​By the time you read this, Amy Coney Barrett will likely be well on her way to a Supreme Court appointment that will alter your lives and those of your children and grandchildren, and not necessarily for the better.

Barrett, like her mentor, the late Justice Antonin Scalia for whom she clerked, claims to be an “originalist” and “textualist” with respect to her interpretation of the U.S. Constitution and laws in arriving at judicial decisions. Derived from that philosophy is that these folks purport never to allow their personal ideology or politics to influence their decisions.

If you buy that, I have a bridge spanning New York City’s East River I’m eager to sell you. 

Originalists claim they go by the language of the Constitution, but in applying their philosophy, they tend to go beyond the language of the Constitution to consider intent, as evidenced by the history of the text and the Founding Fathers’ writings on the subject.

Textualists profess to go by the literal language of a law when assessing its constitutionality. The words mean what they say, period, and nothing more. Textualists say that they do not delve into legislative intent. 

Both originalists and textualists call themselves “strict constructionists.” If they really were so pure, then any laws enacted since 1789 that addressed technologies that post-dated the Constitution, such as the telegraph, railroads, telephones, automobiles, airplanes, radio, television, atomic weapons, computers, the Internet and cellphones, to name a few, would have been declared unconstitutional.  Since textualists and originalists haven’t done that, their professed philosophies camouflage  what they are really about.

Barrett also claims that she does not and will not legislate from the bench, a criticism conservatives have battered liberal judges with since the Warren Court. This is a canard easily countered by reading her Court of Appeals’ decisions. The idea that conservative judges refrain from legislating (“judicial activism”) is, like originalism and textualism, unadulterated hogwash. Conservative judges legislate all the time. All you need to know to skewer that falsity is to read some of the Supreme Court’s recent decisions in which the Court’s alleged textualists/originalists prevailed: Citizens United, where the Court overturned congressional legislation (the McCain-Feingold Act) that imposed restraints on the influence of money in political campaigns; or  Shelby County v. Holder, where to its eternal shame, the Court’s majority trashed the section of the 1965 Voting Rights Act that reined in voter suppression, thus opening the door to the flagrant attempts by Donald Trump and Republicans to steal the 2020 election by suppressing the vote.  

Underlying all this hokum about how self-proclaimed judicial purists like Barrett supposedly read and interpret the Constitution and laws is the fact that they emerge from the Federalist Society, a right-wing organization awash in money from the reactionary billionaire class (e.g, the Koch Brothers, the Scaife Foundation and their ilk). Under recent Republican presidents, this extremist group has owned the franchise on selecting candidates for federal judicial appointments. It has an agenda, one that perverts public policy toward the interests of corporations and the super-rich, anti-regulation crew that wants government out of the way so they can do what they please, to hell with the public good. Amy Coney Barrett is a devoted, card-carrying member of the Federalist Society. Bet the mortgage that she will legislate from the bench in pursuit of the Society’s goals. 

The naked power grab represented by the Trump/McConnell hypocrisy is bad enough in itself--denying a nominee a hearing and vote in one presidential election year while hustling another through four years later. What she brings to the Supreme Court and what she will do to America in the next thirty years is far worse, beginning with terminating healthcare for 20 million Americans, an issue about which she has been outspoken, criticizing the constitutionality of the Affordable Care Act. Once on the Court, she will hear oral arguments in the Trump administration’s determined attempt to deep-six the Act on November 10.

Access to health insurance will be taken away from 23 million Americans. The ban on denying coverage for pre-existing conditions (like Covid-19) will be gone. Allowing your kids to stay on your health plan to age 26 will disappear. 

Now to the Barrett antidote: “Court packing”--expanding the number of justices--that has aroused much passion in recent days, is not the solution. Even in 1937, when FDR attempted it after winning a huge electoral victory, it got a bad rap. Actually, while he failed to expand the Court, he achieved his goal. The Court was so terrified that it immediately began upholding New Deal legislation it had been striking down before. 

Court-packing would only open the door to more of the same the next time Republicans take power. However, there is another way to neutralize a reactionary Court: by invoking the “jurisdiction-stripping” authority enshrined in the Constitution. Article III, Section 2’s “Exceptions” clause gives Congress the power to define (limit or remove) the Court’s appellate jurisdiction, even in constitutional cases. The Court itself has upheld this power numerous times. This weapon can be wielded without all the political baggage associated with court-packing. While that may not save the Affordable Care Act, it could be a bulwark against many of the rest of the laws and principles that matter so much.  

Dick Hermann
October 16, 2020

​Tone-deafness and continuing reckless behavior regarding an apolitical virus has hit the Trump administration and Republicans hard with a vengeance. Their tunnel vision blinded them to the viral train wreck now decimating their ranks, put their continuation in power in grave jeopardy, and may play a delaying role in their hypocritical rush to confirm a Supreme Court justice on record advocating overturning both the Affordable Care Act and the five-decades old Rowe v. Wade decision.
 
We mourn the deaths of more than 212,000 Americans and grieve over the tragic fact that many of those lost lives could have been saved had our national government taken the obvious steps that other nations’ leaders took to protect their citizens and bring the virus under far better control. Instead, Trump politicized the pandemic. He rashly dismissed the resources at his disposal. He threw away the 100-page playbook on how to deal with a pandemic left him by the Obama administration. He disbanded the government’s pandemic bureaucracy. He pulled out the CDC epidemiologists stationed in China to warn us of potential pandemics. When the virus hit, he could have blanket-invoked the Defense Production Act to bring sufficient personal protective equipment to front-line healthcare professionals, many of whom got sick and died due to their absence. He could have used the presidential pulpit to promote safety and health. He could have avoided super-spreader events and rallies, substituting remote, virtual campaigning in the interests of audience safety and public health. He chose otherwise and now not only his voters and the rest of us, but also he himself, his family, his aides and his political allies are reaping the consequences.
 
To say that the White House contact tracing effort after it became the global infection hot spot (more cases in one day than Vietnam, Taiwan, Yemen or New Zealand!) has been lacking is a gross understatement. This is concerning since the growing number of infected individuals who attended his events have been in contact with thousands of others. The 206 Trump donors who attended a New Jersey fundraiser with the president on September 30, disdaining both masks and physical distancing, as well as the many workers at Trump’s golf club who may have then been exposed, have been left hanging. And so the official policy of down-playing the virus and doing nothing to contain and mitigate it continues notwithstanding that the chief perpetrator of the botched coronavirus response contracted the disease.
 
Trump has been playing with fire. He belittles and sidelines scientists, doctors and public health experts, demands stunts and photo ops despite the dangers involved, and mocks people (including Joe Biden at their debate) for wearing masks. He’s been badly burned.  
 
Transparency is not exactly a Trump administration byword. Had Bloomberg News not discovered and reported presidential aide Hope Hicks’s positive Covid test, one has to wonder if we would ever have found out that Trump was sick. Given the White House’s refusal to say when Trump last tested negative, it is likely that Trump knew he was sick when he went to the debate, his subsequent Minnesota rally and his New Jersey fundraiser. Otherwise, he would be eager to inform us of his test results, as he always has been in the past.
 
Another important point about the lack of transparency: all but one of the physicians who periodically emerged to brief the press and public about the president’s health are U.S. military officers who could be ordered what to say by their commander-in-chief.
 
While we may neutralize Covid-19 sometime in 2021 if we finally take the steps we should have taken nine months ago, we can never make up what we have lost in loved ones, jobs, income, assets, personal security, education, the maladies associated with lengthy isolation, businesses gone forever, shelter, and much more. The best we can do is take heed of the lessons the pandemic has taught us: that we must plan and prepare for existential crises and confront them responsibly as a government and as citizens.
 
It’s time for the anti-science, anti-facts mindset popular among millions of Americans to be shelved in favor of reality. Otherwise, we are destined to repeat this tragic affair and find that we are equally unprepared for the next time calamity strikes. The climate crisis, which is already upon us, cries out for an immediate governmental and global response before it consumes all of us if this attitude persists.
 
Voters have the opportunity to accomplish two essential objectives on November 3rd. (1) Send packing this dreadful crew that foisted much of this misfortune on us; and (2) Vote in a new team that will do what is necessary to get us out of this mess and back to normal.
 
Dick Hermann
October 9, 2020

Donald Trump is frantically trying to steal the presidential election through the most massive voter prevention effort since the heyday of Jim Crow, as well as voter intimidation, lies about voter fraud and by claiming that if he does not win, then the election was rigged. Setting these unprecedented calumnies and barbarities aside for the moment, the mainstream media horror that we won’t know on election night who won and thus the ensuing days and weeks will descend into chaos violence is misplaced. We will have a dependable way to know on November 3d if Joe Biden is highly likely to win the presidency. That’s because Florida, the core battleground state and the poster child for election administration incompetence (see 2000), will report its complete results that evening. Should Biden prevail in Florida, it’s most likely curtains for Trump. The worst president in American history by at least a parsec (think a country mile x 19 trillion) will be toast. Without Florida, Trump has no path to 270 votes in the Electoral College. Zero. Nada. Zilch.
 
However, should Trump win Florida, all bets as to who wins the presidency are off. It will still be an uphill climb for him, but not impossible. He would have to run the table in the rest of the battleground states like he did in 2016 while also holding on to states he won four years ago. It is noteworthy that states like Ohio and Georgia that, by rights, should be firmly in his sagging pockets, are suddenly up for grabs. In fact, Ohio, without which no Republican has ever been elected president, is giving Republicans heartburn now because their internal polls show a Biden lead.
 
Three battleground states other than Florida may also report their results on November 3d: Arizona, North Carolina and Ohio. Thus, by midnight or in the wee hours of November 4th, we should have a pretty good sense of where things stand: either a Biden victory or an uncertain outcome. Should Biden sweep all four of these states, look for a landslide that will blow Trump out of the water.
 
Twenty years after Florida’s election snafu—butterfly ballots, hanging chads, recount chaos, conflicting court decisions, etc., the Sunshine State has a rare opportunity to redeem itself by giving us a new, competent president and a path out of the black hole of Trumpism.
 
Dick Hermann
October 2, 2020