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How the U.S. Supreme Court Tipped Hard Right – posted 4/26/2020

April 26, 2020 Leave a comment

If you are a liberal or a progressive, it is difficult not to feel a sense of despair about the U.S. Supreme Court. It is not just that the Court is out of touch with the realities of American life. For 50 years now, the Court has consistently favored the very rich and sided against working and poor people. It also has had, at best, a checkered and dismal record addressing racism and sexism.

Although in the edifice outside the Court, the words read “Equal Justice Under Law”, nothing about that institution could be farther from the truth. The message is false advertising. Instead of comforting the afflicted and afflicting the comfortable, the Court has done the opposite. Their project has been the creation of a more unjust America done under the guise of law.

The history of how the Court devolved has been insufficiently appreciated. Probably it is out of a sense of deference and respect for the idea of the rule of law but the Court has escaped the scrutiny it so richly deserves.

In his book, Supreme Inequality, Adam Cohen presents a devastating picture documenting the Court’s last 50 years. He looks at the question of how the Court got so conservative and aligned with the interests of the very rich. It was not always so.

For a period of time in the 1960’s, the progressive justices on the Court led by William J. Brennan, Thurgood Marshall and William O. Douglas played a large role in crafting the ideological direction of the Court. This was the heyday of the Warren Court.

Cohen tells the now-forgotten and hidden story of how the Court switched political direction. While we might think conservative strong-arming in the legal arena is a new story fashioned by Trump and Mitch McConnell, Cohen shows the same dynamic occurred in the transition from the Warren Court to the Burger Court.

Nixon was Trump’s forerunner. He was not an innocent bystander of judicial developments. As was characteristic of his political career, Nixon crossed all kinds of ethical boundaries in his effort to reshape the Supreme Court. From the very beginning of his presidency, Nixon was obsessed with remaking the Court.

The story of how the Supreme Court flipped from liberal to hard right is both about LBJ’s political miscalculation and Nixon’s criminal Machiavellianism.

In June 1968, Chief Justice Warren told LBJ he intended to retire. Johnson decided to nominate a sitting justice, Abe Fortas, as Warren’s successor. Fortas was a close confidant of Johnson’s and often gave him political advice. Although LBJ had legendary political skills, he miscalculated in thinking he had the numbers in the Senate to make Fortas Chief Justice.

At the time, Johnson was a lame duck and his influence was on the wane. Many Southern Democratic senators as well as Republicans balked at Fortas who would have been the nation’s first Jewish Chief Justice. Thurgood Marshall had been appointed to the Supreme Court in 1967 and Senator James Eastland of Mississippi was heard to say: “I could not go back to Mississippi if a Jewish Chief Justice swore in the next president”.

Republican senators opposed Fortas both for being an integrationist on civil rights and for his role on obscenity cases where he had defended First Amendment rights. Senator Strom Thurmond from South Carolina invited his fellow senators to a screening of Flaming Creatures, a porn movie. Fortas had found the movie not obscene. Nixon’s top political aide, Pat Buchanan, called the screening the “Fortas Film Festival”. Thurmond made destroying Fortas his mission

Fortas’s confirmation hearing testimony did not help him. He denied the extent of his relationship with LBJ, a denial that lacked credibility. He was widely seen as an LBJ crony. The fact that Fortas’s hearing was unprecedented did not help him. Never was an already sitting justice on the Supreme Court subjected to questions by the Judiciary Committee.

In the end, the Fortas nomination was defeated by a Senate filibuster. Johnson had to withdraw the nomination. This opened the door to the next president getting to name Warren’s successor.

Even before winning the presidency in 1968, Richard Nixon worked behind the scenes to sink the Fortas nomination. As Pat Buchanan later recalled, “Nixon wanted the Fortas nomination killed but he did not want our fingerprints on the murder weapon”.

Nixon aggressively targeted for replacement the older liberal justices on the Court. According to Cohen, Nixon weaponized the resources of the White House and the Justice Department to try and threaten liberal justices into resigning. He was not content to wait for the Court’s membership to turn over.

Nixon went after Fortas first, knowing he was weakened by his defeated Chief Justice nomination. He pushed his corrupt Attorney General John Mitchell into investigating Fortas. Nixon aides leaked information to Life Magazine about Fortas’s relationship with Louis Wolfson, a wealthy investor and a former client of Fortas. The Life piece prompted sharp public criticism of Fortas.

Mitchell also pursued an investigation into Fortas’s wife, Carolyn Agger. Agger was a tax attorney. John Dean said Mitchell’s pursuit of Agger was “purely a means to torture Fortas”.

Nixon also worked with FBI Director J. Edgar Hoover to line up allegations that Fortas had had a gay relationship before he was on the Court. The FBI had an informant who was going to put that story out there and although that story was not publicly released it was used to pressure Fortas.

Nixon aimed to get Fortas to resign rather than to go the impeachment route. Impeachment would take too long. Nixon sent Mitchell to the Supreme Court to work Warren who was still Chief Justice. Mitchell brought investigative papers about Fortas’s relationship to Wolfson to a meeting with Warren. Nixon then went on a charm offensive, flattering Warren and holding an event in his honor at the White House.

Warren caved in to the Nixon pressure. He called a meeting of all the justices and Fortas had to defend himself. The following day, Fortas resigned from the Court. Even though there were only vague allegations against Fortas, the barrage of accusations pushed Fortas over the edge. The New York Times called it an “ugly squeeze play”.

Nixon’s team was extremely proud that they manipulated a liberal Chief Justice to drive a liberal justice off the Court. This gave Nixon two High Court appointments that could cause a sea change in the Court’s balance. Fortas never broke any law but the Nixon pressure campaign worked. Warren Burger, a law and order conservative became the new Chief Justice.

Fortas’s resignation was not the end of Nixon’s power play. He wanted to remove Justice Brennan but he lacked ammunition. He then targeted Justice Douglas, who was quite the character. As Cohen wrote,

“The most liberal justice, Douglas was an iconoclast in law and life. At age seventy, he was married to his fourth wife, Cathy, a twenty-five year old law student – a union that attracted attention in legal circles and beyond.”

Nixon got the IRS to audit Douglas’s tax returns. He had Hoover wiretap Douglas’s telephone. The FBI also investigated Douglas’s ties to Albert Parvin, a Las Vegas casino magnate. Nixon pushed Vice President Agnew and House Minority Leader Gerald Ford to speak out against Douglas.

Ford called Douglas a radical. In a speech on the House floor, Ford held up a copy of Evergreen Review, a countercultural magazine that had excerpted a book by Douglas and called it “perverted” and “downright filthy”.

The Nixon efforts against Brennan and Douglas failed. However, Nixon’s new appointments to the Court did tip the balance away from the liberal majority. That balance has continued for over 50 years now.

When people think of Nixon’s crimes, typically people think Watergate. No one thinks of the Supreme Court but Nixon’s actions in interfering with the Supreme Court were criminal too. The Supreme Court did not just tip – it was pushed. Nothing about the transition of the Warren Court to the Burger Court was proper. Fifty years later, it still stinks.

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Mid-April hike to Piper Pond – posted 4/18/2020

April 18, 2020 Leave a comment
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Why Bernie Matters – posted 4/12/2020

April 12, 2020 2 comments

Since Bernie Sanders ended his presidential campaign, there has been an outpouring of testimonials about the man and the movement he inspired. A cynic might point out that Bernie became a hero when he exited the race. Honestly, there has been no one else remotely like Bernie on the national stage in my lifetime.

He has been the difficult truth-teller. Who else gives hell to the billionaire class and says there should not be any billionaires? Who spoke out against American military interventions in Latin America, Iraq and Iran and who else defended the rights of the Palestinian people? Who has been as consistently honest about economic inequality in America?

We know that households in the top 1% own more wealth than the bottom 90% combined. Really, at the top levels of American politics, Bernie and Elizabeth Warren are just about the only ones who would say it, let alone try to address it.

For a long time before Bernie gained prominence, an intellectual dishonesty prevailed in which the deeper problems in American life were sugar-coated and we were fed a shallow mythology that we are number one in everything. Bernie has played a critical role in puncturing that mythology. He is not a phony.

On issues like climate change, mass deportations, police murders of Black Americans and crushing student loan debt, Bernie was the skunk at the garden party. He told it like it was and he did not care who didn’t like it. He never poll-tested his answers. That kind of integrity cannot be bought.

He made $15 an hour minimum wage, Medicare for all, and Green New Deal his signature campaign issues. No one had a bolder agenda. As he would often say at his rallies, pundits in 2016 accused him of being too radical but what was radical in 2016 became conventional wisdom in 2020. Bernie did win the ideological battle for the party platform.

Bernie showed that you could run for office without relying on big money campaign contributors who then expected payback. He pioneered another way to run with millions of people sending him $18 to $27 dollars. Defying all odds, he was financially competitive and actually raised more money than his Democratic competitors. Even by January 2020, Bernie had racked up contributions from over 5 million people. That is so small “d” democratic and sets an example to follow for future progressive campaigns.

The super-rich have been buying politicians forever and the U.S. Supreme Court has only helped that along. Many Democrats have argued that the party should take that millionaire/billionaire money because not to take it was unilateral disarmament. After all, that money from the Koch brothers, Sheldon Adelson, and others of their ilk is mother’s milk to the Republicans.

Bernie disagreed. He opposed Citizens United from day one, co-sponsoring the DISCLOSE act, which was the first legislative response to that court decision. He has always stood for enacting mandatory public financing laws for all federal elections.

For me, Bernie’s greatest achievement has been rehabilitating democratic socialism. Until Bernie ran in 2016, the Left was pretty much dead in America. There has been no consequential Socialist Party since Norman Thomas and not even a Labor Party.

For almost 50 years, the American ruling class has been successful in closing the door on progressive politics. During the Bill Clinton years, Democrats became Republican-lite. No American politician ever talked critically about capitalism as a system. That was taboo. Bernie made it possible to have that discussion. He showed how economic and political issues the public has seen as disconnected are rooted systemically in capitalism.

Also, by his example, Bernie helped to make it possible for people to say they were socialists. Any student of history knows how much Joe McCarthy-type red-baiting has inhibited the free speech rights of American progressives.

The Bernie campaign in 2019-2020 was not a conventional political campaign. It had more of the attributes of a movement. It was never about just winning the Democratic nomination. It was equally about strengthening social movements whether for workers’ rights, minority rights, women’s rights or LGBTQ rights. Bernie amplified the voices of the most marginalized and vulnerable Americans.

Core to the Bernie message has been his whole-hearted defense of working people. Most Democrats only talked about the middle class. Bernie departed from what had become a party norm. His central argument has been that working people of all races and nationalities deserve far better than they have received in America. To quote him:

“If there is going to be class warfare in this country, it’s about time the working class won that war.”

This was a message received ambivalently at best by the Democratic Party establishment. The party establishment does not even recognize how much the economy has devastated workers across the country. Much of the party leadership has been more interested in appealing to urban and suburban members of the professional managerial class than workers.

The Party remains split between its centrist and progressive wings. It is almost like there are two parties inside one party. It will be fascinating to see how the Joe Biden campaign navigates these tricky waters.

Bernie unleashed remarkable energy and enthusiasm as was evident at his rallies. He inspired. It has often been noted that he won over a number of Trump voters. I think it is because he respected all kinds of people. There was no basket of deplorables with Bernie. This is a strength of his that was insufficiently appreciated. He wanted to bring over people who identified as Republican or independent and he was good at it. Look alone at his successful track record in Vermont.

He was never shy about going on FOX or walking into any lion’s den. He went to Jerry Falwell’s school Liberty University and made his case. He did not treat people who disagreed with him as un-people. He wanted to persuade them.

Part of Bernie’s contribution has been leading the way in bringing a new generation of millennials to democratic socialism. Think Alexandria Ocasio-Cortez, Rashida Tlieb and Ilhan Omar as well as the thousands of young people brought into organizations like Democratic Socialists of America. Bernie carried the vote among young people overwhelmingly. He was more in touch with the realities of their lives even though he was the oldest candidate.

I think it is worth reflecting on why his campaign ultimately did not win. He never broke through with African Americans like he did with Latinos. He also did not do well with people over 50. His strategy of bringing in the 50% of people who don’t vote, especially young people, did not result in winning. Progressives should reassess and figure out what went wrong so the future might be different.

As someone from the 1960’s/1970’s New Left generation, I stand in awe of Bernie Sanders’ accomplishments, even losing. The movement that carries on will be in a far better place than it ever was before.

I saw the historian Heather Cox Richardson compare Bernie to the fiery abolitionist Massachusetts Senator Charles Sumner of the Civil War era. While it is a good comparison, I guess I see him as our era’s Eugene V. Debs. Bernie has fought the immiseration of our working class and almost single-handedly resurrected the American socialist tradition.

I think 100 years from now, if there are people to remember, Bernie will be honored for breaking from decades of a stifling political orthodoxy and pointing the way to a better life for all.

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April quarantine dog break – 4/6/2020

April 6, 2020 Leave a comment
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On the need for the response to keep up with the emergency – posted 4/5/2020

April 5, 2020 2 comments

Events have fast outpaced our thinking and ability to respond. Whatever we initially thought the coronavirus pandemic was going to bring back in January, outcomes are turning out to be far more catastrophic than initially predicted.

The toll in public health and economic well-being has already been enormous. There are now over 330,000 coronavirus cases in America with over 9400 confirmed deaths. Those numbers will be rising dramatically.

At the same time, in the last two weeks, over 10 million Americans have filed for unemployment benefits. Millions of these folks had health insurance tied to their jobs. I think for the great majority it is likely their health insurance is gone.

These newly unemployed join the 27.5 million who were uninsured even before the pandemic, along with the 88 million people (45% of U.S. adults between the ages of 19 to 64) who are inadequately insured. By that I mean those who had gaps in coverage or had out-of-pocket costs that were so high they could not receive needed care.

At the federal level, the HHS secretary Alex Azar has said coronavirus patients will be covered by the government if they fall sick with COVID-19 illness but that has not been established by any rule or regulation. Trump has offered no help to the uninsured with medical issues besides coronavirus and has refused to reopen Obamacare enrollment to allow uninsured Americans to buy health coverage now. The Trump health care plan would appear to be the purchase of body bags.

The situation with far too few ventilators and inadequate personal protective equipment is a window into our failing safety net. People can point to the too late, botched response by the Trump Administration which has cost untold lives and that conclusion is absolutely true but the problem goes deeper.

Our safety net has been fraying and shredding for forty years and our collective response has been to look the other way. An administration committed to deconstructing the administrative state left us grossly unprepared for an out-of-control pandemic. The desire for maximizing profit has corrupted our national response.

The absence of a strong, coherent federal plan, as exposed in the desperate spectacle of states battling other states and the federal government for ventilators, shows we need to go another way. Companies that use the pandemic as an opportunity to maximize profits and price gouge should be investigated and prosecuted to the fullest extent of the law. Being too small-minded is literally killing us.

Let me offer some doable ideas that have not received enough serious consideration. These are suggested in the hope that mainstream politicians of both parties will not strangle all progressive untried ideas.

Leading off with a big one, we need to nationalize health care immediately. I know many will say that is impossible but Ireland just did it on March 24. Ireland’s Health Minister Simon Harris announced,

“For the duration of this crisis the State will take control of all private hospital facilities and manage all of the resources for the common benefit of all of our people. There can be no room for public versus private when it comes to pandemics.”

Ireland’s move follows a similar change by Spain. The goal is for equality of treatment as well as free treatment. So many Americans are worried now, not just about getting sick, but also about incurring unaffordable medical expenses. There is tremendous anxiety and reluctance to go to medical facilities because of cost. It should be obvious how harmful that is to public health, especially now.

Earlier, during the first primaries, Bernie Sanders always got asked about how he would pay for Medicare For All. After a two trillion dollar bailout bill, the cost of Medicare for All hardly seems extreme. There is also a cost in not having universal care as we are finding out with coronavirus.

Another idea that I would suggest is to have the government pay for all cable TV, internet, and phone coverage for the duration of the pandemic. Service should be free. The government could pay communications companies and cover this cost..

I heard the economist James Galbraith make this argument and I find it persuasive. If people do not have to pay for cable, internet and phone, they would have more money for other critical needs. Since we are at home and we need good information, government coverage for a limited period makes total sense.

We need to pay essential workers extra hazard pay. And the pay needs to reflect the true importance of the work which has been devalued. While white collar workers are typically home now, many blue collar workers are risking their necks by going in to work. Besides health care workers, this includes food service workers, grocery store workers, warehouse workers, delivery drivers, personal care attendants, pharmacy workers, checkout clerks and security guards.

These workers are some of the most poorly compensated employees and yet we are all dependent on them. Maybe readers have seen the photos of New York City workers packed together in the subway as they head to work.The danger of such close proximity is obvious but economic need drives these workers in. They need the money to avoid hunger and homelessness.

A year from now, will we be appreciating these workers? Doing something for them should be a no-brainer but admittedly it goes against the logic of capitalism. Maybe we can make an exception though. The people who do the most dangerous work do not deserve the worst pay.

Finally, let me suggest we address hunger in the context of the pandemic. Even before the pandemic, it was estimated that one in every seven children was going hungry as well as 5.5 million seniors. I have been hearing from food banks that are running out of food, in part, because donations have been inadequate. We must ensure that the most vulnerable in our communities are not going hungry.

Food stamps, the SNAP program, should be increased along with WIC. Although the bailout bill included $15.5 billion more for SNAP benefits that was designed to cover the projected increase in applications. We should be promoting at least a 15% boost to the SNAP maximum.

Many people who have never gone to a food bank are going now. In California, the. Guardian newspaper has reported that the demand for food aid has increased as much as eightfold in some areas. In Amherst Massachusetts the food pantry there distributed 849% more food in March compared with the previous year.

Nationally, many families with school age children, have depended on school lunch as a way to help meet daily nutritional needs. Almost half of all U.S. public school children rely on free or reduced price meals. School administrators have been facing a Sophie’s choice between potentially allowing children to go hungry or risk exposing them to the infection. Many school officials fear children will go hungry during the school shutdown.

Creative ideas about addressing food need should be a top priority. Hungry children will not be learning. It is reasonable to assume, given economic circumstances, that hunger will worsen over time.

The coronavirus pandemic has changed everything. I am reminded of an Albert Einstein quote from a different context when Einstein worried about the threat of nuclear war. Einstein said:

“The unleashed power of the atom has changed everything save our modes of thinking and we thus drift toward unparalleled catastrophe.”

Now, in this crisis, we need to change our modes of thinking. Nothing less than big structural changes can save us.

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