Inside Man's Final Take On Humanity Is So Wrong

 I don't think there are any serious spoilers here.  Inside Man (on Netflix) is going where it's going, no major surprises.  

At the end,  Stanley Tucci, as Jefferson Grieff, gives a short soliloquy on the theme "We're all murderers given the right situations."

I just want to push back on that belief.  Particularly since it will give lots of already hyped up MAGA folks more justification for violence and murder.  

Is every human being capable of murder under the right conditions?  NO.  What about being capable of killing?  I think more people could kill another under the right conditions, but for many the conditions would have to be extreme indeed.  

From a Chicago Tribune column by Rabbi Marc Gellman:

"In biblical Hebrew, as in English, killing (harag) and murder (ratzah) are two different words with two very different moral connotations, and the commandment uses the Hebrew word ratzah, which means that the proper translation of the commandment from Hebrew into English is, "Thou shalt not murder." The difference is crucial.

Killing is taking a life. Murder is taking a life with no moral justification. Murder is morally wrong, but there is wide moral agreement (not complete agreement) that some forms of killing are morally just. . ."

This is more or less consistent with a number of other writings I saw on the topic.  

But Grieff's take (the Tucci character) is that every person is capable of murder, and the examples in this short Netflix series are not even extreme.  They're more about stupid decisions getting way out of hand.  We've got a beloved (in his community) vicar who apparently loves his wife (and she him) as well as his son.  And then he makes a series of terrible decisions.  

I'm with 

"Anita Singh of The Daily Telegraph [who] said, "Moffat can throw any amount of good lines or clever little plot twists into this show, but it is built on a flaw so fundamental that it's impossible to get past it."[5]"  (from Wikipedia)

Under normal social conditions, a relatively small percent of our population will ever become murders.  Probably a few more might actually kill someone.  I'm not making this up.  The United Nations Office on Drugs and Crime says that in 2017, world wide, 6.1 out of 100,000 people were murdered.  

That's less than one percent.  And we know some murderers kill more than one person, so the percentage of murderers is lower than the percentage of people murdered.  I'd note that in the Americas, the rate of murder was almost three times the world average at 17.1 per 100,000.  

In a Zombie Apocalypse?  Probably the percent will go up, if killing Zombies counts as murder, but it would be most likely in self-defense.  

So NO!  Most people are not capable of murder.  They might be capable of killing another human being if circumstances got really extreme.  The circumstances in Inside Man were not extreme and the people involved made really stupid decisions that I doubt the real human beings those characters were meant to portray would have made.  

(Am I saying religious leaders aren't capable of murder?  Not at all.  Many have taken such positions because of the status attached and are capable of such evil actions as promoting laws that ban abortions in all circumstances.  Those aren't real men or women of God.  These are people who want power over other people, over women.  The vicar in the series was not presented as that kind of man of God.)

"If an explanation contradicts the sense of who a person is, it can be damaging. There should be more attention paid to the way people describe their own distress."

"If an explanation contradicts the sense of who a person is, it can be damaging. There should be more attention paid to the way people describe their own distress."

This comes from a September 18, 2022 LA Times interview of writer  Rachel Aviv [Mental illness, as told by the patients].  The book features four people with mental health problems, talking from their own experience.  

There are lots of interesting thoughts, but this one grabbed my attention most.

I couldn't help but think about gay and transgender people having other people trying to deny their stories.  And it hit me.

People who react so strongly to LGBTQ folks are trying to deny evidence that contradicts their own world view.  Making LGBTQ people disappear, helps keep their own world view whole.  

Of course, that goes for lots of other attempts to censor, oppress, and otherwise hide that which contradicts people's dogma.  In these four tales, people with mental health problems are disbelieved because people want to believe that science can cure them or perhaps to deny the possibility they may be or become mentally ill without a way out.  Defund the Police disrupts peoples belief that police will protect them.   The Catholic Church denying Galileo's proof that the earth goes around the sun.  Everyone who ridiculed Darwin because Evolution was at odds with the story of creation.  

Of course, though maybe not obvious,  the first part of the quote refers not only to the patient (in this case) but also to the person who denies the patient's story.  

People say there may be no reasoning possible with hardcore Trump supporters.  But perhaps simply asking them to explain their world view might make their grievances understandable.  You needn't believe it,  you probably can't alter it.  But listening is the first step.  For them and for us.  I know a serious conversation for an hour might help a true believer see this "liberal" as not embodying their stereotypes.  

That's it.  That's all I have to say.  

Looking For Queen Elizabeth II In Invisible Cities

Queen Elizabeth II from
National Portrait Gallery

The news of Queen Elizabeth II's death comes as I'm reading Italo Calvino's Invisible Cities.  Calvino's book imagines the tales that Marco Polo told Kublai Khan about the cities Polo had visited, many in Khan's empire, many not.  

Polo laments the impossibility of accurately describing these cities.  He raises questions about how to merge the past and the present,  the apparent and the invisible, the body and the soul of the cities he's visited.  Nothing is as it seems, or at least nothing of importance is.  His stories remind me of ethnographer Clifford Gertz' 'thick description".  The stories would suggest  caution taking too seriously the people explaining the meaning of Queen Elizabeth II's passing.

Let me give you an example. I also ask you to slow down.   Calvino wasted no words.  Read each word.  Maybe even read the passage twice.  

"In vain, great-hearted Kublai, shall I attempt to describe Zaira, city of high bastions.  I could tell you how many steps up the streets rising like stairways, and the degree of the arcades' curves, and what kind of zinc scales cover the roofs;  but I already know this would be the same as telling you nothing.  The city does not consist of this, but of relationships between the measurements of its space and the events of its past:  the height of a lamppost and the distance from the ground of a hanged usurper's swaying feet;  the line strung from the lamppost to the railing opposite and the festoons that decorate the course of the queen's nuptial procession;  the height of that railing and the leap of the adutererer who climbed over it at dawn;  the tilt of the guttering and a cat's progress along it as he slips into the same window;  the firing range of a gunboat which has suddenly appeared behind the cape and the bomb that destroys the guttering;  the rips in the fish net and the three old men seated on the dock mending nets and telling each other for the hundredth time the story of the gunboat of the usurper, who some say was the queen's illegitimate son, abandoned in his swaddling clothes there on the dock.

As this wave from memories flows in, the city soaks it up like a sponge and expands.  A description of Zaira as it is today should contain all Zaira's past.  The city, however, does not tell its past, but contains it like the lines of a hand, written in the corners of the streets, the gratings of the windows, the blisters of the steps, the antennae of the lightning rods, the poles of the flags, every segment marked in turn with scratches, indentations, scrolls." 

Queen Elizabeth is like a Calvino city.  Her death is not simply the death of one human being. It's a death in a monarchy that goes back more than a millennium.  It's the death of the heir to an empire that ruled much of the world, claiming the riches and labor of the people who were subjects of that ruling royal family.  While Queen Elizabeth II reigned longer than any other monarch in her family, she also reigned over the sharp decline of the empire and of the family's power and scope.  

Henry VIII image Wikipedia

"Queen Elizabeth II is the Church of England chief, officially known as the Supreme Governor, and sits at the helm of a centuries-old British institution established by the monarchy. Its founder was Tudor monarch King Henry VIII, one of the country's most infamous leaders, who created the breakaway institution after turning his back on Catholicism. Centuries later, the Queen has emerged as another landmark ruler who continues to honour the former King's religious practices. But people have questioned whether the two figures who share a throne also share blood.. . 

While there is no direct line between the two, the modern royals have a distant connection to the Tudors.

They owe their existence to Queen Margaret of Scotland, grandmother of Mary Queen of Scots, and King Henry VIII's sister."  (From Express)

 Henry VIII lived from 1491 - 1547. 

What is real and what is imagination?  What is real, but incomplete?  How many Queen Elizabeth IIs are there?  The one seen by her father King George VI?  Her's sister's Elizabeth.  Her husband's.  The views of her children and grandchildren.  There's Gandhi's Queen Elizabeth. Nelson Mandela's? John F. Kennedy's? Churchill's?   Marilyn Monroe's or Elton John's? And every British subject has their own version of the Queen.  

Shakespeare wrote a plays about Henry VIII.  Netflix aired a television series about Elizabeth II.

Where lies the true Elizabeth II?  Nowhere and everywhere would be Calvino's Marco Polo's answer.  

Invisible Cities also includes descriptions of conversations between Kublai Khan and Marco Polo.  
In this excerpt I'm only using Kublai Khan's thoughts.  For perspective, Khan lived from 1215 - 1294.  Calvino wrote about him in the 20th Century.

Kublai Khan from WikePedia

"From the high balustrade of the palace the Great Khan watches his empire grow.  First the line of the boundaries had expanded to embrace conquered territories, but the regiments' advance encountered half-deserted regions, scrubby villages of huts, marshes where the rice refused to sprout, emaciated peoples, dried rivers, reeds.  "My empire has grown too far toward the outside.  It is time,"  the Khan thought, "for it to grow within itself," and he dreamed of pomegranate groves, the fruit so ripe it burst its skin, zebus browning on the spit and dripping fat, veins of metal surfacing in landslips with glistening nuggets.  

Now many seasons of abundance have filled the granaries.  The rivers in flood have borne forests of beams to support the bronze roofs of temples and palaces.  caravans of slaves have shifted mountains of serpentine marble across the continent.  The Great Khan contemplates an empire covered with cities that weight upon the earth and upon mankind, crammed with wealth and traffic overladen with ornaments and offices, complicated with mechanisms and hierarchies, swollen, tense, ponderous.

"The empire is being crushed by its own weight," Kublai thinks, and in his dreams now cities light as kites appear, pierced cities like laces, cities transparent as mosquito netting, cities like leaves' veins, cities lined like a hand's palm, filigree cities to be seen through their opaque and fictitious thickness."

Repost: I Think Scalia's Originalism Is Like Intelligent Design Of Constitutional Theories

Given how the Supreme Court has moved front and center in the debate on the future of democracy in the United States, I've been posting some old blog posts about the Constitution.  I've tried to put key points into a bigger context than we see on Twitter or in mainstream journalism.  

Here, I take a critical look at the idea of Originalism.  The previous two posts were put up in 2009.  This one in 2016.  Maybe now people will read these with more interest.  

February 25, 2016

When Scalia died, I realized that I hadn’t seriously examined his ‘originalist’ theory for interpreting the constitution. I knew that he was outspoken, that I disagreed with the most publicized decisions, but also that he was a good off-the-court friend of Ruth Bader Ginsburg, so there had to be more depth than I was seeing.

I was inspired in part by the way Scalia and Ginsburg, so very different in their understanding of the cases which impacted their interpretation of the constitution, liked each other and spent time together outside of the Court.  From an NPR piece:

"They liked to fight things out in good spirit — in fair spirit — not the way we see debates these days on television," NPR's Nina Totenberg recalled on the NPR Politics Podcast. And Ginsburg admitted once that Scalia made her better. One night last year when the two justices appeared onstage for an interview together in Washington, D.C., Ginsburg talked about a time when Scalia showed her his dissenting opinion in a case before she had finished the majority opinion. "I took this dissent, this very spicy dissent and it absolutely ruined my weekend," Ginsburg said. She made some tweaks to her own argument.   [emphasis added]

So I started a blog post looking up ‘originalist’ theory. I thought that while I was inclined to be skeptical, I ought to at least look at it more seriously. I did. I’d like to present here what I’ve found.

Overview of Conclusion

For those who scan posts in 60 seconds or less - my conclusion is that ‘originalism’ has, as one writer put it, good PR, but basically it’s just old wine in a new bottle.  Like creationism, the old strict constructionist theories of law had been abandoned.  This allowed judges to deal with the many kinds of ambiguities in the law, such as conflicting laws, unclear language, situations unanticipated by the law, etc.  A number of canons developed over the years to help judges deal with statutory interpretation. 

In my, albeit brief, review of originalism, I think, at this point, that originalism is something like Intelligent Design which came into being as a religious alternative to evolution, one that smells suspiciously like creationism, but packaged in what its authors hoped would be a more palatable package.   Furthermore originalism has the public relations value of sounding like its fidelity to the constitution is greater than living constitutional theories. 


Ginsburg’s approach, living constitutionalism, follows the traditions of case law to find ways to deal with inconsistencies in law, generalities in the constitution, and modern situations unanticipated by the constitution.  It isn't simply the bias of the judge substituted for the constitution.  Rather, when  the text of the constitution isn't adequate to resolve a case, a judge then uses other long standing practices to resolve the conflicts and determine a decision that is consistent with the constitution.   Living constitutionalists at least acknowledges that it breathes new life into the constitution in order to deal with situations that weren’t and couldn’t have been anticipated 200 years ago when the constitution was written.


 Scalia’s faction, on the other hand, makes a pretense that it is adhering to the real original meaning of the constitution.   I’m left with the conclusion that this originalist claim to some sort of constitutional authenticity is hollow. 

The rest of this post explains why I believe that. I’m not claiming to be a constitutional scholar or to have read all the articles on this, but I’ve read enough that I’m seeing the same arguments repeated, or I’m seeing very esoteric stuff, that may have some relevance to finer points, but doesn't seem to shed light on the basic conflicts. 

Looking At Originalism

There's no way I can go into all the intricacies in a relatively short blog post.  You can read a bit more here  for a fairly light overview (with an unfortunate don't-worry-about-it, all's-well-that-ends-well conclusion).  Originalism is a variation of what used to be called 'strict interpretation' theory which argued that one must read the law strictly and follow what it says.  My administrative law book in the 1970s dismissed this view of the law as hopelessly unusable because

• there were often conflicting laws and you had to have a rationale for picking one over the other; 
• the law may be unclear or insufficiently detailed for a particular situation
• situations arise which the law didn't not anticipate.  Not only would this include absurd outcomes, but also situations resulting from new technologies not anticipated when the law was written.

Even Scalia removed himself from this extreme position (from Wikipedia):

"Antonin Scalia, the justice most identified with the term, once wrote: "I am not a strict constructionist, and no one ought to be", calling the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute". Scalia summarized his textualist approach as follows: 'A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.'"

And who judges reasonable here?

To get more details on originalism and reasonableness, you can see the Wikipedia overview.  It's not the final word (nothing really is) but it gives us a sense of the concept.  And as you read it, you'll see that originalists aren't all of one mind.  For instance

The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.

Understanding the mindset of a reasonable person of the late 1780s in the newly independent, but not yet united, colonies is a tricky feat.  Imagining what people thought and understood over 200 years ago is no easier than understanding the people who live in a foreign country today.  That doesn't stop people with little or no knowledge of, say, Afghanistan expounding on what the US should do there anymore than it stops jurists with perhaps a better reading of the 1780's, but no real deep understanding of the mindset of the time.

Furthermore, then, like now, reasonable persons had different beliefs.  (Imagine someone two hundred years hence choosing the reasonable person who would represent today's United States.)  Those who mattered back then were basically white, male, Protestant, landowners. (One delegate from Maryland was Catholic.)  From their view, women rightly needed their husbands'  approval to make most important decisions.  Indians were savages.  Blacks were a lesser form of human, whom their new constitution allowed to be owned by white slaveowners.   Is that really the view that Supreme Court justices today should use to interpret the constitution?

When I wrote that, I was aware that I was extrapolating from some brief overviews and knew that I hadn't read any of the scholarly articles on the subject.  Others might well have addressed my concerns.  So I googled  "definition of reasonable person for originalists."

I found this 2014 BYU Journal of Public Law article by Stephen M. Feldman which shows my thoughts are pretty close to the mark (at least his mark), though the author finds lots more that suggests that those reasonable persons back then would have used far more than the constitution and a 'the reasonable man' to make a decision.

Early judicial opinions and legal treatises reveal an eclectic or pluralist approach to constitutional interpretation; no single interpretive method dominated. Early judges and scholars invoked not only reason, but also the text, constitutional structure, framers’ intentions, original public meaning, and so on. Yet, no judge or scholar maintained that constitutional meaning should be ascertained pursuant to a reasonable-man standard."

And Feldman's comments about the difficulty of understanding the context of the time are similar to what I wrote above:

"The contexts and the contingencies engender, for a historian, the sub-texts, the layers of underlying meaning. But originalists disregard context, contingency, and subtext. Originalists, that is, use history without a “historicist sensibility” or historical understanding. (p. 299)
They want to find a fixed objective meaning when a historical text, such as the Constitution—especially, the Constitution, which forged a nation in a political crucible—is roiling with subtexts." 

And his comments about which reasonable person one would choose are also similar to what I wrote above:

"How did people relate to and interact with others? With family members? With strangers? How did people work? Were they subsistence farmers or involved in commercial transactions? How were they educated? Were they literate? How important were religious beliefs? How about gender and race? Should the researcher limit the investigation to white Protestant propertied males because they were the primary voters? With so many variables—and there are many others—the assiduous researcher would probably conclude that founding-era people were too diverse to be reduced into a hypothetical reasonable person."   (p. 302)]

But if we are going to choose a reasonable man of the period, who better to use than Thomas Jefferson?  Reading critiques of 'originalism' I came across comments he made that are directly relevant here and are called "the Jefferson problem" with originalism.  This is from Society for US Intellectual History (S-USIH):

"In September 1789 Thomas Jefferson wrote to James Madison from Paris that “the question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.” In making his own answer, Jefferson famously declared that “the earth belongs in usufruct to the living,” that “by the law of nature, one generation is to another as one independant nation to another,” and furthermore that “no society can make a perpetual constitution, or even a perpetual law… Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.'”

Feldman's whole article tends to show much of the originalist 'theory' to be superficial and non-factual.  And he quotes others who see the whole idea of originalist theory as a fiction that allowed for a wide leeway of interpretation.

"In the words of the legal historian Saul Cornell, reasonable-person originalism turns “constitutional interpretation into an act of historical ventriloquism.”   The reasonable person is a dummy who speaks words uttered by the originalist scholar or judge."

[Feb. 25, 1:30pm AKTime:  I did some edits here to remove some accidental repetition.]

Conclusions 

The variations of living constitutionalists don't nail any specific one best way to interpret the constitution.  But they do assume that the framers intended the constitution to be a living document to be interpreted in the context of the times. Surely the fact that the framers created a process to amend the constitution suggests they saw the need for changes as times changed.  Any concept, of course, can be misused by the person applying it.

But it seems that originalism has more built in contradictions than living constitutionalism, which acknowledges that it must fill in where the constitution leaves off.  It's very difficult, for example,  to figure out how, theoretically, an originalist deals with, say, both the document ratified in 1788 which considered slaves as 2/3 of a man for purposes of determining population and gave them no rights, and with the 14th Amendment adopted in 1868.   When they consider the reasonable man of 1788, do they simply cut out that part of his mind that allowed for slaves in 1788 and leave the rest intact?

Is my title metaphor too strong?  Perhaps.  Intelligent design is a religious take on life on earth as opposed to the science of evolution.  Originalism isn't that removed from living constitutionalism.  But the metaphor works, when we think about originalism as a warmed over version of strict constructionism with better public relations as a way to push a philosophy that conservatives believe will work better for them.  The fiction parts include that it  a) is more true to the constitution and b) doesn't allow for bias to color decisions. 



I've been writing, reading, cutting, and pasting, more reading, talking to folks, and I realize this post could go on forever.   As much as I'd like this to be a complete overview with a neatly proven conclusion, this is not a law review, and most of my readers will never get as far as this sentence.   And there is much I haven't read where some of what I say is already said, or corrected.  Think of this more as working notes.  I hope readers who see problems point them out and their sources.

There's lots more to cover in this topic.  I'm going to cut and paste the left overs and if time allows and the spirit is willing, I'll go further in future posts.  I'd like to look at living constitutionalism in more detail and criticisms of it.  I'd also like to look at some cases where Scalia reveals that despite originalism, he himself seems to be susceptible to substituting his bias for the constitution, such as Bush v. Gore.  And I'd also like to pursue a bigger question:  how does an individual decide which constitutional philosophy is best?  Is there some objective 'best?'  Or are there simply different approaches and there is no foolproof way to pick one? That all contain their own strengths and weaknesses?  And, is originalism a sincere effort to better interpret the constitution or was it designed as a cover to move American legal decisions to the right?  And I realize that it needn't be an either/or question.  It could be both. 

Supreme Court Posts Still Very Relevant: Spinning the Supreme Court 1 - Narratives About the Court

 I started a blog post that was a quiz about the Constitution.  At the bottom I was going to link to some older posts about the Supreme Court and the Constitution.  But first I checked the links.  The posts are quite good and give deeper context to the current (and past) debates about the Supreme Court.  Even if you've read these before, they are worth reading again. (I actually wrote these and still find them worth reviewing.)  Since they are longish, I'll do them one at a time.  And no, this isn't just an easy way to put up content on the blog.  I think this post, for example, did a pretty good job of foreseeing things that have come to pass and thus are worth reading again.  

This first one was posted on June 6, 2009!  It looks at what all underlies the debates about Senate approval of Supreme Court nominees. 

June 6, 2009

Spinning the Supreme Court 1 - Narratives About the Court

[This is Part 1 of three posts on the narratives surrounding a Supreme Court nomination.  Part 2 will be on narratives about political strategy and Part 3 will be narratives about race.]

We generally understand Winston Churchill's  “History is written by the victors” to mean that those who prevail, get to select which facts to highlight and how to interpret them as they tell the story of how they (now 'the good') defeated 'the evil ones.'

But who is writing the present? Well, everyone is trying. We are all competing to have our narratives accepted as official reality.

In most situations, there are an enormous number of facts and a smaller number of competing narratives (or theories or stories or interpretations) which try to organize and explain the facts. The difficulty is in figuring out which of the facts are significant and which of the narratives best fit the facts. Our inclination is to make the facts fit our own favored narratives (the stories we want to believe) rather than finding or creating narratives that more accurately explain the facts. When politicians do this - try to create the right narrative for political gain - we call it framing or spin.


So, what are the narratives around the appointment of a Supreme Court Justice these days? In our heads are all the stories we've ever heard or thought of. Outside our skulls is the world where things are happening. We talk about 'facts' as though they are 'true' events. But who filters the facts before we get them? Obviously, events we don't witness first hand, are filtered by others - friends, family, news media, bloggers, etc. And even events we witness are filtered by our brains. Physically we can't take in and record every fact we witness. (Can you describe exactly what the last person you spoke to was wearing, down to the buttons?) And those stories in our heads I mentioned above also filter in and filter out what we think is important. (The buttons probably weren't important and not special enough to have attracted your attention.)

So how do we swim through all the facts and all the spin to find the narratives that most closely mimic what's happening outside of our heads? The best way I know, and it is inadequate, is to try to become conscious of the narratives. Usually they are working without us paying any attention, like doormen deciding which facts and ideas can come in and which can't. So, if you try to be conscious of the narratives you and others are using, then you take a giant step forward in figuring out what is happening.

So what narratives are being used concerning the decision to select and then approve of a Supreme Court Justice?


Constitutional Narrative

The US Constitution, Article II, Section 2 says:

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [emphasis added]

Supreme Court Justice Narratives

Here's the generic narrative of a Supreme Court nominee we tend to learn in school:

The President will nominate someone who has performed exceptionally well in the field of law AND whose political leanings, while aligned with those of the president, are also not too distant from those of the population. 

Bonnie Goodman at HNN offers an example of the second part of this narrative in regard to Ruth Bader Ginsburg's confirmation hearings:

Sen. William Cohen (R-Maine) stated bluntly that the nominee's ideology was rightly a matter of concern. But Cohen suggested during the hearings that judicial ideology should be used only to determine if the nominee's philosophy is "so extreme that it might call into question the usual confirmation prerequisites of competency and judicial temperament." [emphasis added]

This issue of 'so extreme' in modern times came up with the nomination of Robert Bork. One narrative says that Democrats made judicial ideology an issue by rejecting Bork. A counter narrative says Republicans made it an issue by nominating a candidate whose ideology was so extreme. (Of course, saying that he was extreme is also a narrative, an interpretation of the facts.)

As you can see this is already getting tricky. How do we know what's extreme? We do have opinion polls, but the law isn't about voting and popularity. The Constitution is supposed to protect the basic rights of all humans even if the majority doesn't support them. Judges are supposed to decide based on the law, even if the decision isn't popular. They get lifetime appointments so they can resist pressures to vote a certain way.

It would seem pretty simple to interpret "he shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court," but we're already finding problems. "Advice and consent" seems pretty straightforward. The President did talk to lots of Senators before nominating Ms. Sotomayor and soon they will be able to consent or not. But what is an appropriate basis for that consent?

That gets us back to the statement above about legal competence and political leanings. While we could debate all this, I won't spend much time on legal competence. That seems the easiest, though, if someone didn't go to Yale or Harvard, can they fit the prevailing narratives of "legally competent"? What about someone who hasn't been a judge already? Etc.

If judges are supposed to make decisions based on the law, why even mention political leanings? Well, because the President and the Senate are all politicians and because the Supreme Court is the third branch of the government. The judges aren't elected, but they are appointed and approved by elected officials. So we have to consider politics.

And also, 'political leanings' is another way to allude to the kinds of narratives people have in their heads. These political leanings are predispositions to consider some things more important than others - the right to own a gun as more important than the possibility of misusing the gun, or upholding international law about torture as more important than potential security risks.

Above I offered a generic narrative of a supreme court nominee. Let's expand that now from just the nominee's characteristics to how the nominee should behave if approved.


There are two well articulated narratives about how a Supreme Court Justice should behave.  Wikipedia, in a post on Judicial Activism offers: [The Wikipedia entry since 2009 appears to have changed quite a bit.  This is from the 2009 version and you can see the newer stuff at the link if you wish.]

Judicial activism is a philosophy advocating that judges should reach beyond the United States Constitution to achieve results that are consistent with contemporary conditions and values. Most often, it is associated with (modern) liberalism that believes in broad interpretation of the Constitution which can then be applied to specific issues.

Judicial restraint is the counterpart to judicial activism and is advocated by thsoe [sic] who believe that democracy will thrive if judges defer to the democratic process and stay out of policy debates. So, judicial activism is not necessarily an ideological concept. Some trace the history of judicial activism back to the loose constructionist approach of Alexander Hamilton, who believed that broad wording of the Constitution was meant to enable, not inhibit, various government actions.[1]

But this Wikipedia article is marked with warnings such as:

• Its neutrality is disputed. Tagged since December 2008.
• Its neutrality or factuality may be compromised by weasel words. Tagged since November 2007.
• It is in need of attention from an expert on the subject. WikiProject Law or the Law Portal may be able to help recruit one. Tagged since May 2009.
• It may contain inappropriate or misinterpreted citations which do not verify the text. Tagged since December 2008.

So we even have to consider that Wikipedia entries are also influenced by the narratives of their writers.

Adam Cohen, in a recent NY Times editorial, uses Britain's Supreme Court of Justice's decision that a Pringle is indeed a potato chip (and thus Proctor & Gamble owes $160 million in taxes) to give his own interpretation of activist judges:

Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like “free speech” or “due process” — or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”

(Note that Cohen calls conservatives "strict constructionists" a term that seems more radical than Wikipedia's term "Judicial Restraint.")

(If someone were really a strict constructionist, could one argue that since the Constitution says "he" for President, that women can't be President?)

Let's try again for a narrative about a good nominee:

The nominee would be a person who would assume office with the goal of interpreting cases according to the law. Where the law is not completely clear, there will be some interpretation that is influenced by the new justice's life experiences. Candidates should not be coming to the court with the goal to change the direction of the court and the law. However, some cases raise issues not clearly addressed by the law or the Constitution. New technology raises questions that were often not addressed by the Constitution. Judges then must interpret how the words of the Constitution should be applied to, say, surveillance of email. Essentially new law must be created.

My 'neutral' (some might dispute its neutrality) narrative above tends to say that when possible (if the laws and Constitution are clear about the situation in the case before the court), judges should practice judicial restraint. But when the case isn't clear cut, they will need to be a bit activist. They will be required to use their own narratives, to interpret the law or Constitution. Of course if all the justices have the same narratives, they will come to similar conclusions.

And with eight males and one female, to the extent that males and females experience the world differently, we can see that female (slightly over half the US population is female) narratives are somewhat lacking on the Supreme Court.

I'm not an attorney. I don't claim any special expertise in this process of choosing a Supreme Court Justice. But I did want to step back a bit from the rhetoric and focus on the narratives that are being used in the hope that others might begin more easily to recognize them for what they are: interpretations of reality, but NOT reality.

In Part 2 I'll look at narratives about political strategies for approving or rejecting Supreme Court nominees, which will include how actors use narratives to support and oppose candidates. In Part 3 I'll look at narratives around race and Supreme Court nominees.

Warnings From Half Of A Yellow Sun

The phrase, "Everything is impossible until it is done" often attributed to Nelson Mandela among others, tells us not to give up hope that we can accomplish something.  It's a positive inspiration for people fighting to elect sensible politicians or to change oppressive laws.  Surely the Supreme Court decision declaring the right to gay marriage is an example of the truth of that quote.  Tattoo it on your brain.  

But I want to look at the possibility of negative events in this post, which might be more aptly said, "Everything is impossible until it isn't."  NOT taking action because we DON'T think something bad can really happen is a problem.  

Below is a short passage from Half Of A Yellow Sun a novel by Chimamanda Ngozi Adichie.  

The book portrays the lives of (mostly) upper class, educated Nigerians.  Part I is titled "The Early 60s."  I'm now in Part II:  "The Late Sixties."  I'll briefly point out why I think it is relevant to us today for those who may not see in the passage what I see.

The narrator, in this chapter, speaks from the perspective of Ugwu, an Igbo, who is the houseboy of Odenigbo who teaches at the university in Nsukka. He is also Igbo though he often speaks to Ugwu in English.  Odenigbo is often referred to by Ugwu as Master. Odenigbo hosts weekly afternoon lunches for a small group of faculty - where they have lively discussions about the politics of their newly independent country.  

The gathering in the passage is a little different.  There had been a recent coup and now there are reports on the radio that the Muslim, Hausa-speaking Northerners are starting to attack the Christian Igbo soldiers who they accuse of tribal favoritism and corruption in the newly independent nation of Nigeria.

"Ever since the second coup some weeks ago, when the Igbo soldiers were killed, he had struggled to understand what was happening, read the newspapers more carefully, listened more closely to Master and his guests.  The conversations no longer ended in reassuring  laughter, and the living room often seemed clouded with uncertainties, with unfinished knowledge, as if they knew something would happen and yet did not know what.  None of them would ever had imagined that this would happen, that the announcer on ENBC Radio Enugu would be saying now, as Ugwu straightened the tablecloth, "We have confirmed reports that up to five hundred Igbo people have been killed in Maiduguri."

"Rubbish!" Master shouted.  "Did you hear that?  Did you hear that?"

"Yes, sah,"  Ugwu said.  He hoped the loud noise would not wake Baby up from her siesta.  

"Impossible!" Master said.

"Sah, your soup," Uguw said.

"Five-hundred people killed.  Absolute rubbish!  It can't be true." [emphasis added]

I'd note that in the next chapters the slaughter will get even worse.  

My sense is that most US citizens are still sitting too comfortably in their lives to believe how close we are to the impossible.  Or maybe a little too uncomfortably to believe things could really get even worse.  They are telling people like me not to be alarmists.  Things always work out.  

Well, until they don't.  

In May 2020, Trump said Trump said keeping US deaths to 100,000 would be a ‘very good job.’  Over a million people in the US died of COVID.  Where's the outrage?  Well, the million who died aren't here to complain.  And while their families were affected,  most of us didn't have physical contact with all those dead bodies.  The deaths were spread out geographically.  But let's consider how many people died.  The ten largest cities in the US have populations above 1 million.  

But the next ten, if all those deaths took place in their cities, would have been wiped out!

11	San Jose	California	1,003,120
12	Fort Worth	Texas	958,692
13	Jacksonville	Florida	938,717
14	Charlotte	North Carolina	925,290
15	Columbus	Ohio	921,605
16	Indianapolis	Indiana	892,656
17	San Francisco	California	884,108
18	Seattle	Washington	787,995
19	Denver	Colorado	760,049
20	Washington	District of Columbia	718,355

Source:  https://worldpopulationreview.com/us-cities

It would have a lot more impact if the deaths had been geographically concentrated in any of these cities.  The whole population would be gone!  Ghost town.  

We still don't comprehend the enormity of the disaster.  And because we refuse to even wear masks, we continue to offer our bodies as breeding ground for the virus.  Even if we have no symptoms, we give the virus a host where rest and mutate into newer and potentially even more deadly variations.

But perhaps the biggest catastrophe waiting to happen is the loss of our democracy.  Women have already had a basic human right ripped away from them.  Now far right legislators are trying to limit their right to interstate travel.  If the Supreme Court next fall cedes all voting decisions to state legislatures, Republican legislatures will gerrymander their states so that only Republicans can win.  They'll change voting laws and procedures so that potential Democratic voters will have a video game worth of obstacles blocking their attempts to vote.  

Armed (unregulated) militias could duplicate the slaughters that Odenigbo can't believe are being reported on the radio.  If you don't believe that you didn't see any footage of January 6.  You don't understand the hate and anger behind the anti-abortion laws.  You fail to consider the 320 million guns owned by US citizens.  You're not paying attention to regular mass shootings - there have already been 48 in the US in July 2022 and today is only July 17!

Some US citizens understood the gravity of things when they watched the January 6 insurrection.  Others while listening to the Congressional Jan 6 hearings.  But most people seem to be incapable of believing a fascist takeover of the United States could really happen.  Their image of the US as the land of democracy and freedom blocks the image of an authoritarian take over.  No government in history has not eventually fallen.  Despite the talk of American exceptionalism, we aren't any different.  

Some people may think that they are law abiding white citizens so they'll be fine. Only bad people have to worry.  

And many might imagine the worst, but can't imagine they have the power to do anything about it.  That's understandable and curable.  

We all need to keep these two quotes visible:

EVERYTHING IS IMPOSSIBLE UNTIL IT IS NOT.  

To remember that losing our democracy is very possible.

EVERYTHING IS IMPOSSIBLE UNTIL IT IS DONE.

To remember that we can work to preserve our democracy and defeat those who want to kill it.  

The most immediate thing you can do is make sure as many people as possible vote blue. Don't believe me?  Stacy Abrams got enough blue voters registered and to the polls in Georgia in 2022 to give its electoral college votes to Biden and to replace two Republican US Senators with Democrats.  She did it by planning and hard work.   There are many organizations working hard to duplicate that kind of work.  In 2020, nearly 2/3 of eligible voters voted.  That was a presidential election year when more people vote.  It was a record high.  But it means that 1/3 of voters did NOT vote.    

You can help find those non-voters and encourage them to vote blue.  Here are some organizations working on that.  

Six Organizations Getting People to Vote and How to Help Them

Fearless Action is a youth led group getting people to vote.

The League of Conservation Voters

Fascist/authoritarian takeover isn't inevitable.  But the fact that majority of the Republicans in the House and Senate won't say that Biden won the election, but instead are denying the insurrection, and are attacking the January 6 investigation, and doing nothing to prevent it from happening in 2024 is not a good sign.  

While the 2022 election is critical to maintaining a democracy, the larger threat looming over the world is Climate Change.  While a growing number of people are convinced that climate change is real, they aren't willing to fight hard to slow it down.  Every day of delay means more extreme climate change impacts and more suffering of all living creatures on the planet.  (Well, there probably will be some creatures who will find a way to thrive in the new earthly reality.)

I'm guessing the title of the book is related to the flag of the short-lived breakaway country of Biafra.

Choking The Secret Service, Smashing China, Taking Down Security Magnetometer - Thoughts From Today's Jan6 Committee Hearing

The headlines are expressing surprise at how much the the January 6 Hearings are revealing and Republicans are claiming not to have understood how serious things were.  

From @PalmerReport:

CNN says many Republican officials are “stunned” by today’s bombshells about Trump. No. They knew he was every bit this evil. They’re only stunned that the January 6th Committee was this successful at digging it all up.

No one who has paid any attention whatsoever, didn't know how bad it was.  Only those who had a  vested interest in believing Trump should have known.  

Here are some thoughts which I started jotting down after the first break today:

1.  Most pressing question for me was: what motivates a person like Cassidy Hutchinson, who has served a number of far right politicians before moving to the White House, to now testify about what she saw?  How did she make the decision?  I understand that we tolerate flaws in people we love or people we hope will achieve important outcomes.  Democrats defended Clinton during his impeachment trial because they thought his presidency was more important.  I'm just curious how people decide their hero has cross one line too many?  

Later, Hutchinson actually told us it was watching the her big boss actually encouraging the insurrection.  

 "As an American, I was disgusted. It was unpatriotic, it was un-American. We were watching the Capitol building get defaced over a lie,".  

2.  Dripping Ketchup, Smashing China:  In regards to that first question,  I'm sure there are some very proper GOP women who will finally be convinced after hearing that he smashed the china against the wall.  

Hutchinson testified that T was so mad at Barr for an interview with the media (AP I think) that he threw his lunch against the wall, getting it full of ketchup, and breaking the (White House presumably) china.  

They might think that groping 'those kind of women' was just boys being boys.  But visualizing the ketchup dripping down the wall and seeing the broken china pieces on the floor will be enough for some to draw the line.  

3.  The Magnetometer,  steering wheel, and the neck.  Hutchinson testified that Trump learned the audience for his speech wasn't as big as he wanted because his supporters didn't want to go through the Magnetometer machines and have their weapons confiscated.  He said they weren't going to hurt him and should keep their weapons and take them to the Capitol

“I don’t fucking care they have weapons,” he allegedly said. “Take the fucking mags away.” Then in his speech, he urged those same supporters to march down to the Capitol. 

And then when the secret service refused his order to drive to the Capitol, Hutchinson testified that he grabbed the steering wheel and the neck of the secret service guarding him trying to get them to turn around and drive to the Capitol with the mob.  

"“I’m the f—-ing president, take me to the Capitol now,” he told his staff, according to Hutchinson. The president lunged for the steering wheel, Ornato told Hutchinson, and when Engel tried to restrain him, Trump lunged for Engel and tried to grab him around his throat area."  (MSNBC)

I'd note T has denied these events ever happened.  Of course.  Maybe he should call up Rep. Thompson and volunteer to testify under oath.  

4.  Hanged versus Hung.  She talked about T encouraging the people who wanted Pence 'hung.'  Just for the record, pictures and clothes and even juries can be hung.  But when talking about people executed with ropes around their necks, the right word is 'hanged'.  I don't think it matters too much, but it is a curiosity of the English language.  

5.  Cassidy Hutchinson is merely 25 years old and has had positions working for various powerful Republican politicians since graduating from college.  She was remarkably composed at the hearing today.  

People might tell you we need to get past this and just move on. We don't do that for most crimes where there's an accused unless the prosecution doesn't think there is enough evidence, or the accused is a white police officer or very wealthy and/or well connected.  

Not enforcing the law vigorously against those who tried to overthrow the election and end American democracy as we know it, by people who continue to call the visible leader of that movement their hero and want him to run again in 2024, only encourages such behavior to continue. Putting every insurrectionist  in  prison isn't going to change their minds, just as imprisoning a murderer isn't going to change his mind.  We put them away to stop them from committing more crimes. Though a civilized country would find far more humane and effective ways to deter and rehabilitate then the US prison system. 

And for those Republicans, particularly in Congress, who want to just let it go, I'd remind them that there were ten Congressional Benghazi investigations from April 2013 to December 2016.

"Despite numerous allegations against Obama administration officials of scandal, cover-up and lying regarding the Benghazi attack and its aftermath, none of the ten investigations found any evidence to support those allegations."

And then there was the Clinton email investigations.  The Republicans are less effective in investigations that end up in prosecutions.  They're more effective in creating 'scandals' to hurt their opponents' election chances.   

Finally,  John Durham is still investigating the FBI investigation of the Russian connections to Trump.  He was appointed in May 2019.  The recent trial jury in that investigation found attorney John Sussman not guilty.  That's over three years for people whose math is rusty.  At about $1 million per year.  

History's Verdict, SCOTUS & Presidential Elections, Right Has Good Reason To Hate Pelosi, Judging Others

There's guns, abortion, Ginni Thomas, Jan 6, COVID, Louis DeJoy still running the post office, the high rejection rates in Alaska's recent all mail in election, climate change related fires and storms yet no serious action to curb carbon emissions, Ukraine, attacks on LGBTQ,  . . . 

There are just too many fronts for anyone to meaningfully comment about much.  

So I'm limiting this to a couple of very narrowly focused thoughts.  

1.  How Will History Report All This?  People have been talking about how history will judge things that are coming to light at the Jan 6 hearings.  But I've been concerned that if gerrymandering and misinformation and voter suppression work, those in control will be the people who will write history in T's favor.

But then I realized that historians around the world will also be writing this history and if we're lucky, they'll preserve the real story.  And if we're even luckier, the hearings - like the Watergate hearings did eventually - will shock enough people into realizing how close we were to a coup.  And we'll have a repeat of the post-Watergate cleaning up.  

2.  The Supreme Court And Presidential Elections.  As I watched Twitter today there was a lot of attention on Ginni Thomas, Tom Eastman, Clarence Thomas, and Alito.  Now people may think this is all just wild speculation, but I've been fairly careful with who I follow on Twitter, and I've found Twitter gives me a one to three day heads up on what gets covered in the mainstream media.  But as I was listening to the chatter that suggests Eastman thought that if the ratification of the election got delayed a week or so, then Thomas and Alito would support the T position.  Far fetched?  

Then I thought about how the Court intervened to interrupt the Florida recounts to declare Bush president.  They've done this before.  John Roberts was on the Bush side of that verdict. And I began to think about how that too was probably planned out in advance.  Scary stuff.  Maybe some researchers will get some of those involved to offer more on how that was pulled off.  

3.  Nancy Pelosi, an American Hero.  Several people gave Pelosi a lot of credit today.  First, for calling Congress back after the insurrection so they could finish ratifying the election.  Not giving the Court any time to intervene.  Second for going ahead with the Jan 6 hearings.  That she'd even pulled a fast one of McConnell who refused to participate in a joint Senate and House hearing that would have give T Republicans much more power. (As someone said, they would have subpoenaed Hunter Biden and interrogated him for three months to block everything else.)  But McConnell said no, and now the Democrats can do what they want and they're doing it well.  With the considerable assistance of Liz Cheney.  

4.  Lessons in Making Judgments About People - Exhibit 1:  Liz Cheney.  I totally disagree with most of her policy beliefs.  Never expected to be saying positive things about her. But I do share her belief in the rule of law.  And the various T insiders who have been testifying remind us that despite the many morally questionable decisions they had to make to serve Trump, they did have some red lines they wouldn't cross.

Redistricting Board Decision Day (Wed April 13, 2022) Video

The Board has posted the video of the April 13 Board meeting (embedded below) when the three Republican appointed majority members voted to approve the map Option 3B, submitted by long time Republican strategist (and past Republican Party Chair) Randy Ruedrich.  

They did these explanations because the Court found the previous map unconstitutional and had said that the Board needed to justify its decisions on the record, especially if they are contrary to public opinion.

As you listen, I remind you that Judge Matthews concluded  that contiguity simply means the two districts have touching boundaries in his order in the court cases - see pages 40-42.  He repeats it again on page 74-75, rejecting the concept of 'transportation contiguity.'

But he also notes that Marcum started the November approved Senate maps in Anchorage with the firm belief that JBER and Eagle River could not be pulled apart.  I'd note that D23 which includes most of JBER is also 1/3 off base areas left over from cutting downtown apart along 4th Avenue.  I mention that here because Simpson strongly defended the 23/24 pairing and he saw any attempt to split them as an attack on "our soldiers' and proof of partisan gerrymandering.  (Note how often Republicans these days are quick to accuse anyone who opposes of doing the exact same illegal or immoral thing they are doing.) He noted that protecting this pairing is what prevented the Board from pairing the two Eagle River districts which were shown to be communities of interest by the East Anchorage plaintiffs' expert witness, Dr. Chase Hensel.  

Enough preface.  I'm working the next post which will look at how their decision was based on unsupported assertions, anecdotes, and attacks on alternatives.  Not on any kind of professional decision making process.  

This is the video of that meeting.  My previous post reviewed member Budd Simpson's reasons.  That begins right about 20 minutes into the video and goes to about 45 minutes in.  This is followed by member Nicole Borromeo's critical response (beginning about 46) which includes asking the Court not to remand this back to the Board but to just finish the map because the Board will just continue with partisan gerrymandering.  

We also have much shorter (than Simpson) reasons from Marcum and Binkley.   Then there's the vote.  I like John Binkley as a person - he cheerful, has a ready smile, and genuinely seems to like people - all kinds.  And he has this amazing ability to keep that cordiality going even facing diversity.  Listen to him right after Borromeo blasts the majority decision. He couldn't be sweeter if she had praised the majority decision highly.  But also not how he tends to keep talking much longer than necessary - wanting to keep every possible option open as long as possible.  The procedural decisions that should have taken 15 seconds or more just go on and on.  

Joint Redistricting Board - 4/13/2022 - 1:00pm from AlaskaLegislature.tv on Vimeo.

Alaska Redistricting Board: A Critical Look At Budd Simpson's Arguments Supporting Option 3B [UPDATED]

There's so much to write about following the Redistricting Boards 3-2 vote to approve Option 3B, the plan written by Randy Ruedrich and approved by the three Republican appointed Board members against the vehement objections of the two Board members who were appointed by people not affiliated with a political party in Alaska.  

In this post I'm going to go through Board Member Budd Simpson's reasons for supporting Option 3B.  His explanation was by far the best of the three explanations by the majority.  But first, let me give a little bit of background of the districts in question.  

[Let me first note and apologize.  I'm going to use the House numbers and Senate letters used in the November proclamation plan map.  Some of these got changed yesterday, but I think it would be more confusing if I used the new numbers.  For the points I'm making here, it doesn't matter.]

Both Options 2 and 3B paired north and south Muldoon districts.  That was what the Court pretty much told them to do.  

But that left D22 (Eagle River) orphaned.    Option 2, as I see it, had the most obvious pairings.  It joined districts that had been split apart right through neighborhoods.  Let me show you what I mean:

  

District 9 is a huge district that runs down Turnagain Arm to Girdwood and then on down to Whittier.  But in town, it connects to D10 via the Seward Highway and neighborhoods east of the highway. Neighborhoods along the coast line.  You can see that clearly in this map.  

These two districts were paired in the original map approved in November and in the Option 2 map.  

The two Eagle River districts are also large and cover lots of unpopulated land in Chugach State Park.  But the two districts 22 and 24 have closely joined populations near ER Valley and along the Glenn Highway.  They fit like puzzle pieces.  Neighbors nearby.  

Option 2 put them together in one Senate seat.

And D24 (this map just shows part of the off-base portion, which is attached to the JBER portion.  You can see Fourth Avenue is split in half.  The olive part is in D23, the purple in D17.  D23 also includes parts of Mountain View and goes east to Bartlett High School. Again, people across the street from each other are in different districts.  Reconnecting them in a Senate seat makes perfect sense to me.  That's what Option 2 did.

But when you pair them the way Option 3B does, you're connecting not the communities that have been split, but wilderness.  Below is a larger view of part of D9 and D10.  Option 3B splits them and pairs D9 with D22.  Across the uninhabited (by people) Chugach State Park.  To get from a populated area in D9 crossing the "contiguous" border" to a populated area in D22, you have to walk across mountain ranges and river drainages  - probably about 10-15 miles.  Eagle River Valley is not on this map, it's further north in the yellow part.  To get to the people in D10, many people in D9 could just walk down the street.  Just the same as between the two ER districts and downtown and Government Hill/JBER.  

But not between D9 and D22.

The same is true on the JBER side of D23 that connects to D24.  Wilderness.  The olive district is 23, the brighter green is 24.  

As many people testified, people in D9 would have to drive through four or more other house districts to get to the district they're paired with.  The same is true for people in districts 23 and 24.

I'm putting these maps here so it's clear that Option 3B is not the most obvious, the most natural pairing of house seats.  It would seem that the burden should be on the proponents to demonstrate why 3B is the better choice.  

At Wednesday's meeting each member of the majority did lay out their reasons in quite  bit of detail. The court had faulted them for not doing that last time.  Will the judge accept member Simpson's definition of  'reasonable'?   In his deposition he was asked for a definition and he said it meant you had a reason.  Does it have to be a good reason?  Apparently not.  

I was at the Legislative Information Office and took notes on my laptop.  (Only members Bahnke and Borromeo were also in the LIO.  The others were there by Zoom.)  Budd Simpson doesn't speak a lot and when he does, he speaks fairly slowly.  I mention that because that makes it easier for me to keep up with him.  Simpson's arguments were also the best of the three.  So, below are his words in black (as close as I could catch them) and then I comment in red.  

 

Budd Simpson's explanation of why he voted for Option 3B

Simpson:  Interesting to me between option 2 and 3B, there are a number of things in common.  Both options only change four districts.  A reasonable number.  Both independently came up with solution that only changes four districts.  Gives credibility to both.

They didn’t “both independently come up with a four district solution.”  First, there was only the Bahnke plan - Option 1.  Option 1 was the alternative plan that was proposed last November that had different Senate pairings throughout Anchorage from the pairings that were in the adopted plan, which was later ruled unconstitutional.  

Then the East Anchorage plaintiffs submitted a proposal to adopt another plan.  This would become Option 2.

Option 2 followed the rules of the Court to the T.  It only changed four districts and left the other four as member Marcum had paired them in the Proclamation Plan.   Meanwhile, the Ruedrich Plan was submitted.  It changed more than just the minimum number of districts affected by making the court corrections.  

Then Borromeo and Bahnke moved to withdraw Option 1 and just go with Option 2.  They did this because they recognized Option 2 more closely followed the Court’s orders which were to make other changes only if necessary because of taking apart D22 and D21.  (ER and Muldoon)

It was only then that Ruedrich submitted an amended plan which also limited the changes in Anchorage.  

So, this wasn’t independent.  The Republicans saw that their plan would be less likely to meet the Court’s approval if it had more changes than Option 2, so they then changed their map and Option 3B was born.  

Both dealt with Senate D to join 20 and 21 - best solution probably.  Also leave in place the pairings districts 11 and 12 and 15 and 16.

The Court specifically said to fix D 21 and talked about  keeping the Muldoon community whole.  The most obvious way was to connect it to 20.  

Left with ER Chugiak, S Anchorage Hillside,   JBER Military,  and Downtown.  

Bear with me as I . . . Whether we pair 17 and [this must be 23, but my notes had something else] or 23 and 24 - Military and Chugiak.  How you decide those two options, drives what happens with ER 22 and south side of Chugiak.  

He sets this up with a false starting point. 

Why is the choice 17 and 24 or 23 and 24?  We should start with the new orphan district 22, that is left over after putting 21 with 20.  And the most obvious pairing is with the other half of ER - the two districts are a unit.  The house districts split them neighbor from neighbor, the Senate district can repair that split.  

How does Hillside come into the picture?  The first question is after separating 22 from 21, what do we do with 22?  The most obvious pairing is with 24.  Lots and lots of evidence for this.  But the Republicans on the Board want to keep Chugiak/Eagle River (24) paired with JBER/Government Hill (23) because that will pick up an extra Republican Senator.  So they make keeping 23/24 together the only option.  

When you make a decision you have fewer other options to choose from as you go forward.

As to motion for Option 2 - I find the pairing of 23 and 24 ER and Chugiak the more compelling solution.  Pairing JBER with downtown overlooks a conflict of interest and opens us to a challenge to that constituency.  Chugiak has developed as a bedroom community for the military families.  They send their kids to middle school and high school there.  That testimony was compelling to that pairing.

Lots of false assumptions here.  What conflict of interest is there with pairing JBER with Downtown?  And why do you refer to D23 as JBER.  Yes, 2/3 of the population lives on JBER.  But 1/3 lives in downtown adjacent areas.  The Board already paired JBER with downtown in the House district.  To say pairing JBER and downtown is a problem now, overlooks the fact that the Board already paired them.  

In fact, the Board split downtown along 4th Avenue when they created D23.  Right in the middle of downtown Anchorage.  And although the downtown parts of 23 only have 1/3 the voters of the JBER section, more downtown people actually vote than JBER people in that district.  I haven’t gotten all the details (and nor has the Board), but a significant percent of the population of JBER are actually residents of other states, only in Anchorage for their rotation.  

A former East Anchorage Rep testified that ER high school wouldn’t exist without JBER.   But another person testified with data that showed  ASD students who had JBER addresses actually came out this way: [UPDATE April 16 - I realized I described these numbers incorrectly.  Here's the description from Denny Wells:  

"JBER High School boundaries are not included in maps from the Anchorage School District, but if you look up JBER addresses via the Anchorage School District School finder, you will see that addresses in the Richardson portion of the base, accessed via the Richardson gate, are zoned to Eagle River, while the

addresses in the Elmendorf portion of JBER accessed via Government Hill, Boniface, and Muldoon gates are zoned to Bartlett. The Downtown and Government Hill portions of District 23 are zoned to West High School. In total, in district 23, the populations in the various High School boundaries are these:"]

Bartlett High School (inside District 23) – 8733 people

West High School (inside District 17) – 4802 people

Eagle River High School (inside District 22) – 4488 people

More JBER students go to West High School - in District 17 “the Downtown District” according to Simpson, than to Eagle River.  And twice as many go to Bartlett which is in D23!  So this argument is bogus.  The data was actually in the testimony but Simpson either decided to ignore it or didn't read it.    We don't have this data.  It's something the Board should have looked up before jumping to their conclusions.  (And I should have been more careful when I put the numbers up.]

And then, let’s check on how many students from the Hillside go to ER high school or vice versa.  Probably close to zero.  But no one mentioned those numbers.  Why are these issues relevant to one pairing but not the other. 

Further, if you look at the demographic data of people living on base and the downtown off base parts of District 23, they are quite different from D24 - income level, types of homes, ethnicity.  But Simpson doesn’t pay attention to any of that.  Just like they ignored those difference between D22 and D21 in the original plan.  

Heard the argument repeatedly that under the court ruling that ER should be with Chugiak.  Not what the court said.  ER was done at the expense of Muldoon.  Order told us to reconfigure District K, but didn’t say anything about L.  The plaintiffs asked that as part of their relief. But the court didn’t grant that.  Court told us to repair the problematic part of DK and both options made that repair.  That should be sufficient to meet the intent of the court.  

The court rulings  didn't say anything about District 9 or 10 either.  The court also was concerned about political gerrymandering.  And the only explanation that make sense out of these pairings is that it gives ER and the Alaska Senate one more Republican Senator.  

If ER paired together or split, either way does not happen at the expense of Muldoon, because Muldoon is taken care of in both versions.

As far as the pairings, there’s no real advantage either splitting or dividing them.  The house districts were approved.  They are all in the MOA and all contain the same people.  There will be 37,000 in it and all get a vote and have a Senator and representative. 

Districts 23 and 24 is a pairing already in place.  Under option 3b, that isn’t changed.  If there are folks who have thought about running or not running, that stays in place and there is less to change.

But Districts 9 and 10 were also already paired and neither of them have populated areas that are anywhere near the populated areas of D22. But D10 has  an adjoining neighborhood to 9 and the Seward  Highway runs through them.  Just as the Glenn Highway runs through D22 and D24.  People in one district live across the street from people in the other district.  But pairing 22 rips them asunder and has the same detrimental effects Simpson ascribes to splitting 23 and 24.  Only in the case of 9 and 10, the effects are real.

The most obvious pairing is the two house districts that are in Eagle River.  There was testimony by at least two people that identified all the organizations that call themselves “Chugiak Eagle River”.  Nobody talks about the Eagle River Glen Alps community.  Both districts 22 and 24  are part of the EagleExit movement.  If you put ER back together with ER as Option 2 does, then you can also repair the splitting of downtown along 4th Avenue.  

That leaves us to pairing of 22 and 9 and there has been a lot of testimony and discussion on that on both sides.  When making the  pairing described for JBER and ER, that leaves us with 22 with no place to go except 9.  That just flows naturally from the 23/24 decision

Slick.  The only reason that leaves us 22 and 9 is that you magically decided that the JBER/Government Hill district had to be paired with 24.  You never give us a direct comparison between  22/24 Senate seat versus 22/9  or versus a 9/10 Senate seat.  The far more natural pairing was ER with ER/Chugiak.  And then the logic would be the only “natural pairing” would be JBER/Government hill together with downtown, which then matches the puzzle pieces of Fourth Avenue.  

.  Most discussion about contiguity and the concept of ‘nearly as practicable’ has been discussed.  The concept has been misconstrued a lot of the mite in those discussion. Practicable means possible or able to be done.  The way used in constitution it doesn’t mean you have to have the best pairing, but rather as an exception, when you have two districts that aren’t touching.  Intended as an exception of the contiguity rule.  Not the best, most compact whatever.  The pairing of house districts is not the same rule as for house districts.  While we have fought to find pairings to have reasonable rational standard, there is nothing wrong with the pairing of 9 and 22.  They are contiguous.  They have a 35 mile border.  Two districts SEI and demographically similar in many ways.  And of course are included in MOA and therefore are legally SEI base on precedent.  People mentioned you had to drive out of the district.  The concept of transportation contiguity debunked as constitutional requirement.  Contiguity question is a visual, binary question.  Look at map, these are contiguous, they touch.  We heard the concept of false contiguity brought up and my name was invoked.   What I brought up was what community of Skagway Borough, they used water where nobody was and went around the main part of Juneau.  It was not compact.  And that ended up prevailing and the false contiguity rejected.  9 and 22 have 35 miles of real contiguity.

Continuity works for him when he wants it to but not if it isn’t in his favor. Am I stretching it?  Possibly, but surely not as much as he's been stretching things.   The courts have clearly said contiguity over water works and compactness IS NOT a criterion for Senate districts.  Contiguity has been a key issue in the 3B map because it is the only Constitutional requirement for Senate districts.  

There’s no question that the two districts (9 and 22) are geographically contiguous.  But by using that boundary, the 3B map is breaking apart two districts that connect neatly through streets and neighborhoods for two districts that are, as people testified, 15 to 87 miles (I think) apart by road.  

It’s been interesting how the advocates for this map have talked about all the similarities between the populations of these two districts.  Simpson even does it with D23 and D24 even though at other times they turn around and tell us that all of Anchorage is socio-economically integrated, so none of that really matters.  Nor does the alleged military connections between JBER and Chugiak/Eagle River matter.  Again, he’s using one line of logic when it suits him and saying it doesn’t matter when it doesn’t suit him.  Swapping out criteria for convenience or merely changing their weight, has been something the Board - particularly the majority - has done since they started making maps.     

A key question here is whether the Courts will accept the 35 miles of cross roadless state park to connect two distant neighborhoods in the state’s most populated borough.  Even when there are much more obvious options where pairing is like putting together two matching puzzle pieces that neatly connect neighborhoods, connect neighbors who live across the street from each other.  

The courts use different deviation standards for cities and rural areas and they stretch socio-economic matches more in rural areas, and compactness in rural areas has a different standard too.  The nature of Alaska’s geography makes those compromises necessary.  But it’s not necessary to do that in rural areas.  The courts could take the easy path and say, yes they are contiguous, end of story.  Or they could ask why the three most obvious pairings - obvious because neighborhoods are split into two house districts - are abandoned for this technically complying, but really meaningless pairing.  Will they ask if there were better options?  If they do, these pairings will be thrown out.  If they say, as they did in the Skagway case,  it’s constitutional and we won’t substitute a ‘more constitutional’ pairing, they’ll leave it be.  

But there are other considerations which Simpson brings up next. 

Finally I want to address the charge of partisan gerrymandering.  Two Republican senators and a member from Gov. Dunleavy’s admin spoke out against Option 3B.  I’m an appointee of the Governor and I’m lined up with Option 3B.  If Option 3B is a naked partisan attempt, then why did Reinhold and Holland argue against it.  They think something in Option 3B harms them.  That goes against the argument that it attempts to protect or enhance Republican attempts.

This was a clever ploy, I admit.  If two Republicans disagree, then ipso facto, it’s not partisan.  Unless logic matters.  

Partisan gerrymandering would be the other reason for the courts to overrule Option 3B.  On its face, if you knew nothing else, the idea that several prominent Republicans objected to this map proves it’s not partisan might make sense.  But let’s also remember that this is the map drawn by Randy Ruedrich, Alaska’s most practiced Republican strategist and mapper for the last 30+ years.  He’s a former head of the Republican Party.  Nobody is even hiding this.  

Let’s also remember that political parties have competing factions as well.  Lora Reinbold, the Senator from ER opposed this pairing because, presumably, it pits her against the Republican Senator on the Hillside.  But Reinbold is one of the wild Republicans who thumbs her nose at the governor.  She’s someone that would be nice for the Governor to get rid of and replace with a more controllable Republican.  And ER will elect a Republican, there’s no doubt. Sen Holland doesn’t always follow the governor’s orders either, but again, Hillside is a reliably Republican area.  Pitting these two together doesn’t risk losing a Republican seat. It simply might replace an unreliable Republican with a more pliable one.  But pairing Chugiak/ER with JBER/Government Hill, insures an extra Republican seat.  But is Reinbold really just protecting her seat?  Is it possible she knows that Eagle River just naturally belongs as one community?  After all, if 22 and 24 were joined, then she'd get another fiery Republican opponent.  I'm not sure whether Jamie Allard lives in 22 or 24, but she worked hard for Option 3B.  Maybe she doesn't want to run against Reinbold.   

The judge said they couldn't have the 22 and 21 pairing.  But they are going to cling to the 23/24 pairing.  That is political gerrymandering.  And again, what the three Republicans on the Board call the “JBER district” is actually one third downtown-ish Anchorage - and that southern edge of the district fits neatly with the rest of downtown where it was split right along Fourth Avenue.  So, this is an empty argument about partisanship.  Ruedrich doesn’t draw maps that don’t give Republicans an edge.  He plays to win.  They weren’t even subtle about this.  

I’d also note that the majority here ignored the testimony of the two sitting Senators from the districts they are pairing - people who in other situations they would give great deference to - and they are also ignoring  two other past Senators, all of whom say Eagle River should be paired as one Senate seat.  It’s a neat trick to turn around and say this proves they are not partisan. The fact that they are ignoring the testimony of four Senators who have represented this area shows how much they need to keep the 24/23 pairing.  

The most partisan is the proposed pairing of JBER and downtown.  This would diminish the voice of our valued military personal.  I can’t accept that.  I will vote for 3B.  

Oh please.  First, as I’ve said above, this is a seat whose population is 2/3 on JBER and 1/3 urban neighborhoods directly attached to downtown.  One side of Fourth Avenue has been put in one district and the other half in another district. Joining them in a Senate seat makes perfect sense.   Meanwhile the JBER part of the district has no neighborhoods that connect it with D24 - just woods.  

Then Simpson plays on patriotism and our natural admiration for the military. Let’s get the statistics - how many of the military living on JBER are even Alaska voters?  How many vote in other states?  The 1980 Redistricting Board spent a lot of time deciding whether they should even count the Military personnel who were actually residents of other states.  In the end, they included them because they couldn’t figure out how to accurately count them.  That’s all described in detail in the Hickel decision.  

And, as pointed out earlier, more JBER students go to D17’s West High School than go to ER High School.  And twice as many go to Bartlett which is D23.  Because as people have testified, people on JBER are connected to the neighborhoods near the Muldoon and Government Hill exits.  

I’d also point out here that the military is one of the best represented groups in our State legislature and they receive more special benefits than probably any other group of people.  I’ve spelled this out here.   There’s no chance that the military personnel will be diminished in Juneau no matter what district JBER is paired with.  This is a very red herring.  

As the judge weighs political gerrymandering in this case, I'd point out that the Board had no problem dispatching the Cantwell issues.  They all worked easily on it and agreed quickly. No one had a stake it the outcome and the Court's directions were clear. They also complied  with half of the judge's instructions for fixing Senate seat K - pairing north and south Muldoon.  But like with the original pairings of D22 and D21 there was no compromise.  There was acrimony. No one said anything like, "You guys are really upset.  Let's see if we can work something out."  

Instead, it was basically, we have three votes and you have two votes.   You don't act that way unless you have a very specific objective you need to achieve.  There was nothing in what Simpson said that would justify the callousness of the final vote.  There was a mission on the part of the Board majority.  And as one testifier pointed out, there is nothing to lose.  They were able to power this past a very adamant minority and it either gets accepted by the Superior Court or not.  If not, they will appeal it.  They don't have to pay for the attorney.  And if they lose at the Supreme Court level, they have no personal liability.  They will be patted on the back and rewarded by their party colleagues.  But probably not in ways that the public will see.

Simpson spoke at other times at the meeting, but this was the argument he laid you for voting for 3B.  The judge said the Board members' personal preference should not trump overwhelming public opinion.  While this was an organized narration of reasons, most were assertions that were not backed up by facts and are more about giving the Judge reasons  - even if their shaky at best - for choosing Option 3B.  The reasons of Marcum and Binkley are much looser than Simpson's.  Marcum is the Chief Executive Officer of the Koch affiliated Alaska Policy Forum whose goals are to pass legislation that favors a libertarian view point.  She truly believes that getting more Republicans in the Senate is one of her missions.  

I'll try to put up the Marcum and Binkley testimony, but no promises.