BREAKING
The second woman appointed to the Supreme Court, Justice Ginsburg’s pointed and powerful dissenting opinions earned her late-life rock stardom. [continued…]
Repost from the San Francisco Chronicle
As a kid, I was always a head shorter than other boys, which meant I was bullied — mocked, threatened, sometimes assaulted.
Childhood bullying has been going on forever. But America has become a culture of bullying — the wealthier over the poorer, CEOs over workers, those with privilege and pedigree over those without, the white over the brown and black, men over women.
Sometimes the bullying involves physical violence. More often it entails intimidation, displays of dominance, demands for submission, or arbitrary decisions over the lives of those who feel they have no choice but to accept them.
The hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Sept. 27 was a window into our bullying culture.
On one side: powerful men who harass or abuse women and get away with it, privileged white men intent on entrenching their power on the Supreme Court, men vested with the power to take away a woman’s right to choose what she does with her body.
On the other side: women with the courage to tell what has happened to them, to demand an end to white male privilege, and to preserve and enlarge their constitutional rights.
Christine Blasey Ford was poised, articulate, clear and convincing. More than that: She radiated self-assured power.
Kavanaugh, by contrast, showed himself to be a vicious partisan — a Trump-like figure who feels entitled to do and say whatever he wants, who suspects left-wing plots against him, who refuses to take responsibility for his actions, and who uses emotional bullying and intimidation to get his way.
Even if Kavanaugh gets on the Supreme Court, a large portion of the American public will never trust him to be impartial. Many will never believe his denials of sexual harassment. Most will continue to see him as the privileged, arrogant, self-righteous person he revealed himself to be.
Which brings us to the upcoming midterm elections.
It’s not really a contest between Democrats or Republicans, left or right. It’s a contest between the bullies and the bullied. It’s about the power of those who are rich, white, privileged or male — or all of the above — to threaten and intimidate those who aren’t.
And it’s about the courage of the bullied to fight back.
Donald Trump is America’s bully-in-chief. He exemplifies those who use their wealth to gain power and celebrity, harass or abuse women and get away with it, lie and violate the law with impunity, and rage against anyone who calls them on their bullying.
Trump became president by exploiting the anger of millions of white working-class Americans who for decades have been economically bullied by corporate executives and Wall Street.
Even as profits have ballooned and executive pay has gone into the stratosphere, workers have been hammered. Their pay has gone nowhere, their benefits have shrunk, their jobs are less secure.
Trump used this anger to build his political base, channeling the frustrations and anxieties into racism and nativism. He encouraged Americans who have been bullied to feel more powerful by bullying people with even less power: poor blacks, Latinos, immigrants, Muslims, families seeking asylum.
This bullying game has been played repeatedly in history, by self-described strongmen who pretend to be tribunes of the oppressed by scapegoating the truly powerless.
Trump is no tribune of the people. He and his enablers in the Republican Party are working for the moneyed interests — the Koch brothers, Sheldon Adelson and other corporate and Wall Street chieftains — by cutting their taxes, eliminating regulations, slashing public services and allowing them to profit off public lands, coastal waters and privatized services.
The moneyed interests are America’s hidden bullies. They have enlarged their net worth by repressing wages (or pushing the companies they invest in to do so), and enlarged their political power through gerrymandering and suppressing votes (or pushing their political lackeys to do so).
Their capacity to bully has grown as the nation’s wealth has become concentrated in fewer hands, as the economy has become more monopolized, and as American politics have become more engulfed by big money.
It is time to fight back against the bullies. It is time to join together to reclaim economic and political power.
It begins with the midterm elections on Nov. 6.
© 2018 Robert Reich
Robert Reich, a professor of public policy at UC Berkeley, is the author of “The Common Good.”
If you are on the Benicia Independent email list, I can pretty much be sure that your alarm bells – like mine – are going off. A sampling…
…and of course, I could go on. I confess that it all leaves me somewhat at a loss, personally. We’ve been on alert since The Donald won the presidential election, vowing to stand vigilant, to resist, to move the country back into the progressive mainstream. But we’re tired. How do we cope?
I take slivers of hope from a few recent sources:
Making democracy work means holding on to our principles, having clarity about our principles, and then having the confidence to get in the arena and have a serious debate. And it also means appreciating that progress does not happen all at once, but when you put your shoulder to the wheel, if you’re willing to fight for it, things do get better….Better is good.
Now just yesterday, we saw a composed survivor of sexual assault and a historically intemperate and deeply suspect judicial candidate followed by two US Senators, a Democrat and a Republican, reaching a sensible compromise on the horns of the partisan dilemma in the U.S. Senate. Watching the proceedings from afar, we sat by, most of us helpless and dreading the 
outcome. But those who could, opted for public outrage, with signs and shouting. A few incredibly brave ones went public with their stories, and two made history confronting a Republican Senator in an elevator booth. The combined efforts of all these activists stopped the elevator ride for Brett Kavanaugh – at least for a week. Definitely NOT perfect… but BETTER.
Open Government Commission will hold a last-minute public hearing on November 3rd, giving candidates a chance to defend against hit pieces and misinformation. It’s good that there are a number of public hearings in our small town where we can go listen to and ask questions of the candidates themselves. See the schedule of forums at birdseyeforbenicia.com/candidate-forums.
Here in Benicia, I have come under personal attack for favoring one candidate, Kari Birdseye, over other credible opponents. The Solano County Democrats and Progressive Democrats have been criticized for endorsing only Kari while the Labor Council and its member unions endorse without blame. (Well, except for complaints by some of our Benicia teachers, who resent the controlling influence over their endorsement by the Labor Council.) Kari Birdseye is in my opinion far and away the most environmentally aware, progressive and highly qualified candidate for City Council. I personally hope that Christina Strawbridge comes in second. It will be great – no, GREAT – in this #MeToo year to have 3 qualified women on our City Council. But my first priority has been and remains, to secure a seat for Kari Birdseye. See more at birdseyeforbenicia.com.
Here in Benicia, there are excellent substantiated reasons why NOT to vote for City Council candidate Lionel Largaespada. His registration as a Republican aside, he stood with Valero and Texas executives and attorneys in favor of dangerous and dirty oil trains cutting over the mountains and through California to Benicia. He was paid to help defeat a 2012 California tobacco tax initiative that would have funded cancer research. His friendly outreach and community service is notable, but he is undeniably a supporter of big business, and has demonstrated that he was impervious to community activist’s efforts to educate and organize for environmental health and the safety of the community. Let’s cast our votes and hope that the Council can proceed without that kind of drag on a bright future for our beloved city.
the Benicia Herald’s poor track record of owner support for staff AND the hard financial times for print media in general, it wouldn’t surprise me to see the paper close. Wait and see. (Nick’s good-bye is a poignant moment in local news.)Well, if you made it through this lengthy analysis, you deserve a thanks and kudos. I’ll try to be more regular with my newsletters in the future. Nice chatting with you – let’s all make Benicia a BETTER place.
Roger Straw
Repost from DeSmog Blog
As Judge Brett Kavanaugh’s Supreme Court nomination hearings get under way, understanding his appointment’s potential impacts for corporate regulation and the climate means looking back all the way to 1890.
That was when a nearly 50-year stretch known to legal historians as the “Lochner era” kicked off — a time better known in U.S. history as the age of the robber barons.
The Lochner era gets its name from a 1905 Supreme Court case, Lochner v. New York, which threw out state limits on the number of hours bakers could work in a week. This case’s reasoning was later overturned by the U.S. Supreme Court in a 1937 case that rejected a half-century of judicial thinking — doctrines that had led the court to toss out laws governing working conditions, creating food safety standards, and barring child labor.
In 1937, as the Great Depression raged, the Supreme Court faced pressure from President Franklin Delano Roosevelt, frustrated after the Court rejected 11 of 13 early New Deal programs as unconstitutional. The Constitution doesn’t say how many justices are allowed to sit on the Supreme Court — and FDR threatened to add enough justices to change the court’s leanings.
Not long after FDR’s threat, Justices Owen Roberts and Charles Evans Hughes joined majorities that rejected Lochner and found the new National Labor Relations Board constitutional — a move that’s gone down in legal history as the “switch in time that saved nine.” (Nine being the number of justices sitting on the Court.)
During the Lochner era, the Supreme Court followed a “non-delegation doctrine” that required Congress to play an active role in the most minute details of decision-making and policy-setting.
Bringing it back could have huge significance for how the U.S. regulates the environment, food safety, the Internet — and global climate change.
After the Lochner era ended, the Supreme Court allowed Congress, which writes the laws, to delegate the details of rules and regulations to government agencies in the executive branch, which enforces laws. So, for example, the U.S.Environmental Protection Agency (EPA) can decide just how much of a given chemical is safe in a city’s drinking water — and change those rules as new hazards are uncovered — without getting both houses of Congress to sign off on every detail.
Taken to the extreme, uprooting its ability to delegate could require Congress to write or approve every new federal rule and regulation, a herculean task in a country of over 300 million people. The House and Senate’s 535 members would also have to tackle jobs currently performed by dozens of federal agencies like the Food and Drug Administration (FDA), the Federal Communications Commission (FCC), and the Department of Agriculture (USDA).
But there are signs that the Supreme Court might allow the non-delegation doctrine to slip back into the law. In March, the Supreme Court agreed to review a case called Gundy v. United States, limiting its review to non-delegation issues.
And with Justice Kavanaugh shifting the court far to the right, that relatively obscure case might represent a major opportunity for corporations to chip away at the foundations of America’s regulations, including its environmental protections.
“This is a really important sleeper case,” Sean Hecht, a law professor at University of California, Los Angeles told McClatchy in June, before Kavanaugh was nominated on July 9. If the Supreme Court handed down a broad ruling, “[p]arties would feel emboldened to say, you can’t make us do this under the Clean Air Act, or Clean Water Act, or the Endangered Species Act, because Congress wasn’t precise enough in the policy guidance it gave the agency.”
The Gundy case, which involves a dispute over the Sex Offender Registration and Notification Act, directly relates to criminal, not civil law — but legal observers warn that reviving non-delegation in any context could open the doors to hard right-wing judicial activism in much broader contexts.
“There are many on the right that want to upend nearly a century of law,” said Lisa Graves, co-director of the watchdog group Documented and a former Deputy Assistant Attorney General, warning that Kavanaugh’s appointment could kick off a move back towards the Lochner era.
The Lochner era’s laissez-faire philosophy — a hands-off, “let it be” approach that promotes slashing corporate regulation in the name of limiting government power — is one that many Koch-affiliated organizations and right-wing think tanks share today.
The Federalist Society, whose top donors include David Koch, Charles G. Koch Charitable Foundation, and Koch Industries, according to The Hill, has for years sponsored and hosted debates on reviving the non-delegation doctrine.
Kavanaugh, a long-time Federalist Society member who briefly resigned at the start of his tenure with the G.W. Bush White House Counsel, has remained active at Federalist Society events, though in 2001 he sought to distance himself from the conservative legal group in the press.
“The Federal Society role here is extraordinary,” said Graves. Leonard Leo, who has served for years as the society’s executive vice president, took a leave to advise President Trump on judicial nominees. He helped craft the list used by the Trump administration to decide who to appoint to Supreme Court vacancies.
By speaking at and attending many of the Federalist Society events, Kavanaugh maintained a close connection to the group after he became a judge in D.C.’s U.S. Court of Appeals.
“Judges are like jewels in the crown of the Federalist Society,” Graves said. “In essence, his involvement lends the prestige of his office to that organization.”
When it comes to climate change, Kavanaugh can see that there is a problem. “The earth is warming. Humans are contributing,” he said in 2016. “There is a huge policy imperative. The pope’s involved.”
But in 2016 during oral arguments for a lawsuit against the Clean Power Plan, Kavanaugh’s reasoning against Obama’s signature climate change program took on a Lochner-esque tone as he argued that Congress hadn’t clearly delegated authority for Obama’s EPA to regulate carbon emissions under the Clean Air Act. “Global warming is not a blank check, either, for the President,” Kavanaugh said.
During hearings on his appointment to the D.C. Circuit, Kavanaugh called Lochner a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.”
“Yet after ascending to the D.C. Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices,” Slate reported in July.
“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told Inside Climate News. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough.”
The two Republican Senators seen as most likely to shift course on Judge Kavanaugh’s appointment to the Supreme Court are Senators Susan Collins and Lisa Murkowski. They hail from two of America’s northern-most states. And those two northern states, Alaska and Maine, have already begun to feel the consequences of a changing climate.
In Alaska, the climate has been warming so fast, the Washington Post reported in January, that computers rejected data from Barrow, Alaska’s climate monitoring stations because the temperatures were so high that the algorithms assumed something had gone wrong with the monitors (it hadn’t.) Some parking lots and airport runways in the state are now equipped with cooling systems to keep the pavement from buckling as permafrost melts — a problem that’s putting building foundations at risk too.
Meanwhile Maine’s iconic lobsters are under threat not only from ocean acidification, but also from warming seas and invasive marine life. The state’s been experiencing a “marine heatwave” that’s raised ocean temperatures more than 10 degrees above normal levels.
Neither Collins nor Murkowski, who both have broken from party lines in the past, has a stellar track record on climate issues, but polls in their home states have shown strong public support for action.
The impacts of a Supreme Court appointment can be expected to long outlast the Trump administration’s time in office — potentially adding years or decades of delays if a later EPA seeks to take action on the climate.
To some degree, limits on government powers are right in line with a more moderate conservative view.
But the non-delegation doctrine is linked to some of the furthest excesses of unchecked capitalism, Supreme Court justices have pointed out. “Once we start down the road of saying Congress cannot tell even a private agency to go and make some standards, which we all know will be followed, once we start down that road there is no stopping place,” Justice Steven Breyer warned during oral arguments in 2014.
And that would serve the goals of some among the most extreme right-wing activists in the U.S. today. Trump’s former chief strategist Steve Bannon called for the “deconstruction of the administrative state,” the New York Times reported in February 2017.
A full revival of Lochner would go a long way towards achieving that goal — and the consequences for the climate could be dire.
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