Monday, March 20, 2017

Hearings To Appoint A Supreme Court Justice Must Be Postponed While There Is A Cancer On The Presidency

FBI Director James Comey, testifying before the House Intelligence Committee, acknowledged the existence of what the Washington Post described as "a counterintelligence investigation into the Russian government’s efforts to interfere in the 2016 election," that "extends to the nature of any links between Trump campaign associates and the Russian government."  Comey stated, according to the Post, that the investigation "is also exploring whether there was any coordination between the campaign and the Kremlin, and 'whether any crimes were committed.'” 

There are plenty of reasons why the confirmation hearings for Supreme Court nominee Neil Gorsuch should be blocked.  But rising to the top of the list is the fact that the very legitimacy of the president who nominated him is currently being investigated.

At the end of January 1973, a month into Richard Nixon's second term in office, two officials of his re-election committee (CREEP) were found guilty of conspiracy, burglary and bugging the Democratic Party’s headquarters at the Watergate office complex.  Others had already pleaded guilty.  A week later, in early February, the Senate established a Select Committee to investigate what had become a full-blown scandal. Nixon's top aides, H.R. Haldeman and John Ehrlichman resigned in April, and the Senate's televised hearings began in May.  The rest is history. 

There would not be a Supreme Court vacancy during Nixon's truncated second term and so the issue of confirming a Supreme Court justice during this constitutional crisis never came up.  But imagine if it had.  Do you think there is even the remotest possibility that the Senate would have simply gone ahead and held confirmation hearings as if there weren't "a cancer on the presidency," as Nixon's former counsel John Dean put it?

Here we are just a couple of months into Tweetledrumpf's™ term, and with each passing day the malignancy that plagues his presidency continues to metastasize. The list of his campaign officials that had contact with Russia while Russia was actively interfering with the election continues to grow, as does the administration's attempts to dissemble and distract.

We already have had one senior official -- the National Security Advisor -- resign, and another -- the Attorney General -- recuse himself (and should resign) for lying about their communications with Moscow.  The facts continue to pile up that suggest Trump's campaign actively colluded with Russia or at least gave its blessing.  Either way, this is a political scandal that, as Dan Rather argued last month, may ultimately rival Watergate:
Watergate is the biggest political scandal of my lifetime, until maybe now. It was the closest we came to a debilitating constitutional crisis, until maybe now.  On a 10 scale of armageddon for our form of government, I would put Watergate at a 9.  This Russia scandal is currently somewhere around a 5 or 6, in my opinion, but it is cascading in intensity seemingly by the hour. And we may look back and see, in the end, that it is at least as big as Watergate. It may become the measure by which all future scandals are judged. It has all the necessary ingredients, and that is chilling.
Indeed, Rep. Jackie Speier, a Democratic member of the Intelligence Committee, stated today:  "This is as big if not bigger than Watergate”-- the committee has “circumstantial evidence of an entire web that Putin put in place ensnaring many of the people who now have very respected positions within the U.S. cabinet.”

And so it is more imperative than ever that the hearings be postponed and that Democrats use every  procedural weapon in their arsenal to fight, delay, block, obstruct and oppose Trump's nominee to replace the late Justice Scalia on the Supreme Court.

They must do this not only because Republicans, by refusing to hold hearings and vote on President Obama's mainstream-to-a-fault nomination of Merrick Garland, stole a Supreme Court vacancy to which they are not entitled -- although ensuring that Republicans are not rewarded for their unprecedented obstruction would also be compelling reason enough.  (See Republicans Can Go Bork Themselves)

They must do this not only because Trump's nominee, Neil Gorsuch, according to The New York Times and various legal analysts, is similar but actually to the right of Justice Scalia in terms of judicial philosophy, putting him well outside the mainstream -- although ensuring the Supreme Court doesn't cement another right wing majority for a generation or two would be compelling reason enough.  (See Filibuster or Bust)

They also must do this because, as Dahlia Lithwick and Sonja West put it, "if the Trump victory were even somewhat abetted by shady ties to the Russians, everything he does as president is of questionable legitimacy."  And the process for appointing a Supreme Court justice who has the potential to change the balance of the Court -- and impact fundamental rights and remedies -- for decades should not be undertaken in the midst of what is quickly becoming a constitutional crisis.  Indeed, as Lithwick/West continue, "once a Supreme Court appointment is done, it cannot be undone. And the damage won’t stop with Trump’s judicial nominee: Having one justice serve under a cloud of doubt also threatens to harm the entire court."  And so, "until the presidency is no longer under a cloud, there can be no hearings, and there can be no votes."

Friday, March 17, 2017

Trump, Like Reagan, Hopes To Slam The Courthouse Door In Poor People's Faces

"We promote what Thomas Jefferson described as "the most sacred of the duties of government," which is "to provide equal and impartial justice to all its citizens." And we do it at a cost that amounts to less than one one-hundredth of 1 percent of the federal budget." -- John Levi, Chairman of the Board of LSC
My first job as a lawyer, over 30 years ago, was in a legal aid office.  I'm extremely proud of the important work we did on miniscule salaries and limited resources.  Our clients were people of limited financial means who sought help navigating the legal system against well-heeled landlords, unyielding government bureaucrats and abusive spouses.  We prevented many of them from being evicted or from living in sub-standard housing, helped them obtain government benefits they had been unfairly denied, and protected them from dangerous domestic situations through restraining orders. 

In those days, the Reagan Administration was aggressively seeking to eliminate the Legal Services Corporation altogether.  While these efforts failed, Reagan did succeed in slashing funds, resulting in the layoffs of 1800 lawyers, and placing on LSC's board of directors members who were ideologically opposed to federally subsidized legal services for the poor. 

Legal services came under assault again during the Clinton Administration, when the Republicans in Congress sought to cut funds and limit the cases LSC-funded legal aid offices could take.  One would think, given that Hillary Clinton had been a former chair of the LSC board, that defending legal aid would be somewhat of a priority.   But, as part of comprehensive welfare reform, Clinton signed off on restrictions to legal aid lawyers, which included prohibiting LSC-funded agencies from taking part in class action lawsuits -- in other words, offices that received LSC funds could only assist individuals and not bring or join cases that might impact underlying unfair policies and could have benefitted groups of low income people.

And, with every administration since, legal services funding has been subject to budget cuts that reduce the ability of legal aid offices to serve the low-income families who need assistance.  Last year's budget was merely $385 million  a year.  Its request for 2017 is $502 million.  But as the President of the American Bar Association (ABA) points out, "more than 30 cost-benefit studies all show that legal aid delivers far more in benefits than it costs. If veterans become homeless, or disaster victims cannot rebuild, their costs to society are significantly more."

But now comes the Trump Administration that, like Reagan's, proposes to eliminate the program altogether.

The ABA issued a statement condemning the proposal that would slam the courthouse door "in the faces of millions of Americans, denying them equal access to justice."  It noted some of LSC's worthy services include "securing housing for veterans, protecting seniors from scams, delivering legal services to rural areas, protecting victims of domestic abuse and helping disaster survivors."  It noted that "their offices are in every congressional district and they help almost 1.9 million people annually."

As Don Saunders, vice-president of civil legal services at the National Legal Aid and Defender Association states, “LSC forms the backbone of the civil justice system in the United States that serves low- and moderate-income people” and that “without the federal support . . . you will see veterans and victims of domestic violence, victims of natural disasters, seniors – a growing population with tremendous legal needs. You will see greatly reduced resources available to make critical legal needs across the United States.”

Yet one more thing to reach out to your Congresspersons about.  For lawyers, here's a link to the ABA's website that lets you fill out a form and send a card to Congress: www.DefendLegalAid.org

Thursday, March 16, 2017

You Can Fool 40% Of The People All Of The Time

"The reality is that if Congress were to accept these numbers — which it can’t possibly do — America would be made dumber, dirtier, hungrier and sicker. -- Eugene Robinson
What is so striking about the roll out of Trump budget is not that it is designed to provide massive tax cuts for the wealthy and a big boost in military spending.  Or that this is to be paid for by substantial cuts in services that are vital to the well-being of the less privileged and by the gutting of programs that are essential to such things as keeping our water clean and our air less polluted.  None of this should be surprising.  It has been the Republican game plan since at least the Reagan Era. 

What is striking is how, together with the Trump(Don't)Care health plan, it doesn't pretend to be anything but a giveaway to the rich and a devastating blow to low-income Americans, especially the working poor in rural and rust belt America that Trump championed before he was elected.  In addition to the 24 million who may lose their health insurance, Trump envisions cutting or eliminating programs that help heat homes, feed the poor, sick and elderly, assist with job training, education and legal services, and provide affordable housing. 

Some of the cuts seem to be the product of nothing but gratuitous cruelty.  Who can object to Meals on Wheels, for fuck sake. Or the Low Income Heating Assistance Program, which helps pay for energy costs and to repair broken heaters?  How about the Special Supplemental Nutrition Program for Women, Infants and Children?   Or the Senior Community Service Employment Program, which helps find work for low-income folks that are 55 and older?  

Apparently, Trump and his Office of Management and Budget Director Mick Mulvaney object because as Mulvaney told reporters today, "we can't spend money on programs just because they sound good."  He actually said that Meals on Wheels is "not showing any results" and that there is "no evidence" that a program to help kids who don't get fed at home so they do better in school does that. 

Trump conceded, in a shockingly honest colloquy with the vile Tucker Carlson, that one of the "centerpieces" of the health care plan is a tax cut that would "primarily benefit people making over $250,000 a year" while those that voted for him in "middle class and working class counties, would do far less well under this bill than the counties that voted for Hillary, the more affluent counties."

During the campaign, Trump said that he wouldn't lose voters if he stood in the middle of Fifth Avenue and shot somebody.  Tragically, he was probably right.  But that was a campaign where, with his snake oil salesman persona, he could effectively promise anything.  Now that he is president and is supposed to at least pretend to deliver the snake oil, it is remarkable how little he cares about doing so -- or about even appearing to do so. 

Trump must still believe that his supporters -- roughly 40% of Americans -- will remain loyal as long as he blames Obama for their hardships and promises to keep them safe from Muslim terrorists and Mexican job stealers.  The big question is whether he is still right.

Saturday, March 4, 2017

Just Because You're Paranoid . . .

That was quite a tweetstorm last night, even by Trump standards.  He went after the Terminator again, trashing Arnold Schwarzenegger for leaving the Apprentice, claiming he didn't leave voluntarily but was fired for "his bad (pathetic) ratings."   Oh, and he also had a few choice words for Barack Obama -- accusing him of tapping Trump's phones during the "sacred election process."   Ah yes, that sacred election process.  Trump claimed this was something he "just found out" --  purportedly from a Briebart news article -- and that Obama was a "bad (or sick) guy," a nefarious combination of Nixon and McCarthy.  But, don't worry, Trump assured us:  "nothing found" -- even though Trump could not possibly know that.

Given the shady collection of characters with substantial ties to Russia inhabiting Trump Tower, it shouldn't be at all surprising there would be government surveillance, including wire-tapping, in the building.  As for such taps, and whether Trump's own phones were tapped, there is a legal procedure, put in place after Watergate, in which intelligence agencies would have to obtain a warrant from the FISA (Foreign Intelligence Surveillance Court) after demonstrating probable cause that the "target of the surveillance is a foreign power or agent of a foreign power."  

So, either Trump is a paranoid fool who is parroting fake news with an outrageous accusation against a former president (sick)  or he is trying to distract the public from focusing on the increasingly tantalizing scandal surrounding his administration (pathetic) or Trump's connections with Russia were substantial enough to demonstrate probable cause for a FISA warrant (bad).  Or maybe all three. 

Wednesday, March 1, 2017

First They Came For The Umpires . . .


First they came for the umpires (with instant replay), and I did not speak out
Then they came for the slide at home (and then at second), and I did not speak out
Then they came for the intentional walk ...
After the pitcher fires a third strike to retire the batter, with less than two out and no one on base, the catcher reflexively whips the ball to the third baseman, who tosses its to the second baseman, who flips it to the shortstop, who throws it back to the pitcher.  After an out is made at first base, with less than two out and no one on base, the first baseman starts a counterclockwise version.  This is a time-honored exercise known as throwing the ball "around the horn" -- a reference to sailing around South America's Cape Horn.  It is one of those classic baseball rituals that little leaguers have been imitating for generations. 

But it is rather superfluous and eliminating it could shave minutes off every game.  So, look out. 

Until this season, when a manager decided to intentionally walk a batter, he would signal with four fingers.  The catcher would then stand up, extend his glove hand and receive four slowly tossed outside pitches in a row.  The batter would drop his bat and trot to first base.  Another rather quaint ritual -- one that rarely but memorably would go awry when the pitcher threw wildly or the batter reached out and hit the ball. 

No longer.  Starting this year, intentional walks will be issued automatically.  It will save seconds, perhaps a couple of minutes a game.

The geniuses running Major League Baseball are trying to remove its idiosyncratic charms under the guise of speeding its pace.  But eliminating the intentional walk does not measurably impact the pace of the game.  And, besides, there's nothing wrong with the pace of the game (except perhaps too many conferences at the pitching mound and too many pitching changes).

If the powers that be really want to speed things up they could shorten the time between innings, but that would cut into advertising profits.  Or they could also do away with instant replay -- an ill-advised technical innovation designed to bring more precision and less human error but which results in momentum-crushing delays.

Streamlining baseball to accommodate purportedly impatient, distractible millennials will not magically bring more fans to the ballpark. Making the game more robotic by removing the game's traditional quirks is self-defeating.  We need to stop tinkering and have faith that baseball is just fine the way it is.

Monday, February 27, 2017

Put A Lid On The Basket Of Deplorable Supporters

Depending on the poll, there are between 38-42% of the American people who still approve of the vulgar talking yam.  This is roughly the same percentage of Americans who don't believe in evolution, by the way.  These stalwarts are getting a lot of attention in the media -- earnest perspectives about why their views have not changed after a month of madness (it's not because they are ignorant racists, of course) and what it would take to persuade them to become part of the resistance.  But I don't care what they think, why they think it, or whether their feelings are hurt by liberal outrage.  And I especially don't care about what Democrats can do to win them over -- which is nothing.

These are people who voted for Trump despite the fact that he rose to political prominence by promoting the racist birther lie about Obama -- and then lied about it.  Despite the fact that he was caught on videotape bragging about sexually assaulting women -- after which victims of his predatory behavior came forward.  Despite the fact that his campaign was designed to appeal to a white America purportedly under siege by Muslim terrorists, Mexican rapists and African American gangbangers.  Despite the fact that he claimed that climate change is a hoax.  Despite the fact that he refused to divulge his tax returns or disclose the extent and nature of his business empire.   Despite the fact that his business practices were demonstrably fraudulent.  And despite the fact that he was remarkably ignorant and incurious about every aspect of governance.

These are people who continue to support him after he retained an avowed white nationalist and anti-semite as his chief advisor.  After he put forward a grossly unqualified and conflicted collection of cabinet nominees.  After he restocked the swamp with Goldman Sachs alumni and issued orders to gut Wall Street regulations and oversight.  After he refused to divest from his business empire while he and his family exploit his presidency for financial gain.  After he issued an ill-conceived unconstitutional order aimed at banning Muslims from entering the country and then sought to delegitimize the judiciary branch for checking his power.  After evidence mounts about his connections to Russia and his campaign's collusion in skewing the election.  After he decried every negative story as fake news and attacked the media as the enemy of the people while blithely lying several times every day.  After relentless tweets that strongly suggest he is mentally unstable and unfit for the office.  And after he has presided over a month of absolute chaos and craziness.

These are the people we should listen to, empathize with, and try to reach?  I hardly think so.

Last week two esteemed New York Times columnists wrote about what to do about these folks.  Nicholas Kristof wrote that we shouldn't stereotype Trump supporters as misogynist bigots and that by demonizing them we not only become intolerant like Trump but, more importantly, "it’s hard to win over voters whom you’re insulting" 

Fine. We don't need to stereotype or demonize Trump supporters.  And I will readily concede they are not all ignorant racists who long for a white Christian nation (although they have no problem supporting a president who is).  But we don't need to spend any time courting them either.

Charles Blow, on the other hand, has "no patience for liberal talk of reaching out to Trump voters."   He wrote that "there is no more a compromise point with those who accept, promote and defend bigotry, misogyny and xenophobia than there is a designation of 'almost pregnant.'”  Blow concludes that "Trump is a cancer on this country and resistance is the remedy. The Trump phenomenon is devoid of compassion, and we must be closed to compromise."

I'm firmly with Team Blow.

Democrats need to focus on winning the mid-term elections and to do that they need to tap into the anger and the passion of liberals and progressives who are protesting and organizing, who are packing town halls and jamming Congressional phone lines.  The worst thing Democrats can do is to alienate their base and quash the energy of the grassroots by trying to appeal to voters who, at least for now, are simply not reachable.

As Paul Waldman stated in the Washington Post:
If Democrats want to win in 2018, they need to highlight the things that will get their own voters as worked up about Trump as possible: his scary appointees, his retrograde executive actions, his constant lies, his self-dealing and corruption, and the tremendous damage he and Republicans in Congress are preparing to do. In other words, Democrats need to be as partisan as possible, and forget about "reaching out."
Trying to convince Trump supporters (who have not voted for Democrats since before the Reagan Era) that he is a lying, corrupt, ignorant danger to democracy and to the world -- and that the Democrats have their back -- won't be any more successful than trying to convince them about evolution.  So, enough of the heart-warming stories about those non-racist Trump supporters in the heartland of America who just want to be understood.  Let's save our compassion for those who will really need it.

Wednesday, February 22, 2017

Baseball Is The Perfect Game

My heart skips a beat every time I enter a ballpark and see the perfect symmetry of the infield diamond enveloped by the wide swath of green outfield grass.  I love the meandering pace of the game, the sport's connection to its own and this country's history, the contrasting forces of power and precision, the strategy and the statistics, and the fact that the game has room not only for the pure athleticism of Yoenis Cespedis but also for the phenomenon that is 43-year old, 285-pound Bartolo Colon. 

Part of the beauty of the game is how it has remained constant over time.  The basic rules are not much different from 100 years ago, the bases are still 90 feet apart, and the pitcher stands 60 feet, 6 inches from the hitter.  At the same time, each era has had its own unique issues and the game has changed to accommodate (sometimes at a criminally slow pace) social and technological changes -- often for good, sometimes for ill.

Instant replay was first used in Major League games in 2008, exclusively to review home runs.  New fangled ballparks with unusual angles and idiosyncratic seating made it much more difficult to discern with the naked eye when a ball was actually hit out of the park.  But the success of the original rule has led to the inevitable slippery slope -- expanded replay into many more areas of the game.   These rules which seek to eliminate human error are applied by human beings, resulting in ... plenty of human error.  More problematic is that exciting, close plays are immediately challenged, stopping play, upsetting the flow of the game at pivotal moments. 

Umpire Jim Joyce announced his retirement today.  He probably wished that instant replay was available on June 2, 2010, when he badly blew a call at first base, calling the runner safe on what should have been the third and final out of a perfect game pitched by Armando Galarraga.  Instant replay would have spared Joyce his place in infamy and would have elevated Galarraga to a place in history.

Still, I stand by my letter published in the New York Times on June 6, 2010:
It is unfortunate that Armando Galarraga was denied his moment in history because of a blown call.  But that is why it's called a "perfect game."  Such events are so rare because they rely not only on the pitcher's perfection, but also on the perfection from teammates, and yes, from umpires, too.  We should not lose sight of the fact that the imperfections are what make the game so perfect.

Tuesday, February 21, 2017

Resist Trump -- Play Ball!

As the talking orange turd that lurks in the White House seeks to delegitimize truth, justice and the American Way, it is critical that we #resist by protesting, mobilizing and organizing.  We must insist on truth and push relentlessly for justice, but we also can't forget to celebrate the American Way -- by which I mean reveling in those profoundly American institutions that cannot be tainted by that malevolent shit-gibbon who is befouling just about everything else.  For me those sacred institutions include jazzmovies and, of course, baseball. 

And so spring and Spring Training could not come too soon. 

Cue the Ken Burns music and read the next paragraph in a deep baritone voiceover.

Spring training, like spring itself, is a time of renewal and rebirth; a time when even the lowliest team has hope for the season ahead.  Critical trades over the winter have bolstered the team's weaknesses.  Players coming off injury-plagued seasons are returning in the best shape of their careers.  Hitters have corrected the flaws in their swing and pitchers have discovered devastating new pitches. 

It may be hackneyed and trite, but I buy it every year. 

As a Met fan, for most of the last decade or three, after enduring yet another dismal season filled with heartbreaking losses, underachieving performances, devastating injuries, and mind-boggling player moves or non-moves, I would nevertheless approach Spring Training with a na├»ve optimism that would endure at least until Opening Day. 

I would then delude myself through much of a hopeless baseball season that my team could pull it together and make a run for the playoffs down the stretch.  I refused to face reality until sometime in August, when forced to accept the inevitability of a losing season, I would be stuck watching a team play uninspiring baseball for the last month or so, with little to root for other than spoiling another team's playoff run and the individual achievements of favorite players.  With a team going nowhere, much of the luster and lyricism of the game was lost -- at least until the spring, when it all began again.

But the last couple of years have been different. I experienced how beautiful baseball can be when one's team is having a good year, when you get to revel in tension-filled, meaningful games in September, followed by the glorious excitement of the post-season.  In 2015, after seven straight years with a losing record, preceded by two historic collapses, which were themselves preceded by a heartbreaking playoff loss and countless other frustrating seasons, the New York Mets made it to the World Series, transforming what looked to be another dismal year of mediocrity into a joyful one filled with magical, unforgettable moments.  Last year, burdened with high expectations, the Mets came down to earth but they still managed to make it to the Wild Card game. 

The Mets return with pretty much the same team that didn't quite have it last year.  There is reason for skepticism but no room for it in springtime.   And so at least for now, the fragile arms of the hard-throwing corps of incredible young pitchers are healed.  Travis D'Arnaud, a promising catcher who lost his swing and knocked in an anemic 15 runs all year has a new batting stance.  Jay Bruce, the Reds slugger who was leading the league in RBIs when he was traded to the Mets in August only to fall victim to the all-too-common Mets Transition Disease is back (because the Mets couldn't find a trade partner) and ready to rumble.  David Wright, the all-time Met great, who missed most of the last two season to injury and has a chronic spinal condition, is in great shape.  And there's Yoenis Cespedes, literally a game-changer, who is sure to live up to the hype and the big money the Mets notoriously penny-wise owners uncharacteristically coughed up to sign him. 

If the younger players step up and the older players hang on, if the pitchers continue to blow away hitters and the manager doesn't blow a gasket, and if Yo plays like Yo can play, the Mets could have another magical year.

As for the fate of the country?  If we protest, organize and mobilize, and if we continue to protect our precious institutions, as the late, great Joaquin Andujar described both America and baseball "in one word:  you never know."

Friday, February 10, 2017

Lawyer Up

In Shakespeare's Henry VI, when the rogue, Dick the Butcher, says, "The first thing we do, let's kill all the lawyers," what he is suggesting is not that lawyers are corrupt scoundrels that must be done away with.  Rather, Butcher, the henchman for the rebel leader, Jack Cade, was suggesting that Cade could become king if the lawyers -- and the rule of law -- could be swept away.

Trump, like Dick the Butcher, would like to get rid of the lawyers too -- the entire judiciary branch, if he could get away with it.  As the most litigious person ever to become president, Trump is quite familiar with the court of law -- whether suing or threatening to sue those who have had the temerity to cross him or being sued for his shady business operations.  Cases number in the thousands.  (This explains his knee-jerk tweet -- emphasis on the jerk -- after the Ninth Circuit's ruling:  "SEE YOU IN COURT")  But critically, the legal system for Trump is no longer merely a cost of doing business.  It has become an impediment to his quest for unfettered power.

Trump's puerile reaction to a federal judge's issuance of a temporary restraining order (TRO) that stopped what is euphemistically called a "travel ban" -- referring to him as a "so-called judge" and stating that he would be to blame for a terrorist attack -- showed an utter disregard for the independence of the judiciary.  This was borne out in the argument his counsel made before the Ninth Circuit in seeking a stay of the TRO -- that the president has virtually unlimited power when it came to national security decisions.  Thankfully, the court pushed back -- denying the request for a stay and rejecting the terrifying proposition that a president's “national security concerns are unreviewable, even if those actions potentially contravene constitutional rights and protections.”

With the craven Republican majority in Congress abdicating all responsibility to be a check on the executive branch, it is up to the courts -- and the lawyers bringing suits in the courts -- to confine a president who clearly has no boundaries.  And, so far, the lawyers have been heroic -- bringing over 50 lawsuits against Trump for his policies and his business practices.  There have been many challenges related to the travel ban, and others regarding the massive conflicts of interest stemming from Trump's refusal to divest himself from his business empire.  Trump has also been sued for directing the withholding of funds from sanctuary cities.  

As Trump tries to undermine every institution that gets in his way and tear down all dissent to his rule -- whether claiming that any critical news item or negative poll is fake news or trashing judges that don't rule in his favor, the Ninth Circuit's decision, refusing to reinstate the travel ban, was huge.  It was a reminder that Trump can be stopped, that there are judges with integrity who won't be bullied, and that lawyers, so often the butt of jokes -- as far back as Shakespeare -- have an essential role to play.

Friday, February 3, 2017

Democrats Must Not Normalize Trump By Opposing His Policies Only On Their Merits

Abby Something
As I argued here, the Democrats need to oppose everything Trump does in order to undermine his presidency.  Every political victory he claims bolsters his legitimacy and increases his power.  But in challenging his nominations, orders, directives and policies it is critical not only to attack them on their merits but to frame them in the context of three things:  (1) his conflicts of interest stemming from his un-divested business empire and his failure to release his federal tax returns; (2) his affinity for white supremacists including, but not limited to, his bff Steve Bannon; and (3) his relationship with his other bff, Vladimir Putin, and other Russian officials and oligarchs. 

For example, the fact that Trump will seek to roll back the protections of Dodd-Frank should certainly be challenged as an abdication of his campaign promise to protect the public against Wall Street -- and an outrageous gift to the financial industry.  But it must also be stressed that Trump is helping companies with which he has -- or may have -- a financial interest.  Democrats should be demanding disclosure of Trump's ties to every bank and investment firm that stands to benefit from Trump's proposed gutting of regulations so that the public can know whether he is acting in the best interest of the country or to line his own pockets.

The Muslim ban, limiting a federal program that counters violent extremism to only "radical Islamic extremism," and the proposal to abolish the Johnson Amendment that prevents tax-exempt religious organizations from campaigning for candidates must be opposed not only as bad policy, contrary to American values and in violation of civil rights and freedom of religion.  This must be seen in the context of Steve Bannon's stated goals that appear to include creating a White Christian Nation.  Democrats should demand that Trump explain whether he agrees with his chief strategist and, if not, why he continues to staff the White House with Bannon allies.

And Trump's belligerent conversations with foreign leaders and his disparagement of NATO and the European Union must be seen not just as foolhardy from the perspective of diplomacy and national security.  They raise serious questions about whether Trump's connections to Russia are influencing his moves on the international front -- questions that need to be raised over and over again.

Liberals and progressives have been indefatigable in taking on Trump these first couple of weeks as we are forced to play political whack-a-mole on a seemingly infinite range of issues.  It is having an impact and our leaders in Congress are definitely listening.  But it is critical that we don't end up in the usual partisan debates over policy -- debates that the media expects and that will serve to normalize the presidency.  We need to push the Democrats and the media to view Trump always through the prism of his financial self-dealing, his sympathy for white supremacy and as a Russian stooge. 

Wednesday, February 1, 2017

Filibuster Or Bust

Well, the Orange Nightmare -- the nation's scourge and reality TV host who has tragically taken his horror show to the White House where he truly has a captive audience -- has chosen the next Supreme Court Justice.  Or maybe Steve Bannon has.  In any event, after some bizarre made-for-TV drama, the winner is . . . . definitely not women or workers or the planet.

Trump nominated 10th Circuit Judge Neil Gorsuch, whose mother -- Reagan's EPA chief -- would have fit right in with Trump's cabinet of deplorables.  The New York Times places Judge Gorsuch on its handy liberal-to-conservative chart to the right of Justice Alito and the late Justice Scalia, but to the left of Justice Thomas. Gorsuch worshipped Scalia, wept when he learned of Scalia's demise, and hews to a similar judicial philosophy, although he wields a less acerbic pen.

Anyone in the mold of Justice Scalia only more conservative can hardly be called mainstream.  Indeed, his right wing bona fides are solid.  He was in the majority in the lower court Hobby Lobby case which held that employers could refuse to provide contraceptive coverage to female workers on religious grounds.  And he took the rare step of calling for reconsideration by the entire 10th Circuit of a decision that restored funding to Planned Parenthood after the Governor cut off funding -- and dissented when the full Court declined. 

And while he wrote a book about assisted suicide and euthanasia which talked about the "intentional taking of human life" that also seems to presage his troubling views on abortion, he was not so troubled by the horribly "botched" execution of Clayton Lockett, which I wrote about here (See Devolving Standards of Decency) -- an execution where witnesses described an "agonizing scene" in which over the course of 43 minutes, Lockett writhed, convulsed and struggled to speak before his heart "essentially exploded."  Gorsuch joined the majority opinion that ruled against Lockett's estate, which had sued the state of Oklahoma.  The opinion characterized the horrific events as merely an "innocent misadventure" or "isolated mishap" that does not constitute cruel and unusual punishment.

Gorsuch recently wrote an opinion criticizing what is called Chevron deference, a principle that courts should defer to federal agencies when it comes to interpreting ambiguous federal regulations.  As Nan Aron, President of Alliance for Justice, explained:  "Not requiring courts to defer to agency expertise when an act of Congress is ambiguous will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law."

But even if Judge Gorsuch were a mainstream pick -- someone, I suppose closer to Justice Kennedy than Justice Scalia, Democrats should still fiercely oppose him, slow down the process as much as possible and then employ the filibuster.  The Republicans stole this seat and Democrats have to keep reminding the public that for almost a year, they stonewalled President Obama's nominee -- Merrick Garland -- who is as mainstream and unobjectionable as they come.  Republicans refused to even meet Garland, much less hold confirmation hearings or vote on his nomination.  They sure as hell should not be afforded any Senatorial courtesy now.  (See Republicans Can Go Bork Themselves)

There is absolutely no logical reason why Democrats should acquiesce to Donald Trump on anything -- to do anything to legitimize his presidency (see Just Say No) -- much less something as critical as a Supreme Court vacancy.   But some Democrats are saying that they shouldn't fight this one since replacing Scalia would not change the balance on the Court -- and that they should save the big confrontation for the next one.  With all due respect, this is fucking nuts. 

First, filling the seat with a conservative does change the balance of the court if you consider that it was a seat that should have been filled by Judge Garland.  Second, no one knows whether this will be Trump's only pick -- either because he implodes or because no other justice leaves the bench before the end of his term.  Third, the idea that if Democrats cave this time they will be in a better position next time is the kind of Democratic logic that makes me want to guzzle antifreeze.  Have they learned nothing from the last eight years?  (And, who knows?  Maybe if the Democrats stop treating the Trump presidency as normal and become a true opposition party they will win back the Senate in two years.)

And, finally, the notion that we need to keep the filibuster in place for next time is beyond idiotic.  What difference does it make if the Republicans are forced to do away with the filibuster this time to confirm Gorsuch or the next time to confirm a subsequent nominee?  The key is that Democrats need to fight for the seat that is rightfully theirs even if ultimately the Republicans will prevail.

Oregon Senator Jeff Merkley sets the exact right tone:
The most fundamental thing that must be understood about tonight’s announcement is that this is a stolen seat. This is the first time in American history that one party has blockaded a nominee for almost a year in order to deliver a seat to a President of their own party. If this tactic is rewarded rather than resisted, it will set a dangerous new precedent in American governance.
This strategy of packing the court, if successful, could threaten fundamental rights in America, including workers’ right to organize, women’s reproductive rights, and the rights of ordinary citizens to have their voices heard in elections rather than being drowned out by the corrupting influence of dark money from the richest Americans.
If President Trump were serious about healing the divisions in America and undoing the damage wrought by Senate Republicans last year, he could have named Merrick Garland to fill this seat. Garland is a centrist jurist who is respected on both sides of the aisle. Instead, he doubled down on division by picking an ideological and extreme nominee to satisfy the far right.
This is a stolen seat being filled by an illegitimate and extreme nominee, and I will do everything in my power to stand up against this assault on the Court.
More of this, please.

Tuesday, January 31, 2017

The Democrats Must Become The Party Of No

Democrats need to delay, oppose and obstruct everything that Trump does.  Everything. 

Democrats need to oppose everything not because the Republicans did it.  Not because the Republicans repeatedly broke with all conventional norms in blocking much of Obama's agenda and thwarting his administrative and judicial appointments at an unprecedented rate.  Not because the Republicans stole a Supreme Court seat.  And not because the Republicans reaped enormous political gain from their obstruction.  (Although these are pretty good reasons)

Democrats need to oppose everything because everything Trump does is connected. One can't separate Trump's massive business empire and financial entanglements of which we know so little from his policy proposals.  One can't separate the machinations of his anti-Semitic, racist chief strategist from his directives and executive orders. One can't separate his trampling on traditional norms and constitutional principles from his appointments and nominations.  One can't separate his rejection of objective facts, dismissal of science and incessant lying from his stated goals.  Or, one can't separate Jeff Sessions from Steve Bannon from the unconstitutional Muslim ban that does not include countries in which Trump has business interests and that will undermine, not enhance, national security.   

Democrats need to oppose everything because Trump is a petulant demagogue who feasts on "winning," and whose claim to legitimacy will be strengthened with every political victory he attains.  Trump sees everything as a zero sum game and, at least with regard to his political power, he is right.  Democrats gain nothing by attempting to find areas of compromise.  When Trump wins, we lose. When we win, he loses -- and then loses his shit.  We can't let him win.  At anything.

Democrats need to oppose everything because Republicans need to own Trump, his hateful agenda and his madness.  They need to own his unqualified, corrupt cabinet appointees who seek to undermine the agencies for which they were appointed.  They need to own his abhorrent policies, his erratic and legally dubious actions, his racism and xenophobia, his mendacity, his corruption and conflicts of interest, and even his petty tweets. 

Democrats need to oppose everything.  And they should use whatever tools they have to slow down the things they can't stop.

This shouldn't be up for debate.  We shouldn't have to spend our time pressuring Democratic leaders to vote against all of Trump's cabinet nominees, to obstruct Trump's nomination for the Supreme Court, to oppose his policy proposals.  We shouldn't have to keep explaining over and over that this is not normal, that this is not politics as usual, that Trump is a clear and present danger to our democracy. 

But, unfortunately, we do.  Unfortunately, we can't take the resistance of our Democratic Senators and Representatives for granted. And, so far, we haven't. The massive grassroots mobilization of liberals and progressives at the Women's March, at the more spontaneous iteration opposing the Muslim ban over the weekend, and the phone calls, emails and demonstrations at lawmakers' offices are having an impact. We can't let up. We need to keep showing Democrats that we are enraged and engaged, and that if they don't oppose everything, we will oppose them too.

Saturday, January 28, 2017

America First In Hypocrisy And Hate

Of all the egregious acts that Trump committed this past week -- and there are too many to recount here -- nothing was more egregious, more despicable, more shameful than signing a racist-inspired (and probably authored) executive order banning Muslims from entering the country.

The order bans immigrants and nonimmigrants from at least seven majority-Muslim countries from entering the United States for at least 90 days.  Those countries -- Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen -- are countries from which there have been absolutely ZERO fatal terror attacks in the United States. The order also bans all refugees from entering the U.S. for four months and those fleeing the brutal war in Syria indefinitely.  It also gives preference to Christians who claim they are being persecuted.

This perfectly encapsulates everything that Trump stands for.  It is xenophobic and anti-Islam, favoring Christianity over other religions and unashamedly promoting white nationalism.  It is inhumane and unnecessarily cruel, tearing apart families, blithely ignoring the suffering of tens of thousands of innocent people, and discarding those, such as Iraqi interpreters, who played an invaluable in supporting our military.  It exploits fear and ignorance without any basis in fact, discounting the "extreme vetting" process for refugees that is already in place and falsely citing a terrorist threat from a class of immigrants that is virtually non-existent.  It has a strong whiff of corruption and conflict of interest by not including Muslim-majority countries from which Trump has a business interest.  It is incompetently drafted and legally dubious, reportedly not having been reviewed by the Justice Department's Office of Legal Counsel, the State Department or the Department of Homeland Security. 

Legal challenges have already been filed and temporary emergency stays have been imposed by at least four federal judges.  Indeed, while the president has broad discretion when it comes to national security matters, whether there is a legitimate national security basis for such restrictions is highly questionable at best. In addition, the Immigration and Nationality Act of 1965, enacted to end quota systems that gave preferential treatment to immigrants from European nations, was designed to prevent immigrants from being discriminated against based upon national origin -- which is precisely what this order does.  And then there's a little thing called the establishment clause of the Constitution which prohibits favoring one religion over others.

This is the latest and most appalling action Trump has taken in his first week.  And, as with the others, we must contact our representatives in Congress -- we need to flood them with calls and emails to support those who are standing up to this unconscionable action and shame those who have remained silent -- a handful of Democrats and virtually all  the Republicans -- as moral cowards who will forever be tainted by not standing up to ignorance and mean-spirited bigotry.  We need to continue protesting.  And we need to donate generously to the heroic agencies that are and will continue to be on the front lines, including the National Immigration Law Center,  Muslim Advocates, the Immigrant Legal Resource Center, the Arab American Institute, and, of course, the ACLU.

A lot of folks have been saying that this is not what our country is about.  But, frankly, a country that wiped out an indigenous population, was built on slavery with a long, troubled history of institutional racism, that put an entire population of people in internment camps, can hardly claim the moral high ground.  That's why we have to rigorously insist on maintaining the rule of law.  That's why we need to remain vigilant and use our collective outrage to demand that our representatives in Congress stand up to demagogues.  That's why we have to resist. 

And that's why we also need to hear from those Trump supporters who claim not to be ignorant, xenophobic, white supremacists.  The fact of the matter is they supported a man who is.  Trump is not my president, but he is theirs, and now they too have a responsibility to oppose his most shameful actions. 

Friday, January 27, 2017

Week From Hell: Now What?

Has it only been one week?  Besides demonstrating that he is mentally deranged and wholly unfit for office, Trump has issued a dizzying array of tweets, statements, executive orders and policy positions that threaten to undermine the health of the planet, our economic and national security, the foundations of our democracy, and the safety and welfare of our most vulnerable populations. 

Trump has chosen insufficiently vetted, indubitably conflicted and corrupt cabinet nominees who are either wholly unqualified for the positions they were nominated for or whose views are anathema to their respective agencies, or both.  And he has already taken concrete actions that will be devastating to the environment, to women's health and reproductive rights, to press freedom, to immigrants and refugees, to human rights, to health care, to workers' rights, and to our international standing and global stability.

There is so much to digest and resist, and it is hard not to become overwhelmed and to get distracted by the latest shiny object of baffling nonsense -- by the daily outrages of a president who has already gone where no post-World War II western leader has gone before.  Did Trump's top aide and resident white supremacist really just tell the media to "shut up"?  Has Trump really installed an unapologetic white supremacist as his top aide?  Is Trump really going to keep his business empire intact, ignore conflicts of interest and continue to reap enormous profit from his presidency?  Is he going to continue to obsess about the size of his electoral victory and the size of the crowd at his inauguration while denigrating detractors, protestors and journalists who have the audacity to question his popularity?  This is not normal.  It isn't even abnormal.  It's fucking nuts.

We can be -- and should be -- shocked and appalled by the myriad craziness that emanates from Trump and his enablers every day, but we then need to shake off the dread and nausea, and focus on fighting back.  Every day we need to pressure our Congressional representatives to resist.  In particular, we must force the Democrats to stop treating Trump as a normal president who is capable of reason and compromise -- to stop calculating when to oppose Trump and when to keep their powder dry for a potentially more important confrontation.  They need to oppose everything. 

If we learned nothing else from the Obama years, we learned that nothing is to be gained by reason and compromise --  traditional norms are gone.  They fucking stole a Supreme Court seat for fuck sake.  Moreover, when the Trumpocalypse crashes and burns, Republicans must own it.  They must own the crazy and the corrupt all by themselves.  Enough of this bipartisan bullshit. 

The Republicans obstructed Obama and Democrats must now obstruct Trump.  That is how the Republicans were so successful and that is how we can be too --  although we can do it without the racism, the ignorance, the false and misleading facts, and the petty scare tactics. 

To get started, we all need to download, read and share the Indivisible Guide: A Practical Guide for Resisting the Trump Agenda.  The Guide was written by former Congressional staffers who understand what motivates members of Congress ("MoCs") and it cogently explains how best to reach them.  It is a clear and not at all intimidating "step-by-step guide for individuals, groups, and organizations looking to replicate the Tea Party’s success in getting Congress to listen to a small, vocal, dedicated group of constituents."  As the Guide says "it is intended to be equally useful for stiffening Democratic spines and weakening pro-Trump Republican resolve."

There is a lot to do.  But if I may, I first want to take a moment to vent one more time about the election.  While Trump can't let go of the fact that he lost the popular vote by almost three million votes, he is still the fucking president.  We're the ones who should be pissed.  And I still am.  So, one more time:
  • To the Green Party and their candidate Jill Stein and those who voted for her who purportedly care so much about the environment --  fuck you
  • To all those other progressive-minded people who didn't vote at all because Hillary Clinton wasn't pure enough and they were too caught up in their own moral superiority to consider how monumentally catastrophic a Trump presidency would be -- fuck you
  • To the mainstream media that cared more about ratings than reporting; that equated Trump's malfeasance with the misguided but hardly criminal use of a private mail address; and that so lowered the bar for one candidate that its was acceptable for him to lie with impunity and speak in word salad as long as he didn't spontaneously combust -- fuck you
  • To James Comey and his conspirators at the FBI who single-handedly shifted the momentum and re-energized Trump's candidacy at a time it was flailing and who suspiciously used a double standard in determining what non-investigation to disclose and which major one not to -- a very big fuck you
  • To the moral cowards of the Republican Party who failed to stand up to the most dangerously unqualified candidate in modern times and won't stand up to him now --  fuck you
  • To the compliant, compromising Democrats who still don't get how the game is played and remain resistant to the notion of all out opposition and obstruction -- we'll get back to you
  • To the Clinton campaign for failing to figure out with all their fucking data analytics the states they needed to shore up and for not understanding and pushing back on the way the fucking email nonsense was being exploited -- fuck you
  • To the angry white men who could not vote for a woman or accept the fact that America does not belong to them -- fuck you
OK.  Now I'm ready.  Let's get to work.

Thursday, January 26, 2017

It's Medication Time

Every time Trump does a TV interview it's like an infomercial for the 25th Amendment. -- Andy Borowitz
The New York Times argues with itself about whether to call out Trump's blatant falsehoods as lies, but ends up patting itself on the back because it actually, finally used the L-word with regard to his assertion that millions of undocumented immigrants voted in the election.  Not so much NPR, whose reporters and executives were reluctant to label Trump a liar "without the ability to peer into Donald Trump’s head" and out of concern that "branding things with a word like ‘lie,’ you push people away from you" and would be seen as "taking sides."

I agree that peering into Trump's head would be a terrifying prospect, but when he repeatedly makes statements that are completely at odds with verifiably objective facts, he is either lying or he is delusional.  I'm not sure what is more dangerous or disqualifying -- a president that can't stop lying or one that doesn't know the difference between objective facts and alternative ones.

Then there's this gem from Trump's interview on ABC yesterday regarding his much criticized speech at the CIA:
That speech was a home run. That speech, if you look at Fox, OK, I'll mention you -- we see what Fox said. They said it was one of the great speeches. They showed the people applauding and screaming and -- and they were all CIA. There was -- somebody was asking Sean -- "Well, were they Trump people that were put--" we don't have Trump people. They were CIA people.
That location was given to me. Mike Pence went up before me, paid great homage to the wall. I then went up, paid great homage to the wall. I then spoke to the crowd. I got a standing ovation. In fact, they said it was the biggest standing ovation since Peyton Manning had won the Super Bowl and they said it was equal. I got a standing ovation. It lasted for a long period of time. What you do is take -- take out your tape -- you probably ran it live. I know when I do good speeches. I know when I do bad speeches. That speech was a total home run. They loved it. I could've . . .
People loved it. They loved it. They gave me a standing ovation for a long period of time. They never even sat down, most of them, during the speech. There was love in the room. You and other networks covered it very inaccurately. I hate to say this to you and you probably won't put it on but turn on Fox and see how it was covered. And see how people respond to that speech.
That speech was a good speech. And you and a couple of other networks tried to downplay that speech. And it was very, very unfortunate that you did. The people of the CIA loved the speech. If I was going to take a vote in that room, there were, like, 300, 350 people, over 1,000 wanted to be there but they couldn't. They were all CIA people. I would say I would've gotten 350 to nothing in that room. That's what the vote would've been. That speech was a big hit, a big success -- success. And then I came back and I watched you on television and a couple of others.  . . .
And they tried to demean. . . .  and they tried to demean the speech. And I know when things are good or bad. A poll just came out on my inauguration speech which was extraordinary that people loved it. Loved and liked. And it was an extraordinary poll.
Um.  "Right. Well, I have to -- I have to go now, Duane, because I, I'm due back on the planet Earth."

The 25th Amendment outlines a procedure to remove the president when he becomes disabled or incapacitated.  It states: "whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President."

The 25th Amendment was invoked twice during the Bush Administration to temporarily transfer power to the Vice President when Bush underwent a colonoscopy.  It is time to use it permanently with regard to another asshole.