Trump, Ryan, and Hold-your-Nose Unity

Today’s summit in Washington, DC between Donald Trump and Paul Ryan is the clash of the man who has harnessed an angry Republican base with populist  (and often not Republican) positions, and the man who protects the Republican congressional majority and is a member of the ideology-driven Republican elite.

Paul Ryan can’t not back Trump as the presumptive nominee. But right now, he has serious concerns about trump’s tone and trump’s positions. As to tone, Trump’s agitating hyperbole and insults have turned vast swathes of the electorate off. He is blowing up the 2012 Growth and Opportunity Project, rally by rally.  As to positions, Trump has campaigned on ideas that are opposite to long-held Republican positions on trade, foreign policy and Planned Parenthood and new positions on transgender rights. He has been wobbly at best on abortion.

Because of gerrymandering and population patterns, the Republican Party has an almost insurmountable advantage in the House. That said, Ryan knows that he has to find a way to get behind Trump. And Trump knows he needs the Republican Party behind him to have any hope of effectively bringing a challenge to Clinton and the Democratic party’s machinery and money.  Trump and Ryan will make their peace eventually.  It will take time and energy and compromise, and it will be a fragile peace at best.  But for both sides, hold-your-nose unity is a lesser evil than a fractured Republican party simply giving the Presidency – and perhaps Congress – away to Democrats.

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Being a woman in the U.S. is still economically disadvantageous. Donald Trump’s playing, then doubling down on the “woman card” criticism of Hillary Clinton is not only a strategic error with his unfavorability with women in a deep ditch, but nonsensical in the face of the facts.

The “woman card” debate is also a clear division between Republicans and Democrats on the existence of and solutions for systemic bias, whether that’s on the basis of gender or race or sexual orientation. Chief Justice John Roberts famously said in 2007 in a school desegregation case, Parents Involved v. Seattle School District No 1, that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This encapsulates the GOP view, also espoused by Carly Fiorina. Which is, let’s assume everybody has equal opportunity whether or not the long and historic bias against certain groups, and its after-effects, still impacts their opportunities or not.

When asked at the September 16, 2015 debate what woman she would add to the $10 bill, Fiorina declined to give a name and suggested that women weren’t a “special interest group.” Her point, echoed by Cruz and Kasich, is that economic growth – jobs, basically – lift all boats. While that’s true, the actual facts show that we women in fact have a long way to go:

• Women are less likely to have health insurance from their employer.

• Women are less likely to have retirement savings plan.

• Women earn 78 cents on the dollar to men, and this hasn’t changed since 2001.

• Women make up 51% of the population. 19.4% of members of Congress are women. 5% of Fortune 500 CEOs are women.

The GOP isn’t helping any, from Trump and Carson’s recent suggestion that Harriet Tubman get sidelined to the $2 bill, to the fact that the GOP’s presumptive presidential nominee almost has a campaign plank devoted to sexist commentary.

Hillary Clinton understands that women feel equal but are not treated equally, and that gender equality lifts all boats. She understands that reproductive rights are economic rights. And that words and acknowledgement matter. Tubman on the $20 bill, our first female president. Female leadership begets female leadership. If women finally have a significant hand in making the rules, then they can win the game too.

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Harriet Tubman Trips Up Trump & Carson

The historic news that there would finally be female faces on U.S. currency only highlighted the GOP’s enormous problems with women. The day of the announcement, both Donald Trump and Ben Carson denigrated the change to honor abolitionist Harriet Tubman, with Carson suggesting a woman should go on the – basically non-existent – $2 note (out of the $1.2 trillion in currency in circulation, less than 0.001% are $2 bills) and Trump saying it was “wrong” to replace Jackson with a woman, calling it “political correctness.” When asked at the September 16, 2015 debate what woman she would add to the $10 bill, Carly Fiorina declined to give a name and suggested that women weren’t a “special interest group.” I agree that what’s important is an economy that drives the success of all people, including women, but changing our currency to reflect the heroes of our past – all of them, and not just the white men, doesn’t turn women into a special interest group, and isn’t “political correctness.” Rather, it is changing our institutions to actually reflect America’s history and reality.

Speaking of women, Trump’s unfavorability among women nationwide is about 70%, maybe as high as 74%. He’s winning despite women, and is predicted as GOP candidate to lose the women’s vote by the biggest margin in 50 years (remember Barry Goldwater?). On the other hand, women are carrying Clinton to victory in delegate-rich states like New York (where she garnered 61% of women votes) and they are expected to do the same in future primaries, including the next “super Tuesday” (CT, DE, MD, PA, RI).  In 2012 the GOP clearly identified its own “gender gap” in the Growth and Opportunity project, but seems unable in this cycle to make meaningful change in its outreach. And the gender gap isn’t necessarily about traditionally women’s issues like abortion. Gender gap trends show women prefer policy positions that “help” the vulnerable.  And that means wide-scale deportations and eviscerating Obamacare are not going to play well with this essential voter bloc.

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Sanders Doing Double Duty for the GOP

Sanders and his supporters today are to be laying the blame for the Brooklyn voter purge and the inability for Independents to vote in the NY Primary at Hillary Clinton’s feet.  They’re either doing it directly, or by inference (Clinton is the establishment, these rules and snafus favor the establishment, ergo, it’s her fault). This isn’t a new tactic – in his last rally in NYC, on the banks of the East River overlooking the Manhattan Skyline (I was there), he pointed the finger at Clinton for the power of the big banks, corporate welfare, and money in politics.

But Sanders (and his supporters) who call an administrative snafu and state party rules “suppression” and blame Clinton are being both disingenuous and dangerous.  First, he and Clinton equally share the blame for these events – which is to say, no blame at all.  Second, it masks the real voter suppression that happening in GOP gerrymandering, and as seen in the recent Supreme Court case, Evenwell v. Abbott.  There, conservatives tried to  increase the number of rural, mostly white districts in Texas at the expense of urban, largely Hispanic ones (no prizes for guessing why).  Thankfully, they failed, although the court left them avenues open to them to achieve their goal. I’ll be watching to see what develops. As should you.

Sanders can, and should go on.  He has the money and he has the support.  But he’s doing double duty for the GOP with his relentless attacks on Clinton, from her speeches to her “qualifications.”  When Governor Scott Walker tweets agreement with Sanders over Clinton’s judgment, the Democrats have big problems.  Sanders might also consider some down ballot fundraising.  His “revolution” will require a democratic majority in Congress to have a chance of success.  If he will not support those races, and Democrats cannot take back the House and/or Senate, even a General Election win for Sanders will mean his vast promises to bring great change to our system of government will have withered and died before his Presidency can breathe life into them.


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Conservatives Now 0 for 2 at Supreme Court After Today’s Voter Re-Districting Case

Today’s unanimous Supreme Court decision in Evenwel v. Abbott is a big victory for Democrats, and leaves alone the long-established understanding of “one person, one vote” guaranteed by the Fourteenth Amendment and settled by the Court in the 1960s. The question at issue was what does “one person, one vote” actually mean? When creating legislative and congressional districts, do you count the number of people in the district, whether they can vote or not, or the number of eligible voters?  The plaintiffs alleged that counting people dilutes the voting power of citizens residing in districts that are home to smaller concentrations of non-voting residents.

The partisan political issue in the case, and frankly, the reason that it was brought by the conservative “Project on Fair Representation”, is that a shift towards counting eligible voters and away from counting people, regardless of whether they can vote (think children, green card holders, prisoners, illegal immigrants) will mean that in many states there will be a shift of power away from urban areas (that generally have a higher percentage of non-eligible voters and tend to skew non-white and Democrat) towards rural areas (that tend to skew white and Republican). This was their ultimate aim.  The court didn’t go there.  Justice Ginsburg said that by counting all people in a district, it reflected the idea that “state legislators should be responsive to the concerns of all of their constituents, not just those who can vote.”

The unanimity of the decision means that the lack of an Obama Court nominee makes no difference to the outcome here.  But, now conservatives are zero for two after this decision, and the recent union dues case, Freidrichs.  These losses, plus a somewhat likely Clinton-Trump match-up in the General Election (though we’ll see what happens in the Wisoncin primary…) can only increase pressure on the GOP to halt their obstructionism and salvage what they can from a Garland appointment.


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Trump “Punishment” Abortion Comment Actually Mainstream GOP Position

Trump’s off the cuff comments on abortion this week show his lack of readiness for office, but also reflect GOP thinking on the issue.

Donald Trump’s quadruple flip-flop on abortion this week started with the notion of the procedure as criminal, and women as criminal actors to be punished.  It ended with an acknowledgment that the law is the law.  To be so utterly unprepared on such a vital issue, and to lack real policies and positions on this (and many other vital issues) is an affront to the office of the Presidency.  “Make America Great Again” never rang more hollow.  And even though the “punishment” position was walked back, and loudly disavowed by pro-lifers, the GOP and fellow GOP candidates Ted Cruz and John Kasich, it hues more closely to the real position of the GOP than they probably want to admit, where a majority of the U.S. populace believe that it should be accessible.

HB2 in Texas (argued before the Supreme Court on March 2) as well as many other anti-abortion laws disguised as “women’s health and safety” laws continue to spring up in Red states, fueled by anti-abortion groups that draft the legislation. They’re the latest in a long line of incrementalist challenges to Roe v. Wade, which have the intent of chipping away at access to abortion – by requiring ultrasounds, pamphlets, consent, waiting periods, and now, ambulatory-level clinic standards, termed measures to protect women’s health, which have not shown to make the procedure any more safe, are certainly not required where the abortion is induced by medication, and have the (desired) effect of shutting down clinics where the procedure is performed, but also where other reproductive health services are offered, particularly to low-income women.

The punishment position, taken to its logical conclusion, is that any abortion is murder, and any act by a woman, intentionally or otherwise, while pregnant, that harms or potentially harms an embryo or fetus, is a crime.  This view has a name, and a movement.  ”Personhood Amendments” to State Constitutions (that have gone onto the ballot, and failed, in Colorado, Mississippi, Florida, and elsewhere), seek to give constitutional protections, like the right to life recognized in the Fourteenth Amendment, from the moment of conception, and to therefore circumvent the rights of women recognized in Roe.  And the notion that it’s out of the mainstream of GOP thinking is pure fallacy.  Paul Ryan advocated for this position in the 2012 General Election cycle, and it was a part of the GOP’s anti-abortion plank.

The left is painted as callous and godless for siding with a woman’s right to choose.  But we reject government intervention into this most personal of choices.  We understand that having control over reproductive health is fundamental to full and meaningful economic participation in society. And we see these incrementalist measures for what they really are.  Punishing a woman for the most agonizing of choices, a choice that is for now, and hopefully for always, Constitutionally protected.


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After Supreme Court Loss Cruz Advocates Other Ways to Disempower Unions

Ted Cruz on Thursday said on a Wisconsin radio show that he supports national “right to work” legislation, just days after the Supreme Court in Friedrichs v. California Teachers Association essentially upheld the requirement that non-members pay dues to public unions (because it was a 4-4 tie).

The two issues go hand in hand.  Right to work laws (25 – mostly Red – states have them on the books now, including Gov. Scott Walker’s Wisconsin) are designed to eviscerate unions, and if the Supreme Court had struck down the non-member dues requirement on Thursday in Friedrichs, it would have had the same effect.

Cruz wants to get rid of unions for the same reason he wants to never grant citizenship to illegal immigrants – they lean democratic. But it’s more than that. Unions are engines of regulation (historically they have pushed hard for workplace health & safety protections), and they are considered to drive up costs for business,  both of which are anathema to conservatives.

The constitutional basis for Cruz’s position can be found in the First Amendment’s guarantee of freedom of association, and the Fourteenth Amendment’s guarantee of life, liberty and property – and the idea that the right to “sell” your labor by making a contract for it is a property right.  The Supreme Court visited this idea frequently in the 1930s and 1940s and recognized it in the famous Lochner v. New York decision (where the Court decided that a law limiting the number of hours a baker could work – yes, it was about bakers’ hours – violated the rights of the bakers to enter into a contract, which presumably could have had them working 23 hours a day if they wanted to).  After the Great Depression, the Court increasingly upheld health and safety laws – which conservatives still say infringe on the “right” to work.

There is mixed data on whether right to work states have better wages, insurance coverage, and job growth.  Despite  the fact union membership is in decline (mostly due to corporate power and right to work laws), most Americans have a favorable opinion of Unions (51% in 2013 according to Pew), on the basis that they protect working people. Also according to Pew, 64% of Americans agreed that unions were necessary to protect working people (though 57% also agreed that unions had “too much power”).

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NC Anti-LGBTQ Law Ups Ante for SCOTUS Obstructionism

The ACLU yesterday filed a federal lawsuit aiming to strike down North Carolina’s anti-LGBTQ law on the basis that it violates the equal protection guarantee of the 14th amendment as well as Title IX.  Today, North Carolina’s Attorney General Roy Cooper has concluded the bill is unconstitutional and has said he won’t defend it.  This is akin to Obama Administration Attorney General Eric Holder refusing to defend DOMA, which the Supreme Court found unconstitutional, and overturned.

North Carolinians broadly support laws protecting against gender identity discrimination (over 60%), and the balance of harms in the law – protections in bathrooms for women versus the legalization of outright discrimination on the basis of gender identity – is the same unicorn as voter fraud – a mostly-myth conjured up by Republicans to serve their policy preferences.

Taking aim directly at Justice Kennedy’s position on issues like same sex marriage and abortion, the ACLU argued in its lawsuit that allowing discrimination based on gender identity strikes at the heart of the autonomy and self determination the Constitution protects.  As we saw in today’s 4-4 tie in Friedrichs v. California Teachers Association which was a huge blow to conservative anti-union groups, having no ninth justice, particularly a “moderate” like Justice Garland, is continuing to harm Republicans, now legally as well as politically.  I’m not saying Judge Garland would necessarily be the fifth conservative vote should the NC law make its way to the Supreme Court (as it’s likely to do), or that Judge Garland would have struck down the Union dues in Friedrichs and handed a colossal defeat to them. But it’s possible.  And with a progressive Justice from a President Clinton backed by a majority-democrat Senate more likely by the day with Trump as the GOP favorite, I expect many in the GOP are reconsidering their obstructionism, and coming to the understanding that Judge Garland, who has a long record of deference to the Constitution and the law, is their last best chance of not “losing” the Court for years to come.


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After Brussels, Trump and Cruz Embrace Fear, Abandon Law

Since we first learned of the attacks on Brussels, the air has been acrid with the dangerous, illegal and unconstitutional promises of the GOP front runners, Senator Ted Cruz and Donald Trump.

Cruz’s comments about patrolling Muslim neighborhoods shows not only his ignorance of the assimilation of the Muslim community in the United States, but also that he is willing to push aside the protections of the Fourth Amendment (prohibiting illegal searches and seizures) and the Fourteenth Amendment (guaranteeing equal protection under the law for all) for certain Americans.  It’s hypocritical, considering he’s campaigning on fidelity to the Constitution.  It’s clear that Cruz cares more about some Constitutional Protections – such as religious liberty (for Christians, anyway) than others.  Surely fidelity to the Constitution means fidelity to the entire Constitution?

Beyond assimilation and constitutional protections, Cruz’s “patrol” comment also shows a lack of understanding about the conditions that are leading to the terror attacks on the European continent that simply do not exist in the United States.  Although clearly, this threat is real and rising, Cruz is inciting fear based on incorrect premises:

  • European borders are porous.  You can drive from Brussels to Damascus (and back) almost unchecked.  In the US, the vast majority of our border is highly controlled and accessed only through air traffic.
  • European countries do not have robust security sharing mechanisms., in part because privacy laws in each country are particularly strong (Germany and France in particular) and because some countries’ resources are limited (Belgium being one of them).  Post 9-11, the US has dramatically increased its resourcing of anti-terrorism activities, and shifted its strategy towards sharing across agencies as well as across local, state and federal government.
  • Muslims, particularly from former French Colonies in North Africa, live together in impoverished communities in cities like Paris and Brussels.  These neighborhoods have been described as ghettos, soaked in crime and desperation, where and upward (and outward) mobility is all but impossible.  They are a breeding ground for contempt of western culture, isolation, and radicalization. In the United States, Muslims, like many other other religious and ethnic groups, are much more assimilated, with equal economic opportunities and freedoms. There is simply less isolation, and less “them versus us.”

Donald Trump also rushed in, within minutes of the news from Brussels, calling for a closure of U.S. borders (later – of course – retracted).  The terrible events of Brussels also provided an opportunity for Trump to again raise his pro-torture views, which are both ignorant and dangerous.  The Geneva Conventions and the U.N. Convention Against Torture, to which the U.S. is a signatory, prohibit the acts he speaks of.  As does  U.S. federal law, and the U.S. Military Code of Justice.  Republicans are angered at the extent to which President Obama has acted unilaterally – well, Donald Trump is proposing unilateral – and clearly illegal – action, immediately upon achieving office.  Besides the fact that the U.S. Military would follow no order that violates federal, military, or international law, a curious twist is that U.S. law allows victims of torture to sue their tormentors in U.S. courts.  Could a President Trump get sued  for carrying out his threats?

Finally, both Cruz and Trump are wrong to criticize President Obama for not flying home after the Brussels attacks.  Terrorists want to disrupt, and they want to spread panic and division.  By acknowledging the tragedy, vowing to keep fighting, but continuing business as usual, the President takes power from the terrorists.  To do the opposite is to give them exactly what they desire.

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Abortion Re-enters the Judicial and Political Fray

It’s hard to overstate the importance to women’s reproductive and economic freedom of the abortion case before the Supreme Court today.  The question in Whole Woman’s Health v. Hellerstedt is whether a Texas law, H.B.2,  that requires abortion clinics to: (1) meet ambulatory surgical center requirements, and (2) have doctors with local hospital admitting privileges, places an “undue burden” on a woman exercising her fundamental constitutional right to seek an abortion.  If the Supreme Court allows the Texas law to survive, it will eviscerate access to abortion in Texas and across Red states – because copycat legislation is either on the books, or waiting in the wings.  To say it will return Texas to the time of Roe v. Wade is not rhetoric.

The good news is that Anthony Kennedy is the Justice who holds the deciding vote on whether H.B.2 is constitutional.  I believe he will side with the liberal wing of the court and strike it down.  Here’s why.

Kennedy was one of the architects of Casey.

Although Kennedy’s record in abortion decisions is inconsistent, he was one of the three authors of Casey, the 1992 case that upheld Roe’s fundamental constitutional right to have an abortion, and set out the “undue burden” standard that the Texas regulations are being examined under.

The court was far more conservative when Casey was decided.

Casey was decided when 8 out of the 9 justices were Reagan appointees, and with the United States submitting an Amicus Brief supporting the abortion regulations (presented by Kenneth Starr).  In Casey the court showed resistance to undoing Roe’s precedent which established the fundamental right to seek an abortion, and I expect that resistance is even stronger now, nearly 25 years after Casey and 43 years after Roe.

The weight of medical opinion supports striking H.B. 2 down. Medical and scientific evidence are of vital importance to the Court.

In Hellerstedt, there are a vast number of amicus submissions from medical authorities, including the AMA,  the American College of Obstetricians And Gynecologists, and the American Academy of Pediatrics, stating that the Texas regulations that relate to admitting privileges and surgical center requirements are not in fact medically necessary to protect women’s health – and that by dramatically limiting access to abortion, they in fact endanger women’s health.  In Casey, the court heeded the medical community’s advice and altered the trimester framework set out in Roe.  It is likely to do so again.

This is a decision at the heart of Kennedy’s views on the liberty of “personal autonomy” and “self-determination” which he believes is constitutionally protected.

And doesn’t the pro-choice lobby know it.  Kennedy is the author of decisions striking down laws banning same sex marriage (Obergefell v. Hodges) and same sex conduct (Lawrence v. Texas).  In both opinions, he described the behavior outlawed by the states as being protected by the Constitution as “central to personal dignity and autonomy.”  In Hellerstedt, amicus briefs from constitutional scholars including Harvard’s Lawrence Tribe parrot Kennedy’s words right back at him in support of striking H.B.2 down, describing the decision whether and when to have a child as “among the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”

Also, some of the amicus briefs are intensely personal and aim to bring abortion out of the shadows, like supporters of gay rights did, successfully.  For example, 113 female lawyers wrote a brief explaining how their abortions enabled them to participate meaningfully in their careers and more broadly in their personal lives, and how this would not have been possible without access to safe and legal abortions.

H.B.2 is death to abortion access by 1000 cuts

If H.B.2 is upheld, it will be the beginning of the end for most abortion clinics in Texas and many other states.  In Texas, there will be 10 clinics for 5.4 million women of reproductive age.   Already in Missouri, thanks to laws like H.B.2, there is one abortion clinic – for the entire state.  If the court upholds H.B.2 it will open the floodgates to copycat legislation which, particularly in red states, will all but end access to abortion.

This case could have the opposite effect of what Texas desired, and MAY make it harder for states to restrict abortion.

Abortion is a “fundamental” constitutional right.  Laws that infringe fundamental rights (like free speech or freedom of religion) are normally given greater scrutiny than the “undue burden” test.  It’s not particularly likely, but it is possible that in deciding that H.B.2 is unconstitutional, the Court re-frames the “undue burden” test as  a “strict scrutiny” test, and makes it even harder to pass laws like H.B.2.  This would be a huge defeat for the pro-life movement and a huge victory for the pro-choice movement.

Whatever happens in this case, it is only going to ratchet up the pressure and rhetoric on both sides as it relates to Scalia’s replacement, the showdown between the Senate and Obama, and how voters feel about each parties’ approach on this divisive issue. Because the Court won’t issue its decision until June, it will continue to be an important part of the political dialog running right into the national conventions in July.


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