BIDEN AND BEYOND

This is an act of faith and an act of hope.

Faith in that fragile thing Alexis de Tocqueville called "Democracy in America".

And hope that a system structured more than two centuries ago for a different time and different place can rise to the occasion and self-correct in this time and this place.

On Tuesday, November 3, 2020, I will vote for Joe Biden for President.  I have voted in every election since 1976.  I mean all of them.  Off years, mid-terms, local, state and national.  

This, however, will be the most important vote I will ever cast.  

The Covid pandemic, which might have been avoided had the President read his intelligence briefings last December, and which certainly would have been significantly mitigated had an all hands on deck policy embracing masks, testing, quarantines and tracing been adopted early on, has killed over 230,000 Americans.  It has destroyed lives, families and whole communities.  Its economic consequences defy modeling.  The best picture of what is happening is not  a V, U or W.  It's a boomerang.  22.3 million jobs were lost by May.  9.3 million had been recovered by the end of September.  But a new Covid wave threatens to send us back to the future as we head toward winter.

Instead of combating the disease, President Trump politicized it.  Never before -- not with the 2009 swine flu pandemic or the 1918 flu epidemic or even AIDS -- has public health been turned into an overtly partisan issue.  

But Trump did it.

He couldn't help himself.  

He never can.

And it is killing more than those tragically falling to Covid.

It is killing American democracy.

It did not have to be this way.  After Trump surpised the world  -- and himself  --  by winning the Presidency, everyone was willing to give him a chance.  In spite of the lying, the "pussy grabbing", the obnoxiousness, the sheer lunacy of a mouth -- as often as not -- apparently disconnected from any functioning brain.  

In spite of it all.

In fact, in the aftermath of that surprise, Hillary Clinton gave voice to that willingness for all of us who had chosen her and rejected him.  The morning after the election she spoke to her own supporters. "We have seen that our nation is more deeply divided than we thought", she said, "But I still believe in America and always will.  And if you do, then we must accept this result and then look to the future.  Donald Trump is going to be our President.  We owe him an open mind and a chance to lead."   

Even then, the result was incongruous. Slivers of votes in the rural precincts of three rust belt states had sent the world and the country into a collective bout of "How the hell did that happen" and "What now?" The truth, however, was that Trump had hit a nerve.  The quarter-century, neo-liberal consensus that made economies global and elites rich contained one big flaw.  

Not everyone was being invited to the party.

And, like most who stand forever on the outside looking in, wondering why the cool kids do not want to hang with them, the outsiders were pissed.  They hadn't gotten a raise in thirty years.  Their jobs were being shipped overseas.  And they had nowhere to go.  For some, sorrow was bathed in addiction. For others, it was bathed in anger . . . 

At the PhDs who studied but never helped them.

The politicians who courted but never delivered for them.

And the elites who secretly despised them.

So they embraced Trump.

In truth, of course, Trump was one of the elites.  Indeed, one of the elitest of the elites -- private schools, inherited wealth, gold plated penthouses and trophy wives.  

But he didn't sound like an elite.  

He was ill-tempered and foul-mouthed.  He did not respect his political opponents.  He made fun of them.  He ranked them out.  He thought they were beneath contempt.  In truth, he thought they were all full of shit.

Which was pretty much what a lot of those white guys in Pennsylvania, Michigan and Wisconsin thought as well.

So they gave him a chance.

And Hillary told the rest of us to give him a chance as well.

So we did too.

And he has blown it.

Every day and in every way.

He has blown it for those of us who do not count neo-Nazis or white supremacists as among the "fine people";  who do not think our government should separate asylum seeking parents from their children;  who do not want their President bribing a foreign leader to orchestrate a phony investigation into a political opponent; who understand alliances and common cause are the only way to preserve the peace and meet global challenges like climate change; who know the Civil War ended 155 years ago and civil rights are long overdue; and who realize that  truth is not optional and lying is not a measure of authenticity.  

But he has also blown it for the very people who put him over the top.  

Despite promising, he did not re-build America’s infrastructure.  His tax breaks for the rich did not trickle down and transform Appalachia, which still does not have enough broadband, and his tariffs have not resurrected American manufacturing or ended trade deficits.  Though his always-promised but never delivered health care plan does not exist, he is still in the Supreme Court trying to get Obamacare declared illegal.  And he may succeed.  Despite the opposition of more than half the country, he and Mitch McConnell have packed the Supreme Court with conservatives.  The pandemic has created 9.1 million Covid survivors, and in Trump's world, they are walking pre-existing conditions that insurers will not have to cover.

I am a life-long Democrat.  I have run for Congress as a Democrat and even served for a time as a member of the New York State Democratic committee.  Trump's supporters like their man because he gets in the face of people like me.  

But instead of liking him because he kicks my ass, maybe they should stop letting him kick their own.

Joe Biden is not perfect.

But he may be perfect for this time. 

He knows that Covid does not have an address or a political party.  He knows that progress on economic inequality is a matter of policies that increase wages, cover costs and generate growth.  Instead of outrage or the Trump-like empty promise of a "big" plan "next week" or "just after the election", he offers small bore incrementalism -- a $15 minimum wage, a public option added to Obamacare that increases the number of insured, ending the ban that stops Medicare from negotiating prescription drug prices with pharmaceutical companies.  It may not be fancy.  But it will work.

Biden has always been ambitious. 

But he has never been an elitist.  

Or a phony.

He does not have to tell us he feels our pain.

Because too often in his own life he has experienced it. 

America is at a crossroads.  

If Trump is re-elected, it will almost certainly be without a popular vote majority and possibly because he and the GOP have suppressed the vote and succeeded in making sure that some of it is not even counted.  They have enlisted an army of lawyers who stand ready to march into close states in an effort to stop any post-election day counts of mailed-in ballots.  Different states count different votes at different times.  Some are counting the early vote now.  Some aren't.  Some count the election day vote first.  And because Republicans have cast fewer early or mail-in votes than Democrats, at least one of Trump's long-term operatives, Steve Bannon, has said the President plans to declare victory on election night when he may be leading.

If this comes to pass, Americans should hit the streets.

Every vote must be counted.

And no winner should be declared until every vote is counted.

If anything other than that happens, American democracy dies.

Don't let it.

ALL OF THAT -- SUPERPRECEDENTS, SUPERHEROES, AND THE SUPREMES

The Senate Judiciary committee is about to approve along party lines the nomination of Judge Amy Coney Barret to the Supreme Court.  Once sent to the full Senate, probably before the presidential election that is mere weeks away and in which voting throughout the nation has in many places already begun, it will again be approved along party lines.  She will then be immediately sworn in and become the 115th person to sit on the Supreme Court  

Barrett, currently a judge on the US Court of Appeals for the Seventh Circuit, is what is generally referred to as an originalist and strict constructionist.  This means she claims to interpret the Constitution and its amendments as written and construed by the framers and believes it is illegitimate for unelected justices to impose their own policy or jurisprudential preferences on that document.   

It is widely expected -- and with more than reasonable basis -- that Barrett will vote to overturn Roe v. Wade, the Court's 1973 decision legalizing abortion.  She has written that Roe is not a "super-precedent", which is how originalists protect decisions -- like Brown v. Board of Education ---which originalism would otherwise preclude but they do not want to disturb (because they know that, in doing so, they'd kill their movement).  She also clerked for Justice Antonin Scalia -- the dean of originalists who opposed Roe -- and is one of his more aggressive admirers.  

In 2006, she actually signed on to a two-page ad sponsored by a group calling itself the Right to Life of St. Joseph County. The ad was run on the anniversary date of the Roe decision.  It opposed "abortion on demand" and supported "the right to life from fertilization to the end of natural life."  And since becoming a judge on the Seventh Circuit in November 2017, she has joined dissents upholding laws banning abortion for minors absent parental notification, banning abortions if they are pursued for particular reasons, and requiring the burial and cremation of fetal remains.

If, as is likely, Barrett votes to overturn Roe, it cannot be saved.  Justices Breyer, Sotomayor and Kagan will preserve the precedent but everyone else now on the Court is on record -- one way or the other -- as opposing it. Chief Justice Roberts, an institutionalist worried about a politicized Court, may attempt some triage in the form of declining to hear cases where the issue might arise or deferring to lower courts where possible, but even these tactics will have limited utility. Because, with Barrett on the Court, it will have six dyed-in-the-wool conservatives and originalists.  

Under the Supreme Court's rules, only four are required to accept a case and five can stay a lower court order.  

So, even if Roberts wanted to hit the brakes, he will not be driving the train anymore.

What will be lost when Roe is killed?

In the overheated and tribal world of today's American politics, what is at stake with the destruction of Roe is generally missed.   This is because, though everyone knows the headline result of the case, almost no one outside the academy has read the decision and even fewer understand the basis for the right to privacy on which it rests.

That's too bad.

Right wingers would have us believe that Roe was conjured out of thin air.  For decades, states had made abortion illegal, and though these acts of legislative fiat never killed the practice (and actually wound up killing many women), neither had the practice killed the laws.  Then, in a grand act of illegitimate judicial hubris, the Supreme Court upended it all.

This is the story they tell and have told for forty-six years.

And it is a lie.

Here are some facts.  

In the late 1960s and early 1970s, when Roe was litigated and making its way to the Supreme Court, a number of states were repealing their anti-abortion laws.  In 1970, New York made abortion legal through the twenty-fourth week of pregnancy. By 1971, Alaska, Washington and Hawaii had decriminalized early term abortions.  By the same time, thirteen other states permitted abortion if the mental or physical health of the mother was at risk.  Even Ronald Reagan, a conservative stalwart, signed into law California's bill doing so in 1967.  The trend was decidedly in the direction of abandoning criminalization as a policy.

Critics, including the late Justice Ruth Bader Ginsburg, think Roe short-circuited this trend by removing the issue from the political branches across the country and resolving it immediately and for everyone.  And they may be right. Roe single-handedly created the Right to Life movement and turbocharged strict constructionism on the bench and in the academy.  The opinion itself was also long, and in surveying the history of abortion the world over, summarizing the opposing medical and ethical views, and then fashioning its three-trimester rule where the scope of the right changed over time, it struck many as more akin to a statute than a Supreme Court decision. 

But, apart from the politics and the presentation, was Roe wrong as a matter of Constitutional law?

The answer is no.

The most important passage in Justice Blackmun's opinion in Roe occurred seventy-six pages into it.  There, Blackmun noted that, though "[t]he Constitution does not explicitly mention any right of privacy", the document makes no sense without it.  

He didn't say it that way.

But I have.  

Because what he did say -- in noting the "zones of privacy" the Court had by then found to exist as  a consequence of the First Amendment (guaranteeing free speech or none at all), the Fourth and Fifth Amendments (protecting against unreasonable searches and seizures, self-incrimination, and deprivations of liberty without due process), the Ninth Amendment (reserving unenumerated rights to the People), and the Fourteenth Amendment (which, for decades, had been held to protect fundamental rights with respect to marriage, education and child-rearing) -- made it clear that the document as a whole collapses without it.  

Put differently, there are certain rights inherent in being an individual, rights that exist regardless of the state and therefore only carefully and narrowly subject to regulation by it.  Jefferson eloquently said these were the self-evident rights of life, liberty and the pursuit of happiness.  To that, the less eloquent among us have added the equally important right . . .

To be left alone. 

Especially north of the knees and south of the navel.

And this, unfortunately, is what the strict constructionists and Judge (soon to be Justice) Amy Coney Barrett do not get.  

They think they can jettison Roe and the world will go confidently on its way. But it won't. Because once you have decided that the Constitution does not contain the right to privacy set out in Justice Blackmun's decision, a host of other questions arise, none of which have acceptable answers.  For example, if there is no right to privacy, is Griswold v. Connecticut -- the case holding that states could not make illegal the purchase of birth control because it violated the right to "marital privacy" -- still good law?  How about Loving v. Virginia, the case that declared anti-miscegenation statutes unconstitutional?  Or Frontiero v. Richardson, the case that overturned gender-based housing allowances in the military as violative of both the equal protection and due process clauses? Or Lawrence v. Texas, the 2003 decision holding anti-sodomy statutes uncontitutional?  Or Obergefell, the case that only recently held statutes forbidding gay or lesbian marriage unconstitutional? 

As with Roe, the Constitution did not mention any of the rights upheld in those cases either. Nor did any of the framers -- either in 1787 when the Constitution and Bill of Rights were written or in 1868 when the Fourteenth Amendment was passed -- have any of these subjects in mind when they put pen to paper and created the foundational documents.

And it gets even worse.

Originalists like Judge Barrett take refuge in the notion of so-called "super precedents".  These are decisions from the Supreme Court ostensibly so accepted that they will never be overturned regardless of their unsteady moorings in the originalist version of what the Constitution requires or protects.  According to Judge (soon to be Justice) Barrett, the usual suspects for this protective shield are two opinions from the Marshall Court in the early 1800s -- Marbury v. Madison, which announced the principle of judicial review, and Martin v. Hunter's Lessee, allowing federal judicial review of state court judgments; Helvering v. Davis, upholding the Social Security Act; the Legal Tender Cases, which made government-issued paper money constitutional; Mapp v. Ohio, which made the Fourth Amendment's ban un unreasonable searches and seizures applicable to the states;  Brown v. Board of  Education, which held segregated schools unconstitutional; and the Civil Rights Cases, which held the Fourteenth Amendment applicable only to state action.  

None of this, however, is true.

There is no statute, legal principle or Supreme Court authority that in any way supports the view that there are any cases known as "superprecedents."  The term was invented by a couple of law professors in the 1970s and then promptly went into hibernation until 2005, when Sen. Specter tossed it to John Roberts as a sort of life line in the latter's confirmation hearings. Like other conservatives, Roberts fashions himself an originalist.  For him, Supreme Court justices are umpires calling balls and strikes, not players in the game.  They get to apply the Constitution as written and as understood when it was written.  Unfortunately for him, when the Fourteenth Amendment's equal protection and due process clauses were added to the Constitution, no one thought that either of them forbade segregation in public schools or in any other accommodations.  

Which created a problem.

For originalists.

Who knew their interpretive scheme would die if it killed Brown.

So conservative legal scholars invented the deus ex machina  of "superprecedents", a sort of jurisprudential  Batman and Robin that protects originalists from . . . 

Themselves.

Since then, others have jumped on the superprecedents train, Judge (soon to be Justice) Barrett among them.  

And her view exposed the whole notion for the canard it always was.  

Super precedents, she noted in a 2013 law review article, were "cases that no justice would overrule, even if she disagrees with the interpretive premise from which the precedent proceeds."  She then explained how an opinion became one: "The force of so-called superprecedents  . . . does not derive from any decision by the Court about the degree of deference they warrant . . . The force of these cases derives from the people, who have taken their validity off the Court's agenda. Litigants do not challenge them.  If they did, no inferior or state court would take them seriously, at least in the absence of indicia that the broad consensus supporting a precedent was crumbling.   When the status of a superprecedent is secure -- e.g., the constitutionality of paper money -- a lawsuit implicating its validity is unlikely to survive a motion to dismiss.  And without disagreement below, the issue is unlikely to make it onto the Court's agenda." 

This, however, creates more problems than it solves.  

If superprecedent status is simply a matter of public acceptance, what is the status of a Court decision before it reaches that point?  Brown was widely disparaged throughout the south when it was initially decided and school desegregation was not fully enforced there until well into the Nixon administration more than fifteen years later.  Could the decision have been overturned during that period but not thereafter?  Is the reverse true as well?  According to Barrett,  once a decision is not widely accepted, it becomes fair game.  

None of this justifies originalism.  Indeed, to the contrary, the whole notion makes a mockery of originalism's  interpretive commitment because it ties the legitimacy of the Court's opinions not to the Constitution's text or the meaning assigned to that text by its drafters but rather to the whims of public opinion.  

For years, conservatives complained that justices should not be acting like legislators. 

Now they are telling them to act like pollsters.

At her confirmation hearings this week, Judge Barret was careful in claiming that Roe is not a superprecedent.  Neither, apparently, are Griswold, Loving, Frontiero, Lawrence or Obergefell. But why not?  If you surveyed Americans today, you'd get super-majorities opposing any effort by legislators to ban condoms.  You'd probably get close to that if you suggested bans on interracial marriage, and even though gay rights and gay marriage as constitutional rights are relatively recent phenomena, significant majorities support them as well.  Ditto for opposition to gender-based discrimination on statutory benefits. Even with Roe, a solid majority of American do not want to ban abortion other than in cases where the mother’s life is endangered.  But once (not if) Roe is overturned, snap back and trigger laws throughout the country will make that the law of the land in almost half the states. 

At the hearings this week, Barrett appeared to depart slightly from the position taken in her 2013 article. In response to questions, she testified that "Roe is not a superprecedent because calls for its overruling have never ceased." Presumably, this saves Griswold and Loving. But not Roe or Lawrence  or  Obergefell.  Even though all of them are premised in whole or part on the right of privacy.

In truth, however, it saves nothing.

Privacy is not a whim.

It's a right.

There is nothing super about Constitutional protections that live or die on the basis of public acceptance.  The whole purpose of the Bill of Rights is to protect minorities from majorities and the whole point of judicial review is to enforce those rights even when majorities do not want to and even after "calls for . . . overruling" them have not ceased.  And in times, like these, of division and populist outrage, those protections become even more important. 

Public opinion is malleable. 

It can be ephemeral.  

And as has been proven in the wake of the election in 2016, it can also be dangerous.

We live in an era of populist outrage.  White grievance has metastasized, public health has been politicized, and even the lives of public officials have been jeopardized.  Originalism created none of that.  But if, as is likely, it takes hold of the Court, it could cripple an institution that might otherwise invoke -- to echo Lincoln -- the better angels of our nature. Now is not the time to embrace the fiction of superprecedents because we are unwilling to reject the farce of originalism.  

The Constitution was never set in stone.  It was written by lawyers steeped in common law.  They used words like "due process" and "equal protection", the meanings of which were not fixed then, had not been fixed before, and were not expected to be fixed in the future.  They expected judges to be jurists, to mine the inheritance of common law in an effort to divine principles that could guide an ever-changing world.  They did not expect them to be legislators, engaged in the rough and tumble of every day politics, with the trade-offs and compromises that entails and the squared circles it often creates.  But they also did not expect them to be pollsters or the tools of aggressive litigants.

They thought judges should be better than . . .

All of that.

So, Judge (soon to be Justice) Barrett, if you can . . .

Be better.

If you can't . . .

Be quiet.

 

YOU WERE THE BEST OF US

Two wrongs don't make a right.

Right?

Not quite.

Ruth Bader Ginsburg died this past Friday. In her twenty-seven years on the Supreme Court, forty years as a judge, and sixty years as a lawyer, this waif of a woman -- five feet tall and a mere hundred pounds -- was to the legal battle against discrimination based on sex or gender what Thurgood Marshall had been to the legal battle against discrimination based on race.

Namely, its giant.  

In the 1970s, initially as a law professor and then as the head of the ACLU's Womens Rights Project, she orchestrated a step-by-step approach that had the Supreme Court first  hold (in 1971 in Reed v. Reed) that the equal protection clause barred discrimination based on gender  and then begin to systematically apply that holding to reverse the sterotypical realities embedded in the world in which she had grown up and lived.  One by one, and at her careful urging, they fell -- sex-based discrimination in laws regulating military housing allowances, Social Security survivor benefits, state-regulated drinking ages, and rules on who could opt out of jury service or administer an estate.  

Her approach was as strategic as it was enlightened.  

A number of her clients, the "victims" of gender-based discrimination, were men.  

As were, at that time, all the Justices on the Supreme Court.

In 1980, President Carter appointed her to the federal Circuit Court of Appeals in Washington, DC. In her thirteen years there, she developed a reputation as a measured and cautious jurist. She sought consensus. Colleagues with whom she disagreed were not thought of as  opponents or enemies. To the contrary, she befriended two of the most conservative among them, Robert Bork and Antonin Scalia, and became a lifelong friend of the latter.  

Their families regularly celebrated New Years Eve together. 

And Scalia for his part was smitten.

At a lunch with his own law clerks in the early '90s, he was kiddingly given a conservative's Hobson's choice -- "If you had to spend the rest of your life on a desert island with Harvard Law Professor Laurence Tribe or New York Governor Mario Cuomo," the clerks asked, " which would you choose?"

His reply: "Ruth Bader Ginsburg".  

Professor Steven Calabresi, who clerked for Bork on the DC Circuit Court while she was there, called her "a common law constitutionalist. She thinks the Court should not go too far in any given case."

He was right.  

In a much-reported speech at NYU while an appellate judge, she criticized the Supreme Court's decision in Roe v. Wade, arguing that it was "overly broad" and had "prolonged divisiveness" by "halt[ing] a political process that was moving in a reform direction".  In her view, the Court should have limited itself to holding the Texas statute (which banned abortions in all cases except to save the life of the mother) unconstitutional.  States would then have had to determine whether other regulations  were appropriate, and those that passed would have been challenged in court. She thought incremental evaluation and progress was preferable to Justice Blackman's all at once approach, that it would have allowed the rest of the country to catch up and stopped the Court from getting too far ahead of the public. 

She also thought it would have short-circuited the right to life movement and the rise of judicial fundamentalism.

Was she right?

We'll never know 

The Roe-inspired rise of the evangelical right suggests she was.  The fact, however, that state-based reforms were then being vigorously attacked in all the legislatures where they were moving forward (by, among others,the Catholic hierarchy) suggests she wasn't.   

In 1993, President Clinton nominated her to the Supreme Court.  Because of her reputation as a moderate and her expressed skepticism on Roe, liberals were nervous and conservatives silent.  The Senate confirmed her by a vote of 96-3.  No nomination since has beaten that number.  In her twenty-seven years on the Court, she successfully fought back efforts to curtail abortion rights to the point of non-existence, though the effort was far more successful in the earlier years (when Sandra Day O'Connor, John Paul Stevens, David Souter and Anthony Kennedy were on the Court with her) and today hangs by the merest of threads.  

Meanwhile, she continued to erase the plague of sex discrimination, open the doors to equal justice and equal rights, and preserve Congress’s ability to solve national problems. In her most celebrated early decision, United States v. Virginia, she wrote the 7-1 majority opinion striking down the Virginia Military Institute's males-only admissions policy. The only vote against it was Scalia's, who said the ruling would kill VMI.  It didn't.  In Obergefell v. Hodges, she was part of the Court majority that declared gay marriage a constitutional right.  Fundamentalists predicted that this would kill traditional marriage.  

But it didn't either.  

In Ledbetter v. Goodyear Tire & Rubber Co., her most celebrated later dissent, she upbraided the brethren for running the clock on a claim of wage discrimination where the victim, Lily Ledbetter, was not and could not have even been aware that she had a claim. Her dissent was so persuasive that Congress later amended the statute to cure the Court's ridiculous determination.  And on the Affordable Care Act and voting rights, she was stalwart in rejecting the right wing notion that Congress lacked the authority to legislate (health care) or that the problem had been solved (voting rights). 

After its 1992 decision in Planned Parenthood v. Casey, Supreme Court  jurisprudence on abortion shifted away from Roe's focus on privacy and toward Casey's concern that any regulations not impose an "undue burden" on women.  

The doctrinal  shift was tailor made for Justice Ginsburg.  

As a litigator, she had fought against gender discrimination on the grounds that stereotypical distinctions based on sex violated the equal protection clause. In her later years on the Court, often in dissent, she embraced a version of that same analysis in refusing to approve increasingly burdensome regulations on the legal right to an abortion. In Gonzalez v. Carhart, which upheld a state ban on partial birth abortion that did not include a health exception, she wrote in dissent that "legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course and thus enjoy equal citizenship stature."  She also explained that "the absence of a health exception burdens all women for whom it is relevant" and "the reasoned medical judgments of highly trained doctors" ought not be rejected as "'preferences' motivated by 'mere convenience'".

For Ruth Bader Ginsburg, the issue in the final analysis was who decides.

And with her passing, that issue will assume center stage once again and be debated at multiple levels.  

Here are at least two.

First, and on abortion, the fundamental issue will be, as it has always been, who gets to decide when life begins. Or, put differently, who gets to decide when a person is . . .

A person.

The Roman Catholic hierarchy thinks it gets to decide, as do Biblical fundamentalists within various other sects.  According to them, life begins -- a person exists -- at conception.  

In other words, embryos are people.  

This, however, is not a position notable Church fathers like St. Augustine or St. Thomas Acquinas advocated or accepted.  To the contrary, they thought ensoulment or personhood was organic and developed over time.  Conception was not some sort of magic moment.  But today, this view is among the Catholic Church's best kept secrets. The hierarchy assiduously ignores it and instead claims to have opposed abortion for two millenia.  The problem, however, is that the Church's reason for that opposition has changed dramatically over time.  Early on, it opposed abortion because it viewed the act as a form of birth control, not because it thought the act tantamount to murder or infanticide.  Only later, and only after losing civil political power in Italy and claiming it had to be the determinative moral arbiter for the world's 1.2 billions of Catholics, did it turn -- contra Sts. Augustine and Thomas -- embryos into people.

For their part, American conservatives think state legislators get to decide.  In their minds, if an unelected Supreme Court refuses to respect the wishes of any state legislature on this question, that Court usurps the will of the majority reflected in the votes of its duly elected state representatives. The Court then becomes illegitimate, a counter-majoritarian pariah. The problem with this claim, however, is that the Court in Roe and Casey did not counter or usurp any national majority. In fact, to the contrary, those decisions pretty much reflect the national consensus on abortion. What they do not reflect is the opposition to abortion in states whose local majorities constitute a distinct national minority.

Second, in view of the fact that we are now a mere forty-four days from a presidential election, there is the overriding question of who gets to decide Justice Ginsburg's replacement.

In a normal America, the answer would be self-evident. Under the Constitution, the President gets to nominate a new Justice to fill any vacancy and the Senate gets to advise and consent.   This, however, is not how things work in Mitch McConnell's world.  In his world, Presidents do not get to fill vacancies on the Supreme Court in election years.  Instead, only the next President gets to do so.  No one actually thought this was the rule until February 2016, when Justice Scalia died and McConnell made it clear that his party was not even going to hold a hearing -- let alone allow a vote -- on President Obama's then nominee to replace him, Judge Merrick Garland.

But here we are.

My own view is that McConnell was wrong in 2016, that denying Trump the right to nominate Justice Ginsburg's successor might arguably be wrong in 2020, and that generally speaking two wrongs do not make a right.  

Except when they do.

As they do . . .  

Right now.

To begin, McConnell's rule was always a fiction.  When Scalia died, Obama's term was a little short of a year from being over and the election was ten months away.  It was more than possible to do the customary investigations and hearings that now accompany appointments to the Supreme Court.  It was also not accurate to say (though McConnell and his seconds did) that Justices had not been nominated or confirmed in election years in the so-called modern era.  Supreme Court vacancies were filled in 1916, 1932, 1956 and 1986, all election years.  

So, McConnell was wrong.

More or less categorically (though one could argue that nominations and confirmations in the weeks before an election were more or less non-existent; in fact, in the country's entire history, those have occurred only twice).

Unfortunately, his wrong was not without consequences, both short and long term.

In the short term, McConnell's perversion of history has allowed Donald Trump to fill two vacancies to date and has shifted the balance of power on the Supreme Court.  The addition of a third Trump-appointed conservative will change that institution for decades.  

Trump never should have been put in the position where that was possible. And had McConnell not invented his no-Supreme Court-appointments-in-an-election-year canard, he would not have been.  Garland would have been on the Court when Trump assumed the Presidency and Trump to date only would have been able to fill the single seat vacated when Justice Kennedy later retired.  

But he has picked two, not one, and now wants to fill the Ginsburg seat.

If it can be, that has to be stopped.  

If it can't be, and Trump loses in November, the Democrats have to pass structural reforms that re-set the balance on the Supreme Court.  To date, many such reforms have been proposed and can later be considered.  What the Democrats cannot accept is business as usual.  

McConnell never has.

Nor has Trump.

I'm not worried about my own hypocrisy, or squaring any ethical circles, or engaging in silly debates over whether I actually understand the so-called McConnell rule.  Though Mitch is now (conveniently) saying his rule is not applicable today because it only applies when different parties control the Senate and the Presidency, that is not what he said in 2016.  

Nor am I interested in debating his claim that, since the 1880s, no Supreme Court nominee has ever been confirmed in an election year in which the Senate and the Presidency were controlled by different parties. True or not, the number of times this was even possible is not a remotely large enough sample from which anyone -- let alone a power hungry partisan like McConnell --  should be permitted to deduce or infer a rule. 

In the longer term, McConnell's pas de deux with invented rules and hypocritical reversals is killing the Senate, an institution already on life support.  Savvy critics of anti-democratic or counter-majoritarian threats understand that the Senate is one par excellence. The 53 Republicans who today control that body do not come from states even close to representing majority opinion in the nation as a whole, and the positions they advocate on health care, voting rights, gay rights, abortion, taxes, and judicial appointments are not shared by any national majority.

Sooner or later --  and my bet is sooner rather than later -- America will get sick and tired of minority rule, whether it comes clothed in Presidents who continually lose the popular vote  or in Congresses hamstrung by Senates that over-represent small states.  Trump and McConnell could have healed the wounds these structural possibilities cause by governing from the center, and Trump himself could have done so by checking his insults, ad hominems  and anger  at the door.

Neither has.

In many respects, they represent the worst of us.

So, RIP Ruth Bader Ginsburg.

In a life where brilliance was your alter ego but discrimination your companion, where a law school dean wondered why you were there and judges and law firms would not give you a job, you found and married one of the few guys who was different . . . 

And then made your country different as well.

You were the best of us.

ONE BOY THAT SUMMER

Dear God,

This is a thank you note.

Long delayed in one case but pretty current in another.

As You know, Tom Seaver died last week.

For twenty years, from 1967 to 1986, Seaver  mesmerized baseball fans, winning 311 games, striking out 3,640 batters, compiling a career earned run average of 2.86 and pitching a now unheard of 231 complete games.  He won the Cy Young award three times (1969, 1973 and 1975), struck out 200 or more batters in a single season nine times, threw more than 200 innings (also unheard of today) in sixteen seasons, and was a near-unanimous choice to the Hall of Fame in his first year of eligibility, winning a then-record 98.84% of the votes.

In 1970, in a game tying the major league record for 19 strikeouts, he fanned the last ten batters in a row.

No starting pitcher could do that today either, mostly because they never last beyond the seventh inning.

You probably don't need me to tell You all this, You being God and all.  But on the off chance that  baseball is not Your most important concern -- it is, after all, a game -- I'll continue.

In 1969, Seaver led the New York Mets to their first world championship.  There has been one since, in 1986,  and three other losing appearances (in 1973, 2000 and 2015).  Two of those five trips to the World Series were improbable.  In 1973, the team was in last place on August 30 with a losing record but snuck into the playoffs a month later two games over .500, four teams barely behind them, none of them having particularly acted like they wanted to win.   And in 2000, they made it to the playoffs as a wild card team, which is our way of turning second place into total victory (but, in truth, was probably created to generate more advertising revenue for the teams).

In any case, then there was 1969  . . .

Which was impossible.

Some even called it a miracle.  (Please advise.)

The team, true to form, lost on opening day that year.

To an expansion team, the Montreal Expos.

God, just think about that for a minute.  The baseball gods -- these are the folks who don't have as much power as You but sometimes think they do and act that way -- had decided to spread pixie dust on the hapless Mets, literal bottom dwellers in the first seven seasons of their brief existence, by scheduling them on opening day against a team that was even worse, a team that would go 52-110 that season and finish 48 games out of first place.

But the Mets lost anyway.

The bullpen gave up four runs in the eighth inning.

And things did not get much better thereafter.

They were 3-7 ten days into the season . On June 1 they were in third place in their six team division but still had a losing record.  On July 1 they were in second six games above .500, an extraordinary improvement given their sorry history but still eight games behind the first place Cubs.  And by August 14 they had slipped to ten games behind.

Then they did nothing but win.

Which is more or less when people think You may have gotten involved.

They went 38-9 the rest of the season to finish first in their division, swept Hank Aaron's Atlanta Braves in a best of five playoff for the NL pennant, and then beat the Baltimore Orioles four games to one to take the World Series. Hank Aaron is baseball's all-time home run king. (Or was until Barry Bonds beat his record.  But Bonds was cheating so lots of us think Hammerin' Hank is still the guy on home runs.) And the Baltimore Orioles, who went 109-53 that year, were so good that, at the start of the World Series, no one down here gave the Mets any chance at all.

Seaver was stellar. 

25-9 during the regular season, he won the first playoff game and pitched a masterful 10 innings to win the fourth and pivotal game of the World Series. The next day, with Jerry Koosman pitching, the Mets won the whole shebang.

When the last out came, Seaver was the first player from the dugout to jump on Koosman. Tons of other folks ran onto the field to celebrate.  In a sort of non-Biblical rapture, children ran happily screaming through schools.  Sadly, some people in Baltimore were heard taking Your name in vain. You, however, might want to forgive them. This was the second time in a year that a supposedly superior team from Baltimore had been beaten by a weaker one from New York, given that the Colts had lost to Joe Namath's football  Jets in the Super Bowl that January, and people from Maryland probably thought You were just being unfair to let that happen again.

(Sorry for the sidebar. I don’t need to tell You who to forgive.)

Anyway, and as You also know, I was born in 1956 and grew up in Brooklyn, NY.  I was named after my maternal grandfather, who I called "Poppa" and loved beyond words (he's with You now so please say "Hello" for me).  Poppa, also born and raised in Brooklyn, had been a lifelong Brooklyn Dodger fan.  But when the Dodgers left Brooklyn for Los Angeles in 1958, he -- like most Dodger fans in Brooklyn -- became a baseball widow.  He hated the Yankees and Walter O'Malley, the owner who took the Dodgers west.  It was thus not remotely possible for him to root for the Los Angeles Dodgers or switch his allegiance to the baseball team that remained in New York.

So, truly, Poppa was in mourning.

To say that a part of Brooklyn died when the Dodgers left is not an overstatement. The team was the borough's identity.  The summer sound track in Brooklyn in the 1950s was of kids playing and Dodger games on the radio. You could literally walk down the streets following the play by play from open windows, or so I was told.  For the most part, the players themselves lived in its neighborhoods, certainly during the season. And with Jackie Robinson, the team had literally changed America.

All men may not have been created equal in the segregated south (or even the red-lined north).

But they sure as hell were at Ebbets Field.

(Apologies for the "hell" in that last sentence, but there really is no other way to make the point.)

And then,  in 1958,  they left.  

And  a giant hole was left to fill.

Until 1962, when the Mets filled it.

Poppa's love of baseball was resurrected that year.  I think it was, as we say down here, an Act of Yours.  At the very least it was mystical and somewhat  inexplicable.  New York had a new team.  And the new team even had two old Dodgers, first baseman Gil Hodges (who would retire in 1963 and begin managing the Washington Senators) and third baseman Don Zimmer.  The new team was in the National League and it wasn't the Yankees.

So Poppa rooted for them. 

Even though they stunk.

And I loved him.

So I rooted for them too.

Even though they stunk.

It wasn't easy.  In 1964 or so, years before Seaver arrived and  Gil Hodges returned, and long before the "miracle" of  '69, my parents decided to give me a baseball uniform as a birthday present.  What did I want, they asked, Yankees or Mets?  Mets, of course, I said, never wanting to be caught dead in a Yankees outfit in front of my grandfather.  Then I went outside in it . . .

And was laughed at by the best baseball player on the block.

A Yankee lover as it turned out.

In Brooklyn, no less.

Who woulda thunk that?

By September of 1969, however, no one was laughing at the Mets.  Armed with a pitching staff -- Seaver and Koosman chief among them --  that stifled opponents, their manager, Hodges (who had returned in 1968),  adroitly platooned lefties against righties (and vice versa)  at first base , second, third and in right field, suffered neither fools nor the lazy gladly, and made them winners.  They were in truth a schizophrenic team.  The same guys were rarely in the line-up three days in a row.  I don't know if You see this sort of teamwork among humans in general (probably not these days, at least here in the US), but on the '69 Mets it was magical.  Ron Swoboda and Art Shamsky, for example, who were platooned in right field, each had about 300 at bats that year and each drove in about fifty runs.  Roughly the  same was true of Donn Clendenon and Ed Kranepool, who were platooned at first base. And Ed Charles and Wayne Garret, platooned at third.

Gil Hodges was what a famous author down here, Roger Kahn, called one of the "Boys of Summer". They were all those beloved Dodger players in the late 1940s and 1950s -- Robinson, Pee Wee Reese, Duke Snider, Carl Erskine, Roy Campanella, Clem Labine, Don Newcombe, Billy Cox.  Hodges, however, was especially beloved.  He was known as the "one who stayed".  That was because, as You know, he married a girl from Brooklyn, bought a home and raised his famiy there.  He was also a regular at Our Lady Help of Christians, the Catholic parish in which his family lived. 

All of his kids went to the parish school.

Me too.

One of them, Cynthia, was in my class and once gave me a signed picture of her Dad. 

So I always thought she was pretty cool.

As Tom Seaver will be the first to tell You, Gil Hodges made the Mets.  He was a total professional.  And a no-nonsense guy.  When the team's star left fielder, Cleon Jones, didn't hustle on  a ball hit to him during a game, Hodges walked all the way out to left field and pulled him from the game.  In baseball, just so You know, not hustling is a cardinal sin; it can cause all sorts of problems if it becomes a habit. Needless to say, Cleon never lacked for hustle again.  Hodges was also a great teacher.  He knew what he wanted players to do but had a way of getting them to do it on their own.  

(Part of that may have been owing to the fact that players were a little scared of him; at least that's what one of my friends was told years later by Art Shamsky.  You should ask. Also, and as a relevant aside, really a plea, Hodges should be in the Hall of Fame and the people down here who decide those things obviously need some help on that score. Twenty-five guys are in there who over time received fewer votes than he. In the 1950s, he led all major league first basemen in hits, home runs, RBIs, total bases and extra-base hits. He was an All-Star eight times (also more than any other first baseman).  And then, following seven seasons in which they finished either last or second to last,  he turned the Mets into World Champs, the only pre-free agency expansion team ever to do so.  Could You help here, please?)

Returning to 1969 . . .

It’s hard to put into words how special that summer was for kids like me.    But here's a little vignette that may help.

The World Series in those days was played during the day.  And the deciding  fifth game started in the afternoon of  a school day.  At Our Lady Help of Christians that morning, Sister Louise Claudia told our class that "Cynthia was out sick" and then chuckled.  Everyone knew Cynthia was at Shea Stadium with the rest of her family watching her Dad help make history.  Meanwhile, the nuns decided to make a little history of their own.  As the game started, they stopped class, rolled the educational TVs into the classrooms, and turned it on.  

As You know better than anyone, Catholic nuns in the mid-20th century were serious about school. They ran the places with iron fists, some of which my classmates experienced from time to time.  In my eight years in Our Lady Help of Christians, the only other time I recall classes stopping was on June 5,1968, when we all were marched over to church to pray for Bobby Kennedy.  This was different.  This time, the nuns were stopping school for . . .

A baseball game.

But maybe they knew something we didn't . . .  

Or You do.

One of my friends is John Sexton.  He is a former president of New York University, a former dean of that university's law school, and a former high school teacher who I met in 1973 at a high school summer debate institute at Georgetown University.  For years, he has taught a seminar at NYU called Baseball as a Road to God,  and in 2013 he turned that into a book with the same title.  In it, he makes the point that baseball, like You, is often "ineffable".  The ineffable, he writes,  is a window on the "sacred", on You, a "mystery, both fearful and fascinating", and is "experienced, not defined, revealing itself in moments of intense feeling."  The setting can be "a house of worship or a mountaintop or a ballpark."

For him, the ineffable was "eff-ed" on October 5, 1955, when Gil Hodges caught the last out and the Brooklyn Dodgers won their only World Series (against the Yankees), overcoming a decade of ultimate loss with their one and only ultimate win.

For me, it was "eff-ed" on October 16, 1969, when the Mets overcame seven years of loss and I, along with my classmates, slid down the bannisters at Cynthia's school, yelling ecstatically alongside our teachers, the equally ecstatic nuns.

From the school, I ran to Poppa's house.  

In the years that followed, the Mets muddled along, occasionally great, often frustrating. They won again but I don't think they were ever as miraculous or ineffable again. In 1989, another former university president and baseball lover, Yale's Bart Giamatti, wrote a book called Take Time For Paradise.  In it, he said "I believe we have played games, and watched games, to imitate the gods, to become godlike in our worship of each other and, through those moments of transmutation, to know for an instant what the gods know."

So thank you.

For Tom Seaver.

For Gil Hodges.

And for the '69 Miracle Mets.

Sincerely,

One Boy That Summer.

STOKING VIOLENCE

So, it has come to this.

Monumentally inept in confronting the coronavirus crisis, impeached for trying to bribe a foreign government, commuting the prison sentence of the felon who might have sunk him, confirmed as Russia's colluder-in-chief by a bi-partisan Senate panel, trailing in every poll taken for most of this year, illegally staging the Republican National Convention at the White House, obtaining no bounce from that week-long lie-fest in any case, narcissistically programmed  to care only and always for himself, and able to look evil in the eye and welcome it so long as evil returns the favor . . .

Donald Trump has now settled on the only means left to create a possibility of re-election.

He has decided to stoke violence.

As anyone with a functioning news feed knows, Portland, Oregon has been in the headlines for the past three months.  After the killing of George Floyd by Minneapolis police last May, protesters took to the streets of Portland as they did almost everywhere else.  For the most part, and as was also the case everywhere else, those protests were peaceful.   Less than two months in, however,  the federal Department of Homeland Security (DHS) deployed irregularly uniformed officers to the city.  There were no names on their brown cammo fatigues and no insignia designating their federal department or service.  They were armed with Trump's egotistical weapon of choice, the over-sized, sharpie-signed Executive Order suitable for framing, and were told to protect Portland's federal courthouse from ostensibly violent anarchists.  

The federal force was neither invited by the state and local authorities nor needed in view of the actual threat.  Indeed, inasmuch as what Trump, Acting DHS Secretary Chad Wolf and Attorney General William Barr called "anarchy" was principally vandalism in the form of spray-painted graffiti on the courthouse's walls, the threat was de minimis.  Comprised of some customs and border patrol agents along with personnel from the US Marshalls Service, the force also wasn't trained in crowd control or in policing would-be riots.  Their  presence  predictably resulted in larger protests but instead of de-esclating tension, which is more or less Policing 101 when faced with hostile or emotional crowds, Trump's troops exacerbated it.  

Protesters were arrested without probable cause and then ferried away in unmarked vans to makeshift holding facilities.  

When the famous "Wall of Moms" stood between  federal officers and the protesters, the mothers were tear gassed.  

When a Navy veteran approached just to talk, the feds beat him.  

And when one protester merely stood  up . . .

They shot him.

Eventually, Trump's ersatz cops had to leave. The sideshow of their presence hadn't goosed the President's numbers (which was really all he wanted in any case), and Oregon Gov. Brown had state police guard the federal courthouse and shoo away the graffiti artists. Though DHS denied it was leaving, it stood down nonetheless.  Though the protests continued, their size shrank and none were violent.

Then came Kenosha.

There's a -- and now, it seems, almost inevitably -- "bad dream" quality to the events in Kenosha this past week and a half.  I do not know what happened as the police shot Jacob Blake seven times in the back on August 24. All I have seen is the video taken by an on-looker.  In it, Blake is running around a car and moving into the open passenger-side back door toward the rear seats.  One of the cops is grabbing his shirt, holding it tightly enough so that it rises off Blake's lower back.  None of us -- the great unwashed and uninformed -- knows what, if anything, Blake is saying, why he is doing what he is doing, or what the police are telling him, and investigators are saying nothing other than "be patient". His family attorney  has issued  a statement, and in it he asserts that Blake was de-escalating a domestic disturbance, was tasered by police, and was circling the car to check on his children when he was shot.  

Their view is that the shooter should be arrested.

But  even if that is not the whole story . . .

Can we do a reality check here?

Blake was surrounded by police, one of whom had his hands on him.

Did they have to shoot him seven times in the back?  Were they in imminent danger? 

Lots of folks who afterward took to the steets -- yet again --  think not.

And that is not unreasonable.

What happened in Kenosha thereafter, however, most assuredly is.  

Police vehicles were vandalized.  The windows of Kenosha's  public library were smashed.  Dump trucks were set on fire and Wisconsin's Governor had to call out the National Guard.  When the city's Mayor tried to hold a press conference with community leaders outside the city's Public Safety Building, he couldn't.  When he tried to get back inside, protesters blocked the door.  A cufew was imposed but looters burned stores even as Blake's family called for peace.  And then, in the middle of it all, 17 year-old Kyle Rittenhouse drove from Illinois with his AR-15 assault rifle, joined other armed individuals and self-appointed militia in the streets of Kenosha, and killed two people while  injuring a third. Afterward, he walked by police, hands high and assault rifle akimbo.  Though it is illegal for a minor to openly carry a firearm in  Wisconsin, he was not arrested.

Rittenhouse claims he went to Kenosha to protect property and help any who were injured.  He arrived with a friend (who was also armed).  On the night of their arrival, they stood outside a mechanic shop that he claimed had called for help. "Our job," he explained, "is to protect this business". That, of course, isn't his job at all. His lawyer claims Rittenhouse opened fire in self defense after being accosted by "multiple rioters".  The criminal complaint filed once Rittenhouse actually was arrested back in Illinois the next day says he opened fire after a plastic bag was thrown at him.  He has been charged with homicide.

Four days later, back in Portland, there was another killing.  This time, as a caravan of armed Trump supporters rolled through the city confronting BLM protesters,  one of those supporters was shot and killed.  The shooter has not yet been identified or arrested.

A normal President faced with all these tragedies would call for calm, implore people to leave their guns -- as well as any armed adolescents -- under lock and key at home, let the police protect whatever and whoever needs protecting, and deplore violence in whatever political garb it comes clothed.

Trump, however, is not normal.

In the past two weeks,  he has (falsely) accused the "radical left" of being responsible for the on-going protests in Portland and those in Kenosha, and regularly exaggerrates (to the point of caricature) the extent of violence in the nationwide BLM protests as a whole.  He has praised uninvited militia and the armed Trump supporters who have shown up in both towns ostensibly to protect property and restore order, neither of which they accomplish or are in any way good at.  He defended Kyle Rittenhouse, claiming -- with no evidence whatsoever -- that the teen acted in self-defense, and during last week's RNC, his now former counselor, Kellyanne Conway, made his real views explicit. "The more chaos and anarchy and vandalism and violence reigns," said Conway, "the better it is for the very clear choice on who's best on public safety and law and order."

So, reduced to a bumper sticker, Trump's campaign  is simple -- "If the streets burn, Trump wins."

Yesterday, Joe Biden went to Pittsburgh to speak in a converted steel mill.

He condemned violence: "Rioting is not protesting," said Biden.  "Looting is not protesting.  Setting fires is not protesting.  It's lawlessness, plain and simple. And those who do it should be prosecuted. Violence will not bring change.  It will only bring destruction.  It's wrong in every way."

He condemned Trump:  "The president long ago forfeited any moral leadership in this country.  He can't stop the violence because for years he has fomented it."

And then he made clear the difference between the two:  "I look at violence and and I see lives and communities and the dreams of small businesses being destroyed . . . Donald Trump looks at violence and sees a political lifeline."

At this point, roughly 60 days before the election, the choice is pretty simple.

There's Joe Biden,  the man who would be President.

And then there's Donald Trump, the man-child . . .

Who can't act like one.

NEW DEAL MEETS NEW REAL

It's the middle of August 2020.

And we're in the dog days of summer.

Probably the "doggiest" summer in years.

Many of us are unemployed.

All of us are stressed and tired . . .

And clearly challenged.

Boy are we challenged.

A world-wide pandemic has resulted in over 5.3 million cases here in the United States and 165,000 deaths.  Worldwide, there have been over 21 million cases and over 759,000 have died.  Though our population of 330 million is about 4.3% of the world's inhabitants, 25% of its coronavirous infections have found their way to our shores, as have more than 20% of its related deaths.

Over the pandemic's course, Presidential leadership has for the most part been absent and in many instances inept.  Early intelligence was ignored when following it could have been determinative.  Expertise was sidelined when embracing it would have saved lives.  The amount of denial -- it'll all go away "miraculously" -- and delusion --  ingesting bleach, for example -- and sheer idiocy -- wear  a mask, it's not a political statement -- has been breathtaking. 

Fifty governors, most of them now broke, have tried to put together effective responses. Their approaches have varied, as has their effectiveness.  The stars of the show -- Governors in the northeast and northwest -- quarantined earlier than many others, were guided by science, and were disciplined in phasing in re-openings.  That is the reason New York, once America's coronovirous capital and still the jurisdiction with the highest number of total  infections and deaths in the young life of this disease, reduced its daily new cases from a high of 6,377 on April 6 to 69 just a few days ago.  The state's rate of positive test results has also declined, from a high  of 70% of those tested in April to below 1.4% now.

The current unemployment rate, all due to the pandemic, is 10.2%. Though the springtime CARES Act put needed money in the hands of small business, the unemployed and state governments, and thus prevented an incipient depression, that aid has now ended or run out.  Senate Republicans, meanwhile, refuse to pass a new bill.  About twenty GOP Senators are opposed to appropriating any additional money at all, and the rest are insistent that any supplemental not exceed $1 trillion, which is about a third of what the Democrats initially proposed and only half of where they agreed to go to as a compromise.  

As is typical of much of the GOP, their stinginess is heralded as concern over the ballooning deficit, a concern never expressed -- indeed, assiduously ignored  -- whenever they propose tax cuts for their rich friends and donors.  Not to be outdone, Trump entered the fray last weekend, signing an Executive Order ostensibly raising unemployment payments by $400/week. Because, however, a President cannot appropriate money and state governments cannot afford to throw in their required share, it is not clear where the additional funds would come from or whether any of it will ever actually wind up in America's household accounts.

In this morass, national politics has played out along our now-standard tribal lines. Though crises usually unite Americans, even if only for their duration, this pandemic has been an exception. For that, President Trump is principally to blame.  It is difficult in the best of circumstances to navigate the sea of lies, half-truths, vulgarities, neuroses, inanities and sheer stupidity that Trump and his band of grifters and C-minus enablers unleash on any given day.  But it becomes dangerous when the products of these transparently flawed characters are the prisms through which ostensible policy, if not actually made, must still travel. 

Trump's nakedly coarse take on all this is that "it is what it is".

The Democrats take is that what "is"  need not be much longer.

Joe Biden announced his Vice Presidential running mate this week, California Sen. Kamala Harris. Both Harris and Biden are center-left members of the Democratic Party and both have lengthy political resumes.  Biden was a Senator for thirty-five years and Vice-President for eight.  Harris is in her first term in the Senate but previously served as California's Attorney General for six years and San Francisco's District Attorney just shy of seven.

That, however, is where the similarities end.

Biden is old school.  He was born in Scranton, Pennsylvania in 1942, which is New Deal, not new wave.  He lived there for ten years until his family moved to Delaware, where his father found work.  He wasn't poor but his family knew economic struggle.  They had moved in with his grandparents while in Scranton after his father lost work and in Delaware they lived in a crowded apartment until they could afford another home.  In school, he was an athlete, not a scholar.  And the part of him that is Irish, from his mother's Finnegan side of the family, is loyal, sentimental and, in the tradition of most Irish pols, flexible.

Harris is not New Deal, she's America's New Real. Born in Oakland, California to an Indian-immigrant mother and Jamaican-immigrant father in 1964, there's an echo of Obama in her background -- mixed race, educational over-achievers (her father is an emeritus professor of economics at Stanford; her mother, who died in 2009, had a PhD and was a renowned biological researcher ), adolescence abroad (she attended and graduated from high school in Montreal where she, her Mom and her sister lived for a time following her parents' divorce), followed by college (Howard), law school (UC Hastings) and a climb up America's greasy political pole (ADA, state board member and then commissioner, DA, AG, Senator).  Along the way, she had an important boyfriend in Willie Brown, but that help only got her in two doors; the performance afterward was all hers.

Biden and Harris are a unique combination of competence, boredom and reflection.  Each of them knows how to run a government, something Trump doesn't even pretend to do (see Pandemic).

In his Senate career and as VP, Biden shepherded important legislation through Congress (the Violence Against Women Act), helped pass and manage much of Obama's critical stimulus and recovery program in the wake of the 2008 financial meltdown, and was bi-partisan (John McCain was one of his closest friends).  His ability to navigate the complicated ideological minefield that has been the Democratic Party over the last forty years, which some see as evidence of unprincipled hypocrisy, is actually the sort of pragmatism from which incremental progress is in fact wrought.

It's not always exciting.

But it gets the job done.

Harris is where, at least demographically, America is going.  By mid-century, white Americans will be less than 50% of the country.  The rest will be Black, non-white Hispanic, Asian (including Indian) American and mixed, and today, those groups already constitute a majority of young Americans.  These changes have already had political effects, turning solidly red states like North Carolina and Arizona into swing states  and even creating the possibility of additional swings in places like Texas.

Choosing running mates because they help you carry their state or region is a thing of the past (last effectively done, in fact, by JFK in 1960).

But choosing one who helps you appeal to the changing face of America is not.

And Harris helps Biden do that.

(Note to the Lingering Unsatisfied: Indian-Americans are the second largest immigrant group in the country, and there are more of them in each of Michigan, Wisconsin and Pennsylvania than Trump won those states by in 2016.)

At the same time, however, Kamala (pronouced "comma-la" even if Tucker Carlson doesn't care) is much more than a face, something that was lost in her erstwhile Presidential campaign and is not being sufficiently emphasized even now.

As a prosecutor, she significantly  improved the San Franscisco District Attorney's office, helping the City drastically reduce violent crime while also pushing for bail reform and and a novel re-entry program focused on education and community service that materially reduced recidivism.  As California's AG, she created a Mortgage Fraud Strike Force in 2010 in the wake of foreclosures brought on by the financial crisis, and in 2012 she successfully fought to increase (by 400%) California's share of the National Mortgage Settlement with the nation's five largest servicers.  In the Senate, tapping her inner-Clarence Darrow, she rendered  at least one of Trump's enablers -- Attorney General Barr -- more or less speechless.

Though paramount, the 2020 election has to be about more than getting rid Trump.

It has to be about more than that because Trump  has done more than any president in my lifetime to destroy governmental capacity.

Some examples:

Two crown jewels of American government -- the Department of Justice and the intelligence agencies -- have been decimated in an effort to make them either a vehicle of Trump's personal  pay-back (in the case of DOJ) or one in which facts take a back seat to presidential disposition (in the case of the intel agencies).  For its part, the State Department literally has dozens of critical positions that have remained unfilled for the past three plus years, and mindless deregulation has turned the environmental agencies into pollution machines. As for the Department of Education under Betsy DeVos, it is  basically a misnomer, more an adjunct of the NRA, corporate leeches and private schools as it has sought to arm teachers, defend lenders and phony on-line colleges, and cut public school funding.

On January 20, 2021, the nation's To-Do list will be overwhelming.

By then, we are likely to be well into our winter's pandemic of discontent.  At best, the economy will be struggling to regain its former exuberance, as will America's middle class, lower middle class and poor. At worst, if nothing has been done by way of relief beforehand, their position will be dire.

Whatever intelligence minefields have been kept from or ignored by Trump will have to be immediately tended to by Biden.  The rule of law will need to be restored at Justice  and under-secretaries and staff found to re-people State. A whole host of Executive Orders will keep an army of typists at work day and night repealing Trump's assaults on immigrants and the environment.

Unless the GOP has some sort of heart transplant (or mind meld with the ever-affable Biden), the Senate filibuster will have to go (lest, literally, nothing gets done).  And voting rights will have to be protected for the tens of thousands Trump and his state supporters have thrown off the rolls.

New York's Mario Cuomo once remarked that America's elected officials "campaign in poetry but govern in prose".  Trump, of course, is the exception.  He campaigns and governs more or less in a perpetual state of spite.  As for Biden and Harris, neither is particularly poetic as a matter of course, though Biden clearly recognizes it when he sees it  and Harris by dint of background has actually lived it even if she appears loathe to give public voice to it.

All that, however, is of no moment right now.

America is not starving for poetry.

It is starving for competence.

It wants a President who shows up for work before noon, doesn't think midnight tweets are part of the job description, deals in facts and truth, listens to experts, reads the daily intelligence brief, won't defend foreign fascists (or home-gown ones either), obeys the law, avoids impeachment, checks a good part of his ego at the door, and gets things done.

The last time the country faced such a daunting challenge, Franklin Roosevelt was President.

When Joe Biden was born.

The last time it produced a transformative sea of legislative progress was in the mid-1960s.

When Kamala Harris was born.

He's the New Deal.

She's the New Real.

And it's time for a couple of encores.

THE LEWIS LEGACY

After a three and a half hour funeral, civil rights icon and Georgia Congressman John Lewis was laid to rest yesterday in Atlanta.

What is his legacy?

At college in the late '50s, Lewis became a serious student of non-violence. In 1960, he  launched successful  sit-ins to desegregate Nashville's downtown lunch counters.  In 1961, he was one of the thirteen original Freedom Riders, refusing to sit in the back of buses as they rode from Washington DC to New Orleans.  In the course of those rides,  he was beaten in South Carolina and Birmingham, left unconscious from a beating at a bus station in Montgomery,  and regularly arrested. 

In Mississippl, he spent forty days in that state's Sunflower County penitentiary.

In 1963, at the age of 23 and as head of the nationwide Student Non-Violent Coordinating Committee (SNCC),  he was the youngest speaker to address the crowd of a quarter million from the Lincoln Memorial, demanding voting rights at the celebrated March on Washington.  In 1965, on Bloody Sunday, he was planning to walk from Selma to Montgomery in support of those same rights and expected to be arrested. 

Instead, he marched across the Edmund Pettus Bridge right into the skull fracturing baton of an Alabama state trooper.

And wound up in the hospital.

In the 1970s, he ran the  Voter Education Project, adding four million minority voters to the rolls.  In 1981, he became a member of the Atlanta City Council, and in 1986 he was elected to Congress. Until his death earlier this month, he served there for thirty-three years.  He was regularly returned to his seat in the House by two-thirds of his constituents.

At yesterday's funeral,  three former Presidents -- George W. Bush, Bill Clinton and Barack Obama -- eulogized him.

In those eulogies,  they recounted the emergence of a poor sharecropper's son from Troy, Alabama.    Preaching to his chickens, running for the school bus, becoming an ordained Baptist minister, and so ignited by Dr. King's Biblical call to non-violence and justice that he made it his life's work. 

"It is a great honor to be back at Ebenezer Baptist Church in the pulpit of its greatest pastor, Dr. Martin Luther King Jr.," said Barack Obama, "to pay my respects to perhaps his finest disciple."

"He insist[ed]," said George W. Bush, "that hate and fear had to be answered with love and hope." He was so insistent, said Bill Clinton, that in 1966 he lost the leadership of SNCC to Stokely Carmichael,  refusing to believe that aggression and exclusion would be more effective than Dr. King's non-violent universality. "[I]t must have been painful to lose," said Clinton, "but he showed as a young man there are some things you cannot do to hang on to a position,  because if you do them, you won't be who you are anymore."

John Lewis never stopped being who he was.

In his eighty years, he fought discrimination in all forms . . . in all forums . . . against anyone . . . and at any time.

Even as an old man . . .

When he sat all night on the floor of the House of Representatives demanding a vote on legislation to end gun violence.

Even as a dying man . . .

When he stood on that street in DC on which  Black Lives Matter had been written, the street where protesters of all colors daily gathered in the wake of the death of George Floyd , the one from which US soldiers were illegally ordered to remove them.

What is his legacy?

It is, as Bill Clinton put it, "to suit up and march on."

"Bull Connor may be gone," said Barack Obama, "But today we witness with our own eyes police officers kneeling on the necks of Black Americans.  George Wallace may be gone.  But we can witness our federal government sending agents to use tear gas and batons against peaceful demonstrators."

"We may no longer have to guess the number of jellybeans in a jar in order to cast a ballot," he continued, "[b]ut even as we sit here, there are those in power doing their darndest to discourage people from voting -- by closing polling locations, and targeting minorities and students with restrtrictive ID laws, and attacking our voting rights with surgical precision, even undermining the postal service in the run-up to an election that is going to be dependent on mailed-in ballots so people don't get sick."

There's a lot to do.

"The story that began in Troy," said President Bush, "isn't ending today, nor is the work."  

On the morning of the funeral, aware of the praise that would come Lewis's way and therefore more or less on (psychological) cue, Donald Trump raised the possibility of delaying this November's election.  The ostensible purpose, according to Trump, would be to avoid mail-in ballot fraud, a fear he and Attorney General Barr have repeatedly stoked of late but one that lacks any basis in fact.

Almost immediately, Trump's latest trip to the altar of anti-democratic authoritarianism was rejected en masse.  

Democrats were predictably aghast but even stalwart right wingers thought this a bridge too far.  Prof. Steven Calabresi, a founder of the conservative Federalist Society, called the suggestion "fascistic",  and historian Michael Beschloss noted that during the Civil War President Lincoln had categorically rejected it.  Closer to home, Senate Majority Leader Mitch McConnell said it wouldn't happen, and legal experts far and wide asserted that it couldn't anyway, the November 3 election date having been set by statute and unchangeable absent a new one.

But is it?

There have been numerous reports over the last two years of unknown emergency powers available to the president.  Last week, former Sen. Gary Hart penned an op-ed in The New York Times.  "We have recently come to learn," he wrote, "of at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances."  No one, according to Hart, knows what these powers are or what specifically they permit, and delaying or otherwise avoiding elections may easily be one of them.   

For any who think Hart another Democratic Cassandra, he served on the Church Committee that investigated and laid bare the abuses of the CIA in the 1970s. He also co-chaired the Hart-Rudman Commission that predicted the 9/11 terrorist attacks.  

We ignore him at out peril.

And though, as President Clinton noted yesterday, "there are some things" his deceased hero would not do "to hang on to a position",  the same cannot be said of Donald Trump.

So . . .

What would John Lewis do?

I don't know precisely.  

But what he would not do is sit idly by assuming the worst was not possible or the best was likely.  He would not assume that past is necessarily prologue.  "We cannot treat voting as an errand to run if we have some time," said Barack Obama yesterday, "We have to treat it as the most important action we can take on behalf of democracy."  

At the funeral yesterday, the strains of "We Shall Overcome", that ancient anthem of hope,  reverberated through Dr. King's church.  It was sung to celebrate a man who was beaten within inches of his life because he insisted that all Americans had the right to vote.

Thanks to him, and others like him, we do.

We all do.

We still do.

And Trump better not fuck with it.