How It Is and How It Got This Way (26 Days)

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Our new Supreme Court Justice, Bart O’Kavanaugh, the noted liar, aka the Keg Meister, took a hard line in his first appearance with the court. He said an immigrant who committed a minor crime thirty years ago and did his time is still subject to being locked up. Even his right-wing colleague, Neil Gorsuch, didn’t go that far:

The question in the case was whether the federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.

“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.

But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.

Now we know O’Kavanaugh will take bad behavior seriously even if it happened thirty years ago, as long as it allows him to make life difficult for an immigrant. 

For more ugly truths about the Supreme Court, “How It Is and How It Got This Way (27 Days)”, go here:  An Ingenious Device for Avoiding Thought.

How It Is and How It Got This Way (27 Days)

Most of us tend to give people the benefit of the doubt. We expect the average person to behave properly. Not perfectly, but generally to follow the rules of society. To help those in distress, to keep promises, to tell the truth. That’s why we’re willing to ask people for help instead of fearing they’ll take advantage of us. It’s why we take promises seriously. It’s why we pay attention to what other people say.

Then something like the Kavanaugh nomination comes along. Even after we’ve been exposed to dirty politics repeatedly, we still find it hard to believe that people — such as members of the Senate — who claim to value truth and justice — especially people who are viewed as “moderates” — will ignore those values. Some do rise to the occasion. Too often, we’re disappointed once again.

I kept hoping that two or more Republican senators would vote “no”. It’s still hard to believe that only one decided not to vote “yes”. I’m not crazy, so I wasn’t sure we would win. But I still thought there was a possibility as various Republicans expressed their “concerns”. I thought maybe they’d give each other courage. 

It’s still hard to accept that some politicians lie and otherwise practice bad faith so easily and so frequently. I blogged about a long article a few days ago that helped me understand how they’re able to justify their behavior to themselves:

If you believe, as my old friends now believe, that Poland will be better off if it is ruled by people who deserve to rule—because they loudly proclaim a certain kind of patriotism, because they are loyal to the party leader, or because they are … a “better sort of Pole”—then a one-party state is actually more fair than a competitive democracy. Why should different parties be allowed to compete on an even playing field if only one of them has the moral right to form the government? Why should businesses be allowed to compete in a free market if only some of them are loyal to the party and therefore deserving of wealth?

Why shouldn’t you lie in order to put the members of your group in power? Since the people on your side or in your group deserve to be in charge and make the important decisions, why shouldn’t you lie in order to get on the Supreme Court? Or vote “yes” to put that liar on the Supreme Court for the rest of his life?

Garrett Epps writes a “Requiem for the Supreme Court”:

[The Supreme Court’s] decisions were [often] controversial. Many people considered many of them wrong. But this was the nation’s Court; its decisions were rooted in the Constitution and in a shared interest in national unity.

Throughout all of this, Democratic and Republican appointees on the Court clashed, crossed, and formed coalitions. Neither those who praised it nor those who cursed it regarded the Court as the instrument of party politics.

But that idea began to fray…

One party made the Supreme Court a partisan issue. First Richard Nixon and then Ronald Reagan made attacks on the Court part of Republican Party dogma….But I think no fair-minded person could deny that a major barrier was crossed in 1991 when a Republican president, for political reasons, appointed a justice [Clarence Thomas] who was manifestly unqualified for the office, and who faced numerous, credible claims of sexual misbehavior as a government official. It was hard to watch the nominee testify in October 1991 without concluding that Anita Hill had told the truth and that Thomas had lied. But the administration pushed ahead regardless. This was the first major step over a dangerous threshold.

The next step came in 2000, when five Republican appointees on the Court extended its authority to decide a national election, in defiance of federal statutes, the Constitution’s text, and their own frequently expressed pieties about “our federalism.” The Court has aggressively made itself part of partisan politics, but even then, some of the justices who dissented were Republican appointees.

Partisanship sputtered for the next decade and a half. John Roberts was confirmed as chief justice with the votes of 22 Democrats––half of the party’s Senate caucus. Samuel Alito was the object of an attempted filibuster by Democrats, but was still confirmed with four Democratic votes. Sonia Sotomayor won nine Republican votes; Elena Kagan got five Republican votes and lost one Democratic vote. Justice Anthony Kennedy continued to move back and forth within the Court across partisan lines.

As the new Court settled in, people began to wonder whether the wounds of 2000 might be closing.

Then, in 2016, Justice Antonin Scalia died.

President Barack Obama, facing a Republican Senate, carefully nominated a moderate whom even Senator Orrin Hatch had previously designated as acceptable to both sides. But then the rules changed. Scalia’s seat, Senate Majority Leader Mitch McConnell said, would not be filled, no matter what. Republicans had a majority in the Senate and could use it for any purpose they wished—including making the Supreme Court seat a plum partisan patronage job to be filled after the next presidential election. Republican nominee Donald Trump assured Republican voters that he would appoint justices who would “automatically” overturn Roe v. Wade. To make this clearer, he released a short list of nominees, in effect putting their names on the presidential ballot beside his. Another threshold was crossed: a Court seat was a partisan prize, its holders subject to popular vote.

That brings us to the last few weeks in Washington, when the Senate Judiciary Committee met under the pretext that it would listen to testimony from an ordinary American, Christine Blasey Ford….The debate and the vote that followed were not about the Court, not about the law; they were about the Republican Party. They were about teaching the rest of us that we cannot refuse what Trump and McConnell want. They were a demonstration that in the new order there is no individual, no norm, no institution not subject to the control of the ruling party.

Brian Beutler analyzes “The Trumpification of the Supreme Court”:

Even before he stood accused of sexual assault, Kavanaugh was a totem for the forces of dishonesty and bad faith, angling to deceive his way into power by hiding and lying about his career and his agenda.

Kavanaugh has been systematically misleading the Senate since 2004. Rather than own up to his history as a partisan activist lawyer, he disguised his life’s work with spin and outright lies. He disclaimed his role, as an associate White House counsel, in helping to confirm some of the most controversial circuit court judges on the bench. He feigned ignorance of the lawless torture and warrantless wiretapping policies of the Bush administration, and then counted on Republicans in the Senate and the White House to conceal his complete record. He knowingly trafficked in stolen Senate Democratic records to help coach Bush judicial nominees, and then lied about it, concocting the flimsiest of excuses, and offering the Democrats whose documents were stolen not a single word of remorse.

Despite this background, he laughably insisted to the Senate in 2004 that his “background has not been in partisan politics.”

Kavanugh’s appointment is thus an extension of Trump’s contempt for U.S. governing institutions as anything other than instruments of raw partisan power.

Erwin Chemerinsky describes “A Very Tarnished Court”:

Conservatives [have fulfilled] a quest that began with Richard Nixon’s campaign for president in 1968 and intensified during Ronald Reagan’s presidency: putting a staunch conservative majority on the Supreme Court. But the way that they have accomplished this has greatly tarnished the Court, perhaps irreparably. It is impossible to know the long-term consequences of this, but the Court and how it is perceived will never be the same.

….This will [be] the most conservative Court since the mid-1930s, with five justices at the far right of the political spectrum. No longer will there be Republican appointees like John Paul Stevens or David Souter, or even a moderate conservative like Lewis Powell, Sandra Day O’Connor or Anthony Kennedy.

What is stunning is that each of the five conservative justices—Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh—came on to the Court in a manner that lacks legitimacy. Each is a disturbing story, but even worse, cumulatively they make it clear that the current Court is little more than an extension of Republican power plays in a way that never has occurred in American history.

He then recounts the ugly events that put Thomas, Roberts, Alito, Gorsuch and now Kavanaugh on the court. He concludes:

Any one of these events would be a hit on the Court’s legitimacy. But to have the entire majority of the Court there only because of shameful behavior inevitably will tarnish the Court.

It is unclear at this moment how it will matter that the Court will be clearly perceived as an extension of the Republican Party. Maybe it will lead to a crisis of legitimacy for the Court, as occurred in the mid-1930s. Perhaps at some point it will lead to open defiance of the Court. Maybe it will cause the Democrats to try to increase the size of the Court if they have control of the presidency and Congress after the November 2020 elections. [Note: the Constitution doesn’t say the Court should have nine members. It had 10 in 1863.]

The only thing that is certain is that conservatives will gain control of the Court as they have long desired—in the process, irreparably hurting the institution by the way they have accomplished this.

Political power grows out of the barrel of a gun. It also grows from the ideas of defunct economists. In the United States, for now, it still grows out of ballots cast and properly counted. 

The next election is 27 days away.

Are We Near the Bottom Yet?

A minority President who only wants to represent his supporters has nominated a judge to the Supreme Court who has promised to take his revenge on the liberals and progressives he accuses of conspiring to fight his nomination. I bet no judicial nominee in recent American history has displayed a similar lack of judicial temperament during his confirmation hearings. Judge Kavanaugh’s lies and falsehoods may also have set a record.

This means we now have an unfit President who tells lie after lie selecting an unfit judge who won’t tell the truth about his life or his beliefs. We should all believe Kavanaugh, however, when he says he intends to have his revenge. Meanwhile, the Republican majority insists on treating a glorified job interview as if it’s a criminal trial where the defendant must be found guilty beyond a reasonable doubt.

Democrats raised relatively few objections when this President nominated a staunch reactionary to the Supreme Court last year. Justice Neil Gorsuch now occupies a seat the Republicans successfully held open for a year, denying Obama’s highly respected nominee, Merrick Garland, a hearing. No women accused Gorsuch of assaulting or otherwise mistreating them. Yet the Republicans blame the Democrats when women do come forward to complain of Kavanaugh’s behavior. Are we near the bottom yet?

For further reading:

Shamus Khan, professor of sociology at Columbia University, explains that Kavanaugh is lying because of his upbringing [The Washington Post]. 

Alexandra Petri asks a rhetorical question in capital letters: “HOW DARE YOU DO THIS TO BRETT KAVANAUGH?” [The Washington Post].

Megan Garber discusses the “pernicious double standards” that protect the privileged from the consequences of their drinking and bad behavior [The Atlantic].

Nathan Robinson analyzes some of Kavanaugh’s testimony in detail and concludes that “this man shouldn’t serve another day as any kind of judge” [Current Affairs]. 

Jennifer Rubin, a conservative columnist, argues that “if we want to protect the Supreme Court’s integrity, Kavanaugh should not be on it [The Washington Post].

Eliot Cohen, professor of strategic studies at Johns Hopkins University, complains that his Republican Party has abandoned conservatism and that’s unfortunate for all of us [The Atlantic].

Even the editors of America, the Jesuit review, explain why the Kavanaugh nomination should be withdrawn [America]:

We continue to support the nomination of judges [who support a “textualist” interpretation of the Constitution]—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

November 6th, the date of the mid-term election, is only 37 days away. There may still be time to register to vote. You might be able to vote by mail. If we are going to have any checks and balances on the current administration, we need to elect Democrats up and down the ballot.

Okay, one more:

James Fallows explains what the President and Kavanaugh have in common. It isn’t pretty [The Atlantic].

This Week’s Selective Political Roundup

Jonathan Chait of New York Magazine presents two brief accounts of Republican hypocrisy (there’s a little-known but important fact: Republican politicians are required to solemnly recite a Hypocritical Oath before receiving any financial support from the party).

First, Congressman Paul Ryan has said that he wants to simplify the tax code and isn’t especially interested in cutting taxes for the wealthy.  When asked why he didn’t support a proposal made by a Republican congressman a few years ago that would have done exactly that, namely, eliminate loopholes and deductions without favoring one group of taxpayers over another, he’s unable to come up with an answer. All he can say is that it’s “ridiculous” to worry about which taxpayers would benefit the most from tax reform. It must, therefore, be mere coincidence that the reforms he favors would disproportionately benefit the wealthy (“No Tax Reforms Unless Rich People Get Paid“).

Second, Republican Senators who previously claimed it’s against the rules or common practice to confirm a Supreme Court nominee in the last year of a President’s term are now saying this last-year restriction only applies if Hillary Clinton (or Bernie Sanders) wins in November. If one of the Democrats is elected President, it will be perfectly fine to approve Obama’s nominee this year. Their fear, of course, is that President Clinton or Sanders would nominate someone more liberal than Merrick Garland, Obama’s nominee. Thus, “the people” should have a role in deciding who gets on the Supreme Court, but the people who vote in November should only have a role if they elect a Republican President. Otherwise, the people who elected Obama in 2012 should have their say after all. Yes, they do indeed swear a Hypocritical Oath (“[Republicans] Demand Supreme Court Vacancy Be Filled by Next President, Unless That President Is Hillary Clinton“).

Meanwhile, Matthew Yglesias of Vox says “There’s a Big Problem with Sanders’s Free College Plan“. “Free college” has been one of Senator Sanders’s most popular positions. According to the campaign’s site:

The Sanders plan would make tuition free at public colleges and universities throughout the country…The cost of this … plan is fully paid for by imposing a tax of a fraction of a percent on Wall Street speculators [i.e. on transactions in the stock and bond markets].

Yglesias, however, provides a link to a more detailed “Summary of Sen. Sanders’ College for All Act” on his Senate webpage: 

This legislation would provide $47 billion per year to states to eliminate undergraduate tuition and fees at public colleges and universities.

Today, total tuition at public colleges and universities amounts to about $70 billion per year. Under the College for All Act, the federal government would cover 67% of this cost, while the states would be responsible for the remaining 33% of the cost.

To qualify for federal funding, states must meet a number of requirements designed to protect students, ensure quality, and reduce ballooning costs. States will need to maintain spending on their higher education systems, on academic instruction, and on need-based financial aid. In addition, colleges and universities must reduce their reliance on low-paid adjunct faculty.

As Yglesias points out, Sanders is relying on the states, including those that refused to accept Federal money in order to expand Medicaid coverage for the poor, to spend more money on education, even though the same states, usually run by Republican governors and legislators, have been cutting their education budgets. In addition, the public colleges and universities in those states would have to institute other reforms in order for their states to qualify for Federal matching grants.

Free college sounds great, and Senator Sanders has a reputation for brutal honesty, but he isn’t telling his supporters the truth about how difficult it would be to abolish college tuition. In Yglesias’s words: “what Sanders has is a plan for tuition-free college in Vermont and, if he’s lucky, California, but not for the United States of America”.

Lastly, two political science professors have an interesting article in the New York Times called “Clinton’s Bold Vision, Hidden in Plain Sight?“. They argue that Hillary Clinton is a throwback to the days when pragmatic Democrats and Republicans worked together to achieve great things: 

Mrs. Clinton has put forth an ambitious and broadly popular policy agenda: family and medical leave, continued financial reform, improvements in the Affordable Care Act, investments in infrastructure and scientific research, measures to tackle global warming and improve air and water quality, and so on….

A few decades ago, Mrs. Clinton would have been seen as a common political type: an evidence-oriented pragmatist committed to using public authority to solve big problems…. In the middle decades of the 20th century, this pragmatic problem-solving mentality had a prominent place in both parties. Some issues were deeply divisive: labor rights and national health insurance, for example, and civil rights. Nonetheless, a bipartisan governing coalition that included leaders from both business and labor proved remarkably willing to endorse and improve the mixed economy to promote prosperity.

More important, the major policies that this coalition devised deserve credit for some of the greatest achievements of American society, including the nation’s once decisive lead in science and education, its creation of a continent-spanning market linked by transportation and communications, and its pioneering creation of product and environmental regulations that added immensely to Americans’ health and quality of life…. Americans’ income per capita doubled and then more than doubled again, with the gains broadly distributed for most of the era….

Mrs. Clinton is heir to an enormously successful bipartisan governing tradition. Yet this tradition has been disowned by the Republican Party and has lost allure within a significant segment of the Democratic Party; it also runs sharply against the grain of current public sentiments about government and politicians….

In the context of widespread amnesia about what has made America prosper, pragmatism has come to be seen as lacking a clear compass rather than (in the original meaning of the word) focusing on what has actually proved to work in the real world.

Religious Liberty and Same-Sex Sex

Marriage isn’t an obscure practice. I bet you know married people even if you aren’t married yourself. Since marriage (the monogamous kind anyway) has always been defined as a relationship between a man (the husband) and a woman (the wife), it’s understandable that many of us are having trouble with the new definition. 

It’s also understandable that some people, including blinkered members of the Supreme Court, are resisting same-sex marriage, arguing that it’s just too weird or that the Constitution doesn’t require legalizing it (their argument being that “equal protection of the laws” doesn’t necessarily mean equal protection of the laws). 

But there’s another reason being offered against same-sex marriage that I’m having more trouble understanding. Here’s the relevant language from Justice Thomas’s dissent (which begins at page 78 of this file):

… the majority’s decision threatens the religious liberty our Nation has long sought to protect….In our society, marriage is not simply a governmental institution; it is a religious institution as well….Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples….

Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths” …  Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice [pp. 14-15 of the dissent].

Thomas’s concern is that religious liberty includes “freedom of action in matters of religion” and that legalizing same-sex marriage will lead to lots of situations in which people won’t be allowed to practice their religion as they wish. He doesn’t provide any examples, but claims that demands will be made to “participate in and endorse” marriage-related activities to which people object on religious grounds. In support of his position, Thomas refers to the amicus curiae (friend of the court) brief submitted by the Seventh-Day Adventist Church.

The Church anticipates problems of two kinds:

(1) Churches and church-affiliated organizations won’t be eligible for certain benefits if they discriminate against same-sex married couples. For example, church-run adoption agencies might lose their state licenses if they refuse to place children with same-sex couples. Church-run homeless shelters could lose government grants. Religious colleges might lose their accreditation or their access to government financial aid programs. Likewise, individual employees might lose their jobs or be disciplined if they refuse to provide services to same-sex couples.

(2) Individuals will bring lawsuits against churches and church-affiliated organizations that discriminate against such couples, charging illegal discrimination. Religious institutions might be subject to public accommodation laws that require businesses to provide products and services to anyone who can pay. Same-sex couples denied student housing might sue. Employees in same-sex marriages might sue religious organizations in order to keep their jobs.

In these various cases, the Church is arguing that anyone who conscientiously objects to same-sex marriage on religious grounds should have the right to discriminate against same-sex couples. On the face of it, that sounds illegal. But it might not be. An article in The Atlantic explains why:

No law, state or federal, forbids “discrimination” generally. Employers, landlords, and businesses “discriminate” all the time—on the basis of low credit ratings, bad references, and poor employment histories, among other factors. Any type of private discrimination is legal unless a state or federal law specifically forbids it….

Thus, a civil-rights statute has two key parts. The first lays out the traits it governs, the forbidden grounds—for example, … “race, color, religion, sex, or national origin.” To state a claim, plaintiff must show that he or she has been treated less favorably than others who differ in one of the covered traits, and that the unfavorable treatment was because of that trait….

Then the law specifies what activities it covers, and usually offers certain exemptions. For example, … the Fair Housing Act bars a landlord from refusing to rent to anyone because of “race, color, religion, sex, familial status, or national origin.” But it allows religious organizations that own dwellings to favor members of their own sect…

The question, therefore, is where to draw the line between people’s freedom to practice their religion as they see fit and other people’s right to be treated fairly. Religious opponents of same-sex marriage want to draw the line so they can discriminate against same-sex couples in lots of different ways (“we won’t let you attend our college”). Supporters of same-sex marriage want same-sex couples to be treated like other married couples.

Maybe everyone would agree that a minister who thinks same-sex marriage isn’t sacred should not have to officiate at a same-sex wedding. It makes some sense to me that a church-run adoption agency might not want to give a child to a same-sex couple (a Catholic charity in Boston apparently shut down their adoption services to avoid doing that — I’m not endorsing their decision — I’m simply saying it’s understandable from their perspective). But it’s hard to believe there are good religious reasons for the many kinds of discrimination the Seventh Day Adventists and other churches apparently want to practice. 

How can it be against someone’s religion to provide counseling to a same-sex married couple? Or give them food or shelter? Or allow them to attend the college you administer? Or buy flowers or a cake from your shop?

The answer, of course, is that those kinds of discrimination aren’t required by anyone’s religion. In this case, claiming to have religious reasons (or “core religious beliefs”) that justify treating certain people worse than others is a way to attack or renounce their sexual orientation. That’s why the phrase “aid and abet” sometimes appears in discussions of this issue. Opponents don’t want to “aid and abet” what they consider to be deviant sexual behavior, as if that behavior were criminal. They somehow think that acknowledging same-sex marriage or providing aid and comfort to same-sex couples amounts to endorsing same-sex sex.

Certainly, many oppose this evolution in the definition of marriage because it’s strange and new. Following religions that are thousands of years old tends to foster conservatism (the kind that honors tradition, not the fake “conservatism” we hear so much about these days). But the real reason same-sex marriage bothers some people so much is that being in a same-sex marriage is public confirmation that a person has same-sex sex. A person can be gay or a lesbian without announcing that fact to their minister or rabbi, or their college administration, or the staff at their local county clerk’s office. But getting married to someone of the same sex delivers a very clear message. You have the kind of sex that really bothers some people. And you’re planning to have a lot of it for a very long time. You aren’t going through a phase. You aren’t going to change your ways with a bit of counseling. So deal with it.

As a religious person, you can react to this new situation in different ways. You can say “Yuck! I don’t like this at all!” and maybe offer some reasons, religious or otherwise. Or you can mind your own business (“let him who is without sin…”). Or be thankful that more people will be getting married, which is supposed to be a good thing. But you shouldn’t use your religion as an excuse for discrimination. Why make life difficult for people who haven’t done you any harm? Their liberties are just as important as yours.