PROFILES IN (DIS)COURAGE(MENT)

PROFILES IN (DIS)COURAGE(MENT)

It is, frankly speaking, depressing.

The Grand Old Party is about to nominate a grand old fraud.

The misogynist, congenitally uninformed, race-baiting birther and tweeter-in-chief, Donald Trump.

What went wrong?

Even the post-mortems are depressing.

The conventional view is that the Republicans are now reaping the whirlwind they have been sowing for over forty years.  Going back to Nixon's tough-on-crime appeals to the silent (and mostly white) majority, through George H.W. Bush's turning Willie Horton into a poster child for liberalism's ostensible idiocy, to Romney's trope on the 47% who believe they are "victims" "dependent on government" (we all know who they are), the dog whistles on race have, it is said, come home to roost.  The party of Lincoln has been reduced to a rump caucus where (mostly) angry, un- or under-employed white men easily swallow the Trump lie that illegal immigrants, affirmative action, feminists, foreigners and minorities (including the current President) are responsible for their plight.

There is a lot of truth to this view.

But there is also a lot about it that is false.

Because it lets the GOP elites off the hook . . .

Way too easily.

The plain fact is that opposing Donald Trump should have been a no-brainer for any Republican office-holder in this country.  The list of disqualifiers was so long that none of them needed to wait much longer than a nano-second before declaring their opposition. 

Whether you focused on Trump's support for the birthers (a truly psychotic bunch who spent years questioning Obama's birthright citizenship), his misogynistic comments on women ("fat pigs," "dogs," "disgusting animals"), his racism (undocumented Mexican immigrants as "rapists" and "criminals"), his equivocation on David Duke (who everyone knows is a white supremacist but about whom Trump professed ignorance), his modern day brown-shirtism (telling supporters to "punch the crap out of" protesters; he'll pay the legal fees if the "punchers" are charged), or his ignorance on fundamental issues of policy  (as in what constitutes the nuclear triad or whether, after seventy years of bi-partisan non-proliferation, we should be encouraging any country to go nuclear), Trump  offered an almost daily-reason to say "be gone."

And even if  none of the Republican elite, being politicians, needed to analyze the necessity of disavowing Trump much before seeing the poll numbers he was generating last year in the run up to the primaries and caucuses, the responsibility to get rid of him -- or at least try very hard -- became unavoidable once he started winning.

But the vast majority of them sat on their hands . . .

And are still doing so.

The latest equivocator is Indiana Governor Mike Pence.  He announced yesterday that he thought Trump was "great" but would vote in the next week's Indiana primary for Cruz.  This was considered an endorsement for Cruz.  In truth, however,  it was more in the nature of a "who cares."  It's as if a German in the summer of 1932 said "I'm voting for the Centre Party but congrats to Adolf, who sure is telling the post-Versailles world -- and all those bankers -- a thing or two." Lindsey Graham lauded Pence for "standing up for conservatism" in endorsing Cruz.  But Chris Cillizza of the Washington Post was right when  he called Pence's "stand"  more of a "crouch."

Pence's approach, however, has been pretty typical.  Just before the Pennsylvania primary last week, that state's incumbent Republican Senator Pat Toomey announced that he too was voting for Cruz. 

Others have not been even that forthright.

New Hampshire's top Republican (and Senator), Kelly Ayotte, has remained neutral in the Presidential contest, as has Republican Sen. Ron Johnson of Wisconsin.  Both are up for re-election this year. Though only ten members of the Republican caucus in the House have endorsed Trump, of the remaining 236 GOP members, 233 of them have been silent on the choice that remains.  The other thirty-three have endorsed Cruz, who has thirty-two supporters, or Kasich, who has one (to go along with his long list of former members endorsing him).  On the Senate side, of the fifty-four Republican Senators, six have endorsed Cruz, two have endorsed Kasich, and one has endorsed Trump.  That means forty-three GOP Senators remain neutral.

These people should be embarrassed.

For years, the whole group of them has regularly criticized Obama for ostensibly "leading from behind" (which, to them, means "not at all"). In their world, the current President has taken a back seat to Islamic fundamentalism (and its terrorist results), refusing to credibly engage while allowing or encouraging power vacuums and issuing false threats .  The charge is false; in fact, what Obama has done -- in the face of a reality that renders American ground troops ineffective in what are now civil religious wars in Mesopotamia -- is lead through persuasion and diplomatic initiative, something the neo-cons decided to put on the shelf over a decade ago, much to our everlasting chagrin, but which  has created (albeit slowly) measurably positive results (e.g., the nuclear deal with Iran, and the multi-lateral (and largely local) pushback against ISIS).  To the GOP, this is all still a failure.

Nevertheless, you would think that a group hell bent for leadership would  at least have seized the obvious opportunity to exhibit some as a fraud like Trump hijacked their presidential nomination.

Because . . .

If those 233 GOP members of the House of Representatives and forty-three GOP Senators had collectively led the fight to rid their party of Trump, there was at least a reasonable chance he would not be the GOP's presumptive nominee today.

Dante is reported to have said that "The hottest places in Hell are reserved for those who in time of moral crisis preserve their neutrality."  In fact, he didn't say it.  Instead, President Kennedy attributed the quote to him, as have many others using variations on the theme.  

Never mind.  

JFK's Dante was right.

And today he is looking at all those Republican office holders . . .

Sitting on the sidelines . . . 

As the Donald marches on.

A TERRIBLE BEAUTY

A TERRIBLE BEAUTY

Here's the weird part.

I may have to thank Donald Trump.

Who got me thinking about immigration.

I am Irish and proud of it.  My full (and formal) name -- Cornelius Patrick McCarthy -- shouts Irish from the rafters.  I will regale any who listen with tales of great grandparents and grand uncles and aunts from Cork who came and manned the mills in Lawrence, Massachusetts and the precincts of New York City.

Of course, I am not  actually Irish.  I am American.

And though Americans whose grand parents were born in Ireland  can become dual nationals, I am not one of them either.  All my grandparents were born here.  In fact, that fourth paragraph is a bit of a stretch.  

Because, truth be told, three quarters of my great grandparents were born here as well.

So, is this whole Irish thing a big put on?  Am I just one of those white-haired, fair-skinned, unmistakably celtic-looking pretenders who wears green,  eats corned beef (which the Irish themselves do not eat),  and dodges drunks  on Paddy's Day?

Or am I the real thing?

In fact, what is the real thing?

And that's where The Donald comes in.

After the insults, adolescent narcissism and misogyny,  Trump's signature move in this presidential season has been his stand on immigration.  There are three parts to his dance.  First, there is "the Wall."  "A nation without borders is not a nation," says Trump; what he really means, however,  is that "a nation which can't keep out illegals is not a nation."  So Trump will build a wall across the 1,954 mile border between the US and Mexico, and every time Mexico complains, the wall will get bigger.  

Second, there is the racist xenophobia.  At the announcement of his candidacy, Mexican immigrants became "rapists" and "criminals" -- who were "not you" -- being sent north by a country off-loading its undesirables.  

Finally, xenophobia and nativism on immigration is side-carred with religious bigotry as a tool in the fight against terrorism. In this phase of Trumpism, the need for better intel and -- in Europe -- interstate coordination and information sharing is either jettisoned (or put on hold) as the principal approach in exchange for a wholesale ban on non-citizen Muslim entrants into the country until the government "can figure out what is going on."  It is apparently irrelevant that the government has already "figured out" that the vast  majority (99.99%) of Muslims are not terrorists.  

Or that most terrorist acts since 1985 have been committed by non-Muslims.

It's very easy to chalk all this up to Trump's inherent flaws.  He is a clown, a charlatan and a con-man. He has no respect for truth or facts.  He is immature in ways that are both clinical and scary.

Nevertheless, his views on immigration are shared by a large group of Americans who share none of these flaws.  Which begs the ultimate question.

Which is . . . 

Why?

Here is my answer.

Trump is plowing very fertile ground.

At least three myths define the story of immigration in America.  The first is the myth of the melting pot and its first cousin -- assimilation.This is a myth about history. It claims that, in our nation of immigrants, everyone who came somehow morphed into an androgynous American whole.  The second is the southern border myth; this is the one Trump highlights with impunity in  his "a nation without borders is not a nation" mantra; it treats the line between Mexico and the US as inherent (and sacred) when in fact it was accidental (and utterly profane).  The third is the illegality myth, the notion that the number of illegal or undocumented aliens is increasing and reeking economic havoc, principally in the form of wage suppression.

These are myths because none of these claims are factually correct. As a general rule, immigrants historically have learned English and integrated into the American economy.  They have not, however, assimilated, at least not in the sense set forth in the dictionary, which defines the word to mean one who conforms to or resembles the group. In fact, to the contrary, immigrant groups stuck together and still do.  Each group brought its distinctive cultures, foods, and prayers to these shores. They may have acquired a new identity, but they did not lose their old one.

The southern border myth is equally mistaken.  There was nothing pre-ordained about our southern border,  and it certainly cannot be used to define the nation.  The border itself was the product of a war -- the Mexican-American War of 1846 -- fought largely as a consequence of a linguistic dispute over which river properly constituted the Rio Grande separating the two countries.  Texans thought it was the southern Rio Grande and Mexicans thought it was the northern one, which Texans called the Nuesces.  Today that dispute would be arbitrated.  In 1846, however,  it became the pretext for a show of force designed to provoke an attack that would allow the US the seize the greater part of what was then northern Mexico (and is now our southwest plus California).

It did.

And then the US did.

One of the ironies is that the Mexican-American War was itself rooted in the earlier war between Texas and Mexico, an earlier war caused by Mexico outlawing slavery in 1829 and making American immigration into Texas (then a Mexican province)  illegal.  This, however, did not stop the Americans, who entered illegally anyway and then later fought for and won their independence. (Remember the Alamo!)

The irony, of course, is that Americans were illegal immigrants into Mexico long before any Mexicans violated "our" southern border. Another irony is that, once the US prevailed in the war, the largest part of the new southwestern US and California was composed of hitherto Mexican citizens and was marked by an Hispanic culture that left its imprint on law, architecture, and names.  Today, the oldest capital city in the US is not located in New England or Virginia.  It is located in Santa Fe, New Mexico.  And the coast of California is not dotted with cities and towns named for dukes or English shires. The names are largely those of Catholic saints provided by Spanish missionaries.

In any case, so much for the sanctity of the southern border.  It definitely established a boundary.  It did not, however,  define a culture or a nation.

Then there is the illegality myth, the myth that more illegals are entering than leaving and that they are doing some kind of permanent damage to our economy.  It is false on both counts.  On the one hand, the population of undocumenteds or illegals has declined significantly over the last nine years and more are now leaving than coming.  On the other, economic studies have shown that immigration -- including the work of undocumented immigrants -- is a huge plus for both the economy as a whole and even for low income workers.  In fact, President Bush's own Council of Economic Advisers estimated in 2008 that American workers actually make $30 billion annually in wage gains as a result of immigration.

So, where to from here?  

Trump is only the latest xenophobe.

There is, however,  no way we can even hope to make him the last unless we eliminate the myths.

And tell a new -- and more accurate -- story about our "nation of immigrants." 

In that new narrative, America is not a melting pot.  It is a mosaic.  It is stitched together to be and remain whole.  But its parts are distinct -- multi-colored and multi-textured.  Each of us who claims immigrant heritage (and, since most of us must, even those who blindly ignore it) is a hyphenated American.  (Or, as Will Ferrell put it in a recent SNL skit, "Unless your name is Running Bear, we are all anchor babies.").  What makes me American are the values enshrined in the Declaration of Independence and Constitution, not the the line drawn between me and Canada or me and Mexico. 

And what makes me Irish are my ancestors and (therefore) my genes. There is nothing phony about it.

The poet William Butler Yeats once wrote: 

               
                                Now and in time to be,
                                Wherever green is worn,
                                Are changed, changed utterly:
                                A terrible beauty is born.

Though he  was speaking of the Irish Rising of  1916, his words are as apt for the Irish immigrants who peopled these shores by the millions in the 19th century.  In art, literature, music, politics and sport, those immigrants changed the face of America.

Which today basks in the "terrible beauty" they -- and all their immigrant neighbors -- created.

PS --  A larger version of this essay was presented as the Spring Honors Lecture at Mt. Aloysius College in Cresson, Pennsylvania on St. Patrick's Day.  For any who are interested, the link to that lecture is available here.

THE DONALD DILEMMA

THE DONALD DILEMMA

The last Republican debate took place last night and by their standards it was a remarkably civil affair.

No name calling or insults.  No references  -- as my daughter put it after their last debate --  to the size of anyone's "downstairs."  No shameless hawking of vodka or steak or wine.

And therein lies Donald Trump's problem.

Here's what I mean.

For the last eight months, Donald Trump has run a campaign for the Presidency based largely on the notion that he is not politically correct and is just saying things others are thinking but do not have the courage to broadcast.  Hence his condemnation of Mexican immigrants as "rapists," his wholesale exclusion of non-citizen Muslims, his "punch him in the face" thuggery when confronted by protesters.  

At the same time, he has abjured any argument or real details on policy in taking on his fellow candidates.  So, instead of really explaining how his positions on Social Security or trade or immigration or beating terrorism were better than those offered by his opponents, he touted his poll numbers and spouted phrases and one liners (he'll make "great deals" on trade; it'll be a "great wall" excluding Mexicans; our military will be so "powerful . . . we're never going to have to use it").  

And then simply belittled his adversaries.

The puerile ad hominems are now the stuff of minor legend.

Jeb Bush was "low energy."  Chris Chistie was "the bridge."  Carli Fiorina was "that face" that could not be President.  Dr. Ben Carson was "pathological" and the voters "stupid" in being taken in by Carson's  knife-on-belt assault story.  And, of course, Senator Rubio was "little Marco" and Senator Cruz "lyin' Ted." With no body part to pick on, and no doubt running out of rhetorical steam, Trump's train of insults slowed when it got to John Kasich -- he was merely an "absentee Governor" and a "lost cause."

Last night, however, we got none of that.  Instead, Trump's competitors were left to more less trot out their positions at length, as was Trump himself.  The problem, however, is that Trump really doesn't have any positions.  He has slogans and one liners.  But  if you throw him into any pool that requires mildly deep analysis of policy, he drowns.  

As he did last night.

The best example of this in the debate was the back and forth on the Administration's new Cuba policy. As he is on a number of issues, Trump is actually to the left of the GOP field when it comes to Cuba. In deriding the recent status  quo, he correctly asserts-- and said last night -- that "50 years is enough."   Though he claims he would have "made a better deal, " he thinks -- and said last September -- that rapprochment "is fine." 

Seizing an opening, and playing to the anti-Castro home crowd at the University of Miami where the debate was held, Senator Rubio then pounced, laying out  five things he would have had Cuba do before agreeing to a renewed diplomatic relationship -- free elections, free speech, removal of Chinese listening stations, no assistance to North Korea, and the extradition of criminal defendants who have taken refuge on the island.

Rubio's -- and (sans Trump) the entire GOP's -- essential criticism of the new policy is that it does not eliminate or even mitigate Cuba's human rights violations, which is true.  The problem, however, is that the embargo imposed on Cuba for the past five decades hasn't stopped those violations.  In addition, and as is the case with most embargoes that fail, the rest of the world has not been on our side. Consequently, while the embargo hurt Cuba and stopped it from trading with what should be its natural and largest trading partner -- namely, us -- it did not cripple the regime or the island. 

Engagement may not end anti-democratic abuses in Cuba.  

But disengagement clearly did not end such abuses and Cuba itself is on the cusp of change.  

The Castro brothers are old.  Fidel has retired and Raul, the current President, is 84.  Neither will last forever and when they are gone, there is no one who can combine the offices of Presidency and Premier the way they have. 

A few years ago I had lunch with a minor Cuban official working at the UN.  He told me that the Castro presidency was unique and would not be duplicated; that Castro was their "George Washington" (he left out the fact that Washington resigned his military commission after the Revolutionary War and left after two terms as President, but never mind for now); that once gone, the Cuban President would simply be a head of state and the Cuban Premier would do policy.  

This is important.  Because, without the power inherent in the duopoly the two Castro brothers  have enjoyed, dictatorship is not as possible or likely and space opens for a more pluralistic politics.  This does not mean a new Cuba will reject socialism.  But it very well may reject Castro-ism, a hard line variant of socialism that rejects even the type of market approaches China has adopted over the last two decades.

And even at this early stage, there are some signs that this may be the case.  Cuba itself, as we all know, is in love with baseball  (that love has even spawned the apochryphal tale that Fidel tried out for the major leagues).  Until now, Cuban ball players have been barred from playing in the United States, and those that are doing so have effectively renounced the island and their relatives.  With the rapprochment, however, Cuba's athletes will soon be able to try out and play in the major leagues without having to flee the island.

That's small progress.  

But it is progress.

And it would not have happened under the old policy that Senator Rubio and the rest of the GOP would have us return to.

An informed opponent could have pointed some or all of this out in last night's GOP debate.  But Donald Trump is not such an opponent and therefore did not do so.  In fact, beyond the repetitive "I-would-have-made-a-better-deal" mantra, he said nothing in response to Rubio's critique. 

Which is why he needs the insults, the narcissim, the thuggery.

It fills the space -- at debates, at rallies, at press conferences -- that would otherwise be filled with the exhibition of knowledge and policy 

Hence the Donald dilemma.  

He either gets to show us -- as he did last night on the Cuba issue and many others -- that he is uninformed.

Or he gets to show us that he is an insulting, narcissistic and even dangerous boor -- as he has throughout the entire primary campaign.

Either way . . .

He loses a general election.

ANTONIN SCALIA

ANTONIN SCALIA

I remember when I heard his name for the second  time.

The first time was in the summer of 1981.  Ronald Reagan had been President for about seven or eight months and The New York Times ran a story listing a group of law professors he intended to appoint to the various U.S. Courts of Appeals.  Scalia -- along with Posner, Bork, Winter and Easterbrook -- was on the list.  All of them were ex or current law professors.

And constituted President Reagan's brigade of conservative intellectuals.

The second time was about a year to two thereafter.  By then I was working as a law clerk for one of Reagan's brigade.  In between bench memos, opinion drafts and editing conferences, we clerks drank coffee and socialized with the judge (who, by the way, are in need of constant socializing for the simple reason that being an appellate judge is a very lonely job).  At one of those coffee klatches, we were speculating on who President Reagan would pick as his second appointee to the Supreme Court (Sandra Day O'Connor had been his first, very early in his initial term.)

The Judge's candidate was . . .

"Nino" Scalia.

Who, by then, I had totally forgotten.

When I asked why that would happen, the answer had nothing to do with judicial philosophy or originalism or antidotes to liberal activism.  Instead,  according to my boss, Scalia would get the nod because he was Catholic and Italian.  At the time, the Supreme Court lacked the latter and had only one of the former.

Wow!

I never thought I'd ever say this .

But let's bring back the good old days . . .

When politics was normal and even Supreme Court justices were evaluated by more than their fidelity to extremist ideologies.

Because we are nowhere near normal today.

Justice Scalia, as everyone now knows, died yesterday.  Instead of a bi-partisan period of mourning, we have been catapulted into a year long political mud wrestle.  In the not too long ago old days, Justice Scalia's death would have been greeted with a bi-partisan period of mourning -- one where opponents and adversaries praised the intellectual firepower, side-splitting humor, and genuine loyalty of the man.  Today, however, Nino's passing to the other side is met with an obligatory nano-second of condolences, followed by a torrent of hypocritical posturing.

This is all so childish.

Indeed, so much so  that we have to revert to kids rules even to referee the contest.  Under which, the first comment that has to be made is  .  .  .

Sen. McConnell started it.

That's right.  

Within an hour of the announcement of Justice Scalia's death yesterday, McConnell issued a statement saying that the seat on the Supreme Court left vacant thereby "should not be filled until we have a new President."  McConnell asserted this was necessary because "the American people should have a voice in the selection of their next Supreme Court Justice."  Of course, the American people already had such a voice.  They exercised it in 2012 when they re-elected Barack Obama to the Presidency, a position which -- on this issue -- comes with a written job description -- called the Constitution -- entitling the holder to nominate justices to the Supreme Court when vacancies arise. Though conservatives like McConnell regularly praised Justice Scalia for a commitment to enforcing our founding text as written, that rule apparently has been waived in the last year of the Obama presidency.

McConnell's hypocrisy was then met with a cascade of supporting endorsements.

In the Republican debate last night, five of the six left in this season's crop of GOP ideologues agreed that Obama either shouldn't -- or would not be allowed to -- fill the vacancy.  (The outlier was Jeb Bush,  who -- given his relentless attacks on Trump and now unique willingness to abide by the Constitutional rules on selecting members of the Supreme Court -- has become the only GOP candidate I can remotely respect.)  In any case, the Gang of Five claimed there was "precedent" for this refusal, invoking at or after the debate different versions of the assertion made by Republican Sen. Grassley that "It's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year."

That claim, however, gives hyperbole new meaning.

At one level, it is demonstrably false.   If eighty (80) years is a cutoff, then there have been at least two instances where confirmations have occurred in presidential election years. Justice Butler -- a Roosevelt appointee --  was confirmed in 1940,  and Justice Kennedy, though nominated by President Reagan in November 1987, was confirmed after hearings were held in 1988, both Presidential election years. 

The notion that there is something magical about eighty years is also sheer nonsense. In fact, the reason Grassley chose it is because, before 1940,  there had been numerous Supreme Court nominations and confirmations in presidential elections years. President Taft did it in 1912; President Wilson did it (twice) in 1916; and President Hoover did it in 1932.  Among those ostensibly politicized jurists who, in Sen. McConnell's words, the American people never had a "voice" in selecting were Justices Brandeis and Cardozo.  Brandeis was one of Wilson's appointees in 1916 and Cardozo was Hoover's in 1932.

Neither, of course, were judicial lightweights.

In fact, both of them became giants on the Supreme Court, lauded in their day with the encomia being laid at the feet of Justice Scalia today.

On Meet the Press this morning, conservative talker Hugh Hewitt said the Kennedy confirmation in 1988 didn't count, ostensibly because the nomination came in late '87 (oh what a difference two months makes) and followed the Senate's rejection of President Reagan's original nominee for that vacant seat (Robert Bork).  (Hewitt would say the same thing about the 1912 and 1940 confirmations because, in each case, those nominations were announced late in the year before.)

As with many explanations designed to fit pre-determined conclusions, this one turns out to refute itself.  On the one hand, the Senate's deliberations and vote on the Kennedy nomination -- namely, all the interesting and contentious stuff -- occurred in a presidential election year, as will be the case when Obama sends his nominee to the Senate this year.  The two circumstances are perfectly comparable.  On the other, apart from Constitutional requirements, the reason hearings and deliberations had to go forward on Justice Kennedy (after the Bork rejection) is that the Court would have been operating for too long without a sitting ninth justice.  It would have had only eight members instead of nine, creating the possibility of four to four splits.

The problem of equal division cannot be gainsaid.  Without Scalia, the present Court on most contentious issues -- abortion; the right of unions to charge non-members a fee for having negotiated wages; the death penalty; whether Obamacare is authorized by the commerce clause -- is now split four to four. The consequence is that it really cannot decide anything on those cases or issues. Granted, some of them are over (e.g., whether the commerce clause authorizes the Affordable Care Act; it doesn't under current precedent but the taxing power does so the ACA is constitutional). Others, however, are alive and on the Court's current docket.   

If the Court hears these cases and remains deadlocked at four each, the lower court decisions and orders will be deemed "affirmed by an equally divided Court."   In other words, the Supreme Court will no longer be supreme.  Instead, that honor will fall to a lower panel of appellate judges.  And it gets worse.   The federal appellate courts -- there are twelve of them throughout the country -- are often split on issues; in fact, disagreement among the various appellate circuits, and even within them, is a typical reason the Supreme Court agrees to hear a case in the first place.  With a deadlocked court, those splits remain and what is illegal in one jurisdiction can be legal in another. 

That's not the rule of law.

It's chaos.

Had the Democrats not gone forward with hearings and a confirmation vote on Justice Kennedy in 1988, the seat he filled would have been left vacant for more than a year.  If today's Republicans do not hold hearings and confirm an Obama nominee, the vacancy period will be as long.  In 1988, the Democrats controlled the Senate, just as the Republicans control it today.  Had the Democrats wanted to, they easily could have refused to go forward with hearings on Justice Kennedy and taken their chances on winning the Presidency.  But they didn't. 

Because . . .

Sometimes politicians really do put country first.

Finally, there is the whole question of what -- precisely -- Sen. Grassley means when he says there is an eighty (80) year-old "standard practice" of  avoiding Supreme Court confirmations in presidential election years.  As far as I can tell from the historical record, this has occurred only once, with Abe Fortas's nomination to replace Chief Justice Warren in 1968, and in that case, President Johnson did not pull the nomination because it was a  presidential election year; he pulled it because the nomination was being filibustered on a bi-partisan basis.

In Sen. Grassley's arbitrary eighty years, the only other time -- after Justice Kennedy in 1988 --  there was even the possibility of an election year nomination and confirmation was in 1956 when Justice Brennan replaced retiring Justice Minton.  In that case, however, far from refusing to go forward, President Eisenhower actually put Brennan on the Court with a recess appointment that did not even require Senate action. (Though Brennan was thereafter re-nominated and confirmed in 1957 when the Senate was back in session, no one appears to have drawn and quartered Ike for having jumped the appointing gun in a presidential election year.)

Why are we in this mess?

The answer is division,  and -- frankly -- a Republican Party bound by nothing other than the hypocritical assertion of its raw power.  The arguments about "standard practice" and allowing the American people a "voice" are transparently false.  There has been no standard practice (if anything, there's been the opposite) and Americans decided three plus years ago who should fill a Supreme Court vacancy were it to occur in 2016.  They did that in 2012 and the guy they chose was Obama -- not Romney, or any of the six Republicans now running for President, or even Hillary or Bernie Sanders.  None of them has the right to make this decision and giving it to any of them would not honor the Constitution.  It would demean it.

The GOP is preemptively telling Obama it will not go forward on anyone he sends up for one and only one reason.  And that is this . . .

It can.

And, unfortunately, the reason the GOP embraces this raw assertion of power, draping it in a curtain of false justifications, is that this approach worked in the past.  In fact, it worked in the not too distant past . . .

In 2000 . . . 

When five unelected justices invented an equal protection claim that had no precedential support, stopped a re-count which had been ordered by a state Supreme Court, effectively got to vote twice, and then (illegitimately) put George W. Bush in the White House.

One of those Justices was Antonin Scalia.

I praise his intellect, his devotion to public service, his sense of humor, his enormous family, and his close friendship with the liberal Justice Ruth Bader Ginsburg, the latter of which proves he did not take himself too seriously and which -- in the ethereal circles he travelled for almost thirty years of his life -- was a very good thing.  

I am proud he and I graduated from the same Jesuit high school -- Xavier -- in lower Manhattan.  The Jesuits know how to educate people and in his case they obviously did not fail.  

Nevertheless, Antonin Scalia wasn't a genius and his jurisprudence created more problems than it solved.  The invented basis that led to the appointment of Bush II was one of them; we are still dealing with its consequences at home and abroad.  But there were others, principally in the form of an asserted devotion to text that proved to be much less consistent, and much more unbounded, than he (or his legion of conservative supporters) claimed it to be.  Contra Scalia, the Constitution is not a "living" document because a bunch of liberal ex-law professors sitting on the Supreme Court say it is.  It is a living document because the founders used words -- like due process and equal protection -- that do not have fixed meaning.  Today's conservative jurists rarely see this.

So . . .

May Justice Scalia  rest in peace.

And may the rest of us survive his legacy.

WHAT'S WRONG WITH DONALD TRUMP

WHAT'S WRONG WITH DONALD TRUMP

I am writing this just before the Iowa caucuses are set to begin. According to the latest polls, the GOP caucus is a dead heat between Donald Trump and Ted Cruz.  Rubio is a distant third, followed by everyone else far back in the pack.

Over the course of the last year, no one has been able to de-rail the Donald.  The other candidates have failed, even when they have tried (and most of them haven't).  Ditto the media.  Jeb Bush was not far from the truth in the last Republican debate -- the one without Trump (which also seems not to have dented him) -- when he said that most of his co-candidates were MIA earlier in the year when he tried to take on Trump. 

Actually, Bush the Third said they were in the "witness protection program."

But, for our purposes, that's basically the same thing.

In any case, this teflon Trump has everyone flummoxed.  

No one can figure out what is wrong with him, though all are certain something has to be.  His polling floor (about 35%) seems also to be his ceiling, making it difficult for him to grow his vote.  His campaign is based almost entirely on insult; in fact, the New York Times yesterday published an exhaustive list of all the insults he has tweeted over the course of the campaign, as well as all the targets of his vitriol; the list reads like it's the work of an over-testosteroned adolescent (which it well may be).  

His policy proposals border on being stupid, whether they're about building a wall across the southern border (expensive and utterly unnecessary given the fact that more illegals are leaving than arriving), or stopping non-citizen Muslims at any of them (dead on arrival in any court and cat-nip for the terrorists), or repealing and replacing Obamacare (without remotely specifying what the "replacement" will amount to), or denying global warming.  He claims he will create economic growth at the annual rate of 6%; the plan, however, is nothing but the re-jiggered tax cutting Republicans have been advocating and practicing for thirty years, and it has never done so.

Still, the Donald marches on.  And the question is . . .

Why?

Here's the answer.

First, he is at this moment swimming in the smallest of ponds, namely, the GOP primary electorate. Over the course of the last thirty years, that electorate has become (1) increasingly (and radically) right wing and (2) increasingly (and disturbingly) angry. Though some of Trump's one line policy positions are not shared by all of that group (e.g., ending the carried interest loophole for hedge funders), his crypto-fascist xenophobia either is (or is ignored as a needed "conversation starter"). And the insults are simply embraced and adored, which is basically what happens when anger becomes a substitute for reason.

Nevertheless, 35% of the GOP electorate is about 10-12% of the country, and 10-12% does not an ultimate victory make.

Lots of nuts have squirreled away similar slices of the American electorate over the years  (e.g., the Know Nothings in the 1850s, who wanted to stop Catholics from voting, increase the naturalization period from five to twenty-one years to stop immigrants from becoming citizens, and -- when all else failed -- actually kill Catholic voters on election days).

None of them, however, have wound up running the country. 

Second, his current competitors -- with the exception of Bush -- aren't attacking him correctly.  In fact, they can't.  They all want Trump's voters on the day the Donald loses.  So, the attack on Trump's temperament -- which in any normal year would be an immediate disqualifier -- is watered down. Instead of calling him a carnival barking, thin-skinned, dangerous clown who should get nowhere near the nuclear button,  he is treated as an entertaining showman (by Rubio), or as "inexperienced" (Christie's take on the Muslim ban), or as just "overreacting" (Fiorina on the ban).  The total cowards simply disagree politely (Cruz on the Muslim ban -- "that is not my policy"). 

You cannot,  however, beat a bully with an airbrush.

You have to knock him down.

Third, because his current competitors are treating him with kid gloves, Trump has been given a pass on his putative strength as a businessman and deal maker, all of which is at this point assumed by anyone watching the coverage.  The problem with that view, however, is that it is wrong.  Indeed, as Tim O'Brien recently wrote for Bloomberg, "a well-documented and widely reported trail of bad deals litters Trump's career as a real estate developer and gambling mogul." O'Brien continued: "Fueled by a slew of bank loans in the late 1980s, Trump absorbed an airline, a football team, a landmark hotel, a bunch of casinos, a yacht, and other nifty stuff -- almost all of which he lost because he couldn't juggle the debt payments."  

As importantly, on the only real-estate deal he tried to maintain over a period of years -- his plan to develop Manhattan's West Side Rail Yards into a $4.5 billion "Television City" that would combine residential and commercial space and provide a new home for NBC -- he was stiff-armed by NYC's then-Mayor Ed Koch and ultimately wound up with only collateral interests worth a fraction of his planned return on a project owned by foreigners.  His response to all of this -- typical of him even then -- was to insult Koch.  But Koch -- who could out-Trump Trump -- had the last word, telling reporters that the Donald was "squealing like a stuck pig" as his deal went south.

The lesson is clear.  If Trump deals as President the way he has dealt as a business tycoon, we are in trouble.  His deals are usually not that great.  When they go south, he creates the appearance of success by plastering his name on buildings and then jumping on the gold plated jet.  As the Texans say, he's all hat and no cattle.  This won't work in the White House.  All the people Trump is now insulting will be watching.  And watching the Donald botch the latest G-8 summit (he can't fire Merkel et. al.), or budget negotiations (he can't fire Congress), will become a cottage industry.

The other lesson inheres in exploring why Trump's deal-making has been so poor.  The underlying cause appears to be a lack of focus. According to reports, he is good for about a month on any one project and then gets bored.  This too, however, is a character trait pregnant with disaster.  Put simply, we do not need a President with the political equivalent of attention deficit disorder.

In his life, when the going has gotten tough and the deals have started to fizzle, Trump's default move -- packaged in an array of insults -- has been to bail.  Is that what we are looking at here?  

If so . . .

He may have a lot more in common with Sarah Palin than we ever suspected.

CHRISTMAS 2015-- TAKING ONE FOR THE COUNTRY

CHRISTMAS 2015-- TAKING ONE FOR THE COUNTRY

We are in the Christmas season.

The kids have been fine tuning their letters to Santa for months and by now have sent them off. Spouses are discreetly (or not so discreetly) signalling each other on what particular item under the Christmas tree might be more than favorably received.  Relatives are combing through their bank accounts to decide what distant cousins will be the recipients of seasonal largess. And even some of the bosses are figuring out the bonuses.

It is a time of giving . . . 

And receiving.

But, as my wife is wont to point out, usually starting in about September, you can't get what you want if you do not ask for what you want.  So,  I'm asking.

And what I want for Christmas is . . . 

The end of Donald Trump as a viable candidate for President.

This request raises three questions.  The first is whether Trump in fact is a viable candidate for President.  The second is how, if his candidacy is viable, it can be defeated.  And the third is who -- or what -- can actually make this happen.

For months I assumed that the answer to the first question was a resounding "No."  His hairness's penchant for the outrageous and unacceptable knows no bounds and surely would de-rail him.  As Tim Egan put it today in the New York Times, Trump has literally alienated every non-white, non-male group in this country, with the possible exception of non-hispanic Native Americans. "He started with 'the blacks,' through his smear campaign on the citizenship of the nation's first African-American president.  Moved on to Mexicans, war veterans, women who look less than flawless in middle age, the disabled, all Muslims and now people whose grandparents were rousted from their American homes and put in camps."

This last reference was to the Japanese-Americans whose now widely repudiated internment during World War II has been used by Trump to justify  his proposed plan to bar any non-citizen Muslims from entering the country.  As Egan concluded, with about 35% of their voters siding with The Donald, the "Republican Party is now home to millions of people who would throw out the Constitution, welcome a police state against Latinos and Muslims, and enforce a religious test for entry into a country built by people fleeing religious persecution. This stuff polls well in their party, even if the Bill of Rights does not."

Part of me thought that the sheer stupidity of these pronouncements would end Trump's campaign even if the racist, sexist, cypto-fascist and irredentist xenophobia of them did not.  There are about 1.8 billion Muslims in the world.  2.75 million of them live here in the United States.  Trump is proposing to bar all but American citizens from entering the country, or about 99.99% of them. Intelligence services here and in Europe estimate that, at best, less than 1% of the Muslims living within our respective borders are even "at risk for being radicalized," and that an infinitesimal percentage will actually become terrorists.  In fact, between 1980 and 2005, there were more terrorist acts -- 9/11 included -- undertaken by non-Muslims than Muslims.  What, therefore, we lawyers would call the "overbreadth" of Trump's plan is off the charts. At the same time, his proposed ban actually strengthens Islamic extremists, providing them with Exhibit A in their "the West hates all of us" campaign.

So, even if our fears started to overwhelm our values, if -- as often occurs in times of war and emergency (see the Japanese internment during World War II,  McCarthyism afterward, or the Red Scare in the 1920s) -- paranoia became a substitute for principle, I thought common sense might still prevail . . .

I thought, in other words, that Obama's audacity of hope would not be brought down by the audacity of a dope.

But that has not happened.  

In fact, as his "ban the Muslims" pronouncement proves, the opposite is the case.  Trump's share of the Republican primary electorate actually increased after he made his announcement, and even a sizable number of  those opposed to his plan commended him for "starting the conversation," whatever that means. (Memo to the conversants: The only appropriate end to the conversation is to say the proposed ban violates everything our country stands for.)

It is therefore beyond time to take seriously the possibility that Donald Trump may well be nominated for President by the Republican Party.  The Iowa caucuses and first-in-the-nation New Hampshire primary are less than two months away.  He is leading by large margins in both states and if he wins them, the race will move south where he is very strong among Republican primary votes. The notion that someone with a consistent 30-35% of the vote could run the table and win among a field of five to ten contenders is not at all far fetched.  In fact, it is the likely outcome. Similarly, the notion that Trump will arrive at the GOP convention in Cleveland next year with less than the required majority of delegates is (a) risky and (b) almost beside the point.  There hasn't been even a species of a brokered political convention in this country for more than eighty years and none since the advent of controlling primaries.  If Trump wins the lion's share of the primary vote, it will be almost impossible to deny him the nomination.

So there you have it.

As of today, the Republican Party's most likely nominee for President in 2016 is the racist, sexist, crypto-fascist xenophobe who stupidity apparently cannot stop.

Now, as a Democrat, there is a level at which I should welcome this result, Trump's  list of nefarious "isms" overcoming any lingering doubts about Hillary's emails . . . or her husband . . . or Benghazi. 

But I don't welcome it.

For two reasons.

First, politics is unpredictable and politics is the face of paranoia and fear even more so.  The actual terrorists --  all "thousands" of them -- would prefer a Trump presidency because it fulfills their worst prophesies about the west and makes more likely the Armageddon they foresee in the middle east.  If, between 2016's summer conventions and fall election, there is another San Bernadino or Paris style attack, paranoia could easily triumph in the form of a Trump presidency.

Which would be an unmitigated disaster.

Second, for all its current problems -- and, from their love affair with the economic austerity that forestalled a full recovery from the lesser Depression of 2008, to their penchant for international folly inherent in violating the nostrum of John Quincy Adams that America not go "abroad in search of monsters to destroy," there are many -- the GOP is  a great political party.   As the party of Lincoln, it ended slavery, America's original sin; as the party of Teddy Roosevelt, it championed a regulated capitalism that became the linchpin of progressivism; as the party of Reagan, it helped bring the Cold War to a successful conclusion.  Trump -- therefore --  is doing far more than destroying the GOP's brand.

He is destroying its soul.

And has to be stopped.  

And the only people who can do that are Republican elites.

Trump's viability very much depends on the size of the Republican Presidential field.   As noted, in a crowded field with five to ten candidates, his 30-35% share of the vote is enough to win.  That percentage fails, however, in a race against one, two or no more than a few others.  The majority of sane Republicans understands that Trump as president is a very dangerous prospect.  Dangerous for our standing in the world, and -- given his crypto-fascism -- dangerous to the experiment we call American democracy.  

But at this point there are only three ways to de-rail him.

First, we can sit back and hope the GOP's primary voters leave him in droves, which is unlikely.

Second, the establishment Republican candidates -- Bush, Kasich, Christie, Rubio,  Pataki, Gilmore, Graham,  and perhaps even Huckabee and Santorum -- could get together and choose one of their number to run going forward, all the others agreeing to drop out. This would shrink the field to that one candidate plus Trump, Carson, Fiorina and Cruz.  Carson and Fiorina would draw non-politician votes that would otherwise go to Trump; Cruz would eat into Trump's reactionary, nativist base; and the "establishment" candidate would win. This approach has to be manufactured by the candidates themselves because there is no likelihood given the current numbers that the primaries are going to do the winnowing job for them and certainly no guarantee that the winnowed field will be one from which Trump cannot win.

Third, barring a departure en masse in favor of one viable alternative to Trump, the identified group -- along with all other Republican elites, including the chairman of the GOP, the Speaker of the House, and the Senate Majority Leader -- could simply pledge not to support Trump if he is the party's eventual nominee. This would probably make Trump act on his threat to undertake a third party bid, thus more or less handing the presidency to Hillary.  But my bet is that, in a Hillary v. Trump contest, John McCain, Mitt Romney, John Kasich, and the Bush brothers (and father) are voting for Hillary anyway. . . 

Because it would be the right thing to do.

So, to my friends in the Republican Party . . .

Rid yourself of The Donald . . .

Take one for the country . . .

And Merry Christmas.

ON THE GREAT SACANDAGA LAKE

ON  THE GREAT SACANDAGA LAKE

So here I am, sitting on the porch at camp, looking through the leaves at the Great Sacandaga Lake, nestled on the southeast fringe of New York's Adirondack State Park.

And wondering how we went so wrong.

The Great Sacandaga Lake is a monument to big government.  So is the Adirondack State Park.  The Lake -- which is actually a man made reservoir -- was built through the '20s by a New York state-sponsored public benefit corporation and completed in 1930.  It was part of a flood control project that damned the Sacandaga River -- creating the reservoir -- in order to control the flow of the Mohawk and Hudson Rivers and dry out downstate communities that had hitherto been prone to flooding.  It cost $12 million, or anywhere from $149 million to $162 million in today's dollars.

For its part, the Park was entirely a product of governmental fiat.  In 1894, New York's state Constitution mandated that public lands "be forever kept as wild forest lands" and forbid those lands from being "leased, sold or exchanged" or "taken by any corporation, public or private." Because large swaths of the state had been de-forested throughout the 19th century, creating risks to water supplies and even imperiling the viability of  one of the state's main economic engines, the Erie Canal, the Constitution for good measure also prevented the sale, removal or destruction of any timber on public lands.  The result is that parts of the Adirondack still have old growth forests, some of the few remaining in the United States.

In 1902, the Legislature defined the Park's boundaries.  In 1912, it stipulated that the Park included privately held land within it.  From 1900 to 2000, the area of the Park more than doubled in size, and throughout that period, the state government heavily regulated development, private land use (50% of the park is privately owned), and density, and otherwise preserved the remaining wilderness area. These founding constitutional and legislative acts, along with a century of legal protection developed by New York's courts, then provided a model for the federal government's National Wilderness Act of 1964.

Great stuff.

Too bad we couldn't duplicate the feat today.

As any reader of these essays knows, I am a fan of the past, especially of the progress of the past.  I look back at the 1960s and see the progress made on civil rights, at the '50s  and the interstate highway system, at the '30s and the New Deal.  When I ran for Congress in 1992 and was campaigning on a commuter train running through my district just north of New York City, an inquiring and very skeptical voter asked me what good government had in fact done in this country.  I asked him where he wanted me to start -- with the Louisiana Purchase (which almost doubled the size of the country in 1803), the Morrill Act (which created land grant colleges in 1862), the Interstate Commerce Act (which began the process of regulating the railroads in 1887), the Federal Reserve Act (which created the central banking system in 1913, and allowed for the creation of the modern dollar and the federal money supply), the New Deal  (which created social security to end poverty among the aged, the National Labor Relations Act, to unionize and  generate some economic equality, and the GI Bill, to educate and thus create enormous bursts in productivity)?

Often when I recite this litany of government created progress, I am met with a "that was then, this is now" rejoinder.  One right winger literally tried to refute my argument by claiming the evidence was too old to matter.  "How come," he said, " you always have to go back to the '30s or '60s to find anything good?"

Uh . . .

Maybe because you guys have been either running the show or doing your best to stop my side from adding to the country's litany of progress since then.

Years ago, I wrote to E.J. Dionne, Jr. of the Washington Post after reading one of his columns.  I told him that, in my view, conservative Republicans run for election on the platform that government can do no good and then, once elected, try to prove it.  (Dionne later referenced the remark in a column, attributing it to "a reader.")  The result is that whole swaths of the contemporary American citizenry now think government is nothing but a waste of time and money, or -- in the words of the current GOP presidential front runner -- "totally clueless."  Meanwhile . . .

Our roads are a mess . . .

Our bridges are falling down . . .

Our globe is over-heating . . .

And the middle class is shrinking.

But no one on their side of the aisle wants to do anything to tackle these problems.  They won't pass the bill to fund the highway trust fund to fix the roads, raise the gasoline tax (when gas prices are lower than they have been in years) to re-build the bridges, pass cap and trade (a brainchild of their own designed as a market based alternative to command-based regulations) to combat global warming, or stop voting to repeal Obamacare (whose individual mandate was another one of their ideas they are now against).

The GOP is no longer a party in search of itself.  It's a party in search of some sort of affirmative mission.  It's not even the party of "No" anymore.  Instead, it's the party of "Who cares?"

Take a look at the current front runners in their sardine can of a Presidential field.  The three top candidates, who collectively are getting more than 50% in all the polls, are Donald Trump, Dr. Ben Carson and Carly Fiorina.  None of them has ever held a single elective office, and within the group, only one of them has ever run for something (Fiorina, who ran for the US Senate from California in 2010 and lost by ten points).  They are polling well among self-identified conservatives and Republicans because they are anti-politicians, two business people (Trump and Fiorina) and a surgeon (Carson) who can ostensibly run the country when they haven't so much as run a county.

The rejoinder from conservatives is that businessmen (or women) make better officials and that the good Doctor is smart enough to figure it out once he gets there.   This, however, is a claim long on rhetoric and short on proof.  The only businessman sans elective office who ever was President was Herbert Hoover and he led us through the Depression in 1929 - 1932 as a hard money Mellonite, which was exactly the wrong medicine for that catastrophe but exactly what all his businessmen friends were telling him would work. Even those businessmen Presidents with elective office backgrounds -- Carter and George W. Bush -- are not viewed as great success stories. The former seemed a good natured scold much of his time in office, and the latter became a vehicle through which right wing ideology brought us economic collapse and international folly.  

The problem with business folks in politics is that they are moving from an arena where people can be fired and the measures of progress (profit and loss) are indisputably clear to one where others (i.e., voters) call the shots on tenure and the measures of success are often qualitative (as in, for example, what policy leads to more fairness or justice or happiness) .  Business is about managing to an unambiguous bottom line.  Politics is about negotiating in the ambiguous environment of competing values.  (And though Doctor Carson, of course, cannot be subject to this critique, it does seem a bit off to assume that the Presidency's learning curve is easily climbed merely as a matter of surgical brilliance.  Put differently, I am happy to have Dr. Carson operate on me, but until I see more of what else he can do, I don't want him operating on the country.)

In truth, none of these three could warrant so much as a nod were it not for the swelling crescendo of anti-government hatred that has coursed through America's arteries for the last thirty years.  It is that hatred which is saving Trump from the consequences of his ego maniacal (and, frankly, adolescent) bullying, Fiorina from the incompetence of her tenure at Hewlett-Packard, and Carson from the fact that the Presidency is not a job that comes with training wheels. If they win, however, the party of "Who cares" -- with no new ideas, a host of old ones that have failed, and leading men (and one women) wholly unsuited for the high office they seek --  may well implode.

Because, here on the Great Sacandaga Lake, there is evidence that we once all cared . . .

And used government to channel public energy in the service of those cares . . .

And, in so doing, saved our wilderness, and our world, and our future . . .

And can do it again.