America’s SCOTUS Debacle: A Proposal to End Lifetime Tenure

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By Benjamin M. Adams on June 30, 2018 @BenAdamsO_O         Photo by Jamelle Bouie

This proposed amendment is taken from a longer piece I wrote last year.

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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 (hereinafter 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.

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Here are 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 whereby some Presidents get no nominations in a term while others get two or more picks in a single term. Moreover, the President’s SCOTUS appointment 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 is increasingly likely to influence judicial outcomes.

In Federalist 78, Hamilton argues that lifetime tenure is the best way to protect the independence of the judiciary. He may be correct, but lifetime tenure is certainly not the only way to accomplish his desired goal. This proposal increases turnover without subjecting the Court to political interference. Under the proposed amendment, Justices could serve for an extremely long time. Each Justice would start as the junior member and could serve until they had served as the senior member 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 could serve on the Court until age 85, and perhaps longer.

Keep in mind that only two Justices in our entire history have served that long. So the amendment does not 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 this problem will only get worse as people live longer. The proposed amendment creates an organized and more balanced system for replacing Justices.

Reduced Powers of the Senate.  To be sure, the Senate will have less power over who sits on SCOTUS, but it seems misplaced to lament this possibility. 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/or 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 a given Nominee, the focus is shifted from obstructing that 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 of SCOTUS, over time and indirectly, through a presidential election every four years. One should remember that the Senate is 100 Members and the proposed amendment only requires 67 senate votes to defeat a nominee. To the extent the Senate remains united across party lines, it retains total control over a nominee’s fate. To the extent that the Senate allows itself to be fractured across partisan lines, it will cede its power to the Executive branch. Again, none of this seems calamitous.

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 rather than happenstance or parliamentary machinations in the Senate. Instead, the proposed amendment is designed to ensure 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 by Justices is just one part of a major package of benefits. 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 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.

NYC: Too Rich For its Own Good.

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By Benjamin M. Adams on June 14, 2018     @BenAdamsO_O

A few years back, I represented the purchaser of a newly constructed condominium apartment in Chelsea. It was a generous two-bedroom and priced accordingly, at five million dollars. My client took a mortgage of $3.5 million. Most people realize that there are “closing costs” associated with real estate sales. The amount of closing costs varies widely, not merely from state to state, but within a state. So when I sat down with my client at the closing table to complete his $5 million purchase, what do you think he paid in closing costs? Go ahead and venture a guess. You’ll probably be wrong, but that’s part of the fun. Remember that closing costs include government charges like transfer taxes and recording fees. They also include non-government costs such as title insurance and appraisal fees. Don’t be bashful. Guess what he paid in total.

Before I tell you what he paid, I will mention one of the more curious aspects of buying a new construction condo in NYC. That is, the developer/seller requires each buyer to sign a contract agreeing to pay the city and state transfer taxes — which happen to be taxes that the law levies against sellers. So the buyer of a new construction condo has the great privilege of paying their own closing costs and nearly all of the seller’s closing costs as well. For this transaction, the “seller” transfer taxes paid by my client were (1) the New York State Transfer Tax in the amount of $20,366.00 and (2) the New York City Transfer Tax in the amount of $72,550.31. So that’s a tidy $92,916.31 to start off with, for those of you keeping score at home. Was your guess higher than that? Of course, we haven’t yet reached a final tally.

Once upon a time, long ago in the 1980’s, only sellers paid the New York State Transfer Tax. In 1989, then-Governor Mario Cuomo helped pass the “Mansion Tax,” which required purchasers of real estate to start paying transfer taxes whenever they had the audacity to purchase real estate valued at more than $1 million. Political opponents briefly succeeded at branding it the “Cuomo Tax,” but the name really didn’t stick. Now people continue to unironically call it the mansion tax. Thus, it is not infrequent for a buyer of New York real estate to look up from their closing documents and say something to the following effect: “So … my apartment … is … a mansion?”  Polite laughter generally ensues.

So in any event my client thus paid an additional one percent, or $50,000.00, to the State of New York for his 2-bedroom mansion. Total so far: $142,916.31. How is your guess holding up? We are still not quite at the end, though.

Lest you think that New York is solely progressive in its taxation policies, please meet the New York Mortgage Recording Tax. This tax doesn’t apply to you if you happen to be rich enough to buy a piece of real estate without a mortgage. But if you are a normal person who needs to take a mortgage, then you pay the tax. It is the height of regressivity — a tax with a built-in carve out for the rich. Moreover, these tax rates do not play around. My client needed a mortgage in order to complete the purchase, and he paid a tax on that mortgage in the amount of $67,345. This brought the government haul to $210,261.31.

The Mortgage Recording Tax also levies a 25 basis point tax against the bank. So the lender paid $8,750.00 as its share of mortgage tax. That brought the government’s take up to $219,011.31. If you think that amount of revenue might satisfy the City, County and State of New York, you are wrong still. That is because several years ago, New York decided that a sales tax should be applied to certain closing services, even though they had never been taxed before. Due to that change in policy, my client paid a sales tax on some of his closing costs. Yes indeed. The state now taxes some of the closing costs. So that added another $43.93 to his bill. That wasn’t much salt for his wounds, but sometimes it’s just the thought that counts.

Is there more, you ask?

Why, yes. There is. In addition to the deed and mortgage recording taxes, my client also paid recording fees. In other words, one must pay the county clerk a fee to record the documents which in turn triggers the tax. His total recording fees were $1,020.

The final government take was $220,075.24.

For those interested, my client also paid roughly $25,000 in title insurance premiums, $20,000 in bank fees, $4,500 for the Seller’s legal fees (yes he paid those) plus an undisclosed amount for my fee. These weren’t part of the government take but it pushed his total closing costs to nearly $270,000.00.

Was your guess higher than that?  Either way, what’s the point of this?

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One conclusion is that massive government revenues encourage profligate government spending. How else could a city afford to pay $400/hour for manual labor? As the New York Times reported last year with respect to the costs for subway construction,

“The labor deals negotiated between the unions and construction companies also ensure that workers are well paid. The agreement for Local 147, the union for the famed ‘sandhogs’ who dig the tunnels, includes a pay rate for most members of $111 per hour in salary and benefits. The pay doubles for overtime or Sunday work, which is common in transit construction. Weekend overtime pays quadruple — more than $400 per hour.”

The Times also observed that a similar system is being built in Paris at one-sixth the cost that New York is paying.  In another investigative work, the Times observed that the New York subway system employed nearly 2,500 managers at an average cost of $240,000 per year and that it did so at a time when those managers were systematically under-funding basic maintenance and safety projects. Empirical observation reveals that individuals with massive incomes are likely to spend money in dubious ways. This is not meant to embarrass Nicholas Cage or Johnny Depp, but simply to ask the question of whether it is reasonable to expect a government to be more fiscally responsible than the individual citizens it aggregates.

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I am perfectly happy to live in a country where the state confiscates increasingly obscene amounts of wealth as one accumulates obscene amounts of wealth. My contentment is of course conditioned upon the state using its resources in a somewhat efficient manner in the pursuit of laudable goals like healthcare, education and national defense. This is my Plan A for American political development, even though it might lower my own material standard of living. I am less sanguine, but certainly contented, to live under a “starved beast” government that retires its debt, reduces taxation, limits its regulatory reach, and defers to state authority. That would be my Plan B for developing a workable American social compact. Unfortunately it seems seems that neither option is on the menu.

New York depicts the liberal state as a demonstrable failure. My client’s $220,000.00 tax payment would seem to be a sufficient tribute, especially when one considers that he paid these taxes with the net of his income that had already been taxed heavily by both city and state. One imagines a state, flush with these types of revenues, that is able to create an impressive set of social programs. Instead, New York soaks the rich — in precisely the way that a progressive would hope — and then it pours that money down the drain of politically-connected unions, contractors, and criminal enterprise. New York robs from the general rich and gives to the connected rich. A progressive promised land this is not.

One begins to consider Plan B, but alas: The modern GOP and its absurdist economics fail even more spectacularly than the tax-and-waste policies of New York. The failure of the GOP platform, idealogically speaking, is *not* found in the GOP desire to cut taxes for the rich while slashing food stamp benefits and Medicare. That is the progressive’s quarrel; It is not a conservative complaint.  The problem for the GOP, as a matter of dogma, is that the party wants to cut taxes for the super rich by adding trillions to the debt and moreover that the GOP is more than happy to finance these tax cuts for the rich by running trillion-dollar deficits, even during times of sustained economic growth. A party of fiscal responsibility this is is not.

One begins to ponder what Plan C might look like.

Fast Forward 3 Years

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By Benjamin M. Adams on December 5, 2017    @BenAdamsO_O

It’s the middle of 2020 and Trump is still President of the United States, although it’s hard to understand how or why this happened.

Robert Muller’s investigation is all over except for the crying. Mueller rolled up everyone in his path. Flynn was a devastating witness against Trump and everyone in Trump’s inner circle. In the spring of 2018, Manafort followed Flynn’s lead and cut a deal with Mueller in exchange for a reduced sentence. Manafort and Flynn both testified against Kushner. In March of 2018, Jared Kushner was indicted, perp-walked, and charged with a laundry list of crimes that included lying to the FBI, money laundering, violations of FARA, and the Logan Act. Over the next 10 months, while Kushner spent his days and nights staring at 25 years in prison, nearly every other character in the script flipped on Trump — McFarland, McGahn, and Cohen. As each flipped, Trump sent angry tweets calling them haters, losers, and (mais oui) purveyors of #FakeNews. The six months leading up to the 2018 midterm election were a cavalcade of stories, speculation, and rumination about the corruption of Trump and his associates.

The 2018 midterms proved as bad for the GOP as even the direst of modeling had foretold. In November of 2018, the Democrats took the House with a 20+ seat margin. Republicans also got absolutely crushed in Senate races, barely salvaging wins in Utah and Alabama and nowhere else. Due to the nature of Senate turnover, where one-third of the chamber seeks re-election every 2 years, the drubbing that the GOP took still left the Senate Republicans holding 45 seats.

That’s when the fun started.

It was the first week of December, 2018. Paul Ryan, sensing the stench of history descending upon him, used the lame duck session of the 115th Congress to ram though a hastily written, single-count Article of Impeachment against Trump.  He thought he was dumping the whole thing in Chuck Schumer’s lap, but McConnell made other plans. He scheduled a trial in the Senate for the last week in December, with a one-day recess for Christmas day. Ryan’s impeachment bill was a disaster. It listed only one count of Obstruction of Justice, even though Mueller’s preliminary findings had indicated at least six impeachable offenses. McConnell was trying to make lemonade.

It took a few days, but it eventually dawned on Trump that he had two weeks to round up 34 Senate votes or else his presidency was over. Even though the midterm elections had just concluded, Trump then went into full-scale campaign mode, holding rallies in multiple states every day for two weeks. He visited the state of any Senator that was considered “in play” on impeachment. He also visited deep red states, energizing himself and his base in the presence of adoring crowds.

In the second week of December, 2018, with the nation already frenzied in anticipation of the approaching lame-duck impeachment trial, Justice Bryer announced without warning that he was leaving the Supreme Court effective immediately. The Supreme Court now consisted of 8 members. Before Bryer left, the Court was comprised of 4 conservatives, 4 liberals, and Anthony Kennedy. Now there were 4 conservatives, 3 liberals, and Anthony Kennedy. Most of the media focused on who would fill the vacant seat. Court watchers understood that the balance of power on the Supreme Court had already shifted.

Trump wasted no time exploiting the opening. The following day, by early morning tweet, he nominated Senator Mike Lee to fill the vacant Supreme Court seat. As the battle lines were being drawn over Lee’s coming nomination fight, the SCOTUS rumor mill was busy with rumblings about a pending case being re-conferenced and re-written following Bryer’s departure.

Those rumors proved prescient. At the end of the third week of December 2018, SCOTUS announced its decision in the religion case — in which one of the arguments turned on substantive due process grounds.  The 5-3 opinion decided the case on First Amendment grounds, but it contained an explosive footnote stating that 4 members of the 8-member Court had voted for an opinion that would lead to the overturning of both Roe and Obergefell. Just like it had done in Bush v. Gore, the Supreme Court transformed right before our eyes into a purely political body — sending a clear and unambiguous message: Confirm Mike Lee and we will roll back abortion rights and protected status for LGBT.

The SCOTUS decision immediately galvanized support in Trump’s direction. Trump’s rallies in the red states grew bigger and more intense. The anti-Trump protestors came out in force as well. Violence broke out at several rallies. Trump then began to retweet racially charged videos (often fake) which featured scenes of black or brown skinned people brawling with cops and Caucasians. For two straight weeks, CNN aired literally every second of the Trump anti-impeachment rallies. For the same two weeks, CNN featured a countdown clock, marking the number of minutes until the impeachment trial was to begin. Trump continued rallying and tweeting about the empty SCOTUS seat while relentlessly stoking racial and ethnic tensions. In no time at all, the base was drunk with thoughts of vindication and ascendence.

The Senate impeachment trial started on time in the last week of December of 2018. It only lasted 4 days. Each manager supporting Trump used his time to talk about partial-birth abortion and men who wanted to use women’s bathrooms. Each speaker praised Mike Lee and referred to him as the next Justice of the Supreme Court. Throughout the process, Mitch McConnell continued to tell reporters that he had the votes to confirm Mike Lee. McConnell still had 52 in his caucus, thanks to the razor-thin victory that had propelled Roy Moore to the Senate.  McConnell was also emphatic about another point — that Lee’s name would be immediately withdrawn from consideration if Trump was convicted by the Senate.

On December 28, 2018, the Senate voted on the impeachment of Donald J. Trump. When the voting was done, 17 Republicans voted to convict Trump and remove him from office. Mike Lee, Roy Moore and Mitch McConnell all voted to acquit. The final tally was 65-35, and that is the story of how McConnell helped Trump survive the lame-duck impeachment.

Just minutes after Trump’s acquittal by the Senate, McConnell announced that hearings for Mike Lee’s nomination were to take place during the second week of January. Those confirmation hearings did take place and they were an ugly, epic mess. Protesters infiltrated the hearings, which ultimately had to be closed to the public. At one point, a blue state Senator accused a red state Senator of committing treason. In turn, he was accused of murdering babies. The Lee nomination escaped Committee on a party-line vote. McConnell scheduled a floor vote for the following week, on the penultimate day of the 115th Congress.

The vote on Lee’s nomination to the Supreme Court was wild beyond belief. In the days leading up to the vote, it became clear that Collins and Murkowski were both leaning no. That left 50 votes against Lee, but with Pence ready to break any tie, the opposition still needed one more Republican vote in order to defeat Lee. Several Senators were open in their disdain for Trump and any of that group might have opposed Trump’s nominee just to screw Trump. The problem is that all of those Senators — Flake, McCain, Corker — had a close personal relationship with Mike Lee. Not one of them wanted to vote against Mike Lee. Grudgingly, the commentariat began to admit that the Lee nomination had been a masterstroke by Trump and that Lee was probably going to be a fifth conservative on the Supreme Court. Roe and Obergefell were Dead Precedents Walking.

The floor vote on Lee’s confirmation started at 3:00 P.M.. Never before had so many people tuned into C-Span. The first part of the vote happened fast and furious. In the blink of an eye, there were 48 votes against Lee but then no more. The entire progressive world was in a state of shock and dread as the yes votes climbed to 47. A few minutes later, Collins and Murkowski added no votes. The vote stood 50-47 and the left had about 8 minutes of euphoria. The high was short-lived and followed by a bad crash — the sight of Flake and Corker walking onto the Senate Floor together, giving Mike Lee a big slap on the back, and then holding their thumbs up together and voting yes. It was now 50 no votes and 49 yes votes when McCain entered the chamber. Twitter exploded as McCain ambled over to Mike Lee, put his arms around Lee, and embraced him. One could literally feel the entire progressive world coming to pieces. McCain then let go of Lee, turned to the Senate bean-counter, and jutted his arm out — revealing to the world a thumb pointing down.

That is the wild story of how the Lee nomination was defeated, but it certainly doesn’t explain why. That question was answered just thirty minutes after his vote, when McCain faced the cameras. He waited until the room was entirely quiet before beginning his remarks.

“I’ve been asked to explain my vote,” he says. “I’ve spent the last two (2) years reading multiple reliable reports about President Trump and his team cooperating with Russia at the expense of American policy, American values and American ideals. The list of blatantly anti-American actions taken by Donald Trump — starting with his illegal collusion with Russia during the campaign and continuing not only into the transition but even into his presidency — is nothing short of astounding. Among the many things we have seen reported, President Trump refused to implement the sanctions against Russia that were duly enacted by this Congress. All of this leads me to believe that Mr. Trump was somehow ensnared in a Russian compromise plot and ultimately he was captured by it.” McCain then paused before concluding his statement: “I like people who weren’t captured.”

The lame duck session ended the next day with McConnell giving a long and tearful speech about loyalty and honor and how the Democrats do everything out of partisanship. The following week in D.C. was a normal one: Adam Schiff was elected Speaker of the House, Trump nominated Jeanine Pirro to the Supreme Court via twitter, and Melania returned to New York where she filed for divorce. The real fireworks started a few weeks later.

By the middle of February, Trump’s daily tweets about #JusticeJeanine grew edgy and dark. He cast his struggles in apocalyptic, biblical terms and the right wing media ate it up. At the same time, two things were happening. First, several bills of impeachment were rapidly advancing through the House which was now controlled by the Democrats. Second, there were reports that Kushner was discussing a possible deal with Mueller. All of the House impeachment bills contained an obstruction of justice charge, which had also been included in Paul Ryan’s lame-duck impeachment bill. In early March of 2019, the House passed a Bill of Impeachment containing five counts against the president. Trump had been impeached for a second time in less than 90 days.

Trump then fired his entire legal team, except for Jay Sekulow. He brought David Boies on board with a reported seven million dollar payment made by the Trump 2016 Inaugural Committee. Boies and Sekulow immediately sued the U.S. Senate. They made a bunch of ridiculous arguments, but one of them was not absurd — that the Articles of Impeachment were invalid because they included a charge for which Trump had been acquitted. Essentially, they argued this was double-jeopardy for the POTUS. Since this last assertion was credible, SCOTUS granted cert and issued a temporary stay of the impeachment trial. Over the next several weeks, the eight (8) member Supreme Court heard arguments, deliberated and then delivered a split 4 to 4 opinion. The Court could neither bestow legitimacy on the impeachment proceedings nor could it declare them unconstitutional. Senate Democrats moved ahead with impeachment, but the Republicans took the position that they had won at SCOTUS. They announced a boycott of all impeachment proceedings.

Majority Leader Schumer announced that an impeachment trial would take place in June of 2019. Nobody understood the long delay. It appeared to many that Schumer was rattled by the boycott threat. Two days later, however, Kushner turned on Trump and cut a deal with the special prosecutor. Kushner’s signed statement was 75 pages long and  implicated Trump in a hideous web of lies, corruption, and crime. By then Kushner had moved back to Manhattan. His sentencing was set for June, the same week as Trump’s second impeachment Trial.

Everyone spent the next two weeks speculating about how Ivanka must be getting her own divorce papers ready against Jared, but something unexpected happened. Ivanka publicly resigned from the White House and returned to New York to be with her husband. A week later, Ivanka gave an interview sitting next to Jared in which she recounted years of abuse at the hands of her father. The stories were emotionally jarring. Over the next 72 hours, Ivanka Trump became a hero to the left. President Trump’s approval rating cratered to 25%.

At the end of May 2019, Trump withdrew his nomination of Jeanine Pirro. The following day, he nominated Merrick Garland to the Supreme Court. Insisting that an 8-member Supreme Court was a national emergency, Schumer them pushed the impeachment trial into September of 2019 so that the Garland confirmation hearings could take place first. The Garland hearings took place at the end of June and they were sedate and civil. There were no protesters. Garland was confirmed in July and moved into his SCOTUS chambers on the same day.

Several days later, Schumer delivered a speech on the Senate attacking Mike Pence for his role in the Russia cover-up and questioning if impeaching Trump makes sense in light of Pence’s guilt. He worried about the instability of impeaching both the President and the Vice-President. Citing the need to “regroup and re-assess,” Schumer then pushed off Trump’s impeachment trial for another 90 days, at which point Trump nominated 27 liberal judges to the Federal bench. The Senate confirmed every nominee almost immediately.

In January of 2020, Schumer made a statement that an impeachment trial might be “counterproductive” with an election “around the corner.” Following Schumer’s announcement, Trump nominated another 35 liberal judges to vacancies on the federal bench. The impeachment trial was once more kicked down the road, ostensibly to allow the Senate to work on the new nominations. By March of 2020, each of the 61 of 62 nominees had been confirmed and the impeachment trial had been postponed to May.

By the end of March, it was clear that Trump would not be the GOP nominee. He had tried to run for re-election but was so disorganized that he didn’t manage to get on the primary ballot in several states. Trump was outmaneuvered by Rubio, Bush and Kasich — the candidates opposing Trump held GOP debates without him. Trump held “counter-debates” which none of the networks covered, except for CNN. On the Democrat side, the ticket came together early. Kamala Harris decisively defeated Sherrod Brown for the nomination and then tabbed him as her running mate. The governors of their respective states, Jerry Brown and Richard Cordray, were poised to appoint replacements in the event of a Democratic victory.

By May, Trump was mathematically eliminated as a possible GOP nominee and he rejected the idea of running as a third party. Whispers in D.C. told about a “deal” between Schumer and Trump. Schumer had the votes to convict Trump and remove him from office, but Schumer agreed to let Trump complete his term provided that Trump not run for re-election and further provided that Trump would nominate any judge Schumer wanted. The deal was sealed when Congress passed a law, with veto-proof majorities, that prohibited the President from making a first strike with nuclear weapons.

It was all part of a very craven calculus, but the nation was exhausted and needed a break. By June of 2020 the world knew definitively that the Trump presidency would be over in six more months. Unfortunately, those six months played out like garbage time in the NBA. People who had thought Trump was the lowest form of life had no idea how much lower Trump was destined to go.

Those six months passed with Trump conducting twitter warfare against literally hundreds of people and groups — journalists, senators, governors, his wife, his former lawyers, the FBI, celebrities, and no less than 12 NFL owners. He angrily engaged several twitter parody accounts. At one point, Trump leveled a barrage of 16 tweets at a parody account that he thought was North Korea. Another time, the President of the United States retweeted an account that featured a dick pic for an avatar. (He later deleted it.) Even though his divorce wasn’t close to final, Trump mused about possible romantic interests. He even floated the idea of an Apprentice-style competition to pick the next First Lady. He sent out a midnight twitter poll asking the question, “Who is the Real First Lady?” The choices were Ivana, Ivanka, Melania, and You Don’t Need One.

Within a week of becoming a lame duck, the Russians dropped all of their Kompromat. They had no use for it anymore, so it was basically just the Russians having fun at Trump’s expense. There wasn’t much but there was definitely a video of Trump in a room with 2 girls peeing on a bed. The video was grainy and dark. One of the girls looked like she could have been 14 or 15. The whole thing was creepy AF, as they say. There was really no end to the madness of Lame Duck Trump. People became sort of numb to it and they did so in a way that kind of defied reason. So here I am at my computer, on the eve of the 2020 election, recounting for posterity these last three years. America will have a new president-elect tomorrow, but part of me stills pray that this is a sim and someone is about to hit the button that says “Reset to 2016.” If that happens, this post will seem like a big joke to anyone who reads it but that would be a small price to pay to erase my memories of these last three years.

 

 

 

 

 

 

 

Block The Vote! A Primer on Blockchain Voting.

 

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By Benjamin M. Adams on September 13, 2017     @BenAdamsO_O

When it comes to advancing the American democratic experiment, no issue is more pressing than the security and legitimacy of our elections. Government officials and independent cyber-security experts agree that foreign entities attempted to hack the election systems of multiple states in 2016. The extent and success of these efforts is still unclear. One thing is clear, however, according to our Federal law enforcement and national security communities: Cyber-attacks on future U.S. elections are certain to occur.

On the left, concerns continue to linger that these attempted hacks may have been successful and that the election of Donald Trump was the result of altered vote tallies. On the right, the Trump Administration has formed a Commission that is devoting substantial governmental resources for the ostensible purpose of preventing voter fraud. There seems to be no political center on the issue of voting and electoral reform.

The right believes that concerns about hacking are the sour grapes of sore losers who would rather embrace a conspiracy theory than face the fact that they nominated an unpopular candidate who ran a poor campaign. The same people on the right point out that there is no evidence that vote tallies were changed via hacking and view the allegation of a “stolen election” as nothing more than left-wing conspiracy nonsense. They point out that the electoral results were largely consistent with the best pre-election polls.

The left thinks that concerns about voter fraud as an attempt to disenfranchise democratic-leaning voters. The commission chairman, Kris Kobach, continues to undermine the integrity of the commission by spreading palpably false information. First, Kobach legitimized Trump’s outlandish assertion that 3-5 million fraudulent votes may have been cast in the 2016 election. More recently, Kobach employed blatantly illogical reasoning to suggest that widespread fraud occurred in the New Hampshire vote.

In fact, there is no evidence that voter fraud is a significant problem. Most of the evidence points to the contrary conclusion. Of course, some voter fraud does exist, and the right presents a compilation of these anecdotal instances to make the case that voter fraud is a widespread problem when in fact it is not. So while voter fraud on it’s own does not threaten the accuracy of our voting, concerns about voter fraud do weaken the perception of legitimacy surrounding our elections. Moreover, it is beyond dispute that voter rolls in some states are a mess, which gives further traction to the narrative that voter fraud is real.

So where does this leave the country’s electoral system?

It is too easy for the right to simply dismiss the left’s concerns as the sour grapes of sore losers. Similarly, it is too easy for the left to dismiss the right’s concerns as an attempt to suppress the vote. Our challenge, as Americans, is to rise above the the partisan fray and realize that there are two common threads of truth that bind together the left and right on this issue. First is the belief that accurate elections are fundamental to our nation’s democracy. Second is the belief that our electoral systems are vulnerable to exploitation. Both of these beliefs are shared by the left and the right and both of these beliefs are true. Voting integrity IS essential to our democracy and our elections ARE critically vulnerable to exploitation. We need to fashion a solution that builds on this foundation of common beliefs and values.

What if a technology existed that could be implemented that would address concerns of the left and also the right? What if a technology could reduce the internal risk of voter fraud and also protect us from the external threat of hackers? What if I told you that the technology already exists and is known as blockchain?

Most Americans have never heard the term blockchain. Those who have heard the term probably know that blockchain is the technology that has made Bitcoin wildly successful. An overview of the technology can be found here and here. What makes blockchain technology an essential platform for cryptocurrency is the use of a distributed database to create an incorruptible digital ledger of transactions. Most applications of the technology have focused on facilitating secure and anonymous financial transactions, but the same technology can readily be used to create an electoral system virtually impervious to fraud and hacking. For those interested in a deeper dive on the technology of blockchain voting, you can find that here.

The most important thing to understand is that blockchain uses a decentralized network in order to prevent hackers from changing vote totals. I had a friend in High School who knew where his teacher kept her grade book. One day, he snuck into her classroom and changed some of his grades in the book. All he needed was access to the room. The same goes for our electoral processes. If hackers gain access, they can change the vote tallies. Now imagine if my friend’s teacher had kept 100 copies of the gradebook in different places around the globe and compared them every ten minutes. Not only would my friend have been unsuccessful. He would have been caught immediately.

This is exactly how the blockchain works. The blockchain network is continually finding digital consensus and checking in with itself every ten minutes. This forms a self-auditing ecosystem of a digital value since the network reconciles every transaction that happens in ten-minute intervals. As a result, all transactions on the blockchain are incorruptible since altering any particular unit of information on the blockchain would require the near-impossible task of overriding the entire network. This incorruptible nature of blockchain data is the ultimate way to protect our elections from hacking. In other words:

By storing data across its network, the blockchain eliminates the risks that come with data being held centrally. Its network lacks centralized points of vulnerability that computer hackers can exploit.

Transactions on the blockchain are also transparent because data is embedded within the network as a whole and is therefore public. This is the ultimate way to eliminate voter fraud since it would be impossible for someone to cast multiple votes in the same election. This feature does not mean that the identities of voters will be public. This is where encryption technology comes into play.

Nearly all security systems currently rely on a “username/password” system to protect online identities. Blockchain security methods use encryption technology. The basis for this are the so-called public and private “keys.” A “public key” (a long string of letters and numbers) is a user’s address on the blockchain. This will be the public (but still anonymous) identity of each voter. A “private key” is like a password that gives its owner access to their vote — which they can send to the candidate of their choice.

When you send someone bitcoin, the currency goes into their bitcoin wallet, which holds all the bitcoins that have been sent to it. The wallet remains anonymous, but it is also public and transparent. When one person sends a bitcoin to another person, anyone on the network can view the transaction. Any person can look into any wallet and see all the bitcoins it holds and they can also see which account sent them. With blockchain voting, each candidate in an election will have a wallet (ledger) which will hold all the bitcoin (votes) that are sent into it. When you vote for a candidate, you can look into the candidate’s wallet and make sure your vote is being properly counted. Blockchain voting will allow voters to securely cast their ballots from a computer, a smartphone or at a polling place.

Compare this approach to last week’s stunning announcement that the Netherlands, recognizing that its systems are vulnerable to hacking, will conduct its next election using only paper ballots and manual counting. This retreat backwards may be a sensible, short-term approach for the Dutch, but the United States, with over 200 million eligible voters, needs to look forward for solutions. Blockchain voting doesn’t solve every possible problem with our electoral system. Conflicts over proper methods of voter registration and identification will remain. In spite of those issues, blockchain voting represents a clear step forward, rather than a retreat, from the threats we face. Moreover, it addresses concerns that are shared by the left and right.

This raises pressing questions: Can America’s leaders remove their partisan blinders and embrace this technology? Can the right embrace it, even though it creates no political advantage? Can the left drop their politics of grievance and adopt a new approach toward electoral reform? The time to implement blockchain voting is now. One can only hope that America’s leaders realize this fact and that they will demonstrate the courage and wisdom to lead in that direction.

 

 

 

 

 

 

 

 

My Mom, a Deck of Cards, and God

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By Benjamin M. Adams on September 1, 2017        @BenAdamsO_O

 

True story.

When I was 12, my parents rented a house on a lake for two weeks during the summer. My brother and sister had a great vacation. I was bored most of the time. My only joy was spending two hours in the car, on most nights, listening to the Yankees on the radio. It was nothing short of miraculous to me that I could get NYC radio reception from New Hampshire. One evening, shortly after dinner, my mom called me into the living room. She was sitting on the couch next to my dad. I instantly knew something was up. My mom was holding a deck of cards while my dad held a paper and pencil. An empty chair faced them, with a small table in between. They beckoned me to the chair. I sat. My mom said something like “lets play a game,” but it was understood by the three of us that this was no game. They were preparing to do some whacky test on me.  At least I thought the test was on me. In retrospect, I’m not so sure.  

My mom spread the cards face down on the table, trying to make sure that it was a perfect line of fifty two evenly spaced cards.  She then told me to pick the Jack of Clubs or whatever card it was. I don’t remember which, but it was a specific card. Since they were all face down, I probably gave her a bemused look. In response, she simply said “just try your best, but really concentrate.”

So I concentrated while I looked at the line of identical cards, and eventually one seemed right so I picked it up and gave it to her, without looking.  She had told me not to look. My dad took the card and held on to it.  He had written down the card she requested. We repeated this process four more times, and each time I honed in on a card and picked it. By now, I could feel that I was really trying, whatever that meant. When we had done five cards, my mom took them from my dad.  He laid the paper down in front of me.  She flipped the cards over, in order, so that I could see them, and I was amazed to learn that I had picked all five of the cards which she had requested.

The odds of that occurring by chance are 1 in 311,875,200 [52*51*50*49*48] — well beyond the possibility that this was a fluke of some sort. The story does not end here, however.  What had taken place was a bit too mysterious for my dad, and I don’t think he was entirely ready to deal with it. He was a very open-minded person when it came to metaphysics, but he had just experienced the paranormal in a way that seemed to shock his adult mind. I guessed that it gave him a feeling of being a bit out of control.  After I picked the first five, my parents agreed that I should pick five for my dad.  So he gave a specific card, and I set about to ‘find’ it.  As I said before, I think he was a bit freaked out, so he kept talking in an attempt to break my concentration.  He was successful in this, and on the first pick I knew I had missed because my mom glared at my dad and told him not to try and stop me from getting the right card, but to help me get it.  In sequence, he gave four more cards and I picked each one of them correctly.  

Once more, my mom gave five cards, and in this third round I picked all five correctly. At that point, she had told me ten times to try and locate one card out of forty or fifty cards face down and all ten times I had picked the correct card.  Including my dad, I had picked fourteen out of fifteen cards.  A friend  who went to MIT once told me that the odds for that occurring ‘by chance’ are approximately one in 127,395,380,000,000,000,000,000.  For you numbers buffs, that figure happens to be one hundred and twenty-seven sextillion, three hundred and ninety-five quintillion, three hundred and eighty quadrillion to one.

That number may or may not be wrong—- but reasonable people will agree that there is no ‘scientific’ explanation for what took place.  I do remember the process by which I was able to focus on the correct card.  I would look at the cards and after a brief moment, my eyes would be drawn to a certain area and then to a group of three or four cards, and finally to one card in particular.  Then I would pick that card.  I was seeing without my eyes.  At least once, I separated cards which had been stuck together — knowing the card I wanted was stuck underneath a card — taking the one which had been underneath.  In this instance, I had found the right card even when the card was not in sight.  

When we stopped after the third round, I felt overwhelmingly exhausted.  I recollect feeling drained in a way that I had never felt before.  I went up to my room and passed out until the next morning.

Its been over 35 years since that evening, and I’ve never discussed these events with my dad. About ten years after it happened, I did broach the subject with my mom. She did not say, “Son, I have all the secrets of the universe. Why did you wait so long to ask?” Instead, true to her agnostic form, she basically just shrugged it off. I asked her if the phenomenon had been the result of her psychic ability or the result of mine, but she wouldn’t even commit an answer there. She said that it was obviously the two of us working together.  I wondered if she had functioned as the medium even when dad was asking for the cards.

I hardly ever tell this story because I don’t like to talk about God. Talking about God is weird and frustrating because God is something supernatural and divine and language is something human and mundane. Paradoxically, the moment you talk about God, you are no longer talking about God. I am certainly not opposed to God, but I am opposed to mental constructs of God. So I don’t talk much about that evening, and I don’t talk much about God. I do think about that evening, however, and I do think about God.

 

 

 

 

Trump Goes Iraq WMD…In Poland?

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By Benjamin M. Adams on July 6, 2017    @BenAdamsO_O

During his Poland visit, Trump took a few questions from U.S. media — always a few too many from Trump’s standpoint. In what seemed like a bizarre non-sequitur, Trump pivoted from a question about Russian interference to talking about WMD in Iraq, which is a burning issue…from 15 years ago. This comment may be many things, but a non-sequitur it is not. Quite to the contrary, Trump’s seemingly odd response underscores one of the consistent themes that proved central to his campaign. Put more directly, the Bush administration falsehoods about Iraq WMD set the stage for Trump’s ascension to the presidency.

First, deceptions about Iraq WMD allowed Trump to personally devastate Jeb Bush in the primaries. Recall Jeb’s feckless waffling about whether or not the Iraq war was a good idea. Also recall the stunned silence that befell the debate stage after Trump attacked Jeb’s fairy tale about George W. Bush keeping America safe.

Second, the issue exposed Trump’s GOP primary opponents as complicit in the historical white-washing of one of America’s greatest foreign policy blunders. Aside from Trump, every one of the GOP contenders stayed silent while Jeb slung the false narrative that George Bush was a protector of the U.S., who had not responded to the 9-11 attacks by starting two unwise and unwinnable wars against countries that had not been responsible for the attack on our nation.

Third, the issue established Trump’s appeal to independents, sometimes referred to (unfortunately) as Reagan democrats. Ironically, Trump accomplished this by breaking Reagan’s Eleventh Commandment that, “Thou shalt not speak ill of any fellow Republican.”

Fourth, and perhaps most critically, the Bush-Cheney-Rumsfeld-Powell lies about Iraq WMD, coupled with the media’s failure to critically examine those false claims, created a fundamental mistrust among Americans of both the government and media. It was this deep mistrust that served as the platform from which Trump launched his campaign of demagoguery and distortion. To this day, this mistrust sustains Trump’s “Fake News” narrative, a prophylactic against media stories that threaten to expose Trump supporters to knowledge of his own lies and misdeeds.

So when Trump responds to a question about Russian electoral interference by talking about WMD in Iraq, it is anything but a non-sequitur. Rather, it is a continuation of his central theme: Don’t believe anything that anyone tells you. Don’t trust either political party. Don’t trust the media. I alone can fix this.

Fixing America: Replace Impeachment with Vote of No Confidence

 

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By Benjamin M. Adams, July 3, 2017   @BenAdamsO_O

America needs to scrap the impeachment process and replace it with a simple no-confidence vote that will trigger a new election. This idea came to me by confluence of witnessing the British elections while concurrently trying to process the fact that Donald Trump is only six months into a 48 month term of office. It was an accidental mental mashup, like the old TV commercials for Reeses’ Peanut butter cups. Designing a better electoral system is somewhat more complicated than candy and will require more than mere happenstance.

By now, most of us have realized that impeachment is a purely political process. A president can only be impeached for “High Crimes and Misdemeanors.” However, the Framers of the Constitution left us no definitive guidance as to what constitutes either. Moreover, the Supreme Court is never going to define it for us due to political question doctrine and related issues of justiciability. For all practical purposes, an impeachable offense is whatever Congress says it is. In that sense, the impeachment process is faux-adjudication. It is politics masquerading as a criminal proceeding with an indictment by the House and a trial in the Senate.

Impeachment leaves America with a president who didn’t run for the office and wasn’t elected to it. If Trump were to be impeached, Pence would be POTUS for the remainder of the term. At the very least, Pence was on the ticket, which hasn’t always been the case. When Nixon resigned under the threat of impeachment, Gerald Ford completed his term, and Ford wasn’t even on the ticket with Nixon in 1972. (He had replaced Vice-President Spiro Agnew, who resigned under a cloud of corruption.) So impeachment should be disfavored because it leaves America with an unelected President. It also leaves the U.S. without a vice-president, at least temporarily. These are sub-optimal results, to say the very least.

Deeper problems exist with using the 25th Amendment to replace a president. Taking action under the 25th Amendment involves a vote by a small number of unelected and relatively obscure officials and would lack legitimacy in all but the most obvious and extreme conditions. So while America has two paths for replacing a president, neither of them is sound and neither is consistent with democratic principles. The solution to this problem is fairly simple: When America finds itself with a president who is corrupt, mentally unstable, or grossly incompetent (or perhaps all three), then a vote by the House and Senate should be sufficient to trigger a new election.

The benefits of this approach are fairly obvious. When America is best-served by replacing a sitting president, it should be, to the maximum extent possible, the product of democratic processes. Congress consists of popularly-elected representatives of the people.  A super-majority vote — 50% in the House and 67% of the Senate — is currently required to impeach a President. This is why I prefer impeachment immeasurably when compared to taking action under the 25th Amendment: It reflects the will of the people as expressed by their representatives, and it also preserves accountability since those voting for and against impeachment will eventually face the voters if they wish to continue serving.

I dislike requiring a higher threshold in the Senate than in the House. My preferred formulation would be that a vote of 60% of the House and 60% of the Senate should be sufficient to trigger a new election. Moreover, the new election should be a do-over of the last election. This means, every House seat is up for grabs and same for 1/3 of the Senate. This will prevent any given political party from gaining control of the Congress and then immediately impeaching the president. If they do so without deep public support, such improvidence will lead to the loss of its treasured majority status. In other words, Congress will have lots of skin in the game, so they are unlikely to abuse their no-confidence power. For that reason, I would be entirely satisfied with a simple majority vote triggering a new election.

A number of other benefits would accrue from this change. We dispense with the phony formalism of “High Crimes and Misdemeanors,” which has no discernible legal meaning. We replace this Constitutional pretense with an honest, “Ooops. We made a mistake at the last election.” We further dispense with the Senate “trial,” which holds no value whatsoever. Does anybody honestly think that the Senate vote on President Clinton’s impeachment would have changed if there had been no trial? The impeachment trial is America’s only “show trial.” For those unfamiliar, show trials have a very bad history across the world and are still embraced today in illiberal states. With the elimination of the trial, we also eliminate the participation of the judicial branch in a process that has always been purely political anyway.

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