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The Merrick Garland Disaster

It’s impossible for me to feel more bitchy about this nominee.

I’m not going to take a deep dive into his record because I’m positive that if you’re reading this blog, you’ve already done that. I will say that his record on criminal justice is abysmal, especially if you’re a president who has been talking about criminal justice reform. He’s a former prosecutor so he’s prone to seeing every defendant as a criminal that needs punishing. And he has, in virtually every criminal justice case he’s ruled on. He’s the guy that always dissents from more liberal judges on these issues.

Here’s what ScotusBlog said about him (in 2010) in regard to his rulings on constitutional issues;

“In various other contexts, Judge Garland has in a few cases rejected assertions of constitutional rights, disagreeing with his more-liberal colleagues.  I am not aware of counterexamples in which he has staked out a more liberal position.”

He seems okay on civil rights issues, but we really don’t have very many civil rights rulings from him to look at.

Like Roberts, Garland has never met a corporation he hasn’t agreed with. YAY!

We don’t have really anything from him on the issues of campaign finance (my biggest issue) or women’s reproductive rights.

Here’s the bottom line: there isn’t much evidence to demonstrate that he’s liberal so at best, he’s a complete centrist.

We know that republicans love him. Right wing whackadoodle senator Orrin Hatch said this about Garland;

“Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned… His legal experience is equally impressive… Accordingly, I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court. I believe he is not only a fine nominee, but is as good as Republicans can expect from this administration. In fact, I would place him at the top of the list.

Mega whackadoodle senator from Alabama Jeff Sessions said;

“He has a high position with the Department of Justice and, by all accounts, does a good job there. There will be a number of judgeship vacancies in the D.C. trial judges. He has been a trial lawyer. He would be a good person to fill one of those. I would feel comfortable supporting him for another judgeship.”

Former republican senator from Arizona, Jon Kyle said;

“I believe Mr. Garland is well qualified for the court of appeals. He earned degrees from Harvard College and Harvard Law School and clerked for Judge Friendly on the U.S. Court of Appeals for the Second Circuit and for Justice Brennan on the Supreme Court and, since 1993, he has worked for the Department of Justice. So there is no question, he is qualified to serve on the court.”

Remember, Jon Kyle is the lunatic who proclaimed (on the senate floor) that 90% of what Planned Parenthood does is abortions. When he was called on it, his office released a statement saying, “that was not intended to be a factual statement”. Wow, you must be awesome to get that guy’s praise.

It gets better. Here are Strom Thurmond’s thoughts on Garland;

“I have no reservations about Mr. Garland’s qualifications or character to serve in this capacity. He had an excellent academic record at both Harvard College and Harvard Law School before serving as a law clerk on the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court. Also, he has served in distinguished positions in private law practice and with the Department of Justice. Moreover, I have no doubt that Mr. Garland is a man of character and integrity.”

This is not a person that a “liberal” president should be nominating to the Supreme Court. Wanna know how I can tell? Because when republicans get their turn, they nominate and fight for people like Clarence fucking Thomas, Sam Alito, and Antonin Scalia.

I love it when republicans talk about preserving the balance of the court. You mean like when you guys replaced Thurgood Marshall with pervy, right wing mute, Clarence Thomas? Preserve the balance like that?

“Preserving the balance” of the court is only an issue when a democrat occupies the white house. When a republican occupies the white house, they get to go for the fringiest of the right wing fringe nominee they can find. But democrats don’t ever get their turn at nominating anyone who is anything resembling left of center. Or left of center right. And democratic voters are happy with this. It’s like they suffer from some kind of fucked up Stockholm Syndrome, where they can’t even conceive of going for a nominee in the model of Earl Warren.

So to recap; republicans get to assemble their right wing dream team when given the opportunity, but democrats are perfectly content with someone who “isn’t as bad as Scalia”. I have some news for you; comparing a nominee to the worst of the worst isn’t a good calibration of your good nominee barometer. That’s like comparing a president to George W Bush. Why not aim a little higher with your comparisons?

Now let me get to the heart of the Stockholm sufferers’ argument. Obama is actually playing three dimensional chess by nominating someone republicans like, and forcing their hand on a nomination. And by refusing to hold hearings on a “friendly” nominee, he’s exposing republican obstructionism.

Let me pick this argument apart. First off, republicans have already done that when they proclaimed that they wouldn’t consider anyone Obama nominates. That already happened. Republicans have already exposed their own obstructionism. Check. Polls taken days after that announcement show that republican senators prospects for reelection had been damaged by that stance. Three republican senators are in big trouble in terms of their prospects of being reelected if the republicans refuse to confirm anyone. That’s without knowing who the nominee even is. Americans are fundamentally fair. Yes, there are partisan hacks on both sides but that’s not the majority of Americans who approved of Bill Clinton to the tune of 68% after republicans tried to impeach him over a private affair. You don’t get to 68% without the support of a significant number of people who call themselves republicans.

The idea that Obama is forcing their hand by nominating someone they like, and thereby furthering that perception of their obstructionism is predicated on the idea that the American people pay attention to the background of a Supreme Court nominee. That’s nonsense, and there isn’t a shred of evidence that’s true. In fact, the evidence points the other way. Two thirds of Americans can’t name a single sitting Supreme Court justice. That’s right, two thirds of Americans can’t come up with a single name. A whopping 20% can manage to come up with the Chief Justice’s name. Wow, that’s impressive. The percentages go down after naming Roberts:

  • John Roberts — 20%
  • Antonin Scalia — 16%
  • Clarence Thomas — 16%
  • Ruth Bader Ginsburg — 13%
  • Sonia Sotomayor — 13%
  • Anthony Kennedy — 10%
  • Samuel Alito — 5%
  • Elena Kagan — 4%
  • Stephen Breyer — 3%

Trust me when I tell you that Americans give almost no shits about the background of a Supreme Court nominee. Not only is there no upside in nominating a centrist, but the huge downside is that it perpetuates the current reality that democrats can’t ever nominate a liberal. This is a terrible long term strategy. Obama should have nominated Thom Hartmann or the ghost of George Carlin. The further left, the better. Elizabeth Warren or Bernie Sanders would also be excellent choices.

There’s another factor that hasn’t been considered by democrats who think that Obama is being “brilliant” with this move: Trump. Democrats are convincing themselves that this is a brilliant move because republicans are never going to confirm this guy. I believe they’re wrong. Right now, republican operatives are trying to figure out what to do about the Trump problem. They really only have two choices:

  • Let him be the nominee, which jeopardize all of the down ticket candidates. They’re justifiably afraid that an anti-establishment nominee hurts down ticket establishment senators and congress candidates. In order to save the senate, they’re effectively going to have to run against their own presidential nominee. They’re already talking about sacrificing the presidency to save the senate.
  • Pull a fast one at the convention and pick another nominee. This poses a risk of revolution within the republican party and also hurts down ticket candidates, since it makes the establishment look even slimier than they look now.

That’s it. There are no other options for the GOP. Trust me when I tell you that, given these two options republicans are going to try and save the senate seats. Saving the senate means not doing anything to jeopardize a single senator who’s up for reelection.

The three dimensional chess theory is dependent on republicans refusing to confirm this guy. I think that the odds are that they will because they have to. Certainly given the Trump factor, the odds are better than they will confirm, than they won’t.

As I said, I don’t see anything good about this nomination. For a democrat to think this is a good thing, you would have to employ some magical thinking that combines the acceptance that we’re in a perpetual hostage situation, blind ignorance to the position that republicans are in with their inevitable nominee, and assumptions that are completely supported by a shred of evidence.

I don’t suffer from Stockholm Syndrome so I’m experiencing some acute bitchiness this morning.

 

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The Most Important Election Of Your Lifetime

We always hear that. Every single election is “the most important election of your lifetime”. That’s almost always hyperbole, but not this time. This time, we’re voting for a four or eight year term for the next president and a twenty to thirty year term for the next Supreme Court Justice. This really is the most important election of your lifetime because the balance of the Supreme Court is in play.

Now that Antonin Scalia has moved on to the big Klan meeting in the sky, we have the opportunity to move the court from the far right to the center. I’m going to pause my train of thought for a moment to articulate that Klan comment I just made. I meant it, and I’m sick of people trotting out the old “respect for the dead” line today. I believe that you die as you lived. Here’s how Antonin Scalia lived (these are all direct quotes).

On equality:

“Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct[.] It’s true that people generally disapprove of murder, but there’s more going on in laws banning murder than mere disfavor—the rights of the person being murdered, for example.”

“[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity,” along with any other law “based on moral choices,” are now “called into question” by the court’s decision.”

“This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality is evil. I vigorously dissent…Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable”

On the second amendment:

“It doesn’t apply to cannons—but I suppose there are hand-held rocket launchers that can bring down airplanes, that will have to be decided.”

On a woman’s right to choose:

“The right to abort, we are told, inheres in “liberty” because it is among “a person’s most basic decisions,”…it involves a “most intimate and personal choic[e],”; it is “central to personal dignity and autonomy,”; it “originate[s] within the zone of conscience and belief,”; it is “too intimate and personal” for state interference; it reflects “intimate views” of a “deep, personal character,”; it involves “intimate relationships,” and notions of “personal autonomy and bodily integrity,”; and it concerns a particularly “important decision”. But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court has held are not entitled to constitutional protection–because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. (citations omitted)”

“I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.”

On equal protection:

“Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

And finally, Scalia’s blatant racism:

“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.

That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.”

I won’t even go into his disdain for democracy with Bush v Gore, Citizens United or McKutcheon. Anton Scalia does not deserve any respect from me, and he won’t get it.

Back to my point. This really is the most important election of your lifetime. I’m talking to you, democrats. I know that the primaries aren’t over yet, but you all need to start wrapping your minds around embracing whoever the democratic nominee is going to be. I know, I know….you can’t ever see yourself voting for Bernie or Hillary. Well guess what? It’s time to get your vision checked so that you can see it.

I’ve made no secret of the fact that I’m on team Bernie. But I’ve also made it very clear that I will go out and vote for Hillary if she’s the nominee. I’ve defended (you should click on that link) Hillary when she’s been falsely accused, and I’ve stood up for Bernie when he speaks the objective truth. I have also criticized both when they’re wrong. Politics isn’t emotional for me, and it shouldn’t be for you.

You need to start focusing on your own self interest. That self interest is stopping a lunatic republican from putting a young, spry Scalia clone on the Supreme Court.

Republicans in the senate are going to do their damnedest to make sure that President Obama doesn’t make this Supreme Court appointment, as is his right per our constitution. That means they’re going to punt this nomination until after inauguration day. That also means that their biggest donors are about to pick who the republican nominee is. They’re going to have to coalesce around one candidate. And they’re going to throw every smear they can on Hillary and Bernie.

You shouldn’t help them.

At this point, I would like to get into the difference between a smear and an objective truth. Here are some examples to help illustrate:

“Hillary broke the law when she used her private email server to orchestrate an attack on Benghazi.”

That would be a smear, since using her private server broke no laws, and investigation after investigation has found nothing untoward in regard to Hillary’s actions pertaining to Benghazi.

“Bill and Hillary Clinton are completely corrupt.”

That would also be a smear, since no one in the history of our country have been more investigated than the Clintons. Those investigations have resulted in finding precisely no illegal activity.

“The financial industry are among Hillary’s top donors, and they’re expecting a return on their investment.”

That would be an objective truth, and over 80% of us agree that corporate money is corrupting our politics. That would also be an objective truth that you won’t be hearing in the general election, should Hillary become the nominee because her opponent will be significantly more guilty of participating in this particular form of legalized corruption than she has been.

“Hillary is much more qualified to be president than Bernie.”

That would also be an objective truth, which I laid out in the post I linked to above. Bernie is pretty weak on foreign policy. That’s just a fact, but so was President Obama. Getting corporate money out of politics is my primary policy concern, so Bernie is my candidate. That doesn’t mean that I have to retool this particular objective truth in order to make the choice I’ve made.

“Bernie has taken money from Wall Street too.”

That would be a smear. Bernie has received a tiny fraction of his total fundraising efforts from the democratic party apparatchik over the course of his career. Some (or most) of that money may have come from Wall Street. This is not the same as accepting donations from Wall Street, who clearly despise him. If you want to use this smear, you’re going to have to start talking about Elizabeth Warren’s Wall Street contributions too. It’s just not an intellectually honest point.

“[Bernie] [Hillary] can’t win the general election.”

That one is not a smear, but it’s also objectively false. This one is simply projection. We have a mountain of polls demonstrating that either Hillary or Bernie can resoundingly beat any republican who may end up being the nominee if we all support our nominee.

That’s precisely what we all have to do. I’m not saying that you shouldn’t support your chosen candidate in the primary. We all should, and I’m with Bernie for as long as Bernie is in the race. But I am saying that you need to start getting used to the idea of supporting whoever the democratic nominee is going to be.

So maybe, instead of putting up posts against either Bernie or Hillary, we can focus on posting for the one we support? We can support our chosen candidate without tearing down the one we’re not voting for in the primary. I know that’s hard, and I know that some people are so emotionally invested in this election that they can’t see the difference between posting an objective truth and a smear.

So let’s make a deal: how about we all agree to post an 80/20 ratio of positive posts supporting our candidate? And how about we use the same ratio for our comments? Why am I proposing this? Because I believe that focusing on the positive will make it easier for everyone to do what needs to be done in the general election. If you’re constantly making vitriolic comments about a candidate, your emotions are more likely to get in the way of your pragmatism.

Let’s all try and advocate our primary positions with more positivity than what’s been happening on our side of the primary so far. The next thirty years worth of Supreme Court decisions is dependent on decisions that democrats make over the next nine months. Let’s make smart choices that are in our own self interest.

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Opinion, Or Projection?

I’ve been listening to, and reading opinions about Elena Kagan for a couple of days now. I’ve done a good amount of research in an effort to learn more about her, and I have a conclusion; Anyone that has an opinion about this woman is making assumptions based on what they want her to be.

She is as close to a blank slate as a person that is qualified for this job can be.

She’s definitely qualified for the position. Don’t let anyone tell you that she’s not qualified because she’s never sat on a bench. Two ( Rehnquist and Warren) of our last four Chief Justices had no judicial experience when they were nominated to the court. John Roberts only had two years experience on the bench when he was nominated. Forty of the one hundred and eleven supreme court justices that we’ve had in our history, had no judicial experience prior to serving on the court. She’s currently serving as our Solicitor General. She’s worked as a law professor, an associate at a giant law firm, assistant white house council during the Clinton administration, and clerked for Thurgood Marshall. She’s qualified.

Now that we’ve established that, on to her “temperament”. Liberals don’t think she’s liberal enough. Republicans think she’s a flaming liberal (and a lesbian). So who’s got it right? There’s really no way to tell. On one hand, she’s worked for some very liberal judges (Mikva and Marshall) and politicians (she was an adviser on the failed Dukakis presidential campaign). Does that mean she’s a liberal? Not necessarily. Rahm Emanuel has always worked within the democratic party. Is anyone under the illusion that he’s a liberal? She worked in the Clinton white house which, in my opinion, is neither an indication of liberalism nor conservatism, although it does support corporatism! And then there’s that brief period when she worked as a paid adviser to Goldman Sachs. Does this point to her being a conservative? Not really, but it does indicate that she doesn’t find Goldman morally objectionable enough to refuse to do business with them.

On the issue of “Don’t Ask, Don’t Tell”, she did (briefly) deny military recruiters access to the main recruitment office during her tenure at Harvard (she did not cut off their access to students in any other way), but during her  confirmation hearings in 2009 she pledged to defend the Solomon Amendment, which balances out her actions at Harvard. Her objection to the military recruiters was actually intellectually sound. She asserted that she wouldn’t allow any other organization that practiced discrimination to use the recruitment office so she didn’t feel that military recruiters should get special treatment. This was by no means an emotional perspective.

That’s pretty much all we have to go on with Elena Kagan. She seems to have spent her whole career almost methodically ensuring that she remains a blank slate. It seems as if she’s spent her entire career preparing for a supreme court nomination hearing. Does that make her shrewd? Absolutely. Does it make her calculating? That would be a matter of opinion.

The one thing I’m certain of, is that the far right is never going to find actual evidence to support their assertions that she’s gay. Whether she is or not is really moot to me and any other rational human, but I’m positive that assaulting her with those assertions will be the path that the far right will take. I’m equally certain that they will never find any evidence to support their assertions because she has been so methodical in maintaining her “blankness”. There’s absolutely no chance that she’s left any evidence of gayness out there to sink her nomination.

The truth is that we simply don’t know what we’re going to get when she becomes a supreme court justice. I say when, because she’s almost assured a confirmation. I have no doubt that Obama knows what he’s getting since they have a personal relationship that goes back many years. But since we don’t really know what Obama is, given his persistent moderation, we don’t know what he’s looking for in a supreme court justice.

The bottom line is that anyone that has an opinion about her temperament is basing that opinion on pure conjecture.

Personally, I would liked to have seen a more overtly liberal nominee to balance out the corporatist cabal we have in Roberts, Thomas, Scalia, Alito, and Thomas. My ideal court would consist of four conservatives, four liberals, and one free thinker that can be persuaded. Since we don’t have that right now, I would have preferred the nomination of George Carlin’s ghost to this vacancy!

But much to my dismay, we got Elena Kagan. Do I oppose her? I really have no reason to. Do I support her? I really have no reason to. She truly is a blank slate, and I’m not projecting anything onto her.

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