Category: Politics

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.

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.

Lies or Policy?

Former New Jersey governor Chris Christie, speaking last night at the Reagan Library on the future of the Republican Party, said that the GOP should denounce conspiracy theorists, “the ones who know better and the ones who are just plain nuts.” The party needs to embrace the truth: “Pretending we won when we lost is a waste of time [and] credibility.”

This in itself is not newsworthy. But a statement quoted in The Hill gives the game away: The GOP, Christie says, “needs to be the party that’s perceived to be telling the American people the truth.” Excuse me? This is a bit rich:

  1. We don’t need to tell the truth as long as we’re perceived as being truthful.
  2. Calling ourselves THE truth-tellers brands everyone else a liar.
  3. Divert public attention from policy differences by engaging in a food fight.
  4. Force opponents to defend against the name-calling.
  5. Above all, avoid an actual debate about policies that might help actual people.

When “public debate” is instead a shouting match, it’s the loudest voice — not the soberest reasoning — that wins the day. Screaming, “They are lying to you!” without evidence isn’t a factual statement, let alone a clear statement of policy goals. But it’s enough to distract from the real issues. Engaging baser emotions rather than logic and reason is both the tactic and the goal.

Such is the modern Republican Party: with no popular support for its few retrograde policies, it has become single-minded about clinging to power by any means necessary: Jim Crow registration policies, shorter early voting periods, constraints on voting by mail, removal of polling places. Ensure that the people who weren’t going to vote for you don’t have the opportunity.

Does Governor Christie include the hysterical allegations about non-existent voter fraud among the conspiracy theories his party should denounce? Or is that limited only to acknowledging that “Trump lost” and “vaccines work”? Someone should ask him that. Someone should ask him whether he thinks honest debate about actual policy proposals — rather than name-calling — wouldn’t be a better use of everyone’s time.

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.

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.

The Personal Responsibility Party

It has been fashionable at least since the time of Saint Ronald for politicians to speak piously about “personal responsibility.” Since that time, too, it has been generally understood that those who most fervently preach this particular Gospel — including Saint Ronald himself — never mean for it to apply to Themselves; it is only for Others: Black people, poor people, gay people, any people who do not look or behave or think like they do. You know who they are: Those people. Such mind-bending blatant hypocrisy would make an ordinary mortal blush, at least; but our lawmakers are made of sterner stuff, and they make a virtue of denying their own actions. They are miracle workers.

An obvious case in point is the (second) impeachment trial of one Donald John Trump. Just listen to the comments of some of the jurors, oath-bound to do impartial justice: Mike Lee, Republican of Utah, suggests that “everyone should get a Mulligan.” One could reasonably infer, then, that Senator Lee’s estimation the fellow who robs a bank (or plans the robbery) should get a pass. As should the intoxicated driver, the junkie, the Ponzi schemer, the serial sex offender. The most obvious problem — but by no means the only one — with this very noble and forgiving sentiment is that Trump’s entire life has been nothing but Mulligans: his pandemic response; his Ukraine phone call (and first impeachment); his “grab ‘em by the p***y” Access Hollywood sniggering (“Just locker talk,” his wife would have us believe); and going back further, his six bankruptcies, his shuttered casinos, his Fair Housing consent decrees. The list goes on and on.

The Party of Personal Responsibility will take none for having created Trump and set him loose in the world; nor, for that matter, does it have the stomach to ensure that he, at least, is forced at long last to face responsibility for his failures and excesses. The late Leona Helmsley famously said, “Taxes are for the little people.” By which she meant, presumably, her many employees (both personal and corporate). Personal responsibility, then, is strictly for suckers. Leona at least spent some time as a guest of the state for her crimes. Republican senators — devout faithful of the Church of Personal Responsibility — don’t appear poised to convict Trump for anything, not even sedition against the United States. To do so would require not just selfless patriotism but a little self-knowledge. And a little acceptance of personal responsibility.

The Party of Stupid

Eight years ago Louisiana governor Bobby Jindal addressed the Republican National Committee at its winter meeting. Barack Obama had just been reelected, defeating Mitt Romney in an Electoral College blowout: 332-206. Jindal exhorted his fellow Republicans to “stop being the stupid party” and to “stop insulting the intelligence of voters.” RNC chair Reince Priebus conducted an “autopsy” of the GOP’s 2012 defeat.

Young people and minorities, the report concluded, viewed the GOP as a bunch of cranky old white men. The party could change its image by deemphasizing social issues and coming out in favor of immigration reform. A set of tactical recommendations got less attention but may have been more consequential: Based on the report’s ideas, the party shortened the primary calendar, reduced the number of debates, and began a huge investment in data and ground operations.

“The Final Humiliation of Reince Priebus” (The Atlantic 7/30/2017)

Over the last eight years the Republican Party has reemphasized social issues and rejected immigration reform. Rather than develop policies that might win more votes, the Republican Party has moved to suppress votes — the votes of minorities, especially. Rather than embrace the idea that among the rights of all Americans is the right to vote, and that exercising that right should be easy, the Republican Party promotes laws and policies that make voting more difficult: removing polling stations, restricting absentee voting, requiring voter ID — these are nothing more than poll taxes and eligibility tests by another name.

In today’s Republican Party, Bobby Jindal is out; Marjorie Taylor Greene is in. Science is out and Jewish space lasers are in. Big-tent rhetoric is out; xenophobia is in. And of course imaginary threats to American sovereignty, security, and stability are all the rage, while actual Russian threats to national security are ridiculed, denigrated, or ignored. And while Mitch McConnell and other “establishment” Republicans would like us to believe that this is an aberration, that the Party of Lincoln has not become the Party of Trump and that rebirth of a vibrant and sane — if conservative — party is not only possible, but inevitable, I have to disagree.

Trump didn’t co-opt the party or turn it to his own use; he didn’t create the infection nor did he drive it deeper: he is, rather, the apotheosis of the intellectual rot that began in 1980 when Ronald Reagan ran on the risible theory of supply-side economics: lowering tax rates will increase tax revenue. This demonstrably false idea — forty years of experience have proved, over and over and over again, that it just isn’t so — refuses to die. Economist Paul Krugman refers to it as a zombie policy, something which should be dead but isn’t; George H.W. Bush, running against Reagan for the 1980 nomination, rightly called it Voodoo Economics. As realized policy it has been an abject failure each and every time; and yet each and every time tax cuts fail to deliver the promised boom the GOP doubles down. Intellectual honesty would have inspired at least a little soul-searching, a reevaluation of the premise and (one would hope) the repudiation of a false god. Instead the rot spreads, a cancer on the party, devouring its adherents’ ability to think for themselves.

Trump is a symptom — a virulent, violent, repugnant, and highly infectious symptom. So is Marjorie Taylor Greene; and so too are the many elected officials who really do know better — but whose small, craven, pitiable need for approbation directs their legislative conduct. “The American President” provides a little insight here, as it so often does:

Lewis Rothschild : People want leadership, Mr. President, and in the absence of genuine leadership, they’ll listen to anyone who steps up to the microphone. They want leadership. They’re so thirsty for it they’ll crawl through the desert toward a mirage, and when they discover there’s no water, they’ll drink the sand.

President Andrew Shepherd : Lewis, we’ve had presidents who were beloved, who couldn’t find a coherent sentence with two hands and a flashlight. People don’t drink the sand because they’re thirsty. They drink the sand because they don’t know the difference.

Boys and girls, you were elected to lead: so, lead. Don’t take people where they want to go: explain to them, teach them, guide them to where they need to go. Leadership, real leadership, is hard. Maybe that’s why magical thinking and doubling down on demonstrably bad ideas are so rampant.