The NYTimes & I Agree on Something

So, you may have read my recent post asserting that we need not focus on, much less prove, Christine Blasey Ford’s allegation of sexual assault against Brett Kavanaugh to justifiably oppose, even strongly oppose, his confirmation. Law professor Kate Shaw of the Cardozo School of Law at Yeshiva University has written an editorial for the NY Times that agrees with me in certain important ways, though she does implicitly place more importance on Blasey Ford’s allegations than I do.

She also adds something that I did not when I stressed Kavanaugh’s likely perjury during his own confirmation hearings – both his earlier hearings for a lower bench and also the current hearings on his nomination to SCOTUS. Whichever charges we deem most important – perjury over the past week or sexual assault 36 years ago – Kavanaugh is not being criminally tried and the standard of evidence thus shifts dramatically. Even the burden of proof shifts, though more subtly:

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You Are Not The Hero

While this is an unoriginal thought even though the topic is only 24 hours old, I still need to say it:

Hey, you! Author of that anonymous NYTimes editorial about how Trump is so bad but the Trump administration is so good? Yeah, you. You are not the hero.

PZ has mentioned this and gets it right, but many here remember Ed Brayton, whose writing I greatly respect, and Ed Brayton gets it wildly wrong. He says exactly the opposite:

I suspect that this kind of thing might well topple a lot of other dominoes and set off a reaction where a significant chunk of Republican politicians, advisers and thinkers decide that this is the time to take down the elephant.

And frankly, they would be heroes, and history would treat them as such.

No. When you pull out a gun on a kid playing in a park and then you put the gun back in your holster, you are not a hero. You’re Frank Freuding Garmback. You don’t get to be the hero just because you’re not Timothy Loehmann. You’re probably not a bad person, but you’re not a hero.

But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback: the editorial writer makes no effort to encourage invocation of the 25th. The editorial writer is engaged in apologia for the administration if not the President, and the anonymity, far from being a necessary capitulation to the exigencies of working for Trump, is in fact a tool to absolve every administration official and White House employee of their complicity.

Here’s the truth: the constitution gives two ways to take a madman out of the White House: impeachment and the 25th. If you recognize that governmental legitimacy and authority in the US flows from its constitution, then while you are an employee or appointee of the executive branch, you are duty bound to follow the directives of the President. To respond to dangerous incompetence for the office by subverting the authority of the sitting president rather than openly calling for the impeachment and removal of the president by congress or the invocation of the 25th and removal of the President by the Vice-President and the cabinet, you are shredding the constitution.

This author rejects, quite fully and fundamentally, the authority of the US Constitution, and defends as heroes the people who arrogate to themselves power legitimately given only to someone actually elected to executive office. These are not the actions of a hero. Nor is the use of anonymity to give cover to anyone and everyone who might possibly have written the editorial.

Quit. Invoke the 25th if you have the standing to do so. Openly advocate for the invocation of the 25th and/or the impeachment described in Article II, Section 4 and authorized in Article 1, Sections 2 & 3 (and quite possibly get fired for doing so).

Those are the ethical and effective options of someone who has put themselves in this position by seeking and accepting a job in this administration. The author chooses none of these.

And what is worse, though we don’t know the author’s identity (and, like PZ, I’m not interested in knowing it), it is most likely that anyone in a position to write such an editorial actually worked to put Trump in office. In this case, we’re not looking merely at someone who finds themselves faced with the possibility of losing a job and decides that betraying the constitution is preferable. We’re talking about someone who actively participated in the creation the very catastrophe which they want credit for partially ameliorating.

When you set a fire that burns a house and kills two people, you aren’t a hero because after the fire consumed the staircase you got two people out of a bedroom on the main floor. Yours in the blame for the deaths, not the credit for the rescue.

You are not the hero.


ETA: As is so often the case, someone else has written a pithier version of what I perseverate upon. In this case, it’s chrislawson over at PZ’s thread on this topic. Nice work, Chris. Very well done.

Edited: Enlightenment Liberal made me realize that this comes across as saying that one cannot ethically stay and subvert an administration. Rereading the post, I realized that what I was thinking at the time was not as clear in my writing as I would like: If you want to be a hero, you must stand in vocal opposition. There can be many reasons to stay in your job, keep your paycheck, and do your best to limit the harms of a Trump. But these are not the actions of a hero. So I edited the 1st sentence of the paragraph immediately following the paragraph with the Frank Garmback reference.

Originally that sentence began like so:

<blockquote>And the situation with the anonymous editorial writer is worse</blockquote>

The new sentence begins like so:

<blockquote>But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback</blockquote>

The “situation” is now spelled out as lionizing someone who came to power through participation in a rule-of-law and Constitution fetishizing party for publicly seeking praise for their rule-of-law and Constitution-subverting acts.

Hopefully the new sentence will communicate the background facts (about fetishization) that weren’t in the original post at all as well as highlighting (again) that the issue is about <i>being a hero</i>. Continuing to collect your paycheck and doing your best to subvert bad things might be ethically justifiable, depending on what you do and how you do it it might even be ethically praiseworthy to some minimal extent, but it doesn’t make you a hero.

First Amendment Issues are NOT (necessarily) Free Speech Issues

All freaky, kinky, queer women are human beings.

Not all human beings are freaky, kinky, queer women (more’s the pity).

So how is that related to the first amendment? The First Amendment (FA) protects more than just speech. It protects a total of 5 separate rights. Let’s take a look at the full text and then break it down:

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Just Listen To Wonkette, Will You: “Fuck his fucking executive order”

I (and probably will) write up an analysis of the Flores v Reno consent decree and how Trump has been using it to justify child ICE-olation and how the current executive order conflicts with the requirements of that settlement, but I don’t have the time to do the job I want to do this afternoon. So for now just listen to Wonkette:

So basically, the Trump administration wants to thumb its nose at Flores and indefinitely detain mommies and daddies seeking asylum and babies over a FUCKING MISDEMEANOR. Indeed the order literally instructs the attorney general to beg the courts to say violating Flores is OK and babies can stay in jail with mommy and daddy for A LOT LONGER, because that’s what the Trump administration is stomping its feet and clapping its hands for. Hey, maybe they can live in concentration camps, like one big happy family, at least until Trump can figure out a way to Finally Solve the whole problem!

Josh Marshall from Talking Points Memo and Wonkette agree that litigation is inevitable, and Trump is going to lose at trial on a bunch of key issues. Probably on appeal, too. But for Trump, that’s a feature. His executive order puts the lie to the idea that child ICEolation was mandated by laws passed by Democrats, but if he can lose quickly enough in court, he’ll be able to rapidly pivot to blaming unaccountable, unelected judges.

Nothing says, “I love America” like hating on the US Constitution’s Article I, Article III, Article VI clause 2, and Eighth Amendment.


Don’t Be This Wrong: Salon Spreads Serious Misinformation

In an article criticizing trump as a Sadist, Salon writer Chauncey DeVega writes a supposedly-factual introduction to what is later a very opinionated piece in such a way as to screw up a very, very important basic fact:

The United States Constitution grants President Donald Trump many powers. They include being the Chief Executive, Chief Legislator and Commander-in-Chief of the military. Not to be content with such powers, Donald Trump has also taken on other roles as well. Donald Trump is the Sadist-in-Chief of the United States of America. Cruelty and meanness are his modus operandi.

Did you catch it? DeVega would have you believe that Trump is constitutionally empowered to be the United States’ “Chief Legislator”.

No. That’s just wrong. It’s so very, very wrong it’s hard to communicate. If you’re from the US or went to grade school here (or even if you just know how to read between the lines of subtle slogans like “No More Kings”), you know that placing primary legislative powers in the hands of the chief executive is exactly what the constitutional framers did not want.

The President cannot set the congressional schedule or call a committee to order. The President cannot introduce a bill before congress or propose language revisions for an existing bill. The President cannot vote in either the House or the Senate. The President cannot amend or authoritatively interpret legislation. The president cannot employ a veto to reject parts of a bill while retaining the effectiveness of other parts: the president must accept all of a legislative act or none of it.

The President is not a legislator and Congress is not a parliament.

We are sufficiently Freuded already without giving Trump even more power. Don’t for a moment concede that the constitution gives Trump any kind of legislative power.

Unclear on the Concept: Lou Dobbs’ Constitution

Right Wing Watch quotes Lou Dobbs educating Ed Rollins (both of FOX Business) on the constitution:

LOU DOBBS (HOST): It’s an obvious, overt attempt on the part of the special counsel to subvert the president of the United States. This is —

ED ROLLINS: But again —

DOBBS: it’s that simple. By the way, let me add to that. It is also clear that Mitch McConnell and Paul Ryan are part of the conspiracy and the coordinated attack on this presidency because they say nothing. They stand silent in the face of a supra constitutional authority that is usurping the powers of the presidency.

So here’s a few questions for you, Dobbs: Has the special counsel nominated anyone to the cabinet? The federal judiciary? Has Mueller ordered the Joint Chiefs to send troops into combat? vetoed any bills passed by congress?

Please, tell me Mr. Dobbs: what powers of the presidency have been usurped? Because it’s looking an awful lot like the only constitutional powers that have been usurped are those listed in constitution of the FOXified States of America.

I swear I know more about the constitution of Australia than Dobbs knows about the constitution of the USA.