Dear Senator Murkowski:

[I got an email saying to write my Senators about the Supreme Court nomination, so I wrote Senator Murkowski, even though she already said she would vote to confirm.  I know that as a Republican she's under great pressure to vote yes.  It's easy for all of us without that pressure to fault her.  And I do believe she's wrong.  But I also have taught ethics to graduate students and public officials.  It's MUCH easier to decide another person's ethical decision than it is to make our own.  When everything one has worked for is threatened, it's often hard to do 'the right thing.'  I advised my students to save up, as fast as they could, a year's salary so that when they are asked to do something illegal and/or unethical, they could refuse, knowing that they had a year to find another job.  

What I wanted to emphasize in this letter is that the Republicans have totally messed up the process of nominating Supreme Court justices.  The Federalist Society and others have spent 40 years or so focused on developing a theory of law that would favor the interests of corporations and people with lots of money.  The Democrats missed what was happening for way too long - that was there mistake.  But McConnell's holding up of Obama judges and the Merrick Garland, messed with fair play.  He could do that not because it was right, but because he had the votes.  

So this is what I ended up sending Senator Murkowski yesterday]:

I realize your decision to vote for Amy Coney Barrett was not an easy one and that my voice will have no impact on that decision.

But this is so important I feel compelled to write anyway.  

In the past, most Supreme Court justices were confirmed with comfortable majorities, with many if not most members from both parties voting for them.  It was only when Republicans started voting Federalist Society influenced candidates, who were far to the right and did not represent the views of the American public, that  bi-partisan votes ended.  And it has only been a few times.  (not sure the chart below will show up properly. If not, it's from the US Senate website here:  https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm)

Nominee		To Replace		Nominated*		Vote**		Result & Date***
President Trump, Donald
Barrett, Amy Coney		Ginsburg		Sep 29, 2020
Kavanaugh, Brett		Kennedy		Jul 10, 2018		50-48  No.  223		C		Oct 6, 2018
Gorsuch, Neil M.		Scalia		Feb 1, 2017		54-45  No.  111		C		Apr 7, 2017
President Obama, Barack
Garland, Merrick B.		Scalia		Mar 16, 2016				N
Kagan, Elena		Stevens		May 10, 2010		63-37  No.  229		C		Aug 5, 2010
Sotomayor, Sonia		Souter		Jun 1, 2009		68-31  No.  262		C		Aug 6, 2009
President Bush, George W.
Alito, Samuel A., Jr.		O'Connor		Nov 10, 2005		58-42  No.  2		C		Jan 31, 2006
Miers, Harriet		O'Connor		Oct 7, 2005				W		Oct 28, 2005
Roberts, John G., Jr.1		Rehnquist		Sep 6, 2005		78-22  No.  245		C		Sep 29, 2005
Roberts, John G., Jr.		O'Connor		Jul 29, 2005				W		Sep 6, 2005
President Clinton, Bill
Breyer, Stephen G.		Blackmun		May 17, 1994		87-9  No.  242		C		Jul 29, 1994
Ginsburg, Ruth Bader		White		Jun 22, 1993		96-3  No.  232		C		Aug 3, 1993
President Bush, George H.W.
Thomas, Clarence		Marshall		Jul 8, 1991		52-48  No.  220		C		Oct 15, 1991
Souter, David H.		Brennan		Jul 25, 1990		90-9  No.  259		C		Oct 2, 1990
President Reagan, Ronald
Kennedy, Anthony M.		Powell		Nov 30, 1987		97-0  No.  16		C		Feb 3, 1988
Bork, Robert H.		Powell		Jul 7, 1987		42-58  No.  348		R		Oct 23, 1987
Scalia, Antonin		Rehnquist		Jun 24, 1986		98-0  No.  267		C		Sep 17, 1986
Rehnquist, William H. 2		Burger		Jun 20, 1986		65-33  No.  266		C		Sep 17, 1986
O'Connor, Sandra Day		Stewart		Aug 19, 1981		99-0  No.  274		C		Sep 21, 1981
President Ford, Gerald
Stevens, John Paul		Douglas		Nov 28, 1975		98-0  No.  603		C		Dec 17, 1975
President Nixon, Richard
Rehnquist, William H.		Harlan		Oct 22, 1971		68-26  No.  450		C		Dec 10, 1971
Powell, Lewis F., Jr.		Black		Oct 22, 1971		89-1  No.  439		C		Dec 6, 1971
Blackmun, Harry		Fortas		Apr 15, 1970		94-0  No.  143		C		May 12, 1970
Carswell, G. Harrold		Fortas		Jan 19, 1970		45-51  No.  122		R		Apr 8, 1970
Haynsworth, Clement, Jr.		Fortas		Aug 21, 1969		45-55  No.  154		R		Nov 21, 1969
Burger, Warren 3		Warren		May 23, 1969		74-3  No.  35		C		Jun 9, 1969

When Supreme Court justices are confirmed on strict party lines, it projects a clear 

problem for the credibility of the court.  I know you said that now you are voting on the qualifications of the candidate, but clearly the process is still a serious problem when you will have a justice who was opposed by all the Democratic Senators who represent far more US citizens than do the Republican Senators.  From a 2018 article (https://archive.thinkprogress.org/the-senate-is-so-rigged-that-democrats-may-never-control-it-ever-again-14ede9ac5f01/):

 "In the outgoing Senate — the Senate that placed Neil Gorsuch and Brett Kavanaugh on the Supreme Court — the 49 senators in the Democratic “minority” represent almost 40 million more people than the Republican “majority.” In the incoming Senate, the Democratic “minority” will still represent millions more people — despite the fact that Republicans grew their “majority” last night."

The removal of the cloture rule in court cases in general and Supreme Court cases in particular has meant that judges who are acceptable by at least some members of the minority party is no longer necessary.  

I would argue that these are procedural issues that are destroying the credibility of the US Supreme Court, just as the Congress' credibility has been seriously harmed in recent years.  

Voting Amy Coney Barrett to the Supreme Court with only Republican votes moves the US government to further dysfunction.  The tactics of Majority Leader McConnell to not allow Obama court vacancies to be filled - including the outrageous maneuvering over Merrick Garland and then the even more outrageous change of "principle" to approve Barrett in the middle of voting.  This reveals McConnell as simply ignoring democracy and using the power he's accumulated - including changing the cloture rule - to force one more far right Republican justice onto the court.  And it will force Democrats to use similar kinds of actions to reestablish a US Supreme Court that is more in line with the values of the US population and interpretations of the Constitution that value individual human rights over the rights of multinational corporations.  And Republicans will loudly cry foul, as Democrats are doing now.

I've voiced my approval of actions you've take as Senator when they represented my values and I've voiced my disappointment with other actions you've taken.  

I know you walk a thin line, and I don't know that if you voted against Barrett it would even be enough to block her appointment.  But I'm extremely disappointed now at your decision and ask you to reconsider it, given that her appointment will mean all out warfare between Republicans and Democrats in the Senate for years to come.

[This won't (perhaps hasn't by now) changed Murkowski's vote, but it does mean to me that Alaskan Democrats will need to find a strong candidate to run in 2022.  I suspect that fact that she showed doubts at all, made her persona non grata among the Republicans and they will find an alternative candidate in the Republican primary.  Though we are voting on a proposition this election that would change our voting to Ranked Choice.  If it passes the control of the parties will be weakened.  So everything is up in the air.  Even the removal of a demented president is being left to the public because the Senate Republicans didn't have the integrity to do the job themselves.  Any private corporation would have removed a CEO like Trump - either by gently by taking away his powers, or by firing him.  The Republican  Senators couldn't do that.  They have no credibility.   

And, by the way, it didn't seem worth the effort to even copy this and email it to my other Senator Dan Sullivan.]

I Found Trump's Health Care Plan - It's Called "Go Fund Me"

Trump campaigned in 2016 saying he would get rid of Obama Care and replace it with something much, much better.  So far the closest we've gotten is the regular teaser, "A few more weeks and we'll have it."  Biden challenged Trump on his missing health care plan again at Thursday night's debate and Trump claimed to have a great health care plan coming up.  

Well, I think I've found his plan.  It's called Go Fund Me.  

The Go Fund Me website has a whole category called "Health Insurance Fundraisers".  12 appeals show up, but at the bottom of the page you can ask for more and get 12 more, then 12 more.  I stopped at 36, but it kept going.  

This is the defacto Trump Health Care plan.  

And I'm pretty sure the main thing many conservatives, and certainly Trump, oppose about the ACA is that it was Obama's program.  It's Obama that they want to erase even more than "socialized" medicine.

Best Political Ad, And Some Shabby Ones

 Since all my 'viewing' is online, I don't see the political ads on television, unless someone puts them online.  So my sample is small.  But the Jaimie Harrison ad below really impressed me.  It's not an attack ad and it goes beyond platitudes about helping the poor or lowering taxes (though it's still a feel good ad, not a policy ad.)  AND it's visually really cool.  His campaign against sitting Judiciary Committee chair Lindsay Graham has attracted a lot of money from outside of South Carolina, so he's got the cash to produce better than average commercials.  

Check it out.  Then we'll look at some local campaign mail I got that isn't so good.

Whether you need access to affordable healthcare, high-speed broadband to learn and work from home, or someone to pave your dirt road, I'm going to fight for you in the U.S. Senate. pic.twitter.com/UgoQOtVCnT

— Jaime Harrison (@harrisonjaime) October 16, 2020

Now for the local stuff.  I'd note, that in both cases, these are races outside of my own local district so I'm not sure why I'm getting them.  

A.   "Chris tuck is attacking your right to choose"

Chris has been in the State House at least ten years.  He's a Democrat and has had party leadership positions.  

This ad comes from Republican Katherine Henslee who is challenging him in the election.  I scratched my head when I read this.  A Republican is attacking a Democrat for being anti-abortion.  I called the candidate it was from.  

Steve:  Why are you sending out attack ads about Chris Tuck on abortion?

Katherine:  I'm surprised you think it's an attack ad.

Steve:  Well you attack his position on abortion. 

Katherine:  It's the truth. 

Steve:  So, are you pro-choice?

Katherine:  No, I'm pro-life.

Steve:  Then why are you attacking him on his pro-life stance?

Katherine:  Well, he doesn't support pro-life legislation as strongly as I would.  

Steve;  But I suspect he probably aligns a lot better on most of the other issues with pro-choice voters than you do, don't you think?

Basically, she's trying to sow seeds of doubt among pro-choice voters.  I couldn't get hold of Chris, but another person involved in Democratic politics told me that he is, personally, against abortion, but he's a Democrat and doesn't push against abortion in his political role.  

I'm not sure what sort of effect this has on voters.  Probably not much, but it may be like the attacks on Hillary Clinton and now Biden, to try to make some Democratic voters just leave their ballots blank rather than vote for Chris Tuck.  

My Opponent's left-wing Antifa Supporters

The most effective part of this letter is the photos of defaced signs.  But we don't know who did this. And there's nothing to suggest that Revak knows either.  There's even the possibility that he did this himself, though I wouldn't make that claim without more evidence.  

But the rhetoric looks like it's straight out of national Republican campaign book:

• "Left wing Antifa supporters"
• "Organizations that work hard to defund the police and bail out violent rioters"
• "We will beat him and Antifa"
• "will stop at nothing to steal this district from Republicans.  Their thugs have come out in force."

And from the back page:

• "My opponent has support from outside money and influence. While our opponents want to suppress our resource development, limit our economic growth, and waste our savings, I'm fighting for what is best for the future of Alaska and for you"

1.  Antifa.   Wow!!  You'd think Antifa folks are running all over Alaska, rioting, and destroying property.  This is pure Republican  propaganda.  

Basically, the most 'real' thing about Antifa is how the Republicans the word to create a "Left" boogie man  that's  rioting and threatening to decent people.  It's part of Trump's strategy to throw whatever is said about him back onto his opponents.   But as this Washington Post article outlines, 

• there is no monolithic organization called Antifa; 
• it doesn't mastermind violence at BLM rallies;
•  it's not affiliated with the Democratic party; 
•  it's not funded by billionaires like George Soros; and 
• they aren't 'the real fascists.'

At best it's an idea that people scattered around the US identify with in opposition to the fascist direction of the far right.  But again, Trump will even take a name that is "anti-fa(scist)" and say that it is fascist.  

And there have been NO riots or even rowdy BLM marches in Anchorage or other parts of Alaska.  Only benign peaceful events.  Clearly this is nationally directed rhetoric by people who know nothing about what's happening in Alaska.  If Alaskan's did write this, it's based on national talking points, not Alaskan reality.

2.  "Steal this district from Republicans" assumes that a district is owned by one party or another. But each district belongs to all the constituents of the district.  There are no "Republican" owned districts for Democrats or Independents to steal.  I find this particularly invidious.

3.  Outside money and influence.  

Actually, "outside" was written with a small 'o' suggesting he didn't mean Outside of Alaska. But it doesn't matter, since pretty much all candidates have money from 'outside.'  Nationally, it's clear that Senators from red states represent tens of millions fewer voters than Senators from blue states, but have more Senators, as this chart from 538 shows:

So people in the more populous blue states recognize that ideological Supreme Court nominees get approved in the Senate because small state Senators (each state gets two regardless of population) representing a minority of the US population, make up the majority of US Senators.  And so they know that if they want their majority views to prevail in the Senate, they have to contribute to Senate races outside of their own states.  

And both Republicans and Democrats only complain about Outside money when it's their opponents Outside money.  I haven't hear Revak complain about all the Outside money Governor Dunleavy, who appointed Revak to his Senate seat, raised.  

4.  Defund Police

Another national Republican talking point.  In Anchorage,  conservative Mayor Sullivan defunded the police during his terms and more liberal Mayor Berkowitz added back police.  And nationally, the argument isn't to simply defund police, but rather to steer money to people and programs better equipped to deal with the causes of crime and defusing conflicts.  The argument is that the police have to deal with too many issues they aren't trained or equipped to handle.  Like poverty, addiction, and mental health issues.  Fund experts and programs dealing with those issues and free the police to handle the real criminals.  

That's it, a review of the campaign media of three candidates that came my way.  

I'm Not Really Being Lazy Just Because I Don't Have A New Post Everyday

 Because, actually, I do.  And sometimes two.  

Since I started tracking Alaska's COVID-19 cases, other posts aren't showing up so often.  I started just doing COVID-19 posts here, like this post.  But they were taking too much room and I was repeating the same charts over and over.  So I switched to a "Page" - a tab in Blogger jargon.  So now, unless you click on the tab above (just under the orange blog banner) it looks like I haven't done a new post.  

But in addition to updating the table with the day's new numbers, I do a brief summary as well.  Like this one from yesterday:

Monday, October 19, 2020 - Good signs, but not all good.  

Today was the second day in a row with no new deaths or new hospitalizations.  October 4 was the last time we had just one day with no deaths or hospitalizations.  We have to go back to September 14 and 15 for two days in a row like that.  And before that?  June 27-30 when there were four days with no deaths or hospitalizations.  This might just be a problem of not getting the hospitalization reports in over the weekend.  But it's a glimmer of hope.

There were 208/200 new resident cases.  It's four days in a row with 200 or more cases.  That has never happened before in Alaska.  Not so good.  The more cases, the more eventual hospitalizations and deaths to follow.

27 reported recoveries and 175 MORE active cases - for another all time high of 5235.

11,012 new tests, one of the highest totals. [10/20/20 -Had typo in chart yesterday.  Not sure how many new tests, yesterday.  The updated past numbers are totally different from what I documented daily.] We're at [5]33,723 tests total.  Our state population is about 730,000.  But this number is NOT how many Alaskans have been tested, but how many tests have been given.  Many essential workers get tested over and over again. 

The test positivity rate dropped slightly from 4.78 yesterday to 4.6 today.  Under 5.0 is good.  

The State keeps other numbers I don't keep track of on the chart above.  I've been reporting Reproductive Number in the daily reports lately.  Today down slightly to 1.07.  Under 1 is the goal.  We're close.

I haven't mentioned hospital capacity for a while, mainly because it hasn't been an issue.  But when I looked today, The hospitals are getting a little more crowded.

57% of adult beds are occupied.  There are 550 vacant.  That's for everything, not just COVID-19.

68% of adult ICU beds are occupied.  There are only 43 left.  Again, not just COVID-19 patients.

Ventilators aren't an issue at this point.  Only 9% being used with 324 left.  

There are 41 COVID-19 patients in hospital beds and 24 more suspected COVID-19 cases.  

What I'm learning is that the State's numbers are fluid.  That is they get adjusted as more info comes in - maybe some new cases turn out to be non-residents instead of residents, or a bunch of tests come in from several days ago.  I'm just doing each day's numbers and if anyone every wants to know how much the State's numbers have fluctuated, they can compare what the State has posted to what I have posted.  Though that won't show how often the State adjusted their numbers.  

We've been seeing about 200 new resident cases a day this last week or so and the number of active cases keeps going up because new cases outpace recovered cases.  Though recovered cases are one of the least up-to-date numbers they offer.  

On the positive side, our Test Positivity has only been over 5.0 a couple of times.  (5.0 is the target number set by the WHO.  And our Reproductive Number is only fractions above the target number to be below: 1.0.  

But with not much effort at all, the numbers could explode, and our hospitals could get overpacked.  

Anyway, just wanted to point out that this action is taking place a little hidden from sight in the tabs. There are two COVID tabs because the first one was getting really big.  It goes from June 1 to September 30. (Before that I was doing daily COVID-19  posts, which you can probably find most easily by looking at the Blog Archive (right had column) in March, April, and May.  The new tab started October 1.  

Stay well and if you must engage the anti-maskers do it gently and just listen, don't argue.  Ask questions if you have to say anything.  They have issues regarding power mostly, so telling them to do something pisses them off.  Like a rebelling teenager who will do the opposite of what you ask them to do.  These are chronological adults, but emotional teenagers.  (Yeah, that's a pretty broad generalization, but I suspect it's more accurate than not.)

"When You Find Hypocrisy In The Daylight, Look For Power In the Shadows" - Sen. Sheldon Whitehouse At Barrett Hearings

I didn't see all of the Amy Coney Barrett hearings.  But of what I saw, Senator Sheldon Whitehouse had the most insightful things to say.  He stepped back and put this particular nomination into both the context of recent events and also much longer term events.  As he says, he's looking beyond the stage of the puppet theater of the hearing to see who's pulling the strings and pushing the sticks that move the puppets.  

Most important is his following the money that:

• Has spent 40 years educating law students in a very conservative way of interpreting the law.
• Funded shadow organizations that make multiple  Friend of the Court filings on the court cases they have themselves created
• Also funded Federalist Society that gives Trump his Supreme Court nominee names

He looks at where the money comes from and traces most of it back to the same few people.

He then says, while the media have focused on abortion and LGBTQ rights (which are important), the real story deals with 80 cases that were decided by 5-4 rulings along partisan lines.  These cases had four themes important to large corporations:

• Unlimited Dark Money - that allows the wealthy and corporations (yes those do overlap) control legislatures that make the rules and even to get people appointed as head of federal agencies that regulate them.  Citizen United is the key decision here, but there are many others
• Knock the Civil Jury Down - The powerful can't control civil juries like they can control Congress.
• Weaken Regulatory Agencies - particularly pollutors to weaken their independence and strength
• Voter Suppression and Gerrymandering - making it harder to vote for citizens who might vote against their interests - Shelby County decision on no factual record against overwhelming support on the other side, that knocked out voter suppression protections and a bunch of states started suppressing the vote.  Same on gerrymandering.  

Whitehouse makes a great presentation providing the evidence clearly.  This is critical to getting a good sense what's happening and why Democrats are upset with this nomination.  The Republicans have been packing the courts for years and years - through 

• creating a legal theory, Originalism, that I consider the Intelligent Design of Constitutional Law, and 
• through blocking Democratic nominees and holding off Merrick Garland, so they could fill those seats

I don't put up that many third party videos here.  Only ones I think are really worth your time.  So please figure out a good time when you can listen and then do so.

While we're on this topic, let me also point out that the words "extreme liberal" is not the opposite of "extreme conservative."  

"Extreme liberals" on the court have worked hard for individual rights - desegregating schools, supporting voting rights, giving women equal rights to men, recognizing the rights of LGBTQ folks.

"Extreme conservatives" have fought all those individual rights in favor of the rights of corporations, going so far to apply the individual rights in the Bill of Rights to corporations.  

The liberals are much more in synch with the beliefs of most US citizens.  The conservatives push legal theories that go against what most citizens hold, but they do a good job of marketing their contrary positions, by framing abortion as murder, and just outright lying.  

The two articles below offer more on this:

Mother Jones article on Sen. Sheldon Whitehouse comments at Barret hearing: https://www.motherjones.com/politics/2020/10/watch-sen-sheldon-whitehouse-school-amy-coney-barrett-on-dark-money/

Here's a piece written by Sheldon Whitehouse spelling out the dark money interests in shaping he Supreme Court and how they do it.  

LA Times Article Looks At Republican Candidates Reversing Their Anti-ACA Stances - Including Dan Sullivan

Alaskans have all recently watched as Senator Dan Sullivan was forced by a leaked video to take a strong Twitter stand against Pebble Mine.  In the video, Pebble executives say that Sullivan is in their corner, but keeping quiet before the election. 

An LA Times article today says Sullivan, along with other Republicans like Iowa's Joni Ernst, are backing off their earlier anti-ACA stands.  

"WASHINGTON — Contempt for the Affordable Care Act — Obamacare — was so central to Sen. Joni Ernst’s 2014 election campaign that the Iowa Republican, in a TV ad promising she’d “unload” on the law, pulled out a handgun and fired repeatedly. “Give me a shot,” she asked voters.

Six years later, the first-term senator is battling for reelection, and she’s holstered her gun.

Ernst is not alone. Earlier this month, she joined fellow Republican Sens. Cory Gardner of Colorado and Dan Sullivan of Alaska — two other would-be assassins of the 10-year-old healthcare law who are now fighting for their political survival — in breaking with their party to support Obamacare on the Senate floor. They voted with Democrats on a measure opposing a Republican-backed case against the law that’s now before the Supreme Court.

As that vote showed, endangered Republicans are frantically trying to pivot away from the “repeal Obamacare” slogans that served them well for much of the last decade. Those are now a liability amid a jump in public support for the healthcare law.

Candidates also are playing down the long-standing legal challenge initiated by a coalition of Republican-led states that’s reached the Supreme Court. And from President Trump on down, they claim to be guardians of Obamacare’s most popular provision — a guarantee of insurance coverage for people with preexisting conditions — though that mandate would fall with the rest of the law if the court’s conservative majority sides with Republicans."

As you can see from the chart below, Alaska is one of only four states not involved in the case, either for or against the ACA.  

The chart comes from a Kaiser Family Foundation webpage that explains the court case and who all is involved.  Click on the chart to enlarge and focus it.

But I'm more troubled by unflagging loyalty to Trump as one of the bots on the Republican side of the US Senate.  He acts like a kid who doesn't want the teacher to call on him.  Sort of like the Pebble guy who said he's trying to lie low until the election is over.  And while he said he didn't vote for Trump in 2016, he now says he will.  

One has to wonder who is holding all those Republican Senators in line and voting to confirm Amy Barrett's appointment to the Supreme Court.  Senator Whitehouse gave the most insightful presentation on that in the Hearings and I'm hoping to get up a post about that soon.  I'll link to it here when I do.  

[UPDATE October 17, 2020:  Here's another article from Salon:  Alaska GOP senator routinely voted for policies that benefited family's chemical company]

Sex In The City - Anchorage Edition

 I've gotten a few calls and emails from Outside friends and family asking about our Mayor's resignation.  Our local situation, has gone national.  Sex does sell newspapers and does gather clicks.  

It seems worth noting here.  We have a good mayor who's worked hard to deal with homeless issues and early on took a strong stand on COVID-19.  And even though we are now finally getting higher new case counts (between 150 and 255 statewide for the last week) our state Test Positivity level has stayed below (with a one day exception)  the CDC benchmark for problems of 5.0.  

Nevertheless, there's a vocal minority who have been showing up at Assembly (our city council) meetings to oppose the closing of bars and indoor eating restrictions at restaurants.  

The homeless initiatives have also generated strong vocal opposition to the mayor too.  While people complain about homeless encampments near their homes, when the mayor developed a large coalition with key funders to buy some properties to house the homeless and to set up an addiction treatment center, neighbors of those properties were enraged.  (I'd note I took an 8 week class last fall on this topic with key local people working on this problem and the municipality has adopted the best approaches from around the country - particularly Housing First - to attack this problem.)

In any case, the mayor's term would have been up next July, after an April election for a new mayor. A relative sent a link to a long Defector article on the Anchorage Mayor story.  While it tends to treat this as "Wow they do weird shit in Alaska" story, it does seem to have all the facts pretty much in order, so if you want more details, you can go there.  (I would note that while they mentioned that one actor in this story had been an escort, I would add that she has stated strongly that she was not a sexual escort, but rather a 'date' someone could hire.)

Society And Sexual Pictures

But one thought has to do with online sex related activities.  It seems there is a generational divide over using dating apps and sharing sexually explicit photos with people.  I say generation gap meaning only that younger folks use these apps  differently and more frequently than older folks.  But clearly older folks who are single, divorced, or widowed use them as well.  And some married folks do as well.  In any case, mores are changing. 

The Defector article makes that point as well:

 "I think ours is now a fairly permissive, post-affair society and today’s married office-holding rogues can get away with consensual, inappropriate messaging relationships if they want to. That said, if I were Berkowitz, I’d be extremely keen to peace out of this job."

The whole phenomena of selfies and sexting combined with the unforgivingness of the internet suggest that mores about public nudity are going through a transition.  And I think this is probably a good thing.  While clothing makes sense as a form of protection from weather and other hazards, we seem to have a fetish about public display of human genitals.  I recall being in Bali in the late 1960s when it wasn't unusual to see women in public with their breasts uncovered.  And I encountered a tribe in Uganda in 1970 where clothing consisted of a string like belt that exposed everything.  

It would be interesting to know what percent of the US adult population have shared pictures of themselves in texts or chats.  I suspect the number is much larger that people would suspect.  And I suspect it's still enough of an issue that many people would lie if asked about it.  

But such photos have spilled into politics.  Rep. Joe Barton of Texas resigned after a photo was published.  Representative Katie Hill of California resigned after pictures were published, though in her case it seems to be more about having a relationship with a staffer,  though she considers it a case of revenge porn by her ex-husband.  Rep. Weiner of New York resigned over a photo in 2011.

 A 19 year old gay Texas city council member who was forced out of office when someone anonymously sent nude pictures of himself he'd shared with someone on the gay dating app Grnder. 

At this point, with lots of people sharing  sexual pictures and videos of themselves to intimate partners, or online, inevitably some of those pictures are going to go public, either by accident or intentionally.  Revenge porn  and dick pic are both in the dictionary.   More and more mainstream movie actors are involved in fairly sexually explicit situations on film.  Mores are changing.  

It's a long time since Senator Gary Hart was knocked out of the 1988 presidential race because of a picture of him on a boat with an attractive woman on his lap.  

Given President Trump's numerous sexual misadventures, it would appear that sexual indiscretions are not an issue with Republican voters.  But they are used to attack political opponents.  

The real issues related to the Mayor of Anchorage, in my mind, are the ones he has to resolve with his family.  They really aren't the business of the people of Anchorage and don't affect his ability to do his job.  Unless there's more that we haven't learned about, I'm sorry he has resigned.  

Revisiting Originalism

 As I listen to the Supreme Court nomination hearings, it seems like this is a good time to revisit a previous post on originalism that I wrote after Justice Scalia's death.  From February 16, 2016.  This was the Supreme Court opening the Republicans, led by Senator McConnell, argued should not be filled during a Presidential election year.  An argument that we now clearly see was simply rhetoric to justify not filling the seat, not an argument made based on principle.  We know that since they are ignoring that now, adding more rhetoric to justify their 180˚ switch, adding the footnote about a president and senate of the same party.  Even though millions of people have already voted in the current presidential election.  Below is the previous post.

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

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 to allow 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 fictional account of constitutional authenticity that allowed for a wide leeway of interpretation.

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. 

Here's a follow up post on this:  https://whatdoino-steve.blogspot.com/2017/03/as-neil-gorsuch-takes-center-stage-what.html

Biden Appears Ahead In Mail-In Ballots. When Do The States Count Them?

 I've been getting the sense that Biden voters are going to vote early, for several reasons:

• They want to make sure their vote counts
• Questions about mail delivery time
• They don't want to wait in long lines on election day, perhaps get turned away
• They don't want to be exposed to COVID-19

Trump voters, on the other hand, are more likely to vote in person on election day:

• Trump's been telling them mail-in ballots won't be counted
• They want to be sure their votes get in
• They aren't worried about COVID-19

And now I come across this Tweet with a poll that confirms this:

Enormous voting mode gap in new ABC/WaPo poll:

Early in-person/mail (58%): Biden 70%-26%
Election Day (40%): Trump 64%-32%

— Dave Wasserman (@Redistrict) October 11, 2020

Here's more information from USA Today (Oct 6, 2020)

"More than 5.6 million people have voted early in the presidential election, vastly exceeding the pace of 2016 as Democrats amass a commanding lead in returned mail ballots."

In Florida – where Republicans historically have a strong advantage in absentee voting – 497,000 Democrats have returned mail ballots, compared with 270,000 Republicans. In North Carolina, 206,000 Democrats have returned mail ballots, more than triple the 68,000 Republicans who have. Thirty-five percent of North Carolina Democrats who requested mail ballots have returned them, compared with 29% of Republicans. 

Even in ultra-conservative South Dakota, where Trump won the 2016 election by 30 percentage points, Democrats have returned nearly as many mail ballots (26,900), as Republicans (29,699). Fifty-seven percent of Democrats who requested mail ballots have returned them, a greater share than the 45% of Republicans."

A Republican analyst is quoted saying that the problem for Democrats is that more mail-in ballots get invalidated then in-person ballots.  It's true, you do have to read the instructions, put the ballot in the right envelopes, and sign the envelope, and often you need a witness signature.  And voting officials have a lot of leeway in rejecting signatures that don't match what's on record.  

How Will People React On Election Night?

When I started this post, I thought that there were states that would wait until after the election to count the mail-in votes.  And that this would lead to Trump taking an early lead and Biden votes coming in the next day or more.  

That would lead to Trump claiming victory and Trump supporters believing they got robbed when the numbers change in the following day or three.  

But before posting, I checked when mail-in/absentee votes get counted in various states.

I was wrong.  Mail-in votes get counted in all but one state on election day, starting early in the morning in some states, or after polls close in other states. 

Then there's 13 states where ballots can either be tallied starting before the election or set up to be counted, but not actually counted.  In all states, no tallies may be released before the closing of the polls on election night.  Here are the states that may start counting before election day: (All this information comes from the National Conference of State Legislatures.)

Before - no specific time

• Connecticut - "At the discretion of the local registrar of voters."
• Kansas - 'Prior'
• Ohio - Scanned before, but not disclosed
• Oklahoma - "Prior' with approval of Secretary of State.  
• "When counting occurs before the election, the county election board shall remove the election results storage media from the voting device, without obtaining a printout of results, and seal ballots counted that day in a transfer case secured by the sheriff until the time the board next meets to count. Results cannot be reported earlier than 7 p.m. on Election Day."
• Utah - 'Before'
• Virginia - 'Before'

Before - with a specific earliest date

• Florida - 22 days before
• Colorado - 15 days before
• Arizona - 14 days before
• North Carolina - two weeks before 
• Oregon - 7 days before
• Montana - 1 day before
• Nebraska - 24 hours before

On Election Day

The times range from 7am on election day until after polls close.

This includes all the other states EXCEPT Kentucky which says:

"Counting begins after all absentee ballots have been processed."

The Kentucky absentee voting pages says:  

"Mail ballots must be postmarked by Election Day, Nov. 3, and received by Nov. 6."

Since they can't can't count mail-in ballots until they are all processed, and they can't process them all until they are all in,  this would mean, following the rules of logic,  they can't count them until November 6 at the earliest.   

So, only Kentucky appears to have a system which could result in the bleaker scenario I'd originally feared - where Trump votes would pile up on election night, possibly leading Trump to declare victory before most votes were actually counted.  And since Kentucky is a red state, it isn't one that the rest of us will have to wait for to know the results of the presidential election.  If Kentucky goes blue, then most other states will have gone blue already.  Though McConnell's seat, if we are lucky, might take a while to be determined.  

So it looks like my initial concerns about early tallies giving Trump a big lead are unfounded.  States (except Kentucky) will be able to count mail-in ballots by election day.  In some cases starting early in the morning.  A quarter of the states will be able to count (but not disclose the results) prior to election day.  And with so many mail-in votes already arriving at election offices, it would appear there won't be a huge last minute deluge of absentee ballots.  

I just dropped off our ballots at the drop off box in front of the election office.

You Believe Climate Change Is Real, But Feel Fighting It Is Overwhelming - Well, This Is For You

 I bumped into CCL (Citizens Climate Change) about 10 years ago.  Someone at a table at an event.  He invited me to a monthly meeting.  I didn't realize we would be calling into a national meeting with an incredible guest speaker.  I was hooked.  

Since then I've participated in over 100 such meetings.  The technology has evolved from speaker phone to live video.  CCL has gone from 40-some US chapters to 476 and 602 international chapters since that first meeting.

Today's meeting featured Alex Posner, organizer of S4CD (Students for Carbon Dividend).  Alex first talks about the organization and who's involved - student body presidents from across the US, spanning the racial, gender, and ideological spectrums.  All supporting legislation to set up a carbon fee and dividend program as a major step to reducing carbon in the atmosphere.  It's the key focus of CCL as well.  

They're so well organized that the video of the meeting has been up a couple of hours already and so I've embedded it below.

The first 3:53 minutes of the video is CCL Executive Director Mark Reynolds introducing today's meeting and Alex Posner.

Then Alex talks about the S4CD and gives a great list of 10 Strategies and Techniques for organizing. Finally, a few questions.  This ends about 27 minutes in. Then Alex performs a magic trick with lots of relevant symbolism.  Then there is ten more minutes of meeting.  

After that the Alaska Chapter met in a different zoom call, with special guest Robin Ronen talking about environmental justice issues - particularly the climate change forced move of the village of Newtok.  

I do encourage you to watch/listen to the video.  Take your mind off of COVID and the elections and see that people are continuing their efforts, through all this, to fight climate change.  It could give you hope.  It's the most efficient and effective and decent organization I've ever encountered.  

If you want to see if there is a CCL chapter near you (there is) you can see the list of US and International chapters here.  I promise you that not only will you be able to help slow down climate change, but you'll meet some really interesting and warm folks.  (There are four chapters in Kentucky, nine in Iowa, over 20 in Ontario, CA, nine in Nigeria.)