June 19, 2020--Swing Time With the Supremes

Considering recent SCOTUS decisions--for L.G.B.T.Q. job protection and saving DACA--I resubmit something I wrote and posted back in October, 2018. About how the Supreme Court might operate with Chief Justice Roberts more and more becoming the court's swing vote--


Adam Liptak, who covers the Supreme Court for the New York Times, in a postmortem after the confirmation of Brett Kavanaugh, wrote that with the departure of Justice Anthony Kennedy, the court is now left without a swing vote. Expect, he says, very conservative decisions, among others, about abortion (severely restrict or end them), affirmative action (sack it), redistricting (what states are doing is OK), and voting rights (not to worry too much about them).

While I'm not so sure Kennedy did all that much swinging, it is true that on subjects such as gay rights he usually voted with the liberal minority. Mainly, though, he joined conservatives on the court in a series of 5-4 decisions about presidential power, corporate reach, and the funding of political campaigns.

There may be, though, another way to think about this. Even with Kavanaugh seated, instead of a predictable suite of conservative 5-4 decisions, we may find a surprising number, still 5-4s, tipped in a surprisingly liberal direction. 

We could see more moderate and even occasional progressive judgements then anticipated with someone other than Kennedy or, God help us, Kavanaugh agreeing with the four-member liberal wing of the court.

I see the strong possibility that Chief Justice John Roberts may turn out to be an occasional swing vote, especially when issues are of such magnitude that he does not want his court to be perceived as acting too regressively or with too much partisanship.

Case in point, the Affordable Care Act (Obamacare) where Roberts struggled to find a way, a rationale that would work for him and allow him to vote to uphold it. Which he did. (Swingman Kennedy voted with the other three conservative judges and argued vigorously to get Roberts to join them.)

Stretching the language of the actual Obamacare legislation, he saw the individual mandate of the ACA to be funded by a tax and not by either subsides or penalties. And, thus, constitutional. A stretch but revealing--he was so eager to find the ACA upholdable that he became inventive when it came to finding a way to sustain it.

Why might that be? Judicial rationalization trumping ideology and even belief?

Because it's his court. Robert's court. Forever in history, whatever the court does or does not do, finds constitutional or lacking in precedent will be attributable to the Robert's Court.

It wasn't the Scalia Court, nor was it the Thomas Court, or for that matter the Ginsberg Court. It's the Robert's Court as it was the Warren Court, the Burger Court, and Rehnquist Court.

History-minded, as all chief justices are, Roberts may not want his court to be known ever after as heartless and insensitive to the lives of Americans and our institutions. For him to be perceived that way.

I may be indulging in wishful thinking. But, then again, let's wait and see. Stranger things have happened with the Supreme Court.

March 1, 2018--President Pence

Yesterday I began to worry about what kind of president Mike Pence will be.

Among other things what will it be like having a genuine religious fanatic in the Oval Office after the current narcissist-in-chief resigns. 

I worried that Pence may do more harm by actually being effective, with "effective" measured by what he will be able to get done by strokes of the executive-order pen as well as through legislation--enough members of Congress will be so relieved that Trump and his enablers packed up and left that they gleefully will vote to pass bills to allow prayer in schools as well as arm the teachers leading those prayers.

I know, I really do, that contemplating this is premature and overblown--I don't want to jinx it--but after eternally-loyal Hope Hicks up and quit, beaten-down Jeff Sessions hit back after Trump savaged him again on Twitter, calling it "disgraceful" that Sessions did not do enough to investigate Obama's alleged illegal surveillance of the Trump campaign and transition, feeling safe to do so because he sensed that Trump has been substantially diminished, I'm imagining Pence in charge because, in addition to the above, Jared Kushner is a politically deadman walking, and, above all else, Robert Mueller allowed the news to leak out yesterday that Trump is now officially a target of his widespread investigation--that he may be indictable for colluding with the Russians and leading the obvious obstruction of justice--for these reasons and more, time is running out for Trump, running out faster than senior staff of the White House are running out on the incredibly shrinking presidency (Kellyanne Conway is the latest from the inner circle apparently about to leave), for these reasons and more this is why I've begun to think about what a Pence presidency will look like.

To move the process along here's what I think Trump should do. My two-cents--

Surprise everyone by holding true to all the things he put on the table yesterday before congressional leaders regarding what to do to implement gun controls. Follow Dick Sports' and Walmart's example by raising to 21 the age required to buy all types of guns from 22 pistols to semi-automatic weapons; require "hard" background checks for all gun purchases, including those through gun shows; provide money to enable schools to become "hard targets"; consider limiting the sale of military-style rifles, especially to the mentally disturbed; and forget the crazy idea to arm teachers.

Work hard at this during his remaining time in office and not by tomorrow abandon the agenda to the NRA.

Then, return to the deal that a bipartisan congressional group agreed to last month that peeked Trump's interest for 48 hours before he jettisoned it and the DACA youth it was intended to legalize. It was a potential piece of legislation that had a good chance of being enacted into law. Many Republicans as well as most Democrats want to dispose of this politically toxic issue so take advantage of that. 

By doing this Trump would leave behind something of an actual legacy. Not just the obverse of everything Obama stood for and accomplished. 

Thus fortified by history, before things with Mueller get worse for Trump, as they now rapidly will, Trump should declare victory and join Omarosa, Kellyanne, Hope, and Ivanka wherever they settle. 

If Gerald Ford who succeeded Richard Nixon after he resigned the presidency claimed when he assumed the presidency that as a result "Our long national nightmare is over," Trump justly would be able to say his long nightmare is over.

Then we know what happened to Ford after he pardoned Nixon--in 1976 he lost the presidential election to Jimmy Carter. If this is a harbinger that would mean we'd have to endure President Pence for just a couple of years.

But we will be able to quote what Gerald Ford also said on the day he assumed the presidency--"Our constitution works."

January 24, 2018--Losers & Winners

For days after Congress couldn't agree to a short term budget fix, which resulted in the government going dark, and then after three days it's reopening, if you spent any time watching cable news virtually all the talk was about who won and who lost.

Was the "Schumer-Shutdown," as the Republicans derisively referred to it, evidence that Democrats in the Senate "blinked" when they realized they had overstepped when they refused to make a budget deal?

Or was President Trump the political loser (no equivalent alliterative epithet for this) when he agreed to include six years of child healthcare, CHIP funding in exchange for a three-week continuing resolution?

Losers and winners is the way so much of our public life has come to be construed. Not what gets done but who's up and, especially, who's down.

But with their reporters scurrying around the halls of Congress to take the minute-to-minute pulse--especially of the dozen or so Democratic senators who are already running for president in 2020--these news sources missed the big picture--who actually won and what it may mean going forward. May mean.

The deal finally hammered out more than anything else was the result of a bipartisan group of about two dozen senators working together 10, 12 hours a day on something they and their colleagues could live with.

They met in semi-secrecy in Maine Republican senator Susan Collin's "safe office," her "sanctuary office," talking to each other about substantive issues for the first time in their senatorial lives, some reported, largely because they felt they couldn't depend upon their leaders--Chuck Schumer and Mitch McConnell--to come up with a deal as they were so immeshed in posturing and spinning the truth before the waiting microphones and CSPAN cameras.

Many of the participants in the "gang or 25" said that they were so fed up by being excluded from the sausage-making process of crafting legislation and so disgusted by the equivocation and mixed messages emanating from the president and his White House, where many felt Trump was being "led around by the nose," as Joe Scarborough put it, by "a 32-year-old kid," presidential advisor Stephen Miller, who looks like a picture of evil right out of central casting, that they took matters into their own hands and for a change earned their $174,00-a-year salaries (which, incidentally continued during the shutdown).

Some, after the agreement was struck, said that the experience of working together across party lines to "get things done" was the reason they originally sought public office--and here's the potential big headline--that not only did they feel good about what they accomplished (though the full story about that will not be known for some weeks as the centripetal political forces struggle to reassert themselves as the 2020 campaign heats ups), they said this is how they plan to work going forward. 

They claimed they will stick together and deal themselves in when it comes to what to do about the so-called "DACA kids," hurricane disaster relief, Obamacare fixes, infrastructure, and border security. Some "big stuff."

Are we at last witnessing an outbreak of comity and moderation?

As my grandmother used to say when any of us brought a new girlfriend home to meet her and perhaps (unlikely) pass her special muster, "We'll see."

Every once in awhile she revealed that she could actually smile. That's what I am planning to hope for now--that we are at a pivotal moment and it will take hold.

We'll see.

January 12, 2018--Trump 2018 Removal Act

Earlier this week, Donald Trump flew to Nashville to visit Andrew Jackson's nearby home, the Hermitage, to honor him by, among other things, placing a wreath on his tomb.

Though Trump doesn't read and knows nothing verifiable about American history, including the American presidency, a large portrait of the 7th president is currently on prominent display in the Oval Office.

Why might that be? Not because Jackson owned about 200 slaves (though that per se would not repel Trump) but because he was the first president to be widely regarded by "ordinary" people. Trump views himself that way. There is his base that he spends all day pandering to, which was on vivid display yesterday.

It began in the morning. The House of Representatives was scheduled to vote on an extension of the FISA act, legislation that was first approved in 1978 to allow intelligence-gathering agencies to spy on foreign nationals as well as American citizens who might represent terrorist threats. 

Libertarians such as Senator Rand Paul had proposed an amendment that would require that a FISA court, more than at present, be required to authorize in advance any domestic spying.

Paul was on Morning Joe a few hours before the vote, seemingly to explain his amendment but, as it turned out, to seek and secure Trump's support. Seemingly as a non sequitur, unprompted, he went into a passionate attack on the FBI who, he falsely claimed, was working to "bring down" the president.

When I wondered out loud why the senator switched subjects, Rona patted me on the arm and as if to humor me and with a sigh, said, "Of course to suck up to Trump in order to secure his support."

"Rand Paul?" I asked, still naively, "The same person Trump mocked and destroyed during the 2016 Republican primary season?"

Rona just looked over at me as if I were born yesterday.

Needless to say, waffling back and forth all day, Trump came down to oppose the Paul amendment after an hour earlier endorsing it.

So much for attempting to suck up to and relate transactually to our president.

More of Trump playing to his base was on disgraceful display later in the day.

At a bipartisan meeting in the Oval Office about legislation that would provide some additional support for the Wall along the border with Mexico in trade for Congress's approval for a path to citizenship for 800,000 stateless DACA young people, Trump met with six congressional leaders, seemingly to wrap up final details.

Appearing to be unmotivated, almost like a non sequitur of his own, Trump began to ruminate about immigration writ larger, asking why we accept immigrants and refugees from places such as Haiti, El Salvador, and Africa. 

From "shithole countries" like these.

After this outrageousness, Republicans offered their usual tepid response, mainly mild forms of faux incredulity (they too worry about the power of Trump's base--perhaps 30 percent of America's adults) while most others expressed genuine outrage.

Has Trump finally crossed the line that many of us have been waiting for for more than two years, a line that will finally bring him down? 

Even in my hopeful naïvety, I was skeptical. Trump critics were not surprised by his ignorance and racism. We have come to expect it and have been rendered exhausted by it. Perhaps even inured.  

As someone yesterday evening was quoted as saying, it was another example of Trump seeking to "make America white again."

That caused me to think more about Trump's visit to Andrew Jackson's home and grave. 

Among other disturbing things that Jackson was responsible for was the infamous Indian Removal Act of 1830 that required native people, to leave our then western territories and relocate west of the Mississippi. Some tribes did so "voluntarily," others needed to be "removed" forcefully along the Trail of Tears.

This is what Trump is up to and why he admires Jackson so much--Trump too wants to see the removal of millions of Americans along a contemporary trail of tears. El Saladorians back to El Salvador, Hatians back to their island, Africans back to Africa, Muslims back to their countries.

One thing they have in common--they are all people of color. "What can't we admit more Norwegians, white-supremacist Trump opined wistfully.

If he didn't cross the line yesterday maybe he inched closer to it. Mueller is thankfully lurking while cravenly GOP members in Congress aren't.

January 11, 2018--In A Matter of Minutes

After three excruciating hours of trying to stay awake during the Golden Globes--the pervasive feeling of self-congratulations exhausting my willingness or ability to endure--suddenly on screen there was Oprah! 

She was wearing serious eyeglasses so I assumed we were in for a treat. She wasn't about to announce cars for everyone but something better: Hope.

An immediate feeling of hope that she was not running for president but was about to be inaugurated and thereby release us from our long national nightmare.

Immediately, except for the Fox News channel, all of media lit up. They were already talking about what a Trump-Oprah contest would look like and, since they assumed Oprah would win, who she would name to key positions in her administration.  

Forget getting down to measuring the drapes in the Oval Office, would Dr. Oz become Surgeon General? What about Dr. Phil and best friend Gayle King? A new cabinet position, Secretary of Mental Health, for the doctor and maybe chief of staff for her pal? What about Stedman? First Escort?

These feelings of deliverance persist so I should try to calm down and take this seriously. Unlike Trump Ms. Winfrey is an accomplished and self-made billionaire. A real billionaire. And she could have the right personal qualities to be a healing president. Most important, she could actually win. Which, considering the alternative, is a very big deal. During her presidency I could hold my nose for all the self-esteem building preaching. Over my political lifetime I've held my nose for a lot worse.

It took all of eight minutes for this wave of enthusiasm to build during an otherwise dreary awards show. Going viral doesn't begin to tell the story. We almost elected a president in those few minutes.

Then on Tuesday, on live TV, direct from the Cabinet Room in the White House, there was that bipartisan 55-minute meeting about immigration President Trump held with Republican and Democratic members of Congress. 

During meetings of this kind the press is usually allowed to be in the room for a few minutes of innocuous schmoozing. They are then dismissed and the meeting occurs behind closed doors. Tuesday was different.

The purpose of allowing the press to send out a video feed of the meeting was not to showcase transparency but to allow the country and world to see that Trump was in control of his mental faculties. That he was capable of acting like an adult--in this case talking and listening--not the nine-year-old he was represented as being in Michael Wolff's new book, Fire and Fury. With Trump embodying both the fury and the fire.

The subject was DACA, the move to allow a path to citizenship for the 800,000 young people who, through no fault of their own, were brought to America illegally. This should not be too controversial an issue since many Republicans in Congress favor it. Nonetheless, most of the GOP base of voters resist agreeing to even this commonsensical compromise. So it was actually refreshing to see Trump, who has demagogued the subject of "illegals," mostly coherent and seemingly on board for a quick and just fix. 

And, beyond that, more surprisingly, Trump, who wants to build the Wall and deport pretty much anyone here either illegally or without having undergone what he calls "extreme vetting," Trump appeared open to an even more ambitious solution to the problem--a possible path to legal status for all10 million illegal residents. He spoke about "taking the heat," the political heat for such a tricky issue.

Was this simply telling whoever's in the room what he thinks they want to hear? Perhaps. But, then, maybe not, since a version of amnesty is not any Republican's favorite subject.

So, what's going on with this?

It could be that the "liberal," New-York Trump some people thought they were electing has finally appeared. Perhaps made easier for him with the decline and fall of his Svengali, Steve Bannon. If so, for moderates of all persuasions, this could be a rare dose of good news.

Minimally, he once again managed to change the subject when seemingly cornered--no one was talking about the Wolff book, most of the chatter about the dossier and Mueller was on the back burner, he dispelled some of the talk about the need to get ready to roll out the 25th Amendment, and even Oprah was pushed from the headlines. Minimally, as a tactic, this performance was politically adept. 

Rona suggested that perhaps Trump was able to put on such a good show because he was on camera. His favorite place to be. 

If so, let's set up cameras in the Oval Office, Cabinet Room, and in the room in the residence where he watches TV. In other words, have him on camera 24/7.

The first year of his presidency, or in TV terms, the first season, which ends in 10 days has been Steve Bannon & Friends. This coming season, let's hope it will be Oprah.