How hard will Democrats fight against Trump's nominee?

In less fraught times, when a president has been elected with a minority of the popular vote, and with the Senate so closely split (51-49), a reasonable president would more likely nominate a moderate -- at least a non-ideological -- court appointee.   Just as Obama did in choosing Merrick Garland.

Lot of good that attempt at consensus did.   Mitch McConnell just grabbed the advantage and denied Garland even a hearing by the Judiciary Committee -- invoking a non-existent tradition of not considering a Supreme Court appointment so close to the end of president's term (when the seat opened due to Scalia's death, it was almost nine months until the election;  Obama nominated Garland on March 16, almost eight months before the election.)

Democrats went along with McConnell's trechery, more or less.   At least whatever they did was not effective.   But they are fired up this time, as McConnell evokes another made-up rule:   that his ban doesn't apply when it's not a presidential election at the end of a second term.   So it's OK for Trump to immediately nominate (less than five months from the election), and McConnell says the Senate will vote on it this fall, presumably before the November election.

There's another seldom mentioned fact:   McConnell says "let the people decide."  But the majority of voters in 2016 did not choose Donald Trump.   Hillary Clinton got almost 3 million more votes than did Trump.   So should it be the arcane electoral college process that is "the people's voice" -- or the popular vote that is "the people's voice"?

Yes, the Democrats were robbed.   Yes, they have an understandable rageful revenge that wants to deny Trump what was denied Obama.

But here's also a more rational argument from Senator Cory Booker (D-NJ), heard Thursday night on "The Beat With Ari Melber" -- and repeated frequently by others since then.    Booker says that Trump should not make a nomination at this time, because he is under criminal investigation by Special Counsel Robert Mueller.

His nominee will likely be called upon to vote on any of several questions that may come before the court involving Mueller and Trump himself:   the right for Mueller to subpoena Trump to testify;   whether a sitting president can be indicted;   whether he can pardon himself;  whether the special counsel appointment was constitutional;  whether Mueller's report can be released to congress, or to the public.

Booker bolsters this with the knowledge that Trump has a habit of demanding loyalty from people he appoints or hires.    Why did he break all precedent by personally interviewing, in the Oval Office, the nominees to be U.S. Attorneys in the Southern District of New York and in the Washington, D.C. area of Virginia?  Presidents do not typically interview appointees at this level.   But Trump did -- just for these two spots -- and only those two out of the more than 50 U.S. Attorneys.

Does it have anything to do with the fact that those are the two places that cases against Trump are likely to come up?    New York, where he lives and where the Trump Organization operates;  and Washington, where anything during his presidency would be handled if an indictment were considered.   At least the new N.Y. U.S. attorney has recused himself from the Michael Cohen case.

Now the question is:   what are Democrats going to do about it?    Will they be more effective this time around?

Ralph

Some hope Collins, Murkowski might hold line against ultra-conservative nominee

Shock waves spread across the liberal-progressive landscape as Justice Anthony Kennedy's retirement announcement sinks in.    Legal affairs commentator Jeffrey Toobin is predicting that up to 20 states will totally ban abortion -- and get away with it under the new Trump Court.

But there's a slight ray of hope in two Republican senators:    Sen. Susan Collins (R-ME) and Sen. Lisa Murkowski (R-AL). both who have voted as moderate Republicans on a number of issues that went against their party.   They might vote against a nominee who would totally reverse Roe v. Wade.

Personally, I wouldn't be too surprised if Sen. John McCain might join them, if he's still in office and able to vote.   Remember how he dramatically killed the Republican's attempt to kill Obamacare?

Then, depending on the outcome in the November midterm election, the Democrats could even win the majority.

Now, lest I sound like Polyanna, losing Kennedy's voice and vote is an enormous loss.   We're going to have some progress reversed, no doubt -- including the Affordable Care Act, or at least the pre-existing conditions issue.   Again, the Republican moderates,  Collins and Murkowski, would vote against that.

Ralph

Justice Kennedy to retire

It's only Thursday, leaving plenty of time for things to get worse.  But, even if nothing else piles on, this week qualifies as a bad one -- politically, that is.

A number of Supreme Court decisions (on voting districts, on Trump's travel ban, on gutting the power of unions, on abortion, on the death penalty -- and, anticipated for next term, partisan gerrymandering) depended on Kennedy's deciding vote.  And then today one of my greatest fears piled on.

Justice Anthony Kennedy announced his retirement.   Kennedy has been the swing vote on most cases where a 4 to 4 divide eventually went the liberal way.   Of course, he also was the swing vote in ones that went the other way too.   But none of the other "conservative" justices came close to siding with liberals at often as Kennedy.

Most notably, Kennedy wrote the majority opinions in all the major cases where sexual orientation and gender identity were updated into the modern world.    And he wrote eloquently and with great feeling and respect for inclusiveness.

Now Trump will nominate his replacement, and Majority Leader Mitch McConnell has already said that he will hold the confirmation vote in the fall.

What we should expect is that there will now be a firm 5 to 4 split, with conservatives having the advantage -- and without the hope of one breaking away to vote with the liberal justices.

It's a sad, terrible, awful, no-good day.

Ralph

Dissent from SCOTUS' travel ban decision

In a series of decisions announced in the last days of this court season, the Supreme Court gives the impression of a definite right-ward tilt.   Decisions on voter suppression, redistricting, abortion, and now Trump's travel ban.

As Fortune Magazine's Renae Reints reports:

*     *     *     *     *

"The Supreme Court upheld President Donald Trump's travel ban Tuesday, siding with the president in Trump v. Hawaii.   The 5-4 decision legally allows vast immigration restriction from several majority-Muslim nations:  Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

"While the court's opinion stated the president had 'sufficient national security justification' to order the travel ban, Justices Sonia Sotomayor and Ruth Bader Ginsburg issued a scorching dissent calling attention to Trump's anti-Muslim rhetoric on the campaign road.

"'The United State of America is a Nation built upon the promise of religious liberty,' they wrote.  'Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.   The Court's decision today fails to safeguard that fundamental principle.  It leaves undisturbed a policy first advertised openly and unequivocally as a 'total and complete shutdown of Muslims entering the United States' because  the policy now masquerades behind a facade of national-security concerns.'

"Their quotation refers to a statement Trump made in December 2015.  'Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on,' he said then, at a South Carolina rally.

"In the dissent, Sotomayor and Ginsburg accused the court majority of 'ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.'

"'The full record paints a far more harrowing picture from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith,' they wrote.

"The dissent continued to give Trump's full statement on banning Muslims, which remained on his website until May 2017, several months into his presidency.   From there, Sotomayor and Ginsburg account every moment during Trump's campaign, month by month, where he defended his position on banning Muslims.  After some time, Trump's language surrounding a ban took a turn, focusing instead on 'radical Islamic terrorism.'

"'Asked in July 2016 whether he was pulling back from his pledged Muslim ban, Trump responded, 'I actually don't think it's a rollback.  In fact, you could say it's an expansion,' Sotomayor and Ginsburg account in their dissent.  'He then explained that he used different terminology because 'people were so upset when [he] used the word Muslim.'

"Continuing their account to when Trump signed the travel ban and thereafter, Sotomayor and Ginsburg provide detailed evidence of Trump's personal view on Muslim immigrants and how he incorporated this rhetoric into his political policies, determining that with all the evidence, the travel ban is clearly motivated by anti-Muslim fervor.

"'Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments,' Sotomayor concludes.  'Because the Court's decision today has failed in that respect, with profound regret, I dissent.'"

*     *     *     *     *

Powerful, persuasive words.   But the conservatives have the votes.   In these last few big decisions, Justice Anthony Kennedy seems to have regained his inner conservative core -- after having provided the much needed fifth vote for most of the major decisions on gay rights and marriage equality.

Let's hope this is not a prelude to an announcement of his retiring.   If Trump gets the opportunity to appoint another justice, we are stuck with a very conservative court for years to come.

Of course, it's really the result of Senate Majority Leader Mitch McConnell's stealing the SCOTUS seat vacated when Justice Antonin Scalia died.   McConnell refused to take up President Obama's nominee Merrick Garland, whose nomination was made in March before Obama left office the following January.   McConnell invented the fiction that that close to a presidential election, "the people should decide" [i.e. by whom they elect as president].

This means that Obama's nominee was completely bypassed and that Trump got to make the nomination.   The irony is that "the people" didn't actually decide, because Trump did not win the popular vote.   He won the presidency because of the electoral college rules, but "the people's decision" really should be the popular vote, it seems to me.    And Hillary Clinton won that.

Beyond even that, though, McConnell's claim is pure politics.    Let him offer that rule change the next time his party has the presidency.

Such debate is really irrelevant in this case.   The people did make a decision.   They elected Barack Obama for a second term, and it did not end until January 2017.   During that time, he was the President of the United States and had all the duties and responsibilities, including nominating Supreme Court Justices.   The seat was stolen.

Ralph

Workplace sexual harassment -- a study

HuffPost's Emily Peck reports on a major study of sexual harassment within organizations by the National Academies of Sciences, Engineering, and Medicine.

They found that just blaming -- and getting rid of -- the individual perpetrators is not enough.   A more comprehensive way of looking at it has little to do with the individual act.   It's more a matter of the culture of the organization that makes the difference.

1.  A Culture of Harassment:  The study found the the strongest predictor of sexual harassment is what the researchers call "organization climate."   If employees believe that the organization takes harassment seriously, then it is less likely to happen.   Faith that complaints will be heard and taken seriously "acts as a deterrent against bad actors and encourages workers to speak up about harassment -- key to keeping bad behavior at bay."

Lilia Cortina, a University of Michigan professor of psychology and women's studies, one of the 21 researchers who authored the study, said that the belief that a company will fairly handle harassment even trickles down to would-be perpetrators, who become less likely to actually harass anyone if they understand there are real consequences.

The study consisted of a group of experts reviewing research published over the last 20 years in peer-reviewed journals, as well as a survey of women who answered questions about their experiences.   In addition, they conducted an analysis of student and faculty survey data from two large state university systems.

A key conclusion:   If you dig to the bottom of any of the recent news reports on men who've been accused of sexual misconduct, you'll typically find a twisted corporate culture.    An example was NBC News where Matt Lauer was fired for misconduct last year.   There was a climate of flirtation with sexual overtones that was tolerated;  women were afraid to report misbehavior because they knew it would not be acted upon, and they feared retaliation and didn't think their complaints would be kept confidential.

This, according to Peck, is what is meant by organizational climate.  Intentionally or not, NBC employees got the message that the company, which is mostly run by men, didn't want to hear about their problems with Lauer, a network star.   Remember Donald Trump's now-famous line from the Hollywood Access tape:  "When you're a star, they let you do it."

2.  Men Outnumber Women:  If an organizational culture of harassment is the first predictor, the second most important predictive factor is an organization in which Men Outnumber Women -- particularly at the top of the organizational chart.    At Nike, for example, women were reportedly routinely mistreated, demeaned, and under-valued.  There were corporate outings to strip clubs, bosses who groped subordinates and entire departments where weren't welcome, according to the New York Times.   Finally, a group of women together talked with the CEO, which sparked a cultural upheaval at the company.

The National Academies study has recommendations for companies to root out harassment.    The first step is to provide not just a statement that harassment is not tolerated;  there should be detailed and clear examples of what behavior is not acceptable.   Facebook offers a list of unacceptable behaviors, including insensitve jokes, sluts, unwelcome advances, leering and more.

And companies should explain what the consequences are.   The researcher Cortina explained that just saying the company has a zero-tolerance policy can be counter-productive, because "victims will be reluctant to come forward, fearing they will cause someone to be fired."

It is recommended that businesses should dispense with the secrecy and let employees know what sorts of actions have been taken.   Settling cases in secret, or shrouded in non-disclosure agreements, leaves everyone in the dark.

Finally, they recommend surveying employees anonymously to find out the scope of any harassment problem.

This research report is an important positive step.   We've all been immersed in the harassment scandals, news scoops, and public shaming.   This goes at the problem in a different way.

Ralph

Trump team's policy -- incompetence? or deliberate cruelty? Or both?

To continue my last post on the sheer incompetence of the Trump administration, I turn to my favorite Atlanta Journal-Constitution columnist Jay Booker.

One Homeland Security Department official told Politico that the biggest problem is that "the kids' records don't have any information about the parents.  I don't know how they're going to go about fixing that."

After touring one facility, U.S. Rep. Will Hurd (R-TX) said that, as far as he could tell, the administration had "no established system for even tracking children and parents, let alone putting families back together."  Booker picks it up there:

*     *     *     *     *

"'When the family separation policy was implemented, there doesn't seem to have been any planning as to how parents were going to know where their children were, how children were going to know where their parents were, how they were going to be able to communicate,' Mark Greenberg, an expert at the Migration Policy Institute, told CNN.

"The Justice Department is handling prosecution of those parents.  The Department of Homeland Security is handling detention of the parents.   The Department of Health and Human Services is contracting with the private shelters to hold the children.  No cross-agency system exists to communicate among the three, and the administration has put the onus on imprisoned parents, not on the bureaucracy, to find and return their children.

"As a result, parents are being deported without their children, without even knowing where their children are.  They are being sent back to Third World countries with poor communication systems, and in most cases they lack the education, experience and economic resources needed to reach back to the United States and negotiate the bureaucracy.  Experts say it is very likely that some families will never be reunited, which means that we have created orphans through sheer bureaucratic incompetence.

"Under any administration but this one, that would be unbelievable.   But the three hallmarks that mark a Trump policy are cruelty, deception and incompetence, and all three seem to be on brilliant display here.

"As a policymaker, if you decide that separating parent from child is a necessity to deter the flow of asylum seekers, if you somehow convince yourself that's a wise and moral policy, then surely -- surely surely surely -- you recognize that you have taken on a fundamental responsibility.   Out of respect for the basic unit of society, the family, surely you make it a priority to ensure that what you have forcibly dismantled, you can later put back together again.   As a leader responsible for others, as a human being, surely you do that much.

"They did not do that much.

"You could call that incompetence, which it is, but its import runs much deeper.   The failure of the Trump administration to perform that basic function, to carry out the basic responsibility that they placed upon thgemselves, tells us that they just did not give a damn.   They didn't see these families as human beings to whom they had an obligation.  In the terminology of the president, they saw them as an 'infestation.'"

*     *     *     *     *

Maybe the message on Melania's jacket, as she boarded the plane to fly down to the border to visit the holding facilities for immigrant kids, was a real message -- not of her own disdain -- but more like a secret sign hung outside a prison window, trying to tell the world something she cannot say out loud.   That she is trapped by all kinds of Trumpian non-disclosure agreements and cannot speak freely, but she is trying to tell us that her husband and his people "just don't care."    Maybe the "Do you?" is a plea -- saying to us -- It's up to you to do something about this.

Ralph

Cruelty and incompetence may have gone too far and provoked a tectonic shift.

The Trump administration, and hence our government itself, has emerged in full flower this week -- and it is a cruel, chaotic mess.   It's now obvious that the original zero tolerance policy of incarcerating every person who crossed our Southern border without  legal authorization was put in place without planning or consideration of consequences.

Because of laws protecting children from being held in jail, this necessitated separating them from their mothers and/or fathers.   And now we find out that they had no plan whatsoever of how they might eventually reunite parents and children, who in many cases had been shipped to facilities half a continent away.  In another smaller number, some parents have already been deported without their kids, and don't even know where they are -- just somewhere in the U.S.

One activist worker found that, of some 40 mothers she worked with, whose children had been taken from them, not a single one knew where her children are.  And so far, the agency responsible is unable or unwilling to tell them.

Further, we now find out that this was intentional.   Our government was so intent on using separations as a deterrent (despite now denying it) that they weren't even thinking about families as human beings, or the effects of trauma on young lives, and the anguish of parents whose babies were, in effect, kidnapped and being held for ransom by the United States government.

The ransom demanded, of course, being forcing the Democrats to vote for the Republican version of an immigration bill, including fully funding Trump's stupid Wall.  This is coupled with the propaganda, willingly spread by the Trump TV network (aka Fox News) and the right-wing blathersphere.

Of course, those who get their news from other sources already knew that it was Donald Trump, egged on by senior policy adviser Stephen Miller whispering in his ear, that set this whole thing in motion with his original Executive Order.   It was as rashly and inadequately planned as was Miller's first big project:   Trump's original Muslim travel ban.

Here's what happened.   In the Obama administration, which was followed by Trump for the first year, those who crossed the border without authorization were picked up.   If they had no history of other criminal activity, they were given a court date and released -- which the Trump people derisively refer to as "catch and release."   Trump claims that only 3% ever show up to court.  That's not true.  No good records are kept, but one indication is that it may be as high as 70% who return to plead guilty and take their punishment.

The intent and effect of the Sessions-Trump zero tolerance policy is that every one who crosses the border illegally is now put in jail.   So that change is what created the problem of huge numbers of children separated from parents.    That's not to say that there were no separations before this.   Clearly, even for American citizens legitimately put in jail, their children can't go with them, except temporarily while other arrangements are made with family, friends, or social agencies.

It's the scale of the numbers that's different.   And that is different because Trump is treating as "criminal" -- as in serious crime requiring jail -- everyone who commits the misdemeanor of illegally crossing our borders.  That's what's different.   Misdemeanors don't usually get you jail time (think traffic violations, petty theft) if you have no previous record, which most of these parents do not, especially the ones fleeing for their lives and asking for asylum in the US.   Why treat them as criminals?    At the very least, they should not jail the ones seeking asylum who crossed illegally only because they were turned away at the border crossing without an asylum-eligible hearing?

Trump's second photo op Executive Order about not separating children doesn't solve the problem.   It just seems to temporarily calm the PR problem (which is also a very real, human problem) on separation.  But why not do the right thing and reverse the zero tolerance policy that says everyone has to go to jail simply for the misdemeanor of crossing illegally? 
  
He's done nothing to fix that.   It will result in private contractors now making billions to construct these tent internment camps to house tens of thousands of parents with their kids, plus other big contracts to provide beds and plumbing, and food.  This is not a solution.   If he really wanted to address the real problem, he wouldn't even need to set up a photo op (though of course he would do it anyway -- that man does love photo ops).   He could just send out an order to his Attorney General and Secretary of Homeland Security and tell them to stop putting misdemeanor offenders in jail.  Stop the zero tolerance policy.

Beyond all this, though, it's time to comment on the incompetence of this administration.   We've known the lack of staffing, plus the fact that President Trump does not pay much attention to those  he has -- except to a select few who tell him what he wants to hear.

In a complex policy decision with consequences like this, inter-agency coordination  is necessary.   You can't do it on a whim on the fly.   It requires planning by those who can anticipate problems because they have experience.

In contrast, Trump is as likely to take advice from Sean Hannity, or the friend with no government experience that he had a late night phone conversation with;  or base a decisions on the effect he thinks it will have on international trade, or how it will affect his polls.

This, folks, is what you get with someone like Trump.    He has no respect for those who know what they're talking about -- either through factual knowledge or long experience.   Rather, he believes what he hears in his own head, spouts it as fact (even when it's demonstrably the opposite), and that becomes United States policy.

One simple example:   Trump refuses to quit telling the lie that immigrants (especially those who come from our Southern neighbors) bring crime and drugs and disease;  he has just this week called them as "an infestation."   The fact has repeatedly been pointed out to him:   immigrants are less likely to commit a crime than those who were raised in the United States.   But Trump prefers to believe the voice in his head that says they're all MS-13 gang members or potential members.  He has to paint them as undesirable, even dangerous, in order to shore up his political base.

Long-time GOP strategist and adviser to presidential candidates Steve Schmidt  has resigned from the Republican party, saying that there is now only one major political party that will foster the restoration of our democratic principles and values -- and that is the Democratic Party.    Conservative columnist George Will has now also weighed in -- encouraging people to vote for Democrats in the midterm election.   Only with a Democratic majority in congress will any restraints be put on this president, because the Republicans are unable to muster the spine to stand up to him, according to Mr. Will.

Bad as this week has been, I have the feeling that we've seen the beginning of a tectonic shift.

Ralph