Monday, December 26, 2022

The 2022 Annual Ditty--Every Groan Of It

Get Me To The Polls On Time

There's just a few more hours.
Until they slam the door.
A few more hours
Before they say no more.
I’m voting Midterms in the morning!
Ding dong! Kornacki’s gonna shine.
Pull down the lever!
Let's break the fever!
But get me to the polls on time!
I gotta be there in the mornin'
If not, then has to be by nine.
Please don’t delay me;
The future will hate me
But get me to the polls on time!
If they are Tweetin’
Turn off the screen.
One more commercial
And I’m gonna scream!
For I’m voting Midterms in the morning
Swoosh, whirr, the scanner’s gonna whine.
Don’t stop the countin’
My guy’s lead’s been mountin’
And get me to the polls,
Get me to the polls,
For Gawd's sake, get me to the polls on time!
I'm voting Midterms in the morning
Ding dong! Let’s do it one more time.
Suppress and depress me
You won’t prevent me.
But get me to polls on time!
I gotta be there in the morning
ID’d and lookin' in me prime.
If I seem tired,  
But not undecided
Just get me to polls on time!
Oz isn’t worthy
So shoot him down;
He’s from New Jersey
Or someplace out of town.
So, I’m voting Midterms in the morning!
Ding dong! Vict’ry’s surely mine.
Lake’s got the Trump base
Oh, what a nutcase
So get me to the polls,
Get me to the polls…
For Gawd's sake, get me to the polls on time!
Herschel’s still babbling ’bout a bowl game.
Johnson’s a raving antivaxx.
Marco’s awak’n
Empty suit await’n…
Throw out the bums
Say no to quacks.
I’m voting Midterms in the morning!
Ding dong! Kornacki’s gonna shine...
Hail and salute me
Then haul off and boot me...
And get me to the polls,
Get me to the polls...
For Gawd's sake, get me to the polls on time!

Happy and Merry to all.  

Tuesday, September 20, 2022

Last Person Standing--The Presidential Succession Act Turns 75


I have a terrific pain in the back of my head.
—Franklin Delano Roosevelt, April 12, 1945.

 It was all so fast. Just moments earlier, FDR was sitting for an official portrait, reading the newspapers, writing a few notes. Now, after 12 years of turmoil, World War and Depression, he is gone, work unfinished. Within hours, his successor, Harry S. Truman, is sworn in, and, for the first time, is told of the Manhattan Project. The awesome moral responsibility for the use of nuclear weapons falls on his shoulders, and a bullseye appears on his back.

 The fact is that Vice Presidents are pretty much non-entities, supporting actors in a one-man play, unless and until they suddenly become the most important person in the world. History shows us that this occurs far more often than simple mortality tables might suggest. By one estimate, being President is about 27 times more dangerous than being a lumberjack.

 The authors of the Constitution understood this, but, after vigorously debating the extent of Executive Power and the interrelationship of the three branches of government, and creating the future monster known as the Electoral College, they flickered out a bit when it came to figuring out Presidential succession beyond the elevation of the VP. Instead, they kicked the can to Congress in Article II, Section 1, Clause 6, to declare which “Officer” would act as President if both the President and Vice President died or were otherwise unavailable to serve during their terms of office “until the disability be removed, or a President shall be elected.”

Congress got right down to this searching for the Devil in the details, found him, and finally (and begrudgingly) settled on a compromise in which the Senate’s President pro tempore would be first in line, followed by the Speaker of the House. Cabinet Members were ruled out (especially the then-Secretary of State, the annoying, ambitious, and possibly disloyal-to-Washington Thomas Jefferson), as was the Chief Justice of the Supreme Court.To that, Congress added another feature that was really quite interesting: Regardless of who would serve, the appointment would be temporary, and, within two months, a new special election would be held, and the newly elected President would then serve a full four-year term beginning in March of the following year. The bill passed, was signed by George Washington into law, and became what is known as the Presidential Succession Act of 1792.

Mistakes were made, both in the Constitution and in the 1792 Act. These were some of the best political theorists we have had, but they were inventing an entirely new form of national government, without the benefit of much practical experience. First, the Constitution called for the Vice President to be the person who came in second in the Electoral College vote. This made perfect sense from a competence standpoint. Unfortunately, it showed itself to be an utter disaster when, in 1796, it paired winner John Adams with loser (and passionate rival) Thomas Jefferson, and then, in 1800, Jefferson again with his one-time-ticket-mate and then mortal enemy Aaron Burr. Congress and the country fixed this one in 1804 with the 12th Amendment. Second, the Special Election idea was interesting, but, by giving the winner a new four-year term, it could permanently make Congressional elections off-cycle. Third, and this was tantalizing: the 1792 Act might have incorporated an idea that was actually…unconstitutional.

Yes, there’s a legitimate argument, supported by Madison himself, that “Officers,” as referred to in Article II, meant “Officers of the United States” (meaning of the Executive Branch), and did not include “Officers” of the Legislative Branch. If that argument was valid, then the 1792 Act’s inclusion of the President pro tempore and Speaker violated the Constitution itself. Given that the same two positions are included in our current law on succession, I’m going to leave to your imagination what might occur if a few good Supreme Court textualists take note of that constitutional issue at a convenient time.

Constitutional or not, we used the Presidential Succession Act of 1792 for almost a century, fortunately never once having to wonder whether the President pro tempore or the Speaker was really an Officer. Things did happen: Presidents died in office and were replaced by Vice Presidents, and Vice Presidents died in office, and were replaced by—no one. In just the period between 1841 (the premature death of William Henry Harrison) and 1881, VP slot was vacant for almost 18 years. There were also close brushes with mortality, physical and political: John Tyler, almost a year after assuming the Presidency, was on the USS Princeton when the largest naval gun in world exploded, killing at least six, including his Secretary of State Abel Upshur and Navy Secretary Thomas Gilmer. Andrew Johnson, the hated heir to Abraham Lincoln, was Impeached, and, during his Senate trial, his chief antagonist was Benjamin Wade. Wade also happened to be President pro tempore—and would become the next President, if Johnson were convicted.

Clearly, there were a few bugs in the system that had to be addressed. The 1881 assassination of James Garfield (and his excruciating 80 days of suffering) gave momentum in Congress for a reexamination of the original 1792 Act. The debate lasted several years—the original bill was introduced by Massachusetts Senator George Hoar in 1882—and a lot of the issues raised still have resonance. Among them were whether the special election called for in the 1792 Act still made sense, and the conflict of interests stemming from having the House and Senate initiate and then vote on Impeachment and removal, to the personal benefit of their most powerful members. A further problem related to what was informally known as “bumping” (a Cabinet Officer who assumed the Presidency after the President pro tempore or Speaker refused it could later be “bumped” if either of them, or a subsequent President pro tempore or Speaker changed his mind).

Ultimately, Hoar’s bill dropped special elections and moved succession in the absence of a Vice President from Congress to the President’s Cabinet: first to the Secretary of State, followed by other Secretaries in order of their Department’s creation: Treasury, War, Attorney General, and so on. Doing so, it was felt, would lessen the political incentive for removal by the only bodies that had that authority over both President and Vice President. Finally, there was the added benefit of continuity: having the President’s Cabinet provide his successors increased the likelihood that his policies would survive him, at least for the balance of his term. A shaken country perhaps did not need an entirely new government and an entirely new governing philosophy.

Still, in a bow to Congress/Congressional oversight, conditions were included that were intellectually sound, but could have unintended consequences: the “candidate” would have had to have been already confirmed in his Cabinet post, not be under impeachment by the House, and otherwise be qualified to be President. While these and other provisions were being debated, Grover Cleveland’s Vice President Thomas A. Hendricks died after less than nine months in office, underscoring the obvious: Sooner or later, there could be a double vacancy, and the potential for real disruption. The time for change was now, and, in December 1885, the bill was passed by Congress, to be signed into law by President Cleveland in 1886.

Not unexpectedly, the lived experience remained the same. Presidents continued to die in office (McKinley, assassinated and replaced by Teddy Roosevelt, and Warren Harding, replaced by Calvin Coolidge). Vice Presidents as well—Garret Hobart (McKinley’s first) and James Sherman (Taft’s). In 1919, Woodrow Wilson suffered a catastrophic stroke, but clung to the Presidency through the balance of his term. His Cabinet and his Vice President knew he should go, but without a formalized process for removing him, they also knew their efforts would appear to be tantamount to a coup. Wilson “governed” through his wife and personal physician.

That was the background when Truman was suddenly elevated to stand in the shadow of a giant. A country at war, about to be introduced to the possibility of the greatest mass casualty events ever, needed consistent, continuous leadership that credibly reflected its founding values. Truman was dissatisfied with the 1882 Act in several ways and wanted a change.

His proposals, many of which were ultimately adopted in the 1947 Act, reflected his own experience and preferences. He was a man of the Senate, having served there for 10 years prior to his election as VP. He trusted both the legislative process and the men who engaged in it. He was less comfortable with his own Cabinet (he had asked Roosevelt’s to stay on during transition) and clearly preferred elected people to appointed ones. To Truman’s way of thinking, someone who stood before the voters, even if it was just in his Congressional District, had more legitimacy than an éminence grise.

Truman’s democratic (small “d”) inclinations also led him to believe that a President should not have the authority to select his immediate successors. He pressed for four things: (1) Flipping the priority to elevate the two elected officials (President pro tempore and Speaker) ahead of his Cabinet Members, (2) placing the Speaker as first in line, ahead of the President pro tempore, (3) including the “bumping” provision so that those two legislative leaders would essentially have a permanent “option” on the Presidency, and (4) calling for a special election to replace the “Acting” President, as the 1792 law did.

To Truman’s credit, he stuck to his position even after Democrats lost both the House and Senate in the 1946 Midterms, meaning he was willing to sacrifice his own policy aims for what he thought was the greater good. While the special election idea failed, Truman’s other priorities were largely accepted. The Senate passed the Act 50-35, the House 365-11, and the 1947 Act remains controlling law. What it didn’t do was deal with the “Wilson” problem, leaving that for future Presidents to write private, Constitution-free memoranda to their Vice Presidents and Cabinet (which they did, prolifically).

The 25th Amendment plugged the Wilson gap by providing a structure for dealing with both temporary and permanent disabilities of a President. It also, finally, set out a process for replacing a Vice President. It was a great, bipartisan achievement, accomplished, in part, by Senator Birch Bayh’s critical insight not to overreach where it wasn’t necessary. The best way to see the 25th is as an essential bolt-on. It does not deal with possible constitutional (and practical) objections to having the Legislative Branch play a dual role, both in Presidential and Vice-Presidential succession, and it leaves “bumping” untouched. In short, the process is still open to bare-knuckled politics.

More and more, that seems to be the primary problem. Our world is growing more dangerous in both the biggest and smallest of ways. A dictator may threaten nuclear war, a targeted attack might largely decapitate leadership, or a President and Vice President, along with Cabinet and senior staff, might be in the Situation Room sharing a deadly disease. For what it’s worth, Kiefer Sutherland is not eligible, being a British and Canadian subject.

Neither is Harry Truman, or enough people with Harry Truman’s values. The worst shortcomings of the 1947 Act and the 25th Amendment are that, in practice, bad outcomes are possible, even with the best of intentions, and worse outcomes are likely, either through bad planning or bad faith.

First, the requirement in the 25th for a legislative officer to resign from Congress in order to assume the duties of the Presidency can distort outcomes. Being Speaker is a really good job. Being President is better, but perhaps not if the President you are replacing has but a few months left in his term or is just temporarily incapacitated. If the idea is that the Speaker is invested with special powers that would promote governing excellence, then why not let that person resign as Speaker for a defined period, perhaps two terms, while allowing him to keep his Congressional seat?

Second, the job of President pro tempore has become ceremonial, with the slot given to the longest continuously serving Senator from the majority party. Very old Senators become President pro tempore. The current one is the retiring Pat Leahy (82) and he’s the spring chicken of the lot—past ones have included Chuck Grassley (88, running for reelection, and, if he wins, likely to assume the role in the 118th Congress); Robert Byrd, who served into his 90s; the centenarian Strom Thurmond; and 80-somethings Ted Stevens and Daniel Inouye. To give you an idea how desiccated this group is, should the Democrats, miraculously, manage to hold the Senate in 2022, the new President pro tempore would be (take a breath) Diane Feinstein. I think we would all agree this screams out for reform. Either select spritelier Presidents pro tempore or move the position further down (or even out) of the line of succession. The very last thing you want is an elderly, unfit President pro tempore taking the job because if he or she doesn’t, an opportunity to flip party control is lost.

None of the structural and drafting issues, even the potential constitutional one, would be nearly as problematic if we hadn’t so thoroughly discarded Harry Truman’s values. There just aren’t enough politicians who care about integrity. This has inevitably led to hyper-partisanship and Parliamentarianism. Non-consequential votes are difficult; on big ones, it’s nearly impossible to draw any meaningful support from the other side. Even things that would ordinarily pass through a demilitarized “voice vote” are now jammed by political peacocks looking to grab a bit of airtime. If Congress can’t manage the naming of a post office without acrimony, how can we expect it to handle something as critical, and possibly historic, as a Presidential transition?

A legitimate government comes to power fairly and doesn’t lurch in the absence of a mandate by the voters. While I respect Truman’s preference for elected officials over appointed ones, his “Legislature first” approach makes lurching quite likely.

The facts are staring us in the face. From Truman’s “Do Nothing” Republican-controlled 80th Congress to our 117th, there have been 26 Congresses that have featured a Speaker of the opposition party and 16 in which the opposition party controlled the Senate. Divided government happens, and, by placing the Legislature so high up in succession, you are inviting chaos—and no-holds-barred partisanship.

There are two ways to deal with this, neither of which has much likelihood of succeeding in this Congress. The first would be the simplest—return to the 1886 Act and Cabinet-only succession. This wouldn’t eliminate Legislative gamesmanship (a hostile Senate could slow-walk Presidential nominees, for example), but it would simplify things and make it more likely the President’s policy choices and approach to governance would be continued. It’s never, ever going to happen. The second would be to give the Secretaries of State and Treasury priority over the Speaker and (help!) President pro tempore, and eliminating “bumping.”

Of course, even if you could get Congress to agree and the President to sign a bill incorporating the latter, control of the House would be critical, because the only way a candidate would be considered eligible is if he were not under impeachment by the House. Mark me as cynical, but, should a Presidential vacancy occur in the absence of a VP, I have very little doubt that a motivated House of Representatives would find some high crime and misdemeanor perpetrated by both the Secretaries of State and Treasury, and vote on party lines to Impeach. This does not mean the Senate would convict, but it would take both Secretaries out of the line of succession, leaving the Speaker to take charge.

Isn’t this all farfetched? Are we really going to have a Presidential vacancy and Vice-Presidential vacancy at the same time? Doesn’t the 25th provide for a replacement when necessary? It does, but the “Harry Truman” problem arises again—and not just in West Wing fiction. There’s a structural bottleneck, should partisan fever take hold: The President gets to nominate, but both Senate and House must bless the choice with a simple majority vote. The 25th does not mandate good faith, nor does it require that both chambers take up the nomination in a timely fashion. Should the opposition party control either the House or the Senate, and if their caucus is unified, either could demand that the next VP be of their Party, or someone of the President’s party, but of their choosing.

Should this all be fixed? Of course—the world is much more complex and dangerous than ever, and it’s the duty of Congress and the President to try to provide the least disruptive and most credible transition of power in time of crisis.

Can any of this be fixed? With good will and honest bargaining between the parties, anything is possible. I’ll acknowledge that last sentence does smack of fiction.

I want to thank Fordham University Law School for two superb programs which spurred my interest in Presidential successions. The first was held back in 2017 to celebrate the 50th Anniversary of the adoption of the 25th Amendment: “Continuity in the Presidency: Gaps and Solutions. Building on the Legacy of the 25th Amendment.” The second was given earlier this month: “The Presidential Succession Act at 75: Praise It or Bury It?” Professor John Rogan organized it and was kind enough to provide me with the links to the presentations themselves and the materials. There are some superb (and challenging) articles that are well worth your time, and I would start with Professor John Feerick’s on page 45 of the PDF. Dean Feerick worked with Senator Birch Bayh on the drafting of the 25th Amendment and was able to share firsthand information.

This was first posted on on April 25, 2022

You can also follow me on Twitter @SyncPol and see over 70 articles I've written for 3quarksdaily   

Sunday, July 10, 2022

Your Rights: Disappearing


By Michael Liss

"Judge [Ketanji Brown] Jackson is an extraordinary person with an extraordinary American story[,] … [as well as] impeccable credentials and a deep knowledge of the law…, but I am unable to consent to the nomination. —Senator Ben Sasse (R-NE)


At least Ben was polite about it. The rest of Judge Jackson’s hearing was absolutely awful. If you watched or read or otherwise dared approach the seething caldron of toxicity created by the law firm of Cotton, Cruz, Graham & Hawley (no fee unless a Democrat is smeared) you’ve probably had more than enough, so I’ll try to be brief before getting to more substantive matters.

 First, as to KBJ’s chances, the jury is still out. Sasse’s fan dance means the Judiciary Committee will split 11-11, so a parliamentary maneuver will be required to move her nomination to a vote by the Senate as a whole. She just got Joe Manchin on board (leaving Sinema as the only possible Democratic holdout), and she might, maybe, get a vote or two from a Republican.

We should acknowledge that standing up and out of the latrine that Cotton & Co. just dug is a little difficult for many Republicans, even the ones who are about to retire. I mean, who could possibly say yes to a smut-peddling, criminal-coddling, CRT hugger who doesn’t even have a grasp of basic anatomy? The country should be grateful that Republicans finally were able to unearth the truth (having erroneously aided in confirming her to the federal bench twice before). Good grief. It wasn’t always like this.

From Gerald Ford’s nomination of John Paul Stevens in 1975 to Barack Obama’s nomination of Elena Kagan in 2010, there were 14 new nominations, eight of which (Justices Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsberg, Breyer, and Roberts) got a minimum of 78 votes and three more (Rehnquist, Kagan and Sotomayor) at least 63 votes. Presidents generally received deference in their selections unless those selections were particularly controversial (Robert Bork, the only rejection) or unprepared (Harriet Miers, withdrawn by President George W. Bush after getting advice from senior Republicans). Those who use Bork as an all-purpose excuse might want to go back and look at the timeline of confirmations. His nomination was sandwiched by Scalia (98-0) and Kennedy (97-0).

I’m not going to replay the Garland-to-Gorsuch-to Kavanaugh-to Barrett trail of tears, but suffice to say McConnell’s adroit duplicity coupled with Trump’s naked embrace of the idea of “Trump Judges” working for Trump deepened the bitterness beyond repair. We have now come to this: An extremely well-qualified nominee whose confirmation will in no way change the ideological composition of the Court can’t get a fair hearing, much less a dignified one.

What’s the purpose of this, when we know the Inquisition Five (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) will remain in control of SCOTUS regardless?

Part is just politics, both personal and the GOP’s. On the personal side, Cruz, Cotton, and Hawley have the temperament of rattlesnakes to go along with limitless ambition. As to Graham, he needs to check his meds—drooling with anger doesn’t look good for the cameras. All four want time on conservative media to tout their credentials for 2024, and they aren’t the only ones. Rest assured, when the nomination comes to the floor, others looking for a microphone (Rand Paul, Marco Rubio, Rick Scott) will get their shots in as well.

Of course, the individual motivations of Senators are just a part of the story. Grandstanding is always in season in the Senate. What is also going on is that the GOP thinks it’s found a face on which it can plant a whole trope for the Midterms and 2024. (Although the posters may have taken them down for now, Twitter was nearly immediately plastered by @GOP with a picture of Judge Jackson, her initials replaced by the letters “CRT.”) Judge Jackson is soft on crime, easy on child pornographers, and wants Critical Race Theory taught in Pre-Ks. Hate Judge Jackson. Fear Judge Jackson. Bingo, there go the suburbs returning to a Republican embrace.

Let’s assume the GOP’s analysis and messaging turns out to be accurate, and they stomp the Democrats in 2022 and 2024. And, let’s assume that The Five continue to bless us with their unique blend of Judicial Activism combined with a hunger (and the power) to raze past precedents and return to the Eden of Faith, Family, and Fatherland. Just what kind of a paradise are they offering?

Last month, I highlighted several matters before SCOTUS that were attention-grabbing, like the challenge to Roe v. Wade and New York’s 107 year old gun law. This month, it appears I need to add a few others. Loose Republican lips keep reminding us of their priorities.

First, let’s put the little nasty out there. Senator Mike Braun of Indiana criticized the Supreme Court’s 1967 holding in Loving v. Virginia, which declared state laws against racially mixed marriages unconstitutional. Braun’s office tried to claim he was (a) misunderstood, while (b) wrapping the whole thing in a Federalism argument, but it’s out there. A lot of conservatives really dislike Loving, in part because it leads into the even more frightening (and likely soon to be reversed) Obergefell v. Hodges (same sex marriage).

I know, it’s 2022, and we shouldn’t be relitigating this, but, here we are, so, here’s a little background on Loving: Racially mixed marriages have always had an uneasy existence in the United States. By the late 19th Century, as many as 38 states had laws prohibiting them, and beyond whether it was legal, the social opprobrium was intense. In 1958, police entered the home of a young couple, Richard and Mildred Loving, arrested them in their bedroom, and charged them with violating a law that made racial intermarriage a felony punishable by up to 5 years in jail. A judge offered them a deal—leave Virginia for 25 years (not a typo) and he would spare them being sent to prison. It kind of boggles the mind some 60 years later, but, hoping to remain together, and not behind bars, they accepted, and moved to DC. Several years later, they wanted to return to Virginia to be closer to family, but Virginia’s law was still on the books, as similar ones were, in roughly 20 other states. They wrote to Robert Kennedy, then Attorney General, and he put them in touch with folks who would give them legal representation.

The challenge to Virginia’s law wended its way through both state and federal courts, landing in the Supreme Court, where, on June 12, 1967, SCOTUS unanimously ruled: “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

This is the ruling that keeps Mike Braun up at night.

But, enough about Senator Braun. He’s not even on the Judiciary Committee. Let’s move to someone who is, Marsha Blackburn of Tennessee. She got a lot of conservative street cred out of asking Judge Jackson just what a woman was, but she had her own Supreme Court ruling to dislike, 1965’s Griswold v. Connecticut. There, the Court held that Connecticut’s ban on selling contraception to married couples violated a constitutional right to privacy. Oh, my, do conservatives hate Griswold (and the 1972 Eisenstadt v. Baird, which extended it to unmarried people). Griswold, to them, is the entry drug for all types of privacy arguments—on contraception, on abortion, on any type of personal relations, gay or straight, sexual or not. Privacy is a very dirty word. First, they insist there is no right to privacy in the Constitution (they are good textualists). If the Framers had intended for someone to have a right of privacy in his or her home, they would have stated something akin to “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Second, privacy arguments are just excuses for sinning. People do things in the privacy of their own homes, things Republicans don’t approve of (and surely don’t engage in). Early to bed after a cold bath and 30 minutes with the Good Book is the Republican way of life, and should be everyone’s.

A cynic might say I’m exaggerating the threat, and Blackburn is just playing politics. After all, poll after poll shows Americans overwhelmingly support contraception, and most definitely believe that there is a right to privacy in their own homes. Unfortunately, among the folks that count—The Five and Justice Roberts—virtue is particularly high, and support for either the general idea of privacy or the specific one regarding contraception is considerably more…tepid. We know Thomas and Alito are actively hostile; Roberts has never been comfortable with the logic; Gorsuch only said, during his confirmation hearing, that Griswold was a 50-year old precedent, and Kavanaugh and Barrett were equally opaque, but none of those three have had any difficulty overturning other 50-year old precedents (and Roe, by the way, is 50). Watch out for uncomplimentary references to Griswold in the upcoming decision(s) reversing Roe and Casey. I suspect that Senator Blackburn will be pleased that immoral behavior will be discouraged. For those who feel webcams in pharmacies might be a little bit too much, I suggest stocking up on whatever supplies are necessary, and check the expiration dates while you are doing it.

Since the states are laboratories of democracy, it seems that this is an excellent segue to a third matter that has popped up over the last few weeks, the Independent State Legislature Doctrine. This one regards your right to vote, and is a doozy.

We all know that the Supreme Court’s hostility to voting rights has increased with each new conservative Justice added, but there’s more to quashing voting rights than just averting your eyes on discriminatory tactics. Several of the Justices have begun to embrace an even more innovative technique: claiming that State Legislatures have the sole right to determine the time, place and manner of your voting. Before you go any further, focus on “sole right” because the Justices mean what they say—the sole right not merely to make policy and be free of virtually all federal oversight (SCOTUS insists on deferring when voting rights are involved), but the sole right to be free of both a Governor’s veto and the highest state court’s determination of state constitutionality. The application of ISLD makes the State Legislature the first and last word on voting. The party that controls the State Legislature can do anything it wants to perpetuate itself in power. You can even make the argument that state constitutional provisions guaranteeing voting are null and void, since only the Legislature has the authority in the first place.

Too kooky, right? Rights without a forum to vindicate them? Nope. Four Justices have explicitly embraced at one point or another the ISLD: Thomas, Alito, and Gorsuch in the 2020 election litigation involving the Pennsylvania Supreme Court’s authority to interpret a state constitutional right to vote, where it came to extending absentee voting because of the pandemic, and Kavanaugh in a Wisconsin case from the same period. How about Barrett? We don’t know, as she didn’t rule on the election cases, being new to the Court, but we do know that Roberts expressed some approval for ISLD in a dissent in a 2015 Arizona case.

Where did this come from? The theory has been around for a while, but it is firmly contradicted by precedents, some over 100 years old. It was raised again in the rather extraordinary challenge by North Carolina’s Republican-dominated State Legislature to the state courts’ redraft of its Congressional map, which the court found violated the state’s constitutional ban on partisan gerrymandering. In that case, Moore v. Harper, although the GOP was turned aside, both Alito and Kavanagh expressed interest in the ISLD.

You don’t need to be a mathematician or a seer to think that, sooner or later, the right case could come along, and a motivated conservative bloc, joined by Barrett or Roberts or both, will situationally apply this theory to align with their voting preferences. Let’s hope it doesn’t change an actual result. That could be the biggest blow to democracy since…January 6, 2021.

Sometimes we look at politics as just a form of entertainment, a game of back and forth, of tactics and slogans, and we believe that not all that much will fundamentally change when the flag passes from one team to the other.

“Sometimes” are over. To turn your eyes away to what is happening is to give consent. Judge Jackson didn’t. She looked straight ahead, and hung in. We should follow her example.

Your Rights: Disappearing was first published on on Monday, March 28, 2022

You can find my work on 3Quarks at and on Twitter @SyncPol

Monday, May 2, 2022

Your Rights In The Rearview Mirror

 Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. –Alexander Hamilton, Federalist 78

It’s my oldest memory. I am three, standing harnessed between my parents, in a brand-new two-seater 1959 Jaguar convertible roadster. We are on an empty gravel road someplace in Virginia and my Dad decides to let his new baby fly. I can see In front of me the windshield and, below, a gray leather dashboard that has two things of great interest…a speedometer and a tachometer. The motor hmmmmmms as he takes the car through the forward gears, the tachometer first rising and then falling, the speed increasing. The big whitewall tires are crunching the rough road; cinders are flying; we hit 60 MPH, then 70, then 80; and I’m clapping my hands and piping out “Faster, Daddy! Faster!” My mom goes from worried to furious “Slow down, Ernie, slow down!” As he passes 90, I look down for a moment and she’s slapping her yellow shorts. I peek at the rearview mirror and see a huge cloud of dust. 95, 100, and finally 105. Then without warning, and without using the brakes, he starts to slow, gradually downshifting; the speedometer and tachometer fall; and that’s where my memory ends.

I have been thinking about writing a Supreme Court piece since the conservative bloc’s muscle-flexing on Texas’s SB-8 abortion law, and, each time I do, the memory of that beautiful sportscar flying down the road keeps gnawing at me. The thrill of it, the uncertainty, the obvious danger. My Dad’s going through whatever decision-making process he did to start, continue, and end.

We’ve got a new Sheriff in town, a new driver for that beautiful car. Justices Thomas, Alito, Kavanaugh, Gorsuch and Barrett are taking the wheel and the throttle. Just where is their ultra-conservative vision taking us, and at what cost?

Ian Millhiser had a really interesting piece in Vox a couple of weeks ago. In response to a speech by Justice Barrett at Notre Dame Law School, he pointed out the dichotomist (and convenient) status she claimed for herself. Judges, she said, fell into two categories, “Pragmatists” and “Formalists.” Pragmatists went beyond the narrow limits of what Judges should do to arrive at what they saw as more equitable solutions. Pragmatists were sloppy, results-oriented, and failed to show intellectual rigor.

Formalists (like her) adhered closely to the original text, to history and tradition, and acted discreetly, without descending into Judicial Activism. Formalists embraced modesty, Judicial Restraint, Original Intent. Formalists were the true heirs of the Framers.

Let’s examine that for a moment. To my way of thinking, “Original Intent” has more than a little bit of alchemy to it. Certainly, I agree when the language of the Constitution is clear, that’s the law of the land. You change that only through the Amendment process. This is the “original deal” we all agreed to, and it should not be subject to the whims of any transitory majority.

Beyond that, though, Original Intent exists wherever a conservative Justice says it does, after careful consultation with their James Madison Edition Ouija Board. Amazingly enough, Madison’s disembodied spirit always agrees with the side that the “Originalist” wishes to favor. This is nonsense. As farsighted as the authors of the Constitution were, they couldn’t possibly have had a frame of reference for many of the issues we face today. They knew they were just driving in the piles and adding the girders—The rest of government would have to be filled in by their successors. In part, this is why they added Article I, Section 8, which gives Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution.”

As to Judicial Restraint and its buddy Stare Decisis, admirable as the concept may be, it is something that, in practice, on controversial issues, primarily exists for Senators on the Judiciary Committee to ask prospective Justices about at their confirmation hearings. “Judge Hornswoggle, my constituents are very concerned about an issue that I cannot ask directly about and really don’t want the answer to, so can you say “Judicial Restraint” three times with your fingers crossed behind your back.” Of course, potential nominees would never consider misleading Senators as to where they stand, and are deeply respectful of past precedent.

So, does Barrett and the rest of the Gang of Five believe in any construct other than their own ideological and political preferences? Millhiser clearly doesn’t think so. They are “flexible” whenever they happen to be considering anything they don’t personally agree with. That happens to encompass a considerable amount of President Biden’s agenda, including vaccines and other public health measures, his Green agenda, and his right to set his own policy on immigration. That’s only the start of it. Add voting rights, the role of religion in public life, guns, gays, and of course, abortion. On each and every one of them, these folks have either already acted or are poised to act in a way that would make genuine Formalists cringe.

We can begin with the 2021 5-4 decision in Whole Woman’s Health v. Jackson, which Barrett joined in full. We are all familiar with the Texas ban on abortion after six weeks, and the unusual way (through bounty hunting) the authors of the statute created to avoid judicial scrutiny. That is the headline, but it’s the process that allowed SB-8 to stand, and that Texas “Secret Sauce” that ought to be as much the story.

Before I go any further, I should point out the obvious. Roe v. Wade still stands, as does the fetal viability standard set in a subsequent 1992 case, Planned Parenthood v. Casey. They stand, but, after Whole Woman’s Health, any State where a majority of the Legislature and Governor don’t agree with those precedents can feel free to ignore them, using the Texas model. When is a constitutional right not a right? You are looking at one right now.

I’m not, in this essay, arguing here for the continuation of Roe or Casey. nor do I have any expectation whatsoever that a hard-right SCOTUS will do anything short of a headshot to both precedents when the Court rules later this year in Dobbs v. Jackson Women’s Health Organization, the Mississippi 15-week abortion ban.

I said above that my objection is to process, and, in the law, process matters a lot. Process, how you arrive at your desired conclusion, the consistency of the reasoning you apply, the precedents you observe, and the degree of authority you assume, are critical. In Whole Woman’s Health, the route the conservative bloc took tossed established process aside to achieve a desired result. Not only did they refuse to enjoin what is clearly a violation of existing law before ruling on it, but they blessed an end-run that essentially strips federal courts of their 200+ year primacy in determining what is a constitutional right.

We have had cynical and even intensely partisan rulings from SCOTUS before. But few have been as profoundly corrosive, as intellectually corrupt, or as damaging to the reputation of the Court as this one is.

Justice Roberts knows it—it’s why this long-term opponent of abortion rights joined the minority on this, so seemingly shocked was he by the blatant disregard for proper order. Quoting from an 1809 Opinion by Justice Marshall in United States v. Peters, “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”

Why would I get so riled up at this, and why should you, regardless of where you stand on the abortion issue? To start with, the bounty-hunter approach can be used in as many venues as have one-party governments with an itch to scratch about a particular constitutional right. Your rights, the ones you personally value but might not carry the approval of a majority of your State, can also come under assault.

A lot of conservatives acknowledge the theoretical danger of a Blue State doing this with guns or environmental issues, but are muted in expressing their concerns. Their reticence may be viewed as an even more damning evaluation of this Supreme Court. Many perceive the risk as theoretical only, since they expect SCOTUS to rush in to protect the rights that they and their fellow conservatives value, even while they leave other disfavored rights out on the ice to die. Here’s the problem with even that: Why should any American have to see their constitutional rights suspended, no matter how unpopular in their community? Constitutional rights shouldn’t be something you routinely have to litigate to vindicate. Despite Justice Barrett’s insistence that she’s a Formalist, there’s not an atom of Formalism to this approach.

On the other hand, there is a hurricane-force “Pragmatism” that doesn’t just show on deeply divisive issue like abortion. The emboldened conservative wing has far greater ambitions, and is expressing power where it can. This has been particularly true in the area of Biden Presidency policy-making. There, the Court has inserted its own judgments for that of Executive Branch, claiming the legislative framework that created individual agencies (through which the Executive works) lack the specific power to impose regulations with which SCOTUS does not agree. In this, they are, again, ignoring the existing precedent of affording Chevron deference to administrative action because they do not agree with the policy.

It is reasonable to say the five are thirsty for the opportunity to put their own mark on American history, to right whatever they see as historic wrongs on programs and policy making. Take a deep breath; here are a few other cases to keep your eye on over the next several months:

303 Creative LLC v. Elenis is similar to the old “I won’t bake a cake for a gay couple” case we had several years ago. Under Colorado law, it’s illegal for a business to discriminate against LGBTQ customers. The plaintiff here claims it violates her religious beliefs to require her to serve gay customers. Conservatives have been increasingly insistent that those who profess religious reasons can occupy a space free from many regulations the rest of us must observe. This decision could formalize more carve-outs to civil rights legislation.

Students for Fair Admissions Inc. v. President & Fellows of Harvard College: Yet another lawsuit against affirmative action, in this case brought on behalf of Asian students who believe their admits are depressed because of Harvard’s outreach to other minorities. The Plaintiff here, Students for Fair Admissions Inc., is an organization dedicated to ending affirmative action wherever it can find it, and to providing logistical support and funding for litigation against targeted schools. It’s a fairly good bet that the new conservative supermajority will be sympathetic here, while ignoring every other type of admission preference.

Biden v. Texas is a fascinating case where a “Trump Judge” in Texas insisted that President Biden did not have the power to change former President Trump’s “Remain in Mexico” immigration policy. I’d watch this one closely. The idea that a President has no right to alter a predecessor’s policy or policies is something that should be treated as a hand grenade by SCOTUS. The logical, practical ruling would be to side with President Biden, even if the conservatives on the Court prefer Trump’s approach. To do otherwise could demand that SCOTUS determine the validity of any policy changes after a Presidential transition. As even this Court doesn’t want to show that much blatant favoritism, I think Biden will get the right to make his own decisions, but it’s not a certainty. Look for a tortured opinion built on Rube Goldberg logic if it breaks against him.

New York State Rifle & Pistol Association v. Bruen: Potentially a blockbuster on gun rights, this case challenges New York’s 108-year-old (not a typo) gun-control law that puts limits on concealed carry. Oral arguments last November seemed to presage a more limited ruling, preserving a State’s right to some limited areas in which it could restrict guns, but the ambitious agenda of the five most conservative Justices, plus their expressed affinity for firearms, makes this one a wild card.

Let me make one final point. No matter how much we tell ourselves that we live in a free country, our government has grown immensely powerful. It flies down the road at potentially unsafe speeds, relying on humans to make key decisions that have real-world impacts. Not all of those humans are reasonable, not all impartial, not all possess a greater emotional maturity than a three-year old urging his Daddy to go faster. But even so, elected officials get to make those choices, and, so long as they are lawful, judgment on their judgments belongs to the people, not to the courts. What the courts owe us is consistency, fairness, and impartiality.

I happen to have Hamilton on speed dial, and on this we agree:

Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

Your Rights In The Rearview Mirror first appeared on on Monday, February 28, 2022

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 Michael Liss

Thursday, April 14, 2022

Lincoln's Imperfect Perfection

by: Michael Liss

In the Bushido code, the samurai were said to have identified with the cherry blossom particularly because it fell at the moment of its greatest beauty, an ideal death.

It is one of the remarkable coincidences of history that the anniversary of Abraham Lincoln’s assassination often comes at the very peak of the cherry blossom season.  In many respects, he, too, died at the moment of greatest beauty—right after he had delivered his “with malice towards none” Second Inaugural Address, right after he had seen Richmond and was mobbed by grateful freedmen, right after Lee had surrendered to Grant, right after there were no more battles he could win.  

The historian Richard Hofstadter once wrote, in his essay Abraham Lincoln And The Self-Made Myth that “The Lincoln legend has come to have a hold on the American imagination that defies comparison with anything else in political mythology.”  

That legend, which Hofstadter likens to a Christ-like assumption of the sins of mortals, followed by their redemption through his martyrdom, is one half of the consensus historian’s construct about how we think about the Civil War.  The other half is best embodied in Robert E. Lee, graying, aristocratic scion of a famous family, kind as a master, brave and brilliant as a reluctant warrior.  

This iconography creates a fascinating, yet discordant picture.  Jefferson Davis is nowhere to be found—he’s a cold and crabbed man who lacks the élan and nobility to exemplify what the South “really” was.  And Grant is invariably portrayed as stolid, relentless, a winner because of overwhelming force, not greater virtue.  Even the scene at Appomattox plays into this.  Lee, unwilling to expose his men to further losses, agrees to surrender.  He approaches, at the agreed-upon time, in his best dress uniform, mounted on his magnificent horse, Traveller.  Grant, stoop shouldered, wearing a private’s tunic, dusty from the field, boots muddy, arrives a half an hour later.  They talk briefly of old times, and Grant offers generous terms and honors, which Lee graciously accepts.  Lee, with great dignity, rides off to his men.  

It’s a wonderful image that allows both sides (and, as I have been reminded a number of times by people a little more Southern than my Bronx birthplace, there are still two sides) their respective heroes, and their respective fantasies of what might have been—a peaceful, respectful reconciliation.  But, the war doesn't end this way without a final sacrifice, and Lincoln is it.  Just a few days later, John Wilkes Booth makes his way to Lincoln’s seat at Ford’s Theatre, fires the shot that ends Lincoln’s life, and elevates his legend. That the assassination took place on Good Friday, and during Passover (Rabbis of the time likening it to Moses being permitted to see, but not enter, the Promised Land) gives it an even more powerful emotional tug. 

Not everyone mourns.  Lincoln is not an immensely popular figure among the powerful.  He is opposed by both Northern Democrats (he’s just won reelection against his former General of the Army of the Potomac, John McClellan) and by many of the more committed abolitionists in his own Republican Party. Lincoln is too hot for some, too cool for others.  Both the steadfastness of his purpose, and the gradualism of his approach have made him many enemies. Northern Copperheads have never stopped hating him, and the Radical Republicans want a far more punitive response than Lincoln’s call for reconciliation and “binding up the nation’s wounds.” 

In the South, reaction was often careful.  A few think it’s a miraculous turning point, some of the Southern newspapers exulted, and Jefferson Davis reportedly said “If it be done, it would be better that it be well done.”  But many others (Lee amongst them) worried about not just the anger of the North, but also the loss of Lincoln as a buffer—they know he stands between them and a vengeful Congress.  And they hate Lincoln’s Vice-President, Andrew Johnson, a border-state Democrat, despised and feared as a traitor to his own people.  

But the common people have a different reaction than the more calculating political class. Perhaps they felt Lincoln was one of their own; literally millions gather to see his train, look at him as he lay in state, and mourn. They seem to understand something that eludes the merely ambitious—they stand with him as he stood with them.  One of the most remarkable tributes came from the residents of Lahaina, in the Hawaiian Islands; the people “weep together with the republic of America for the murder, the assassination of the great, the good, the liberator Abraham Lincoln, the victim of hell-born treason—himself martyred, yet live his mighty deeds, victory, peace, and the emancipation of those despised, like all of us of the colored races.”

What about Hofstadter’s “Lincoln Myth”? Does the reality match the image of fallen saint?  Last week, I asked what kind of man was Lincoln—what did he really believe?  What is it about him that allowed him to transcend his own of-the-period but anachronistic attitudes?  How could a man who, in 1858, in the Charleston debate, state “I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality” yet nevertheless inspire the gratitude “of those despised, like all of us of the colored races.”

I think he had two unusual qualities, hard to find in any person, much less in any politician.  The first was his essential tolerance. In contemporary discourse, we have bastardized the term.  Some use it in a pejorative way, with “tolerance” a synonym for “indulgence”—the habit of ascribing all bad behavior to moral weakness enabled by liberal guilt.  Others describe it as a universal virtue that must be applied to everyone—they command us to understand “root causes” regardless of actual conduct.  Lincoln, I think, embodied a different type of tolerance, one so subtle that it is almost impossible to accurately describe.  His was the tolerance of common courtesy, of accepting differences without embracing them.  He did not demand that you look like him, think like him, worship like him, or vote like him as a predicate to earning his respect for your basic human rights.  

The second was even more rare.  He truly knew himself.  In Hofstadter’s words “Lincoln was shaken by the Presidency.”  He was humbled by his duties, oppressed by his responsibilities, taxed to the extreme by the enormity of the job. This immensely gifted man, of extraordinary intelligence and remarkable character, was “shaken by the Presidency.”

If there is a Lincoln Myth, there is also a Lincoln Reality—a man of remarkable tolerance, and an acute and humbling sense of his own limitations. And one, having given every last ounce of devotion to doing an impossible task as best as he could, falls like the cherry blossom, at the peak of (imperfect) perfection.  

This was first published on April 14, 2015. Renewing it today because Lincoln remains eternally relevant.

Wednesday, March 30, 2022

Biden, Breyer and Babka

 by Michael Liss

I come to praise bakeries past and present. And older men and women faithfully carrying out their duties to their grandchildren.  Of bakeries, once too many to count in my city, but, like old loves, we remember Glaser’s (closed every August so the family could return to Germany), Gertels (each cake caused a local sugar shortage), and Lichtman’s (the Times called it “The Da Vinci of Dough”). Still with us, Moishe’s and Andre’s, Veniero and Ferrara’s, and for the breads of your dreams, Orwashers and Eli’s.

I could go on. In fact, I could go on for some time, but there’s a Supreme Court nomination and the Midterms looming, and duty comes before carb-loading. To be more precise, in this essay, it comes both before and after carb-loading but, be patient with me while I take the strings off the boxes and plate the pastry.

As a President gets top billing, even over the dearly departed French pastry shop on First with the spectacular petit fours and crusty rolls that launched a thousand crumbs, it’s time for me to turn to Joe. However, I will not be insulted if you skip the meal and go directly to dessert. You will find it below the fold.

When I think of Biden, I can’t get out of my mind a quote attributed to Lincoln: “Elections belong to the people. It’s their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”

America did decide; it saw the fire, saw two deeply flawed candidates, and picked Joe. Like every other President since John Adams, Biden stepped into his predecessor’s shoes, and his predecessor’s challenges. Adams had the impossible task of replacing Washington. Lincoln a secession crisis. FDR inherited the Great Depression; and Truman, WWII. Ike got Korea and McCarthyism; JFK, the Cold War; LBJ and Nixon, Viet Nam; and so on. What’s more, regardless of where they start, few get through their own terms without a fresh crisis or two.

Then, there’s Joe Biden. A raging inferno (or something substantially more scatological) is what he stepped into. From pandemic to poisoned politics, Joe went in with both feet.

Them’s the breaks. If you want the job, you have to be prepared to clean up on aisles three, four, and five simultaneously, as well as deal with anything new walking in the door, including, in his case, a failed but still smoldering insurrection. Joe got elected, and it was his turn.

You have probably read somewhere that Biden is the worst President of all time, an unbroken litany of awful. He’s a terrible speaker. He doesn’t give press conferences. When he does, he talks too much. He called the esteemed Peter Doocey an SOB, which sent so many commentators into space that Elon Musk is looking for royalties. One prominent conservative (out of concern for his feelings, let’s just call him Rumpelstiltskin) offered, “I still haven’t stopped shaking after last night’s attack on the free press.” Can we find this man and send him some bath (and smelling) salts?

Biden, irrespective of his myriad flaws (of which there are myriad myriads), is basically a decent man with a conscience, and so he personally apologized to Mr. Doocey, which of course, showed how weak he is. Biden is also weak with the Chinese, who are about to take over the world. He’s weak on the Southern border, where massive caravans of evil-doers lurk in Fox-built Potemkin Villages, ready to surge towards the Rio Grande at a moment’s notice. He’s weak on the Ukraine crisis, where GOP Shadow Cabinet Secretary of State Tucker Carlson is making his thoughts and prayers known to his viewers while angling for an Order of Lenin. He’s weak on inflation, because the American Rescue Plan helped too many workers, which creates upward pressure on wages. Finally, he’s weak on the cost of fast food, and Granny is now skipping her blood pressure pills to get her Big Macs.

Into this mess, the Gods just delivered to Joe a golden apple. Stephen Breyer, Associate Justice of the Supreme Court, has announced his resignation. Before I dive into the politics of this, just a few words about Breyer. He’s an old-fashioned man in the best sense of the word, considerate, tempered, deliberate, and courteous.

Breyer also believes in what ought to be the central mission of the Court, to view the law impartially and in a non-partisan way. In a lecture at Harvard Law, he spoke of the challenges: “The justices tend to believe that differences among judges mostly reflect not politics but jurisprudential differences. That is not what the public thinks.”

Breyer is right, the public doesn’t think it. When the content of the lecture was made public, he was (not so gently) mocked as antique and worse—but there is an aspiration there that expresses the highest possible function of the Court. It must be seen as a fair arbiter, an honest broker, and not merely an arm of one party and one ideology. It can lean in one direction or another, but the moment it is perceived as just muscle, it loses its place of respect.

So, why does Breyer’s resignation provide an opportunity for Biden, since it will not change the ideological makeup of the Court? For one thing, it lessens the angst of many Democrats over Breyer’s staying, and having Mitch McConnell select yet another Justice. It also reminds Democrats of the essentialness of sticking together, working towards a better result, and focusing, as the Midterms loom, on recruitment, voter registration, messaging–and tangible accomplishments. Democrats need this, and Biden needs it. Current political polling is gruesome, redistricting and Democratic retirements are making things much harder, and there remains the looming threat that states with GOP-led governments will flip the votes they can’t suppress. Democrats are simply going to have to fight, and fight hard, for every seat, from the school board to the Presidency.

There is also a reason beyond just political rhetoric. The public needs to see the implications of the choices they make, and this Supreme Court is going to make it clear just what those choices mean. In a matter of a few months, this Court will hand down a series of decisions which are going to frighten some people to the core. Rights many thought they had, principles that have stood for longer than many of us have lived, will evaporate. This isn’t just about abortion and who gets to use what bathroom, as many folks think. It has the potential to reorder the relationship between the individual and the state, rearrange the interrelationship of the three branches of government, elevate those who claim faith-based objections over the rest of us, encourage vigilantism with regard to enforcing personal morality, and strike at things that many of us believe are no one’s business but our own. This Court needs a youthful, intellectually and temperamentally vigorous champion of the rights that we are about to see lessened or even extinguished. Breyer, as accomplished as he is, would not be that person. Perhaps Biden’s nominee will be.

Of course, there is the little matter of getting that nominee confirmed, and the GOP outrage machine is already at a roar because Biden reaffirmed his promise to select a Black woman. Having just gotten past their annual holiday ritual of reciting a single Martin Luther King quote, they are now left to decide amongst themselves if any at all dare cross party lines and admit that any Biden choice might actually possess, in abundance, the “character” to which Dr. King was referring. My cynical take is that, if McConnell thinks he can’t get either Sinema or Manchin on board, he will let a couple of his folks off the leash, but only after Biden’s nominee is thoroughly roughed up as inadequate and illegitimately selected.

Whoever the nominee is, however brutal the process, it’s just going to have to run its course, because Biden can’t put out every fire. Likely he can’t put out most of them. He needs to choose where to leverage his office best.

If I were he, I might start by going to a bakery (he can call me for a specific suggestion). Last month, at the request of my wife and (adult) children, I made a pilgrimage to one I hadn’t been to since before the start of the pandemic. It was at some distance, but the need for high-quality cake was becoming paramount. Go, I was told, and bring back the essentials of life. Multiple texts flowed in from the interested parties: Marble cake, sponge cake, cookies with cherries on them, kichel, cookies with sprinkles, chocolate cigars, cinnamon cigars, cupcakes (vanilla cake with vanilla icing, with sprinkles and not). Along with the shopping list, I must also bear in mind that our children have their own places, and so the quantity purchased should be reflective of the need to satisfy multiple households.

I grabbed multiple bags (and a pith helmet), and set off on my trek. Machete in hand, I hacked my way through the forest, and stealthily approached the store. My heart sank for just a moment when I saw the gates up and little light emanating from within. Seriously? Then I remembered the gates were always up and it was always dim inside. I passed the window, noting what and what was not on display (possible a cupcake crisis), opened the door, and there, in all its thoroughly unrenovated state, was my personal El Dorado.

I was masked, of course. Behind the counter, in the same cheerfully unrenovated state as I had last seen her, was the tiny, energetic woman who had been waiting on me since the time I was pushing strollers through the door. For brevity and privacy I’m going to call her Mrs. B (B for Babka). In all my visits, I have never heard anyone use her first name. It was always Mrs. B, regardless of the status and age of the customer. “Good morning, Mrs. B, how are the rolls?” “Hello, Mrs. B, can I have four slices of rye?” “Mrs. B, is the cheese danish fresh?”

Mrs. B was not a woman to exaggerate. If something wasn’t good, she would tell you. She and I had a routine down, unchanged by time. Since I came infrequently and ordered a lot, we took it slowly, and as customers came in, I would tell them to go ahead of me. This invariably stretched out the visit (something that never bothered me), but this time we had a snag—in fact, two snags. First was an insuperable issue: No sponge cake. There was something, that, to my eye, looked like sponge cake, but she wouldn’t sell it to me. “No good,” she pronounced. As to marble cake, there was no fresh marble cake in the store, but she could get some. Could I wait?

Of course I could wait. Imagine me not waiting, what kind of a father and a husband would I be? So Mrs. B got on the phone to the owner, who told her 45 minutes, and I agreed.

I knew it wasn’t going to be 45 minutes. I was pretty sure the owner was coming from Brooklyn. But it’s never a sunk cost to wait in a bakery for the marble cake of my wife’s dreams. Besides, I was enjoying myself. Mrs. B was a gas. More customers, more me telling them to go ahead, more “Hello Mrs. B, do you have a little seven layer cake today?” Occasionally, people would come in, sit in the metal folding chair for a few minutes to catch their breath, observe the world around them, and maybe buy half a seeded rye. With some customers (the more bilious ones), Mrs. B stuck to business, but with others, she was cracking jokes, smiling, making a little gossip with the change. Think New York version of Floyd’s Barbershop in The Andy Griffith Show.

All through this, Mrs. B started to fill the non-cake portion of my order. Pounds and pounds of cookies, packed into boxes. Kichel in a giant plastic bag. Jokes, plenty of them. Occasionally, I’d step outside to breathe without the mask on, and update my wife. 45 minutes passed, no cake, and Mrs. B started to get worried about my health. Maybe I had low blood sugar? She kept passing me cookies (to keep up my strength, no doubt.)

She talked about her life. She had grandchildren and great grandchildren. How many, I asked? “You don’t count,” she said. “Bad luck.” Her oldest son, a doctor, was retiring at 70. (Yes, you can start doing the math). She’d been working in the store since 1955 (more math). Emigrant from Poland, although she didn’t have much of an accent, which suggested she came as a child, which would have had to have been before September 1939 (even more math). About Mr. B, no word, and I didn’t ask.

The more time I spent, the more she reminded me of my grandmother, who lived to her late 90’s. Short, tough, sharp, funny, not giving in to age. Whatever the world had thrown at her, she’d managed.

An hour in. I paid her for the non-marble cake portion; it might have been approximate, since Mrs. B uses a lined piece of paper and a heavy black pencil. Thought about finding an ATM. Updated my wife. Walked back in, and Mrs. B let me in on a secret. She watched Fox. She didn’t think COVID was dangerous—her son the doctor had told her that the hospitals were recording other types of deaths as COVID because insurance paid more. This information did not cause me to go screaming out the door. When you are waiting for the essential marble cake, these things seem of very little import.

Time stretched on, so she passed me some babka. Not on my list, but OMG, seriously good chocolate babka. Behind my mask, I couldn’t stop grinning. A Fox-watching Covid-doubting 90-ish woman who cracks jokes and feeds you—there is no way you are arguing with her. Certainly not while she’s laughing a child’s laugh, like the sound of a brook, and you are laughing with her.

75 minutes in, the Boss, and the sheet of marble cake arrives. It is magnificent. How much do I want? Enough for one box? Two? I go for three…just about 6½ pounds of it. Mrs. B. smiles at me, smiles at her boss, and we ring it up. As always, in cash, and as always, I told her to put the change in one of her charity boxes. An old-fashioned store like this doesn’t leave a jar for tips, it leaves tins for education, for the poor, to plant a tree, etc.

We were done. I filled my bags with goodies, thanked Mrs. B one more time, and headed for a bus….way too many pounds to handle walking back. Scents of lemon and cherry and chocolate emerged. Plus an unmistakable babka bouquet that was not to be ignored (of course I bought one, it would have been wrong not to). While I had not succeeded in getting everything on everyone’s list, the core of the mission had been accomplished. The family would be fed. Hunter-gathering at its best.

You might reasonably ask why I’ve gone on this long about a trip to a bakery. It’s because it was all so incredibly unrushed, so filled with the littlest of details and of small, brief, human interactions. It was all so normal, so decent, when both are in short supply.

I have a feeling that Joe Biden gets the idea of simple neighborliness. If he does, if he can find a way to help return us to something closer to a community, then a lot of the drama infecting so many facets of our lives might move to the fringes, where it belongs. With that, perhaps we can find value again in what was given to us, including the idea that we are one country with a common legacy and destiny of freedom.

Justice Breyer says America is “an experiment that’s still going on,” based on its Constitution and founding principles. “My grandchildren and their children, they’ll determine whether the experiment still works. And of course, I am an optimist, and I’m pretty sure it will.”

I’m an optimist as well. I’ll leave it at that, for now.

Biden, Breyer and Babka first appeared on and you can find my work there every four weeks at