Playing The Culture-War Card

In 2004, when John Kerry was running against George W. Bush, my youngest son was a Kerry volunteer. On Election Day, he worked at polls in Ohio, having (quite reasonably) concluded that Indiana was a lost cause. I still remember his description of the turnout in the precinct to which he’d been assigned; the culture war that year had targeted LGBTQ folks, and Mitch McConnell’s GOP had made support for a constitutional amendment prohibiting same-sex marriage a major Republican talking point.

My son said a number of voters came to the polls “dripping animus” and eager to “vote against the gays.”

Now, I have no idea where that polling place was, or how representative those voters were, but post-election analyses did suggest that anti-gay bigotry had driven increases in GOP turnout.

I thought about that election when I read a New York Times report to the effect that McConnell is going back to the culture war well in 2020

Senator Mitch McConnell is about to plunge the Senate into the nation’s culture wars with votes on bills to sharply restrict access to late-term abortions and threaten some doctors who perform them with criminal penalties, signaling that Republicans plan to make curbing a woman’s right to terminate a pregnancy a central theme of their re-election campaigns this year.

After months of shunning legislative activity in favor of confirming President Trump’s judicial nominees — and a brief detour for the president’s impeachment trial — Mr. McConnell, Republican of Kentucky and the majority leader, is expected to bring the bills up for votes on Tuesday. Both lack the necessary 60-vote supermajority to advance, and the Senate has voted previously to reject them.

But by putting them on the floor again, Mr. McConnell hopes to energize the social conservatives who helped elect Mr. Trump and whose enthusiasm will be needed to help Republicans hold on to the Senate this year, while forcing vulnerable Democrats to take uncomfortable votes on bills that frame abortion as infanticide. The rhetoric around the measures is hot; Mr. Trump, for instance, has pointed to one of the bills to falsely assert that Democrats favor “executing babies AFTER birth.”

The bills are–surprise!–deeply dishonest. But the content is irrelevant–McConnell isn’t trying to pass them. He’s playing the political game that has characterized his entire career–a game in which “winning” has nothing to do with responsible governance or the common good, but is solely about gaining and retaining political power.

There are good reasons for dubbing McConnell “the most evil man in America”–or, as one magazine headline put it “The Man Who Broke America.”

Since the 2018 midterms, the House has passed hundreds of bills–many of them bipartisan–addressing climate change, voting rights, background checks, paycheck fairness, the minimum wage and numerous other issues that affect American citizens. McConnell has refused to even hear any of them. In fact, he has not allowed any Senate legislative activity other than hearings on Trump’s right-wing (and frequently incompetent) judicial nominees.

Some of those House bills would pass; others wouldn’t. Some may be well-thought-out, others may not be. The only way that citizens can evaluate their merits is if the Senate conducts reasoned debates leading to those determinations.

McConnell doesn’t care. His decision to hold hearings on bills that everyone knows won’t pass–and would do nothing to improve the lives of Americans if they did–is intended only as political theater that he believes will generate passion among the culture warriors and thus increase turnout by the far fringes of his increasingly toxic party.

It’s shameless, morally depraved, and entirely typical.

As much as I want to see Donald Trump perp-walked out of the White House, his manifest stupidity and incompetence makes him less dangerous than Mitch McConnell, who is, unfortunately, very smart.

And more despicable than words can convey.

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A New Normal?

Given the daily headlines highlighting the incompetence and corruption of the Trump Administration, an assertion that America will not and cannot “go back” to a normal Presidency isn’t exactly welcome.

But that was the premise of an essay in Politico Magazine  a couple of weeks ago.

President Donald Trump has spent three years incinerating a group of practices commonly lumped together under the nebulous category of “norms and traditions,” causing the chattering class to worry that he’ll “destroy the presidency,” “undermine American democracy,” “erode” our institutions with each break with precedent or decorum. There are also those, including presidential candidate Joe Biden, who insist that things can go back to normal when Trump is gone. Either in January 2021 or January 2025, these optimists hope, America will experience a restoration of these timeless customs.

Here’s the problem: Many of these “presidential norms and traditions” that Trump has left by the wayside aren’t timeless at all; they’re actually quite new. They grew up alongside and in reaction to the expansion of both the federal state and the presidency—a process that began in the early 20th century but gained steam from the 1930s onward. With the growth of what Arthur Schlesinger Jr. called the “imperial presidency,” each occupant of the Oval Office has left his imprimatur on the development of what we think of as normative presidential conduct.

In other words, these norms emerged as a response to America’s changing needs.

Noting that America has changed dramatically over the 200+ years of its existence, and that  those changes require corresponding adjustments in governance is the sort of otherwise obvious observation that gives self-styled “originalists” fits. They like to believe that “living constitutionalism” is just judge-made law, unmoored from constitutional foundations. In reality, living constitutionalism is the rational application of “original intent,” because it requires safeguarding the original values that animated our Constitution and Bill of Rights in situations that the Founders could never have anticipated.

Our challenge is to decide which of the numerous norms being trashed by Trump are needed to protect those foundational values, and thus must be restored.

The article points out that many of the behaviors we think of as long-established– congressional oversight mechanisms and restrictions on FBI and CIA political activity, for example–are relatively new, prompted by the criminal abuses of the Nixon Administration.

All of which is to say, the idea of independent agencies staffed by nonpartisan career public servants, free of political interference, is a very recent development. Once unraveled, it is not certain to be reassembled.

New, however, is not the same thing as unimportant.

The takeaway is not that certain traditions lack value. On the contrary, it’s pretty reasonable to expect that presidents not misdirect law enforcement and civilian officials to do their political bidding, that presidents be transparent with the media, and that courts remain free of political influence. The point, rather, is that these norms were not timeless features of our system. They emerged over 50 or so years in response to excesses that accompanied the growth of the federal state and in response to a popular sense that citizens required greater visibility into, and accountability from, federal officeholders whose purview grew enormously in the modern era.

As I read through the article, I was anticipating some sort of prescription for how we might re-institute the norms that have clearly proved their importance. I didn’t get it. The article ended by noting that “broken eggs can’t be mended.”

Perhaps we can’t fix broken eggs, but we can–and must–fix America’s federal government.

Once Trump is gone–and I fervently hope that departure occurs sooner rather than later–we need to take a step back and decide what rules, systems, and cultural expectations are essential to advancing–and perhaps finally beginning to live up to– American values and ideals.

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But Reality Is So Complicated…

Paul Krugman devoted a recent column to the conspiracy theories that have emerged to “explain” the coronavirus. My only quibble with the column was its narrow focus; I’ve come to the conclusion that a substantial percentage of Americans find reality so intimidating, messy and/or incomprehensible, the only way they can make sense of it is to assume that someone or some group must be intentionally responsible for the aspects of that reality they most fear.

It can’t be random–“those people” must be engaged in a purposeful effort to harm or mislead them.

We really haven’t come very far from colonial days, when clerics opposed the newfangled smallpox vaccine because smallpox was undoubtedly sent by God, and inoculating people against it would constitute interference with God’s plan. Just substitute “those people”–the Deep State, the bankers, the Jews, the DNC, whoever–for God.

It’s just really hard for some people to accept randomness, and the fact that–as the undignified saying goes–shit happens.

As Krugman writes

We still don’t know how much damage Covid-19 — the coronavirus disease — will do, but it’s reasonable to be very concerned. After all, it appears to be highly transmissible, and it is probably a lot more lethal than ordinary flu.

But not to worry, say right-wing pundits and news organizations: It’s all a hoax, a conspiracy by the liberal media to make Donald Trump look bad. Administration officials and Trump himself have echoed their claims.

These claims are, of course, crazy. Among other things, Covid-19 is a global phenomenon, with major outbreaks ranging from South Korea to Italy. Are the South Korean and Italian media also part of a conspiracy to get Trump?

I agree with Krugman that this particular reaction was predictable to anyone who  follows the right-wings long-running war on facts, especially when facts prove  inconvenient or conflict with the right’s preferred version of reality.

And as Krugman also reminds us, much of their insistence on attributing unwanted outcomes to nefarious evil-doers rests on projection.

In the case of Covid-19 the usual suspects were, in part, engaged in projection. After all, they themselves engaged in a concerted effort to politically weaponize the 2014 Ebola outbreak against Barack Obama, whose response was in reality smart and effective. By the way, in the aftermath of that outbreak the Obama administration put in place measures to deal with future pandemics — all of which Trump scrapped.

Denial, as my grandfather used to say, isn’t just a river in Egypt.

Climate change? As recently as the 2018 midterms, a survey found 73 percent of Republican senators denying that man-made climate change is happening. The success of Obama’s economic measures?  Right-wing politicians and pundits insisted that the numbers were being cooked. (Those evil “deep state” folks, no doubt…) Etc.

But fair is fair: this sort of nonsense is hardly confined to the crazy people on the right, although clearly, the right has a majority of the crazies.

For example, a troubling percentage of his supporters are absolutely convinced that if Bernie isn’t the nominee, it will be due to a plot by “the establishment” to rig the process. Despite the results of Super Tuesday, it is evidently inconceivable to them that a majority of Democratic voters might prefer Biden or someone else–that large numbers of voters might honestly believe that Bernie would be less likely to beat Trump and more likely to doom Democrats’ down-ticket prospects.

As a column from Talking Points Memo put it,

To hear many Sanders surrogates describe it, the establishment and power brokers closed ranks and pushed Biden into the lead. But again, this just pretends like millions of voters don’t exist, or function as pawns of party elites. So you have one theory of political agency for Sanders supporters and another for everyone else. This stands no kind of political scrutiny.

Party workers making anti-Bernie arguments are engaging in typical (small-d) democratic campaigning, not “rigging” an election. Similarly, doctors aren’t conspiring to hide the “dangers” of vaccinations. Scientists aren’t part of an international cabal engaged in falsifying data on climate change. The government isn’t running a secret program entailing the discharge of dangerous airplane “contrails.”

Elvis’ death wasn’t faked, and there really isn’t a monster hiding under the bed.

In fact, there’s no one here but us flawed human beings trying to make sense of the shit that happens in a complicated world.

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An Important Test For The Court

In the three-plus years that Donald Trump has occupied the Oval Office–I deliberately didn’t say “has been President” because in any rational sense, he has not fulfilled that function–longstanding norms of American governance have been turned upside down.

Nowhere have the deviations from expectations been more worrisome than in the courts.

For years, legal scholars have debated whether this or that issue should be settled through litigation or by electoral politics. But I am aware of no credible argument that the courts should be divested of their independence and turned into supine tools of the executive branch.

Our idiot President recently called upon Supreme Court justices who disagree with him to recuse themselves–displaying not only his trademark contempt for constitutional checks and balances, but his embarrassing ignorance of American constitutionalism. That contempt and ignorance would not ordinarily be worthy of note–every day, the insane tweets and verbal diarrhea bear ample witness to both–except for a case that is making its way to the Supreme Court.

A recent article by Nancy LeTourneau at Washington Monthly pointed to the disquieting reason for Trump’s unprecedented assault on the Supremes. She begins her analysis by pointing to a truly telling statistic:

Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.

As she notes, the Trump administration’s response to these failures has been to appeal directly to the Supreme Court–to ask the Court  to expedite emergency relief from the injunctions of the lower courts. Le Tourneau quotes one legal scholar to the effect that Trump has gone to the Supreme Court with such a request 24 times in less than three years– compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined.

Trump has no understanding of the legitimacy concerns raised by such petitions, of course. He actually believes that any criticism of him or his administration should be grounds for recusal, criticism and vilification. And he has other concerns as well.

The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.

In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration.  Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.

All of these issues have prompted Trump’s defensive and unPresidential behavior. But even more significant is a case  that could require him to release his tax returns.

From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.

Here, then, is a critical test of the Court’s independence. Will Trump’s appointees behave like the grateful tools he clearly believes they are? Will they demonstrate allegiance to Trump, or to the Constitution?

The answer to that question will tell us whether we retain a system based–however insecurely–on the rule of law.

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Scalia Was Right

Well, that’s a headline I never thought I’d write!

Not that I always disagreed with Antonin Scalia; he was pretty good on free speech, for example. But overall, I found his jurisprudence intellectually dishonest, and his “originalism” disingenuous–especially because he was smart enough to know it.

What makes the headline particularly ironic, is the fact that my initial reaction to the decision he authored in Employment Division v. Smith was that it was wrong. It was certainly widely criticized.

In that case, members of a Native American Church, who were counselors at a private drug rehabilitation clinic, were fired because they had used peyote–possession of which was a crime under Oregon law– as part of a religious ceremony.  The counselors filed a claim for unemployment compensation with the state, but the claim was denied because their dismissal was deemed work-related “misconduct.” The Oregon Courts of Appeals reversed, finding the denial an infringement of their religious liberty, and the Oregon Supreme Court agreed. The state then appealed to the Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime.

Scalia ruled that the denial of unemployment benefits was proper because the law against peyote use was a “law of general application.” That is, it hadn’t been passed as an effort to target Native American religious practices, but as part of a legislative effort to combat drug abuse generally. The fact that a law of general application inadvertently hindered a religious practice might be unfortunate, but that didn’t make its enforcement unconstitutional.

Because the law’s application in this case so obviously–and in the opinion of most people, unnecessarily– punished a longstanding religious ritual, the decision generated considerable outrage, and if memory serves, prompted passage of the Religious Freedom Restoration Act, requiring the Courts to apply a more rigorous judicial standard in such cases. (This was not the infamous Indiana version.)

On reflection, however, I came to the conclusion that Scalia was right.

Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry? To take an obvious extreme, we have laws against murdering babies; should the ritual sacrifice of her newborn in accordance with a sincere religious belief exempt the parent from punishment?

If not, when should religious belief trump civil law?

We are once again having this debate, as a result of the tension between laws intended to ensure civic equality and religious dogmas that label certain others “sinners.”

The Washington Post recently reported on one such conflict.

The Supreme Court on Monday added a major case to its docket this fall to decide who prevails when a group’s religious beliefs conflict with a city’s attempt to eliminate discrimination.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from same-sex couples who want to take care of children. The case will be heard in the term that begins in October.

The Third District Court of Appeals ruled for the city, holding that it was not targeting the Catholic agency in enforcing its policy prohibiting the city from doing business with entities that discriminate.

The case is being seen as a major test of whether the Court will reconsider precedents, especially the precedent established in Employment Division v. Smith, to the effect that generally applicable laws that don’t intentionally target religious groups are constitutionally enforceable.

It will be interesting to see the reaction of those politicians and pundits who continue to laud Scalia for his convoluted opinions privileging religion as “tradition.”

But then, for all those who counted themselves Scalia fans, it was all and always about results–not consistency.

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