Blackcap Blog

Published at 15:23 on 17 October 2020

I am not going to go through the effort of drafting a speech in full, but what he says should mention the following points:

• During the Obama Administration, the GOP acted to frustrate not just his Supreme Court appointments, but his judicial appointments in general.
• As soon as Trump took office, the Senate eagerly enabled his administration’s filling of the resulting backlog of empty seats.
• The Trump regime has aggressively screened its nominees for ideological correctness, and much more so than any previous administration.
• Add that to the judges appointed during the George W. Bush administration, which also lost the popular vote, and a huge chunk of Federal judges, at all levels, have been appointed by administrations without popular consent.
• Therefore, court-packing is not something the Democrats wish to do; court-packing merely represents an undesirable status quo.
• All of this has been done legally; no laws were broken in doing it.
• Likewise, the law (specifically the Constitution) gives the President and Congress the right to set the size of the Supreme Court. That there be nine justices is mentioned no place in the Constitution. The size of the Court has been changed before, and it can be changed again.
• That said, changing this number is a drastic step, and doing so might well be expected to increase the already dangerous level of polarization in this country.
• Given that downside, it is therefore not a step to be taken lightly, and hopefully a step that can be avoided.
• Whether or not it can be avoided depends on the conduct of this administration, the Senate, and the Courts.
• However, if a Court, the majority of the justices which were appointed by administrations operating without the consent of the governed, legislates from the bench to further thwart the will of the governed, my hand may be forced.
• For example, I am not willing to see health care taken from millions of citizens with pre-existing conditions, and will do everything legally within my ability to prevent this. I consider this to be the only decent and moral stance I can have on this issue.
• To reiterate, I hope it doesn’t come to this.
• But, over 250 years ago, our founding fathers wrote: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”
• While I hope I will not be compelled to change the size of the Court to preserve the principle of consent of the governed, my dedication to this principle means that I cannot unilaterally relinquish all possibility of using that tool, either.
• If Republicans are concerned about packing the courts, the single most important thing they should do right now is to put Amy Coney Barrett’s nomination on hold, and not let it advance unless the winner of the coming election approves of it. No other step could do more to preserve the integrity of our courts.

Published at 08:36 on 4 October 2020

Some thoughts, in no particular order:

• • It is no surprise, given what we know of how the virus is spread and how little Trump believes in taking precautions against it.
  • That Trump has persistently refused to take such precautions undercuts his own claim of being a germophobe, a claim that he famously used in an attempt to delegitimize the alleged existence of the pee tape.
  • Trump has multiple risk factors for the disease, particularly age and obesity.
  • Trump is already experiencing symptoms, which were profound enough for him to be hospitalized. Therefore he is not amongst the lucky subset that cruise through an infection with no or only very mild symptoms.
  • Despite the secrecy surrounding his condition (and the resulting uncertainty), Trump does not appear to be seriously ill at the present time, given how he is still appearing in videos.
  • The first week is usually not the worst in severe cases, so while he may eventually prove to only have a relatively mild case, only after a week or two will it be safe to conclude this.
  • Even severe cases now typically survive, due to advances in caring for the disease. Plus, Trump has access to the best care available. Therefore he will probably survive.
  • Severe cases are still typically lengthy and incapacitating. Therefore a period of such incapacitation, where Pence has to assume presidential duties, is a very real possibility.
  • I do not think it will be possible to predict in detail how any of the above will affect the campaign, other than it will certainly affect it.

Published at 10:36 on 27 September 2020

Short answer: maybe, but probably not.

First, like all institutions in society, particularly powerful institutions, the number one priority for the Supreme Court is to preserve itself and its power. Justices know that a second Trump term would complete the descent into authoritarianism, and that it would result in a dictatorial executive branch arrogating virtually all power to itself, at the expense of the other two branches.

The most extreme thing any Democrat is proposing is to expand the size of the Court, and the Democrats probably won’t even do that, because they are possessed of an institutionalized Stockholm syndrome and value weakness; they neurotically think that being weak will help make their opponents like them. Biden has, true to form, already tried to throw cold water on such proposals. The Justices are not stupid and this is as obvious to them as it is to any intelligent observer.

Therefore, they can reasonably expect that a Biden presidency will conserve their institution’s power, just like they can reasonably expect that a second Trump term will turn their institution into a meaningless empty shell.

Second, the very act of ruling against Trump (despite the current ideological makeup of the justices) would itself furnish hard evidence in favor of the contention that the Supreme Court is an independent, nonpartisan body, further acting to increase the power and standing of the Court as an institution.

Third, the Justices all serve life terms. Unlike Republican congressmen, they have nothing to fear from Trump or the sheep that follow him.

Conservative Supreme Court justices have already ruled contrary to Trump’s wishes more than once. It is therefore not naïve to entertain the thought they might do so again.

Trump will have appointed three of the nine justices. Of the six conservatives, he will have appointed half. Justice Gorsuch has already demonstrated his independence by ruling against Trump the most of any justice he has appointed. The two ones to worry about are Kavanaugh and Barrett. To them can possibly be added Justice Thomas, who has proved himself to be a party hack more than once.

Maybe Justice Alito rules Trump’s way, too. Let’s be pessimistic and imagine he does. Roberts and Gorsuch have already demonstrated their independence, and I just don’t consider it plausible that they would make a legally-strained ruling in Trump’s favor. That makes for a 5–4 ruling against Trump. And this is with making generous assumptions for Trump; the exact margin is therefore likely to be wider.

A 9–0 ruling is in fact not out of the question! Suppose that Kavanaugh and Barrett are inclined to support their führer, but they can see which way the wind is blowing. Why cast a meaningless pro-Trump vote, which can only harm their personal reputations, when stabbing Trump in the back can better preserve it?

And yes, I know about Bush v. Gore. That was in a different era, with different particulars. A Bush presidency did not carry the plausible risk of reducing the Supreme Court to an empty shell.

I must reiterate that this is not a certain outcome, only an extremely plausible one. An important variable will be how much Constitutional compulsion there is to rule a particular way. For example, if it comes down to the Court ruling on whether the House gets to select the next president on a per-delegate basis, it is going to be very hard to rule against that, because the Constitution is so explicit about it.

Mind you, it will still be important to get out into the streets and demonstrate that a government without the consent of the governed is intolerable. That will in fact help motivate the Supreme Court to rule against Trump as a way of calming the unrest.

To sum it all up, I’m not saying that Trump will lose in the Supreme Court, only that he probably will, assuming it comes to that. An election dispute that ends up in the Supreme Court is not necessarily the slam-dunk for Trump that many seem to think it is, even in a 6–3 Court.

Published at 08:51 on 21 September 2020

Biden is giving away the store. It’s a 6–3 court.

Unless it is paired with the threat to expand the size of the Supreme Court if it is not adhered to, Biden’s request is meaningless. Any request to the Republican Party to do something just to be nice, given the last four years of GOP behavior, is not merely naïve: it raises naïveté to an entirely new level. It creates a whole new universe of naïveté.

This was in fact always the most likely outcome; the Democratic Party has a long, sad tradition of bringing knives to gun fights. I refrained from predicting it earlier because I decided to give optimism a little whirl.

Also do not expect much, if anything, on Biden’s wish list of campaign promises to pass. You think he won’t kneecap any effort to reform the filibuster, just like he’s kneecapping the political hardball necessary to save the Supreme Court right now? Think again. There is absolutely no evidence that Biden can change his ways and cease being so craven.

He’s a septuagenarian, after all, and while there are exceptional individuals who remain flexible and open-minded into their later years, most people are by that age firmly set in their ways. There really is something to the adage about an old dog and new tricks.

Voting for Biden is merely harm reduction, and is unlikely to do anything substantive to halt the ongoing decline of the American empire. It is hitting a reset button so that the current fascist gets ejected from office and the left can better prepare for responding to the next fascist to win it (which, in the wake of the inevitable failure of the Biden administration, will happen).

If you were expecting something other than shit from this shitty system, revise your expectations.

Published at 08:27 on 19 September 2020

So, the inevitable has happened. The octogenarian cancer patient (not just any cancer, pancreatic cancer, one of the worst kinds) is no longer among the living.

What happens next is that Trump will nominate a replacement, and the Senate will promptly commence the process of approving the nomination. No other scenario is even remotely plausible, sorry.

In response, Democrats need to announce a plan to unpack the Supreme Court that Trump has packed*, by expanding the number of justices on the Court, and to announce that they will put this plan in motion should RBG’s seat be filled before Inauguration Day.

Mind you, the most likely result is that the Republicans will fill the seat anyhow. If so, well, the Republicans can’t say they weren’t warned.

I must reiterate that all of this is not the path of least resistance, which is for Democrats to pitifully plead for the Republicans to be nice, the Republicans to give a middle finger in response, and for the Democrats to refuse to play hardball in retaliation. The Democrats will only do the right thing reluctantly, if compelled to by massive pressure; their specialty, and their natural inclination, is to bring knives to gun fights.

* And yes, this is how it should be phrased. As unpacking the court. Not packing it. Reject the Republicans’ narrative and put forth our own: A court with three justices nominated by a president who lost the popular vote and has never once been above water in the opinion polls is a court that has been packed.

Published at 08:21 on 16 September 2020

It’s not quite a fortnight since Labor Day, but at this stage it seems pretty clear that the pushback I speculated about last month is simply not going to happen.

Not only has the clock mostly run out, but also there have been not one but two new damning revelations about Trump: about his lack of respect for the military, and about how much he deliberately downplayed the threat of COVID-19.

And yet, silence. Trump’s enablers remain Trump’s enablers.

Face it: if by this stage there has not been a peep of opposition, there is simply not going to be any opposition to Trumpism from within the GOP, at least not until Trump loses power.

Everything I wrote in that earlier analysis still holds. Absent the pre-election opposition, Trump will attempt to prevent a free and fair election, and the preponderance of available evidence indicates he will probably be successful in this goal.

In order to have any confidence of prevailing in such circumstances, the Democrats must have an overwhelming lead. They don’t.

The polls all show Biden ahead, but he’s not ahead by much in key swing states (in fact, margins tend to be narrowing in them), and as usual the Democratic Party is doing an absolutely horrible job of campaigning: refusing to set narratives to counter Trumpist ones, refusing to distribute free yard signs, neglecting the power of social media, failing to do sufficient outreach to key constituencies such as Hispanics, etc.

There is, therefore, no reason to expect a big Biden victory, or even a Biden victory at all. It’s basically a toss-up.

None of the pundits are saying it’s a toss-up, but none of the pundits are taking into account that it’s probably not going to be a free or fair process. They’re so blinded by their tunnel-vision of specializing in the detailed analysis of Establishment electoral politics that they can’t see the bigger picture.

Published at 12:59 on 19 August 2020

The Democrats have done an exceptional job of making lemonade out of lemons, creating a slick and effective media spectacle in lieu of a standard, in-person nominating convention.

The Republicans will not do anywhere near as well as the Democrats have done, for the simple reason that their inability to acknowledge obvious facts (about COVID-19) prevented them from being able to prepare for a virtual convention as far in advance as the Democrats did.

In fact, key GOP’ers are doubtless starting to scramble like mad, now that they are realizing how badly their plans for next week’s convention fail to leverage opportunities as well as the Democrats’ plans have. It probably won’t much matter; at this stage, it’s too little, too late. To the degree that the Republicans change their plans, it will make things come off as hasty and ill-prepared.

“Fascist governments are condemned to lose wars because they are constitutionally incapable of objectively evaluating the force of the enemy.” — Umberto Eco.

Published at 13:20 on 16 August 2020

One is in Belarus, where a strongman president is refusing to leave office after cheating his way to victory in a crooked election. Here’s what CNN‘s home page has to say about what’s happening in Europe today:

Another is in Bolivia, where a right-wing “caretaker” president, who should have held elections as promised last May, has chosen to cling to power by postponing them a second time (and counting). Here’s what CNN’s home page has to say about what’s happening in the Americas today:

The Washington Post has a similar story on its home page: there is one story on the unrest in Belarus featured, and none on the unrest in Bolivia.

But of course. The rebellion in Belarus is convenient to the interests of the US Empire. It seeks to unseat a pro-Russia president and replace him with one more friendly to Western interests. The one in Bolivia, by contrast, seeks to replace a leader convenient to Western interests with a socialist inconvenient to them (the democratic socialist MAS-IPSP has consistently been leading in preference polls).

Racism likely also plays some role: one rebellion is being staged by mostly indigenous people, the other one by white Europeans.

Both rebellions rightly seek to unseat authoritarians, yet only one is convenient to the interests of Empire and Capital, so only one has the capitalist-owned domestic media expending much effort trying to instill public sympathy for it.

Published at 11:27 on 14 August 2020

Could have been better, could have been a lot worse.

Yes, she’s “a cop” (actually, an ex-prosecutor), with all that implies. Look, it’s Establishment politics here. You were expecting something other than a helping of shit from Establishment politics? Dream on. Exactly what rock have you been living under?

But she’s not an Amy Klobuchar or Tim Kaine type. She is actually one of the more politically progressive US Senators. Michael Moore (an astute political observer and no Establishment figure) really seems to like her (Facebook post reproduced in its entirety below for the benefit of those without Faceborg accounts):

Kamala Harris! Biden could’ve swung right (Susan Rice), but he swung left. Kamala is one of the most progressive Senators in the US Senate and will, as Shaun King says, be the most progressive Vice President in the history of the United States. She is and remains one of the first co-sponsors of Bernie’s Medicare for All bill. In fact, go down the list — she checks nearly every box on Bernie’s platform: Living Wage, Choice, LGBTQ+ equality, peace, child care, etc.

It says a lot about Biden that after she rightly confronted him about race in that first debate that he held no grudge, no animosity. In fact, he might say it gave him pause and a chance to consider how his friendship with segregationist Senators might have been hurtful to people of color and that, even at this age, he can change, he can do better. As progressives, isn’t that at the core of what we stand for? Isn’t that the change we are fighting for? Our belief that America can do better and that our fellow Americans will join us in this movement for a more just and equitable society? Kamala Harris is one more step in that direction.

I’ve met her a few times and I can tell you (and you know I won’t BS you on this because I pretty much despise all politicians), she’s sincere, she has heart, she’s on our side. No, she’s not you or me. But we’re not on the ballot. WE are the movement, which in the long run is what is going to get us what we need. We keep building that movement, we will succeed. And one of our missions in 2020 is to crush Trump, reclaim the Senate and bring down the system of greed, racism, misogyny and white male privilege that gave us Trump — because that, my friends, is what has thrown us into the mad, dark hole we’re in. Our movement is on fire now, tens and tens of millions of us in the streets, at the polling sites, at home, organizing online, young people at the forefront, Black America once again saving us and forcing us to be what we say we are but never were. This is our moment.

And it is now the daughter of two immigrants, born in the last ten weeks of the Baby Boom (but seemingly with the soul of a millennial), possessing skill and smarts, a woman of color who could and did obliterate Bill Barr at a Senate hearing — she and we have a chance in 83 days to do something the entire world is desperately waiting for us to do. Good on you Joe Biden, congrats Kamala, onward!

That she has the other baggage associated with her is to be expected given the nature of Establishment politics. See the second paragraph of this post.

Remember, those of us seeking radical change can never expect the Establishment’s mechanisms to easily yield it. When we vote, we vote not for what we want, but for the sort of opponent we want to face. And a Biden Administration makes for a much more favorable opponent than a second Trump term would.

Published at 10:05 on 14 August 2020

The biggest oversight in my recent post is its failure to consider any potential role the Supreme Court might play.

The Court may well play a pivotal role, much like it did in 2000 with Bush vs. Gore. As I wrote several years ago:

Nobody much likes to admit it, but the show that Supreme Court justices put on about adhering to higher principles rather than just going for what their gut wants is quite often just a show. Witness how often conservative justices forget about states’ rights the minute they are asked to rule against a state doing something they consider unacceptably too far to the left.

This principle is likely to play to the Democrats’ advantage this time, despite how the Court tilts to the right. The Supreme Court’s conservatism tends to differ from the present-day “conservatism,” which is basically just warmed-over fascism centered around a latter-day Duce. This can be seen by how conservative justices have screwed Trump over in a number of their recent rulings, by siding with the liberal minority.

Fascism really isn’t very conservative in the traditional sense of the word. In fact, fascism holds contempt for very the status quo that conservatism is based around the reverence of. Conservative justices are heavily biased towards the doctrine of stare decisis, even when this hurts Trump and the GOP.

Plus we have the institutional bias of every justice on the Court to consider: they all, with the possible exception of Justice Kavanaugh, consider the courts to be an important institution, whose co-equal status amongst the three branches is to be jealously guarded and preserved. They know that if Trump is allowed to serve a second term, he will probably run roughshod over the Judicial Branch’s independence, much as he has already done over the Legislative Branch’s.

So the incentive is strong for a majority to rule against Trump in any big dispute that comes up. Higher principles will of course be cited, but the ruling will be what it is.

At that point, the military comes into the picture. Many of the generals don’t much like Trump, either, because so much of what he is flies in the face of military culture since Truman desegregated it. At the same time, that military culture considers intervening in politics anathema. A Supreme Court ruling favorable to the Democrats neatly solves the dilemma: the generals can merely state that Joseph R. Biden is the lawful president and commander in chief, and that they are merely executing his lawful orders.

This, in turn, neatly solves the frightening dilemma faced by the anti-Trump side: that we are, by and large, disarmed and helpless, while Trumpers are armed and willing to use force. If it comes down to an armed contest between the might of the US military and random ragtag weekend militias and rogue police unions, the US military wins, handily.

This fact is obvious enough to probably take much of the fight out of the pro-Trump side. Oh, there will still be fight in them, mark my words: we will be in for a period of domestic terrorism the likes of which this country has never seen, and this in and of itself presents risks, but the immediate conflict would highly favor the anti-Trump side prevailing.

It is important to note that action in the streets will play a role here. The unrest will prompt orders from Trump that the generals are queasy about following. It will further prompt conservatives on the Court to issue a ruling against Trump, as a means of quelling the unrest. Any favorable Court ruling will, in effect, constitute the system using its means to concede the demands of a popular rebellion.

Finally, note that none of this is certain. The Republic is already far closer to death than most are willing to acknowledge, and the illness may well prove terminal. While it is possible (and likely even probable) that the Supreme Court and/or the military may save the day, it is far from certain, and in that case the American left’s pathological obsession with pacifism, and its general aversion to arming itself, will prove to have been one of history’s greatest and most tragic follies.