September 19, 2020--What Was She Thinking?

What was she thinking? 

I think I know. Though one is not supposed to speak ill of the departed, what was Ruth Bader Ginsberg thinking? 

That Hillary Clinton would become president and Justice Ginsberg would then resign to allow the first female president to select her successor. 

Just as historically the Supreme Court had a "Jewish seat," this would create a "women 's seat."

How's that strategy working out?

Since Mitch McConnell will ram though an appointment before January 1st to assure he'll still have 51 votes even if the Dems flip three to four Senate seats, by the new year we could have Ted Cuz plopped in a lifetime seat on the highest court in the land.

I'm not making this up. About Cruz. He is already on a very short list of possible replacements for RBG.

So Ginsberg's legacy may include that her selfishness will mean Roe v Wade will be overturned.

July 14, 2020--Seven to Two

The first wave of phone calls, texts, and emails I received right after the Supreme Court late last week ruled that even the president is not above the law, that he must respond to subpoenas, and can be held accountable for any felonious activities in which he may have been involved, all the people I heard from were ecstatic, many claiming this would finally assure Trump's downfall.

A few hours later, after everyone had their fill of watching events unfold on CNN and MSNBC (Fox News devoted little programming time to cover this historic ruling) the tone of those who stayed in touch with me changed. 

Where earlier there had been euphoria I sensed the beginning of frustration.

"What's going on with you?" I asked a friend who just hours before had been the most enthusiastic, "I thought you were on happy pills. Now you sound as if you're headed for deep despair?"

In a flat voice she said, "Since we spoke I've been listening to cable news and everyone, their legal experts especially, say none of Trump's tax documents will be available to the public before Election Day. He and his henchmen will be able to run out the clock. The political effect will be nonexistent. I'm turning off the TV or will look for an episode of Friends to lose myself in."

"Before you pack it in," I said, "Be sure you're keeping your eye on the prize."

"What's that?" she said.

"The big picture," I said, "The historic nature of the Court's ruling. People will read about this 100 years from now. Just as we think about and read about Supreme Court decisions during the Watergate era. Like the Supreme Court ruling that Nixon was not above the law and thus needed to turn over to prosecutors the tapes he made while in the Oval Office."

I continued, now feeling euphoric myself, "Remember how through the seemingly endless years of the Trump administration we said that the most important checks-and-balances guard rail would turn out to be our justice system? That ultimately all the big questions would be resolved by the federal courts? Particularly as with Nixon and Clinton, who while still president was required by the Supreme Court to testify under oath, we speculated that soon equivalent matters would find their way to the highest court for resolution. Well, that's where we are now--the most important issues are being dealt with by the Supremes and, based on their rulings thus far, there are reasons to believe that Trump will eventually be bought before the bar of justice. Since, though he is president, he is still, according to the Constitution, just a citizen."

"I see your point," my friend said, "It is all about the precedents. The reassertion that even with an authoritarian like Trump the law will eventually find him and hold him accountable."

"That's the hope," I said. "Though I'll acknowledge there's still a ways to go. But we're finally heading in a good direction. And, by the way, the fact that the vote was 7 to 2, with Trump's two judges voting with the majority, suggests there may be a lot to feel good about."

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.

May 17, 2019--The Surprising Supremes

The struggle between the Trump White House and the Democrats in the House of Representatives is heating up. 

Congress is attempting to do its constitutionally mandated oversight work. They want access, for example, to the full Mueller report; they are also subpoenaing Trump's tax records; and they want to gather direct testimony from Mueller and, along the way, to have Donald Jr. testify about Russian interference in the 2016 election.

Trump is stonewalling everything, claiming executive privilege.

None of this will be resolved as it usually is by negotiations. There is too much bad blood for that and Trump knows how devastating it would be for him if the truth were exposed. 

It will then for certain take months or years for these disputes to be adjudicated by the Supreme Court.

Meanwhile, at the state level, Alabama just passed legislation to eliminate abortions under virtually all circumstances. Including if a women becomes pregnant as the result of rape or insist. This piece of legislation was not designed to be implemented but rather was carefully crafted to reach the Supreme Court and give the now conservative court the opportunity to consider overturning Roe v. Wade and thereby making abortion illegal in all 50 states.

Conservatives feel that with a majority of the nine members of the current court named by Republican presidents (Thomas by George H.W. Bush; Roberts and Alito by George W. Bush; and Gorsuch and Kavanaugh by Trump) Roe v. Wade is threatened as are affirmative action and all forms of support for voting rights. 

But maybe for conservatives it is too soon to celebrate.  

It is by no means certain that Roe and other examples of progressive Supreme Court decisions are doomed. They are seriously threatened, but it is not yet clear they will be overturned. 

Recall that Chief Justice Roberts joined the four liberal justices to uphold Obamacare. I speculated at the time and subsequently that Roberts, perhaps feeling everything that is decided on his watch will be attributed to the "Roberts'" Court, perhaps concerned about how he would be regarded by historians, he abandoned his up-to-then predictable conservative voting record and joined the four liberals to sustain a program that provides medical coverage for 20 million Americans. He did not want to see the Affordable Care Act shredded while he was serving as Chief Justice. He therefore contorted himself and found a way to support it.

But here's the real surprise--the voting pattern of the most recent member of the court: Brett Kavanaugh.

Recall, he is the justice who was accused of sexual harassment and confessed during his conformation hearing that he had a drinking problem. He testified rapturously about how he "loves beer." So much so that he repeated it half a dozen times. 

Did anyone after this and looking at his judicial record think he would even one time vote with the liberal block?

Well, he has been. In fact, he has voted with the liberals more often than any other justice.

In recent months, for example, he voted with Ginsberg and Sotomayor on the death penalty and criminal defendants' rights. In both instances not agreeing with Trump's other appointee, Neil Gorsuch and the other conservatives.

It is premature to speculate how he might vote when it comes to disputes about Trump's claims about executive power. 

There have been more than a few surprises when it comes to justices voting contrary to what one would have expected. There were numerous times when Franklin Roosevelt appointees voted against New Deal legislation and Byron (Whizzer) White, named by Kennedy, turned out to be more a conservative than a liberal. And then there was David Souter, protected by lifetime tenure, who was appointed by George H.W. Bush but turned out, once on the court, to be dependably liberal.

So, keep an eye on Kavanaugh. Along with Roberts he may turn out to be unpredictable. He too may have an eye on history.

April 29, 2019--Biden Steps In It

Joe Biden for me is the Democrat most likely to be able to defeat Trump in 2020. Perhaps the only Democrat. 

His announcement Thursday began well with a three minute video posted on line where Biden, announcing his candidacy, powerfully and persuasively said that at stake in 2020 is a struggle for nothing less than the "soul of the nation." And by not-so-subtle implication demonstrated he is best positioned to take on Trump on that issue and win.

But later in the day, without prompting, he revealed he had called Anita Hill to express regret about the way the confirmation hearings he chaired had gone when Clarence Thomas was being considered for a seat on the Supreme Court. He acknowledged that the conversation with her hadn't gone well. 

He really needed to call Anita Hill a couple of weeks ago to, sort of, apologize, after 28 years of silence and inform the public about it on the day he launched his campaign? 

Not that she doesn't deserve an apology for what he, in 1991, as chair of the Senate Judiciary Committee that was conducting confirmation hearings for Supreme Court nominee Clarence Thomas allowed his colleague senators to get away with as they trashed her credibility and personal reputation. 

It was one African-American women facing 15 white men, who, among other things, mocked her.  She had stepped forward to courageously accuse Thomas of sexually harassing her when he was her supervisor at the Equal Employment Opportunity Commission.

The way Biden allowed her to be mistreated is the worst blot on his record so it is understandable that, as he considered running for the third time for president, he would be thinking about how this would play out for him politically. Perhaps, too, he was thinking about an inner need to try to make heart-felt amends.

He knew it would be perilous to begin his campaign with an "apology tour" that would inevitably be more than about the Thomas hearings--it would also include needing to explain away his support for increasing the mandatory jail time for drug dealers and, more disturbing, why he voted to endorse the wars in Afghanistan and Iraq.

Republicans love beating up on what they perceive to be wimpy liberals' alleged inability to be tough. Apologizing, therefore, is about as bad a thing a Democrat aspiring to be commander-in-chief can do. Girls apologize, real men plow ahead.

So what was Joe up to?

Whatever the range of his intentions and feelings about calling Anita Hill they must have included the hope that she would grant him absolution and, as a result, his problems with women who have long memories about his chauvinism would be one troubling thing he would no longer have to worry about in the middle of the night when he and his goblins are churning.

So what did he wind up with as a result of misunderstanding, miscalculating the depth of Anita Hill's residual issues and feelings? 

Did he think she would casually put aside the meaning of the defining moment of her life to throw him a cheap lifeline? This should have been an easy one--if he were serious, she said, he should have expressed more than "regret" for "what she endured."

What he tried to get away with is the classic non-apology apology. Not that he was sorry for his behavior. Instead he said that he was sorry she felt that way. Putting it off on her while taking responsibility only for how he made her feel. She told him this and refused to say never mind. The time for that for women is over.

So on this special day for Biden, he made one of his famous gaffs. Quite a big one. Friday's New York Times had his announcement as its front page lead--"Biden Joins Race, Invoking Battle for Nation's Soul." But abutting it, stepping all over his launch, was the story, "Biden's 'Regret' for Hill's Pain Fails to Soothe."

None of this is fatal, but being clueless on his first day suggests not just insensitivity but poor strategic thinking. 

More of this kind of behavior, though, could leave moderate Democrats and Independents bereft.

December 31, 2018--New Year Nightmare

On Sunday Rudy said that it's time for Mueller "to put up or shut up."

He went on to say that there is no credible evidence that Trump or any of his people knowingly colluded with the Russians. And, by the way he reminded us, collusion is not a crime. So, again, put up or shut up.

My snappy first reaction was that the person who should be doing the shutting up is Rudy himself . . . and his client.

My second reaction, my nightmare is--what happens if Giuliani turns out to be right??

We thus far have little direct evidence from the Mueller investigation. Even the most liberal, anti-Trump commentators acknowledge this. They do point out, though, that the dozens of indictments, guilty pleas, and jailings speak for themselves--there is something very rotten in Trumpworld. There is both fire and smoke.

But, I am feeling forced to consider, isn't it responsible to consider the possibility that Mueller may not have enough to force a Trump resignation or a congressional impeachment?

I haven't been sleeping well lately and my exhaustion may be overwhelming my ability to reason, but . . .

So I took a long nap and awoke from it calmed down and thinking more clearly.

Putting together all the evidence we in fact have there is a strong case to be made that not only was there collusion (admittedly not a federal crime) but a felonious conspiracy to work with the Russians to rig the 2016 election and enough felonious obstruction of justice to impeach Trump and indict him even while he is in office. 

(The Justice Department finding that sitting presidents cannot be indicted has never been litigated by the Supreme Court, so if Mueller, as I suspect he will, wants to take that step even this current Supreme Court--with Roberts as the potential swing vote--might very well allow that. "No one is above the law" is carved in precedent as well as in the very Vermont-quarried marble of the Supreme Court building itself.)

I suspect that Mueller will "put up" early in the new year and that Trump minimally, like Nixon, will be cited as an unindicted co-conspirator

Yet then . . .

December 26, 2018--Swing Vote

Occasionally, one of my predictions comes true. For example, my suggesting in early October that with swing man Anthony Kennedy no longer on the Supreme Court Chief Justice John Roberts would assume that role.

I noted that Supreme Courts are referred to by historians after whomever is the Chief. Thus there is the Warren Court and the Rehnquist Court and the Berger Court or, for that matter, the John Marshall Court.

Knowing this, I wondered, with Trump appointing far-right judges, how the current Chief Justice, John Roberts, was feeling about his name being associated with a court that has descended into full-bore partisanship. 

It appears that he is now thinking that unless he becomes the swing vote, replacing Kennedy, the Roberts Court will forever after be dominated by ideological lightweights such as Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. And though he does not appoint his colleagues, he will still be perceived as responsible for their actions.

Does Roberts want to go down in history rafted up with this crew?

Apparently not, which is good news to progressives and America as the Supreme Court is likely over the next year to be called on to decide if a sitting president (Trump) can be indicted or if the Mueller Report, when it is completed, can be withheld from public view by Trump's small-minded Justice Department.

The latest evidence that Roberts has become the court's swing man was his vote last week to join the four liberal-leaning justices in rejecting an appeal from the Trump administration that would, if approved, have overturned many decades of asylum policy. To severely restrict the rules by which fleeing refuges can seek the protection of the United States. 

Earlier, he again joined the liberals in overruling a lower court decision that would have restricted federal funding for Planned Parenthood. Thomas and his comrades cried foul. But there was Roberts guided by the Constitution, not partisan reflex.

In even bigger picture terms Roberts' behavior and leadership is of great consequence because, if it persists, it will mean that at least one of the three branches of our otherwise dysfunctional government might again begin to function as envisaged by the Founders and thus will be guided by the Constitution they bequeathed to us.

Then there is the open spat that has been festering since 2015 between Trump and Roberts. All initiated by Trump's intemperate criticism of what he claimed to be the ideological bias of federal judges.

During the election campaign Trump frequently spoke out against what he asserted were liberal federal judges who acted as political partisans. Those in the 9th circuit, for example.

Two days before Thanksgiving Trump attacked an "Obama judge" for ruling against him on immigration. In an unusual public rebuke Rogers shot back, claiming that there are no "Obama judges, Bush Judges, or Clinton judges." Just independent ones.

Actually, there are highly partisan federal judges who are guided more by their beliefs than by precedent or the Constitution. Conservatives as well as liberals. Supreme Court justice Anton Scalia is a powerful example of the former. 

But Roberts is articulating his aspirations for the judiciary and is modeling independent-minded behavior that he hopes will become the standard. He should be commended for that.

July 27, 2018--Hard Ball? T-Ball

John said, "We have to find a way to stop them." He was talking about Republicans in the Senate, which is considering the confirmation of Brett Kavanaugh to the Supreme Court.

"I would like to agree but how do we do that? The Republicans control the Senate and I think they have the votes to confirm him."

"You're probably right," he said, sounding flat. "But I wish there was a way."

"Until the Gorsuch nomination and confirmation process a year and a half ago there had been. Since 60 votes were required it wasn't easy to muster that many in a closely divided Senate for someone controversial, someone now like Kavanaugh who has written that a sitting president can't be indicted under any circumstances."

"That's half the reason Trump nominated him," John said. "But Mitch McConnell unilaterally changed the rules so that only 51 votes are needed. A simple majority."

"He has the power to do that as Majority Leader. There's nothing in the Constitution about confirming Supreme Court justices. So the Senate has the ability to set whatever rules it wants to organize and govern itself."

"Yeah, he invoked what they call the 'nuclear option.'"

"What kills me," I said, "is how the Republicans, who consider themselves to be conservatives, have no problem doing disruptive, radical things like that. They're hypocrites who have little regard for tradition or congressional history."

John said, "During the first two years of the Obama administration the Democrats controlled both houses of Congress but they steered away from taking bold action of this kind. It's not just that they are wimps, which they are, but by not invoking the nuclear option because they felt it would undermine traditional senatorial decorum and ways of doing business, they lost the opportunity to enact a bold legislative agenda. They even wound up with a very watered-down Obamacare program. They frittered away the opportunity to govern. Complaining all the time. Which Democrats are very good at. Complaining."

"I agree," John said, "The Republicans play hardball and congressional Democrats play T-Ball."

"McConnell and the Republicans only care about winning. Liberals and Democrats care about being right."

John summed it up, "And so we have what we have."

July 2, 2018--Jack: Born On the 4th of July

"Happy birthday!"

"My birthday is in October," I said to Jack who was on the phone, sounding celebratory, "I'm confused."

"I was born on the 4th of July, wouldn't you know it, and I call all my liberal friends to remind them about how it was when America was great. When we had our freedom."

Here we go, I thought, but said, "July 4th isn't until Wednesday and I assume you have at most one or two calls to make, considering I'm probably one of your only liberal friends."

"You'd be surprised," he said.

"I'm sure I would be. But in the meantime, happy July 2nd."

"I assume you've read the Declaration of Independence."

"I sort of know it by heart--'When in the course of human events . . .' We were required to memorize the first few paragraphs in elementary school."

"You mean when America was great," he repeated himself, chuckling, "Before all the political correctness. These days, since the Declaration didn't free the slaves or talk about women's rights it's probably ignored in history class, that is if kids these days even take history."

"About that we probably agree. Not much history is being learned these days. Or evolution." 

He liked that. "You know we conservatives like the Declaration more than the Constitution. The Constitution is about what kind of government we are to have while the Declaration is about what to do when the government becomes oppressive. How to change it. Even how to overthrow it. That was a big deal to Jefferson. Didn't he call for governments to be overthrown every few years? Every generation? I think he called this, 'throwing the government off.'"

"Glad to see you know at least some history. And about the differences between the two documents. We may agree about that too. Though we have differences, other big differences. I don't see the government in general being oppressive. Aspects of it, yes. Especially now with Trump as president, ironically, though he calls for less government in fact many of the things he's been doing are making the government even bigger and more oppressive. Think what it would be like if you were an American Muslim. Or an immigrant Dreamer. You wouldn't feel too free now."

"Speaking of immigrates, have you been to any big political demonstrations lately?"

"What about this past Saturday? Doesn't that count?"

"Not impressive. Relatively few marchers showed up. Sure wasn't like the Pussy thing or the one organized by Parkland High School survivors. Millions across the country participated then. This one was hardly publicized or covered by the press."

"Again, it looks like we agree."

"Just more evidence that you guys are out of gas. If you were serious about protecting your rights--like for women and gays, immigrants and the Supreme Court--shouldn't you be planning a huge 4th of July protest? A massive march on Washington? Reading of the Declaration? To show that you're unified and riled up. Not just heading out to the Hamptons or the Macy's fireworks thing. That you're willing to forgo your BBQs. Of course I'm not unhappy about this, but you and your friends should do some hard thinking about how to rally your people. To have a chance in November you have to out-organzie us. We're all jazzed up again with the prospect of Trump appointing another Gorsuch to the Supreme Court. If that doesn't get you marching I don't know what will. The Supreme Court is one vote away from overturning. Roe v. Wade. I hate that idea, by the way, because I'm a libertarian and support a woman's right to choose."

"It must be your birthday," I said, "Because again I tend to agree with you. We progressives have to get even more serious and mobilized."

"I've got to run," Jack said, "I have more calls to make. In the meantime, fair warning."

June 29, 2018--The Supremes

Fret not. At least not yet. 

Yes, Anthony Kennedy is stepping down from the Supreme Court, and liberals and moderates (if there are any of these left) are concerned that his so-called "swing vote" and moderating presence will depart with him. 

And so if Trump nominates and the Senate confirms (as they will--leave that to Mitch McConnell) a stealth arch-conservative similar to Clarence Thomas' new best friend, associate justice Neil Gorsuch, say goodbye to any hope that on key occasions justice Kennedy will join the four progressives on the court and things will be at least a little right with the world.

I hate to sound cynical, but Kennedy isn't so moderate and hasn't often, in truth, been that swinging a Supreme. 

With the exception of gay rights and in limited ways abortion rights, where as a libertarian he has been supportive (after all he's from Northern California) he has almost always been the dependable fifth vote, joining the four knee-jerk conservatives.

This year, for example, on all but one occasion he joined the right-wing four. So if he swings, almost all the time he swings to the right.

Thus his leaving the court will not change that much.

But here's what to fret about--

RBG. Ruth Bader Ginsberg.

She seems still to be vital, but at 85, the court's oldest justice, a pancreatic cancer surviver, how much longer can she schlepp herself to her chambers?

(With Kennedy retired--he is 81--the next oldest justice is liberal Stephen Breyer, who is 79.)

I'm no doctor, but though RBG could make it through the remainder of Trump's (first?) term, what are the odds of her being around for the four years after that? I'm not a betting person but . . .

I hate myself for saying this, but considering her medical history, if RBG genuinely cared about the issues she has devoted her life to--like the various rights of women--why didn't she step down during the first half of Barak Obama's first term when the Democrats controlled not only the White House but both houses of Congress? It would have been possible for him to nominate and ram a moderate through the Senate confirmation process.

Then we would have little to fret about. But now we need to do more than fret but to worry and I mean worry profoundly.

More than anything else we need to vote in November and work hard between now and then to increase turnout.

February 1, 2017--Your Land

Macho Donald Trump was in the White House Tuesday night firing Sally Yates, his acting attorney general for "betraying" the law and the Constitution.

At the same time, in a burst of faux-emotion, Democrats from the House and Senate, led by Nancy Pelosi and tearless Chuck Schumer, stood on the steps of the Supreme Court, and with a malfunctioning microphone, mainly off-key, sang "This Land Is Your Land, This Land Is My Land."

Enough said.

July 12, 2016--Ruth Bader (Goodbye) Ginsberg

It is rare for Supreme Court justices to speak publicly. Unless they are making the rounds hustling a book. In that case mammon trumps courtly custom.

But just yesterday one of the Supremes trumped all of this--Ruth Bader Ginsburg not only spoke publicly but politically--trashing Donald Trump and bemoaning the possibility that he might be elected president.

She didn't do a Madeleine Albright, relegating people who do not vote for Hillary to "rot in hell."

Ginsberg did Albright one better, sputtering, "I can't imagine what this place would be--I con't imagine what the country would be--with Donald Trump as our president. . . .  For the country it could be four years. For the court it could be--I don't even want to contemplate that."

But contemplating that, quoting her husband, smiling to the New York Times reporter, she added, "Now is the time for us to move to New Zealand."

Among other things, I hope she has an updated passport since I think that's a fine idea. At 83, with little energy or discretion remaining, even having not said something this outrageous, it is long overdue for her to head for the Antipodes or Boca.

In the same Trump interview, she also rued the fact that the Senate has refused to vote on President Obama's nominee to replace the recently-departed Anton Scalia.

But she failed to mention her own situation and inevitable replacement because as an old and ailing octogenarian soon to be departing or retiring in New Zealand, with the possibility that Trump might be in a position to nominate a replacement for her (she, not I, brought up the subject) as concerned as she now is about the ideological balance on the court, she should have stepped down during Obama's first term to assure that a liberal would take her seat.

But no. There she more-or-less still sits. Full of herself and hypocrisy.

February 15, 2016--Anton Scalia "Originalist"

I know I should hold back from criticizing Associate Supreme Court Justice Anton Scalia. That I should pause to honor him and his service, but since so many are already speculating about his place in history and his successor--principally whether or not Barack Obama should nominate one or capitulate in advance to Republicans in Congress who want him to stand aside and let the next president do the appointing--it is hard to sit still and listen to Scalia's being overpraised, even canonized.

This of course is not unusual when a person of stature dies, but to picture him as a towering, even historic figure, to extoll his scholarship, is beyond anything that should go unchallenged, even during this period of mourning.

Yes, he was influential as a result of his ability to cow colleagues, most notably Clarence Thomas, and his assertion that he was the one true conservative "originalist" on the court. A judicial practice that seeks to apply how the Constitution's framers' original words should direct appellate court decisions.

In truth, since it is not possible to interrogate the Framers to see how we should deal with issues not explicitly mentioned in the Constitution--among others the use of the electric chair, women's and gay rights, automatic weapons, and abortion--Justice Scalia worked backwards in his search for logic and precedents to bolster his opinions and dissents. Backwards because he began with pre-determined conclusions and then searched for so-called originalist evidence (evidence that did not exist and thus often was made up by him) to justify those conclusions.

This is the way so much of our political discourse proceeds and in this Scalia acted more like an ideologue or political operative than a dispassionate judge seeking the truth. Most often with him the truth was what he arrogantly determined it to be. Not the Framers.

Two examples--

Bush v. Gore, the SCOTUS decision that gave the 2000 presidential election to George W. Bush.

The Constitution could not be more explicit about how it is up to the states, via the Tenth Amendment, to manage and adjudicate local electoral disputes, including in federal elections. Rather than allow that process to culminate in Florida within the state's supreme court, the U.S. Supreme Court, under Scalia's leadership, shopped around for originalist rationalizations that permitted the nation's highest court to abrogate a state's right to complete it own constitutional judicial review of the legitimacy of the vote in Florida.

Scalia wanted Bush elected, that's where he and four of his Republican colleagues began their deliberations, then they shopped around for arguments to prop up their ultimate shaky decision.

There would not have been a President George W. Bush if there hadn't been a Justice Scalia and, lest we forget in this election cycle, brother Jeb!, then governor of Florida, and his corrupt Secretary of State. Remember Katherine Harris?

Also to illustrate, there is Anton Scalia's originalist interpretation of the Second Amendment, which states--"A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed."

Even a well taught high school student knows that this amendment gives citizens the right to bear arms only in order to participate in the formation of a well regulated militia. It does not confer the absolute right to bear arms even for self protection. It was written that way because our Founders and the Constitution's Framers were leery of the new nation, in contrast to countries such as England and France, having a potentially oppressive standing army that could be mobilized by unscrupulous rulers to abrogate citizens' freedoms.

In District of Columbia v. Heller, again with Scalia leading the way, the Court held that the government is essentially powerless to prohibit or restrict weapons in "common use." The majority wrote that this right to bear arms "is not defined by what the militia needs, but by what private citizens commonly possess."

This is a gross misreading of the Second Amendment.

This notion of common possession is nowhere to be found in the text, structure, or history of the amendment. This unprecedented, idiosyncratic notion of "possession," gives gun makers and individuals--not legislatures or even the courts--the power to determine public policy.

This finding feels about as far away from anything considered to be originalist as one can imagine. But once again, Justice Scalia, with tortured logic and an ideological distortion of constitutional history, more through bluster than dispassionate argument, held the day and Heller was decided in the affirmative.

Yes, Anton Scalia could be charming, loved opera, apparently and unpredictably befriended Ruth Bader Ginsberg, but a towering legal mind? An historic figure? A "lion of the court"? Mourn his death as we would anyone's who died a bit prematurely, but let's get a grip on all the unstinting praise.

In spite of the conservative criticism of "activist" judges "legislating from the bench," since 1986 when he was appointed to the Court by President Reagan, that well describes what Justice Scalia had been doing up until this weekend.

June 29, 2015--Jiggery-Pokery

In his, even for him intemperate rant against the Supreme Court's historic 6-3 decision to uphold the constitutionality of the Affordable Care Act (ACA), associate justice Anton Scalia went further than usual in a descent that went beyond the judicial to the very personal.

More than saying that he fervently disagrees with his colleagues' legal logic, he accused them of participating in a deceitful and dishonest act, even applying the archaic Scottish slur jiggery-pokery to impeach their honor and integrity.

In the old days, which he so reveres, he might have been called out to a duel on the field of honor by one of the other justices. But alas, we will have to endure more of him and more of this because the court, under chief justice Roberts, is going rogue on him.

As the intellectual leader of the court's conservatives, the alleged strict constructionists or texturalists,  for decades dominating the other three to four justices who have placidly gone along with his views of the Constitution (with Kennedy occasionally being a swing vote, agreeing with the four automatic liberals), Scalia now finds himself at times in the minority, especially when the court hands down its most significant decisions, like last week's rulings on Obamacare, same-sex marriage, and the Fair Housing Act. (Do not overlook the importance of the latter.)

Scalia might have been more enraged than ever by Roberts' majority opinion in Burwell (the ACA appeal) where he subtly and without attribution quoted Scalia to himself to support the core of the argument he articulated for the five concurring justices.

It is all about context, as Scalia claimed in cases last year when he employed the same contextual argument--it is all about what the Congress truly intended. In the ACA case, Roberts wrote last week, if one looks at the 900-plus page context of the ACA--as Scalia would have us do in selective instances such as this one for laws he viscerally despises--it is clear that Congress intended the uncovered to be able to obtain affordable health care insurance.

Being quoted this way to justify something he violently opposes clearly got under Scalia's skin and motivated him to deliver his dissent from the bench, a highly unusual occurrence that underscored his fury.

But, again, Scalia's intemperance is less about the Obamacare vote than his sense that the court and American society on key social issues are moving on and he is more and more being left in the retrograde past--multiple meanings intended.

He will learn forcefully now that this is the Roberts' Court, not the Scalia.

June 2, 2015--One Man (sic) One Vote

If there is a case pending before the Supreme Court that has the potential to change life in America as we have come to know it, it is not their soon-to-be-announced ruling on same-sex marriage or even down the line Roe v. Wade.

It is how the Supremes will rule in 2016 on voting. On what used to be called one man one vote which in our current era is referred to as one person one vote.

Here's the issue--

Currently, election districts are drawn so that approximately the same number of residents are included in each one. SCOTUS will decide whether or not in their view this is constitutional or if districts made up of equivalent numbers of voters better satisfie the meaning of one person one vote.

If they decide the latter (and in previous cases that have raised similar questions the court has ruled that everyone needs to be counted, not just voters) this will dramatically shift electoral power away from urban centers and more toward suburban and rural communities.

In other words, districts that include only voters in their count will be much more conservative (read Republican) since cities with large immigrant populations (including undocumented ones who get counted but don't vote) are traditionally more liberal but as a percentage of population have fewer voters than rural or suburban communities.

Such a shift would have major political consequences and could lead to that long-dreamed-of permanent Republican majority. Thus, considering the iron ideological division in the current Supreme Court it is no surprise that the Chief Justice has opted to once again bring it to the court's attention. In his view, clearly, the current constitutionally-defined structure for election districts is not settled law. Just as the Voting Rights Act, which recently they substantially gutted, turned out not to be settled law.

We know right now, before even one brief is filed much less an oral argument offered, that at least seven or eight of the nine justices already have their minds made up. This shouldn't be, but that is how it works these days in the federal courts. Ideology and political orientation rule.  Pun intended.

November 17, 2014--Co-Equal?

Flipping channels the other morning in search of anything other than the local weather forecast and reports about gridlocked traffic, I paused for a moment on MSNBC to see how their post-election post-mortem was proceeding.

They had already concluded that there was no chance of anything bipartisan happening between a cranky Republican Congress and an equally grumpy Barack Obama, who was about to issue a series of executive orders to deal in part with our immigration mess.

John Boehner was sputtering that if the president did this the GOP would fight him "tooth and nail," some of his members gleefully chiming in in the background that this could lead to Obama's impeachment; while over in the Senate, about-to-be Majority Leader Mitch McConnell said that if Obama signed those executive orders it would "be like waving a red flag in front of a bull" and could easily lead, McConnell threatened, to yet another government shutdown.

Boehner I ignored--he has his Tea Party members to contend with; but I took McConnell at his word because if there is anything he knows about it's bull.

One of the MSNBC panelists pointed out that Obama acting as promised would assure nothing gets done since, "in our system," the federal government is made up of "three co-equal parts" and unless there is some semblance of working together it will mean that more than the traffic will be gridlocked.

Really, I thought. Have the MSNBC folks read their Constitution recently?

In fact, in great detail, whatever we think of it, the Constitution goes to great length to make certain that the three branches of our government will be anything but equal or, if you prefer, co-equal. And to assure that the Congress, which at least theoretically most represents "the people," in fear of European-like monarchal tyranny or dominance by corrupt and unrepresentative courts, our Founders took care to structure things so that Congress would be preeminent.

Not the executive branch and not even the Supreme Court. In fact, creating the Supreme Court was an afterthought on the part of the Framers. That's how much they despised and feared the potential power of a corrupt judiciary. And so they severely limited its powers. As they did the presidency, again, for fear of tyranny.

Congress has the exclusive power to enact laws (forget executive orders which by their nature are constitutionally questionable--something we may see tested if Obama does his immigration thing) and once passed and approved the executive, like it or not, the president must enforce. Indeed, though bills passed by Congress must be approved by the president, if they are vetoed, the Congress still has the ultimate authority to enact them by voting to overturn that veto. And if the president refuses to follow the Constitution he can be impeached and removed from office. By Congress. As can Supreme Court and other federal judges. Again, solely by Congress. Only voters can get rid of even felonious or demagogic congressmen.

This doesn't sound co-equal to me.

What about the president's constitutional prerogatives as Commander in Chief? Doesn't that make him preeminent? Not really.

When the Constitution was written in 1787 the new republic didn't have a standing army and so there was very little for the Commander in Chief to command. In fact, the Framers were reluctant to agree to a standing federal militia or navy. That too they saw to be a threat to representative government. Again, looking toward Europe, it was the last thing they wanted.

It is only since the Second World War when, because of the advent of nuclear weapons and ballistic missiles and the speed with which they can be launched, that so much retaliatory power has accrued to the presidency. But, again with the necessary acquiescence of Congress. It is felt that the national security state that we have become requires such powers be granted to the president. But, if Congress disapproves of presidential military ventures it has the exclusive power of the purse--only Congress can authorize governmental spending.

This doesn't sound co-equal to me.

And when it comes to the Supreme Court, it too is a bit less than supreme. True, for the most part, when they rule it becomes the so-called "law of the land." But they rule about very little and even if and when they do, if Congress does not like a ruling it can pass other similar laws designed to get around SCOTUS rulings and, if that fails, amend the Constitution. Admittedly this is a rare and arduous process, but still the power resides with the Congress (and the states) to change if they wish our most sacred document.

Again, this doesn't sound co-equal to me.

Like it or not, the structure of the government we have is not as viable as it was in the sleepier 18th, 19th, and even 20th centuries. But it is what we have. Governmental gridlock was not something to be avoided, but was a desired part of the process. A relatively weak and unintrusive federal government is what our Founders intentionally framed for us and though we now know how intrusive an unfettered government can be, because of checks and balances, an ineffective government with a dominant Congress is what we have. Just what was intended.

July 3, 2014--Barefoot and Pregnant

I recently read Sean Wilentz's Age of Reagan.

It's a reasonably balanced view of how Reagan emerged on the national political stage in 1964 during Barry Goldwater's quest for the presidency and how, when Reagan was elected president, his administration became a vehicle for the proliferation of neo-conservative thought and action, with players who then and later influenced domestic and foreign policy. He managed to keep the pre-empters isolated, those who wanted to aggress against the collapsing Soviet Union, but allowed supply-siders to take control of economic policy.

Trickle-down became the belief system that guided tax and spending policy and, though it didn't work (the federal debt tripled and the gap between the rich and working poor began to widen dramatically), it continues to dominate, even control current conservative thinking.

Wilentz does a good job of describing the basic Republican strategy, fully on display during the Reagan eight years, to undo the policies of the New Deal, Fair Deal, and Great Society.

With the significant exception of welfare reform, they never had the votes (as now) to overturn or dramatically transform safety-net programs such as Medicare and Medicaid, Social Security, unemployment insurance, aid to education, federally-subsidized college loans, low-income housing, food stamps, and the like, nor could they get the Supreme Court to declare these unconstitutional. But they did figure out an effective long-term strategy to reduce and even eliminate them--asphyxiate them by cutting off their fiscal oxygen supply.

By refusing to go along with full appropriations, not agreeing to spend the money required to sustain these policies, over decades they have managed to chip away at the size and reach of many of these signature progressive programs.

It's the basic jujitsu approach to legislating--do as little as possible, better, do nothing and in the process watch programs such as Head Start wither.

A few are sacrosanct and have widespread support even among anti-government Tea Party Republicans--cut government to the bone, they chant, but take your hands off my Medicare and Social Security. Both actually forms of socialism!

Tea Party folks may say this, but the Republicans they keep reelecting to Congress continue to vote to make Social Security either discretionary or investable in the stock market and have voted repeatedly for the so-called Ryan budget, which would end Medicare as we have come to know and depend on it.

Democrats have no equivalent long-term plan to preserve and expand policies that reflect their core values and, as a result, the handwriting is on the wall. Even if they manage to keep electing Democrats to the White House this policy erosion will continue.

Beyond congressional tactics, for the moment conservatives have firm control of the Supreme Court and the national federal judiciary and there they are doing a version of the same thing--taking seemingly small regressive steps that have enormous long-term consequences. The recent Hobby Lobby decision is a case in point.

It exempts two small family-owned companies from having to comply with the Obamacare requirement that their health care insurance cover the cost of contraceptives. But legal scholars worry that this is just a foot in the door to other forms of restriction. Few are yet thinking of rolling back the right to buy and use contraceptives--pre-Griswold v. Connecticut days--but one never knows. There are more than a few Republican and Tea Party leaders who would ban all forms of contraception and like to see women again barefoot and pregnant.

April 18, 2014--Forced Arbitration

Now there is another reason not to "tell" Facebook that you "like" something.

I visit Facebook less and less frequently as more and more advertisements show up on my Facebook page. For example--I have a cousin, who shall remain nameless, who has serious reservations about capitalism. And I am speaking euphemistically. He is way beyond Progressive. But his Facebook postings (don't ask me why he is a member of Facebook--no one is without contradictions) is filling up with ads.

Next to his posting warning about the military-industrial complex and another relishing the fact that Comcast was voted the 2014 "worst company in America," popping up are ads for the iPhone 6 and Tim's Cascade Style Hot Jalapeño Seasoned Potato Chips.

So much for Facebook serving as a forum for progressive discourse or for my cousin's eating habits.

But there is more.

As reported in yesterday's New York Times, companies such as General Mills and Kellogg's are attempting to use consumers' "likes" as a way of disallowing potential plaintiffs from suing the company for damages. So, if a box of, say, Raisin Bran, contains broken glass, the person eating a bowl with as much glass as raisins by this sleight-of hand logic would be forced to participate in arbitration rather than being able to take their claim for damages to the courts.

This would pertain to anyone telling Facebook that they "like" Raisin Bran but also to anyone who downloaded a discount coupon or entered a company-organized sweepstakes or contest.

The claim is that if you participate in any of these things you are deriving a "benefit" and as such are holding Kellogg's, in this instance, legally harmless.

If this sounds outrageous--that by doing something as innocuous as using a discount coupon you are in effect assigning away your right to sue--it is derived from a number of under-the-radar Supreme Court decisions that are a part of a spate of SCOTUS rulings that hold corporations less accountable to the public.

According to Julia Duncan, director of federal programs at the American Association for Justice, a trade groups representing plaintiff trial lawyers, "It's essentially trying to protect the company from all accountability, even when it lies, or say, an employee deliberately adds broken glass to a product."

My advice--read the fine print, cancel your Facebook membership, and eat granola.

April 1, 2104--Progressives' Dirty-Little-Secret

Here's the dirty-little-secret--

Liberals and progressives like me are actually clandestinely happy with most of George W. Bush's policies.

That's why there are no large-scale protests. Occupy Wall Street came and went in a month. The rest is silence except for the occasional New York Times editorial and the shouting and smugness that passes for political discourse on MSNBC.

With the tax season culminating in two weeks, we liberals are especially happy with what the Bush-era tax cuts have meant for us.

Demographically, progressives are more highly educated, have better jobs, and earn more money than "ordinary" conservatives. Thus, all things being equal (which they are not thanks to the previous president) we affluent lefties have disproportionately benefitted from the 2001 tax reductions that Bush promulgated (to be fair and balanced, 12 Democratic senators voted for them) and Obama reupped in 2009, with Democrats in numbers again endorsed.

On Saturday from our accountant we received our filled-out tax forms for 2013. We had a good earnings years and needed to pay a little more than in 2012. But, but, as the result of the Bush-Obama tax cuts we owed about $5,000 less than we would have had to pay under Clinton's more progressive tax polices.

Furthermore, how many liberals are out in the streets protesting cuts in food stamps and aid to education; slashes in spending for medical and science research; less available for environmental protection; cutbacks in support for women's health programs; Supreme Court decisions to allow unlimited corporate spending on political campaigns and the effective rollback of the Voting Rights Act of 1965?

We're even OK with Bush's Patriot Act and Obama's use and expansion of it since we care more about protecting our comforts than our privacy.

And, since we have an all-volunteer military and our children and grandchildren are not in danger of being drafted, much less inclined to sign up and be shipped off to Iraq or Afghanistan (or Ukraine), beyond spouting rhetoric about how awful all this is, how perfidious and hypocritical Republicans are (they are), we secretly smile when we sign our tax forms, sit back on the deck at our vacation homes, and sip Chablis while streaming House of Cards.

Hey, if these policies don't affect me directly why get all out of joint much less use Twitter as they do or did in Egypt and Venezuela and Russia to mobilize? It's cold out there, it might rain, and I might even get my head busted by an overzealous policeman.

Even if half the states so restrict abortions as to make them unavailable, we live on one or the other of the coasts--so no problem.

Actually, for the fortunate us there are few problems with anything.

July 16, 2013--Irresistible Attraction

There have been many law suits brought by female reporters and anchorwomen contesting that they lost their jobs because station managers discriminated against them because they had gained weight or simply aged and no longer looked cute and perky.

Now there is a related case with an unusual twist.

This one was brought by a male dentist's female assistant who claimed her boss fired her because she is a woman. So far familiar ground. Nothing new about that.

But last Friday, the Iowa Supreme Court upheld a lower court's ruling that the firing was not sex discrimination because it was motivated by feeling and not gender.

From the New York Times, here is some background--

The dentist's defense was that he let her go not because he discriminates against women but rather because she was too attractive.

Dr. James Knight (no age reported) said that because of her charms he was becoming smitten by her and worried he would start an affair. There is, however, nothing in the court record that would suggest the assistant, 33-year-old Melissa Nelson, would consent to an affair with him.

The court found that it is permissible for employers to fire someone "that they and their spouses see as threats to their marriages."

During the appeal, Nelson's lawyer asked the court to reconsider a December decision of the lower court in which the justices said that the issue was "whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction." The answer clearly is yes.

And this was affirmed by the state's highest court, though the irresistible attraction language was struck from the ruling. It now reads that Ms. Nelson was fired "because of the activities of her consensual personal relationship." Which from what I have been able to determine was nonexistent.

So, if this case gets to the Supreme Court, perhaps Justice Scalia will help us figure out whatever all of this means.

In the meantime, from Yelp, not reported in the New York Times, here is a sampling of typical comments from patients of Dr. Knight's:

I was visiting here [Fort Dodge] while on winter break. One of my molars had broken so I made an appointment. I figured I would need a crown or something. Instead I felt like I was in that movie "The Dentist." Glad I didn't get the procedure under "twilight." Creepy, rude and a bit handsy.

                                                         *    *    *

Awful, horrible service. The dentist is a bit of a creep too. Don't go there unless you want inappropriate, misogynistic comments about women. Likes to present himself as Christian and moral, but is actually the complete opposite.

                                                        *    *    *

Yikes, this guy seriously has urges he can barely control. I am married, a mother of 3, honestly not very attractive, and he kept telling me how he could barely stand being in the same room as me, that I could not be his patient even though I desperately need my root canal, because I was "making" him sin in his mind.