Monday, February 15, 2016


Any mans death diminishes me, because I am involved in Mankinde;
And therefore never send to know for whom the bell tolls; It tolls for thee.

-- John Donne
Devotions Upon Emergent Occasions (1624)

Ding-dong, the witch is dead. -- The Wizard of Oz (1939)

This week's featured post is "Back to Ferguson", which I'll explain below.

In the aftermath of the New Hampshire primary, I'm taking a week off from presidential politics. Next week we'll have the Democratic caucuses in Nevada and the Republican primary in South Carolina to talk about. Both happen Saturday.

This week everybody was talking about Justice Scalia's death

Supreme Court Justice Anton Scalia's final act, as far as I was concerned, was to posthumously remind me that I am not as good a person as I like to think.

Good People, as I picture them, see death as the great leveler, the ultimate reminder of our common humanity. Like John Donne, they believe the bell tolls for them. Every death -- even necessary ones like casualties in a just war or criminals killed in the act of trying to kill somebody else -- is tragic: How sad it is that a situation might make a person's death the lesser evil.

Under no circumstances would news of someone's death cause a Good Person's heart to take an involuntary leap of joy. Or inspire a Good Person to say, "I wonder if Justice Thomas will follow his lead this time too?"

Bad. Bad, bad, bad.

But at least my badness puts me in some good company. As Clarence Darrow wrote, "I have never killed anyone, but I have read some obituary notices with great satisfaction."

Scalia's career. You can read more complete obituaries of Scalia elsewhere. Here's how I remember him: When President Reagan appointed him in 1986, he was alone on the Court's far right wing. Outnumbered, he became famous for his thought-provoking dissenting opinions, which were principled, but based on principles different from the ones that motivated the rest of the Court. Liberals developed a kind of grudging admiration for him; you knew in your heart he had to be wrong, but it was often very hard to explain why. Anticipating his criticisms made us sharper -- like iron sharpens iron, as the Bible says.

But late in his career, as part of a conservative majority, he became the Court's most openly partisan judge. His opinions became elaborate rationalizations of why his side should win, regardless of principle. And so, he had a sweeping view of the Constitution's commerce clause when that was necessary to keep marijuana illegal, but an unprecedently narrow view of the same text when he needed a reason to strike down ObamaCare. He waxed eloquent about legislator's original intent when that was convenient, but violated it outrageously by finding corporate rights in places the authors of the Constitution clearly never intended. He was part of the nakedly political 5-4 majority that made George W. Bush president, a decision so unabashedly partisan that it explicitly warned future Courts not to use it as a precedent. He attended secretive meetings of the Koch Brothers' donor network, as (enabled by Scalia's vote in the 5-4 Citizens United decision) it raised vast sums of money to elect Republicans.

Beyond his unprincipled partisanship, Scalia will be remembered for undermining the traditional decorum of the Court. As he aged, he seemed less and less able to imagine that an intelligent, well-intentioned colleague might disagree with him, and showed less and less restraint in flinging oddly Victorian insults (like "argle-bargle" and "jiggery-pokery") at their arguments.

Replacement? Mitch McConnell wasted no time in warning President Obama not to bother appointing a replacement.

The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.

Elizabeth Warren fired back:

Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.

She goes on to remind McConnell of the constitutional duties of the President and the Senate. I think that's the right line here: Let's follow the Constitution, which is pretty clear:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.

So it's simple: Obama should do his job by appointing someone and the Senate should do its job by voting on that nomination.

As much as the Republicans may hope for a Republican president whose appointments will cement the Court's conservative majority for decades to come, I think that position is suicidal when it comes to holding the Senate. Take the NH seat: Senator Kelly Ayotte has been running not as a down-the-line Republican, but as an exemplar of New Hampshire's traditionally independent common sense. (Along with another endangered Republican incumbent, Mark Kirk of Illinois, she is a founding member of a small group of Republican senators who recognize global warming.) If Mitch McConnell were running here, he would lose. Turning the race into a simple red/blue contest for control of the Senate, and hence the Court, helps Ayotte's challenger, Gov. Maggie Hassan.

It also probably helps the eventual Democratic presidential nominee to have a court appointment riding on the outcome. Control of the Supreme Court -- not just possibly someday, but immediately -- would give either Hillary or Bernie a powerful uniting message after a divisive primary campaign.

Who, then? Various short lists of possible Obama appointees are floating around. At the top of most of them is Sri Srinivasin, who was approved by the Senate unanimously for his current job as a federal appellate judge.

If I were Obama, I would take McConnell's obstruction threat seriously, and appoint whoever I thought would work best in a why-don't-they-do-their-jobs attack ad. I'd be looking for a Mr. Rogers type: Somebody who exudes a sense of basic decency, who wouldn't ring any alarm bells about affirmative action or political correctness.

Recess appointment. Unofficial reports say that Obama will not make a temporary recess appointment, which he could attempt since the Senate is currently not in session. But that path is filled with technicalities and possible disputes. SCOTUS blog summarizes:

The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there.  The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.

My suggestion for a recess appointment: Sandra Day O'Connor. She retired to spend more time with her husband, who has since died, and she's still active as a part-time substitute judge at the appellate level. As a replacement for Scalia, she would move the Court somewhat to the left. But it would be hard for Republicans to justify blocking a judge originally appointed by the sainted President Reagan.

Interesting sidebar here: The Court recently issued a stay blocking President Obama's plan to limit the carbon emissions of power plants. That indicated that, when the case reaches them from its current location in an appellate court, the Supremes might be inclines to strike it down, almost certainly by the 5-4 ideological split it then had.

Without Scalia, though, and assuming a decision has to be made before he can be replaced, the Court will reach a 4-4 non-decision, and the lower court ruling will stand. The appellate court seems likely to uphold Obama's action.

and the budget

Another example of the Republicans' refusal to recognize Obama's legitimacy as president is that the House is not planning to hold hearings on his budget proposal.

The Republican chairmen of the Senate and House budget committees said last week they were forgoing the decades-long tradition of hearing testimony from the director of the Office of Management and Budget, claiming they expected Obama's budget to offer little in debt reduction.

and Oregon

The occupation of the Malheur Wildlife Refuge ended Thursday morning after 41 days, when the last four guys surrendered to the FBI. The occupiers got no concessions: The two ranchers whose re-imprisonment sparked the occupation remain in prison. No changes in federal land use policy have been announced. The leaders of the occupation have been arrested and charged.

A bonus was that Cliven Bundy, father of occupation leader Ammon Bundy and the center of a previous armed stand-off in 2014, has also been arrested and charged.

In a 32-page criminal complaint, prosecutors allege Bundy and his co-conspirators led a massive, armed assault against federal officers in April 2014 near the town of Bunkerville, Nev.

According to the U.S. attorney for Nevada, Bundy and his armed supporters on horseback effectively ambushed federal Bureau of Land Management officials as they were trying to round up 400 of Bundy's cows illegally grazing on federal land.

The way the government backed down from that confrontation undoubtedly emboldened the Malheur occupiers. Bundy and his allies considered the 2014 showdown a victory. If the Malheur occupiers had walked away with concessions, that also would have been a victory, and quite likely would have led to an even more aggressive move in the future.

So far, it looks like the government has played this right: No police or government agents were killed. One occupier died in a confrontation that appears to have been largely of his own making. The government wanted a middle path between the 2014 Bundy showdown and Ruby Ridge; it seems to have found one.

Apparently the evangelist Franklin Graham (Billy's son) played a role in the surrender of the final occupiers. I'll be interested to see if he becomes a spokesman for the militiamen.

but more people should be paying attention to Ferguson

That's covered in this week's featured post "Back to Ferguson". The Justice Department says policing in Ferguson has to change to uphold its citizens' constitutional rights. Ferguson replies: We can't afford it. So where does the buck stop?

and Darwin

Friday was Charles Darwin's 207th birthday. That's my annual reminder to review the evolution/creation discussion.

I said most of what I want to say about it three years ago in "Evolution/Creation for Non-Eggheads". One thing to add since then: My friend (and occasional Sift commenter) Abby Hafer has published The Not-So-Intelligent Designer: Why evolution explains the human body and intelligent design does not. Her introduction says:

A few years ago, I realized that the whole intelligent design (ID) controversy is not a scientific issue, but a political one. ... ID is not a theory, it is a political pressure group. ...

Political issues require political arguments, and political arguments are different [from scientific arguments]. Political arguments must be short, easy to understand, memorable, and preferably entertaining.

In my case, I also want them to be true.

One point from the "Non-Eggheads" post I'd like to hit a little harder: If you ever listen to a Creationism/ID talk, you won't actually hear an alternative scientific theory. Instead, such talks invariably focus on criticisms of evolution (most of which were made and answered in the 1800s). Why? Because they have no alternative scientific theory to present.

Let me give an example to flesh that out a little. According to current evolutionary theory, life on Earth has a single family tree. In other words, any two living things have a common ancestor if you go back far enough. A lot of work has gone into figuring out how that tree branches, what is more closely related to what, and when the common ancestors lived. That work is ongoing, and every now and then our picture of the tree shifts a little as new evidence emerges.

It's fine to criticize that single-family-tree idea, but a real Creationist alternative theory would answer this very basic question: How many separate family trees are there, even approximately? And that leads to other questions: Did they all begin at the same time? What markers tell us that two living things are from different trees? Then you get to a bunch of more specific research topics: Do lions and house cats have a common ancestor? Collies and poodles? Polar bears and grizzlies? What about the 400,000 species of beetles biologists have postulated? Did 400,000 separate acts of creation lead to 400,000 family trees of beetles, or do some beetle species share a common ancestor?

That's the kind of stuff a real "creation science" would be researching. You never hear about it, though, because there is no such research and no such theory. Creationist "scientific" organizations spend their money, as Abby says, constructing and popularizing political arguments rather than doing science.

Tax money is still supporting teaching Creationism in Louisiana, and probably other states as well.

and you might also be interested in

When Franklin Graham isn't mediating between the FBI and crazy people, he's touring America to rally religious conservatives to be more politically active.

I don't think we're going to make it another election cycle if we don't get God's voice back in the political arena. ... I feel that we are going to have to meet our political obligations as Christians and make our voice known if America is to be preserved with the type of Christian heritage which has given us the liberties we now enjoy. For unless America turns back to God, repents of its sin, and experiences a spiritual revival, we will fail as a nation.

According to Graham, one "great sin that has been flaunted and celebrated" is same-sex marriage.

Here's what continually amazes me about all the God-will-punish-us-if-we-don't-turn-back prophecies: When was that God-fearing era we need to "turn back" to? When we were committing genocide against the Native Americans and holding millions of Africans in slavery? Or was it later, during the era of Jim Crow and lynchings? Or when we dropped atomic bombs on cities full of Japanese civilians?

I have a hard time picturing -- much less respecting -- a God who would shower us with blessings while we were doing all that stuff, but is going to drop us flat now that we're letting same-sex couples live together in loving relationships.

This week's guns-make-us-safer story: A guy in Texas opened fire on his neighbor's puppy, who was trespassing on his lawn. A friend of the puppy's owner shot back. The dog died. Neither human was wounded, but both are facing felony charges.

Guns don't kill puppies. Crazy Texans with guns kill puppies.

One of David Wong's "5 Ways to Spot a B.S. Political Story" is that it's about "a lawmaker saying something stupid". He points out that there are so many state legislators that on any given day one of them is bound to have said or done something ignorant or offensive. For that reason, I don't call your attention to bad laws just because they get proposed in some legislature; I wait to see if they have any real support.

Well, this one does: Senate Bill 1556 made it out of a committee in the Tennessee Senate on 7-1 party-line vote. (That tells you something about the Tennessee Senate right there; there are barely enough Democrats to get one on every committee.) It allows counselors and therapists to refuse to counsel clients "as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist". The counselor's only obligation is to provide a referral.

According to the Chattanooga Times Free Press, the bill "seeks to protect conservative therapists from 2014 changes in the American Counseling Association's code of ethics", which states:

Counselors refrain from referring prospective and current clients based solely on the counselor’s personally held values, attitudes, beliefs, and behaviors. Counselors respect the diversity of clients and seek training in areas in which they are at risk of imposing their values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature.

This is yet another example of conservatives abandoning their ideal of "small government" when it proves inconvenient. In short, the counseling profession is not allowed to establish its own code of ethics free from government meddling.

and let's close with something crazy

A huge controversy erupted after Beyonce sang "Formation" at the Super Bowl, while dressed to honor the Black Panthers. But there's a background level of crazy here that I previously had not noticed: More than 800K viewers have seen a video detailing all the Illuminati symbolism in previous Super Bowl halftime shows. I mean, we all knew about Madonna (right?), but who suspected Katy Perry of being "a high-level Illuminati witch"? I'll have to go back and look at her videos again.

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