A Better Approach Than Bail

 I wrote an article on Bail Reform which was printed in the KC Star on February 3, 2022.  Here is the link: https://www.kansascity.com/opinion/readers-opinion/guest-commentary/article257747983.html

 Briefly, my argument was:

Goals for pre-trial management of individuals accused of crimes:

1        1,.     Assure they appear for trial.
2.      Avoid additional crimes prior to trial.
3.      Minimize disruption to their lives, their family’s lives, their fellow employees’ lives and their employer, particularly for the innocent.
4.      Minimize public cost

Bail addresses the first, third and fourth goals.  Denial of bail addresses the second goal.

It is clearly harder for less-affluent people to post bail, thus increasing the number of people in jail.

Loosening bail requirements has increased crime.

Electronic monitoring addresses each of the four goals.  State-of-the-art monitors are harder to remove and can send alerts if tampering occurs.  Denial of bail might be  used less frequently.

1.      1. They are more likely to appear in court and we can find easily if they don’t.

2.      2. If they commit a crime, police could prove they were at the scene and apprehend them easily.

3.      3. They can continue to support their families, co-workers, etc.

4.      4. Monitoring costs less than incarceration and should be borne by the government.

In the article, I listed some principles that we should keep in mind.

Critics say people wearing monitors suffer job loss and embarrassment.  Such repercussions pale compared to being in jail and can be reduced with improved technology and procedures.  I also addressed other criticisms, such as by calling on the government to pay for monitoring.  Some criticisms related to discontinued practices or were supported by small studies contradicted by larger studies or studies with inferior methodology.

The issues surrounding use of electronic monitoring for parole seem to be similar, albeit not identical, to using electronic monitoring for people awaiting trial.

The Exaggeration of Inequality in the USA

See: https://www.wsj.com/articles/the-myth-of-american-inequality-review-believe-your-eyes-not-the-statistics-11672095284?st=h84kx5s9i06ripe&reflink=desktopwebshare_permalink

I have always been a “high tax” guy.  But I have also objected to the common and widespread deceptions regarding tax rates and income equality, advanced by the political left with the eager support of mainstream media. 

This article does a good job of quantifying the ridiculous practice of comparing pre-tax earned income and ignoring the value of transfer payments.  We do the transfer payments to help others, then leftists totally ignore the benefits by looking only at earned income.  Consider the math:

• If everyone paid $1 more in taxes and the money went to the poorest families, the leftists’ methodology would label that “obscene” because it is a regressive tax.  In their math, it doesn't matter where the money goes.
• Assume half the people earn $100,000 and the other half earn nothing.  So, the government taxes the earners 50% and gives that $50,000 to those who earned nothing.  Does that solve the problem?  Not a bit according to leftist math.  

Reducing inequality in earned income is a good goal (as long as merit is adequately rewarded), but that requires encouraging, not discouraging, productive work.  Fundamentally, the more socialistic a country becomes, the flatter the tax burden should be.  Leftists don’t want to be “put out of business” by acknowledging even partial success, so their math must support a conclusion that their goals are never met. 

The authors observe that we have reached a point where poor people don’t have to work, undermining the satisfaction of middle-class or lower-middle-class people who work hard but find that they have little advantage over people who choose not to work.

The poor in the USA and in the world have hugely better lives than in the past.  But it is fashionable to criticize Norman Borlaug, the father of the green revolution in farming.

Public Education is the best way to narrow income gaps, but during the entire history of the “War on Poverty”, the teachers’ unions have foisted a poor public education system on the poor.  People exaggerate systemic bias in police departments and other elements of our society while turning a blind eye toward our most systemically biased institution --- public education.  We lack academic standards for graduation and discipline in schools, and we denigrate merit.

The authors say we should trust our eyes.  I’m not sure our eyes will tell us that only 1.1% of people in the USA are living in poverty, as they claim.  But, even if that statistic were to be inaccurate or misleading, would more transfer payments help people living on the street because of drug and mental problems?  We used to house such people in institutions, but that support was discontinued because it impinged on their freedom.

The distortion goes way beyond what these authors cite.  There are significant amounts of hidden taxes throughout our society.  More affluent people pay unnecessarily high college tuition rates, high nursing home costs, motor vehicle costs, and hospital fees because of cost-shifting to subsidize government programs.  Their higher costs for Medicare Part B are also ignored.  Businesses are required to incur cost to implement government programs, another hidden subsidy.

The analyses also ignore contributions to charity. 

Beyond the school system, our huge out-of-control government spending is a tremendous threat for the poor.  When the economy collapses, the poor are likely to bear the brunt.  Those of us who are affluent may have options to avoid personal disaster.  Analyses of national debt are also duplicitous.  They ignore public program debts (Social Security, Medicare, etc.).  

Budget hawks who challenge these misleading reports still sadly understate the problem.  They accept government reports regarding these public program debts, reports which ignore the huge unfunded liabilities that result from 75-year cliff funding.  (The analyses assume that the programs will disappear in 75 years and, at that time, renege on all the promises they have made.)

I believe a rising tide can lift all ships, although I’m not convinced that the tide will do so enough to satisfy my preferences.  We need to build an education system and culture that encourage productive work.  I must note that, much as I detest Donald Trump, his administration improve dliving standards for minorities living in the USA and, unlike recent Democratic administrations, reduced the income gap.

 

Nusrat Choudhury Should NOT be Confirmed As a Federal Judge

This year, President Biden nominated Nusrat Choudhury to be a federal judge for the Eastern District of New York.  In her Senate hearing, Ms. Choudhury repeatedly clearly indicated that it does not matter if people lie when they are speaking as “an advocate”.¹  She made clear that this is her standard for herself as well as for others.

This is perhaps the most shocking statement I’ve heard from a nominee.  Such a nominee should be promptly replaced with someone else. 

Yet the Democrats on the Senate Judiciary Committee are proposing that the full Senate approve her candidacy.  If you’d like to comment to members of the Committee, here is the list of the Democrats on the Committee:

Richard Durbin, IL                            Richard Blumenthal, CT

Patrick Leahy, VT                             Mazie Hirono, HI

Dianne Feinstein, CA                        Cory Booker, NJ

Sheldon Whitehouse, RI                   Alex Padilla, CA

Amy Klobuchar, MN                        John Ossoff, GA

Christopher Coons, DE

Her supporters are tarring Republicans for challenging her candidacy and trying to distract from the statements she clearly made.

Even if she did not make the original statement that she was questioned about (although it seems likely that she did or would²), even if that original statement was true (clearly not³), what really matters is that her standard for herself and other advocates is that lying is OK in support of their cause.   

Senator Kennedy of LA confronted her relative to material she submitted to the Senate Judiciary Committee as part of her nomination process.  He asked about a statement she reportedly made (according to the papers she submitted) while on a panel Princeton University.  Kennedy asked: “You said that the killing of unarmed black men by police happens every day in America. Did you say that?”  Repeatedly, Ms. Choudhury responded “I said it in my role as an advocate”.²  She further indicated that she was engaged in “rhetorical advocacy”, in other words that she was trying to persuade people more so than be accurate.  These comments cannot be explained away as verbal errors, being caught off guard, misconstrued, etc.  She made herself very clear.

Inaccurate statements by “advocates” and media have a huge negative impact on society.  In this particular case, people routinely greatly overstate the likelihood that an unarmed black will be killed by police.⁴  Such misunderstanding exacerbates our problems.  We need to tone down the damaging rhetoric.  Obviously, people who spread such inaccurate rhetoric should be held accountable. 

Hopefully Ms. Choudhury has a bright future ahead of her, but even in her subsequent letter, she did not retract her comments excusing lying by advocates.  If we want people to trust the judiciary, we must not elevate a candidate who condones lying, especially publicly. 

Certainly, the Democrats can find another qualified candidate to replace her.  Then Ms. Choudhury and others may learn from her mistake and embrace honest advocacy in the future.  That would be an excellent result.  But why should people value honesty if they are rewarded despite advocating dishonesty?

Claude

Footnotes:

¹ Watch her testimony and read it at https://www.nationalreview.com/corner/watch-judicial-nominee-nusrat-choudhury-self-destruct-under-questioning-by-senator-john-kennedy/.

 

² Initially, she said “I don’t recall the statement but it is something I may have said in that context.”

Subsequently, she acknowledged 3 times that “I said it in my role as an advocate.”

Later she wrote a letter saying the statement is not true and that she had not made that statement.  In that letter (https://www.judiciary.senate.gov/imo/media/doc/QFR%20Responses%20-%20Choudhury%20-%202022-04-27.pdf), she wrote:

“I did not make this statement. I strongly disavow this statement, and I regret not disavowing this statement during my hearing. And to be clear, the statement is not true.”  (CT: Unfortunately, this statement comes from a person who has clearly stated that she believes in lying when done in an advocacy role.  It is reasonable to distrust this statement.)

“There is no record that I made this statement, and I did not do so.” (CT: Same problem, plus she later references that there is a record, albeit possibly incorrect.  This was a carefully constructed letter.  Why would it have such an inconsistency?)

“The only record of my remarks at the 2015 event are tweets posted by people I do not know. The tweet that appears to be the basis for misattributing this statement to me is anonymous, inaccurate, and does not capture the full context of the discussion.”  (CT: It may well be true that the tweet, no longer available on the internet, was misleading.  However, according to Senator Grassley, the tweet was sent out by the organization that hosted the event at which she spoke and that she continued to be in contact with that organization.   Source: https://fingfx.thomsonreuters.com/gfx/legaldocs/klvykoqdwvg/grassley_et_al.ltodurbinchoudhuryhearing.pdf0.  It is not comforting that she characterizes this organization as “people I do not know”.   It sounds like President Trump, who “never knew” people when it is no longer convenient for him to have known them.)

To be fair, I think I saw a suggestion that she was referring to confrontations occurring between black people and policemen “every day”.  That certainly would be accurate, but I couldn’t find that again as I was writing this.

 

³ As noted in footnote #2, Ms. Choudhury herself now says that the statement is false.  I searched for information about how many unarmed black males are killed by the police in the USA each year.  Note that some of the following statistics include a few women; more importantly some are incomplete.  The sources quoted below conclude that the number of unarmed black males killed by the police ranges from 1 every 4 days to 1 every 4 weeks.  That’s a big problem but dramatically different from Ms. Choudhury’s claim.  On the other hand, a couple of the sources suggest that police kill two black people every 3 days.  Few of those are women and while a good number may be armed, that data suggests more black deaths than the previously cited data.  If about 60% of those killed were armed, the data that does not differentiate between armed and unarmed would be consistent with the “1 every 4 weeks” data point.

1.      Since 2015, police officers have fatally shot at least 135 unarmed Black men and women nationwide, an NPR investigation has found. CT note: that’s nearly 23 per year but includes a few black women.  Cases of police brutality against black people are overestimated (nypost.com)

2.      The number in 2019 was 27, according to a Skeptic Research survey reported at Cases of police brutality against black people are overestimated (nypost.com).

3.      That Skeptic Survey however includes the following wording “The available data on police shootings of unarmed Black men is incomplete; however, existing data indicate that somewhere between 13-27 unarmed black men were killed by police in 2019. Adjusted for the number of law enforcement agencies that have yet to provide data, this number may be higher, perhaps between 60-100.”  CT note: that expanded projection suggests approximately one in every 4 days.  Source: How Informed are Americans about Race and Policing? (CUPES-007) (skeptic.com)

4.      Another source indicates that over a 7-year period, fewer than 50 unarmed blacks were killed on average by police each year.

5.      The Washington Post claims to have a complete data base and reports that about 270 blacks are killed by police each year, but that includes armed as well as unarmed people.  https://www.washingtonpost.com/graphics/investigations/police-shootings-database/?itid=lk_interstitial_manual_10

6.      Likewise, Newsweek reports 203 in 2021, including armed and unarmed people of both genders.  Full List of Black People Killed By Police in 2021 (newsweek.com)

⁴Inaccurate statements by such “advocates” and media have a huge negative impact on society.  People routinely greatly overstate the likelihood that an unarmed black will be killed by police.

1.      “In a survey conducted by Manhattan Institute colleague Eric Kaufmann, for example, eight in 10 African-Americans and about half of white Biden voters said that they thought that young black men were more likely to be shot to death by police than to die in a car accident—one of the largest mortality risks to the young and healthy.” Source: https://www.nationalreview.com/corner/watch-judicial-nominee-nusrat-choudhury-self-destruct-under-questioning-by-senator-john-kennedy/

2.      The aforementioned Skeptic Research Survey found that “over half (53.5%) of those reporting “very liberal” political views estimated that 1,000 or more unarmed Black men were killed”.  Furthermore, “The available data suggest that 24.9% of people killed by police in 2019 were Black. However, across the political spectrum, survey participants overestimated this number. Those who reported being “liberal” or “very liberal” were particularly inaccurate, estimating the proportion to be 56% and 60%, respectively.”

 

Other source:

https://www.reuters.com/legal/government/republicans-bid-unusual-2nd-hearing-biden-judicial-pick-rejected-2022-05-24/

Abortion (and the Supreme Court Dobbs Decision)

Today, I have posted separate blogs regarding the Supreme Court nomination process, the 2022 religion-related Supreme Court decisions, the Supreme Court’s West Virginia v EPA decision and the NY Pistol & Rifle Association case.  Also relative to the January 6^th Committee hearings and why I oppose appointing Nusrat Choudhury as a District Judge.  I also intend to add a paragraph to my blog regarding Ukraine.

I have been unwaveringly¹ pro-choice since I first became aware of the issue.  However, I also believe that life begins at conception.  Therefore, I acknowledge that abortion is murder.

The most difficult ethical questions occur when various principles are in conflict.  I believe in parental authority and responsibility and that humans should be able to control their body.  I also believe murder is generally² a crime.

In this case, I resolve my competing ethical standards by believing that fetuses do not have rights.  (I was pleased to learn that the justices in Roe v. Wade, Casey and Dobbs all refrain from assigning rights to fetuses.  I had not realized that my personal position in that regard was so broadly held.)

Because I recognize abortion as murder, I routinely describe it as our most difficult political issue to resolve.  It is understandable that pro-life people would find it extremely difficult to accept murder.  Because I respect their position, I have been able to have respectful discussions with pro-lifers.

Roe v. Wade did not support my view.  From my perspective, parents had the right to commit infanticide if their baby was born with handicaps that caused the parents to feel that they could not cope with those problems, that their baby would not have a good life, that the birth would have significant detrimental impact on siblings and possibly other reasons.³  Yes, I’m one of the more extreme pro-choice people that pro-lifers sometimes highlight.

Forcing the woman/family to continue the pregnancy commandeers the woman’s body for the rest of the pregnancy.  It also requires the family to raise that child for a couple of decades or more.  We don’t have a large capacity of waiting adoptive parents.  (To the degree that we had waiting adoptive parents, we could reduce the problem by creating an economic incentive to continue the pregnancy.  Side note: I’ve always thought that a woman should make the final decision about her pregnancy, but that she should discuss it with the father, if it was the result of consensual intercourse.  Perhaps the father could persuade the mother to keep the child or maybe that he would be capable and willing to raise the child with the mother being able to be involved as little as she desires.)

Because people can have strongly-justified substantially different stances relative to abortion, I believe that their positions should be treated like religious beliefs.  Neither side should impose their beliefs on the other side.

Although Roe v. Wade did not endorse my personal position, I accepted it as a compromise.  However, until now I had not read Roe v. Wade.  Over the years, I’ve wondered if Roe v. Wade was a sound constitutional decision.  It has also been clear that some pro-choice scholars did not think Roe v. Wade was justified.  With my recent reading, I’ve learned that some of the pro-choice scholars who questioned Roe v. Wade felt that permitting abortions could be justified under the Constitution in other fashions than relying on the 14^th Amendment due process clause.

How would I have voted on Dobbs v. Jackson Women's Health Organization if I were a Supreme Court judge in that case? 

Initially I did not expect to reach a firm decision because I am not a legal scholar, I did not hear the court proceedings and I was not involved in the court discussions.  Without such involvement, it is questionable whether someone can reach an accurate conclusion.

I expected to respect the Supreme Court’s Dobbs decision because I recognize that laws and the Constitution don’t necessarily support my preferences and because I’d always wondered about the soundness of Roe v Wade.

However, I have concluded that I am NOT supportive of the Supreme Court’s decision in Dobbs.  As explained below, I think they misinterpreted the Constitution and, despite criticizing Roe v Wade and Casey for leaving a lot of questions open, they created a new rule that will result in repeated litigation.

I believe I would have encouraged “stare decisis” or at least requiring state laws to protect some circumstances for abortion (rape, incest, health of the mother, health of the fetus, at least a reasonable period of time after becoming aware of pregnancy) and the right to travel to another state for an abortion.  Roe v. Wade and Casey definitely have some problems, but Dobbs seems too vague and permissive toward state governments.  (Per Dobbs, “A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319 (1993). It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”)

The framers of our constitution were reluctant to attach a Bill of Rights to the Constitution because they feared that enumerating some rights would imply that others don’t exist.  To try to protect against such an interpretation, they included the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  Indeed, Roe v Wade notes that the District Court cited the 9^th amendment in rejecting the TX law that was the basis of Roe v. Wade.

The framers wanted to protect the citizenry from unreasonable searches and seizures.  From my perspective, banning abortion is an unreasonable intrusion (or seizure) of the woman’s body.

Roe v Wade documents that early laws related to abortion were focused on the mother’s health⁴, but I was surprised and educated by the Dobbs majority’s recitation of significant evidence that common law before the Constitution and state laws prior to the latter half of the 20^th century either totally banned abortion or banned abortion prior to “quickening” (when the fetus’s movement could be easily ascertained).

The dissent in Dobbs counters that the principles the framers espoused protect abortion (as per my intrusion comment above) but that legislatures, judges and others in the first 150 years of our republic did not recognize the applicability of those principles to abortion because laws were not reviewed with women in mind and women were not among the legislators or judges.  I find this persuasive, as the framers were clearly concerned about seizure, etc.

As with other medical procedures, I believe the State has a compelling reason to assure that abortions are done in a safe fashion.  But I do not believe that the State has a sufficient interest in the life of the unborn to outweigh the mother’s rights.

From my perspective, the Roe v. Wade decision included a fundamental problem for pro-choice advocates.  Roe made abortion legal prior to fetus viability outside the mother’s womb.  Technology has been allowing babies to be viable sooner (at the time of Roe, viability was generally accepted after 28 weeks, but the parties in Dobbs considered viability to start at 23 or 24 weeks.)  It seems clear that the time to viability will get even shorter and what if the baby could be transferred to another (human or artificial) womb? 

Changes in technology also erode my “infanticide” position.  To the degree that a pregnant woman becomes aware of fetus impairments earlier during her pregnancy, there is less justification for late-term or post-birth terminations.

Changes in technology have made conception easier to avoid, which also should reduce the problem.  While it is wonderful that the frequency of the problem may be reduced, the significance for the individual who is faced with an unwanted pregnancy remains.

The Dobbs decision says that laws regarding abortion apply at the state level.  I did not see discussion of why Congress would not be able to pass a law regarding abortion.  State-level decisions have some appealing results:

1.      Each side will have jurisdictions that support their view.  Pro-choice states can create what they consider to be a superior standard to the long-term weakening standard that Roe settled on.

2.      If people are in a state that bans their circumstances for wanting an abortion, they can go to a state that supports those circumstances.

a.      I’ve always felt that it had to be unconstitutional for states to forbid citizens to travel out of state for any reason (unless incarcerated, etc.).  Recently, I heard an NPR report in which a lady attorney commented that there is legal precedence for such a decision.  Yikes!  I’d like to fight such provisions and I would beseech legislators not to adopt such a provision.  Even if it is legal, I think it is abhorrent.

b.      Charities would likely fund the cost of travel, etc. for people who needed such help.

3.      Abortion is more likely to be a dominant campaign issue at the state level than at the national level.  So, the voting public is more likely to be successful in electing state legislators who reflect their position.

4.      One of the concerns of Progressives is that the Senate is dominated by rural, Republican states.  If this is a state issue, that concern becomes irrelevant.

5.      The European Union is an interesting comparison, albeit imperfect because the European countries are more independent than are our states.  It is my understanding that the abortion issue has been satisfactorily settled by allowing each country to make its decision and to allow citizens of any country to travel to another for an abortion.

Despite those positives, there are many concerns of course.

My first concern, of course, is the impact of women seeking abortions.  Even if I am willing to compromise, as with Roe v. Wade, Dobbs leaves insufficient guideposts related to state abortion laws as noted above.  Could a woman be fired from her job because of getting an abortion?

Secondly, the majority in Dobbs criticizes Roe v Wade and Casey for not succeeding in settling the law, but they have assured that case after case will be tried to determine whether a state legislature had a rational basis on which to think a particular abortion law would serve legitimate state interests.

A third concern is that other laws may also be impacted by this decision.

A fourth concern is that court decisions (at various levels) may be re-visited.

A fifth concern is that Supreme Court nominees may have lied in their Senatorial hearings.  At the time of Justice Kavanaugh’s appointment, I thought he would be an excellent Supreme Court judge, but I concluded at the end that I would have voted against him because I felt that he lied to the Senate about his substance use while in high school.  (Note: I did not update my Kavanaugh blog at that time, although I hinted at this position in my 2018 holiday greeting.)

We have not heard Mr. Kavanaugh’s side of the story.  As noted above, judges should not have pre-determined positions.  They should listen to the facts and arguments in the case and learn from their peers’ commentary and other Constitutional insights they may have picked up while being a member of the Supreme Court.  Maybe he changed his position; maybe there is another explanation.  How can I judge his vote in the absence of such information?

 

Notes:

¹Being unwavering is not necessarily a virtue.  We should be willing to reconsider our opinions.  As noted herein, my opinions on abortion have changed a bit.  I refer to myself as unwavering to expose the strength of my conviction.

²Murder is acceptable in self-defense or protecting others, including in war, or combatting terrorism or crime.  I also support the death penalty, but that is not germane to the point of this article.  I’m NOT saying that all murders in war or policing are valid, but sadly some are.

³Roe v Wade noted some of these potential family problems as follows:

“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”

⁴Quotes from Roe v Wade:

“The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.⁴⁸”

⁴⁸ See, e. g.. State v. Murphy, 27 N. J. L. 112, 114 (1858).

“throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today”

“organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.^58”

The January 6th Hearings

I sometimes think we have too many hearings and investigations.  Clearly, however, the January 6^th events required thorough investigation.  If it was not a serious threat to our country, we needed to know that for sure.  If it was a serious threat, we obviously needed to identify how to avoid a repetition.

The first day of the January 6^th hearings clearly proved that the January 6^th storming of the Capitol was an insurrection intended to thwart the peaceful turn-over of power.

Although I am inclined to think Rep. Pelosi inappropriately rejected potential committee members, thereby undermining the credibility of the hearings, the evidence speaks for itself.  I don’t see how anyone can question the nature of the attack on the Capitol.

Some critics claim that the January 6^th hearings are a partisan production intended to influence future elections.  My primary response to that is that a critical attack on our country occurred on January 6^th.  So, of course, future voters should consider political candidates’ actions in contributing to that attack or defending against it and in underplaying the attack subsequently or helping to identify the causes.

Although January 6^th is relevant to voting decisions, a government panel should avoid appearing partisan.  Rep. Pelosi chose not to take a non-partisan approach.  I’m not expert on the laws or precedents, nor about how the committee’s work might have been affected if some of President Trump’s supporters had been on the committee.  I doubt that I would have taken Rep. Pelosi’s approach, but I can’t be sure.   But I bemoan the impression of partisanship that resulted.

On the second day, there was lots of proof that President Trump lied.  No surprise there.  For 40 years, I’ve been surprised that anybody trusts what Donald Trump says.  As I’ve written, I don’t know if he even understands the difference between truth and falsehood. 

Trump, of course, likes to paint his Republican opponents as RINO (Republican in Name Only), but he is unquestionably, in my opinion, the most prominent RINO.  He has no loyalty to any organization, person or ideology, solely pursuing his personal advantage. 

Listening to the second day of the January 6^th hearings, I had to keep reminding myself that this is part of a larger fabric that is being presented, as I was distracted by the incongruity of emphasizing Trump’s lies in a society in which people turn a blind eye when politicians they support lie.¹

The reporting on the second day would have been better had it continually tied Trump’s lies to the serious issues about which he was lying.

On the third day, I thought Greg Jacob was a particularly impressive witness. 

John Eastman’s theory was that there were contested slates, so Pence could refuse to recognize them or could send them back to the states to re-certify.  Pence clearly acted appropriately.  There was no basis for failing to recognize the states’ certified election results and clearly the founders would not have wanted the VP to have the power Trump was claiming Pence had.

Weak as the actual theory was, it relied on their being “contested” slates.  I was disappointed that the presentation kept trying to suggest that the theory was that the VP could decide to pick whatever candidate he wanted as president.  This extreme slant was very disappointing.  Care should be taken to avoid the look of partisanship. This dripped of partisanship.

The Committee and witnesses properly stressed Pence’s courage in maintaining his principles and in refusing to leave the Capitol when his security detail urged him to do so.

I was reminded how dismissive some of my leftist friends and mainstream media have been of Mike Pence.  I’ve maintained that I respect him. 

Some people who served in Trump’s cabinet did so to try to protect our country, but at great angst and damage to their reputation.  I recognized that and considered them to be true patriots.  “Woke” extremists, convinced of their personal virtue and the despicable nature of people who disagree with them, could not see that.  Then, when an anonymous article was written to the NY Times, they were astounded.  How blind are they?

Clearly there was insufficient fraud in the 2020 election to make a difference.  Nonetheless, we are vulnerable to fraud in our elections (as I have blogged about previously) and it behooves us to take steps to protect the integrity of our elections.

On day 4 of the hearings, Cassidy Hutchinson spoke.  Her testimony was impressive despite including a lot of “hearsay”.

An area of poor reporting on day 4 was the media’s reaction to her testimony that President Trump wanted to go to the Capitol and tried to resist when his security detail insisted on going to the White House.  They kept criticizing Trump for wanting to overrule his security detail.

They were correct to criticize him, but they generally left off the key element – the reason why he wanted to go to the Capitol.  He wanted to go there to support and enjoy the event.  It was his reason for wanting to go there that was wrong, not the fact that he tried to overrule his security team.

Trump supporters likely observed the media’s apparent inconsistency from their perspective: one day they praise VP Mike Pence for overruling his security team and the next day they criticize President Trump for the same type of action.

Do not misunderstand, I agree that VP Pence was heroic, and that President Trump’s behavior was unacceptable.  My only point is that it is important to keep the focus on the motivation.

On day 5, we learned more about President Trump’s efforts to pressure politicians and government employees to do his bidding to support false claims of election fraud and also pressuring potential witnesses to be “loyal” to him rather than to their oath.  Sadly, it was not surprising to see the numerous circumstances of such serious misbehavior.  It is President Trump’s modus operandi.

--- Claude 

¹As much as Trump lies, Democrats and the mainstream media have exaggerated the frequency of his lies.  I pleaded for Trump opponents to avoid such a practice and Ms. Obama said “When they go low, we go high.”  Bur that has not been the case.  Lies about President Trump have driven more people to his support and tied them to him more strongly.

President Obama was proven to have made several significant lies repeatedly.  He was a much more skillful liar than President Trump.  President Biden has also lied repeatedly.  Neither lies as frequently as President Trump, but their lies are significant and should not be tolerated by their supporters.

This year, President Biden nominated Nusrat Choudhury to be a district judge.  In her Senate hearings, she repeatedly took the position that it is OK to lie while acting as an advocate.  Yet the Democrats are still trying to push her nomination through.  See my separate blog on this topic.

 

Selecting Judges for The Supreme Court

 I wrote a blog on this two years ago.  I've updated it because it is such an important topic.

My position on selecting judges for the Supreme Court is as follows:

1.      It is the President’s responsibility and prerogative to appoint a candidate.

2.      The Senate’s role is to confirm.  I think that means to approve the candidate unless there are strong non-partisan reasons to deny confirmation.

3.      Judges should be selected based on their ability to analyze difficult issues reflecting conflicting principles and to come to a well-defined position which they can articulate and justify well.  They should have demonstrated integrity and ethical, as well as professional, standards

4.      It is important to have diversity on the Supreme Court as elsewhere.  The most important aspect regarding diversity is how an individual’s mind works.  Such diversity is related to age, ethnicity/culture, gender, experience, etc.  It shouldn’t be tied to race, but race adds diversity because of our frailties as humans.

5.      Since becoming conscious of Supreme Court nominees’ Senatorial hearings about 60 years ago, I have felt that it is inappropriate for Senators to ask nominees “litmus test” questions.  Asking litmus test questions is an effort to usurp the President’s prerogative and trying to pin nominees down is unfair to them because it tries to paint them into a corner on a future case relative to which they should be open-minded.  Justices should listen to the facts and arguments in each specific case and learn subtle Constitutional insights from their peers’ commentary and discussions while being a member of the Supreme Court, any of which might cause their decision to differ from what they, or watchers, might have expected their position to be.  This problem has intensified because people have tried to turn the Supreme Court into a legislative body and to impose their preferred legislation through the courts (and the court nomination process) rather than the legislature. 

6.      With our increasing life span, it would make sense to stagger judicial appointments with the intent of having 20-year terms and approximately the same number of openings appointment opportunities each Presidential term.  Clearly, Progressives would want to apply such a rule retroactively, while Conservatives would press for it to be prospective, if at all.  Perhaps a compromise could be found.  For example, if the change were to take effect at the time of the next Supreme Court opening and the current judges’ term expirations were in the order in which they were appointed, current justices would be able to sit on the Supreme Court more than 20 years.

I am not a Supreme Court historian, but my impression was that Supreme Court nominations worked effectively and appropriately until Robert Bork in 1987.  At the time, I was not a fan of Bork.  I disagreed with his action in the Saturday Night Massacre.  But he seemed clearly to have a bright, discerning mind, to judge on principle, and to explain his positions clearly.  He seemed eminently qualified.  The campaign against him appeared to be blatantly partisan.  Although I definitely leaned Democratic politically at the time, I was upset at the Democratic attack on Bork.

Since then, character assassination has become an increasing ploy by the opposition party during Supreme Court nominations.

Another ploy arose during the Bush administration.  Democrats filibustered numerous judge appointments below the Supreme Court level.

Republicans copied that maneuver during President Obama’s administration, until the Democrats under Harry Reid suddenly suspended filibuster rights for appellate nominees in 2013, breaking at least a 40-year tradition.  Mitch McConnell predicted that the Democrats would regret having done this.

Based on Reid’s action, McConnell led the Republicans in removing the filibuster from Supreme Court nominations in 2017.

Then the Republicans blocked Merrick Garland.  I strongly opposed their action and still do.  I heard two arguments to justify it:

·        #1: When the President and majority of the Senate are of the same party, the voters have voted for a consistent view of qualified Supreme Court justices, but when the President and Senate are of different parties, the people have not voted clearly.  Thus, in the latter situation, it is appropriate for the Senate to defer voting on a Supreme Court judge until the next administration.  I STRONGLY disagree with this theory because:

o   I believe the Senate’s role is confirmation, not selection.

o   I don’t believe the Supreme Court influenced the elections of any of the Senators at that time.  People have rarely voted for Senators with Supreme Court judges in mind.  To the degree that has happened, it has only been due to the politicization of the process, which I hope turns out to be a temporary phenomenon.  (The first time I am aware of Supreme Court nominations possibly affecting Senatorial races is when the Democrats threatened to stack the court in 2020.  In that case, some people voting for Democratic Senate candidates were voting for a particular type of nominee, but people voting for Republican candidates were simply rejecting efforts to undermine our government’s separation of powers.  However, it appears that the Supreme Court’s Dobbs decision may affect the 2022 Congressional elections.)

o   There are many other issues in Presidential elections as well.  I don’t think many people voted for President Obama based on likely Supreme Court nominations.  However, both Donald Trump and Hillary Clinton made Supreme Court nominations an issue in 2016 and Joe Biden (by not denouncing packing the court) made it an issue in 2020.

·        #2: If we have the votes, we can do what we want.  I don’t agree with that stance.

I sympathized with the Democrats’ bitterness relative to Garland.  I would have liked them to call a truce.  As they had initiated most of the past Supreme Court abuses, they would have been in a good position to do so.  They, of course, chose not to do so.

In 2016, candidate Trump identified a list of seemingly highly-qualified potential judges.  The Democrats responded with a wanton attack on the Federalist Society.  The Society leans strongly conservative.  As part of those principles, they promote free speech and favor strong debate on issues.  Their opponents seem less willing to defend their ideas than are the Federalists.  In contrast, few Democrats are concerned by the discouragement of free speech and biased leftist education on most college campuses.

On the Democratic side, candidate Hillary Clinton did not identify potential judges but rather publicly identified a litmus test that she would apply to any candidates for the Supreme Court, in particularly overturning Heller.

While his opponents claim that President Trump has stacked the court, I believe Trump improved the balance of the court.  (Although I’d prefer a 5-4 conservative majority as Merrick Garland should be on the court.)  An indicator of whether a court is stacked is whether judges vote uniformly.  The “liberal” judges vote as a bloc than do conservative judges.  In my opinion, the Democrats stacked the Supreme Court earlier.

Some of my liberal friends would likely argue that the reason the conservatives don’t vote as a bloc is because sometimes the “rightness” of the liberals is so overwhelming that one or another conservative must vote his/her conscience.  That perspective is mired in the myopic presumption that conservatives are generally not voting their conscience.

Liberal judges believe in a “living Constitution” and are more willing to find creative ways to twist the Constitution to support what they think are the right decisions.  Because they have relatively more interest in the result than in the legal argument, they are more willing to buy into each other’s justifications for their decisions.  To them, the end justifies the means.

The conservative judges are more likely “strict Constructionists” but not entirely uniform in their interpretations, particularly when it comes to prioritizing competing principles.  I applauded when Judge Gorsuch stated that a good judge won’t like all of his/her decisions because the law may not support his/her personal preferences.  It is partly (but not necessarily entirely) because of their different philosophical beliefs that they don’t vote as a bloc.  This diversity is good for the court.  We should be happy when different perspectives are voiced and considered collegially, then resolved in a vote.

Most Democrats want to eliminate all filibusters now.  I think that is a dangerous step.  It seems as though we’re careening through a series of “wrongs” in reaction to previous “wrongs” rather than gravitating back to what might be proper.

Several Democrats have advocated stacking the Supreme Court by expanding it radically.   It is of great concern to me that so many “the ends justify the means” people in our society support such radically inappropriate agendas. I could be comfortable with making a change to move the balance to what it would have been if Merrick Garland had been approved if it could be accomplished as part of a bipartisan truce.

Supreme Court nomination arguments, impeachment arguments, recusal demands and so many other political arguments reek with hypocrisy on both sides of the article as politicians and their followers take 180˚ different positions depending on whether a Democrat or Republican is involved.

As the Republicans misbehaved with Garland, I was hoping that the Ruth Bader Ginsberg vacancy would unfold as follows:

1.      President Trump makes a nomination.  That is his responsibility.

2.      It comes to the Senate.

3.      A number of Republicans in the Senate vote to defer as a sign of good faith to try to end the politicization of Supreme Court nominees.  I figured that Susan Collins, Lisa Murkowski and Mitt Romney might take such a stance.

An unintended (and not well reported) aspect of the January 6^th committee was that it exposed the Democrats’ malicious character assassination of the Trump Supreme Court nominees.  Democratic leaders continually insisted that Trump was stacking the court with justices who would support whatever he wanted to do.  Those charges were blatantly ridiculous as the nominees had strong records supporting separation of powers and were strict constructionists.  Nonetheless, a lot of people believed the false accusations.

During the January 6^th years, we learned the Greg Jacob (attorney for Mike Pence) and John Eastman (attorney for Donald Trump) discussed what would happen if Mike Pence acted in the fashion that President Trump demanded and the case went to the Supreme Court.  They agreed that the Supreme Court would rule 9-0 against Trump, in sharp contrast to the Democratic leaders’ statements during the nomination processes.

Supreme Court Religious Decisions (Coach Kennedy; Maine school stipend)

 If I favor Supreme Court decisions protecting freedom of religion, I think my opinion is noteworthy because I am agnostic.  Clearly, I am not taking a stance that will work to my personal benefit.  It seems clear that I am evaluating based on principle.

I acknowledge that some members of my family have strong religious beliefs and that some attend religious schools, but none are in situations that would be affected by these rulings.

Kennedy v. Bremerton School District

The facts of the case are clear and agreed to, by all parties. 

1.      Coach Kennedy continued some unconstitutional practices that had been going on before he arrived at the school, and he added some unconstitutional practices of his own.  After many years without incident, the school district insisted that he stop such actions and he complied.  The case is NOT about that activity.

2.      Coach Kennedy subsequently took 30 seconds to pray silently at mid-field after the football games, not in the company of students.  For that, he was fired.  The case relates to these prayers and his firing.

It seems odd to argue that his personal silent 30-second prayer away from his players was an example of government establishment of a religion.  If so, what religion?  How would a “reasonable observer” know for sure that he was praying?  If the observer presumed he was praying, to which God was he praying?  Might he have been praying to Pokemon gods?

The first amendment reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

No party related to this case has noted that the first amendment refers only to Congress.  Apparently, it has been broadly accepted to restrain the actions of any government entity.

Clearly, all these restrictions are intended as a package to protect each individual’s right of freedom of religion.  The School District perceived a potential conflict between Coach Kennedy’s rights and the rights of his students.  How were his students’ religious rights harmed by his actions?  They were off singing the school fight song when he said his silent 30-second prayer.

The School District maintained that a reasonable observer could (mistakenly) infer that the District endorsed Mr. Kennedy’s message.  I question whether a reasonable observer would reach such a conclusion and if they did, the School District could clarify that it did not endorse any religion.  Beyond those counterarguments, I wonder what “message” was being endorsed.  Again, both parties agree that he was silent for about 30 seconds, separate from his students.  How does that establish a religion?  What message does that convey?

The Court ruled that Coach Kennedy engaged in “private speech” done alone on private time.  Despite wild claims to the contrary from some conservatives and some progressives, the ruling clearly does not permit school employees to lead students in prayer at school.

Justice Sonia Sotomayor’s dissent seems embarrassing.

She continually cites Coach Kennedy’s previous actions which are not part of the case.  He had ceased all the practices that were unconstitutional, and the School District had acknowledged so.  Those previous actions were not related to his dismissal.  Yet, Justice Sotomayor wrote:

·        “this Court consistently has recognized that school officials leading prayer is constitutionally impermissible”

·        “The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field.”

·        “Kennedy consistently invited others to join his prayers and for years led student athletes”

·        “The other team’s coach told the principal that he thought it was ‘cool’ that the District “would allow [its] coaches to go ahead and invite other teams’ coaches and players to pray after a game.”

·        “The District Court found, in the evidentiary record, that some students reported joining Kennedy’s prayer because they felt social pressure to follow their coach and teammates.”  This argument has a particularly interesting flaw (besides being irrelevant because it is unrelated to the behavior in question in this case).  Clearly, we want to avoid students feeling coerced by a coach/teacher/etc. to participate in religious activity.  Apparently over the course of all those years when Coach Kennedy did lead players in prayers, the School District was unable to find a single student who felt compelled to participate to please the coach in order to earn playing time, etc.  Some chose to participate because they wanted to be with their friends.  What is the problem here?

·        There may well have been other such comments in her dissent.  I did not try to log them all.

Justice Sotomayor cites “the severe disruption to school events caused by Kennedy’s conduct”.  But the School District acknowledges that Kennedy’s unconstitutional activities went on for many years WITHOUT ANY disruption.  The disruption resulted from the School District dismissing Kennedy.

Ms. Sotomayor points out that “The county is home to Bahá’ís, Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and many denominations of Christians, as well as numerous residents who are religiously unaffiliated.”  Someone walking on the scene might infer that Coach Kennedy was praying but they would not know to which God.  Contrast that with a Muslim who prays to Mecca or wears a hijab.  In those cases, it is clear that the behavior reflects Islamic faith.  Should the Muslim behavior be disallowed?  Is wearing a chain with a cross disallowed?  I don’t think such behavior should be disallowed.  If such behavior should not be disallowed, then clearly Coach Kennedy’s behavior should not be disallowed.

 

Sources:

https://apnews.com/article/fact-check-supreme-court-coach-prayer-schools-602630743738

https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf

 

Carson v Makin (Maine grants for students not supported by public schools)

Maine is the most rural state in the USA.  Some areas find it non-economic to provide public education, so the state provided $12,000 for each student, but restricted use to non-sectarian schools.  29 private schools participate in the program, enrolling 4,526 students.

It seems quite clear that this discriminates against religious schools, as the Supreme Court appropriately observed. 

The Supreme Court dissent by Justice Breyer argued that, by allowing money to be used in a religious school, the state would be establishing a religion.  To me, this argument holds no water:

1.      It does not specify any particular religious school.  A student could attend any qualified school, regardless of religion.  So, how is it establishing a religion?

2.      A student can select any non-sectarian private school, hence is not forced to attend a religious school at all. It is only at the student’s volition that the student attends a particular religious school.  The state has not established that school, the student has exercised his/her own free will.

3.      I think a student could also opt to attend a non-local public school.

Further, Justice Breyer argued that excluding religious schools was helpful in “avoiding religious strife”.  Au contraire, the only related “religious strife” was caused by the state’s exclusion of religious schools.

As the Supreme Court pointed out, the state could offer other alternatives, such as remote learning, local public education, improved transportation to other public schools, or even boarding schools.  Such activities would not unfairly discriminate against religious schools.  The unfair discrimination occurred when the state chose to support private nonsectarian schools but not private religious schools.

The Supreme Court clearly did not suggest that states need to support religious schools.  The Court solely said that if state or local government decides to allow public money to pay for education at private schools, it cannot discriminate based on religion.

This case is consistent with two other recent cases, appropriately decided:

a) Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri could not exclude a church from a program to provide grants to non-profits to install playgrounds made from recycled tires

b) Espinoza v. Montana Department of Revenue, holding that if states opt to subsidize private education, they cannot exclude private schools from receiving those funds simply because they are religious.  (essentially an identical case)

Sources:

https://www.edweek.org/leadership/despite-supreme-court-ruling-maines-religious-schools-face-hurdle-to-state-tuition/2022/06#:~:text=The%20Supreme%20Court%20ruled%20Tuesday,learning%20of%20a%20new%20hurdle 

https://www.scotusblog.com/2022/06/court-strikes-down-maines-ban-on-using-public-funds-at-religious-schools/