My Supreme Court Fantasy

One of my friends asked if she would go to hell because she was glad that Antonin Scalia was dead.  I have mixed feelings.  First, I’m very sad for his family as sudden death is always difficult.  On the other hand, I am happy he is no longer a factor on the Supreme Court.  Justice Ruth Bader Ginsberg wrote on the the nicest tributes I’ve seen.  This is from Vox.

So it’s no surprise that of all the tributes to Justice Scalia, who died Saturday of an apparent heart attack at the age of 79, Justice Ginsburg’s is uniquely moving. It’s a tribute to Scalia as an interlocutor, a fellow opera lover — including a reference to the opera Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportionswhich debuted in 2015 — and a “best buddy.”

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: ‘We are different, we are one,’ different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

So my fantasy is imagining Justices Ginsburg, Sotomayor, and Kagan joined by a Justice Amy Klobuchar.  What a quartet that would be!

Patrick Condon writes in the Minneapolis Star Tribune

U.S. Sen. Amy Klobuchar is likely to mix it up in the coming political brawl in Washington around replacing Supreme Court Justice Antonin Scalia, and not just because her own name has again surfaced as a potential high court nominee.

Klobuchar

Klobuchar sits on the Senate Judiciary Committee.  This can be a plus because she has worked with all the Republican members.

Obama said late Saturday that he intends to try to fill the vacancy “in due time.” It is already shaping up to be an epic battle as Obama has been handed the rare chance to swing the ideological balance of the court, where Scalia served as one of the most reliably conservative voices in the 5-4 majority.

As Republicans who control the U.S. Senate vow to block Obama, the president will look for judiciary committee allies like Klobuchar and Franken. But Klobuchar, an attorney and a former elected prosecutor, may first be considered as a prospect.

“I think there’s a bunch of reasons she makes sense,” said Norman Ornstein, an expert on Congress and U.S. politics at Washington’s American Enterprise Institute, who was touting Klobuchar’s case on Twitter over the weekend. “I think there’s a substantive argument for her, and a political argument for her.”

Ornstein said by choosing a U.S. senator, Obama could make it a harder for Senate Republicans to block a trusted colleague for the entirety of 2016. And he suggested it might be a good time to reverse the recent presidential trend of only picking judges.

“There was a long tradition of selecting people who had been in public life, gone through elections and served in legislatures or executive office,” Ornstein said.
 Chief Justice Earl Warren and retired Justice Sandra Day O’Conner are two examples cited.
President Obama may ultimately decide that Klobuchar is too political an appointment and we don’t know if she would even be interested, but I can dream of the Mighty Four on the Supreme Court.
Photograph:  Twitter.com

Spring in Vermont

I’ve been gardening like crazy.  My husband and I have taken out 90% of what the previous owners had planted including the trees and have replaced them with lilacs, blueberry bushes, forsythia, and a serviceberry bush.  We also replaced two maples with a stewartia tree. (I put in a link because you probably never heard of one before. We hadn’t.)  Plus annuals and lots of perennials.  I figure that you can always take stuff out next year that doesn’t work.  All of this has helped take my mind off the mostly bad news that seems to keep coming.

Our young Stewartia tree with flowers.

Our young Stewartia tree with flowers.

Last week we caught a little break.  The Supreme Court made two decisions that, contrary to the dissenters, I think will be positive in the long run.  The first upheld the subsidies for the Affordable Care Act; the second, legalized marriage for everyone in all states.

Marriage equality began here in New England as all the local media have proudly told us.  Vermont legalized civil unions and Massachusetts was the first to sanction marriage.  As one news reader noted, “Today’s decision doesn’t really effect New England as same-sex marriage in already legal in all six states.”  That is a paraphrase, but a fact of which most New Englanders are very proud and contrasts to the defiant words from some of the Republican Presidential candidates.  Reminds me of the governors who wanted to stand in front of the school house door to prevent school integration.  Conservatives are always arguing that marriage leads to more stability so I can’t really understand why they aren’t pleased that more people will be getting married.

On the ACA, I wonder if some of the New England states like Vermont that are struggling with the necessary automation and connections to the federal exchange will just move to the federal exchange all together.  And I also wonder if states that never expanded Medicare will do so now.  But with Congressional leaders and most of the Republican Presidential candidates still hoping to repeal “Obamacare”, that is probably not likely.  In the meanwhile, more people are getting insurance and as they begin to get preventative care, costs should continue to drop.  Insurance companies, like most of us, like stability something the pro-repeal Republican should remember.

As spring slowly turns to summer here in Vermont, I’ve been thinking a lot about race.  As with many things we seem to be taking one step forward and two back.  Who would have predicted in 1964 that in 2015 we would need a new voting rights act?    Or that the unspoken racism of one of the major political parties would lead to a mass shooting in a black church?  Yes, I mean the Republican party with opposition to everything proposed by President Obama.  You can’t convince me that if the current Democratic president were someone like Jerry Brown or Tim Kaine opposition would be as virulent.  Race is at the core.  All those Senate Republicans who want to be president could prove me wrong by supporting the new voting rights legislation.  As the Washington Post pointed out, they once did so.

The Sunday after Charleston my husband and I drove down to Boston to attend church.  We wanted to attend his home church, an historically black church of which he became the first white member over twenty years ago.  The service is still traditionally African-American, but the worshippers are black, white, and Asian.  It was comforting to sit with people I have known for so many years as well as with the newcomers.  The young pastor spoke first about being “sick and tired of being sick and tired” and went on to talk about faith.  We were all given little packets of mustard seed by the children to remind us to keep the faith.  I’m finding that gardening is another way to find a measure of peace and faith that things change.  In the garden one can see the entire cycle:  planting, growth, blooms, death.  And then it begins again next spring.  We just need to keep the faith.

Photograph:  Bob Wyckoff

Judge Moore and Justice Thomas and marriage equality in Alabama

I guess that Alabama Supreme Court Chief Justice Roy Moore is taking his cues from Supreme Court Justice Clarence Thomas’ dissent instead of from the actual ruling in which the majority of the United States Supreme Court refused to stay a District Court ruling that allowed the state to become the 37th state to allow same – sex marriages.  According to the Washington Post story, Justice Thomas wanted a stay.

The court is months away from hearing arguments in a landmark case about whether states are free to ban such unions. But Thomas said a majority of the justices may have already made up their minds, as reflected by the court’s “indecorous” decision Monday morning allowing same-sex marriages to proceed in Alabama.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.”

Thomas and his pal, Justice Scalia voted for a stay.  And I think he is probably right.  The more states that allow marriage equality and the more couples that marry, the harder it will be to overturn any lower court rulings.  It may turnout that the Supreme Court will “compromise” by letting the few states in which the Appeals Court has overturned lower court rulings that not allowing marriage equality violates either the state or U.S. Constitution, but I think they are headed for a Loving v. Virginia kind of decision.

However, Judge Moore appears to have decided that he’d rather go with Thomas than the actual ruling.  Judge Moore ordered Alabama probate judges not to issue marriage licenses to same-sex couples.  According to the Washington Post

Much of the legal uncertainty in Alabama over same-sex marriage centers on Roy Moore, chief justice of the state’s Supreme Court. On Sunday night,Moore told Alabama’s probate judges not to issue marriage licenses, defying a federal judge. This is not the first time Moore has refused to follow a federal judge’s ruling.

We all remember when Judge Moore refuse to remove that large stone Ten Commandments monument from the courthouse.  The Post explains

Until this week, Moore’s claim to fame was being the “Ten Commandments judge.” The controversy that led to Moore being ousted from the bench involved a large monument to the Ten Commandments that had been installed in the Alabama Judicial Building in Montgomery.

This two-and-a-half-ton monument, and Moore’s fight to keep it in place, served as a cultural flash point. Civil liberties groups argued that it violated the church-state separation, while conservative and religious supporters of Moore defended his actions.

The Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State filed a lawsuitarguing that the monument violated the constitutional prohibition against religious endorsement. The U.S. Court of Appeals for the 11th Circuit agreed, ordering Moore to remove the monument.

He was then removed from his judgeship by the state ethics panel, but was reelected in 2012.

2300alabama-ssm-0209

So as a result of Judge Moore deciding the Thomas dissent was better than the refusal to grant a stay, Alabama is in chaos.  There are now counties where no marriage licenses are being issued at all, some that are just refusing same-sex couples, and others who are complying with the district court.

There will be more lawsuits as people are denied the right to marry.  I wonder what Justice Thomas will do when the next appeal from Alabama reaches the Supreme Court, but I think the Alabama ethics panel will be having another hearing with Judge Moore.

The Supremes, Judge Posner, and gay marriage

The news late last week that the Supreme Court would hear an appeal from the Sixth Circuit ruling upholding bans on same-sex marriage in Ohio, Michigan, Kentucky, and Tennessee brought to mind the Seventh Circuit ruling last fall written by Judge Posner.  Mark Joseph Stern writing in Slate noted that suddenly there was a “race” among judges to …”write the one marriage equality opinion that history will remember.”  But Stern wrote

Thursday’s ruling by 7th Circuit Judge Richard Posner, which struck down Indiana’s and Wisconsin’s gay marriage bans, is a different beast altogether. In his opinion, Posner does not sound like a man aiming to have his words etched in the history books or praised by future generations. Rather, he sounds like a man who has listened to all the arguments against gay marriage, analyzed them cautiously and thoroughly, and found himself absolutely disgusted by their sophistry and rank bigotry. The opinion is a masterpiece of wit and logic that doesn’t call attention to—indeed, doesn’t seem to care about—its own brilliance. Posner is not writing for Justice Anthony Kennedy, or for judges of the future, or even for gay people of the present. He is writing, very clearly, for himself.

Ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart.Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right. But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost anyinterpretation of the equal protection clause.

I spent time this morning reading Judge Poster’s opinion.  It is readable and understandable even by non-lawyers.  He takes each argument made by Indiana and then Wisconsin against same-sex marriage one at a time and uses precedent, social science, and history to demolish them.  Posner sets out to answer four questions.

Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society.

Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole?

Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well?

Throughout his decision, Judge Posner concentrates on children and marriage.  The same persons who argue against same-sex marriage are often the same persons who argue that the state needs to encourage heterosexual marriage to provide stability to children.

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

In Indiana a same-sex couple can adopt while in Wisconsin, one member of a same-sex couple can adopt.  So the logical conclusion is that marriage is just as important for same-sex couples with children as for heterosexual couples with families.  And he points out that those who say that same-sex marriage will some how erode or damage heterosexual marriage need only to look at the 10 year history in Massachusetts to see that there is no impact at all.

Judge Posner’s decision is full of “zingers” most aimed with impatience at irrational argument.  But he also takes aim at Justice Scalia citing his dissent in Lawrence v. Texas which struck down laws against sodomy.

…But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.

In the end, Judge Posner can find no rational argument against same-sex marriage.

Pete Prete with Equality Beyond Gender waved a Marriage Pride flag attached to an American flag outside the Supreme Court in Washington on Friday.

Pete Prete with Equality Beyond Gender waved a Marriage Pride flag attached to an American flag outside the Supreme Court in Washington on Friday.

The Supreme Court will hear arguments on two questions:  The right to marry and the right to have out-of-state marriages recognized.  Because there are four states in the appeal with four different questions, the Supreme Court in accepting the appeals wrote the questions they will try to answer.  Some in the legal community were alarmed, but the New York Times quotes Harvard Law professor, Lawrence Tribe

“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard.

But Professor Tribe also voiced a small note of caution.

“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

I haven’t seen the appeal documents, but if the arguments are anything like those from Indiana and Wisconsin and I assume they are as those are the arguments being made nationally, the Supreme Court need to look no further than Judge Posner’s decision for answers and require the right to marry in all states.  And, after all, Justice Scalia has already concluded that once sodomy laws are found unconstitutional, same-sex marriage must follow.  I predict a 7-2 decision in favor of the right to marry.  We will see in June if I am correct.

Photograph:  Jabin Botsford/The New York Times

Like a speeding locomotive

That’s the image that comes to mind when I think of how quickly things have moved when it comes to marriage equality.  It has only been 10 years since same-sex marriage became legal in Massachusetts.  And only a few years longer that that since Vermont adopted civil unions.  For a while I was keeping track and blogging every time a state was added, but I just couldn’t keep up – or keep track.  Now Federal benefits are available to all legally married couples regardless of the state in which they reside and the Supreme Court is letting stand Appeals Court decisions ruling prohibitions unconstitutional.

According to a post in the Washington Post’s “The Fix”, most gay Americans now live in states with marriage equality.

As the map of where gay marriage is legal has shifted and changed over the past few years, we’ve tracked a harder-to-measure component of the new laws: How many gay Americans live in states that allow them to marry.

In June, we anticipated that the tipping point was imminent. Based on data from Gallup surveys in 2012, a higher percentage of the country’s gay population already lived in gay-marriage-legal states than the population on the whole. With Monday’s Supreme Court non-decision, the percentage of gay Americans and Americans on the whole living in states where gay marriage is legal topped 50 percent.

Gay Marriage map

I am unclear as to how Gallup determined the percentage of person living in a state who were gay or lesbian, but given the way Gallup polls, I assume it is by self-reporting in response to a question.  According to the Fix, marriage equality has arrived in states with a lower population of gay residents.

So what happens next is anyone’s guess but with the growing numbers of same-sex marriages, I’m not sure how a Supreme Court ruling to the contrary could be implemented without chaos.  A more likely scenario is a decision like the one in Loving v. Virginia.  When the Court finally ruled on interracial marriage, the majority of states already allowed such unions.

This does not mean that the opposition will not fight on.  A story in the New York Times today reported that

Leading opponents of same-sex marriage vowed on Wednesday to push ahead with their legal fight, noting that several federal appeals courts had not yet ruled on the issue and that the Supreme Court could still decide to leave it up to the states.

Even as the list of states authorizing same-sex marriage swells, the opponents noted Justice Anthony M. Kennedy’s order on Wednesday totemporarily block a federal appeals court ruling striking down the marriage restrictions in Idaho. The temporary order came as a surprise to many advocates on both sides of the issue, since the Supreme Court on Monday had allowed similar decisions from three other appeals courts to take effect.

“The marriage battle will continue,” said Jim Campbell, a senior legal counsel at Alliance Defending Freedom, a Christian legal group that has defended marriage restrictions in several states.

Opponents seem determined that each state should have a right to define its marriage laws, but that just doesn’t seem likely to me given the Loving decision as a precedent.

“If the liberals on the court had the votes to declare same-sex marriage a constitutional right, why didn’t they take any of the cases on offer Monday?” asked Brian Brown, the president of the National Organization for Marriage.

“That gives hope that the Supreme Court will not launch another Roe v. Wade,” Mr. Brown said, referring to the 1973 decision legalizing abortion nationwide.

Mr. Brown also rejected the argument that, once same-sex marriages had been allowed in many states, the law could not be rolled back if the voters wanted to do so.

But most legal experts drew the opposite conclusion from Monday’s action.

“We know, from the court’s willingness Monday to allow all these marriages to go forward,” that opponents of same-sex marriage “are virtually guaranteed to lose” before the current Supreme Court, said Michael C. Dorf, a constitutional expert at Cornell Law School.

In the meanwhile, I have friends getting married, both same-sex and opposite sex.  I also have friends in both categories who have or are getting divorced.  All people want is to live their own lives and to have the legal protections due them.  I think the opposition needs to get out of the way of the speeding locomotive.

Map:  The Washington Post

 

 

Anita Hill and Sandra Fluke: Does 20 years really make a difference?

Tonight while I was surfing around looking for updates on the Malaysian jet still missing somewhere between Malaysia and Vietnam – or perhaps somewhere else – I happened upon a long story in the New York Times about the new documentary about Anita Hill.  Sheryl Gay Stolberg’s review of the movie is actually a long profile of Hill.  I’m very happy that Hill allowed the documentary to be made because it means that a whole new generation of young men and women will be introduced to a remarkable person.

Back then there was no social media, no Facebook, no Twitter but the word still spread quickly among women that someone was about to accuse a nominee for the United States Supreme Court of sexual harassment.  No one knew exactly who she was, but we knew this was going to be important.  I was in Washington, D.C. that day at a meeting, but I remember sitting in a bar that afternoon with several other women all of us transfixed by what was happening on the television.  I was astounded that none of the men, and the Judiciary Committee was all white men, had any clue.  Stolberg puts it this way

“I think this event changed the course of her life and gave her a public mission that she took on,” said Fred Lawrence, the Brandeis president and a Yale Law School classmate of Ms. Hill’s. “It’s not a duty that she volunteered for, but I think she understood that the circumstances had put her in a unique role, and gave her a voice.”

The hearings were a surreal spectacle, as senators prodded an obviously uncomfortable Ms. Hill through awkward testimony about penis size, pubic hair and a pornographic film star known as Long Dong Silver — shocking public discourse at the time. When the hearings ended, Ms. Hill returned to teaching commercial law at the University of Oklahoma, trying, as she says in the film, to find “a new normal.” It proved difficult.

Ms. Hill at the hearings.

Ms. Hill at the hearings.

And I think every women who watched the hearings remembers that electric blue suit.

There were thousands of letters of support, but also death threats, threats to her job. Conservative state lawmakers wanted her fired; fortunately, she had tenure. Even years later, she felt “a discomfort,” she said. One dean confided that he had tired of hearing colleagues at other schools remark, “Isn’t that where Anita Hill is?”

In Washington, her testimony reverberated. Sexual harassment claims shot up. “Our phones were ringing off the hook with people willing to come forward who had been suffering in silence,” said Marcia D. Greenberger, founder and co-president of the National Women’s Law Center in Washington, where Ms. Hill serves on its board.

Congress passed a law allowing victims of sex discrimination to sue for damages, just as victims of racial discrimination could. Waves of women began seeking public office. In 1991, there were two female senators. Today there are 20.

Clarence Thomas was confirmed even though, as Hill puts it

“I believe in my heart that he shouldn’t have been confirmed,” she said in a recent interview, acknowledging that it irritates her to see Justice Thomas on the court. “I believe that the information I provided was clear, it was verifiable, it was confirmed by contemporaneous witnesses that I had talked with. And I think what people don’t understand is that it does go to his ability to be a fair and impartial judge.”

And there are still those who believe she made the whole story up. Then I started thinking about a more recent woman’s experience with Congress. This is from a story in the Daily Beast.

Rep. Darrell Issa’s Thursday hearing went off the rails early. “What I want to know,” demanded Rep. Carolyn Maloney, D-NY, as she looked at the all-male panel of clerics before her, “is, where are the women?”

The hearing, titled “Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience,” was about religious freedom, Issa said, but it took place against the backdrop of a national controversy regarding the White House’s mandate that all employers provide birth control as part of their insurance plans.

As it happens, there was one woman present prepared to testify on the issue of birth control. Sandra Fluke, a 30-year-old Georgetown University Law School student, had been contacted earlier in the week by committee minority leaders after Democrats saw a video of her speaking about the mandate at the National Press Club on February 9.

Sandra Fluke

Sandra Fluke

Congress had a woman to ask the question, but the panel was all men.  Fluke went on to testify at an informal hearing arranged by Democratic women.  The Huffington Post described it this way

This week she received almost rock-star treatment as the lone witness at an unofficial Democratic-sponsored hearing. While the rest of the Capitol was mostly empty, Democratic leader Nancy Pelosi, three other Democrats and dozens of mainly young women supporters crowded into a House office building room to applaud Fluke as she spoke of the importance of reproductive health care to women.

Prominently displayed by Rep. Carolyn Maloney, D-N.Y., was a photo of five religious leaders, all men and all appearing at the invitation of the Republican majority, testifying last week with Fluke visible in the background, sitting in the visitors’ section.

Democrats pounced on that image of a hearing discussing contraceptive rights being dominated by men while the one person Democrats had asked to appear on the witness stand, a woman, was turned away. Pelosi, D-Calif., said they had since heard from 300,000 people urging that women’s voices be heard on the issue.

“We almost ought to thank the chairman for the lack of judgment he had,” in denying a seat to Fluke, Pelosi said.

Committee chairman Darrell Issa, R-Calif., had said at last week’s hearing that the panel’s focus was on whether the administration policy was a violation of religious freedom. He said at the time that Fluke, invited by Democrats in her capacity as former head of Georgetown Law Students for Reproductive Justice, was not qualified to speak on the religious rights question.

“I’m an American woman who uses contraceptives,” Fluke said, when asked Thursday by Rep. Elijah Cummings, D-Md., about her qualifications to speak on the issue.

So maybe we have made progress in the years since Anita Hill.  Some Republican men don’t seemed to have learned much, but there were plenty of woman and men in Congress who wanted to hear Fluke’s testimony.  And we can thank Anita Hill for her part in making change happen.

Photograph of Anita Hill: American Film Foundation

Photograph of Sandra Fluke:  Getty Images

Daily Beast story: Matthew DeLucca

Huffington Post story: Jim Abrams

Can we cure Congressional dysfunction?

The pundits are dissecting the results of the local and state elections and speculating on what, if any, effect they will have on the 2014 mid-terms and the 2016 Presidential election.  There is plenty of time for that.  I want to talk about the current dysfunction in Congress.

George Packer posted an interesting comment in the New Yorker yesterday.  His Daily Comment began

Going to cast a vote Tuesday, less than three weeks after the government shutdown and the near-default, put me in a sour mood. Usually, I exercise the franchise in a state of embarrassing, heart-swelling affection for the imperfect republic, my under-informed fellow-citizens, confused poll workers, even the dubious names on the ballot. But yesterday, with the gross malpractice of elected officials in Washington still fresh in mind, I walked to the local polling place thinking about some of the stupidities of our democracy, grouping them into two categories: necessary and unnecessary.

His list of unnecessary traditions includes the filibuster.  While the Senate is slightly more functional than the House, the idea that every piece of legislations needs 60 votes to pass needs to be changed before that morphs into a new “tradition”.

The filibuster is an unnecessary stupidity. Senators speak reverently of the filibuster as if it were inscribed in the Preamble to the Constitution, but it’s nowhere in our founding documents. The Senate created the rule almost by accident, in 1806, and for around the next hundred and seventy years used it sparingly, until self-restraint began to disappear from the upper chamber. It has almost no positive effect—try to think of the last time a truly terrible bill was prevented from being stampeded into law by the Senate’s failure to pass a cloture vote. Rampant abuse has exposed the filibuster as an anti-democratic tool of the defeated minority to thwart the will of the elected majority.

Some senators keep making noises about reforming, if not abolishing, the filibuster—most recently last month, when two Obama Administration nominees were blocked by Senate Republicans. But it never happens, and I don’t think it ever will happen, which only shows the profound conservatism of our democratic system. We’re stuck with necessary stupidities because trying to eliminate them would do more damage than it’s worth, but why are we stuck with so many unnecessary stupidities?

While we are talking about traditions, what about the tradition that an president’s nominees get approved absent clear evidence of criminal past, lack of qualifications, or some moral issue.  The putting a “hold” on a nominee, sometimes almost at random, because the Senator wants something else to happen, is an other tradition we don’t need.  At least the Senate has managed to pass Immigration Reform, a non-sequester budget, and the Employment Non-discrimination Act (ENDA).  There seems to be little hope for ENDA or Immigration Reform in the House.

IVoted

Packer goes on to cite the New York Times columnist, Joe Nocera on what we might do to fix some of the dysfunction.  Nocera’s suggestions include moving election day to the weekend, term limits for the Supreme Court, and an end to gerrymandering.

Move elections to the weekend. Do you know why elections fall on a Tuesday in early November? I didn’t either. According to a group called Why Tuesday?, it goes back to the 1840s, when “farmers needed a day to get to the county seat, a day to vote, and a day to get back, without interfering with the three days of worship.” Today, of course, casting your ballot on a Tuesday is an impediment: lines in urban areas are long, people have to get to work, etc. It is especially difficult for blue-collar workers — a k a Democratic voters — who don’t have the same wiggle room as white-collar employees.

Chris Rock — yes, Chris Rock — has been quoted as saying that this is the reason Election Day remains on Tuesday. “They don’t want you to vote,” he said in 2008. “If they did, they wouldn’t have it on a Tuesday.” Even if you aren’t conspiratorially minded, you have to admit that moving elections to the weekend makes a ridiculous amount of sense.

Moving election day is a solution, but we could also expand early voting and explore voting by computer and mail.  Most of all we need to do away with the absurd new ID laws where there is no evidence of widespread fraud which so far no one in Florida, Texas, North Carolina and other states has produced.  Why have ID laws when we could just prosecute anyone who tries to vote illegally?

Nocera also proposes terms limits for the Supreme Court.

 Somewhat to my surprise, most of the experts I spoke to were against Congressional term limits. Norman Ornstein, the resident scholar at the American Enterprise Institute, believes that the unintended consequences of term limits would outweigh the benefits. (He cited, among other things, the likelihood that “they come to office thinking about their next job.”)

Instead, Ornstein proposes term limits for Supreme Court justices. If he could wave his magic wand, he would give the justices one 18-year term, and he would stagger them, so that a new justice joined the court — while another departed — every two years. Ornstein likes this idea, in part, because presidents would be willing to nominate older justices; now, the emphasis is on younger nominees who can remain on the court, and influence American society, for decades. I like the idea because nothing fuels partisan politics like a Supreme Court nomination. If the parties knew there would be a new nominee every two years, it might lessen the stakes just a bit, and bleed some of the anger out of politics.

I’m not sure about this, but it is interesting to contemplate.

The next suggestion, open primaries, is something we have in Boston for municipal elections.  I should note that very few candidates here identify as Republicans (I think there was one running for Mayor), but that shouldn’t hold true for most places.

Why are so many extremist Republicans being elected to Congress? A large part of the reason is that highly motivated, extremist voters dominate the current Republican primary system. Mickey Edwards, the former congressman who is now at the Aspen Institute, wrote a book last year called “The Parties Versus The People: How to Turn Republicans and Democrats Into Americans.” At the top of his list of reforms is open primaries — which would allow anybody to vote for any candidate. Indeed, California has already adopted an open primary system, in which the top two vote-getters run against each other in the general election — even if they are from the same party. As Adam Nagourney wrote in The Times a few weeks ago, this reform is one of the reasons California’s Legislature has become less partisan and more productive. Chances are good that the same reform at the federal level would produce the same result.

California also provides an example that could reduce, if not end, gerrymandering.

As a tool to entrench the party in power, few maneuvers can beat gerrymandering. It’s another reason that the Tea Party Republicans can pursue an agenda that most citizens disagree with: thanks to gerrymandering, their districts could not be safer. Here, again, California offers a better model. It has a 14-person commission made up of five Democrats, five Republicans and four people unaffiliated with either party. In 2011, the new commission redrew lines in a way that broadened the diversity of many districts. That is exactly what should happen everywhere.

Nocera talks about bringing back small donors.  I think this will take a Congressional change to modify or repeal Citizens United.

Many of these suggestions have to be implemented on the state/local level, but we should start talking about them now.  Change comes slowly because of “tradition” and people wanting to retain power, but unless something changes we are going to sink further and further into dysfunction.