Im-Politic: Trump-ism Without Trump for America as a Whole?

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"Defund the Police", allies, CCP Virus, China, climate change, coronavirus, court packing, COVID 19, Democrats, election 2020, enforcement, Executive Orders, filibuster, Green New Deal, Huawei, human rights, Im-Politic, Immigration, Joe Biden, judiciary, lockdowns, mask mandate, masks, metals, multilateralism, Muslim ban, Phase One, progressives, Republicans, sanctions, Senate, shutdowns, stimulus, Supreme Court, tariffs, taxes, Trade, trade wars, Trump, unions, Wuhan virus

Since election day, I’ve spent some time and space here and on the air speculating about the future of what I called Trump-ism without Donald Trump in conservative and Republican Party political ranks. Just this weekend, my attention turned to another subject and possibility: Trump-ism without Mr. Trump more broadly speaking, as a shaper – and indeed a decisive shaper – of national public policy during a Joe Biden presidency. Maybe surprisingly, the chances look pretty good.

That is, it’s entirely possible that a Biden administration won’t be able to undo many of President Trump’s signature domestic and foreign policies, at least for years, and it even looks likely if the Senate remains Republican. Think about it issue-by-issue.

With the Senate in Republican hands, there’s simply no prospect at least during the first two Biden years for Democratic progressives’ proposals to pack the Supreme Court, to eliminate the Senate filibuster, or to recast the economy along the lines of the Green New Deal, or grant statehood Democratic strongholds Puerto Rico and the District of Columbia. A big tax increase on corporations and on the Biden definition of the super-rich looks off the table as well.

If the Senate does flip, the filibuster might be history. But big Democratic losses in the House, and the claims by many veterans of and newcomers to their caucus that those other progressive ambitions, along with Defunding the Police, were to blame, could also gut or greatly water down much of the rest of the far Left’s agenda, too.

CCP Virus policy could be substantially unchanged, too. For all the Biden talk of a national mask mandate, ordering one is almost surely beyond a President’s constitutional powers. Moreover, his pandemic advisors are making clear that, at least for the time being, a sweeping national economic lockdown isn’t what they have in mind. I suspect that some virus economic relief measures willl be signed into law sometime this spring or even earlier, but they won’t carry the total $2 trillion price tag on which Democratic House Speaker Nancy Pelosi seems to have insisted for months. In fact, I wouldn’t rule out the possibility of relief being provided a la carte, as Congressional Republicans have suggested – e.g., including popular provisions like some form of unemployment payment bonus extension and stimulus checks, and excluding less popular measures like stimulus aid for illegal aliens.

My strong sense is that Biden is itching to declare an end to President Trump’s trade wars, and as noted previously, here he could well find common cause with the many Senate Republicans from the party’s establishment wing who have never been comfortable bucking the wishes of an Offshoring Lobby whose campaign contributions it’s long raked in.

Yet the former Vice President has promised his labor union supporters that until the trade problems caused by China’s massive steel overproduction were (somehow) solved, he wouldn’t lift the Trump metals tariffs on allies (which help prevent transshipment and block these third countries from exporting their own China steel trade problems to the United States) – even though they’re the levies that have drawn the most fire from foreign policy globalists and other trade and globalization zealots.

As for the China tariffs themselves, the latest from the Biden team is that they’ll be reviewed. So even though he’s slammed them as wildly counterproductive, they’re obviously not going anywhere soon. (See here for the specifics.) 

Later? Biden’s going to be hard-pressed to lift the levies unless one or both of the following developments take place: first, the allied support he’s touted as the key to combating Beijing’s trade and other economic abuses actually materializes in very convincing ways; second, the Biden administration receives major Chinese concessions in return. Since even if such concessions (e.g., China’s agreement to eliminate or scale back various mercantile practices) were enforceable (they won’t be unless Biden follows the Trump Phase One deal’s approach), they’ll surely require lengthy negotiations. Ditto for Trump administration sanctions on China tech entities like the telecommunications giant Huawei. So expect the Trump-ian China status quo to long outlast Mr. Trump.

Two scenarios that could see at least some of the tariffs or tech sanctions lifted? First, the Chinese make some promises to improve their climate change policies that will be completely phony, but will appeal greatly to the Green New Deal-pushing progressives who will wield much more power if the Senate changes hands, and who have demonstrated virtually no interest in China economic issues. Second, Beijing pledges to ease up on its human rights crackdowns on Hong Kong and the Muslims of Xinjiang province. These promises would be easier to monitor and enforce, but the Chinese regime views such issues as utterly non-negotiable because they’re matters of sovereignty. So China’s repressive practices won’t even be on the official agenda of any talks. Unofficial understandings might be reached under which Beijing would take modest positive steps or suspend further contemplated repression. But I wouldn’t count on such an outcome.

Two areas where Biden supposedly could make big decisions unilaterally whatever happens in the Senate, are immigration and climate change. Executive orders would be the tools, and apparently that’s indeed the game plan. But as Mr. Trump discovered, what Executive Orders and even more routine adminstrative actions can do, a single federal judge responding to a special interest group’s request can delay for months. And these judicial decisions can interfere with presidential authority even on subjects that for decades has been recognized as wide-ranging – notably making immigration enforcement decisions when border crossings impact national security, as with the so-called Trump “Muslim ban.”

I know much less about climate change, but a recently retired attorney friend with long experience litigating on these issues told me that even before Trump appointee Amy Coney Barrett joined the Supreme Court, the Justices collectively looked askance on efforts to create new policy initiatives without legislating. Another “originalist” on the Court should leave even less scope for ignoring Congress.

The bottom line is especially curious given the almost universal expectations that this presidential election would be the most important in recent U.S. history: A deeply divided electorate could well have produced a mandate for more of the same – at least until the 2022 midterms.

Im-Politic: VP Debate Questions That Should be Asked

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1619 Project, African Americans, Barack Obama, Biden, budget deficits, CCP Virus, censorship, China, Confederate monuments, Constitution, coronavirus, COVID 19, education, election 2020, Electoral College, filibuster, Founding Fathers, free speech, healthcare, history, history wars, Im-Politic, inequality, investment, Kamala Harris, Mike Pence, national security, Obamacare, police killings, propaganda, protests, racism, riots, semiconductors, slavery, spending, Supreme Court, systemic racism, Taiwan, tariffs, tax cuts, taxes, Trade, trade war, Trump, Vice Presidential debate, Wuhan virus

Since I don’t want to set a record for longest RealityChek post ever, I’ll do my best to limit this list of questions I’d like to see asked at tonight’s Vice Presidential debate to some subjects that I believe deserve the very highest priority, and/or that have been thoroughly neglected so far during this campaign.

>For Vice President Mike Pence: If for whatever reason, President Trump couldn’t keep the CCP Virus under control within his own White House, why should Americans have any faith that any of his policies will bring it under control in the nation as a whole?

>For Democratic candidate Senator Kamala Harris: What exactly should be the near-term goal of U.S. virus policy? Eliminate it almost completely (as was done with polio)? Stop its spread? Slow its spread? Reduce deaths? Reduce hospitalizations? And for goals short of complete elimination, define “slow” and “reduce” in terms of numerical targets.

>For Pence: Given that the administration’s tax cuts and spending levels were greatly ballooning the federal budget deficit even before the virus struck, isn’t it ridiculous for Congressional Republicans to insist that total spending in the stimulus package remain below certain levels?

For Harris: Last month, the bipartisan Congressional Problem Solvers Caucus unveiled a compromise stimulus framework. President Trump has spoken favorably about it, while stopping short of a full endorsement. Does Vice President Biden endorse it? If so, has he asked House Speaker Nancy Pelosi to sign on? If he doesn’t endorse it, why not?

For Pence: The nation is in the middle of a major pandemic. Whatever faults the administration sees in Obamacare, is this really the time to be asking the Supreme Court to rule it un-Constitutional, and throw the entire national health care system into mass confusion?

For Harris: Would a Biden administration offer free taxpayer-financed healthcare to illegal aliens? Wouldn’t this move strongly encourage unmanageable numbers of migrants to swamp U.S. borders?

For Pence: President Trump has imposed tariffs on hundreds of billions of dollars’ worth of Chinese exports headed to U.S. markets. But U.S. investors – including government workers’ pension funds – still keep sending equally large sums into Chinese government coffers. When is the Trump administration finally going to plug this enormous hole?

For Harris: Will a Biden administration lift or reduce any of the Trump China or metals tariffs. Will it do so unconditionally? If not, what will it be seeking in return?

For both: Taiwan now manufactures the world’s most advanced semiconductors, and seems sure to maintain the lead for the foreseeable future. Does the United States now need to promise to protect Taiwan militarily in order to keep this vital defense and economic knowhow out of China’s hands?

For Pence: Since the administration has complained so loudly about activist judges over-ruling elected legislators and making laws themselves, will Mr. Trump support checking this power by proposing term limits or mandatory retirement ages for Supreme Court Justices? If not, why not?

For Harris: Don’t voters deserve to know the Biden Supreme Court-packing position before Election Day? Ditto for his position on abolishing the filibuster in the Senate.

>For Pence: The Electoral College seems to violate the maxim that each votes should count equally. Does the Trump administration favor reform? If not, why not?

>For Harris: Many Democrats argue that the Electoral College gives lightly populated, conservative and Republican-leaning states outsized political power. But why, then, was Barack Obama able to win the White House not once but twice?

>For Pence: Charges that America’s police are killing unarmed African Americans at the drop of a hat are clearly wild exaggerations. But don’t you agree that police stop African-American pedestrians and drivers much more often than whites without probable cause – a problem that has victimized even South Carolina Republican Senator Tim Scott?

For Harris: Will Biden insist that mayors and governors in cities and states like Oregon and Washington, which have been victimized by chronic antifa violence, investigate, arrest and prosecute its members and leaders immediately? And if they don’t, will he either withhold federal law enforcement aid, or launch such investigations at the federal level?

For Pence: Why should any public places in America honor Confederate figures – who were traitors to the United States? Can’t we easily avoid the “erasing history” danger by putting these monuments in museums with appropriate background material?

For Harris: Would a Biden administration support even peacefully removing from public places statues and monuments to historic figures like George Washington and Thomas Jefferson because their backgrounds included slave-holding?

For both: Shouldn’t voters know much more about the Durham Justice Department investigation of official surveillance of the Trump campaign in 2015 and 2016 before Election Day?

For both: Should the Big Tech companies be broken up on antitrust grounds?

For both: Should internet and social media platforms be permitted to censor any form of Constitutionally permitted speech?

For Pence: Doesn’t the current system of using property taxes to fund most primary and secondary public education guarantee that low-income school children will lack adequate resources?

For Harris: Aren’t such low-income students often held back educationally by non-economic factors like generations of broken families and counter-productive student behavior, as well as by inadequate school funding – as leading figures like Jesse Jackson (at least for one period) and former President Obama have claimed?

For Pence: What’s the difference between the kind of “patriotic education” the President says he supports and official propaganda?

For Harris: Would a Biden administration oppose local school districts using propagandistic material like The New York Times‘ U.S. history-focused 1619 Project for their curricula? Should federal aid to districts that keep using such materials be cut off or reduced?

Now it’s your turn, RealityChek readers! What questions would you add? And which of mine would you deep six?

Making News: Podcast Now On-Line of Last Night’s NYC Radio Appearance

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court packing, FBI, filibuster, Frank Morano, Kamala Harris, Making News, Mike Pence, rock music, Supreme Court, The Other Side of Midnight, Trump-Russia, Vice Presidential debate, WABC AM, Yankees

I’m pleased to announce that the podcast is now on-line of my appearance last night on Frank Morano’s “The Other Side of Midnight” program on New York City’s WABC-AM radio station. For a – really – wide-ranging discussion encompassing tonight’s Vice Presidential debate, the Supreme Court, rock music, the economy, the latest revelations about FBI misdeeds, and of course the Yankees, click here and then on the “Staten Island” link. My segment beings at about the 20:30 mark.

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

Im-Politic: The Supreme Court Mess II

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Antonin Scalia, Constitution, diversity, Federal Reserve, identity politics, Im-Politic, Joe Biden, Robert Bork, Ruth Bader Ginsburg, Senate, Supreme Court, term limits, Trump

Since the Supreme Court Mess that I analyzed yesterday really is a Supreme Court Mess and not simply a Ruth Bader Ginsburg Mess, today let’s dive right into problems with how Americans deal with the top of the federal government’s judiciary branch other than the means of picking the late Justice’s replacement.

First and maybe most obvious comes an inconsistency in the position of the Democrats and especially of their presidential nominee this year, former Vice President Joe Biden. From that party and candidate comes the insistence that it’s wrong for President Trump to choose a new Justice so close to the November election because it could strap the country with a new Justice and Court line-up that flout the popular will that would be revealed by a Biden win on major policy issues (like abortion or the future of Obamacare).

Leaving aside the (clear un-) Constitutionality of this position, it’s not entirely unreasonable. But it would become much stronger substantively, and much less vulnerable to charges of hypocrisy and pure partisanship, if Biden enabled voters to assess their actual Supreme Court-related choices at least as clearly as Mr. Trump has with the list of Ginsburg replacement possibilities he’s released. Biden has promised that he’d put forward an African American woman (though maybe not this time?). But which ones is he considering (if it is this time)? He hasn’t told us. So the criterion of fairness should oblige him to release his own list ASAP, to permit voters to weigh the alternatives fully. After all, even if they don’t like any of the Trump candidates (which the President has subsequently announced will be restricted to women), Americans might like Biden’s choices even less.

The second problem, though, has precisely to do with the identity politics of Supreme Court nominations that both Biden and the President are practicing. Not that I have any inherent objection to another female Justice or the first African American female Justice. But these announcements raise any number of divisive questions that Americans could do without in these divisive times. Just a few examples:

>During the Obama years, there was much talk that the Court needed an Asian-American Justice. (Full disclosure: Denny Chin, the federal appeals court judge mentioned here, is a college friend.) So many valid reasons were cited (e.g., they’re “the fastest growing population of color in the country, with a voting electorate expected to double in the next 25 years”). Exactly when, therefore, did this proposal become obsolete? And why?

>Regarding the Biden pledge to nominate an African American woman, that would move the Court’s makeup closer to the gender composition of the entire U.S. population, so this promise can be justified by the goal of making the Court “look like America.” (So would the President’s promise to choose a woman whose race or ethnic background he hasn’t specified.) But an African American woman would bring the number of African Americans on the Court to two (along with Clarence Thomas). Since they amount to only some 13 percent of all Americans, they’d be way over-represented.

>The same outcome would result from if Mr. Trump picks Cuban-American federal appeals court judge Barbara Lagoa from Florida. She’d be the second Latino woman on the Court (along with Sonia Sotomayor). But that decision would create another over-representation situation (though not one as sizable as those for African Americans, at least in the early part of a Biden administration). And what about Latino men? They’d remain completely shut out. How come?

Again, I agree broadly with the idea that the leadership ranks of major American institutions, especially public, but also private, should be diverse enough in terms of all the major population categories to make sure that the widely varying experiences of these groups contribute to decision-making. In my view, that’s a major plus, since the idea of objectively optimal policies or practices is impossibly naive, and because the choices made by public institutions are bound to affect different groups differently.

But although all these stakeholders deserve a say, when diversity – and especially specific diversity formulas – become explicit, you unfortunately enter a world in which the kinds of potentially ugly identity politics-related questions just mentioned tend to come to the fore, and vital issues of merit tend to move to the rear.

As a result, though doing so is somewhat hypocritical, certain kinds of fictions do serve important purposes. So I hope that from now on, diversity promises for public appointments at least become less explicit, and the results become the product of informal political pressures and other considerations. (Privately owned institutions should be able to do whatever they want within the bounds of anti-discrimination laws. Even so, diversity can benefit them, too, since especially in the case of businesses, they’re trying to win and keep customers, and diverse leadership ranks are likely to provide important insights into appealing to various population groups.)

The third big part of the Supreme Court Mess: The American political system clearly has moved way too far away from the crucial idea that, since elections matter, Presidents have the right to appoint whoever they wish to fill positions the Constitution entitles them to fill unless their choices are flagrantly incompetent, or utterly dismissive of Constitutional and ther legal standards, or ethically or criminally compromised. If Senators simply don’t agree with nominees on legitimate Constitutional and legal controversies – too bad.

Thankfully, this idea isn’t completely dead. For example, three Democrats did vote to approve Trump Supreme Court nominee Neil M. Gorsuch in April, 2017. At the same time, three isn’t much. Vastly more encouraging: In August, 1993, Ginsburg was confirmed by a 96 to 3 vote (one Senator abstained), which means that plenty of Republicans supported here even though she surely wasn’t their legal and Constitutional cup of tea.

At the same time, Republicans controlled the Senate when Gorsuch was considered, and Democrats enjoyed a majority when Ginsburg came up. So a better example of this ideal would be the 1990 vote in favor of David H. Souter. He was a George H.W. Bush nominee, yet won the nod of a Democratic Senate – in a 90-9 landslide. (This time, one Senator didn’t vote.) 

Or was it? After all, Souter arguably received this margin precisely because his views on major subjects were so unknown – largely because his lower court opinions and other legal writings were so plain vanilla or so scarce or both. As widely (and convincingly) supposed, Souter (and his supporters) had learned the big lesson of the failed nomination of Robert Bork: Don’t leave a conspicuous “paper trail.”

Bork, whose bid for the Court failed in 1987, was rejected by a Democratic-controlled Senate largely because his prodigious writings were so controversial. His reputation as a Watergate-era villain surely didn’t help, either.

But were Bork’s views so out of the mainstream, as his opponents charged? Just a year earlier, another doctrinaire judicial conservative nominated by President Ronald Reagan – Antonin Scalia – was elevated to the Court. And he won unanimously. (Two Senators didn’t vote.)  But that year, Republicans ran the upper chamber.

As a result, it’s easy to conclude that the tradition of “Borking” is very much alive, and that overly political Supreme Court nomination fights will continue for the time being.

The final big aspect of the Supreme Court mess: This drift away from the respect for legitimate presidential prerogatives no doubt results from both the prominent role the Court has played in deciding issues (like Obamacare) that elected politicians should be figuring out, and this prominence, and the towering stakes thereby created, in turn stem from the lifetime nature of Court terms. In other words, once a Justice is confirmed, he or she can serve literally for decades, and for just as long decisively influence policy decisions that shouldn’t be legalized.

Therefore, although I’m super-hesitant to support Constitutional changes in response to developments that are probably transient, I fear that the too often vicious and hyper-partisan nature of American politics is here to stay for the foreseeable future.  Therefore, I’d support at least considering an amendment that would limit the Justices’ terms.  One possible model: the Federal Reserve, another government body that’s supposed to be shielded from politics, and whose seven Board members serve for fourteen years, and whose Chair and Vice Chair are limited to four (although this curb doesn’t count against their Board service).

Not that I love the Fed’s degree of autonomy.  But the temperature of national politics clearly needs to be lowered to safer levels, and term limits on the increasingly supremely powerful Supreme Court are the best place to start I can think of.     

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.

Im-Politic: A Worrisome Hole in U.S. Free Speech Protections

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civil liberties, Constitution, First Amendment, free speech, freedom of expression, Im-Politic, mob rule, Oregon, peaceful protests, Portland, protests, Supreme Court

However crazy it sounds, an idea that came to me in high school bears heavily on the burst of recent, overlapping national controversies about free speech, peaceful protests, and political violence. In fact, it spotlights what looks like a gaping, increasingly important, and increasingly worrisome hole in U.S. Constitutional protections not only for legitimate expressions of opinions, but for exercises of other significant liberties.

The idea: That public authorities have an affirmative obligation to protect the expression of unpopular and even disgusting viewpoints even, and especially if, they might ignite violent reactions, and when those violent reactions were taking place.

You might think that this is longstanding Constitutional principle, policy, and practice on the federal, state, and local levels, but that’s not so. And the result is nothing less than an invitation to mob rule that thankfully hasn’t been taken up often during American history, but seems all too tempting nowadays.

I first became aware of the problem when my senior year history class focused for a while on civil liberties and we read about a 1949 Supreme Court case called Terminiello v. City of Chicago. The question at hand was whether local authorities could prosecute a speaker expressing views in a public place to that created “a condition of unrest, or…a disturbance.”

Writing for the majority, Justice William O. Douglas, a staunch defender of civil liberties, argued that the Chicago speaker, a suspended and indeed horrifically bigoted Catholic priest named Arthur Terminiello, and others like him, were entitled under the First Amendment to voice opinions even which (in the words of the presiding local judge) “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”

The Douglas opinion, in my view, was especially valuable because it held that no one – either private citizens outraged for whatever reason, morally legitimate or not, or government at any level – could censor, otherwise prevent during the fact, or punish the expression of any view belonging in the category of Constitutionally protected speech. As a result, the majority wound up expanding that realm of protected speech.

Unfortunately, this legal standard only lasted for some two years. In a 1951 case called Feiner v. New York, the Supreme Court ruled that, as described in this summary, “The First Amendment permits the government to take action against speech when there is a clear and present danger that it will cause a disturbance of the peace.”

In the 1969 case Brandenberg v. Ohio (about two years before my high school class), the Justices seemed to narrow the grounds for suppressing speech that created this kind of “clear and present danger” (a broader category of circumstances that could justify curbing speech and other forms of expression) to speech likely to incite “imminent lawless action.”

But it was only in 1977 that a truly decisive blow seems to have been struck against what I consider a blaming the victim approach when the Court ruled that government couldn’t prevent the expression of most repugnant ideas for fear of threatening public order before the fact either. The case was called National Socialist Party of America v. Village of Skokie, and upheld an Illinois Supreme Court decision that prevented a heavily Jewish municipality from preventing a demonstration by a group of (as the name makes clear) Nazis. udeupheld the defended

All the same, the group of questions I wound up asking in high school about Terminiello remains unanswered. Specifically, if hateful ideas like Terminiello’s are Constitutionally protected speech, didn’t government’s First Amendment obligations logically extend further than affirming his right to express them amid the threat or use of violence? Wasn’t government Constitutionally obliged to make sure that such expression actually take place – for example, responding to threats of violent responses by declaring that such actions themselves would be prosecuted, and following through? Wouldn’t failing to require these protective actions too often threaten to turn the act of expressing protected speech into a test of physical courage, and thereby convince too many who hold unpopular views to hold back?

Which brings us to the tragic killing last weekend in Portland, Oregon of right-wing protester Aaron Danielson amid a spate of violence that resulted from the entry into the city’s downtown of a motor vehicle caravan carrying many individuals of this ilk.

The caravan has been widely described as needlessy provocative, but the grounds seem shaky at best. According to some Mainstream Media accounts, the vehicles “descended on the city and sparked confrontations with Black Lives Matter counterprotesters.” But this phrasing raises more questions than answers. For example, what exactly about the caravan’s trip “sparked confrontations”? Were the opening clashes completely simultaneous? If not, who acted first?

One answer – and revealingly, from the now-conspicuously woke New York Times – is that “As the vehicles displaying Trump flags and signs enter downtown Portland, protesters [gathered] along the street to confront the caravan and in some cases block its route.” I’ve yet to see any accounts blaming the caravan-ers for starting the clashes.

The caravans could legitimately be blamed for knowingly, and even illegally, inflaming an already volatile situation. But no Portland or Oregon officials have declared that the act of driving through downtown itself was illegal, or even constituted a permit-less protest. Certainly, the city’s police had no plans to stop it.

And why would they? Since when has transiting a public thoroughfare not explicitly declared off-limits by the authorities been “provocative,” much less of dubious legality? Which is where the Terminiello point comes in.

The authorities in Portland knew beforehand that the caravan would take place. Their “goal” was to restrict their route to surrounding Interstates – and away from that downtown core. But what the heck is that about? They were afraid of confrontations? If so, didn’t they have an affirmative obligation to make sure that this event could take place safely? In fact, why wasn’t protection offered in advance? And P.S.: These questions pertain whether the caravan was considered by the police to be a protest, or simply an attempt to visit a public place. Finally, regarding the right to access public spaces like downtown Portland for lawful reasons – which seems like a pretty foundational civil right – why in the first place has the area’s government permitted these blocks to become a dangerous near-combat zone for months and even longer?

Of course, decisions about most effectively allocating available resources in a given situation allocation – which need to be left up to the authorities – will always prevent police or other law enforcement agencies from protecting every exercise of Constitutionally protected freedoms adequately. The challenge, moreover, is especially great in these fraught times. At the same time, what better argument could be made for more, rather than fewer, law enforcement assets?

More important, though, the notions that travel through a public street as such, whether simply expressing an agenda or not, amounts to a provocation that is somehow illegal or even improper, and that government has no duty actively to safeguard it, should be completely unacceptable to everyone who values free expression. Because if legitimate authority doesn’t make sure that threats or acts of violence don’t shut down free speech and the exercise of similar rights, you can be certain that the mob – or mobs – will quickly take notice.

Im-Politic: Why Illegal Aliens Feel So Entitled

Tags

Constitution, Equal Protection Clause, Fourteenth Amendment, ignorance of the law, illegal aliens, Im-Politic, immigrants, Immigration, Supreme Court

At first glance, Thursday’s Supreme Court decision holding that an illegal alien couldn’t be convicted for possessing a firearm because he didn’t understand his status looks like the height of illegals’ coddling at the expense of common sense – not to mention obvious public safety considerations, and the legal principle that “ignorance of the law is no excuse” for violating it.

In fact, although the 7-2 ruling is defensible on the narrowest possible legal grounds (grounds that are entirely legitimate and time-honored bases for Court decisions, especially for believers in what’s known as the doctrine of judicial restraint), it reveals something at least as disturbing: how thoroughly and dangerously recent decades of lax pre-Trump immigration policies have fostered a sense of entitlement among illegals. And only slightly less disturbing: The law itself that’s in question contains its own evidence of illegal aliens coddling.

The majority’s opinion turned on the specific question of whether a law barring illegal aliens from owning firearms permits conviction only if the defendant “knowingly” violates the statute. Although this conclusion seems to overlook completely the venerable “ignorance of the law” maxim, as the majority importantly reminds, this principle (like most others worth following) isn’t absolute. I also find convincing the argument that the statute’s wording makes clear that, in this particular case, lawmakers intended the “knowingly” criteria to apply to illegal aliens’ awareness of their immigration status under the law.

But at this point, I get off the boat policy-wise. Because how on earth does any illegal alien in the United States who can pass a sanity test get the idea that he can live his or her life without being acutely aware of their immigration status? Similarly, why did the defendant believe that he had just as much of a right to own a (substantially regulated) deadly weapon as any legal American resident? Especially when he had just been told that his legal immigration status was hanging by a threat – at best. And if you think that the second and third questions are exaggerations, get a load of this description (from the dissenting opinion) of the defendant’s actions after the college he was enrolled him told him by email that, because of poor academic performance, “he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be terminated”:

“Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days.”

To me, the answer obviously is that for so long it has been so easy to enter the United States illegally, and for legal entrants to stay once their visas have expired, that many believe that they have every right to be in the country and to be treated exactly like legal residents and citizens.

In some instances, they’re correct. Principally, the Supreme Court has ruled that the Equal Protection Clause of the Constitution’s Fourteenth Amendment means that everyone in the United States at any given moment, no matter what the conditions, is entitled to the full range of protections offered by U.S. law. But these convictions also frequently extend to assumptions that illegals are also due any number of welfare state benefits, privileges like drivers’ licenses, and even the right to vote.  And of course, these assumptions have constantly be aided and abetted – and often created by – Open Borders-oriented illegal aliens’ advocacy groups and even state and local governments.

It’s equally obvious that the federal gun ownership law (which is found starting on p. 13 of the opinion linked above), unwittingly or not, betrays the illegals-coddling mindset mentioned above. After all, why specify that illegals need to violate the statute “knowingly.” They’re not supposed to be here in the first place. Systematic knowledge about them is lacking – including criminal records in their home countries. Why should they be granted any right to possess a gun under any circumstances?

So it’s clearly time to rewrite the law – especially since the “knowingly” standard is even more absurd for many other categories of individuals it denies gun ownership, like “fugitives from justice” and recipients of court orders restraining them from harming or harassing their “intimate partners” and the children thereof.

After all, one of the clearest lessons about immigration policies taught over the decades since the 1986 amnesty is that the messages sent by Washington’s words and deeds greatly influence foreigners’ willingness to enter the United States illegally. If a reasonable degree of control over U.S. borders is to be reestablished, it’s time to send out a new one: From now on, within the legal bounds set by the Equal Protection Clause, American law is going to start making it harder for illegal aliens to behave in ways that endanger citizens and other legal residents, not easier.

Im-Politic: On a Parkland Applicant, Harvard Flunks the Character Test

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adolescents, character, college admissions, colleges, Earl Warren, Florida, forgiveness, gun violence, Harvard University, higher education, Hugo Black, Im-Politic, Japanese internment, Ku Kux Klan, Kyle Kashuv, Parkland, racism, school shootings, Supreme Court, universities, World War II

The more I read and think about Harvard University’s decision to rescind admission to Kyle Kashuv because this survivor of the Parkland, Florida high school mass shooting last year made a variety of racist and other offensive and bigoted remarks in a digital document two years ago, when he was all of sixteen years old, the more outraged I get. And the more convinced I become that Harvard pounced upon an excuse to respond to pressure to punish Kashuv for refusal to jump aboard the gun control bandwagon.

Let’s get one aspect of this incident clear right away. Kashuv’s remarks were genuinely appalling. But for any fair-minded observer, the mitigating factors are overwhelming. He was in mid-adolescence – when even good kids often get tempted to do and say lots of stupid and even cruel things. His remarks were so loopy that they even included anti-semitic slurs – even though Kashuv is Jewish. They were made in private digital communications to a handful of apparently equally stupid friends and other schoolmates – i.e. no one has ever accused him of voicing such sentiments in public, an act that would create actual victims. He has admitted responsibility and apologized profusely. Further, nothing known about him so far – and clearly, folks have been looking, since he was outed by a fellow Marjory Stoneham Douglas student who apparently opposed his views on guns – indicates that these remarks ever reflected his actual views, much less do so now.

In fact, overall, Kashuv’s behavior has been far more honorable than Harvard’s handling of his character issues. To its credit, the university first responded to “media reports discussing offensive statements allegedly authored” by Kashuv by noting the morals clause that’s one of its admissions considerations and asking for “a full accounting” so that the matter could be “considered.” (The best source for these and the following Kashuv and Harvard statements is Kashuv’s Twitter feed:  @KyleKashuv.   

But Harvard’s professed open-mindedness was actually a sham, as is clear from its June 3 letter to Kishuv following his apology and explanation, and rejecting his appeal. The admissions dean William R. Fitzsimmons told Kashuv that he and his colleagues “appreciated [his] candor and…expressions of regret” and “discussed [them] at length.” And they bounced him anyway.

It’s disturbing enough that Harvard refused to accept a lengthy apology for a 16-year old’s misdeeds, an equally lengthy promise to learn and grow, and evidence of actually acting on this promise (in the form of reaching out to the university’s diversity office for guidance and counseling). At least as disturbing is seeing this inflexibility at an educational institution – which presumably is in the business of human improvement and focuses on teenagers, who surely represent many of the most improvable individuals on the planet.

As Kashuv himself has wisely noted, Harvard’s actions also raise broad moral questions about whether “we live in a society in which forgiveness is possible or mistake brand you as irredeemable.” I’d add that the odds of making offensive comments in particular have risen dramatically in recent years, since the amped up coarsening of culture and society is bound to trickle (and even flood) down to the young. Moreover, given how unpopular his guns views tend to be in the left-leaning political cultures on so many college campuses, and especially at so-called elite institutions like Harvard, the school’s treatment of Kashuv reeks of a politicized admissions process.

At the same time, the potential practical consequences of such gun jumping (no pun intended) should be sobering. I’m thinking in particular of Hugo Black. This mid-twentieth century Supreme Court Justice belonged to the Ku Kux Klan as a young adult. He was never especially apologetic, either. But on the High Court, he became one of its staunchest proponents of racial integration and a singular champion of free speech and other individual liberties – for Americans regardless of color.

And don’t forget Earl Warren, Chief Justice of the Court during much of Black’s tenure. As Attorney General and Governor of California during World War II, he was instrumental in carrying out the federal policy of indiscriminately throwing Japanese-Americans into internment camps solely because of their race or ethnicity. Not until his memoirs were published posthumously is there any public record of regret for these actions. Yet as Chief Justice, he became an even more powerful force than Black for racial justice and civil liberties.

The main – and screamingly obvious lessons – it seems to me are:

First, people can evolve even as adults, much less from their childhood and adolescent selves.

Second, the case for affording the benefit of the doubt, especially when the offender is young, and forgiveness is sought, is impressive.

And third, to understand these truths, you sure don’t need a Harvard education.

Im-Politic: Why the Crucial Abortion Debates are (Long) Over

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abortion, abortion rights, Constitution, Gallup, heartbeat bills, Im-Politic, Kaiser Family Foundation, National Opinion Research Center, Pew Research Center, Planned Parenthood of Southeastern Pennsylvania v. Casey, Quinnipiac College poll, Robert G. McCloskey, Roe vs. Wade, Supreme Court

If only most of the major challenges facing Americans were as easy to meet as arriving at a satisfactory compromise over abortion. In fact, in the key respects, the challenge has already been met, as a general consensus is staring the nation in its collective face, has been in place literally for decades, and looks guaranteed to remain solidly in place for the foreseeable future.

Sounds crazy, doesn’t it, given the political and policy brawl that has erupted in recent weeks over a handful of states’ approval of laws dramatically reducing the circumstances in which abortion will remain legal?  But this contention is backed up strongly by the national legal regime regulating abortion right now, by all the polling, and by everything known about how the Supreme Court – which it’s thought on both sides of the issue could well transform the status quo it’s created since its 1973 Roe v. Wade decision – historically has handled such explosive questions. Moreover, abortion is one of those matters in which the politics, the law, and the history powerfully reinforce each other.

Let’s start with the law. The major Supreme Court decisions are of course the Roe case – which established a Constitutional right to abortion but also authorized states to infringe on it in various ways during a pregnancy’s second and third trimesters – but also a ruling in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey case. In it, a 5-4 majority of the Court created a standard to govern such state restrictions on abortion, holding that such measures could not impose an “undue burden” on women seeking abortions that “created a substantial obstacle” to undergoing the procedure “before the fetus attains viability.”

Revealingly, that guideline nicely describes the current U.S. consensus on abortion rights: Women deserve a fundamental right to abortion, but (like most other rights), it’s not absolute. More specifically, the most widely agreed on exceptions involve what are clearly exceptional (and exceptionally tragic) – mainly rape, incest, serious threats to the pregnant woman’s health, and a high likelihood that the new baby would suffer from serious defects. (See this recent Gallup summary for some representative data.)

Still more revealingly: These public attitudes have been remarkably stable over time. At least three separate polls – shown in the aforementioned Gallup summary, by Pew, and by the National Opinion Research Center (NORC) – make this point emphatically.

And at least as important – NORC’s findings show that a sizable gap has existed between public support for the “tragic” exceptions to the right to abortion on the one hand (which have demonstrated at least 70 percent backing for the four decades examined), and other proposed exceptions (whose support generally has remained between 30 percent and 50 percent).

In turn, these legal and political considerations both create towering obstacles even to a Court now featuring a conservative majority overturning either the Roe or the Casey regimes. And least plausible of all is the wish-dream of abortion rights opponents and the nightmare of abortion rights supporters – that the Court bases such a reversal on cases brought deliberately in order to uphold the highly restrictive new state laws. For outlawing abortion even in the aftermath of rape and incest, for example, would seem the epitome of creating a Casey-violating undue burden on the fundamental right to abortion. The various “heartbeat” bills for their part can’t be squared with the Court’s determination in Roe and other decisions since that a fetus isn’t viable until long after the six weeks at which this function can first be detected.

Indeed, such laws repeatedly have been struck down in various courts, and the Supreme Court has refused to consider the two that reached it on appeal. And don’t think it’s a coincidence that the high court’s recent record tracks well with public opinion (including on the heartbeat bills, according to Kaiser Family Foundation and Quinnipiac University survey results presented in this sweeping summary of decades of abortion poll findings).

But couldn’t the Supreme Court’s new conservative majority decide the time is ripe to get rid of Roe and follow-on decisions? Not if it bears any resemblance to its predecessors since the New Deal era. For one of the seminal findings about the Court came back in 1960, in Harvard political scientist Robert G. McCloskey’s classic study, The American Supreme Court. As McCloskey argued compellingly, the Court is most successful when it pays attention to public opinion, and runs into its greatest troubles when it gets too far ahead of or too far behind these attitudes. If you’re skeptical, just think of the tumult that followed the pre-Civil War Dred Scott case and its invalidation of crucial pieces of New Deal legislation during the Great Depression.

None of this is to say that lots of thorny abortion-related decisions will continue to face Americans – like federal funding for Planned Parenthood and other organizations that provide a wide range of women’s health care services, including abortion services; and about what kinds of reproductive health services like birth control religious organizations should be required to provide for female employees in their health insurance plans. And few of them have generated enough polling evidence to identify consensus with any justifiable confidence.

But the broadest, most important abortion-related questions have been decided – especially in the court of public opinion. The procedure will remain a strongly protected Constitutional right early in pregnancy, and a more weakly protected right in later phases. Throughout pregnancies, this right will receive virtually absolute protection in genuinely traumatic circumstances, and be subjected by states to curbs on its availability that don’t “substantially” nullify it in practical terms — and that therefore should not be reflexively condemned as stepping stones to wide-ranging bans.

So abortion rights supporters need to give up on extending strong protections deep into pregnancy. And abortion rights opponents should forget about overturning Roe and Casey. It’s true that medical advances that keep pushing fetal survivability (if not viability without pervasive support) back closer to conception will one day resume adding fuel to the abortion debate fire. And public opinion is by no means set in stone. But for more than forty years since Roe, Americans collectively have been saying that the general abortion debate is over, and the courts have plainly agreed. It’s high time that politicians and activists across the spectrum got the message.

Im-Politic: The Politics of Kavanaugh

Tags

1968 election, 1972 election, 2018 elections, Democrats, George S. McGovern, Im-Politic, Kavanaugh, midterm elections, protesters, Republicans, Richard M. Nixon, Supreme Court, Trump, Vietnam War

Although Brett Kavanaugh has now won confirmation to the Supreme Court, the fallout will resonate for months – and likely longer (even if he does follow my advice and withdraw between now and his swearing in). So some final (for now) thoughts on this debacle:

Principally, at this point it looks like President Trump’s instincts on the politics of the Kavanaugh nomination were better than mine. I feared that sticking with Kavanaugh would accomplish less in firing up the Trump-Republican base (by now, they’re almost identical) than it would harm the GOP’s chances in numerous upcoming midterm elections by alienating and downright antagonizing moderate Republicans (especially upper middle-class women) and independents (of all genders).

The main evidence that Trump – and Kavanaugh stalwarts – were right politically? Polls showing a closing of the so-called enthusiasm gap for these midterms, between Republicans and Democrats – widely seen as a good predictor of voter turnout –  has narrowed in favor of the Republicans. But there’s a twist here: as stated by Senate Majority Leader Mitch McConnell this afternoon, the gap closing was mainly a gift from the Democrats, and the die-hard Kavanaugh opponents comprising a big part of their base. That their hysteria and extreme tactics have undoubtedly turned off many voters in the center looks clear from the recent shift in public opinion in support of the Kavanaugh bid. In fact, I have no doubt that videos of the anti-Kavanaugh protests will be a gift that keeps on giving to Republican candidates from now through election day, in the form of countless campaign ads that will feature them.

Come to think of it, I suspect that the Kavanaugh protests have backfired in the way that comparably angry protests unwittingly sabotaged the anti-Vietnam War movement decades ago. This journal article does an excellent job of showing that the polling data from the late-1960s and early 1970s – when U.S. military involvement in Southeast Asia expanded dramatically, and dissent became more strident and sometimes violent – can support several different interpretations, no doubt because public opinion was understandably confused by this then-unprecedented type of conflict.

But one legitimate interpretation of the findings is that public opinion would have turned against the war much faster had so many Americans, rightly or wrongly, not found the protests and the protesters themselves to be so offensive in so many ways. Surely that’s why the winner of the 1968 presidential election was not a dove, but Richard M. Nixon. His emphasis of his unhappiness with the Johnson Administration’s supposedly muddled approach to the war and strong suggestion that he would break the emerging stalemate in various (often not mutually consistent) ways closely approximated the views of a critical mass of the public.

And just as surely that’s why (along with dramatically declining casualty rates) Nixon was reelected in a landslide over Democrat George S. McGovern, who Republicans portrayed as the champion of “acid, amnesty [for draft-dodgers], and abortion.”

A “Blue Wave” could still wash over Congress this November, but at this point, it’s also entirely possible that on “the morning after,” the big questions dominating American politics will concern whether the Democrats will recognize their Kavanaugh overreach, and whether they can (or want to) start presenting a more appealing face to the electorate over the next two years.

At the same time, the big qualifier remains fully in tact – whether, between now and then, President Trump will finally cross a line that will convince voters that he and his Republican Congressional and gubernatorial supporters truly are unfit for office, and must be thrown out at the next possible opportunity. But if the President’s many disruptive words and even deeds haven’t produced these results so far, this hope looks like an increasingly slim reed on which to hang political success.