Discuss: Should the filibuster process die in the U.S. Senate?

April 8, 2021 • 9:30 am

(Note: I’m not an expert on politics, so forgive me if I make errors of fact in the following.)

In the American Senate, a filibuster is a tactic used to prevent legislation from coming to a vote. It stems from the Senate tradition of allowing unlimited debate on any such measure. That means that a single Senator, if he or she wishes to speak indefinitely, can postpone a vote.

Filibusters were often used in the Fifties and Sixties to prevent Civil Rights legislation. The longest such monologue was by Senator Strom Thurmond, who in 1953 spoke for 24 hours and 18 minutes protesting the Civil Rights Bill of 1957, though he ultimately lost.

At that time, a two-thirds majority vote was required for “cloture”, or ending the debate. In 1975, the cloture requirement was reduced to three-fifths, so that now 60 Senators must vote to end debate.

But they need no longer monologue, since there is in effect a “virtual filibuster” in which a filibuster can be declared without any Senator having to speak. Thus, to get significant legislation through Congress, 60 Senators must vote to end a virtual filibuster (after that, a simple majority will suffice to pass legislation). The exceptions are confirmation of nominations, as in Supreme Court justices, as well as national emergencies, declarations of war, or time-limited measures like “budget reconciliation“.

Finally, it still requires a two-thirds majority of the Senate, or 67 votes, to end the procedure of filibustering for good; that majority is required to end all Senate rules. Doing this for filibusters is called the “nuclear option”.

As it stands, then, the Republicans have a weapon to prevent significant legislation from Democrats from being passed.

Now Senate Democrat Joe Manchin (West Virginia), the most conservative party member in that chamber, has written an op-ed in The Washington Post saying he will not “eliminate or weaken the filibuster” (click on screenshot to read, and see the Post’s analysis here).

What this means in effect is that Manchin will not vote with the Democratic majority to use the “budget reconciliation” process to bypass the filibuster (this has already been done for Biden’s spending proposal this year), nor will he vote to end a virtual filibuster. He is joined in this declaration by Democratic Senator Kyrsten Sinema (Arizona).

Progressive Democrats, and even more centrist ones, are in favor of voting to eliminate the filibuster. (I don’t see how that will happen given that the elimination requires 67 votes.) But they can bypass the filibuster using “budget reconciliation,” though the Senate Parliamentarian could nix that. But in the absence of this reform, the Senate will be deadlocked on major legislation.

This is a long-winded introduction to a discussion thread: do you favor eliminating the filibuster? Manchin’s rationale is that we need bipartisan support for major legislative changes, and we can’t get that if a simple majority vote is all that’s required. But of course the Republicans are largely intransigent about bipartisanship, and Biden, who swore to “reach across the aisle,” has now recognized that, and is reconciled to 50/50 splits broken by Kamala Harris.

Is it time to eliminate the filibuster? Remember, if you say “yes,” and then the Republicans gain control of the Senate, which may well happen in a few years, then no Democratic legislation could be passed, even by a simple majority vote. (The only reason this could happen now is that Kamala Harris can vote to break a 50/50 tie.)

Weigh in below.

Andrew Sullivan has some concerns about the Biden administration

March 13, 2021 • 12:00 pm

It may be my “glass half empty” view of the world, but Joe Biden, while proving an infinitely better President than Trump, still is doing some things that disturb me. And I don’t feel that we have to praise everything Biden does now that he’s been elected on the grounds that we should just shut up—after all, Trump is worse. Kvetching is always justified, no matter who’s President, for we haven’t had a perfect President.

One of Biden’s bad moves, mentioned very briefly by Andrew Sullivan in his column below, is the new administration’s proposal to dismantle the Title IX provisions for adjudicating sexual-assault cases, provisions strengthened by Betsy DeVos during the Trump administration. (This is one of the few good things I can mention about Trump’s changes.) DeVos’s changes, which I described here, included the following:

1.) Schools would now be required to hold live hearings and not closed-door adjudications.

2.) The “single-investigator model,” in which one person adjudicates all the evidence and passes judgment, would go out the window. All collected evidence would now have to be presented to a (presumably) objective third party or parties.

3.) Both accusers and accused will be allowed to cross-examine each other through an advisor or a lawyer. However, those who accuse someone of sexual assault or misconduct cannot be directly questioned by the defendant, which seems fair and protective of people’s psyches. They can, however, be questioned by a third party like a lawyer or adviser. This was something that was missing in the Obama regulation, but was recently mandated by a federal court ruling in Michigan.

4.) A “rape shield” protection will remain in place, so that a complainant’s sexual history will remain strictly off limits.

5.) Hearing, like court cases, will be conducted with the presumption of innocence of the accused.

6.) Instead of relying on the “preponderance of evidence” standard mandated by the Obama “suggestions,” schools can use either that standard or the “clear and convincing evidence” standard, which is stricter but still not as strict as the “beyond a reasonable doubt” standard used in courts.

You may recall that the standards, as I explained last year, are these:

  • Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
  • Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
  • Conviction requires a “preponderance of the evidence” for assault or harassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.

7.) The legal responsibility of colleges and universities would change: previously schools would be legally responsible for investigating complaints if they had “actual knowledge” that an assault had happened. Now they have legal responsibility only if a victim files a formal complaint. (If the victim doesn’t, schools are still encouraged to provide “supportive measures.”)

8.) Exculpatory evidence cannot be withheld from the accused. It could previously, which was one of the most unfair parts of the Obama-era guidelines. Further, those accused will be able to review all the evidence against them, which wasn’t previously mandated.

9.) Finally, colleges and universities can investigate conduct only if it occurs in the school’s own premises, programs, or activities, or in a location over which the college or university exercises oversight.

This now appear to be going the way of the dodo, as Biden is calling for a review of these changes and, as per a campaign promise, will probably undo them. As NPR reports, this has caused joy on the part of some and dismay on the others. I’m on the “dismay” side because an accusation of sexual assault is a very serious matter, and if you’re convicted you could not only be thrown out of college, but it could ruin your life. It seems to me that if colleges are to adjudicate these matters—and most of our readers think they should go first to the police, with colleges acting only after there’s a judicial finding—the accused and accuser should enjoy the same rights they have in a courtroom. By erasing the DeVos changes, Biden is ensuing that the accused person’s rights as outlined above will be weakened.

Another organization viewing Biden’s proposed changes with dismay is the Foundation for Individual Rights in education (FIRE):

“It’s certainly an opening salvo,” says Joe Cohn, legislative and policy director for the civil liberties advocacy group, Foundation for Individual Rights in Education. “But the administration will not be able to easily ditch the regulations, and we’ll fight tooth and nail to make sure that they don’t.”

Because federal courts have affirmed students’ due process rights, Cohn says, the Biden administration will be limited in how much they can change.

“Institutions will hear from us that they can’t just disregard what the courts are saying,” Cohn says.

Others, however, think that Biden’s rollback is great:

“This is going to be a long march,” says Terry Hartle, senior vice president, Government Relations and Public Affairs for the American Council on Education, a trade group of colleges and universities.

The group is among those who object to the Trump administration rules. Hartle says they not only work against survivors, but they’re also unworkable for schools who are not equipped to be turned into pseudo-courts.

“We’re not judicial bodies,” he says. “Campus officials [are] not trained to navigate these sort of quasi-legal disputes.”

Note that they say the rules “work against survivors”, assuming that accusers are survivors. In fact, they work the same way for everyone, survivor or false accuser, perpetrator or falsely accused. And if schools aren’t equipped to be “pseudo-courts”, either throw the accusations to the police and real courts, or give everyone the same protections they get in real courts.

Another issue I object to, but only in small part, is Biden’s executive order on gender discrimination. While in the main it’s a great thing to have to protect transgender and “other-gender” people, it also regards transsexuals who have not undergone any kind of medical treatment as identical in every respect to someone of the sex they claim to be. For most moral and legal issues that’s fine, but when it comes to sports, prisons, and rape counseling, they should have carved out some reasonable exceptions.

At any rate, like me, Sullivan argues strenuously that criticizing Biden is not the same as approving Trump, which should be obvious. If you subscribe, click on the screenshot below.

Sullivan, who apparently knows a lot more about economics than I, also has a lot more to be worried about. I won’t go into his concerns about the spree of government spending, and I don’t know enough to weigh in on them. But here are some of his other worries (I don’t share all of these):

Step back some more, and look at the rest of the Biden agenda. It’s pretty similar in scale and ambition. HR1 — reforming democracy — has some good parts, but it is also a Christmas tree of hyper-progressive goals. On “social justice” questions, Biden mandates “equity” as a core principle in all policy-making, and Ibram Kendi indoctrination sessions for government employees; he is likely to end due process for college men accused of sexual assault or rape; he wants to legislate that sex-based rights are trumped by gender-based rights, and to repeal the Religious Freedom Restoration Act when it comes to gays, lesbians and transgender people. After a lifetime of opposition, Biden now backs full public funding of abortion. On immigration, Biden’s goal appears to be facilitating as much of it as possible, while granting a mass amnesty. Am I missing something? Is there a policy area where the left is not in control? (Seriously, if you can find an area where they’re not, I’ll post it, and recalibrate.)

He finds a silver lining, though:

Liberal democracy itself is threatened by the extreme gulf between rich and poor — and rebalancing this is vital. The lack of real economic gains for the vast majority for decades requires a major adjustment — and if sending people checks is the easiest way to do this, so be it. The resilience of low inflation and the persistence of a financial crisis recession suggests that a bigger stimulus in 2009 would have been preferable. Finding a way to support greater inclusion of minorities and women in every sphere of life and work is the right thing to do. Expanding healthcare to those most excluded it from it should not be a controversial question. In all these areas, the Democrats have their hearts and minds in the right place. A shift to the left in 2021 is completely defensible. Even the British Tories are economic lefties now. My 1980s self would look at my 2021 politics and be amazed how far I’ve come.

But a capitulation to the far left is something else.

Is Biden capitulating to the far left? I think he is—at least a lot more than I suspected. And below are some more concerns:

What I fear is that economic history has not ended, and that uncontrolled borrowing, spending and printing will lead to inflation that destroys people’s savings and livelihoods. What I fear is the next recession, when our staggering debt could render the government incapable of mitigating it. What I fear is an assault on the very ideas of individual freedom, merit, objective standards, hard work, self-reliance and free speech that have long defined the American experiment — in favor of crude racial engineering.

I’m with Andrew on the ones below:

What I fear is a generation’s rejection of limited government, and color-blind liberalism. What I worry about is a press whose mission seems increasingly devoted to enforcing elite orthodoxies, rather than pushing back on all forms of power. I fear an educational establishment that instills critical theory’s racism and sexism into the hearts and souls of children from the start, an establishment that regards the very idea of America as indelibly evil, and its founding ideals a myth and a lie.

In the main, of course, things are looking up. A detour into lunacy has been corrected. Now if we could just keep the left from becoming the Looney Left.

Impeachment trial: discuss

February 10, 2021 • 6:00 pm

I haven’t watched the live coverage of the impeachment trial, which began in earnest today with the “prosecution’s” presentation of the evidence. What’s all over the Internet are new scenes of terror and violence in the Capitol, which of course are relevant to the indictment since this is the purported outcome of Trump’s words.

But of course the question is whether Trump knowingly incited that violence, and here the Democrats have an uphill battle. For every rioter who said that “Trump invited us here,” there is a statement by Trump calling for “peaceful demonstration at the Capitol”. It all rests on sussing out what his intentions were. The degree of violence, even if it were much less than actually occurred, and didn’t involve deaths, is in some ways ancillary.

I happen to believe that Trump did know what he was doing, and thus is guilty of the charge. But I also think the charges could have been more far-reaching, involving many different forms of malfeasance and incompetence. Were he in his second or third year of Presidency, he would have go go NOW.  He’s gone, though, and so the Democrats have a hard job.

The House impeachment managers have done a terrific job, but they’re facing a near monolith of Republican opponents, many of them claiming, ironically and disingenuously, that the trial is “divisive.” I have little hope of a conviction, for the division occurred a long time before the impeachment began, and the Republicans too self-absorbed to worry about America.

Many of you have watched the coverage. What do you think so far?

Like Bari Weiss, Andrew Sullivan is pro-Biden but worried

January 23, 2021 • 11:00 am

If you didn’t like Bari Weiss’s reservations about potential problems with the Biden administration, which include its truckling to the Woke, you’re really not going to like Andrew Sullivan’s latest piece at The Weekly Dish (click on screenshot below). For Sullivan has a take almost identical to Weiss’s, and yet I sympathize with some of his worries.

Click on screenshot to read it (you’ll probably need a subscription, but I’ll give a few quotes). One note: You are free to say what you want in the comments, including that you’re not worried about this stuff, but please don’t tell me that I’m not allowed to have concerns—that now I should be celebrating rather than nitpicking. I am in fact doing both!

Like Weiss, Sullivan begins (and ends) by expressing some fealty towards Biden and hopes that his administration will succeed. He notes that Biden’s Inaugural speech was uninspiring and in fact anodyne, and Sullivan’s right. But, as I’ve noted before, in those words we saw the real Joe: a decent and straightforward man with a vision, however unrealistic it is. He is not an orator. Sullivan:

But [Biden’s Inaugural speech] matched the occasion: it was conventional, banal even, and anodyne. And how much we’ve missed banality! Biden boldly asked us to be against “anger, resentment, hatred, extremism, lawlessness, violence, disease, joblessness and hopelessness,” and to reaffirm the “history, faith and reason” that provides unity. Sure. Okay. At that level of pabulum, who indeed could differ? And a nation united in pabulum is better than one divided into two tribal camps waging an “uncivil war” against each other about everything.

And if Biden sticks to this kind of common ground, it will serve him well. He is lucky, in many ways, to succeed Trump. Any normal inauguration would feel transcendent after the sack of the capitol.

After praising Joe for his pandemic response, economic stimulus package, energy plan, and so on, Sullivan gets down to business. Here are his areas of concern (Sullivan’s quotes are indented, mine flush left).

1.) Immigration.  The Democrats really need to put together a sensible immigration policy that doesn’t say “open borders” to Americans. If they don’t do this, they’re shooting themselves in the foot, and risk big losses in the midterm elections.

But Biden has also shown this week that his other ambitions are much more radical. On immigration, Biden is way to Obama’s left, proposing a mass amnesty of millions of illegal immigrants, a complete moratorium on deportations, and immediate revocation of the bogus emergency order that allowed Trump to bypass Congress and spend money building his wall. Fine, I guess. But without very significant addition of border controls as a deterrent, this sends a signal to tens of millions in Central to South America to get here as soon as possible. Biden could find, very quickly, that the “unity” he preaches will not survive such an effectively open-borders policy, or another huge crisis at the border. He is doubling down on the very policies that made a Trump presidency possible. In every major democracy, mass immigration has empowered the far right. Instead of easing white panic about changing demographics, Biden just intensified it.

2.) Equity versus equality. It behooves all of us to understand the difference. I hope that Biden does! At present he seems to be bowing before Critical Theory in his executive orders:

Biden has also signaled (and by executive order, has already launched) a very sharp departure from liberalism in his approach to civil rights. The vast majority of Americans support laws that protect minorities from discrimination, so that every American can have equality of opportunity, without their own talents being held back by prejudice. But Biden’s speech and executive orders come from a very different place. They explicitly replace the idea of equality in favor of what anti-liberal critical theorists call “equity.” They junk equality of opportunity in favor of equality of outcomes. Most people won’t notice that this new concept has been introduced — equity, equality, it all sounds the same — but they’ll soon find out the difference.

In critical theory, as James Lindsay explains, “‘equality’ means that citizen A and citizen B are treated equally, while ‘equity’ means adjusting shares in order to make citizen A and B equal.” Here’s how Biden defines “equity”: “the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.”

In less tortured English, equity means giving the the named identity groups a specific advantage in treatment by the federal government over other groups — in order to make up for historic injustice and “systemic” oppression. Without “equity”, the argument runs, there can be no real “equality of opportunity.” Equity therefore comes first. Until equity is reached, equality is postponed — perhaps for ever.

I’m not sure that Biden’s definition adheres to the equity limned by Lindsay. All we can do is wait and see what Biden proposes. His executive order does seem to conflate “equity” and “equality of opportunity,” so someone should at least tell Joe the difference.

I think that for the near future the Democratic policy should be a combination of both equity and equality: some affirmative action but with the real work—and the hard work—being done on the level Sullivan notes in the paragraph just below. For the truth is that until equality is reached, equity won’t follow except though some kind of affirmative action. Like Sullivan, my goal is equality: equality of opportunity for all, which means removing the barriers to achievement that have impeded oppressed groups for decades. That takes a huge influx of effort and money into poor communities, and I’d hope we have the will and the funds to do that. But I’d throw some equity in there, too, for a government that at least doesn’t in part include representatives from all groups loses its credibility. Sullivan sees Biden adhering to the Ibram X. Kendi view of racial equity. I’m not yet sure of that, but Biden does seem to be going in that direction.

Sullivan saying, correct, what we really need to do:

Helping level up regions and populations that have experienced greater neglect or discrimination in the past is a good thing. But you could achieve this if you simply focused on relieving poverty in the relevant communities. You could invest in schools, reform policing, target environmental clean-ups, grow the economy, increase federal attention to the neglected, and thereby help the needy in precisely these groups. But that would not reflect critical theory’s insistence that race and identity trump class, and that America itself is inherently, from top to b

3.) Gay and gender issues. Like me (I think), Sullivan is in favor of equality based on sex and gender (including transgender people), but has some worries that the Biden administration will neglect those issues in which sex and gender issues mandate some inequality:

Biden’s executive order on “LGBTQ+” is also taken directly from critical gender and queer theory. Take the trans question. Most decent people support laws that protect transgender people from discrimination — which, after the Bostock decision, is already the law of the land. But this is not enough for Biden. He takes the view that the law should go further and insist that trans women are absolutely indistinguishable from biological women — which erases any means of enforcing laws that defend biological women as a class. If your sex is merely what you say it is, without any reference to biological reality, then it is no longer sex at all. It’s gender, period. It’s socially constructed all the way down.

Most of the time, you can ignore this insanity and celebrate greater visibility and protection for trans people. But in a few areas, biology matters. Some traumatized women who have been abused by men do not want to be around biological males in prison or shelters, even if they identify as women. I think these women should be accommodated. There are also places where we segregate by sex — like showers, locker rooms — for reasons of privacy. I think that allowing naked biological men and boys to be in the same showers as naked biological women and girls is asking for trouble — especially among teens. But for Biden, this is non-negotiable, and all objections are a function of bigotry.

And in sports, the difference between the physiology of men and women makes a big difference. That’s the entire point of having separate male and female sports, in the first place. Sure, you can suppress or enhance hormones. But you will never overcome the inherited, permanent effects of estrogen and testosterone in childhood and adolescence. Male and female bodies are radically different, because without that difference, our entire species would not exist. Replacing sex with gender threatens women’s sports for that simple reason.

Now people have said these are “quibbles” I’m less worried about locker rooms than about sports, prisons, rape counseling and women’s problems. Granted, these are not as pressing as are issues of inequality, climate change, and economics.) But they’re not quibbles, for a). they bear on issues of fundamental fairness, and those issues won’t go away; and b). the way Biden’s administration works this out will have consequences for the acceptance of the Democratic Party as a whole—for our continuing control of the House and Senate (the Supreme Court is already lost for several decades). And remember, Biden casts himself not as a messenger of Wokeness, but as a healer. If he’s to heal, he has to realize that most Americans want a sensible immigration policy, want equality but only a temporary remediation of inequity via affirmative action, and don’t want untreated biological men serving time in women’s prisons or participating in women’s sports. So far Biden’s policies seem to me way too conciliatory towards Critical Theory. That is to be expected if he’s clueless about Critical Theory and also keen to not be called a racist by more leftist Democrats.

Sullivan ends this way:

I wonder if Joe Biden even knows what critical theory is. But he doesn’t have to. It is the successor ideology to liberalism among elites, a now-mandatory ideology if you want to keep your job. But Biden’s emphatic backing of this illiberal, discriminatory project on his first day is relevant. He has decided to encourage “unity” by immediately pursuing policies that inflame Republicans and conservatives and normies more than any others.

And those policies are obviously unconstitutional. . .

. . . I want Biden to succeed. I want Republicans to moderate. I want to lower the temperature. I want to emphasize those policies that really do bring us closer together, even though many may still freely dissent. Biden says he wants to as well. But none of that can or will happen if the president fuels the culture war this aggressively, this crudely, and this soon. You don’t get to unite the country by dividing it along these deep and inflammatory issues of identity. And you don’t achieve equality of opportunity by enforcing its antithesis.

I’ve quoted too freely here, and you should pay the $50 per year to read Sullivan (and perhaps Bari Weiss), because they’re good writers, because they may have views that don’t exactly jibe with yours, and because you need to read something besides the New York Times and Washington Post, which have already caved to Critical Theory. Actually, I pay $4 per month to read the NYT, so I’m paying more to read Sullivan (and Weiss, if I subscribe) than to read whole newspapers. I’ll live.

Yes, we can and should celebrate the unexpected victory of the Democrats as well as their takeover of Congress. But remember too that Biden promised to heal, and you won’t heal America by imposing Critical Theory on it.

 

Watch the Inauguration live here starting 9 a.m. Eastern time

January 20, 2021 • 7:30 am

Joe Biden’s Inaugural Committee is hosting this live video of the festivities, which begin in about 30 minutes: at 9 am Eastern Time.  I’m not sure what’s on tap except for the swearing in of Biden and Harris, but check it out from time to time.  You’ll get to

Other events and livestreams can be found here and here.  The swearing-in ceremony is set to begin at around 11 a.m. Eastern Time, but I’d tune in about 10:30 just to be sure, as I’ve seen conflicting times.

The New York Times gives this schedule:

The inauguration will begin around 11 a.m. Eastern. Mr. Biden and Vice President-elect Kamala Harris will take the oath of office just before noon on the West Front of the Capitol, where Mr. Biden will also deliver an address to the nation for the first time as president.

Lady Gaga will sing the national anthem at the swearing-in, and Jennifer Lopez and Garth Brooks are also set to perform.

Mr. Biden and Ms. Harris, along with their spouses, Jill Biden and Douglas Emhoff, will then conduct a review of the military and visit Arlington National Cemetery to lay a wreath at the Tomb of the Unknowns. They will be joined by three former presidents and their wives: Barack and Michelle Obama, George W. and Laura Bush, and Bill and Hillary Clinton.

Finally, Mr. Biden and Ms. Harris will head to the White House. Instead of a parade along Pennsylvania Avenue, a virtual procession will showcase performers and speakers from across the country.

Nick Cohen and Andrew Sullivan: Why Trump is a fascist and an insurgent

January 17, 2021 • 9:30 am

Here’s the bad news to start off with, presaging no early end to the polarization of America (h/t: Matthew)

As of Wednesday, Donald Trump will no longer be President, and I for one am looking forward to a time of relative calm and rebuilding, if not “healing”. But I’m also curious as to what will happen to the Republican party, and a bit fearful of what the gun-hugging loons are going to do on Wednesday, or when the Democratic Congress starts undoing all of Trump’s changes. Washington D.C. is now closed to those who want to watch the Inauguration live; we’ll have to resort to television and and President behind bulletproof glass.

In the meantime, while the days of Trumpism dwindle down to an unprecious few, we have two final cris de coeur giving a final assessment of the Trump presidency.  Nick Cohen ponders whether it’s correct to call Trump a fascist, while Andrew Sullivan is taken aback by Trump’s participation in the Capitol insurrection.

Cohen first, as what he says seems more thoughtful. Click on the screenshot (h/t Jez)

For Cohen, the word “fascist” is not to be used lightly; as he says:

The use of “fascism” in political debate is both a call to arms and a declaration of war. For once you say you are fighting fascism there can be no retreat. By talking of “pre-fascism” or “neo-fascism”, you acknowledge that the F-word is not a bomb you should detonate lightly; you also acknowledge the gravity of the times.

But he then disposes of two alternative adjectives: Trump’s not a “conservative” because his views and actions don’t comport with what people have usually meant by the term. Nor is Trump a “populist” because, says Cohen, he’s not supporting the people against elites: Cohen avers that it’s itself elitist to “[deny] the result of the people’s vote with the big lie, the Joseph Goebbels lie, that Trump won the election he lost and then [to incite] brainwashed followers to storm democratic institutions”.  Well that sounds like populism to me, at least according to the Oxford English Dictionary’s definition:

POPULISM. The policies or principles of any of various political parties which seek to represent the interests of ordinary people, spec. of the Populists of the U.S. or Russia. Also: support for or representation of ordinary people or their views; speech, action, writing, etc., intended to have general appeal.

Some have compromised by calling trump a “proto-fascist” or “pre-fascist”, but Cohen dismisses those terms as well, and for three reasons you can read about in his piece. For Cohen, the term “fascist” winds up perfectly appropriate for Trump because of his incitement to overthrow a democratic election. In particular, Cohen dismisses the argument that Trump shouldn’t be called a fascist because he hasn’t yet “transformed his society into a totalitarian war machine”:

The example of the stages of cancer, so beloved by believers in Trump derangement syndrome, explains the stupidity. Imagine you are a doctor looking at pre-cancerous cells or an early-stage cancer that has not grown deeply into tissue. The door bursts open and a chorus of Fox News presenters and Cambridge dons cry that “real experts in the field” agree that on no account should you call it cancer until it has metastasised and spread through the whole body. A competent doctor would insist on calling a fatal disease by its real name and not leave treatment until it was too late to stop it. So should you.

Well, no, it’s not a fatal disease until it’s become terminal, so the metaphor is weak. In truth, this does seem to be a quibble about labels, informed though it is by Cohen’s knowledge of history. We know what Trump is, and does it really make a difference if, technically, he’s a fascist or not? Our drive to ensure that he never again holds the reins of leadership doesn’t depend on a label, but on his past behaviors.

At the Weekly Dish, Sullivan calls for Trump’s impeachment and conviction, pretty much also on the grounds that he is a fascist, de-legitimizing a democratic election whose results were audited and found correct (click on the screenshot):

A quote:

This is why Trump should be impeached and convicted in the Senate. Not because he directly incited a riot against members of Congress and his own vice-president  and chose not to intervene while it continued. It’s that Trump has repeatedly, insistently and emphatically attacked the legitimacy of the entire democracy he is in charge of. This is not just a Big Lie, as others have noted. It’s the Biggest Lie Imaginable. It’s arsenic to a functioning democracy, and Trump has long injected it directly into the veins of the American system.

. . . Trump is leveraging the authority of his office — the highest in the land — to destroy the legitimacy of our entire system, and of the next president: “By the way, does anybody believe that Joe had 80 million votes? Does anybody believe that? He had 80 million computer votes. It’s a disgrace. There’s never been anything like that.” Did he want an inquiry? Nah. He was quite clear what his immediate purpose was: “All Vice-President Pence has to do is send it back to the States to re-certify, and we become president.”

But before that, Sullivan emphasizes America’s increased polarization, due largely to the recalcitrance of the GOP:

You can see the difference between 2016 and 2020 in this stat: “In 2016, 52% of Democrats said Hillary Clinton’s loss to Trump was ‘legitimate and accurate,’” — pretty disconcerting for any democracy. But this year, only “26% of Republicans said they thought Trump’s loss was similarly legitimate.” In 2016, right after the election, 84 percent of adults believed the election was legitimate, with 15 percent opposed. In 2020, only 57 percent of Americans believed that Joe Biden was legitimately elected president, compared with 43 percent who didn’t. Among men, it’s 51 to 49 percent. Among those earning between $50K and $100K, it’s a 50-50 split. Among white men without a college degree, a clear majority, 62 percent, believe the election was outright stolen. That’s a huge torpedo hit below the waterline for our democracy.

Trump has already been impeached, though I doubt the upcoming trial will convict him since 17 Republican Senators have to vote for that result. Regardless, the system is now working as it should, though I think, in the interests of harmony (if that’s possible), Democrats should resist gloating. (Neither Cohen nor Sullivan are guilty of this.) As Michelle Obama said, “When they go low, we go high.”

Although I wasn’t that impressed with Sullivan’s piece, largely a regurgitation of previously-published views and statistics, his reason for impeaching Trump is at least interesting. Sadly, though, the one count of the indictment is not “repeatedly, insistently, and emphatically [attacking] the legitimacy of the democracy he is in charge of.” The insurrection is merely one aspect of those attacks, but the Senate has to vote on the charges, and one can make a superficially plausible case that Trump wasn’t inciting immediate and predictable violence. I don’t agree with that defense, but Sullivan’s own charge is irrelevant for the forthcoming trial.

Should Trump be tried by the Senate for insurrection?

January 13, 2021 • 9:00 am

It looks pretty certain now that the House of Representatives will vote today to impeach Donald Trump for “high crimes and misdemeanors”, namely fomenting insurrection. You can watch the impeachment proceedings live at the site below, which are underway:

The charges are laid out in the following five-page document (click on screenshot below). The heart of the charges is this:

Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has ‘‘engaged in insurrection or rebellion against’’ the United States from ‘‘hold[ing] any office . . . under the United States’’.  In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States. . . .

 

The House will certainly vote for impeachment, and at least five Republicans will join what will certainly be nearly all House Democrats, ensuring a majority vote—all that’s needed to send charges to the Senate.

As VP Pence has rejected the House’s demand that he use the 25th Amendment to expel Trump from office, impeachment would be the only way to get him out before Biden’s inauguration. A Senate hearing could in principle be held and dump him before January 20th, though that seems unlikely since there would be just one day to have that hearing. A Senate impeachment trial could of course proceed after Trump’s out of office.

There’s also the possibility of Congress censuring Trump in a resolution, but that isn’t in the offing yet.

Now four House Democrats didn’t endorse the impeachment resolution (one voted “present” and another is likely to become a Republican), but the other two oppose impeachment, at least one because it’s “divisive.”

The question at issue is not whether the House should vote to impeach Trump, as that’s a fait accompli. The question is whether the Senate should try him for insurrection. I think that they are required to have a trial if sent the bill of charges approved by the House, but I’m just laying out the pros and cons.

Here are the arguments I see both in favor of and against trying Trump in the Senate:

IN FAVOR:

A.) It is a punishment of the man for all the bad deeds he did, culminating in his reprehensible and unconstitutional behavior last week. He would be the only President to have been impeached twice, and it’s a black mark on his record.

B.) He can be prevented from running for future office even if he’s not convicted. As Reuters notes:

Impeachment could be used to remove Trump from office and to disqualify him from holding political office in the future.

Two historical precedents, both involving federal judges, make clear that the Senate could also vote to disqualify the president from holding office in the future, with only a simple majority needed.

Paul Campos, a professor of constitutional law at the University of Colorado, said that even if the Senate does not convict the president, senators could hold a second, separate vote to prevent him from future office.

That would mean Democrats, who will take control of the Senate later in January, could bar Trump from running for president in 2024 even without the support of Republican senators.

C.) As Mitch McConnell thinks, kicking Trump out of office (or convicting him after he’s gone) would rid the Republican Party of Trump, whose actions are fracturing the party.

 

AGAINST:

A.)  He will not be convicted, as that requires 17 Republicans to join with all the Democrats in the Senate to get the necessary 2/3 majority. Convicting him is, at this time, a futile hope.

B.)  It will be a symbolic vote since he’d be out of office even if he were convicted.

C.) It smacks of retribution, of Democrats getting back at him, and not just for his reprehensible actions last week. This occurs at a time when Biden is calling for “reaching across the aisle.”

D.) It makes Trump even more of a martyr to those of his minions who see him as persecuted. It’s thus divisive.

E.) It takes up time that the Senate needs to enact new legislation under Biden.

The most powerful argument for trying him, at least in terms of doing something concrete, is B above: he might be barred from running for office again, and that requires a simple majority vote which would surely occur in the Senate. The symbolic shaming will do little, I think, to stop his reprehensible behavior, which is hard-wired in his neurons and not subject to change. The fact that an impeachment vote will surely fail in the Senate does, however, tell the world that we will not tolerate a fascist, and at a time when the world’s opinion of America has fallen quite low.

Though there are arguments on both sides, I tend to approve of both the House impeaching Trump and the Senate trying him, even though they won’t secure a conviction. The symbolic act is a powerful one, which, though it may be divisive, will only divide those who support America’s democratic values from those who support fascism. Congress needs to make a statement, and impeachment, even without conviction, is a statement.

And, of course, if the Senate can secure that majority vote, it may be able to bar Trump from holding any federal office, which is a good thing. HOWEVER, even that might not work. As Reuters adds:

Trump could, however, try to challenge such a determination [the “can’t run for office” vote] in court, Campos said. The Supreme Court in 1992 said it would not second-guess the Senate’s decisions about how to handle impeachment proceedings.

“The Senate has great latitude in deciding how it wants to conduct a trial,” Campos said.

Other legal experts, however, said the Senate could only prevent Trump from holding office if it first votes to convict him in the impeachment trial.

So even a majority vote might not be enough to keep Trump from running again.

In the end, though, we can expect Trump, even if he doesn’t hold office, to remain a major figure in the Republican party, a “senior statesman”—horrible as that sounds—who will continue to make pronouncements and foment hatred. There’s nothing that anybody can do about that now.

But we can be heartened by realizing that Trump will now likely face state charges for tax evasion and other issues, and he cannot pardon himself for those. For the rest of his life he’ll be embroiled in legal and political fighting. Maybe he’d like that, as it feeds his narcissism, but I sure wouldn’t want to spend my dotage fighting the law—and perhaps sitting in jail.

Weigh in below, of course.

Impeachment articles drawn up by House, as well as request for Pence to invoke the 25th Amendment

January 11, 2021 • 1:00 pm

Just a a couple of hours ago, the House of Representatives introduced a motion to impeach the “President” for the second time. Click on screenshot to go to the pdf:

There’s one article: “Incitement of insurrection,” but that includes not only his speech to the protestors before they bum-rushed the Capitol, but also his sleazy phone call to Georgia’s Secretary of State, urging him to “find more votes” to overturn the state’s electors.

There’s also this resolution, based on the same data, calling for Pence to get the 25th Amendment rolling and call on Trump to resign, forcing him if he balks (click on screenshot):

House Republicans objected to the second measure, but they’re in a minority, so if that resolution comes to the floor, it will pass. But it’s toothless, for it has no power to force Pence to do anything. The NYT gives more details:

As expected, Republicans objected to a resolution calling on Mr. Pence to invoke the 25th Amendment, meaning that the House would have to call a full vote on the measure, most likely on Tuesday. Democratic leaders were confident it would pass, and pressured Republican lawmakers to vote with them to beseech the vice president, who is said to be opposed to using the powers outlined in the Constitution, to do so.

It was a remarkable threat. If Mr. Pence does not intervene “within 24 hours” after passage and the president does not resign, House leaders said they would move as early as Wednesday to consider the impeachment resolution on the floor, just a week after the attack. Already more than 210 Democrats have signed onto the leading charge, just shy of a majority of the House. Several Republicans were said to be considering voting to impeach for the first time, though party leaders were opposed.

I think there are grounds for invoking the 25th Amendment, as Trump is clearly incapacitated by some mental affliction, but this is a futile gesture. I have more hope for (and approval of) the impeachment, but with the proviso that if the House passes it (and it will), they wait a while before sending it to the Senate before trial. That would prevent Biden’s first days in office from being tied up in a fractious impeachment trial, and allow him—as, I believe, he wishes—to get going with his legislation. And we need him to get going, for we don’t know if he has longer than two years of a Republican Senate.

As they say every decade, “We live in interesting times.” But I never imagined I could see the day when a fascist could hold the reins of power and command his minions to storm the Capitol building. This is worse than Nixon, which is the worst I’ve seen since I’ve been alive.

Snopes investigates claim that Trump incited the storming of the Capitol

January 9, 2021 • 10:30 am

Snopes leans largely to the Left, so if it gives a mixed rating to the question below (half true/half false), you can be pretty sure that it would not stand up in a court of law, much less the Senate. I didn’t follow exactly what the Orange Man said before the horrific events of three days ago (five people are now dead, including a Capitol police officer who died after being bashed in the head with a fire extinguisher), but I’m pretty sure that Josh Hawley’s fist-pump to the demonstrators does not constitute incitement to imminent violence. Hawley could have been giving an “I’m with you” sign—odious enough, but not unambiguous enough to prove, much less buttress, the calls of people who want him tried for treason.

Trump may be impeached, and I support the House going forward with that, but what was his role, if any, in inciting people to storm the Capitol? Well, Snopes gives the question a “mixture” response (click on screenshot).

It turns out that Trump may have had this violence in mind, but he was very, very canny about what he said, and since we can’t show that he knowingly incited violence, that can’t be proven. Here’s what Snopes says:

There’s more stuff, but author Jessica Lee concludes this:

In short, the president called on supporters to “peacefully and patriotically” march or walk to the Capitol on Jan. 6, 2021, to urge members of the senate to defy the Electoral College vote in a constitutionally mandated procedure to affirm Biden’s win, without using the words “storm” or “breach” or “break into” the federal building.

Put another way, the president encouraged supporters to descend on the Capitol grounds and “cheer” on senators who would break laws governing U.S. elections, but he did not explicitly tell people to commit crimes themselves.

Furthermore, it was a subjective call on whether the phrases “you have to show strength” and “demand that Congress do the right thing” were actually messages condoning crimes and violence among extremists, without outright encouraging it. Such a rhetorical strategy is known to scholars of white nationalist and extremist groups, including the Proud Boys.

In sum, while Trump did not say the words “storm” or “break into” the White House, Trump indeed told supporters to gather at the U.S. Capitol and try to convince members of Congress to delay the constitutional process that would affirm Biden’s presidency. For those reasons, and the ones outlined above, we rate this claim a “Mixture.”

In other words, if Trump had that in mind (and who knows?), he was very clever. Demented, maybe, but perhaps clever. He may be impeached, but if this is the main charge, I predict that he won’t be convicted in an impeachment trial. Why, then, do I favor impeachment? Well, there’s the slight possibility that some Republicans may vote with the Democrats, for there were many reasons to remove Trump from office besides the charge of incitement, but mainly I think it will be another black mark on his record: the first President to be impeached twice.