Blue Sunday: It’s Midnight in America
On the Eve of Independence Day, Who Does America Stand for in 2018?
Donald Trump has not shied away from any of his campaign promises during the first eighteen months of his administration. That would actually be an admirable characteristic if his promises weren’t littered with inhumanity, racism and a promise to return to a trickle-down tax policy that twice failed catastrophically. To this day, despite nobody believing him and all other parties involved denying it, he still clings to his most ridiculous claim — that Mexico would pay for a massive wall along our shared border. Unfortunately for most of America, he now has a nearly unstoppable path to fulfilling one of his more frightening pledges: appointing enough Supreme Court justices to overturn the landmark Roe v Wade decision.
During the third and final presidential debate, then-candidate Trump was asked by moderator Chris Wallace if he wanted to see the court reverse Roe v Wade. And there was no ambiguity in his response:
“Well, if we put another two or perhaps three justices on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.”
When over 137 Million Americans stared down their ballot in 2016, each and every one of us knew that the next president would fill at least one Supreme Court vacancy. Breaking with over two centuries of precedent and shirking his Constitutional duty, GOP Senate Majority leader Mitch McConnell refused to so much as allow a hearing on President Barack Obama’s March 2016 nomination of Merrick Garland to fill the vacancy following the sudden death of Justice Antonin Scalia. Throughout the spring, summer and autumn of the election year, there was no hiding from the fact that the next president would fill a Supreme Court seat.
Given the paralyzing shock of Trump’s electoral college victory, and the knowledge that his eventual nominee Neil Gorsuch would be merely replacing the uber-conservative Scalia, outrage over the co-opting of this spot on the bench was muted in retrospect. It wasn’t truly until the end of the 2017-2018 term that concluded this week where it was realized that Garland could have been a swing vote on issues such as gerrymandering and workers rights. But the preeminent human rights results from landmark decisions — the right to control our bodies and to marry who we love — were not altered by the Gorsuch con job, as Scalia had already opposed both.
That changed by the end of the week.
Kennedy was, for all intents and purposes, THE swing vote.
The announcement that Justice Anthony Kennedy would be stepping down at the end of July has sent shockwaves throughout the country. With Trump announcing that a replacement will be nominated by July 9th, and McConnell — who already went “nuclear” by eliminating the filibuster to confirm Gorsuch — promising a confirmation hearing in the early fall, Democrats are all but powerless to stop Trump from nominating a neanderthal conservative that would make Scalia look like Ruth Bader Ginsburg.
The Supreme Court, as presently constituted, has four conservative justices along with four liberal ones. High-profile, divisive cases have routinely been decided by a 5-4 vote for the entirety of Chief Justice John Roberts’ tenure, as well as the latter part of his predecessor, William Rehnquist’s reign. Kennedy was, for all intents and purposes, THE swing vote.
Make no mistake, he was hardly a friend to progressive causes. Kennedy was the deciding vote in cases such as Shelby County v. Holder — which struck down key provisions of the Voting Rights Act, District of Columbia v. Heller — which struck down a ban on handguns, and perhaps most notoriously, Citizens United v. Federal Election Commission — the watershed decision that struck down laws limiting corporate and private campaign contributions.
And just this week he was in the 5-4 majorities that upheld Trump’s travel ban and decimated the abilities of labor unions to raise money,
But Kennedy was also the deciding vote on same-sex marriage twice. First in United States V. Windsor, striking down the 1996 Defense of Marriage Act, and more prominently in Obergefell v. Hodges — which extended the guaranteed recognition of same-sex marriage to the entire country.
And while Roe v. Wade was decided more than a decade before Kennedy was appointed, he was – again – the 5th vote in the majority which upheld Roe in 1992’s Planned Parenthood v. Casey.
Those two pillars of freedom are officially on borrowed time now.
There is no legal, constitutional or procedural path to stopping Trump from appointing (and the Republican Senate from approving) a conservative justice who will strip both of these rights the minute he or she is given the opportunity.
Slate’s Mark Joseph Stern recently declared Kennedy’s departure to be “The End of Roe“. In his well-thought-out and disturbingly realistic nightmare scenario, Stern outlines how not only how a constitutional right to an abortion will be denied, but a starker, more dystopian plan to enact a federal ban that would criminalize the procedure in even the bluest of states:
- Some state (Stern fingers Arkansas as already having a plan in motion) will enact an abortion ban.
- The new court, with Trump’s Kennedy replacement, will uphold the ban.
- Republican-controlled state houses will quickly follow suit, banning medical abortions.
- Blue states will pass their own legislation, guaranteeing a woman’s right to choose.
- A GOP-held Congress, with a Republican president, will then pass a federal abortion ban.
- Those Democratic states will challenge a federal ban, but the court will rule that there is no constitutional right to an abortion.
So even though Trump went out of his way to say if Roe is overturned the decision to ban abortion will go back to the states, that’s never been the end goal of the Federalist Society or any conservative judicial organizations that have been feeding the last two Republican presidents candidates for the bench.
And the same set of events can simultaneously be carried out to eliminate the right to same-sex marriage. Aside from the heartbreaking indignity of the possibility, we could also lose the rights and benefits attached to marriage. In the not-too-distant future, we may once again find ourselves in a country where a man is unable to visit his dying husband in the hospital, or a woman can longer carry her wife on her insurance policy.
Hope Doesn’t Live Here
Bundle this with, as mentioned above, the earlier decisions to strike down parts of the 1965 Voting Rights Act and to uphold Trump’s “travel ban” intended to keep citizens of predominantly Muslim countries from entering the country and the picture becomes clearer. Combine the judicial actions — both achieved and to come — with the executive actions taking place at our Southern Border and the egregious “tax reform” the extreme right-wing agenda is finally in full view for all to see.
All of this is taking place in a country where we have yet to solve the crisis of extra-judicial killings of unarmed people of color– or how to stop our lambs from being slaughtered in school.
As the nation prepares to celebrate her 242nd birthday, we are no longer worthy heirs to E Pluribus Unum. The spirit of our founding documents charged us with the responsibility to find the more perfect union, but we are closer than we have ever been to dereliction of duty. When America was founded, she granted full agency to white landowning males. Everyone else had to fight, bleed and sometimes die just to get close to the equal protection under the law that the founding fathers guaranteed themselves. It has been slow and long, but not too long ago the mountaintop was in view.
But hope doesn’t live here anymore. When the rights of so many can be decimated by the powers of so few, do the dreams and ideas that so many of us learned in our formative years even exist anymore?
It’s Midnight in America.
NOW THAT YOU MENTION IT
•There is an “Uncivil War” brewing in America. Don’t get fooled into thinking this is just normal political discourse focused on minor disagreements. I wish I could be civil in these times. I wish I believed that reason and levity could carry the day. But they can’t. In normal times, we could respectfully disagree. These are not normal times.
We are a nation at war. A very uncivil, civil war, one for the very soul of what this country stands for. When kids are being ripped from their parents, when hate groups, emboldened by a clearly racist Commander-in-Chief, are exploding from coast to coast, when corruption at the highest levels of our government has blown past levels never before seen, when a craven, limp-dick Republican congress is unwilling or unable to engage, when all the institutions that our Founders created so that maybe, just maybe, our fragile and noble system might survive are being shredded as to the point of being unrecognizable, forgive me that I might shed zero tears — not one — for Sarah Fucking Huckabee Sanders.
•The president calls the free and open press “The Enemy of the People”. A right-wing pundit calls for the execution of journalists. 5 brave journalists were gunned down in Annapolis while doing their job. Hopefully, this tragedy will awaken all of us to stop taking this right – guaranteed in the constitution – for granted. Stand Up for journalism.
I don’t like when I wake up and read the Yankees lost in extra innings. But that doesn’t make it “Fake News.” There is a scary misunderstanding about what constitutes a “fact” in Trump’s America.
Trumpism already controls our three branches of government. We can not afford to let him take over the Fourth Estate.
•A sprained Achilles kept me from marching in New York yesterday. But I could not be prouder of the hundreds of thousands of Americans who showed up in all fifty states to protest the cruel and inhumane practice of family separation and detention. If and when the federal government finds itself in more reasonable hands, I think the next major memorial or monument on the National Mall should be dedicated to the most important American in our history: the peaceful demonstrator. From the abolition of slavery through outrage over baby jails, The Protestor has been our conscience.
•Forget about the fact that Trump took a phone call from a comedian pretending to be Senator Bob Menendez (D-NJ). Incompetence and unprofessionalism no longer resonate when analyzing this administration.
What is peculiar and newsworthy, however, is that Trump congratulated the Democrat on NOT being found guilty of corruption charges. Menendez was not acquitted, mind you, his trial ended in a hung jury and the prosecution declined to retry him. Trump thought he was treated “unfairly”.
Would love to see conservative media take a deep dive into that one.
WHAT WON TWITTER THIS WEEK?
This is not a copout, there were roughly 50 tweets I bookmarked for this space this week. But it didn’t feel right to group anything or anyone else with the importance of this message. On behalf of the tens of millions of Americans who cherish and trust the concept of the free press, thank you for all that you do:
Tomorrow this Capital page will return to its steady purpose of offering readers informed opinion about the world around them. But today, we are speechless. pic.twitter.com/5HzKN2IW7Q
— Capital Gazette (@capgaznews) June 29, 2018
Songs Of Freedom
Building the ultimate #Resistance playlist, one week at a time. I’m always up for discovering new protest songs, if you have a recommendation, I’d love to hear it!
Our first user submission! This comes from loyal reader Richard in Philadelphia! And rather appropriate given the gas lit discussions about the responsibility to be “civil”.
8 songs on our playlist so far, that’s more than a Pink Floyd CD!…
Till next Sunday, my friends!
Questions, Concerns, Recommendations or Recipes? Shoot me an email at [email protected].