SCOTUS: What If The Worst Happens?

Pray RBG outlives McConnell and Trump

I often talk about how I went to the same high school as Bernie-- James Madison in Brooklyn. Bernie graduated in 1959, a couple of years before I started. And a few years before Bernie started, Ruth Bader Ginsburg was a student there. I was just 2 years old when RBG graduated from Madison but somehow the school seems more worthwhile because she was a student there. (Carole King too.)

RBG, one of the most admired women in America, was born in 1933. She'll turn 88 next March 15th. Unless Mitch McConnell's and John Thune's and their Senate cronies' Satanic prayers are answered. CNN reported that the Senate Republicans are sitting around hoping they can fill another Supreme Court seat before they are swept out of power in November, even talking about confirming a neo-fascist between November, when they are defeated at the ballot box, and January when the new Senate is sworn in!

CNN's Ted Barrett and Manu Raju: "Senate Republican leaders, undeterred by the scathing criticism leveled against them for blocking President Barack Obama's election-year Supreme Court nominee in 2016, are signaling that they are prepared to confirm a nominee by President Donald Trump even if that vacancy occurred after this year's election. The push comes despite ample apprehension from influential Republicans that the GOP could pay a political price for treating a nominee under Trump differently than they did under Obama. It also comes as Democrats are increasingly worried about the fragile health of Justice Ruth Bader Ginsburg, the 87-year-old liberal jurist who recently made public a new bout with cancer, and the possibility of other retirements. 'We will,' said Sen. John Thune of South Dakota, the second-ranking Republican leader, when asked if the Senate would fill a vacancy, even during the lame-duck session after the presidential election. 'That would be part of this year. We would move on it.'" Thune is not up for reelection this year. But McConnell is... and so is Senate Judiciary Committee chair Lindsey Graham.

[T]he veteran Iowa Republican who chaired the Judiciary Committee in 2016 and helped block Judge Merrick Garland-- Obama's nominee -- by refusing to schedule election-year confirmation hearings, said he would not fill a fill a vacancy now for the same reason.

"My position is if I were chairman of the committee I couldn't move forward with it," Sen. Chuck Grassley told CNN.

The current Judiciary Committee chair, Trump ally Sen. Lindsey Graham of South Carolina, has professed differing views about whether he would try to confirm a nominee during the last year of Trump's term.

Asked about his past opposition to moving a nominee in a presidential election year after the primary season, Graham said: "After Kavanaugh, I have a different view of judges," referencing the brutal 2018 confirmation process of Supreme Court Justice Brett Kavanaugh.

"I'd like to fill a vacancy. But we'd have to see. I don't know how practical that would be," Graham told CNN Monday. "Let's see what the market would bear."

Sen. Josh Hawley, a Missouri Republican who's a member of the Judiciary Committee, said that if a vacancy were to occur, he would like to get a nominee confirmed before the court's term begins in October.

Hawley said he would be "shocked" if Trump didn't try to fill a vacancy despite GOP arguments in 2016 that voters should decide which president selects a nominee during an election year.

Hawley said the difference between then and now is that Obama couldn't run again but Trump is on the ballot trying to win a second term.

"I think we have a different set of circumstances. We have a President who is very actively running for reelection," Hawley said. "He's going to be on the ballot. People are going to be able to render a verdict on him like they couldn't on Obama. My guess is he would absolutely nominate somebody. I would be shocked if he didn't."

Republican Sen. Joni Ernst of Iowa, who is running for reelection, told Iowa PBS last week she supports confirming a potential nominee this year, according to the Des Moines Register.

"(If) it is a lame-duck session, I would support going ahead with any hearings that we might have," she said. "And if it comes to an appointment prior to the end of the year, I would be supportive of that."

Senate Majority Leader Mitch McConnell, a Kentucky Republican, has repeatedly vowed to fill a vacancy this year and has said the difference between now and 2016 is that by the time Obama, a Democrat, nominated Garland to fill the vacancy left by the death of Justice Antonin Scalia, Republicans controlled the Senate. Right now, Republicans control both the White House and the Senate.

A vacancy could put some GOP senators in a tough spot. Asked if he supported filling a vacancy this year, Sen. Thom Tillis, a vulnerable Republican running for reelection in North Carolina, said, "I am praying for Justice Ginsburg's health. That's all I'm really focused on right now."

Asked about filling a vacancy caused by retirement, not death, he downplayed the likelihood that would happen.

"I don't think there are many indications that there are. Normally those moves are made back in June over the session. I don't see any real possibility that there will be one," Tillis said.

Republicans on the Senate Judiciary Committee include-- besides Graham, Grassley, Ernst and Tillis-- John Cornyn (TX), Mike Lee (UT), Ted Cruz (TX), Ben Sasse (NE), Josh Hawley (MO), Mike Crapo (ID), John Kennedy (LA) and crackpot neo-fascist Marsha Blackburn (TN). Instead of plotting to replace RBG, maybe they should be considering why Trump has set a pack of extrajudicial facsist goons loose on Portland and is threatening to do the same thing in Chicago and Detroit.

Or, in the words of David Graham (at The Atlantic): America Gets an Interior Ministry. "For decades, conservative activists and leaders have warned that 'jackbooted thugs' from the federal government were going to come to take away Americans’ civil rights with no due process and no recourse. Now they’re here-- but they’re deployed by a staunchly right-wing president with strong conservative support. In Portland, Oregon, federal agents in military fatigues have for several days been patrolling the streets amid ongoing protests about police brutality. These forces, employed by the Department of Homeland Security, have snatched people off the streets of the city, refused to identify themselves, and detained people without charges. Ostensibly, they are present to protect federal buildings from protesters. In practice, they seem to be acting on a much wider mandate, either to suppress protests or (more cynically) to provoke confrontation on behalf of a flailing White House that sees it as electorally beneficial." What can citizens do? Vote to defeat every single politician who doesn't speak out forcefully against this, on every single ballot, in every single constituency.

Schumer And Gun Sanity-- He's Not On Our Side

If you've been following this blog long, you probably know that I went to James Madison High School in Brooklyn, famous for all the entertainment industry people who studied there-- Carole King, Cousin Brucie, Chris Rock, Aaron Spelling, Judge Judy, Andrew Dice Clay-- but it was also a high school that produced plenty of political figures, from Ruth Bader Ginsburg and Bernie Sanders from before I was there, to senators Norm Coleman and Chuck Schumer while I was there. Schumer was an asshole even back then; no one liked him. He's the same kind of dick he is now. As we mentioned Friday, Schumer has been pestering Senate Democrats to not bring up gun legislation after the Las Vegas massacre. As usual, Schumer is misreading the public's mood. It's his forte.

A poll that was released yesterday by the Associated Press-NORC Center for Public Affairs Research reiterates what polls have been showing for years-- that a majority of American voters favors tighter gun laws.

Six in 10 Americans support stricter gun laws in the United States, but many question whether tightening of regulations can actually prevent some forms of gun violence, according to a new poll from The Associated Press-NORC Center for Public Affairs Research.

This new survey comes in the wake of the deadliest shooting in modern American history. Sixty-one percent of Americans say they want gun laws to be made stricter, 11 percent would like to see loosening of gun laws, and 27 percent would like to see gun laws left as they are now. Though most would like to see more restrictions on gun ownership, few believe it will lead to a decline in some forms of gun violence. Fifty-three percent of Americans think increased gun control will reduce the number of accidental shootings and nearly half say there would be fewer mass shootings (49 percent) and homicides (46 percent). Fewer say stricter gun regulations would result in a decrease in suicides (40 percent) or gang violence (36 percent).

Owning a gun has marked influence on attitudes toward gun laws and their ability to deter violent crime in the United States. Seventy-six percent of Americans without a gun in their household support stricter gun laws compared with 38 percent of Americans who own a gun and 64 percent of Americans who live in a household in which someone else owns a gun. Gun owners are less likely than those who do not own a gun to say stricter gun laws will lead to a decrease in accidental shootings, mass shootings, homicides, suicides, or gang violence.

Maybe we'd all be better off if this Thurber fellow did bring the etchings down

by Ken

I don't know how many times I've looked at this classic Thurber drawing over the years, and of course I've always laughed, but it's never produced me quite the effect -- a hearty guffaw, yes, but also some sort of jolt -- it did today when I saw it again in this week's edition of "From the Desk of Bob Mankoff," the New Yorker cartoon editor's newsletter-slash-blogpost, which I've described here as the most welcome offering I can look forward to finding regularly in my e-mailbox. (We've talked about it a bunch of times, most recently in connection with Bob's promotion of prima cartoonist Roz Chast's invention of Stranger's Day.)

TO SIGN UP FOR BOB MANKOFF'S NEWSLETTER

Remember, it's free. Just go the the magazine's website and look on the right side, way down, for a box with tabs for "NEWSLETTERS," "PODCASTS," and "FEEDS." I don't know from podcasts or feeds, but under the "NEWSLETTERS" tab you'll find checkboxes for "This Week" and "Cartoons" ("A weekly note from the New Yorker's cartoon editor"). Just check it and click on "SUBMIT.")

In blog form Bob's musings this week carry the title "My Sexual Revolution." (The newsletter version has no title.) He begins:

So Ariel Levy tells me that my generation did not invent sex. Bummer! Now I have to cross that off my C.V. It turns out there were previous sexual revolutions in the eighteenth and nineteenth centuries. If you say so, Ari, but ours had better music.

Still, I always thought the term “sexual revolution” was minted in the sixties, until I came across the 1929 book “Is Sex Necessary?,” by James Thurber and E. B. White. From chapter four, “The Sexual Revolution: Being a Rather Complete Survey of the Entire Sexual Scene”:

The sexual revolution began with Man’s discovery that he was not attractive to Woman, as such. The lion had his mane, the peacock his gorgeous plumage, but Man found himself in a three-button sack suit.


His masculine appearance not only failed to excite Woman, but in many cases it only served to bore her. The result was that Man found it necessary to develop attractive personal traits to offset his dull appearance. He learned to say funny things. . .

(The Ariel levy link is not, as you might guess, to a memo Levy sent to him on the subject, but to a "Books" piece of Ms. Levy's in the September 19 issue called "Novelty Acts," blurbed "The sexual revolutions before the sexual revolution" and starring the master of the orgone box, Wilhelm Reich.)

And then Bob pops in a couple of examples of "funny things about the new sexual freedom, and how it befuddled the Thurberesque male" which Thurber went on to draw, starting with the old favorite we've already seen at the top of this post, and proceeding to this even more cheerful one:


About the etchings drawing, I realize that at this point in time I have very little idea what anybody knows and so entertain the possibility that readers under a certain age may not even recognize the "etchings" gag -- a standard line once comically attributed to would-be roués who attempted to lure innocent young females up to their hives by asking, "Would you like to come up and see my etchings?" (I think all the versions I ever heard involved coming "up," and so presumed either an apartment or a hotel room. I just don't think the gag would translate to a colonial or ranch-style house.)

I don't know what it is about the Thurber etchings cartoon that so tickled and tugged at me today -- something about the poor fellow's utter unawareness of his cluelessness? But I do know where Bob's musings on sexual revolutions past sent me: straight back to the 12th grade at James Madison High School, where as Howie and I have both had frequent occasion to note we jointly served time way back when.

There wasn't much that thrilled me about that education, but there was certainly a smattering of teachers who changed me forever. Howie and I have both written about our 9th-grade English teacher, Mr. Fulmer, the man who pointed out regularly, "In a thousand years we'll all be dead, and all that will matter is our record of truth and beauty," and who never let any of us use the verb "think" when it referred just to stuff dribbling out of our mouths as opposed to being produce by the actual thought process. (Looking back, I find a surprisingly timely 2009 post I was quite fond of called "Do folks like Texas Gov. Rick Perry keep their brains turned off because they're afraid the battery will run down?") But I don't think I've written about my 12th-grade English teacher, Miss Tannenbaum, another great teacher, who in her rather different way was equally unforgiving of teenage bullshit.

And one subject that inevitably came up a whole lot in a class of 12th graders was sex. It was left to Miss Tannenbaum our colossal if hardly original misimpression that we had invented sex. It's a misimpression common (I think) to every generation, going back a lot farther than Dr. Reich. I guess it's the power of sexual impulses that causes most everyone who's just experienced them to imagine that we must surely be the first -- or else the world would be an entirely different place from what it is. On the contrary, I suspect, the world is the way it is precisely because every generation has made this same discovery, and hardly anybody since then has had much clue what to do about it.

Suddenly today I guess I'm thinking that our Etchings Guy may, in his laughable befuddlement, be if not smarter then at least more sensible than the rest of us. Maybe we should just have him bring the damned etchings down.

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Will Obama's Power To Grant Offices, Honors & Emoluments Grease The Path Towards Escalation In Afghanistan?

As our poor overburdened president stumbles inexorably, pathetically towards escalating a tragic and unwinnable war in Afghanistan that the military, the Intelligence community, clueless, defensive hawks in his own administration, and the Republican Party all insist on for their own varied and self-serving reasons-- and that the American people are set against-- I recalled a passage from Charles Pierce's stupendous little book Idiot America that I had read last summer. Ken and I both went to James Madison High School in Brooklyn-- as did Chuck Schumer, Bernie Sanders, Ruth Bader Ginsburg, Carole King, Chris Rock, Andrew Dice Clay, Cousin Brucie, Judge Judy, Frank Torre and Gambino Crime Family head Roy DeMeo. I'm not 100% certain about Ken, but I didn't hang out with any of them. But I've always maintained a fascination with our country's 4th president, the man who, basically, wrote most of the Constitution, much of the Federalist Papers and the Bill of Rights. He and Thomas Jefferson were the progressives to Alexander Hamilton's elitist conservatism.

Madison was very much aware of the power-- and abuses-- of both public opinion and of war. "Public opinion sets bounds to every government," he wrote late in 1791, "and is the real sovereign in every free one... The larger the country, the less easy for its real opinion to be ascertained, and the less difficult to be counterfeited; when ascertained or presumed, the more respectable it is in the eyes of individuals. This is favorable to the authority of government," wrote the man whose chief underlying principle revolved around the need for strong checks and balances to protect individual rights from the tyranny of the majority. "For the same reason, the more extensive a country, the more insignificant is each individual in his own eyes. This may be unfavorable to liberty." Nor did his disdain for war keep him from starting one.

"In war, he wrote in 1795 [while a member of Congress from Virginia-- 14 years before his inauguration to follow Thomas Jefferson], "the discretionary power of the executive is extended; it's influence in dealing out offices, honors, and emoluments is multiplied, and all the means of seducing the minds, are added to those of seducing the force, of the people... No nation could preserve its freedom in the midst of continual warfare."

Bush was apparently a dummy with some crafty people around him. Obama is a sharp and educated man with the same sort of crafty people are him. Bush craved being a wartime president. Madison didn't but he still started a war with England that nearly bankrupted the country and "was highlighted by Madison fleeing the White House a few steps ahead of the Royal Marines, who burned the place. Not even he could resist wholly the temptations he saw as inherent in any executive." Pierce thinks he tried. Many think Obama is trying as well.

Right now he's desperate to get more troops from mostly very unconvinced allies... and hoping to bribe Taliban fighters into switching sides, a longtime mainstay of war in Afghanistan. My friend Graham Isaacson wrote a song about it that makes far more sense than Obama's tepid strategy for disaster:



I wish I could think, like many of my friends, that Obama will do the right thing. I sincerely doubt he will, unless he's pushed to. And we're the one who have to push him-- we a small band of allies in Congress who think the same way we do about this way.

A Supreme Court Paying Attention To, Of All Things, The Will Of The People? Yes Drug Manufacturers CAN Be Held Responsible For Deadly Products

I remember in a high school American history class a teacher shocking me by telling us that the Supreme Court was super-sensitive to the ebb and flow of politics and how that alertness often impacts decisions. Well, hard core ideologues like Antonin Scalia, Sammy Alito and John Roberts-- who were chosen specifically for their unbending and partisan extremism-- will never be accused of sensitivity or alertness, but the rest of the Court (even, kinda/sorta Clarence Thomas!) voted against the kinds of anti-family corporate arrangements that were the hallmark of Bush Regime "justice."

The case was against a Pharmaceutical company, Wyeth, and this morning the Supreme Court, in a 6-3 decision, "upheld a $6.7 million jury award to a musician who lost her arm because of a botched injection of an anti-nausea medication. The court brushed away a plea for limiting lawsuits against drug makers." The rationale behind that plea was at the core of Bush Regime "tort-reform" and consumer policies and that "his" Supreme Court struck it down immediately brought to mind Mr. Feldstein from James Madison High School-- who not only taught me history but also planted certain ideas in the heads of a young Supreme Court Justice-to-be, Ruth Bader Ginsburg, as well as future Senators Chuck Schumer and Bernie Sanders.

In her thorough and compelling compendium of all that went wrong under the Bush Regime, Right Is Wrong: How the Lunatic Fringe Hijacked America, Shredded the Constitution, and Made Us All Less Safe
, Arianna Huffington looked at the dysfunctional and catastrophic dynamic between weakened regulatory agencies and the industries they were created to monitor. In the case of the FDA, 100% under the sway of overly generous Bush campaign donors at Big Pharma, it "proved especially deadly, with numerous drugs being pulled off the market only after causing serious injuries and deaths... Big Pharma spent over $170 million on lobbying in 2006, and has contributed over $66 million to federal candidates since 2002, with over $46 million of that going to Republicans."

In return the Bush Administration has served up FDA commissioners like Lester Crawford, who was forced to resign after failing to disclose that he owned stock in companies regulated by his agency, and current FDA commissioner Andrew von Eschenbach, a vocal supporter of faster drug approvals. The Bush administration has also given back to big business interests by taking away: the FDA is conducting only half the food inspections it was doing in 2003, and safety-testing of U.S.-produced food has dropped nearly 75 percent since 2003. This despite an upswing in highly publicized food recalls and outbreaks of food poisoning. And with more and more of our food coming from other countries, how appetizing is it to know that just 1.3 percent of food imports were physically examined by FDA inspectors in 2006?

...Ah, the beauty of the self-regulating marketplace...

After failing to protect the public from numerous drugs-- including the herbal supplement ephedra and the arthritis drug Vioxx-- the Food and Drug Administration has actually taken the side of drugmakers in a series of lawsuits intended to prevent states from stepping in to regulate drugs in the agency's stead and limit the liability of the manufacturer for a dangerous product. This is the bleeding edge of the deregulation craze.

Today's Supreme Court decision-- despite corporate supremacists Roberts, Scalia and Alito-- smacked down the entire edifice the Bush Regime built it's approach on. Laurie Beacham and Amy Widman of the Center For Justice And Democracy have written extensively about how the Bush Regime has undermined the basic premises on which the regulatory system was developed-- to protect society from unrestrained, unbridled corporate greed.

Agencies are supposed to protect the public by regulating their respective industries. While they derive their authority to regulate from Congress, their leaders, in many cases, are appointed by the president.  It is now widely known that many agencies have been seized by the very industries they are supposed to regulate, led by a revolving door of industry figureheads. For example, Jeffrey A. Rosen, general counsel for the Department of Transportation, is a former attorney for General Motors Corp. Erika Jones, former general counsel for NHTSA, now represents the auto industry. Daniel Troy, Chief Counsel at the FDA from 2001 to 2004, had a previous career representing pharmaceutical and tobacco companies in cases against the agency. In fact, it was soon after Troy’s appointment that the FDA began interceding in lawsuits on behalf of corporate defendants.  The result is agencies that protect industry from liability rather than protecting the public from negligent industry. This is more than cronyism; it is industry regulating itself.

...With regulatory agencies controlled by industries and headed by people biased against regulation, it is only liability that provides manufacturers, chemical companies, auto-makers, drug companies and other industries with an incentive to create safer products.  Litigation not only results in numerous dangerous products and practices being made safer or removed from the marketplace, but also allows attorneys to unearth important information and exposes these dangers to the general public. While so-called “tort reform” laws have already significantly eroded the legal rights of citizens to bring reckless corporations to court, “preemption” takes it a step further. The sector of the federal government charged with regulating industry is itself doing what big corporations have been trying to do through legislation for the last three decades: eliminating the right of injured people to sue and collect compensation from those responsible. 

So far, courts have resisted accepting preemption arguments made by agencies intervening in lawsuits.  It is yet to be seen how courts will respond to the newly promulgated agency preemption “rules,” though it is clear that the Bush administration is intent on appointing pro-industry judges. The collusion between industry and “safety” agencies is leading this country into a world where using prescription drugs, driving your car, and making cell phone calls require blind faith in corporate decision-making.  This is a proven health risk.

Today's Supreme Court decision stepped back from the Bush era precipice, although a startling report in today's Wall Street Journal made it very clear that Big Pharma was far from the only corporate sector bribing our political establishment. The banksters, for example, spent $5 billion to grease the wheels of deregulation.