Tag: #badfaith

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.

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.

Shocking but not Surprising

Like most people here at home and around the world, the mob insurrection at the United States Capitol disgusted and revolted me. We must hope that this disgraceful coda to the Trump presidency is the death rattle of the Republican Party that enabled it, abetted it, encouraged it, and then stood by while thugs ransacked and defiled the Capitol, killed a police officer, and carried off laptops and national security briefings before being allowed to peacefully leave the building and head off into the night. It is not news to anyone reading this that even after the riot, when Congress reconvened to finish its constitutionally-mandated ritual, there were 140 House Republicans who voted to uphold the bogus objections to Arizona’s certified election results. One hundred and forty: two-thirds of the GOP caucus. Disgrace upon disgrace upon disgrace, and there is no bottom.

No. What we witnessed was not (as GOP hand-wavers and magical thinkers would have us believe) the voice of the people; it was an attempted coup.

No. “We just want an audit,” is not an excuse to riot, to mar public property, to commit mayhem, to murder a peace officer. (And no, “It’s public property,” is not anywhere near the same as, “it’s my property and I can do what I want with it.”)

No. “We heard there was fraud,” is not — as courts around the country ruled five dozen times — a legally recognized standard. Where are the facts? “Hannity told us” isn’t sufficient; show me the spoiled ballots. Prove it. (You can’t, because it’s a lie.)

No. Creating a crisis might create an opportunity for authoritarian crackdown, but it will be remembered in history as wholly illegitimate. Trump’s message to his followers, the recorded video of them breaking windows, staining statues, and defacing walls: it’s not too early to say that these things will join the Reichstag fire in the litany of shameless, shameful, notorious events.

No. Article II does not allow the president to do whatever he wants; we are a nation of laws, not of men — that is what we tell ourselves. No one is above the law — that is what we tell ourselves. The Executive is charged with seeing that laws are faithfully executed — that is what we tell ourselves.

If that is so, there must be consequences. If we believe what we tell ourselves, there must be consequences. Serious, terrible consequences. What is the penalty for treason? (For that is what it was.) Hint: it’s one of only three crimes defined in the Constitution of the United States. And it carries a penalty that the Trump administration shouldn’t find upsetting.

Cognitive Dissonance (Mental Health Edition)

“You will never take back our country with weakness,” says Trump, inciting his mob. Please remind me, because being weak and feeble-minded I have forgotten: who has been in charge of this country these last four very long years?

Cognitive Dissonance (GOP Encore Edition)

Senator Josh Hawley (R-MO) has announced that come Wednesday (6 January 2021) he will object to the certification of the Electoral College result. Purportedly 140 Republican members of the House will do the same. This is not simply madness, it is shamelessly attempting a coup d’etat. Here. In the United States of America, where we fancy ourselves a beacon of liberty to the world, champions of democracy and justice. Does it get any worse than this? One wants to believe, desperately, that it does not. One is certain, after the egregious anti-democratic behavior and unabashed self-dealing of the last four years, that it does, it can, and it probably will. With just over a fortnight left in this worst of all possible administrations, the damage gets worse every day.

The immediate damage is deliberate, and seeks to hamper and hinder the incoming Biden administration even before it gets started (as described here by Dana Milbank in the Washington Post). But the more lasting damage will be to our body politic generally, and — ironically, fittingly, and most deservedly — to the Republican Party specifically. The intellectual rot appears irreversible: when elected officials question not simply the legitimacy of an election, but the legitimacy of their own election, something is very wrong indeed. Apparently “democracy” and “free and fair election” are malleable terms. Fair elections are those in which “our guy wins” whereas any other result is ipso facto the result of unimaginable corruption and conspiracy.

But now come Hawley and with him Ted Cruz and ten more fully Trumpified senators who say they will not accept the outcome, as will 140 Republican members of the House. These people were elected on the very same ballots as Biden, and the inconsistency of their own twisted logic seems to bother them not one whit. We are forced to contemplate two, and only two, alternatives: that these elected officers are too stupid to realize the full implications of their false claims; or too craven to care. And which is worse in a public servant? Do we prefer them feeble-minded, or unscrupulous? Each of these dozen senators was invited to explain on television why they will not accept Biden’s clear victory; each and every one refused the invitation or declined to answer it. To dimwitted and unprincipled we evidently must now add rude. (That a sitting senator would refuse an invitation to appear on television is in itself another oddity.)

Forty years ago the GOP threw its principles overboard in order to win elections: in the place of conservative policy ideas that could be discussed, tested, and adopted (or discarded) as appropriate, the party adopted slogans and demonstrably false claims — the language of ad agencies and mountebanks. Tax cuts will increase revenue! Competition is a magical cure-all for all things political, economical, and educational! New immigrants — to this literal nation of immigrants — are coming to take your jobs! Politics became, in other words, a game. It was no longer about compromising to improve the lives of citizens and constituents; it was about winning elections and achieving, holding, and keeping power.

Decades of empirical evidence haven’t been enough to wipe away these failed ideas, emotional triggers masquerading as  public policy. Our society, our country, our world have all suffered needlessly as a result. We should all hope that the GOP’s most recent self-inflicted wounds prove at long last to be fatal.

Another Day, Another Rebuke

The election has been over for weeks. Any lingering doubts should be put to rest by the decision issued yesterday in the Eastern District of Wisconsin. This should be enough to send the red-hatted MAGA hangers-on packing, but it will not be.

The New York Times reports on the case:

In a strongly worded decision, Judge Brett H. Ludwig, a Trump appointee who took his post only three months ago, shot down one of the president’s last remaining attempts to alter the results of a statewide race. The decision came just one day after the Supreme Court denied an audacious move by the state of Texas to contest the election outcomes in Wisconsin and three other battleground states.

Judge Ludwig’s concluding paragraph is all the more scathing because it uses the dry and colorless language of legal technocrats:

This is an extraordinary case. A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred. This Court has allowed plaintiff the chance to make his case and he has lost on the merits. In his reply brief, plaintiff “asks that the Rule of Law be followed.” (Pl. Br., ECF No. 109.) It has been.

The full decision is here.

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.

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.