Celebrity Vetting and ‘Helping the President’ to Defeat Coronavirus Despair
Noah Weiland and Sharon LaFraniere October 29, 2020
WASHINGTON — A $265 million public campaign to “defeat despair” around the coronavirus was planned partly around the politically tinged theme that “helping the president will help the country,” according to documents released Thursday by House investigators.
Michael R. Caputo, the assistant secretary for public affairs at the Department of Health and Human Services, and others involved envisioned a star-studded campaign to lift American spirits, but the lawmakers said they sought to exclude celebrities who had supported gay rights or same-sex marriage or who had publicly disparaged President Donald Trump. Actor Zach Galifianakis, for instance, was apparently passed over because he had declined to have Trump on his talk show “Between Two Ferns.” (Galifianakis did have President Barack Obama on the irreverent show.)
Ultimately, the campaign collapsed in late September amid recriminations and investigation.
Democrats on the House Oversight and Reform Committee and the select subcommittee on the coronavirus crisis released the records, declaring that “these documents include extremely troubling revelations.” They accused Alex Azar, the secretary of health and human services, of “a cover-up to conceal the Trump administration’s misuse of hundreds of millions of taxpayer dollars for partisan political purposes ahead of the upcoming election.”
Caputo, a fierce ally of Trump, had drawn attention to the public relations campaign last month during an extended rant on Facebook, claiming that the president had personally put him in charge of the project and that career government scientists were engaging in “sedition” to undermine the president. He is now on medical leave battling cancer.
That public relations effort is now in shambles. The celebrities picked to promote the campaign, including actor Dennis Quaid, have pulled out. Azar ordered a review of whether the initiative served “important public health purposes.” Top health department officials have privately tried to distance themselves from the project.
“The plan has always been to only use materials reviewed by a department-wide team of experts,” a department spokeswoman said in a statement.
The new documents indicate that Quaid stood out mainly because he got through the vetting. Documents show that contractors involved in the public relations effort researched the political views and backgrounds of at least 274 celebrities in what appeared to be an effort to root out anti-Trump sentiment that could inflect the initiative.
Galifianakis “refused to host President Trump on talk show,” one notation reads. Bryan Cranston, the antihero of the television program “Breaking Bad,” “called out Trump’s attacks on journalists during his Tony Awards speech in 2019.” Actor Jack Black was “known to be a classic Hollywood liberal.”
Singer Christina Aguilera “is an Obama-supporting Democrat and a gay-rights supporting liberal.” Adam Levine of the band Maroon 5 “fights for gay rights.” Justin Timberlake “supports gay marriage.”
Dakota Johnson, the actress, once “wore a pin to support Planned Parenthood.” And Sarah Jessica Parker, the actress, was tagged as an “LGBTQ supporter including marriage equality.”
In the end, only 10 of hundreds of potential celebrities considered for the campaign were approved, the documents suggest.
The new documents deal with a $15 million contract awarded to Atlas Research and indicate that government officials successfully urged the company to hire three little-known subcontractors with no obvious expertise to join the bigger campaign.
When Mark H. Chichester, the president of Atlas, tried to research those subcontractors, he discovered “small shops with little on them in the public domain,” according to documents the committee released.
One was a one-person operation run by a state-level Republican pollster, Chichester wrote. Another appeared to be “a small — perhaps one-man” operation.
A third was a “platform owned by Den Tolmor, a Russian-born business associate of Caputo’s,” Chichester said.
In a September meeting with one subcontractor, Caputo suggested “taglines” for the effort, some of which had a distinctly partisan tone, such as “helping the president will help the country,” according to notes released by the lawmakers. Caputo said that theme “would appeal to his base in terms of wearing a mask, vaccine,” the notes state.
Caputo appeared to be trying to shore up support from Trump’s followers who might be skeptical of wearing masks or getting a vaccine by linking those activities with supporting the president. The main contractor, Atlas Research, could not be immediately reached for comment. A person familiar with Caputo’s version of events, who spoke on the condition of anonymity, said that Caputo was never in business with Tolmor, the subcontractor, and did not try to improperly intervene in the contracting process.
But in a 2018 press release and in at least two media reports that year, Caputo was described as the chief marketing officer for a film and video company co-founded by Tolmor. And the documents released by congressional investigators suggest that contract officials with the Food and Drug Administration, a part of the Department of Health and Human Services, were so concerned about Caputo&aposs involvement in the process that one removed him from an email chain and warned Atlas executives that only contract officers could advise the company about how to fulfill its government obligations.
The public relations campaign became politically toxic even to those who signed up for it. Quaid recently backed out after recording an interview with Dr. Anthony Fauci, the government’s top infectious disease expert, saying in an Instagram post that his role was not an endorsement of Trump, and that he was “feeling some outrage and a lot of disappointment” after public reports on the campaign. Singer CeCe Winans also dropped out.
Democratic lawmakers have questioned the campaign’s funding after Dr. Robert Redfield, the director of the Centers for Disease Control and Prevention, testified in September that $300 million had been steered from his agency’s budget to Caputo’s office, and that the CDC was given no role in the campaign, which aimed to “defeat despair.”
The federal government awarded the campaign’s biggest contract to the Fors Marsh Group, a research company in Northern Virginia. A department official said the award, for $250 million, was competitively bid and Caputo had “nothing to do” with it.
On Sunday, The Wall Street Journal reported that as part of that same campaign, Caputo had offered early access to a coronavirus vaccine to a group of performers who play Santa Claus, Mrs. Claus and elves. In recordings obtained by The Journal, Caputo said that the campaign would feature regional events with “beautiful educational films,” and that the Santas would participate in dozens of cities. Health department officials said the Santa plan was discarded. Caputo also did not have the power to grant special access to a vaccine.
In their letter dated Wednesday, the Democrats scolded Azar for not turning over contract documents, including those related to Atlas. They wrote that it was “completely inappropriate to frame a taxpayer-funded ad campaign around ‘helping’ President Trump in the weeks and days before the election.”
The letter was signed by three committee leaders: Reps. Carolyn B. Maloney of New York, James E. Clyburn of South Carolina and Raja Krishnamoorthi of Illinois.
Caputo was especially aggressive in putting the president’s sanguine spin on the pandemic. He and a onetime adviser he hired at the department, Dr. Paul Alexander, repeatedly tried to interfere with weekly bulletins published by the CDC about the latest research on the pandemic, lashing out at career officials for perceived opposition to Trump. Caputo asked CDC officials for the names of the authors of the reports in an attempt to locate potential anti-Trump political bias in their biographies, according to two former senior health officials.
How GDP Growth Under Trump Compares To Clinton, Obama And Other Presidents
Wayne Duggan October 29, 2020
With the presidential election less than a week away, Americans are weighing the two presidential candidates and choosing which is best for the country over the next four years —if they haven’t already voted.
One way they can do that is by looking back on the first term of President Donald Trump and comparing the impact his policies have had on the country to previous administrations.
Trump’s GDP Numbers: Trump has campaigned as the best choice for the U.S. economy. Trump often uses the stock market as a scorecard for his policies, but the best representation of the real U.S. economy is gross domestic product.
Here’s a look at annual U.S. GDP growth during Trump’s presidency. The 2020 estimate comes from the Federal Reserve:
How Trump Compares: Overall, U.S. GDP growth has averaged about 0.95% during Trump’s first term in office. Here’s a look at how that GDP growth stacks up to his predecessor, President Barack Obama:
In his eight years in office, U.S. GDP growth averaged 1.62% under Obama, about 70% higher than Trump’s growth rate.
Here’s a look at average GDP growth rates under the last six U.S. presidents:
Jimmy Carter (D): 3.25%
Ronald Reagan (R): 3.48%
George H.W. Bush (R): 2.25%
Bill Clinton (D): 3.88%
George W. Bush (R): 2.2%
Barack Obama (D): 1.62%
Donald Trump (R): 0.95%
In his first four years in office, Trump has had by far the lowest average U.S. GDP growth rate of any of the last seven U.S. presidents.
Overall, U.S. GDP growth was highest under Clinton and Reagan in this group. GDP growth was lowest under Trump and Obama.
‘Binded by blood,’ split over election: Asian American family embodies generational shift in politics
Rima Abdelkader and Shako Liu and Soumya Shankar – October 27, 2020
Four years ago, Louie Tan Vital received an invitation from her 81-year old grandmother, an immigrant, to join a prayer rally for whom she hoped would be the next president of the United States, Donald Trump.
To be respectful, Vital attended, but she didn’t actively participate. “I was incredibly uncomfortable. And I remember talking to my grandmother later,” Vital told NBC News over Zoom from her home in Washington, D.C.
Vital, 25, identifies as a Democrat and considers herself a progressive activist, while her grandmother Estrella Pada Taong identifies as conservative and a Republican. She remembered asking her grandma for her views on Trump then and learning her grandma felt he’s religious and “a good Christian.” Vital said she chose not to respond further so as not to get too upset.
“My opinion is that he is not a religious man, nor would I say he conveys any traditionally Christian values, respecting women and family and all of that,” Vital said.
Like many immigrant groups, Asian Americans and Pacific Islanders experience generational splits among voters. Vital, who was born in the United States, and her grandmother Taong, who was born in the Philippines, reflect these differences — some of which can be explained by their age and where they grew up.
Sixty-six percent of Asian Americans, 18 to 34 years old, would vote for Democratic presidential nominee Joe Biden, compared to 20 percent of those more than 50 years old, according to the most recent Asian American Voter Survey.
“What we find is that, where Asian Americans live doesn’t make as much of a difference in terms of which party they identify with or who they’re going to vote for, as much as age and nativity,” according to Karthick Ramakrishnan, director of the Asian American Voter Survey and founder of AAPI Data.
Ramakrishnan said that younger voters identify more with the Democratic Party and as progressive on issues such as health care, the citizenship process, protecting the environment, gun control, abortion and in their support for the Black Lives Matter movement and having a heightened sensitivity to matters like racial discrimination whereas older voters tend to not be as progressive.
Ramakrishnan explains that while party affiliation and identity politics vary among different Asian American groups when comparing younger and older voters, younger voters still tend to be more progressive.
Organizing for ‘the exact opposite beliefs’
As the 2020 U.S. presidential election approaches, conversations surrounding political beliefs and dissent with family could get difficult to navigate. Vital’s intergenerational Filipino American voting family found it’s more about understanding one another’s upbringings and life experiences than to center on disagreement.
“It’s interesting that I’m over here on this side of the country doing community organizing. I’m fighting in politics and fighting for progressive policies. And on the complete other end of the country, my grandma is also out here community organizing for the exact opposite beliefs,” Vital said.
Vital said when she visits her family in Hawaii, the time spent is not about discussing politics but “cooking together, just hanging out, watching movies, just everyday family stuff.”
“I’m not authentically myself in the presence because I know that my political views might come between us and I’m actively choosing sometimes to not address that,” she explained.
Alex Ly, a registered associate marriage and family therapist in Fremont, California, says a family member choosing to disengage from a political disagreement happens and suggests ways families could communicate their views.
“When that person feels understood, they are more open to a different perspective,” Ly said.
Ly, who sees around 10 to 15 clients per week including Asian Americans, suggests bringing “a level of curiosity” to the conversation, considering intention and outcome, and understanding not only the person’s position but also the story behind it.
Explaining splits in subgroups such as Indian Americans and Vietnamese Americans
AAPI Data shows that Vietnamese Americans are the only Asian American subgroup that identify more as Republican at 38 percent, compared to Democratic at 27 percent and 29 percent identify as independent. The explanation as to why includes nuances such as refugee trauma and its past colonial history. One of the main factors is how Vietnamese communities were affected in the aftermath of the Vietnam War, according to Nick Nguyen, a research lead at VietFactCheck.org, a project formed by PIVOT, a progressive Vietnamese American nonprofit social justice organization.
Many Vietnamese Americans formed political opinions following the Vietnam War, when the lives of the Vietnamese people were upended and once-stable families became refugees, Nguyen said from Palo Alto, California. He said that a belief had emerged that the Republican Party held an anti-communist agenda rather than a peacenik view which reflected views from these communities at the time and carried over since then. To add, that political affiliation, he said, could also be explained by more Vietnamese people feeling much more welcomed by that party in being accepted into the United States and because of other reasons like religiosity.
“We didn’t go through the trauma they went through,” Nguyen, 44, said, adding, “I’m very empathetic towards elders and why they feel the way they feel.”
Nguyen, who is a second-generation Vietnamese American, credits his family who came to the United States as refugees and became naturalized citizens with providing him with security and enfranchisement through their sacrifices.
“Because we didn’t grow up under all this sort of stress that can really affect your outlook on the world and on life, we have the luxury of really looking outward at problems that we think will snowball into bigger problems and we want to solve them,” he said.
Nguyen said he grew up as a Republican due to his family’s influence and past history but later identified as Democratic at age 25 when he developed his own political views from his personal and professional experiences.
Another reason could be Trump’s tough talk on China, a communist country that once ruled over Vietnam. For elderly Vietnamese Americans, that appears to be a favorable factor in their support for the incumbent, because it harkens back to former president Ronald Reagan’s anti-communist approach, according to Dr. Anh – Thu Bui, who is directing election strategy at PIVOT, a nonprofit working to increase voter participation among Vietnamese Americans.
Within the Asian American voting bloc, naturalized immigrants are the biggest sources of growth for eligible voters. Of the group, Indian Americans are among the fastest growing and have doubled in size in the recent past.
About 89 percent of Indian Americans who refer to themselves as Democratic are planning to vote for Biden compared to 80 percent of those who identify as Republican who are planning to vote for Trump, according to the Carnegie Endowment For Peace citing the 2020 Indian American Attitudes Survey. Those who were born in the United States tend to identify more as a Democrat, representing 64 percent, compared to naturalized U.S. citizens at 48 percent, according to the same report.
“I’m very connected to India through my family but I have to focus on what the U.S. government does vis a vis the economy,” said Khyati Joshi, a professor of education at Fairleigh Dickinson University in New Jersey. “Most second-gen Indians like me, however, are looking at health care, economy and social justice issues here.”
Some experts explain one contributing factor in this split could be Trump’s alliance with India’s Prime Minister Narendra Modi, given the large portion of the U.S. community born in India. While a total of 14 percent of the U.S. population is foreign born, among Indian Americans, that number is 71 percent.
In 2019, Modi and Trump hosted a rally to address Indian American supporters in Houston. The “Howdy Modi” event drew 50,000 people and the two leaders appeared together on stage. In February, they held a joint rally in India, during which they praised one another in front of over 110,000 people.
Still, other issues, like Trump’s order to curb H-1B visas that have been temporarily blocked by a district judge until the end of the year have affected Indians working in the United States who have received half of all H-1B visas, widely given to tech workers with specialty skills since 2001.
Other experts explain any differences within the community as a matter of perspective. Pawan Dhingra, a sociologist and professor of American studies at Amherst College in Massachusetts, said immigrants tend to think that “we need to pay our dues and so, tend to accept certain kinds of inequalities.” Their children, however, he noted, are less likely to conform. “The second gen feels that we, as U.S. citizens, are raised here and deserve equal rights.”
Choosing to understand one another
Taong, who works as a mortgage loan officer in Honolulu, said she became politically active with other Filipino Americans when Trump ran for president in the previous election. She recognizes that her political views differ from her granddaughter’s and chooses to understand why.
“What I only do is I have to understand, I have to understand her present situation, her present place, the culture she is now. I have to understand her. I have to understand her peers, the school she goes, the training she gets from the school,” Taong said over Zoom from Honolulu.
Unlike her granddaughter, Taong said she grew up with strict parents in the Philippines whom she said she could not disagree with.
“We cannot go anything against what our parents would say. If I were on that, like what Louie had been doing, I’m sure my parents would say, as what I said, that do not join the activist group. As a child, I have to follow,” Taong said.
Her granddaughter said she has participated in marching for the Black Lives Matter movement and has been vocal on being a progressive activist since her undergraduate and graduate educations at the University of Washington.
Third Andresen, a part-time lecturer at the University of Washington who teaches courses on ethnic studies and critical race theory, remembered teaching Vital as a student in his study abroad course in the Philippines and said she excelled in her studies.
Andresen also remembered Vital seeking his advice as a student on how to handle disagreements with family.
“Be prepared to be uncomfortable. If you’re not ready, you might want to keep practicing until you’re ready,” Andresen said he tells his students.
Taong recalls her granddaughter’s passion for being an activist as a student and not being in acceptance of it at the time, but found a way to understand and respect it.
“I respect her opinion, because I believe that she’s a little bit mature enough to think what is good for herself. And the only thing that I can help her is to pray for her, pray for her safety and pray that her plans are well accepted by the world,” she explained.
Taong shared that she based her guidance from having lived in the Philippines and seeing a different view of activism that sometimes left people hurt and unsafe and being fearful of that for Vital.
Even among the differences, Taong pursued higher education like her granddaughter. She said she obtained a doctoral degree in administration and supervision in the Philippines. She said there are a few different factors that shape viewpoints.
“It’s through culture, family background and training and educational background and the influence of the environment,” she explained. “What we got from our parents, we transcended, we transfer it to our next generation, next siblings.”
It’s a sentiment echoed by her daughter Lucky Tan Tasato, 49, who said she raised Vital to be free to “decide and choose.”
“I have my own set of beliefs. I am driven by my own values and morality basically. And when it comes to Louie, I do encourage her to stand for what she thinks is right,” Tasato said over Zoom from Honolulu.
Vital’s mother remembered when her daughter sported a mask that read, “We decide” on the day she voted. “And I told her, you’re right, you are part of the we,” she said.
“We can be on the left, on the right and the middle. But in the end, we’re still binded by blood,” Tasato said. “So, we still have to show respect to one another, and respect the fact that we’re free to express ourselves quite vocally or maybe not even vocally of our political affiliation.”
Household incomes grew more slowly in a majority of states under Trump – even before COVID-19
Jessica Goodheart and Danny Feingold, Capital & Main – October 26, 2020
Even before the U.S. economy was slammed by a pandemic, the typical American household’s income grew at a slower pace in more than half of the states under Donald Trump than in the years leading up to his presidency, according to a new Capital & Main analysis of U.S. Census data.
Those states include several key battlegrounds, undercutting one of Trump’s central campaign themes: that before COVID-19 his actions led to an economy he has described as “the best it has ever been.”
Pennsylvania saw its typical household’s income growth slow from 6.2% in Obama’s last three years to 4.7% in Trump’s first three years, while median household income growth in Wisconsin declined from 7.1% to 6%.
In New Hampshire typical household income growth slowed from 7.2% between 2013 and 2016 to 3.1% from 2016 to 2019, while in Iowa it slowed from 4.5% to 3%.
Nationally, median family income growth in Trump’s first three years was almost identical to the rate of growth in the three years prior to his presidency, according to one of the two main Census surveys. A second Census survey shows that median household income growth actually slowed in Trump’s first three years to 2.1% annually compared with 2.6% annually during Obama’s last three years.
Defenders of the president point to other indicators such as family income, which does not include households with single people and unrelated people living together. Family income, they point out, grew faster in Trump’s first three years than in the years before he took office.
Measured by median household income, however, 26 states saw slower growth under Trump even before the pandemic – including in half of the 2020 battleground states identified by The Cook Political Report, a nonpartisan newsletter that analyzes campaigns and elections. They include Georgia, North Carolina and Ohio, along with Iowa, New Hampshire, Pennsylvania and Wisconsin. In addition, two states with battleground districts, Maine and Nebraska, saw median household income growth slow in real terms.
In the hotly contested 2016 race between Trump and Hillary Clinton, sixteen of the 26 states where household income growth slowed in the ensuing years supported Trump. Seven of those 16 are considered battlegrounds in the current presidential race.
The slowing income growth in most states during the Trump years came despite the fact that the president inherited a strong economy, unlike his predecessor, who took office during the worst downturn since the Great Depression.
“Obama was carrying us out of a very deep and long recession, and Trump inherited that. If anything, it’s notable that real income didn’t rise any faster under Trump than it did under Obama, despite the stimulus that his tax cuts were supposed to provide,” said Nari Rhee, director of the retirement security program at the University of California, Berkeley’s Center for Labor Research and Education.
The analysis of the latest American Community Survey data by Capital & Main, a nonprofit news organization, was conducted in conjunction with the UC Berkeley Labor Center. It compares two periods of economic expansion: Obama’s last three years in office (2014 to 2016) to the first three years of the Trump presidency (2017 to 2019). In each case, the income reported in the prior years (2013 and 2016) allows growth to be measured over the subsequent years.
Trump has repeatedly promised that he can return the economy to its pre-pandemic heights. But the Capital & Main analysis shows that, even before the pandemic, the rate of income growth for the typical household was geographically uneven.
Stephen Moore, Trump’s former economic adviser and a senior fellow at the Heritage Foundation, has recently argued that Trump rescued an economy in serious financial trouble.
“Family incomes surged to record-high levels in 2017, 2018 and 2019 as deregulation and tax cuts fueled a powerful engine,” Moore wrote in an editorial earlier this month.
Yet, for the first half of the Trump administration, during 2017 and 2018, real income growth for the typical household grew at less than half the rate it did in the two years before he took office, according to a previous analysis by Capital & Main and the Economic Policy Institute.
All but two states experienced a trend of slower growth in median household income for the first two years of Trump’s presidency compared to the prior two years. The poorest households also saw slower income growth in Trump’s first two years compared with Obama’s last two years.
It was only in 2019 that the picture brightened for many Americans. The low unemployment rate and prolonged expansion likely led to rising incomes as more people found jobs in a tight labor market, says David Cooper of the Economic Policy Institute.
However, Cooper gives little credit to Trump’s economic policy for the growth in household incomes in 2019, saying he “squandered every opportunity to lift up ordinary Americans.”
“The data are a good reminder that the Trump administration inherited one of the best economies in (a) generation. But they did nothing in their first three years that meaningfully altered the overall trajectory of the economy during that time,” he said.
“Despite all the rhetoric, companies continue to offshore jobs, the trade deficit with China continues to grow. (Trump’s) signature economic policy was a massive tax cut that overwhelmingly benefited the rich.”
Cooper does not dispute that family incomes did grow at a faster pace under Trump than under Obama, but he credits the fact that the country was eight years into an economic expansion, not Trump’s tax cuts or deregulatory agenda. The austerity measures pushed by a Republican-controlled Congress and state legislatures prevented family incomes from rising more under Obama, according to Cooper.
Of course, what’s foremost on people’s minds right now is a pandemic and a recession that has erased economic progress made under Obama and Trump alike.
The employment gains made since the Great Recession have been wiped out by COVID-19-related job losses. Its impact on the typical household in battleground states and elsewhere will be more fully understood when the U.S. Census Bureau releases its income data next September, long after the election.
Capital & Main is a nonprofit publication that reports on economic, environmental and social issues.
Trump Says He’s Kept ‘Every Single One’ Of His Promises. CNN Shows Why That’s Another Lie.
Lee Moran ·Reporter, HuffPost
President Donald Trump’s boast about keeping “every single one” of the promises he made on the 2016 campaign trail was swiftly debunked on Tuesday’s broadcast of CNN’s “Outfront.”
CNN correspondent Tom Foreman took less than three minutes to show why the president’s bombastic claim was yet another of Trump’s lies. Trump has told more than 22,000 untruths during his time in office, according to The Washington Post.
Foreman pointed out six examples of Trump reneging on his word ― from his vow that Mexico would pay for a “great, great wall” on the southern border to his promise to repeal the Affordable Care Act and replace it with something better.
Trump just signed an executive order letting him purge thousands of federal workers for disloyalty
Even if he loses, the action could sabotage a Biden administration indefinitely.
By Bess Levin October 26, 2020
Historically, when Donald Trump has signed executive orders, like to issue a travel ban against people from majority-Muslim nations or to sabotage the Affordable Care Act, he’s done so with lots of fanfare, tweeting about how they’ve made America great again, inviting camera crews to watch him scribble his Sharpie across the page, and sending his lieutenants out to brag about them on TV. But last week, the White House was relatively, strangely quiet as the president signed the esoteric-sounding “Executive Order on Creating Schedule F In the Excepted Service.” And that was probably by design; because the action not only gives Trump the power to purge thousands of federal workers—the kind whose job protections have allowed them to deal in facts and stand up to presidential intimidation—and replace them with politically appointed hacks who would spend the next four years doing Trump’s bidding, but it would cripple a Biden administration for months, at a time when it will need to act fast on, among other things, COVID-19.
Of course, that’s not how the administration has summarized the EO, saying, instead that it’s all about getting rid of “poor performers.” But competence has never been of much interest to Trump, who evaluates who is the best person for any given job based on how hard they kiss his ass and pledge to do his bidding no matter what. Unfortunately, until now the president has been bedeviled by rules saying he can’t just fire civil servants for writing reports that say mask-wearing helps stop the spread of COVID-19, or coal mining is hastening climate change, or refusing to say that a hurricane was headed for Alabama when it definitely wasn’t. Thus, this new plan.
Here’s how the Independent describes it:
The order…would strip civil service protections from a broad swath of career civil servants if it is decided that they are in “confidential, policy-determining, policy-making, or policy-advocating positions”—a description previously reserved for the political appointees who come and go with each change in administration. It does that by creating a new category for such positions that do not turn over from administration to administration and reclassifying them as part of that category.
The range of workers who could be stripped of protections and placed in this new category is vast, experts say, and could include most of the non-partisan experts—scientists, doctors, lawyers, economists—whose work to advise and inform policymakers is supposed to be done in a way that is fact-driven and devoid of politics. Trump has repeatedly clashed with such career workers on a variety of settings, ranging from his desire to present the COVID-19 pandemic as largely over, to his attempts to enable his allies to escape punishment for federal crimes, to his quixotic insistence that National Weather Service scientists back up his erroneous claim that the state of Alabama was threatened by a hurricane which was not heading in its direction.
In creating the new category, called “Schedule F,” Trump would basically take employees whose jobs are nonpolitical and are protected from, for instance, a president who doesn‘t believe science is real, and make them “at will,” while at the same time, giving political appointees the very job protection he’s stripping from civil servants. That would obviously be extremely bad under a scenario in which Trump is elected to a second term—as the Washington Post puts it, “think of the Federal Aviation Administration employee evaluating whether an airliner is safe to fly” or “the Food and Drug Administration employee evaluating the efficacy of a vaccine”—and there isn‘t a single person left in the federal government who is qualified or non-corrupt. But it would also mean, in the likely event Trump loses, he could go scorched earth and screw over Joe Biden when time is of the essence:
Creating the new category…could allow a lame-duck President Trump to cripple his successor’s administration by firing any career federal employees who’ve been included on the list. It also could allow Trump administration officials to skirt prohibitions against “burrowing in”—the heavily restricted practice of converting political appointees (known as “Schedule C” employees) into career civil servants—by hiring them under the new category for positions which would not end with Trump’s term. Another provision orders agencies to take steps to prohibit removing “Schedule F” appointees from their jobs on the grounds of “political affiliation,” which could potentially prevent a future administration from firing unqualified appointees because of their association with President Trump.
“It’s a two-pronged attack—a Hail Mary pass to enable them to do some burrowing in if they lose the election,” Walter Shaub, who ran the U.S. Office of Government Ethics during Barack Obama’s second term and in first six months of the Trump administration, told reporter Andrew Feinberg. “But if they win the election, then anything goes for the destruction of the civil service… [This could] take us back to the spoils system and all the corruption that comes with it.” Or as New Jersey chief innovation officer Beth Noveck put it, “It’s the twin danger of both firing [someone like Dr. Anthony] Fauci and replacing him with Eric Trump’s wedding planner permanently.” Or, say, a guy who thinks the government’s strategy to combat the pandemic should be to let 2 million Americans get it and die.
In a sign of just how catastrophic the action could ultimately prove, on Sunday, Ronald Sanders, the Trump-appointed head of an advisory council on the civil service, quit in protest, writing in his resignation letter that the order “is nothing more than a smoke screen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process.“ He added: “I simply cannot be part of an Administration that seeks…to replace apolitical expertise with political obeisance. Career Federal employees are legally and duty-bound to be nonpartisan; they take an oath to preserve and protect our Constitution and the rule of law…not to be loyal to a particular President or Administration.”
Or as Richard Loeb, a senior policy counsel at the American Federation of Government Employees, put it to the New York Times: “This is a declaration of war on the career Civil Service. It is an attempt to politicize the process and to hire cronies and fire enemies. It is really a 19th-century concept.”
Surprise: a Minnesota outbreak has been linked to Trump campaign events
Who could have predicted this, other than everyone? Per CNN:
Minnesota is reporting three COVID-19 outbreaks related to Trump campaign events held in September. At least 21 cases have been traced to outbreaks occurring at rally events in Bemidji on Sept. 18, a speech held by Vice President Mike Pence on Sept. 24 in Minneapolis, and another rally held by the President on Sept. 30 in Duluth, the Minnesota Department of Health said in an email to CNN. President Trump’s Bemidji rally took place in an airport hanger. According to a CNN producer who attended the event, at least 2,000 people were in attendance. Based on contact tracing by the state department of health, at least 16 cases, including two hospitalizations, were identified among attendees.
In the month proceeding the rally, the seven-day average of new cases in Beltrami County, where Bemidji is located, was 2.85 new cases a day, according to Johns Hopkins University. On the day of the rally it had climbed up slightly to three new cases a day. But four weeks after, the average rate of new cases in the county had increased more than fourfold, reaching an average of 14.57 new cases a day.
Trump’s rallies, which have only increased in frequency since he himself contracted COVID-19, have been largely mask-free affairs where social distancing is nonexistent, which probably has something to do with the fact that the president has alternatively told supporters that the virus is a hoax or that it’s real but we’re “rounding the corner” (as cases surge).
Trump’s new coronavirus spin: doctors are inflating their case numbers to make extra cash
Donald Trump attacked U.S. doctors in a speech Saturday night, accusing them of fabricating the coronavirus death toll for money. He gave the example of someone with a terminal illness getting COVID-19, whose death is then written off as due to the virus.
“We report them, and doctors get more money, and hospitals get more money,” he said. “Some countries, they report differently. If somebody is sick with a heart problem, and they die of COVID-19, they say they die of a heart problem…. This country,” he continued, “and their reporting systems are really not doing it right,” by naming COVID-19 as the cause of death, and not the terminal illness. Trump added, “We’re gonna start looking at things, because they have things a little bit backwards.”
At the same rally, the president gleefully recounted an MSNBC reporter getting hit by “pepper spray or a canister of tear gas,” saying he’d “never seen anyone go down so fast.”
Jared and Ivanka are not fans of Time Square billboards broadcasting their role in mass murder
Unfortunately for Javanka, they’re unlikely to come down any time soon:
The Lincoln Project “will not be intimidated by empty bluster,” a lawyer for the group wrote late on Saturday, in response to a threat from an attorney for Ivanka Trump and Jared Kushner over two billboards put up in Times Square. “Sue if you must,” Matthew Sanderson said.
The New York City billboards show the president’s daughter and her husband, both senior White House advisers, displaying apparent indifference to public suffering under COVID-19. Kushner is shown next to the quote “[New Yorkers] are going to suffer and that’s their problem,” above a line of body bags. Trump is shown gesturing, with a smile, to statistics for how many New Yorkers and Americans as a whole have died…. On Friday, Marc Kasowitz, an attorney who has represented the president against allegations of fraud and sexual assault, wrote to the Lincoln Project, demanding the “false, malicious, and defamatory” ads be removed, or “we will sue you for what will doubtless be enormous compensatory and punitive damages.”
In a legal response on Saturday night, attorney Matthew Sanderson told Kasowitz: “Please peddle your scare tactics elsewhere. The Lincoln Project will not be intimidated by such empty bluster…your clients are no longer Upper East Side socialites, able to sue at the slightest offense to their personal sensitivities.
Kasowitz claimed Kushner “never said” the words attributed to him by the ad, which were reported by journalist Katherine Eban in a Vanity Fair article last month. He also said Ivanka Trump “never made the gesture” she is shown to make. “May I suggest,” Sanderson said, “that if Mr. Kushner and Ms. Trump are genuinely concerned about salvaging their reputations, they would do well to stop suppressing truthful criticism and instead turn their attention to the COVID-19 crisis that is still unfolding under their inept watch. These billboards are not causing [their] standing with the public to plummet. Their incompetence is.”
On the bright side…
While Ivanka and Jared may no longer be welcome on the Upper East Side or in other Manhattan neighborhoods, Staten Island would apparently love to have them, a consolation prize we’re sure has brought the couple great comfort:
“The reality is if you kill thousands and thousands and thousands of New Yorkers, you’re not going to re-enter polite society and go to the Met ball,” said the writer Molly Jong-Fast, a senior adviser to the Lincoln Project. The couple might be greeted warmly in some parts of the city, said Joe Borelli, a councilman from Staten Island—which voted for the president in 2016. Mr. Borelli said he has no insight into “polite society” but noted that Ms. Trump and Mr. Kushner “are always welcome on Staten Island.”
The Indiana jurist’s nomination is the devil’s bargain that Trump’s evangelicals have sold their souls for. But if the court overturns Roe, an indignant public may have the final say.
By Neil Steinberg
As the Republican majority in the Senate huzzahs Amy Coney Barrett onto the United States Supreme Court — which is their right — I hope you’ll forgive me for ignoring the hearing completely. This machine grinds onward whether I jam my hand into the gears or not. Why sweat the details? Better to keep my fingers.
This isn’t a sideshow, but the main event, the core of the devil’s bargain Christian extremist America struck with Donald Trump five years ago: rescue our imaginary babies and we’ll forgive you everything else, every flailing, foaming, lying, malicious, pandemic-botching, country-betraying minute.
Elections have consequences, the GOP sneers, two weeks before an election. Point taken. Thank you for the reminder.
Though I wish I could go back in time to replay this week for all those indifferent, what-does-my-vote matter? sorts. It matters because of this.
Hidebound, my-way-or-the-highway religion tries to steamroll the country back to its idea of goodness, via gigantic concern for proto-babies the size of kidney beans and no concern at all for actual baby-sized babies, newborns yanked from the arms of their mothers at the border. Heck, their parents’ paperwork isn’t in order. What choice havewe?
This is like the worst zombie movie ever: “Baby Crusaders of the Apocalypse,” as the Republicans conjure up an army of hacked apart fetuses, which assemble themselves and, eyes glowing, jerkily march on Jerusalem, to liberate the Holy Land from the clutches of Saracen feminists.
Madness. So why am I so inexplicably unruffled? Maybe just numb? No shame there. After four years of this ridiculous circus, with the tiny Trump administration clown car disgorging an endless stream of henchmen and haters, felons and fanatics, what’s one more? I just can’t focus on Amy Coney Barrett.
C’mon in Amy, grab a seltzer bottle and a flappy paddle and get at it. The more the merrier. You won’t be the worst justice on the court, not while Clarence Thomas is around.
Sometimes, as a parlor game, I try to imagine what the Right is thinking. They can’t hope that Roe gets overturned and women will simply shrug, sigh, slip on their white gloves and go back to taking Valium and flipping through the Simplicity Pattern Book. Maybe they do.
I imagine the opposite: indignation unleashed, furious Americans, accustomed to freedom, rattling the rafters of our already shuddering society and finally getting the laws in place that should have been there all along, rather than relying on the rickety jalopy of Roe to carry us where we’re going.
Other countries have gone through this. We could look to the Republic of Ireland for a hint at what might transpire here (if Americans, you know, were the sort of people to look at other countries). Abortion was banned in the constitution of that deeply Catholic nation. There were 25 legal abortions in Ireland in 2016, and Irish women of means were grateful they could finally slip over to England for their abortions, after a wildly divisive case in the early 1990s involving “Girl X,” a 14-year-old who became pregnant after being raped by a family friend. The Irish courts basically tried to put the girl in jail for nine months to force her to bear the child, one of the many gruesome realities that we are shuffling toward.
Most people don’t want that. In May 2018, Ireland had a referendum — after being given a push by the European Union, which tagged banning abortion the human rights violation it certainly is — and guess what? Some 70% of the Irish population wanted to make their own decisions regarding whether to carry a child, thank you very much.
Turns out, people like freedom. One reason we’ve gotten to this sad point in our history, is that most Americans are busily going about their own lives, not tunneling under the lives of others.
One of the boggling mysteries of the past four years is how lightly freedom is held by 41% of the American population, who would see free elections, a free press, science, truth, you name it, battered and beaten in the service of their theoretical tots.
I’m not as broken up as others about this court business because we are never going back.
Column: Amy Coney Barrett’s confirmation was shockingly hypocritical. But there may be a silver lining.
Nicholas Goldberg October 26, 2020
So now it is official: The same Republican senators who in 2016 refused to consider Merrick Garland’s appointment to the Supreme Court because, with eight months to go, it was supposedly too close to the presidential election, have now confirmed Amy Coney Barrett with just eight days left before the election.
This is so unprincipled, so inconsistent and so cynical that it defies the imagination. It is the flip-flop of the century, undertaken by the Republicans for one reason: Barrett’s confirmation ensures a conservative majority on the high court for the foreseeable future.
But here is one good thing that could come of this shameful episode. With millions of people still casting their votes before Nov. 3, perhaps the Barrett confirmation will open Americans’ eyes, once and for all, and show them who they’re dealing with. Perhaps it will persuade them to reject the radical and hypocritical Senate Republicans at the polls.
Barrett’s confirmation, after all, is only one of many irresponsible moves by the Senate majority, led by the craven Mitch McConnell (R-Kentucky), who long ago threw his lot in with President Trump. In recent years, he and his caucus have grown not just more extreme in their ideology but more unscrupulous in their tactics.
Not only did they refuse a hearing to Garland (giving that seat instead to Trump appointee Neil M. Gorsuch), but not long after, McConnell and his colleagues rammed Brett Kavanaugh’s nomination through without a comprehensive investigation of the sexual assault allegations against him.
The Senate majority also slow-walked the confirmation of lower court judges during the final years of the Obama administration — and then sped them up when Trump came into office.
The Senate majority ignored evidence, disregarded facts and refused to hear additional witnesses before acquitting Trump in a half-baked impeachment trial in February, thereby giving the imprimatur of the upper house to the president’s high crimes and misdemeanors.
Senate Republicans have refused to stand up to Trump as he politicized every part of the government from the post office to the census to the Justice Department, and even as he turned the conduct of American foreign policy to his own political ends.
And they did virtually nothing to stop further Russian interference in American elections.
Norman Ornstein, a scholar at the American Enterprise Institute, has identified some of the factors that have driven congressional Republicans to the right over the years and encouraged their take-no-prisoners approach to politics. He cites the no-tax pledge promulgated by conservative activist Grover Norquist and the anti-Washington animus fostered by Newt Gingrich. There was the “Southern strategy” of Richard Nixon and Barry Goldwater to win white votes in the Southern states.
And there’s been the slow but steady disappearance of liberal and moderate Republicans.
In 2012, Ornstein, along with Thomas E. Mann of the Brookings Institution, called the Republican Party “ideologically extreme, scornful of compromise; unmoved by conventional understanding of facts, evidence and science.” Today, Ornstein says the problem is worse. “Now it’s not a party but a cult.”
The GOP today is the anti-immigration party, the party of racial division and the party of Trump. It has squandered any reputation it may once have had for principled fiscal conservatism, presiding over costly and irresponsible tax cuts designed to win votes. It largely rejects bipartisanship, as we saw clearly during the Obama administration.
Democracy only works when rules and norms are in place. It only works when the parties compromise through a process of discussion, deliberation and voting.
Unquestionably, both political parties have made bad decisions over the years; both are susceptible to the tugs of partisanship. Democrats and Republicans alike have engaged in tit-for-tat tactics that make compromise more difficult.
For me, though, the turning point was the mistreatment of Merrick Garland. The Republicans flatly blocked an elected president from exercising his constitutional duty to name a new justice.
That was shocking enough. But now, with the Barrett confirmation, they’ve brazenly reversed their own logic, proclaiming their hypocrisy for the world to see.
That kind of disingenuous politics needs to be rejected.
Over time, the U.S. needs to rebuild a system that allows men and women of different parties, ideas and ideologies to work together in good faith to solve the serious problems facing the country.
Hubble Examines Asteroid That’s Worth More Than the Global Economy
The Hubble Space Telescope has captured a new, clear picture of the 16 Psyche asteroid — one of the most valuable asteroids we know to be in existence, Forbes reported. Some estimates place the value of the asteroid at $10,000 quadrillion. To put that in perspective, the global economy was worth about $142 trillion in 2019.
What makes the asteroid so valuable? Well, for starters, it’s huge — it’s about 140 miles wide. And it appears to be made out of pure metal, which is very rare for an asteroid.
“We’ve seen meteorites that are mostly metal, but Psyche could be unique in that it might be an asteroid that is totally made of iron and nickel,” Dr. Tracy Becker, a planetary scientist at the Southwest Research Institute in San Antonio, Texas, told Forbes.
Psyche is located about 230 million miles from Earth and is one of the most massive objects in the solar system’s main asteroid belt, which orbits between Mars and Jupiter. Because it is so dense and metallic, scientists believe that Psyche is actually a “protoplanet” — the leftover core of a planet that failed to fully form. Many planets, including Earth, have a metal core, typically composed of iron and nickel. Becker believes that Psyche may have been struck by another object during its formation, destroying its mantle and crust.
Although Hubble has been able to get clear images of Psyche, only a visit to its surface will reveal what it’s really like. Fortunately, NASA is planning to do just that as part of its Discovery Program. An orbiter is set to launch from Florida’s Kennedy Space Center in August 2022, putting it on track to arrive at Psyche in January 2026. The orbiter will spend at least 21 months mapping and studying the asteroid’s unique properties. Visiting Psyche could give researchers more insights into the very, very valuable stuff planets are made of.
Amy Coney Barrett and the Second Amendment: Why her “expansive view” is utter BS
Kirk Swearingen October 25, 2020
Amy Coney Barrett | Constitution of the United States of America Photo illustration by Salon/Getty Images
“Pro-life” Judge Amy Coney Barrett, who will almost certainly be seated on the Supreme Court this week, seems to have no problem putting guns in the hands of individual Americans who want to buy them — every Tom, Dick and Kyle. She reportedly takes “an expansive view” of the Second Amendment, writing in her only ruling on gun regulation that it should not be considered “a second-class amendment.”
A number of groups advocating gun control and gun safety, including Everytown for Gun Safety, Moms Demand Action, and the Brady Campaign Against Gun Violence, expressed their deep concerns with Barrett’s nomination in a recent letter sent to leading members of Congress.
The 2008 Supreme Court ruling in District of Columbia v. Heller expanded the meaning of the Second Amendment far beyond militias — regulated or not. And that 5-4 majority opinion was written by Barrett’s mentor, Justice Antonin Scalia.
It might be useful to look back on that ruling to take another look at the “textualist” approach to reading statutes and the “originalist” approach to reading constitutional questions, and to learn what one might then expect of a Justice Barrett.
There are a number of things one might find admirable about Barrett. She was a seriously engaged student at all levels of her education, taking an English degree at Rhodes College and graduating at the top of her law school class at Notre Dame. She’s a mother (of seven) who manages to work in a demanding career. At her gym, she’s apparently known for her commitment to doing pull-ups, for gosh sakes.
Barrett is also a self-proclaimed “textualist” or “originalist” when she looks at statutes or the Constitution. In rendering decisions as a judge, she says she believes in adhering to precedent but also in closely reading the text of an enacted statute or the Constitution, seeking the reasonable meaning of that text, in the context of what most people at the time it was written would consider it to be.
In speaking to Sen. Joni Ernst, R-Iowa, during the confirmation hearings, Barrett put it this way: “My own approach to it would be textualism. The intent of a statute is best expressed through the words — so, looking at what the words would communicate to a skilled user of the language.”
Barrett works both as a textualist and as a particular kind of “originalist,” one who focuses on the original meaning, not the intent, of the founders, taking the same approach most recently popularized by Scalia, for whom she clerked in 1998-1999. (Apparently, the “intent” approach had been discredited in the 1990s, so conservative judges moved on to a seemingly paradoxical “new originalist” approach of looking for original meaning.)
To understand how this can work, a look at the language of the Second Amendment may be instructive, followed by a brief discussion of the Heller decision resulting from Scalia’s divining of the text of the framers, as ratified by Congress as part of the Bill of Rights in 1789.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As we all know, that’s it — 27 words with some oddly placed commas and capitalized terms. (Odd for us, but not for that era; look, you are newly on your way to being a new originalist!)
Given that Barrett has a bachelor’s in English, from Rhodes College in Memphis, it seems fair to turn to a well-regarded reference here. According to “Fowler’s Modern English Usage,” there should be, in this case, no comma after “Militia” because what we see in the amendment is an instance of something called “absolute construction.” Fowler defines it this way:
Defined by the OED [Oxford English Dictionary] as ‘standing out of the usual grammatical relation or syntactical construction with other words’, it consists in English of a noun or pronoun that is not the subject or object of any verb or the object of any preposition but is attached to a participle or an infinitive, e.g., The play being over, we went home./Let us toss for it, loser to pay.
That might be a bit dizzying, but given that Barrett was an English literature major and is a textualist, her imperative to avoid misinterpretation here would seem like a piece of cake.
To me (and to many others, including a number of Supreme Court justices), the obvious sense here is “In that a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” The latter thing, the right, is contingent on the former thing, the well-regulated militia and the need for such.
The original Congress that passed the Bill of Rights might have chosen to turn it around, as in “The right of the people to keep and bear Arms shall not be infringed because a well-regulated Militia is necessary to the security of a free State” (and it was in that order in an original draft by Madison), but they chose to emphasize the “well-regulated Militia being necessary” clause, which in effect makes it a conditional clause — if this is true, then this other thing follows.
But a textualist and/or originalist looks not at what the text reasonably means to people today but to the people at the time the provision or statute was enacted. The argument is that in doing so, they are honoring the enacted law, as explained in a 2019 article on The Federalist Society blog:
… the bottom-line principle of textualism is that the enacted text of a law is to be given supreme deference as the ultimate repository of the law’s purpose. Because the object of textualist interpretation is enacted text, many mainstream textualists reject the use of legislative history — history that has never been enacted into law.
Hold that thought, because when the text is considered to be not as clear as it needs to be, the textualist then is able to hunt for more information — in history, traditions and, if things are still murky, in more esoteric areas, say, sea shanties. (Okay, likely not sea shanties, unless the statute has to do with, say, whaling or piracy. Then maybe so.)
Speaking of militias, the Militia Act of 1903, also known (somewhat hilariously) as the Dick Act, for Ohio congressman Charles Dick, was passed after militia groups sent by states proved untrained and disorderly and generally lacking standards (e.g., different uniforms) during the Spanish-American War. Unfortunately, the act mentioned the creation of both an “organized” and an “unorganized” militia, and thereby confused the issue.
The organized militia became the National Guard; what was meant by the “unorganized militia” was simply a reserve of all men 17 to 45 years of age who might be called into service, if needed. It certainly did not mean a ragtag militia that gathers together for regular gun-fondling sessions or, just for instance, to concoct a plot to kidnap, “try” and execute a duly elected state governor. (You know, for tyranny.)
The “Dick Act” works on a few levels, then — it’s all male, and it’s a bit confused, like many men (I include myself). Although that particular Dick served long ago, it seems we still have a slew of Dicks in Congress purposely drawing up vaguely worded legislation, the very bane of a textualist.
Muscle-bound ponytailed oldsters riding around on choppers and those odd insect-like three-wheeled motorbikes as “militia” members often claim that the Dick Act gives them an absolute right to amass a personal armory as part of an unorganized militia. But, again, that is not what was meant.
By the way, The Southern Poverty Law Center (SPLC) estimates there are at least 300 private militia groups in the United States, nearly all of them far-right so-called patriot groups.
According to the SPLC blog Hatewatch, far-right militia member Ryan Balch, who was photographed walking with Kyle Rittenhouse before Rittenhouse killed two protesters in Kenosha, Wisconsin, in August, said they were not part of a well-regulated militia:
“There was not a whole lot of communication [that night], and that was even within the protesters themselves,” Balch told Hatewatch. Asked what he would need to call a militia well-regulated, Balch said, “There would have to be some organization.”
That last bit is worth repeating: “There would have to be some organization.”
The Scalia-led Heller decision took gun ownership beyond even the contested context of a well-regulated militia, extending it to personal ownership of handguns in defending “hearth and home.” Further, it dispensed with the part of the law in Washington, D.C., that called for guns in the home to be locked up or otherwise secured when not in use.
Soon after Heller, states began to pass laws allowing citizens to carry guns nearly anywhere they desired. Walmart? City Hall? Church? Sure, why not?
But despite Scalia’s freewheeling textualist reading of the Second Amendment, ownership outside the context of service in that annoyingly modified militia was never mentioned in the Constitution or in Madison’s drafts preparing for the convention. According to author Michael Waldman,
Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise.
It’s also worth repeating that last line: In fact, every other time the court had ruled previously, it had ruled otherwise.
As you will see, Scalia’s originalist reading somehow dispensed with the idea of a militia. The prefatory clause (“A well-regulated Militia, being necessary…”) was reduced to a mere example of why Americans need to keep and bear arms:
The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
Once you take that leap, well, you can go anywhere you like. Scalia was likely humming the “Theme of the Fast Carriers” from “Victory at Sea” when he got over that hump. The justice looked to history and tradition, to philosophy and English law and “natural law” in justifying his decision to divorce the meaning of the right from the idea of a militia. He invokes an “ancient right of individuals to keep and bear arms” and notes that most state constitutions allowed gun ownership. All of that may be true, but none of it can be found in the enacted text.
Scalia might as well have just gone ahead and adopted the NRA’s concept of gun ownership as a “God-given right.”
Speaking of that, a 2019 paper on the NRA and religious nationalism published in Naturenotes:
Over the last 40 years, the NRA has deliberately pivoted to protecting the Second Amendment, not as something merely important but as something sacred to be defended at all costs from the profane hands of the government. The NRA has done this by deliberately using religious imagery, language, and icons such as Charlton Heston, that map onto the largely Protestant religious beliefs and religious nationalism tracing back to the founding of the nation.
Judge Barrett piously promises that she will not make law from the bench, that she will mostly be guided by precedent. But if textualism/originalism got us to a unprecedented precedent that has resulted in people brandishing guns in schools, churches and city halls, how much stock should we reasonably put into this technique? Whose right to life, liberty and the pursuit of happiness obtains here — the gun fetishist or the family of the murdered child? The family of the teenager whose suicide was made perfectly efficient by the presence of a handgun in the home?
The late Chief Justice Warren Burger, a Nixon appointee, famously wrote that the NRA had promulgated fraud about the meaning of the Second Amendment:
The Second Amendment of the U.S. Constitution guarantees a “right of the people to keep and bear arms.” However, the meaning of this clause cannot be understood apart from the purpose, the setting, and the objectives of the draftsmen. At the time of the Bill of Rights, people were apprehensive about the new national government presented to them, and this helps explain the language and purpose of the Second Amendment. It guarantees, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The need for a State militia was the predicate of the “right” guarantee, so as to protect the security of the State. Today, of course, the State militia serves a different purpose. A huge national defense establishment has assumed the role of the militia of 200 years ago.
In an 2018 opinion piece published in response to the student-led nationwide March for Our Lives, retired Supreme Court Justice John Paul Stevens wrote that the original fears of a national standing army creating problems for states was no longer a legitimate concern. Stevens called the Second Amendment “a relic of the 18th century” and advocated that it should be repealed.
Even the NRA itself has tacitly admitted what the opening clause means for the rest of the statement. According to Waldman, who writes of the takeover of NRA leadership by gun-rights radicals in 1977, the NRA dropped that portion of the Second Amendment on their headquarters in Fairfax, Virginia, posting only the latter part in large letters in the lobby, as if there were no contingency: … the right of the people to keep and bear arms, shall not be infringed.
Nice trick, that, just removing the offending clause — as Scalia, in essence, did as well. The Second Amendment’s “well regulated” may be the most willfully ignored modifier in history. The Heller decision also ensured that no one had to store guns at home with safety in mind.
In his book “American Dialogue: The Founders and Us,” historian Joseph Ellis, a Pulitzer Prize winner, criticized Scalia’s Heller decision as a kind of parlor trick used to push a political agenda:
If Heller reads like a prolonged exercise in legalistic legerdemain … that is because Scalia’s preordained outcome forced him to perform three challenging tasks: to show that the words of the Second Amendment do not mean what they say; to ignore the historical conditions his originalist doctrine purportedly required him to emphasize; and to obscure the radical implications of rejecting completely the accumulated wisdom of his predecessors on the court.
On a larger level, a number of the founders — James Madison and Thomas Jefferson in particular — saw the Constitution as a living document. Jefferson wrote that “laws and institutions must go hand in hand with the progress of the human mind.” In a review of Ellis’ book for the New York Times, Jeff Shesol wrote:
It would never have occurred to Madison … that the Constitution should dictate every answer or foreclose all debate, no matter what is said at meetings of the Federalist Society or in Supreme Court confirmation hearings. As Ellis argues, the prevailing conservative doctrine of “originalism” is a pose that rests on a fiction: the idea that there is a “single source of constitutional truth back there at the founding,” easily discovered by any judge who cares to see it.
Another American historian, Heather Cox Richardson, covering the confirmation hearings for her “Letters from an American” newsletter, addressed Barrett and the real purpose of originalism, which is to serve “a radical capitalism”:
The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure…. Their desire to roll back the changes of the modern era serves traditional concepts of society and evangelical religion, of course, but it also serves a radical capitalism. If the government is as limited as they say, it cannot protect the rights of minorities or women. But it also cannot regulate business. It cannot provide a social safety net, or promote infrastructure, things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. In short, under the theory of originalism, the government cannot do anything to rein in corporations or the very wealthy.
If I were to try to play “textualist” myself, I would find it notable that the framers capitalized “Militia” in the amendment. Though they were also a bit “cap-happy” in those days, the fact that they capitalized the word is an intriguing clue as to what they intended. To me, that “well regulated Militia” reads as one entity — something perhaps in existence in all 13 states, but to be organized into a whole in defense of one nation — not the innumerable little “militias,” heavily armed and running amok in their QAnon T-shirts and mail-order camouflage, that we despairingly see today.
Judge Barrett is smarter than I am. I have no doubt she can do more pull-ups, both physically and linguistically. But I’ll stand on the side of a multitude of other very intelligent people who read the right to bear arms as constituting a right only when, and if, it is done as part of a well-regulated militia. And we have that — it’s called the National Guard. You want to play with people-killing weapons? Join the Guard. Otherwise, grab a rifle or shotgun and go hunting, if that’s your thing.
If you read anything else into that while claiming to be an originalist, you are perpetrating a very solemn-sounding con on the American public and likely should wear a tricorn hat when out in publick. You know, so we can see you coming.
Conservatives naturally want to keep the founders alive and the Constitution dead. Unless it serves a purpose for them; then, with originalism, they perform a kind of séance to bring the document back to a sort of sham life — and if the words themselves are a burden, they blithely look to English common law, philosophy and elsewhere for guidance.
I myself have cherry-picked some quotes for this piece. It’s human nature — and I’m trying to keep this article from becoming so long that no one reads it. We may all be textualists now, as Justice Elena Kagan put it in her 2015 Scalia Lecture at Harvard (to the glee of the Federalist Society and some of her conservative colleagues), but we are also human — sometimes we see what we want to see. Or as Paul Simon put it, “A man hears what he wants to hear and disregards the rest.”
What will Justice Barrett find in the words of the founders to help her rule on challenges to the Affordable Care Act, or Medicare, or the environmental regulations so critical to addressing climate change?
The way I read it, if Barrett were to be faithful in her reading of the amendment, she would stand less on the recent precedents funded by the Cato Institute and the NRA — precedents that have caused unending misery and grief and have made our society much less safe — and actually begin to curtail the so-called rights of gun owners.
In that last sentence, Barrett and other textualists might note that I purposively use the subjunctive. It is a mood that is already disappearing from the language, but in my time it was often used for contrary-to-fact statements.