Wednesday, May 07, 2014

Antonin Scalia and Kesha Rogers might be related

They certanly have a lot in common.

-- First: What's wrong with Fat Tony?

Supreme Court Justice Antonin Scalia made what UC Berkeley law professor Dan Farber called “a cringeworthy error” last week: he got the meaning of an opinion he cited exactly backward. Worse still — the opinion he misread was his own. As Farber explained:

Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted. This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.

There is a broader context for Scalia’s blunder, which has at least two troubling faces. First is the overall incoherence (one might even say mendacity) of Scalia’s judicial philosophy, as another leading conservative jurist, Seventh Circuit Court of Appeals Judge Richard Posner, argued in a scathing 2012 book review of “Reading Law: The Interpretation of Legal Texts,” which Scalia co-authored with Bryan A. Garner.

Second is the bubbling over of that incoherence into intemperate behavior, such as recent remarks that could be construed as invitations to treason. (In one instance he told a student the income tax was constitutional, “but if it reaches a certain point, perhaps you should revolt.” Another instance seemed more like a sarcastic remark.)

Scalia is very likely suffering the early stages of dementia (what is more commonly called Alzheimer's disease, and used to be called senility).  I'm not  a doctor, of course, but I have witnessed the onset of the decline -- and had enough conversations with doctors enough times -- to recognize the initial symptoms when I see them.

It's not yet time for him to resign, but it is time to have a discussion about when an intervention might be necessary.  And as closer observation warrants, the time to intervene hastens.

Scalia is 78 years old (Justice Kennedy is 77; Justice Ginsberg, a rare 6-year survivor of pancreatic cancer, is 81).  SCOTUS justices do go on to productive lives if they retire from the Court.  Former Justice John Paul Stevens, 94, recently gave eloquent testimony to a Senate committee on campaign finance law.  So it's not a question of age as much as it is of cognitive ability.

Perhaps someone close to Scalia, in order to avoid further embarrassment, will talk him out of trying to outlast Obama's remaining two years -- or for that matter, cheerleading during an impeachment proceeding if/when the GOP takes the Senate in November.

-- Yes, I used the I-word.  It's not that far-fetched, my partisan Democratic friends.  Two words: Kesha Rogers.

Have you forgotten that she led the polling ahead of the primary election?  She barely made the runoff, so it's probably unlikely that she defeats the wealthy former Republican, David Alameel, later this month.  But it's worth noting that her fundraising has run more than double Dr. Alameel's.  I do not think, after having been nominated by Democratic voters in CD-22 twice, and with all of the free statewide and national media she has gotten, that there are a plurality of Democrats across the state who do not understand at least some of what she is all about.  Assuming your base voters are actually this ignorant is a stretch too far for me.

On the other hand, and as H. L. Mencken said, nobody ever went broke doing so.  Jim Hogan, the top Democrat in the race for Texas agriculture commissioner, has also noted (paraphrasing) that Democrats have a phone and a computer.  They might even use them frequently.

(Ugh. I just paired the wisdom of Jim Hogan with that of H. L. Mencken. I feel depressed now.)

Yet -- and you must for the moment overlook the fact that she would have to get elected in order to help bring an Obama impeachment trial to reality -- if she were on the November ballot, the Tea Party faction that opposed John Cornyn so strongly (well over a third of GOP primary voters just two months ago)  would have a rather humorous dilemma:

-- vote for Cornyn the RINO?

-- or vote for the black Democrat who wants to impeach Obama?

That is some serious cognitive dissonance for a conservative Republican.  But it also assumes they would be capable of such complex thought.  Let's not debate which of the two parties' core voters are more stupid, at least for the moment.

If you accept the premise that Democrats just don't know about Rogers or what she stands for, then what is the value of working so hard to motivate even lower-information non-voters to register and turn out?

This is not intended to be a criticism of Battleground Texas' monumental and worthy efforts.  I simply want to note some contradictions in logic.  Must Democrats do all the thinking for the vast majority of Texans who cannot be bothered to vote at all, much less in non-presidential years?

Some would say 'if they want to win, yes'.  I respect that.

It's certainly conceivable that so many Texans might be this ignorant.  It's also possible that they just don't care.  They don't vote because they don't care who wins, who rules, who makes the laws and the judicial appointments and rewards their supporters with ever more taxpayer money no matter how corrupt  it appears.  They might simply think there's no difference between Democrats and Republicans, or at least that there's not enough of a difference to make a difference.  The small number of voting Texans who don't vote for one of the two major parties, about 5% give or take, provide some reinforcement for this notion.  These Texans vote, but are not confident in the representation they have historically received from either the Democtatic or the Republican Party, AND believe that their vote -- no matter the outcome of the election -- still has meaning and impact.  That's a fairly high bar, intellectually speaking; many Texans who do vote think that a vote for a "third" party is a wasted one... even if they mostly disagree with the D or the R's candidate or platform.  This is "lesser of two evils" thinking, and is simply unsophisticated.  Update: Note Ross Ramsey's article today at the Texas Tribune: "Minor Parties Still Matter, Even If They Lose".

Certainly there are sheeple who vote who do no research into the candidates, who cast a straight ticket, or worst of all, outsource their thinking to a political action committee and carry a slate card with them to the poll.  My contention is that not all voters are this ignorant, and furthermore that a majority of non-voters are not this ignorant, either.

They could possibly be ignorant, or they might be too busy trying to put food on their families.  They might be too tired to think about politics, civic issues, etc., at the end of a 14 hour-day at two jobs. It might be all they can do just getting their children fed, loved a little, and then fall into bed exhausted in order to get up and do it again tomorrow.  And do that six or seven days a week, just to keep their heads above water.

It might also be possible that some of these Texans are smart enough to understand that Barack Obama -- and yes, even Wendy Davis -- aren't doing enough to help them better their lives or address the things they are concerned about.  That might be why they don't vote.

With that in mind, is David Alameel really that much different from Kesha Rogers to these Texans? 

No matter what Alameel says about himself or what others say about him, he is IMO the last of the Mohicans; an actual moderate Republican who has been pushed out of the GOP by their extremist factions.  He's also pro-life by deed: he serves on the board of a Catholic charity that contributes to a "crisis pregnancy center" in Dallas.  You know, the ones that counsel pregnant women to keep their babies.  That's not his only personal "liberal" hypocrisy, as we know.  His conversion from R to D comes just a few years after he wrote several large checks to both John Cornyn and Greg Abbott, not exactly the most moderate of Republicans (no matter what the Tea Party thinks).  And let's not ignore that Wendy Davis endorsed Alameel over a fine and qualified progressive candidate named Maxey Scherr in the primary.  Not because he was the best choice for Democrats, as Davis said, but because she needed him to write HER the big checks this year.

Texans were smart enough to figure that one out.

It might be that some Texans who didn't vote in the primary, aren't voting in the runoff, and won't be voting in November understand exactly what they are not voting for.  But like everybody else, from journalist to pundit to political scientist, I have no idea how many Texans like this that there are.

However large or small their number, these Texans -- Democrats, Republicans, Libertarians, Greens, independents, and all of their potential voters, as well as all of the confirmed non-voters -- might not be all that stupid.  That's all I'm suggesting.

If you buy that, then you're left with the conclusion that something could be dysfunctional in our body politic.  Something might be wrong with our democracy.  It might not even be a democracy at all any longer, in point of fact.

Given that, it might be a little easier to understand why so many Texans -- so many Americans -- do not vote.  The real question is: with so many people passively or aggressively refusing to participate... what comes next?  If it's not democracy any more, but it's not quite oligarchy... what is it?

If one party is locked in to ruling Texas -- the same can be said of Democrats in California and the northeastern states -- and one party might be locked in to the US House of Representatives, and possibly even the White House as well, is it just going to be partisan gridlock for the foreseeable future?  Is what we have had for the past ten, fifteen, perhaps twenty years essentially the same thing we will continue to have for many years to come?  Is it any wonder, then, why the large majority of people are disillusioned by and uncoupled from the process?  And is that by design -- a form of top-down, oligarchic influence in and of itself?

How best to motivate those who are apathetic to a place where they care enough to participate.  The hardest of questions to answer.

Update: We could give "NOTA" -- none of the above -- a whirl.

As it stands, our system is great for the Democratic and Republican Parties, who happily maintain the fiction that all Americans can be served by our two enthusiastically pro-business parties. But it’s a system that’s pretty crappy for everyone else. Why can’t I say so with my vote?

Who's with me?!


Gadfly said...

Excellent piece, all around.

Per the numbers on fundraising, since it's paywalled, I don't know what the details are. Maybe some of it is GOP donors playing spoiler? However, at least part of it has to be Dems who either aren't ignorant or have no excuse for being ignorant.

Would better black Dem candidates help? We've talked about state senators with no backbone, or else, with Dallas or Houston non-senatorial "pies" to manage outside the Lege.

PDiddie said...

Relevant excerpt:

""Perhaps more surprising, Rogers took in $53,366 in personal donations through the end of March, more than double the $23,794 Alameel received. She also got $5,000 from the LaRouche Political Action Committee".

I got a handful of explanations about these numbers in a backchannel discussion, that can be basically summarized as 'people didn't know what kind of person they were donating to', and 'people aren't going to give $50 or $100 to somebody who's already wealthy'.

As previously posted, I just don't buy the former, and if the latter is accurate, then Alameel doesn't have good people running his campaign who understand the optics of her raising more than twice as much as him, from smaller donors.

It would be fairly quick and very easy for his friends to overcome the perception that he's just going to buy his way to the nomination.

As for "better black Dem" candidates? I can't go there. We both wrote posts about Rodney Ellis and Royce White running for this office last fall. Neither did for their own reasons. There are plenty of excellent African American elected officials in Texas who could run for statewide office (and one is this year: Steve Brown, for RR commission). Perhaps, like the Castros and Annise Parker and so many others, they're biding their time waiting on the demographics to finally shift.

That's either going to be a longer wait than anybody thinks, or else somebody is going to catch the wave and leave a bunch of aspiring politicos standing on the beach watching.

Greg said...

1) Scalia's error is of the same sort made by former Justice John Paul Stevens. Indeed, it may be that Scalia relied on the erroneous statement by Stevens.

2) When you consider the popularity of Tim Scott, Herman Cain and Ben Carson among Tea Party folks, the concept of them voting for a black person shouldn't be difficult for you to grasp -- especially given that the objections of the overwhelming majority of Republicans to Obama has nothing to do with his race.

3) Even though I'm a Cornyn backer who endorsed him early, I might consider voting for Kesha in the general election just to watch the outpouring of racism that would come from the Democrats. I can see the headlines now -- "Democrats Refuse To Allow Black Woman To Caucus With Them", "Democrats Refuse To Give Black Woman Committee Assignments", "Democrat War On Black Women Continues", etc.

PDiddie said...

One of Greg's more entertaining submissions, folks.