a helpful provision

When I wrote this post on environmental policy in the United States, I hadn’t realized an important section of an earlier House version on Environmental Protection Agency regulation of greenhouse gases had made it into the final version of the Inflation Reduction Act.

The language amends the Clean Air Act and is very specific that the EPA has the authority to regulate all greenhouse gases and to reduce them through the promotion of renewable energy.

This should blunt the impact of the Supreme Court decision in West Virginia v. EPA which held that the Congress had not been explicit enough in defining the scope of the EPA’s work in moving the country away from fossil fuels in order to limit global warming.

One more step in the right direction…

US environmental update

Trying to get the United States back to a better position regarding climate change and environmental issues in general has been a major task for the Biden administration. While some things were relatively straightforward, such as rejoining the Paris climate accords, others have been much more difficult.

Unwinding the changes that the prior administration had made to regulations was sometimes blocked by the courts. The biggest blow was the Supreme Court decision in West Virginia v. Environmental Protection Agency, in which a 6-3 majority found that the EPA can’t regulate emissions from coal-fired power plants unless they have been given specific direction by Congress. It was odd that the Supreme Court heard the case because it was brought against the Clean Power Plan, which was proposed by the Obama administration, but never enacted. The Biden administration had no intent to revive that plan, as circumstances have changed, so it appears that the conservative majority heard the case for the purpose of striking down the manner in which executive branch agencies and departments go about executing the laws that have been passed by Congress. This ruling could bog down not only EPA work but also the regulatory work of other Cabinet departments. [Please note that this is my layperson understanding of the case and its implications. There has been a lot of legal commentary which can be found in myriad places online, if you are interested.] An August 26 post with an update on the impact of this case can be found here.

Legislation to address the climate crisis was an important cornerstone of the Biden agenda. The House of Representatives passed a strong bill dealing with climate change and the care economy, including health care, universal education for three- and four-year-olds, provisions for child and elder care, permanent expansion of a fully refundable child tax credit, and other measures for social justice and equity. The bill was paid for by increasing taxes on wealthy individuals and corporations. Unfortunately, the 50-50 split in the Senate combined with Senate rules gave a couple of Democratic senators power over what was in the bill and they opposed some of the financial and energy provisions, so it looked as though it would not pass.

This was extremely discouraging to millions of people in the US, as well as to millions in the rest of the world who are depending on US action to cut carbon in the atmosphere and provide leadership for other countries to do the same.

And then, a surprise announcement that Senator Joe Manchin of West Virginia, who made his money from coal and had shot down prior versions of the bill, had reached an agreement with Senate Majority Leader Chuck Schumer on a version of the bill that he could support. Additional changes wound up being made to get Senator Kyrsten Sinema of Arizona on board. Senator Schumer kept the Senate in session in Washington into their August recess to pass the bill with Vice President Harris casting the tie-breaking vote. House Speaker Pelosi called the House back into session to pass the bill last Friday and President Biden will sign the bill into law this week.

While the Inflation Reduction Act is not as strong as the original legislation, I’m very happy that it will become law. It should bring down energy costs over time. It is projected to lower US greenhouse gas emissions by about 40% of 2005 levels by 2030; the United States goal in the Paris accord is a 50-52% reduction, so we hope that additional measures will be enacted to reach that goal. However, before this bill, we were on track for only a 25% reduction, so this is a major improvement. This article is a good summary of some of the main environmental/energy provisions of the bill.

I am grateful and still a bit shocked that this bill is about to become law. Yes, there is more to do, both on environmental and economic justice issues, but, at least, we have made a good start. This is important because people and the planet need this help and because it shows that the Democrats are actually serious about governing in a bipartisan way when it is possible, such as with the infrastructure law, and alone, if necessary. I hope that the progress in the last 18 months will encourage voters to keep the Democrats in the majority so more can get done in the next session. Perhaps, it will even give more Republican Congresspersons the impetus to support popular, commonsense measures that benefit the public. We have all witnessed past Republican majorities who were unable to pass much substantive legislation; for example, the Trump administration announced multiple “Infrastructure Weeks” but never got close to passing legislation. We have also, sadly, seen Republican minorities block action on legislation and appointments through the filibuster and other holds and delaying tactics. I think these need to be reformed so that the Congress is not bogged down and unable to do the work our country needs to function.

As the new programs ramp up, I encourage people in the US to be on the lookout for provisions that can help them make their lives greener, whether that is rebates on efficient electric appliances, incentives to buy used or new electric vehicles, or the opportunity to purchase renewable energy at lower than current rates. Support candidates who make the health and well-being of people and our environment their top priorities. We need representatives who are looking out for us, not just corporate profits and tax loopholes.

In my district, that means voting for the Democratic candidate. Make sure that you know the candidates’ positions in your area before casting your ballot.

the aftermath of Dobbs

When I wrote this post after the leak of US Supreme Court Justice Alito’s draft opinion on an abortion law in Mississippi, we weren’t sure if there would be changes before the decision was announced.

When the decision was announced on June 24, it was little changed from the draft. The majority signed on to the opinion that Roe v. Wade had been “wrongly decided” and threw the matter of the legality of abortion to each state’s legislature.

It’s not that long-standing Supreme Court precedents have never been overturned or declared “wrongly decided” – the Dred Scott decision springs to mind – but the Dobbs case was the first time that such a reversal came at the expense of a recognized right.

Many lawyers and Constitutional scholars have faulted the majority’s decision on historical and legal grounds, as Alito seems to cherry-pick sources in support of his view while ignoring the mainstream history and scholarship to the contrary. For example, while it is true that the Constitution does not specify a right to an abortion, it also never uses the word “woman” or “family.” There are many rights that have been recognized by the courts over the centuries that are not specifically cited in the Constitution under the Ninth Amendment which states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The right to privacy and to bodily autonomy belong to each person and should not be under the jurisdiction of the government at any level. The Alito opinion also seems to violate the Thirteenth Amendment against involuntary servitude and the Fourteenth Amendment which promises “equal protection of the laws.”

While Alito said that abortion was a unique situation in terms of privacy protections, Justice Clarence Thomas wrote a concurrence that openly questions other rulings, such as those allowing contraception and marriage equality in all states. Somehow, he didn’t suggest that the Loving case, which forced all states to allow interracial marriage, had been wrongly decided, one assumes because he is a partner in one.

It’s now a little less than a month since the decision was handed down and there is upheaval. There have been many protests and public demonstrations. Some states moved to ban all abortions or all after six weeks of pregnancy. Some states are even trying to prevent people from crossing state lines to receive care, as though being a resident of a state gave them ownership over you. While the House has passed legislation to codify abortion rights similarly to Roe and to allow interstate travel for medical care, the Senate Republicans have blocked both measures from coming to a vote.

Some states are protecting and codifying the Roe framework. My home state, New York, had done this previously and is now beginning the years-long process to amend the equal rights protections of the state constitution to include “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy”. Bonus: this will protect marriage rights and stand against all gender-related discrimination, as well as returning reproductive health rights to each individual.

Before the decision was handed down, those of us warning of the dangers to the health and well-being of pregnant people were scolded for being alarmist, but we were being realistic. Every day, there are stories in the news of delayed care for miscarriages that threatens the health and life of the mother. There are stories of rape victims having to go to another state for an abortion. The most heart-breaking of these is the case of a ten-year-old rape victim who had to travel from Ohio to Indiana to receive an abortion at six and a half weeks pregnancy. This child has had to endure not only rape and the severe threat to her health that pregnancy at such a young age entails but also the trauma of some politicians and commentators questioning the veracity of her story.

These cases show the dangers of trying to legislate what should be private medical decisions. While some are contending that it’s not really an abortion if a child is pregnant and her life is endangered or if there is an ectopic pregnancy or if there is an incomplete miscarriage, medically speaking, all pregnancies end either in live birth or an abortion. Miscarriage is not a medical term; on medical records, it is termed a spontaneous abortion. Health care providers are being put in the impossible situation to provide the best care to their patients or to be forced by lawyers to wait until their patients are clearly dying themselves before intervening to remove a doomed fetus. When the federal government reminded hospital emergency rooms that they are required to treat any endangered pregnant person to save their life, the state of Texas filed suit, saying that their state law against abortion should take precedence.

Some states are making moves not only against abortion but also against contraceptives, even though these are not abortifacient. They are trying to prevent people from crossing state lines to receive care. As I mentioned previously, while the US House of Representatives has passed legislation to codify abortion rights and to affirm the right to interstate travel, the Senate is not taking these up because of obstruction by Republicans. Chillingly, there is talk of the Republicans passing a national abortion ban if they regain the Congressional majority. Meanwhile, Republicans fail to pass legislation that would uphold the health and dignity of each person, such as universal health care, living wages, social welfare support, etc.

As a Catholic woman, I knew this was coming. Alito was parroting the arguments that Catholic bishops have made against abortion and Thomas went even further down that road in his calls against contraception. I have struggled for years against a church that denies my full personhood as a woman, despite their lip service to the concept of human dignity. I did not expect my country to follow suit.

Like most women my age, I didn’t think we would still be fighting these kinds of equality battles, but we will. I can’t predict the manner or timing of victory, but we will not be demoted to second class citizenship by a skewed Supreme Court.

The US and guns – update

In late May, when I wrote this post, I knew there would need to be an update in the continuing saga of gun violence in the United States. A lot has happened since then, so here goes.

In the wake of the national furor over the Buffalo and Uvalde shootings, a bipartisan group of senators managed to hammer out a bill that could pass. It is much weaker than the bill that had originally passed in the House but does have some important provisions. It increases funding for mental health services, which is much needed. The impact on mass shootings is unclear but the majority of gun fatalities in the United States are suicides, so there is hope that these funds will avert some share of these deaths. There are incentives for states to implement red flag laws, which prevent firearm sales and/or remove guns from homes where someone is deemed threatening to themselves or others. The laws preventing those convicted of domestic violence from obtaining guns were strengthened. There will be enhanced background checks for those ages 18-20. Penalties for those who purchase guns for someone who is not eligible to own one have been increased. Funding for security in schools will increase.

Unfortunately, stronger prevention measures were not included, most of which have broad public support. Among these are strengthened and universal background checks, banning military-style assault weapons and large ammunition clips, and raising the age to buy semiautomatic weapons to 21. It’s unlikely that Republicans will agree to any further national legislation in the immediate future, so it is up to states to do what they can to protect people, although it is easy for anyone intent on getting a weapon to do so by visiting a state with looser regulations.

Ironically, just as this legislation was passed, the Supreme Court handed down an opinion that struck down the process to carry a concealed weapon in my home state, New York. This law, which had been on the books for over a century, was somehow not deemed to be part of our history and tradition by the conservatives on the Court, while ignoring the clear text of the Second Amendment that places gun rights in the context of “a well-regulated militia.”

Governor Hochul called the state legislature, which usually is in session only in the winter and spring, back from recess to pass new laws that would seem to be acceptable to the Court which had objected to a gun owner proving that they needed to carry a concealed weapon for protection. The new laws include mandatory standardized training and tests to obtain a concealed carry permit, a blanket prohibition on carrying firearms on private property and businesses unless they expressly give permission, and a list of “sensitive places” where concealed weapons are not permitted, including public transportation, medical facilities, schools and day care facilities, libraries, government buildings, houses of worship, public demonstrations, entertainment venues, and establishments that serve alcohol.

There are also provisions that strengthen New York’s already relatively strict gun laws, including background checks for all ammunition purchases, enhancements of the safe storage requirements including in vehicles, and extending the sales ban on body armor to include hard body armor which was used by the shooter in Buffalo.

These new laws will take effect on September first. They may be challenged in court but the legislature and governor tried to design them in such a way that they will be upheld. At least, we will have greater protections while the cases wind their way through the courts.

Meanwhile, of course, gun violence continues unabated. The Fourth of July weekend was especially brutal, with over 500 shootings, at least 11 of which were categorized as mass shootings (four or more injured or killed, not counting the shooter), resulting in over 220 deaths and nearly 570 injuries. The information source for this reporting is the Gun Violence Archive, an organization that collects and compiles data on shootings in the US. That our country has need of such an organization is sobering in and of itself. As I write this on July 7, 2022, they have verified 22,733 gun deaths so far this year, of which 12,408 were suicides.

The most prominent of the mass shootings this weekend was at a Fourth of July parade in Highland Park, Illinois, just outside of Chicago. A 21-year-old man, shooting with a military-style weapon from a rooftop overlooking the parade route, killed seven with several dozen wounded. He was later arrested and has confessed to the crime. Our news reports are filled with the tragic losses of family members, including the parents of a 2-year-old who was found beneath his father’s body.

This father died protecting his only child from a young man who should not have had a weapon of war. All of us need the protection of law to keep these weapons out of civilian hands. Congress, do your job and pass more laws so that our rates of gun violence are more in line with those of other advanced democracies. Other countries have similar rates of mental illness, violent video games, and social problems, but have nowhere near our rates of gun violence. Republicans, it’s time to wake up and admit the truth that the heart of the problem is too-easy access to guns, especially military-style weapons. And remember that your beloved Second Amendment is about a “well-regulated militia” – now akin to the National Guard – not your mentally unstable 18-year-old neighbor who has fallen into some dark conspiracy-laden corner of the internet and thinks he should kill some folks to show he has power over them.

Congressional Republicans, you have the power to join with your Democratic and Independent colleagues to protect us. If you need help mustering courage, look to the example of that dad in Highland Park. Your possibly sacrificing a few votes in your next election or some campaign contributions is nothing compared to his sacrificing his life and his chance to see his child grow into adulthood.

this Fourth of July

It’s the fourth of July, commemorated here in the United States as Independence Day. It’s supposed to be a “happy” day, but it’s hard to feel happy with our country mired in divisiveness and the undermining of our fundamental rights and democratic institutions.

I know I have been relatively silent here at Top of JC’s Mind lately. Part of it is a renewed wave of grief over Paco as we have entered the one year anniversary of his fall and final decline and the fact that I had deferred a large portion of my grief over Nana while dealing with his needs.

The larger share of my delays in posting, though, is that the posts I need to write about the Supreme Court decisions and the January 6 Select Committee hearings are difficult to write.

The Preamble to our Constitution proclaims that “We the People” are striving toward “a more perfect Union.” This Fourth of July is one of grief, watching my country lurch further away from that ideal rather than making halting, if messy, progress toward it.

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”.
*****
Join us for Linda’s Just Jot It January! Find out more here: https://lindaghill.com/2022/01/27/daily-prompt-jusjojan-the-27th-2022/

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.

Another “week that was”

I’ve been meaning to write a post all week, but couldn’t settle my mind enough to do it.

Now it’s Saturday and I probably still have not settled my mind enough, but am plunging in regardless.

I’ve written often about how disconcerting and bizarre it is to be living in the United States in 2020. The national government is dysfunctional, although I am fortunate to be living in New York State with a competent governor, Andrew Cuomo, so there is some sense of stability, despite the public health and economic fallout from the pandemic.

The sad news on the national pandemic front this week was surpassing seven millions known cases. This comes on the heels of passing 200,000 known COVID deaths, which means that the United States, with about 4% of the world’s population, has suffered about 20% of global deaths. This is a result of the incompetence of the president and his administration. The staggering news this week is that the administration is saying that they could overrule the Food and Drug Administration and grant an emergency approval of a coronavirus vaccine even if the FDA does not feel that there is enough data yet to show that the vaccine is safe and effective. The president has been hinting about having a vaccine approved before the November third election, even though phase three trials only began in the United States in July. (My spouse, daughter, and I are part of the Pfizer vaccine study. You can find my posts about it by using the search box here at Top of JC’s Mind.) This threat of political interference from the White House comes on top of recent revelations that political appointees have interfered with what the scientists at the Centers for Disease Control and Prevention publish on their official website and the stunning statements by Olivia Troye, a national security specialist who until recently served on the staff of Vice-President Mike Pence and was assigned to the White House Coronavirus Task Force.

This week also saw the public memorials for Supreme Court Justice Ruth Bader Ginsburg. There was a remembrance service at the Supreme Court to open two days of public viewing there, followed by a service and a day of lying in state at the Capitol building where Congress meets. She was the first woman and the first person of the Jewish faith to be so honored. Her burial will be at Arlington National Cemetery next week, after the conclusion of the High Holy Days. Meanwhile, the president and Republican senators are intent on rushing through a replacement even though the election is so close. This is against Justice Ginsburg’s dying wish that the president elected in November choose her successor and against the path that those same Republican senators took when Justice Scalia died in early 2016, when the election was much further away.

What has been most disheartening is that Trump, Attorney General William Barr, and others in the administration has increased their rhetoric about the unfairness of the election itself. Even though absentee voting by mail is a long-established, safe, and secure practice in the United States, they are trying to say it is a source of wide-spread fraud. It is not! The head of the Federal Bureau of Investigation and state and local election officials have said over and over that they have procedures in place to verify ballots and that election fraud is exceedingly rare and small-scale when it has occurred.

There will likely be many, many more citizens voting by mail this year because the public health risk of crowded polling stations has led millions of people who would ordinarily have voted on election day to request absentee ballots. Because of state laws, most of these ballots that arrive by mail or by delivery to election boards will not be counted until after election day. This means that, absent a clear landslide victory, the winner won’t be known for some number of days after the election. People will need to be patient while votes are counted and certified.

Trump has seized on the delay, intimating that not knowing the outcome immediately means that there is fraud. What it really means is that each state is carefully following their rules to ensure a full and free count. The count could have proceeded more quickly if the Senate had passed and the president signed the House’s HEROES Act, which included money to help states with additional machinery, training, and staff to deal with the expected increase in mail-in ballots. Instead, the Trump administration further gummed up the system by slowing mail delivery, which caused problems in the primaries in some states by delaying election mail so much that ballots were thrown out for arriving too late.

The presidential election system in the US is complicated. The winner is not necessarily the one who wins the popular vote, but depends on the winner of each state and how many members of Congress they have. This gives more power to small states and was how Trump became president even though he lost the popular vote by three million. There are reports that Trump and Barr are looking at a scenario where they would file court cases to try to throw out absentee ballots and allow Republican-controlled state legislatures to choose Republican electors, even if Biden wins the vote within the state. The level of corruption involved is staggering.

Meanwhile, the president is giving away the plan by refusing to say there would be a peaceful transfer of power, intimating that “the ballots are a disaster.” Trump and the Republicans also seems to be in a hurry to have nine justices on the Supreme Court so that there wouldn’t be a tie if the election lands there as the 2000 Bush-Gore race did.

It seems that the president’s re-election strategy isn’t to convince the majority of citizens to vote for him but to find loopholes to stay in power even though the majority want Biden to become president. It’s especially terrifying because the president’s rhetoric has become even more disconnected from reality. He tells his supporters lies about Biden’s positions on issues. He encourages violence against those who disagree with him and says that he will give legal protection to those who are caught in wrongdoing on his behalf. And, by the way, Russia and other state actors are also throwing misinformation into the mix.

Almost five hundred national security experts endorsed Joe Biden this week, saying that the current president is not up to “the enormous responsibilities of his office.” It’s hard to conclude otherwise when I look at the millions of folks who are suffering from COVID impacts, injustice, hunger, and lack of livelihood. That there might be election shenanigans that continue the Trump presidency is more than I can bear to contemplate.