Saturday, June 30, 2018

A Few Additional Thoughts About The Potential Fate of Roe

Obviously, in considering what a Supreme Court with five solidly conservative votes might do to the country's jurisprudence, almost all of the focus has been on Roe v. Wade, the 1973 landmark decision that recognized a constitutional right to abortion services for women.  It was Roe, after all, that shifted the focus of the conservative moment toward the goal of changing the Court's composition so that it would, one day, overturn the decision.  Reversing Roe has for decades now been, if one may pardon the expression, the Holy Grail of social conservatives.  And now, depending on what happens not only with the nomination and confirmation process for Anthony Kennedy's successor, but also with the midterm elections and the fate of the current Republican majority in the Senate, the Grail may actually be in sight.

So it is worth pondering, for a few moments, the outcome of reversing Roe.  What happens then?  Do we suddenly, or eventually, find ourselves living in a world not unlike the one depicted in Margaret Atwood's "The Handmaid's Tale," where the reproductive rights of women are completely controlled by a theocracy, one not unlike the contemporary American evangelical movement?  (Full disclosure for those who have not previously read my blog:  I am what I would call a recovering evangelical, now a converted Jew, who knows a thing or two about how evangelicals think and operate.)

It's more likely than not that any reversal of Roe would be based on an analysis of constitutional rights as defined by the Tenth Amendment, which reserves any rights not explicitly guaranteed by the texts of the Constitution or the Bill of Rights to the states or the people.  As the conservative justices would probably put it, since the texts of both documents do not explicitly refer to a right to abortion services, that right must necessarily be defined by the States and the voters (i.e., "the people").  This would undoubtedly led to various levels of abortion rights in different states, depending on the views of the voters in those states and the state governments they elect.

What might be true then, at least initially, is that abortion laws in different states might tend to move even further toward the extremes.  Blue states, free of various restrictions enacted by Congress and the federal courts over the years, might end up permitting unlimited abortion on demand, while red states, no longer obliged by Roe to guarantee some level of access to abortion services would come up with levels of restrictions on women's health care services hitherto undreamed of by the Falwells and Grahams of the world.

The problem with this, however, is essentially the problem with so-called conservative efforts at health care reform, which tends to put ultimate decision-making power on providing health care at the state level.  Health care is not only a national system, but an international one, which means that any decisions made on regulating it ultimately have to be made at the national and international level.  As a consequence, even if Roe is reversed, Congress and whoever is President (hopefully, not the morally-compromised narcissist we have now) will be forced to develop some sort of federal law that will, in turn, control the level of abortion services across the country.  In other, more concise words, we may be right back to where we are now, politically, on the question of abortion.

And there is yet one more interesting, potentially complicating factor for the future legality of abortion services in America.  (Spoiler alert:  it's good news for the pro-choice side.)

The Equal Rights Amendment, which has been limping along toward ratification for decades, is now just one state legislative approval away from full ratification and becoming part of the Constitution.  True, a Democratic Congress and President would have to waive the inability of the ERA to be ratified prior to an earlier statutory deadline, but that's little more than a formality.  As someone who has long imagined (gleefully) the litigation potential in the ERA being part of the fundamental law of the land, it has occurred to me that a reasonable position in litigation on the abortion question might produce the outcome that, for the ERA to be upheld, women could not be allowed to suffer a burdening of their rights based on the disparate impact of pregnancies on women, as opposed to men whose lives are not similarly burdened.  This line of thinking could, in a post-Roe world, lead to a Supreme Court decision that, for all practical purposes, revives Roe under another name.  Then, of course, overturning that decision would become the new Holy Grail of the social conservative moment.

And, to borrow a lyric from Cher, the beat would go on.  And on.  And on.  With quite literally no end in sight.

I have rejected Bill Clinton as a political hero; however, there is something to be said for his standard for the existence of abortion services:  safe, legal, and rare.  I can't help but think that both sides of this seemingly never-ending debate would be better served by less friction in the legal/governmental system, and more cooperation toward making the Clinton standard not only the national one, but the international one.  Women and children everywhere could potentially benefit so much from that level of cooperation.

And it might not hurt our legal/governmental system either.  Maybe, just maybe, it could finally get back to focusing on making the country better, and less on who's winning the political game of chess that never ends.

Time For The Democrats To Create A New Reality

Unsurprisingly, the news of Justice Kennedy's retirement from the Supreme Court unleashed panic attacks among Democrats in Washington, and progressives around the country.  No longer, it seems, would there be a proverbial "swing" vote joining the Court's Democratic appointees in throwing liberals and their supporters the occasional judicial bone (especially major ones like the Obergefell decision on marriage equality).  Instead, thanks to Donald Trump and the ever-duplicitous Republican Senate Majority Leader, Mitch McCONnell, there will soon be a majority-for-life (however long that may be) of five conservative Justices on the Court, ready to reflexively shoot down any and all major precedents of an even remotely forward-looking, people-protecting nature.  Including--and especially--Roe v. Wade.

Or will any of this happen?

Trump holds the power of nomination, and knows that he owes his undeserved place in the White House to the support of evangelical voters who were willing to lose their souls for something less than the world (in this case, control of the highest court in the land).  As for McCONnell, he effective holds the power of advice and consent with regard to the constitutional power of confirming Trump's nominees.  He has already shown himself to be a complete master of how to abuse that constitutional power, first by inventing a "Biden rule" to deny the Obama-nominated Merrick Garland even a vote for the better part of an entire year, and then usurping the power of Senate Democrats to filibuster Trump's alternative to Garland, Neil Gorsuch.  In both instances, McCONnell was able to command the loyalty of every vote in his caucus; in the case of the Gorsuch nomination, he was even able to intimidate several red-state Democrats into "offering" their support.

So, on the surface, nailing down that five-seat reflexively conservative majority on the Court should be a political slam-dunk.

But does it have to be?

I am, at this moment, reminded of that unfortunate statement made by a member of the George W. Bush Administration, in which he famously said that the United States was now an empire that no longer needed to heed anyone's definition of reality--that it was powerful enough to create its own reality.  In the context of fighting the Iraq war, that type of assertion seems dangerously deluded at best, and dangerously meglomaniacal at worse.  However, as applied to issues of a slightly lesser geopolitical magnitude, I'm not sure that there isn't something all of us can't learn from that assertion.

History, even recent history, is filled with instances of people who successfully defied the odds, not necessarily winning victories in the short run, but helping to build them in the long run.  And, sometimes, even moments that weren't designed to be moments of triumph ended up being just that, simply because people acted on their beliefs and not on the calculations of others. 

In a way, Barack Obama illustrates both points.  The chain of victories for civil rights that was set into motion by the Court's Brown vs. Board of Education decision resulted in Obama's election to the U.S. Senate.  His successful presidential campaign was another story; up until the collapse of the financial markets in September of 2008, I thought the the election was John McCain's to lose.  That collapse had almost everything to do with Obama's election.  But had Obama not entered the Democratic race that year--a race that was supposedly Hillary Clinton's to lose--he would not have been able to turn that collapse into the history-making moment of his election.

Luck, as Brooklyn Dodgers general manager Branch Rickey once said, is the residue of design.  And he knew what he was talking about; he knew that the major leagues would have to be integrated one day, but he also know that it would take just the right ballplayer to make it work.  He waited until he had that player--Jackie Robinson--who then went on to make it work.

So why should the Democrats--and their supporters, for that matter--simply accept the consensus odds that there is nothing they can do to stop Trump and McCONnell from packing the Supreme Court?  Yes, it looks right now like there's a glide path to that accomplishment.  But a lot could happen to destroy that path.  And it might only happen if Democrats in Washington stop focusing on the odds and start focusing on why they've been sent there by the voters in the first place--to fight for the people against the powerful (to borrow from Al Gore).

As it turns out, Democrats have regrets about not having fought harder for Garland during the pendency of his nomination.  Those regrets seem to come less from a belief that such an effort would have been successful (it may very well not have been) and more that there is more to be gained in the long run by not running away from every showdown with their Republican counterparts.

For that matter, is it true that they can do nothing?

Not everyone thinks so.  Here is one writer's list of helpful suggestions.  Here is yet another suggestion, and my personal favorite.  After all, there's no constitutional limit to the size of the Supreme Court.  And no "Biden rule" to stop anyone from expanding its membership.  True, it didn't work for FDR.  But that was in a very different era, one in which the Senate functioned in a more bipartisan way than it does now.  We may now very well be in an era in which two wrongs do make a right.

What is essential for Democrats and progressives to understand is that, in the age of Trump, there can and should be no attempt to wait for "a better moment to fight" to come.  That moment may very well never show up.  And, even if it does, nothing will have been gained by staying on the bench waiting for that moment.  If a person has never even learned how to fight by fighting, how will that person even know what that "better moment" really looks like, in order to be able to take advantage of it?

The time to fight is NOW.  Not just because of what could be at stake in future Supreme Court decisions, but also because to not even try may be what leads to a political defeat from which we may never recover.  We cannot wait for reality to move in our favor; none of the great movements in history happened all by themselves.  They happened because people who cared above all about what is right got off their duffs and pushed.  Hard.

Are you listening, Chuck Schumer?  Are you listing, Senate Democrats?  Get off your duffs and push for a better reality.  That's what your being paid for.  That's what your oaths of office require you to do.  For G-d's sake, GO DO IT!

The Seduction Of Anthony Kennedy?

The Capital-Gazette tragedy is the worst story from last week; the loss of life guarantees it that distinction.  But another story potentially presages even more potential loss of life and liberty, with more than a hint of potential corruption linking the Presidency and the Supreme Court.

Submitted, for your consideration, is the following sequence of events:

1)  Supreme Court Associate Justice Anthony Kennedy, the supposed "swing" vote between the liberal and conservative wings of the Court, sided with the conservative majority on a trio of high-profile cases involving Donald Trump's travel ban against some Muslims,* the legal obligation of pregnancy crisis centers to provide information on abortion services, and requirements that public employees pay mandatory dues to unions that represent their interests, but in which they do not have formal membership.

2.) The aforesaid Justice Kennedy submitted to Trump his resignation from active service on the Court, in unusually smarmy language.  ("My dear Mr. President"?  Really?)

3)  Within days for the aforementioned resignation, the New York Times reveals, in a profile of Republican efforts to induce Kennedy to resign ahead of midterm elections that might shift Senate control (and the power to confirm judicial appointees) to Democrats, that Kennedy's son may have, er, *ahem*, "helped" Trump's business interests with loans in nine figures or more.

All this news, in less than a week.  You've got to say this much in Trump's favor:  his business "acumen" certainly seems to have accelerated the rate at which corruption has spread.

And the reach of that corruption as well.

Kennedy, Ronald Reagan's third choice to replace Lewis Powell on the High Court (after Robert Bork and Douglas Ginsburg), has generally enjoyed a favorable reputation during his three-decade career as an Associate Justice.  His reputation as the Court's "swing" vote has yielded some important victories for progressive interests, most notably the majority opinion in Ogberfell v. Hodges that established a constitutional right to marriage equality for gays and lesbians.  And, apart from political ideology or judicial philosophy, his personal and professional reputation have been unblemished by scandal.

Until now.  Now, we are left with the possibility that Kennedy, knowing that he and his family were about to be hit with some political dirt, courtesy of the Times, decided to be very un-swingy on three major decisions, and then, as an additional gift to his son's debtor, open up a vacancy on the Court that could be filled with whiplash speed by the Republicans ahead of the midterms.  All locked into place before the (shall we say) dirt hit the proverbial fan.

And, given that this is Trump that we're talking about, exactly how unlikely is that possibility?

How difficult is it to imagine Trump, in exchange for a rather sizable loan that he may or may not be able to pay back (remember:  Trump), promising to give Kennedy the most favorable possible treatment with regard to replacing him on the Court, including an exit that would help Kennedy to atone for some if the more liberal consequences, first by locking in some major conservative victories in important cases, and then exiting at a time that would theoretically put pressure on Democrats in red states to be intimidated (or, as they say, "bipartisan") with regard to their votes for Kennedy's replacement?

Not difficult at all, I'm afraid.  As several people (myself included) have said on more than one occasion, Trump has a reverse Midas touch.  He corrupts and destroys everything he touches.  Even Supreme Court Justices, it seems.

*Exceptions to the ban, of course, exist for Muslims from nations in which Trump's real estate company has or will soon have development projects.  This despite the fact that several of these nations have supplied terrorists who have attacked U.S. citizens, including, of course, those who were killed in the September 11, 2001 attacks on the World Trade Center and the Pentagon.  One should reflect carefully on this, in assessing how seriously Trump takes his responsibilities for keeping the nation safe, avoiding conflicts of interests, and otherwise avoiding Constitutional violations that could provide the basis for impeachment hearings (the Emoulments Clause of the Constitution comes to mind).

Is Lacking A Conscience An Impeachable Offense?

It's doubtful that the framers of the Constitution would have ever imagined a President so wrapped up in his self-esteem that he could give no thought, and therefore no public voice, to the deaths of innocent citizens as a consequence of his own, personal denunciation of their activities--activities that are explicitly protected by the First Amendment.  Yet that is precisely the kind of president currently occupying the office that John Adams prayed would never be occupied by anything other than "honest and wise men."  (We'll overlook the sexism in that sentiment, and leave it up to Abigail's shade to straighten John's shade out.)

In a post last month, I suggested that Donald Trump might be on his way to becoming a dictator.  Well, dictators murder as a matter of course; you can't remain in absolute power unless you're willing to kill off those who rise in opposition to you.  For that reason, it might be said that the willingness to kill one's opponents--or let others do the killing for you--is the most essential trait an actual or would-be dictator must possess.

Well, as of this week, Donald Trump got there, so to speak.  We now have one more reason to think that he's on his way to being a dictator:  he's learned to kill.  Or, at least, if we are to deal in distinctions without differences, he's pretty chill with others doing it for him, once his rhetoric has opened the window of opportunity for them to do so.

Let me walk you through the steps:

In February of this year, Trump used his favorite medium, Twitter, to denounce American journalism as the "enemy of the people."  You can't dismiss this as an alternative fact; it's right here for all to see.  And it's not merely a not-nice thing to say about the press.  The phrase "enemy of the people" is a loaded piece of rhetoric with a long history of use in connection with those who opposed powerful interests willing to do anything--especially committing murder--to maintain there power.  Curiously, given the fact that Trump is nominally a Republican, the phrase has been historically a favorite of Communist rulers, especially those in the former Soviet Union.  Again, not an alternative fact.

And neither is the most tragic news of the past week:  the deaths of five reporters/editors at the Annapolis Capital-Gazette, here in Maryland.  The tragedy of gun violence on which so many journalists have reported finally, sadly, caught up with the journalists themselves.  With not a little help from the nation's highest elected official, whose rhetoric, whether we like it or not, shapes our reality by virtue of his position.

You don't think Trump isn't himself aware of this?  Why, apart from his boundless narcissism, would he be more addicted to Twitter than he is to time spent in the Oval Office?

And that's not the only means by which he betrays his awareness.

Trump, who never misses an opportunity to speak to the press he treats with open contempt, just couldn't find words to express anything about the slain Annapolis journalists.  Not sympathy, Not thoughts and prayers.  Not even a limp-wristed effort to shift the blame onto his political opponents.  Nothing, absolutely nothing (unless you count the meaningless waves).

Not even a master prevaricator like Trump can pretend that he doesn't give a damn about the professionals who give him the oxygen of free publicity.  Is it too much to hope that, in the wake of that monstrous display of public indifference toward human tragedy, the press finally starts acting like the Fourth Estate that they are supposed to be, and stop looking every morning for new and more exciting ways to give Trump a free pass on behavior that has, without a doubt, moved into the realm of the criminal.

Maybe lacking a soul is not a high crime or misdemeanor.  But the fruits of that poisonous tree surely must be counted as such.  This week produced five demonstrations of that truth.  How many more do we need before the press, the voters, and, ultimately, a Congress with a conscience, does the right thing by the Constitution and the people whose interests are protected by it?

A Few Words Of Explanation, Before June Disappears

In posting on this blog, I try to maintain a relatively steady pace of monthly postings.  In the nine-and-a-half years that I have been blogging, some months have had a steadier pace than others.  June of 2018, unfortunately, has been one of those unsteady months, due to a number of personal reasons (not all of them bad ones, but all of them time-consuming, in different ways).  Not surprisingly, the need to comment on various issues has grown exponentially along with my lack of time for doing so.  This is, after all, the Age of Trump.  And, if there is one thing about Trump on which all of us can agree, it is that he thrives on conflict, even if he has to manufacture the conflict in order to thrive.

So, put simply, there's a lot to talk about.  And, if I'm to keep on both current events and my own writer's discipline with regard to supplying a certain amount of monthly content for TRH, I've only got a handful of hours in which to do it.  Thankfully, the software on which I publish operates on Pacific time so, technically, I have a few extra hours.  And I intend to make the most of them.

So, without further ado, here goes ...