Monday Musings, October Surprise Edition

My vote for 2020 is in …

W.J. Astore

The real October surprise is that there is no surprise. Trump or Biden will win, meaning Wall Street, Big Finance, and the Military-Industrial Complex win. (Biden is on record as saying he would increase defense spending!) All you “little people,” whether you’re for Trump or Biden: you lose.

My dad, born in 1917 and a survivor of the Great Depression, used to remind me you need three things in life: A roof over your head, three square meals, and clothes to keep you warm. (Nowadays, given the high cost of getting sick, I’d add health care coverage.) How sad is it that America may soon face a massive eviction crisis, and is already seeing people hungry in the streets, even as Wall Street booms? (Yes, I know America has had trouble housing and feeding people for decades — and it’s only getting worse.)

Amy Coney Barrett was picked for one reason, and one reason alone: Her mentors and handlers know how she will vote in the future. So much for judicial independence.

When you think about it, there shouldn’t be “liberal” or “conservative” justices. Each justice should interpret the law based on her understanding of it informed by her conscience. If this were true, justices would be more or less unpredictable in their rulings. But the justices are hopelessly politicized, rendering “justice” politicized as well.

Speaking of justice, Amy Coney Barrett is a friend of corporations; she’s also uncertain whether global warming even exists. Does this sound like a person with a strong conscience, someone who will fight for equality under the law?

What does it mean that the U.S. military is still at war in Afghanistan and elsewhere, but that few Members of Congress even attempt to exercise oversight of the same, let alone make an attempt to end these wars?

I got my ballot this weekend. Faced with a choice of voting for Biden and Harris versus Trump and Pence, I wrote in Tulsi Gabbard and Bernie Sanders, in that order. It’s the only way I couldn’t waste my vote.

Tulsi would make a great president. Young, insightful, smart, she’s taken a critical stance against the military-industrial complex and wants to end America’s awful regime-change wars. Bernie would make a terrific vice president. Seasoned, dedicated, he could focus on domestic policy while Tulsi remakes U.S. foreign policy. Imagine if Bernie really could advance his essential policies: Medicare for all, a $15 minimum wage, free college education, relief of student debt, and so on. Gabbard and Sanders are the closest candidates to my positions, so I voted for them.

There are still plenty of good people in the USA, but callousness and cruelty are on the rise. Who knew that as the Covid-19 death toll soars past 200,000 to approach possibly as high as 400,000 by the new year, so many people would just shrug collectively and then consider voting for a man who so disastrously mismanaged the pandemic response? Trump — what a loser!

Speaking of Trump, is he even our president? As near as I can tell, he’s spent most of his presidential days golfing, tweeting, attending rallies, signing statements and holding them up like a child, and traveling to and from his various resorts. America’s next authoritarian autocrat will be far less lazy and spoiled — and far more dangerous to the world.

Even the Law is Dead in America

Amy Coney Barrett (the one not clapping)

W.J. Astore

This snippet just showed up in my email (courtesy of the Boston Globe):

Supreme Court nominee Amy Coney Barrett declared Monday that Americans “deserve an independent Supreme Court that interprets our Constitution and laws as they are written,” encapsulating her conservative approach to the law that has Republicans excited about the prospect of her taking the place of the late Justice Ruth Bader Ginsburg before Election Day.

Now, I know this is coded talk. The idea of a close and literal reading of the U.S. Constitution and related laws is meant to tell conservatives that she is not an activist, that she is not liberal in any way. But it also means that she’s mainly, in a bizarre way, a clerk rather than a judge — if her statement was meant to be the truth, the whole truth, and nothing but the truth. But it isn’t.

Barrett is spouting half-truths, since conservative judges are just as activist as their liberal counterparts on the bench. They simply disguise their activism using terms like literalism, which is “strict” and “conservative” and allegedly in keeping with what the Founders intended, as if we can be mind-readers. And even if we could be mind-readers, hasn’t the world changed a lot in roughly 250 years?

Look, I’m a historian, not a lawyer. I’m no expert on judging the law, but I can view the law in historical terms. And in those terms the law is organic, not static, as is our understanding of it. Put differently, the law should be made and remade for us, not we for the law. Because we’re human, we’re imperfect, the societies we create are imperfect, and so too are the laws we create.

Our goal should always be to form a more perfect union, to grow in understanding and compassion. Such is also true of the law. If all these judges do is to issue rulings simply on what is written in the documents before them, why do we even need a Supreme Court?

A static system of laws based on the writings of men who lived 250 years ago is not only unwise: it’s inhuman. Even the law is dead in America.

Update (10/13/20):

I used “literalist” when “textualist” and “originalist” seem to be the preferred terms for this judicial approach.

But judicial literalism echoes the Biblical literalism that is consistent with this judicial approach: the idea the Bible, like the law, should be read plainly, literally, based on the text, with no changes based on new scholarship.

It’s a mindset, an alleged quest for certainty through “simple” readings, but what it’s really all about is a deference to authority figures in the here-and-now who claim to know how to make these “simple” readings. And when they do, these readings are always in their favor.

Surprise! God favors a conservative patriarchy, just as the law does. Who knew?

Update 2 (10/14/20)

It beggars belief that an educated adult in America would have no firm opinion on climate change. Heck, even Trump has admitted there’s a human component to the same. But Amy Coney Barrett says she has no “firm views” on climate change; meanwhile, her father has been a lawyer with Shell Oil for decades. And a major case involving Shell on climate change is pending before the Supreme Court. Coincidence? See this article by David Sirota & Co.

https://www.dailyposter.com/p/upcoming-scotus-climate-case-involves

What’s sad about these sham senate hearings is how nominees like Kavanaugh and Barrett end up effectively perjuring themselves with their answers. I know: I’m not a lawyer and technically it’s probably not perjury. But they essentially answer questions dishonestly in their quest to be confirmed. Here’s an example:

https://www.theguardian.com/us-news/2020/oct/13/kamala-harris-amy-coney-barrett-senate-hearing

Finally, a friend made two fine points about Barrett. The first is she’s smart with the law; the second is she’s a person of faith. But what kind of smarts, and what kind of faith? Smarts that are limited, uninformed by compassion and an appreciation for the human condition, can be sterile. Faith that is rigid and shaped by a patriarchal church can be hidebound, conveying certainty and a holier-than-thou attitude.

The Pick Is In: Amy Coney Barrett

W.J. Astore

As expected, President Trump has selected Amy Coney Barrett for the Supreme Court. Intellectually, she’s qualified. But any candidate supported strongly by Trump’s evangelical base is suspect. The reason is simple: evangelicals wouldn’t support her if they weren’t confident of her opposition to Roe v. Wade. And Trump has indeed gone on the record as predicting she will be instrumental in overturning it.

Amy Coney Barrett, it’s fair to say, is a conservative Catholic. I can relate to her because into my early 20s I was a church-going Catholic. (I even carried a Catholic study bible to church.) Following the lead of the church, I thought abortion was wrong, and I tended to have a holier-than-thou attitude about it. Except in cases of rape or incest or the life of the mother, I saw no reason to publicly fund abortions. If I recall correctly, I accepted the church’s teaching that life begins at the moment of conception.

My problem was conflating my personal religious beliefs, guided by Catholic dogma, with politics and public policy. Put bluntly, I was mixing religion with politics, as if my religion had all the right answers for all Americans. But I got over it. I met more people of different religions, traveled, read a lot, got my master’s and doctorate (focusing on relations between science and religion in historical terms), and realized my personal religious beliefs should neither intrude nor interfere with the rights and privileges and beliefs of my fellow citizens.

Amy Coney Barrett will doubtless say all the right things at her Senate confirmation hearing. She’ll affirm that her religious beliefs won’t determine or even shape her decisions on the law; she won’t say how she’ll rule on Roe v. Wade, but she’ll affirm that she respects judicial precedent; she’ll affirm she’s a believer in judicial restraint; in brief, she knows the drill at these hearings.

But all this won’t be the full truth. She’s not the dream pick of evangelicals because she’s unbiased and disinterested. They know from her record (and her personal life) she’s a critic of Roe v. Wade. They also know she can be counted on to rule in favor of moneyed interests. For example, if she votes against Obamacare, as her record indicates she will, the richest Americans will see a financial windfall (they will effectively get a substantial tax cut). She can be counted on to deliver for the richest among us as well as for evangelicals and conservative Catholics, else she wouldn’t have been picked to begin with.

Two more items of interest. The conservative Catholic organization she belongs to is rather retrograde, to put it mildly, in arguing for a nuclear family of heterosexuals with the man as the “head” of the family. Homosexuality is seen as aberrational and sinful, which is how I saw it when I was carrying my Catholic study bible around. Again, all the evangelicals who support Barrett know exactly where she stands here. Finally, while being pro-life, she is also a strong supporter of gun rights and the Second Amendment.

So there you have it. Amy Coney Barrett is much like I was when I was in my early 20s. Back then I thought I had a lot of life’s answers right there in my holiest of books, and I was unafraid to suggest that public policy should be informed, if not determined, by my personal religious beliefs. But I grew up. Trump’s evangelical friends are counting on the fact that Barrett remains what she’s always been: a conservative Catholic loyalist whose religious views will very much inform how she rules from the bench.

So, goodbye to Roe v. Wade. Goodbye to Obamacare and health care for millions. Hello to a land in which corporations as “citizens” will have even more power than before. A 6-3 conservative majority on the Supreme Court will say this is justice — until the rest of us say otherwise.

RIP RBG, Advantage GOP

W.J. Astore

This summer I read a really good book: “Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law,” by Jeffrey Rosen. I was impressed by Ginsburg’s clarity, coherence, and especially by her compassion. The Supreme Court and the country have lost a giant.

Now, of course, Mitch McConnell has already vowed a Senate hearing for her replacement prior to the election on November 3rd. His rank hypocrisy and slimy opportunism are eminently predictable. But I really don’t blame Mitch. He’s just doing what swamp creatures do.

No — I blame the Democrats. When Mitch McConnell blocked President Obama’s SCOTUS nominee in 2016, Obama could have done something. There were options. But the Democrats assumed Hillary Clinton would win and she’d get to nominate her first Supreme Court justice, so they caved to Mitch’s obstructionism. That craven strategy got us Donald Trump and Neil Gorsuch. (And, later, the bonus of Brett Kavanaugh.)

Meanwhile, at the lower court levels, Chuck Schumer in the Senate has served as a rubber stamp for Mitch McConnell’s remake of the courts with ultra-conservative judges. Schumer, it must be said, is basically doing the bidding of his masters in the donor class, who are more than happy to see a large number of pro-business, anti-regulatory, judges being appointed to various federal courts.

With the death of Ruth Bader Ginsburg, the Republicans will doubtless nominate someone who’s the polar opposite of RBG. Someone without much compassion, a partisan hack no doubt, someone dedicated to overturning Roe v. Wade, even though the nominee will use the usual weasel words about respecting judicial precedent.

RBG’s death is a major blow, not only because we lost a great justice and an admirable person, but because it will unleash the Republicans to do their worst even as the Democrats will once again reveal their pusillanimity in the face of determined opposition.

If only more Democrats had the spine of RBG. Rest in peace, Ruth. You did all that you could to make this country a better place.

No Money, No Speech, No Say

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Have Money, Will Rule

W.J. Astore

When in January 2010 the Supreme Court ruled that money is speech and corporations are citizens, our democracy (or, if you prefer, our representative republic) took a serious hit.  Since then, we’ve witnessed America’s ongoing transition to an oligarchy, and an increasingly militarized and authoritarian one at that.

This was obvious even to me when the Supreme Court rendered its Citizens United decision in favor of corporations.  Right after that decision, I wrote this article for Truthout, which I’m re-posting below.  What do you think, readers?

Corporations Are Citizens – What Are We?
January 24, 2010

This week’s Supreme Court ruling that corporations are protected by “free speech” rights and can contribute enormous sums of money to influence elections is a de jure endorsement of the de facto dominance of corporations over our lives. Indeed, corporations are the new citizens of this country, and ordinary Americans, who used to be known as “citizens,” now fall into three categories: consumers, warriors and prisoners.

Think about it. Perhaps you’ve noticed, as a friend of mine has, that the term “citizen” has largely disappeared from our public and political discourse. And what term has taken its place? Consumer. That’s our new role: not to exercise our rights as citizens (perish the thought, that’s for corporations to do!), but to exercise our credit cards as consumers. Here one might recall President George W. Bush’s inspiring words to Americans after 9-11 to “go shopping” and to visit Disney.

Think again of our regulatory agencies like the FDA or SEC. They no longer take action to protect us as “citizens.” Rather, they act to safeguard the confidence of “consumers.” And apparently the only news that’s worthy of note is that which affects us as consumers.

As one-dimensional “consumers,” we’ve been reduced to obedient eunuchs in thrall to the economy. Our sole purpose is to keep buying and spending. Corporations, meanwhile, are the citizen-activists in our politics, with the voting and speech rights to match their status.

At the same time we’ve reduced citizens to consumers, we’ve reduced citizen-soldiers to “warriors” or “warfighters.” The citizen-soldier of World War II did his duty in the military, but his main goal was to come home, regain his civilian job, and enjoy the freedoms and rights of American citizenship. Today, our military encourages a “warrior” mentality: a narrow-minded professionalism that emphasizes warfighting skills over citizenship and civic duty.

And if that’s not disturbing enough, think of our military’s ever-increasing reliance on private military contractors or mercenaries.

The final category of American is all-too-obvious: prisoner. No country in the modern industrialized world incarcerates more of its citizens than the United States. More than 7.3 million Americans currently languish somewhere in our prison system. Our only hope, apparently, for a decline in prison population is the sheer expense to states of caring and feeding all these “offenders.”

There you have it. Corporations are our new citizens. And you? If you’re lucky, you get to make a choice: consumer, warrior or prisoner. Which will it be?

An Open Letter to Senator Collins on Brett Kavanaugh

Kav
Kavanaugh brandishes a worn “pocket” copy of the U.S. Constitution.  Are you reassured?

W.J. Astore

Brett Kavanaugh’s elevation to the Supreme Court is a done deal.  Critical to his elevation was the support given to him by Senator Susan Collins of Maine.  My wife and I watched her speech yesterday, during which she praised Judge Kavanaugh for his demeanor and judicial record, affirming that he will uphold Roe v. Wade since it is “settled” law.  Collins also affirmed that Kavanaugh’s accuser, Dr. Christine Blasey Ford, experienced some form of sexual assault, but not at the hands of Kavanaugh, as there was no corroborating evidence.  In short, even though Ford affirmed under oath that she was 100% certain that a 17-year-old Kavanaugh attacked her 36 years ago, Collins chose not to credit her account as truthful or accurate.

In response to Senator Collins’s speech in praise of Kavanaugh, I wrote the following short letter to her.  Let me say this: for the good of our country, I hope I’m wrong and Senator Collins is right.

Letter to Senator Collins

Dear Senator Collins: My wife and I respectfully ask you how a 15-year-old girl misidentifies her attacker when he’s on top of her and putting his hand over her mouth so she can’t scream.

As near as we can tell, Christine Blasey Ford had no reason to lie.  Her life has been turned upside down.  Judge Kavanaugh, however, had reasons to lie.  He has a lifetime job at the highest level of his profession that hinges on denying Dr. Ford’s allegations.

We also ask you whether you approve of Judge Kavanaugh’s belligerence, his lies before the Senate committee, and his hyper-partisan attacks on the Democrats — your colleagues, even if they are on the other side.

We think you will regret the “yes” vote for Judge Kavanaugh.  He is not the man you think he is.  And we almost guarantee he will vote to overturn Roe v. Wade.

Brett Kavanaugh Should Withdraw

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The needs of the many outweigh the needs of the few — or the one.

W.J. Astore

For the good of the country, Brett Kavanaugh should withdraw his name as a nominee to the Supreme Court.

Supreme Court justices are public servants.  They need to appear as unbiased and objective as possible.  Their reputations should be as unsullied as possible.  They should not be known for partisanship.  Their public temperament should be sober, serious, and balanced, while making room for empathy and compassion and humility.

Judge Kavanaugh’s reputation, fairly or unfairly, is now sullied.  A quick and limited FBI investigation will not remove the taint surrounding his name.  Based upon last Thursday’s hearing and his own testimony, Kavanaugh stood revealed as a hyper-partisan associated with a particular brand of hard-right conservatism.  Instead of sober and balanced, he came across as belligerent, angry, self-righteous, and self-pitying.  He evaded questions as he demanded answers of senators questioning him.  When he did deign to answer, his responses were often unconvincing.

Put bluntly, Kavanaugh failed to display the demeanor Americans expect of any judge, let alone a judge with a lifetime appointment to America’s highest court.

Judge Kavanaugh says he’s a fighter who will never quit.  Yet there comes a time to withdraw from a fight when that withdrawal is for the greater good of the country.

An oft-quoted line from the “Star Trek” movies is Spock’s explanation of why he sacrifices his life to save the ship.  The needs of the many, Spock says, outweigh the needs of the few — or the one.  Spock’s rule applies here.  Kavanaugh’s appointment to the court will further divide this country along partisan and gender lines.  It will be interpreted as a slap in the face to sufferers of sexual assault.  It will cause many more Americans to lose faith in the Supreme Court — this at a time when Americans already express little faith in Congress, and highly polarized opinions of the president.

The Supreme Court’s reputation is more important than any one man.  The needs of the country outweigh the needs of the few who vociferously support him, or the one.

For the reputation of the court, and for the unity of our country, Kavanaugh should withdraw.

Update (10/2/18): There appear to be only four “swing” senators: Collins, Flake, Manchin, and Murkowski.  All the other senators are reportedly voting along party lines.  I’ve been sending notes to these four “swing” senators to vote “no” on Kavanaugh.  Here is the note I sent to them this morning:

Dear Senator XXX: Why vote for Brett Kavanaugh?

It’s a serious question. A vote for him will divide the country further. It will reduce our country’s faith in the Supreme Court as a fair-minded and non-partisan institution. It will be interpreted by many as a slap in the face to women, and especially to women brave enough to come forward to share their horrific stories of sexual assault.

Why this flawed man, and no other? As a retired military officer who voted for a third-party candidate in 2016 (though I voted for Reagan in 1984), it makes no sense to me. Unless it’s all about “winning” for the Republican party, but even that makes little sense to me. Country, after all, comes before party. I learned that as a military officer.

Put country first. Please vote “no.”

The Case of Brett Kavanaugh

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W.J. Astore

President Trump’s latest nominee for the Supreme Court, Brett Kavanaugh, has been accused of sexual assault as a teenager.  Of course, I have no idea if Kavanaugh is guilty of this charge, and I doubt if such a charge could be proved beyond a reasonable doubt in a court of law.  Kavanaugh’s accuser (her name is Christine Blasey Ford) says he was “stumbling drunk” when he assaulted her; Kavanaugh denies the accusation.  Indeed, he claims he wasn’t even at the party when the alleged assault occurred.

Supporters of Kavanaugh are already dismissive of the accuser and disparage her motives for coming forward (consider this mocking and reprehensible post by Donald Trump Jr.).  Naturally, those who are opposed to Kavanaugh are motivated by their animosity against him to believe the accuser even before she’s testified.  So it goes in hyper-partisan America.

A hearing is scheduled for Monday, September 24th; both Kavanaugh and his accuser will testify.  I imagine both will seem credible.  And people watching will probably see what they already believe.

I’m opposed to Kavanaugh’s nomination, but I was opposed before this assault accusation was revealed.  My opposition is idiosyncratic.  To me, Kavanaugh comes across as a toady to men in power.  He praised Trump for the allegedly exhaustive process that led to his nomination.  He’s led a life of insularity and privilege, from expensive private prep schools to the Ivy League (Yale and Yale Law School) to the usual clerkships and appointments.  Strong political partisanship in favor of Republicans has characterized much of his career in the law.  From his Wiki biography:

As an attorney working for Ken Starr, Kavanaugh played a lead role in drafting the Starr Report, which urged the impeachment of President Bill Clinton. Kavanaugh led the investigation into the suicide of Clinton aide Vince Foster. After the 2000 U.S. presidential election (in which Kavanaugh worked for the George W. Bush campaign in the Florida recount), Kavanaugh joined the administration as White House Staff Secretary and was a central figure in its efforts to identify and confirm judicial nominees.

His hyper-partisanship and especially his toadying before Trump make him unsuitable as a Supreme Court justice.  Indeed, Trump seems to have selected him over other conservative candidates because Kavanaugh believes a sitting president can’t or shouldn’t be indicted, a stance that’s quite attractive to Trump, who prefers spineless yes-men.

We need Supreme Court justices who uphold the law without being deferential to the powerful.  We further need justices with more than a measure of compassion for the weak.  From all I’ve read and seen, Kavanaugh won’t be that kind of justice, so I’m opposed to his nomination.

Next Monday’s hearing, and Kavanaugh’s ultimate fate, will likely further divide America along political and gender lines.  Once again, sadly, the Trump administration has found fresh ways to divide rather than to unite us.

Update (9/19): The Monday hearing is in jeopardy as Kavanaugh’s accuser calls for an FBI investigation.  Meanwhile, Kavanaugh’s supporters have come up with a strategy to defuse the sexual assault charge, as reported in the New York Times today:

Mr. Trump’s advisers and Judge Kavanaugh’s allies appeared to be settling on a strategy of defending him by suggesting that this must be a case of mistaken identity. Under the emerging strategy, Judge Kavanaugh’s defenders would accept that Dr. Blasey was in fact assaulted but would insist that it must have been by someone other than Judge Kavanaugh because he denied it.

The approach reflects the shifting reality of the #MeToo movement when it has become politically perilous to directly attack the credibility of women who come forward to tell their stories. By suggesting that perhaps there was confusion after more than 30 years, White House allies said that they could offer wavering Republicans whose votes are critical for his confirmation another explanation for the he-said-she-said conflict without tearing down Dr. Blasey.

You might call this the “It wasn’t me” strategy.

What Should Democrats Do About Gorsuch?

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W.J. Astore

What should Democrats do about Neil Gorsuch?  They should filibuster.

The reason is obvious: Merrick Garland, President Obama’s eminently qualified and moderate nominee for the Supreme Court, never even got a hearing from Republicans. Unlike obstructionist Republicans, the official party of no, a party that with a clear majority can’t even pass its own wealth/health care plan, the Democrats gave Gorsuch a fair hearing. It’s now time to oppose him.  To do anything else would be an admission of gutlessness.

Democrats, at the risk of stating the obvious: Republicans are not going to respect your sense of fair play, your bipartisanship, your willingness to compromise.  Just keep one image in mind: Republicans are Lucy holding the football, and you are Charlie Brown.  No matter how many times Lucy tells you she’s going to let you kick the ball, she’s always going to pull it away, betraying her promise while making snide comments about your gullibility.

There’s another reason not to vote for Gorsuch: the man lacks compassion.  Sure, he’s urbane, intelligent, and well-read.  He knows his way around the law.  But he seems to believe humans were made for the law, rather than the law being made for and by us.

The higher a judge rises in our system of justice, the higher the premium on compassion. The law is not a bunch of words and statutes and rulings to be adjudicated soullessly while citing “original intent,” whatever that means.  In certain rulings, like the “frozen trucker” case, Gorsuch came across as soulless, allowing strict interpretations to trump common humanity.

I’m a historian, not a lawyer, so my view of the law is somewhat different from the experts.  I see it as an artifact of history, a fluid substance, an imperfect product of imperfect humans.  That doesn’t mean it’s not vitally important; that it doesn’t deserve our respect and our protection.  But, again, the law exists for us: to uphold life, liberty, and the pursuit of happiness.  The law shouldn’t exist solely for the powerful, for corporations, for the government, for the richest.

Justice shouldn’t be blind.  Justice requires judges to use all their senses, and not just those, but their hearts and souls as well.  It’s not enough for a judge to be learned; he or she should have empathy, a strong sense of fairness, and, again, compassion.

Gorsuch is a fan of Dickens.  While listening to him, it was difficult for me to tell whether he was Scrooge before his moral awakening, or Scrooge after it.  He came across more as the Scrooge of “Are there no prisons, no workhouses,” rather than the Scrooge who embraces charity and who freely gives to those in need.

So, Democrats, your direction should be clear: In the name of Merrick Garland, and in the cause of compassion, resist Gorsuch.  For even if you naively choose to support him, in the name of highminded fairness, Lucy will always be there to pull the football away, laughing all the while at your spineless gullibility.