Cromwell

Have you seen the ad for the new Trump/Comey miniseries on Showtime? Both characters are shown in silhouette at a table. The actor playing Trump has his chest and his chin thrust out like some sort of a cross between a fat Mafia don and an angry gorilla. The picture is worth about a billion words. You don’t even have to watch the show to know how it turns out.

That’s the man putting Coney Barrett on the Supreme Court. Her every instinct should be telling her “Danger, Will Robinson! Danger!” But is it? I don’t know.

Most commentators agree that this year’s debates will matter less than usual, because the number of undecided voters is unusually low. Given Trump’s polarizing personality, that seems reasonable.

But some presumably exist. Who are they? I’m guessing they fall into two categories:

1. Transactional voters who are waiting to see what the condition of the economy is in November; and
2. Voters who are leaning against Trump, but need further evidence of Biden’s acuity and moderation before they make the final leap.

Neither candidate can do anything about #1 at the debate. #2 is purely in Biden’s hands. Trump has set a very low bar, and will undoubtedly make an obnoxious fool of himself during the debate, so this should be an easy win for the blue team.

We apparently have an informal agreement to defend Taiwan against Chinese aggression. And why not? From unpromising authoritarian beginnings, Taiwan has evolved into a robust, prosperous liberal democratic state. It is everything we hoped the mainland would be, but isn’t.

Circumstances have changed, however. It was relatively easy to commit to defend Taiwan when the PRC was a military pygmy. That is no longer true, and is becoming less true by the day. We would be fighting on the PRC’s home field, thousands of miles from the American mainland. It would be an incredibly risky endeavor.

The Chinese leadership has shown in recent days that it won’t wait forever to force a confrontation over Taiwan. When it does, will the United States put its very existence at risk to protect what it acknowledges is part of China? Is Taiwan a core strategic interest in the same way that Europe is?

I have my doubts, regardless of who the American president is at the time. If I’m a member of the Taiwanese government, I wouldn’t base my plans on it.

Donald Trump clearly sees himself as a figure from a Nietzsche book–the man whose greatness is so overwhelming and self-evident that he cannot be bound by laws designed for mere mortals. His reactionary supporters mostly view him in the same way. Republican members of Congress know better, but enable him in order to appease the red base.

Today’s question is, simply put, what is the basis for this belief? What has Trump ever done with his life that justifies such treatment?

As far as I can tell, Trump’s “accomplishments” consist of building a few large, garish buildings in New York, creating and making money off a bogus brand, being the host of a reality show with modestly impressive ratings, and running numerous businesses, most notably casinos, into the ground at someone else’s expense. That record entitles you to immunity from normal ethical standards? I don’t see it. I honestly don’t see how anyone does.

The confirmation hearings will, as always, be prime political theater. What kinds of questions should the Democrats ask her? Here are my ideas:

1. PEOPLE OF PRAISE: Questions about Catholicism in general are counterproductive, but there are reports that she may have taken some kind of an oath to this group. We are entitled to know if there was such an oath, what it was, and to whom it was given.
2. RELATIONSHIP WITH TRUMP: Overturning Roe was, by Trump’s admission, a litmus test in the nomination process. It is also clear that he expects his appointees to vote in litigation over the election to keep him in office. In light of that, why should America believe that she hasn’t given him a promise on abortion, and why shouldn’t she have to recuse herself in any election-related litigation?
3. ORIGINALISM: Methodological questions abound. How are the Founders’ views on things that didn’t exist (e.g., the internet) ascertained? Which Founders are the most important? How are their views determined, since they frequently changed over time? If it is more a question of general public opinion in 1787, how is that ascertained?
4. THE RECONSTRUCTION AMENDMENTS: The Civil War and Reconstruction changed America dramatically. How does that impact originalism? Should the views of the authors of the three Reconstruction amendments be given the same weight as the original founders? If not, why not?
5. THE ROLE OF PRECEDENT: Is it appropriate to overturn precedents on which hundreds of millions of people have relied for many years? If so, when?
6. PAST CASES: Don’t just ask about Roe–ask about Griswold. It is more explosive, and will be harder for her to avoid, since there is no pending litigation on the subject. Was it correctly decided?
7. THE PROPER USE OF HISTORY: Heller is another good case to use as a basis of inquiry. The leading historians on the subject of the Second Amendment think Scalia (her mentor) cherrypicked his facts to support an incorrect partisan position. Why should we believe they are wrong? What assurance do we have that she won’t do the same thing?
8. THE PROPER ROLE OF THE SUPREME COURT: Is it the proper role of the Supreme Court to serve as a permanent roadblock to any proposed progressive legislation with established majority support among the electorate? Won’t the Court lose its legitimacy with the public if it does that?

THIS LAND AIN’T YOUR LAND

This land ain’t your land.

This land is my land.

From California

To the New York island.

From the redwood forest

To the Gulf stream waters.

This land was made for Trump and me.

By all accounts, Amy Coney Barrett is practically a saint in her private life. But consider the circumstances behind her nomination. She has been selected by an elected gangster, not just to serve as a prop for his re-election campaign, but for the purpose of tearing the country apart and ultimately providing an essential vote to keep him in office. When the Godfather gives you a job, he demands services in return. In his eyes, that’s the way the world works.

If you’re even a tiny bit sensitive, wouldn’t that make you just a little bit uncomfortable? Shouldn’t it? Does she want American blood, and the death of our liberal democratic system, as her legacy? Apparently, she doesn’t view that as a problem. It’s all about God’s will and the next world, not this one.

Maybe we should just canonize her and skip the Supreme Court part; it would work better for everyone.

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.