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.

You probably did not think that a key reason why the current Supreme Court is so out of whack with much of America is because of gerrymandering. This is so because the makeup of every Court is determined by the two other gerrymandered branches of government, the executive and legislative.

Twelve of the last fifteen justices have been appointed by Republican presidents, and that is not an accident. With our Constitution, it is virtually impossible not to have partisan Supreme Courts when we choose our presidents and legislators in ways that are mired in a deep gerrymandering pie, or cesspool.

Here’s how it works:

The U.S. Senate is perhaps the most insidious form of gerrymandering that we have. A good working definition of gerrymandering from Merriam-Webster is “the practice of dividing or arranging a territorial unit into election districts in a way that gives one political party an unfair advantage in elections.” At the time that the American constitution was created, there were no political parties. But there were political interests. The most significant of these interests was what powers would individual states have as opposed to the federal government.

For example, who would be responsible for determining whether a road should be built, or whether it would be legal for a sixteen-year-old to drink whiskey? Who would be able to levy taxes, or even tariffs? At the time that the constitution was being written, there were two key interests within the states that created the groundwork for gerrymandering:

1. The smaller states such as Rhode Island or Delaware did not want to be overpowered at the federal level by larger ones such as New York or Virginia.
2. The states where slavery was legal and was commonly used wanted to have equal power to the states that did not have slavery.

Many of the founding fathers were leery of direct democracy, meaning direct votes by the people. In order to prevent runaway “popular democracy,” the founders created a Senate to go along with the House of Representatives in the Congress. The Senate was undemocratic in two ways, both of which impacted the Supreme Court.

1. Initially, Senators were chosen by state legislatures, not the people. This would be a way of better ensuring that the interests of the states, as opposed to the people, were represented in the Senate. This was clearly undemocratic, and in 1917, the 17^th Amendment was passed, allowing the people to vote for their Senators. But at that time, “the people” were essentially only white males.
2. Each state has two senators. That ensures that there is equal representation among all the states in the Senate. At the same time, it ensures that at least one house of Congress does not include equal representation of the people. For example, California has a population of nearly 40 million people while Wyoming has less than 600 thousand. For each person in Wyoming, there are over 60 in California. What that means in the Senate is that each person in Wyoming has as much power as 60 people in California. That is terribly unfair, and it means that states like Wyoming, the Dakotas, Montana, Nebraska, etc. have far more power in the Senate than states like California, Texas and New York. The same is true for southern states such as Mississippi, Alabama and South Carolina which are relatively small by population. Additionally, these states are no longer politically competitive. Conservative Republicans win virtually all state-wide elections including for the Senators.

Right now, the U.S. Senate is evenly divided between Democrats and Republicans. But Democratic Senators represent nearly 57% of the population, whereas Republican Senators represent around 43%. If the Senate was democratic, the Democrats would have a large majority. But in today’s real world the Democrats will probably lose seats in the 2022 mid-term election and once again be a minority.

We should also point out that the House of Representatives is gerrymandered in a different way. Take Missouri for example. It has eight Congressional seats. Recently, the state has voted between 50% – 60% Republican. Even at 60%, Republicans should get only five of the seats. However, they get six and some tried to get them seven. Why does it come out this way?

It is because in Missouri the districts are drawn by the state legislature. The Missouri General Assembly is currently veto-proof Republican. What the legislature has done is to draw two “minority majority” districts. This means districts in which some minority constitutes a majority of the voters. In Missouri, it is African-Americans. One district is in the eastern part of the state, St. Louis, and the other in the western part, Kansas City. None of the other districts is competitive.

Similar to the legislative branch, the executive (presidency) is deeply influenced by gerrymandering. The way in which the founding fathers took care of that was by creating the Electoral College. The E.C. is not really a college. It is a barely known organization that only exists every four years, when there is a presidential election. The number of representatives that each state has in the E.C. is somewhat based on population, but not entirely. What is important to know is that when the Electoral College works properly, the electors from each state vote for the candidate who won the popular vote in that state. In other words, the electors in Alabama vote for whomever carried the state and the electors in California vote for whomever won that state.

Where it gets undemocratic is let’s suppose that Candidate A carries Alabama by one million votes and loses California by a 400,000 votes. You might think that Candidate A would be ahead at that point, because she has 600,000 more votes than Candidate ‘B.’ But with the Electoral College, Candidate ‘B’ is ahead with 55 Electoral Votes from California as opposed to Candidate ‘B’ who has the 9 Electoral Votes from Alabama.

The fact that a candidate can lose the popular vote and still be elected president through the E.C. is not just hypothetical. It has happened five times in our history. The two most recent are the two most consequential. In 2000, Democrat Al Gore won the popular vote from George Bush by over a half million votes. However, Bush won the Electoral vote when the Supreme Court made a decision that gave Bush Florida’s electoral votes. That would not have mattered if the decision had been made by the popular vote.

In 2016, Hillary Clinton defeated Donald Trump by more than three million votes. However, Trump narrowly won “battleground states” such as Pennsylvania, Michigan and Wisconsin and that propelled him to an Electoral victory.

It’s possible that two of our worst presidents ever were elected by the Electoral College than the popular vote. These two presidents are also responsible for five of the current six conservatives on the Supreme Court. Bush nominated John Roberts and Samuel Alito; Trump nominated Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

This is how the Supreme Court became impacted by gerrymandering. Without a gerrymandered presidency and a gerrymandered Senate, the Supreme Court would have been more balanced and reflective of the values of the American people.

To make matters worse, the Supreme Court itself has recently refused to overturn the creation of gerrymandered districts by the states.

The political ramifications of the gerrymandering dynamics is that Republicans are helped in all three branches. Theoretically, the three branches of government are supposed to restrain one another through a system of checks and balances. But that does not work when all three branches are dominated by one party, and that particular party is intent on thoroughly dominating government and extending very few levers of power to minority parties.

How can this change? At the moment, it’s difficult to conceive. Trump Republicans have a number of plans to further a radical right agenda in America. For our government to become more balanced it will require challenging victories by non-Republicans in congressional and presidential races. Stay tuned to see if that happens.

The post The Gerrymandering Virus – It’s Everywhere! appeared first on Occasional Planet.

(* Entities and characters alluded to here are entirely fictional, and are here imagined for entertainment purposes only. Any resemblance to actual events or persons alive or dead is entirely coincidental.)

In a flurry of activity, the US Taliban, once known as the Supreme Court of Our Lands, has announced another in of its nation-altering faith-based decisions. Rock and roll will no longer be tolerated.

Rock and roll has been on shaky ground ever since Colonel Parker signed Elvis back in the mid-1950’s. For context, see Baz Luhrmann’s ELVIS, currently in cinemas. Elvis shook his hips and the country went bananas.

Chuck Berry and Little Richard, back in the day, pushed those boundaries further. Would it be possible to be black and equal with Elvis, under the law, they posited?

The country’s highest courts at the time didn’t deem it the moment to weigh in on rock and roll, just yet. There was enough going on with the assassination of President Kennedy and the ever-opening chasm in our national schism called the Vietnam War.

Our courts’ decisions then, or non-decisions in fact, meant that we had to bear with Elvis through a decline in his powers until he became a pastiche of what he once was. Over time, his bellbottoms grew wider, his sideburns broader, his metal-studded belts wider and his waist – well broader again. Under Elvis’s reign, rock and roll took a tumble. And so the superstar Las Vegas show came to be.

On the other hand, Elvis’s decline opened the door for the British Invasion of American popular music. The Beatles came in, the Rolling Stones came in, Gerry and the Pacemakers came in. (Is it Pacemakers or Peacemakers – YouTube is still divided.)

The Supreme Court of our Lands hadn’t figured on that, truly.

Suddenly, unexpectedly, Detroit loomed large in popular music. We had the Supremes, the Four Tops, the Temptations, Smokey Robinson, Martha and the Vandellas, Gladys Knight & The Pips and Marvin Gaye.

Our top courts eyed intervention with this large presence of Motown in our popular imagination. It was tricky there for a while until, with the arrival of Lionel Richie, the danger subsided.

Lionel Richie gave the Talibanists here at home time to regroup.

And so, for decades, popular music enthusiasts in the US thought they were home scot-free. Rock and roll morphed and splintered, and gave rise to an enormous myriad of forms, southern rock, country rock, disco, house, heavy metal, soft rock, independent, hiphop, rap, electronic … well, the whole shebang of popular music that has been our life since the boy from Tupelo’s first appearance on Ed Sullivan’s influential TV music show way back when.

Turns out, in the past decades, we were lulled into thinking that rock and roll was our right.

We rocked, bopped and discoed to the Doors, Bruce Springstein, John Melenkamp, the imported Rolling Stones, David Bowie (another import,) Bon Jovi, Prince, Carlos Santana, Donna Summer, Sister Sledge, Gloria Gaynor, Michael Jackson and the Village People.

We could never have enough music in our lives, we thought. Little did we know that we were, in fact, living in a rock and roll golden age.

Ominously, unnoticed, a misogynist real-estate upstart with an oversized ego announced the creation of a presidential exploratory committee on Larry King live in October 1999. How many rock and rollers were watching Larry King in October of that year? Not many.

The real-estate upstart-in-question never dreamed of winning the presidential election. But surely, he thought, he could attract attention to his business ventures with a populist-based political message that went something along the line of Drain the Bayou. At his first attempt at the presidency, nothing. On his second try, bingo!

Whoever could have imagined that this bloated egocentric parvenu would one day mean the end of rock and roll?

Somehow, this nouveau riche wannbe convinced enough people to vote for him, and he was elected the president of the land.

Once President, he was confused, having never anticipating winning, unsure of his charge, and wide open to the influence of his followers on the far right. Under their direction, he – through another twist of fate – came to be be in a position to load the Supreme Court of Our Lands with faith-based fellow adherents. Faith-based fellow adherents is not entirely accurate as our US, democratically elected Supreme Ruler had no principles at all, as far as could be noted.

Thus, we – the United States – left the middle road behind.

And here we are.

Just this past week, we allowed our newly imposed Supreme Leader’s chosen religious leaders to rule that we would no longer have rock and roll in our lives.

I guess our moment of pseudo-freedom was good while it lasted.

All of those songs erased in an instance from YouTube is shocking. The immediate disappearance of rock and roll from our playlists is unprecedented. Now, it appears that we will be prosecuted if we attempt to cross state lines to hear the rock and roll that was once embedded in our lives. Nashville is closing its doors. L.A. will no longer be L.A. without its music industry.

Without precedent, rock and roll is now, at seemingly just a moment’s notice, gone from our lives, Our lives are so hugely different from what they were just weeks ago that it’s hard to fathom. Will we ever return to what we once were? As of this writing, that is completely unsure. Will we ever be able to hear a rock and roll song again? As of this writing, I honestly don’t know.

The post In life-altering decision for the nation, the US Taliban bans rock and roll * appeared first on Occasional Planet.

Mr. President,

Every day the President is confronted with major issues that affect the life and prosperity of our nation and our planet. The decisions that the President makes often are collaborative with input needed from many players and the Constitution provides that some decisions require consent from another branch of government. However, there are moments when the decision belongs to the President and the President alone and these issues are often of the greatest consequence and shape the very identity of our nation. You are now faced with such a moment as Justice Breyer has announced his intention to retire from the United States Supreme Court.

The Supreme Court has been at times the solitary mover of progress and it has often been the roadblock to advancement. It is the one branch of government that does not find itself accountable to voters, to the media, or to the wrath of political donors. The Supreme Court is accountable only to the Constitution of the United States of America and has the ultimate authority over what that Constitution means. This should mean that the awesome task of nominating and confirming a Justice should be taken seriously and not treated as another partisan exercise. However, this has not been the case in the last several nomination battles as Justices Gorsuch, Kavanaugh, and Coney-Barrett have been confirmed in a process that has been totally outside of regular order. Furthermore, organizations like the Federalist Society have removed all pretense of judicial impartiality by poisoning the process with right-wing ideology disguised as constitutional reasoning. Regrettably, politics has become part of the process and will remain part of the process until the political will exists to enact the reforms necessary to restore public faith in the Supreme Court.

It is vital that we engage with reality as it exists, not as we wish it existed. The reality is our system of government is threatened by forces who do not believe in representative government or American democracy. The reality is that these forces are poised to gain a meaningful amount of political power over the next year and will exert that power to meet their ends of disrupting American democracy. The reality is that it is not guaranteed that these forces can be defeated without extraordinary action. Therefore, I am presenting an extraordinary action that could prove immeasurable in preventing our slide towards illiberal democracy.

Nominate Vice President Kamala Harris to fill this Supreme Court vacancy. The obvious should be stated that Harris is qualified for this position, she understands the constitution to be a living document, and she generally can be counted on as a liberal vote despite justified criticism of her past positions on criminal justice. There is something that is perhaps less obvious that must be said, the public generally does not expect nor at this current moment desire to see you seek re-election to a second term as President. It is assumed then by the public and by our party that the next Democratic nominee for President will be Vice President Harris. I believe given the increased risk of permanent and irreversible damage to the American system should authoritarian forces be successful in electing their candidate for President, it would be worse than irresponsible to have Vice President Harris lead our party into a general election.

The Vice President was unable to continue her 2020 campaign for President into 2020, dropping out well before her home state’s primary who’s polling placed her outside any hopes for victory. Vice President Harris, despite having a lower profile than yourself has been rated as significantly more unpopular by virtually every pollster. Candidly, I would not be surprised if the Vice President were the first Democrat to lose the popular vote in 20 years. Some of the opposition she faces is because of her race and gender, undoubtedly it must be in a country with as much fraught racial history and racism denialism as ours. However, it would be dishonest to suggest that all of her opposition comes from misogynists or racists.

This is not meant to disparage or attack the character of the Vice President; she would be a champion for the rights of so many and would likely establish a legacy rivaling the late Justice Ruth Bader Ginsburg should she be nominated and confirmed. The Supreme Court allows an individual to make changes to our society not possible from the White House or Congress, it would not be a demotion but a vote of confidence in the Vice President’s ability to interpret law.  However, it is my sincere belief that she would be unable to win a general election for President of the United States even in the most favorable of circumstances. Nominating Vice President Harris would not only fulfill your promise to nominate a Black woman to the Supreme Court, but it would also allow you to pick a successor who would have a greater chance of success in a campaign for President. It is my hope that you would select Rep. Karen Bass of California or Rep. Barbara Lee of California or Sen. Tammy Baldwin of Wisconsin to succeed the Vice President. These distinguished women have shown themselves to be dedicated public servants, empathetic campaigners, and more than capable of being President of the United States. Furthermore, they have been champions of your agenda as President and progressive causes throughout their careers.

You have often stated that we are in “a battle for the soul of America”, I would counter that for the last 60 years we have been in “a war for the soul of America”. It is imperative that we are all doing what we can to pull this country back from the brink if it can in fact be pulled back. I do not know that the Vice President would accept a nomination to the Supreme Court, but I believe that she should be asked. Mr. President, ultimately the choice of a Supreme Court nominee is yours and I hope that you will consider all of your options.

Sincerely,

Reece Ellis

St. Louis, Missouri

The post An Open Letter to Joe Biden: Nominate Kamala appeared first on Occasional Planet.

Following the oral arguments on the Mississippi Abortion Law on December 1, many legal scholars have said that five of the six conservatives on the Supreme Court (all but Chief Justice John Roberts) seem inclined to overrule Roe v Wade.

If the Court overrules Roe, it could be a case where pro-life proponents including the likely five justices who vote to do so (Alito, Barrett, Gorsuch, Kavanaugh and Thomas) may want to be careful about that for which they wish. The reason is because the decision would likely be handed down in late June or early July of 2022, and mid-term elections would be just a few months later in November.

As of now, should Roe be overturned, approximately half the fifty states have laws in place that would ban virtually all abortions. That means that tens of millions of women who currently have limited rights and resources to receive an abortion would be shut out of that choice in their state of residence. And since so many of these states are adjacent to one another in the South and the Midwest, women would be many hundreds of miles away from a clinic in a state where abortion would still be legal and accessible.

Progressives have been reluctant to talk about why abortion should be safe or legal, other than the basic issue of women’s rights. Rarely do choice proponents mention how difficult it can be for a woman, or a man, to be a parent when they lose a job, they are still in school, they have a life planned in professions where they cannot easily be removed from a prescribed path. Rarely do they talk about the economics of parenthood. Rarely do they talk about while adoption is an excellent alternative, it’s not for everyone. Rarely do they talk about all the pain and agony that a woman must endure when she is in the midst of an unwanted pregnancy. Rarely do they talk about how many of the women with unwanted pregnancies are actually girls, often victims of rape or incest.

Simply put, pro-choice proponents have not been pissed off enough, at least not publicly so. But if Roe is overturned this coming summer, millions of women and men who conveniently thought that this issue would fade away will be confronted with a singular commonality about their choice of abortion: massive inconvenience and expense. It may be that there are as many reasons for a woman to opt for an abortion as there are women, but virtually all will be united in wanting to get the federal government to reinstate their right to control their bodies.

If this happens, pro-choice candidates will get unprecedented numbers of committed and effective volunteers. The airwaves will be saturated with commercials on both sides of the issue, but for those who are pro-choice, it will be something new. The myopic vision of many who are pro-life will be unmasked as it becomes more clear that they have no right to be involved in a decision about something that they don’t own. It will be recognized as the worst kind of over-reaching.

If next summer and fall we see a mobilized pro-choice movement unparalleled since anti-Vietnam and civil rights efforts of the ’60s and ’70s, Democratic candidates could have the support to win in states and congressional districts that are presently considered deep red. Joe Biden will still have two years left in his presidency and he might have more workable majorities in both houses of Congress.

Eventually, Supreme Court vacancies will occur when we have a Democratic president and a Senate that has reformed its rules to better allow the will of the majority to prevail.

It has happened in our nation’s history that government has moved aggressively to protect civil liberties, most particularly in the sixty’s decade of the nineteenth and twentieth centuries. Perhaps, just perhaps, overturning Roe will have the unintended result of expanding human rights. For that, we will all be far better.

The post Pro-Choice Advocates May Benefit from Timing of Supreme Court Decision on Mississippi Law 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.

Republicans have clearly stated that they won’t even hold a hearing on President Obama’s Supreme Court nominee, Merrick Garland. But that obstructionist stand should not prevent Senate Democrats from holding their own “rump” hearings. [Definition of rump, in case you’ve forgotten: “constituting a subsidiary or small group or the remnant of a once larger organization”] 

I’d love to see the Democratic members of the Senate Judiciary Committee set up their own alternative, “rump” hearing. The Democratic Senators on the Judiciary Committee are: Patrick Leahy, D-VT, Dianne Feinstein, D-CA, Charles Schumer, D-NY, Dick Durbin, D-IL, Sheldon Whitehouse, D-RI, Amy Klobuchar, D-MI, Al Franken, D-MN, Christopher Coons, D-DE, Richard Blumenthal, D-CT. That’s an all-star lineup, many of whom would thrive on the attention they’d draw to themselves. Think Schumer, in particular.

I don’t know if Senate rules ban them from holding an unauthorized meeting in the Judiciary’s hearing room. But if such a prohibition exists, why couldn’t Democrats simply rent a nice meeting room somewhere in DC and convene there, unofficially?  It could be a very effective political move: They could show off Garland’s credentials while taking the opportunity to shame the Republicans for not doing their job.

They could also issue invitations to Republicans—both on and off the Judiciary Committee. Some Republicans—feeling vulnerable to November challenges because voters know that they’re doing nothing productive—have already said that they’d “meet with” Garland, even if they haven’t gone as far as saying they’d attend an official committee hearing. Maybe some of them would show up, too. What a public-relations coup that would be, eh?  [I know, magical thinking.]

Still, I would hope that, at minimum, C-SPAN would cover the “hearing,” and it would be even better if some courageous mainstream media outlet would be there, too. At the very least, print media and alternative sources could be invited.

How about it Democrats? Get creative. What have you got to lose, anyway?

The post Democrats should hold “rump” hearings on Merrick Garland appeared first on Occasional Planet.

John Roberts has one iron in the fire that none of the other conservatives on the Supreme Court have. As chief justice, it is legacy that will primarily characterize the years in which  SCOTUS is referred to as the “Roberts Court.”

There are at least two factors that may explain Roberts’ decision to uphold the Affordable Health Care Act. His reasons may have been difficult for many to understand, but they were real.

First, he is aware of the word “embarrassment.” For the Court to have ruled in opposition to the Affordable Act, the past twenty years under Roberts and his predecessor, William Rehnquist, would have been a run of one conservative ruling after another. Whether the case had to do with campaign finance reform, reproductive rights, and most importantly, selecting the President of the United States, the Court consistently leaned to the right and made its decision from that position. A different court might have made Al Gore president, better protected women’s rights, and prevented campaign contributions from being like money at a slot machine. Roberts knew that all these decisions represented more than considered thought and reason. They were political bias.

Roberts may be a conservative, but he is not a fanatic. Washington is densely populated with individuals who are intensely mean and have little regard for the common good. On Roberts’ court, he need do no more than look to the right and see Antonin Scalia, Clarence Thomas, and Samuel Alito. Across the street on Capitol Hill, they come by the scores, perhaps hundreds with the likes of Eric Kantor and Tom Coburn.

One explanation for Roberts’ ruling is that he had spent enough time with “bad company.” Being with Scalia and Kantor, regardless of whatever merits their arguments might have, would not only show a blatant conservative slant, but it also would reflect poorly upon Roberts’ court. He needed to do something to separate himself from his right wing colleagues, and he did so and maintained an important degree of wisdom and dignity.

The second reason is that while he may have felt that a federal mandate on health care was unconstitutional, he had some degree of empathy for those who suffer from our flawed health care system. In his most clear moments, he may have also realized that a Medicare for all system might have been the cleanest, most effective, and most fair way of providing a fair measure of health care for our citizens. For nearly eighty years, New Deal legislation has been held constitutional, and it’s been over forty years since Great Society legislation such as Medicare passed the Supreme Court constitutional muster. Between the lines of his majority ruling is a certain direction toward the single payer system that so many liberals wanted – simply include health care coverage in the payroll tax – Medicare for all.

Roberts is not an island unto himself. His leanings are conservative, but he knows when enough is enough. He may have a kindred spirit in House Speaker John Boehner. How many times has Boehner been able to negotiate agreements with President Obama but have it thrown under the bus by Kantor and other Tea Party members of Congress? Boehner is smart enough to know that effective governance requires a measure of bi-partisanship. You win some and you lose some. Obama knows the same, and recently he has been choosing winning whenever possible. It is clear now that Roberts knows that there is a limit as to how far a ship of state can list to the right.

Roberts is conservative by nature. That can be difficult for some to understand, because he seems like such a nice guy, and we generally don’t associate kindness with decisions that do harm to those who can least help themselves. But even he has limits. The person with a pre-existing heart condition or who is thrown out of a hospital because his or her insurance expenses have “maxed out  may be too much for him to take. It may be philosophical for him, or it may be from personal experience. But somehow, for a variety of reasons, he was not going to let the Affordable Care Act die on his watch.

At the risk of being self-serving, some of us saw this coming. Roberts needed a break from decisions that are plain mean. Like all of us, he has to look  at himself in the mirror and find a way to sleep at night. He should sleep well now, and we should not be surprised by his vote and opinion on the Affordable Care Act. Hopefullmy there are more decisions from where this one came.

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If the Supreme Court strikes down the individual mandate to buy health insurance, conservatives and Tea Party members will be dancing in the streets, but it may be a victory in disguise for progressives who want to preserve endangered social programs, and it may help President Obama win reelection.

The individual mandate is part of a deal struck with health insurance companies to expand coverage to all Americans under the Affordable Care Act. In return for more customers, insurance companies have to stop denying coverage for pre-existing conditions and ending coverage if people get sick. What’s important for us to remember: The individual mandate was an idea hatched at the conservative Heritage Foundation. One could even say that the individual mandate is a conservative Trojan horse. It has been, and remains, the cornerstone of Republican/corporatist plans to privatize public programs like Medicare, Medicaid, and Social Security.

The best way for the government to provide universal health care is to provide the service directly to everyone and fund it through a more fair and equitable tax system. In other words, we would have a single payer system similar to what the rest of the developed world has. The other option is to create an individual mandate forcing everyone to buy health insurance from private corporations and have the government subsidize the cost. In this health care scenario, we include useless middlemen who skim off a profit causing higher costs for both individuals and the government.

The conservative plan to unravel the social programs using individual mandates

Rep. Paul Ryan and the GOP want to replace Social Security with an individual mandate to buy private retirement accounts. They could do the same for Social Security disability by mandating that we all buy private disability insurance. Conservatives plan to use individual mandates to destroy Medicare by mandating that everyone over retirement age use vouchers to buy their own private health insurance. They could do the same with unemployment insurance. And, of course, they want to eliminate our public school system by replacing it with vouchers, mandating that everyone buy their education from private schools.

If the Supreme Court rules against the individual mandate in the Affordable Care Act, it will also be declaring that it is illegal to replace public programs with mandated private systems, and that’s a good thing. It will drive a stake in the heart of the relentless efforts of conservatives to privatize anything they can get their hands on. Will this reflect badly on President Obama? I don’t think so. The individual mandate has never been popular, and during his last campaign, even the president was against it. The good news? If the individual mandate is off the table, it will be one less thing the GOP can run on. Given they don’t have much to offer the American people, this can only help President Obama’s campaign for his second term.

What will happen to the  good aspects of the Affordable Care Act, like the ending of pre-existing conditions and the national exchanges? I don’t know, but it is only a matter of time before the United States moves to Medicare for all. Perhaps the demise of the individual mandate to buy private insurance will hasten that inevitability.

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