Guardians of Democracy

100 days in, let’s see what the Trump Administration has accomplished.  I’m not talking about legislative or other victories.  I’m talking about progress toward achieving the long con’s goals.  We are not totally sure what the aim of the long con is, but we can guess: To gain personal wealth and power, to keep Putin happy, and to dismantle the government.  Despite not having accomplished much else during its first 100 days, the Administration has, actually, made great progress toward all three goals.

Personal Enrichment —  Where to begin? The free publicity Trump’s privately owned — by him — club in Florida gets as “the Southern White House”? The huge incentive foreign and domestic business men and political operatives have to book rooms in Trump hotels — particularly the one in Washington, D.C.?  Trump’s refusal to divest himself of his family’s holdings and his insistence that, as President, he can’t have conflicts of interest go a long way to achieving the goal of enriching himself and his family.  Congratulations, Mr. President.

Keeping Putin happy —  Whether Trump is a knowing or unknowing tool of Putin, it is not hard to see how a weakened America on the world stage benefits the Russian leader:  Russia can emerge as the only Superpower, and can make further inroads into a weakening and shaky Europe.  Trump’s failure to fill most State Department posts, his proposed budget, which cuts State Department funds and boosts military spending, his trash talking of NATO and the European Union, and his apparent embrace of emerging fascists and dictators in places like France and Turkey play run into Putin’s hands.  Well done, Mr. President.

Deconstruction of the Administrative State —  Bill Moyers said it best, I think:  “Donald Trump may be a racist, misogynist, sexual predator, liar and bully, but he is still president of the United States, and we underestimate him at the nation’s peril. Viewed in isolation, his policies seem idiosyncratic and incoherent. Viewed in context, they reveal a strategy to plunder the government of what is profitable to Trump’s family and minions and leave what remains smoldering in ruins.  At its best, government saves the environment from polluters, prevents companies from exploiting consumers, safeguards individuals against invidious discrimination and other forms of injustice, and lends a helping hand to those in need. None of those principles guides the Trump/Bannon government.” http://billmoyers.com/story/trump-100-days-of-deconstruction/.  You should be proud, Mr. President.

Of these three goals, the one I am least worried about is the first one.  Don’t get me wrong, the fact that Donald Trump and his family are getting even richer than they already are on the backs of the American people is disgusting.  I strongly support all efforts underway to hold Trump accountable for his massive conflicts of interest.

But rich Republican politicians getting richer by being in office is hardly new, nor is it surprising.  Take a look at our current Secretary of Health & Human Services, Tom Price as a recent example:  when he was in Congress, he bought stock in a company and then authored legislation that benefited that very company, thus enriching himself.  https://www.usatoday.com/story/news/politics/2017/02/02/hhs-nominee-tom-price-bought-stock-then-authored-bill-benefiting-company/97337838/.

So yeah, Trump’s conflicts of interest are troubling, but that’s not what keeps me up at night.  What keeps me up at night are the White House’s other two achievements:  Trump’s foreign and domestic policy continues to undermine our credibility and authority around the world, thus rendering the world increasingly unstable.  And whether driven by Steve Bannon or Jeff Sessions or his own fragile ego, Trump is succeeding in undermining faith in our democratic institutions in ways that are terrifying.

In his recent column, David Brooks noted that while running for office, “Donald Trump violated every norm of statesmanship built up over these many centuries, and it turned out many people didn’t notice or didn’t care.” https://mobile.nytimes.com/2017/04/21/opinion/the-crisis-of-western-civ.html?Brooks goes on to cite a study published in The Journal of Democracy, which found that “the share of young Americans who say it is absolutely important to live in a democratic country has dropped from 91 percent in the 1930s to 57 percent today.”

That is a terrifying statistic on its own, made even more terrifying by the actions of this Administration when it comes to safeguarding our own Democracy.  The Trump Administration’s casual — if not criminal — relationship with the truth and facts; its willingness to undermine the credibility of the media and the authority of the Judicial Branch; and its failure to maintain the most basic levels of transparency in governing pose real threats to our already shaky democratic institutions.  Trump and his cronies may not have had any legislative victories or foreign policy wins, but don’t imagine that damage has not been done.

The good news is, for every action there seems to be an equal and opposite reaction.  As the Washington Post noted in one of its pre-100 days analyses:  “The framers of the Constitution knew that local militias, rooted in their communities, were motivated to defend liberty not as an abstraction but as a face-to-face experience. We are seeing today the spontaneous emergence of networks that are like civic militias: locally rooted webs of citizen lawyers, citizen journalists, citizen scientists, citizen artists and citizen preachers, self-organizing to defend freedom on a moment’s notice.” https://www.washingtonpost.com/opinions/trumps-most-striking-accomplishment-so-far/2017/04/24/904f71e2-23b5-11e7-bb9d-8cd6118e1409_story.html?utm_term=.bb53ed72147a

So yeah, these first 100 days have been damaging to our country, and the next 100 will no doubt be as well.  And the 100 after that.  But we all know what to do. Trump and his cronies — and his base — might not care about Democracy, but we sure do, and for now, we are its guardians.  On December 8, 1944, Winston Churchill said this about Democracy.  It seems particularly important today:

Democracy is no harlot to be picked up in the street by a man with a tommy gun. I trust the people, the mass of the people, in almost any country, but I like to make sure that it is the people and not a gang of bandits from the mountains or the countryside who think that by violence they can overturn constituted authority.

https://www.churchillcentral.com/quotes?toggleFacet=iid-chc-24229

Keep paying attention, my friends.

100 Days of Pointing and Screaming

Almost 100 days in, the Emperor still has no clothes.  We can all see that now, and plenty of people are noticing.

I’m not talking just about the hundreds of thousands of people who have marched in April alone to protest the Administration’s policy on climate change, and Trump’s refusal to release his tax returns.

And I’m not talking just about the thousands who turn up every week in congressional district offices demanding that elected officials answer for their failure to oppose Trump’s policies on health care and tax reform and immigration, etc.

I’m also talking about the most recent NBC News/Wall Street Journal poll which found that on the Russia -Trump scandal alone, 73% of the country want an independent investigation.  http://www.nbcnews.com/politics/first-read/poll-73-back-independent-probe-russian-election-interference-n750161. You can’t get to 73% without including at least some former or current Trump supporters.

I’m also talking about what John Cassidy described in The New Yorker as “among [Trump’s] biggest achievements as president”: the mobilization of Americans “who previously didn’t pay very much attention to what happens in Washington. He has politicized many formerly apolitical people.” http://www.newyorker.com/news/john-cassidy/the-trump-resistance-a-progress-report

The con-men and henchmen are still at it, spinning the lies and playing out the con.  E.J. Dionne’s column last week lays out beautifully the depth and reach of the con — read it here:  https://www.washingtonpost.com/opinions/no-mr-president-you-cant-do-what-you-want/2017/04/19/374c8ece-2534-11e7-bb9d-8cd6118e1409_story.html?utm_term=.8c92bf051aa4

Trump has made himself available to receive bribes and kick backs and other financial gain from any number of sources — Mar-a-Lago, Trump Hotel in D.C., Trump Hotel in Istanbul, any of the properties his family business owns.  U.S.A. Today reports that “anyone could potentially buy multimillion dollar condos from President Trump.” https://www.usatoday.com/story/news/2017/04/20/trump-owns-250m-condos-and-you-could-buy-one/100566302/

The Administration and the Resistance are locked in what feels like mortal combat to preserve American Democracy.  And it is becoming increasingly clear that those institutions we have looked to in the past to resolve crises in the Executive Branch are unable or unwilling to perform their Constitutional duties to do so now.

The House Intelligence Committee’s investigation into the Trump-Russia scandal has completely fallen apart; and the Senate Intelligence Committee’s investigation may not be far behind.  http://www.businessinsider.com/senate-intelligence-committee-trump-russia-probe-stalled-2017-4.

Meanwhile, the New York Times reported over the weekend on James Comey’s handling of the two investigations the F.B.I. were conducting before the election — the one we all knew about into Clinton’s emails; and the one we did not know about into the Trump-Russia connections.  As the Times notes, “In the case of Mrs. Clinton, he rewrote the script, partly based on the F.B.I.’s expectation that she would win and fearing the bureau would be accused of helping her. In the case of Mr. Trump, he conducted the investigation by the book, with the F.B.I.’s traditional secrecy.” https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html.

Can we really trust this F.B.I. to handle the current F.B.I. investigation into Trump and Russia without regard to political pressure or loyalty to the Administration? I don’t.

So, it’s left to us, my friends.  The Resistance.  It is up to us if not to stop the behavior outright, to point it out at every turn.  Not just the Russia stuff, but the other stuff too — the conflicts of interest, the cozying up to dictators, the nepotism, the promise-breaking, the lying, the lack of accountability.  All of it.

This man might be our President — possibly for the next 3 plus years — but our country is still a Democracy.  And it appears to be up to us to keep it that way.

Democracy is Hard

As we continue to play the “stupid or nefarious” game to sort through the Trump Administration’s missteps – which is to say, everything it does – let’s not lose sight of the other two branches of our increasingly dysfunctional government.

Neal Gorsuch was seated last week as the ninth member of the U.S. Supreme Court.  It remains to be seen what kind of a jurist he will be, but his path to that seat is to me the most glaring example so far of the Republican leadership’s cynical and instrumentalist hypocrisy.  I can’t imagine the country’s trust in the highest Court in the land remains as it was the day before Justice Scalia died.

So the Executive Branch is either stupid or nefarious.  The Judicial Branch’s highest office has been polluted by partisan and jaded self-interest. Let’s take a look behind Door Number Three:  the Legislative Branch, i.e. the United States Congress.

Republican leadership in the House is Speaker Paul Ryan; the Senate is run by Majority Leader Mitch McConnell.  Minority leaders of the House and Senate are Representative Nancy Pelosi and Senator Chuck Schumer.  As we know, Paul Ryan led his party to total and humiliating defeat of the bill to “repeal and replace” Obamacare; and now concedes that the long-promised Republican Tax Reform is likely to see the same fate. http://jamiedupree.blog.ajc.com/2017/03/26/after-health-care-bill-failure-trump-has-few-legislative-victories-on-the-horizon-in congress/  and http://www.csmonitor.com/USA/Politics/2017/0325/Health-care-bill-failure-spotlights-Republican-leadership-challenges-video.

Meanwhile, in the Senate, Mitch McConnell couldn’t rally enough votes in his own party to confirm Betsy DeVos as Education Secretary; resulting in an unprecedented tie breaking vote by the Vice President in order to get her confirmed. http://thehill.com/homenews/senate/318262-senate-confirms-devos-with-tie-breaking-vote-by-pence. And of course more recently, McConnell had to “tear up the Senate’s own rules” on Supreme Court confirmations in order to get Gorsuch confirmed without any Democratic support. http://www.chicagotribune.com/news/nationworld/ct-supreme-court-nominee-vote-20170406-story.html.

I’m confused.  Don’t the Republicans control both the House and the Senate? Why yes, yes they do:  in the House, the Republicans hold 239 seats to the Democrats’ 194; while in the Senate Republicans have 51 seats to the Democrats’ 46 (plus two Independents who generally caucus with the Democrats).  And didn’t the House vote over 50 times during the Obama Administration to repeal Obamacare? Yes.  http://time.com/4712725/ahca-house-repeal-votes-obamacare.

So . . . what’s going on?

We know now about the Republican plot to obstruct President Obama before he even took office.  As reported by Mike Grunwald in Time back in 2012, there were “secret meetings led by House GOP whip Eric Cantor (in December 2008) and Senate minority leader Mitch McConnell (in early January 2009) in which they laid out their daring (though cynical and political) no-honeymoon strategy of all-out resistance to a popular President-elect during an economic emergency. “If he was for it,” former Ohio Senator George Voinovich explained, “we had to be against it.” http://swampland.time.com/2012/08/23/the-party-of-no-new-details-on-the-gop-plot-to-obstruct-obama/

And indeed, the 112th Congress — which was sworn in in January, 2011 — was the least productive in our nation’s history. http://www.washingtontimes.com/news/2013/jan/9/capitol-hill-least-productive-congress-ever-112th-/.  In fact, the 80th Congress, which Harry Truman dubbed the “do-nothing congress” in 1948, actually passed more than 900 bills during its two years in office.  The 112th, on the other hand, managed to enact only 283 laws.  The 113th Congress — sworn in in January, 2013 — wasn’t quite as unproductive as its predecessor.    It eked out a whopping 296 bills, more than 50 of which named post offices and other federal buildings. https://www.washingtonpost.com/news/the-fix/wp/2016/12/20/the-do-nothing-congress-graduates-to-the-do-nothing-much-congress/?utm_term=.255a7f65d96a  Things don’t get much better in the 114th Congress — the one sworn in in January, 2015.  Legislators in those years managed to enact only 329 laws.  http://www.huffingtonpost.com/entry/the-gilded-age-of-congress_us_58ee7144e4b048372700d4c2

The folks who rode into Washington in 2012 and 2014 and 2016 did so on Tea-Party infused waves of anti-government/anti-Obama energy.  Much of that energy centered on the idea that seasoned, well-trained politicians could not effectively govern the American people.  And the American electorate bought it. Being an “outsider” — i.e. someone who had little or no experience in Washington — became the most important criteria for one seeking public office.  And having “inside the beltway” experience was seen as a major detriment.

So now Congress is filled with these so-called “outsiders” — elected officials who have no experience actually governing.  And now that they are in a position to govern – rather than just to say “no” to those who really want to govern – they have no clue how to make anything happen. http://www.rollcall.com/news/policy/inexperience-weakens-congress-white-house

As we keep hearing, policy-making is complicated.  Health care is complicated.  The Tax Code is complicated. Korea is complicated.  It turns out that governing takes work, and governing in a Democracy even more so.

On the Rachel Maddow show the other night, Elizabeth Warren warned that “we can’t make Democracy a once every four year horse race . . . It can’t be a spectator sport.” To which Rachel replied, “you’re talking about Democracy being about policy not about candidates.  You’re talking about moving people already in office.” http://www.msnbc.com/rachel-maddow-show/watch/rachel-maddow-4-19-17-episode

Right.  Democracy is not something we stand on the sidelines for.  We need people in our Democracy who want to work hard, who care about their communities and their country; who work for their constituents more than their donors.

So how are we going to build our new, healthy Democracy? Some of us will run for office.  Others will teach our future leaders about civic engagement. The bottom line Warren says, is that “We gotta talk about our own values, what we get up in the morning for and why we fight all day long. . . We have to throw in with each other.  This is our test.  What kind of a people are we and what kind of country are we going to build?” http://www.msnbc.com/rachel-maddow-show/watch/rachel-maddow-4-19-17-episode

Foreign Affairs?!

Damage is already being done. In our lead package, G. John Ikenberry details the harm the administration is inflicting on the liberal international order. Philip Gordon traces how a continuation of the administration’s early course could lead to three different wars. And Robert Mickey, Steven Levitsky, and Lucan Way document the ongoing deterioration of American democratic norms and practices. https://www.foreignaffairs.com/articles/2017-04-17/present-destruction (emphasis added by me)
Much of what Mr. Rose writes echoes concerns raised by members of the liberal and progressive media — including in these very blog pages.  What is extraordinary about these statements, though, is the forum in which they appear.  The Council on Foreign Relations and its magazine, Foreign Affairs, are decidedly not part of the liberal or progressive media.  (And I should know, I grew up under the benevolent eye of the magazine’s then-Managing Editor, Peter Grose!) And Mr. Rose makes that very point in the closing paragraph of his Editor’s Comment:
Foreign Affairs, as its editorial manifesto stated almost a century ago, “will tolerate wide differences of opinion.” As always, our pages and pixels are open to all articles that are “competent and well informed, representing honest opinions seriously held and convincingly expressed.” We will not hesitate to offer readers defenses of administration policy, such as the article by Matthew Kroenig that rounds out the package. But nor will we shy away from offering criticisms and warnings as appropriate. And rarely, if ever, have those criticisms and warnings seemed so urgent and important.” (emphasis mine, again.)
Couldn’t agree more.  And I am heartened to see that very smart people everywhere are as terrified as I am.  Stay tuned for new rounds of “Stupid or Nefarious?” in days and weeks to come.

The Long Game

I have been bargaining against reality ever since November 8th at about 8:30pm Central Time.  Surely, Michigan and Pennsylvania and Wisconsin would right themselves in the final moments? No? Okay, well surely there will be recounts that will prove election rigging and avert disaster? No? Okay, well the “faithless electors” will come through in December to align the electoral college numbers with the popular vote? No?? Well then, Russian hacking? Come on! Really, he’s going to be the President? Really, he’s going to be the President.

But I continued to bargain.  Yes, he’s President, but he hasn’t accomplished anything that can’t be undone, right? Watch what he does, not what he says.  The Courts are blocking all the long term stuff while Congress and the FBI work to get rid of him.  I even made a foolish foolish bet with a student that he wouldn’t last the full first 100 days.  Needless to say, she’s looking forward to a nice expensive lunch on me.

Gorsuch has been seated on the Court.  ICE agents feel a new “freedom to deport.” https://www.nytimes.com/2017/02/25/us/ice-immigrant-deportations-trump.html?_r=0. Trump has bombed Syria and Afghanistan, and has moved warships to the Korean Peninsula.  The lasting effects of any one of these actions is devastating.  And that’s just off the top of my head this morning.  Here are some of the other things Trump’s presidency has “accomplished”:

  • a level of nepotism never before seen in any branch of our Government.  I’m referring of course to Trump’s two closest and most powerful advisers, Ivanka Trump [Kushner] and Jared Kushner.
  • a new freedom to lie to the Senate, the FBI, the media with no real consequences.  I’m referring not only to the usual suspects here — Attorney General Jeff Sessions, fired National Security Adviser Michael Flynn, Press Secretary Sean Spicer, Senior Adviser Kellyanne Conway — but also to our current EPA chief, Scott Pruitt, who stated in sworn written testimony that he had never used a private email server to perform government business.  That has since been proven to be false.  And also to our current Education Secretary, Betsy DeVos who swore in her confirmation hearings that she had never been involved in her family foundation, which fights against LGBTQ rights.  In fact, she had been listed as Vice President of the foundation’s board for 17 years.  And also Health and Human Services Secretary Tom Price and Treasury Secretary Steven Mnuchin, both of whom made sworn statements in their confirmation hearings that have since been shown to be false. http://www.motherjones.com/politics/2017/03/trump-cabinet-members-lied-under-oath
  • the abandonment of governance free from major conflicts of interest. Here, I’m referring not only to Trump’s own refusal to disclose — let alone divest himself of — his family’s financial holdings; and not only to his refusal to release his tax returns; and not only to his senior advisers’ ongoing involvement with the Trump family business while advising the President; but also to the conflicts of interest embedded in the relationship Trump has with the likes of Carl Icahn, whose position in the administration raises “‘alarming’ questions about potential conflicts of interest with his stakes in the biofuels and pharmaceutical industries.” http://fortune.com/2017/03/27/carl-icahn-trump-conflict-of-interest/
  • An unprecedented lack of transparency in the Executive Branch.  I’m referring here to a wide range of actions taken by the new administration — from the President’s “war on the media” and the Press Secretary’s barring of select media outlets from the White House Press Room; to the failure to fill hundreds of Executive Branch positions that require Senate confirmation; to the announcement last week that the White House would no longer release its visitor logs.  The effect, if not aim, of all of these actions is to insulate the Oval Office and the Executive Branch from public scrutiny and critique; while allowing members of Trump’s increasingly small inner circle essentially free reign over policy and practice. 

    The time for bargaining is over.  I have to accept that this man is president and that his administration has already done and will continue to do lasting, if not permanent damage not only to individual Americans and those who love them; but also to our very system of government and collective understanding of what it means to be an American.

For me, government transparency and accountability are the two hallmarks of our Democracy.  Without three equally strong and trustworthy branches of government working together in good faith, openly and with public scrutiny, I believe that our Democracy will wither and eventually die.  And who knows what will replace it.

I no longer believe that any person or institution can keep this train from leaving the station; but I am still bargaining on the train’s eventual derailment.   The Resistance has the passion and determination to hold our leaders — Democrats and Republican, Federal, State and Local — accountable for their collusion in or resistance to the destruction the Trump train is doing to our country.

We have to keep paying attention. Even when we lose on the big things, we have to keep yelling about them.  And we have to keep pointing out what seem to be small things, even as the rest of the world moves on to scream about warships and MOABs.  We cannot lose our appetite for truth and accountability; we cannot stop demanding both; and we cannot stop believing that our resistance matters.  We all know what Margaret Mead has to say on the matter.

Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.

I Don’t Want to Do This Anymore

Do you remember November 8th? Not the night, I mean the day.  I walked to the polls with my spouse. It was beautiful and sunny; I think maybe I wasn’t even wearing a jacket.  We ran into a neighbor on our way — as we approached her, I raised my arms above my head in celebration, and felt moved to hug her and invite her over to watch the returns.  That moment stays with me, frozen in time like a fossil.  That was what I used to be like, the fossil reminds me — I used to walk down the street bursting with confidence and warmth and openness, eager to invite others into my joy.

When I catch a glimpse of that fossilized moment, I cringe.  How arrogant I was. How naive.  How stupid.  Remember when the UK voted for Brexit last summer? How, as Peter Sagal said recently on Wait, Wait, Don’t Tell Me, “we laughed and laughed.”?  Yeah.  I remember.  How arrogant we were.  How naive.  How stupid.

November 8th changed me.  As I know it did all of you — all of us.  I no longer walk down the street bursting with confidence and warmth and openness.  No.  I walk down the street seething with anger and frustration and despair.  It’s always there — in the corner of my consciousness.  In the moments before I am fully awake in the morning, my brain feels around for the things I am worried about.  It used to be my kids or my spouse or my parents or my pets.  But now, sure, I worry about them, but the thing my brain latches on to every single morning before I am even fully awake is what happened on November 8th.

I don’t think I’m in denial or wallowing or depressed or anything like that.  I think I am just alive.  As the old bumper sticker cautions “if you aren’t outraged, you aren’t paying attention.”  I am someone who uses information to calm my anxiety.  I always have been.  Like many of you, I have tried to curb my news diet.  I have tried to take breaks from Facebook and Rachel and NPR.  In fact, I went on vacation last week and didn’t listen to anything for a whole five days. But guess what? Unlike when I forced myself not to look at pictures of oil soaked ducks after the BP Deep Water Horizon disaster, disconnecting as I did last week doesn’t help.  It actually made me feel even worse.  Not knowing is worse than knowing, it turns out.

So.  What do we do? I write this blog.  And sometimes I admit that I don’t want to. And that I really wish I could stop.  But really what I want is to find that fossilized person again, to be able to walk down the street with that confidence and warmth and openness.

Let’s stick together, my friends.  That’s the only way through this nightmare.

I’m Still Talking About the Supreme Court

I posted on Monday about my despair about the Gorsuch confirmation and all it represents, with promises to dive deeper in subsequent blog posts.  But today, as I sat down to start writing, I thought, “this will seem like old news.  People have moved on.  I should write about something else, like Sean Spicer or Syria or FISA warrants or . . . or . . . or . . .” And then I remembered one of the reasons I started this blog in the first place – to keep a record of what is happening so it doesn’t ever start to seem normal .  The fact that we are no longer talking about the Gorsuch confirmation and what led up to it is, in itself, terrifying.

So no, I am not going to write about something more timely – the crisis or drama du jour.  I am going to tell the story of the Gorsuch confirmation from the beginning so that we all understand and remember exactly what it represents.

Let me first respond to the argument that I myself have made that Gorsuch’s confirmation isn’t that bad because the actual balance of power on the Court  — as between liberals and conservatives – hasn’t changed.  Scalia was the Court’s leading conservative, and Gorsuch is just replacing him.  So we don’t have to start freaking out until there is another vacancy. Then if it is Breyer, Sotomayor, Kagan or Ginsburg whose seat needs to be filled, the balance of power will shift.  Indeed, even if Kennedy’s seat becomes vacant, a Trump replacement could be devastating.

So yes, things might indeed become much worse.  But that doesn’t mean there is nothing to freak out about now.  Separate and apart from the fact that Gorsuch is among the most conservative Justices ever to be appointed, his ascension to the Court represents an unprecedented break in our system of governance.

On February 13, 2016, we learned that Antonin Scalia had died, either earlier that day or late the night before.  To remind us all what else was going on at that time, Republicans Donald Trump, Ted Cruz, Marco Rubio, Jeb Bush, Ben Carson and John Kasich were preparing for the South Carolina primary, and Jim Webb had just dropped out of the Democratic primary race.  President Obama had just begun his final year in office.  He had 11 months and one week left.

Within an hour of the public announcement of Scalia’s death, Senate Majority Leader Mitch McConnell indicated that Obama would not be allowed to fill the vacancy.  He went on to say the Senate would not even meet with anyone Obama tried to nominate, let alone hold hearings on the nomination.  He was true to his word.  Obama’s nominee, Merrick Garland — whom the Senate had confirmed unanimously to the D.C. Court of Appeals several years before — was never invited to meet with any Republican senators, let alone given a hearing on his nomination.  The seat remained empty for over thirteen months, until last Monday.  McConnell has called keeping Obama’s pick off the court “one of my proudest moments.” http://abncnews.com/2016/11/22/video-mitch-mcconnell-one-of-my-proudest-moments-was-telling-obama-i-wouldnt-do-my-job-until-he-left/

Needless to say, such partisan practice has never before occurred when nominating and confirming Supreme Court Justices.  According to Article II, Section 2, Clause 2 of the U.S. Constitution, it is the President’s job to nominate, with the “advice and consent” of the Senate.  The Senate is not given the right to prevent a nomination from going forward other than to vote against it.  McConnell’s refusal even to meet with a candidate nominated by the President is unprecedented. https://www.nytimes.com/2016/06/14/us/politics/obama-supreme-court-merrick-garland.html

So already we’re in uncharted territory — what is the new rule for when Presidents will receive the advice and consent of the Senate on their Supreme Court nominations? Is it only during election years that the Senate will refuse to meet with or hold hearings on a President’s nominee? And if so, what about “off-year” elections — for Senate and Congressional seats, but not for the Oval Office? Will the Senate advise and consent during those election years?http://nymag.com/daily/intelligencer/2017/04/mcconnell-rule-that-blocked-garland-not-actually-a-rule.html

Or maybe it has nothing to do with elections.  Indeed McConnell’s subsequent behavior suggests that the new rule is really that Presidents can expect to receive the advice and consent of the Senate — i.e. can expect the Senate to hold hearings on a nominee — only when the Senate is controlled by the President’s party.

Let’s take a moment to review the history of our Legislative Branch. The House is the heart of our representative Democracy:  each state gets to send a representative to Congress based on the state’s population.  The more populous the state, the more seats that state gets in the House.  The Senate, on the hand, has only 100 members — every state, regardless of population, sends two senators to Washington.  So Delaware and California have exactly the same number of votes in the Senate.

The Senate has always been considered the more deliberative body, with a long tradition of unlimited debate.  The filibuster — where a member can keep debate going by not yielding the floor — has been part of that tradition since the early 1800s.   Another part of that tradition is that Supreme Court nominees must receive the votes of a 60 senators, instead of the simple majority of 51.  These practices allow members of the minority party to have their voices heard without being drowned out by the majority.

Until last Thursday, when McConnell used the so-called “nuclear option” to change Senate Rules to allow Supreme Court nominees to be confirmed with a simple majority.  And just like that, centuries of Senate tradition of deliberation and respect for minority voices and civic discourse is gone.  Why else is it called the “nuclear option”? By definition, McConnell’s action was designed to blow up the Senate.  And it did.

From now on, the President can look forward to having his Supreme Court nominees sail through to confirmation by only 51 Senators, as long as they’re on his side.  What can we imagine will happen to a Trump nominee if the Democrats manage to take back the Senate in 2018?  Or if the Democrats take back the White House in 2020, but lose the Senate? Will we just get used to having the Supreme Court sit with only eight Justices? Or what if there are two vacancies in one term? The Senate will simply let those seats remain unfilled until they get someone in the White House they like?

This is not how a functional democracy works.  We have a broken Executive Branch, a broken Legislative Branch, and, now, a broken Judicial Branch.  The Gorsuch confirmation has made that crystal clear.

We can’t let it become normal.

Mourning American Democracy

I know elections have consequences.  I grew up in New York City in the 1970s, came out as gay in the 1980s and marched against the first Gulf War in the 1990s.  I count Mayor Koch and Presidents Reagan and Bush I among the people responsible for who I am today, for better or for worse.  I know that elections have consequences.

So why was it so devastating on Friday morning when the Senate confirmed Neil Gorsuch to become the next Supreme Court Justice; and only slightly less so when he was sworn in this morning?  Did I think it would end otherwise?  I hate to admit it, but part of me really believed that we wouldn’t get to this point

I have been holding on to the hope – chimerical I now have to admit – that some fair-minded Republicans in Congress care about their country more than their party; or at least care more about their party than about their president or their congressional leadership.  I believed that the various probes into the Russia-Trump connections would raise enough concerns in enough of those fair-minded elected officials that we would all agree to put things on hold until it could all be sorted out.  Not all things, but things that couldn’t be undone.  Like a lifetime appointment to the nation’s highest court; which also happens to be the enforcement and justice branch of the U.S. Government.

Until now, the things we have lost on, that Trump has won – his various cabinet appointments, e.g. — have been reversible, by the courts or by Congress, or by the voters.  And much of what Trump has tried to do – his Muslim and Refugee bans, his repeal of Obamacare, his attempt to install a registered foreign agent as National Security Advisor – has been stopped by one of those countervailing forces.

But not this.  Gorsuch has been nominated, confirmed, and now sworn in to serve on the Supreme Court of the United States for the rest of his life.  Short of misconduct on his part while in that role, he cannot be removed from his seat by anyone.  Even if Trump is impeached and his entire administration has to leave office in disgrace, he has succeeded in forever changing one of the branches of our government; and there is nothing we can do about that.

About a month ago, I wrote:  “even if (when?) Neil Gorsuch becomes the new Associate Justice, Democracy will not be dead, the resistance will not be over.  Far from it.  Our success at resisting the Trump and Republican Administration is not measured by how many nominations we block or bills we defeat.  It is measured by our ongoing commitment to inclusive, democratic values as our guide in all actions of resistance.   Neil Gorsuch will become the new Associate Justice only after we have made a lot of noise geared toward holding those in power accountable:  not only for nominating/appointing a jurist who falls well outside the mainstream of American legal thought and practice; but also for failing to abide by basic rules of democratic governance.” http://profgrose.com/nobody-panic/

All that is true.  And I will write more about it in the coming days.  But for today, I mourn for our country and for our future.  I mourn for the breakdown in the democratic institutions that make our country what it is; and that now, I fear, are dysfunctional tools of power hungry autocrats.  The Supreme Court was the last vestige – the one branch that seemed to take its constitutional mandate seriously.  And now it too has fallen under the growing shadow cast by an illegitimate Executive Branch enabled by a Legislative Branch driven by nothing more or less complicated than the desire to hold on to power, apparently at any cost.

This is not the American Democracy I believe in.  So today, I am in mourning.

A Message to Those Opposed to “Illegal” Immigration

Thoughts from my brilliant colleague, Liz Keyes at the University of Baltimore School of Law. She spends her days fighting for the rights of immigrants — those both with and without the official papers. In other words, pay attention to what she says:

There should be an equivalent of Godwin’s law for immigration. Like “on any article about any subject, within six comments, someone will say ‘my ancestors came legally through Ellis Island. What part of illegal don’t you understand?'”

Well, when your ancestors came, they didn’t need visas. We didn’t have numeric limitations on migration, and people didn’t need to fit into narrow categories to assert some right to migrate here.

Those rules and regulations did not start until the 1920s, when they began applying to most people trying to come into the country. Except Asians.

But that doesn’t mean that Asians were allowed to waltz into America without documentation. No. On the contrary, all Asian migration was banned. All of it. ALL of it. Am I being clear? Banning migration based on race-explicitly! proudly! boldly! endorsed by the Supreme Court!–was legal in our country for 70 years.

We did want to make sure Mexicans, European Jews, and Italians were clean, healthy, and not too terribly poor. We assumed a lot of our solo women immigrants were probably prostitutes, and made Mexicans pass literacy tests.

People have every right to be proud of their ancestors who took incredible risks and endured all the hardships of leaving home and family to come here. But please honor their memory by understanding that their immigration story occurred in an incredibly different context. Immigration laws are so hard to follow and paths to migration have been made so narrow, the story that might have made YOUR family’s immigration possible is no longer possible today. Indeed your migrant relatives probably have more in common with today’s migrants than you would like to think.

Wait, What?

Okay, let me get this straight:  three members of Trump’s staff — Michael Ellis, from the White House counsel’s office, Ezra Cohen-Watnick, from the National Security Council, and John Eisenberg, also from the National Security Council — provided information to the Chairman of the House Intelligence Committee, Devin Nunes, regarding transition officials being caught and named in intelligence intercepts of foreign targets. https://www.nytimes.com/reuters/2017/03/30/us/politics/30reuters-usa-trump-russia-report.html?_r=0. https://www.washingtonpost.com/world/national-security/three-white-house-officials-tied-to-files-shared-with-house-intelligence-chairman/2017/03/30/de4b8c30-1589-11e7-9e4f-09aa75d3ec57_story.html?utm_term=.4290584e66e5

Interesting, right? Maybe they were whistle-blowers and wanted to get the information to the oversight committee for further action?

But if so, what Nunes did next makes no sense.  Rather than brief the entire committee — or even the ranking Democrat on the Committee, Adam Schiff — about the information he had received, Chairman Nunes instead rushed back to the White House to brief the President on the information — that Nunes had just gotten from the President’s own staff, ON WHITE HOUSE GROUNDS, the night before.

Let’s be super clear about this:  the FBI and the House Intelligence Committee are investigating the Russian attack on our election, and, more specifically, involvement by Trump associates (and possibly Trump himself) with that attack.

For the FBI to share information with the House Intelligence Committee is one thing.  After all, they are both ostensibly on the same side of the investigation.  They are both investigating, in part, the White House.

So for the FBI or the House Intelligence Committee to share information with the target of its investigation — ie the White House — is another thing altogether.  Why would Chairman Nunes take information he had received that directly relates to the Committee’s investigation into the Trump connections with Russia, and present it to Trump himself?

And, even more worrisome to me, why did those three White House staffers have the information to begin with?

Rachel Maddow wondered the same thing:  “What were white house officials doing reading raw FBI intercepts of foreign surveillance that involved top transition officials, and then asking for those names to be unmasked? How on earth would that have come up in the normal course of their duties in the National Security Council, or the White House Counsel’s office? . . . What were they doing monitoring who the FBI was listening in on?” http://www.msnbc.com/rachel-maddow-show#!#full-episodes (at 20:20).

Maddow concludes:  “What it means is the White House appears to be tracking . . . listening in on . . . monitoring the FBI’s investigation of the White House.http://www.msnbc.com/rachel-maddow-show#!#full-episodes (20:58)

Wait, what? The White House is tracking the FBI investigation? Remember my rant a couple of weeks ago about how there’s no one in the government who is actually going to look into this mess? http://profgrose.com/hello-is-there-a-prosecutor-in-the-house/ Well, is there a prosecutor in the House (or the Senate or the Justice Department)?

The FBI is and always has been an independent part of the independent Justice Department.  But here, the White House appears to be tracking the FBI investigation by looking into wiretap claims and requesting raw FBI data.  That seems like a clear and direct violation of that time honored rule of non-interference with Justice Department investigations — including those led by the FBI.

Again, let’s be super clear.  Imagine this were an actual court case (a law professor can dream, can’t she?). Let’s say that the Trump White House is the defendant.  The prosecutors are the FBI and the House Intelligence Committee.  And let’s say some of the evidence includes these FBI intercepts of foreign surveillance

Would the defense team (ie the Trump White House) have access to that evidence? Remember, the FBI is, for the purposes of my fantasy, the prosecutor.  So how would members of the defendant’s staff (e.g. Eisenberg, Ellis and Cohen-Wattnick) have access to evidence collected by members of the prosecution’s staff (e.g. the FBI)?  How would they even know about such evidence?

And would a member of the prosecution team (ie the House Intelligence Committee) provide that evidence to the defendant (ie the White House) without revealing it first to the rest of the prosecution team (ie the rest of the Committee)?

I don’t think you need to be a lawyer to answer those questions. Defendants don’t get access to what the prosecutor has on them until both sides go through the “discovery process” whereby the sides exchange evidence.  If a member of the prosecution team were to go off on his own and brief the defense on some new evidence, that would most certainly be grounds for disciplinary, if not criminal, sanctions against that prosecutor.

But isn’t that what has happened here?

I’ll let Senator John McCain have the last word:  “There’s a lot of aspects of this whole relationship with Russia and Vladimir Putin that requires further scrutiny. And, so far, I don’t think the American people have gotten all the answers. In fact, I think there’s a lot more shoes to drop from this centipede.” http://www.cnn.com/2017/03/12/politics/john-mccain-donald-trump/.

Keep paying attention as they drop.