The Gorsuch Nomination

As I have previously written, the most damning argument against Judge Gorsuch’s confirmation has nothing to do with his bona fides, which are impressive. It is the inescapable fact that his elevation to the Supreme Court will be illegitimate–the result of a very dangerous and cynical misuse of political power.

The Republicans’ refusal to afford Merrick Garland a hearing has been widely criticised as blatantly partisan, so I nearly fell off the treadmill yesterday morning during my workout, as I watched an interview with Lindsey Graham. Senator Graham praised Judge Gorsuch and rattled off his qualifications; then he opined–with no hint of irony–that failure to confirm him would be “political” and thus unprincipled.

Unfortunately, those conducting the interview failed to ask the obvious follow-up question: if failure to approve Gorsuch would be “playing politics,” what the hell was failure to even consider Garland?

The hypocrisy is breathtaking.

But what about Judge Gorsuch himself? His willingness–even eagerness–to fill a seat that will inevitably be seen as stolen is understandable; it’s the Supreme Court, after all. He is clearly highly intelligent; his academic background and professional experience are exemplary. His opinions–whether we agree with them or not–are clearly within the broad mainstream of the judiciary.

The two areas that trouble me are his professed version of originalism and his ambiguous  approach to substantive due process.

True “originalism” comes in a number of respectable versions, but over the past couple of decades, the term has become code for “conservative in the mold of Scalia.”  As Judge Posner (himself a conservative jurist) has persuasively noted, Antonin Scalia’s self-described originalism was incoherent and conveniently invoked. I don’t know any legal scholars who do not begin their analyses by looking to the Constitutional text and its historical meaning–and I don’t know any credible legal authority who would agree with a nice man I once debated, who insisted that “free speech” applied only to oral communications, not newspapers, books or other non-spoken transmittals of ideas. (“It says speech.”)

I often introduce the subject of original intent to my classes by asking “So, what did James Madison think about porn on the internet?” Usually, they laugh–and after we acknowledge that James Madison could never have envisioned the Internet, we consider how the Founders’ clear intent to protect the expression and exchange of ideas from government censorship should be applied to “facts on the ground” that those Founders could never have foreseen. In these situations, people of good will–all of whom believe they are honoring the principles the Founders intended to protect–can come to different conclusions about what fidelity to original intent requires.

I’d be very interested to know how Judge Gorsuch defines his originalism.

The Judge’s approach to substantive due process (sometimes called the Constitutional right to privacy) is unclear. Unlike our conversational use of the term, the constitutional right to privacy is shorthand for the individual’s right to self-determination, the doctrine that identifies fundamental individual rights that government cannot infringe without a compelling reason.

As the Court put it in one case, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Substantive due process requires government to respect the right of individuals to hold their own political and religious beliefs, define their own life’s meaning, choose their own life partners and control their own procreation. It defines certain areas of citizens’ lives as “off limits” to government. Our current privacy jurisprudence began when the Court struck down a Connecticut law prohibiting married couples from using contraception; the Court held that such intimate personal decisions were none of the government’s business.

Scalia was a ferocious critic of substantive due process; he had a crabbed, authoritarian view of individual liberty. (In Lawrence v. Texas, his acerbic dissent made clear his belief that government has the authority to outlaw fornication and masturbation.)

Would Judge Gorsuch agree? Will he follow Scalia, or respect existing legal precedents that protect our “intimate” behaviors and relationships from legislative assault?

Assuming Judge Gorsuch is confirmed to the “stolen seat” on the Court, his approach to originalism and substantive due process will be critically important. It would be nice to know his positions on those fundamental issues before the Senate votes.

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Getting From Here to There…and Back

The age of driverless cars and trucks is rapidly approaching. Literally millions of Americans make their livings driving vehicles–trucks, Ubers, taxis, school buses…the list is long, and the consequences of those massive job losses will be severe and unprecedented.

I have no policy prescriptions to offer that might mitigate that job loss disaster. But I do have a response to those transit skeptics who oppose improving city public transportation systems because they claim self-driving cars will make those systems unnecessary.They don’t seem to understand that whether or not someone actually has to drive their car is utterly irrelevant.

What is relevant is that good, reliable public transportation–whether driven by a human or a computer–makes automobile ownership less necessary, and automobiles take a huge chunk out of most household budgets.

A recent article in Resilience, written by an American now living in Ireland, makes an effective case for public transportation.

The healthiest cities in the world have one thing in common; a network of trains, trolleys, trams, subways, buses, and other ways of getting around that don’t depend on everyone having a personal vehicle. Such services save everyone money, use less energy, generate less exhaust to pollute the air and less rubbish to pollute the water and soil. They tip the balance of power on roads, making them light with cars and bustling with humans — walkers, bicyclists and sidewalk vendors. Cities with healthy bus and rail systems feel like neighbourhoods threaded with capillary streets, rather than rows of buildings built alongside highways.

We think of Ireland as having progressed in recent decades, but a hundred years ago trains covered much more of Ireland, with perhaps twice as many lines as there are now. A map of Dublin in the 1920s, likewise, would show a spaghetti-explosion of streetcar lines winding through the narrow streets, pulled by horses at first, and later powered by overhead lines. The recent construction of light rail systems like the Luas were promoted as a next great step forward in transportation, but like most Great Steps Forward, it was merely restoring a tiny piece of what we once had.

The USA used to be the same; for more than a hundred years cities there were networked with a web of streetcars that acted as a circulatory system from one end of a city to the other, as well as buses that filled in the gaps.  Streetcars and buses seem slow to modern eyes only because we compare them to a car on the Autobahn; compare them to a car in the city and they were often faster.

The author notes, with regret, that many cities have begun to regard public transportation as expendable, since it doesn’t make headlines or make money for elites. The people most dependent upon public transit don’t hire lobbyists or make “meaningful” political contributions, and in an era where “tax” is a dirty word and municipalities are starving for income, that lack of political clout makes it easy to defund transit.  When that happens, it not only inconveniences middle-income people who depend upon transit, it also isolates and strands thousands of poor, elderly and vulnerable people.

And it privileges automobiles in ways that we now recognize are both costly and unhealthy.

I know that from experience, for I grew up in the USA, a nation that once had trolleys and streetcars in every major city and most minor ones. According to historian Bradford Snell, 90 percent of all trips in the 1920s were by rail; only 10 percent of Americans needed a car. My grandmother and grandfather met on the St Louis trolley, the one Judy Garland sang an ode to in “Meet Me in St. Louis,” and said most people never needed to drive.

After World War II, however, my country’s cities were transformed; most of the streetcar lines were reduced, sold, cancelled and destroyed, many by a coalition of car, tire, oil and truck companies. Those companies were found guilty of criminal conspiracy in 1951, and fined a pittance, long after the damage was done. Snell believes the corporations were not just trying to monopolise streetcar lines – the actual charge – but consciously conspiring to transform America to a car-dependent society. When they bought out the streetcars they didn’t just tighten belts – they destroyed the infrastructure, ripping the rails out of the streets and paving over their grooves, effectively salting the earth.

Our cities are now built around the fact that there is about one car for every American. Half of all urban space exists for cars, the other half for people. Many newer suburbs don’t have sidewalks, since the expectation is that people will leave their homes mainly to get inside cars. Many new minivans have televisions, a feature that assumes children will spend a hefty chunk of their childhood in the back seat.

Since most train lines were ripped up in the USA, Ireland and most other Western countries, many people must rely on buses. My native USA’s buses are less readily available than most other countries. In many cities I’ve been in, bus lines habitually run late or not at all, and can be expensive for the financially-strapped people most likely to need them. In many places they carry a stigma of poverty, or require people to wait in unsafe neighbourhoods.

Taking public transportation to the job is an amenity that bolsters our sense of being part of a public, unlike commuting (usually alone and at substantial cost) in one’s own car. The author’s final point is worth emphasizing:

Critics of public transportation accuse such systems of not making money. But how much money did the road in front of your house make last year? How much money does our asphalt make, or our electric wires, or our sewage pipes? The questions are ridiculous because these are not moneymaking enterprises; they are basic infrastructure, one of the legitimate reasons for paying taxes or having a government.
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Dirty Harry, Mitch McConnell and the Rule of Law

A former student recently asked for my opinion on Neil Gorsuch, Trump’s nominee for the current Supreme Court vacancy. As I told him, my concerns about Gorsuch pale in comparison to my deep disquiet over the Senate’s refusal to “advise and consent” with respect to President Obama’s nomination of Merrick Garland.

Let me be very clear: Had Mitch McConnell and the GOP conducted hearings on Garland’s nomination, and then voted against confirmation, I would have disagreed with the result. But I wouldn’t have been appalled. I wouldn’t have seen a rejection that emerged from the proper process as a dangerous affront to democratic norms and the rule of law.

McConnell’s refusal to follow the standard procedure contemplated by the Constitution and traditionally adhered to by the Senate was a worrisome and unprecedented assault on governmental legitimacy.

If there is one clear distinction between western constitutional systems and the various dictatorships and theocracies around the globe, it is the formers’ emphasis on the importance of fair procedures that everyone, even government, must follow. As I’ve previously argued, the Bill of Rights might justifiably be characterized as a restatement of your mother’s admonition that how you do something can often be more important than what you choose to do.

“The ends do not justify the means” is a fundamental principle of American law.

Adherence to objective and uniform procedures–the institutional means through which governments achieve their ends—is at the core of the rule of law. For ideologues and theocrats, however, achieving the “right” outcome, managing to win one’s preferred outcomes even if that requires ignoring or circumventing accepted rules, is what is important. It’s the age-old conflict between the rule of law and the “rule of men” (aka the exercise of raw power).

I’ve always hated those “Dirty Harry” type movies, where the purported “good guy” foils the villain by breaking the rules. Those movies elevate the ends over the means–just as Mitch McConnell did when he exercised arbitrary power, in defiance of accepted democratic norms, simply because he could.

In an article about Gorsuch, Dahlia Lithwick recently argued that

the nomination is wholly illegitimate. Gorsuch may or may not be a good judge, but there is no principled reason for him to have a hearing when Merrick Garland did not. This is a problem of power, not legal qualifications.

The Democrats have an unpleasant choice to make. They can refuse to participate in Gorsuch’s hearings, implicitly normalizing this sort of thuggish behavior and doing further damage to American law and institutions, or they can participate in the hearings and demonstrate fidelity to the Constitutional process, recognizing that they are thereby tacitly condoning McConnell’s unconscionable breach and arguably encouraging more and further departures from government legitimacy and the rule of law.

Thanks to Mitch McConnell and his desire to flex his legislative muscle, to display to his base and his political opponents alike his power to “steal” a Supreme Court seat, either option will further erode American democracy and diminish respect for American political institutions.

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Crying Wolf When There’s a Wolf…

Godwin’s law is an Internet “meme” that recognizes a recurring phenomenon of online argumentation: as discussions get lengthier and more passionate,  a debater will eventually compare someone or something to Hitler. Godwin’s Law provides that when such a comparison is made, the guilty person has effectively forfeited the argument.

Godwin’s Law is recognition that name-calling is not productive debate. An accusation that a person or argument is “just like” Hitler is generally unconnected to any actual resemblance between the accused and Nazi Germany. (In other times, the comparison might have been to Satan or the Anti-Christ.) The person doing the name-calling is using Hitler as a stand-in for “evil” (and by falling back on an ad hominem response, demonstrating the poverty of his or her substantive argument).

As a Jew, I have always found thoughtless, almost casual use of the Nazi epithet particularly inappropriate, because it tends to minimize the historical horror that was Nazi Germany. If everyone you disagree with is a Nazi, then actual Nazis are no longer moral aberrations.

Worse, when you have habitually been describing behaviors with which you disagree as Nazi-like, what do you do when something truly Nazi-like emerges? Will the genuine threat be dismissed, as in the story of the boy who cried wolf?

Which brings me to Sebastian Gorka.

Gorka is a top aide to Donald Trump. He was previously the “national-security editor” at Breitbart, working with Steve Bannon. Bannon, of course, is now President Trump’s top strategist. Gorka’s virulently negative  views on Islam are similar to those of Bannon, the President and most of Trump’s other top aides. As an article in the Atlantic noted, however, those views are far outside the mainstream of scholarship on terrorism and Islam, and experts in the field view Gorka’s qualifications as highly questionable, at best.

Now, Slate has reported on a story uncovered by The Forward.

Reporters Lili Bayer and Larry Cohler-Esses found strong evidence that Gorka swore a lifetime oath to a far-right Hungarian group, the Vitézi Rend. The State Department classifies the Vitézi Rend as having been “under the direction of the Nazi Government of Germany” during World War II; as such, members are “presumed to be inadmissible” to America under the Immigration and Nationality Act and must disclose their membership on immigration applications. (The organization was banned in Hungary following World War II but reconstituted after the fall of communism.)

Two leaders of the Vitézi Rend told Forward that Gorka is a full member.

The disclosure of Gorka’s ties has been met with demands for an investigation from at least two Senators, and by dark humor on Facebook. (A photoshopped picture of Angela Merkel has her saying, “In the United States, you call it the ‘alt-right.’ In Germany, we refer to it as “why grandpa lives in Argentina.”)

Given the disquieting parallels between how the Nazis behaved as they were coming to power in Germany and the early actions of the Trump Administration, the Urban Dictionary has issued a notice “suspending” Godwin’s Law.

THIS IS A PUBLIC SERVICE ANNOUNCEMENT:

With the emboldening of the Alt-Reich Fascists all over North America and Europe following the election of their cheeto-dusted Fuhrer, Donald J. Trump, The Godwin’s Law is hereby suspended in solidarity with the Anti-Fascist resisters, until further notice.

This time, there may be a real wolf…..

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This Isn’t Who We Are–Is It?

I don’t want to sound melodramatic, but America is in the midst of an identity crisis, and the identity that emerges will shape the future our children and grandchildren inhabit.

Are we the people who inscribed “Give me your tired, your poor, your huddled masses yearning to breathe free” on the Statue of Liberty? Or are we self-absorbed climbers seeking to ingratiate ourselves with the powerful and privileged while devaluing the poor and ignoring the needs of the disadvantaged?

Are we a country committed to working with other nations to solve problems and resolve disputes, or are we belligerent saber-rattlers throwing our weight around?

Do we respect scientific expertise and intellectual excellence, recognize the social value of the arts and humanities, or do we sneer at the life of the mind and swagger with the hubris and arrogance of people who don’t know what they don’t know?

These are the questions posed by the “budget” the Trump Administration has presented to the U.S. Congress.

Trump’s budget cuts programs like Meals on Wheels that feed housebound seniors. It drastically curtails housing assistance to  poor people.  It takes the axe to  job training and education. It  eliminates the Senior Community Service Employment Program, which helps low-income job seekers age 55 and older find work by pairing them with nonprofit organizations and public agencies. It dramatically reduces funds for scientific and medical research.

The budget ends support for both NPR and PBS–sources of unbiased information for millions of Americans. It eliminates the endowments for the arts and the humanities.It destroys the EPA’s ability to enforce the Clean Water and Clean Air Acts. It guts the State Department and “soft power” in favor of more and more powerful weapons–despite the fact that the Department of Defense has previously insisted that such expanded military capacity is unnecessary and even counter-productive.

As Daily Kos posted, 

Trump’s budget does have its increases. There’s much more money for defense, so Trump can add ships the Navy didn’t ask for, build more planes that the Air Force doesn’t need, and in general make defense contractors moan in ecstasy. There’s also a lot more money for DHS — because deportation forces and walls don’t run cheap.

CNN Money described what America would look like if the budget were to be passed as introduced:

More agents along the border, but a hobbled PBS. A bigger military, but less chance of getting a decent lawyer if you’re poor.

The budget unveiled by the Trump administration on Thursday would remake the United States — vastly expanding national defense but cutting or gutting dozens of programs that touch the lives of Americans every day.

 Charter schools would get more money. But federal money would be eliminated for an agency that improves water and sewer systems in impoverished corners of Appalachia.

The takeoff and landing of your plane would be guided by an air traffic controller working for a nonprofit, not the government. If you live in a small city served by subsidized commercial airline service, you might have to drive farther to get to an airport.

And if you use Amtrak trains to travel across the country, that would become harder, if not impossible. The budget would end support for the company’s long-distance train services.

It isn’t just that the proposed budget is inhumane– a “reverse Robin Hood” exercise that privileges the already privileged. It is also fiscally insane.

People who understand policy–who can connect the dots–know that most of the proposed “cost saving” cuts will end up being much more expensive than the amounts being saved; Meals on Wheels, for example, keeps seniors in their homes longer, and helps them avoid time–overwhelmingly paid for by Medicaid– in hugely more expensive nursing homes. Job training programs reduce welfare rolls. Clean air and water reduce medical outlays. Research breakthroughs save money while improving lives and health.

The budget that encapsulates Donald Trump’s “vision” for America is a prescription for a third-world country, where art, music, science and scholarship are considered effete affectations, where compassion for the less fortunate is a weakness and poverty is seen as evidence of a lack of merit (and certainly not a problem with which the privileged need concern themselves.)

Donald Trump’s “vision” for America is a nightmare.

Lady Liberty weeps.

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