Wednesday, August 16, 2017

Is Charlottesville Trump's Tipping Point?

"Does anyone know I own a house in Charlottesville? It is in Charlottesville. You’ll see....  It is the winery. I mean, I know a lot about Charlottesville. Charlottesville is a great place that’s been very badly hurt over the last couple of days. I own actually one of the largest wineries in the United States. It’s in Charlottesville." -- Trump's Captain Queeg moment at the end of his Aug. 15th press conference.
President Bush's invasion of Iraq and the disastrous decisions that followed (including the use of torture), comprise arguably the greatest foreign policy debacle in our history.  But it wasn't until Bush's inept and tone deaf response to Hurricane Katrina in his second term that the full measure of Bush's inadequacy as a president was roundly acknowledged.  This was the tipping point -- Bush's popularity cratered, the media stopped giving him the benefit of the doubt, and his presidency never recovered. 

We are only seven months into Trump's presidency, God help us, and there has been so much bad craziness -- so many ignorant, corrupt, dishonest, spiteful and hateful acts -- a level of scandalous behavior that would have brought any other president down by now -- that one wonders if we will ever reach a tipping point.   

It wasn't his brazen self-enrichment after failing to divest himself from his business interests while promoting those interests for profit.
It wasn't the stocking of his administration with white nationalists.
It wasn't his Muslim ban. 
It wasn't his withdrawal from the Paris Climate Agreement. 
It wasn't his disclosure of highly confidential information to Russia which burned a critical Israeli source on Isis.
It wasn't his firing of the FBI Director and other attempts to impede the investigation of his administration's collusion with Russia. 
It wasn't his lies about voter fraud to justify a commission aimed at voter suppression. 
It wasn't his pathological inability to tell the truth about anything else.
It wasn't his relentless attacks on democratic institutions, from judges to U.S. intelligence agencies to the press.
It wasn't his reckless threats to North Korea, bringing us close to a nuclear confrontation.

But in the last few days the malevolent orange shit-gibbon appears to have outdone even himself, raising just the possibility of a tipping point.  The satirist Andy Borowitz has aptly stated before, in reference to some of Trump's more heinous actions, that "a group of scholars have concluded that the bar can no longer be lowered."  Well, Trump's refusal to unequivocally denounce as abhorrent Nazis, the KKK and white supremacists who marched in Charlottesville, carrying torches (albeit tiki torches), chanting "blood and soil" and "Jews will not replace us," is a new low.  The bar cannot be lowered any further.  Trump's efforts to shift the blame for the violence that included the killing of a counter-protester and led to the deaths of two Virginia state troopers, his pathetic false moral equivalency between what he called the "alt-right" and the "alt-left," and his embrace of the talking points of racists and anti-Semites is grotesque and unforgivable. 

Trump defended the "very fine people" who were merely protesting the removal of a Robert E. Lee statue, ignoring that it was erected like so many other statues of Confederate leaders during the Jim Crow era, not to honor the Confederacy, but as a symbol of white terror and white supremacy:  "I wonder, is it George Washington next week? And is it Thomas Jefferson the week after? You know, you really do have to ask yourself, where does it stop?”  Where does it stop, indeed.

Will Trump's vomit-inducing "many sides" trope put an end to the mainstream media's reflexive "both sides do it" framing?  Will the leaders of the Republican Party finally say enough is enough, and concede that there are certain fundamental principles at stake that are more important than tax cuts, eliminating affordable health care and right wing judicial appointments.  And will the Democrats finally refuse to govern as a complacent minority party and begin using every technicality and procedural rule in their power to throw sand in the gears and bring Congressional business to a crawl until Trump is removed from office. 

If we haven't reached a tipping point now, I'm not sure we ever will.  Contact your Senators and Representatives.  If they are Republicans demand that they do more than declare that "Nazis are bad" and start taking meaningful steps to remove their leader from office.  If they are Democrats tell them to shut it down until the Republicans do so.  Enough is fucking enough.

Monday, August 14, 2017

Abandoning The Dog Whistle

You start out in 1954 by saying, "Ni***r, ni***r, ni***r." By 1968, you can't say "ni***r" — that hurts you. Backfires. So you say stuff like forced busing, states' rights and all that stuff. You're getting so abstract now [that] you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites. And subconsciously maybe that is part of it. I'm not saying that. But I'm saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me — because obviously sitting around saying, "We want to cut this," is much more abstract than even the busing thing, and a hell of a lot more abstract than "Ni***r, ni***r."  -- Lee Atwater, 1981
Ronald Reagan, the ultimate master of dog whistle politics, launched his first presidential campaign in 1980 in Philadelphia, Mississippi, a place notorious for the 1964 slaying of three civil rights workers, and gave a speech about states' rights:  "I believe in states' rights.... I believe we have distorted the balance of our government today by giving powers that were never intended to be given in the Constitution to that federal establishment."  What Reagan was really signaling by talking about states' rights in that particular venue was that he was squarely on the side of White America.  It presaged his relentless hostility to civil rights and voting rights, and his opposition to entitlements for the poor, particularly, African Americans, who he later famously disparaged with another classic dog whistle -- his unsubstantiated story about a "Cadillac-driving welfare queen."

Ever since, Republican politicians have been expert at using coded language to tap into anxiety of white middle and lower class Americans about losing ground culturally and economically to African Americans and immigrants.  Support for states' rights, calls for curbing food stamps, blaming poverty on a "culture problem," referring to illegal aliens, expressing fear of the spread of Shariah law, and framing opposition to LGBT rights as "religious liberty" all get the message across without sounding overtly racist, bigoted, xenophobic or homophobic.  The references to "Barack Hussein Obama" and relentless questions about Obama's birth certificate, of course, tap into the code as well.

But Donald Trump discarded the dog whistle during his campaign.  He referred to Mexican immigrants as drug dealers and rapists.  He argued for discriminatory treatment of Muslims.  He asserted that the judge presiding over the Trump University fraud cases, born in Indiana but of Mexican heritage, must be biased against him in light of Trump's proposal to build a wall between the U.S. and Mexico. 

And then he won the presidency, anyway -- or, more likely, because of it.  And after that, he brought white nationalists into the White House to be key advisors and installed them in his cabinet.  He sought to impose a travel ban on Muslims.  He sought to redirect a counter-terrorism program to focus solely on "radical Islamic extremism" and no longer target white supremacists.  The civil rights division of his Department of Justice is redirecting resources to investigate university affirmative actions policies. He has anointed Kansas Secretary of State Kris Kobach to lead an investigation of non-existent voter fraud that is aimed at voter suppression in minority communities.  And his Department of Homeland Security is presiding over hyper-aggressive deportation policies. 

None of this was subtle.  And none of it was opposed by the leadership or rank and file of the Republican Party. 

So it is not surprising that white nationalists armed with torches and Nazi flags felt emboldened to rally in Charlottesville.  And it is not surprising that in the wake of this disgraceful display of racism and anti-Semitism, culminating in the tragic death of a counter-protester, that Trump would do no more than call out "many sides" rather than directly and forcefully denounce the one side that was demanding white superiority.

Some of Trump's fellow Republicans criticized him for his tepid response.  Others tried to explain what Trump really meant -- that, of course his comments "included" white supremacists and Nazis and that he would have more directly condemned them but didn't want to dignify them by doing so directly (like dignifying "Radical Islamist Terrorists").    

But the fact is that Republicans are merely embarrassed and discomfited by their leader's inability to effectively use the dog whistle.  So as they have done since before the election, they will continue to distance themselves from his most offensive tweets and insensitive remarks while supporting his policies -- their policies -- that seek to undermine the civil rights of the people the white supremacists and Nazis were rallying against.  It is what they've been doing for decades.

Thursday, August 10, 2017

It's Medication Time (Yet Again)

While the Special Counsel continues to gather evidence that may ultimately doom Trump's presidency, it is becoming disturbingly clear that this may not happen soon enough.  Every day seems to provide more reasons why the malevolent orange shit-gibbon is wholly unfit for office and that his ignorant, erratic behavior is not merely embarrassing, but is threatening the safety and security of the country and the world.

First, there's his frighteningly fragile ego, most recently demonstrated by a report that twice a day -- once in the morning and once in the afternoon -- a special folder is delivered to Trump that contains screenshots of positive cable news chyrons, admiring tweets, and images of him looking strong and powerful.  Not just once a day, twice a day.  See, Donnie, you're a good boy and everyone loves you.  Now turn on Fox & Friends, and everything will be ok.

Then there is his refusal or inability to tell the truth -- a level of dishonesty that is unequaled except perhaps by Jon Lovitz's old SNL character, the pathological liar  --"Yeah, that's the ticket!"  PolitiFact rates just 20 percent of the statements as true.  A New York Times piece this week asserted that "Mr. Trump is trafficking in hyperbole, distortion and fabrication on practically a daily basis."  Carl Bernstein, of Watergate fame, stated that Trump "has lied as no president of the United States in my lifetime has, day in and day out."

Also this week, Trump unwittingly retweeted classified information that U.S. satellites detected North Korea moving anti-ship cruise missiles to a patrol boat that he learned about, not from our intelligence agencies, but from what is evidently his preferred source of information, Fox & Friends.  This is reminiscent of his inadvertent disclosure to his Russian cronies of highly classified information that burned a critical Israeli source on ISIS.  The Leaker-in-Chief cannot be trusted with sensitive information.

And, he certainly can't be trusted with the nuclear codes.  Everyone knows by now about Trump's off-the-cuff remarks that instantly escalated tensions with North Korea, putting us closer to a nuclear confrontation and causing alarm around the globe:  “North Korea best not make any more threats to the United States" or "they will be met with fire and fury like the world has never seen.”  Maybe Trump owns stock in companies that build air raid shelters -- "Trump Bunkers."  That can be the only rational explanation for such a dangerously irresponsible statement that was reportedly made without any considered strategy and without consulting anyone who might have more knowledge or experience with diplomacy and international relations -- which, frankly, would include most people, animals and minerals.  Apparently, he said what he said because he was in a "bellicose mood."   Obviously, his aides should have given him another folder of positive screenshots.

Meanwhile, we're supposed to be comforted by the fact that the caretakers for our supposed democracy are a trio of generals.  It has been reported that Trump's new chief of staff, John Kelly and Secretary of Defense James Mattis, both former Marine Corp generals, have agreed not to leave the country at the same time so at least one of them can babysit the president.  Former Army general H.R. McMaster, the National Security Adviser, is purportedly the other adult in the room.  As disturbing as this is, at least for now, who better to restrain the impulsive president from his worst impulses -- the generals or the white supremacists (i.e., Bannon & Co.) or Trump's own family of grifters.  As Michele Goldberg puts it, "it is entirely possible to be aghast at the growing political influence of America's military and intelligence communities and still see it as preferable to an untrammeled Trump administration."  Still, the situation is not sustainable. 

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."

I've said it before and I'll keep saying it.  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.

Tuesday, August 8, 2017

Gone Fishin'

The imperturbable Robert Mueller has reportedly convened a grand jury in Washington D.C.  This implies that the Special Counsel's probe is ramping up, not winding down, and that Mueller intends to take the investigation of "any links or coordination" between the Russian government and the Trump campaign wherever it happens to lead him.  His mandate is quite broad, including "any matters that arose or may arise directly from the investigation," and informed speculation suggests this will include not just the Trump campaign's possible collusion with Russia and obstruction of justice, but also the financial shenanigans of Trump, his family and his campaign team.

Not surprisingly, this isn't sitting well with the malevolent orange shit-gibbon, who smolders, rages and then tweets about witch hunts and fake news, and who has come to realize that he will soon have to make a choice between complying with requests for his financial records and other potentially damning documents and information or fomenting a constitutional crisis.  Luckily, amazingly, some Senate Republicans are proposing legislation that will make it harder for him to remove Mueller and thwart the investigation.  That's critical, because Trump will not go quietly.

Indeed, he and his enablers are doing all they can to throw shade on the investigation -- doing so, as Greg Sargent argues, in a manner that "undermines our democratic norms and processes" by relentlessly sowing doubt on U.S. intelligence agencies and the news media.  They refuse to accept conclusive facts of Russian interference, insisting that it is a Democratic Party fabrication.  They disingenuously disparage Mueller and his staff, contending that they are biased and plagued by conflicts of interest.   And, rather dangerously, they stoke the fears of their volatile base, as Trump did at a rally over the weekend, insisting that the investigation is an effort to “cheat” them out of "out of the leadership [they] want with a fake story that is demeaning to all of us. And most importantly, demeaning to our country."

But Mueller keeps rolling along, undeterred by the madness and by accusations that the investigation is going too far afield and is nothing more than a fishing expedition. 

Deputy Attorney General Rod J. Rosenstein (Mueller's supervisor) took to the airwaves on Sunday to defend the scope of the Special Counsel's investigation, explaining that it can pursue any crimes that are discovered in the course of the investigation. 

Mueller can thus cast his net widely.  As Jack Shafer colorfully put it:
Once impaneled, any grand jury can sail the seven seas for months or years trawling for big fish, shellfish, pinnipeds, cetaceans—even kelp and algae blooms, should it be so moved. In the event that space travel proves feasible, nothing will stop grand juries from touring the planets on a quest to serve subpoenas. If a portal into the fifth dimension ever makes itself apparent, grand juries will mount expeditions there, too.
Perhaps it is because Trump's poll numbers are cratering.  Or maybe it is because Trump has proven completely inept at helping Republicans pursue their agenda.  Or maybe Republicans believe that Mueller's investigation will lessen their responsibility to undertake a meaningful investigation.  Whatever it is, if Republicans really do protect Mueller from Trump's attempts to undermine him, a lot of fish are going to be caught, and that will include one nasty, bloated orange one.

Friday, August 4, 2017

Happy 75th Birthday To Cleon Jones

“Come on down, baby. Come on down.”
As my wife and daughters well know, if we ever had a boy, he would likely have been named Cleon, for Cleon Jones.

In 1969, the year of the Miracle Mets, Cleon batted .340, good for third place in the National League behind Pete Rose and Roberto Clemente.  No Met hitter had ever joined such illustrious company before.  Cleon led the team that year in on-base percentage, slugging, hits, doubles, stolen bases and walks.  He also was the starting left fielder for the National League in the All Star game, getting two hits and scoring a couple of runs. 

And, when the Orioles' second basemen (and future Met manager) Davey Johnson hit a fly ball to left field with two outs in the ninth inning of Game #5 of the World Series (with the Mets up 3 games to 1) he commanded the ball to "come on down, baby, come on down."  And indeed it did.  An indelible image for Met fans, Cleon caught it, went down on one knee and then ran to embrace center fielder Tommie Agee, his lifelong friend.    

Cleon had a couple of decent years after that, including 1971, when he hit over .300, but he was derailed by injuries.  And although he was hurt for much of 1973, he was an important part of that pennant-winning team. And then came 1975, and the abrupt and ignominious end to his Met career.

First, there was his arrest in in Florida, where he remained for an extended spring training after suffering a knee injury.  Cleon was found asleep and unclothed in his car with a 21-year old woman (not his wife) and charged with indecent exposure.  Although the charges were dropped, Donald Grant, the dastardly Met Chairmen of the Board, insisted on humiliating Cleon, fining him heavily and forcing him to publicly apologize. Then, a couple of months later, Cleon got into a heated dispute with manager Yogi Berra that ultimately led to his release.  And that was that.  He signed on with the White Sox in 1976, but they released him too and he retired from baseball.

Cleon Jones was the best hitter in the Mets' first decade. At the time he left, he was their career leader in many offensive categories.  Those have all been overtaken by subsequent Met heroes, but Cleon will always be cherished for his pivotal role on the first great Mets team. 

Happy 75th Birthday to a true Met icon.

Thursday, August 3, 2017

There Is No Room In The Democratic Party For Candidates Who Don't Respect Women's Reproductive Choices

"We do not have to make compromises on protecting women’s health to win back the House or Senate."  -- Senator Kirsten Gillibrand
What is it about (white, male) Democrats who always believe that the response to losing an election is to abandon the Party's fundamental principles, not to mention a core constituency, in order to court voters who exist in a mythical center.  According to Democratic Congressional Campaign Committee Chairman Ben Ray Luj├ín, the party will not withhold funding from candidates who oppose abortion rights, stating “there is not a litmus test for Democratic candidates.” This echoes Senate Minority Leader Charles Schumer and other party leaders, including Nancy Pelosi, who would welcome anti-abortion candidates to the Democratic Party if they can help win back majorities in Congress. Earlier this year, Bernie Sanders campaigned for an anti-choice candidate for mayor in Nebraska and Democratic National Committee Chair Tom Perez, as part of the Party's "outreach" effort met with a group that described themselves as the "pro-life voice of the Democratic Party." 

This is wrong as a matter of principle and a matter of electoral strategy.

If the Democratic Party stands for anything it must be unwavering support for social justice - or what is disparagingly referred to as "identity politics."   This necessarily includes a focus on racial justice, humane immigration policies, gender equality, LGBT rights and a women's control over their reproductive health.  (I would also add believing in climate change and in the urgent need to combat it, ensuring health care coverage, supporting public education and affordable colleges, protecting the rights of workers, and strengthening the safety net). 

These values should be non-negotiable.  Mostly they are -- although, admittedly some get paid more lip service than meaningful action. But for some reason the first to be explicitly jettisoned is always abortion rights.  And why?  In the hope that there are voters out there who would vote for Democrats but for the fact that they are pro-choice?  Good luck with that.

The misogyny coming out of the White House and the Republican Party's unrelenting efforts to defund Planned Parenthood should be huge red flags that women's rights are under attack. With ever more onerous laws restricting abortion being passed in Texas and other red states while ever more conservative judges who will uphold such laws are being confirmed, women's health choices are in great peril. This is not a theoretical debate.

Yet, in the face of such threats and at a time when the Democratic base is fired up by the existential threat and daily outrages of the Trump presidency, nothing will deflate the resistance more than the sense that the Democratic Party once again doesn't have their back -- that once again women (and people of color) can be taken for granted while Democrats try to win back those Reagan Democrats of yore -- the holy grail of white conservative blue collar workers. 

This seems like a good time to point out that recent polling shows that 7 out of 10 Americans believe in legal access to abortion -- that includes white folks in red states who might be personally opposed to abortion but are not in favor of restricting the rights of others.  The percentage of Democrats who support abortion rights is closer to 8 in 10.

If Democrats want to appeal to the working class of America -- white and non-white -- it won't be by sacrificing women's rights.  Instead they might try to hone a sharper, more progressive economic message than the luke-warm, platitude-filled, poll-tested Better Deal they rolled out recently -- one that actually includes strong support for women's reproductive health.  Such a message would recognize that abortion rights are a critical aspect of economic security, particularly for poor women and women of color.  Indeed, the ability of women to get an education or a decent job is often dependent on ensuring that they get to choose if and when to have children.  

Candidates who don't get that need to cross the aisle.  There is no room in the Democratic Party for candidates who, in opposition to the vast majority of Americans, believe it is their duty to decide what it is best for women and their families.

Monday, July 24, 2017

Danger, Democracy In Danger, Will Robinson

It is hard to look away from the train wreck that comprised Trump's interview with the New York Times last week.  It is hard not to feel both fear and loathing from the now familiar Trump cocktail of one part ignorance, one part delusion and one part abuse of power. When taken together with a chaser that includes Trump tweets boasting of the "complete power to pardon," as well as his aggressive efforts to manufacture a case that Special Counsel Mueller and staff are impaired by conflicts of interest, we are getting pretty close to a constitutional crisis.

First there is the 25th Amendment aspect of it all.  The word salad and #fake history.  Trump's remarkable inability to string coherent sentences together, particularly when it comes to policy.  The dude not only doesn't understand the differences between Obamacare and Trumpcare -- he doesn't understand how health insurance works at all.  Then there are his nonsensical forays into history -- like claiming that Napoleon designed the Paris grid.  He sounds like a school boy bluffing his way through a book report without having done the reading, not the so-called leader of the free world.  As satirist Andy Borowitz has put it before, "every time Trump does [an] interview it's like an infomercial for the 25th Amendment" -- and that's no joke.  

But the truly bone-chilling segment of the Times interview was Trump's rage at the Special Counsel's investigation as it homes in on the Trump family's Russian entanglements -- political and financial.  First there was Trump's unrestrained fury at Attorney General Jeff Sessions for recusing himself from the investigation when Trump assumed that Sessions would act as his personal consigliere.

Worse are Trump's efforts to circumscribe the scope of the Special Counsel's investigation, that come pretty close to obstruction of justice.  In the Times interview, Trump stated that he would consider it a breach of his actual charge if Mueller were looking into the finances of Trump and his family (which is reportedly already happening)  -- strongly implying that he would fire Mueller for such a breach.

It has become trite to use the Watergate phrase, "follow the money," but it has become pretty clear that this is a fruitful path for determining the nature and extent of Trump's relationship with Russia -- and for uncovering likely financial crimes committed by the Trumps.  And Trump well knows that if he is forced to hand over his tax returns and open his books, he's toast.  Hence, his inquiries into preemptive pardons, aggressive PR aimed at the Special Counsel's investigation and implied threats to fire Mueller if he crosses the line.

This is where checks and balances should come in.  It is where the Republicans should be forcefully and unequivocally asserting that Trump must not impede the Special Counsel's investigation -- and that firing Mueller is not an option.  But the only prominent Republican suggesting that Republicans should stand up to Trump is Jeb Bush.  That is not encouraging.  In fact, it is frightening.

Most Americans -- conservatives and liberals -- have an abiding faith in the strength of our government, a core belief that tyranny cannot overcome the barriers to authoritarianism put in place by the Constitution.  Wasn't that the overarching lesson of Watergate?  Well, perhaps the overarching lesson of Watergate was that our Democracy relies on the good faith of government officials.  Would Nixon have resigned under threat of impeachment if Republicans held majorities in Congress?  Back then, probably, because there were ultimately enough Republicans that put the interests of the country over their party.  Now?  That, unfortunately, is the question on which our system of government hangs.

If it wasn't clear before, it is now undeniably apparent that our government depends not just on the rule of law and the Constitution, but on basic ethics and norms.  Senate Republicans showed how by ignoring ethics and norms they could steal a seat on the Supreme Court when they refused to hold confirmation hearings on Obama's nominee to replace Justice Scalia with almost a year left in his presidency.  And the malevolent orange shit-gibbon has taken this to extremes -- declining to release his tax returns, refusing to divest himself of his business entanglements, lashing out at any negative press as "fake news," lying repeatedly and almost daily, and threatening to impede the Special Counsel's investigation.  And if the majority in Congress refuses to stop him, there is nothing to stop him.

Still, we keep hearing that if Trump gets Sessions or some Bork-like apparatchik in the Justice Department to fire Mueller or begins issuing pardons to his family that Republicans will finally rise up to condemn him and that will be the end of the Trump presidency.  Or, if they continue to look the other way in the hope that they can squeeze out a tax cut and another Supreme Court justice before Trump inevitably implodes, then Democrats will easily take back the House in the midterms and crush the Republican Party for a generation.

Maybe.  But with Republican gerrymandering well secured and Trump's Voter Suppression Commission in full swing, taking back the House is far from a sure thing.  And unless there is a miracle wave election, the Senate will remain firmly in Republican hands.  Democrats need a majority in at least one house to control Congressional investigations and get all important subpoena power.  A majority of the House is needed to impeach, and 2/3 of the Senate to remove.  Do the math.  It isn't promising

The notion that our Democracy is dependent on principled Republicans should keep us awake at night.  And while we're awake, we might as well work on getting more Democrats elected so we don't have to.

Thursday, July 20, 2017

When John McCain Was A Maverick

The political tactics of division and slander are not our values. They are corrupting influences on religion and politics, and those who practice them in the name of religion or in the name of the Republican Party or in the name of America shame our faith, our party, and our country.  -- John McCain, 2000 (after the South Carolina primary)
Before George W. Bush, aided and abetted by the U.S. Supreme Court, stole the 2000 Election, he stole the Republican nomination from John McCain with a despicable smear campaign.  McCain had won the New Hampshire primary and was looking formidable until Karl Rove aka Bush's Brain, launched a whispering campaign in South Carolina, amplified by a telephone poll that asked potential voters: "would you be more or less likely to vote for John McCain…if you knew he had fathered an illegitimate black child?"  (McCain adopted daughter was from Bangladesh.)  You know the rest.  Bush won South Carolina and became, until recently, arguably the worst and most destructive president in U.S. history.  McCain's speech after losing South Carolina, a snippet of which is quoted above, proved prescient.

But McCain, despite his reputation, was always a pretty traditional Republican, voting with the Republican Party virtually all of the time, including on key issues such as abortion rights and gun rights.  (87% according to FiveThirtyEight)  In the 1980s, he voted against a national holiday honoring Martin Luther King, Jr.  And his less-than-maverick hawkishness was on full display when he unequivocally supported, indeed agitated for, Bush's invasion of Iraq -- perhaps the most disastrous U.S. foreign policy decision of all time.  It was really only because his fellow Republicans were so extreme and monolithic that his occasional breaks from the orthodoxy stood out, such as when early in the Bush administration he voted against Bush's tax cuts and voted in favor of reducing greenhouse gas emissions and in opposition to oil drilling in the Arctic National Wildlife Refuge.  And, later, he championed immigration reform, until he didn't.

But there were two instances of McCain at his most maverick.  When he used his credibility as a former POW to speak out against the Bush regime's use of torture against enemy combatants in the so-called war on terror, when so many political figures were afraid of saying anything that could be construed as unpatriotic.  And when he teamed with his progressive colleague Russ Feingold in crafting a campaign finance reform bill.  The fact that we again have a president who won't hesitate to use torture and that much of McCain-Feingold lies in tatters after Citizens United should not diminish these acts of political courage.

McCain became far less mavericky when he ran for president again in 2008.  It was infuriating to watch the press fawn all over him and praise his authenticity merely because they were given access to him on his bus, "The Straight Talk Express."  Meanwhile, McCain pandered to the same malevolent right wing forces that that thwarted his earlier efforts, hewing to the far right on virtually every issue.  And his pathetic selection of the utterly unserious and unprepared Sarah Palin to be his running mate, thereby giving her a national platform, greatly contributed to the dumbing down of our political discourse that has led to further buffoonery in the person of Donald J. Trump.  And speaking of Trump, McCain is as much to blame as the rest of his Republican cohorts who have enabled the clear and present danger that occasionally sits in the oval office.  And no, he doesn't get credit for occasionally expressing "concern" about Trump's Russian ties while he continued to vote along party lines.

But as we hope for Senator McCain's recovery, let's remember that there was a time when he broke with his party for the good of the country.  Let's also hope that some of his colleagues will be willing to do the same.

Monday, July 17, 2017

The Arbitrary Execution of Tom Thompson

I knew if I wanted to see Tom one last time I had to leave for the prison soon. It was already late in the afternoon and at 6:00 pm, he would be taken from the visiting area to the death watch cell for his last meal. There he would remain until 25 minutes before midnight when he would be led to the execution chamber next door. There wasn’t anything left for me to do anyway, so I left my San Francisco office and drove over the Golden Gate Bridge to San Quentin State Prison.

The parking lot to the East Gate of the prison is just a few yards from the San Francisco Bay. Even after countless visits the contrast between the sweeping vista of the coastline and the grim reality inside the prison’s peach colored concrete walls is striking. I passed through security and walked slowly down the long path leading to the Main Visiting Room. I was let in through the two sets of heavy doors, and saw Tom, surrounded by family and close friends, presiding over a gathering that could only be described as surreal. Tom had been on death row for fourteen years, and the prison guards who knew him well seemed as traumatized as everyone else. They were overly solicitous, awkward, almost apologetic. Instead of the usual vending machine fare there was a platter of cold cuts for sandwiches and sodas on a long table. Although in a matter of hours he was going to be strapped to a gurney and lethally injected with poison, it was Tom who was trying to keep things light, with the corny jokes and over-the-top impersonations – Steve Martin as the “Wild and Crazy Guy” and Mike Myers as Austin Powers – with which I had become all too familiar.

Behind his silliness, Tom was thoroughly depleted from being the center of a spectacle that surrounded him as the fifth man about to be executed in California since the death penalty was re-instituted in 1977. A physically healthy 43 year old was going through the process of dying, and it was disorienting and  unbearably stressful. He had been enduring emotionally-charged visits from his friends and loved ones, for whom he felt the need to constantly perform. He met often with me and other members of the legal team to approve a list of execution witnesses (he was entitled to five) and to be kept abreast of last minute developments – of which there were few. He had been under 24 hour surveillance from guards for the past five days, making sleep impossible. In accordance with prison rules, he had been stripped of his “non-legal property.” He had no reading or writing material. He was denied his art supplies, which he had used for surprisingly impressive paintings over the years, including a portrait of Billy Idol he had given me a few months earlier.

We had been preparing for this moment for far too long, having gone through a similar process one year earlier when, despite a stay of execution, prison personnel proceeded methodically with its execution protocol until, with six hours to spare, they were finally assured that the Supreme Court would not disturb the stay. There was not much left to say. Tom, although hampered by waist chains, enveloped me as best he could in a big bear hug, and thanked me for all I had done. He told me that I should feel proud about putting up such a good and righteous fight. I replied that it had been an honor to have worked with him. I exchanged tearful goodbyes with his sister and mother. I walked out of the prison and returned to my office where I continued to file court papers with little chance of success and railed to reporters about injustice. All to no avail. Six minutes after midnight on July 14, 1998, Tom Thompson was dead.

*          *          *          *

Tom Thompson had no criminal record or history of violence when he was tried for the murder of Ginger Fleischli in 1984.  He was found guilty of murder and sentenced to death based largely on the false testimony of jailhouse snitches and the failure of his trial lawyer to challenge the bogus evidence of rape invented by the prosecutor.  (The rape special-circumstance provided the basis for the death penalty.)

An explosive scandal involving the Orange County D.A.'s office has only recently shed light on the extent of the unethical behavior routinely engaged in by its prosecutors to secure death sentences.  And Michael Jacobs -- the prosecutor in Tom's case -- has been revealed to be one of the more notorious.  Jacobs was fired in 2001 for insubordination and dishonesty.  The litany of his misconduct over several cases includes presenting false testimony, using unreliable informants, and hiding exculpatory evidence -- all of which he did in Tom's case.  And there was more.  Jacobs used contradictory evidence and arguments in two separate trials to convict first Tom and then Tom's roommate, David Leitch -- the victim's former boyfriend and a man with a violent past -- on inconsistent theories.  The reliability of many other Orange County cases has been called into question since the D.A. scandal broke -- and one murder conviction based on the false testimony of one of the very same snitches who testified against Tom has been reversed.  Of course, this all comes too late for Tom.

There are approximately 750 men and women on death row in California.  Tom Thompson is one of 13 who have been executed since the death penalty was reinstated 40 years ago.  While others sentenced to death around the same time languished on death row (several of whom continue to languish), his case jumped to the head of the class for no discernible reason.  And then a series of safeguards designed to ensure that the death penalty is fairly and reliably imposed -- state and federal appellate review and clemency -- completely and utterly failed. 

All death sentences in California are automatically reviewed by the California Supreme Court.  Tom's appeal was heard in 1988, two years after three liberal justices were recalled by the voters and replaced by an ultra-conservative governor with ultra-conservative justices.  The Court was thereby transformed almost overnight from one that was appropriately open to reversing cases based on meritorious claims to one that essentially rubber-stamped death penalty cases by finding virtually every error alleged in virtually every case to be harmless.  Accordingly, Tom's conviction and sentence were affirmed.

The case then moved to federal court, where in 1995, Tom's death sentence and rape-related charges were reversed based on a finding of ineffective assistance of trial counsel for counsel's inexcusable failure to adequately rebut the snitch testimony and other evidence that purported to establish rape.  The state appealed this decision to the U.S. Court of Appeals for the Ninth Circuit. 

It is not much of an exaggeration to say that the composition of the randomly drawn three-judge panel in the federal appellate courts is the most important factor in determining the life and death of a condemned inmate.  If at least two of the judges on the panel are essentially liberal, the death penalty will likely be reversed; if they are conservative it usually will be upheld. It is simply luck of the draw and, unfortunately, Tom got a very, very bad draw.  Despite what at the time was a majority of liberal judges on the Ninth Circuit, all three judges on Tom’s panel were extremely conservative Reagan appointees.  It was therefore not surprising -- but wholly arbitrary -- when the panel reversed the district court's ruling in 1996.

To mitigate such arbitrariness is another important safeguard -- en banc review, in which an 11-judge Ninth Circuit panel has the option to review a 3-judge panel's ruling.  Court papers were filed requesting rehearing en banc, which can only be granted after one of the active judges who sits on the Ninth Circuit calls for a vote and a majority of those judges then vote in favor of rehearing. Given the number of liberal judges on the Ninth Circuit at that time it would be unusual for there not to at least be one judge calling for a vote in a death penalty case.  However, on March 6, 1997, an order issued stating that the request for en banc review was denied because not one judge asked for a vote to rehear the case. After the U.S. Supreme Court denied review, an execution date was set for August 5, 1997. 

In the months that followed, evidence surfaced that corroborated Tom's long-standing version of events -- that he and the victim had consensual sex on the night of her death.  This included a statement from Tom's roommate, David Leitch, that was never turned over to the defense.  Such evidence completely undermined the prosecutor's rape-murder theory and called into question the credibility and integrity of the prosecutor's entire case.   Unfortunately, presenting this new evidence was severely hampered by a federal law that had just been enacted in the wake of the Oklahoma City bombing.  The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was designed to thwart "frivolous appeals" but it cast far too wide a net and created virtually insurmountable hurdles to presenting new claims in federal court.  Another problem was that the federal judge who had originally granted relief had passed away and the case was assigned to a far more conservative judge who was completely unreceptive to this new evidence and rejected the claim. 

Another purported safeguard is clemency, a process in which the governor is empowered to act when the judicial system breaks down.  No California governor since Ronald Reagan, however, has seen fit to grant clemency in a capital case, and in Tom's case, Governor Pete Wilson proved no exception. Despite powerful and emotional pleas from family and loved ones, the lack of any prior criminal history, testimonials from prison guards about Tom's exemplary conduct at San Quentin, and serious doubts raised regarding the fairness of the trial and the subsequent judicial proceedings, Wilson denied clemency.  He ultimately based his decision on nothing more than a determination that Tom could not prove his innocence ("But at the end of it all, I am absolutely confident that he raped and murdered Ginger Fleischli").

On August 3, 1997, one night before Tom's execution was scheduled to take place, an 11-judge en banc panel of the Ninth Circuit issued a dramatic order.  The court explained that it was taking the highly unusual step of ruling after its earlier denial of review because of “exceptional circumstances” caused by a malfunction in the court’s review process -- a glitch in the court's communication system that resulted in the failure of any judge voting to review the case en banc the first time -- and because “we are convinced that the panel committed fundamental errors of law that would result in a manifest injustice.” The Ninth Circuit then vacated the three-judge panel opinion, and reversed the death sentence, holding that trial counsel's ineffectiveness was prejudicial and that the prosecutor’s use of fundamentally inconsistent theories at Tom and David’s separate trials was fundamentally unfair.

The state sought review in the U.S. Supreme Court, while the prison proceeded with its execution protocol.  With six hours to spare, the Supreme Court refused the state's invitation to summarily reverse the Ninth Circuit and allow the execution to go forward.  But it did agree to hear the state's appeal on December 9, 1997. 

The grand stairway of 53 steps, the massive Corinthian marble columns, the grandeur of the Great Hall, and all the pomp and circumstance attending the Supreme Court are surely designed to give lawyers a sense of awe and wonder as they go through the red-curtained entrance into the courtroom and sit just a few short feet from the nine justices.  One comes completely down to earth, however, as it becomes clear that at least a majority of those justices intend to make sure one’s client is executed. This seemed like a foregone conclusion in Tom’s case. When the high court decides to intervene in a Ninth Circuit case that has reversed a death sentence it is usually not to approve its ruling.  And thus, another safeguard proved ephemeral.  On April 29, 1998, by a bare 5-to-4 majority, the Court reversed the Ninth Circuit and ordered it to reinstate Tom's death sentence. Justice Kennedy (a former Ninth Circuit judge, himself) wrote the majority opinion, finding a “grave abuse of discretion” in the Ninth Circuit’s handling of  the case, and stressed the importance of “finality” of state judgments. Thus, even though Tom was not at fault, the Court rejected Tom’s claims on the technicality that the Ninth Circuit had waited too long to grant en banc review.  The Court never even addressed the validity of Tom’s substantive claims.  A new execution date was set for July 14, 1998.

The last hope was the separate appeal of the federal judge's rejection of the newly discovered evidence of innocence.  The case was heard by the same en banc panel that had granted relief earlier, but the court was no longer receptive.  It seemed chastened by the lashing it had received by the Supreme Court and shackled by the barriers to relief imposed by AEDPA.  At 11:00 p.m., on July 11, 1998, the court denied relief. Tom was executed two nights later.


*          *          *          *

Tom Thompson was represented by a trial lawyer who failed to take the steps required to afford minimally competent representation in a capital case. He was convicted and sentenced to death in a county where a cynical prosecutor could pick and choose among jail inmates who were willing and able to manufacture evidence to support the prosecution’s theory of the case. His death sentence was affirmed by a state court that at the time refused to meaningfully review death penalty cases. Relief in federal court was first denied because he unluckily drew a conservative panel and later because of legal technicalities that had nothing to do with the merits of his claims. Despite obtaining new evidence that suggested he was innocent, Tom was precluded from obtaining a new trial because of insurmountable legal procedures and the paramount importance of closure. 

Almost twenty years later, poor defense lawyers, unsavory prosecutors, disinterested courts and impenetrable procedural hurdles remain all too common elements in capital cases.  They are inherent aspects of an irreparably broken system.  Apart from the barbarity of the death penalty, the absence of meaningful safeguards to ensure that death sentences are not unreliably and arbitrarily imposed and carried out should be deeply disturbing to anyone who cares about fairness and justice. 


Meanwhile, here in California, the state supreme court is weighing whether to implement vote-approved Proposition 66, a cynical initiative that would do absolutely nothing to address the root problems with California's death penalty – arbitrariness and unreliability -- the problems which led to Tom Thompson's execution.  Worse, it would further undermine the already tenuous ability of the legal system to ensure that death sentences are fairly and consistently imposed and that innocent men and women are not executed.  If the challenges to Proposition 66 are rejected, it will pave the way for more Tom Thompsons.

(Originally published on December 18, 2015; here are other pieces on Tom Thompson -- My Opposite and  Final Hours)

Thursday, July 13, 2017

We Saw Monsters, She Saw Humans

Scharlette Holdman, a true hero in the death penalty community and a friend and mentor to me, died yesterday.  Scharlette came to California in the early 1990s, where she taught me and so many other lawyers, investigators and experts about the critical importance of telling our death row clients’ life stories. She taught us how to obtain and develop the sources of information to document those stories, and she taught us how to present those stories in a way that would resonate with judges and juries. And she taught us to never give up fighting for our clients. Her brilliance, compassion, relentless dedication and self-effacing humor should serve as a model for all who continue the fight for social justice.  -- Lovechilde

Guest Post by Maurice Chammah
(originally posted at The Marshall Project)

Scharlette Holdman, whose pioneering work with defense lawyers contributed to the decline of the death penalty nationwide, and whose clients included Ted Kaczynski, Dzhokhar Tsarnaev, and Khalid Sheikh Mohammed, died Wednesday. She was 70.

In the tight-knit world of defense lawyers who focus on the death penalty, Holdman was a revered figure, a non-lawyer responsible for the development of mitigating evidence, aimed at convincing jurors to spare the lives of men and women whose crimes, at first blush, only elicited disgust. It is now common practice for capital defense lawyers to hire “mitigation specialists,” and in recent years such evidence has often convinced district attorneys not to seek the death penalty in the first place.

“Her enthusiasm and strength of personality inspired hundreds of young people to join the struggle against the death penalty,” said Judy Clarke, the criminal defense attorney, who worked with Holdman on several high-profile cases.

Holdman grew up in Memphis, Tenn., the daughter of a landlord who described collecting rent and evicting his poor black tenants as “going niggering,” according to the journalist David Von Drehle, who profiled Holdman in his book Among the Lowest of the Dead. She rebelled, studying anthropology and working among civil rights activists before running chapters of the American Civil Liberties Union in the 1970s. During those years, the Supreme Court struck down the country’s death penalty laws and state legislatures raced to rewrite them. When the court restored capital punishment in 1976, it declared that those who sentence people to death must be able to consider “compassionate or mitigating factors stemming from the diverse frailties of humankind.”

As the number of death row prisoners grew, Holdman ran the Florida Clearinghouse on Criminal Justice, where she tried to find lawyers for the men as their execution dates approached.

“She was like a medic performing triage at a train wreck,” Von Drehle wrote. “The first job was to determine who was closest to dying.” She was famous for her skill in cajoling lawyers over the phone into taking on appeals. She worked round the clock for $600 per month while raising two kids, surviving on KFC fried chicken, coffee, cigarettes, and jug wine, all the while gaining a nickname in the press: “Mistress of Delay.”

In such grim circumstances, a macabre sense of humor flourished. On the anniversary of an execution, she sent Florida attorney general Jim Smith a “deathday cake” with black candles.

In another case, while trying to show a court that a mentally ill man was not “competent” to be executed, she encountered a state-hired psychiatrist who said the man had beaten her at tic-tac-toe, thus proving his mental acuity. Holdman remembered that as a child she’d seen a chicken at a fair that could play tic-tac-toe, and she tried to get such a chicken admitted as a witness. The judge “felt that bringing the chicken into the courtroom to play tic-tac-toe would degrade the dignity of the court,” Holdman later told This American Life. “I thought that the dignity of the court was degraded by executing a mentally retarded, mentally ill person.”

Holdman later worked in California and Louisiana, and shifted from appeals to investigations before trial. Her training in anthropology allowed her to develop a deep understanding of her clients and their backgrounds. “What she saw is that killers are not just born,” said lawyer George Kendall, who represents death row inmates. “They have had unbelievably abused and neglectful lives, and that history is relevant. You become your client’s biographer, you speak to the 60 most important people in that person’s life — friend and foe.”

Many clients had suffered sexual abuse and other traumas, and trust was key. “How do you get people to talk about the worst family secrets? None of that comes easily,” said James Lohman, a lawyer who worked with her in Florida. “She figured it out, and then trained people how to do it.” Many of the mitigation specialists who followed in her footsteps are journalists and social workers. “It’s the antithesis of being a lawyer; it’s all about human feeling and connection.”

In recent years, Holdman worked with the lawyer Judy Clarke on the cases of Jared Loughner, who pled guilty to the 2011 mass shooting in Tucson in which U.S. Rep. Gabrielle Giffords was injured, and Eric Rudolph, responsible for the 1996 bombing at the Summer Olympics in Atlanta. She was famous for her devotion to her clients, and they often grew attached to her; after Ted Kaczynski, known as the Unabomber, was sentenced to life in prison for a series of bombings, he asked that Holdman be given his Montana cabin. (According to The New Yorker, the government did not let her keep it.)

Her final client was Khalid Sheikh Mohammed, who is accused of planning the 9/11 attacks. She studied Islam while preparing for his military trial. She received a Muslim burial Thursday, according to a colleague.

Tuesday, June 27, 2017

Trumpcare: Everything That Is Despicable About The GOP In One Bill

This is the final, febrile end-stage of the prion disease that has afflicted the Republican Party since Ronald Reagan first fed it the monkeybrains in 1981. -- Charles Pierce
The Senate's health care bill, cobbled together in secrecy by a few white men without input from health care experts or stakeholders (or even Republican women Senators) and rushed towards a vote before its impact could be fully digested, is a heartless piece of crap that would be devastating to the poor while providing a massive tax cut to the already-wealthy.  It does nothing to address the overarching problems with our nation's health care such as controlling rising costs or stabilizing insurance markets.  Oh, and it would defund Planned Parenthood too.  In short, it encapsulates perfectly today's Republican Party:  mean-spirited, lacking transparency, unconcerned about policy, and bolstered by lies and obfuscation.

While it appears that the bill is being pulled back in tactical retreat because there aren't enough votes to pass the Senate -- including recalcitrant Republicans who did not find the bill harsh enough -- it is worth examining what the Republican majority was trying to achieve.

The CBO score tells the story.  The bill would leave 22 million uninsured.  It would cut spending on Medicaid -- which insures most Americans in nursing homes, the disabled and the poor -- by $772 billion over 10 years, leaving 15 million fewer covered in that program.  These cuts would, however, allow for a $541 billion in tax cuts, mostly for high income earners. 

But you wouldn't know that from their comments on the TV shows, where Republicans brazenly lie about the bill's impact.  Medicaid will be cut by $772 billion, but according to Trump spokesperson Kellyanne "Alternative Facts" Conway,  "these are not cuts to Medicaid."  And in the face of rising deductibles and the slashing of subsidies for the poor and elderly, HHS Secretary Tom Price insists that "no one would be worse off financially." 

Indeed, how would Republicans know the ultimate impact of their bill given how unconcerned they are with policy-making. This is all about fulfilling a long-held promise to the base to gut "Obamacare" and capitalizing on a fervent ideological goal to provide deep tax cuts for the wealthy.  In stark contrast to the Affordable Health Care Act, which was subject to 79 committee hearings and months of refinement and negotiations, the bill was crafted in secret with zero committee hearings.  In a revealing article in Vox, Republican Senators could not answer basic questions about what problems with health care the legislation was designed to address or if they could identify a problem,  how the legislation would solve it.  The lack of concern over policy is best captured by Senator John McCain's response which was that the problem the bill was trying to solve was "getting 51 votes." 

Even the New York Times' erstwhile GOP apologist and wanker emeritus, David Brooks, appears disgusted by the Republican Party's lack of vision and manifest cruelty.  As he sadly admits, all Republicans stand for is less taxes and cutting open-ended entitlements.  And "because Republicans have no national vision, they seem largely uninterested in the actual effects their legislation would have on the country at large."

If they were transparent about their goals, if they relied on the democratic processes to achieve them, Republicans would fail miserably because what they want -- unfettered corporate power and wealth in the hands of the few and a regressive social agenda  -- is not what a majority of Americans want.  And so they have to suppress votes, control the courts, and rely on massive corporate donations.  They have to craft bills in secret, and do away with traditional norms of governance.  And they have to prop up a bigoted, mentally unstable, ignoramus to do their bidding despite his danger to the country and the world. 

The good news for us is that when their plans, like the health care bills put forward by the House and by the Senate, are exposed to the light and subject to the growing resistance, support quickly evaporates and they have to surrender -- or at least retreat.  The silver lining for Republicans in Congress is that if their conduct is a product of prion disease from eating those infected monkey brains, as Charles Pierce has long surmised, at least they have a decent health care plan to deal with it.

Friday, June 23, 2017

Post-Mortem: Special Election Edition

Yes, the Democrats just lost two special elections for House seats -- in Georgia and South Carolina.  Together with earlier losses in Montana and Kansas, the Dems are 0-4.  (Actually, the Democrats did win a special election in Los Angeles in June.)  Losing sucks.  But given the deep redness of these Congressional districts, the races should not have been close and the narrow margin of defeat actually bodes well for the mid-terms.  As Nate Silver says, the results are "consistent with the sorts of results Democrats would expect if they were on track to compete for the House next year."  And with the Democrats needing a net of 24 seats to flip the House, there are, according to the Cook Political Report, 77 congressional districts held by Republicans that are more Democratic-leaning than the district in Georgia that was so closely fought. 

So, there's hope and there's a lot of work to do.  But first, we have to endure the usual self-loathing and destructive finger-pointing from the Democrats who are insisting, particularly in the Georgia race, that their candidates should have attacked Trump more (or less) or promoted a more populist message or should have been more issue-oriented -- or that everything is Nancy Pelosi's fault.  There are certainly some good arguments about how these campaigns -- and the candidates -- could have been stronger but I can't go along with the Democrats who despair that the Party's brand is "toxic" and that the solution is to demote Nancy Pelosi as House minority leader.

Here's the thing.  The Democratic Party is by nature a messy coalition that has long been an easy target for Republicans to drive wedges through.  What Republicans have been remarkably successful at is stoking the culture war by demonizing Democrats as dangerous -- e.g., stirring up violence with their hateful rhetoric and lax immigration policies -- and elitist -- e.g., ignoring and belittling working class concerns (white working class, anyway)

It is what Republicans have been doing ever since Nixon.  As Greg Sargent puts it: "For half a century, they’ve been telling voters that Democrats are alien radicals who indulge criminal minorities and bring chaos and violence wherever they go."  Or per Digby:  "They will always find a way to mock Democrats as not being red-blooded Real Americans."

Republicans are expert at this but the response isn't to buy into their bullshit and pile on.  Sure, I've got a few issues with Nancy Pelosi but the notion that she is the problem is absurd.  The voters who (a) know who Pelosi is and (b) see her as the root of evil in America are already unsalvageable.  Eric Levitz is right that "the Democratic Party should try to convert some Republican-leaning voters — but the ones whose amygdalae flare up when they think about a liberal woman from San Francisco holding a position of power are not among them."

One way for Democrats to fight back is to do a far better job at not only going after Trump but tying his ignorant, erratic, incompetent, corrupt ass to every Republican candidate.   It is hard to know where the various investigations and law suits against this malevolent orange shit gibbon are going but the Republicans' wholesale refusal to hold him accountable for anything -- from his constant lying to his brazen self-enrichment to his abuse of power and likely collusion with Russia -- requires Democrats, as I've argued repeatedly, to demonstrate every day that this is not business as usual.  They must use every technicality and procedural rule to throw sand in the gears of the government to slow, if not shut, it down.  There is, in fact, no daylight between Trump and the Party he leads, and we need to make Republicans pay dearly for their cynical insistence on putting their Party over the safety and security of the Country.

Beyond Trump, Democrats must not be cowed into abandoning the fundamental principles of the Democratic Party to avoid the Republican attack ads that seem to resonate with those old Reagan Democrats and their ilk.  What fundamental principles, you ask?  Well, I would argue they include social justice -- or, what is disparagingly referred to as "identity politics" -- which I take to mean a focus on racial justice, gender equality and women's reproductive health, humane immigration policies and LGBT rights.  Basic Democratic principles also include believing in climate change and in the urgent need to combat it, ensuring health care coverage, supporting public education and affordable colleges, protecting the rights of workers, and strengthening the safety net. 

And while there is a need to tailor campaigns depending on a district's particular demographics, that doesn't mean we abandon these principles and support Democrats who, for example, want to roll back abortion rights and same sex marriage to appeal to socially conservative voters.  And it does not mean that the Party should only pay lip service to ending mass incarceration and extrajudicial police killings of African Americans because doing more might not resonate with the broader swath of the white middle and working class that Democrats are trying to woo.

Tom Sullivan argues persuasively that the way to reach outside the Democrats' "diverse, multicultural, multiethnic, progressive urban base" is through the prism of fairness: "On fairness, Americans from all walks of life and all partners in the Democratic coalition can agree. That people who work hard and the unfortunate among us who cannot should be treated fairly and decently, as well as equitably in the abstract, is something that should be fundamental and explicit in our conversations."

This is something Elizabeth Warren, for example, is brilliant at.  In response to the turd of a health care bill Republicans just dropped on America, she put it thus:
Medicaid is the program in this country that provides health insurance to one in five Americans. To 30 million kids. To nearly two out of every three people in a nursing home . . . These cuts are blood money. People will die. Let’s be very clear: Senate Republicans are paying for tax cuts for the wealthy with American lives. . . . Senate Republicans know exactly what they are doing with this health care bill.  Their values are on full display. If they want to trade the health insurance of millions of Americans for tax cuts for the rich, they’d better be ready for a fight.  Because now that this shameful bill is out in the open, that’s exactly what they’re going to get.
There's your primer on how to speak to the American people. 

The lesson from losing these special elections on the heels of losing the presidential election and the Congress isn't to turn away from the goal of a pluralistic social democracy in order to persuade less educated white voters to abandon the Republican Party. Those voters, as Charles Pierce says, have been "buying what the radicalized Republican party has been selling since Reagan rode out of Trickledown Gulch back in 1980. . . [and have] easily gobbled up the fictions about welfare queens, and "crazy checks," and big black bucks buying T-Bone steaks, and, most recently, of immigrants come to steal your jobs and cut your throats in the night."  They have been "worried so profoundly about [their] neighbors who were black, or Hispanic, or Muslim that [they] handed the government to the people who have been picking [their] pocket and selling off [their] birthright for going on four decades."

If what they've seen of Trump's presidency and Republican malpractice as evidenced by the latest health care bill isn't enough to make them receptive to a Democratic Party pitch for fairness because it is one that embraces the aforementioned blacks or Hispanics or Muslims, there's nothing we can do about it.  It just means we need to energize and organize and do a better job of getting out the fucking vote next time.

Friday, June 16, 2017

No Lifetime Appointments While There Remains A Cancer On The Presidency

As we brace for the next revelation to contribute to Trump's "downward spiral," as Sen. Bob Corker (R-Tenn) put it, let's not lose sight of the unmitigated and long-lasting damage the malevolent orange shit-gibbon can still wreak -- particularly with regard to the federal judiciary.  Remember, the Republicans didn't only steal a Supreme Court seat when they refused to even hold hearings on Obama's nominee for the high court.  They also mucked up the process for Obama's nominees to the lower federal courts.  As a result, only twenty district court and appellate court judges were confirmed in the last two years of Obama's presidency (compared to three times that many for each of his three immediate predecessors).

This means that Trump has the opportunity to fill over 130 vacancies on the federal bench and, in doing so, drastically reshape the courts with radical right wing judges who will roll back rights, strike down regulations and protect corporate wealth.

While there has justifiably been great attention focused on how the balance of power on the Supreme Court could drastically shift if there are further vacancies during Trump's time in office, the reality is that the lower federal courts -- both the courts of appeal and the district courts -- have enormous influence on the application and scope of federal laws and constitutional rights.  After all, the Supreme Court grants review in less than 2% of the roughly 7,000 certiorari petitions that are filed every year, leaving in place the vast majority of lower federal court rulings for which review is denied.

As Charles Pierce reminds us, Trump "subcontracted the job of picking judges to the Federalist Society, the Heritage Foundation, and various other wingnut intellectual chop shops" and so the scary nature of the first sixteen Trump has nominated should not surprise us.  For example, there's John Bush (52-years old), nominated to the Sixth Circuit Court of Appeals.  Bush blogs under a pseudonym at Elephants in the Bluegrass.  As Dahlia Lithwick describes:
His wide-ranging and unfiltered commentary has included, for instance, the claim that abortion and slavery are “[t]he two greatest tragedies in our country.” His blog posts have cited conspiracy theories and false information, including references to the claim that President Obama was not born in the United States. In his Senate questionnaire, he described the vicious 1991 beating of Rodney King as a “police encounter.” As Eleanor Clift notes in the Daily Beast, he has also gone on record arguing that the Supreme Court made a bad ruling in the landmark freedom of the press case New York Times Co. v. Sullivan.
During his confirmation hearing, according to Lithwick, Bush "apologized for his use of anti-LGBTQ slurs and insisted that once he dons the black robes, he will be a new man."  Right. 

Then there's Damien Schiff (37 years old), nominated to the Federal Court of Claims.  Schiff  once called Justice Anthony Kennedy a "judicial prostitute" and strongly disagrees with the Supreme Court's decision that struck down statutes criminalizing sodomy.  He has criticized an anti-bullying program taught in a California school district, finding it problematic to teach "not only that bullying of homosexuals is wrong, but also that the homosexual lifestyle is … good, and that homosexual families are the moral equivalent of traditional heterosexual families.”  He added that he would have objected to an anti-racism curriculum if taught in Arkansas in the 1950s.

Finally, there's Kevin Newsom (44-years old), Trump's pick to sit on the 11th Circuit Court of Appeals.  Newsom wrote a law review article comparing the reasoning of Roe v. Wade with that of the Dred Scott decision.  As Alabama's solicitor general he defended Alabama's policy of failing to provide lawyers for post-conviction review of death sentences in a state where woeful representation at the trial level is the norm. And he decried the Supreme Court's ruling that found it unconstitutional to execute juveniles.

That's a pretty dire representative sample.  Meanwhile, many of Trump's other nominations are Scalia acolytes (like Trump's new Supreme Court justice) who believe in an originalist interpretation of the Constitution -- a flawed, result-oriented judicial philosophy that is well outside the mainstream of legal thought.  The consequences for civil rights, voting rights and LGBT rights, for women's reproductive health and health care reform, for enforcement of environmental and Wall Street regulations, for consumers and unions, for gun control and campaign finance reform, and for criminal justice and social justice could not be more bleak.

But beyond judicial philosophy, the more basic issue is whether a president whose very legitimacy has been called into serious question -- whose administration is under investigation for its connections to a foreign power that interfered with the election, for abusing the power of the office and for obstructing justice -- should be able to make lifetime appointments that will influence our legal rights and remedies for generations. 

Even without the filibuster, which is no longer a permissible tool for blocking nominees, there are steps Democrats can take to slow -- if not, shut -- things down while these questions remain unresolved.  Indeed, the Judiciary Committee should have its hands full investigating Russia-gate and related obstruction of justice allegations.  In addition, states with Democratic Senators can still withhold the "blue slip," a tradition that allows home-state senators to block nominees -- and one that Republicans used to stymy 17 Obama nominees.  (Republicans, however, are -- what a surprise -- threatening to do away with the blue slip for appellate court nominees.)     

Democrats cannot let Congress return to business as usual.  That means using every technicality and procedural rule from objecting to unanimous consent requests to forcing roll call votes on every matter.  And it means using every opportunity to speak on the Senate floor to keep Trump's incompetence, instability and corruption at the forefront of our political discourse.  And it means using the Senate rules that encourage free and open debate to force Republicans to answer for their unwillingness to confront Trump's incompetence, instability and corruption. 

Trump has yet to fill an unprecedented amount of vacancies throughout his administration, many of which require Senate confirmation. The tenure of such appointees, however, is generally only as long as the president remains in power, and so the damage they could do, while very real, is at least somewhat circumscribed. (The FBI's 10-year term is a notable exception.)  If Trump is removed from office, those political appointees can be removed too.  Not so with federal judges, who are appointed for life.  As the drip, drip, drip of scandals continue -- while there remains a cancer on the presidency -- there should be no lifetime appointments.

Thursday, June 15, 2017

The Midnight Massacre: A Date Which Will Live In Infamy

"There is actually a good argument that Tom Seaver should be regarded as the greatest pitcher of all time ... Seaver pitched for eight losing teams, several of them really terrible, and four other teams which had losing records except when Seaver was on the mound."  —Bill James, The New Bill James Historical Baseball Abstract, 2001
On June 15, 1977, the New York Mets traded Tom Seaver.  It has been 40 years, but remains a painful memory for Met fans of a certain generation who treasured each and every time "The Franchise" took the mound.  It was a wakeup call for those of us who, until then, refused to think of baseball as a cold-hearted business.

Only 32 years old at the time of the trade, Seaver was the greatest player the Mets ever had and one of the greatest pitchers in Major League history.  His pitching form was a thing of beauty -- both powerful and graceful.  He was called "The Franchise" because of how central he was to the Mets' identity, leading them from a laughingstock to a world championship in 1969.

Even with the miraculous World Series win in 1969, the Mets continued to be a feeble-hitting team, and Seaver had to consistently pitch flawlessly to keep his team in games, often losing heartbreakers 2-1 or 1-0.  Typical was 1971, when he led the league in ERA (1.76) and strikeouts (289 in 286 innings), pitched 21 complete games and still lost 10 games, going 20-10. Had Seaver played with a decent team for the bulk of his career, his still-remarkable numbers would be off the charts.

Seaver continued to pitch brilliantly for a mostly awful team, and then he was gone.  To make a long story short, the penurious owners had no understanding of how the game was changing and refused to renegotiate Seaver's contract.  Instead they shipped him off to the Cincinnati Reds for a collection of mediocre players -- Pat Zachry, Steve Henderson, Doug Flynn and Dan Norman.

I attended Seaver's return to Shea Stadium.  It was disorienting seeing him in a Reds uniform and it was even more disorienting to find myself rooting against the Mets.  But, along with the rest of the crowd, I was wholeheartedly cheering for Seaver, who beat the Mets that day.   

After some excellent years with the Reds, Seaver was traded back to the Mets for the 1983 season.  It was indescribable to see him back in orange and blue, pitching a shutout on Opening Day.  After that he didn't have a great year -- and neither did the Mets -- but with Seaver wearing his familiar number 41, the Mets seemed like a team on the rise, with promising young pitchers, a Rookie of the Year in Darryl Strawberry, and the acquisition of Keith Hernandez.

But it was not to be. The Mets would have to rise without Seaver.  Incredibly, before the 1984 season began, the Mets left the 40-year old Seaver off the protected list, assuming no other team would want him.  The White Sox quickly scooped him up, leaving us distraught once again.  Seaver won 15 games for the White Sox in 1984 and 16 in 1985, including his 300th.  In 1986, he finished an injury-plagued season with the Red Sox.  (A bad knee prevented him from playing against the Mets in the World Series.)

The Mets tried to atone once more, hoping to bring Seaver back to the Big Apple to finish his storied career where it began.  But after pitching a few exhibition games in June 1987, Seaver realized he had nothing left and announced his retirement. 

3 Cy Young Awards, 311 wins, 61 shutouts, 3,640 strikeouts and a 2.86 E.R.A.  In 1992, he was inducted into the Hall of Fame.  A career of remarkable moments and incredible milestones marred only by stupid, short-sighted management decisions.  That's your Franchise.

Wednesday, June 14, 2017

Contempt For Congress

When witnesses are called before a Congressional committee to testify under oath, they are required to answer the questions put to them unless they can assert a legal basis for refusing to do so.  Such valid bases include the Fifth Amendment privilege against self-incrimination and the attorney-client privilege.  Witnesses can also state that their testimony involves classified information or information that implicates national security, and request that such testimony be provided in a closed session. 

The president can invoke executive privilege to prevent members of his administration from testifying about matters involving national security.  Executive privilege has also been used to shield the  “deliberative process” which is meant to “encourage open, frank discussions on matters of policy between subordinates and superiors.”  But claims of executive privilege can be overcome by a compelling government interest in disclosure and, as the Supreme Court held in U.S. v. Nixon, it does not apply to information related to criminal activity.  Further, like all other testimonial privileges, it can be waived if the holder of the privilege, e.g., the tweeter in chief, opens the door. 

Attorney General Jeff Sessions appeared before the Senate Intelligence Committee and refused to answer questions about his communications with Trump, including those involving the firing of former FBI Director James Comey.  He referred to some vague DOJ policy that prevented him from discussing his communications with the president but was unable to cite to any specific written policy.  When Sen. Kamala Harris (D-Bad Ass) tried to pin him down on the existence of this policy, he claimed he was too nervous to answer the question and had to be bailed out by John McCain (R-Old White Man), who scolded Harris for being too tough on his friend.

Sessions also relied on an indefensible interpretation of executive privilege.  Without invoking the privilege directly, which only the president can do, he refused to answer questions by claiming it would not be appropriate to do so because the president might want to invoke executive privilege at some point in the future.  Sen. Martin Heinrich (D-N.M.) made plain that Sessions was impeding a Congressional inquiry without a legal basis:
So my understanding of the legal standard is either you answer the question, that's the best outcome. You say 'This is classified, can't answer it here, I'll answer it in closed session,' that's bucket number two. Bucket number three is to say I'm invoking executive privilege. There is not appropriateness bucket. That is not a legal standard.
Previously, Director of National Intelligence Daniel Coats and National Security Agency Director Adm. Michael Rogers refused to answer questions about the extent of Trump's meddling with the investigation into the campaign's involvement with Russia. Rogers said he would not answer questions because "I feel it is inappropriate." Coats also said he did not feel it was "appropriate" to answer questions but conceded he had no legal basis for his refusal.  To paraphrase Senator Heinrich, there is no fucking appropriateness bucket.

The Senate Intelligence Committee has been tasked with investigating Russia's interference with a presidential election and the Trump campaign's role in that interference.  These three witnesses are critical to that investigation but have undermined any meaningful inquiry not only by their stonewalling but by giving other potential witnesses a fairly easy roadmap for doing the same. 

The only way for Congress to stop this intransigence from Trump loyalists is to require them to answer questions or be held in contempt of Congress.  Penalties for contempt range from a fine of up to $1000 and imprisonment for not less then one month or more than a year. 

Generally how this works is that the Committee would draft a contempt resolution, and would vote to have that resolution go to the full Senate.  If the Senate then voted in favor of contempt, the matter would be referred to the U.S. Attorney for D.C., who would refer the matter to a grand jury. 

If you haven't already guessed, the problem is that a majority is required for both a resolution to get out of Committee and for a finding of contempt by the Senate.  And, of course, the Republicans are in the majority and have no interest in citing for contempt anyone protecting their leader.  They are more likely to give them the Congressional Medal of Honor.  (Of course, this raises the stakes for the Special Counsel's investigation and explains why Republicans are trashing Special Counsel Mueller's credibility and Trump is threatening to fire him.)

But this doesn't mean Democrats should just go along as if any of this is ok. Russia interfered with our election and the beneficiary of that interference has not only shown no concern about this body blow to our democracy, he is trying to prevent any inquiry into how it happened and how to stop it from happening again.

We need to demand that Democrats draft contempt resolutions for recalcitrant witnesses and force Republicans to vote on them.  And, more broadly, we need to demand that Democrats eschew Senatorial courtesy and throw sand in the gears of the Senate -- using every technicality and procedural rule from objecting to unanimous consent requests to forcing roll call votes on every matter. They must slow down all Senate business to a crawl until Republicans are forced to show some modicum of concern for our Country and act responsibly by forcing witnesses to answer questions.

What becomes clearer every day is that there is no daylight between Trump and the Republican Party that is enabling him.  They are both utterly contemptible.  Democrats ignore this at their -- and our -- peril.