Sunday Morning Quarterbacking: The Kavanaugh Edition

It’s all about Sunday morning quarterbacking, isn’t it?

(Photo Credit: Getty /Images)

Optics for Republicans

Trump wins… on several fronts: his nominee has been confirmed; the GOP rallied behind his nominee and thus by absentia, the party rallied behind Trump, just four weeks before the midterm elections.

McConnell, again, looks like a master tactician and legislator… Henry Clay, Sam Rayburn, Lyndon Johnson, Tip O’Neill, Newt Gingrich, and Mitch McConnell?

See:

https://www.senate.gov/artandhistory/history/common/briefing/Famous_Five_Seven.htm

In Nevada, in perhaps one of the most closely watched Senate races, Democratic Congresswoman Jacky Rosen is now leading Republican incumbent Dean Heller in the polls:

  • CNN* 9/25 – 9/29 693 LV 4.6 47 43 Rosen +4
  • Gravis 9/11 – 9/12 700 LV 3.7 47 45 Rosen +2
  • Suffolk* 9/5 – 9/10 500 LV 4.4 42 41 Rosen +1

[Of course, that makes me wonder why Heller wasn’t invited into the meetings with Collins, Murkowski, and Flake; or why he wasn’t more targeted by the liberal media, activists, and Senators. Heller is hardly the most conservative and ideological member of the GOP Caucus: according to Senate Report Cards, Heller is the 36th most conservative U.S. Senator out of a possible 52/53 (the ranking was conducted before Sen. McCain’s death; McCain was ranked 45th).]

To Democrats, Mitch McConnell’s insistence on a procedural vote on Friday 10/5/18 and his pre-announcement of that vote before the supplemental FBI investigation was even concluded, smacks of political disdain for the investigatory process and a rush to judgment (after all, the final vote was essentially a straight party vote).

To Republicans, Brett Kavanaugh is a victim of slander, liberal conspiracies, and collusion between the female accusers… Each incident seemingly brought to light at the last possible moment in an apparent and orchestrated attempt to slow down the process to get the final floor vote closer and closer to the November midterms. Yet, in terms of optics, the all White-Male Republican members of the U.S. Senate Judiciary Committee voted to send the nomination of a fellow White-Male to the floor for a full vote. It looks like almost everything Republican have accused Democrats of regarding race warfare and identity politics.

Optics for Democrats

The Democrats look bipolar at best:

First and foremost, the Senate Democrats lost. In particular, Diane Feinstein (CA-D) seems to have lost political points with her GOP colleagues. [And soon-to-be Governor Garvin Newsom is waiting in the wings; he needs Feinstein to hang on, just a little bit longer before he runs for her (lifetime) seat.]

I don’t remember the Senate Democrats fighting for Merrick Garland this aggressively? But, of course, most pundits thought the Hillary Clinton would become the 45th U.S. President so that the fight wasn’t necessarily worth the Senate Democrats’ political capital.

Nor do I remember the Senate Democrats attacking Neil Gorsuch this aggressively? Of course, Gorsuch’s nomination didn’t change the net math of the political alignment of the U.S. Supreme Court, and the Gorsuch nomination process occurred 15 months before Kavanaugh’s nomination process began, almost 19 months before the next election.

Which brings me to my next point: There are two ways to interpret the political theater of the past month or so, and the two lenses are not necessarily mutually exclusive.

First, there is the moral line of thinking. As mentioned in the previous commentary on the Kavanaugh nomination, three successful career-driven women accused Kavanaugh of various sexual inappropriateness, from attempted rape to sexual harassment.

Secondly, there is the political line of thinking. Democrats can be political and moral, just as easily as either party can be political and immoral.

To Democrats, this is an example of why Gorsuch was treated differently; no allegations were made against Justice Gorsuch, whereas allegations were made against Kavanaugh. “Where there’s smoke, there’s fire” argument necessitated further hearings and, at the insistence of Republican Jeff Flake of Arizona, a supplementary FBI investigation.

[To Republicans, the Kavanaugh nomination was treated differently because of the calendar. Each incident seemingly brought to light at the last possible moment in an apparent and orchestrated attempt to slow down the process to get the final floor vote closer and closer to the November midterms.]

There is a Difference between Partisanship and Political Ideology

Of course, the partisan division of the Senate is 51-47(2), so within the context of the exercised nuclear option in 2017 and party cohesion, the Democrats were always going to lose. A lot of their political strategy was based upon the new Gang of Six and the tightness of the calendar.

But disturbing to me was the rhetoric from Republican Senators and the President that identifying the allegations, calls for supplementary hearings, and supplemental investigations… Senate Republicans and the Trump Administration blamed it all on “The Democrats.” I don’t remember the same ire being directed at the Republican members of the Gang of Six?

Even more disturbing, was Justice Kavanaugh’s usage of the phrase, “The Democrats.”

As I said in earlier podcast, this nomination was always about the new (temporary) Gang of Six: Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and to a lesser extent, Joe Manchin (WV-D), Heidi Heitkamp (ND-D), Joe Donnelly (IN-D). [And, the Gang of Six, didn’t invite Donnelly or Heitkamp to that secret meeting last week, did they?] Heitkamp is likely going down in the November election, Manchin may save his seat, but leave many wondering, why he is a Democrat again? Essentially Manchin and Murkowski swapped votes; the Kavanaugh confirmation belongs to Susan Collins (ME-R).

And, again, in Nevada, in perhaps one of the most closely watched Senate races, Democratic Congresswoman Jacky Rosen is now leading Republican incumbent Dean Heller in the polls. Why was this not more of an issue in the Kavanaugh proceedings?

The Future of Brett Kavanaugh

Pyrrhic victory? For many Democrats, he is now forever tainted. He is the Clarence Thomas of the 21st century. Does he, Kavanaugh, care? Does he attempt a remake of his image? Or does Kavanaugh, as Bethany Mandel (editor of Ricochet) suggests, become more radicalized himself in terms of cases of due process and the presumption of innocence?

In my Op-Ed in the Providence Journal on July 26, 2018, I definitively stated that Kavanaugh was qualified to be confirmed as an Associate Justice of the United States Supreme Court. I firmly believe the President of the United States has the right to nominate his person to the Court. Barack Obama had that right, and Donald Trump has that right too. But that was before the sexual accusations and the apparent perjury before the U.S. Senate Judiciary Committee, as well as the woefully inappropriate display of temperament, particularly toward Amy Klobuchar (MI-D) and Sheldon Whitehouse (RI-D).

Even more disturbing than the rhetoric from President Trump and many Republican Senators who used the phrase “The Democrats” as a swear and explain-it-all for all the evils in the Universe, however, was Justice Kavanaugh’s usage of the phrase, “The Democrats.” The veil of judicial apolitical independence and nonpartisan neutrality continues to be shredded.

The Future of the US Supreme Court

Sad and partisan… Pathetic. This is the ugliness of the so-called nuclear option which both parties had been threatening for years… 

Specifically, the political mess of the Kavanaugh Nomination was created on April 7, 2017, when the Republican-led U.S. Senate exercised the “nuclear option” but its roots lay in the blocking of Merrick Garland’s nomination to the Supreme Court. That’s a fact, not ideological blame. [Neither party is innocent: Majority Leader Mike Mansfield (MT-D) eliminated the ability to halt all proceedings with the introduction of the “two-track system” and, in 1975,  Mansfield revised the Senate cloture rule so that three-fifths of sworn senators (60 votes out of 100) could limit debate, except for changing Senate rules which still requires a two-thirds majority of those present and voting to invoke cloture. On January 25, 2013, Harry Reid (NV-D) changed the Senate rules to prohibit a filibuster on a motion to begin consideration of a bill. No, neither party is innocent, but the GOP desperation to hold on to a 5-4 majority in terms of Merrick Garland, and the even more eager, gluttonous desire to move the court to a solid 5-4 regardless of the cost is the most acute reason that we’ve arrived at this point. In the past three decades, there have only been two nominations which were confirmed by a Senate Majority of the opposite party:

  1. In 1990, the Democrat-led Senate Judiciary Committee reported Republican-nominated Souter out the committee by a vote of 14–3, the Senate confirmed the nomination by a vote of 90–9.
  2. 106. In the 1991 Thomas’ confirmation process, the Democrat-led Judiciary Committee split 7–7 on September 27, sending the nomination to the full Senate without a recommendation. Republican-nominated Thomas was confirmed by a 52–48 vote by the Democrat-controlled US Senate on October 15, 1991, the narrowest margin for approval in more than a century. The final floor vote was: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination.

Both times Democrats confirmed Republican nominees and, in the case of one of those nominations, it could have been filibustered but was not. This is what fuels Democrat ire and accusations of hypocrisy. 

In my podcast on September 15, 2018, I think I made the point, though it is worth reiterating: Eleven justices have been appointed to the U.S. Supreme Court since O’Connor, with a twelfth confirmation and appointment imminent: Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, RBG, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch. Confirmations used to be more unanimous with the exception of Clarance Thomas.

It is also worth noting, that only from 2009–2011 in the 111th Congress did either party have a super-majority. In most other years, the U.S. Senate was split roughly 50-50, plus or minus two to 5 seats. What has happened? We have increasingly politicized the Court, we have nominated more and more ideological candidates to the U.S. Supreme Court instead of nominating people, we’re nominating party. A return to civility in SCOTUS nominations is long overdue.

And the 2018 Midterm Elections

Which is the excited political base(s): The party with the momentum is usually hurt the most in the impending election.

Is it the Blue Wave that cometh?

Or is the upcoming wave For the GOP? By Bryan Dean Wright | Fox News

For Dems or Gop? by Alex Seitz-Wald and Benjy Sarlin

The Recap in Rhetoric

Look at the language: the language from Trump, Kavanaugh, and McConnell was about “Democrats,” Democrats,” and “Democrats.” This was never about “The Democrats,” yet the Right has continuously framed it about the so-called “Democrats” for political expediency.

The Recap in Politics

The vote on Saturday was 50 GOP in favor (with the noted absence of proud father Steve Daines), 1 GOP against, and one Democrat in favor. Straight party blindness on both sides.

This process, ever since the announcement of Anthony Kennedy’s decision to take senior status, was always about the (temporary) new Gang of Six: Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and to a lesser extent, Joe Manchin (WV-D), Heidi Heitkamp (ND-D), Joe Donnelly (IN-D). Really it was about the Gang of Four of Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and Joe Manchin (WV-D). ANd, if you really want to tighten it further, it was always about the two pro-choice Republican women: Susan Collins (ME-R) and Lisa Murkowski (AK-R).

Negative Societal Effects (and hopefully a few positive societal effects as well)

The neotribalism of politics continues… tell me, how many Republicans do you know who believe the accusations against Brett Kavanaugh, or think his apparent perjury regarding alcohol? How many Democrats do you know who believe Brett Kavanaugh is innocent of all the allegations against him and is a victim of partisan games and revenge tactics? Exactly…

Then there is the racial or social status aspect to the debate; if students of all-male Catholic prep schools are just kids and, “boys will be boys” then why do we charge young minority children -or any children- as adults for crimes those children commit?

Then there is the gender aspect of the debate. Honestly, one of the more reassuring details (though to many it seems like a possible hypocritical detail) is that Brett Kavanaugh is the father of two young girls, Liza and Margaret Kavanaugh.

While this is unfair, I really have trouble listening to defenses of Kavanaugh by anyone who doesn’t have daughters, especially men without daughters. As my good friend Dana, oh, let’s call her DKD. DKD, a conservative woman with a daughter and a son said to me recently, “As a mother, it scares the s*** out of me that any girl can come forward and make an accusation like that that makes a boy guilty before proven innocent.”

That’s a real concern. How do we protect the women in our lives from predatory males, how do we educate our boys not be predatory males, how do we encourage women who are assaulted to speak up, while at the same time, protect males from fraudulent allegations? My greatest hope was so eloquently written and spoke by Monica Hesse of the Washington Post. 

I don’t have the answer to all those questions, but those are the questions we should all be asking right now, regardless of political ideology. And those questions must be asked collectively, or the questions become a reflection of neotribalistic bias, in this case, gender bias or at least gender preference. [Off the top of my head, the only issue of similar complexity, in my opinion, is the question of male paternity rights in the face of a woman’s right to terminate a pregnancy.]

[DKD also asked rhetorically: “As an employer, do I not hire women because it may be ‘risky’ and expose the business to more liability?” But that’s another discussion for another podcast.]

What are we to believe? Who are we to believe?

We will never know the truth about the sexual allegations against Brett Kavanaugh. And it will take a career on the Supreme Court to completely understand his ideology. As I concluded in the July Op-Ed, “Who is the real Brett Kavanaugh? We’ll just have to wait until he’s been confirmed and begins his tenure. Ultimately, we won’t really know until he’s been on the court for 30 years — like his old boss, Anthony Kennedy.

 

The Perjury of Brett Kavanaugh

Kavanaugh v. Ford et al.

(Photo Credit: Getty Images)

So… apparently, there was something going on in Washington today?

Any surprises? No… Did we learn anything new? Not really… a minor thing, we learned that Rachel Mitchell was in contact with the Majority Staff of the U.S. Senate Judiciary Committee last week, and not just a couple of days ago as had been implied… but that’s about it, and that’s relatively minor. So what’s going on? What are we to believe?

Facts:

  • So, many people -good people- are asking what the facts are. Less inquisitive people are conversely more partisan and presume to know the facts already of course. But, no, I don’t think any of us know the facts or will ever know the facts. These are the facts, and they are indisputable:
  • The fact is that Dr. Christine Blasely Ford has accused Brett Kavanaugh of sexual assault.
  • The fact is the allegation is from 36 years ago.
  •  Her details about the party are fuzzy, but her details of the alleged assault are specific.
  • The fact is that Brett Kavanaugh has categorically denied the allegation.
  • The fact is that Brett Kavanaugh’s submission to his high school yearbook implies a conquest of women mentality.
  • The fact is that the other person named as being present, Mark Judge has categorically denied the allegation.
  • The fact is that Mark Judge wrote a book about his cavalier and brazen childhood that seems to corroborate the type of party that Dr. Ford describes.
  • The fact is that Brett Kavanaugh has admitted to underage drinking and partying. This has been dismissed by sympathetic media under the disclaimer of ‘everybody does it.’
  • The fact is that Dr. Ford told a therapist of the alleged assault years ago before Brett Kavanaugh was a Supreme Court nominee.
  • The fact is that the relative location of the party, as described by Dr. Ford, is not near the residences of either Dr. Ford or Judge Kavanaugh.
  • The fact is that Dr. Ford has taken a polygraph, administered by a former member of the FBI.
  • The fact is that Brett Kavanaugh has been screened by the FBI six times in his career.
  • The act is that there are at least 6 Levels of FBI background-checks and that not all background checks are equal.
  • The fact is that Dr. Christine Blasely Ford is a registered Democrat.
  • The fact is that Dr. Christine Blasely Ford has put her reputation, anonymity, and (to a degree) her career on the line.
  • The fact is that Judge Kavanaugh is still a U.S. Circuit Judge on the D.C. Circuit Court, regardless of the outcome of the U.S. Senate vote.
  • The fact is that, as Judge Kavanaugh stated today, no allegations were raised in her earlier and very public career.
  • The fact is that the appointment to the U.S. Supreme Court is unlike any other position with the exception of President of the United States.

Optics:

Factual optics

  • If I’m sympathetic to Dr. Ford, I came out of the hearing finding her believable and a sympathetic heroine.
  • I’m adverse to believing Dr. Ford; I came out of the hearing finding her gaps in recollection -of even things within the past two months, to be troubling.
  • If I’m sympathetic to Judge Kavanaugh, I came out of the hearing finding him believable and tragic hero.
  • I’m adverse to believing Judge Kavanaugh; I came out of the hearing finding his absolute denials to be, well just a bit too absolute considering the multiple circumstantial accusations.

Partisan Optics

  • If I’m sympathetic to Dr. Ford, I found the line of questioning by Rachel Mitchell to be a pathetic avoidance of responsibility by the 11 White Men of the Republican majority in the face of the Democratic minority which includes four women.
  • If I’m sympathetic to Judge Kavanaugh, I found the line of questioning by Rachel Mitchell to be an extension of incredible courtesy to a woman alleging sexual assault by a man.
  • If I’m sympathetic to Dr. Ford, I’m wondering why a prosecutor was brought in to ask questions, and I’m wondering why the same prosecutor didn’t question Judge Kavanaugh.
  • If I’m sympathetic to Judge Kavanaugh, I’m wondering why Senator Feinstein had information about Dr. Ford’s allegation and did not inform the full Judiciary Committee immediately.
  • If I’m sympathetic to Judge Kavanaugh, I thought his anecdote about his daughter’s prayers was moving. If I’m sympathetic to Dr. Ford, I believe that is an example of pathos, not ethos or logos.
  • If I’m sympathetic to Dr. Ford, I believe Kavanaugh’s point-by-point refutation of the allegations to Senator Kennedy at the end of the hearing like ‘lawyerese’ and a guilty man’s argument. If I’m sympathetic to Judge Kavanaugh, I thought his point by point response to Senator Kennedy was total and encompassing, sworn before God and Country.

Concluding facts:

The fact is that the appointment to the U.S. Supreme Court is unlike any other position with the exception of President of the United States.

  • Tom Eagleton was a successful US Senator, MO State Attorney-General, and Lt. Governor of MO, but when considered for to be the nominee for Vice President of the United States, his use of electrotherapy to combat depression became public, and he withdrew his nomination.
  • Zoe Baird was a successful lawyer, worked as Attorney-Advisor at the Office of Legal Counsel at the U.S. Department of Justice from 1979 to 1980 and was Associate Counsel to President of the United States Jimmy Carter from 1980 to 1981. Baird had very high profile positions, just as Kavanaugh had as a lawyer in the Ken Starr investigation and later Staff Secretary in the Bush White House. Yet, after being nominated to be US Attorney-General, it came out that Baird had hired illegal immigrants and failed to pay taxes.
  • President George W. Bush nominated well-known and highly regarded Bernard Kerik to become United States Secretary of Homeland Security, but Kerik withdrew from the nomination, after acknowledging that he had unknowingly hired an undocumented worker as a nanny and housekeeper.
  • No one accused U.S. Senator Tom Daschle of misconduct for his 18 years in the Senate, but after his nomination to be HHS Secretary in the Obama Administration, Daschle’s’ failure to report and pay income taxes accurately became known, and he withdrew his nomination.
  • And the list goes on and on… Kimba Wood, Bobby Ray Inman, Hershel W. Gober, Linda Chavez, Andrew Puzder, Ronny Jackson

The fact is that scandals break no matter how many times a candidate or nominee has already been vetted as the candidate or nominee is elevated higher and higher. The argument that Kavanaugh had already been vetted is not a reasonable argument.

I want to make it clear; in my Op-Ed in the Providence Journal July 26, 2018, I definitively stated that Kavanaugh was qualified to be confirmed as an Associate Justice of the United States Supreme Court. I firmly believe the President of the United States has the right to nominate his person to the Court. Barack Obama had that right, and Donald Trump has that right too.

At this point, however, there is too much of a cloud of suspicion. Kavanaugh ought not be confirmed to the Court at this point. Either a full deep FBI investigation should be authorized, and the vote on confirmation in committee and certainly on the floor of the Senate should be postponed, or the nomination should be withdrawn. I do not recall any accusations against Associate Justice Neil Gorsuch during his nomination process, and that seat would have changed the balance of power in the US Supreme Court. The argument that this is merely a smear campaign or Democrats seeking their pound of flesh is illogical. Is there a political angle to these events, absolutely, just as there was a political angle to the Senate Republicans block of the Merrick Garland nomination. Democratic partisanship does not necessarily mean that Brett Kavanaugh is innocent. The Democrats can be playing partisan games, and Judge Kavanaugh may be guilty of some wrongdoing; the two are not mutually exclusive. The Supreme Court is a privileged, not a right.

The Democratic strategy is not without risks; a different nominee might be another Samuel Alito, not a Harriet Miers. A withdrawal may be an ideological loss for the Republicans as well. A different nominee may be, ironically, another Anthony Kennedy and not a Robert Bork. As I concluded in my Op-Ed, “So, who is the real Brett Kavanaugh?” Well, after the confirmation hearings and today’s extended hearings, I’m not sure any objective person knows. I’m not sure we will ever know. Do we want doubts around another member of the Supreme Court? I’m not comfortable with another Clarence Thomas – Anita Hill situation. I’m not comfortable with 11 men pushing through the confirmation of a man, nominated by a man to fill the seat of a man. The optics and lingering doubts are too much for me, though I do believe that President Trump has the right to nominate a conservative to the Supreme Court of the United States.

 

A Return to Civility in SCOTUS Nominations is Long Overdue

(Photo: Public Domain, Library of Congress)

On this day, September 15, 1981, The Republican-led Senate Judiciary Committee unanimously approved Republican-nominated Sandra Day O’Connor to become the first female justice of the Supreme Court of the United States. A few days later, on September 21st, O’Connor was confirmed by the U.S. Senate with a vote of 99–0. (According to Rebecca Loew, Senator Max Baucus of Montana was absent from the vote, and sent O’Connor a copy of A River Runs Through It as an apology. O’Connor became the 102nd Associate Justice of the U.S. Supreme Court.)

Since then, eleven justices have been appointed to the U.S. Supreme Court, with a twelfth confirmation and appointment imminent: Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, RBG, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch.

103. The Republican-led Senate Judiciary Committee reported Republican-nominated Scalia unanimously out of committee. The full Senate debated Scalia’s nomination only briefly, confirming him 98–0 on September 17, 1986.

104. The Republican-led U.S. Senate confirmed Republican-nominated Kennedy on February 3, 1988, by a vote of 97 to 0. Absent from the vote were three Democrats: Paul Simon and Al Gore who were campaigning for the Democratic nomination for US President and Joe Biden who was sick.

105. In 1990, the Democrat-led Senate Judiciary Committee reported Republican-nominated Souter out the committee by a vote of 14–3, the Senate confirmed the nomination by a vote of 90–9.

106. In the 1991 Thomas’ confirmation process, the Democrat-led Judiciary Committee split 7–7 on September 27, sending the nomination to the full Senate without a recommendation. Republican-nominated Thomas was confirmed by a 52–48 vote by the Democrat-controlled US Senate on October 15, 1991, the narrowest margin for approval in more than a century. The final floor vote was: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination.

107. The Democrat-led United States Senate confirmed Democrat-nominated RBG by a 96 to 3 vote on August 3, 1993.

108. Democrat-nominated Breyer was confirmed by the Democrat-controlled US Senate on July 29, 1994, by an 87 to 9 vote.

109. On September 22, 2005, the Republican-controlled Senate Judiciary Committee approved Republican-nominated John Roberts’s nomination by a vote of 13–5, with Senators Ted Kennedy, Richard Durbin, Charles Schumer, Joe Biden and Dianne Feinstein casting the dissenting votes. Roberts was confirmed by the full Senate on September 29 by a margin of 78–22. All Republicans and the one Independent voted for Roberts; the Democrats split evenly, 22–22. Roberts was confirmed by what was, historically, a narrow margin for a Supreme Court justice. However, all subsequent confirmation votes have been even narrower.

110. In 2005, Republican-nominated Samuel Alito was reported out of the Republican-led Senate Judiciary Committee on a 10–8 party-line vote. After a failed filibuster attempt by MA Senator John Kerry, on January 31, the Senate confirmed Alito to the Supreme Court by a vote of 58–42, with four Democratic senators voting for confirmation and one Republican and an Independent voting against.

111. On July 28, 2009, the Democrat-led Senate Judiciary Committee approved Democrat-nominated Sotomayor; the 13–6 vote was almost entirely along party lines, with no Democrats opposing her and only one Republican supporting her. On August 6, 2009, Sotomayor was confirmed by the full Senate by a vote of 68–31. The vote was largely along party lines, with no Democrats opposing her and nine Republicans supporting her.

112. On July 20, 2010, the Democrat-led Senate Judiciary Committee voted 13–6 to recommend Kagan’s confirmation to the Democrat-led US Senate. On August 5th the full Senate confirmed her nomination by a vote of 63–37. The voting was largely on party lines, with five Republicans (Richard Lugar, Judd Gregg, Lindsey Graham, Susan Collins, and Olympia Snowe) supporting her and one Democrat (Ben Nelson) opposing.

113. On April 3, 2017, the Senate Judiciary Committee approved the Republican-nominated Gorsuch nomination out of committee along a party-line vote of 11–9. On April 6, 2017, Senate Democrats filibustered the confirmation vote of Gorsuch, after which the Republicans invoked the so-called “nuclear option”, allowing a filibuster of a Supreme Court nominee to be broken by a simple majority vote. On April 7, 2017, the Republican-led US Senate confirmed Gorsuch’s nomination to the Supreme Court by a 54–45 vote, with three Democrats joining all the Republicans in attendance.

It is worth noting, that only from 2009–2011 in the 111th Congress did either party have a super-majority. In most other years, the U.S. Senate was split roughly 50-50, plus or minus two to 5 seats.

What has happened? We have increasingly politicized the Court, we have nominated more and more ideological candidates to the U.S. Supreme Court instead of nominating people, we’re nominating party. A return to civility in SCOTUS nominations is long overdue.

 

Happy Labor Day

Labor Day; What the heck is Labor Day anyway? I know the banks are closed, and the stock markets too. Labor Day is considered the traditional end of summer, but that’s really September 21st. It used to be the end of summer vacation, but may schools start in mid-to-late August these days. I know! It’s a fashion date! Can’t wear white after Labor Day, right?

On Labor Day weekend, social media is usually inundated with meme’s honoring teachers, law enforcement, fire professionals, etc. For most of us, I suppose the holiday has become thought of as a celebration of public sector workers, or all workers in general. But it’s not. Its neither.

Labor Day is the workers’ movement in the United States and around the world. What? Does that sound socialist or too Communist? I don’t know and, honestly, I don’t really care. Because that’s exactly what Labor Day is: a celebration of blue-collar workers and the solidarity of unionization. Interesting, however, the US intentionally placed our celebration of workers solidarity in September to avoid identifying the holiday with International Worker’s Day which is May 1st every year and has a significant history with the Haymarket Massacre in Chicago and the pan-Communist movement of the late 19th century.

I say I don’t care if the holiday sounds too socialist or Communist because I’m tired of how we seem to ignore or rewrite history. It is a day to celebrate the labor movement, not the general and vague concept of work. Those social media memes I mentioned, notice that professions honored are unionized professions. Again, law enforcement, fire professionals, teachers, and nurses. We usually don’t give shout-outs to doctors, lawyers, and hedge fund managers on Labor Day, do we?

The first Labor Day was celebrated in Oregon in 1887. At the time, as now, it was a recognition of trade unions and the labor movements. It’s a recognition of the workers who took an UNPAID day off work on September 5, 1882, so that nowadays, many of us receive a PAID day off of work.

I mentioned the rewriting and watering down of history? Go to the Department of Labor’s website, and you’ll see no mention of unionization, union-busting, or strikes. You will read a few references to two unions in particular, but the site glosses over the reasoning that unions were necessary in the first place. Indeed, the site begins and concludes with empty jingoistic phrases about the “the greatest worker in the world – the American worker.” Might as well stand while reading the diatribe while placing your MAGA hat across your heart.

If this holiday is about the American blue-collar worker, why is it that the banks, government offices, and financial markets are closed, while Wal-Marts, Chic-Filets, Hobby Lobbys are open. Fun fact, Costco is closed on Labor Day. You’re welcome…

In an era where many are suspect of the government deep state and the liberal media bias, it’s amusing that it’s the Department of Labor’s version of the history of Labor Day is so biased and whitewashed (I wonder if its whitewashed on the warm cycle of the washing machine with all those white-collars?).

For a more honest and raw recollection of the origins of Labor Day, take a look at history.com:

Labor Day, an annual celebration of workers and their achievements, originated during one of American labor history’s most dismal chapters.

In the late 1800s, at the height of the Industrial Revolution in the United States, the average American worked 12-hour days and seven-day weeks in order to eke out a basic living. Despite restrictions in some states, children as young as 5 or 6 toiled in mills, factories and mines across the country, earning a fraction of their adult counterparts’ wages.

People of all ages, particularly the very poor and recent immigrants, often faced extremely unsafe working conditions, with insufficient access to fresh air, sanitary facilities and breaks.

As manufacturing increasingly supplanted agriculture as the wellspring of American employment, labor unions, which had first appeared in the late 18th century, grew more prominent and vocal. They began organizing strikes and rallies to protest poor conditions and compel employers to renegotiate hours and pay. Many of these events turned violent during this period, including the infamous Haymarket Riot of 1886, in which several Chicago policemen and workers were killed. Others gave rise to longstanding traditions: On September 5, 1882, 10,000 workers took unpaid time off to march from City Hall to Union Square in New York City, holding the first Labor Day parade in U.S. history.”

~~~

So, I guess, to me, Labor Day has taken its equal place at the table of hypocrisy with so many of the other watered down and revisionist federal holidays. Sure, we have a wonderful vanilla-ly quaint and boring holiday on January 1st to celebrate New Years Day on the Gregorian Calendar, right? Well, at least its been New Year’s Day in the British Empire and former colonies since 1752, but I digress…

Then we have the other nine federal holidays (one more aside, why wouldn’t we have 12 federal holidays in twelve months, instead of 10 federal holidays in 8 months…) What was I saying? Oh, right, our wonderful other nine federal holidays:

Martin Luther King, Jr. Day, when we celebrate the Civil Rights’ Movement and its leader, even while limiting black suffrage through voter ID laws, George Washington’s Birthday, which isn’t even on his birthday, Memorial Day which most people can’t distinguish from Veterans Day, Independence Day, which isn’t even the day that the Second Continental Congress voted for independence, or signed the Declaration of Independence, our beloved Labor Day that we celebrate even while spreading “Right to Work” anti-union legislation across the country, Columbus Day to honor an Italian who worked for the Spanish to discover the Bahamas, Hispaniola, and Cuba and then proceeded to rape, pillage, enslave, and murder. Great guys, so proud to celebrate a guy who has nothing to do with American history, or if we want to extend his legacy to the United States, I suppose we’re celebrating the genocide of the Native American peoples? In November, we celebrate Veterans Day Part II. Actually, in all seriousness, Veterans Day honors the living veterans and was specifically established on November 11th to replace Armistice Day which ended World War I, whereas Memorial Day was established as a Civil War holiday to honor deceased soldiers. Both holidays are worthy, but I wonder what it says about us as a country that we have two federal holidays about war, why not celebrate December 10th which is recognized internationally as Human Rights Day? Finally, we have the eighth and ninth federal holidays: Thanksgiving Day which celebrates neither the first Thanksgiving (the first actual feast of Thanksgiving in what was to become the United States occurred on April 20, 1598, in the area of present-day El Paso, Texas, when Juan de Oñate offered a feast of thanksgiving for the bountiful food and water that saved his expedition), nor is it the first English colony, that would be Virginia, but for some reason we celebrate the second English colony of Plimouth [sic] and the goodwill of the New England Native Americans, who were then repaid by the stealing of their lands and even enslavement and deportation after King Phillip’s War. And then there’s the final federal holiday of the year, when the country that ratified the First Amendment barring the establishment of any state religion, celebrates the second most important holiday in the Christian religion. But, hey, that’s just my take on the 10 federal holidays of the United States.

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Today is one of those federal holidays. Let’s not lose sight of our history as we water-down the celebration the US labor movement and minimize the history of unions in America. After all, we don’t celebrate Cesar Chavez on Martin Luther King Day, and we don’t celebrate UPS drivers on Veterans Day, nor do we celebrate Moses, Kristna, Buddha, or Mohammed on Christmas Day, so why have we taken Labor Day away from the unions?

Unions are important to the long-term health of the American economy and those who would say otherwise are lining their pockets with disproportionate income. Those would include not just the backers of Right to Work legislation, and the reduction of Capital Gains Taxes, etc., etc., but also the bloated compensation receiving CEOs.

The famous or infamous (depending on your political perspective) Dodd-Frank Act requires businesses to disclose the ratio of CEO pay to median worker pay in their annual proxies. 2018 was the first year that this provision came into force, so what have we learned?

For example, Mattel CEO Margo Georgiadis was awarded almost $31.3 million in 2017. Meanwhile, the median worker at the company earned $6,271. The ratio? 4,987 to 1.

For comparison, At Berkshire Hathaway, the pay ratio is roughly 2 to 1. CEO Warren Buffett makes $100,000. The median worker at his company makes $53,510. That’s right, one of the two richest Americans, Warren Buffet, has a compensation ratio of 2-1 to the average employee.

Now, some may argue with me by talking about how well the stock market is doing, but remember, blue-collar workers do not invest in the stock market, except through their retirement 401Ks, so the day-to-day successes of the financial markets do not trickle down to the workers but do benefit the white-collar workers who are more likely to have stock options as part of their compensation packages.

Why does this matter? What does this have to do with unions and Labor Day? Well, in 2016, in terms of raw numbers, there were 14.6 million members in the U.S., down from 17.7 million in 1983. Statistically, union workers average 10-30% higher pay than non-union in the United States after controlling for individual, job, and labor market characteristics. Hence, for example, government jobs are pretty good, right? And, unsurprisingly 35.3% of government employees are unionized, coincidence? Meanwhile, while only 6.7% of private-sector employees are unionized.

Now, if you don’t mind me geeking out a bit, consider these two other pieces of fun facts:

Percentage-wise, 10.7% of American workers belonged to a union in 2016, compared to 20.1% in 1983. And, if you take government employees out of the picture, the current union membership in the private sector has fallen under 7% — levels not seen since 1932. You know, the time of the Great Depression?

Income disparity, deficit-spending by the government, and the static wages of the average American-worker (adjusted for inflation) are all related to the decline of union power in the United States. And that decline is intentional. I have mentioned these so-called Right to Work states. The argument goes that workers should be able to choose whether they belong to a union or not; of course, one could argue that they chose to belong to a union when they chose their profession, right? I mean, when I join the army, I know I’ll have to do physicals. When I join air-traffic controlling, I know I have to take drug tests, etc., etc.

But back to R-T-W; the more appropriate legislation would pass a Hyde Amendment for unions to limit political spending of individual dues to the union, not to block the union dues themselves. The R-T-W is about union-busting, not the rights of workers or free speech.

And Labor Day? Labor Day is a holiday to celebrate the history of the unions in this country, the obstacles that unions and their blue-collar workers had to overcome, and the benefits that almost all American workers take for granted these days: the 8 hour work day, not 12 or 14; the five day work week, not 6 or 7; the prevention of child labor; and the right to collectively bargain for fair wages and benefits.

Honor our Veterans on Veterans Day, honor our Civil Rights leaders on MLK, honor our Founding Fathers on Washington’s birthday and the 4th of July, and honor labor unions on Labor Day.

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My name is Tom Keefe, and I’m your Babbling and sometimes blasphemous Professor,

Happy Labor Day everyone!

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References, Links, and Resources

https://www.history.com/topics/holidays/labor-day

https://www.dol.gov/general/laborday/history

https://books.google.com/books?id=bIFIAAAAYAAJ&pg=PA443#v=onepage&q&f=false

https://money.cnn.com/2018/05/22/news/economy/ceo-pay-afl-cio/index.html

https://www.bls.gov/news.release/union2.nr0.htm

https://stats.oecd.org/Index.aspx?DataSetCode=TUD