Monthly Archives: October 2020

Texas-sized efforts to Suppress the Vote

The Voting Rights Act, which, among other things, makes it a federal crime for anyone to intimidate voters (Amy!), has become very porous since the 5-4 Supreme Court ruling in Shelby County v. Holder (2013). The 1965 law recognized the ongoing need to deal with the new and ingenious forms of legal discrimination devious vote suppressors would devise in the future. Section five of the law required federal pre-clearance for any changes in voting laws that would have a disparate impact on different groups of voters in the state. It is Section Five, this federal review for bias and voter suppression, that John Roberts [1] and the four other right wingers on the Supreme Court did away with in 2013.

In that case the right-wing majority held that, in a “post-racial” society like ours, where racism no longer rages, the 1965 Voting Rights Act no longer requires constitutional pre-clearance before any state can change its voting laws to make them more restrictive. State voting laws are now presumed to be unbiased and in compliance with the Voting Rights Act, no matter how selective they seem or what the history of bias in the state might have been, absent proof of actual bias in a federal lawsuit. The ruling shifts the burden (and expense) for proving bias in election laws onto the citizens and off of the state.

This kind of subtle, yet in-your-face, curtailment of guaranteed rights is what Thomas Jefferson meant when he said “the price for democracy is eternal vigilance.” Dig it.

Texas is among the states that have gone to work since the anti-voter decision in Shelby County. The devil, as always, when devils do their devilish best, is in the diabolical details.

Here is Bill Moyers talking to election lawyer Ben Clements and John Bonifaz who are fighting ongoing cases against voter suppression. I’m going to break up this transcript with a few bold-face headlines (with a “fuck you” shout-out to WordPress engineers for their excellent work in making this all but impossible)

BILL MOYERS: I see that you’re involved in a case in Texas involving the Voting Rights Act concerning a safe and secure election during the pandemic. What’s that about?

BEN CLEMENTS: So the case challenges a number of laws and policies in Texas that particularly as they’ve been implemented during the pandemic have made it very, very difficult for people to vote safely. And the key part of the law that we are currently seeking to have the district court in San Antonio strike down is the governor’s mask mandate order.

The governor of Texas issued a mandate in an order last July requiring masks to be worn in almost all public places in Texas with just a handful of exceptions. But one of the exceptions, oddly enough, was for polling places.

So it specifically says that voters are not required to wear masks when voting or when standing in line to vote. Poll workers are not required to wear masks. And so if you want to go vote safely in person you have no choice but to risk being exposed to other voters and to poll workers.

And the secretary of state has issued further guidance saying that the poll workers can require the voter to take their mask off when showing their identification. So essentially, requiring voters to go face to face with a poll worker that does not have a mask on, and you take your own mask off. Now, this is all compounded by the fact that Texas is among the very worst states for providing alternatives to voting in person.

They do not allow you to vote by mail unless you have a medical or other health necessity. And fear of contracting COVID-19, Texas authorities have said, does not qualify. They make it very difficult to vote curbside if you can get yourself into the polls physically, then you’re not permitted to vote curbside.

So for the vast majority of Texans, they have no choice, if they want to vote, but to go do so in person. And as a result of this exemption in the governor’s order, to do so by exposing themselves, potentially for a long period of time because Texas also has very, very long lines in many of their counties and this claim is also under the Voting Rights Act. And particularly, as a discriminatory exemption. Because as we know COVID-19 affects Blacks and Latinos much worse than it does white people in terms of the likelihood of being infected and in terms of the severity and the risk of death if they are infected. And it’s been pretty well documented that that is all of the result of underlying, systemic racism in this country. And particularly in Texas. So we’re awaiting an order from the judge. We’re hopeful that he will order the exemption removed so that people are required to wear masks at the polls.

BEN CLEMENTS: I don’t think there’s any question that on one level, it’s extremely political. I mean, the only justification that the state can come up with for this exemption is their claim that some people just don’t want to wear a mask. It’s not just the poll workers who are exempt. Voters are exempt. And so if you want to go vote without a mask, because you don’t care about possibly infecting other people, you’re entitled to do that in Texas. And the Texas authorities claim that they need to do that because people should have the right to go vote without a mask if they want to. Now, that decision that they are more concerned about protecting the interest of someone who feels that it’s a personal affront to have to put on a mask than they are in protecting those people who feel that it’s not just a personal affront, but a risk to my safety and my health and possibly my life to be exposed to these people who won’t put a mask on, that they have made that choice.

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The position of the good, Republican authorities in Texas, doing their best to get their candidate back into the White House, is that since wearing a mask offends some people, nobody will be required to wear one and if you want to vote safely then — be a pussy, stay home and don’t vote:

“That decision [to not require masks during voting] that they are more concerned about protecting the interest of someone who feels that it’s a personal affront to have to put on a mask than they are in protecting those people who feel that it’s not just a personal affront, but a risk to my safety and my health and possibly my life to be exposed to these people who won’t put a mask on, that they have made that choice…”

That shit speaks for itself.

[1]

BILL MOYERS: How much has the Voting Rights Act been hurt by that decision of the Supreme Court, enabled, inspired by John Roberts? Who, as a young member of the Department of Justice, wrote a memorandum to his bosses laying out a strategy for undoing the Voting Rights Act that he then, once on the Supreme Court, began to implement?

JOHN BONIFAZ: He started very early during the Reagan Justice Department.  He did not want President Reagan at the time to extend the Voting Rights Act.  He lost that battle as a young attorney in the Reagan Justice Department. But then, of course, he ascended to the Supreme Court. And in the Shelby County case in 2013, he invalidated Section 5. And what we’ve seen as a result is a sweeping set of voter suppression laws and restrictions throughout the South, throughout the areas that were subject to Section 5 preclearance, including states like Texas.

BEN CLEMENTS: That decision in Shelby that gutted Section 5 and other decisions in other areas such as Affirmative Action, Justice Roberts has been animated by this idea that racism in this country is not a problem anymore. That we don’t need Section 5 of the Voting Rights Act because those states that used to engage in suppression of non-white people’s votes don’t do that sort of thing anymore. And the very painful irony is in his insistence on gutting these efforts, he has helped usher in a resurgence of systemic racism and and in particular, voter suppression often on racially-based lines as a result of some of his rulings.

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To Worry or Not To Worry

When I used to work as a judicial pissboy in New York City Housing Court, standing in the broken shoes of tenants too shaky to defend themselves from eviction and homelessness, I often found myself trying to reassure the more nervous of them. I did this with the great confidence born of experience and knowledge.

“I know this is very scary to you, terrifying even. Anyone would be shaken up at the prospect of being evicted from their home. It’s natural to be worried, but there is no reason to worry, and I tell you this with complete confidence. Please try not to worry unless I tell you there’s reason to be worried, and there won’t be. I know the outcome of your case because I’ve done this hundreds of times, I’ve had this identical situation many times and never was anyone evicted. Under the law, before you can be evicted, the judge has to (blah blah blah). This will not happen. My role is to get us enough time to get the small grant needed to end the case against you. The grant will come, 100% though it will take time. I will get the time for the grant check to be released, I’ve done it countless times, I’m an expert in getting more time. I can get more time even in the worst case scenario, when the marshall posts an eviction notice on your door– something that won’t happen in your case. I mention this because even if it does happen, I can stop it. There’s nothing legally unusual about your case, it’s very straightforward, a good outcome is a 100% certainty. So I understand it’s hard not to worry, but please try not to worry unless I tell you there’s something to worry about. In this case, you won’t hear that, since there is literally nothing to worry about.”

Sometimes they’d seem reassured, other times I’d get calls every other day from them, beside themselves with terror. My words were probably true, they acknowledged, but, to the nervous ones, there was always a first time, the unforeseen, the terrifying deathlike long-shot that would find them cringing in a doorway, dirty and unhoused, on the coldest day on record. In their worry they could even believe every word I’d said, but, the thought that would have them bolt upright in the middle of the night was “OK, but what if anything happens to this guy? What if he has a stroke and they replace him with someone who has not done this dozens of times?” There is no answer to that kind of worry. It’s not even, strictly speaking, unreasonable. It’s useless though, and constitutes a kind of self-torture. But I can see their point, suppose I’d died and an inexperienced guardian ad litem was appointed?

I once heard of a case where the tenant had not brought up an obvious defense and was evicted. The defense was so obvious that a reasonable judge may even had a duty to bring it up — but this judge didn’t and nobody knew to appeal her silence. The tenant was evicted, though he should not have been, under the law. I questioned the colleague who told me about this case, an Israeli-American lawyer with a substantial Israeli accent. I was surprised to learn that the tenant had been represented by a lawyer. A lawyer who did not raise the obvious, winning defense, the defense that would have prevented his client’s eviction.

“What was the lawyer, a schmuck?” I asked him.

“Schmoke,” he said in a singsong cadence, with a beautiful little shrug, pressing the button for the elevator.

I’m not saying the world is not filled with schmokes, people too stupid to know how stupid they are. The stupider the person, we find, the more confident and unshakable they are in their opinions and beliefs. You can pile all the evidence you like on one side of the scale, you can prove your case, beyond a shadow of a doubt, with no reasonable argument on the other side, and a person impervious to a factual argument will dismiss it with “so you say…” Facing this kind of stupidity is generally not a major problem in life, we can learn to recognize it, remain neutral when stupid people begin to argue and get away from them as soon as possible. The stupidity of others only becomes a problem when they have any kind of power over us.

So if, the other day, when we have the highest number of COVID-19 infections in a single day, and over 1,000 COVID deaths, your candidate boasts confidently “we have defeated COVID, COVID, COVID!” — you might be able to excuse your candidate’s obscene and obvious lie (because he’s protecting the unborn, giving you a million dollar tax break, whatever) but you will have a hard time defending it as a truthful statement. Which doesn’t matter, of course, if everybody else you know is in the same kind of patriotic denial you are. You might all sneer, and laugh and agree “like the man says, just more pure Socialist Democrat Antifa bullshit propaganda– nobody died from COVID-19, ever! We had fifteen cases, it went down to zero, like the president said, done.”

There are millions of unreasonable people in our great land, millions of stupid people, sad to say. They will vote in great numbers for Donald J. Trump, no matter what. He speaks directly to their emotions, he wants vicious revenge on the same people they hate (did you know American citizens of limited income who had at least one immigrant in their household with no Social Security number got nada when those onetime $1,200 relief checks went out? [1]). He announces his vitriol openly, without dancing around the point like some double-talking pussy politician afraid not to be “politically correct”. He’s as true as the North Star the same as he was as a ten year-old millionaire with a fist full of grievances against an unfair world where entitled Negroes, Puerto Ricans and Mexicans get every break — where the white man doesn’t stand a goddamned chance!

As far as I can see, there are millions more Americans who can make a basic cause and effect connection. The president’s mishandling of the pandemic, alone, should cost him the vote of every American who is not either dumb as a pile of turds, too full of hatred to see past his rage, or is making a ton of extra money because of this rich man’s president. The number of American’s with at least some discernment, I have to believe, exceeds the number of people who absolutely don’t give a shit about anything but their grievances. I have to believe this.

The U.S. has 4% of the world’s population and 20% of the world’s COVID-19 cases — a 500% disparity. We lead the world by an impressive margin in the number of COVID-19 infections and deaths. This is directly attributable to the president’s abdication of responsibility for a coordinated national response to controlling the pandemic. He put the problem of controlling a wildly spreading, deadly worldwide disease squarely, and ridiculously, on each of the states and the several “territories”.

He appointed a religious fanatic and his own unqualified son-in-law to head the team in charge of the federal response. The unqualified son-in-law brayed like a challenged six year-old about who owned the federal stockpiles of equipment (PPE) desperately needed to control the spread of deadly disease, at a moment when states were competing for a very limited supply of PPE. It doesn’t belong to the states, the young man at the podium insisted indignantly, those are our stockpiles. Our’s.

Thousands upon thousands of American died (and continue to die) brutal, solitary deaths they didn’t need to die, from a disease they didn’t have to catch, in part because one spoiled billionaire, appointed by another, was pouting about who owned what instead of addressing what needed to be addressed to prevent massive exposure and deaths during what his father-in-law correctly called a plague We now know Trump was aware of the severity of this deadly airborne disease as early as February 7th when he told Bob Woodward about it, for the record.

America’s 614 billionaires have collectively increased their wealth, over the course of the pandemic, by almost a trillion dollars. They can vote for whoever the hell they want at this point, you would think. A bunch of vocal, prominent ones, and a cabal of more secretive ones, want their golden boy back for four more years. Why not? They’re making out like bandits. Current technology allows them to engineer razor thin Electoral College majorities to get their candidate into office by margins of 0.02% and 0.07%. The Electoral College is designed to foster minority rule, if it comes down to it.

But these are all dumb, boring facts, and we live in an alternative-fact, faith-based universe now.

So why shouldn’t you be worried?

There has been record early voting for the next president, much of it in person. Young people are voting in record numbers. This appears to be a tidal wave of votes against the wildly incompetent, cruel incumbent, though we can’t really know one way or the other at this point. I know 2016 was a sickening shock to 60% of America, and a seeming proof that the “popular vote” makes no difference in the outcome in our system rigged for the super-wealthy, but the political landscape this time is much different.

For one thing, the president has spent four years actively telling tens of millions of people in “Democrat” states to go fuck themselves, over and over, including during this pandemic. He hasn’t done much for most people in Republic states either, outside of billions of taxpayer dollars to farmers he screwed during his lost trade war with China (I know, I know — we own China now, which is why they are helping Biden…) particularly when it comes to minimizing deaths from this awful disease.

39% love Trump no matter what, they always will. As he said, he could shoot somebody in front of his multimillion dollar tower on Fifth Avenue and he wouldn’t lose any votes. His lawyers made the same argument in federal court, managing to keep straight faces. They stated that he couldn’t be arrested for shooting somebody in the face on Fifth Avenue

39% love him. At least 50% do not. In this election it appears that much closer to the 60% who hate this guy, for his actual record, for what he has shamelessly done, for what he does and promises to do more of, how he provokes, lays out a feast of divisive hatred at every infectious rally he holds, violating health regulations in state after state, are turning out to vote against him. Millions of first time voters are coming out of their indifference to vote this clown out. Women, who unaccountably voted for this misogynist, white women gave him a majority of his votes (maybe he’s right about them…) against Hillary Clinton, as a group seem to have finally had enough of Trump. At this moment we can’t know how these millions of votes have been cast, but to me the signs look pretty positive.

Can he still win? Yes. The Electoral College, an eighteenth century constitutional compromise to protect the institution of slavery, may be again surgically tweaked to award this modern day would-be slaveholder the presidency again. It can only happen in a fairly close election — assuming the voting machines in multiple states are not hacked and massive numbers of votes flipped. We are told the states are zealous about guarding against this kind of hacking. The courts can rule that any ballot not arriving promptly by 8 pm on Election Day is invalid. They can invalidate millions of legal votes and fights will continue in court over this, but this will only be a factor if the margin of Trump’s defeat is not decisive and undeniable.

The reason Republicans are in court in over 300 cases in 44 states to limit voting is that they know they are going to suffer a major electoral ass whipping, based on their candidate’s record. It appears they are in the midst of this ass whupping, with record-shattering early voting poised to exceed the total votes cast in 2016. It is crucial for the anti-majoritarian tyranny party to win court cases to limit the votes of people rightfully outraged by too many outrages to count. They will be unable to overcome a tsunami of votes, even if the courts refuse the counting of millions of otherwise valid ballots that come after 8 pm on November 3, no matter when they’re post marked.

Trump has already actively sabotaged mail-in voting, used violence against peaceful protests, illegally withheld funds from “Democrat” “anarchist jurisdictions” during the economic hard times brought on by the pandemic, attacked the governor who was the intended victim of a kidnapping, “trial” and execution, exhorted armed followers to show up at polling places to intimidate enemy voters. He’s not a very nice person (I’ll take a higher road than Keith Olbermann, who finally, and repeatedly, referred to our president as a “piece of shit”).

Trump is also an increasingly desperate guy. He’s at least $400,000,000 in personal debt, and facing numerous state lawsuits, and even the possibility of prison time for tax evasion, once he’s no longer president. He constantly calls on violent supporters to not allow a “rigged election” to be called against him. He actively supports killers on the right and dramatically vilifies any hint of violence during lawful protests — gunshots by his supporters are always justified, broken windows are acts of sick and dangerous anarchists.

Are there reasons to be worried? Yes, certainly. If Trump is president on January 21, 2021, this democracy is over. He has openly violated too many laws and norms to count and will, as is his only way, double down on his brazen lawlessness. The laws he has violated, laws like the Hatch Act, that at one time forced people to resign for violating it, will never be replaced. All norms for civility, decency and basic fairness will be permanently cancelled. We will have open oligarchic autocracy and by rights someone like me, opinionated, reasonably well-spoken, a reader of history who thinks he’s so fucking smart, and has a big fucking mouth, will get what he fucking deserves.

But like I told the worried tenants in whose smelly, worn-out shoes I used to stand, now is not the time to worry.

[1] This bit brought to you by the vicious xenophobes who cannot find the parents of 545 children separated from their parents at the southern border, the same folks who wouldn’t renew the CARES Act:

And one of the biggest populations that was excluded was children and adults in immigrant families. And about 15 million, it’s estimated, individuals in immigrant families were left out. And, you know, most of these kids would have been U.S. citizen children. But the exclusions were particularly harsh here, because if just one adult in the family did not have a Social Security number, no one in the family, regardless of citizenship status or green card status, were able to receive the payment. And so, that has huge applications for families in every state.

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More nuance from the New York Times, and an exoneration of Amy Coney Barrett for her evasion of a direct legal question

Count on the New York Times for nuance on so many questions. In an election where a wildly unpopular incumbent has brought literally hundreds of lawsuits across the country to make voting during a raging pandemic harder — every vote not cast against him is a little victory, bringing him closer to successfully contesting the results of the election. Even a judicially rigged election can only be stolen if it is fairly close.

The president claims to have trained 50,000 staunch supporters to act as poll watchers, doing everything that needs to be done to prevent the massive Socialist, Democrat, Anarchist, Antifa voter fraud that he predicts. Today the NYT brought a little nuance to the question of what constitutes voter intimidation under our laws. I read this stuff and my blood boils a little — partly because of what the paper reports and partly because of the maniacally reasonable, scrupulously non-judgmental manner in which they report it.

Trump’s latest nominee, current Supreme Court Justice Amy Coney Barrett was rushed onto the court to counterbalance fellow former Bush v. Gore attorney John Roberts’s sometimes swing vote (usually to preserve an appearance of court integrity). If Trump can contest the election results in the nation’s highest court, he wants to be assured that the outcome will go the right way. He’s said as much, that why he uses the Federalist Society list to choose his carefully vetted extreme right-wing corporatist justices from. Coney Barrett refused to answer most questions posed to her, including a question about voter intimidation at the polls. She dodged it by saying it would depend on the specific facts. The New York Times had the newest Justice’s back today.

It turns out, according to the Times, and the Department of Justice, that saying exactly what is or is not voter intimidation is notoriously hard to do — it varies so much from state to state, county to county. You can read the entire article here, but I’ll give you one of my favorite bits. See if you can detect what made my head start to explode a little:

In 2008, two members of the New Black Panther Party, a racist Black separatist group [1], stood outside an overwhelmingly Black and Democratic polling place in Philadelphia wearing black outfits that were described as uniforms. One of them held a billy club and identified himself as “security.”

Though officials said no voters complained of intimidation, and no criminal charges were filed, the case became a celebrated cause among conservatives, who criticized the Justice Department for dropping most of a related civil lawsuit after President Barack Obama took office.

That case was handled by local authorities as most disturbances at the polls are across the country: on the spot. The man with the billy club was asked to leave, and he complied.

Other reports of voter intimidation have involved largely legal activity such as voter challenges. Virtually every state allows election observers, sometimes called poll watchers or challengers. Some permit voters to be challenged on Election Day on specific grounds, such as their residency, citizenship, lack of proper identification or because they are believed to have already voted.

In the past some groups have used methods including mass mailings to generate lists of potentially ineligible voters. To prevent the use of such lists, which are often riddled with errors, some states require that the challenger have personal knowledge of the voter’s ineligibility.

The Trump campaign has said it is training 50,000 volunteer poll watchers, which has raised concerns about voter intimidation. In Minneapolis, the police union put out a call on behalf of a Trump campaign official for retired officers to volunteer as challengers in “problem” areas, according to a report in The Star Tribune.

“Poll Challengers do not ‘stop’ people, per se, but act as our eyes and ears in the field and call our hotline to document fraud,” the official wrote in an email, according to the report. “‘We don’t necessarily want our Poll Challengers to look intimidating.’”

Read this article and you may agree with the author, the Times and Amy Coney Barrett — it’s very, very hard to tell which attempts to stop voters from casting a ballot are outright intimidation and which fall arguably within the law. Feelings of intimidation by the voters themselves, it appears, are not the most important consideration when deciding this highly technical legal issue — even if nobody at the polling place feels intimidated or makes a complaint — there can still, legally, be voter intimidation. Conversely, just because armed “poll watchers” might make a steely-eyed military style “I’m watching you, motherfucker” sign at you as you enter the polling place, and you are challenged as being an imposter about to commit felony fraud once inside, does not mean anyone is, necessarily, trying to intimidate you or that you have a legal leg to stand on making such a claim.

We live in America, a land of law. And law is complicated. The reason for that is we have one set of laws for everybody, or, rather, at least fifty sets of sometimes conflicting laws — since criminal, civil, civic and family law are largely matters of state law. This includes election laws. Luckily, in America we have many lawyers available for hire, to tell you what each law may mean for you personally.

Related, but unrelated, is the “American Rule” which states that each side pays its own legal fees in almost all non-criminal cases.   In many other countries, if you bring a lawsuit to harass or intimidate somebody, or to try to get out of paying them what you legally owe them, and you lose — you pay their lawyers and all court fees as well as paying what you owe them.   The American Rule ensures that the wealthy, and large corporations, have an immense advantage in all litigation since they can often simply bankrupt opponents by driving up legal fees (with multiple motions, depositions, discovery demands, etc.) and forcing them to drop the case, or settle for pennies on the dollar.

The American Rule on steroids is when an unprincipled, rich, litigious bastard is able to use the tax deductible donations of other unprincipled, rich, litigious bastards to pay for hundreds of simultaneous lawsuits nationwide to stop the counting of legally cast ballots, in preparation for a Supreme Court challenge in a court those same unprincipled, rich, litigious donor bastards have packed with loyal, ideologically committed supporters. Now, you tell me what is voter suppression, voter intimidation, in that scenario?

Wait, I know, I know.

“Your mother!”

Am I right?

[1]

My hackles were first raised by the seemingly gratuitous description of this party as “racist”. A two second google search showed that this party is not the successor to the Black Panther party but a new outfit founded in 1989, using the brand, but in a way many have called racist. Here’s the link to the google search. The Southern Poverty Law Center blurb, for example, reads: The New Black Panther Party is a virulently racist and antisemitic organization whose leaders have encouraged violence against whites, Jews and law …

Verdict– NY Times reporting on the nature of this outfit likely vindicated.

The Comic Genius of the New York Times

The 6-3 right-wing majority on the Supreme Court is poised to hear the president’s appeal of any voter decision that goes against Mr. Trump, a man who has repeatedly announced that his loss could only be the result of massive voter fraud (that there has never been any evidence for).

If the margin of Trump’s loss is large enough, as one-sided as it should be, even in this zombie apocalypse we are living in, the 6-3 majority will have a difficult job finding even convoluted legal grounds to rule that he is still president. That’s why massive voting in person is so important right now.

It’s encouraging to see the record-shattering early voting across the country in the face of an uncontrolled pandemic. I felt fine waiting 52 minutes yesterday to cast my vote, (all of us wearing masks, keeping 6 feet apart and disinfecting our hands after touching anything) happy to do it, even though my vote was cast in an “anarchist jurisdiction” Trump should lose by a ton of votes.

Amy Coney Barrett bent over backwards yesterday to demonstrate her judicial impartiality, recusing herself from rushing in to break the court’s tie in an emergency Republican appeal of the Pennsylvania lawsuit decided against them by the Pennsylvania Supreme Court and overturn its ruling. This case is intimately related to Trump’s federal lawsuit to limit voting in Pennsylvania, a case thoroughly disposed of by Trump appointee J. Nicholas Ranjan. Ranjan went into great legal detail when he dismissed the Trump campaign and Republican National Committee’s case to limit voting during a pandemic. He returned again and again to the baselessness of their claims, the tenuousness of the few claims that were arguably based in law or fact, and the lack of evidence for them they presented.

The Supreme Court could have overturned the lower court anyway, and possibly even Judge Ranjan scholarly and thorough record of the reasons he dismissed the case (though procedurally there won’t be time to appeal that one in the Supreme Court before the election), if Amy Coney Barrett had decided she could be impartial about it and that there was no way her action in breaking a tie in Mr. Trump’s favor would have appeared inappropriate. That the fate of this ruling was left up to the conscience and discretion of one rushed Trump lifetime appointee is worth being chilled about.

Her decision yesterday is of small importance, really. The Federalist Society majority are saving bigger fish to fry, having ordered the segregation (“separate but theoretically equal” [1]) of all ballots that come in after the polls close on election day. [They didn’t order that, see footnote] Samuel Alito recently reassured his fellow-travelers that the validity of these legally submitted ballots may be re-litigated after the election.

We turn in this perilous moment to the New York Times for some characteristic, though unintended, humor. As much as I respect the Times for some of their invaluable reporting, I also hate them for their sometimes absurdly prissy insistence on a “respectability” that amounts to non-reporting. Both quotes below are from this article on the Supreme Court, which I read while waiting on line to vote yesterday.

Even 20 years later, Democrats still harbor bitter memories from the court’s 2000 decision, given that it ended a hand recount that aides in the Gore campaign believed might have delivered a different result.


Hah! Of course. Only Gore aides believed a full count of the votes cast might have delivered a different result. Like a result based on the actual vote total in Florida, if the recount hadn’t been stopped by order of the Supreme Court just in time? Like an electoral result unaffected by the Roger Stone-engineered Brooks Brothers Rioters who stormed in to violently disrupt the Dade County recount? Like if there had been no interference at other polling places where suspiciously punched “hanging” and “dimpled” “chads” were mysteriously found on Gore ballots during hand recounts? Predictable bitterness by the losers, one supposes, — well, easy enough to understand. Here’s a byte for you:

After an intense recount process and the United States Supreme Court’s decision in Bush v. Gore, Bush won Florida’s electoral votes by a margin of only 537 votes out of almost six million cast and as a result became the president-elect.

Wikipedia

300 of these 573 Florida votes against popular vote winner Al Gore, MORE THAN HALF of Bush’s margin of victory (out of about 6,000,0000 votes) we can see on the table Wikipedia provides, were cast in tiny Liberty County, Florida where Bush voters cast 1,317 votes and Gore voters 1,017.

Makes you kind of think, doesn’t it? How much easier is it to engineer this kind of 54.65% to 42.20% electoral mini landslide using the inconceivably fancy algorithms of 2020? It was done in several states Trump needed in 2016, engineering surgically precise county by county margins of well under 1%.

Not to worry, though, Bush v. Gore was a one off. The Justices who wrote the 5-4 Bush v. Gore decision [2] giving the presidency to future war criminal, and later painter of wonderful animal portraits, George W. Bush, were explicit. The decision would not be cited as precedent– in fact, almost no part of it has ever been cited– except once by a member of that 5-4 majority, Clarence Thomas, and the other day by Kavanaugh.

It will not be cited again, at least not until really, really needed by those who would vote 6-3 in a hypothetical Trump v. Biden. Kavanaugh has already expressed a fascistic willingness to avoid the suspicious appearance of impropriety that continuing to count millions of votes AFTER election day would surely cause. As the dim-witted, ideologically pure, unappealable lifetime political hack wrote the other day, he would manfully prevent:

“the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election.“

Every American knows that runs scored after the eighth inning of a baseball game are never counted, it would flip the outcome of the game and cast suspicion on the entire sport of baseball!

The New York Times, with a puckish punchline:

In an odd coincidence, Justice Kavanaugh worked on the recount litigations in Florida, on the Republican side, as a young lawyer. So did Justice Barrett and Chief Justice Roberts.

Odd coincidence, indeed! As odd as the coincidence that all three were appointed by presidents who lost the popular vote! Can you believe it?

[1] CORRECTION:

The Supreme Court did not order the segregation of mail-in ballots postmarked on or before election day, but received after. It was ordered by Pennsylvania Secretary of State Kathy Boockvar. She did this so that any disputed vote total from Pennsylvania can be shown in two parts — as counted on Nov. 3, and the votes tallied afterwards. Her idea is to preserve the integrity of the votes, rather than have all results thrown out, and Republicans send a Trump slate of electors to the Electoral College as a result of this dispute. She’s hedging Pennsylvania’s (and our) bets if the Supreme Court decides to back a Republican move to have the votes thrown out in their entirety for not following the Supreme Court’s later ruling. If the vote total is thrown out, state legislatures are free to choose which candidate to throw the state’s electoral votes to.

I stand by the fact, of course, that every member of the current 6-3 right-wing majority is a tested, ideologically-driven party zealot chosen, after careful vetting, for his (and now her’s, too) unflinching willingness to do whatever their party requires. The current court’s unified hostility to voting rights is well-documented (see, for example, Shelby County v. Holder== we have a black president, proof that racism is dead and laws against racist voter suppression are no longer needed, long live the future white president!)

[2]

Ah, for happier, more bipartisan days!

That 5-4 majority was composed of the nominees of Republican Presidents George H.W. Bush, Ronald Reagan and Richard Nixon. The four in the minority had been nominated by three presidents: Republicans Gerald R. Ford and George H.W. Bush, and Democrat Bill Clinton.

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“Socialist” vs. “Fascist”

The mass media that in the lead up to the 2016 election gave a billion dollars of free publicity to the truculent blimp who became America’s 45th president is at it still. And why shouldn’t they be? Wasn’t it Reagan who said “the business of America is business”?

The bottom line is a sacred thing in a profit driven culture — it is certainly more important than fairness and accuracy in reporting, critical analysis, reasoned debate. Unrestrained lust for advertising dollars is a bad substitute for judgment, discretion, concern for the harmful public effects of open, notorious collusion with those who have the most money to spend and the fewest scruples about what they’re buying. The crazed pursuit of ever more wealth for the already wealthy exerts a downward momentum of its own, even when no foot is on the gas.

I remember the night in 2016 when Bernie Sanders won numerous primaries. Instead opf broadcasting his speech in front of a fired up crowd, the corporate media had its cameras trained on the empty Trump podium waiting for their meal ticket to show up and make some attention-grabbing remarks. A lingering. longing shot of the empty podium with the Trump sign on it, a perfect symbol for what has gone wrong in America.

I recall the head of CBS, a smug asshole who’d later have to leave the network in disgrace (with a nice chunk of his $100,000,000 severance package, as I recall) after numerous complaints emerged that he’d molested female subordinates, saying he might not agree with Trump’s politics (whatever those might be) but he sure had to love what Trump did for the CBS bottom line. True that, multimillion dollar golden parachutes for sexual abusers do not grow on trees.

John Starks was on the foul line about to shoot two, during crunch time in a playoff final game the Knicks were in, when the network abruptly cut away to watch a helicopter shot of a phalanx of cop cars following a white SUV in which OJ Simpson, with a fake beard and a satchel of cash, was fleeing with his buddy and wheelman Al Cowlings after somebody hacked OJ’s ex-wife and a friend to death outside her home. Why were we suddenly watching that slow motion car chase instead of the NBA finals? Somebody at network made a ratings decision, based on eyeballs and advertising dollars.

Sekhnet worked in the mass media and there are certain broadcasts of public significance she must watch. So I found myself sitting with her as the grotesque Vice Presidential debate unfolded. A debate moderator, a seemingly intelligent and likable woman, was asking questions of the candidates. I found several of them, tailored to the individual she was questioning, flat out shit questions, but it was what the network commentator said afterwards that brought the bile up into my throat. I knew I should have been back in the other room playing guitar by then, so it’s my own fault I was still on the couch, watching the post-game show.

“Mike Pence was masterful,” Norah O’Donnell of CBS said of the overbearing robot’s evasive, wooden debate performance. I snarled at Sekhnet who insisted O’Donnell had misspoken. Then O’Donnell clarified her comment. “He didn’t answer a single question he didn’t want to answer.” That is a masterful debate performance in America in 2020 — “I know you are, but what am I?” “Make Me!” “I make you in the toilet every day!” I know you are, but what am I?”

In this land of proud, assertive idiocy I am always relieved to read intelligent analysis of the shit show that we are all the forced audience for. I am so relieved to hear a story told with full context, without the maddening, stupefying false equivalence that makes a claim of climate change hoax, witch hunt, massive voter fraud or COVID-19 hoax just another legitimate point of view deserving of equal time and respect in the public square. I admire the intelligence, care and clarity of people like Bill Moyers, Jane Mayer, Amy Goodman, Jeremy Scahill, Shoshana Zuboff, Eric Foner, heroic outliers in an age of corporate conformity. (I realize only four of these are journalists).

Recently I’ve become aware of another talented presenter of thoughtful perspective on current events, historian Heather Cox Richardson, lately author of the nightly news digest Letters From an American. Last night she nailed (and gave the historical background of) something so basic that I need to share it here. You can read her full piece here.

She points out that Norah “Pence was masterful” O’Donnell, who interviewed Kamala Harris on the 60 Minutes episode that Trump had enough of when Lesley Stahl unfairly insisted on asking him questions that offended his delicate sensibilities, posed a pointed and unfair question of Kamala Harris, with no equivalent one for the politely fuming Pence.

O’Donnell set up the question by remarking that Harris is the most liberal member of the Senate (Senators Sanders, Warren and others might disagree) and then asked Harris, point-blank, if she was a “socialist”.

Harris laughed a robust little laugh that chilled my blood a bit, then laughed off the suggestion she was anything like a socialist. I was waiting for the steely follow-up “are you, or have you ever been, a member of the Socialist party?”

Heather Cox Richardson lays out the long, sordid history of making the word socialist a political smear in the United States of America. It has long been a sturdy tool of the anit-labor titans who spend so much money to keep the American populace politically unsophisticated. On network TV we have a respected journalist asking a vice presidential candidate, in effect, “are you a crazed, dangerous, America-hating, vicious, nasty, dogmatic monster who will, as the president claims, destroy our cherished way of life?”

All the monster can do at that point is laugh. The laugh, of course, is not a good look, nor a good answer to a loaded, disrespectful question. The fast moving TV format does not lend itself to thoughtful discussion, of course — it’s all about sound bytes, memes and gotchas.

The historian, after describing the long vilification of “socialism”, dating back to the years right after the Civil War, asks why a similar question was not posed to the masterful Mike Pence. Why wasn’t Pence asked to defend himself against the evidence-based charge that he’s part of a fascist administration. Fair point, no?

“Mr. Pence, a lot of your critics claim that you and the president are corrupt pay-to-play authoritarians who give special treatment to wealthy donors and loyalists while using the power of the state to attack, harass and punish critics real and perceived, that your governing style is fascistic. You dole out generous handouts to the already wealthy while imposing pain and suffering on the vast majority during an economically devastating pandemic, use state violence, backed by the Justice Department, to crush constitutionally protected protests, spread false, incendiary, personal smears against opponents and critics, sow fear and hatred between ethnic groups, retaliate against those carrying out their lawful duties, obstruct investigations, intimidate witnesses, prevent the introduction of evidence and witnesses at your leader’s trial, fire government inspectors and watchdogs, call for the jailing of political opponents, repeatedly lie about a massive, deadly, rapidly spreading public health crisis that has already cost over 220,000 American lives — insanely weaponizing proven safety protocols in defiance of science — designate sanctuary cities as enemy territory– “anarchist jurisdictions” and force these cities to bring court cases to get federal funds already allocated to them, support dictators around the globe, slash regulations that protect the public, spread demonstrably false propaganda while insisting that the free press is the enemy of the American people, as is voting by mail … blah blah fucking blah.”

Ah, you know what they say, the masterful few — “I know you are, but what am I?”

In Defense of Democracy

After Abraham Lincoln won the hotly contested four-way race for president in 1860, eleven southern states, standing on their constitutional right to own, sell and keep slaves, seceded from the United States. Lincoln, who won a plurality of the votes and the Electoral College, had not been on the presidential ballot in ten of those slave states. Check that shit out. The candidate the southern states hated WAS KEPT OFF OF THEIR BALLOTS. He won anyway.

No wonder they were mad enough to go to war.

Because since its abolition the idea of slavery increasingly provokes almost universal revulsion, history had to be tweaked a bit over the years to refocus the reasons for secession on States’ Rights and issues with taxation. On the other hand, the drafters of the Declarations of Secession were quite explicit about their defiance of those hostile to slavery. Here is the argument for secession that South Carolina, the first state to secede, promulgated on Christmas Eve, 1860:

… the government of the United States and of states within that government had failed to uphold their obligations to South Carolina. The specific issue stated was the refusal of some states to enforce the Fugitive Slave Act and clauses in the U.S. Constitution protecting slavery and the federal government’s perceived role in attempting to abolish slavery.

The next section states that while these problems had existed for twenty-five years, the situation had recently become unacceptable due to the election of a President (this was Abraham Lincoln although he is not mentioned by name) who was planning to outlaw slavery. In reference to the failure of the northern states to uphold the Fugitive Slave Act, South Carolina states the primary reason for its secession:

“The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution.[2]“

Further on:

“A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery.”

The final section concludes with a statement that South Carolina had therefore seceded from the United States of America and was thus, no longer bound by its laws and authorities.

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As a nation we have had a deep history of ugly, often deadly, partisan skullduggery around elections. It may be hard to top just leaving a candidate you hate off your state’s presidential ballot, though Hans Von Spakovsky and friends are surely well aware of this inspired move and no doubt wistfully approve. American elections have always been nasty affairs.

The seamy journalist (James Callendar) who smeared second president John Adams on behalf of (and paid by) third president Thomas Jefferson later turned on Jefferson (for nonpayment, the rumor goes), publishing scurrilous stories that the Author of Liberty had a longtime slave mistress named Sally and had fathered several children by her. Callendar, a man with a drinking problem, was found not long afterwards drunk and drowned in shallow water somewhere. Nothing to see here. Jefferson’s secret would be well protected for almost two hundred years.

Over the decades countless people were literally murdered for the capital crime of trying to vote, or registering others to vote, in regions traditionally hostile to the idea that certain people be allowed to vote. Violence is a fearsome weapon to deter most things. Would you drag yourself inside to vote after being beaten bloody by a mob while the police stood by, expressionless?

Most of the action to suppress the vote in the US is not done by violence, thankfully, it is done, with even greater effectiveness, by men in robes. Just yesterday, Brett “Boof” Kavanaugh wrote, with characteristic flair, these inspiring and staunchly nonpartisan words explaining a decision that prohibits the counting of votes RECEIVED after election day, no matter when they were postmarked:

“…the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election. And those States also want to be able to definitely announce the results of the election on election night, or as soon as possible thereafter.”

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Suspicions of impropriety, you say? Historian Heather Cox Richardson, who quoted the above language, couldn’t restrain herself from pointing out:

This is the argument Trump has been making to delegitimize mail-in ballots, and it is political, not judicial. Absentee ballots do not “flip” an election; they are a legitimate part of an election that cannot be decided until they are counted. And the idea of calling an election on the night it is held is a tic of the media. In fact, no state certifies its election results the day of the election. Some take weeks.

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Bear in mind, there is no canon of ethics for Supreme Court justices, as we were reminded recently, during the rush to install another Federalist Society justice before Election Day. Supreme Court justices are bound only by their own conscience, or, if they’re partisan ideologues, political expediency.

So in the case of Pennsylvania, where mail-in ballots postmarked by election day that arrive after election day can now be counted, because the Supreme Court was deadlocked 4-4 and so the lower court ruling stands. Amy Coney Barrett can decide to cast a tiebreaker about voting in Pennsylvania, after a quick, emergency rehearing of the argument to give legal cover for her knowing, informed and impartial vote on the merits. Say it with me, kids “USA! USA!!!”

You may have a Trump mega-donor appointed Postmaster General who then not only quickly removes high speed mail sorting machines in heavily Democratic voting districts but orders those complicated machines taken apart and stripped for parts so they cannot be reinstalled in time to effect the voting — and issue warnings that mail will be slow to be delivered, while at the same time promising improved service — and… hah, nothing you can do about it, without the votes to impeach the man– absent enough evidence to indict him for any of the actual crimes he appears to have committed.

So if you sabotage mail-in voting during election, limit drop boxes, and have your party put out fake ones in California, and millions of your enemies stand on line for hours to vote in person during a pandemic (one assumes these are the majority of the record 64,000,000+ early ballots already cast) … uh…

… you need either masses of armed supporters intimidating voters in Democratic leaning areas (which new Justice Amy Coney Barrett was unable to say is illegal), loyal state legislatures ready to pretend voter fraud is widespread and overrule the will of the voters in their states, an infallible partisan super-majority on the Supreme Court, or all of the above. Although corporatist John Roberts is usually hostile to voting rights, (he was one of the judicial surgeons who vivisected the Voting Rights Act which was designed to prevent electoral hanky-panky, particularly the kind practiced by powerful racists) he is unreliable. The far right cannot always count on the loyalty of Roberts, as we saw in the 4-4 tie on Pennsylvania trying to count all its mail-in ballots during a historic and deadly pandemic.

The rule of law, administered by judges of good character, who take their oaths seriously, are bound by ethics rules, offers some protection against some government treachery– though clearly it doesn’t apply in a carefully vetted ideologically right-wing 6-3 Supreme Court — when it comes to things like ensuring voting during a pandemic.

For the rule of law — today’s example, Bagpiper Bill Barr’s crass politically motivated attempt to get the defamation case against alleged rapist Donald Trump dismissed — on the grounds that Trump publicly calling his accuser a liar was part of his official duty as president and therefore covered by the Federal Torts Act, was slapped down by a federal judge.

The New York Times reported this today, in a piece entitled Justice Dept. Blocked in Bid to Shield Trump From Rape Defamation Suit 

They quoted Bagpiper, when DOJ made its absurd and unorthodox move (though it was effective in shielding Trump from an upcoming DNA test), speaking with his well-known candor and dismissive confidence:

“The law is clear,” Mr. Barr said. “It is done frequently. And the little tempest that’s going on is largely because of the bizarre political environment in which we live

but today:

The judge, Lewis A. Kaplan of Federal District Court in Manhattan, rejected the Justice Department’s attempt to step into the case and defend the president. His ruling means that, for the moment, a lawsuit by the writer E. Jean Carroll can move forward against Mr. Trump, in his capacity as a private citizen.

“His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States,” the judge wrote.

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Judge stating the obvious, yo.

Get out there and vote, friends. We need an irrefutable popular vote victory, in addition to a clear Electoral College margin, to end this interminable national nightmare.

Trump’s lawyers themselves will lawyer up and try to get a case into the Supreme Court, convince the judges they appointed to rule in their favor — one more quid pro quo. It should be noted that even scumbag judges need something to work with when making a ruling. Trump and Barr have not given them much to work with, outside of attitude and a bad smell.

Echoes of Disturbing Issues from Childhood

My father, pursued to his deathbed by what he referred to as his demons, suffered unimaginable abuse as an infant that he was never able to heal from. He told me as much as he was dying. “My life was pretty much over by the time I was two,” he said, by way of opening our last conversation, on the last night of his life.

At that point I knew exactly what the man whose fluids were draining into a bag on the side of his hospital bed was talking about, but only because I’d spent literally decades puzzling out the painful secret he guarded to his death. His mother had been a violent, enraged, religious fanatic who literally whipped him in the face from the time he could stand. A light suddenly went on in a dark room when I learned this.

I can hear his voice now, saying what he couldn’t when he was alive and frantic to stay just ahead of the demons that drove him to act in ways he’d regret while dying. “You don’t recover from that kind of betrayal, Elie. How do you come back from a mother who treats you as a despicable enemy from your earliest memory, from before you could even talk to her?” I’m not sure I know the answer to that question, though it is worth pondering.

Whenever I raise my voice to Sekhnet, or otherwise show frustration (something I am sadly prone to), she immediately reacts with pain. She feels unfairly under attack like she did as a girl, and I understand this.

My nastiness immediately triggers painful childhood feelings from a childhood that was harsh in certain ways. All I can do is try to always be aware of this trigger and not react in a way that hits it, a great challenge in a matter of reflex. Making matters harder, my facial expression alone will pull the trigger, even if I manage to keep my mouth mostly shut. I can only apologize when I provoke this pain in her and try better to not do it the next time. My apologies, no matter how instant or sincere, only offer so much consolation, I have learned.

I don’t mean to sound like a sniveler, but disturbing issues from childhood remain for many of us, most of us, I suspect, to the end of our lives. We do our best to be aware of and overcome them for the sake of those we love, it’s the best we can do.

The subject of childhood pain is either tedious or fascinating, to be avoided or delved into, depending on your tolerance for a certain kind of discomfort and your need for a certain kind of clarity. It is tricky, emotionally fraught terrain dotted with patches of quicksand.

There is a term for constant self-punishing brooding on painful feelings from the past, rumination. There is even a psychological disorder for those addicted to this form of self-flagellation, Obsessive Rumination Disorder:

Rumination is focused on past events. It is a preoccupation with perceived mistakes, losses, slights, actions taken or not taken, opportunities forever lost. The feelings associated with obsessive rumination are guilt, regret, anger and envy.

(two second google search: what is obsessive rumination disorder?)

Here’s a short piece on the dangers of rumination and tips on how to overcome the worst of it, and lift ourselves out of it, by a guy with the incomparable name of Guy Winch.

The harm of repeatedly chewing over and reliving past hurt, churning pain you can do nothing about, is not hard to see. The difference between torturing oneself with guilt, regret, anger and envy and thinking about and learning from past pain, moving toward healthier reactions, not remaining stuck in negative cycles for reasons you can’t see or grasp, becoming a more self-aware and kind person, is not as easy to see sometimes.

Our past experience, of course, is the lens through which we view everything. More crucially, it is the filter through which we feel everything. I see this paragraph from today’s news and am struck (by the part I’ve put in bold) by an immediate painful feeling straight out of my own childhood, beyond my adult horror at the larger meaning of this news item:

Judge Amy Coney Barrett would be Trump’s third appointee to the Supreme Court and the sixth conservative justice on the bench. During her Senate hearing, she refused to state her position on abortion rights, gay marriage, the Affordable Care Act, voting rights, climate change, family separation at the U.S.-Mexico border and presidential powers in relation to the elections.

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Not answering specific, troubling questions by authoritatively turning the conversation away from reasonable, concerns, was a specific technique my adversarial father deployed frequently. I found myself on the short end of this technique over and over during my childhood and well into my adult life.

This move is the complete negation of the rights of the other, a calm, unappealable pronouncement that the thing you are so concerned about is of no legitimate concern whatsoever. It dismisses your concern as the unreasonable product of your own shortcomings.

It seems clear that a Supreme Court nominee should be able to state, without hesitation, that armed people at the polls intimidating voters is against the law, is, in fact, a felony in many, if not most, states. There is no political point of view expressed in stating the black letter law in answer to a direct legal question — this behavior, though endorsed by the incumbent president, violates rights guaranteed by the Constitution, as well as federal statute. It is a crime to interfere with a fellow citizen’s right to vote, by intimidating them or in any other way (not authorized by a superseding state law.)

This carefully vetted zealot nominee, about to become a sixth unappealable vote in the 6-3 majority to suppress anti-Trump votes (with or without legal justification [1]), refused to state her position even on this simple, important matter of voter intimidation on behalf of a president who exhorts violent resistance to “Democrat tyrrany” and vows to protect his followers from legal consequences. Instead of a straightforward answer to an uncomplicated legal question, Coney Barrett reserves all judicial options by standing on the absurd claim that she’d need, in a fact-specific situation, to consult with her interns and fellow legal scholars before deciding how to answer. She adds, in the politest possible tone, that the people asking such questions are simply partisans intent on “borking” her perfectly legal and proper nomination.

There are many reasons to be disturbed by the powerlessness many of us, a large majority of Americans, feel at the brazen and unstoppable bit of cynicism of appointing another extremist justice to cement a 6-3 right wing majority just days before an election she’ll have a vote on deciding, on behalf of democracy-averse corporations and reactionary billionaires. Add to this disturbance, in my case, a painful personal reminder of an ongoing childhood torment.

Here is the important distinction between what I always try to do and being stuck in the self-harming cycle of reliving pain from the past that psychologists call rumination. I recognize that there is a painful, personal echo in this news item for me. I can put my finger on it. I understand its harmfulness precisely. It does not send me into a spiral of negative thoughts from the past.

There is plenty negative and abusive about McConnell and company’s ugly, unprincipled move (several prominent votes in the 51-49 majority to rush Coney Barrett on to the bench took a “principled” stand, in 2016, against the very thing they are rushing to do now), days before a highly contested election, without this particular feature that strikes me so hard.

This refusal to address important concerns is one particularly personal component of this outrage for me, one I feel in my body and I understand why it strikes me that way. It’s as they say: the personal is political. It reminds me again how crucial it is for me not to do this hateful thing to people I care about.

It’s all we have when the going gets tough — the understanding of what hurts us the most, the desire not to inflict it on others and the knowledge that our concerns will not be brushed aside by the people closest to us.

We are living through historically tough times now, with the active message delivered over and over by our own government that hundreds of thousands of unnecessary American deaths, and untold deprivation, fear, hunger and other suffering, is the appropriate price of liberty, for certain powerful, unaccountable forces in our nation.

You can only look at the calculated ugliness of this and countless related daily outrages for so long, before you begin to lose hope, feeling, desire to even fight it. That is part of the deliberate design of overwhelming government-sponsored brutality like this– to emotionally dominate its victims beyond their power to resist. Resist we must, of course.

It is understandable that few, if any of us, are at our best in this disorienting moment of multi-faced crisis. It is plain that there are different styles of coping with the present horrors as they continue to unfold with such mind-numbing monotony. We all find our own ways to remain sane and hopeful, to balance the need for information and the need for relief from the assault of deliberate misinformation.

Tolerance for our differences is more important than ever. Only by hearing and understanding each other’s concerns is there any chance of emerging from this awful moment with our full humanity intact. Patience for the foibles of others is much harder under these worst of circumstances, when we are on each others’ nerves, locked up in small, isolated groups during these fearful days, granted. For that reason patience is even more needed. The reward for patience and fortitude is proportionately greater in scary, disorienting times like these.

[1]

The emergency ruling Kavanaugh authored in April, overturning two lower courts to prevent the expansion of voting in Wisconsin during the pandemic (with Ruth Bader Ginsburg’s short, sparkling, crystal clear dissent), was one of many recent un-argued eleventh emergency rulings by the Supreme Court. Unsurprisingly:

The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.

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A Note from 1968

In 1968, while the “bully Barrs,” teenaged William Barr, his older brother and his two younger brothers, were pugnacious young conservatives in liberal New York City, sneering at and tangling with anti-war protesters (while, of course, not themselves serving in the war they supported [1]), a landmark government study of systemic American racism came out. This is from a recent op-ed in the New York Times entitled What the Tumultuous Year 1968 Can Teach Us About Today:

In late February 1968, the REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS indicted structural racism as the underlying cause of the terrible riots that had stretched from Watts in 1965 to Newark in 1967. “What white Americans have never fully understood — but what the Negro can never forget — is that white society is deeply implicated in the ghetto,” the commission, led by the Illinois governor Otto Kerner and the New York City mayor John V. Lindsay, said. “White institutions created it, white institutions maintain it and white society condones it.”

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“What white Americans have never fully understood — but what the Negro can never forget — is that white society is deeply implicated in the ghetto.”

This 1968 conclusion seems pretty self-evident, still sickeningly true more than fifty years later, in spite of the relentless “culture war” being fought by reactionaries who insist history is not what it may appear to be, that America’s real problem is irrationally angry protesters who need to be controlled by a strong police anti-riot response.

This society, like others around the world, was at a turning point in 1968. Several strategic assassinations did their part to silence powerful voices and hobble the movement for needed social change. Power yields nothing without a struggle, as Frederick Douglass observed during the fight to abolish slavery here. Martin Luther King, Jr. put forth the argument (fatal for him) that racism, poverty and militarism are inextricably intertwined, three faces of the same monster.

As the Barrs were confronting and menacing hippie-types, the Kerner Commission found basically the same institutional forces that King had described. The far-right push against integration and full rights of citizenship for every American was already well underway by 1968, and the forces that would become more and more dominant over the years of Reagan, Clinton, Bush, etc.– and have become ascendant in the Republican party of today — was a tireless multigenerational push. Barr among the determined underdogs pushing hard for his point of view, from his earliest years, apparently.

Donald Trump is a racist and he doesn’t care to hide it, even as he brags (in the manner of the best racists everywhere) that he’s the “least racist person” anybody’s ever met. I don’t know if William Pelham Barr is a racist. It doesn’t really matter. Barr insists there’s no institutional racism in the United States, that very few unarmed blacks are killed by police, that blacks should show respect for the police if they expect protection, that militant anti-fascists are the real threat in America, not the armed gangs of white supremacists the FBI confirms have killed numerous Americans, as well as plotting organized terroristic violence against elected officials.

For a quick peek at Barr’s continual role in the “Culture War”, here’s a snapshot of Barr at work, from 1992. During his first stint as Attorney General he authored a widely criticized report called:

The Case for More Incarceration

In 1992, Barr authored a report, The Case for More Incarceration,[42] which argued for an increase in the United States incarceration rate, the creation of a national program to construct more prisons, and the abolition of parole release.[4] Barr argued that incarceration reduced crime, pointing to crime and incarceration rates in 1960, 1970, 1980 and 1990.

A 1999 criminology study criticized Barr’s analysis, saying “so complex an issue as the relationship between crime and punishment cannot be addressed through so simplistic an analysis as a negative correlation between the two very aggregated time series of crime rates and incarceration rates.”[43] 

University of Minnesota criminologist Michael Tonry said the data in Barr’s report was deceptively presented; if Barr had chosen five-year intervals, then the data would not have supported Barr’s argument, and if Barr had chosen to look at violent crime specifically (as opposed to all crimes as a category), then the data would not have supported his argument.[44]

Barr said in the report, “The benefits of increased incarceration would be enjoyed disproportionately by black Americans”.[44] In the report, Barr approvingly quoted New Mexico Attorney General Hal Stratton, “I don’t know anyone [who] goes to prison on their first crime. By the time you go to prison, you are a pretty bad guy.”[45] Barr’s report influenced the Violent Crime Control and Law Enforcement Act of 1994, which aimed to increase the incarceration rate.[4]

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I can picture the smug satisfaction on his big, provocative, culture warrior face as he typed “the benefits of increased incarceration would be enjoyed disproportionately by black Americans.” Enjoyed, you understand, in the always fresh sense of extreme right-wing humor, illustrated by the Arbeit Macht Frei (“Work Liberates”) sign over the gates of a death camp where slave laborers were worked to death by corporations who signed on for the great labor deal.

Here is a brief summary of some of Barr’s early work for Mr. Trump (from October 2019). It includes Barr’s official attempt to squash the “urgent and credible” whistleblower complaint that would eventually lead to his client’s impeachment.

Barr essentially dismissed the findings of the two-year-long Mueller investigation. Barr has supported measures that could lead to the indefinite detention of asylum seekers. He has apparently approved administration officials’ refusal to comply with congressional subpoenas. And lately, according to the Washington Post, Barr has been meeting with espionage officials from foreign governments, “seeking their help in a Justice Department inquiry that President Trump hopes will discredit U.S. intelligence agencies’ examination” of Russian interference in the 2016 presidential contest—a sign that Trump and Barr may be using “executive branch powers to augment investigations aimed primarily at the president’s adversaries.”

Amid this convulsion, Barr made headlines in September when it turned out that his Justice Department had downgraded a whistle-blower’s report, initially keeping it out of the loop that would have allowed Congress to review it. The complaint accused the president of potentially impeachable offenses, including a possible threat to withhold military aid to Ukraine unless the country’s leader began an investigation that might dig up dirt on Trump’s political opponent, Joe Biden. The whistle-blower’s account, which was deemed “urgent” and “credible” by the intelligence community’s Trump-appointed inspector general, alleged that the president had urged his Ukrainian counterpart to coordinate an internal Biden probe with Trump’s personal attorney, Rudy Giuliani, and Attorney General William Barr.

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The lines in New York City for early voting are hours long. Sekhnet got to her polling place almost two hours before the polls opened today, and waited twenty minutes to get in. The line was many blocks longer when she left the polling place the wait hours longer. Bring a book, some things to listen to, a folding chair, water. Waiting to vote is a one time inconvenience.

These motherfuckers have to go. It is long past time.

[1]

I don’t know for certain that no other bully Barr served in Vietnam, though I highly doubt any did. For his part, William Pelham Barr told senators, during his confirmation hearing to become Trump’s replacement Attorney General, that he hadn’t registered for the draft in 1968, the year he turned 18. He later wrote to the ranking members of the committee, to correct the record, explaining, with his trademark candor and reasonableness, that he “initially told lawmakers he had not registered because he is now too old for compulsory military service.” You know, and also, there hasn’t been a draft, or compulsory military service here in the USA, in many years.

source

A little history for young people, and a bit of consolation in a worst case scenario (attempt to outright steal the election)

To anyone who came of political age during the last four years, kids in High School, young adults — it was not always like this in our country. There were once two political parties, flawed and unresponsive to the needs of millions of citizens, that were forced to work together and compromise to solve major problems. Today there is only sickening partisan warfare between the parties. This ugly situation has a long and winding history, it is not of Mr. Trump’s making, though he exploits it every day and is the present provocative face of it.

In a post-Trump America, there will be a lot of work to be done, and millions of us will have to be willing to do it, but the division in our nation was not this grim or menacing (not since the eve of the Civil War) and it will be better going forward. It has to. The pendulum of history swings, with agonizing slowness sometimes, but it does swing, based on what millions organize to no longer tolerate.

At the risk of sounding like the didactic old bastard I am, a few examples, a little perspective for those too young to remember anything other than what you see on your phone every day.

Then at least one concrete reason to be optimistic, even in a worst case scenario (for concerned citizens of all ages).

A little history:

In the past there would be no controversy, spread by the president himself, and amplified by loyal spokespeople, about proven safety precautions during a deadly pandemic or the need to marshal the federal government to provide guidance and protective equipment.

Only a party that had shut down the government three times in less than four years would refuse to pass a law to help millions of citizens from falling into poverty after jobs disappear, to prevent an epidemic of homelessness during a raging pandemic that has already killed almost a quarter of a million Americans. At one time a government shutdown was only employed by reckless political bomb-throwers. Now it is a regular annual tactic of the ruling minority-supported party, used to twist arms during budget talks by making the populace suffer.

In a more reasonable age there would be no controversy about the driving force behind the sharp annual increase in killer storms, the looming (and visible) climate catastrophe that only fanatics and fools can ignore. The president and his administration would not normally withdraw from a worldwide agreement to slow the warming of the earth while it denounced the other leaders and the world’s top climate scientists as bunch of job-killing, freedom-hating liberal stooges (and worse). No previous president would mock young climate activists as “terrorists” and crybabies.

Americans never woke up every day to see the headline “the president attacked (insert name here).” American presidents, even the most divisive ones, rarely attacked anyone. No American president would ever call the government infectious disease specialist who’d been heading his pandemic task force “a disaster” for not backing him in his absurd claims that nobody could have done a better job controlling the outbreak than the leader of the nation with the worst infection and death numbers in the world.

Few elected officials would fail to condemn racism or remain coy about an influential “theory” that holds that Democrats and Hollywood elites are satanist, child-raping, blood-drinking cannibals. “I know they feel very strongly against pedophilia,” is something no past president would ever have said by way of his complete response to a question about an insane and widespread conspiracy theory.

You would not see a case in the Supreme Court to abolish a health insurance program that protects tens of millions of Americans from death due to inability to pay for medical care, particularly not during a pandemic. A program the right continually tried to repeal (and missed by one Senate vote when John McCain gave the president a famous thumbs down) since it became law almost a decade ago. The president is currently in court trying to end his predecessor’s government supervised insurance expansion program that he and his party have no plan to replace. During a deadly pandemic. They simply, and sincerely, don’t give a rat’s ass about average Americans dying.

A Supreme Court nominee, being rushed through on a 51-49 party-line vote, literally the week before the election, would not refuse to answer a simple question of law like “is voter intimidation illegal?” She would not gracefully but forcefully demur on the question of whether she’d recuse herself from deciding a 2020 presidential election case, based on an outright hoax (massive voter fraud). The appearance of impropriety — the standard for recusal– is certainly strong, as she’d be a likely vote to in favor of the demagogue who is rushing through her confirmation so she can rule on that exact question and keep him in office, (regardless of the will of the electorate).

None of this shit is normal, boys and girls, though it is the NEW NORMAL, for the moment. Part of how we got here is that an extremely wealthy minority, employing some brilliant and unprincipled operatives, organized, and funded with a shit ton of money, a vast network of often secret influence machines, to achieve policy goals the majority of Americans oppose. The extreme right has fought a highly successful fight against what they see as Majoritarian Tyranny in which government itself is the enemy. Bill Moyers interviews investigative journalist Anne Nelson who lays a good deal of this operation out in discussing her book Shadow Network [1].

Here is a great discussion on the far right’s long, winning battle for control of the federal judiciary and the Supreme Court. Here’s a bit of the background about how ideologically committed Supreme Court nominees have learned to refuse to commit to any judicial, legal or philosophical position whatsoever.

You may have heard of a federal judge named Robert Bork, a haughtily opinionated, very conservative man, nominated by Ronald Reagan, who got “borked” and was not confirmed for a lifetime seat on the Supreme Court. “Borking” is making a potential lifetime appointee to the unappealable Supreme Court unequivocably answer specific questions about his or her judicial record and political philosophy. After hearing those answers from a contentious nominee (think of Antonin Scalia, but openly ill-tempered and without the wit or personality of the original “Originalist”), most Democrats and six Republicans voted against his confirmation. The rejection of Bork, his “borking”, was bipartisan. Reagan’s next nominee, a much less objectionable candidate named Anthony Kennedy, was confirmed unanimously. Those plain facts were not allowed to stand in the way of the handy radical right-wing foundational grievance myth that Bork was unfairly “borked” by Democratic partisans who viciously challenged him left and right.

Here’s a snapshot of our nation today in two titles from the Op Ed section.

Here are three winning “Democratic” ideas (I can’t read David Brooks, so I picked just three obvious ones).

In democracy, every eligible voter must be allowed to vote. The candidate who gets more votes wins.

The federal government must protect all citizens in case of disaster.

When there is demonstrated foreign interference in an American election, electoral vulnerabilities must be quickly and aggressively fixed.

In democracy, rule by the People, the will of the citizens is expressed by voting for representatives who act on our behalf. An open debate on policy ideas followed by widespread voting are hallmarks of a healthy democracy. Democrats support this idea, the president’s party rejects it, sponsoring laws that make voting more difficult in every state they control, bringing court cases to restrict voting in “swing states” they do not outright control, challenging every rule that allows freer access to voting. The conservative Supreme Court, 5-4, recently cut the heart out of the Voting Rights Act– and most Red states immediately enacted legislation to make it harder for certain classes of citizens to vote.

The federal government represents all of the people of the nation, it goes without saying. The federal government is the guarantor of all of the rights of citizenship enumerated in the Constitution. When a natural disaster strikes, the federal government moves in quickly to help. It does not dispense aid according to which party the majority of an area voted for. It doesn’t force zero-sum competition between the states for urgently needed supplies. It doesn’t punish jurisdictions run by one party or the other. It doesn’t have an idiot spokesman, like the manifestly unqualified Jared Kushner, nonsensically piping up that the federal stockpiles of supplies needed to halt the spread of a pandemic are “ours” and not for the states.

One last big Democratic idea, then a word about Ayn Rand.

The Republican-led Senate Intelligence Committee released a five volume report that confirmed what Robert Mueller’s investigation, and a House investigation, found, and what every intelligence agency concluded — Russia sweepingly and systematically interfered in the 2016 election to get Donald Trump elected.

Idea: pass legislation and implement policies to prevent a repeat in 2020. Biden missed a great opportunity at the last debate to mention that Mitch McConnell has blocked even debate on all such measures. McConnell did this as nonchalantly as he vowed to work with Trump’s defense team during the impeachment, to allow neither a witness nor evidence to be presented at the “trial”.

From McConnell’s power-first point of view, why should he? Russia interfered to help his candidate, his party. He’s got a 51-49 majority, why would he do anything to interfere with what promises to be much more sophisticated Russian interference on behalf of his president’s reelection? That would just be stupid.

Ayn Rand was a politically radical novelist, an emigre from the Soviet Union. Her novels were written in service to her feverishly anti-Communist worldview. The individual, she believed, was far more important than any notion of the collective — and the protagonists of her massive novels were living examples (so to speak) of this essential concept. Socialism, she preached in her passionate, metaphorical works of fiction, was the enemy of personal greatness. She fled from a totalitarian state, so her point of view is understandable. But not as a coherent political philosophy.

In the real world Ayn Rand’s “philosophy” is Social Darwinism, the perverse notion that it is the absolute natural right of someone with the might to take from the weak whatever they want. Reading Ayn Rand’s gigantic books qualified former Republican House leader Paul Ryan as a Republican intellectual. Her novels were treated by the right as expressions of inviolable universal truth, in the same way religious people venerate their holy books. Put into practice, you get a very ugly society where the weak can go fuck off and die.

A reason for hope, in one of the worst case scenarios for a contested election:

Even if Trump loses the election by a wide margin, and manages to get his many legal challenges, based on widespread election fraud he cannot prove (since evidence of such fraud has never been produced) up to the Supreme Court, and the 6-3 ruling ties up the Electoral College vote and throws the matter into the House of Representatives to decide on a one vote per state basis (a scenario he brought up the other day) — check this out.

Trump correctly stated that, under the current composition of the majority Democratic House of Representative, rendered one vote per state (as the twelfth amendment of the Constitution requires for resolving unresolved presidential elections) Republicans have a 26- 22 majority and so he’d still be president. Robert Reich points out in a neat little video that the House that would vote on this issue would not be the current House but the one in session after the 2020 election. Members of the new Congress would be sworn in on January 3, 2021 and would vote to decide the presidential election on January 6.

There was a big Democratic swing in 2018 when that party recaptured the House and that was before Mr. Trump’s botched pandemic response and an erratic campaign that will not win him many undecided voters. His attempt to stay in power after he loses the popular vote, and ties up the Electoral College with a 6-3 Supreme Court decision, with a favorable narrow House majority will hinge on Alaska and Montana (one representative, one vote each) remaining in his column, along with currently tied Pennsylvania (no vote) and virtually tied Florida (where three Republicans are retiring), and Michigan (Republican by one seat). If those states change column, majority rule in the USA will live to fight another day.

And fight we must, boys and girls.

[1] from the intro to the Moyers podcast:

What is the shadow network behind the nomination of Judge Amy Coney Barrett to the Supreme Court? Who selected and groomed her for this moment? Who’s financing the campaign to get her confirmed? Who’s counting on her to side with President Trump if he’s losing the election and wants the Supreme Court to declare him the winner? For the answers, Bill Moyers talks to journalist and investigator Anne Nelson about her book: SHADOW NETWORK: MEDIA, MONEY, AND THE SECRET HUB OF THE RADICAL RIGHT.

Moyers