Category Archives: Public Policy and Governance

Picking On A Democrat

Well, at least I think he’s a Democrat. After all, he was Barack Obama’s nominee for the Supreme Court.

I’m talking, of course, about Merrick Garland, who has finally convinced me that what I originally took to be prudence and respect for the necessary independence of the Department of Justice is really wishy-washy timidity bordering on incompetence. His performance as Attorney General reminds me of a long-ago insight/admission; when I was Indianapolis’ Corporation Counsel, a local political wheeler-dealer asked me if I would be interested in running for a judgeship. I told him that my personality tended more toward advocacy (I know–regular readers will be shocked!) and that I lacked the judicial temperament needed for a judgeship.

Perhaps that’s Garland’s problem, in reverse. Had McConnell not breached his duty and had Garland been seated on the Court, perhaps he would have performed well in that more measured role. But he’s been a huge mistake as Attorney General. The insight that evidently escapes him is that you don’t have to be impermissibly partisan to exercise proper control over the Department of Justice.

As Charles Pierce recently wrote in Esquire, Garland needs to be thanked for his service and shown the door.

I have come to the sad conclusion that, like Brian Wilson, Attorney General Merrick Garland just wasn’t made for these times, and, like Tom Hagen, he’s just not a wartime consigliere. I hung in there longer than most people I know. But, this week, the case against him got overwhelming. The man needs to be thanked for his service and then shown the door.

He is not equipped to use all the tools god gave the Department of Justice to thwart the genuine threat to the Republic that is El Caudillo del Mar-A-Lago, and the dangerous political climate he has created. The former president* should have been charged federally with insurrection literally years ago. (Hell, during Thursday’s oral arguments in the Supreme Court concerning the former president*’s eligibility under the 14th Amendment, even Justice Brett Kavanaugh wondered why he hadn’t been so charged, and Kavanaugh used to work for Ken Starr, if we’re talking about using all the DOJ’s tools at your disposal.) The DOJ should have gone hammer-and-tongs after all the members of Congress who had the slightest connection with the insurrection. Somebody higher than the bear spray crowd should have been arrested and held until trial. Some of the expensive loafers should have been confiscated during the booking process rather than all those duckboots.

Pierce praised Jack Smith, but noted that the appointment of a special counsel shouldn’t have been necessary. And then he got to what was “the end” for him–and for me.

Appointing a Republican hack like Robert Hur to “investigate” the non-crimes of the president was bad enough, but then to allow Hur to pile on a political hit piece about the president’s memory, thereby normalizing one of the former president*’s attack lines on DOJ stationery, is not admirably fair-minded, it’s constitutionally suicidal. God save us from the fair-minded. They’ll kill the country and wonder how they did it.

Garland evidently shares a widespread misconception harbored by pundits and many Democrats about America’s current politics: the belief that sane folks and MAGA extremists would be able to “work things out” if the sane folks would just be really, really “fair and balanced” in their responses to MAGA’s conspiracy theories, dirty tricks and lies. MAGA folks are just scared, and if we’re nice to them when they’re bludgeoning our Constitution and dismantling our government– if we just meet them halfway (or a bit further)– they’ll calm down and rejoin the ranks of the reasonable.

This is, to be polite about it, hogwash. The core MAGA cult is unreachable. They inhabit a different reality, one in which they are literally at war not only with the rest of America, but with the most fundamental idea of America.

Allowing Hur to include what was obviously a political hit job in a purportedly “investigative” report has been condemned by a number of prosecutors. It’s yet more evidence of Garland’s passivity–his utterly inadequate conduct of a position that requires more spine (okay, more balls) than he evidently possesses.

At some point, someone needs to tell Garland and other “make nice” Democrats that they are playing pickle ball against people waging war with AK-47s.

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Please Share Widely

In November, Hoosiers will vote to fill an open seat for U.S. Senate. Despite primary challenges, the choice will almost certainly be between Marc Carmichael and Jim Banks.

I thought a comparison of their positions would be useful–and for rational voters, motivating. (Marc’s website has background on these issues.)

Abortion: Marc wants to codify Roe v. Wade.

Banks has an A+ rating from Pro-Life America, and a 100% lifetime rating from the National Right to Life Committee. His voting record on abortion/reproductive health can be accessed here.

Gun Violence: Marc wants to reduce America’s gun violence by passing a ban on military-style assault weapons and he supports a national Red Flag law.

Banks opposes both. He supports concealed carry and has voted against background checks for private sales. His voting record on gun issues can be accessed here.

Environment: Marc recognizes the threat posed by climate change and will work to safeguard the environment for our children and grandchildren.

Banks calls climate change a “liberal hoax,” and the Biden Administration’s environmental efforts “a war on energy.” The League of Conservation Voters gives him a 1% lifetime rating. His votes on the environment can be accessed here. 

White Christian Nationalism/Racism. Marc condemns bigotries of all kinds, and emphasizes the importance of fighting racism, anti-Semitism, Islamophobia, and bigotries of all kinds.

Banks created the “anti-Woke” caucus in the House of Representatives and has introduced legislation to outlaw any remaining affirmative action in college admissions. He has been dubbed “Focus on the Family’s Man in Washington.” He opposes all DEI (Diversity, Equity and Inclusion) programs.

LGBTQ+ issues. Marc has called for an end to the demonizing of trans children and supports the civil liberties of LGBTQ+ Americans.

Banks has been vocal in his opposition to gay rights generally, and to trans children especially. In addition to his “Anti-Woke Caucus,” he has supported efforts to ban trans people from the military, prevent trans women from participating in women’s sports, and prevent medical personnel from treating children for gender dysphoria. He recently sponsored a bill that would prevent agencies placing children in foster homes from taking measures to see that gay and trans children would not be placed with foster parents who have religious objections to homosexuality, saying that refusal to place those children in such homes was discrimination against religion.

Public Education/Teachers and Librarians. Marc opposes the recent efforts to censor books and intimidate schoolteachers and librarians. He is particularly concerned about Rightwing efforts to dictate to schools and colleges what they can and cannot teach.

Banks has attacked both public and private schools; he vowed to investigate the National Association of Independent Schools, focusing on the group’s role in political advocacy and its tax-exempt status. He has threatened to “expose” what he calls widespread political indoctrination in the public schools, and claims that lawmakers have a “moral duty” to investigate the use of academic accreditation associations as “political tools by leftist ideologues.” When he was in the Indiana legislature, he voted to allow instruction in creationism and supported educational vouchers that sent tax dollars to private, overwhelmingly religious schools.

Wages and Collective Bargaining. Marc supports a living wage and the right of workers to bargain for it. He believes that the recent signs of union resurgence are good news, and he joins with the 67% of Americans who—according to Gallup–support organized labor in the US.

Banks gets a zero rating from the AFL-CIO. When he served in the Indiana legislature, he supported “Right to work” legislation (dubbed by labor as “Right to work for less.”) On vote after vote in Congress, he has voted against labor; a list of those votes can be seen here. 

Healthcare. Marc supports Medicare for All, which would save an enormous amount of money (an estimated $600 billion per year, not including savings on prescription drugs) while providing everyone in America with access to high-quality health care coverage.

Banks voted against the most recent expansion of Medicaid and supports legislation that would ban vaccine mandates. He has voted to repeal the ACA, and against legislation that would prevent insurers from discriminating on the basis of pre-existing conditions.  A review of all of his healthcare votes is here.

Immigration. Marc supports critically needed reform of America’s immigration laws, to allow us to address the chaos at the border, and he supports a path to citizenship for DACA children and other undocumented persons who meet certain requirements.

Banks supports finishing Trump’s wall on the southern border, eliminating federal funding for sanctuary cities, and the deportation of “criminal illegal aliens.” He opposes any legislation granting amnesty for any undocumented persons (presumably including children currently protected by DACA) and opposes any expansion of guest-worker programs.

Other: Marc wants to ensure a fair, impartial and ethical judiciary; Banks enthusiastically supported the rushed confirmation of Amy Coney Barrett and other deviations from longstanding norms.

Marc supports reforming the tax code to ensure that the rich pay their fair share, while Banks opposes any increase to the tax rate on profits earned from the sale of stocks, bonds, and real estate.

Marc also supports reclassification of marijuana to Schedule 3, and further research on its effects. Banks has voted repeatedly against efforts to fund research into the effects of marijuana. Banks’ votes on issues related to pot are here.

In November, Hoosiers will choose between a reasonable, thoughtful person who actually understands government, and an extreme MAGA culture warrior who will be generously funded by the usual suspects.

We have eight months to inform voters of the implications of that choice.

Valentine’s Day is tomorrow. The only valentine I want is the widest possible sharing of this information with Hoosier voters.

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The Stakes II

A couple of days ago, I considered the stakes of this year’s election choices, and speculated about whether and to what extent the abortion issue will drive both turnout and results. What I failed to explain ( thanks to the word limit I have self-imposed for these daily rants) is why the debate about reproductive choice is in reality about far more than a woman’s right to control her own reproduction, important as that is.

The deeply dishonest Dobbs decision struck at a fundamental premise of America’s Constitution, as we have come to rely upon it– the belief in limited government.

When politicians talk about “limited government,” they generally focus on the size of government, but the U.S. Constitution defines those limits in terms of authority, not size. What is to be limited is the power of government to prescribe certain decisions that should be left to the individual. In the original Bill of Rights, the federal government was forbidden to censor speech, prescribe religious or political beliefs, and take other actions that were invasions of fundamental rights–rights for which early Americans demanded recognition.

Over the years, those limitations on federal government power were imposed on state and local government units, and evolving cultural and social norms prompted a fuller understanding of what sorts of decisions individuals are entitled to make without government interference. I frequently cite what has been called the Libertarian Principle, because that principle undergirds America’s particular approach to government. The principle is simple: Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of someone else, and so long as they are willing to accord an equal liberty to their fellow citizens.

The gender of your chosen mate, your adherence to a non-Christian religion (or your utter rejection of the notion of divinity), your choice to reproduce or not, and a number of other life choices are simply none of government’s business. (As Jefferson is often quoted, such decisions “neither break my leg nor pick my pocket.”)

The Libertarian Principle was central to the original Bill of Rights, and its application has  extended as “facts on the ground”–scientific and cultural–have changed. Ever since 1965, when the Supreme Court handed down its decision in Griswold v. Connecticut– informing the Connecticut legislature that a couple’s decision to use contraceptives was none of government’s business–the belief that there are areas of our lives where government simply doesn’t belong has been absolutely central to Americans’ understanding of liberty.

When I was much younger, the importance of limiting government to areas where collective action was appropriate and/or necessary—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.

It’s critically important to understand that what is really at stake in what we shorthand as the “abortion issue” is that fundamental Constitutional premise. Forcing women to give birth, denying medical care to defenseless trans children or forbidding school children to read certain books are not “stand-alone” positions. They are part and parcel of an entire worldview that is autocratic and profoundly anti-American.

I used to point out that a government with the power to prohibit abortion is a government with the power to require abortion. (As an ACLU friend used to say, poison gas is a great weapon until the wind shifts.)

The issue at the heart of the Bill of Rights–as I interminably repeated to my students–isn’t what decision is made. The issue is who gets to make it. In the government system devised by our Founders, certain decisions are simply off-limits to government. I may disagree with your religious beliefs or political opinions; I may disapprove of your choice of marriage partner or your selection of reading material–but I cannot use the government to countermand your choices and require behaviors more to my liking.

It is that fundamental premise that is at stake in this year’s elections, which will pit the MAGA theocrats and autocrats against those of us who want to preserve America’s hard-won civil liberties and individual rights.

The abortion issue is about so much more than abortion, and I have to believe that, at least at some level, most Americans realize that.

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A No-Win Choice

The Washington Post recently ran a story about the 91-year old Republican woman who is a plaintiff in the Colorado case that removed Donald Trump from that state’s ballot.

In one way, the piece was just one more reminder of how very far today’s GOP is from the political party it used to be. The woman being profiled, Norma Anderson, was described as a trailblazing former GOP legislator, and she joins people like Liz Cheney and other “Never Trumpers” in reminding us that what is on display these days is a very far cry from both conservatism and what the Grand Old Party used to be.

But that article is only one commentary on a critically-important and unprecedented issue: should Trump be barred from the ballot under the very clear language of Section 3 of the 14th Amendment?

That Section reads as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Guardian was among several media outlets that have reported on an amicus brief filed with the Supreme Court by some of this nation’s most eminent historians. Twenty-five historians of the civil war and Reconstruction argued in support of the Colorado decision to remove Trump from the ballot.

“For historians,” the group wrote, “contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th amendment [ratified in 1868] is most probative. Analysis of this evidence demonstrates that decision-makers crafted section three to cover the president and to create an enduring check on insurrection, requiring no additional action from Congress.”

Sean Wilentz of Princeton is a well-regarded historian who did not participate in the Supreme Court brief, but he too has dismissed arguments for allowing Trump to remain on the ballot.

“By their reasoning,” Wilentz writes, “Trump’s misdeeds aside, enforcement of the 14th amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.”…

 “Whether motivated by … fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, [commentators who say Trump should stay on the ballot] betray a basic ignorance of the relevant history and thus a misconception of what the 14th amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.”

No kidding. And they’re ducking and weaving…

“Textualists” and “original intent” devotees on the Court are faced with unambiguous language buttressed by reams of contemporaneous evidence submitted by the historians. The hearing Thursday telegraphed the Court’s reluctance to give the Fourteenth Amendment language its obviously intended effect. The decision is likely to be another nail in the coffin of this Court’s eroding legitimacy.

It’s true that a decision following the clear Constitutional language would run the risk of unleashing a violent reaction from the populists and neo-Nazis who support Trump.  Recognition of that probability has led some pundits to argue that the Court should punt–that it should “save democracy” by leaving Trump’s fate to the tender mercies of the voting public.

I understand that desire, which the Court clearly shares.

I truly believe that the likely match-up between Biden and Trump will result in a massive repudiation of Trump and his cult–that Trump’s intensifying and increasingly obvious mental decline, on top of his ignorance, narcissism and generally repulsive persona will lead to a massive rejection of the GOP at the polls. (Discount the polling averages that seem to show Trump even with or defeating Biden; as several scholars have noted, those averages include a large number of low-quality, partisan polls with which GOP propagandists have “flooded the zone.”)

It would be far more satisfying to defeat Trump at the polls, but America is facing a crucial test of our commitment to the rule of law. Are we, as John Adams famously proclaimed, a “nation of laws, not men”? Or are we a nation of scofflaws, ready to abandon rules when we find them inconvenient or unpopular?

The Court appears ready to place us among the scofflaws.

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The Stakes

Bret Stephens is a regular opinion writer for the New York Times. He is a self-described conservative who shares a Monday column with liberal Gail Collins. Stephens is a “never Trumper”–and very clear-eyed about the threat posed not just by Trump, but by the current GOP, and he has a wicked way with words. A few days ago, when Collins asked him what the remaining sane Republicans would do about the immigration bill, his response was dead-on perfect:

So-called sane House Republicans are basically passengers in a car being driven at high speed by a drunk. There’s no getting out of the car. And they don’t dare tell the driver to slow down because who knows what he’ll do then.

As Hoosiers are being inundated with advertisements from the candidates vying for the GOP nomination for Governor, the accuracy of Stephens’ description is evident. 

On the one hand, we have the MAGAs. Mike Braun is promising to fix problems that are matters of federal jurisdiction (why not stay in the Senate, Mike, if those are your issues?) and repeatedly reminding voters that he is Trump’s choice. Creepy Eric Doden is quoting the bible,  promising to “protect life” and “always back the Blue.” And we have Brad Chambers– the least scary of the lot (which isn’t saying much)–trying to avoid climbing into the drunk driver’s speeding car by focusing on job creation and his “outsider” claims.

I’ve missed ads from Lt. Governor Susanne Crouch and disgraced former Attorney General Curtis Hill–I assume we’ve been (mercifully) spared those due to the lack of zillionaire status that allows the others to spend lots of their own and their families’ money.

All of them support Indiana’s abortion ban. And that raises a question: how much weight will Hoosier voters place on the abortion issue when it is one issue among others on the candidates’ agendas?

Every state that has voted on the issue of reproductive rights in a stand-alone vote has upheld those rights, even deep-red states. Pundits argue, however, that voters will be less likely to vote against candidates whose anti-choice positions are only one position among many. When  the issue is separated from a campaign for public office, presumably, it is simpler for voters to understand what’s at stake and to register an “up or down” preference.

That belief may have been what  has convinced pro-Trump groups to formulate an “Anti-Abortion Plan for Day One.”

In emerging plans that involve everything from the EPA to the Federal Trade Commission to the Postal Service, nearly 100 anti-abortion and conservative groups are mapping out ways the next president can use the sprawling federal bureaucracy to curb abortion access.
 
Many of the policies they advocate are ones Trump implemented in his first term and President Joe Biden rescinded — rules that would have a far greater impact in a post-Roe landscape. Other items on the wish list are new, ranging from efforts to undo state and federal programs promoting access to abortion to a de facto national ban. But all have one thing in common: They don’t require congressional approval.

“The conversations we’re having with the presidential candidates and their campaigns have been very clear: We expect them to act swiftly,” Kristan Hawkins, the president of Students for Life, told POLITICO. “Due to not having 60 votes in the Senate and not having a firm pro-life majority in the House, I think administrative action is where we’re going to see the most action after 2024 if President Trump or another pro-life president is elected.”

The Heritage Foundation’s 2025 Presidential Transition Project — a coalition that includes Students for Life, Susan B. Anthony Pro-Life America and other anti-abortion organizations — is drafting executive orders to roll back Biden-era policies that have expanded abortion access, such as making abortions available in some circumstances at VA hospitals. They are also collecting resumes from conservative activists interested in becoming political appointees or career civil servants and training them to use overlooked levers of agency power to curb abortion access.

The linked article details the plans, and makes it very clear that the the right of a woman to choose to terminate a pregnancy will be at the very center of the 2024 federal election.  It will also be at the center of Indiana’s election for U.S. Senate–a contest that will likely pit “anti-woke” culture warrior Jim Banks, who supports a national ban with zero  exemptions, against Marc Carmichael, who wants to codify Roe v. Wade.

In November’s election, we’ll see whether voters understand that they are choosing between “forced birth” candidates and those who will protect women’s health and equality.

I’m pretty sure they will.

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