Tuesday, July 26, 2022

RANDOM THOUGHTS THIS SUMMER

If America survives Trump, it will have Liz Cheney to thank.

If it doesn't, careerism is to blame.

The cowards still outnumber the courageous.

If the Democrats survive the mid-terms and maintain control of Congress, I will send a thank you note to Justice Alito.

If they increase their margin in the Senate and render Joe Manchin irrelevant, I will send notes to the other five as well. 

And a bouquet to Clarence and Ginni Thomas.

If the right to contraception or sexual privacy or gay marriage survives Dobbs v. Jackson Women's Health Organization, I will applaud the hypocrisy of Justices Alito, Gorsuch, Kavanaugh and Coney Barrett.

Because that will be the only reason it did so.

The Catholic Church will come around on gay marriage long before it comes around on abortion.

Because many priests are gay.

But none are women.

If Nancy Pelosi goes to Taiwan, I will question her judgment.

But not if she goes to Communion.

If you're American, you're sweating right now.

But not just because it's Summer.

If climate change does not kill the world, I will thank God.

Because politicians will have had nothing to do with it.

If Congress fails to pass the Creating Helpful Incentives to Produce Semiconductors (CHIPS) Act subsidizing the domestic production of semi-conductors necessary for our national defense, I will think them insane.

But not for the first time.

If Beto O'Rourke beats Greg Abbott in this year's election, I will reconsider my view of Texas.

Seriously.

If Liz Cheney survives her primary challenge next month, I will reconsider my view of Wyoming.

Even more seriously.

If gas prices continue to decline, I will thank Joe Biden.

If they don't, I will thank him anyway.

Because Joe Biden is not the cause of inflation.

If Ukraine beats Russia, I will applaud the Ukrainian people.

And the rest of Europe.

Because both will have sacrificed for freedom.

If Phil Mickelson renounces Saudi sport-washing, I will ask Jesus if it is still "easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God."

Because incentives should matter.

If you think only the good die young and nice guys finish last, Gil Hodges' induction into the Hall of Fame supports the first claim.

But refutes the second.

If you realize that the Barclays Center in Brooklyn is at the exact spot where Walter O'Malley wanted to build and pay for a ball park for the Dodgers in the 1950s, you know that Robert Moses is the reason they left.

Not Walter O'Malley.

And if the Mets win the World Series this year, I will stop hating George Steinbrenner.

But wonder why they did not get their own billionaire-owner sooner.

Saturday, June 25, 2022

TRAGIC CHOICES

I am told that, if you want to be a writer, it is best to write about what you know.

Yesterday, the Supreme Court overturned Roe v. Wade, its 1973 decision that held, by a 7-2 majority, that women in the United States had a constitutional right to terminate any unwanted pregnancies up to the point of fetal viability and that thereafter the state could regulate the exercise of that right to various degrees which increased as the fetus matured.

This is what I know.

I am a 66-year-old male.  I am a baptized Catholic.  I attended and graduated from a Catholic parochial school -- Our Lady Help of Christians -- in the Midwood section of Brooklyn, New York in 1970 and thereafter attended and graduated from a Catholic high school run by the Jesuits -- Xavier High School -- in Manhattan in 1974.

I am a lawyer.  I have practiced law since 1983.  I graduated from Yale Law School in January 1982 and clerked for a conservative Reagan appointee from then until May 1983.  I passed the bar in California and was an associate there from 1983 to 1986 and an Assistant United States Attorney in New Hampshire in 1986 and 1987.  I then returned to New York, passed another bar exam, and have practiced here ever since.

In 1992, I ran for Congress as a Democrat and won a primary to be the Democratic party nominee in what was then the 19th Congressional district.  I beat a woman who was pro-life.  In the general election, however, I lost to an incumbent who was also pro-life.

I am pro-choice.

I was then and am to this day.

During the 1992 campaign, I pasted a large yellow pro-choice sticker on my suit jacket's left lapel.  No one I met could have failed to see it, not the thousands whose hands I shook at train stations, shopping centers, in towns and at debates, not the local media (from both the suburbs that comprised the district and New York City) who covered the race, and in particular not all the Catholics who lived in the district.

About a week before the general election, the largest local paper in the district, the Gannet-owned Journal News,  ran a large editorial endorsing the incumbent in the race. Criticizing me, the paper wrote that, since I "couldn't label" my opponent, I "labeled" myself, and then proceeded to claim that my yellow-sticker apparently made me a pro-choice zealot to the exclusion of all else. They appeared to think this might  be a shame inasmuch as they noted I had "serious positions" on a whole host of other issues. 

But my labeling myself apparently overrode all of that.

Some of my friends, and at least one stalwart Democratic activist in the district, told me they knew why I had stuck the label on my lapel.  "You had to," said the activist. His thought, I think, was that I did not have a choice.

He was wrong.

I could have ditched the label.  I especially could have ditched it in those small conservative towns in Putnam and Dutchess counties with large numbers of Catholic voters.  

And undoubtedly when I ran into the nuns in Garrison.

But I didn't.

Not because I had to.

But because I wanted to.

I wanted fellow Catholics to know that I did not agree with the position of the hierarchs in our Church.  I wanted them to demand I explain my position and listen to the explanation.  I do not think embryonic cells are people.  I think it absolutely clear that the US Constitution protects the right to privacy, a right that gives us bodily autonomy and that, in particular, gives women the right to control their reproductive choices.  I thought Roe was right and  I did not want my fellow Catholics to be confused, to look at me -- my gender, my ethnicity, my grade and high school educations -- and assume  any pro-choice stuff was just a wink and a nod.

So I told the truth.

I didn't disguise it.

Unlike Brett Kavanaugh and Neil Gorsuch.

The truth is not always pleasant.  

It doesn't always set you free.  

For me, in 1992, the editorialists who decided to insult me for "labeling" were the least of my problems. About two blocks from my campaign headquarters, a group from the local Catholic parish handed out mimeographs saying I was going to hell.  A friend from high school who was trying to raise money for the campaign was assaulted on the phone by the father of another of our classmates, who told him I was a "baby killer" and that he shouldn't be helping me either.  That same friend's wife received over 50 letters pretty much to the same effect.

The truth probably would not have been pleasant for Brett Kavanaugh and Neil Gorsuch either. 

Before and during their confirmation hearings, each of them told the Senate that they respected precedent and were therefore loathe to overturn it.  Gorsuch noted that he had written a book on the subject.  And Kavanaugh -- an Irish Catholic -- was even more explicit. Here's what he said to Maine Sen. Susan Collins in a two-hour interview prior to his confirmation hearings: "Start with my record, my respect for precedent, my belief that it is rooted in the Constitution . . . Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal . . . I am a don't-rock-the-boat- kind of judge. I believe in stability and in the Team of Nine."

Today, Collins said she was "misled". Sen. Manchin said the same thing and Sen. Blumenthal was more explicit.  In his mind, Gorsuch and Kavanaugh were guilty of "rank deception."

There was a lot of that going on in the Supreme Court last week.

On Friday Justice Alito told us that Roe was "egregiously wrong" from the get go. To believe that, we must now conclude that the seven justices who fashioned it in 1973 and the five who reaffirmed it in 1992 were ignorant, lousy lawyers and even worse judges. To believe that, we must also conclude that the right to privacy that protected contraception in the Griswold and Eisenstadt cases, gay sex in the Lawrence case and gay marriage in the Obergefell case are no longer valid.  As with abortion, each of them proclaimed a right that neither the history nor traditions of America affirmed and that, as a consequence, can no longer be deemed good law. Though Alito claimed none of those precedents were at risk, the analysis and logic of his decision makes plain that this was just another lie. Indeed, Justice Thomas said that quiet part out loud, noting in his concurring opinion that all those other cases should be reversed as well.

The day before Roe  was killed, the Court held New York's ban on concealed handguns unconstitutional and the day before that it did the same to Maine's statute precluding funding of private sectarian schools. In the first, it extended its erroneous ruling that the Second Amendment created an individual right to bear arms and in the second it continued to take down the wall separating church and state.

All of these moves by the Supreme Court, five of whose justices were appointed by presidents who were not popularly elected, either ignored settled precedents or extended prior cases doing so.  At the same time, they enshrined legal positions not remotely shared by the majority of the country. To the contrary, by reading privacy out of the Constitution  (though it makes no sense without it) and assault rifles and religion into it (where the text this Court claims to respect actually precludes it), they have allowed the radical right to veto the wishes of the national majority.

The consequence of these decisions is that women will die from forced pregnancies or botched abortions, cities will continue to be killing fields as guns continue to proliferate without sufficent regulation, and those who believe will be able to force their beliefs on the rest of us.

And there is a label for all of that too.

It's . . .

Tragic.

Thursday, June 23, 2022

A TRIAL FOR THIS CENTURY

So, my original idea is that the Department of Justice (DOJ) should prosecute former President Donald Trump for seditious conspiracy.

Actually, that's not my original idea . . .

As in I thought of it first.

Here's my original idea:

Attorney General Merrick Garland should appoint former Judge J. Michael Luttig as a Special Assistant Attorney General and task Judge Luttig with convening a grand jury, presenting evidence, deciding whether to indict Trump for any crimes arising out of the January 6 insurrection and all its antecedent causes, and then trying Trump on any such indictment issued.  DOJ should give Luttig the authority to staff up his team and Luttig should recruit lawyers to fill that staff.  Critically, it should be a requirement for service on Luttig's staff that any such lawyer be a registered Republican. 

The United States criminal code provides that "if two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both."  (18 USC § 2384) 

As of this morning, four public hearings before the Select Committee to Investigate the January 6th Attack on the US Capitol have been held and additional sessions are scheduled for both this afternoon and next month. 

Colloquially known as the January 6 Hearings, the Select Committee has  provided a mountain of evidence -- via live testimony, video exhibits of the January 6 insurrection itself, and deposition testimony from scores of witnesses -- that (i) Trump's claims that the 2020 election was rigged, stolen or fraudulent were and are completely false; (ii) his Attorney General, White House lawyers, the head of his campaign and others on the White House staff and in Congress told him those claims  were false (and many others, including his daughter Ivanka and son-in-law Jared, believed they were); (iii) the courts told him those claims were false; and (iv) recounts or audits in the battleground states of Georgia, Michigan and Wisconsin told him those claims were false.

The Select Committee has also laid out evidence that, despite these incontrovertible facts, Trump pressured state officials in Georgia and Arizona to "find" votes and de-certify Biden's victory, and Trump and one of his attorneys, John Eastman, solicited fraudulently created fake slates of Trump electors. Trump and Eastman demanded that these fake slates be recognized or used by Vice President Pence and that Pence then either declare Trump president as Pence presided over the joint session counting the electoral college votes on January 6 or send the election back to selected state legislatures (or to the House of Representatives), either of  which would have thereafter awarded Trump the presidency.  These acts were patently illegal.  In fact, Eastman himself had admitted as much two days earlier in a conversation with Pence's counsel, Greg Jacobs.  Legally,  Pence's only job on January 6 was to count certified electoral votes that had been sent to Congress by the states.  He had no unilateral right to do anything else and certainly no unilateral right to accept fraudulent slates or send the election back to any states or into the House of Representatives.  

On the morning of January 6, in order to force Pence to agree to his illegal demands, Trump repeated to a crowd of thousands of his supporters all of the refuted lies he had been telling them for months (i.e., that thousands of dead people and illegals had voted, that hundreds of thousands of fraudulent absentee ballots had been accepted in Wisconsin, that over twenty thousand votes had been switched from Trump to Biden in Georgia, that Dominion voting machines had a "93.67% error rate",  that there were "more votes than voters" in Detroit, etc.).  He then told the crowd that Pence had the power to award him the presidency and that  they should march to the Capitol and "fight like hell" to secure that result. 

So that is what they did.

Advised along the way that Pence had not accepted Trump's illegal demand, many in the crowd said they were "coming" for Pence and, once inside the Capitol that they proceeded to terrorize and vandalize, threatened to kill the Vice President.  Advised that the Capitol had become the scene of a riot, Trump -- instead of telling his supporters to leave the Capitol -- egged them on. At 2:24 pm he  tweeted that "Mike Pence didn't have the courage to do what should have been done".  The result of this tweet was that the rioters became more violent.  At the White House, staffers who had been urging the President to quell his supporters were aghast.  As one put it in video testimony that was played at last Thursday's session of the Hearings, "It felt like he was pouring gasoline on the fire by tweeting that."

He was.

In my opinion, there is more than enough evidence to indict Trump on the charge of seditious conspiracy.  He and Eastman concocted an illegal plan to "prevent, hinder or delay" the joint Congressional session counting the electoral college votes on January 6.  He did so by advocating that the mob he sent to the Capitol use force ("fight like hell") to get Vice President Pence to unilaterally overturn the certified results sent to Congress by the states.  When advised that the mob was violent and that Pence was in danger, he did not tell his supporters to leave the Capitol.  Instead, he supported the attack, telling them Pence has not done "what he should have done". 

Put simply, his 2:24 pm tweet amounted to a single piece of advice.

He wanted the insurrection to . . .

Continue.

Apart from seditious conspiracy, there are other crimes for which Trump could be indicted arising from his conduct on, before and after January 6.  These include obstructing an official proceeding, conspiracy to defraud the United States, and even wire fraud (owing to his fraudulent solicitation of contributions ostensibly for a so-called "Election Defense Fund" which did not exist; most of the money went to Trump's Save America PAC).  Seditious conspiracy, however, is the most serious crime and at base it most accurately describes the level of criminality to which Trump  descended and the continuing danger to democratic and republican government (small d and small r in both cases) the former president represents.

This last point is critical.

Had Trump been convicted by the Senate in either of the two prior impeachment trials, he would have been removed from office and precluded from ever serving again.  That should have happened.  Unfortunately, it didn't.  And because it didn't, Trump remains the odds-on favorite to be the Republican nominee in 2024.  He routinely repeats the claims that the 2020 election was stolen and that Joe Biden is not a legitimate president, and two-thirds to three quarters of Republican voters accept these claims as true.  Many of those voters live in states where the Republican Party controls all three branches of state government, and many of those states have now passed statutes designed to suppress Democratic turnout and allow partisan state officials to overturn electoral outcomes on the basis of the types of false, evidence-free claims Trump spouts. Were he to run and lose in 2024, he would invariably claim that election was fraudulent and again invite a mob to make him president at the point of their guns. Were he to run and win, he would govern as a fascist.

These are threats to republican government. 

They are the types of threats that brought down other republics, most notably Rome's.

And today Trump remains their centerpiece.

The mob that attacked the Capitol on January 6 was not peaceful.  It  did so either at Trump's request or with his permission and encouragement.  It was pregnant with violent, white-nationalist spearheads like the Proud Boys and the Oath Keepers, groups that led the charge and two of whose members have already pleaded guilty to seditious conspiracy themselves.  Their allegiance to Trump's malignant instincts and objectives cannot be underestimated. Nor can their potential links to the former president himself, or to any of his associates (like Roger Stone), be  rejected out of hand. Like Eastman, Stone has taken the Fifth in responding to questions by the Select Committee about his actions that day.

There needs to be a formal criminal process.  Witnesses have to be put under oath, targets flipped, deals struck. In the end, we need  an investigation, an indictment, and a trial. It needs to be full and fair. Justice Oliver Wendell Holmes, Jr. is reported to have once said that in heaven there is no law, and the lion shall lie down with the lamb; in hell there is nothing but law, and due process will be meticulously observed. Trump is our hell. He should receive all the due process we can offer.

Which brings me back to J. Michael Luttig.

Luttig is a former federal appellate judge.  He was nominated by President George H. W. Bush in 1991 to serve on the Fourth Circuit Court of Appeals and confirmed shortly thereafter.  At the time, he was 37 and the youngest federal appellate judge.  He got his JD from the University of Virginia Law School in 1981 and clerked for then Judge Scalia on the DC Circuit during the 1982-83 Term and for Chief Justice Burger during the 1983-84 Term. From the end of that clerkship until 1989, he was an associate at David Polk & Wardell, and from 1989 to 1991, he was a lawyer at the Department of Justice.

On the bench, Luttig was compared to Scalia. Both were conservative.  Both were smart. And both were, from time to time, unpredictable. In one of his more famous decisions, he dissented from the majority holding in Hamdi v. Rumsfeld that an American citizen captured in Afghanistan could be detained as an "enemy combatant".  The Supreme Court reversed that decsion, siding with him.

There are many problems that will arise in any effort to hold Donald Trump accountable under the criminal law for his conduct leading up to and on and after  January 6.  The biggest of these, however, can be summed up in one word:

Politics.

There is no way around the fact that, for better or worse, any prosecution of Donald Trump will run head first into claims that the decision was political.  Roughly half the country voted for Trump in 2020 and hates his successor, and roughly a third of the country now believes his false claim that the election was stolen. For those people, no prosecution or investigation by President Biden's DOJ can be anything other than political. Biden knows this, as does  Merrick Garland. In fact, it is the reason Biden has completely deferred to the Department of Justice on any decision to investigate or prosecute and that Garland himself has been more or less silent.

Permanent silence, however, is not an option.  

If Trump skates, if he is not investigated, indicted and tried, the rule of law as we know it dies.  

Don't take that from me. 

Take it from New Jersey's former Governor Chris Christie.

Christie is a Republican who wants to be president but admits that Trump lost in 2020, lied repeatedly about that fact thereafter, and was responsible for the Janiuary 6 insurrection.  He also knows that Trump destroyed a national treasure -- the peaceful transfer of power -- and that there is more than enough probable cause to support an indictment  Nevertheless, for the past month or two in regular appearances as a commentator for ABC News, Christie has argued that Trump must be treated differently from any other potential criminal defendant.  

The Justice Department's manual for prosecutors states that an "attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution."  More particularly, the Comment to that provision expressly states that "Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution."

For the reasons noted above, I think a criminal prosecution of Trump easily satisfies DOJ's manual.  I believe Trump is guilty of seditious conspiracy under federal law and that a mountain of evidence already exists to prove that case.  No other jurisdiction can or will indict him for this crime and the national interest is self-evident.  Finally, whatever inveterate Trumpists feel, and notwithstanding the former president's continuing hold on his so-called "base", the manual tells me all that is irrelevant.

None of this is news to Chris Christie.

He is a former US Attorney.

He knows the manual.

But he refuses to follow it. 

"This is where justice is not equal necessarily in our country," says Christie, "It's different . . .  prosecuting a former president of the United States.  If you're a prosecutor looking at this, you cannot swing and miss . . .  It has to be a 99.9% winner because the damage you will do to the country if you swing and miss is incredible.  I think there is a different standard and that standard is going to be applied by institutionalists like Merrick Garland. That is why I think it is unlikely" Trump will be prosecuted.

I disagree with Gov. Christie.  

More to the point, I think his position is dangerous.

I am a former federal prosecutor.  There are no cases that go to trial that are 99.9% winners. Lots can go wrong.  You can get a bad jury or a few bad jurors.  The judge can make a mistake. The lawyers can make a mistake. The facts may not be 100% on your side; in fact, they usually aren't.  So, if you accept Governor Christie's position, no ex-president will ever be subject to a federal criminal trial once he leaves office. And, if you combine that fact with (i) the existing DOJ policy that precludes indicting a sitting president and (ii) the super-majority of self-interested Senators (many of whom will not oppose their constituents) required to convict upon impeachment, both of which were earlier avenues of escape for Trump, you have effectively made the president  above the law.

Sometimes this won't matter.  

It didn't, for example,  in 1974, when the country was less polarized and the president less narcissistic. 

Nixon, however, had the ability to admit guilt and quit.  

Trump never will.

One way or another, therefore, Trump must be held accountable  If the January 6 Hearings end with no accountability, without even an attempt at it,  we will have, in the famous words of Churchill, "decided only to be undecided, resolved to be irresolute", and the rule of law will meet its end.  It will have done so, moreover, not because we failed but rather because we were paralyzed.  In fact, for the past seven years, that has been Donald's trump card, as it were.  He could always count on shocking, insulting or boring us into inaction . . .

Or exhaustion . . .

Or despair.

J. Michael Luttig might be able to break that logjam.

For two reasons.

First, no one will be able to credibly contend that any decision by Luttig was political.  The former judge is a poster child for Republican jurisprudence. He  has spent the better part of his life in service to either GOP presidents or a conservative view of the law.  If he indicts and then obtains a conviction of Trump, the country will know that the law, not the Democrats, brought the former president to his knees.

Second, Luttig is a pro.  He may look at the case, investigate it thoroughly, and then still decide that he does not have enough evidence to obtain a conviction on a charge sufficiently important to warrant the effort.  His long statement to the Select Committee made it clear that he thinks Trump morally culpable and, further, that he thinks only Republicans can lance that boil by rejecting Trump, return the country to the "peace" that was inherent in presidential transitions until Trump destroyed it, and save us from an almost guaranteed  repetition in 2024 if Trump runs again.  What this also means, however, is that Luttig is by no means certain the criminal law can take Trump down and that Luttig will play it straight.

So, should we take the risk?

Contra Christie, I think we should.

If  Judge Luttig declines to prosecute, we will be in no worse position than Governor Christie is now predicting.  But if he indicts Trump, the country will be better off regardless of outcome.  Criminal trials often take on a life larger than themselves, larger than even the defendants or victims involved. Convictions are restorative and acquittals do not always exonerate.  Just ask O.J. Simpson.  One way or another, the country has a desperate need to rid itself of Trump, even if he is around. Senate Republicans refused the Founding Fathers' invitation to let impeachment do that job. And elected Republicans and their base voters continue to refuse to do it themselves.

So now there are no options left.

Other than an apolitial jurist . . . 

And a trial for this century. 

Go for it.

Friday, May 27, 2022

THE HUBRIS AND HYPOCRISY OF PRO-LIFE PRELATES

I am in California.

Tomorrow, I'll attend my niece's graduation from high school.

She is a Catholic and is graduating from a Catholic high school.  Her school is located in the Diocese of San Jose, which is just southeast of the Diocese of San Francisco, whose Archbishop, Salvatore Cordileone, has been in the news lately.

On May 20, Cordileone sent a letter to Nancy Pelosi, a Catholic and  the Speaker of the US House of Representatives whose home is San Francisco. In it, and in violation of Pope Francis' and the Vatican's own views on the matter (among his many hypocrisies, the Archbishop refuses to accept instruction even as he proclaims his right to give it), Cordileone told Pelosi that she is "not to present [herself] for Holy Communion and, should [she] do so [she is] not to be admitted to Holy Communion, until such time as [she]  publicly repudiates [her] advocacy for the legitimacy of abortion and confes[es] and receive[s] absolution for the grave sin in the sacrament of Penance."

The Catholic Church thinks abortion is murder.  It teachers that life begins at conception, the moment a sperm joins an egg to create embryonic cells.  There are a number of problems with this position. Morally, it claims to be based on natural reason, but the architect of natural reason, Thomas Aquinas, rejected the view that embryos are people and did not consider abortion to be the murder of a human person until much later in the pregnancy.  Theologically, it rejects both Aquinas's and Augustine's view of ensoulment, which was organic and also did not occur until well beyond conception. And politically, it rejects President Kennedy's belief "in an America where the separation of church and state is absolute -- where no Catholic prelate would tell the President (should he be Catholic) how to act [and] no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source".

JFK expressed these views in a famous speech he gave in September 1960 to the Greater Houston Ministerial Association in the heat of that year's presidential campaign.  Kennedy was only the second Catholic ever to have been nominated by a major party as its candidate for President and the first -- Al Smith -- had been defeated in a landslide thirty-two years earlier owing in large part to the fact that he was Catholic. Kennedy confronted  that prejudice head on in Houston, challenging America to eschew "religious intolerance" but also making it absolutely clear that the "statements of Catholic church leaders" were not "binding upon [his] public acts."

Without saying so, Cordileone rejects all of this.  His letter to Pelosi, which he made public the day he sent it, is not at all subtle.  In no uncertain terms, he is telling Pelosi "how to act" and refusing her communion (and directing the eighty-eight parishes under his control to do so as well) in order to force her to "publicly repudiate" her pro-choice position on abortion.  Were Pelosi to do so, she would, in Kennedy's words, be "accept[ing] instructions on public policy" from a "church leader" and making Cordileone's statements "binding" on her "public acts".

In his speech to the Houston ministers, Kennedy realized that there might come a time when his "conscience" interfered with his "oath of office."  In that event, he promised to resign.  Critically, however, he did not give any Catholic hierarchs a veto over that conscience or the right to tell him how to exercise it.

Pelosi should not do so either.

And she isn't.

In fact, she and other Catholic office holders are fighting back.

In the days following Cordileone's assault, Pelosi made it clear that she is not willing to impose her beliefs as a Catholic on the populace a whole.  At the same time, however, she also underscored how hypocritical Cordileone's position is.  The Catholic church, as she noted, claims it is pro-life.  But on numerous "pro-life" issues other than abortion, both it and Archbishop Cordileone refuse to impose any requirements on any public officials. They have not, for example, required any politician to vote against the death penalty, which the church categorically opposes, or threatened to withhold communion from Catholic politicians who support it. Indeed, as California's Governor Gavin Newsom pointed out yesterday, there are a host of pro-life issues -- from immigration to war and peace to climate change to gun control -- where those who oppose abortion are not pro-life at all.

Newsom -- like Pelosi and many other baptized Catholics (in fact, more than half of us) -- is pro-choice on abortion.

But, as far as he is concerned, he's pro-life too.

"There’s  a lot of folks out there that are pro-conception to birth,” Newsom explains, “but they fall wholly short of being pro-life." "Pro-life," he continues, means "you'd support pre-natal care.  You'd support infant health, you'd support child care and preschool. If you're pro-life, you believe in science, if you're pro-life you believe in climate change. But in every single one of these cases -- universally -- the same folks that claim or hold claim to this pro-life [stance] are cutting those programs [or] opposing expansion".

Three days ago, an eighteen-year old with an assault rifle walked into an elementary school in Uvalde, Texas and shot and killed seventeen fourth graders and two of their teachers.  In 2013, the Senate refused to pass a bi-partisan bill sponsored by Joe Manchin and Pat Toomey expanding background checks on gun sales.  Of the handful of Catholics who opposed that modest measure, none were criticized by any Catholic prelates even though all had, by their votes, made it easier to purchase assault weapons and thus made the carnage visited upon Uvalde more likely.  And as California Democratic strategist Dan Newman put it on Wednesday,  "Every damn day there's another reminder on how ridiculous it is for the party that wants more guns for everyone to call themselves pro-life".

America is unique in the number of gun-related deaths and in the number of mass homicides.  The rate of gun-related deaths is three to four times higher here than in other developed countries.  We also have more mass shootings than any other country. Despite the claims of the NRA and anti-gun control advocates, the reason for this reality is not that the United States has higher rates of mental illness.

It doesn't.

What it has is more guns. 

In fact,  though we have slightly less than 5% of the world's people, we possess  over 40% of the world's guns.

But on all those pro-gun votes by Republicans that have killed any form of gun-control in utero as it were, those votes that have made it impossible for us to stop our schools from becoming killing fields, San Francisco's ostensibly pro-life Archbishop and self-appointed enforcer of Catholic morality has been . . .

Silent.

And I don't have a problem with that.  

Although I disagree with their views, I also do not have a problem with Catholic bishops telling Catholics that they think abortion is wrong or with those same bishops exercising their Constitutional right to speak on the issue.  

When, however, they decide to tell public officials how to vote and try to leverage those officials into voting their way by withholding communion, they cross a line.

America is a pluralist republic. 

It has no established church and imposes no religiously generated litmus test on either its citizens or its government officials and elected representatives.  

For Catholics, that has been a blessing. 

Two -- JFK and Joe Biden -- have been elected president. Six now sit on the Supreme Court. Scores hold seats in Congress and in legislatures in all fifty states. We are free to practice our faith, or not, and no one assumes our public duties and obligations must or necessarily will conform to the dictates of our church’s hierarchy.  

Or at least no  one assumes that  . . .

Yet.

Cordileone’s attack on Pelosi upends this established assumption, undoes all that President Kennedy accomplished in 1960, and resurrects the possibility of inherent disqualification based on religion.

If it becomes the new norm, Catholics will discover what Governor Smith discovered in 1928.

He didn't lose that presidential election on election day.

He lost it the day he was . . .

Baptized.

Friday, May 13, 2022

WHY ROE WAS RIGHT

WHY ROE WAS RIGHT

In ninety-eight pages of attitude, alarm and anger, Samuel Alito has unburdened himself in a back-to-the-future effort to kill Roe v. Wade, the 1973 Supreme Court decision that forbade states from making all abortions illegal and allowed women and their doctors to make that decision for themselves.

Too bad.

Because . . .

Roe was right.

The United States Constitution was written in 1787 and ratified over the course of the next year plus. By June 1788, nine states had ratified, making the document binding on them according to its terms, and the rest joined at various times thereafter.  On May 29, 1790, Rhode Island became the last state to do so.

Ratification was no mean feat.  The so-called federalists in favor of the Constitution thought a reasonably powerful national government was needed to forestall the economic ruin inherent in a loose union of sovereign republics, each of which got to print their own money, impose tariffs on their own exports, and avoid collective responsibility for any Revolutionary War debts.  Their principal insight was that the liberty so many had fought and died for was in danger of becoming the anarchy of thirteen siblings unable to agree on anything other than the fact that they had removed the British.

For their part, the anti-federalists who opposed the Constitution deemed it an existential  threat to their liberty. They despised national power because in their minds it threatened local control.  They thought small-r republicanism could survive and prosper only  in small geographic units and did not buy James Madison's now-famous claim (in Federalist No. 10) that an extended or large republic would make faction less likely. 

To appease the anti-federalists, supporters in four states that ultimately voted for ratification also sent recommended amendments designed to protect citizens' rights.   In the first Congress,  James Madison proposed twelve of them and ten were adopted and became our Bill of Rights.

The word "privacy" does not appear in the Bill of Rights but there is no way to understand the Bill  without it.  This is especially so in the case of the first six amendments. The First says "Congress shall make no law" establishing religion, prohibiting its free exercise, or abridging  free speech, the press or the right to peaceably assemble and petition the government for redress.  The Second allows individuals to bear arms.  The Third prohibits the quartering of troops in homes without the homeowners' consent.  The Fourth establishes "the right of the people to be secure in their persons" and the Fifth and Sixth preclude arrest and imprisonment absent a grand jury indictment and trial by an impartial jury, the latter of which is preserved in civil cases by the Seventh while criminal penalties are categorically limited (no "excessive" bail or fines and no "cruel and unusual punishment) by the Eighth.  To be clear, the Ninth Amendment tells us that the enumerations in the Bill cannot be used to "deny or disparage other rights retained by the people" and the Tenth reserves unenumerated powers not just "to the States" but also "to the People".

In 1868, the Fourteenth Amendment to the Constitution was ratified.  It is one of the three Civil War Amendments.  Absent the war, it would not exist.  In fact, had the south not seceded, fought and lost a war, and then been reconstructed at the point of a gun and required to accept these amendments as a cost of re-admission, none of the Civil War Amendments would exist. 

But the south did.

And they do.  

And so the Fourteenth Amendment precludes any state from depriving anyone of liberty absent due process of law.

Given the Bill of Rights and the Fourteenth Amendment's due process clause, at least three features of these provisions make privacy -- the right to exercise one's own conscience and control one's own body --  an inherent right.  

First, all of the rights protected by the Bill are individual rights.  In fact, other than in the Second Amendment, none are made subservient to any collective or group goal or thought. Each individual can freely speak,  keep soldiers out of their homes, be secure "in their persons" and remain free absent indictment and jury trial.  And as part of "the people", each individual also retains unspecified rights which the (federal or state) law cannot "deny or disparage".

Second, some of the rights are so specific that they could not exist absent privacy.  The Third makes an owner's home his castle where no troops can live absent his permission.  The Fourth makes individuals secure "in their persons, houses, papers and effects" against unreasonable search and seizure.  And the Ninth literally warns that the list of rights is neither exclusive nor subject to infringement by the state.  They are retained by the people.

Third, the authors of the Constitution, Bill of Rights and Civil War Amendments were common lawyers versed in the language and categories of the common law.  As they understood it, that law evolves.  It is case based, fact specific, judge and jury made and over time accretes.  Had they wanted, both the Framers in 1787 and the authors of the Civil War Amendments in the 1860s could have frozen in time what was specifically protected.  They could have, for example, listed the specific punishments deemed cruel and unusual in the Eighth Amendment or the unwritten rights preserved to the people in the Ninth. They could have specifically defined the "liberty" that could not be deprived absent "due process" in the Fourteenth Amendment or precisely what they meant in guaranteeing every citizen equal protection of the law in that same provision.

They knew how to do all of this.

They did none of it.

In construing the Constitution and Bill of Rights in cases where neither document expressly mentions the claimed right in question, the Supreme Court has recurred over the course of the last eighty years or so to the notion that the Fourteenth Amendment's due process clause substantively protects "values 'implicit in the concept of ordered liberty'". This was the standard that Justice Harlan embraced in his concurring opinion in Griswold v. Connecticut, the 1965 Supreme Court case holding Connecticut's ban on birth control unconstitutional.  

In applying that standard, Justice Harlan said nothing about the history or tradition of birth control, either in the United States or elsewhere.  Instead, he perceived that liberty would be manifestly disordered by enforcing the statute.  As he put it: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptive? The very idea is repulsive to the notions of privacy surrounding the  marital relationship."

Since Griswold, some version of this concept of ordered liberty has been used by the Supreme Court  to overturn bans on selling or distributing contraception to unmarried adults (Eisenstadt v. Baird), sexual relations between consenting adults (Lawrence v. Kansas), gay and lesbian marriage (Obergefell v. Hodges), and, of course, abortion (Roe and thereafter Planned Parenthood v. Casey).  Each of these cases also involved rights not explicitly set forth in any Constitutional text and in each of them the enforcement schemes were manifestly disordered. Indeed, even before Griswold, the concept had provided at least a partial basis for overturning anti-miscegenation statutes (Loving v. Virginia).

Ten days ago, Politico obtained and published a copy of Justice Alito's proposed draft opinion overturning Roe v. Wade. Since then, Chief Justice Roberts has confirmed that the published draft is authentic but warned it is not the final opinion.  Nonetheless, in the days since Roberts' warning, so-called "conservatives close to the court" (three of them, actually) have reportedly told Politico that the majority support for Alito's draft is holding.  

On the right there has been a lot of sturm und drang condemning the leak and claims that opponents of Alito's draft must be the culprits. That, however, appears strained given Politico's latest sourcing. On the left, the suspicion is that conservatives leaked the draft to freeze the majority and inhibit anyone from changing their view and weakening what would be, if the draft holds, both a complete repudiation of Roe (and  Casey too) and complete deference to any state ban on abortion at any stage of pregnancy.  Indeed, it is at this stage difficult to imagine a more complete victory for abortion's opponents than Alito's draft opinion.

The flaws in Alito's draft are too numerous to catalogue in one place.

But here are three.

First, Alito got his law wrong.  

His opinion claims that no right to abortion can be found in the Constitution because the text says nothing about abortion and there is nothing in either our history or tradition that would require such a right.  He then claims that all the other cases affirming and enforcing a right to privacy (Griswold, Eisenstadt, Obergefell, Lawrence) are not in jeopardy because abortion is a special case.  But it isn't.  The reason those other cases apply is because in them, as in the case of abortion, there was no express textual reference to the claimed right but the Court nevertheless announced the right and forbade states from infringing it. There is no way those other cases survive Alito's draft if it becomes the actual law.

Alito's attempt to distinguish abortion from the other cases is also disingenuous in view of what he himself said in those other cases. In Obergefell and Lawrence he dissented and thus would have allowed states to ban gay and lesbian marriage and gay sex.  The basis for his dissents was that the Constitution did not expressly mention and could not be read to protect the asserted right.  He has run the same exact play in his draft overturning Roe.

Second, Alito got his history wrong.  

In his draft he claimed that "At common law, abortion . . . was regarded as unlawful . . . at all stages" of pregnancy.  This is false.  Until the 20th century, Americans did not even recognize abortions as occurring early in pregnancy, principally because they did not recognize pregnancy as a fact until quickening.  Moreover, the "history" that informed opposition to abortion after that point was largely misogynistic.  Indeed, the very expert Alito cites for his historic claim was a jurist, Matthew Hale, who burned witches and allowed husbands to rape their wives.  

Alito even distorted contemporary history. His draft states that, in 2018 when the Mississippi statute at issue passed, only six countries besides the United States "permitted non-therapeutic abortions upon demand after the 20th week of gestation". In fact, however, thirty-seven European countries allow abortions until at least 22 weeks upon request on broad grounds or based on the health of the mother.

Third, Alito got his politics wrong.

At two levels.

On the one hand, he claimed that the return of abortion to the states was no big deal because pregnancy is not the burden it once was.  As he put it, "leave for pregnancy and childbirth are now guaranteed by law in many cases" and "the costs of medical care associated with pregnancy are covered by insurance or government assistance".  In fact, however, less than a quarter of workers were eligible for paid family leave in 2021 and out-of-pocket costs for maternity care still average about $3,000 for those covered by employer-sponsored insurance.

On the other, he claimed that he was simply returning the decision on abortion to the people, to their elected representatives,  and removing it from unelected judges and therefore undemocratic courts.

This has been a standard conservative attack on Roe since 1973.

And it has been wrong since then.

To begin, the people, or at least the vast majority of them, support abortion rights. A year ago, Gallup reported that 80% of those asked said abortion should be legal in all or most cases.  This is not surprising. More than 90% of abortions are performed during the first trimester and there is no substantial opposition to that practice on a nationwide basis.  If anything, Roe is consistent with that consensus and Alito's draft is not.

Alito's flaw, and the flaw inherent in the claim of most abortion opponents on this point, is in assuming that state legislatures reflect the will of the people.  They do not.  They at best reflect the will of localized majorities on any specific issue and at worst reflect that localized view through whatever  distorted structures exist where any particular legislature operates.   Indeed, many if not most of the very states that will ban or restrict abortion  once Alito's draft is the law are also states that have recently passed laws suppressing turnout among Democratic (and likely pro-choice) voters and thus can hardly be deemed laboratories of democracy.

Alito was appointed by George W. Bush.  And of the four other Justices who appear to create the majority that supports his draft, three of them -- Gorsuch, Kavanaugh and Coney-Barrett -- were appointed by Donald Trump.

Bush II lost his first presidential election in 2000  by 500,000 votes.  And Trump lost his in 2016 by 2.6 million. Four of the five Justices about to overturn Roe  and deny the vast majority of Americans a right they have held for almost fifty years would not have gotten anywhere near the Supreme Court had Al Gore or Hillary Clinton been president.

The problem with abortion is not unelected judges.

It is unelected presidents.

Tuesday, April 26, 2022

SPEECH AND THE FREE MUSK-A-TEER

SPEECH AND THE FREE MUSK-A-TEER

On July 4, 1994, I was almost arrested.

Seriously.

I was running for Congress as a Democrat in what was then New York's 19th Congressional district.  It covered the northern half of Westchester County and then ran north into Putnam and Dutchess counties while crossing the Hudson to embrace four towns in Orange County.  

On that July 4, I was in Leonard Park in Mt. Kisco, ready to meet and greet the large numbers of voters who had come to the park that day to celebrate the Fourth.  

After I left my car and starting walking toward groups of voters to hand them campaign literature, a cop stopped me and told me I couldn't do that.  I asked why and he said that a local ordinance prohibited solicitation in the park.  I explained (I am a lawyer) that whatever the ordinance said, it could not really be meant to forbid political speech given the First Amendment.  He, however, was not remotely interested in any lessons in Constitutional law and told me that either I could  stop politicking  or he would march me out of the park in cuffs.

This presented a problem.

Leonard Park was only my first of many planned stops that day and our campaign was low on cash and thus very high on my ability to meet and convince as many voters as possible before the September primary.  If  arrested, I would have to spend the better part of the day in jail (or court), waiting for the Constitution to be vindicated in the leafy precincts of northern Westchester County, while my opponents (all of whom, I later learned, had meekly submitted to the no politics ban when they showed up at the park that day) went about their task of meeting voters.

So, I decided not to get arrested.

I did not, however, meekly submit to the town's ludicrous attack on free speech.

Instead, I made a small detour to the Mt. Kisco Police Department and filed a complaint against the police.  

My complaint was not well received.  

The desk officer made a point of reiterating that there was a no solicitation rule that applied to the park, that those celebrating the Fourth did not want to be bothered by people like me, and that -- in case I had any doubt -- he would never vote for me anyway.  He explained that the town had acquired the park from a private owner and that the deed specifically included a "no solicitation" restrictive covenant.  I thanked him for the information but explained that, while the restriction no doubt precluded salesmen for hawking vacuums to joggers, dog-walkers and the tennis crowd, it could not Constitutionally preclude candidates from distributing political literature on the Fourth of July.

As is sometime the case after people are through being angry but realize the source of their anger is still standing in front of them, he thought about this for a  bit and then allowed that I "might have a point".

Done there, I then went about the day's events.

All of this became local news over the course of the next few days.  

As noted, all of my opponents had agreed to leave the park and in their comments made a point of noting how politely they had submitted to the town's restriction.  The owner of a weekly newspaper published an editorial in which he argued that it was not too much to ask that a "politics free zone" be enforced in "bucolic" Leonard Park.  This prompted a concerned citizen to wonder whether that owner would have taken the same position if the town had set up a "reporter free zone" in the park.  That same citizen also wondered why I was the only candidate running for Congress who actually understood the Constitution.  

And was willing to fight for it.

Meanwhile, the town itself was having second thoughts. 

Its manager announced in the days following my near-arrest that it was reviewing its policy,  and later that fall the City Council actually voted to repeal the restrictive covenant.  

So . . .

I didn't go to jail.

And the First Amendment was, if not saved, at least not repudiated.

Yesterday, Twitter announced that it was accepting Elon Musk's $44 billion bid to acquire the company and take it private. 

Musk, an eccentric muti-billionaire who funded and became the CEO of the  electric car company Tesla and then created SpaceX so that (rich) people (like him) could "slip the surly bonds of earth", calls himself a First Amendment absolutist.  He claims that Twitter is the 21st century's "digital town square where matters vital to the future of humanity are debated."  He also claims that he "want[s] to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans."

In truth, no one knows exactly what Musk will do with Twitter once he takes it private.

He has been called "polarizing", "reckless" and "capricious".  He has exhibited a Trumpy affinity for personal insult and sexist jokes, and while Trump himself says he doesn't want back on the site, his wing of the GOP favors the acquisition, which may be good news for them but bad news for the rest of us.  For their part, Democrats are wary.  

Both of Musk personally and of the notion that any one billionaire should own a platform as powerful as Twitter.

For the First Amendment to function properly, it requires a forum, reasonable access, and actual speech.  You can be absolutist on the First Amendment but if you are absolutist on any one of those three pre-requisites, the likely result will be anything ranging from the anarchy of Babel to the monopoly of censorship. Neither, of course,  was the Amendment's intended result.  

If everyone gets access at once, there is Babel. If no one is given access at all, there is monopoly and censorship.   If no grammar or architecture is required, there may be sounds or signs but there is no speech.  Speech communicates.  It is not and can never be a one-way street.  The First Amendment does not exist to preserve our ability to talk to ourselves.  It exists to preserve our ability to talk to each other.  

What to do?

My (very) modest proposal is to return to Leonard Park in the mid-'90s.

In 1994, Mt. Kisco wasn't wrong in stopping the Fuller Brush man from setting up shop and hawking his wares on Leonard Park's tennis courts. It was wrong in stopping a citizen on the Fourth of July from discussing why he should be that district's Congressman with anyone in Leonard Park who wanted to have that discussion. In creating a "politics free zone", however much that move might have been welcomed in an age when politics and politicians are so despised, the town  killed core speech the First Amendment protects. Worse, it did so in one of the few remaining public venues where that speech would have been person-to-person.

The biggest problems with social media today -- with Facebook and Twitter and their countless imitators -- are the algorithms that determine access and therefore govern the speech conveyed.  I mean this literally.  Those algorithms govern the speakers and the speakers' messages because they effectively determine to whom those messages are delivered.  The architecture of "shares" and "likes" drives speakers into silos of the like-minded and highly motivated.  Often, the people who occupy those silos are very angry.  At the same time, the potential for domination by bots can drive a message that the actual marketplace of ideas, the one with real people in it, rejects. 

So . . .

At the end of the day, these platforms do not enhance free speech. Rather, they enhance loud or extreme speech . . .  

Or . . .

In a word . . .

Noise.

I do not know what Elon Musk intends for Twitter and am not sure he knows either.  

Musk is of the generation that fashions itself as disrupters.  And, to his enormous financial success,  he has made a habit of it.  

With Tesla, SpaceX, AI and even tunnels.  

So, with Twitter he will disrupt.  Maybe the platform's architecture will improve.  Maybe he will be true to his word and eliminate the bots.  Or maybe the Trumps of the world will find a new home and Twitter will become noisier and less communicative than ever.

As I said, I do not know.

What I do know is that I'd feel a lot better about Musk if I thought his view of the First Amendment was grounded.  

To do that, he need not take a trip to outer space.

Leonard Park will do.

Thursday, April 14, 2022

EASTER 2022 -- THE ESSENCE OF JOE BIDEN

EASTER 2022 -- THE ESSENCE OF JOE BIDEN

It's very hard to be an optimist these days.

Inflation is as high as it's been in forty years.  Political opportunists in the Republican party are embracing that fact and sending it into battle in an effort to rid Congress of Democrats and the White House of Joe Biden.  

The media -- ever wary of being tagged as liberals and therefore ever-vigilant in making sure that GOP talking points get more than their fair share of time -- remind us of all of  this every day.  If we liberals push back, they point out that the contrary voices are being published.  

And they are . . .

Sort of.

But it's not front-page headline news.

You have to look.

For those willing to leave the front page for the distant recesses of the op-eds, Paul Krugman argues that the current inflation is more pandemic and supply-related and therefore more like the rising prices just after World War II than the endemic price hikes of  the 1970s.  The message is this is not transitory but it isn't endless either.  

For those willing to read The American Prospect, Robert Kuttner will point out the corporate profiteering helping to drive  the price side of the equation and the absence of the kind of social policies (child care, principally) needed to help combat a tight labor market. Yes, Virginia, available day care for the kids and health care for grandma will put a lot of people back to work and -- get ready for this -- increase the supply of workers, increase the supply of goods, and drive down prices.  

For those willing to subscribe to Heather Cox Richardson's substack-based Letters From an American, she'll recite the stupendous job growth over the last fifteen months, the fact that Americans survived the pandemic with more money in their bank accounts thanks to the government, and the reality that Covid could have been a personal economic catastrophe for more of us.  

The worst thing that can happen with Covid is that you die.

The second is that you get sick.

But bad as it was, second place could have been a lot worse.

Winding up sick is bad.  

Winding up sick and broke is . . .

As the toddlers say . . .

More bad.

We didn't.

And we have jobs.

Thank you Joe Biden.

Can I get an Amen for the guy?  Or a Hallelujah?  Or even some grudging respect?

Alas . . .

No.

The American memory is short.  And when its media eco-system is plagued with fact-free actors whose self-interest is advanced by forgetfulness, it becomes even shorter.  There's no sane world in which Donald Trump should beat Joe Biden in any 2024 re-match.  But in today's polls, they're even and some have Trump ahead.  So . . . 30,000 lies, "fine people" among neo-Nazis, ingesting bleach, pussy grabbing, the imminent destruction of privacy, reproductive and gay marriage rights by his three appointees to the Supreme Court, and an attempted coup on January 6 have been . . .

What?

Forgotten.

Well, that's how you get a Joe Biden stuck with an average approval rating of 41% for the past two months, notwithstanding a booming economy with the lowest unemployment rate since 1969, NATO resurrected from the prior administration's not too subtle attempt to kill it, and a war in Ukraine where the good guys are holding their own and may even beat the KGB autocrat who runs Russia and who Trump never had a bad word for.

Spare me the chorus of GOP naysayers who claim Biden didn't do enough early enough to arm Ukraine or sanction Putin and his cronies.  

Their guy froze $400 million in military aid in an effort to bribe Ukraine into investigating Hunter Biden, and regularly threatened to have the United States withdraw from NATO  and thus eliminate the only real threat restricting Putin's appetite for reconstructing present-day Russia in the model of his beloved USSR.  If Estonia, Latvia and Lithuania remain free, it will only be because they are now members of NATO.  And if Ukraine beats Russia, it will in part be because the western world united to provide the arms needed to do so.

I think it's way too premature to count Biden or the Democrats out.

In either the mid-terms or 2024.

Much of the populist energy that became wind in Trump's sails was based on their anger at a neo-liberal consensus that had led to gross inequality.  The Democrats are the only party at least trying to mitigate some of that.  The GOP is good at allowing Fox & Friends to stoke anti-Biden sentiment with the latest faux outrage over non-problems -- kindergartners aren't being groomed to change their sex and Ketanji Brown Jackson didn't go easy on pedophiles.

But that's all they have.

They can't confront inequality because they actually . . .

Are for it.

Nor has Biden exhausted his appeal.

He wasn't supposed to be a Senator in 1972 or a President in 2020.  He's stared death in the face and suffered personal tragedies that would have rendered most of us unwilling or unable to carry on.  But he did. In the words of his beloved Pope Francis spoken just this past Palm Sunday, he knows "things are never over . . . [W]e can always come back to life."  

When he spoke these words, the Pope was talking about forgiveness and redemption and preaching the faith that  his resurrected God (and mine) "can bridge every distance, and turn all mourning into dancing."

He certainly did not have Biden's political survival in mind.

But he could have.

For Biden has repeatedly come off the canvas, counted out only to return and be counted on.  

And  he is doing it again.

With NATO and Ukraine in a diplomatic coup de theatre that just might save western democracy from both the autocrats' whip and its own ennui.

And  with an economic plan that might ameliorate some of the inequality neo-liberalism created and wean its populist victims from Trump and the right wing's phony culture wars.

In their rush to judgment, the critics constantly miss the  essence of Biden:

There's always been a little Easter in him.