Category: History

Should the Filibuster Die?

The Daily Escape:

Inspiration Point, late winter, Bryce Canyon, NP UT – March 2021 photo by CampsG

Biden’s pandemic relief plan became law, and the Senate confirmed Merrick Garland as attorney general. Those, and a few more cabinet level confirmations are all that’s likely to pass the Senate before the 2022 mid-terms.

That’s because the American Relief Plan, along with cabinet confirmations, and Supreme Court justices are no longer subject to the filibuster, while most other bills are.

Back in the dim past, when Sen. Harry Reid (D-NV) was Majority Leader, Obama could not get his federal judge nominees an up or down vote because they were blocked by the 60-vote requirement to close debate (“cloture”) in the Senate.

In November 2013, Reid and Senate Democrats used the “nuclear option” to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments. In April 2017, Mitch McConnell and Senate Republicans extended the nuclear option to Supreme Court nominations to end debate on the nomination of Neil Gorsuch, when McConnell couldn’t get the required 60 votes for ending the debate.

Today, the three-fifths majority vote (60 of 100) is still required to end debates on legislation. That means we most likely won’t see HR-1 (S-1 in the Senate) the bill to reform voting rights in America make it to an up or down vote in the Senate, as long as there is a filibuster.

That’s probably also true for the minimum wage, for Biden’s infrastructure initiative, and other wish-list items like DC statehood, a carbon tax, and reasonable gun legislation.

The best argument for keeping the filibuster is that it keeps the Party in the minority from being steamrollered by the Party in the majority, what pundits call the “tyranny of the majority”. Both Parties should take stock of everything they were able to delay or derail because of the filibuster. Then they should imagine all of that (and more) enacted by simple majority vote, when the opposition Party regains control of Congress and the presidency, which eventually will happen.

The worst argument is that it fosters compromise. But we know that the Senate is substantially more partisan today than it has ever been in the modern era. In fact, we’ve seen limited compromise on legislation, unless there was no way around it, such as when needing to extend the federal borrowing limit.

The Democrats haven’t been shy about using the filibuster. When Sen. Chuck Schumer (D-NY) was minority leader, he used the filibuster in 2019 to block funding for construction of Trump’s border wall. Dems used it twice to impede passage of the Cares Act, forcing Republicans to agree to changes including a $600 weekly federal unemployment supplement. They used it to block legislation to force “sanctuary cities” to cooperate with federal officials, and to stop a prohibition on taxpayer funding of abortion. And a few other times while Trump was President.

So, should the filibuster go? It should, at least in its current form. Several proposals to change the filibuster are out there. From the NYT:

“One proposal would bar its use for legislation involving voting rights or other democratic expansions. Another would require the old-fashioned “talking” filibuster. A third would entail holding a series of cloture votes spaced three days apart, lowering the number of senators needed to end the filibuster each time.”

The Democrats do not currently have the votes to end the filibuster, since Sens. Manchin (D-WVA) and Sinema (D-AZ) say they will not vote to abolish it. We’ll have to wait to see whether they back McConnell against Schumer and Biden when the Republicans launch a filibuster against the major Biden initiative that requires 60 votes for cloture. Or, if they’re open to one of the reforms mentioned above.

Wrongo favors eliminating the filibuster at least for bills that concern voting rights. That would allow the H-1/S-1 bill to move forward at a time when Jim Crow-style laws are likely to be re-introduced in many Republican-controlled states. The Republican falsehoods surrounding the 2020 election, culminating in insurrection, should convince Democrats that HR-1/S-1 is worth passing, even if the price is eliminating, or partially eliminating the filibuster.

Manchin and Sinema can probably be strong-armed into agreeing with that.

In 2017, a Republican-controlled Senate found it easy to forget tradition and eliminate the filibuster for the confirmation of Supreme Court justices, despite that being the key instance where the requirement for a broad, bipartisan vote should be obvious.

So, why should it be such a problem to remove it entirely? The framers of the Constitution didn’t include a supermajority requirement for the Senate to pass legislation; that came into being in 1837. It has been modified many times since.

Now, it’s long overdue for the filibuster to go. It’s the biggest roadblock to democracy in America.

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We’re Riding on a Slow-Moving Train Wreck

The Daily Escape:

El Matador State Park, Malibu CA – 2021 photo by stephencovar

It’s commonly accepted knowledge that it’s hard to look away from a slow-motion train wreck. We should note that it’s even harder when you are riding on the train. And it’s harder still when some of the people riding along with you would be totally happy to see it wrecked.

Let’s start by revisiting CPAC and Trump. He attacked the Supreme Court for not overturning an American election, and his supporters cheered. We can’t let ourselves forget how wrong that was, and if unchecked, its implications for the future.

Second, the Catholic Archdiocese of New Orleans has decided that Catholics may take the Pfizer and Moderna coronavirus vaccines, but not the new Johnson & Johnson vaccine. They say the J&J shot is “morally compromised”, since it was developed using cloned cells derived from fetuses aborted nearly a half a century ago.

New York Magazine’s Ed Kilgore writes:

“It’s worth noting that another Catholic diocese not far away, in Tyler, Texas, has rejected all three vaccines as having been “produced immorally”….But….the Vatican itself is administering the Pfizer vaccine (with Pope Francis and his predecessor, Pope Benedict XVI, among its recipients).”

The faithful in New Orleans and Tyler, TX must decide whether they must be more Catholic than the Pope. Anybody else wonder how America can get the pandemic behind us when religious leaders won’t follow science?

Third, as Bill Kristol notes at the Bulwark, our democracy is in crisis. For the first time in our history, we failed to have a peaceful transfer of power, and Republicans want to ensure that fewer people can vote next time around. They’re supporting many new voting restrictions at the state level.

The Brennan Center has identified 253 bills to restrict voting rights in 43 states that would impose measures to make voting harder. They include reducing early voting, limiting the use of mail-in ballots, eliminating drop boxes, and imposing new voter ID requirements.

This is crucial to our democracy, since Democrats only control 15 states, none of which is a swing state like Arizona, Georgia, Michigan, North Carolina, Pennsylvania or Wisconsin. Republicans have compounded the Dem’s problems through aggressive gerrymandering in Michigan, North Carolina, and Wisconsin.

It’s difficult to understand how in a democracy, there is any discussion of restricting the right to vote. Unless we protect this right, we’re heading down a slippery slope. So to help avoid this slow-motion train wreck, Democrats need to get as many people registered as possible right now.

Finally, secession is on the map again, exactly where you might have expected it to be. Bright Line Watch, in a study released in February, showed that one-third of Republicans said they support secession. And it gets worse: Half of Republicans across the former Confederacy (plus Kentucky and Oklahoma) are now willing to form a newly independent country. Here is Bright Line Watch’s map of secessionist support by Trump approval ratings:

The Texas Republican Party recently supported a referendum on Texas seceding from the union. While secessionist rhetoric is couched in claims about fiscal responsibility and burdensome federal regulations, it doesn’t take much to see ethno-nationalism lurking behind it.

Secession in Texas is a combination of nativism, xenophobia, and white grievance. Texas secession Facebook pages are saturated with fantasies of forcing Democrats to leave the state and seizing their property. Just like the Confederates of the 1860s, this modern secessionist push is rooted in large part in maintaining white supremacy and authoritarian governance.

The increasing marriage of secessionist chatter and GOP ideology should be cause for concern since it is widespread throughout the heartland of America. Of course, state-level secession is illegal in the US. Even Justice Scalia said:

“If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”

America has argued about secession since the days of John C. Calhoun, who worked to protect the south’s commitment to slavery from the 1820s until his death in 1850. Trump’s efforts to overturn an election in which Black voters did so much to defeat him in the south, recalls Calhoun’s efforts to deny them citizenship and the franchise almost two centuries ago.

We’re living in a moment when we will see whether American democracy survives these attacks on it by Republicans.

The ability to vote is central to our Democracy. It is at the core of our belief system and without it, all else is meaningless.

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Saturday Soother – February 27, 2021

The Daily Escape:

Boulder Beach, Acadia NP February 2021 photo via Scenes of Maine Photography

It’s Saturday, so we have a lightning round of news you can use. First, the Daily Beast reports:

“A pickup truck parked at the US Capitol and bearing a Three Percenter militia sticker on the day of the Jan. 6 riot belongs to the husband of freshman Rep. Mary Miller of Illinois, who approvingly quoted Adolf Hitler a day earlier,”

The Three Percenters are a para-military group who wish to overthrow the US government. And before you ask, yes, Rep. Miller is a new Republican Congresscritter, who spoke at a pre-coup “Moms for America” rally in front of the Capitol the day before the riot. She said:

“Hitler was right on one thing: whoever has the youth has the future…”

This is Republicanism today. She later apologized for the remarks. Sure.

Second, a new poll on Covid vaccine skepticism shows that since last fall, it has come way down for Blacks and Hispanics. Skepticism remains high among white Republicans. Nearly 60% of White Republicans will either not take the vaccine or are unsure:

Source: Civiqs

One of the great challenges during the pandemic has been establishing public trust, particularly among racial minorities who have a long history of both exploitation and neglect by the medical establishment and the government.

The good news is that vaccine skepticism is falling substantially over the past few months. It now appears that the only barrier to achieving herd immunity is White Republicans.

Their skepticism about government involvement in health is part of a long trend among Republicans. In the 1960s, Reagan was against Medicare, and called any expansion “socialized medicine”. He refused to acknowledge the AIDS crisis. In the 1990s, Newt Gingrich blocked Clinton’s health care plan, although he was in favor of a similar program that was adopted by Mitt Romney as Governor of Massachusetts.

The Romney plan was the template for Obamacare, which all Republicans opposed, including Newt Gingrich, who was for it before he was against it.

It isn’t just ideological resistance, it’s a bone-deep antipathy to any collective attempt to have high quality public health in America. Their antipathy toward health is beyond ideology, it’s pathology.

Finally, a few words about just how old and out of touch members of Congress have become. Demo Memo, a site Wrongo highly recommends, posted about the demographics of Congress. The bottom line is that the Baby-Boom generation dominates both the House of Representatives and the Senate.

“According to an analysis of the 117th Congress by Pew Research Center, Boomers account for a 53% percent majority of the House and for an even larger 68% percent of the Senate…”

House: number (and percent) of members of the 117th Congress by generation

Millennials: 31 (7%)

Gen Xers: 144 (33%)

Boomers: 230 (53%)

Silent: 27 (6%)

Senate: number (and percent) of members of the 117th Congress by generation

Millennials: 1 (1%)

Gen Xers: 20 (20%)

Boomers: 68 (68%)

Silent: 11 (11%)

The ages of the 117th Congress range from 25.5 years to 87.7 years. The median age of the House is 58.9. The median age of the Senate is 64.8. That may explain why Sen. John Thune (R-SD), can reminisce about working for $6/hour in a restaurant in 1978, as part of his objection to a $15/hr. wage.

A $6/hr. wage in 1978, adjusted for inflation, would equal $24.07/hr. in 2021. A person making $24.07 an hour, working 40 hours a week and 52 weeks a year would earn over $50,000 a year before taxes. And a person working the same hours and earning the proposed wage of $15/hr. would earn just over $31,200 a year before taxes.

A person working the same hours and earning the current national minimum wage of $7.25/hr. earns just over $15,080 a year, before taxes today.

Time to let go of the DC merry-go-round for a few minutes and enjoy a brief Saturday Soother. It’s going to rain in Connecticut today, helping to melt some of the snow remaining on the ground. So, settle back and watch this stunning video from “Playing for Change” who we’ve featured a few times in the past. Here, Peter Gabriel is singing his song “Biko”, that he wrote and performed in 1980.

It’s a tribute to the South African anti-apartheid activist Steve Biko, who died while in police custody. More than 25 musicians from seven countries join Gabriel for this global rendition, including Beninese vocalist AngĂ©lique Kidjo, Silkroad’s Yo-Yo Ma, and bass legend Meshell Ndegeocello:

Lyric:

You can blow out a candle, but you can’t blow out a fire. Once the flames begin to catch, the wind will blow it higher.

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Saturday Soother – Graham’s Stalling on Garland Edition, February 6, 2020

The Daily Escape:

Quail Mountain, Joshua Tree NP -2020 photo by sandinthehourglass

“When someone shows you who they are, believe them the first time.” – Maya Angelou

Are you wondering about why Merrick Garland hasn’t been confirmed as Attorney General? It’s because Sen. Lindsey Graham (R-SC) had refused to hold a confirmation hearing for Judge Garland. He blamed the Senate’s second Trump impeachment trial that starts next week.

Graham had the power to keep the Garland hearing off the calendar because he remained chair of the Senate’s Judiciary Committee until the new Senate organizing resolution was passed last Wednesday. While he ran the committee, Graham denied a request from the incoming committee chairman Sen. Dick Durbin (D-IL) to hold hearings for Garland starting on Monday, February 8. The impeachment trial starts on the 9th.

Graham insisted that the Senate’s plan to begin Trump’s impeachment trial on Tuesday meant that there would not be enough time to hold Garland’s hearing. Graham said to Durbin:

“Your request is highly unusual….the Senate is about to conduct its first ever impeachment trial of a former president, and only its fourth trial of a president, incumbent or not…But you want us to rush through Judge Garland’s hearing on February 8….An impeachment is no small thing. It requires the Senate’s complete focus,”

Of course, Graham isn’t clean on this. The new AG will be responsible for overseeing any prosecutions that come out of the attempt to overturn the election, and the Senate Judiciary Committee includes three Republican Senators involved in that attempt. Graham was accused by Georgia Secretary of State Brad Raffensperger of asking Raffensperger to alter the state’s vote count back in November. Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) both challenged the counting of Electoral Votes.

Marcy Wheeler reports that one of the last things Graham did before turning over the reins was to send a letter to Trump’s Acting AG Monty Wilkinson urging him not to stop work on two investigations:

“We have two properly predicated, ongoing investigations Democrats would rather go away: Special Counsel John Durham’s investigation of the Crossfire Hurricane investigation and the investigation by the Delaware U.S. Attorney’s Office into Hunter Biden….I…respectfully request that you refrain from interfering in any way with either investigation while the Senate processes the nomination of Judge Merrick Garland to the position of Attorney General….”

Graham raises this even though there hasn’t been a peep about these investigations from the Biden Administration. Instead, this may only be relevant because Hunter Biden has a book deal. It’s apparently about his problems with addiction, and comes out in April.

It’s hard to see this as anything except more of an effort by Trumpy Republicans to continue the conspiracy theories Trump waved around in the weeks leading up to the presidential election. In spite of bipartisan support for Garland, Graham’s delaying tactics mean that the DOJ may not have a confirmed Attorney General until late February or early March. Garland is a centrist, the kind of AG you would expect Republicans would welcome as a Democratic nominee. Instead, Republican Senators have sought to prevent or delay his appointments many times.

We all remember how they wouldn’t consider Obama’s nomination of Garland to the Supreme Court because it was 11 months before a newly elected administration would take office.

Few remember that, in September, 1995 when Joe Biden chaired the Judiciary Committee, Garland was nominated to the US Circuit Court of Appeals. But then-minority leader Bob Dole (R-KS) filibustered the nomination. No vote was taken.

In 1997, Clinton renominated Garland, and the Judiciary Committee, then led by Orrin Hatch (R-UT), recommended confirmation, and the Senate, then led by majority leader Bob Dole, confirmed him to the Appeals Court. But, Mitch McConnell was one of 23 “no” votes against Garland.

What is it with Republicans and Merrick Garland?

Time to forget about politics. Here in Connecticut, we’re still digging out from about 18″ of snow that is finally starting to melt. It’s Saturday, and we need to make it to tomorrow, when America will huddle in front of our TVs and worship a bowl of guacamole: Brady, or Mahomes?

To help you get through until then, let’s start by brewing up a cup of Panama Hacienda La Esmeralda Gesha coffee ($56.00/8 ounces), from the brewers at Chicago’s Big Shoulders Coffee. It is said to be sweet-tart with a very full, syrupy mouthfeel, and a flavor-saturated finish resonates on and on. YMMV.

Now, settle back in a chair by a window and watch Mumford & Sons play their cover of the Nine Inch Nails tune, “Hurt”, performed live at the 2019 Rock Werchter Festival. This song was covered most notably by Johnny Cash just before his death:

Marcus Mumford’s voice can heal just about anything. It’s needed in this time of global grief.

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Trump’s Subversive Ploy

The Daily Escape:

Sunrise, Mauna Kea, HI – 2020 photo by laramarie27

When the joint session of Congress begins on Wednesday at 1 pm, all eyes will be on VP Mike Pence. He has a ceremonial role with just three duties: Open the states’ envelopes, hand them to tellers to count, and announce the winners.

  • Article 2 of the Constitution dictates that the president of the Senate, (Mike Pence) shall open the envelopes that contain the electors’ votes and the certifications from every state. Then it says that the votes shall be counted, but it doesn’t specify how. So Congress remedied that with:
  • The Electoral Count Act of 1887 along with subsequent statutes are designed to minimize the role of Congress in election disputes, giving that responsibility clearly to the states. The Act specifies the procedures states should follow to resolve disputes, how they should certify the results, and the fact that each state’s governor should send those certified results to Congress.

If those procedures are followed, then those certified electoral votes will be counted. But in Trumpland, things are always different.

At the joint session, as Pence opens each state’s envelope (in alphabetical order), he hands it to four tellers— two chosen by the Senate, two by the House— who then count the electoral votes inside and keep a running tally. The objections in writing to a particular state’s electoral votes by a member of the House and a member of the Senate must happen prior to beginning the counting process for the next state.

Sen Ted Cruz (R-TX) announced that he’s going to object to Arizona’s votes. Arizona is third in alphabetical order, but no Republican will object to the votes from Alabama or Alaska since Trump won both states. Expect a few Republican House back-benchers to join Cruz.

There will likely be objections to the votes from Arizona, Georgia, and Pennsylvania, and maybe more. The Representatives and Senators will then retreat to their respective Houses, debate the objection for up to two hours, then vote on it. And this will happen for each state that Trump is trying to overturn the electoral vote results.

At the conclusion of this kabuki play, we will get a definitive count of Republicans who are happy to undermine democracy on the basis of lies, conspiracy theories, and grifting. This should be the easiest vote of their careers: simply doing their Constitutional duty. But, as Michael Gerson says:

“They not only help a liar; they become liars. They not only empower conspiracy theories; they join a conspiracy against American democracy. They not only excuse institutional arson; they set fire to the Constitution and dance around the flame…..they are no longer just allies of a subversive; they become instruments of subversion.”

Settle in for at least a day (possibly two) of tediousness.

If there were no objections, then after the tellers counted all the electoral votes, they would hand the results to Pence, who would then be required to announce the names of the winning president and vice president. In this case, Joe Biden and Kamala Harris.

But on Wednesday January 6, 2021, roughly half of all the elected Republicans in the federal government will vote to overthrow America’s democratic system. Republicans have not only decided Democratic victories are illegitimate, this is now their playbook for prosecuting their case.

They have been getting progressively and more conspiratorial and transparently undemocratic. Their behavior in these final days of the 2020 election cycle shows that there is no limit to how far they can go.  So they will go farther. They always do.

They’ve decided it’s to their advantage to blow up our democratic system and assert that no election is valid unless they win it. That’s where we are today. Sadly, it’s also likely where we’ll be in Georgia Tuesday night after the polls close, and before the final tallies are in.

Objections have happened before. It’s not a big deal, but it becomes a big deal when one Party turns the vote certification process into enough of a circus that people believe the election was stolen.

Unfortunately, that ship has sailed.

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Dylan Sells His Music

The Daily Escape:

Eagle, Kent CT – December 8,  2020 photo by JH Clery

Today, let’s talk about something radically different. Bob Dylan has cashed out of 60+ years of his music by selling his publishing rights to the Universal Music Group. It’s reported that Dylan will receive from $300-$400 million. In return, UMG will get all the future income from his music. Whenever a record is sold, the money that once went to Dylan will now go to UMG. Same for the royalties from air play of his songs.

UMG will get to decide who can license Dylan’s tunes. If someday soon you hear “Just Like a Woman” in an ad for perfume, UMG will have made the decision to do it. They’ll also get whatever money that the cosmetic company agreed to pay to use the song.

The selling of publishing rights is nothing new. In recent years, Blondie and Barry Manilow sold theirs, along with the estates of Kurt Cobain and John Lennon. A London-based publishing company has spent more than $1 billion for the rights to the songs of Rhianna, Beyoncé and Justin Timberlake. Last week, Stevie Nicks sold her catalogue for around $100 million.

Dylan’s music has meant a great deal to Wrongo since the early sixties. You know that some are going to call Dylan a sell-out. They’ll say that, as a prime representative of the sixties counter-culture, Dylan should be held to a higher standard; but that’s nonsense!

A note about Wrongo’s favorite Dylan album, 1965’s “Bringing It All Back Home”. It includes “Maggie’s Farm“, “She Belongs to Me“, and “Mr. Tambourine Man”. And it contains one of Dylan’s masterpieces, “It’s Alright, Ma (I’m Only Bleeding“. This played constantly in Wrongo’s dorm room that year.

The reason “It’s Alright Ma” is so great, is that it’s a message about the culture of the sixties and the counterculture. Listeners were affected by the song, people started to question authority. We’re not talking about cheesy conspiracy theories like today, but what was at that point, the bedrock of our nation. Sadly, NOTHING’S CHANGED since he wrote this:

(Verse 6)

“While preachers preach of evil fates

Teachers teach that knowledge waits

Can lead to hundred-dollar plates

Goodness hides behind its gates

But even the President of the United States

Sometimes must have to stand naked”

(Verse 10)

“For them that must obey authority

That they do not respect in any degree

Who despise their jobs, their destinies

Speak jealously of them that are free

Do what they do just to be

Nothing more than something they invest in”

Will you think for yourself, or not? That was the question in the sixties, and many young people ended up on Dylan’s side.

(Verse 14)

“While them that defend what they cannot see

With a killer’s pride, security

It blows their minds most bitterly

For them that think death’s honesty

Won’t fall upon them naturally

Life sometimes must get lonely”

 All of the politicians and the business executives are powerful until they aren’t.

(Chorus)

“Although the masters make the rules

For the wise men and the fools

I got nothing, Ma, to live up to”

In the 1960’s we didn’t buy in, instead, we rejected the system. Today, the opposite is true.

1975’s “Blood on the Tracks” is Wrongo’s second favorite, with “Tangled up in Blue”, “Idiot Wind”, “Simple Twist of Fate”, and “Lily, Rosemary and the Jack of Hearts” as standouts.

Of course, there are many, many great Dylan songs. 1963’s “Blowin’ in the Wind” and “Don’t Think Twice, It’s All Right“. 1964’s “The Times They Are a-Changin“. Dylan’s other 1964 album, “Another Side,” has “It Ain’t Me Babe“. 1965’s “Highway 61 Revisited” had “Like a Rolling Stone“, which was a radio hit in 1965. That was revolutionary, because the song was six minutes long and he didn’t have a traditional radio-friendly voice.

And this year, he released “Murder Most Foul.” A 17- minute stream of consciousness about the Kennedy assassination.

This isn’t the first time he’s monetized his music beyond concerts and the airwaves. His songs have been used in commercials selling products for Google, Apple, Pepsi, Victoria’s Secret and IBM.

It’s his music, and it’s his decision on how it’s used…at least it was until the sale. We live in desperate financial times. If selling their music is what artists need to do to survive, so be it.

It’s 2020 and the times, they are a-changin’.

You can listen to “It’s Alright Ma” here.

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Could Trump Be Attempting a Coup?

The Daily Escape:

Yosemite changing from fall to winter – November 2020 photo by kscwuzhere

Here’s another way of looking at the election: Joe Biden’s share of the popular vote is now 50.8% (77,126,066 popular votes). That will be greater than Ronald Reagan’s 50.7% vote share in 1980, vs. Jimmy Carter. It’s more than GW Bush’s margin over Kerry (50.7%), and more than Bush’s margin over Gore (47.9%). It’s larger than both of Clinton’s races: (49.2%) over Dole, and (43%) over GHW Bush.

Yet, the official position of the Republican Party, as put forth by the RNC Chair Ronna McDaniel, is that Joe Biden and the Democrats stole the election:

“On Tuesday…McDaniel….told FOX News commentator Sean Hannity that she has 234 pages containing 500 sworn affidavits alleging 11,000 incidents of various types of voter fraud…..It’s been rigged from the beginning…and now you have a media that’s rigging it again by saying we’re not going to even listen to these stories.”

Republicans have been making excuses that Democratic presidents haven’t been legitimate leaders since FDR. Kennedy only won because of dead Chicago voters. Johnson only won because of sorrow about Kennedy. Carter only won because Nixon was framed. Clinton only won because Perot messed things up. And how did Obama win? TWICE??

The GOP believes that it has been the rightful winners of every presidential election since Eisenhower. The natural order requires that they win. Actual vote counts are irrelevant.

The most likely outcome of the next two months is that Joe Biden will be sworn in as president in an orderly way, but there’s a chance it could go differently. Here’s a thought from Jared Yates Sexton: (emphasis by Wrongo)

“People keep asking whether Trump and the Republicans attempt to steal the election is legitimate, if it’s a coup, if it’s a fundraising scheme, if it’s posturing, if it’s actually all that dangerous.

The answer is yes. All of these things….

People like McConnell and Graham are giving voice to Trump for multiple reasons….they need to win the special elections in GA, the controversy creates passion, and it leads to fundraising. But…they’re also fine with a coup.…

Trump and the GOP are playing a dangerous game. The coup might not work, but they see an advantage at flirting with a coup. The coup might work and they see an advantage with grasping power for themselves. It’s a win-win for them while we lose.”

Sexton’s most disturbing point, that Establishment Republicans probably don’t think the coup will work, but they seem to be 100% OK with it, if it does. 

Republicans believe that Democrats have no legitimate claim to govern, because Democrats only win elections when the wrong people vote for them, as opposed to Real Americans, who vote GOP.

The only question the press should be asking Republican officials is: “Are you on board with Trump’s coup?” The GOP really doesn’t want to answer questions about their actions, and won’t, even when asked. Charlie Pierce says this:

“So the president, the leaders of the Republican majorities in Congress, and the Secretary of State all are attached to the fantasy that Joe Biden is not the President-Elect….They are taking active measures in support of that fantasy, and the longer they do, the more real it becomes to the president’s 70 million followers. And, therefore, the more political power it gains, and the more poison is pumped into the political bloodstream of the country…”

This week, Trump replaced the head of the military, who had previously said that he was concerned about the use of troops against civilian populations. Then he replaced a number of senior military officials with known loyalists who have zero qualifications for their jobs.

People seem to believe that the (relatively) independent directors of the CIA (Gina Haspel) and FBI (Christopher Wray) are going to be replaced, soon.

If all of that happens, what is the innocent explanation for all of these moves? Pundits have said there may be simple explanations for them, but there’s a non-trivial chance that Trump is attempting to assert control over key parts of the government in advance of a destabilizing action to remain in power.

For decades, we thought that norms of behavior would prevent something like this from happening. Our respect for institutions, love of country, institutional guardrails, and separation of powers would prevail. But, those things only work as long as both sides informally agree to act like rules have meaning.

From the moment Trump declared his candidacy, he’s crossed those lines, over and over again. Even if he goes away or drops dead tomorrow, these lessons can’t be unlearned, no matter how badly Dems want to pretend things can go back to the way they were.

Because the GOP certainly isn’t forgetting any of it.

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Associate Supreme Court Justice Amy Barrett

The Daily Escape:

Cape Cod pond  with red shack – October 2020 by Michael Blanchette Photography

Amy Coney Barrett is now a Supreme Court Associate Justice.

It is the first time in 151 years (since Edwin Stanton in 1869) that a justice was confirmed by the Senate without the support of a single member of the minority party. Even Sen. Joe Manchin (D-WVA), who backed Brett Kavanaugh in 2018 (and Barrett for her circuit court seat three years ago), didn’t support her this time.

As Marsha Coyle noted on PBS, the Supreme Court went 11 years until 2005 without a change in Justices. In the next four years, the Court saw seven new Justices. Now we’ve seen three more in just four more years.

Justices are staying on the Court longer. In the 19th Century, the average tenure of a Justice was less than 10 years, due mainly to shorter life expectancy. Now that it’s becoming increasingly common for them to serve into their 80s, Justices are serving for 25 years, or more.

All of this is background to what we’ll have to get used to from Amy Barrett in the next few decades, including this quasi-campaign event:

There were understandably a few negative reactions:

Whatever happens going forward, please, please let’s not call her “ACB” as if she is some great legal mind akin to Ruth Bader Ginsburg. Barrett is to RBG what Clarence Thomas is to Thurgood Marshall; a facsimile of a Supreme Court Justice.

The NYT has a series of articles on How to Fix the Supreme Court that are worth your time. In one article, Emily Bazelon says this:

“….Republican dominance over the court is itself counter-majoritarian. Including Amy Barrett, the Party has picked six of the last 10 justices although it has lost the popular vote in six of the last seven presidential elections…”

The Republican Party doesn’t represent the majority of Americans. So it tries to achieve its goals by other means, even if that means perverting the intent of our Constitutional system.

We know that clear majorities of Americans favor reproductive rights, limiting political donations, stricter gun control and reversing climate change. But since the GOP controls the courts, it hopes to prevent these viewpoints from ever becoming law.

Movement conservatives are using a theory of judicial construction (Originalism) that didn’t exist until about 40 years ago. And they’re using it to overturn long-standing precedents, while also inventing novel constructions not found in the Constitution when it suits them (see Shelby County vs. Holder).

Among the options addressed in the Times’ article are: (i) Dividing the work of the Supreme Court into two parts, Constitutional issues and all others that concern interpretation of existing laws and statues. This would establish a Constitutional Court, an idea that several other countries have instituted (among them, France, Germany, and South Africa); (ii) Term limits for Supreme Court Justices; (iii) Adding more Justices to the Supreme Court; and (iv) Expanding the lower Federal Courts.

The Framers rejected the idea of a judicial retirement age. It was envisioned that a lawyer would need a lifetime of experience to become fully versed in the precedents that would govern their decisions as a Supreme Court Justice. But now, we have Amy Barrett serving as a Justice at age 48. The youngest Supreme Court judge ever was Republican Joseph Story, who was 32 when James Madison appointed him.

OTOH, term limits almost certainly require a Constitutional Amendment, since it would create an involuntary retirement from the Court.

Biden has said he will convene a commission to study Supreme Court reform. That kicks the can down the road. This is probably a good idea for now, until we see the decisions made by the current conservative majority in a few of the signature cases coming up this term. There is now a 6-3 MODERATE conservative majority on the Court, and depressingly, a 5-4 REACTIONARY majority on the Court.

For now, all we can do to change the Court is vote out of power those Republicans who denied Obama an appointment, only to cram three Justices through on Trump’s watch. We start by flipping the Senate in November.

Republicans are doing everything they can to lay the groundwork to overturn the election in the courts. The good news is that stopping them is easy: VOTE.

May the confirmation of Barrett be the last thing that the national Republican Party ever accomplishes.

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We’ll Be Ruthless in November

The Daily Escape:

Capitol Peak, CO from the Upper Capitol Creek Trail – September 2020 photo by CampsG

“Stand your ground. Do not fire unless fired upon. But if they mean to have a war, let it start here.” – Col. John Parker, Commander of rebel forces, Battle of Lexington

America is already at war with itself. And that was before the thermonuclear bomb of Justice Ginsburg’s death. We need to avoid getting distracted by the shenanigans of Republicans around a Ginsburg replacement, and instead, use it to take back the White House and the Senate.

Wrongo believes that the efforts by Republicans over the next 42 days to ram through another conservative justice may be successful at shaping the direction of the Supreme Court. But successful or not, it will increase the number of likely anti-Trump voters.

One thing that points to better Democrat engagement is that the Democrat’s fund raising site, ActBlue, has raised more than $100 million since RBG’s death. This suggests that the looming court vote is energizing Democrats in a way that Biden hasn’t.

And it’s fantasy to ask Republicans to throw away the chance to get a third Supreme Court justice. They’ve spent the last four years losing their dignity defending Trump. And they’re not throwing it away now, particularly if they think Biden wins in November. So stop showing old sound bites or op-eds by Republicans saying they wouldn’t support a lame duck appointment of a Supreme Court justice. The President and Senate control the nomination process. Nothing in the US Constitution prevents them from filling a vacancy, whenever it occurs, assuming they have the votes.

Sure, it’s a violation of tradition. Not like we haven’t seen plenty of that since 2016.

But if Trump’s nominee makes it through the Senate, Trump may be making himself redundant to conservatives. The fear that a Democratic president will appoint justices who will swing the Court far to the left will be gone.

But there’s a wildcard that could upset the Senate vote count for a nominee to replace Ginsburg, if it happens after the election. The NYT reports:

“The winner of the Arizona Senate race could be seated in time for a vote on a Supreme Court pick…”

Should Mark Kelly, the Democratic nominee for Senate in Arizona, beat sitting Sen Martha McSally, he could be sworn in as early as Nov. 30, since Sally is filling an expiring term. Hypothetically, a Kelly win would narrow the Republicans’ majority to 52-48. This could make it difficult for McConnell to round up enough votes, since Sens Collins and Murkowski have said they think the nomination should come after the inauguration on January 20, 2021.

If you are fired up to prevent Trump from placing a third conservative justice on the Supreme Court, send money to Mark Kelly at markkelly.com.

The tyranny of the minority is something that Wrongo has written about before. Our Constitution gives an unfair advantage to underpopulated states. By 2040, according to a University of Virginia analysis of census projections, half of America’s population will live in eight states. About 70% of people will live in 16 states, meaning that 30% of the population will control 68% of the Senate.

From Heather Cox Richardson:

“Both of the last two Republican presidents—Bush and Trump– have lost the popular vote, and yet each nominated two Supreme Court justices, who have been confirmed by the votes of senators who represent a minority of the American people. The confirmation of a fifth justice in this way will create a solid majority on the court, which can then unwind the legal framework that a majority of Americans still supports.”

When Scalia died in 2016, Republicans had a 54-46 majority in the Senate, despite the fact that Democratic senators represented about 20 million more people than Republicans in 2016. Two years ago, Neil Gorsuch became the first member of the Supreme Court in American history to be nominated by a president who lost the popular vote and who was confirmed by a bloc of senators who represent less than half of the country. The second was Brett Kavanaugh.

It also impacts the selection of Presidents. The tyranny of the minority has allowed five men who lost the popular vote to become president: Trump, George W. Bush, Benjamin Harrison, Rutherford B. Hayes, and John Quincy Adams. A scary thought is that some analysts think Biden needs to win the 2020 popular vote by at least 6% to carry the Electoral College.

It’s time to remember that Trump has confirmed 53 Republican Appellate court justices in four years, compared to 55 in 8 years for Obama.

It’s time to punch back.

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Keep Your Foot on the Gas

The Daily Escape:

Landscape Arch, Arches NP, Moab UT – 2020 photo by wmartin2014

There are 48 days to go until the election, and nobody who wants Trump retired can relax. The latest New York Times/Siena College poll shows Biden leading Trump in four swing states, Minnesota, Nevada, New Hampshire and Wisconsin. Wining them could guarantee a Biden victory.

But, there were scary findings for Biden in the survey: In those four states, a larger share of voters said “addressing law and order” was a more important campaign issue to them than “addressing the coronavirus pandemic”.

Biden is perceived by some to be weak on crime, despite his lifetime legislative record that says just the opposite. But, while he’s been clear about his stance on rioting and looting, he hasn’t said it often enough to penetrate the consciousness of many voters: A majority of poll respondents said Biden “hasn’t done enough to condemn violent rioting.” Even 27% of his supporters agreed with that answer.

We’ve talked about Biden needing to be simultaneously on both offense and defense. He needs to do better with the perception of weakness around protests, looting and violence, and the future of policing. He hasn’t talked about it often enough, and that’s one reason why the campaign hasn’t turned into a rout.

If Biden fails at this messaging, the 2020 election will turn out to be uncomfortably close.

Ed Kilgore wrote about the uncomfortably close election of 1876, just 11 years after the end of the civil war. It was the closest the country has come to war over a presidential election:

“Republican Rutherford B. Hayes defeated Democrat Samuel Tilden by a single electoral vote after a dispute that wasn’t resolved until the eve of Hayes’s inauguration in March of 1877.”

Legal battles broke out in three southern states over both the presidential contest, and about which party controlled the state governments. Both Parties sent competing slates of electors to Washington from all three. More from Kilgore:

“As the time neared in January 1877…tensions rose around the country and in Washington. Democrats were particularly motivated given their candidate’s apparent popular vote margin (ultimately judged to be three percent) and threatened “Tilden or War.”

A compromise was reached days before the end of Grant’s administration, under threat of violence. Republican Hayes pledged to withdraw the remaining Federal troops in Louisiana, South Carolina and Florida, effectively ending Reconstruction in the south. That allowed southern Democrats to agree to Hayes as president.

Funny how history works: The Dems in 1876 represented the old plantation owner’s class, pro-slavery, and later, the ‘black codes’. The Southern Dems hold on the Democratic Party ended with LBJ passing the voting rights and civil rights acts with Republican help in the 1960’s. Subsequently, Nixon’s Southern strategy made the south a Republican stronghold.

But we’ve also had close elections since then. Paul Campos says:

“Over the past 60 years, six of the fifteen presidential elections in the USA have been extremely close. These elections ended up being basically coin flips — if they had been held a few days earlier or later, or if the weather had been different on Election Day, etc., the result could easily have changed.”

Campos outlines six recent close elections:

Kennedy over Nixon: The first of three presidential elections in the 40 years prior to 2000, in which the winner almost lost the popular vote. Kennedy won by about 100,000 votes out of nearly 69 million cast.

Nixon over Humphrey: This was a three-way contest in which votes for George Wallace were almost enough to throw the presidential election into the House of Representatives. That would have elected Hubert Humphrey, since if Nixon hadn’t won California, he wouldn’t have commanded a majority vote in the Electoral College.

Carter over Ford: Ford made a huge comeback in the weeks immediately before the election, but lost Texas and Mississippi, which were extremely close, with the Electoral College going 297 for Carter and 240 for Ford. Reagan didn’t campaign for Ford, which probably cost the Republicans the presidency.

Bush over Gore. You know how this one came out. Gore said at the time that there was no intermediate step between the Supreme Court and armed rebellion.

Bush over Kerry: Bush won the popular vote by three million, and the Electoral College by 286 to 251. A few tens of thousands of votes in Ohio separated Kerry from winning.

Trump over Clinton: This one wasn’t as close as Campos says.

But, flipping any one of these elections would have had enormous consequences for subsequent US history.

This should keep us all up at night, working hard that to ensure that it doesn’t happen again in 2020. There were lots of optimists in 2016. We need to be more realistic this time around.

We need to register the unregistered, and get out the vote.

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