Blocking John Podhoretz: When Self-Esteem Finally Kicks In

jpodBenjamin M. Adams on April 10, 2017   @BenAdamsO_O

Let me be clear. J-Pod blocked me first, and it was basically for no reason. Nobody had ever blocked me before he did it, and nobody has blocked me since. Truth be told, one twitter fruitcake has recently blocked me and thereby proven to be the exception. However in doing so, Shatner has simultaneously proven the broader rule: That it is *straight cray* to block me on twitter. The only reason to block me is if you are deathly allergic to either snark or reason, in which case your twitter-life seems destined to be nasty, brutish and short.

Granted, I was new to twitter when Podhoretz blocked me. Granted further, we were in the frightening-2016-resurgent-anti-semitism twitter. I was mostly unfamiliar with twitter-culture, oxymoronic as that term may sound and be. Equally important is the fact that people I followed were new to me. Sure, I’m basically just a rando dude on twitter, but to the people I follow, I’m a known rando dude. People I follow generally understand that my primary twitter aspiration is to personify the platonic form of smart-ass. They also generally know that I oppose things like, um, Nazism.

Anyway, to make a long story around a thousand words, there came a day that John retweeted a Nazi who had used a repulsive Jewish slur against him. I think the slur rhymed with bike, but I don’t remember. Racial epithets mostly sound the same to me, although I will remember the n-word forever if you say it the wrong way.  So I tweeted at John, asking him why he would give a platform to such vile anti-semites. My opinion is that retweeting these cretins gives them the thirty seconds of fame that they crave. More importantly, retweeting them simply serves to encourage rather than deter them. Put more simply, why give succor to evil by giving it a broader audience? So that’s my opinion on the matter. I figured John had a different opinion, which is why I asked him about it in my tweet. I guess John did not appreciate my question because he blocked me without answering. I fully admit to a feeling of disbelief. Incredulously, I cried into the void. The only response that came back was from the Nazi, who consoled me. “Don’t sweat it. He blocked me too.”

So I guess there *is* a bright side to most things. In this case, there are no less than two. First, it seems that I was able to bring out the nurturing side of a Nazi. Second, and no less important, is that J-Pod will not be be further distracted by my tweeted thoughts and questions. That will leave John with more time to write about how the Left is intolerant of debate.

John is Going to Stay Blocked For Now

While I am open to the idea of someday unblocking J-Pod, I am not sure that a speedy rapprochement is in John’s best interest. Let him miss my delicious thought-nuggets, and let him ask himself why. When this questioning becomes more frequent, John may be forced to look deeper inside himself. Perhaps John will realize, in a consequential rather than the typically fleeting sense, the same thing that I have come to realize: That I am too quick to react and too harsh in my reactions, and when I succumb to those impulses, I am a verifiable asshole. Same goes for you, John.

John, please realize one more thing. I am a small man. As a consequence of this bred-in-the-bone pettiness, I take the most infinite pleasure in the idea that you will from time to time find yourself blocked from reading my tweets. I admit to fully and corruptly adoring the thought of you scratching your scalp and feeling some mix of confoundment, confusion, and contempt. John, when I said that I was a small man, I meant really, really small. Can you hear me now, John? Well now. I guess you can’t. Instead of hearing me, see the same “unavailable” inanity that I must countenance each time your thoughts cross my TL.

John, there is a final thing that I ought to have shared– some truths about my maternal great-grandparents: Isadore was from Crackow, Poland. He married a woman named Bertha. She was from Hungary. Bertha was one of four children, but all of her siblings were killed by Nazis. So when you blocked me along with that redneck-wannabe-nazi, you were suggesting to the world that I was somehow a sympathizer of these vile, Nazi-loving cretins even though I owe my very existence to the sheer happenstance that allowed one of my ancestors to escape their murderous rampage of evil. So, John, you need to stay blocked for now, simply because this is the most effective way that I can encourage you to contemplate the moronic, unbridled dickishness of what you did.

My descendance from Holocaust survivors does not, as it turns out, begin to explain why I feel personally offended by racism. Rather, and probably to a myopic extent, I grew up understanding race in terms of  white people against black people — as a continuing, centuries-long conflict between the evil of white supremacy versus the resistance of the descendants of the African people enslaved and oppressed under its doctrine. I still see white supremacy as focal to understanding American social and political development, but contemporary local and world politics obviously reflect bigotry across a far broader spectrum than merely black and white. This includes surging Anti-Muslim sentiment, hatred and violence against the LGBT community, political targeting of “Mexicans” and of course the ubiquitous anti-Semitism now boldly emerging from the shadows. Let’s face it. It’s kind of ugly out there. At some times more than at others, it feels like bigotry is on the march and good people are reminded by Dr. King to oppose injustice anywhere as a threat to justice everywhere. In that sense, I am compelled to oppose bigotry whenever I see it– not simply when I see it directed against “my own.”

Maybe this is one thing that sets me apart from John Podhoretz. Racism is the number one reason — by far — that I never supported the GOP.  John wasn’t similarly hampered by the same reservations, but that’s a post for another day. For today, I want to be on good terms with Podhoretz. Accordingly, I will not link to controversial writings about his anti-gay sentiments, nor to his history of low-brow insults. I further refuse to hold his father’s racism against him, nor do I blame him for his receipt of nepotistic benefit when he took his current position at Commentary. I refuse to do *any of this* because Americans need to start reaching across the divides or partisanship, sectarianism, and ideology. I even apologized to Hugh Hewitt for heaven’s sake, so anything really is possible. The key and missing ingredient in this process is that Americans need to start listening to one another more and they need to start listening better. While that may not happen for me and J-Pod in the immediate future, I still have the audacity to hope.

Immunity for Flynn: Don’t Do It

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Benjamin M. Adams   —    March 31, 2017   —   @BenAdamsO_O

Over the past couple of months, I’ve tweeted a bit about immunity, mostly because it’s made up of the hot, thick smoke that means fire is close. Beyond its significance as a signal of culpability, discussions about immunity normally indicate progress in an ongoing prosecution. The mini-thesis of this post is that Flynn has been caught and should not be given immunity. He should be tried and sent to jail if found guilty. The one instance in which Flynn should be immunized is if he is able to directly implicate President Trump.

Several additional thoughts on immunity:

  • Flynn is busted. Registering “retroactively” as a foreign agent is like getting a law license retroactively when you’ve been caught practicing without one. It doesn’t work that way. He also may have lied on his background forms. Those are relatively small things, but Flynn took money from Russia and Turkey so more serious charges are possible. Either way, Flynn is guilty of crimes that could send him to prison. That’s where we stand now.
  • Flynn is probably desperate for immunity. He has been caught violating federal law. If he can finagle immunity for testifying, Flynn will have gotten away with those crimes. Sensing the opportunity, Flynn’s lawyers have gone public, attempting to whet our appetites with promises of a “story to tell.” The trouble with that is public opinion doesn’t get you immunity. What gets you immunity is specific information that investigators and prosecutors want from you.
  • Prosecutors cut immunity deals when a drug dealer testifies against their supplier or when an employee testifies against their boss or when one politician implicates a senior, more powerful one. Investigators always move up the chain, not down, and they are doing that now. One can argue that only POTUS, and perhaps Pence, are up the chain from Flynn. Since Flynn has yet to secure a proffer of immunity, it suggests one of several possibilities. First, Flynn may not have inculpatory information on Pence or Trump. Second, he may have the goods, but is still attempting to get immunity while still protecting them. A third possibility is that Flynn has the goods and will get his immunity at the end of the day, but that he is being allowed to blow in the breeze for right now.

No matter what happens, we ought to caution against turning Flynn into the 2017 version of Ollie North simply because we are eager for information. Last night on The Rachel Maddow Show, Wall Street Journal reporter Shane Harris (who broke the immunity story) argued that Flynn, “clearly . . . has a story to tell . . . and it makes perfect sense . . . that he would seek those [protections] before he gives that testimony to investigators.” One hopes Shane Harris was merely paraphrasing the arguments of Flynn’s attorneys. Either way, the assertion is utter nonsense. What makes “perfect sense” is that Flynn is a rat trying to save his own skin. Sure, I’d like Flynn to turn states evidence and implicate everyone except Trump in one fell swoop, but that temptation should be resisted. If Flynn has the goods on Trump, we can let him walk just for the sake of ending our national nightmare. If not, then prosecutors should try to “lock him up” like he deserves.

Are Progressives Finally Waking Up and Realizing the Filibuster is Their Enemy?

By Benjamin M. Adams       March 27, 2017        @BenAdamsO_O

In 2000 and again in 2016, Progressives were screwed by the peculiar anti-democratic nature of the electoral college. In both years, more votes were cast for Gore and Clinton yet the lasting legacies of those elections are: The Iraq war, Alito & Roberts on the Supreme Court and whatever mix of policy chaos and appointments that will inevitably flow from the Trump presidency. Progressives must realize by now that they are disadvantaged by the anti-democratic nature of the electoral college, without realizing that the filibuster has an even stronger anti-majoritarian tendency than the electoral college. Under Senate filibuster rules, you can have 59% of the senate votes and still lose. In a presidential election, the winner of 59% of the votes would never lose the electoral college.

There is a critical distinction, however, between these two anti-progressive institutions. That is, DEMs can actually do something about the filibuster. For practical purposes, the electoral college can’t be changed. It requires a Constitutional amendment and a sufficient number of states would never sign on for reasons that go beyond this essay. However, the filibuster can be addressed and the GOP is even willing to do the dirty work for them. Progressives should not allow the DEMs to blow this opportunity.

Here’s the full badness of the filibuster on display:

  • The 29 most populous States in the US total approximately 273 Million. (273,269,546)
  • The 21 least populous States in the US total approximately 35 Million. (34,886,792)
  • The representatives of those 273 million Americans would produce 58 Senate votes, not enough to overcome the 60-vote cloture threshold.
  • Thus, the filibuster at its mathematical worst gives 35 Million people a veto over 273 Million. This is not a mere super-majority. This is categorically anti-democratic.

(Statistics from Wikipedia and the 2010 Census)

So why do progressives view the possible loss of the filibuster as a net negative? The answer is short term thinking. Right now, the filibuster is the DEMS best tool to defeat GOP legislation in Congress. Having no filibuster in 2017 and 2018 means Trump will have an easier time pushing his agenda through Congress. Then again, if there was no filibuster in 2009, we would be 8 years into a single-payer healthcare system.

Essentially, the fight over Gorsuch may be helping progressives realize that in the big picture of things, the filibuster is not a friend of progress. The easiest syllogism I can imagine is this: (1) The filibuster gives great advantage to the status quo over change by requiring large super-majorities, (2) Progressives, by definition, do their thing by changing the status quo, and therefore (3) the filibuster disadvantages Progressives.

QED

Notes

  • The filibuster is not in the constitution. Until 1917, cloture required 100 votes.
  • Any discussion of  the filibuster needs to account for the fact that its historical impact has been to grant outsized influence to white men from rural states.
  • Common Cause and Senator John Lewis tried to sue the Senate over the use of the filibuster. The plaintiffs were represented by the infinitely capable Eric Segall (@espinsegall) but the case was appropriately dismissed for lack of standing.
  • The best political science book on the filibuster (IMO) is Filibuster: Obstruction and Lawmaking in the U.S. Senate by my former prof Gregory J. Wawro & Eric Schickler

 

Hamilton 77 & Amendment 28: A Better Way to Choose for SCOTUS

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By Benjamin M. Adams, March 20, 2007, @BenAdamsO_O

Who denies that the confirmation process for Supreme Court Justices is not merely broken but grotesquely so? What dignity remains therein for anyone wishing to defend it? The first time I watched confirmation hearings on television came in 1991, when George H.W. Bush nominated Clarence Thomas to replace Thurgood Marshall. Those confirmation hearings, which took place under the auspices of Judiciary Committee Chairman Joe Biden, taught me exceedingly little about Justice Thomas’ Commerce Clause jurisprudence. I did learn, however, an unexpected amount about his alleged taste in pornography. I note that my disgust at the Thomas hearings does not reflect a belief that Justice Thomas spoke to Ms. Hill appropriately at all times. As her boss, Thomas crossed the line terribly, if the allegations of Ms. Hill are all true. That particular topic ought to be debated, but that inquiry is separate from the question of whether Ms. Hill’s last-minute allegations ought to have disqualified him from serving on the Supreme Court after a lifetime of preparation. Beyond dispute is that a smear campaign took place against Thomas designed to portray him as a sexual deviant, replete with all the dogwhistles from the left that one might imagine.

Still bitter at Democrats from his confirmation mugging, my guess is that Justice Thomas is absolutely certain to retire under a Republican President so as to ensure that he will be replaced with a conservative jurist. I wouldn’t be surprised if a Gorsuch confirmation this spring is closely followed by a Thomas retirement, but that is based almost exclusively on speculation. At the other end of the figurative bench, RBG missed the immensely long window which was open during the Obama years. She eschewed retirement under a liberal president as she approached and then passed the age of 80, rejecting the opportunity to retire strategically, as Thomas surely will. Justice Ginsburg is now looking at a minimum of four more years on the bench, assuming she doesn’t want to see Donald Trump replace her on the Court. One can only assume that the Justice loves her job, even in her 80s, despite the demands of the position. I really do admire her immensely for that.

While the 1991 Hearings were abhorrent, it is my estimation that the bar has moved remarkably lower since that time. When Merrick Garland was nominated in 2016, he was neither smeared nor maligned. Instead, the Senate simply ignored Mr. Garland and ignored their constitutional duty in the process. These are strong words but they are the thesis of this essay: that the Constitution confers upon the Senate the right to reject a nominee for any reason, but also imposes  upon the Senate  a duty to hold hearings and a vote on the nomination. The Senate’s refusal to hold hearings for Mr. Garland, or any other nominee, represents a sound rejection of the Framer’s intended Confirmation process. I will explain why.

Article II of the US Constitution states that the President, “shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court.

This is a most meager amount of text with which we can work, but we still can glean some clues. First, the Constitution places an affirmative duty to act through the use of the word “shall.” There is no option to not act. The Constitution says that the President and Congress shall. Yes, one might argue by way of syntactical deconstruction, that the word shall only modifies the word nominate and not the words “advice and consent” Correspondingly, one would then argue, that the affirmative duty applies to the President but not to the Congress. Such an interpretation, however, is self-serving formalism– the type that not only misses the clear intent and spirit of the Constitution, but flouts it instead. Indeed, it defies all logic to imagine that the Framers, when delineating the contours of the confirmation process, decided to impose an affirmative duty on the President to nominate a judge while rendering discretionary the role of Congress in this singular process. Such an interpretation turn the entire process on its head. It also turns history on its head, as the most basic inquiry will reveal.

The text itself also suggests that the Framers intended at least some deference to the President. After all, the word “consent” is used. “Advise and Consider” would connote less deference. “Advise and Vote” would connote no deference. Having said that, I am not a rigid textualist when it comes to this type of thing. More to the discreet point, I subscribe to the view that preambles lack specific Constitutional meaning. While preambles are not meaningless, they need to know their place, so to speak. For example, I reject a Second Amendment interpretation in which the “well-regulated militia” tail wags the “right to bear arms” dog. Thus, any deference suggested by the words “advice and consent” is overridden by the agency granted to Senators under the Constitution. Senators are free to ignore the guidance afforded them in the preamble, and they do.

Thus, I hold the view that Senators may base their confirmation votes on litmus tests, or on constituent opinion, or on partisanship, or on any other smart or stupid metric they choose to adopt. I take no position on what guides a Senator’s individual confirmation votes on any given nominee, other than conscience. Senators have every right, as Hamilton says in Federalist 77, to “employ . . . their right of negative upon” any given nomination. The check on potential abuses is that Senators are accountable to voters. That is a foundation of our Constitutional democracy. However, in order for that Constitutional democracy to function properly and as intended, a minimum of hearings and a full Senate vote are required.

Guess who agrees with me. If you picked Alexander Hamilton, the man who authored Federalist 77 and 78 to explain and advocate for the Constitution’s confirmation process, you won. In fact, those two essays remove any doubt as to why the Framers entrusted the Senate with the right to block presidential nominations, which they most certainly did as a way to prevent a President from appointing cronies and incompetents. Here is a key point:

In Federalist 77, Hamilton makes clear his belief that the Senate will act as a responsible check on the President — and can therefore be trusted with the power to reject a nominee — because if the Senate rejects a good nominee, the public will know about it from hearings and will know exactly which Senators voted against confirmation. Hamilton in his own words:

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The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate

***********

Hamilton is plain as day. If the Senate tries to reject a qualified candidate, they will be exposed by the hearings and individual Senators will be punished at the polls for their votes. For that reason alone, Hamilton believed that the Senate would not abuse its power by unfairly rejecting a qualified nominee. However in 2016, the GOP majority in the Senate wanted to do just that — reject a qualified nominee named Merrick Garland. Hearings and a vote would have exposed his members at the polls, as Hamilton intended. This presented a problem for the Senate Leader, which he “solved” by cravenly disregarding the Constitutional protections elucidated in Hamilton’s 77 — first by neglecting the Senate’s obligation to hold hearings and then by neglecting the Senate’s duty to hold a vote — thereby eliminating the electoral accountability essential to the healthy functioning of our Constitutional democracy.

Thus we can see that the Senate’s refusal to hold hearings and vote on the Garland nomination represents a fundamental and monumental breakdown both of the normal constitutional order as well as the political norms of our democracy. Lest there be any doubt remaining on this point, Federalist 76 further reinforced the notion that the Constitution requires the Senate to act upon presidential nominations and does not anticipate nor allow for the refusal of a branch to take up its Constitutional function. In 76, Hamilton again discusses the split at the Convention between those who wanted the President to have the power to appoint (no Senate confirmation) while others prevailed in favor of a power to nominate with a Senate that can block the nomination. Speaking of those who advocated a system of Presidential appointment — meaning no Congressional consent would be required — Hamilton states:

They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

***********

This last part is critical. Hamilton is pointing out that the Senate is never going to be able to control the appointment because a President will respond to any Senate rejection by appointing another nominee that he likes. So, Hamilton concludes, the Senate can reject nominees all they want but in the end they will need to confirm SOMEBODY and that somebody will be a person nominated by the President. What is clearly not anticipated in Hamilton’s explication is the idea that the Senate would refuse to confirm ANYONE. As an American patriot, Hamilton could not anticipate Mitch McConnell and the current neo-nihilism of the modern GOP. Hamilton probably could not have anticipated the “nothing matters” public discourse nor could he have imagined the contemporary post-truth political climate. Beyond anything else, and more directly to the point, one suspects that Hamilton could not have imagined a leader as craven and feckless as McConnell. Hamilton certainly would have recognized the great irony in Mitch McConnell willingly subverting the Constitution in order to get a so-called “Constitutionalist” onto the Supreme Court.

In any event, the case is clear — the Senate employs its right of negative upon presidential nominations not by abdication of its responsibility but through the fulfillment thereof — by holding hearings, taking a full vote, and then facing the voters.  Anything less lacks Constitutional legitimacy. Mitch McConnell and the Senate GOP are cynical cowards for their approach. The Democrats have every reason to attempt the same approach that worked for GOP — that is, keep Scalia’s seat open in the hopes of a DEM victory in 2020. Let’s hope they don’t. Gorsuch is a fine jurist and seems from all appearances to be a man of high character as well. He should be confirmed. If Gorsuch is not confirmed, however, it will not be for a lack of hearings. Thus, his denial of the seat would be very tough political payback, but nothing beyond that.

When did it get so bad? You are telling me that it gets much worse?

The nomination of Robert Bork is generally thought of as the moment when the politics of Supreme Court nominations became mostly about politics and less about qualifications and deference to the President. For those who say the process was always rancorous and partisan, I would remind you that Justice Scalia was confirmed 98 to 0. As a consequence,  the words “Advice and Consent” have been stripped of their intended meaning like never before. A venerated tradition of vetting the nominee and weeding out the potentially unqualified has been replaced by continuous smear, abdication of duty, and party-line votes. And yet, things could turn decidedly worse and it is very easy to imagine just exactly how that might happen.

Imagine that a Justice dies or resigns at some point in the near future, while there are still eight members. At that point, we would be looking at a 7 member court. This is where things get interesting, not because there is anything wrong with a 7 member court. (As an odd number, this is obviously better than the current number of 8 Justices.) The interesting part is we all know that Trump could run into serious trouble at any moment. In that case, it is possible that none of his nominees would be confirmed. Thus, the winner of the 2020 election would likely be appointing at least 2 but possibly (in light of the age composition of the existing Court) as many as 3 or 4 justices in a single 4-tear term. This would be a dangerous moment for American democracy for two reasons.

First, the stakes are not supposed to be so high for a single presidential election. Some elections will naturally have high stakes to be sure, but we don’t need or want rules which heighten the stakes unnecessarily through a haphazard process for replacing Justices. The risk in having such high stakes is the increased likelihood that segments of the losing side would either contest the result or become politically alienated. The danger that poses to our democracy should go without saying.

So my experience watching confirmations for 25 years has been to witness a process that has sunk from the ugly to the anti-constitutional. My body of thought about confirmation was baptized in the vulgarity of the 1991 Thomas hearings and died in 2016 at the hands of the Senate of the 114th Congress. The cause of death was the non-experience of witnessing the non-hearings and the non-votes on the Garland nomination. So things are terrible and could get worse. At this point, you are clearly asking if there is any solution to the mess. Funny you should be asking that. I do happen to have one in mind.

 

* * *

PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

GOVERNING THE REPLACEMENT OF JUSTICES TO THE SUPREME COURT 

  1. The number of Supreme Court Justices shall be nine (9).
  2. Following each presidential election, the longest tenured Supreme Court Justice (the Senior Justice) shall be replaced. Within 30 days of inauguration, the President shall nominate a new Justice (Nominee) to replace the Senior Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to confirm the Nominee. If the senate votes by 2/3 to reject the Nominee, then the Nominee is removed from the Court immediately. The president shall then nominate a new Nominee who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
  3. In the event of the death or retirement of Justice during* the President’s term, then the President shall choose an Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate a new Justice (Nominee) to replace the Interim Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to reject the Nominee. If the senate votes by 2/3 to reject the nominee, then the president shall nominate a new Justice (Nominee) who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
  4. In the event of a second death or retirement of Justice during the President’s term, then the President shall choose a Second Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate two (2) new Justices (Nominees) to replace the Interim Justice.
  5. In the event of additional deaths and/or retirements, then the President shall appoint additional Interim Justices and each new President shall appoint two (2) new Justices until all interim justices have been replaced. Once all Interim Justices have been replaced, then following the next Inauguration the new President shall replace the Senior Justice.

*  *  *

That is the my proposal, in toto. These five (5) paragraphs can fix the dysfunctional mess masquerading as America’s SCOTUS confirmation process. The precise wording may change a bit, but the basic mechanics are unassailable. Of course, I invite people to assail it with vigor. In advance, let me briefly unpack and describe the major features of the Amendment:

First, a President appoints one and only one permanent Supreme Court Justice per term. The nation will be spared from the hit-or-miss randomness of some Presidents getting no nominations in a term while others could get two or more picks in a single term. Moreover, the President’s SCOTUS powers should not rise and fall as a salient issue in Presidential elections based on the likelihood of an opportunity to nominate, especially since these opportunities often turn on unforeseeable occurrences. Under the new system, every POTUS will get a single nomination during their Term. Therefore, the issue of SCOTUS will always be salient to a campaign, as it should be, without reaching today’s fever-pitch. Equally important is that on the rare occasion when a President will be allowed to nominate two Justices in a term, the electorate knows this in advance of the election. This will lead to an increase in the public’s understanding of how and when a Presidential election could influence judicial outcomes. For example, one could take all 5-4 decisions in which the senior judge (who will be retiring) is in the majority, and you have the complete set of cases that could potentially be reversed after a new president is elected.

Some people believe that ending lifetime appointments of SCOTUS Justices would be a drastic step. Hamilton, in Federalist 78, argues that giving judges tenure is the best way to protect the independence of the judiciary. He is probably correct in that. On the other hand, the decreased capacities that come with age make increased turnover on SCOTUS an obvious benefit, provided the Court is still protected from interference from the other branches. This proposal does not really engage that debate. Under the proposed amendment, Justices will serve for a really, really long time. Each Justice will start as the junior member and can serve until they have served as the senior members for 4 years (or even longer in the event of an early retirement). So in theory, you would be replacing the Senior Justice each term which means an entirely new court every 36 years. A nominee who is 49 years old can serve on the Court, at least until he is 85, and perhaps longer. Merrick Garland could serve at least until the age of 99. Keep in mind only two Justices in our entire history have served that long. So the amendment doesn’t in any meaningful way curtail the important tradition of giving tenure to Justices. Moreover, when thinking about lifetime appointments, we ought to imagine a time in the future when people may live as long as 200 years. Do we want a President to pick a justice who will serve for 160 years?  Lifetime appointments are already anachronistic and will only become more so over time. There is thus no early retirement and no meaningful limit on lifetime tenure. It simply creates an organized and more balanced system for replacing Justices.

Reduced Powers of the Senate.  To be sure, the Senate will have slightly less power over SCOTUS, but there are reasons not to lament this. First, the Senate has increasingly misused and abused the weighty confirmation power originally conferred to it under the Constitution. Second, the reduction in power is minimal. Any unqualified and disqualified candidate would surely find 2/3 in opposition. Third, at the end of any confirmation process, there is a guarantee of another Nominee in less than four years. So for a given political party that opposes the  Nominee, the focus is shifted from obstructing a Nominee to winning the next election– as it rightly should be. This restores us to the prior balance where the popular will is supposed to dictate the composition, over time and indirectly, through a presidential election every four years. Final note is that the Senate is 100 Members and only requires 67 to defeat a nominee. To the extent the Senate remains united across Party line, the Senate still has total control over a nominee’s fate. To the extent that the Senate allows itself to be fractured across partisan lines, it will cede some power to the Presidency. Again, none of this seems lamentable.

Resignation & Death One interesting feature of the new system is that a Justice who wants to retire strategically simply cannot do so. A retiring Justice will simply give the next undetermined president the opportunity to replace them. Moreover, the entire motivation for strategic retirement ends since the ideological composition of the Court will be henceforth determined by elections. In other words, the amendment assures that each time a conservative president is elected, there will (likely) be a conservative justice nominated and that each time a liberal president is elected, there will (likely) be a liberal justice nominated. Eliminating strategic retirements is a minor benefit but part of a major package of benefits, so to speak. Additionally, one imagines that future Presidents will continue the trend of appointing younger Justices who will serve on the Court for many years. A Justice confirmed to the Court in their 40’s could spend the full 36 years on the Court. Of course, many Justices will not be willing or able to serve that long while a few will serve longer. On balance, it is very likely that Interim Justices will be appointed from time to time. That will create some “two-judge” presidential elections. Of course, every time an Interim Justice is appointed it does not mean the next election will always be “two-judge” since the senior justice who was scheduled to be replaced but “bumped ” by a retiring or dying judge, will simply hang on an extra four years such that a two judge election will not happen. The salient feature, however, is that the public knows in advance whenever the next President will be allowed to nominate two Justices.

Enacting a Constitutional amendment is a task rendered exceedingly difficult by the framers. However, the likelihood of successfully passing an Amendment has clearly increased as information and political action have themselves become increasingly coordinated via digital networks. There is no doubt that political forces can mobilize and coordinate better now than at any time in U.S. history. One hopes this will lead to improved governmental institutions that better serve Americans. Along those lines, the Amendment described above eliminates the current SCOTUS confirmation process, which produces some of the most abhorrent scenes in American political theatre, and replaces it with a vastly better system which continues to respect separation of powers and the value of an independent judiciary.

 

 

 

 

 

James Comey Lies About FBI Marijuana Policy at Boston Cyber-Conference

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By Benjamin M. Adams, March 10, 2017   @BenAdamsO_O

In all fairness, perhaps FBI director James Comey thinks it takes three years to drive to a job interview. He is a D.C. denizen, after all. Or maybe Comey doesn’t know the FBI’s hiring guidelines. Those other explanations failing, one can only conclude that James Comey is not only a liar but also that he is unprepared to lead the agency in the new cyber-threat era that has dawned.

Quick backgrounder: The U.S government cannot protect its data at any level, even its most top-secret. WikiLeaks’ Vault 7 continues to yield embarrassing revelations which confirm this painful truth– that the U.S. government is woefully behind the curve on cyber and data security. The CIA cyber ops team in Germany could not even protect its own data, data that was purposely disconnected from any internet connection. Let that sink in.

Speaking in Boston on Wednesday, Comey acknowledged the need to attract young people to work for the FBI in order to effectively combat the cyber threats facing the United States. Characterizing the FBI’s past troubles, Comey tells a pithy story about talking to his daughter about trying to recruit young, talented people to the FBI. His daughter asks him why a young person would want to work for “The Man.” Comey then dad-splains to his daughter that she is “right but wrong” and that bright young people would want to work for the FBI if only they understood how hip and cool the place is these days. You can listen to the entire talk here. The dad-splaining part starts at 14:10.

It’s awfully cute. You almost find yourself starting to like old James Comey, even though one thinks he may have… oh never mind that treason stuff for now. Let’s pull together, like Jim says, to defeat the evil layer-cake of cyber threats. (That is his analogy, not mine). Comey is here to deliver a message about young people working for the FBI. In a delivery that invokes the evil spawn of corporate jargon and political doublespeak — Director Jim tells the youth that everything is totes chill at the FBI:

“And part of this avoiding this ‘You’re the man’ trap, is to be a little cooler than I may appear. To offer these talented young people an enterprise that is more agile than they might expect. We’re not going to beanbag chairs and granola and white boards, but we’re trying to get close to that. To make sure that these great young people understand that although we are enormous, there are opportunities for innovation and agility inside the FBI that they may not realize.” 

One senses that perhaps Comey is trying to simply say that it’s OK to smoke weed and work for the FBI on its cyber team. And even though that is what clearly ought to be said, Comey lacks the ability to say so. He prefers to work in innuendo, but I will let that pass. Actually, I won’t. Comey is nothing if not slick. He clearly hates the Clintons because he is one of the Clintons, if not literally (just kidding, Bill), then in spirit. Like the Clintons, Comey wants to be all things to all people and ends up being nothing. People know slickness when they see it. It’s why that moniker stuck with Bill and it suits Comey just fine as well. Nonetheless, slickness is sometimes merely a stylistic deficiency.

The truth is that we do need the best and the brightest to serve this County. When it comes to Cyber, lots of the folks will be computer whiz-kids. They are also gamers and they mostly smoke weed. Comey must realize this, right? So I say let’s give Slick Grandpa Comey a chance to prove he is cool. He doesn’t get off to a good start:

To be a cyber-agent of the FBI, you need several buckets of attributes. We need integrity– non-negotiable. We need physicality. If you’re going to carry a weapon on behalf of the Unites states of America, you’d better be able to run fight and shoot, even if your specialty mostly keeps you by the keyboard. 

Wait, what? That’s just monumentally stupid if true. You won’t let a computer super-genius into the FBI because he’s a wimp? Or because she uses a wheelchair? Or because perhaps she doesn’t want to fight and shoot? That seems counter-intuitive, but we are going to forget that also because I know this dude is talking about weed somewhere somehow in this damn talk. You could feel it with the talk about granola and beanbags. Yes, Cool Grandpa needs you to shoot and run and fight but he said he was flexible so there’s only one thing left that could mean.

Finally, he goes there. I knew he would. It only makes sense that if I am a young super-genius who eschews a life working at Apple or Google in favor of a career at the FBI, I don’t need to give up weed on top of money, benefits, sleep, and safety.

Comey:

We will often find people who have intelligence and integrity but can’t do a pushup. Or we might find people who can do pushups and are great behind a computer but they want to smoke weed on the way to the interview. 

Aside from Grandpa’s odd fixation with a cyber force that can shoot and do push-ups, the bit about not blazing on the way to the interview seems inherently reasonable. If that’s the standard, Snoop and Willie Nelson could probably work for the FBI. Could the FBI policy on dope really be this dope? In all honesty, let’s hope not. Rather, let’s assume that Grandpa James is speaking hyperbolically when he cautions that young people who want to work for the FBI merely need to refrain from toking on the way to the interview. He is probably saying, you know, pass the stupid drug test. I don’t happen to think the FBI should test its cyber-agents for marijuana as long as it allows them to drink alcohol. Having said that, I also happen to think if you can’t quit weed for 30 days in order to advance your career, then you certainly don’t have the discipline to work for the FBI. You probably need help, to be honest. Obviously, this doesn’t include folks with a serious condition who use marijuana as medicine.

So, wow. There it was. Slick Grandpa Comey making sense and being cool and doing a good job reaching out to young people. Oh yeah one other thing. James is totally and completely full of spit.

Here is the FBI website as of today:

1Eligibility FBIJOBS

Yes, that’s right. No marijuana use for three (3) years even if it is legal in home state and even in the case of medical marijuana prescribed by a physician under a state regulated system. Its about as draconian as possible. I’m disgusted to realize this was the policy under the Obama administration, but that only reminds me of my larger disgust at Obama for his total weakness and stupidity on the subject of weed including his refusal to reschedule weed, raids on dispensaries, and hostile banking and tax rules. Unlike the GOP, however, my problems with Obama no longer strike me as particularly relevant at this point for reasons too obvious to state. James Comey on the other hand has basically ruined the Country but he is also the acting FBI director and as such he has an obligation to be honest. One would think he would be particularly careful with his words, in light of the (ahem) problems which have occurred on his watch. Apparently not. He is a liar beyond repair, so I need to help him out here.

Jim, the FBI does not exclude people for smoking weed on the way to the job interview. So you have two choices. Choice number one is that you can keep lying to our faces until every last person in America despises you. Choice number two is for  you to sit down and have an honest conversation with your daughter about marijuana.

 

 

Monica Crowley’s Dissertation Facing a Second, Desperate Defense at Columbia

Cont. Ed. Class & Campus Photos

By Benjamin M. Adams,  March 9, 2017      Follow on Twitter:  @BenAdamsO_O

Some of you may know that I have an M.Phil degree in Political Science from Columbia University. The M.Phil is a fancy name for finishing all parts of your PhD except for the dissertation. Some schools don’t offer a fancy degree for achieving the dubious rank that I attained– they simply call it ABD, as in All But Doctorate. I am ABD for the same reason lots of other people are ABD. That is, I did not complete and defend an original work of independent research scholarship– a doctoral dissertation– required to achieve a PhD. My reasons for not completing the dissertation were varied and weird, especially since my well-renowned dissertation adviser was arrested just as I was getting started. This story is not about me, but now you may see why I’ve taken a keen interest in the Monica Crowley plagiarism story as detailed by CNN’s Andrew Kaczynski here and here.

My primary goal was to find out if Columbia was doing anything about the alleged misconduct. Yes, I am saying alleged but only because there has been no final legal or academic determination. The CNN report clearly shows that Ms. Crowley repeatedly lifted the thoughts and words of others without attribution, and as her own. It is difficult to conclude that major plagiarism was not committed by Ms. Crowley.  When I reached Columbia University for comment, I was directed to a junior person in the press relations office. The following exchange ensued:

Hi Monique. It was lovely speaking with you. I happen to be a Columbia alum. Here are my questions–

  1. Does the University have a specific policy with respect to approved PhD dissertations that are later found to be plagiarized?
  1. Is the University aware of plagiarism claims related to PhD earned by Monica Crowley?
  2. Is the University taking steps to address those claims of plagiarism related to Monica Crowley?
  1. If so, what are those steps?

The staffer seemed a bit caught off guard and explained that she needed to speak with a superior. Eventually, I received the following email from Robert Hornsby:

Dear Mr. Adams: We have no comment on Monica Crowley’s dissertation, which was submitted in 2000 and is publicly available. The University’s process for addressing concerns raised about University research preserves the confidentiality of any review, and even the fact of a review’s existence is confidential while it is underway. Columbia is committed to upholding the very highest standards of integrity and credibility in academic research.

This did not satisfy me. In fact, it struck me as mealy-mouthed doublespeak. So I followed up. Twenty years as an attorney taught me a little something about the next question…

thanks very much. i appreciate your prompt response…one of the questions was — Is the University aware of plagiarism claims related to the PhD earned by Monica Crowley? last question, if there was an inquiry by the University, would the University make a statement at its conclusion if action/no action is taken?  

This is when Columbia tried to get snippy with me:

Ben: We have no additional comment or information to share.

Ugh. He said “share.” I wanted to say “Dude, this is not kindergarten show-and-tell. You are a University at the center of an academic shit-storm.” I held my tongue and simply shot back:

Thank you, but that response seems entirely disingenuous. Here are links… Columbia is really not willing to confirm it knows what is going on in the world? That seems odd and inadequate. 

No response. I waited a few weeks and considered dropping the inquiry but today Monica Crowley decided to go on TV and falsely claim that Andrew’s excellent reporting had been debunked. So that was enough for me to send another inquiry:

Robert I never heard back from you. Ms. Crowley is now on television falsely claiming that the plagiarism story was debunked. Does Columbia University have any comment on those false statements? Finally can you confirm or not that Columbia University is aware of the controversy? Simple questions. Please provide a response. Thanks very much for your time.

Today, I finally got a response:

Mr. Adams: Yes, we are aware of this issue, but as I’ve said repeatedly, we do not comment about investigations, not even to confirm or deny that any particular investigation is taking place (or not).

I asked one final question, would Columbia announce the results of an inquiry, if one is held. Yes, this definitely sounds like Star Chamber. No comment from Columbia yet. For those of you interested, the process for an investigation of plagiarism is pretty substantial and is detailed here. Apparently there is a Standing Committee on the Conduct of Research. Unresolved allegations of plagiarism are decided there. Presumably, this is where Ms. Cowley’s fate will be decided, although decisions of the Committee can be appealed to the University Provost.

BREAKING/UPDATE – After multiple discussions with Columbia officials, I cannot yet confirm that an inquiry is pending. I have that on rumor (and from a very good source) but I don’t peddle (much) in rumors. Independently, I can confirm that an additional academic Complaint — an “Allegation” per University guidelines — is likely to be filed imminently. It seems Ms. Crowley’s PhD will require one more defense.

For further updates, follow me on Twitter. @BenAdamsO_O

 

My Talk With Omar Jadwat of the ACLU Immediately After Stunning Win

By Benjamin M. Adams January 29, 2017       @BenAdamsO_O

I went to Cadman Plaza last night hoping that my New York SecurePass (Attorney ID) would get me into the Federal Courthouse so I could witness the historic hearing taking place inside. My yellow pass gets me into legal places where others often cannot follow, so…HAHAHAHAHAHAHAHA…It didn’t. No chance. There were people there, people. Lots of ’em. And they were doing some work, protest-chanting and whatnot. It got me fired up a bit to be honest because these people in front of the Courthouse, they were doing some real work. I’m not getting all prudish about having fun with the mob. It’s Brooklyn. It’s cold. I’m not getting in the building anyway. I think Ari Melber is out here. I can sense his presence. I wonder if any press got into the Courtroom and I wonder dumbly why the universe hasn’t put me inside for the hearing.

More of that later. The big news is that I got a chance to ask some questions of the ACLU’s lead attorney, Omar Jadwat, immediately after the stunning victory putting parts of the Executive Order on hold. Well, it wasn’t exactly immediate. First, I waited patiently for MSNBC’s Ari Melber to ask his questions. Then I got impatient with Ari’s questions, and I interrupted (twice) to ask if the ruling applies only to the Eastern District of New York or nationwide. Omar confirmed the stay is nationwide. Honestly, I didn’t understand any of Ari’s questions but I just never have anything nice to say about Ari, so I just shouldn’t say anything. He asked Omar if this is a partial victory or a complete one. Uh, well its just a temporary stay so…oh well, I’m still being nice but please, Ari. I have questions to ask this man. You have a show to do tomorrow and I don’t. Please don’t forget that, Ari. Also, you should have been in the Courtroom.

Ok, so yes I know you want to watch Ari do his thing. Here you go with the raw cut, complete with my rude interruptions. This is pure Omar. Enjoy it. Soak. It. In.

 

Finally, Ari took off in a stretch limo with some beautiful woman (that’s a joke Mrs. Melber). The un-joked truth is that some of us stayed around, and we got to ask Omar some interesting questions. About law even!

I asked which of the claims raised in the ACLU brief — procedural due process, statutory, and equal protection — he felt was the strongest. I asked him if green card holders would get a hearing. I asked him if he felt the executive order was fatally unconstitutional or if it could be cured by providing additional due process. (Sorry about the bad camera work folks, my cameraman got knocked down in the scrum.)

 

 

Omar needed to get some sleep and I allowed it. It was Omar out. It turns out, however, that Omar didn’t go to sleep. He doesn’t need sleep, apparently. It’s one of his superpowers. He had just saved the world. He didn’t need sleep. He wanted the after-party and for Omar, that meant engaging in some ridiculously epic trolling of Rudy Giuliani, who just seems to go insaner and insaner each time that he goes insane. This thing actually seems to have happened–

I mean this is just too batshit crazy to be believed but we need to believe it for now. I certainly do. Do you know who else does?

This was an uber, meta subtweet of the highest order. It was so clear what Omar was saying, “Mr. President, this is how you troll people on Twitter when you’re sleep deprived. I just beat you in Federal Court, Mr. President and now I am beating you at the sleep deprived sub-tweet game.”

I tweeted to Omar that he should for reals subpoena Rudy but does Omar really need my help? I laughed at my own silly hubris. I went back to the spot that Omar had walked on to briefly worship. Then it was back to work people. Work.

No Ban, No Wall, Liberty for One and All!

 

 

Also, Can you show me what democracy looks like? This is what democracy looks like!

 

 

Lastly, I sweet tune rippled through the crowd, reminding us all who exactly makes up the good old USA. You. And. Me.

 

Back to work people. Back. To. Work.

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