Tuesday, November 24, 2020

November 24, 2020

Have we touched bottom?

It would be pleasant, and soul-refreshing, to be able to think about something other than politics, other than Trump. Unfortunately, that’s about like not thinking of wind in the midst of a hurricane. Even after Trump is ushered out of the White House, he’ll hover over us, in person or through the destructive movement of which he became the symbol.

Twice before I have speculated as to how low Trumpism could go, reacting to the cruelty of the anti-immigration policy of separating children from parents, then the irresponsible arguments of his lawyers and the craven behavior of his Senate enablers during the impeachment trial. Not surprisingly, Trump and his minions have set a third benchmark, this time undermining democratic government by refusing to accept the result of the election and disrupting the transition.

Donald Trump is such a pathetic figure that one could feel sorry for him if he didn’t cause so much suffering. He cannot face having lost the election, in part because the Presidency protects him from some of his numerous legal challenges, but partly because he is afraid of being labeled a loser. He may, at some depth, know that he is one. His reputation for business success was partly an illusion, given multiple bankruptcies, and to the extent it was real, it depended on help from his father. As the saying goes, he wasn’t really a tycoon; he just played one on television. His real success was — as he would put it — as a star, in that sham, The Apprentice. Similarly, he wasn’t really a president; he just played that part, bragging about the ratings for his news conferences. He was in his element at rallies, where he was a star again. All of this reminds me of a book title, President Reagan: the Role of a Lifetime.¹ However, Ronald Reagan, however one ranks him, was in an entirely different class from the incumbent player.

Trump won the Presidency four years ago only because of our anti-democratic electoral system. He lost the popular vote by 2.8 million, an embarrassment so great that he was forced to dream up theories of fraud to explain it. Now, having lost the electoral vote, and the popular by a larger margin, he again claims fraud and searches for ways to parlay that baseless claim into victory.

The most extreme gambit was described November 19 on Fox, by one of his attorneys, Sidney Powell: the election “in all the swing states should be overturned, and the legislatures should make sure that the electors are selected for Trump.”² His recent meeting with Michigan lawmakers may have been an attempt to push that plan. If so, it failed. It probably will fail in other states as well, but the mere fact that it has been considered marks another milestone on the road toward the destruction of democracy.

Consistency is not Ms. Powell’s strong suit (nor, to be fair to her, is it of the man she attempts to serve and protect). Also on November 19, at a press conference with Rudy Giuliani, she asserted that “President Trump won by a landslide.”³ However, in that same meeting she claimed this: “What we are really dealing with here and uncovering more by the day is the massive influence of communist money through Venezuela, Cuba and likely China and the interference with our elections here in the United States.” If Trump won decisively, why demand that legislatures overturn the election and why trot out a nutty theory to explain how Biden won unfairly? Perhaps she means that Trump would have won —of course by a landslide — if not for the massive conspiracy, a conspiracy so obviously imaginary that she must fall back on communists as the bad guys.

Giuliani added to the fun by seeming to assert that votes somehow were counted in Germany and Spain and by claiming that a truckload of (no doubt fraudulent) ballots mysteriously appeared at a Detroit election center at 4:30 a.m.

Ms. Powell’s comments, at the press conference and later, apparently crossed a line heretofore invisible in a campaign built on fantasy and falsehood. Giuliani and Jenna Ellis, Trump campaign “senior legal adviser,” disowned Ms. Powell on November 22. She is, according to them, “not a member of the Trump Legal Team,⁴ even though she had been so described by Trump and was introduced as such by Giuliani, in Ms. Ellis’ presence, at the press conference.⁵ She is also “not a lawyer for the President in his personal capacity;” she is merely “practicing law on her own,” but somehow was allowed to attend the press conference and speak at length. True, Ms. Powell later attacked the Republican Governor of Georgia, but Trump also criticized his handling of the election. Ms. Ellis is still on the team despite having called Trump an idiot and denounced his supporters for not caring that he was an "unethical, corrupt, lying, criminal, dirtbag."⁶ That was in 2016; perhaps there is a statute of limitations.

Trump’s refusal to admit defeat may soothe his bruised ego, but it led to his administration’s failure to cooperate in the transition. That underscored the irresponsibility which has characterized his term of office by, among other effects, making it more difficult to combat the pandemic.

To the extent that he acknowledges his loss, his reaction is to lash out, firing officials who annoy him, and ordering or considering dangerous actions. He sacked Chris Krebs, director of the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security, who had declared the election free of fraud, and Secretary of Defense Mark Esper. Despite the turmoil that caused in the Defense Department, Trump considered an attack on Iran and ordered troop reductions in Iraq and Afghanistan.

Bowing to reality, Emily Murphy, head of the General Services Administration, now has announced that the transition may begin. Trump, still straddling his world and the real one, tweeted: “Our case STRONGLY continues, we will keep up the good fight, and I believe we will prevail! Nevertheless, in the best interest of our Country, I am recommending that Emily and her team do what needs to be done with regard to initial protocols, and have told my team to do the same.” Emily says it was her idea, not his.⁷

All of this thrashing about may be a challenge to the loyalty and gullibility of the base, but they probably are up to the task. Even the Powell theories may survive her downfall.

Whatever tendency toward tribalism existed before 2016, however far the Republican Party had fallen by then, the dire situation we now find ourselves in would not have developed, nor would disunion have reached its present dimensions, had it not been for Trump. Perhaps he can console himself with that achievement as his legacy.

____________________________

1. Lou Cannon (1991)

2. https://www.huffingtonpost.ca/entry/trump-election-overturn-biden_n_5fb73d38c5b618e45b46baca

3. https://www.washingtonpost.com/politics/2020/11/19/fact-checking-craziest-news-conference-trump- presidency/?utm_campaign=wp_fact_checker&utm_medium=email&utm_source=newsletter&wpisrc=nl_fact&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F2ce3707%2F5fb804409d2 fda0efb6e8504% 2F5b65de00ade4e 2779564ed94%2F31%2F45%2F285070d1b362510abc7aa221a64d66bc

4 https://www.washingtonpost.com/politics/2020/11/22/giuliani-releases-statement-distancing-trump- campaign-lawyer-sidney-powell/?utm_campaign=wp_politics_am&utm_medium=email&utm_source= newsletter&wpisrc=nl_politics

5. https://www.cbsnews.com/news/sidney-powell-trump-legal-team-disavows-association/

6. https://www.cnn.com/2020/11/18/politics/kfile-jenna-ellis-2016-trump-comments/index.html

7. https://www.nytimes.com/live/2020/11/23/us/joe-biden-trump#gsa-biden-emily-murphy

Monday, November 2, 2020

November 1, 2020

A mixed but troubling picture

One way to evaluate the Supreme Court’s performance is to rank its decisions as liberal or conservative. The debate over the replacement of Justice Ginsburg proceeded along those lines, and a scholarly appraisal of recent decisions, written before the issue of a replacement arose, largely analyzed them in those terms. I’ll look at that before attempting a different approach.

In the August 20 issue of The New York Review of Books,¹ David Cole found that “the Court’s term was much less conservative than anyone had expected . . , declaring that federal civil rights law bars LGBTQ discrimination, striking down a Louisiana restriction on abortion, and invalidating President Trump’s effort to rescind deportation protection and work authorization from ‘Dreamers’. . .” Also, the Court held that “about half of Oklahoma belonged to the Muscogee (Creek) Nation for purposes of authority to prosecute Native American defendants.” (There had been other, earlier, liberal results, including the granting of constitutional protection to same-sex marriage²).

The Court went both ways on efforts to see Trump’s financial records, holding that the Manhattan District Attorney had authority to pursue the president’s personal and business financial records, but that Congressional subpoenas for Trump records did not take into account the separation of powers. As noted below, I don’t think that the Court always applies that rule to itself.

On the conservative side the Court “restricted immigrants’ rights to judicial review of deportation orders, and required states to fund scholarships for religious schools if they funded secular schools. It excused Catholic schools from abiding by civil rights laws in hiring and firing teachers who provide religious instruction, and upheld President Trump’s order permitting employers to deny their employees contraceptive coverage.”

On October 13 the Court added another decision to the conservative list, in effect terminating the census count.³ That, as The New York Times reported,⁴ “would only worsen existing undercounts of the people census workers have had the most trouble reaching, including those in racial minority groups, poor people and young people,” i.e., likely Democratic voters.

Professor Cole added: “in a series of unexplained or barely explained decisions reviewing requests for emergency stays of lower court orders, the Court four times ruled against efforts to protect voting rights, and twice cleared the way for federal executions by summarily overruling lower courts that had identified serious legal questions that still needed to be resolved.” (More recent rulings on voting have gone both ways.) Those issues and contraceptive coverage also appear in the cases discussed below).

My reaction to the Court’s work, over a period of years, is based primarily on its record as to normal and proper principles of adjudication. The list that follows isn’t neutral or representative of all of the Court’s work; I have selected decisions in which the Court failed to adhere to those principles. However, there are enough of them to reveal, I think, a Court which is not functioning well. (The results in these cases also were wrong on the merits, and all tilted to the right).

What follows is a brief summary; the decisions referred to below were discussed in greater detail in previous posts, which are noted. My comments refer to decisions of the Roberts Court or, in the case of item 1, its intellectual predecessor. I’ve identified the author of the lead opinion in each case.

1. Engaging in partisan politics.

In Bush v. Gore,⁵ the Court decided the 2000 election by halting recounts in Florida, the electoral votes of which would determine the election, in the process overruling the State Supreme Court, which had directed the recount. By doing so, it gave the presidency to George W. Bush, who had lost the national popular vote by 543,895 but, after the recount was halted, won Florida by 537, and the electoral vote 271 to 266. Although the per Curium opinion signaled its departure from precedent by noting that ”[o]ur consideration is limited to the present circumstances,” and although the decision has not, until now, been relied upon, it may be resuscitated. In a concurring opinion last week, in a case which produced another negative result regarding the counting of ballots⁶, Justice Kavanaugh cited Bush v. Gore in a way which may portend similar Supreme Court intervention in this year’s election. Add that three members of the Court — Roberts, Kavanaugh and Barrett —worked for the Bush forces during the 2000 controversy⁷, and that decision looms larger.

2. Going beyond the issues presented.

One basic principle of adjudication is that a decision should not be based on an issue which has not been briefed and argued by the parties; otherwise, they have no opportunity to address matters the Court may find determinative. The Court violated that rule in Citizens United v. Federal Election Commission.⁸ If that is done innocently, it is a failure by the court to do justice, as an unfair and possibly erroneous result may be reached. If it is done intentionally, it reveals that the court has an agenda which it needs a case to serve. Citizens United almost certainly falls into the latter category.

Some opinions are transparent attempts to make a case which does not exist legitimately. Citizens United is an example; it substituted a parade of hypothetical evils for evidence.

3. Misinterpreting the Constitution.

The Roberts Court has been inventive in its reading of the Constitution. Possibly the most egregious example is Heller v. District of Columbia.⁹ In that decision, the Second Amendment was rewritten: its limiting reference to militia was expunged, and unmentioned uses for firearms were inserted and thereby given Constitutional protection.

Shelby County v. Holder ¹⁰ struck down part of the Voting Rights Act. The Court relied on the Tenth Amendment (after misstating it) to find that Congress did not have power to treat states differently regarding voting procedures, ignoring the grant of authority to Congress under the Fifteenth Amendment, which deals, as the Tenth does not, with voting rights.

National Federation of Independent Business v. Sebelius,¹¹ the Obamacare decision, is odd in more than one respect, but its significance here is that it misinterprets, and limits, the Commerce Clause.

5. Misuse of precedent.

Several problems exist; the first is that precedent has been ignored. Heller, to add to its sins, is an example; it brushed aside United States v. Miller, which had relied on the inconvenient reference to militias.

The second problem is that, instead of applying the holdings in prior cases, which is the legitimate form of precedent, the Court has relied on quotes from majority opinions which are not necessary to the holding, i.e., obiter dicta or, worse, from dissenting opinions.¹² As Justice Stevens put it in Citizens United, “the majority opinion is essentially an amalgamation of resuscitated dissents."

Also, the holdings of prior opinions have been misstated or misused. In McCutcheon v. Federal Election Commission¹³, involving campaign contributions, the Court cited Sable Communications of California v. FCC,¹⁴ which didn’t involve campaign spending or contributions, or money in any way. It dealt with regulating content — actual speech — and there is nothing in McCutcheon about regulating content.

In Sebelius, the Court quoted a rule recited in Maryland v. Wirtz as authority; however, Wirtz didn’t follow that rule. As a bonus, the opinion misconstrued a quote from The Federalist Papers.

Shelby cited, in support of a theory of state sovereignty, United States v. Louisiana (1960), in which the state asserted sovereignty as a defense to a claim by the federal government (and lost), and Texas v. White (1869), which referred to state sovereignty under the Articles of Confederation, hardly relevant. The Shelby opinion also claimed: "Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority:’ Coyle v. Smith" even though, as it acknowledged, Coyle concerned a different issue, the admission of new States, and South Carolina v. Katzenbach (1966) limited the principle of equality to that context.

McDonald v. Chicago¹⁵ applied the Second Amendment to the states, based on Heller, the holding of which is as follows: “the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Instead, McDonald claimed this:“Two years ago, in District of Columbia v. Heller . . . , we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense. . . ." Later, it was somewhat closer to the mark, stating that Heller established “a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home," but that still spreads gun rights far and wide, limited only by an undefined concept of “lawful purpose.” The Heller opinion encouraged such mis-construction by stating that various largely irrelevant sources “guarantee the individual right to possess and carry weapons in case of confrontation.” The loose language of both opinions is a gift to the gun lobby.

6. Substituting the Court’s opinion for Congress’ findings.

In Shelby, the Court ignored Congress’ findings of fact, thereby invalidating part of the Voting Rights Act. Its excuse was that those findings were obsolete, although only seven years old. In effect, the Court held that it had the authority to approve or disapprove of any finding of fact by Congress, a departure from basic practice, and an incursion into the separation of powers.

The Court’s arrogance was revealed also in McCutcheon: “[W]e do not doubt the compelling nature of the ‘collective’ interest in preventing corruption in the electoral process. But we permit [!] Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech . . . ." Allegedly protecting First Amendment rights, the Court will decide whether any given law, enacted by the people’s representatives, is inconsistent with the Court’s political outlook which, in McCutcheon, had less regard for the “collective” than for those who can spend money on elections.

7. Misinterpreting statutes.

In general, the Court doesn’t think much of Congress’ ability to draft statutes, but if the Court wanted to ignore a statute, the one involved in Burwell v. Hobby Lobby¹⁶ would have been the perfect candidate, as it made little sense. Instead, the Court rewrote it to suit its aim, which was to allow a corporation to avoid providing contraceptive coverage — as required by regulations under the Affordable Care Act — as part of its health care plan for employees. Along the way, it confused corporations and owners, granted corporations religious rights, and found that the possible use of a contraceptive by a third party (an employee) violated the owners’ and corporation’s religious beliefs, or maybe it was their “exercise of religion.”

8. Avoiding the issue.

In Rucho v. Common Cause,¹⁷ the Court chose not to interfere with partisan gerrymandering. That probably should not have been a surprise; the Court already had declared, in Shelby, its lack of interest in protecting the right to vote. It excused its inaction in part by confusing the terms “political” and “partisan,” allowing it to protect partisan motivation by pretending it was merely part of a valid political process. It cited Baker v. Carr¹⁸ for the proposition that a “political question” is non-justiciable; however, Baker, which established the one-person, one-vote principle, did not apply that rule.

9. Misplaced deference to views of the founding era.

Bucklew v. Precythe¹⁹ denied a challenge to a state’s method of execution; the prisoner’s claim was that, because of his medical condition, that method would cause great suffering. The Court held against him, applying the standards of the Eighteenth Century regarding cruelty and ignoring the principle that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," a principle reaffirmed in 2002, in another Eighth Amendment death penalty case.²⁰ The Bucklew opinion is originalism run riot.

As a result of these dubious decisions, we have a troubling attitude toward elections, and bad law on money in politics, gun control, voting rights and state sovereignty, gerrymandering, the Commerce Clause, religious rights of corporations and the death penalty. It may get worse.

¹ https://www.nybooks.com/articles/2020/08/20/roberts-court-declarations-independence/

² Obergefell v. Hodges, 576 U.S. 644 (2015)

³ Ross v. National Urban League, 592 U. S. ____ (2020)

⁴ https://www.nytimes.com/article/census-supreme-court-ruling.html

⁵ 531 U.S. 98 (2000). My comments are scattered; see 8/10/13. The opinion was per Curium; of the majority, only Justice Thomas still is on the Court.

⁶ Democratic National Committee v Wisconsin State Legislature

⁷ https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts- supreme-court/index.html

⁸ Kennedy; 558 U.S. 310 (2010); discussed on 2/6/10.

⁹ Scalia; 554 U.S. 570 (2008); 7/6/08

¹⁰ Roberts; 570 U.S. 529 (2013); 7/1/13, 2/24/16, 10/8/19

¹¹ Roberts; 567 U.S. 519 (2012); 7/6/12, 11/15/15

¹² I discussed this on 5/13/14 in connection with McCutcheon v. Federal Election Commission

¹³ Roberts; 572 U.S. 185 (2014); 5/13/14

¹⁴ 492 U. S. 115 (1989)

¹⁵ Alito; 561 U.S. 742 (2010); 7/11/16

¹⁶ Alito; 573 U.S. 682 (2014); 7/15/14

¹⁷ Roberts, 588 U.S. ___ (2019); 10/8/19

¹⁸ 369 U. S. 186, 217 (1962)

¹⁹ Gorsuch; 583 US __ (2019); 4/13/19

²⁰ Atkins v. Virginia, 536 US 304 (2002)

Thursday, October 8, 2020

October 7, 2020

Herd immunity to clear thinking

President Trump made a mangled reference to herd immunity as a strategy for defeating the pandemic. Others, including Senator Rand Paul, also have proposed that theory. It may be for some, such as Senator Paul, a libertarian position but, with or without that philosophical gloss, its popularity has less to do with its viability as a method of control than with its usefulness as an excuse for avoiding sensible measures, such as masks, distancing and shutdowns. A Republican State Senator was semi-candid about what that theory contemplates, more people infected: “I’m not as concerned as much as the number of cases, in fact quite honestly, I want to see more people because we start reaching an immunity as more people have it and get through it.”¹ Will they all “get through it?” Let’s not think about that.

An aspect of the herd mentality is an inability to grasp simple concepts. An example is a tweet by DeAnna Lorraine, a Republican who ran unsuccessfully for Congress: “Does anyone else find it odd that no prominent Democrats have had the virus but the list of Republicans goes on and on?” Could it be that Democrats are following medical advice? That, of course, is not an acceptable answer, as it would violate the tribal doctrine that masks and other precautions are just more damned liberal bullying. There must be a plot.

There are those who refuse to wear masks because they are symbols of political correctness or, as an anti-mask lawsuit put it, a “virtue signal.” Some, possibly sincerely but inanely, oppose wearing masks because it restricts their freedom, thereby defining that concept as the ability to do anything one wants regardless of consequences. That is a definition of freedom which would make civilized society impossible which, I sometimes think, is the true agenda of some on the right.

Some make no effort to think, demonstrating what might be described as herd stupidity. Perhaps inspired by Trump’s what-me-worry rallies, many have gathered and partied in a manner incredibly dangerous to self and others.

Senator Ron Johnson (R-Wis.) adopted a blithely dismissive position toward the pandemic: it’s no big deal and we can’t do anything about it anyway. There is “a level of unjustifiable hysteria” about the virus, he said; after all, it has only, as of October 7, infected a little over 7,567,800 Americans, (42,553 the day before), and killed 211,453 (721 the day before).² In any case, it’s hopeless: “Why do we think we actually can stop the progression of a contagious disease?”³

Trump continues to demonstrate his aversion to science, in this case medical. After being infected and hospitalized, he returned to the White House prematurely, still probably carrying contagion, removed his mask and mingled with those of his staff not already infected and quarantined. The White House, rather than being the source of leadership, has become a microcosm of the national disaster.

All this anti-intellectualism reminds me of an exchange in Inherit the Wind. Matthew Harrison Brady, when faced with inconsistencies in a literal interpretation of the Bible, said: "I do not think about things I do not think about." Henry Drummond responded: "Do you ever think about things that you do think about?"

1 https://www.bamapolitics.com/54520/al-sen-del-marsh-says-he-wants-more-covid-19-cases-in-order-to-get- immunity-from-virus/

2. https://www.bamapolitics.com/54520/al-sen-del-marsh-says-he-wants-more-covid-19-cases-in-order-to-get- immunity-from-virus/

3. https://www.washingtonpost.com/politics/trump-coronavrius-republicans-election/2020/10/05/fdc570ea-071a-11eb-a166-dc429b380d10_story.html?utm_campaign=wp_post_most&utm_ medium=email&utm_source=newsletter&wpisrc=nl_most&carta-url=https%3A%2F%2Fs2. washingtonpost.com%2Fcar-ln-tr%2F2c0000d%2F5f7c94f19d2fda0efb40c816%2F5b65de00ade 4e2779564ed94%2F24%2F62%2F285070d1b362510abc7aa221a64d66bcy-from-virus/

Friday, October 2, 2020

September 30, 2020

Rage

Bob Woodward’s latest book about Donald Trump as President gives some examples of his angry outbursts, one occasion described as “ranting and raving” by one on the scene. The book’s title, Rage, perfectly describes Trump’s out-of-control behavior at the first debate. If there had been any doubt that the prospect of losing the election terrifies him, it evaporated during that performance.

Commentary on the debate has been uniformly negative about Trump, but oddly varied regarding Biden. My first impression was that he should have been less combative, interrupted less often and displayed more dignity but, on reflection, realized that was to some degree unrealistic. Trump had asserted that Biden was, in effect, senile (an exercise in projection?), calling him “Sleepy Joe.” Biden needed to crush that claim, and did. Some of the commentators missed that point; at the other extreme, one somehow found that Biden had been too passive.

There had been suggestions, by Biden among others, that the debate be fact-checked in real time. Given Trump’s continued lying, that would be a good idea. Setting the record straight the day after, or even the hour after, has less impact. For most voters, immediate impressions are all, and allowing Trump to get away with lies lends him undeserved aid. Biden and the moderator could do only so much in that line, given the restraints of time and format and Trump’s continuous interruptions.

There is a tendency to treat the debates as contests, declaring winners and losers rather than analyzing arguments or testing knowledge. This reflects and reenforces the public reaction which relies on general impressions. Applying that superficial test, commentators — and, allegedly, voters — gave Biden only a slight edge; however, that, apparently was considered enough of a win for him, as he leads in the polls. It doesn’t seem likely that Trump persuaded any undecided voters to move his way, which may be the point that the horse-race analysis intends to make.

The most troublesome aspect of Trump’s bluster, on and off the debate stage, is the threat, implied by his panic, but also expressed, that there will be interference in the election and refusal to accept an adverse result. Telling the Proud Boys to “stand by” was an unsubtle hint.

We have reached one of the low points in this nation’s history, and it’s by no means clear that the path leads upward from here.

Wednesday, September 23, 2020

September 22, 2020

More institutions

I was reminded that there are institutions in need of repair other than the Supreme Court and the ones I discussed on September 11. Respect for Justice Ginsburg should postpone discussion of the Court.

1. The news media

In a way, it’s difficult to evaluate the news media, because the nature and even definition of those entities is in flux. Fox no longer can be grouped with legitimate news organizations, having become a right-wing propaganda outlet. Some, such as Facebook, would not qualify by any normal definition, but are the prime source of information for far too many. Various web sites scatter tales of conspiracies so ridiculous that the proper response would be laughter, but many swallow the bile. In a sense, the sad state of information dissemination brings us back to the sad state of the people, of their political and cultural ignorance and bias.

However, let’s look at the mainstream media, which still have standards and a sense of responsibility. The fact that Trump refers to them as enemies of the people demonstrates that they are paying attention to his failings and, to some degree, challenging them. I am most familiar with The New York Times, The Washington Post, The Seattle Times and NBC-TV, so my comments will refer to them.

As I’ve noted before, all of them, notably NBC, have been reluctant to mention climate change, even when reporting extreme weather. The western forest fires have forced some departure from that policy, but more direct, critical attention is required.

Another area in which there has been some change is the usual tendency of news reports to create false equivalence by presenting nonsense as sensible comment, in an attempt to achieve balance (or avoid attacks). The Trump administration is so vile, corrupt and incompetent that news articles, notably in The New York Times, often have been telling it like it is.

However, an example, although a marginal one, of the more usual approach appeared in The Seattle Times on Sunday. A long front-page article profiled the Republican candidate for Governor, Loren Culp. He is police chief of Republic, a town of about 1,300 people. (Due to budget cuts, Culp is now the entire police force).

The article notes many negative aspects of Culp’s views, actions or associations. However, it in effect brings him into the mainstream and confers respectability by describing him as “a proud conservative.” He is, more accurately, a right-wing extremist. (The article notes that “Culp has maintained associations with some controversial far-right organizations.”)

Culp refused to enforce the gun-control mandate of Initiative 1639. He also opposes a ban on bump stocks: “I don’t see where the government gets the power to ban any attachment to my car, or an attachment to my rifle.” He “says government should be small and mostly butt out of people’s lives,” leading him to oppose “mandatory mask orders and shutdowns of businesses meant to slow the spread of COVID-19.” His campaign has been “built on rallies across the state flouting COVID-19 restrictions.”

Culp’s campaign paid $7,000 in June, for reasons not clear, to Peter Diaz, founder of a group called American Wolf, which “has sent armed civilians to act as self-appointed, pro-law-enforcement ‘peacekeepers’ at protests against racism and policing.” Elsewhere American Wolf was described as an “armed far right group” which “has aggressively inserted itself in a quasi-policing capacity into protests addressing the murder of George Floyd.”¹

Use of the “proud conservative” label might be justified on the ground that conservatism has fallen so far that Culp legitimately can be so described. (An indication that this may be so is an ad by Sen. Kelly Loeffler, R-Ga., which claims she’s “more conservative than Attila the Hun.” She has a “100% Trump voting record.”)² However, I think that any genuine conservative would be offended by the suggestion.

The Culp article leads us to another institution in serious need of reform.

2. Law enforcement agencies

There is a group known as the Constitutional Sheriffs and Peace Officers Association (CSPOA) which, among other odd views, has an inflated notion of the authority of sheriffs. It asserts: “Arrest of citizens or seizure of persons or property without first notifying and obtaining the express consent of the local sheriff” “will not be allowed or tolerated.” It opposes gun control; also among the acts which will not be allowed or tolerated is “Registration of personal firearms under any circumstances.”³ It opposes federal ownership of land, demanding that it be transferred to the states.

The opposition to gun control, while dangerously illogical for a law enforcement agency, is not unusual. Thirteen Washington sheriffs announced that they would not enforce the control provisions of Initiative 1639. As noted, Loren Culp takes that view, for which, the Times reported, he was named “Police Chief of the Decade” last year by the CSPOA.

The recent killings and other assaults on blacks have exposed racism and other serious flaws in police departments, which must be addressed and resolved. Greater federal oversight probably is necessary, although any meaningful effort along that line must await another administration. The foolish defunding reaction won’t solve the problem.

3. Our health care system

One of Trump’s lies, in this case a continuing fraud, is that he will replace the Affordable Care Act with something “better.” (The mere fact that it is called Obamacare would be enough to persuade Trump to oppose it). After four years, nothing has appeared.

Meanwhile — in the midst of a heath crisis — he supports an effort to persuade the Supreme Court to find the ACA unconstitutional. This is another example of the tendency by Trump and company to do or say things which, in a rational world, would be self-destructive. As a Republican strategist put it, it’s “pretty dumb to be talking about how we need to repeal Obamacare in the middle of a pandemic.”⁴ This ploy is so irresponsible and harmful that eyes finally may be opened.

As to that pandemic, Trump had another typically brilliant observation: the virus “would go away without the vaccine.” How? Well, “you’ll develop herd — like a herd mentality. It’s going to be — it’s going to be herd-developed, and that’s going to happen.”⁵ Presumably he meant herd immunity, but correcting his diction would not erase the fact that, without a vaccine, many more would die in order to reach that goal.

(Trump’s blunder prompted a pertinent comment by Andy Borowitz: “Scientists Believe Congressional Republicans Have Developed Herd Mentality. According to a study, G.O.P. lawmakers have developed ‘near-total immunity’ to damning books, news reports, and audio tapes.”)

Although the ACA has improved our health care system, the failings of that system are no secret; in short, it produces worse results at greater cost than in comparable countries. The job losses due to the pandemic have provided another indication that we cannot rely on employer-provided coverage. Some form of universal medical insurance is needed. Whether the best answer is Medicare for all or something else is can be debated once we have a government which cares about the health of its citizens.

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1. https://www.irehr.org/2020/06/18/three-percenters-pose-with-olympia-police-officer- sparks-need-for-thorough-investigation/

2. https://www.huffpost.com/entry/kelly-loeffler-attila-the-hun-ad_n_5f694c4fc5b6 a9b19b 3d785e

3. https://cspoa.org/2014-resolution/

4. https://www.nytimes.com/2020/06/26/us/politics/obamacare-trump-administration- supreme-court.html

5. https://www.washingtonpost.com/politics/2020/09/16/problem-with-trumps-herd- mentality-line-isnt-verbal-flub-its-mass-death/

Saturday, September 12, 2020

September 11, 2020

The state of some of our institutions

1. The electoral college

There isn’t much to say here, other than to lament that we choose presidents through that antiquated mechanism. There’s no realistic chance of ridding ourselves of it. The National Popular Vote Interstate Compact, an agreement among states to award their electors to the candidate who wins the national popular vote, would in effect subject the electoral vote to the popular. It would take effect when states with a total of 270 electoral votes (the winning number) adopt it, but it’s stuck at 196.

2. The Supreme Court

The situation here is one of contrasts, the Court at times performing well, at times going badly astray. I’ll attempt to sort that out later.

3. The Senate

The world’s greatest deliberative body has become the graveyard of legislation. The principle of unlimited debate permitted obstructive filibusters, but at least actual speech once was required. Now the equivalent of a filibuster is achieved merely by stating an intention to filibuster — or by placing a “hold,” apparently — which can be overcome only by finding sixty votes for cloture. In effect, sixty votes now are required to pass most bills. That must end.

4. The Republican Party and the political right

The dismal condition of the GOP, leading to the nomination of Trump and to the Party’s mindless support of him, can be traced, in the medium term, to the 1960s. Several recent books tell this story.

Why the Right Went Wrong finds that the “condition of today’s conservatism is the product of a long march that began with a wrong turn, when first American conservatives and then the Republican party itself adopted Barry Goldwater’s worldview during and after the 1964 campaign.”¹ It was a reaction against the New Deal and against the moderation and accommodation of President Eisenhower. (Senator Prescott Bush, father of George H.W. Bush, described the Eisenhower philosophy as “progressive moderation” or “moderate progressivism.”)²

“It is a mark of the success of the Goldwater movement that in the ensuing decades, it did more than simply drive liberals and moderates out of the Republican Party. It also beat back alternative definitions of conservatism that were more temperate, more inclined to shape rather that resist cultural change, and more open to a significant role by government in solving problems.”³

Rule and Ruin⁴ also traces the rightward shift to the movement centered on Goldwater, again comparing it to the Eisenhower administration. In contrast to its earlier character, “the GOP has for all intents and purposes become a uniformly ideological party unlike any that has ever existed in American history.” That observation, apparently written in or before 2011⁵ is, in a sense, not true at present: the Party has many ideological characteristics but, in its Trump phase, it has become a party with no operative ideology other than submission to an autocrat. This certainly is true: “It has also become a party that has cut itself off from its own history, and indeed has become antagonistic to most of its own heritage.”⁶

Part of the ideology on the right is — to use an overworked term — populist resentment. The author points to conservatives’ rejection of Nelson Rockefeller in the 60s: it “reflected an angry and enduring American populism that abominated the Rockefellers along with the East Coast, bankers, cities, Jews, immigrants, cosmopolitans, modernism, ethnic diversity, and other perceived alien forces.”⁷ Allowing for some hyperbole, and assuming that abomination of ethnic diversity refers to racist resentment, that could describe the “populist” segment of Trump’s base. To another author, the racist impulse has made the GOP a “white grievance party”⁸

The tendencies which are traceable to the Goldwater campaign did not all come to fruition all at once. Nixon is a transitional figure, endorsing some liberal policies but, in adopting Goldwater’s southern strategy, turning the Party to the right politically. Some degree of moderation persisted in subsequent Republican administrations. Only under Trump did the GOP surrender entirely to its baser elements.

To Make Men Free: A History of the Republican Party⁹ carries the story back to the Party’s founding. The author finds that the GOP almost immediately changed for the worse after Lincoln’s death, and that only Theodore Roosevelt and Dwight Eisenhower, among later Republican Presidents, lived up to its founding principles.

In the beginning, “The Republican Congress passed [an] income tax — as well as a spate of other taxes — and went on to create a strong national government.” By the end of the Civil War, “the Republicans . . . had invented national banking, . . . provided schools and homes for poor Americans, and had freed the country’s four million slaves.”

At the turn of the century, when “corporations dominated the economy,” Roosevelt “called for government to regulate business, prohibit corporate funding of political campaigns, and impose income and inheritance taxes.” Another half-century later Eisenhower “called for government funding for schools, power plants, roads and hospitals.”¹⁰

It’s been downhill since then.

An earlier study, The Paranoid Style in American Politics takes another path to demonstrate that certain characteristics now prominent on the right have a long history. The Goldwater campaign again is a reference point: “Although American political life has rarely been touched by the most acute varieties of class conflict, it has served again and again as an arena for uncommonly angry minds. Today this fact is most evident on the extreme right wing, which has shown, particularly in the Goldwater movement, how much political leverage can be got out of the animosities and passions of a small minority.” However, it did not begin there: “Behind such movements there is a style of mind, not always right-wing in its affiliations, that has a long and varied history. I call it the paranoid style simply because no other word adequately evokes the qualities of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind.”¹¹ That describes the present as well.

Hofstadter offered, as an example of the style, Senator McCarthy’s claims, such as this: “How can we account for our present situation unless we believe that men high in this government are concerting to deliver us to disaster? This must be the product of a great conspiracy, a conspiracy on a scale so immense as to dwarf any previous such venture in the history of man.”¹² Today’s right wing are McCarthy’s children. Consider the bleating of Marjorie Taylor Greene, a Republican House candidate in Georgia (who, running in a conservative district, may well be elected). She recently informed us that “Hate America leftists want to take this country down. Our country is on the line. America needs fighters who speak the truth. We need strong conservative Christians to go on the offense against these socialists who want to rip our country apart. Americans must take our country back. SAVE AMERICA. STOP SOCIALISM. DEFEAT THE DEMOCRATS!”¹³ The Senator would be proud.

Ms. Greene is a fan of QAnon, the demented conspiracy narrative. What does Trump think of Qanon? “I’ve heard these are people that love our country. So I don’t know really anything about it other than they do supposedly like me.” The last, of course, is the ultimate test.

Hofstadter cited examples of paranoid fears in this country stretching back to the Eighteenth Century, but drew a distinction between those earlier eras and more modern ones: “The spokesman of those earlier movements felt that they stood for causes and personal types that were still in possession of their country—that they were fending off threats to a still well-established way of life in which they played an important part.” They were defending the established order. “But the modern right wing, as Daniel Bell has put it, feels dispossessed: America has been largely taken away from them and their kind, though they are determined to try to repossess it and to prevent the final destructive act of subversion.” Like their descendants, they were Making America Great Again by reliving the past. “The old American virtues have already been eaten away by cosmopolitans and intellectuals,” the notorious liberal elites; “the old competitive capitalism has been gradually undermined by socialist and communist schemers,” and on and on. Hofstadter added, “Important changes may be traced to the effects of the mass media.”¹⁴ Little did he know.

Where does this leave us? Long-term trends and deep-seated tendencies do not disappear easily or entirely, People are not going to abandon such reactions unaided. That requires leadership, but to install positive leadership in government brings us back to the people. A national majority, in the daft way that we measure it, must send Trump packing, and voters in key state must undo the Republican majority in the Senate. In the Party, however, an uprising among ordinary members and supporters isn’t likely, so someone must step forward. There have been small signs: Romney voting to convict, John Kasich, Christine Todd Whitman, Susan Molinari and Meg Whitman speaking at the Democratic convention, and endorsement of Biden by the Lincoln Project and many other Republicans.¹⁵

If we survive November, there is hope.

5. The Christian church

Marjorie Greene’s appeal to “strong conservative Christians” points to another institutional crisis, the state of American Christianity. Her reference implies that such people will support her political fantasy which, unfortunately, may be true. To be sure, not all Christians have become political right-wingers, but a disturbingly large number have done so. Usually those who have moved rightward are described as “evangelical,” or more precisely “white evangelical.” Perhaps they still deserve the latter part of the label, but the former seems to control their political orientation. Certainly support for Trump is inconsistent with morality, Christian or otherwise, and destroys their credibility.

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1. . E. J. Dionne Jr., Why the Right Went Wrong: Conservatism from Goldwater to Trump and Beyond (2016), p.4

2. Ibid., p. 102

,br>3. Ibid., p. 5

4. Geoffrey Kabaservice, Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party, From Eisenhower to the Tea Party (2012)

5. An Afterword, written in 2013, recites that the text had been completed in early 2011.

6.Ibid., p. xix

7. Ibid., p. 84

8. Stuart Stevens, It Was All a Lie: How the Republican Party Became Donald Trump (2020), p. 11

9.. Heather Cox Richardson (2014)

10. Ibid., p. ix-x

11. Richard Hofstadter, “The Paranoid Style in American Politics,” (1963) collected in Hofstadter, Library of America (2020), p.503

12. Ibid., p. 506-07

13. https://www.huffpost.com/entry/qanon-cultist-running-for-office-posts-photo-of-self- with-rifle-alongside- democratic-lawmakers_n_5f529381c5b62b3add405430

14. Ibid., p. 520

15. Many are listed here:

https://www.cnn.com/2020/08/18/politics/republicans-supporting-biden/index.html