Gerry Canavan

the smartest kid on earth

Posts Tagged ‘Bush v. Gore

Traditional Followup Linkpost Scenario Where I Do One The Next Day after Promising Myself I Won’t Let It Go a Whole Month Again This Time

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(Yesterday’s post here, including a bunch of “personal news” updates about recent projects. Get your library to buy The Cambridge History of Science Fiction!)

* Your Stan Lee obituaries. Excelsior. And a tiny little bit of inspiration for a guy whose 39th birthday is this week:

* One of the most important stories on the planet right now: As Brazil’s Far Right Leader Threatens the Amazon, One Tribe Pushes Back.

* When elections are no longer legitimate. The escalation in GOP conspiracy-mongering and the decision to have party leaders trumpet these theories directly, as opposed to relying on surrogates and propaganda outlets, is indeed very worrying. How fascism works.

  1. When electoral procedures lose popular legitimacy, it is nearly impossible to get that legitimacy back. Elections are one great way of building popular legitimacy, and if by assumption they no longer do, what will?
  2. Non-electoral sources of power are particularly dangerous when elections no longer legitimately empower politicians. It now falls to the very politicians who are involved in the recount to vouch for its legitimacy. The safest way to defend that legitimacy would be for the losing candidates to rebuke the President, directly and publicly. A public endorsement would be most meaningful if it were to come from, for example, DeSantis. Let us just ponder how likely that is.
  3. The downstream consequences from the loss of electoral legitimacy are nearly impossible to predict. I suspect that one consequence will be an ever-greater tolerance for executive malfeasance, on the logic that Congressional representatives and state governments lack democratic legitimacy.

* Luckily, Chuck Schumer is up to the challenge.

* Andrew Gillum appears in a documentary about Bush v. Gore, c. 2000.

* Grad school as conversion therapy.

U.S. Colleges See Drop in Foreign Students for Second Year Running.

“It’s annoying to just sit there staring at one screen for so long,” said freshman Mitchel Storman, 14, who spends close to five hours a day on Summit classes in algebra, biology, English, world history, and physics. “You have to teach yourself.”

Enough With All the Innovation.

* It has by the fall of 2018 become commonplace to describe the 499 known victims of Larry Nassar as “breaking their silence,” though in fact they were never, as a group, particularly silent. Over the course of at least 20 years of consistent abuse, women and girls reported to every proximate authority. They told their parents. They told gymnastics coaches, running coaches, softball coaches. They told Michigan State University police and Meridian Township police. They told physicians and psychologists. They told university administrators. They told, repeatedly, USA Gymnastics. They told one another. Athletes were interviewed, reports were written up, charges recommended. The story of Larry Nassar is not a story of silence. The story of Larry Nassar is that of an edifice of trust so resilient, so impermeable to common sense, that it endured for decades against the allegations of so many women. Amazing deep read on the Larry Nassar case and how he got away with his crimes for so long.

* The NRA told doctors to “stay in your lane” on guns. I’m a doctor. This is my lane.

What Happened When a Nation Erased Birthright Citizenship.

“It is almost like a punch in the gut. Like, wow, you’ve really gone this far to affect children? And it’s just like, have we sunk this low? That’s my feeling,” said the official, who could not speak on the record about the policy. Knife Salesman Very Sad About Stabbing.

Amazon’s HQ2 Spectacle Isn’t Just Shameful—It Should Be Illegal. Congrats to these hardscrabble communities who just caught a huge break.

* The poetry and brief life of a Foxconn worker: Xu Lizhi (1990-2014). And elsewhere on the Foxconn beat: How does Tony Evers affect Foxconn?

* Two hours from here: Baraboo school district condemns a photo showing a large group of students giving Nazi salute. Maybe the UW should rethink that whole history is over thing.

* California as the surface of the moon.

* Unsafe at any concentration.

* The law, in its majestic equality.

* Twilight of Harley Davidson.

* The Indus civilisation seems to have flourished for 700 years without armour, weapons, inequality or royalty. Here’s how to build a paradise on Earth.

* How AIs cheat.

* Thanks for waiting until after the election to tell anyone! Veterans haven’t received GI Bill benefits for months due to ongoing IT issues at VA. And please, make sure you update me on that horrible caravan of rapists and murderers that is heading towards our country, when you get a moment…

* And tonight, on the most dramatic Rose Ceremony of all time, we’ll finally find out who is the Attorney General.

Monday Night

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Friday Night!

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* Biocapital vs. cultural capital: Proceeds from The Immortal Life of Henrietta Lacks are going to a foundation dedicated to helping Lacks’ family, which has received none of the biotechnology profits derived from the HeLa stem cell line.

Reading ACA tea leaves at the Supreme Court. I think Scott mostly has this right; overturning the mandate would be an incorrect decision, I think, but a relatively inconsequential one; overturning ACA altogether would be radicalism on the level of Bush v. Gore, if not worse. I just don’t think Kennedy will do it.

* Nemesis watch: Questions for James Franco.

* Gynomite! has an interesting post about the dreams Emily experienced while she was in a medically induced coma several years ago.

* And Vizzini, socialist.

Politics Thursday

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* I’m shocked, shocked to find Mitt Romney caught being disingenuous about health care reform. Jonathan Chait has more lying liars on the constitutionality of the individual mandate, while Scott Lemieux explains another reason why even a radically activist Roberts court would be reluctant to declare the mandate unconstitutional:

But let’s say that Bush v. Gore vindicates the strongest form of legal realism and that we will soon see that Supreme Court justices are purely political actors. Would striking down the individual mandate ultimately advance conservative policy goals? Almost certainly not. On the one hand, it would be easy for Congress to get around the decision by simply structuring the tax differently and constitutionally, restoring the status quo. But what if Congress can’t? In some ways, this would be worse for conservatives — unless Congress was also willing to repeal very popular regulations (which even conservatives concede is a non-starter), the result will be the bankruptcy of insurance companies and a paved road to socialized insurance.

* Rachel Maddow had a pair of very striking pieces on right-wing incitements to violence last night.

* The health care reform reconciliation sidecar goes back to the House for technical reasons. It’s expected to be about a few hours delay. Incidentally, Steve Benen has issued marching orders on what we’re supposed to call the new program: ACA, the Affordable Care Act.

* The latest support for my theory that the GOP can’t hold its perma-No in the wake of Obama’s health care victory comes from Bob Corker (R-TN):

“This is so unlike the health care debate,” said Corker, noting that some of his Republican colleagues have made misjudgments on that point over the last month. “I don’t think people realize that this is an issue that almost every American wants to see passed. There’ll be a lot of pressure on every senator and every House member to pass financial regulation.”

* On the other hand, Republicans are apparently planning another Bunning-style freakout, this time starring Tom Coburn. In other Senate obstructionism news, the Republican objecting to any Senate committee business continuing past 2 PM was North Carolina’s own Richard Burr. Here’s still more on the breakdown of Senate procedure from Donkeylicious.

* How the Times‘ bias killed ACORN.

* And an amazing story from local alt-weekly Independent Weekly: N.C. eugenics survivors seek justice.

At 82 years old, Agnes is not sure she’ll live to see when or if the proposed compensation is paid. She appreciates the efforts being made in North Carolina to reconcile its eugenic past by acknowledging what she and thousands of others in our state went through. “It’s nice to know there are people out there that really care about your rights.”

Elaine, Agnes, Willis and Nial wonder why the American values of equal protection and individual liberty did not apply to them, and there are no simple answers to give them. They were caught within an ideological framework that said it’s acceptable to toss aside ethics and trample over the most basic of human rights if someone is perceived to not meet certain social expectations.

Now in her mid-50s, Elaine Riddick is one of the younger survivors of North Carolina’s eugenic sterilization program. From her apartment on the 32nd floor of an Atlanta skyrise, she has a beautiful view of the entire city. She says she has been able to obtain some measure of peace, which she attributes to her faith in God and finally letting go of the self-blame that she carried for years. Her adult son, Tony Riddick, whom she describes as “brilliant,” still lives in Winfall and owns his own computer electronics company.

Elaine has a loving boyfriend who, she says, takes good care of her and has a positive relationship with her son and siblings. Still, sometimes the cruelties from her past come back to haunt her. “Sometimes I think, what is happiness? Am I really happy? I don’t think I will ever be happy, because of what they took from me.”

Elaine was sterilized without her consent (or even knowledge) after giving birth to a child at age 14. She had been raped.

Fear the Court?

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TPM’s long “Is Health Care Reform Constitutional” post today says that Bush v. Gore and Citizens United aside the Roberts majority is unlikely to strike down any part of the health care bill.

Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence — one that all but ignores precedent. “I think the only person who shares [that view] is Justice Thomas.” said McGinnis, now a constitutional law scholar at Northwestern Law School. “It’s a very difficult argument to make under current precedent.”

Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. “The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton’s steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century,” Kmiec, now the Obama administration’s ambassador to Malta, told TPMmuckraker.

And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. “I think it’s very very unlikely that the mandate would be struck down as unconstitutional,” Kerr told TPMmuckraker.

There’s another problem with the lawsuit. Many judges are often reluctant to hear a challenge to a law until it has actually gone into effect — what legal types call a “ripeness” issue. The individual mandate won’t go into effect until 2014 — by which time factors like the composition of the Supreme Court, and the underlying politics driving the lawsuit, may well have changed.

Esenberg and Balkin Play “Is Health Care Reform Constitutional?”

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It’s time again for everyone’s favorite game, “Is Health Care Reform Constitutional?” Today’s contestants are (from the right) Marquette University Law School visiting professor Richard Esenberg and (from the left) Jack Balkin of Yale Law School. Esenberg doesn’t like the bill but thinks it will most likely be upheld: “Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate.”

Balkin, for his part, has no doubt, forcefully rebutting some of the agnosticism in the Randy Barnett piece I linked earlier in the week:

The most likely constitutional challenge will be that the individual mandate to purchase health insurance is unconstitutional because it forces people to buy insurance. Barnett omits to mention in his op-ed that the mandate is actually structured as a tax: if you don’t buy insurance, you are assessed a tax for each month you fail to pay premiums. Barnett argues that individual mandate must be unconstitutional because the government can’t require people to do anything; however, the government can make you pay taxes. It does so every year. Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.

Balkin goes on to tackle that huge elephant in the room, Bush v. Gore:

Barnett is ambiguous about whether he is actually advocating a second Bush v. Gore or simply arguing that the five Republican Justices on the Supreme Court might be shameless enough to attempt a second version of Bush v. Gore. (It’s sort of like he is saying, “nice health care bill you’ve got there; it would be a shame if anything happened to it.”)

I assume that Barnett actually isn’t advocating it. Bush v. Gore was widely derided as a travesty of legal reasoning, and the Supreme Court has avoided citing it or mentioning it in its opinions since. Whether or not the individual Justices viewed their actions this way at the time, many people saw Bush v. Gore as five conservative Justices making implausible legal arguments to benefit the interests of a particular political party which they happened to favor. And not to put too fine a point on it, Bush v. Gore helped smooth the way to the Bush Presidency, the dissipation of the federal budget surplus, the war in Iraq, presidentially approved torture, the cratering of the economy, and enormous budget deficits through reckless overspending by the Bush Administration. Bush v. Gore was, in hindsight, not only deeply flawed judicial reasoning, but led to a disaster for the country. Bush v. Gore is an example of what the Supreme Court and federal judges shouldn’t do.

If opponents of the bill are reduced to wishing for a second Bush v. Gore, they, and not their opponents, have truly given up believing in American democracy.

UPDATE: In an e-mail to me, Barnett confirms that his reference to Bush v. Gore “was simply about predicting 5 votes.” He writes: “If the conservative justices are as lawless as accused, the bill’s supporters should worry. But if not, not. Which is it?”

Is Health Care Reform Constitutional?

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Last seen reminding state agencies how they can and should legally discriminate against homosexuals, Virginia Attorney General Ken Cuccinelli is already promising to file a legal challenge to tonight’s health care bill. This of course leads us to another exciting round of “Is Health Care Reform Constitutional?” Tonight’s contestant is Randy E. Barnett of Georgetown Law, writing in the Washington Post. Barnett appears much more agnostic on the specific legal questions involved than previous contestants like Erwin Chemerinsky, focusing instead on the aggressive radicality of the Roberts majority:

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

Of course I worry about this, because I think Roberts, Scalia, Alito, and Thomas would overturn health care in a heartbeat, on whatever spurious ground presented itself. But while I don’t always agree with him, I think Kennedy has integrity, and I don’t think he would go along with it. (Have to admit, though, I’ve never been more sad to have to say “no relation”…)