Monthly Archives: January 2022

Point of View Columns

Thank You Justice Breyer

As a matter of full disclosure – I was a student of Justice Stephen Breyer at Harvard Law School a half century ago. He was a great professor and I have admired his career as a jurist including his 27 years on the United States Supreme Court.

As a matter of further full disclosure – For almost all of the past year I have been restraining myself from writing an open letter to Justice Breyer that was going to amount to a primal scream. Ever since Joe Biden was elected president it was clear that Justice Breyer needed to resign so as to give President Biden an opportunity to select a younger person who could at least try to hold the line against the protoconservative Supreme Court majority.

The specter of the Ruth Bader Ginsburg succession debacle hangs over the land as that Supreme Court majority is now hard at work eviscerating and obliterating so much of the progress that has been made during the past half century including civil rights, environmental rights, criminal justice, women’s rights, voting rights and gender equity. And it just didn’t have to happen that way.

If – a very big IF, Justice Ginsburg had resigned and given then President Obama the opportunity to appoint a like-minded successor (much as Trump promised Supreme Court Justice Anthony Kennedy) that Obama nominee would have joined Justices Breyer, Kagan and Sotomayor as a firewall against the then unlikely possibility of Donald Trump nominating justices to the highest court in the land.

But she didn’t resign because she JUST KNEW that Hillary Clinton was going to be the next president and she would have plenty of time to decide when she would retire. Of course as it turned out she had to try and outlive the Trump presidency and we all know how that worked out – she almost made it. Almost.

There is no doubt that this specter had to be on the mind of a man of such high intellect. His delay in retiring may have been based on his belief that the principles of nonpartisanship on the Supreme Court should rule his decision – and nothing else. But clearly principles don’t mean a thing if the other side doesn’t believe in them.

Perhaps when Mitch McConnell announced that if the Republicans assume control of the Senate in 2023 that he would make sure to block any Biden appointment to the Supreme Court for the remaining two years of his presidency Justice Breyer realized that he had no choice but to do the honorable thing and make sure that there are at least three justices on the Supreme Court who actually believe in justice and not advancing a sociopathic sociopolitical vision regardless of the facts or the law.

We may never know Justice Breyer’s inner thoughts. But it really doesn’t matter how he came to the right decision in these times of turmoil and institutional unease – results are all that matter.

So THANK YOU JUSTICE BREYER!

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Point of View Columns

Midnight in America

The sun may be shining but let’s be clear. It is midnight in America.

The concatenation of malign intent, purposeful stupidity and the toxic mixture of hate and nihilism have combined to make this country the victim of events and forces that should not be the danger that they clearly have become.

Let us count the ways –

First – the continued denial of the validity of the 2020 election has had a possibly irreversible effect on the democracy of this country. It is one thing not to agree with anything/everything about a president (remember “Not My President” posters referring to Trump?). It is quite another thing to consider the president to be illegally elected.

Because if that is the basic premise, there are no limits to the damage and violence that can be perpetrated in an effort to correct this imagined wrong.

Second – Since the Shelby v. Holder decision in 2013, this column has had numerous comments on the malicious and delirious attacks on Black voting rights empowered by this decision. The erosion of Black voting rights has been obscured by the voter turnout in 2020, but there should be no illusion that this erosion has been going on for almost a decade.

Now, thoroughly emboldened by Trump’s Big Lie, states are gerrymandering, restricting, eliminating and disabling various strategies that have been used to get Black people to be able to exercise the franchise.

This is only getting worse, and the 2022 election will bring to light the most egregious aspects of the New Jim Crow.

Third – The Trump Supreme Court (3 of the 6 right wing faction of the Court are Trump appointees) are providing a lasting legacy of The Man Who Should Never Have Been President. Voting rights, abortion rights, environmental protections – even mask mandates in the middle of the worst pandemic in over a century – have all been on the chopping block. And these justices are just getting warmed up.

Unlike electoral results, we will be living with the impact of this right wing of the right wing Supreme Court for decades to come.

Fourth – Like the frog in warm water who doesn’t realize that it is being cooked slowly, Democrats and particularly the progressive wing, are acting as if they conduct politics as usual rather that fully comprehending that this is an existential moment in American history.

If the Trump-infused Republicans take control of the House and the Senate in 2022 and the presidency in 2024, the conversion of this nation into its race-based and anti-egalitarian past will happen with lightning speed.

Why the Democrats don’t fully understand this existential threat brings to mind the farmer who smells some smoke in the barn but does not think that it is important enough to call neighbors and starting priming the pump.

Historians in the future – if they are allowed to write and publish such things – will look back on the steadfast refusal of Democrats and Progressives to see the coming tsunami of proto-fascist and racist policies when the signs were perfectly clear and wonder why.

In closing, it is always important to be positive and stay positive and believe in better days. But it is also important to keep eyes and ears open and when the other side is telling you what they are going to do to disenfranchise and disempower you – believe them.

It may not be midnight in America but the dawn seems further and further away with every passing hour.

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