Im-Politic: The Supreme Court Mess I

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Antonin Scalia, Barack Obama, Biden Rule, conservatives, Constitution, Democrats, election 2020, elections, Ginsburg, Im-Politic, Joe Biden, lame duck Congress, liberals, Merrick Garland, Mitch McConnell, Republicans, rule of law, Ruth Bader Ginsburg, Senate, Supreme Court, Trump

I call this piece “The Supreme Court Mess I” rather than “The Ginsburg Mess I” because the fix in which the nation finds itself regarding the replacement of the late Supreme Court Justice Ruth Bader Ginsburg reflects a number of much deeper problems America is suffering. These stem from the firestorm-like nature of some recent battles over the roster of this nearly (but not quite paramount) arbiter of the Constitution, which makes it a the nearly last word regarding the entire U.S. legal system and its often decisive, lasting effects on every dimension of American life. (The Roman numeral tells you that there will be another post on this subject coming real soon, probably tomorrow.)

Today we’ll focus on the immediate question at hand: whether the Senate should vote on President Trump’s nominee for a new Justice. To me, the only answer with any merit: Absolutely. Indeed, nothing could be stronger, and more important to affirm, than the conclusion that any President has every right to nominate a new Justice at any time during any of his or her terms in office (i.e, through Inauguration Day, January 20), and that the Senate has every right to vote on his choice during this time. Why? Because it’s what the Constitution says, and neither the Framers nor any American leaders have ever formally tried to change the system since 1789. That is, there are no exceptions made – including for presidential election years, as many Democrats are calling for now.

If you think about it non-hysterically, you can see why. Abandoning this standard opens the door to the kind of bizarrely and indeed laughably convoluted and self-serving case being made now by Republican Senate Majority Leader Mitch McConnell of Kentucky to explain why (a) he’s decided to allow a vote on a Supreme Court nominee this presidential election year, but (b) refused to allow former former President Obama’s appointment of Supreme Court nominee Merrick Garland be considered during the previous presidential election year.

According to McConnell, the governing principle for Court nominations is the result of the latest Senate election. As he wrote right after Ginsburg’s passing:

“In the last midterm election before Justice [Antonin] Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, To

To which the only serious reaction has to be “Seriously”? Not only is this position even further from the Constitutional standard than the presidential carve-out position. If it’s followed, it’s easy to see how other unscrupulous politicians could use even more arbitrary maxims like this to completely paralyze the Supreme Court nomination process.

After all, if it’s the Senate’s makeup that counts most of all, then why not bar nominations during the run-up to such elections – which of course take place every two years (when a third of the Senate faces reelection). For by McConnell’s logic, it wouldn’t be possible to know the people’s will on such matters for certain until those Senate results are in. And how would anyone define “run-up”? A month? Two? Six? A full year? On what objective basis could anyone distinguish among these possibilities? The only reasonable answer? None.

Lest you want to blame Republicans alone for this kind of sophistry, keep in mind that its origins lie in the so-called “Biden Rule” – when in 1992, the former Vice President and current Democratic presidential nominee argued that “once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” And in an example of poetic justice, McConnell and many other Republicans and conservatives cited this reasoning to justify their own Supreme Court positions when former President Barack Obama in March, 2016 nominated senior federal judge Merrick Garland to fill the seat left by Scalia’s death in February.

Three final observations: First, any number of politicians and pundits are citing various supposed historical traditions for justifying their stances on election year Supreme Court votes. (See here for Republicans and conservatives, and here for Democrats and liberals.) To which I can only say, “Tradition, shmadition.” As indicated above, although interpretation is possible and often needed for all laws and many Constitutional provisions, when the latter set out clearcut procedures – as for the nomination and approval of Supreme Court Justices (but not so much for impeachment) – Americans drift away from them at their peril. If you don’t like these procedures, then use the amendment process of the Constitution to change them, rather than pretending that traditions and non-legal precedents and other practices are adequate substitutes.

Second, equally ludicrous and even more dangerous is the claim that the nation’s current divided circumstances justify waiting until after the presidential election to fill the Ginsburg seat. That’s essentially warning that violence may erupt if the President and Senate exercise their Constitutional prerogatives, and in effect supporting a surrender to the threat of mob rule.

It’s absolutely true that practically all decisions made by political leaders – elected and unelected alike – are at least partly political in nature, and can profoundly affect the national interest short term and long term. It’s entirely legitimate, therefore, and even important for President Trump to take into account in his Ginsburg approach non-Constitutional considerations.

But it’s something else entirely, and far more dangerous, to contend that such judgment calls are or should in any way be legally binding. As with federal government personnel choices, Constitutional procedures can be used to protest and overturn presidential or other decisions that are entirely legal but unpopular for whatever reason. They’re called elections, and Americans would do far better to focus on taking all (legal) steps to ensure that their candidates and viewpoints prevail, rather than dreaming up spur-of-the-moment rationalizations for ignoring settled law that may create momentary advantages, but that contain equal backfire potential, and that can only erode the rule of the law to everyone’s ultimate detriment.

Third, my only strong preference in this matter is that a Senate Supreme Court vote not take place during a lame duck session – which would be convened after the presidential election. That’s because a possibly decisive number of Senators who would be considering the nomination would be Senators who have been voted out of office. What an offense to the idea of representative government that would be! At the same time, it’s only my preference. These sessions themselves are entirely legal, and I’m not about to claim that my views should substitute for Constitutional procedures.

Making News: Quoted on a Navarro Hit Piece and China Political Meddling

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Breitbart.com, Cato Institute, China, election 2020, elections, Mainstream Media, Making News, Peter Navarro, Ted Galen Carpenter, The American Conservative, The National Interest, The Washington Post, Trump

I’m pleased to announce that my views were cited in two major media articles last week.

The first was a Breitbart.com article examining a Washington Post piece on Trump trade and manufacturing adviser Peter Navarro that I dismissed as a by-now-standard Mainstream Media hatchet job.  Here’s the link.

The second was a post in The National Interest by the Cato Institute’s Ted Galen Carpenter (full disclosure – a close personal friend).  It mentions my American Conservative article on China’s widespread and thoroughly under-reported efforts to interfere in U.S. elections and broader politics. Click here to read.

And keep checking in with RealityChek for news of upcoming media appearances and other developments.

 

Following Up: New Podcasts On-Line Covering the U.S.-China Trade War & Beijing’s U.S. Politics Meddling

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decoupling, economy, election 2020, elections, Following Up, Frank Morano, Gordon G. Chang, Obama, The American Conservative, The John Batchelor Show, Trade, trade war, Trump, WABC AM

I’m pleased to announce that the podcasts of two recent radio appearances are now on-line, and both focus on headline-making China-related issues.

The first is a recording of my interview last night on John Batchelor’s nationally syndicated radio show.  Click here for an incisive update on the fast-evolving trade and tech conflict between the world’s two largest economies provided by John, co-host Gordon G. Chang, and me.

The second reprises my session this morning with Frank Morano of New York City’s WABC-AM radio spanning a wide range of topics, from comparisons of the Trump and Obama economies to my new American Conservative article on China’s massive and massively under-reported efforts to interfere with U.S. politics and elections.  Here’s the link; my segment comes in at about the 7:40 mark.

And keep checking in with RealityChek for news of upcoming media appearances and other events.

Making News: Back on NYC Radio This AM to Talk China’s Massive Election Interference

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China, Democrats, election 2020, elections, Frank Morano, Mainstream Media, Making News, The Americn Conservative, WABC AM

I’m pleased to announce that I’ll be returning to New York City radio this morning to talk about my new article on way under-reported Chinese interference with U.S. elections and the broader political process.  The interview will be broadcast on Frank Morano’s show on WABC-AM and you can listen on-line at this link.

As usual, if you can’t tune in, I’ll post a link to the podcast as soon as one’s available.

And keep checking in with RealityChek for news of upcoming media appearances and other developments.

Im-Politic: Why China’s U.S. Election Interference is a Very Big Deal

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battleground states, Center for Strategic and International Studies, China, Chinese Americans, collusion, Democrats, election 2020, elections, entertainment, Freedom House, Hollywood, Hoover Institution, Im-Politic, Mike Pence, multinational companies, Nancy Pelosi, National Basketball Association, NBA, Robert Draper, Robert O'Brien, social media, The New York Times Magazine, think tanks, Trump, Trump-Russia, Wall Street

It’s baaaaaaack! The Russia collusion thing, I mean. Only this time, with an important difference.

On top of charges that Moscow is monkeying around with November’s U.S. elections to ensure a Trump victory, and that the President and his aides are doing nothing to fend of this threat to the integrity of the nation’s politics, Democrats and their supporters are now dismissing claims administration about Chinese meddling as alarmism at best and diversionary at worst.

In the words of House Speaker Nancy Pelosi, commenting on recent testimony from U.S. intelligence officials spotlighting both countries’ efforts, to “give some equivalence” of China and Russia on interference efforts “doesn’t really tell the story. 

She continued, “The Chinese, they said, prefer [presumptive Democratic nominee Joe] Biden — we don’t know that, but that’s what they’re saying, but they’re not really getting involved in the presidential election.” ,

The Mainstream Media, as is so often the case, echoed this Democratic talking point. According to The New York Times‘ Robert Draper (author most recently of a long piece in the paper’s magazine section on Mr. Trump’s supposed refusal to approve anti-Russia interference measures or take seriously such findings by the intelligence community ), China “is really not able to affect the integrity of our electoral system the way Russia can….”

And I use the term “Democratic talking point” for two main reasons. First, the Chinese unquestionably have recently gotten into the explicit election meddling game – though with some distinctive Chinese characteristics. Second, and much more important, China for decades has been massively influencing American politics more broadly in ways Russia can’t even dream about – mainly because so many major national American institutions have become so beholden to the Chinese government for so long thanks to the decades-long pre-Trump policy of promoting closer bilateral ties.

As for the narrower, more direct kind of election corrupting, you don’t need to take the word of President Trump’s national security adviser, Robert O’Brien that “China, like Russia and Iran, have engaged in cyberattacks and fishing and that sort of thing with respect to our election infrastructure and with respect to websites.”

Nor do you have to take the word of Vice President Mike Pence, who in 2018 cited a national intelligence assessment that found that China “ is targeting U.S. state and local governments and officials to exploit any divisions between federal and local levels on policy. It’s using wedge issues, like trade tariffs, to advance Beijing’s political influence.”

You can ignore Pence’s contention that that same year, a document circulated by Beijing stated that China must [quoting directly] “strike accurately and carefully, splitting apart different domestic groups” in the United States.

You can even write off China’s decision at the height of that fall’s Congressional election campaigns to take out a “four-page supplement in the Sunday Des Moines [Iowa] Register” that clearly was “intended to undermine farm-country support for President Donald Trump’s escalating trade war….”

Much harder to ignore, though: the claim made last year by a major Hoover Institution study that

“In American federal and state politics, China seeks to identify and cultivate rising politicians. Like many other countries, Chinese entities employ prominent lobbying and public relations firms and cooperate with influential civil society groups. These activities complement China’s long-standing support of visits to China by members of Congress and their staffs. In some rare instances Beijing has used private citizens and companies to exploit loopholes in US regulations that prohibit direct foreign contributions to elections.”

Don’t forget, moreover, findings that Chinese trolls are increasingly active on major social media platforms. According to a report from the research institute Freedom House:

“[C]hinese state-affiliated trolls are…apparently operating on [Twitter] in large numbers. In the hours and days after Houston Rockets general manager Daryl Morey tweeted in support of Hong Kong protesters in October 2019, the Wall Street Journal reported, nearly 170,000 tweets were directed at Morey by users who seemed to be based in China as part of a coordinated intimidation campaign. Meanwhile, there have been multiple suspected efforts by pro-Beijing trolls to manipulate the ranking of content on popular sources of information outside China, including Google’s search engine Reddit,and YouTube.”

The Hoover report also came up with especially disturbing findings about Beijing’s efforts to influence the views (and therefore the votes) of Chinese Americans, including exploiting the potential hostage status of their relatives in China. According to the Hoover researchers:

“Among the Chinese American community, China has long sought to influence—even silence—voices critical of the PRC or supportive of Taiwan by dispatching personnel to the United States to pressure these individuals and while also pressuring their relatives in China. Beijing also views Chinese Americans as members of a worldwide Chinese diaspora that presumes them to retain not only an interest in the welfare of China but also a loosely defined cultural, and even political, allegiance to the so-called Motherland.

In addition:

“In the American media, China has all but eliminated the plethora of independent Chinese-language media outlets that once served Chinese American communities. It has co-opted existing Chineselanguage outlets and established its own new outlets.”

Operations aimed at Chinese Americans are anything but trivial politically. As of 2018, they represented nearly 2.6 million eligible U.S. voters, and they belonged to an Asian-American super-category thats been the fastest growing racial and ethnic population of eligible voters in the country.

Most live in heavily Democratic states, like California, New York, and Massachusetts, but significant concentrations are also found in the battleground states where the many of the 2016 presidential election margins were razor thin, of which look up for grabs this year, like Florida, Georgia, North Carolina, Texas, Michigan, and Pennsylvania.

As for the second, broader and indirect, Chinese meddling in American politics, recall these developments, many of which have been documented on RealityChek:

>U.S.-owned multinational companies, which have long profited at the expense of the domestic economy by offshoring production and jobs to China, have just as long carried Beijing’s water in American politics through their massive contributions to U.S. political campaigns. The same goes for Wall Street, which hasn’t sent many U.S. operations overseas, but which has long hungered for permission to do more business in the Chinese market.

>These same big businesses continually and surreptitiously inject their views into American political debates by heavily financing leading think tanks – which garb their special interest agendas in the raiment of objective scholarship. By the way, at least one of these think tanks, the Center for Strategic and International Studies, has taken Chinese government money, too.

>Hollywood and the rest of the U.S. entertainment industry has become so determined to brown nose China in search of profits that it’s made nearly routine rewriting and censoring material deemed offensive to China. And in case you haven’t noticed, show biz figures haven’t exactly been reluctant to weigh in on U.S. political issues lately. And yes, that includes the stars of the National Basketball Association, who have taken a leading role in what’s become known as the Black Lives Matter movement, but who have remained conspicuously silent about the lives of inhabitants of the vast China market that’s one of their biggest and most promising cash cows.

However indirect this Chinese involvement in American politics is, its effects clearly dwarf total Russian efforts – and by orders of magnitude. Nor is there any reason to believe that Moscow is closing the gap. In fact, China’s advantage here is so great that it makes a case for a useful rule-of-thumb:  Whenever you find out about someone complaining about Russia’s election interference but brushing off China’s, you can be sure that they’re not really angry about interference as such. They’re just angry about interference they don’t like.`      

Im-Politic: My Maryland Town Seems Keen on Non-Citizen Voting – & on Weakening Democracy

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Alexander Hamilton, assimilation, citizenship, Constitution, elections, Founding Fathers, George Washington, government benefits, illegal immigrants, Im-Politic, immigrants, legal immigrants, Louis Brandeis, Marsha Dixon, Maryland, Riverdale Park, Thomas Jefferson, voting

How thoroughly depressing to report that my town of Riverdale Park, Maryland seems about to join post-borders and post-citizenship America– that is to say, post-America America. Early next month, the town council is almost sure to approve legislation that will grant the vote in local elections to non-citizens both legally and illegally present in the United States. For good measure, the bill would lower the voting age for such elections to sixteen.

The above description should suffice to point to many of the proposal’s worst flaws. By extending the franchise to illegal immigrants, the town would create another reward for individuals who have broken U.S. law, and add insult to injury to all those outside the country’s borders who have been waiting in line and playing by the rules in order to enter. Even permitting legal non-citizens to vote on the local level would greatly empower many residents who, for various reasons, have chosen to avoid this kind of binding commitment to the American political community. In other words, both categories of canon-citizens would be able to weigh in on decisions with long-term implications for the town’s well-being without much skin in the game.

In addition, in the case of both legals and illegals, the vote would be rewarded based on residing in Riverdale Park for a grand total of 45 days. And despite the legislation’s creation of a “supplemental voter registry,” it looks like a great recipe for voter fraud given that applicants merely need to “submit a signed registration form with the town clerk in a form prescribed by the clerk.” The measure does specify that verification be provided that “the individual is eligible to vote in town elections” (by showing residency for 45 days). But how reassuring can this requirement be given that undocumented immigrants are – by definition – undocumented? Even more troubling: Applicants will be able to complete this registration process (including the supposed verification) on the very day elections are held.

As for lowering the voting age to sixteen, anyone who has ever parented an adolescent should understand why this idea should have been a non-starter.

I attended a town council meeting on March 26 to listen to and participate in debate over the bill. All manner of legitimate and specious arguments were made on behalf of legal and illegal non-citizen voting by the smallish number of residents present. Heading the first category was the compelling (though still controversial) claim that the non-citizen voting legislation would be completely acceptable on Constitutional grounds, since the Constitution says nothing explicit about the overall subject. 

Moreover, although citizenship has more recently been established as a nearly absolute requirement for voting in federal elections, the National Council of State Legislatures holds that it’s the states, with important qualifications (such as Constitutional bars on various forms of arbitrary discrimination) that posses “the ultimate authority” over elections within their borders. 

But the flurry of bogus arguments for permitting non-citizens to vote, and the conspicuous failure of most council members to challenge them, convinced me that this scheme is a done deal – unless it can be overturned by a referendum. For example, supporters claimed that enabling non-citizens of both types to vote was needed to establish Riverdale Park as a “welcoming community.” None responded to my objection that any resident is currently free to bring any concerns to the attention of any current town official, and that surely these officials would take them seriously regardless of that resident’s legal status.

I was also of course told that both legal and illegal residents were subject to taxation, and thus deserved representation (as 18^th century patriot Patrick Henry famously insisted). But of course, legal non-citizens are already eligible for a wide variety of benefits at many government levels, and illegals are eligible for a narrower but hardly negligible range – in addition to benefits (like public school attendance and food stamps eligibility) they can access indirectly because their children are permitted to attend public schools and, if born in the United States and therefore citizens. And let’s not forget – both categories of non-citizens also enjoy the less tangible but no less significant benefits of living in a freedom-loving democracy that, however flawed, ensures that power is exercised through the rule of law, not arbitrarily. Indeed, isn’t that largely why they’re here in the first place?

But most disturbing were two other categories of arguments – the first because it reflected absolutely no interest in political values central to the country’s historic success, the second because it suggested unmistakable contempt for these values.

This indifference – or what certainly sounded like it – came from the measure’s sponsor, Council Member Marsha Dixon, and was expressed after I described the legislation as a perfect example of poor governance. As I see it, a politician takes it on him or herself to solve a problem that’s been proactively identified by no one else in the town (even the non-citizens), according to all available evidence, and thus to fix a local political culture that has showed no signs of being broken.

Dixon’s response? (This is a paraphrase, since the official minutes of the meeting haven’t yet been posted.) She thought the town’s population had “evolved” (that I remember for sure), and therefore its voting rules needed to evolve accordingly.

But there’s evolution and there’s evolution. And Dixon’s version simply ignored one of the most important lessons taught by the Founding Fathers: The only hope for the long-term survival and health of an American democracy worth preserving is creating and nurturing a community of shared democratic values. And achieving this goal inevitably requires a process of assimilating immigrants that is inescapably protracted if it to be taken seriously.

Hence the fears expressed by Thomas Jefferson in 1782 about the encouragement of mass immigration:

“It is for the happiness of those united in society to harmonize as much as possible in matters which they must of necessity transact together. Civil government being the sole object of forming societies, its administration must be conducted by common consent. Every species of government has its specific principles. Ours perhaps are more peculiar than those of any other in the universe. It is a composition of the freest principles of the English constitution, with others derived from natural right and natural reason. To these nothing can be more opposed than the maxims of absolute monarchies. Yet, from such, we are to expect the greatest number of emigrants. They will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty. These principles, with their language, they will transmit to their children. In proportion to their numbers, they will share with us the legislation. They will infuse into it their spirit, warp and bias its direction, and render it a heterogeneous, incoherent, distracted mass.”

George Washington shared many of these concerns, and believed that only exposure to American ways – a process that he suggested could take generations – could mitigate them:

“My opinion, with respect to emigration, is, that except of useful mechanics and some particular descriptions of men or professions, there is no need of encouragement, while the policy or advantage of its taking place in a body (I mean the settling of them in a body) may be much questioned; for, by so doing, they retain the Language, habits and principles (good or bad) which they bring with them—Whereas by an intermixture with our people, they, or their descendants, get assimilated to our customs, measures and laws:—in a word, soon become one people.”

Alexander Hamilton has been portrayed in the recent blockbuster musical as a champion of Open Borders and immigrants’ rights, agreed with Jefferson and Washington, and argued strongly in 1802 against a (Jefferson) proposal to completely eliminate a fourteen-year requirement for naturalization (stemming from widespread alarm about excessive foreign influence in American affairs at a time when the new nation was threatened by both British and French ambitions). Alluding to those resulting insecurities and tensions, Hamilton allowed that

“The present law was merely a temporary measure adopted under peculiar circumstances and perhaps demands revision. But there is a wide difference between closing the door altogether and throwing it entirely open; between a postponement of fourteen years and an immediate admission to all the rights of citizenship. Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of at least a probability of their feeling a real interest in our affairs. A residence of at least five years ought to be required.”

Riverdale Park Council Member Dixon’s threadbare 45-day residency requirement demonstrates just how unconcerned about this history, and these essential considerations, so many of our politicians have become – as well as how thoughtless.

Nevertheless, her arguments at least didn’t explicitly scorn the view that the Founders’ deserve any hearing. That belief was expressed by several town residents who spoke in favor of expanding the franchise. Responding to my summary of this history, one youngish woman dismissed the Founders as figures who favored denying women the vote and treating enslaved African-Americans as three-fifths of a person (as stated in the Constitution’s Article I, Section 2) for the purposes of allotting the number of Congress members for each state. (Hamilton, of course, was “accused” by many contemporaries of having a mixed race background). A similarly youngish man smirked that, he “had no idea what was in the minds of the Founding Fathers,” and suggested he didn’t especially care.

This is of course a classic instance of “presentism” – the mistake of judging historical figures entirely by contemporary standards. Worse, such sneering overlooks how leaders whose views on race and gender would of course (rightly) be regarded today as racist and sexist nonetheless recognized that times could change momentously for the new nation – and included in their new nation’s organizing framework procedures for approving comparably momentous changes.

Moreover, similar views have been expressed by someone who wasn’t a slaveholder or sexist. In fact, he’s a deserved icon of American progressivism – early twentieth century Supreme Court Justice Louis Brandeis. In a 1915 speech with a title – “True Americanism” – whose use by the left half of the political spectrum these days would be almost inconceivable, Brandeis spoke at length on the importance of assimilation.

He was no simple melting pot advocate. In fact, Brandeis explicitly stated that:

“America has believed that we must not only give to the immigrant the best that we have, but must preserve for America the good that is in the immigrant and develop in him the best of which he is capable. America has believed that in differentiation, not in uniformity, lies the path of progress. It acted on this belief; it has advanced human happiness, and it has prospered.”

But Brandeis (whose parents were foreign born) also insisted that immigrants undergo Americanization, and that at its core, this concept entailed ensuring that a newcomer’s “interests and affections have become deeply rooted here. And we properly demand of the immigrant even more than this. He must be brought into complete harmony with our ideals and aspirations and cooperate with us for their attainment. Only when this has been done, will he possess the national consciousness of an American.”

Brandeis was emphatically optimistic that this task could be accomplished – not least because he credited many immigrants are “already truly American in this most important sense; who has long shared our ideals and who, oppressed and persecuted abroad, has yearned for our land of liberty and for the opportunity of abiding in the realization of its aims.”

But Brandeis also understood that the “E pluribus” (out of many) part of America’s national motto needed to become some meaningful form of “unum” (one) If only Riverdale Park – and all the other jurisdictions in Maryland and elsewhere in the United States that have either jumped on this bandwagon or are actively mulling this step – weren’t acting so determined to evolve beyond that vital ideal, too.