Any President Could End Judicial Review With a Single Sentence

Krystal Ball explains judicial review

by Thomas Neuburger

"The weird thing about judicial 'originalism' is that the explicit principle of judicial review is nowhere to be found in the Constitution."
—Ryan Cooper, "Democrats have a better option than court packing"

The Supreme Court has no mechanism to enforce a power it was never given. A single sentence could end their having it.
—Yours truly

It's refreshing to finally read someone other than Thom Hartmann (and myself, thanks to Mr. Hartmann) agree that Marbury v. Madison, the 1803 Supreme Court decision in which the Supreme Court unilaterally gave itself the power to overturn Congress, was wrongly decided.

Read the last part of that sentence again. First: The Constitution did not give the Supreme Court power to overturn Congress. The Court was designed simply to be the highest rung in the ladder of courts of appeal. The right to overturn Congress was given to the Court by the Court.

Then consider: What would happen if it was wrongly decided? "Law" that was decided by the Court would be overturned — both Roe v. Wade and Citizens United — but more, a two-and-a-half-century-long practice of the Court overturning laws, would be overturned. The supreme importance (sorry) of the Court in our lives would be overturned.

We'd no longer be slaves to nine justices and their decisions; we'd be slaves to our laws instead, for good or ill, as the Founders deliberately intended.

In many ways, the practice of "judicial review" by the Court is the most undemocratic element of a system that contains many undemocratic elements, from the Electoral College to the Senate itself. That undemocratic element ... would end.

The Fight to Replace RBG

Now consider the fight over the successor to Ruth Bader Ginsberg, the justice who recently passed away. Why is this battle so consequential? Only because the Court and its power is consequential.

But what if it wasn't? What if the Court, stripped of the power to overturn Congress, was simply a higher court of appeals?

If that were the case, the escalating war between pathological Republicans and status quo-serving Democrats for control of the Court would be made entirely moot. We'd see no more headlines like the ominous "Ginsberg's passing brings political chaos". Who would fight to the death to control the Court if the Court had so much less power?

"Rule by the bench" would largely disappear from American lives, and in the main our lives would be better. Yes, a "constitutional right of privacy" may not have been discovered (Griswold v. Connecticut) if judicial review had never existed, though Griswold leans heavily on the Fourteenth Amendment, but also, corporate personhood (Santa Clara v. Southern Pacific) and the free speech rights of money (Buckley v. Valeo, Citizens United) would both have died prior to conception.

In short, without judicial review, we'd have to rule ourselves via our laws and our lawmaking process. Perhaps that would increase the percentage of people voting.

Does the Court Control the President?

But let's look at a simple specific case. What if Congress expands Medicare and the Court says No, that isn't constitutional? Does the President have to do what the Supreme Court orders? The short answer, frankly, is no. Would that not solve our "Supreme Court problem" in an instant, with no muss or fuss whatever?

It's hard to say that more simply, but I'll try. What if the president, instead of obeying the Court, just listened and moved on? The extraordinary power of the Court over American life would simply and instantly end. No further action needed.

The Origins of Judicial Review

Here's Ryan Cooper to explore this in more detail:

[T]here has been comparatively little attention to the simplest and easiest way to get around potentially tyrannical right-wing justices: just ignore them. The president and Congress do not actually have to obey the Supreme Court.

The weird thing about judicial "originalism" is that the explicit principle of judicial review is nowhere to be found in the Constitution. All of that document's stipulations on how the courts are to be constructed are contained in one single sentence in Article III: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." 

Note that judicial review, a right "discovered" in 1803, was itself an act of partisan political manipulation:

Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.

So the Court gave itself this power to benefit Jefferson in a dispute with Madison, and did it in a way that made Jefferson less likely to object.

The following describes well and succinctly the obvious political background to the case. It's roots are in the conflict over appointments between an outgoing, lame duck administration, and an incoming administration of the opposite political party:

In the weeks after the Federalist president John Adams lost his bid for reelection to Democratic-Republican candidate Thomas Jefferson in 1800, the Federalist Congress increased the number of circuit courts. Adams placed Federalist judges in these new positions. However, several of these 'Midnight' appointments were not delivered before Jefferson took office, and Jefferson promptly stopped their delivery as President. William Marbury was one of the justices who was expecting an appointment that had been withheld. Marbury filed a petition with the Supreme Court, asking it to issue a writ of mandamus that would require Secretary of State James Madison to deliver the appointments. The Supreme Court, led by Chief Justice John Marshall, denied the request, citing part of the Judiciary Act of 1789 as unconstitutional.

Justice Marshall and the rest of the Court split the baby, gave Marbury the right to his commission, but said it couldn't be granted because one part of the law that granted it conflicted with one part of the Constitution. From the same source:

Though Marbury was entitled to his commission, the Court was unable to grant it because Section 13 of the Judiciary Act of 1789 conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void.

So here we are, two and a half centuries later, ruled by a Court that's almost always far more conservative that the nation it rules.

Jefferson himself, by the way, hated judicial review. He called it the "despotism of an oligarchy ... Our judges are as honest as other men, and not more so."

Ending Judicial Review With a Single Sentence

The solution is simple — the president can just ignore the Court, which has no constitutional mechanism to enforce a power it was never given:

As Matt Bruenig argues at the People's Policy Project, it would be quite easy in practical terms to get rid of judicial review: "All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power." So, for instance, if Congress were to pass some law expanding Medicare, and the reactionaries on the court say it's unconstitutional because Cthulhu fhtagn, the president would say "no, I am trusting Congress on this one, and I will continue to operate the program as instructed."

"No, I'm trusting Congress on this one, and I'll continue to operate the program as Congress instructed."

Presto-chango, no more judicial review. Gone forever. No more ideological battles over Supreme Court seats. No more retaliatory court-packing schemes and appointments. All gone forever, gone in a single stroke.

The good news is, this is all a president would actually have to do. The the only downside is, some president would actually have to do it.
    

The Trumpist Regime's Criminality Is Getting On Everyone's Nerves

SURPRISE!! Look who doesn't want Mueller to testify publicly

House Judiciary Committee member David Cicilline (D-RI) was a guest on Fox News Sunday yesterday, where he confirmed that Barr is going to wind up with a contempt citation if he continues to prevent Congress from seeing government documents relevant to Trump's treasonous activities with the Russians. The deadline is this morning (at 9AM). "Members of our committee need to see the full report and the supporting documents so we can continue to do our work, conduct oversight in a responsible and sober way." This is going right over the heads of Fox News viewers who overwhelmingly see this as a baseless anti-Trump escapade by disgruntled Democrats.

A new NBC News/Wall Street Journal poll released yesterday, shows that voters are fed up with government. They hate Trump; they hate the Democratic Party; they hate the Republican Party and they hate William Barr. The only polled figure or entity who came out above water was Robert Mueller. 31% of voters have a positive view and just 19% have a negative view-- compared to 39% with a positive view of Trump and 49% with a negative view of Trump. Mueller is up 12 and Trump is down 10. But not among the topsy-turvy Fox viewers, where people admire Trump and distrust Mueller.

Robert Mueller Investigates by Nancy Ohanian

Republican national security expert Max Boot wrote an OpEd for the Washington Post yesterday, This Nation Is At The Mercy Of A Criminal Administration, a sentiment widely shared among Democrats, but not at all among Republicans. "imagine," he suggests, "that you live in a town that has been taken over by gangsters. The mayor is a crook and so are the district attorney and police chief. You can’t fight city hall. But at least you know you can turn for help to the state or federal government. Now imagine that it’s not a city or state that has been taken over by criminals-- it’s the federal government. Where do you turn for help? That is not a theoretical concern. After the release of special counsel Robert S. Mueller III’s report, it’s our grim reality." As they might say in Shtitsel, "Oy!"

Even before Mueller’s probe ended, federal prosecutors in New York had implicated President Trump in ordering his lawyer, Michael Cohen, to violate federal campaign finance laws. Mueller then documented at least six ironclad incidents of obstruction of justice by Trump along with numerous instances of misconduct that, while not criminal, are definitely impeachable. The New York Review of Books reported that two prosecutors working for Mueller said that if Trump weren’t president, he would have been indicted.

Now the administration is obstructing attempts to bring the president to justice for obstruction of justice. William P. Barr isn’t the attorney general; he is, as David Rothkopf said, the obstructor general. We now know that Mueller wrote (in Barr’s description) a “snitty” letter objecting that Barr’s deceptive summary of his work, designed to falsely exonerate Trump, “threatens to undermine … public confidence in the outcome of the investigations.”

Yet when Barr testified to Congress after receiving the Mueller letter but before releasing the Mueller report, he claimed not to know whether Mueller disagreed with his conclusions. “He lied to Congress,” House Speaker Nancy Pelosi (D-CA) charged. But even if it could be proved that Barr committed perjury (no sure thing), who would prosecute him? Is he (or his deputy) going to appoint a special counsel to investigate himself? Unlikely. And if he did appoint a special counsel, would he heed the counsel’s conclusions? Also unlikely.

Barr’s jaw-dropping performance before the Senate Judiciary Committee on Wednesday dispelled any lingering confidence in the impartial administration of justice-- the bedrock of our republic. He actually testified that if the president feels an investigation is unfounded, he “does not have to sit there constitutionally and allow it to run its course. The president could terminate the proceeding and it would not be a corrupt intent because he was being falsely accused.” Given that no president has ever felt justly accused of any misconduct, this means that the president is above the law. Barr is endorsing the Nixon doctrine: “Well, when the president does it, that means it’s not illegal.”

The administration makes clear that this is precisely its intent with its scandalous stonewalling of Congress. Barr himself refused to appear before the House Judiciary Committee on Thursday. Trump is suing to prevent his accountants and financial institutions from sharing his business records with Congress, while his treasury secretary is refusing to comply with a lawful demand for his tax returns. Trump is also blocking numerous current and former officials, including former White House counsel Donald McGahn, from testifying about his misdeeds. His conduct is redolent of the third article of impeachment against President Richard M. Nixon for failing “to produce papers and things as directed by duly authorized subpoenas” from Congress.

While conferring legal immunity upon himself, Trump is eager to weaponize the legal system against his opponents. The Mueller report documents three separate occasions when Trump demanded a Justice Department investigation of Hillary Clinton. Now, the New York Times reports, Trump and his attorney, Rudolph W. Giuliani, are attempting to instigate a criminal probe of his leading 2020 opponent, Joe Biden, on what appear to be trumped-up charges of corruption. In one of the more chilling exchanges during his Senate testimony, Barr would not say whether “the president or anyone at the White House ever asked or suggested” that he open an investigation. If the answer were “no,” he would have said so.

It is hard to think of any president in the past 230 years, including Nixon, who has ever sabotaged the rule of law so flagrantly or so successfully to protect his own hide. And, sadly, it is hard to imagine that anything can be done about it before Nov. 3, 2020. The House could try to compel compliance with its subpoenas, but the Justice Department will never file criminal charges, and the courts could take years to decide a civil suit. The House could vote to impeach Trump or Barr-- which they richly deserve-- but that would be a purely symbolic act and could backfire politically because Senate Republicans, like the O.J. Simpson jury, would vote to acquit regardless of the evidence.

So for the next 18 months, at a minimum, this nation is at the mercy of a criminal administration. I am in despair as I have never been before about the future of our experiment in self-rule. Before Mueller filed his report, it was possible to imagine the president being brought to justice. That fantasy is no longer tenable. Instead we are left with the dismaying likelihood that the president will now feel emboldened to commit ever greater transgressions to hold onto power-- and thus delay a possible post-presidential indictment.

I suspect, though, that Fox Nation doesn't read the Washington Post. Over the weekend, the editorial board of the Salt Lake Tribune quoted Federalist No. 51 by James Madison: "But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition." For those who might find it too obtuse or abstract, the editors explained what they are getting at:

Madison’s plan for the survival of popular government was nowhere to be seen last week, as Republican members of Congress put their loyalty to a president of their own party ahead of their sworn duty to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”

By abandoning the role the Constitution assigns them, to jealously defend the power of their branch of government against encroachments by other branches, Republicans in Congress surrender their duty, their power and their part in defending American democracy.

Ambition no longer counteracts ambition.

And for what?

To get themselves on the good side of a chief executive who is so clearly corrupt, engaging in obstruction, campaign and ethics violations, using the presidency as a cash cow for his personal business interests, who disrespects the separation of powers, freedom of the press, the rights of minorities and immigrants and our long-standing international alliances.

Some will look at the situation and argue that the Democrats are being as partisan in their questioning of the president and his attorney general as the Republicans are in their defense of both.

Maybe. But there can be no question that, at least in the matter that was before the Senate Judiciary Committee the other day, these blind squirrels have come upon a very large cache of nuts.

Senate Republicans, including Utah’s Mike Lee, spent the day feeding Attorney General William Barr softball questions and trying to make the case that there was nothing to see, there’s no collusion and no corruption and no obstruction of justice. Time to move along.

These are arguments that can only come from willful partisan ignorance of the facts as they are before us.

The report from special counsel Robert Mueller laid out a litany of fishy contacts during the campaign and acts by the new president that would have been obstruction of justice if anyone had carried out the president’s orders. Or if it were considered possible, as Justice Department guidelines faithfully followed by the Mueller team says it is not, to indict a sitting president.

Mueller’s handicap through all of this is that he is an honorable man who stands by the rule of law, operating in a city that is neither. Investigating a president through the federal grand jury system is difficult because prosecutors are used to assembling and presenting their evidence in secret and only making it public if there is an indictment-- which triggers a process in which the accused is able to defend himself.

No indictment, because the president can’t be indicted, means no trial. Means no chance for the president to defend himself. Means it all gets packed up and delivered to the attorney general and then, maybe, to Congress and to the American people.

One bright spot in all of this-- small but important-- is the call from Utah’s other senator, Mitt Romney, for Congress to hear from Mueller directly. That is exactly what should happen, and soon.

It may be painful for the special counsel to publicly call out the attorney general for willfully misrepresenting-- that is, lying about-- the conclusions of his report and the underlying evidence.

But Mueller can handle it. Even if the Republicans in Congress cannot.

Editorial boards around the country are expressing similar sentiments-- without mention of Mike Lee or Mitt Romney. Republican senators who will have to face the voters next year in swingy states-- like Iowa (Joni Ernst), Colorado (Cory Gardner), Maine (Susan Collins), Arizona (Martha McSally), North Carolina (Thom Tillis), maybe even Georgia (David Perdue), Texas (John Cornyn) and Kentucky (McTurtle)-- don't want their Fox Nation viewers seeing these kinds of editorials in local newspapers. One more thing to consider though: Pelosi's role in refusing to impeach the criminal and treasonous Trump-- and for strictly political reasons. America deserves better than Nancy Pelosi.

Ball and Chain by Nancy Ohanian

Another Politically Connected Financial Predator Is Too Rich To Jail-- Steve Cohen Gets The Equivalent Of A Big Traffic Ticket

I have to admit I was surprised the other day to see a tweet from reactionary Southern California Congressman Darrell Issa quoting James Madison. It flew right in the face of the Grover Norquist-GOP nihilism that calls for shrinking government down to the size it can be drown in a bathtub: " If men were angels, no government would be necessary."

Ideologically, Republicans don't usually see government as part of the solution, but as part of the problem. Where Democrats expect government to help right the power imbalance between ravenous predators in the financial world out to enslave the rest of us, Republicans demand government get out of the way of businessmen whose greed will result in progress. (Watch the clip from Fox News above, where many of them feel there should be no government regulations.)

Steve Cohen is just that kind of greed-obsessed financial predator each party supposedly approaches from a different angle. Cohen, founder and CEO at hedge fund SAC Capital Investments, has spent hundreds of thousands of dollars bribing (legalistically) politicians on both sides of the aisle. One day he'll write a check for $28,500 to the Democratic Senatorial Campaign Committee and the next day he'll send max contributions to Eric Cantor, Miss McConnell, Dave Camp (Chairman of House Ways and Means), Pat Toomey and then top it off with $30,800 to the National Republican Campaign Committee. He finances corrupt conservatives on both sides of the aisle-- and with the kind of big bucks they pay attention to. He's ranked the 106th richest man in the world, with a net worth of around 9 billion dollars.

Last year, the New York Times reported that Cohen was over his head in criminal activities. (No one ever makes billions of dollars who isn't.)

Steven A. Cohen, SAC’s billionaire founder, had burnished his reputation as a market wizard by surrounding himself with hard-charging traders-- many of them former college jocks and frat boys who thrived in the fund’s competitive, testosterone-fueled environment.

But the brainy and unassuming Mr. Martoma, armed with a Stanford business degree and an expertise in biomedicine, was part of a wave of SAC hires in a crack new research unit. They were just as driven but had more distinguished pedigrees, hailing from top investment banks and elite schools. They were drawn to the firm, in part, by the lavish annual bonuses Mr. Cohen bestowed upon his top performers, sometimes reaching into the tens of millions of dollars.

When Mr. Martoma walks into Federal District Court in Manhattan on Monday morning, he will represent something else: the latest in a growing list of former SAC employees who find themselves accused of breaking the law.

The case against Mr. Martoma, made in a criminal complaint filed by the government last week, represents a watershed moment in its multiyear investigation of insider trading at SAC. For the first time, prosecutors have linked Mr. Cohen to trading activity that the government contends was illegal.

Mr. Martoma has rebuffed efforts by federal authorities to persuade him to plead guilty and cooperate, said a person briefed on the investigation who was not authorized to discuss the case. But if he were to “flip,” Mr. Martoma could help the government with its investigation of Mr. Cohen.

No waterboarding in this case-- and, predictably, in the end, Martoma has decided to protect Cohen, even though Cohen had personally signed off on the illegal trades. Five of his traders have been arrested and three have already plead guilty. The indictments never even mentioned Cohen by name. He's referred to as "Portfolio Manager A." When his first wife sued him 3 years ago for racketeering and insider trading. the government dismissed the case as speculation and rumor mongering.

Friday, the SEC announced Cohen's firm "has agreed to pay" $616 million to make the whole mess go away-- although they tried painting it in more heroic terms: "The settlement involving CR Intrinsic ranks as one of the largest ever assessed in an SEC action and exceeds the $400 million paid by Michael Milken to settle civil charges in 1990, including insider trading and stock manipulation."

The Securities and Exchange Commission announced Friday that CR Intrinsic Investors will pay $602 million, a record sum for an insider-trading case. The other affiliate, Sigma Capital Management, settled for nearly $14 million. Neither entity admitted nor denied wrongdoing, and their agreements await court approval.

For years the government has suspected SAC of profiting from illegal trading tips. At least five people have been accused of insider trading while they worked for the hedge fund. Federal authorities have never charged Cohen, but the government’s persistent scrutiny of his firm has sullied his mythical status in the hedge fund world.

The most damaging case was the one involving CR Intrinsic and one of its former portfolio managers, Matthew Martoma, who was charged by the government with running the most lucrative insider-trading scheme ever while working closely with Cohen.

In separate cases, federal prosecutors and the SEC accused Martoma of getting secret tips from a neurologist about the results of a clinical trial involving an Alzheimer’s drug. The tips allegedly enabled the hedge fund and others to make more than $276 million in illegal profits or avoided losses. Martoma denies the charges.

None of the politicians who have taken money from Cohen and his companies have given it back or contributed the amounts to charity or anything like that. In the past few years, the politicians who have benefited the most from Cohen's... generosity, were Eric Cantor (R-VA), Kelly Ayotte (R-NH), Dave Camp (R-MI) and Pat Toomey (R-PA), three sleazy characters with reputations for taking bribes from Wall Street crooks in return for furthering narrow special interests and personal agendas. He has also been a major financier to Eric Cantor's own PAC, Every Republican Is Crucial (EricPAC).

Ironically, Cohen, who lives in a 35,000 square on 14 acres in Greenwich, Connecticut, draws a billion dollars a year from his company as a personal salary, and is one of America's biggest private spenders on art and fake art (with his own personal art museum), is on the board of the Robin Hood Foundation.

South Carolina Encouraging Gun Sales With Unconstitutional Tax Breaks

Typical Jim DeMint voter

Funny how vehemently conservatives fought against Thomas Jefferson's and James Madison's Bill of Rights-- the first ten amendments to the Constitution (just in case any modern day conservative should chance upon this post). Between 1789 and 1791 there was practically open warfare over their adoption as representatives of the wealthy elite, like Alexander Hamilton, fought against them as strongly as the 4 radical right Jims-- DeMint, Inhofe, Risch and Bunning-- fight against anything and everything that would in the slightest way help the lives of ordinary Americans.

All the vitriol and predictions of doom in that debate between progressives and reactionaries sounds a lot like the vitriol we're hearing now over the healthcare bill-- and every other piece of progressive legislation introduced-- only without Fox, Hate Talk Radio and the hundreds of millions of dollars with which corporate America has gamed the system. Some of those amendments are still being challenged by conservative elements-- like separation of church and state, due process and speedy public trials with impartial juries "composed of members of the state or judicial district in which the crime occurred." Ironically, one of the touchstones of modern day conservatism, the right to form well regulated militias and keep and bear arms, was the second amendment. (It was rejected by New Jersey, New Hampshire, New York, Pennsylvania, and Rhode Island specifically. And on top of that Connecticut, Massachusetts and Georgia never ratified the Bill of Rights until 1939!)

In any case, South Carolina today is one happy camper of a state that that particular right was passed and is celebrating it this weekend with a suspension of the 6% state sales tax on weapons. Black Friday in South Carolina saw an incredible increase in weapons sales-- as well as an increasingly common tragic gun rampage in Florida; 10,000 people are killed annually by gun loons. Friday it was 4 unfortunate family members of 35 year old Miami resident and shooter Paul Michael Merhige, including his pregnant sister and her twin, a 6-year-old cousin and a 79 year old aunt. Now that's what I call a Confederate hero!

Actually this was South Carolina's second tax-free weekend for gun sales and other states we should have been happy to see leave the Union long ago have followed suit: Louisiana, Texas and Kentucky. (Never too late.)

“Because of the savings, people who might be wanting a gun may be motivated to get one for that 6 percent off,” said Jimmy Johnson, owner of B and B Sporting Goods and Pawnshop. “We’ll sell probably three times more guns with the tax-free weekend than we would on any given weekend or even a big holiday weekend.”

He estimated about 225 people bought guns from his store Friday, a steady stream of customers taking advantage of the discount to buy what they had wanted for a while.

Johnson said last year’s tax holiday dramatically improved gun sales at B and B.

A crush of people went to Grady’s Great Outdoors to buy firearms Friday.

A tent was set up in the parking lot so buyers could secure state approvals to buy weapons before the store’s doors opened.

The South Carolina Supreme Court ruled that the legislation authorizing the tax-free gun sale weekends is unconstitutional-- but that certainly didn't stop anyone. We're talking about South Carolina here, folks, home of Joe "Liar" Wilson, a state that sane tourists from around the world are starting to avoid because of extremism. Meanwhile, Mayors Against Illegal Guns, which includes Joe Riley of Charleston, Bob Coble of Columbia and Joe McElveen of Sumter, are pointing out all the terrorists and criminals who get their hands on guns because of idiotic laws like the Tiahrt amendments-- you know, destroying background records in 24 hours, which prevented the FBI from knowing what Hasan was up to at Ft. Hood.

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.

Chucky and me: At last, I come clean and reveal to the world the full sordid story of my history with New York's power-grasping senior senator

"Education is the true foundation of civil liberty."
--James Madison (pictured at left)

"The most dangerous place on earth is standing between Chuck Schumer and a camera."
--Oscar Wilde (some sources specify "a TV camera," but that seems doubtful; where would Oscar Wilde have heard about TV cameras? this sounds to me like a later embellishment of the great wit's bon mot)


All right already. I give! The hue and cry to once and for all pull the scab off my relationship with Chuck Schumer has become deafening.

Just recently in this space, you may recall Howie reporting his relentless grilling of me regarding my awareness of Chucky while we were all students at James Madison High School in Brooklyn. And not just Chucky himself, but apparently I was supposed to remember all the members of his family. I denied everything.

For the record, Chucky (class of '67) was two years behind Howie and me (class of '65). Which is more significant than the bare number might suggest, because unlike many traditional high schools, Madison had only 10th, 11th, and 12th graders infesting the halls of what was known popularly as "the Main Building," to distinguish it from "the Annex," an eerie isolation ward quarantined on the top floor of an elementary school way the hell out on the other side of Nostrand Avenue. In our district, graduates of K-8 elementary schools were bundled off to the Siberia of the Annex as freshmen, to be joined the following year by graduates of the district's junior highs as sophomores in the Main Building.

I had just moved to New York that September, a fugitive from the Midwest--into a house my grandfather had bought for us in part because it was only a block from Madison! The Main Building, that is. You know, the place where I couldn't go to school for another year.

As fate would have it, only a couple of blocks from our house in the other direction was P.S. 197, which Howie and my other first friends as a transplanted New Yorker had gone there. And it happens that my family has a history with P.S. 197. My mother grew up in more or less this same neighborhood, and her baby brother, my Uncle Ralph, attended P.S. 197 the year it opened! According to family legend, the classrooms weren't ready in time for the first day of school, and so classes began in hastily assembled chicken coops. (Okay, so my family doesn't have the most inspirational legends. If you can do better, who's stopping you?)

Now, to recap: Since Chucky was two years behind us, that means that we were only in the building (i.e., the Main Building) together for one year, while Howie and I were seniors and he was rocketing his way to superstardom in the sophomore class. In addition, New York City public high schools were so overcrowded, at least back then, that we were on three shifts-- admittedly overlapping, but still. What's more, my recollection is that sophomores were in general assigned to the PM shift, while we lordly seniors hunkered down in the early hours.

One thing all Madison students were meant to have in common: a daily burst of inspiration from this stirring quote by our namesake:

"Education is the true foundation of civil liberty."

It was engraved in a long stretch of stone centered above the Main Building's main entrance, stretching a good ways south and north on Bedford Avenue. The only hitch was that, at least in our time, students were never allowed to use the main entrance. Side entrances were designated for that purpose.

So what, you're probably waiting to hear, about me and Chucky? Well, as I tried to point out to Howie while he was grilling me, he may have known people in the classes of '66 and '67, because it's in his nature, wherever he is, to wind up knowing everyone there is to know. I usually wind up knowing hardly anyone, and I don't remember having contact with anyone outside the class of '65, except in gym class, and we're not going there now. (If you've seen the gym-teacher episode of Seinfeld, you have a clue.)

So the complete story of my history with Chucky is, well, zilch.

Well, not quite. Without even knowing of his history-making romp through my old alma mater, I soon enough became aware of him. He was only 23 when, straight out of Harvard Law School, he was first elected to the New York State Assembly ("becoming," according to Wikipedia, "the youngest member of the New York legislature since Theodore Roosevelt. Following what turned out to be a lifelong pattern, he stockpiled campaign cash while be bided his time, waiting for an opportunity, which came when U.S. Rep. Liz Holtzman chose not to run for reelection, but instead to challenge New York's veteran and much-respected liberal Republican U.S. senator, Jacob Javits. The year was 1980, and we will be coming back to this momentous election. For Chucky it was the year he was first elected to Congress, where once again he bided his time.

It took awhile. In part, the path upward was blocked by a startling newcomer to state electoral politics, a right-wing Republican from Long Island named Alfonse D'Amato, who in 1980 stunned a complacent Senator Javits by defeating him in a Republican primary.

Now of course, if you grew up Jewish in New York in those years, Jack Javits was something of a god--he was a man who had risen as high as anyone could imagine a Jewish pol rising. Why, a couple of times his name was even mentioned as a possible vice presidential nominee! He was famous as a man of principle. He had wound up a Republican because he had no wish to deal with the loathsome Tammany political machine that controlled Democratic politics in New York City in those years.

But by 1980, Javits was old and sick. (I don't think we knew yet that he had been diagnosed with Lou Gehrig's disease, but he was clearly ailing.) He shouldn't even have run for reelection, and when he did, he didn't even see the punk D'Amato coming. And then his pride led him to do something unforgivable.

Javits was used to running with the cross-endorsement of the state's Liberal Party (I wish we had time to get into that strange entity, of which it was often quipped that it was neither liberal nor a party), and when he lost the Republican nomination for reelection, he still had the Liberal line available. At this point his pride wouldn't allow him to bow out more or less gracefully. As I recall, he deeply resented the Democratic nominee, Liz Holtzman (remember her?), for having the termerity to run against him and declare him obsolete. So he ran, and predictably siphoned off enough liberal votes from Holtzman (a great public servant who would have made a spectacular senator--and has racked up a distinguished career in public service anyway) to elect the unknown and unspeakable D'Amato.

Finally in 1998 our Chucky saw the opening he'd waited so long for. Al D'Amato was by now an entrenched three-term senator, and with the Republican takeover of Congress in 1994, he was at the height of his power, using his chairmanship of the Senate Committee on Banking, Housing and Urban Affairs (and the Department of Housing and Urban Development, which his committee controlled) as not just a power base but a personal piggy bank. And yet Chucky sensed that the great man was vulnerable. Or perhaps he thought that after waiting 18 years he couldn't afford to wait any longer. He went for it, and he won. [comment: no thanks to the gay "civil rights" group, HRC, which endorses insiders and endorsed D'Amato over Chuckie. Schumer has owned them ever since and they routinely do his bidding-- endorsing insider hacks. Sometimes everything works out perfectly.]

In fact, Chucky clobbered D'Amato, 54 percent to 44 percent. Ding-dong, the witch was dead. I for one couldn't have been prouder or happier. I even thought Chucky was going to be the liberal adornment to the Senate that Liz Holtzman should have been 18 years earlier. Judging from his House record, and the liberal causes he chose to champion, it seemed a reasonable hope. And as for his embarrassingly naked ambition, well, for once I could forgive it. Without it, could he have brought the odious Al D'Amato down?

So you see, in a sense I do have a history with Chucky. It's a long time since I lived in that congressional district, but it's hard not to be mindful of political developments there, and of course that eerie and indefatigable homing instinct for a camera for which he has become famous has made him hard not to keep in view.

I don't think I have to tell DWT readers that Chucky's Senate tenure has been, to put it mildly, a disappointment. And the reason I have taken this stroll down Memory Lane is that this history seems to have played a role in shaping the 2008-model Chucky. Oh, power-grasping instinct was probably all there, but as he made his slow-but-steady ride up the electoral on-ramp, he seems to have learned by example--negative example. He watched Liz Holtzman, to whose House seat he succeeded, stick to her liberal guns and find herself chased out of electoral politics.

But even more--and here I am totally speculating--he learned from Jack Javits that you can't let yourself be marginalized, and nothing will marginalize you more inescapably than an unwavering commitment to political principle. My guess is that Chucky admires Javits as much as anyone does, but that he also knows that Javits, for all the popularity and admiration he commanded in New York State, and even in the Senate itself, was a schnook, a nobody.

Even while Javits was being regularly reelected easily to his seat, he had risen as high as he was ever going to. Even within the Senate Republican caucus, in those years the perennial minority, he had no clout. I think Javits not only knew this but in some ways felt liberated by it. With nothing to lose, he could afford to stand on principle, and to say things and take positions that would have been unthinkable if he harbored any further political ambition. He knew that that vice presidential talk in his younger years had been just talk. That wasn't going to happen. Not for a traditionally liberal, bald New York Jew.

No schnook is our Chucky. No, Chucky always meant to be a macher--a "doer," a mover-and-shaker, what we might now call a "player." And as soon as he finally made it to the Senate, he set to work on the two paths necessary to get him where he wanted to be: insinuating himself into the Senate Democratic leadership, and working--as chairman of the Democratic Senatorial Campaign Committee--to make Senate Democrats the majority party.

I still have the feeling that if Chucky and I were to sit down and talk politics, there wouldn't be much difference in our views. But I think principle means something different to him, as a matter of both natural inclination and historical observation. Principle must never be allowed to stand in the way of ambition or power.

And so when Chucky is trawling for Democratic Senate candidates, as with his upwardly mobile House counterpart "Master Rahm" Emanuel (also very much a macher, not a schnook), nothing seems to matter more to him than finding "our kind" of guy: the kind of "centrist" (meaning, as Howie never tires of pointing out, right-wing) who appeals to people of wealth (of which he's apt to have a nice pile himself) and the custodians of the inside-the-Beltway establishment.

You know what my fantasy is. I dream of someday, just once, hearing our Chucky present his latest senatorial "find," a candidate he's promoting, with a pitch something like:

"We have here a candidate of such clear vision and unshakable visionary principle that he/she can't help but excite not just traditional Democrats but independents and nonvoters who have felt shut out of the political system. And we're betting that the excitement his/her candidacy generates will make him/her one of our most successful fund-raisers, especially at the grass-roots level."

Or is he just too scared that his beloved TV cameras wouldn't show up for, or look favorably upon, a presentation like that?

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