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How Stupid to you have to be to teach at Harvard Law? (Part 2)

Friday, February 5, 2021

Alan Dershowitz is apparently not alone.

Back in May I wrote a post about Larry Lessig, Harvard Law Professor who brought a case to the Supreme Court claiming that presidential electors should be free to vote for the person of their choice, in spite of state laws requring them to vote for the candidate to which they were pledged. His stated aim was to “make the Electoral College so wacky and unpredictable that the entire country turns against it, then adopts a constitutional amendment creating a nationwide vote for president”.

In my post, I proved beyond doubt that a favorable Supreme Court ruling would not result in such an amendment. But that case had one merit. A favorable ruling would have done little harm, because one must assume that the campaigns make sure that the electors they choose to put on the ballot will, by and large, remain faithful to the candidate to whom they are pledged.

The Supreme Court ruled against him.

Now Lessig is at it again, along with some other lawyers, including David Boise (who helped George W steal the 2000 election). This time they are claiming that winner take all state elections, in which the candidate with the most votes gets all the electors from that state, are unconstitutional.

The case is brought by a pair of California Republicans and a pair of non-profit organizations and alleges that the “winner take all” system of awarding presidential electors that prevails in every state except Maine and Nebraska amounts to an unconstitutional dilution of their right to vote.

They are claiming that the electors should be distributed to reflect the vote in each state.

I’m sure Lessig and his brethren would argue that the end result of a favorable ruling would bring us a near equivalent to a popular vote constitutional amendment. But this requires us to adopt a very Pollyanish view of the current Supreme Court, for it presumes that the court would issue a decision that would not be infected with partisanship, bad faith, and intellectual dishonesty of the first order. Given that the current Supreme Court is partisan, operates in bad faith, and is as intellectually dishonest as a court can be this is a leap of faith that no Olympian could accomplish, yet Lessig and his compatriots appear to have jumped into the abyss.

There are, roughly speaking, two ways in which the court could render a favorable opinion in this case.

The first way would strike down winner take all systems as unconstitutional and require that electors be apportioned strictly on the basis of the percentage of the vote that each candidate got in the state in question. If a state had 10 electors, and the vote was split 50-50, each would get 5 electors. This would, if applied nationwide, likely guarantee that the popular vote winner would win the presidency, though I suspect that the states having few electors, such as Wyoming, would cause the final electoral college vote to skew red-ward. Proving that speculation would require more math than I’m willing to do, but even if I’m right, the popular vote winner would still likely come out on top.

Because in the current day and age the popular vote winner is overwhelmingly likely to be a Democrat, the present Supreme Court would never choose this option.

The court would take the second route. It would leave it entirely up to the states to determine how to apportion the electors, basically greenlighting an apportionment by Congressional district. This would mean that a heavily gerrymandered state such as Pennsylvania, which gave Biden a majority of its votes, would have given the majority of its votes to the Republican candidate whose name shall not be needlessly mentioned in this blog. There is literally no state in the union that is as heavily gerrymandered in favor of the Democrats as are 10 to 20 states in favor of the Republicans. Had such a system been in place in 2020 the crowds of folks currently being arrested for sedition would have been goose stepping at the genius’s inaugural parade on the 20th of January last. The fact is that such a system would be less likely to favor the popular vote winner than the current system.

Anyone paying attention to this Supreme Court would have to know that this is how they would rule. This is the court, after all, that blessed partisan gerrymandering, a step it would never have taken had it been Democrats doing the gerrymandering. It is also the court that is looking the other way while the states of the South attempt to re-institute Jim Crow.

So, are Lessig and his fellow lawyers just stupid, or are they really just trying to hand the Republic over to the Republicans?

I suspect the court will either refuse to hear this case, or rule against the Lessig team, but we should all fear the possibility that it will take this opportunity to game the system in favor of the Republicans.

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Are they really this crazy, or just playing crazy for the press?

Tuesday, February 2, 2021

I just got finished reading this post at Crooks & Liars, and my mind is truly boggled. The post is a sort of a state by state summary of the extent to which the nutcases have taken over state and local party organizations. But this is what struck me as the craziest thing of all:

“The Republican Party right now is relatively divided, but it’s not the traditional ideological divisions that used to be in place, as much as it’s between the sane and insane wings of the party,” RightWisconsin editor James Wigderson told the Madison Capital Times. “I think that there’s a chance of a real fracture coming.”

Establishment Republicans such as former Lt. Gov. Rebecca Kleefisch, however, defended the Trumpists for their paranoia and embrace of partisan disinformation: “That is the perspective they have, that is the view that they have and it’s valid; you can’t say someone’s opinion of a subjective matter is invalid,” she said. “I mean, what gives us the right to judge someone’s opinion like that?”

Where do you even start? Of course Kleefisch is obviously a hypocrite, as I would be willing to bet my life savings that she’d have no trouble arguing that the opinion of a Democrat is invalid, be it objective or subjective. But it’s just the monumental stupidity of it, the pretzel twisted illogic, that leaves you wondering how anyone could be stupid enough to volunteer such a statement instead of simply having no comment.

These folks set out to create a monster that would vote against its interest to keep them in power. It worked for a while, but now the monster is demanding that they work for it rather than solely for their corporate and evangelical masters. This only ends in fascism if it isn’t stopped, and there’s no one in the Republican Party interested in stopping it.

Postscript: Just for the record, I came up with the monster analogy in the last paragraph (not original, I know) before running into the article to which I’ve linked in that paragraph. Give it a read, it’s fun.

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The Democrats appear to be getting it

Tuesday, February 2, 2021

Some years ago an occasional reader complained to me that I never had good news on this blog. I tried for a while to reform, and even created a “Good News” category, but if you click on it, you’ll see that it’s sparsely populated. But if this post goes as planned, it will join that group.

First, to be clear, the good news is not an intent on my part to stop blogging, though I find that the absence of he whose name has never been connected to the word “president” in this blog does make it a bit harder to come up with material.

No, the good news is that the Democrats who represent us in Washington have finally appeared to learn the facts about Republicans, facts which we lefty bloggers have been screaming about for — well, for as long as there have been lefty blogs.

Specifically, it now appears that both the Democratic President of the United States and the majority of Democrats in Congress, very much including leadership, are now aware that one cannot assume or even hope that Republicans will bargain in good faith. Nor can they be expected to play by the rules to which they insist Democrats must adhere when Democrats are in the majority. The current debate about the stimulus package looks to be a re-run of 2009, except this time the Democrats aren’t falling for it.

Another piece of good news, or maybe a subset of the above, is the fact that, so far, Joe Biden seems to get it. Several years ago I was a regular listener to Pod Save America, and I recall hearing Joe tell the hosts that the Republicans would have a come to Jesus moment after the election and that it would be a mistake to take away the filibuster. He has obviously changed his mind, particularly as to the first of those, as one gets the distinct impression that he is very much trying to give the impression that his meeting with those 10 Senate “moderate Republicans” (a terribly overworked oxymoron by the way) was simply a perfunctory exercise.

Now, if only the Democrats would up their game in one other way. I’ve been saying for years that they have to learn to get on the same page, come up with talking points regarding the issues of the day, and repeat them endlessly, in the same way Republicans have done for years. Case in point is today’s Republican talking point to the effect that the Democrats really must take the views and feelings of the 74 million idiots who voted for Trump into account, by, if you follow the logic, not doing anything of which Republicans disapprove. The press has, to a certain extent, bought into some of this bullshit, and it’s important that the Democrats come up with a rejoinder that not only hits the Republicans but makes the point that the press is constantly expecting Democrats to do things for which they give Republicans a pass. It really isn’t that hard. I just hope it doesn’t take them 12 more years to learn that lesson, which is how long it took them to figure out that you can’t expect Republicans to bargain in good faith.

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DC Statehood’s likely fate

Thursday, January 28, 2021

A bill has been introduced in Congress to make the District of Columbia a state. The overriding purpose, besides giving people who are subject to taxation some representation, is to increase our Senate majority by adding a fairly populated state to balance off some Senators from sparsely populated wastelands like Wyoming. I’ve read elsewhere, but can’t remember where and can’t find the link, that there’s also a movement to do it by constitutional amendment.

I’ve written about this issue in the past, and a quick Duck-Duck-Go search (Google is evil, use the Duck) leads me to conclude that, as I suspected, the right would attack any bill granting DC statehood as unconstitutional, for the very reasons I gave in my previous post.

My solution was for the Congress to redefine the boundaries of the seat of government to exclude all but the very center of DC, keeping within the district only the Capitol, the Supreme Court and the White House, and whatever other bits of geography that of necessity would have to be included in such a carve out. I’m fairly sure you could create a District that had virtually no “residents” who weren’t registered to vote elsewhere.

All of this still runs up against the fact that we now have possibly the most partisan and intellectually dishonest Supreme Court in our history, so I’m betting they would find a way to declare the statehood bill unconstitutional even if my fix, or something like it, was utilized. The obvious dodge is the one I suggested: that they would rule that the areas in question that were carved out of the District would revert back to the states from whence they came. That would mean a few extra Congressfolks from blue areas of Maryland and/or Virginia, but not the extra blue Senators that we really need.

Puerto Rican statehood would be easier; they couldn’t do much about that. But, personally, given the state of this nation at the present time, if I lived in Puerto Rico, I’d opt for independence. DC residents don’t have that luxury.

NOTICE: Comments still inoperative. I still can’t face the prospect of spending hours on hold waiting for tech support from the hosting service. I thought I could just disable some plug ins, and see if one of them was causing the problem, but I don’t really have any that interact with comments, so I don’t see that as being a solution.

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New London Day: Whackjobs! We want to hear from you!

Saturday, January 23, 2021

The New London Day apparently can’t afford to send it’s reporters into diners to seek out the whackos, like the New York Times, so it’s asking the whackos to come to it.

On the front page of today’s Region section there’s a little item asking whackjobs who’ve applied for pistol permits in 2020 to give the Day a call. Apparently, the Day wants to get on the same bus as the Times, seeking to understand the crazies.

Buried in all this, of course, is the unstated proposition that these people are oddities, who we must understand and to whom we must give ever so many benefits of the doubt. Normal people, you know, people who don’t stockpile weapons or go maskless during a pandemic, aren’t worth seeking out. Who cares what they think! That’s why the Times spilled endless ink on Trumpies in diners, but never, in eight years, bothered to seek out Obama voters.

This is nothing really new for the Day, which has been catering to the right for years now. Among other things they have inflicted local right wing radio host Lee Elci on us as a regular columnist, but they have, apparently, been totally unable to find a local left winger so they can be “fair and balanced”.

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Republicans lament: no fair calling us Republicans

Saturday, January 23, 2021

Pity the poor blogger, when fate deals him a hand that he cannot win. This article in the New London Day presents a challenge that requires a Mark Twain, or, at the very least, a Driftglass to come up with just the right nouns, verbs and especially adjectives to properly mock the Republicans of the City of Groton.

Poor dears! The City Republicans will not be running a slate of candidates in the May Municipal elections because, as the Coaster’s Charlie Brown of oldies sang, they can’t figure out why “everybody’s always picking on [them]”:

The City of Groton Republican Committee will not put forward candidates for the city elections in May, after prospective candidates cited concerns over “a hostile and threatening environment” for Republicans and withdrew their names from the slate.

“Over the past year and one half, the City of Groton Republican Committee identified a well-qualified slate of individuals who have shown a keen interest in running for election on the Republican ticket in the City of Groton,” according to a news release issued by the Republican Committee. But over the past week, the “prospective candidates have congruently withdrawn their names from the slate” and indicated the following three reasons for withdrawing their names:

“Over the past few months, there has been an increase in negativity toward Republicans, whether they supported Donald Trump or not during the 2020 election, by Democrats on the National, State, and local level, which has created a hostile and threatening environment for those wishing to run for election,” the release states.

“The recent improper and illegal action at the Capitol Building in Washington has created an even more negative, and visible, atmosphere towards Republicans on the Federal, State, and local (levels),” it further stated.

“Increased, nationally publicized threats, intimidation and bullying of Republicans by many liberal Democrats has created an environment causing many citizens, who were considering running for election to reconsider doing so out of concern for the safety and welfare of themselves and their family,” the release continued. “This has also raised major apprehension that they would be subjected to unjustified public ridicule and embarrassment by Democrats supporting the liberal left, should they elect to run for public office.”

Do you see my problem? How does one sum up the absurdity of the above in a few pithy sentences. Surely it can be done, but I find I can’t do it!

Let’s take a bit of a detour here, and note that the reporter apparently does not ask the City Republican Chair to cite even a single instance of “nationally publicized threats, intimidation and bullying of Republicans by many liberal Democrats”, but that’s the sort of journalistic malpractice that one learns to expect when the press deals with Republican mendacity.

The reporter herself takes a detour into New London, whose Republican town chair explains the source of the horrible treatment Republicans must endure:

She said there is a “new culture” in which it is “OK to be nasty to people because of their political affiliation.” While she said that has been the case for both parties for some time, an open hostility toward Republicans has grown for the last couple of weeks. She said there is an “immediate assumption that if you are a Republican, that you must have voted for Donald Trump, and that you must be racist and you must be all of these bad things simply because you bear the Republican political moniker — and quite frankly that’s not true.”

Funny, I thought being a member of a political party meant that you subscribed to a certain set of principles that the party embodies. I keep imagining a Gauleiter in 1932 Germany complaining to a newspaper that it’s so unfair that some people assume you support Hitler, that you’re anti-Semitic, and “all of these bad things” just because you bear the Nazi moniker. Who knows? There may have been Nazis who had their doubts about Hitler and didn’t want to kill Jews – – but they were still Nazis.

But here’s the drill, which some in the press are reinforcing: It’s time for healing, America! And that means, according to Republicans, that we must forgive them their trespasses, consign said trespasses to the memory hole, and get back to calling Democrats Socialists and radicals (see, e.g., Republican Heather Somers baseless attacks against Democrat Bob Statchen) and blaming Antifa for the acts of right wing storm troopers, as John Scott, Groton Town Chair, who is quoted in the article, recently attempted to do. They want all that forgiveness but perish the thought that they should have to confess their sins and say a sincere act of contrition, not to mention do a considerable penance.

Also, of course, we mustn’t reverse all of Trump’s racist policies because that hurts their fee-fees too. And, also, surely we can see that we should guarantee that Mitch McConnell can obstruct every single thing the Democrats and Biden want to do? You know, for the sake of unity.

Poor misunderstood Republicans. They’ve got it so rough.

Explanatory Note: I’ve referred to both the Groton City Chair and the Groton Town Chair of the Republican Party. For those not from our fair town, Groton City and Groton Town are two different, though intertwined entities. Too complicated to explain and not necessary for this post. Except that I should point out that the City is heavily Democratic, the Democrats typically sweep the municipal elections, and that’s why no one wants to run for those offices. But we shouldn’t let reality intrude too much.

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Is it okay if you’re a Democrat?

Thursday, January 21, 2021

I have to admit that I was unaware of this at the time, but apparently during the administration of he who shall go unnamed, the Supreme Court ruled that legislation shielding the director of the Consumer Financial Protection Bureau from being fired was unconstitutional. They did it so the genius could replace a rational person with an anti-consumer zealot.

In the precious time allotted to her, Kathleen Kraninger, the zealot in question, has compiled quite a record:

Kraninger, who had no previous experience in consumer protection, immediately tried to undermine the agency’s role as a watchdog for the financial sector. She scrapped a landmark rule that restricted predatory payday lending, pressuring staff to downplay the resulting harm to consumers. And she refused to enforce a federal law that protected military personnel against a broad range of predatory lending. Her decision yanked federal support from military families who were defrauded by lenders. In the midst of the pandemic, Kraninger also approved a rule that allows debt collectors to harass Americans with limitless texts and emails demanding repayment.

Now, Joe Biden has taken advantage of that ruling, and has fired that very zealot.

So the question arises: How will the Supreme Court verbalize a reason for overturning Biden’s action without explicitly saying that it should have been understood that the ruling only applied to Republican Presidents? Who knows, we may find out soon.

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Inaugural Playlist

Wednesday, January 20, 2021

As I write this, or begin to write this, there are 21 hours and 58 minutes to go, but the end is in sight, so here’s some music to get in the right mood. I retired that some of these have no video, but you take what you can get. First up, because it’s the first that came to mind:

I have this fantasy. Just up the hill from my house, at the very top of Fort Hill, someone has been flying a Trump flag for the past four years. I would love to have a flash mob outside that house at noon on the 20th to dance to this song. For that matter, wouldn’t it be good if that mob showed up at Trump Tower.

Anyway, on to the next item. Some might argue that this should have been first, considering the occasion, but I really think Martha and the gang deserve pride of place. Anyway, here’s two versions of what we have to say is the Democrat’s theme song. One quite specific to the moment, but one performed a bit better by Mitch and the Gang. I have a soft spot for Mitch. When I was about 6 my Dad brought one of his albums home. It was one of the few we had, and I must have listened to it a hundred times. First, the up to date version:

Now Mitch and the gang:

https://youtube.com/watch?v=75V3H-FXf78&feature=share

Next up:

I’m a bit befuddled about why the video in this next one has Bob Dylan and some person I can’t identify in it, when it’s by Van Morrison. And yes, I know Van has gotten crotchety about COVID restrictions, but still..

https://youtu.be/csWSE4-Cs6k

Can’t argue with this one:

Okay, I was a bit conflicted by the next one. It certainly captures the correct spirit for the day. I last saw the movie when I was six or seven, so I can’t say for sure, but I’ve a vague impression that the movie might not hold up well, politically speaking. So rather than put in the clip from the movie, I’m going with Louis Armstrong, because who can criticize that?

Willie Nelson’s version isn’t available as an actual video, but this Kate Smith version is pretty good.

Can’t forget Randy.

Finally:

Epilogue: We’ll be celebrating, but we have to keep in mind that we can’t let it all happen again, as we don’t want the scene to the right to be repeated again. This next song isn’t quite on point, but close enough. There are a million versions of this song on youtube (well, maybe not a million) but the first time I ever heard it was on a CD I bought by this fellow, Thomas Hampson. I don’t even know why I bought it. I had never heard of the guy. It was a CD of Stephen Foster songs. Anyway, the guy has a great voice, and this is an actual live performance and as far as I’m concerned, the four years of Trump were the definition of a kind of Hard Times, not to mention that the year of the plague has not been fun.

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Another resistance hero?

Monday, January 18, 2021

On the first day of January of the worst year in many decades (that being 2020) I wrote a piece in which I made a number of predictions. Here’s one paragraph that came to mind recently:

The Republicans, in alliance with Fox News, will suddenly declare that the president is subject to the rule of law, and although they will have nothing valid on Biden, they will continue to spin conspiracy theories. William Barr will get a respectful hearing on CNN as he argues that a special prosecutor should be appointed to pursue those theories, and that Joe, seeing as he’s a Democrat, is not entitled to the benefits of the unitary executive theory. Come 2023, when the Republicans have taken back the House, and likely the Senate, they will move to impeach Biden on specious grounds, or at the very least, threaten to do so while conducting interminable investigations to distract from their primary goal of transferring our money to the already rich.

I was a bit wrong about the Biden impeachment, as one of the newly elected whackjobs intends to introduce articles of impeachment as her first official act. But, really, I think a serious effort in that direction will have to await the Republican return to majority status.

This post is about Bill Barr, who has let it be known that he heroically called bullshit on Trump’s lies about the election. He is apparently looking to get the mainstream, or at least Fox, to sanitize him so he can pontificate. He hopes, and there is a better than even chance his hopes will be fulfilled, that the catalogue of horrors and abuses of his office will be forgotten, now that he’s shown his true resistance colors. As the linked article suggests, the sanitizing has already commenced.

You have to hand it to him that he saw the way the winds were blowing, and did what was in his own interests. But in his case, he had few options. As attorney general, had he climbed on the “stop the steal” bus, he would have had to put up or shut up. The put up part wasn’t in the cards, so he chose to shut up. He had the smarts to realize that Trump would be history, whatever Barr might do, so he figured he might as well come out looking like he’d done the right thing (for once).

Guys like Hawley and Cruz had a more difficult decision to make. They aren’t looking to get punditry jobs, or otherwise pose as elder statesmen (or statesmen of any kind, for that matter). They want to be president, and they made the calculation that adding fuel to the fire would be in their best interests. It may turn out that they were right, but we won’t know for a while. It can’t help Cruz, for instance, that just about every newspaper in his state is calling for his resignation and Hawley is losing contributors, though that may be a passing fad.

Anyway, don’t be surprised if you soon see Barr on CNN telling us about the limits of presidential power. And don’t forget that if you see him there, it will be as the result of massive journalistic malpractice, for Atrios makes a good point here:

The reason to push for the shunning of everybody who worked with Trump is that we know that they knew – even more than we did – just how dangerous it was to leave that man in charge of a superpower, our superpower.
And they didn’t care.

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Somebody better investigate soon

Wednesday, January 13, 2021

This post at Hullabaloo is well worth reading. It relates the impressions of the Capitol Hill insurrection of historian Terry Bouton, who has attended multiple Washington demonstrations as an observer. His observations about the demographic makeup of the crowd are enlightening, but most interesting are his observations about the security:

There is no doubt the Capitol was left purposefully understaffed as far as law enforcement and there was no federal effort to provide support even as things turned very dark. This contrasts sharply with all of other major protests we have attended.

A lot has been made of the contrast to the overwhelming police presence at Black Lives Matters protests in the fall, and this is certainly true. But there was also A LOT more federal law enforcement presence at every single previous protest we have attended in DC.

Most of these protests involved tens of thousands of mostly white, middle-aged people (meaning race wasn’t the only reason for the disparate police presence). Even the March for Science had far more police for a non-partisan event featuring “Bill Nye the Science Guy.”

By contrast, there was a tiny federal police presence at “Stop the Steal” despite weeks of promises of violence spread on social media by well-known far-right radicals, many of whom had long histories of inciting violence.

Read it all. A thorough investigation is needed.

I expect that as calls for such an investigation increase, and as it gathers steam, we will be hearing from the Republicans that it’s all just a baseless conspiracy theory.

Notice: Not that many are likely to care, but comments are not working on this blog at the moment. I’ll be putting this notice on posts until I get the problem cleared up. That will involve attempting to contact someone at my web hosting service, which is both time consuming and aggravating in the extreme, so I’ve been putting it off until I have a few hours I can spend on hold waiting for someone to talk to me.

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