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How I answered a survey from the Progressive Change Campaign Committee about the Merrick Garland nomination

I received an email this morning from the Progressive Change Campaign Committee,, asking that I complete a survey on the Garland nomination.  The email began with this question: What do you think about Merrick Garland and the Supreme Court vacancy now?  It continued:

The president nominated Merrick Garland to fill the vacancy on the Supreme Court.

After a day of media reporting on his record, and Senate Democrats calling for the process to move forward, we want to know how you feel about this fight.

Your answers below will help shape the PCCC’s activism on this.

Here are the survey questions and my answers:

QUESTION: Overall, how do you feel about President Obama’s decision to nominate Merrick Garland?

1) Very Enthusiastic   Somewhat Enthusiastic   2) Pretty underwhelmed   3) I do not like this decision   4) I don’t know

ANSWER: I do not like this decision


QUESTION: How enthusiastic are you to keep taking action against Senate Republicans to allow a hearing and fair process to move forward for Merrick Garland?

1) Very psyched. Ready to fight those Republicans!   2) Somewhat enthused. But we all need to take some action.   3) I still need to learn more before taking any action.   4) I’m not feeling it at all.

ANSWER: I still need to learn more before taking any action.

QUESTION: Wednesday, the PCCC launched a new petition saying this:

Petition: Now that the President followed the Constitution and nominated a Supreme Court Justice, Senate Republicans should do their job and allow a fair hearing and process to move forward. The Court needs someone who understands the real world impact of the Court’s decisions on hardworking Americans. 

Should we add your name to this petition?

1) Yes, add me as a signer.   2) No, do not add me as a signer.

ANSWER: No, do not add me as a signer.

QUESTION:  What do you like most about Merrick Garland being the nominee?

ANSWER: That he once dissented in a case in which his two panel colleagues (one of them John Roberts) ruled against a whistleblower and the federal government (who were on the same side in the case). Although the narrow issue was whether or not the False Claims Act applies to Amtrak contractors, Garland’s dissent did indicate strong support for the role of whistleblowers.  He dissented similarly in a free-press case involving disclosure of the names of whistleblowers (in a case in which the criminal defendant requesting the disclosure was actually a sympathetic figure and was innocent).

QUESTION: What do you like least about Merrick Garland being the nominee?

That his near-religious belief in the sanctity of precedent may mean that the precedents set by the Conservative Legal Movement justices, including those that overturned earlier precedents will remain law until one of the four conservative justices is replaced by a Dem president.  In other words, that the panoply of dramatic changes in the law amounting to a Conservative Legal Movement checklist with, by now, lots of checks indicating completion—Sherman’s-march-through-Georgia- style—will remain law for at least the next several years.  Citizens United and the Voting Rights Act opinions are just two examples.

QUESTION: What do you most still want to learn about Merrick Garland?

ANSWER: Because he is a judge on the D.C. Circuit rather than on one of the other regional circuit courts, he has never ruled in a habeas-petition case challenging the constitutionality of a state-court criminal conviction, and therefore on the threshold issue of federal-court jurisdiction in such cases. In other words: on the right of state courts to violate the constitutional rights of individuals.  I also would like to know how broadly he views the Supreme Court-fabricated “qualified immunity” of police officers and prosecutors who are sued for, say, withholding exculpatory evidence or just plain fabricating evidence.

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A Clinton Presidency Would be Unprecedented.

No not just because she is a woman.
Not just because she is a woman and her unfavorables are 12 points above her favorables (according to the Huffington Post smoother)

1) She is attempting to be elected as a non-incumbent Democrat.
2) The top marginal income tax rate is less than 69%.
3) The 16th amendment has been ratified so the income tax is constitutional
and finally
4) she is not proposing to both increase taxes on high incomes and cut taxes paid by the middle class.

Here is a figure stolen from Kevin Drum


It’s hard to see compared to the huge tax cuts for the top 1% proposed by Republicans and the huge tax increases proposed both for top 1% and for mid incomes by Sanders, but Clinton is proposing a tiny increase in taxes on mid incomes.

This has not worked for a non incumbent Democratic candidate since the Reagan tax cuts. The two successful candidates, her husband and her 2008 rival, both promised to increase taxes on high income *and* cut taxes on the middle class. Obama also delivered.

Bill Clinton was convinced to be serious and responsible, so he proposed increased taxes on high incomes, reduced taxes for the working poor (via the 1993 increase in the Earned Income Tax Credit which had nothing to do with the 1996 welfare reform bill) and a tiny 4.7 cent a gallon increase in the tax on gasoline. For this I blame Robert Rubin, and I don’t even care if Matt Taibbi agrees. Clinton promised (accurately) that 85% of the increased taxes would be paid by the top 1%. He could have managed 95% or 105% but that wouldn’t have been serious. People were quite irritated (of course they were also scared by the attempted health care reform). Then the Republicans gained control of Congress.

Now in 2016, when the GOP is in the act of nominating Donald Trump, Democrats refuse to sink to the demagoguery of offering tax cuts to the middle class while raising taxes on high incomes. It’s not as if the current Clinton approach hasn’t been tried. It was tried in 1984, 1988, 2000, and 2004. What do all of those elections have in common ?

I hasten to add that am not predicting that Clinton will lose the election.

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Liberals, and especially African-American liberals, should not encourage Senate confirmation of Garland to the Supreme Court

Repubs apparently now think they can have the last laugh.  Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins.  But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.

— Me, here, yesterday

Today, Greg Sargent writes at length about that possibility:

[T]here is a scenario worth entertaining here in which Obama has the last laugh — and the GOP posture ends up leaving Republicans with only downsides, and zero upsides.

That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.

The Republican argument for refusing to consider Garland (or anyone Obama nominates) is that the selection of the next justice is so hugely consequential that only the next president should make that choice, so that the American people have a say in it, by choosing who that president will be. Lurking behind this rationale is the understandable fear that if the court is tilted in a more liberal direction, it could deal a serious blow to a number of conservative causes — so better to roll the dice by holding out and hoping a Republican is elected president.

But with Donald Trump tightening his grip on the nomination, and the more electable “establishment” GOP candidates falling like dominoes, the prospect of Clinton winning the presidency is looking very real, and may continue to look even more likely as the campaign progresses. Republicans themselves fear that a Trump nomination could cost them the Senate, too. If all of that happens, Republicans might see no choice but to try to confirm Garland in the lame duck, before Clinton takes office and picks a nominee, possibly with a Dem-controlled Senate behind her. Some Republicans are already floating this idea.

But Obama could decline to play along with that scenario.

His post is titled “How Obama could get last laugh in Supreme Court fight.”  He posted this update:

It occurs to me that I probably should have argued that in this scenario, Democrats and liberals would be getting the last laugh, as opposed to Obama getting it. After all, Obama by all indications does want Garland confirmed; he’d merely be deferring to Hillary after the election. And liberal Dems (some of whom are already disappointed by the Garland pick) would be getting their preferred outcome. I’m not predicting this will happen, just floating it as an interesting possibility. You may also see some liberal pressure on Obama to do this, if Democrats secure a big victory in November (though whether Obama would bow to it is anybody’s guess), which would also be an interesting scenario to see play out.

But liberals should not push this man’s confirmation, and certainly African-Americans should not.  To quote Politico’s Josh Gerstein, “A former prosecutor, Garland often split with his liberal colleagues on criminal justice issues.”

Garland would not bring the court leftward in the absolutely critical realm of criminal justice issues, including jurisdiction to challenge via federal habeas corpus petition anything state-court criminal convictions or sentences on grounds that some aspect that lead to the result was unconstitutional–including police or prosecutorial misconduct and ineffective assistance of counsel, and including immunity of cops and prosecutors from civil liability in civil rights lawsuits.

That, in fact, reportedly was a big plus for him in Obama’s opinion in 2009 and 2010 when he was being considered to replace Souter and Stevens–even though the Dems controlled the Senate.

Thomas Friedman, of all people, had a terrific line about Obama in his NYT column a day or two ago, something like, “Let’s face it; you wouldn’t want President Obama to be the one selling your house for you.” The column, which really was quite good, was about the TPP, and what Clinton should say about it now. But that comment about Obama was hilarious, and absolutely spot-on.

I’ve thought for about seven years now that Obama’s primary concern is to be considered a moderate by The People Who Matter. I don’t think he cares all that much about anything else, really.

Or maybe he thought in 2009 and 2010 and today that what the Supreme Court needs is a former prosecutor who will join with Samuel Alito in anything related to criminal law and law enforcement.

Garland is being hailed in some quarters as a brilliant legal mind, but I have yet to see an iota of evidence of it.  On a par with Samuel Alito, maybe? Or maybe just in comparison to Samuel Alito. And best as I can tell, not by all that much.


UPDATE: This article by Janell Ross on the Washington Post’s The Fix blog about both Obama and Garland is outstanding.  I disagree with her that the anger toward Obama among what she calls the far left (which as a Sanders supporter I guess I qualify as part of, right?) is misplaced, but I agree with her about pretty much everything else she says in the article.  It’s a terrific analysis of Obama’s presidency as well as of Garland’s career.

Added 3/17 at 4:40 p.m.


SECOND UPDATE: Just saw this article on Politico via Yahoo News, titled “Black lawmakers irked by Obama’s Supreme Court choice“. Their concerns are that Garland is a moderate rather than a progressive, and that Obama didn’t consult them before finalizing and announcing the selection.  Some of them also are angry that a member of a racial minority wasn’t selected.

Good for them.  I myself don’t care one whit about the nominee’s race, gender, family background, religion, ethnicity.  I care only about the person’s professional experience, views on legal issues I care about, and intellect, because that is what will determine how this person will effect the law. I can’t think of a clearer in-your-face affront to African Americans, at this particular moment, than the nomination of a pro-police, pro-prosecutor, anti-habeas corpus judge to be the swing justice on the Supreme Court for, very likely, the next several years.

I also have to say how very retro it is that Obama thinks the public is 1980s-’90s-era pro-police, pro-prosecutor. Then again, for some people–i.e., politicians–it will forever be the 1980s or ’90s.

Added 3/17 at 7:15 p.m.

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GAG. (And Paul Krugman is just so, so mystified that so many progressives support Sanders. Be mystified no longer, dear professor.)

Dan Crawford gave me the news this morning before I’d already learned of it. He emailed me with the subject title: “Merrick Garland…here we go!” He linked, without comment, to the NYT article on the announcement.

I responded:

UGH. I guess the idea is that there just aren’t enough super-establishment Supreme Court justices already. We definitely need one more.

And Krugman is just so, so mystified that so many progressives support Sanders.



I’ll post at more length later today; I don’t have time right now.  But at the risk of drawing attention to the attention of the Secret Service, in an unpleasant way, I will take the time right now to say to Obama: Drop dead.*

And I’ll take the time to note this: The title of the NYT article is “Obama Chooses Merrick Garland for the Supreme Court.”  Its subtitle? “Appeals Court Judge Is Respected by G.O.P.”  Well, the G.O.P. that the Washington in-crowd hasn’t noticed isn’t all that popular right now with, um, some of the G.O.P.


*Na-na-no; this is said facetiouslyThe  drop-dead part, that is. Please, Secret Service. Really.  I don’t like Joe Biden all that much, either.


UPDATE:  This blog post in Slate by someone named Michael Gerhardt, whom I’d never heard of before and who is not identified there by anything other than his name, makes me cringe.

This guy’s bottom line: Yup, can’t be a merit nominee to the Supreme Court unless you’ve been an intrinsic part of the Centrist Establishment in Washington for, say, several decades.

And interestingly narrow definition of merit, wouldn’t you say?

Okay, well, actually he is identified by more than his name.  He’s a Centrist Establishment person.  Just an educated guess, but still ….

Fittingly, the post title is, “Merrick Garland deserves to be on the Supreme Court.”  Because what matters is what Merrick Garland deserves, not what the multitude millions of people whom the Supreme Court pretends don’t exist.  Or just aren’t worth the time of such an august group.  Or even a moment’s thought.

Then again, there is this hopeful note, also from Slate.  It’s by Jim Newell, Slate’s main political analyst.

Added 3/16 at 6:32 p.m.


UPDATE TO UPDATE:  Calmer now.  Reread Jim Newell’s awesome article and agree with every word of it.  Including why Obama almost nominated Garland to fill John Paul Stevens’ seat for real. Which pretty much sums up why I can’t stand Obama and don’t want a third Obama term in the person of a chameleon.

Added 3/16 at 7:10 p.m.


PS: Greg Sargent writes:

I’ll bet that a big part of his selection was that Garland was willing to go through the process knowing he probably won’t get to actually serve on the court, while a younger judge who could have another chance later might not want to.

In thinking about it more, I’m betting that that was a very big part.  As in, none of the others would accept the nomination, and told Obama so.

Repubs apparently now think they can have the last laugh.  Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins.  But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.

This post is starting to feel not like a blog post but like a blog.

Added 3/16 at 8:36 p.m.


PS TO PS:  Yup.  It’s been officially confirmed by go-to-Centrist Ruth Marcus: Garland resoundingly (her word) deserves to be confirmed, and what really matters is what Garland deserves.

Her piece is titled “A Supreme Court nominee too good for the GOP to ignore.”  I’m not kidding.  That’s its title.  You really have to read this thing.  The whole thing; you don’t want to miss the part about her running into him on the street after she became a well-known Washington Post journalist.  Her piece apparently is not intended as a parody of a Washington insider’s view, although it does double duty as that.

Yup. This post is a blog unto itself.

Added 3/16 at 9:02 p.m.

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The Key to Defeating Trump in the General Election Is in a Single Sentence of His in Last Night’s Debate: Angry Americans want big tax cuts for the wealthy

People come [to Trump campaign events] with tremendous passion and love for their country. … When they see what’s going on in this country, they have anger that’s unbelievable. They have anger. They love this country. They don’t like seeing bad trade deals. They don’t like seeing higher taxes. They don’t like seeing a loss of their jobs. … And I see it. There’s some anger. There’s also great love for the country. It’s a beautiful thing in many respects. But I certainly do not condone that at all.

— Donald Trump, during last night’s debate

Back last fall when Ben Carson was surging and according to the polls had overtaken Trump in Iowa, the Koch brothers’ main super PAC saw an opening to end the Trump phenomenon once and for all: It announced plans to buy, I think it was, $1 million in ad time on Iowa and New Hampshire airwaves.

Trump, up to that point, had been campaigning as sort of a fiscal progressive, suggesting (among other things) that he supports a more progressive tax code and maybe even universal healthcare insurance.  Uh-oh; he definitely had to be stopped by a Koch brothers’ super PAC ad campaign.

Unless, of course, he adopted Koch brothers fiscal-policy positions and continued his climate-change-is-a-hoax thing. The latter would be easy, of course, but the former required the hire of a mainstream-wingy Republican fiscal-policy consultant who could, and did, chose a mainstream-wingy Republican fiscal-policy candidate’s already published trickle-straight-down-to-the-sewer-system fiscal policy platform and just double the tax cuts for the wealthy.  Take that, Jeb!

It worked. At least to my knowledge, the ad buy never materialized. Carson collapsed in the wake of the Paris terrorist attacks, Trump’s campaign regained steam—and never looked back.  Until two weeks ago or so, anyway, when comments he made about not wanting people to die in the street for lack of access to medical care raised questions about whether he – he – he supports Obamacare and its Medicaid expansion.

Not to worry.  That mainstream-wingy Republican fiscal-policy consultant was still under contract with the Trump campaign and could quickly rattle off the points on the Movement Conservative list of heathcare-insurance-reform clichés for Trump to post on his campaign’s website as his healthcare-reform proposal.  There was increasing healthcare savings accounts.  There was allowing insurance companies to sell policies nationally.

And of course there was the end-Medicaid-by-giving-the-money-to-the-states-to-use-for-anything-they-wished-even-maybe-Medicaid-which-of-course-Republican-controlled-states-won’t-use-it-for proposal.

And you, Tea Partiers, were starting to worry that Trump doesn’t really want to kill Obamacare and Medicaid!  Fear no longer. It’s safe to vote for him.  Whew.

That was a relief, of course, for Establishment wingers, too.  But, dang.  It’s not enough.  Some of them are pretty worried that although that fiscal policy proposal is still there on his website, Trump never actually talks about it.  Instead he’s always just playing to the white blue-collar folks who’ve been financially devastated by the free-trade treaties.  And by other policies that have had the effect of favoring the well-off, to the detriment of, well, these Trump supporters.  And this guy Bernie Sanders keeps detailing the statistics about wealth and income distribution over the last thirty-five years.  He won’t shut up about it.

Big problem.  Especially since this week it became time for Trump to try to unite the Republican establishment behind him.  Not easy for someone who’s one positive contribution to the political climate is to expose Republican establishment financial-elite proxies as not really so in sync with the Republican blue-collar base after all.

The answer? Ah. Higher taxes! The perfect fiscal dog whistle to the Koch folks and their ilk.

So … the people who come to Trump rallies?  They have anger.  They love this country. They don’t like seeing bad trade deals.  And they don’t like seeing higher taxes on the wealthy.  Because, see, the angry people who come to Trump rallies and who don’t like seeing bad trade deals are wealthy.  Just ask them.

Interesting, isn’t it, that now that Trump has all but wrapped up the nomination and wants the party establishment’s support, his first olive branch is assuring them that he really does support massive tax cuts for the wealthy?


UPDATE: An exchange between reader Warren and me today in the Comments thread:


March 12, 2016 2:43 pm

I missed the part where Trump said “for the wealthy”.

Or are you saying that only the wealthy pay taxes, so it is implied?



March 12, 2016 7:06 pm

You missed the part where Trump said “for the wealthy”, Warren? Guess you didn’t read Trump’s tax proposals or any of the articles summarizing them. You should.

The link is to an Oct. 2 blog post by Paul Krugman.  Trump had released his tax plan earlier that day.



March 12, 2016 8:53 pm

So is it “a single sentence in his in last night’s debate” or isn’t it?

Did he say “for the wealthy” in that sentence, or didn’t he?



Beverly Mann

March 12, 2016 10:39 pm

I said the KEY to defeating Trump in the general election is in a single sentence of his in Thursday’s debate. In a debate performance in which he was saying he wanted to unite the party, he dog-whistled the Kochs, the other donors, and the rest of the Republican establishment that, as president, he would attend to their needs: big tax cuts for the wealthy.

Angry Americans don’t want big tax cuts for the wealthy. But the Republican donors and the rest of the Republican establishment do, and the only one they’re angry with right now is Trump. He announced to them on Thursday that he wants to change that.

The key to defeating him in the general election is to simply point that out. Trump’s tax plan says what it says. It’s just that the only ones who know what it says, other than Paul Krugman and a few other journalists and progressive economists, are the people it was targeted to: the Republican establishment, to keep them at bay.

He was reminding the Republican establishment of his tax plan.

Added 3/12 at 7:44 pm and 10:50 p.m.

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John Cornyn Adopts Trump-Like Fascism Techniques. Good Job, Donald! [Updated.]

Dan Crawford sent me links to these two articles about Senate Judiciary Committee enforcer John Cornyn’s threat on Tuesday that he and his compadres will destroy the reputation of anyone nominated by Obama for Scalia’s seat.  I responded to him after reading the articles:

You know, Dan, this is so palpably, stunningly offensive that Sanders and Clinton need to tell the public about it.  It’s really just jaw-dropping. It’s just … I don’t know; I can’t even think of a perfect adjective.  Scary, maybe?


Sanders, especially, should mention this on the campaign trail as a way to illustrate the lengths that the people who want the federal courts—most prominently but by no means only, the Supreme Court—to continue to serve as a fully owned subsidiary of Koch Industries and the legal arm of the Republican Party, albeit with the full force of the United States government’s powers.

Cornyn is a former Texas state supreme court justice and Texas attorney general.  I’m betting that his professional history isn’t pretty, so he’s perfect to have his Fascism routine turned back on him. As in, turnabout is fair play.  Exposing his record as a state supreme court justice and a state attorney general to national examination may, given what some of the specifics are likely to be, ensure his seat as a Texas senator for as long as he wants it.  But it also may well help in making the remainder of his tenure as a senator, beginning next January, be as a member of the Senate minority.

And I don’t mean that I expect him to become a Democrat.

Thug-like threats and actions aren’t likely to appeal to a majority of voters.  As Trump’s general-election and favorability poll numbers indicate.

In other words: Citizens united against Citizens United!  And so very much more.  Hoist this politician by his own piñata.


UPDATE: The New York Times today has an editorial on this, writing:

On Monday, John Cornyn, the senior Republican senator from Texas, warned President Obama that if he dares to name a successor to Justice Antonin Scalia of the Supreme Court, the nominee “will bear some resemblance to a piñata.”

Violent imagery has been commonplace in political statements for a long time, but even so, it is disgraceful for a senator to play the thug, threatening harm to someone simply for appearing before Congress to answer questions about professional accomplishments and constitutional philosophy

The editorial is titled “Republican Threats and the Supreme Court”.

Senator, may we not drop this? … Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?

Added 3/11 at 8:42 a.m

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