Testing Republican Loyalty on the Route to Dictatorship

June 22, 2020

My heart wants to talk about the momentous things happening in our country but the disloyalty of this president is too frightening to talk about anything else.

He keeps firing people who’re trying to follow the law. He’s stripping government of the people who protected us from disease, poison and catastrophe, from dangerous workplaces and frauds, leaving most of us with little ability to protect ourselves. We’re out of work, out of money and have lost control of many boards of elections. When does it become too much?

He’s allied himself with the most extreme racists, people who’ve little compunction at brandishing, intimidating, threatening the rest of us with their weapons. Who’s safe then?

FBI records have made it clear that the – I refuse to use the name they call themselves – but the alt-sickos he praises and incites are the same ones who have been responsible for the vast majority of domestic terrorism in this country. Some of you may be too young to remember Timothy McVeigh who carried out the Oklahoma City bombing that killed and injured nearly a thousand people including 19 children in a day care center. He came from the same sewer of hate. The alt-screwed up wing that Trump insists on encouraging has been the source of the mass shooters that have caused so much grief. They’ve united law-breakers with political enmity. The combination is deadly. Do we need more proof?

Encouraging violence, creating chaos and then posing as the savior is a path tyrants have followed all over the world to take power, and, gaining power, turned their followers loose on the population until everyone bows in feigned allegiance to avoid their own and their family’s arrest, rape and murder.

The other major path is to gain control of the military. Trump has been firing everyone inquiring into his misbehavior. He’s fired much of the top brass of the military for daring to say that the military must stay out of politics or otherwise stand up to him.

How far is Dangerous Donald trying to go? And what will happen to us if he gets what he wants?

If this president attempts to take over by force, who will stand in his way? Will the Senate be loyal to Trump or to America and the rule of law and democracy? Will the Army be loyal to Trump or to America, the rule of law and democracy now that he has been stripping responsible military leaders of their stripes? Will there be anyone left to say no and lead the troops against a presidential putsch? Is it too late for the Court now that they have authorized massive stripping of voters from the records? Will we stop this slide into tyranny before it’s too late?

To allow this President to take over the reins of power he believes are his, will erase all efforts to make this a more decent country. This is a real test of the loyalty of Republican Senators – to Mr. Trump, or to the Constitution that so many Republicans have so loudly proclaimed as if they alone obey it. Are they loyal to the law and its superiority over everyone, high and low, or are they devoted instead to the notion of impunity, that some people can do any damage they choose to other people, to our government and to America itself without facing justice. Frankly, I am guessing that we are going to see immense disloyalty to America and failure to insist that the president has an obligation to our country and not just to his own ambitions. If you could read the records of the Founders of our country, you would quickly discover that Trump is the man they were afraid of.

There is no second chance. Republicans must show their courage now or survive only in infamy.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 23, 2020.


Trump’s Second Amendment Hooligans

June 8, 2020

The pandemic has been making life quite difficult for many of us, but if we don’t figure out a way to deal with Trump’s invitations to violence things can get a lot worse.

Gun owners are not made in cookie cutters and the differences are large. I know lots of people who own guns and it’s never given me a moment’s concern. Many if not most gun owners are responsible and trustworthy. They are not killers and they’re not using their guns to play rough with people.

But there is a minority that believe that gun rights, or what Mr. Trump prefers to call Second Amendment rights, give them the privilege to threaten, intimidate and even kill to make things come out their way. Threats, intimidation and murder are not protected by the Second Amendment. They’re crimes. People who believe the Second Amendment gives them such rights are hooligans or terrorists, not responsible people who deserve anything but the insides of jail cells or loony bins. Those people are “deplorable.”

The statistics make clear that they’ve done more damage in America than the foreign terrorists we say we fear. Trump wants us to believe that there are, as he put it, good people on both sides, but White Supremacists account for the vast majority of home-grown terrorism in this country. And they reliably respond to his invitations, resulting in a very clear and present danger of violence and bloodshed.

When Mr. Trump told people to liberate Michigan with their Second Amendment rights, he was not suggesting that they keep their guns holstered or cased or even pointed at the sky. He was appealing to hooligans and terrorists to force the rest of us to do their bidding.

When Mr. Trump took office the Constitution required him to:

“solemnly swear (or affirm) that [he] will faithfully execute the office of the President of the United States, and will to the best of [his] ability, preserve, protect and defend the Constitution of the United States.”

Millions of Americans have taken oaths that we were

“not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence.”

In fact Mr. Trump is trying to overthrow it. A leading, so-called birther, he denied Obama’s right to the office though Obama was properly elected and behaved in a careful and thoughtful way for the good of all of us. By contrast, Trump uses the classic methods to try to overthrow the government by force and violence. Budding dictators encourage violence, create chaos and then pose as the savior to take over. When Trump creates a clear and present danger of violence by inviting gun owners to use their Second Amendment rights, they get the signal, and Trump relies on their lawlessness to put people in terror if they oppose him. Like other budding dictators who’ve called out the military against their own people, Trump called out a show of military force against domestic demonstrators to clear his path to a photo op in front of a Washington church and over-awe Americans with his control of the levers of deadly power. A would-be dictator, Mr. Trump is repudiating his American citizenship.

Guns owners who respond to Trump’s incitement are giving a very bad name to responsible gun owners, to owners who don’t use their guns and their votes to constrain political behavior like that. It’s time to take back the NRA from the unreconstructed Civil War rebels, terrorists, hooligans and their enablers who claim the protection of their guns and the Second Amendment in your name. It’s time to break the White House link with liars, hooligans, and terrorists.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 9, 2020.

REFERENCES:

New America Foundation, IN DEPTH, Terrorism in America After 9/11 https://www.newamerica.org/in-depth/terrorism-in-america/what-threat-united-states-today/;

Daniel Byman,  Right-Wingers Are America’s Deadliest Terrorists, Slate, Aug. 5, 2019, https://slate.com/news-and-politics/2019/08/right-wing-terrorist-killings-government-focus-jihadis-islamic-radicalism.html.

DANIEL MORITZ-RABSON, New NRA President Is Board Chair for Organization Managing Country’s Largest Confederate Monument, Newsweek, 4/30/19 AT 10:52 AM EDT – https://www.newsweek.com/nra-president-chairs-organization-country-largest-confederate-mounment-1409648

How the NRA went from a marksmanship group to a controversial political powerhouse. In his new book, investigative journalist Frank Smyth explores the group’s rise to favor, particularly under the Trump administration. By Hope Reese  Updated Apr 2, 2020, 11:00am EDT, The Highlight by Vox, https://www.vox.com/the-highlight/2020/3/24/21191524/nra-national-rifle-association-history-frank-smyth-wayne-la-pierre

 


Paying for the Virus

March 31, 2020

In his discussion of the financial consequences of the pandemic to New York, Gov. Cuomo has not mentioned that New York isn’t permitted to borrow the money it needs. The reason is a New York State constitutional prohibition. Many states prohibit borrowing except for capital expenses. When states were permitted to borrow for current expenses, they ran up large debts and the practice needed to be stopped. So, many state constitutions barred the practice. New York requires a law to be submitted to the voters for specific purposes. The Governor does not have the time to satisfy New York’s constitutional rules. For the moment, he’s stuck.

The same prohibition does not apply to the federal government. Economists understand that fiscal stimulus is an important tool for dealing with economic downturns. But clearly the feds have misused it, giving large tax cuts to the wealthiest people and corporations, cuts not used in any way to stimulate the economy but that did significantly increase the national debt. That was the kind of misbehavior that led states to take the power away.

This, however, is an example of a time where deficit spending is completely appropriate. Dealing with the virus is expensive. The feds have provided some relief though politics has affected who got what. But there is an additional problem – with a large part of the workforce ordered to stay home and businesses shuttered, there is a very large downturn in tax payments flowing to government. The federal government can borrow to fill that gap and it can provide relief to the states. But most states can’t help themselves. The result, as usual, is that this becomes another way for Republicans to force everyone to cut what they spend on services – in this case, because the big budget item is education, the feds are forcing states like New York to cut funding on schools. Whoopie – isn’t that great planning for the future.

The Federal Reserve is trying to stimulate the economy but chairman Powell has been very clear that the Fed cannot solve our problems because the financial system is not the main problem, not even close. There are supply side, demand side and income problems. The Federal Reserve’s tools provide little help on the income side. It’s a little too simple to say that the Federal Reserve has no fiscal powers because it can lend to the federal government, but it can’t force the federal government to borrow, or to put that in its budget. So unless Congress and the Administration decide that there is a need to help the states meet the costs of running their school systems and other necessary services, the states are stuck doing what Republicans always want them to do – cut their services to the people. If they do that, then rich folk won’t have to bribe their kids ways into college because only the rich will have kids sufficiently educated to go to college, and all the disparities in America will get even bigger.

Grabbing all the goodies for fewer and fewer people seems to be the dream of those who finance Republican campaigns, but I can’t see why any of the rest of us would accept it – unless Trump pulls the wool so far over people’s eyes that the people don’t understand that he and his Republican friends are using the epidemic to make most of us even worse off than we were before.

This commentary was scheduled for broadcast by WAMC Northeast Report, on March 31, 2020.


Political Dream Team

February 19, 2020

I keep hearing people who should know better, chattering about Democrats not having good candidates for the White House. Just the reverse, there are too many. In fact, each and every one is terrific. Except for primary rules that make them competitors, this would be the political Dream Team ready to wipe away all opposition as if it were the ‘92 Olympics.

 

Elizabeth Warren takes a deep dive into policy questions, driven to figure out what will do the most good for us. Bernie Sanders instinctively connects with young people and working people. Joe Biden and Amy Klobuchar work the room, so to speak, talking and connecting with people to figure out what works. People like Klobuchar, Sanders and mayors Pete Buttigieg and Mike Bloomberg have administrative experience. Bloomberg and Steyer are used to crunching numbers. And all strike me as having their values and ethics in the right place. I’d have said good things about some of those who dropped out too. Truly the party has had an embarrassment of riches, white and black, men and women, from rich and poor backgrounds.

The team has experience in business, finance, working with poor and minority groups, factory workers, farmers, the middle class and those of us we’ve been calling ordinary Americans. It has people rolling up their sleeves to deal with some of the country’s major problems now, not waiting until they get elected.

The problem is the scoring. Instead of giving each voter a single choice, bouncing their preferences against one another, Democrats might have done much better with forms of voting in which voters could list, in order, the candidates they’d support, so their choices could be added together to get the most widely admired candidates.

The Iowa caucuses went part way. They got everyone’s initial preference when they walked in. Then discussions winnowed that down a little. We never saw what would have happened if they’d had to get to 50% plus 1.

I’m not sure that voters are grouping candidates by their place on a spectrum from centrist to liberal rather than whether candidates seem like people they’d be comfortable with. But whatever, we wouldn’t have to eliminate candidates because they didn’t get enough first place votes and we could instead search for agreement on candidates that most of us could be enthusiastic about. A campaign like that could give us candidates who would happily become the Dream Team in office.

To be fair, it is one of the ironies of democracy that every voting system has its flaws. It’s pretty obviously too late to change this year – we’d have chaos if we did. And we might decide to try ranked choice voting on local elections before trying it out on the presidential primaries. Other systems, like cumulative voting, are better suited to legislative elections. There’s room for experimentation.

My major point is that it would be useful if we all started to think about our second choices. I think most of us would find that there’s a lot to like. I’ve had a first choice from the beginning, a woman I’ve met, like and admire. But if you asked me about my second choice, wow, there are a lot of good people and we’d be blessed with any of them – or with them all on the New Democratic Administration Team in one position or another.

— This commentary was scheduled for broadcast by WAMC Northeast Report, on February 18, 2020.


Too Liberal?

February 10, 2020

People claim Elizabeth and Bernie are too liberal, that their projects would beggar the country, so we can’t select them.

There must be something wrong with programs that have existed in Europe for decades. There must be something wrong and beyond our resources, with liberal programs, even though many corporate leaders support them.

Health care? The money is obviously there. People have been buying insurance forever. Employers have been paying for it for decades. And what they wouldn’t buy, the public has been paying for through emergency rooms. Let me explain the real difference. If employers pay their share through the tax system, they won’t have to worry about so-called employee benefits every time they hire someone. Even though corporations would pay about the same, the shift from a payroll expense to a public program would take the cost out of the calculus whenever business thinks about hiring someone. Or thinks about giving people a real job instead of a gig. Public programs help the economy flow. Many corporations understand that. Competition can be built in with a public option, for example. And small business would function much more easily. But false conservatives, playing on the fears of the public, don’t want to admit that they’re behind the logical eight ball.

Business could rarely get going if they had to build their own physical and social services. In fact business always wants the public to give them whatever they need. They don’t even want to build ballparks on their own dimes! But if they had to find and get water to their businesses and workers, or build their own electrical systems off the grid, or cut and pave their own roads, it would cost more and few could get started. They’d be stuck next to waterfalls like the old mills. But that’s what the fear mongers call socialism. And if they had to build all the physical and social infrastructure they need, they’d spend as little as possible and sacrifice the health of their employees. I’m not making that up – it’s the history of company towns that virtually enslaved employees, paying them in what was called company scrip. Complain and you lost your job, your home, and went into the world penniless, homeless and likely without your family as well.

Social investments protect our jobs and our freedom. Americans who know their history know that’s the world that President Franklin Roosevelt rescued us from with the New Deal by the end of the great depression. Some rich folk hated him for it because it gave most of us a chance at decent lives instead of slavery to corporate masters. Now that corporations are finding ways to take it back through the gig economy, outsourcing and union busting, we need to recreate the New Deal that gave us Social Security, unemployment insurance, the right to organize and that eventually led to Medicare. Far from being unsustainable, Americans had their best years since Roosevelt and the New Deal. And corporations too know that they can live with it because public programs give them the flexibility they want to add employees without the added expense of so-called benefits.

Too liberal? Don’t make me laugh through my tears at the ruin of the American worker.

— This commentary is scheduled for broadcast by WAMC Northeast Report, on February 11, 2020.


Is there a Future for Democracy in America?

February 4, 2020

I’ve been writing about gerrymandering and election law since I was in law school, long enough to feel very discouraged. When Anthony Kennedy didn’t take advantage of his last crack at gerrymandering while still on the U.S. Supreme Court, after having teased us for years about his willingness to deal with it, I was sad to the core of my being. Ezra Klein’s “Polarization and the Parties” which came out a week ago in the Sunday Times galvanized my thinking, if not my hopes.

Klein made it clear that the combination of gerrymandering, the allocation of Senate seats and the electoral college would soon leave 70% of America represented by 30% of senators and vice versa, and the electoral college will continue to “elect” presidents who have lost the popular vote. With the Supreme Court continuing to be shaped by those disproportionate advantages in the Senate and the executive, Republicans will continue to be able to stave off a more equitable representation in the House of Representatives. In other words, democracy will be a memory replaced by institutionalized minority rule.

Can we do anything about it? Klein points out that with their power resting firmly on these legal impediments, the Republicans will continue to fight fiercely against anything resembling democracy. Flipping control of the White House and Congress would certainly make a difference but would not change the electoral college, the Senate’s skew toward the least populous states or its grip on Supreme Court appointments.

There’s much talk about amending the Constitution, but that requires three-fourths of the states with the same unrepresentative dynamics to approve. So fat chance fixing the Constitution, whether by amendment or a convention as spelled out in Article V of the Constitution.

Then what? Our Constitution was adopted “illegally” by the terms of the Articles of Confederation. Could we do the same, create a new Constitution and specify, as the Founders did, how it should be ratified. That’s been tried on the state level but met an unreceptive Supreme Court. Could we expect better from this Court? And who’d count the votes? The existing and affected states or some nonpartisan entity? By what method or machine?  And who’d pay? Perhaps we should hire five thirty-eight.com to gather private polls. But we’d be mired in questions of polling methods and ethics.

Maybe we should have let the Confederacy go? Chucking Texas alone would make a big difference – although Texas is changing. Or maybe the coasts should secede. Those alternatives would leave us a smaller, weaker, country, subject to alliances with foreign powers against each other – the biggest fear and reason for action of the people who wrote and ratified our Constitution. Would such a split be like the former Czechoslovakia or the former Yugoslavia, which is to say a peaceful split or a bloodbath? Trump’s “base,” by the way, has been arming itself for that bloodbath for years.

Or maybe some of the 70% of us need to resettle with the 30% and change the country from the bottom up. But on that too, as we’d have said in Brooklyn, fat chance. I think that means that the more we care about the results, the more radical our views, the more we have to roll up our sleeves and work together that much harder on the elections, no matter which candidate becomes our standard bearer.

— This commentary was broadcast on WAMC Northeast Report, February 4, 2020.


Time to Fight Fire With Fire

November 19, 2019

We’re in the middle of a campaign about whether Democrats should nominate a centrist and reject people like Elizabeth Warren and Bernie Sanders, who understand who and what is hurting most people in America – citizens, middle class and struggling, guests, refugees, union members, farmers, and consumers – most of us. Elizabeth and Bernie are the reasonable ones while most others avert their eyes or hold their noses. Three cheers for reasonable, straight talking, clear-eyed candidates.

What should Congress do? Compromise isn’t possible. Republicans can’t even accept surrender if Democrats’ names are on it. Negotiation isn’t possible no matter how much Republicans blame their own intransigence on the Democrats.

Congressional Democrats need to take a page out of the Republican playbook to copy Gingrich, fight fire with fire and refuse to pass essential legislation, including the budget, unless it has everything Democrats stand for and need for the welfare of all of us. I’d insist on language that eliminates any and all judicial seats from the moment the holder dies or leaves – no more appointments for Trump no matter when the election, no more judges who refuse to deal with the unconscionable ways that corporations eviscerate the lives of honest, hard-working people. Unconscionable, by the way, is a legal term that judges refuse to use when ordinary people are being shafted.

What will it do in the presidential campaign? Energize the party. It’s time Democrats stopped gagging themselves to stay closer to the middle, allowing the so-called “middle of the road” to drift further to the wrong, further away from what reasonable, real people need.

We need to stand up for each other, for our friends and our neighbors, for people who care for America, who actually believe in the Declaration of Independence and in the ideology of America, not the weakened and destroyed America that Republicans at the racist, billionaire and Tea Party tables happily let crumble. It’s time to show we really care about the harm that Trump and his lackeys are doing and stop it. No compromise with hatred, racism and the corruption of a selfish official with an ego so weak that he can’t stand truth and resorts to calling everyone else fakers, from scientists to journalists.

Tax cuts for the wealthy are obscene – their tax rates are already a fraction of what they were in America’s most productive times. So-called entrepreneurs don’t stand on each other’s shoulders – they stand on the shoulders of a government that created or financed the most important advances of modern life, from medical discoveries to the internet and the GPS system before making it available to private firms. No, we cannot have a decent or fair country if wealthy egotists can’t stand the idea of paying for decent public education. Yes, we can provide health care for everyone like most of the free world. Yes, we can rebuild our country’s infrastructure before it crumbles and takes America down. No need to worry about the billionaires and their crocodile tears about misnamed “entrepreneurs” who don’t need the rest of us to take care of them and don’t use their tax breaks to create jobs.

It’s time to stand on principle. And let’s be clear – principle is attractive and inspiring. We can help everyone from farmers and miners to doctors, teachers, nurses, truckdrivers and food service workers. It’s time for all of us to stand up for each other and show the selfish rich and their enablers what decency and principle really look like, while we show them the door out of Washington and the state capitals and send them to places where they can live the lives of refugees.


Problems Proving Obstruction and Conspiracy

April 2, 2019

Two statutes add to the many issues that complicate the status of Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

One defines obstruction of justice as “imped[ing] the due administration of justice.”[1] It has been treated as necessary that one have specifically intended to obstruct a proceeding. One can prove that someone like Trump intended to impede justice either by statements of intent or actions that make it obvious. Obstruction is about such things as Trump’s dismissal of Comey and urging an end to the investigation. It would have been cleaner if Trump had recused himself from the investigation. But he didn’t dismiss Rosenstein or Mueller or order either Comey or Sessions to end the investigation, only encourage them to. Was that enough? It probably would be if you told a police officer to get lost. But, even though Congress is not limited by the same rules of evidence, Supreme Court decisions about evidence of intent will complicate things. Let me come back to that in a moment.

A second statute makes “[A]ny conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . .” a violation of federal law.[2] Participants must agree, intend, and do something to further the conspiracy. Once again, intent might be proven by explicit statements, or by actions that make it obvious.

The Supreme Court, however, is not a friend of the obvious. It ratcheted back the law of conspiracy in an antitrust case saying that it is not enough to show that two people or companies acted as if they were acting in concert. The Court wants something closer to an explicit statement or admission.[3]

The Court doesn’t like to infer intent from behavior, except for infering intent to favor African-American efforts to equalize their opportunities with those of whites. The Court decided that many electoral district lines were unconstitutional racial gerrymanders in favor of African-Americans based on the shapes of the lines, even where the more obvious purpose was political gerrymandering which, to this day, they refuse to condemn.[4] But the Court resists finding that white officials disadvantaging minorities did so intentionally.[5] In one case they would not even get to the evidence, writing that such discrimination by high public officials was “implausible.”[6]

Intelligent attorneys would stop short of explicit statements or admissions. Politicians and criminal conspirators often make agreements based on unstated understandings. Trump came much closer to the brink than an intelligent lawyer would have. But notice the absence of any explicit quid pro quo. There’s no “release the recordings, Mr. Putin, and we’ll deliver the EU.” There’s no “let us help you violate our laws to get information on the Democratic National Committee or candidate Clinton.” It wasn’t even in the form of requests that they do some illegal things in the U.S. Instead the evidence we know about was all encouragement – saying that would be great, we hope Putin does it, or we predict he will. Trump’s statements are not explicit. Lawyers recognize that circumstantial evidence is often the most reliable but this Court thinks big shots and major corporations should be protected from it. Here, the evidence we know about is ambiguous – does it indicate a joint endeavor or simply knowledge of Putin’s actions?

The strength of the evidence will depend in part on whether Congress is willing to ignore the Court. In other words, the U.S. Supreme Court had its favorites and its scapegoats even before Trump’s appointments made it worse. None of that makes Trump blameless but it does mean that there will be battles over the evidence if there is any attempt to impeach.

— This commentary was broadcast on WAMC Northeast Report, April 2, 2019.

[1] 18 U.S.C. § 1503, 1505 and https://www.law.cornell.edu/wex/obstruction_of_justice.

[2] Hass v. Henkel, 216 U.S. 462, 479-480 (1910).

[3] Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

[4] See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996).

[5] See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); and see also League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part).

[6] Ashcroft v. Iqbal, 556 U.S. 662 (2009).


Environmental Change and The Campaign Season

March 5, 2019

I’d like to start this campaign season by stating one of my primary objectives. Climate change is the rare major problem that has been warning us so that we could have had plenty of time to deal with it. Now in a film titled The Human Element, which is available on podcast, photographer James Balog shows global warming in time lapse photography.

But actually knowing what is going on seems to be a liability. Gore actually knew. He looked deeply into the issue of global warming and he understood. But the public reaction was horror – at Gore. He wasn’t like us. He knew stuff. In the first debate, Bush disposed of one of Gore’s points with a sneer, just calling it “fuzzy math.” I concluded on the spot that Bush was a bully. The American public apparently concluded that they couldn’t share a beer with someone who understood math. They judged sincerity as similarity – if he’s like us he’s sincere. So, if we didn’t study stuff, the president shouldn’t either. God. Try that for your choice of doctors. People got what they deserved except that they dumped it on the rest of us too.

Obama did know what he was talking about. Some of us loved him for it. Others were turned off because a Black man presumed to tell the rest of us what was going on – even if it was a loyal and dedicated Black man trying to save the rest of us from the hell we’re wandering into.

Hillary knew what she was talking about. She spent her life preparing for public office, not going to campaign methods and finance school but studying the public issues a president has to deal with for our sake. But her dedication to serving us, the people, was her apparent undoing. The guy or gal down the block doesn’t do that. So, she must be snooty because she knows stuff and proudly spent her life learning it for us. How bad is that?

Learned Hand, one of the great judges in our history wrote that elections are very hard to know enough about. I want presidents, senators, representatives and members of the Administration who have spent the time to know what they are talking about so that we don’t all fall off the cliff together, pulling our families off that cliff with us. This isn’t about my ego. It’s about survival.

Sincerity means to me that the candidate wants to take care of us, our health, our future, all of us.  Yes, experts disagree, and I spend some of my effort doing this commentary to distinguish between experts who have it right and those whose heads are screwed on backwards. But understanding issues is essential. Beyond what we can figure out ourselves, we have to be able to talk with experts who do understand. Lawyers have to do that all the time, from working with doctors to understand injuries to working with economists to understand how much money will have been lost. Expertise matters. Even to be able to talk with and explain the experts, one has to prepare. How better than by spending the time, energy and midnight oil to get things straight?

In this presidential campaign season, I want candidates who care enough to figure things out. Most important I want candidates who understand the urgency of dealing with climate change. And who build ways of dealing with the dislocations of capitalism by building their solutions onto the opportunities created by effective solutions to climate change.

— This commentary was broadcast on WAMC Northeast Report, March 5, 2019.


The Supremes Are Already a Partisan Court

October 30, 2018

The violence of this election season is heart-rending, outrageous and dangerous, but so many of us have been predicting and warning about I’m at a loss for words. So, instead, I’ll turn to what I had planned for today.

Chief Justice Roberts told people at the University of Minnesota that the Supreme Court will serve “one nation,” “not one party or interest.” The judicial branch, he said, “is, must be, very different” from the political branches. He commented that the justices have a century-old tradition of shaking each other’s hands before taking the bench to hear arguments. “It’s a small thing,” Roberts said, “but it is a repeated reminder that … we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” In fact, this Court has already become very partisan, Roberts’ sugar-coating to the contrary notwithstanding.

The Constitution, by the way, calls them judges, not justices, perhaps because we don’t always get justice from judges. Judge Kavanaugh’s rant and assumption that the Clintons were at the base of Dr. Ford’s allegations reflected his deeply partisan career. Whatever happened between Judge Kavanaugh and Dr. Ford, assuming a Clinton conspiracy in the absence of facts is the very definition of prejudice. That’s become standard Republican behavior – if they don’t like the facts, they just claim a conspiracy. That alone makes it impossible to believe Democrats will get justice from Kavanaugh.

The problem goes much deeper. The Roberts Court has done everything possible to make sure that Republicans control government, regardless of the will of the people. Republican gerrymandering of legislative seats built large victories in the House of Representatives and many state legislatures while the voters were turning against them, thus reversing what the public voted for. That’s why they did it. But the Roberts Court protects their gerrymandering.

The Roberts Court eviscerated the Voting Rights Act. Witnesses testified about continued efforts to close or move polling places, put fewer polling booths in Democratic than Republican areas and strike large numbers of legitimate but likely opposition voters from the registration rolls. The enforcement provisions of the Voting Rights Act were actively blocking those efforts. The Roberts Court turned that on its head: because those provisions of the Act had been working, they weren’t necessary any more – a non sequitur any elementary school child would have understood.

The Court stripped voting rights from people who lacked government issued photo ids despite the costs to some voters, in wages and fees, to get the documents required. States could have eased those burdens except that the point was to prevent legitimate voters from voting, to make it harder for the disabled and the poor to vote, all in the absence of any evidence of relevant voter fraud. Election specialists have pointed out in vain that mailed and computer voting present much more serious problems. But state legislatures addressed neither of those problems. They were intent, instead, on stripping rights only from voters they expected to vote for the other party.

And the Court flaunted its political partisanship in cases like Citizens United, by freeing corporations to use their enormous resources in politics, while stripping political resources from unions who represent the factory workers and other regular people who are suffering now.

There’s nothing even-handed about all that. It’s a direct attempt to take the power away from the people and hand it to Republicans, who are otherwise losing the support of the public. There’s nothing legitimate about rigging elections.

Republicans warn that Democrats, if they win, might politicize the Court. That’s a joke. Republicans have already politicized the Court. If Democrats succeed in restoring the balance, that will be a big blow for a fair court. That’s why all our votes matter.

— A version of this commentary was broadcast on WAMC Northeast Report, October 30, 2018.


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