Republicans are going for a dictatorship

The Thinker by Rodin

Things have been keeping me up at night lately. The latest thing to wake me up in a cold sweat at 4 AM was, of all things, judicial nominations. In case you haven’t noticed, Senate Majority Mitch McConnell has been working at a breakneck pace to put Trump’s judges on the federal bench. It’s pretty much all the Senate does these days.

Presidents of course are supposed to nominate people to the federal bench. It’s generally a good idea for the Senate not to tarry on these nominations as there are plenty of cases that need to be tried and in recent years federal case backlogs have been growing because of many judicial retirements. And that’s because until Trump came along, the Senate wasn’t confirming too many judgeships. Those they were confirming tended to bend toward the right side of the political spectrum.

To give you an idea of how bad it got, at the start of 2015, the last two years of Obama’s second term, there were 45 judicial vacancies. As more judges retired, Obama dutifully nominated 103 candidates, of which the Senate deigned to confirm just 22. During his last two years in office, Obama nominated 76 people. So there were a total of 98 candidates nominated by Obama, only 22 of who were confirmed. 54 nominations were returned. Effectively, less than a quarter of the nominees Obama forwarded to the Senate were confirmed in his last two years.

Obviously, Mitch McConnell was deliberately blocking these nominations, as he blocked Obama’s nomination of Merrick Garland to the Supreme Court. He was waiting for a Republican to win in 2016. Since then unsurprisingly things have picked up. After a slow 2017 where only 18 judges were confirmed (it took a while for Trump to nominate new people), 66 were confirmed in 2018 and through 7 more so far through March 2019. 91 judges that have been confirmed since Trump took office. That’s roughly four times the number that Obama got through in his last two years.

Unsurprisingly, there are no left-of-center justices being nominated or confirmed. Breaking with precedent like Mitch McConnell likes to do, he moved forward nominations that were disapproved by home state senators. Thus in the liberal 2nd Circuit which covers New York and New England, with the elevation of Judge Michael Park to the court, brought the number of Republican judges in the circuit to six. It is expected by the summer Republican judges will control the circuit court, meaning judges who disproportionately don’t have a mindset of the people they serve will be telling them what to do.

This stacking of the courts is having real world effects. Trump has plenty of reason to stack the courts because it is his “get out of jail free” card. He needs these judges to rule in his favor so he suffers no consequences for his many actions. For Republicans, it’s not so much saving Trump they care about as getting conservative judicial decisions. We got a preview of it this week when the U.S. Supreme Court broke with more than forty years of precedent in its Franchise Tax Board of California v. Hyatt decision, which overturned its Nevada v. Hall decision. Basically, the decision invalidates the idea that states have sovereign immunity for suits filed in other states. In our federal system, states are supposed to be sovereign, but not anymore. Justice Breyer basically asserted that this precedent will be used to overturn Roe v. Wade, which rests on a similar assumption.

Toward that end various red states have been chomping at the bits to outlaw abortion. They are competing against each other to come up with the most restrictive anti-abortion law, on the hopes that the Supreme Court will uphold it. Georgia’s recently signed fetal heartbeat law, which outlaws abortion if a fetal heartbeat can be detected (at about the sixth week of pregnancy, when lots of women don’t even know they are pregnant), seemed to be at the top of the heap. But then Alabama outlawed virtually all abortions, including in the case of rape or incest. Its only exception: if the mother’s life is in danger. Georgia’s law would make it a crime for a woman to get an abortion out of state, and with the Hyatt decision it looks like the Supreme Court won’t object. Women who get abortions out of states could effectively become fugitives.

Our nation appears to be on the cusp of becoming a variant of The Handmaid’s Tale. Soon, if some states have their way, an 11-year-old girl raped by her own father will be forced to carry a pregnancy to term and probably care for the child for life too. And just as the Fugitive Slave Act at one time allowed federal marshals to go into free states to return escaped slaves to their masters, it’s more than possible that women who get pregnant in Georgia but get abortions outside of Georgia may be hauled by federal marshals back to Georgia to spend thirty years in prison for their “crime” which was inflicted on them by someone else without their consent. Left off the hook, of course, are the men who got them pregnant in the first place. Women are becoming chattel again, thanks to men like Mitch McConnell.

That’s why I woke up in a cold sweat at 4 AM. By stacking the courts with judges who don’t care about the law or precedent, they are poised to turn our nation into the dictatorship that Donald Trump so desperately wants. Republicans of course are all for all of this. They don’t care about democracy. They don’t even believe in a republic. They simply want to control power now and forever through any means, and they are working the legal channels to legally appoint judges to ensure future judges will always act illegally. Moreover, there’s no clear way outside of revolution for changing this.

We should all be breaking out in cold sweats like me every night.

Righting our Upside Down government

The Thinker by Rodin

Down is the new up. This was honed in last Saturday when the U.S. Senate voted in Brett Kavanaugh as our newest justice, despite multiple credible allegations of sexual assault against him.

The vote was perhaps not surprising as Republicans always put party before country. Had Kavanaugh been defeated or withdrawn, someone of similar far right inclinations would have been voted in instead. Majority Leader Mitch McConnell has now realized his dream of a reliably conservative court, which would have happened anyhow.

We are living in the Upside Down. If you are not familiar with the term, you haven’t seen the Netflix series Stranger Things (terrific series you really should watch anyhow). We have probably been in the Upside Down for a while, but Saturday’s vote literally confirmed it. Republicans have seized the Supreme Court. It is now an officially political wing of the Republican Party.

If there was any doubt, now-Justice Kavanaugh’s most recent testimony in front of the Senate Judiciary Committee proves it. In short, our democracy has been formally hijacked. Our government is no longer credibly run for the benefit of the people. It is now run for the sponsors of the Republican Party, principally corporatists, which amounts to groups of well-moneyed white men, but also a lot of white people feeding on their anxiety about losing privilege. You can see it in the tax cuts they passed which directly passes wealth to their class. The Republican Party is rife with racism and misogyny; indeed these things control it.

Which raises the question: how to we right our Upside Down government? Is it even possible? We’ll have an inkling a month from now after the midterms because right now Republicans control all three branches of government. They have as close to a vice grip on all of them as possible. It will take a mighty wave of Democratic votes to begin to make our government representative of the people again. It’s unclear given the many obstacles put in the way (gerrymandering, voter purges, voter disenfranchisement, voter suppression and special interest money) whether it is possible.

Even if Democrats regain Congress, it’s but the first of many very hard steps that must occur to return to something like normal. It’s increasingly clear to me that for it to happen at all, Democrats must fight dirty like Republicans. And by fighting dirty it’s unclear if they won’t become as corrupt as Republicans in the process.

Unfortunately, there are no fast solutions to this problem. It took nearly forty years of persistence plus huge amounts of money for Republicans to wholly own government. Some biases are inherently baked into our system and are virtually impossible to change. The biggest problem is the U.S. Senate, which is not weighted according to population. Rural states have a disproportionate advantage in the Senate. As long as these states promote conservative values, at best the Senate will always swing between Republican and Democratic control.

So a combination of long-term and short-term strategies is needed. The bottom line is that we must fight like hell for democracy. It is not something we can fix in one, five or even ten years. It’s likely a generational problem. Much of the problem can go away with time as conservative voters literally die out. This is premised though on having a voting system that is fair, and Republicans have done everything possible to tilt it to their advantage.

If you read this blog regularly, some of these suggestions will seem familiar. But it’s quite clear that what we’ve done before simply doesn’t work. We need new tactics:

  • Pack the court. When Democrats control Congress and the presidency again, pack the Supreme Court. There is no constitutional requirement to have only nine justices. It just takes a law. It’s been done before. Given that Republicans would not even consider Obama’s nominee Merrick Garland, at a minimum if Democrats control the Senate they should not allow any subsequent Supreme Court vacancy to be filled until Merrick Garland’s nomination is first considered. I’d add two more justices to the court, conveniently to be nominated by a Democratic president.
  • Call a constitutional convention to reverse Citizens United v. Republicans probably won the trifecta because of this 2010 landmark Supreme Court ruling. It allowed corporations and rich people to make unlimited contributions to political campaigns, and to hide their advocacy under shadowy political action committees. We can count on Congress not to pass such an amendment, since it would not get past a Senate filibuster. A state-driven constitutional convention is scary to many Democrats. It should not be. In this case, 80% of Americans favor overturning this ruling, and that includes a majority of Republicans. A constitutional convention by the states does not enact such an amendment. Rather, if passed at a convention it requires state legislatures to consider it, same as an amendment passed by Congress. It would pass the ¾ threshold easily. This would effectively take corporate money out of the election system (at least at the federal level), promoting a government by the people, instead of corporations. Don’t expect a 5-4 conservative majority Supreme Court to overturn their previous decision. We need a permanent fix and a constitutional amendment is the only remedy.
  • Candidates should run on not accepting corporate and PAC money. Candidates that have done this have enjoyed great success. You would think it would put them at a financial disadvantage, but for most candidates it spurs small dollar donations instead. I live in Massachusetts. Senator Elizabeth Warren (D) has never accepted these donations. Neither has Bernie Sanders (I-VT). Both vote in the people’s interest because they cannot be bribed. If you want to support this cause, an easy way to do it is to join Wolf-PAC, ironically a PAC that exists specifically to help elect candidates who don’t accept corporate and special interest money.
  • Build from the bottom up, as Republican did. Democrats seem to be getting this message. Gerrymandering is done at the state level. So the more Democrats that control state houses and governorships, the more Democrats can either end gerrymandering in their state, or if they must gerrymander, do it for Democratic advantage. Redistricting will occur after the 2020 census. Assuming that census is not biased (which of course Republicans are trying to bias), if Democratic governors and legislators are in place by 2020, those states can affect composition of the U.S. house in the 2020s and beyond.
  • Rebuild the Democratic Party. This is probably the hardest thing to do, as special interests and their money still largely control the party. A party that authentically represents the will of the people should be successful. Progressives must take over the party, hopefully as benignly as possible. Doing so though may be so divisive that it fractures the party, which Republicans would obviously favor. For example, the Democratic Party could have a position that its candidates and the party should not accept PAC and corporate money. Do this and voters will have a clear understanding that the Democratic Party works for them, not the elite.

We need truly impartial justices

The Thinker by Rodin

Ugh! This is an appropriate word to describe yesterday’s dueling testimonies in front of the Senate Judiciary Committee, first by Christine Blasey Ford then by Judge Brett Kavanaugh. Yesterday will seem painfully familiar to those of us who remember Anita Hill’s testimony during Clarence Thomas’s confirmation hearings. Hill claimed that he sexually harassed her when he was in charge of the Equal Employment Opportunity Commission.

Yesterday’s dueling testimonies though were a lot worse. While Anita Hill gave convincing testimony, Blasey Ford gave more convincing and far more damaging testimony. Later, Kavanaugh embarrassed himself by blaming Democrats and various other shadowy boogeymen, or maybe that was boogey-women, for what he said were wholly incorrect allegations. He even cried. He egregiously displayed the exact lack of judicial temperament, sobriety and impartiality that we should expect from a justice.

Of course that probably won’t derail his confirmation, just as Anita Hill’s merely postponed Clarence Thomas’s. Trump sees Kavanaugh’s fighting as a good thing. Republicans on the Senate Judiciary Committee simply want to move his nomination forward, which they did today, when the obvious thing to do was to dig further. Later today, perhaps due to a heated encounter with two women, Arizona Senator Jeff Flake convinced the Senate to wait a week before voting on his final confirmation so the FBI can conduct a quick investigation on these many allegations. That’s a small sign of progress, but one that probably won’t keep him off the Supreme Court.

In Clarence Thomas’s case, there was just one witness’s testimony. While lurid, it was not exactly part of a pattern. That’s not the case with Kavanaugh. Others have come forward and want to testify against him. One even signed a sworn affidavit that Kavanaugh was one of many men waiting outside a room where an inebriated and incapacitated woman was ravaged by many men when he was in college. Kavanaugh’s high school friend Mark Judge apparently liked those boozy times with Brett so much he wrote a book about it. For Kavanaugh to claim as he did yesterday that his drinking was never to excess is just laughable and arguably perjury, given so many people who were there who watched his behavior first hand and will testify otherwise.

You would think that no one would be nominated if they could not demonstrate not just sobriety, but a commitment to impartially interpreting the law. Impartiality would include finding for the defendant or plaintiff even if it contradicted your political leanings. There’s little of this in Kavanaugh’s record. He was picked because he demonstrated a sustained lack of impartiality, coming down repeatedly in a predictably conservative direction. Kavanaugh would not be the first; this tendency applies to nominees from both sides of the aisles. Arguably, Kavanaugh’s nomination is the most egregious case we’ve seen in living memory, sans Robert Bork’s nomination that was wisely rejected in 1987.

The Senate is more inclined to vote for impartial justices when the court’s liberal or conservative balance is not an issue. Curiously, Obama’s nominee Merrick Garland was precisely this sort of nominee, and he won bipartisan praise. Senate Republicans though simply refused to hold hearings. Given Justice Kennedy’s tendency to straddle both sides of the court, more justices like him on the court are desperately needed. Ideally the entire court would be truly nonpartisan. No president should dare nominate someone who didn’t have a history of balanced rulings.

Those days are thirty or more years in our past. It doesn’t look like they will be coming back, which is tragic. Yet this is exactly what we need from a functional Supreme Court. Justices that fairly uphold the law, even if these laws are perceived as unfair, encourages Congress to update these laws. It’s not the fault of those nominated to or serving on the bench, though. It’s the fault of presidents who nominate people without these sorts of sterling qualifications.

President Obama did a fair job of providing nominees like this, and Garland was probably his best pick in this vein. Kavanaugh’s nomination proves that Trump doesn’t care about the Supreme Court’s vital role to impartially render justice.

All we can do is hope that our next president will put the nation’s need for fair and honest jurisprudence first. For a change, maybe we should vote for a candidate that pledges to do this, so we can have a meaningful and useful justice system again. It’s quite clear that without it our nation is deeply disordered. Voters must do their part to restore a truly impartial judiciary.

Republicans reestablish the patriarchy

The Thinker by Rodin

For Republicans, Donald Trump’s nomination of Brett Kavanaugh as the justice to replace Justice Anthony Kennedy on the U.S. Supreme Court is like winning the Triple Crown. It’s the greatest news possible for them. This is because with Kennedy’s departure and Kavanaugh’s likely lifetime appointment, Republicans will finally formally control all three branches of government.

The Supreme Court though has always been the one that has mattered the most. It’s just that for decades it has teetered between liberal and conservative justices, with Justice Kennedy usually the one making the final say on controversial issues like gay marriage. Arguably Kennedy was our only truly impartial jurist. That should disappear if Kavanaugh dons those black robes, which means it will be rare at best to get rulings without a Republican take on the law.

Notice I did not say a conservative take on the law, because the so-called conservatives on the court have been anything but that lately, frequently breaking precedence with previous courts. Traditionally, conservatives have respected jurisprudence. Kavanaugh’s record as a judge shows little respect for precedence. He has argued that the president has no checks on his power other than impeachment and removal. This would be news to previous courts such as the one that required President Nixon to turn over tapes to the Watergate special prosecutor. A real conservative should deride any judge that thinks anyone is beyond the law, but that’s what Kavanaugh has argued about the president.

I hesitate to tell our Democratic senators to give up on opposing his nomination. He has at best a 1:10 chance of being rejected. I’d like Democrats to fight dirty because that’s how Republicans won this trifecta. They fought dirty for decades to push their power far beyond the consent of those they govern. This nomination though is vindication for them in a strategy that clearly worked. They out-hustled Democrats by using tactics that were minimally suspect and maximally appalling.

Political gerrymandering is not illegal since the Constitution delegates voting rules to the states, at least those laws not dictated by federal law. The Voting Rights Act was one tool that for decades made it harder but clearly not impossible to disenfranchise voters. All that changed in Shelby v. Holder (2013), which overturned the rule that certain states needed preclearance by the Department of Justice before changing their voting laws. Five grumpy “conservative” justices (Roberts, Scalia, Kennedy, Thomas and Alito) thus cemented voter disenfranchisement as an acceptable political tactic. Within 24 hours of the decision, Alabama announced that it would require photo identification at the polls, a direct result of this decision. Alabama simply could not wait to disenfranchise minority voters.

So not only are we likely to have a true “conservative” court soon, but the patriarchy is fully in charge, which is what really makes them giddy. The five “conservative” justices are all men. These five men will likely rule within the next few years that women no longer have control over their own bodies, when they allow states to outlaw abortions. Twenty-two states have laws in place that will immediately outlaw abortions when it is legal to do so. This strangely includes Massachusetts where I live, which never got around to overturning its law.

You would hope that conservative justices would be pro-freedom, but if you look at their actual rulings, it’s pro-freedom mostly for people a lot like them: white, rich and male. It’s not for women; at least not after Roe v. Wade gets overturned. It’s clearly not for blacks and Hispanics, who must jump through increasingly onerous hoops to vote if they can vote at all. It may not be for gays and transgender Americans, whose recent expanded rights to marry and use bathrooms of their gender are at jeopardy again. Their gay marriage ruling may get overturned since Kennedy is no longer the swing vote.

It’s all pretty bleak unless you are one of these “conservatives” that adhere to two levels of justice: one for people like them and a harsher one for everyone else. For them, this is good and with five “conservatives” on the Supreme Court they lock down the power that matter most to them – the power to make people do what they want – for decades to come.

There are some things that Democrats can try. They can hope to stay united and peel off Republican senators Murkowski and Collins. This probably won’t work, which is why I gave it 1:10 odds. They could refuse to vote on the nomination although it’s unclear if this would change the outcome. They could try to shut down all Senate business until after the midterms when Democrats might control the chamber again. Or they could insist that President Obama’s nominee, Merrick Garland, first get the vote he was denied in simple fairness.

Of course, it’s fighting dirty that Republicans do best. Senate Majority Leader Mitch McConnell’s refusal to bring Garland’s nomination up for a vote was very dirty and unprecedented. It would be fitting if Democrats refused to move this nomination until this error is corrected. Republicans though have no conscience. This tactic never bothered them at all. With them, it’s always party before country.

Still, demographics do matter. Our country is coloring up and becoming more liberal and secular every year, in spite of Republican actions to stem this tide. Democrats and independents must crash the gate somehow and regain control despite the wholesale gerrymandering and voter disenfranchisement unleashed by Republicans.

The far right Infowars talk show wacko Alex Jones famously predicted that Democrats would start a new civil war this July 4. Republicans would be wise to remember that the people have a right to revolution to overthrow unjust governments; it’s right there in the Declaration of Independence. Through dirty and undemocratic tactics, Republicans have created a fundamentally unjust government that have disenfranchised large blocks of citizens. These forces cannot be forever bottled up against the consent of the governed.