FU ... You Won't Steal My Country from Me

A narrative history of the events of January 6th is still hard to read. The book provides diverse voices, including police, members of Congress, and even some insurrectionists ("protestors or riots" in the author's words, but multiple members of Congress, including Mitch McConnell, called it a failed "insurrection"). The violence was horrible:

Weapons [used against the police] included hammers, rebars [metal bars], knives, batons, and police shields taken by force, as well as bear spray [meant to stop a 500-1000lb animal] and pepper spray. Some rioters wore tactical gear, including bulletproof vests and masks.

An officer later described a fellow officer being tasered. 

Rep. Markwayne Mullin (R-OK), after Babbitt was shot:

He [U.S. Capitol Police officer] was the last person in the world that ever wanted to use force like that. He wasn't wanting to do that. I know for a fact, because after it happened, he came over. And he was physically and emotionally distraught. And I actually gave him a hug. And I said, "Sir, you did what you had to do."

(Mullin later voted to object to the Arizona electoral votes, the debate over which was ongoing when they had to take a break because of the storm at the Capitol.)

People were prepared for battle:

US Park Police officers reported seeing "numerous individuals" with firearms, pepper spray, pipes, and other possible weapons. Others were wearing body armor and riot gear, carrying radio equipment, and wearing "military-grade" backpacks. Among those who were screened, the Secret Service had confiscated hundreds of prohibited items -- knives, pepper spray, brass knuckles, gas masks, Tasers, body armor, and batons.  

[The idea that the protests were peaceful is absurd. There is also clear evidence that guns were involved. Strict D.C. gun laws did help keep more people from bringing them.] 

VP Mike Pence comes off well. A staffer quoted 2 Timothy to express his actions on that day: " I have fought the good fight, I have finished the race, I have kept the faith."

A symbolic moment was now Sen. Kim (NJ) going outside of the House chamber and starting to, by himself, join in the clean-up. The official vote count was complete late in the night, hours later than necessary because of those objections. 

Trump told the protestors to "be wild" and let them be wild for hours, until telling them to leave. He was correctly impeached (10 Republicans), but only a few (seven) Republicans voted to convict. Thus, we are where we are.

The vile video, which repeated false claims about a stolen 2020 election, showed the Obamas’ heads edited onto the bodies of apes as part of a “Lion King”-themed meme that cast Trump as “King of the Jungle.”

Republicans aid and abet Trump. They now and then find something to be upset about. People like Senator Tim Scott, who suddenly is appalled at Trump's racism. I'm with him:

“This disgusting video posted by the so-called president was done intentionally,” Jeffries said. "Fuck Donald Trump and his vile, racist and malignant behavior

“This guy is an unhinged bottom feeder,” Jeffries added. “Every Republican sycophant who continues to stand by their cult leader should be run out of office.”

[The NY Daily News didn't spell out a certain word, but Jeffries said it.]

Every time Trump does something, remember it isn't just him. He is there because of his aiders and abettors.

Some -- like Mike Pence -- will have a limit and stand up at times. I doubt James David Vance would have acted like he did on January 6th. Trump 2.0 is worse than Trump 1.0.

We must continue, to quote members of both sides of the aisle on that day, not let the "thugs" or thug, as the case might be, win. 

Developing A Scientific Temper

Gauhar Raza discussed his book, From Myths to Science: The Evolving Story of the Universe, on a recent Freedom From Religion Foundation podcast. It's a weekly broadcast on Thursday with one-half news, one-half usually some guest. 

He cited a quote from the Indian founding father, Nehru, in his book, Discovery of India.

The scientific approach, the adventurous and yet critical temper of science, the search for truth and new knowledge, the refusal to accept anything without testing and trial, the capacity to change previous conclusions in the face of new evidence, the reliance on observed fact and not on pre-conceived theory, the hard discipline of the mind, all this is necessary, not merely for the application of science but for life itself and the solution of its many problems.

The Indian Constitution has a section of "fundamental duties," which includes “to develop the scientific temper, humanism and the spirit of inquiry and reform.” Among the other duties are "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures."

The fundamental duties are civic guidelines that apparently are "not justiciable." That is, they are not rights and obligations that are legally binding. Still, they provide a vision to follow. If some legal dispute arises, it also would seem reasonable to apply the law, if reasonably possible, without violating such duties.

As always, it is interesting to consider other national constitutions and laws. How do they govern and apply principles with some universal appeal?  

We should take more careful attention to such things, especially for a country that now challenges China as the most populous in the world.  

National Prayer Breakfast 

It's that time again. 

The National Prayer Breakfast, which as Stephen Colbert notes, threatens the separation of church and breakfast. It also has other issues.

Various groups encouraged politicians to boycott the event. Trump took the occasion to be horrible himself, including bashing Democrats, and selling how he is helping bring God back to this country. 

A time for politicians to join together and pray can be a useful event. It can be a benign one where they humbly respect their religious beliefs. It's possible. 

Trump goes another way and underlines why it was a tragic day in our nation when the people elected him in 2024. His profaning of religion included. 

RIP C.I.A. World Factbook

I found the CIA World Factbook a useful tool the last few years when doing research involving the countries (and territories) of the world. Others have found it a helpful tool for much longer. 

For instance, the Puerto Rico page provides basic facts. Now that page is down. There is an archived page. See here for the whole thing. 

A resource in place for over sixty years is suddenly gone. Why? Well, it's par for course with these guys.

The announcement posted to the CIA’s website offered no reason for the decision to end the Factbook, but it follows a vow from Director John Ratcliffe to end programs that don’t advance the agency’s core missions.

Its website tells us:

At its core, our mission is to gather and share intelligence to protect our Nation from threats. Our highest principles guide our vision and all that we do: integrity, service, excellence, courage, teamwork, and stewardship.

The CIA does not only collect and distribute covert information. Some argue that with the Internet, the factbook is obsolete. It is tedious to keep up to date. Why keep it?

The Internet allows for easy research. It does not remove the value of reliable, easy to access and peruse materials. The Factbook is not Wikipedia. 

Paul Musgrave, a political science professor, argues:

Killing the CIA World Factbook might seem like small potatoes, but it was a touchstone of curated facts in a sea of disinformation.

An Atlantic commentary argues it is "part of a broad war on information being waged by the Trump administration." Not part of the core mission?

The World Factbook was a public service that helped Americans and others around the globe be informed, created a positive association with a shadowy agency, and spread U.S. soft power by providing a useful service free to all. 

The sudden takedown is also part of a wider war on information. For instance:

The executive branch has removed data from its websites, such as those of the CDC, the Census Bureau, and other departments, or removed the webpages that hosted them. Almost 3,400 data sets were removed from Data.gov in the first month of Trump’s term alone.

The war on good government continues. 

SCOTUS Watch (Reform Edition)

(I forgot about the NYT article that dropped about Roberts having people sign non-disclosure agreements. But that was a voluntary policy already and there still will be leaks. 

How much really does that change things? We are concerned about other stuff, aren't we? On that, Vladeck is correct in his Thursday Substack.) 

Term Limits

Rep. Tom Barrett (R-MI), a first term Republican, proposed a Supreme Court term limit amendment as part of a wider reform package. The overall package sounds dubious but I'm okay with people seriously trying to reform the government.

The term limit amendment would set a twenty-year limit. A term limited judge could still be confirmed for another level of the judiciary. Sotomayor was both a district and court of appeals judge. A person could theoretically serve sixty years.

The amendment, as all realistic reforms are likely to be, only applies in the future. No current judge or justice would be term limited. This underlines how a term limit, however fine it is, and I support them, will not by itself be enough. 

Barrett wants to tie this with a set nine on the Supreme Court. Why should the Supreme Court, which has gone up and down from a 5-10 justice range (five never came to pass and ten was short lived) be set at some specific number? 

Republicans repeatedly are expanding state courts. This doesn't make it ideal. They do multiple bad things. But stopping any chance of expansion has to bring with it something worth the candle. 

Term limits aren't enough.

I am open to a compromise but one where the Democratic supported reform kicks in over twenty years from now (twenty years after the amendment is ratified) is not enough. For instance, we need an ethics bill. Any reform package is likely to have something I dislike. But need more. 

He also wants a supermajority amendment (2/3) to add new states. A bill banning mid-term restricting is fine. See below. This part is unconstitutional:

The bill would also require that only U.S. citizens are counted toward district apportionment and electoral votes. The census would still count all persons for other purposes.

(14A, sec. 2 says "persons" should be counted for apportionment purposes. That includes "district" apportionment. This rule would result in different districts being treated differently depending on the types of persons they have. No good.) 

Overall, it should be part of a wider voting rights bill. The three-year sunset funding idea seems too overinclusive. I am, however, game in having a debate to have Congress truly control the power of the purse. Trump has stolen it. 

Partisan Gerrymandering 

The Supreme Court (5-4) in Rucho v. Common Cause (2019) finally bit the bullet. 

After years of Justice Kennedy hemming and hawing, his successor provided the fifth vote. Federal courts will not try to determine unconstitutional partisan gerrymandering. State courts can use state constitutional provisions. And some have. 

Justice Kagan for the liberals had a strong dissent. And I understand. What truly annoyed me was that the conservatives were not consistent. 

They took away congressional power in Shelby County v. Holder to enforce the Fifteenth Amendment using vibes. If you want judicial restraint, do so consistently, please.

Federal courts can still determine that districting involves illegitimate racial gerrymandering. A lower court determined that was involved in Texas. The justices by a partisan vote overturned. 

Texas clearly had a partisan gerrymander. But that is functionally acceptable now when federal judges address the matter. Justice Alito has moved the goalposts and suggested they are generally acceptable. That, however, is not what Rucho said. 

The state, pushed by the Trump Administration which the lower court (written by a Trump nominee) found motivated by race, also redistricted mid-decade. The Constitution sets districting every ten years. 

It is not explicitly barred to do so mid-decade, but a case can be made. The whole thing has a race to the bottom feel. And Democrats, using the realistic motto that unilateral disarmament is for wussies, respond tit-for-tat. California for Texas. And so on.

If you allow Texas to redistrict to help Republicans win the midterms, there is no good reason to stop California from doing so to help the Democrats. People cynically figured SCOTUS would find a way.

They, without comment, did not grant a request to do so. Rick Hasen is happy and not too surprised. (Maybe, he is that no justice said anything.) SCOTUSblog has more on the details. 

Ultimately, this is depressing. We need nationwide election reform, including something that addresses partisan gerrymandering and mid-term redistricting. A national rule is necessary to avoid a race to the bottom. That is typical national rule dynamics.

We can debate the details, including what the current Supreme Court will deem appropriate under Shelby v. Holder. But this is not a good way to run a railroad.

Everything can be on the table. For instance, perhaps it is a good idea to expand the size of the House, which was set in place over a hundred years ago. Or some form of multimember districting is a good idea. 

Voting rights and overall republican principles should be something we can establish in a bipartisan fashion. Yes, I know, insert sarcastic metaphor here.

The point still holds. Rep. Barrett's package might not be my cup of tea. But young Republicans who will be around a long time, perhaps, willing to think creatively with some room for compromise are welcomed.

If sane people (Democrats at the moment) gain control, they very well might have a chance to be part of the solution. I'm serious. 

Any major change realistically needs some sort of bipartisan support to have staying power. A supermajority (see PPACA) might provide some chance, but when we are talking things like SCOTUS reform, we probably need more. 

Odds and Ends

SCOTUS is on its mid-winter break. 

It released its March argument schedule, which includes April 1 (birthright citizenship). See also, some of the anti-BC briefs.

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Today's Groundhog's Day and this is Black History Month. I briefly talk about that here with further links with more info.

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I watched Ted Lasso (first five episodes) on DVD around five years after most people. It does have charms, especially such a positive lead, which we need in these times. 

The two primary women (owner and girlfriend of a player) characters are well played. There are so many shows these days on so many platforms of which I see nearly none.  

Interesting book with four flawed individuals.

Someone responded to a post about an anniversary of the 18th Amendment with a "what a bunch of morons" sentiment. That's a somewhat cheap shot. 

The Struggle for Judicial Supremacy (Robert Jackson)

Imagine if someone wrote a book like The Struggle for Judicial Supremacy: A Study in American Power Politics today. Would they be confirmed to the Supreme Court, to replace the Chief Justice (someone else was elevated in-house), the next year? It might be exciting.

Robert Jackson was FDR's solicitor general and attorney general (his position when the book was released in 1940). He was a strong partisan supporter and testified in favor of the court expansion bill. Jackson includes FDR's message to Congress and radio address on that bill in the appendix. 

(Jackson skims over the controversy. He argues that a major problem was that the bill was not bluntly promoted to address misguided judicial supremacy. There was a hard-to-take argument; supposedly, it was really just a reform bill to improve the courts.)  

What is "judicial supremacy"? Each branch of government is "supreme" in its own sphere. Congress can impeach whom it wants (realistically speaking), as long as they are a federal officer. Presidents can veto what they want. In his famous Steel Seizure Cases concurrence, Jackson later discussed the broad power of the modern-day president.  

Jackson acknowledges an appropriate court concern (while noting they alone aren't involved) in protecting civil liberties. He does not reference it, as it was not yet famous, but Jackson endorses the famous "footnote four." 

(I don't think "judicial supremacy" merely means judicial review. Judicial review has its limits. Either way, being "supreme" in a certain area is not "supremacy." There is a greater meaning there.) 

His concern about "government by lawsuit" was the usage of substantive due process to, in his view, incorrectly override legislative discretion in policy matters. 

Likewise, an artificial application of constitutional provisions to rob the people's representatives of the discretion to make policy. This often had an economic flavor, so we have many cases involving employment, rate regulation, taxation, and so on. 

The Lochner Era and the battle of the New Deal were his particular topical focus. A specific concern, like now, was the lower courts, where injunctions could block government programs, even when federal law appears to deny the power to do so (tax injunctions). 

He provides an in-depth analysis of many legal disputes (after about 100 pages, I started to skim). Jackson argues that, generally speaking (again, civil liberties would be an exception), a strong presumption of constitutionality should be the rule. Eric Segall would be pleased. 

Justice Jackson had his limits in the area of civil liberties, especially after World War II. He thought there were limits to free speech, especially in the battle against fascism and communism. That is, "the constitution isn't a suicide pact." Jackson also thought there was a limit regarding the federal courts' interference with state criminal trials.  

Jackson warns that the courts have limited abilities. They work by lawsuit, argued by lawyers. Policy is not just a matter of applying legal principles, especially via specific disputes. A single dispute will not provide enough information. Litigation can also take a long time. Meanwhile, public policy is in limbo. 

He notes early on that what works for his time might not work in future days. Jackson was no originalist, though he respected history. Like FDR, he supported a "living law."

Justice Rehnquist (as he then was) in the link at the top of this entry noted that this is a "dated book." It is a project of its time. People might even have been surprised at it in late 1940. Wasn't the struggle for judicial supremacy won by FDR? Jackson knew, however, that it was a long haul. 

Imagine, for instance, what Jackson would have thought when the Supreme Court struck down the legislative veto a few years after Rehnquist wrote those words. Would he support a court expansion bill today? Either way, judicial supremacy remains bad.

First Execution of 2026

Charles Victor Thompson was sentenced to die for the April 1998 shooting deaths of his ex-girlfriend, Glenda Dennise Hayslip, 39, and her new boyfriend, Darren Keith Cain, 30, at her apartment. Cain died immediately, Hayslip lingered some. Texas executed Thompson today by lethal injection.

Thompson's final SCOTUS appeal sounds dubious:

Thompson's attorneys have asked the U.S. Supreme Court to stay his execution, arguing Thompson wasn't allowed to refute or confront the prosecution's evidence that concluded Hayslip died from a gunshot wound to the face. Thompson's attorneys have argued Hayslip actually died from flawed medical care she received after the shooting that resulted in severe brain damage sustained from oxygen deprivation following a failed intubation.

The state not only argued that this was not a new claim. It was besides the point. Thompson was still responsible for her death. Why, after all, did she need medical care? 

SCOTUS earlier today, without comment (as usual), rejected the argument. It very well might be sound as a matter of appellate review. I still would like at least a brief explanation before the final court paves the way to the deprivation of life.

I continue to find long lag times constitutionally troubling (Breyer's dissent). Over twenty-five years fits the bill. Others will be glad that "justice finally prevailed." 

The top link notes that he escaped from prison for a few days after an earlier appeal. It sounds like a result of a ridiculous laxness of security for a capital offender:

Shortly after being resentenced, Thompson escaped from the Harris County Jail in Houston by walking out the front door virtually unchallenged by deputies. Thompson later told The Associated Press that after meeting with his attorney in a small interview cell, he slipped out of his handcuffs and orange jail jumpsuit and left the room, which was unlocked. Thompson waived an ID badge fashioned out of his prison ID card to get past several deputies.

Thompson committed a horrible act, murdering two people in cold blood. It was a personal crime, a result of his anger and revenge, which makes it somewhat less blatant as a "worst of the worst" situation. He was in prison for approaching thirty years. That is not nothing justice-wise.

Few will cry over his execution, of course, and he is now mostly a statistic. The first execution of 2026.

I might not provide deep dives for each execution this year. Perhaps, only those that receive SCOTUS review like this one will be handled. Time will tell.