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Is a fascist movement developing here?

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Written by Nick Licata | 12/17/20


 

 

After Joe Biden won the presidential election, there has been a proliferation of right-wing Trump rallies. Is this a movement to discredit our democratic institutions?

ProudBoys

Proud Boys march during a rally for President Trump on Saturday in Washington. (Evelyn Hockstein for The Washington Post)

Since the media declared that former Vice President Joe Biden won the presidential election, right-wing Trump rallies have declared that the election was a fraud and Trump’s win was stolen from him.

Historian Timothy Snyder in his book “On Tyranny” argues that institutions preserve our decency. They do not protect themselves. They fall if citizens do not protect them.

The Trump-appointed Director of Cybersecurity, Chris Krebs, was fired because he announced the vote across the nation “was the most secure in American history.” Krebs has since filed a lawsuit charging that Trump has initiated a campaign of intimidation, retaliation, and threats against Republicans.

Those are the Republicans who as state officials administered their elections. Trump attacked them for refusing to back up his unsubstantiated claims of massive election fraud. The national leadership of the Republican Party did not step forward to protect them. They were silent.

Trump, as president of our democratic republic, should be our national leader in citizenship. Instead, he has repeatedly refused to recognize that every judge he has asked to overthrow Biden’s victory, including judges he appointed as true conservatives, has concluded that his claims of fraud are baseless.

A couple of thousand pro-Trump anti-election protestors marched and rallied in Washington D.C. on Saturday, Dec. 12, two days before the electoral college made the president’s loss official. Washington Post journalists described them as maskless rallygoers cursing the Supreme Court, President-elect Joe Biden, and even Fox News for not recognizing Trump’s victory. Trump tweeted his support of the demonstration, “Wow! Thousands of people forming in Washington (D.C.) for Stop the Steal. Didn’t know about this, but I’ll be seeing them! #MAGA.”

Police estimate that the crowd included about 700 Proud Boys wearing their colors of yellow and black, with a number of them dressed in body armor and helmets. Trump had previously asked them to “stand down and stand by,” hinting that he may need them to engage in some sort of physical struggle to assist him. The Proud Boys were reported to have marched through downtown in military-like rows, shouting “move out” and “1776!” At some point, they burned a “Black Lives Matter” banner belonging to the Black community’s historic Asbury United Methodist Church.

Despite the Proud Boys being accused of damaging four Black churches in DC, strong Christian beliefs appear to sustain Trump’s campaign to overturn the election. Addressing the gathering, conspiracy theorist Alex Jones, the host of Infowars, spoke of God and how Joe Biden “will be removed one way or another.” Another speaker, Black right-wing podcaster David Harris Jr., said if there were a civil war, “we’re the ones with all the guns.” Harris is a devout Christian who rails against authoritarian statism, secularism, and socialism as threats to a free society.

Protestor Ruth Hillary, 58, a pastor from California, is a prime example of the spirited foot soldier in Trump’s camp. In an interview with Washington Post reporters, she said she would continue protesting and holding up her sign, “Stop the Steal”, as long as the president believes she should. If he accepts a defeat, then she would too, “But right now, this is a Godly protest.”

Trump has founded and propagated an anti-democratic populist movement that appears more loyal to him than to our democracy. His supporters repeatedly proclaim that they are simply defending our constitution. But the verbal defense of a constitution or a republic, without acknowledging that both are sustained through a stable democratic process, is not enough to avoid moving toward tyranny.

One can trace this faulty, if not devious, strategy back two thousand years when Caesar Augustus became Rome’s first emperor without ever proclaiming that he was. Instead, he took the title of first citizen, assuring the Senate that his efforts were to save the republic, not to terminate it. We know how that went. The republic died and never returned.

In the period between the two world wars, fascism was created by Benito Mussolini, who had become disillusioned with socialism. Like any ideology or “ism” there will be many competing definitions. But in the end, all ideologies have a cluster of features that describe them.

Author and professor Eco Umberto provides a list for fascism in his 1995 essay titled Ur-Fascism (Eternal Fascism). He begins by noting that fascism creates a cult of tradition which leads to a belief that there is no need for additional learning, the truth has already been spelled out. Tradition is elevated to the point of conflicting with the scientific approach of critical thinking. Using a verifiable truth to argue against a traditional but unproven truth is seen as the work of a liberal intelligentsia betraying traditional values.

Consequently, we see protestors opposed to: (1) wearing face masks to mitigate the spread of the covid-19 pandemic because it’s just like the flu; or (2) reducing industrial pollution to avoid climate change because the climate is always changing: and (3) accepting verified election results because it’s impossible that a Democrat campaigning from a basement office could get more votes than a president drawing in tens of thousands to his rallies.

Umberto sees fascism as seeking to build a consensus by exploiting and exacerbating the natural fear of difference. In other words, it is an appeal against the intruders, those who are new to our community, like immigrants, or who have been here but are seen as different, like people of color.

Those divisions easily lead to separating the general population into either deserving or undeserving communities. This is an attitude that has historically appealed to a frustrated middle class, and I would add a working-class as well, particularly when suffering an economic crisis or feeling politically humiliated. The economic crisis of the working class has been unfolding for over forty years as its members’ wealth and standard of living has at best stagnated, if not shrunk. And, who likes to be called a deplorable or an un-woke, ignorant person?

Another feature of fascism that is relevant to today’s political environment is what Umberto describes as an obsession with a plotThat would be the conspiracy of the Deep State that predates President Trump and can be traced back to the John Birch Society that saw communists everywhere, including Republican President Dwight D. Eisenhower.

The conspiracy of communists still lives on for Georgia Republican Senator Kelly Loeffler. She has repeatedly referred to her Black Democratic opponent Rev. Raphael Warnock as “radical liberal” often adding socialist to the label and accusing him of supporting communism. To the average Georgian voter, being accused as a communist is as close as it gets to being a national enemy. The Trumpite movement has been described as populist, but Umberto sees fascism as promoting popular elitism. Those that belong to it are the best citizens, those that do not are considered the enemy, whether accused of being a communist, a radical, or a liberal.

The above features that Umberto identified as conditions that could lead to a fascist movement are certainly present. Many if not most of them have been in America for a long time. But we have not before now had a significant homegrown fascist movement dramatically threatening our democracy. I think that is largely due to the durability of our citizens’   belief in our democracy. While politicians will come and go, those we like and those we don’t, we believe that the electoral system will continue to function. That is why democracies are a threat to authoritarian leaders.

A fascist movement above all opposes democracy. When the authoritarians took over Russia, Germany, and Italy, the first thing they did was to either abolish their legislative bodies and their independent judicial system or take them over with ideologically acceptable functionaries. Trump’s ability to throw out a legitimate election is hindered by not having an organization large enough and strong enough to do either. He could personally intimidate only so many Republicans.

Still, the Republican Party is currently under his sway, particularly at the federal level. So much so that 126 House Republicans signed onto an amicus brief submitted in the Supreme Court case seeking to overturn Biden’s victory. The most conservative Supreme Court in the past seventy years unanimously rejected Trump’s appeal.

As I wrote before, he will still try to overturn the popular vote when the electoral votes must be counted by Congress. And he will fail, even though his White House advisor Stephen Miller told Fox News that “an alternative” group of electors was voting in the contested states and were sending “those results to Congress.”

Trump’s final loss will not stop him from fanning opposition against our electoral process. Are his actions contributing to an emerging fascist movement? There’s not a real movement, yet. At this point, there are no organized national paramilitary groups like the Free Corps that existed in Germany after WWI, but from the beginning of our nation’s founding, there has been an anti-democratic subculture.

However, at times a political personality emerges who taps a well of discontent that cares less about how a democracy should work.  Donald Trump did it brilliantly, according to former long-time Republican strategist, Rick Wilson, author of Running Against the DevilTrump exploited the grievance culture with messages that have powered past fascist movements, “Everyone is coming to get you.” and “You will be punished for not believing the right things.”

The task of defeating fascism requires addressing these messages through understanding the problems of all communities and working with them to arrive at workable and just solutions. That approach will take determination, persistence, and time in order to sustain our democracy. These are tasks that both parties must pursue.

Trump’s Last Chance – Pence Counts the Electoral Votes

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Written by Nick Licata | 11/25/2020


 

The last avenue available to Trump for winning the election is using the Electoral Count Act of 1877. This law puts Pence in the driver’s seat.

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EVAN VUCCI /  AP

Conservative journalist Geraldo Rivera told Fox News on Sunday, Nov. 22, that he had talked to President Donald Trump the previous week. He described Trump as a realist and a proud person who will finally concede once all the avenues to reversing the results of the election have been closed.

The catch, however, is that his vice president, Mike Pence, could keep one last avenue open for a Trump win. It would seemingly be legal and playing by the rules. It would also violate our democratic norms but, as I have written elsewhere, Trump’s politics discard them — to the detriment of our republic’s stability.

The last avenue available to Trump is using the Electoral Count Act of 1877. This law mandates how electoral votes are counted by Congress following a presidential election. It would allow Pence to throw the election to Trump. It would be the final ploy, as his two other strategies — court challenges and rogue Republican legislatures — are failing.

His first strategy was to get Biden’s vote count reduced through court rulings. So far, Trump’s lawsuits have failed to overturn Biden’s popular votes in any state. Trump has lost or withdrawn 22 challenges to the voting procedures in courts around the country. He has slowly retreated from pursuing legal cases in five swing states that Biden won: Nevada, Georgia, Michigan, Pennsylvania, and Wisconsin.

The remaining lawsuits are likely to face the same fate as the recently decided one that challenged Pennsylvania’s election results. There, the conservative District Judge Matthew Brann — who was a former chair of the county Republican Committee and active in the Federalist Society and the National Rifle Association — wrote in his decision that Trump’s campaign had used “strained legal arguments without merit and speculative accusations” in trying to negate the millions of Pennsylvania votes that had already been counted.

Trump’s second strategy was more convoluted and even less likely to succeed. He appealed to Republican-controlled state legislatures in key states to conclude that Biden’s majority popular vote in their state was a result of fraud and therefore not legitimate.

The Trump Campaign had hoped to replace Biden’s electors with ones supporting Trump. But Republicans in at least Michigan, Georgia, and Arizona legislatures, at this writing, have rejected Trump’s allegations of massive fraudulent voting. The leaders of these legislatures have all maintained that their elections were as fair as any in the past and that Biden’s win should be certified.

Nevertheless, these defeats have not deterred Trump from still claiming he won the election. On Monday, Nov 23, after he allowed Emily Murphy, head of the General Services Administration, to finally gave Biden access to the normal transition information that a president-elect would receive, he tweeted, “Our case STRONGLY continues, we will keep up the good fight, and I believe we will prevail!”

There is only one path left for Trump to win. It depends on the fact that Mike Pence will be the presiding officer of a joint session of both Congressional houses on Jan. 6, 2021.

His task under the Electoral Count Act is to announce the electors from each state that have been won by each presidential candidate. This procedure occurs in every presidential election and is usually a mere formality.

However, the Electoral Count Act describes how that count should proceed when there are competing slates of electors being sent to Congress from one or more states. The law has never really been tested.

Commentators throughout history have considered it “very confused, almost unintelligible,” a law that “invites misinterpretation,” its language “turgid and repetitious” and finally with central provisions that “seem contradictory.”

The best example of the act’s inability to deal with what could become a major constitutional fight is its ambiguity as to the solution when multiple slates of electors are sent from a state. In that case, the House and Senate are expected to vote separately on which slate to accept. But the two bodies may or may not agree on whether the slate certified by the governor should count or that no slate should count.

To make matters worse, the law states that in the joint session it would take only one representative and one senator to object to a state’s slate of electors. If the two bodies do not agree, it’s an open question whether the presiding officer (i.e., Pence) of the reconvened joint session could break the tie.

Other details of what is required are not spelled out in the law. For instance, if there is an objection, must there be an alternate slate of electors proposed, and who would have the standing to propose them? Could there simply be an objection asserting that no slate from a particular state be recognized due to an irreconcilable voting irregularity?

The parliamentarian could rule on these procedures, but that ruling could end up going to the Supreme Court, where conservatives hold a 6–3 majority.

The bottom line is that, if Trump truly does not care if the Republican leadership wishes him to concede defeat, he could still tie up the electoral counting process. All he needs are a couple of supporters within Congress to object to the elector slates in enough states to deny Biden 270 electoral votes.

Is this a far-fetched scenario? Perhaps, but then again, have we ever had an incumbent president string out an election when losing by such a large margin in both the popular and electoral votes? The answer is no. This would have been unthinkable. But here we are.

 

Does Esper’s Firing Imply Using the Insurrection Act?

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Written by Nick Licata | Originally published 11/15/2020


 

Trump’s firing of Secretary of Defense Mark Esper, two months before leaving the White House, may mean Trump is keeping a domestic military intervention in his playbook.

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Esper publicly rebuffed President Trump’s invocation of the Insurrection Act in June. Trump wanted to use that act to justify Esper sending active-duty military troops into cities experiencing violence associated with protests. Esper’s statement, “I do not support invoking the Insurrection Act,” was counter to the president’s wish. Trump told Fox News, “Look, it’s called an insurrection. We just send them in, and we do it very easy.”

At that time, Trump was referring to the massive urban unrest that was occurring over the police killings of several Black citizens, many of whom were unarmed. Those protests and the ancillary lootings have largely disappeared. So why would Esper be fired now?

Think about it for a moment. Every military commander-in-chief must look at all options for how to battle the enemy, even if those options are never pursued. President Trump is no exception. In this instance, as he has often implied if not said, the enemy is the Democratic Party. As of this writing, he has still refused to concede defeat on the electoral battlefield. He is employing both legal and political strategies to try to retain the presidency by denying former Vice President Joe Biden the more than 270 electoral votes needed for victory.

Trump understands that he lost the popular vote by even more millions of votes than Hillary Clinton beat him by. (The spread is over 5 million ballots and counting.) Many of those folks are concentrated in the Democratic-dominated urban areas that witnessed last summer’s street protests. Should Trump’s strategies result in overturning Biden’s legitimate victory, he is not blind to the high probability that there would be massive street protests in those cities. Most of all in Washington D.C. which was the greatest anti-Trump voting city with 95% plus voting against him.

Given public anger over Trump negating Biden’s election, the chances are that those urban gatherings would witness stores being looted, buildings set on fire, and other types of physical damage. Such destruction is almost always the result of a tiny contingent of street agitators who are more intent on the direct action of destroying everything they can lay their hands on rather than pursuing more abstract long-range reforms. But these instigators provide a platform for Trump and his allies to attack the democratically elected local representatives who pursue various responses to such chaos. Trump’s solution is to simply overrule local governments’ efforts with military force.

Esper’s resistance to using the Insurrection Act to employ our national military for domestic law enforcement in our cities does not spring from liberalism. He is no liberal. Esper served as chief of staff for the very conservative Heritage Foundation. He made clear to whom he feels a loyalty to when he responded to his firing with a letter to Trump saying, “I serve the country in deference to the Constitution, so I accept your decision to replace me.” Democratic Representative Elissa Slotkin, a former Pentagon official, said in a statement that Esper’s firing may signal that Trump “wants to take actions that he believes his secretary of defense would refuse to take.”

Expecting personal loyalty from the person in charge of the Pentagon appears to be critically important to Trump. Others, besides Esper, have apparently fallen short of that expectation. Esper’s replacement, Christopher C. Miller will be the fourth Secretary of Defense since Trump came into office. Miller is seen as a straightforward soldier who has served his country admirably. But he has no experience running a massive bureaucracy.
Professionals within the Defense Department have expressed doubt that he could stand up to any of the president’s requests.

Esper’s departure was not a one-off incident. It has been followed by the departure of the top Pentagon officials overseeing policy, intelligence, and the Defense Secretary’s staff. They have been replaced by people who are considered more loyal to Trump.

The new Undersecretary of Defense for policy is Anthony J. Tata. Trump nominated him for the position last summer, but the nomination was withdrawn when even some Republican senators considered him too extreme. As recently as 2018, Tata tweeted that Barack Obama was a “terrorist leader” who did more to harm the US “and help Islamic countries than any president in history.”

Trump will be unable to stage a coup to stay in power. If he doesn’t concede by December 14, which is the date the electors meet and vote, his probability of retaining the presidency approaches zero. His only hope is that the courts, in concert with Republican state legislatures, toss out Biden’s victory. And if they did, as I said, there would certainly be major demonstrations in many cities for overturning a legitimate vote.

Trump could again try to invoke the Insurrection Act to send in troops to quell riots. It would not be the first time a president has used the act for dealing with that situation. Since the end of FDR’s time in office, George H. W. Bush did it twice, Lyndon Johnson did it four times, and John F. Kennedy once.

However, since municipal officials and state governors have not requested such assistance under Trump, doing so now could still be seen as exceeding the Act’s intention. This is what Esper determined when he told the New York Times this past June that active-duty troops in a domestic law-enforcement role “should only be used as a matter of last resort and only in the most urgent and dire of situations.”

The easiest way to avoid these scenarios is for Trump to realize that he not only didn’t win the election but that the longer he fights the election result the more he damages his own standing and his chances of running again in 2024.

As I pointed out in my Oct 21 Citizenship Politics, Trump needs to once again be a media star of his own reality show. This time the show would be titled “Watch Former President Donald Trump Become the Future 2024 President.”

The Battle Will Come After the Voting is Over!

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Written by Nick Licata


Even if Biden had clearly won enough electoral votes after the November election, Trump’s attorneys are prepared to go nuclear. 

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Two recent Citizenship Politics columns dealt with the slowdown of mail-in ballots by USPS (past the deadline for them to be counted) and President Donald Trump’s strategies for capturing the electors.

The Trump Campaign will try to disqualify as many mail-in ballots as possible. Trump has personally implied through his public statements that armed civilians should monitor polling stations. Armed militias have already made statements that they will not allow the Democrats to steal the election from Trump. The public has no way of knowing the full scale of these efforts. But their intent is clearly to discourage people of color and other members of the Democrats’ base from voting.

Since a number of key states will not reach a final tally of mail-in ballots until the end of the week.  Trump may have a majority of the popular vote that’s been counted on election night — something known as the “red mirage.” Most mail-in votes will be added later in the week. Trump will say they are fraudulent and that counting them would be unlawful.

This situation drives Trump to say that the Supreme Court will decide the election. His strategy after Election Day will rely on (1) invalidating as many mail-in ballots as possible; (2) blocking enough states from certifying their electors that the election is thrown into the House of Representatives; and (3) asking the Supreme Court to rule on which slates of electors must be accepted.

If no candidate receives “a majority of the Whole number of Electors appointed” — as specified by the 12th Amendment — the House will vote on Jan. 6 among the top three candidates (probably Trump, Biden, and Libertarian Party candidate Jo Jorgensen). Each state delegation will get one vote (not one per representative). This one-state-one-vote rule is another advantage granted to rural states, in addition to those states having extra weight in the Electoral College.

At the present time, Republicans hold a majority of House delegations in 26 states. Democrats hold a majority of delegations in only 22 states, and two other states have tied delegations. If that is still true when the new House members meet on Jan. 6, the winner would be Donald Trump, 26–22, with 2 states tied and not counted.

If Biden earns a majority of electors based on each state’s popular vote, Trump’s strategy will be to hold up enough state counts in court so that a few states are barred from certifying any electors by Dec. 14, when the Electoral College convenes in state capitals.

For the sake of this discussion, let’s say Trump on Dec. 14 received 268 electoral votes while Biden received only 250. (Imagine that a state, like Pennsylvania, with 20 electoral votes was prevented by a court from appointing any electors for Biden.) Trump’s 268 electors would be fewer than 270 — an absolute majority of 538 — but his 268 would be 51.7% of the 518 electors who managed to be appointed by Dec. 14.

The Supreme Court would decide. Does “a majority of the Whole number of Electors appointed” mean the number who were legally appointed by Dec. 14 or does it mean the number who could have been appointed? With Amy Coney Barrett on the court, the conservative majority could vote 6–3 that the phrase means the number who were legally appointed by Dec. 14. Of course, they would justify their decision by saying that they took the wording of the constitution literally, i.e. they were not acting as activist judges. Trump would win the Electoral College, 268–250, or 51.7%. Even if Chief Justice John Roberts joined the liberals to make the decision only 5–4, Trump would win.

The 26 House delegations that have a majority of Republican representatives would vote on Jan. 6 to follow the Supreme Court’s ruling. Trump would be re-elected, no matter how small his popular vote was.

The voting on Jan. 6 will involve the newly elected members of Congress, not the old lame-duck members. Could Democrats flip enough US House seats on Nov. 3 to control 26 state delegations on Jan. 6?

The answer is almost certainly, “No.”

There are currently only four US states that could change from a US House delegation that is Republican-majority or tied to a delegation that is Democratic-majority or tied (assuming one seat in each state flips from R to D). Pennsylvania and Michigan currently have tied delegations. Florida has a one-seat majority for the Republicans, and Wisconsin has a two-seat Republican majority:

• Pennsylvania’s delegation is currently tied, with 9 R’s and 9 D’s. As of Oct. 21, the nonpartisan Cook Political Report rates only one seat in Pennsylvania as a toss-up: Rep. Scott Perry’s seat in Congressional District 10.

• Michigan’s delegation is currently tied, with 7 R’s and 7 D’s. Cook rates only one seat in Michigan as a toss-up: Rep. Justin Amash’s seat in CD 3. (Note: Amash switched from Republican to Libertarian earlier this year, but he is not running for re-election. The seat has been held by a Republican, including Amash, for more than a decade.)

• Florida’s delegation is currently majority-Republican, 14 R’s, and 13 D’s. Cook does not rate any seats in Florida as toss-ups. Therefore, none of the seats are likely to change parties.

• Wisconsin’s delegation is currently majority-Republican, 5 R’s and 3 D’s. Cook does not rate any seats in Wisconsin as toss-ups. Therefore, none of the seats are likely to change parties.

Even if the D’s somehow flipped one seat in three delegations — Pennsylvania, Michigan, and Florida — 25 states would then vote for Trump/Pence and 25 would vote for Biden/Harris. This would be a tie, producing no winner.

In that case, the Senate would cast one vote per senator (not per state) for the position of vice president. If Republicans are still a majority of senators on Jan. 6, the Senate would vote for Trump to become vice president. But Trump would immediately become president, because the office of the presidency would be vacant, due to the House’s tie vote. However, if the Senate did flip over to a 51–49 Democratic majority after the election — which would require a net gain of four seats — the new senators would be voting, and Biden would win.

As if all of this weren’t already too mind-boggling, the president of the Senate on Jan. 6 will still be Mike Pence, since his term doesn’t expire until Jan. 20. This provides Trump an opportunity to have his vice-president determine how the Senate rules will determine the electors for selecting the next vice-president.

Should Republicans retain control of the Senate, the Democratic senators could conceivably boycott the Senate vote, thereby depriving the body of the two-thirds quorum that is required by the 12th Amendment. If the House were tied, and the Senate had no quorum, neither the House nor the Senate would legally have made any decision. Most likely the Republican Senators would meet and vote anyway, claiming victory. The Supreme Court could then rule on which candidate had enough electoral votes to win.

Even if Biden had clearly won enough electoral votes after the November election, Trump’s attorneys are prepared to go nuclear with one last tactic. Before the House can formally vote to accept the Electoral College votes in January, Republican-controlled legislatures could convene November special sessions in states where he lost the popular vote. The R legislators could declare that there was “massive fraud” in a state’s mail-in ballots — for example, millions were printed and mailed by Ukraine — and appoint the legislature’s own slate of Trump electors. This is arguably permitted under the US Constitution, which provides that electors shall be appointed “in such Manner as the Legislature thereof may direct.” Changing the manner of elector selection after the votes have been counted might violate existing state laws, but guess who would decide on this — the Supreme Court.

Trump might lose the popular vote in five states rated “toss-up” by 270toWin’s 2020 Consensus that happen to have Republican legislatures and governors. They are Florida (29 electoral votes), Ohio (18), Georgia (16), Arizona (11), and Iowa (6). If all five legislatures acted, a total of 80 electoral votes would shift from Biden to Trump. That would be a highly controversial move. It would also require a lot of coordination among state Republican leaders. Nevertheless, it is 2020, and many unbelievable things have happened already.

Four other toss-up states have R-majority legislatures but Democratic governors. They are Pennsylvania (20), Michigan (16), North Carolina (15), and Wisconsin (10). Under the US Code (3 USC §5), governors may submit their own slate of electors by Dec. 8, 2020, if electors in a state are contested. A Democratic governor’s slate would compete with a Republican legislature’s slate when the US House votes on Jan. 6 whether to accept each state’s electors.

If Republican legislatures “went rogue” and appointed their own electors, could states with Democratic legislatures and governors play “tit-for-tat, replacing Trump electors with Biden electors? Not really, because the Democrats only control Maine that has both a Democratic-controlled legislature and a Democratic governor.

The Supreme Court would decide which slates were the legitimate ones. The conservative majority of the court could side with the legislatures’ slates. The court could also bar the US House from considering competing slates that were based on the popular vote. Trump would win a majority of electors.

With the slew of attorneys that are now working for the Trump Campaign and the Republican National Committee, the above possibilities are serious legal mechanisms that Republicans may fully intend to use. On the other hand, neither strategy would work if Biden won such a huge majority in the Electoral College that even switching the electors of several states from D to R would not get Trump re-elected.

For the good of the nation, the path to a peaceful and normal transition to a new presidency would best be secured by a Biden landslide. That would not be necessary if Donald Trump had not repeatedly claimed that fraud and cheating were the only possible reasons why he would lose.

Hold on tight for the battle that will begin on Nov. 4.

Trump’s Plan for Winning the Election in 2020 or Even 2024!

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Written by Nick Licata


 

Trump began months ago executing a seven-step plan to win or at least upset the apple cart. Here is how it is playing out.

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Donald Trump plays politics as a game to win. And he never, never admits defeat. He is always victorious. He whips his mask off on the White House balcony to show that he has conquered the coronavirus pandemic. His supporters love it. Trump is the ultimate showman.
Nevertheless, the Republican party realizes that Trump may lose his re-election. Consequently, the R’s are doing some really hard work. They are registering more new voters than the Democrats are in key swing states. They also have a massive door-belling campaign to get their supporters out.
Meanwhile, the Democrats are eschewing that practice so as to not spread the pandemic. Instead, they are relying on personal phone calls and social media. Studies have shown that the Republican’s in-person contact is about three times more effective than the efforts that the Democrats are pursuing.
For Trump, that is not enough. He continues to ignore democratic norms and pushes extreme positions. At a campaign rally 12 days before Election Day, Trump called for locking up his opponent, former V.P. Joe Biden, his son Hunter and tossing Hillary Clinton into the clink for good measure. His daughter-in-law Lara Trump excuses her father-in-law’s encouraging rally attendees to chant “lock her up” as just him “having fun.”
But more important than merely inciting his supporters, Trump has a clear plan to depress the Democratic vote, to seed doubt about the election’s validity, and to ultimately force a close election to be decided by the Supreme Court or other means. If all that fails to secure a win for Trump, then what happens? Trump posed that question out loud at a recent rally, “If I lose, what do I do?”
Well, he is not going to stage a military coup. But he will call the election a sham. And be prepared to have him declare that he is a presidential candidate for the 2024 election. It is his only way of retaining his media-star stature as the Defender of the People against the Deep State. And he’ll need that mantle to help him raise funds needed to fight off the upcoming civil and criminal cases he will be facing due to his prior business practices.
In the meantime, Trump began months ago executing a seven-step plan to win or at least upset the apple cart. The results could literally see the streets filled with angry Trump supporters believing, as Trump said, the election was rigged against him. Here is how it is playing out.

Trump’s seven-step election strategy

First Step – Stop Democrats from casting their votes 

Democrats refer to this effort as voter suppression. Republicans see it as keeping our votes safe from fraud. Halting or reducing mail-in balloting is the major Republican strategy. That could affect the ability of more than a third of registered voters who said they will vote by mail this fall, according to the latest Economist/YouGov Poll. That poll also found that those voting by mail this year are more than twice as likely to be voting for Biden as for Trump.
Trump has claimed on Twitter that “mail-in ballots will lead to massive electoral fraud and a rigged 2020 election.” However, MIT found that this was not true by analyzing data collected by the very conservative Heritage Foundation. MIT’s conclusion is that over 20 years, there has been only an average of three cases per state. That works out to about 0.00006 percent of the total votes that were cast.
To address the perceived danger of voting fraud, Republican governors have set up hurdles that include the ballots lack a signature or a witness, or that the ballots did not arrive by an arbitrary time.

Second Step – Sow doubts about the validity of the election results

Trump openly questions our electoral process. He has insisted without evidence that the 2020 election will be rigged against him. At a campaign stop in Oshkosh, Wisconsin, he told his supporters, “The only way we’re going to lose this election is if this election is rigged.”
The Russian state media and its proxy websites are also bolstering that perception, according to a Department of Homeland Security intelligence bulletin. The Russian message is that the vote-by-mail processes and alleged lack of transparency are creating vast opportunities for voter fraud.
To further instill distrust in the election process he is promoting an image of Democrats wanting to destroy our democracy. He has turned to call Democrats fascists. He accused former V.P. Joe Biden of looking to “replace American freedom with left-wing fascism.”
His basic message emboldens far-right movements such as QAnon. Trump claims not to know about the group, which says that Washington harbors Satanists who are protected by a “deep state” that Trump is fighting against. Trump has not denounced the group, instead of calling its followers “people that love our country.”

Third Step – Create chaos in the election process

Creating chaos is not an articulated Trump strategy, but chaos will likely result from his actions. For instance, in front of a TV audience of millions, Trump made a debate-stage call-out for volunteers to stand to watch at voting polls.
The Republican Party has promised to recruit 50,000 volunteers in 15 contested states to monitor polling places. According to an Atlantic article, they will be ready to challenge voters they deem suspicious-looking. Trump campaign spokeswoman, Thea McDonald, guarantees that “all Democrat rule-breaking is called out. And if fouls are called, the Trump campaign will go to court to enforce the laws.”
A number of states are open carry states — meaning that individuals are allowed to carry an unconcealed weapon in public. Virginia is such a state. In the 2016 election, a Trump supporter stood outside a Loudoun County polling place with a handgun in his waistband, offering sample Republican ballots to voters. Election officials said the man broke no laws.
Trump campaign officials say that they will not intimidate voters and that their volunteers will be trained. But who will be training them? In most states, poll monitors must be registered with state authorities. With Trump seeding claims that the election is going to be rigged, suspicions are running high among his supporters. What happens if one of them walks off the street and demanding to be a poll watcher, without any prior registration or non-partisan training and is refused by a poll worker. Given Trump’s inciting distrust in the electoral system, it’s not likely going to be a friendly chat.
Finally, Trump has advised his supporters on Twitter to vote twice.  He said, “Go to your polling place to see whether or not your mail-in vote has been tabulated (counted). If it has you will not be able to vote & the mail-in system worked properly. If it has not been counted, VOTE (which is a citizen’s right to do).” It is highly likely that official poll workers will not have that data available. Some states, such as Wisconsin and Florida, do not begin counting any ballots until polls close on Election Day. Some Trump voters will vote twice and if caught, their vote will be tossed. If that happens, expect Trump’s attorneys to file a lawsuit.

Fourth Step – Have the House choose the President

The House of Representatives chooses the next president if neither presidential candidate receives the 270 electoral votes needed to win, or if some legal dispute that is not clearly decided by the Supreme Court prevents determining a clear winner.
It has only happened three times in our country’s past, and all were before 1900. However, it could happen again. University of Virginia’s Center for Politics noted that if Trump won all the states currently rated as a toss-up, it would result in a tie.
If the election were thrown into the House, each state delegation would have a single vote, regardless of how many representatives a state may have. Republicans currently have a majority in 26 state delegations. Democrats are a minority with 22 delegations. However, the House delegates casting the votes for each state would be those elected into office this November, not those currently sitting in the House. 2020 House elections could be even more important than the Senate races!
It should be noted also that the 12th Amendment requires a quorum of two-thirds of the states being present in the House in order for the vote to be taken. If the Democrats’ 22 delegations didn’t attend, the House could not vote. In that case, the Senate decides who becomes vice president, with one vote per senator.
These scenarios are so steeped in procedural minutia, that it is apparent why Trump has so far dismissed going to a House vote. It would have to be a last-ditch effort. As long as Judge Amy Coney Barrett is voted onto the Supreme Court, there is no apparent need for him to promote a House vote as a viable plan.

Fifth Step – Reassign a state’s electoral delegates from Biden to Trump

The most precarious strategy for Trump to pursue would be to have Republican legislators or other elected officials in several swing states appoint Trump-friendly electors to the Electoral College. Barton Gellman’s article in the Atlantic explores this option in detail. He notes that states are not constitutionally required to appoint electors based on the popular vote. Trump’s campaign could convince state legislators that the popular vote was fraudulent, justifying the legislature itself appointing its own slate of electors.
The Atlantic notes that there are ways to keep Republican legislators from appointing delegates to Trump if he did not win a state’s popular vote. Democratic governors or secretaries of state may nullify the legislators’ actions by certifying the popular vote. Alternatively, a slate of Democratic electors could band together and challenge the plan by certifying their own legitimacy.
In the six swing states that have Republican-majority legislatures, both Florida and Arizona have Republican governors. To add a level of complexity, the Arizona secretary of state, who oversees the state’s elections, is a Democrat. Those internal state divisions could result in two different slates of electoral delegates being submitted to Congress for final approval. That could put pressure on the Supreme Court to determine which list would be accepted.
This situation brings us to the final step in Trump’s plan to secure the election: give the deciding power to the Supreme Court. Which will have six conservative justices, three of whom he has appointed.

Sixth Step – Clutter the courts with filings to force a Supreme Court decision

All of the above steps open the door for the election results in battleground states to be challenged in the courts. As of a month ago, Trump and the Republican National Committee already have legal teams involved in more than 40 lawsuits. The number is growing rapidly. The Democrats are playing catch-up, litigating 30-plus lawsuits in at least 17 states.
Politico reports that “Republicans are preparing prewritten legal pleadings that can be hurried to the courthouse the day after the election, as wrangling begins over close results and a crush of mail-in ballots.” It is clear that the authenticity of mail-in ballots and the deadlines for mail-in ballots to be received and counted will be at the heart of most Republican challenges.
Conflicting interpretations of applying the Constitution to the election procedures in various states could extend the dispute all the way to Inauguration Day. That period of time could be shortened if the Supreme Court intervened. It is likely that with so many lawsuits there will be multiple court jurisdictions making conflicting decisions.
While the Supreme Court often refers to decisions back to the local courts to decide on an issue, that won’t happen in this instance. The justices will have to make a decision.
Or perhaps they could issue a decision that punts the actual final decision to the House of Representatives by claiming that the Constitution gives the authority to select a president to them. That might be how strict “constitutionalists,” such as judge Amy Coney Barrett and fellow justices Clarence Thomas and Neil Gorsuch, might decide. If the court made a decision after the elections for U.S. Representatives are certified, the winner would be apparent by which party controls the most state delegation.
One final note on how the Supreme Court might be influenced by Judge Barrett. She worked on the Bush v. Gore case in 2000, helping Bush’s legal team retrieve and complete thousands of absentee ballot request forms on which voter-registration information was missing. The Republicans back then were trying to keep voters from being disenfranchised. Would that prior court decision provide a precedent for Barrett to determine that ballots with minor procedural elements missing should be counted? The Trump attorneys are expected to oppose counting them.

Seventh Step – Election lost, and a candidate is reborn

If there is a landslide vote for Biden, Trump may be forced to recognize that he has no chance of overturning enough votes to secure the election. More importantly, the Republicans may come to that conclusion as well.  Other scenarios might also lead to the same conclusion, such as a House vote or a Supreme Court decision.
Finally, if none of those events occur, he could contest the election right up until the inauguration. That might just be a bridge too far for a number of Republicans in congress to cross. They could decide it’s time to save the party rather than Trump.
However, Trump could turn his final act in this play into the start of another performance. If he were to announce that he would be a presidential candidate in 2024, he would certainly capture national headlines. He could follow in the steps of Grover Cleveland and be the second president in history to serve two non-consecutive terms. If he won in 2024, he would take office at the age of 78, which is how old Joe Biden will be if he wins and takes office next year.
Most importantly, it would allow Trump to use his greatest resource. No, it’s not his money. It’s his die-hard base of supporters. Pew Research Center estimated that one-in-five adult Twitter users in the U.S. follow Trump’s personal account. He could use them as leverage, not against the Democrats but in opposition to the Republican “establishment” if they stray from Trump’s policies. For those that do, he could threaten to support a primary challenger.
What would he want from the remaining Congressional Republicans? Help with media coverage and with funds to fight off the impending civil lawsuits and criminal charges that he has postponed since gaining high office. No longer being President exposes his business empire to these coming legal battles. Without the Justice Department protecting him he may find it leading the charge to force him, his institutions, and associates to release incriminating documents.
If he can retain his following, Trump can once again be a media star of his own reality show — former President becoming the future President. Stay tuned and watch how he does it!

Democrats have been a minority on the Supreme Court since 1970

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Written by Nick Licata | Originally published 10/11/20


 

The Senate Judiciary Committee begins hearings Monday, Oct. 12, on the appointment of Judge Amy Coney Barrett to the Supreme Court. Her seat on the court will solidify its already very conservative majority.

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Photo by Rachel Cooper, “The “Authority of Law” marble statue by sculptor James Earle Fraser on the steps of the Supreme Court Building.

National polls have shown that most citizens do not wish her, or anyone, to be appointed until after the presidential election. A few Democrats have argued that if Barrett is appointed, seats should be added to the Supreme Court to balance its philosophical views.

President Donald Trump and Vice President Mike Pence both asked their Democratic opponents in the recent debates whether they would pack the court, presumably with liberals. Both former Vice President Joe Biden and Sen. Kamala Harris danced around the issue, never answering the question. They should have told the truth: The court is already packed — with conservatives.

In fact, in every year since 1970, the majority of Supreme Court justices have been Republican appointees. Since the beginning of Chief Justice Warren Burger’s court until the death of Justice Ruth B. Ginsberg, there have been 17 Republican appointed-justices and 8 Democratic appointed-justices sitting on the Supreme Court.

 At no time was there a majority of Democratic justices on the court to write its majority decision. By going to the web link for each of the last three Chief Justices, you can see those numbers.

In addition, the last four Supreme Court chief justices have been politically active Republicans appointed by Republican presidents:

• Chief Justice Earl Warren (1953 to 1969), was the Republican governor of California and Thomas Dewey’s vice-presidential running mate.
• Chief Justice Warren Burger (1969 to 1986), played a crucial role at the 1952 Republican National Convention to get Dwight D. Eisenhower the presidential nomination.
• Chief Justice William Rehnquist (1986 to 2005), was a legal advisor to Republican presidential nominee Barry Goldwater.
• Chief Justice John Roberts (2005 to current) served in Ronald Reagan’s and George H. W. Bush’s administrations in the Office of the White House Counsel.

You couldn’t select more-partisan chief justices.

When Trump warns the voters that Democrats would “pack” the court with liberal judges, he is basically saying he’s against the court sustaining liberal laws. But which ones? The three Republican-controlled Supreme Courts under Burger, Rehnquist, and Roberts have decided in favor of some major liberal issues.

Burger’s court with its Roe v. Wade decision recognized a broad right to privacy that prohibited states from banning abortions. They also unanimously rejected Nixon’s invocation of executive privilege in the wake of the Watergate scandal. Trump and some of the current Supreme Court justices have indicated they would not have supported those decisions.

President Ronald Reagan’s appointment of William Rehnquist as Chief Justice was approved with divided Democratic support in the Senate, despite his role as the most conservative member of the Burger Court. Times were different then. Qualifications played a greater role than ideology. The Rehnquist Court was more conservative than Burger’s, as evidenced by its decisions limiting access to abortion (while still allowing it). On the liberal side, they overturned a prior court decision by ruling that intimate consensual sexual conduct was protected under the Fourteenth Amendment.

John Roberts’ nomination as Chief Justice was approved by the full Senate, 78-22, with half of the Democrats voting in favor. It was considered a narrow vote at the time, but subsequent confirmation votes make it look like a landslide. The New York Times describes the Roberts Court as the most conservative since the 1940s. Nevertheless, a few liberal bills have received majority decisions.

The most controversial ruling upheld the constitutionality of the Affordable Care Act. Engendering more heat, the court also proclaimed that same-sex couples had a right to marry and that businesses cannot discriminate against LGBT people in matters of employment.

However, conservative decisions made thus far by the Roberts Court—and by prior courts under the two former chief justices—far outweigh the liberal ones. Often the more-liberal decisions were reached on a 5-to-4 vote. The addition of judge Barrett would make the Roberts Court even more rigid than it has been to date. So, it is inevitable that the court will interpret laws from the most conservative point of view possible. Even the few liberal remnants from prior conservative court decisions will be subject to further truncating.

How did this situation arise? There are a number of theories. One of the more meticulous explanations is provided by Prof. Nancy MacLean in her book Democracy in Chains. It details the influence of billionaires, like the Koch brothers, who have shaped our judicial system to their liking. They fund networks of organizations to oppose federal interventions that would place commonwealth concerns above individual liberties. Hence, they support states’ rights and legal philosophies that do not interpret laws in the context of modern social and economic problems. Justices that treat the constitution as a tool to navigate our current conditions are labeled as “activist judges.”

Quinta Jurecic and Susan Hennessey of The Lawfare Institute make an additional point. Writing in The Atlantic, they accuse Republicans of timing voluntary retirements of Republican-appointed justices “to effectively bequeath seats to their political party.” Sounds like a cool gimmick, but the pattern is not readily apparent. Two of the last three Republican-appointed justices that retired voluntarily were replaced by liberal Democrats. The exception was Samuel Alioto replacing Sandra Day O’Connor in 2006.

The current composition of the Supreme Court derives from how the Republican Party has slowly adopted an ideological litmus test to appointing and confirming justices. This did not occur overnight. Nominees from both parties had generally reflected a liberal or conservative approach. But within that approach, there was much variation. Franklin D. Roosevelt appointed a variety of justices. Hugo Black advocated a textualist reading of the United States Constitution, while Felix Frankfurter advocated judicial restraint in the judgments of the court. Both approaches are widely supported by Republicans.

Republican presidents, likewise, used to appoint people who were within the Republican fold but were broad-minded justices first. As a result, Chief Justice Earl Warren arranged a unanimous vote for the 1954 Brown v. Board of Education decision, which declared that segregation in public schools was unconstitutional. Right-wing reactionaries began an “Impeach Earl Warren” campaign over his refusal to support segregation.

Accusing some Democrats of wanting to enlarge the court with liberals is true. Yes, they would like to follow in the footsteps of the conservatives in shaping the courts more to their liking. But at this moment in history, if Democrats did expand the court, the result is most likely going to be similar to what FDR experienced. Even with the Democrats controlling both Congressional houses by huge majorities, and FDR being a popular president, the public frowned on making such a jolting structural change.

Republicans have been able to reshape the philosophical orientation of our federal courts because the organizing effort has been underway for decades.
That doesn’t mean Democrats cannot still make changes. They should recognize that they need to learn from the Republicans, who provide an intellectual rationale for conservative justices. Liberal justices need one as well. A rationale that is open, not closed — one that can provide guidance, without requiring loyalty to any one creed.

Democrats believe their philosophy will help Americans across the political, economic, and racial spectrums. They must not apologize for embracing this.

The Republicans embrace conservatism. But Democrats fear embracing liberalism because the very word has been so consistently attacked by the Republicans. Democrats seem to be searching for another label, such as progressive, social democrat, populist, or whatever. The label doesn’t matter so much as the ability to explain it in simple terms. Democrats must believe in it and have the courage to openly present and defend it.

 

Could the Covid-19 virus Delay Barrett’s Confirmation?

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Written by Nick Licata | Originally published 10/4/20


 

The push for the Senate’s confirmation of Supreme Court nominee Amy Coney Barrett may be impacted by the pandemic.

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Virus-infected Sen. Tillis meeting with Judge Barrett

Sen. Mitch McConnell has delayed the convening of the full Senate until Oct. 19 because three Republican Senators have tested positive for the Covid-19 virus. But he is pushing ahead with Barrett’s confirmation hearing scheduled for Oct. 12.
Is it now possible that the Covid-19 virus could do what the Democrats can’t do—fatally delay the nomination of President Trump’s Supreme Court nominee Amy Coney Barrett?

It depends. Let’s see what it would take.

SCENARIO ONE

For the Republicans to confirm Barrett as scheduled, she would have to test negative on the Covid-19 virus up to and during Senate Judicial Committee hearings. If she tested positive, she could still be interviewed remotely. However, the optics of her not being present in the Senate committee room and just appearing on a screen is not good for the Republicans. It would provide ammunition to the Democrats’ charge that this is an unnecessarily rushed endeavor to bypass public input. Already, over 60% of those polled agree with this charge.

It’s unlikely that Barrett will test positive. According to Washington Post sources, she had already tested positive last summer. Neither she nor the White House, however, have released a statement confirming that.

Since the time she recovered from her infection—if, in fact, she had one—she’s regularly tested as negative. For her to test positive again would mean she’s either been reinfected or the first test was a false positive. Both conditions are statistically unlikely. Still, Barrett has been on the Hill at least three times during October’s first week, meeting with roughly 30 senators in one-on-one meetings to discuss her nomination. If she wasn’t wearing a mask for those closed room meetings, she could have been infected.

Also, at the Rose Garden reception for her nomination on Sat., Sept. 26, Barrett (along with the majority of attendees) was not masked most of the time nor practicing social distancing. She greeted many attendees in a reception line. At least six of the participants have since tested positive, including Republican Senators Mike Lee of Utah and Thom Tillis of North Carolina.

SCENARIO TWO

Both senators sit on the Judiciary Committee, which is scheduled to begin hearings on the Barrett nomination on Oct. 12. Republican staff has said they expect the committee’s opening statements, questions, and testimony from outside witnesses to last three or four days.

The public health agency CDC recommends that someone who has tested positive and is asymptomatic should isolate for 10 days after their symptoms began. The agency recommends a more stringent 14-day quarantine period for those who have been in contact with an infected person but do not have confirmed infections.

If those guidelines are applied, Lee and Tillis would isolate for 10 days from Oct. 2. That was the date they announced they were infected. Sen. Lindsey Graham, the chair of the Judiciary Committee, said that they would be able to attend the committee hearing on Barrett’s confirmation because it starts ten days later on the 12th.

It’s lucky for them they’re not professional baseball players. The baseball leagues require players to receive two tests showing they’re negative after their 10-day period of isolation. There is apparently no such concern for infecting fellow elected officials.

Senators who’ve been in contact with the infected Lee and Tillis may choose to adhere to the 14-day quarantine period. If they are on the Judiciary Committee, they would be limited to participating virtually.

Senate Minority Leader Charles E. Schumer and Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, have asked to delay Barrett’s hearing. They believe a virtual committee meeting will set a dangerous precedent for the Senate. As expected, the Republicans have rebuffed their request.

But here’s the unknown factor: The actual committee vote is scheduled for the Judiciary Committee on the 22nd. By that date, if two more Republicans on the committee are infected and quarantined, the committee could not vote out a majority recommendation to confirm, assuming that all the Democrats on the committee vote against it.

That might not stop a full Senate vote, but it could delay such a vote past Election Day. Should Joe Biden be confirmed as the winner of the election before the final vote is taken on Barrett’s confirmation, increased public pressure not to confirm she might persuade some Republicans to change their minds.

Since Trump intends to challenge Biden’s election all the way up to the Supreme Court, a delayed SCOTUS decision might push a confirmation vote into the next Congressional session.

SCENARIO THREE

There’s one other Covid-19 scenario:  If both parties are hit with Covid-19 absences, the Republicans could be denied a full Senate quorum to confirm Barrett. Senate rules currently do not allow for remote voting.

An analysis by the nonpartisan Congressional Research Service explains how quorum works in the Senate. The Constitution states that “a Majority of each [House] shall constitute a quorum to do business….” The Senate presumes that it is complying with this requirement until a Senator “suggests the absence of a quorum.” The Senate cannot resume its business until a majority of senators respond to a quorum call by the Senate Clerk. If a quorum fails to be reached, the Senate adjourns or sends out the sergeant of arms to secure the attendance of enough senators to constitute a quorum.

Now here’s a scenario that could work for the Democrats stopping Barrett’s confirmation. It would require that at least three Republican senators are absent. That would reduce their number to 50 from 53 Republicans being present. That may not be too much of a stretch. Forty-eight senators are over the age of 65, which puts them into the high-risk category of becoming ill or succumbing to the Covid-19 virus.

If the Republicans have only 50 members present, and all but one Democrat is absent, the quorum rule could come into play. The one Democrat on the Senate floor would ask for a roll call to determine if there are 51 senators present. The reason for the need of that one Democrat is that if there were none present, then it is not expected that any Republican would ask for a quorum. And without the ask, the Senate could proceed to conduct its business. Once the request is made, the Democrat could leave, not answering the call. Do the math and see if they then have a quorum. The vice president only votes to break a tie, not to create a quorum.

All of the above conditions are dependent on at least one “if.” But “ifs” do happen. Who would have expected that President Trump would have contracted the virus so close to the election? So, preparing for “if” situations, may not be a fantasy but preparation for a possible opportunity.

RBG’s replacement will cut Civil Rights for Women

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Written by Nick Licata | Originally published 9/27/20


 

Senate Republicans discard their principles and rally religious anti-abortion voters to re-elect them.

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In Republicans’ rush to appoint a new justice to the Supreme Court, the first casualty was their prior commitment to honor the will of the people.

Both Senator Mitch McConnell (KY), who is the majority leader in charge of the Senate calendar, and Lindsey Graham (SC), the chair of the Senate Judiciary Committee, which handles Supreme Court nominees, embraced hypocrisy. The two old pros stopped the Senate from even holding a hearing on President Obama’s court appointee, Garland Merrick, when the nomination was eight months before a presidential election.

In effect, McConnell and Graham undermined the trust that citizens should have that Congress will govern fairly and honorably. That was their first blow to a stable, democratic republic. The second blow will be landed if the Trump nominee sits on the Supreme Court. Why? Because our nation will move one more step away from being a nation of rational, secular laws, toward a regime ruled by the constraints of religious beliefs.

The Republicans’ motivation may not be so much adherence to a moral doctrine as a personal interest in maintaining political power. They’ve watched how Donald Trump has obtained and used power. Now, to be sure, Trump isn’t a religious person. Then again, neither was Elmer Gantry. But they both used the force of organized religion to get what they wanted. In Trump’s case, it is winning votes and elections. Particularly as he is promising to end abortions.

A core of religious voters, consolidated within the evangelical movement and the Catholic Church, believes that women are sinners if they have an abortion. God will punish them. But the persuasive force of religion is not enough to actually stop women from controlling their own bodies. These churchgoers need the power of government to stop doctors from safely conducting abortions.

If the religious right can impose laws that stop or constrain that activity, many women will go to non-professional abortionists, who operate in garages or basements. As was often the case in the 1950s, many will also wind up in an emergency room for botched abortions. Some politicians champion that era as the best time for all Americans. That is a reactionary belief. It turns the clock way back, unlike conservatives who just don’t want it to go forward.

Republicans lead the push to place an anti-abortionist on the Supreme Court

Let’s examine Graham and McConnell’s re-election races.

Graham easily won his last three Senate races by double-digit margins. He had originally been considered a moderate conservative by both Democrats and Republicans. Initially, he called Donald Trump a “race-baiting xenophobic bigot,” but now refers him to as “my new best friend.” That may because Trump won South Carolina by 14% over Hillary Clinton in 2016.

Currently, Trump leads Joe Biden by 6% among likely voters in the state. Meanwhile, Graham is statistically tied with his Democratic challenger, Jaime Harrison in the latest polls. Just 3% of voters say they are unsure who they’re going to vote for on Nov. 3. Graham is borrowing scare tactics from Trump to either pull out more of his base or pull that thin slice of undecideds over to him.

Using Trumpian hyperbole, Graham calls Harrison a radical, when the Democrat is in fact a moderate. Fanning the flames of fear, Graham said that if the Democratic Party controls Congress and the Presidency, “They’ll pack the Supreme Court.” However, with 15 of the last 19 justices having been appointed by Republicans, we actually have a court that’s been packed with Republican appointees.

Both Graham and Trump need to pull out their strongest base of supporters: the white evangelicals. Trump received 82% of this group’s vote in 2016, and that same percentage still support him today. Evangelicals make up 35% of South Carolina’s population. They are the most anti-abortion of all major religious faiths. Sixty-three percent believe that abortion should be illegal. Getting a committed jurist on the Supreme Court who holds that belief could only help Graham with those voters.

McConnell is not in as tight a race as Graham. A poll in the summer showed him ahead of his Democratic opponent, former Marine fighter pilot Amy McGrath, by only a couple of percentage points. But the most recent poll this month shows him leading by 15 points. McConnell has hit McGrath with TV ads claiming that she supports abortion in the ninth month of pregnancy. This twists something McGrath did say: “I don’t think the government should be involved in deciding on a woman’s body.”

Those who demand anti-abortion laws often interpret a response like McGrath’s as supporting late-term abortions. The most recent Centers for Disease Control and Prevention report found that only 1.2% of abortions in the U.S. were performed at or after 21 weeks of pregnancy. To counter McConnell’s accusation, McGrath made clear that she is “opposed to late-term abortions (except when it comes to issues of the life of the mother).”

Ardent anti-abortion evangelicals make up 49% of Kentucky’s population. So McConnell’s ads may soon be presenting him as the person who confirmed enough reactionary justices to the Supreme Court to finally revoke if not practically stop access to abortions.

Mitt Romney (R-UT), who is at times a Trump critic and was called a moderate conservative, showed that he too wants to get back to the abortion prohibitions of the ’50s. Although he supported Roe v. Wade in 1994, he’s moved since his first presidential bid in 2007 to believing “we should overturn Roe v. Wade.” He once said he would be “delighted” to sign a bill as president that would outlaw abortion. Although Utah has relatively few evangelicals, 62% of Utah’sresidents are Mormons. They are even more anti-abortion than evangelicals, with 70% of Mormons opposed to abortion. Romeny’s term is not up this November, but supporting Trump’s nominee will certainly help him win re-election.

Many Republican Senators are from states with enough evangelicals to swing almost any statewide election — if they come out to vote. According to the Cook Political Report, two Senate Republicans are in toss-up elections in states with high percentages of evangelicals: Sen. Joni Ernst in Iowa (28%) and Sen. Thom Tillis in North Carolina (35%). Both of them joined Mitchell and Graham in chucking their previous statements to oppose appointing a new justice in a presidential election year. Now they want the new Supreme Court vacancy filled before the Nov. 3 election. They are counting votes and they know whose votes to get out in their state.

Two senators in particular, whom The Hill describes as “two rising GOP stars with White House aspirations” are competing to be the leading executioner of the Roe v. Wade decision. Senator Josh Hawley (R-Mo.) wants explicit evidence from a nominee that Roe v. Wade was just plain wrong. Sen. Tom Cotton (R-Ark.) just wants to get rid of the decision. Both come from states with a significant evangelical voter base. Thirty-six percent of Missouri residents are evangelicals. In Arkansas, the percentage is 46%. Cotton is seen as a solid winner for his re-election, and Hawley is not up this fall. But if they do aspire to the White House, Trump showed them the power the white evangelicals have to help them capture the Republican Party’s nomination.

An unintended consequence may unfold for the Republican Senate

As the Republicans rush to take the politically correct religious position on abortion, they might just lose control of the Senate. It’s not a stretch to see how likely that is when you look at how the numbers add up.

First, Trump, may not be much help to Senators in retaining their seats. Although he’s repeatedly accused the media and the Democrats of being the enemy of America, many voters may consider him to be. His job approval rating at this point in his presidency is lower than that of all of his recent predecessors except George H.W. Bush. And his disapproval rating is not statistically different from Bush’s, being about 59%. Bush lost his re-election by a margin of 5.6 points to Bill Clinton. Joe Biden has held a steady 6-point lead over Trump in polling of likely voters since February.

A major hurdle that the Republicans face is that not a heck of a lot of folks is undecided on who to vote for. At this point in the election cycle, usually, around 15% of the population still has not decided how to vote. This year, it’s less than half that: about 6%.

The push by Republican Senators to seat an anti-abortion judge could swing the sliver of still-undecided women and men over to Biden’s camp. Protecting the right to have an abortion has been supported by the majority of Americans for over two decades.

Reviewing its polling data, the Gallup Organization found that at no time since 1993 has less than 50% of the populace supported abortion as “legal with some restrictions.” Currently, the figure stands at 50%. Over that same time period, support for abortion as “legal in all circumstances” has ranged between 21% and 33%. Today, the number is 29%. Meanwhile, those who support making abortion “illegal in any circumstance” has floated between 12% and 22%. It currently stands at only 20%.

Senate Republicans are demanding that the next Supreme Court justice side with the smallest slice of the populace on the abortion issue. Will the freedoms of all Americans be defined by a religious minority?

Under our democracy, every religion is protected to practice freely. But that does not give churches the right to define how others must behave. Despite this, Republican Senators making a play for evangelical, Mormon, and conservative Catholic votes cannot afford to upset those faithful few. If Republican Senators wish to keep their jobs, they need Fox News watchers to see them trying to get Trump’s nominee, federal judge Amy Coney Barrett, to commit to overturning Roe v. Wade.

However, Sen. Lisa Murkowski (R-Alaska), has stated that any justice who says “I believe that Roe v. Wade should be overturned,” should be disqualified. She argues that “It’s not just on abortion. It’s on anything that could be pending before the court like that.” Could that simple civics argument sway a couple of Republicans that government and religion should not be commingled on the Supreme Court?

There is some irony that the Democratic Party—the Party of Hope, the party of easy-going liberals—may have nothing to play but the “fear” card. You know, the one that Trump slams on the podium in every speech he gives.

But the fear is real this time if the Republican Party succeeds in establishing the most reactionary Supreme Court since the Dred Scott decision of 1857. That cruel ruling basically said to a freed slave in the North, you are still someone’s property and you are still a slave if you go back to the South. It precipitated the conditions that led to Abraham Lincoln winning the Presidency. Those 19th-century Supreme Court judges could be considered “constitutionalist,” because the Constitution did not recognize slaves as citizens with rights. Just as it does not explicitly recognize women having the right to access abortion. Barrett is already being hailed as a “constitutionalist” jurist.

This time, it will be a Supreme Court telling all women that they have to conform to the morals of a religion they may not belong to. The state will now enforce those religious views on everyone.

It will also be a Supreme Court that makes working families lose their newly acquired health coverage. Trump’s new appointee will likely vote to pull the plug on the coverage provided by the Affordable Care Act. Now, millions could once again face financial ruin paying medical bills. Even though Trump promised more than three years ago to provide a new health plan that would be much better, he has provided nothing.

These are fearful living conditions to return to. The Democrats will certainly highlight them to the voters.

There are still many moving parts as Election Day approaches. No one really knows what will determine the outcome. What is certain is that the Republican Party, with its Freedom Caucus in the lead, has declared that our highest court in the land must not allow women the freedom to decide how they can live.

And, that’s how you Make America Great Again?

Citizenship – Bridging Individualism & Community to Sustain our Democracy

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Written by Nick Licata | Originally published 9/17/20


Citizenship should support a democratic republic that protects individuals’ freedoms and the community’s welfare. We need it to avoid another civil war.

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The U.S. stands out since its creation as championing the rights of all individuals, as proclaimed in the Declaration that Jefferson wrote for the new nation. Always clever, Jefferson substituted “pursuit of happiness” for “possessing property” to cast a wider net.

Although initially those who did not own enough property, or were women or Jews, were deprived of the vote by state governments. Enslaved blacks, of course, were not even considered citizens — they were someone else’s property.

Still, America’s revolution, which championed individual freedoms, can be seen as the spark in the U.S. for abolishing slavery and guaranteeing women the right to vote.

Today, defending individual freedom has been used to defend the “right not to wear a mask,” ignoring the fact that its absence may result in your fellow citizens being infected with the coronavirus. Others claim the right to possess an assault rifle, which is solely designed to kill people.

For some citizens, concern for the welfare of the larger community is too abstract a notion to compensate for losing such personal freedoms. That is the tension between an individual’s freedom and the community’s welfare.

Progressive-Democrat Congresswoman Pramila Jayapal, in her book, Use the Power You Have coined the derisive term “individual supremacy.” It describes an attitude that “rejects compassion in favor of fear of others,” and pits “individual needs versus what is best for the whole communities”. She believes such a perspective “stops us from thinking about how we are linked” and the responsibility we have to each other to tackle big issues such as climate change.

Trump-Conservative Sean Hannity, Fox News’ lead political commentator, attacks leftists in his book Live Free or Die, for “decreeing what kind of straws you can drink from, what kind of lightbulbs you can use, and what kind of power your home can use.” He does not see these individual acts contributing to climate change and causing any harm to the larger community. Such regulations that limit our behavior are unacceptable to him and others.

But Hannity does favor promoting our nation being built upon a community of Christians that require individuals to adopt their values. He fondly quotes the book, The Light and the Glory: 1492-1793 (God’s Plan for America) in describing how our nation’s founders were “chosen by God for a specific purpose: … rediscovering God’s plan to join them together by His Spirit in the common cause of advancing His Kingdom,” and to “operate not as lone individualists, but in covenanted groups.”

The difference in how Jayapal and Hannity frame responsible individual rights to a larger community would seem to be unbreachable. Nevertheless, some folks are leading an effort to redefine citizenship as a means to find some common ground between these opposing forces — before they are resolved on a battleground, as happened in 1860.

Eric Liu and Nick Hanauer, in Gardens of Democracy, identify the rise of new citizenship. It builds upon our founders embracing the ideas that emerged from the Enlightenment. They created a democratic republic separate from the confines of a single religion and church. It substituted reason for doctrine, independence for obedience, scientific method for superstition, and human ambition for divine predestination.

Liu went on to give 19 speeches around the country promoting active citizenship, to rehumanize our politics, and rekindle a spirit of love in civic life. His book Become America: Civic Sermons on Love, Responsibility, and Democracy contains all of his sermons.

Harry Boyte, co-director of the Institute for Public Life and Work at Augsburg University, argues in Awakening Democracy through Public Work that citizens should be seen as producers, not consumers. He sees a need for a stronger, more participatory democratic society, which recalls the citizen-led effort of the Civil Rights Movement.

He goes beyond defining democracy as free elections and largely the activity of government. That approach relies on selecting good political leaders who encourage broad citizen participation. But when the nation’s highest elected leader divides citizens into patriots and terrorists based on their beliefs, there is a need for strong institutions and a culture of acceptance that can push our public officials to unite all citizens to work for the common welfare.

One such organization pursuing that endeavor is Braver Angels, formed primarily by academics and church leaders representing a grassroots movement to depolarize America’s politics. Their board of directors, staff, workshop participants, and funding sources — all are balanced between liberals and conservatives.

They now have more than 11,000 members working in their project, With Malice Toward None, to collect individual pledges not to “hold hate” toward others who vote differently. A signer pledges “to understand the concerns and aspirations of those who voted differently,” to listen to the opposition rather than fear the opposition. It’s an exercise in self-control that is particularly relevant to our presidential election since they see evidence “that we are now as polarized as we have been since the Civil War.”

Some of President Trump’s highest appointed public officials would agree. They are preparing for a real war out of fear – of what? Losing the election? That appears to be the case with Michael Caputo, who handles communications for the Cabinet department in charge of combating the coronavirus.

He charged government scientists on Sun., Sept. 13, of sedition (a felony punishable up to 20 years in prison). He further asserted that left-wing hit squads were preparing for armed insurrection after the election. He made that charge after officials at the Centers for Disease Control told various media how Caputo demanded the agency revise, delay, and scuttle CDC’s public health updates that could imply that the pandemic is not under control.

Caputo sees a gunfight come January. He posted on Facebook, “when Donald Trump refuses to stand down at the inauguration, the shooting will begin,” and added, “If you carry guns, buy ammunition, ladies, and gentlemen, because it’s going to be hard to get.” Caputo vowed that “as God is my witness, I am not stopping” his effort to control the scientists’ work, because President Trump supports him.

It reminds me of Hannity’s certainty in the righteousness of America being tied to “God’s plan to join them [Americans] together by His Spirit” in a common cause. Would that cause me to keep Donald Trump as president on election night if all the votes are not counted?

As this newsletter was about to be released, the Trump Administration decided that leaving Caputo in his very public position was not helping the President win his re-election. Consequently, he was put on a 60-day administrative leave to tend to his mental health. He will be collecting his full pay and benefits and of course, be free to do as he pleases. Perhaps he will campaign for Trump and, as he recommended others to do, go out and buy some ammunition.

A final note on how citizenship can bind us together, and not necessarily through Christianity, or any other religion or ideology like capitalism, socialism, or otherwise.
Citizenship should unite us in a belief that a democratic republic protects individuals’ freedoms as well as the community’s welfare.

David Mathews, president of the Kettering Foundation, tells of a small but telling, incident.  One that points to how our country became a model for liberating individuals from authoritative powers.

“In a draft of the document [the Declaration of Independence], Thomas Jefferson had written the word subjects. Later, he expunged the word, smearing the ink, and carefully overwriting it with another word — citizens. This finding reveals an important shift in the Founders’ thinking: the people’s allegiance was to each other, not a distant King.”

We should add that our allegiance is to our fellow citizens and not to any individual president’s self-interest.

Three WWII Books Mirror Our Current World Conflicts

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Written by Nick Licata | Originally published on 9/12/20


 

World War II ended 75 years ago, the problems that it left behind, displaced immigrants, lack of international law, and the use of nuclear weapons, are all still with us.

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The 75th Commemoration of the End of World War II is Sept. 2, 2020. This fall, three new books cover foreign-policy issues from the conclusion of that war. Those issues are still with us today: how to care for the plight of millions of displaced and desperate immigrants, how to apply international laws to punish enemies, and how to justify (if we can) the use of nuclear weapons. They’re worth a read this fall.

Michel Paradis’ “Last Mission to Tokyo: The Extraordinary Story of the Doolittle Raiders and Their Final Fight for Justice” (Simon & Schuster $28), wrestles with this question: How does one determine justice in a war?

The U.S. public supported punishing the Japanese for executing three captured American pilots who bombed Tokyo after the attack at Pearl Harbor. To pursue a legal course our prosecutors had a problem—“there was no clear legal theory for charging anyone higher up the chain of command … beyond low-level grunts and functionaries.” The Japanese legal system that approved the pilot’s execution was also flawed since the pilots “had no lawyers, no witnesses, and no opportunity to defend themselves.”

Paradis also notes that the U.S. condemned Japan torturing our prisoners, despite Japan’s national pride in having abolished it. However, in the course of the trial, a Japanese officer volunteered that “higher-ups” had approved of U.S. prisoners being beaten, strung up, and electrically shocked.

The reality of not having a universally enforceable legal system to punish war crimes then, as now, shows how such a standard is not easy to achieve in the current war against international terrorists.

Lesley M.M. Blume’s “Fallout: The Hiroshima Cover-Up and the Reporter Who Revealed It to the World” (Simon & Schuster $27) tells how John Hersey, a Pulitzer Prize recipient, noticed that after we dropped a nuclear bomb on Hiroshima, very few survivors were interviewed. The articles published afterward were willingly sanitized by reporters after a little nudging from the U.S. military. Hiroshima’s devastation was televised but the U.S. limited access to the city.

Hersey was not deterred in finding out something more. He personally interviewed civilian survivors and wrote about them as ordinary human beings. Blume explains it was “a then-revolutionary approach to the subject of the atomic bombings” given that the Japanese prodded American entry into the war with the bombing of Pearl Harbor.

Hersey’s 30,000-word essay “Hiroshima” was printed in The New Yorker, with the editors eliminating all other articles. A year had passed from the bombing and the major media outlets believed that Hiroshima was old news. However, it became an overnight sensation, to the horror of the government, which had tried to cover up the resulting civilian human suffering in Japan by limiting physical access and coaxing the press to present a patriotic message.

Hersey’s piece woke the nation to the peril of entering an era of nuclear warfare—one that could be unleashed on U.S. civilians. “Fallout” is particularly relevant now that the U.S. and Russia are moving away from agreements that restrained them from starting a new nuclear arms race. It is a reminder not to ignore the suffering and total destruction a nuclear war can unleash.

At the end of World War II, Germany hosted up to 4 million refugees. David Nasaw’s “The Last Million: Europe’s Displaced Persons from World War to Cold War” (Penguin Press, $35) tells of the last million who had been confined to refugee camps for five years. Most of them were Eastern Europeans who feared going back home. Nasaw explains the politics that drove the U.S. to maintain those camps but to eventually push for the refugees to be settled in Europe, or Palestine for the Jewish refugees.

Like today, countries differed as to whether they would accept refugees. Britain saw refugees as cheap labor but limited the number of people they would accept. The Soviet Union demanded that all of the former occupants of Eastern Europe return home. However, many had collaborated with the Nazis on some level and feared being jailed or executed. Worse-off was the Polish Jewish population. Although the Polish government welcomed them back, even including some in governing, Nasaw concludes that “years of Nazi occupation had not lessened Polish anti-Semitism” but had “legitimized, hardened and regularized it.”

Wars spin-off refugees as collateral damage. Currently, about 1 million Syrians are stuck in refugee camps in neighboring countries. Through great research, Nasaw helps the reader understand the complexity of permanently relocating refugees to a new country. The U.S. led that effort at the end of World War II—could it do it again?