Posts © 2011-2012 by Gerald G. Day







Friday, July 19, 2019


July 19, 2019

Was Trump’s serial outburst against four minority women a calculated political ploy or just the Donald in typical form?  His history of racist comments suggests the latter.  However, there has been a good deal of speculation that his comments were designed to achieve two ends: fire up his bigoted base and force Democrats to defend “the Squad,” thereby identifying the Party with its extreme wing.   Although I incline to the view that Trump isn’t intelligent enough or disciplined enough to devise and carry out a political plan, he has advisors, and their re-election strategy seems to be based on holding the states that he won in 2016; Trump’s campaign appearances have focused on those states.  Planning for another minority win, depending again on the undemocratic electoral college, nailing down that vote through an appeal to prejudice is pathetic, but then . . . .
Following that plan, Trump, at a rally in North Carolina Wednesday, went on at length about Rep. Ilhan Omar’s actual or imagined statements, with the obvious intent of turning the crowd against her.  Taking their cue from his tweets about Omar and her colleagues, (“you can’t leave fast enough”), and his anti-Hillary slogan (“lock her up”), they chanted — spontaneously? — “send her back!”
However, some Republican members of Congress denounced the chant, and the advisors may be having second thoughts.  At a news conference on Thursday, Trump claimed that he was “not happy” with the chant, and that he had cut it off by “speaking very quickly.”  In fact, as video shows, he was silent for twelve seconds while the chant continued, exhibiting no disapproval, then went on talking about Omar.  Later he tossed out “Pocahontas” just to show how much he disapproves of racial politics.
During the 1984 campaign, some of President Reagan’s advisors thought he had been too carefully managed, and advocated letting Reagan be Reagan.  Trump’s allies may decide that a similar strategy won’t work for as ugly a character as he is.  However, they may not have a choice.  On Friday, Trump returned to form.  The crowd at the rally, presumably including the chanters, are “incredible patriots.”  As to Omar, “She’s lucky to be where she is, let me tell you. And the things that she has said are a disgrace to our country.”  He’s no longer unhappy about the chant: “No, you know what I’m unhappy with — the fact that a congresswoman can hate our country. I’m unhappy with the fact that a congresswoman can say anti-Semitic things.”[44]  Trump will be Trump.

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44. https://www.washingtonpost.com/politics/a-day-after-distancing-himself-from-hostile- chant-trump-criticizes-media-for-its-coverage-of-his-rally/2019/07/19/9c094c16-aa12-11e9-9214-246e594de5d5_story.html?_view=prod&utm_term=.a1d82f49a693&wpisrc=nl_most&wpmm=1

Wednesday, July 17, 2019

July 16, 2019
 
Donald Trump faced a Democratic Party in disarray. One of the fractures was between Speaker Pelosi and four leftist minority women, Ayanna Pressley, Rashida Tlaib, Alexandria Ocasio-Cortez and Ilhan Omar. Very stable genius that he is, Trump attacked those women in a manner so offensive that Pelosi and the rest of the Party rallied around, achieving — at least temporarily — the unity they had disdained. On July 14 he tweeted (beginning at 5:27 AM):
So interesting to see “Progressive” Democrat Congresswomen, who originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they even have a functioning government at all), now loudly......
....and viciously telling the people of the United States, the greatest and most powerful Nation on earth, how our government is to be run. Why don’t they go back and help fix the totally broken and crime infested places from which they came. Then come back and show us how....
....it is done. These places need your help badly, you can’t leave fast enough. I’m sure that Nancy Pelosi would be very happy to quickly work out free travel arrangements!
After an outcry, rather than defusing the situation, he doubled down on his insults, but claimed that many people agree with him, thus sending a message to the bigoted base to rally around. Among his outbursts was an accusation that the four are pro-terrorist.
Would Republicans finally decide that too much is too much? Here’s Lindsey Graham: “We all know that AOC and this crowd are a bunch of communists. They hate Israel, they hate our own country . . .” Communists? Lindsey, Lindsey, at least find a contemporary insult. (Trump also listed hatred of Israel among their sins). House Minority Leader Kevin McCarthy was less out of date but equally wedded to cliché: defending Trump from charges of racism, he pronounced that the Leader’s dispute with the women was “about ideology. It’s about socialism versus freedom.” Four brave Republicans did vote for a House resolution which “strongly condemns Donald Trump’s racist comments.”
Those comments have persuaded one House Democrat to file articles of impeachment. This episode is the wrong focus for that move, but the House leadership and many members have been so cautious that it may never have happened otherwise. It will be interesting to see whether the impeachment issue will return the Democrats to their normal position of dithering, bickering ineffectualness.
Let’s hope that some segment of the base expresses reservations about Trump’s success in making America great again — perhaps on the effects of tariffs— something that will, however slightly, imply that he isn’t a visionary leader, bruising his tender ego. If he were to respond in characteristic fashion, he might drive enough away to make 2020 a happy time.


Thursday, July 11, 2019

July 11, 2019

The California legislature has passed a bill, expected to be signed by the governor, which is intended to impose a stricter standard for the justifiable use of deadly force by police. Although the bill is not as strong as one of its sponsors claims,[40] any step toward better control is welcome. There have been too many shootings, many fatal, by police officers.[41] A disproportionate number of those victims have been black. [42]

Any number of factors may be at work in producing the number of fatal shootings; here are my non-expert thoughts: The statistics make clear that racial bias is a significant element. Training may be another, if it makes shooting the default reaction. Militarization of police departments contributes to the problem; too many situations involve heavily armed forces and confusion. Fear is a factor, in turn probably driven in part by the glut of guns, leading cops to assume everyone is armed and dangerous.

Data on non-fatal shootings by police are hard to come by, but it is likely that there are many such incidents and that racial distribution is similar to that for fatal encounters.[43]

Police have a difficult, inherently dangerous, necessary role, and blanket condemnation is neither fair nor useful, but there have been too many instances of bad behavior to ignore or explain away. Rooting out reactionary attitudes, including racism, would be a great step forward, and addressing the problem of too many guns would serve both the police and the rest of us, but what are the odds in the age of Trump?


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40. https://www.huffpost.com/entry/california-bill-police-use-deadly-force_n_ 5cf02f23e4b0e346ce7b0bc8
41. Nearly 1000 fatal shootings per year: https://www.washingtonpost.com/investigations/four-years-in-a-row-police-nationwide-fatally-shoot-nearly-1000-people/2019/02/07/0cb3b098-020f-11e9-9122-82e98f91ee6f_story.html?utm_term=.bbefee87974a
42. https://www.vox.com/identities/2016/8/13/17938186/police-shootings-killings-racism- racial-disparities

Friday, July 5, 2019


July 5, 2019
Elected officials of the Democratic Party are striving to validate the first part of Will Rogers’ dictum:  Democrats never agree on anything, that's why they're Democrats. If they agreed with each other, they'd be Republicans."  (The lockstep-behind-Trump GOP demonstrates the other part).
The Dems began, after winning the House last fall, not by agreeing on a strategy but arguing about whether Nancy Pelosi should be replaced as  speaker.  Alexandria Ocasio-Cortez, rather than displaying the caution appropriate to one who is new to her role, postured like a party leader, abetted by breathless media coverage.  She announced a plan to challenge some of her colleagues at the next primary; doctrinal purity over party solidarity.  As Rogers also said, "I'm not a member of any organized political party. . . . I'm a Democrat."
There has been consensus in the House on some issues, but surprising discord regarding  a formal impeachment inquiry, which would focus attention on Trump’s incompetence, dishonesty and venality.  (Here Ocasio-Cortez has the right idea). 
The fact that it is idiotic to start the presidential election season this early may be a factor in driving the Democratic candidates into a hyper-competitive, mutually destructive mode. Sen. Kamala Harris may have thought that her angry, self-righteous attack on Joe Biden would be a clever tactic, and would make her the darling of the left, but its primary effect was to help Trump.  The media aided in both regards by declaring her performance powerful.
The candidates have other, less ego-driven problems.  Many back Sen. Sanders’  Medicare for all plan, but his and their support seems unexamined.  Problems include ignoring cost and glossing over, or waffling on, the elimination of private insurance, including employer-provided plans.  That would seem to ensure opposition not only by a powerful business lobby, but by many employees and those who suspect that supplemental insurance always will be needed.  
Republicans’reactionary policies and political immorality must be opposed and defeated, but Democratic disunity will not accomplish that. Democrats must follow a progressive agenda on, for example, economic inequality, but an unthinking lurch to the left lessens the chances of ridding us of Trump and McConnell.

Tuesday, June 18, 2019


June 17, 2019
Right-wing television performers, a.k.a. news people (the real fake news) are wrong with regularity and most often annoyingly so, but now and again their nonsense provides comic relief.
Rush Limbaugh compared D Day to the “invasion” of illegal immigrants at the southern border.  The analogy would put the border patrol in the shoes of the Nazi defenders and the immigrants would be the liberating troops.  That probably wasn’t the image he had in mind, but nonstop bloviating is bound to confuse.
When Nancy Pelosi said she wanted to see Trump in jail, Sean Hannity responded in baffled horror: she "wants a political opponent locked up in prison? That happens in banana republics -- beyond despicable behavior."  Apparently that became despicable only recently; Hannity parroted “lock her up” over and over about Hillary Clinton’s alleged crimes.  Speaking of banana republics, has Sean noticed the trend of our nation’s character under Colonel Trump?
Ainsley Earhardt of Fox and Friends contributed this: “you can say whatever you want about the president, but his negotiation tactics are amazing.”  His skills are so formidable that he is conned by Putin and Kim, and this is her notion of his negotiating tactics: “he's sitting down with this delegation, he's got folks in D.C. right now that have been sitting down with these Mexican delegates that have come up to try to work out a deal.”  Sitting down! Impressive.
Her first phrase seems to admit that there is much on the debit side to say about Trump, again probably not the intended message.
Meanwhile, two things we can say about the President were confirmed: he isn’t bright, and he thinks that election-related collusion with foreign sources is just fine.  He has denied continuously  any collusion with Russia and twisted the Mueller Report to mean that there was none.  However, his and his campaign’s eager reception of ammunition against Hillary Clinton showed collusion, and now he’s underscored his willingness to repeat that pattern.  Asked whether he would accept politically damaging information from a foreign source, he said "I think you might want to listen, there isn't anything wrong with listening,"  As an example, "If somebody called from a country, Norway, [and said] ‘we have information on your opponent' -- oh, I think I'd want to hear it."  We might guess that the source would be a bit more sinister than Norway.        
In a tweeted attempt at damage control, Trump likened election interference to his conversations with such dignitaries as the Prince of Whales.

Tuesday, June 4, 2019


June 4, 2019
Apparently it was necessary for Robert Mueller to deliver an address informing us that the report of his investigation meant what it said.  Following his recent public oral summary of the report, news media and various Democrats suddenly and dramatically announced their awareness of its message, including its reminder that Congress has the power to remove a president.
It is true that the report is bland, cautious and indirect.  However, Mueller’s recital was no less so.  The report is long, but its executive summaries made the same points that he made in his brief speech.  Perhaps Democrats and the media learn only aurally, in the case of the latter an ironic trait as they attempt to persuade people to read newspapers or web pages. 
Now that the reminder has been underscored, perhaps Nancy Pelosi’s somewhat puzzling reticence will be overcome.  Democrats shouldn’t fall for the argument that Trump is goading them into impeaching him, calculating that he can play the martyr on his way to reelection. He is afraid of impeachment, as he has been afraid of disclosures about virtually any aspect of his life.
Many Democrats and pundits think that impeaching Trump is not worth the political risk.  They may be worrying too much about 2020, and overstating the likelihood of Trump’s reelection.  Trump lost in 2016 by 2.8 million votes; only the peculiarity of the electoral system saved him, and that by fewer than 78,000 votes scattered over three states.  A focus on critical states, largely absent last time, could bring a different result.  As to the popular vote, it’s difficult to imagine that anti-Trump voters last time will vote for him next time around, and easy to think that a few of his backers have had enough.  Polls continue to show negative favorability and job performance numbers for Trump, and thus far straw polls show some of the Democratic candidates leading him for 2020.  All of that could change, but if Democrats can’t defeat a candidate as unqualified as Donald Trump, they may as well disband.
Why does Trump want to be reelected?  He has so little interest in governance and is so removed from any coherent philosophy that another run, which clearly is underway,  seems to have nothing to do with politics, in the usual sense.  True, he will advocate border control, but that is more opportunistic than principled.  He will support lower taxes, but that is a matter of private interest.  Winning again serves two needs: extending his immunity from prosecution, and caressing his ego.
That ego is fragile.  He reacts dramatically to any perceived slight.  At some level, Trump may know that he is a loser, and not only at the ballot box.  Treating him with caution is the wrong approach; he should be challenged, constantly and systematically, the latter best achieved through an impeachment proceeding.  The House Democrats should learn a lesson from the Mueller restatement: Trump’s unfitness has been public knowledge from the beginning, but it may take a formal, broadcast recital to drive the point home.  Televised impeachment hearings could be the vehicle.
When the House Judiciary Committee considered impeachment of Richard Nixon, it was criticized for conducting a compilation rather than an investigation.  A systematic, public, televised compilation of Trump’s abuse of his office is just what is needed now; many of the facts already are known; they need to be gathered and dramatically displayed.  (A good preliminary summary appeared in Dana Milbank’s Post column on June 3, but effective only for those who read). 
A cap spotted on a Trump doll in the anti-Trump protest in London read: “Make America Great Again. Impeach Me.”  Congress, there’s yet another hint.  (I liked “Build a wall to keep Trump out” too).

Saturday, May 18, 2019


May 17, 2019   
     The Mueller report confirmed the obvious; Donald Trump should not be President.  Several hundred former federal prosecutors have declared that, if Trump did not hold that office, which supposedly renders him immune from indictment and prosecution, he would have been indicted for obstruction of justice. That immunity was assumed by the Mueller team, based in part on a Department of Justice opinion which found that “The  indictment  or  criminal  prosecution  of  a  sitting  President  would  unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”[37] 
     Even if the President should be protected from a criminal trial during his term because it would be too disruptive and time consuming, an argument can be made for permitting indictment, which would be less so.  However, the Special Counsel decided otherwise, so the question probably is moot.     The Mueller Report did not make a criminal referral and ended the obstruction section with this weak conclusion: “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”  Even that suggests evidence of misconduct, but it allowed Trump to claim vindication and Mitch McConnell to declare “case closed.”
     The Mueller report, in addition to accepting and deferring to the DOJ opinion, added this statement of limitations: “we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”  The first part of that sentence essentially restates the DOJ opinion in non-constitutional terms, but the reference to preempting constitutional processes is a not-very-subtle hint that impeachment is the way to deal with Presidential crimes.
     The prosecutors’ letter is as direct as the report is elliptical:
The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;
· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and
· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.[38]
The last was later more forcefully expressed as witness tampering and intimidation.
     Should President Trump be impeached?  Certainly he deserves it, and impeachment would be a formal declaration of his crimes.  He would not be convicted by the spineless Senate, so impeachment would have to be justified by its declaration alone.  Persuasive arguments have been made for and against.  My initial reaction was that it would be a bad idea.  It would allow Trump to complain again about how Democrats, jealous of his election, are conspiring to bring him down, to stage a coup. The legal pointlessness of impeachment would feed that narrative.  It would take some time to vote impeachment, especially given the lack of consensus among Democrats.  The election season already is under way, and impeachment might seem a late, desperate, attempt to tip the scale.
     Also, the House does not need an impeachment resolution to investigate Trump’s actions.  Pursuing new avenues and adding evidence to known scandals might doom his chance of reelection, so removal, though delayed, would be by conventional means.  Democrats also need to address, and need to be seen addressing, issues other than Trump’s character.
     However, the point remains: he is unfit for office.  Do we accept that as just one of the facts of contemporary politics?  Do we in effect declare that obstruction, along with Trump’s other disqualifying traits and actions, is acceptable because declaring  otherwise might be politically risky?  Should the House duck its constitutional responsibility and hope that voters do its job?   Caution in the face of menace often doesn’t produce good results.   In addition, Trump and his supporters will accuse the Democrats of all sorts of jealous, divisive misconduct even if they make no move toward impeachment, so the risk may not be as great as it seems.  
     If impeachment were to proceed, what should the articles allege? Obstruction, as detailed in the Mueller report, is obvious, and Republicans would be hard pressed to claim that such a charge is unwarranted, given the obstruction article in the Clinton impeachment, based on trivial underlying issues.  Trump has entered phase two of obstruction, refusing document requests by Congress, interfering with testimony, and suing third parties to prevent cooperation with Congress.  This form of obstruction undermines Congress’ oversight role and threatens the equality of the branches of government.  Trump justifies this interference by arguing that requests for information must be limited to supporting proposed legislation, in effect that Congress has no oversight authority.  The implication is that, in order to investigate, the House must be pursuing impeachment.  It may as well take that hint too.
     Mueller found no conspiracy with Russia, but Trump and his campaign staff clearly welcomed its interference.  There couldn’t be a clearer demonstration of that than Trump’s public appeal to Russia on July 27, 2016 to publish Hillary Clinton’s emails.  That alone may have been a crime and, as election hacking by foreigners clearly is a crime, it it suggested that a President Trump would have little regard for the constitutional duty to take care that the laws be faithfully executed.
     A citizen is said to have asked this of Benjamin Franklin about the work of the Constitutional Convention: “Well, Doctor, what have we got—a republic or a monarchy?” His reply: “A republic, if you can keep it.”  That warning, apocryphal or not, deserves attention.  Trump’s authoritarian aspirations are revealed by his respect for foreign strong men, most recently demonstrated by his hosting Viktor Orbán, who knows how to deal with pesky news media.  Trump, due to ego-driven instinct and as a reaction to threats, is giving the imperial presidency a new meaning, emulating a monarch, attempting to rule independent of the first branch.  Congress needs to take action to preserve the Republic.
     Trump is unique among Presidents in the degree to which he puts the country in peril.  That should tip the balance: we can’t afford another term or another Trump.

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37.
https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024- p0222_0.pdf


38.
https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1



Tuesday, April 23, 2019


April 22, 2019   
The awful Notre Dame fire struck me as the loss of a friend, a haven, a symbol of permanency in a time of flux, a symbol of values in a time of self-absorption.  (A tourist taking a selfie in front of the cathedral is the perfect, mocking, image of the new age).  Damage to an architectural wonder of the past is sadly appropriate to a world which knows nothing of beauty and parades nonsense as art and violence as entertainment.
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I dislike hanging crepe with every post, but it’s difficult not to see disaster on the horizon.  Consider the inevitability of increasing climate-related damage and the physical and social turmoil it will bring.  Add the hostile, separatist, violent attitude of many on the right, and the ready availability of weapons, and it becomes easy to imagine civil war or armed chaos.  We are politically blocked from preventing the ecological disaster, and predisposed to a primitive response to it.
Look at the state of government.  Andrew Wheeler, a former coal-industry lobbyist, recently was confirmed by a docile, irresponsible Senate as Administrator of the Environmental Protection Agency, having been Deputy, then Acting, Administrator  since April 2018.  That would have been time enough to learn about the climate crisis, if he had any intention of doing so.  One lesson might have been the most recent National Climate Assessment, which found that “The impacts of climate change are already being felt in communities across the country.”  Wheeler will have none of that: “Most of the threats from climate change are 50 to 75 years out.”  There have been no fires and no flooding; the seas haven’t risen or become more acidic; all is well.  Wheeler is, of course, in step with his leader. 
David Bernhardt was confirmed as Secretary of the Interior this month, having been acting Secretary since January. Already he is the subject of an investigation by the department’s inspector general, following various allegations of ethical violations.  His former role as a lobbyist for industries regulated by Interior lies behind the charges.
Trump nominated hacks to positions on the Federal Reserve Board, in an attempt to end its independence. Another appointee recently confirmed, William Barr, has demonstrated that his first duty is to protect the boss.  Trump first hailed the Mueller report as exoneration, but later decided it was an “Illegally Started Hoax.”  He has one of the great memories of all time, but repeatedly responded to Mueller’s written questions by pleading lack of recall.  He vents continually on Twitter, reportedly 50 times in 24 hours Monday and Tuesday.     
Ukraine just elected a comedian as president.  We have a bad joke.



Sunday, April 14, 2019

April 13, 2019 
The death penalty, apart from its questionable morality, bias in its application and the possibility of wrongful conviction, is an historical relic. This was made clear by the Supreme Court in Bucklew v. Precythe, decided April 1. The appeal involved a claim by a prisoner that the form of execution in his state violates the Eighth Amendment, which prohibits cruel and unusual punishments. His principal argument was that, because of his unusual medical condition, the lethal injection would cause great suffering before taking effect. The majority opinion, written by Justice Gorsuch, rejected the claim, along the way not only validating the death penalty but deciding that the infliction of pain in the process raised no Constitutional issue. 
The Bucklew decision did not appear from nowhere. Justice Gorsuch relied on two prior decisions, Baze v. Rees, 553 US 35 (2008) and Glossip v. Gross, 576 U.S. ___ (2015). The lead opinion in Baze was signed by only three Justices. However, Glossip treated the plurality opinion as if it were precedent, referring to it as the “controlling opinion.” Baze relied in turn on Gregg v. Georgia, the lead opinion of which was, again, that of only three member of the Court. It’s difficult to discern a well-considered theory of capital punishment in all of this. Bucklew follows their lead, but the defects in Gorsuch’s opinion go beyond following flawed predecessors. 
Much of the Bucklew opinion is devoted to the question of whether an alternative, less painful method, of execution is available. Baze and Glossip establshed rules which placed the burden of identifying an alternative method on the prisoner and made it difficult to carry that burden. 
The death penalty itself poses no problem for Gorsuch because the “Constitution allows capital punishment. . . . In fact, death was ‘the standard penalty for all serious crimes’ at the time of the founding.” The internal quote is from a book on the history of the death penalty published in 2002.[32] It appears to have been a primary source for Gorsuch, cited seven times in his opinion. However, the Constitution does not “allow” capital punishment; it simply recognizes its existence. True, the Baze plurality opinion cited “the principle, settled by Gregg, that capital punishment is constitutional.” However, the Gregg lead opinion stated only “that the punishment of death does not invariably violate the Constitution,” which is not quite the same concept. 
There would seem to be no impediment to the Court’s declaring capital punishment a violation of the Eighth Amendment, but Justice Gorsuch thinks otherwise. The Court, in his view, would lack the power or authority to declare it unconstitutional: “the judiciary bears no license to end a debate reserved for the people and their representatives.” It will be interesting to see whether he is so reticent when an issue he feels strongly about arises. 
As to the merits, Gorsuch would not find that the death penalty is barred as cruel punishment. For authority, he cited a case from 1890 which declared that “the punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies . . . something inhuman and barbarous, something more than the mere extinguishment of life.” [33] It’s stunning that a Supreme Court opinion in 2019 could refer, even by way of citation, to the “mere” extinguishment of life. 
An enlightened approach would be to interpret the Constitution against the background of present conditions, including less brutal attitudes, rather than treating it as holy writ, ending progress in 1791. That the latter is Justice Gorsuch’s theory is made clear. The opinion’s argument relies on such phrases as “at the time of the framing,” “consistent with the Constitution’s original understanding,” “at the time of the Amendment’s adoption,” “the original and historical understanding of the Eighth Amendment.” 
The Court has not always felt bound by the view of life at a time long past. In 1958, Chief Justice Earl Warren expressed an interpretation which has been generally accepted: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[34] That was reaffirmed in 2002, in Atkins v. Virginia, an Eighth Amendment death penalty case: “A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail." [35] No longer, apparently. Presumably the present Court would find the fact that twenty states and the District of Columbia now do not impose the death penalty,[36] an indication of evolving standards, to be irrelevant. Perhaps if a few more states evolve, capital punishment will become “unusual.” No, that wouldn’t conform to the understanding at the time of the Amendment’s adoption, which underlies Gorsuch’s interpretation. 
“[W]hat unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment . . .” Apparently a new form of barbarity would not be banned as unusual. As to the other element, the Amendment barred anything that “intensified the sentence of death with a (cruel) superadd[ition] of terror, pain, or disgrace.”[37] Therefore, the added, possibly avoidable, pain in the execution of Mr. Bucklew isn’t prohibited on the ground of cruelty either, as it isn’t intentional torture, just part of the process. 
As to the prisoner’s argument about the pain he would, uniquely, endure, Gorsuch advised us that, in the bad old days, prisoners were subjected to barbaric practices such as drawing and quartering, and those were the cruel punishments contemplated at the end of the Eighteenth Century and therefore barred by the Eighth Amendment. Pain imposed by execution couldn’t be an issue because the preferred method of execution at the time of its adoption was hanging and, although hanging often resulted in significant pain, its use “was virtually never questioned,” quoting his favorite source. 
What does his history lesson disclose as to the proper interpretation of the Eighth Amendment? “For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.” In that remarkable statement, he excused the infliction of pain on historical grounds, then leaped to an-eye-for-an-eye excuse. 
If defense of the death penalty, and the suffering it inflicts, requires as convoluted an argument as this opinion, there must be something fundamentally suspect about it. 
Postscript: 
As I was about to post this note, I came across an article reporting a decision in a similar case from a different state, but again involving a death-row prisoner’s request for an alternative to lethal injection. The Supreme Court decided 5-4 that the execution could proceed as planned. The article stated that the “high court’s order and dissenting opinion underscored the divide between the court’s conservative and liberal justices over 11th-hour execution challenges,” noting also the dispute in the Bucklew case. 
However, it isn’t sufficient description, or enough justification, to label the Gorsuch opinion, or its predecessors, or any defense of the death penalty simply as conservative views. Conservatism, insofar as it is the tendency to honor tradition and resist hasty or ill-considered change, not only is respectable, but is necessary to preserve continuity and to prevent mistakes and disruption of social fabric. However, when it it becomes unthinking opposition to change or defense of the indefensible, it prevents progress, and when it is, as here, an unwarranted worship of the past, it binds civilization with rusty chains.
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32. S. Banner, The Death Penalty: An American History
33. In re Kemmler, 136 U. S. 436, 447 (1890)
34. , 356 U.S. 86 (1958)
35. 536 U. S. 304, 311 (2002)
36. Moratoria are in effect in another three states. https://deathpenalty.procon.org/view.resource. php?resourceID=001172
37. Quoting the concurring opinion of Justice Thomas in Baze, [internal quotes omitted].

Sunday, March 17, 2019


March 15, 2019
 In January, I commented on the failure of leadership in contemporary American politics, and skipped over the contribution by the people to that sad state.  Before addressing the latter issue, let’s try an intermediate analysis: does the problem lie with our political or social structures?
Historian Page Smith, in his book Redeeming the Time, said this: “I believe that the tendency of history, of all human institutions is downward, toward complacency, decadence, obtuseness, and coldness of heart, and that we are saved only by the often obscure but heroic efforts of men and women whose passion it has been to redeem the world.”[29]  The statement that we are saved by individual effort might suggest that the lack of individual leadership was the original problem.  However, it could be that institutions, as structures, have an inherent tendency toward obsolescence and failure.
The Roman Empire, The Holy Roman Empire and the various European colonial systems provide examples, as does the medieval Catholic Church, of institutional senility and collapse.   The United States began with a built-in trigger for dissolution; the conflict between free and slave states. The Constitution, brilliant achievement that it was, fudged on the issue of slavery.  The two regions competed for control of new territories and states, and eventually went to war.  The South, in seceding, chose one institution over another, adhering to slavery and declaring the Union to be obsolete.  
In the aftermath of the war, the Constitution was repaired and improved, and later additions, including votes for women, came peacefully.  However, it is showing its age again in the distortions of the electoral college. 
Capitalism is an institution which works well for society, but  only under the right conditions.  The rise of organized labor and establishment of its rights, and the imposition of reasonable regulations created a better system, but both of those controls have weakened and capitalism is another institution in an unhealthy condition.  
Now return to the role of the people.  The increased tribalism of American society turns differences of view into conflicts.  There are troublesome attitudes on the left, but the more disruptive ones come from the other side.  The attitude of the right toward government, ranging from Ronald Reagan’s disdain (“The most terrifying words in the English language are: I'm from the government and I'm here to help”) to  Grover Norquist’s fantasy (“reduce it to the size where I can drag it into the bathroom and drown it in the bathtub”) makes a search for consensus solutions next to impossible.   The outer fringe, such as militias and “patriot” groups threaten violence.  Even those with some sheen of respectability join in.  Here’s  Joseph diGenova, former U.S. Attorney: “We are in a civil war. The suggestion that there’s ever going to be civil discourse in this country for the foreseeable future is over.  . . . It’s going to be total war.”  His advice: “I vote, and I buy guns. And that’s what you should do.”[30] 
One survey after another reveals that Americans know little about the world, current affairs or science. There is an indifference or hostility on the part of many  to such “elitist” pursuits as reading newspapers or heeding experts.  Part of the blame again is institutional, as schools and even colleges seem not to teach such basics as U.S. history and civics, and mainstream media sometimes fail to educate, for example as to the extent and effects of climate change.  Any natural tendency toward misinformation is greatly exacerbated by the internet.  In effect, we have created an entity which, while it could have developed better citizens through greater dissemination of facts, threatens to destroy other institutions through rumor, propaganda, fantasy and falsehood.  The Russians used the web to influence the election, but we’re doing rather well at self-destruction without help.  Fear and resentment of others is built into most of us but, again, those tendencies can be minimized or exacerbated by leaders and institutions.
Allowing for all of that, the people are part of the problem.  Trump’s 90% approval rating among Republicans is proof enough.  Even one who receives political information from Fox or the dregs of the internet would have to close his eyes and cover his ears in order not to be aware that we are led by a buffoon and a liar.  Ignorance may be excusable; wilful ignorance is not.
All of this anti-government sentiment implicates another systemic weakness: “Our political institutions were not built to handle a highly polarized situation in which one side is hostile to the system itself.”[31]
So: Are the American people at fault for the present situation, or are we confronted by institutional failure?  Yes to both, but the real question is where do we go from here, which returns us to the need for, and present lack of, constructive leadership.  Perhaps 2020 will bring some improvement.  We’d better hope so.    

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29.
A People's History of the United States, vol. 8 (1987), p. 1140

30.
https://www.washingtonpost.com/politics/in-america-talk-turns-to-something-unspoken-for-150-years -civil-war/2019/02/28/b3733af8-3ae4-11e9-a2cd-307b06d0257b_ story.html?utm_term=.c87d3f657d86

31.
Hacker and Pierson, American Amnesia, p. 320
 

Monday, March 4, 2019


March 3, 2019
I offered descriptions of Donald Trump a few days ago.  Here are some others, along with some comments on the state of his Party:
Michael Cohen, in his testimony to the House Oversight Committee, offered this observation about his former boss: “He is a racist.  He is a con man.  He is a cheat.”  The term “boss” is mine, but it’s apt, given its organized-crime connotation, for Cohen told the committee “Mr. Trump called me a ‘rat’ for choosing to tell the truth – much like a mobster would do when one of his men decides to cooperate with the government.”  In a more measured comment, he said, “Mr. Trump is an enigma. . . . He has both good and bad, as do we all. But the bad far outweighs the good, and since taking office, he has become the worst version of himself.”[26]
The last phrase applies as well to the Republican Party.  Once it was a respectable political party with a proud history.  Now it is indeed the worst version of itself, ignoring the welfare of ordinary people, serving the wealthy and powerful, immune to new ideas, opposed to government regulation of business, and now reduced to toadying to one who should be shunned for driving the Party, already in decline, still further down.  Cohen made that clear: “I did the same thing that you're doing now for 10 years. I protected Mr. Trump for 10 years."[27]
An example of Republican decline and servitude to Trump is the Senate’s confirmation of a former coal lobbyist, Andrew Wheeler, to replace Scott Pruitt as head of the Environmental Protection Agency.  “Republicans said they have been delighted to discover Mr. Wheeler is as enthusiastic about repealing environmental regulations and promoting coal as Mr. Pruitt was, and are looking to him to cement Mr. Trump’s legacy as a warrior against what they see as regulatory overreach.”  In the face of increasing evidence of the effects of climate change, “Mr. Wheeler has moved to dramatically weaken two of former President Obama’s signature climate change initiatives, cutting emissions from power plants and from automobiles, while also proposing to make new coal-fired power plants easier to approve.”[28]  Senator Susan Collins of Maine was the only Republican to show the courage and good sense to vote against confirmation. 
The reaction to Trump’s emergency powers is showing  a slightly different pattern.  The House, with the support of 13 of the 195 Republicans, voted  to overturn Trump’s declaration, and speculation is that 4 of the 53 Republican Senators will join Democrats, with the same result.  That is encouraging and important, but hardly a repudiation of his administration. 
As long as we’re collecting  descriptions of Trump and his abettors, here’s one by way of metaphor:  The January 17, 2019 issue of the New York Review of Books includes a review of Thomas Cromwell: A Revolutionary Life by Diarmaid MacCulloch.  The reviewer, Keith Thomas, sums up a description of service under Henry VIII as follows: “Henry’s court was a fearfully dangerous place where courtiers jostled for the favor of a capricious monarch. . . . MacCulloch portrays the king as ‘terrifyingly unpredictable,’ given to ‘destructive whims’ and ‘habitually erratic’ decision-making, ‘a thorough coward when it came to personal confrontations,’ and ‘almost impossible to serve successfully.’ ”  Does that remind us of any other famous leader?  Thomas adds that “MacCulloch tactfully declines to draw an analogy with any modern head of state, though some of his American readers may be tempted to do so.”
Indeed.

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26.
https://www.nytimes.com/2019/02/27/us/politics/cohen-documents-testimony.html

27.
https://thehill.com/blogs/blog-briefing-room/news/431843-cohen-warns-gop- lawmakers-protecting- trump- i-did-the-same-thing

28. https://www.nytimes.com/2019/02/28/climate/andrew-wheeler-epa-confirmation.html



Monday, February 25, 2019


February 24, 2019
 There are two ways to evaluate Donald Trump as President.  We can tote up his lies, boasts, evasions,  fabrications and delusions, note his impulsiveness and dangerously bad ideas, then add the evidence of foreign influence and possible collusion leading to his semi-election, and reach the unavoidable conclusion that he should be removed from office.  Alternatively, we can shorten the list, simplify the task and reach the same result by recognizing that Trump is intellectually and emotionally a child, attempting to get his way through tantrums.  (The Nation ran a column entitled “Trump at Two,” referring to the midpoint of his term, but it could as well describe his level of maturity).
Making all reasonable allowance for party loyalty, political ambition and fear of reprisal, how can Congressional Republicans not conclude that, under either analysis, leaving Trump in charge is an unacceptable risk?
His current tantrum is the declaration of a national emergency to allow him to take funds from other programs, which he has discovered have money to spare, to build a wall.  He is so incompetent that he has declared that the wall isn’t urgently needed: “Well, I got $1.4 billion. . . .  I was successful, in that sense, but I want to do it faster.  I could do the wall over a longer period of time.  I didn’t need to do this.  But I’d rather do it much faster.”[20] He’d rather do something wasteful and unnecessary, requiring condemnation of private land and prompting multiple law suits, faster; that’s the basis for his seizure of more power.
The current plan is to spend the $1.375 billion authorized by Congress, plus these transfers from other funds: $600 million from the Treasury Department’s drug forfeiture fund, $2.5 billion from drug interdiction activities of the Department of Defense and $3.6 billion from the military construction budget.[21]  All this  to build a wall we don’t need. 
The national-emergency ploy was bad enough when Trump pretended that there was an urgent need for the wall.  Now that it’s just his whim, Congress should be in revolt.  Some Republicans indeed may rebel, but not all the movement relative to Trump has been away.  In 2015, Senator Lindsey Graham called Trump a “race-baiting, xenophobic, religious bigot,” and said that the way to make America Great again was to “tell  Donald Trump to go to hell.”[22]  In February 2016, Graham said of Trump “I think he's a kook. I think he's crazy. . . . He's not a conservative Republican, he's an opportunist. He's not fit to be president of the United States." [23]  In March 2016, Graham offered this prediction: “We're going to lose. You'll never convince me that Donald Trump is the answer to the problem we have with Hispanics. . . . Here's what I want to tell people when we lose to Hillary: I told you that the immigration issue is killing us. We're doubling down on the problem we have with Hispanics. We went from self-deportation to forced deportation. . . . So here's what I'm going to say in November when we lose: I told you so."[24]
The new Graham has seen the light: recently he tweeted, “If White House and Congress fail to reach a deal then President @realDonaldTrump must act through emergency powers to build wall/barrier.”  One segment of funds to be lifted from the military construction fund was to have built a new Fort Campbell Mahaffey Middle School in Kentucky.  Graham’s response: “I would say it’s better for the middle school kids in Kentucky to have a secure border. We’ll get them the school they need, but right now we’ve got a national emergency on our hands.”[25] 
Apparently the fact that Trump — unexpectedly — won transformed him from a race-baiting, xenophobic bigot into a statesman who recognizes that “the problem we have with Hispanics” is that there are too many of them, that any more would bring the country to its knees, that hordes are poised to pour across the border  and that only a wall will save us.  Graham is an extreme example of the attitude that has kept Congressional Republicans in line.

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20. From his rambling, incoherent Rose Garden press conference February 15.

21.https://abc3340.com/news/connect-to-congress/white-house-says-emergency-declaration- gives-trump-8-billion-for-border-wall

22. https://www.cnn.com/videos/politics/2015/12/08/lindsey-graham-donald-trump- xenophobic-bigot-interview-newday.cnn/video/playlists/lindsey-graham-2016/

23.https://thehill.com/blogs/ballot-box/presidential-races/269675-graham-republicans-will-get-slaughtered-if-trump-nominee

24.https://www.cbsnews.com/news/lindsey-graham-were-gonna-lose-to-hillary-clinton-with- donald-trump/

25. https://www.cbsnews.com/news/transcript-sen-lindsey-graham-on-face-the-nation-February-17- 2019/ 


Sunday, February 17, 2019


February 17, 2019
    There are two strong, dangerous trends today, climate change and the concentration of wealth.   Let’s look at the latter issue.
    The usual way to limit the accumulation of large fortunes is through taxation.  An automatic reaction from the right is to claim that high taxes will stunt growth.  That complaint is based on the notion that those receiving high income will invest and drive the economy, to everyone’s benefit.  If that trickle-down theory needed further debunking, the recent tax cuts provided it: much of the additional net income went to dividends and stock repurchases, further enriching the wealthy.
    The other standard response on the right is that redistribution is ethically wrong, but redistribution upward somehow isn’t included in the ban.  That attitude is, unfortunately, an American tradition.  Cordell Hull, who advocated income and estate taxes in the early twentieth century, put it this way: "An irrepressible conflict has been waged for thousands of years between the strong and the weak, the former always striving to heap the chief tax burdens upon the latter."
    There is no plausible reason that the wealthy should not pay more: more than they have recently and more proportionately than those less well off.  That is not punitive.  As Hull put it, “I have no disposition to tax wealth unnecessarily or unjustly, but I do believe that the wealth of the country should bear its just share of the burden of taxation and that it should not be permitted to shirk that duty. . . .[T]he chief burdens of government have long been borne by those least able to bear them, while accumulated wealth has enjoyed the protection and other blessings of the Government and thus far escaped most of its accompanying burdens.''[19]  That lesson, from a century ago, has been forgotten.
    Economic inequality is not simply an offense against fairness, it is a negative force.  Democracy is in peril because, among other reasons, wide economic divisions destroy any sense of our being in it together; wildly uneven distribution of wealth creates separate societies and separate political priorities.  Instead of the divisive “nationalism” of MAGA, we need a true national bond. 
    Can anything be done?   Elizabeth Warren has proposed a wealth tax.  In her formulation, it would be a yearly tax of 2% on household net worth above $50 million,  3% on net worth above $1 billion. My first reaction was negative; we should tax income, not property. 
    There are legitimate arguments in favor of a wealth tax.  One is that it would discourage the growth of family dynasties, but that can be addressed by restoring the estate tax to reasonable levels.  A better argument is that inequality in wealth has grown, in part because income and estate taxes have been slashed, and only a wealth tax will address that problem.  That there is huge and growing inequality is undeniable, as is its negative effect.
     However, I think that a wealth tax would be unmanageable.  It would require valuing a myriad of assets — annually — many of which have no realistic market value, such as art works, and it would be easy to avoid by, for example, splitting family assets into units falling below the tax threshold, assigning those units to various family members or other nominees.  There also is some concern that a wealth tax would be unconstitutional.
    A better plan is to overhaul the income and estate tax codes, raising rates and eliminating the lower income tax rate for capital gains, which are a vehicle for the rich to get richer.

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19. Hull quotes are at http://www.taxhistory.org/thp/readings.nsf/ArtWeb/F6769F770B0FC 289852 5803700432EE1?Open Document   (53 Cong. Rec. 10652)  

Wednesday, February 13, 2019


b>February 12, 2019
            Apparently I had been bad, for my resident conscience insisted that we watch the State of the Union address.  Which of my sins could have been so serious as to deserve such punishment?  I must reflect.
            A columnist had suggested recently that the S of the U was obsolete and should be scrapped.  I thought that to be extreme, but after watching about forty minutes of this one, I am tempted to agree.  True, not every President will be as pathetic as Trump, but the standing ovations, not merely ritualistic but signifying support for or at least tolerance of his delusions, indicated that the Congress is a group not to be subjected to stress.  Clearly it is not strong enough to resist assaults on its intelligence, and needs to be protected.
            Thinking about the fallen state of the nation, the metaphor, barbarians at the gates, came to mind, but Trump has seized and misused that image, so let’s just refer to our decline and fall; the former is well under way and, far from making us great again, Caesar Donald is pushing us toward the latter.

Monday, February 4, 2019


February 3, 2019
     Rachel Maddow has pointed out that several of Trump’s allegations about the border — “trafficked women in cars at the southern border, their mouths taped shut . .  Muslim prayer rugs in the southern desert  . . smugglers’ amazing cars” — are scenes from a movie. 
     She’s done a service by pointing out that Our Leader’s build-the-wall obsession is based on fiction, but she was slightly off in this comment: “Now  in any normal  administration it would be insane to suggest . . . even joke about the president of the United States seeing stuff in a movie . . . and maybe thinking it was real — or at least real enough to justify an actual military deployment of thousands of active duty U.S. troops to the border.”  Leaving aside the reference to deployment, that’s not quite so;  This is not the first time that a President has been accused of confusing movies and reality.
     There were two credible reports that President Reagan stated, in discussing the Holocaust and describing concentration camps, that “he had served as a photographer in a U.S. Army unit assigned to film Nazi death camps” or, in the second exchange, that he was "a member of the Signal Corps taking pictures of the camps."  Reagan wasn’t there; his wartime service was in Hollywood making training films. Apparently he confused seeing films to with taking them.[17]
     (Trump isn’t even original in using Make America Great Again as a slogan.  Bill Clinton used the phrase in speeches in 1992 and, in a 2008 ad, said  Hillary “Will Make America Great Again.”  Campaign posters and buttons for Reagan in 1980 read “Let’s Make America Great Again.”) [18]    
     Former Presidents have had  flaws, some serious, but the incumbent stands alone in his combination of insecurity, lack of political experience and low intellect, and in his compensating boasting, bluster, and disdain of expert advice. Does the country have a problem? “I alone can fix it.”  Has someone pointed out his lack of smarts?  “Sorry losers and haters, but my I.Q. is one of the highest -and you all know it! Please don't feel so stupid or insecure, it's not your fault."  Do intelligence professionals see the world differently than he does?  They “should go back to school.”
     Speaking of presidential delusions — in this case those of a presidential hopeful — Howard Schultz, unpopular in his home town for selling the Seattle SuperSonics (now the Oklahoma City Thunder ), has achieved that status on a national scale by declaring his interest in running for President as an independent.  Assuming that he drew enough votes in a critical state or two, and assuming that he, a nominal Democrat, drew more from the Democratic candidate, he would cause Trump to win again, presumably not his aim.  His delusions are twofold; that he could win, not merely be a spoiler, and that there is a large constituency for his platform of social liberalism and fiscal conservatism.  Maybe he got his ideas from a movie.

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17. Article by Lou Cannon, https://www.washingtonpost.com/archive/politics/1984/03/05/ reagan-38/26b480c6-3d54-46d0-b0fe-1c426c139847/?utm_term=.a1dcbcce7b64. 
See also Cannon’s book President Reagan: the Role of a Lifetime, pp. 486-89.

18.
https://en.wikipedia.org/wiki/Make_America_Great_Again#cite_note-8