What Might They All Do? On Mark Esper: A Postscript

[Full disclosure:  I heard David Ignatius of the Washington Post express many of the substantive concerns set forth below on MSNBC’s Morning Joe this morning.  I still consider it appropriate to post this because it was written yesterday.]

So much for feeling a modicum of sympathy for President Trump’s anguish in defeat.

As all who care are aware, U.S. Secretary of Defense Mark Esper was relieved of his duties yesterday by Mr. Trump.  Mr. Esper has been replaced by Christopher C. Miller, director of the National Counterterrorism Center, described in some accounts as a loyalist to the President.  (No confirmation as to Mr. Miller’s political sentiments here; I had never heard of him until yesterday.)  While it probably matters little at this point to Mr. Esper personally, the inferences one might draw regarding the potential significance of his removal for the nation are worthy of reflection.

In a note I published last June, “The Fourth Election:  Part II,” I commented in part as follows:    

“Clearly Mr. Trump has considered himself unfettered since his [Senate impeachment] acquittal, and has felt free to exact revenge and pursue vendettas against those he considers to have wronged him or his entourage.  Does anyone think that Mr. Trump will be more restrained if he is re-elected?  Does anyone wish to wager that Dr. Anthony Fauci, who has at times displeased the president with his candid assessment of the extent of COVID crisis, or Secretary of Defense Mark Esper and Chairman of the Joint Chiefs of Staff Mark Milley, who each publicly separated themselves from the President’s actions in Lafayette Park, won’t be removed from their positions if and when Mr. Trump no longer considers such removals a danger to his re-election prospects? [Italics in Original]”

I noted in these pages yesterday:   “… Mr. Trump is unpredictable, and retains control the federal machinery for another ten weeks.  If any of the following individuals, I would take the following steps to guard against risks to the Republic during the interregnum in the event that Mr. Trump either resists leaving office, demonstrates irrationality or paralysis as he absorbs his defeat, or otherwise conducts his office in a manner dangerously deleterious to American domestic or international interests. [:] …  Defense Secretary Mark Esper and Chairman of the Joint Chiefs Mark Milley:  I’d very quietly have trusted outside counsel advise me as to the circumstances under the Military Code in which a subordinate officer can relieve a commanding officer.”

Is Mr. Esper’s removal no more than an instance of Trump retribution?  Almost certainly.  A portent of anything more significant?  Almost certainly not.  Canaries undoubtedly occasionally die in coal mines for reasons other than inhalation of poisonous gas.  That said, Mr. Trump has fired the civilian in the chain of command between the military and himself who was resistant to the use of American troops against our citizens, and replaced him with an individual that at least some consider more loyal to Mr. Trump.  (It would be fascinating to know whether Mr. Esper had indeed been researching rules of the Military Code relating to removal of a superior officer that I suggested yesterday that he might.)  While Mr. Esper’s removal probably has little meaning other than to provide any American who has regrets about voting against Mr. Trump further reassurance that his/her vote for Mr. Biden was well entered, Mr. Trump’s future exercise of his presidential power arguably bears closer watching than all the hoorah arising from his electoral antics.

What Might They All Do?

In a past note, I offered some observations as to how Russian President Vladimir Putin might react, if President-Elect Joe Biden won the presidency, during the interregnum between the determination of Mr. Biden’s victory and his Inauguration Day.  There are obviously many parties with interests to pursue during the coming ten weeks, particularly since President Trump seems, at least at this point, intent on futilely thrashing about.  How a number of pivotal players might view their respective opportunities and challenges:

Mr. Biden first:  He’s already doing it.  The President-Elect is projecting momentum, inevitability, moderation, and unity.  He is executing his Coronavirus policy, and either has or will (critical:  after securing the Trump Administration’s approval) publicly and privately expressing American stability to both allies and adversaries.  While Mr. Biden has already alluded to a slew of Executive Orders he intends to issue on Inauguration Day (e.g., extending DACA, re-entering the Paris Climate Accord and appropriately rescinding overtly biased-based Trump Administration actions such as the Muslim ban), he should defer announcing dramatic policy reversals that don’t have a tinge of bias, such as those relating to fracking regulations and the Iranian nuclear deal.

I earlier indicated that during any interregnum between Trump and Biden Administrations, Mr. Trump’s failings will render American foreign policy at its most impotent in over a century; that said, Mr. Trump’s foibles and instability may cause many of our adversaries to tread gingerly.

Mr. Putin:  I have come to the opinion that if Mr. Putin – who has yet to extend congratulations to Mr. Biden — thinks inflaming American domestic passions will make future relations with Mr. Biden more difficult, he won’t.  I think Mr. Putin will be tempted to exert influence in Belarus and might probe Ukraine.

Chinese President Xi Jinping:  Having recently secured the Mainland’s position in Hong Kong, and being aware of President Trump’s erraticism and that Mr. Trump may well blame Mr. Xi for his defeat due to Mr. Xi’s early Coronavirus dissembling, I expect Mr. Xi to stand very still.  Although an overt move against Taiwan is undoubtedly tempting, it’s too likely to provoke a bellicose response from Mr. Trump.

North Korean Supreme Leader Kim Jong Un:  Will do what Mr. Xi tells him to do.  See above regarding the dangers of provoking an unstable Mr. Trump.

Iran Supreme Leader Ayatollah Sayyid Ali Hosseini Khamenei:  The Iranians undoubtedly consider Democrats like Messrs. Obama and Biden easier to work with than erratic and warlike Republicans [Note:  I agree with the Republicans on this one ;)].  Mr. Trump probably hates Iran even more than he hates China.  If you are Iran, this is the time to stand pat and avoid provoking Mr. Trump.

The Taliban in Afghanistan:  This group is so driven by hate that it can’t get out of its own way.  Although Richard Haass commented in A World in Disarray, “[D]iplomacy and negotiations tend to reflect [armed conflict] realities on the ground, not change them,” I would nonetheless venture that if it was smart, the Taliban would throttle down its violence in Afghanistan, continue its peace talks with the Afghan government, avoid provoking Mr. Trump, give Mr. Biden the psychological space to remove our remaining troops – all but a foregone conclusion if the Taliban can restrain itself — and then overrun the country.  Since the Taliban has never demonstrated a shred of strategic thinking, this seems the Middle East’s, and perhaps the world’s, wildest card.

Our allies:  Whether happy or sad at Mr. Trump’s defeat, these nations need the United States.  They’ll seek to make accommodation with Mr. Biden.  If I were Mr. Biden, I would see what if anything could be done with German Chancellor Angela Merkel – the ally most obviously thrilled at the prospect of Mr. Trump’s departure — to obstruct Germany’s Nord Stream 2 pipeline project with Russia.

On the domestic sphere:

Senate Majority Leader Mitch McConnell:  Mr. McConnell will quietly pull the party trappings out from under Mr. Trump.  Although some commentators are talking about establishment Republicans’ desire to hold Mr. Trump’s base sans Mr. Trump, my guess is that the pros realize that a movement like Mr. Trump’s needs a charismatic demagogue.  They rode Mr. Trump to a lot of conservative judges; they know they can work with Mr. Biden; and … they know that Mr. Trump was never qualified to be president.

Rupert Murdoch:  By far the dominant voice in the alt-right propaganda echo chamber.  His Wall Street Journal and New York Post have already called the election for Mr. Biden.  Some liberal talking heads are talking about “what the Fox News hosts will do.”  I am surprised by that; these hosts have the platform that Mr. Murdoch gives them.  If/when Mr. Murdoch tells them to shift their perspective from “The election was rigged” to regret that “Mr. Trump lost, and it’s time to look forward,” they’ll do as they’re told.  Attacking Democrats will be at least as good for Fox’ business as hyping an obviously unstable and unqualified loser who is probably going to seek to become Fox’ competitor.

The following will sound paranoid, but Mr. Trump is unpredictable, and retains control the federal machinery for another ten weeks.  If any of the following individuals, I would take the following steps to guard against risks to the Republic during the interregnum in the event that Mr. Trump either resists leaving office, demonstrates irrationality or paralysis as he absorbs his defeat, or otherwise conducts his office in a manner dangerously deleterious to American domestic or international interests.  Almost certainly unnecessary; but precautions perhaps worth taking:

House Speaker Nancy Pelosi:  There is undoubtedly a lawyer – undoubtedly a man 😉 – elegant, cultured, who is at the epicenter of Democratic Party power politics.  Call him, “Mr. Clifford.”  (If one Googles “Clark Clifford,” you’ll see the prototype.)  If I was Ms. Pelosi, I would have already called Mr. Clifford, and – her lips to his ear — asked him to draft a generic Article of Impeachment for use if necessary.

Defense Secretary Mark Esper and Chairman of the Joint Chiefs Mark Milley:  I’d very quietly have trusted outside counsel advise me as to the circumstances under the Military Code in which a subordinate officer can relieve a commanding officer.

Vice President Mike Pence:  After consulting with Secretary of State Mike Pompeo, I’d have trusted outside counsel advise me regarding the 25th Amendment (this last almost certainly won’t happen).

Finally:

Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett:  The ball is almost certainly not going to be hit to them in any meaningful way.  I’d already be relaxing in a warm bath with a glass of fine wine [or in Justice Kavanaugh’s case, a cold beer ;)].

President Trump:  Every one of us has suffered an emotionally crushing setback at some point or other.  I would suggest, with genuine sympathy – despite the danger his instability presents — for the unspeakable anguish that the President, a man beset by crippling insecurity, is now undoubtedly experiencing, that he consider the following clip, the conclusion of the portrayal of another talented, proud, and deeply flawed man in a film that I guarantee that all men of the President’s and my vintage absorbed at the time.  It provides perspective if not solace …

Whew!

As I suspect every conscious American is now aware, most or all of the credible mainstream news outlets in this nation, including the Wall Street Journal (which I specifically note, given its conservative editorial bent) have declared that former Vice President Joe Biden [now President-Elect Biden ;)] has won sufficient states to claim an Electoral College victory, and thus, the presidency of the United States.

Are there Democrats that are too progressive for me?  A bunch.  Are there Republicans who are too reactionary for me?  A bunch.  Will there be pitched policy battles over the next two, and then the succeeding two, years?  You bet.  Are there millions of Americans who feel disrespected by the elites — on both sides of political aisle — who deserve to have their justifiable concerns addressed?  Absolutely.  But as I just noted to a friend … I feel that I can breathe for the first time in four years.  It will come as no surprise to anyone that has read these pages, given my numerous allusions to Adolf Hitler’s Mein Kampf, that I consider President Trump to have Fascist inclinations, and that I genuinely feared that another four years of a Trump presidency seriously risked the destruction of the American Dream.  I’ve been watching presidential election nights since 1960; there have been a number in which I was joyful, others in which I was despondent.  Never in my life have I felt this level of exhilaration, combined with an equal sense of … relief.

Do we have immediate risks over the next ten weeks, both at home and abroad?  Without doubt; Mr. Trump’s reaction to his loss – and what that will mean to our domestic tranquility and what actions it might precipitate around the world – remains to be seen.  But I hope that the Lord will not consider me blasphemous if I take the liberty of paraphrasing the conclusion of the Prodigal Son parable,  Luke 15:32:  Today, it is right that we make merry and rejoice, for the American Dream seemed likely to perish, and has come to life; it seemed lost, but … is found.

WWVD? Part II

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

Russian President Vladimir Putin obviously prefers to have President Trump pull off what will be viewed as a second upset Electoral College victory over former Vice President Joe Biden, and is undoubtedly using every means at his disposal to try to help bring that result about.  A re-election of Mr. Trump seems likely to lead to the emasculation if not dissolution of the North Atlantic Treaty Organization (NATO), and will enable President Putin to take less provocative gradual steps over the next four years to further what he views as Russia’s strategic interests.  Mr. Putin has probably concluded that Mr. Biden’s succession to the U.S. presidency will make such incremental Russian advances more difficult.  I suspect that Mr. Putin sees what we see:  while Mr. Trump might still pull out an electoral victory, the odds – despite the best efforts of the American alt-right propaganda machine and Russia – currently remain in Mr. Biden’s favor.  Mr. Putin is, as well documented by Fiona Hill and Clifford G. Gaddy in their book, Mr. Putin, a survivalist and superb contingency planner.  What does President Putin do if Mr. Biden is indeed certified the winner of the U.S. Presidential election?  Perhaps a few options:

American domestic relations:  the use of social media and other outlets to spread incendiary disinformation among Trump supporters that the election was “stolen” from Mr. Trump, in an effort to incite violence by the Trump fringe elements and to persuade traditional Trump supporters that Mr. Biden’s presidency is illegitimate, perhaps thereby hobbling a Biden Administration’s ability to thwart Russian initiatives.  A divided enemy is a weak enemy.

International relations:  During the interregnum between any certification of a Biden victory and Mr. Biden’s inauguration, Mr. Trump’s narcissism, bitterness, incompetence, and erraticism will reduce American foreign policy to its most impotent state in over a century.  Although Mr. Putin has certainly relished dabbling in and – due to American missteps during both the Obama and Trump Administrations – having Russia arguably supplant the United States as the most influential outside power in the Middle East, Russia’s strategic interests lie in the former Soviet Socialist Republics — referred to by Russian officials as the “near abroad” — and Europe. Hill and Gaddy report that Mr. Putin indicated in 2014 that he sought to extend Russian influence “… to all the space in Europe and Eurasia that once fell within the boundaries of the Russian Empire and the USSR.”   When (given Mr. Trump’s inadequacies, adding “if” to this sentence is absurd) Mr. Putin sees American response effectively neutered during the interregnum period, these are some of the areas in which he might consider proceeding:

Create a pretext, invade and annex the parts of east Ukraine in which the ethnic Russian population exceeds one third of the overall population.  Ukraine, a former Soviet Socialist Republic, is not a member of NATO, and thus, such an overture would not result in the invocation of NATO signatories’ collective defense obligations under Article 5 of the NATO Treaty.

Provide troops to actively help Russian puppet Belarusian President Alexander Lukashenko put down the continuing Belarusian opposition against his recent fraudulent election victory.  Belarus is a former Soviet Socialist Republic.  Russian Foreign Minister Sergey Lavrov is reported to have called the continuing protests against Mr. Lukashenko a geopolitical struggle over spheres of interest (dismissing the notion of an intra-national dispute between Belarusians).  The European Union’s recent award of the Sakharov Prize for Freedom of Thought (ironically, named after Soviet dissident Andrei Sakharov) to Belarusian Opposition Leader Sviatlana Tsikhanouskaya and her followers is almost certainly seen by Mr. Putin as an EU effort to undermine Russian influence in Belarus.  Mr. Putin might anticipate that Russian military assistance to Mr. Lukashenko would receive international condemnation, but be very unlikely to trigger a more aggressive Western response in what is a non-NATO intra-national dispute. 

Consider stirring unrest in the Baltic States:  Estonia, Latvia, and Lithuania, all former United Soviet Socialist Republics.  Since all three are now NATO nations, they present very different challenges and opportunities from Ukraine and Belarus.  Given the NATO Treaty’s Article 5, Mr. Putin would probably deem overt military operations too risky even with a distracted and figuratively disarmed United States.  Still, covert efforts through infiltrated agents to sow discord in the Baltic States’ civil affairs might increase Russian influence and disrupt NATO relationships, provided that they can be undertaken with Russia’s plausible deniability.

Make Germany a very advantageous offer with a short acceptance window on a long-term arrangement for Russian oil and natural gas.  This would cement the German-Russian energy relationship as the two nations’ Nord Stream 2 pipeline project, which will provide Russia with additional distribution avenues and greater capacity to provide energy to Europe, nears completion.  The project is bitterly opposed by the Trump Administration and will be by a Biden Administration.  German Chancellor Angela Merkel has consistently rebuffed Mr. Trump’s efforts to kill the project, undoubtedly primarily because (whether or not correctly) she views the arrangement in Germany’s best interest, but perhaps with less heed to American concerns than she might have had five years ago given Mr. Trump’s obvious disdain for NATO, the EU and her personally.  Germany is the EU’s economic bedrock.  Mr. Putin understands that there are some areas in which use of military power isn’t feasible; use of energy leverage to unravel NATO and wean core EU nations away from the United States significantly furthers Russia’s interests.

Too dark?  Paranoid?  Perhaps; it is the Halloween Season, and I did indicate at the outset of this note that Mr. Putin is a scary book  ;).  That said, it is a seminal work; it enables one to see through Mr. Putin’s eyes.  It seemingly behooves us to consider how well over the last 20 years a man who came from nowhere has played what was in reality a very weak hand when he came into office.  President Richard Nixon reportedly once told Communist Party General Secretary Leonid Brezhnev that he respected what Mr. Brezhnev said, but made policy based upon what Russia did.  I submit that Mr. Putin’s record suggests that we ignore the measures he might take at our peril.  I suspect that they will be sufficient to keep a President-Elect Biden awake at night.

Trick or Treat.

WWVD? Part I

In this Halloween Season, I’ve been reading the scariest book I’ve bought in retirement:  Mr. Putin, by Fiona Hill and Clifford G. Gaddy, which is more a psychological profile than a biography of Russian President Vladimir Putin.  (I thoroughly recommend it to foreign policy junkies; it makes quite a pairing with Mary Trump’s psychological profile of President Trump, Too Much and Never Enough.)  [Note:  the latest edition of Mr. Putin was published over a year before Mr. Trump announced his candidacy for the presidency.]  Some excerpts:

“If Putin says he will do something, then he is prepared to do it, and he will find a way of doing it, using every method at his disposal….Vladimir Putin is a fighter and a survivalist.  He won’t give up, and he will fight dirty if that’s what it takes to win….Putin’s tactics at home and abroad are geared toward gaining advantage against his opponents. [Emphasis in Original].”

On Mr. Putin’s handling of the Russian oligarchs:  “There must be some kind of hook to guarantee loyalty, even with [those] that seem most closely linked to [Mr. Putin]….The role of money in this system is important but commonly misunderstood….[I]t is not money that guarantees loyalty …. Instead, it is the fact that the money derives from activity that is or could be found to be illegal.  Participants in the system are not bought off in the classic sense of that term.  Instead, they are compromised; they are made vulnerable to threats.  Enforcement … is achieved … by implicit threats …. Loyalty is ensured through blackmail. … [T]he risk of loss is more important than any reward.  And, as in the most effective blackmail schemes, it is not the threat of loss of money or property that frightens most people.  It is loss of reputation, loss of one’s standing in the eyes of family, friends, and peers – loss of one’s identity [Emphasis in Original].”

“Viktor Yanukovych [who became Ukraine President in 2010, and fled to Russia for refuge in 2014] seemed much more interested in running Ukraine as a ‘family business’ than dealing with the business of economic and political reform. … From Putin’s perspective, the Ukrainian president’s well-documented venality was a major vulnerability that Putin could use to his benefit.  It provided leverage.  Yanukovych was similar to the foreign targets Putin and his KGB colleagues had set up … in the 1970s and 1980s.  His greed and transgressions opened him up to reputational risk at home and abroad.  They also made him relatively easy to buy off.  Putin did just that — … encouraging Russian companies to place lucrative offers with industries closely connected to the Ukrainian president and his family.”

Feel free to substitute any name for “Viktor Yanukovych” you consider appropriate.  To be fair:  in Rage, Bob Woodward reported:  “As [Director of National Intelligence, Dan] Coats had access to the most sensitive intelligence … He suspected the worst but found nothing that would show [Donald] Trump was indeed in Putin’s pocket.”

Back to Mr. Putin:

“[Into 2013] in Ukraine, Putin thought he had the situation under control with the venal and vulnerable Viktor Yanukovych in place.  But he had bet on the wrong horse.  Yanukovych could be blackmailed, but he couldn’t keep control of Ukraine.  Once it became clear that Yanukovych had [what Mr. Putin described as] ‘no political future’ … Putin had to make sure that his backup plans were in place.  Annexing Crimea and setting the rest of Ukraine on fire were contingency operations.  They were prepared in advance, ready to be used if needed – but only if needed.”

“As a consequence of his [KGB] Case Officer identity, Mr. Putin cannot simply abandon an ‘asset.’”

The Mueller Report makes clear that when Russia began its meddling in the 2016 election, its primary goal was to sow discord among the American people; it shifted its efforts to a more aggressive support of then-Candidate Donald Trump when it appeared that he actually had a chance to win.  Now that Mr. Trump is in power, Russia’s current effort is undoubtedly heavily focused upon spreading disinformation and attempting to hack American electoral systems to keep him there.  However, one point Hill and Gaddy drive home repeatedly is that Mr. Putin is a contingency planner:

“The notion that Putin is an opportunist, at best an improviser, but not a strategist, is at best a misread. …  Putin knows that unexpected events can and will blow things off course in domestic and foreign policy.  The key to dealing with the unexpected is to anticipate that there always will be setbacks.  This means he focuses on contingency and adaptive planning to deal with them [Emphasis in Original].”

It seems not unreasonable to assume that in addition to doing whatever he can to secure Mr. Trump’s re-election, Mr. Putin has carefully considered what steps his agencies will take in the event that Mr. Trump loses.  Some of his potential avenues in Part II.

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.

A Coronavirus Kaleidoscope: Part XIII

We’ve seen any number of reports of “scientists around the world” working to develop effective Coronavirus treatments and a vaccine. Most of these reports assume a cooperative humanitarian distribution of these resources when they are developed. Aside from the inevitable competition between biomedical companies for what will be trillions in revenue, it seems not inconceivable that the outcome of these efforts could also have global political ramifications. While the nation whose scientists are the first to develop effective remedies will almost certainly not seek to exploit the virus as a biologic weapon against its adversaries while protecting its own populace, it will have the capability to resuscitate its own economy while other nations still struggle, and there might also be at least the temptation to secure significant concessions from competing nations in return for granting access to effective treatments or a vaccine. Although one can presume that humanitarian instincts will hold sway among all nations, it nonetheless seems advisable on geopolitical as well as humanitarian grounds for the U.S. to be the first to develop effective means to combat the virus.

As has now been widely reported, in a call with supporters on May 8, former President Barack Obama, who has generally been fairly circumspect in his references to the Trump Administration, observed that the decision by the Trump Administration’s Department of Justice to drop its prosecution of former Trump Administration National Security Adviser Michael Flynn – who has twice pled guilty to lying to the FBI – indicated that our nation’s “basic understanding of the rule of law is at risk,” and at another point during the call, declared the Trump Administration’s Coronavirus response an “absolute chaotic disaster.” Several reports of the call stated that Mr. Obama’s comments were “leaked.” President Trump and his retinue have been predictably yelling about Obamagate – that’s “OBAMAGATE!” – ever since. Although the following reactions are not unique to me, I feel that it remains appropriate to record them here since I had them before I saw others voice them: Mr. Obama has proven himself too savvy a political operative to express such incendiary remarks where they might “leak” unless he intended it. He baited Mr. Trump, and Mr. Trump fell for it. The more Mr. Trump attacks Mr. Obama – who will not be on the ballot in November — the less fire the President and his cohort are directing at former Vice President Joe Biden [although Mr. Trump has peripherally included Mr. Biden in his claims, the fact remains that neither he nor his collaborators are calling this trumped up {so to speak 😉 } scandal, “BIDENGATE.”] The attacks seem likely to backfire on Republicans with swing voters in swing states who turned out decisively for Mr. Obama in two elections, will arouse the defensive instinct in those constituencies in which Mr. Obama is particularly strong (Republicans aren’t the only ones seeking to increase turnout within their base), and further tie Mr. Biden to Mr. Obama in the eyes of Mr. Obama’s supporters – which Mr. Biden himself seeks to do at every turn. I note that despite Mr. Trump’s calls upon U.S. SC Sen. Lindsey Graham to call Mr. Obama before the Senate Judiciary Committee chaired by Sen. Graham, Mr. Graham has demurred – I’m confident not out of any sense of decorum, but because Mr. Graham must realize that Mr. Obama would relish the opportunity to come before the Judiciary Committee; he would crush the Republicans with swing voters in what would be the media circus of the decade. Only Mr. Trump has seemingly failed to grasp that.

I have genuinely increasing concern that the pressure of the COVID crisis and his falling polls are causing Mr. Trump to become dangerously unbalanced (he does, after all, control our nuclear codes). His widely noted suggestion that the novel Coronavirus might be combatted by injecting disinfectant into a patient’s body was an unnerving glimpse of his grasp of reality. His more recent claim that he’s taking hydroxychloroquine – which at this point even Republicans are generally aware is a medication with potentially serious side effects that the medical community has discounted as an effective way to prevent COVID-19 – seems a particularly blatant rejection of scientific expertise (even prompting an uncharacteristically direct – and commendable — refutation by a Fox News commentator, Neil Cavuto). If Mr. Trump is indeed taking the drug, it doesn’t appear a means to garner him additional electoral political support; it is hard not to conclude that he is actually electing to entrust his health to the Wizard of Oz.  If he isn’t actually taking the medication, and such is ultimately determined (which it will be), he has – and will be shown to have — capriciously risked the lives of those who decide to take it because they have faith in him. Either way, his declaration that he is taking hydroxychloroquine frankly makes him appear less than — to use his own words — “very stable.”

At the time this is typed, the United States, Russia, and Brazil lead the world with the most confirmed Coronavirus cases. Donald Trump, Vladimir Putin, and Jair Bolsonaro … a Kingston Trio for one to imagine. Understandably, Mr. Putin would claim the center and sing lead; Messrs. Trump and Bolsonaro would flank him and — appropriately given their records — provide the backup chorus.

Stay safe.

A Coronavirus Kaleidoscope: Part IX

Below is a link to a Washington Post article reporting upon the escalating challenges pressuring Brazil’s President, Jair Bolsonaro. Having recently linked a different article by our son, I would not have cited this one, but for the seeming incongruity – at least to our smug American psyches — it sets forth: that Brazil’s highly-respected Justice Minister and one-time Bolsonaro associate has resigned, claiming that Mr. Bolsonaro demanded the installation of a police chief who would accept the President’s investigation requests and provide information to Mr. Bolsonaro – at a time when Mr. Bolsonaro’s sons are under investigation by authorities; that this week, a Supreme Federal Court Justice ruled that an investigation into Mr. Bolsonaro’s alleged actions was necessary, because “No one, not even the president, is above the constitution and the law”; that Mr. Bolsonaro has fired his highly-respected Health Minister for urging Brazilians to stay at home to combat the country’s Coronavirus spread; that at least at one point Mr. Bolsonaro believed that the drug, chloroquine, would solve the country’s COVID outbreak; that Mr. Bolsonaro listens to only a small circle of advisors, particularly his children; that a former center-right Brazilian president (Mr. Bolsonaro is decidedly on the right) has withdrawn his support of the President, saying Mr. Bolsonaro “looked like a Nazi”; and that one of Mr. Bolsonaro’s powerful supporters in the National Congress has now broken with him due to Mr. Bolsonaro’s “isolation.” The irony that struck me has by now become apparent to you: that despite political stress, a constitutional separation of powers and system of checks and balances is working just as Alexander Hamilton, James Madison, and John Jay envisioned … in Brazil.

https://www.washingtonpost.com/world/the_americas/for-brazils-bolsonaro-isolated-by-corruption-probe-and-virus-denial-the-troubles-mount/2020/04/28/de7de790-8951-11ea-8ac1-bfb250876b7a_story.html

I haven’t been in many closed spaces over the last six weeks, but now – unlike Vice President Mike Pence — wear a mask when I am. I wear glasses, and have been more than a little exasperated that even ordinary breathing into the mask fogs up my glasses. A former therapist colleague of one very close to me advises that if one washes one’s glasses in shaving cream, rinses them and lets them dry before donning the mask, this will prevent them from fogging up. I haven’t tried it yet, but since the source is highly credible and many of those that follow these pages wear glasses, felt it was worth passing along ;).

Even as we continue our battle with the virus, speculation is increasing as to whom former Vice President Joe Biden will pick as his running mate (Mr. Biden has indicated that he will ask a woman). I find that my irritation with former GA Rep. Stacey Abrams – the failed 2018 Democratic candidate for the Georgia Governorship – is mounting. Ms. Abrams, African American, is openly campaigning for the nomination, putting pressure on Mr. Biden and perhaps creating disappointment in the black community if Mr. Biden doesn’t choose a woman of color. I indicated in an earlier post that I did not consider Ms. Abrams a wise choice for certain tactical reasons. I would submit that the most important reason not to choose her – particularly for Mr. Biden, who would enter the White House at age 78, thus needing a running mate that voters are comfortable could assume the presidency on Day 1 — is her lack of appropriate background and experience. In a recent program, “Into 2020 with Stacey Abrams,” Ms. Abrams stated, “I think experience is a combination of issues. It’s competence, it’s skills, and it’s proven deliverables. And I would match my experience against anyone’s.” Maybe she would; I wouldn’t. The weightiest office Ms. Abrams has held in her public career is Minority Leader in the Georgia House of Representatives. Even if effective in that milieu, she hasn’t governed a state, has no experience with the U.S. Congress, and lacks any foreign policy expertise – substantive gaps that swing voters in swing states will probably quickly recognize. At the same time, Ms. Abrams’ refusal to run for a Georgia U.S. Senate seat in 2020 could ultimately cost Democrats control of the U.S. Senate. She narrowly lost to GA Gov. Brian Kemp in a contest marred by alleged voter suppression. Her standing in the state has perhaps since been enhanced by Mr. Kemp’s arguably mixed management of Georgia’s COVID response (he’s been criticized by both Georgia Democrats and President Trump – no small feat).  Because of the health-related retirement of former U.S. GA Sen. Johnny Isakson, Georgia has two Senate seats on the ballot this year; Mr. Kemp’s appointed Republican replacement for Mr. Isakson, U.S. GA Sen. Kelly Loeffler, has during her brief time in office managed to at least create the appearance that she exploited information from a classified Senate Coronavirus briefing to avoid significant personal stock market losses. Ms. Abrams has huge name recognition in her state. Particularly given the current liberal fervor against Mr. Trump, she seemingly would have been a formidable candidate for a Georgia Senate seat.  In our current political circumstances, I’m dismayed at an apparent opportunity squandered.

I concede that the YouTube video linked below, forwarded to me by a close friend, is perhaps not entirely in keeping with the tone that I generally try to maintain in these pages … but a benefit of writing a blog – apparently, like being President — is the freedom to disregard one’s own guidelines ;).

Enjoy the weekend. Stay safe.

https://www.youtube.com/watch?v=TkU1ob_lHCw

A Coronavirus Kaleidoscope: Part VIII

It is a travesty that the decision as to how and when to reopen the economy is becoming so politicized. While it doesn’t seem unreasonable to suggest that our extreme shutdown over the last six weeks has saved as many or more lives as we have thus far lost to the Coronavirus, there is consensus among economists that the shutdown has already started a recession of now-undeterminable duration. I would submit that while we risk a tragic reappearance of illness and death if we reopen the economy either too soon or inappropriately, there is a credible argument that moving too slowly has its own potential to result in unnecessarily destroyed American lives: irretrievable poverty, serious damage to essential public services, increased suicide, mental-health related violence and suffering, and the general health and other ravages that destitution wreaks. At the global level — since our economy still drives the world economy – an extended and deep downturn will in many parts of the world cause chaos, famine, disease, and terror. Unfortunately, what we need is the measured judgment and courage of an Abraham Lincoln or a Franklin Roosevelt. I would venture that Bill Clinton was the only president we’ve had in modern times that combined the acute intelligence, knowledge (in two weeks of briefings and study, he would have made himself a lay expert) and exquisite feel for the rhythms of the country to be able to effectively make such a call. Currently, we have a leader who mused on April 23 that perhaps the virus might be cured by light or disinfectant injections into the body. (Mr. Trump has since said that he was being sarcastic. I suspect that you have seen the tape. He wasn’t.) (A friend commented in an email on Friday: “Have to run and do a shot of Lysol with my lunch.” Too good.)

There is a link immediately below to an article recently appearing in the Minneapolis Star-Tribune by Dr. Richard Levitan, opining that reduced oxygen saturation in the lungs without acute patient distress is an indication of COVID pneumonia and that such hypoxia can be detected in its early stages through use of a pulse oximeter (available without a prescription, but given a COVID-related run, perhaps now unobtainable by consumers until mid-summer). This piece particularly resonated with us because we have family experience with the danger of hypoxia and value of pulse oximeters.

https://www.startribune.com/what-i-learned-during-10-days-of-treating-covid-pneumonia/569857042/

There is a link immediately below to a Washington Post article by our son, describing Brazil’s perilous Coronavirus situation, wildly aggravated by the wantonly counterproductive actions of President Jair Bolsonaro. Mr. Bolsonaro’s complete denial of the virus’ danger makes President Trump by contrast appear reflective, cautious, and competent. Brazilians’ health has been left to responsible local leaders and their own diligence.

https://www.washingtonpost.com/world/the_americas/coronavirus-brazil-testing-bolsonaro-cemetery-gravedigger/2020/04/22/fe757ee4-83cc-11ea-878a-86477a724bdb_story.html

There is currently what I consider a tempest in a teapot over Senate Majority Leader Mitch McConnell’s recent comments that he didn’t favor having the federal government provide the states Coronavirus-related relief, and that he was instead “in favor of allowing states to use the bankruptcy route.” This was an absurd comment, even for Mr. McConnell. State and local governments employ between 15 and 20 million Americans, and the two levels of government collectively provide police, fire, sanitation, highway, and a host of other services valued by all Americans of all political stripes, not to mention … health professionals. Sen. McConnell has been in the Senate too long – obviously for many reasons, but in this context, due to his seeming obliviousness to the optics of his negotiating ploy. State and local governments of both red and blue states are going to be unable to provide critical services without federal help. An article in The Atlantic following Mr. McConnell’s comments suggested that he sees forcing states into bankruptcy as a means to require certain states to shed their wildly underfunded pension liabilities — while at the same time protecting their bondholders. I think the piece is hyperventilation. In this time of crisis, not even Mr. McConnell – although he alluded in his comments to an unwillingness to bail out states’ underfunded pension funds — can believe that being saddled with responsibility for leaving local governments without help in serving their constituents or for forcing states to terminate their pension obligations to thousands of Americans (many of whom are Trump supporters) can be an advantage politically. Candidly, I believe that for once, Mr. Trump gets it even if Sen. McConnell somehow doesn’t – part of the reason why I think progressives and commentators have overreacted to Mr. McConnell’s trial balloon. Democrats shouldn’t provide one cent of concession to his ploy, and let him swing. Whether such optimism is properly placed obviously remains to be seen.

As we grapple with the disease and its many consequences, it’s a pleasure to add entries to these pages that may bring a smile. Below is a YouTube in which Mr. … er … Trump provides another perspective to his claim that he was merely being sarcastic in his comments about light and disinfectant ;).

https://digg.com/@digg/trump-disinfectant-impression-NZUFSuel

As we begin another week: Stay safe.