Senator Franken Demonstrates The Absurdity Of Gorsuch’s Judicial Philosophy And The Dishonesty Needed To Hide It

The Senate Judiciary Committee today voted to move the confirmation of Judge Neil Gorsuch to the full Senate. The New York Times also reported that “Democrats Now Have Votes To Filibuster Gorsuch Nomination.” It will be an interesting week.

When she announced her opposition to the confirmation of Neil Gorsuch, Senator Claire McCaskill wrote:

I cannot support Judge Gorsuch because a study of his opinions reveal a rigid ideology that always puts the little guy under the boot of corporations. He is evasive, but his body of work isn’t. Whether it is a freezing truck driver or an autistic child, he has shown a stunning lack of humanity.

“He has shown a stunning lack of humanity” is, well, a rather stunning statement about anyone nominated to the Supreme Court. But if you look at the two cases she cited, a reasonable person can conclude that humanity comes in a distant second to Gorsuch’s strange judicial philosophy and the record that accompanies it.

I want to focus on the freezing truck driver case, decided just last year in Gorsuch’s 10th U.S. Circuit Court of Appeals in Colorado. The case involved a company called TransAm Trucking and one of its drivers, Alphonse Maddin. The driver eventually won his case, and here’s how the judges who ruled in his favor summarized the bare facts involved:

In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.

Below I have posted Senator Al Franken’s discussion of this case today during the Judiciary Committee hearing, as he gave his reasons for opposing Gorsuch’s confirmation (which echoed McCaskill’s concern about Gorsuch siding with corporate interests over the interests of people). You will not find a more powerful argument against confirming Gorsuch. If you needed no other reason—and there are plenty—to oppose the nomination of an “originalist” or “textualist” Judge Gorsuch, the case of the freezing truck driver would be enough. Before you watch the short clip below, I want to share with you part of Gorsuch’s dissent in the case:

A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.

“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Senator Franken discussed that last bit of nonsense from Gorsuch, since, after all, the judges who sided with the truck driver were also applying the law. So something made them apply the law one way and something made him apply it another. What was it? Was it merely a fondness for corporations over people? Or was it a flaw in his judicial philosophy? I want to share with you something Joplin blogger Jim Wheeler wrote the other day, defining Gorsuch-Scalia judicial philosophy magnificently:

Originalism…amounts to attributing to the founders a kind of vision they could not possibly have had and it denies to the law the application of common sense…

As you will see in the video below, Senator Franken’s passionately makes the point that whatever it is that Gorsuch uses to interpret the law and decide cases, common sense has nothing to do with it. And because common sense has nothing to do with it, absurdity—and the need to be dishonest to hide the absurdity—is the result. Watch:

“Epistemological Murk”

Epistemology is the study of knowledge: what we know, how we know it, how we know we know it, and how to keep track of it without driving ourselves crazy.”

since there is a lot of moonshine, much of it toxic, being produced by the Tr-mp regime and its supporters in Congress and on cable news, let’s distill a simple truth from the cloudburst of orange urine—the lies, outrages, and absurdities—that has soaked our already piss-saturated political landscape since January 20: Republican leaders are pretending Donald Tr-mp isn’t mentally ill because they want to cut taxes for the wealthy, weaken or eliminate programs for the poor and working-class, and make it harder for people who oppose that reactionary agenda to vote against it.

Sadly, after a sober distillation of the uncomfortable facts, that simple truth is what is left, the essence of what is going on. After Tr-mp’s Electoral College-only victory in November, Speaker Paul Ryan falsely claimed Tr-mp “just earned a mandate.” But Ryan’s imaginary mandate for Trmp is very real for Paul Ryan. He sees the opportunity to get done what Image result for trump discusses north korean missile at mar a lagoonly seemed like a Randian dream before. And that’s why there is a very strange tolerance for very strange behavior, like when Tr-mp scandalously equated a murderous Vladimir Putin with past American leadership, or when he, on Saturday, discussed with dinner guests—in public at Mar-a-Lago—the launch of a North Korean missile. If any Democrat had said or done anything like that, Washington would still be on fire with conservative rage.

Republicans, as I have said many times, are the only ones who can put a stop to the madness we have seen and are seeing—including Tr-mp’s solicitation and toleration of Russian interference in our election and what may be, as the Flynn controversy demonstrates, a plan for compensation to the Russians for helping elect Tr-mp. But GOP leaders have their partisan and ideological priorities, which clearly don’t include protecting the integrity of any of the nation’s institutions from a sick, shady man who most of them know is a sick, shady man with a lot of not-so-sick but oh-so-shady men and women around him.

Image result for ted lieu on joy reidSince I have written about the issue for months now, I was glad that on Sunday, three different times, the issue of Tr-mp’s mental health came up, in a serious way, on television. On MSNBC, Congressman Ted Lieu, of California, brought up Dr. John Gartner, a psychotherapist formerly affiliated with Johns Hopkins University Medical School. Dr. Gartner, who specializes in certain personality disorders, said recently:

“Donald Tr-mp is dangerously mentally ill and temperamentally incapable of being president,” says Gartner, author of “In Search of Bill Clinton: A Psychological Biography.” Tr-mp, Gartner says, has “malignant narcissism,” which is different from narcissistic personality disorder and which is incurable.

Congressman Lieu, after quoting Dr. Gartner, properly asked, “What do I do with that as a member of Congress? Do I ignore that? Or do I raise the issue?” Well, Lieu isn’t ignoring the issue. He is filing a bill that would require a shrink in the White’s House. About Tr-mp Lieu said,

His disconnection from the truth is incredibly disturbing. When you add on top of that his stifling of dissent, his attacks on the free press and his attacks on the legitimacy of judiciary, that then takes us down the road toward authoritarianism. That’s why I’ve concluded he is a danger to the republic.

On another Sunday program, NBC’s Meet The Press, Senator Bernie Sanders chimed in about Tr-mp’s behavior, saying to Chuck Todd, “right now we are in a pivotal moment in American history. We have a president [sic] who is delusional in many respects, a pathological liar.” Todd asked Sanders, “Can you work with a pathological liar?” Sanders said,

Well, it makes life very difficult, not just for me. And I don’t mean, you know, I know it sounds, it is very harsh. But I think that’s the truth. When somebody goes before you and the American people, say, “Three to five million people voted illegally in the last election,” nobody believes that. There is not the scintilla of evidence. What would you call that remark? It’s a lie. It’s a delusion.

Just one of many lies. One of many delusions.

On CNN’s Sunday program, Jake Tapper asked Senator Al Franken about his prior remarks on Bill Maher’s show during which Franken claimed that in private some Republican senators have “great concern about the president’s [sic] temperament.” Here’s how that went:

TAPPER: So, I know that was comedy, but is it true that Republican colleagues of your express concern about President Tr-mp’s mental health?


Image result for al franken on cnnTAPPER: Really?

FRANKEN: Yes. It’s not the majority of them. It’s a few.

TAPPER: In what way?

FRANKEN: In the way that we all have this suspicion that—you know, that he’s not—he lies a lot. He says thing that aren’t true. That’s the same as lying, I guess. He—you know, three million to five million people voted illegally. There was a new one about people going in from Massachusetts to New Hampshire.

TAPPER: Thousands and thousands in a bus, yes.

FRANKEN: Yes. And, you know, that is not the norm for a president of the United States, or, actually, for a human being.

Senator Franken, my early choice for president in 2020, also said to Tapper:

I think that Tr-mp and his group are trying to make Americans more afraid. I think that’s part of how they got elected: Just make us more afraid.

Of course that is true, absolutely true. That’s why Tr-mp described, and still describes, America so darkly. But what is also true, and perhaps more important in the long run, is that Tr-mp makes Republicans in Congress more afraid, afraid they are just a Tr-mp tweet away from being primaried in two years. And that fear of losing their jobs, at least for those who see how mentally disturbed Tr-mp is, is enough to keep their thoughts about Tr-mp’s instability to themselves or limit their comments to whispers behind closed doors.

I have quoted three Democrats in Congress on the subject of Tr-mp’s mental health and have criticized Republicans for staying quiet about what is so obvious. Now, to finish up, I want to turn to a philosopher I respect very much. Daniel Dennett told The Guardian:

The real danger that’s facing us is we’ve lost respect for truth and facts. People have discovered that it’s much easier to destroy reputations for credibility than it is to maintain them. It doesn’t matter how good your facts are, somebody else can spread the rumour that you’re fake news. We’re entering a period of epistemological murk and uncertainty that we’ve not experienced since the Middle Ages.

I suppose only a philosopher thinks in terms of “epistemological murks,” but that is exactly where we are. In the Middle Ages, such murks were survivable. Here in the Nuclear Age, they may not be. Truth and sanity must prevail, but there is no guarantee it will. As Dennett said, reputations for credibility have to be maintained. Right now they are under siege nearly everywhere we look. But Dennett has hope:

I’m an eternal optimist. Every Republican senator has an opportunity to grow a spine and stand up for truth and justice and the rule of law. My other hope is that if Trump has to choose between being president and being a billionaire, I think he may just resign.

I’ll leave it to the reader to calculate the odds of either one of those two hopes becoming reality. But I’d bet a tax cut for the rich that the odds are long.

What John Belushi Tells Us About Bob Woodward

Like a funhouse mirror, Woodward’s prose distorts what it purports to reflect.”

—Tanner Colby, co-author, Belushi: A Biography

A as a connoisseur of news reporting, I have never quite recovered from what I considered a genuine scandal related to Bob Woodward and his demonstrably false suggestion that a high official in the Obama administration—turns out it was Gene Sperling—threatened him for reporting the truth about the origin of the sequester.

I just can’t let it go, even though we have had a pretty good discussion about it on this blog.

Now comes Tanner Colby, writing for Slate (“Regrettable: The troubling things I learned when I re-reported Bob Woodward’s book on John Belushi”) and offering the perfect description of Woodward’s weaknesses as a reporter and as an author. If you care about journalism, about history, about how it matters who gets to write history and how it is written, then you should follow the link and read Tanner Colby’s most readable and enlightening piece.

And it helps if you remember how talented was comedian and actor John Belushi.

Most people who follow politics don’t remember that Woodward wrote a book about Belushi, who died of a drug overdose at 33. The book, which carried the sensationalistic title,  Wired: The Short Life and Fast Times of John Belushi, was not well received by those closest to the Saturday Night Live comedian, as Colby makes clear:

When Wired came out, many of Belushi’s friends and family denounced it as biased and riddled with factual errors. “Exploitative, pulp trash,” in the words of Dan Aykroyd. Wired was so wrong, Belushi’s manager said, it made you think Nixon might be innocent.

That Nixon reference, of course, is to the role that Woodward, along with his Washington Post reporting partner Carl Bernstein, played in the Watergate scandal that brought down the 37th President of the United States.

Helping to destroy the most powerful man in the world was no small feat for a young reporter, and Woodward has managed to mostly stay on top of the reading world with his sixteen books to date, a dozen of them top bestsellers, all of them about politics and government—except Wired.

Tanner Colby was hired by Judy Belushi, John’s widow, to help her write “a new biography of John,” a job that eventually “turned out to be a rather fascinating and unique experiment.” Colby explained:

Over the course of a year, page by page, source by source, I re-reported and rewrote one of Bob Woodward’s books. As far as I know, it’s the only time that’s ever been done.

And what Colby found, when coupled with what we learned about Woodward during the Gene Sperling episode, is quite revealing:

Wired is an infuriating piece of work. There’s a reason Woodward’s critics consistently come off as hysterical ninnies: He doesn’t make Jonah Lehrer–level mistakes. There’s never a smoking gun like an outright falsehood or a brazen ethical breach. And yet, in the final product, a lot of what Woodward writes comes off as being not quite right—some of it to the point where it can feel quite wrong. There’s no question that he frequently ferrets out information that other reporters don’t. But getting the scoop is only part of the equation. Once you have the facts, you have to present those facts in context and in proportion to other facts in order to accurately reflect reality. It’s here that Woodward fails.

Colby’s account of a love scene Belushi did in the box office failure Continental Divide is a must read, especially considering the tragic effect that failure had on Belushi and how Woodward “missed the real meaning of what went on.”

But perhaps the most telling description of Woodward’s style as a writer, and his inability to sometimes see the green forest for all the trees with gray bark, is when Colby notes the famous reporter’s reputation as being “little more than a stenographer” :

In Wired, he takes what he is told and simply puts it down in chronological order with no sense of proportionality, nuance, or understanding.

To make that point, and to then send you away to the source, I conclude with this passage related to Belushi’s legendary problem with drugs:

Of all the people I interviewed, SNL writer and current Sen. Al Franken, referencing his late comedy partner Tom Davis, offered the most apt description of Woodward’s one-sided approach to the drug use in Belushi’s story: “Tom Davis said the best thing about Wired,” Franken told me. “He said it’s as if someone wrote a book about your college years and called it Puked. And all it was about was who puked, when they puked, what they ate before they puked and what they puked up. No one read Dostoevsky, no one studied math, no one fell in love, and nothing happened but people puking.”

Keep that in mind the next time you crack a book, or read an article, with Bob Woodward’s name on it.

“There Is No Crisis”

E. J. Dionne, one of the top liberal columnists in the country, has joined the small but growing chorus of folks who refuse to accept that America is fiscally “broke” and that we’re in a time-to-panic crisis.

As I have said repeatedly, we’re not bankrupt and we shouldn’t be making decisions in panic mode.  And I believe this point needs to be hammered in the heads of the American people.

Dionne wrote on Monday:

We’re not broke. Yes, nearly all levels of government face fiscal problems because of the economic downturn. But there is no crisis. There are many different paths open to fixing public budgets. And we will come up with wiser and more sustainable solutions if we approach fiscal problems calmly, realizing that we’re still a very rich country and that the wealthiest among us are doing exceptionally well.

He continued:

We have an 8.9 percent unemployment rate, yet further measures to spur job creation are off the table. We’re broke, you see. We have a $15 trillion economy, yet we pretend to be an impoverished nation with no room for public investments in our future or efforts to ease the pain of a deep recession on those Americans who didn’t profit from it or cause it in the first place.

Dionne references a speech given by Senator Al Franken last December, when the fight over the Bush tax cuts for the wealthy was dominating the news.  And what a speech it was. I don’t know how I missed it, but I did. I recommend all go watch it.

Here are some highlights:

According to the Economic Policy Institute, during the past 20 years, 56 percent of all income growth went to the top one percent of households.  Even more unbelievable-a third of all income growth went to just the top tenth of one percent. 

When you adjust for inflation, the median household income actually declined over the last decade.  During those years, while the  rich were getting richer, the rest of working America was struggling to keep up.   We’ve been growing apart.  And the American people know this.  And now, working Americans are forced to listen to the Republicans as they demand “Everyone needs to share the pain.  We’re all in this together.” 

The IRS published a study analyzing the tax returns of the wealthiest 400 Americans.  Together, in 2007, they brought in nearly $138 billion dollars.  Want to take a guess at what their average effective tax rate was?  Just over 16 and a half percent.   Is that really sharing the pain?  Are they really sharing in the pain just like everybody else?  

He pointed out that,

Bill Clinton inherited the largest deficit in history from George H. W. Bush and then handed George W. Bush the largest surplus in history.  And George W. Bush nearly doubled the national debt.  He also handed Barack Obama the largest deficit in history.

And part of the way Bill Clinton handed over the largest surplus in history (as well as 22.7 million new jobs) to Bush was through the Deficit Reduction Act of 1993, which set the marginal rates that the Bush tax cuts repealed.  Not one Republican voted for that responsible tax policy, and Franken quoted some prominent Republicans at the time:

Newt Gingrich.  Remember him?  On August 5, 1993, he said, “I believe this will lead to a recession next year.  This is the Democrat machine’s recession, and each one of them will be held personally accountable.”

Senator Phil Gramm.  Remember him?  He said, “The Clinton plan is a one-way ticket to recession.  This plan does not reduce the deficit…but it raises IT and it puts people out of work.”

Governor-elect John Kasich said, “This plan will not work.  If it was to work then I’d have to become a Democrat.” Congratulations, Ohio, on electing a Democratic governor. 

When you hear Republicans (and some Democrats, too) talk about sharing the pain of fiscal responsibility, ask yourself just why they aren’t talking about the Deficit Reduction Act of 1993, one of the most successful pieces of legislation in the past 40 years, one that turned deficits into surpluses while the economy was creating  millions upon  millions of jobs.

Ask yourself why anyone who claims to be serious about our so-called fiscal crisis refuses to acknowledge that not that long ago we had a tax policy that corresponded with our spending, and that Republican economic philosophy destroyed that delicate balance.

The answers won’t surprise, of course.  That Republican economic philosophy, which failed most of the country, does have a small, but powerful, collection of beneficiaries.

And I can confidently say that nearly everyone reading this today is not among them.

The Corporate Internet?

“Allowing corporations to control the Internet is simply unacceptable. ”     

—Senator Al Franken 

Tomorrow, according to Senator Al Franken, is a big day, if you care anything at all about whether corporations will ultimately control the Internet.  The Federal Communications Commission will meet on Tuesday to discuss new regulations related to the issue of “net neutrality.”   Here’s Franken:

As a source of innovation, an engine of our economy, and a forum for our political discourse, the Internet can only work if it’s a truly level playing field. Small businesses should have the same ability to reach customers as powerful corporations. A blogger should have the same ability to find an audience as a media conglomerate.

This principle is called “net neutrality” — and it’s under attack. Internet service giants like Comcast and Verizon want to offer premium and privileged access to the Internet for corporations who can afford to pay for it. 

Franken complains that FCC Chairman Julius Genachowski, an Obama appointee, has been courting the very corporations he is supposed to be regulating in order to get them to endorse the FCC’s newly proposed regulations, which Franken says are “worse than nothing.”  He says, 

grassroots supporters of net neutrality are beginning to wonder if we’ve been had. Instead of proposing regulations that would truly protect net neutrality, reports indicate that Chairman Genachowski has been calling the CEOs of major Internet corporations seeking their public endorsement of this draft proposal, which would destroy it.

No chairman should be soliciting sign-off from the corporations that his agency is supposed to regulate — and no true advocate of a free and open Internet should be seeking the permission of large media conglomerates before issuing new rules.

Although I don’t want to press this point beyond the appropriate boundaries, in too many ways, the Obama administration—vilified on the right for being a socialist “regime”—resembles the prior administration, in terms of its deference to corporate and business interests. 

That’s not to say that the administration should be the enemy of those interests, it’s just to say that the administration should be the friend of the consumer, of the public, of we the people. 

Many of us believed that when we sent Barack Obama to the White House, he would act as a check against moneyed interests, protecting the public—via the regulatory arm of the government—from corporate domination.  But in the case of the FCC and net neutrality, what is happening seems like a familiar Bush-era scenario: make regulations so innocuous as to get corporate support for them. 

After discussing the various ways that large media giants could manipulate the Internet to make profits for themselves, Franken ends with this:

Imagine if a cable news network could get its website to load faster on your computer than your favorite local political blog. Imagine if big corporations with their own agenda could decide who wins or loses online. The Internet as we know it would cease to exist.

That’s why net neutrality is the most important free speech issue of our time. And that’s why, this Tuesday, when the FCC meets to discuss this badly flawed proposal, I’ll be watching. If they approve it as is, I’ll be outraged. And you should be, too.

The Right-Wing Hate Sweepstakes

Admittedly, I have been highly critical of contemporary conservatism’s caustic critiques of President Obama and the Democrats. I have even claimed that the level of vitriol directed at Obama is to some extent historically unprecedented.

Now, I’m not so sure.

clinton in kosovoRecently in Kosovo, an 11-foot statue of Bill Clinton was unveiled to honor our 42nd president. Kosovo’s ethnic Albanians were celebrating Clinton’s role in launching NATO’s bombing campaign against Yugoslavia in 1999 that saved their lives and culture from the attempted ethnic cleansing perpetrated by the Serbians. As some chanted “USA!,” “USA!,” Clinton was honored as a hero.

The attention on President Clinton’s good deed—which, of course, was also America’s good deed—was not prominently featured on right-wing media outlets. All of which made me start to remember the days of the Clinton administration, most of which were filled with endless attacks on Bill and Hillary emanating from people I considered to be my ideological allies at the time.

I don’t want to go into all of the lurid details, so I will just cite a couple of passages that sort of bring back the flavor of those times:

Timothy Noah, writing a review of former conservative David Brock’s, Blinded By The Right, for Slate in March of 2002, said:

We know, well before picking up Brock’s book, that an appallingly well-financed hard right was obsessed with smearing Clinton, and that a large proportion of Clinton’s hard-right accusers failed to conform to hard-right notions about morality, being either adulterers, homosexuals, or begetters of aborted fetuses. We know further that Clinton was placed deliberately into a perjury trap, whereupon he committed perjury.

Senator Al Franken (take that Rush Limbaugh!) wrote in his book, Lies (And The Lying Liars That Tell Them):

…did you know that Hillary Clinton is a lesbian? And that, despite her homosexuality, she was having an affair with Vince Foster? Who then had to be murdered to cover up Whitewater? And did you know that Foster’s execution was only one small part of a killing spree that claimed nearly forty lives, including those of former Commerce Secretary Ron Brown and the wife of an Arkansas state trooper who apparently didn’t “get the message”? And did you know that Clinton, to finance his own gargantuan cocaine habit, had struck a deal with the CIA and the Contras to smuggle duffel bags filled with coke into Arkansas?

If you didn’t, you weren’t reading the Wall Street Journal editorial page, the American Spectator, or the Washington Times.

Reading these short summaries of the 1990s reminded me of some things I had forgotten, like how fervently publications like the American Spectator had attacked Clinton, and then how those unfounded attacks made it into the mainstream media, sort of like how today some of the nonsense on Fox “News” makes it into the New York Times. Conservatives learned in the 1990s that if you throw enough dook at the wall, some of it will eventually stick.

Franken also reminded me of just how disrespectful conservatives were of the office of the presidency, as they employed epithets for Clinton like: “scumbag” (Rep. Dan Burton from Indiana), “sociopath” (Craig Shirley), “perpetual preener” and “rapist “(George Will), “craven miscreant” (Michelle Malkin).

Clinton ChroniclesAdditionally, Franken reminded me of the little publication, The Clinton Chronicles, which attempted to link the Clintons to “dozens of murders.” According to Franken, The Clinton Chronicles sold over 100,000 copies, “thanks in large part to the Reverend Jerry Falwell, who cofinanced, publicized, and distributed the video… had to begin “The Clinton Body Count,” as the bodies of people killed by Bill Clinton were starting to pile up—the last count was “close to fifty.”

Damn! How could I have forgotten that?

So far, Sean Hannity hasn’t had anyone on his program accusing Barack Obama of murdering one of his cabinet members (like when Sean had on Chris Ruddy, who wrote, The Strange Death of Vince Foster). But stay tuned. It’s early yet, and so far no member of Obama’s cabinet has died in a “mysterious” plane crash, so the right-wing hasn’t had much to work with.

At this point I will have to recant my previous claim, and give an edge to Bill Clinton in the Right-Wing Hate Sweepstakes. But, as conservatives continue to document Obama’s plan to destroy American culture—gifted to us by white Europeans—Obama is at least gaining on him.

(Photo credit: Valdrin Xhemaj/EPA)

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