A Partisan Supreme Court

Now that we know a bit more about the Federalist Society’s nominee, I guess it’s time to talk about the Supreme Court.

In no particular order, and for what they are worth, here are some observations about the Court, the process and this nominee.

The Supreme Court was not intended to be a “democratic” (small d) entity; quite the contrary. The judicial branch is supposed to be a nonpartisan constraint on majoritarian passions when those passions threaten Constitutional principles and the rule of law. That said, its judges are supposed to be broadly representative of the (best of) our citizenry.  This nominee is the choice of a President who lost the popular vote by a margin of nearly three million, and whose approval ratings have rarely exceeded 40%; if he is confirmed, it will be with the votes of Senators from states with (an arguably unrepresentative) 45% of the population.

As one legal scholar has commented (link unavailable),

I think we’d all agree that the nation has been fairly evenly divided, all things considered, in presidential and congressional elections over the past 50 years. Yet there has been a Republican-appointed majority of the Court for the past 47 years, and that’s likely to continue for at least another 20-30, if not more. It doesn’t much matter what label we use to describe our system, “democracy” or otherwise. The salient point is that it is very possible that for my entire adult life–even if I am fortunate to live to a ripe old age–the Justices will not have been representative of the nation, and will have been systematically skewed in one direction for the entire period.

Over at Balkinization, Mark Graber points to a conflict between this nominee’s actual–highly partisan– jurisprudence and the “cliches” he and Trump use to describe his judicial philosophy:

Donald Trump and Brett Kavanaugh offered the American people two clichés when describing how Supreme Court justices should decide cases.  The first is that they must interpret the Constitution as written.  The second is that they should use common sense.  One problem is that in many important cases the two conflict.  The more serious problem is that when the two conflict, Kavanaugh always selects the option that promotes Republican policies and politics.

In 2012, Stephen Pearlstein wrote a column about one of Kavanaugh’s decisions, a decision invalidating EPA regulations that had been the subject of exhaustive research, numerous hearings, and years of negotiations with industry and environmental groups. (I strongly encourage you to click through and read the whole column.) Reading Kavanaugh’s decision, Pearlstein says

You’d have no idea that, in earlier decisions, the same court had found it a reasonable formula resulting in reasonable compliance costs, but sent an earlier version back to be reworked because it didn’t make the air clean enough.

Instead, what you get is 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.

You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts.

You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.

In other words, an arrogant and activist judge ruling on the basis of his personal political ideology.

Kavanaugh’s approach to gun laws also follows partisan predilections justified as respect for history and tradition. Because “semiautomatic rifles have not traditionally been banned and are in common use,” he has written,” they are protected under the Second Amendment.”

What happened to that professed commitment to common sense?

Perhaps the most comprehensive descriptions of Kavanaugh’s record–and reasons to oppose his elevation to the Court– are contained in a letter signed by hundreds of alumni of Yale and its law school. I strongly encourage reading that letter in its entirety, because it details numerous specific positions the judge has embraced (including his opposition to mandating coverage of pre-existing conditions by health insurance companies, and a truly bizarre opinion that Net Neutrality rules run afoul of the First Amendment). As the letter argues:

Support for Judge Kavanaugh is not apolitical. It is a political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people. Without a doubt, Judge Kavanaugh is a threat to the most vulnerable.

Much of the opposition to this appointment centers on Kavanaugh’s likely approach to Roe v. Wade. But Roe–which has already been “nibbled” to death in many states–is just the tip of a very large iceberg. Kavanaugh has consistently elevated religious doctrine over personal autonomy, and has disputed the existence of a wall of separation between church and state.

In the age of Trump, however, a position taken by Kavanaugh that I find even more chilling is his current view that Presidents should be above the law, at least while in office. As the Yale alumni wrote,

Judge Kavanaugh would also act as a rubber stamp for President Trump’s fraud and abuse. Despite working with independent counsel Ken Starr to prosecute Bill Clinton, Judge Kavanaugh has since called upon Congress to exempt sitting presidents from civil suits, criminal investigations, and criminal prosecutions. He has also noted that “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” This reversal does not reflect high-minded consideration but rather naked partisanship. At a time when the President and his associates are under investigation for various serious crimes, including colluding with the Russian government and obstructing justice, Judge Kavanaugh’s extreme deference to the Executive poses a direct threat to our democracy.

Does Judge Kavanaugh have the credentials and intellect to serve on the Court? Certainly.

Does he have the intellectual humility and “spirit of liberty” that Learned Hand once defined as “the spirit which is not too sure that it is right… the spirit which seeks to understand the minds of other men and women… the spirit which weighs their interest alongside its own without bias”?

Not even close.

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Sabotage

While the media and the country are being distracted by the daily crazy/sleazy coming from Washington, the Trump Administration is working feverishly behind the scenes to dismantle the rules: rules that protect us from dirty air and water, from discrimination in housing and education, and rules that guarantee us access to health care, among others.

The unremitting attack on the Affordable Care Act has been particularly effective. The GOP may not have been able to repeal it outright, but regulatory sabotage has been the next best tactic. Thanks to the administration’s actions–neutering and threatening to eliminate provisions of the ACA that were included in order to keep premiums affordable, health insurance rates continue to rise.

According to Larry Levitt at the nonpartisan, respected Kaiser Foundation,

New analysis: Insurers did very well in Q1 of 2018 in the individual market under the ACA. If not for looming repeal of the mandate penalty and expansion of loosely-regulated plans, we’d be looking at modest premium increases and even decreases for 2019.https://www.kff.org/private-insurance/issue-brief/individual-insurance-market-performance-in-early-2018/ …

Evidently, however, the administration has decided that killing affordability by raising costs was too incremental; a recent article from The Washington Post reported on a much more direct attack.

The Trump administration took another major swipe at the Affordable Care Act, halting billions of dollars in annual payments required under the law to even out the cost to insurers whose customers need expensive medical services.

In a rare Saturday afternoon announcement, the Centers for Medicare and Medicaid Services said it will stop collecting and paying out money under the ACA’s “risk adjustment” program, drawing swift protest from the health insurance industry.

Risk adjustment is one of three methods built into the 2010 health-care law to help insulate insurance companies from the ACA requirement that they accept all customers for the first time — healthy and sick — without charging more to those who need substantial care.

As the article goes on to explain, two of the three methods were temporary;  risk adjustment, however, was to be permanent. Federal health officials are supposed to annually calculate which insurers had relatively low-cost consumers, and which had more expensive customers. Those with the lower-cost customers would make an adjustment payment to those whose customers were more costly.

This idea of pooling risk has had significant practical effects: encouraging insurers to participate in the insurance marketplaces the ACA created for Americans who cannot get affordable health benefits through a job.

In its announcement, CMS said that it is not going to make $10.4 billion in payments that are due to insurers in the fall for expenses incurred by insurers last year.

The announcement that payments due under the law would simply not be made is just the most recent measure taken by the Trump administration to demolish a law the GOP was unable to repeal legislatively. (It’s a tactic Trump is undoubtedly comfortable with–throughout his “successful” development career, he routinely stiffed architects, engineers and contractors. Wheelers and dealers who are willing to ignore the terms of contracts to which they are party are unlikely to have qualms about ignoring the obligations imposed by laws to which they are subject. But I digress.)

The administration has taken a number of steps to dismantle the ACA through executive powers.

Last year, health officials halved the length of the annual sign-up period for Americans to buy ACA health plans and also slashed by 90 percent the federal funds for advertising and other outreach efforts to urge people to enroll. Last October, the president ended another important subsidy to insurers: cost-sharing reduction payments, which cushioned them from the law’s requirement to provide discounts on deductibles and other out-of-pocket costs to low-income customers.

This year, the Department of Labor and HHS have worked to make it easier for people and small companies to buy two types of insurance policies that sidestep benefits required under the ACA and some of the law’s consumer protections.

There have been a couple of lawsuits in the lower courts over past calculations of these payments, with inconsistent results, and the administration blamed the withholding of funds on one of those decisions–a transparently trumped-up excuse. (Pun intended.)

“Risk adjustment is a mandatory program under federal law,” said Scott Serota, president of the Blue Cross Blue Shield Association. “Without a quick resolution . . . this action will significantly increase 2019 premiums for millions of individuals and small business owners. . . . It will undermine Americans’ access to affordable coverage, particularly for those who need medical care the most.”

Matt Eyles, president of America’s Health Insurance Plans, noted in a statement that the timing of this latest move could be particularly disruptive, because this is the season during which insurers around the country decide whether to take part in ACA marketplaces for 2019 and, if so, what rates to charge. “This decision . . . will create more market uncertainty and increase premiums for many health plans,” Eyles said.

Of course it will. That’s the whole intent.

And if thousands of people are bankrupted or die as a result? Too bad. They weren’t Republican donors anyway.

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Tariff Time…

Trump’s Tariffs went into effect last week, and the response from America’s trading  partners has been predictable–with one possible caveat. The targeted nations have responded by imposing their own tariffs, as expected–but they have also focused those retaliatory measures on goods produced in states that supported Trump. It’s an interesting gambit; we’ll see how it plays out.

The Republican Party used to be adamantly opposed to tariffs and trade wars, but the supine and complicit GOP Senators and Representatives currently serving have barely uttered a peep. It isn’t because they don’t know the dangers a trade war poses to the recovery we are currently enjoying–it’s because they must once again choose between the remaining shreds of their integrity and their business constituents, on the one hand, and the rabid Trump supporters who form a majority of the shrinking party’s base on the other.

As usual, Paul Krugman’s analysis of the political calculations involved is direct and on point. Krugman connects two very important dots: the longstanding Faustian bargain between big business and the GOP’s racist foot-soldiers, and the party’s war on expertise and evidence.

The imminent prospect of a trade war, it seems, concentrates the mind. Until very recently, big business and the institutions that represent its interests didn’t seem to be taking President Trump’s protectionist rhetoric very seriously. After all, corporations have invested trillions based on the belief that world markets would remain open, that U.S. industry would retain access to both foreign customers and foreign suppliers.

Trump wouldn’t put all those investments at risk, would he?

Yes, he would — and the belated recognition that his tough talk on trade was serious has spurred a flurry of action. Major corporations and trade associations are sending letters to the administration warning that its policies will cost more jobs than they create. Meanwhile, the U.S. Chamber of Commerce has begun an advertising campaign to convince voters of the benefits of free trade.

As Krugman notes, there is a heaping pile of “just deserts” here; corporate America has played cynical politics for years and is reaping what it sowed.

What do I mean by cynical politics? Partly I mean the tacit alliance between businesses and the wealthy, on one side, and racists on the other, that is the essence of the modern conservative movement.

For a long time business seemed to have this game under control: win elections with racial dog whistles, then turn to an agenda of tax cuts and deregulation. But sooner or later something like Trump was going to happen: a candidate who meant the racism seriously, with the enthusiastic support of the Republican base, and couldn’t be controlled.

The nature of that alliance became abundantly clear to anyone paying attention in 2016. But Krugman’s other important point is still insufficiently appreciated.

When organizations like the Chamber of Commerce or the Heritage Foundation declare that Trump’s tariffs are a bad idea, they are on solid intellectual ground: All, and I mean all, economic experts agree. But they don’t have any credibility, because these same conservative institutions have spent decades making war on expertise.

The most obvious case is climate change, where conservative organizations, very much including the chamber, have long acted as “merchants of doubt,” manufacturing skepticism and blocking action in the face of overwhelming scientific consensus. Not to put too fine a point on it, it’s hard to pivot from “pay no attention to those so-called experts who say the planet is warming” to “protectionism is bad — all the experts agree.”

Similarly, organizations like Heritage have long promoted supply-side economics, a.k.a., voodoo economics — the claim that tax cuts will produce huge growth and pay for themselves — even though no economic experts agree. So they’ve already accepted the principle that it’s O.K. to talk economic nonsense if it’s politically convenient. Now comes Trump with different nonsense, saying “trade wars are good, and easy to win.” How can they convince anyone that his nonsense is bad, while theirs was good.

Krugman ends his analysis by pointing to another looming threat to business (and the rest of us): authoritarianism. As he notes, it isn’t simply world trade that’s at risk, but the rule of law. “And it’s at risk in part because big businesses abandoned all principle in the pursuit of tax cuts.”

Meanwhile, the experts who are scorned by this administration are weighing in on the likely consequences of Trump’s economic ignorance:

There’s no formal definition of what constitutes a trade war, but the escalating exchange of trade barriers between the United States and its trading partners has hit a point where most economists say there will be a negative impact. Companies will scale back on investments, growth will slow, consumers will pay more for some items, and there could be more job losses. The Federal Reserve warned Thursday some companies are already scaling back or postponing plans.

We all need to hang on tight, because when you give the keys of your economic vehicle to a guy who couldn’t pass the drivers’ test, your ride is likely to be something between bumpy and disastrous.

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How Low Can We Go?

You have probably all seen this reported, and in the global scheme of things, it’s just one more (relatively minor) national embarrassment.

But still!

The United States government opposed a U.N. resolution recommending breastfeeding.

A resolution to encourage breast-feeding was expected to be approved quickly and easily by the hundreds of government delegates who gathered this spring in Geneva for the United Nations-affiliated World Health Assembly.

Based on decades of research, the resolution says that mother’s milk is healthiest for children and countries should strive to limit the inaccurate or misleading marketing of breast milk substitutes.

Then the United States delegation, embracing the interests of infant formula manufacturers, upended the deliberations.

American officials sought to water down the resolution by removing language that called on governments to “protect, promote and support breast-feeding” and another passage that called on policymakers to restrict the promotion of food products that many experts say can have deleterious effects on young children.

And it wasn’t just a pro-forma vote. U.S. diplomats “twisted arms” and threatened supporters of the resolution. Ecuador had planned to introduce the measure; according to reports,  American officials warned Ecuador’s representatives that if they refused to drop their sponsorship of the resolution, “Washington would unleash punishing trade measures and withdraw crucial military aid.”

The Ecuadorean government–understandably–caved.

Health advocates scrambled to find another sponsor for the resolution, but at least a dozen countries, most of them poor nations in Africa and Latin America, backed off, citing fears of retaliation, according to officials from Uruguay, Mexico and the United States.

Speaking of threats, some American delegates evidently went so far as to suggest that the United States might cut its contribution to the World Health Organization, which uses  America’s significant contribution to fund a variety of important global medical initiatives.

In the end, the Americans’ efforts were mostly unsuccessful. It was the Russians who ultimately stepped in to introduce the measure — and the Americans did not threaten them.

It wasn’t just breastfeeding. The thuggery was extensive.

The confrontation was the latest example of the Trump administration siding with corporate interests on numerous public health and environmental issues.

In talks to renegotiate the North American Free Trade Agreement, the Americans have been pushing for languagethat would limit the ability of Canada, Mexico and the United States to put warning labels on junk food and sugary beverages, according to a draft of the proposal reviewed by The New York Times.

During the same Geneva meeting where the breast-feeding resolution was debated, the United States succeeded in removing statements supporting soda taxes from a document that advises countries grappling with soaring rates of obesity.

The Americans also sought, unsuccessfully, to thwart a W.H.O. effortaimed at helping poor countries obtain access to lifesaving medicines. Washington, supporting the pharmaceutical industry, has long resisted calls to modify patent laws as a way of increasing drug availability in the developing world, but health advocates say the Trump administration has ratcheted up its opposition to such efforts.

Words fail.

We have an administration that separates desperate families that have come to us to escape violence and (often) certain death. We put their babies in cages. Now we discover that the American government–our government– bullies health professionals who are working to save lives, in order to protect the pocketbooks of its political donors.

Permit me to modify Joseph Welch’s immortal lines : “Until this moment, I think I never really gauged the Trump team’s cruelty or recklessness… Clearly, they have no sense of decency.”

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The ACLU, Chuck E. Cheese and The Trump Administration

I cried reading the New York Times last Sunday.

It was an article titled “Can the ACLU become the NRA of the left?”

I spent six years as Executive Director of Indiana’s ACLU affiliate, and took a great deal of pride in the organization’s nonpolitical bona fides. (As the only Republican Executive Director at the time, I was particularly supportive of that nonpartisanship.) The Times article focused upon the organization’s determined, effective–and very political– opposition to Trump.

If Trump didn’t pose an obvious and existential threat to civil liberties, democracy and the rule of law, I would be distressed.

It was the description of a family separation case that made me cry.

Nearly a year ago, fearing for their lives, Ms. L. and her daughter, S., who was 6 at the time, fled their small village in the Democratic Republic of Congo. A group of nuns gave them money and food and helped them flee the country. For the next several months, they slept outside most nights or sometimes on the floors of empty buildings they had been pointed to along their route north toward the United States. They cleaned themselves as much as possible in public restrooms. They scavenged for discarded food from restaurants. When they finally presented themselves at the crossing in San Diego, Ms. L. saw the American flag and told her daughter they were going to be O.K.: “We have arrived.”

This was on Nov. 1, 2017 — months before the government denied it was separating children from their families, then said it was only families who were caught crossing the border illegally, then announced it was all part of a zero-tolerance policy. Ms. L. entered legally at the port of entry at San Diego. In broken Spanish she had picked up along the way, she told the border agents she was seeking asylum in the United States. The Border Patrol referred her to ICE, and after four days in temporary housing, ICE agents met with her and S. and asked the girl to go with a guard into another room. Once she was gone, they handcuffed Ms. L., who hadn’t committed a crime. She listened to her daughter beyond the door, screaming and pleading with the guards not to take her away. S. was transported immediately to a facility for unaccompanied minors in Chicago. Ms. L. was detained in California with roughly 1,500 other detainees.

Two weeks later, on Nov. 17, an asylum officer conducted what ICE calls a “credible-fear screening” and determined that Ms. L.’s story met the “credibility threshold,” which would normally mean she could enter the country legally and live with her daughter in a shelter while she awaited a full asylum hearing. Instead, months went by, mother and daughter 2,000 miles apart, each in a place where no one else spoke their native Lingala. Ms. L. and S. spoke five or six times by phone, but the conversations were torturous for Ms. L., with S. sobbing on the phone and telling her mother how scared she was and her mother having no idea if she would ever see her again. “Chicago meant nothing to her,” Gelernt told me. “It might as well have been on the moon.”

In late January, Ms. L. appeared before an immigration judge without an attorney present. She hadn’t seen S. for nearly three months and was consumed with worry and despair. After questioning her, the judge ordered Ms. L. to be removed from the United States. Confused by what was being asked of her, she waived her right to contest her removal. When she returned to the detention center and recounted what happened, another detainee asked, “What have you done?” and explained that she was going to be sent to Congo. Ms. L. begged her fellow detainee to write a letter to the judge on her behalf. “Please don’t send me back,” she said. “I will be killed there.”

The Times article has much more detail–and I hope everyone will read all of it. The  ACLU represented the mother.

Here’s the paragraph that made me cry:

The next night, after I left, they were reunited in the shelter. I’ve spoken with Gelernt several times about the moment of their reunion, what he called the most emotional thing he’d experienced in 25 years of doing immigration work. Ms. L. stood near him waiting for her daughter on a worn marble staircase just inside the shelter’s front door. When the door swung open, she crouched and stretched her arms wide. S. stepped through the doorway and saw her, and the most beautiful smile spread over the girl’s face, Gelernt said. She toppled forward, and Ms. L. gathered her in her arms and fell back onto the marble stairs. The look on her face as she held her daughter was almost too emotional to witness. For the next minute they lay there, clinging to each other and rocking from side to side. The only sound in the hall was a low, rhythmic moan, punctuated by S.’s higher-pitched cry.

A federal court gave the administration thirty days to reunite parents with the 2000+ children it holds. The administration wants more time–because they can’t figure out who belongs with whom.

Which brings me to Chuck E. Cheese.

Chuck E. Cheese was after my parenting time, but my son and daughter-in-law assure me that the chain–which evidently makes its money from children’s parties–has a simple security protocol (“Kid check“) that ensures parents will leave with the children they brought.

Chuck E. Cheese can do what the incompetent Trump administration can’t.

It’s a meme for our time.

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