October 2020

Packing the Court

Among all the victims of modern American society, perhaps language is the most critical. For without an accepted means of communicating, there is little to no hope that any other problems can be solved. Unfortunately, Americans have become careless, if not outright lazy, in their use of language. It is in this context that we need a correct definition and understanding of packing the court.

Within hours of Justice Ruth Bader Ginsburg’s death, President Trump and Senate Majority Leader Mitch McConnell stated they would fill her seat as soon as possible—before the election. In response many people have suggested that Democrats should add seats to the high court if they win both the Senate and the White House in the current election. That was met with hysterical cries. The Democrats want to pack the court!

Of course, the Constitution does not designate the number of seats on the Supreme Court. That is left for Congress to determine. Over the history of the United States the number has ranged from five to ten. The current configuration of nine was set in 1869.

It has been argued by some that there is a difference between packing the court and stacking the court. Under this distinction, adding seats to the Supreme Court would be “packing”, while loading the lower courts with right wing ideologues is “stacking.” The distinction is nominal, at best. Although it does allow for a comparison between stacking the court and stacking a deck of cards. An astute observer would recognize that both are cheating. More substantively, though, the terms packing and stacking are interchangeable. But what is packing?

Over the last three and a half years Mitch McConnell has directed the Trump Administration’s efforts to pack the federal bench, often with unqualified individuals who are chosen simply for being young ideologues who will do the bidding of the Republican Party for decades to come.

McConnell, of course, has done more than just pack the lower courts. First he blocked President Obama’s legitimate and moderate appointment of Merrick Garland to the Supreme Court. Secondly, McConnell and Trump moved with unparalleled rapidity to fill the seat left vacant by Ginsburg’s death. In fact, Trump was uncharacteristically honest in stating his reason. Looking back to 2000 for inspiration, he said he wanted the Supreme Court to decide the 2020 election regardless of the peoples’ vote.

What gets lost in the shuffle of accusations about Democrats packing the court is the reality that Trump is doing exactly what every other dictator does in an attempt to retain power. He is packing all federal courts. It is classic authoritarianism. You know. The what “can never happen here” but is actually happening here. It is only when the courts are packed with Trump appointees that he can take the next steps toward establishing an autocracy and dismantling the Constitution of the United States.

The issue regarding a new SCOTUS appointment is not judge Barrett’s qualifications. Unlike many of the judges Trump and McConnell secured for the lower courts, she is competent. The issue is the demise of democracy. It is neither extreme nor hyperbolic to declare that if a Republican dominated Supreme Court appoints Trump president, then American democracy is dead.

Another reason to fear Trump’s packing of the courts is the reality that the federal courts—all the way up to the Supreme Court—are becoming less and less representative of the American people. Indeed, they are simple out of touch with reality. From the Citizens United decision to the gutting of the Voting Rights Act, the American people are being dismissed from the democratic process. Three Trump appointed appeals judges sided with Texas governor Abbott’s decision to limit ballot drop off boxes to a total of one per county. Note that Harris County which includes the city of Houston has a population of more than 4 1/2 million people and covers a territory of 1,777 square miles.

What happens to America when we can no longer rely on the courts to guarantee the rights of all our people? Even before Trump's presidency, America began slipping into an oligarchy. With Trump we are headed straight to dictatorship.

I can appreciate a nominee in a senate hearing not answering questions about legislative issues that might come up before the Supreme Court. Many of Barrett’s predecessors have done the same. But for a moment set aside Roe v. Wade, set aside the Affordable Care Act. Instead of legislative issues, look no further than the Constitution, itself.

No, a president cannot issue an order saying the Constitution is null and void and declare himself president for life. Not unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

Yes. The president must accept the vote of the people and commit to a peaceful transfer of power. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

No. The president does not have the authority to unilaterally delay an election. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

No. Armed people cannot intimidate voters at the polls. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution. Maybe Amy Coney Barrett is not qualified after all.

The examples above demand that Amy Coney Barrett not be confirmed to the Supreme Court. If she is confirmed, during her oath of office she will swear to defend the Constitution of the United States. But her testimony in the senate hearing room suggests otherwise. One might conclude that either there are two Amy Coney Barretts or, like the president she seems to admire, there is only one Amy Coney Barrett who does not speak the truth.

If she is confirmed Trump and McConnell will have succeeded in packing the court. If she is confirmed the Democrats will have no choice but the expand the court. Not pack it. Expand and reform the court so that it is more representative of the American people.

The Soul of a Nation

Former vice president Joe Biden did not decide to run for president in reaction to policy differences with Donald Trump. Those differences always exist, sometimes even within the same political party. Biden chose to run because he saw the destructive things Trump was doing to the core principles of the United States; the damage he was inflicting on the country’s standing and reputation in the world.

There are innumerable examples, stacked one upon another, making it nearly impossible to grade them from bad to worse to worst. But arguably the two most significant were Trump’s equivocating on the issue of racial hatred, (the now famous “There were good people on both sides” statement), and the ripping of toddlers from their parents and then imprisoning these little children in cages. The latter example can only come from a man who has no soul. And if a nation allows that action to continue, the only conclusion is that the country is equally soul-less.

Enter Joe Biden. He began his campaign by declaring that this is a fight for the soul of the nation. He knows that we are, that we must be, better than this. Better than what Trump has made of us. He knows that America cannot survive if it continues to wallow in the gutters into which Trump has dragged us.

There are, of course, people who disagree with Biden’s policy proposals and are hesitant to vote for him. After forty-seven years in politics he is accustomed to that. He expects it. But Biden also knows that the country needs an opposition party. It is not healthy for a democracy to run by a single party. That is what we expect from countries like China, Russia and a host of other autocracies, very few of which even pretend to be democratic.

An opposition party need not agree or capitulate on every issue. The two parties must balance each other. They must compromise. They must work together for the common good. And that requires a soul.

Today Trump has remade the Republican party in his own image. And in virtually every act as president, he has demonstrated that he has no soul. That may also be the reason he has no remorse for anything he has ever done. Recall that prior to his election Trump said he had never asked God for forgiveness. That admission set up a new paradigm for irony. For these days when Americans go to churches, synagogues, mosques, temples and other houses of worship, they are greeted by a God of remorse. A God who asks the people’s forgiveness for having created Donald Trump.

Joe Biden is not deterred. He still seeks to restore the fundamental values, the basic goodness that has defined America. He knows that there have always been failures. Our history is checkered at best. We have enslaved and unjustly imprisoned our people. We have denied many groups a myriad of rights. Even today there are continuing attempts to restrict or flat out deny the right to vote—the most fundamental principle of democracy. But before Trump, we had never been a country without a soul.

One fading example of America’s goodness can be seen in the way we rally around the underdog; the way we had been accustomed to setting aside our differences when someone suffers or is in need.

When Trump was diagnosed with COVID-19, Americans of all persuasions supported him. People of faith prayed for him. Some Americans thought that this deadly diseased would enable him to empathize with the millions of other Americans who have contracted the virus; that he would understand and express sympathy for the more than 210,000 who have died. Maybe Americans are not so much good, as they are naïve.

Trump emerged from the hospital, neither human nor humbled. He puffed himself up like the rooster who thinks his crowing makes the sun rise. In Trump’s case he thinks his arrogance will cause COVID to retreat. He is not only soulless. He is heartless.

I still think Joe Biden is on to something. I still think that our country can reclaim its soul. But I also think that there is room in that soul for one negative. I would never suggest we pray that Trump dies. But maybe we don’t have to pray that he survives.

Autocracy is a Slide, not a Turn

The 2016 presidential race raised serious concerns about Donald Trump’s commitment to democracy. Some people took the extreme position of suggesting that he was another Hitler. That was never an accurate depiction. For although he tapped into similar types of populism and nationalism, he did not have the oratorical skills to match Der Führer. Hitler spoke in complete, grammatically correct German. Trump is still learning English. And failing dramatically.

On the other hand, there were clear signs that Trump tended toward an autocratic approach to government. Nothing stands as a better example than his narcissism. And two quotes serve as perfect examples.

When speaking about the so-called Islamic State, Trump said, “I know more about ISIS than the generals.” Clearly, that was an absurd claim. At the time I thought that anyone with more than a third grade education would find his statement completely untenable. I was wrong.

The other claim was far more treacherous. When speaking about Washington, D.C. and describing everything as a mess, Trump said, “I alone can fix it.” Only a dictator speaks in such exclusivity and superlatives. That, more than anything else should have set alarms screeching.

After Trump was first sworn in, a concern surfaced that he would immediately set about establishing and exercising the power he so admires in other dictators. I am hesitant to suggest that Trump is clever. He’s not. But neither is he stupid. Initially he was savvy enough to move only on the xenophobic nonsense that fueled his campaign, e.g. the Muslim travel ban. Had he attempted a power grab that early on, he would have lost the support even of the now subservient Republican senate.

Trump took gradual steps to mimic the members of the autocratic club he so desperately wants to join. But it takes time to lay a foundation, to prove that you belong, and that requires deviously simple steps. First, every autocrat must lie. Over time, of course, lies add up. But there is a tipping point after which it does not matter. No one can keep track (with the exception of the Washington Post), and the familiarity that comes with persistent untruths tends to numb even the most critical of minds.

For Trump, taxes were a good place to start lying. When queried about releasing his tax returns—as Americans have become used to in presidential politics—Trump declined, saying he could not release them because he was under audit. That was not true. But it sounded reasonable enough, so many people let it slide and some were even willing to believe his claim of being a successful businessman. Never mind that the bankruptcy of one venture after another told a different story. Trump knew that without his returns no one would know that even his famed real estate holdings, specifically his golf courses, were hemorrhaging millions.

Beyond lying, a successful dictator must disparage and demean his opponents. In this particular regard, Trump is practically phenomenal. In reality he could put many dictators to shame. For he chose to go after true American heroes, like John McCain. It was a risk. But he banked on Kool Aid being a refreshing drink. Good people could disagree with McCain's politics, but no one could question that he was a patriot and a war hero. Trump, by contrast, faked bone spurs to avoid military service. No heroism there. Then again, that was so long ago. Not unlike an airborne virus, Trump’s attacks against heroes were an hallucinogenic capable even of unmasking the totally shallow and superficial Lindsey Graham. Previously, Graham considered McCain his best friend. But apparently death and autocrats have a way of making one forget. Lindsey has a new friend, now. Only one.

In order to join any fraternity or club, one must first cozy up to its leaders or its most influential members. For Trump, secret meetings and phone calls with Vladimir Putin were followed by accepting Putin’s word over US intelligence agencies; protestations of a love affair with Kim Jong Un; warning Syria’s Assad of a missile attack so there would be no loss of life or major damage; defending the brutal Mohammad Bin Salman after his orchestrating the murder and dismemberment of an American resident. The list goes on, but it is too long for this piece.

Manipulating the populace is one of the most critical steps in an autocrat’s evolution. Trump accomplished that by holding post election campaign rallies and misgoverning by tweet. He took a page from PT Barnum, and turned it into his own circus. Barnum realized that if you keep entertaining people, no matter how absurd or extreme the illusion, no one has time to examine reality. I believe magicians call it misdirection. The rallies created the illusion of massive support that both galvanized the base and frightened any moderate Republicans. The result was that the Senate was quickly added to Trump holdings. And it cost him nothing.

Eventually, of course, people become suspicious of a burgeoning autocrat and opposition mounts. It then becomes necessary to eliminate any accountability. For his first two years Congress, controlled by Republicans, questioned nothing Trump did. But when the Democrats sought a desperately needed accountability, even enlisting the impeachment process, Trump simply refused to cooperate. He withheld evidence, ignored subpoenas and sought assistance from the conservative courts he was packing.

Delegitimizing the voting process is one of the most critical moves in the autocrat’s play book. It is the reason that various non-profits closely monitor elections around the world, usually in countries that have a history of corruption. This year, thanks to Trump and Republican legislatures around the nation, the United States of America will join the countries needing international monitoring. But whatever the outcome it will not matter, because there is an open seat on the Supreme Court.

If there had ever been an indication that Trump was trying to become another Putin, his rush to fill the seat before the election is proof positive. Unlike other dictators, however, Trump does not hide his ambitions. He unabashedly admits what he is doing. He wants his people on the Supreme Court so that they can hand him the election—an election he has promised to fight in the courts. Still, there is one final thing Trump needs to do to gain admittance into the autocratic club. And he can only accomplish it if he is reelected.

In a contested election, Trump will receive a great deal of pushback from Democrats, especially those elected members of Congress. If the Supreme Court indeed hands him the election, Trump will disband that Congress, especially if both houses are controlled by Democrats. That is the final stage of his autocratic initiation. Trump will then rank among the most despicable despots in history. The sad thing for American democracy is that the evidence was there each step of the way. When Trump succeeds, we will only have ourselves to blame.

Autocracy is not a turn. It is a slide. And we are all on it. But unlike an amusement park ride, it does not end with giggles in a splash of water. It ends with death. It ends with the drowning of democracy, itself. It ends with Republicans leading a national salute and chant, “Heil Trump!”, while Democrats are left with "Heil Dic!"