washingtonmonthly--2020-09-26--Amy Coney Barrett’s Stare Decisis Problem—And Ours

The first question of any Senator to President Trump ’ s Supreme Court nominee should be : The President has publicly said that he wants you on the Court in anticipation of a case deciding the 2020 election .
Did he say anything like that to you in your meetings with him ?
Regardless of the answer to that question , do you think that statement has increased public confidence in you , or the Supreme Court as an unbiased tribunal ?
Will you commit to recusing yourself from a 2020 election dispute because of those comments ?
Will you @ @ @ @ @ @ @ If she does not so commit , unequivocally and without wiggle room , no Democrat or Independent can vote “ aye.
” She will have left open the possibility of collusion in the crudest power grab since the Defenestrations of Prague .
She will be unqualified to serve .
By contrast , she should not be questioned about or opposed based on her religious faith or practice .
Not only are such questions always improper , but in this case , they are tactically ham-fisted : Barrett is ( as we shall all @ @ @ @ @ @ @ should stipulate now ) personally a woman of great character , well-spoken , personally kind , and devoted in her personal life to family and good works .
She seems far less prone to judicial tantrums and rhetorical abuse than the mentor for whom she clerked , the late Justice Antonin Scalia , who concealed personal charm on the bench in favor of vulgar bullying .
But there are short-term and long-term legal and constitutional questions that should be posed .
She may or may not be willing to answer , but the @ @ @ @ @ @ @ at stake in this rushed , improper appointment .
Senators will not get her to discuss specific cases or areas of doctrine .
But they should ask her for her view of precedent , which is vital since , if she lives as long as Ruth Ginsburg did , her tenure as a Justice may last until 2058 .
As Trump himself said on Friday , an appointment like this may set “ the tone of the country for 40 years , 50 years.
” A Justice Barrett seems to me likely to @ @ @ @ @ @ @ a danger to democratic self-government than was Scalia .
The reason is that—from her writings– her view of precedent seems tailor-made to allow a conservative majority to slash and burn its way through important precedents .
The judicial doctrine of stare decisis cautions judges to follow their courts ’ precedents unless there is a good reason to depart from it .
In the minds of a contemporary judge , a previous decision may be a “ wrong ” interpretation of the law .
But there are often good reasons not to disturb it @ @ @ @ @ @ @ and judges may have relied on it , or the present-day conclusion that it is “ wrong ” may be almost as doubtful an earlier court ’ s judgment that is correct .
Courts can and sometimes should overturn precedent ( think , for example , of Brown v. Board of Education ) but they should have a good reason and a persuasive explanation .
Scalia , who did more than any jurist to popularize the ide of “ originalism , ” embraced stare decisis even if , at some points , a @ @ @ @ @ @ @ the issue .
In that , he implicitly contrasted himself with Justice Clarence Thomas .
“ I am a textualist , I am an originalist , ” he said in 2008 .
“ I am not a nut.
” A judge who does not acknowledge stare decisis is a nut , and , worse , a nut with a hammer .
Thomas is one , and he has set his sights on overturning precedents in areas like freedom of the press and the right to counsel in criminal cases .
And Amy Coney @ @ @ @ @ @ @ for Thomas-style radicalism .
That is reason enough to oppose her .
I base this fear in part on a 2017 article , “ Originalism and Stare Decisis , ” published in the Notre Dame Law Review .
In it , she explains that she , as a committed “ originalist , ” believes in precedent as much as the next judge .
But then—in a move familiar to anyone who ever took Intro to Philosophy—she supports that claim by simply changing what “ precedent ” means .
“ Originalism can be understood @ @ @ @ @ @ @ she wrote— “ albeit one that does not look primarily to judicial decisions as to its guide.
” The picking of pockets begins there , and progresses thus : One “ could ” say that , but one would be grievously wrong , on the principle once cited by Abraham Lincoln , that a cow has only four legs no matter what you call the tail .
To a judge—one who is trying to serve as a judge— “ precedent ” denotes decisions on the same or similar issues by prior courts , @ @ @ @ @ @ @ there have been few actual cases .
It does not mean The Federalist , Gammer Gurton ’ s Needle , or The Letters of Heloise and Abelard .
Historical materials can inform discussion of what precedent means—but they aren ’ t law .
More to the point , judges are , by and large , singularly bad at reading these sources , and , when they do , they usually come up with a principle that oddly mirrors their present desires .
Scalia once called himself a faint-hearted originalist , ” meaning that @ @ @ @ @ @ @ to being constrained by precedent .
Barrett , by contrast , seems stout-hearted .
We can glean that from her lengthy dissent from the Seventh Circuit case of Kanter v. Barr .
That case was brought by a convicted fraudster named Ricky Kanter , who had pleaded guilty to defrauding Medicare ( he paid the government back $ 27 million ) and had served a year in prison .
Under long-established federal and state law , Kanter is barred from possessing firearms .
He argued that this was unfair to him since he @ @ @ @ @ @ @ and thus was no danger to anyone .
“ Felon in possession ” laws are of long standing and are very important to law enforcement because felons , in general , have a high rate of recidivism .
Kanter may be a choirboy when not defrauding , however , and his claim was entitled to respectful consideration .
How should a court assess it ?
To begin with , caselaw is important .
In 2008 , the Supreme Court for the first time held that there is an individual right to own handguns @ @ @ @ @ @ @ v. Heller , explicitly said it should not “ be taken to cast doubt ” on felon-possession laws .
In the decades since Heller , no federal circuit has cast doubt on them either .
By and large , courts applied the Heller language to suggest that the Second Amendment doesn ’ t cover any felons .
They have looked at the history of these laws and analyzed the benefit of keeping weapons away from those who have shown they are willing to break the law .
Barrett , however , dissented—and in @ @ @ @ @ @ @ blast a technique pioneered by Scalia and Thomas .
There was no nonsense about weighing benefits for her ; she also asserted that Heller didn ’ t really mean that felon possession laws were constitutional .
Then she concluded that history nowhere says in so many words that felons who commit “ only ” fraud can be dispossessed .
Thus , history proved that Kanter should be allowed a weapon—the implication being that every felon in America should be able to require prosecutors to prove that he or she as an individual is @ @ @ @ @ @ @ , it would add a new procedural burden to felon dispossession–another spoke in the wheel of sensible gun regulation , It is also , to my mind , a dangerously unprincipled use of “ history ” –one that furthers , coincidentally , the long-term right-wing project of disabling all gun regulation .
Nor is there any reason to think a Justice Barrett would stop there .
As the Affordable Care Act comes yet again before the Court , Barrett has made it clear that she rejects—indeed ridicules– the Court ’ s decisions upholding @ @ @ @ @ @ @ challenges .
As for issues that may arise in the next four decades , there ’ s every reason to expect that , armed with her conservative social and economic views and her supple view of “ precedent , ” she will find marvelous arguments against any progressive policy .
Her ascent bids fair to cement Trump ’ s new Court—which is the role played by the Court through too much of American history—as the place where the progressive movement goes to die .
Again , she seems like a splendid person and @ @ @ @ @ @ @ one with whom I ’ d be thrilled to lock theoretical horns over port and bickies in the Senior Common Room .
But her philosophy arises from the worst kind of academic theory and seems ill-suited to the practical work of judges .
Whether or not she promised Donald Trump to save his presidency , she has no more business being a judge than I do being Surgeon General of the United States .


washingtonmonthly--2020-09-28--Monopolies Threaten Not Just Our Economy, But Our Liberty, Too.

This past July , the House Antitrust Subcommittee summoned the CEOs of Google , Apple , Facebook , and Amazon to a hearing on monopolies in the tech industry .
At times , it sounded like any other congressional hearing .
There were grandstanding politicians , evasive witnesses , and a few moments of unintentional comedy ( Republicans and Democrats alike demanded to know how their vital campaign emails had ended up in their constituents ’ spam folders ) .
But the subcommittee chair , Rhode Island Representative David Cicilline , also struck a convincing note of urgency .
“ @ @ @ @ @ @ @ corporations already stood out as titans in our economy .
In the wake of COVID-19 , however , they ’ re likely to emerge stronger and more powerful than ever before , ” he declared .
“ Because these companies are so central to our modern life , their business practices and decisions have an outsized effect on our economy and our democracy.
” Barry C. Lynn , author and executive director of the Open Markets Institute , an antitrust advocacy group , has been sounding the alarm about monopolies for years .
@ @ @ @ @ @ @ All Masters , he insists that monopolies are ultimately a political problem .
As surely as Americans are citizens in a democracy , they are citizens in a political economy .
But with their far-reaching and subtle powers , monopolies undermine our agency in the economic sphere of life .
Indirectly , they threaten democratic self-governance , too .
Lynn champions what he calls “ the American system of liberty.
” This system , rooted in the founding generation ’ s ideas , insists on a mutually supportive relationship between economic and political @ @ @ @ @ @ @ interference , this liberty is a positive “ conception of the citizen as a producer , maker , thinker .
The citizens ’ primary responsibility , according to this line of reasoning , is to fight for the liberty to sell or otherwise share what she has created , without restriction , at fair market prices.
” An open marketplace , Lynn thinks , is a genuine public space .
It is a place where we gather as equals to buy and sell , learning valuable information about what we and our neighbors @ @ @ @ @ @ @ s also a place where we might recognize “ dangerous concentrations of economic and political power.
” A monopoly is a massive concentration of economic power .
It occurs whenever a certain firm becomes inescapable , owning a vast share of the land , or crucial infrastructure ( like a railroad ) , or technology ( like a ubiquitous search platform ) .
But the common denominator is its ability to dictate terms , to exercise arbitrary and unaccountable power over a market .
Monopoly power has grown precipitously since the 1980s , @ @ @ @ @ @ @ more subtle ones .
“ We are accustomed to thinking about the ways that monopolists harm us as buyers , ” Lynn notes , “ but the ways monopolists harm us as makers and sellers of things can be far more dangerous to us as individuals and as a society.
” Obviously , unregulated monopolies can be bad for buyers .
The monopolist can raise prices without suffering an equal loss of demand and can also prevent products from coming to market , frustrating the public ’ s interest in new or improved @ @ @ @ @ @ @ bad for buyers in less obvious ways , too .
They seem to make everything available , but , as Lynn points out , they do not treat all buyers equally .
On the contrary , a company like Uber uses “ all of the data it collects on its riders and drivers .
.
.
to set different prices or payments for the same service on a person-by-person basis.
” American law has traditionally forbidden this kind of price discrimination when it comes to access to essential services like taxi fleets and @ @ @ @ @ @ @ power over sellers .
Consider the plight of the modern chicken farmer .
“ Under the traditional system , ” Lynn writes , “ farmers raised and fed their own birds , then carried them to markets where they sold them.
” A farmer could expect his prices to reflect his customers ’ estimation of the birds .
Not so today .
Huge corporations like Tyson now stand between farmer and customer at every stage of the process .
Tyson provides loans for barns , sells the chicks and feed to the farmers @ @ @ @ @ @ @ grown birds—on a farmer-by-farmer basis .
The result , one farmer tells Lynn , is a “ kiss-ass economy.
” The sellers must please “ the master , the boss , the foreman ” instead of the public .
Americans have a long history of using antitrust and so-called common carrier laws used to forbid this kind of price discrimination , against both buyers and sellers .
Legislation like the 1910 Mann-Elkins Act prevents telephone , telegraph , wireless , and pipeline companies from charging customers differently for using the same service .
@ @ @ @ @ @ @ that once a piece of infrastructure or technology becomes so ubiquitous that people need it to do business , that thing needs to be regulated such that whoever controls it can ’ t wield their power arbitrarily .
For 200 years , Lynn marvels , “ we used such laws to ensure that any corporation that controlled access to a vital service treated every person who depended on that monopoly the same.
” Equal treatment mattered more than potential profits .
The Obama administration originally promised to revive antitrust law , in order @ @ @ @ @ @ @ poultry ] farmers get something like a fair shake.
” In the face of Republican opposition , however , it dropped the issue .
The monopolies that have the greatest reach , however , are the tech giants .
Google , Amazon , and Uber are profitable in no small part because of their power to discriminate .
They gather tremendous amounts of information about their users and then use that information to offer different users different deals depending on their individual habits .
Uber ’ s price discrimination , for example , @ @ @ @ @ @ @ Uber ’ s system is designed to carefully study your travel habits and shopping habits , your spending habits on Monday versus your spending habits on Friday , all so it can figure out how to charge you the maximum amount for any particular ride.
” They would call this system efficient ; Lynn calls it an “ unprecedented power to control and manipulate individual companies and people , and the economy as a whole.
” Monopolies influence what gets made , too .
As it grew from a local chain in the @ @ @ @ @ @ @ 2000s , Walmart not only dictated how companies should manufacture their products , it also decided what prices they could charge for items such as “ jeans , pickles , bicycles , pet food , coolers , and other consumer goods.
” Walmart may not just have been the only retailer around , but it and a few others also “ enjoyed the power to essentially govern the production and distribution of everything from medical devices to office supplies , ” according to Lynn .
If you want to make it , the @ @ @ @ @ @ @ it , before a customer ever sees it .
The tech giants have taken these strategies to a new level .
They have captured huge shares of the retail market , making or breaking small producers with their policies .
The way they undermine economic liberty , though , may go even deeper .
Lynn traces American ideas about property back to 17th-century England , when liberal thinkers like John Locke defined “ property as whatsoever a man might make or grow with ‘ his labour.
’ ” Locke imagined a yeoman farmer @ @ @ @ @ @ @ but , by mixing his labor with the earth , brought forth fruit that was his by right .
Noticeably absent , of course , was the feudal landowner .
Amazon , Facebook , and Google have , in a way , brought feudalism back .
All of us , whenever we use their websites , create the data that makes these companies rich .
We may make it unintentionally , and absentmindedly sign it over through user agreements , but we are nevertheless uncompensated producers whenever we are surfing the Internet .
@ @ @ @ @ @ @ workers .
Fewer firms mean fewer opportunities to leave one job for a better one , or to set up a bidding war for your services .
“ Wages across America today are 20 percent or more lower , relative to the economy as a whole , than a generation ago , ” Lynn points out , and “ the main reason for this decline is that the monopolists who captured control over our markets have exploited their power to drive these wages down.
” Lynn could take his point even further .
@ @ @ @ @ @ @ liberties in outrageous ways , and especially if they enjoy local monopoly .
They can track your movement on the job and monitor your social media off the job ; schedule your bathroom breaks and pressure you to donate to political candidates ; require arbitration agreements , limiting your access to the courts , and enforce non-compete clauses , effectively making themselves an absolute monopoly in your chosen profession .
Franklin Delano Roosevelt called monopolies “ a kind of private government , a power unto itself—a regimentation of other people ’ s money @ @ @ @ @ @ @ Today , even smaller firms act like private governments .
That is , with arbitrary and unaccountable power .
But can ’ t the employees quit ?
Technically , yes , but the more powerful the monopoly , the fewer options they will have once they do .
And if they can ’ t find a job , poverty awaits .
Companies wield power over their employees not only because jobs are scarce , but also because there isn ’ t much of a social safety net anymore .
Concentrations of economic power @ @ @ @ @ @ @ of American history , but the recent consolidation has a pretty clear origin point : the jurisprudence of Robert Bork .
Bork ’ s 1978 book , The Antitrust Paradox , revolutionized antitrust law .
It existed , he argued , only to promote consumer welfare .
So long as economic consolidation resulted in efficiencies ( and therefore lower prices ) , firms didn ’ t run afoul of antitrust law , no matter how much market share they controlled .
As Lynn points out , Bork replaced the traditional American citizen-as-producer with @ @ @ @ @ @ @ market , a level playing field .
Consumers want more stuff at lower prices .
That requires manufacturing , distribution , and retail on an enormous scale , and so , asks Lynn , “ who , ultimately , is the best friend of the consumer ?
The big monopolist.
” Instead of checking monopolies , Bork ’ s antitrust interpretation encouraged them .
It would be hard to overestimate Bork ’ s influence .
Reagan put Bork ’ s ideas into practice in the 1980s , and Democrats followed suit in the @ @ @ @ @ @ @ the Clinton administration ’ s antitrust suit against Microsoft ) .
After 40 years of bipartisan Borkism , Lynn says , “ never have Americans seen so much control in so few hands.
” Yes , Lynn is casting a pox on both our parties ’ houses , but his underlying message is that monopolies are not inevitable .
He ends his book with a call for renewed civic engagement , with the end goal of bringing about more active antitrust enforcement , “ structuring and regulating open markets designed to ensure an @ @ @ @ @ @ @ with one another , to protect our democracy through the careful distribution of power.
” If monopolies result from decisions in the political sphere , they can be unmade there , too .
It ’ s especially important to combat monopoly in the political sphere , Lynn thinks , because concentrated economic power threatens democratic citizenship .
The founding generation drew a tight connection between property and the powers of citizenship .
If you had the former , you could exercise the latter .
“ The reasoning here is simple , ” Lynn @ @ @ @ @ @ @ depend on any other person for sustenance , then they are able to think critically and speak freely in public .
Only someone who never need beg anything of anyone .
.
.
can be counted on to represent his own personal interests , and the interest of the public , at all times.
” Perhaps the easiest thing to do is reinvigorate antitrust enforcement .
A few zealous regulators on the Federal Trade Commission and in the Department of Justice could make a huge difference .
If an administration wanted to go @ @ @ @ @ @ @ basic income , universal basic capital ( dividends from a sovereign wealth fund ) , or even demanding that we get paid for the information we create online ( an idea endorsed by the tech wizard Jaron Lanier ) .
A one-two punch of regulation and redistribution would go a long way toward creating economic independence and undoing the past 40 years of wealth concentration .
Many antitrust laws are still on the books , and federal agencies are supposed to be looking out for the public interest .
Even so , monopoly @ @ @ @ @ @ @ difficult .
Much of the blame must lie with the tech giants themselves .
They don ’ t just engage in massive discrimination , they micro-target us , dividing Americans into smaller and smaller groups until we ’ re all alone .
Lynn fears that “ as pricing and other forms of information are personalized for each individual .
.
.
[ citizens ] are fast losing their ability to identify common interests.
” For example , digital algorithms and news conglomerates treat us as news consumers , feeding us the stories and @ @ @ @ @ @ @ the opinions we love to hate ) .
This may be titillating on an emotional level , but it leaves us without the complicated information necessary for good decisionmaking in the public sphere .
Tech monopolies seem to offer amazing new freedoms .
We can buy anything on Amazon , find any information on Google , or become friends with anyone in the world on Facebook .
But they also make the rules , like private governments .
They set prices and decide who can sell .
During the House hearing , they @ @ @ @ @ @ @ for consumers , ” because to them , that ’ s what Americans ultimately are .
Increasingly , they hold power over our lives .
What does that look like ?
In the middle of the House hearing , Georgia Democratic Representative Lucy McBath shared a story from a small bookseller .
The bookseller ’ s business grew quickly until it started to eat into Amazon ’ s textbook market share .
Then , without warning , Amazon started to restrict her sales .
She , her employees , and their dependents faced @ @ @ @ @ @ @ contributed .
.
.
much to your business , ” she pleaded in an audio clip McBath played at the hearing .
“ We followed all the rules that were set by you .
Please , just help us in owning our livelihood .
We beg you , there are 14 lives at stake .
Please , please , please help us get back on track.
” To his credit , Amazon CEO Jeff Bezos promised to get in touch with McBath ’ s office .
He would make this right !
McBath @ @ @ @ @ @ @ , and Lynn would probably agree .
If American liberty means anything , it means you shouldn ’ t have to beg a rich man for your life and livelihood in the first place .

This past July, the House Antitrust Subcommittee summoned the CEOs of Google, Apple, Facebook, and Amazon to a hearing on monopolies in the tech industry. At times, it sounded like any other congressional hearing. There were grandstanding politicians, evasive witnesses, and a few moments of unintentional comedy (Republicans and Democrats alike demanded to know how their vital campaign emails had ended up in their constituents’ spam folders).
But the subcommittee chair, Rhode Island Representative David Cicilline, also struck a convincing note of urgency. “Prior to the COVID-19 pandemic, these corporations already stood out as titans in our economy. In the wake of COVID-19, however, they’re likely to emerge stronger and more powerful than ever before,” he declared. “Because these companies are so central to our modern life, their business practices and decisions have an outsized effect on our economy and our democracy.”
Liberty from All Masters: The New American Autocracy vs. the Will of the People, by Barry C. Lynn.
St. Martin’s Press, 320 pp. Credit: St. Martin's Press
Barry C. Lynn, author and executive director of the Open Markets Institute, an antitrust advocacy group, has been sounding the alarm about monopolies for years. In his new book, Liberty from All Masters, he insists that monopolies are ultimately a political problem. As surely as Americans are citizens in a democracy, they are citizens in a political economy. But with their far-reaching and subtle powers, monopolies undermine our agency in the economic sphere of life. Indirectly, they threaten democratic self-governance, too.
Lynn champions what he calls “the American system of liberty.” This system, rooted in the founding generation’s ideas, insists on a mutually supportive relationship between economic and political liberty. More than freedom from government interference, this liberty is a positive “conception of the citizen as a producer, maker, thinker. The citizens’ primary responsibility, according to this line of reasoning, is to fight for the liberty to sell or otherwise share what she has created, without restriction, at fair market prices.” An open marketplace, Lynn thinks, is a genuine public space. It is a place where we gather as equals to buy and sell, learning valuable information about what we and our neighbors value in the process. It’s also a place where we might recognize “dangerous concentrations of economic and political power.”
A monopoly is a massive concentration of economic power. It occurs whenever a certain firm becomes inescapable, owning a vast share of the land, or crucial infrastructure (like a railroad), or technology (like a ubiquitous search platform). But the common denominator is its ability to dictate terms, to exercise arbitrary and unaccountable power over a market. Monopoly power has grown precipitously since the 1980s, and it possesses obvious dangers and some more subtle ones. “We are accustomed to thinking about the ways that monopolists harm us as buyers,” Lynn notes, “but the ways monopolists harm us as makers and sellers of things can be far more dangerous to us as individuals and as a society.”
Obviously, unregulated monopolies can be bad for buyers. The monopolist can raise prices without suffering an equal loss of demand and can also prevent products from coming to market, frustrating the public’s interest in new or improved goods. The big tech platforms are bad for buyers in less obvious ways, too. They seem to make everything available, but, as Lynn points out, they do not treat all buyers equally. On the contrary, a company like Uber uses “all of the data it collects on its riders and drivers . . . to set different prices or payments for the same service on a person-by-person basis.” American law has traditionally forbidden this kind of price discrimination when it comes to access to essential services like taxi fleets and phone networks.
An open marketplace is a genuine public space. It is a place where we gather as equals to buy and sell, learning valuable information about what we and our neighbors value in the process.
Monopolies can also exercise power over sellers. Consider the plight of the modern chicken farmer. “Under the traditional system,” Lynn writes, “farmers raised and fed their own birds, then carried them to markets where they sold them.” A farmer could expect his prices to reflect his customers’ estimation of the birds. Not so today. Huge corporations like Tyson now stand between farmer and customer at every stage of the process. Tyson provides loans for barns, sells the chicks and feed to the farmers, and decides the price of the grown birds—on a farmer-by-farmer basis. The result, one farmer tells Lynn, is a “kiss-ass economy.” The sellers must please “the master, the boss, the foreman” instead of the public.
Americans have a long history of using antitrust and so-called common carrier laws used to forbid this kind of price discrimination, against both buyers and sellers. Legislation like the 1910 Mann-Elkins Act prevents telephone, telegraph, wireless, and pipeline companies from charging customers differently for using the same service. These laws were based on the idea that once a piece of infrastructure or technology becomes so ubiquitous that people need it to do business, that thing needs to be regulated such that whoever controls it can’t wield their power arbitrarily. For 200 years, Lynn marvels, “we used such laws to ensure that any corporation that controlled access to a vital service treated every person who depended on that monopoly the same.” Equal treatment mattered more than potential profits.
The Obama administration originally promised to revive antitrust law, in order to “help America’s [poultry] farmers get something like a fair shake.” In the face of Republican opposition, however, it dropped the issue. The monopolies that have the greatest reach, however, are the tech giants. Google, Amazon, and Uber are profitable in no small part because of their power to discriminate. They gather tremendous amounts of information about their users and then use that information to offer different users different deals depending on their individual habits. Uber’s price discrimination, for example, goes far beyond surge pricing: “Uber’s system is designed to carefully study your travel habits and shopping habits, your spending habits on Monday versus your spending habits on Friday, all so it can figure out how to charge you the maximum amount for any particular ride.” They would call this system efficient; Lynn calls it an “unprecedented power to control and manipulate individual companies and people, and the economy as a whole.”
Monopolies influence what gets made, too. As it grew from a local chain in the 1980s to a retail behemoth in the 2000s, Walmart not only dictated how companies should manufacture their products, it also decided what prices they could charge for items such as “jeans, pickles, bicycles, pet food, coolers, and other consumer goods.” Walmart may not just have been the only retailer around, but it and a few others also “enjoyed the power to essentially govern the production and distribution of everything from medical devices to office supplies,” according to Lynn. If you want to make it, the “supergiant” retailer has to approve it, before a customer ever sees it.
The tech giants have taken these strategies to a new level. They have captured huge shares of the retail market, making or breaking small producers with their policies. The way they undermine economic liberty, though, may go even deeper. Lynn traces American ideas about property back to 17th-century England, when liberal thinkers like John Locke defined “property as whatsoever a man might make or grow with ‘his labour.’ ” Locke imagined a yeoman farmer who owned nothing save his own body but, by mixing his labor with the earth, brought forth fruit that was his by right. Noticeably absent, of course, was the feudal landowner. Amazon, Facebook, and Google have, in a way, brought feudalism back. All of us, whenever we use their websites, create the data that makes these companies rich. We may make it unintentionally, and absentmindedly sign it over through user agreements, but we are nevertheless uncompensated producers whenever we are surfing the Internet.
Finally, monopolies also hold power over workers. Fewer firms mean fewer opportunities to leave one job for a better one, or to set up a bidding war for your services. “Wages across America today are 20 percent or more lower, relative to the economy as a whole, than a generation ago,” Lynn points out, and “the main reason for this decline is that the monopolists who captured control over our markets have exploited their power to drive these wages down.”
Lynn could take his point even further. Even smaller companies can curtail employees’ liberties in outrageous ways, and especially if they enjoy local monopoly. They can track your movement on the job and monitor your social media off the job; schedule your bathroom breaks and pressure you to donate to political candidates; require arbitration agreements, limiting your access to the courts, and enforce non-compete clauses, effectively making themselves an absolute monopoly in your chosen profession. Franklin Delano Roosevelt called monopolies “a kind of private government, a power unto itself—a regimentation of other people’s money and other people’s lives.” Today, even smaller firms act like private governments. That is, with arbitrary and unaccountable power.
But can’t the employees quit? Technically, yes, but the more powerful the monopoly, the fewer options they will have once they do. And if they can’t find a job, poverty awaits. Companies wield power over their employees not only because jobs are scarce, but also because there isn’t much of a social safety net anymore.
Concentrations of economic power have waxed and waned over the course of American history, but the recent consolidation has a pretty clear origin point: the jurisprudence of Robert Bork. Bork’s 1978 book, The Antitrust Paradox, revolutionized antitrust law. It existed, he argued, only to promote consumer welfare. So long as economic consolidation resulted in efficiencies (and therefore lower prices), firms didn’t run afoul of antitrust law, no matter how much market share they controlled. As Lynn points out, Bork replaced the traditional American citizen-as-producer with a citizen-as-consumer. Producers need an open market, a level playing field. Consumers want more stuff at lower prices. That requires manufacturing, distribution, and retail on an enormous scale, and so, asks Lynn, “who, ultimately, is the best friend of the consumer? The big monopolist.” Instead of checking monopolies, Bork’s antitrust interpretation encouraged them.
It would be hard to overestimate Bork’s influence. Reagan put Bork’s ideas into practice in the 1980s, and Democrats followed suit in the 1990s (with the notable exception of the Clinton administration’s antitrust suit against Microsoft). After 40 years of bipartisan Borkism, Lynn says, “never have Americans seen so much control in so few hands.” Yes, Lynn is casting a pox on both our parties’ houses, but his underlying message is that monopolies are not inevitable. He ends his book with a call for renewed civic engagement, with the end goal of bringing about more active antitrust enforcement, “structuring and regulating open markets designed to ensure an absolute liberty to share ideas and goods with one another, to protect our democracy through the careful distribution of power.” If monopolies result from decisions in the political sphere, they can be unmade there, too.
Big tech companies don’t just engage in massive discrimination, they micro-target us, dividing Americans into smaller and smaller groups, until we’re all alone.
It’s especially important to combat monopoly in the political sphere, Lynn thinks, because concentrated economic power threatens democratic citizenship. The founding generation drew a tight connection between property and the powers of citizenship. If you had the former, you could exercise the latter. “The reasoning here is simple,” Lynn writes. “If citizens do not depend on any other person for sustenance, then they are able to think critically and speak freely in public. Only someone who never need beg anything of anyone . . . can be counted on to represent his own personal interests, and the interest of the public, at all times.” Perhaps the easiest thing to do is reinvigorate antitrust enforcement. A few zealous regulators on the Federal Trade Commission and in the Department of Justice could make a huge difference. If an administration wanted to go even further, it might consider universal basic income, universal basic capital (dividends from a sovereign wealth fund), or even demanding that we get paid for the information we create online (an idea endorsed by the tech wizard Jaron Lanier). A one-two punch of regulation and redistribution would go a long way toward creating economic independence and undoing the past 40 years of wealth concentration.
Many antitrust laws are still on the books, and federal agencies are supposed to be looking out for the public interest. Even so, monopoly power seems to make collective political action difficult. Much of the blame must lie with the tech giants themselves. They don’t just engage in massive discrimination, they micro-target us, dividing Americans into smaller and smaller groups until we’re all alone. Lynn fears that “as pricing and other forms of information are personalized for each individual . . . [citizens] are fast losing their ability to identify common interests.” For example, digital algorithms and news conglomerates treat us as news consumers, feeding us the stories and opinions we want to read (including the opinions we love to hate). This may be titillating on an emotional level, but it leaves us without the complicated information necessary for good decisionmaking in the public sphere.
Tech monopolies seem to offer amazing new freedoms. We can buy anything on Amazon, find any information on Google, or become friends with anyone in the world on Facebook. But they also make the rules, like private governments. They set prices and decide who can sell. During the House hearing, they routinely justified their practices as “good for consumers,” because to them, that’s what Americans ultimately are.
Increasingly, they hold power over our lives. What does that look like? In the middle of the House hearing, Georgia Democratic Representative Lucy McBath shared a story from a small bookseller. The bookseller’s business grew quickly until it started to eat into Amazon’s textbook market share. Then, without warning, Amazon started to restrict her sales. She, her employees, and their dependents faced sudden financial ruin. “We have contributed . . . much to your business,” she pleaded in an audio clip McBath played at the hearing. “We followed all the rules that were set by you. Please, just help us in owning our livelihood. We beg you, there are 14 lives at stake. Please, please, please help us get back on track.”
To his credit, Amazon CEO Jeff Bezos promised to get in touch with McBath’s office. He would make this right! McBath told him he was missing the point, and Lynn would probably agree. If American liberty means anything, it means you shouldn’t have to beg a rich man for your life and livelihood in the first place.


washingtonmonthly--2020-09-28--Whoever Owns Trump’s Enormous Debts Could Be Running the Country

At long last , the New York Times has Donald Trump ’ s tax returns .
The picture they paint , put shortly , is one of epic financial malfeasance , likely criminal tax avoidance on a massive scale , probable bank fraud , opulent living at taxpayer expense , unethical self-dealing and wild recklessness more becoming a buffoonish French aristocrat or drunken sailor than a prudent businessman .
Donald Trump ’ s approach to business and tax compliance appears to have been the same as his approach to politics : tell outrageous lies , play the government and creditors @ @ @ @ @ @ @ down today , figure out how to solve tomorrow ’ s consequences tomorrow , and already be onto the next con before anyone can catch him on the last one .
But despite its potential to land the entire Trump family in penury and jail , what is far more terrifying for the country isn ’ t what lies in his past of tax avoidance .
It ’ s the time bomb of debt that lies in Trump ’ s very near future .
It ’ s about the mystery of who owns @ @ @ @ @ @ @ the degree of secret power they may be wielding over the country .
The particulars of the Trump grift are sickening in both the details and grand scope .
It ’ s not just an issue of his class : the scale of his tax avoidance far dwarfs that of most others in his income bracket .
Despite posturing as a billionaire , Trump paid only $ 750 in taxes for the years 2016 and 2017 .
He tried to use the same trick to offload tens of millions in tax burdens by @ @ @ @ @ @ @ decades , except that the second time he actually still retained partial ownership of the underlying business , and has been in a $ 72 million battle with the IRS for a decade ever since–a battle he should lose by all rights .
His daughter Ivanka was hired as a consultant for the same work she was doing in her main job–an obvious and incredibly stupid tax-avoidance grift that could easily land her jail .
He ( likely illegally ) deducted $ 70,000 in hair care for his TV show .
And so @ @ @ @ @ @ @ , that this is just what we know of from his own personal reporting to the IRS .
It ’ s not a forensic accounting document .
These financial statements are Trump ’ s best foot forward to the government , with no knowing what criminal rot lies in the details .
Many rich tax cheats will tell the IRS they are broke while hiding their true wealth elsewhere .
But Donald Trump isn ’ t just a tax cheat pretending to be broke for the feds .
He appears to actually be @ @ @ @ @ @ @ father , squandered it on failed casino investments , offloaded the losses onto creditors , and then remade himself as a personal brand machine selling the rights to his name .
He played a fake billionaire on TV and made significant money from doing that .
Remarkably , adopting a fake reality TV show persona for public entertainment value may be the closest thing to honest work Trump has ever done .
But rather than being content to invest those proceeds wisely , he went on another foolish real estate spending spree .
@ @ @ @ @ @ @ ridiculous amounts of money–he has lost a shocking $ 315 million dollars in the last 20 years at his golf courses alone .
One fact stands out far above all the others in its staggering implications : Donald Trump is personally responsible for $ 421 million worth of loans coming due in the next few years .
Not his business .
Him .
Personally .
He has no means of repaying them .
He already refinanced his few profitable properties , and sold off most of his stocks to stay afloat .
He @ @ @ @ @ @ @ still don ’ t know to whom he owes the money .
This fact has frightening implications for public policy and national security .
Even minor debts are a frequent reason for the government to deny a security clearance , for the obvious reason that indebted and financially desperate public servants make easy marks for bribery , blackmail and potential treason .
The potentially destructive power of that sort of hold on a President of the United States is beyond comprehension .
It is the stuff of nightmares , bad spy movie plots @ @ @ @ @ @ @ if a president owed millions to the mob or to those with close ties to a foreign government , and those individuals both controlled the president ’ s financial future and knew of corrupt criminal activity .
The president might act with otherwise strange deference to said mobsters and those connected to them , and bend public policy on their behalf .
If they were tied to fossil fuel interests , the president might set the globe on fire rather than cross them .
If his creditors were simply a wealthy set of @ @ @ @ @ @ @ all financial policy on their direct behalf .
What we do know is that beginning in the late 2000s , no one would lend to Donald Trump .
His history of bankruptcies , combined with whatever horrors were on his personal and organizational financial statements , clearly made every bank run the other direction .
Every bank but one , that is : Deutsche Bank .
Donald Trump ’ s history with Deutsche Bank has always merited special scrutiny , but never more than now .
The head honchos at Deutsche would have @ @ @ @ @ @ @ financial position was .
But they lent to him anyway .
Why ?
It certainly looks even more ominous that Supreme Court Justice Anthony Kennedy ’ s son was managing the real estate division at Deutsche that lent to Trump , and that Justice Kennedy unexpectedly retired to ensure Trump could seat his replacement .
And it looks triply suspicious that Deutsche Bank has been fined and sanctioned over multiple money laundering scandals , including $ 20 billion from Russian kleptocrats .
It could all be a coincidence .
But it probably isn @ @ @ @ @ @ @ the darkest fears turn out to be unfounded , some group of individuals still owns Trump ’ s nearly half-billion dollar debts .
They likely also know where many of his financial and legal skeletons are buried .
Whoever they are , they have the capacity to be directly dictating to Donald Trump and he would be in no position to say no .
That is an untenable place for the country to be in .
The New York Attorney General has even more dirt on the finances of the Trump Organization , @ @ @ @ @ @ @ releasing even more information on Trump ’ s taxes in the coming days .
But even with just what we know now , the country faces an unprecedented policy and national security crisis .
The situation is untenable .
A man in Trump ’ s position simply can not be allowed to continue as president .
Trump has already proven himself temperamentally and morally unfit for the job .
But now , whether he wins or loses re-election , no responsible member of Congress should allow him to be re-inaugurated .
The Republican @ @ @ @ @ @ @ in his place and achieve the same policy goals .
Trump must be impeached and removed , because the country faces grave risks every day he remains in power .

At long last, the New York Times has Donald Trump’s tax returns. The picture they paint, put shortly, is one of epic financial malfeasance, likely criminal tax avoidance on a massive scale, probable bank fraud, opulent living at taxpayer expense, unethical self-dealing and wild recklessness more becoming a buffoonish French aristocrat or drunken sailor than a prudent businessman. Donald Trump’s approach to business and tax compliance appears to have been the same as his approach to politics: tell outrageous lies, play the government and creditors for fools, steal everything not nailed down today, figure out how to solve tomorrow’s consequences tomorrow, and already be onto the next con before anyone can catch him on the last one.
But despite its potential to land the entire Trump family in penury and jail, what is far more terrifying for the country isn’t what lies in his past of tax avoidance. It’s the time bomb of debt that lies in Trump’s very near future. It’s about the mystery of who owns Trump’s outlandish debts, and the degree of secret power they may be wielding over the country.
The particulars of the Trump grift are sickening in both the details and grand scope. It’s not just an issue of his class: the scale of his tax avoidance far dwarfs that of most others in his income bracket. Despite posturing as a billionaire, Trump paid only $750 in taxes for the years 2016 and 2017. He tried to use the same trick to offload tens of millions in tax burdens by claiming business losses twice in as many decades, except that the second time he actually still retained partial ownership of the underlying business, and has been in a $72 million battle with the IRS for a decade ever since–a battle he should lose by all rights. His daughter Ivanka was hired as a consultant for the same work she was doing in her main job–an obvious and incredibly stupid tax-avoidance grift that could easily land her jail. He (likely illegally) deducted $70,000 in hair care for his TV show. And so on.
Keep in mind, though, that this is just what we know of from his own personal reporting to the IRS. It’s not a forensic accounting document. These financial statements are Trump’s best foot forward to the government, with no knowing what criminal rot lies in the details.
Many rich tax cheats will tell the IRS they are broke while hiding their true wealth elsewhere. But Donald Trump isn’t just a tax cheat pretending to be broke for the feds. He appears to actually be broke. He inherited money from his father, squandered it on failed casino investments, offloaded the losses onto creditors, and then remade himself as a personal brand machine selling the rights to his name. He played a fake billionaire on TV and made significant money from doing that. Remarkably, adopting a fake reality TV show persona for public entertainment value may be the closest thing to honest work Trump has ever done. But rather than being content to invest those proceeds wisely, he went on another foolish real estate spending spree. His properties old and new are losing ridiculous amounts of money–he has lost a shocking $315 million dollars in the last 20 years at his golf courses alone.
One fact stands out far above all the others in its staggering implications: Donald Trump is personally responsible for $421 million worth of loans coming due in the next few years. Not his business. Him. Personally. He has no means of repaying them. He already refinanced his few profitable properties, and sold off most of his stocks to stay afloat. He appears short on liquidity. And we still don’t know to whom he owes the money.
This fact has frightening implications for public policy and national security. Even minor debts are a frequent reason for the government to deny a security clearance, for the obvious reason that indebted and financially desperate public servants make easy marks for bribery, blackmail and potential treason. The potentially destructive power of that sort of hold on a President of the United States is beyond comprehension. It is the stuff of nightmares, bad spy movie plots and otherwise outlandish conspiracy theory. Imagine if a president owed millions to the mob or to those with close ties to a foreign government, and those individuals both controlled the president’s financial future and knew of corrupt criminal activity. The president might act with otherwise strange deference to said mobsters and those connected to them, and bend public policy on their behalf. If they were tied to fossil fuel interests, the president might set the globe on fire rather than cross them. If his creditors were simply a wealthy set of Wall Street tycoons, he might rig all financial policy on their direct behalf.
What we do know is that beginning in the late 2000s, no one would lend to Donald Trump. His history of bankruptcies, combined with whatever horrors were on his personal and organizational financial statements, clearly made every bank run the other direction. Every bank but one, that is: Deutsche Bank. Donald Trump’s history with Deutsche Bank has always merited special scrutiny, but never more than now. The head honchos at Deutsche would have known just how desperate Trump’s financial position was. But they lent to him anyway. Why? It certainly looks even more ominous that Supreme Court Justice Anthony Kennedy’s son was managing the real estate division at Deutsche that lent to Trump, and that Justice Kennedy unexpectedly retired to ensure Trump could seat his replacement. And it looks triply suspicious that Deutsche Bank has been fined and sanctioned over multiple money laundering scandals, including $20 billion from Russian kleptocrats.
It could all be a coincidence. But it probably isn’t.
Still, even if the darkest fears turn out to be unfounded, some group of individuals still owns Trump’s nearly half-billion dollar debts. They likely also know where many of his financial and legal skeletons are buried. Whoever they are, they have the capacity to be directly dictating to Donald Trump and he would be in no position to say no. That is an untenable place for the country to be in.
The New York Attorney General has even more dirt on the finances of the Trump Organization, and the New York Times will be releasing even more information on Trump’s taxes in the coming days. But even with just what we know now, the country faces an unprecedented policy and national security crisis. The situation is untenable. A man in Trump’s position simply cannot be allowed to continue as president.
Trump has already proven himself temperamentally and morally unfit for the job. But now, whether he wins or loses re-election, no responsible member of Congress should allow him to be re-inaugurated. The Republican Party could easily put Vice President Pence in his place and achieve the same policy goals. Trump must be impeached and removed, because the country faces grave risks every day he remains in power.


washingtonmonthly--2020-09-27--Opposition to Barrett Is Not Anti-Catholic. It’s Anti-Extremist and Anti-Fundamentalist.

Even before President Trump had officially announced his nomination of Amy Coney Barrett to the Supreme Court , conservatives already had their talking points in order : all opposition to the nominee would be cast as “ anti-Catholic ” bigotry .
Conservative columnists were already proclaiming that anti-Catholic bias from the left would doom Democrats in the next election .
In reality , of course , there is no anti-Catholic bias against Barrett from the left , and the entire talking point is manufactured .
No one significant in Democratic politics has made any attacks on Barrett ’ s Catholic @ @ @ @ @ @ @ Sotomayor , the last Supreme Court Justice nominated by a Democratic president , is Catholic .
The 2020 Democratic nominee , Joe Biden , is a devout practicing Catholic .
The Democratic Speaker of the House is Catholic .
It was the Democratic Party that first elected a Catholic president , and today slightly more Catholics are Democratic voters than Republicans .
The notion that Democrats broadly or the left specifically are prejudiced against Catholics is absurd .
Indeed , by far the greatest source of anti-Catholic bigotry in America remains white protestant @ @ @ @ @ @ @ , and the proponents of various ugly conspiracy groups like QAnon , some of which snare gross old anti-Catholic theories in their nets .
Insofar as anti-Catholic bigotry exists in America , it is principally among arch-conservatives and Republicans .
Even so , much of the Democratic establishment predictably wants to avoid the entire question of Barrett ’ s personal beliefs .
It is much easier and less controversial to point out the obvious hypocrisy and desperation of Trump and his allies in attempting to force through the nomination at all .
Most @ @ @ @ @ @ @ election to replace Ruth Bader-Ginsburg on the Court , and it easier to focus on the very real policy implications of yet another far-right Federalist Society apparatchik on the highest court in the land .
A 6-3 conservative court is likely to make deeply unpopular decisions over many facets of American life–from ending Roe and the right to an abortion , to striking down the Affordable Care Act on scurrilous grounds , to tilting the balance of power even farther in favor of corporations and against workers .
It could even deliver Trump @ @ @ @ @ @ @ the will of the voters .
The Supreme Court is already stacked with devotees of an extremist legal philosophy , one that ignores both more and cultural change and judicial precedent in favor of a radically conservative interpretation of what the Founders might have meant when drafting the Constitution .
Barrett would be perhaps the most radically anti-precedent Justice on the court , with horrifying consequences across the landscape of American life .
She is an extremist ’ s extremist .
As Ruth Marcus writes at the Washington Post : But one of @ @ @ @ @ @ @ the personal moral beliefs of Supreme Court Justices from their judicial views that for both liberal and conservative justices , a personal moral ethics inflects a judicial ethics .
If you believe that the Constitution is a living , breathing document that must reflect the culture and morality of the nation for which it provides a legal structure , then your comfort with a modern moral culture will influence your interpretations .
If , on the other hand , you believe that modern society and law should conform itself to ancient scriptures and @ @ @ @ @ @ @ Adams ’ specific worldview at the time of the Constitution ’ s writing , then that too will influence your interpretation .
Given the cultural , moral and philosophical gulf between the today ’ s world and that of the 18th century when most of even America ’ s most radical revolutionaries still owned slaves ( or condoned owning them ) and treated women as less than human , a belief in absolute scriptural supremacy over human affairs and 18th century textual originalism can not help but lead to extremist , fundamentalist outcomes @ @ @ @ @ @ @ the reality is that Americans do not want extremist fundamentalists running their lives , and do not want extremist fundamentalist policy outcomes .
Americans do not want the Affordable Care Act repealed .
Two-thirds of Americans , including a plurality of Republicans , want Roe v Wade to remain in place .
Two-thirds of Americans support marriage equality for adults of all sexual orientations .
Americans are also increasingly secular and skeptical of attempts by fundamentalists to pry into their personal lives or overturn progressive policy : There is nothing anti-Catholic about this @ @ @ @ @ @ @ of all varieties , both religious and non-religious , judicial and ethical .
They want science , decency and empathy to drive policy .
And they don ’ t want radical conservatives to constrain the next two generations of policy on healthcare , climate change , and even the shape of American democracy itself–much less turn the clock back on rights and benefits they already enjoy .
Barrett ’ s nomination is an intrinsic insult not only to the memory of Ruth Bader-Ginsburg , but to the moral compass of modern America .
@ @ @ @ @ @ @ to force her onto the nation ’ s highest court , it will be incumbent on Democrats to rebalance the court in accordance with the will of the majority of Americans .

Even before President Trump had officially announced his nomination of Amy Coney Barrett to the Supreme Court, conservatives already had their talking points in order: all opposition to the nominee would be cast as “anti-Catholic” bigotry. Conservative columnists were already proclaiming that anti-Catholic bias from the left would doom Democrats in the next election.
In reality, of course, there is no anti-Catholic bias against Barrett from the left, and the entire talking point is manufactured. No one significant in Democratic politics has made any attacks on Barrett’s Catholic faith or on Catholicism generally. Sonia Sotomayor, the last Supreme Court Justice nominated by a Democratic president, is Catholic. The 2020 Democratic nominee, Joe Biden, is a devout practicing Catholic. The Democratic Speaker of the House is Catholic. It was the Democratic Party that first elected a Catholic president, and today slightly more Catholics are Democratic voters than Republicans.
The notion that Democrats broadly or the left specifically are prejudiced against Catholics is absurd. Indeed, by far the greatest source of anti-Catholic bigotry in America remains white protestant evangelicals–the very core of the Republican base, and the proponents of various ugly conspiracy groups like QAnon, some of which snare gross old anti-Catholic theories in their nets. Insofar as anti-Catholic bigotry exists in America, it is principally among arch-conservatives and Republicans.
Even so, much of the Democratic establishment predictably wants to avoid the entire question of Barrett’s personal beliefs. It is much easier and less controversial to point out the obvious hypocrisy and desperation of Trump and his allies in attempting to force through the nomination at all. Most Americans want the winner of the 2020 election to replace Ruth Bader-Ginsburg on the Court, and it easier to focus on the very real policy implications of yet another far-right Federalist Society apparatchik on the highest court in the land.
A 6-3 conservative court is likely to make deeply unpopular decisions over many facets of American life–from ending Roe and the right to an abortion, to striking down the Affordable Care Act on scurrilous grounds, to tilting the balance of power even farther in favor of corporations and against workers. It could even deliver Trump an unearned victory through court decisions defying the will of the voters.
The Supreme Court is already stacked with devotees of an extremist legal philosophy, one that ignores both more and cultural change and judicial precedent in favor of a radically conservative interpretation of what the Founders might have meant when drafting the Constitution. Barrett would be perhaps the most radically anti-precedent Justice on the court, with horrifying consequences across the landscape of American life. She is an extremist’s extremist. As Ruth Marcus writes at the Washington Post:
Also on the Barrett chopping block could be the right of same-sex couples to marry; the existence of affirmative action programs at colleges and universities; the constitutional protections against discrimination based on gender that Ginsburg made the center of her career; and environmental protections and other regulatory efforts enacted as part of the congressional power to oversee interstate commerce. Michael Gerhardt, a University of North Carolina law professor whose scholarship on stare decisis is cited extensively in Barrett’s writing, termed her approach to overturning precedent “radical.” If Barrett puts her academic views into action and four other justices go along, he said, “it will produce chaos and instability in constitutional law.”
But one of the reasons it is difficult to disentangle the personal moral beliefs of Supreme Court Justices from their judicial views that for both liberal and conservative justices, a personal moral ethics inflects a judicial ethics. If you believe that the Constitution is a living, breathing document that must reflect the culture and morality of the nation for which it provides a legal structure, then your comfort with a modern moral culture will influence your interpretations. If, on the other hand, you believe that modern society and law should conform itself to ancient scriptures and your personal wild guess as to John Adams’ specific worldview at the time of the Constitution’s writing, then that too will influence your interpretation. Given the cultural, moral and philosophical gulf between the today’s world and that of the 18th century when most of even America’s most radical revolutionaries still owned slaves (or condoned owning them) and treated women as less than human, a belief in absolute scriptural supremacy over human affairs and 18th century textual originalism cannot help but lead to extremist, fundamentalist outcomes. They are intimately connected.
And the reality is that Americans do not want extremist fundamentalists running their lives, and do not want extremist fundamentalist policy outcomes. Americans do not want the Affordable Care Act repealed. Two-thirds of Americans, including a plurality of Republicans, want Roe v Wade to remain in place. Two-thirds of Americans support marriage equality for adults of all sexual orientations. Americans are also increasingly secular and skeptical of attempts by fundamentalists to pry into their personal lives or overturn progressive policy:
There is nothing anti-Catholic about this. Americans are simply rejecting fundamentalist extremism of all varieties, both religious and non-religious, judicial and ethical. They want science, decency and empathy to drive policy. And they don’t want radical conservatives to constrain the next two generations of policy on healthcare, climate change, and even the shape of American democracy itself–much less turn the clock back on rights and benefits they already enjoy.
Barrett’s nomination is an intrinsic insult not only to the memory of Ruth Bader-Ginsburg, but to the moral compass of modern America. If an extremist minority of Republicans manage to force her onto the nation’s highest court, it will be incumbent on Democrats to rebalance the court in accordance with the will of the majority of Americans.


washingtonmonthly--2020-09-29--Hillary Was Leading in Pennsylvania. What’s Different This Time?

In 2016 , Hillary Clinton ’ s lead in Pennsylvania polls slipped away almost imperceptibly .
It never fully disappeared , making her loss by 44,292 votes a shock to prognosticators .
Collectively , more than 20 distinct polling operations surveyed a Clinton/Trump matchup in the state dozens of times .
From the first poll in August 2015 to the last , released on Election Day , Trump led in only three , all of which were outliers when they were released .
Yet , the double-digit lead Clinton typically enjoyed in late-July and early August became a high single-digit @ @ @ @ @ @ @ that , the polls bounced in a narrow band until then-FBI Director James Comey sent his infamous letter to Congress on October 28 , announcing a reopening of the Clinton email case .
Of the ten surveys , conducted entirely after the Comey letter , Clinton ’ s lead was three points or less in eight of them .
A May 2017 autopsy of the election by Nate Silver of FiveThirtyEight concluded that the Comey letter cost Clinton the election .
Undecided voters broke heavily against her , Silver concluded .
Still , @ @ @ @ @ @ @ FiveThirtyEight gave Trump a mere 11 percent chance of winning the popular vote nationwide and an 18 percent chance of winning the election .
The final HuffPost forecast for Pennsylvania had Clinton leading narrowly , 45.5 to 41.4 percent .
As of the morning of September 29 , 2020 , the average of polls at FiveThirtyEight has Joe Biden leading Trump in Pennsylvania by a similar 49.9 to 45.5 percent margin .
Is Biden ’ s lead safe ?
The short answer is no .
As Comey ’ s letter demonstrated , unexpected @ @ @ @ @ @ @ many votes , and Tuesday night brings the first of four presidential and vice-presidential debates .
Moreover , Clinton had a polling lead and still lost .
Yet , there are some reasons to believe that Biden ’ s lead is sturdier than Clinton ’ s .
Most obviously , Trump is no longer a hypothetical president but an incumbent with a four-year record voters can evaluate .
Current surveys , including the bullish-for-Biden Washington Post-ABC News poll , show Pennsylvanians are unimpressed .
An incumbent facing 49 percent strong disapproval is in @ @ @ @ @ @ @ the president is that his base isn ’ t quite as loyal as its # MAGA reputation .
In the Washington Post-ABC poll , Pennsylvanians who voted for Trump in 2016 prefer him by 92 percent to 8 percent .
But that pales compared to the transference of support from Clinton to Biden , which registers at 98 percent to one .
The discrepancy between those two results accounts for almost the entirety of Biden ’ s nine-point lead with likely voters .
A closer look shows that Trump has lost support among @ @ @ @ @ @ @ White Pennsylvanians without four-year college degrees went for Trump by more than 30 points in 2016 ; his lead with them is now down to seventeen .
Trump is severely underperforming in Western Pennsylvania , the region I pegged as most responsible for his surprise victory in my Washington Monthly piece How to Win Rural Voters Without Losing Liberal Values .
Excluding Pittsburgh ’ s Allegheny County , Trump carried this region four years ago by 29 points .
The Washington Post-ABC poll has him leading there by three .
Trump surely hopes @ @ @ @ @ @ @ Pennsylvania non-college white voters , many of whom are hunters , back into the fold as well as more affluent suburbanites .
But they know what kind of president he is .
He ’ s no longer just a guy they know from The Apprentice .
There was nothing in the 2016 election comparable to the COVID-19 pandemic , and Pennsylvanians prefer Biden 54 percent to 40 percent to tackle the issue in the future .
Yet , there has been one benefit from the president ’ s health crisis : the Republicans @ @ @ @ @ @ @ register voters while the Democrats have not .
This helps explain why the Republican Party has added 198,000 registered voters in the state since 2016 compared to 29,000 for the Democrats .
The Washington Post-ABC News survey also gives Trump an enthusiasm advantage over Biden , which should impact turnout .
On the other hand , Clinton understandably had difficulty exciting the black community to the same degree as Barack Obama , but Biden relied on black support to win the nomination and chose Kamala Harris as his running mate .
If higher @ @ @ @ @ @ @ offset an enthusiasm gap .
Biden ’ s biggest advantage over Clinton , however , is that he ’ s much less unpopular .
In 2016 , voters who disliked both candidates went heavily for Trump , but the opposite outcome has been predicted in 2020 surveys going back to the spring .
There are many fewer undecided voters today than four years ago , but the chances are they will break heavily for Biden as they often do for challengers .
This is especially true because the Democrats succeeded in having the @ @ @ @ @ @ @ in the Keystone State and other battlegrounds .
In 2016 , Jill Stein ’ s 49,941 votes exceeded the 44,292 votes separating Clinton and Trump .
In the aftermath of the 2016 debacle , Pennsylvania Democrats were split on the best approach for regaining the state in 2020 .
One camp believed the party needed to focus on turning out the urban/suburban base , and the other thought the losses in rural areas had to be held in check .
So far , it appears that Biden is doing both at once .
@ @ @ @ @ @ @ is remarkable but it also reflects nationwide Democratic strength among college-educated whites : Biden ’ s average lead in polls ( 4.4 percent ) in the Keystone State is not significantly larger than the lead ( 4.1 percent ) Clinton enjoyed at the end of the 2016 race , but he looks to be in better shape .
Of course , if Biden wins Pennsylvania we may not know that on Election Night .
According to the Washington Post-ABC News poll , nearly a third of voters intend to vote either by mail @ @ @ @ @ @ @ They skew heavily Democratic .
The mail ballots will not be tallied in advance , and there is litigation about how late these ballots can be received and still count .
This means that when results first come in , Biden may be trailing but have a huge lead in the yet-to-be-counted vote , some of which may not even have arrived yet in the mail .
Expect Trump to cry foul and try to stop the counting .
Unlike 2016 that might be his best chance of winning .

In 2016, Hillary Clinton’s lead in Pennsylvania polls slipped away almost imperceptibly. It never fully disappeared, making her loss by 44,292 votes a shock to prognosticators. Collectively, more than 20 distinct polling operations surveyed a Clinton/Trump matchup in the state dozens of times. From the first poll in August 2015 to the last, released on Election Day, Trump led in only three, all of which were outliers when they were released.
Yet, the double-digit lead Clinton typically enjoyed in late-July and early August became a high single-digit lead by late-August and early-September. After that, the polls bounced in a narrow band until then-FBI Director James Comey sent his infamous letter to Congress on October 28, announcing a reopening of the Clinton email case. Of the ten surveys, conducted entirely after the Comey letter, Clinton’s lead was three points or less in eight of them.
A May 2017 autopsy of the election by Nate Silver of FiveThirtyEight concluded that the Comey letter cost Clinton the election. Undecided voters broke heavily against her, Silver concluded. Still, on the morning of Election Day, FiveThirtyEight gave Trump a mere 11 percent chance of winning the popular vote nationwide and an 18 percent chance of winning the election. The final HuffPost forecast for Pennsylvania had Clinton leading narrowly, 45.5 to 41.4 percent.
As of the morning of September 29, 2020, the average of polls at FiveThirtyEight has Joe Biden leading Trump in Pennsylvania by a similar 49.9 to 45.5 percent margin. Is Biden’s lead safe?
The short answer is no. As Comey’s letter demonstrated, unexpected events late in the campaign can swing many votes, and Tuesday night brings the first of four presidential and vice-presidential debates. Moreover, Clinton had a polling lead and still lost.
Yet, there are some reasons to believe that Biden’s lead is sturdier than Clinton’s. Most obviously, Trump is no longer a hypothetical president but an incumbent with a four-year record voters can evaluate. Current surveys, including the bullish-for-Biden Washington Post-ABC News poll, show Pennsylvanians are unimpressed.
Biden’s support stands at 54 percent to Trump’s 45 percent among the Keystone State’s likely voters and 54 percent to 44 percent among its registered voters… …Trump’s overall approval rating in the state among registered voters is 43 percent positive and 55 percent negative, with 49 percent saying they disapprove “strongly.”
An incumbent facing 49 percent strong disapproval is in real trouble.
Another troubling sign for the president is that his base isn’t quite as loyal as its #MAGA reputation. In the Washington Post-ABC poll, Pennsylvanians who voted for Trump in 2016 prefer him by 92 percent to 8 percent. But that pales compared to the transference of support from Clinton to Biden, which registers at 98 percent to one. The discrepancy between those two results accounts for almost the entirety of Biden’s nine-point lead with likely voters.
A closer look shows that Trump has lost support among key groups and in key regions. White Pennsylvanians without four-year college degrees went for Trump by more than 30 points in 2016; his lead with them is now down to seventeen. Trump is severely underperforming in Western Pennsylvania, the region I pegged as most responsible for his surprise victory in my Washington Monthly piece How to Win Rural Voters Without Losing Liberal Values. Excluding Pittsburgh’s Allegheny County, Trump carried this region four years ago by 29 points. The Washington Post-ABC poll has him leading there by three.
Trump surely hopes he can bring some of these Western Pennsylvania non-college white voters, many of whom are hunters, back into the fold as well as more affluent suburbanites. But they know what kind of president he is. He’s no longer just a guy they know from The Apprentice.
There was nothing in the 2016 election comparable to the COVID-19 pandemic, and Pennsylvanians prefer Biden 54 percent to 40 percent to tackle the issue in the future. Yet, there has been one benefit from the president’s health crisis: the Republicans have continued to knock on doors and register voters while the Democrats have not. This helps explain why the Republican Party has added 198,000 registered voters in the state since 2016 compared to 29,000 for the Democrats.
The Washington Post-ABC News survey also gives Trump an enthusiasm advantage over Biden, which should impact turnout. On the other hand, Clinton understandably had difficulty exciting the black community to the same degree as Barack Obama, but Biden relied on black support to win the nomination and chose Kamala Harris as his running mate. If higher black turnout results, it will help offset an enthusiasm gap.
Biden’s biggest advantage over Clinton, however, is that he’s much less unpopular. In 2016, voters who disliked both candidates went heavily for Trump, but the opposite outcome has been predicted in 2020 surveys going back to the spring. There are many fewer undecided voters today than four years ago, but the chances are they will break heavily for Biden as they often do for challengers. This is especially true because the Democrats succeeded in having the Green Party candidate removed from the ballot in the Keystone State and other battlegrounds. In 2016, Jill Stein’s 49,941 votes exceeded the 44,292 votes separating Clinton and Trump.
In the aftermath of the 2016 debacle, Pennsylvania Democrats were split on the best approach for regaining the state in 2020. One camp believed the party needed to focus on turning out the urban/suburban base, and the other thought the losses in rural areas had to be held in check. So far, it appears that Biden is doing both at once. His strength in the affluent Philadelphia suburbs is remarkable but it also reflects nationwide Democratic strength among college-educated whites:
Biden is strongest in southeastern Pennsylvania. The Post-ABC poll finds the former vice president leading Trump by more than 2 to 1 in the Philadelphia area, including its populous suburbs of Chester, Delaware and Montgomery counties. Clinton won these counties together by a 14-point margin in 2016, but they have grown more Democratic since then.
Biden’s average lead in polls (4.4 percent) in the Keystone State is not significantly larger than the lead (4.1 percent) Clinton enjoyed at the end of the 2016 race, but he looks to be in better shape.
Of course, if Biden wins Pennsylvania we may not know that on Election Night. According to the Washington Post-ABC News poll, nearly a third of voters intend to vote either by mail or at an early voting site. They skew heavily Democratic. The mail ballots will not be tallied in advance, and there is litigation about how late these ballots can be received and still count. This means that when results first come in, Biden may be trailing but have a huge lead in the yet-to-be-counted vote, some of which may not even have arrived yet in the mail. Expect Trump to cry foul and try to stop the counting. Unlike 2016 that might be his best chance of winning.


washingtonmonthly--2020-09-29--From Wellstone to Weeks: The Gonzo Election in Minnesota’s Second Congressional District

Until last week , no one was paying a lot of attention to the race in Minnesota ’ s second congressional district , where I happen to live .
It pits incumbent Democrat Angie Craig , a businesswoman and the first lesbian mother to serve in Congress , against Republican Tyler Kistner , a former Marine , in a suburban district on the southern outskirts of the Twin Cities .
Moderate Republican John Kline held this seat from 2002-2016 when he saw the winds of extremism blowing through his party and chose to retire .
The same furor that led @ @ @ @ @ @ @ Trump in 2016 resulted in his mini-me , Jason Lewis , beating Craig in a three-way race by less than two points .
Craig ran against Lewis again in 2018 and won by over five points .
In other words , this is one of those quintessential suburban swing districts , which is also demonstrated by the fact that , in presidential races , it went for McCain in 2008 , Obama in 2012 , and Trump in 2016—all by the slimmest of margins .
In 2020 , Craig has been running ahead @ @ @ @ @ @ @ s Crystal Ball rating the seat “ likely Democrat , ” while the Cook Political Report has it “ lean Democrat.
” But then last week Adam Weeks , representing the Legal Marijuana Now Party in the race , died suddenly at the age of 38 .
The cause of his death is unknown at the moment—a friend said that he was in bad health after a skiing accident and struggled with an addiction .
Lest anyone assume that the Legal Marijuana Now Party would , by definition , be left-wing , Weeks @ @ @ @ @ @ @ talked into running by what a friend called “ borderline QAnon-type guys ” on a three-point platform : ( 1 ) end the war on drugs , ( 2 ) legalize marijuana , and ( 3 ) weed out corruption .
In other words , his candidacy resembled the attempts by Republicans to get Kanye West on the presidential ballot in some states .
The issue raised by the death of Weeks is that , after the 2018 election , the Legal Marijuana Now Party met Minnesota ’ s requirements for being declared @ @ @ @ @ @ @ that a law passed by Democrats following the death of Senator Paul Wellstone has been triggered for the first time .
Wellstone was killed in a plane crash just eleven days before the 2002 election .
According to Minnesota law at the time , ballots cast for him prior to his death could not be counted for Walter Mondale , who agreed to step in as the Democratic nominee .
Republican Norm Coleman went on to beat Mondale by just over two points .
Demonstrating the pitfalls of legislation via anecdote , Democrats @ @ @ @ @ @ @ delay an election until February if a candidate from a major party dies within 79 days of an election .
In light of that , MN Secretary of State Steve Simon issued a statement on the current situation in the second congressional district , saying that “ the law is clear on what happens next .
If a major party nominee dies within 79 days of Election Day ; a special election will be held for that office on the second Tuesday of February ( February 9 , 2021 ) .
” In @ @ @ @ @ @ @ second district will remain open from the end of the lame duck session in December until after the special election in February .
So when the House convenes in January 2021 , the second district will not be represented .
Rep. Craig issued a statement suggesting that “ there are still many outstanding questions ” and urged voters to “ continue to vote for the entire ballot , including for this congressional race.
” Those questions stem from the fact that the Minnesota law hasn ’ t faced legal scrutiny and contradicts a @ @ @ @ @ @ @ be held on “ the Tuesday next after the 1st Monday in November.
” If the Minnesota law is upheld , it is unclear if the delay would boost the candidacy of Tyler Kistner , who has been outraised by Craig five to one .
Kistner failed to report his fundraising totals last quarter , indicating that he had not raised or spent the $ 5,000 threshold required to file .
For all of their talk about winning in Minnesota , Republicans have been ignoring the suburbs and focusing all of their attention @ @ @ @ @ @ @ already strong .
But all of that could change if this becomes the only contest on everyone ’ s radar in February .
In the unlikely event that the presidential race ends in an Electoral College tie or some other Trump-manufactured chaos sends the election to the House , there is a chance that this seat could become relevant .
If that should happen , each congressional delegation gets one vote , with the current partisan split in Minnesota at 5-3 in favor of Democrats .
That becomes a 4-3 advantage if this @ @ @ @ @ @ @ two other congressional races in Minnesota that are currently rated as toss-ups : one Republican and one Democrat .
If both went to Republicans , their delegation would have a 4-3 advantage and Minnesota could go for Trump , regardless of the popular vote in the state .

Until last week, no one was paying a lot of attention to the race in Minnesota’s second congressional district, where I happen to live. It pits incumbent Democrat Angie Craig, a businesswoman and the first lesbian mother to serve in Congress, against Republican Tyler Kistner, a former Marine, in a suburban district on the southern outskirts of the Twin Cities.
Moderate Republican John Kline held this seat from 2002-2016 when he saw the winds of extremism blowing through his party and chose to retire. The same furor that led to an Electoral College win for Donald Trump in 2016 resulted in his mini-me, Jason Lewis, beating Craig in a three-way race by less than two points. Craig ran against Lewis again in 2018 and won by over five points. In other words, this is one of those quintessential suburban swing districts, which is also demonstrated by the fact that, in presidential races, it went for McCain in 2008, Obama in 2012, and Trump in 2016—all by the slimmest of margins.
In 2020, Craig has been running ahead of Kistner, with Larry Sabato’s Crystal Ball rating the seat “likely Democrat,” while the Cook Political Report has it “lean Democrat.”
But then last week Adam Weeks, representing the Legal Marijuana Now Party in the race, died suddenly at the age of 38. The cause of his death is unknown at the moment—a friend said that he was in bad health after a skiing accident and struggled with an addiction.
Lest anyone assume that the Legal Marijuana Now Party would, by definition, be left-wing, Weeks was a Trump supporter who had been talked into running by what a friend called “borderline QAnon-type guys” on a three-point platform: (1) end the war on drugs, (2) legalize marijuana, and (3) weed out corruption. In other words, his candidacy resembled the attempts by Republicans to get Kanye West on the presidential ballot in some states.
The issue raised by the death of Weeks is that, after the 2018 election, the Legal Marijuana Now Party met Minnesota’s requirements for being declared a “major party.” That means that a law passed by Democrats following the death of Senator Paul Wellstone has been triggered for the first time.
Wellstone was killed in a plane crash just eleven days before the 2002 election. According to Minnesota law at the time, ballots cast for him prior to his death could not be counted for Walter Mondale, who agreed to step in as the Democratic nominee. Republican Norm Coleman went on to beat Mondale by just over two points.
Demonstrating the pitfalls of legislation via anecdote, Democrats passed a bill in 2013 that would delay an election until February if a candidate from a major party dies within 79 days of an election. In light of that, MN Secretary of State Steve Simon issued a statement on the current situation in the second congressional district, saying that “the law is clear on what happens next. If a major party nominee dies within 79 days of Election Day; a special election will be held for that office on the second Tuesday of February (February 9, 2021).” In the meantime, the seat for the second district will remain open from the end of the lame duck session in December until after the special election in February. So when the House convenes in January 2021, the second district will not be represented.
Rep. Craig issued a statement suggesting that “there are still many outstanding questions” and urged voters to “continue to vote for the entire ballot, including for this congressional race.” Those questions stem from the fact that the Minnesota law hasn’t faced legal scrutiny and contradicts a federal statute which requires that House elections be held on “the Tuesday next after the 1st Monday in November.”
If the Minnesota law is upheld, it is unclear if the delay would boost the candidacy of Tyler Kistner, who has been outraised by Craig five to one. Kistner failed to report his fundraising totals last quarter, indicating that he had not raised or spent the $5,000 threshold required to file. For all of their talk about winning in Minnesota, Republicans have been ignoring the suburbs and focusing all of their attention on rural areas where the party is already strong. But all of that could change if this becomes the only contest on everyone’s radar in February.
In the unlikely event that the presidential race ends in an Electoral College tie or some other Trump-manufactured chaos sends the election to the House, there is a chance that this seat could become relevant. If that should happen, each congressional delegation gets one vote, with the current partisan split in Minnesota at 5-3 in favor of Democrats. That becomes a 4-3 advantage if this seat remains open. But there are two other congressional races in Minnesota that are currently rated as toss-ups: one Republican and one Democrat. If both went to Republicans, their delegation would have a 4-3 advantage and Minnesota could go for Trump, regardless of the popular vote in the state.