Author: wrongologist

Could A Discharge Petition Force The House To Vote On A Debt Ceiling?

The Daily Escape:

Cold morning on the Snake River, Grand Teton NP, WY – January 2023 photo by Laura Phelps Sundria

We haven’t written about discharge petitions in a few years. But with the likely control of much of the House’s agenda by the Freedom Caucus, they may become important. From the WSJ:

“Democrats and some centrist Republicans are in early, informal conversations about dusting off a rarely used parliamentary procedure that could force a vote to raise the nation’s borrowing limit, ahead of a showdown in coming months over government spending. The process, known as a discharge petition, requires 218 signatures, regardless of party—a majority of the House—to dislodge a bill from committee and move it to the floor.”

The tactic is seen as a way to potentially circumvent efforts by House GOP leadership and the Freedom Caucus to block a debt-ceiling increase. Congress must raise the debt ceiling to allow the Treasury Department to issue more debt to pay for existing US government financial obligations. At stake is the government’s creditworthiness, which also undergirds much of both the American and global financial system.

A default or even the expectation of a default on the US debt, could trigger a lowering of the US credit rating, raising our government’s borrowing costs for years. It could also bring financial panic or tip the economy into a recession. More from the WSJ:

“…McCarthy reiterated Tuesday he wants to use the debt ceiling as leverage to cut spending. ‘This is our moment to change the behavior to make sure, that hardworking taxpayer, that we’re not wasting their money,’ he said on Fox News.”

Playing politics with the debt limit is stupid. Hold that thought and read this from Ryan Grim at the Intercept: (brackets and emphasis by Wrongo)

“When the House Republicans enacted new rules for the 118th Congress on Monday [they included a rule] that preserves the traditional right of rank-and-file members of Congress to bypass House leadership and put legislation on the floor directly if they obtain the signatures of a majority of the chamber. This opens a handful of legislative opportunities for Democrats, despite Republican ideological cohesion.”

He means a discharge petition. Normally, the House Majority Leader sets the floor schedule, in collaboration with the House Rules Committee, but a discharge petition can automatically pull a bill from committee and move it to the floor. Since Democrats currently hold 212 seats in the 118th Congress (one is vacant), if they can find six Republican votes, they could bring a bill to the floor. For most of the Democrats’ agenda, six opposition votes might be a high hill to climb.

But a discharge petition to raise the debt ceiling is one tool that could work. It would give any like-minded Republicans a route around their own leadership and could be the way the House votes to avert a financial crisis (assuming Democrats could find six Republicans who are unwilling to risk a US government debt default).

That may be possible since there are 18 House Republicans who were elected last fall in districts Biden won in 2020.

If a discharge petition is to be used as a workaround for the looming debt crisis, Democrats would have to move fairly quickly. The rules to bring a bill to the floor of the House require that first, the bill would have to be introduced and referred to committee, according to House rules and precedents. Then 30 legislative days have to pass. A legislative day is one in which the House is in session and then adjourns.

If 218 signatures are collected, an additional seven legislative days need to pass, at which point a motion to discharge the bill would come to the floor on either the second or fourth Monday of the month.

Any motion to discharge filed in February or March ought to be ready for a floor vote by summer. Although the Treasury Department hasn’t given an exact date when default will occur, the expectation is that it will occur in the summer.

Discharge petitions have been successful in the past. It has played a role in shaking loose some historic pieces of legislation, including the Civil Rights Act of 1964 and Equal Rights Amendment in 1970. More recently, a successful petition in 2015 reauthorized the Export-Import Bank, which the Republican House majority adamantly opposed.

We’ll see if McCarthy will stand up to his cobbled together majority and bring a clean debt limit bill to the floor. If not, we’ll see if there are at least six Republicans in the House who have backbones and love their country.

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Biden’s Secret Documents Problem

The Daily Escape:

Spokane in fog, Spokane, WA – January 2023 photo by James Richman Photography

Seems like Biden has handed a present to Trump and the MAGAs by taking some classified documents with him when he left the vice presidency. Republicans pounced on Biden’s gift. Others on the left are working hard to underscore how this situation is different from the investigation into Trump’s handling of classified information after he left office. CNN breaks down the differences for us:

It’s true that there are differences. When the documents were discovered in November by Biden’s attorneys in files at his former offices at Penn Biden, they were turned over the next day to the National Archives (NARA), the responsible party. NARA then made a referral to the FBI, and Merrick Garland asked a Trump-appointed prosecutor, John R. Lausch, one of the two remaining Trump US Attorney appointees to investigate the breach.

Biden’s was the textbook method that’s followed when misplaced classified documents are found. Are you surprised that Biden kept two Trump-appointed US Attorneys? Wrongo was.

In Biden’s case, there wasn’t an earlier request from NARA that was ignored, and no search warrant was required. No lawyers erroneously or dishonestly vouched that Biden was not in possession of classified documents, and there was no effort to obstruct justice.

But the question of how these documents found their way to Biden’s private office once he became a private citizen needs to be investigated. Among the purposes for getting to the bottom of this is that our laws require that classified documents must be under continuous control.

Back in the day when Wrongo had a TS clearance, someone who took a secret document from its filing place signed for it. And if/when a document changed hands, you got a receipt from the next person to prove they had it and not you. And heaven help you if you lost the receipt.

It should be a simple task to follow the chain of custody on the ten documents that were found in Biden’s old office, back to who signed them out. We may learn that it was one of his staffers who took them during the transition period before Biden was inaugurated.

This could become a serious issue if someone was found to have intentionally taken documents with them when they left the White House. Whoever took the documents should be accountable for this mistake, just as Trump should be accountable for mishandling the classified information he brought to Mar-a-Lago.

There’s no reason to excuse Biden for this. Apparently, we need a much better system for controlling classified documents when one administration transitions to another. What’s similar in both cases is that classified information was packed up along with personal items. In Biden’s case, that included documents related to his son Beau Biden’s funeral.

To Democrats, Biden’s slip up may be understandable. And if Trump had apologized for his sloppiness, and most important, cooperated in solving the problem, maybe he wouldn’t be in the trouble he’s in today.

However things shake out legally for Biden or Trump, neither Party should want our nation’s secrets to be insecure. That means we need a new process for inventorying and returning classified materials when they are signed out. But no process will work correctly when the outgoing president refuses to concede the election and instead attempts to launch a coup.

Politically, this looks like it could become a political nightmare, both for Biden and for AG Merrick Garland. Will it damage the document theft case that the DOJ has against Trump? That’s the easiest case for the DOJ to prosecute and win vs. Trump.

We can count on the Republican-controlled House to try to make the Biden document slip up the equivalent to Trump’s legal bind. OTOH, a Republican committee going after Biden on classified documents requires them to acknowledge that what Trump did was wrong, which they have refused to do.

This sets us up for 24 months of political theater. It will look similar to the 2015 Hillary Clinton Benghazi hearings held by many Republican-led House committees. Back then, there were eight Congressional investigations into the Benghazi attacks. The House Select Committee alone spent over 17 months investigating. That was longer than the Watergate hearings.

Listening to these bad faith trolls for the next two years will be exhausting. We know that the various committees that will investigate this are really designed to generate GOP propaganda. They will put the DOJ in a position where they will have to resist giving the committee answers. And on Fox this’ll become screams of “cover up”.

If there is criminal wrong-doing on Biden’s part, you can bet that the Trump-appointed DOJ attorney Lausch will find it. If Lausch doesn’t find any criminal wrong-doing, then we can be fairly sure none took place.

Buckle up.

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A MAGA Idea Wrongo Supports

The Daily Escape:

Sunset, Tucson, AZ – January 2023 photo by Leila Shehab

Sometimes your worst political enemies are on the same page with you. Axios reports that a:

“…threat of cuts to US defense spending has emerged as a flashpoint in House Republicans’ first week in the majority, widening the GOP’s isolationist fault line and exposing the fragility of Kevin McCarthy’s young speakership.”

The backstory here is that according to Bloomberg, among the concessions new House Speaker McCarthy made to secure the job was to agree to vote on a budget framework that caps 2024 discretionary spending at fiscal 2022 levels. Unless the Pentagon is exempted, that could result in a $75 billion drop in defense spending:

“National defense spending, which primarily funds the Pentagon, was about $782 billion in fiscal 2022 and rose $75 billion to $857 billion in fiscal 2023.”

The deal that McCarthy has apparently agreed to would have the House commit to passing bills that would cap all discretionary spending at fiscal year 2022 levels, or roughly $1.47 trillion.

But one of the big wins for Senate Republicans in last year’s budget talks was a bigger defense budget. Sen. McConnell might want to check in with the House MAGA Republicans, since they’re going in the opposite direction.

Wrongo agrees that the idea of cutting $75-$100 billion (or more) from the Pentagon should be up for discussion. Consider that in 2021, the Congressional Budget Office (CBO) released a study that outlined three options for saving over $1 trillion in Pentagon spending over the next ten years without damaging our defense capabilities.

All three options involved cutting the size of the armed forces, avoiding large boots-on-the-ground wars like Iraq and Afghanistan, and relying on allies to do more in their own defense.

Wrongo wrote about the 2021 CBO study here. The CBO report put the potential cut in historical perspective: A $1 trillion cut (14%) over a decade would be far smaller than the cuts to America’s military spending in 1988-1997 (30%), and the 25% cut we had in 2010-2015.

A $1 trillion saving isn’t chump change. Those funds could be used to prevent future pandemics, address climate change, or reduce economic injustice. These are all pressing American problems.

The MAGA’s ideas on defense spending cuts might find support from a few progressives in Congress, including Reps. Barbara Lee (D-CA) and Mark Pocan (D-WI), who pitched a $100 billion haircut for the DoD earlier this year. But this year’s Pentagon budget boost easily passed both the House and Senate on a bipartisan basis.

Both Republican and Democratic House war hawks will resist the idea of cutting defense spending. Some will cite the defense of Ukraine, which will only account for $45 billion of military spending in the coming year. Some will mention Taiwan, citing China’s aggressive military stance toward the island nation.

But how about developing a clear global military strategy along with the willingness to carry it out? Instead of simply talking about how many dollars we should spend.

And the CBO’s proposed strategic shifts don’t account for what could be saved by streamlining the Pentagon by reducing its cadre of over half a million private contractors, many of whom perform tasks at prices higher than it would cost to do the same work with government employees.

The likely outcome is that House Republicans will fail to cut defense spending while sticking to their plan of holding the 2024 discretionary spending flat. So Republicans will focus on social spending to reduce the fiscal 2024 budget to 2022 levels. But if you ask Americans what spending they want to see cut, they will never say that we ought to cut people’s retirement security.

Wrongo has little hope that this 118th Congress will work to solve the three great problems that face America: Our revenue problem, our social spending/cost inflation problem, and our defense spending problem. As Jennifer Rubin says in the WaPo:

“The danger for the GOP has always been that a short stint in irresponsible governance will wake up the electorate to their manifest unfitness, thereby dooming the party’s chances in 2024. The danger for the country is that, in the meantime, the MAGA extremists will do permanent damage to the U.S. economy and national security.”

The hard Right MAGAs and the anti-democracy Republican Party must be made into a permanent minority, as it was during the Roosevelt years, and for decades thereafter.

The battle for 2024 starts now.

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Monday Wake Up Call – January 9, 2023

The Daily Escape:

Kennebunk, ME – January 2023 photo by Eric Storm Photography

Buried in the McCarthy debacle last week was some good news on the abortion front. From the NYT:

“For the first time, retail pharmacies, from corner drugstores to major chains like CVS and Walgreens, will be allowed to offer abortion pills in the United States under a regulatory change made Tuesday by the Food and Drug Administration.”

The online magazine STAT asked an interesting question: (emphasis by Wrongo)

“When the Food and Drug Administration lifted some — but not all — of its restrictions on an abortion pill this week, it raised questions about why these rules were there in the first place. Mifepristone, the drug in question, has been used by over 3.7 million Americans to end early pregnancies since its approval in 2000, is more than 97% effective, tends to have only mild side effects such as cramping, with severe ones occurring in fewer than 0.5% of patients. So why was it on a list of prescription drugs requiring extra precautions and red tape, alongside opioid painkillers?”

More from STAT:

“Many reproductive rights advocates celebrated the change. But to others, the agency hadn’t gone far enough. Having the drug on a list of medicines that require a risk mitigation strategy gives the false impression that it’s dangerous, they argue. To them, it should be treated like any other pharmaceutical that’s been proven safe and effective.”

That might help to ensure greater access at a time when some states have banned it.

Mifepristone pills are already used for more than half of pregnancy terminations in the US. There has been growing demand for them since the Dobbs decision by the Supreme Court overturning Roe v Wade, the 50-year old federal right to abortion.

With Conservative states moving quickly to ban or sharply restrict abortion, these pills have become the focus of political and legal battles, all of which can influence whether an individual pharmacy will dispense the medication.

The availability of mifepristone through pharmacies will probably vary depending upon location. Deep Red areas will probably have fewer pharmacies willing to dispense it – a combination of more pharmacists exercising their right to substitute their morality for a woman’s, and a fear by the pharmacy of negative consequences ranging from boycotts to fire bombings.

Abortion pills are only a small percentage of any pharmacy’s sales, but they could have a big impact on its public profile. Such calculations will influence a pharmacy’s decision, as will the fact that in about half of the US states, abortion bans or restrictions would make it illegal or very difficult for pharmacies to provide abortion pills.

So, yes, this is a positive development, but it won’t be a panacea: Some Republican-allied group will soon start a court battle to try to reverse the FDA’s policy. Eventually, it will come before the six Christian justices on the Supreme Court. This is a battle for civil rights. It needs to be fought on every level from local to federal, and every incremental victory matters.

We can’t let what may happen down the road prevent us from celebrating a win. The Republicans and the Conservative movement aren’t omnipotent gods. We still live in a world where working, fighting, and voting can make a difference.

Consider this: The Republican’s House majority is due to just 6,670 votes out of 107 million cast, says Inside Elections, a nonpartisan publication. That means every vote cast in 2022 mattered. And if a few more in the right places had been cast, it could have made a generational difference.

Time to wake up America! Every year that American women can continue to access abortion, (chemical or otherwise) matters. Every effort to stem the tide of the many actions that are threatening our civil liberties matter. All of this says we still have the power to change America for the better.

To help you wake up, listen to John Mayer perform his 2006 Grammy-winning hit, “Waiting on the World to Change” from his third studio album, Continuum. The song is kind of an apologia for Gen Y’s well-documented apathy, but even that has changed quite a bit in the 17 years since it was written:

Sample of lyrics:

Me and all my friends
We’re all misunderstood
They say we stand for nothing and
There’s no way we ever could
Now we see everything that’s going wrong
With the world and those who lead it
We just feel like we don’t have the means
To rise above and beat it

[Chorus] And we’re still waiting (Waiting)
Waiting on the world to change
We keep on waiting (Waiting)
Waiting on the world to change
One day our generation Is gonna rule the population
So we keep on waiting (Waiting)
Waiting on the world to change

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Sunday Cartoon Blogging – January 8, 2023

On the fifteenth ballot of the new year, the House finally selected Kevin McCarthy (R-CA), as its new Speaker. What ended the impasse? In addition to the list of “concessions” that we know about, what other promises did McCarthy make to Freedom Caucus?

When selecting a new Speaker, the House operates more like a parliamentary system than America is used to or expects. When the Party in power has a slim majority, and if there is contention within that Party, coalitions must be built, promises are made, and concessions are extracted.

It seems that McCarthy relinquished all the power and authority of the office in order to win the title of Speaker. But a weak Speaker leading a fractured caucus is actually dangerous. The Republican House can frustrate Biden’s legislative agenda. It can conduct endless oversight hearings and investigations. It can restrict government spending.

When you look at the demands of the 20 anti-McCarthy holdouts and consider what he conceded to them, the next two years will be fractious. Over the past four days, they made demands in four areas. First, they object to funding Ukraine. They also object to the size of the omnibus spending bill that passed at the end of the last Congress. Third, they don’t want the US debt ceiling extended. Lastly, they want to hold investigations. Many investigations.

Since the bill funding Ukraine and the omnibus spending bill passed with bi-partisan support in both Houses, any action they try to take on those two are likely to fail. But they have the right to investigate anything and everything, so we need to be prepared for that.

The debt ceiling is a problem. There will be bi-partisan support in both Houses for increasing it, but McCarthy will control whether a clean debt ceiling increase ever gets to the House floor for a vote. There will be a bi-partisan group of House members to support that bill, but if McCarthy goes to Democrats for the needed votes to pass a debt ceiling increase, the anti-McCarthy faction will attempt to remove him from the Speaker position.

It’s very possible that McCarthy will be successfully deposed if Democrats aren’t inclined to save him. It was this kind of behavior that convinced John Boehner to retire.

McCarthy almost certainly made concessions about Ukraine and the debt ceiling and government spending in order to win the job. He will either break these promises, or he’ll lead the country to financial ruin. Or the moderates in the House GOP will try to kick him out. The Republicans have a majority but it’s not a functional one. On to cartoons.

McCarthy’s headaches are just beginning:

He’s a weak GOP Speaker, not a Pope:

It’s way past time for the GOP to hit the target:

Last week was deja vu of Jan 6 two years ago:

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Saturday Soother – January 7, 2023

The Daily Escape:

Snow covered kayaks, Lake Sunapee, NH – January 2023 photo by Juergen Roth Photography

Yesterday was two years since the January 6 attack on the US Capitol. And now, some of the same people are holding the House of Representatives hostage like they tried to do in 2021. From the WaPo:

“All but two of the 20 Republican House members who voted against Kevin McCarthy for speaker in Tuesday’s third ballot round are election deniers who embraced former president Donald Trump’s false claims that the 2020 election was rigged…..14 are returning members who voted against certification of the electoral college count on Jan. 6, 2021.”

Then there’s North Carolina GOP Rep. Ralph Norman who urged Trump to declare “Marshall Law,” (sic) just days before the 2021 inauguration. Look at what Norman is saying now:

This should be your primary concern in the power play between the far right Republicans (McCarthy) and the farther right bat-shit Republicans, including Rep. Norman. As Paul Krugman says in the NYT:

“…even with a speaker in place, how likely is it that the people we’ve been watching the past few days will agree to raise the debt ceiling, even if failing to do so creates a huge financial crisis?”

Friday saw the first major breakthrough in the deadlocked voting when on the 12th ballot, a group of previous Republican holdouts flipped their votes to support McCarthy, but it wasn’t enough for him to clinch the gavel. Then on the 13th ballot, McCarthy picked up another vote bringing his total to 214.

From Axios:

“House GOP Leader Kevin McCarthy is on the brink of clinching the speakership after a group of 15 previous Republican holdouts flipped their votes to support the California lawmaker on Friday, marking the first major breakthrough in negotiations this week.”

McCarthy fell only three votes short of the threshold needed since there were lawmaker absences.  That’s 14 new votes for McCarthy, with a maximum of 218 needed to gain the speakership. This is the current state of play, with more ballots to come late on Friday night.

You should note that McCarthy got Ralph Norman’s vote on Friday, after Norman said on Thursday that he would only switch if McCarthy was willing to shut the government down. So, is that what’s in store for us? As JVL says:

“The sad truth is that McCarthy may be about to become the weakest speaker in history. This fight over the speaker’s gavel is exactly what every important vote in the House over the next two years is going to look like: The speaker’s fight is the debt ceiling fight is the budget fight is the Ukraine aid fight.”

Think about the Republican Speakers of the House since Newt Gingrich 30 years ago. Gingrich’s Contract for America has morphed into MAGA fratricide in a decade. It’s been a bit like watching the British royals fracture because Megan and Harry wouldn’t toe the line inside the family.

Recall that the Republicans do not have a lot of experience with House speakers. Before Newt, Joe Martin of MA served two terms (1947-1949; 1953-1955). And since Newt there have been two:

  • John Boehner (2013-2015)
  • Paul Ryan (2015-2019)

Boehner was a mediocrity, but he was a professional legislator. Ryan was speaker during much of Trump’s first term. He’s noted for rewriting the tax code, which helped contribute to our ballooning deficits. McCarthy is inferior to either of these previous GOP speakers, who in their own ways were clear failures.

The Republican Party harbors some very dangerous extremists in their ranks, and McCarthy’s pandering to them is a dangerous game, not only for Democrats, but for all Americans. They don’t want policy; they only want airtime.

From Michelle Goldberg:

“…The movement these characters are part of…isn’t simply ideological. It’s also a set of defiant, paranoid, anti-system attitudes, and a version of politics that prioritizes showboating over legislating. That’s why McCarthy has found himself unable to negotiate with the holdouts.”

It’s looking like McCarthy will manage to eke out the speakership. More from Goldberg:

“It is not possible, however, that he’ll emerge, in any real sense, as a leader. His best-case scenario is that he’d be a fragile figurehead, a hostage…constantly in danger of defenestration.”

We all should know that these self-aggrandizing jokers won’t hesitate for a moment to crash the economy and/or shut down the government just so they can crow about it on Steve Bannon’s podcast.

If they will do this to their own Party, imagine what they will do to the rest of us.

It’s time to take our first break of the New Year from the “All Kevin, all the time” barrage and get to our Saturday Soother. It’s cold and rainy in Connecticut, and so it’s indoor activities this weekend, like maybe taking down some ornaments. Or maybe napping.

To help you get calmer about what a GOP majority in the House might do, grab a chair by a big window and watch and listen to “Capricho Arabe” written in 1888 by Spanish guitarist Francisco Tárrega. He was staying in Valencia, where Muslim, Castilian, and Christian cultures mixed, and you can hear all of those influences in this piece.

Here, British guitarist Alexandra Whittingham plays it in 2017 at the Church of St Pierre in Martignac, France:

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Reform the Supreme Court, Part II

The Daily Escape:

Winter at Bryce Canyon NP, UT – January 2023 photo by Michael Andrew Just

The Supreme Court (SCOTUS) has a legitimacy crisis. Put simply, many people no longer think the Supreme Court can be trusted to uphold Constitutional rights or follow judicial norms. This is the result of the Conservative supermajority, driven by its partisan agenda that is increasingly hostile to precedent and separation of powers.

The Conservative supermajority threatens that it will not observe Constitutional guardrails. As an example, our democracy depends on citizens having a meaningful right to vote. Right now, that’s in jeopardy because the Court has upheld voter suppression laws and has provided for partisan gerrymandering to continue.

Also, the Conservative supermajority has taken away a woman’s control over her body. It has also taken direct aim at the tradition of separation of church and state.

SCOTUS ignores its own internal check of stare decisis by writing sweeping decisions seemingly intended to foreshadow future decisions that could further endanger American liberty as we know it.

So, it’s time to reform the Court by building better checks and balances. The power to make these changes sits primarily with Congress. So if reform is to happen, reformers are going to have to control both Houses of Congress.

Let’s talk about some of the options for reform.

I. Expanding the Court

This means increasing the number of justices. The number of justices isn’t set by the Constitution, so Congress can change it at any time, and has done so seven times. The first Supreme Court had only six justices.

Given that Congress can and has altered the size of the Court, it could do that again. One idea is to add two justices in every presidential term. Alicia Bannon of the Brennan Center for Justice wrote an analysis looking at this idea. Basically, it would mean every president gets to appoint two justices, regardless of how many justices wind up serving on the court.

One potential issue is that SCOTUS could regularly have an even number of justices, which isn’t unprecedented, but it makes the possibility of split decisions more likely. There’s also the possibility that it could make presidential elections even more of a proxy vote for Supreme Court justices.

The challenges are that this change would require 60 votes in the Senate to overcome a filibuster. And since Republicans control the House, it’s unlikely to happen soon.

II. Ending life tenure

The big upside to this proposal is that it is much less dependent on justices either retiring or dying. It could also help slow the increasing push to nominate younger justices who could serve on the court for longer.

Prior to 1970, Supreme Court Justices served an average term of 14.9 years. Post 1970, they’ve served an average term of 26.1 years. But the five most recently appointed Supreme Court Justices to leave the court served an average of 27.5 years.

Today, most countries in the world have limited judicial tenure, either through mandatory retirement ages or fixed terms. In the US, only one state supreme court (RI) allows for life tenure.

Properly implemented, term limits could give each president the opportunity to appoint the same number of Supreme Court justices each term. Thus, reducing partisan gamesmanship around individual confirmations while making the Court more representative.

One suggestion from the American Academy of Arts and Sciences calls for an 18-year term with regular appointments made every two years to replace outgoing justices. This would not only limit life tenure, but it would also guarantee every president a stable number of two appointments, assuring a reliable translation of voters’ political will into the federal judiciary.

III. Limiting the Court’s jurisdiction

Congress can limit the kinds of cases that can be appealed to the Supreme Court. Along with the ability to define the jurisdictions of lower courts, this “jurisdiction stripping” can be used to curtail the power of the Court overall. This also might force certain aspects of the law back to the political branches of government.

This happened recently under the Military Commissions Act of 2006, which tried to strip Guantanamo Bay detainees of the ability to appeal cases in federal courts. This could only become law if passed by both Houses of Congress and signed by the president.

IV. Create a binding code of ethics

The Supreme Court is the least accountable part of our government; it does not even have a binding code of ethics. We should institute a binding code of ethics, including rules to prevent conflicts of interest. We should adopt transparency measures, including live-streaming of oral arguments and decisions.

Of the above, term limits should be enacted, and a code of ethics should be established. Those are realistic goals. When the Constitution was adopted, the average life expectancy was 36 years, not today’s 80 years.

We need to forge a new consensus about SCOTUS. That requires us to do the political work of negotiating and renegotiating what the Court should look like, and how it should operate.

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Reform The Supreme Court

The Daily Escape:

Gold Creek Valley, WA – December 2022 photo by Erwin Buske Photography

“A body of men holding themselves accountable to nobody ought not be trusted by anybody.” – Thomas Paine

Welcome to 2023! It seems like a good time to think again about what’s worth fighting for. Paine valued freedom and despised oppression. In 2023, we could substitute the US Supreme Court (SCOTUS) for Paine’s original targets, which were Britain and King George III.

From Ed Walker: (emphasis by Wrongo)

“In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions…and delaying justice through the shadow docket.”

The Shadow Docket is designed to allow the Court to engage in administrative management of its calendar so that the Justices have sufficient time to rule on emergency applications.

On Dec. 27, we saw an example of the Court’s reactionary majority using the Shadow Docket to extend indefinitely a Trump immigration policy known as Title 42. Trump implemented Title 42 to exclude asylum seekers from the US because they might be carriers of coronavirus.

From Vox’s Ian Millhiser:

“That decision…is typical behavior from the Supreme Court — or, at least, is reflective of this Court’s behavior since a Democrat moved into the White House….It’s the latest example of the Court dragging its feet after a GOP-appointed lower court judge overrides the Biden administration’s policy judgments, often letting that one judge decide the nation’s policy for…an entire year.

And that delay may be the best-case scenario for the Biden administration — and for the general principle that unelected judges aren’t supposed to decide the nation’s border policy. “

Millhiser points out that SCOTUS’ response is very different from when Trump was in office. Back then, the Court frequently raced to reinstate Trump’s policies within days.

The Court’s Conservative Six no longer seem to care about the law or precedent. It’s become a policy-making body in service of Conservative’s religious and social agendas. We should expect It to continue down this path until we reform the Court.

Reform is necessary to protect the legislative prerogatives of Congress, and the prerogatives of the Executive. Oh, and to protect the individual liberties guaranteed by the Constitution.

The NYT’s Adam Liptak says that SCOTUS has been rapidly accumulating power at the expense of every other part of the government. He quotes Mark A. Lemley, a Stanford law professor’s article in The Harvard Law Review:

“The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.”

Non-elected activist judges indeed.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling the people. We know that courts have always lagged behind the consensus of the American People on issues of rights. But before now, change has come, albeit slowly.

That ended with SCOTUS’ decision in Dobbs, where the Conservative Six ruled that women have no right to control their own bodies.

Earlier, they imposed their religious view that coaches are free to dragoon their players into worshiping the God of the coach’s choice, and that religious leaders are free to spread a pandemic, despite public health officials’ warnings.

Neither Congress nor the President have resisted SCOTUS’s power grab. They haven’t even taken the mild step of imposing ethical requirements on the Court. The other two branches have simply watched the Conservative Six operate in their self-declared role of Philosopher Kings. We now have a Supreme Court tinkering with the Separation of Powers, based solely on political and ideological preference.

As if to justify their power without restraint or oversight, Chief Justice John Roberts recently cited the myth of “three separate and co-equal branches of government.” But that isn’t what the Founders and Framers had in mind, and it isn’t what the Constitution says.

In fact, the judiciary was third in line of power and importance in the minds of the Framers of the Constitution. Article III clearly puts the Supreme Court under the control of Congress. Section 2 is unambiguous:

“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

The founders felt the judiciary was not co-equal. In Federalist 51, James Madison proclaims:

“[I]n republican government the legislative authority, necessarily, predominates.”

In Federalist 78, Alexander Hamilton writes:

“[T]he judiciary is beyond compare the weakest of the three departments of power.”

It’s important to remember that the power to overturn laws passed by Congress and signed by the President was not granted by the Constitution: it was taken by the Court onto itself in 1803 in the case Marbury v Madison.

Soon SCOTUS will rule in Moore v Harper. Moore hinges on a legal proposition known as the “independent state legislature theory.” The theory says that, when it comes to making state laws that apply to federal elections — from drawing congressional district lines, to determining the who-what-when-where of casting a ballot — only the state legislature itself has the power to set the rules.

Moore is an opportunity for the court to reject radicalism, but SCOTUS may upend our democracy with their decision.

SCOTUS has legalized bribery of politicians (Citizens United) and ignored potentially seditious behavior by its own members and their families. Not to mention exceeding its Constitutional authority by inserting itself into political issues, now with startling regularity.

It’s time to reign in the Supremes before they reign over us.

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Reasons For Optimism In 2023

The Daily Escape:

Spirit Lake, viewed from Mt. Spokane, ID – December 2022 photo by James Richman Photography

Wrongo has served you many big plates of gloom in 2022, and he has plenty more cooking on the stove. But, maybe there’s a reason to be a little optimistic about 2023?

Let’s take a few minutes to offer reasons why 2022 wasn’t as bad as it could have been, and why the coming year has a shot at being even better.

First, the Russians failed to win their war in Europe. And you ought to think that the Ukraine war is really a war against Europe, not just a land grab in Ukraine. Second, in the US, most of the authoritarian and anti-democratic candidates promoted by the Republican Party failed to gain a bigger toehold.

Both of these could easily have gone another way, as was nearly universally predicted by our so-called know-betters. But through the efforts of many government leaders and America’s regular citizens, they didn’t. But don’t underestimate just how close to real disaster we came in 2022.

In 2022, the West, at great cost, chose to help Ukraine defend itself. And in America, enough voters came out to help protect our democracy. Turnout in the midterms was reasonably high, especially among young voters. And despite the voter suppression laws passed in Georgia and Texas, voters got to the polls. Most losers acknowledged they had lost, just like in a functional democracy.

In fact, with last week’s passage of the Electoral Count Reform Act, the American system is enabled to create resilience, even if it doesn’t feel that way right now. Congress, with some semblance of bipartisanship, also passed a budget at the last minute.

Meanwhile despite our worst fears, the DOJ gained convictions against many Jan. 6 coup plotters and seditionists. A group of Oath Keepers is facing prison time. And the ringleaders of the plot to kidnap Michigan’s governor also got long prison sentences. Add to all of this Trump’s legal difficulties, which bring a high probability of him facing a criminal conviction, and there’s some reason for optimism in 2023.

And there is certainly more to come from DOJ Special Counsel Jack Smith, Wrongo’s pick for 2023 person of the year.

Even with some optimism there are a few things that could go horribly wrong in 2023.

  • Russia’s war in Ukraine is nowhere near over. The war is currently at a military stalemate, but the Ukrainian people are suffering terribly. Despite recent losses on the battlefield, Russia has a formidable army, and they might outlast the West’s commitment to Ukraine. That will bring a temporary peace to Europe, but it would be a huge strategic mistake to stand aside and let the Russians win.
  • The political crisis in the US isn’t over. We know that the Republican Party’s elected members of Congress still represent the main source of threats to the Constitution. With control of the House, they will pursue an anti-democratic agenda. Wrongo worries that when the Debt Limit needs to be increased this spring, the Republican-controlled House will refuse to be a part of that effort.

Anyone who predicted last year that 2022 would have been this successful would have been called a Pollyanna. The twin challenges for 2023, including the preservation of US democracy and the restoration of global peace, aren’t new. We’ve been facing them for several years if not decades. And we’re still here working on them.

Here are a few Wrong wishes for the new year:

  1. An end to the war in Ukraine with a Ukrainian victory.
  2. Continued good health for President Biden.
  3. No deep 2023 recession. Let’s hope the economy defies history and remains strong.
  4. A resolution to America’s immigration crisis. Let’s hope Congress can find a bipartisan solution that respects the dignity of migrants and establishes an efficient, workable immigration process.
  5. Further relief from Covid. Fewer people are dying, but the virus can mutate very quickly, and that threatens all of us still.
  6. Is a more centrist Supreme Court too much to ask for?

Finally can we have a rational House of Representatives?  We need political stability. Wrongo knows that delivering on this wish is an extremely heavy lift.

As we enter the new year, as Kasey Kasim used to say:

“keep your feet on the ground, but keep reaching for the stars”.

Will things turn suddenly worse in 2023? Will inflation continue to hurt Americans? Will the stock market collapse in the face of recession? Will political turmoil continue? Perhaps. But if 2022 is a gauge, it’s far more likely that we will muddle through, with our politics marking time while both Parties position for 2024. And our economy will continue to grow, albeit very slowly.

Let’s try to keep things in context, and not be distracted by the many things that could go wrong. Let’s also recognize those things that go right. Happy New Year!

Now listen to Diana Krall in 2005 asking, “What Are You Doing New Year’s Eve?”:

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Saturday Soother – December 24, 2022

The Daily Escape:

Santas on the Grand Canal in Venice 2017 photo via WSJ

(This column is late coming to you since the big storm left the Mansion of Wrong with no internet for two days, due to a large tree falling across our road. The high winds prevented crews from working to remove it for 24 hours. It also may be Wrongo’s last column until Jan. 4th.)

The New Year will continue to bring us the chaos that we’ve sadly become accustomed to. The 118th Congress and its Republican House majority will again test America’s norms. The 2024 presidential election is going to bring an extra silly season of political news, so take a real break if you can.

One thought for year end is to set out a framework for thinking about America’s commitment to Ukraine.

We know that a significant number of Republicans and some Democrats want to pull the plug on our support for Ukraine in its war with Russia. For now, the majority think it should remain a “whatever it takes, for as long as it takes” situation. Implicit in the second viewpoint is that American soldiers are never going to be combatants in Ukraine, and that we’re not talking about another 20-year war like in Afghanistan.

A few things to think about. Do we have a choice to support Ukraine, or is supporting them a necessity? We have talked about the difference between “wars of choice” and “wars of necessity” throughout Wrongo’s adult life. Two of our worst military experiences were in wars of choice: Vietnam and Afghanistan. We didn’t have to intervene in either, but our political leaders decided that America’s national security had a true connection to both conflicts. The clear wars of necessity for America were the US Civil War, and the two World Wars. All threated the existence of the US homeland.

Somewhere in between wars of choice and necessity is Ukraine. It isn’t an ally where we are obligated by a treaty, like we have with Europe via NATO. We are obligated to defend any NATO member who is attacked. For example, that would mean a war against Latvia is a war against the US.

We spent 20+ years fighting in Afghanistan. Given what we learned there, would America ever spend a minute fighting for Latvia? When Trump was president he flirted with saying we wouldn’t immediately commit to defending just any NATO country, and he wasn’t alone in that thinking.

That means we could consider choosing not to defend NATO at all, or not to defend individual NATO countries.

We’re facing Cold War II with China and Russia. Our new Omnibus budget allocates 10% more money to national defense than last year, largely because of the possibility of fighting both countries at great distances from home. The budget implies that our national security is threated by both of them.

Russia’s invasion of Ukraine could become a generation-long rolling war between Russia and the small NATO countries that border either Russia or Belarus, if Ukraine loses. Would America then rally and support NATO? Where would we draw the red line? Support for Germany but not for Poland? Ok, we’ll support Poland, but not Latvia?

We need to think through our priorities. We fought in Afghanistan because we believed fighting a far enemy (al-Qaeda) was better than waiting and fighting them as a near enemy. That is also the basis of why we created and remain a member of NATO: Fighting Russia over there was smarter than fighting it nearby, like in Cuba.

Neither China nor Russia are presently our near enemies. If China invades Taiwan, direct involvement by the US would be another war of choice with a far enemy. Ukraine represents a war of choice with a different far enemy, but one in very close proximity to our treaty partners, an enemy that could cross NATO’s trip wire at any time.

Our history suggests that the American people will agree to wage wars of choice if they are relatively cheap and short in duration. What we call a cheap war is mostly a partisan political question. But talking about the cost of a war of choice is a proxy for how Americans value the country that we’re intent on supporting.

Ukraine is a proxy war of choice. We have very few people on the ground and none in a direct combat role. The twin goals are to preserve Ukrainian independence and to bleed Russia of its conventional military capability. Americans need to consider the following implications for national security:

  • Since our resources are limited, should we choose between containing Russia or containing China?
  • What is the goal of containing either or both?
  • How important are the small NATO counties to our national security?
  • If Ukraine loses its fight with Russia, would our national security be weakened?
  • If yes, can we live with that, or should we be doing more now?

On to a Saturday that’s also Christmas Eve! Forget tree-trimming and the last-minute Amazon shopping for a few minutes. It’s time to unplug and land on a small oasis of soothing in the midst of all of the chaos.

Gaze out at the last few leaves on the trees, and listen to the late Greg Lake, of Emerson, Lake, and Palmer, perform 1985’s “I Believe in Father Christmas”. Although most people think of it as a Christmas song, Lake wrote the song to protest the commercialization of Christmas. Here Lake, along with Jethro Tull’s Ian Anderson on flute perform it live at St. Bride’s Church, in the City of London along with the church’s choir:

The last line of the song says: “The Christmas you deserve is the Christmas you get.”

That might be considered harsh in some circumstances, but it might also be true. Anyway, Merry Christmas, Happy Festivus, Happy Chanukah, Happy Kwanzaa, and Happy New Year to all. Let’s hope the deep divisions in our country can be somehow healed by a seasonal miracle.

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