Don’t Seat Them

Elections have consequences, intended and unintended. Into the morass of post-electoral fire-breathing and pearl-clutching comes a resolution introduced by Rep. Bill Pascrell (D-NJ).  Relying on the Constitution — which the MAGA crowd claims to revere — Rep. Pascrell has a simple proposal to deal with the 126 House members who signed on to the bogus Texas lawsuit: Don’t seat them in the next Congress. Section 3 of the Fourteenth Amendment says, in plain language, that they are ineligible to serve in federal office. Elections have consequences, after all. And those who would subvert our elections should pay a price.

The message to Democrats should be: Ignore the inevitable and insincere wailing about “persecution for political beliefs” that will follow. Don’t seat them. Ignore the tortured justifications for the over fifty lawsuits brought by the Trump campaign or its water carriers: there is no legally or judicially cognizable case and your complaints have been summarily dismissed by every court that has heard them. “We have a right to be heard in court” is not an excuse for willfully wasting time and money. It’s not a lost cause, and certainly not a noble one. It is an attempt to subvert democracy itself and install a permanent government of plutocrats and autocrats. Elections have consequences.

Republicans, we should note, are fond of repeating that elections have consequences. But let’s be clear: when Mitch McConnell piously intones that phrase, he means only the elections that keep him in the Majority Leader’s chair. The elections, in other words, that enable him to stymie legislation so desperately needed by the people of the United States — such as a second COVID relief bill that would enable people to pay their rent and put food on their tables; that would keep small businesses afloat and people employed; that would ensure sufficient PPE for health care workers, that would help the country get through the next perilous year with the coronavirus. But instead of useful legislation he peddles lie after lie after lie. “Compromise,” to McConnell, means, “Come meet me where I stand, while I keep walking backwards.” The House passed a $3 trillion relief bill; McConnell wanted half that; House negotiators moved to $2 trillion and McConnell wanted half that; now the bill on the table is $900 billion, and passage is in doubt. Politics is the art of the possible, but McConnell cynically moves the goal posts and then blames his Democratic opponents for failing to compromise.

Democrats, you have been playing the GOP’s twisted messaging game for a generation. Take charge, explain in plain language what is going on, and exact a price for the GOP’s sedition. Don’t seat them. Change the game, and make new rules. People will notice; you might even improve your majority. Elections have consequences, right?

Enough, Already

Seriously, enough. Enough of the frivolous lawsuits, the fraudulent claims of fraud, the fact-free fits of faux outrage. In the five weeks since Election Day, we have seen the same play fifty times: the Trump campaign screams about nonexistent fraud and sues to have election results reversed; absent any actual facts and any plausible legal theory which would allow the disenfranchisement of millions — for no reason other than the litigant doesn’t like the election result — the court summarily dismisses the case. Trial courts will have none of it; appellate courts won’t allow it; and the United States Supreme Court refuses to hear the case.

In the latest episode of this outlandish opera buffa is brought to us by the state of Texas, which wants to sue the states of Wisconsin, Georgia, Pennsylvania, and Michigan in the US Supreme Court. What possible cause of action might Texas have? Ken Paxton, the Texas attorney general, has concocted the notion that these four states somehow damaged the Lone Star state when they changed their election rules to allow universal mail-in ballots — something which Texas surely could have done, as well, but chose not to.

Per The New York Times:

The lawsuit, filed by the Republican attorney general of Texas and backed by his G.O.P. colleagues in 17 other states and 106 Republican members of Congress, represents the most coordinated, politicized attempt to overturn the will of the voters in recent American history. President Trump has asked to intervene in the lawsuit as well in hopes that the Supreme Court will hand him a second term he decisively lost.

The suit is the latest in a spectacularly unsuccessful legal effort by Mr. Trump and his allies to overturn the results, with cases so lacking in evidence that judges at all levels have mocked or condemned them as without merit. Legal experts have derided this latest suit as well, which makes the audacious claim, at odds with ordinary principles of federalism, that the Supreme Court should investigate and override the election systems of four states at the behest of a fifth.

Of course, there will be no end to this farce: it has proved far too profitable for Trump, for whom a debt load of about $420 million comes due in the next year. Since Trump almost certainly hasn’t the cash, isn’t capable of writing a book worth a nine-figure advance, and has spent his 74 years avoiding spending his own money when grift and suckers are available, he has turned his electoral loss into a fundraising opportunity: donations to his “stop the steal!” fund are directed, in essence, into his own pocket. His credulous supporters don’t read the fine print and won’t believe anyone who has.

That the demands to invalidate the electoral results require a feat of dizzying mental gymnastics, cognitive dissonance on a scale rarely if ever seen, doesn’t seem to bother these self-styled defenders of democracy one whit. Consider: the election was rife with fraud on a massive scale, but only on the top line of the ballot. All the down-ballot races — races which the 126 members of Congress now clamoring for SCOTUS intervention won — were magically legitimate. It defies law, it defies logic, and it defies any real sense of patriotism, which would put country over party and long-term civic goals above short-term self-interest.

That this suit is without merit (and beyond redemption) hasn’t stopped Republican attorneys general of seventeen other states from seeking to join the fun — despite the irrevocable certification of election results in all fifty states. This is an unabashed attack on the core and fabric of democracy; it is, in a word, seditious: We don’t like the result so we must find a way, any way, to undo and overturn it. And if we can’t do that, can we at least undermine public confidence in all electoral outcomes? (We don’t care if it undermines our own victories as long as we can seize power and maintain control of the levers of government.)

This is not representative self-government. It is reprehensible self-serving. Enough, already. Republicans, you lost. Sit down, shut up, and muzzle your Dear Leader. He is doing the Republic great harm — and you, too, if you gave a care to history.

Pearl Harbor Day

As I have noted before, my father was at Pearl Harbor. More exactly, he was in the Army and based in Honolulu. The most he ever said about it was, “I was AWOL on Waikiki Beach.” Years later I found the journal he kept. The first entry is dated “Saturday, Dec. 13, 1941. 3:15 P.M.” It is typed on onionskin paper, now yellowed and brittle with age. He left very narrow margins — less than 2cm all around — to save paper. It was, after all, wartime.

This is the seventh day. I suppose I had better start from the beginning, or as near the beginning as I can.

Sunday morning, with Ben Glasser and Harold Davis, I went over to see Sam & Ellen Jacobs. I was due to go on guard that afternoon, but until then I was to help Sam clean up his yard. When we walked into the house, just a few minutes after eight, Ellen said something about a radio broadcast requesting all service men to return to their posts. I couldn’t understand it, inasmuch as we had just left, so I concluded that she had misunderstood the announcer. However Ben and Harold were a little uneasy so Harold decided to phone. Just then someone turned on the radio and I heard, “I repeat, the Islands are under attack. All police officers will please report to their stations immediately.” At the sometime we heard anti-aircraft fire, which to ben Sounded like 155’s. We wasted time but said goodbye on the way out, and hurried back to DeRussy. At the guardhouse I stopped for a drink of water and Sergeant Black, who was Sergeant-of-the-Guard, told me to get back to the battery as quickly as possible.

All this while I couldn’t believe that we were actually fighting. But still, I couldn’t convince myself that the military and naval authorities would be so foolish as to cry wolf, so from the moment I left the Jacobs’ until the time I saw Pearl Harbor aflame I was constantly debating with myself.

To get back: when we reached the battery we quickly climbed out of our civvies and into fatigue pants and o.d. shirt; shouldered our packs and grab the nearest rifles. Then we hotfooted across the parade ground to the gun-square where Ben was told to report to East Group and I was ordered to Battery Randolph. Harold had been a little quicker than either of us and I don’t remember when it was that I saw him next. I haven’t seen Ben since.

At Randolph I found most of the men already sweating with the ammunition. No one was pissing, we just kept the stuff running, a pretty steady rate, from the magazine to the spot where a truck was backed up and being loaded. After a while we got ahead of the truck, despite the fact that almost half of the men had been called back tot eh guns to help unload. But we didn’t slow up, just kept going back and forth. One of the first things I remarked upon to myself was that the stuff didn’t seem to be nearly as heavy as we had found it at Sand Island only the week before. We were so busy that we had no time to be tired — that’s the way I explain it now.

Every so often we could look up and see dogfights. AA bursts were clouding the sky, some of them breaking nowhere near a target. We concluded that their barrage was one of the main factors in driving off the enemy. Once we heard a loud report from the general direction of our guns and I thought that we were firing trial shot since most of the enemy had already disappeared. Later I learned that it was a bomb exploding somewhere the other side of Kalakauna Avenue. Anderson thinks it was a fragment from this bomb which almost struck him as he was standing outside the latrine, but I believe it was a piece of shrapnel from one of our own guns. When I heard about [it], during a slight break in the ammo carrying, I felt rather angry. What the hell do they want to go around bombing Calamaria’s craphouse for, I thought to myself.

So he wasn’t AWOL, and he wasn’t on Waikiki Beach. He simply didn’t want to talk about it. That chapter in his life was closed; I suppose not talking about it was the best way he had of keeping the past in the past and the door well shut. That diary cracked the door open. No wonder he left it in the most remote corner of his desk drawer. It was probably the first time those pages saw the light of day since he typed them.

Seventy-nine years ago today, the Japanese bombed Pearl Harbor. It was also my aunt’s 21st birthday, a fact not recorded in my father’s journal. She — his younger sister — is 100 years old today: a centenarian. She has seen wars begin and end, presidents and congressmen and senators come and go: people and things that seem in their moment eternal turn out to be just passing through. Today I wish I could be there to celebrate — with friends, with family. With cake.

I’ve been plotting a trip to the Left Coast for a visit, but it’s obviously not to be undertaken right now. The best I can do is say, “Happy Birthday, Chane!” My birthday wish (though it’s not *my* birthday) is that this pestilence — of Biblical proportions — finally exits the scene. With luck, soon, and we can have a long visit, long overdue. I’ll even bring cake.

Friends and Countrymen

It is a great irony that social distancing, forced upon us by the pandemic, has in some ways brought people closer together. The other night I participated in a fascinating conversation among men of a certain age, the boys I grew up with. Our custom was to gather for dinner once or twice each year, those of us in New York, in the spring and again at Thanksgiving. But Covid put a stop to that and we adapted. We meet now every six or eight weeks, on Zoom: doctors and lawyers, CEOs and actors, journalists and teachers. Almost all of us are White and would consider ourselves, if asked, upper middle class. Our Black friends, so few in number, have been candid about their experiences on these calls. More candid, I would say, than when we met in person. The physical separation has, I think, freed us all to speak more plainly about the most urgent issue of the day. For this, in this season of Thanksgiving, I am grateful.

For years we were together eight or ten hours each day. We grew up together, had our minds and wits forged and sharpened in the same classrooms, by the same teachers and the same books. In this experience we are all the same, and yet — as the conversation illuminated — how we experience our lives, even today, is more dependent on the color of our skin than most (White) people in this country are comfortable even admitting to themselves, let alone discussing openly. And that difference in how we experience the very same things, at the very same time, in the very same room: that is the essence of White privilege. It has no place in a nation, in Lincoln’s immortal words, forged in liberty and dedicated to the proposition that all men are created equal.

J wryly scoffed at the complaint, common in some parts of these United States, that wearing a mask is somehow oppressive. “Black people have been wearing a mask their entire lives,” he said. Enrolled in a school with a coat-and-tie dress code, he returned home to a part of the city where coats and ties were, shall we say, not the norm. J had to fit in to two very different worlds. Wearing two different masks. “It could have been very different for me,” he said, “but I was embraced and accepted at school. That makes all the difference.”

G told us about running to catch a bus: every Black kid is told not to run, not to break stride, not to make sudden movements. Let that sink in: we live in a world where a kid endangers himself by breaking stride when he sees his bus half a block away. Now a teacher in a city high school, G reminds us that we all had to meet a high bar. “We have to expect more” in our schools. “It’s all about graduation rate, so kids get pushed through so the school isn’t financially penalized.” It doesn’t require a degree in education to see that puts the incentives in all the wrong places.

The school we attended is engaged, now, in a project that requires it to examine its past more openly than ever while it contemplates its future. It has for too long been an enclave of mostly White students; the question is how to be more inclusive in a city that is increasingly diverse, and increasingly unequal. It’s hard to be inclusive in Manhattan. High school kids can and do travel the subway on their own, but that’s putting a finger in the dike. The problems of income inequality and racial inequality, of social justice and racial justice, go hand in hand. We might wish to replay the past differently but we can’t turn back the clock; we can only use the rearward view of how we got here to inform a better path forward.

All men are created equal. No man, woman, or child is intrinsically better than any other, and no one should behave as if he is. We on the Zoom call are not a representative sample of America, but we are America. And we want a better America for everyone. Frank, open, honest talk shines a clearer light, for me, on some of the problems we face as a nation. Too many people are too eager to move on, paying lip service and mentally checking a box. But it’s that frank, open, honest talk that is critical to healing and moving on. Putting a name on something, as the cliché has it, removes its power. “Voldemort” isn’t nearly as terrifying as “He Who Must Not Be Named.” And “Tom Riddle” is less terrifying still.

Education is the single vaccine against racism, against inequality, against injustice. We have to expect more; our schools and teachers have to expect more. And we have to stop thinking that education begins and ends with formal schooling; we have to stop using euphemisms and trying to move on. Call systemic racism by its name; talk about it; internalize the conversation. And then, some day, we can all move on. We can all stop wearing masks.

Professional Victims

Donald Trump wants you to know he is a victim. He also wants you to know that he is really, really rich; that he alone can fix it; that he has a very good brain. But above all he wants you to know that he is a victim, and that never in the history of the world been anyone more victimized. That is especially true now that he is — officially — what he most dreads being: not a victim, but a Loser.

True victims don’t bruit their victimhood about, don’t claim it as an excuse or use it as a lever: Job, for all his suffering, cursed only himself and the day he was born — never his tormentor; Christ accepted his fate, too, telling Pilate, in essence, “Do what you have to do.” Self-proclaimed victim status is a scam; Trump has been running this con in New York for at least forty years, where city regulations make it impossible — so he says — for any developer to make money. Never mind that successful developers profit hand over fist in Gotham: Trump is a victim! He has somehow thrived in spite of the regulations but that doesn’t mean anything. He’s a victim! The New York Attorney General investigates him for fraud (Trump University): he’s a victim! He purchased 400 acres of useless land in Westchester and Putnam counties for $2.75 million; when he could find no developer willing to build on it, he gave it to the State of New York and claimed a tax deduction — of $26 million. (Regarding this he’ll probably tell you he’s a genius.) His fake foundation is ordered dissolved for more fraud and self-dealing. He’s a victim! By a fluke of history he now occupies the Oval Office, where he presides over the smoking wreckage of our national government. He held the match and the Republican senate steadied his hand while he set the torch to all the guardrails of our democracy, while he tore children from their parents and put them in cages, while he teargassed peaceful demonstrators. But he is, absolutely, a victim. The rest of us? Suckers and losers.

One is tempted to marvel at the pathology of it. The mind of a sociopath is as fascinating as a high-speed train wreck: We can’t avert our gaze even as it lays waste to everything in its path. We should instead spend a few minutes analyzing how we got here — and then planning the long climb out, the years-long rebuilding of our national government, our national institutions, and our national pride.

Trump, after all, isn’t the only professional victim: the national GOP has been playing the victim card, too, and quite successfully. People of faith are victims of laws that apply equally to everyone; businesses are victims of workplace safety mandates, of environmental regulations, of antitrust laws, of minimum wage rules; people of great wealth are victims of estate taxes. Republicans are victims, of anyone who dares harbor a different vision of America.

That is not democracy, it is theocracy; and of a most twisted and degenerate sort.

Ockham’s Razor

Simple explanations — not implausible scenarios or convoluted conspiracies — are most likely to be correct. This well-known dictum is attributed to William of Ockham: Pluralitas non est ponenda sine necessitate. Pluralities — complexities in a theory — must not be asserted without necessity. Never suppose multiple, interlocking explanations when a single, simple reason is sufficient

It is a rule easily tested by common sense and everyday experience. Consider these two well-known, well-worn statements:

  1. The dog ate my homework.
  2. I didn’t do my homework.

Few people would choose (1) as the likeliest explanation: it is neither simple nor particularly credible. The addition of more details about the assignment’s encounter with domesticated animals (“My homework flew out the bus window and a cow ate it”) only serves to make the matter worse.

Donald Trump won’t admit he lost the election; more disturbing, many of his followers can’t accept the simple idea that although 74 million people voted for Trump, setting a record, over six million more voted for Mr. Biden. Having heard the phrase “rigged election” over and over, they conclude — without examining the premise — that it must be rigged; their guy lost, after all. Enter Sidney Powell, loudly proclaiming that Trump’s defeat could only be the result of fraud; and, moreover, a fraud so far-reaching that it was orchestrated by none other than Hugo Chavez — who died in 2013.

News flash for Messrs. Trump and Giuliani, and for Ms. Powell: That is how democracy works. “Your guy” doesn’t win every time; sometimes the other guy, the other party, the other philosophy of government, wins the day and has its chance.

Special attention should be paid, these days, to that phrase: Philosophy of government. For the Republican Party has ceased to have anything resembling an organizing principle; instead we have terse slogans (“Small government! Freedom!”) and a determination to use politics to remain in power, rather than to craft compromise legislation that will serve their constituents. The present spectacle — a legislature that cannot legislate, cannot provide financial relief for millions of people forced into unemployment during a pandemic — is more than just a case in point: it is a fitting finale to years of brinksmanship and gamesmanship instead of statesmanship, the logical conclusion to a decades-long showdown between a party that believes in government and compromise, and a party that believes only in its own ability to exercise raw power.

Nobody believes the kid who says, “The dog ate my homework.” Absent hard facts, the simpler solution is most likely true. Unlike the case of the wind blowing papers into the path of a grazing bovine — multiple credible witnesses swore they were on the bus and saw it happen — nobody has yet offered a single actual fact suggesting election fraud on any scale, let alone of a magnitude necessary to produce 81 million votes. The dog didn’t eat the homework, and Donald didn’t win the election. Both of them — and all of us — would be better off if they accepted reality.

Bad Faith

Just prior to Election Day a friend observed that we’re going to need new laws and new structures to prevent the corruption, self-dealing, and looting of the public treasury that have been the hallmarks of the Trump administration. “We can’t have ‘acting this’ and ‘acting that,’” my friend said. “We need to ensure accountability.” I told him that the laws already exist, and have for some time: but that enforcement is up to the Congress and the courts. With the Senate operating as a wholly-owned subsidiary of Trump, Inc.; and with a significant fraction of the Federal bench occupied by Trump appointees, the likelihood of anything actually being done is vanishingly small.

The problem isn’t that laws and structures don’t exist. The guardrails haven’t done much guarding these last four years, proving to be not such solid railings or firm barriers; rather, it turns out they are just suggestions, only as strong as public outrage and the other branches’ willingness and ability to enforce standards of behavior that have served the Republic well for two-hundred and forty-four years. I mention both “willingness” and “ability” because — as it turns out — the current administration has decided that the rules that have applied to every predecessor do not apply here. They have defied both congressional demands and court orders with alacrity, zealously undermining the institutions of democratic self-government while loudly claiming to speak “for the people.”

Well, the people have spoken and Donald Trump has been fired. He claims — falsely, as always — to have won with a “record” number of votes; and yes, his tally was indeed record-setting: more than ever for a second-place candidate. And let’s be absolutely clear: Biden’s victory was decisive, a margin of six million votes — nearly four percent. In an age when many elections are won and lost on razor-thin fractions, four percent is a landslide.

But the presidential falsehoods and GOP bad faith continue unabated: Dozens of failed lawsuits in multiple jurisdictions and attempts to strong-arm state elections boards and legislatures in Republican-led states will not change the outcome but they will undermine public confidence in elections, to the point where — as comedian Sarah Cooper tweeted recently — voters are asking courts to ignore the will of the voters. Reduced to its starkest terms: elections are legitimate if “we” win, but fraudulent if “they” win.

Of course it’s a bad faith argument. The essence of democracy — of voting — is that the outcome isn’t going to please everyone, all the time. Sometimes you win; sometimes you lose. That’s how the system works (when it works). Or as Christopher Krebs — fired last week for bucking Trump’s message that the election was fraught with fraud — noted last year, the purpose of elections is to convince the loser that he lost. This isn’t how we normally think about voting, but it’s dead on. Trump knows he lost; the people around him know he lost; Republican officials at all levels know that he lost. That they continue to sow doubt and stir up mistrust; that they say either nothing at all, or demur quaintly about “rights” to pursue false claims in court, says far more about them than it does about the actual results. They would cling to power by any means possible, the people be damned.

In 1982 the Republican candidate for New York’s 20th Congressional District (Upper West Side) lost overwhelmingly, 85%-15%. Of his defeat he remarked: “The people have spoken. The bastards.” If only today’s GOP could accept electoral outcomes with as much grace and dignity.

Cognitive Dissonance (GOP Edition)

Donald Trump refuses to concede defeat and continues to contest the election results. Apparently the same ballots that kept his Republican enablers in control of the Senate — for now — and gained them (so far) six seats in the House — these same ballots were somehow fraudulent, but only on the top line, for the Presidential race. As Scooby Doo would say: Huh? If you are alleging ballot irregularities, fine. But a few things you should keep in mind:

  1. The burden of proof (and the bill for any recount) is on you.
  2. “Upon information and belief” in your complaint won’t cut it: you need actual evidence.
  3. Invalidating any individual vote means invalidating the entire ballot, including down-ballot races (yours).
  4. Hundreds of thousands of spoiled ballots, across multiple states, just aren’t there.  Ever.

The idea of “stealing” or “rigging” an election in this way is beyond risible. It defies both common sense and the entirety of human experience. Trump and his allies are pinning their hopes on proving a conspiracy — a concerted, coordinated effort — among many thousands of people. As this On the Media segment demonstrates, it’s an impossibility.

It all would be the basis for a good laugh if it weren’t so serious. Ballot fraud is extremely rare, impossible to carry off successfully (see above), and almost always detected. Nearly every such failed attempt has been the work of Republicans, most notoriously in North Carolina’s 9th Congressional District. (One wonders if they allege fraud because that’s what they’d do?) The accusations in this cycle are particularly galling when senior Republicans at every level speak piously of Trump’s precious rights to contest an election and demand a recount without a peep about the malign intent to undermine faith in the very system that sent them to office. If the integrity of our elections is in question, doesn’t that also undermine the legitimacy of every elected GOP official? In the latest twist, a postal worker in Pennsylvania has recanted his claim that ballots were backdated, a claim that has been relied upon by Lindsay Graham and the Trump campaign as evidence of fraud. Republican donors have raised over $130,000 on behalf of the USPS employee — $130,000 being, apparently, the going rate (see: Daniels, Stormy). According to the Erie postmaster this is not this postman’s first job-related offense.

Small-d democrats ignore this doublespeak at their peril. Sure, any candidate has a legal right to challenge election results; but that right — like all rights — also carries certain obligations: challenges are to be made in good faith and must be supported by actual facts. The claims here have been dismissed by every court that has heard them, because no actual facts are even alleged. Per The Washington Post:

By now, it’s well-established that most of the arguments put forward by President Trump’s reelection campaign in its challenge of the results of the 2020 election are baseless and highly speculative. Even Trump allies, as The Washington Post reported late Tuesday, acknowledge the apparent futility of the effort. Others have reasoned that there’s no harm in going through the motions, with one anonymous GOP official asking, “What’s the downside for humoring him” for a little while?

But as scenes in courtrooms nationwide in recent days have shown, there is indeed a downside for those tasked with pursuing these claims. Repeatedly now, they have been rebuked by judges for how thin their arguments have been.

The most famous scene came in Pennsylvania, where a Trump lawyer strained to avoid acknowledging that their people were, in fact, allowed to observe the vote-counting process in Philadelphia:

At the city’s federal courthouse on Thursday evening, attorneys for Trump asked a judge to issue an emergency order to stop the count, alleging that all Republican observers had been barred.

Under sharp questioning from Judge Paul S. Diamond, however, they conceded that Trump in fact had “a nonzero number of people in the room,” leaving Diamond audibly exasperated.

“I’m sorry, then what’s your problem?” asked Diamond, who was appointed to the federal bench by President George W. Bush.

The downside of humoring him should be self-evident: further public humiliation of the United States, if the last four years were not enough. It even more nakedly exposes Trump for what he is, a spoiled and unpredictable man-baby with his hands on the nuclear codes. Moreover it exposes the gaping flaws in our vaunted system of checks and balances, which are more fragile than anyone supposed. It turns out they are utterly dependent on all actors behaving in good faith.

Attorneys have an obligation to serve the law and the court, not just their clients. Federal Rule of Civil Procedure 11(b) states:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Trump and GOP attorneys find safe harbor in subsection (4) — “information and belief” — and ignore the more pertinent subsections (1) and (2). These cases are warrantless and frivolous, in violation of (2); and they are being brought — or so it appears — merely to delay the timely certification of votes and undermine public confidence in the electoral process. By any fair reading such motivation violates (1).

Under Rule 11(c) a court may sanction the attorney. law firm, or party that violates Rule 11(b). Perhaps it’s time more attorneys defending these frivolous and capricious suits filed more Rule 11(c) motions. It wouldn’t be pretty; but it might put a stop to the wasteful abuse of process. Republicans are forever running on platforms to reel in what they see as abuses of the courts; but when elections don’t go their way they are the snowflakes at the courthouse door. Another term for cognitive dissonance might be rank hypocrisy.

Hysteria

A friend writes that in her deep-red part of the country yet another conspiracy theory is taking root: The Biden-as-Trojan-horse gambit, the Far Left’s way of sneaking Kamala Harris into the Oval Office. In this fervid fever fantasy, a frail Biden will not fill out much of his term and Harris is a progressive darling who will enact Medicare for All, raise the minimum wage, and destroy the American Way Of Life by implementing the Green New Deal.

Hearing these fears I was at first dismissive: Harris is neither Bernie Sanders nor Elizabeth Warren, nor is she Alexandra Ocasio-Cortez, Ayanna Pressley, or Ilhan Omar. And while I personally favor a more progressive agenda, I also recognize that politics is the art of the possible (see here and here): it does no good, and in the end considerable harm (in lost time, lost energy, and lost opportunity for compromise), to advocate — for example — universal government health insurance if the proposal will be met by unreasoned and unrestrained emotional resistance. “Medicare for all” isn’t socialism any more than automobile insurance or monthly condominium maintenance fees. It isn’t a terrible prospect and would likely save considerable lives and dollars. Opponents have been unable to articulate any real and substantive objection, ranting instead about keeping Government away from the doctor-patient relationship. (They seem to have no problem with insurance companies coming between you and your doctor, but that’s a discussion for another day.)

None of this analysis will help my friend convince her friends and neighbors that their fears are irrational and overwrought. Paraphrasing Jonathan Swift, you can’t reason a man out of a position he didn’t reason himself into. Or, as the Federalist congressman Fisher Ames, of Massachusetts, characterized such strongly held opinions:

They will not yield to argument; for, as they were not reasoned up, they cannot be reasoned down. They are higher than a Chinese wall in truth’s way, and built of materials that are indestructible.

With all Trump’s palaver and frothing at the mouth about impenetrable walls, Fisher’s turn of phrase seems particularly apt today. Since 1980 the GOP has excelled at convincing people to vote against their own self-interest, often by screaming, “Socialism!” Democrats would do well to better understand the emotional buttons the GOP has mastered.

And Republicans: If your best path to electoral victory is through voter suppression, what does that say about your policies? This segment from NPR’s On the Media is as chilling as it is eye opening. Of course every “legal” ballot should be counted.  We should all — all — be worried about a political party that defines “legal” as “for us” and “illegal” as “for them.”  If you doubt that characterization — which I admit sounds outlandish — take a look at the situation in Georgia, whose two sitting United States senators are calling for the resignation of the Secretary of State (whose job includes election oversight). Why? Because this fellow Republican didn’t deliver the election to them. Instead, he did his job and counted the votes.

Fatigue (III)

It was a few months ago that Keegan-Michael Key, appearing on “A Late Show with Stephen Colbert,” said he was exhausted. It was early June, immediately after the death of George Floyd at the hands of Minneapolis police officers, and he was expressing frustration with the racial imbalances — what we have come to understand, since then, as systemic racism — and seemingly never-ending inequality in this, the Land of the Free, where it is self-evident that all men are created equal. Aren’t they?

We are all exhausted: By the unrest and inequality; by the ineptitude and incompetence; by the needlessly high death count; by the lies; by the scandals; by the grift and self-dealing. We are exhausted, simply exhausted, to the point where we are too fatigued to lift a finger let alone raise our voices in anger and cry out together, as one, “Enough!” But the truth is that fatigue is not simply a by-product of the never-ending insults to our national integrity; nor are we exhausted only because we lack the energy, at the end of each long day, to push back against a government and executive appointees who will help themselves but not the people they work for and serve. Corrupt officialdom gives “self service” a whole new meaning.)

As we have seen with the child-separation policy, where the cruelty is the point: The exhaustion and fatigue are the point. Benumb us with your outrages, your corruption, your inhumanity, your incompetence, your sheer stupidity, and we will lack the energy to rise up and strike back. We simply don’t know where to begin: With emoluments? Children deliberately orphaned? Corrupt cabinet secretaries? Incompetent senior advisers? The executive branch of our government has become a criminal enterprise, eagerly aided and abetted by a senate majority that clings to power for its own sake and not for what it can do to improve constituents’ lives. The entire theory and purpose of our representative government has been turned upside down and inside out.

Despite best efforts to convince us otherwise, we are not powerless. We are not voiceless. We are not insignificant. E pluribus unum isn’t just a fancy phrase on our coins. Out of many, one; in unity there is strength. A single vote is an inaudible  whisper, but 250 million together is a category 5 hurricane that cannot be ignored. We don’t have to agree on everything — and we shouldn’t. We won’t always agree on the meaning of the First Amendment, nor of the Second, nor of the Fifth; we won’t always agree about gun policy, welfare policy, education policy, or foreign policy, but we must be able and willing to discuss them, honestly and openly, without resort to name-calling and demonization. We all want a stronger, better, more equal United States. Our ideas about how to achieve those goals differ. We have to re-learn how to talk to each other, and how to compromise.

But despite our differences we should, at a minimum, be able to agree that deliberate cruelty is wrong; that foreign interference in an election is an affront to voters of every political persuasion; that bribery is a crime no matter what the circumstances or who the actors. We should be able to agree that health care and education are rights, not privileges, and that they should be guaranteed by a government for the people. And we should be able to agree that if government of the people ceases to be both by the people and, most of all, for the people, then it is no longer legitimate and must be replaced.

This Tuesday, vote. Vote like your life and your liberty depend on it — because they do. Vote to restore government by and for the people. Vote for humanity and basic decency. Vote to end the madness.