Month: September 2020

With Trump’s encouragement, America had turned into the land of hundreds of Brooks Brothers riots– only this time, some of the rioters were brandishing AR-15s. The local elections supervisors were paralyzed. The issue swiftly moved into state courts.

Since the state election law issues were relatively clear-cut, the state courts did their duty, and Trump lost these cases. He had always viewed “his” Supreme Court as his ace in the hole, however. He just needed to find a theory that would put all of the cases in federal court, and victory was his. After all, three of the Court’s members had been selected by him! In true Godfather style, it was time for them to perform a service to him. That’s the way the world works.

Trump’s attorneys dutifully managed to build a transparently bogus constitutional claim out of the bones of Bush v. Gore and filed actions in federal court. When he lost at the lower levels, he asked the Supreme Court to hear the case. Thomas and Alito had long since become angry GOP partisans, with no interest in upholding liberal democracy; they were willing to go along. But Chief Justice Roberts and the three Trump appointees had had enough. The vote was 7-2 against Trump, and the legal phase of the drama was over.

Trump seethed. How could his appointees be so disloyal to him? They owed him! They were rats! But even McConnell and Graham, who had stayed quiet while the storm was raging, were done with it at this point. They told him the game was up. And it was; Biden took the oath a few weeks afterwards. Trump retreated to Mar-a-Lago and began a series of furious tweetstorms that has continued to the present day.

It’s late in the day on November 4. The red mirage is steadily giving way to the blue shift. Trump goes on TV and demands that the counting of mailed ballots be stopped immediately in swing states. “Fraud,” he cries, and his followers are mobilizing to assist him.

Hundreds of election supervisors of both parties now have to decide whether to follow state law and continue the count or capitulate to the man on golf cart and his armed militias. What will they do?

Probably get the local judiciary involved. There will be so many lawsuits, it will make your head spin. It will be Florida 2000, only with multiple jurisdictions involved, and mailed ballots taking the place of hanging chads.

Ultimately, it is Trump’s hope that “his” Supreme Court will make the final decision in his favor. Will that happen? My prediction comes tomorrow.

I’m sorry, but the grand jury got it right; Breonna Taylor’s death is a tragedy, but not a crime. Whatever mistakes were made up to the point that the police started taking fire, you can’t expect them not to shoot back.

It is more than appropriate to review procedures to make sure that it doesn’t happen again, and the completely insensitive comments made by one of the cops after the fact do not help, but using the criminal justice system in this case to punish anyone for the death would have been wrong.

A new study by Citi apparently concludes that racism costs our economy $16 trillion. I can’t vouch for that number or the methodology of the study, but I have no doubt that the gist of it is accurate, and it helps to illustrate one of the problems with reparations.

Racism is inefficient; that’s why the railroad company wanted to invalidate the segregated car requirement in Plessy v. Ferguson. Furthermore, while it is emphatically true that black people were deprived of income and wealth as a result of discrimination, it does not follow that their loss caused a corresponding gain for white people. There is no lump of wealth, any more than there is a lump of labor. And so, there is no pile of unearned money to compensate black people for their loss–everyone loses financially with racism.

Imagine that you are playing Trump in a mock debate with Biden. How would you handle it? You know that he will be aggressive, and that he will lie his brains out–that is his entire strategy. What lies will he tell? Whatever pops into his brain at any given moment, of course. That’s hard to reproduce.

With that in mind, here’s my debate prep advice for Biden:

1. MEMORIZE THE RECORD: Otherwise, you can’t do any effective fact-checking.
2. DON’T RELY ON THE MODERATOR OR THE MEDIA TO CHECK THE FACTS: To make an impression on the viewers, you have to do this in real time. Remember Romney and his tax plan in 2012.
3. DON’T LET HIM PUSH YOU AROUND: Be polite, but aggressive. Call him out when he lies and when he tries to change the subject to something he wants to talk about, which will be on virtually every question.
4. EMPHASIZE HEALTH CARE, CLIMATE CHANGE, THE PANDEMIC, AND CORRUPTION: No elaboration is required.

I still think the pitch clicker idea for lies is a great idea. If anyone associated with the campaign reads this, please take note.

On the GOP leader named Mitch.

His views on the Court have now switched.

The Trump nominee

Has her seat guaranteed

No matter how loudly we bitch.

The Founding Fathers were not democrats; they wanted a mixed system with plenty of checks and balances, like the British system or the Roman Republic. Did they envision the kind of minority rule through the judiciary that McConnell clearly has in mind? And does the rest of American history provide any support for it?

It’s a complicated question. Here are my responses:

1. There are four periods in which issues with the judiciary somewhat similar to the present one arose. The first was the attempt by Adams and the Federalists to pack the judiciary with sympathizers after the 1800 election; the second was the period around the turn of the 20th century when federal and state courts fairly routinely overturned popular state business regulations on the basis of substantive due process; the third was the 1930s wave of Supreme Court decisions invalidating New Deal legislation; and the fourth was the judicial imposition of desegregation measures from the middle of the 1950s to the early 1970s.
2. History has obviously treated these episodes very differently. The Adams effort to pack the judiciary was pretty grubby, but its immediate result was Marbury v. Madison, and the longer term effect of federalism in the judiciary was the strengthening of the Union and the single market through the enforcement of the Commerce Clause. The substantive due process days are still viewed as an odious outlier, not to be repeated. The Supreme Court changed gears on the New Deal legislation not long after it was threatened with Roosevelt’s packing scheme. Finally, the Warren Court is viewed as a beacon of justice and sanity in the darkness of bigotry and segregation.
3. Therefore, you cannot say that empowering the judiciary against a majority has always had positive or negative results. It depends on the era and the issues.
4. The Founding Fathers did not believe in pure democracy, but there is no evidence to suggest that they would have thought that a scheme designed to systematically thwart the values of a majority through the judiciary was in any way workable. Checks and balances, yes; a permanent institutional roadblock, no.
5. In any event, the Constitution has changed significantly since 1787; democracy is built into the system today in a way that the FFs never contemplated as the result of several bitter struggles throughout our history. As a result, what the FFs thought of the system is of less relevance than strict constructionists and originalists seem to think.

On balance, the problem with the McConnell project is not the empowering of right-wing judges so much as the unprincipled way in which it is being done. The new justice will be viewed as completely illegitimate by more than half of the public, including me. That is not a recipe for stable and popular government. It could very well lead to instability and dramatic changes to the fundamentals of our system in the foreseeable future. McConnell clearly believes that left-leaning millennials will just suck it up and learn to live with his roadblock. I, for one, am not so sure.

Kelly Loeffler has a commercial in which she proclaims herself to be more conservative than Attila the Hun. My question is, on what basis did she decide that a man who did untold damage to the Roman Empire was a conservative? Did she ask him for his opinion about the ACA? What about deregulation? Did he only cut taxes for his immediate subordinates? Inquiring minds want to know!

Oh, right. Attila was a swaggering, testosterone-driven barbarian who laid waste to everything and everyone around him. That’s what makes him a Republican.

I certainly wouldn’t argue with that, just as I wouldn’t argue that Trump is the victim of a color revolution. A little self-knowledge can be a dangerous thing.

“The End of the Innocence.” “Welcome to the Boomtown.” “Dust Bowl.” For some reason, I find myself gravitating to grim 80’s songs in the middle of our pandemic/recession/constitutional crisis.

Iran/Contra, cocaine, and struggling single mothers seem kind of quaint today, don’t you think?

Welcome to the Zoomtown! Such places actually exist, per the NYT.

It has been suggested that the Democrats should refuse to participate in the confirmation hearings in order to make a statement about the illegitimacy of the nomination. Is that a good idea?

No. It will help the Republicans move the nomination through the Senate at warp speed, and it will make it impossible to ask the kinds of questions that need to be asked during the hearings.

There is only one positive element to a boycott; it would prevent the use of the politics of personal destruction against the nominee. The seriousness of the occasion transcends that kind of approach.

The MSM have struggled to come up with a generally accepted formula for calling out Trump’s lies without using the divisive l-word. It appears that they have hit upon “without evidence” as their catch phrase. They use it every time he just makes up something, such as his latest allegation that the Democrats fabricated RBG’s testament. Just recognize it as a polite, judgment-free way of labeling the man a liar.

On a somewhat related note, the right apparently has taken to accusing the left of fomenting a “color revolution.” If you take the analogy as far as you need to go, that makes Trump America’s Putin. That this analogy doesn’t bother them should tell you how far the GOP has fallen.

It’s 1911, and you’re in the UK. The Liberals have a large majority in the Commons, but things are not going well, and an election looms. They decide to change the subject by sending the Lords a budget they know will be rejected. When it is, they get to run against the Lords instead of defending their record. It works, albeit imperfectly; they win the election with a reduced majority.

Biden is clearly attempting to avoid this kind of scenario. He wants to talk about empathy, the virus, the economy, climate change, and health care. If the election is fought on those grounds, he will win. If it becomes a battle over the Constitution, who knows? Hence his lack of interest in committing himself to abolishing the filibuster and packing the court.

We have to assume that McConnell will ultimately get 51 votes to proceed with the confirmation process. How should the Democrats respond? Righteous outrage is understandable, but unproductive; what they need is a tactically shrewd reaction.

Here are some options, and my reactions:

1. USE THE RULES TO CREATE PROCEDURAL ROADBLOCKS: Absolutely. There are no down sides to it. Pelosi may be able to help.
2. SHUT THE GOVERNMENT DOWN: No. The Democrats are the party of responsible government. Too many people will be hurt, and it gives Trump a new campaign issue that he doesn’t deserve.
3. REFUSE TO TALK ABOUT STIMULUS: That issue needs to be kept separate from this one. If there is an opportunity to provide needed relief to American workers and businesses that doesn’t give Trump too great an advantage, it should be taken.
4. THREATEN TO ELIMINATE THE FILIBUSTER AND PACK THE COURT: That message has already been sent with the appropriately vague threat that all options are on the table. Emphasizing it helps the GOP avoid talking about the issues you want to focus on–the pandemic, the recession, health care, and climate change. Keep your powder dry and your options open.

A statesman is someone who puts the long term health of his country before any personal or partisan interest. That’s exactly what Mitch McConnell isn’t. In 2009-2010, he made it clear that regaining power was more important than digging the country out of the Great Recession. In 2016, he pulled his Merrick Garland stunt. Today, he appears to be determined to violate his own “rule” for Garland and force a vote on Trump’s nominee before the next president takes office.

McConnell and Trump are very different people, but they appear to agree on two points: power is the only thing that matters; and rules are to be made up and broken purely in your short term best interests.

What can the Democrats do? What should they do? That will be the subject of my next post.

Mitch McConnell has a plan to use the filibuster, the Electoral College, and the judiciary to frustrate the emerging Democratic majority and effectively lock in minority rule for the foreseeable future. RBG’s death, for him, is a gift from heaven. He’s already announced that Trump’s nominee will get a vote in the Senate even though we are less than two months from the election.

But this grab for the marshmallow comes with terrible risks, both for the GOP and the country. First of all, it isn’t set in stone that McConnell can get a majority in the Senate for an expedited vote. Second, Trump is bound to pick an extreme right-wing jurist in an effort to please his base. That won’t help him win votes from moderate swing voters, particularly women, that he desperately needs in November. Third, it puts the seats of endangered GOP senators (here’s looking at you, Susan Collins) in even more peril. Fourth, and most importantly, such a naked, unprincipled power grab will be viewed as a justification for ending the filibuster and packing the court, not just by the far left, but by the entire Democratic Party, if they win the presidency and a Senate majority in November. Is a socially conservative Supreme Court worth a huge constitutional crisis, and even a potential revolution of sorts?

One thing is for sure: the country didn’t need this right now. Life is about to get even uglier than it already was.