Seven Score And Nineteen Years Ago

Abe Lincoln delivered the greatest political speech ever - except possibly for most of his other speeches.

The guy could speechify.

We could prob'ly do with a few more like The Gettysburg Address, since way too many people are expecting (ie: fearing) another American civil war, and the same number seem to be eagerly anticipating (ie: fomenting) it, convinced it's just something we need to do once in a while to give ourselves a good "cleansing" - or whatever fuckin' rationalization they've cooked up today.

Enter the brewing power struggle between Article 1 and Article 3.

Shit just gets weirder.

Senior Democratic lawmakers demand answers on alleged Supreme Court leak

Whitehouse and Johnson warn chief justice that if he won’t investigate, Congress will.

Two senior Democrats in Congress are demanding that Chief Justice John Roberts detail what, if anything, the Supreme Court has done to respond to recent allegations of a leak of the outcome of a major case the high court considered several years ago.

Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) are also interested in examining claims about a concerted effort by religious conservatives to woo the justices through meals and social engagements. They wrote to Roberts on Sunday, making clear that if the court won’t investigate the alleged ethical breaches, lawmakers are likely to launch their own probe.

The pair of lawmakers also criticized the high court’s response to a letter they sent Roberts in September, seeking information about the court’s reaction to reports in POLITICO and Rolling Stone about a years long campaign to encourage favorable decisions from the justices by bolstering their religiosity.

A Supreme Court ethics attorney replied on Roberts’ behalf earlier this month, recounting some of the court’s policies and practices in the area, but offering no specifics about the lobbying drive.

“A response pointing out the existence of rules is not responsive to questions about whether those rules were broken,” Whitehouse and Johnson wrote in their new letter Sunday, which was obtained exclusively by POLITICO. “It seems that the underlying issue is the absence of a formal facility for complaint or investigation into possible ethics or reporting violations. …. If the Court, as your letter suggests, is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum.”

A Supreme Court spokesperson did not immediately respond to a message Sunday evening seeking comment on the letter.

The lawmakers said their latest missive to Roberts was triggered in part by a report Saturday in the New York Times about a former anti-abortion activist’s claim that he got advance word about the outcome in 2014 of a case of acute interest to social conservatives. The case, Burwell v. Hobby Lobby, led to a ruling written by Justice Samuel Alito that religious owners of closely held businesses did not have to comply with all of the Affordable Care Act’s requirements for contraception coverage.

Rev. Rob Schenck, a former evangelical minister who has since switched denominations, said he was alerted to the outcome of the case and Alito’s authorship of the opinion several weeks before the opinion was released by the court. Schenck said his information came from a dinner a wealthy couple had with Alito and his wife, Martha-Ann Alito, at the Alitos’ Virginia home after making significant donations to the Supreme Court Historical Society.

Alito adamantly denied that he or his wife were responsible for any leak. One member of the couple who dined with the Alitos that night, Gayle Wright, has also denied she conveyed the outcome of the case to Schenck. Her husband, Ohio real estate developer Don Wright, died in 2020.

POLITICO investigated the alleged leak for several months and was unable to locate anyone claiming direct knowledge of a premature disclosure of the outcome of the Hobby Lobby case from Justice Alito or his wife. However, there is circumstantial evidence that Schenck had, or believed he had, advance word about the outcome of the case and who was writing it.

Schenck wrote to Roberts in July, conveying word of the alleged leak eight years ago. He said the court might wish to evaluate that episode as it considers how to deal with the far more publicized disclosure in May by POLITICO of a draft Alito opinion overturning Roe v. Wade.

The court has not commented on Schenck’s letter or whether any investigation was conducted into the 2014 leak, but the new letter from Whitehouse and Johnson asks Roberts to explain whether the court has “reevaluated any of its practices, procedures, or rules related to judicial ethics, or the justices’ receipt and reporting of gifts and travel” as a result of the recent news reports and Schenck’s letter.

Whitehouse and Johnson also expressed concern that some donors to the Supreme Court Historical Society, a nonprofit educational organization with close ties to the court, have tried to use the society’s events to cozy up to the justices.

“Who is responsible for policing the relationship between the Supreme Court and the Supreme Court Historical Society to ensure that paid membership in the Society is not used as a means of gaining undue influence?” the lawmakers asked.

A society official did not immediately respond to a request for comment Sunday evening.

Whitehouse, a strident critic of what he contends is politicization of the Supreme Court, is positioned to pursue those concerns in his capacity as chair of the Senate Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights

Johnson heads up a similar subcommittee on the House side, but his ability to probe the matters may soon be limited with Republicans set to take over control of House committees in January due to the outcome of the midterm elections earlier this month.

The Lines Become Clearer

We're in a fight that is determining whether we continue degrading the republic - while pretending it's still a democracy - and slide full-bore into The Daddy State, or figure out a way to reclaim our little experiment in self-government, and get back to an effort at making some nominal progress towards that more perfect union thing we love to talk about while almost totally (and maybe intentionally) misunderstanding.

JD Mortenson, Law Prof, Univ of Mich, in The Atlantic:

Is the president a king? The question may sound absurd, but you’d be surprised: A great many lawyers, politicians, judges, and policy experts think the U.S. Constitution builds from exactly that starting point. Their argument relies on the first sentence of Article II, which gives the president “the executive power.” That phrase, they claim, was originally understood as a generic reference to monarchical authority. This means, they say, that the American president must have been given all the prerogatives of a British king, except where the Constitution specifies otherwise. The foreign-relations scholar Philip Trimble states their conclusion plainly: “Unless the [Article II] Vesting Clause is meaningless, it incorporates the unallocated parts of Royal Prerogative.”
That last bit - about how the Vesting Clause includes Royal Prerogative - is nine kinds of fucked up, and it's the big tell when it comes to figuring out what the Radical Right is up to.

What it says:
The executive Power shall be vested in a President of the United States of America.

What it means to normal humans (what we were all taught in Junior High School Civics class):

The Legislative Branch (the Article 1 guys; the 1st-among-equals guys) will deliberate about how the country should operate; they'll make laws; and they'll hire a guy to run it for them - an executive guy - a guy who'll hire other guys to make sure the will of the people (as represented in Congress) is being faithfully and fairly applied to the daily goings-on in the United States Of America. And even though POTUS can veto a law, Congress can override that veto if they're working together, and that means the president and congress have to work together too -if they wanna get anything done.

That is the conservative take on things. ie: Checks and Balances - trying to make sure not too much government power is in too few hands, and fostering a workable relationship pointed at keeping everybody accountable.

What it means to the Radical Right: (what they've been pimping at us for 40+ years)

Our guy got "elected", and he can do whatever he thinks is OK and if you want something different - well fuck you, we won, get over it.

That's an extraordinarily liberal interpretation of "Executive Power".

- more from Professor Mortenson's piece -

After years of research into an enormous array of colonial, revolutionary, and founding-era sources, I’m here to tell you that—as a historical matter—this president-as-king claim is utterly and totally wrong. I’ve reviewed more than a thousand publications from the 17th and 18th centuries for each instance of the word root exec-, and have read most of those texts from cover to cover with the topic of presidential power squarely in mind. I’ve read every discussion of executive power and presidential authority that appears in the gigantic compilation of archival materials known as the Documentary History of the Ratification of the United States Constitution. And with the help of a team of research assistants, I’m most of the way through flyspecking the full records of the Continental Congress—including committee reports, floor debates, and delegate correspondence—with the same question in mind.

All this work has left me with both the confidence to share this conclusion and the sense of obligation to do so as bluntly as possible. It’s just not a close call: The historical record categorically refutes the idea that the American revolutionaries gave their new president an unspecified array of royal prerogatives. To the contrary, the presidency that leaps off the pages of the Founders’ debates, diaries, speeches, letters, poems, and essays was an instrument of the law of the land, subject to the law of the land, and both morally and legally obliged to obey the law of the land.

"...the presidency...an instrument of the law of the land, subject to the law of the land, and both morally and legally obliged to obey the law of the land."

- and -

...The constitutional text doesn’t actually authorize the president to do very much. It enumerates the veto, appointments, and pardon powers. It grants the president “the executive power” and the office of commander in chief. It authorizes the president to receive foreign ambassadors, demand reports from his subordinates, and deliver a State of the Union address. But aside from a few miscellaneous process authorities, that’s just about it.

- and -

“The executive power” granted at the American founding was conceptually, legally, and semantically incapable of conveying a reservoir of royal authority. The real meaning of executive power was something almost embarrassingly simple: the power to execute the law. Overwhelming evidence for this point pervades both the Founders’ debates and the legal and political theory on which their discussions drew.

SLAPP Happy

Sec'y Reich explains:

It should be pretty clear now why the Repubs are trying so hard to fill the Federal Bench with mouth-breathers who'll go along with whatever horse shit comes down from Corporate HQ.

It Only Works When You Work It

Quick reminder: Checks and Balances is a metaphor, not a mechanism.

AP News:

Republican Sen. Thom Tillis of North Carolina and Democratic Sen. Chris Coons of Delaware plan to introduce the legislation Thursday. The bill would allow any special counsel for the Department of Justice to challenge his or her removal in court, with a review by a three-judge panel within 14 days of the challenge.

The bill would be retroactive to May 17, 2017 — the day Mueller was appointed by Deputy Attorney General Rod Rosenstein to investigate Russian meddling in the 2016 election and possible ties to Donald Trump’s campaign.

“It is critical that special counsels have the independence and resources they need to lead investigations,” Tillis said in a statement. “A back-end judicial review process to prevent unmerited removals of special counsels not only helps to ensure their investigatory independence, but also reaffirms our nation’s system of check and balances.”
Legislators have been ceding power to the Executive for decades - this is one of a very few times Congress Critters have reared up and made a noise like they understand the idea of "First Among Equals".

Defend your institutions or lose them forever.

So way to go, guys. 

But seriously - it's about fuckin' time.

The GOP Steps Up?

Hard to imagine lately, but Repubs may be getting their chops back in shape, just in time to put 45* in the dumpster as another failed experiment of political evolution.

WaPo Editorial Board:

President Trump’s rise tests the American system because he was elected on the strength of radical protest against it — the claim that it’s all “rigged” — and because his party dominated Congress as well as the White House. The erratic disrupter-in-chief came to power with a political escort of enablers. And so any hope that checks and balances would work to constrain Mr. Trump’s worst impulses hinged, in part, on the willingness of Republicans in Congress to act in defense of values higher than short-term political advantage, or at least to interpret their short-term political interest as requiring them to counter Mr. Trump.

-and-

What GOP lawmakers’ first serious steps toward checking and balancing Mr. Trump showed this week, however, is that there is a middle ground, which members of his own party are no longer afraid to explore.

All together now - well it's about fuckin' time, you guys.

The Unraveling

Wanna know what's really weird?  In working so hard to consolidate power and to achieve that ever-elusive Unitary Executive, 45* is actually in the process of stripping The Executive Branch of all the power gains it's made in the last 35 years.

Politico:

A top Justice Department official under President George W. Bush, Jack Goldsmith, unleashed a 17-entry Tweetstorm arguing that Trump’s ongoing attacks on his own lawyers and his apparent effort to disclaim responsibility for reissuing his “watered down” order are further eroding judicial deference for the executive branch.

“Given POTUS’s instability, it is not just courts that have reason to relax the presumption of regularity for this Prez,” wrote Goldsmith, now a professor at Harvard Law School. “We all have reason to do so about everything the Executive branch does that touches, however lightly, the President....One thing DT behavior entails...is many losses in court and not just on the immigration EOs....Everything else Executive would normally win—reversing Clean Power Plan, terminating treaty, new regs, etc.—will be much, much harder.”

Leaves me to wonder - when the GOP begins the inevitable Trump Rehab Project (and you bloody well know they will), just how trippy-flippy will it get trying to rationalize giving Trump credit for "Rebalancing The System Of Checks And Balances In Order To Save The Republic"?

Yeah, well - ya heard it here first.

Charlie Gets There

Charlie Pierce, attempting to give a us a look at things to come. 

It is my considered opinion that, as far as the simple process of voting goes, the World's Last Great Democracy couldn't organize a two-car funeral if you spotted it the hearse. The primaries on Tuesday night were an endless carnival of blunders, cock-ups, and general mayhem. This is the first election cycle we've had since John Roberts declared the Day of Jubilee and gutted the Voting Rights Act. These two things are not coincidental. The good folks at the SEIU have done a great job aggregating the various atrocities.

For example, Native Americans, the last Americans to obtain the right to vote, face a staggering array of obstacles. In Alaska, for example, Native villages can be as much as 150 miles from a polling place, and that only by boat or airplane. There is no consistent national policy on whether or not tribal identification cards are recognized under the spate of new voter-ID laws that passed in the wake of the 2007 decision upholding an Indiana law and that became a flood after Roberts and the Court declared the Day of Jubilee seven years later. The isolation of many Native communities often prevents people who are trying to vote from receiving the legal advice they need to protect their right to the franchise. And that is only the most extreme example of the chicanery that is going on.

This election ought to be a landslide that rightfully sweeps away the GOP and shames them out of their stoopid reliance on an Authoritarian and Hypocritical Bait-n-Switch brand of politics. But instead, it promises to be another close one - another great example of the media-generated, ad-revenue-fueled myth of a closely divided nation, sponsored by smart corporate money that wants more tax dollars funneled into their coffers while making sure the Coin-Operated Politicians have the rubes pissed off at anybody but the Rent-Seeking Corporatists.

Here's how I think it's supposed to work. 

People are turning away from the GOP in droves, and probably, while a lot of them intend not to vote at all, a nice big bunch (who would usually vote for them) intend to vote against the Repubs like they did in '92.  If you can keep a significant percentage of them from voting at all, you'll probably still lose, but it'll look really close, and that's what matters now.

And even if you can't keep enough people away from the polls to make a big difference in National or State-Wide races, you can prevent the balance being tipped in the very important "small stuff" races like County Supervisor and DA and State Legislature etc. So if the GOP can keep a handle on that level, then they can go on pretending they have a case to make about "big, far-away government tellin' the little guys what to do yada yada yada".

Remember always that elections get decided by about a dozen votes per precinct. 

The key is maintaining balance between the 2 competing sides. If the Red Group has 49%, and the Blue Group has 49%, that means I can throw in my 2% to support whatever candidate promises me the biggest tax breaks or subsidies or military protection for my investment holdings in FuckedUp-istan, or whatever. This is the old game of Divide And Conquer, but with a heapin' helpin' of Henry Kravitz Corporate Raider thrown in. 

(And don't you dare start thinking we aren't being distracted while certain politicians are working hard to sell everything in this country to the highest bidder and take us back to the glory days of 1750, but that's a slightly different rant - closely related, but that comes after a few more rounds)

Voter Suppression is all about not allowing "the divide" to get so big that the 2% loses its oomph.

But also too, remember that the GOP is very much on the defensive:  

1) makes it all the more dangerous

2) they're just looking to survive to fight another day, and that means: 

3) the Dems have to dominate. They have to win big. And when was the last time they managed that one - and more to the point of my theme here, when was the last time they were allowed to do that?  Hillary seems to be the perfect fit for the occasion - ie: she'll win, but not by enough to upset that delicate and finely-crafted balance.  And that also is a slightly different rant.

And BTW - if you think it looks like a mini-series on network TV, you ain't wrong.  The game is totally reliant on distraction and misdirection, and we've been thoroughly conditioned to  get caught up in the gripping drama of real-life events as they unfold blah blah blah, so that we stay frozen in place, allowing "our betters" to make the important decisions for us while we pretend to be well-informed and involved.

One last wrinkle: those astoundingly shitty Anti-Civil-Rights laws passed recently in Georgia and North Carolina? That's this year's version of The Big Wedge designed to motivate the "Christian Values Voters".  The GOP will likely flack the fuck outa that one, screeching that the valiant "conservatives" are trying to protect Real America from The Homo, and if you don't go vote, then the police will have no choice but to break down your doors and force you to Gay Rape your house pets. You know the drill.

Up on your hind legs, kids. Stay together. Work together. Get shit done.

Dot, Meet Dot

Not to get too magical-mystical here, but when we're talking about the FISA Court and USA PATRIOT Act and the shenanigans at NSA and the FBI, etc - I think I have to go along with Mark Udall; mostly anyway - and Obama too btw.  There has to be a balance, which (imo) we've let get away from us in a pretty big way.

Balance is kinda the key to the whole self-governance thingie.  We have to continue to develop better ways to catch the bad guys after the fact - and better yet, prevent the bad guys from doin' the dirt in the first place - without making it more probable that some tin-plated martinet will abuse the power, and turn it to his own ends.  (Thank you, Capt Obvious)

Here's 5 minutes of Udall on NPR, talking about what he and Ron Wyden are proposing:



Almost at the very end, Udall makes a point that kinda blew up in my brain.  He said (paraphrasing), "...privacy is the ultimate form of freedom".

If I make a not-entirely-silly leap, I can say Privacy = Anonymity; and in a still not-so-silly way, Anonymity = Invisibility; and Invisibility is very much the be-all and end-all of the super powers.

On the one hand, if nobody can see you, then nobody can fuck with you.  This is mostly a very good thing for individuals.

But on the other hand, if you can't be seen, then you can't be held to account for anything you do.  This is always a very bad thing for societies.

So, balance.  Aye, there's the rub.

hat tip = Little Green Footballs

Sen Warren Of Massachusetts

Cain't hep muh-sef.  My mad crush on Elizabeth Warren continues apace.

By way of Charlie Pierce at Esquire:

"I have heard the argument that transparency would undermine the Trade Representative's policy to complete the trade agreement because public opposition would be significant," Warren explained. "In other words, if people knew what was going on, they would stop it. This argument is exactly backwards. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States."

advice and consent - a legal expression in the United States Constitution that allows the Senate to constrain the President's powers of appointment and treaty-making

My Kinda Justice

I think this may be what a real US Supreme Court oughta look like.

According to CNN, Supreme Court Justice Sonia Sotomayor and another Justice took the rather unusual step to speak out over racist remarks made by a federal prosecutor in a drug case. The case is Calhoun v. U.S. (12-6142).

--and--

While questioning an African-American defendant in a drug case, Ponder asked: “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you – a light bulb doesn’t go off in your head and say, this is a drug deal?”

The first Hispanic Supreme Court justice, Sotomayor wrote that the prosecutor had “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.”

The question was “pernicious in its attempt to substitute racial stereotype for evidence,” she added. Sotomayor also accused the Obama administration of playing down the issue.

I hope Sotomayor's pointed criticism is a sign that she'll continue to stand out simply because she understands that the court isn't supposed to be a political or ideological counterweight.  It's there to keep the other 2 branches from becoming too powerful - just as the other branches are there to provide balance against the courts.

(from Addicting Info)