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What Biden should do with a reactionary, radical Republican Supreme Court

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The first thing Biden should do as president (should he win) is to announce that he will not permit a cabal of rightwing religious fanatics on the Supreme Court to tell Americans what they can and cannot do.

Nowhere in the Constitution does it say that the United States Supreme Court has the power to undo what the Congress has done. The relevant clauses in our Founding Document are found in Article III. There, Section 1 simply says “the judicial power of the United States shall be vested in one Supreme Court.” It does not specify what “judicial power” means. Section 2 defines the scope of the Supreme Court’s oversight: foreign treaties, disputes between states and so on. And that’s it. Nowhere does the Constitution come even close to saying that the Supreme Court can overturn or nullify a Federal law, such as those permitting same-sex marriage or a woman’s right to choose to terminate her pregnancy.

Why, then, do we assume the Supreme Court has that right? Because of the “doctrine of judicial review.” That stems from an 1803 SCOTUS decision, written by then-Chief Justice John Marshall, in a case called Marbury v. Madison. The details of the case don’t matter; what is of relevance are Marshall’s words: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”

“Emphatically the duty…”. That makes judicial review sound like it was always there in the minds of Jefferson, Madison, Adams, Franklin and the other Founding Fathers, but it wasn’t. The country automatically assumes that because Marshall said the Supreme Court could invalidate Congressionally-approved, Presidentially-signed laws, it could.

But Democrats can follow the Trump playbook in challenging any and all precedents. Trump invented that game; Democrats were caught by surprise. How could he do that? They asked. He could, and he did. Now, if they take power, Democrats can do the same thing. Who says Marbury v. Madison was handed down by God carved onto stone tablets? It wasn’t. It was something this country followed for a long time. Soon, it will be time for a change.

If Coney Barrett is confirmed this Monday (of course, she will be), the future of the Affordable Care Act, of Obergefell (which legalized gay marriage) and of many other laws we thought were decisive and here to stay, will be at risk. Normally, we might say, “Well, I don’t like these Republican Justices, but that’s our system. We have to respect their rulings, and then try to elect Democratic Presidents who will uphold our values.” But these are not “normal” times. In fact, normalcy ended when McConnell blocked Merrick Garland’s appointment to the Court by Obama. That was the most flagrant, egregious thing the Senate has done in my lifetime concerning the Supreme Court; with that declaration of war, McConnell said in effect that all precedent had come to an end. Democrats therefore—if they take power—are fully justified in playing by those same, Republican rules.

Let us suppose, as seems likely, that shortly after the election, the Supreme Court, now with Coney Barrett, overturns the Affordable Care Act. Trump, if he loses, will still have two months in office, so we can expect him to indulge in a frenzied cycle of rulemaking or executive orders by which he will quickly and thoroughly dismantle Obamacare, throwing up to 30 million Americans off their healthcare insurance. The Congress will be in a tizzy, with both sides holding hearings, screaming bloody murder and accusing the other side of bad faith. The result of that turmoil will be that very little will get done concerning healthcare by the time Biden takes the oath of office, on Jan. 21, 2021. That’s when he should announce, in his very first presidential statement, that, while he fully intends to honor Marbury v. Madison and uphold the Supreme Court’s authority, he will not throw tens of millions of Americans off their healthcare immediately, because to do so would cause havoc and be ruinous to the national security.  Instead, Biden should say he is immediately ordering the relevant Congressional committees to begin studying a replacement for the (now illegal) Affordable Care Act.

That process will take a lot of time, maybe a year. In the interim, Biden should declare, via Executive Order, that he is continuing the Affordable Care Act in all its details, until such time as a replacement law is enacted. That will mean (a) Obamacare will continue uninterrupted, and (b) Republicans will howl that Biden is attempting a coup against the Supreme Court. Let them howl. There will be nothing they can do about it. The Congressional committees, now led by Democrats (let’s assume Dems retake the Senate and keep the House) can take their time. Whenever Republicans complain, Democrats can reply that it’s important to get a replacement law right, and for it to be in compliance with whatever the Supreme Court found wrong with the Affordable Care Act. In such a way, President Biden can sidestep the Supreme Court without actually defying it. I think the American people would understand that, and support him.

Of course, Governors in red states might say that they are supporting the Supreme Court decision and immediately ending Obamacare. That’s fine. Let them. That’s for the citizens of Alabama, Oklahoma, the Dakotas, etc. to deal with. When Granny loses her dialysis, when Junior can’t be covered by his parents’ healthcare insurance, when the death rates start climbing, they can ask themselves if this is what they expected when they voted Republican. We will then have a completely unsustainable two-tiered system of healthcare in America; full resolution of the issue will have to be punted for another day. But in the long run, this is not a good issue for Republicans.


Why would any decent Catholic remain in that church?

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The LGBT community is understandably upset about Coney-Barrett’s impending entry onto the Supreme Court.

A well-known Christian/Catholic fanatic, Coney-Barrett will join her fellow haters, Clarence Thomas and Samuel Alito, in forming a solid triad that would punish homosexuals and take away all of their hard-earned rights. Nearly as fanatical are Neil Gorsuch (who’s shown signs of having a bit of compassion and sense of justice) and the Chief Justice, John Roberts, who despite a reputation for fairness, wrote a shockingly hateful dissenting opinion in Obergefell v. Hodges (2015), the SCOTUS decision that legalized same-sex marriage. Roberts—a professed Catholic like most of his Republican colleagues—had the gall to write that “government” had a compelling interest in preserving man-woman marriage. He implied that children cannot be reared by same-sex couples, and used the tired old conservative slur of comparing same-sex marriage to “polygamy.”

Well, this is a perfect example of Catholic Justices obeying orders from the Vatican. The Catholic Church continues to peddle their official hate policy in declaring homosexuality “intrinsically immoral.” This, despite the Pope’s remark, “Who am I to judge?” when asked about gay relationships, and despite the embarrassing and humiliating fact that the same Catholic Church is going bankrupt because it’s had to pay so much money to victims of rapacious pedophile priests. If ever there was an organization that was morally unfit to pronounce on gay issues, it is the Catholic Church.

So the fear is that when the religious fanatic, Coney-Barrett, gets on the Court, one of the first things she’ll do is try to overturn Obergefell, thereby removing a right that has already been granted to Americans. This possibility, or likelihood as the case may be, is causing mounting concern in LGBT circles. People rightfully fear a return to the bad old days of persecution. Will gay people still have the right to marry? Will they be able to adopt children, visit their spouses in the hospital, be included in wills? For that matter, will Coney-Barrett move to remove all protections from gays? Will homophobic employers be able to fire gay people at will simply because they don’t approve of their “lifestyle”? Will landlords be allowed to evict gay people just because they hate them?

These are legitimate questions. It is, of course, useless to try to argue with the likes of Coney-Barrett, Alito and Thomas. They have, not so much “minds” capable of rational analysis, but a hardcore accretion of personal resentments and calcified religious superstitions. There’s nothing more frustrating with arguing with a bible thumper, because they’re convinced that “god” is on their side. It says in the bible that homosexuality is wrong. Never mind that it also says adultery is an abomination (hello, Donald Trump and Jerry Falwell Jr.), that striking one’s parents and violating the Sabbath (as, for instance, by driving a car) deserve the death penalty. These bible thumpers conveniently ignore those shocking stupidities and focus selectively on the bible’s gay injunctions.

Gay people, and the people who love them, must therefore figure out what they’re going to do when and if Coney-Barrett brings her sexual psychopathy to the Court. The first thing that comes to mind is that we’re going to take to the streets in massive numbers, and it can’t be just a one-time “Defend Gay Marriage” march in American cities. That would receive widespread media coverage, but would be forgotten the next day as the avalanche of Trump-related weird news continues unabated. We’re going to have to take to the streets in every town and city in America, especially in conservative parts of the country, and most particularly in the places where evangelicism rules. We’re also going to have to take this to the Catholic Church. Churches are going to have to be picketed on a regular basis, services disrupted, acts of civil disobedience committed. If someone says, “Why are you picketing the church when it was the Supreme Court that made gay marriage illegal?” we answer, “It was fanatical Catholic gay bashers on the Court who made this decision. We’re simply bringing the fight to those who started it, a sclerotic religious cult that has been killing ‘witches’ [read: Lesbians and gay men) for centuries, while their nasty priests feed off little boys.”

It must be super-difficult to be Catholic these days in America. Most Catholics, I would hope and expect, are “liberal” in the sense of understanding that gay people can’t be kept in the closet anymore, that they are entitled to the same rights as straight people. Catholics are split pretty much evenly when it comes to political party affiliation, with about half claiming to be Republican and half to be Democratic. I suppose the Republican Catholics have no problem condemning gay relationships and would be happy to see gay people persecuted the way they used to be. We can write off those conservative Catholics; they’re beyond reasoning with. But what of the 48% of American Catholics who vote Democratic? They must have a conscience. They understand how wrong it is for their church to say gay people are “immoral” simply by virtue of whom they love. And yet they continue to support this overbearing church, tithing their money to it, going to services, having their children baptized. What would it take for millions of these fair-minded Catholics to cut the cord? I know how much they love their church, and the fear of being separated from it must be torment. Still, by remaining part of the Catholic Church, they succor and support an organization only slightly less vicious than the Taliban when it comes to persecuting gays. If I were Catholic, I’d quit the church. I wouldn’t want to be associated with such hatred and hypocrisy, and I think that God would forgive me, since the Catholic Church has nothing to do with God any longer, if it ever did.


He’s freaking out

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He’s really desperate, isn’t he? Trump, I mean (obviously), reading the same polls as you and I or, possibly, reading his private internal polls, which might well be even worse for him than the public ones. He sees himself losing in every swing state—and possibly losing in such rightwing stalwarts as Texas! He sees, moreover, “his” Republican Senators looking at a blowout, a Blue Tsunami that will give both Houses to President Joe Biden. And then, Trump is looking, post-presidency, at the very real threat of prison time, not to mention the collapse of his tottering business empire, and the ruination of the only people on earth he cares—a little—about: his family.

Of course, this is why he’s so maniacally driven on getting the arch-Catholic Coney-Barrett confirmed. She is, in his estimation (and you’ll pardon the pun), his trump card on the High Court. He’s gambling (I’d say “praying,” except that he’s an atheist) that “his” Republican Justices will exonerate him from anything and everything. They’ll award him “his” presidency after a “contested” election in which no one but he and his acolytes is contesting anything other than the legitimate result. Looking back to 2000, Trump believes that the Republican Justices signaled, for all time to come, that justice be damned, they’re going to protect the hand that fed them their august office; and if it was true in 2000, imagine how truer it is today, when not jurisprudence but religious (that is to say, radical Catholic) ideology rules the benches.

We’ll see. Supreme Court Justices have the decided advantage of holding office for life. They may have made certain, ahem, private assurances to the President during their interview process; but once on the High Court, they can do whatever they wish to. Even fanatics like Coney-Barrett, Alito and Clarence Thomas may feel the glint of Honor in their bones. (Well, probably not Thomas, but you get the idea.) There is thus no absolute guarantee that the Supreme Court will give Trump a victory, should he lose the election decisively and fairly. But there is also no guarantee that Trump will lose the election, or that Biden will win it, despite the polls. So we still have go vote, if we have not already done so,

Trump’s hopes are dwindling but in his head there are a few things that could revive them. He could win the Nobel Peace Prize, just days before the election. (I don’t think he will, but you never know.) He could announce a vaccine for COVID-19. He can brag about some putative “victory” in Afghanistan or someplace else. With luck, none of these things will occur before election day or, in the case of the Nobel, ever. Even without those bragging rights, Trump can still hope to convince some wavering, mentally unstable voters that “Crooked Hillary” remains a menace, that Biden and Obama must be “indicted” for committing the greatest crime in U.S. history, that Democratic Governors like Whitmer and Newsom are unConstitutional threats. All of this is nonsense, of course. Nobody could possibly believe any of it, except pervs like the Proud Boys (it annoys me to have to capitalize those words), and how fortunate it is that Trump’s own F.B.I. thwarted the treason which the Wolverine Watchmen (another forced capitalization) planned to pull off in Michigan. Republicans will, of course, echo Trump’s tweet that since it was “his” F.B.I. that busted the plot, how could he, Trump, possibly have aided and abetted it? But this, too, is nonsense. All it does is reassure us that at least a part of the F.B.I. is still doing its job, not propping up a criminal President, as is the man whose Justice Department runs the F.B.I., Robert Barr. But then, Trump loathes the F.B.I.’s director, Christopher Wray, whom he just accused of being a part of the “Deep State” along with Hillary, Biden and Obama.

Trump always seems to have done the lowest, basest thing possible, than which there can be nothing lower or baser, until a day or two later, when he manages to be even more vile. Can he seriously be contemplating launching a civil war? Of course. He has maniacs–white men all–like Stephen Miller, Sean Hannity, Steve Bannon and Franklin Graham whispering in his ear. “This is the time to do it, Mister President. Strike while the iron is hot.” His two male older spawn, Eric and Donald, Jr., also are urging him to “do it,” and waiting in the wings to step in should he falter. Field Marshall Donald Trump, Jr.! There’s a howler. I can see the Ruritanian Generalissimo now, bedecked in Kaiser Wilhelm-style military garb, complete with golden sashes, medals and ermine-lined red cape, a gilt sword in his hand—the same hand that slaughtered great innocent beasts on the plains of Africa. But what shall the “Heil Trump” gesture be?

It’s fun for a satirist to have this First Family. The late night talk show hosts are having a marvelous time. But beneath the fun-poking is genuine alarm. Trump told the Proud Boys to “Stand by.” We, too, have to stand by. Arms at the ready! Shore leave canceled! Keep your powder dry! We may be called upon soon to be heroes.


God loves America

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Oh my name it ain’t nothin’
My age it means less
The country I come from
Is called the Midwest
I was taught and brought up there
The laws to abide
And that land that I live in
Has God on its side

Bob Dylan

The British journalist Robert Fisk, in his epic “The Great War for Civilization: The Conquest of the Middle East,” describes an interview he conducted in 1993, in Abu Dhabi, with a man named John Hurst, who was a vice president of the American arms dealer, Lockheed Martin. Hurst was representing his company at an international munitions exhibition—tanks, missiles, body armor, that sort of thing—where military officials from around the world were buying weaponry from arms sellers around the world. Hurst, who had earlier worked on developing the Pershing II nuclear ballistic missile, was now selling Lockheed’s Hellfire ground-to-air missile to “friendly” countries like Saudi Arabia and the United Arab Emirates—yes, the same UAE that recently partied with Trump at the White House.

Fisk had seen, as he writes in his book, “thousands” of dead, torn and mutilated bodies during his years covering the Middle Eastern wars (and he was to see lots more in the years that followed). Appalled, he asked Hurst, respectfully, about “the morality, or immorality, of his work.” After all, Hurst’s descriptions of the Hellfire’s “percentages and development costs and deals” essentially “stripped (it) of politics and death.”

Hurst was thoughtful, Fisk writes. “I’ve had great debates (about that),” he replied. “On a religious basis, too.” He went on to explain his point of view. “I’m a very strong Christian. I’m Episcopalian. You can look through your entire New Testament and you won’t find anything on defending yourself by zapping the other guy. But the Old Testament, that was something different. There’s plenty there that says God wants us to defend ourselves against those that will strike us down. In the New Testament, it says the Lord wants us to preach his Gospel—and we can’t very well do that if we’re dead. That’s not an aggressive posture…the guy that wants to hurt me has to think twice…the Lord wants us to defend ourselves and arm ourselves so that we can spread his Word.”

Yes, an eye for an eye, in the name of Jesus. And there you have it: the basis for American defense [i.e. killing people] policy in the 1990s, according to Lockheed Martin, was so that America could spread Christianity throughout the world, especially in the Muslim Middle East.

Do you need me to point out the insanity of Hurst’s statement? At the very moment he was making it, Osama bin Laden was living not far away, in Sudan, planning his expansion of Al Qaeda into a terror organization. That same year would come the first bombing of the World Trade Center, as well as the ambush of U.S. soldiers in Somalia (“Black Hawk Down”), both attacks planned by bin Laden. And eight years later, of course, came World Trade Center attack #2.

And how was bin Laden justifying his attacks? “God willing, our raids on you will continue as long as your support to the Israelis will continue.” And here is what he said a few weeks after Sept. 11: “There is America, hit by God in one of its softest spots. Its greatest buildings were destroyed, thank God for that.” Can the Hursts of this world not see the irony? Hurst—echoed by U.S. Presidents—insists God is on America’s side and America is thus justified in using weapons of mass destruction against its enemies. Bin Laden insists God is on the side of the Muslims, who thus are justified in using their own forms of weapons of mass destruction to use against us. And so it goes, round and round, an insane, out-of-control merry-go-round of death, spiraling out of control.

What I’m writing here has little or nothing to do with America’s national interests. Perhaps we do sometimes have to fight “just” wars. We were right to defend ourselves after Sept. 11, and after Pearl Harbor as well. I’m not a rigid pacifist. But can we please move away from this silliness about “God”? People have differing understandings of God. No one’s view of God is better, truer or realer than anyone else’s. That should be obvious to any rational person. As soon as someone insists his “God” is the one, true God, and the other person’s “God” is a fake, we should move away from that person and not listen to him anymore, because he’s suffering from a mental condition. Yes, that includes, especially at this current time, idiots like Franklin Graham and Jerry Falwell, Jr., who happily no longer is around to plague us because his “God” failed to warn him that having polyamorous sexual affairs would get him in trouble. And this also includes, more than anyone else, the imposter Donald Trump, a lifelong agnostic who, having discovered what useful idiots evangelicals are, never fails to hoist up Bibles (upside down) and claim they’re his favorite book.

It’s people like this—the militant preachers, the sociopathic politicians—who keep getting us into trouble. This election is about a lot of things, but to my mind one of the biggest is that it represents a chance to begin to isolate these warmongering religious frauds. If we can’t get rid of them entirely—and I guess we can’t—we can at least make them irrelevant.


Is 2020 the new 1939?

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Today is an emotional down day. Polls tightening everywhere. 538 has Trump’s disapprovals shrinking, his approvals ticking up, amidst reports he’s making inroads with college-educated white and Latinx voters. Today’s Chronicle has a headline “Independents veering to GOP.” Anecdotes say Trump’s threat that Antifa will invade the suburbs is working. The anti-mask, “COVID is fake news” movement is spreading. The crowd booed the “Moment of Unity” at the Texans-Chiefs game. All bad omens. Meanwhile, where is Kamala? She’s become the invisible candidate. And while they’re getting Biden out there, and he’s saying the right things, he still—to me—seems wobbly. I’m not sure I’m looking forward to the debates.

Of course, I have to take this depression in context. After six months of shelter-in-place, my mental state is increasingly haggard. The air this morning in Oakland is the worst in a week—which is saying a lot. As soon as I woke up, I wondered who the hell was barbecuing at 6 in the morning? It wasn’t barbecue: it was smoke, thick and acrid. Like everyone else in this situation, I don’t know whether to stay in the house all day—with the windows shut–or put on my mask and venture outdoors to stretch my legs. It’s damned if you do, damned if you don’t.

Four years ago, Trump’s impending victory (I knew it was coming) landed me in the hospital with heart valve trouble, brought on by stress and worry. This time, I’ve vowed not to let it happen again. Maybe, on some subconscious level, I’m preparing myself for a Trump win, so that when/if it happens it won’t catch me by surprise. If he does win, I ask myself, what do we—Democrats and anti-Trumpers—do? Take to the streets? Give up? Keep on keeping on? I don’t know. And in that uncertainty, all the creepy things in my feral imagination crawl out: after Trump’s second term comes Don, Jr. Or maybe Ivanka. Or Jared, building on what increasingly looks like his successful Middle East intervention. Or maybe collective Trump family leadership. Are we looking at decades of Perons, I mean Kims, I mean Assads, I mean Trumps? What does that even mean? They continue to stack the courts with Kavanaugh-type rightwing judges. Hitler did the same thing. One of the first things he did, on becoming Chancellor in 1933, was to institute Gleichschaltung, the “reorganization” of German culture and society into the Nazi mold. That was bad news for German liberals, socialists, Communists, artists, trade unionists, and of course Jews. The actors change, but the plot remains the same.

I had a dream last night—actually, it was in the hypnagogic period before the onset of full sleep—in which Trump was in charge of everything, and he ordered his MAGA troops to arrest undesirable elements. They came for me. I suppose reading, in The Great War for Civilization, of Saddam Hussein’s murder squads rounding up and slaughtering Kuwaitis, Shiites and Kurds in the aftermath of the Gulf War, when we allowed his Republican Guards to escape and regroup, made me jumpy. Saddam didn’t want to give up power, and he was really pissed at what he thought were his enemies, whom he proceeded to eliminate as ruthlessly and efficiently as the West allowed him, which was completely. Trump too doesn’t want to give up power. And he really, really hates his enemies—Democrats, liberals, LGBTQ people, environmentalists, human rights activists. And his own Republican Guard—an increasingly strong, restive internal militia—would, I think, have as little interest in keeping me alive as Saddam’s thugs had in allowing Shiites and Kurds to survive. That was the sum and substance of my dream. And it was, needless to say, scary.

Frank Figliuzzi, a former Assistant Director for Counterintelligence at the F.B.I., told Nicolle Wallace on MSNBC that “2020 will go down as the year the truth died.” 1933 was the year that truth, and democracy, freedom and sanity, died in Germany. If 2020 really is the death of truth in America, then we are in for a very tragic time. But, hey, maybe this is just my boredom and depression, worrying about nothing. Let me look at the positive side. Don’t worry, be happy! (insert happy face emoticon)


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