Pragmatic politics focused on the public interest for those uncomfortable with America's two-party system and its way of doing politics. Considering the interface of politics with psychology, cognitive science, social behavior, morality and history.
Etiquette
DP Etiquette
First rule: Don't be a jackass.
Other rules: Do not attack or insult people you disagree with. Engage with facts, logic and beliefs. Out of respect for others, please provide some sources for the facts and truths you rely on if you are asked for that. If emotion is getting out of hand, get it back in hand. To limit dehumanizing people, don't call people or whole groups of people disrespectful names, e.g., stupid, dumb or liar. Insulting people is counterproductive to rational discussion. Insult makes people angry and defensive. All points of view are welcome, right, center, left and elsewhere. Just disagree, but don't be belligerent or reject inconvenient facts, truths or defensible reasoning.
This morning when the radio alarm fired up at 6 am as usual, I listened to stories of Californians who lived on the edge before losing jobs and/or getting evicted from their homes. The state passed a law to block evictions, but it came too late for at least some people. The stories included details of how these people work one, two or three jobs to just barely break even, or for a few, start to put a few dollars in savings. One woman who worked three jobs had accumulated $2,000 in savings. She lost all three jobs due to the coronavirus pandemic and statewide social lockdown here in California. After the $2,000 is gone, she will run out of food and stop paying rent for lack of income. The other stories were equally heart breaking.
This wasn't their fault. They were working hard and trying their best. They were deceived and betrayed by incompetent federal level leadership.
A discussion I posed here on March 17, Coronavirus Update 3: We Still Fly Blind, But at Least Trump Seems to be Awake Now, noted that it was on March 16, 2020 that our president appeared to finally take the coronavirus pandemic seriously for the first time. By then, it was too late to proactively respond to the virus. America finally started reacting in serious ways.
As one commenter noted in the discussion here yesterday, Some Personal Thoughts on Various Things, the president fired the head of the US pandemic response team in 2018. She was fired one day after publicly stating that the US was unprepared for a pandemic. In the 5 minute segment below, commentator Fareed Zakaria describes the general level of incompetence of the federal pandemic response. Zakaria mentions the firing of the head of the US pandemic response team.
It is undeniable that Trump fired the head of the US pandemic response unit after she publicly said the US was unprepared for a pandemic. That firing directly reflects Trump’s belief that telling the public inconvenient truths is disloyal and will result in firing the offender. In terms of federal governance, Trump values deceit and blind loyalty far more than he values truth or service to the public interest. There is no other plausible way to see this other than as staggering incompetence by a vindictive, chronic liar president and the team of incompetent enablers he has surrounded himself with.
But to be fair, the president recently trotted a real scientist or two out to speak to the public about the situation based on science and reality instead of self-serving, boastful rhetoric that was previously mostly lies and deceit, e.g., 'this is Obama's fault’, 'we’ve done the best job ever’, etc.
Yesterday’s discussion mentioned that some members of congress from both corrupt parties sold some or most of their stock holding before the stock market crashed in February. They had been warned in secret by the CIA that the coronavirus pandemic would lead to severe economic consequences. The reaction of these fine pillars of the community and members of the US congress? Sell their stock but don't warn the public about what's coming. Again, self-interest trumps the public interest in the now defunct but still corrupt relic called America’s two-party, pay-to-play political system.
One can see why many Americans are not only walking away from both parties. Some are also seriously questioning the merit, or lack thereof, of for-profit capitalism, for-profit governance, a grossly overpriced for-profit health care system, and even democracy itself. Is that reassessment of our situation unfair or unwarranted? I don’t think so.
Also worth noting is the fact that some places such as South Korea were able to deal with the pandemic without the massive economic and social pain and loss that America is going to experience. It if fair to believe that had the federal response been proactive and competent from the beginning, American could have been spared much or most of the pain and loss that is to come.
Apportioning blame
Who, if anyone is to blame? What portion of blame should they get? What is fair and reasonable? Is it counterproductive or stupid to even think about apportioning blame now while the disaster in still unfolding?
One way to analyze this: In my opinion, the president (1) bears much blame for the failures here. His administration (2) is also partly responsible for being unable to make the president see reality for what it was before it was too late. People should not be left off the hook just because they were hired to be lickspittle yes people unwilling to speak truth to a power who refuses to accept or even hear truth. People who voted for the president in 2016 and still support him (3) cannot be ignored and share some blame. That said but group 3 can be forgiven for not knowing that the president would wind up firing all the competence around him and replacing that with licksptittles. I sure didn’t see that coming in 2016. And what about people who opposed the president from the start and still oppose him (4), e.g., people like me? Group 4 includes some who put corrupt, spineless Trump Party enablers in congress. Congress (5) is not without blame here either. Neither is the hyper-expensive, for-profit US health system (6). Neither is the for-profit US business sector(7). Neither is the heavily tax-sheltered and subsidized American religious sector (8). Neither is everyone else not in groups 1-8, and that includes non-voters (9). Here is blame could be apportioned among those nine groups:
This virus business uncertainty is personally disorienting to a non-trivial extent. So much is flying under the radar that many things our federal government has done or is doing is getting too little public attention. Much MAGA!! is going on right under our noses.
Small things
A conversation I had with a more informed and intelligent mind than mine a few days ago, told me that the current issue of Car and Driver magazine reports that a 1990s Newt Gingrich law, named to imply that the data of people who give personal information the law states required would protect people's information required to get a driver’s license, actually made it legal to do the opposite. The law was deceptively and intentionally named something like “Protection of Driver’s Privacy Act.” That law claimed to protect the rights of states to sell driver’s personal information to private entities. In fact, what Newt did to us legalized states to sell sells driver personal data to any dirtbag or dipstick on planet Earth. Thank you Newt and 1990s republicans (now Trump Party).
So what? If I recall the conversation correctly, the state of Florida sold Florida driver information for $77 million to whoever Newt’s corrupt law allowed. What is really galling is that the state of California sold California drivers out for a puny $56 million (if my memory of the conversation is good). California sold me out cheap. I want my data back. (But of course, it is too late for that -- it has been resold as many times as there were 3rd party buyers for it)
I greatly prefer to not rely on my memory for any fact assertions in my posts here. I much prefer quote directly from original sources, e.g., the Car and Driver magazine article, but measures to deal with the Trump Virus (the TV) has shut the local Barns & Noble store down. I could not buy the magazine and quote directly from it. The TV is responsible for this weakening of honest communications in American society.
Insider trading by members of congress and white collar crime
Multiple sources report that pillar of the community and valiant patriot Senator Richard Burr (R-NC), chairman of the senate Intelligence Committee, sold about $1 million in stock to avoid the hit the TV has had on the stock market. Burr knew that a major stock market collapse was imminent. The New York Times writes:
“On the morning of Feb. 4, Mr. Burr assembled members of the committee in a secure room on Capitol Hill to hear for the first time from intelligence officials about how foreign powers were responding to what the World Health Organization had days earlier declared a global health emergency.
Their warnings were not highly classified or all that specific, drawn largely from diplomatic wires and publicly reported information, according to three people familiar with them. But at a time when the White House was playing down threats from the virus, intelligence officials from the C.I.A. painted an early picture of the outbreak’s geopolitical implications.
The next day, Feb. 13, Mr. Burr sold off 33 different stock holdings, worth a collective $628,000 to $1.7 million, liquidating a large share of his portfolio.
At least four other senators, as well as about two dozen House lawmakers, also sold some of their financial holdings in the same period. Like Mr. Burr, the other senators said they did nothing wrong and were not acting on information unavailable to the general public.”
Powerful democratic senator Dianne Feinstein was one of the traders. So were the valiant patriots James Inhofe, R-OK (climate science denier and God believer), Kelly Loeffler, R-GA, and David Perdue, R-GA. All claim innocence. Are they all innocent? Probably not in the spirit of the law, but probably in the letter of the law. The letter of the law requires proof of intent to commit an illegal criminal act beyond a reasonable doubt.
Why do you think that? Good question. Glad you asked. Here’s why: Smart white collar crooks do not leave a paper trail and rely only on trusted people to help them commit their crimes, usually ones bound by secrecy agreements. I've tried to get this point about plausible deniability across before. In the case of Burr, he claims he acted only on publicly available information, but what he was saying in public contradicted what he was saying in private. Absent contrary tangible (paper) or witness evidence, that is enough to get the crook Burr and his corrupt colleagues in congress off the hook.
From what I can tell, proof of intent to commit an illegal insider trading act beyond a reasonable doubt is impossible in about 99.999% of cases. Not 99.9% (one in a thousand). I estimate 99.999% (one in a hundred thousand) inside traders ever get caught. For example, the last time I looked about 15 years ago, the SEC would not even bother to investigate any single trade that netted less than $100,000 per trade. All crooks had to do was break their trades up into $100,000 increments and almost always avoid investigation and even less common prosecution and even less common conviction. Congress makes damn sure that law enforcement is crippled by limited budgets to enforce laws. That congressional anti-rule of law, pro-thief attitude applies in spades to the IRS which is now so crippled in its law enforcement budget that about $600 billion/year in tax cheating is allowed to go unpunished (the net tax gap is a topic for a different discussion).
In other words, congress and especially the Trump Party (formerly the GOP) is pro-crime and pro-theft by certain white-listed segments of society including members of congress, rich people who support Trump and business owners who support Trump.
And there's this: Burr is asking for an ethics investigation. He should. Now that Trump has neutered ethics in government, Burr is about 99.999% certain to be found pristine and good to go. If Burr asked for a DoJ investigation, it is about 99.9999% certain that he would be found pristine and good to go. After all, attorney general Barr works for Trump and Trump wants to protect his Trump Party supporters in congress so Barr will absolve all of them, except maybe Feinstein since she is a stinking democrat.
Miscellaneous
Sean Hannity denied calling coronavirus a hoax nine days after he called coronavirus a hoax. Lying obviously doesn't faze liars. Lying is legal and that is good enough.
The president fired the head of the US pandemic response unit after she stated publicly in 2018 that the US was not prepared for a pandemic. I suspect that once he heard that, coupled with the fact that she was an Obama invention, he flew into a mindless Trump rage and fired all of them. (don't have the link)
As what is probably part of his ongoing disloyalty purge in the federal government, the president has fired the acting director of the National Counterterrorism Center. Some insiders see it as a purge of career professionals in a function set up after 9/11 to protect the nation from further attacks. This is more evidence that the president takes his orders from Moscow.
Before the virus outbreak, multiple warnings went ignored: “That scenario, code-named “Crimson Contagion” and imagining an influenza pandemic, was simulated by the Trump administration’s Department of Health and Human Services in a series of exercises that ran from last January to August. The simulation’s sobering results — contained in a draft report dated October 2019 that has not previously been reported — drove home just how underfunded, underprepared and uncoordinated the federal government would be for a life-or-death battle with a virus for which no treatment existed.”
Right now, it can seem like the whole world is coming undone. Between killer viruses, despotic leaders, a questionable economy and a climate on tilt it can be hard to stay optimistic about the future.
We're not in a different place than we are usually. Humans have always existed on the precipice of disaster. It's just that usually we don't notice the danger. We only notice it when life thrusts it into stark relief, like right now.
But for all of this, we have two eventualities - move forward or destroy ourselves.
So far, despite our best efforts, we have yet to destroy ourselves.
Instead, we struggle, we rise, and then we do it all over again.
The odds are with humanity. I wouldn't bet against us.
Experts have their opinions. The public has its opinion. They sometimes diverge a lot.
One poll of experts ranked the president as deal last in terms of "greatness" and most "polarizing". Another ranks him as 3rd from the bottom. That is a basis to argue he is the worst US president ever. By contrast, many of his supporters believe that he is the greatest president ever, even better than Ronald Reagan and lightweights like Washington and Lincoln.
There you have it reality fans. He is either the worst or best. If there is opinion he is somewhere in between, I'm not aware of it, but I am sure it exists.
So, as the president lies about how great he is, especially now in how he fearlessly deals with the Covid-19 pandemic, it helps to keep in mind the extraordinary incompetence that experts see in him and his presidency. Obviously, some or most of the president's supporters will reject experts and their data as idiots, liars, socialists, dirty commies, lying grovelers for grant money, democrats, fake news, fake science, etc. We've seen this play before, but just with different actors. The play is called climate science denial, vaccine science denial, flat Earth belief, faked Moon landings knowledge and other similar crackpottery.
According to a new poll released by ABC News/Ipsos on Friday, and posted by Politico today,
"A majority of Americans now approve of President Donald
Trump's handling of the coronavirus pandemic, according to a new survey, as the
administration has issued stricter federal guidelines in recent days and the
president has adopted a more public-facing role in combating the disease.
An ABC News/Ipsos poll released Friday reports that 55 percent of respondents approve of Trump's
management of the public health crisis, while
43 percent disapprove. The latest figures represent a boost in the president's rating from the previous iteration of
the survey, published one week ago,
which showedonly 43 percent approval for Trump and 54 percent
disapproval."Full article here
In light of the limited supplies of critical medical equipment and PPE gear on hand, and with an ever-increasing demand, that’s quite a reversal of political fortune, I’d say.So…
Question:
Do you believe Donald Trump will be re-elected as POTUS?Should he be? Why/why not? Let's discuss.
Case law: the law as established by the outcome of former cases, sometimes called common law or judge made law.
Statutory law: written laws that express the will of the legislature, as distinguished from case law and constitutional law.
Constitutional law: the law as established by federal and state constitutions and intended to reflect the will of the drafters.
Context
This book explains the early origins of what has become the bitter modern liberal vs conservative dispute over what is constitutional and what isn't. The American legal tradition, “American realism” was that judges changed laws as society changed. The system worked very well, until conservatives began to understand in the 1950s and 1960s that American society was changing in ways they bitterly opposed.
Court decisions to require public school desegregation and to uphold civil liberties were seen as outright tyranny that had to be stopped at all costs. Those bitterly hated decisions were a reflection of the American realism legal tradition. In the 1970s and 1980s, the right invented terms like originalism and textualism to give their legal arguments (reflections of conservatism) and to begin to focus their attacks on the American realism tradition in the 1980s and 1990s. In essence, American realism is a direct threat to conservative political and social ideology. Conservative ideology is anti-democratic, authoritarian, hostile to civil liberties and the rule of law, except when it serves conservative ideological agendas.
Conservatives point to their invented originalism, textualism and so forth as accurately reflecting the will of the Founders to give gravitas to their arguments. The fundamental problem with that is that history makes very clear the Founders were locked in bitter disagreement over what is basically the same things that conservatives and liberals fight over today, e.g., big, strong vs small weak central government. The Founders never resolved their disagreements in their lifetimes. American realism reflected the social change of growing public acceptance of a big, strong central government. Conservatives now fight tooth, claw and fang to stop this social change. They rely heavily on dark free speech and anti-democratic tactics to wage this desperate war.
This book puts much of the modern left vs right fights in context. It is important to know something about this book or the subject matter it discusses.
Book review
In his 1949 book, An Introduction to Legal Reasoning, legal scholar and former US Attorney General, Edward H. Levy, describes his vision of the legal process, which is called American Legal Realism (ALR). His book begins with this opening paragraph:
“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.”
Levy is making a point that (i) legal reasoning and decision-making is not a simple application of a law to the facts of a controversy, (ii) ambiguity in the language of laws and the US Constitution is unavoidable but necessary for civil society, and (iii) the law changes over time to accommodate social change. Those three points are central to ALR, which is a process of evolution of the law over time. Although there are differences among scholars about exactly what ALR is, it is generally sees legal reasoning as a process where judges usually, but not always, decide a case on nonlegal grounds and then justify or rationalize their decision by reference to legal doctrines and the language of the applicable law.
Realism vs. formalism: The ALR vision of legal reasoning stands in contrast to legal formalism. Formalism holds that the process is a judge first resorting to the law and then applying the facts of the case to arrive at a decision in a case. Formalism recognizes that many legal principles are needed to account for all the decisions judges make. The core belief is that despite the complexity, there is an underlying logic to the myriad legal principles. The principles are both logically straightforward and easily applied to each case. Clearly, the quoted paragraph rejects formalism as the mechanism that applies to how judges decide cases. Former Supreme Court Justice Antonin Scalia was a prominent proponent of the branch of formalism called textualism.
Based on this reviewer’s professional experience with the law, judges decide on whatever process or mechanism they want when circumstances permit. That is particularly true for judges who are political ideologues and the issues at stake are core constitutional principles. Sometimes a law is not significantly ambiguous and the facts of the case make it all but necessary to decide on the basis of formalism. Most of the time, those cases settle out of court before the parties start formal in-court proceedings. Winners and losers in those cases are usually easy to spot, and going to court expends time and money. But for cases that do wind up being formally litigated, the process that ALR envisions is probably the process by which judges usually decide a case.
Levi was the first to recognize that if one ignores the easy cases, the distinctions between case law, statutory and constitutional cases decrease dramatically. That insight offered a different way to envision how the legal reasoning process actually operates.
Of the two opposing views, ALR is far better than formalism at accounting for the incremental changes in how laws are interpreted overt time. The changes tend to (i) accord with changing social norms, technology and the realities of how commerce is conducted, and (ii) the social impacts of changing technology and commerce. Levi is justified in asserting that “the mechanism is indispensable to peace in a community.”
A three-step process in four steps: Levi describe a three-step process of “reasoning from case to case” or “reasoning by example” by which the law evolves:
“The steps are these. Similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.”
But after that, as society, technology and commerce change, the rule of law can become obsolete and lead to absurd or unintended results. In cases where a rule of law is made without considering larger principles or unforeseeable circumstances, things that are very easy to do, if not necessarily inherent, the rule usually winds up being short-sighted in some way. That raises the need to refine or change the rule, sometimes to the point of it no longer being discernable in cases that arise years or decades later. In some cases, a rule of law simply fades into oblivion. For Levi, reasoning by analogy is the main way that this sort of flexibility in the law evolves and adapts to new circumstances.
In essence, the rejection, change or refinement of a rule of law amounts to a fourth step that can constitute a new rule of law, a refinement of the first rule, or a complete rejection of the first rule.
Statutory and constitutional ambiguity: As is apparent from the foregoing, some or a great deal of ambiguity in statutory laws and the constitution is a necessary component for ALR to work as it does. Levi paints a picture of the legislative process as necessarily an ambiguity-creating machine and judges apply legal reasoning to try to specify what a law’s language actually means in a given situation:
“We [judges] mean to accomplish what the legislature intended. . . . . The difficulty is that what the legislature intended is ambiguous. In a significant sense there is only a general intent which preserves as much ambiguity in the concept used as though it had been created by case law. . . . . For a legislature perhaps the pressures are such that a bill has to be passed dealing with a certain subject. But the precise effect of the bill is not something upon which the members have to reach agreement. . . . . Despite much gospel to the contrary, the legislature is not a fact-finding body. There is no mechanism, as there is with a court, to require the legislature to sift facts and to make a decision about specific situations. There need be no agreement about what the situation is. The members of the legislative body will be talking about different things; they cannot force each other to accept even a hypothetical set of facts. . . . . Moreover, from the standpoint of the individual member of the legislature there is reason to be deceptive. He must escape from pressures at home. . . . And if all this were not sufficient, it cannot be forgotten that to speak of legislative intent is to talk of group action, where much of the group may be ignorant or misinformed.”[1]
Similarly, Levi paints a written constitution as another unending source of ambiguity:
“In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. . . . . The problem of stare decisis [legal precedent] where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. . . . . The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive.”
Obviously, for formalists, this vision of the Constitution is completely wrong. For those people, the Founder’s intent can clearly be found by applying formalist analytical techniques, such as the textualism that Scalia and others advocate. Despite that, Levi is clearly correct to say that the US Constitution is often ambiguous and there is no mechanism to definitively decide. On this point, formalism gets it wrong. And therein lies one of the bases for difference of opinion that is tearing American society apart today.
If one looks at the disputes the Founders never resolved among themselves in their lifetimes, one can see the origins of both ALR and formalism, both of which still compete for supremacy in both the law and in politics. From this reviewer's point of view, ALR is much better suited to modern American society and the economic and technological challenges this country faces. Given the reality that the legislative process is too slow, too ambiguous and driven more by re-election than courageous governance, there seems to be no workable choice but to resort to some form of realism.
Footnote:
1. Commenting last September on the legislative process and why Supreme Court nominations are so bitterly contentious, radical right conservative Senator Ben Sasse (R-NE) said this during the Senate confirmation hearing for Brett Kavanaugh: “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”
This is part of Sasse's relentless anti-government rhetoric, but he has a good point about congress being incompetent when it comes to doing its job.
