The “Caravan”

November 13, 2018

Only Trump could turn a line of destitute and terrified people walking thousands of miles in hopes of finding safety in the America that all admired until recently, into a caravan of desperados bent on breaking laws, robbing, stealing and raping Americans.

Actually that’s wrong – the last time I know of was when Gen. Douglas MacArthur ran the bonus marchers off the mall in Washington, D.C. The bonus marchers were veterans of World War I, trying to survive the Great Depression. They came to Washington to petition their government to give them their promised World War I bonuses a little early, since they were desperate and destitute. Disobeying orders, MacArthur ran them off. MacArthur disobeyed four presidents until Truman finally fired him for insisting on widening the Korean War into China.

But the Bonus marchers and the Caravan both remind me more of John Steinbeck’s Grapes of Wrath – farmers who lost their lands to the banks after drought, the dust bowl and the Great Depression made it impossible to farm or earn a living in those farming communities. They joined a sad and sorry march from Oklahoma to California. They were farmers, not thieves or rapists. But they were vilifield as beggars. Oakies, originally meaning from Oklahoma, became an epithet. To the loss of their income, the loss of their farms, often the loss of their families, they now added the loss even of human empathy. Cold and hungry, the migrants gathered in shantytowns they called Hoovervilles, named for the president in office when the Great Depression began. They lit fires in steel drums to keep warm. I wish Steinbeck had written a sequel. He described great suffering and often death. Yet some percent of them survived and eventually melded into the population of California.

I thought we had outgrown demonizing the homeless and destitute, but not Donald Trump.

I thought we had outgrown running off the homeless and destitute like vermin, but not Donald Trump.

I thought we had learned that the problems of massive unemployment are not the workers’ making, but not Donald Trump.

I thought we had learned that farmers who’d lost their lands, shopkeepers, factory workers and miners who lost their jobs, were decent people suffering from forces beyond their control, but not Donald Trump.

Come back John Steinbeck and remind us all of our humanity.

Come back Franklin and Eleanor Roosevelt and show us how to care for our fellow human beings and build a better world out of love and compassion.

Come back America and show a large heart to each other and to the cold and desperate trying to reach the safety of our shores.

We can do it. There is no economic reason why we can’t. We could get to work rebuilding our infrastructure and make plenty of work for everyone. This is America. Si se puede; yes, we can and be stronger for it.

— This commentary was broadcast on WAMC Northeast Report, November 13, 2018.

 

 

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Kavanaugh on Investigating the President

October 9, 2018

Brett Kavanaugh is now supposed to be called “Justice Kavanaugh.” The Constitution refers to members of the Supreme Court as judges. Whether the term “justice” will be appropriate depends entirely on his behavior. Of that I am doubtful. I think there was no justice for Dr. Christine Blasely Ford.

There is strong evidence that Kavanaugh will solidify a majority for repealing a half century of progress on voting rights, women’s rights, gay rights, anti-discrimination law and protections against our becoming a police state.  Kavanaugh invariably parried questions about his views with recitations of prior law, showing only that Kavanaugh could explain the cases, but never denying his likely impact.

Nevertheless, Trump and his Senate sycophants would have nominated and confirmed someone equally damaging to American law. More ominous are Kavanaugh’s views about whether it is OK to investigate a sitting president.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. That suit was dismissed because it didn’t claim Clinton violated the law. It was brought, however, for purposes unrelated to the suit, namely to enable fishing expeditions on Clinton’s behavior. That’s called abuse of process.  Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. In those days Republicans were puritans.  Kavanaugh pursued Clinton with gusto.

Then, with Bush in the White House before the election of President Obama, he told an audience at Minnesota Law School, that he had changed his mind. He wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So Kavanaugh concluded that there were good reasons not to sue sitting presidents. He added that impeachment was always available. Left unsaid, however, was that to be more than a partisan political tool, impeachment must rest on investigating to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and support that country’s interests in exchange for putting Mr. Trump in the White House. The Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, Trump’s selection of a judge who doubts the legitimacy of investigating a sitting president strengthens his attacks on the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But we don’t allow people to be judge in their own cause. What we already know about the Trump campaign justifies a deeper look. And Trump’s effort to control the investigation can amount to impeachable behavior. For Democrats to take back the Court, the law and the cause of justice, they will have to defeat Kavanaugh’s senatorial supporters and elect a Congress prepared to prevent presidential abuse. In other words, the battle isn’t over and the stakes just got larger.

— This commentary was broadcast on WAMC Northeast Report, October 9, 2018. This is a revised and updated version of commentary originally prepared for broadcast on September 18, 2018, pulled because of the Kavanaugh hearings, rescheduled for September 25 but pulled again at the last minute because of new developments in the Middle East. The earlier version was posted here.

 


Kavanaugh

September 18, 2018

Brett Kavanaugh no longer seems a shoo-in for appointment to the Supreme Court. Kavanaugh has now been accused of attempted rape. Let’s be clear – there has never been a time when rape was just juvenile misbehavior. Rape is and has been a crime for centuries. Nevertheless, I doubt this president will make a better nomination, a point Akhil Amar, an old friend on the Yale Law faculty, made eloquently on these airwaves recently. If the Republicans can put another person on the Court, whoever it is will solidify a majority for repealing a half century of progress on social, procedural and political rights, repealing gay rights, women’s rights, anti-discrimination law and a host of protections against our becoming a police state.

Beyond the question of who Trump’s nominee is or will be, the larger question for both the Court and the country is the impact on the November congressional elections. Control of Congress is crucial not only for its legislative output, but also for eventually retaking the Court.

At the hearings, Kavanaugh invariably responded to questions about his own views with descriptions of prior law, showing only that Kavanaugh could explain the cases, which no one doubted. More interesting were his shifting views about whether it is OK to investigate a sitting president. It seems pretty clear that he believes it’s a bad idea to investigate and prosecute sitting presidents outside the impeachment process. But he hasn’t told us whether it is unconstitutional.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. The civil suit brought against Clinton was eventually dismissed because it did not claim Clinton violated the law. That suit, however, was brought for purposes unrelated to the claims in the suit, namely to conduct fishing expeditions on Clinton until they found something that might be illegal. That’s called abuse of process.

Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. The Republicans went after Clinton because it was sex and in those days Republicans were puritans.

Kavanaugh eventually wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So he thought there were good reasons not to sue sitting presidents. But he did not slam the door shut. He expressed no view on the constitutionality of investigations or prosecutions. And he commented that there was always impeachment, which, if it is to be more than a partisan political tool, must be based on investigation to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and to support that country’s interests in exchange for putting Mr. Trump in the White House. Whether or not a president can be prosecuted while in office, the Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, for Trump to nominate a candidate for a crucial vacancy on the Supreme Court who doubts the legitimacy of investigating a sitting president, looks a lot like deliberate interference with the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But Trump’s efforts to control the investigation of his own behavior, making him the judge of his own case, offends a sense of justice. And that is directly relevant to the November elections. This president must have a Congress which is prepared to serve its constitutional function of preventing presidential abuses of power.

— This commentary was scheduled for broadcast on WAMC Northeast Report, September 25, 2018, but pulled at the last minute because of new developments in the Middle East.


The Moral and Legal Meaning of Failing to Deal with Climate Change

August 30, 2018

I often wrestle with how gentle or how strong to come on. To get everyone’s support on climate change, I want to come on gently. But climate change is so big, urgent and underappreciated that I want to come on strong.

The experts tell us that we can make a big difference. We can take steps that will really slow down and even stop climate change beyond what is already inevitable. But nothing will happen by itself. The economy won’t automatically stop selling carbon-based fuels that produce greenhouse gasses. Government is necessary to do that. Without government coordinating our efforts, each of us individually make only a small difference and we can defend our bad choices by pointing out that it’s legal. But with government coordinating the move to more climate friendly products and methods, we can make a big difference.

Unfortunately, the current Administration is fighting against rules designed to reduce greenhouse gasses. It is rolling back automobile emission and engineering standards that would significantly reduce greenhouse gasses that we produce. The transportation industry produces a large part of greenhouse gasses so real progress requires action among auto manufacturers. But with the Administration working to roll rules back, auto makers say they’ll just wait and see. Meanwhile, Americans buy the largest vehicles they can afford. Progress on sedans gets wiped out by the market for SUVs, trucks and HUMVEEs. One way to control the impact of those market choices is to retain, not roll-back, those emission rules. Another is to introduce greenhouse gas taxes. Government is a necessary part of any real effort to control global warming, for ourselves, our children, grandchildren and posterity.

Failing to act against global warming will increase the worldwide refugee flow which many Americans fear, and turn many Americans into refugees in our own country, from the coasts and the great Midwest Mississippi River basin the where people will be forced to leave their homes and push into places ill-prepared to house, feed and employ them. Failing to act against global warming will magnify the onslaught of tropical illnesses on Americans who are ill-prepared to deal with them. Failing to act against global warming will send our parents to early graves in heat waves that stress their hearts.

The law makes a stronger point that reflects the stakes in global warming. Intentional, premeditated, criminally negligent or reckless killing of one or more human beings is murder.

The lowest form of murder is involuntary manslaughter. An unintentional, involuntary killing is nevertheless manslaughter if it was inherently dangerous or was done with reckless disregard for human life, and the defendant knew or should have known the conduct was a threat to others’ lives.

Does that fit the people who are tearing down the rules to slow or stop global warming and other forms of climate change? We know that climate change will kill many people, in this country and all across the globe. We know that greenhouse gasses from burning carbon-based fuels is heating the earth and additional burning of carbon-based fuels will heat it more. In other words, burning carbon-based fuels is inherently dangerous – it will kill people. The impact of government rules on death and survival is very clear. That will certainly bubble up in lawsuits. But the law also reflects powerful moral conclusions well worth thinking about.

— This commentary was broadcast on WAMC Northeast Report, August 28, 2018.

 


Trump’s Claimed Strengths Are Empty Boasts

June 25, 2018

Trump’s behavior offends liberals’ deepest values. They are aghast at his having babies ripped from their mothers’ hands and sometimes even their breasts so their mothers can be hauled away to immigrant detention centers without their infants and children. Liberals were distraught by Trump’s neglect of Puerto Rico after Hurricane Maria, and they attack the Trump Administration for systematically unleashing corporate abuse of workers, consumers and those of us downwind or downstream the poisons they unload. Liberals condemn Trump’s preference for trade wars over respectful treatment of long-time allies like Canada and the E.U., with which the U.S. had fruitful trade relations. And they deeply resent his attack on the fundamental values on which American democracy was formed: his encouragement of racism, and his preference for dictators, among many others.

I think Trump is also vulnerable to a very different criticism, that his so-called strengths are empty boasts revealing a naked emperor beneath. Trump claims great negotiating skills. He told us that his real estate experience demonstrated the negotiating skills that he would use in office. But it’s an empty boast.

In office he hasn’t even been able to work with his own party. Their only significant legislation was the tax bill at the very end of the year, and his other legislative success has been getting some of the most embarrassing nominees confirmed. Otherwise he hasn’t been able to reach agreement with his own party on immigrants, and on DACA, or Deferred Action for Childhood Arrivals. In many areas he has had to act by executive order because he can’t agree with Congress despite Republican control of both houses. But Trump says he is a great negotiator.

Just back from a meeting with Kim Jong-un, Supreme Leader of North Korea, Trump boasts of a record breaking agreement to de-nuclearize the Korean peninsula. There is however no language of agreement to parse, no details, no schedule, no promise that wasn’t made to prior American presidents, no agreement on inspection or verification. What he got instead was a photo-op. In other words, he has produced much less than President Obama got from Iran in an agreement Trump has repeatedly denounced. But Trump says he is a great negotiator.

Obama’s pivot to Asia produced the Trans-Pacific Partnership, a multi-national agreement among countries ringing the Pacific: Australia, New Zealand, Malaysia, Brunei, Singapore, Vietnam, Japan, Chile, Peru, Mexico, Canada, and United States. When president Trump pulled us out, the others continued to work together. There were objectionable pro-business provisions in the agreement but Trump made no effort to improve them. Instead, he removed the U.S. from the negotiations and the agreement, and facilitated China’s increasing dominance in the pacific region. Still, Trump says he is a great negotiator.

Mexico has not agreed to build a wall, as he promised. Trump unilaterally imposed tariffs on some imports saying they would protect American business and that there would be no trade war, but there already is.  The international response to Trump’s tariff increases has been retaliation both from former allies, like Canada, Mexico and Europe, and from adversaries like China. There are no countries left to join us to bring pressure on countries causing problems. The last time this kind of tariff contest roiled international waters was in the late 1920s, giving way to the Great Depression and to World War II. But Trump says he is a great negotiator. Thank you, Mr. Trump.

Trump’s claim of negotiating skills is an empty boast intended to conceal his weakness, his unwillingness to negotiate and complete incompetence at it. His lack of skill is a scandal.

— This commentary was broadcast on WAMC Northeast Report, June 19, 2018.


Whitford v. Gill

June 19, 2018

Commentators have treated the Court’s decision in Whitford v. Gill, the Wisconsin gerrymandering case, as just a technical decision, a delay in getting a substantive decision out of the Court. They’re nuts and I’m furious.

Roberts, the current Chief Justice of the Supreme Court, is stalling for time. Time serves the Republicans in several ways: the most likely and immanent resignation is from Justice Kennedy who is the weak link in the conservative justices’ opposition to doing anything about gerrymandering; the oldest member of the Court is Justice Ginsburg and she is reliable in demanding equal protection in voting arrangements; replacing either of those justices while Trump is president would give Republicans a solid 5-vote majority in all elections cases and just about everything else. It would lock in the Republican majority. Roberts is trying as hard as he can to lock in Republican victories at all foreseeable elections, after famously telling the Senate at his confirmation hearings that he was merely an umpire calling balls and strikes. Umpires like that should be fired.

He also unleashed another ploy that people did not understand. By insisting that standing – a technical term for the right to sue – has to be asserted by plaintiffs based on their specific districts rather than statewide to challenge inequality in voting arrangements, he actually tried to shred plaintiffs’ proof. The best explanations of what gerrymandering is follow what the people who draw the lines actually do – they try for the best and most reliable statewide partisan vote for their party. But Roberts says that’s not justiciable. He wants proof for each district in which the voters votes are wasted and their voting power is diluted. But the basis of the dilution claim is precisely the equal protection comparison with all the other districts. If that is out of bounds, plaintiffs are entitled to take a walk to the outhouse.

But, a lawyer writing friendly-seeming language so that people will not understand how badly they are being affixed by a threaded metal fastener to the wall of defeat, Roberts makes it sound like they can just sharpen their presentation and then all will be just fine. Roberts should be impeached as unworthy of the robes of justice.

I’d go further. Many scholars have argued quite convincingly that over its two-and-a-quarter centuries, the U.S. Supreme Court has done much more harm than good. Some of us nearing the end of our careers happened to start practice at a time when we did have a people’s Court, a court that believed in equality and ended segregation, a court that believed in democracy and ended malapportionment, a court that believed in accurate fact-finding and tried to end abuses in the system of so-called criminal justice. But that Court has gradually slipped out of reach until the present Court has become an apologist for the abuses of the rich and the powerful, giving corporations the power to shred the rights of employees, customers, neighbors and political opponents.

So I think it’s time for some constitutional amendments that would really make a difference

  • End the electoral college in favor of voting for president by popular vote, ending the reign of minority presidents like Trump – unless the courts still manage to protect underworld control of elections
  • End the treatment of corporations as legal persons and let them face the regulatory ax
  • End gerrymandering and put an end to control by judicial partisans who shred the meaning of both equality and democracy
  • And, my favorite, an amendment to delete Article III and abolish the so-called Supreme Court – I’d like to see Roberts homeless, without a job, a robe or any of the respect due a decent person.

  This commentary was broadcast on WAMC Northeast Report, June 19, 2018.

 

 


Stop Dumping All the Risks on Blue Collar Workers

June 5, 2018

I have been thinking about all the blue-collar workers who believed that Donald Trump would do a great deal for them.

We often talk about the risks that entrepreneurs face but capitalism does its best to outsource risk to blue-collar workers. If there are environmental problems, poisons in the air or water, blue-collar workers and their children will be the first to become sick – they are the canaries in the coal mines. But the irony is that they are also the first to be affected by any attempt to remedy the situation. Prohibitions may force their workplaces to shut down or lay them off.

Liberals often respond by saying that new methods will create jobs. But blue-collar workers have good reason to assume that any jobs created will probably be for other people. Liberals also argue that the proper method for creating jobs is with public works, renovating American infrastructure, etc. But who’ll get the infrastructure jobs? And even more important, no one has been able to promise those jobs. Obama tried but Congress blocked much of what he wanted to do. Trump promised a huge infrastructure program but he put it in the budgets of the states, not his own budget. In effect American politics has not been able to deliver on that jobs promise for the people whose jobs are at risk.

Other relief programs are more automatic: Except for Puerto Rico, we regularly protect people flooded by major storms even when they should have known better than to build on flood plains. The farm program, whatever its shortcomings, protects farmers with formulas that can be calculated in advance. Unemployment insurance is statutory but often grossly inadequate. Social security and Medicare have been reliable though they have become political footballs. Obamacare still exists despite Republican attempts to kill it. But you can’t feed and house a family on medical care. The earned income tax credit comes annually after April 15.

All of this suggests political winners and losers – we like some folks and we don’t trust others with whatever we might do for them. Government has not been willing to become the employer of last resort, so that there are always jobs and wages, although some candidates are urging it now. A negative income tax has been deemed too expensive. And Trump has spent huge tax dollars on enriching the super rich instead of reducing or eliminating the payroll tax in order to encourage hiring more workers for jobs that pay well. There’s lots that could be done if we have the will.

The result is that our political system has not been willing to care for workers. They are not the only ones our politics has left to hang in the breeze. Our unwillingness to insist on decent, honest and ethical behavior for everything from payday lending to mortgage loans, from manufacturing to toxic waste, leaves masses of people at risk, unable to protect themselves or their families.

We need statutes that protect all workers when employers reduce their workforce. Protections need to be reliable so that people don’t have to fear for their jobs when they demand safe working conditions and decent contractual terms that don’t shift all the risks to the people who are most vulnerable and least able to protect themselves. We need reliable worker protection so that people needn’t fear for their jobs when we demand safe products and safe byproducts of business activity. We need to rethink how we protect American workers so that they don’t become the losers whenever we try to improve the American environment and working conditions for everyone.

— This commentary posted by WAMC on their website on June 5, 2018 but the audio was pre-empted by the Pledge Drive. It was broadcast in its usual spot the following week on WAMC Northeast Report, June 12, 2018.


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