Maine and Missouri

Here's something Jill Lepore just reminded me about:  The state of Maine is actually rather young, as New England states go. While Massachusetts and New Hampshire were among the original 13, Maine did not get into the union until the 19th century. It had been part of Massachusetts, which must have been one huge state, and how that happened with New Hampshire in between, I'll have to google. 

But when Missouri wanted in as a slave state, they needed a free state to offset that, which provided Maine with an opportunity.

And so, we have the beautiful (free) state of Maine, and here is a sunset shot by one of Maine's best photographers, from Frye Island, which, I suppose, must carry a lesson: Even sordid dealings may occasionally come with a golden sunset.

Frye Island, Maine, Sunset--M. McCarthy

The Court: It's All Over Now, Baby Blue

How quickly has Kavanaugh become yesterday's news?
For too many women, who flew to Washington, to tell tearful stories with trembling lower lips, to bond with fellow women who have been abused by predatory men, who wailed that women can never again feel safe in this country, who Tweet each other and say, "Thank you for sharing your story. How very brave of you." 
For all those women for whom this final nail in the lid of an archly conservative Supreme Court, this has simply been a great stage for self dramatization, hugging, wearing pink hats, well they can move on now to organizing marches and singing "We Shall Overcome."

For the Republicans, men mainly, they can retire to their dens, break open some booze and light cigars: The Court is now safely in their hands for the next 30 years. 
Roe v Wade's days are numbered. Individuals will be able to claim their unwillingness to serve Blacks, gays, MS-13 members, Spanish speakers is protected by the First Amendment, as their racism is simply an expression of their deeply held religious beliefs: GOD has spoken to them and told them to burn Negroes and Jews and undesirables at the stake.

Unless and until the Democrats can brave up and chose some real leaders, real warriors.

Jill Lepore, Ginsburg, Kavanaugh and Reality

Jill Lepore has, in the October 8 New Yorker, rendered the ultimate service of the historian: she has made sense of a confusing present moment by re examining the past, in an article which is nominally about Ruth Bader Ginsburg, but is really about the Supreme Court and the underlying lie which pervades that most political of our institutions, namely that the justices of that Court are non political, not making up laws, not creating new strike zones but only calling balls and strikes in a zone determined by the legislature.
She begins with the question Senator Joseph Biden posed to Ginsburg during her confirmation hearings: "In your work as an advocate in the seventies you...pressed for immediate extension of the fullest constitutional protection for women under the Fourteenth Amendment and you said the Court should grant such protection notwithstanding what the rest of society, including the legislative branch, thought about the matter."

What he was questioning, of course, is what conservatives call "judicial activism" when it is the conservative ox which is gored, and "original intention" when the other side gets gored by the Court.

Clearly the Court was ahead of public opinion in Brown v Board of Education, when it declared "separate but equal" was a phony dodge for segregation and denial of basic rights to Negroes. And it may well have been ahead of public opinion in Roe v Wade, when it found a right to privacy, that word appearing nowhere in the Constitution, as the basis for a right to women "controlling their own bodies" and being allowed to have abortions, although Harry Blackmun, who wrote that extraordinarily wise opinion, noted that the line between infanticide and abortion is a matter of line drawing, and he drew his line at viability, which in 1973 was about 21 weeks.

 Lepore notes, "She never answered Biden's question. Instead, she established her own rule: the Ginsburg precedent, a rule of restraint. But there are very few rules left anymore, and even less restraint."

With the Kavanaugh show, we have been told, clearly enough, it's Trump Rules now. Everything is now in your face, mafiosi style now. "Hey, I'm a gonna smash your face in!" And this is just style, we are talking about. A pretense. A veneer of respectability, when in fact, underneath, deeply held biases guide each justice to an end point unaffected by facts or the law. If you are Roger B. Taney, hearing a case from Dred Scott, who claims his rights have been violated by enslavement and you do not believe Negroes are people but in fact are property, like cattle, then you get to the decision to deny him freedom and you find a law or legal principle to get you there. This Dred Scott is property and so he has no "standing before the Court." A dog cannot sue for his freedom. Dred Scott has no more standing than a dog.

Which is exactly the point I wish to explore: 117 judges have written to the Senate condemning Judge Kavanaugh's lack of "judicial temperament," and his political attack, calling the attack against him a "political hit job."  But one man's lack of restraint is another man's righteous indignation.
And Kavanaugh is not wrong about the use to which the charge against him has been put and the motivations of those, beyond his accuser, which have driven this attack.

Why do judges and Court experts so fear an appearance of anger on the part of a justice? Retired Justice Stevens said now that Kavanaugh has attacked Democrats as being politically motivated in their opposition to him, he cannot be seen as impartial.
As if any of these justices--Alito, Thomas, Roberts, Gorsuch--are not seen as politically driven in their opinions. As if Sotomayer, Kagan, Ginsberg and Breyer do not see cases through liberal lenses.  It is this abiding fantasy, that the court is above politics, is impartial, does not prejudge cases by bringing to them a set of foundational beliefs which Kavanaugh threatened with his flash of anger.

There are several questions which have been jumbled up in the Kavanaugh affair and we should try to untangle these:
1/ Is it possible that both Kavanaugh and Dr. Christine Blasey Ford be telling the truth?
2/ Is the opposition to Judge Kavanaugh based on an assessment of his moral fiber, his character or on his conservative politics?
3/ Is there an 800 pound gorilla in the room nobody wants to talk about: Namely Mitch McConnell and his brazen acknowledgement that the court is fundamentally political, and politics is power and he had the power to steal the seat owed Obama, so he did and now the Democrats are saying, we will try to use our power to steal it back again?
4/ The role of #Me Too and the "joys of victimhood."
5/ The idea of "rehabilitation"--long a liberal song. We should not send people to prison to punish them because people can do violent, nasty things and yet be able to be "cured" of this, to right themselves and to change.

Sally Hemmings and Me Too?

This last idea has got almost no attention. Even if Kavanaugh attempted to rip off Christine Blasey's swim suit and rape her when he was 17 and she was 15, does it not matter that in the 30 years since his high school and college days, he has interacted with many women who were his law clerks, his colleagues and many of them attest he was a perfect gentleman? Where is the concept of rehabilitation, personal change and redemption there? Once a drunken, randy frat boy always a frat boy?  Kavanaugh would be dishonest to put on a sweet, judicial face and countenance that attack.

What of the idea both Kavanaugh and Ford are telling the truth? If Kavanaugh tried to rip off that bathing suit and failed, could it not be true because he was unable to rape and penetrate that girl, it became just another in a long line of girl rejections and he moved on and forget it? 
He may have remembered his first episode of sexual intercourse, but he may well have forgotten all the failed attempts.
Of course Christine Blasey would remember that incident, while he flipped it off like a soaked sweatshirt.

Is the attack on Kavanaugh political calculation or moral outrage?
 Well, from the point of view of Chuck Schumer it is the most transparent and likely cynical opportunism.
Oh, we got him now.
But from the point of view of all those women with placards outside the hearing room, all those women following Congressmen down the halls to the elevators,  it's moral outrage. This is just another in the long line of males having their way and smirking about it. To say they are projecting their own experiences and demons onto Kavanaugh, who none of this women actually know, is to state the obvious.

But what about the current Kavanaugh?
If every woman who has interacted with him for the past 20 years insists he is a perfect gentleman, does that not matter?

And what of the #ME too thing? A writer for the Atlantic , Emily Yoffee, points out the whole idea that an accusation is tantamount to a conviction, that the accused is always guilty and the accuser should always be believed is the essence of injustice. Thal shall not bear false witness--a commandment which, is there because even the ancients recognized there is such a thing as false witness, and the harm suffered by the falsely accused is great, great enough to warrant a commandment of its own.

And then there are those other members of the mob with signs.
Women interviewed on the radio. The survivors.
And there is Joseph Epstein, writing in the failing NY Times of 1989:

"Victims have never been in short supply in the world, but the rush to identify oneself as a victim is rather a new feature of modern life. Why this should be so isn't very complicated: to position oneself as a victim is to position oneself for sympathy, special treatment, even victory."
--"The Joys of Victimhood"
The fact is, what this is really all about is the Supreme Court has pretended to be a political for 100 years but in reality, it as been the essence of political, purely ideological, unrestrained by term limits or being answerable to an electorate.

The solution?
Admit the truth: The Court is, has always been and likely should be purely  political and ideological.
But as politics change, so should the Court.
Roe will be overturned, and that is the will of the electorate. But four years from now, or eight, if we had a new Supreme Court, with 4 or 8 additional justices (a packed Court), it will change back again, as the voters want.
As Lepore notes, even Ginsburg thought Roe was a poor case for an abortion ruling. There was a better case, but it never saw the light of day.
Meanwhile, Supreme Court justices, especially Antonin Scalia, riddled the idea of the dispassionate, "judicial temperament" with dissents which reeked of invective.
Dissents like, "Running headlong from the questions briefed and argued before us, my colleagues seek refuge in a theory as novel as it is questionable." And calling decisions "Orwellian" or "A blow against the People."

The solution has nothing to do with any one justice. The solution has to do with restructuring the Court, which can be done without a constitutional amendment.
The Constitution does not mandate 9 justices. There could be 90.

The whole idea that we can fix the problem of the "rule from the dead" with civility, calm demeanor, black robes, probity, sobriety is the ultimate sham. We are dealing with human beings who harbor deep seeded philosophical prejudices. You cannot get around that with dressing up in black robes and play acting.
We need a court which changes with every new administration, at least a little and over the course of 8 years, if the electorate wills it, will change substantially, even radically, to reflect the beliefs of the times.

That is the only way to solve the problem of the Court.

A Republic, If You Can Keep It

Here's an interesting fact upon which to cogitate:


The following nine Republican United States Senators represent fewer people in the United States Senate than Ben Cardin and Chris Von Hollen represent from the single Democratic state of Maryland:
Nebraska: Ben Sasse, Deb Fischer
Idaho: Mike Crapo, James Risch
South Dakota: John Thune, Mike Round
Wyoming: John Barrasso, Mike Enzi
North Dakota: John Hoven--the other US Senator is a Democrat, Heidi Heitkemp.


Another way of thinking about it: Ben Cardin represents 6,016, 447 citizens while Mike Enzi represents 585,501 citizens.

And yet Enzi's vote on Supreme Court nominations, on whether or not Roe v Wade gets undone counts just as much as Cardin's.


Or, to put it another way, each Wyoming voter has a voice 10 times louder than each Maryland voter, on whether or not abortion will be kept safe and legal, whether or not a restaurant owner can refuse to serve Black customers in his place of business, open to the public, on the grounds his deeply held religious beliefs tell him Whites and Blacks should not mix in his restaurant, or in his hotel or in the public school his children attend, or whether we should have a national health care system or Medicare for all.


One might ask, why should a person living in a state which is mostly prairie run the lives of people in Baltimore?

Structural Problem with American Governance

Reading Kathryn Schulz's New Yorker article "Food Fight" (10/1/18) alongside Jill Lepore's "These Truths," one striking thing is the truth in Faulkner's observation, "The past is not dead. It's not even past."

Fact is, we have never solved the vexing problems we started with on this continent; we simply agreed to  workable compromises to ignore them, or set them aside, like a marriage in which the partners agree to simply live in separate rooms, have dinner with the kids, but in many other ways, lead separate lives. 
We get together around the Thanksgiving table, have Christmas, go to family reunions, but as time goes on, we really can't stand each other.  
We agree to not fight in the presence of the children or in front of our parents and friends, but underneath, there is more driving us apart than holding us together.

What Lepore clarifies is how much slavery was part of decisions which were made at the inception, and how it nearly destroyed the whole idea of a marriage between North and South, but, fact is, enough Northerners owned slaves, Benjamin Franklin notably, they agreed to dodge the slavery bullet every time it came up, and simply to ignore that problem. 

But eventually, it came back to nearly destroy the nation. 
The racism which under-girded slavery, however, never disappeared, smoldering deep inside the vital organs of the country.

Then there was the rural/urban divide, which has caused as many, if not more, problems than slavery. The solution seemed benign enough--have a Senate to be sure each geographic part of the country got equal say in federal rules, even if vast stretches of that geography contained few, if any, people. The founders and their progeny decided a country was not only its people, but its land, its acreage, and the rights to that land and its use.

And that, too has come back to bite US. 

And then there was the contempt the founding and the ongoing ruling elite have for the unwashed masses, the common man.  That got us the electoral college. In recent times at least, that meant minority Presidents, George W. Bush and Donald Trump, were handed power, when the humble masses chose Al Gore and Hillary Clinton.

The men with money, position and power were safe and could manipulate and control the masses.

Most recently abortion has been the driving force which has corrupted and distorted power.  Throughout the Bible belt that has meant only one thing really matters: Evangelicals, fundamentalist Christians decided they would vote for Lucifer himself, if it meant abortion would be outlawed. They could take care of Lucifer later, but for now they needed him to stuff the Court with anti abortionists. Nothing else mattered.

Red is for empty; Blue has people

Democrats failed to see this, and thought because the majority of citizens favored permitting abortion, this was an issue which would not hurt them. What they forgot is where that majority lies: concentrated in cities and the cities have been deprived of their power. 

There are more people in Los Angeles who want abortion to be safe and legal than in both the Dakotas, Wyoming, Montana and Idaho, but LA gets only 2 Senators and those empty states get 8. And the Senators control the Court whenever the President is a Republican. 

Trump won Red; Clinton Blue

It's a game, and the Republicans have manipulated the game.
They manipulate lots of games, because that's how rich men stay in power--they play games unseen. They get control of things and twist them to their own benefit.

All the conspiracy theories about Jews controlling this or that, about liberals conspiring to control the world with Black helicopters are 99% wrong. 
What is true is that people in 400 families control this country. 

And nobody yet has figured out how to stop them. 

Kanvanaugh, SCOTUS: The Reality

Does anyone really think this Brett Kavanaugh kerfuffle is really about Brett Kavanaugh being a Bill Cosby esque sexual predator?

Here is what really happened:
Mitch McConnell broke the agreement about Supreme Court nominations when Obama tried to put Merrick Garland on the bench. Everyone had played by the rule that a President can appoint pretty much who he wants if a vacancy occurs during his term in office, within the realities of who is centrist enough to get past the Senate when it is ruled by the opposing party. But McConnell saw he had the power to break the rules and he did it.

Now the Democrats are playing the one card left to them: They try to assassinate the character of a really radical reactionary Trump has put forward. They cannot deny him the spot for the real reason: He is to the right of Genghis Kahn and he will reverse Roe v Wade and will lead the court beyond Roger B. Taney ville, likely reversing equal voting rights, and possibly finding slavery permissible when the slavers claim they need to have slaves as a matter of personal religious belief.

So, they try to get Kavanaugh by any means available.

Their case is pretty pathetic: as the women in my office have said--what teen age male is not a sexual predator? They are too stupid to know any better. It's just a matter of degree. If they rape somebody, they should go to jail, but otherwise, girls ought to think about walking around a party in a bathing suit when boys are drinking.

Kavanaugh will be confirmed.
The # Metoo movement will smart and seethe.
But the #Metoo movement deserves a punch in the nose--they tried to make accusation into a sacrament.

Pack the Court, soon as the Dems get the White House and the Senate. 
That's the only way to undo the prospect of 30 more years of despotic rule from the United States Supreme Court, that Court which is the ceaseless tide carrying the ship of state relentlessly into the past.
MAGA!

David Leonhardt Breaks Through: Finally Some Reality

Mad Dog is happy to report that his relentless hectoring of his Twitter targets, his letters to the editor of the Times etc, have finally got the attention of at least one "opinion leader" namely David Leonhardt of the NY Times, who writes that the United States Supreme Court is now so fatally afflicted with partisanship, term limits for the justices should be imposed.

Of course, he wusses out by going for the 18 year limit scheme, and this would require a Constitutional amendment and getting that through 34 state legislatures stands a snowball's chance, but at least he is a mainstream media type who finally acknowledges sinking Brett Kavanaugh is an exercise in mass delusion, the red herring let loose to distract attention, when the great white shark is silently gliding behind.


The problem with the Supreme Court is not Brett Kavanaugh, nor even Alito, Gorsuch, Thomas or Roberts. The problem is the custom of running the court with only nine justices, each of whom serve for life.

Other countries have 27 or even 100 supreme court justices and they work just fine.


The problem with our court is as the nation changes with respect to its ideas about segregated schools, abortion, campaign contributions, gun control, labor unions, the Court remains somewhere to the right of Roger B. Taney and Genghis Kahn.


The problem is change is fine as long as change can be undone, modified as experiments fail and new ideas emerge.

But at least we are beginning to hear people talk openly about actions which are the natural outcome of Mitch McConnell's breaking the rules, because he had the power to do it: It was Obama's turn and McConnell refused to let him have his turn. Well now: you broke it;  we'll fix it.