Supreme Court Allows NY Vaccine Mandate

 

Once again, at least three members of the Supreme Court have made clear that their notion of religious liberty takes precedence over every other right or constitutional protection. This time these champions of religion are in the minority, dissenting to the majority's refusal to block enforcement of New York's vaccine mandate which requires health care workers to be vaccinated or be fired, without an exemption for religious beliefs.

History teaches that the nation's founders, though not deeply religious, recognized the importance of safeguarding the right to practice a religion without government interference or undue favor. At bottom, the founders were committed to keeping church and state separate; it was not their intent to elevate religion above all else.

To suggest, as do the dissenters led by Justice Gorsuch (joined by Justice Alito with Justice Thomas dissenting separately), that the government's paramount duty, to protect the health and safety of the citizenry, can be overridden by strained religious objections turns on its head the language and intent of the First Amendment, that Congress shall make no law "respecting an establishment of religion".

The End of Bi-Partisanship in Foreign Policy

 Time was, as the old saying goes, politics ended at the shoreline, Americans closed ranks and united to oppose the threat of foreign aggressors and foreign policy was a bi-partisan exercise. No longer. Now, the right-wing, led by the likes of Sean Hannity, constantly belittles and berates an American president even as he squares off against and attempts to deter the growing aggressiveness of a belligerent Vladimir Putin.

While Fox talking heads profess to abhor Mr. Putin  they persistently praise him and his autocratic ways even as they support a man, Donald Trump, who would end democracy in the United States. Patriotism, as defined by the Right, has taken on a strange new meaning.

Supreme Court Argument of Mississippi Abortion Case

 Based upon the statements made and questions asked by Supreme Court justices, during oral argument of the Mississippi abortion case, the handwriting is on the wall; the court likely will overrule Roe v. Wade or, at a minimum, uphold the right of states to grossly narrow the period after pregnancy during which abortions will be permitted.

The position seemingly espoused by Justice Brett Kavanaugh, that because the issue is so significant and controversial, the court should be "scrupulously neutral" and leave the decision to the states, is morally outrageous and legally indefensible. That same illogical reasoning could have been advanced when Brown v. Board of Education was argued, leaving the choice of segregation to each state legislature.

The primary function of the Supreme Court is to protect individual liberty against incursions by politically motivated or narrow-minded state legislators. When an important constitutional right is endangered the justices are not expected to punt.

The silver lining of this likely outcome, horrendous as it may be, is a backlash at the polls, driven by women and those respecting the rule of law,  sweeping Republicans from office.

Appeals Court Blocks Biden's Vaccine Mandate

 In blocking President Biden's vaccine mandate a Fifth Circuit Court of Appeals panel, made up of three Republican-appointed judges, issued an opinion that is patently political and policy oriented. Thus, the court said that the "mere specter" of the mandate contributed to untold economic upheaval. The panel further opined that the mandate threatened our constitutional structure and the liberty of individuals to make "intensely personal decisions according to their own convictions". 

One can safely predict that the same panel would be far less sympathetic to and protective of the right of a woman to make the "intensely personal decision" of whether to bear a child. 

When, inevitably, this case reaches the Supreme Court the conservative bloc of justices will likely perpetuate that same hypocritical view of personal liberties and government intrusion. If the action being challenged accords with their policy preferences (e.g. banning abortions) it will be upheld. If it offends their politics (e.g. gun regulation, public health measures) it will be struck down. That is not how the rule of law should operate.

To End The Crisis At Rikers

 

Former NYS chief judge Jonathan Lippman is right to condemn the deplorable conditions  and unacceptable number of deaths at the Rikers Island jails. (11/12, A-23) His recommendations, on how to reduce the jails’ population until they can be finally shuttered, are commendable and should be implemented. However, there is another important measure which should be adopted that would make a significant impact on solving the problems he identifies. Many persons spend inordinate amounts of time in jail awaiting trial because there aren’t enough judges to conduct them. In NY appointed judges are compelled by the state’s constitution to retire at age 70. This antiquated requirement, enacted when 70 was considered ancient, makes no sense in the modern world and results in the loss to the criminal justice system of scores of experienced, well qualified judges who could handle the backlog of cases in a fair and efficient manner. Until the constitution can be amended to remove this out-dated and harmful barrier, the legislature should provide for the reappointment of these retired experienced jurists as emergency judges empowered to preside over criminal trials and quickly reduce the number of defendants who now languish interminably in jail for want of a trial.

Supreme Court Hears Second Amendment Case

 

It appears,  from comments made during oral argument, that the conservative majority of the Supreme Court is poised to strike down New York's regulation of the right to carry concealed weapons outside the home. 

The court's originalist justices seem ready to apply their version of history without regard to the distinction between muzzle-loading guns, which were the weapons in use when the Second Amendment was adopted and the automatic, high-volume firearms of today. Imagine if the Constitution had another amendment, adopted in the 18th century, which provided that the right of the people to drive a conveyance, at that time a horse and buggy, may not be infringed. Would today's justices conclude that a state may not require a licensing test before permitting a citizen to operate a 400-horsepower car, an 18-wheel tractor-trailer or an interstate bus? 

If the Constitution cannot be interpreted in the light of radically changed circumstances it becomes a straitjacket rather than a protective shield.

Supreme Court Won't Block Vaccination Mandate

 The Supreme Court denied an emergency application which asked the court to block enforcement of required vaccinations for health care workers in Maine notwithstanding their religious objections (10/30, A16):

Not surprisingly, Justice Neil Gorsuch, joined by Justices Thomas and Alito,  dissented. Justice Gorsuch opined that the hardships borne by health care workers, now being fired for adhering to their constitutionally protected religious beliefs, made their "plight...worthy" of the court's attention. Apparently, in the view of these three justices, the plight of religious health care workers far outweighs the harm being done to thousands of women in Texas whose constitutionally recognized right to abortion is being blocked by state law. The health care needs of these women seem to matter little and they may be forced to travel to other states for help, bear the children of rapists or simply suffer their fate in silence while the Texas law is tested in court. 

Where were your concerns and those of your conservative colleagues on that one , Justice Gorsuch?

Supreme Court Schedules Argument on Texas Abortion Law

 Let's state the obvious; at least five justices of the Supreme Court disapprove of abortion and likely disagree with the holding of Roe v. Wade, that there is a constitutional right of privacy which protects a woman's right to obtain an abortion before the advent of fetal life. 

The Texas law which permits financial punishment of abortion providers and those assisting them, is unquestionably unconstitutional under current law. Yet, by repeatedly refusing to enjoin its application, a majority of the court is signaling their intent to overrule Roe v. Wade and strip women of a right previously protected by the constitution. In doing so, the court is allowing Texas ( and any other state that may follow suit ) irreparably to deprive women of the immediate health care they require. Setting an early date for oral argument is hardly any solace to women whose health needs will be unaddressed and whose rights will be irretrievably lost in the interim. Nor does it alter the likely demise of Roe v. Wade which the majority of the court seems to be straining at the leash to bring about.

Bush 2021, Please Meet Bush 2001

 Jamelle Bouie is correct to recall that George W. Bush was the architect of policies that infected the American electorate and grew to be the crisis which now threatens our democracy.It is understandable that Mr. Bouie greets a recent Bush speech, condemning terrorism at home and abroad and the polarization of American politics, with great annoyance (“galling”).

Indeed, the Bush administration’s subversion of American unity and idealism is tempered only by comparison to the naked authoritarianism and lawlessness of the Trump years. And though Mr. Bush, as president, did a few praiseworthy things, such as funding AIDS relief in Africa and speaking in defense of Muslim-Americans,it is, nevertheless, hypocritical for him to now pose as a revered elder statesman admonishing a wayward nation for enlarging the practices he once preached.
Of coarse, reformation should be encouraged and Mr. Bush can make a useful contribution to the battle against domestic terrorists by continuing to speak out. His transformation would be more convincing, however, were he to acknowledge the error of his earlier misdeeds and atone for his own sins.

Justice Department to Challenge Texas Abortion Law

 

The defenders of the Texas abortion law are making two outrageous arguments in its support.
First, they contend that, although the law offends the Constitution as interpreted by the Supreme Court in Roe v. Wade, it may not be challenged because its enforcement has been entrusted by the State to private citizens who are not state actors. By concocting a scheme to empower vigilantes to sue persons exercising recognized constitutional rights, and offering a bounty to incentivize such illicit lawsuits, Texas has thumbed its nose at the rule of law and is leading the charge to dismantle democracy.
Just as offensive is Gov. Abbott’s incomprehensible suggestion that the Texas law’s failure to make exception for victims of rape is, somehow, excusable because he intends to “eliminate “ rapists. The utter absurdity of that statement is apparent on its face.How does one identify would be rapists before they act and what legal justification can be offered for their elimination absent the commission of a crime?
If Abbott is referring to rapists who have already struck, what  comfort can a victim draw from Abbott’s patently preposterous boast?
The governor might just as well have announced the closing of all prisons in Texas because he intends to eliminate criminals.

Justice Department to Intervene in Texas Abortions

 Attorney-General Garland has announced that the Justice Department would continue to protect women who seek an abortion in Texas. The question is, how?

May I suggest that DOJ attorneys act as counsel for women sued by the vigilantes deputized by Texas law to act for the state against persons assisting procurement of abortions. The federal lawyers should make it clear that they will seek to recover legal fees and costs from persons acting on the state's invitation to violate the constitutional rights of pro abortion actors. Indeed,  it would be an effective deterrent to assert counterclaims seeking money damages from the vigilantes for their defiance of the Constitution.

Supreme Court Allows Texas Abortion Law to Take Effect

 The Texas law which enables the punishment of persons obtaining or aiding an abortion after six weeks of conception is a violation of a constitutional right recognized by the Supreme Court in Roe v. Wade. The patently disingenuous attempt by Texas to cloak that fact, by passing its enforcement powers to private persons, should be promptly and roundly rejected by the Supreme Court.

The argument that this law is beyond judicial scrutiny because it does not amount to “state action “ is without merit.By granting private individuals standing to sue abortion recipients, providers or abettors, when no such authority would otherwise exist, Texas has exercised its state powers and deputized its citizens to act on its behalf as vigilantes.
Furthermore, judicial enforcement of this law by state courts, enabling unconstitutional invasions of protected rights, constitutes state action triggering constitutional protections.

The War on Terrorism

 TO THE EDITOR:

If any lesson has been learned in the first quarter of this century, it is that the threat of terrorism cannot effectively be combatted by invading, occupying and attempting to re-make the government of a foreign nation. That approach has failed every time at great cost in lives and treasure. The terrorists find new ways to consolidate and train and new places to muster. The occupied country, once evacuated, never sustains conversion to imposed democratic government.
There are better ways to deter and punish nation-states that support or harbor terrorist groups. The use of economic sanctions, including termination of aid, the freezing of assets, cutting trade and barring access to the global banking system and world markets can be an effective means of deterrence, particularly when coupled with diplomatic isolation and travel restrictions. And when all else fails, over-the-horizon use of force involving targeted air, missile   and drone attacks and/or surgical strikes by special forces can neutralize any nascent terrorist development of training sites or command infrastructure.
Sadly, it is now apparent that the greatest threat to the American homeland is domestic terrorism. The danger to our democracy posed by White nationalists and other anti-democratic forces is growing exponentially and, emboldened by the tacit support or willful indifference of cowardly or power-hungry politicians, is becoming more violent and aggressive every day.

How Racist Is America?

 David Brooks asks “How Racist Is America?” (Editorial, July 23):

He begins his answer by accurately describing the historical and continuing barriers to economic and cultural advancement faced by Black and Native Americans. Then he clouds the issue by describing the success immigrant groups have had in moving up the economic and social ladders of American society. He compounds the confusion by broadly defining “people of color”. While he may be technically correct, the simple fact, as Mr. Brooks seems to acknowledge in other parts of his essay, is that persons who are visibly identifiable as Black, whether native or immigrant, continue to face discrimination in the broader society.
The more Black a person appears to be, the more likely she is to face heightened barriers spawned by racial prejudice. That prejudice is baked into the structure of American life and is, thus, systemic. Yes, the concept of “color” is a complex one, made more so by disparities in self-identification. And yes, the growing phenomena of interracial marriage may change the future. But for now, despite the fact that America may continue to be a land of opportunity for an astounding diversity of groups from around the world, it remains a land of white privilege that stamps it as a white supremacist nation.

New Racism Won't Fix Old Racism

 

Put aside, for the moment, the notion that basic fairness may require some table-tipping to offset centuries of disadvantage driven by racial animosity. When Chief Justice John Roberts uttered his infamous truism, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”, he was, in the best light, guilty of gross naïveté.
States dominated by white legislators who put retention of power above preservation of democracy, will not stop discriminating as demonstrated by their continuing passage of laws limiting the voting rights of non-whites and reshaping voting districts for political (racial) advantage.
Since the Supreme Court has gutted the Voting Rights Act and declined to prevent partisan gerrymandering, the only remedy must come from Congress. And we all know that Congress, as currently constituted and as likely to continue being constituted, will provide no legislative relief. So, Mr. Stephens, if raising public awareness of racism and the role it plays in our society is a form of new racism that won’t fix the old racism, what do you see as the solution?

Biden Narrows Plan To Rebuild Infrastructure

 

In his vain attempt to achieve "bipartisanship" on infrastructure legislation, President Biden is violating a cardinal principle of effective bargaining; don't negotiate against yourself. By repeatedly reducing the scope of his plan to revitalize and rebuild the nation, without any meaningful concessions from Republicans, Mr. Biden is likely to jeopardize the success of his initiatives and further embolden Republican obstructionism. The end result is foreseeable. Should the president get any legislation at all it is likely to be a watered down version which fails adequately to advance the goals of the program or rekindle  a scintilla of bipartisanship.

Philip Morris Ad

 Philip Morris International, having knowingly created and promoted, for many decades, products that caused unimaginable suffering and premature death, now poses as the champion of a smoke-free future. In a full-page ad in the NYTimes (5/11), the company’s CEO ballyhoos its move to replace cigarettes with “better alternatives”.

First, cigarettes should not be any kind of alternative; they are deadly poisons that should be banned (and no longer be produced) just as other carcinogenic products have been banned. And the proposed smoke-free alternatives the company hails (presumably e-cigarettes or “vapes”) have been found to pose their own health risks, especially for young persons.
So, if Philip Morris really wants to perform a life-saving public service it should immediately stop producing cigarettes, shelve its smoke-free alternatives and further develop its other lines of business.

Pot Use Made Anti-Semitic Killer Unfit to Stand Trial

 The ruling by the highest court in France, that the brutal killer of an older woman, because he identified her as Jewish, may not be tried and held accountable  by reason of impairment of his judgment by chronic use of pot, is both wrong-headed and dangerous. The court found that French law does not allow a person to be held criminally responsible if, at the time of the crime , he was suffering from a neuropsychic disturbance that deprived him of control over his actions. The court relied on the fact that the law, as written, does not distinguish between a condition occurring naturally or one that is voluntary, as in the present case where the perpetrator’s voluntary use of drugs induced a delirious state. If the court is correct the law must be changed.

The law in the United States varies from state to state. In most jurisdictions voluntary intoxication, by drug or alcohol use, is not a complete defense to criminal prosecution. It may result in a reduced charge which doesn’t require specific intent, such as a charge of manslaughter instead of premeditated murder. Allowing a killer to avoid responsibility entirely, if he chooses to get “high” before engaging in murderous acts, is a recipe for disaster. You can’t confine him once he is sober so he walks away without punishment or constraint on future acts of violence.
Yes, fifty million Frenchmen can be wrong.

Backlash Against NYPD Use of Robotic Dog

 The negative  reaction to the use , by the N.Y.P.D., of a robotic dog in standoff encounters with potentially armed persons is misplaced and mainly mistaken. While there is a valid concern for possible invasions of civil liberties and a reasonable argument that the money spent on such devices might be better used for other needs, the use of these robots can help address the epidemic of police shootings of unarmed Black persons.

Properly regulated to insure compliance with the civil liberties of citizens and avoidance of discriminatory use, such devices can be used to defuse dangerous situations with a lowered risk of deadly force. For example, the police may gain assurance that a self-barricaded person is not armed and, therefore, may be apprehended without the use of deadly weaponry.
Though the use of these robots may be useful in very limited circumstances and will hardly remedy the distressing increase in police shootings, every life saved is sacred.

America Has a Ruling Class

 

 Samuel Goldman, in his column, argues that persons of privilege and power often masquerade as common folk and disrupters of the status quo because that allows them to distance themselves from the consequences of their decisions. Another reason, he postulates,  is their discomfit with the dominant positions they achieved given their rebellious youth. While these proclamations may be accurate they miss the greater myth perpetrated by the powerful, that they have the interests of the common man at heart.

Somehow, the Republican party, which for generations has promoted and protected the concerns of the wealthy and privileged, corporate and individual, has managed to persuade the working class (or at least a large segment thereof) that it is their champion. This bewildering achievement has been gained by, among other things, not so veiled appeals to racial and religious bigotry, fracturing the working class.

While the Democratic party has its own exemplars of intolerance and power-hungering politicos, it has, in many respects, advanced programs benefitting the less privileged. Still, today a substantial percent of the Hoi Polli regard Democrats as elitist and out of touch their concerns around religion, guns and right to life. Now these masses march behind Republican banners and identify with the most regressive elements of that party and with outsiders whose vision for America is even more invidious

The successful impersonation of Every Man by the privileged class will be the ultimate undoing of our civilization.

Democrats Seek To Raise Taxes On The Richest

 

My question to Republican legislators; do you accept the reality that infrastructure ages and falls into disrepair? Assuming you answer truthfully, who do you think will pay for replacement and repair? Surely not individual states. So where will the federal government get the money to fund this essential rebuilding?

Yes, the government can borrow, indeed, quite cheaply at today's rates. but most legislators (and voters) prefer that improvements be paid for from the government's revenue stream. That revenue stream derives from some form of taxation whether on income, consumption, estates and corporate profits, or some combination thereof.

Democrats say raise the income tax on the wealthy and large corporations. Republicans favor raising sales taxes and keeping the tax breaks for millionaires in place. Sales taxes, including taxes on fuel, are paid primarily and overwhelmingly by the average consumer and only minimally

 impact the wealthy.

So what is the fairest and most equitable means of financing the rebuilding of the nation's infrastructure? By putting the cost on the working stiffs, stagnating their economic progress, or by more heavily taxing the rich whose lifestyle will remain unchanged and large corporations who are most benefitted by a rebuilt and modern infrastructure? You decide.

Sharp Divisions on Police Violence Case

 A closely divided Supreme Court has held that a woman shot by pursuing police officers has been "seized" within the meaning of the Fourth Amendment even though she managed to escape.  A18, March 26. Thus, the woman will be permitted to maintain a lawsuit against the officers for use of excessive force. Three justices, through a dissent written by Justice Gorsuch, mocked the majority's ruling as contrary to common sense and as bending the law to appease public opinion.

The rather esoteric issue of whether a bullet striking a person constitutes a seizure while a missed shot would not, could be made irrelevant if the Court adopted a common sense approach which recognized the concept of an attempted unconstitutional seizure. The liability of  private citizens who attempt to commit a crime which they fail to accomplish is a well-recognized principle of law. Yet the Supreme Court has resisted treating an attempted unreasonable seizure as a constitutional violation. There is no good reason for the Court to draw such a distinction since attempted constitutional violations are just as abhorrent and may well inflict as much damage as  completed ones.

Just like a private citizen a police officer who unreasonably attempts but fails to seize someone should be held accountable for the harm caused by his unlawful conduct.

G.O.P. Officials Press Biden Over Restrictions in Stimulus Plan

 

The contention by twenty-one Republican attorneys general (3/17, A18), that a provision in the $1.9 trillion economic aid package unconstitutionally prohibits states from cutting taxes, is a patent sham. The revenue used by states to fund services, maintain and expand infrastructure and repay debt is fungible and represents a zero sum pot of money. If states take federal stimulus funds and, at the same time, reduce state taxes they are clearly using the federal money to lessen the state tax burden, a use made impermissible under the American Rescue Plan. 

The intent of the Plan is to enable states to combat the health and economic deficits wrought by the pandemic, not to substitute federal funds for state raised revenue, a claim hypocritically leveled against blue states by Republicans who opposed the stimulus.

The Constitution: Living or Dead?

  Originalists subscribe to the notion that the Constitution's language, and that of the Bill of Rights, was written by the fiery finger of a god possessed of incalculable and eternally enduring wisdom, or by men of similar stature and sagacity. So conceived, it is a sacred text, oracular in its foresight and susceptible of change only by the most challenging of means; the amendment process.

Originalists insist that what matters only is the text, the words used without regard to the intent of the draftsmen. And the meaning of those words must be understood in the context of the times in which they were written, not as that meaning may have changed over the centuries.

Simply put, when interpreting the Constitution the interpreter must look to how 18th century man used and understood the words in the text. To depart from that principle invites the interpreter to substitute personal preference and modern prejudice. The result, an ever-changing document used to justify rather than guide the decision maker.

Thomas Jefferson responded to such illogic as follows:

" Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human... But I know also that laws and institutions must go hand in hand with the progress of the human mind." Jefferson's pronouncement was prophetic. To the extent that the Constitution serves as a blueprint for governance, it is unwise to worship words or concepts crafted in another time to deal with a very different world. Many of the Founders had perspectives about slavery, race, punishment, women's rights and social relationships that are radically out of step with modern thought and philosophy. Because they knew change was inevitable, and necessary, they bequeathed to their posterity a document that could live, adapt and evolve. To insist that today's legal and moral issues must be resolved only by reference to 18th century language as then understood, is shortsighted and unsustainable. Such an approach merely straitjackets our society, inhibits its continued growth and threatens the relevance of our revered charter.

The Legacy of Rush Limbaugh

 If we are to retain some measure of civility and grace when speaking of the dead, however repugnant to those qualities the deceased may have been, we must be candid but not rejoiceful. So says Frank Bruni in his Op-Ed in the Sunday Review, ("Must We Dance on Rush Limbaugh's Grave", SR3, 2/21).

I beg to differ. Perhaps it's a matter of the degree of evil exercised and now gone. Surely, Mr. Bruni would agree that the world was justified in saying good riddance to the likes of Adolf Hitler. While I do not mean to imply a direct comparison, the harm done by Mr. Limbaugh to the cause of democracy and humanity was significant and will continue to plague our society for years to come. Though his demise may lessen it will not erase the evil he has spawned and it does not offend my sense of good taste to say good riddance.

Post Impeachment Consequences

 Regretfully, reports of the death of the Republican Party are exaggerated and premature. Given the gerrymandering sanctioned by the Supreme Court, the blatant voter suppression and the contagion of hatred and conspiratorial beliefs infecting a substantial proportion of the populace, don’t count on a collapse of Republican prospects in upcoming elections. The legislators who have sold their souls, by their unwavering support of Trump despite overwhelming evidence of his corruption, criminality and incompetence, are betting on a rising tide of anti-democratic sentiment to bolster their electoral ambition.

 Unless President Biden is able to enact his agenda, reining in the pandemic, restoring the economy, solving problems of immigration and racial injustice and rebuilding the Nation's infra-structure, I am terrified by the prospect that the 2022 midterm election will see recapture of the House and Senate by a party being declared deceased by wishful thinkers. Should that happen, a prediction of the death of our democracy will not be an exaggeration.

Impeachment Trial

 

Am I the only one who believes that the final argument made by Trump’s lawyer was, in large measure, read by him from a text that he seemed unfamiliar with and that sounded eerily as though it had been written for him by Donald Trump’s attack dog, Stephen Miller?

Trump's Concocted Defense

 The argument made by some Republican senators, that an impeachment trial of Donald Trump would be unconstitutional, is legally wrong for multiple reasons including the language of the Constitution, past precedent, recorded statements of the Framers and simple logic. However, the most compelling is the sheer hypocrisy of the claim that the trial is barred because Mr. Trump is no longer president.

In fact, Mr. Trump was impeached by the House while still in office and a trial in the Senate could have been conducted during his term but for the delay ordained by Majority Leader McConnell. Having engineered the delay, it ill behooves Republicans to claim that a trial now would be constitutionally untimely. This patent ploy calls to mind the old saw about the man who murdered his parents and asked for mercy as an orphan

Trump's Impeachment Defense

 To demonstrate the absurdity of Donald Trump’s First Amendment defense, the claim that he cannot be impeached for inciting insurrection because he was exercising his free speech rights when he addressed the crowd, consider this hypothetical scenario. Trump is arrested and charged with treason for giving the nation’s most sensitive military secrets to the Russians. At trial he argues that he cannot be convicted because his disclosure to the Russians was protected speech. Give us a break!

Supreme Court Test for Biden

 

President Biden’s solicitor general should not hesitate to reverse the government’s position in cases pending before the Supreme Court, notwithstanding Chief Justice Robert’s long ago admonition to an Obama lawyer for using the phrase “upon further consideration “ as being disingenuous. The new administration should emulate the Trump attorneys who baldly changed course in midstream without penalty or comment from the high court. The positions taken by Mr. Trump’s solicitor general in several pending cases are both legally and ethically flawed and should be promptly and forthrightly disavowed by the new team at the Justice Department.

The 'Progressive Prosecutor' Myth

 

In his Op-Ed " The 'Progressive Prosecutor' Myth, (A27, 2/5), Malik Neal makes many indisputable assertions. Yes, persons accused of crimes are presumed innocent and should not be held in jail merely because they are too poor to post bail. Yes, mass incarceration is a national shame that disproportionately victimizes people of color. It is also probably true that many prosecutors who gained office by promising significant reforms of the bail system have failed to deliver.

But Mr. Neal is wrong to put the entire blame for the failings of the criminal justice system upon prosecutors as having the "power and voice" to dictate decision-making. The ultimate power to determine whether any accused person is to be detained or released rests exclusively with the judge handling the case. To the extent that judges defer to the recommendations of prosecutors, without independently weighing the risks of flight and potential harm to the public, they are abdicating their authority and responsibility to exercise sound discretion and to deliver impartial justice.

The unfortunate fact is that too many judges seem to lack the backbone to reject excessive bail demands made by prosecutors, for fear of public denunciation. When prosecutors, driven by that same apprehension, inflate their bail requests, the result is a toxic mix of justice denied.

As Far-Right Peril Brewed, U.S. Scrutinized the Left

 In a very troubling article ( aren't they all? ) in the Sunday NY Times (front page, 1/31), it is reported that Donald Trump and top officials in his administration diverted the attention and resources of the FBI and Homeland Security from investigating far-right domestic terrorism, which had been identified as a growing threat to the nation, and directed those agencies to focus, instead, on antifa and the protests for racial justice. The consequences of that politically driven detour were made clear at the Capitol on January 6th.

While the article properly places blame upon Mr. Trump and former Attorney General William Barr, both of whom directed subordinates to beef up fruitless efforts to find left-wing conspiracies and to stand down on the threat of white nationalism, the report fails to pay necessary attention to the role of Republican legislators and right-wing media in promoting that misdirection. The myth that antifa was the true threat and that racial protests were a greater menace than white domestic terrorism was echoed by Republican senators and representatives and was amplified nightly by the "Murderers' Row" of commentators on Fox News, Carlson, Hannity and Ingraham. The persistent falsehoods spewed by those elements left our country unprepared to deal with the violence their malicious pronouncements incited.

Republicans' Links to Extremists Draws Scrutiny

 

While we must not make light of Donald Trump’s incitement of domestic terrorists, we should recognize that his presidency kicked over the rock sheltering the multitude of hate groups secretly spawning just beneath. The threat to our nation has been long simmering in the shadows but now, emboldened by Trump, this growing horde of diverse insurgents has surged into the open, raising our awareness of the magnitude of the peril.
Trump’s reign has also unmasked the many elected officials, all of them Republicans, willing to abandon constitutional duties for the pursuit of power.
Now that Trump’s collaboration with Society’s worst elements has exposed more fully the heightened danger and sounded the alarm, we may, with greater resolve and sense of urgency, man the ramparts.

Senate Republicans Vote to Dismiss Impeachment Article

 

One of the justifications being offered by most Republican senators, for not holding former president Donald Trump accountable for inciting insurrection, is that to do so would promote disunity and inflame further violence. 

That argument smacks of appeasement and evokes a striking parallel to the disastrous response of Britain to Hitler's annexation of Czechoslovakia. When will these Republicans learn from history that ignoring naked aggression only invites greater incursions and that appeasement for the sake of perceived political gain is the surest path to national self-destruction.

Trump's Final Act

 As Trump sulks and fumes, out of sight in a nearly deserted West Wing, convinced that he is not a loser but the victim of a vast conspiracy, it is appropriate to put matters in context.

The vote which Trump claims was rigged was cast and counted in a country dominated by his presidency, a Republican controlled Senate, a conservative Supreme Court populated by his appointees and a majority of state governments under the sway of governors and legislatures made up of his declared supporters.
Nevertheless, Trump suffered a decisive defeat, in both the popular and electoral vote.
And yet, his constantly repeated lies, echoed by elected officials and reinforced by right-wing media, has persuaded tens of millions that the election was stolen and that the country is falling into the hands of crazed socialists and the “others”. It seems that a growing number of disappointed Trumpists have been radicalized by the domestic terrorist faction and now teeter on the edge of outright revolt.
Whether a confession of error by Trump could quell the rising tide of violence is doubtful; the dogs of war have been unleashed. Whether our democracy survives may well depend on the loyalty to constitutional duty of the military and police forces, members of which have been found in the ranks of the fascists.

Dershowitz Back to Defend Trump

 

Alan Dershowitz infamously defended Donald Trump during the last impeachment trial by arguing that whatever the President did could not be wrongful because Trump believed that he was acting in the national interest when he engaged in corrupt acts to further his re-election.

Mr. Dershowitz is stepping forward, yet again, in the guise of a defender of the Constitution, to shelter Mr. Trump from a second attempt to impeach him. Mr. Trump disregarded truth, constitutional imperatives and democratic norms when he falsely claimed victory in an election he clearly lost and baselessly accused his opponent of rigging the vote. Mr. Trump lied repeatedly to inflame millions of his supporters and gave license to the most dangerous among them to attack legislators performing their duty in the halls of Congress.

Notwithstanding, the real threat to our Constitution, as Mr. Dershowitz sees it, is the attempt by Democrats to hold Donald Trump accountable. So, while democratic government teeters on the edge of tyranny, Mr. Dershowitz once again dons his armor as knight errant and rides to the rescue of Donald Trump. 

Republicans' Challenge to Election

 The justification offered by many Republican members of Congress, for their challenge to the legitimacy of Joseph Biden’s election to the presidency, is that millions of their constituents believe that the election was fraudulent and they, as representatives, have a duty to investigate those concerns.

This self-serving excuse for attacking and imperiling the foundation of our democracy is built upon a vast public delusion created by the wholly unfounded and oft repeated rants of a deranged president who has been abetted by the very people who now invoke that delusion as cover for their shameful shenanigans.
These offenders, who act from political self interest at the expense of national good, do not claim there exists any real evidence of election rigging; only that many people harbor that false belief ( which they have promoted )and, therefore, it warrants denial of the well documented election outcome and a grotesque charade of an inquiry.

Assault on the Capitol

 History is a potent teacher and we ignore her lessons at our peril. In 1933, three weeks after Adolf Hitler became Chancellor of Germany the Reichstag was set on fire. The arsonist was identified as a communist and the Nazi Party used the burning of the German parliament building as an excuse for the passage of a law which served as the springboard for the establishment of the Nazi state.

How the United States handles today’s unprecedented attack by a Trump instigated mob upon the seat of American government and the principles of democracy and the rule of law, will determine whether our country survives as a free and democratic nation.

Trump's Criminal Call

 

Put aside the blatant threats, patent coercion and unmitigated falsehoods rife in Donald Trump’s  telephone rant to Georgia’s Secretary of State Brad Raffensperger, the call was a criminal act, an outright solicitation of election fraud that must not go unpunished.
Instructing Mr. Raffensperger to “find” the exact number of votes needed by Trump to overcome the margin of victory established by President-Elect Biden and to change the result by claiming to have “recalculated” the vote, clearly constitutes criminal misconduct under state and federal law. Proof of the crime is established beyond a reasonable doubt by Mr. Trump in his own recorded voice.
State authorities and the soon to be appointed Attorney General should present the evidence to Grand Juries. Resulting indictments will be triable after Trump leaves office and can no longer claim presidential immunity.