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The following books by Robert Paul Wolff are available on Amazon.com as e-books: KANT'S THEORY OF MENTAL ACTIVITY, THE AUTONOMY OF REASON, UNDERSTANDING MARX, UNDERSTANDING RAWLS, THE POVERTY OF LIBERALISM, A LIFE IN THE ACADEMY, MONEYBAGS MUST BE SO LUCKY, AN INTRODUCTION TO THE USE OF FORMAL METHODS IN POLITICAL PHILOSOPHY.
Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.

NOW AVAILABLE ON YOUTUBE: LECTURES ON KANT'S CRITIQUE OF PURE REASON. To view the lectures, go to YouTube and search for "Robert Paul Wolff Kant." There they will be.

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Saturday, October 17, 2020

A DARK OBSERVATION ON A SUNNY DAY

One of the most famous taglines in the Marxian corpus is the opening of The Eighteenth Brumaire of Louis Napoleon:

 

“Hegel remarked somewhere that all great, world – historical facts and personages occur, as it were, twice. He has forgotten to add: the first time as tragedy, the second as farce.”

 

Thurgood Marshall was replaced on the Supreme Court by Clarence Thomas and now Ruth Bader Ginsburg will be replaced by Amy Coney Barrett.

 

We live in diminished times.

41 comments:

Anonymous said...

This is not a profound post, however I think your critique of pure reason Kant lecture is fantastic. Thank you for that.

Christopher J. Mulvaney, Ph.D. said...

Well, Anonymous, it ain’t chopped liver.

s. wallerstein said...

Glenn Greenwald on how Facebook and Twitter unite to ban information about Hunter Biden.

https://theintercept.com/2020/10/15/facebook-and-twitter-cross-a-line-far-more-dangerous-than-what-they-censor/?utm_medium=email&utm_source=The%20Intercept%20Newsletter

PhilosophicalWaiter said...

As bones strengthen only in response to physical stresses, so many men and women become figures of strength only in response to great social stresses. So those who struggled through the depression or survived WWII were forced to be strong, and that strength became something expected and admired. I have watched those (mostly men) in politics and as newscasters and commentators, and there was an undeniable gravitas in them that has indeed faded as the distance from those defining events lengthens.

This is not to diminish the Civil Rights Movement, the woman's right's movement, the gay rights movement, or any other of struggles and stresses since WWII. Those challenges, of course, have raised their own Titans, but our social divisions prevent us from collectively, socially gaining strength in the way that shared suffering and sacrifice did before.

I sat down intending to write that the great stresses of our fight to save democracy and overcome a pandemic will again raise up the strong among us and force us all to become stronger, and it has. But a society at war with itself, at least in U.S. experience, does not raise the same kind of leaders that come from unified struggle against a great calamity or a foreign foe. The unforgivable sin of the right has been to infect what should have been great unifying events (e.g. 9-11, COVID-19 pandemic) with tawdry partisan aims.

If we finally shift the American paradigm away from white protestant rule to that great hope of e pluribus unum , then we are at the cusp of a nation working together to meet the great challenges we face.

PhilosophicalWaiter said...

Prof. Wolff, I can only beg your forgiveness for my indulgence in long commentary.

TB

Jerry Fresia said...

Did you see ACB's evaluation of her kids?

The white kids: smart, one has "the math gene," likely to becoming lawyers.
The black kids: one is happy-go-lucky, the other an amazing weight lifter.

MS said...

There is no question that from a purely academic perspective, Judge Barrett is eminently qualified to be a Supreme Court Justice. In answering the senators’ questions, she demonstrated a thorough knowledge of the law, spouting statutory citations from memory, and recalling in exceptional detail the facts and holdings of the various decisions she was questioned about. And the Republicans are correct, that is the only basis for evaluating whether a nominee for the Supreme Court deserves to be confirmed. And in the past, that had always been sufficient. It was the basis on which Justice Ginsburg was confirmed. If there is a deficiency in Judge Barrett’s background it is in her lack of experience as a judge. She has only been on the 7th Circuit a few years, whereas Justice Ginsburg had served on th D.C. Circuit for 13 years before she was nominated to be a justice on the Supreme Court. But judicial experience is not a prerequisite for serving on the Supreme Court – Justice Frankfurter had never been a judge before he was nominated to the Supreme Court while he was teaching law at Harvard.

The Republicans kept making a big deal about the fact that the Constitution prohibits a religious test for serving in public office. But that wasn’t the issue. The issue was that the 1st Amendment’s Establishment Clause requires a separation of church (i.e., religion) and state, and in the context of a Supreme Court Justice requires that a justice, however devout or irreligious, not allow his/her personal religious views influence their decsion making. The concern on the Democratic side was that Judge Barrett would not be able to do so, and would allow her devout Catholicism to influence how she decides cases, particularly about abortion. It is the express opinion of the Catholic Church that human life begins at conception, and as a devout Catholic who in fact signed a letter supporting that view, it is difficult not to be skeptical about Judge Barrett’s assertion that she would not allow her personal religious views to determine how she decides cases. We have reason to be very skeptical, and only time will tell if she was being honest and will stand by what she said. Unfortunately, even if she votes to overturn Roe v. Wade, or votes that state legislation imposing severe restrictions on abortion, it will not necessarily mean that she was lying. There are legitimate legal bases for opposing abortion on demand that are separate from one’s religious views - that, for example, it is an issue that implicates a state’s right to regulate certain medical procedures that are performed within the state, while still recognizing a woman’s right to choose. So, Judge Barrett could hide behind such an analysis and claim she did not lie at her confirmation hearing. This, however, would support a vote to overturn Roe v. Wade altogether, because so doing would state that under the 4th and 4th Amendments, a woman’s right to choose does not exist, and what explanation for such a vote could there be except one based on one’s religion?

(Continues)

MS said...

We will know soon enough regarding how candid Judge Barrett was in her answers when the decision on the constitutionality of the ACA is issued. I admit I am a little weak in my knowledge about the provisions of the ACA, but based on my past reading the issue seems to come down to the following: The ACA originally had a universal mandate that imposed a tax/penalty on those who failed to buy insurance. It’s purpose was to spread the risk so that insurance companies could lower the cost purchasing the insurance. Then the Republican Senate zeroed out that tax/penalty and are now arguing that since there is not tax/penalty, which Justice Roberts’ characterization as a tax saved the ACA from being unconstitutional, if a zero tax is not a tax, they argue that the provision which saved the ACA no longer exists, and therefore the entire ACA must be stricken down. But even it they are correct that a zero tax is not a tax, it does not necessarily follow that the ACA cannot survive without it, which is the issue of severability, that is, can the ACA operate without the tax, does the elimination of the tax make the ACA unworkable. Without studying the provisions of the ACA in any detail, it seems obvious to me that it is severable without decimating the effectiveness of the ACA. Why? Because it has been working even with the tax being zero. Millions of Americans, as the Democratic senators amply demonstrating, are continuing to buy their insurance through the ACA health networks, and rely on it to survive. It is true that the premiums may have gone up since the mandate was removed, but that does not mean that the statute is not working without the tax or penalty, whatever you want to call it. So it seems clear to me that the Republican strategy of attempting to destroy the ACA by removing the mandate did not work – it in fact demonstrated that the tax is severable. So, if Judge Barrett rules that the tax is not severable, then when she testified that she does not have an agenda to get rid ot the ACA, she was lying. And if she was lying about that, there’s a good chance she was lying about her willingness to not allow her personal religious views influence her decision making.

(And Jerry, your point is well taken. I had not noticed that.)

MS said...

Errata: “This, however, would not support a vote to overturn Roe v. Wade altogether, because so doing would state that under the 4th and 14th Amendments, a woman’s right to choose does not exist, and what explanation for such a vote could there be except one based on one’s religion?”

MS said...

Among the numerous cynics and skeptics who are devoted readers of Prof. Wolff’s blog, my suggestion that a federal judge would lie under oath may not be offensive or disputable. Judge (now Justice) Kavanaugh definitely did. But one might suppose that a female devout Catholic (remember, Kavanaugh also claims to be a devout Catholic), who practices what she preaches, as demonstrated by her adoption of two impoverished Hatians, and who speaks with such a dulcet toned voice and apparent sincerity, would surely not lie. But devotees of film noir know better, and we must not forget what W. C. Fields said: “A thing worth having is a thing worth cheating for.”

Boris Dagaev said...

Chilax. It's just another perigee in the endless business cycle.

MS said...

This is my last post-script – I promise.

Since I raised the subject of film noir, for those who are not familiar with the genre, all the films are in black-and-white and generally have a female characters who is fond of putting into practice Keats’ La Belle Dame Sans Merci. One of the best movies of this genre is “Out of the Past,” starring Robert Mitchum, Kirk Douglas and Jane Greer as the femme fatale. Poor honest, good-hearted Robert Mitchum, who is taken for a ride (literally) by a double-dealing, back-stabbing sweet young thing. Five stars.

s. wallerstein said...

Professor Wolff in his previous post spoke about how the experience of Trump will put to rest whatever remains of the myth of U.S. exceptionalism.

What I witnessed in Chile post Pinochet is that the desire among elites to maintain peace trumps (if I may use that word in the sense we used to use it) the demands of justice. Pinochet never spent a day in jail for his crimes and while he never received a formal pardon and while human rights groups and organizations of victims of the dictatorship and their families tried to bring him to justice, there was a "gentleman's agreement" among mainstream political figures, the mainstream media and economic elites that a peaceful political climate and steady economic growth were preferible to the problems that bringing Pinochet to justice would have involved. Although he remained army commander in chief for several years after having to step down as president, Pinochet could not have carried out another coup d'état after that because he no longer had the support of the Air Force, the uniformed police nor of the U.S. embassy. So all he was roughly in the position of Trump, with power to make problems, to cause violence, to disrupt the economy, but not to stay in power.

My bet is that Biden will make a deal and that Trump will leave the White House, but never spend a minute in jail.

MS said...

Stephen,

I am not posting this comment to revive our old antagonisms, but only to make an observation that I believe distinguishes the Pinochet situation from that of Trump, such that I am persuaded that Il Due will indeed spend time in prison a New York prison, if not a federal prison. There are two main differences: (1) Pinochet committed the crimes for which the Chileans sought to have him prosecuted during his term of office. The crimes that Trump will be prosecuted for pre-date his election, and involve the numerous frauds he committed in his business dealings. (2) We have a federation of states, each with their own prosecutorial agencies, separate and apart from the federal government and not answerable to the federal government. The State of New York will prosecuted Il Duce for his fraudulent business dealings involving banks in New York and his state income taxes. And the Democratic governor of New York, and the Democratic Attorney General of New York are keen on punishing Il Duce. Biden will not give him a pardon, and, moreover, he does not have the power to pardon him for crimes violating New York law.

And I did not beak my promise – this is not a post-script.

David Palmeter said...

s wallerstein,

The question of prosecuting a former president is, for me, a difficult one. I detest the fact that Trump will, in all likelihood, not be punished for his many actions. I don't know, however, how many these would amount to statutory crimes. For his political crimes--e.g., abuse of power--the appropriate remedy is impeachment. We all saw how well that went.

At a policy level, I am wary of beginning a practice whereby the new regime prosecutes the old regime. Trump, in his own inept ways, has tried to do that. William Barr, of all people, has apparently not gone along with it. Perhaps Trump's most serious political crime has been his destruction of unwritten norms, something that began before Trump--New Gingrich is a good example of a predecessor--but something he has done with wild abandon. For Trump and most of today's Republicans, Democrats are the enemy, not the loyal opposition. I don't think a democracy can function when that is the prevailing attitude.

All of my concerns, however, relate only to a Federal prosecution for violation of Federal laws. The actions begun by the New York State Attorney General and the New York City District Attorney, concerning state and local laws, are something else all together. I hope they nail the bastard.

TheDudeDiogenes said...

I don't like having to defend ACB, but here's fuller context about what she said about her adopted daughter Vivian (this statement, at least, is hardly the racist insult that some/many are insinuating or outright stating that she made):
"Vivian is amazing. She was 14 months old when she came home and she couldn’t make any sounds at that point. Nor could she pull herself up to a standing position, and she was wearing size zero- to 3-month clothing because she was so malnourished.”

Judge Barrett said that she and her husband, Jesse, were told at the time that Vivian may never speak. “She’d been so sick [that] she hadn’t had a lot of practice making sounds and she hadn’t been spoken to a lot.” Today, all that has changed. “Vivian is incredibly athletic now, and trust me, the speech has not been a problem,” she joked. “I was looking at her the other day at the gym and just thinking what a miracle it is how strong she’s become.”

TheDudeDiogenes said...

Benjamin Studebaker has a different perspective (than most that I've seen), lest we fall into hero worship: The Fear Surrounding the Death of Ruth Bader Ginsburg is Unhealthy.

Here are the three theses:

1. The impact of Ginsburg has been dramatically exaggerated

2. The court is not likely to make the judgements people fear

3. The Democrats have a political interest in misleading us about #1 and #2

MS said...

The DudeDiogenes,

Time will tell, but the past is often prologue. As Senator Klobuchar pointed out, Judge Barrett’s prior judicial rulings, seminar statements, and endorsement of church pronouncements are like deer tracks that appear to lead to a doctrinaire perspective that suggests she will be willing to join the other 5 conservative justices and overturn important precedents, notwithstanding her recognition that there are certain factors which are taken into account in deciding to do so. Consideration of those factors, however, did not stop Alito from being willing to overturn the 40-year precedent of Abood, or prevent Anthony Kennedy and four other justices from overturning Supreme Court precedent when the Court decided Citizens United. Where there is a will, there often is a way.

R McD said...

Since several topics touched on in this and some preceding posts are engaged with in its most recent update, I'd like to draw attention to

https://publicseminar.org/

Christopher J. Mulvaney, Ph.D. said...

If I may, I would like to pose a question or two to our two resident lawyers. My difficulty with Trump’s breaking of norms is that a norm, once broken, is largely ineffective. As a result, many norms may need to be put into law to prevent further abuse. For example, using the White House in political advertisements, as Trump did, and which I understand is already against the law. If that assumption is true, would he not be prosecutable for those offenses after he loses (i.e., and offense committed while in office)?

In the above, I ignored the reality that it is only a DoJ opinion that the president can’t be prosecuted while in office. If that opinion is reversed by the incoming AG, and laws passed to codify the norms broken and constrain a president, I suspect such constraints will be useful in the future. If it were possible to prosecute a president while in office, it would provide a powerful constraint against abuse. Is such an approach to legally feasible in your respective opinions? Given the view on the right, clearly held by Barr, of the “unitary executive” I doubt the Supreme Court as currently constituted would agree to such constraints. (As an aside, the unitary executive theory appears to me to be an attempt to recast presidential powers as rivaling those held by a monarch. One aspect of this b.s. idea is that the powers of the president inhere in the person of the president, i.e., l’etat, c’est moi!,” or ‘’the king is dead, long live the king.’ I suspect that Barr’s willingness to direct the DoJ to be involved in cases like the suit against Trump in NY brought by a women who asserts she was raped by him lies in his belief in the unitary executive theory).

When I think of Trump’s handling of the pandemic the phrase ‘criminally negligent homicide’ comes immediately to mind. Would it be possible to prosecute Trump for his failure to use the powers given to him to in the Defense Production Act, for example, A failure to act to protect citizens during a national emergency is arguably a violation of the oath of office. Specifically, it is a failure to “execute the Office of the President.” Is impeachment the only remedy for crimes committed in office, or is there, at least the possibility or civil or criminal prosecution?

TheDudeDiogenes said...

I can't say whether how Trump has handled the pandemic leaves him open to criminal or civil charges, after leaving office, but his mis-handling of it certainly is horrific.

MS said...

Christopher,

You raise some interesting questions and as one of the lawyers I believe you are referring to, I will take a shot at answering them. The last question you raise, can a President be sued civilly or prosecuted criminally for actions committed while in office which constitute gross or criminal negligence reminds me of the joke which Michael Che made on SNL last Saturday, that Trump’s surviving his corona virus infection is like seeing the drunk driver who cause a 95 car wreck emerge as the only survivor (Che did not use the example of a 95-car wreck, I think it was more like a 5-car pileup, but a 95-car wreck is in homage to the debate that occurred on this blog earlier this week).

There are a range of irresponsible acts and crimes which a President can commit while holding office that would have different outcomes. You will recall that in Jones v. Clinton, the Supreme Court held that President Clinton could be sued civilly while he was President for alleged actions he committed (sexual harassment) before he was President. That decision was widely criticized bymany legal scholars as being incorrect, but there it is. So, if a President could be sued while in office for acts committed before he was elected, it would stand to reason that a President could be criminally prosecuted for crimes actually committed while in office. If, for example, Trump actually shot someone on Fifth Ave. while he was President, it would make sense to conclude that he could be prosecuted for murder while holding office. And I would assume this would be the case. But some politicians (and perhaps legal scholars) might say, if that were the case, what is the purpose of having the clause “high crimes and misdemeanors” in Article II of the Constitution. They might espouse that before the President could be prosecuted for murder s/he would first have to be impeached, tried by the Senate convicted, removed from office, and then tried for murder. I would like to think that this would be the appropriate procedure, but hesitate, given how the Republican senators refused to convict him after he was impeached by the House. Is it possible they would not even have convicted him if he did, in fact, shoot someone on Fifth Ave. and claimed he acted in self-defense. I would not rule it out. Therefore, it would be my opinion (and only an opinion) that if that were to occur, and there was incontrovertible evidence that the President actually committed a crime of that caliber, s/he could be criminally prosecuted even if the Senate refused to convict. After all, if felons can be precluded from voting, surely a potential felon cannot be allowed to continue to rule the country. I am hopeful that no such case ever arises in our country, because if it were Trump, for example, I am not convinced that the Republican senators would in fact convict him.

(Continued)

MS said...

Aside from an actual murder, what if the President were accused of a financial crime other than bribery (which Article II specifically designates as an impeachable crime), let’s say the present were accused of insider trading like Martha was, I believe that if the Senate failed to convict, that that would be the end of the matter. It would not be permissible to proceed to a criminal prosecution either during the presidency or thereafter, because the Senate’s trial would constitute the criminal trial and the President could claim that any trial thereafter would violate the double jeopardy clause. (So, have I contradicted myself – why would it be different if the President was accused of murder and not found guilty by the Senate? As I said, if the evidence was incontrovertible that the President committed a violent crime, e.g., a video tape with witnesses of the President shooting an unarmed man without any provocation, I think it would be difficult for the courts to say s/he could not be criminally prosecuted because he had been acquitted by the Senate and a prosecution would constitute double jeopardy, one reason being that double jeopardy strictly speaking applies to a re-prosecution after a defendant has been acquitted by a jury, and the Senate does not constitute a jury under the law. But it would certainly present an interesting case.)

Regarding conduct which was not criminal, but rose to the level of an intentional tort (sexual harassment) or gross negligence (drunk driving resulting in severe injury to a pedestrian – assuming the President was not being driven by the Secret Service) I suspect that consistency with Jones v. Clinton would require that the President could be sued civilly while still in office. But one of the elements the plaintiff would have to prove is causation, both factual and foreseeable. It would be virtually impossible to sue Trump civilly for his mishandling of the pandemic, because he could point to so many other causes which contributed to its consequences – the Chinese covered it up, he made reasonable efforts to provide the protective gear that the medical personnel needed, compelling a lock down would have violated the people’s liberty interests under the Constitution, etc., etc.

The rest of the examples you raise constituted arguably abuses of power, and the only remedy for those would be impeachment and trial by the Senate. If the Senate does not convict, then there would be no basis to sue the President or prosecute him/her after s/he left office. Senate’s refusal to convict would be the end of the matter.

Finally, as to your first point, could Congress enact legislation which prohibited some of the things that Trump engaged in while in office which violate the protocols of the office – e.g., using the White House staff to facilitate a photo op in front of church. I do not see why Congress could not do that. However, the statute would have to be very specifically worded in order to avoid the defense that it was too vague to give the President adequate notice that the actions s/he committed came within the scope of what the statute identified as illegal. But then the specificity would be counter-productive, because a President as devious and Machiavellian as Trump would find a way to do something that s/he would argue was not covered by the statute.

Well, that’s my take on you on your questions. Perhaps David Palmeter has a different take.

LFC said...

This may already have been said somewhere in the thread, but I would just like to say that opposition to a Sup Ct nominee's judicial philosophy -- not to views on any single issue but to the nominee's jurisprudential (and ideological) perspective on, say, the nature of the Constitution and how it should be interpreted -- is a valid and appropriate ground on which to vote against a nominee's confirmation. If I'm not mistaken, Barrett herself pretty much said this in one of her answers, albeit one that doesn't seem to have gotten a lot of attention.

Anonymous said...

@ S. Wallerstein

"What I witnessed in Chile post Pinochet is that the desire among elites to maintain peace trumps (if I may use that word in the sense we used to use it) the demands of justice."

I can't say that I am really familiar with the cases of Brazil, Argentina or Uruguay, all of which endured brutal rightwing dictatorships--much less in the cases of other Latin American countries. Still, my general impression is that much the same can be said of them.

As a matter of fact, in post-Franco Spain criminals were never really held to account.

In some cases reconciliation commissions were set, along the model of the Rwandan example, but nobody that I am aware had to stand trial.

Although I can't recall precisely, I even seem to remember that former Brazilian President Dilma Rousseff, while attending a social function, apparently met one of the guys who tortured her.

S.W. said...

Mr. Wolff: I suggest this site in addition to your usual one if you want to find out the forecasts in the closing days of the election season; https://www.270towin.com and https://projects.fivethirtyeight.com/2020-election-forecast/ if you haven't seen them already.

Sam Wolff

MS said...

LFC,

I am not sure that I agree with you that opposition to a nominee’s jurisprudential philosophy is a “a valid and appropriate” basis to oppose the nominee’s confirmation. It is certainly a political basis to oppose a nominee, but “a valid and appropriate” basis, I am not so sure. Judge Barrett has made clear that she is a textualist and an originalist, jurisprudential philosophies with which I disagree. But I do not believe, were I a senator, that her jurisprudential philosophy in that regard would be a valid basis to oppose her confirmation, given her otherwise sterling academic qualifications. When Justice Ginsburg was being considered for confirmation, all the senators, both Democratic and Republican, knew that she was not a textualist/originalist and that she would vote to preserve Roe v. Wade, yet she was confirmed with almost unanimous support. Her academic and judicial qualifications were also sterling, and that was the only basis upon which they judged her right to be confirmed. I believe that this is part of what is meant by the Constitution’s directive that Supreme Court justices are to be confirmed with the “advice and consent” of the Senate, i.e., the President who has been elected by the electoral college has thereby earned the prerogative of nominating an individual for the Supreme Court. As long as the nominee demonstrates a knowledge of the law and a judicial temperament, the nominee deserves to be confirmed, regardless the nominee’s overall judicial philosophy. This is not the same as rejecting a nominee who is a textualist/originalist who also admits during the confirmation hearing that s/he believes that a particular Supreme Court decisions was wrongly decided and s/he would vote to overturn it., something Judge Barrett scrupulously refused to state, since it demonstrate she had violated the Judicial Canons of Ethics by prejudging a case.

MS said...

Here is an excellent analysis of the legal jeopardy Il Duce will face, both criminally and civilly, if he loses the election:

https://www.cnn.com/2020/10/17/politics/trump-election-legal-reckoning/index.html

Il Duce will likely retire to Florida if (when?) he loses the election, and will fight extradition to New York, a fight he will likely lose. As Joe Louis said, “You can run, but you can’t hide.” Won’t it be fantastic seeing Il Duce being arraigned in a New York court wearing an orange jumpsuit to match his hair!!

LFC said...

MS
We'll agree to disagree on this point.

I do think a nominee's philosophy, coupled with the way in which he/she might predictably shift the Court's ideological or jurisprudential balance, is an appropriate ground on which to vote no.

Barrett herself has said in writing, and repeated during the hearing, that there "is room for" competing jurisprudential approaches in the make-up of the Court. It's not a big leap from that position to the view that there should be a rough balance between approaches as represented by the Justices' inclinations. But I realize this is debatable.

Btw, M. Tushnet's _Red White and Blue_ (1988) contains a good critique of originalism, though there I'm sure there are many more recent ones available.

LFC said...

Correction: shd read "though I'm sure"

Robert Paul Wolff said...

Samuel, Welcome to the blog! I will check them out.

MS said...

LFC,

Let me turn the tables a bit and ask you the following: Had Hillary Clinton won the election and re-nominated Merrick Garland for the Supreme Court, or, if the still Republican Senate refused to confirm him, and Pres. Clinton just kept re-nominating other moderate to liberal nominees, resulting, eventually in a 5-4 liberal S. Ct.; and then, assuming J. Kennedy retired (something he may have not done given the predictable consequences) and President Clinton nominated a liberal candidate for the S. Ct. – former President Obama, for example – which would shift the Court to a 6-3 liberal majority, would you still contend that maintaining a balance on the Court would be a valid reason for voting not to confirm the liberal nominee, despite his or her sterling qualifications from an academic/experience point of view? I think not.

Two separate notes. Watching Face the Nation this morning I learned that at Trump’s rally in Grand Rapids last week he joined the crowd in chanting “Lock Her Up!” referring to Michigan Gov. Whittmer who was recently the target of a domestic terrorism plot to kidnap her, put her on trial for treason related to her Executive Order mandating wearing face masks in public, and then executing her. So, the President of the United States was publicly advocating domestic terrorism against a duly elected government official – which, it seems to me, constitutes treason under Article II’s impeachment clause, and a federal crime. If I have not said this before – and if I have, it bears repeating – the President of the United States is an asshole. While it is too close to the election to start impeachment hearings against Il Douche, this is an example of the kind of crime committed while in office – in response to Christopher Mulvaney’s question - that, were I the Attorney General after he lost the election, I would indict him for after he left the White House.

Finally, the pundits at the end of the Face the Nation program indicated that it is still possible for Il Duce to win the election under certain scenarios – and a key state in that outcome they indicated is – sorry, Prof. Wolff – North Carolina, which although is a tight race, they predicted is going to go for Trump. And they are using Judge Barrett’s expected confirmation to rally the Republicans to vote in person. So, it is still nail-biting time.

jeffrey g kessen said...

How dare you compare assholes to Trump .I've never been so offended. We assholes have our pride. Trump is much more of an ass-wipe---an unclean rag fit to be flushed.

Anonymous said...

Pinochet tortured, murdered, and disappeared thousands of people, and no one really disputes that. Trump is a loudmouth and twitter bully - not even close to being in the same league. Get a grip. Compare apples to apples at least, otherwise you diminish the crimes of actual tyrants and make yourselves look ridiculous.

LFC said...

MS

Yes, I think my position is that voting to prevent a 6-3 "liberal" majority is valid, just as voting to prevent a 6-3 "conservative" majority is valid. (Of course as a matter of historical fact SCOTUS has more often leaned conservative; the Warren Court was an exception.)

Christopher J. Mulvaney, Ph.D. said...

MS - Thank you for your response. My knowledge of the law is limited to the Social Security Act, specifically the Titles establishing social welfare programs and their regulations, e.g., Title IV - welfare assistance and child welfare, Title V - Maternal and Child Health, Title XIX - Medicaid, etc. Repairing the damage will take years, and certainly not all damage can be repaired. At least we can be assured that state charges can and will be brought against Trump enterprises. Stay healthy!

Christopher J. Mulvaney, Ph.D. said...

Anonymous,
Trump is more than a twitter bully and loudmouth.There is a compelling case that can be made that Trump’s inaction re the pandemic has lead to tens of thousands of deaths that couple otherwise have been avoided. Between that and the use of separating children from their parents at the border to deter immigrations, Trump is qualified to be included in the group of mass murders. Let’s not o gloss over Trump's barbarism.

MS said...

LFC,

Wow, I did not expect that answer. At least you are not a hypocrite, and that says a lot.

Just to be clear, if I were a senator, I would vote against confirming Judge Barrett, not because of her judicial philosophy, but because I do not believe when push comes to shove, that she will be able to separate her personal religious beliefs from her obligation as a Justice no to allow her religious beliefs to influence her decision making.

And if Hillary had won the election, and I were a senator, I would have voted to confirm both of her liberal judicial nominees and would have rejoiced in having a 6-3 liberal Supreme Court. But, unfortunately, that will never happen in the remainder of my life, and perhaps not in my daughter’s life either.

Jerry Fresia said...

Even as an Eeyore, I found this to be terribly moving.....

https://www.youtube.com/watch?v=IiydluD0PyM&feature=youtu.be

MS said...

Thank you for the link, Jerry. It will feel good to be able to feel a bit more proud of our country after November 3.

Last night, as I drove to visit my daughter who lives just outside of Ann Arbor, I played over and over Billy Bragg’s CD “Internationale” as inspiration for the upcoming election. And while all of the songs on the CD are poignant and moving, there is one song that I wait for with particular anticipation, his tribute to Phil Ochs titled “I Dreamed I Saw Phil Ochs Last Night,” sung to the tune of the labor anthem dedicated to Joe Hill:

I dreamed I saw Phil Ochs last night
Alive as you and me
Says I to Phil “You’re [44] years dead”
“I never died” says he
“I never died” says he

The music business killed you Phil
They ignored the things you said
and cast you out when fashions changed
Says Phil” But I ain’t dead”
Says Phil “But I ain’t dead”

The FBI harassed you Phil
They smeared you with their lies
Says he “But they could never kill
What they could not compromise
I never compromised”

“Though fashion’s changed and critics sneered
The songs that I have sung
Are just as true tonight as then
The struggle carries on
The struggle carries on”

When the song of freedom rings out loud
From valleys and from hills
Where people stand up for their rights
Phil Ochs is with us still
Phil Ochs inspires us still.

I suspect I am not alone in experiencing the phenomenon of increased, inexplicable sentimentality as I age. I teared up several times as I repeatedly listened to this song. And I reflected on the different paths that his and Bob Dylan’s lives had taken on the two roads that diverged in that wood they once shared. Dylan succeeded in transitioning from writing and singing protest songs to writing and singing folk rock ballads, versus Phil Ochs who could not, or would not, make the transition as protest songs lost their allure for the listening public. While Dylan went on to win the Nobel Prize for Literature, Phil Ochs died by his own hand in 1976. But his spirit and his songs do, indeed, inspire us still. And on November 4, I look forward to blasting from my stereo Ochs’ “I Ain’t Marching Anymore,” and Dylan’s “The Chimes of Freedom.”

Jerry Fresia said...

MS....thanks for the sentiment