We CAN BE Better Than That!

The Senate Judiciary Committee hearings held on Thursday and Friday, September 27-28, 2018, will perhaps go down in history, not necessarily for what transpired (except for Dr. Christine Ford’s riveting testimony), but for what did not transpire and for what has not yet come to the foreground.  Of course, these were committee hearings meant to determine whether Brett Kavanaugh should receive a lifetime appointment as a Justice on the U.S. Supreme Court.  They were also meant to determine if Judge Kavanaugh met the high qualifications necessary for the Senate’s consent to that nomination.  Apparently, what they were not meant to do was to provide enough information to make such a determination.  Let me briefly list some of what they didn’t do.  They did not:

1.      Provide enough factual material to enable members to make anywhere near a substantial case for approval of this man as a Justice of the Supreme Court;

2.      Provide all present, including the TV audience, with the purpose and goals of the sessions in relation to their sworn duty; nor did they provide as preparation for the meeting, a listing of what constitutes the role of the Committee; 

3.      Provide all committee members with written or electronic materials available to the Committee; in fact, certain members of the Committee (Democrats) were denied evidentiary documents they requested and other materials (such as a map of the area where the alleged incident took place);

4.      Follow an agenda that would lead them to anything other than a subjective opinion as to whether or not this man was worthy of their approval; in other words, the chair has so much power that he can determine the agenda as they move along in the hearing, leading to a chaotic situation because there is nothing defined as to what the committee is meant to achieve by its actions; nor are those actions defined by a process, other than the innocuous rule of equal time allotted each Senator for questioning or statements;

5.      Produce any other witnesses to substantiate the claims of the two main witnesses; in other words, the opportunity to confront accusers (part of due process) was not given to either Dr. Ford or Judge Kavanaugh; nor was the probing of witnesses afforded to Committee members for their solemn role as hearing officers charged with the obligation of “advising and consenting” to this nomination.

6.       Provide an opportunity for a non-partisan approach to what is their sworn oath: to protect and defend the Constitution of the United States of America.

It is therefore my contention that what will be remembered from this debacle is what these Senators did not do: they did not define their purpose(s) clearly, and did not carry out their solemn role as fact-finders, advisors or consenters in a non-partisan manner, leading to the following negative outcomes:

• “he said; she said” stalemate that does not bring closure to the question of qualification

•  partisan bickering that leads to partisan voting that leads to confirmation or non-confirmation based on political ideology rather than on objective measures of qualification;
• a vote along party lines makes a sham of the nomination and approval process because the outcome is inevitably a Justice who can not be anything other than a biased judge; in other words: the very partisan process by which justices are chosen and confirmed equates to Justices who are pre-disposed to making decisions that are biased, unequal, partisan, and unjust.  
• a SCOTUS that cannot be other than a divided Court on social, economic and political issues because those issues are already pre-determined by partisan ideologies;
• Loss of the extremely crucial, central and determinative constitutional principle of “checks and balances” between the separate and independent branches of our form of government;

There may be other outcomes involved, but the latter is determinant in my estimation.  Under an authoritarian President -- who I have described as emulating the values, principles and philosophy of despotic rulers (in his case those of fascist ideology) -- we have seen the gradual disintegration of the concept of checks and balances.  In my opinion, Donald Trump has pushed that disintegration at a faster rate than ever before (under right-wing Presidents like Reagan, Nixon and GWB).

We have, for all intents and purposes, a “captured legislature.”  The Republican majority in House and Senate no longer speak or act on their own.  They are instead acting as agents of the President, delivering classified documents from the White House (Nunes), declaring fealty in loyalty oaths to the President (Graham), carrying out his orders on what to say and do in terms of legislation, hearings and processes (McConnell and Ryan).  More and more we hear the word “afraid” of the President and what he can do to their careers.  That is a sad commentary and a frightening prospect for the future of this country.

 

This is pervasive in the Congress and is seen in terms of the mid-term elections, and in the absolute loyalty expressed by member votes and their supportive statements.  Claudia Tenney of NY’s 22^nd congressional district is a prime example.  She not only votes with the President over 89% of the time, she now owes him her complete fealty by having him come to a small city on the Mohawk River to boost her campaign fund-raising and her status (he may have done neither to any great extent).  Any “independence” claim on her part has been compromised, and that’s all it takes to lose one’s ability to act in any substantial way to oppose him.  She is his to command and therefore a contributor to the loss of the independent check on the President’s power held by the Congress. She has helped to unbalance the balance and uncheck the checks. 

Judge Kavanaugh’s nomination by the President and approval by Congress must be seen in this light.  Kavanaugh was chosen for certain reasons, which just happen to coincide with Trump’s philosophy and his needs:

• He is anti-abortion and contraceptive rights andwill vote to overturn Roe v. Wade
• He has writings and decisions in his past that favor Business interests over those of Labor
• He has expressed in no uncertain terms that the president has the authority to pardon himself; to not be charged with crimes while in office, and to do just about anything he wants to do as commander-in-chief; Kavanaugh would grant the presidency more power than the Founding Fathers ever wanted for that office.  
• The Result would be: the final capture of the SCOTUS as a tool of the presidency.  The Court’s separateness and equal power, along with its checks on the presidency and the Legislature would most likely be badly compromised.  Judge Kavanaugh’s approval by the Senate goes far beyond mere overturning of checks on the presidency.  It goes to the final line of demarcation and independence.  Judge Kavanaugh is the tool, the key, the final link in the capture of the Judiciary by the presidency.

SO – HERE IS MY TAKE ON WHAT HAPPENED THURSDAY. 

1. JUDGE KAVANAUGH PERFORMED AS THE OVAL OFFICE (AND THE CAPTURED LEGISLATORS) WANTED HIM TO (except for the crying!), providing enough cover to approve his nomination (as a sign of their loyalty to Trump).  Some of the words and phrasing in his 'testimony' were so similar to Trump's rally rhetoric, that one has to wonder just how much he wrote and how much was dictated to him.  He actually seemed to be mimicking his mentor!  
2.  The Judicial branch of the Federal Government is about to become another pawn to do the ‘fake’ president’s bidding, while the legislature played its “captured” status to a “T” (rump) (especially Lindsey Graham).  The blindfold on Lady Justice has finally been removed to allow for biased decision-making as the norm in our highest Court.
3. Donald J. Trump walks away with another triumph in terms of non-law enforcement, already claiming:  this 'fine woman' (Dr. Ford) made a fine presentation, but had no evidence, no witnesses, no corroboration; nothing but false assertions for some unknown gain for herself (what he really means, but didn't have to say: 'just like those who have accused him of similar offenses').
4. Trump may have also walked away with an excuse to withdraw the nomination or to stay with it, depending on the outcome of an investigation by a “battered” FBI. He knows a week or less is not enough time for the FBI to follow all the leads, so he is betting on a report with little substantiation of the charges, which will enable him to maintain support of his candidate
5. Whatever way the investigative report turns out, he will say he was the one who called for it, and therefore can claim victory, even if he loses the nominee.  If it vindicates Kavanaugh, he will crow about it forever as a great victory because it will show you can't trust any of "these accusers" (especially his own!).  If the report clearly substantiates Dr. Ford, he will simply call into question the integrity and ability of an agency that he previously denigrated for this very reason -- they can't be trusted!
6. Most of all, in my estimation, it displayed in living color the mess in which we have allowed ourselves to be mired.  The “Swamp” is real; democracy is sinking in quicksand, and the checks and balances that make our system unique are being destroyed by one narcissistic man whose quest for personal victory and power is unquenchable.  The capture of Congress and the Supreme Court are tantamount to a silent coup d'etat.

 And then, there are the Trump followers – the Trump-ets and Trump-ettes. Because they deserve an entire article written about them, I shall merely mention them in passing this time.  Let’s be clear:  the time is fast approaching when they must share the blame and the consequences for allowing themselves to be used by a con-man, a Fascist Despot, a destroyer of our democratic system and our constitutional checks and balances.  Having allowed (and even encouraged) this man to break laws, denounce allies, slander people who cross him, and treat people of other races, nationalities, ethnic groups and religions as second-class or as criminals or as less-than-human, the loyalists who stay with him no matter what unprincipled, unethical or unlawful actions he takes, must share the fate of their own participation in his treasonous, lawless and unethical actions.

They are nothing less than abettors and co-conspirators in the deconstruction of our democracy.  They must also be held to account: voted out of office at every level of government; prevented by common guardrails from ever being enabled to run for public office; boycotted if they operate a business or service that favors or financially supports such activity; and finally, put on trial for aiding a foreign country to hack our election system, for allowing government kidnapping and child abuse at our southern borders, and for permitting the assets of Social Security and Medicare to be stolen to endow the whims and self-aggrandizement of less than 1% of our population.

In conclusion, let us also briefly list some of what must now happen to restore our constitutional democracy (which may also serve as future subjects for this Blog, as they have in the past):

1. Amend the Constitution to establish a method of amendment and ratification that involve the People (voters) but not the Congress and certainly not the President (see posts of 05/26/2014 and 11/13/2015);
2. Amend the Constitution to eliminate the Electoral College and overturn Citizens United decision
3. Pass laws that immediately reform our electoral system: public funding; automatic registration at age 18; multiple ways to vote that accommodate the largest number possible; and much more… (see 12/23/2011)
4. Institute term limits for all public offices, including judgeships; 
5. Disembowel the Committee and leadership system in the federal Congress; it has no relationship to good government
6. Restore the independent nature of our three branches of Government; revive checks and balances and add those checks above that allow the People to do more than vote; the definition of each branch’s role will need to be carefully re-drawn and re-worded;
7. Require the intense training of every new member of Congress in the artful techniques of problem solving, leadership sharing; and the application of appropriate process (or best practices) to policy or purpose statements and to the creation of regulations;
8. Initiate a check by ordinary citizens on the functioning of government by placement within government (probably within Inspector General offices) (see post of July 21, 2014)
9. Reform the legislative processes: 

• every piece of legislation must incorporate its relation to constitutional principles; 
• committee hearings must be structured to advance a problem-solving technique and to achieve a stated purpose.  
• other methods of inquiry should be used when appropriate (such as personal interviews as vaguely suggested by Chief Counsel Mitchell); 
• every member office in the Congress must establish a set of outcomes it will pursue; 
• every member office should have a well-defined process by which constituents will be consulted and have access.  
• Those who have a special interest must register as lobbyists and be required to name the person or group they represent on any legislation or policy that has any input whatsoever from them; likewise, 
• all office budgets must have specific actions tied to line items –no miscellaneous expenditures.  More specifically, 
• any legislation that requires a hearing or input of any sort must include input by other than special interests who stand to benefit monetarily; every piece of legislation must have ordinary citizen input and/or testimony from those affected by the legislation– if not, it should be able to be declared invalid by majority vote, at the behest of any Senator (individual privilege). 
• Establish a realistic recall process for any member of any of the branches who is not measuring up to their written purposes, goals, best practices and oath of office.

It is way past time to set some standards for our government and its branches.  We do not need nor desire to have Committees in Congress or any other functioning office on such miserable display as was evident in those Thursday/Friday hearings.  
The lack of problem-solving technique is abominable.  Partisan bickering, especially over procedure, is tantamount to chaos.  A change is needed, not just in the Party in power, but in the process by which government operates.  
Maybe the change needed is not just party-related, but generation-related as well.  In all cases, what is needed is people with a Vision of what and who we must become. (And we certainly need more representative actions like those of Senators Flake and Coons who listened to each other – and to angry constituents - with the intent of learning and then acting on what must be done!).  

 Let us begin demonstrating that we are not what we saw for those two days last week!

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NEWS ALERT:  WHEELING, West Virginia — President Donald Trump on Saturday fully backed his Supreme Court nominee, Brett Kavanaugh, said the FBI investigation of him may be a blessing in disguise (emphasis mine) and questioned whether Sen. Dianne Feinstein might have leaked the sexual attack allegation from Christine Blasey Ford.

Trump said he has no plans to replace his Supreme Court pick.
"I don't need a backup plan," the president said. "We have to see what happens. I think he's going to be fine. Again, one of the most respected men, and certainly one of the most respected jurists, or judges, in the United States."

Trump said on Saturday that the FBI has "free reign" in its investigation, although NBC News reported exclusively that significant restraints have been put on the agency.


WASHINGTON — President Donald Trump announced late Saturday that the White House had placed no limitation on the FBI's ability to investigate allegations of sexual misconduct made against Supreme Court nominee Brett Kavanaugh.

"I want them to interview whoever they deem appropriate, at their discretion," Trump tweeted in response to an NBC News report citing multiple people familiar with the process who said the White House was limiting the scope of the reopened background investigation of Kavanaugh.

A White House official had confirmed earlier Saturday that Swetnick's claims would not be pursued as part of the reopened background investigation into Kavanaugh. Trump described that as incorrect in a tweet late Saturday. The Wall Street Journal had also reported that Swetnick's allegations would not be investigated.

Trump said the FBI had "free rein" in the investigation.  "They’re going to do whatever they have to do," he said. "Whatever it is they do, they’ll be doing—things that we never even thought of. And hopefully at the conclusion everything will be fine."
An administration official familiar with the process clarified, after the publication of this story, that while investigators may not be interviewing Swetnick herself, that doesn't preclude them from asking other witnesses about the allegations she has made.

[confirmed to NBC News.] 

by Ken Dilanian, Geoff Bennett and Kristen Welker / Sep.29.2018 / 4:33 PM EDT / Updated Sep.30.2018 / 12:30 AM

Contributors: Frank Thorp V, Hallie Jackson, Leigh Ann Caldwell

MORE BREAKING NEWS (from CNN):  Chad Ludington, a Yale classmate of Supreme Court nominee Brett Kavanaugh, accused him on Sunday of being untruthful in his testimony to the Senate Judiciary Committee and making a "blatant mischaracterization" of his drinking while in college. Read his full statement below:

I have been contacted by numerous reporters about Brett Kavanaugh and have not wanted to say anything because I had nothing to contribute about what kind of Justice he would be. I knew Brett at Yale because I was a classmate and a varsity basketball player and Brett enjoyed socializing with athletes. Indeed, athletes formed the core of Brett's social circle.
In recent days I have become deeply troubled by what has been a blatant mischaracterization by Brett himself of his drinking at Yale. When I watched Brett and his wife being interviewed on Fox News on Monday, and when I watched Brett deliver his testimony under oath to the Senate Judiciary Committee on Thursday, I cringed. For the fact is, at Yale, and I can speak to no other times, Brett was a frequent drinker, and a heavy drinker. I know, because, especially in our first two years of college, I often drank with him. On many occasions I heard Brett slur his words and saw him staggering from alcohol consumption, not all of which was beer. When Brett got drunk, he was often belligerent and aggressive. On one of the last occasions I purposely socialized with Brett, I witnessed him respond to a semi-hostile remark, not by defusing the situation, but by throwing his beer in the man's face and starting a fight that ended with one of our mutual friends in jail.
I do not believe that the heavy drinking or even loutish behavior of an 18 or even 21 year old should condemn a person for the rest of his life. I would be a hypocrite to think so. However, I have direct and repeated knowledge about his drinking and his disposition while drunk. And I do believe that Brett's actions as a 53-year-old federal judge matter. If he lied about his past actions on national television, and more especially while speaking under oath in front of the United States Senate, I believe those lies should have consequences. It is truth that is at stake, and I believe that the ability to speak the truth, even when it does not reflect well upon oneself, is a paramount quality we seek in our nation's most powerful judges.
I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth.
I felt it was my civic duty to tell of my experience while drinking with Brett, and I offer this statement to the press. I have no desire to speak further publicly, and nothing more to say to the press at this time. I will however, take my information to the FBI.