Sunday, October 21, 2018

Our Melting Pot Identity: Elizabeth Warren Edition

Elizabeth Warren was born in Oklahoma City, Oklahoma and grew up in Norman, Oklahoma, home of the University of Oklahoma. We still relate to it as Indian territory, the terminus of the Trail of Tears. This week Warren released a presidential campaign-style biography introducing herself to the country. The video discusses DNA evidence confirming family lore of an American Indian ancestor on her mother's side of the family. Her video aims to neutralize political attacks arising from the fact that she checked a box  describing herself as a "minority" in a law school directory, and was touted as a Native American faculty by Harvard University in the mid-1990s.

One aspect of our American identity is that we are a melting pot. Peoples from all over the world have come here. Asians traveling across the Bering land bridge ~12,000 years ago fanned out across North America and South America. Europeans began arriving starting in the 1500's, Africans in the 1600's, Asians in the 1800's, South Americans in the 1900's. We have brought different creeds and customs: shamans and their ceremonial practices, pilgrims, puritans, huguenots, catholics, orishas, shinto buddhists, hindus, confucians, Jews, and Muslims. We have brought different features, skin color, temperaments. And we've been intermixing for 400 years.

We have come together in this new world around a set of lofty ideas and ideals (freedom of speech, religion, association; liberty, self-reliance, hard work, equality of opportunity, equality before the law, and justice). But these ideals have clashed with the cold reality of the human condition. The fact that we've arrived here at different times, under different circumstances, some with great advantages, both earned and unearned, and others with great disadvantage--all this makes the smooth implementation of our ideals difficult. It roils the juices of the melting pot.  We may be Scots American, but our mother is German, one set of grandparents Dutch, or Chinese, or African. We call Barack Obama our "first African American President," although he never lived in Africa, and was born in Hawaii to a white Kansan woman "largely" of English descent with some German, Irish, Scottish, Swiss, and Welsh descent. His Kenyan father was not in the picture after age three.

Obama's story is not unusual. It is the American story. We hang significance on his blackness only because we are human and thus xenophobic. We get confused because our identities get packaged in small bits like data traveling along the internet, without a central processing unit to put it all neatly back together.

It should be no surprise to anyone, and it should be in no way remarkable, that Elizabeth Warren has a native American ancestor among her mostly European ancestors, or that this should leave a mark on her and her family's identity and conception of self.

Consider Brad DeLong's story. "On a thousand year timescale the human race really is just one big unhappy family," he observed. DeLong can trace his lineage on his mother's side in an unbroken fashion back to 1543 England and the grandparents of a Pilgrim (Ezekiel Richardson) who married Susanna Bradford in Massachusetts--the daughter of Governor William Bradford of the Mayflower. And on his father's side he can trace his lineage back to his "great-great-great grandfather James DeLong who, before the Civil War and before he left his bones in Wichita, had used his status as an Ohio judge to free three slaves whose masters had been unwise enough to briefly set them on the north bank of the Ohio River." It would occur to no one that there is something improper about Brad relating to this history, or that he should identify with it, even if the DNA of these ancestors has long ago dissolved into the ether. But then Brad isn't running for higher office. 

Enter Scott Brown and Donald Trump 

Warren released her video, of course, not because she is trying to make something of her Native American heritage, but because "opposition research" during her 2012 Senate campaign against Scott Brown in Massachusetts sussed out that she had listed herself as "minority" in a survey for a directory published by the Association of American Law Schools. Scott Brown falsely attacked Warren for 1) exploiting her heritage to get a leg up, and  2) that she lied about having any Native American heritage. The issue was used as a shield against Warren's criticisms by Trump during the 2016 campaign.  As reported by CNN  in 2016 Brown also continued his attacks during the 2016 campaign: 
"She's not Native American, she's not 1/32nd, she has no Native American background, except for what her family told her," Brown told reporters on a conference call hosted by the Republican National Committee, hours after Hillary Clinton and Warren appeared at an event together. "The easy answer, as you all know, is that Harvard and Penn can release those records, she can authorize the release of those records, she can take a DNA test, she can release the records herself. There's never been any effort," Brown said."
During the Massacchussets 2012 campaign, Brown supporters were caught on video at an outdoor rally making faux Indian war whoops and tomahawk chops. During the '16 campaign, Trump tweeted "Let's properly check goofy Elizabeth Warren's records to see if she is Native American. I say she's a fraud!" he tweeted in May 2016. [She had called Trump “goofy” in his #MAGA hat] Trump sharpened his attacks as that campaign heated up, telling NBC News: "She made up her heritage, which I think is racist. I think she's a racist, actually because what she did was very racist." He offered to pay one million dollars to a charity of Warren's choosing if she could prove she had Indian ancestry.

Professor David Bernstein at the Antonin Scalia School of Law tried to smear Warren with innuendo that she was angling for advantage with her minority listing in the directory. He's that kind of guy, as revealed by this hostile wiki

But Warren Pretty Conclusively Did not Play Ethnicity for Advantage

Warren has made the relevant documents from her law school application and her time at the University of Texas, University of Pennsylvania, and Harvard available at her website. Here is what those documents indicate: 
  • Rutgers law school application, February 1973: Warren identified herself as White and specifically affirmed she was not seeking to be admitted under Rutger's program for minority students. 
  • University of Houston, September '78. In her first law school teaching gig, Warren was identified as "white." 
  • University of Texas employee information form lists Warren as a white female. Her appointment form (1981) lists her ethnicity as "white." 
  • University of Pennsylvania. Warren changed her classification from "white/caucasian" to "Native American or Alaskan Native" on December 6, 1989 "nearly three years after offered tenure.
  • Harvard '93. After a stint as visiting professor, Warren was offered a position as tenured faculty. The Crimson article discussing the appointment remarked on how this diversified the faculty by appointing a woman, but lamented that there are still no women of color and considered Warren as "white." 
The documents, testimonials, reports, and videos at the archive, together with her campaign style video released last week, seem to place beyond any reasonable question that Warren considered herself "white/caucasian" as she applied to law school and obtained each of her law school teaching positions, that she was considered white by those institutions, and she did not seek advantage in employment by claiming minority status .  

Warren's Self-Identification as Minority

Warren's archive at her website includes a report from a Harvard affirmative action person, dated December 15, 1995, "nearly three years after Warren was offered tenure."  It reads as follows: 
In compiling the statistics for the annual Affirmative Action Report for the University, I spoke with professor Warren about her ethnic status. She stated that she self-identified as a Native American. She has listed herself with minority status for at least the past four years (my total list of AALS Directories) (sic) with AALS. Therefore, we have in our current statistics listed her as a Native American.
This occurred after Harvard University received criticism for lack of ethnic diversity among its faculty. In a report compiled by Politifact they indicate that AALS listed Warren as a "minority" law teacher each year from 1986 (the first year the group asked about minority status) to 1994. "The directories don’t indicate which minority group a person claiming minority status belonged to," said Politifact, "so it would not be obvious to schools or other readers that Warren was thinking of her Native American roots."

The Arbitrariness of Census Forms

We have become accustomed to both governments and institutions collecting census forms that ask about ethnicity. In our melting-pot reality, such self-categorizations have an unavoidably arbitrary quality about them. The U.S. Government 2010 Census form handles the problem of diverse ancestry by saying "Check one or more boxes ....." By contrast, the statistics gathered by the Office of Federal Compliance Program, requires that one, and only one, box be checked.* And they provide no clear standard for which box should be checked: a box can be checked based on the group to which a person "appears to belong", "identifies with," "or is regarded in the community as belonging."  This suggest three different standards: 1) objective outward appearance, 2) subjective identity, or 3) a sense of the community. 

When Warren checked the form for the AALS directory she was using a subjective identity standard. This was not a radical act. Warren was checking a box, presumably in the privacy of her office, while thinking of her private subjective identity with her Native American ancestors. Although the directory is published, the only information it appeared to contain was "minority" without specifying what kind of minority. In addition, the directory is a specialty document not likely to be consulted by the public at large--unless, of course, you decide to run for the Senate.

Racial Identity Theft?

"She made up her heritage, which I think is racist," tweeted Trump. That is water under the bridge. The DNA test Warren revealed this week pretty clearly indicates she in fact has a Native American ancestor in her mother's lineage, six to ten generations back. She did not make it up. Trump has reneged on his offer to pay a million dollars.  "Who cares about DNA," he responded when challenged by a reporter.

Warren explains in her video that this Native American heritage was held against her mother by her father's family when they were courting. As illustrated by Brad DeLong's story, the half-life of family lore (like "one of my ancestors was Governor William Bradford of the Mayflower") is longer than the half-life of our DNA. 

Last December, after Trump referred to Warren as "Pocahontas" during a ceremony arranged for the Navajo Code Talkers, Rebecca Nagle, a young Cherokee activist (of mixed race), wrote an angry article in Think Progress  arguing with Trumpian rigor that Warren was "misappropriating Native identity for her own economic and political gain," while at the same time complaining that Warren has been too low-key about her Indian identity for her liking. She penned a faux mea culpa she impudently suggested Warren should issue:  
"I am deeply sorry to the Native American people who have been greatly harmed by my misappropriation of Cherokee identity. ... In my family, there is an oral history of being Cherokee, however, research on my genealogy going back over 150 years does not reveal a single Native ancestor. Like many Americans who grew up with family members claiming to be Cherokee, I now know that my family’s stories were based on myth rather than fact." 
This week after Warren released her DNA test confirming that she does in fact have Native American ancestry, Nagle doubled down, undeterred, on Matt Thompson's podcast at The Atlantic. She accused Warren of "racial identity theft;" she again called that Warren should apologize for having the audacity to subjectively identify as Cherokee, even in light of her Native American ancestor. 
At Democracy Now, Amy Goodman and her crew  reported that Native Americans across the country criticized Warren’s decision to use a DNA test to assert her Native American heritage, and they referred to Chuck Hoskin Jr., secretary of state of the Cherokee Nation, who said, “Using a DNA test to lay claim to any connection to the Cherokee Nation or any tribal nation, even vaguely, is inappropriate and wrong.” 

Indian identity should be determined solely through formal tribal membership say these critics. It's a troubling and extreme position. The 2010 U.S. census reported 5.9 million Americans who identify as Native American, or partly Native American (including Alaskan).  Approximately 2.9 million identified as Native American or Alaskan alone. Formal tribal membership among all the tribes, according to the 2010 census is only 3.4 million. Rebbecca Nagle and her fellow critics, therefore, implicitly accuse 2.5 million (or 42%) of those who identified as Native American on the 2010 census as fakes who have no business claiming any kind of Indian heritage. That's chutzpah. 

None of This is Warren's Doing

I don't begrudge Warren her identification with her Native American heritage. Even if we take note, however, that it is a bit unusual (and perhaps odd) to check a box marking yourself as a "minority" on the strength of one unidentified ancestor 6-10 generations back and some family lore, it's a harmless and largely private issue. We are talking about it for only one reason: Scott Brown tried to exploit the issue to smear Warren with false innuendo's and false accusations in 2012, and Trump has gleefully picked up the torch.  

With her video release and by releasing all relevant records she could get her hands on, Warren is attempting to do what Hillary failed to do with her emails: get the gum off the shoe.  We'll see if this proactive approach makes a difference. 

Follow me on Twitter @RolandNikles


* The federal requirements were spelled out in an exhibit in one of the University of Pennsylvania documents in the Warren archive at her website.  "The concept of race ( ) used by the Office of Federal Contract Compliance Programs (O.F.C.C.P.) and the Equal Employment Opportunity Commission (E.E.O.C.) does not denote clear-cut scientific definitions of anthropological origins," says the definition.  Each employee or candidate, it goes on, "must be identified as belonging to one, and only one, of five broad racial/ethnic categories defined by federal authorities. A candidate may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as belonging." 

Sunday, October 14, 2018

Visualizing a Carbon Tax: or "Buddy, Can you Spare $10 a Month to Save the Planet?"

In 1982 the guitarist Carlo Karges of the German rock band noticed balloons released at a Rolling Stones concert and imagined these balloons floating over East Berlin. What could happen? What are the possibilities, he wondered? His flight of fancy caught the world's attention with Nena's hit song 99 Luftballons. Nine years later the Berlin wall was no more and Germany was unified.

Are you a Washington voter? Try imagining 44 million Luftballons.

On November 6, 2018 Washington state voters will have an opportunity (Initiative Measure No. 1631) to approve a carbon tax that would raise ~$2 billion during the first five years of the program. The tax is styled as a "fee" for technical WA state related reasons and the fee is set at $15/metric ton with subsequent annual increases of $2/metric ton until Washington's approved CO2 reduction targets are met. The fee will start to be collected in January 2020, and proceeds will be spent on specified clean energy and carbon reduction related programs.

Initiative measures in Washington require a simple majority vote to become law.

There are reasons to believe a program like this will work. A similar, slightly more ambitious program was enacted in 2008 in British Columbia. That program has received positive reviews. A New York Times report in March 2016 said: "The tax, which rose from 10 Canadian dollars per ton of carbon dioxide in 2008 to 30 dollars by 2012, the equivalent of about $22.20 in current United States dollars, reduced emissions by 5 to 15 percent with “negligible effects on aggregate economic performance,” according to a study last year by economists at Duke University and the University of Ottawa." Even industry is reported to have warmed to the British Columbia tax because "a carbon tax is the most efficient, market-friendly instrument available" when it comes to battling climate change.

Washington's legislature has failed to pick up this market-friendly, efficient instrument. A recent bill--Senate bill 6203 (2018)--which would have imposed a more modest $12/metric ton fee--never made it out of committee for a vote. So now it's up to Washington state voters.

According to the Washington Department of Ecology, the state emitted 94.4 million metric tons of carbon dioxide equivalent (CO2e) in 2013. That was a significant improvement from 110 million metric tons in 2000, but not enough for the state to meet its longterm emissions goals.  The WA legislature has previously established targets of 66.3 million metric tons of emissions for the year 2035 (25% below 1990 levels), and 44.2 million metric tons by 2050 (50% below 1990 levels).*

According to the Environmental Defense Fund, the average American family emits about 24 metric tons of CO2 per annum. In 2017 there were ~ 2.7 million households in Washington state. That would  seem to suggest ~65 million metric tons of the 94.4 million tons emitted in Washington in 2013 (2/3) is attributable to consumers, and industry accounted for the remaining ~30 million metric tons (1/3).

How do we visualize this and give it meaning? The Environmental Defense Fund tells us that a metric ton of CO2 would fill a 10 foot diameter red balloon. So how much CO2 does an average household emit:  enough to fill 24 ten foot diameter red balloons every year. The 30 million metric tons of CO2 emitted by industry annually is ~30 million red 10' balloons.

If we are successful at achieving the 2050 goal of 50% of 88.4 million metric tons, the 1990 levels of CO2 emissions, we should visualize removing 44 million 10 foot diameter red balloons filled with CO2 from the atmosphere every year.

I'm willing to grant (assume) that achieving substantial reductions in our carbon emissions is essential for the good of the planet. I'm also willing to grant (assume) that in order to achieve such substantial reductions, adopting programs like the one outlined by Measure 1631 are essential to achieve that goal.

The measure strikes me as well written and thoughtful. I can't begin to appreciate all the possible repercussions and ramifications. But there are some indicia that this is a solid program. Governor Jay Inslee supports it; Bill Gates supports it, and you can read his reasons at his blog; it is similar to the British Columbia program that seems to be working without causing harmful economic disruption.

The program won't be free. Opponents and supporters estimate that costs will be largely passed on to consumers and that the costs will range from $10 to $36 per month through higher gasoline prices, fuel oil prices, and electricity prices.  See, eg. The Atlantic and Seattle Times. A study by the Washington State Budget and Policy Center estimated an added cost of $13 per month per household.

We are left with the question: can we spare $13/month per household to save the planet? Even if you believe climate change may be a hoax, voting "yes" on IM-1631 seems like a low risk proposition. Think of Pascal's wager. Visualize 44 million Luftballons.

Follow me on Twitter @RolandNikles

*  Executive order 2007-02 issued by Governor Gregoire and adopted by the legislature in 2008 (RCW 70.94.159) The goals are enacted in RCW 70.235.030.  The state has determined that WA's carbon load in 1990 was 88.4 million metric tons. 

Saturday, October 6, 2018


Michael Reynolds/Getty Images 9/27/18
Mr. President, I listened carefully to Christine Blasey Ford’s testimony before the Judiciary Committee. I found her testimony to be sincere, painful, and compelling. I believe that she is a survivor of a sexual assault and that this trauma has upended her life..... 
I have been alarmed and disturbed, however, by some who have suggested that unless Judge Kavanaugh’s nomination is rejected, the Senate is somehow condoning sexual assault. Nothing could be further from the truth.
Every person—man or woman—who makes a charge of sexual assault deserves to be heard and treated with respect. The #MeToo movement is real. It matters. It is needed. And it is long overdue. We know that rape and sexual assault are less likely to be reported to the police than other forms of assault. On average, an estimated 211,000 rapes and sexual assaults go unreported every year. We must listen to survivors, and every day we must seek to stop the criminal behavior that has hurt so many. We owe this to ourselves, our children, and generations to come.
The facts presented do not mean that Professor Ford was not sexually assaulted that night – or at some other time – but they do lead me to conclude that the allegations fail to meet the “more likely than not” standard. Therefore, I do not believe that these charges can fairly prevent Judge Kavanaugh from serving on the Court.
                                         --Senator Susan Collins October 5, 2018

Last night we watched Icarus (2017) a documentary film by Bryan Fogel streaming on Netflix. It's about Grigory Rodchenkov, the head of the Russian doping lab at the Sochi Olympics who wound up telling his story to the New York Times. Watching Icarus is an apt post-script to the GOP's ramrodding the appointment of Brett Kavanaugh to the Supreme Court by dictatorship of the majority. 

Rodchenkov was carrying with him a copy of George Orwell's 1984 and Orwell's depiction of double-speak resonated with Rodchenkov grappling with the absurd levels of deception, lies, and hypocrisy of the Russian sports doping-program. It should resonate with us in light of the absurd levels of deception, lies, and hypocrisy of the Trump/Mitch McConnell GOP.

Here is George Orwell, in 1984:
To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy, to forget whatever it was necessary to forget, then to draw it back into memory again at the moment when it was needed, and then promptly to forget it again, and above all, to apply the same process to the process itself—that was the ultimate subtlety: consciously to induce unconsciousness, and then, once again, to become unconscious of the act of hypnosis you had just performed. Even to understand the word—doublethink—involved the use of doublethink. [part 1, chapter 3] 
The power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them… To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just as long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies—all this is indispensably necessary. Even in using the word doublethink it is necessary to exercise doublethink. For by using the word one admits that one is tampering with reality; by a fresh act of doublethink one erases this knowledge; and so on indefinitely, with the lie always one leap ahead of the truth.  [Part 2, chapter 9]
And here is Stalin's version, speaking to the 16th Communist Congress in 1930:
We are for the withering away of the state, and at the same time we stand for the strengthening of the dictatorship, which represents the most powerful and mighty of all forms of the state which have existed up to the present day. The highest development of the power of the state, with the object of preparing the conditions of the withering away of the state: that is the Marxist formula. Is it "contradictory"? Yes, it is "contradictory." But this contradiction is a living thing and wholly reflects the Marxist dialectic.  
Follow me on Twitter @RolandNikles 

Wednesday, October 3, 2018

A Timeline of the Blaisey Ford Allegations

Win MacNamee photo/AP
David Graham has published an article in the Atlantic asking whether the Democrats mishandled the Christine Blaisey Ford allegations.

Here is a timeline:

Brett Kavanaugh was not on Trump's original list of 25 potential Supreme Court appointees released in September 2016, during the campaign.  He was added with four others in 2017.

6/28/18    Kavanaugh was reported to be on a short list of potential nominees.

7/6/18     Christine Blaisey Ford (CBF) calls her congressional representative, Anna Eshoo (Palo Alto) and tells the receptionist there that someone on Trump's short list for the court had attacked her in high school in the early 80's.

7/9/18     Trump nominates Kavanaugh.  Anna Eshoo calls CBF.

7/18/18   Eshoo staff meets to interview CBF. She requests her name be kept in confidence.

7/20/18   Anna Eshoo meets with CBF. She asks whether she may share the information with Feinstein's office (minority leader on the Senate Judiciary Committee), and CBF agrees.

7/21/18   Eshoo contacts Feinstein without disclosing CBF's name. Feinstein asks that a letter be written.

7/30/18   CBF delivers a letter to Eshoo's office. Eshoo delivers the letter to Feinstein with an admonition that it be held in confidence.

8/7/18     Sometime in the first week of August, Feinstein called CBF.  CBF decides she wants her name to be kept confidential. Feinstein recommended Debra Katz, a prominent DC employment lawyer who has represented several people caught up in the #MeToo movement.

8/31/18   Feinstein sends a letter to CBF promising to honor her request not to share CBF's letter without her explicit consent. As far as Feinstein was concerned, it appears, the matter was closed.

9/4/18     Senate Judiciary Committee hearing on Kavanaugh begins.  During the hearing rumors were circulating among Democratic staffers that Feinstein was in possession of a potentially explosive letter from a constituent.  Democratic Senators on the Committee began to ask for a copy. Feinstein refused.

9/7/18     Initial round of hearings conclude. Grassely schedules vote for that Friday

9/12/18  Ryan Grim published a story in The Intercept about the existence of the letter, and the mounting pressure on Feinstein to release a copy. Grim has said on Twitter that Feinstein's office was not the source for his story. His story lead to a "tense meeting" among Democrats on Capitol Hill. At this meeting, Feinstein is persuaded to forward the letter to the FBI. The FBI includes the letter in an update to its background check distributed to all Judiciary Committee members (exact date of this distribution unknown to me).

9/13/18    The Senate Judiciary Committee met to consider the nomination and preliminarily set a vote for September 20. Chuck Grassley exercised his option to continue action on the nomination for one week. Vox. 

9/14/18    The New Yorker (Ronan Farrow) reported that Democrats were investigating an allegation by a woman who claims she was assaulted by Kavanaugh while they were in high school.

9/16/18     CBF went on record with the Washington Post after being contacted by various news outlets. It appeared to her that the cat was out of the bag and maintaining confidentiality was no longer an option. 

9/17/18     Grassley announces that the Committee will not vote until it hears from Kavanaugh and CBF on the allegations.  

9/27/18    Kavanaugh and CBF testify to the Committee.

9/28/18    The Committee sends the nomination to the full Senate, but three Republican Senators (Flake, Collins, and Murkowski) hold firm that they will not vote to approve until they have an opportunity to consider a supplemental FBI report on the CBF allegations.

This evening the FBI has concluded its investigation under a cloud of questions whether the White House has placed constraints on who the FBI might interview.  The FBI reportedly has interviewed Mark Judge--alleged by CBF to be in the room with Kavanaugh during the assault--and Deborah Ramirez, the woman who accuses Kavanaugh of exposing himself to her.  However, there are reports that the White House has micro-managed the investigation and that dozens of potential witnesses have not been contacted.

Kavanaugh told the Judiciary Committee "under penalty of felony" that he only learned about the Deborah Ramirez allegation after it was reported in the New Yorker.  But witnesses have come forth suggesting that in the days before this allegation was made public, Kavanaugh was communicating with friends behind the scenes to refute the claim. Some of these friends have attempted to alert the FBI to these conversations, but the FBI has apparently not followed up.

Some Observations

CBF sensed that coming forward would expose her to peril. She reportedly has received death threats, and has had to move out of her house with her husband and two teenage sons.  So why do it?

Undecided Now. 

Approaching Eshoo's office, her Representative, seems like a natural move. But to speak with Eshoo and Feinstein and then tell them "I don't want my name used" seems pretty naive for a university professor.  With all the wisdom of a Monday morning quarterback one might say: "either sit on it and don't come forward at all, or make sure this gets to Feinstein and Grassley--i.e the majority and minority leaders on the Senate Judiciary Committee, pronto;" i.e. back on July 6.

But I understand the approach avoidance CBF has experienced about this.

As for Kavanaugh: he was angry, partisan, conspiratorial, and categorical in his denial.  I can understand categorical denial if CBF is making it all up, or if this is a case of mistaken identity as he has suggested. Kavanaugh tried to thread the needle between "mistaken identity" and "she is lying for political purposes" with his baloney that he does not doubt CBF was sexually assaulted "in some place, at some time, by someone," but that this is revenge for Trump's election, revenge on behalf of the Clintons, all designed "to take me down."  That two-faced approach just doesn't look good. And if the assault, or anything like it, happened, his categorical denial and conspiratorial mud-slinging is nothing short of monstrous for someone picked to sit on the Supreme Court.

Republican Senators have tried to walk the same tightrope as Kavanaugh: to a man--and it's all GOP men on the Judiciary Committee--they have paid lip service to CBF's credibility. They are a little undecided about it too. They have tangentially questioned her polygraph test; they have floated the mistaken identity theory; but they opted not to attack her credibility directly.  Even Lindsay Graham, who called this the biggest political charade he's ever seen--which is saying a lot these days--seemed more concerned about the process (that CBF wanted the allegations kept secret, that they were leaked, and that this happened, oh so long ago . . . ) Graham did not attack CBF's credibility directly. Chuck Grassley and all GOP Senators on that committee except Jeff Flake have said loud and clear: they support Kavanaugh in his two-faced approach, and they don't care if he did it or that he may be a monstrous liar. They are ready to have him on the Supreme Court.

"We believe poor Brett," they say. But the GOP cannot have this both ways. By acknowledging CBF's credibility as a witness, which they have done, they are ipso facto acknowledging, not the truth of her allegations, but the possibility of the truth of her allegations. That possibility casts a shadow that doesn't go away with a five day FBI investigation and dozens of witnesses not contacted.

In the world of Mitch McConnell might is right, and the possibility that he might be appointing a monstrous liar to the Supreme Court holds no sway.

We'll find out in the next two days whether there are any patriots left among GOP Senators.

Follow me on Twitter @RolandNikles

Saturday, September 29, 2018

Sending Sexual Transgressors and Perjurers to the Supreme Court, for Life

But for a dramatic elevator encounter between two women protesters and Jeff Flake Friday morning, the GOP was poised to send a second likely sexual transgressor and perjurer to sit on the Supreme Court for life on Monday. Jeff Flake mercifully has given the country a week to reflect on this, and the FBI to ask some questions.

Anger and vehemence in defense of oneself is no mark of credibility. We have watched too many angry denials and protestations of innocence from the likes of Lance Armstrong, Marion Jones, and Bill Clinton to believe that.

Twenty-seven years ago Clarence Thomas saved his nomination for associate justice of the Supreme Court by going on the offensive. He categorically denied all allegations of sexual harassment raised by Anita Hill and alleged that "this ... sleaze, this dirt, was searched for by staffers of members of this committee. It was then leaked to the media. And this committee and this body validated it and displayed it in prime time over our entire nation." He called the hearing a type of "high tech lynching for an uppity Black." A quarter century later, Justice Thomas has rarely spoken from the bench, has quietly amassed the most extreme conservative record, is the most liked of all the justices on the court by staff.  Yet he and the Supreme Court continue to suffer from the stain of his confirmation hearing. There is a wide-spread perception in the country that Thomas lied his way onto the court, and that the Senate Judiciary Committee--which then, as now, included Senators Grassley, Hatch, and Leahy--did a grave injustice to Anita Hill.  

Thomas was approved by a vote of 52-48 in the full Senate. Mitch McConnell voted for him; Lisa Murkowski's father was there and voted for him. A majority of the Senate was comfortable appointing a likely sexual harasser and perjurer.  

Kavanaugh followed the Thomas playbook this week. "This confirmation process has become a national disgrace," he roared; "you have replaced advice and consent with search and destroy," he said; and he added: "since my nomination in July, there has been a frenzy on the Left, to come up with something, anything, to block my confirmation."  

Marcia Coyle, a reporter for the National Law Journal, who has watched numerous confirmation hearings, was struck by Kavanaugh's partisan tone.  "Kavanaugh did not have a race card to play," she said on PBS last night, "but what he did have was partisanship."  Coyle succinctly summarized the heart of Kavanaugh's remarkable speech:  "His emotional, angry, often belligerent delivery, focused on what he felt was a conspiracy on the Left to search and destroy him," noted Coyle.

Some remember Kavanaugh as a member of the "vast right wing conspiracy" out to get the Clintons in the 1990's. While working for the Ken Starr investigation, Kavanaugh drafted particularly lurid questions for counsel to ask Bill Clinton in deposition, he aggressively promoted investigation of the Vince Foster suicide as a potentially politically motivated murder tied to the Clintons, and he participated in drafting articles of impeachment for Bill Clinton. 

As we watched this week, we were struck by Kavanaugh's angry face, the stares, the grimaces of contempt and loathing, the defiance. While granting that he believed Christine Blaisey Ford was assaulted by someone, at some time, in some place, he nevertheless projected that her allegations against him came from a place of revenge for the 2016 Presidential election, his own ideology, and the work he did for Ken Starr, the Independent Counsel who had investigated the Clinton White House.  Kavanaugh played his "partisanship card" to the hilt: "I have never seen anything like it" said Coyle.

The country was riveted. More than 20 million watched on television. Many millions more followed on the internet where several outlets offered live-streaming and blow-by-blow coverage. And as we watched, we were deeply divided. Forty-eight percent of White evangelicals would support Kavanaugh even if the allegation against him is true--and he ipso facto is a self-righteous perjurer.

Amanda Aronczyk | WNYC |
Two people in NY subway listening to Kavanaugh hearing 9/27/18
Most people who oppose Kavenaugh because they don't like his right wing judicial activism, believe and support  Christine Blaisey Ford. Most people who like Kavanaugh and his pro-GOP judicial profile believe and support Kavanaugh. In a poll of 1,000 White Christian Evangelicals conducted by Maris (September 22-24), however,  forty eight percent supported Kavanaugh even if told to assume that the allegations against him are correct. Senator Lindsay Graham seems to agree: he said "This is the most unethical sham since I've been in politics." Graham is referring to the fact that Blaisey Ford wanted to maintain her letter confidential and that it was leaked very late in the process. However, Senator Graham clearly does not think that the truth of Blaisey Ford's allegations matter. They are too old, and brought up too late in the nomination process. They should be ignored. And so it doesn't matter whether they are true or whether Kavanaugh is lying about them.

The partisan divide we are witnessing is an example of motivated reasoning, notes Ilya Somin. People on both sides of the Kavanaugh debate are making arguments that support their position,  rational and otherwise, and this colors their view of the facts. But just because we are engaged in motivated reasoning, doesn't mean we should throw the facts under the bus. Hence the need for a more thorough investigation.

Jeff Flake, before his elevator close encounter, announced he would support the nominee both in committee and in the full Senate vote, because Kavanaugh deserved a presumption of innocence. He argued that since both Blaisey Ford and Kavanaugh were convincing in their testimony, we have no choice but to affirm.  But that is horribly wrong. When you interview a baby-sitter for your kids and someone comes forward and credibly says "You should know this boy is a crack-head and a bad person" you don't shrug your shoulders and put this boy in charge of your kids just because  he credibly denies it and you can't tell for sure. No, you politely decline to hire this boy, and you look for someone else.

Given the fact that Blaisey Ford is acknowledged to be credible, Senators need to take heed. Since Kavanaugh has vehemently denied the accusations, he has ipso facto perjured himself if what Blaisey Ford says is correct. What Lindsay Graham is telling us, along with the White Evangelicals in the Maris poll, is that he doesn't care if Kavanaugh sexually assaulted Blaisey Ford, and perhaps others in High School. And What Lindsay Graham is also telling us is that, since it doesn't matter if Kavanaugh did this 35 years ago, it also doesn't matter if he lies about it now, to the Senate, to the country, before God.

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Sunday, September 16, 2018

What we Can Learn from Judge Kavanaugh's Dissent in Garza I

Scott Lloyd, Director of Office of Refugee Resettlement
testifying before House Judiciary Committee
on Border Security 10/26/17
As he ran for office, Donald Trump promised to defund Planned Parenthood "because of the abortion issue." In debating Hillary Clinton on national television he promised to appoint "pro-life judges" and  he predicted that the right to abortion would be eliminated as a constitutional right. The issue "would go back to the states," he promised. In other words, Roe v. Wade would be overturned. 

Ten days after his inauguration Trump nominated Neil Gorsuch for the position that was denied to Merrick Garland. Gorsuch, a solid conservative judge, is broadly perceived to have pro-life views, although he understandably would not commit to how he would rule if the opportunity arose to overturn Roe v. Wade. 

With the retirement of Justice Kennedy, Trump has nominated a second Pro-Life conservative to sit on the high court, Brett Kavanaugh. A Senate confirmation vote is set for this Thursday.

As with Gorsuch, we don't exactly know how Kavanaugh will vote with respect to Roe v. Wade when the opportunity arises. In the meantime we can contemplate his dissent in Garza I.  This decision from the D.C. Circuit court of Appeals enforced the constitutional right of an immigrant minor in the custody of the government to terminate her pregnancy. Kavanaugh would have withheld enforcement of that right.

What can we glean about Kavanaugh from reading Garza I?

Background of Garza I (Garza v. Hargan  U.S. Court of Appeals for DC Circuit 10/24/17)

Undocumented minors who are apprehended by the Federal government wind up in the custody of the Office of Refugee Resettlement ("ORR"). That's where all those children that the Trump administration separated from their parents wound up. Approximately 61/1000 teenagers in that group are pregnant.* Some only find out that they are pregnant when they are examined in custody. Some are pregnant because they were raped. The circumstances may be difficult for the government to verify, but there can be no question that many of these young women have sound reasons to consider terminating their pregnancies. 

The heart of Roe v. Wade is that in the first two trimesters the decision whether to terminate pregnancy is fundamentally a decision for the woman to make--not the government. The director of ORR, Scott Lloyd, doesn't share this view: he thinks there are no sound reasons for young women to ever consider abortion, and he means to enforce his view on pregnant minors in his custody. His view happens to be unconstitutional--for now. 

Undocumented minors in custody of ORR are appointed guardians ad litem, and some seek to exercise their constitutional right to terminate their pregnancies. But there is a hitch. Soon after the Trump administration assumed power, ORR imposed a new policy designed to make it virtually impossible for any minor in its custody to obtain an abortion. Trump's Director of ORR is a longtime Pro-Life activist, and he has intervened personally to prevent pregnant teens in his custody from exercising their right to terminate a pregnancy. The Trump ORR policy states that the Director (Scott Lloyd) is the only one who may approve  a procedure to terminate pregnancy, and Lloyd has made it clear he will not approve; not even in the case of rape.  

Here is Director Lloyd's justification for denying an abortion in the case of a 17 year old woman in his custody who was raped and asked to terminate the resulting pregnancy: 
"At bottom, this is a question of what is in the interest of the young woman and her child. How could abortion be in their best interest where other options are available, and where the child might even survive outside the womb at this stage of the pregnancy? Here there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her (the rape), and it may further traumatize her. I conclude that it is not in her interest. 
"Refuge is the basis of our name and is at the core of what we provide, and we provide this to all the minors in our care, including their unborn children, every day. In this request, we are being asked to participate in killing a human being in our care. I cannot direct the program to proceed in this manner. We cannot be a place of refuge while we are at the same time a place of violence. We have to choose, and we ought to choose to protect life rather than to destroy it."
See Garza II (a follow up March 2018 District Court opinion granting class status to all similarly situated young women in the custody of ORR)  

The constitutional right of these minors in ORR custody to terminate their pregnancies, however, is clear; sufficiently so that the government in Garza I conceded the point. Director Lloyd's rules and his intervention based on his personal beliefs are unequivocally contrary to law. 

Garza I commenced when, on October 13, 2014 Garza--as guardian ad litem for a 17 year pregnant girl in custody of ORR (J.D.)--filed a lawsuit to vindicate J.D's 5th Amendment right to terminate her pregnancy.  J.D. was approximately 13 weeks pregnant at the time the suit was filed; in other words, she was at the start of her second trimester. If pregnancy was to be terminated, time was of the essence. Because the law is clear, the following day the district court issued a restraining order requiring that the government (ORR) allow J.D. to be transported to an abortion provider for performance of the procedure. The Trump administration appealed. 

The appeal went to a three judge motions panel of the Federal Court of Appeals for the D.C Circuit. On October 20, 2017 the panel issued partial relief to ORR, and ordered the district court to allow ORR until close of business October 31 to find a suitable sponsor to take custody of J.D. so that ORR can release her from its custody. Faced with the prospects of a further indefinite delay J.D. requested reconsideration from the entire panel of judges sitting on the D.C. Circuit--including Judge Kavanaugh. On October 24, 2017 the full panel of judges decided 7-3 to uphold the trial court's temporary injunction and to permit J.D. to terminate her pregnancy without further ado.  She did so two days later. 

Judge Kavanaugh dissented from the decision allowing J.D. to proceed with terminating her pregnancy. 

Here is how Judge Karen Henderson, another dissenter in Garza I characterized the motion panel's order (preventing J.D. from proceeding): "The panel concluded that a short delay to secure a sponsor does not unduly burden any alleged right if the process is expeditiously completed by close of business October 31." This also became the focus of Judge Kavanaugh's dissent. 

According to Judge Millet, the only judge from the majority to speak up, this characterization by judges Henderson and Kavanaugh is so incomplete as to verge on the disingenuous: 
The centerpiece of the panel order ... was the conclusion that forcing J.D. to continue her pregnancy for multiple more weeks is not an “undue burden” as long as the sponsorship search is undertaken “expeditiously.” ... [But t]he sponsorship search has already been underway for now-almost seven weeks. ... Tacking on another eleven days to an already nearly seven-week sponsorship hunt—that is, enforcing an almost nine week delay before J.D. can even start again the process of trying to exercise her right—is the antithesis of expedition. A nine-week waiting period before litigation can start or resume, if adopted by a State, would plainly be unconstitutional.... On top of that, the panel’s order did not say that, at the end of its eleven days, J.D. could terminate her pregnancy if no sponsor were found. Quite the opposite: The order just stopped everything—except, critically, the continuation of J.D.’s pregnancy—until October 31st, at which time J.D. would have to restart the litigation all over again unless a sponsor was lucked upon.... All the government argues with respect to sponsorship was that its flat and categorical prohibition of J.D.’s abortion was permissible because she could leave government custody if a sponsor were found or she surrendered any claim of legal right to stay here and voluntarily departed.
With hindsight we know that judge Millet's evaluation here was spot on. The suggestion that the government would find a sponsor by October 31 was fantasy.  The government did not find a sponsor for her until January 15, 2018. By then J.D. would have been more than six months pregnant  and the ORR policy would have successfully thwarted her constitutional right.  

Judge Kavanaugh's Dissent

Judge Kavanaugh would have forced J.D. to wait for an additional indeterminate amount of time before (if) she might terminate her pregnancy. The center piece of his argument was that it is reasonable for ORR to impose a short (additional) waiting period on J.D. until the government finds a suitable sponsor--presumably Loyd's ORR would want to find one who could be relied on to pressure her against getting an abortion.  And Kavanaugh acknowledged that he did not see October 31, i.e. just another 11 days, as a hard deadline for the government; it would depend on what additional arguments the government could make after 11 days: 
"What happens, however, if a sponsor is not found by October 31 in this case? What happens generally if transfer to a sponsor does not occur expeditiously? To begin with, a declaration we just received from the Government states: “while difficult, it is possible to complete a sponsorship process for J.D. by 5 P.M. Eastern on October 31, 2017.” The declaration also lists several ongoing efforts regarding the sponsorship process. The declaration adds that all components of the U.S. Government “are willing to assist in helping expedite the process.” .... [T]he Government may seek to expeditiously transfer the minor to a sponsor before the abortion occurs; and if no sponsor is expeditiously located, then it could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion, depending on what arguments the Government can make at that point."
Kavanaugh proves himself either disingenuous or gullible.  We know this because we've read Millet's opinion and we also know that the government did not find a sponsor for J.D. until January 15, 2018.

Kavanaugh proves himself a skilled writer. He sounds reasonable. He skillfully attempts to frame the issue as "may a caring government, concerned only for the welfare of the child, bend over backwards to find a third part sponsor to assist the minor in making her decision." Why should that be unconstitutional?

Well, it's unconstitutional because, as we learn from judge Millet: J.D.'s "capacity to make the decision about what is in her best interests by herself was approved by a Texas court consistent with state law. J.D. did everything that Texas law requires to obtain an abortion." There was no further legal role for a "sponsor," a guardian, or a parent to play. "That has been undisputed in this case," judge Millet informs us. What Kavanaugh says, in other words, is reasonable only if you believe the decision to terminate pregnancy in this case should not be up to the woman, but up to the state...., and that it's o.k. for the state to make the decision based on Scott Lloyd's personal belief and not in accordance with existing law.

And that goes to the heart of Roe v. Wade. 

Kavanaugh, grudgingly to my reading, acknowledges that J.D. may have a right to make her decision to terminate pregnancy "under existing Supreme Court precedent." As Ron Klain quipped to Preet Bharara on his podcast, however: "if my wife started speaking about me as her 'existing husband' I'd be worried."  Klain concluded Kavanaugh chose his language because he wanted to convey the impression that he would be open to (likely would vote to?) change these "existing Supreme Court precedents." Kavanaugh was not on any known Trump list of potential judges before this opinion, so if the goal of his dissent was to campaign for a nomination, he was successful. The evangelicals noticed.

Klain's charge is a serious one, and Kavanaugh's dissent lends itself to such an interpretation (that he was writing to signal his willingness to overturn Roe v. Wade for the political goal of being nominated). Add it to the long list of appearances of impropriety about this nomination and this candidate. At the top of the list, of course, is his zealous participation  in the Ken Starr Whitewater/Foster/Lewinsky investigation--his overt hatred of Bill Clinton for lying (leading to Kavanaugh's drafting of sexually explicit questioning of the sitting president), his push for impeachment. When we contrast this with his present support of Trump, and present support for the position that presidents should not be impeached for lying and sexual transgressions, we have to wonder: what's behind this partisan animal?

The tone and substance of Kavanaugh's Garza I dissent suggest he's a political striver. His new found religion on "no impeachment" smells of political convenience and partisanship. The about face creates an appearance of impropriety at the very least. It is not a quality we wish to see in any Supreme Court justice.

And then we wonder: what's in those 60,000+ Kavanaugh papers withheld from the Senate?  These papers stem from Kavanaugh's time in the Bush White House--and we must assume they would shed light on what involvement, if any, Kavanaugh had with respect to crafting of policy regarding torture, wiretapping, and the detention of enemy combatants. All of these are issues that might come before the Supreme Court. Oddly, and disturbingly, the decision to withhold these papers has been outsourced to William Buck, a private attorney and long-time Kavanaugh friend, GOP operative, and personal lawyer to Steve Bannon, Reince Preibus, and Don McGahan.

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* This is the number of teenage births for Mexico (2016) and also the number of teenage pregnancies in the Southern United States.

Thursday, September 13, 2018

Trump Lies About Everything, All the Time, and his Base Doesn't Care

Young Hannah Arendt
There is a discussion on Crooked Timber, which Brad DeLong summarizes as "the more empirical reality tells the Trumpists to mark their beliefs to market, the more desperate they are to avoid doing so."  Lots of things Trump says are "just fucking ridiculous" notes John Holbo. He suggests that Trump's supporters don't want to admit that Trump says things that are "just fucking ridiculous" because they would be ashamed. Alternatively, we might say they lack the capacity for shame about the ridiculous things Trump says because they just don't care.

Trump has masterfully locked in his base. His approval ratings continue to be sky-high among Republicans; eighty-five percent like the job he is doing; seventy-six percent profess to believe Trump is telling the truth all or most of the time; and even among those Republicans who feel Trump regularly lies, 56% still support him.

I doubt we can chalk this up to fear of being shamed for believing "ridiculous things." Trump and his spokespersons have proudly made it a point that they champion a post-truth world: he had "the largest inauguration crowd," they work with "alternative facts."  Trumpers make their own truth.  They have no shame. The Washington Post's tally of Trump lies since his inauguration has topped 5,000. Despite what his supporters tell pollsters, Trump voters must know he lies all the time. They just don't care. It's not that they refuse to "mark their beliefs to market," it's that they profess to make their own market. They embrace Trump's lies and call it the truth. What is truth after all in a post-truth world. Certainly nothing to be afraid of.

Michael Flynn, Paul Manafort, Rick Gates, Michael Cohen, George Papadopoulos, and the Palestinians know better.

"What impresses me about Trump," says John Holbo, "is not so much that he can take over the tribe so completely, or that being a member of a tribe means believing what everyone else believes, but that a modern political tribe can be so groupthink lockstep without being (ideologically coherent)."

And Jim Harrison, a commenter, points us to Hannah Arendt and her book The Origins of Totalitarianism. In an interview, reflecting on the conundrum of how a civilized country like Germany could descend into barbaric uncivilized horror in such a short time, Arendt once said that the German people lost their mind, ... for a very short period of time. Trouble is, a lot of damage can occur in a very short period of time.

When we contemplate what Germany's fevered insanity looked like, we could do worse than contemplate Arendt's description here:
“A mixture of gullibility and cynicism had been an outstanding characteristic of mob mentality before it became an everyday phenomenon of masses. In an ever-changing, incomprehensible world masses had reached the point where they would, at the same time, believe everything and nothing, think everything was possible and that nothing was true. The mixture in itself was remarkable enough, because it spelled the end of the illusion that gullibility was a weakness of unsuspecting primitive souls and cynicism the vice of superior and refined minds. Mass propaganda discovered that the audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow. The totalitarian mass leaders based their propaganda on the correct psychological assumption that, under such conditions, one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.”
There is nothing new under the sun.  With a mixture of gullibility and cynicism Trump's base is willing to believe everything and nothing. Fox and friends have discovered that they can "make people believe the most fantastic statements" secure in the knowledge that if viewers are given irrefutable proof of falsehood, they will take refuge in cynicism and admiration of Trump's superior tactical cleverness.

The saving grace, for now, is no violence, no paramilitary militias, and a strong democratic resistance.  The truth is out there to be found. 


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