Asking The Wrong Question

As the Senate “considers” the nomination of Brett Kavanaugh (note quotation marks, since  support for this particular nominee is entirely partisan and no genuine consideration of his record is being allowed), much of the focus is on his presumed “pro life” approach to cases involving abortion.

Media framing of this issue highlights the most frustrating element of America’s “pro-choice” or “pro-life” public debate:  the persistent refusal to confront the actual question, which is not whether a pregnant woman should continue or terminate her pregnancy.

The question is: who should have the power to make that decision? 

As I have repeatedly argued, a government with the authority to forbid abortion is a government with the authority to require it. I usually point to China, where the government has done precisely that, but yesterday, my lawyer son pointed me to a case right here in the good old U.S. of A.– and a judicial decision by none other than Brett Kavanaugh.

As Salon reported, 

In 2007, as an appellate judge in Washington, D.C., Kavanaugh was presented with an unusual case involving two women who had wanted to continue their pregnancies but had been forced to have abortions instead. They sued and Kavanaugh ruled against them, denying their claims that they had a right to be consulted about the decision to terminate their pregnancies.

Many Americans, probably most, understand the abortion debate to be about a struggle between the right of women to bodily autonomy and the “right to life” that anti-choicers claim embryos and fetuses have. In reality, as this case shows, the legal debate is really only about autonomy — so much so that an anti-choice judge like Kavanaugh ruled against women who wanted  to “choose life,” as conservatives say, rather than allow them a greater measure of autonomy….

The case is a complex one, but the basic story involved three women who received care from the District of Columbia Mental Retardation and Developmental Disabilities Administration. All three women had intellectual disabilities and had been determined legally incompetent. One woman had an elective eye surgery and two had abortions, all chosen for them without any consideration of their wishes. The women argued that they had a right to have their wishes considered, but Kavanaugh ruled against them….

Legal standards regarding who is competent to make medical decisions for themselves are complicated and vary quite a bit from state to state. But Mathis said that even in states that have the fewest autonomy rights for people with certain disabilities, “most courts consider the person’s wishes,” even if they may ultimately rule against them. Kavanaugh, however, “just rejected the notion that there was any reason at all” to ask the women in that case what they wanted.

I emphasized that last line, because it illuminates what is truly at stake in these arguments. The question is not “to abort or not to abort.” The question is: who decides? The Bill of Rights is essentially a list of things that government does not get to decide–what you read, what you believe, whether or to whom you pray. Government officials don’t get to decide to  search you (or your “papers or effects”) simply because you look shifty, or out of place, or because the officer “has a hunch.”

As snotty as the faux originalists are about the constitutional “penumbra” referenced in Roe, it is impossible to read through the Bill of Rights without recognizing that the entire document rests on the Founder’s concern to protect personal autonomy and to safeguard the right of individuals to make their own moral and political decisions–including what the Court has subsequently dubbed “intimate” decisions–free of government coercion or interference. The 9th and 10th Amendments make it clear that rights not “enumerated” (that is, not specifically listed) are not to be “denied or disparaged,” and that powers not specifically delegated to the central government are to be retained by the states and the people.

It is an act of intellectual dishonesty to dismiss the limits that the Bill of Rights places on government’s authority to control its citizens’ exercise of self-determination.

The question, I repeat, is not “what shall be decided?” but “who shall decide it?”

The question for Brett Kavanaugh is not whether he fancies himself “pro-life.” It is whether he is willing to acknowledge that the power of government to control women’s lives is limited by our constitution.

His jurisprudence makes it abundantly clear that he is not willing to make that acknowledgement. For that reason (and a number of other very troubling decisions he has handed down), he is unfit to sit on the nation’s highest court.

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False Equivalence 101

An article by Jeffrey Toobin in The New Yorker references a new book on right-wing media, written by Yochai Benkler, Robert Faris, and Hal Roberts. The book–to be published next month by Oxford University Press– is titled, “Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics.”

It debunks a favorite belief of politicians and journalists. As Toobin writes,

The Washington conventional wisdom presupposes a kind of symmetry between our polarized political parties. Liberals and conservatives, it is said, live in separate bubbles, where they watch different television networks, frequent different Web sites, and absorb different realities. The implication of this view is that both sides resemble each other in their twisted views of reality. Rachel Maddow and Sean Hannity, in other words, represent two sides of the same coin.

This view is precisely wrong.

The two sides are not, in fact, equal when it comes to evaluating “news” stories, or even in how they view reality. Liberals want facts; conservatives want their biases reinforced. Liberals embrace journalism; conservatives believe propaganda. In the more measured but still emphatic words of the authors, “the right-wing media ecosystem differs categorically from the rest of the media environment,” and has been much more susceptible to “disinformation, lies and half-truths.”

This assertion sounds as if it is itself the result of propaganda–liberal propaganda, in this case. But as Toobin reports,

“Network Propaganda” is an academic work at the crossroads of law, sociology, and media studies. Benkler is a law professor at Harvard and a co-director of the university’s Berkman Klein Center for Internet and Society, where Faris and Roberts both conduct research. The book is not a work of media criticism but, rather, of data analysis—a study of millions of online stories, tweets, and Facebook-sharing data points. The authors’ conclusion is that “something very different was happening in right-wing media than in centrist, center-left and left-wing media.” Accordingly, they wrote the book “to shine a light on the right-wing media ecosystem itself as the primary culprit in sowing confusion and distrust in the broader American ecosystem.”

The book examines the way in which that right-wing “ecosystem” works. Stories frequently begin on conspiracy theory sites like Infowars; if they remained there, most people would either fail to encounter them or see them for what they are. But they “migrate” to outlets like Fox News, that claim to follow principles of objective journalism. The authors note that there simply aren’t significant sites on the left that mirror those on the right by trafficking in “chronic falsity;”  furthermore, the “upstream sources” in the center and on the left do adhere to traditional journalistic standards, so they debunk rather than parrot the stories contrived by those few sites that  crank out leftwing propaganda.

This lack of symmetry is why “Pizzagate”–accusing Hillary Clinton of pedophilia and of molesting children in the basement of a pizza parlor–was widely reported, while unverifiable allegations that Trump had raped a 15-year-old quickly died.

The authors’ telling conclusion, based upon their data analysis, was that Trump’s election wasn’t the result of Russia’s (admitted) interference, nor to Cambridge Analytica’s manipulation of Facebook.

Rather, it was the feedback loop of right-wing quasi-journalism that had the most impact—and that hypothesis has profound implications not only for the study of the recent past but also for predictions about the not-so-distant future.

This analysis confirms the suspicions of several of my colleagues who have “lost” their previously rational parents to Fox News.

The sixty-four thousand dollar question is: in a country committed to freedom of speech and the press, what can we do about it?

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“I Quit”

Principled people who can do so are fleeing the Trump Administration. Those who cannot afford to take the moral high ground–the government workers with mortgages to pay and children to educate–are valiantly trying to hold their agencies accountable to the rule of law.

Talking Points Memo, among others, has reported on the departure of one who just left: the top watchdog overseeing student loans.

The Consumer Financial Protection Bureau’s “Student Loan Ombudsman,” responsible for guarding student borrowers against predatory lenders and scammers, has resigned in a scathing letter aimed at acting CFPB director Mick Mulvaney.

“Unfortunately, under your leadership, the Bureau has abandoned the very consumers it is tasked by Congress with protecting,” Seth Frotman’s resignation letter, obtained by NPR, read. “Instead, you have used the Bureau to serve the wishes of the most powerful financial companies in America.”

Not exactly surprising, in an administration where up is down, failure is success, accurate reporting is “fake news,” and corrupt practices are touted as “good business.”

Frotman’s job was to monitor and review of thousands of complaints from student borrowers. The Obama administration had introduced a number of regulations intended to protect those student borrowers against fraudulent practices; according to Frotman, Mulvaney and Betsy DeVos have worked “diligently” to eliminate those protections.

Frotman’s letter pointed to specific wrongdoing by Mulvaney, NPR reported, including the alleged suppression of a report from his office revealing that big banks were “saddling [students] with legally dubious account fees.”

In May, NPR noted, Mulvaney called for Frotman’s office to be incorporated into the Office of Financial Education, effectively proposing to remove Frotman’s office from direct enforcement actions and shifting it to an educational role.

Regarding another change — the Department of Education’s announcement last year that it would no longer share federal student loan oversight data with the CFPB — Frotman wrote: “The Bureau’s current leadership folded to political pressure… and failed borrowers who depend on independent oversight to halt bad practices.”

NPR has posted a copy of Frotman’s letter here.

My husband often reminds me that–while Americans are distracted by our demented President’s tweets, rages and sundry other embarrassing and destructive behaviors–his administration is busily dismantling the structures of accountable and legitimate governance–stacking the federal courts with right-wing ideologues, eliminating regulations protecting air and water quality, bleeding public schools of the resources needed to educate the country’s children, empowering theocrats, and weakening the rules that restrain the rich and powerful.

Even if November brings the hoped-for “blue wave,” and installs a Congress that takes its oversight responsibilities seriously, it will take years to restore both the rule of law and the American people’s ability to trust that their government is operating on their behalf.

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All The “King’s” Men (And Women)

The Washington Post’s Dana Milbank has been on a roll since the election of Donald Trump. It’s understandable–Trump provides a target for anyone who takes policy seriously, and an even bigger target for people who are tempted to berate pompous ignoramuses and moral cowards.

Milbank detests both categories.

In the linked column, he points to the obvious: the moral rot that Trump has brought with him to the political process has spread throughout the Republican Party. As he notes, what the President is doing is reprehensible; what the GOP leadership is not doing is unforgivable.(“Unforgivable” is actually my “pet name” for Mitch McConnell. At least, it’s the “pet name” I can use in polite company.)

Majority Leader Mitch McConnell (Ky.) stood on the Senate floor Wednesday morning for his first public remarks since the seismic events of the day before: The president’s former personal lawyer pleaded guilty to fraud and breaking campaign finance laws, implicating the president in a crime; the president’s former campaign chairman was convicted on eight counts of financial crimes, making him one of five members of Trump’s team who have been convicted or have admitted guilt; and a Republican congressman was indicted, the second of Trump’s earliest congressional supporters to be charged this month.

It was time for leadership. McConnell ducked.

Instead, he hailed Trump’s campaign rally in West Virginia the night before. He disparaged President Barack Obama’s record. He spoke about low unemployment “under this united Republican government.” He went on about coal, taxes, apprenticeship programs, health research, prisoner rehabilitation and more — and not a peep about the corruption swirling around the president. When reporters pressed McConnell in the hallway for comment, he brushed them off.

Paul Ryan didn’t come off any better. Milbank quoted Ryan saying he “needed more information.”

What more do you need, Mr. Speaker? What more will it take, Republicans? It seems nothing can bring them to state what is manifestly true: The president is unfit to serve, surrounded by hooligans and doing incalculable harm.

Milbank recounted the equally shameful silence of others in the GOP hierarchy, then wrote what most rational Americans–including those who once called the Grand Old Party home– are thinking:

This intolerable silence of the Republicans — through “Access Hollywood,” racist outbursts, diplomatic mayhem and endless scandal — is what allows Trump and his Fox News-viewing supporters to dock their spaceship in a parallel universe where truth isn’t truth. At Tuesday night’s rally in West Virginia, Trump’s irony-challenged audience could be heard chanting “Drain the Swamp!” and “Lock her up!” (Hillary Clinton, that is), just a few hours after Paul Manafort’s conviction and Cohen’s guilty plea.

Milbank dismisses the common wisdom that excuses Republican officeholders because they fear the party’s base.

Republican lawmakers fear that with 87 percent of Republican voters backing Trump, crossing him is political suicide. But this is circular. Support among the Republican base remains high because Republican officeholders validate him.

Milbank quotes the “weasel words” of various Republican Senators–Cornyn, Grassley, Graham and Hatch–and references the criminal charges recently filed against two GOP Representatives (who just happened to be the first two to climb aboard the Trump Train). His recitation makes it impossible to disagree with his conclusion:

If Republicans don’t put some moral distance between themselves and Trump, there will soon be nothing left to salvage.

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File Under “We Told You So”

The Guardian,among other publications, recently reported that Verizon “throttled” the presumably unlimited data of California firefighters while they were battling the blazes that were–and still are–engulfing communities in that state.

California firefighters’ ability to battle a huge wildfire was impeded by Verizon Wireless throttling their internet connection, in a moment advocates say demonstrates the high stakes of the battle over net neutrality.

Santa Clara county fire department had paid for what Verizon described as an “unlimited” data plan for various internet-connected devices, but the data flow was throttled to about 1/200th of the typical speed – unusably slow for any meaningful data transfer.

This restriction created problems for a command and control communications vehicle called OES 5262 as firefighters battled the Mendocino Complex fire, the largest wildfire in California’s history, in late July. The vehicle – essentially a fire engine that is fitted with computers and communications equipment – gets internet access via a device that uses a Verizon sim card. It is used as a hub to “track, organize and prioritize routing of resources around the state and country to the sites where they are needed the most”, according to the Santa Clara county fire chief, Anthony Bowden, in a lawsuit over net neutrality protections, first reported by Ars Technica.

Net Neutrality rules put in place under the Obama Administration would have protected the firefighters (or at least provided them with recourse), but those rules were repealed by Ajit Pai, Trump’s appointee to the FCC.  Pai was a former executive at Verizon, and Verizon has been one of the “big telecom” companies lobbying for the repeal.  Pai argued that the net neutrality rules would stifle innovation, and that they had been established on “hypothetical harms and hysterical prophecies of doom”.

With Pai at the helm, the FCC simply ignored massive numbers of emails arguing against repeal, and ignored as well a number of surveys that found more than 80% of Americans supporting Net Neutrality.

The July incident wasn’t the first time Verizon had throttled the firefighters’ data connection.

They had previously contacted Verizon in June when they were dealing with the Pawnee fire and December 2017 when they were battling a grass fire near Prado regional park.

According to emails included in court filings, in June 2018, the fire captain Justin Stockman contacted Verizon requesting that the data connection for a critical piece of communications equipment was unthrottled. A Verizon account manager responded by trying to upsell the fire department from a $37.99 plan to a $39.99 plan.

The Santa Clara fire department is part of a larger lawsuit against the Federal Communications Commission; the lawsuit seeks to overturn the repeal of net neutrality rules that prevent internet service providers from blocking, throttling and prioritizing customers on the basis of pay. The suit represents plaintiffs in twelve separate lawsuits that were consolidated into a single suit. Those lawsuits were filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies.

Probably the best explanation of Net Neutrality–and the consequences of its repeal–can be found by watching comedian John Oliver who has devoted two of his shows to the topic.

I guess it takes a comedian to explain why the loss of Net Neutrality is no laughing matter.

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