Category: Current Events

Judicial Temperament

It will come as no surprise to those who know me, and those few who follow this blog, that the shameful, shameless decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has been on my mind. As a participant in two unplanned pregnancies I am no stranger to abortion, and it’s fair to say that my life would be quite different in a world without the procedure. I’ve joked to my friends at Planned Parenthood that the so-called right to life movement (right to birth is closer to the truth — and “forced birth,” closer still) is the best friend they have: my monthly contribution increases every time a GOP Congress (or a benighted state legislature somewhere) approves repressive legislation. I have nothing but contempt for the contemptible men and the one woman who wrote and signed on to Dobbs. It upends long-established norms of personal liberty, effectively revoking a recognized right of individuals to make their most intimate decisions without state interference.

The Roberts court — whether the Chief Justice likes it or not — will forever be known as the place where individual liberty goes to die. The three most recent appointees flat out lied to the Senate when they said, “Roe v. Wade is settled law.” Settled law is settled: it’s not up for review. What they meant is, “It’s settled law until we have the votes to unsettle it.” Well, they have the votes. They have the power. And they have upended the very first thing every first-year law student learns about principles of judicial construction: stare decisis is the bedrock on which the common law is built; if people are going to rely on the rule of law (meaning, in no small part, what a judge says the law is) they have to rely on its consistency. It can’t change at the drop of a hat, or with the shifting winds, or when the balance of appointments to the Supreme Court reaches a tipping point. David Souter, when he met with the Judiciary Committee during his confirmation hearing, made exactly this point: I might not personally agree with the decision, he said, but it is the law and a rule by which people have been able to order their lives for decades; we can’t just overturn it because we don’t like it. If only Justice Souter were still on the bench.

Let it sink in: An arrogant group of unelected jurists decided to abolish a long-established individual right. They say that Roe v. Wade was “wrongly decided” — not for its conclusion (which they abhor) but for its logic. Trouble is, that’s an arbitrary metric when we’re fifty years in. They did what they did because they could, not because of any conviction that the logic of Roe was flawed (and in that much, I’ll agree — not so much as to Roe as to Griswold v. Connecticut, which found the right to privacy not in the Ninth Amendment to the Constitution (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) but in “emanations and penumbras” around, among other things, the Fourth Amendment (searches and seizures) and the Fourteenth (applying the Bill of Rights to the states).

Let this sink in, too: the Dobbs decision very directly jeopardizes other rights we take for granted. Much has been made of Justice Thomas’s concurring opinion, suggesting that decisions establishing other rights he disdains might also now be safely reversed. These rights include things that are by and large no longer controversial: same-sex marriage, interracial marriage, the use of contraception. May he Court begin, then, not with Griswold v. Connecticut (1965) — which ensured the right to use contraception — but with Loving v. Virgina (1967) — which struck down anti-miscegenation statutes. The arc of history is long, and it bends towards karma.

Blasphemy

A link showed up in my email this morning: There’s No Hate Like Christian Love. Provocative, I thought, but damned if it isn’t bang-on, and something that I’ve been thinking (if not actually saying) for decades. Curious, I clicked. The tone was a bit harsh and strident, the language blunt, and the generalizations sweeping and overstated. But I don’t think he’s wrong: I think he’s dead right.

My friends of faith (and I have at least a few) will not, I think, argue with the essential message there: Bible-thumping makes good street theatre, but it’s a crap basis for public policy and not “religion” — as a person of faith might understand it — at all. It stands principle on its head, so that “Love thy neighbor” becomes, “My neighbor must love me.” If Jake next door doesn’t love me as I love myself: well, that’s intolerable.

Someone recently said to me that religion is what’s left when God has left the building. I think that’s about as perfect a distillation as there can be. “Moreover,” she said, “God was never in a building.”

I could go on about this but I don’t see the need, except to say this: It’s not all people of faith, by any means; it is (and here my own generalization sweeps wide) the ones who proclaim their faith most loudly. There is no zealot like a convert; and the fanatic is always harboring a secret doubt. They should listen more, most of all to their secret inner voices that they work so hard to suppress.

Dialog (like charity, I suppose) begins at home.

Waiting for the End of the World

When we were young
we lived in fear: 
the Russians — no, the USSR --
were coming for us.
We held our breath
and cowered under our desks
waiting for the end of the world.
Then the enemy collapsed
which every house of cards must do.
In its place rose 
another illusion
a succession of threats and poses
poses and threats
from a man who would be king.

This new enemy is
smaller
with a small man’s bluster,
a pufferfish
with warheads to poison the world.

Today we sit and sip our wine
or fancy bespoke cocktails
and talk about the end.
We did this yesterday
and the day before.
No fear this time,
just resignation.
Because everything has changed
and everything is the same.

This much we can say:
It never ends well for the Tsar.

Exit Strategy

Facts are noisome things, standing as they do between belief — wishful thinking — and reality. The notion that the catastrophe in Afghanistan, for example, is all down to the Biden administration is without foundation in actuality, in the real world we all inhabit but might at times wish we didn’t.

That “it happened on Biden’s watch” is in fact not the same as “Biden created it.” The creation has been twenty long years in the making, beginning with an invasion that had no real exit strategy and ending with an agreement to withdraw negotiated without the participation of the Afghanistan government. The past administration’s sorry collection of ne’er-do-wells, grifters, and incompetents agreed to the 31 August deadline without getting much of anything in return. Perhaps they thought they’d still be at the wheel and could deny that what was happening, was happening; perhaps they hoped that they’d be turned out and would be able to blame it on the new administration.

Part of leadership is doing the job without blame-shifting, hand-waving, or excuse-making.  It’s all about execution. The Afghanistan withdrawal and its aftermath have happened, are happening, on President Biden’s watch. The president, to his credit, has been up front about where the buck stops: with him. He has made no excuses, nor has he bothered much to explain that this mess is not of his making; it’s simply his to clean up. He’s playing the hand he was dealt. Managing the current crisis is, as noted, all about execution. It hasn’t been flawless and never could be, but 122,000 evacuees over a ten-day period is impressive.

The Jackboot of Government

In the face of a surging pandemic, with infections rising daily across the country, you’d think that people would practice some common sense self-discipline. You’d also like to think that local governments would applaud and encourage anything that might turn back the tide. You would be wrong.

In the Granite State, Governor Chris Sununu has signed the “medical freedom” law ensuring that a COVID-19 vaccine can’t be required for entry to “access any public facility, any public benefit, or any public service.” This takes the state’s motto — “Live Free or Die” — to its logical extreme by making a mockery of those who just might want to live without the threat of contagion. “Live Free AND Die” might be more accurate.

In the Sunshine State, Governor Ron DeSantis — determined to show he’s got the chops to replace the former guy in the Oval Office — is trying to block any restriction on the cruise ship industry. The CDC thinks unvaccinated passengers should be barred from boarding a floating Petri dish; DeSantis disagrees, and would like the legislature to prohibit such restrictions by private companies, too. Not since Anita Bryant has any one person been such an embarrassment to Florida.

The Republican chorus decrying regulation has become farcical. If the market is going to decide, let it decide: the cruise ship industry isn’t asking to be free from CDC regulation and is perfectly capable of asking passengers to show proof of vaccine before boarding. It doesn’t need the jackboot of government regulators (the favored image of GOP antagonists to even sensible regulation) on its neck. Restaurants, concert venues, sports franchises — all can take sensible precautions, and should.

Indeed, as noted here, former GOP strategist (and McCain campaign manager) Steve Schmidt believes that such private pressure is the best way forward. And while I disagree with his assessment, I’ll also note the extreme irony of today’s straightjacketed Republicans: They can’t abide the idea of any public regulation, even those that protect the health of their own constituents; and now they can’t abide private actors who might have the temerity to suggest that hey, you can’t come in here if you might spread a deadly disease.

Did I say straightjacketed? They should be. Turns out the jackboot of government regulation fits them just fine.

The Consent of the Governed

I am still riled up about Steve Schmidt and vaccine mandates. Something has been bothering me about the libertarian streak in the Republican psyche — the part that wants to stop reading after the first five words of the First Amendment (“Congress shall make no law”). Something has been nagging at me, and until now I hadn’t been able to quite put my finger on it.

Libertarians are just one short step away from being anarchists: they prefer no laws, to laws that might regulate behavior or mandate safety standards of any kind (workplace, traffic, gun, drug, food, you name it). Because, you know, Freedom! And Liberty! “That government that governs least,” they declaim, “governs best.” We should all be Free and have the Liberty to decide what is best for ourselves, as individuals. And so we should, within limits. Setting those limits is the hard work of self-governance, something we as Americans think we’re quite good at. And we used to be.

Lately the “governs least” crowd has become the party of governs-not-at-all, by imposing parliamentary gridlock on Every. Single. Piece. Of. Legislation. A bill to rebuild our crumbling infrastructure? Not without sixty votes. To be clear: not without sixty votes to allow debate. The modern filibuster doesn’t require a supermajority to pass legislation; it requires a supermajority before the Senate can talk about legislation. If this strikes you as oddly undemocratic, you are not alone. It angers political observers at home, and bewilders those abroad. If de Tocqueville were writing today, “Democracy in America” would be a very different book indeed.

Self-styled libertarians like Rand Paul (R-KY) are one thing: they believe not in the concepts of liberty but in the soapbox a Senate or safe House seat provides them; they spout off because they can, and because their diatribes make good television back home and enrage the Other Side — whoever that might be. (As the latest Internet meme has it: Opposition to common-sense public health measures might be deadly, but at least we own the libs!)

Then there are more thoughtful libertarians, old-school Republicans like Steve Schmidt and Bill Kristol, who oppose “big government” because, well, it’s big and government should be small. People should be free to choose, they say, what is best for them: government shouldn’t decide for them. The problem with this argument, it seems to me, is right there in Jefferson’s text which they revere:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Deriving their just powers from the consent of the governed: ten words that define, it seems to me, majority rule, the very essence of self-governance in what we call democracy. Here, finally, is what has been bothering me all along about libertarianism generally, and about the opposition to government vaccine and mask mandates: “Government shouldn’t tell me what to do,” is all well and good, but it’s not “government” telling you: it’s your friends and neighbors. They speak through government, by virtue of their greater numbers at the polls. They tell you. They limit your personal freedom, according to their collective wisdom.

This is not the Wild West, and this is not the world as we all might wish it should be: this is the world as it is, and as it is requires that we all abide by the same set of rules: rules that limit our personal freedom, so that our behavior doesn’t impinge on someone else’s rights; rules that limit what we sell as food, as drink, as medicine; regulation of construction materials and methods. Glass-Steagall wasn’t an arbitrary and capricious limitation on banking; it was enacted to remedy conditions that led to the Great Depression: it created rules and structure, within which banks could operate freely. They couldn’t be under-capitalized and they couldn’t take excessive risks. The erosion of Glass-Steagall over the years, culminating in its repeal in 1999, led directly to the Great Recession of 2008.

History might not repeat exactly, but it certainly echoes. It might benefit us all if the champions of Liberty! and Freedom! bore that in mind before spouting off.

Vaccine Mandates

A friend directed me to a thoughtful piece by Steve Schmidt regarding vaccine mandates. In this Twitter thread, Schmidt suggests that the way to achieve better vaccine compliance isn’t by vaccine mandate, per se; he prefers “incentives” such as barring admission to shows and restaurants, airline travel, public events and public spaces.

The piece presents as thoughtful to be sure, but when you cut through to the core it’s the same bullshit he’s been peddling for 30 years: freedom from regulation and let the market decide, because that fixes everything. It doesn’t and he knows it. He’s now caught in his own trap, and he’s desperate to get out without admitting he’s been worshiping a false god (free = unregulated) all this time.

As I’ve written elsewhere (here, and here, as well as here and here) the human capacity for cognitive dissonance is unlimited. Schmidt wants people to get the vaccine, but doesn’t want government to force them. Rather they should be persuaded by coercive forces — of government agencies like the FAA, of private parties like restauranteurs and producers. It seems to me that this is “regulation” by another name. But regulation bad, incentive good. This would be comic gold if it weren’t so deadly.

Schmidt decrees that, “NOBODY should be FORCED by the GOVT to take the vaccine. EVER…. That means never, ever.” Instead he’d coerce people to make the “right” choice by denying them access to public buildings, public spaces, public benefits… etc. That’s at best a distinction without a difference, and it’s utter crap. It’s the religion of “personal responsibility” and “freedom of choice” wrapped in fancy-dress, the same old whine in new bottles.

Schmidt and his ilk are all for “personal responsibility” and I am almost willing to take them at their word if, for example, I can deny them emergency medical care because they made the PERSONAL CHOICE to remain uninsured. They did so freely, after all, and (in Schmidt’s view) it was their choice to make: let them accept the consequences, and not come running to their fellow-citizens, the taxpayers of the United States, to be the insurer of last resort against their (objectively stupid) choices. Choices like going without health insurance, or building a house on a flood plain (and purchasing government flood insurance when private insurers turn them down, with reason), or rebuilding in the Rockaways after Hurricane Sandy took your home and everything in it out to sea.

Sure, Schmidt and Bill Kristol and a lot of others have been vocal for years about the former guy; and they’ve admitted they played a part in creating him and continue to express regret. It might be more helpful if they explained the role played by Newt Gingrich and his politics of personal destruction and demonization of The Other (i.e., anyone who stands in their path to power, mostly Democrats). Instead their road to Damascus conversions have only gone so far; they haven’t reconsidered their core beliefs, the things that made them Republicans in the first place and that (in my view) led us, inevitably, to the unhappy place we are now. When Ronald Reagan declared rhetorical war on the federal government, these folks took it a little too seriously and a little too much to heart.

Contrary to St. Ronald’s assertion, government is not always the problem and is often the solution, a fact easily demonstrated when (for example) an uninsured individual receives medical care in the ER, or when FEMA brings much-needed relief — food, water, medicine, temporary housing, and more — to flood and fire victims. Many of the beneficiaries — indeed, most of the beneficiaries — of such government largesse are people who resemble the people who stormed the Capitol far more than they do Rep. Alexandria Ocasio-Cortez or George Floyd. The politics of resentment and fear play an outsize role, distorting public policy and thwarting goals everyone can agree on, like pandemic recovery.

I should (and do) welcome Schmidt to the majority that acknowledges, unequivocally, that what happened January 6 was an insurrection and EVERYONE responsible should be brought to justice. But his argument about vaccine requirement fails to convince me. Government REQUIRES a measles vaccine, a mumps vaccine, a rubella vaccine, a polio vaccine; not many years ago a smallpox vaccine, too, was required. Why is this any different?

Government requires us to purchase auto insurance. It requires us to wear seatbelts; it requires cyclists to wear helmets. I could go on and on. These are not controversial obligations. They protect us from others and — to a lesser extent — from ourselves. Isn’t that the purpose of government? To institute the rules of a civil society?

Mr. Schmidt, I applaud your efforts; really, I do. But governments are instituted among men, as Jefferson had it, to secure our unalienable rights — life, liberty, and the pursuit of happiness. It’s not a stretch to suggest that life itself is easier without the threat of deadly disease, and that happiness is easier to pursue when we’re not worried about whether our neighbor has done the bare minimum to ensure his own health AND MINE. 

I’ve been fond of saying that there are very few things a national government must provide, but there is something much more fundamental than army, currency, or post office. Governments “derive their just powers from the consent of the governed,” and they exist to create, promulgate, and enforce the simple rules by which we all must live if we are to be a cohesive nation. Seatbelt laws were once controversial, but are no longer — and were instituted with the consent of the governed: that is, by simple majority. “Conceived in liberty and dedicated to the proposition that all men are created equal” is a noble ideal but it doesn’t give due respect and even homage to the more mundane aspects of self-governance. Like making sure we don’t kill each other through thoughtless, selfish, and stubborn refusal to consider our neighbors. Most of us think vaccine and mask mandates are a good idea. Get over it.

Bipartisanship

Questions for Senators Joe Manchin and Kirsten Sinema (and fifty Republicans): is it “bipartisan” to suggest that Joe Biden is not the President of the United States? To hold on to the fiction that the election was “rigged,” “stolen,” or “corrupt”?  To buy into the lie, or seem to, that Trump didn’t actually lose? To pretend that GOP senators will compromise on legislation in any meaningful way? To insist, year after year after year, that asking wealthy individuals and corporations to pay their own way, constitutes class warfare?

No, I didn’t think so, either. Senators, do the right thing: kill the filibuster, or amend the rules to require an actual filibuster. If Ron Johnson wants to thwart the will of the people, make him hold the floor to do it. Arguing that the filibuster increases bipartisanship — when all recent experience points the other way — is akin to saying that the Civil War wasn’t about slavery. It’s myopic, historically inaccurate, and — at best — naive. Such naïveté should be disqualifying for anyone running for, or holding, public office.

What Leadership Looks Like

President Biden does not have the rhetorical gifts of Barack Obama. He isn’t a natural teacher like Bill Clinton, who can explain — ex tempore, no less — the most abstruse concepts in clear and unpatronizing language. He can’t twist congressional arms to pass legislation the way LBJ could like no other before or since. But anyone who paid close attention to his first address to Congress would have recognized real leadership. If it went unnoticed, perhaps that’s because for too long we have been without it.

The opinion pages and TV pundits and bloviators have all had their say; I’ll wager that few if any noticed this gem, tucked into his introductory remarks:

Universal public schools and college aid opened wide the doors of opportunity. Scientific breakthroughs took us to the moon. Now we’re on Mars, discovering vaccines, gave us the internet and so much more. These are investments we made together as one country. And investments that only the government was in a position to make. Time and again, they propel us into the future. That’s why I propose the American Jobs Plan, a once-in-a-generation investment in America itself. This is the largest jobs plan since World War II.

[Emphasis added.] Investments that only the government [can] make: This is a subtle rebuke to Republicans and free-marketeers. There are in this world some things that only government can do. It isn’t enough to hope that ambitious capitalists will undertake the basic research that leads to so much more; it isn’t sufficient to believe that government regulation is ipso facto oppressive and that corporations can better regulate themselves, with no ill public effect.

Just this past week, Senator Marco Rubio (R-FL) opined that, “No policymaker would allow a company to dump toxic waste into a river upstream of a thriving town he is charged with governing.” This is like saying that no company would ever prioritize its profits over the interests of its customers by, say, cutting corners on workplace safety or using poisonous food additives. Except that it happens all the time. Rubio represents a political party ideologically opposed to government regulation of any kind. The only part of his statement that rings true is its cognitive dissonance.

Things only government can do. This gets at the very purpose of government, of good government. Republicans might be fond of quoting Jefferson — “That government is best, which governs least” — but they emphasize least while paying little or no attention to best. They know quite well that “least” doesn’t mean, as little as humanly possible; it means, just enough to get things right. There are things only government can do: provide for the general welfare and common defense, for example.

But really, that isn’t enough: good government should be aspirational — “We choose to go to the moon”1; good government should rise to the occasion; and good government should set new goals for itself as a nation, for its people’s betterment. Some great things aren’t ever going to be done by the private sector; some things, these things, only government can do.

  1. John F. Kennedy, address at Rice University, Sept. 12, 1962.