Monday, October 19, 2020

Will the dogma "that lives loudly within" Amy Coney Barrett enshrine Koch Brothers Economics?

In her use of the term dogma, Senator Diane Feinstein was discussing Catholic religious dogma with now U.S. Supreme Court nominee and apparent Catholic religious dogma adherent Amy Coney Barrett. Indeed, it is some concern relative to state laws on abortion rights, physician-assisted suicide, and gay marriage.

But what if none of this matters relative to what is important to American national economic and societal structure? What if, as expressed in The New York Times by Kochland author Christopher Leonard "Judge Barrett’s nomination is the latest battleground in [Charles Koch's] decades-long war to reshape American society in a way that ensures that corporations can operate with untrammeled freedom."

What if, indeed!

In a blog post here we have explored in great detail the Koch-funded Neoliberal political organization. In 1958, the father of the Koch Brothers and the Koch Network, Fred C. Koch, became a founding member of the John Birch Society, an American political advocacy group supporting limited government. Over the next 60 years, the Koch wealth has been used particularly by Charles Koch to achieve control of American government. The truth is that with Barrett's nomination Trump has cemented a Neoliberal majority view on the Court.

As noted in the blog post referenced above, the map below indicates which among the 50 U.S. states at the beginning of 2016 had

  1. a Democratic Governor and 
  2. Democrats in control of its legislature. 

In fact, the shift from 1976 to 2016 within the important governments of the United States, the state legislatures, the Koch Network worked hard to bring about the following changes (the Nebraska unicameral legislature is supposedly non-partisan):

After gaining control of most state governments over a period of six decades, in 2016 Neoliberalism gained ideological dominance in the White House with the election of Mike Pence as Vice-President.

 In 1991, Pence became the president of the Indiana Policy Review Foundation, a self-described free-market think tank and a member of the Neoliberal State Policy Network, a position he held until 1993.

More than half of SPN funding comes from DonorsTrust and its sister donor conduit Donors Capital Fund, the preferred funding vehicles of the Koch network of right-wing millionaires, billionaires, and foundations created to funnel money anonymously to network partners.

In 1992, Pence began hosting a Neoliberal ideology daily talk show on WRCR, The Mike Pence Show, in addition to a Saturday show on WNDE in Indianapolis. Beginning on April 11, 1994, Network Indiana syndicated The Mike Pence Show statewide.  From 1995 to 1999, Pence hosted a weekend public affairs TV show also titled The Mike Pence Show on Indianapolis TV station WNDY.

Pence won election to Congress then was elected as Governor. While Governor, in a televised interview appearance with Chris Matthews, Pence advocated eroding the teaching of science in public schools by putting religious dogma on a par with established science, accepting "creationist beliefs" as factual, and thus "teaching the controversy" over evolution and natural selection, and regarding the age of the earth, and letting children decide for themselves what to believe.

This, of course, brings us back to the issue of dogma in politics. In 1980 Charles Koch's brother, the late David Koch, credited the 1976 presidential campaign of Libertarian Roger MacBride as his inspiration for getting involved in politics: "Here was a great guy, advocating all the things I believed in. He wanted less government and taxes, and was talking about repealing all these victimless crime laws that accumulated on the books. I have friends who smoke pot. I know many homosexuals. It's ridiculous to treat them as criminals — and here was someone running for president, saying just that."

In other words, the Koch's are not conservative when it comes social issues. They simply want government totally out of business regulation and funding

Nonetheless, the Koch's have had to accept the dogmatic orthodoxy of Catholic fundamentalists and Christian evangelicals in order to advance their dogma in "these" United States (see maps above). If they must risk state laws on abortion rights, physician-assisted suicide, and gay marriage to "restore" unrestricted capitalism, so be it. In reality none of those laws would ever interfere with the activities of wealthy capitalists anyway.

Religion has a peculiar role in American history and politics. For instance, the Third Clause of Article VI of the Constitution states in part: "No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Further, the First Amendment to the U.S. Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

As perhaps half of 13 percent of Americans who know the year the U.S. Constitution was ratified are aware, the establishment of religion is a legal arrangement. It exists in Great Britain, Norway and other countries and existed in varying forms in many more countries in 1789, and in 10 of the original 13 colonies. One religion is designated as the official religion of the government. It is given preferential financial support by the government, which normally has a voice in the appointment of church officials. Frequently, the head of state must be an adherent of that religion.

The exclusion of non-Protestants from public office was practiced well into the 19th century. Disestablishment was not completed in Connecticut until 1818, in Massachusetts until 1833 and in New Hampshire until 1877. Keep that year in focus.

The Constitution forbids Congress to establish a national religion or even permit a religious requirement for someone to hold office. It also forbids congressional interference with religious practices. Or does it?

The year after 1877, in 1878, the U.S. Supreme Court, in Reynolds v. United States, ruled that a law against bigamy was not considered to be religiously discriminatory against members of The Church of Jesus Christ of Latter-day Saints (LDS Church), who were practicing polygamy up until 1890. The Court investigated the history of religious freedom in the United States and quoted a letter from Thomas Jefferson in which he wrote that there was a distinction between religious belief and action that flowed from religious belief. The former "lies solely between man and his God," therefore "the legislative powers of the government reach actions only, and not opinions." The Court determined that the First Amendment forbade Congress from legislating against opinion, but allowed it to legislate against action. Therefore, religious duty was not a suitable defense to a criminal indictment, religious actions could be regulated by law.

So ""Congress shall make no law...prohibiting the free exercise" of religion was interpreted to mean that the term "free exercise" was limited to holding an opinion.

In no way does the Constitution prohibit states from recognizing religions or religious practices nor from prohibiting religions or religious practices. Right? Well, not exactly.

Apparently in 1878 it was determined that Congress could regulate marriage practices. You see, the 14th Amendment only guaranteed religious civil rights by securing "the equal protection of the laws" for every person effectively prohibiting discrimination on the basis of religion.

But marriage laws, for instance, ostensibly don't discriminate on the basis of religion but rather on the "moral" preferences of the legislature. That puts gay marriage potentially back before the courts, as would the "right to life" put abortion and assisted suicide before the court.

If you find this confusing, you are not alone. It will be interesting to see what the Supreme Court will have to say about it all now that we've turned the Judicial Branch over to the American Catholic Church.

On the other hand, the Koch Network hopes it will result in enshrining their economic dogma.

Thursday, October 15, 2020

Yeah, we Californian's are sick of being ignored, but some troubling numbers deserve our consideration

No one has complained more than this writer about the unfairness of the membership of the U.S. Senate - two per state - and the unfairness of the Electoral College which has selected the loser of the popular vote in the cases of two of the last three Presidents.

In his opinion piece Farhad Manjoo expresses the same frustration.

And yet, I have noted that without California, Trump won the 2016 election. But I have to admit, I have avoided confronting a troubling truth about America as reflected in the chart below:

When I struggle with the idea of that Donald Trump was not elected by a majority of American voters, and then add "except for a majority of voters outside of Los Angeles and New York City", I have to confront an uncomfortable reality. That reality is the existence of a complex structural divide within the American people that barfed out all over that election.

If in 2020 the Democrats win the Presidency and a majority in the Senate, will they be able to address what Americans, other than those living in New York City and Los Angeles, really want?

It is true that the Founding Fathers did not want to create a democracy with its "majority rule" absolute mandate. We're they truly stupid or truly arrogant aristocrats? Or were they aware of something?

Yes, I too am a Californian "sick of being ignored" but those numbers bother me....

Sunday, October 11, 2020

Increasing the size of the U.S. Supreme Court to meet workload demands is 150 years overdue

Based on an exchange in the Vice-Presidential Debate and many news stories, apparently the Republicans fear Democrats will increase the size of the U.S. Supreme Court. We'll review the very changeable size of the Court as the federal judiciary grew during the nation's first 80 years.

But first, we have to acknowledge that the Republicans have resurrected a political term called "packing" which is being repeated over and over again by the press, offering no context as usual.

Did you ever wonder where the term "packing the court" regarding the U.S. Supreme Court came from?

The Judicial Procedures Reform Bill of 1937 was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court the existing Court membership had ruled unconstitutional New Deal legislation approved by Congress that was intended to help the poor and working class in distress during The Great Depression. Those from the wealthy classes in positions of influence with Congress coined the term "packing the court" as part of their opposition.

It is, of course, a politically charged term that does not reflect the history of federal court system, particularly the size of the Supreme Court.

The Judiciary Act of 1789 adopted by the first Congress established a six-member Supreme Court composed of a chief justice and five associate justices. Congress changed the Court's size seven times in its first 80 years, from as few as five justices to as many as 10.

The Act also established three court circuits which were groups of judicial districts. Each circuit court consisted of two Supreme Court justices as the three circuits existed solely for the purpose of assigning the justices to a group of circuit courts.

The number of circuits remained unchanged until the year after Rhode Island ratified the Constitution, when the Midnight Judges Act reorganized the districts into six circuits, and created circuit judgeship's so that Supreme Court justices would no longer have to ride circuit. 

As the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863. Until 1866, each new circuit (except a short-lived California Circuit) was accompanied by a newly created Supreme Court seat 

Today there are 11 numbered circuits and the D.C. Circuit which are geographically defined by the boundaries of their assigned U.S. district courts. A 13th court of appeals is the Federal Circuit, which has nationwide jurisdiction over certain appeals based on specialized subject matter.1

So, of course, based on the number of circuits we have 13 Supreme Court Justices, a Chief Justice and 12 Associate Justices. Well, no.

In order to limit the power of President Andrew Johnson, at the request of Chief Justice Chase Congress in 1866 passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. One seat was removed in 1866 and a second in 1867. But in 1869, after Grant became President, the Circuit Judges Act returned the number of justices to nine as pictured above.

The U.S. Government governing 5,308,483 people in 1800 included a Chief Justice and five Associate Justices. In 2010 when the U.S. Government was governing 312,790,973 people, the court was increased to include a Chief Justice and 312 Associate Justices, right? Well, no.

The U.S. Government governing 38,558,371 people in 1869 included a Chief Justice and eight Associate Justices. In 2010 when the U.S. Government was governing 312,790,973 people, the court was increased to include a Chief Justice and 64 Associate Justices, right? Well, no.

 Here is a map of the court circuits:

Political issues notwithstanding, nothing about the organization of the federal court system including the Supreme Court makes any sense at all if you look at the circuit district map and population chart. If nothing else, the number of appeals to the Supreme Court each year must be considerably higher than it was in 1869. That means the Court really is unable to address the demands of our legal system. And has been unable to do so for some time.

Of course, the form of government of the United States is not now and never has been a democracy nor is its organization logical related to workload. It always has been a government of battling ideologies. Consider:

  • In 1789 voting was limited to free white males who owned property. They voted on who got to be a member of the U.S. House of Representatives. The Constitution provided: "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative." That meant 59 members. Today it would mean 11,333±.
  • The Electoral College selected the President and Vice-President. Of the then 11 states in 1789 choosing the members of the Electoral College, the state legislature in five states appointed theirs, the voters in five states elected theirs, and in one state the legislature appointed some and the voters elected others. 
  • U.S. Senators were appointed by state legislatures as they were for next 100 years.

Today, in a Republic that has 50 Senators, 2 each from each state, each represents as few as 0.5 million people (Wyoming) and as many as 37 million people (California). The Senators vote to confirm Supreme Court Justices, so why would anyone expect the Court to reflect anything but the politics of the Senate?

But one thing needs to be made clear. The founding fathers did not create a Supreme Court with nine members. Really no one did, as it was a accident of post-civil-war politics. Republicans used the term "packing the court" to attack Franklin Roosevelt's new deal efforts. But nine is no mystical right number.

Really, the Court has been used as an ideological tool by politicians. And that is the way it is now, albeit currently with a heavy emphasis on Catholic religious dogma. It is not a coincidence that Republicans anticipate the Court reversing rulings on abortion and gay marriage. The fact that Republicans deny the religious tie is particularly galling. But it is obvious to anyone who looks a the biography of the court members.

The likelihood of Joe Biden, if elected, to attempt to increase the size of the court is not straightforward. If the Democrats in 2021 were to find themselves with 60+ Senators, perhaps. But just having a simple majority of two, say, is not enough because the Democratic Party has no consistent ideological or other requirements for membership except the act of registering to vote in your home county as a Democrat, which anyone can do.

But one never knows....


1The Federal Circuit is unique among the courts of appeals as it is the only court that has its jurisdiction based wholly upon subject matter rather than geographic location. The Federal Circuit is an appellate court with jurisdiction generally given in 28 U.S.C. § 1295. The court hears certain appeals from all of the United States District Courts, appeals from certain administrative agencies, and appeals arising under certain statutes. Among other things, the Federal Circuit has exclusive jurisdiction over appeals from:


Thursday, October 8, 2020

In 1960 the debate was obviously misleading. Let's make 2020 the last year for Presidential debates.

It's time to end the Presidential Debates.

The televised Presidential and Vice-Presidential Debates began in 1960 with the Kennedy-Nixon debates in 1960. It was in the second debate on October 7 that ABC's Edward P. Morgan asked Kennedy: "Senator, on Saturday you said you had always thought that Quemoy and Matsu were unwise places to draw our defense line in the Far East. Would you comment on that and also address to this question: couldn't a pullback from these islands be interpreted as appeasement?"

Clearly startled, Kennedy responded "Well, the United States has on occasion ... uh...." He then attempted to give in detail an explanation of the complex political geography of the situation while implying that the United States should only defend the islands if they were part of an overall attack on Taiwan itself. Nixon took the opening: "I disagree completely with Sen. Kennedy on this point." He went on to talk about freedom and the communists and our Nationalist allies. It was the single most important win in the debates for Nixon.

The very small islands of Quemoy and Matsu are part of a 19-island chain within artillery range of mainland China and 100 miles from Taiwan. Taiwan held these Chinese islands then and now. China wanted them back and it still does. What's important here is that this explanation is necessary because not one in ten thousand Americans would recognize the names Quemoy and Matsu because they disappeared from discussion after the 1960 election.

This writer was age 15 at the time of the debate. My reaction was: "What a simplistic waste of time."

In a 2016 post here The American Media Party Presidential candidate Donald J. Trump and the end of journalism a very shortened quote from Emmet John Hughes article 52,000,000 TV Sets--How Many Votes? published in the September 25, 1960, edition of The New York Times Magazine was offered. The following is a much longer quote:

    lt is manifestly not true that a good debater clearly qualifies as a good President or, for that matter, as anything but a good debater. By way of analogy, the Washlngton press knows (without wishing to publicize the fact too clearly) that, as often as not, a good government officlal happens to conduct a poor press conference. while his mediocre colleague may happen to have a most felicitous talent for the occasion.
    It Is perfectly true that a "debate" can be singularly revealing: a rude grimace, a brusque gesture, a hasty retort can suddenly color the whole event. But the discovery of one of these phenomena suggests a quixotic, if not reckless, test of capacity for high office.
    And as for the great issues, the unfortunate fact is that far less skill is required to blur them to clarify them ("I have been concerned a great deal about that myself***. You have stated one point of view moat persuasively, but ***. Frankly, I once held that view myself, but***. There Is much to be said for what you have said, but I honestly think that a broader perspective ***.). If and when such smoke and fog films the natlon's television screens, only a most credulous people could imagine the wispy, curling clouds of words are magically golng to assume the shape and form of a nationa1 leader.
    Will the revolution in surface method and technique, brought to political life by television make this lifegiving process more true and profound?
    If it is imagined to serve not in the search for truth but as a substitute for truth; if it drives politics toward theatrics, so that the number of politicians who imagine themselves entertainers swells to match the number of entertainers who imagine themselves politlclans; if it ruthlessly practises a kind of intellectual payola that rewards the man who can reduce the most complex issue to the silliest simplification; if it effectively invites a whole people to foreswear the labor of reading for the ease of gaping; if the merchandising of tranquilizers and sedatives is imitated or surpassed by a concept of leadership that pits party against party, orator against orator, in rival stroking and soothing of the complacencies of the citizen; if the pungent slogan asserts such sovereignty that disarmament is discussed on the level of deodorants; if all impulses conspire to glut the channels with what sells rather than with what matters; if, by all these lapses and deceits, a whole people lets itself become mentally trapped 1n a suffocating kind of isolation booth from which no sound can be heard but the voice of the huckster - the answer will be no.
    The final result will be dictated as with every great resource or device In the hands of a free people - be it fire, be it water, be it nuclear power. It will serve or it will damage - it will dignify, or it will degrade - as the wisdom and will of free men, fervent or feckless, decide.

Hughes' fears have materialized. The debate process serves only the broadcast media and the candidate most media-savvy, meaning having a shrewd understanding of how to deal with publicity and the media. In 1960 Hughes did not anticipate our device-laden world. But in 2016 a reality show host, Donald Trump, proved that the debate process is a loser for America.

Tuesday, October 6, 2020

California's success in limiting the impact of the Covid-19 pandemic - will we continue to behave?

The chart above is a simple approach to holding down the Covid-19 infection rate while avoiding the political carnival created by Donald Trump's supporters. It is reflective of the success of Governor Gavin Newsom's Administration in addressing the threat of Covid-19 to the health care system that is clearly seen in these graphs:

Statewide the hospitalization rate has been far lower than feared which was the primary policy objective in instituting and managing an initial economic shutdown followed by a controlled, limited reopening process. The "first wave" resulted in manageable case loads and a related curve in daily deaths.

Yesterday, Newsom warned of a possible second wave.

What Newsom's Administration has not yet explained in second grade English (and Spanish and Mandarin and Vietnamese and...) is that the Tier Chart at the top is self-enforcing. Residents of each county may decide the level of economic shutdown in their economy. If in any county the populace wants to believe Covid-19 is some hoax and self-distancing and wearing masks interfere with their God-given right to put others at risk, so be it. If in such a county the caseload rises, the risky behavior will cause the social-intereaction-dependant elements of the economy of the county to shutdown again. Business owners will know that the economic impact can be limited by restricting their customers' behavior. It's all right there in the Tier Chart.

How Californians wish to respond to reports of a second wave will be their choice.

On August 9 in the post Governor Gavin Newsom's California "don't get no respect" by the news media in the Covid-19 Crisis the remarkable success by California state and local government dealing with the pandemic was noted. Among the states, California's Covid-19 death rate ranks quite low given that it is the largest state in population and it's economy ranks 5th in the world:

Hopefully, California can continue to succeed until a vaccine is widely available.