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.

Are We Near the Bottom Yet?

[Copied from the blog I’m intending to update in the future: An Ingenious Device for Avoiding Thought:]

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.

Selected Thoughts on Recent Events

Once upon a time, it was common to see billboards and bumper stickers calling for Earl Warren, Chief Justice of the Supreme Court, to be impeached. Right-wing organizations like the John Birch Society had two principal complaints against him, as set forth in a “wanted” poster from 1958:

Warren is a rabid agitator for compulsory racial mongrelization and has handed down various decisions compelling whites to mix with Negroes in the schools, public housing, in restaurants and in public bathing facilities. He is known to work closely with the N.A.A.C.P. [the National Association for the Advancement of Colored People] and favors the use of force and coercian [sic] to compel white school children to mingle intimately with Negroes.

Warren has been accused of giving aid and comfort to the Communist Party on frequent occasions. He is guilty of inciting riot, disorder and anarchy in Little Rock and elsewhere in his attempts to impose judicial tyranny upon white Southerners. He has illegally transformed the Supreme Court into a Soviet-type politburo with power over the Congress and over the various state governments.

Fortunately, Chief Justice Warren was never in danger of being impeached (although he may have been in danger of being shot). In fact, only one Supreme Court Justice has ever been impeached. That was Samuel Chase back in 1804. The Wikipedia summary says he was impeached for “political bias and arbitrary rulings, promoting a partisan political agenda on the bench”. Sound familiar? The Senate acquitted Justice Chase and since then making ridiculous decisions based on one’s political ideology hasn’t been considered grounds for impeachment. Federal officials generally need to be accused of criminal activity before the House of Representatives will impeach them.

Nevertheless, if “political bias and arbitrary rulings” and “promoting a partisan political on the bench” were ever grounds for impeachment, Justices Scalia, Alito and Thomas would be prime candidates. The three of them were willing to cripple the Affordable Care Act in 34 states because of a single poorly-written phrase, even though it’s standard procedure for the Court to interpret the language in complex laws based on context and legislative intent. Sensible people understood all along that Congress meant to offer subsidies to low-income people in all fifty states. It was only right-wing ideologues like Scalia, Alito and Thomas who thought or claimed to think otherwise.They saw a way to weaken the law and were willing to disgrace themselves in order to purposefully misinterpret it.

If you want to understand the Court’s decision in the Affordable Care Act case, there is a helpful summary on the Court’s website. They call it a “syllabus” and it’s only five pages long. The majority opinion begins at page 6 of the same PDF document and Scalia’s bizarre dissent begins at page 27.

If Scalia were really as angry as his overheated language implies, he would have dropped dead a few pages into his opinion. Maybe next time.

Moving on to other recent events, I’m trying to understand why some people are opposed to gay marriage because they think it will infringe on their own religious liberties. That may be a future topic. Meanwhile, here are two excellent paragraphs from an article by Andrew O’Hehir called “America Is Changing, and Marriage Equality Is a Huge Victory — But We Need To Go So Much Further”:

An entire strain of right-wing commentators, exemplified by Ann Coulter and Bill O’Reilly, have built careers on casting the left as treasonous America-haters who piss on the flag at every opportunity. This is a moment for people who believe in social justice to accentuate the positive, for damn sure. Beyond that, it’s also a moment that makes clear who really hates America – who hates the democratic and egalitarian potential of America, the America that does not quite exist but is struggling to become real. The America that the Coulter-O’Reilly caste claims to love does not exist either, but it never did and never will; it’s not just 1954 but a thoroughly fictional version of 1954, in which women and African-Americans were content to live in subjugation and Latinos, Muslims and LGBT people were invisible….

It’s essentially tragic that so many people feel themselves under attack from the expanded application of basic principles of fairness and justice. It cannot be a good thing that millions of Americans are so imprisoned by toxic ideology that they are unable to share in this collective celebration of hope and happiness, that they seem so determined to wall themselves up in mental ghettoes of intolerance, and that they seem devoted to waging endless rearguard combat in defense of “traditional values” rooted in a constricted understanding of God and the Christian faith and America. As the congregants of Emanuel African Methodist Episcopal Church told us a week ago in such moving and memorable fashion, love is stronger than hate. Many people in our country who call themselves Christians would do well to reflect on that.

More, but not a lot more, here.

Money and Politicians, Plus Judges

ThinkProgress reports that the Supreme Court sensibly ruled, in a 5-4 decision, that a state can restrict lawyers’ campaign contributions to judges. Chief Justice Roberts explained why:

States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or control him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

So a majority of the Court agreed that it’s important for judges not to be influenced by campaign contributions, because judges are expected to serve the public good. Does that mean it’s acceptable for politicians to be influenced by campaign contributions, since they’re expected to serve the interests of whoever gives them money?

The obvious problem with Roberts’s explanation is that politicians should serve the public good as much as judges. A President is supposed to serve the national interest. Senators are supposed to serve the national interest and the interests of their particular states. Politicians are only supposed to do little favors for people who give them money. Otherwise, we’d say the politicians were for sale!

After all, we vote anonymously so that nobody, not even the candidates, know who we voted for. That makes sense, because how a particular person voted shouldn’t matter to a politician who represents “the people”.

But doesn’t that suggest that campaign contributions (assuming they’re legal at all) should be anonymous too? Politicians shouldn’t know who gave them money or spent money on their behalf, because they’re not supposed to be influenced by such things. They’re supposed to make their decisions on the merits, not reward the rich people or groups who paid for their campaigns. Nor should politicians be able to extort contributions by threatening anyone.

Anonymous campaign funding was the subject of a 2004 book called “Voting With Dollars” written by two law professors. They argued that all voters should be given government-financed “gift cards” that could only be used to finance presidential campaigns. Last year, two political scientists called for making all campaign contributions anonymous, even those made by major donors:

Indeed, if we think about all the ways transparency helps contributors and candidates put pressure upon each other, it is clear that reporting contributions can make matters worse. Suppose, then, that we turned out the lights? What if we let Adelson and Shaun McCutcheon spend their money on politics but not take credit for their “generosity”? What if we made all campaign contributions and independent expenditures anonymous — and made sure they stayed anonymous?

I don’t know if it’s possible to design a system that would guarantee anonymity. If people contributed to a general fund from which payments were made to their candidates of choice, it would be difficult for the contributors to see that they’d made a specific contribution to a particular candidate without their having the ability to share that information with the candidate in question. Maybe it would be enough to make it illegal to communicate the source of donations or “independent” spending, as the political science professors suggest.  

In addition to reducing the number of favors politicians did for their major contributors, anonymity would theoretically reduce the amount of money in politics too. Presumably, some of the wealthy would limit their spending if they couldn’t expect something in return. Of course, even anonymous contributions won’t solve the Big Money problem. Fixing that will require a majority on the Supreme Court that doesn’t equate unlimited political spending with free speech.

Justice Ginsburg Shoots Down a Dumb Conservative Argument

Our era’s radical Republicans are willing to take a conservative position when it suits them. Thus, during the recent Supreme Court argument regarding same-sex marriage, the right-wingers on the Court pointed out that marriage has involved a man and a woman for thousands of years. From ThinkProgress:

The Court’s conservatives [sic] fixated upon their belief that same-sex marriages are a very new institution. “Every definition [of marriage] I looked up prior to about a dozen years ago,” Chief Justice John Roberts claimed, limited marriages to opposite-sex couples. Advocates for equality, Roberts continued, are “seeking to change what the institution is.” Meanwhile, Justice Samuel Alito argued that even “ancient Greece,” a society he perceived as welcoming to same-sex relationships, did not permit same-sex marriage. Justice Antonin Scalia insisted that “for millennia, not a single society” supported marriage equality.

A natural response would have been: “Of course, and now we’re changing that. Sometimes we make progress”. Justice Ginsburg, however, pointed out that for thousands of years marriage was legally defined as a relationship between a dominant man and a subordinate woman. A further ThinkProgress article on the subject quotes the 18th century legal authority Sir William Blackstone:

…the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.

Traditionally, wives were subservient to their husbands. Being married wasn’t a relationship that two men or two women would ordinarily enter into. Today, however, the law considers marriage to be a relationship between equals. Since marriage is now egalitarian from a legal perspective, it makes sense for anyone who wants an equal partner, whether that partner is of the opposite or same sex, to want to be married. Since there are benefits to being married, and since being able to procreate isn’t a requirement, justice dictates that any two adults who want to get married should be allowed to.