In 2021, Democrats need to make good trouble

Like many Americans, my heart sank Friday when I learned of Justice Ruth Bader Ginsburg’s death. I wasn’t surprised that before her body went cold Senate Republicans would move on and press a case to replace her as fast as possible. Both Trump and the Republican Party have every incentive to do so. For Republicans, what’s not to like about a 6-3 conservative majority, particularly since they sense they will lose the Senate in the upcoming election? Also, for them, wielding power means forcing people to do what they want. They lust for overturning the ACA, for a court that makes denying coverage for preexisting conditions illegal, and for overturning Roe v. Wade. For Trump, the impetus to get a replacement on the court before the election is vital to his plans to corrupt the upcoming election.

George W. Bush infamously found a path to 270 through the Supreme Court. It’s now a far more partisan institution, so getting a justice Trump considers a loyalist on the court before November 3 means that when his inevitable court cases challenging results come before the court, he is likelier to prevail. It will be 2000 on steroids. Recently Trump opined that he could issue an executive order not allowing Biden to take office. Trump never asks permission; he just goes for it and sees what happens. It’s not even clear that if the Supreme Court ruled against him that he would follow their ruling. In any event, a 6-3 conservative majority makes it less likely that they would.

The only consistent thing about Republicans in Congress is that if they can take an inch, they will take a mile instead. It’s all about maintaining raw political power. They are heedless to the consequences of doing so. A government controlled by a minority cannot be considered legitimate indefinitely.

Which is why if we get through this election, Biden wins the presidency and Democrats control Congress, it’s time for Democratic retribution. I’m dubious we’ll get it, as Biden promises to listen to both sides and stupidly thinks Republicans can be persuaded. But retribution by the majority is long overdue.

As it turns out, it’s not that hard to put Republicans in their place. Democrats though just have to show some spine. They will also have to clean up the messy mountains of trash left by the latest Republican administration. We need functional government again too.

To start, the Senate filibuster needs to end. It’s largely dead already, so it wouldn’t take much to make it die officially. The filibuster is not in the Constitution. It ends with a simple majority vote, presumably at the start of the new Congress when rules are agreed to through a simple majority.

Second: pack the court. The constitution does not specify nine justices. All it takes is a bill passed by both houses of Congress and signed into law, which will be in Democratic hands. With a 6-3 conservative court we will need at least three more, but let’s make it four for a clear liberal majority. It’s been done many times in the past. Republicans invented all sorts of reasoning for their tactics. So can Democrats. Here’s one: we’re a country of 330 million people now and too much power is in the hands of too few justices. This would more evenly distribute power making it harder for a minority to control a majority.

Third: pass a constitutional amendment that allows the Attorney General to be elected. Trump shows exactly what can go wrong when the Justice Department reports to a lawless president. I propose like the president we elect an attorney general to a 4-year term, every four years. Like the president, there would be a maximum of two terms that could be served by one person. To make it more interesting, run the Attorney General race during non-presidential voting years. It would give us a reason to vote. The amendment should provide that the Attorney General will control the budget of the Justice Department and directly submit appropriations to Congress, outside of the Executive.

Fourth: appoint an independent prosecutor to look into and prosecute potential crimes by Trump and his administration. To avoid the appearance of partisanship, he or she should be a diehard Never Trumper with a proven commitment to impartially upholding the rule of law.

Fifth: keep working with the states to pass the National Popular Vote Interstate Compact. When we have states representing more than 270 electoral votes passing laws agreeing to this compact, the Electoral College is effectively dead, because these states will award their electoral votes by law to the winner of the popular vote for President of the United States. Currently states with 196 electoral votes have passed this legislation, and it’s pending in states representing another 64 electoral votes. If those states passed legislation, we’d be just 11 electoral votes from getting rid of it for good. All it does it increasingly make it likely that our president won’t represent the majority of those who voted for him or her. Biden should make this his cause, and personally coax state legislatures to give it impetus.

Sixth: expand Congress. With Democrats in charge and with no filibuster, there’s no reason not to make the District of Columbia and Puerto Rico states. DC would still have more people in it than Montana, which gets two senators. But let’s also expand the House. With 435 seats, one representative represents more than 700,000 people. That’s too many people. We need a House that changes size based on population. This too can be done with legislation: no constitutional amendment required. The number was last raised in 1929. In the first congress, one representative represented about 30,000 people.

In the words of the late Rep. John Lewis, Congress needs to make good trouble. This is all good trouble. We’ve seen a lot of bad trouble these last few decades. We need a Congress that proportionately represents us, not disproportionately conservative states.

Our likely coming post Election Day nightmare

It’s not hard to predict that Joe Biden will win the presidency. It’s even easier to predict that regardless of what the votes are, Donald Trump will dispute the results. It’s also easy to predict that voting will resemble something of a fiasco.

It will be a manmade fiasco. Those who can will want to vote by mail. I know I will. But most states don’t have much experience with vote by mail, and certainly not at the level likely to be seen in this election. It’s unlikely that there will be any money in a next bailout for this effort. But even if the money is there, time is running short for states to put good operational plans in place. We are less than three months until Election Day.

And of course you can count on states that are controlled by Republicans will pull out all other stops to suppress votes from people they don’t want voting. Expect fewer polling stations in communities of color. This is a well-practiced tactic, but there is likely to be even fewer such places this year. And if it’s possible to purge voter roles, Republicans will do so. Trump’s new postmaster general is already prohibiting overtime, leading to delays in the delivery of first class mail. In most states, ballots received after November 3 won’t count. Mail in voters will need to allow for extra time for ballots to be received. Many polling places are in schools, which are likely to be shut down due to covid-19. That will be another excuse Republicans will use to reduce the number of polling places.

Obviously worried, Trump is already busy being proactive. He claims vote by mail will be fraudulent, and claims there is a distinction between it and absentee voting. There isn’t, unless absentee voting means going to city hall a week or two early and voting there instead. That’s not what it meant to Donald Trump, who voted absentee by mailing in his ballot. Trump is already being selective. In states where mail in voting favors Republicans, like Florida, Trump is not concerned, but where it favors Democrats, like in Nevada, obviously that sort of voting should not allowed. Many states have mastered mail in voting, such as Oregon, but obviously their successes won’t change Trump’s opinions.

So what’s likely to happen is that Trump will dispute the results, mostly in swing states where he lost. This will involve two tactics: inciting his supporters to take action legal or illegal (expect lots of paramilitaries trying to occupy certain state capitols), but also through lots of litigation. He will also try to whip up Republicans in Congress to claim that the election was fraudulent. Ultimately though it is up to each state’s Secretary of State to certify the results of its state’s electoral college, which will generally meet in the state’s capital in early December. In 2000 this is what happened in Florida, after the case went all the way to the Supreme Court and sealed the election for George W. Bush.

Past that point the scenarios get scarier. If you remember what happened in 2000, the results of the Electoral College are announced in what amounts to a joint session of Congress, overseen by the president of the Senate, at the time Vice President Al Gore. You may recall the irony of Al Gore declaring George W. Bush had a majority of the Electoral College votes after each letter from the Secretary of State was opened at the session. Gore made Bush’s presidency official.

The scarier scenario is that Trump tries to prevent this from happening, perhaps by surrounding the Capitol with armed troops so Congress can’t meet. While all this is going on, there would be huge protests across the country, but most importantly in Washington D.C.

It’s likely that many of Trump’s paramilitary forces will try to go postal. It’s not hard to envision armed conflict between Trump supporters and protestors, governors trying to use the National Guard to keep order in their states and Trump trying to use his powers as Commander in Chief to overrule them. It’s also hard to see how the Supreme Court does not get involved somehow. Given that Trump is already not bothering to follow court orders, most notably on DACA, it’s unclear whether he will even go along with the Supreme Court’s decision, which is likely to go against him.

The best that Trump can hope from the Supreme Court is that it sees the certifications by certain states as likely tainted and tries to delay the selection of the next president by the congressional process. There are some wild scenarios where a deadlocked Electoral College means that Congress chooses the president instead of the Electoral College, with each state voting as a block. Republicans currently control twenty-six legislatures. This is potentially could be a way for Trump to stay in office, but only if the Electoral College deadlocks, which is unlikely.

Which ultimately leaves the issue to the constitution and law. If the Electoral College has not decided on a president or vice president by Inauguration Day, the Speaker of the House would be the acting president. This will almost certainly be Nancy Pelosi. And she will have to try to clean up this constitutional crisis, likely while our country descends into something resembling low-level civil war. Ultimately it will be our military and whether soldiers follow their sworn oaths that will make the difference. Regardless, Trump’s current term ends January 20 at noon Eastern Time.

Let’s hope it doesn’t come to this. It’s clear that Trump won’t accept any results where he loses. The time between Election and Inauguration Days are likely to be the most fretful and constitutionally challenging on our republic’s history. What it will amount to is whether enough Republicans follow rule of law to force Trump’s hand, and betting on that happening is likely to be a bad bet.

Righting our Upside Down government

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

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 are being politically stupid on the Kavanaugh nomination

It used to be that Republicans had something of a reputation for being politically astute. For example, they spent more than thirty years building their brand and mucking up the machinery of government to disproportionately favor them. They perfected gerrymandering, gerrymandered a Supreme Court to allow unlimited campaign contributions through mysterious PACs and overturn key parts of the Voting Rights Act, which quickly resulted in major voter disenfranchisement.

Their “take no prisoners” strategy lately though has looked increasingly desperate. After Justice Anton Scalia’s death, they refused to even given President Obama’s nominee Merrick Garland a hearing, because a presidential election was only 200 plus days away. Of course once Trump was president, they had no issues expediting the hearings for our new Justice Neil Gorsuch. More recently it was the swing justice, Justice Kennedy that retired. Trump took only a couple of weeks to nominate Brett Kavanaugh. His hearings were slowed down only a little because senators wanted to take summer vacation. Of course shortly after Labor Day his hearing started in earnest, feeling very much like a kangaroo court, the “court” in this case being the U.S. Senate. There was no time to do things like review his voluminous records working for Ken Starr or George W. Bush. Mitch McConnell wants that conservative court ASAP so screw that.

Now we have accusations from a California professor, Christine Blasey Ford that Kavanaugh participated in a sexual assault against her when Kavanaugh was 17 and she was 15. There is plenty of circumstantial evidence that makes this accusation credible, including a wishy-washy response from Kavanaugh’s alleged accomplice (“no memory”), 2012 notes from Blasey Ford’s therapist, remembrances of fellow students at the time on incidents like this, yearbook entries of Kavanaugh that suggested he drank a lot of beer and occasional speeches by Kavanaugh (some recent) where he was quoted as saying what happened at his exclusive prep school stayed there. It doesn’t help Kavanaugh that he lied repeatedly at his confirmation hearing, as well as previous confirmation hearings. These lies don’t seem to bother Republicans though. Apparently anything is excusable to get that last conservative justice on the Court.

Republicans are becoming Icarus flying too close to the sun. Supposedly their rationalization for not throwing in the towel on his nomination is that it will disappoint their base and maybe depress their voting in the upcoming midterms. They realize their clock is ticking at that come November 7 they may lose control of Congress.

Later if more credible accusations come forward, I guess they figure they won’t have to pay a political price. They also apparently think they won’t pay a political price by giving Blasey Ford a perfunctory hearing and then voting Kavanaugh in, as if their blithe dismissal of these allegations won’t cause uproar against them from the many women out there who have endured similar incidents.

In truth there is plenty of time to give Kavanaugh a quick heave ho and put someone of a similar ilk on the court. The only thing that distinguishes Kavanaugh from the list of conservative jurists provided by the Federalist Society is that he most likely to give Trump a pass if cases of Trump’s malfeasance come before the court. It’s pretty unlikely though that any other pick will have potential sexual assault as baggage. It’s unlikely that a new nominee could be confirmed before the midterms, but new senators won’t take office until January. You would think that given their concern over Obama’s nominee that they would defer a vote until the new Senate is seated and can weigh in. Ha! Of course not! They would push this through during a lame duck session and they would not work up any sweat garnering the votes either.

Instead, they are doing the stupid thing. They are inflaming millions of female voters, as well as many of us male voters further appalled by their disinterest in doing any meaningful due diligence before putting someone on the court for a lifetime appointment. They are setting themselves up not just for a huge blowback in November, but further blowback down the line if further allegations come up.

The price for dumping Kavanaugh is a short-term blowback that will soon be forgotten when a new nominee is chosen. Knowing that this nominee will have a cleaner record than Kavanaugh’s, it’s likelier that Republican voters will feel a mixture of relief and greater enthusiasm. Moreover, they will make some amends for their 1991 confirmation of Clarence Thomas, tarred by sexual harassment allegations from Anita Hill. These allegations against Kavanaugh though are much more serious than a case of sexual harassment.

I’m not sure where the sane Republican senators went, but hopefully there are enough of them out there to reject this nominee just because it is the saner thing for them to do. Right now though there is plenty of evidence that their political calculus is way off, and they are undercutting their own professed goals.

Republicans reestablish the patriarchy

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.

The Justice Kennedy resignation and dialing it up to 11

The retirement of Justice Anthony Kennedy, while not surprising, nonetheless has stirred up a hornet’s nest. Our only swing justice, it means that anyone Trump nominates is very likely to vote reliably conservative. Obviously this has huge implications, the most obvious of which is that Roe v. Wade is now under serious jeopardy. A 5-4 conservative court won’t wait long before accepting a case that will give antiabortionists the win they’ve been craving since 1973. Women are going to become chattel again, at least in some states that have decided that even before three months of pregnancy they don’t have the right to control their own pregnancies.

Such a court though is unlikely to declare that abortion is unconstitutional nationwide. Rather, it will give states permission to outlaw abortion within their boundaries. States like Texas have already made it impractical for most women to get abortions, so in some cases this won’t change too much. Abortion should still be available to those with the means to cross state lines. Of course, the women conservatives most want to disempower are those who are poorest, which should be odd because at the same time they will expect these women to support these children they will be forced to bear with little in the way of government help.

There will be plenty of other ways that a conservative court will make the vast majority of us unhappy. And the conservative majority could easily grow, as its liberal members tend to skew toward the older side. As bad as Kennedy’s retirement is for progressives, it could have been worse. Instead of Kennedy, it could have been Justices Ginsburg (85) or Steven Breyer (79) that opted to retire instead, or simply died in office. In his last year, Justice Kennedy has been no friend of progressives.

The script has been memorized; the die has been cast. We know how the next few months are likely to unfold. Trump will pick some nominee off his ultra conservative list and is likely to do it sooner rather than later. Senate Majority Leader McConnell will bend over backward to move the nomination for a vote ASAP, bypassing the Judiciary Committee if possible. There is a little hope that the Senate will ultimately vote against the nomination. Senator John McCain presumably won’t make it back to Washington to vote one way or the other, and may pass away during the interim. So in theory just one Republican senator breaking ranks could undo the nomination. Senators like Maine’s Susan Collins or Alaska’s Lisa Murkowski are possible swing voters. At best, the Democrats’ odds are 50:50. Trump could dramatically improve his odds by nominating someone just a tad mainstream. In a way, it’s better for Democrats if he doesn’t, providing the nominee ultimately fails to be confirmed.

So everyone is hoping a nomination will fail and that somehow Democrats can hang on through the election and retake the Senate. At best the odds for Democrats is turning the Senate are 50:50 too, so this is quite a long shot as well. If they control the Senate though they definitely control the nomination process as well. That’s their best shot at replacing Kennedy with someone similar to him.

Since McConnell created a new rule that deferred action on President Obama’s nominee, should Democrats regain the Senate then they will be under pressure to get even. One idea going around is that Trump’s nominee should be denied consideration because Trump is under active criminal investigation. If you believe in the Law of Karma, it would be appropriate for a Democratic Senate to refuse to vote on a Supreme Court nomination until the 2020 election. Democrats though aren’t very good at being evil. Republicans though have perfected it.

And that’s what this nomination is all about, really: the culmination of decades of work by Republicans to gain ultimate power while consistently ranking up a minority of votes nationwide. At best their approach has been morally dubious. Republicans have been ruthless, taking a mile when they should have taken an inch. They had no qualms about gerrymandering districts to the extreme and openly suppressing the voting rights of those who are likely to vote against them. Justice Kennedy helped cement these oversized privileges with recent votes on gerrymandering cases that came before the court. Ultimate power though rests not in the presidency or in Congress, but in the courts because of federal judges receive lifetime appointments.

Democrats’ hope of course is for a blue wave this November. Democrats were already fully engaged but this retirement will only add to their animus. It may also bring Republicans out to vote disproportionately too. The case for Democratic control of Congress though only grows as a result of this retirement. The already high stakes have grown even higher.

Our cacophonic political scene already deafening is going to grow even louder as the amp now gets cranked up to 11.

Dear Supreme Court: please free our political moderates

The Supreme Court has agreed to hear a case on whether Wisconsin’s state assembly map constitutes an illegal partisan gerrymander. The court has never struck down a voting district map based solely on its political boundaries, so it’s unwise for those who would like to see fairer voting districts to get their expectations up.

I’m not enough of a lawyer (not being one at all) to understand the legal issues, other than the constitution specifically delegates voting criteria to the states. The Voting Rights Act requires that certain criteria (like race-based criteria) cannot be used in drawing maps. This hasn’t kept states from doing this anyhow. In most cases courts strike down these maps after an election where they are used to partisan advantage. New districts are drawn that are generally still illegal, so the cycle seems to continue forever and never really gets settled. At least that’s been the case since the Supreme Court’s 2013 ruling that certain predominantly southern states no longer need to have their voting maps cleared in advance.

State assembly maps are where the real power is, because generally they draw the political boundaries for both state and federal voting districts. Republicans used this to great effect after the 2010 election when they won Congress and state houses. Voting districts were required to be redrawn based on the 2010 census so Republicans used it to lock in their power at least through 2020. Quite frankly, this has a lot to do with the mess we are in at the moment. These highly partisan voting maps as well as state voting restrictions that don’t pass the smell test have given Republicans enormous political clout that far overstates their power if voting districts were created fairly and impartially.

Pretty much everyone agrees that our politics are a huge mess. This is a direct result of extreme gerrymandering. I sure hope the court finds political gerrymandering illegal, but most likely they will not. I hope this not just because I necessarily am pining for more Democrats in office. I say this because to end our political mess we need lots of moderates in office. I can’t see any way to bring moderates back into politics unless we end political gerrymandering.

Democrats may be in the minority in Congress, but it’s becoming even harder to find any moderates left in Congress. Moderates of both parties used to form the political center. Their presence allowed government to function because they facilitated political compromise. These days significant change is only possible if one party controls both Congress and the White House. Usually when that happens you get laws that only appeal to the rabid wings of the party. Trumpcare is liked by only 16% of Americans, with even only 34% of Republicans liking it, but that doesn’t mean that Congress won’t pass it anyhow.

If it happens it will be a law of immense cruelty. Make no mistake: the Senate’s current version of the bill has nothing to do with improving health care. That’s merely a smokescreen. It has two principle purposes. The first is to give tax cuts to the wealthy. Republicans see it as restoring tax rates for the wealthy to what they were before the Affordable Care Act. The second is to end Medicaid as an open-ended entitlement program. For more than fifty years it has set a floor that no citizen could sink beneath. By limiting federal contributions, it encourages states to race toward the bottom: limiting enrollment and cutting benefits. In effect, the poor will simply get poorer, making the wealth gap even worse than it is now. The effect is pretty obvious: lots of people are going to die prematurely and painfully. It’s an outcome that only the Marquis de Sade and today’s Republicans can love.

All this is from a supposedly “pro-life” party. It’s obviously quite the opposite. I’ve discussed these gaping inconsistencies in many other posts, so I won’t revisit them here. What I will note is that whether it is Republicans who want to kill off their poor constituents because they don’t believe the rich should help subsidize their health, or whether it’s far left partisan Democrats who won’t accept anything less than single-payer health insurance, ideally at government-run hospitals and healthcare centers like the Veterans Administration, these are solutions favored by a fringe. Ask your typical man or woman in the street if they favor either of these approaches and you are likely to get a resounding “No!”

But you don’t see many of these people in Congress because gerrymandering conspires to leave them out. That’s the real crime of gerrymandering: trying to force the government to be run by the extreme partisans when it needs the consent of the governed, which includes a lot of moderates. Gerrymandering extends political dysfunction, empowers people that hate their own government, fosters conflict and may pave the way toward a new civil war.

All of this is preventable if government can become of, by and for the people again. With moderates forming about 35% of the population, but likely represented by no more than 10% of legislators their interests are simply not getting considered. This is political disenfranchisement on a massive scale. Blacks may be disproportionately under represented, but at least these highly-partisan voting maps gives them some diluted representation. Moderates though have little to no representation. Unless the Supreme Court steps up and declares political gerrymandering unconstitutional or (much more unlikely) Congress sees the light and acts against their own partisan interests to enact such a law, it’s not hard to predict that our government will become more detached from its citizens, ultimately representing mostly a highly partisan few. That’s a recipe for national disorder that only the Kremlin would approve because it is simply not democratic. It’s not even republican.

So the Supreme Court could become the savior of our democracy if they find the legal standing or discipline to do so in their upcoming decision. If there was ever a reason for Americans to pray, praying the Supreme Court sees the light on this seems a priority for religious Americans of all types.

Justice Scalia’s untimely departure

One week later and I’m finally back blogging. Mostly I was out of town attending my father’s memorial service and all the family events that go along with it. It was all quite a blur. While my family grieved, reconnected and moved forward, the world kept moving forward too, I just wasn’t paying much attention. In politics this included a Republican and Democratic debate (which events forced me to miss) and the sudden death of Justice Scalia on Saturday, which I did not miss.

We were winding down from family events at a friends’ house when the news of Scalia’s death was announced. Almost in the same breath everyone had moved past the death of a man and onto the many political implications of who would replace the conservative jurist. It was embarrassing on both sides. Within an hour Senate Majority Leader Mitch McConnell (KY) announced the Senate would not take up the confirmation of an Obama nominee. A couple of hours later President Obama was saying nice things about Scalia while letting everyone know he was going to nominate a new justice anyhow. Scalia’s body had not even cooled!

And then the real craziness began. Candidates for president started chiming in not on Scalia’s career but on what they thought should be done about his replacement. CNN and all the news channels went into overdrive with mostly poorly informed opinions about what this transition means. Liberals cheered while conservatives started filling the moat with crocodiles and raising the drawbridge. In some ways this was everyone’s worst nightmare. The timing of Scalia’s death was disastrous. Even Democrats would have preferred that he finish the current year before expiring. As if we needed one more reason to heighten the importance of the coming election!

I’ve been sorting out all the opinions and analysis out there about what it all means. As a public service, I thought I’d distill it all down for you.

First, this is going to upset the Supreme Court applecart for the first time since Richard Nixon was president. For four decades the court has been balanced between liberals and conservatives, with decisions generally leaning toward the conservatives thanks to mostly Republican presidents. Scalia of course is perhaps the most prominent conservative on the court and certainly was its loudest one. Brass and opinionated with little interest in judicial decorum, he mouthed off all the time about stuff he should have saved for a memoir. Virtually anyone who replaces Scalia will by definition be less conservative than he is. The only chance Republicans have is if (a) a Republican president is elected in November, (b) he turns out to be very conservative and (c) the Senate does not switch to a Democratic majority again, which is at least a 50:50 probability. So it’s virtually certain that the balance is going to be tipped, at least in the more moderate direction, whether it happens soon or with a new president.

Second, not confirming a new justice will in many ways make things worse for Republicans. Scalia was a reliably conservative vote on the court, so with just eight members during this term decisions will break toward the liberal side. Tied decisions will either revert to the decision made by the appellate court or justices could decide to rehear the case at a later time. Since judges appointed by Democratic presidents control roughly two thirds of the appellate courts, most decisions will bend left minus Scalia’s vote. If the Senate approved another justice it would allow the possibility that at least some of these cases could bend toward the right. Another possible ripple: it may give Democrats extra incentive to turn out to vote, perhaps in larger numbers than Republicans, in which case it may enlarge expected electoral losses by Republicans. In short, by being unnecessarily obstructionist and dogmatic, Senate Republicans are effectively stomping on their own feet.

Third, there is nothing in the constitution that says the president may defer action simply because he is in his final year of office. President Obama is required to make a nomination. Not making a nomination would actually be grounds for his impeachment. The Constitution is quite clear in the Appointments Clause by using the word shall (which is legally binding); it’s a solemn duty he must perform. The Senate must approve or reject the nomination. Excessive delays by the Senate are potentially unconstitutional too. We could see a court case to determine if the Senate must vote on appointments within a reasonable period of time. So suggestions that Obama simply defer nominating anyone would be perilous politically and constitutionally.

Fourth, there is legal precedent for Obama to make a recess appointment for a temporary justice to see out his term. The Senate is currently out of session and a previous Supreme Court ruling stated that such appointments could be made if the Senate is out of session for three days or more. Justice William Brennan got a recess appointment this way from President Eisenhower; Brennan was subsequently confirmed. I don’t expect Obama to go this route but if Republicans are adamant that they won’t hold a vote until after he leaves office, this is one method that appears to be legal that he could use.

Fifth, Scalia’s death and the extreme reactions by Republicans to filling his seat point to the tenuous hold that Republicans have on Congress. It doesn’t seem that way, particularly with their commanding majority in the House. Their House majority is largely a result of gerrymandering following the 2010 census. However, America’s demographics are quickly changing in a more liberal direction. Not only have Republicans done little to address these facts, they’ve made their problem worse by doubling down on policies that inflame voters that might otherwise vote for them. My suspicion is that ten years from now we’ll look at Scalia’s death as the beginning of the end of Republican control of government.

Kim Davis’s rights are apparently more equal than yours

Kim Davis, the elected county clerk of Rowan County, Kentucky is sitting in a jail in Ashland, Kentucky tonight. She is in jail after being held in contempt of court by a U.S. district court judge for refusing to issue marriage licenses. The thrice-married Davis has been refusing all applicants (gay and straight) since the Supreme Court ruled in June that no state could prohibit two people of the same sex from marrying.

Davis says she cannot issue marriage licenses to gays and lesbians because gay marriage contradicts her sincerely held religious beliefs, i.e. her freedom of religion. She is an apostolic Christian and she believes that marriage can only be between a man and a woman. Five of her six deputies who were also called to the hearing have seen the light and plan to issue marriage licenses starting tomorrow. The other deputy, curiously Davis’s son, is not in jail.

Unsurprisingly this is national news. Both sides have been hanging outside the courthouse yipping it up at each other. To most Republicans it’s pretty cut and dry stuff. They have been promoting freedom of religion for a while as a way to selectively circumvent the law. Unfortunately for Davis, her case went all the way to the U.S. Supreme Court, which ruled that she must follow the law. Davis meanwhile seems to be suffering from a case of cognitive dissonance, unable to reconcile her oath to uniformly execute the law with her religious beliefs. It looks like God is winning, at least for the moment. It remains unclear if she will see the secular light, linger indefinitely in jail as a cause celebre or do the honorable thing for someone in these cases: resign.

Republicans definitely seem energized by this “freedom of religion equals freedom to discriminate” argument. This is hardly surprising but it certainly is curious. An oath is a solemn secular promise, and Davis swore it when she entered her elective office that pays a comfortable $80,000 a year (great money in rural Kentucky). An oath is a requirement of being in the civil service. I ought to know because for thirty-two years I was a federal civil servant. When our careers began we all raised our hand and swore the same oath: that we would faithfully serve the constitution of the United States. (Curiously I had to end it with “So help me God,” although I was an agnostic.) Davis is not a federal civil servant, but it’s likely that her oath contained similar words.

While I was a civil servant, upholding the oath was not just the law and a good idea, not following the oath was grounds for my dismissal and/or possible other criminal penalties. In 32 years I served five presidents from Jimmy Carter (very briefly) to Barack Obama. The presidents I served frequently wrote stupid executive orders, and some of them were deeply offensive to me. Congress wasn’t much better with the laws it was passing. For much of that time I was a Unitarian Universalist. Although its adherents have no creed to profess, lots of stuff I had to do contradicted my religious beliefs. The first part of my career was with the Department of Defense. I aided in the printing of maps and charts used to direct our armed forces, sometimes to kill people. As part of holding a security clearance I could not disclose things that I knew. To this day I still can’t, and some of the stuff I learned shook me to the core and was both personally offensive and violated my religious beliefs. To get a security clearance in the first place I had to swear I wasn’t a homosexual. (This fortunately has changed.)

While working at a more benign department, Health and Human Services, I had to sometimes provide support to the office that promoted President Bush’s faith-based initiatives. This was pretty obvious to me a violation of the boundaries between church and state, but I shut up about it while expressing my opinions freely outside the office. I didn’t like it, but Bush had been constitutionally elected and if it was unconstitutional, it was an issue for the courts. So like Kim Davis, there were many aspects to my job that rubbed me the wrong way. I knew if it became too much to bear that there was an alternative: resign and find a job without these conflicts. Davis has that option right now. All she has to do is use it and she gets a get out of jail free card, quite literally.

Oaths are there for a very good reason: government can’t run if civil servants can selectively decide which parts of the law they will follow or ignore: laws can become toothless if they are not uniform. These same Republicans who are gung ho supporting Davis’s religious rights would not for a moment allow it from a soldier who refused to fight. “It’s against the commandments to kill, sergeant. Sorry, I’ll opt out of this battle. Maybe the next one if it’s not lethal.” It won’t work for the food inspector with a sincere religious belief against GMOs. It won’t work for the judge who refuses to give a mandatory sentence. Our constitution says that the Supreme Court gets to decide what is constitutional, the court decided it about gay marriage and it conflicted with her religious beliefs. The constitutional approach if she doesn’t like their decision is to push for a constitutional amendment prohibiting same sex marriage.

Instead, Davis’s response was to deny all who came to her the right to marry. In doing so she violated couples’ civil right to marriage and all the benefits that come with marriage. Her “right” to freedom of religion effectively trumped the rights of lots of others and put others through unnecessary hassle, expense and emotional trauma.

It should be obvious that any right that restricts someone else’s rights is not a real right. But that’s essentially the argument she and Republicans are making, and in her case she is doing while executing the law. If all civil servants had the right to rewrite or sidestep laws they don’t agree with while retaining their position, government would be mostly dysfunctional.

Republicans basically want anarchy anyhow, so maybe that’s why they are cheering her on. They are cheering anyone who will push policies that they agree with, legally or illegally. It’s affecting the ends they want that matter, and most are not principled enough to see this is both illegal and wrong. This variant on the freedom of religion ruse is just one more.

Fortunately, at least U.S. District Judge David Bunning gets it. A fine would not be enough here. Right-wingers would simply set up a fund that would allow her to flaunt the law indefinitely. So I feel no pity for her whatsoever. If her convictions are as sincere as she claims, the honorable thing to do is to resign. Otherwise, she should follow the rule of law for her public position that she swore to uphold and for which she is paid to uphold. Or she can choose to rot in jail on principle, which is fine with me.

Update 9/4/15 – Clarified post to note that Davis’s son has not been jailed.