Like many progressives, I would be delighted to have a Green New Deal as well as a host of other progressive programs that would immediately and directly help the American people. However, this is not going to happen anytime soon. Joe Manchin has shown that he can single-handedly prevent it now; he has in the past. His help from Republicans will grow exponentially if they reclaim one or both houses of Congress this coming November.

All the same, political power in the United States is distributed in a way that gives Republicans far more influence than they are warranted. They hold half the seats in the U.S. Senate despite the fact that their senators represent only 43% of the population, compared to the Democrats 57% In other words, 43% of the American people are represented by the 50 Republican senators; the remaining 57% by the 50 Democrats. That is clearly unfair.

In the U.S. House of Representatives, five million more Americans (3%) voted for Democratic candidates than Republican candidates, and yet the Democrats have only a few more seats than the Republicans. Once again, this is unfair, especially as we will shortly have new elections for the House with hundreds of districts that are gerrymandered.

The Supreme Court is heavily weighted towards Republicans, in a particularly pernicious way since five justices were appointed by Republican presidents who lost the popular vote. They became presidents only because of the antiquated Electoral College.

Chief Justice John Roberts and Justice Samuel Alito were appointed by President George W. Bush who lost the popular election to Al Gore by 500,000 people. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were appointed by Donald Trump who lost the 2016 election to Hillary Clinton by three million popular votes.

Over half (5 out of 9) of the justices who were appointed by semi-illegitimate presidents. This has been a grave and great injustice and needs to be corrected.

These problems of disproportionate power in the hands of Republicans exists in all three branches of our government. This is why we need a recalibration of how power is distributed in Washington and in our states. Recalibration is different from retribution. Changes should not be designed to make it “the Democrats turn.” Instead, it should be time for “fairness to prevail.”

Here’s how we would do it in three steps:

1. Either abolish the Electoral College or codify the National Popular Vote Interstate Compact in which the electors in all states are bound to vote for whomever one the national popular vote, not the vote in their state. This would be fair because our presidents would be elected solely on the basis of the vote of the people – the people who he or she represents.
2. Outlaw gerrymandering, the practice of dividing geographic areas into legislative districts in a way that gives one party an advantage over another. By outlawing gerrymandering, the number of seats from each party from each state would come close to reflecting that party’s percentage of voters in the state.
3. Institute some permanent and temporary changes to the Supreme Court:
   1. Permanent: Put term limits on how long a Supreme Court justice can serve, perhaps twenty years.
   2. Temporary: Because the court is currently leaning so far to the right, allow President Joe Biden to nominate three additional justices to the Supreme Court, temporarily constituting the court with ten members. Each of Biden’s nominees would be linked to one of the three Trump appointees. They would leave the Court when that particular Trump appointee no longer serves. The president at that time will then select one nominee to replace the two. When all six of the Trump and Biden appointees (exclusive of Ketanji Jackson Brown) are no longer on the court, it will be back down to nine members.

It is fair to ask how could this come to be. Why would Republicans accept these three changes, all of which would help Democrats, at least in the short run? These would be difficult changes to enact under any circumstances.

Naturally, there is no guarantee that Republicans would accept any of these changes. However, if the American people knew that Democrats were going to take a temporary pass on the most impactful items in their legislative agenda in order to spend several years focusing on recalibrating our democracy, it is possibly that many independents would join Democrats and a few Republicans to get this done. No guarantees, but the idea of advancing and simplifying democracy has a natural appeal to a great many voters. It’s worth a try because Manchin and the Republicans are not going away.

The post Recalibrating our Political System appeared first on Occasional Planet.

Filmmaker Michael Moore was on Chris Hayes’ MSNBC show on Tuesday, May 24, 2022. It was the day of another senseless mass shooting in the United States. The targets this time were once again school children. Twenty-one people in all killed in the town of Uvalde, Texas.

Moore is clearly for strong gun control legislation, but he didn’t say what so many proponents of gun control frequently say, “I believe in the Second Amendment.”

Instead, Moore pointed out how the Second Amendment has essentially given pro-gun people free license in opposing meaningful gun control. Then Moore raised a fascinating hypothetical question. “What if bullets had not been invented until fifty years after the U.S. constitution was written?”

His point was that gun rights are completely different from any other rights in the constitution. All of the other rights would have been relevant in the times of Greece, or Rome, or really any time. These non-gun rights could easily have stood alone without the Second Amendment.  This doesn’t mean that people could not have had guns once they and bullets were invented. The difference is that there would not have been a constitutional guarantee to be able to purchase and possess guns.

There are many who say that even with the Second Amendment, there is no such guarantee. The wording is thoroughly ambiguous:

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.

It may seem at first that this amendment guarantees people the right to bear arms, but the context is having a well regulated militia. So does the right to bear arms only apply for those who are in a militia (armed forces) or the United States, or can they own guns regardless of whether or not they are in the U.S. military?

This argument is one which America’s gun owners have won. Much as those who favor gun control want immediate new regulations, it appears that it will be years before Congress passes meaningful legislation or the Supreme Court chooses to value public safety above gun rights.

There are numerous reasons why the gun advocates are currently winning this dispute:

1. They own most of the guns, and that frightens many who want to limit gun rights.
2. The roots of the Second Amendment have a great deal to do with slave owners’ rights and needs to hunt down runaway slaves. Creating the constitution required considerable compromise to get southern states to agree to the document. Protecting their control over slaves who were already in the United States was essential to southern states’ acceptance of the constitution. In contemporary American society, many White Americans feel that they need to have guns to protect themselves against Black Americans.
3. Unlike most other democratic countries, the United States has this peculiar institution called states rights. In many cases, the rights of states supersede those of the federal government. For example, the state of Georgia can make a law stating that it is illegal to bring a glass of water to someone standing in line to vote, and currently there is nothing that the federal government can do about it. In the absence of strong federal gun controls, the states pass more “gun rights.”
4. The U.S. Senate favors small and southern states, and those are the states in which gun rights are most deeply cherished. This makes it very difficult to pass meaningful gun control legislation. It might be possible without a filibuster, but that arcane rule is cherished by senators from small states, rural states and southern states.

The United States did not come close to writing a constitution in a time before guns and bullets were invented. The first guns were invented in China in the 10^th Century. Michael Moore was not trying to point out that we almost avoided having the Second Amendment in our Constitution. What he meant is that it is significantly different than any other part of the constitution, and had guns not existed, we would have found a way to agree on the constitution.

It’s one of those “What ifs ….” that keep us thinking. It’s interesting talk, but regrettably, only academic now. Barring some sort of unforeseen circumstances, we’re going to have to live with lightly regulated guns for some time which means that we’ll have more Uvaldes and other mass shootings. The “thoughts and prayers” come easily; meaningful gun control is stymied by the oddity of having the Second Amendment in our Constitution.

The post What if Guns and Bullets Had Not Been Invented Before the Constitution Was Written? appeared first on Occasional Planet.

Monday evening an unknown individual inside the United States Supreme Court leaked a draft decision written by Justice Samuel Alito which would explicitly overturn the landmark decisions Roe v. Wade and Planned Parenthood v. Casey. This would mean the end to a guaranteed federal constitutional protection of abortion rights and at least 22 states, including Missouri, would almost immediately ban abortion entirely. This has been the animating force behind the conservative legal movement for the last two generations and this is their grand triumph which will only embolden the court to go even further. The language of Alito leaves the door open for reconsiderations of Obergefell v. Hodges which legalized same-sex marriage and Lawrence v. Texas which invalidated state laws criminalizing homosexual intercourse, and if you compare his dissent in Obergefell to his draft majority opinion in Dobbs v. Jackson Women’s Health Organization it’s not hard to imagine the Court deciding to also “Send the issue back to the states”. The Constitution of the United States of America is in the hands of 6 members of the federalist society, we are entering a new era of American politics.

President Biden has made clear that his administration has no plans to protect abortion access. In a statement the morning after the leak, the President said, “If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.  At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.” It’s important to be clear about two points. The first, is the most important and it is that the president’s party almost always has a bad midterm. Data from fivethirtyeight.com shows a familiar pattern (that I also wrote about in 2021 here) “Overall, in the post-World War II era, the president’s party has performed an average of 7.4 points worse in the House popular vote in midterm elections than it did two years prior. Therefore, since Democrats won the House popular vote by 3.0 points in 2020, Republicans can roughly expect to win it by 4.4 points in 2022 if history is any guide…Indeed, in the 19 midterm elections between 1946 and 2018, the president’s party has improved upon its share of the House popular vote just once. And since 1994, when (we would argue) the modern political alignment took hold, the president’s party has lost the national House popular vote in six out of seven midterm elections — usually by similar margins (6 to 9 percentage points) to boot.”

It took 9/11 for George W. Bush and Impeachment for Bill Clinton, as well as voter coalitions that no longer exist, for them to break history. It is extremely unlikely that President Biden, given his approval ratings, economic conditions, and redistricting will outrun history. The second point is, when Democrats had 60 Senators there were not enough votes to codify Roe into law. In 2022 there are not realistic opportunities to win 60 Senate seats, meaning the only avenue to codifying Roe or expanding the Court or any potential remedy would be through abolishing the filibuster which cannot find 50 votes in the US Senate. Currently in the House of Representatives, Speaker Nancy Pelosi is campaigning for the lone anti-choice Democrat in the House while he has a viable progressive challenger in Jessica Cisneros. This is the state of our opposition party, these individuals are the last line of defense.

There are some who have used this dark moment which represents the greatest contraction of civil rights since the end of Reconstruction to deliver an “I told you so”. These people would like to do historical revisionism about the 2016 election and have taken to blaming the left-wing in this country for the state of the Supreme Court. Generally, it’s not worth engaging in this discourse, but I’ve decided to do so today if not for the sole reason that these narratives are actively hindering the success of any centrist let alone any liberal project in this country. Candidly, we are rapidly approaching different entirely preventable disasters and we shouldn’t waste any more time promulgating useless ideas. So, I’m willing to address the skyscraper sized elephant lurking around this discourse, What if Hillary Clinton had won. It’s probably the most frequent hypothetical among liberals, and my read of the alternative is blessed by hindsight but is not informed by omniscience. This is what I believe would’ve happened, it is not exhaustive of everything that could’ve happened.

It’s important to note that Clinton didn’t lose because of insufficient support from the left. In 2008, Clinton did 13 public campaign events for then-candidate Sen. Barack Obama. In 2016, Sen. Bernie Sanders did 41 public campaign events for Clinton during the general election. In 2008, 25% of Clinton primary voters supported Sen. John McCain. In 2016, only 12% of Sanders supporters voted for Trump, meanwhile 13% of Obama’s 2012 voters supported Trump. Clinton lost because she was the most unpopular Democrat to run for President in the history of modern polling and would’ve been the most unpopular candidate period if not for Donald Trump. In terms of ideology, it’s hard to remember now but a critical number of voters wrongly perceived Trump to be more moderate than Clinton. To imagine a world in which Clinton wins the election is not difficult because in spite of her weak electoral performance and rock bottom approval ratings, she very nearly did win. Let’s imagine that James Comey does not release his October letter which hurt Clinton among late deciders and Clinton narrowly wins Michigan, Wisconsin, Pennsylvania, and Florida bringing her to 307 electoral votes. Let’s assume, for Clinton’s sake, that her improved margin extends down ballot which would mean victories in the Pennsylvania and Missouri Senate races and probably an additional 2-3 house seats. This would give her the exact same evenly divided Senate the Biden has but a GOP controlled House. So, what would have happened to Antonin Scalia’s vacant seat?

President Hillary Clinton would submit her nominee to the Senate Judiciary Committee, likely Sri Srinivasan of the D.C. Circuit or Jane Kelly of the 8^th Circuit. The nomination would advance deadlocked from the committee, NeverTrump Republicans like former Sen. Jeff Flake would not adopt their current faux moderate posture without Trump as a foil but would return to the vapid anti-Clinton rhetoric that dominated the 90s. It is likely that Republicans would filibuster this Supreme Court nomination, led perhaps by Sen. Ted Cruz who would now likely be heir-apparent for the 2020 nomination or Sen. Jeff Sessions who instead of being disgraced former Attorney General would be an ideological leader in the GOP Conference. Even without the filibuster, the nomination is in jeopardy as Sen. Manchin is non-committal about supporting the nominee and no GOP Senator wants to cast the deciding vote in favor. Senate Majority Leader Schumer undertakes an effort to abolish the Senate filibuster for Supreme Court nominees, it fails 47-53 with Senators Joe Donnelly, Heidi Heitkamp, and Joe Manchin voting with all Republicans. President Clinton is forced to withdraw her nomination and through a compromise with Mitch McConnell and Chuck Grassley nominates then Gov. Brian Sandoval of Nevada, a “moderate” Republican. He is confirmed with all 50 Democrats and 16 Republicans voting in favor. Justice Anthony Kennedy, a Republican appointed by Reagan, opts not to retire while Democrats control the Senate and Presidency. Justice Ginsburg again postpones retirement, fearing that she too will be replaced by a conservative compromise candidate.

In 2018, Democrats suffer sweeping loses in the midterm elections. Republicans elect Josh Hawley in Missouri, Rick Scott in Florida, Joe Donnelly in Indiana, and Kevin Cramer in North Dakota just like in our reality. However, Republicans also pick up West Virginia and Montana while holding Nevada as Democrats narrowly squeak by in Arizona, Pennsylvania, and Ohio. There is no special election in Minnesota, Democrats don’t force Al Franken to resign and launch at attempt to discredit the MeToo movement as liberal figures like Harvey Weinstein and Kevin Spacey find themselves accused of sexual misconduct. This is done partially to protect the tenuous Democratic majority, but also to discredit renewed criticism of former President Bill Clinton as his connections to child sex-trafficker Jeffrey Epstein become public knowledge during a special counsel investigation lead by Robert Mueller was launched by the House early in the administration. On January 3^rd, Mitch McConnell becomes Senate Majority leader once again with 55 seats. Democrats make gains in the House, although still in the minority they make gains in the suburbs bringing their numbers just above 200.

In 2019, Several Republicans announce their candidacies for President including Sen. Ted Cruz fresh off his double-digit re-election, Governor Nikki Haley, and Sen. Tom Cotton while Speaker Paul Ryan forms an exploratory committee before ultimately deciding against a run. Donald Trump is speculated to be a potential candidate, but instead successfully pivots his failed run for President into a New York Times best-selling novel with accompanying docuseries chronicling his rise to the GOP nomination self-describing as a “populist revolutionary”. Clinton herself faces a spirited primary challenge from Oregon Senator Jeff Merkley (the lone member of the Senate to endorse Sanders in 2016), and he wins the New Hampshire primary as well as a few caucuses, but he is never seriously close to overtaking Clinton and she wraps up the nomination before mid-March. The pandemic still rages across the globe in 2020, in the United States the pandemic is made worse by a severe economic recession. President Clinton and the GOP Congress deadlock on several fronts and settle on a relief package that mirrors the 2009 recovery, however it is not passed until May leaving millions scrambling to compete for resources from overwhelmed nonprofits. Infections are lower than our current reality because Clinton never disempowers the CDC and is prepared for a pandemic level event, but anti-lockdown activity begins earlier and is more violent as people are animated not just by anti-science conspiracy but also anti-Clinton sentiment. In September, Ruth Bader Ginsburg dies, and Republicans hold open her seat for the duration of the 2020 Election. President Clinton is likely defeated, not since the election of 1820 have there been 2 successive 2 term presidents of the same political party. If Clinton did win re-election, it’s hard to imagine Democrats having better midterm prospects in 2022 than what they face today. When she does lose, Republicans appoint Attorney General Pam Bondi of Florida or perhaps law professor Amy Coney Barrett. Justice Anthony Kennedy retires shortly thereafter, and Judge Brett Kavanaugh is elevated to his seat. Roe and Casey are functionally though not explicitly overruled in a 5-4 decision, with Sandoval joining the liberal minority in dissent.

Seeing as a Clinton victory might not have been enough to avoid our current reality, what would’ve needed to happen to avoid this nightmare? You don’t have to get into butterfly effect level science fiction or have had psychic super power to be able to imagine how things could’ve gone differently. If:

1. At any point between 2009 and 2015, if Justice Ruth Bader Ginsburg had opted to retire, abortion rights, voting rights, labor rights, and many civil liberties would not be facing near certain annihilation. In 2013, Ginsburg had battled cancer twice by the age of 80 and the political environment in Washington was increasingly polarized. It was clear to contemporary writers that should Republicans capture the Senate, something they were heavily favored to do given the history of midterm elections, because of rising partisanship it would be unlikely that a liberal successor could be confirmed. At the time, the balance of the court was 3 hard right conservatives, 2 center-right conservatives, and 4 liberals. The few liberal victories of the 21^st century were generally 5-4 decisions, and the disappearance of any justice would have a dramatic impact on constitutional law. Furthermore, the disappearance of a liberal justice would of course mean a hard right turn in the court at least until a conservative vacancy appeared. Ginsburg, understanding the stakes of her decision opted not to retire. When she died, as an attempt to shield her legacy perhaps realizing the disastrous effect of her decision to not retire, sheepishly relayed a message that she knew would not be honored. Ginsburg had no reason to believe her replacement would not be a woman, as President Obama had nominated both Elena Kagan and Sonia Sotomayor to the Supreme Court. Ginsburg had no reason to believe that her replacement would be less liberal, as Sotomayor actually disagreed more with Kavanaugh, Thomas, Alito, and Roberts than Ginsburg did in the 2019 term. There was no reason for Ginsburg to do what she did, and that decision more than anything else is responsible for this moment.
2. In 2014 and 2010, Democrats lost several close Senate races and spent tens of millions of dollars on blowout losing races. If the party had decided to abandon clear losers and directed that spending elsewhere, Democrats might’ve had a Senate majority in 2016 when Scalia died. Which would’ve meant a liberal Supreme Court, not just a not as far right one, but a genuine liberal majority which hasn’t existed in generations. Let’s look at the 2010 races, Sen. Blanche Lincoln (AR-D) spent $12 million for 37% of the vote, Gov. Charlie Crist (FL-I) and Rep. Kendrick Meek (FL-D) spent a collective $23 million to receive 29.7% and 20.2% of the vote respectively, and Robin Carnahan (MO-D) spent $10 million to receive 40.6% of the vote. Meanwhile Democratic Senate candidates in Illinois and Pennsylvania failed by less than 2% of the vote. What might an extra $45 million split between the two of them have meant? So, what about 2014? Mark Pryor (AR-D) spent $14 million to receive 39% of the vote and Alison Lundergan Grimes spent $18 million to receive 41% of the vote. Meanwhile, Democrats lost Alaska, Colorado, and North Carolina by less the 2.3%. If those races had broken Democrats way, they would’ve certainly had enough votes to Supreme Court Justice. Unfortunately, this pattern has only intensified as Democrats burned a whopping $250 million dollars to be beaten by double digits in Kentucky, South Carolina, and Alabama while losing several close House races.
3. In 2009, Democrats could’ve attempted to codify Roe. For 3 months, Democrats had a filibuster proof majority and then just shy of it the rest of that congressional term. There were likely enough Pro-Choice Republicans to overcome the objections of Anti-Choice Democrats, and even if compromise legislation had to be crafted it is a near certainty that it would’ve been better than our current system which has allowed states like Texas and Mississippi to ban abortion without outright doing so. It certainly would’ve been better than allowing a conservative court to decide the fate of abortion. But the fault on this one doesn’t lay solely with Harry Reid, but with President Barack Obama. In 2007, he said at a speech to Planned Parenthood that the first thing he’d do as President was sign the “Freedom of Choice Act” which would’ve codified Roe. Before he’d been President 100 days, it had been completely dropped from his agenda and he said of the bill that it was “not my highest legislative priority” and apparently not a priority at all.

That leaves just one burning question, what can we do now? Some of you will be tempted to say “vote!” or some variation of “elect more Democrats”. I’d like you to just consider this, for a moment. In 2018, more than half of Americans could not name a single Supreme Court Justice. Although most Americans (71%) blame Vladimir Putin and Oil companies (68%) for the rising cost of oil, however a majority also blame President Biden (51%) and Democratic Party policies (52%). Most voters don’t perceive politics through the lens of obsessive partisan observers, and often are more likely to see correlations and be unaware of longer-term trends. This is all to say that there is a critical mass of voters who will say “Why should I be convinced that my support has mattered or will matter? I’ve always voted for Democrats, and they just beat Trump so why is this happening.” If Abortion rights disappear while Democrats control congress and the Presidency, the fine details will be lost and I don’t think it’s logical to assume that the response among voters will be a Democratic surge. Although, you should support candidates who support abortion rights when given the opportunity. It’s important to keep protesting, donate to abortion funds to support people who are going to have trouble finding access, and testify against state efforts to criminalize abortion.  But beyond that, what else is there? Not much that isn’t 10 years too late. What’s really important is for the left to develop a sense of our place of history and work towards a long-term vision for society. The right knows who they are and where they are going and have been working for it since the New Deal. We must have that same determination and will or there will come a day when we wake up in a country that we do not recognize as our own. We may already be there.

The post Would President Hillary Clinton have saved Roe? Probably Not appeared first on Occasional Planet.

The Political Playbook of Tuesday, January 25, 2022 includes a lengthy description of how Senate Majority Leader Chuck Schumer’s leadership strategy has led to considerable simmering among Democrats.

Reporters Rachel Bade and Tara Palmeri spoke with a half-dozen Democratic staffers in both houses of Congress Monday night and heard frustration with how Schumer and other Democratic leaders are treating Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ).

Apparently, Manchin continues to be furious at how he has been treated. Other Democrats are now upset with Schumer, House Speaker Nancy Pelosi and others for having stated the obvious. For either the Build Back Better Act or the Voting Rights Acts to have passed, the votes of both Manchin and Sinema were needed. Obviously, that didn’t happen with the voting rights proposals and a Senate vote on BBB has been indefinitely postponed because of a lack of affirmative votes.

In an earlier iteration of Manchin saying that he would not vote to change the filibuster rule, he implied on Fox News Sunday that the Biden Administration was not working respectfully enough with him. It may indeed be possible that some staff members in the White House were expressing their exasperation with Manchin either to him directly or to outside sources.

Manchin and Sinema are entitled to view issues differently than the other 48 members of the Senate Democratic caucus. What they don’t have a right to do is to get upset with other Democrats who have increasingly been frustrated with them.

Had Manchin and Sinema joined the other 48:

1. Two voting rights bills would have passed and the discriminatory election and voting laws that Republicans have passed in nineteen states would either be negated, or involved in court cases, the types of which the federal government has traditionally won.
2. The Build Back Better Act would be law meaning child tax credits would be expanded, there would be child care subsidies, free universal preschool, health care subsidies, paid family leave and a host of other provisions that would help families and bring the American economic and social safety web closer to those in other industrial countries.
3. President Biden’s popularity would be much higher and the prospects for Democrats in the 2022 and 2024 elections would be much better.

Who could blame Democrats for being upset that these two senators have greatly damaged their party politically, and deprived the country of perhaps the two most necessary pieces of legislation currently being considered?

Manchin could whine and pout about how he is being treated, but other Democrats were not entitled to express frustration over how two senators are using antiquated rules to hold the country hostage.

Strictly speaking, the reporting in of Bade and Palmeri is accurate. Democrats other than Manchin and Sinema are expressing their frustration with other Democrats. But the reporting is not in context, with inclusion of how Manchin and Sinema set off a chain of bad feelings within the party.

It seems that the two wayward Democratic senators have the same privilege as Mitch McConnell and essentially the entire Republican caucus. They can speak of hurt feelings as if they are righteous victims and have been unjustly attacked, while other Democrats cannot say “ouch” for fear of being called wimps. The press needs to take a leading role in not perpetuating this unfair and false equivalency.

The post Who on Capitol Hill is Allowed to Whine appeared first on Occasional Planet.

For the past year, I’ve sat through a lot of anxious liberal pearl clutching commentary about the danger of a stolen Presidential election. “This time was practice, next time they’ll get away with it” or some variation of this is usually what I run into the most. What it ignores is the fact that we don’t have to wonder what would happen if the right decided to steal a Presidential election in this country. It literally already happened, just over 20 years ago when George W. Bush was selected President. That year Bush and Vice President Al Gore contested the perpetual battleground state of Florida and though many years have passed since, the details of that campaign are still shocking to many. The Governor of Florida was John Ellis Bush (Jeb!), the brother of the Republican candidate. The Secretary of State, Florida’s Chief Election Official, was Katherine Harris who also served as campaign surrogate for Bush. Then of course there was a conveniently badly designed ballot that likely caused perhaps more than 1,000 accidental votes for Pat Buchanan that were meant for Al Gore.

This should’ve been an easy decision for the Supreme Court. The recount should have continued, and the final results honored, which several audits after the fact suggested a narrow Gore victory. However, the court stopped the recount and Bush became President not by his 537 vote margin in Florida but by a 1 vote margin in the Supreme Court. The justices who eventually sided with Bush in Bush v. Gore were either appointed by Bush’s father or another Republican President. George W. Bush went on to launch an illegal war in Iraq that killed hundreds of thousands of civilians and displaced millions more.

This week, the Supreme Court will hear arguments in Whole Women’s Health v. Jackson. This will almost inevitably decide the fate of Roe v. Wade, likely ending with the partial or complete overturning of that decision. Legal abortion will not be the only lightning rod the court touches in the next term, and if the conservative bona fides of the majority are to be believed then we are about to enter a radically more conservative judicial environment than at any point in living memory. However, that doesn’t need to be true, the solution is right in front of us: Expand the Supreme Court.

This has largely disappeared from political discourse, but it is an idea worth returning to, especially when one considers that the most prominent argument of the opposition doesn’t hold up to scrutiny.

“Republicans will pack the Court when they win again.”

This underestimates the difficulty Republicans might have winning elections in a world with full enforcement of the voting rights act, no Citizens United, and the prohibition of hyper partisan redistricting. This is a foregone conclusion in an expanded Supreme Court with a liberal majority. Can Republicans win an election on a level playing field? Not with their current coalition, in fact expanding the Supreme Court may be the only way to get the GOP to rethink its Trump orientation which has never achieved majority support. Some people might argue that there would be voter backlash to expanding the court, I would expect as much as well. However, there would perhaps be a more engaged and less apathetic voter base for Democrats, if they saw the party leave everything on the field to defend the progressive gains of the last half century instead of accepting defeat.

Furthermore, if the Democrats add 6 seats to achieve a 9-6 majority and Republicans add 4 more to get a 10-9 majority that’s a good thing. If your goal is fewer knee-jerk reactionary decisions, more judges is better. If a majority decision needs to find 10 votes instead of 5, they necessarily will end up a little more moderate to hold the coalition together. We saw this happen in the 5-4 court where a number of decisions had to become more moderate for Chief Justice Roberts or Justice Kennedy to deliver the swing vote.

There’s also the question of “So what if they do?”. What if Republicans win, and invalidate the changes to the court and repack it? What if the court becomes a political tool? I only have two questions, how is a 10-9 conservative majority any worse than a 6-3 one and isn’t the Court already a plainly political tool? Our current reality is we lose, a lot, on issues of monumental importance. Institutionally we are fucked, to say it politely, by the Senate. There is a bias built in to favor rural representation and Democrats, partly due to their own failures and partly due to trends outside of their control, will not be competitive with white rural voters for decades save for a major realignment. Republicans appear to be at worst even money to recapture both chambers of Congress next November. Should they retake the Senate, it is more likely than not that they would expand that margin in 2024 when West Virginia, Ohio, and Montana will have their Democratic Senators for the first time face the high turnout Republican electorate of a Presidential year. This could mean a decade, but perhaps longer, of Republican dominance in Congress. If we don’t level the playing field now, the chance could be lost.

I’d refer anyone to the legal scholar Erwin Chemerinsky who wrote “The Case Against the Supreme Court”. He has said,

“Throughout history the court has overwhelmingly favored corporate power over employees, consumers, and the public, and has favored government power over individuals’ rights…I think, too, that the Court’s role has never been clearly enough defined in terms of enforcing the Constitution, protecting minorities, resisting the passions of the majority in times of crisis.”

The Warren Court was an aberration, it is not a coincidence that the vast majority of decisions that we have held up as shining examples of the wisdom of American jurisprudence are from that era. The Court traditionally has not been a friend to democracy, civil liberties, human rights, or really in a number of ways the constitution. This is all to say, the Court as an institution is something badly in need of fixing and it’s shocking that it hasn’t happened sooner.

Of course, this conversation is purely academic. There are not enough votes in the Senate to give the elderly access to dental care, it’s too expensive and after all there is a war machine that needs financing. So, it’s doubtful that there’s enough votes to even have a serious discussion on Court expansion. It’s not just Joe Manchin, it’s also President Biden and most third way types in Congress who balk at expanding the Court. Therefore, we remain on this roller coaster with the operator seemingly unaware that the ride has no brakes and no track after the fall.

The post Expand the Court appeared first on Occasional Planet.

There once was a time when most Americans revered the Constitution. The charter outlined how we mortals  structured our government so that reason and fairness were two of the guiding principles. But thanks to Donald Trump and the current generation of Republicans, our governmental structure no longer has clear definition. The rules governing what we can do are suddenly whimsical and chaotic. Where there used to be rhyme and reason, now we have fragmentation and dysfunction. Republican presidents, legislatures and judges have replaced the discretion with how we interpret the Constitution with blatant self-interest.

The reason is that Trump and his followers have little respect for preserving and strengthening the institutions and procedures that for so long have protected our democracy. If the rules do not provide most Republicans with unfair advantages, they rebel against the rules and try to change them, throwing caution to the wind.

The U.S. Constitution outlines a few basic principles that control how government in America is supposed to work. Just for quick review, here are the most fundamental of these.

1. Checks and balances. Each level of government has three branches: (a) executive, (b) legislative, and (c) judicial.
2. Levels of government. We have our national government, the federal government, the fifty states, and tens of thousands of local governments. Presumably the states are the most powerful because they came first. But the federal government has certain clear rights over the states, such as control of interstate commerce or the power to print money and control banking.

Local governments are closest to we the people and that gives the localities certain inherent advantages. For instance, public schools are controlled by local communities. Yet, the states give charters to local governments including school districts and thus the states can dictate a great deal about how we live, work and play.

Historically, the constitution has helped bring order to how our legislators pass laws and executives enforce the laws. But deciding who makes which rules can be extremely complicated. For two centuries, our constitution was helped by a strong measure of common sense among the electorate. An informed electorate with belief in the Constitution helped in determining which branches of government, or which levels of government (federal, state, or local) would make which decisions, and what would be the parameters of those choices.

Now we are finding that all levels and entities of government are wildly scrambling to advance their own power, regardless of the principles of the Constitution or historical precedent. In the world of the truly absurd, we currently find that the governor of Florida (Ron DeSantis) is telling public school districts that they cannot mandate students and teachers to wear masks to school to provide more protection from COVID-19. This is the kind of problem that historically has been solved by agreements largely forged through precedent and a commitment to promoting the common good. A school board would have control over the day-to-day operations of the school, and currently almost all local boards in the United States want to provide as much safety as possible for students, teachers, administrators and other staff.

But Republicans like DeSantis want to maximize the power of their offices and positions, showing little regard for America’s historical relationships branches and levels of government. Our system is now confusing, unpredictable, arbitrary, and capricious.

The answers to the “Who Decides” questions are not easy. The Trump era can show us how far off any beaten path we can go with these questions. It is enough to make your head spin. But that sort of dizziness has been avoided for most of the lifespan of our country because there were sound rules in our Constitution, and behavioral norms kept anyone from pulling DeSantis tricks.

Federalism was a brilliant idea conceived by our founders. It helps us determine publicly beneficial answers to a myriad of questions about “Who Decides.” But it is based on good will among citizens of different political persuasions. We will never recover from the damage of Donald Trump and his legions until they recognize the importance of governing by the rules that have provided us with a large measure of stability for most of the past two and a half centuries. Regrettably, the record of politicians gone wild in acknowledging their mistakes and reinstating the basic principles of governance is not good.

Progressives will need to reach out to others to try to forge relations built on reason and concern for the common good.

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In 2021, as summer ebbs into fall, Democrats are concerned with a number of issues, but perhaps most importantly, abortion. It has become a wildcard issue because the Supreme Court has rendered a decision regarding it that neither is supreme nor courtly.

Bullies and cowards often travel together, and that is precisely how Republicans have acted regarding the latest legislation from the hallowed halls of the capitol of Texas. The Lone Star state has enacted the strictest abortion law in the land. Essentially it outlaws any abortion that would be performed approximately six weeks following conception. That’s the bullying part – exercising arbitrary and capricious power to encroach on a basic human right. And, of course, the Republicans chose to place far more restraints on the women of Texas rather than the men. In case you have forgotten, men don’t need abortions.

The cowardice angle is that the state is relieved of any enforcement responsibilities. Rather than have state authorities monitor abortion clinics for alleged crimes, the state “farms out” responsibility for enforcement to the citizens of Texas, or for that matter, the citizens of any other state who might happen to be in Texas. They are empowered to sue any woman in Texas who chooses to have a prohibited abortion.

The “infraction” is not settled in criminal court; rather in civil court where the “apprehender” or bounty hunter can seek to recover as much as $10,000 from a fine levied on the woman seeking the abortion. In further acts of cowardice, the law states that not only can a woman receiving an abortion be sued, but any other person who is “complicit” with her can as well. This could be the receptionist at the abortion clinic, the Uber driver who gives her a lift to the clinic, and any healthcare professional who works or volunteers at the clinic.

Indeed, Americans live in a strange country when the supreme court of the land, operating under the jurisdiction of the world’s oldest and presumed fairest constitution, cannot find one, much less dozens of reasons, to rule this sham of a law unconstitutional.

Almost all conservatives vehemently oppose abortion. Is there anything that draws a similar opposition from progressives?

How about gun control? Just as conservatives see abortion as an issue if life, progressives see unfettered gun rights as a matter of life, and death. Ever since 1973, when abortion became legal in the United States in the Roe v. Wade ruling, conservatives have been successful at chipping away at abortion rights to the point where now in Texas, over 85% of what were legal abortions are now against the law. Dozens of other states are fashioning similarly draconian laws.

During that same forty-eight-year period of time since Roe v. Wade, progressives have been trying to chip away at gun rights in the interest of gun safety. In 1973, Richard Nixon was still hanging on to his presidency with its law and order mantra. The rate of violent crime in the United States was growing rapidly. Conservatives favored stricter laws against gun crimes. Some progressives favored stronger penalties as well, but most wanted to deal with the root of the problem, the presence of guns, legal and illegal, on the streets and in the homes of Americans.

How much progress have progressives made in reducing the number and the of guns in America and the power of the types that are legally permitted? The answer is virtually none. In 1994, with Bill Clinton as president, the Democratic Congress passed a ten-year ban with the Public Safety and Recreational Firearms Use Protection Act. It did outlaw some powerful weapons, but there was the sunset provision, limiting the restrictions to ten years before the law had to be renewed.

Conservatives were outraged that the bill passed. Less than two months after the bill became law, the first nail was hammered into its coffin as Newt Gingrich and the conservative Republicans took over Congress. By the time that the ten-year life of the bill was over in 2004, Republican George W. Bush was president, and he was in a position to veto any extension of the law. Since that period, gun laws have not been strengthened; they have been weakened.

So, suppose that progressives wanted to counter the strength of guns in America in a fashion similar to what Republicans have done with abortion. If there was to be symmetry in their strategy to what Republicans did, they would choose to not have any have any government agencies or officials involved in enforcing the laws.

Instead, they would set up a bounty system similar to what Texas Republicans have done to curtail abortions. Progressives would pass a law that would enable citizens to monitor the presence of weapons, particularly assault weapons, in the streets, workplaces, schools and homes of America.

That way, progressives could try to be like conservatives and bully their foes. They could establish un-armed posses to travel throughout America, to wherever guns are present. They could courteously go to gun stores, gun shows, bars, gang hideouts and wherever else there might be high concentrations of guns and please ask the owners (legal or illegal) to surrender their weapons in return for a summons to appear in court. This method by progressives to deal with guns would have a parallel construction to how conservatives in Texas are currently dealing with abortions.

Conservatives would be pleased with these parallel laws. All that they would have to do would be to take a picture of a woman about to have an abortion, along with anyone assisting her, and issue a warrant for their arrest. They show up in court and their work is done and they are richer.

Progressives would simply take pictures of people with guns and find a way to serve a warrant on the gun owners and be sure to say ‘please’ when they do so.

This is what conservatives call fair. They can act like bullies and prevent a woman from having control of her body while the other side must forcefully try to confiscate powerful firearms.

Yes, the absurdity is very clear to progressives; not at all to conservatives. This is why conservatives are winning so many of the battles these days. They get to use firearms as their weapon of choice; progressives use a basic right on human reproduction. If you can’t see a power imbalance in this conundrum, look again.

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Conventional wisdom says that “in polite company,” we don’t talk about sex, politics, or religion. Of the three, sex is clearly the least comfortable topic to broach.

You see, sex is a ‘hot’ topic; it’s erotic. Some may regard sex as joy; others regard it with shame; and still others with no apparent emotion. While nearly everyone has an opinion about it that does not mean that all are willing to engage in open conversation about sex.

This problem is particularly difficult with the topic of abortion. When abortion is brought up, what is missing is the honesty in the conversation – the honesty about how and why a woman becomes pregnant; what her thinking was before, during and after the act, and how the impregnator (the man) can frequently walk away from an act in which he was either an aggressor or a collaborator or some combination of the two.

Under the best of circumstances, the sex act is a consensual on the part of both individuals. At the time, the two may or may not have desired to pro-create. Under the best of circumstances, this is how the human race commits acts of love and carries on its existence from generation to generation.

But it doesn’t always evolve that way. There are numerous ways for complications or unfortunate circumstances to develop. Following the intercourse, the couple may decide that they are not in love and no longer want to be joint parents to a child.

If both believe in a traditional nuclear family, then the change in their relationship may cause one or both to decide that now is not a good time to give birth to a child. This can be particularly so with the woman who bears major responsibility for the pregnancy and the subsequent child-rearing.

Another dynamic may also be that there are other life changes for one or both progenitors. One is diagnosed with an illness or sustains an injury. It clearly is not a good time to bring a child into the world.

It may also be that as the adults’ lives evolve during the months following the pregnancy, that one or both parties decide that they are not ready to be parents; that they feel a greater compulsion now to pursue a career or avocation. This may seem crass to a strict pro-life advocate, but it is among the myriad of reasons why one or both parties to a pregnancy may want an abortion at a difficult time.

Perhaps the most likely cause of one or both parents not wanting to carry a pregnancy to term is that the process started off informally and then morphed into a “we just want to have a good time” occasion and little or no thought was given to a possible pregnancy during the act of intercourse.

The arguments in favor of abortion for women who have been victims of rape or incest are so compelling that it is hard to fathom why anyone would oppose them. It is often said that many conservatives are mean-spirited; their opposition to abortion following a rape or incest adds clear evidence to that assertion.

All of these reasons are tried and true parts of the ongoing human experience. As you read this, similar scenarios to the ones described above are happening all around the globe, and there is no stopping them.

Because sex is viewed by most as either ‘hot’ or ‘cold,’ most people have reasons to not discuss it in so-called polite company. But it’s too tempting to simply ignore. So rather than pretend that it does not exist, most of us, and especially the news media, either ignore it, or talk about it in code. This is something in which conservatives are exceptionally skilled. They frame issues in a way that do not use literal definitions. Instead, that they are cloaked in verbiage that assuages those conservatives who think that the only way to reference it is to disguise it. They talk about it as life, and what could be more pure. But their big fallacy is that they totally ignore the life of the mother, and the father. The force of the conservatives is so strong that it essentially inundates the mainstream media as well.

Conservatives will continue to dominate the abortion issue and wreak tremendous damage on the civil liberties and economic well-being of non-conservatives. The alternative is for progressives to discuss abortion and sex at the same time, and describe how abortion policy without a realization that “sex happens” will never reflect reality, empathy, and respect for basic civil liberties. Come on, progressives. News organizations now let us use the ‘F’ word as an expletive; why can’t we talk about it for what it really means. It will greatly help the whole country better come to terms with the abortion issue and make more logical and empathetic decisions.

The post Progressives need to move beyond their fear of talking about abortion appeared first on Occasional Planet.

 A quick review of what the 1st Amendment does and doesn’t do:

The baker/gay couple/wedding cake analogy

Pretend you’re a bar owner

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Here’s a question for you: “Do introverts commit acts of violence? The only way to try to answer this question is to acknowledge that at least one premise of the statement is probably faulty. It is unlikely that there are individuals who are introverts 100% of the time. It’s more likely that we are all live on the Introvert / Extrovert continuum and depending on the situation we are in; we slide to different points on the scale.

But there clearly are people who spend more time to the left of the center-point (Ambiverts), and ones who spend more times to the right. So, for those people who live more to the left on this continuum (in the comfort zone of being an introvert), it seems likely that they would avoid violence. They would not be the people on the streets of America’s cities who are smashing windows, looting, and possibly even scuffling with law enforcement officers. In fact, they may be far less likely to even be on the street protesting.

To march, picket and protest, someone has to feel pretty confident about going into crowds and asserting oneself. My hunch is that most introverts would much rather watch what is happening through the digital pictures from their televisions, computers, or even phones. But that does not mean that introverts cannot, or do not, engage in actions promoting social change.

Many introverts are frequently in thought about how to change our society for the better. They often put their ideas to paper and provide us with clear purpose and direction as we work to help society clean up its ailments.

One could argue that societal change happens best when there is either formal or informal collaboration between those who are in a frequent state of reflection about what is happening in our world, and those who comfortably take to the streets and other public places to let the world know what they think and the intensity of their beliefs.

But this picture of the thoughtful non-violent introverts has the requisite exceptions to the rule. One of the quietest, most secluded and reclusive individuals in modern American history engaged in over twenty acts of horrendous violence. His name is Ted Kaczynski; also known as the Unabomber.  Timothy McVeigh, who blew up the Federal Building in Oklahoma City in 1995 also had many attributes of an introvert.

Maybe if we eliminate from our universe of introverts those who harbor extreme amounts of anger and hate, then we can more clearly state that introverts tend to be non-violent. But in all fairness, we could say the same about extroverts.

It’s all complicated and I certainly do not have clear answers. But, it’s something that I’m pondering now. Can those of us who spend considerable time functioning as introverts, be helpful voices for moderation when are streets are rioting? Can we also be leaders in promoting progressive solutions to problems that send so many others to the streets? As Donald Trump shows us every day, those of us who believe in rational thinking and embrace empathy must take whatever non-violent action we can to help solve America’s and the world’s problems.

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