What He Knew and When He Knew It

Charles Pierce of Esquire points out a big difference between the Watergate scandal and the attempted coup that led to January 6th:

As it happens, Tuesday was a kind of anniversary. On June 28, 1973, Senator Howard Baker, Jr. (R-Tenn) of the Senate Select Committee On Presidential Campaign Practices —the Watergate committee — began his questioning of former White House counsel John Dean, who had spent several days laying out with bloodless precision what would become known as “the White House horrors”. Baker asked the question that made him famous.

The central question at this point is simply put: What did the President know and when did he know it?

Nobody asked Cassidy Hutchinson that question. It was moot. The answer, as she spent Tuesday telling the committee, was “Everything” and “Immediately”.

Onward Christian Soldiers, Supreme Court Edition

The first words of the Bill of Rights are: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. In recent decades, that’s meant people are free to practice their religion (the Free Exercise Clause) but not promote it as part of their government jobs (the Establishment Clause).

Charles Pierce of Esquire discusses today’s right-wing reinterpretation of what constitutes free exercise and the establishment of religion:

… It was a pretty good day for theocracy. In Kennedy v. Bremerton School District, by the 6-3 vote that was so carefully purchased with dark money and so carefully engineered by Mitch McConnell, the Court sided with a football coach named Joseph Kennedy who used to have his team meet at midfield for a postgame exercise in what the Court said Monday was “quiet personal prayer.”

The history of the case is a perfect example of a small-town controversy that was fairly clear-cut until the conservative movement managed to get it through a carefully engineered conservative-heavy judicial system until it finally landed on the doorstep of Supreme Court Justice Neil Gorsuch. In 2015, the school district told Kennedy to knock it off. Kennedy refused and was placed on administrative leave. Instead of reapplying for his job when his leave ended, Kennedy decided to sue the school district. He lost in court. Then he lost his appeal. Then an earlier Supreme Court declined to take his case.

But the longer you can keep going in the courts, the better chance you have of running into a conservative Christian who will find room for white-people Jesus in the Bill of Rights…. Kennedy tried again and, this time he finally found Gorsuch and the rest of the Papal States on the Supreme Court.

Once again, that crew threw aside a sensible, durable framework in favor of some sort of weird, literalist invocation of American history. Much of the previous Establishment Clause law had rested on a 1971 case called Lemon v. Kurtzman—decided, it should be noted, by an 8-0 vote under Republican Chief Justice Warren Burger …

Leaving Coach Kennedy’s triumph for a moment, we should be wary of the blithe way the Court’s majority dismisses Lemon as irrelevant to Establishment Clause jurisprudence. Lemon was not purely about prayer. It has also been central to keeping the bunco scheme that is Creationism—as well as its gussied-up cousin, Intelligent Design—out of the public schools … [Lemon] was used to squash attempts at bootlegging Creationist bushwah into science classes in Arkansas and Louisiana … in 2005, when it helped decide a famous case in Pennsylvania. …

In this particular political moment, you’d have to be considerably naive to think that the reactionary right isn’t coming for the public schools, largely because they never stopped coming for the public schools. They will use radicalized Christian religion as their primary artillery. Last week, the Supreme Court opened up the wallets of Maine taxpayers and invited religious schools to dive right in. Would you like to guess what might happen if another Intelligent Design case makes it in front of the current Supreme Court majority?

… Public education is unconstitutional because it is insufficiently theocratic. An interesting legal theory that is coming soon to a Supreme Court near you.

I Suppose This Is a Hobby

I retired almost thirteen years ago and have rarely thought about getting a job, even a part-time job, since. But it appears I’ve settled on a hobby, without really intending to. This blog has been part of it for twelve years. Another part is a philosophical “book” about perspective (or points of view) I’ve been “working on” for almost ten years. The other part is lots and lots of comments I’ve spread around the internet.

Many of these comments have been deposited at an interesting site called Three Quarks Daily. It’s mainly an aggregator. They link to articles of intellectual interest at other sites. They also have a Monday Magazine, which features original content.

Untitled

The site is free, although a “one-time donation” or “small monthly payment” makes advertisements disappear. Most of us don’t need more to read on the internet or elsewhere, but I highly recommend 3 Quarks Daily.

What led me to writing this post is that I spent part of last night and most of this afternoon responding to four articles at 3 Quarks (which is more than average output for me).

The first was a response to a Guardian article called “The Federal Reserve Says Its Remedies For Inflation ‘Will Cause Pain’, But To Whom?”. At 3 Quarks, I merely quoted some of Sen. Elizabeth Warren’s recent dialogue with the Fed Chairman, Jerome Powell:

Warren asked Powell if Fed rate increases will lower gas prices, which have hit record highs this month. “I would not think so,” Powell said.

Warren asked if grocery prices will go down because of the Fed’s war on inflation. “I wouldn’t say so, no,” Powell said.

“Rate hikes won’t make Putin turn his tanks around and leave Ukraine,” Warren said, adding that they won’t break up corporate monopolies or stop Covid-19.

“Inflation is like an illness and the medicine needs to be tailored to the specific problem, otherwise you could make things a lot worse,” Warren said. ” … the Fed can slow demand by getting a lot of people fired and making families poorer.”

The Massachusetts Democrat urged Powell to proceed cautiously with further rate hikes.: “You know what’s worse than high inflation and low unemployment? It’s high inflation with a recession and millions of people out of work”.

Next was a response to an article at Aeon called “Armchair science: Thought experiments played a crucial role in the history of science. But do they tell us anything about the real world?”

I disagreed with one of the philosophers quoted in the article, James Robert Brown of the University of Toronto. He said he was extremely impressed with Galileo’s thoughts regarding falling objects. 

Suppose we connect the two objects [a musket-ball and a heavier cannonball] with a short, stiff rod. One could argue that the lighter musket-ball acts as a brake on the heavier cannonball, slowing its fall. Then again, one could also argue that the composite body, whose weight is equal to the sum of the two original bodies, must fall faster than either body alone. This is obviously a contradiction. The only solution, Galileo says, is that all bodies fall at the same rate, independent of their weight.

“I fell out of my chair when I heard it,” Brown said. ‘”It was the most wonderful intellectual experience perhaps of my entire life.” Brown went on to become a leading authority on thought experiments.

At Three Quarks Daily, I expressed skepticism, concluding that Galileo’s thought experiments didn’t prove anything except that it was worth getting empirical evidence on the question (trying it out) before reaching a conclusion.

Number 3 concerned an original article at Three Quarks written by Thomas R. Wells, a “British academic philosopher living in the Netherlands”. He called his article “We Should Fix Climate Change, But We Should Not Regret It”.

Mr. Wells argues that the climate crisis began with the Industrial Revolution, but we shouldn’t regret the Industrial Revolution because of what it’s led to. I’m not sure any sane environmentalists actually regret the Industrial Revolution. I left the fifth comment:

We can agree the Industrial Revolution was a good thing, while also noting that climate change [is] the result of regrettable choices we made along the way, not by starting the Industrial Revolution, but by ignoring our effect on the climate, even though scientists discovered that effect decades ago.

We could have made this a “vastly better world for most people” without making it a vastly worse world for so many other living things. Not exactly coining a phrase, but other living things matter.

Finally, another Three Quarks contributor, Mike Bendzela, who I believe teaches in the English department at the University of South Maine, published an article today called “Abort All Thought That Life Begins”. He argues that there is no such thing as the “beginning of life”. Life has always developed as a gradual process without any particular beginning (its ending isn’t always clear either).

As you might expect, this article has elicited a variety of comments (they’re still landing). I responded to another reader this way:

Justice Blackmun, who wrote the Roe v Wade opinion, shared an internal memo with the other justices before the majority decision was published. He wrote “You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” [https://en.wikipedia.org/wi…]

… I believe the author … is making the point that any decision regarding a moment when there is “conversion from not human to human” is somewhat (or totally) arbitrary. I’d say the transition from “not human enough” to “human enough” is a matter of convention.

That’s how the five Republicans and two Democrats on the Court ruled in 1973 — they came to a nuanced agreement based on trimesters and viability. It was a reasonable compromise that worked well enough for 50 years, until the Court was corruptly (after Senatorial hypocrisy and lies told to the Judiciary committee) taken over by ideologues.

I see that the person I responded to has now responded to me. Once more unto the breach…

I’ve never read all of Roe v. Wade or the dissents, and I know some lawyers and scholars who oppose forced births (women who get pregnant being compelled by the state to eventually give birth) disagree with the Roe majority’s legal reasoning.

However, as others have pointed out, the 9th Amendment to the Constitution says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”. Even though the Constitution doesn’t mention a right to privacy, or pregnancy or abortion for that matter, I agree with Tim Quick above that we all have certain fundamental rights, including the ones he mentioned that justify women and their doctors sometimes ending a pregnancy without interference from the government.

If topics like these interest you, I recommend Three Quarks Daily. You don’t have to read the comments.

The Insurrection Was Only One Step in the Attempted Coup

The radical reactionaries on the Supreme Court didn’t get a chance to overturn the 2020 election, although given how five Republican justices handed the presidency to George Bush in 2000, they might have been willing. 

It’s important to distinguish between the attempted coup and the January 6th insurrection. Sidney Blumenthal, a former Clinton advisor, explained the distinction on January 6, 2022, for The Guardian:

The insurrection was not the coup itself. It was staged as the coup was failing. The insurrection and the coup were distinct, but the insurrection emerged from the coup. It has been a common conceptual error to consider the insurrection alone to be the coup. The coup, however, was an elaborate plot developed over months to claim that the votes in the key swing states were fraudulent, for Mike Pence as the presiding officer of the joint session of the Congress to declare on that basis that the certification of the presidential election on the constitutionally mandated date could not be done, to force that day to pass into a twilight zone of irresolution, for House Republicans to hold the floor brandishing the endless claims of fraud, to move the decision to the safe harbor of the House of Representatives, voting by states, with a majority of 26 controlled by the Republican party, to deny both the popular vote and the electoral college vote to retain T____ in office, for protests to breakout at federal buildings, and for the president to invoke the Insurrection Act to impose law and order.

Presumably, any gesture to forestall the coup by the joint chiefs would be communicated at once to T____ from his agent, Kash Patel, a former aide to far-right representative Devin Nunes), sworn enemy of the “Deep State”, embedded as chief of staff to the acting secretary of defense, and presidential orders would be issued to countermand. The rally on 6 January – “will be wild”, T____ promised – was a last-ditch attempt to intimidate the vice-president with the threat of violence into fulfilling his indispensable role in the coup, to lend support to the Republicans objecting to certification, and to delay the proceedings into a constitutional no man’s land. …

The insurrection may also have been intended to provide a pretext for precipitating clashes with anti-T____ demonstrators, following the example of the street violence and multiple knife stabbings perpetrated in Washington by the neo-Nazi Proud Boys chanting “1776” on 12 December, and which would then be an excuse for invoking the Insurrection Act. In the criminal contempt citation of Meadows for his refusal to testify before the select committee investigating the US Capitol attack, the committee noted that Meadows sent an email the day before the assault to an unnamed individual “that the national guard would be present to ‘protect pro-T____ people’ and that many more would be available on standby”. From whom would “pro-T____ people” be protected?

In the midst of the attack, the House minority leader, Kevin McCarthy, managed to reach a preoccupied T____, who was riveted viewing the unfolding chaos on television at the White House, closely monitoring whether the coup would finally succeed, taking phone calls from Jim Jordan and a host of collaborators, and fending off urgent pleas to call it off … T____’s first reply to McCarthy was to repeat “the falsehood that it was antifa that had breached the Capitol”, according to the Republican representative Jaime Herrera Beutler.

McCarthy argued: “It’s not Antifa, it’s Maga. I know. I was there.” “Well, Kevin,” said T____, “I guess these people are more upset about the election than you are.” “Who the fuck do you think you are talking to?” McCarthy inquired in an uncharacteristic display of testosterone that soon was replaced with his regular order of servility …. The absence of antifa, and McCarthy’s refusal in the heat of the moment to lend credence to the phantom menace, may have condemned any false-flag thought of invoking the Insurrection Act. Meanwhile, the bayonet-ready national guard idly awaited orders for hours to quell the actual insurrection. …

The coup was hardly T____’s full-blown brainchild. It was packaged for him. It was adapted, enhanced and intensified from longstanding Republican strategies for voter suppression. The coup was a variation on the theme from a well-worn playbook. T____ eagerly grasped for the plan handed to him.

More than a year before the election of 2020, in August 2019, conservative operatives in closely connected rightwing organizations began preparing a strategy for disputing election results. A “Political Process Working Group” focused on “election law and ballot integrity” was launched by Lisa Nelson, the CEO of the American Legislative Exchange Council (Alec), heavily funded by the Koch brothers’ dark money syndicate, the Donors Trust. …

The investigative reporter Anne Nelson, in her book Shadow Network: Media, Money, and the Secret Hub of the Radical Right, describes the CNP as a nexus of “the manpower and media of the Christian right with the finances of western plutocrats and the strategy of rightwing Republican political operatives”.

A board member of the CNP, Cleta Mitchell, a lawyer at the center of a host of rightwing groups, assumed control over the Alec-originated project and moved it forward. Mitchell was instrumental in devising the blueprint for the coup. On 10 December 2020, 65 leading members of the CNP signed a succinct step-by-step summary of the completely elaborated plot that went little noticed except on the coup-friendly rightwing website Gateway Pundit:

The evidence overwhelmingly shows officials in key battleground states – as the result of a coordinated pressure campaign by Democrats and allied groups – violated the constitution, state and federal law in changing mail-in voting rules that resulted in unlawful and invalid certifications of Biden victories. There is no doubt President D____ J T____ is the lawful winner of the presidential election. Joe Biden is not president-elect. Accordingly, state legislatures in the battleground states of Pennsylvania, Arizona, Georgia, Wisconsin, Nevada and Michigan should exercise their plenary power under the constitution and appoint clean slates of electors to the electoral college to support President T____. Similarly, both the House and Senate should accept only these clean electoral college slates and object to and reject any competing slates in favor of Vice-President Biden from these states. Conservative leaders and groups should begin mobilizing immediately to contact their state legislators, as well as their representatives in the House and Senate, to demand that clean slates of electors be appointed in the manner laid out in the US constitution.

Mitchell was by then a T____ campaign legal adviser, with direct access to T____ and working on the Georgia challenge to the results.

Why the Court Has Gone Rogue and Ideas on How to Fix It

Five justices nominated by Republican presidents (and two nominated by Democrats) passed Roe v. Wade in 1973. Four justices nominated by Republicans (and one nominated by a Democrat) upheld Roe v. Wade with some revisions in 1992.

That didn’t happen this week. David Roberts (of the Volts newsletter) helps explain how the Supreme Court got filled up with right-wing fanatics:

If you read about the birth of the Federalist Society, there’s a kind of theme in the background that’s worth elevating. Conservatives’ problem over the years is that they would nominate judges & then be “betrayed” as judges drifted left (or just moderate). Souter, Kennedy, Blackmun etc.

Conservatives have lots of ways to explain this to themselves. Being exposed to liberals corrupts the bodily fluids! Etc. But the most most sensible & obvious explanation is that decent people, once they survey the evidence & arguments, come out in a decent/compassionate/liberal place.

Now, noticing that the smart, decent people they nominated kept coming to compassionate/moderate conclusions, they did NOT conclude, “gosh, maybe we should be more compassionate/moderate, since that’s where good-faith study of the evidence seems to lead!”

Instead, they decided they needed a cult-like organization where they could create hyper-ideological zealots, people so committed to reactionary conclusions that NO amount of exposure to evidence or simple humanity could ever change their minds: thus, Federalist Society.

Thus we have the striking situation we get today: liberals looking for judges can pull them from anywhere. But conservatives looking for judges can ONLY find them in this creepy billionaire-funded hothouse fringe cult full of ditto-brained mediocrities.

It’s really a great illustration that if you want someone truly, consistently reactionary, you need to find a particular dysfunctional personality type that can selectively ignore evidence, ignore nuance & context, ignore simple humanity & human need. You need a zealot.

That’s why the conservatives on SCOTUS are, in addition to being so horrible on the law, just kind of weird & creepy — intellectually mediocre but hyper-prickly & vain. They were forged in the Federalist Society laboratory. That does not produce normal, healthy people.

Unquote.

Jamelle Bouie of The New York Times has some ideas about fixing the Court:

The Supreme Court does not exist above the constitutional system.

It can shape the constitutional order, it can say what the Constitution means, but it cannot shield itself from the power of the other branches. The Supreme Court can be checked and the Supreme Court can be balanced.

It is tempting, in the immediate wake of the court’s ruling in Dobbs v. Jackson Women’s Health, to say that there’s nothing to be done about the reactionary majority on the court. But that’s just not true. The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court.

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

In the face of a reckless, reactionary and power-hungry court, Congress has options. The problem is politics. Despite the arrogance of the current Supreme Court — despite its almost total lack of democratic legitimacy — there is little to no appetite within the Democratic Party for a fight over the nature of the court and its place in our constitutional system. For many Democrats, President Roosevelt’s attempt to expand the size of the court is less a triumph than a cautionary tale — a testament to the limits of presidential leadership and presidential power.

But Roosevelt did eventually get a Supreme Court that allowed most of the New Deal to stand. The threat worked. The court was humbled.

It will take time to build the kind of power and consensus needed to make significant changes to the court. But even the work of amassing that power and putting that consensus together can stand as a credible threat to a Supreme Court that has acted, under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.

The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

Unquote.

One way to begin is for anybody who had trouble voting for Barack Obama, Hillary Clinton or Joe Biden in a general election to recognize that the Democratic Party, lame as it often is, is the only institution that stands between us and living in an anti-democratic, Christianity-centered, climate crisis-denying, anti-woman, anti-gay, reactionary dystopia.

We also need to exert pressure on the aged leaders of the party to face reality. This isn’t 1991 anymore.

Use what’s left of our democracy or lose it.