One-Liner Wednesday: a warning

It is high time that we all stopped being tools and victims of totalitarian techniques—techniques that, if continued here unchecked, will surely end what we have come to cherish as the American way of life.

Sen. Margaret Chase Smith of Maine, June 1, 1950, speaking against McCarthyism

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a fraught and complicated topic

Anyone in the US can probably guess from the title that this post is about abortion, which is all over the news right now, due to the publication of a first draft of an opinion by Justice Samuel Alito which would overturn the Supreme Court rulings in Roe v. Wade and Planned Parenthood v. Casey, ending the right to obtain a pre-viability abortion throughout the US after 49 years. If the final ruling follows this draft, each state would be free to adopt its own laws regarding abortion. While some states have already codified abortion laws in line with the Roe framework, other states have laws that would greatly restrict or totally ban abortion if Roe is struck down.

It’s been a political earthquake. It’s also being cast as yet another liberal versus conservative, blue versus red, pro-choice versus pro-life issue, but it is much more complicated than that.

Years ago, I started to draft a post called “shades of gray in a black-and-white world” that would have dealt with abortion as an example. I don’t tend to be an either/or person; everything to me is a complex web of concerns with many different aspects and perspectives to take into account. (You can blame my INFJ-ness or just Joanne being Joanne.) I’ll try to make myself as clear as I can in this post but my greater goal is to explore the varied factors that come into play.

At its root, I don’t think any branch of government should be dictating what a person who is pregnant does before the baby can survive on its own. I think that is a private medical and moral decision that belongs to the mother, her partner if they are available in a supportive way, her medical practitioner, and any advisors who can help.

I am Catholic and know that the Church currently teaches that life begins at conception but I think that is a problematic definition. Most fertilized eggs don’t implant in the uterus and it seems foolish to define all those as miscarriages. It’s tragic when an embryo implants elsewhere; if you have defined life as beginning at conception and prohibit all abortion, then an ectopic pregnancy couldn’t be treated until the embryo has died, by which point there will probably be life-threatening internal bleeding in the mother’s abdomen. Defining fertilized eggs as persons also gets problematic with frozen embryos used for assisted fertility treatment. I would certainly not be considered alive if I were placed in liquid nitrogen! (The Catholic Church opposes most fertility treatments, including in vitro fertilization, but it is germane because, of course, frozen embryos exist.) Other faiths believe personhood begins at different junctures, with many Muslims believing in ensoulment at 120 days after conception and many Jews marking birth as the beginning of full personhood. Because there is no consensus on when life begins among people, the government is overstepping its bounds to impose one.

The vast majority, about 92%, of abortions in the US are performed within the first 13 weeks gestation, or 15 weeks of pregnancy because weeks of pregnancy are, for some stupid reason, still counted from the date of the late menstrual period meaning you are considered two weeks pregnant at the time of conception. One of the very confusing things with laws in various states is referring to abortion bans at six weeks or fifteen weeks. It’s often referring to weeks of pregnancy, so we need to bear in mind that the gestational age is two weeks younger. 44% of abortion in 2019 were medical, using pills to cause a miscarriage early in the pregnancy, rather than surgical. Medical abortion can be used up to the tenth week of gestation.

Only 4% occur after 16 weeks gestation. These are most often done because of grave medical problems with either the mother or fetus. Sometimes, second trimester abortions are performed because of barriers of distance and/or cost to reach a provider. Rural women and people with low income/wealth often have this barrier, as do people without medical insurance or who have Medicaid because federal funds cannot be used for abortions.

The largest factor in choosing to have an abortion appears to be economic. 49% of people seeking abortion are living below the poverty level, with an additional 26% up to twice the poverty level. 60% already have at least one child. Unlike most modern democracies, the United States is not very supportive of families and children. I wonder how many would choose to raise the child rather than have an abortion if the US offered free or low-cost medical care, paid parental leave, guarantees of a living wage and/or subsidies for food, housing, day care/preschool, etc. that people in much of Europe have available to them.

Even the favorite alternative of those who oppose abortion, carrying the child to term and placing it for adoption, is expensive. If the mother is struggling financially and has other children to care for, she is literally faced with a choice between impending medical bills for delivering the new baby and feeding, clothing, and housing her present family. Abortion may be her most practical route to keeping her family afloat.

This brings me to one of the most troubling aspects of prohibiting abortion – forced childbearing. Carrying a child against one’s will is, to my mind, a form of involuntary servitude. I know from my own experiences with pregnancy that bearing a child is work which is physically, emotionally, and spiritually taxing. With my first pregnancy, which was planned and hoped for, I still experienced a lot of emotional upheaval, especially in the first trimester. I can only imagine what it would have been like if I had been without a partner, uninsured, living in poverty, unhealthy, in an abusive relationship, or a victim of sexual violence. Yet, some of the state laws restricting abortion carry no exceptions for rape and incest. Forcing a woman to bear a child that results from sexual violence or coercion magnifies the trauma. It’s especially dangerous if a tween or teen is involved.

Despite some progress, mothers in the United States bear a disproportionate amount of the labor and consequences of raising children. This is especially true if they are single parents. The poverty rate for single mothers is high. Often, the father doesn’t contribute substantially to the household finances. Many women who are unexpectedly pregnant face the loss of schooling, employment, and family support. It’s not just whether or not to have a baby or an abortion; it’s looking at 18+ years of raising a child without adequate support from the father, family, and community. While the stigma of single parenthood has lessened somewhat in my lifetime, it is still there, especially within certain religious communities. There is also still significant employment discrimination against women, in particular during pregnancy. Rolling back reproductive rights will likely worsen this.

While the leaked draft tries to say that the overturning of Roe v. Wade does not have legal implications beyond abortion, it’s unlikely that other private matters won’t be affected. The most obvious is access to contraception. It wasn’t until 1965 that the Supreme Court ruled that married couples must be allowed access to contraceptives and 1972 that any person could access them. I feel the right to use contraceptives is under particular threat because of the way the Catholic Church teaches about them and the fact that six of the current justices are Catholic, with an additional one who was raised Catholic. Only one of those seven is not in the conservative camp.

As a Catholic woman, I have been told that taking birth control pills is like having an abortion every month, ditto for morning after pills and IUDs. The fact that this is total garbage from a medical standpoint is apparently irrelevant to the Church. The Church also opposes surgical sterilization for males and females and privileges the life of the unborn over the mother. I, like millions of other Catholics, reject this teaching and follow my own conscience on these matters personally. I am fortunate that I never had to face a personal decision on abortion during my child-bearing years, but I do know that if I had had an ectopic pregnancy, I would not have hesitated to have surgery to save my life. I also probably would have had an abortion if we discovered that I was carrying a child who had problems that were “incompatible with life” as it is euphemistically termed. I don’t think I could have chosen to put myself and my child through the pain and trauma of birth, knowing that they would die soon after.

Other people might make other choices but that is the whole point. Each individual chooses what is right for them, within the realm of medical science and individual conscience. The government is not the entity doing the choosing.

Besides birth control, there are other issues that are considered privacy issues. Many people are concerned about the impact on marriage. The 2015 Obergefell case that established marriage equality throughout the US could be in danger. Some worry that even the 1967 Loving case that prohibited states from racial discrimination in granting marriage licenses could be at risk. Another ruling that could be in jeopardy is 2003 Lawrence v. Texas, which struck down the remaining state laws that prohibited same-sex relations.

By chance, I had had an opportunity to discuss a possible overturn of Roe v. Wade not too long before the leaked opinion draft. I sometimes do online surveys and had been invited by one of these polling organizations to participate in an online focus group about abortion. I admit that I was a bit of leery about it beforehand, but it was very interesting. Most of the group thought that Roe v. Wade was likely to be overturned soon, while I and a few others thought it would be a longer process. I had thought that the present case would uphold Mississippi’s 15-week ban, changing the timeframe of Roe without going so far as to say it was wrongly decided. I suppose this is still possible if Alito’s draft opinion didn’t draw the support of four other justices, though I feel that is unlikely at this point. In the focus group, we did view some short promotional videos that a client organization might use in the event of tightened abortion restrictions. I expect to see some of them debut after the Court formally announces its decision in June or early July.

There are already lots of marches and demonstrations going on and I expect more. There might be repercussions for the midterm elections in November but with the level of gerrymandering and voter suppression in the country already, it’s difficult to predict the outcome.

I also don’t know what reforms are possible. One of the reasons this ruling is possible is that the Republicans have interfered with the seating of federal judges and justices. Two of the justices likely voting in favor of this overturning of Roe were appointed by Donald Trump but those seats would have been made by Democratic presidents if the Senate confirmation process had not been co-opted by Senator Mitch McConnell. A few weeks before the 2020 election, I wrote a post about one possible approach to addressing this. And all of this is complicated by the structure of the US government that gives disproportionate power to less populous states through the Senate and the electoral college.

Thank you to any of you who have made it this far in a longer-than-usual post. I do not know what the coming weeks will bring with this latest addition to political tensions in the US. It’s hard to keep my fears in check.

Please, stay safe.

voting in the US

I’m tired of politicians in Republican-led states that are restricting voting practices boasting that their policies still make voting easier than in “liberal” New York.

I live in New York state and here’s the deal. New York has long had very cumbersome voting rules. Registration and changes in party affiliation had to be completed months in advance of election day. Absentee voting by mail was only for medical issues with a doctor’s letter or being out of the county on election day. Until the pandemic, there were no early voting days. When we did have some early voting for the November 2020 election due to the pandemic, I waited in line for three hours to cast my ballot. Fear of COVID was allowed as a medical exemption so voting by mail was easier in 2020 but those ballots were not counted for over a week.

I envied family and friends in other states where most of the voting was done by mail, often with ballots mailed routinely to registered voters. States with open primaries, same-day registration, weeks of early voting days. States where it was not as cumbersome to fulfill the fundamental responsibility of being a citizen.

Because of the election interference problems of 2016, there had been a lot of preparations done to make the 2020 election more secure. The pandemic added another layer of complexity but the election was very successful with high turnout and accurate results reported. There were only scattered instances of voter fraud. Despite the vociferous and continuing lies from the former president and other Republicans, the election was free and fair. Dozens of recounts, audits, and court cases have upheld the results.

That is not to say that there were no problems. In my Congressional district, New York 22, the vote count was so close that it had not been certified when the new Congress first met in early January. During the January 6 attack, there was no representative from my district huddled in the House chamber and then evacuated to a safer location. The contested election results wound up in court. One of the main issues was that one of the counties did not process new voter registrations even though they arrived before the deadline. When those people appeared to vote, they were not allowed to cast ballots, which was significant in a district where only a few dozen votes separated the candidates. The court allowed the vote count to stand, seating the Republican candidate who had won in 2016 in place of the Democratic incumbent who had beaten her in 2018.

In a way, this foreshadows some of the efforts underway in various states to make registering and voting more difficult for people who are deemed likely to vote for Democrats. This has variously been applied to people of color, urban dwellers, elders, college students, and Latinx populations, depending on the state. For example, in Texas, a handgun license is accepted as identification for voting but a student ID is not. There have also been moves to close polling locations in certain areas, for example, to create long lines to vote in majority black neighborhoods while white neighborhoods have more polling places with only a few minutes’ wait. We also see increased amounts of gerrymandering, whereby districts are drawn in convoluted ways to dilute the voting power of a group, whether that is regarding political party, race, or ethnicity.

These kinds of voter suppression tactics and interference in representation have been around for a long time but are worse now than in recent US history due to Supreme Court decisions in 2013 and 2021 which made much of the 1965 Voting Rights Act unenforceable.

What is even more unsettling are the new laws in some states that are empowering partisans to determine which of the votes cast get counted and which get thrown out. The counting of valid votes should be totally straightforward and non-partisan. It’s math. Inserting politics means that it’s possible for electoral college votes to be awarded to the candidate who lost the popular vote in the state, perhaps overseen by the state legislature. We have seen a frightening example of this already with several states sending fraudulent slates of electors for Trump in states where Biden won the popular vote. We have just learned that these cases are being investigated by the Department of Justice.

There have been several bills in Congress to try to address these problems. They have passed the House but not the Senate where they have been impeded by the filibuster that would need ten Republicans to join with the Democratic caucus to advance the bills for a vote.

It’s shameful that Republicans are not standing up for democracy and the right of all citizens to participate in free and fair elections. They are apparently afraid that, if everyone votes and all the votes are counted accurately in fairly drawn districts, they will lose elections and power.

They should, though, be prioritizing our democratic principles and highest ideals. The last time the Voting Rights Act was re-authorized in 2006 it passed in the Senate 98-0 with 17 currently serving Republican senators supporting it. The Voting Rights Act originally targeted black voter suppression in certain jurisdictions with known discriminatory practices and the Supreme Court considered these formulae outdated. The current legislation under consideration goes further in securing voting rights for all in that it addresses a wider range of problems over the country that have appeared or been threatened over time. It would help voters in Democrat-led states like New York as well as Republican-led states like Florida.

Some have argued that the courts will prevent injustice but that does not always happen, as we found in the case in NY-22 where voters were disenfranchised without redress. We are also seeing, unfortunately, cases where judges are acting in a partisan way rather than an impartial, merits-of-the-case way.

Our Constitution begins, “We the People of the United States, in Order to form a more perfect Union”. Over our history, voting has been restricted by race, age, gender, and wealth. As we strive to “form a more perfect Union,” we must ensure that all adult American citizens have equal access to voting, whatever their race, age, gender, ethnicity, religion, political opinions, education, place of residence, or health status. We need just and enforceable laws to make that possible. I call on all members of Congress to support their fellow citizens in order to make our union stronger and “more perfect”.
*****
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One-Liner Wednesday: Bob Dole

I stood up for those going hungry not as a leader in my party but as someone who had seen too many folks sweat through a hard day’s work without being able to put dinner on the table.

Senator Bob Dole, who passed away a few days ago at the age of 98

Join us for Linda’s One-Liner Wednesdays! Find out more here: https://lindaghill.com/2021/12/08/one-liner-wednesday-decisions-decisions/

New York voting

Georgia has already passed laws restricting voting access. Texas, Florida, and a raft of other states are considering similar bills.

When voting rights advocates complain, officials say that they aren’t really tightening access to the ballot. They are making their laws more like New York’s and New York is a liberal state, so the measures they are taking must be okay.

One major problem: New York, where I have lived most of my adult life, is way behind the vast majority of states when it comes to making registering and voting fair, accessible, and convenient.

While we do have voter registration and address change available through the Department of Motor Vehicles, the wait time between registering and actually being able to vote is long. This also applies to changes in party registration, which affects access to primaries, which are closed. (A closed primary means that only those who have previously registered with that party are allowed to vote. When I was growing up in Massachusetts, political independents could request a ballot for any party they wished on voting day, fill it out, hand it in, and then have their name removed from the party list, going back to their independent status.) I would love to have same-day registration as some states do. A voter can then cast a provisional ballot which will be counted as soon as eligibility is verified.

Many states have long had no-excuse absentee voting or extensive vote by mail options. New York has not. Absentee ballots were restricted to those who would be out of town on election day and those who were physically unable to get to the polls. In 2020, people were allowed to check the box for illness/disability for fear of contracting COVID, so the basic structure of absentee voting is still intact. One useful option we do have is that one can file as having a permanent illness/disability and an absentee ballot will automatically be mailed to you for every future election. This has been very helpful to my parents and my friends who are elders.

2020 was the first presidential election in New York State with early in-person voting at centralized locations. Previously, the only way to vote in person before election day was to go to the county Board of Elections office, request a ballot, fill it out, and turn it back in. The early voting period was October 24-November 1, with election day being November third. In our county, the lines were long. We waited about three hours in line to vote; our county lengthened the hours available after a few days to cut the waiting times. As it turned out, we could have waited to vote on election day as our planned trip to visit family in the UK was cancelled the day before we were to leave, so we were in town on Nov. 3rd. Many states have much more extensive early voting periods, beginning several weeks before election day.

One thing that New York had been good about was having long hours on election day. Polls were open from 6 AM through 9 PM. Anyone who was in line by 9 PM could remain to vote, no matter what time that actually occurred.

New York has also been very slow with counting votes. Absentee votes couldn’t be counted for at least a week after election day. In some cases, the waiting period was closer to two weeks. While the presidential outcome was clear, some races were not officially certified for weeks after the election. The most severe was our Congressional district, which resulted in our representative not being sworn in until February 11th.

New York is continuing to pass legislation to make voting more accessible. Meanwhile, these other states that are claiming to be “keeping up with liberal New York” are in reality making vote more burdensome for their citizens. They are also adding ridiculous things like making it a crime to give food or water to people waiting in line to vote.

So remember, the next time you hear some politician crow about making their voting system more like New York’s, it is probably not a good thing.

The various shenanigans that are going on with states restricting voting access points out the necessity for action at the federal level. I am hoping that the For the People Act (H.R.1/S.1) and the John R. Lewis Voting Rights Advancement Act will be passed by Congress for President Biden to sign into law. Taken together, these would ensure equal access to the ballot for all citizens, no matter where they live. It would be even better if the bill to make Washington DC a state is adopted so that the 700,000 people that live there finally have votes in Congress.

Every citizen deserves representation and an equal opportunity to vote!

filibuster update

Here at Top of JC’s Mind, I sometimes – and more frequently in recent years – wade into the political waters of the US. Last October, I mentioned the Senate filibuster and my hopes that is would be reformed, tangentially in this post and fleshed out a bit in the comments.

Remarkably, these early weeks of the Biden administration have given rise to a lot of public discussion of the filibuster and how this arcane Senate rule might be reformed or eliminated so that legislation can pass the Senate by majority vote rather than needing 60 of 100 senators to end debate and proceed to a vote. This is called “invoking cloture.”

For decades, filibusters and cloture votes were rare. Maddeningly, filibusters were used to attempt to derail legislation on civil rights, voting rights, labor rights, and anti-lynching. (Republican Minority Leader Sen. Mitch McConnell has tried to argue that the filibuster was not used as a racist tool, but this twitter thread from Kevin Kruse proves him wrong with a long, but not exhaustive, list of past racially-motivated filibusters.)

During the Obama presidency, McConnell and the Republicans frequently used the filibuster to slow or prevent approving appointments and to keep legislation from reaching the floor for a vote. This was possible because all a senator needed to do was to say they wanted to filibuster and it would take sixty votes to end it, which, with all the Republicans sticking together, meant that there were never enough votes to invoke cloture and proceed to a vote. This led to a rule change that appointments were not subject to the filibuster, though other kinds of legislation still were.

One of the reforms to the process currently being discussed is to require that a senator wanting to filibuster must stay on the Senate floor and speak on the bill being debated. This revives the practice that was in place until 1975, although senators then weren’t required to speak on the bill and could read from the phone book or cookbooks or talk about totally unrelated topics.

There is also a proposal to change the cloture vote. Rather than needing sixty votes to end the debate, which puts the burden on the majority, the new rule would be that 40 or 41 senators would need to vote to continue the debate. This preserves the ability of the minority to put forth their arguments on something they feel strongly about but requires them to put forth effort to do so.

The hope is that these two reforms would break the stranglehold on bills that became so stark during the Obama administration. It might also engender more bipartisan bills actually making it to the Senate floor for a vote. (Mitch McConnell famously once filibustered his own bill when it became clear that President Obama would sign the bill into law. McConnell valued gridlock over governing.)

Or, given that it is just a Senate rule and not a law, the filibuster could be eliminated. Many think this would be the simplest path, but a few Democratic senators are vehemently opposed to ending it totally, although the impetus for reform is definitely gaining momentum.

While I had hoped that, under President Biden who was a long-time senator, some of the more moderate Republicans would want to vote for common-sense and popular bills such as the American Rescue Plan, we have yet to see that happen. The American Rescue Plan, despite its popularity with the public and its many provisions that benefit people in their states, garnered no votes from Republicans in Congress; it passed with a simple majority in the Senate due to special budgetary rules that prevented a filibuster.

There are now some popular and much-needed bills that have passed the House that will become test cases on whether or not bipartisan support is possible or whether it will take filibuster reform or elimination to get them on the floor for a vote. The For the People Act (H.R. 1/S. 1) addresses voting rights, campaign finance reform, government ethics, gerrymandering, and election security. Further voting rights issues are addressed in the John R. Lewis Voting Rights Advancement Act, which would help to restore provisions of the 1965 Voting Rights Act which the Supreme Court struck down in 2013, on the grounds that these racial provisions were now obsolete. Sadly, we have seen evidence that they are not, as efforts are now underway in 43 states to restrict voting access to certain groups of people, including by making it harder for people of color to vote or by making it more difficult for students or elders to register and vote by mail.

There are two House-passed gun safety bills, one on universal background checks and one extending the time the FBI has to vet purchasers to ten days instead of the current three. Both of these measures have broad public support, including among Republicans and gunowners. An increase in the federal minimum wage is very popular with the public, as are bills to re-build our infrastructure, increase our production of goods and green energy to create sustainable jobs, and to increase taxes on the very wealthy.

If bills like these pass the House and appear on the Senate floor, what will the Republicans do? Will they vote yes in accord with their constituents? Will they filibuster to stop a vote from occurring? If they do decide to filibuster, they risk the Democrats reforming the filibuster, voting that certain kinds of bills such as voting rights are not subject to it, or eliminating it all together.

Fingers crossed that whatever scenario unfolds, these laws will be enacted for the common good. We have been waiting for Congress to actually participate in governing in the way the Constitution sets before them.

Valentine’s Day

The usual greeting for today would be “Happy Valentine’s Day!”

Not this year.

I’m having a difficult time using “happy” as an adjective after the last week.

My family has been struggling with caretaking issues for Paco, complicated by the pandemic. I’ve spent this weekend feeling as though I want to cry, but not quite being able to let myself do it.

It’s the opposite of “happy.”

The United States is also dealing with the first day after the second impeachment trial of our former president. The trial was sobering, as it drove home the extent of death, injury, and damage done during the insurrection and how very close the vice president and members of Congress came to being injured or killed. Somehow, even though more than 67 senators said that DT was responsible for inciting insurrection, only 57 voted to convict falling short of the two-thirds majority needed for conviction. There are likely to be legal repercussions for the former president coming through the judicial system, possibly both federal and state. Meanwhile, he is likely to seek revenge against those Republican members of Congress who voted for impeachment or conviction by advocating that their state parties censure them, by advertising against them, and by funding primary opponents.

Let me be clear that even if DT had been found guilty in the Senate trial, it would not have been an occasion of happiness. It is impossible to feel happy in the face of so much suffering, pain, and fear.

I am trying to find comfort in the message of Valentine’s Day that love is strong, enduring, and the most important aspect of our lives.

May it be so.

May it overcome our present situation.

Calling on Republican Senators

As I write this, the US presidential race has not yet been called, although it is likely to be called later this weekend for Joe Biden. This would mean that Kamala Harris, as vice president, would preside over the Senate, with the power to break tied votes.

We also don’t know what the final make-up of the Senate will be and we won’t know until January as the state of Georgia, in a highly unusual circumstance, will have run-off elections for both of their Senate seats in January.

Regardless of the final composition of the Senate in 2021, I am making a plea to those Republican senators who actually want to help craft legislation and govern the country rather than engage in obstruction under the leadership of Sen. Mitch McConnell.

I think that those senators should form their own caucus. Their first act would be to vote for Sen. Chuck Schumer as majority leader, so that House-passed legislation would actually be considered in the Senate rather than gathering dust on McConnell’s desk as it has been.

They would then meet with the Democratic caucus on a regular basis to offer their ideas for advancing bipartisan solutions to the nation’s problems, which could then be enacted and signed into law. I’m sure that the Democrats would gladly agree to this solution to the Senate gridlock that has prevailed for years.

In my mind, some senators who might consider such an initiative are Sen. Romney of Utah, Sen. Collins of Maine, Sen. Murkowski of Alaska, and Sen. Toomey of Pennsylvania. Perhaps Sen. Sasse of Nebraska. They would not necessarily have to leave the Republican party to become independents, although some with strong support in their home states might be able to do that, thus obviating the threat of a primary challenger.

A lot would depend on what becomes of the Republican party without Trump as president. Will it attempt to revert to being a traditional conservative party or continue in the rather haphazard counter-factual populism it has exhibited in recent years? Would even the willingness to engage in bipartisanship be enough for the Republican leadership to kick out any senators who dared to attempt it?

In the House, the Democrats will still hold a small majority, but there might be some Republicans willing to form a similar caucus to help craft and advance bipartisan legislation.

Joe Biden has a long history of bipartisan cooperation as a senator and as vice president and has been speaking for months about restoring unity to our deeply fractured country.

Republican members of Congress, how do you respond to this call? You swear an oath to the Constitution which proclaims that our government is to “form a more perfect union” and to “promote the general welfare”.

Are you willing to act for the good of all people or only that segment that voted for you?

Update: A few minutes after I posted this, Joe Biden was projected the winner and is now President-elect. This will mean Vice-President Kamala Harris will preside over the Senate and have the power to break tie votes.

My US Supreme Court plan

In a comment to this post on my refraining from watching the Amy Coney Barrett hearings, I promised my thoughts on the future of the United States Supreme Court, so here is my attempt to weigh in on a very fraught civics topic. Please note: This is my personal opinion as a citizen. I am not a lawyer or someone with a degree in public policy. This is my brainstorming on the basis of common sense, fairness, and trying to codify what had previously been expected to accord with good governance and ethics.

In the design of the Constitution, the judicial branch is co-equal with the legislative branch (Congress) and the executive branch (president and executive agencies). Its function is to interpret the Constitution and laws. In recent years, the courts have been politicized. The impartiality of their judgements is called into question by the machinations of the politics around their appointment by the president and confirmations by the Senate.

The process as written in the Constitution is that the president nominates individuals for open seats on the various federal courts with the Senate’s advice and consent. Since Mitch McConnell has been Republican majority leader of the Senate, he has failed in his Constitutional duty to give Senate hearings and votes to nominees made by Democratic president Barack Obama, most (in)famously in the case of Supreme Court nominee Merrick Garland but of dozens of nominees to lower federal courts, as well. During the Trump presidency, McConnell has busily filled those seats with Trump’s very conservative nominees, even when those people have been rated “not qualified” by the American Bar Association.

This is an unfair practice but not technically illegal because there are not specific statutes on how the Senate gives advice and consent. My plan begins with codifying what had previously been expected, timely consideration of a president’s court nominees. I propose that all nominees to the federal bench have their Senate hearings begun within sixty days of their nomination and a confirmation vote by the full Senate for those who are advanced by the Judiciary Committee taken within ninety days. The exception would be for a vacancy to the Supreme Court in a presidential election year. A vacancy that occurs on July first or later would be held open for the winner of the presidential election that November.

My sense of fairness also calls for some remedy to the McConnell machinations that have skewed the federal courts to having more Republican appointees than there should have been. If Biden is elected, I think he should be able to make two immediate nominations to the Supreme Court, one for the seat that should have been considered for Merrick Garland because Antonin Scalia’s death was prior to July first in 2016 and one for the seat that will presumably be filled by Trump after the death of Ruth Bader Ginsburg in September. This basically applies the principle that would be codified in the new law. I envision these two seats as temporary. Going forward, Supreme Court openings would be filled by Democratic (or independent) presidents as usual; Republican (or another conservative party that might arise out of the current maelstrom) presidents would forfeit the next two openings that occur during their presidencies, gradually reducing the Supreme Court back to nine justices.

A similar remedy might be able to be applied to the other federal courts, looking at seats that McConnell blocked from being filled by President Obama as a basis.

This is not a perfect solution, as it will not restore the balance and integrity that the courts would have had without these abuses of power, but it would at least give a legal structure to prevent a repeat in the future and some measure of accountability to the parties that acted unfairly.

Another court reform that is being discussed is to put a term length on what are now lifetime appointments. I have mixed feelings about this. I like the concept of lifetime appointments because it removes any thoughts of a justice deciding in a certain way in order to influence their re-appointment for an additional term. On the other hand, it bothers me that there are justices who were rated as “not qualified” or who have been credibly accused of sexual harassment or lying under oath who will serve for a lifetime on the federal bench. If a term of service is imposed, it should be long, on the order of eighteen or twenty years. I would leave the option available for the president to re-nominate a justice for Senate confirmation. As much as I might like to apply a time limit retroactively, I don’t think this is a good idea. For better in some cases and worse in others, those approved as lifetime appointments should be able to remain in those positions.

For the record, there has been much talk about the Democrats, if they control Congress and the presidency, “packing the Court” meaning adding seats permanently to the Supreme Court. This term is meant pejoratively. I think the Democrats will definitely pursue court reform which is needed to prevent what Aaron Blake of the Washington Post has termed “court-stacking” – the Republican gamesmanship that has resulted in the current skewing of the courts toward justices nominated by Republican presidents.

The idea of temporarily adding seats and exacting a penalty against future Republican/conservative presidents is something that I dreamed up on my own, not something that I have seen proposed elsewhere, proving once again that you can never tell what might be top of JC’s Mind.

By the way, in tangentially related Senate procedure, I propose that the filibuster return to its traditional role as a tool to convince other senators to support one’s position. If a senator wishes to filibuster a nomination or piece of legislation, they may take the floor to talk about the issue as long as they wish. When they finish, debate ends and the measure is brought to the floor for a vote. In a body that already gives outsized influence to states with small populations, forty-one of one hundred senators should not have the ability to permanently block what the majority of senators wants to enact.

JC’s Confessions #16

In the first few seasons of The Late Show, Stephen Colbert did a recurring skit, now a best-selling book, called Midnight Confessions, in which he “confesses” to his audience with the disclaimer that he isn’t sure these things are really sins but that he does “feel bad about them.” While Stephen and his writers are famously funny, I am not, so my JC’s Confessions will be somewhat more serious reflections, but they will be things that I feel bad about. Stephen’s audience always forgives him at the end of the segment; I’m not expecting that – and these aren’t really sins – but comments are always welcome.

JC

I should be watching the Senate Judiciary committee’s hearings on the nomination of Amy Coney Barrett to the United States Supreme Court right now.

I can’t bring myself to do it.

There are a lot of reasons.

First, it renews my sorrow at the loss of Ruth Bader Ginsburg.

Second, it is difficult to cope with the nomination going forward under the current circumstances. There is the proximity to the election with voters already casting their ballots and the hypocrisy of the Republicans in moving forward with the confirmation process when they would not allow a hearing for President Obama’s nominee in 2016 many months before the election. There is also the fact that the Senate is not in session due to several senators being COVID positive; if it isn’t safe to be in session, in-person hearings should not be held, either.

Third, I’m leery of how the subject of religion will be handled. Like me, Judge Barrett is Roman Catholic, as are five current members of the Supreme Court with a sixth having been raised Catholic. In a country that is predominantly Protestant, it seems odd to have so many Catholics on the Court. I realize that justices make determinations on the basis of the law, but there are times that some of the arguments made in cases cross into religious belief and the Catholic hierarchy sometimes makes arguments that are factually incorrect. For example, some recent cases have upheld employers’ refusal to offer birth control in the medical insurance of women employees on the grounds that birth control is abortifacient, which, while taught by the Catholic bishops, is not medically true. Likewise, you see arguments that same-sex marriage is an assault on religious freedom even though it is a civil law; while some religions choose to offer ceremonies for same-sex couples, no religion is compelled to do so.

Fourth, I remain suspicious of the originalist/textualist bent that Judge Barrett exhibits. That judicial philosophy fails to account for how the meaning of words changes over time. In my view, one of the strengths of our Constitution and laws is that it can be interpreted in the light of new circumstances. Let’s face facts: many of the men who wrote the Constitution were slaveholders who never envisaged that one day Blacks, women, and people who don’t own property would be voters. Many modern issues could not have been imagined by people in the 18th century.

However, some issues that were clearly spelled out in the legal writings of the 18th century are ignored by originalists when it suits them. For example, the second amendment very clearly places the right to bear arms in the context of a “well-regulated militia” but originalists often ignore that part of the text and original intent. It’s also very clear that the Founders understood that corporations are not people; a future Supreme Court may someday strike down the Citizens United ruling on that basis.

I don’t know what will happen with this nomination or with the Court in the coming years, but, right now, I can’t bear to watch.

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