Supremely Unfit

If Brett Kavenaugh were fit to be on the Supreme Court, he would withdraw his name from consideration immediately.  That he has not withdrawn his name is yet another indication that he is unfit.

Kavenaugh may be guilty of sexual misconduct--perhaps multiple instances.  Regardless of his guilt or innocence, he has been caught in a number of evasions and outright lies in his Senate testimony under oath.  He has wrecked his reputation as a jurist capable of non-partisan judgment.  As a Justice, he will damage the integrity of the Supreme Court for a generation.  Therefore if he cared about the Court, as any potential Justice should, he would withdraw now.

Beyond the particulars of misconduct and deception, the case against him could hardly be expressed better than in an editorial appearing in the Portland (Maine) Press Herald, urging Maine Senator Susan Collins to vote against him, regardless of the FBI investigation's outcome:

“Based on what he demonstrated in his own testimony, Kavanaugh lacks the character and judgment to serve on the Supreme Court…. Kavanaugh revealed that he has an explosive temper and resorts to bullying when he feels threatened… Kavanaugh also showed himself to be impermissibly political for a job that is supposed to be above politics. We’re not naïve. But we have never had a Supreme Court nominee who ripped off the nonpartisan mask the way Kavanaugh did Thursday… After his partisan rant, Kavanaugh will never be able to judge a case without the animus he expressed being considered a factor in his decision.”

It is clear from all of this that his presence on the Court will damage the institution itself.  There will most likely be continuing controversy and investigations into his statements and conduct, including impeachment proceedings, when Democrats become the majority in the House (probably this year) and Senate (if not in the 2018 elections, in the 2020.)  No Supreme Court decision will escape being tainted, and trust in the institution as the supreme law of the land will fall precipitously.

So if Judge Kavanagh truly values the Court and the Constitution above personal ambition and political partisanship, he would recognize this and withdraw his name from consideration.

But he probably doesn't.  He clearly values partisan advantage over jurisprudence.  His refusal to call for an FBI investigation seems to have been motivated as much by taking instructions from the White House as fear of what the FBI might find.

But of course, his complete fealty to extreme right Republican dogma and Republican politics is what makes him attractive to the current Republicans in the Senate.  None of them care about the integrity of the Court either.

At this point it seems unlikely that the results of the limited FBI investigation will be interpreted by the Republican hierarchy as definitive enough evidence to alter the outcome they so want more than anything else, even electoral victory.  As of now, it still seems likely that the Senate will confirm him, with all Republicans and possibly even one Democrat's votes.

But this time the searchlight will not be turned off, as it was with Clarence Thomas.  More will probably be learned very soon.  For example, if someone who obviously had a serious drinking problem can't admit it, does it not seem possible if not likely that he still has one?  The lies and the flaws will be exposed and will be remembered for a long time to come.
 
Placing the integrity, fairness and stability of the Supreme Court over personal ambition, ideology and political partisanship should be the first qualification of any candidate to be a Supreme Court Justice. Given the current situation, the only way Brett Kavanagh can support the integrity, fairness and stability of the Supreme Court is to withdraw his name.

Union Diversity: A Late Labor Day Observation (with a comment on Kavanaugh)

Ladies Garment Workers Union celebrates 60th anniversary
in a 1960 Labor Day Parade

You'd need to have been born no later than the 1950s to remember a thriving labor movement.  Industrial labor unions were potent political forces as well as engaging in high stakes negotiations that made American workers pretty much the best paid in the world.

Those gains were hard fought from the 19th century onwards, and strikes were a part of ordinary life.  I think as kids in 1950s western Pennsylvania, a long steel strike was almost as scary a prospect as an atomic bomb attack.  But those strikes and negotiations provided middle class incomes to the industrial working class, and everybody in the community benefited.

By the 1970s industries were choosing profits over community and began closing plants and relocating outside the country when foreign steelmakers became more competitive. Also wounded by internal corruption, labor unions dwindled until they became a lesser if not negligible factor in economic and political life.

With one exception: public sector unions continued to grow.  There were two crucial decisions that made this possible, both made by President John F. Kennedy.  Public sector unions were growing by the early 1960s, but JFK's executive order in 1962 institutionalized them within the federal government. This legitimized them at state and city levels as well.  By 2009, membership in public sector unions exceeded membership in private sector unions.

But the other and less appreciated decision actually came earlier.  In one of the first acts of his presidency, Kennedy ordered that no racial discrimination would be permitted in federal government employment, nor in contractors and subcontractors to the government, nor in labor unions working on these contracts. He created a mechanism to follow up to ensure compliance.  This was crucial: FDR had created a non-discrimination policy at the start of World War II but without enforcement.

The federal government at the time of Kennedy's order directly or indirectly employed nearly a quarter of the workforce.  This set a powerful precedent, and was instituted thereafter by states and cities.  Eventually anti-discrimination laws and policies would broaden beyond race, and government would be the most diverse employer.

This also meant that public sector union membership would be diverse.  In the 1960s, the large labor unions were advocates for civil rights (the AFL-CIO and Autoworkers were sponsors of the 1963 March on Washington for Jobs and Freedom--and members were participants.)  But unions struggled to build diverse membership, and after the issue of Vietnam splintered the big unions politically, that expansion of diversity slowed.  This by and large was not the case in public sector unions, where diversity was built into their growth.

Now we come to an intriguing political moment.  Public sector unions can help create a Blue Wave in the 2018 elections, but in particular, they can help make that a more diverse wave. This is a particular possibility this year, with many more women as well as more racially and culturally diverse candidates running.

 They in turn can represent a more diverse workforce and citizenry, fighting against the oppression now underway in Washington and many states, as well as championing both the public sector and a diverse America.  This last bastion of the labor movement can be key to saving the country from the rule of its worst instincts and worst people, those now in apparent power, who are creating an insidious internal threat that could turn out to be mortal.

                                       *                  *                 *

I can't even bear to make a separate post of this, I am just too sickened by it to comment at length,  but I can't ignore it either.  The nomination of the abomination called Brett Kavanaugh to the Supreme Court is the climax of the evil that is the Senate majority leader and Senate Republicans, and the entire R administration.  Its importance could well be profound, and for a long time. So far it seems that Senate Democrats are too weak and dithery, and Democrats in general too distracted, to offer much more than phantom resistance to the morally bankrupt Republicans of the Senate. Right now it looks like a tragic farce.  But we shall see.

Present: Labor's Love Lost

Update: At the Atlantic, Garrett Eps (I will take the credit for starting his career as a journalist by publishing him in Washington Newsworks so very long ago when I was its editor) shows why this case is playing out at the Supreme Court as a complete partisan scam, with the Republicans offering no facts whatsoever in challenging current law.

These days, being guided by past experience can be dangerous.  Too many things have changed.  But I remember when labor unions were strong, and they were the most vital supporters of Democratic candidates and the Democratic agenda. Moreover, despite some corrupt leadership, they moved America towards justice and equality.

But it seems that very soon the last remnant of this relationship is going to be destroyed by the Supreme Court, and today's hip commentators are unanimous that the Democrats are going to pay a huge price.

In a Slate piece titled Labor Lost, Sean McElwee and Mark Joseph Stern summarize the situation: the Supreme Court is about to decide whether public employees must pay dues to their union.  In its previous decision on the subject, the Court said yes, because all members benefit from the contracts the union negotiates on their behalf.

But with the cover of dubious constitutional arguments, the partisan Republican Court is about to decide the opposite, thus weakening if not destroying public employee unions.  The real reason will be: because that's what the Republican party wants.

Like suppressing voters, Russian interference and gerrymandering when GOPer legislatures do it, Republicans justify everything that gives them an unfair advantage.  Unions have long been a target, which is why Ronald Reagan and the 1980s Republican party did all they could to get rid of them, including the encouraging of jobs moving offshore to places where unions wouldn't be a problem for them.

Since then, public sector unions have been the last bastion and mainstay for Democrats.  Now the Supreme Court Republicans are about to take care of that, in a very likely 5-4 decision.

 This decision will go down in history along with Citizens United, Bush v. Gore and whatever case it was that sanctified opposition to all gun regulations because the Second Amendment was given a literal interpretation which parallels an interpretation of Genesis as officially naming creation day as October 23, 4004 BC.  All of these "decisions" twisted the Constitution in order to blatantly favor the Republican Party.

This comes at a time when one of the Democrat's new hopes, Conor Lamb, who making a race of it for Congress in a western PA district that went heavily for Trump, is advising that Democrats return to their union roots.  Ella Neilsen in Vox summarizes: Focused on recapturing blue-collar workers, Lamb’s campaign represents one school of thought — going back to labor-liberal economic values and working with unions to retake territory in Midwest and Rust Belt states that voted for Donald Trump in 2016."

But Democrats also have themselves to blame, for meekly accepting the decline of unions and the party's relationships with union leadership and members.  As Eric Levitz in New York succinctly put it last month: "The GOP understands how important labor unions are to the Democratic Party. The Democratic Party, historically, has not."

When Levitz says "historically" he means in recent decades.  From FDR to JFK and LBJ, the party certainly understood this.  In the elections I was part of, the party and the political committees of the unions were partners.  And this was in western Pennsylvania, which was reliably Democratic as long as those relationships were maintained.  Unions educated their members on issues, and represented their members' needs and wants to the party, and to its elected officials.

Unions were crucial as well to the Civil Rights movement.  They were in the leadership and in the crowd at the March on Washington.  They were progressives of the time.

That much of their white membership has grown so dismally right wing may well be partly if not largely due to weak or vanished unions, and the Democrats not responding to union issues as much anymore.  Levitz shows how much Democrats lost from a weakened union movement, and more importantly, what American society lost because of it, in laws that weren't passed and programs not enacted.  Including universal healthcare and a non-political national response to global heating, with enough time to save the future.

The survival of public sector unions to this point is due almost entirely to the past Supreme Court clarity on the right to organize.  But even some who support that right (or pretend to) question whether unions are compatible with public sector service.  That apparently includes conservative Republican justice Anthony Kennedy, considered a moderate or swing justice on at least some subjects, who made two blistering speeches on the first day of oral arguments on this matter on Monday, questioning the public sector unions right to exist.

It's no coincidence that public sector unions are largely comprised of minority and women.  Many public sector jobs are on the basis of exams or degrees, and rigorously color and gender blind.  That minorities and women tend to support Democrats because they agree with them on issues doesn't much matter to Republicans.  They see these unions as political entities opposed to them.

It used to be that once in awhile a Republican might suggest that the way to disengage unions from their historic ties with Democrats might be for Republicans to represent the interests of their members.  But that never got very far, and would be soundly booed at CPAC today, if not the cause of guns coming out of holsters and full scale riot.

  The Slate piece quotes research that suggests weakened unions will drive down voting.  It may not be so pronounced, or fatal to Democrats.  But then again, it might.  Regardless it's a big partisan win for Republicans, and for their very open brand of political corruption.

The great grandparents of many in the industrial areas of America literally bled and starved so that their unions could deliver a living wage and some just return on their labor.  Few tell that story anymore, or why unions--for all their faults--are still essential, and could do so much more that needs to be done if they were stronger.

  Some Democrats, like President Obama, have told this story, but not often enough.  And as Levitz shows, they haven't backed it up with legislation in recent decades.

And so Republicans will get away with this without the kind of public clamor that could make it a political liability.  Because the Democratic Party has forgotten its union roots.

Today's Notes

The average temp here for April 6 is 56 degrees.  The highest recorded temp was 70.  Yesterday---April 6, 2016--it got to 80.  We're close to today's record as well, but probably won't surpass it.

The current spat between Bernie Sanders and Hillary is a bit troubling.  Hillary challenged Bernie's qualifications, though she never in fact said he was "unqualified." Bernie has however made headlines by saying Hillary is unqualified.  This is a rhetorical exercise that he will probably walk back in the next debate.  But even in the furor of Hillary's famous 3 am in the White House ad challenging Senator Barack Obama's experience in 2008, Obama never said she was unqualified, nor as far as I recall did she say that of him.

 "Unqualified" is making headlines, mostly because one of Hillary's prime arguments is that she is more qualified, and because "qualified" is a major deal, and because the charge puts her in the company of Trump as unqualified, and lastly because she's a woman.  Bernie has gone too far this time.

Other matters: President Obama on the threat to the judicial integrity central to American justice because of the blatantly partisan political refusal by Senate Republicans to consider the appointment of Garland to be Supreme Court justice.

Jonathan Chiat on how Ted Cruz is a terrible candidate for President, even if he is less terrible than Donald Trump.  And Chiat yesterday--pretty interesting piece on the pragmatism of black voters over the years (and why they aren't supporting Bernie in the primaries.)

Will Merrick Garland Be the Next Supreme Court Justice?

Update 3/21: With Illinois GOP Senator Kirk advising that the Senate should "man up" and not only hold hearings but vote on Garland, the Senate Majority Leader doubled down on his obstructionism on Sunday, stating categorically that Garland will not be confirmed, before or after the election.  It used to be that Senators at least pretended they were approving Supreme Court appointees solely on the basis of their judicial qualifications and not for partisan or ideological reasons.  But on Sunday the majority leader actually gave as his reason why Garland would never be a Justice that the National Rifle Association opposes him.


President Obama's appointment of Merrick Garland to fill the Supreme Court vacancy was greeted by the media as a solid, "sensible" and excellent choice, a judge who is more qualified than any in a generation and has had wide bipartisan support before, but an appointment that seems to have little or no chance of succeeding.

That's because the Senate Republican Majority Leader immediately announced there would be no hearings and no vote on this appointment in this Congress.  This is a continuation of what GOPer leadership has been saying since virtually the moment that Justice Scalia's death was announced.

The alternative, some speculated, might be that if a Democrat were elected President in November, and especially if Democrats became the Senate majority again, that a "lame duck" session of Congress (a name for the period between the election and inauguration of a new President) might conceivably vote to approve Garland, partly due to GOPer fear of Hillary appointing a more liberal (and younger) Justice.  However, most concluded, this was still unlikely, and Garland is an extremely well qualified sacrificial lamb.

But on "All Things Considered" Wednesday evening, veteran Supreme Court reporter Nina Totenburg--probably the most respected journalist covering the Court and certainly the one I consider most credible-- said at least twice that Republican leaders have by "back channels" assured the White House that if a Democrat is elected President in November, they will vote to confirm Garland in the lame duck session.

Nobody else I've seen has confirmed this story.  But if it's correct, and if the GOPer leadership is true to its word (and I tend to believe the former before the latter), then Merrick Garland is no "sacrificial lamb" but more probably the next new Justice of the Supreme Court.

Voting with the Middle Finger

Weird weekend with the Democrats caucusing in Nevada but the Republicans voting in the South Carolina primary.  The Republicans will caucus in Nevada this week, and next weekend the Democrats vote in South Carolina.  Or maybe this separation should be viewed as symbolic, of two different democracies.

In any case Donald Trump triumphed in South Carolina.  One of the voters there explained why--he was "voting with my middle finger."  Hillary Clinton won in Nevada.

Now that some numbers exist, political pundits feel more comfortable in predicting the final outcome of the nominating contests.  Various of them made strong cases that this weekend's winners are going to be the candidates.

Jonathan Chait made the salient point that Rubio's second place tie--ten or so points behind Trump--is less impressive than he'd like it to look.  He needed to win South Carolina and didn't.  He's not utterly out of it, nor is the universally despised Tailgunner Ted, but fighting for second place is not going to be enough.  Even with establishment GOPers starting to line up behind him, the only ray of hope that South Carolina provided Rubio is that late deciders broke for him, not for Trump.  But if Trump keeps notching victories in March, it's very probably over.

Meanwhile, Chris Danner's roundup of punditry makes the case that Bernie Sanders has peaked.  They base this on numbers, but a rationale is not hard to develop. Sanders is the Democrat's anti-establishment candidate, though his appeal isn't to anger alone but to hope.  His supporters ask that people vote "with their hearts."

But if these pundits are right, Democrats are also checking their heads, as Dems are wont to do.  Barack Obama won their hearts, but in debates, town halls, speeches and in response to real world events, he demonstrated an ability to handle the job of President.

 Bernie Sanders has an intriguing record.  I first became aware of him when he was the socialist mayor of Burlington, Vermont.  (I was following the local rebellion against a proposed giant shopping mall, which turned out to be the first such project stopped by citizen action.)  Sanders turned out to be both a creative and pragmatic mayor, and if memory serves he was voted as the best mayor in the nation by his fellow mayors.

That was a long time ago, and it remains to be seen if Sanders can convince heads as well as hearts that he is up to the full range of presidential responsibilities.  But the nominating process is a matter of accumulating delegates, and he is rapidly running out of time.

That of course is not even a question being raised by the finger-voting GOPers who support Trump.  If we needed a reminder of how extreme all the surviving GOPer candidates are--and how that extremism is growing--here's one from the New Yorker's Amy Davidson.

The Republican party is becoming the party of the middle finger.  Whether it destroys itself in immense defeat in 2016 or destroys the country in victory is the open question.  Even an immense defeat in congressional elections may not prevent the GOP from functionally destroying the Supreme Court.

Hillary Clinton has not proven to be an especially skillful executive of her own campaigns, or even of the State Department, but at this point, voters may calculate that she's as close to a stable transition to a better country as we've got running. The GOPer friendly columnist David Brooks is not the only one who is already beginning to miss President Obama.

Clearing the Air

The sudden death of ultra-conservative Republican Supreme Court Justice Scalia and the likelihood that the Republican Senate will at least try to maintain this vacancy for a long time is also likely to result in a number of important no-decisions that will fracture federal law, as lower court rulings that conflict with one another will rule over different parts of the country.

But the negative effect of at least one recent Court decision--to postpone federal regulations on carbon pollution under the Clean Air Act--is likely to diminish. Even before today, despite the dire headlines, that decision was probably not going to have a major impact anyway.

While that stay issued last week does delay formal implementation of the regulations, it was likely only a delay.  As Jonathan Chiat noted: "Because the Supreme Court ordered the regulation of carbon in the first place, there’s little doubt that some kind of power plan could be designed that would pass legal muster."  This might require a different approach to the regulations, which would further delay implementation, but not ultimate success--as long as the executive branch wants those regulations.  Which means a Democrat in the White House.

Even a delay could weaken American leadership in the global effort to address the climate crisis that the world formally engaged in Paris 2015.  But as a practical matter, there may be no delay--because US power companies are going forward with their plans to meet the carbon goals.  The Washington Post reported:

"Executives for electricity producers and industry trade associations say they expect little deviation from what was already an industry-wide move from coal-burning to cleaner and cheaper forms of energy to produce electricity. The shift is likely to accelerate further in the near future, industry officials and analysts said, meaning that many of the administration’s carbon-cutting goals may be met regardless of what courts and lawmakers ultimately decide to do."

But now the legal fate of the regulations in the near term is clearer. The Supreme Court's stay on the regulations is to be in effect until the D.C. Circuit Court of Appeals makes its decision on the merits.  Chiat today:

"The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible."

This is going to be obvious to everyone involved, and further motivate electricity producers to go ahead with changes to limit carbon pollution.  Once that happens, even a Republican in the White House wouldn't be able to do much about it, because after all that investment, power companies aren't going back.

President of the United States

As for the impact on the election of Scalia's death and the Republican's open demand that the Constitution be violated and the President of the United States not appoint a Justice to fill the vacancy, at least one analyst believes it could further the likelihood of a Democrat being elected President in November.  John Cassidy in the New Yorker:

"If the Republicans block the nomination without properly considering it, which also seems likely, a huge political row will ensue, enveloping the Presidential race. (In fact, it has already done that, as the Republican debate proved.) Come summer and fall, the Democratic candidate, be it Hillary Clinton or Bernie Sanders, will be able to go the country and appeal for support in preventing the Republicans from humiliating President Obama and making a mockery of democracy."

So in that case who would win the 2016 election? By bringing to the polls the coalition that elected him twice:  President Obama.

Update: A summary of other views on how Republican "strategy" on the Supreme Court vacancy could hurt them in November and beyond. 

Tweeter Says: Bribes are just somebody's way of saying I love you

What's the fuss about Congress killing disclosure of who finances their free trips?  If money is speech and corporations are people, what's the problem?  Bribes are just somebody's way of saying I love you.

The Future of This Week

The news was pretty full of significant stories this week.  On Thursday the U.S. Senate passed an immigration reform bill, watched by a gallery of DREAMers chanting "Yes we can."  On Wednesday the Supreme Court nullified the Defense of Marriage Act, and essentially allowed gay marriage to proceed in California.  On Tuesday the Court struck down a key element of the Voting Rights Act, and without federal oversight several states immediately jump-started their push for voter ID laws.

On Tuesday as well, President Obama made his speech on the climate crisis.  It will probably come as no surprise that I consider this the most significant event of the week.  The gay marriage progress is a victory for  equal rights, and therefore for us all.  But the actual changes it enables will not affect everyone directly.

And while the Supreme Court affirmed the right of a group of Americans to marry, it also limited the federal government from protecting the rights of other groups of Americans to vote, and the loss of those rights may well have direct consequences for the country as a whole.  Nor is that theoretical, evidenced by the rush to enact voter ID laws for the demonstrable purpose of disenfranchising non-whites and poor and others who are less likely to vote Republican.

And of course the immigration bill is far from law; most predictions are that it will not pass (or possibly even come to a vote) in the GOPer House.

There are several interesting points of view on President Obama's speech on the climate crisis.  Frank Rich suggests that the effect is not in the actions he outlined ("I don’t think anyone believes that he can achieve more than incremental environmental goals by executive order; the legal challenges alone will long outlast his presidency.")  but "by acknowledging that governance is impossible with the current Congress and taking action, he has catapulted over Washington to the voters and strongly identified his party and presumably its next presidential candidate with policies that are in sharp contrast with what he calls the “Flat Earth Society” on the other side...Obama has put his party firmly on the side of the country’s future, not its past." 

Jonathan Chait disagrees on the effect of the executive changes in his plan, which he asserts"taken together, add up to a significant climate response."  And that's before the EPA standards on carbon pollution under the Clean Air Act.  He thinks that together these will mean that "Obama can meet environmentalists’ near-term goal of reducing carbon emissions 17 percent by 2020 on his own," but that to do better, especially after 2020, will require congressional action.

David Roberts acknowledges that "Obama is in a highly constrained position on climate. He faces hostility from Congress and the courts alike, with no broad-based popular movement behind him to scare them into line. All he can do is use the power of the executive branch."  Moreover, Roberts believes that the Obama team scheduled this address deliberately in the midst of what they knew would be a week of big news stories, so it wouldn't inspire "a pitched public battle."

Roberts says that some of the changes are potentially a big deal but that there's no way of knowing if they will actually get the U.S. to a 17% drop in emissions.  He notes also the No Drama Obama rhetoric of the speech, and concludes:

 "This is vintage Obama. He refuses to wage lofty ideological battles, which frustrates the hell out of people who view those battles as necessary and inevitable. He doesn’t direct a lot of energy at bashing his head into walls. He just puts the available resources to work doing what can be done. It’s not enough — it’s not even as much as he could do — but it would be a big mistake to think it doesn’t matter."

Xpostfactoid puts together Greg Sargeant's comment (similar to mine) that Obama's speech "recast the call for climate action as the centrist, common-sense solution" with Chiat's observation that  "Fashioning a long-term growth strategy is, and has always been, Obama’s deepest passion," and points out:  "I must add that if Obama's vision of enacting liberal policies as a means for achieving long-term growth has been left untold by certain parties, those parties don't include Obama. He has never stopped telling that story: it is the very heart and soul of his pitch to America and always has been." 

Though I don't agree entirely that economic growth is "the heart and soul," it certainly is a priority and a theme of the story. (Children, the future, including but not limited by economics, are also themes.)  But he's right that Obama has been telling his story and a lot of journalists haven't really been listening. Which is one reason I've spent so much time summarizing and liberally quoting his speeches--what he says is almost never reported, and when somebody finally listens, they assume he's never said before why they've just heard for the first time.

It occurs to me as well that the timing of this address may also result from Obama being able to cite growth in clean energy technology, seeded in part by his economic stimulus package and other legislation passed in the early Dem majority days.  It helps make the economic argument.

Roberts, who writes for Grist and has environmental cred, is right about the pressure from the enviro left--they want big dramatic speeches and proposals.  One such writer I saw crowed that Obama finally took her advice and made the big speech, but though it was "a nice try" it wasn't going to amount to anything-- classic double-bind bullshit.  And the right is even more extreme, beyond sanity, but some Beltway commentators think their arguments (carbon regs will kill economic growth) are still politically potent.

So given all of this, my sense that this is the most significant act of the week seems in  the distinct minority.  That doesn't surprise me.  All the same things were said about President Kennedy's American University speech fifty years ago--his proposals for a limited nuclear test ban were too modest, and too radical; they wouldn't mean anything, they would endanger American security and hasten war.  But that seed grew, and so will this one.  In the end it will affect more people--and more of the planet--than anything else that happened this week.

As for "nothing new," here's what was new in the speech (separate from the actions or proposals):

An American President declared that addressing the climate crisis is an urgent national and global need.

He declared that addressing the climate crisis means addressing both the causes and the effects.

He acknowledged that even as we address the causes, we will continue to feel the effects for some time to come.

No President has said any of that before.   But it is the agenda and the reality going forward into the future.

Of Roberts' Ruling and the New Order

Two things happened last week that bode well for the U.S. economy and the chances for the less than wealthy to make a little economic progress.  First was the Supreme Court upholding the constitutionality of the Affordable Care Act.  Had it been wounded or destroyed, the economic turmoil would have been immediate, injecting uncertainty (especially in the healthcare sector) into a fragile recovery.  Keeping it on track will benefit the economy--not to mention most Americans-- in the long run in a variety of ways.  The second event (in time) was the European Union deal that makes major economic turmoil in Europe less likely, at least in the short term.  Such turmoil would have immediately stifled U.S. growth and could have nudged the economy back into official recession.

There's been a lot of noise in Washington about the ACA ruling.  Predictably much of it is scandalously inaccurate, both in terms of the ruling and the facts of the law.  Predictably much of it is nervous and inflated political guessing.  A number of polls taken since the ruling on Thursday have concluded various things, but perhaps the most salient number is that almost half of respondents in one poll hadn't even heard of the ruling at all.

And all too predictably, some of the noise was scary.  The ruling upheld the law by a final 5-4 vote, with Chief Justice Roberts casting the deciding vote for the majority.  This fact sent the Rabid Right into fits, and Roberts--an erstwhile reliable ally--was castigated in the usual extreme terms as a traitor to the cause.

Then a CBS report, summarized here, made news first of all because it broke the Supreme's usual leakproof silence, indicating that high level clerks or actual Justices did the leaking (my money is on a "conservative" Justice or two, or at least a clerk acting on direct instructions from a Justice.)  It also made news for its assertion that Roberts initially sided with the conservatives in nullifying the law, but made a late switch.

The initial reaction to the article was divided between those expressing skepticism on this point, and general agreement with the implications: that the "conservatives" on this Court are indeed political before they are constitutional judges.  So this decision, as beneficial as it is, may well be the exception that proves the rule.

Though one of the CBS report's points has been questioned in terms of the sequence of the various opinions being written, it suggests that Anthony Kennedy (previously believed to be a swing vote) is strongly ideological, and that he and the other "conservatives" were so upset with Roberts' decision that they ignored his legal points in their opinions--that they essentially dissed him.  In other words, they acted exactly as the ideological Rabid Right are acting now. 

Congressional Republicans are busily misinterpreting the basis for Roberts' decision, and then lying about it.  All of this is further evidence that as the GOP becomes the apparatus of the Rabid Right, it is ceasing to be a political party in the American sense, and more like the Communist Party in the Soviet bloc--striving for one party rule in the Soviet sense: insisting on ideological purity internally, and seeking to dominate and deny rights and legitimacy to any external group.  The pattern of the GOP moving in that direction is pretty clear.  

So it isn't just that the Court is engaged in partisan politics over interpretation of the law, which is already a failing.  And it isn't even that they are ideological, which further distorts their judgments and renders the R5 injudicious and dangerous.  It is that their ideology is as dogmatic as if revealed by their God, in aid of a political party bent on as totalitarian a New Order as the U.S. has ever seen.   If indeed the ACA ruling was the exception that proves the rule (which recent history as well as a lot of evidence from within the opinions convinces me is likely) maybe even because there are a few shreds of integrity left, or if Roberts' example injects some sobriety about the Court's real responsibilities, will be known only by future decisions.  Meanwhile, this election becomes in part a referendum on the future of American democracy. 
 

Judging the Court

In a decision announced Monday, the Supreme Court followed the law on federal responsibility for immigration, supporting a lower court ruling that most of the Arizona law is unconstitutional.  But the Court continued to undermine the very basis of representative democracy by its partisan and ideological doubling down on the Citizens United decision by denying Montana its historic right to regulate political contributions in state elections.

Just how wildly Rabid Right the majority of this Court is can be seen in the amazement of the reaction to their brave decision to forbid mandatory life sentences for children.  And yet Samuel Alito made a spectacle of himself in his angry dissent delivered from the bench.  Of course children should automatically be thrown into prison for life!  Rachel's take on the day's decision gets it right.

When Ruth Bader Ginsberg uttered her cryptic forecast of this week's decisions, she noted that dissents can be important in shaping later policy.  Presumably she wasn' talking about Alito or especially Scalia's demented rant on the Arizona decision.  But absent the Affordable Care Act decision, she may well have meant Justice Breyer's dissent on the Montana decision.  It does not display dazzling reasoning or appreciation for the nuances of the Constitution.  It merely points out that Montana cited actual historical evidence of big money donations leading to years of corruption in the state, whereas the Supreme 5 decided in Citizens United that this was so impossible that corporations must be permitted to spend as much as they wish.  That evidence was the very reason this law was passed--in 1912.  Again, Rachel points out the flaws in their argument that money is "speech."  Everybody has speech, not everybody has that kind of money.   A high school debater making this Court's argument would be laughed off the stage.

 Coupled with the decision last week to limit the "speech" of labor unions, it's a clear ideological and partisan power grab.  The Supremes, beginning with their entirely partisan Bush v. Gore decision that resulted in the Rabid Right almost solid 5 vote majority, are providing one of the major tools to create a one party system, GOPer rule forever: the mountains of cash from those who have it, overwhelmingly corporations supporting those who will vote and advocate the way the corporations want them to, and the billionaires who can throw around the equivalent of many lifetimes of income for most Americans on their pet causes and power grabs. 

The other half is restricting the right to vote. We'll see what contortions the Court 5 go into to help that along.  The partisan intent of those efforts were obvious even before some yahoo GOPer legislator in PA said it out loud.

In my lifetime, there have been worries about the political leanings of various justices, and while they had their points of view, most turned out to be judicious, justifying their opinions with legal argument.  But the wolf finally came. The ideological bent of this Court is so obvious that most legal experts polled agreed that the Affordable Care Act is Constitutional and should be upheld, but a majority also agreed that this Court was not likely to do so.  The judges have been judged as ideological and partisan hacks.

It matters a great deal to a great many people if they destroy health care reform on Thursday.  But even if they don't, it doesn't much matter to their long game.  They can even lose to an incumbent Democratic President, knowing that they can outspend anybody, and keep the bad demographics from voting just enough to never lose the White House again.   And it will take a lot for them to lose Congress and state legislatures, even with the very low approval ratings and the extreme measures they've pushed through.  They're establishing a feudal state in Michigan, and it's not a national scandal, it's not even a blip.

Demography may be destiny in the long run politically, but this Court may well have those 5 votes for a long time, too.  It's going to make the very difficult future unnecessarily more painful for all but a very few.

Ominous

A little story with an ominous warning: Supreme Court Justice Ruth Bader Ginsburg at a speaking engagement warns of the "sharp disagreement rate" on the Court going up in the big decisions to be announced in the next few weeks, including the Affordable Care Act decision.

If that isn't a hint, could this be?  She spoke of the value of dissenting opinions in influencing future legislative changes.

The Daily Tweets

With nonsense that need not be repeated here making all the noise, the real issues with the Supreme Court get an airing from Linda Greenhouse, who I've trusted for years for her reporting and divining of the cases before the Supremes.  The piece is provocatively titled "Embarass the Future."

In Circus News, Little Ricky Sanctimonious is taking a long time coming out of the locker room.  The NY Times reports a confab of conservatives with his campaign, but no outcome (like Ricky or Casino Newt dropping out), but there was an earlier report of several long conversations between the two.

Little Ricky is counting on PA and Texas in May, but Richney has gone ahead of him for the first time in one PA poll, and the politically astute Ed Rendell predicts he'll drop out before the PA primary if he seems likely to lose, because if he wants any future political viability he can't afford to lose his home state, again.

Meanwhile, Joe Klein has a piece on Richie Richney and the "Wounds of Victory."  There are two schools on Richney.  The first says he can still move to the center and remake his image enough to contend in the general, the second says he's stuck with what he's become.  Klein is of the second school: "He seems a figure from the Great Depression, a combination of Daddy Warbucks and Old Man Potter. He celebrates creative destruction at a time when the destruction has been a bit too creative."

Morning Joe is on the record saying that off the record, he hasn't talked to a GOPer pol who believes Richney will win.  The gender gap keeps getting wider, and it may be out of control thanks to GOPers in the states.  Certainly any poll that has President Obama at 50% or above is daunting in itself.  Here's an intriguing analysis, though I don't know how credible it is: even if President Obama's approval rating remains under but near 50%, he's very likely to be reelected.  If it remains where it is now, at 47%, it's an 85% chance.  At 50% it's 99%. 

Personally I'm of the it's still a long time until the election school.  But the enthusiasm of Dems and especially 2008 Obama supporters is firming and growing, while the GOP seems in an angry violent death spiral.  Apart from unforeseen events and strange reactions, that violence is the most dangerous.

Closer

The Darkness--specifically a new Dark Ages--got just a little closer Monday, and gee whiz if it wasn't the U.S. Supreme Court that did it.  As reported in detail by Rachel Maddow, a bureaucratic mistake that the state of New Jersey failed to correct led to police pulling over a man, his pregnant wife and child in his BMW, and arresting him.  The police jailed him for six days, and subjected him to two strip searches, even though what he was arrested for was failure to pay a traffic fine (which he had in fact paid, and had a certificate to prove it.)  He is a black man.  Albert Florence (pictured) sued the state over those strip searches, and today in the Supreme Court, he lost.

  As the New York Times put it, in a 5-4 decision the Court ruled "that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband."  This ruling appears to nullify laws in several states banning this practice, as well as international law.

(Update: comment on the decision from Andrew Sullivan.)

So now police and prison guards are given more of a free hand to abuse prisoners whose skin color--or eye color, or anything--they don't like.  What's a citizen to do?  Well, arm yourself.  Carry a couple of guns everywhere and if somebody looks at you funny--and you're in the right state, at least before the Supreme Court spreads the Shoot First laws to everywhere else--you shoot the black/brown/hippie/federal-looking weirdo, but shoot to kill, cause you don't want a witness arguing against your "I felt threatened" defense.

Though it may seem counterintuitive, the rise of a police state and the rise of armed anarchy really do go together, and that's what we're seeing.  A police state that can spy, jail without trial, harrass and torture with the help of the Supreme Court.  A police state that prevents people from voting, or takes away the power of the people they vote for.  A police state that insists on committing acts of coercion and violence against women, their families, their doctors.  At the same time as suspicious citizens are armed to the teeth, and let loose by the police--as long as they are on the same racial and social side.

This is one reading of what's going on: that this rush towards the Dark Ages is in response to massive fears, mostly by a minority of mostly older whites, and that those fears may partly be of various twisted signs of an apocalyptic future, but most directly right now, in reaction to our black President, and all that he symbolizes to them. 

There are ways to parse each of these separate phenomena as a response to this or that--for example by taking Court opinions at face value.  But by coincidence or by something more sweeping, they are adding up to this.

It's going way beyond partisan politics, although the news media is slow to admit it--they've got jobs to protect, and all that fat income from superpacs and campaigns.  After noting how extremist such a step would be, on Monday President Obama talked about the human cost of the Supreme Court possibily overturning the Affordable Care Act:

“[T]his is not an abstract argument,” Obama added. "People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of pre-existing conditions. The law that is already in place gives 5 million young people health care that wouldn’t otherwise have it.

There are tens of thousands of adults with pre-existing conditions who have health care right now because of this law. Parents don’t have to worry about their children not being able to get health care because they can’t be prevented from getting health care as a consequence of a pre-existing condition.
That’s part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and they’re getting preventive care because of this law. That’s just the part that has already been implemented.

That doesn’t speak to the 30 million people who stand to gain coverage once it is fully implemented in 2014. And I think it is important, and I think the American people understand, and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to insure that people with pre-existing conditions can actually get health care. So there is not only an economic element to this but there is a human element to this."

In the Direction of Darkness

Until now I've resisted joining the media panic regarding oral arguments before the Supreme Court which seemed to suggest 5 of the Justices were set to overturn the Affordable Care Act.  Since the decision is not expected until June, I thought there would be plenty of time for cooler constitutional heads to prevail, and the evident political energy displayed this week would give way to judicial scholarship, which has overwhelmingly supported the constitutionality of the Act and specifically the so-called individual mandate, under the Commerce clause, in the same way that Social Security and Medicare were found constitutional. 

They would also have time to learn more about health care, health insurance and what they mean in the American economy--knowledge which some who studied the questions they asked doubt that they now have.  They would have time to discuss all this, and share what they've learned, what their reasoning is.

But then I saw this piece, which says that they may well make their decision without talking to each other at all, and that the decision will probably be made almost immediately.  Maybe today.   We just won't find out about it until June, in the thick of the pre-conventions presidential campaign. 

So in the heat of this moment, I am obliged to take seriously the prospect that this politicized court will ignore virtually every constitutional scholar's view that the Act easily falls within established law, and essentially roll back 80 years of progress, such as it is.  On the basis of a radically reactionary reinterpretation of the Constitution, this Court could substitute itself for the other two branches of government in a matter that has vast economic and social repercussions. 

The prospect has shocked many commentators, but I will let one speak for all, since E.J. Dionne's column drips with the contempt that this process so far deserves.  He uses the words "judicial dictatorship," and that's the prospect we're facing.  Having overturned the outcome of the 2000 election, and having institutionalized the single greatest threat to electoral democracy in our history with its Citizens United decision, this Supreme Court threatens to take over the government outright.

To do so in a presidential election year would be to make that even more obvious, and would turn the 75% of American who believe that the Court makes its decisions based on politics into 99%.

But the most specific impact will be on the U.S. health care system and the economy.  Gone will be restrictions on denying coverage for preexisting conditions.  Gone will be coverage extended to young adults on their parents policies.  And most of all, gone for a very long time will be the hope that the rank injustices and utter cruelties of health insurance in America will be stopped.

Ezra Klein offers the long-term hope that defeat of this admittedly complex law will lead to a single-payer system, but he doesn't expect that process to even begin for 10 years.  So another generation will have to endure rising costs, declining insurance coverage.  More Americans will go bankrupt paying for overpriced health care.  More American will die because they cannot afford medical care, or even basic insurance.  As Klein writes, "in the decades between here and there, there will be a lot of unnecessary suffering and deaths among the uninsured. That’s the real cost of losing this opportunity to insure 30 million people. And it’s a cost that too often gets swept under the rug in Washington’s handicapping of the political fallout."

And that's before the forces behind this Court and the Paul Ryan budget destroy medical care coverage for the most vulnerable population, older Americans, as they set about hollowing out Medicare until nothing remains of it but a phony name.

Given the challenges this country will face in the near future--those associated with the Climate Crisis in particular--this could be crippling, in what it does and what it portends.  The coming election is really about whether we're propelling ourselves into a new Dark Age, or reaffirming the movement away begun in 2008.  But this Court itself could--with a decision made on this very day--take that into its own hands, and carry this country a giant step in the direction of darkness.

Full Court Press

The Supreme Court began hearing arguments today on the constitutionality of provisions of the Affordable Care Act.  Fully three-quarters of Americans in one poll expect the decision to be based on politics.  Only 17% believe it will be based on law, and one of those cynical pundits suggested that this 17% was delusional.

However, virtually all constitutional experts and the most experienced and knowledgeable journalists agree that Obamacare is constitutional, and that according to the law it isn't even close.  While this court has been overtly political in other key cases, the notorious Citizens United being the most obvious, I saw where one seasoned observer doesn't expect it to be a close vote.  He figures it will be upheld by a vote of 6-3 or even 7-2. 

On political grounds, there is the absurd wrinkle that the individual mandate was a Republican idea at a time when some of these Justices were appointed and approved by Republicans.  (Rachel hammered at the hypocrisy tonight.)

But for all the babble and the demos this week, this ain't the court where the NCAA March Madness plays.  The final score by the Supreme Court  won't be known until the end of June.   

The First

Congratulations to Judge Sonia Sotomayor, confirmed today to be Associate Justice on the U.S. Supreme Court. President Obama's first nominee to the Court, she will be the first Latina to serve on the Court. The Senate confirmed her today with only 8 votes from the Hate, Lies, Violence and White Supremacists Party.

The Justice of Empathy

President Obama speaks frequently about the need for empathy. He did so in outlining the qualities he will be looking for in choosing a new Supreme Court Justice to replace David Souter, who announced that he'd like to retire at the end of the current Court term in June.

Even before he named the usual judicial qualities--respect for the rule of law, deep understanding of the Constitution, President Obama said:

"Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes..."

Obama is likely the first President to repeatedly use the term "empathy." The "pathy" part (from the Greek) is about feeling. The "em" (also from the Greek) in this case means "to cause [one] to be in [another.] Sympathy is close but different, both in practice and in its roots. "Sym" is a prefix similiar to "co-," so it means "with" or "together."

Sometimes the difference is described as: "I feel sympathy for what you are going through." Whereas empathy is more like "I feel what you are going through." Sympathy may be more general, but empathy--while it can lead to wider action--begins with the very specific. As the terms are used, sympathy often implies pity, assuming the superior position of one over another. Empathy implies equality.

Both sympathy and empathy require acts of imagination, but the imaginative identification for empathy is arguably stronger. Empathy often requires the power of story. President Obama reads ten letters from Americans each day, to learn their stories. He renews his empathy.

But often the stories that evoke empathy in many of us require imaginative telling as well as hearing. This is why good storytelling--in dramatic and literary forms--is as important to a sense of justice and a society that values equality as any legislation or social or political action in a democracy. This special kind of dreaming is important to the soul of the future, which must cultivate, value and commit to empathy.

In a recent Times Literary Supplement review of a novel by Nobel Laureate J. M. G. Le Clezio of France, Natasha Lehrer wrote: "If empathy is at the heart of the novelist's undertaking, then there is no doubt that Le Clezio deserves his accolades." This sense that empathy is at the heart of the novelist's undertaking is a salutary thought for all of us, including novelists.