The Daily Parker

Politics, Weather, Photography, and the Dog

Not enough time on my hands

I thought the weekend of Canada Day and the weekend before Independence Day wouldn't have much a lot of news. I was wrong:

  • Ontario Premier Doug Ford (the brother of Rob Ford) cancelled Canada Day celebrations in Toronto*. (Imagine the Governor of Virginia or the Mayor of DC canceling the 4th of July and you've about got it.) Fortunately for the city, the Ontario legislature reinstated them.
  • You know how I write about how urban planning can make people happier, healthier, and friendlier? Yah, this city in California is my idea of hell. I hope the developers lost all their money.
  • In contrast, I learned of the Lil Yellow House while in Toronto, and the rap video the real-estate agent created to sell it. (It sold quickly, for C$500,000.)
  • Apparently, my drinking gets me a B-. (80% of Americans drink 6.75 drinks per week or less; the top 10% drink 15.28 per week. This is the one B- I'm happy to have.)
  • My alma mater recently published new research linking your email address to your credit score.
  • Alabama prosecutors have brought charges for manslaughter against a woman who miscarried after getting shot. No, really. Because Alabama.
  • Former President Jimmy Carter called out President Trump on the (alleged) illegitimacy of his election.
  • The New Republic adds to the chorus of organizations surprised at what it actually took to get the Supreme Court to call bullshit.
  • Ever wonder how often two bags of Skittles candy have the same proportions of flavors? No, me neither. But this guy did.
  • Windows has a case-insensitive file system; Git is case-sensitive. Do the math.
  • Um. That's not a pet bird.

*Those celebrations will be here, on the right, in this view from my hotel room yesterday:

Reactions to the Rucho decision

It turns out, I wasn't the only one to have a strong reaction to Rucho v Common Cause. We start with Justice Elena Kagan (citations removed):

The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” And therefore what? That recognition would seem to demand a response. The majority offers two ideas that might qualify as such. One is that the political process can deal with the problem—a proposition so dubious on its face that I feel secure in delaying my answer for some time. The other is that political gerrymanders have always been with us. To its credit, the majority does not frame that point as an originalist constitutional argument.

After all (as the majority rightly notes), racial and residential gerrymanders were also once with us, but the Court has done something about that fact. The majority’s idea instead seems to be that if wehave lived with partisan gerrymanders so long, we will survive.

That complacency has no cause. Yes, partisan gerrymandering goes back to the Republic’s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude line drawing of the past. Old-time efforts, based on little more than guesses, sometimes led to so-called dummymanders—gerrymanders that went spectacularly wrong. Not likely in today’s world. Mapmakers now have access to more granular data about party preference and voting behavior than ever before. County-level voting data has given way to precinct-level or city-block-level data; and increasingly, mapmakers avail themselves of data sets providing wide-ranging information about even individual voters.

Crain's Chicago Business columnist Greg Hinz:

We’re all used to momentous U.S. Supreme Court rulings at the end of June. But rarely has the potential impact here in Chicago and Illinois been as great as it will be after a pair of key decisions today, in which the court upheld partisan gerrymandering and temporarily blocked a question about citizenship in the 2020 Census.

One decision likely removes much doubt that Illinois Democrats—led by Gov. J.B. Pritzker and state House Speaker Mike Madigan—will remain in power here and assure that allies do the same in the Illinois House and Senate and in the state’s congressional delegation. The other raises the odds that Illinois will lose one, not two, U.S. House seats in the upcoming decennial reapportionment—and keep hundreds of millions of federal dollars that are allotted on the basis of population.

Back in Illinois—unless Democrats were to somehow lose their majorities in the 2020 elections—that means that they'll draw the next set of legislative and congressional maps. There will be no court challenge, at least not one base on the new map's partisan tilt.

Gov. Pritzker has promised not to be partisan in the upcoming remap, and a reform group, Change Illinois, today called on him to honor that pledge, saying in a statement that "we deserve competitive elections and an equitable democracy in Illinois."

But if you really think Pritzker, who may have national political ambitions, is going to throw away the Democratic edge here while Republicans in states such as Indiana work to screw Democrats, you don't know politics. I'm not sure how he'll wiggle out of this one. But wiggle he will.

Had Garland been confirmed to the court, he quite possibly would have sided with the court's liberal justices and been a fifth vote to outlaw partisan gerrymandering. But he didn't get confirmed. As a result, states that already are blue (like Illinois) likely will get even bluer. And states that are red will turn redder.

Democratic presidential candidates:

“Today the Supreme Court refused to stop politicians rigging our democracy by writing election rules for their own benefit,” former vice president Joe Biden said on Twitter. “It couldn’t have happened without Justices put there by Donald Trump and Republicans — another reason why Democrats must take back the White House in 2020.”

Sen. Elizabeth Warren (D-Mass.), another presidential candidate, called the decision an “abomination.”

“Five Republican-appointed justices gave the green light to partisan gerrymandering — which lets Republicans pursue their extreme agenda without accountability to the people,” Warren said in a tweet. “It’s bad for our democracy and we need to fight back.”

Sen. Kamala D. Harris (D-Calif.), another White House hopeful, said a ban on partisan gerrymandering would be “a top priority” for her if elected president.

“Politicians shouldn’t be able to pick their voters, voters should choose their representatives,” Harris said on Twitter. “The Supreme Court’s gerrymandering decision will have drastic consequences for the future of our nation.”

Rep. Tim Ryan (D-Ohio), another White House hopeful, called the court decision “misguided” and “an insult to our democracy.”

And Sen. Amy Klobuchar (D-Minn.) also weighed in on Twitter, quoting from the dissenting opinion of Justice Elena Kagan.

“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan said. “The practices challenged in these cases imperil our system of government.”

This isn't over, by the way. Kagan's dissent was sound; and 5-4 decisions by nakedly partisan courts tend not to live past the next appointment.

Still, it's a bad decision for the country, and a good one for the Republican Party. Those things usually go together, after all.

SCOTUS embraces partisanship

Remember when US Senator Mitch McConnell blocked the confirmation of Merrick Garland to the US Supreme Court because he could? And when I and lots of others warned that the election of 2016 would have far-reaching consequences? Good morning, it's the last day of the Supreme Court's term, and they are publishing their far-reaching consequences to the world.

In a decision that surprised no one but saddened a lot of people who believe the Court has drifted into naked partisanship, the five Republican-appointed justices voted against the minority parties of North Carolina and Maryland, deciding that gerrymandering was "a political question:"

The drafters of the Constitution, Chief Justice John G. Roberts Jr. wrote for the majority, understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges, the chief justice said, are not entitled to second-guess lawmakers’ judgments.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote.

When I was in law school, my constitutional law professor joked that "political question" means "we can't come up with anything logical that will pass a smell test." As Justice Elena Kagan wrote in her dissent, "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people."

Let's not gloss over this: the Republican-appointed justices voted for their own party.

Maryland, like Illinois, California, New York, and Massachusetts, already have Democratic majorities. Sure, this decision means Republicans won't ever again have anything approaching real representation in those states. But Democratic voters already outnumber Republicans in North Carolina, Texas, Florida, and Pennsylvania. So this decision very much favors the Republican party, and will enable Republicans to hold on to power even as their numbers dwindle over time. Both of which, I don't need to point out, are happening.

So this decision makes explicit what everyone already knew: the Republican-appointed justices are Republicans first, justices second. This was a party-line vote, not a conservative vs. liberal vote, and it diminishes the Court.

The Court also decided today that the White House explanation for its proposed citizenship question was so much bullshit and sent the case back to the lower courts, meaning the Commerce Dept. probably won't put it on the forms they send out next spring. Chief Justice John Roberts' opinion for a unanimous court, however, held that Commerce Secretary Wilbur Ross lied about the rationale for putting the question on the 2020 form, but there was nothing wrong with the question itself. This decision resulted in five separate concurrences and dissents, with the Republican justices generally supporting the question and the other justices not.

In other words, the Republican justices couldn't come up with a rationale that supported their party that could pass the laugh test in this case either, but also couldn't call it a "political question," because Ross was just too incompetent at lying to help them. This isn't a victory for anyone; this is an own goal by the GOP.

That's right. We live in a country that still has the rule of law because the ruling party are too incompetent to do authoritarianism correctly. (It helps that authoritarians tend to incompetence by definition.) And the rope-a-dope strategy the Democratic Party are currently using just isn't working.

Stevens' own private Heller

Former Associate Justice John Paul Stevens believes District of Columbia v Heller was "unquestionably the most clearly incorrect decision that the Supreme Court announced during [his] tenure on the bench:"

The text of the Second Amendment unambiguously explains its purpose: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” When it was adopted, the country was concerned that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states.

Throughout most of American history there was no federal objection to laws regulating the civilian use of firearms. When I joined the Supreme Court in 1975, both state and federal judges accepted the Court’s unanimous decision in United States v. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia. In that case, the Court upheld the indictment of a man who possessed a short-barreled shotgun, writing, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

And after Heller came Sandy Hook, Las Vegas, Sutherland Springs...and on and on.

An end to civil forfeiture?

The US Supreme Court ruled today that the 8th Amendment rule against "excessive fines" applies to the states as well as to the Federal Government:

The decision is a victory for an Indiana man whose luxury SUV was seized after he pleaded guilty to selling heroin. It is also a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.

In an opinion by Justice Ruth Bader Ginsburg, the court seemed to regard the basic question before it as an easy one. The justices explained that the “historical and logical case for concluding that” the ban on excessive fines applies to the states through the 14th Amendment – which bars states from depriving anyone “of life, liberty, or property, without due process of law” – is “overwhelming.”

States and municipalities have relied on civil forfeiture laws for revenue over the past three decades or so, with ridiculous and horrifying results. Today's decision will go a long way to curbing those abuses.

The New Jersey Plan on full display

If Brett Kavanaugh is confirmed, it will be only the second time in U.S. history that an Associate Justice nominated by a president who lost the popular vote will be confirmed by senators representing less than a majority of the country's population:

Let’s walk through it.

Obviously, Trump got almost 3 million fewer votes than Hillary Clinton in the 2016 election. Clinton got about 48 percent of the votes cast for president. Trump got about 46 percent.

Kavanaugh will join the Supreme Court despite opposition from senators representing more than half the country, despite more than half the country opposing his nomination, despite being viewed unfavorably by nearly half the country and thanks to a president who is viewed with disapproval by more than half the country and who lost the popular vote.

Kavanaugh is the second nominated and confirmed by a minority, opposed by the majority. Who was the other? Neil Gorsuch:

And consider this further point. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

They are Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.

But I implore you to take a moment to be angry about all this, too. This is a severe legitimacy crisis for the Supreme Court.

The court, as Professor McMahon notes, was intended never to stray far from the mainstream of American political life. The fact that justices represented that mainstream and were normally confirmed by lopsided votes gave the court’s decisions their legitimacy. It’s also why past chief justices worked to avoid 5-4 decisions on controversial matters: They wanted Americans to see that the court was unified when it laid down a major new precedent.

But now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.

Remember, the Republican Party doesn't care about institutions, or what's good for the country as a whole. They care about power. And they are not giving it up without a fight.

Blaming the victim isn't new

It seems timely for me to dredge up this PSA I did for Hofstra Television in October 1991:

On later viewing, though, it seems to me like we still had trouble seeing that date rape was exponentially more common than random street rape. That said, I was pretty proud that HTV broadcast the video, from a script that we used in crisis hotline training.

Cast: Heather Maidat (Hofstra '94). Director: Sean Pearson (Hofstra '92).

It's deja vu all over again

The American Bar Association had concerns about Brett Kavanaugh 12 years ago:

Democrats for three years had been blocking President George W. Bush’s 2003 nomination of Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit. They argued he was biased, as shown by his work as a lawyer for Bush’s presidential campaign, for an independent counsel’s investigation into President Bill Clinton and for other conservative causes.

Republicans kept pushing to make Kavanaugh a judge on the powerful appeals court, year after year. In his defense, they cited multiple reviews by the ABA’s judicial review committee that found him “well qualified” — the big attorney association’s highest possible endorsement, meaning Kavanaugh had outstanding legal abilities and outstanding judicial temperament.

But in May 2006, as Republicans hoped to finally push Kavanaugh’s nomination across the finish line, the ABA downgraded its endorsement.

The group’s judicial investigator had recently interviewed dozens of lawyers, judges and others who had worked with Kavanaugh, the ABA announced at the time, and some of them raised red flags about “his professional experience and the question of his freedom from bias and open-mindedness.”

But the GOP hasn't been in favor of unbiased judges since...well, let's see, they're really only in favor when Democrats hold the White House. Interesting.

I fear they're going to get uglier before they're out of power. It's human nature.

Lots of reactions to yesterday's confirmation hearing

Brett Kavanaugh's hearing yesterday dominated the news. Here are some reactions:

Then, today, the committee voted along party lines to advance Kavanaugh to the whole Senate; Jeff Flake (R-AZ) and Lisa Murkowski (R-AK) demanded the FBI investigate the allegations; and protesters confronted Flake in the Capitol.

With friends like these...

Republican David Brock, who worked with Judge Brett Kavanaugh on the Clinton impeachment, urges the Senate to vote "No" on Kavanaugh's nomination:

Twenty years ago, when I was a conservative movement stalwart, I got to know Brett Kavanaugh both professionally and personally.

A detailed analysis of Kavanaugh's own notes from the Starr Investigation reveals he was cherry-picking random bits of information from the Starr investigation — as well as the multiple previous investigations — attempting vainly to legitimize wild right-wing conspiracies. For years he chased down each one of them without regard to the emotional cost to [Vince] Foster’s family and friends, or even common decency.

Kavanaugh was not a dispassionate finder of fact but rather an engineer of a political smear campaign. And after decades of that, he expects people to believe he's changed his stripes.

I can promise you that any pretense of simply being a fair arbiter of the constitutionality of any policy regardless of politics is simply a pretense. He made up his mind nearly a generation ago — and, if he's confirmed, he'll have nearly two generations to impose it upon the rest of us.

Meanwhile, it looks a lot like the Christine Blasey Ford held her own against what Josh Marshall calls "Grassley's Catastrophe."

We're 40 days from the mid-terms.