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Donald Trump has never made the status quo seem so refreshing

Elections tend to sharpen the contrasts between the parties and their candidates. Every four years as the vote in November approaches, from my perspective, it seems that the Republican presidential candidate – whether it’s Bob Dole, John McCain or Mitt Romney – has never looked so radically menacing. Maybe in the years before the race (and certainly after he lost and no longer had a claim to power), the prior Republican standard bearers occasionally appeared to be reasonable, measured and in the case of Dole and McCain even charming and funny.


This election cycle I have heard conservative commentators say that liberals are hyperventilating over Donald Trump and slapping him with the same outlandish labels just the way they do every presidential election cycle. Hadn’t we declared Romney (or George W. Bush for that matter) an enemy of the state a few short years ago, only now to look back on them charitably, if only to point out the new evil lurking? This year it’s Trump; in four years it may be someone like Paul Ryan receiving hyperbolic, rhetorical shade.

The fact is that Donald Trump is an entirely different beast.

As election day 2012 approached, I feared a Romney presidency would mean the loss of many of President Obama’s greatest achievements: the Affordable Care Act, Wall Street regulation, Marriage Equality, etc.

This year I fear that a Trump presidency would mean the loss of my (and my countrymen’s and women’s) basic constitutional rights and putting the nation that I love on the path toward a fascist dictatorship. How would the liberal constitutional order Madison crafted from Locke, the delicate checks and balances that Jefferson borrowed from Montesquieu and the democratic institutions (from the independent judiciary to the free press, to public universities to social welfare groups) that de Tocqueville so admired in American society hold up to the despotic torrent of a man who thinks that only he alone can fix what ails us?


I went back and looked at what invective I had thrown at Mitt Romney last time around. I found a column that I wrote on November 4, 2012, in which I charged that Mitt Romney’s policies would roll back the welfare state of the post-New Deal era and return us to another Gilded Age of low regulation and high concentrations of wealth.   I approvingly paraphrased a critique that Barack Obama himself had used in the third presidential debate (which somehow we managed to survive that year as well) to the effect that Romney wanted to return to the foreign policy of the 1980’s, the social policies of the 1950’s and the economic policies of the 1920’s.

Last time around it seemed truly scary that despite his etch-a-sketch pivot in the general election, Romney was really beholden to the Tea Party conservative wing of his party.

reagan-trumpBut compared with what Trump is expounding this election, Mitt Romney, even Ronald Reagan for that matter, looks like a saint. Previous presidential contests focused on the proper size and scope of government.

Now we have to contend with Trump’s:

  • Muslim Ban
  • Wall with Mexico
  • Immigration deportation force and demonization or minorities
  • Degradation of women – and desire to punish them for exercising their right to choose
  • Tariff barriers that would likely crash trade and the market
  • NATO abolition – or turning the organization into a protection racket
  • Praise of Putin
  • Re-tweeting of and failing to separate himself from white nationalist hate groups
  • Unwillingness to abide by the outcome of the election and threat to the peaceful transfer of power
  • Loosening of libel laws so he can sue the press for unfavorable news coverage
  • Lack of understanding or respect for the separation of powers
  • Encouragement of violence at his rallies
  • Utter lack of respect for facts or truth, dark conspiracy theories and egomaniacal black soul


Here’s the thing: this is the first election in my lifetime when analogies to 1930’s Germany or the 1950’s Soviet Union don’t seem that farfetched. (See how I managed to avoid calling Trump “Hitler”?) A google search of “McCain” or “Romney” and “fascist” doesn’t turn up many hits, but try that search term with “Trump.”

michael-moore-hayes-01-614x412Left-wing documentarian Michael Moore and blogger and British-Tory turned Obama-progressive Andrew Sullivan both grouse that Trump has fashioned a winning argument that he is the agent of change (or as Moore call him, a “human Molotov cocktail”) against a gridlocked political system in Washington and the corrupt elites who run it. “It’s a rigged system, folks.” And Trump has explicitly run against Hillary Clinton as the embodiment of the political class – a person who has been in government for 30 years and done nothing to fix it because she is the problem.

But a funny thing happened on the way to election day: the debates.   We always have high hopes that43542128-cached the smart liberal – Walter Mondale, Michael Dukakis, Al Gore, John Kerry and Obama himself – will out-debate the Luddite conservative. Somehow in the past, even when the Democrat made the intellectual points, the Republican often proved more convincing to the electorate. Or the debates were interesting but failed to change the trajectory of the race.

Until this time.

Despite running for what many see as Obama’s third term with the fundamentals of the race against her, Hillary has (strategically) made the election a referendum on Trump – his lack of temperament, qualification and judgment to be president. She effectively prosecuted the case against him, showing him to be erratic, easily baited and utterly devoid of basic knowledge about government policy or the world in which we live. At the same time, she has presented herself as steady, assured, knowledgeable and extremely competent. I keep coming back to Mrs. Clinton’s biting statement in their first debate about Trump criticizing her for preparing for the encounter. To which she responded, “And you know what else I prepared for? I prepared to be president. And I think that’s a good thing.”


The (hopeful) irony would be that Trump’s electoral collapse not only elects Hillary Clinton president but also returns control of Congress to the Democrats, enabling them to enact a good chunk of the DNC progressive platform negotiated with Bernie Sanders (who was the one seen on the left as the change agent).   Rather than merely settling for the status quo, Hillary may be able to strengthen ObamaCare (even add back in the public option where red state governors have crashed the exchanges), make college affordable, build public infrastructure, regulate shadow banking, rebalance the tax code – and with a Senate tie or majority, fill Antonin Scalia’s seat (and other likely upcoming vacancies) with jurists who don’t think the Constitution has been frozen in time sHillary Clinton Begins New Hampshire Election Campaignince 1789.  She may also be able to use her considerable social and negotiating skills with Republicans (which were much admired when she served in the Senate and as Secretary of State) to forge some bipartisan compromises, particularly on comprehensive immigration reform and climate change.

In other words, Hillary may be able to resume where President Obama left off in 2010 after losing the House in the Tea Party midterms and become the refreshing change we can all believe in


Hillary gets her groove back at first presidential debate

In what appeared to be the first of her pre-planned lines of attack, Hillary Clinton played off Donald Trump’s assertion that she stayed home while he was busy campaigning, saying:

“I think Donald just criticized me for preparing for this debate. And, yes, I did. And you know what else I prepared for? I prepared to be president. And I think that’s a good thing.”

In their first presidential debate, Secretary Clinton looked both prepared and presidential. Mr. Trump looked neither.


On foreign policy, Trump was meandering and many times incomprehensible. Clinton deftly explained the purpose of the mutual defense pact at the heart of NATO; explained how the sanctions she helped impose on Iran led to a successful deal that “put a lid” on its nuclear program “without firing a shot;” and explained how to work with our Arab and Kurdish allies to defeat ISIS in Iraq and Syria and target its leadership, like she participated in taking out Osama bin Laden.

Even more than what she said, it was how she said it. She looked every bit the former Secretary of State, and future president, when she calmly chastised Trump by saying that “words matter” and on behalf of the American people, sought to reassure the world that the United States will honor our international commitments.

On the topic of achieving prosperity and creating jobs, Hillary neatly presented her three-point plan for investing in infrastructure, raising the minimum wage and enacting equal pay for equal work. Trump responded with his familiar trope of bad trade deals. But when specifically asked by moderator Lester Holt how he would specifically bring back manufacturing jobs, Trump had nothing: “Don’t let the jobs leave.” Well, thanks for that, Donald.

Trump tried to fall back on his business experience as a cudgel against Clinton. But Hillary was ready. She explained how he actually rooted for the 2008 housing collapse so he could profit, which he admitted by saying, “That’s called business.” But then she made a frontal assault on Trump’s disastrous economic plan, which would give a big tax break to the wealthy, blow a $5 trillion hole in the debt and lose 3.5 million jobs. She memorably connected his economic policies to those of past failed Republicans: “Trumped-up trickle-down.”

first-debate-hillary-photoShe was even able to humanize income inequality – early on setting the foundation that she is the daughter of a small-town drapery printer. She then recounted how Trump stiffed a multitude of independent contractors at his casinos and properties — and then personally took umbrage on behalf of her father and all small business owners.

Lester Holt didn’t help Donald Trump in asking pointed questions about why he won’t release his tax returns and took so long to renounce his birtherism about Barack Obama’s birthplace. When her damn emails came up, Hillary crisply repeated that it was a mistake and took responsibility. Donald tried, but couldn’t mount an effective counter-attack.

Trump’s body language throughout was most telling. He constantly interrupted (51 times), made faces on the split screen and seemed to drink a gallon of water. He made Marco Rubio’s sip of water during the Republican response to the 2013 State of the Union – which Trump himself mocked during the primaries as an example of “chocking” – seem poised.

As the minutes ticked, Hillary stayed focused and Donald became increasingly incoherent and tired. So it was particularly ironic that Trump closed by repeating (4 times in back-to-back sentences) that Clinton lacked the “stamina” to be president — or the “look,” whatever that means. Hillary, who at that point had put on an energetic performance for 90 minutes with no need for water, thank you, delivered a knock-out:

“[O]ne of the worst things he said was about a woman in a beauty contest. He loves beauty contests, supporting them and hanging around them. And he called this woman ‘Miss Piggy.’ Then he called her ‘Miss Housekeeping,’ because she was Latina.

“Donald, she has a name. . . . Her name is Alicia Machado. . . . And she has become a U.S. citizen, and you can bet. . . she’s going to vote this November.”


If the recent tightening in the polls has reflected the public’s concern with Clinton’s recent bout with pneumonia, tonight proved that she is fully recovered. Hillary Clinton did what she always does: she studied the issues, worked the hardest and came the best prepared. She passed the commander-in-chief test; Trump didn’t. I think the voters will notice that she got her groove back.

Top five takeaways from the Democratic National Convention

Democratic National Convention: Day Four

5.  The Democratic Party is now the patriotic party that believes in, and wants to make available for all, the American dream.

By contrast, the Republican National Convention was “Darkness at Noon.” And I mean the reference to Arthur Koestler’s novel about Soviet totalitarianism as an absolute rebuke to Donald “I alone can fix it” Trump. President Obama said it best last night:

“Our power doesn’t come from some self-declared savior promising that he alone can restore order as long as we do things his way. We don’t look to be ruled.”

Trump does not believe in the democratic social contract, but in the Hobbesian “nasty, brutish and short” authoritarian one – which is wholly un-American.

4.  Trump’s economic agenda is based on a lie.

He cannot bring back Rust Belt, blue collar manufacturing jobs by starting a trade war with high tariff barriers; deporting undocumented immigrants who are a significant portion of our productive workforce; and abandoning our international alliances that have protected capital markets on the American model. That’s a prescription for recession, not a sustained recovery.

The lost manufacturing jobs of the 20th Century are gone and not coming back (due not only to globalism but to technology).   Instead, it is Hillary’s job to explain that the Democratic agenda is to encourage the new, good paying jobs of the 21st Century that come from skilled labor, information and green technology and high education.

She made a pretty good start during his acceptance speech tonight, saying:

“In my first 100 days, we will work with both parties to pass the biggest investment in new, good-paying jobs since World War II. Jobs in manufacturing, clean energy, technology and innovation, small business, and infrastructure.

“If we invest in infrastructure now, we’ll not only create jobs today, but lay the foundation for the jobs of the future. And we will transform the way we prepare our young people for those jobs.”

That’s good economic policy and a winning political message!

3.  Hillary Clinton is the only one believable as the commander-in-chief of the United States military.

She stands in the shoes of all post-war American presidents who built, sustained and expanded our NATO alliance. That alliance not only defends democracy, but protects free markets worldwide.

Donald Trump once criticized President Obama for too openly telegraphing our future moves in the Middle East so that our enemies could anticipate and blunt them.

Yet it was Trump this week who telegraphed abandonment of the mutual-defense pact with our allies, making the Baltic states vulnerable to non-theoretical Russian aggression. And then after inviting Vladimir Putin to hack Hillary’s e-mail and interfere with our election, Trump suggested that we recognize Russia’s annexation of Crimea and Eastern Ukraine. Why not just offer up Poland and East Germany to boot? In a sense, Trump is retreating to pre-World War II traditional, Republican isolationism. That head-in-sand approach didn’t work then; and it is very dangerous now.

2.  The Muslim ban is idiotic – and unconstitutional.

Khizr Khan gave one of the most emotional speeches of the night as a kind of eulogy to his fallen son.  Capt. Humayun Khan was one of numerous American Muslims serving in the American military who sacrificed their lives in Iraq.   Removing a pocket-sized copy of the constitution from his suit jacket, the senior Mr. Khan spoke these words:

“Donald Trump, you are asking Americans to trust you with our future. Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy. In this document, look for the words “liberty” and “equal protection of law.”

“Have you ever been to Arlington Cemetery? Go look at the graves of the brave patriots who died defending America — you will see all faiths, genders, and ethnicities.

“You have sacrificed nothing and no one.”

That’s powerful stuff!

1.  Democrats have a deeper bench and legitimate A-list stars.

But who needs Hollywood celebrities when you’ve got Michelle, Bill and Barack? Cory Booker gave a great, uplifting speech Monday night that would otherwise have been a standout in any other gathering. Hillary’s acceptance speech wasn’t as soaring as President Obama’s from the night before, but it was authentic to who she is: a deeply caring, very smart, wonky and undeterrable lady poised to be our first female President of the United States.

Brexit victory and Trump’s candidacy show that history is cycling backward

Originally published June 24, 2016


Following the fall of the Berlin Wall and the demise of communism, Francis Fukuyama famously wrote an article in the National Interest entitled, “The End of History?” He postulated that the prediction of the German 19th Century philosopher, Hagel, had come to fruition: that liberal democracy had proven itself the ultimate victor in the contest of ideas and the form of government.

Brexit and Donald Trump are proving Dr. Fukayama distressingly wrong – or at least, premature.

The slight majority of voters in the United Kingdom have now voted to tear themselves from the European Union – leading to renewed calls for Scotland to secede to be followed out the door by Northern Ireland and even Gibraltar.

The British pound is down over 10%, to a 35 year low and the Dow is likely to open down 700 points in the morning.

The “Leave” folks in Britain have much in common with the Trumpistas: they have been the economic losers in globalization and the information economy, fear immigrants to want to isolate themselves from the big, scary world. They even have Trump-like xenophobic leaders showing the way in the personages of the self-described “radical,” Nigel Farage, and the truth-challenged, former Mayor of London, Boris Johnson. And here’s the even scarier link to the American election: the “Remain” vote had appeared to be eking out a narrow win in pre-vote and then in exit polling.

So was the polling off – or were voters just embarrassed to tell pollsters their deep down secret that they intended to cast their ballots to break with Europe? In the United States, in the face of negative polling Donald Trump has claimed that he will benefit from a “reverse Tom Bradley” effect – namely, that he polls worse than his actual standing.

The Brexit vote is a warning to Americans, and particularly diehard fans of Bernie Sanders: if supporters of liberal democracy don’t get out and vote this November, we could wake up on November 9th in the same position as the British are this morning: dazed, confused and seeing the end of their way of life.

Our Republic survived Richard Nixon, Ronald Reagan and two Bushes, and it would have survived John McCain and Mitt Romney. It won’t survive Donald Trump. He does not understand democracy, has no appreciation of the Constitution and has authoritarian impulses that are on display for all to see. We are potentially watching the crumbling of a Weimar America, with democrats (and Democrats) squabbling among themselves while the fascist are on the rise.

It can’t happen here? Well, look what just happened in the United Kingdom.

Hillary Clinton is not the most natural politician, as she has acknowledged. And she is surrounded by fake scandals and untrue allegations which take longer to debunk than for Fox News to repeat. But she is a very smart, capable and genuinely caring person who is well-suited to guide our country and lead the free world in a positive direction.

Americans face a binary choice this election (it’s either Hillary and incremental progress or Donald and precipitous decline, strife and dislocation), and we dare not follow the British example and reverse history.

With Trump’s rise, conservatives lose Republican Party

First published May 30, 2016


Conservatives instinctively know that Donald J. Trump is not one of them and vow to oppose his candidacy now that he has won the GOP nomination. George. F. Will called Trump “the most anti-conservative presidential aspirant in their party’s history” and urged all right-thinking Republicans to “keep him out of the White House. “ The National Review dedicated an entire issue to essays from conservative luminaries with the common theme of being “Against Trump.” What conservatives fail to recognize, however, is that Trump’s very success proves that conservatism itself lacks a constituency.

Conservatism in the modern area was a political philosophy created to justify low taxes and decreased regulation on big business – leading to the accumulation and perpetuation of great wealth among the very few. In order to sell that ideology, conservative philosophers, including Irving Kristol, Milton Friedman and William F. Buckley, linked laissez-faire economics to notions of “liberty” and general prosperity. And they created a false narrative to attract middle class voters who aspired to improve their station: that they, too, will benefit from low taxation when they become rich.

Ronald Reagan perfected the conservative appeal to white, middle income earners, conflating big government with inefficiency and social welfare programs with minority cheats who game the system and become dependent on it. The use of racial politics was obvious. But make no mistake. Republicans in the 1980’s stigmatized government programs because they didn’t want to be taxed to pay for them. They just hid their true agenda behind dog whistles and the dogma of trickle-down economics, even as the Laffer curve bent in the wrong direction.

To broaden the conservative base into a true ruling coalition, religious traditionalists and anti-communists were added. Jerry Falwell infused the GOP with evangelical, mostly Southern Christian theology – although the Moral Majority, as the saying went, proved to be neither. That national security hawks came to be associated with the Republican Party was a fluke of history. Every U.S. administration since Harry S Truman has been anti-communist. In the aftermath of the Vietnam War, however, the Democratic party became less interventionist and more concerned with domestic inequities – which gave the Republicans an opening to attract those interested in a more assertive foreign and military policy.

Reagan made liberalism a dirty word and Kristol, the senior, railed against what he dismissively characterized as the “new class” of Democrats: “scientists, teachers and educational administrators, journalists and others in communication industries, psychologists, social workers, those lawyers and doctors who make their careers in the expanding public sector, city planners, the staffs of the larger foundations, the upper levels of the government bureaucracy, and so on. . . .”

Since Democrats have won the popular vote in 5 of the last 6 presidential elections, it appears that this so-called “new class” has done a better job of attracting voters than the plutocratic class. Bill Clinton and Barack Obama proved to be good stewards of the economy and the nation. Indeed, when Trump and his supporters presently attack Bill Clinton for his actions in the 1990’s, Hillary Clinton responds with an apt question:

“[W]hen you criticize the ’90s, what do they criticize? The peace, or the prosperity?”

The conservative coalition of the Reagan years has now broken apart, with Trump wielding the final axe. After the fall of the Berlin Wall, anti-communists scattered. Social conservatives lost the national debate on abortion and marriage equality, and their preferred presidential candidate, Ted Cruz, lost badly in the primaries. Even the new pope, Francis, instructs the faithful to refocus their efforts on social justice and away from social judgment. Now with Trump championing the white working class, conservatives have lost their final broad constituency for laissez-faire economics.

Rich candidates for the presidency who have succeeded have always done so as traitors to their class: think Franklin Roosevelt and John F. Kennedy. That is the one thing that Trump has in common with them. He gained much currency for his vow to use his billions to self-fund his campaign – immune from the corruption of money in politics. He promises to use his negotiating prowess on behalf of the little guy who agrees with him that the system is “rigged.” And unlike Speaker Paul Ryan, Trump does not contend that the government is corrupt per se, just that it is run by “incompetent people,” i.e., not him. Once Trump is in charge, he promises to buttress, not cut, Social Security and Medicare, impose huge trade tariffs and consider higher taxes on upper income-earners (or at least higher taxes than his original economic plan contemplated). Oh, and round up and kick out 11 million undocumented immigrants.

This all sounds very expensive to the plutocrats – leading even Charles Koch to proclaim that it was “possible” that Hillary Clinton would be preferable to Donald Trump.

On foreign policy, Trump is an isolationist; on trade policy, a protectionist; and on social policy, a secularist. If these count as Republican positions, they are pre-Reagan, pre-Barry Goldwater and certainly not conservative. But they are winning positions for Trump.

Like a virus, Trump may have infected the Republican primary electorate, but conservatives were the ones that lowered its immunities – by embracing an anti-science, anti-intellectual and anti-modern ideology in service of personal economic gain. When you strip high-minded conservatism from the Republican base, you’re left with xenophobic nationalists in search of an economic populist like the Donald. Conservatives just never realized that the voters they counted on would become anti-capitalist as well. The well-to-do will survive this coming election, but conservatism may not fare as well

2020: Trump’s America

Originally published April 4, 2016


Donald J. Trump’s first presidential term had started with such promise. He had ascended to the highest office in the land based upon his business acumen and as a man of the people. A billionaire populist, he would use his negotiating skill on behalf of the general citizenry. The American public, as he had convinced it during the campaign, was tired losing and being governed by “stupid people.”

Trump took office in January 2017, following 83 consecutive months of job growth and an increase of over 13 million private sector jobs under the outgoing Obama Administration. He inherited a growing economy and shrinking budget deficits.

So what happened?

Don’t tax but spend

Trump made good on his promise to maintain popular middle class entitlements (Social Security, Medicare, etc.), but also on his promise to cut taxes for everyone. This translated into a miniscule tax cut for lower income earners, but huge one for those in the upper income brackets. As accurately predicted by the Tax Policy Center, the highest-income 0.1 percent of taxpayers got an average tax cut of more than $1.3 million while middle-income households only received an average tax cut of $2,700. Although he campaigned like a would-be traitor to his class, the Donald’s tax plan oddly benefited himself and his children the most. And without any offsetting spending cuts, deficits have spiraled – taking the deficit that was down to 2.4% of GPD in President Obama’s last year in office back to the almost double digits not seen since the recession that Obama inherited.

Tariffs and trade

The incoming Trump Administration also made good on the candidate’s campaign promise to hike tariffs on our trading partners by 45%. The resulting trade war caught the new president off guard. He was also surprised to find that Americans were none too pleased by what amounted to a huge tax on their consumer goods – and by the resulting return of high inflation to a country where millennials had grown up expecting no inflation and close to zero interest rates. But Fed Chairman Carl Icahn had no choice but to hike the federal funds rate to tamp down on runaway inflation.

Income inequality

After depleting government revenue and ballooning the deficit, Trump had no money left for government spending on investments that actually pay dividends in economic development, like public infrastructure, public education and research and development. He, of course, worked with Speaker Paul Ryan and Senate Majority Leader Mitch McConnell to repeal the Affordable Care Act and Dodd-Frank regulations of Wall Street. The predicable results: pre-ObamaCare levels of uninsured returned, as did banks that were too big to fail. Wall Street was unleashed, and income inequality soared.

Banning abortion

The Donald has always said that he cherishes women and has lived up to his election promise to protect them from their right to choose. Instead, he gave that choice to the Supreme Court justice he selected to fill the seat of the late Antonin Scalia.

During a 24 hour period in the campaign, Trump had gotten a little tripped by taking wildly inconsistent positions on abortion – from punishing a woman for having an abortion, to calling Roe v. Wade settled law that should not be changed, to finally saying he would appoint judges to overturn it.

But by sub-contracting out to the Heritage Foundation the job of vetting judges for the high court, Trump was able to recreate the 5-4 conservative majority that had reigned since the Reagan years. With the retirement of Anthony Kennedy and his replacement by Andrew Napolitano of Fox News, abortion is now technically legal but practically inaccessible for most women. Separate is once again equal. And all gays who married have received a government-mandated divorce when the franchise was recently withdrawn by court decree. Trump explained that he was merely swapping one individual mandate for another.

Making America great again

In his first week in office, President Trump decided to renegotiate that “disastrous” nuclear deal with Iran. The Iranians responded by kicking out the IAEA inspectors and restarting their nuclear program that had been mothballed under Obama’s international agreement. War is imminent. But with the demise of NATO, at least the United States can count on the now nuclear-armed Saudis, South Koreans and Japanese to maintain the peace in the east.

The big, beautiful wall

Trump finally built that dang wall on the Mexican border, and one on the Canadian border for good measure. Combined they block both undocumented immigrants returning to the South and emigrants fleeing to the North. His glowing historical references to Eisenhower’s “Operation Wetback,” FDR’s Japanese internment and East Germany’s Berlin Wall now make prefect sense.

Four more years

After defying odds in capturing the White House in 2016, Donald Trump reaches the end of his first term facing a more diverse, unemployed and angry electorate. Four years ago, he loved the “poorly uneducated” and they returned the favor. Will those with a functioning brain now take their country back?

Scalia’s passing may end conservative domination of the Supreme Court

Originally published February 13, 2016


With the passing today of Associate Justice Antonin Scalia, the Supreme Court is set for major changes. For one, the 79 year old justice will likely be replaced by one several decades his junior – thus, starting the process of rebalancing the High Court for a generation. Second, if President Obama, or his possible Democratic successor, picks Scalia’s replacement, it would be the first time since the administration of Lyndon Johnson that the Supreme Court might enjoy an outright liberal majority.

In his seven years in office, President Obama has had the opportunity to name only two justices – Sonia Sotomayor and Elena Kagan – but those appointments replaced two retiring liberals – David Souter and John Paul Stevens, respectively – maintaining the ideological status quo on the Court. And that status quo was quite conservative.

Before retiring, Justice John Paul Stevens noted that since 1971, every one of the justices appointed to the Court was more conservative than the justice who was replaced. Indeed, we can credit (or blame) the two Bush presidencies for the current conservative majority. George H.W. Bush’s replacement of civil rights icon Thurgood Marshall with arch conservative Clarence Thomas – followed by George W. Bush’s replacement of moderate Sandra Day O’Connor with Samuel Alito (known as “Scalito”) cemented a 31-year march rightward.

It is a mark of how conservative the Court has become that the few major liberal victories in the current era of the Roberts court – most especially on gay rights – have depended on the swing vote of Anthony Kennedy, a moderate conservative with libertarian leanings, or in the case of ObamaCare, of Chief Justice John Roberts, a conservative with pragmatic leanings.

Scalia came of age during, and in contradistinction to, the grand era of the Warren court, which desegregated the public schools (Brown v. Board of Education), modernized criminal justice (Miranda v. Arizona and Gideon v. Wainwright) and established a right of privacy (Griswold v. Connecticut, which formed the intellectual foundation for abortion rights in the later case of Roe v. Wade). Justice Scalia was among the loudest voices in his generation for the conservative jurisprudence of originalism. Originalism is a theory of constitutional interpretation that seeks to divine the original meaning of the Constitution from the text itself or where unclear, from what the public would have understood those words to mean at the time of ratification. This means the Constitution was frozen in meaning as of 1789 (at its original ratification), 1791 (for the Bill of Rights) and between 1865 and 1870 (for the Civil War Amendments).

Or as Scalia famously, and infinitely more colorfully, explained in a 2013 book promotion tour,

“[The Constitution is] not a living document. It’s dead, dead, dead.”

Conceptually, Scalia meant his originalism to be a constraint on the Court’s ability to interpret the Constitution. His jurisprudence developed to serve as a brake on what he perceived as Warren era excesses and to roll back the New Deal era that gave expanded powers to the federal government under modern views of the Commerce and Due Process Clauses. Fundamentally, Scalia’s originalism was a frontal attack on the principle of judicial review established by our first Chief Justice, John Marshall, in Marbury v. Madison, which permits the Supreme Court to make final, binding precedent for the nation and “say what the law is.” Judicial review is based on the English common law system of justice that formed the very basis of the Framer’s understanding of the words they used in drafting the Constitution. And judicial review is a system of justice that respects judicial precedent but allows each generation of jurists add to the common law as is required to modernize the spirit of the laws and apply them to current conditions.

Justice Scalia will be remembered for his blistering dissents, in which he stood athwart the Court’s historic application of the principles of the Equal Protection to gays and lesbians in invalidating anti-sodomy laws and establishing marriage equality – because no such rights would have been recognized almost 150 years ago at the time of the ratification of the Fourteenth Amendment. But ironically, Justice Scalia will also be most remembered for his majority decision in District of Columbia v. Heller that ignored originalism and found, for the first time, an individual right to bear arms in the text of the Second Amendment that only expressly provides such a right to “well regulated” state militias.

The immediate impact of his death will be felt most significantly in the balance of the current Supreme Court term. His absence now deprives conservatives of a majority in what otherwise might have been 5-4 decisions decimating public employee unions, abrogating “one man, one vote” in Congressional redistricting (to the detriment of Democrats for the foreseeable future) and restricting the scope of the contraception mandate under the Affordable Care Act.

Just last week, a majority of the Court, including Scalia, issued an almost unprecedented stay of the EPA’s new regulations to curb emission from coal-fired power plants – which court action many believe will undermine the recent Paris Agreement to tackle climate change on a global basis. The case now goes back to the Court of Appeals, where two of the three judges on the panel hearing the case are Democratic appointments. If they expedite the case and rule in favor of the Administration, the Supreme Court now lacks a fifth vote to overrule them. And a 4-4 tie affirms the lower court ruling.

President Obama spoke to the nation this evening, saying that he will fulfill his constitutional duty to nominate a replacement justice. Senate Republicans are vowing to block a vote on any such replacement until the next president takes office. It is odd that the passing of Scalia, who vociferously advocated but did not always practice judicial restraint, now frames the current presidential election.

Democratic Charleston debate choice: Revolution or evolution?

Originally published January 18, 2016


The Democrats met tonight for their last presidential debate before the primary voting starts early next month in Iowa and New Hampshire. They touched on several hot button topics facing Democratic voters – from heath care and Wall Street reform to taxes and gun safety. And the biggest difference between the two frontrunners, Bernie Sanders and Hillary Clinton, was on the direction and speed of change they each embraced. Sanders wanted what he calls a “political revolution;” Clinton more like an evolution building on what Barack Obama has already started and achieved.

The Affordable Care Act best exemplified the difference between their two approaches. Bernie, the Democratic Socialist, naturally wants a socialist solution for health care: single payer health insurance through Medicare for all. This solution, however, stands in stark contrast to what President Obama did to get major health care reform passed. The president made a realistic calculation at the beginning of his first term and decided to co-opt the major stakeholders in the health care industry, including private insurers, to make them a part of the solution. ObamaCare gave private insurance companies more customers by mandating individual coverage, but in exchange, did away with pre-existing conditions as a reason for those insurers to deny anyone coverage or charge them a higher premium.

At the debate, Hillary noted that when Congress took up passage of the ACA, Democrats had a filibuster-proof majority in the Senate and still could not get enough votes for the public option, which would have allowed people to buy into Medicare.

She continued, saying:

“So what I’m saying is really simple, this has been the fight of the Democratic Party for decades. We have the Affordable Care Act. Let’s make it work.”

In other words, Bernie, the revolutionary, wants to wholly reimagine health care and start over; while Hillary, the pragmatist, wants to build on what has already been achieved at great cost as a vehicle to move toward universal coverage. Sander’s position feels better in the abstract, but Clinton’s actually provides coverage for people in the real world.

A nice pivot would have been a contrast with the Republicans. The single biggest impediment at present to near-universal coverage is the maddening refusal of Republican governors to accept Medicaid expansion under the ACA for the benefit of their lower income citizens. I’m sure that was the point Martin O’Malley wanted to make as the moderators cut to a commercial break!

The same dynamic between Sanders and Clinton played out on taxes and Wall Street reform. Bernie wants to break up the big banks and raise taxes, mostly on the rich but also on the middle class, to fund health, education, childcare and infrastructure spending. Hillary would regulate shadow banking and build upon the Dodd-Frank financial regulations signed into law by President Obama. But she channeled her husband’s New Democrat bona fides, in promising no new taxes for middle-income earners. Again, revolutionary versus evolutionary.

The exception was gun safety. It’s the one topic on which Clinton has gotten to Sanders’ left and made him pay. The debate took place in a venue literally down the block from the “Mother” Emanuel AME Church where the shooting massacre of worshipers took place last year. Hillary identified the litany of gun safety reforms against which Bernie voted in Congress, including the Brady Bill and the so-called “Charleston loophole,” which allowed the gunman – who should have been blocked because of his criminal background – to acquire his firearm before a background check could be completed. Sanders really had no good answer. On this issue, Hillary was the revolutionary.

In place of closing statements, moderator. Lester Holt. asked the candidates if there was anything they wanted to add that they hadn’t gotten a chance to say. Sanders reprised his campaign theme of taking the country back from the control of wealthy campaign contributors. Clinton injected a new hot topic: the lead contamination of the drinking water in Flint caused by the malfeasance of the Governor of Michigan looking to save money. She noted that poisoning occurred in a “population which is poor in many ways and majority African American” and wondered whether government action would have come more quickly in a rich suburb. Since the debate was co-sponsored by the Congressional Black Caucus Institute and Clinton needs to keep the Obama coalition together to win, she finished strong – for an incrementalist.

Trump and Sanders agree on regime change in the Middle East: don’t do it

Originally published December 20, 2015

Last week at the Republican presidential debate in Nevada, we saw a big divide on the continued policy of regime change in the Mideast, especially as to overthrowing Bashar Assad in Syria and putting American ground troops, so-called “boots on the ground,” in defeating the Islamic State. The establishment candidates (Jeb! Bush, Chris Christie and John Kasich) all were in favor, and the outsiders (Donald Trump and Rand Paul) were opposed.

Now tonight at the Democratic debate in New Hampshire, a somewhat similar dividing line on regime change has emerged as to Hillary Clinton and Bernie Sanders, insider versus outsider.


Sanders, the Democratic Socialist, and Trump, the nativist Republican, agree: defeat ISIS first and worry about Assad later, if ever. America is not the world’s policeman and take care of direct threats to U.S. national security first before the world’s problems. Their view is that the vacuum created by unseating Arab strongmen has been filled by the chaos of Islamist terrorists. Hillary (like Chris Christie at the Republican debate) presented a competing narrative of ISIS’ rise, namely as the byproduct of the oppressive Assad dictatorship.

In terms of military policy going forward, Clinton’s position splits the difference between the Republican establishment and the outsiders. While she agreed with the Obama Administration’s policy of using U.S. special operations to buck up the Kurds, Iraqis and Turks fighting ISIS, she firmly opposed American boots on the ground. As she said, “[ISIS] want[s] American troops back in the Middle East. They want American soldiers on the ground fighting them, giving them many more targets, and giving them a great recruiting opportunity.” But she also said that the eventual removal of Assad is an important element in the grand policy of attracting anti-ISIS, Sunni Arab allies, who will be the ground troops to our air support. They are primarily animated by their hatred off the Alawite regime in Damascus and only secondarily motivated to put an end to the competing Sunni Caliphate.

In a break with the president she once served, Hillary was one of the first national politicians to propose an American no-fly zone over Syria to shield Syrian civilians from the atrocities of ruling regime and help stem what has become one of the biggest humanitarian disasters of our time in the fleeing of hundreds of thousands of refugees. But she didn’t go all neocon like the Republican establishment at their debate. Christie wanted to use a no-fly zone to shoot down Russian planes and Kasich to punch Putin “in the nose.” Instead, Clinton was able to buttress her position with this week’s diplomatic news at the United Nations and between the U.S. in Russia in moving toward a coordinated policy toward ISIS and Syria – meaning that Washington had foregone regime change in the immediate term in order to put the Islamic State first and foremost in everybody’s crosshairs.

At tonight’s debate, Bernie Sanders criticized Hillary Clinton for being “ too much into regime change and a little bit too aggressive without knowing what the unintended consequences might be.” Bernie was really trying to score points against Hillary more on her past positions on Iraq and Libya than on her present policy on Syria. Hillary returned fire not only against Bernie (pointing out that he voted in the Senate to overthrow Gaddafi), but also against Donald Trump, whom she might face in the general election, saying, “Mr. Trump has a great capacity to use bluster and bigotry to inflame people and to make think there are easy answers to very complex questions.” Clinton is proving to be the one who gives the complex answers to those complex questions.

A mini-controversy erupted, however, over Clinton’s statement that:

“. . . we also need to make sure that the really discriminatory messages that Trump is sending around the world don’t fall on receptive ears. He is becoming ISIS’s best recruiter. They are going to people showing videos of Donald Trump insulting Islam and Muslims in order to recruit more radical jihadists.”

Commentators immediately pointed out that there was no evidence of any such ISIS videos. Clinton’s statement, although not precise, appeared to be prospective, in other words, that Trump’s words could be used in ISIS recruiting videos, not that they already have been. We’ll see how the Clinton campaign responds, but on the bigger picture of regime change, the lines between the insiders, outsiders and Clinton have been drawn.

Republican candidates debate regime change in Las Vegas

Originally published December 16, 2015


Personal insults continued to fly at tonight’s Republican presidential debate between the candidates – not surprisingly with Donald Trump in the vortex of most of them. But there was also a substantive fault line on foreign policy between those that favored (and defended) a George W. Bush-style policy of regime change in the Middle East versus those who did not. We already knew that the former president’s brother, Jeb!, still stands by the removal of Saddam Hussein in Iraq. Tonight’s debate, however, saw Marco Rubio and John Kasich make forceful, if not convincing, arguments in favor of extending that foreign policy to Syria in ousting Bashar Assad and putting thousands of American boots on the ground to rout ISIS.

Rand Paul reclaimed the libertarian mantel of his father, Ron Paul, in making the strongest ideological case against “chaos through regime change.” His argument was that the American regime-change policies under both Bush and Obama in Iraq, Libya, unsuccessfully in Egypt and haltingly in Syria has created the vacuum in which the Islamic State and the Muslim Brotherhood thrive. He described himself as a foreign policy “realist” – as opposed to the “utopian” neo-conservatives represented by Bush, Rubio and Kasich.

Trump was a fellow traveler with Rand Paul on non-intervention, saying that the $3, $4 or $5 billion (he couldn’t decide which) we spent on the wars in Iraq and Afghanistan were “wasted” and could have been better spent at home on roads and bridges. That was too much for Carly Fiorina, who said Trump sounded like Obama – which is only because she’s incapable of thinking outside the box, which love him or hate him, is Trump’s specialty with his toxic blend of economic populism, ethnic xenophobia and nationalism.

Ted Cruz, as he has on immigration policy, straddled the stage. He did not want to associate himself with the Rand/Ron Paul libertarian, non-interventionist position, (too isolationist), but he also didn’t want to fall into the neocon idealist camp of Rubio, who will likely be his biggest competitor for the nomination when and if Trump falters. So Cruz took the hawkish interventionist position of “America First”: Middle East dictators were okay; don’t topple Assad; but carpet-bomb ISIS. When asked at the top of the debate whether he was advocating the mass indiscriminate slaughter of the “hundreds of thousands of civilians” by “leveling the ISIS capital of Raqqa,” Cruz stepped back from the precipice. He said he would be targeting ISIS with “overwhelming air power.” In other words, he has no idea what he’d do, but it would be better and stronger than Obama.

Ben Carson had the best metaphors of the night. As a brain surgeon he had to tell patents hard truths, just like he would counsel the nation on foreign policy. As to Middle East dictators, he analogized to a plane losing altitude and putting on your oxygen mask first before helping your neighbor put on his. In other words, this is what counts as hawkish realism in conservative circles today.

Chris Christie thought he could use to his advantage the recent terrorist shooting in San Bernardino and the bomb threat that closed the Los Angeles Unified School District on the very day of the debate. Christie positioned himself as the 9/11 candidate, ready to defend the nation like he defended New Jersey after being appointed as U.S. Attorney on September 10, 2001 (which date of appointment is in dispute, but never mind). To the extent he described a policy, Christie sided with the neocons, favoring a no-fly zone over Syria. He said he would even risk war with Russia by shooting down any of Putin’s planes violating that zone. This appeared aimed at establishing his tough-guy cred, as opposed to a serious policy choice. As Christie elaborated, “See, maybe because I’m from New Jersey, I just have this kind of plain language hang-up.” The problem is that every time he brought up New Jersey, I thought Bridgegate.

It was odd when Trump went off-script, as he is want to do, and said nuclear proliferation was the biggest foreign policy threat facing the United States. (Perhaps his mind has focused on an earlier question about North Korea’s recent claim of possessing a hydrogen bomb.) Then Cruz outdid Trump citing a “nuclear Iran” as our greatest national security threat – apparently forgetting that Obama’s recent deal has already taken Iranian nuclear weapons off the table for the foreseeable future. Rubio even blamed Obama’s détente with Iran for causing the Sunnis to bow out in the fight against ISIS. Christie “agree[d] with Marco” on that line of thought.

Indeed, the big take-away from tonight’s debate seemed to be that in opposing President Obama’s strategy of engagement with Iran, the neocon Republicans (Rubio, Kasich and to a certain extent Bush, Christie and Fiorina) would like to put the American thumb on the scale in favor of the Sunni Gulf Arab regimes in opposition to the Shia ones in Iran and Syria. Maybe they’re just voicing the concerns of big oil. Or maybe they’re hopeless interventionists. But they bring to mind Menachem Begin’s quip when asked about Israel’s position on the Iran-Iraq war of the 1980’s: “I wish both sides success.” Or as a realist might wish, a balance of power status quo.

The funny thing about foreign policy is that it is completely unpredictable. Woodrow Wilson ran for office as an academic with immense domestic policy credentials, once even remarking that “[i]t would be the irony of fate if my administration had to deal chiefly with foreign affairs.” Then came World War I. George W. Bush campaigned for president on a “kinder and gentler” foreign policy. Then came the Iraq War. Even President Obama won the White House, or at least the Democratic nomination, largely as a result of his opposition to the war in Iraq and on a promise to bring the troops home from the Middle East, to where he has now had to send them back. But to the extent that philosophy portends policy, tonight’s debate was a real one on regime change. And as he has done on economic, trade and immigration policy, Donald Trump is scrambling the post-World War II Republican foreign policy of hawkish interventionism — and is pulling the party back to its pre-war isolationism, with a dash of unilateral muscular bravado.