Category Archives: Wash Post

“Matthew Whitaker is a crackpot.” Ruth Marcus in the Washington Post

I’ve just read that President Donald Trump has appointed Matthew Whitaker as acting Attorney General after forcing AG Jeff Sessions out. Whitaker, who served as Sessions’ chief of staff, will now oversee Robert Mueller’s investigation. Mark Sumner, in the Daily Kos of November 9, writes that Whitaker “isn’t just a nut, he’s a dangerous nut.” Are Marcus (“crackpot”)  and Sumner (“nut”) right about our new Attorney General? Given the President’s previous disastrous Cabinet appointments he probably is as described by the journalists, and consequently it’s not looking good for the rest of us.

Here’s the piece from the Daily Kos:

When Jefferson Sessions stepped down, the next in line at the Department of Justice should have been Deputy Attorney General Rod Rosenstein. But putting Rosenstein in charge would have meant having someone who demonstrably had followed the rule of law instead of the edict of Trump, so he was bypassed in favor of Matthew Whitaker, a man whose qualifications literally consist of his demonstrated willingness to join Trump in the critical work of turning the American justice system to rubble.

Whitaker was so not considered the obvious replacement to Sessions, that there hadn’t been a lot of vetting of his background before his name appeared on Sessions’s “at your request” resignation. And now that people are looking at the man who is sitting in the AG office in violation of the Constitution, the ridiculousness of his appointment seems at least equal to that of Andrew Wheeler at EPA, or Rick Perry at Energy, or Ryan Zinke at Interior, or Scott Pruitt at EPA, or … name a Trump nominee.

But Whitaker is in a position, at a point in time, to be a special kind of crazy dangerous. As Whitaker explained to Caffeinated Thoughts, he believes the whole concept of judicial review has been wrong for the last 200+ years, right back to “the idea of Marbury v. Madison.”

Then there’s Whitaker’s role in setting up a company that was a scam from its inception. A role that Whitaker embraced by sending letters threatening legal action to anyone who complained of being taken for $2k, or $15k, or $70k while getting absolutely nothing in return. That company bilked some customers of their life savings—and Whitaker didn’t just profit from that theft, he made it possible. The Washington Post provides some details on the company where the new attorney general served as both board member and bullying lawyer….

How inferior does the current attorney general believe the courts to be? So inferior that following the law is optional. As part of the settlement after his fake company was called out by the FTC, Whitaker was ordered to repay the money he had been paid for serving on the board. But, as the Wall Street Journal reports, Whitaker did not respond to a demand letter. He not only kept his pay for working for the patent scam company, he also kept a $2,500 donation from the company to one of his failed campaigns.

The acting attorney general of the United States, the man running the Justice Department, is a man who believes the whole judicial branch is “the inferior branch” and who refused to pay back money he collected from a scam, even when ordered by the court. The nation’s chief law enforcement officer—does not believe in the law.

As Ruth Marcus put it in the Friday Washington Post, “Matthew Whitaker is a crackpot.”
Which is completely, and obviously true. But she’s left out a word in that description. Matthew Whitaker is a dangerous crackpot. He’s in a position, at a time when he can deeply impact not just the investigation into Donald Trump’s conspiracy with Russian oligarchs, but the structure of the Justice Department, the nature and quality of the FBI, and the possibility of dealing with any matter fairly, under the rule of the “inferior” law. With a lame duck Republican Congress that is pointedly remaining silent about Whitaker’s unconstitutional appointment, the Justice Department is in the cross-hairs of a crackpot.

Is anyone listening?


Today, thousands of species of wildlife sit on the verge of extinction because of our actions. We have destroyed their habitats, fundamentally altered the climate by pumping carbon into the atmosphere and hunted down once-massive populations to groups so small that we can count the surviving animals on our fingers. So great is this anthropomorphic threat that scientists argue that we’re currently in one of the worst mass extinction events in the history of the world — up there with a cataclysmic volcanic eruptions and collisions with asteroids.   (Robert Gebelhoff, Wash. Post, 10/17/18)


Fred Barbash on the Rule of Law

I’ve written any number of times of the importance of the Rule of Law, along with the importance of the Enlightenment, or what is now referred to as Classical Liberalism:

“Classical liberalism” is the term used to designate the ideology advocating private property, an unhampered market economy, the rule of law guaranteeing the rights of the individual, constitutional guarantees of freedom of religion and of the press, and international peace based on free trade.

Well here are good examples of the Rule of Law in the America of Donald Trump, when the Judges are ruling, following the Law against the President, and thank goodness for that. —

The Trump administration’s crazy losing streak in the courts: No, Jeff Sessions, it’s not about the judges.

U.S. Attorney General Jeff Sessions attends a Trump Administration cabinet meeting in the Cabinet Room at the White House on Wednesday. (Photo by Chip Somodevilla/Getty Images)
October 19
Litigation is like everything else in life, including sports and perhaps dating. You win some and you lose some. You can blame the refs, or the date, or the judge if things go bad a few times. If losing lawsuits becomes a pattern, especially when you’re the government, which is supposed to win, you have to start wondering: Is it you?

The Trump administration is on a staggering litigation losing streak, with restraining orders littering the legal battlefield from coast to coast. To be sure, some of these fights are not over. Most of the rulings have found plausible cases of constitutional or statutory violations, with trials and possible appeals yet to come. But getting that far against the government used to be a big hurdle. Now, not so much.

And in many instances, it’s not just one judge ruling on one issue. It’s a pile-on, in which multiple judges arrive at the same conclusion about the same issue.

Among those issues, for example, are the administration’s “sanctuary cities” crackdown, blocked by at least four courts; its attempt to rescind DACA, also held up by at least four courts; the proposed ban on transgender people in the military, blocked by no fewer than four judges, with two of the rulings upheld by appeals courts.

And not to be forgotten, the Trump administration’s travel ban, enjoined repeatedly by multiple rulings until the Supreme Court finally allowed its third iteration to go forward.

Meanwhile, Attorney General Jeff Sessions is blaming the judges.

In a speech to the conservative Heritage Foundation on Monday he bemoaned the losses, but attributed them to rampant “judicial activism,” and  judges who have forgotten about “the rule of law” and the “guardrails” that limit them.

Their activism, he said, “is a threat to our freedom and the democratic process.”

Some legal experts do believe that the judiciary is feeling bolder than it once did, perhaps because of what they see as presidential overreach, perhaps because of Trump’s open hostility to the federal courts, reflected in his comment in 2017 about the “so called” judge who first ruled against his travel ban and his reference to U.S. District Judge Gonzalo Curiel’s “Mexican heritage” when he was presiding over a case against Trump University. “Context matters,” as former federal judge and now Harvard Law School’s Nancy Gertner wrote in an article called “Judging in a Time of Trump.” And some of the language in the rulings does indeed show a fired-up sense of mission. “It falls to us, the judiciary…to act as a check on such usurpation of power,” wrote Ronald Reagan appointee Judge Ilana Rovner in April as the Court of Appeals for the 7th Circuit upheld an injunction against Sessions’s sanctuary cities policy on the grounds that it assumed authority delegated to Congress alone.

But there wasn’t a hint in Sessions’s speech of any fault with the administration, the way it does business and the impulsiveness of the president. No “mistakes were made” crossed his lips.

But reading the many rulings, from Republican and Democratic appointees alike, the decoupling of the Trump administration from the requirements of the law is clear.

When the government makes a decision, that law demands, at the very least, a legitimate explanation and some facts, studies and statutes to support it. Judges call it “considered reason” and “deliberation.”

It’s not complicated. If an agency gets its act together before making decisions, bringing in lawyers and experts to bulletproof it from lawsuits, it may still get sued. But it will stand a much better chance of prevailing. In most cases, the courts defer to solid judgments by the government.

But “considered reason,” “deliberation” and facts have not been hallmarks of the Trump administration, in the view of the judges in these cases.

Perhaps the most glaring example was the abrupt decision by President Trump to announce a ban on transgender people from serving in the military, reversing a carefully studied decision to the contrary by the Obama administration.

The news of the reversal came in a series of tweets by Trump on July 26, 2017, saying he was acting after consultation with top brass and “military experts,” followed by a presidential memorandum a full month later directing the Secretaries of Defense and Homeland Security t “return” to the military’s policy to discharge openly transgender service members and prohibit the admission of new ones.

Top military officials, who had indeed not been consulted, were taken by surprise.

What followed were lawsuits and courtroom scenes that have become all too familiar to the government lawyers into whose laps the cases fall after these decisions are made.

Wearing his good suit, and earnest, deferential courtroom demeanor, one such lawyer stood before U.S. District Judge Marsha Pechman in Seattle four months after the Trump tweets attempting to defend the action.

“Good afternoon, your honor, may it please the court. Brinton Lucas for the United States,” he began in the case of Karnoski v. Trump.

A good afternoon it would not be.

His opening gambit was to try to convince Pechman that there was no ban, just a memorandum and a study of a ban. Nobody had been thrown out of the military yet, so there was no case to consider. The lawyer’s argument was routine and perfectly normal in regular circumstances.

But the Trump administration is not normal.

Roughly four minutes into his argument, Pechman interrupted.

“You’re gonna need to back up,” she said. You’re going to need to “address the president’s words,” in this case a tweet, “when he said that ‘after consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military.”

She added: “There’s nothing ambiguous about that statement….I mean, what am I supposed to do with the president’s tweet if that’s not something you can rely upon?” At one point she made reference to “bone spurs,” the ailment which reportedly kept Trump from being drafted.

Nor was the decision entitled to any deference, she wrote. “The prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation,” she added. She then issued a preliminary injunction against the ban, concluding that the plaintiffs were likely to prevail on the merits and show that the policy was an unconstitutional act of discrimination.

She was not the first judge to act. A court in the District had done the same three weeks before the hearing. Another in Maryland had done the same even as the hearing was underway. By September of this year, at least four district court judges agreed in separate cases. Pechman’s order had been upheld by a unanimous decision of a three-judge panel of the Court of Appeals for the 9th Circuit and the Court of Appeals for the District of Columbia had upheld the District ruling.

By a very rough count, a grand total of some 40 to 50 federal judges have weighted in against the Trump administration in cases. Could they all be off-the-rails judicial activists?

The problem is not the judges, said Anthony S. Winer, a professor at the Mitchell Hamline School of Law who wrote recently about some of these cases in the Hamline Law Review.

“It’s a commentary on the legal methods” of the Trump administration, he told The Washington Post. The administration “advances policy goals on the basis of ‘things to be frightened of, and things to be wary of’….It relies on the emotional reaction of its audience and the emotional identification of its audience.

But when you’re in a courtroom, what matters is facts on the record,” he said, and those facts “don’t support the government’s justifications for what it has done.”

As for the lawyers for the U.S. government, Winer said they “probably did the best they could in defending these executive orders.”

Consider the litigation over the sanctuary cities crackdown, a favorite of Sessions.

Acting under a Trump executive order, Sessions has determined that the government will withhold funds from jurisdictions that are in his view insufficiently cooperative in handing over information about illegal immigrants they encounter in law enforcement. Sessions was backed up by Thomas Homan, then the acting director of Immigration and Customs Enforcement, who went on Fox News in January and threatened to start “charging some of these politicians with crimes” for failing to cooperate with his agency. He was also supported by the president, who that same month accused California of protecting “horrible criminals” with it sanctuary policies, and said he was contemplating pulling ICE agents out of the state, saying California would then become a “crime nest.”

They then sent government lawyers into court when the state of California, the city of San Francisco and other jurisdictions sued. Like the lawyers in the transgender case, they argued that nothing was happening.

“Good afternoon, Your Honor. Chad Readler, on Behalf of the United States,” said one of the Justice Department’s top lawyers when he appeared in court in February to defend the administration.  

“Welcome back to San Francisco,” responded Judge William H. Orrick of the U.S. District Court.

Three minutes into Readler’s argument, however, Orrick interrupted.

What did Readler mean when he said there was no threat to these jurisdictions, he said. What about “the statements of the President last week threatening to take ICE enforcement out of the State, or the Acting ICE director’s threat to prosecute criminally public officials….?”

To which Readler replied that the comments weren’t relevant.

Orrick issued an order temporarily blocking the sanctuary cities policy and ultimately, on Oct. 5, an opinion declaring unconstitutional the law being used by the administration to block funds.

Nine judges have either issued or upheld opinions and/or temporary restraining orders against the administration’s sanctuary cities crackdown.

At least two, in California and the District of Columbia, have rejected its asylum and family separation policies.

Earlier this month, Judge Edward Chen in the Northern District of California blocked the decision to end temporary protected status for immigrants from selected countries. and six have ruled against the government in the census cases.

Some judges are openly astonished at what they’re seeing.

Again a refresher: when a typical federal agency makes a decision, particularly one abruptly reversing course, it owes an explanation. That’s the law. So when newly-installed Trump administration officials at a Department of Health and Human Services agency, suddenly under the sway of officials who championed abstinence as the best way to prevent teen pregnancy, suddenly cut off funding to 81 pregnancy prevention programs in July 2017, it was asking for lawsuits. The Office of Adolescent Health had provided no notice to the programs and no explanation.

Suits erupted across the country, aided by advocacy groups and local governments. Four government lawyers then found themselves in the courtroom of Judge Ketanji B. Jackson in the U.S. District Court for the District of Columbia on April 18 for a hearing.

“Good morning, Your Honor, Michael Gerardi on behalf of Health and Human Services,” said the lead trial attorney. But it would not be a good morning for Gerardi either.

Jackson pressed him.

“So is it your position,” the judge asked incredulously, that “the agency can suddenly decide, ‘We’re not giving you this money anymore ….Too bad. So sad. Regardless of whether there’s cause or anything else….?”

To which Gerardi, replied at some length, yes, that was the position.

That’s “kind of weird,” replied Jackson. “Right?”

She joined at least four judges in separate courts around the country in rulings against the agency under the Administrative Procedure Act.

The case, she wrote, was “quite easy. Under the most elementary precepts of administrative law, an agency has no choice but to provide a reasoned explanation for its actions….”

With the Trump administration now filling scores of federal judicial vacancies, it’s luck may improve. But if history is any guide, Sessions shouldn’t count on it.


UNTRUTH: Trump calls Puerto Rico response an incredible unsung success

President Trump on Sept. 11 praised his administration’s response to the damage to Puerto Rico from Hurricane Maria, where the death toll was nearly 3,000.

(by Josh Nawsey, The Washington Post, September 12, 2018)

An estimated 3,000 people died after the devastating Hurricane Maria ravaged Puerto Rico last year. Large swaths of the island were without power for months. FEMA was short thousands of workers and underestimated how much food and supplies were needed in the recovery, according to a federal government report.

But in the eyes of President Trump, the government’s response was a raging success — and one he touted this week as a monstrous hurricane pinwheeled toward the Carolinas.

“We got A Pluses for our recent hurricane work in Texas and Florida (and did an unappreciated great job in Puerto Rico, even though an inaccessible island with very poor electricity and a totally incompetent Mayor of San Juan),” he wrote Wednesday on Twitter.

It’s a frequent tactic of the president — elevate a widely perceived failure or mistake and defend it as a great triumph while attacking his critics. His detractors say it is shameless and sometimes comical gaslighting; supporters say he is just a master marketer who uses hyperbole and always shows strength.

“You just never give an inch or admit any mistake in public,” said Sam Nunberg, a former aide describing Trump’s mind-set.

Inside the administration, firing James B. Comey as FBI director in May 2017 is widely perceived as an original sin that spun a cascade of other problems for the White House — including the creation of a special counsel’s investigation that has tormented the president and includes an obstruction-of-justice inquiry. He was repeatedly counseled against the firing by top aides such as former chief of staff Reince Priebus, White House counsel Donald McGahn and former White House strategist Stephen K. Bannon, who have since faced hours of questioning over Trump’s actions as part of the special counsel Robert S. Mueller III’s probe.

Puerto Ricans agree: Trump’s response to Maria was a failure

In the town of Yabucoa, residents say their government let them down and their struggle continues one year on.

But rather than show any signs of regret, the president has instead championed Comey’s firing, both publicly and privately, as a smart decision.

“I did a great service to the people in firing him!” Trump tweeted this summer.

Trump faced withering criticism, even from supporters, for standing on a podium in Helsinki in July and cozying up to Russian President Vladimir Putin while seeming to question U.S. intelligence agencies’ findings that Moscow interfered in the 2016 election and entertaining the idea of letting Russian law enforcement officials question American citizens.

But to hear Trump tell it these days, it was one of his finest hours.

“One of my best meetings ever was with Vladimir Putin,” he said earlier this month, before attacking the “fakers,” or his short-term for the “fake news media.”

This week, he has repeatedly brought up Bob Woodward’s book “Fear” — continuously calling attention to a portrayal of his White House as incompetent and veering toward a breakdown. Trump says the book is a “scam” and that his White House is a “smooth running machine.”

Aides say that Trump’s tendency to focus on and defend his perceived failures is fueled by a mix of potent factors. He obsesses over negative news coverage sometimes long after the topic has changed. He often marvels that he can make the cable news chyrons change. And he is constantly selling himself — regardless of who is in front of him and no matter the topic.

Sometimes, he is trying to preempt criticism that he knows is likely to revive itself, like before this week’s hurricane. And he tells senior aides that his supporters will believe his version of events.

It leads to awkward encounters and surreal situations for those around him. His comments this week on the administration’s handling of the recovery effort in Puerto Rico following last year’s hurricane quickly morphed from a defense of how a difficult situation was handled to a declaration that it couldn’t have gone better.

It was “one of the best jobs that’s ever been done with respect to what this is all about,” Trump told reporters in the Oval Office on Tuesday.

It was a statement that drew immediate condemnations and questions about how Trump could characterize the recovery effort as such a success especially on the heels of a study that estimated there were nearly 3,000 excess deaths in Puerto Rico due to the hurricane.

“You know there are no A-pluses in disaster recovery. That letter doesn’t exist,” said Marc Ferzan, who led recovery in New Jersey after Superstorm Sandy and is now a consultant.

Trump also broods over perceived mistakes, even if he won’t admit they are missteps. He has repeatedly brought up to aides his decision to endorse Roy Moore in the Senate race in Alabama last year. Moore lost after The Washington Post reported on allegations that he pursued and sexually assaulted teenage girls when he was in his 30s.

“The president asks me all the time, ‘Why did Roy Moore lose?’” Mick Mulvaney, his budget director, recently said at a New York fundraiser.

He has also complained that aides publicly admitted mistakes earlier this year over their handling of allegations that former White House staff secretary Rob Porter was emotionally and physically abusive toward his two ex-wives. “You should have never apologized,” he told a group of communications aides, according to two people. “You don’t ever apologize.”

Trump observers and critics said that the president’s refusal to admit mistakes and to go a step further and declare them smart moves has long been part of how he operates.

“One of his great strengths is that he lives in his own reality distortion field — there is this narrative going on all the time in his head about how successful he is, how great he is — one of the things that allows him to plow ahead after he makes mistakes,” said Timothy O’Brien, a longtime Trump biographer.

 The Administrative State and the End of History

Francis Fukuyama just has to be wrong. Not about the end of history, for we are at history’s end (history being up until now the very imperfect record of how man has governed himself during some 50,000 or more years) but about the nature of the organizational structure of the last state.

The last state is/was not, of course, communist as Marx, Lenin, Mao and their followers would have it, nor was it the fascist state tried by Hitler and others, and still being tried by reactionaries today, but, and this a big but, neither was the last state liberal and democratic as described by Fukuyama.

The last state marking history’s end just has to be the administrative state. Not the fake autocratic democracies of present day Russia, Iran, Turkey, and Venezuela nor the real autocracies of China, Syria, Egypt and Cuba.

The administrative state is, or will be in most places, the last one standing because it is the only governing political structure that takes into account the huge differences there are among people. And that has to be the biggest discovery of the modern world, that people are different, and not because of the color of their skin. For much too long political leaders of all stripes have been devising governing structures that would attempt, unsuccessfully of course, to make people all the same, perhaps wrongly assuming they were. They’re not.

People are different. And our differences are now more than ever in view, if not in all instances thriving. And only the administrative state, among the world’s governing structures, tries to recognize and contain the differences among us while not just placing them within, but making then an integral part of, the constantly evolving, fluid and what seems to be the unwieldy and formless state structure encompassing them.

However, we’re not there yet. In fact it does still seem all too often  that we can’t yet govern ourselves, that our leaders, such as they are, are themselves most often at a loss what to do. So as I say it’s messy, life’s messy, but what we have come up with, the more and more global administrative state, is par for the course, probably the best we can do at present.

As crazy as this may seem, as crazy as it seems to me, there are those who would bring down the administrative state: —Steve Bannon, for example, but also the recent Supreme Court nominee, Neil Gorsuch, an originalist, or one who would always go back to our founding documents as if they were no less relevant today than at their origin (if then).

These people and others, mostly of conservative, nationalist, and nativist views, many among the close advisors of President Trump, while trying to correct what they may see as the failures of present day societies, only make things worse by favoring this group or that group, their groupings based on ethnic, racial, sexual or other superficial divisions, never on the fundamental and individual differences among us, these being the only ones that really count. The real failures of our society including economic inequalities, family breakdowns, true believers turning into fanatical Islamic terrorists, the country’s lacking a moral center, the frequent and ubiquitous manifestations  of untruth and unreason) remain pretty much untouched.

The differences between us now coming out mean that we have to constantly confront an endless stream of issues and problems, and it’s only the administrative state that seems to be up to the task of handling them.  Here are two examples of the typical situations that we face all the time.

The first follows from the sale of recreational marijuana being allowed in Massachusetts. In November of last year 1.8 million residents went to the ballot boxes to vote to legalize recreational marijuana. The result was that growing, buying, possessing, and using limited quantities of the drug became legal in Massachusetts. How will the sale and use of the drug be regulated and controlled?

The second situation follows from the fact of the sale and distribution of foods taking place in public on the streets of Bangkok, Thailand. The streets in the example, and in the pictures below are in Bangkok, but they might have been in lower Manhattan or New Orleans.

Both situations will mean, of course, that new regulations will be necessary, probably a lot of regulations (and who would want it otherwise?) on top of whatever codes and regulations already existed for this sort of thing. The bureaucratic state with all its red tape is here to stay. There are thousands, hundreds of thousands of situations like these just in our own country’s history.

By the way we may be “great” now. But history, if nothing else, makes it clear that at no time in the past were we great. (History of course being one of the subjects of which our President is almost without any knowledge, that is ignorant.)

World wide there are millions, hundreds of millions of situations springing up where new regulations  are needed and necessary. And when the people who are living together are all different, as is the case now and has always been, it makes it even more difficult and complicated to resolve the problems arising from such situations. But we have to do it, and we have to do it by means of the last state standing.

In Massachusetts State Treasurer Deborah B. Goldberg is the top recreational marijuana regulator, with unilateral power to hire and fire the officials who will oversee the new billion-dollar industry. But things will probably not remain that simple. The State Legislature wants some of the action, and appears likely to strip Goldberg of her authority, perhaps creating an independent marijuana oversight commission instead.

Also Representative Mark J. Cusack, House chairman of the committee overhauling the voter-passed pot law, floated the possibility that a “new regulatory structure, such as an independent commission,” might work better for Massachusetts than the current plan. It’s worth reading the article from the Boston Globe, Lawmakers may strip treasurer of pot authority, as a fine example of the rapid growth, in this case, of state agencies. No end in sight?

From the Globe article: “…Advocates expressed worry that taking authority away from Goldberg would push the opening of retail shops further into the future. The treasurer’s office is the appropriate place for the Cannabis Control Commission because both this treasurer, and past treasurers, have shown a very high level of regulatory ability with the Alcoholic Beverages Control Commission, which is the most analogous agency. Our fear is that moving the Cannabis Control Commission now, after considerable work has taken place in the treasurer’s office, will result in additional delays,,…”

The other article,

The World Capital of Street Food Is Banning Street Food,

is from the magazine Foreign Policy.

Bangkok’s bustling, roadside food stands are legendary. But with the Thai government’s new decree to shut down street food — in an attempt to improve safety and cleanliness — outrage is growing.

Below I’ve posted a few of the pictures from the streets of Bangkok. After looking at them imagine it your job to determine the amount and kinds of rules and regulations that would be necessary to be sure that people there in the streets were not at risk from the products they were buying. I’m sure you’ll agree that regulations (and a lot of them) will be necessary.

These two articles almost by themselves ought to make us, if we’re not already, believers in the Administrative State. For me it was like realizing where I had been living all my life, just as M. Jourdain in the Molière play realized he had been speaking prose all his life.

Link to Foreign Policy

Neil Gorsuch on the Administrative State

Just heard that Neil Gorsuch has been confirmed by the Senate to the ninth seat on the Supreme Court.

Will the new Justice undermine the administrative state, what I’ve called our “speaking mostly in prose?” And will he try to return us to the poetry of the past, to the Constitution, as he seeks to promote his own originalist position?

Scalia and Gorsuch

We are told that Gorsuch in respect to the Constitution is an originalist much like Antonin Scalia whom he greatly admired and whom he is replacing. The two men would do nothing that was not allowed by the historical moment, time, and spirit of the Constitution. In a more conservative court Scalia would not have permitted abortion, same sex marriage, probably not assisted suicide. Will Gorsuch be with him with similar positions?

Emily Bazelon and Eric Posner have written (see The Government Gorsuch Wants to Undo) that Gorsuch’s being on the court would be bad not only for the administrative state but even worse for the country.

“Judge Gorsuch,” they write, “embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”

Their words are a clear statement that the rules and regulations that we are obliged to live with, and while mostly complaining about, see them as more important than, say the much ballyhooed separation of powers, for our country’s well being. Think clean air and water, previous existing medical conditions, the safety of the work place, not to mention the rights of minorities whose presence was not even acknowledged in the Constitution or in the earlier history of the country.

In other words Gorsuch would strongly oppose the administrative state, placing himself “smack” in the company of Steve Bannon, who has called any number of times  for its “deconstruction.”

Trump of course didn’t understand what he was doing by choosing Gorsuch. And as for Gorsuch himself, one might ask if he, for all his otherwise brilliance and readiness to serve on the court, really understands the weakness of the originalist position, his own and the one he so much admired in his predecessor Antonin Scalia. In a world, our world, where change is everywhere and where evolutionary science is to be looked to for guidance, more so than tradition and yes more so than religion, stuck no less than tradition in the past, and needing desperately (think priests in the  Catholic church and terrorists in ISIS) to change.

As Judge Gorsuch himself put it in a speech last year (Summer, 2016) the Legacy of Justice Scalia, the administrative state “poses a grave threat to our values of personal liberty.” It would seem therefore that Gorsuch would go along with the House bills that would undo so many of the rules we have come to live with, rules that in most instances do not take away our personal freedoms but enable us to better enjoy them. Think environmental protection, rules of the road, the rules of our games, both road and games entirely dependent on rules and referees, as so much else in our lives. And all that has been a good thing.

Nan Aron, the president of the Alliance for Justice, agreeing with Bazelon and Posner, has written  (see, Adam Liptak,  in a Times article,1/2017, In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style,) that Judge Gorsuch’s stance on federal regulation was “extremely problematic” and “even more radical than that of Antonin Scalia —

“Not requiring courts to defer to agency expertise when an act of Congress is ambiguous,” she said, “will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law.”


Judge Gorsuch’s writing does differ, perhaps, from Justice Scalia’s in one major way: His tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding. (See above, Adam Liptak.) This difference was what probably got Gorsuch through the confirmation process and the questioning by the Senators so easily.

Judge Gorsuch’s confirmation probably means that for the time being the court will return to a familiar dynamic, with Justice Anthony M. Kennedy, a moderate conservative, holding the decisive vote in many closely divided cases (again Adam Liptak). But most important Gorsuch’s confirmation will give added life to the originalist positions of the conservative Justices now on the Court, threatening what the more liberal and progressive courts have achieved up until now, especially if Trump goes on to choose still another originalist for a new SCOTUS vacancy.

In Orlando, a bald eagle flew into a sewer and died.

Is this piece below, what I would call Trump sightings during the week of December 17, anything more than sour grapes on the part of the writer? In some part probably. And yet didn’t Donald Trump, by his own distortions of the truth, by his out of all control tongue during the recent campaign, bring this and thousands of other no less extravagant and harsh judgments upon himself?
HARPER’S Weekly Review, week of November 17, 2016

Donald Trump, a real-estate developer endorsed by the Ku Klux Klan, was elected president of the United States. Following the election, the Canadian government’s immigration website crashed, the Dow Jones temporarily plummeted, two LGBT suicide hotlines reported a spike in call volume, and more than 4.3 million Americans signed a petition asking state electors to pick as president former candidate Hillary Clinton, who won the popular vote by a margin of at least a million but failed to win a majority in the Electoral College.elephant “The Electoral College is a disaster for democracy,” Trump tweeted in 2012. Trump appointed the editor of an alt-right news site as his chief strategist, and more than 400 hate crimes were reported across the country. The mayor of Clay, West Virginia, resigned after commenting favorably on a Facebook post that compared First Lady Michelle Obama to an “Ape in heels”; the deputy director of a corrections center in Memphis, Tennessee, resigned after writing on Facebook that “the KKK is more American” than Barack Obama; a school-board member in Little Rock, Arkansas, was investigated by the superintendent for wearing blackface; students in Indiana, Michigan, and Texas chanted variations of “Build a wall!” during their lunch periods; middle-schoolers in Oregon shouted “Go back to Mexico!” at an 11-year-old Colombian American; a banner that read “Death to Diversity” was hung in a Colorado library; a high-school student in Redding, California, handed out fake “deportation orders” to his minority classmates; a Maryland elementary-school bathroom was vandalized with the message “KILL KILL KILL BLACKS”; a Maryland Episcopal church sign advertising Spanish services was vandalized with the message “Trump Nation Whites Only”; an LGBT-friendly Episcopal church in Indiana was vandalized with a swastika and the words “Heil Trump”; a note reading “You can all go home now” was posted on a Muslim family’s front door in Iowa City; a Muslim teacher in Atlanta found a note in her classroom telling her to hang herself with her headscarf; Muslim girls in San Jose and Albuquerque reported having their hijabs forcibly removed from their heads; a Muslim student at the University of Michigan was threatened with immolation; swastikas were drawn on the dorm-room doors of Jewish students at the New School in New York City; “Trump!” was written on the door of a Muslim prayer room at New York University; a college student in Oklahoma threatened in a group messaging app to lynch black students at the University of Pennsylvania; a boy in Pennsylvania carried a Trump sign through the halls of his high school shouting “White power!”; signs advising white women not to date black men appeared on the campus of Southern Methodist University in Dallas; a teacher in a Tampa Bay high school was placed on leave for allegedly threatening to “call Donald Trump and get you sent back to Africa”; a neo-Nazi blogger declared New Balance the “official shoes of white people”; and a neo-Nazi leader of the alt-right movement enjoined his followers to make “brown people … feel that everything around them is against them.” In Orlando, a bald eagle flew into a sewer and died.


The gap between us

Is there a gap in our society that needs bridging? Between say the followers of Hillary Clinton and Donald Trump, between those on the left and those on the right, between liberals and conservatives?

Furthermore do the present country wide demonstrations against newly elected President Trump, mean that the gap is there and still very much alive? Or is it what we would rather be the case, that the recent statements of President elect Trump, as during his talk with President Obama in the Oval Office, imply that the gap, while still there, is less than it was? For it does seem to be that just the fact of being the newly elected president nullifies the irresponsible positions and statements of the candidate who came before.

And what about Hillary? Was she speaking of a gap or separation between us when she said, “You know, to be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?  The racist, sexist, homophobic, xenophobic, Islamaphobic, the ‘you name it.’”

Are there people like that? Are the “deplorables” real? The Blacks will tell you, yes, there are racists out there, as will gays confirm the presence of homophobics, women of sexists, immigrants of xenophobics, and Muslims of Islamaphobics.

So is the principal gap among us that between those of us who are racist, sexist, homophobic, xenophobic and those of us who are not? No, I don’t think so. (Also, no one is never just any one of those sorry characters alone.)

The gap, I think the principal one, is as always the gap between the “haves and the have-nots,” these two groups out numbering by orders of magnitude racists, sexists, and the others. In fact, the gap between rich and poor has probably been with us since the advent of civilization some 10,000 or so years ago, that point in our history when wealth accumulation became possible.

Prior to that time in our history there were the so-called hunter/gatherer societies but the anthropologists who study these people have, as far as I know, not yet uncovered among them Hillary’s deplorables and the “you know whats,” nor the legions of the poor and the jobless of today. Was it, perhaps, because the land was only there to use, not to take, as in the time of the native Americans?

But I’ve done it once again, while writing losing my north, my direction. What I had intended to write about was not all the above but the single, and for me most troubling gap of all, that being the ability gap (or gaps). For it is, I believe, differences of ability that most separate us. Even in just one family sometimes these are not easy to overcome.

At one extreme these gaps are huge, that between me and Richard Feynman, or between me and LeBron James, or between me and Beyonce. Take any ability, any one of the seven abilities, or as Howard Gardner called them, “intelligences,”  —musical-rhythmic, visual-spatial, verbal-linguistic, logical-mathematical, bodily-kinesthetic, interpersonal, intrapersonal, and an eighth, naturalistic, and then you will see that the distances between us in respect to any one of these is huge.

So we all might on a scale of 1-10, for each of these abilities, place ourselves in respect to the “amount” of the ability in our possession, the one end, a 10, representing respective abilities of Richard Feynman, Lebron James, and let’s say Bach or Mozart (in place of Beyonce), and at the other a 1 representing (there was a point when I wanted to say Donald Trump, but I no longer believe that, because in his  case things are changing, for the better?)…?

If we were to do this, scaling in this manner our own abilities, that which happens in school, almost on the first day, when we begin to compare others to ourselves and see ourselves being compared with others, then almost on that very first day the ability gaps between us are visible to teacher and student alike. When this happens, this kind of learning about our own “worth” compared to others, we may at best be only at a loss for words. If we’re lucky we won’t be at the bottom of the scale in anyone of the seven intelligences. But there may be those who are, and if so these might, and probably are in many countries, labelled à la Hillary the “real” deplorables, (except when it’s much too politically incorrect to do so).

I think it’s clear that everyone knows, if not understands, that abilities are not evenly distributed, and in order to go on living with one another, in order not to be constantly envious of one another, even occasionally coming to blows and doing battle, we have to learn to live with and accept our differences. Most of us probably do. For we have no choice than to accept that we are very different, one from another. In my own case I’ve long accepted a number of big disappointments about myself, that for example I’ll never make it to Master level of chess, or teach classes of differential calculus at MIT, and I know that I’ll never have a role to play in a production of the Metropolitan Opera.

It is on this very point that our public schools have by and large failed. Failed because they have tried to hide the differences among their students, not wanting to admit that their students need individual attention, their abilities varying so widely that it makes no sense to pretend they don’t and keep them all together working at the same task or lesson, and while doing so making little or no progress. (That which we call the failure of our schools.)

Even worse the school people have I think, tragically, because of the lives that are hurt by their doing so, made the goal of a four year liberal arts college education the goal of everyone. It can’t be of course but the school people go on acting as if it were, and as a result they go on neglecting the real abilities of the students, pretending that college is within the reach of their real abilities whereas too often it’s not.

Now I would return to the gap between us that needs bridging. For that gap, I believe, results to a large extent from the huge differences in our abilities. The poor white working classes, many of whom did not attend college and while in school were academically challenged to say the least, during the recent election by and large supported Trump. The college educated, the academically gifted, the members of the country’s elite ruling classes by and large supported Clinton. Different abilities may have brought this situation about, but now the differences seem to be differences of class.

I know of only two methods of closing what I will now call the ability and often resulting wealth gap between us. But the redistribution of the country’s wealth, that remedy for wealth inequality, which has been most often tried by governments, and perhaps even ever so slightly diminishing differences of wealth, is not one of them. Differences of ability are still not within the government’s power to modify, let alone change.

One method to bridge the ability gap is and has been for some time, religion. And in fact one religion, Christianity, for example, came upon the inequality scene among men with the principal goal of encouraging men to love one another, paying no attention to any inequalities, differences of ability, wealth, or class, among them. If I were to love say, LeBron and Beyonce, and love was returned, of what importance would then be our differing abilities? None at all.

So I’m not convinced that religion is not the way to go. It may be, but it is not my way. My way is science, which means looking about one with a kind of skeptical curiosity while wanting to know as much as one can about one’s situation, about one’s surroundings, about the people and the things that one (everyone, regardless of ability level) encounters, about where one is on the earth,… all of this being an attitude requiring no particular ability and to some not small extent being within the power of us all.

And this for some is where science and religion come together. Given a population of Christians (or Buddhists, Hindus, Jews, Muslims, Confucians, Sikhs, et al.) and scientists the gap between people would disappear because neither religion nor science would give importance to skin, surface differences, the very differences that ignorance makes so much of.

In the past religion, forgetting the spirit of the book while being taken up by the words,  has too often failed to be true to itself, while so far, anyway, science has not. Both science and religion point us towards the very deepest possible understanding of ourselves, of the meaning of life, and this understanding, within the power of each and everyone of us, doesn’t depend on any one or more, even on greater or lesser amounts of one or more of the seven abilities, as exceptional or extraordinary as these might be, the logical-mathematical ability of a Newton, the musical-rhythmic ability of a Mozart….

A few first thoughts on the meanings of liberal (really liberalism) and conservative.

The present time is, as Francis Fukuyama has argued convincingly, the end of history and the triumph of liberalism. And he might have said, given the triumph of liberalism, really a kind of liberal democracy, that the left/right, liberal/conservative and other such divisions are no longer valid, and that the world is coming together at the center.

Now there are those, perhaps even a majority of the literate citizens of the world, who don’t swear by what I now choose to call the triumvirate of liberalism: free trade, individual liberty, and the Rule of Law. One of those who doesn’t swear, at least about this, is the present Republican candidate for President, Donald Trump. And this, not his insensitive and bullying behavior regarding women, minorities, and just people different from himself, is the main reason I will not vote for him. In fact I’ve already voted and I voted for Hillary Clinton.

Didn’t we love, and in my own case still love the Wild West for the first two tenants of liberalism, free trade and  individual liberty? And it wasn’t just our own attachment. The West in the form of Western films has conquered the world, and in doing so has taught the world, as well as our children, a good part of what we meant and still mean by individual liberty. But also the West has shaped our thinking about free trade, because the Wild West was a lot about trading, about exchanging goods with the native Americans, about the ranchers and fur traders, and eventually the farmers, making mutually beneficial trade agreements among themselves.

What about the third tenant or characteristic of liberalism, the Rule of Law? For a long time the people of the West were without the Rule of Law. And I’ll admit that much of the attraction of the West came from the absence of law,  and also the absence of that bane of modern life, countless regulations. Sure there were the lawmen of the West, the Seth Bullocks, Pat Garretts, John Hughes, Heck Thomases, Bill Tilghmans, Wyatt Earps, Bat Mastersons, to name just a few  that come to my mind from the thousands of these representatives of the first law of the land.

But the lawmen were not enough. As we have seen it would take eventually the Federal government itself to quiet the fears of the more timid members of society, to secure by the Rule of Law  the lives of women and children, as well as to secure and assure while welcoming the tens of thousands of new immigrants who have always come here for the freedom and opportunity to work, with the result that the wealth of the whole country has grown substantially.

It is ironic that the Tea Partiers who would make a claim for their own higher morality are in fact partnering during the current presidential election  with the altRight, those crazies who among other things are monopolizing the talk on talk radio, talk radio being without a moral standing, and without reason and common sense, as well as partnering, although they would deny it, with the bigots, the racists, the climate change deniers, and partnering also , although they would deny this too, with the Republican candidate for President.

It is ironic that all these groups  calling themselves some kind of conservatives (whatever that means) would hold onto their own individual liberties, even if it means allowing one of their own to carry a concealed gun in a University of Texas lecture hall (why, Wyatt Earp himself wouldn’t have permitted that).

But now, instead of being satisfied with their own freedom, instead of marveling at the degree of freedom which we all enjoy in this country, they are convinced (conspiracy theorists all of them, along with their talk radio partners) that they are being pushed to the side, their own freedom, and jobs, threatened by newcomers to the country (immigrant families with children much like their own ancestors), threatened by the trade deals with other countries that have in fact no less enriched the TeaPartiers than all of us, threatened also as they say by the rule of Law,  threatened by the very  government programs intended to help, everyone of course, but in particular those who for whatever reason are unable for short or longer periods of time to help themselves.

These Tea Party conservatives and altRight talk show crazies would be free themselves to do whatever they wanted, while at the same time not allowing the country to help those in need. In their hands the word welfare, a beautiful word in my opinion, has become a dirty word. Also, and whatever else they may be they are not even true conservatives.True conservatives would always be for helping those in need, and in this regard certainly no less than the liberals. In fact we ought to stop using the names, liberal and conservative, at least until we know what we mean by both.

The following passage, from Foreign Affairs of Nov-Dec 2016, I take from a capsule review by G. John Ikenberry of Duncan Bell’s new book, Reordering the World: Essays on Liberalism and Empire. This just one more of a spate of recent articles that have got me thinking about the meaning of liberal, liberalism, and conservatism, all three ideas still very much alive and very much in need of clarification. This blog a first attempt. Others to follow.

The liberal tradition has long had a deeply fraught relationship with imperialism. In the late nineteenth century, British liberals embraced free trade, individual liberty, and the rule of law, while also defending the United Kingdom’s empire. In recent decades, liberal internationalist ideas have found their way into arguments in favor of humanitarian intervention, preemptive war, and campaigns to spread democracy—all of which critics often deride as imperialism in new guises. Bell’s masterful study represents one of the best efforts yet to untangle the many ideological and political knots that bind liberalism and imperialism. In a series of rich intellectual portraits of leading Victorian-era thinkers Bell shows that most British liberals at that time saw empire as a necessary—or even vital—part of the liberal project that “civilized” states were pushing forward. Only much later, after two world wars and long struggles against fascism and communism, did the liberal vision became a more universal secular creed whose ideological and political principles could be reliably seized on by opponents of empire.

Holding onto the Past

Here I am with a blog entitled Holding onto the Past while believing firmly that there is no past, and by that meaning there is no history, there is only the present.

Let me qualify my statement in this way. There is no history in that what has happened can never be summarized, can never be experienced once again in the present, no matter how alive the description may be, say,  of the inbound electric street-car clattering up Summer Street in Boston, crashing a barricade and plunging through an open draw-bridge into the Fort Point Channel, killing 52 riders.  Follow this link to read about the original Boston Globe account (history) of the streetcar accident.

trolley-lede-web-newRight now there is no end to what is happening, for an infinite number of things, mostly things without beginnings and ends, are happening now continuously, and these things can never be summarized in a “history” to everyone’s or probably anyone’s satisfaction.

So in that sense there is no history. In the sense that the events of the present moment are part of an infinite series for which there is no possible summation.

Yet you will say histories are being written. People are making the past come alive. So how do we do that? How do we sum up somehow the Civil War, or the American involvement in Vietnam? We don’t of course. For the reasons given we can’t. Too much happened during those times and no one individual, participant, and especially no historian who probably wasn’t even there at the time, could tell us what happened.

So what can we say about the histories that we do write? Well when we write history here’s what we do. We take usually just one point of view of what happened and to the degree that that point of view does find wide agreement among us, then that point of view or interpretation becomes as it were the history of the war.

And this “history”may remain on the open shelves until it is replaced by someone else’s version, perhaps that of another historian, or perhaps even by a friend or acquaintance, or even by the historian’s wife or children, who will probably have themselves a lot to say about this guy’s, their husband’s or father’s war.

I’m not a nihilist. I don’t believe that history is entirely without meaning or truth. Nor am I writing about Francis Fukuyama’s popular End of History. Rather I’m saying that the definitive history of anything has not yet been written, can’t be written. Yes it’s true, as the prophet says, that we see all things as through a glass darkly.

The closest we’ve ever come to shedding the dark, and to seeing things more clearly has to be in science. There it does seem that the  scientists are getting closer and closer to telling us what may be the definitive and true history of the earth, of life on the earth, of the cosmos.

But the history of peoples, of nations, of civilizations, of the United States and of Europe, those histories while being written have not yet been written to everyone’s satisfaction. These histories are mostly without truth, and forever changing as we look at them as we must through different eyes and eye glasses.

So what is it that I could possibly mean by the headline, Holding on to the Past? cropped-ruins.jpgWell it doesn’t mean writing history. In fact in that regard I wouldn’t know where to begin. For at my birth everything else was already there, and the beginning of all that, was what?

My headline means rather taking things from the present and holding on to them tightly, because they and everything else that happens in the present are immediately past, and if we would not lose them entirely we have to somehow hold onto them.

In my own case I hold onto my ideas by posting them onto my blog. With the use of thousands of words and pictures, and more and more, with their videos, the NYTimes is holding onto a small but real part of the present, and is  a kind of yes partial record of our passage through the world.

Perhaps at their very best histories are records of the present now past, and the best histories are the best of these records.

But to repeat the very best records are never more than a very tiny part of all that is happening about us all the time. And man since he began writing histories, some tens of thousands of years ago, is to that extent, more at some times than others, say in ancient Greece and Rome, say in Renaissance Europe, holding onto the past.

Liberté, Égalité, et Fraternité