Supreme Court in Flux

Justice Clarence Thomas celebrated his tenth anniversary of not asking questions during oral arguments in a case about gun rights. He fired off not one but ten questions to Justice Department lawyer Ilana H. Eisenstein, who was defending a federal law that bans anyone with a misdemeanor domestic violence conviction from owning a gun. Two Maine men claimed that pleading guilty to hitting their partners shouldn’t stop them from owning guns. Thomas’ focus asked about any other area in which “a misdemeanor violation suspends a constitutional right.” The sound of Thomas’ voice produced “audible gasps” from the audience.

The case, Voisine v. United States, isn’t about the Second Amendment although Thomas tried to make it the issue. The high court agreed to review only the question of whether law can be violated by reckless conduct rather than intentional actions and refused the petition’s second question, whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment. A 4-4 split would hold up the ruling from the 1^st Circuit Court that rejected the men’s arguments.

Despite constitutional law, Republicans on the Senate Judiciary Committee announced that the committee will not hold hearings on any of President Obama’s nominees for the Supreme Court. In addition, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) stated that will not support a vote and may not accept a White House invitation to talk about a nominee. Grassley said:

“I don’t care if I ever go down in history. I’m here to do my job.”

Grassley’s job is to fulfill his duties, honor the U.S. Constitution, and prepare for confirmation hearings. Instead, he puts his ideological interests ahead of his job—one that pays $174,000 a year. Grassley is also blocking the nomination of a top health official in revenge for the Obama administration’s not investigating Planned Parenthood for the 12^th time.

Scalia’s death came almost exactly in the middle of the current court term, and several cases with serious consequences will be determined by a court split between four progressives and four conservatives—with one of those sometimes voting with the progressives. For these cases, a split will retain the lower court’s decision, and a 5-3 will probably turn progressive.

Former Virginia Gov. Robert McDonnell: Scalia’s death may put him in prison. Convicted of all 11 corruption-related charges against him, he was sentenced to two years in prison. The 4^th Circuit Court affirmed his conviction, but the Supreme Court decided to hear the case. Justice Ruth Bader Ginsburg may let McDonnell out of jail because she narrowed what counted as honest services fraud in Skilling (2010). That was for a CEO, however, and not an elected official.

Friedrichs v. California Teachers Association: A wealthy organization tried to stop public sector unions from collecting mandatory dues to fund collective bargaining. The lower court ruled against them, meaning that the unions in California and 22 other states keep their right to collect dues with a 4-4 split or majority in their favor.

Evenwel v. Abbott: Texas attempted to distort the “one-person, one-vote” democracy, established in Reynolds v. Sims (1964), by claiming that districts are determined not by residents but eligible voters. The lower court upheld counting all residents. With Scalia’s vote, many states might be forced to redraw their congressional maps to give more power to white voters and less to communities with large numbers of immigrants.

Zubik v. Burwell: The relationship between “religious liberty” and the Affordable Care Act, first covered in Hobby Lobby, reappears in this case of whether signing forms opting out of providing contraceptives for employees violates a corporation’s religious beliefs. Every circuit court except the 8^th upheld the president’s administration rules allowing women to obtain health plans that cover birth control through corporations’ statements that they will not provide this insurance. Justice Anthony Kennedy may vote with progressives to uphold the rules, but a split could discriminate against women in the 8^th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota).

Whole Woman’s Health v. Hellerstedt: In this threat to Roe v. Wade, the case covers an appeal from a lower court allowing burdensome restrictions on clinics that perform abortions. A 4-4 tie would allow Texas to create these restrictions, but it would not require the rest of the country to accept them. If Justice Anthony Kennedy sides with the four progressives because the Texas law exerts an “undue burden,” the Texas decision would be overturned.

Fisher v. University of Texas: This zombie case that just won’t die also comes from Texas. The affirmative action case concerns the school’s including race in its admissions plan. This decision gets only seven votes because Justice Elena Kagan recused herself after working on the case when she was solicitor general. If Kennedy moves to the right, the court will strike down the university’s affirmative action program will be struck down. Scalia’s death eliminates the possibility of a tie vote.

There’s no doubt of how Scalia would vote. Among other egregious statements during oral arguments, he said that he was not “impressed by the fact that the University of Texas may have fewer” Black students. He added, “Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many Blacks as possible.” Kennedy seems to lean toward affirmative action, which would allow the University of Texas to retain its current policy.

United States v. Texas: The three-judge panel of the 5^th Circuit upheld a federal district ruling against President Obama’s plan to defer deportation for almost five million undocumented immigrants and refused to stay that decision. A 4-4 split would be a win for Texas, defeating the president’s program in three states—Texas, Louisiana, and Mississippi—but authorizations could proceed in the other 12 circuit courts.

Carbon emissions reductions: President Obama charged the EPA with a 32-percent reduction by 2030, but the Supreme Court temporarily blocked the plan with a 5-4 emergency order, put on hold pending a decision from the DC Circuit Court. The generally liberal court refused to grant the stay before the high court made this move and will hear the case this summer. Two of the three judges on the panel of the lower court assigned to hear the case are Democratic appointees, and the third, a George W. Bush appointee, leans toward supporting the EPA plan.

The high court could decide to rehear cases with a 4-4 split when a ninth justice is confirmed.

The impact of Scalia’s death has already been felt: Dow Chemical has decided not to appeal a $1.06 billion judgment against them and settle for $835 million. A 2013 Kansas court ruling was found liable for price-fixing through collusion with four other chemical companies in overcharging customers for products used to make urethane foam. Scalia’s death meant that a 4-4 split decision would require Dow to pay the $1.06 billion or they would be facing a more liberal court if President Obama succeeds in putting a justice on the Supreme Court. Dow pulled the case because it needed Scalia’s vote

Dow isn’t alone in wanting a conservative court. Oral arguments indicated that Tyson Foods might lose almost $5.8 million in a class action judgment, and Wal-Mart is also awaiting the results of a $187 million class action suit. Microsoft is trying to throw out a class action lawsuit from Xbox 360 owners claiming the videogame console has a design defect.

Scalia has led conservative judges in curbing class-action litigation against businesses, giving 5-4 victories to Wal-Mart (2011) and Comcast (2013). He has given billions of dollars to corporations by protecting them from liability, limiting access to justice for workers and consumers, and allowing the companies to evade regulations in climate, discrimination, and monopolies. He also gave corporations the right to spend unlimited funds in elections through Citizens United so that they can hire their own legislative members, both state and national. Now, the Supreme Court is evenly split, and progressives have appointed the majority of judges in nine of the 13 federal courts of appeal.

Scalia was a radical right-wing ideologue who used his purported “original” philosophy to support his personal beliefs. He favored unlimited corporate election spending and uncontrolled gun ownership. He opposed reproductive rights, universal health care, same-gender marriage, affirmative action, environmental protection, and rights for voting, immigrants, labor, and LGBT people. Questioned about his vote to appoint George W. Bush as president in 2000, he snapped, “Get over it.” His majority opinion allowing law enforcement to chase people without probably cause or reasonable suspicion, Scalia quoted Proverbs: “The wicked flee when no man pursueth.”

As for the GOP position that President Obama shouldn’t nominate a justice, 14 presidents, one-third of the total, appointed 21 justices during presidential election years starting with George Washington. Over half were Republicans includingAbraham Lincoln, Herbert Hoover, William Howard Taft, Dwight Eisenhower, Richard Nixon, and Ulysses S. Grant. Ronald Reagan’s nomination for justice was approved during his last year. Six presidents filled Supreme Court seats after their successors had been elected—Benjamin Harrison, Andrew Jackson, Martin Van Buren, John Tyler, and John Adams.

My comment to the whiny, lying GOP senators? “Get over it.”

‘Justice Scalia,’ an Oxymoron

Stock in aluminum foil must have gone up last week with its use by the tin-hat conspiracy people after the death of Antonin Scalia last week. One example of craziness is that God killed Scalia to elect Ted Cruz for president. Rick Wiles has used numerology to prove that President Obama killed Scalia. According to Wiles, “The 13th was the 44th day of 2016. Obama is the 44th president of the United States.” Wiles concluded that Washington officials are terrified:

“Deep down they know, the regime murdered a justice … This is the way a dictatorial, fascist, police state regime takes control of a nation.”

Scalia left a 30-year trail of decisions destructive to democracy and equal justice while pretending to be an “originalist” who channeled the minds of the Founding Fathers in determining exactly what they intended in the Constitution. Using ridicule mixed with exaggerated legalese, he was declaimed as “brilliant,” but he actually followed the “textual” approach to support his personal conservative ideology.

In 2009, Scalia declared that nothing in the Constitution “forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Scalia’s last act was to use “textualism” to put Gustavo Garcia to death in Texas. Executing intellectually disabled people was also just fine with Scalia, demonstrated by his dissent in Atkins v. Virginia (2002). His rationale is that juries continue to sentence mentally disabled people to death. Scalia ignored the Constitution’s Eighth Amendment prohibiting  the imposition of “cruel and unusual punishment.”

In 2005, Scalia upheld an Indiana law barring the vote to people without photo IDs. The GOP excuse for these laws throughout the nation is supposedly the prevention of voter fraud, but in the former century Indiana had not found one case of one voter illegally impersonating another. Throughout the nation, approximately seven percent of possible voters lack the ID—most of them people of color, elderly, students, and poor whites. Getting an ID in Indiana was also onerous: the average poor person in the state lived an average of 17 miles from a county seat. Scalia said, “Seventeen miles is 17 miles for the rich and the poor.”

In 2013, Scalia was part of the voting block of five who overturned the Voting Rights Act. He attributed the law, originally passed in 1965 and clarified in 1970, 1975, 1982, 1992, and 2006, to “a phenomenon that is called perpetuation of racial entitlement…. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes…. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution…..” The only “original” part of the Constitution used by Scalia is the racist views of the 18^th-century Constitution; Scalia ignored later amendments enfranchising all people in the U.S. including women and people of color.

The decision to overturn the Voting Rights Act has recently exploded in North Carolina, forced to postpone its congressional district elections for almost three months because the state Supreme Court requires redrawing the gerrymandered congressional districts. (An example at the right is North Carolina’s 12^th Congressional District.) Although required to redraw the lines of some districts, the GOP legislature redrew every district line to maintain a 10-3 Republican majority in the House. In its first major action since Scalia’s death, the U.S. Supreme Court declined to address the state court’s decision; Scalia would probably have led SCOTUS to hear the case.

Republicans in North Carolina freely admit that the purpose of redrawing the map was to send Republicans to the U.S. House. GOP state Rep. David Lewis said, “I think electing Republicans is better than electing Democrats.” Lewis added, “I acknowledge freely that this would be a political gerrymander which is not against the law.” A 2004 Supreme Court does permit political gerrymandering.

Another area in which Scalia led the Supreme Court was gun ownership, especially when he wrote the 5-4 majority decision in District of Columbia v Heller (2008), striking down a handgun ban. This case shifted the court’s position from protecting gun ownership connected to belonging to a state militia to maintaining that the Constitution allows people to possess as many guns as they want. Although Heller didn’t address restrictions of state and local governments, McDonald v. City of Chicago (2010) ruled that the Second Amendment applies to individual states. Recently, the high court has avoided cases regarding the Second Amendment, but the court, however, might hear an appeal to the Second Circuit Court of Appeals upholding assault weapon bans in New York and Connecticut.

Scalia holds the worst record for Supreme Court justices in recent decades on women’s issues. He wanted to overturn Roe v. Wade and always voted anti-choice. He declared that a corporation could be religious in the Hobby Lobby decision denying contraception coverage to women by “religious” corporations. He was the sole dissenter in a case allowing women to attend the Virginia Military Academy. He voted against equal pay in Lilly Ledbetter’s case of sex discrimination.

According to Scalia, “ladies” are not protected by the Constitution. The Equal Protection Clause of the 14^th Amendment requires each state to provide equal protection under the law to all people within its jurisdiction. To Scalia, that clause is for racial but not gender discrimination. In a 2011 interview, Scalia said:

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

Another decision against women came from Dukes v. Wal-Mart Stores, Inc., with a 5-4 decision reversing a district court’s decision to certify a class action lawsuit from 1.6 million female Wal-Mart employees claiming gender discrimination. The court rejected a class lawsuit with the justification that the plaintiffs lacked enough in common to constitute a class.

Scalia didn’t even want women on the Supreme Court, as Sandra Day O’Connor can testify. Although O’Connor was confirmed for the Supreme Court in 1981, a woman’s restroom wasn’t added to the justices’ robing room until 1993 when Ruth Bader Ginsburg. In general, Scalia described O’Connor’s reasoning as “irrational,” and not to “be taken seriously.” In Planned Parenthood v. Casey (1992), a case that confirmed Roe v. Wade, O’Connor voiced the “undue burden” test for abortion regulations that caused the court to oppose Scalia. He charged that this test was “unprincipled” and “will prove hopelessly unworkable in practice.” His dissent denounced O’Connor and the others in the majority for their “almost czarist arrogance.”

Blacks are better off in slower schools, according to Scalia. During oral arguments in Fisher v. University of Texas at Austin, Scalia said:

“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”

Scalia will have nothing more to say about this affirmative action case. Argued on December 9, 2015, the case will most likely be decided by the remaining eight justices.

Much of Scalia’s vitriol was directed toward LGBT people:

Homosexuality like murder: Scalia sympathized for Colorado residents who wanted to protect themselves from gay sex like they would from murder but lost that protection when Romer v. Evans (1993) overturned a Colorado amendment allowed anti-gay discrimination. Scalia didn’t think that animosity toward homosexuality was a valid argument because he “had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.”

Homosexuality like incest: After the Supreme Court struck down a Texas ban on sodomy in Lawrence v. Texas (2003), Scalia wrote, “States continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex’: prostitution, adult incest, adultery, obscenity, and child pornography.” He argued gay sex should be criminalized because of moral objections to homosexuality.

Homosexuality like flagpole sitting: Scalia’s analogy in Lawrence v. Texas: “Suppose that all the states had laws against flagpole sitting at one time [which they then overturned].Does that make flagpole sitting a fundamental right?”

Marriage equality nothing more than “fortune cookie justice”:  In response to legalized same-gender marriage in Obergefell v. Hodges (2015), Scalia mourned, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He also described the majority opinion as being “couched in a style that is as pretentious as its content is egotistic.”

“Justice Scalia” should go down in history as an oxymoron, defined by connecting contradictory words. While sitting on the Supreme Court, Scalia promoted himself instead of justice.

GOP Hypocrisy Expands with Scalia’s Death

Last weekend’s events—the death of Supreme Court Justice Antonin Scalia and the GOP presidential candidate in South Carolina less than two weeks before that state’s primary—occupied the media. The Saturday night debate showed the shift in presidential debates: in the past, they focused on the people on the stage, but the crowd attending the debate is now part of the performance. Ugly heckling and booing caused Political Wire’s Taegan Goddard to comment that the show seemed to be “taking place in a Roman coliseum,” and Republican David Frum bewailed that the audience  was “joining in the bloodbath.”

Prominent conservative pundit Rich Lowry called the debate a “train wreck,” and Frum asked if the GOP looks “like a party ready to govern anything.” GOP pollster Frank Luntz, who taught the conservative side how to speak in loaded language that hid their efforts to destroy democracy in the nation, said:

“Seriously, this is insane. The GOP is destroying itself tonight, and they have no one to blame but themselves.”

Trump has set the tone for debates. Kasich tried to stop the demolition derby and Ben Carson commented on how few questions he got, but the other four tried to out-insult the others.

While the candidates battled about other issues, they declared consensus in their firm belief that President Obama lacked the right to nominate a replacement for Justice Scalia, who died February 13, 2016, the same day as the debate. An hour after the announcement of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) said that the president, with 11 months left in his second term, should leave the nomination to the next president and promised that the Senate would not acknowledge the nominee if the president were so foolish as to making an appointment.

Of the 54 Senate Republicans, 33 opposed any appointment this year. They demand that any nominee continue Scalia’s “legacy”—one of the most conservative on the Supreme Court. Eleven senators indicated a possible willingness to consider a nominee, and another ten are silent on the issue. Seven of the 11 Republicans on the Senate Judiciary Committee, the first stop for any judicial nomination, concurred with McConnell by announcing they would not consider any appointment from President Obama.

Only a decade ago, however, McConnell said:

“Any President’s judicial nominees should receive careful consideration.  But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent.  The stakes are high . . . . The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.”

He had held this position for the previous 35 years. In 1970, McConnell wrote:

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The proper role of the Senate is to advise and consent to the particular nomination, and thus, as the Constitution puts it…This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”

The qualifications, according to McConnell, are competence, achievement/distinction, temperament, ethical behavior, and no criminal record. Nothing about political ideology. McConnell voted for a Supreme Court justice late in a president’s term, supporting Justice Anthony Kennedy, nominated only 13 months before the end of Ronald Reagan’s second term. Over a century has lapsed since the president failed to nominate or the Senate failed to confirm a nominee in a presidential year because of the impending election.

In the past, McConnell has stated other rational—and accurate–positions that disappeared after Barack Obama was elected president:

“The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives to him the power to nominate.

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

Reagan supported replacement of justices in the last year of a presidential term:

“The Federal judiciary is too important to be made a political football. I would hope, and the American people should expect, not only for Judge Kennedy’s confirmation but for the Senate to get to work and act on 27 other judicial nominations that have been left in limbo for quite awhile now.”

In July 2008, during the last year of George W. Bush’s second term, Republicans convened a hearing entitled “Protecting American Justice: Ensuring Confirmation of Qualified Judicial Nominees” in reaction to the “Thurmond Rule,” a demand from racist senator, Strom Thurmond, that a president be limited by time to nominate a justice. Almost half a century ago, Thurmond tried to make this mandate in retribution to President Lyndon Johnson’s Civil Rights Act by blocking the president’s nomination of Justice Abe Fortas as Chief Justice in 1968. No rule was passed, and Thurmond said gave the last six months as the timeline for no nominations. Comments from participants in the 2008 hearing:

Sen. Chuck Grassley (R-IA):

“[The idea that July 2008 would trigger the] Thurmond Rule ­­– that’s just plain bunk.  The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”

Eight years later, Grassley said:

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year… it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

Sen. Lamar Alexander (R-TN) said in 2008:

“There’s no excuse for not considering and voting upon a well­ qualified judicial nominee in the United States of America today…  [J]ust because it’s a presidential election year is no excuse for us to take a vacation.  And we’re here.  We’re ready to go to work.”

Now, Alexander wants to allow the next president to fill this lifetime appointment to the Supreme Court.

Sen. John Cornyn (R-TX), in 2008, wanted the two parties to work together “to confirm qualified men and women to the federal bench” in an election year–“to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.”

Mitch McConnell (R-KY) echoed these ideas:

“I think it’s clear that there is no Thurmond Rule.  And I think the facts demonstrate that.”

GOP Sen. John McCain said in 2005 that if Democrats should “win the next presidential election,” they should choose Supreme Court nominees because “that’s the way the system works.” McCain has now reversed this opinion.

In the Washington Post, Paul Waldman wrote about the change in the GOP:

“[Republicans] haven’t just grown more ideologically conservative in recent years, they’ve also grown more procedurally radical. Again and again, they’ve decided that the system of formal and informal norms that make the government work can be discarded if it becomes inconvenient.”

Republicans started out with the argument that there is no history of a president nominating a Supreme Court justice in his last year. Once that excuse was totally debunked, they decided it would be cruel to the nominee because Senate will destroy that person’s reputation. Sen. Ted Cruz (R-TX) said:

“I think that hearing would end up very politicized. And I don’t think it would be fair to the nominee.”

Sen. Pat Toomey (R-PA) made a similar argument:

“[I]t might be just as well not to have a hearing that would, sort of, might mislead the American people into thinking that this is just about the qualifications of the candidate, because it’s bigger than that.”

One reason for the shift in attitude may be a fear of the Senate reverting to a Democratic majority. Of the 36 senatorial positions up for grabs in the 2016 election, 24 are Republican. Of those 24, six are in for difficulty in being re-elected.

Another concern may be popular opinion, as seen in the results of the conservative Rasmussen poll indicating that 51 percent of likely voters believe that Obama should nominate Scalia’s successor, and 53 percent believe the Senate should not “reject or refuse to consider” the nomination. Only 35 percent favor McConnell’s blocking the president’s constitutional duty to appoint Scalia’s replacement.

Yet the cracks appearing in McConnell’s control of his Republicans seem to be disappearing,  and GOP senators are turning toward rejecting any nominee. For example, Sen. Lisa Murkowski (R-AK) earlier stated that the Senate should hold hearings. Her shift in opinion was revealed in tweets urging President Obama to “follow a tradition embraced by both parties” by yielding to the next president:

“If [the president of the United States] ignores precedent, I believe extraordinary circumstances give the Senate every right to deny the nominee an up or down vote.”

The biggest irony about the argument surrounding an appointment to replace Scalia this year comes from the justice’s famous “originalist” view of the Constitution, his belief that laws and judicial rulings in the 21^st century should following the text of the Constitution exactly as the Founding Fathers intended. Article II Section 2 of the Constitution states that the president is responsible for nominating members of the high court. Nowhere does the Constitution state “except when a Democratic president has almost a year to serve.”

As Frank Rich wrote:

“By refusing to act on the Scalia vacancy, the [GOP] party will once again brand itself as the party of obstructionism, government dysfunction, and animosity toward the growing majority of Americans who do not fit its predominantly white male demographic.”

Good News Despite Iowa Caucus

The Iowa caucus yesterday was a disaster for country that claims to be a democracy. Want to vote for a presidential candidate? Go to a corner and get counted. Want to decide on a delegate? Toss a coin. Want to have somebody run a caucus? Pick somebody who just showed up to vote and is clueless about structure and responsibilities?  Then there’s the winner. Marco Rubio came out first to declare himself a victor because he got third place for the Republicans—something accurately predicted by polls.

Then there’s the super PAC called Black Americans for a Better Future. Every donor is white. Of the $417,250 received in donations, $400,000 came from Robert Mercer, hedge-fund sugar daddy for Ted Cruz. The sole beneficiary of the super PAC is Raynard Jackson, a GOP black political consultant based in Washington, D.C. The money is  for events encouraging blacks to join the Republican party.

While the Iowa caucus controlled media content, Rep. Darrell Issa (R-CA) admitted that he and Rep. Trey Gowdy (R-SC), current chair of the Benghazi investigation, created the attack on Hillary Clinton to keep a Democrat from being elected president. They hope that the committee’s persecution and pushing Clinton’s emails can cause her to lose to “a devout socialist who wants to nationalize almost everything in America,” according to Issa. That can be the rationale for concentrating on her emails and overlooking other high-profile leaders  who use private servers for their government emails.

While House members constantly attack Clinton and repeal health care, Senate Majority Leader Mitch McConnell (R-Ky) protects his party members by doing nothing for the next nine months. No decision about ISIS, no criminal justice reform legislation, and probably no trade deals. Sens. Ron Johnson (R-WI) and Rob Portman (R-OH) claim that the Senate doesn’t even need to pass a budget, despite the GOP complaints about the Dems in the same position. McConnell plans to string out the 12 annual appropriation bills to appear that he’s doing something.  Of the 34 seats up for re-election in the Senate, 24 are held by Republicans including Johnson and Portman. Losing five of those seats turns the majority in the Senate back to the Democrats.

People of the United States did experience a victory last Friday. For a few months, the United States won’t be giving out any new permits to frack for oil or gas off the California coast in the Santa Barbara Channel off Ventura and Santa Barbara counties, where Exxon Mobil and other oil companies operate platforms. The settlement from the U.S. District Court in Los Angeles also requires the Department of the Interior’s Bureau of Ocean Energy Management and Bureau of Safety and Environmental Enforcement to analyze the environmental dangers of offshore fracking and acidization under the National Environmental Policy Act (NEPA). After the deadline of May 28, 2016, the public has at least 30 days to review and comment on the assessment.

Over 200 cases of fracking in state and federal waters off California have rubber-stamped permits from federal regulators, and the oil industry dumps over 9 billion gallons of wastewater into the ocean off the California coast every year. At least ten fracking chemicals routinely used offshore kills marine life, including otters and fish. Some of the many fish species that could be harmed by fracking pollution include white seabass, sand and kelp (calico) bass, lingcod, sheephead, ocean whitefish, yellowtail, bonito, barracuda, yellowfin tuna, sculpin, yellow croaker, barred surfperch and dozens of species of rockfish.

The settlement could affect oversight of all federally permitted offshore fracking, including that in the Gulf of Mexico which has never had any environmental review. The Marine Life Protection Act of 1999 could protect these species, but it has never been fully implemented and enforced, with no protection for ocean pollution, fracking, oil drilling, oil spills, military testing, corporate aquaculture, and all human impacts other than sustainable fishing and gathering.

A state panel to determine so-called “marine protected areas” in Southern California between 2009 and 2012 was led by a oil industry lobbyist. Catherine Reheis-Boyd, the President of the Western States Petroleum Association (WSPA), chaired the Marine Life Protection Act (MLPA) Initiative Blue Ribbon Task Force as her industry fracked the waters with little or no government oversight. State officials promised to review the “marine protected areas” every five years but changed to 10-year reviews.

Conservatives angry about protecting the ocean are also going to be furious about Facebook’s announcement that it will ban users from selling guns on both its main site and its photo-sharing site Instagram. Licensed gun dealers can still post with the requirement that they do not conduct purchases on the site, but it applies to the private gun sales not requiring background checks in most states.

Facebook rules cover gun parts and ammunition as well as guns. Federal laws don’t cover guns if they are 80 percent or less complete, like an “unfinished lower receiver.” In this way, people can buy “incomplete” guns without serial numbers or background checks, and people can buy these parts and put them together for an untraceable gun. Some websites even sell the machines to complete receivers with the promise that buyers can build unserialized firearms legally in your own home. The federal government can’t block this, but Facebook can decide what it doesn’t want to sell—such as marijuana, pharmaceuticals, or other potentially illegal objects.

With one debate before next Tuesday’s New Hampshire primary, media will be consumed by presidential candidates. At least that state uses real ballots. Both parties debate next week—Dems on February 11 and GOP on February 13—before decisions on a Democratic candidate in Nevada and the GOP candidate in South Carolina on February 20. The two parties can’t even vote on the same day in those states: Democrats wait another week to vote in South Carolina and the GOP won’t caucus in Nevada until February 23. Four weeks from today is Super Tuesday with a solid dozen states. Maybe that will produce a decision—or not.

Martin O’Malley on the Democratic side and Mike Huckabee on the GOP side have both dropped out. Huckabee, who won the Iowa caucus in 2008, said, “The voters are sick of me.” In the 2012 Iowa caucus, the first winner was Mitt Romney. After Iowa GOP decided they made a mistake, they selected Rick Santorum and then went on to declare Ron Paul the real winner. The next dropout may be John Kasich who said that he’ll be gone if he doesn’t do well in New Hampshire. No one knows what Donald Trump will decide.

Ted Cruz’s campaign has outdone Trump’s outrageousness by spreading the news during the Iowa caucus that Ben Carson was planning to drop out of the race. Later Cruz apologized, calling it a “mistake” but said that it was “fair game” to update his “grassroot leaders” that “Dr. Carson was not carrying on to New Hampshire and South Carolina.” Twenty minutes after the caucuses began in Iowa, Rep. Steve King (R-IA), the Cruz campaign’s national co-chair, tweeted, “Carson looks like he is out. Iowans need to know before they vote. Most will go to Cruz, I hope.”

Cruz had already gained the ire of Iowa’s secretary of state after Cruz sent mailers that misrepresented state election law. A warning of a “voting violation” in capital letters at the top of the page was followed by that statement that people were receiving notice “because of low expected voter turnout in your area.” The flier continued, “Your individual voting history as well as your neighbors’ are public record. Their scores are published below, and many of them will see your score as well. CAUCUS ON MONDAY TO IMPROVE YOUR SCORE and please encourage your neighbors to caucus as well. A follow-up notice may be issued following Monday’s caucuses.” After that were a list of names, letter grades, and percentage scores.

The highlight of my week will be the Democratic debate on MSNBC Thursday, February 4–if it happens. Moderator Rachel Maddow will moderate, and Fox can watch to see how debates should be run. It’s still up in the air because Bernie Sanders first said he wanted the debate, but now he says he won’t debate unless Hillary Clinton agrees to his conditions on future debates.

And the joke that the U.S. calls democracy continues.

 

Black History Month: No Time To Be Silent

Today is the first day of Black History Month, and Denise Oliver-Velez writes about its importance. Currently an adjunct Professor of Anthropology and Women’s Studies at SUNY New Paltz, Oliver-Velez has been active in the Civil Rights movement and was co-founder and program director of Pacifica’s first minority-controlled radio station, WPFW-FM, in Washington DC. She begins her article:

“I will never forget my fifth grade schoolteacher in Brooklyn, New York, giving me an “F” on a report because I stated that Egypt was in Africa. Thankfully my parents went up to the school and visited the principal, and my grade was changed. However, my trust in teachers (other than my parents) was eroded. I’m grateful that they taught me black history at home, because it was not part of the grade school curricula.”

 

The precursor to Black History Month, “Negro History Week,” began in 1926. Historian Carter G. Woodson and the Association for the Study of Negro Life and History selected that time because of its connection to the birthdays of Abraham Lincoln (February 12) and Frederick Douglass (February 14). Woodson wrote: announced the second week of February to be “Negro History Week.”

“Racism is not good for the majority, or those of us who fall into a category dubbed ‘minority.’ Neither is ignorance. And we have yet to eradicate the ignorance surrounding black history.”

Black students at Kent State were the impetus for changes in how black history was treated during the past four decades. Proposed by leaders of the Black United Students at Kent State University in February 1969, the Black History Month was officially recognized in 1976. GOP President Gerald Ford urged people in the United States to “seize the opportunity to honor the too-often neglected accomplishments of black Americans in every area of endeavor throughout our history.”

Debates about the appropriateness of Black History Month include the complaints that white people in the U.S. aren’t allowed to name anything the “white ….” Racial and ethnic minorities can subject whites to a reverse bigotry every day is another complaint, most recently in response to the concern that the Oscar actor/actress nominations are all white. Others protest the NAACP and historically black colleges as racism by those who are not white.

The academy awards presentations, occurring during Black History Month, has no black nominees for actors, actresses, or best pictures featuring black actors. Actress—known for the movie Clueless—and Fox network commentator, Stacey Dash, responded to concern about the whiteness of the Oscars by saying that celebrating Black History Month and allowing cable entertainment network BET is counterproductive and racist. Dash said:

 

“If we don’t want segregation, then we need to get rid of channels like BET and the BET Awards and the [NAACP] Image Awards, where you are only awarded if you are black. If it were the other way around we would be up in arms. It’s a double standard. Just like there shouldn’t be a Black History Month. You know, we’re Americans, period. That’s it.”

After Dash said that BET should not exist, the network jokingly asked if it could get its check back for Dash’s appearance on its channel.

Actually, the BET Awards, hosted by Black Entertainment Television (BET) since 2000, recognize all talent in artists, actors, technicians, and entertainers—white, black, or other. BET’s programming also includes white, black, Latino and Asian actors. The NAACP Image Awards is for not only “people of color in the arts” but also “those individuals or groups who promote social justice through their creative endeavors.” Some award winners are Angelina Jolie, Steven Spielberg, George Lucas, Carlos Santana, Bono, Al Gore and Sam Smith. Dash has presented at the NAACP Image Awards.

Questioned about Dash’s statements on The View, Whoopi Goldberg said:

“[Black History Month is] not taught as it pertains to America. American history holds all of us—and [Dash] is right in that—but we’re not all treated like Americans. And one of the reasons there is a BET is because networks wouldn’t take a lot of the shows that have an all-black cast.”

In the same way, the Academy has moved movies away from diversity. Studios, producers, and directors know the importance of whiteness for Oscar winners. A 2012 Los Angeles Times survey of the 6,028 Academy Award voters showed that they were 94 percent white, 76 percent male, and an average of 63 years old.

Oliver-Velez writes:

“White Americans are the group with the longest and richest history of race-related violence, racial exclusion enforced by violence and intimidation and — even as of today — allowing all manner of major and essential social structures and services to remain substantially separate and unequal. White Americans have benefited from this system and still do today. Some more than others, to be sure, but, that’s the truth. And, maintaining these distances and benefits typically rank among the goals of those who seek to create exclusively white institutions, organizations and places today. To put this really simply, the NAACP and the KKK are not the same. Black History Month and a white nationalist celebrations are quite different. They don’t do the same things. They don’t have the same goals, and they have not shaped America in the same ways.”

After years of calling for a “White History Month,” Portland Community College is calling for April to be “Whiteness History Month” as a way to teach about race and racism.  Conservatives rage that it’s “plainly designed to convince white students to despise themselves and their culture.”

At the same time, Texas schools are whitewashing the social studies curriculum. The state’s new textbooks state that Moses “played a bigger role in inspiring the Constitution than slavery did in starting the Civil War.” One and a half centuries after the end of the Civil War, at least 5 million children are taught that the biggest war within the United States was caused by “sectionalism, states’ rights”—and, oh yes, in an afterthought, slavery. It was, according to a Texas board of education member, a “side issue.” Millions of children throughout the rest of the nation are also taught the same thing because they buy the same textbooks that Texas demands.

Black History Month is important because it honors the past of an ethnic group brought to America in political bondage through sharing. It is a time when young people can hear the contributions and struggles of earlier generations when they were young. It is also a time to correct misrepresentations, misunderstandings, and fallacies about black culture. Historic leaders of the black community deserve honor for their sacrifices and suffering so that young people will grow up as stewards of privileges that their ancestors lacked. While media concentrate on rates or poverty, crime, and school dropouts, people need to also hear about the best of black accomplishments through the arts, business, politics, science, and other parts of American life.

Blacks have made a huge positive influence on the development of the United States; Black History Month is a time when all people can become more aware of these stories. White conservatives who think that racism doesn’t exist when blacks are silent become resentful when blacks speak. In a democracy, no one should have to be silent.