Dissident Veteran For Peace

On December 8, 2020, I wrote about the State of Texas' motion in the Supreme Court to allow it to file a complaint over alleged problems in the 2020 election in several states. Back then I made two observations relevant to the present post.

First, I said: "I think the State of Texas should have standing but that is a necessary, but not sufficient, condition and it's motion comes awfully late." Second, I said: "If, as seems likely, the Supreme Court refuses to hear this complaint then it's probably game over for all the election challenges."

The Supreme Court did indeed reject Texas' motion. Here's the full text of the Court's unsigned order:

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Now, it's clear Texas does not have an interest in how other states elect their own state officials. But the notion that they have no "judicially cognizable interest" in how other states elect the one President and VP of all of the United States defies logic and facially undermines constitutional republicanism. I'm not suggesting there were no reasonable grounds to deny Texas' motion but, rather, that the one the Court came up with was unreasonable. 

Supporters of Biden like to mention that many of the federal judges denying 2020 presidential election challenges have been Trump appointees. The implication is that the legal challenges have been so hollow that even Trump loyalists had to reject them.

There may truth to this but it doesn't follow that because Trump nominated these judges that they would necessarily do him any favors. That is the whole point of lifetime appointments for federal judges—to try to insulate them from political influence.

Also, Trump "relied on outside conservative legal organizations and Senate Majority Leader Mitch McConnell" to select and manage the confirmation of his judicial nominees. Moreover, these are people who were on the judiciary career path long before anyone took a Trump presidency seriously and who always knew they would likely be on the bench long after Trump was gone. They might even despise Trump but were willing to accept a nomination (or, possibly, reject an election lawsuit) to advance their own careers and political commitments.

Thus, there are scant grounds to think Trump necessarily got special or even fair consideration of his post-election legal complaints. I'm not saying he was treated unfairly but that you cannot infer much from the fact that some Trump judicial appointees rejected his election claims.

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The January 6, 2021, Capitol rioters are criminals who should be prosecuted. They are also fools and idiots who played right into the hands of the "progressive" authoritarians and their program of racism and repression.

Trump has now been impeached a second time on purely political grounds—they're afraid he'll beat them in another election. Barring a miraculous transformation I hope Trump quietly retires to another, far away country.

In any event, I read the new article of impeachment and it presents no sound legal basis to claim that Trump criminally incited the rioters. If prosecutors believe there is probable cause that Trump committed a crime then they should seek an indictment.

Instead, the Democrats and their media allies are simply hyping and milking the riot for every political advantage they can extract no matter how dishonest the effort. Referring to the upcoming impeachment trial, Jonathan Turley writes: "A private citizen is being called to the Senate to be tried for removal from an office that he does not hold." 

The Democrats had some conceivable legitimate grounds to impeach Trump while he was president though not on events connected to Russia or Ukraine. For instance, the assassination of Iranian general Qasem Soleimani was, arguably, illegal under US and international law. It was also dangerous and counter to American strategic interests. Yet, because that attack was perceived to be in Israel's interests impeachment was never on the agenda for it.

Trump might also have been impeached for his attempt to suborn Mike Pence to violate the Constitution and federal law by unlawfully interfering with the certification of Electoral College votes on January 6, 2021. But, no, to impeach Trump for that would draw more unwanted attention to Pence who refused Trump's entreaties and followed the law while also undermining the Dems specious and profoundly hypocritical claims that for members of Congress to lawfully object to certification "borders on sedition or treason" and such.

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The election of Donald Trump was always a symptom of the larger problems of, in no special order, economic inequality, toxic consumerism, empire, corporate globalization, Democratic race grifting for power, and the corruption of the media and political elites. Trump ran on a campaign that showed awareness of some of these problems but he was seemingly always a con man exploiting the justified grievances of millions of Americans. He betrayed them and never rose to the call of his office or of history.

Unfortunately, Trump's disastrous term has only worsened matters and emboldened "progressive" authoritarians to step up the repression of their political enemies, including the White working class, in general (which is not to say the GOP were ever their allies). This is Trump's fault, the fault of his many enemies, and, to no small extent, the fault of voters duped by him.

Biden claims he wants to unify the country but—and I hope I'm wrong when I say this—that's a lie to judge from so many of his other utterances and policy plans. When I saw recent photos of the unprecedentedly large military presence in the Capitol for the inauguration I was reminded of all the unpopular, repressive governments the US has propped in foreign countries over the years. Are chickens coming home to roost?

Virginia National Guard members in Washington, D.C. on Jan. 13, 2021 (U.S. Air National Guard photo by SSgt Bryan Myhr).

New Jersey National Guard members in Washington, D.C. on Jan. 12, 2021 (U.S. Air National Guard photo by MSgt Matt Hecht).

See also: Anointing Biden & Election Irregularity Allegations IV

 

Labels: Biden, class, Democrats, Empire, Iran, Israel, law, media, military, politics, race, repression, Supreme Court, Trump, voting

Yesterday, the Texas Attorney General filed a motion to have the US Supreme Court consider the State of Texas' complaint on 2020 presidential election irregularities and improprieties in Georgia, Michigan, Pennsylvania, and Wisconsin. The four defendant states have already submitted their certificates of ascertainment regarding their presidential electors to the National Archives.

In the complaint, which, again, the Court has not yet agreed to hear, Texas is thus asking the Court to order:

E. If any of Defendant States have already appointed presidential electors to the Electoral College using the 2020 election results, direct such States' legislatures, pursuant to 3 U.S.C. § 2 and U.S. CONST. art. II, § 1, cl. 2, to appoint a new set of presidential electors in a manner that does not violate the Electors Clause and the Fourteenth Amendment, or to appoint no presidential electors at all.

In sum, as I read it, Texas wants either the four defendant states' Republican-controlled legislatures or the US House of Representatives pursuant to the 12th Amendment ("the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote") to decide the election.

Here are my thoughts:

1. The Texas action is the best pled and most concise case I've seen so far alleging problems in the 2020 presidential election. It's far better than the dumpster fire pleadings offered by Sidney Powell that I've read.

2. I think the State of Texas should have standing but that is a necessary, but not sufficient, condition and it's motion comes awfully late.

3. I have not followed the lower state and federal court election cases closely enough to say how persuasive the evidence is of substantial issues with the election so I will not presume to know how the Supreme Court should or will rule (I mention this because the Texas complaint appears to rely heavily on lower court filings and opinions). If the allegations are substantially true as pled then I would hope the Court would agree to hear the complaint; however, I am skeptical that Texas is on solid legal and evidentiary ground.

4. I think the statistical evidence offered by Charles J. Cicchetti, PhD is flawed, unpersuasive, and harmful to the case. Cicchetti tested the hypothesis "that other things being the same" Hillary Clinton and Joe Biden "would have an equal number of votes" (see Cicchetti Declaration at ¶¶ 11-13). But we know "other things" beyond alleged election irregularities were far from the same in 2016 and 2020. For example, among other things, Trump was running as an incumbent heading an administration beset by personnel instability, incompetence, and a lack of discipline.

5. If, as seems likely, the Supreme Court refuses to hear this complaint then it's probably game over for all the election challenges.

6. If the Supreme Court agrees to hear this complaint then it's a game changer and, although I never want to underestimate their capacity for dishonesty, the mainstream media will probably be compelled to drop their mantra that claims of election irregularities are "baseless", etc. We'll probably also see violent protests by Trump haters.

7. If the Supreme Court agrees to hear this complaint then to open up the possibility that Trump stays in the White House for another term the Supreme Court would have to invalidate the election results in at least three of the four defendant states. If they do agree to hear the complaint then I predict they will overturn the election results in fewer than three states and send Biden to the White House with an unchanged or, more likely, smaller Electoral College margin.

See also:

• Anointing Biden & Election Irregularity Allegations III
• Anointing Biden & Election Irregularity Allegations V
  

Labels: Biden, law, media, politics, Supreme Court, Trump, voting

More than three years ago, in "God Bless Fred Phelps," I wrote: "When the government permits a private action and enforces a judgment against Phelps for invasion of privacy and emotional distress as they did this year in Snyder v. Phelps then everyone who is not a sheep needs to look out." It was heartening therefore to read the following in the 8-1 Supreme Court slip opinion (PDF):

Speech is powerful. It can stir people to action, movethem to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stiflepublic debate. That choice requires that we shield Westboro [Baptist Church] from tort liability for its picketing in this case.

See also: "High court hands 1st Amendment win to funeral picketers"--analysis at firstamendmentcenter.org

Labels: civil liberties, Fred Phelps, Supreme Court

Yesterday, the US Senate confirmed Barack Obama's nomination of Elena Kagan to the US Supreme Court. The Voice of America's story on the confirmation includes this paragraph:

Democratic Senator Ben Cardin of Maryland said, "And when Elena Kagan is confirmed, she will, for the first time in America's history, be the third woman out of nine on the Supreme Court of the United States. I think that is going to give us more common sense justice in this nation, and certainly one that reflects the diversity of our country."

What Cardin neglected to mention is that there are now no Protestant Christian Justices on the Court and when Kagan is sworn-in tomorrow there will be six Roman Catholics and three Jews on the Court. How is that for "diversity"? As ABC News reported last May, "At least one Protestant justice has served at all times since the Supreme Court was established in 1789." But not any more.

Although about 50% of Americans identify as Protestant Christians, they will not be represented on the US Supreme Court. Roman Catholics, who comprise about 25% of the US population, will be over-represented by a factor of 2.7, while Jews, who comprise about 1.2% of the US population, will be overrepresented by a factor of 27.8. (All percentages in this paragraph are from the 2008 American Religious Identification Survey, which is a data source for the Census Bureau's Statistical Abstract of the United States).

In light of the apparent historical over-representation of Protestants on the Court, perhaps, a fair case could be made that they should be now under-represented for a while. However, there's a big difference between having half of the country's population under-represented and not having it represented at all. If one upholds the principle of representative government then you can't be indifferent to a complete lack of representation for the largest population segment.

The fields of critical race, class, and gender theory all tell us that personal identity and cultural background matter in influencing how we view the world and function in institutional settings. Diversity was supposed to help address and counteract biases created by minority exclusion and under-representation but somewhere along the way it seems that it was decided that representing majorities or pluralities didn't matter so much.

In April, before Kagan was nominated retired Supreme Court Justice Sandra Day O'Connor, an Episcopalian, said "I think that religion should not be the basis for an appointment, but if that were the case, one would expect somewhere in the nine to see a Protestant or two." But that expectation has been dashed. Why is that? Could it have something to do with the fact that Barack Obama was hailed in some quarters as the "first Jewish president"? What about the fact that Jews, such as Ben Cardin quoted above, are over-represented in the US Senate by a factor of at least 11?

See also:

• "Elena Kagan and the Supreme Court: A Barnyard Smell in Chicago, Harvard and Washington" by James Petras
• "Elena Kagan: Jewish Ethnic Networking Eases the Path of a Liberal/Leftist to the Supreme Court" by Kevin MacDonald
• "Ambition and orthodoxy (Kagan's hero is also Dershowitz's)" by Philip Weiss

Labels: Christianity, diversity, identity, Jews, law, Obama, Supreme Court, United States

Right: Protesters from Illinois and Topeka line a portion of the S.W. 12th and Gage Boulevard intersection on Sunday. They were protesting the Westboro Baptist Church's picketing of soldier funerals. ANN MARIE BUSH/THE CAPITAL-JOURNAL

Early last month I wrote that Harriet Robbins Ost's article is the most thorough treatment I've seen so far of the important constitutional issues in the Snyder v. Phelps Supreme Court case. Shortly after that the Marine Corps Times published "Snyder-Phelps fight has many twists, turns" by Dan Lamothe. Here's a summation of the constitutional issues from that article:

• Speech and privacy. Snyder asked the Supreme Court to review whether the 4th U.S. Circuit Court of Appeals in Richmond, Va., was correct in protecting the church’s speech if it attacked a “private” figure, Snyder, concerning a private matter, the funeral. The Phelpses argued to the court that there is a “viable basis” to saying Snyder is not a private figure with regard to his son’s death because he had already granted media interviews. The church also said its protests are focused on public issues, making them protected speech.

• Speech and religion. Snyder asked the court to review whether the First Amendment, used to overturn Snyder’s initial settlement, allows the Phelpses’ freedom of speech to trump Snyder’s right to mourn his son in a private religious ceremony. The church has countered by saying its members picketed on a public street, on issues that were of public interest.

• Funeral attendees’ rights. Snyder’s lawyers say that even if the appellate court’s decision to uphold the Phelpses’ free speech was appropriate, it failed to consider that Snyder was a “captive audience” at his son’s funeral. A federal appeals court already has ruled in another case involving the church that the government is allowed to protect private citizens from unwanted communication when they cannot avoid it, Snyder points out. The Phelpses say the argument is not relevant, since the previous case focused on whether a state law banning picketing within 300 feet of a funeral was constitutional — a separate issue.

Today, the Marine Corps Times published "Former Marine protests funeral picketers" which discusses a protest against the Westboro Baptist Church on their home turf, it started last month. That's a better way to deal with Fred Phelps and his church instead of trying to set dangerous legal precedents that erode everyone's First Amendment rights. Oh, wait a minute, I forgot about the slavish fools who don't understand or don't care that freedom of expression means nothing if it is only accorded to those who don't rock the boat or offend the delicate sensibilities of the 'patriotically correct,' etc. masses.

See also: "Attorneys: First Amendment doesn't fully protect funeral protesters" by The Associated Press (26 May 2010) on the First Amendment Center web site.

Labels: civil liberties, Fred Phelps, Supreme Court

I've been following the lawsuit of Albert Snyder against Fred Phelps et al. since 2007. Most of the online coverage following the US Supreme Court's decision to grant certiorari to hear Snyder's appeal has been crap but I have found one thoughtful article. Although tainted by her tedious pro forma denunciations of the Westboro Baptist Church as "obnoxious," Harriet Robbins Ost's article, "U.S. Supreme Court: Will distress trump the First Amendment right to free speech?" is the most thorough treatment I've seen so far of the important constitutional issues in the case.

Labels: civil liberties, Fred Phelps, Supreme Court

Once in Conference the vote was close on a case and [Justice Stanley F.] Reed could not make up his mind. "I am inclined to reverse Chief Justice," Reed said deferentially. [Charles Evans] Hughes replied with his customary twinkle, "Brother Reed, I will enter you in the docket as voting to reverse. For my experience is that if a Justice inclines a certain way, he has the facility and resourcefulness to marshal the reason to back his inclination."

It was shortly after that episode that Hughes made a statement to me which at the time was shattering but which over the years turned out to be true: "Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reason for supporting our predilections."

I had thought of the law in the terms of Moses-principles chiseled in granite. I knew judges had predilections. I knew that their moods as well as their minds were ingredients of their decisions. But I had never been willing to admit to myself that the "gut" reaction of a judge at the level of constitutional adjudications, dealing with the vagaries of due process, freedom of speech, and the like, was the main ingredient of his decision. The admission of it destroyed in my mind some of the reverence for the immutable principles. But they were supplied by Constitutions written by people in conventions, not by judges. Judges are, after all, not creative figures; they represent ideological schools of thought that are highly competitive. No judge at the level I speak of was neutral. The Constitution is not neutral. It was designed to take the government off the backs of people, and no wiser man than Hughes ever sat on our Court. I say that although his predilections, drawn from a different age, were not always mine.

Source: William O. Douglas. The Court Years, 1939-1975. (New York: Random House, 1980) p. 8. Charles Evans Hughes was appointed as an Associate Justice to the US Supreme Court by Republican President William Howard Taft; he served in that post from 1910 until he resigned from the Court to become the 1916 Republican Party presidential nominee. Hughes was appointed as the Court's Chief Justice by Republican President Herbert Hoover; he served in that post from 1930 until 1941. William O. Douglas was appointed as an Associate Justice to the Court by Democratic President Franklin D. Roosevelt; he served in that post from 1939 until 1975.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law ... abridging the freedom of speech." Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States.

Source: Dissent of Oliver Wendell Holmes in Abrams v. United States, 250 U.S. 616, 630-631 (1919). Part of this passage is also quoted in Louis Menand. The Metaphysical Club: The Story of Ideas in America. (New York: Farrar, Straus & Giroux, 2001) p. 430.

Note: It would be a mistake to think that Holmes was a consistent civil libertarian. He wrote the infamous majority opinions in Schenck v. United States, 249 U.S. 47 (1919) and Buck v. Bell, 274 U.S. 200 (1927).

The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.

Source: Anatole France (1844–1924), French author. The Red Lily, ch. 7 (1894)

Every time I repeat, as though by rote, my maxim, 'But justice will ultimately win', I cannot help twitching. Because I know it's a lie and I twitch when I lie.

Justice, alas, is not a benevolent God who will descend when all human efforts fail to salvage his name. The cases in history of grave injustices are well known. The Turks murdered a million and a half Armenians; have they been made to pay? The American Indians were crushed and dispossessed: do they stand a chance of justice? Of course, some may answer that this was before 1948 and the Universal Declaration of Human Rights. Right. All men are equal but only as long as those who have do not have to sacrifice anything to those who have not.

Source: Raja Shehadeh. The Sealed Room: Selections from the Diary of a Palestinian Living Under Israeli Occupation, September 1990-August 1991. (London: Quartet Books, 1992) p. 161. Shehadeh is a Palestinian lawyer and a founder of the human rights organization al-Haq. Sotomayor

Labels: critical thinking, Justice, law, Oliver Wendell Holmes, politics, quotations, Supreme Court

Ralph Nader announced last weekend that he is running for president again this year and all across the country adherents of the 'moderate' wing of the single business-war party--the Democratic Party--whined, "No, not again." This blog post is dedicated to them.

Below is Steve Rosenthal's article from 2000 on the Nader-Gore-Bush contest of that year. I would provide a link but I can't find it on the web anywhere except archived here. At bottom, Ralph Nader deftly answers a critic on the 2000 election controversy in a Youtube video. To Rosenthal's list, I would add:

And, if only one Democratic Senator--Kerry, Kennedy, Wellstone, Harkin, Boxer, Clinton or one of the Florida senators, Graham or Nelson--had supported the efforts of Congressional Black Caucus members to challenge Florida's electoral votes during the Electoral College count, Gore might very well have won. At the least, Americans might have gained a better understanding of the colossal fraud perpetrated in Florida where thousands of mostly Black voters were systematically disenfranchised by being illegally removed from the voting rolls, having their ballots disqualified, or simply not being allowed to vote (and this had nothing to do with butterfly ballots).

I don't want to overstate the importance of electoral politics, though. On the contrary, because we have the best democracy money can buy (and I don't mean voting machines), I have little faith in elections to provide solutions to the problems we face (see also Rosenthals' concluding remarks). Instead, we must realize our own power and struggle primarily outside the electoral arena.



So we're still debating whether Nader cost Gore the election.

Well, if Nader hadn't been in the race, Gore probably would have picked up enough of Nader's 2.7 million votes to beat Bush.

And, if some six million registered Democrats hadn't voted for Bush, Gore would have won.

And, if Gore had inspired a few of the 50 million eligible voters who did not vote, Gore would have won.

And, if Gore and his "new" Democrat friends hadn't supported the war on drugs, the prison construction boom, and the disenfranchisement of over four million citizens, disproportionately black and poor, at least enough of them would have voted Democratic to put Gore in the White House.

And, if Democrats hadn't joined Republicans in refusing to spend money to update election machines in poorer counties, fewer ballots would have been thrown out, and Gore would have won.

And, if Democrats hadn't traditionally agreed with Republicans that immigrants, documented and undocumented, are not eligible to vote, Gore would surely have gained enough Latino and Asian votes to win the election.

And, if Democrats hadn't joined with Republicans in preventing U.S. citizens in Puerto Rico from being eligible to vote for president, Gore no doubt would have picked up enough votes to win.

And, if Democrats had refused to confirm Clarence Thomas or one of the other racist pro-Bush majority on the Supremely Racist Court, maybe the court would not have helped Bush steal the election.

And, and, and so on. You can undoubtedly add much more to this list.

So to select one factor (Nader) as THE factor that determined the winner of the election strikes me as mainly of an indication of who you want to scapegoat.

More importantly, the Gore vs Nader discussion rests on the premise that at least one of those two candidates was worth supporting. Frankly, I think that what Nader said about Gore was mostly true, and much of what the Gore supporters said about Nader was also true.

Both Gore and Nader played the ideological role of telling masses of oppressed and/or disaffected people that the capitalist economic and political system can be reformed, and both Gore and Nader diverted people away from seeing the crucial necessity to make anti-racism central in building an anti-systemic movement.

Alan Harrison asked why the U.S. doesn't have at least a right wing social democratic party. My answer is that the Democratic Party basically plays that role in U.S. politics. Like the Labor Party in Britain, the Democrats have close ties to the unions, and both parties have moved to the right and adopted what some call "neo-liberalism" during the past decade or so.

Whether the U.S. has a "soft landing" or a recession next year will be determined a little bit by the the Fed, but it will be determined mainly by the laws of capitalism. So will the continued pervasiveness of racism and future imperialist adventures and wars.

It won't matter who stole the election. The ruling class did us a favor by staging an election so corrupt and fraudulent that it must have deepened the contempt that more and more people have for the system.

By all means, let's analyze this election. It will help many to shed illusions they have had about the political institutions of U.S. capitalism.

Ralph Nader on the 2000 Election

Labels: Bush, Clintons, Democrats, politics, Ralph Nader, Supreme Court, video, voting

Americans are inclined to believe that the Supreme Court is the deus ex machina that regularly saves American democracy from itself. This view is difficult to support by the actual decisions of the Court. ... there is not a single case in the history of this nation where the Supreme Court has struck down national legislation designed to curtail, rather than to expand, the key prerequisites to popular equality and popular sovereignty.

Source: A Preface to Democratic Theory by Robert A. Dahl (Chicago & London: Univ. of Chicago Pr., 1956) pp. 58-59.

Elsewhere on page 59, Dahl lists the "key prerequisites to popular equality and popular sovereignty" as "the right to vote, freedom of speech, freedom of assembly, and freedom of the press."

Labels: civil liberties, critical thinking, law, politics, quotations, Supreme Court, United States