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Hillary Clinton wins second debate by not losing it, but doesn’t deliver a knockout blow

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I almost wasn’t going to write a column after tonight’s debate because I didn’t get the TKO of Donald Trump that I was hoping for.  As I reflect on what we just saw, I think my expectations were just too high.  Trump adjusted from his awful first debate appearance; didn’t interrupt nearly as much; and landed a few (low) blows.  Fundamentally though, the Donald delivered a rambling, scowling, stalking performance full of non-sequiturs and untruths. He just wasn’t as bad as at the first debate.

After the release of the “Access Hollywood” tape on Friday catching Trump on a hot mic bragging about grabbing women’s privates without consent, there were some premature declarations that the campaign was over.  But it won’t be until the last elector is chosen.

The race may not have ended tonight, but the trajectory didn’t change either.  And that’s okay because Hillary Clinton was winning before the debate began and is still winning coming out of it.

Hillary spoiled us with a master class in debate combat last time – with Trump taking the bait at every turn: on his unsavory business practices; non-payment of taxes; and insults of a Miss Universe winner who happened to be Latina and is now registered to vote.  Last time Trump wilted after the first 20 minutes; this time, he roamed around and looked alive for the full 90 minutes.  If this had been the first encounter, Donald would have received more criticism for his menacing body language and constant sniffling.  Compared to the last debate, however, his body language was actually an improvement.

As George W. Bush might say, Trump benefitted from the soft bigotry of low expectations.

But if Donald didn’t crater, neither did he excel. His pre-debate Facebook press conference with Bill Clinton’s female accusers was mostly a head-fake that received only passing reference at the beginning of the debate – and only after Anderson Cooper directly brought up the groping tape. Trump’s threat, should he become president, to appoint a special counsel to prosecute and jail Hillary was absolutely chilling and unbecoming.  He made the United States look like a third-rate dictatorship where political opponents are killed or exiled to Siberia.  And Trump’s explicit disagreement with Mike Pence on intervention in Syria (“He and I haven’t spoken, and I disagree”) reinforced the impression that the Republican standard bearer is not only at odds with his party but with his own running mate.

Hillary seemed content to rest on her laurels from the last debate, asking the viewing public to consult with fact-checking website instead of crisply rebutting Donald’s outlandish claims about her emails, the origins or birtherism and wikileak’s hacking of her Goldman Sachs speeches. She did, however, competently discuss how to improve ObamaCare instead of repealing it; how her tax plan does not raise taxes on the middle class (or anyone making less than $250,000) but his gives big tax breaks to the rich and corporations; and how to combat “violent jihadist terrorists” without declaring a counter-productive war against Islam itself.  I thought she missed an opportunity to thump Trump harder on his denial of climate change and the public policy consequences.

Clinton’s one interruption of Trump was to real-time correct him that she was no long secretary of state when President Obama failed to enforce the red-line he drew on Syria’s use of chemical weapons.

Trump’s oft-repeated theme running through both debates is that he’s the agent of change and that Clinton is the embodiment of 30 years of the status quo. Hilary’s theme remained that she is the qualified adult in the room who can, and will, deliver real results for real Americans. – whereas Donald isn’t fit to serve.   As with the first debate, Hillary looked and sounded presidential. And slow and steady wins the race, even if a knockout would have been more emotionally satisfying.

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

Originally published February 13, 2016

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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.

Top 10 take-aways from the first Democratic debate

Originally published October 14, 2015

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The Democratic contenders for president met last night in Las Vegas for their first debate. It was sponsored by CNN and hosted by Anderson Cooper. There was a nice contrast with the Republicans right at start with all participants holding their hands over their hearts as Sheryl Crow sang the “Star Spangled Banner.” In contrast, at the first Republican debate, Donald Trump refused even to pledge allegiance to support the eventual Republican nominee, unless it is he himself – epitomizing a party in decline and at war with itself.

Here are my top 10 take-aways from the evening:

  1. The age of Reagan is over, and liberalism is no longer a dirty word.

    Hillary Clinton is a self-professed progressive. Bernie Sanders is a Democratic Socialist. He wants to lead a revolution against big corporations, big banks and Wall Street. Clinton only went as far as endorsing Dodd-Frank, not Glass–Steagall. But both support small business and entrepreneurship. Sanders wants us to be like Denmark; Clinton wants to reform American capitalism and keep it from running amok.

  2. There were no personal attacks.

    To the contrary, Sanders came to Clinton’s defense early on, saying to loud applause, “the American people are sick and tired of hearing about your damn e-mails.” Hillary shook his hand and put “Email-gate” behind her. After Lincoln Chafee made another comment on the email controversy, Clinton declined the opportunity to respond. Nothing more need be said.

  3. It was a big night for women.

    At the Republican debate, Trump had to explain his demeaning treatment of women. At the Democratic debate, Hillary repeatedly referred to herself as a daughter, granddaughter, a grandmother and, well, a woman – in fact, the only woman running who may become the first female President of the United States. (It certainly won’t be Carly Fiorina, who couldn’t run H.P. and couldn’t beat Barbara Boxer in a wave-Republican year.)

  4. Martin O’Malley is running for president. . . in 2020.

    He’s young, polished, accomplished and just needs more national exposure. I can see him in the next Democratic cabinet. Jim Webb seemed to be running for Secretary of Defense. Not sure what Lincoln Chaffee was running for.

  5. There were two former Republicans on the debate stage in Vegas (Webb and Chaffee).

    They claimed that the Republican party deserted them, so they switched parties. That used to be said of the Democratic party. No more. It feels like “Big Mo” and demographics are with the Democrats this election cycle.

  6. Clinton attacked Sanders from the left one very hot issue: guns.

    Bernie voted against the Brady Bill. And he supported exempting gun manufacturers from liability, while Hillary did not. Bernie may have gotten a D- rating from the NRA, but Hillary got an F. A race to the bottom won by the lady! (They both beat Webb’s A rating, making him look like a fish out of water.)

  7. The Iraq War vote is losing its saliency as an issue in the Democratic primary.

    Yes, Hillary voted to authorize war, but Obama, who famously opposed the war, validated her overall judgment by selecting her to serve as his Secretary of State.

  8. Everyone wants to run for Obama’s third term.

    Hillary also wants to run for a Clinton third term, updating Bill’s winning campaign slogan about “working hard and playing by the rules,” calling for a “new New Deal” and saying, “My mission as president will be to raise incomes for hard-working middle-class families and to make sure that we get back to the basic bargain I was raised with: If you work hard and you do your part, you should be able to get ahead and stay ahead.” That had a nice and familiar ring to it.

  9. The Democrats were split on Edward Snowden.

    Clinton, O’Malley and Sanders said he would have to serve jail time if he comes home. Oddly, the former Republicans, Chaffee and Webb, would cut him more slack, pointing to Fourth Amendment concerns with mass collection of metadata that he brought to light.

  10. Finally, there was no dumb-talk.

    No one on stage came out against evolution or doubted the science behind climate change. All strongly support clean energy, except again for Webb, the former Senator from Big Coal. It looked like a bright and energetic group of candidates last night.

Trump’s new immigration plan would require a constitutional amendment

Originally published August 15, 2015

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Donald Trump released a short policy paper on immigration this morning, reiterating his improbable plan to build a wall along the southern border and make Mexico pay for it. In interviews today Trump has also stated that all undocumented immigrants “have to go.” But his new policy paper is silent on the subject of such mass deportation of these 11 million people – except to say that the return of all “criminal aliens” is “[m]andatory.”

It is interesting to note that in his first, and only, position paper released to date, Trump, a billionaire real estate developer who brags about paying-off politicians, focuses exclusively on the least powerful and most insecure among us – those living and working here in the shadows without legal documentation.

Buried in Trumps’ policy paper is a shocking call to “[e]nd birthright citizenship.” Not surprisingly, there’s not much substance to this plank, except for him to say that “ ‘no sane country’ would give automatic citizenship to the children of illegal immigrants.” By that definition, the United States is not sane because the Citizenship Clause of the Fourteenth Amendment to the Constitution has required for almost 150 years that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof” be considered “citizens of the United States.”

Passed in aftermath of the Civil War, the Fourteenth Amendment aimed to end the disenfranchisement of freed slaves and ensure citizenship for all those born in this country without regard the status of their parents. One of the purposes of the Citizenship Clause of the Fourteenth Amendment was to overrule noxious ruling by the antebellum Supreme Court in Dred Scott in 1857, which prohibited both freed slaves and their descendants from ever becoming citizens.

Citizenship at birth means that if you’re born here, you’re a U.S. citizen. This is a type of American exceptionalism that distinguishes us from, say, Germany, which until recently bestowed citizenship only on those whose parents were German citizens or of “German ethnic origin.” American has never had, and does not now need, an ethnic purity test. Indeed, U.S. immigration law is based upon English common law that “a person’s status was vested at birth, and based upon place of birth.” In Latin, the concept is called jus soli.

Some conservatives have argued as of late that the Citizenship Clause’s requirement that those born here be “subject to the jurisdiction” of the United States excludes the American-born children of undocumented immigrants from citizenship. But this is a fanciful argument that has no basis in law.

All first year law students learn that the first and oldest basis for the exercise of personal jurisdiction is physical presence in the forum state.

In drafting the Fourteenth Amendment, those in Congress believed that the amendment conferred citizenship at the time of birth. The jurisdictional exception to citizenship was meant to address the the children of diplomats and the Native American population on reservations, who until the Indian Citizenship Act of 1924 were not considered to be either American citizens or under U.S. jurisdiction.

And while the Supreme Court has not directly addressed this new-fangled argument that American-born children of immigrants are not subject to U.S. jurisdiction, its past rulings favor birthright citizenship without exception for the parents’ immigrant status.

  • In the 1873 Slaughter-House Cases, the Supreme Court stated in dictum that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
  • In 1898, the Supreme Court in U.S. v. Wong Kim Ark directly ruled that a person born here of immigrant parents is an American citizen, at the time of his birth, by virtue of the Fourteenth Amendment – despite the fact that his parents were subjects of a foreign power at the time (though not in an official of diplomatic capacity). Skeptics point out that Mr. Kim’s parents were noted to be carrying on business in San Francisco and had “permanent domicil and residence in the United States.” The significance of these noted fact is that Mr. Kim’s parents were not diplomats. But neither were they legal residents. Indeed, under the Chinese Exclusion Act then in effect, they likely had the equivalent status of today’s undocumented immigrants.
  • And in the 1980’s, two Supreme Court cases, Plyer v. Doe (1982) and INS v. Rios-Pineda (1985) have noted the Citizenship Clause confers citizenship on those “born in the United States,” even if their parents are “resident aliens whose entry was unlawful” or even were illegally smuggled here.

A top appellate litigator has noted that any effort to abolish birthright citizenship other than by constitutional amendment to the Citizenship Clause of the Fourteenth Amendment would lead to Dred Scott II in the federal courts.

This means that appointments to the Supreme Court by the next president will be key to any constitutional re-interpretation of the Citizenship Clause, along with many other hot-button federal issues. No sane county would make Donald Trump that president.

As the country moves left, so does Hillary Clinton

Originally published May 13, 2015

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Since launching her presidential bid last month, Hillary Clinton has stayed low-key, local and left. Quite a contrast from her last time around, when she emphasized her experience, toughness and centrism. She’s now the feminist grandmother who has embraced liberal policies on immigration, trade, criminal over-incarceration and marriage equality.

Hillary is not just chasing the Democratic base, she’s chasing the electorate – which Gallup polling confirmed on Friday has moved sharply left, most notably on the very social issues that Clinton is championing.

According to Gallup, there has been a swing of 17 points in favor of liberal social policies since the year Barack Obama took office in 2009. Gallup has been polling Americans’ self-description of their views on social policies since 1999, at which time those who considered themselves to be conservative or very conservative numbered 39% to a much lower 21% self-described as liberals or very liberal. The gap between the two started to narrow in the last term of the George W. Bush Administration before widening again in Obama’s first year – perhaps in reaction to the uncertainties unleashing by the Great Recession.

Since 2011, however, the trend line has found liberals gaining ground quickly and conservatives losing it – so that today, the ideological camps are even at 31% each. The present tie in the liberal-conservative divide is the first time this has happened and the liberal’s best showing ever.

Some of the liberalization in the electorate can be ascribed to folks changing their minds. But a good chunk of it is a change in the very makeup of the electorate itself.

According to a Pew Research Center projection done during the last presidential election, the demographics of the American people will undergo a radical makeover by 2050:

  • Hispanic share of the U.S. population as high as 29%, up from 17%
  • Black proportion of the population projected to rise slightly to 13%
  • Asian share projected to increase to 9% from 5%
  • Non-Hispanic whites, however, will decrease to less than 50% of the population from 63%

Within the Democratic base, those that described themselves to Gallup as liberals are up 10 points, while moderates are down 5 points and conservatives down 6 since 2012. Even among Republicans, self-described conservatives are down 4 points, while moderates and liberals are up several points each.

So Jeb Bush was on to something when he said that a successful GOP candidate would need to “lose the primary to win the general [election]” – although Jeb is on track to win neither.

The reverse may be true on the Democratic side: a successful candidate can both win the Democratic primary as a liberal and the general election on the same platform. This is a pretty stunning turn of events from the Reagan years when the president made “liberal” a dirty word. Perhaps the change in attitudes is both a backlash against the narrowness of 1980’s conservatism along with the changing demographics.

The same Gallup poll on Friday showed that on economic issues, conservatives still lead liberals by 20 points – 39% to 19%. While this is a pretty wide margin, it is also the smallest margin since Gallup has been polling the issue since 1999.

So I wouldn’t expect Hillary to stake out much more populist positions on tax and spend policies – which is too bad but probably still reflects the ghost of Reagan. But changing attitudes also underscore the Republican’s desperation in the presidential campaign. They can’t run on social issues without looking extremely retrograde and alienating the bulk of voters, especially the young. They can’t run on the economy because it has improved markedly since Obama was elected, and if anything, the issue of economic inequality helps Democrats, not Republicans.

Instead, Republicans have settled on foreign policy – on which few vote – and Clinton scandals – about which only they care – as their campaign themes.

Certainly, circumstances can change in the next year and a half before the election, and new events will alter the calculus. But for Hillary, that old Satchel Paige saying may be apt: “Don’t look back. Something might be gaining on you” – this time, in a good way.

Ukraine shows history has not ended, or returned to the 19th Century

Originally published March 8, 2014

In the summer of 1989, Francis Fukuyama published his famous essay “The End of History?” Do recent events in Ukraine validate Fukuyama’s use of a question mark instead of an exclamation point in his title?

2014 Paralympic Winter Games - Opening CeremonyFukuyama’s essay was inspired by the end of the Cold War and came only months before the fall of the Berlin Wall in November 1989, a little less than a year before the reunification of Germany in May 1990 and a little more than two years before the dissolution of the Soviet Union itself in December 1991. The American system of government stood supreme and vindicated at that moment in time, and it seemed there was nothing left for the rest of the world to do but catch up.

Vladimir Putin’s adventurism in Ukraine may not be the first restart of history since 1989, but in it some see retrograde movement back to the great power conflicts of the 19th Century. This turn backward is not preordained and lacking any coherent – let alone inspiring – philosophy will not come to pass.

In writing his essay in 1989, Fukuyama’s thesis was that “it is hard to avoid the feeling that something very fundamental has happened in world history.” And that “fundamental” occurrence was the triumph of the economic and political system of the United States – American liberalism, classically defined – over all other forms of government, whether they be authoritarian, totalitarian or some other unsavory flavor.

“. . . . [T]here is some larger process at work, a process that gives coherence and order to the daily headlines. The twentieth century saw the developed world descend into a paroxysm of ideological violence, as liberalism contended first with the remnants of absolutism, then bolshevism and fascism, and finally an updated Marxism that threatened to lead to the ultimate apocalypse of nuclear war. But the century that began full of self-confidence in the ultimate triumph of Western liberal democracy seems at its close to be returning full circle to where it started: no to an ‘end of ideology’ or a convergence between capitalism and socialism, as earlier predicted, but to an unabashed victory of economic and political liberalism.”

The evidence for his thesis was the pending demise of Soviet communism, under glasnost and perestroika, and the commercialization of China.

Proposing an alternative thesis in light of events in Ukraine, Peter Beinart opines this week in the Atlantic,

“Vladimir Putin’s military intervention in Ukraine doesn’t represent as sharp a historical break as 9/11 did, but it does offer the clearest glimpse yet of what the post-war on terror era may look like. To quote Secretary of State John Kerry, what comes after the war on terror is the ‘19th century.’ . . . . [T]his new era will be more like the 19th century than either the bipolar, ideological Cold War, the relatively placid post-Cold War era of the globalized 1990s, or the post-9/11 war on terror, in which U.S. policymakers focused overwhelmingly on terror networks and small, rogue states.”

So does the end of the Cold War and War on Terror necessarily mean the revival of Balance of Power as the predominant theory of our day? Should we break out the old writings of Metternich, Hans Morgenthau and Henry Kissinger for a refresher course on what to expect in the coming decades?

Even Beinart is quick to point out that “[d]emocracy, nationalism, economic interdependence, and human rights are stronger forces in today’s world,” marking obvious differences between the 21st and 19th centuries.

But Fukuyama’s original 1989 essay foresaw nationalists, like Putin, and declared them not to be a worthy, long-term adversary of liberal capitalism:

“. . . [I]t is not clear that nationalism represents an irreconcilable contradiction in the heart of liberalism. In the first place, nationalism is not one single phenomenon but several, ranging from mild cultural nostalgia to the highly organized and elaborately articulated doctrine of National Socialism. Only systematic nationalisms of the latter sort can qualify as a formal ideology on the level of liberalism or communism. The vast majority of the world’s nationalist movements do not have a political program beyond the negative desire of independence from some other group or people, and do not offer anything like a comprehensive agenda for socio-economic organization. As such, they are compatible with doctrines and ideologies that do offer such agendas. While they may constitute a source of conflict for liberal societies, this conflict does not arise from liberalism itself so much as from the fact that the liberalism in question is incomplete. Certainly a great deal of the world’s ethnic and nationalist tension can be explained in terms of peoples who are forced to live in unrepresentative political systems that they have not chosen.”

Fukuyama did forecast that the Russians were at a fork in the road. They could either start down the path of market liberalism staked out by Western Europe at the end of World War II or “remain stuck in history” based upon a recurrent “chauvinism.” Still, he believed that whichever path Russia chose “we have already emerged on the other side of history.”

Writing on Ukraine this week in his New York Times column, Thomas Friedman updated Fukuyama’s theorem in light of current events:

“Any man who actually believes, as Putin has said, that the breakup of the Soviet Union was ‘the greatest geopolitical catastrophe’ of the 20th century is caught up in a dangerous fantasy that can’t end well for him or his people. The Soviet Union died because Communism could not provide rising standards of living, and its collapse actually unleashed boundless human energy all across Eastern Europe and Russia. A wise Putin would have redesigned Russia so its vast human talent could take advantage of all that energy. He would be fighting today to get Russia into the European Union, not to keep Ukraine out. But that is not who Putin is and never will be. He is guilty of the soft bigotry of low expectations toward his people and prefers to turn Russia into a mafia-run petro-state — all the better to steal from.

“So Putin is now fighting human nature among his own young people and his neighbors — who both want more E.U. and less Putinism. To put it in market terms, Putin is long oil and short history. He has made himself steadily richer and Russia steadily more reliant on natural resources rather than its human ones. History will not be kind to him — especially if energy prices ever collapse.”

So, yes, we can see events in Ukraine through the lens of realpolitik, the repatriation of Crimea to its regional Russian hegemon and Putin’s assertion of a 19th Century version of the Monroe Doctrine among former parts of the Soviet Union.

But as a universal theory of international relations, the world has spun tens of thousands of times on its axis since the 19th Century ended, and nostalgic nationalism is really no match for the positive, forward-looking philosophy that has been America’s contribution to historical progress. Some veterans of the Cold War have noted that Russia’s own embrace of market capitalism makes a return to the bad old days improbable. It’s a little early in the 21st Century to embrace a wholesale paradigm shift in foreign policy that requires a 200 year throwback in history.

Fiscal Cliff deal shows a Tea Party unable to govern

Originally published January 2, 2013

There was one distinct faction missing from the bipartisan group of legislators that passed the “fiscal cliff” deal on New Year’s Day: Tea Party Republicans. Indeed, the compromise bill won only because Speaker John Boehner bypassed the Tea Party members of his caucus and allowed Democrats in the House to join with more mainstream Republicans voting in favor. This is now the second time in as many years that the Tea Party minority has almost caused our country to suffer a needless fiscal calamity. This year’s “fiscal cliff” deadlock, which is really just a continuation of last year’s debt ceiling showdown, shows that the Tea Party is utterly incapable of engaging in the art of politics necessary to govern.

House Republicans Address Media After Conference Meeting

Heading into CNN’s eleven o’clock hour of New Year’s Eve coverage, Anderson Cooper had to inform viewers that the festivities might be interrupted –not by Ryan Seacrest, but by Joe Biden. The vice president had just struck a deal with Senate Republicans to avert the midnight deadline for going over the “fiscal cliff.” Co-host Kathy Griffin, as usual, had a quick comeback. She was not happy about the possible interruption and blamed the Tea Party, singling out Rand Paul for special criticism. Anderson pretended to maintain his evenhanded treatment of the political parties, but Kathy was right. Although Biden didn’t make a public statement, the reason many of us were flipping stations last night was to see if the last minute brinkmanship would result in a deal. Biden and Republican Senate Minority Leader Mitch McConnell, of all people, struck a bargain just before midnight, which passed the Senate in the early morning hours by a huge 89-8 majority, including 40 of 45 Senate Republicans. Notable nays included the aforementioned Senator Paul, along with the other Tea Party darling, Marco Rubio.

Boehner,Cantor Discuss Job Creation And Employment At The CapitolBoehner then spent almost all of New Year’s Day trying to keep his House Republicans from amending the Senate compromise and scuttling the deal. In order to pass the Senate bill, the speaker had to abrogate the so-called “Hastert Rule.” Named for the last Republican speaker, the Rule only allowed Republicans to bring a piece of legislation to the floor if it would garner a majority of the Republican vote. In other words, even if a bill could pass the House by a majority vote derived from both parties, the Hastert Rule meant that the speaker would exercise his parliamentary prerogative to block an up or down vote on any legislation not supported by a majority of his caucus. And there is no way to reach this majority of a majority threshold without the Tea Partiers – thus, granting this reactionary minority veto power.

Well, no more. At least for today. The “fiscal cliff” compromise passed by a vote of 257 in favor to 167 against. Democrats voted 172-16 in favor while Republicans votes 151-85 against.

Incredibly, the speaker, who generally doesn’t need to vote, went on record as in favor, while his supposed deputy, House Majority Leader Eric Cantor, went the other way. Was Cantor looking ahead to Thursday’s vote for the House speakership?

House Deliberates On Budget Deal Past Fiscal Cliff DeadlineAll of the high profile House Tea Partiers – from Michele Bachmann to the now-defeated Allen West and Joe Walsh – joined Cantor. Paul Ryan, demonstrating either leadership or his inner-Romney, came out in favor. But the up-and-coming crop of Republicans, including Jeff Flake, Tim Scott, Mike Pence and Shelley Moore Capito, all voted nay.

In the Federalist Papers, James Madison expressed his most profound worry over the Tyranny of the Majority – the fear that a majority faction would come to deprive powerless minorities of their rights. One suspects that Madison did not foresee the modern day Tea Party, a minority of zealots seeking to deprive the majority of sensible governance by refusing to govern. For about a minute, it looked like President Obama’s reelection in November had vindicated Madison’s constitutional design, with it anti-majoritarian checks and balances. Now it appears that we may face at least three more mini-fiscal cliffs upcoming in the just the first quarter of the New Year: the debt ceiling, sequestration and the continuing budget resolution.

Today’s “fiscal cliff” compromise does show a way forward, but it requires a bipartisan majority to have their voices heard and not vetoed by parliamentary maneuvers of the Tea Party minority intent on making government unworkable.

Gay marriage, the absurd reduction of Scalia’s “homosexual” jurisprudence

Originally published December 12, 2012

Supreme Court Justices Scalia And Breyer Testify Before Senate Judiciary CmteHow do we know that Associate Justice Antonin Scalia is a Republican? When he opens his mouth, as his did today during a lecture on the Constitution today at Princeton University, culturally retrograde bile slips out.

Here is how Scalia responded to a student’s query as to how he justified untoward comparisons of homosexuality to murder and bestiality in his official writings for the Supreme Court:

If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?

Scalia explained his hyperbole as a form of “effective” argument:

It’s a reduction to the absurd…. I’m surprised you weren’t persuaded.

The student, Duncan Hosie, wasn’t persuaded, and later explained that his objection was as much to the Scalia’s debased language as to the argument itself.

This the same sort of nonsense that we saw during this past election season – loose Republican talk about “legitimate” rape, aspirin-between-the-knees contraception and “God intended” pregnancies that result from rape. Ann Romney may have “love[d] you women,” but you women didn’t return the compliment.

It is not an exaggeration to say that conservative position on social issues, including gay rights, abortion and immigration, helped the GOP lose the White House and Senate.

Supreme Court Justice Scalia Joins Book Discussion In WashingtonIn re-reading his dissent in Lawrence v. Texas, where Scalia first raised his murder-bestiality reductio ad absurdum, the Justice inadvertently provided a roadmap for the legalization of gay marriage. Writing for the majority in Lawrence, Justice Kennedy held that anti-sodomy laws – which essentially outlawed private sexual relations between consenting gay adults – did not pass the rational basis test needed to justify any state action. Scalia’s rebuttal, contrary to being absurd, showed the rather logical extension of the Court’s ruling.

At the end of its opinion – after having laid waste the foundations of our rational-basis jurisprudence – the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”… Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”…

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring…;” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,”…?

He answers his own questions thusly:

Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Can’t argue with that rather logical, non-absurd conclusion.

Supreme Court is likely to deliver a split ruling on gay marriage

Originally published December 8, 2012

55af98ea21792429ee730651952f0f5aThe Supreme Court, headed by the crafty Chief Justice John G. Roberts, Jr., has a clear path to affirming the states’ rights to define marriage while further entrenching conservative judicial doctrine. The High Court is likely to strike down the federal Defense of Marriage Act (“DOMA”), while upholding California’s Proposition 8. Such a split ruling will mean that the U.S. government has no right to define marriage as a union of one man and one woman and must recognize same-sex marriage in those nine states that currently permit it. But, significantly, it will not federalize the right to marry and, on what could be characterized as Tenth Amendment grounds, leave each of the 50 states define marriage as a local matter.

Given the rapidly accelerating political acceptance of same-sex relationships, a split decision may, paradoxically, both advance the cause of gay rights, while setting back the broader goal of social justice.

If the Chief Justice can fashion such an opinion, it will be of a piece with his ruling on the Affordable Care Act of last term – which upheld “ObamaCare” based upon Congress’ power under the Taxing and Spending Clause of Article I, Section 8 of the Constitution, but not under its Commerce Clause. Just as President Obama is often said to be playing the long game, so is Roberts. He is continuing the anti-federalist project begun by his predecessor, Chief Justice Rehnquist.

Supreme Court Decides Whether Of Not To Review Challenge Of California's Prop 8Roberts’ legacy agenda is to reign in the ability of the federal government to engage in projects of national import and return the county to a pre-New Deal cramped federalism – with its negative implications for the social safety net, workers’ protections and civil rights. To achieve that goal, he may continue fashioning conservative judicial remedies while embracing what on the surface appear to be progressive results: universal healthcare and limited federal recognition of gay marriage. And he can do so while avoiding the public perception of judicial partisanship sparked most prominently by the Court’s decision handing the presidency in 2000 to George W. Bush in Bush v. Gore.

There is a commonality between Bush v. Gore and the Proposition 8 case in the form of its solicitors: Ted Olson and David Boies. They were opposed on the former and decided to unite to block the latter. The professional, gay rights community of lawyers, however, has never been convinced that a constitutional challenge to Proposition 8 was the best vehicle to advance the cause of gay marriage. They had designed the anti-DOMA cases which have been racing through the lower courts to get the issue to the Supreme Court first. Olson and Boies tied them at certiorari.

Here’s the difference between the two approaches: To strike down Proposition 8 on constitutional grounds would likely require the Court to embrace a same-sex, federal right to marry, which could potentially redefine marriage in all 50 states of the union – whereas it could find DOMA to be an unconstitutional federal intrusion into local matters traditionally left to the states.

All that being said, there is an outside chance that Circuit Judge Stephen Reinhardt (who authored the Ninth Circuit opinion affirming Proposition 8’s unconstitutionality) is the smartest legal thinker in the land. He narrowed the original District Court opinion to the particular and limited factual pattern of Proposition 8: where a state initially gives but then decides to take away important rights for no obvious rational reason other than animus toward a minority group. Where District Court Judge Vaughn Walker had struck down Proposition 8 using broad, sweeping language finding a constitutional right to gay marriage under the Equal Protection Clause, Judge Reinhardt refashioned the foundation of the ruling to almost precisely copy the rationale used by the Supreme Court in Romer v. Evan to find Colorado’s Amendment 2 unconstitutional. Supreme Court Associate Justice Anthony Kennedy authored Romer, and Reinhardt’s opinion reads like a brief tailored to win the favor of this one, sometimes swing, justice.

I am, of course, hoping that Judge Reinhardt’s opinion becomes the law of the land, which would allow the Supreme Court to move incrementally by changing the definition of marriage in at least one state, California, and letting the political process play out in the others that don’t now recognize same-sex marriage. But the “Reinhardt” option may be a bridge too far for Kennedy – and Roberts.

And at the end of the day, a split ruling may still advance the cause of gay marriage without risking the political backlash that a clean sweep would. The liberal-New Republic-Alexander Bickel critique of Roe v. Wade was that it federalized abortion law just at the time many states were moving to decriminalize the procedure. The result has been a 40 year social, judicial and political battle over abortion because so-called “unelected judges” imposed their view from on high – rather achieving the right to choose through the political process. Yes, it does seem to me that same-sex marriage is a fundamental right, deserving of Equal Protection Clause protections. But I also recognize that in a democratic republic such as ours, rights of minority groups are more “legitimately” and permanently won at the ballot box and by changing the opinion of the People – and their elected representatives.

I am, frankly, more concerned about the stinking time bombs that Justice Roberts planted in the Affordable Care Act ruling – and may plant in the gay marriage ruling – which is all the more reason that I can sleep a little more soundly knowing who will be making the next nomination to the Supreme Court should there be an opening in the next four years.

California Republicans are not coming to terms with electoral defeat

Originally published November 15, 2012

I was attending a civilized post-mortem today of the 2012 presidential campaign hosted by the Chancery Club, a Los Angeles bar group, when things got interesting. The two panelists, one Democratic the other Republican, were dutifully recounting much of what has already become conventional wisdom as to the causes of Obama’s victory:  from superior Democratic get-out-the-vote analytics to changing demographics to the powers of incumbency (including looking presidential and bipartisan during a Hurricane Sandy).

My own view, by the way, is that to the question as to whether the Democrats had the better candidate, message or electorate, the answer is, decidedly, “yes” – to all 3!

The Democratic speaker at the luncheon, former Commerce Secretary Mickey Kantor, had voiced the hope that the Republican Party would not, in the future, get so side-tracked with “exotic” social issues (read: “legitimate rape”) because, in our democracy, it is important to have competitive parties to keep each other honest.

Then former Governor Pete Wilson, who also happened to be in attendance, was asked if he wished to add anything. And did he.

National Tribute Service Honors The Life Of Betty Ford

Former Governor Pete Wilson

Wilson, of course, is the political author of the anti-immigrant Proposition 187, which has likely consigned his party to permanent minority status in the State of California for the foreseeable future.  And his remarks proved that he has learned nothing from the experience. He went on for 10 minutes as to why the Democrats won:  it was the money of the proliferating public employee unions that fund themselves in an “immoral” fashion through automatic pay-check deductions.  Seriously, that was his answer!

Never mind that Californians had just voted down Proposition 32 aimed at gutting the ability of the unions to compete with generally better-funded corporate interests.  Never mind that, if anything, the public sector has been shrinking during the Great Recession and shedding jobs because House Republican refused to pass the American Jobs Act and spend additional money to keep teachers and firefighters and policeman on the job.  Never mind that one attendee had just spoken movingly of his Latino and American heritage and wondered when the Republican Party would embrace sensible emigration reform.

No, according to Wilson, it was the public unions that had stolen the election for the Democrats, and California had better start embracing pro-investment reform or we will be lost.

Again, never mind that California’s top budget Legislative Analyst just announced yesterday that due to the passage of Proposition 30 and a recovering economy, our state can expect to have a much-reduced deficit this year and likely surplus by 2014.  Never mind that the real missing ingredient in the recovery has been renewed aggregate demand – meaning the buying power of the middle class, who are represented in many cases by unions.  And never mind that the former governor had no new ideas as to how his party could make amends with the growing Latino electorate in this state and across the country by proposing anything other than guest-worker status to benefit the interests of businesses.

If Governor Wilson’s remarks are indicative of those of his party, then it will be indeed be a long road back for the GOP.