump in November despite the best efforts of the Kremlin.  I hope it is by such a margin that even Fox News will call it a blowout.  Trump will scream and carry on about it being rigged, but by this time in 2020, he’ll be doing everything he can to trash the place on the way out the door with pardons and lame-duck appointments of Nazi sympathizers and pedophiles.  (If I’m wrong on this and Trump is reelected, I’m moving to Montserrat.  It’s safer to live on an island with an active volcano.)
  • Obamacare will survive in the Supreme Court but by a 5-4 ruling.
  • There will be more restrictions placed on reproductive rights, but Roe v. Wade will not be struck down.
  • The Democrats will take back the Senate by one seat and all that bottled-up legislation will finally get through in time for the House, still under Nancy Pelosi, to pass them all again and get them signed by the new president.
  • The economic bubble will burst, the trade deals with China and Europe will screw over the American consumer, and it’s going to look like one of those 19,000 piece domino videos.  Trump and Fox will blame the Democrats for the monster deficit and carry on about how we need to cut more taxes and destroy Social Security and Medicare to save them.
  • Even with the Democrats taking over in 2020, they won’t be in office until January 2021, so I’ll save predictions for what they’ll come up with in terms of health care, gun safety, and climate change until this time next year, assuming my house in the suburbs of Miami at 10 feet above sea level is still on dry land.
  • As for me, my playwriting and productions thereof will continue.  I’m planning on my 29th trip to the Inge Festival in May and hope to be invited back to Alaska in June.  As I’m writing this, the novel that I started twenty-five years ago tomorrow is on the glide path to land by the time I go back to work next week.  I can predict that it will never be published because I never meant it to be.
  • As for hopes for the new year, I hope for continued good health and fortune for my friends and family.  I can’t ask for more than that.

Okay, your turn.

Friday, June 28, 2019

Not Surprising At All

The Supreme Court ended the term with two rulings that ratified the belief that despite all their protestations that they are supremely non-political and only follow the written word of the Constitution, we all know it’s bullshit, and they know it, too.

The gerrymandering ruling was not unexpected at all, with a 5-4 right wing majority saying that the federal courts have no say whatsoever in state-wide political manipulation.  That’s ironic given that the Court with the same majority had no trouble whatsoever in diving into a state-wide political manipulation and gave the presidency to George W. Bush.  Funny too that if the case had been about Democrats re-working the congressional districts to their favor, odds are that they would have found a clause in the Constitution to put and end to it.

As for the census citizenship question, the 5-4 ruling basically told Trump to come up with a better bullshit reason to add it to the census and they’ll consider it.  Chances are that they will.

Both of these cases make it imperative for voters to remember that when they choose someone to run for president, they’re not just choosing someone for four or eight years; they’re looking down the road a lifetime, and those three little words — The Supreme Court — should be etched on the ballot every time.

Sunday, June 2, 2019

Sunday Reading

On Thin Ice — Charles P. Pierce on how climate change is killing people in Alaska.

For those Chinese climate hoaxsters, it’s all fun and games until people start dying, which is happening in a lot of places around the world, and which will keep happening as the hoax gets deeper and more serious and affects more and more of the world. For example, as Smithsonian informs us, Alaska. In March, when it is still supposed to be the dead of winter there, Alaska experienced temperatures that were 11 degrees Celsius above normal. There were consequences.

On April 15, three people, including an 11-year-old girl, died after their snowmobiles plunged through thin ice on the Noatak River in far northwestern Alaska. Earlier in the winter, 700 kilometers south, on the lower Kuskokwim River, at least five people perished in separate incidents when their snowmobiles or four-wheelers broke through thin ice. There were close calls too, including the rescue of three miners who spent hours hopping between disintegrating ice floes in the Bering Sea near Nome. Farther south, people skating on the popular Portage Lake near Anchorage also fell through thin ice. Varying factors contributed to these and other mishaps, but abnormally thin ice was a common denominator.

In Alaska, ice is infrastructure. For example, the Kuskokwim River, which runs over 1,100 kilometers across southwestern Alaska, freezes so solid that it becomes a marked ice road connecting dozens of communities spread over 300 kilometers. In sparsely populated interior Alaska, frozen rivers are indispensable for transporting goods, visiting family and delivering kids to school basketball games. Along Alaska’s west coast, the frozen waters of the Bering Sea also act as infrastructure. Each winter, frigid air transforms much of the Bering between Russia and Alaska into sea ice. As it fastens to shore, the ice provides platforms for fishing and hunting, and safe routes between communities. It also prevents wave action and storm surges from eroding the shores of coastal villages.

The ripple effects of this don’t stop. The warmer ocean makes for storms more and more heavy with rain. It also upsets the ecological balance that keeps Alaska’s economy rolling and keeps many of Alaska’s Native population alive. As Smithsonian points out, nobody really knows what the effect of the warming of the Gulf of Alaska will have on the salmon population, but nobody’s speculation is good.

For many, including Rob Campbell, a biological oceanographer with the Prince William Sound Science Center, it stirs unpleasant memories of the Blob, an enormous patch of warm water that formed in the Gulf of Alaska in 2013. It lasted over two years and upset ecological norms across our region. “Today we don’t see as much heat in the gulf as we had beginning in 2013,” says Campbell. “But in general, the northern gulf is 1.5 degrees Celsius above average. It’s a big anomaly heading into summer.” Campbell finds the conditions worrisome. “Continued warmth like this has cascading effects,” he says. “And we may not understand the consequences for species like salmon for years to come.”

Elsewhere in the Arctic and the sub-Arctic, things are no better. On Friday morning, a number of people attending a policy conference in Upper Michigan leapt to the electric Twitter machine to share photos of the gorgeous sunrises and sunsets that they were experiencing.

The reason these are so striking is because the forests in upper Alberta are burning down right now in one of the earliest starts to wildfire season that Canada ever has seen. Smoke from those fires already has ridden the weather systems south as far as Iowa. Some 10,000 people have been evacuated in Alberta, but the fires do make for a nice photo or two thousands of miles away, so there’s that.

Because He Can — Jeffrey Toobin on the douchebaggery of Mitch McConnell.

The boundless cynicism of Mitch McConnell is again on display. The Kentucky Republican, who is the Senate Majority Leader, told a home-state audience that, if there is a vacancy on the Supreme Court in 2020, he will make sure that President Trump’s nominee receives a confirmation vote. This, of course, conflicts with McConnell’s view on the election-year nomination of Merrick Garland, in 2016. After the death of Justice Antonin Scalia, on February 13, 2016, McConnell announced that he would refuse to allow a vote on President Obama’s nominee, and thus would keep the seat open for the next President to fill. McConnell has lately made a halfhearted attempt to distinguish the two situations; he said that Supreme Court seats should be kept open in election years when the Senate and the Presidency are controlled by different parties. (Needless to say, he did not raise this purported distinction in 2016.) But the main reason that McConnell might push through a Republican nominee to the Court while blocking a Democratic choice is simple: because he can.

There’s another, less obvious reason that McConnell can game the Supreme Court confirmation process with impunity. The Republican Party has been far more invested in the future of the Supreme Court, and of the judiciary generally, than the Democratic Party has. Judicial appointments, especially to the Supreme Court, are a central pillar of the Republican agenda, and Republican voters will forgive any number of other transgressions if the Party delivers on the courts.

Donald Trump understood this. That’s why, during the 2016 campaign, he released a short list of possible nominees to the Court. The list was largely compiled by Leonard Leo, the executive vice-president of the Federalist Society, and the names on it demonstrated to the Republican base that Trump was serious about following its agenda—starting with overruling Roe v. Wade. Trump’s nominations of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and of dozens of other conservatives to the lower courts, have been crucial to the President’s preservation of his stratospheric level of support from that base. Conservatives forgive Trump his louche personal life and his casual dishonesty because they know that they are getting the judges and the Justices they want.

Democrats are different. Consider what happened after McConnell blocked the Garland nomination. After a few days of perfunctory outrage, most Democratic politicians dropped the issue. Neither President Obama nor Hillary Clinton, in their speeches before the Democratic National Convention, in July, 2016, even mentioned Garland—or the Supreme Court. Its future was apparently something that neither of them wanted to discuss, or thought that their party, or the nation, wanted to hear about.

Four years later, this pattern is recurring. Consider, for example, the Web sites of three leading contenders for the Democratic Presidential nomination: Joe Biden, Bernie Sanders, and Elizabeth Warren. Each site has thousands of words outlining the candidates’ positions on the issues—and none of them mentions Supreme Court nominations, much less nominations for lower-court judges. These omissions are especially striking in Biden’s case, because he served for decades on the Senate Judiciary Committee, including several years as the chair. He voted on more than a dozen Supreme Court confirmations (including, of course, that of Clarence Thomas) and, as Vice-President, he helped Sonia Sotomayor and Elena Kagan win approval in the Senate. Likewise, since Warren was a law professor before she ran for office, she might be expected to focus on the significance of the Court. But, for the most part, Democrats barely mention it.

It’s difficult to pinpoint why Republicans are so much more motivated by the Supreme Court than Democrats are. Complacency could be part of the reason. Despite a preponderance of Republicans on the Court for the past couple of generations, the Justices have expanded gay rights, including the right to marriage, and preserved abortion rights, by reaffirming Roe. But, thanks largely to McConnell, and, of course, to Trump, those days are likely over. Trump rallied his supporters by promising to appoint Justices who will vote to overturn Roe, and the day of that vote may soon be upon us. By the time Democrats wake up to the importance of the Court, it may be too late.

Doonesbury — Paying the price.

Tuesday, February 19, 2019

Civics Lesson

Learning about the Constitution in practical ways.

A Florida student is facing misdemeanor charges after a confrontation with his teacher that began with his refusal to recite the Pledge of Allegiance and escalated into what officials described as disruptive behavior.

The student, a sixth-grader at Lawton Chiles Middle Academy in Lakeland, Fla., east of Tampa, refused to stand for the pledge in the Feb. 4 incident, telling the teacher that he thinks the flag and the national anthem are “racist” against black people, according to an affidavit. The teacher then had what appeared to be a contentious exchange with the boy.

If living in the United States is “so bad,” why not go to another place to live? substitute teacher Ana Alvarez asked the student, according to a handwritten statement from her.

“They brought me here,” the boy replied.

Alvarez responded by saying, “Well you can always go back, because I came here from Cuba, and the day I feel I’m not welcome here anymore, I would find another place to live.” She then called the school office, as she did not want to keep dealing with the student, according to the statement.

Officials said the situation escalated. The student yelled at the administrative dean and a school resource officer with the Lakeland Police Department after they came to the classroom, accusing them of being racist and repeatedly refusing to leave the room.

“Suspend me! I don’t care. This school is racist,” the student, who is black, told the dean as he walked out of the classroom with his backpack, according to the affidavit.

According to a statement from the Lakeland Police Department, the boy then “created another disturbance and made threats while he was escorted to the office.” He was later charged by police with disruption of a school facility and resisting an officer without violence.

I am sure there are plenty of people who think the teacher and the cops were right to bust this kid for being unpatriotic and refusing to give in to the demands that he salute the flag and recite the pledge.  Fortunately they are in flagrant disagreement with the United States Supreme Court that ruled in 1943 that no state official can compel anyone to be patriotic.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

This would also apply to those who think that football players showing their feelings in a non-disruptive and silent way should be fired.  The Constitution has your number, too.

Friday, February 8, 2019

Justice Roberts Has A Moment

From the Washington Post:

Chief Justice John G. Roberts Jr. joined with the Supreme Court’s liberals Thursday night to block a Louisiana law that opponents say would close most of the state’s abortion clinics and leave it with only one doctor eligible to perform the procedure.

The justices may yet consider whether the 2014 law — requiring doctors at abortion clinics to have admitting privileges at nearby hospitals — unduly burdens women’s access to abortion. The Louisiana law has never been enforced, and the Supreme Court in 2016 found a nearly identical Texas law to be unconstitutional.

This is not a ruling on the case itself.  It is just a block on the law taking effect while it works its way through the courts.  But it’s a hopeful sign that the hard-core right wing majority may not be so hard core and may not be a majority.

It’s interesting to note that Chief Justice Roberts has come down on the side of sanity in a few recent rulings, including keeping Obamacare intact.  That does not relieve him of the odious rulings he’s sided with such as the decimation of voting rights (“Racism?  What racism?”) in Shelby County v. Holder and the granting of First Amendment protections to a checkbook in Citizens United, nor his dissent on same-sex marriage, but this ruling, for now, indicates there may be some hopeful signs that he’s not a complete dick when it comes to basic constitutional protections.

Monday, December 31, 2018

Looking Back/Looking Forward

Time for my annual recap and predictions for this year and next.  Let’s look back at how I did a year ago.

  • There will be indictments at a very high level in the administration as the Mueller investigation rumbles on.  Plea bargains and deals will be made and revelations will come forth, and by summer there will be genuine questions about whether or not the administration will survive.  But there won’t be a move to impeach Trump as long as there are Republican majorities in the Congress, and invoking the 25th Amendment is a non-starter.

I’ll give myself a B on that since it was pretty much that way a year ago and the gears of justice grind slowly but irresistibly.  No high-level members of the administration were indicted, but shame and scandal did bring down an impressive number of folks who had hard passes to the West Wing.

  • The Democrats will make great gains in the mid-term elections in November.  This is a safe bet because the party out of power usually does in the first mid-term of new president.  The Democrats will take back the Senate and narrow the gap in the House to the point that Speaker Paul Ryan with either quit or be so powerless that he’s just hanging around to collect pension points.  (No, he will not lose his re-election bid.)

I’ll go with a C on that since I hit the nail on the head in the first sentence; I should have just left it there.  But no; I had it backwards: the House flipped but the GOP still has the Senate, and who knew that Paul Ryan would decide to quit?

  • There will be a vacancy on the Supreme Court, but it won’t happen until after the mid-terms and Trump’s appointment will flail as the Democrats in the Senate block the confirmation on the grounds that the next president gets to choose the replacement.

I’ll take an A- on that since I got the timing wrong, but I think Brett Kavanaugh did a great job of flailing (“I like beer!”) before the Senate Judiciary Committee.  The predator still got on the court, though, and we all hold RBG in the Light for at least another two years.

  • There will be irrefutable proof that the Russians not only meddled in the 2016 U.S. election, but they’ve had a hand in elections in Europe as well and will be a factor in the U.S. mid-terms.  Vladimir Putin will be re-elected, of course.

A+ Duh.

  • Raul Castro will figure out a way to still run Cuba even if he steps down as president, and there will be no lessening of the authoritarian rule.

Another A+, but what did anyone expect?  Trump’s half-assed attempts to restrain trade with Cuba, along with Marco Rubio doing his yapping perrito act, only make it more ironic when it’s the administration’s policy to cozy up to dictators like Putin and the Saudis.  If Trump owned a hotel in Havana he’d be down there in a second sucking up to the regime with video to prove it.

  • The U.S. economy will continue to grow, but there will be dark clouds on the horizon as the deficit grows thanks to the giveaways in the GOP tax bill.  If the GOP engineers cuts to entitlement programs and the number of uninsured for healthcare increases, the strain on the economy will be too much.

I’ll take a B on this since I didn’t factor in tariffs and the trade war(s) he’s launched that led to wild uncertainty in the markets, not to mention Trump’s bashing of the Fed chair that he appointed and told him to do what he’s doing.

  • This “America First” foreign policy will backfire.  All it does is tell our allies “You’re on your own.”  If we ever need them, they’re more likely to turn their backs on us.

I get an A on this because it has and they are.

  • The white supremacist movement will not abate.  Count on seeing more violence against minorities and more mass shootings.

Sadly, a very predictable A on that.

  • A viable Democratic candidate will emerge as a major contender for the 2020 election, and it will most likely be a woman.  Sen. Elizabeth Warren is considered to be the default, but I wouldn’t rule out Sen. Kamala Harris of California or Sen. Kristen Gillibrand of New York just yet.  (Sen. Gillibrand would drive Trump even further around the bend.  She was appointed to the Senate to fill Hillary Clinton’s seat when she became Secretary of State in 2009.)

I get a B on this because it was rather easy to spot and I’m already getting begging e-mails from Ms. Harris.

  • On a personal level, this will be a busy year for my work in theatre with a full production of “All Together Now” opening in March and several other works out there for consideration.  I will also be entering my last full year of employment in my present job (retirement happens in August 2019) but I’ll keep working.

This was a great year for my playwriting with a lot of new friends and opportunities out there and more to come in 2019 (see below).

  • People and fads we never heard about will have their fifteen minutes.

Yep.  I’ve already blocked them out.

Okay, on to the predictions.

  • Barring natural causes or intervention from an outside force, Trump will still be in office on December 31, 2019.  There is no way he will leave voluntarily and even with the House of Representatives in Democratic control and articles of impeachment being drafted they will not get to the Senate floor because the Republicans are either too afraid to rile up the base or they’re too enamored of their own grip on power to care about the government being headed by a poor imitation of a tin-pot banana republic authoritarian douche-canoe.
  • The Mueller Report will be released to Congress and even though it’s supposed to be classified it will be leaked with great fanfare and pundit predictions of the end of the Trump administration with calls for frog-marching him and his minions out of the West Wing.  Despite that, see above.
  • There will be no wall.  There never will be.  Immigration will still be a triggering issue as even more refugees die in U.S. custody.
  • There will be no meaningful changes to gun laws even if the NRA goes broke.  There will be more mass shootings, thoughts and prayers will be offered, and we’ll be told yet again that now is not the time to talk about it.
  • Obamacare will survive its latest challenge because the ruling by the judge in Texas declaring the entire law unconstitutional will be tossed and turned into a case study in law schools everywhere on the topic of exasperatingly stupid reasoning.
  • Roe vs. Wade will still stand.
  • With the Democrats in control of the House, the government will be in permanent gridlock even after they work out some sort of deal to end the current shutdown over the mythological wall.  House Speaker Nancy Pelosi will become the Willie Horton for the GOP base and blamed for everything from budget deficits to the toast falling butter-side down.
  • We will have a pretty good idea who the Democratic front-runner will be in 2020.  I think Sen. Elizabeth Warren’s chances are still good (she announced her exploratory committee as I was writing this), as are Sen. Kamala Harris’s, and don’t count out Sen. Sherrod Brown of Ohio, but who knew that Beto O’Rourke, a charismatic loser in the Texas senate race, would raise a lot of hopes?  That said, fifteen years ago when I started this blog, Howard Dean looked like the guy who was going to beat George W. Bush.
  • The economy will continue with its wild gyrations, pretty much following the gyrations of the mood of Trump and his thumb-driven Twitter-fed economic exhortations.  The tax cuts and the tariffs will land on the backs of the people who provide the income to the government and the deficit will soon be out there beyond the Tesla in outer space.  But unlike that Martian-bound convertible, the economy will come crashing back to Earth (probably about the time I retire in August) and Trump will blame everyone else.
  • There will be a natural event that will convince even skeptics that climate change and sea level rise is real and happening.  Unfortunately, nothing will be done about it even if lots of lives are lost because [spoiler alert] nothing ever is done.
  • I’m going out on a limb here with foreign affairs predictions, but I have a feeling that Brexit will end up in the dustbin of history.
  • Personally, this will be a transition year.  My retirement from Miami-Dade County Public Schools occurs officially on August 31, 2019, and I’m already actively looking for something both meaningful and income-producing to do after that.  (E-mail me for a copy of my resume; nothing ventured, nothing sprained.)  My play “Can’t Live Without You” opens at the Willow Theatre in Boca Raton, Florida, for a two-week run on March 30, and I’m planning on returning to the William Inge Theatre Festival for the 28th time, either with a play or most assuredly with a scholarly paper.  I have my bid in for a variety of other theatre events and productions; I think I’m getting the hang of this playwriting thing.
  • I will do this again next year.  I hope.  As Bobby says, “Hope is my greatest weakness.”

Okay, your turn.  Meanwhile, I wish continued good health and a long life to all of you and hope you make it through 2019 none the worse for wear.

Friday, November 9, 2018

A Good Fit

Matthew Whitaker, the acting attorney general, seems like a perfect fit for the Trump administration.

Before Whitaker joined the Trump administration as a political appointee, the Republican lawyer and legal commentator complained that special counsel Robert S. Mueller III’s investigation of Russian interference in the election and of the Trump campaign was dangerously close to overreaching. He suggested ways it could be stopped or curtailed and urged his followers on Twitter to read a story that dubbed the investigators “Mueller’s lynch mob.”

Now — at least on an interim basis — Whitaker will assume authority over that investigation, an arrangement that has triggered calls by Democrats for him to recuse himself.

He also harbors interesting views on the role of the Supreme Court in the scheme of things, arguing that the landmark 1803 Marbury v. Madison case that affirmed the court’s role as the final arbiter of interpreting the Constitution was one of the worst decisions the court has rendered.

“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

He also seems to think that our laws descend from a higher power.

During a 2014 Senate debate sponsored by a conservative Christian organization, he said that in helping confirm judges, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.”

At that point, the moderator interjected: “Levitical or New Testament?”

“New Testament,” Whitaker affirmed. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”

Religious tests for judges are barred by the Constitution, but I think we already know where he stands on interpreting it.

To round out the rest of the portfolio, as an attorney he’s been accused of defrauding clients.

When federal investigators were digging into an invention-promotion company accused of fraud by customers, they sought information in 2017 from a prominent member of the company’s advisory board, according to two people familiar with the probe: Matthew G. Whitaker, a former U.S. attorney in Iowa.

It is unclear how Whitaker — who was appointed acting attorney general by President Trump on Wednesday — responded to a Federal Trade Commission subpoena to his law firm.

In the end, the FTC filed a complaint against Miami-based World Patent Marketing, accusing it of misleading investors and falsely promising that it would help them patent and profit from their inventions, according to court filings.

In May of this year, a federal court in Florida ordered the company to pay a settlement of more than $25 million and close up shop, records show. The company did not admit or deny wrongdoing.

Whitaker’s sudden elevation this week to replace fired Attorney General Jeff Sessions has put new scrutiny on his involvement with the shuttered company, whose advisory board he joined in 2014, shortly after making a failed run for U.S. Senate in Iowa.

At the time, he was also running a conservative watchdog group with ties to other powerful nonprofits on the right and was beginning to develop a career as a Trump-friendly cable television commentator.

So, he’s got authoritarian-executive views of the basic laws of the country, he wants religious tests for judges, and he’s provided legal counsel to a fraudulent get-rich-quick scheme here in Florida.

My only question is why wasn’t he the first pick for Trump’s attorney general before Jefferson Beauregard Sessions III?

Bonus Track: According to two highly-respected legal scholars, Neal K. Katyal and George T. Conway III, Trump’s appointment of Mr. Whitaker as acting attorney general is unconstitutional.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.

It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

I heard one conservative commentator suggest that the Federal Vacancies Reform Act of 1998 allows such appointments in the case of a vacancy or incapacity, but it is for a relatively short period, and besides, the Constitution has supremacy.  So if Mr. Whitaker tries to fire Robert Mueller, he may face a legal challenge.

PS: Karma strikes again: George T. Conway III, the co-author of the op-ed, is married to Kellyanne Conway.

Tuesday, October 2, 2018

Tamper, Tamper

It’s never the crime but the cover-up that gets you.  Don’t they teach that at Yale, or was Brett Kavanaugh too busy talking to Ralph on the big white phone?

I’m not a lawyer but with my vast knowledge of “Law & Order” reruns as support, I know that even dropping a postcard to a potential witness is a no-no.

In the days leading up to a public allegation that Supreme Court nominee Brett Kavanaugh exposed himself to a college classmate, the judge and his team were communicating behind the scenes with friends to refute the claim, according to text messages obtained by NBC News.

Kerry Berchem, who was at Yale with both Kavanaugh and his accuser, Deborah Ramirez, has tried to get those messages to the FBI for its newly reopened investigation into the matter but says she has yet to be contacted by the bureau.

The texts between Berchem and Karen Yarasavage, both friends of Kavanaugh, suggest that the nominee was personally talking with former classmates about Ramirez’s story in advance of the New Yorker article that made her allegation public. In one message, Yarasavage said Kavanaugh asked her to go on the record in his defense. Two other messages show communication between Kavanaugh’s team and former classmates in advance of the story.

In now-public transcripts from an interview with Republican Judiciary Committee staff on September 25, two days after the Ramirez allegations were reported in the New Yorker, Kavanaugh claimed that it was Ramirez who was “calling around to classmates trying to see if they remembered it,” adding that it “strikes me as, you know, what is going on here? When someone is calling around to try to refresh other people? Is that what’s going on? What’s going on with that? That doesn’t sound — that doesn’t sound — good to me. It doesn’t sound fair. It doesn’t sound proper. It sounds like an orchestrated hit to take me out.”

The texts also demonstrate that Kavanaugh and Ramirez were more socially connected than previously understood and that Ramirez was uncomfortable around Kavanaugh when they saw each other at a wedding 10 years after they graduated. Berchem’s efforts also show that some potential witnesses have been unable to get important information to the FBI.

Aside from the fact that you really don’t need to have a possible Supreme Court justice committing a felony just to save his dream job, the arrogance with which he does it — “hey, you’re gonna back me up on this” — speaks to his stinking attitude of white male privilege: how dare anyone — especially a woman — try to deny me my entitlement.

Monday, October 1, 2018

Sham Wow

If you believe the FBI investigation into allegations against Brett Kavanaugh isn’t a sham, well, buddy, have I got some real estate just west of here for you.

The FBI has received no new instructions from the White House about how to proceed with its weeklong investigation of sexual misconduct allegations against Supreme Court nominee Brett Kavanaugh, a senior U.S. official and another source familiar with the matter tell NBC News.

According to the sources, the president’s Saturday night tweet saying he wants the FBI to interview whoever agents deem appropriate has not changed the limits imposed by the White House counsel’s office on the FBI investigation — including a specific witness list that does not include Julie Swetnick, who has accused Kavanaugh of sexual misconduct in high school.

Also not on the list, the sources say, are former classmates who have contradicted Kavanaugh’s account of his college alcohol consumption, instead describing him as a frequent, heavy drinker. The FBI is also not authorized to interview high school classmates who could shed light on what some people have called untruths in Kavanaugh’s Senate Judiciary Committee testimony about alleged sexual references in his high school yearbook.

So basically the White House is doing what they do best: obstructing justice while saying they’re open to any and all investigations.  It’s all bullshit and they know it.

What I find impressive is that they can pull off this and expect — even count on — the rest of us to nod and say, “Oh, okay.”  That takes chutzpah; something never in short supply with these people.

Monday, September 24, 2018

Another Woman Comes Forward

From The New Yorker, Ronan Farrow and Jane Mayer report on another woman coming forward to accuse Brett Kavanaugh of sexual misconduct, this time in college.

As Senate Republicans press for a swift vote to confirm Brett Kavanaugh, President Trump’s nominee to the Supreme Court, Senate Democrats are investigating a new allegation of sexual misconduct against Kavanaugh. The claim dates to the 1983-84 academic school year, when Kavanaugh was a freshman at Yale University. The offices of at least four Democratic senators have received information about the allegation, and at least two have begun investigating it. Senior Republican staffers also learned of the allegation last week and, in conversations with The New Yorker, expressed concern about its potential impact on Kavanaugh’s nomination. Soon after, Senate Republicans issued renewed calls to accelerate the timing of a committee vote. The Democratic Senate offices reviewing the allegations believe that they merit further investigation. “This is another serious, credible, and disturbing allegation against Brett Kavanaugh. It should be fully investigated,” Senator Mazie Hirono, of Hawaii, said. An aide in one of the other Senate offices added, “These allegations seem credible, and we’re taking them very seriously. If established, they’re clearly disqualifying.”

The woman at the center of the story, Deborah Ramirez, who is fifty-three, attended Yale with Kavanaugh, where she studied sociology and psychology. Later, she spent years working for an organization that supports victims of domestic violence. The New Yorker contacted Ramirez after learning of her possible involvement in an incident involving Kavanaugh. The allegation was conveyed to Democratic senators by a civil-rights lawyer. For Ramirez, the sudden attention has been unwelcome, and prompted difficult choices. She was at first hesitant to speak publicly, partly because her memories contained gaps because she had been drinking at the time of the alleged incident. In her initial conversations with The New Yorker, she was reluctant to characterize Kavanaugh’s role in the alleged incident with certainty. After six days of carefully assessing her memories and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away. Ramirez is now calling for the F.B.I. to investigate Kavanaugh’s role in the incident. “I would think an F.B.I. investigation would be warranted,” she said.

In a statement, Kavanaugh wrote, “This alleged event from 35 years ago did not happen. The people who knew me then know that this did not happen, and have said so. This is a smear, plain and simple. I look forward to testifying on Thursday about the truth, and defending my good name—and the reputation for character and integrity I have spent a lifetime building—against these last-minute allegations.”

The White House spokesperson Kerri Kupec said the Administration stood by Kavanaugh. “This 35-year-old, uncorroborated claim is the latest in a coordinated smear campaign by the Democrats designed to tear down a good man. This claim is denied by all who were said to be present and is wholly inconsistent with what many women and men who knew Judge Kavanaugh at the time in college say. The White House stands firmly behind Judge Kavanaugh.”

What I find interesting about both this and the first story about the high school party that started all of this is Judge Kavanaugh’s insistence that neither that nor this incident took place at all.  He’s not equivocating with lines like, “I don’t recall,” or even, “Yeah, I was there but it wasn’t me.”  He’s going full-tilt denial, which makes it a binary choice: either he’s telling the truth and a bunch of other people are lying, or he’s lying and he’s counting on a bunch of other people to back him up.  There’s no half-way on this for him or for the accusers.

If this was a court of law (and if I was a lawyer), I’d say he has the presumption of innocence and the burden of proof beyond a reasonable doubt was on the accusers.  But it isn’t (and I’m not) so what it comes down to is who do you believe?  Women who have nothing to gain and clearly are putting their careers (and in the case of Prof. Ford, her safety) on the line are coming forward.  Judge Kavanaugh has his reputation — and that’s a valuable commodity — but his current job is not at risk unless the Senate chooses to open impeachment hearings.  Clearly the stakes are not equal.  So both Prof. Ford and Ms. Ramirez must be both sure of themselves and their recollections, while Judge Kavanaugh is not allowing for any room for error.

Which brings me back to my original point: why is he so dead-set certain that both women are lying and the incidents never happened?  After all, if his supporters can say that it happened so long ago and the women were clearly intoxicated to the point that they can’t remember it clearly, how is it that Judge Kavanaugh recalls so clearly that nothing happened at all?  Why isn’t his memory of events so long ago just as hazy?  We already have circumstantial evidence that he knew how to party in high school; how is it that he’s so sure that he wasn’t at the party in question in Maryland or at Yale?

Either he’s relying on the fact that it’s very hard to prove a negative, or he’s taking his cues from the man who nominated him to the Supreme Court.  Trump has never admitted to anything even when there’s undisputed proof.  So far it’s worked for him.

Sunday, September 23, 2018

Sunday Reading

Kavanaugh Cursed Either Way — Francis Wilkinson at Bloomberg on the doomed nomination even if he’s confirmed.

One way or another, Brett Kavanaugh will have to pay.

He will not necessarily pay explicitly for whatever it was he did or didn’t do on that contested night long ago. Although if Christine Blasey Ford appears to testify before the Senate Judiciary Committee, and if she acquits herself credibly, then Kavanaugh is unlikely ever to sit on the Supreme Court – no matter what Senate Republican leader Mitch McConnell says.  [Ed. note: Prof. Ford has agreed to appear before the committee on Thursday, September 27.]

Kavanaugh can wait to see if Ford’s allegations fall apart under questioning. It’s possible she’ll prove a jumble of contradictions. But from what we know so far, it’s hard to imagine she would. Ford doesn’t have to be sure of the color of paint on the wall 35 years ago. She only needs to be sure of the details of the attack as she has already described it.

Conservatives viewing her actions as a product of Democratic skulduggery fool themselves. Her allegations were problematic for Democratic Senator Dianne Feinstein, who first received them in confidence. If Democrats had plotted to weaponize the allegations for best effect, this late-inning muddle would not have resulted.

If McConnell is correct and Republicans manage to push Kavanaugh through to the high court, no matter what, Kavanaugh won’t be out of the woods.

This is not 1991, when Anita Hill accused soon-to-be Supreme Court Justice Clarence Thomas of sexual harassment. And Kavanaugh, the beneficiary of virtually every privilege that status and education can afford, is not Thomas.

Democrats in 1991 were already the party of feminists. But many of the Democratic men in Congress – Barbara Mikulski was the lone Democratic woman in the Senate – were just as doltish toward a female accuser as Republican senators are today.

That’s no longer the case. Democrats have four women on the Judiciary Committee, and the men are so different from the cast of 1991 that Senator Chris Coons of Delaware has publicly mused that maybe he should cede his committee time to his two female colleagues who are former prosecutors and superior interviewers.

More important, the Republican Party of 1991 is not the party of 2018. The party leader then was George H.W. Bush, a war hero with pronounced social graces. The current leader is a habitual liar and crude demagogue who has been accused of sexual predation by more than a dozen women while continuing to behave as cad-in-chief.

The GOP of 2018 views the Supreme Court differently as well. Republicans were not facing electoral attrition in those days, desperately trying to sabotage the future. Republicans had held the presidency for three terms and were on the verge of a historic victory in the House over a corrupt and complacent Democratic majority.

Now, Republicans are investing in a partisan court to deliver partisan outcomes to advance partisan goals that are insulated from democratic accountability, such as elections and popular opinion, which Republicans increasingly fear.

That’s why they killed the legitimate nomination of Merrick Garland to the court. And it’s why bad faith saturates their every act concerning the court; they view it as an antidemocratic firewall to protect their culturally narrow and politically unpopular agenda.

It will be in Democrats’ political interest to delegitimize a partisan Republican court waging war against a Congress and state governments under Democratic control. When Democrats regain sufficient strength in Washington, Kavanaugh will appear to them as a wounded, vulnerable prey.

Democrats can revisit evidence of his misleading testimony. They can pursue documentary corroboration, among the vast trove to which Republicans denied the Democrats and the public access, to buttress potential claims of perjury. And if Ford is bullied out of her moment now, they can give the alleged victim a belated but still-powerful platform, designed to her specifications.

A public re-vetting of Kavanaugh would take place in a very different context – almost certainly after special counsel Robert Mueller has given an accounting of his investigation into Donald Trump. By the time Kavanaugh’s case would be reopened and relitigated by a Democratic majority, perhaps not until 2021, everything Trump previously touched will likely appear tainted, and suspect.

The Kavanaugh saga is still fluid and its outcome uncertain. Kavanaugh might yet make it to the Supreme Court. But barring the unlikely collapse of Ford’s allegations, questions of Kavanaugh’s legitimacy will not end. Sooner or later the chalice will reveal itself to be poisoned.

Leonard Pitts, Jr. on the rush to social media judgment.

“Judge not, and ye shall not be judged.” Jesus preaches that in the book of Luke.

But then, Jesus never had Twitter. Or, for that matter, Instagram or Facebook. He never had, in other words, one of the social media platforms on which millions of us routinely judge other people every day. It’s a habit we might do well to reconsider.

Not that anybody should feel remorse over the online humiliation administered to someone like Aaron Schlossberg, captured on video berating people at a New York City cafe for speaking Spanish. And the social media beatdown Jeffrey Whitman took after following another driver to his home in Columbus, Ohio to yell racial slurs should make no one’s eyes sting with sympathy tears.

But what about Geoffrey Owens, the former “Cosby Show” actor who was infamously job-shamed for working at Trader Joe’s? And what about Anthony Torres?

He was video recorded by another passenger a little over a week ago, shaving his face on a New Jersey Transit train as it pulled out of New York City. At one point he even flicked shaving cream to the floor. The clip was posted to Twitter – it has since been removed – where it racked up over 2 million views. The reaction was, not surprisingly, swift and brutal.

Torres was called “disgusting,” a “dumb drunk,” a “slob,” – and an “animal.” Then the Associated Press found him and got his side of the story.

“My life is all screwed up,” Torres told the AP. “That’s the reason I was shaving on the train.”

Torres, it turned out, came to that moment from a lifetime of hard knocks: peripatetic years of chasing work from state to state, sometimes sleeping in motels and bus stations, two strokes since 2016. That day, he was fresh from a homeless shelter. One of his brothers had bought him a ticket so he could go to another brother in South Jersey. Torres, 56, was shaving because he didn’t want to look like what he’s been through.

As to why he didn’t do the obvious — shave in the restroom — Torres’ brother Thomas told the AP that even as a child, Anthony lacked the ability to conceive the consequences of his actions. “When he did what he did, that, to him, was normal.”

After all this came out, the response was what you’d expect: lots of recrimination and a Go Fund Me account that, as of Thursday afternoon, had raised $37,000.

The Internet taketh away, the Internet giveth.

In the process, it leaveth an observer ruminating on the hazards of an era of digital lynch mobs wherein one can carp and fault-find without ever leaving the comfort of one’s couch. Problem is, there is something about viewing other people on screens — viewing them at a remove — that tends to objectify them, make them not quite real. And there is something about the anonymity of social media that does not encourage us to be our best and most compassionate selves.

That can be a toxic combination, as Owens and Torres would surely attest. It’s given us a culture of instant, online opprobrium that falls on both the evil and the unlucky with indiscriminate force. Social media empower us to shame the shameful, but they also allow us to victimize the vulnerable. What does it say about us when we can’t — or won’t — tell the difference? What does it say about what we’ve become?

Someone called Torres an “animal.” But he’s no animal. He’s just a guy whose life hasn’t worked out, just someone’s brother who was trying to get home.

And you can’t deny someone else’s humanity without losing a little of your own.

Doonesbury — Report from the swamp.

Thursday, September 20, 2018

Rush To Judgeship

The Republicans are in an awful hurry to get Brett Kavanaugh onto the Supreme Court, pushing Prof. Ford with the “take-it-or-leave-it” deadline to testify on Monday.  It’s as if they know that if they can’t whoop him through next week, it’s all going to go sideways until after the election when perhaps the rising tide and gorge of voters see what they’re pulling off sweeps a bunch of Republicans out of office and their chances go a-glimmering.

Ironically, they were smugly content to keep the Scalia seat open on the court for over 400 days while Merrick Garland cooled his heels waiting for so much as a postcard from Mitch McConnell, and now all of a sudden it’s really important to get it done.  Kinda like there’s some political reason for it, huh?

A lot of us were hoping that they learned a lesson from the Anita Hill / Clarence Thomas hearings in 1991.  Unfortunately the lesson the Republicans learned and still practice is that you can vilify a witness and defend a predator and get your creepy guy onto the court, and that’s all that matters.  They’ve learned nothing from history, and to them the #MeToo movement is nothing but a bunch of shrill women with made-up stories and exaggerated claims because some dude brushed up against them in the elevator and didn’t fall over with apologies and a court settlement.  They got their guy on the Supreme Court and that’s all that matters.

Monday, September 17, 2018

If History Is Any Guide

The fact that Brett Kavanaugh’s accuser of sexual assault has come forward and is willing to testify is good in that it removes the shadow of anonymity behind which his supporters can hide and dismiss the claim.  But if history — in the name of Anita Hill — is any guide, it is she who will be vilified and Judge Kavanaugh portrayed as the victim, and the Republicans will still vote to confirm him to the Supreme Court.

It’s not just the intervening years since Anita Hill testified that Clarence Thomas displayed himself as a sexual predator or the emergence of the #MeToo movement have elevated the consciousness of sexual assault and the pervasive ways in which the perpetrators try to convince us that it’s all a witch hunt.  They haven’t, even though the number of people who have been brought to justice — or at least been identified and faced the consequences — has risen dramatically in the last few years.  It’s only been happening among those who have a conscience, and oddly enough, the people who preached the loudest about “character counts” and worried endlessly about what to tell the children, are the ones who rise to the defense of the accused and find creative ways of dismissing the charges.

The vote may be delayed.  Christine Blasey Ford may give testimony on live TV, reenacting the Clarence Thomas hearings of 1991.  But in the end — and especially with their party led by someone who was able to be elected while bragging about committing sexual assault — they will find a way to confirm Judge Kavanaugh to the court.  Then he and Justice Thomas can share a Coke and a smile.

Wednesday, September 5, 2018

Brett And Circuses

The first day of the Kavanaugh hearing devolved quickly to consternation and shouting matches.

Through most of the day, the nominee sat silently in the center of the room, alone at a table below the senators and in front of more than 100 reporters and nearly that many citizens who had waited for hours in line for their few minutes of inspirational democracy in Hart Senate Office Building Room 216.

All around him, democracy happened. It wasn’t pretty. The first seven hours of the Kavanaugh hearing broke down like this:

About three hours consisted of Democrats saying to their esteemed Republican colleagues that they did not provide the documents Democrats need to decide if Kavanaugh should get a lifetime appointment to the nation’s top court, with the Republicans responding to their friends across the aisle that yes, we actually did.

The debate in the greatest deliberative body in the world proceeded more or less as follows:

Did not.

Did so.

The Republicans and their pundit minions were shaking their heads and tut-tutting about the complete lack of decorum and class that the Democrats and protestors brought to the hearing, even though it came off as a tepid imitation of the warm-up acts for a Trump rally.  The shouters have nothing on the #MAGA crowds in airplane hangars and county fairs.

I think the most telling moment of the day was one that passed in silence, hardly even noticeable by the hundreds of reporters and flashbulbs.

It happened in the middle of a contentious meeting taking place in a country whose political divide seems to grow deeper by the day.

As the room broke for lunch during the confirmation hearings for Supreme Court nominee Brett Kavanaugh, a man approached the judge from behind and was able to get his attention. Kavanaugh turned to look at the man, who later identified himself on social media as Fred Guttenberg, the father of Jaime Guttenberg, one of the 17 people killed in the Parkland school shooting in February, as he stuck out his right hand. He appeared to say, “My daughter was murdered at Parkland.”

Kavanaugh gave the man a look but declined to shake his hand. It is not clear whether he heard Guttenberg’s introduction, though the two were standing within a few feet of each other. Another man, who a White House spokesman later said was a security guard, had come to Guttenberg’s side by that point.

(Photo by Andrew Harnik/AP)

The interaction was captured on camera — both in an arresting photograph shot by the Associated Press and multiple video cameras recording from different angles. And it quickly began to circulate on social media, an instant visual artifact trending as a stand-in for a politically complex and emotionally intense moment in American history.

As they say, a picture says a thousand words, so there you have it.