How long, O Lord?

I had no intent to post today; it promises to be a busy week ahead.  Focused as I am on the upcoming election, and as numb as I have apparently become to the endless stream of unfeeling actions perpetrated by Mr. Trump and his cohort, the instance of Trump Administration callousness revealed this week almost failed to embed with me:  that in 2017, in a brutal attempt to discourage Latinos from seeking to immigrate to our country, our government forcibly separated over 500 children from their parents at our southern border – and failed to keep records which would enable it to reunite the families.  The Administration is now unable to locate the parents.  The children remain in cages that during last week’s debate, President Trump grotesquely defended – really – as “so clean.”

Many that follow these pages are parents.  I suspect that all that read these posts cherish the love they received from their parents.  These people, who came seeking refuge from us, were and are being treated like animals.

What brought me back was the first reading in today’s Mass, a familiar one:

“Thus says the Lord:

‘You shall not molest or oppress an alien, for you were once aliens yourself in the land of Egypt.  You shall not wrong any widow or orphan.  If ever you wrong them and they cry out to me, I will surely hear their cry.  My wrath will flare up, and I will kill you with the sword; then your own wives will be widows, and your children orphans.’”

Exodus 22: 20 – 23

Not long ago, Rev. James Altman, a pastor in La Crosse, Wisconsin, released a viral video in which he declared, “You cannot be Catholic and be a Democrat,” and has reportedly called liberals “fascist bullies” acting “just like Hitler’s Nazis did.” He believes that Catholics must support Republicans and Mr. Trump because of their opposition to abortion.

I’m confident that Fr. Altman has reconciled today’s Exodus passage with his vehement support of Mr. Trump.  I cannot.  That said, I cannot presume to judge; he is responsible to the Almighty for his soul, as I am for mine.

Today’s Exodus passage brought other Scripture verses to mind for me:

“How long, O Lord?  Will you utterly forget me?  How long will you hide your face from me?  How long shall I harbor sorrow in my soul, grief in my heart day after day?  How long will my enemy triumph over me?  Look, answer me, O Lord, my God!”

Psalms 13: 1-2      

May we receive the means to aid those now suffering at our hands.

Truly Random October Monday Thoughts

If polls are to be believed, President Trump’s standing has fallen sharply among seniors.  Commentators have generally attributed Mr. Trump’s apparent loss of senior support to his mishandling of our Coronavirus response.  If he has indeed lost senior support, I wonder whether it doesn’t have more meaning than that:  while COVID has brought into stark relief Mr. Trump’s incompetence and disregard for seniors’ safety, it has also caused seniors to confront the sheer lunacy of his presidency.  Seniors remember when the president, even if you disagreed with his particular policies, at least … made sense.  While Bernie, Elizabeth, or Pete might have conjured up fears of continued craziness, Joe Biden offers the prospect of … sanity.  Even if some fellow seniors don’t share my deep abhorrence for the president’s lies, bullying, racism, and dictatorial inclinations, I suspect that many share my attendant wish for a stop to the noise and the craziness.

I’m fascinated that in recent days the Republicans have tried to resurrect their allegations about … wait for it … former U.S. Secretary of State Hillary Clinton.  Mr. Trump has spoken about it; Vice President Pence threw in references to Sec. Clinton near the end of the Vice Presidential debate; I saw one clip in which Secretary of State Mike Pompeo assured us (complete with sardonic smile, almost diabolically rubbing his hands in glee) that he has Ms. Clinton’s allegedly deleted emails and will tell us more before the election.  This is obviously designed to elicit the Pavlovian response from the Republican faithful.  We ourselves have family members (of both genders) who get terribly exercised at the very mention of Ms. Clinton.  My reaction to Mr. Pompeo’s claim:  unless he produces a validated Clinton email which says, “I told Joe Biden that I was intentionally violating email security protocols and exposing our most sensitive information to Russia and China, and Joe said, ‘Great – Go for it!’”, what swing voter – upon whose vote the outcome of the presidential election will rest — cares anymore?  While she’s perhaps not the most likeable, I have never understood the Republican rabid Hillary Clinton fixation.  As First Lady and then Secretary of State, her responsibility was to support the policies of the sitting President.  Has there ever been a more inept national politician?  With all of the Clintons’ institutional advantages in 2008, how does one lose to a 2-year Illinois U.S. Senator, no matter how charismatic he is?  In 2016, how does one lose to … Donald Trump?  Let her rest in peace.

I haven’t been able to muster up that much interest in Judge Amy Coney Barrett’s Senate confirmation hearings or Judge Barrett’s impending ascension to the Supreme Court.  As all that read these pages are aware, I’m terribly troubled by the Republicans’ hypocrisy in thwarting Judge Garland’s Supreme Court nomination while pushing Judge Barrett’s; to me, it’s not about what the Senate had the right to do or not do, it’s about partisan Senate Republicans’ failure to honorably do what they should have done.  That said, it’s clear that Judge Barrett seems overwhelmingly likely to be confirmed.  Since she is undisputedly eminently qualified (albeit staunchly conservative) and apparently has no objective disqualifying factors such as drug addiction, I believe she should be.  I will nonetheless venture that if Mr. Biden wins the election and the Democrats gain control of the Senate, the liberal angst about Ms. Barrett’s ascension is overwrought.  Demographic and cultural mores sweeping this nation will not be held back by six conservative Justices, including the three Trump appointees, frantically trying to hold back the tide.  Public perception of the Court is no longer of robed oracles on pedestals as it was when President Franklin Roosevelt proposed his court packing plan in 1937.  Although Mr. Roosevelt’s initiative resulted in the most stinging political defeat of his career [although it didn’t stop him from being re-elected – twice – thereafter ;)], some scholars suggest that Mr. Roosevelt’s legislative overture caused “the switch in time that save nine” – conservative Justice Owen Roberts’ sudden joining with the liberal Justices to uphold New Deal positions.  I predict that independent voter support for court packing will mushroom if the Affordable Care Act is struck down or Roe v. Wade overruled.  The current conservative Justices will ultimately either accommodate their rulings to changing American sensibilities, be neutered by a legislative increase in Supreme Court seats, or depart the Court via “voluntary” retirement or impeachment.  On the other hand, if Mr. Trump is re-elected, a conservative Supreme Court majority will be among the lesser of our problems.

As the polls indicate – whether or not accurately – a potential “Blue Wave” in unlikely places such as Texas and Georgia, I wonder whether former U.S. TX Rep. Beto O’Rourke and former GA State Rep. Stacey Abrams have experienced pangs about rejecting the Democratic National Committee’s repeated requests that they run for the U.S. Senate in their respective states in 2020.  While their reluctance earlier this year was understandable – both had come off close defeats in a non-presidential election year, and presumably didn’t like their electoral prospects against apparently popular incumbent Senators in a presidential election year – arguably the enthusiasm each engendered in their narrow 2018 defeats, against a backdrop of a seemingly dramatic shift in voter sentiment brought about by Mr. Trump, might in hindsight have given either or both of them a springboard to victory.  Two years ago, everyone knew of Mr. O’Rourke and Ms. Abrams; how many can name the current Texas and Georgia Democratic Senate candidates?

A good friend recently sent me the following link to an article reporting upon the State of Wisconsin’s ongoing negotiations with Foxconn.  The arrangement touted with such fanfare in June, 2018, by President Trump, then Speaker of the U.S. House of Representatives Paul Ryan, and then WI Gov. Scott Walker is — and there is no kinder way to accurately describe it — a debacle.

https://www.theverge.com/2020/10/12/21512638/wisconsin-foxconn-tax-subsidies-lcd-factory-rejected?mkt_tok=eyJpIjoiWW1VeE1XRmlOVFprWVRWaCIsInQiOiJGVG0rSjJOdHdGelJqVjR3b2d4SWpOVGVETVRqVkVRayt1WlpQWnU4R0M5RUkxNXZUbFhSUkVSajB6RitGUEdRbkZmMlQ0RTE5a2pRaTk0QlVpOUgxRXhreG1EaThQSGtURTZ1ZEMzUzlUV25xYmIrYU1qWHFKWlBZcW5VXC83SXcifQ%3D%3D

All reports indicate that we’re going in the wrong direction on COVID.  Be careful.

I Cede the Rest of My Time: Redux

[Two caveats:

As anyone that reads these pages is aware, my concern isn’t that President Trump has nominated Judge Barrett, or that she is likely to be confirmed in the Senate, but that President Obama’s nominee, Judge Garland, wasn’t – for purely partisan reasons.   The purpose of much of what follows would simply be to suggest to persuadable viewers that the Republicans are acting in an unfairly partisan manner, hopefully nudging them to vote against the GOP on November 3.

Judge Barrett would obviously waffle on a number of the questions below in a real session; what I offer is what I suggest that she would say if she was being candid.  If any of the learned legal eyes that read these pages disagree with my construction of either Roe or Heller, we can debate our interpretations over a refresher in healthier times.  : ) ]

Thank you, Mr. Chairman.

Judge Barrett, is consistency important in a Judge?

“Yes.”

Is consistency in judicial rulings important?

“Generally, yes.”

Is it fair to say that your philosophy of Constitutional interpretation is much like that of the late Justice Scalia?

“Yes.”

I want to read comments I understand that you made on CBSN on February 15, 2016, two days after the passing of Justice Scalia:

“Kennedy is a moderate Republican and he replaced a moderate Republican, Powell.  We’re talking about Justice Scalia, the staunchest conservative on the Court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power on the Court.  It’s not a lateral move.  And finally the reality is that we live in a different time.  Confirmation hearings have gotten far more contentious.  I just don’t think we live in the same kind of time.  I think in sum, the President has the power to nominate and the Senate has the power to act or not and I don’t think either one of them can claim there’s a rule governing one way or the other.”  

Does that sound like you?

“Yes.”

I don’t want to put words in your mouth; in your remarks to CBSN, were you not indicating that you thought Justices Powell and Kennedy had similar judicial philosophies?

“Yes.”

And you were suggesting that when Justice Kennedy replaced Justice Powell, there wasn’t much shift in what you called “the balance of power” on the Supreme Court?

“Yes.”

Now despite their well-known friendship, Justices Scalia and Ginsburg had markedly different – in many areas almost polar opposite — judicial philosophies, did they not?

“Yes.”

In your comments to CBSN after Justice Scalia’s death, as a judicial conservative, you were expressing concern that President Obama’s nominee might be liberal — might, in your words, “dramatically flip the balance of power on the Court” — were you not?

“Yes.” 

Since you are an adherent of Justice Scalia’s philosophy, and notwithstanding your undoubted respect for Justice Ginsburg as a person and a jurist, won’t your confirmation — using your words — “constitute the dramatic flip in the balance on the Court” that you yourself warned against four years ago?

[When she waffles: “To give an answer like that, you obviously agree with my wife that I’m even dumber than I look.  I’ll move on.”]

Is it fair to say that at times Justice Scalia referred to his philosophy as “Originalism” – interpreting the Constitution according to what the Founding Fathers intended – and “Textualism” – a philosophy under which Judges should interpret the Constitution and laws as they are written?

“Again, generally, yes.”

Let’s look at the President’s Constitutional power to nominate and appoint federal judges and the Senate’s power to advise and consent on such nominees.  Is there any time frame set forth in the Constitution in which the Executive and Legislative branches need to exercise their respective powers?

“No.”

Do you believe that the Constitution inherently includes an obligation upon the Executive and Legislative Branches to act within … a “reasonable time”?

“No.  As I said, there is no rule governing their behavior one way or the other.”

Is it therefore your opinion that the Founding Fathers intended that either the Article I or Article II Branches – the President by failing to nominate judges, or the Senate by failing to consent to the President’s appointments – each in the last analysis has the power to extinguish the Judicial Branch?

[Don’t care what she says.]

Let’s look at this from another way.  When Justice Scalia passed away in 2016, President Obama, a Democrat, nominated Judge Merrick Garland, and Sen. McConnell, a Republican, refused to allow hearings to go forward on Judge Garland’s nomination, declaring that the American people should have a voice in the next Supreme Court Justice through the 2016 Election, because they might elect a Republican.  From general news accounts, is that your understanding?

“Yes.”

Do you personally know of any reason that would have made Judge Garland professionally or personally unfit for the Court?

“No.”

Now, four years later, in another Election Year, President Trump, a Republican, has nominated you, and Senator McConnell has allowed these hearings to proceed, when he didn’t with Judge Garland.  His stated rationale is that the President and Senate are controlled by the same political party, where they weren’t in 2016.  Have you heard that?

“Yes.”

I understand that you are a member of the Federalist Society. You are obviously familiar with the Federalist?

“Yes.”

Now I have the book and you don’t, but does this sound like what you recall Alexander Hamilton writing in Federalist No 1?:  Quote, “Nothing could be more ill-judged than that intolerant spirit which has at all times characterized political parties?”

“Yes.”

Admittedly omitting some phrases, does this sound like the thrust of what you remember James Madison writing in Federalist No. 10?:  Quote, “A zeal for different opinions concerning religion, concerning government, and many other points; … an attachment to different leaders ambitiously contending for pre-eminence and power; … have … divided mankind into parties, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good”?

“Yes.”

Does the word, “party,” in the context of “political parties,” appear anywhere in the Constitution?

“No.”

Would you agree that one – perhaps even an Originalist — might reasonably infer that at least Mr. Hamilton and Mr. Madison would have had concerns about Sen. McConnell’s rationale in proceeding with your nomination hearings while refusing to schedule Judge Garland’s?

“I couldn’t say.”

I’m sure you couldn’t.  Let’s move on very briefly to Roe v. Wade.  Justice Blackmun wrote in the opinion, “It is undisputed that at common law, abortion performed before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense,” “That prior to quickening” – I’m condensing a bit here – “the fetus was to be considered part of the mother,” and “The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.” 

Do you agree that the “Common Law” referred to by Justice Blackmun would have been the prevailing state of the law at the time the Constitution was written?

“Yes.”

In District of Columbia v. Heller, your mentor, Justice Scalia, wrote:  “Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  He indicated, “We also recognize another important limitation on the right to keep and carry arms.  Miller [United States v. Miller] said, as we have explained, that the sort of weapons protected were those ‘in common use at the time.’  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”  Finally, he stated, “It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause….But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

Judge Barrett, you may not know a lot more about the innards of weapons than I do, but I believe that in the classes of weaponry, the M-16s Justice Scalia referred to in Heller are akin to today’s AR-15s.  Is that generally your understanding?

“Yes.”

Can we agree that AR-15s have been the weapon of choice for perpetrators of a number of the mass shootings that our people have suffered in this century?

“Yes.”

And that AR-15s were carried by a number of the men that entered the Michigan legislature last spring to protest the Michigan Governor’s policies to address the Coronavirus?

“Yes.”

Have you heard reports that at least one of the men that demonstrated in the Michigan legislature has been arrested by law enforcement on the charge of engaging in a plot to kidnap the Michigan Governor?

“Yes.”  

Now, Justice Scalia simply stated in Heller that the Second Amendment right to bear arms is not unlimited; the rest is admittedly dicta.  Even so, do you agree that one could reasonably infer that he suggested that it might be Constitutionally permissible under the Second Amendment to – his word – ban weapons such as M-16s?

“Yes.”

Do you agree with Justice Scalia that an American citizen’s Second Amendment right to bear arms is not unlimited?

“Yes.”

Finally – are you aware that President Trump has recently said, “I think this” – meaning disputes relating to the presidential election about three weeks away – “will end up in the Supreme Court, and I think it’s very important that we have nine Justices”?

“I am.”

You’re excited by the opportunity to serve on the Supreme Court, are you not?

“Yes.”

And you are thankful to President Trump that of all the potential Supreme Court nominees he has publicly listed over the years, at this particular time he has chosen to nominate you?

“Of course.”

Thank you.  Mr. Chairman, I cede the rest of my time.

Early October Impressions

Until Monday evening, the media froth about incomplete, inconsistent, and/or misleading information being provided by the Trump Administration about President Trump’s Coronavirus condition and treatment struck me as unhelpful harrumphing.  My reaction, despite my deep antipathy toward Mr. Trump’s promiscuous lying, was that at times, Presidents lie about their health; it is sometimes actually necessary for national security or to avoid panic.  There are many examples:  Grover Cleveland’s surgically-removed cancerous upper jaw (emphatically denied at the time); Woodrow Wilson’s undisclosed debilitating 1919 stroke (rendering Mrs. Wilson the nation’s de facto President for over a year); Franklin Roosevelt’s (undisclosed) congestive heart failure during the last stages of World War II; John Kennedy’s Addison’s Disease (a potentially dangerous condition, vigorously denied at the time); and the extremely critical nature of Ronald Reagan’s condition (hidden at the time) in the hours immediately after he was shot by John Hinckley, Jr.

Now, to Monday night.  Momentarily put aside that the President and his cohort suffer from COVID due to his hubris and callous disregard.  At 74, overweight, appearing to suffer from COVID’s adverse pulmonary effects and perhaps other secondary indicia, he presumably remains an ill man.  Nonetheless, by taking an aggressive regime of drugs, putting on his orange makeup, getting on his feet and into suit and tie, and walking unaided from the Walter Reed Hospital entrance to Marine One and from the helicopter up the stairs to the White House residence, he showed a level of sheer determination to keep fighting – to not give up on the election or himself – that indicates that the Biden Campaign had best keep fighting, because Mr. Trump will never quit. 

Two other comments about Monday night, which I offer hesitatingly only because I dislike stating the glaringly obvious.  Mr. Trump’s tweets and video graphed comments, “Don’t be afraid of Covid [sic].  Don’t let it dominate your life,” while transparently intended to further his own political interest and cheered by his rabid base, are, first and foremost, both patently monstrous given their potential to cause his supporters to risk severe illness or death and shockingly oblivious to the losses suffered by millions of Americans due to the virus.  Second, in an election that will be decided by the moderate middle, the Biden Campaign, while it should not underestimate Mr. Trump’s will, can take heart from his colossal political stupidity.  I suspect that our 4-year-old grandson is able to recognize (our 3-year-old grandson may be a bit too young) that it is absurd for the President to urge Americans not to be afraid of a disease that has killed over 200,000 of us in seven months.

In the Trump alternate universe in which we are currently trapped, weeks become months; it is hard to believe that the President’s grotesque debate performance occurred only a week ago.  I expressed concern in an earlier note that Mr. Trump’s COVID diagnosis might arrest the accelerating voter sentiment toward former Vice President Joe Biden that had appeared in the 48 hours following the debate; at least as of today, those fears appear to have been unfounded.  If FiveThirtyEight.com’s numbers are credible, Mr. Biden’s lead has notably widened during the past week in all six swing states of Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin; the race is a dead heat in Ohio.  Which brings us to tonight’s debate.

Over the past several years, these pages have disparaged Vice President Mike Pence – or if you prefer, Vice President Pantywaist, Milquetoast Mike, His Sycophancy, or His Somnolency — differently, but almost as consistently, as they have President Trump.  At the same time, Mr. Biden chose U.S. CA Sen. Kamala Harris to run with him on the Democratic ticket not only because of her gender and ethnicity, but because she projected to be a strong fighter in an election expected to be a ferociously contentious contest.  I have seen various on-air liberal activists urging Sen. Harris to “take it to” Mr. Pence tonight.  I couldn’t disagree any more strongly. To use a boxing reference, if I was in Ms. Harris’ corner, I’d be advising:  “Stay away from this guy.  He’s dangerous.  Four years ago, Tim Kaine thought Pence would be an easy mark, and Pence destroyed him – simply by looking like a sane restraint on Trump.  His reassuring Hoosier debate performance may have eked out the tiny 2016 margins in Pennsylvania, Michigan, and Wisconsin.  There’s nothing you can throw at him that he hasn’t seen.  As every good trial lawyer knows:  when the judge is clearly preparing to rule in your favor, stay out of the way.  Take a cue from Joe:  You don’t need to win this bout to win the election; you simply need not to lose it.

Given the age of the two presidential candidates, the voters will be looking at Mr. Pence and Ms. Harris as potential Presidents.  Ms. Harris needs to maintain a calm demeanor; reject any attempt to label herself, or those around Mr. Biden, as radical leftists (including credible explanations for the discrepancies between her more-liberal presidential campaign positions and Mr. Biden’s); decry violence in the streets by right and left; point out the President’s and Mr. Pence’s many misstatements and missteps on the Coronavirus, and that the President has shut down negotiations on a Coronavirus relief package that would aid millions of Americans (or not?); take the easy shot that the President is urging Americans not to be afraid of a virus that has claimed over 200,000 Americans; emphasize the damage that Judge Amy Coney Barrett’s elevation to the Supreme Court could do to health care; duck any questions about packing the Supreme Court if Judge Barrett is confirmed by the Republican Senate, while lamenting the Republicans’ unfairness in proceeding with Ms. Barrett’s nomination after refusing to consider President Obama’s nomination of Judge Merrick Garland; be ready on foreign policy, where after four years in office Mr. Pence is more deeply versed; maintain a tone of disappointment, not stridence, in criticizing Messrs. Trump and Pence; and get off the stage.      

Tonight, we’ll see.  Stay safe.

Trump Has Convinced Me

A close friend, no fan of President Trump, texted me a few days ago, and said in part:

“As you know, I’m voting in person.  It’s not a political statement, but a practical statement.  The way your vote doesn’t count is screwing up filling out the ballot properly.  I know I won’t screw it up in person.”

I have also decided that I’m going to vote in person.  Although I’m at least as likely to screw up a mail-in ballot as our friend is, mine is a practical decision born of a different concern.  In a note a while back, I indicated, “I hope it won’t be necessary, but if it is, on November 3, for the country I want my children and grandchildren to live in, I will be willing to shake the hands of 20 desperately ill COVID patients and hug 20 more if that is what is required to reach a ballot box to vote against Donald John Trump.”  It’s time to back that up.  While measures that extreme probably won’t be necessary, given the malevolent manner in which Mr. Trump has sown distrust in a process which provides more of our people an opportunity to vote (an approach for which there is no credible evidence of any significant fraud having ever occurred in this country, and an approach he himself uses), the high likelihood that his lawyers will seek court orders to prematurely stop the counting of mail-in ballots in swing states such as Wisconsin, and the equally high likelihood of complicity to keep Mr. Trump in power by the bitter and resentful Republican Relics that control my state’s legislature, I refuse to be disenfranchised.  If there are but two Wisconsin votes recorded for Mr. Biden on Election Day [our friend undoubtedly being the other ;)], I want to know that one of them is mine. 

Impressions on RBG’s Passing: Part II

[If one intends to review this post, but has not yet read Part I (which is immediately below), I would start there  ;)]

Upon hearing of Supreme Court Justice Ruth Bader Ginsburg’s passing and my estimation that it was likely that Republicans would immediately move to fill her seat, I feared that given progressives’ capacity for uncontrolled outrage, exacerbated by Republicans’ inexcusable refusal to act on President Obama’s nomination of Judge Garland four years ago, progressives wouldn’t be able to contain themselves.  In a random sampling of liberal outlets over the weekend, there appeared wall-to-wall liberal apoplexy about Republicans’ filling Justice Ginsburg’s seat.  I would suggest that such frenzy is counterproductive.  Bob Woodward reports in his book, Rage, that Presidential Advisor and Trump son-in-law Jared Kushner’s “… core understanding of communication strategy … is, ‘Controversy elevates [Trump’s] message.’”  If – while it remains to be seen how big an “if” it is — Senate Republicans suffer no more than three defections in seeking to confirm Mr. Trump’s nominee, they hold the winning Senate procedural hand.  For progressives to expend undue emotional reserves on a contest that they’re likely to lose at the expense of a contest that they can win – the presidential election – is at best a political gamble and at worst, detrimental to their strategic electoral designs.

That said, there is a distinction between luxuriating in incendiary rhetoric and outwardly temperate expression (even if seething inwardly) of distress and concern with the impact another conservative Supreme Court Justice might have on American rights, and with the blatantly partisan nature of the Republicans’ maneuvers.  The Democrats’ target audience, persuadable swing voters, could be alienated if they make hyper-partisan declarations, but may well be amenable to reasoned arguments and indignation.  While Republicans will attempt to make the fight about abortion, I would offer that Democrats’ best approach will be the line that some have already adopted:  how another conservative Trump appointee might adversely impact the now widely-popular Affordable Care Act, with dispassionate commentary on the contrast between the Republicans’ refusal to proceed with Judge Garland’s nomination and their rush to judgement on the Trump nominee.  Then, get back to the Coronavirus.  They should follow the wise advice of Samuel L. Jackson’s character, Jules Winnfield, near the end of the film, Pulp FictionBe cool.  I’m somewhat reassured that at least Democratic presidential nominee and former Vice President Joe Biden apparently understands this; reports indicate that he said nary a word about the Supreme Court during a recent trip to Wisconsin. 

Recent accounts indicate that the Trump Campaign is calling upon Mr. Biden to identify whom he would nominate to the Supreme Court if elected, and that Mr. Biden is rebuffing such calls.  Here, I think he is missing a golden opportunity.  He should declare that he will re-nominate Judge Garland.  I submit that such a declaration would be brilliant politically.  Progressives will grumble, but faced with the prospect of another Trump term and Trump Supreme Court nominees, will ultimately stay in line behind Mr. Biden; Mr. Garland will have the aura of having been previously nominated by Mr. Obama, providing Mr. Biden cover with his constituencies preferring a nominee of color; Mr. Biden’s naming of Judge Garland, a moderate, would destroy Mr. Trump’s argument that Mr. Biden is a tool of the “alt-left”; and Mr. Biden’s selection of Mr. Garland would seem fitting to swing state swing voters offended  by Republicans’ unfair treatment of him.  I believe that if Mr. Biden would name Judge Garland, he “wins” the Supreme Court debate with persuadable voters no matter what the Republicans do with a Trump nomination.

While political prognostication is engaging, Justice Ginsburg’s passing and the potential fallout has left me with a couple of more fundamental impressions.  The first – perhaps to the surprise of those who are aware of my obsessed keyboard frothing about Sen. Mitch McConnell’s contemptible, despicable, execrable dereliction of duty in refusing to proceed with the Senate confirmation process for Judge Garland – is that President Trump should put forth a nominee, and if, after appropriately-paced and illuminative confirmation hearings, the nominee is found to be judicially qualified and without other objective “disqualifying” factors such as drug addiction (not subjective legal views), the nominee should be confirmed.  Article II, Section 2 of the Constitution provides:  “[The President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme [sic] Court.”  Four years ago, I wrote U.S. IA Sen. Charles Grassley, then the Chairman of the Senate Judiciary Committee:  “I see nowhere in the [Constitution] any language limiting the President’s powers of nomination and appointment to the first three years of his/her term.”  Mr. Trump is the President.  He is within his term.  He has not just the “Power” but the duty to put forth a Supreme Court nominee.  As the late U.S. AZ Sen. John McCain once urged in another context:  Let’s return to regular order.  To me that needs to apply whether or not one finds “regular order” convenient.  As abhorrent as I find Messrs. Trump and McConnell, there is no value to enshrining the notion that a President cannot perform a vital Constitutional function a quarter of the time.  As our mothers taught us:  Two wrongs don’t make a right.

We were with good friends [at a socially-distanced outside gathering ;)] when word came of Justice Ginsburg’s death.  All felt a deep sadness both for the passing of a great American and for what it might mean for our country.  My thoughts initially drifted to the likely political ramifications of Ms. Ginsburg’s passing, but as I contemplated the fire, I considered that no issue so divides our people as does abortion — which Supreme Court nominations have come to symbolize in the public mind — and that Justice Ginsburg’s passing, coming right when it did – neither early enough in Mr. Trump’s term that progressives would ultimately emotionally reconcile themselves to another conservative Supreme Court Justice, nor after Mr. Biden’s inauguration (if such occurs), when conservatives would emotionally accept that Ms. Ginsburg would be replaced by another liberal – could violently deepen the cultural chasms already existing between us; that the impending Supreme Court nomination and confirmation process has the potential to further rip and salt our deepest wound. It is easy to presume that as her condition reached its final stages, Justice Ginsburg explored with her physicians whether there was any way to keep her medically alive through January 20.  There obviously wasn’t. Russian President Vladimir Putin couldn’t have drawn it up any better.

Notwithstanding Mr. Biden’s apparently encouraging lead in the polls, as we enter what I consider the most dangerous months for the future of our democracy since the defeat of Nazi Germany, it is difficult not to have concerns; we seem beset on so many sides. Yet, I find solace in Proverbs 3:5:  “Trust in the Lord with all your heart, on your own intelligence rely not .…”  

May we hold ourselves together.

Impressions on RBG’s Passing: Part I

[Comment:  These notes frequently take shape over several days.  Although I dislike regurgitating old ground, I have taken the liberty of leaving in concepts drafted before they were confirmed by subsequent events or expressed by pundits, such as the likelihood that President Trump would nominate a woman for Justice Ginsburg’s seat and the political conundrum that the Justice’s passing creates for GOP Senators such as Sen. Collins.]

I never engaged in Constitutional Law during my decades of law practice, and never developed any detailed understanding of Justice Ruth Bader Ginsburg’s jurisprudence beyond that she was a liberal icon.  What I found notable about her was the extent to which she “broke through” to the public as a woman’s rights icon and a person of grit and stamina respected across the political spectrum.  Even President Trump, who never misses an opportunity to be churlish in his description of anyone who doesn’t agree with him, was gracious in his initial comments after learning of her passing.  I’d wager that if last week, a cross section of Americans was asked to name members of the Supreme Court, the highest percentage would have mentioned Ruth Bader Ginsburg, John Roberts, and Brett Kavanaugh [I suspect that the latter would rather not be as readily remembered as he is  ;)].     

At this point, the political maneuvering is well underway.  “All politics is local” is a well-known maxim most closely associated with the late former Democratic Speaker of the U.S. House of Representatives, Thomas “Tip” O’Neill, Jr.; I would suggest that the maxim is a subtler way of saying, “All politics is personal survival.”  How Justice Ginsburg’s passing will affect individual politicians will seemingly vary greatly.  We’ll get to the President in a minute.   

First, the easiest:  Republican Senate Majority Leader Mitch McConnell.  The play for Sen. McConnell – or if you prefer, Moscow Mitch, The Man of Many Chins, or The Evil Weasel — is obvious:  push the nomination through.  Mr. McConnell views the conservative stacking of the federal judicial system as his legacy.  He has no qualms about fairness or decorum.  He undoubtedly realizes that this could be his last chance to put another conservative on the Supreme Court.  Even so, perhaps the most important point for him:  despite the egregious hypocrisy involved in proceeding with efforts to confirm any Trump nominee given his thwarting of former President Barack Obama’s nomination of U.S. Court of Appeals Judge Merrick Garland four years ago, I’ll venture that the majority of Kentuckians will approve of his moving forward.  Such an approach may well seal his victory in his 2020 U.S. KY Senate race.  At a guess perhaps born of northern ignorance, an aggressive Republican move also seems to help Republican Sens. Lindsey Graham (SC), Thom Tillis (NC), and Sonny Perdue (GA) in their tighter-than-expected races.

At the other end of the spectrum is U.S. ME Sen. Susan Collins and perhaps other Republican Senators in close races in more moderate states, such as Republican Sens. Martha McSally (AZ), Cory Gardner (CO), and Joni Ernst (IA).  None will win without rabid support among committed conservatives but perhaps can’t win without some support from moderates who may be offended by a blatantly political Republican move to cram a nominee into Ms. Ginsburg’s seat. Calls by Sen. Collins and her friend, U.S. AK Sen. Lisa Murkowski, to delay any Senate confirmation vote until after Election Day demonstrate that they understand that the upcoming process places Sen. Collins in acute political peril. The decision by Messrs. Trump and McConnell to proceed — although it arguably reduces their odds of maintaining a Republican Senate majority in January — simply confirms that at bottom, all politics is … personal survival.

As to the President:  He has already indicated that he intends to send a nominee to the Republican-controlled Senate in short order.  The nominee will undoubtedly be an avid cultural conservative and pro-life advocate.  I’ll be shocked if it’s not a woman; the Trump Administration will attempt to defuse by at least a bit the feminist ire that would result from women “losing” a seat on the Court.  No matter whom the President chooses, going forward with the nomination is the obvious play for him.  He would absolutely grievously offend and lose vital support among evangelicals and cultural conservatives if he doesn’t proceed.  The beauty of this from his perspective – although he has already proven too ham-handed to take advantage of it – is that he could have gained political advantage for himself – all he cares about – and while seemingly sticking to the high ground:  a Supreme Court Justice has died; he’s President; he’s going to put forth a nominee to fill the seat, as the Constitution requires; he had no part in the Senate’s lack of action on the Garland nomination; what the Senate does with his nomination is up to the Senate.  Since he isn’t subtle enough to stick to that tack, Mr. Trump could well lose some swing state suburban moderates who may be concerned that an unfairly partisan rushed confirmation process will endanger pro-choice and health care protections, but this is obviously an electoral risk he intends – and from the standpoint of his cold political need for staunch religious conservative support, has — to take.

All that said, I would submit that the most important political advantage the nomination provides Mr. Trump:  every day the discussion is about the Supreme Court and not about the Coronavirus is a good political day for him.

In an effort to keep these posts to at least a somewhat manageable length, what remains of this note will appear in Part II.

A Profile in Courage

Other obligations have limited the time I’ve had to devote to these pages in recent days, but I want to note the video posted yesterday by Olivia Troye, attached below.  There are now so many “tell-all” accounts regarding President Trump that they no longer seem worth noting [I declare as I’ve spent some time going through Bob Woodward’s book, Rage ;)]; to borrow from the Lord, all that have ears to hear regarding the President’s malign character and blatant incompetence … have already heard.  Even so, I want to echo what I’ve seen a couple of others note:  Ms. Troye, a lifelong Republican who until recently served as Homeland Security and Counter-terrorism Advisor to Vice President Mike Pence and Mr. Pence’s lead staff member on the COVID-19 response, is, out of love of our nation, risking what has been shaping up to be a noteworthy career to speak out about Mr. Trump’s manifest unfitness for the presidency.  Her courage is of the type shown by Lt. Col. Alexander Vindman and others who might be described as “just regular public servants,” and puts to shame all of the gutless current Republican officeholders who know – who know – that the President is unfit, people such as former Speaker of the House of Representatives Paul Ryan who ran from the field with their tails between their legs rather than speak out about the President, and most particularly … her former boss, Vice President Pantywaist.  The selfless courage of Americans such as Ms. Troye provide our greatest hope for the future.

Initial Reflections on Woodward Book, Rage

As I suspect all that wish to be aware are aware, Washington Post reporter Bob Woodward has published a new book, Rage, including many hours of interviews with President Trump in the early months of this year in which the President made plain that he understood the Coronavirus’ virulence and its potential for spread among Americans much more clearly than he publicly articulated at the time or for months thereafter (or arguably, given his inconsistency, to this day).  I haven’t yet read the book [I have signed up to get it upon its general release  ;)], but the interview recordings Mr. Woodward has made available along with the book’s preliminary release – tapes undeniably bearing Mr. Trump’s voice – seem to warrant some initial impressions.

On March 19, after months of scoffing at the severity of the disease or the likelihood that it would spread in America, Mr. Trump told Mr. Woodward, “I always wanted to play it down. I still like playing it down, because I don’t want to create a panic.”

Sometimes Presidents have to lie.  It’s a part of the job.  I am confident that if President Harry Truman had been asked the day before the first atomic bomb was dropped on Hiroshima whether he had approved use of such a weapon at that time at that site, he would have denied it.  If President Barack Obama had been asked the day before the raid that eliminated Osama bin Laden whether such a raid was imminent, he would have denied it.  I suspect that President Franklin Roosevelt felt less optimism about a successful outcome of the war against Japan than he expressed the day after Pearl Harbor, with the American Pacific Fleet then in tatters and little between the Sea of Japan and San Francisco Bay to defend us against the Imperial Japanese Navy.

I would submit that Mr. Trump’s false representations fall into a completely different category.  He was neither lying in the interest of national security nor seeking to maintain the mood of our people at a time – such as the day after Pearl Harbor – when there was nothing they could realistically do but hope.   I would suggest that what Mr. Trump really meant when he spoke to Mr. Woodward on March 19 was, “I don’t want to create a panic in the financial markets, since my only hope for re-election is a healthy economy.”  I would assert that the Coronavirus, unlike Hiroshima, bin Laden, or Pearl Harbor, presented a danger akin to a hurricane, in which affirmative efforts by our people, had they been told the truth, could have saved thousands upon thousands of lives.  If told a Category 5 hurricane is coming, coastal Americans evacuate, board up windows, collect supplies.  If they’re told a light tropical storm is approaching … they don’t.

Although Americans live in different information silos and I doubt that Mr. Woodward’s revelations – any more than recent reports that Mr. Trump was advised early this year that Russia had put bounties on the heads of American soldiers in the Middle East or that Mr. Trump has declared those that served in Vietnam “suckers” and those that have died in battle “losers” — will have an adverse impact on Mr. Trump’s cult support.  I would venture, however, that Mr. Woodward’s account could have a pivotal impact upon the election because of the effect that it might have on those reluctant 2016 Trump voters not entirely in the right-wing information silo who polls indicate were leaning toward Democratic presidential nominee and former Vice President Joe Biden in the first half of the summer but have more recently been considering returning to Mr. Trump.  Mr. Woodward’s book turns the nation’s eyes back from our sporadic urban unrest to the Coronavirus, and appears likely to command the media spotlight for days.  It seems a prime subject for inquiry at the first presidential debate on September 29.  If the attention on Mr. Woodward’s reports reduces wavering 2016 Trump voters’ return to the President by even 1% in pivotal states, such could have a decisive electoral impact.

As to Mr. Woodward:  notwithstanding my extremely high regard for – and frequent references to — the late Author and New York Times reporter David Halberstam, I would submit that if the tapes of Mr. Woodward’s interviews of President Trump indeed help persuade significant segments of independent voters to repudiate Mr. Trump, Mr. Woodward’s work here, taken together with his Watergate reporting, will mark him as the most influential political journalist of his time.