To Pack, Or Not To Pack?

The confirmation process is now over.  A Supreme Court Justice who pioneered in the evolution of gender jurisprudence has now been officially replaced on the Court by a "handmaiden" who seems poised to turn back that evolution to a point preceding the Stone Age--if this is any indication, anyway.

A brilliant scholar and thinker has been replaced by someone who, in her confirmation hearings, struggled to give evasive answers to legal questions with obviously transparent answers.

A pillar of nonpartisan, independent integrity has been replaced by a right-wing apparatchik who is fully prepared to help subvert the rule of law to abet the unlawful efforts of Donald Trump to keep a job he never should have had, and does not deserve--but which he is prepared to do anything he can to keep.

Where does that leave the current position of the Court in our constitutional order, and the people's perception of it?  For that, I need only direct you to this op-ed piece in the New York Times, written by two former law clerks of now-retired Justice Anthony Kennedy.  The authors self-identify as "liberals."  But they were employed by a Justice who was appointed to the Court by Ronald Reagan, during an election year, and confirmed by a Democratic-led Senate.  That should tell you how far the institutional integrity of the Court has slid in the past three decades, especially with Mitch McCONnell's foot on the accelerator.

Oh and, by the way, where were the Democrats in the middle of all of this?  Where, all too often, they usually are:  all over the place.  True, some of them asked tough questions, and Sheldon Whitehouse of Rhode Island gets special mention for grease-boarding the sordid history of dark money in conservative Court-packing efforts (a history that is even more sordid than we thought).  On the other hand, we were also treated to this:  proof that the senior Senator from California doesn't understand that true greatness is knowing when to get off.  As if this wasn't bad enough.

True also, they did boycott the Judiciary Committee vote to send the nomination to the Senate floor, in an attempt to stop the vote by creating the absence of a quorum.  But guess what?  The Republicans voted to send the nomination along anyway.  Fighting by the rules means nothing if the other side sheds the rulebook.

Do the Democrats finally get it?  Do they understand that they have been, whether they like it or not, engaged in war by other means, and that their lack of an appetite for combat has made it an asymmetric war, one in which their mounting losses threaten not just them, but all of us?

I wish I could say that the answer is "yes."  But I'm not sure.  And a big chunk of that uncertainly stems from the fact that even I'm not sure what they should do at this point.

The most-discussed potential remedy takes a page out of Franklin D. Roosevelt's playbook:  packing the court with progressive justices to undo the chicanery that McCONnell and his crony colleagues have engaged in over the past four-plus years.  Even moderate Democrats like Chris Coons seem to be sold on the idea.

Me?  I'm kind of agnostic on the idea.  That's at least in part because the idea polls poorly, which is why I think Joe Biden was smart to kick the proverbial can by announcing that he would, if elected President, appoint a commission to study reforming the federal judiciary.  But it's also because I see it becoming a bottomless pit of retaliation, with successive Congresses of each party adding justices until the roster of the Supreme Court has more members than Congress.

Don't get me wrong:  I'm not advocating doing nothing.  Far from it, as you'll see if you'll read further.  But we have to do something that makes sense, in both the short and long run.  The Republicans have made the Court a vehicle for the promotion of raw power.  Our response to that has to be as raw and as powerful as the steps they’ve taken.  Let's start with their favorite subject:  money.

Constitutionally, the Justice's salaries are guaranteed to them.  Fair enough.  But everything else?  Their building?  Their staff?  The various services related to the functioning of the Court?  Well, that's under the control of the political branches.  It might be useful for a Democratic Congress and President to, ahem, remind the constitutionally-salaried Justices of that fact.  It might be prudent for the political branches to ask whether, in a fiscally and pandemically troubled time, whether the Court's work is giving the Constitution, and the general welfare of the people that the Constitution is designed to promote, whether the Court is giving the people the best bang for the buck.  I'm not advocating bribery, but it's completely fair for Congress to use the power of the purse to keep the Court from going too far off the grid of our basic law and the intentions (yes, the original ones) that lie behind it.

Is that too edgy for you?  Well, maybe it is.  I'm not insisting on it, any more than I'm insisting on or forbidding the adding of Justices to the Court.  How about this:  we subject the Justices to the same canons of ethics, including rules on recusals, with which every other judge (and attorney, myself included) must comply.  Right now, whether you can believe it or not, the Court's Justices are not bound by any ethics code.  Liberal or conservative, they all should be.

And any code to which they are bound must not only specifically reference the power of Congress to impeach federal judicial officers, but provide for the power of Congress to enforce changes in the Court's rulings that are flatly wrong as a matter of law or fact.  This would prevent obviously corrupt actors like Brett Kavanaugh, who seems disposed to both sloppy, unfactual reasoning and extra-constitutional results, from doing consequential damage to the rule of law.  And avoid battles between the Court and various third parties such as this.  As things stand now, all three Trump-appointed Justices are in a position to help him stay in office by way of specious, post-election litigation.  Ethics code or now, if they do not recuse themselves from the consideration of such litigation, they should be impeached.  Full stop.

But, maybe, just maybe, this is all premature.  Maybe we can fall back on the old saw that the Supreme Court follows the election returns, and that a big blue wave might throw cold water on many of the current Court's jurisprudential fantasies.  Maybe this is an indication that the potential for that to happen is in fact there.  Maybe we can take comfort from the wisdom of think pieces like this one.

The truth is, I'm not sure what we should do.  I'm only convinced that we need to do something.

And we need to do this above all:

VOTE!

And no, this is not my last pre-election post.  I'll have more to say tomorrow.  Stay tuned, as we used to say in broadcast media.  Or, as Rachel Maddow would say, watch this space.

The Real Third Way In America

Are we poised, nine days out, to make a difference?  Are we ready for truth, justice, and the American way to begin the process of reclaiming the United States of America, and all of the things that it has historically stood for?  If I were answering that question based solely on the polls, I would be strongly inclined to say "yes."

But, sometimes, I wonder.  And coming across a story like this one certainly doesn't help.

I have long grown weary of these so-called essays that show up periodically in mainstream media, the ones in which a reporter goes off in search of the mythological "typical" American small town, far away from the "elite" coasts, where simple people leading ordinary lives, sitting around diners (and, yes, it's almost always diners, or the mall) opine about the state of America, or what they imagine America to be outside of their fifty-mile-radius view of it, or why their formerly idyllic life is no longer idyllic since everyone's move away from it.  

Almost all of the people being interviewed are white.  Almost all of the people doing the interviewing are white.  The results, at least to me, seem to be largely examples of confirmation bias that is designed to support racial bias.  If white people determined to live exclusively among white people are unhappy with the state of the world, than the world surely must be in fact going to hell in the proverbial hand-basket.  And, if a white reporter is doing the listening and the writing, well, who are they to challenge the views of interviewees willing to dump an easy-to-write, easy-to-publish story.

Nowhere in any of these stories will you find any meaningful, critical examination of why these formerly thriving towns are no longer thriving.  The unwillingness to deal with a changing world.  The unwillingness to accept the arrival of people who wear a different complexion, or speak a different language.  The adoption of politics that fail to trickle down prosperity, and instead shovel the fruits of their labors upward to the very "elites" these folks despise so much.  The unwillingness to see the consequences of those politics, and to change them.  And, finally, the unwillingness to see why this causes so many people to move out, to cluster among the coasts (where the money's gone, that is) in search of a better life.

It's precisely the isolation from large numbers of people, with a real variety of perspectives and life lessons, that encourage the extreme, and frankly insane, views that then end up spread on the Internet and Fox News.  Isolation breeds ignorance, ignorance breeds rumors, and, the more wild and entertaining the rumors, the more likely they are to be believed by people who, thanks to the decline in our system of education, lack a foundation for challenging them.

And challenging such rumors and fantasies should be one of the most important missions of the media, and is one important reason why there is a First Amendment in the first place.  Once upon a time, media outlets would produce these essays, giving their audiences the unvarnished, often ugly views that many places in the interior of our nation harbor.  But they would challenge those views, and the people who hold them, in a way that no longer happens.  This is in no small part because of decades of screaming by right-wing apparatchiks about "liberal media bias."  As if those doing the screaming were really concerned with what the mandate of the press should be in a democracy:  telling the truth.

But the mainstream media no longer challenges fantasies and rumors.  It goes out of the way to confirm them.  Consider the moment in the Time magazine story linked above when the reporter, challenged by an interviewee about the fact that she was wearing a mask, lowered it to her chin.  To "appease" him.

To appease him?

The purpose of wearing a mask in the current crisis isn't to create an exercise in virtue-signaling.  It's not to identify one's partisan politics.  It's not meant to anger anyone.  It's meant to save lives, regardless of the politics practiced in those lives.  How many times does it have to be said:  the virus can kill you, and can go anywhere to do it, and doesn't care about anybody's politics?  It's a virus.  It has the same imperative to live that anything else does.  And its mission is to kill you, whether you take it seriously or not.

Too many of us on the blue side of our philosophical divide have forgotten how to fight.  Or worse, they have become too afraid to fight.  They view modern life as a negotiation, a process by which one can only run away from danger, or find a way to pargain with it.

Well, there is in fact a third way.

Fight it.  And defeat.

That's what I'm aiming to do on November 3.  And I hope and pray, wherever you are, that you'll join me.

Despair, Or Defiance--And Does It Matter?

Not long ago, I heard a pollster describe Donald Trump as "the ultimate high-floor, low-ceiling candidate."  It was a professional's way of acknowledging a peculiar fact about Trump's support as measured statistically.  At his very best in this regard, his high point was probably on election night 2016, when he gained 46% of the popular vote--or, as I would characterized it, Michael Dukakis territory.  Lately, after four years of deception and malfeasance, including an impeachment trial with an outcome that his party rigged for him, and with a strong opponent in his race for re-election, Trump is doing not much better than 40% when it comes to popular opinion.  Allowing for a typical statistical margin of error around 3%, that suggests that 3% also defines the limits of Trump's ability to manipulate what people think about him.  

On the other hand, to be perfectly fair, it also defines the limits of what Trump's opponents can do to undermine what people think about him.  And this, mind you, despite a trail of nakedly corrupt behavior that one would think would reduce his public support, at the very least, to the level at which Richard Nixon found himself post-resignation:  around 25%.  Yet there he is, only about 6% below his peak.

Why?

I have believed for a long time that the key to his popularity can be found in Trump's own world view, which, despite his rhetorical preference for puffery, prevarication, and flat-out lying when discussing his self-perceived "greatness," is in fact deeply nihilistic.  He's said more than once that life isn't worth living, since it ends in death, and the only thing worth doing with life is to tear it all down as you make your trip to the boneyard.  Whatever else one can say (none of it good) about that point of view, it's certainly reflects the manner and extent to which he's failed to do his job.

And the 46% to 40% of the people who follow him?  I think they're every bit as nihilistic as he is.  They don't like the world as it is, one that is no longer structured to favor white men supporting themselves in union-guaranteed jobs.  They lack the ambition or vision--or both--to imagine the possibility that they have the power to change, to find the possibilities that might (and do) actually exist in the post-industrial world.  They are, the inheritors of the post-war prosperity, frankly too spoiled, despite their poverty, too ignorant and immature to take whatever spare money they have and spend it on something other than build an arsenal worthy of a small army--say, retraining for a new career, or moving someplace where there are jobs that they could do.

Yep.  Why try to make live better, when you've got Trump to tell you that it's better to just blow it all up, and take all of the people you hate with you.  They're going to Hell, and you're going to Heaven.  Right?

It doesn't make sense to me.  But it makes sense to them.

Does this point of view seem harsh to you?  Well, tell that to Virginia Heffernan, formerly of the New York Times, and currently of the Los Angeles Times.  She seems to be on the same page with me.

I have to admit, however, that my wife has a slightly different point of view.  She thinks that Trump supporters are motivated not by despair, but by arrogance.  Whether from whiteness, or from religion, they think that they're bullet-proof, because they think Trump is bullet-proof.  They really think that COVID precautions are for losers.  They not only think that they're not going to die, so long as they blindly follow Trump off of whatever cliff he's leaping on any given day, but that the rest of us won't die if we fail to support them in jumping.

Who's right?

Does it matter?

One way or the other, if we all end up going off the cliff, whether we choose to or are dragged there by the political power Trump is able to extract from his 40%-to-46%, it may not.

And so, once again, with 16 days to go:

VOTE!

No, We're NOT Safe After November 3

When a political party controls the Presidency and at least one house of Congress, the surest sign that it is about to lose the former is when it starts talking primarily about the need to preserve "checks and balances" by telling voters to keep it in charge of the latter.  So, for those of us who are worried about Joe Biden's chances of evicting Donald Trump from the House of Plague, formerly known as the White House, it may supply some real measure of reassurance beyond poll results to know that the money interests that govern the Republican Party (and thus, the rest of us for the past four decades) are beginning to bail on the Orange Iguana in favor of supporting Mitch McMumbles and his Keystone Kops.

But, in this case, we may have one other sure indication that it's over for Trump:  Trump himself, who's had a pretty bad week, culminating in a two hour radio pity-party hosted by Rush Limbaugh.  Limbaugh and his guest of honor spent that time about how, despite their mutually undeserved share of good fortune in life, that life had actually been unfair to both of them, a message that listeners both agreed with and empathized with.  This is not the message of someone who wants to be seen as acting like a winner, anymore than this is.  Or this.  For that matter, this.  And especially this.

Trump, it seems, has given up.

Or has he?

Let's go back to his Limbaugh performance for a minute.

Trump didn't appear on Limbaugh's show by accident.  He's curried favor with the broadcast blowhard for a long time, even before he forever tarnished the Medal of Freedom by awarding it to Limbaugh.  That's because Limbaugh's listeners are partners with Trump (and Limbaugh, for that matter) in grievance.  Not when it comes to a lack of material success.  Rather, when it comes to the one thing that links McCONnell's donors and Limbaugh's audience:  the decline and fall (in slow-motion) of white privilege.

As long as Trump can feed the racist fires of his base, he's got a way of maintaining power, and thereby finding a way out of the post-presidential legal and financial troubles that now seem likely to dog him once he leaves the White House.  But keep in mind:  even if he does lose the election, he will have eleven weeks of access to the powers of the most powerful office in the world.  Who knows if he wouldn't sell state secrets to pay his bills?  Who knows if he wouldn't try to swing a plea bargain by launching a nuclear war?

And who knows if he won't try to hide his complicity in stirring so-called "militias" to the point at which they would deliberately go beyond circumventing constitutional government to almost reach the point of attempted murder?   A tweet (now deleted) on Twitter earlier stated that Trump was attempting to delete his earlier attacks on Gretchen Whitmer.  Whether or not he's succeeded in doing so is not the point.  The fact that Trump has groups like this at his beck and call for is purposes is, because they will be around long after Joe Biden is sitting in the Oval Office.  (And, in any case, can we finally stop pretending these groups are the "well-regulated" fighting forces referred to in the text of the Second Amendment, and use the power of the national government to put them out of business?)

And Trump will still have at his beck and call, for the most part, a Republican Party that has devolved from being a political party to being a crime syndicate.  And, finally, an enemy of democracy.  That's not an exaggeration.  Take Utah's Senator Mike Lee's word for it.

One way or another, even out of office, Trump, his family, and his followers are not going anywhere, his followers in particular.  Over the past four years, they've had a taste of real power that's not leaving their mouths.  And Trump will still be around to feed it, perhaps to the point of launching large-scale violence.  And Trump has, over the past four years, repeatedly shown us something about himself that we fail to believe at our peril:  when it comes to protecting his interests, there are no limits.

We're not safe after November 3, no matter what, folks.  If we get a Democratic blowout on that day, rejoice.  You've earned the right to do it.

But keep your power dry.  They surely will.

The Super-Spreader President and Senate

One of the minor problems of blogging in the age of Trump is simply keeping up with his perfidy and all of the manifold ways in which it is unleashed upon the rest of us.  This week has been no exception.  In fact, if you are inclined to think that this week has been the ultimate example of this problem, I'm happy to chime in on your behalf.

As I type this, I am watching MSNBC's coverage of Trump walking slowly and uncertainly from Walter Reed Medical Center into his limousine and the trip back to the White House, having, perhaps, made a successful recovery from infection with the COVID-19 virus.

If, that is, he has truly recovered, and not overruled the best advice from some of the best physicians in the nation.

If, for that matter, he has even needed to recover from an actual infection, rather than needing an elaborate public relations stunt to take public attention away from the most disastrous presidential debate performance in the history of the Republic, a performance that has allowed his Democratic opponent to open up a double-digit lead in the polls.  We are being told that he will still be treated as a patient even while being back in the White House, confined to quarters, and kept apart from a West Wing staff that itself has been decimated by COVID-19.  Those infections, I do not doubt, are real; I understand that at least some staff members are now working remotely, if they are able to work at all.

But Trump himself?  Who knows?

This is the fundamental problem with Donald Trump in the role of a public servant.  He has no sense of obligation to anyone but himself, and therefore no commitment to share 100% of the truth, even the portions of it that might harm his personal interests.  This is absolutely, positively not about my distaste for him as a Republican, or as a conservative.  Cards on the table:  I don't think that, on a fundamental level, Trump is either of those things, or anything except an utterly self-absorbed excuse for a human being.  Such an individual should not even be president of a washroom, let alone of the United States.  When Ronald Reagan, or George W. Bush, were hospitalized and temporarily transferred their powers to their Vice Presidents, I had no doubt that they needed medical treatment, and no reason to doubt that their doctors were telling us what we needed to know.  And, I hasten to add, no reason not to wish them speedy and complete recoveries.

But we're in a totally different universe here, folks, when it comes to reality and the extent to which we can feel we know what we need to know.

This much we do know, starting with a week ago last Saturday:

Many of the people assembled in the Rose Garden for the announcement of Amy Comey Barrett's nomination to the Supreme Court are now COVID-19 positive.

Trump, according to his own doctors, was COVID-19 positive as of the time of that announcement, and attended his Monday debate with Joe Biden unmasked (with an equally unmasked family in the audience), and told no one, including Biden and his family.

Trump then went to a rally in Minnesota, unmasked, with a huge and largely unmasked crowd.  We, the American people who deserve to know everything about the President's health, only learned thereafter that he and the First Lady were COVID-19 positive, but were assured that we had nothing to worry about, despite the fact that we the American people, were the last to know.

Shortly after getting this cherry reassurance, we were told that Trump was on his way to Walter Reed, where he received the very best care by way of what can only be described as socialized medicine, despite the fact that he has been exposed by the New York Times as an epic tax scofflaw, and despite the fact that, if Barrett does make it to the Court, 20 million Americans will lose their health care coverage if she assists the other Republican Justices in destroying the Affordable Care Act.

Oh, and, by the way, about her nomination:  despite the fact that three Republican Senators were infected at that Rose Garden ceremony, and may not be able to participate in the confirmation process (and thus deprive her of votes she will need to be confirmed) and despite the fact that the Senate needs to take up the pandemic relief legislation that the Democratic House has passed (twice), Mitch McCONnell and most of the rest of the corrupt Republican Senate caucus are focused on what they consider the all-important need of turning the 5-4 Republican majority on the Court into a 6-3 majority.  Desperate is the polite word for this conduct; craven and corrupt work much better.

All in all, just another week in the life on the most criminal President in over 200 years of American history, and the Senate that stands behind him, no matter how much the truth betrays the true nature of their character, or lack of it.

Frankly, I've had a very hard time processing all of this, much less writing about it.  Summing it up isn't much easier.  I'll give this a try.

If Donald Trump's doctors are to be believed (and I give them the benefit of the doubt), then Donald Trump is a super-spreader President.  And the majority of the United States Senate are his accomplices.

Let that sink in.  And let it make you fight like hell to stop them.