Tag Archives: Trump

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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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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Whose Fake News?

Psychiatrists define “projection” as a defense mechanism employed by people who are having trouble coping with difficult emotions. They project their feelings of inadequacy or remorse over shameful behaviors onto someone else–accusing other people of undesirable or reprehensible actions of which the accuser is actually guilty.

For example, Donald Trump and “fake news.”

I’m not referring to Trump’s constant misstatements and inaccuracies (latest favorite: Trump said Harley-Davidson had lost sales because Americans were reacting negatively to the company’s impending move overseas. The company announced that move two weeks ago. Trump’s cited “evidence” was from 2017.)

He gets his facts wrong so often he could open an “Inaccurate-R-Us” franchise, but frequently, that’s simply because he is jaw-droppingly ignorant. His constant whining about “fake news,” however, is different. When he accuses reporters of manufacturing stories, he’s projecting, but he’s also playing to his base.

A recent example is this July 3d tweet

Just out that the Obama Administration granted citizenship, during the terrible Iran Deal negotiation, to 2,500 Iranians – including to government officials. How big (and bad) is that?”

Trump is absolutely obsessed with Obama (presumably because he can’t bear the fact that a black guy is infinitely smarter and classier than he is) and invents “facts” about him constantly. In response to the tweet, the Washington Post’s fact checker gave the allegation  Four Pinocchios.

As embarrassing as it is to have a President who lies whenever his lips are moving, Trump’s truly despicable use of fake news is in service of his bigotry, especially when it comes to immigration. These are “lies with purpose”–messages intended to keep his base terrified of those lawless and dangerous brown people coming over the southern border.

The view from that southern border is radically different from the stories Trump is peddling.

As a resident of that border recently wrote

The news over the past few weeks might make you think that places such as my hometown — McAllen, Tex., in the Rio Grande Valley — are under siege from waves of undocumented immigrants and asylum seekers, a crisis of lawlessness so extreme that drastic measures are needed. Tearing children from their parents, or, when that proves too unpopular, corralling families in tent cities. Then there’s the $25 billion wall that’s needed to safeguard the United States from the threat of being overrun.

The view from down here is different. In a 2018 rating of the 100 most dangerous cities in the United States based on FBI data, no border cities — not San Diego, not Texas cities such as Brownsville, Laredo or El Paso — appeared even in the top 60. McAllen’s crime rate was lower than Houston’s or Dallas’s, according to Texas Monthly in 2015. The Cato Institute’s research consistently shows that immigrants, both legal and undocumented, are markedly less likely to commit crimes than native-born Americans.

And as Kevin Sullivan recently wrote, in a story in the Washington Post, the town of McAllen is profoundly uncomfortable with Trump’s policy, and irate about the rhetoric he uses to defend it.

The policy is seen as unwanted and unfair in this border city of 142,000 whose population is 90 percent Hispanic and so fully bilingual that roadside anti-littering signs say “No dumping basura” (trash).

Far from being the criminal hell-hole described by Trump, McAllen is a thriving community, with an economy that is heavily dependent upon trade with its Mexican neighbors. Businesses welcome the customers who come over the border, and the town raises more sales tax per capita than almost any other Texas city — about $60 million last year, greater than its property tax revenue. Crime in the city is at a 33-year low.

There is a “crisis” at the border, but it is a humanitarian crisis entirely of Trump’s making.

Facts, evidence, accuracy, fairness–none of those things matter to this profoundly unstable and insecure man, so he evidently assumes that they don’t mean anything to anyone else, either. He projects his own dishonesty on others; he may even believe that everyone is as  pathetically self-aggrandizing as he is. He clearly doesn’t realize how obvious his lies and inadequacies are to everyone outside the small, devoted base that desperately wants to see itself as superior to black and brown people.

He would be an object of pity if he weren’t in a position to do so much damage.

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Cherry-Picking And The Rule Of Law

If we assume that humanity will survive into the future–and that there will indeed be future historians attempting to understand the decisions and assorted insanities of the particular era in which we find ourselves–they may well dub ours the “Age of Cherry-picking.”

Think about it: we increasingly choose to rely on information that confirms our preferred beliefs. We routinely dismiss evidence that is inconsistent with our prejudices, ignore realities that are inconvenient, and resist information that challenges our world-views.

I can just see those future historians trying to figure out why more of us didn’t call out the hypocrisies.

Think, for example, of that go-to bible verse cited most recently by Jeff Sessions–the one that supposedly instructs believers to follow even laws they dislike. That verse, which Sessions used to support the administration’s “zero tolerance” immigration policy, has  also been cited to support slavery and “the Southern way of life.”

Religious groups opposed to the policy found and cited their own biblical selections.

“The Bible teaches that God ‘loves the foreigner residing among you, giving them food and clothing. And you are to love those who are foreigners, for you yourselves were foreigners in Egypt’ (Deuteronomy 10:18-19).”

Since Trump’s election, a casual review of Facebook posts hurling biblical quotes back and forth would suggest that Republican and Democratic Christians own very different versions of the Bible. (Not that the Bible should even enter into a discussion of civil law in a nation that separates Church and State…)

On the issue of immigration, until he was forced by public outrage to moderate the policy, Trump had insisted that his administration had no choice but to separate children from their parents, because it was “a law” and his administration enforces all the laws. 

Speaking of cherry-picking….

As Howard Gleckman recently wrote for Forbes,

Question: What does the Trump Administration’s policy decision to separate immigrant children from their parents at the Mexican border have in common with its policy decision to refuse to enforce IRS curbs on church involvement in political campaigns?

Answer: Nothing.

As Gleckman noted, the administration’s insistence that the law required the separation of children from parents was somewhere between dubious and inaccurate.

But the Administration’s absolute claim that it must enforce laws, even if it disagrees with them, turns out to be somewhat…situational.

Twice in the last three weeks, in formal remarks, Vice President Mike Pence said the Administration would ignore another statute: The Johnson Amendment that bars 501(C)(3) non-profits, including houses of worship, from participating in political campaigns for, or against, a candidate.

Pence could have not been more explicit. Speaking to the Family Research Council on May 25, he said the Johnson Amendment “will no longer be enforced under this administration.” He repeated the vow in a speech to the annual meeting of the Southern Baptist Convention last week.

So let’s summarize the delusional state of “leadership” in our country, where the administration picks and chooses its realities:

  • The administration enforces all the laws except those Mike Pence’s Bible doesn’t agree with. (What First Amendment?)
  • The “scientists” relied upon by administration climate-change deniers are sure that the warnings of the other 97% of scientists are bogus.
  •  Larry Kudlow, the President’s current “economic advisor” plucked from Fox News, says the Republican tax bill is responsible for the (non-existent) decline of the deficit. (The deficit and the debt are actually exploding–but not, evidently, in Kudlow’s alternate reality.)
  • Spitting on our longtime allies and cozying up to our enemies is putting America First.

As Kurt Vonnegut would say, and so it goes…..

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The U.S. Retreat From The World

Happy Fourth of July. Okay–not so much.

I guess Fox News doesn’t mention this sort of thing–or perhaps all those “Make America Great” fans don’t consider leadership of the free world necessary to greatness–but for the rest of us, as this year’s Independence Day dawns, there’s a lot less American greatness to celebrate.

Anyone who actually follows the news is aware, of course, that Trump has embraced authoritarian bullies while consistently insulting our allies and denigrating long-standing alliances. If he and his MAGA troops actually believe that these boorish and destructive behaviors are solidifying America’s stature, or earning the respect of other countries, they are delusional.

Here, for example, is a recent news item we might ponder on this 4th of July:

In a rare snub of the Trump Administration, the United Nations failed to approve an American pick to head an international migration group.

After a third round of voting on Friday, Trump nominee Ken Isaacs was removed from the list of potential candidates to lead the International Organization for Migration.

This is only the second time that an American won’t lead the IOM since the organization’s founding in 1951. Portuguese politician and European Union diplomat Antonio Vitorino earned the necessary two-thirds majority and will become the IOM’s next leader.

Apparently, the United Nations is less enamored of the blatant bigotry displayed by Trump’s nominees–and for that matter, the entire Trump administration–than the enthusiastic and terrifying crowds at his rallies.

Isaacs, the vice president of the evangelical Christian non-profit Samaritan’s Purse, had faced criticism for derogatory statements about Islam that were discovered on his Twitter page. He wrote“#Islam is not peaceful,” “Muslims fast, they also blast,” and “All #Islamic #terrorists literally follow #Islam.”

As a prior Ambassador to the U.N. has noted, the position of IOM Director has been seen as an ‘American seat’ and Trump was unable to place an American in it. So much for all that bluster about “strength.”

Then there’s this:

The U.S. ambassador to Estonia — a NATO ally bordering Russia — abruptly resigned Friday, telling friends that he cannot abide President Trump’s apparent hostility toward institutions that have stabilized Europe since the end of the Cold War.

James D. Melville Jr.’s resignation comes at a crucial moment for independent countries along Russia’s western border — amid the possibility of military conflicts and as Trump suggests he is rethinking the United States’ traditional support for its allies in Moscow’s shadow.

“The honorable course is to resign,” Melville wrote on Facebook. “Having served under six presidents and 11 secretaries of state, I never really thought it would reach that point for me.”

He added: “For the President to say the [European Union] was ‘set up to take advantage of the United States, to attack our piggy bank,’or that ‘NATO is as bad as NAFTA’ is not only factually wrong, but proves to me that it’s time to go.”

When America’s longtime allies turn elsewhere for leadership, when principled and knowledgable public servants feel they can no longer serve their country in good conscience, when a mentally unstable and profoundly ignorant President retains the support of a significant minority of our fellow citizens by appealing to their racism and resentments–faith in the eventual victory of the Resistance is the only thing we can celebrate on this Independence Day.

We have to believe that victory will come in time to divert inescapable disasters.

Happy July 4th.

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