Monday, September 28, 2020

Making Up The Rules As The Game Unfolds

             The death of Supreme Court Justice Ruth Bader Ginsburg has been a huge blow to this country.  I say this, not because of her liberal-leaning rulings, but her outstanding character and personality.  Ginsburg was a brilliant, dedicated legal mind who fought ceaselessly for the rights of all individuals.  She was a pioneer in her field, a person who broke barriers and challenged injustice wherever it may be found.  Yet she always maintained a sense of decency, respect and cooperation for those who disagreed with her.  What a loss her death represents.

            Not surprisingly, the opening created on the Supreme Court is now the hottest topic in the nation.  Conservatives see this as a coveted opportunity to influence the Court in their favor, sensing a 6-3 majority that would almost certainly survive the possibility of one Justice going rogue over an issue.  Liberals, on the other hand, have felt for some time that they are on the verge of becoming voiceless.  Because the divide to this point has been 5-4 in favor of the conservatives, those on the “Left” have survived as best they could by relying on a “swing vote” from one of the more moderate Conservatives.

            It is a shame that judges, and especially Supreme Court Justices, are perceived to be conservative, liberal, or moderate.  I would prefer that we could toss those labels out with the trash.  But that will not happen in this polarized, tension-filled world we live in.

            I find myself extremely frustrated with our political system these days.  There is so much in need of overhaul.  The Supreme Court is yet another example.  Justice is to be blind.  It is to see only right and wrong, holding to the letter of the law, and casting decisions based on facts and evidence.  SCOTUS is to protect us from the excesses of politics and the bitterness of partisanship.  Such goals, however, are increasingly fading.

            With this in mind, we need to look at how justices are selected.  We all know the Constitutional protocol:  the President nominates a candidate; the Senate provides “advise and consent” by first holding a hearing on the candidate, then making a preliminary decision by the Judicial Committee, and then a full Senate vote.  This is not a perfect system, but I suppose it is as good as we will get.  Except, it doesn’t work that way.

            The most glaring example of abuse was in 2016.  Justice Antonin Scalia died unexpectedly on February 13, 2016.  President Barak Obama dutifully named a candidate after careful consideration.  Merrick Garland, a moderate who built a reputation of being fair and respectful, while managing to be void of political partisanship, was a perfect choice.  He should have been acceptable to a huge majority of the Senators.  I would go so far as to say Merrick Garland was an ideal choice who represents all that a good judge should be.

            Sadly, Garland did not stand a chance.  Because of the insane, democracy-denying rules of the U. S. Senate, such decisions are not made by the full Senate.  Rather, the Senate is run like a dictatorship.  The Senate Majority Leader, regardless of which party he or she belongs to, rules over the Senate with an iron fist.  This person can singlehandedly decide to kill any vote, any consideration, any resolution – in short, ANYTHING – he or she desires.  Nothing can come before the Senate without the consent of the Majority Leader.  As a case in point, the House of Representatives passed approximately 400 bills in the current session that have been sent to the Senate.  This includes the Heroes Act, a package intended to provide financial relief to families and the economy during the COVID-19 pandemic.  All of these bills, including the Heroes Act, have died in the office of Senate Majority Leader Mitch McConnell.  One man has decided he does not like them and so he refuses to allow them to come up for a vote.  This is not democracy.  This is a despot who unilaterally decides everything.  Its not just McConnell.  All of his predecessors, including Democrats Harry Reid and Chuck Schumer, held the same power.  This is a terrible injustice.

            I feel that McConnell was totally out of line in 2016 when he, and he alone, decided that he was above the Constitution and the President by refusing Merrick Garland from ever getting a hearing.  I said then that the Senate’s role is to “advise and consent”.  It is not to nominate.  But that is what Mitch McConnel did.  He assumed the power and authority of the Presidency by deciding that he did not like Garland and thus killed the process.  What Mitch McConnell did should be illegal.  It certainly was unethical.  But there is no one to hold him accountable. 

            The argument put forth from McConnell and every other Republican Senator was weak and inaccurate.  He claimed that it was the right of the people to weigh in through the election process.  In McConnell’s warped mind, if a Supreme Court vacancy occurs in the last year of a President’s term, the President has no right to nominate anyone.  It would be proper to wait until after the upcoming election to let the voters decide if they want a Republican or a Democratic President to nominate justices.  That person, then would have three years to nominate a replacement.  Of course, one could argue that the issue was already settled in 2012, when Barack Obama was reelected.  But that would not solve McConnell’s objective.

            Let us be perfectly clear:  The Constitution does not say anything that remotely sounds like this.  To follow the Constitution to the letter, the President must nominate, and the Senate must weigh in through a vote.  That’s it.  I felt at the time that President Obama was correct in making a nomination and the Senate was obligated to vote on it.

            Now, four and a half years later, Justice Ginsburg has died and another opening has arisen.  In keeping with the argument above, I would feel that President Trump has the right to nominate a replacement, and the Senate must consider it.  Except for one thing.  Mitch McConnell changed the Senate rules in 2016.  A democracy, even with all of its flaws, must function in an orderly and consistent manner.  I think the Senate rules stink, but rules are rules.  Because McConnell is committed to the principle that a President should not make a nomination to the Supreme Court in the last year of his current term, therefore Trump cannot make a nomination.  What is good for the goose is good for the gander.

            Now, Mitch, being Mitch, cannot live with consistency.  He routinely makes up new rules to meet his agenda whenever necessary.  So, Mitch enthusiastically welcomed Trump’s nomination and committed himself to pushing it through with all haste.  The problem here is that McConnell has already gone on the record saying no President should nominate a Supreme Court Justice during the last year of their term in office.  But now, McConnell is doing his McConnell thing and creating yet another new rule.  This one says that the previous McConnel doctrine only applies when the White House is controlled by one party and the Senate is controlled by the other party.  Once again, there is nothing in the Constitution to even hint of this.  But McConnell never claims to work according to the Constitution.  A new rule for a new scenario.  It is interesting that he did not use this argument in 2016.  But again, he did not have to, because he is not answerable to anyone.  Anything that will promote the Will of Mitch is acceptable.

            As expected, all the little Republican Senators who mindlessly follow The Mighty Mitch nod their heads in agreement like a bunch of bobblehead dolls.  Those who were in the Senate in 2016 approved of Mighty Mitch’s man-made rules then, and obediently approve of his newest rule now.  Like little robots they all claim this is the way it has always been.  But they are wrong!

            Admittedly, what we have here in 2020 is an unusual case.  The death of a Supreme Court Justice so close to an election is a rare thing.  It is not unique, though.  To do a full investigation one needs to go back to the beginning of the Republican Party.

            The year was 1864.  Abraham Lincoln was President of the United States.  Lincoln was the first Republican President in the history of the country.  In fact, the Republican Party was only10 years old, forming in 1856 in opposition to slavery.  The Election of 1864 was approaching, and the Civil War was winding down.  Then something happened that must have rocked the country.  Roger Taney, the Chief Justice of the Supreme Court, died with a mere 27 days remaining before the election.  It should be noted that Lincoln was a Republican President, and the Senate was clearly controlled by the Republicans with a 37-9 super majority.  Think about this:  the same Party controlled both the White House and the Senate when Taney’s death created a vacancy on the Supreme Court just 27 days before the election.  The only difference between then and now is 18 days.  Ruth Bader Ginsburg died 45 days before the election, instead of 27.  However, unlike 1864, the election is already underway today.  Early voting is taking place.  Ballots are being cast.

            The fascinating thing is that Lincoln decided not to nominate a replacement for Taney until after the election.  I do not know why he made this decision, but he did.  So here we have a prominent precedent:  A Republican President, with a Republican Senate, refusing to nominate a replacement for the Supreme Court vacancy that arose within 27days of a Presidential election.  I am sure Mitch McConnell is aware of this.  In fact, McConnell fabricates his own sense of history whenever it is convenient for him.  Consider this portion of research from the Brookings Institute in response to The Mighty Mitch’s 2016 claim supporting his decision to deny President Obama’s nomination of Merrick Garland, when the Majority Leader said, “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”  Hey, Mitch, what “long-standing tradition” are you referring to?

 


“There is no such tradition. The table shows the nine Supreme Court vacancies in place during election years in the Court’s post-Civil War era—once Congress stabilized the Court’s membership at nine and the justices largely stopped serving as trial judges in the old circuit courts. Those nine election-year vacancies (out of over 70 in the period) were all filled in the election year—one by a 1956 uncontested recess appointment and eight by Senate confirmation.”

Vacancy

Date

Cause

Nominee and Nomination Date

Conf. date

Vote

Unified or Divided

Party Control of WH

and Senate

Woods

5/14/1887

Death

Lamar (12/6/1887)

1/16/1888

32-28

D (39-37)

Waite

3/23/1888

Death

Fuller (4/30/1888)

7/20/1888

41-20

D (39-37)

Bradley

1/22/1892

Death

Shiras (7/19/1992)

7/26/1892

Voice

U (47-39-2)

Harlan

10/14/1911

Death

Pitney (2/19/1912)

3/13/1912

50-26

U (52-44)

Lamar, J.

1/2/1916

Death

Brandeis (1/28/1916)

6/1/1916

47-22

U (56-40)

Hughes

6/10/1916

Resignation**

Clarke (7/14/1916)

7/24/1916

Voice

U (56-40)

Holmes

1/12/1932

Health

Cardozo (2/15/1932)

2/24/1932

Voice

U (48-47-1)

Minton

10/15/1956

Health

Brennan (10/15/1956, recess appointment)

D (48-47-1)

Warren*

Fortas (6/26/1968)

None

U (64-36)

Fortas*

Thornberry (same)

None

Same

Powell

6/26/1987

Health

Bork (7/7/1987, failed)

42-58

D (55-45)

Kennedy (11/30/1987)

2/3/1988

97-0

Same

Scalia

2/13/16

Death

Garland (3/16/2016)

None

D (54-44)

Ginsburg

9/18/20

Death

U (53-47)

* No actual vacancies. Incumbents hinged their vacancy creation on their successors’ confirmations.
** Hughes became a presidential candidate.

 

Source:  https://www.brookings.edu/blog/fixgov/2020/09/24/mcconnells-fabricated-history-to-justify-a-2020-supreme-court-vote/

 

One has to wonder what tradition McConnell was referring to in 2016.  Obviously, he was making things up to benefit his agenda, as always.  Of course, it is not just McConnell.  Lindsey Graham is just as bad, if not worse.  Graham said in 2016 that he did not care if a Republican or a Democrat held the office of President, it would be wrong for that person to nominate a Supreme Court Justice in the last year of his term of office.  Graham went so far as to say people can use his words against him if he ever violated that principle.  But now, as Chairman of the Senate Judicial Committee, Graham has vowed he will push any nomination through as soon as possible.  OK, Mr. Chairman, we will use your words against you!  Oh, by the way, Graham and McConnell are both up for reelection this year!


G. D. Gehr

9/28/2020

Wednesday, September 2, 2020

Seven Suggestions to Simplify Our Elections

 

            With Election Day 2020 drawing near, I have been giving thought to the way in which we choose our political leaders in this country.  We have a good system, but it has room for improvement.  Certain things, in particular, tend to annoy me.  I do not have a degree in political science.  Neither do I know much about the law.  In fact, I do not know much about anything, to be honest.  But I still have a few thoughts that I am willing to share, knowing full well that I am just spitting into the wind.   So I will take my chances and humbly offer these seven suggestions.     

1.   1.  First, and Foremost, I am not a big fan of the Electoral College.

For a country that claims to be a democracy, I find it odd that we cannot choose our President.  We can only choose “electors” – a very small number of people who are supposed to be much smarter than we are – who in turn will choose the winner of the Presidential election.
We have about 328.2 million citizens in this country, yet we allow a mere 538 of them decide who will be President.  That is about 1.6 % of the nation deciding who will lead us.
Now, I know some will say, “So what?  We still decide who the electors will be, so in fact, we make the decision.”  Well, not really.  Here are just a few of the problems with the Electoral College.

a.       The concept of 1 person = 1 vote does not hold true. 
Of the 50 states in this country, only one has the same percentage of citizens in comparison to the nation, as they have electors.  That is the State of Washington, which has 2.23% of the nation’s population, and 2.23% of the Electors.  Of the remaining 49 States, 18 have a slightly higher percentage of the population than they do the Electors, while 31 share a higher percentage of electors than their population.  As a general rule, the States with the highest populations tend to be slightly under-represented in the Electoral College.  Conversely, those States that have the least amount of people are disproportionately over-represented.  I believe the primary reason for this is because every state, regardless of its population, is granted two Senators.  Probably the fairest way to assign electors would be to use the number of House seats and skip the Senate seats.  For example, Pennsylvania has 18 members in the House of Representatives.  So, rather than granting Pennsylvania 20 Electors (18 for the House and 2 for the Senate), grant them 18, because that number is rooted in the population.

b.      There is also the problem with how the varied states control the electors.  It seems to me that it would be fair to assign electors proportionately according to the popular vote.  If a candidate wins the popular vote in a state by, say, 52%, he or she should get 52% of the electors.  The remaining electors should be awarded to other candidates in the same way.  However, I believe this is only done in two states – Maine and Nebraska.  In the remaining 48 states it is a winner-take-all stakes.  Thus, a candidate could, potentially, win the state by 1 vote but walk away with all the electors.  That is not my idea of democracy.

There is a movement under way known as the National Popular Vote compact.  It would make the electors of a state vote for the candidate that won the national popular election rather than the popular election within the state.  The National Popular Vote compact is approved by individual states.  At this point, 15 states have joined the movement, representing 196 electoral votes of the needed 270 to win.

c.       This may seem a bit trivial, but in the case of a really close election I want to see each vote count.  Five times in our history a candidate lost the popular vote but still was named President by the Electoral College.  The first time was in 1824, when there were four candidates running, all members of the same party, but no one had enough votes to be declared winner.  According to the 12th Amendment, the House of Representatives must then decide the winner.  John Quincy Adams proved to be the successful candidate.

Interestingly, in the remaining four occasions, the Republican candidate always ended up losing the popular vote but winning the electoral college and thus was declared winner.  I don’t know if that means anything, considering that the two parties have changed over the years.  But I still am fascinated by it.

d.      What makes this especially concerning now is the fact that this has happened twice in the past five elections.  It feels like the more polarized and partisan we become as a nation, the less effective our electoral process is becoming.

There are some good arguments for and against the Electoral College system.  For me, I believe its time has expired.  I say, eliminate it.  One resource I really like is Ballotpedia.com.  You can check it out here: https://ballotpedia.org/Electoral_College

2.      2.  Gerrymandering.

The practice of drawing Congressional districts has long been abused.  I am not sure how it is done in other States, but in my home of Pennsylvania, a separate five-member committee is created to map out the districts once every ten years, immediately after the most recent census.  The committee consists of the Majority and Minority Leader in both the State House and Senate, plus one additional person selected by these four.  The fifth member is the Chair.  Typically, the Chair is a member of the Majority Party, which means this Party has an advantage in deciding the map. 

Gerrymandering is the name given to creating disjointed, odd-looking districts designed to favor one party over the other.  This is especially seen in the Pennsylvania Legislature.  Among registered voters in PA, 48% are Democrats, 39% are Republicans,  8% are Independent, and 5% are members of other parties.  Yet in the Pennsylvania House of Representatives there are 109 Republicans and 93 Democrats.  In the Senate there are 28 Republicans and 21 Democrats.  Each chamber currently has one vacant seat.  These ratios have been extremely consistent over the past 30 years.  For example, in 1992 the Senate was evenly divided with 25 members from each Party.  Beginning in 1994 The Republicans have always held a decided majority.  The House has similar results, with the exception of 2006 and 2008, when the Democrats held a slim majority.  Meanwhile, the Governor’s office was in Democratic hands for 17 years since 1992, and Republican hands for 12 years.  This suggests a disconnect between the way the districts are drawn compared to the entire Commonwealth.

I do not really have the solution for overcoming gerrymandering.  It would require a major overhaul of the entire State government.  Because Pennsylvania is a Commonwealth, rather than a State, the individual counties are given a little more autonomy than in some States.  County lines do not change.  Therefore, I am inclined to suggest that electoral districts should be somehow drawn around county lines.  In other words, no district should exist by claiming a portion of two or more counties.  The counties of Philadelphia and Allegheny (Pittsburgh) will no doubt need to have multiple districts, and I will need to think that through a bit.  But none of those districts should include any area outside their respective counties. 

The goal should be to more accurately reflect the entire population when preparing representation.  Pennsylvania was forced to redraw their districts recently following a court decision, and it is much better now than it was.  Still, the problem remains that this can change following the 2020 Census.

3.      3.  Make Election Day a National Holiday.

Finding time to vote while working full time can be problematic for some, depending on how many polling stations there are compared to the number of voters.  In recent years some places have experienced tremendously long and frustrating waits just to cast a vote.  If Election Day were a Federal holiday, the wait time may be the same, but the tension may lesson.  Good grief, Columbus Day is a Federal holiday, but Election Day is not!  I mean, give me a break!  This makes absolutely no sense.

Along this same line I personally would like to see the primary election held the same day throughout the entire country.  The current practice invites a longer, drawn-out process.  Our legislators should do their job of legislating, rather than campaigning.

4.      4.  Limit the Election Season

I am really frustrated with the long, drawn out election process in this country.  I am referring primarily to national elections.  A Presidential campaign typically last about two years these days.  It takes at least a year to run a primary campaign, and the better part of another year for the actual election.  This is way too long.  A candidacy should not be allowed to be announced until perhaps January of the election year.  I would even prefer waiting until March 30th, but that is unlikely.

The current system heightens frustration and causes a mental shutdown on the part of many.  We simply cannot bear the overload of political banter.

5.      5.  Get Money Out of Politics

According to the Washington Post the 2016 Election cost a total of $6.5 billion.  Let that sink in for a minute.  $6.5 billion!  Does anyone think that money could have been spent more effectively?  I would prefer if all political campaigns were publicly funded.  The way it is now, the one who raises the most money stands the best chance of winning.  There is nothing democratic about that.  Many people are concerned about foreign interference in our election process, and rightly so.  It is a proven fact that foreign powers seek to influence the outcome in a way that favors them.  That is extremely dangerous.  Equally dangerous is the practice of buying an election.  We are not a plutocracy.  Or at least, we are not supposed to be.  The reality, however, reveals that we are.  Somehow, we must come up with a plan where candidates are given a set sum of money to work with.  I admit, this needs more thought.  The downside is that taxes will likely increase a bit to pay for it.  But I am convinced it would be worth it.  If candidates did not need to raise money to finance their campaigns, I am sure there would be less lies and less exaggerations intended to appeal to the donors.  Furthermore, money breeds corruption.  Big time donors who help a candidate get elected by dangling huge sums of money their way expect that “their” candidate will dance to their tune.  In other words, the person holding the money might as well be the same person holding the office, because they have set themselves up to possess tremendous influence over their candidate.

6.      6.  Rescind Citizens United

Citizens United is the natural result of campaign spending run amuck.  This Supreme Court decision may have done more to destroy our system than anything else.  It is totally sinful to think of the sums of money raised by these Super-PACS, with essentially no accountability.  Whenever huge sums of money are allowed to be used without oversight, corruption is inevitable.

7.      7.  Eliminate the Party Conventions

I will say this for the coronavirus:  it has taught us to think differently.  Political conventions are a total waste of time and money.  They are nothing more than outlandish pep rallies and, I suspect, drunken madness.  Continuing on the thought that there is too much money in politics, I suggest we downsize the conventions, conduct them virtually, and simplify things.

So there you have it.  Seven Suggestions to Simplify Our Elections.  Much more needs to be said.  This is intended to be nothing more than a starting point for discussion.  I would look forward to hearing your thoughts and suggestions.  I believe we need to constantly be evaluating ourselves and seeking to improve the way we do things.  Anything less is surrender.

 

 G. D. Gehr

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