So who will fill Merrick Garland's Supreme Court seat?

by Ken

There's a good chance, as we knew all through the 2016 presidential derby, that the Supreme Court we now think of as the "Roberts Court" is going to be transformed over the next few years into the "Trump Court."

For now, President Trump has one vacancy to fill, the one that remains because Republicans took one of their more outrageous dumps on the Constitution by refusing to consider former President Obama's nominee, Merrick Garland, to fill the seat vacated by the death of Justice Antonin Scalia. By now you'd figure that all the Republican senators who committed this consitutional outrage would be on Death Row pending appeals of their treason convictions.

And while no one hopes for even the most minimal level of competence or decency in the Trump pick for this seat, which we're told now will be announced February 2 ("We have outstanding candidates. We'll pick a truly great Supreme Court justice"), it changes the High Court only in the sense that it returns it to its status before Scalia's death, as a more or less reliable -- usually depending on the judicial vagaries of Justice "Slow Anthony" Kennedy -- right-wing death machine. Of course this represents a big change from the 4-4 deadlock that has existed on the shrunken court.

According to the sources consuilted by the Washington Post's Supreme Court reporter, Robert Barnes, the hot prospects on the administration's current short list of candidates are judges from four circuits of the federal Court of Appeals. Here are Barnes's backgrounders on the fearsome foursome:

WILLIAM PRYOR, 11th Circuit (Atlanta)

One candidate on the shortlist that probably would not meet [Senate Minority Leader Chuck] Schumer’s test ["It's hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support"] is the one Trump has specifically mentioned.

That is Pryor, 54, a protege of Trump’s choice for attorney general, Sen. Jeff Sessions. Pryor followed Sessions as Alabama’s attorney general and had a contentious Senate confirmation after President George W. Bush nominated him to the bench. Bush eventually made him a rare recess appointment in 2004, and he was finally confirmed by the Senate as part of a compromise deal.

Pryor thrilled supporters at his hearing by not backing away from a previous observation that the Roe v. Wade decision was a constitutional “abomination.” His past comments on gay rights and stalwart support of the death penalty have made him the nominee that liberal groups say they would most fiercely oppose.

He has long been considered the front-runner for the job but lately has drawn fire from some staunch conservatives. Several groups have objected to a decision he joined that upheld the right of a transgender woman to sue over being fired. The appeals court panel based its decision on Supreme Court precedent, but conservative groups said Pryor’s decision was unwarranted.

John G. Malcolm of the Heritage Foundation, one of the groups that supplied Trump with names of potential nominees, defended Pryor in the National Review. Criticism of the judge from the left was expected, Malcolm wrote, but the attack from the right “is a strange development.”

NEIL GORSUCH, 10th Circuit (Denver)

Gorsuch, 49, would not bring the outsider credentials represented by others on Trump’s list. His mother, Anne Gorsuch Burford, headed the Environmental Protection Agency under President Ronald Reagan, and he was raised in Washington. His résumé includes Columbia University, Oxford and Harvard Law.

He is seen as a reliable conservative, with a reputation for clear and lucid writing. His law clerks regularly move on to the Supreme Court — not just for conservative justices but also for liberals such as Sonia Sotomayor and Elena Kagan.

Gorsuch is an originalist, like Scalia, meaning he attempts to interpret the words of the Constitution as they were understood at the time they were written. He is protective of religious rights and found that they could be infringed by requirements of the Affordable Care Act requiring employers to provide contraceptive services.

THOMAS HARDIMAN, 3rd Circuit (Philadelphia)

Hardiman, 51, has more of the backstory Trump might find appealing. He was the first in his family to go to college, and for a time, he drove a taxi to finance his education at Notre Dame and Georgetown University Law Center. He is a lifelong Republican who married into a Pennsylvania family with prominent Democratic roots.

Hardiman serves on the 3rd Circuit with Trump’s sister Maryanne Trump Barry. Conservatives praise his record on gun rights — he dissented from a decision that upheld New Jersey’s restrictive law on who may receive a permit to carry a gun. The Supreme Court declined to review the decision.

But the justices on a 5-to-4 vote upheld one of his decisions that said jails were justified in strip searches for those being committed, no matter the seriousness of the charge.

RAYMOND KETHLEDGE, 6th Circuit (Cincinnati)

Kethledge, 50, is less well-known than the others but is said to have support among senators. He is a University of Michigan graduate who, like Gorsuch, clerked for Justice Anthony M. Kennedy. His nomination was opposed by Michigan’s Democratic senators, but he was confirmed in 2008 as a result of a compromise deal in the Senate.

A Wall Street Journal editorial bestowed “opinion of the year” on a 2014 ruling against the Equal Employment Opportunity Commission. The agency had brought an action against Kaplan Higher Education Corp. alleging discrimination, but Kethledge shot down the testimony of an expert the EEOC had relied upon.

He also ruled for a group called the NorCal Tea Party Patriots in a class-action case the group had filed against the Internal Revenue Service alleging that conservative groups had been targeted.

WATCH FOR A FAMILIAR COMEDY TO PLAY OUT
IN THE NOMINEEE'S CONFIRMATION HEARINGS

Is it really worth pondering which of these picks would be the "least worst"? Meanwhile, the Plum Line's Paul Waldman is looking ahead to the eventual nominee's confirmation hearings.

"By many accounts," Paul writes, "it was the prospect of a Democrat filling that seat that persuaded conservative evangelicals to support Donald Trump en masse, when they might have decided to stay home rather than back a philandering, amoral candidate whose efforts to pander to them were as transparently phony as a $3 bill." That support, Paul says, "according to exit polls," ran to 81 percent of white evangelicals who voted. And now, on this first Trump Supreme Court nomination, they have every reason to think they're going to get what they paid for with those votes.

"There are many issues to be concerned about when the Senate takes up this nomination," Paul writes,

but let’s be honest: We all know that most of the debate is going to be about abortion, specifically whether Roe v. Wade will be overturned. And I can tell you exactly what’s going to happen.

Okay, Paul, we'll bite. Tell us exactly what's going to happen.

Here’s how it will go: Despite the fact that the president has insisted that he will appoint a justice who will vote to overturn Roe, and despite the fact that every conservative interest group will insist that his choice must be a vote to overturn Roe, and despite the fact that it’s in the Republican Party platform to overturn Roe, and despite the fact that nearly every Republican politician wants to overturn Roe, and despite the fact that the nominee will have been chosen only because all those people feel sure he’ll be a vote to overturn Roe, the nominee will go before the Senate and the country and pretend that he has no opinion on whether Roe should be overturned. But he’ll hint that he might vote to uphold it, because it’s a precedent and he has deep respect for precedent, and he has an open mind, so who knows. This will be a lie, but it’s what he’ll say.

And how does Paul know? "Because it’s what Republican Supreme Court nominees always do in their confirmation hearings."

Its most extreme version was embodied by Clarence Thomas, who began with the maybe-I’ll-uphold-it claim. “I believe the Constitution protects the right to privacy,” he said. “And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.” But then he went even further, saying in response to a question that not only had he not made up his mind about Roe, but he had never in his life even had a conversation about the most controversial legal issue of our age: “Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.” There could not have been a single person in America, liberal or conservative, who thought Thomas wasn’t lying.

But it's unusual, Paul says, for a right-wing Supreme Court nominee to go this far.

In its slightly less laughable version, the denial is usually a combination of the following assertions: I don’t want to prejudge any case that might come before the court. Precedent is important. Nothing I said before now applies, because the role of a justice is so unique. My personal views, if I should happen to have any, which I probably don’t, would never enter into my rulings.

Not only Chief Justice "Smirkin' John" Roberts but even the late Justice Scalia shuffled through their versions of what Paul describes as "this absurd charade," which he notes predictably drives Democratic Senate questioners batty,

since everyone knows how full of it the nominee is. So the senators try to ask the question a dozen different ways to see if they can come up with a key that will unlock the truth, and they inevitably fail.

Which particular version of the denial charade can we look forward to? "As it happens," Paul writes, "among the finalists for Trump’s pick, there is one judge, William Pryor, who has an unusually clear record of statements on abortion in general and Roe in particular."

He has been such an outspoken critic of the decision, calling it the “worst abomination in the history of constitutional law,” that it would be almost impossible for him to claim that he might uphold it. Does that mean that he won’t be nominated? To know the answer to that question you’d have to get into Trump’s mind, and who knows what’s going on in there. What we do know is that whoever gets the nomination, he’ll be a vote to overturn Roe. No matter how much he tries to deny it.

#

Chuck Grassley's Obstructionist Role In Blocking President Obama's Judicial Nominee

Senatorial obstructionist clown show, Mitch and Chuck

If you've been following along with the news about President Obama replacing Supreme Court Justice Antonin Scalia, you no doubt noticed that the Republicans have dragged us to the brink of an unprecedented Constitutional crisis. As far as I can tell, this is the first time in the country’s history where a hyper-partisan gaggle of right-wing senators are blatantly and explicitly refusing to do the job the constitution assigns them of examining the president's judicial nominee.

Senate Majority Leader Mitch McConnell (R-KY) and Judiciary Committee Chair Chuck Grassley (R-IA), almost with minutes of Justice Scalia's death, said they would not consider anyone, no matter how qualified or how stellar, President Obama nominates. Now that is the kind of obstructionism that the American people are sick and tired of. McConnell and Grassley aren't being truthful when they claim that there have never been any election-year appointments to the Supreme Court.  In the past, six Supreme Court Justices have filled a vacancy during an election year, including Justice Anthony Kennedy, who was nominated by Reagan in November and confirmed by a Democratic-led Senate, 97-0, less than three months later (in February, 1988).

According to The Hill yesterday, some legal experts claim Senate Republicans are exceeding their constitutional powers by refusing to hold a hearing on President Obama's Supreme Court nominee. In a call with reporters, Erwin Chemerinsky, dean of the University of California Irvine School of Law, said Republicans’ decision not to hold a hearing, vote or even a meeting on the nominee is unprecedented. "I can’t identify any other instance where a Senate Judiciary [Committee] has ever said it wouldn’t hold a hearing," he said.

The 8 Republicans on the Senate Judiciary Committee who said they would ignore any nominee that President Obama asks them to consider were Chairman Grassley, Orrin Hatch (R-UT), Jeff Sessions (R-AL), Lindsey Graham (R-SC), John Cornyn (R-TX), Mike Lee (R-UT), presidential candidate Ted Cruz (R-TX), and Jeff Flake (R-AZ). None of these senators are in a vulnerable electoral situation this year-- either because they are not up for reelection, like Graham and Hatch, or because they represent a deep red state with a moribund Democratic Party, like Jeff Sessions and Mike Lee-- with one exception... Chairman Grassley of Iowa, a purple state.

As Carl Hulse reported today for the NY Times, "Grassley has seemed uneasy with the situation both in Iowa and in Washington. As photographers stalked him on Tuesday outside the Senate chamber, he raised a binder to cover his face before hurriedly retreating... 'Senator Grassley has surrendered every pretense of independence and let the Republican leader annex the Judiciary Committee into a narrow, partisan mission of obstruction and gridlock,' said Harry Reid." By this afternoon Reid and Grassley were in a public spat.

Grassley: "Childish tantrums aren't appropriate for the Senate."

Reid: "A childish tantrum? When we're asking him to do his job? He's chairman of a committee. He should hold hearings, report people out. By refusing to hold confirmation hearings for President Obama’s Supreme Court nominee, or hold a vote, they undermine the presidency, the Constitution and the United States Senate."

We asked Tom Fiegen, the progressive Democrat running for Grassley's seat, if Iowa voters are paying attention and if they're wondering why Grassley is putting a narrow partisan GOP ideology ahead of the best interests of the country, not to mention his own constitutional duty. Please take a look at what Tom had to say below and if you'd like to help his election, he's on the Blue America ActBlue page for candidates who have endorsed Bernie and are running on the same issues that have motivated his campaign. This is the link to that page.  

To Understand U.S. Senator Chuck Grassley, Follow The Money
-by Tom Fiegen,
Candidate for U.S. Senate, Iowa

Senator Grassley has declared in writing his refusal to interview a replacement judge for the vacancy on the Supreme Court. What's much more interesting is what's behind Chuck Grassley's obstructionism. We have to look behind the curtain to see who is pulling his strings. 

It's the big money contributors.

We're talking about really big money pulling Chuck Grassley's strings. It is the wealthiest of the wealthy, the one-tenth of 1% who consider an Obama Supreme Court nominee a profound threat to their grip on power. Bribes in the guise of campaign contributions might no longer work if the balance on the Supreme Court shifted.

These powerful oligarchs are the ones who really employ and pay Chuck Grassley. They have told him to do whatever it takes to preserve their power. A conservative Supreme Court has given the billionaires and oligarchs the political and economic power to run the country since Reagan. They don’t want to take a chance on losing that power. That’s why Chuck Grassley put his refusal to do his job in writing: to reassure the billionaires and the oligarchs that he is following their orders, not ours.

Senator Grassley’s written refusal to do his job is more than the usual partisan political games. This time, everything we care about as American citizens hangs in the balance as a 4 -4 split Supreme Court punts on all the important issues. Things like: police brutality, employer spying, Citizens United, government intrusion into our private lives, corporate fraud, unfair tax havens for the super-wealthy, poisons in our environment, and the very Constitution itself.  Leaving a vacancy on the Supreme Court for over a year will mean that our last line of defense against Big Brother government and the billionaire robber barons will be frozen in a perpetual 4 - 4 tie.

82 year old Senator Grassley is running for another six year term this year. Do we really want to reelect a career politican who is willing to put our Constitutional freedoms at risk to please his billionaire contributors?

My name is Tom Fiegen. I am running in the Democratic primary in Iowa to retire Chuck Grassley. I have spent my career representing working people. I am not taking super-PAC money. I am the son of sharecropper parents who worked hard to buy a farm of their own and then faced foreclosure during the Farm Crisis of the 1980s.  If you think a United States Senator should do their job, and represent the people, not the billionaires and the oligarchs, help me retire Chuck Grassley. As Bernie Sanders says, "enough is enough."

Is Obama About to Nominate an Exxon Lawyer to the Supreme Court?

Is Nicolo Machiavelli about to whisper into Obama's shell-like ear? (Source; click to enlarge)

by Gaius Publius

When we talk amongst ourselves, we leftie writers and activists, I sometimes hear it said that Obama should nominate someone very liberal to replace Antonin Scalia. I also sometimes hear that if he doesn't do that, it's because he feels pressured not to. Immediately after hearing these things, the next phrase going through my head is this one, the phrase that took up residence during the 2009 health care process:

Occam's Switchblade (n. ph.) — "He does it because he wants to." A way to explain a person's otherwise confusing behavior.

Which brings us to Obama's rumored list for Supreme Court justice, the one who will replace the newly departed Scalia. (Side thought — Did Antonin Scalia depart while accepting favors from someone with prior business before the Court? Was he there to be hobbed and nobbed with by any of the 35 other guests, who may also have past or future business before the court? Maybe we'll find out. It's not like he hasn't done it before; Scalia, I mean; accepted gifts, I mean.)

Topping every nomination short-list, printed, rumored and trial-ballooned, is Sri Srinivasan. Mr. Srinivasan is almost always named first (and out of alphabetical order) in lists with more than one name (example here; another here, first paragraph). And, as noted above, it appears he's being trial-ballooned by none other than Joe Biden. 

So let's take a look at Sri Srinivasan as a potential nominee. We'll start with Srinivasan and the climate, the one that Obama dearly loves. If he becomes the nominee, we'll take a look at other aspects of his biography.

Greens Are Wary of Sri Srinivasan's Fossil Fuel Past

This takedown of Srinivasan comes via Politico of all places. (But wheels within wheels. This doesn't look like a pro-administration article, a placement as it were, but it could be — a media placement that tanks apparent corporate favorite Srinivasan and allows Obama to nominate someone like Loretta Lynch, for example. Perhaps we'll look later at the many-layered chess game in this nomination, as Obama fends off his opponents, both left and right, prevents a possible anti-corporate Sanders nominee, notches another ... er, notch ... in his duel with McConnell, and pockets an E-ticket spendable at his post-retirement theme park party. Wheels within wheels.)

Here's Politico (my emphasis):

Greens wary of Sri Srinivasan's fossil fuel past

His work as an attorney representing Enron's former CEO and ExxonMobil raises hackles among some eco-activists.

The prospect of President Barack Obama tapping Sri Srinivasan for the Supreme Court is spawning a sharp debate among at least one part of the Democrats’ liberal grass roots — environmentalists turned off by his high-profile defense of giant fossil fuel companies. ...

Srinivasan’s work on human rights cases in which he defended ExxonMobil and the mining company Rio Tinto have raised particular objections from environmentalists. He also represented that enduring symbol of corporate excess, former Enron CEO Jeff Skilling, in the appeal of the executive’s fraud and conspiracy convictions.

"Any judge that sides with Big Oil over the American people has no place on our Supreme Court,” said Jane Kleeb, a Nebraska activist who helped lead the grass-roots campaign that killed the Keystone XL oil pipeline, in an email to POLITICO on Tuesday.

“Corporate interests have trumped citizens’ concerns for too long,” she added. “Folks in the heartland will not look the other way of Srinivasan representing both Enron and Exxon, which denies climate science and pollutes our land and water.”

Jane Kleeb, if you haven't yet heard of her, is entirely reliable on the subject of the climate. A Nebraskan, she's one of the national heroes behind stopping the Keystone XL pipeline, which would have run through her state.

The Exxon Supreme Court Nominee

Assuming Obama does nominate Srinivasan, would Exxon say thank-you in, say, another year or so, for putting an Exxon lawyer on the nation's highest court? Especially if doing so would also block a Sanders appointee, one who might take a dimmer view of the self-dealing insider game played by corporations and both parties alike?

Not sure, but if they did want to thank him, there are ways. I keep thinking of this:

One proposal for the Obama Presidential Library. Like Starfleet Academy, only pricier (source).

These presidential libraries don't build themselves. A person needs friends to help with some of the lifting.

GP
 

If that funny-talking Limey John Oliver thinks he can embarrass "Miss Mitch" McConnell, he's got another think coming

John Oliver tells us all about the "Thurmond Rule" -- and
shows us Miss Mitch calling it "this rule that doesn't exist"


"If the President has trouble doing nothing, we will be more than happy to show him how it is done."

-- Senate Majority Leader "Miss Mitch" McConnell, as
quoted this morning by the Borowitz Report (see below)

by Ken

First, a confidential to whoever thought it was a good idea to have John Oliver's Last Week Tonight off HBO's airwaves for three months: WTF??? I assume there were Reasons. There are always Reasons, aren't there?) I just trust that somewhere among those Reasons there's some assurance that the LWT team will be on the job with only minimal interruptions between now and the election.

As probably everyone knows by now -- since by this morning I saw the lead item plastered all over the Internet (here, for example, is Marlow Stern at The Daily Beast) -- the LWT gang was back last night. And as John explains, that lead item hadn't been in preparation for three months. It was only precipitated by Saturday's of the death of Supreme Court Justice Antonin Scalia, and the subsequent declaration by Senate Majority Leader "Miss Mitch" McConnell that his cabal of crackpots and thugs will not consider any nomination for a new Supreme Court justice which comes from President Obama. And never mind that the Constitution clearly makes such a nomination not only the president's right but his responsibility.


TO CATCH YOU UP ON THE STORY --

WASHINGTON (The Borowitz Report)—In a television appearance on Sunday, the leading Senate Republican warned President Obama “in no uncertain terms” against doing anything in his remaining three hundred and forty days in office.

“The President should be aware that, for all intents and purposes, his term in office is already over,” Mitch McConnell said on Fox News. “It’s not the time to start doing things when you have a mere eight thousand one hundred and sixty hours left.”

While acknowledging that the President has eleven months remaining in the White House, McConnell said that he and the President “have an honest disagreement about how long eleven months is.”

“The President believes it is almost one year,” he said. “I believe it is almost zero years. I’m not a mathematician, but I believe I am right.”

As for how Obama should spend his remaining time in office, McConnell said, “If the President has trouble doing nothing, we will be more than happy to show him how it is done.”

WELL, YOU KNOW THOSE RIGHT-WINGERS!

They don't answer to the law or the Constitution. They answer to a higher power: their megalomania and psychotic delusions.

Writing Saturday night, arguing that "we mustn't pretend that Justice Nino was anything but, you know, what he was," I may have surprised readers by being fairly accepting of Miss Mitch's declaration that his cabal will not allow consideration of an Obama Supreme Court nomination. But I was simply  accepting the reality --

that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

I did, though, add a footnote noting that if we were to play the game I'm so fond of, If the Shoe Were on the Other Foot, we could expect Miss Mitch and his fellow cabalists to sing a wildly different tune. "Of course," I wrote,

if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

Even as I wrote, I had a hunch that some version of this game had already been played for real. Now the Last Week Tonight team has given us the video.


DOES THE THURMOND RULE EVEN APPLY HERE?



I confess that when I wrote Saturday, I was fuzzy on the exact time frame specified in what John explains is known as the Republicans' Thurmond Rule. That's why I took pains to describe the situation of a president "faced with a Supreme Court vacancy in February of the fourth year of his/her term." The LWT segment clarifies that the actual terms of the Thurmond Rule would disallow a presidential nomination for a lifetime judgeship in the last six months of his term. (Note: I don't think we have to say "of his/her term" where Strom Thurmond is concerned. For old Strom, the idea of a "her" president was probably as inconceivable as, say, the idea of a "colored" president.)

As John Oliver points out in the segment, the last six months of the Obama administration begin on July 20. Meaning that even under the Thurmond Rule-that-isn't-a-rule, we're nowhere near the Point of No Lifetime Judicial Nominations.


SO WHAT? DOES IT MATTER AT ALL TO MISS MITCH?

Is there any reason to think that Miss Mitch cares any more about the terms of the wholly extra-constitutional Thurmond Rule than he cares about American law or the Constitution itself? He answers to no authority but the "Fuck America!" ethos of the 21st-century American Far Right, whose overriding goal is to turn the country into the toxic cesspool that is their minds.

Because, after all, Miss Mitch has done a lousy job of keeping it secret that throughout the Obama presidency his entire objective has been to obstruct and destroy. Fuck America! If he can't have his diseased vision of a fascist autocracy, then just fuck it, and Fuck All the Americans Who Don't Matter, because that's what right-wingers want to do: Fuck All the Americans Who Don't Matter. Of course for our One-Percenters, which is to say the most important group of Americans Who Matter, there's money to be made off the misery of the Americans Who Don't Matter. And for those who sense -- some rightly, some wrongly -- that they're being screwed but nevertheless embrace right-wing ideology, there's some kind of primitive satisfaction to be had in seeing those other poor souls screwed.

Otherwise, how to explain the existence, let alone the actual popular followings, of life forms like The Donald, Rafael "Ted from Alberta" Cruz, and the world's most immoderate "moderate," Marco Rubio? What has appalled me most about the creatures who have made up the Republican presidential "fields" in this and the last couple of presidential election cycles isn't that their politics is so reactionary and stupid but that they are all such screamingly horrible, inexcusable people.

And in their various ways they have all cynically embraced, even encouraged, modern-day America's Flight from Reality, something I've been squawking about for years now. It's the triumph of reality-substitute over reality -- of, as Stephen Colbert framed it, "truthiness" over truth.


WE CAN'T HANDLE THE TRUTH

In that Saturday footnote in which I speculated about the application of the If the Shoe Were on the Other Foot game to Miss Mitch's declaration of policy-by-hissy-fit. So what if it were to turn out that Miss Mitch was being hypocritical?

For right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

After all, hypocrisy is the least of it. Reality and truth have been prime casualties of the rise of the modern Far Right. Somewhere in the formative years of the new century, under the influence of propagandists like Karl Rove and Roger Ailes, and under the unwatchful eye and imbecile grin of George W. "Chimpy the Prez" Bush, the Right formally went off the truth standard, disclaiming any obligation at all to reality or truth.

Where Chimpy's own presidency faltered, it wasn't for lack of truthfulness, after all. He was never held to account for any of the lies with which his administration's policies had been sold. But well before he left the White House, Chimpy had begun to disappear before our very eyes, and it seemed clear to me that the public wasn't looking to him for truth -- about the disastrous Iraq and Afghanistan policies, for example -- but instead was insisting on its right to newer and better lies.

Instead the people got the Great Financial Meltdown of 2008. And even then they didn't connect the dots: that there's a price to be paid for government by the One Percent for the One Percent. Similarly, if there's any price to be paid for Government by Lies, the bill comes due far, far down the line, and can usually be fobbed off on some poor, unsuspecting souls.

The Right's Grand Disconnect from Reality hit home for me in the 2008 presidential campaign of Young Johnny McCranky, in which the candidate managed not just to avoid ever speaking the truth about anything but on most issues to offer a minimum of two, and usually more, mutually contradictory lies. After the election, I looked at the number of votes McCranky had nevertheless scored, and couldn't help but think there was going to be a price to pay for the GOP's official Disconnect from Reality. Even so, I couldn't have imagined the 2012 and 2016 GOP presidential "fields."

And the hard core of Democratic officialdom managed to remain only a few steps behind, making it official party philosophy that the very most that Dems had to do was be just the merest hair's breadth better than the R's.


Ain't this a kick in the pants? Compared with the nutso ravings of Miss Mitch and The Donald and Ted from Alberta and the rest, Colonel Jessup's argument sounds reasonable.


BONUS: A SCENE FROM THE FLIGHT FROM REALITY

The great David Sipress is currently on "Daily Cartoon" duty at The New Yorker, and today's offering seems very much appropriate to the theme of "Reality as Perceived (and Promulgated) by the Modern-Day Right."

“I had a dream last night that Planned Parenthood
did something new and horrible to a fetus! We need
to launch an immediate congressional investigation.”

#

Scalia (1936-2016)

We mustn't pretend that Justice Nino
was anything but, you know, what he was

UPDATE: Noah passes along a totally to-
the-point thought for the day (see below)

Futurama Wiki

by Ken

It happens every time an American officeholder dies leaving behind a record of evil: Amid the conventional pieties about the great sorrow, the great evil gets lost in the shuffle. In the case of that giant blowhard Antonin Scalia, the Supreme Court justice whose sudden death came as such a shock today, it's especially important not to let the subject pass through with the usual pieties.

In a word, Nino Scalia was a monster, and leaves behind an almost unbroken 30-year career of judicial mayhem -- adjudicating and bullying his fellow justices to adjudicate according to the diseased perversions of his social and political philosophy.

It's all the more important to call Justice Nino on his record because of the pretense he was allowed to maintain that he was a judicial "originalist," that his decision-making process was based on the "original intent" of the framers of the Constitution. Like just about everything this blowhard blew, it was a lie. His opinions were almost always formed in his far-right-wing ideological cauldron, and then dressed up in language pretending to claim knowlege of framers' "original intent," which was always twisted to support his ideologically based opinion.

Justice Nino devoted untold energies in those 30 years on the High Court to transforming the U.S. into the stinking hellhole of his mind: a world of unchallenged privilege for already-overprivileged white male Christians. Justice Nino always got to decide who had what kinds of rights and how much of them; the "originalist" trappings were simply grafted on. When push came to shove, as in the far-rightists's preposterous misreading of the Second Amendment to guarantee a non-existent right of all citizens to own guns, our Nino could not only ignore the "original intent" but ignore the plain language of the amendment, which states clearly that it relates to maintaining militias.

So on matters of government power and economic privilege, we were asked to believe that the framers' original intent was always to favor the power and privilege of the ruling orthodoxy. In matters of civic rights too, the operative concern was for the most restrictive orthodoxies -- as long as it wasn't right-wing orthodoxies that might be restricted.

Finally, some thoughts on a few specific issues:

JUSTICE NINO'S LEGAL "BRILLIANCE"

We're still hearing about how brilliant Justice Nino was, and what a brilliant writer, and all I can say is, once again: WTF? As writing, his Supreme Court opinions were barely a step above gibberish -- thuggish, assaultive, take-no-prisoners gibberish, mind you, but gibberish still. I suppose you could say he was a master of sophistry -- phony-baloney arguments dressed up to sound like simple logic. But I don't get how this passes for brilliant legal argumentation.

Hardly a word of his bombastic blithering ever made actual sense except as shameless bullying, substituting raw prejudice and aggression for argumentation. If any of his opinions had been submitted as a freshman English composition, it would have to have been graded somewhere between a peak of D-minus and a closer-to-typical F-minus. All the self-confidence in the world doesn't make logic-free, ad hominem ranting minimally acceptable argumenation.

THE SUPREME COURT SUCCESSION

I know there's already outrage being voiced at Republican leaders' bald statement that they won't consider an Obama nomination. This is certainly cheeky, but the reality is that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

FOOTNOTE: IF THE SHOE WERE ON THE OTHER FOOT

I always like to play this little game, If the Shoe Were on the Other Foot. Of course if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

But for right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

It's sobering enough to consider that right-wingers now have effective control of the Supreme Court confirmation process, as long as there isn't a 60-vote majority against them, and there isn't ever going to be one. And that means that the Right has influence amounting to veto power over the Supreme Court appointment process, since the right-wingers have effective veto power over any nominee they can muster 41 votes against.

This explains, I think, why -- notwithstanding right-wing invective against "liberal Supreme Court justices" -- we haven't in fact had a liberal Supreme Court justice, as far as I can see, since the retirement of Thurgood Marshall in 1993, and probably won't ever have another. The best we can hope for is moderate justices as distinguished as John Paul Stevens (1875-2010) and David Souter (1990-2009) -- both great justices, I think, for the intrepidity of their support for authentic constitutional values, at a time when those values were being increasingly assaulted by the right-wing thug justices, but neither in any sense a liberal.

The same goes for the Court's current block of moderates: Justices Ruth Bader Ginsburg (1993-), Stephen Breyer (1994-), Sonia Sotomayor (2009-), and Elena Kagan (2010-), honorable moderates all. Godspeed to them all.

There is, of course, an opportunity here for the DSCC --

To campaign for Democratic Senate candidates to retake control of the Senate, arguing the importance of Supreme Court confirmations (and confirmation of other presidential appointees). Democratic control wouldn't change the grim reality of the power of the filibuster, but it would certainly make a difference whether the Judiciary Committee holding confirmation hearings is chaired by a D or an R.

Yeah, I know this is pretty hilarious. I just thought I'd mention it.

ADDITION BY SUBTRACTION: THE
IMMEDIATE POST-SCALIA COURT

My gut response to the prospect of the current eight-member Supreme Court configuration remaining in place for, probably, more than a year: This is probably as good as we're going to get -- a case of addition by subtraction. At least now none of the nightmares that were set to ensue with the old 5-4 majority can happen. (Presumably the Court is sitting on a stack of cases it thought it had "decided" by that majority. Sorry, guyz!) Of course not much good can happen in this configuration except insofar as Slow Anthony K (or just possibly Chief Justice "Smirkin' John" Roberts) is prepared to make it happen, but how is this any different from the situation we've been in?

Obviously there are a lot of cases where the remaining justices will have to try to finesse 4-4 splits, trying to see if there's any kind of decison for which either side can negotiate a fifth vote. This will be especially problematic where federal appellate courts dump conflicting rulings in the High Court's hopper. It will be a mess. But can anyone say that the history of the Roberts Court has been anything but a mess?


UPDATE: NOAH SHARES THIS TOTALLY
TO-THE-POINT THOUGHT FOR THE DAY

"For some reason," he says, "I've been thinking of the attached quote attributed to Clarence Darrow's 1932 memoir."

#

Parting Shots, Including Antonin Scalia: It’s Republican World! 2015 In Review-- Epilogue

- by Noah

Oh how I wish one could make Republican World vanish just by no longer writing about it. But, it persists like a horrible virus, bent on running its course while infecting the body politic with vile fevers and chills, and America ponders those “Did this come from my body” moments. Do we survive the ill effects of Republican World, or, do we succumb? All I can say is that America has been very resilient in the past.

For my end of the year review, I could have written additional chapters. After all there is no end to republican nihilism and insanity. I could have written about other imaginary scandals that exist only in the minds of republicans: Benghazi, for one. But, really, do we need anymore of that one? Suffice to say, we have a Republican controlled Congress that has held something like 10 hearings on the subject, wasting over $4,500,000 of our hard earned taxpayer dollars, just for the most recent one, just so they could grandstand for the way too eager to comply media hacks.

The real Benghazi scandal is not just about the money wasted, of course. That money could have been safely invested and helped to provide food or medical security for Americans, but that is not what the Republican Party is about and they have proven that time and time again. No, the real Benghazi scandal is that Republicans, in their nihilism, saw 4 tragic American deaths as exploitable for political gain.

I could have written about another in a long line of fraudulent FOX “News” icons such as the incestuous, child-molesting Josh Duggar, late of the Family Research Council. Republican World luminaries such as Mike Huckabee, Megyn Kelly, and Sarah Palin had no qualms about defending him. Well, hey, at least he’s white, wink, wink.

I thought FOX had gone off the deep end with Cliven “Let Me Tell You About The Negro” Bundy. Then, along comes Duck Dynasty’s hate-filled Phil Robertson who suddenly makes repeat appearances as an authority on our foreign policy, regarding Syria, on Sean Hannity’s nightly "Romper Room for The Deranged" TeeVee show. What’s next! I have a feeling Hannity will top it in 2016. Now, if only he would top himself.

No, I don’t really mean that about Hannity topping himself. That would be sooo wrong, wouldn’t it? You see, FOX would probably then go and give him a state funeral and announce that the late Hannity is being replaced not just by Phil Robertson, but by Phil Robertson and Pat Robertson together. Then, they’d give Josh Duggar a weekly segment on raising a family.

Hannity’s resting place would be outside the FOX “News” building where he would lie in a glass coffin like Vladimir Lenin. Republicans could then come by and press buttons to hear and see recordings of Hannity’s greatest insane statements.

I have a lot of favorite Republican World 2015 stories. One is a story of Congresswoman Cathy McMorris Rodgers (WA-R). Rodgers claims to represent Washington’s 5th District. Granted her district is about as far east in her state as one can be without crossing the border into Idaho’s survivalist and living in an abandoned missile silo country, but, it didn’t look like that when the virulent anti-Obamacare Congresswoman went on her Facebook page and asked her constituents for their Obamacare horror stories. She didn’t get what she wanted.

Instead, so-called Representative Rodgers got an overload of Facebook responses extolling the eternally grateful life-saving virtues of Obamacare from her constituents, even conservative ones. You can begin reading them at the link I’ve provided. Was Rodgers chastened in any way shape or form? Well, to quote former House Speaker John Boehner, “Hell No!”

Rodgers took the responses and cherry picked out the few negative ones that worked for her Republican World state of being. There are many words one could use for a congresscretin such as her but I won’t say them here. I’ll just tell you that you won’t have to get far in the alphabet

Enter Supreme Court Justice Antonin Scalia: I’ve saved Sclalia for last because it seems fitting that I end “It’s Republican World” with a living fossil of racism and bigotry. Scalia’s recent racist statement was not the first time we’ve heard his racist thoughts. They weren’t even the worst. For instance, in a 2013 ruling on voting rights, he likened voting rights for African-Americans to what he calls entitlements.

Hey, Scalia boy, people died for what you dismissively refer to as “entitlements.”

Scalia made the most recent of his growing catalog of racist statements a few weeks ago while the court was hearing an Affirmative Action case that involves the University of Texas.

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”

“One of the briefs pointed out that most of the Black scientists in this country don’t come from schools like the Universtity of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Scalia is a perfect poster boy for American institutional racism. Here is a sicko racist who has reached one of the very highest stations that one can reach in our country. Scalia was nominated by President Reagan to fill the seat of an even worse racist named William Rehnquist. Ironically, Rehnquist was also a champion of the idea of “separate but equal” when it came to the education of Americans. As a law clerk in the early 1950s, Rehnquist wrote against Brown vs. Board Of Education, the case that called for segregation in American schools. At the start of his career as a republican operative, Rehnquist even worked to block Africa-Americans in Phoenix, AZ from exercising their right to vote.

Perhaps, I should ask if there is an affirmative action program for racist judges, but that would be wrong. I’ll leave further comment on Scalia here to the wonderful Andy Borowitz.

A new study conducted by legal scholars indicates that Justice Antonin Scalia would fare better if he served as a judge at a court that was “less advanced” than the United States Supreme Court.

According to the study, Scalia’s struggles to perform his duties in a competent fashion stem from his being inappropriately placed on a court that is “too demanding” for a person of his limited abilities.

“Forcing Justice Scalia to weigh in on complex legal issues that he lacks the background or aptitude to comprehend is, at the end of the day, cruel,” the study said.

The legal scholars theorized that Scalia would be more likely to thrive in a “lesser court where he does not feel that he is being pushed to hear cases that are too challenging for him.”

“If Scalia were reassigned to a ‘slow track’ institution such as a town traffic court, that would be better for everyone,” the study recommended.

Overt Racism In The U.S. Supreme Court-- Well, Sure... Scalia

Wednesday the Supreme Court heard oral arguments in Fisher v. the University of Texas at Austin, a case challenging the right of state universities to use race-based affirmative action in their admissions policies. The most right-wing of the Justices, Antonin Scalia-- who will be 80 in March and has increasingly been having episodes of senility-- launched into a racist rant that was more in line with certain thinking back in the 1930s when he was growing up. "There are those who contend," he asserted, "that it does not benefit African­ Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a slower-­track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas... [but from] lesser schools where they do not feel that they're being pushed ahead in classes that are­­ too fast for them." Later he added that "I'm just not impressed by the fact that ­­ that the University of Texas may have fewer [minority students] Maybe it ought to have fewer."

2015? Hello?

Donna Edwards, a brilliant congresswoman running for the open Senate seat in Maryland-- if she wins, she will be the first African-American senator from that state-- responded to Scalia's bizarre and offensive statement with a letter directly to him. She invited him to join her in a tour of Historically Black Colleges and Universities in Maryland. She told her constituents that "Today’s remarks by Justice Scalia were offensive, completely unacceptable, and have no place in our legal discourse. It is shocking that such abhorrent comments about African Americans were made by a U.S. Supreme Court justice. I would like to give Justice Scalia the benefit of the doubt that he spoke out of naiveté, and that is why I invited him to tour Historically Black Colleges and Universities. Last year I traveled to each HBCU in Maryland, seeing firsthand the incredible scientific work being done there by students and faculty. I hope Justice Scalia will accept my invitation and I look forward to our tour in the near future.”

Below is the fill text of the letter she sent Scalia. If you'd like to help her grassroots Senate campaign, please consider making a contribution here.

Justice Antonin Gregory Scalia
Supreme Court of the United States

One First Street, NE

Washington, DC 20543

Dear Justice Scalia,

I am writing to you regarding the remarks you made earlier today while hearing the Fisher v. University of Texas at Austin case. You are reported to have said that “most of the black scientists in this country do not come from the most advanced schools” and benefited from a “slower track.” To say that I am greatly disappointed in your uninformed comments is a gross understatement. I found them offensive, completely unacceptable, and believe they have no place in our legal discourse.

As someone who toured Maryland’s Historically Black Colleges and Universities (HBCU) in March 2014, I invite you to accompany me to Bowie State University, Coppin State University, Morgan State University, and the University of Maryland-Eastern Shore. Seeing their facilities in the Science, Technology, Engineering, and Mathematics (STEM) fields and talking with their leaders, faculty, and students first-hand, I know you will gain insight and see how they are producing highly qualified graduates needed to help maintain America’s national security and technological competitiveness in an ever-changing 21st Century economy.

For example, Dr. David Wilson is the 12th president of Morgan State University and has more than 30 years of experience in higher education administration. Dr. Wilson holds four academic degrees: a B.S. in political science and an M.S. in education from Tuskegee University; an Ed.M. in educational planning and administration from Harvard University and an Ed.D. in administration, planning, and social policy, also from Harvard. He came to Morgan State from the University of Wisconsin, where he was chancellor of both University of Wisconsin Colleges and the University of Wisconsin–Extension.

Morgan State’s many recent highlights include procurement of the university’s largest-ever research contract, a $28.5-million, five-year contract from NASA; inclusion of Morgan State as one of the recipients of a $129-million energy innovation research grant to Pennsylvania State University; the launch of an aggressive initiative to maintain excellence in customer service and improve the information technology infrastructure on campus; new construction on campus valued at $234 million; signing of articulation agreements with several two-year colleges, bringing Morgan State bachelor’s degrees to their campuses; approval of Morgan State’s first off campus baccalaureate program by the State of Maryland; establishment of Morgan State’s first online degree program; a significant expansion of study abroad opportunities for Morgan State students and the continuation of Morgan State’s tradition of producing Fulbright Scholars.

I look forward to hearing back from you shortly.

Sincerely,

Donna F. Edwards

Enemies of the State – Reflections on Insurrection and the Second Amendment

"Famous Whiskey Insurrection in Pennsylvania", an 1880 illustration of a tarred and feathered tax collector being made to ride the rail (click to enlarge; source)

by Gaius Publius

Not long ago, this excellent piece by Ken explored the real meaning of the Second Amendment. An added, also excellent, comment by John Puma contributed to the discussion. I'd like to summarize what these two are saying, then print the whole of the first part of Justice John Paul Stevens' dissent in Heller, the Scalia-authored Supreme Court majority opinion that "found" a right for personal gun ownership in the Second Amendment, an amendment about "militias." At the end, I'll add a comment of my own about American insurrection.

Quoting Adam Gopnik's good essay on this subject in The New Yorker, Ken writes (my emphasis):

To the inevitable argument "that the Second Amendment acts as a barrier to anything like the gun laws, passed after mass shootings, that have saved so many lives in Canada and Australia," Adam replies: "In point of historical and constitutional fact, nothing could be further from the truth: the only amendment necessary for gun legislation, on the local or national level, is the Second Amendment itself, properly understood, as it was for two hundred years in its plain original sense."

So what is the "plain original sense" of the Second Amendment? Keep in mind the times. The Constitution was establishing a strong federal government, and the relationship between that government and the (formerly supreme) state governments were continuously at issue. Each state had a state "militia" — a state army, in other words. Would the federal government require that these state militias be disbanded and replaced with a (standing) federal army?

Keep in mind as well that these state militias (state standing armies) had many functions, including suppressing insurrections — in the South, especially slave insurrections, as Thom Hartmann points out. In fact, according to Hartmann, these "militias" were also called "slave patrols," tasked with hunting down runaways.

But state militias weren't just for use against the slaves. This shows the role of state militias during the Whiskey Rebellion of 1791 (links at the source; my emphasis):

The Whiskey Rebellion, also known as the Whiskey Insurrection, was a tax protest in the United States beginning in 1791, during the presidency of George Washington. The so-called "whiskey tax" was the first tax imposed on a domestic product by the newly formed federal government. It became law in 1791, and was intended to generate revenue to help reduce the national debt.[3] Although the tax applied to all distilled spirits, whiskey was by far the most popular distilled beverage in the 18th-century U.S. Because of this, the excise became widely known as a "whiskey tax". The new excise was a part of U.S. treasury secretary Alexander Hamilton's program to fund war debt incurred during the American Revolutionary War.

The tax was resisted by farmers in the western frontier regions who were long accustomed to distilling their surplus grain and corn into whiskey. In these regions, whiskey was sufficiently popular that it often served as a medium of exchange. Many of the resisters were war veterans who believed that they were fighting for the principles of the American Revolution, in particular against taxation without local representation, while the U.S. federal government maintained the taxes were the legal expression of the taxation powers of Congress.

Throughout counties in Western Pennsylvania, protesters used violence and intimidation to prevent federal officials from collecting the tax. Resistance came to a climax in July 1794, when a U.S. marshal arrived in western Pennsylvania to serve writs to distillers who had not paid the excise. The alarm was raised, and more than 500 armed men attacked the fortified home of tax inspector General John Neville. Washington responded by sending peace commissioners to western Pennsylvania to negotiate with the rebels, while at the same time calling on governors to send a militia force to enforce the tax. With 13,000 militiamen provided by the governors of Virginia, Maryland, New Jersey, and Pennsylvania, Washington rode at the head of an army to suppress the insurgency. The rebels all went home before the arrival of the army, and there was no confrontation. About 20 men were arrested, but all were later acquitted or pardoned. Most distillers in nearby Kentucky were found to be all but impossible to tax; in the next six years, over 175 distillers from Kentucky were convicted of violating the tax law.[4] Numerous examples of resistance are recorded in court documents and newspaper accounts.[5]

The Whiskey Rebellion demonstrated that the new national government had the will and the ability to suppress violent resistance to its laws.

Even after the ratification of the Constitution, state militias had a military function.

Justice Stevens' Dissent in "Heller"

Now read Justice Stevens' excellent takedown of Justice Scalia's majority opinion in Heller. Trust me, you'll enjoy it (my emphasis in italics; links in the original):

Stevens, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 07–290

DISTRICT OF COLUMBIA, et al., PETITIONERS v. DICK ANTHONY HELLER 

on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit

[June 26, 2008]

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55, n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921).

In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.

I

The text of the Second Amendment is brief. It provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects.

“A well regulated Militia, being necessary to the security of a free State”

The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies.6 While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers.

The parallels between the Second Amendment and these state declarations, and the Second Amendment ’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.

The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803). [...]

The rest is a good read as well, though occasionally legalistic, as you'd expect.

Again, the concern of the framers was to protect armed state militias ... only. If they were concerned with protecting the hunting rights of citizens, as the contemporaneous Pennsylvania and Vermont Declaration of Rights documents did explicitly, they would have done so, explicitly. Scalia's opinion, joined by the right-wing majority of the Court, is a 180-degree reversal of the plain meaning of the Second Amendment.

Which leads us to one or two more considerations.

Enemies of the State: The American Insurrection

I have two takeaways from this discussion. Both are striking, and they echo each other in that they stand in 180-degree opposition to each other on exactly the same topic, American insurrection.

First, the primary argument (the "rationale" in sales terms*) of the American Right in favor of a "gun rights" interpretation of the Second Amendment is this: The reason (they say) the Founders wanted citizens to be armed is to oppose the federal government. Yet, as John Puma points out, Article One, Section 8 of the U.S. Constitution enumerates the powers of Congress, one of which is (paragraph 15, my emphasis):

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

▪ So ask yourself — How can anyone, for any minute, consider that a Constitution that protects the government's right to "suppress insurrections" also adds a right that encourages and arms them? The Constitution is plainly, obviously, an anti-insurrectionist document.

Second, it's been clear for some time that the American Right is not interested in government as established by the Constitution. Their elected officials aren't interested in using the power of Congress to govern, in using the power of the Executive Branch to enforce the law; nor are their appointed justices interested in using the power of the Court to enforce the Constitution.

Using the power of government to subvert the government is itself insurrectionist. Which tells us two things — the insurrectionist strain in voters of the American Right (per their arguments in favor of "gun rights") is matched by the insurrectionist strain in their leaders and those who hold office in their name.

▪ So ask yourself — Why is the rest of the country not treating this insurrection as an insurrection, like the Whiskey Rebellion, instead of treating it as just another difference of political opinion? In other words, why are we not treating the virtual (and sometimes literal) armed rebels in the hills as a threat to the existence of our government?

That's a serious question. The rest of the country does not see the American Right as an insurrection, is determined not to, in fact, and also is encouraged not to. The reasons they don't and won't see the insurrection as an insurrection are both revealing and determinative of the outcome. After all, would the modern and mainly corrupted Democratic Party be able to sell its own brand of "rule by the rich" if they didn't have Republicans to point to as political enemies, instead of what they are, enemies of the state itself?

It seems at least possible that if the Democrats didn't keep the insurrectionist Republican Party alive as political enemies, their leaders would have to offer actual popular solutions, Sanders- and Warren-esque solutions, instead of only offering solutions favored by the wealthy that finance both parties.

I'm serious. Picture a world in which the Republicans were delegitimized as a political party. What would happen to the Democratic Party? It would split, of course, into a party that could only offer blackmail as a reason to vote for them, and a party that offered solutions to real problems instead.

Interesting considerations, no?

*The "rationale" in sales terms — The "rationale" is the cobbled-together explanation you give your spouse for why you want some god-awful something he's certainly going to oppose and you're determined to buy. And yes, this is how sales pitches work. They teach you about the "rationale," just this way, in courses about writing these pitches. The rationale always comes second in the pitch, after you stimulate the "want," the lizard brain reason for buying in the first place ("chicks will love you" or "fish will jump out of the water into your net"). 

GP