Wednesday, December 25, 2019

December 24, 2019
I had difficulty thinking of anything to write which would be appropriate for Christmas.  Good news and happiness are in short supply, and the state of American Christianity is depressing.  Then I stumbled across notes from our travels which suit the season.
There are many examples of, to borrow a line, the kindness of strangers.  People have helped us find the right bus or subway or otherwise given directions.  Once a driver we encountered at a gas station drove ahead of us for some distance to lead us to a highway entrance.  The two outstanding examples involve money. 
Several years ago, in Florence, as we left a church, we were surrounded by a group of young girls.  I had, foolishly, put my wallet in a front, pass-through pocket of my jacket .  The girls pushed things at us, ostensibly to get us to buy something, but in reality to disguise a hand in my jacket pocket.  After they stepped back, I noticed that the wallet was gone and exclaimed, brilliantly, “my wallet is gone.”  The girls, apparently not wanting to look guilty, had not run away.  A  man who had been sitting with a friend on the steps, came over, reached up under the back of the jacket of the oldest girl, retrieved my wallet and handed it to me.  Obviously he had seen this routine before.  As I thanked him in imitation Italian, he returned to his friend, not expecting a reward. 
Two years ago, we were at Heathrow in London.  When, at the beginning of our tour, we had taken a cab from hotel to airport, we had paid with a credit card.  On our return, casually assuming that we could do the same, I didn’t bother getting cash while at the airport.  We queued up at a taxi rank and, when our time came, were informed by the loader that no taxis there would accept cards.  As I prepared, with much grumbling, to return to the terminal, a man in the queue stepped forward and handed me a £50 note.  Amazed, I tried to decline, then asked for his name and address so that I could repay.  He waived both aside.
Two glimmers of light in the darkness.

Saturday, November 23, 2019

November 23, 2019
Republicans are thrashing about, attempting to obscure the obvious, that Trump has committed an impeachable offense.  Among other ploys, they have seized on a statement by Ambassador Sondland to prove that Trump did not propose a corrupt bargain with Ukraine.  Here is Sondland’s testimony: In a September 9 telephone call, Trump said, “I want nothing. I want nothing. I want no quid pro quo. Tell Zelenskiy — President Zelenskiy to do the right thing,[87] ” 
Is “quid pro quo” part of Donald Trump’s usual discourse?  That alone should make one suspicious that the statement was not to be taken as the truth.  Add the fact that the conversation took place after the phone conversation in which Trump asked Zelinsky to give him political dirt (July 25), after the whistleblower’s initial complaint about the call was made known to the White House,[88] and after the whistleblower’s formal complaint was filed (August 12).  The Trump statement was an attempt at coverup by a man who knew he was in trouble.
As to Trump’s statement that he wanted nothing from Zelinsky, recall that, on June 12, he had said this “If somebody called from a country, Norway, [and said] ‘we have information on your opponent' -- oh, I think I'd want to hear it."
In various ways, some factual, some not, Trump’s defenders have argued that there can’t be an offense because Trump wasn’t successful in his attempt at extortion.  A variant of that, and perhaps the ultimate fallback position was adopted by a columnist at The Washington Post, Marc Thiessen.  As with other Trump defenders, consistency is not a consideration.
He complained in 2013  that the Obama administration was “conducting foreign policy by faux pas,” that its actions regarding Syria were “driven not by deliberate strategy but by slips of the tongue. . . There is no plan, no coherence to anything this administration is doing on Syria."[89]   Incompetence was something to be avoided, condemned.  That was then; now presidential incompetence is a good thing, for it provides a defense is against impeachment.
Thiessen quoted another Trump apologist, Lindsey Graham: “What I can tell you about the Trump policy towards the Ukraine is that it was incoherent.  . . . They seem to be incapable of forming a quid pro quo.”  Thiessen added: “Graham may be right. Wednesday’s [November 13] impeachment hearing certainly provided no new evidence that Trump had a coherent strategy to use U.S. security assistance, and the prospect of a presidential meeting, to get Ukraine to investigate his political rivals.”[90]  Apparently a scheme is not improper unless artfully designed and adroitly carried out.
The testimony thus far, according to Thiessen, presumes “that the president knew what he wanted. It’s not clear he did. His handling of Ukraine seemed less the execution of an intelligible plan than a chaotic mishmash of constantly changing urges and demands.”   Does that relieve him of responsibility?  According to the Thiessen theory, yes: “[I]t looks as though the entire Ukraine debacle may be the result less of intent than incompetence. And unfortunately for Democrats, incompetence is not an impeachable offense.”  We might reasonably ask whether one incompetent to carry out so elementary a scheme as conditioning aid on a favor might be incompetent to be president.
Not only is incompetence not a defense to impeachment, it is a ground for it.  That should be obvious: a president who cannot discharge his duties is a danger to the country. Consider the condition of the executive departments, where ignorance, bias, self-dealing, conflict of interest and denial of scientific fact are rampant.  The President has a duty to prevent such corruption.  He has the power of appointment and removal, and bears a corresponding obligation to see that his subordinates discharge their duties.  That is not a radical notion.
James Madison said this in a debate in the first Congress about executive power: “I think it is absolutely necessary that the President should have the power of removing [subordinates] from office; it will make him responsible for their conduct, and subject him to impeachment himself, if he . . . neglect to superintend their conduct, so as to check their excesses.”[91]
It is understandable that House Democrats have focused on the Ukraine conversations because they present a clear dereliction of duty.  However, we shouldn’t lose sight of the fact that Trump’s time in office has been a workshop in impeachable dereliction.  Obstruction, both of the Russian-interference  investigations and the present hearings, is another instance.  As it is unlikely that Trump will be removed from office by the Senate, it is important, for 2020, to make a broader case for unfitness to the voting public. 


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91. Impeachment: Selected Materials, Committee on the Judiciary, House of Representatives, 1973, p.11

Tuesday, November 12, 2019

November 12, 2019
The new gun-control law in Washington has, predictably, generated opposition.  Some of that has come from the usual suspects.  The NRA and The Second Amendment Foundation have sued, claiming that it violates various constitutional provisions.
A small meeting of opponents of the law brought together two other factions which, in their different ways, demonstrate the growing tendency of the right wing of American culture and politics to separate itself into a hostile, potentially dangerous camp. The Seattle Times described the meeting: “So intense is the distress over new firearms regulations in the state, and [Attorney General] Ferguson’s support of them, that a group of 35 or so came together to discuss what many saw as a constructive next step: Go to court to file citizen complaints against Ferguson or maybe even attempt a citizen’s arrest of him.”[81] 
The first group consisted of members of the local branch of the  Three Percenters, an organization marked by paranoia about government oppression.  The name of the organization refers to its “rough  estimate  that only 3%  of the colonists were  actively fighting  in  the field” against the British during the Revolution.  The Three Percenters see themselves as descendants of that small patriotic band.
The web site of Washington chapter states: “We are God fearing Patriots that support our constitution, and promise to defend our country, our community, and our families from all enemies foreign and domestic.  We follow the tenants [sic] set forth by the founder of the Three Percent movement, Mike Vanderboegh.”[82]  Their By Laws recite that “Our goal is to utilize the fail safes put in place by our founders to reign [sic] in an overreaching government and push back against tyranny.”  Diction obviously is not the organization’s long suit.  First on its list of oaths is “I will  NOT obey orders to disarm the American people.”[83]  Rational gun control is, apparently, disarming.
The site links to that of  “The Sipsey Street Irregulars,” which contains a long “Catechism” for Three Percenters written by Vanderboegh.  It includes this:  
The Three Percent today are gun owners who will not disarm, will not compromise and will no longer back up at the passage of the next gun control act. . . . We intend to maintain our God-given natural rights to liberty and property, and that means most especially the right to keep and bear arms. Thus, we are committed to the restoration of the Founders' Republic, and are willing to fight, die and, if forced by any would-be oppressor, to kill in the defense of ourselves and the Constitution that we all took an oath to uphold against enemies foreign and domestic.[84]
One of those at the meeting said, of Ferguson, “I want to see him go to prison for treason. But I wanted the backing of the sheriff, because I don’t want to get shot by the state police.”  Anyone on the other side is guilty of treason; an armed confrontation is coming: these are the elements of a dangerous and increasingly common mind set. 
Will his sheriff protect him?  That’s a possibility.  Sheriffs present at the meeting and in the background form the second group.    At the meeting, the Sheriff of Thurston County claimed he has the power to swear in a militia.  He said he would not do so at present, but merely claiming that probably non-existent power hints at violent separatism.
Following a reference to the Sheriff’s statement, a Times editorial on the meeting described a comment by Gary Edwards, a Thurston County Commissioner: “Edwards, a former sheriff, went further, warning of dire consequences if President Donald Trump cannot thoroughly pack the courts.  ‘If we’re not lucky, we might have a revolution,’ Edwards said.”[85]   The relevance of the court-packing reference wasn’t explained in the editorial but, whether or not connected to gun control, Edwards’ comment is more divisive rhetoric.
Thirteen of Washington’s thirty-nine County Sheriffs have declared that they will not enforce the new gun-control law, or parts of it.[86]     One declared: “My job as a sheriff is to throw bad guys in jail, but it’s also to protect the constitutional rights of citizens of our county. I follow the rule of law when I believe it’s constitutional.” I wonder whether he would tolerate that selective attitude in the public. That position demonstrates the irrational extremes to which gun-rights thinking drives people.  Law enforcement officers, confronted not only by the usual level of crime, but by a flood of guns and the separatist fantasies of people like Three Percenters, ought to be the last to oppose controlling that flood.
 Trump, on September 29, launched a tweet, in part quoting a statement by an evangelical supporter, which feeds those fantasies and encourages thoughts of violence: “If the Democrats are successful in removing the President from office (which they will never be), it will cause a Civil War like fracture in this Nation from which our Country will never heal.”     They’ll never get me, but if they do, rise up.
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Wednesday, November 6, 2019


November 6, 2019

Liberals, and the Democratic Party to the extent that it is controlled by liberals, have a strong tendency to court political self-destruction by carrying good ideas too far.  They forget that, whether they like it or not, many Americans are either less liberal than they, or are annoyed by what seems to be liberal arrogance, or both.  Unable to learn, resentfully unaware that criticism might be valid, they play into the hands of the reactionaries by plunging ahead.  I’m afraid that the Democratic primary race may be another example of this unfortunate tendency.  One of my concerns is the Medicare plan put forth by Elizabeth Warren.

Donald Trump is the worst President in American history, but because he has a loyal following, and because of the peculiarities —to put it generously — of the electoral system, with the aid of vote suppression (and, dare we say, foreign help), he might limp into another term.  I must say that I still find that unlikely, but polls show that it could happen.  In any case, it would be foolish for Democrats to ignore the possibility. Any program or attitude which drives away voters who are not committed Democrats, whether we describe them as independent, moderate, centrist, or whatever, would be ill-advised.
Senator Warren is one of the most admirable figures in contemporary politics, and her generous instincts and intentions cannot be doubted.  However, her advocacy of Medicare for all and her tax plan to fund it seem to me to fall into the familiar self-destructive category.  A recent poll showed Senator Warren trailing Trump in Michigan, Florida and North Carolina, only even with him in Pennsylvania and Wisconsin.  (Biden does better).[78]  Her plan may contribute to that showing.

Senator Warren’s tax plan seems a work in progress and descriptions of it by her campaign have varied, but its main outlines are troublesome.  The summary set forth here [79] shows that the plan is questionable as policy and as to its fiscal assumptions.  (It does contain independently valid proposals such as repealing the Trump tax cuts and taxing foreign earnings).  As I noted earlier,[80] the proposed wealth tax, which has grown to help fund Medicare, would be difficult to enforce.  Chances of getting the plan through Congress aren’t high, so advocating it may be pointlessly divisive.

The structure is complicated enough that, even if technically sound, it would be confusing and disruptive in application. It is a radical shift; incremental changes often are more successful and less frightening. Most importantly for 2020, it plays into the Republican cry of Socialist regimentation! by abandoning private insurance and increasing government control. 



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80. See my note of February 17, 2019.

Monday, October 28, 2019

October 27, 2019
Donald Trump boasts, exaggerates, tells lies and generally plays the buffoon.  He is incompetent and dangerous.  Some who have been on his staff in the past have attempted to bring some level of rationality to the White House, but others pretend that Trump‘s babbling makes sense.
John Kelly, former Chief of Staff, who falls into the former category, recently described a conversation with the President shortly before his departure: “I said, whatever you do — and we were still in the process of trying to find someone to take my place — I said whatever you do, don’t hire a ‘yes man,’ someone who won’t tell you the truth — don’t do that. Because if you do, I believe you will be impeached.[75]  Trump denied that any such meeting took place.   
His “Press Secretary,” Stephanie Grisham, whose assignment is to avoid and malign the news media, demonstrated that she belongs to category two by offering this rejoinder: “I worked with John Kelly, and he was totally unequipped to handle the genius of our great President.”[76]
It is Kelly’s replacement, Mick Mulvaney, who can’t handle Trump’s genius, i.e. cover for him and maintain some level of deniability.  Instead, when interviewed about withholding funds from Ukraine, he acknowledged that Trump subordinated foreign policy to domestic politics.  (The reference is to “unproven claims that Ukrainian officials assisted Hillary Clinton’s 2016 presidential campaign,” including a “debunked conspiracy theory that a hacked DNC server was taken to Ukraine in 2016 to hide evidence that it was that country, not Russia, that interfered in the presidential election.”) [77]

QUESTION: So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MULVANEY: The look back to what happened in 2016 certainly was part of the thing that he was worried about in corruption with that nation, and that is absolutely appropriate.

QUESTION: Withholding the funding?

MULVANEY: Yeah, which ultimately then flowed. . . .

QUESTION: But to be clear, what you just described is a quid pro quo. It is, funding will not flow unless the investigation into the Democratic server happened as well.

MULVANEY: We do — we do that all the time with foreign policy. . . . And I have news for everybody. Get over it. There is going to be political influence in foreign policy.
The White House, the “fine-tuned machine” and “well-oiled machine” of Trump’s boasts, is managing, simultaneously, to obstruct and aid the impeachment inquiry.



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Saturday, October 26, 2019

October 26, 2019
If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”   That quote, attributed to Carl Sandburg, usually applied to trials, sums up reaction by Republican to the impeachment inquiry.  Unable to defend Trump on the facts, they have tried arguing the law, claiming that the process adopted by the Democrats is unlawful, unfair and unconstitutional.
However, the Constitution vests in the House the power of impeachment, so the last argument evaporates.  The accusations of unfairness and illegality have two forms.  The first is that the procedures followed by the Democrats are unprecedented, but they are the procedures used in the past by Republicans.  The claim that Republicans are frozen out of the process ignores the presence of GOP members on the various committees. 
The second form has been pushed by Senator Graham, who calls on his legal experience to claim that Trump should have defense counsel present at the hearings.  The Senator, despite his training, apparently does not understand the difference between indictment — the grand jury process — and criminal trial, nor between impeachment by the House and trial by the Senate.   (While he’s offering up legal analogies, he might want to reflect on his future status in a trial before the Senate; jurors are supposed to be unbiased).
A gaggle of House Republicans, sensing the failure of their arguments on law as well as facts, moved on to yelling and pounding , in this case at the door of the conference room where a Defense Department official was about to testify to a committee considering impeachment.  They milled about, interrupting the hearing for five hours.  It would be hard to imagine a clearer showing of desperation than this resort to adolescent bullying by alleged supporters of due process.
Given their level of clear thinking, we might expect, when the inquiry moves to pubic hearings, a Republican argument that proceedings should be held behind closed doors, since public revelation of Trump’s malfeasance would be unfair to him.
The sad, tragic, frightening aspect of the Republicans’ mindless defense of their leader is the tribalism it reflects and encourages.  Providing an example, a major league umpire reportedly tweeted: “I will be buying an AR-15 tomorrow, because if you impeach MY PRESIDENT this way, YOU WILL HAVE ANOTHER CIVAL[sic] WAR!!! #MAGA2020.”
Trump, showing signs of panic, feeds that us-versus-them divisiveness; in a recent tweet, he declared war even on fellow Republicans: “The Never Trumper Republicans, though on respirators with not many left, are in certain ways worse and more dangerous for our Country than the Do Nothing Democrats. Watch out for them, they are human scum!”  Was that simply Donald being over the top?  No; it’s official White House doctrine.  Press Secretary Stephanie Grisham, asked whether Trump regretted “human scum,”  replied: “The people who are against him and have been against him and working against him since the day they[?] took office are just that.” 
Trump must be removed from power, by impeachment and conviction or by election, but the aftermath may not be pleasant.

Tuesday, October 15, 2019

October 15, 2019
 Does anyone have any idea what Trump is up to regarding Turkey, Syria and the Kurds?  The mystery began when Our Leader decided — if any of his blithering outbursts can be described as decisions — to allow Turkey to invade the Kurdish area of northen Syria.  As an article in The New York Times summarized it, “the White House said on Sunday [October 6] that President Trump had given his endorsement for a Turkish military operation that would sweep away American-backed Kurdish forces near the border in Syria.”  American forces which have protected the Kurds would have been in the way. “Administration officials . . indicated that the 100 to 150 United States military personnel deployed to that area would be pulled back in advance of any Turkish operation . . . .” 
 In the sanitized language of the press secretary, "Turkey will soon be moving forward with its long-planned operation into Northern Syria. The United States Armed Forces will not support or be involved in the operation, and United States forces, having defeated the ISIS territorial 'Caliphate,' will no longer be in the immediate area." Turkey proceeded to invade.  Later, most of the American forces were scheduled to leave Syria.
 The withdrawal was in aid, supposedly, of Trump’s desire to reduce our involvement in the Middle East.  Then, again, accommodating Turkey may stem from his personal financial interests. In December, 2015, he admitted that motivation: “I have a little conflict of interest ’cause I have a major, major building in Istanbul. It’s a tremendously successful job. It’s called Trump Towers . . . .” [74]  Or, he may have decided to reward his buddy Putin; Russia is among the winners in this debacle.  With the Donald, there are various possible rationales for his actions; only the good of this country or our international reputation seem to be ruled out.
Perhaps Saudi Arabia, where we are sending more troops, doesn’t qualify as Middle Eastern in his geography.   He justified deserting the Kurds by pointing out inanely that they didn’t help us on D-Day.  I doubt that the Saudis were there either, but they were very much in evidence on 9-11, which conveniently is forgotten, as is the murder of a Saudi-American journalist.
The willingness of Congressional Republicans and conservative Christians to support Trump has been and remains a puzzle, but it seemed to have reached the breaking point for many, who condemned his desertion of the Kurds.  They may now return to fawning, as Trump, in a characteristic flip flop, threatened to punish Turkey for doing what he allowed it to do.  
As I have stated strongly before, and just to reiterate, if Turkey does anything that I, in my great and unmatched wisdom, consider to be off limits, I will totally destroy and obliterate the Economy of Turkey (I’ve done before!). They must, with Europe and others, watch over...
 ....the captured ISIS fighters and families. The U.S. has done far more than anyone could have ever expected, including the capture of 100% of the ISIS Caliphate. It is time now for others in the region, some of great wealth, to protect their own territory. THE USA IS GREAT!
        8:38 AM - Oct 7, 2019

Trump signed an order on Monday, October 14, imposing sanctions on Turkey.  He issued this statement at 12:55 p.m.:
This Order will enable the United States to impose powerful additional sanctions on those who may be involved in serious human rights abuses, obstructing a ceasefire, preventing displaced persons from returning home, forcibly repatriating refugees, or threatening the peace, security, or stability in Syria.
However, continuing to demonstrate that he has no clue, at 12:10 p.m. that day he had returned to justifying his original act, in this tweet:
After defeating 100% of the ISIS Caliphate, I largely moved our troops out of Syria. Let Syria and Assad protect the Kurds and fight Turkey for their own land. I said to my Generals, why should we be fighting for Syria . . . .
....and Assad to protect the land of our enemy? Anyone who wants to assist Syria in protecting the Kurds is good with me, whether it is Russia, China, or Napoleon Bonaparte. I hope they all do great, we are 7,000 miles away!

(Actually, Syria is about 6,000 miles from Washington DC, and Saudi Arabia is about 6,700, so distance doesn’t have much to do with his affinities).  He seems unaware that our forces were not fighting for Assad.  Leaving aside whether ISIS is entirely defeated, and what Trump had to do with it, abandoning the Kurdish area resulted in losing control of ISIS prisoners, who may be free to do more damage.  
A dumber move, even given his supposed priorities, hardly could be imagined.  Apparently someone pointed that out to him, for at 4:14 a.m. on October 14, he tweeted this regarding the prisoners, adding incoherent comments for good measure:
Kurds may be releasing some to get us involved. Easily recaptured by Turkey or European Nations from where many came, but they should move quickly. Big sanctions on Turkey coming! Do people really think we should go to war with NATO Member Turkey? Never ending wars will end!
If this episode, underscoring Trump’s incompetence and his dire effect on American reputation and security, doesn’t cause large permanent desertions from the fold, nothing will.


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Thursday, October 10, 2019

October 8, 2019

On June 27, the Supreme Court decided Rucho v. Common Cause, in which it declared, in an opinion by Chief Justice Roberts, that it will not interfere with partisan gerrymandering.  That probably should not have been a surprise; the Court already had declared its lack of interest in protecting the right to vote. 

In Shelby County v. Holder (2013), the Court, again speaking through Roberts, struck down part of the Voting Rights Act which imposed restrictions — known as pre-clearance requirements — on changes in voting procedures by jurisdictions with a history of racial discrimination.  The Court’s ruling had the predictable effect: “A new report . . . from The Leadership Conference Education Fund examined 757 of the 860 counties that were covered by pre-clearance requirements. They found that since Shelby, nearly 1200 polling places in those counties, mostly in minority communities, have been shuttered.”[73]  The Court’s facilitation of that step backward was based on a misreading and misapplication of the Tenth Amendment, the last refuge for states-righters.

In Rucho, the Chief Justice was joined by Justices Thomas, Alito, Gorsuch, and  Kavanaugh.  Justice Kagan wrote a dissenting opinion, joined by Justices Ginsberg, Breyer and Sotomayor, forming a conservative-liberal split.

The case involved gerrymandering in Maryland (favorable to Democratic candidates) and North Carolina (favoring Republicans).  Each disfranchised voters by deliberately placing them in districts in which the candidate of their chosen party could not be elected, in effect denying them a vote. “Voters and other plaintiffs in North Carolina and Maryland challenged their States’ congressional districting maps as unconstitutional  partisan gerrymanders. . . . The District Courts in both cases ruled in favor of the plaintiffs, and the defendants  appealed directly to [the Supreme] Court.”  Should such maps be ruled invalid?

The Court ducked the question, first holding it to be beyond its authority and ability, i.e., nonjusticiable:
Sometimes . . . “the  judicial  department  has  no  business  entertaining  the  claim  of  unlawfulness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). In such a case the claim is said to present a ‘political question’ and to be nonjusticiable — outside the courts’  competence  and  therefore  beyond  the  courts’  jurisdiction. Baker v. Carr, 369 U. S. 186, 217 (1962).  Among the political question cases the Court has identified are those that lack “judicially  discoverable and manageable standards for resolving [them].” Ibid.

Both citations are misleading.  The Vieth opinion, of four Justices only, is not precedent on the issue of justiciability.  (Later in his opinion, Roberts acknowledged that Davis v. Bandemer, 478 U. S. 109 (1986), held such claims justiciable). 

Baker v. Carr  (which established the one-person, one-vote rule) found a “political question” to be justiciable. A Tennessee law apportioned the members of the General Assembly among the state's counties. Plaintiffs claimed that, because of a failure for many years to reapportion, despite changes in population, they were “denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes." 369 U.S. 186 at 187-8.  The Court held “that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment.”  369 U.S. at 237. 

If the Chief Justice had followed Baker v. Carr — rather than relying on a rule Baker found inapplicable — he would have found the present claim to be within the Court’s powers.

The next argument against action, which distinguishes Baker rather than misquoting it, is that “political gerrymandering” is per-missible:
Partisan  gerrymandering claims have proved far  more difficult to adjudicate. The basic reason is that, while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, ‘a jurisdiction may engage in constitutional political gerryman-dering’. Hunt v. Cromartie, 526 U. S. 541, 551  (1999).

Hunt did recite the supposed rule, but it added a footnote stating, “This Court has recognized, however, that political gerrymandering claims are justiciable under the Equal Protection Clause.”

Leaving justiciability aside, what is Roberts’ position on partisan gerrymandering?  What does he mean by “constitutional political gerrymandering?”  His comment last quoted continues:
See also Gaffney v. Cummings, 412 U. S. 735, 753 (1973) (recognizing that ‘[p]olitics and political considerations are inseparable from districting and apportionment’). To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.

Does “taking partisan interests into account” mean that redistricting to gain partisan advantage is permissible?  If so, why?  The lack of clarity in Roberts’ position, and in the comments in some of the cases, may stem in part from a tendency to confuse “political” and “partisan,” as shown by the preceding quote.  Conflating them suggests that, because political entities draw district lines, they have a license to put a partisan thumb on the scale.  “It  would be idle .  .  .  to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it,” Roberts declared, quoting Gaffney.

Even if partisan intent, identified as such, is a predominant factor, there is no constitutional issue:         
       [D]etermining that lines were drawn on the basis of partisanship does not indicate that the  districting was improper.  A  permissible  intent — securing partisan advantage — does not become constitutionally impermissible, like racial discrimination, when that permissible intent “predominates.”

Something (undefined) more than a predominant partisan motive is required.  Again, why?  What is the basis for putting partisanship in a protected category?

Even assuming that some degree of partisanship is inevitable and permissible, where do we go from there?   “The ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering.  It is ‘determining when political gerrymandering has gone too far.’ Vieth, 541 U. S. at 296 (plurality opinion).” (Note again the confusing use of “political”and “partisan”).  Or, as Roberts puts it without quotation, “At what point does permissible partisanship become unconstitutional?”

We don’t know.  The Chief Justice noted that the Maryland and North Carolina cases “involve blatant examples of partisanship driving districting decisions.” Is blatancy of partisan gerrymandering enough to attract the Court’s attention?  No. It wouldn’t know how to react; it wouldn’t have any rule to follow; there is no test for excessiveness.

His argument on that issue at first was that no test proposed by a court could be legitimate, “because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.”  That can’t be taken seriously.  Courts routinely make judgments for which there is no explicit measure in the Constitution.  Perhaps realizing that, Roberts turned to a critique of the methods proposed in this case. “Appellees and the dissent propose a number of ‘tests’ for evaluating partisan gerrymandering claims,  but none meets the need for a limited and precise standard that is judicially discernible and manageable.  And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.”  
The first sentence raises a question of fact, or judgment, to which the dissent answers: there are tests which will determine, in the words the Chief Justice adopted from Vieth, “when political gerrymandering has gone too far.”  The second is misleading; the effect of applying the tests proposed is not to reallocate power and influence, but to prevent such power from creating future partisan advantage. 

In another evasive move, — citing a non-majority opinion — the Chief Justice asserted that the plaintiffs were, in effect, applying an improper reference point:
Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too  difficult for one party to translate statewide support into seats in the legislature. But  such  a  claim  is based on a ‘norm that does not exist’ in our electoral system — “statewide elections for  representatives along party lines.” [Davis  v.] Bandemer,  478 U. S., at 159 (opinion of O’Connor, J.). Partisan gerrymandering claims invariably sound in a desire for proportional representation.

Here is the dissent’s reaction to Roberts’ declaration that there are no manageable tests and its response to the proportionality issue:
[I]n throwing up its hands, the majority misses something  under  its  nose:  What  it  says  can’t  be  done  has  been  done.  Over  the  past  several  years, federal courts across the country . . . have  largely converged on a standard for adjudicating partisan  gerrymandering claims . . . . The  standard  does not use any judge-made conception of electoral fairness — either proportional representation  or  any  other; instead, it takes as its baseline a State’s own criteria of fairness, apart from partisan gain.  And by requiring plaintiffs to make difficult showings relating to both purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders.

The details are discussed below.

The Chief Justice offered three more reasons for avoiding a decision. First, intervening in gerrymandering issues “would be unlimited in scope and duration—it  would recur over and over again around the country with each new round of districting, for state as well as federal representatives.”  This is the time-worn flood-of-litigation excuse, which becomes no more convincing with repetition.

Another excuse for inaction is that there are ways other than Supreme Court decisions to combat gerrymandering.  The  states (which apparently can find standards invisible to the Court) are actively addressing the issue. “One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions.” This exercise in passing the buck is surprising, given that Roberts argued, in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), that redistricting commissions are unconstitutional.  Apparently he had forgotten that by June of this year.  

Finally: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the  unelected and politically unaccountable branch of the Federal  Government assuming such an extraordinary and unprecedented role.”   Such modesty seems to appear only in cases the Court wishes to avoid.  However, Roberts wanted us to be aware that, although the Court will not act, it recognizes the problem. “Our conclusion does not condone  excessive partisan gerrymandering,” he said, making an evaluative comment for which he claims there is no basis.    

Neither opinion in Rucho is a model of legal draftsmanship.  The majority opinion is less an analysis than a list of reasons not to perform one.   The dissent could have presented its argument more clearly in fewer words and, at one point, it doesn’t entirely make sense.  This is the passage in question, referring to the District Courts in this case:
Both . . . courts (like others around the country) used basically the same three-part  test to decide whether the plaintiffs  had made out a vote dilution claim. As many legal standards do, that test has three parts: (1) intent; (2) effects; and (3) causation. First, the plaintiffs challenging a districting plan must prove that state officials’ “predominant purpose” in drawing a district’s lines was to “entrench [their party] in power” by  diluting the votes of citizens favoring its rival . . . .  Second, the plaintiffs must establish that the lines drawn in fact have the intended effect by “substantially” diluting their votes. . . .  And third, if the plaintiffs make those showings, the State must come up with a legitimate, non-partisan justification to save its map. 

The second set of three doesn’t match the first.  The second is the operative set; its second element in effect combines the second and third elements of the first set.

The first element was not even in controversy: those involved in the schemes made no secret of their partisan aims.  Even the majority acknowledged that the “districting plans at issue here are highly partisan, by any  measure.” 

As to the second element (second set), the dissent described a test:
The  approach—which also has recently been used in Michigan and Ohio litigation—begins by using  advanced computing technology to randomly generate a large collection of districting plans that  incorporate the State’s physical and political geography and meet its declared districting criteria,  except for partisan gain.  For each of those maps, the method then uses actual precinct-level votes from past elections to determine a partisan outcome (i.e., the number of Democratic and Republican  seats that map produces).  

Suppose we now have 1,000 maps, each with a partisan outcome attached to it.   We can line up those maps on a continuum—the most favorable to Republicans on one end, the most favorable to Democrats on the other.  We can then find the median outcome—that is, the  outcome smack dab in the center—in a world with no partisan manipulation.    And we can see where the State’s actual plan falls on the spectrum—at or near the median or way out on one of the tails? The  further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution.

The dissent then applied that to the present case: “Using that approach, the North Carolina plaintiffs offered a boatload of alternative districting plans — all showing that the State’s map was an out-out-out-outlier.”

That the second element was satisfied in Maryland seems clear on its face.
The 2010 census required only a minimal change in the Sixth  District’s  population—the subtraction of about 10,000 residents from more than 700,000.  But instead of making a correspondingly minimal adjustment, Democratic officials re-configured the entire district. They moved 360,000  residents out and another 350,000 in, while splitting some counties for the first time in almost  two  centuries.

The result was that the district changed from 47% registered Republicans, 36% Democrats to 44% registered Democrats and 33% Republicans. “That reversal of the district’s partisan composition translated into four consecutive Democratic victories . . . .” 

The dissent did not indicate how the Maryland case fits into the methodology which it states District Courts have followed recently.  It probably doesn’t so fit, and the decision that the gerrymander of the single Maryland district is unconstitutional is based on an evaluation which has no stated scientific basis.  The redistricting seems no less obviously unlawful for that, but the lack of a statistical measure lends some weight to Roberts’ claim that there is no objective standard.  

In addition, it isn’t clear that the North Carolina test fit that methodology either.  Plaintiffs addressed the second element by means of computer-modeling techniques which “randomly generate a large collection of districting plans that incorporate the State’s physical and political geography  and  meet  its  declared  districting criteria, except for partisan gain.”  For each of those maps, votes from past elections are applied to measure potential partisan outcomes, and the plan at issue is placed on the continuum.  This is the dissent’s summary of the result:       
      One expert produced 3,000 maps, using the criteria that the redistricting committee had used, other than partisan advantage.  Each of the 3,000 maps “would have produced at least one more Democratic House Member than the State’s actual map, and 77% would have elected three or four more.”  A second expert used “more generic districting criteria (e.g., compactness and contiguity of districts). Over 99% of that expert’s 24,518 simulations would have led to the election of at least one more Democrat, and over 70% would have led to two or three more” The North Carolina map was an outlier; plaintiffs’ votes were substantially diluted by reference to neutral models.

That description of the process omits any reference to a median outcome.  Reference to a median may not be necessary to a valid test, but the dissent’s inconsistency doesn’t aid its argument or clarify its proposed test.

The third element presumably was satisfied by default in each case; there is no indication that the states could justify their maps. 

The dissent labeled the result in both states as “extreme partisan gerrymandering,” and the majority called them “blatant,” but that is not enough to prod the majority into action.   Here is another statement by Roberts of its claim that the dissent hadn’t shown where to draw the line:
Even if we were to  accept  the  dissent’s  proposed base-line,  it  would  return  us  to  “the  original unanswerable question (How much political motivation and effect is too much?).”  Vieth,  541  U.  S.,  at  296–297  (plurality  opinion) . . . .  The dissent’s answer says it all: “This much is too much.” . . .  That is not even trying to articulate a standard or rule.

Ignoring for the moment the inconsistency of that statement with the majority’s position, we could conclude that it has merit.   As to North Carolina, the dissent offered a method and demonstrated that the present case is unacceptably extreme, but hasn’t shown where the line is to be drawn, other than under a statistical “outlier.”  As to Maryland, it has shown to any unbiased observer that the manipulated district is unacceptable, but the test seems to be subjective.

However, the majority had no basis for criticism of the dissent’s conclusions, because the majority contend that there is and can be no way to measure excessiveness, no way to measure how much is too much.  They concede that by describing the question as unanswerable.  The only logical response to the dissenters, given the majority’s position, is that they have wasted their time seeking an answer to a phantom question.

If the majority believed that partisan gerrymandering is a serious issue, they would have constructively critiqued the dissent’s position, and a solution might have appeared.  Instead, the majority are so anxious to avoid the issue that no demonstration of partisan excess will move them.
The Court’s indifference toward partisan gerrymandering is analogous to a policeman’s watching a robbery and doing nothing because first, he doesn’t think that it is in his district and besides, he thinks that the law prohibits only serious robberies, and he can’t tell how serious this one is.  Also, robberies have been part of American culture from the beginning.  Even if robberies are a bad thing, there will be many more, and he can’t be expected to deal with them over and over.  On the other hand, he’s glad that other towns are defining serious robberies, even though he doesn’t approve of the way some of them are doing it.


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Posts © 2011-2012 by Gerald G. Day