Sunday, October 14, 2018

A Note to the People of the Florida Panhandle

A note to the good people of the Florida panhandle.  As the good people of Louisiana could tell you:  If you are going to have a natural disaster, don't have it in the run-up to an election.  The elite media will be too distracted by the election to call attention to your situation, so help will not be on its way.

And a note to our elite media:  Come on guys!  I don't buy the argument that people in the New York to Washington corridor are less authentic and "real American" than the rest of us, but the rest of us really do exist and you have an unfortunate tendency to forget that fact.  Until you can remember it on a regular basis, and not just to scratch your heads over why Trump was elected, the rest of us will have legitimate grievances about you.

PS:  That does not mean that our elite media ignoring the hurricane is why Donald Trump was elected.  That would make sense only if he cared more about the hurricane than our elite media does, which I see no evidence to support.  In fact, Trump seems aware that the country exists at all only to the extent that it appears of Fox News.

Thursday, October 11, 2018

How Much Are Crises a Choice?

With the disappearance of Jamal Khashoggi, we may get a chance to see to extent to which crises are a choice.

Khashoggi is/was a Saudi citizen, a legal US resident, and a contributor to the Washington Post.  On October 2, he walked into the Saudi consulate in Turkey to pick up some divorce papers and has not been seen since.  Since he has given no evidence since of being alive and free, the only question can now be whether he is being held captive at the consulate, whether he has been forcibly taken to Saudi Arabia, or whether he has been killed.  The more time goes by without evidence that Khashoggi is alive, the stronger the suspicion that he was killed.

In other words, our putative allies, the Saudis at best kidnapped and more likely killed a US resident under our protection and contributor to a major US newspaper.  Under any other President, a diplomatic crisis would be underway.  Trump, who loves the Saudi government and hates the Washington Post, is doing his best to ignore the whole thing.

But our political and media establishment are in an uproar.  Members of Congress in both parties are demanding action.  Newspapers are publishing ever more embarrassing articles.  The pressure to have a crisis is growing.  We will see whether Trump can brazen it out or not.

Sunday, October 7, 2018

What if Kavanaugh Had Gone the Contrition Route?

I get why Republicans are applauding Trump for not withdrawing the Kavanaugh nomination.  They see it as standing up for bullies (a thing that would be more admirable if they didn't so often express admiration of Trump for being a bully).  They also feared that any replacement would walk into the same buzz saw.  And they are certainly right the Democrats would have been even more outraged -- and even some Republicans might have disassociated themselves from him -- if Kavanaugh had directly attacked Christine Ford right after her compelling testimony.  (That has not stopped some from doing so as the memory of her testimony becomes more distant).  And I have considerable sympathy with the view that the statute of limitations has run on youthful indiscretions, and that if we make a spotless adolescence a requirement for office we are going to shrink the pool of candidates inordinately.

I suppose I should also give Kavanaugh a little grudging respect for knowing not to go too far.  Saying:
This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about president trump and the 2016 election, fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups. This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque, character assassination will dissuade confident and good people of all political persuasions from serving our country and as we all know in the political system of the early 2000s, what goes around comes around.
is utterly inappropriate in a Supreme Court nominee, but it fires up the Republican base.  If he had thrown in comments about Soros or the Deep State, some moderate Republicans might have seen belief in paranoid conspiracy theories as disqualifying.

But Republicans are wrong to say that attacking the Democrats, attaching Ford, or withdrawing from the nomination were the only options.  Another option is what might be called the Clarence Thomas option -- same anger, but minus the partisanship.  Can't find the link, but that appears to have been what the first draft of Kavanaugh's speech did.  He later reworked it to make it more partisan.  Would Democratic reaction have been any different if Kavanaugh had expressed the anger minus the partisanship?  I'd guess the outrage volume would have been a little lower, but not a lot.

What if he had gone the contrition route?  What if he admitted the obvious, that he did binge drink in high school and college, and that he did engage in the sort of rowdy behavior that binge drinking is mostly an excuse for?  What if he acknowledged that his drunken rowdiness did involve sexual horseplay of the kind Christine Ford and Deborah Ramirez described, and that it was most certainly in bad taste, but never malicious and, so far as he was aware until Dr. Ford came forward, always consensual.  What if he had described -- in extremely delicate terms so as not to seem to be victim-blaming -- the sort of women who were regular parts of that scene, and who thought horseplay of that kind was harmless fun.  Acknowledge that it was juvenile and selfish never to consider that there might be women who did not see his horseplay in such terms.  Emphatically deny any attempt to harm or coerce anyone and offer profound apologies if any women mistook his intentions.*  Unleash all his understandable anger on Michael Avenatti for promoting outrageous lies.  (That probably wouldn't alienate Democrats too much; many of them have been quite critical of Avenatti as well).

Then explain that he came to recognize how juvenile and offensive his behavior had been, even if he did not realize it had actually harmed anyone.  Explain that he made up for it by showing extra respect for women during his mature career.  Point out that there are zero complaints about his behavior as a lawyer or judge.  Angrily declare that the statute of limitations has run on youthful indiscretions and that stigmatizing forever anyhow who engaged in them is too harsh and unforgiving a standard for one whose adult conduct has been exemplary.

What would have happened in that case?  Well, Kavenaugh would have been confirmed.  I have no doubt that it would have secured the vote of every Republican in the Senate, along with Joe Manchin and probably several other red state Democrats.  The confirmation margin would have been narrow but respectable.  This is not to say that all Democrats would have been satisfied.  Many would have expressed outrage that Kavanaugh couldn't tell consensual from non-consensual horseplay and some would accuse him of blaming the victim.  But I have no doubt he would have been confirmed, with more Democratic votes that he got now.

But that wouldn't polarize and inflame partisan tensions the way Kavanaugh's actual speech did.  Which I assume is the real point.

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*And I will add here that I do think this is the most likely explanation of what happened.  Mark Judge and Brett Kavanaugh were stronger than Christine Blasey and they outnumbered her two to one.  If they had really meant business, I don't think she would have gotten away so easily.  But if she was 15 and not used to that scene she might very well have thought they meant business.  Kavanaugh's failure to remember this episode is probably not so much an alcoholic blackout as simply that similar horseplay incidents were so common -- and usually consensual -- that he can't be expected to remember them all.  That his memory was clouded by alcohol was probably also a factor.

Saturday, October 6, 2018

Hope and Despair in the Age of Trump

Not so much the Kavanaugh appointment as Republicans' reaction to it has left me despairing about our future more than anything else.

On the one hand, there is cause for optimism.  It appears that the country can survive a Trump presidency.  The economy is booming, international crises have (mostly) been avoided, trade wars can be averted by putting a few tweaks on old agreements, and even Obamacare is limping along.

Granted, this is partly because in the early phases of his Presidency Trump had to be saved from himself.  He wanted to blow up NAFTA, destroy the healthcare system Obamacare created, and possibly start a war with North Korea.  Cooler head prevailed.  And Trump and his circle appear to have matured enough to avoid such disasters in the future.

So why despair?

Well, for one thing, Trump is a bully, and a major reason he has been successful is that his bullying tactics have worked.  For people who like me who oppose bullying tactics, this is rather depressing.

But above all, because it is increasingly obvious that the Republican Party, Never Trumpers included, love these bullying tactics when applied to domestic policy.  Right now Republican are applauding Trump for making the Kavanaugh nomination unabashedly partisan and really more about defeating liberals than anything else.  They are proudly proclaiming that finally we have a President who is standing up to those Democratic bullies and character assassins who have so intimidated Republicans up till now. 

And now we have Republicans declaring Democrats to be an intolerable threat to liberty and the rule of law, Republicans calling protesters paid Soros shills, and even Rudy Giuliani retweeting a call to freeze Soros' assets.  Republicans have been trying to delegitimize the Democratic Party for some time, but this latest outburst ramps it up many-fold.

The real value of Democrats winning the mid-term elections is not legislation.  There is no possibility of Democrats winning enough votes to beat a Senate filibuster, let alone override a Trump veto.  And Republicans seem to have given up on passing any seriously controversial legislation, so there is no real need to block them.  The real value in Democrats winning one or another chamber of Congress is to hold real investigations of what Trump has been up to.  But the events surrounding the Kavanaugh nomination are making clear that no matter what such an investigation reveals, Republicans will simply dismiss it as persecution.  Republicans wouldn't turn against Trump if he shot someone in the middle of Fifth Avenue.  Indeed, I am reaching the point that it wouldn't surprise me for Trump to shoot someone in the middle of Fifth Avenue just to piss off liberals and therefore rally his base around him.

And so here is where my despair really comes from.  Donald Trump is increasingly applying his bullying tactics to domestic politics.  The evidence thus far seems to indicate that bullying tactics work.  The nation and the world can survive Trump's bullying tactics.  But democracy and the rule of law can't.

Sunday, September 30, 2018

Note to Graham: Sexual Misconduct Knows No Party Lines and Neither Do Accusations

And I hope to move a little away from the toxic sludge sewer but not too far to take a minute to commend on Lindsey Graham's comment that Democrats are never accused of sexual misconduct.

And just to be clear, he is by no means the only one to say it.  I hear that alleged often enough on Twitter (admittedly an unrepresentative cross section) to conclude that it must be believed in wide stretches of the right wing.  It's something I truly can't wrap my head around.

What about Bill Clinton?  He was actually impeached for sexual misconduct.  In fact, Lindsey Graham himself served on the House Justice Committee at the time and Brett Kavanaugh was on Ken Starr's legal team.

I would also throw in John Edwards, Democratic Senator from North Carolina, some-time candidate in the Democratic primaries and John Kerry's running mate.  He saw his career end over an affair with a staffer and was indicted for using campaign funds to make payments to his mistress.

And Anthony Wiener, one-time rising liberal light in the House of Representatives who was hounded from office for sexting, hounded from an election for Mayor of New York for same, and eventually prosecuted for sending graphic pictures to a minor.  In fact, it was the discovery of Hillary Clinton's e-mails on his laptop (he was married to her chief of staff) that led to James Comey's fatal announcement that the Clinton investigation was being reopened.

Well, OK, Graham and company may say, but they beat the rap.  Republicans never beat the rap.  It is true that Clinton was impeached by the House but acquitted by the Senate, and that Edwards was indicted by also acquitted.  Anthony Weiner, on the other hand, is currently serving time.  And Republicans have been known to beat the rap as well.  Anita Hill's allegations didn't keep Clarence Thomas from being confirmed to the Supreme Court.  And numerous women coming forward to accuse Donald Trump of sexual assault didn't keep him from being elected President.

Ancient history, they may say.  Even the 2016 election is ancient history.  They are referring to the Me Too movement, which they would presumably call a blatantly partisan movement in response to the election of Trump to bring down Republican politicians.

Aside from the awkward fact that it isn't.  I don't doubt that the election of Donald Trump played a major role in inspiring Me Too.  But what immediately sparked the movement -- it's Archduke Ferdinand moment, if you will -- was the expose on Hollywood director and Democratic donor Harvey Weinstein.  Up till then, our side had been smugly complacent.  Donald Trump's "pussy" tape and the firing of Roger Ailes and Bill O'Reilly from Fox News had convinced our side that this was a conservative issue, born of retrograde ideas about women.  Revelations about Harvey Weinstein, soon followed by Kevin Spacey and Charlie Rose, showed how misplaced that complacency was.  And it proved that sexual misconduct cuts across partisan and ideological lines.  And the Me Too movement was out to show that it made no such distinctions.

It brought down John Conyers, described by Nancy Pelosi as an "icon."  It also forced the resignation of Al Franken, Lindsey Graham's own colleague on the Senate Justice Committee.  And Eric Schneiderman, the Democratic Attorney General of New York, who many were counting on to continue the investigations if Trump shuts down the Mueller probe.

To look for the balance, I did what people do these days and looked it up on Wikipedia.  Beginning with the Me Too Movement, it lists Al Franken as the only sitting U.S. Senator forced out by allegations of sexual misconduct, although Roy Moore lost an election based on similar allegations.  It lists allegations against seven members of the House, four Democrats (one of them gay) and three Republicans.  It also gives the following tallies for states:

Alabama -- One Republican (Roy Moore)
Alaska -- One Democrat
Arizona -- Two Republicans
California -- Six Democrats (including two women) and one Republican
Colorado -- Three Republicans, one Democrat (gay), and one party switcher
Florida -- Two Republicans, one Democrat
Hawaii -- One Democrat
Idaho -- One Republican (who committed suicide)
Illinois -- One Democrat, one Republican
Indiana -- One Republican (the Attorney General)
Iowa -- Two Republicans
Oklahoma -- One Republican
Kentucky -- Six Republicans
Louisiana -- One Republican
Massachusetts -- One Democrat (gay)
Minnesota -- Two Democrats, including Keith Ellison, deputy chair of the Democratic National Committee and US Representative (I am not clear why he is not listed in the US House) and one Republican
Mississippi -- One Republican
Missouri -- One Republican (the Governor)
New York -- Three Democrats (including the Attorney General), one Republican
Ohio -- One Republican
Oregon -- One Republican
Pennsylvania -- One Democrat
Rhode Island -- One Republican
Texas -- Two Democrats
Utah -- One Republican
Wisconsin -- One Democrat
Wyoming -- One Republican (the Secretary of State)

Adding up, I get 40 Republicans and 30 Democrats at the state level, although human error is possible here.  This does suggest somewhat more state Republicans accused than Democrats, but then again, Republicans dominate more state governments than Democrats.  At the federal level, Democrats hold a slight edge.

It is true that the only federal judges named are Republicans Alex Kozinski and Brett Kavanaugh.  Add to that Clarence Thomas, even though that was in 1991, and I will concede that (so far) only Republican federal judges seem to be accused of sexual misconduct.  I will also point out that of the last four Democratic nominees to the Supreme Court, three have been women.

And one of the reasons Democrats are running so many women for office this year is to avoid any nasty surprises.

Another Norm Shredded, Supreme Court Edition

OK, so maybe I'll dip my toe in the toxic sludge just a little.  I just want to point out that Trump, indirectly in this case, has managed to shred yet another norm in our politics.

Let's face it.  Not to be cynical, but underneath all fancy theories of what the Supreme Court should do, everyone really wants it to do the same thing.  Rule in their favor.  It's just that up until now most of us have managed to rationalize it.  We claim that if the Supreme Court would just adopt the right theory of jurisprudence and be strictly impartial, we would always win, or at least almost always.

John Roberts claimed that he would be a neutral arbiter, just calling strikes and balls.  Gorsuch assured us that he would implement the vision of the Founding Fathers.  That the vision of the Founding Fathers looked a lot like the Republican Party platform simply meant that the Republican Party was in perfect alignment with what the Founding Fathers wanted.  The fact that a neutral arbiter calling strikes and balls always seemed to side with big money interests might be written off as coincidence.  Indeed, I have heard conservatives proposing views of the Supreme Court so mechanical that it sounded like a sort of supercomputer.  Program it with the law, key in the specific facts, and it would spit out the one right answer as reliably as a mathematical equation.  (Then why bother having judges at all, one wonders).

This is not to claim innocence for our side.  Conservatives at least claimed that the proper role of the Supreme Court was to pretend we still lived in 1787 and ignore all evidence to the contrary.  Liberal theories were often so incoherent as not to be theories at all so much as wish lists. 

But up until last week, Republicans could pretend, even to themselves, that they wanted a neutral arbiter and were convinced they would win any case before the Supreme Court based on the sheer merits of their case.  Then Kavenaugh came out swinging, making an intemperate partisan speech and promising (in effect) to be an openly partisan judge.  And Republicans suddenly realized that was what they had really wanted all along.

Without Trump in office, it would never have happened.

And so another norm is lost.

Thursday, September 27, 2018

A Few Comments on the Kavenaugh Nomination

Up till now I have done my best to avoid the subject of the Kavenaugh nomination on the theory that if I don't absolutely have to wade through a sewer full of toxic sludge, why would I do it voluntarily?  But since the subject has taken up all the oxygen today, I might as well make a few comments.

I am reasonably confident that Brett Kavenaugh could shoot someone in the middle of Fifth Avenue and the Republicans would still confirm.  This is the absolute most important thing to them.  I recall someone suggesting to Flake or Corker that they block Trump's judges as a way of pressuring him to cooperate and Flake or Corker dismissed that as cutting off their nose to spite their face.  This is quite right from a Republican perspective.  Ultimately Trump doesn't care about judges, except to the extent that he is praised for his choices.  Republicans, on the other hand, care about judges more than anything.  It logically follows that the proposal is absurd.

In pre-Trump days, a nominee could survive allegations like Kavenaugh is facing, but only by going the contrition route.  He would acknowledge that he did binge drink in his youth, that he did drink to the point of blacking out, that he could not say with certainty what happened during the blackouts.  He was out of control when it happened, but since he chose to drink so much he is responsible.  And then he could present himself as a reformed man and discuss how he put all that behind him.  No more.  In the Trump era, the way to survive such allegations is to lie through your teeth about everything and accuse your attackers of being a partisan conspiracy.  This is very much a Bad Thing, although I suppose we should be glad that at least he left out the Deep State and Soros money as being a little too paranoid.

It is also depressing that people on opposite sides of the partisan line watched the same testimony and saw completely different things.

Finally, does this show that Democrats made a mistake in eliminating the judicial filibuster?  I would still say no.  I also highly recommend this article on the subject.  The whole idea that requiring a super majority is the norm and passing anything with a simple majority is an extraordinary event is a recent development.  Traditionally, passing legislation by a simple majority was the norm and filibusters were an extraordinary event, reserved for the most controversial legislation.  Filibusters of nominees were unheard of.  Clarence Thomas was confirmed by a vote of 52-48.  While many things about the nomination were controversial, no one questioned the use of a simple majority to confirm him.  The article blames Democrats for beginning the practice in 2003.  It was at that time that Mitch McConnell called eliminating the judicial filibuster the "nuclear option," suggesting that it was a very radical measure indeed.  Judicial filibusters were suspended for a while, but began to creep back in.  Under the Obama Administration, Republicans began to filibuster all nominees for the D.C. Circuit court, refusing to confirm any regardless of the merits. It was this that inspired Harry Reid to end the judicial filibuster.  To believe that Republican would have allowed Democrats the same privilege once a Republican was elected is extraordinarily naive.

Let's face it.  We, as a country have reached the point that Republicans will not confirm any judge who is not approved by the Federalist Society and Democrats will not confirm any judge who is approved by the Federalist Society.  In effect, we have reached the point that judges cannot be confirmed unless the President and the Senate are controlled by the same party.  The last thing we need is to be unable to confirm judges unless the President has a super-majority in the Senate.