Morning Fog

Star Witnesses Are Not Heroes

Yesterday, after watching the Thursday broadcast of the latest Congressional Hearings into the attack on the U.S. Capitol, I sat down to write a reaction, but the words just didn't mesh the way I wanted, and I abandoned the effort. Fortunately, that work was done for me by Washington Post contributing editor Matt Bai in Friday's paper. It's spot on, in my view. If you can access the Post, have a look for "These January 6 Witnesses are Doing the Right Thing Now. But They're Not Heroes."

If you can't access the Post, I offer here a few tortured phrases of my own:

Cipollone, Pottinger, Matthews, and others who testified that night are all White House staffers, confessed stalwart Republicans, several with military experience, all of whom took an oath to protect and defend the Constitution. Pottinger and Matthews resigned after January 6 because of what they saw and heard that day. The question that arose in my mind was "Why so late?" They could not have been blind to all the illegal shenanigans Trump had been up to for months before, attempting to deny his election loss and engineer a steal.  

I was especially puzzled by how cool and detached these witnesses remained, even when reviewing Trump's televised message to the nation on January 7, the one in which, far from condemning the insurgency he sparked, he yet again implied that the election had been stolen. Outrageous, unpatriotic, and just plain crazy to boot. But asked their views of that statement, Cipollone, Matthews, Pottinger, and others tiptoed. Some ventured that Trump's statement was "unhelpful," others intoned that it was "not what we needed." Weren't they appalled that the gutless wimp they worked for was repeating an insidious, self-justifying lie? Was it only on January 6 or 7 that they recognized that the president was unhinged and the entire White House (themselves included) had been covering up for him for months? 

Sorry, but circumstances suggest they "came clean" for Congress (and we can be grateful that they did) but only because the end was in sight, and they hoped to salvage their reputations in hopes of an appointment in the next Republican administration. No heroes here, folks.

How To Make The Case For Abortion

I have read and heard lots of prolix discussion over the past month regarding the legal basis for a right to abortion. Some opine that Roe v. Wade would not now be history if the case had been argued originally on the basis of equal protection of the laws [Fourteenth Amendment] rather than the seemingly fuzzier issues of privacy.

Well, balderdash, say I. (I also say "bullshit," but the other word sounds much more legalistic, doesn't it?)  Let's be more fundamental than that! Consider a much more "original" clause of the Constitution, i.e. the First Amendment. I quote the relevant portion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;".  

Nearly everyone's view on the issue of abortion is born out of a religious conviction or dogma. This is an issue of religion, no bones about it.

So where do the fuzzy-minded fetus-protecting reactionary Supremes get off, reading into the Constitution a religious dogma that is to be foisted on all citizens? The simple wording of the Constitution leaves certain things unsaid but a high legal mind ought to be able to figure out that the First Amendment cannot protect one religion, or religious view, by making it the law of the land. That effectively establishes a religion. 

Despite my strong conviction that the court's decision in Dobbs v. Jackson Women's Health Organization is in direct conflict with the Constitution, I might nevertheless have assumed that the court's error could never be corrected at this stage. But I'm very glad to see, in this week's New Yorker, that a synagogue in Florida has filed suit against that state's anti-abortion law. Jewish law, it seems, stipulates that life begins at birth, and requires the mother to abort a pregnancy if there is a risk to her health or emotional well-being. The suit therefore argues that Florida law infringes on Jewish free exercise of religion.

BOOM.

By the way, it appears to me that the Ninth Amendment is relevant to the reasoning the conservative majority of the court used in Dobbs. Justices might want to review it. It reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Really now, have they ever read this document we call the Constitution? Doesn't the Ninth suggest that regardless of state laws, a right of abortion, having existed as law for decades, still exists? The weak arguments underlying Dobbs sadly only serves to demonstrate that the decision was politically motivated. 

 

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Roe v. Wade - Why Was the "Draft" Leaked?

Everyone is afire about the leak of the U.S. Supreme Court's supposed "draft" decision on Roe v. Wade. Ho-hum. There are things to be said about Roe, which I'd like to address later, but for now, I'm just wondering, since we knew what was coming, why would someone take the risk of leaking it?

Hmmm.  How about politics? We have an election coming in October. All political observers at this point are saying Republicans are far more motivated to go to the polls than Democrats. But many also have suggested in recent days the actual decision (i.e. the Court really is going to kill Roe v. Wade) might fire up a lot of Democrats and push them to the polls. What if the leaker had known that the Court intended to delay release of the decision until after the election?

If you say the revered non-partisan Court would never do such a thing, I counter that the Court created lots of doubt about its vaunted apolitical stance as far back as the Bush-Gore election. And Trump and McConnell put lots of icing on that cake. I for one no longer believe the Court can be considered unbiased.  And if you should note that the Court usually announces the decisions of each term at least by October, I might ask, do you really suppose, in the sort of political climate we "enjoy" these days, that they couldn't trump up a reason to delay releasing that one?

Food for thought, say I. 

Shame At The Capitol

Well, today's events at the U.S. Capitol certainly merit the term "shameful," as rioters egged on by our mentally deranged criminal-in-chief stormed the Capitol, seeking to disrupt the proceedings.

There is lots of shame to go around: 

for the "protesters" who allowed themselves to be hornswoggled once again by a serial liar;

for Trump's many, many Republican enablers who have consciously sought to undermine U.S. election procedures based on nothing more than their lack of courage or even a shred of concern for their sworn duties  ;

shame too, I must say, despite their valiant efforts, on Capitol security officials who failed to prepare for an attack that was certain to come;

shame for our news media, who can only sit around and lament that they've "never seen anything like this;

even greater shame, though of a somewhat different sort, for the millions of Americans who had enough common sense NOT vote for Trump yet are stuck with this degrading view of their democracy;

and even a smidgen of shame - the shame of ignorance - for those voters who DID vote for him without being able to see what he was, and is.

Who in this country tonight is without shame?  Only Donald Trump.  And while many involved in the aftermath of today's events are suggesting the worst is over, I would remind them that Trump is still with us (which means of course, that he is against us). He did not retracted his incitement of the rioters, but instead reiterated his baseless claims that the election was stolen from him! I think we should consider that his whole performance today was calculated to produce the result it did. Definitely, it will delay still further the official certification of the election results; but -- think like Trump for a moment and wonder if the resultant chaos at the Capitol may presage more chaos on inauguration day, or perhaps (just perhaps) his attempt to declare martial law and call the entire election null and void.  Would that make his enablers stand up and be counted?  Maybe. But ONLY MAYBE.  

A Bazaar Of The Bizarre

I've been busy this week and may have missed some news items, but it's clear that Trump's desperate measures to deny reality have only become more and more bizarre. Why should we - citizens of the United States, of any political stripe, put up with this charade?  Trump loyalists have suggested that it's just a matter of humoring our wack-doodle President until he comes to terms with reality, but what precisely are they doing to burst the bubble of his make-believe world?  My question of just a few posts ago ("Is Insanity Contagious?") has been answered affirmatively, as more and more Republickin's, most recently Rudy Giuliani, have thrown their own sanity and political futures on the blaze of Trumpian fury.

Enough, already. The solution for this exists in the Constitution, Twenty-Fifth Amendment, Section 4. Mr. Vice President, do your job! If anyone should doubt that Pence has the fortitude to declare Trump incompetent, join the club!  But this is what we need.  

 

Supreme Court Election Meddling

As a followup to my post of October 27, below, it's worth reading a piece from the Washington Post this Sunday titled "The Supreme Court Shouldn't Decide Voting Cases".

It seems the Court has already left the barn through a back door, showing an unnecessary willingness to rule off the cuff where no ruling is needed.

 

Down the Slippery Slope To A Less Supreme Court

I can't muster much enthusiasm for arguing about the nomination and near-certain confirmation of Amy Coney Barrett for the vacant seat on the U.S. Supreme Court. The candidate herself does not appear to be exceptionally distinguished, and he experience is brief, but her background, like that of probably 1,000 other jurists we could unearth, is adequate. Even Democrats see that the outcome of the vote is foregone. They are using their time sensibly, to make clear some of their policy concerns, so far without the rancorous, bitter, and emotional outcries we've had in previous iterations of this exercise. The same drama plays out every time we need a new Justice. Let's get on with it, then.

There can be no question that the Republican Party has savaged, on at least two occasions now, political comity in its crazed pursuit of dominance on the Court. We might wish it weren't so, but in politics, the ultimate deciding factor is power; and the only possible response available to those aggrieved by bad treatment is to have a long memory and play even less fair next time. Let's not be surprised. 

Will Barrett's confirmation much affect issues before the Court, as Trump has made clear he expects? It's impossible to tell. However, because of the absolute certainty of her confirmation, Barrett doesn't even need to lie about her views (as so many others have done) and I actually like that her mode of response seems less orotund than (for example) Kavanaugh's was. Could that mean there is a slightly better chance that we can believe her?  

No comment. But at this time and place I hope all the Justices will have foremost in mind their role in our Constitutional structure, and the broad deterioration of the Supreme Court's legitimacy with voters, beginning at least from the unnecessary intervention in the election of 2000 and running through our current  President's concerted attacks on the rule of law.  The red line I see is the Court's meddling in election results again. We have perfectly good election mechanisms; the Court was not needed. Court intervention shouldn't be required this time, either, but because of Trump's and his henchmen's efforts to call the election process into question, perhaps it will be. This is one of the many indicators of Trump's many pernicious and destructive effects on U.S. society.

I am not among those who expect Barrett to commit in advance to recuse herself from cases involving the election. (Any more than I expect Biden to give a firm answer about whether he would try to "pack" the Court.) But after her confirmation, if the court accepts such a case, I would absolutely expect her to do so immediately. And not just her. Justice Kavanaugh probably should also recuse himself.  He too was :on the ground fixing the outcome in Florida. Perhaps we should suggest that any Justice on the Court in 2000 should recuse him/herself? This could get pretty ridiculous! So let's just leave it for new Justice Barrett, the one who has publicly and specifically been commissioned by Trump to assure his reelection, to recuse. It won't be a happy start for her.  It may be the only way the Court can retain a wisp of legitimacy. Whatever decision they make leave half the U.S. population doubting their impartiality. 

Best then, that they refuse to take any case involving the election.  

 

There can be no question that the Republican Party has savaged, on at least two occasions now, political comity in its crazed pursuit of dominance on the Court. We might wish it weren't so, but in politics, the ultimate deciding factor is power; and the only possible response available to those aggrieved by bad treatment is to have a long memory and play even less fair next time. Let's not be surprised. 

Will Barrett's confirmation much affect issues before the Court, as Trump has made clear he expects? It's impossible to tell. However, because of the absolute certainty of her confirmation, Barrett doesn't even need to lie about her views (as so many others have done) and I actually like that her mode of response seems less orotund than (for example) Kavanaugh's was. Could that mean there is a slightly better chance that we can believe her?  

No comment. But at this time and place I hope all the Justices will have foremost in mind their role in our Constitutional structure, and the broad deterioration of the Supreme Court's legitimacy with voters, beginning at least from the unnecessary intervention in the election of 2000 and running through our current  President's concerted attacks on the rule of law.  The red line I see is the Court's meddling in election results again. We have perfectly good election mechanisms; the Court was not needed. Court intervention shouldn't be required this time, either, but because of Trump's and his henchmen's efforts to call the election process into question, perhaps it will be. This is one of the many indicators of Trump's many pernicious and destructive effects on U.S. society.

I am not among those who expect Barrett to commit in advance to recuse herself from cases involving the election. (Any more than I expect Biden to give a firm answer about whether he would try to "pack" the Court.) But after her confirmation, if the court accepts such a case, I would absolutely expect her to do so immediately. And not just her. Justice Kavanaugh probably should also recuse himself.  He too was :on the ground fixing the outcome in Florida. Perhaps we should suggest that any Justice on the Court in 2000 should recuse him/herself? This could get pretty ridiculous! So let's just leave it for new Justice Barrett, the one who has publicly and specifically been commissioned by Trump to assure his reelection, to recuse. It won't be a happy start for her.  It may be the only way the Court can retain a wisp of legitimacy. Whatever decision they make leave half the U.S. population doubting their impartiality. 

Best then, that they refuse to take any case involving the election.  

 

A Peach Of An Impeachment Issue

Today's lead editorial in the Washington Post (in the print edition entitled "Action in Congress") warns that amidst all the focus on the Mueller investigation and speculation about Trump-team collusion with the Russians, the more serious and pressing issue is safeguarding our elections from future meddling.  On this, little has been done. And that's because Trump has chosen to pretend the Russians didn't meddle (or meddled without consequence). Yet it seems certain that more attempts to meddle can be expected in Congressional elections later this year.

The Post urges that Congress address the issue by means of a legislative proposal cosponsored by Senators VanHollen (D-MD) and Rubio (R-FL), entitled "DETER" for short (and "Defending Elections from Threats by Establishing Redlines" for long). The idea is to pre-define such heavy sanctions upon any country shown to have meddled in our elections that they would have a deterrent effect. Indeed, Van Hollen and Rubio deserve credit for their initiative, and I fully agree Congress should pass it.

But the Post doesn't go far enough. I'm not personally very satisfied by trying to deal with election meddling after it has occurred. That doesn't provide much incentive for those politicians who may benefit from the interference to follow through with imposing sanctions later. (It certainly didn't this time.) So we also MUST have better security in our election process to prevent meddling at the source. This lies within the purview of state governments, where progress on this front unfortunately is inconsistent. Many states need to do more. 

There is one "bright" spot (unfortunately in a very dark sense) for those who see Trump as the menace he is to our democratic processes and institutions.  It strikes me his attempt to sweep election meddling under the rug, his ignoring clear evidence it took place, his denial that it might have benefited him ("tax reform" anyone?); and above all his failure to address it before the next election, might provide excellent bipartisan ground on which to base a serious case for impeachment.  Realistically, we can't impeach him for a sexual dalliance (though the Republicans tried that with Bill Clinton, didn't they?). But failure to protect our free and fair elections? Let's go with it.  

  

Confirmation - Of Our Worst Fears

I don't think the Dems should be filibustering to keep Neil Gorsuch off the Supreme Court.  It's a lost cause, with some obvious negative consequences.  The most serious is the institutionalization of the "nuclear option," which can't be walked back, and which is not in the interest (that some may yet cheriish) of good government. Further, if they fight the good fight and lose in the end, it exposes them as weak; and the effort simply provides Trump the opportunity once again to play to his base by claiming that the Democrats are against everything he is striving to do. 

Which brings up the Republicans. They, of course, are the party that was dead set against everything Obama was trying to do (even though he won both the electoral AND the popular vote) and who cynically broke with tradition and common sense, withholding even a hearing on Obama's Supreme Court candidate. Democrats are justifiably miffed about that, so it's not at all surprising at least some of them feel the need to express their anger through resistance, however futile it may be.

If any politicians on either side of the fence are really thinking about the public good, or restoring a sense of communality in our political life, we might suppose they'd come to an understanding.  The Republicans allow the Democrats to rant for a day or two and don't rush to use the nuclear option. (After nearly a year, what's the hurry now?) The Democrats for their part accept, if not forgive, Mitch McConnell's abuse of power; they hold the rant to a day or two but stand down from the full-blown filibuster.

I feel pretty sure it won't happen that way, so we are likely to see this process further poisoning the political atmosphere. On the other hand, I suspect the first party to start backing away from extreme and damaging partisanship (in this case that would be the Democrats) could see a bump in public respect.

Update On Voter ID

In my last post I reiterated my opinion that there is no harm - and maybe some good - in requiring voters to have identification.

But hardly had I posted it than I read Courtland Milloy's interesting column, "Obama's Dance Partner Can't Secure Photo ID."  Referring to Virginia McLaurin, the 107-year-old black woman who was recently honored at the White House, Milloy pointed out that Ms. McLaurin, as a result of the recent attention, has receiving invitations to go to New York and Los Angeles, but under current law cannot board an airplane because she lost a photo ID years ago and would likely have trouble replacing it. She was born in South Carolina, delivered by a midwife, and the birthday was recorded in a Bible since lost.  Probably no birth certificate was issued.

The good news for McLaurin:  DC does not require a photo ID to vote.  Also, just today, after this case was publicized, the District of Columbia acted to make it easier for people like her to obtain a photo ID.

But then what about the other case Milloy mentions?  In North Carolina, 86-year-old Reba Miller Bowser presented her birth certificate, social security card, Medicare card, a cable bill and an apartment lease but local officials denied her a photo ID on the grounds that she had no proof that she had changed her maiden name to her married name. 

Here again the ending was happy, if slightly delayed: the North Carolina DMV reconsidered and issued her the required photo ID in time for her to vote in last month's primary.  Yet as her son points out, if the case had not received so much attention in the media, it might not have been resolved so easily.

I stick by my opinion. It seems reasonable to ask voters to present a photo ID card.  But that opinion depends, of course, on one underlying assumption:  that state laws, and state officials, recognize and fairly apply fundamental legislation applicable to civil rights and voting rights. Evidently, there are still some corners of the realm in which that may not be the case. {Yes, in our hearts and minds, we knew this.]

If we can't count on that kind of faithful, professional application of law at the state level, we may have another good argument for moving to a national identification system.