July 11, 2019

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

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

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

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

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

July 5, 2019

Elected officials of the Democratic Party are striving to validate the first part of Will Rogers’ dictum:  “Democrats never agree on anything, that's why they're Democrats. If they agreed with each other, they'd be Republicans."  (The lockstep-behind-Trump GOP demonstrates the other part).

The Dems began, after winning the House last fall, not by agreeing on a strategy but arguing about whether Nancy Pelosi should be replaced as  speaker.  Alexandria Ocasio-Cortez, rather than displaying the caution appropriate to one who is new to her role, postured like a party leader, abetted by breathless media coverage.  She announced a plan to challenge some of her colleagues at the next primary; doctrinal purity over party solidarity.  As Rogers also said, "I'm not a member of any organized political party. . . . I'm a Democrat."

There has been consensus in the House on some issues, but surprising discord regarding  a formal impeachment inquiry, which would focus attention on Trump’s incompetence, dishonesty and venality.  (Here Ocasio-Cortez has the right idea). 

The fact that it is idiotic to start the presidential election season this early may be a factor in driving the Democratic candidates into a hyper-competitive, mutually destructive mode. Sen. Kamala Harris may have thought that her angry, self-righteous attack on Joe Biden would be a clever tactic, and would make her the darling of the left, but its primary effect was to help Trump.  The media aided in both regards by declaring her performance powerful.

The candidates have other, less ego-driven problems.  Many back Sen. Sanders’  Medicare for all plan, but his and their support seems unexamined.  Problems include ignoring cost and glossing over, or waffling on, the elimination of private insurance, including employer-provided plans.  That would seem to ensure opposition not only by a powerful business lobby, but by many employees and those who suspect that supplemental insurance always will be needed.  

Republicans’reactionary policies and political immorality must be opposed and defeated, but Democratic disunity will not accomplish that. Democrats must follow a progressive agenda on, for example, economic inequality, but an unthinking lurch to the left lessens the chances of ridding us of Trump and McConnell.

June 17, 2019

Right-wing television performers, a.k.a. news people (the real fake news) are wrong with regularity and most often annoyingly so, but now and again their nonsense provides comic relief.

Rush Limbaugh compared D Day to the “invasion” of illegal immigrants at the southern border.  The analogy would put the border patrol in the shoes of the Nazi defenders and the immigrants would be the liberating troops.  That probably wasn’t the image he had in mind, but nonstop bloviating is bound to confuse.

When Nancy Pelosi said she wanted to see Trump in jail, Sean Hannity responded in baffled horror: she "wants a political opponent locked up in prison? That happens in banana republics -- beyond despicable behavior."  Apparently that became despicable only recently; Hannity parroted “lock her up” over and over about Hillary Clinton’s alleged crimes.  Speaking of banana republics, has Sean noticed the trend of our nation’s character under Colonel Trump?

Ainsley Earhardt of Fox and Friends contributed this: “you can say whatever you want about the president, but his negotiation tactics are amazing.”  His skills are so formidable that he is conned by Putin and Kim, and this is her notion of his negotiating tactics: “he's sitting down with this delegation, he's got folks in D.C. right now that have been sitting down with these Mexican delegates that have come up to try to work out a deal.”  Sitting down! Impressive.

Her first phrase seems to admit that there is much on the debit side to say about Trump, again probably not the intended message.

Meanwhile, two things we can say about the President were confirmed: he isn’t bright, and he thinks that election-related collusion with foreign sources is just fine.  He has denied continuously  any collusion with Russia and twisted the Mueller Report to mean that there was none.  However, his and his campaign’s eager reception of ammunition against Hillary Clinton showed collusion, and now he’s underscored his willingness to repeat that pattern.  Asked whether he would accept politically damaging information from a foreign source, he said "I think you might want to listen, there isn't anything wrong with listening,"  As an example, "If somebody called from a country, Norway, [and said] ‘we have information on your opponent' -- oh, I think I'd want to hear it."  We might guess that the source would be a bit more sinister than Norway.        

In a tweeted attempt at damage control, Trump likened election interference to his conversations with such dignitaries as the Prince of Whales.

June 4, 2019

Apparently it was necessary for Robert Mueller to deliver an address informing us that the report of his investigation meant what it said.  Following his recent public oral summary of the report, news media and various Democrats suddenly and dramatically announced their awareness of its message, including its reminder that Congress has the power to remove a president.

It is true that the report is bland, cautious and indirect.  However, Mueller’s recital was no less so.  The report is long, but its executive summaries made the same points that he made in his brief speech.  Perhaps Democrats and the media learn only aurally, in the case of the latter an ironic trait as they attempt to persuade people to read newspapers or web pages. 

Now that the reminder has been underscored, perhaps Nancy Pelosi’s somewhat puzzling reticence will be overcome.  Democrats shouldn’t fall for the argument that Trump is goading them into impeaching him, calculating that he can play the martyr on his way to reelection. He is afraid of impeachment, as he has been afraid of disclosures about virtually any aspect of his life.

Many Democrats and pundits think that impeaching Trump is not worth the political risk.  They may be worrying too much about 2020, and overstating the likelihood of Trump’s reelection.  Trump lost in 2016 by 2.8 million votes; only the peculiarity of the electoral system saved him, and that by fewer than 78,000 votes scattered over three states.  A focus on critical states, largely absent last time, could bring a different result.  As to the popular vote, it’s difficult to imagine that anti-Trump voters last time will vote for him next time around, and easy to think that a few of his backers have had enough.  Polls continue to show negative favorability and job performance numbers for Trump, and thus far straw polls show some of the Democratic candidates leading him for 2020.  All of that could change, but if Democrats can’t defeat a candidate as unqualified as Donald Trump, they may as well disband.

Why does Trump want to be reelected?  He has so little interest in governance and is so removed from any coherent philosophy that another run, which clearly is underway,  seems to have nothing to do with politics, in the usual sense.  True, he will advocate border control, but that is more opportunistic than principled.  He will support lower taxes, but that is a matter of private interest.  Winning again serves two needs: extending his immunity from prosecution, and caressing his ego.

That ego is fragile.  He reacts dramatically to any perceived slight.  At some level, Trump may know that he is a loser, and not only at the ballot box.  Treating him with caution is the wrong approach; he should be challenged, constantly and systematically, the latter best achieved through an impeachment proceeding.  The House Democrats should learn a lesson from the Mueller restatement: Trump’s unfitness has been public knowledge from the beginning, but it may take a formal, broadcast recital to drive the point home.  Televised impeachment hearings could be the vehicle.

When the House Judiciary Committee considered impeachment of Richard Nixon, it was criticized for conducting a compilation rather than an investigation.  A systematic, public, televised compilation of Trump’s abuse of his office is just what is needed now; many of the facts already are known; they need to be gathered and dramatically displayed.  (A good preliminary summary appeared in Dana Milbank’s Post column on June 3, but effective only for those who read). 

A cap spotted on a Trump doll in the anti-Trump protest in London read: “Make America Great Again. Impeach Me.”  Congress, there’s yet another hint.  (I liked “Build a wall to keep Trump out” too).

May 17, 2019   

     The Mueller report confirmed the obvious; Donald Trump should not be President.  Several hundred former federal prosecutors have declared that, if Trump did not hold that office, which supposedly renders him immune from indictment and prosecution, he would have been indicted for obstruction of justice. That immunity was assumed by the Mueller team, based in part on a Department of Justice opinion which found that “The  indictment  or  criminal  prosecution  of  a  sitting  President  would  unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”[37] 

     Even if the President should be protected from a criminal trial during his term because it would be too disruptive and time consuming, an argument can be made for permitting indictment, which would be less so.  However, the Special Counsel decided otherwise, so the question probably is moot.     The Mueller Report did not make a criminal referral and ended the obstruction section with this weak conclusion: “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”  Even that suggests evidence of misconduct, but it allowed Trump to claim vindication and Mitch McConnell to declare “case closed.”

     The Mueller report, in addition to accepting and deferring to the DOJ opinion, added this statement of limitations: “we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”  The first part of that sentence essentially restates the DOJ opinion in non-constitutional terms, but the reference to preempting constitutional processes is a not-very-subtle hint that impeachment is the way to deal with Presidential crimes.

     The prosecutors’ letter is as direct as the report is elliptical:

The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;

· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and

· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.[38]

The last was later more forcefully expressed as witness tampering and intimidation.

     Should President Trump be impeached?  Certainly he deserves it, and impeachment would be a formal declaration of his crimes.  He would not be convicted by the spineless Senate, so impeachment would have to be justified by its declaration alone.  Persuasive arguments have been made for and against.  My initial reaction was that it would be a bad idea.  It would allow Trump to complain again about how Democrats, jealous of his election, are conspiring to bring him down, to stage a coup. The legal pointlessness of impeachment would feed that narrative.  It would take some time to vote impeachment, especially given the lack of consensus among Democrats.  The election season already is under way, and impeachment might seem a late, desperate, attempt to tip the scale.

     Also, the House does not need an impeachment resolution to investigate Trump’s actions.  Pursuing new avenues and adding evidence to known scandals might doom his chance of reelection, so removal, though delayed, would be by conventional means.  Democrats also need to address, and need to be seen addressing, issues other than Trump’s character.

     However, the point remains: he is unfit for office.  Do we accept that as just one of the facts of contemporary politics?  Do we in effect declare that obstruction, along with Trump’s other disqualifying traits and actions, is acceptable because declaring  otherwise might be politically risky?  Should the House duck its constitutional responsibility and hope that voters do its job?   Caution in the face of menace often doesn’t produce good results.   In addition, Trump and his supporters will accuse the Democrats of all sorts of jealous, divisive misconduct even if they make no move toward impeachment, so the risk may not be as great as it seems.  

     If impeachment were to proceed, what should the articles allege? Obstruction, as detailed in the Mueller report, is obvious, and Republicans would be hard pressed to claim that such a charge is unwarranted, given the obstruction article in the Clinton impeachment, based on trivial underlying issues.  Trump has entered phase two of obstruction, refusing document requests by Congress, interfering with testimony, and suing third parties to prevent cooperation with Congress.  This form of obstruction undermines Congress’ oversight role and threatens the equality of the branches of government.  Trump justifies this interference by arguing that requests for information must be limited to supporting proposed legislation, in effect that Congress has no oversight authority.  The implication is that, in order to investigate, the House must be pursuing impeachment.  It may as well take that hint too.

     Mueller found no conspiracy with Russia, but Trump and his campaign staff clearly welcomed its interference.  There couldn’t be a clearer demonstration of that than Trump’s public appeal to Russia on July 27, 2016 to publish Hillary Clinton’s emails.  That alone may have been a crime and, as election hacking by foreigners clearly is a crime, it it suggested that a President Trump would have little regard for the constitutional duty to take care that the laws be faithfully executed.

     A citizen is said to have asked this of Benjamin Franklin about the work of the Constitutional Convention: “Well, Doctor, what have we got—a republic or a monarchy?” His reply: “A republic, if you can keep it.”  That warning, apocryphal or not, deserves attention.  Trump’s authoritarian aspirations are revealed by his respect for foreign strong men, most recently demonstrated by his hosting Viktor Orbán, who knows how to deal with pesky news media.  Trump, due to ego-driven instinct and as a reaction to threats, is giving the imperial presidency a new meaning, emulating a monarch, attempting to rule independent of the first branch.  Congress needs to take action to preserve the Republic.

     Trump is unique among Presidents in the degree to which he puts the country in peril.  That should tip the balance: we can’t afford another term or another Trump.

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

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

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April 22, 2019   

The awful Notre Dame fire struck me as the loss of a friend, a haven, a symbol of permanency in a time of flux, a symbol of values in a time of self-absorption.  (A tourist taking a selfie in front of the cathedral is the perfect, mocking, image of the new age).  Damage to an architectural wonder of the past is sadly appropriate to a world which knows nothing of beauty and parades nonsense as art and violence as entertainment.

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I dislike hanging crepe with every post, but it’s difficult not to see disaster on the horizon.  Consider the inevitability of increasing climate-related damage and the physical and social turmoil it will bring.  Add the hostile, separatist, violent attitude of many on the right, and the ready availability of weapons, and it becomes easy to imagine civil war or armed chaos.  We are politically blocked from preventing the ecological disaster, and predisposed to a primitive response to it.

Look at the state of government.  Andrew Wheeler, a former coal-industry lobbyist, recently was confirmed by a docile, irresponsible Senate as Administrator of the Environmental Protection Agency, having been Deputy, then Acting, Administrator  since April 2018.  That would have been time enough to learn about the climate crisis, if he had any intention of doing so.  One lesson might have been the most recent National Climate Assessment, which found that “The impacts of climate change are already being felt in communities across the country.”  Wheeler will have none of that: “Most of the threats from climate change are 50 to 75 years out.”  There have been no fires and no flooding; the seas haven’t risen or become more acidic; all is well.  Wheeler is, of course, in step with his leader. 

David Bernhardt was confirmed as Secretary of the Interior this month, having been acting Secretary since January. Already he is the subject of an investigation by the department’s inspector general, following various allegations of ethical violations.  His former role as a lobbyist for industries regulated by Interior lies behind the charges.

Trump nominated hacks to positions on the Federal Reserve Board, in an attempt to end its independence. Another appointee recently confirmed, William Barr, has demonstrated that his first duty is to protect the boss.  Trump first hailed the Mueller report as exoneration, but later decided it was an “Illegally Started Hoax.”  He has one of the great memories of all time, but repeatedly responded to Mueller’s written questions by pleading lack of recall.  He vents continually on Twitter, reportedly 50 times in 24 hours Monday and Tuesday.     

Ukraine just elected a comedian as president.  We have a bad joke.

April 13, 2019 

The death penalty, apart from its questionable morality, bias in its application and the possibility of wrongful conviction, is an historical relic. This was made clear by the Supreme Court in Bucklew v. Precythe, decided April 1. The appeal involved a claim by a prisoner that the form of execution in his state violates the Eighth Amendment, which prohibits cruel and unusual punishments. His principal argument was that, because of his unusual medical condition, the lethal injection would cause great suffering before taking effect. The majority opinion, written by Justice Gorsuch, rejected the claim, along the way not only validating the death penalty but deciding that the infliction of pain in the process raised no Constitutional issue. 

The Bucklew decision did not appear from nowhere. Justice Gorsuch relied on two prior decisions, Baze v. Rees, 553 US 35 (2008) and Glossip v. Gross, 576 U.S. ___ (2015). The lead opinion in Baze was signed by only three Justices. However, Glossip treated the plurality opinion as if it were precedent, referring to it as the “controlling opinion.” Baze relied in turn on Gregg v. Georgia, the lead opinion of which was, again, that of only three member of the Court. It’s difficult to discern a well-considered theory of capital punishment in all of this. Bucklew follows their lead, but the defects in Gorsuch’s opinion go beyond following flawed predecessors. 

Much of the Bucklew opinion is devoted to the question of whether an alternative, less painful method, of execution is available. Baze and Glossip establshed rules which placed the burden of identifying an alternative method on the prisoner and made it difficult to carry that burden. 

The death penalty itself poses no problem for Gorsuch because the “Constitution allows capital punishment. . . . In fact, death was ‘the standard penalty for all serious crimes’ at the time of the founding.” The internal quote is from a book on the history of the death penalty published in 2002.[32] It appears to have been a primary source for Gorsuch, cited seven times in his opinion. However, the Constitution does not “allow” capital punishment; it simply recognizes its existence. True, the Baze plurality opinion cited “the principle, settled by Gregg, that capital punishment is constitutional.” However, the Gregg lead opinion stated only “that the punishment of death does not invariably violate the Constitution,” which is not quite the same concept. 

There would seem to be no impediment to the Court’s declaring capital punishment a violation of the Eighth Amendment, but Justice Gorsuch thinks otherwise. The Court, in his view, would lack the power or authority to declare it unconstitutional: “the judiciary bears no license to end a debate reserved for the people and their representatives.” It will be interesting to see whether he is so reticent when an issue he feels strongly about arises. 

As to the merits, Gorsuch would not find that the death penalty is barred as cruel punishment. For authority, he cited a case from 1890 which declared that “the punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies . . . something inhuman and barbarous, something more than the mere extinguishment of life.” [33] It’s stunning that a Supreme Court opinion in 2019 could refer, even by way of citation, to the “mere” extinguishment of life. 

An enlightened approach would be to interpret the Constitution against the background of present conditions, including less brutal attitudes, rather than treating it as holy writ, ending progress in 1791. That the latter is Justice Gorsuch’s theory is made clear. The opinion’s argument relies on such phrases as “at the time of the framing,” “consistent with the Constitution’s original understanding,” “at the time of the Amendment’s adoption,” “the original and historical understanding of the Eighth Amendment.” 

The Court has not always felt bound by the view of life at a time long past. In 1958, Chief Justice Earl Warren expressed an interpretation which has been generally accepted: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[34] That was reaffirmed in 2002, in Atkins v. Virginia, an Eighth Amendment death penalty case: “A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail." [35] No longer, apparently. Presumably the present Court would find the fact that twenty states and the District of Columbia now do not impose the death penalty,[36] an indication of evolving standards, to be irrelevant. Perhaps if a few more states evolve, capital punishment will become “unusual.” No, that wouldn’t conform to the understanding at the time of the Amendment’s adoption, which underlies Gorsuch’s interpretation. 

“[W]hat unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment . . .” Apparently a new form of barbarity would not be banned as unusual. As to the other element, the Amendment barred anything that “intensified the sentence of death with a (cruel) superadd[ition] of terror, pain, or disgrace.”[37] Therefore, the added, possibly avoidable, pain in the execution of Mr. Bucklew isn’t prohibited on the ground of cruelty either, as it isn’t intentional torture, just part of the process. 

As to the prisoner’s argument about the pain he would, uniquely, endure, Gorsuch advised us that, in the bad old days, prisoners were subjected to barbaric practices such as drawing and quartering, and those were the cruel punishments contemplated at the end of the Eighteenth Century and therefore barred by the Eighth Amendment. Pain imposed by execution couldn’t be an issue because the preferred method of execution at the time of its adoption was hanging and, although hanging often resulted in significant pain, its use “was virtually never questioned,” quoting his favorite source. 

What does his history lesson disclose as to the proper interpretation of the Eighth Amendment? “For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.” In that remarkable statement, he excused the infliction of pain on historical grounds, then leaped to an-eye-for-an-eye excuse. 

If defense of the death penalty, and the suffering it inflicts, requires as convoluted an argument as this opinion, there must be something fundamentally suspect about it. 

Postscript: 

As I was about to post this note, I came across an article reporting a decision in a similar case from a different state, but again involving a death-row prisoner’s request for an alternative to lethal injection. The Supreme Court decided 5-4 that the execution could proceed as planned. The article stated that the “high court’s order and dissenting opinion underscored the divide between the court’s conservative and liberal justices over 11th-hour execution challenges,” noting also the dispute in the Bucklew case. 

However, it isn’t sufficient description, or enough justification, to label the Gorsuch opinion, or its predecessors, or any defense of the death penalty simply as conservative views. Conservatism, insofar as it is the tendency to honor tradition and resist hasty or ill-considered change, not only is respectable, but is necessary to preserve continuity and to prevent mistakes and disruption of social fabric. However, when it it becomes unthinking opposition to change or defense of the indefensible, it prevents progress, and when it is, as here, an unwarranted worship of the past, it binds civilization with rusty chains.

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32. S. Banner, The Death Penalty: An American History
33. In re Kemmler, 136 U. S. 436, 447 (1890)
34. , 356 U.S. 86 (1958)
35. 536 U. S. 304, 311 (2002)
36. Moratoria are in effect in another three states. https://deathpenalty.procon.org/view.resource. php?resourceID=001172
37. Quoting the concurring opinion of Justice Thomas in Baze, [internal quotes omitted].