For GOP Senators, Confirming Kavanaugh Goes From Option to Duty

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I do not know who Casey Mattox is, but a June tweet of his popped up in my Twitter feed the other day:

I rate this a perfect tweet. It is both concise and evergreen.

The Supreme Court of the United States is supposed to be the clear third of three branches of the federal government. The Judicial Branch is not supposed to make laws or give orders of any kind. Courts are meant to determine the constitutional legality of disputed actions between individuals and groups. The legislature legislates, the executive executes, and the judiciary judges. It’s not a difficult concept.

Unfortunately, bad-faith reading of the Constitution has resulted in a politicized court system in which many actually make the ridiculous argument that judges should conjecture what the consequences of a law will be, instead of simply reading the law itself, and rule based on those assumptions. SCOTUS Justices Ruth Bader Ginsberg and Sonia Sotomayor do not even try to hide their use of this method when writing decisions from the bench.

As outraged as everyone should be with the state of liberal jurisprudence, Brett Kavanaugh is not my ideal Supreme Court justice either. As Judge Napolitano has eloquently explained, Kavanaugh’s understanding of the 4th Amendment is wrongheaded and dangerous. If this were the case being made against Kavanaugh, I would be all ears.

Instead of criticizing the processes and actions of the federal government based on constitutionality, philosophy, and the individual human rights the United States of America was founded upon, hazy memories from many decades ago, that have conveniently resurfaced exclusively in their owners’ minds only as Kavanaugh’s illustrious career is set to culminate in the highest court in the land, are being used to railroad his confirmation.

The accusations made against Kavanaugh are unverifiable and uncorroborated within themselves. They are also immaterial to the situation at hand.

As someone who generally disagrees with but respects Ronan Farrow, I am shocked and disappointed that he agreed to publish something as salacious, hazy, and irrelevant as his September 24th story. Its publishing undermines the credibility of actual sexual assault victims and needlessly politicizes the #MeToo movement which the entire country, albeit to varying degrees, is generally supportive of.

The point of view of the Democrats regarding this matter deserves no consideration from honest and thoughtful people. They decided to vote against Kavanaugh as soon as he was nominated and almost entirely forewent asking relevant questions during his confirmation hearings. Instead, they delayed the process on the basis of arcane technicalities and focused on creating sound bites and video clips throughout the duration of an agonizing and embarrassing process. They have since done their best to capitalize on allegations against Kavanaugh to delay his confirmation even further, certainly hoping that they can run out the clock through midterm elections or at least keep Kavanaugh from being confirmed before the Supreme Court begins their October session.

GOP Senators now have a choice. They can allow the media and opposing political party to bully and shame them into submission, or they can grow a pair by taking a stand against a ballooning culture of hyperbole and hysteria.

The GOP Senators will set a historical precedent either way. The former choice would make it clear that loosely-characterized sexual assault allegations from decades ago are a political weapon they will not fight back against. This will be the end of the current GOP and likely the end of textualist jurisprudence in the Supreme Court for decades. The latter choice would promote the dignity of the accused and take the wind out of bad-faith political actors’ sails, at least for the time being.

I am not a Republican and have never voted for a Republican. I registered as a Democrat when I first became eligible to vote and will officially become a member of the Libertarian Party in 2019. If GOP Senators cave, they can bet that more and more of their constituents will join me in the LP or simply stay home and laugh as Democrats wipe the floor with them in November.

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For GOP Senators, Confirming Kavanaugh Goes From Option to Duty

Quick Thoughts on the Kavanaugh Allegations

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I would like to share a few thoughts about the sexual assault allegations being made against SCOTUS nominee Brett Kavanaugh by Christene Blasey Ford. I will not provide an adequate summary of the situation within this post, so please do some research before checking out my analysis. I would prefer to have written this in essay format, but I believe the bullet points below will do a better job of summing up the way I see it.

Sexual Assault

  • Being 17 and drunk does not excuse sexual assault.
  • What constitutes sexual assault is not well-defined or well-understood. The lines between playing around, making a sexual advance towards someone, having a momentary slip in judgment, and earnestly attempting to force someone into a sexual encounter can be blurry. It is even blurrier for teenagers, and was certainly even blurrier for teenagers of yesteryear.
  • As a socially liberal individual, I do not believe that government or public oversight of teenage sexual interaction is a good idea. Sex and human relationships are generally too complicated for third parties to be able to fully comprehend, so authorities should only be consulted in extreme circumstances. Otherwise, young people as well as adults should be free to take risks amongst each other.

The Law

  • As the alleged incident between Kavanaugh and Ford took place 35 years ago, we are long past the statute of limitations. This issue is about conduct and character, not the law.
  • Although our legal system places the burden of proof on the accuser and presumes non-guilt until guilt is proven beyond a reasonable doubt, this is irrelevant in the court of public opinion or SCOTUS nominations.
  • Believing someone is innocent until proven guilty is a value that I happen to share, but outside a court of law, it is a personal view, not a legal one. Reasonable people can disagree here.

The Sniff Test

  • Christene Blasey Ford is probably telling the truth at least in part. There is some documented history of Ford discussing the matter in the past, and it is hard to imagine that she or anyone else would make up a story like this completely out of thin air.
  • Remembering the exact details of an event from 35 years ago is impossible for both Kavanaugh and Ford. Our brains remember certain details of our history, and our imaginations fill in the rest. This makes it difficult to accept either party’s version of the story without substantial evidence or witness testimony.
  • Emotion can also cloud our judgment as what we feel we experienced may not mirror what we actually experienced.
  • Ford’s lawyer Debra Katz defended Al Franken when he was accused of sexual misconduct, saying, “He did not do this as a member of the U.S. Senate.” This is obviously true, but, unlike Kavanaugh, Franken was an adult when his misconduct took place. Katz appears to be a partisan lawyer, not an impartial defender of the Constitution or human rights.
  • Ford is on the left-wing of the political spectrum, so certainly has a political bias against a textualist judge like Kavanaugh.
  • Neither Katz’s nor Ford’s partisanship has any bearing on the accuracy of Ford’s story, but it does make them less credible.
  • Kavanaugh and Mark Judge, the other individual accused of assault and Kavanaugh’s friend, deny the allegations wholesale.
  • By all accounts, the alleged incident between Kavanaugh and Ford is in no way representative of Kavanaugh as a person. However, one’s generally saintly behavior does not negate one’s sins.

Politics

  • Senator Dianne Feinstein knew of Ford’s allegations before Kavanaugh’s senate confirmation hearing, but chose not to question him about it in any way. Feinstein is obviously using Ford’s story as a political weapon, which is shameful.
  • Regardless of how true Ford’s allegations are, Feinstein clearly timed the release of her name and story as a way to derail Kavanaugh’s nomination in the 11th The senate vote to confirm him is scheduled to be completed within a week.
  • Democratic Senators have been against Kavanaugh’s confirmation since long before his confirmation hearings and put on an embarrassing and hysterical display of partisanship during them. This includes attempting to smear Kavanaugh’s assistant as a white nationalist for momentarily resting her hand in the “a-okay” position, which is falsely described as a racist dog whistle by some on the left and in the media.
  • Senate Republicans can afford to delay the vote for at least another month without any risk of losing the senate and their ability to confirm justices without any Democrat support in November’s midterms (though I am completely unaware of how senate judiciary committee rules would come into play here).
  • Up until Democrats’ blocking of Ronald Reagan’s nomination of Robert Bork, there was little partisanship in these proceedings. Until Bork was blocked in 1987, the average SCOTUS nominee received 87% senate approval and 49% were confirmed unanimously. Since Bork, partisanship in voting has dramatically increased, especially from Democrats.
  • Trump’s first SCOTUS nominee, Neil Gorsuch, had no allegations of misconduct of any kind alleged against him, yet was confirmed by the Senate by a slim margin of 54-45 with only three Democrats voting in his favor. Justice Alito received only four votes from Democrats in 2005. This shows that Democrats are clearly in it for the politics, not justice, character, or whatever else they claim to be standing for.
  • Republicans have certainly become more partisan too, and refused to even hold confirmation hearings for President Obama’s last SCOTUS nominee Merrick Garland, arguing that it is tradition to deny a lame duck president’s nominations until after ensuing elections.
  • It can be argued that 11th hour sexual assault allegations to derail SCOTUS nominations sets a terrible precedent, but with as much partisanship as we are seeing now, the precedent has already been set.

Summary

  • The allegations against Kavanaugh should not be categorically denied, but should certainly not be believed at face value. Both Republicans and Democrats are playing politics, and it is unclear to me that Kavanaugh’s alleged discretions are so damning that he should be denied an opportunity to serve on the Supreme Court. If Republicans have a way to investigate the situation and still have time to nominate Kavanaugh before midterms, they should do so. However, it would be hard to blame them for proceeding as planned as there is nothing they can do to satisfy the Democrats short of leaving Justice Kennedy’s seat vacant until a left-wing justice is nominated.
  • President Trump could have avoided this mess by nominating Amy Coney Barrett instead of Kavanaugh. Besides being a far better judge, nominating a woman would have taken the #MeToo card out of Democrats’ hands.

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Quick Thoughts on the Kavanaugh Allegations

It’s Time to Calm Down about Russian Meddling

As the Trump-Russia collusion conspiracy theory has, via lack of evidence, all but withered away, it is time to set the record straight on Russia’s involvement in the 2016 election. What many dramatically refer to as an attack on our democracy or even an act of war was actually closer to a non-event that US foreign policy is to blame for. Instead of fear, anger, or hostility, we should react to Russia’s alleged involvement in the 2016 election with empathy, pity, and national self-reflection.

In an ideal world, the Kremlin and the US federal government would be mutually respectful allies, and American and Russian people would engage in commerce with each other freely. But we do not live in an ideal world. We live in a world in which choices made by contemporary governments and individuals as well those made in the past (along with circumstances outside of anyone’s control) have inculcated Americans and Russians with different languages, cultures, values, and fears. Because of this, it may be impossible for the US and Russia to ever eliminate hostilities wholesale and create a live-and-let-live type of atmosphere.

Even so, I feel that a Washingtonian/Jeffersonian foreign policy is our best and safest bet. Instead of getting caught up in entangling alliances, we should seek to make the best of an imperfect world by accepting countries for what they are and allowing their and our people to seek legitimate and independent roads to happiness and prosperity when they see fit.

George Washington and Thomas Jefferson summed up what I believe to be the core of good foreign policy in each’s farewell and inaugural addresses respectively:

“It is our true policy to steer clear of permanent alliances with any portion of the foreign world…Harmony, liberal intercourse with all nations, are recommended by policy, humanity, and interest.” -George Washington

“Peace, commerce and honest friendship with all nations; entangling alliances with none.” -Thomas Jefferson

Instead of sanctioning Russia and allowing NATO to usurp our national interests, we should knock down any roadblocks in our trade routes that we have the power to. If Russia reciprocates, great. If they don’t, our liberal policies will serve to the betterment of all anyway. Two wrongs don’t make a right.

I empathize with the heart of neoconservative foreign policy which, the way I see it, refuses to stand idly by as nations are invaded or as genocides and other human rights violations occur. There is virtue in universal recognition of the individualist philosophy preached by our Forefathers and in seeking to approach foreign affairs this way. One problem, however, with this foreign policy is that it can create a hammer-without-a-nail mindset. What may actually be an internal dispute that the US has no business getting involved in can appear to be a simple conflict of good vs. evil from the outside. Histories that are external to American consciousness, when they are acted out or avenged in real time, do not reveal their depth to our media or intelligence agencies. Here again, President Washington provides wisdom:

“Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter without adequate inducement or justification.”

Despite my awareness of the complexity of history and geopolitics (which is another way of saying my awareness of my infinite ignorance) as well as my strong non-interventionist leanings, I am still sympathetic to the notion that the US must treat Russia with an exceptionally strong level of distrust. I can even rationalize our massive military presence blockading what was once the epicenter of the Soviet Union. The map I have created below (and I apologize ahead of time for my computer graphics inadequacies) shows Russia, the United States, and the countries/regions surrounding Russia that are occupied by at least 5,000 US troops from a top-of-the-world point of view:

Russia Blockade

Whether you support the Neoconservative tendency towards caution or the Libertarian preference for sovereignty, such an immense military presence around Russia is going to have consequences. These may include, but are not limited to, intimidating military exercises, expansion of territory via brute force, increased centralized control over the flow of information internally, and a greater focus on collecting intelligence from adversaries. It should be no surprise that the Russian government engages in all of these defensive practices.

The counter to this claim could be that the consequences of the US and its NATO allies easing up would be ever worse. One might say that the only reason Russia has been so meek in its hostilities is because of the current robust military presence.

This is a chicken or the egg dilemma that I cannot solve, but, for the sake of argument, I will give the benefit of the doubt to the neocons and concede that western military might in some form is needed to keep Russia at bay. Accordingly, we must accept the consequences of this choice, one of which is Russian intelligence agencies seeking information and causing disruptions, i.e. their involvement in the 2016 US election.

From what I understand, the extent of Russia’s “meddling” in the 2016 US election does not amount to much. Based on the latest indictments brought by the Mueller investigation, Russian military intelligence operatives may have tried to hack the DNC’s server to expose information about Hillary Clinton. Previous indictments allege that Russians may have purchased Facebook ads aimed at sowing discord within the American public (not simply backing Donald Trump for president, as many lazy and/or biased media outlets continue to assert).

On hacking, I am not convinced that the Russians are responsible. As the race in the Democratic Party between Hillary Clinton and Bernie Sanders was extremely divisive and contentious, it would be unsurprising to find out that various pro-Bernie members of the DNC with access to various servers decided to leak damaging documents about Clinton and her campaign. The motivation makes sense, and so do the logistics. It would have been far easier to get inside and download files at close proximity than from Russia (or, for that matter, Romania).

Patrick Lawrence, in a summary of a memo released by Veteran Intelligence Professionals for Sanity (VIPS), writes in The Nation:

“On the evening of July 5, 2016, 1,976 megabytes of data were downloaded from the DNC’s server. The operation took 87 seconds. This yields a transfer rate of 22.7 megabytes per second.

“These statistics are matters of record and essential to disproving the hack theory. No Internet service provider, such as a hacker would have had to use in mid-2016, was capable of downloading data at this speed. Compounding this contradiction, Guccifer claimed to have run his hack from Romania, which, for numerous reasons technically called delivery overheads, would slow down the speed of a hack even further from maximum achievable speeds.

“What is the maximum achievable speed? Forensicator recently ran a test download of a comparable data volume (and using a server speed not available in 2016) 40 miles from his computer via a server 20 miles away and came up with a speed of 11.8 megabytes per second—half what the DNC operation would need were it a hack.”

This forensic evidence combined with Occam’s Razor makes it difficult for me accept the accusation of Russian hacking at all, no matter how many US intelligence agencies say otherwise. I am not saying that the Seth Rich conspiracy theory is likely to be true, but I find it equally as persuasive as the Russian hacking theory.

The indictments of the Russian operatives accused of hacking the DNC server will not result in extradition or trial, so the accusations will never be tested in a court of law. And some of the most fundamental pillars of reason, liberty, and the Bill of Rights dictate that we cannot accept claims ad verecundiam. In fact, it is assertions from those in power, like the FBI and NSA, we must cast the most doubt upon. The indicted Russians are not guilty until proven guilty beyond a reasonable doubt. It would be nice to have civil libertarian organization like the ACLU actively reminding us of these things, but identity politics and Trump hatred have resulted in many such groups losing their way.

Beyond all this, the documents released by Wikileaks provided the public with more truthful information, which is most certainly a positive development for the democratic process. For those who purport to care about an informed public determining their destinies via the vote, it would be quite hypocritical to claim otherwise.

Even if it were irrefutably the Russians who hacked the DNC server, the US has no moral high ground when it comes to intervening in foreign elections (or intervening militarily for that matter). The map below highlights the nations that have faced election interference from the US since the end of WWII (a total of at least 80 instances):

Bringing these facts to light in the current climate can result in accusations of treason as Senator Rand Paul has been subjected to. While this is to be expected when it comes to warmongering neoconservatives, hearing it from self-described Liberals has a chilling effect. This sort of with-us-or-against-us, pseudo-Patriotism is far more reminiscent of Nazism than the enforcement of immigration law.

To once again be extremely generous to the opposition, let’s accept three premises:

1) That the US must take extreme measures to contain Russia

2) That Russia directly hacked the DNC server at least partially as a means of promoting Trump’s campaign

3) That the US does not have to practice what it preaches in terms of respecting the right to self-determination of foreign peoples

Even with all of this accepted as fact, there continues to be zero proof that Russian “meddling” changed anyone’s vote. And there are monstrous hurdles one must overcome to prove the positive claim that Russia successfully influenced the 2016 election.

The first is that the amount of money Russia allegedly spent on influencing the election is a drop in a bucket at the bottom of a massive sea of campaign financing and media coverage. Unbiased America illustrates the incredible disparity between Russian spending and other spending in the image below:

And even without juxtaposing the amounts spent to influence the election, there is no scientific proof that voters can be persuaded via campaign contact or advertisements in the first place. In a study published by Stanford University’s Graduate School of Business in 2017, researches concluded that “the best estimate of the effects of campaign contact and advertising on Americans’ candidates choices in general elections is zero.” In other words, if you are looking to alter someone’s vote, it is going to take more than slogans, attack ads, and memes to do so.

I imagine that the way to get voters on your side is to stump for policies they prefer and to create some kind of unified identity. Trump ran on making America great again, draining the swamp, defeating the establishment, protectionist economic policy, restricting immigration, non-interventionism, lowering taxes without lowering welfare spending, and owning the libs. I imagine this formula is what put him over the top, not these crude supposedly Russian-made memes:

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To sum up, any genuine hysteria over Russia’s involvement in the 2016 election is misguided. There is no reason to believe Russia affected the US election in any way of their own volition, nor that they broke any laws. Freedom of speech is a human right, not one reserved for everyone except those who have some distant connection to the Russian government. Any attempts to impact the election were impeded by human nature and far greater influences. And Russian meddling in US affairs is a small price to pay for containing them (or, in my opinion, bullying and threatening them).

What should be of far greater concern to all Americans are reactions to the Trump-Russia narrative by individuals, the media, and especially the US government. Sanctions against Russia will harm the Russian people and strengthen it’s government. Already suffering from a lackluster economy, sanctions will further thin out their opportunities. On a global scale, sanctions and other barriers to trade create an invisible domino effect that hits sectors of economic activity around the world too. Growing economic anxiety and economic hostility from NATO combined with a global media that paints Trump as Russia’s lapdog will inevitably guide the Russian people deeper into the protecting arms of Vladimir Putin.

Many members of the public and in congress have called for increased regulation of the internet and social media as a way to prevent Russia from “meddling” in future elections, a dangerous undermining of free speech and expression no American should tolerate.

Instead of making peace and harmony with Russia more difficult, we should accept the minor consequences of containing Russia, or be done with NATO and leave Russia be. The men who fought off a bullying foreign nation to found the United States of America would have preferred the latter option.

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It’s Time to Calm Down about Russian Meddling