A LITTLE UNCONSTITUTIONAL AND A LITTLE PREGNANT COMPARED

 

WOW!!   Face Book has come alive with the joyous news.  One says:

“SCOTUS has REJECTED the Texas lawsuit. Thank you for doing the right thing.”

And, from a half-wit who has probably never read the Constitution: “It’s about damned time the courts started holding up the Constitution.”

The short answer is, “Not this time, it didn’t. It may have reached a pragmatic resolution, but it sort of kicked the Constitution in the knee, too.”  When, oh when, are we going to bring a required Civics course back to America’s schools?

Still, I am at sixes and sevens on this one.

First:  The Court did the practical thing, and I am glad they did…except for the part of me that loves the Constitution.  Of course, the very same people who are appalled by the President’s challenges are the same ones who urged Al Gore to “unconcede” in 2000 and to challenge the results of the election in favor of President George W. Bush.  Apparently, it is only immoral, evil, and fattening to challenge an election if you are a Republican.  But I digress.

Another Face Booker excoriated the Court for its per curiam decision.  Why didn’t the Court write a 9-0 opinion stating that “…enough is enough and that this kind of …abuse of the legal system will not be tolerated?”

There is a simple answer to this one.  If you don’t need to do so, don’t do it.

There is no way the Court was going to come to that proposed conclusion.  The best that they could do is to acknowledge sub silentio that they blew it with the Pennsylvania decision before the election and that, the news media having convinced the rest of the world that its decision regarding who won is the only one to be trusted, it is too late to do anything about it. 

It reminds me of a story Stan Musial once told.  Augie Donatelli, a great umpire, once called Musial out at second base after the shortstop missed the tag.  “Augie?” Musial asked.

Donatelli said “Look, Stanley, you know you were safe.  I know you were safe.  He (pointing at the shortstop) knows you were safe.  But those folks in the stands saw me call you out, so you’re out.”

Millions of votes that should never have been counted were, unconstitutionally, counted and Joe Biden will be our—yours, mine, every American’s—President come 20 January 2021.  Just as was Donald Trump on 20 January 2017.  I’ve read the Constitution, and we only get one President at a time, something the “He’s not my President” morons in both parties just don’t get. 

Now, let’s talk about why and how President Trump could have been robbed of the election and why he should, nonetheless, at this juncture, keep doing the job he was elected to do until high noon on 21 January next, and then go home and do what every President since George Washington—except for Barack Obama—has done.  Butt out and let the new guy do it his way.

There is a woman, one of those New England elitist types, who scorn average Americans in the flyover States.  She has ended up, uninvited, on my Face Book page for the past year or so. Her name is Heather Cox Richardson, and the nonsense she spouts is usually laughable.  But she is one hell of a writer, so her drivel can be convincing if you admire excellent writing and know nothing about the Constitution or American History.  She is one of Lenin’s perfect “useful idiots.”

Take this from her 10 December article:  Democrat Biden won the election by more than 7 million votes [irrelevant] and 306 to 232 electoral votes [as Snopes, et al, would say, “partly true”].  She, an obviously educated woman, must surely know that if 7 million more Americans voted for Joe Biden than for Donald Trump, but all 7 million came only from California, New York City, and Chicago, and if the President carried enough States to prevail in the Electoral College, he is President.  The Democrat protest, using Little League rules, that it was Hillary Clinton’s “turn” and only the Constitution got in her way in 2016 is silly.

And it is misleading drivel of the sort that makes Americans in 2020 distrust each other.

So, you may legitimately say, how come you don’t just roll over and take it and acknowledge that Joe Biden is the lawfully elected President?  Well, because it is not an either-or game.  I’ll say it again:  I think Joe Biden received a sufficient number of votes in a sufficient number of States and Commonwealths to become our next President.  But I think his party played dangerously fast and loose with the Constitution to ensure it got the outcome it wanted. 

Time for some history.

Playing with the contents of the ballot box is a real threat to American “democracy.”  In 1960, the Chicago Democrat machine and the Texas Democrat Committee made sure that Kennedy-Johnson won the 24 Texas and 27 Illinois electoral votes. Kennedy won, 302-219.  If Illinois and Texas had gone the other way, Nixon would have won 270 to 252.

I remember that election, the first one that I do actually remember.  Cook County did not release its vote count until after the results from every other county in Illinois had been reported.  Kennedy won by just shy of 9,000 votes, many of whom were almost assuredly long dead and buried before election day.  Why am I so sure?  Well, as the proud son of a pair of proudly “yellow dog Democrats” in one of the few strongly Democrat counties in the State, I heard even them wonder about “Chicago.”  (Most non-Illinoisans will never know the intensity of distrust between Chicago and “down-State.”)

Nixon was urged to contest the election but conceded.  I recall hearing that he said something along the lines that the unstable world we live in needs to be immediately confident that America has a President right now.  The sad thing is that the theft of the 1960 election and his honorable response to that theft probably planted the seeds for Watergate, a whole series of steps President Nixon took to make sure he wasn’t robbed again.

As an aside, one Saturday morning some 25 or so years ago, I sat in a conference room with Sam Dash of the Ervin Committee fame.  As we waited for a new draft of some pleading or another to come from the “word processing center,” I told him that I had been stationed at Marine Corps Base, Quantico at that time and read the Post, where the political reporting in Section Two—the Local section—far surpassed most political reporting on the front pages of the major newspapers in America.

“You know, Professor, I think that if I had been advising the President, I would have told him to go out to the briefing room ‘right now.  Here’s some notes  

 You know folks, being President has some amazing perks.  Washington can be at a standstill                 under a three inch blizzard, and the President may say to himself, “You know, a glass of fresh                  squeezed Florida orange juice would really hit the spot right about now.  Fresh squeezed, right             off the tree.  Yeah, that would be tasty.”  And in an hour or two, someone who had heard that                muttered statement would bring in a glass of orange juice from an orange, pulled from a tree in              Florida, and flown to DC within those past two hours. 

  A few weeks ago, some of my closest advisors and I were talking about the upcoming election.  I          looked out the window and mused, “You know, Senator McGovern has got the Democrat                      nomination pretty well locked up.  I’d kinda like to be a fly on the wall over in Larry O’Brien’s              office over in the Watergate to see how they are going to screw McGovern out of the                              nomination and give it to Teddy Kennedy.” 

  Now, you all have heard that there was a break-in in the DNC office, and it appears that it was               organized by some people I have trusted and admired, thinking that ‘Well, we can sure find that             out.’

  That is, of course, against the law.  I have regretfully accepted the resignations of some of my                  most senior advisors for failing to promptly tell me what had happened, and we will trust the                   legal system to take appropriate action against anyone who might have broken the law.

            

   In the meantime, I need to get on with the Country’s business.  [PAUSE HERE SIR.]

   BUT ....... You know, I would like to know what O’Brien and the DNC are going to do to Senator           McGovern.  Might be a story in that, don’t you think?  Well, thanks everybody.’

 

Professor Dash looked at me, laughed, and said, “You’re right.  That would have been the story and I would have just been another Professor at Penn Law.  I’m glad they never asked for your advice!”  That’s one of those conversations you never forget.

Now, where was I?

That is why I wish the President could have brought himself to concede—and then run in 2024 to fix what is about to happen to a country in which the primary and only universal qualifications for service in the government appear to be race and gender.

But he did not and I can accept that, too.  You see, what the Democrat Party did is just another example of their disdain for the Constitution of our Republic.  They were afraid they could not win within the bounds of the Constitution, so, applying the Emanuelian Principle beloved in their Party since the 1990s, they chose to make sure that adherence to the structure created in Philadelphia in 1787 did not get in their way and then made sure that the disaster of the 2020 pandemic did not go to waste.

About the Constitution

Article I, section 4 of the Constitution, the “Elections clause,” provides that:

            The Times, Places and Manner of holding Elections for Senators and Representatives, shall be                 prescribed in each State by the Legislature thereof; but the Congress may at any time by Law                 make or alter such Regulations, except as to the Places of chusing Senators.

Congress has used that exception to enact laws or propose amendments to the several States several times.  It enacted a law, approved by the President, to set the first Tuesday after the first Monday in November as the date of all biennial elections for Representatives to Congress and, after the ratification of the XVII amendment, the election of one-third of the Senate.  Amendments XIX and XXVI granted the right of women and 18 year-olds to vote.  (It would be interesting to see what would happen if a State adopted a law stripping women of the right to vote in any elections other than for Representatives in Congress, Senators, and the President.  But we’ve already got enough on our plates, so, to quote many a Supreme Court decision, I’ll leave that for another day.)

I’m going to use Pennsylvania as my exemplar, but the same sort of things happened in a number of States and Commonwealths.

The current statutes in the Commonwealth of Pennsylvania, enacted by the General Assembly and properly signed into law by the Governor, have two provisions that got in the Democrats’ way.

First, to vote by absentee ballot, one must certify that he or she will not be present in his or her municipality on election day due to attendance at college in another locale, vacation or work in another locale, physical disability that prevents them from going to their polling place, service in the Armed Forces, or conflicts with celebration of a religious holiday.

Act 77 of 2019 was a bi-partisan statute and the first major overhaul of Pennsylvania election law in some 80 years.  It added the right to vote up to 50 days before the scheduled election, got rid of the need to give a reason for seeking to do so, and provided that mail-in and absentee ballots must be received by the appropriate official by 8:00 pm on election day.  The provision in law that forbade canvassing (opening and beginning to count absentee and mail-in ballots) could not begin until 7:00 am on election was not changed.

But then came 2020 and the pandemic.  Afraid that too many people would choose to vote by absentee ballot or mail-in ballot, the Governor, a Democrat and the minorities in the House and Senate of the General Assembly, sought to further amend the law to allow canvassing to begin 3 days before election day. That provision never made it to the Governor’s desk because he refused to compromise with respect to other provisions proposed by the majority.

Instead, the Secretary of the Commonwealth went to the Pennsylvania Supreme Court which approved her unilateral action establishing an emergency extension of the deadline for receipt of absentee and mail-in ballots to three days after election day. Why bother with the legislature just because the US Constitution says something we don't like.

The extension, which is effectively an amendment of the existing law, was made by judicial fiat.  The US Constitution clearly provides that it is the legislature of a State or Commonwealth that enacts such deadlines.  It does not say that “if the legislature declines to enact changes that the Governor, the Supreme Court of a State, a party committee, or the bar-tender down at Gilhooley’s prefer differently, then all bets are off.”

The US Supreme Court split 4-4 on whether that act of judicial fiat was appropriate. The Court has left open for another day the question of whether some agency other than a State legislature may simply ignore the Constitution.  In the 2018 North Carolina election, of a Representative to Congress, the Democrats were beside themselves when an individual collected ballots from absentee voters and delivered them to the appropriate official, expressing their fears that the ballots could have been tampered with.  They have had no such concerns in the 2020 presidential election.  The new election that they demanded and received in North Carolina is suddenly unnecessary in one they think they won.

And that’s OK.  Sooner than anyone may expect, the shoe may be on the other foot. Can anyone spell Harry Reid and filibuster?

In this case, I am certain that Mr Biden won and I think the US Supreme Court is, too.  So, in the immortal words of that great Constitutional scholar, Scarlett O’Hara, they will “think about that tomorrow.”

The problem I have is that even if the unconstitutional procedures employed in, e.g., Pennsylvania and other States, did not change the outcome, a “little unconstitutional,” like “a little pregnant,” is ultimately unconstitutional and pregnant.  And the next time, it may be twins!

In the meantime, Donald Trump may “know” he was re-elected, the Pennsylvania General Assembly may “know” he was re-elected, and even Joe Biden may “know” President Trump was re-elected, but the world saw the media declare Mr. Biden to be the next President, so he’s President.

Play Ball!

 

A REPLY TO THE BLUE STATERS WHO ARE SECEDING

 

 

The following “letter” is making the rounds on Face Book.  Such a great letter deserves a reply.

DEAR RED STATES; WE'RE LEAVING.

We've decided we're leaving. We intend to form our own country, and we're taking the other Blue States with us.

In case you aren't aware, that includes Hawaii, Oregon, California, New Mexico, Washington, Minnesota, Wisconsin, Michigan, Illinois and all the Northeast.

We believe this split will be beneficial to the nation, and especially to the people of the new country that includes Puerto Rico, U.S. Virgin Islands, Guam and Washington D.C.

We also get the vast majority of the major shipping ports. So good luck with getting goods in or out of the country affordably.

We also get Costco, Starbucks and Boeing. You get Texas, Oklahoma and all the slave states.

We get stem cell research and the best beaches.

We get the Statue of Liberty. You get Branson, Missouri.

We get Intel, Apple and Microsoft. You get WorldCom.

We get 85 percent of America's venture capital and entrepreneurs. You get Mississippi.

We get two-thirds of the tax revenue; you get to make the red states pay their fair share.

Since our aggregate divorce rate is 22 percent lower than the Christian Coalition's, we get a bunch of happier, intact families.

Please be aware that California will be pro-choice and anti-war, and we're going to want all our citizens back from Iraq at once. If you need people to fight, ask your evangelicals. They have kids they're apparently willing to send to their deaths for no purpose, and they don't care if you don't show pictures of their children's caskets coming home.

With the Blue States unified, we will have firm control of 80 percent of the country's fresh water, more than 90 percent of the pineapple and lettuce, 92 percent of the nation's fresh fruit, 95 percent of America's quality wines (you can serve French wines at your state dinners) 90 percent of all cheese, 90 percent of the high tech industry, most of the U.S. low-sulfur coal, all living redwoods, sequoias and condors, all the Ivy and Seven Sister schools -- Brown, Columbia, Cornell, Dartmouth, Harvard, the Penn, Princeton, and Yale; and Mount Holyoke, Vassar, Smith, Wellesley, Bryn Mawr, Barnard, and Radcliffe colleges; plus UCLA, UCB, Stanford, Cal Tech and MIT.

With the Red States, on the other hand, you will have to cope with 88 percent of all obese Americans (and their projected health care costs), 92 percent of all U.S. mosquitoes, nearly 100 percent of the tornadoes, 90 percent of the hurricanes, 99 percent of all Southern Baptists, virtually 100 percent of all televangelists, Rush Limbaugh, Alex Jones and Rand Paul.

We get Hollywood and Yosemite, thank you.

Additionally, 62 percent of you believe life is sacred unless we're discussing the death penalty or gun laws, 44 percent say that evolution is only a theory, 53 percent that Saddam was involved in 9/11 and 61 percent of you crazy bastards believe you are people with higher morals then we lefties. (See that part about divorces. ...)

Oh, and you can have all the new COVID-19 cases since you're too dumb and self-centered to wear masks.

Peace out.

We are the people of the Blue States

 

Dear Blue States,

It was so nice to hear from you.  What an interesting proposition.  It turns out, all the comparisons to 1860 are true; the Democrats really do favor dissolution of the Union if they cannot have their own way.  (And, apparently, the late unpleasantness of 1861-65 wasn’t "just" about slavery.  See, e.g., Professor Jonathan Turley’s article at https://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/.)  But I digress.

So, you've decided you’re leaving and taking your Blue Buds with you to “form our own country.”   That’s nice, dears, but we will just have to see about that. 

You may get LA, San Francisco, and Sacramento and the burned out remains of Portland and Seattle, but a whole lot of Californians, Oregonians, and Washingtonians would be very glad, indeed, to see you go.  When you leave the United States and form whatever little Baltic States you imagine, applying the West Virginia principle, we will be glad to wave goodbye to those who are seceding from us and to welcome, as President Lincoln said of West Virginia, those who are seceding to us.

About Puerto Rico, U.S. Virgin Islands, Guam and Washington D.C. Not that it matters in your opium dream, but territories cannot secede. They will still belong to the United States (a nation of which you will no longer be a part.)  You’re leaving, remember?  You can take whatever part of your former States that really want to go—we won’t stop you—but you get only those parts that affirmatively want to do so. You don’t get to pick and choose. Can you spell referenda? 

Shipping ports?  Really?  Boston stopped being a major port shortly after the tea leaves settled.  We will still have Baltimore, Norfolk, Charleston, Savannah, Mobile, New Orleans, Galveston, San Diego, and St Louis. And don’t be so sure that New York City/Newark, Los Angeles, and San Francisco, will still be “major ports.”  Where will the goods shipped there be going?  They are merely ports of entry.  If the tariffs we will place on goods shipped into those city-states when they try to leave for the United States, shippers may realize shipping through those ports is too costly.  Explain empty docks and piers to lots of unemployed stevedores , warehouse workers, and associated employees.  But you will finally have your dream:  you can all pay your “fair share” to support all those folks your departure put out of work.

Starbucks and Costco, you can have.  Boeing?  Wanna bet?  With you gone, Boeing can quicken its move to South Carolina, reopen its works in Wichita, and build new plants in places where the ratio of sunny days to rain is something significantly more than 1:1.  Hey, Seattle, explain that to all your out-of-work aircraft workers.   Tesla and the space industry are coming with us, too, thanks to your one-party California government who told Mr. Musk to get out.  Intel, Apple, and the rest of Silicon Valley may decide that they want to stay in the United States in with the rest of the Central Valley rather than the garbage infested streets of San Francisco.  

Stem cell research is an interesting point.  What makes you think all research hospitals and universities are limited to your States, especially your little city-states.  Sure, funding may—may-- depend on State research grants, but with the tax base you will have in your enclaves, don’t expect that there will be much spare cash to do much of anything.  The best beaches?  You’ve got to be kidding.

“We get the Statue of Liberty. You get Branson, Missouri.”  OK.  Fair trade.  One is a statue from France and the other, along with Nashville, Memphis, and New Orleans, is a home to a truly unique brand of culture.

Venture capital and entrepreneurs?  Those folks do make (or lose) tons of money, but in this computer-centric age, they can do it anywhere, and in a country that will have the US dollar, all of the gold in Fort Knox, and commercial rents that will please their accountants. You get whatever you wish to call your new currency, but it won’t be backed by much.  Here’s an idea that should appeal to you: call it the ruble.

No, we get two-thirds of the tax revenue.  You get whatever you can squeeze from burned out, unemployed stones of your city states.  And believe me when I say that anyone who has any income or assets will flee your “fair share” pipe dream.  Explain that to all the folks who have lived on government largesse for nearly a century.

You get a bunch of happier, intact families, eh?  Want to bet? 

So, “California will be pro-choice and anti-war,” you say.   Perhaps any part of the former State of California will be, but you may want to re-think that choice thing.  You’re going to need to breed a lot of children to work to support your welfare State.

 Our citizen-soldiers are welcome to return to you as soon as their enlistments are completed.  Some may actually take you up on it, but when they realize that their VA benefits that they got for actually enlisting are going to look awfully good to your tax collectors, they may just stay here with their country-men and country-women who actually appreciate their patriotism and sacrifice.

Now, about fresh water.   LA is going to get awfully dry and thirsty when the Colorado River diversion goes away.  Pineapples?  Assuming that all of Hawaii goes with you, perhaps, but I doubt that you will see them.  They will be too expensive for you once the new nation of Hawaii turns its face west to Japanese and Chinese markets.  With all that water from the Colorado River, I doubt that we will be short of lettuce.  The high-tech industry is very portable:  your model leader, Comrade Stalin, proved that whole industries can be transported over mountain ranges in very short order.  And we will have the population, the roads, and the money to do just that.  And, of course, the Central and Silicon Valleys may just decide that being Americans is a lot better than being whatever you decide to call LA, San Francisco, and Sacramento.  I mean all of those are Christian (Roman Catholic) names and we know that you detest the “dogmatic Catholic faith.”

Coal? We’ll survive.  All living redwoods, sequoias and condors? Sadly, there are not as many of those left after your Californian governor let the forests burn. 

So you figure you are going to get all the Ivy and Seven Sister schools -- Brown, Columbia, Cornell, Dartmouth, Harvard, Penn, Princeton, and Yale; and Mount Holyoke, Vassar, Smith, Wellesley, Bryn Mawr, Barnard, and Radcliffe colleges.  By my count that is 15 schools.  We will still have Penn State, Illinois, The Ohio State University, Purdue, and I’ll bet the faculties of those 15, plus UCLA, UCB, Stanford, Cal Tech, MIT, and others will suddenly decide that living in a destitute city-state that cannot support those schools is a bad deal. 

Sorry to hear that you don’t like “fat people” but you won’t have to worry about that anymore.  You’re going to be on short rations pretty quickly.

Tornadoes are truly mean and vicious bastards, but we have managed to survive them since we got here. Same for hurricanes.  But we get very few earthquakes, so it’s a fair trade all around.  Southern Baptists, Catholics, Jews, and others, we’ll be glad to have.  Sorry that your new constitutions are not going to include the First Amendment guarantees that our Constitution includes.  Hollywood you can keep.  Yosemite is ours.

As to the rest of your rant, well you have always been really good at ranting.  We won’t miss that.  Covid?  Really?  And NYC and California have done so well, so we will treat it and find a cure for it, and we’ll even share it with you after all of our own citizens are cared for.

Finally, remember the last reconstruction.  You aren’t going to believe some of the amendments to our Constitution you are going to be forced to ratify in order to come back.  Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Tennessee, Mississippi, Arkansas, Louisiana, and Texas will remember.  Or maybe not….  We can have that conversation when you come groveling.

In the meantime, don’t let the door hit you on the way out. 

I am a citizen of the United States of America.

THE CORONA VIRUS AND THE GOD-DAMNED INFANTRY

Downingtown, PA  18 March 2020

It is only the first day of the Great Pennsylvania Shut Down and I’m already reduced to (gasp) doing a little house straightening up. Really. Honest.

I found a book I had forgotten I owned: Deadline Artists. It is a collection of some of the greatest American newspaper columns, although it missed the late, great Bill Lyons of the Philadelphia Inquirer in its Sports section. (I still can’t find his column in which the lede was something along the line of: “The pattern was full at Philadelphia International Airport as the Berkshires and Hampshires lined up to take off…..” One of our teams had done something unexpectedly great. Maybe it was the 2007 Fightins’. If anyone has it, please let me know. But I digress.

In a time when people are all running around in a panic, this gem from the great Ernie Pyle hit home:

THE GOD-DAMNED INFANTRY

Now to the infantry—the God-damned infantry as they like to call themselves.
I love the infantry because they are the underdogs. They are the mud-rain-frost-and-wind boys. They have no comforts, and they even learn to live without the necessities. And in the end they are the guys that wars can’t be won without.

I had the honor and privilege of leading Marines in combat. The mental images painted by those 5 simple sentences ought to be a rallying cry for us all. My Marines lived on WWII-era C-rations, the same 12 meals over and over, for weeks—sometimes months—at a time.

The shirt on your back, if you even wore one under your flak jacket, the trousers held together with the black safety pins that came one to a bandolier of ammunition, the M-1942 light marching pack that could only hold a poncho and poncho liner and that luxury of luxuries, an extra pair of dry or less wet socks, that was all you had or needed to survive. That and a sense of humor.

It was hard humor. Dark humor. Biting humor. From men who would then cut a last cigarette in half, or share that last nearly empty canteen, or wait to be the last one to eat to make sure everyone got something. We lieutenants were taught that in OCS and TBS: Officers eat last! 

Our 18 year old platoon sergeants, rifle, machine gun, and mortar squad leaders, and fire team leaders were just naturally gallant that way.  God's most magnificent creation is the Marine.

Yeah, our humor and our take on life was dark and gallows serious. We laughed at the serious and at the absurd because, well, who wants to see a grown man cry (although we did some of that, too, when the loss of a shipmate was just too damn'd much to bear). And that habit of our youth has stayed with us and  may lead friends, family, and strangers alike to think we aren't taking the Kung Flu seriously.  

We do, but habits picked up in the crucible of war, in places like The Arizona Territory at the Hot dog and An Bang (1), on Go Noi Island, and in a hundred little villes here and there, has tied us together with bonds that cannot be explained.

Merely cherished.

So, when people are hoarding toilet paper, moaning about having to stay in warm, dry houses, or having to drive through some place to get their morning munchies, just don’t expect the God-damned infantry to care very much. Instead, learn from us.

If life seems to suck (it really doesn’t, you know), embrace the suck.

Show someone how much you really care by saying to a friend or neighbor, “Hey, Ass-hat. I’m going to the grocery store. What stupid stuff can I get for your lazy carcass so you don’t have to go out too?”   Say it and then do it, hiding some little treat in the bag before you drop it on their front porch and step back ten feet.

We are going through a tough time in America. Some of us have known tougher.  Let’s get through this together. We can do it. We already have the God-damned infantry to show us how. 

Semper Fidelis.

THE TRAGIC ODYSSEY OF JUDGE KAVANAUGH AND DR FORD

I watched all of the Senate Judiciary Committee hearing with Dr Ford and almost all of Judge Kavanaugh’s testimony on 27 July 2018.  (Choir practice took me away after 6 pm EDT.)

As I watched through to the end, it struck me that I was watching two good people being sacrificed on the Democrats’ altar of petty anger and political ambition.   The Democrat Senators were oh-so solicitous of Dr Ford.  And they should have been, for they waited for over three months to say they really care for a brave woman.  And in their blind desire to damage the President, they chose to smear an honorable man and another innocent family.

By now, I have probably enraged most people on either side of the worst political chasm in our history, at least since 1860.  For those of you willing to engage your minds, and I know that you are out there, here is my take on this fiasco.

I believe both of them.

I believe Dr Ford.  Her anguish was palpable and heart-breaking; her demeanor rang true; her testimony about the attempted rape followed the same course (with some exceptions) of what I have heard from the victims in rape cases which I tried or supervised.  There is absolutely no doubt in my mind that somewhere in suburban Maryland on a night in the Summer of 1982, 15 year old Christine Margaret Blasey, to some extent under the influence of alcohol—beer--was the innocent victim of a vicious, unprovoked assault that would have constituted aggravated sexual assault in almost any jurisdiction, and possibly attempted rape.  I believe her when she says she feared for her life.  I believe that she was acutely traumatized. 

I do not believe, however, that young Brett Kavanaugh was her attacker.

“Why,” you may say, “are you not willing to take that final step.”  (The Democrats, at least some of them, would go on to say, “Someone has to pay for Christine Blasey Ford’s life-long pain, fear, and trauma.”)  (I will address myself to each of the minority members at the end of this post.)

Here it is.  

I also watched Judge Kavanaugh yesterday.  His anguish, too,  was real.  It was genuine.  It was the outrage of an innocent man being tortured because an innocent woman honestly, but incorrectly, accusing him over the dry, dusty, barren plains of thirty-six years, was being callously used to further the crass, uncaring, duplicitous, and morally repugnant  political aims of a Party that wants only victory over a President  they hate for depriving their anointed queen of the Presidency, the innocent be damned.

I watched his wife behind him, her pain for her beloved, for her family clear on her face.  I have seen the faces of “dutiful wives” of politicians who have been caught out: most recently, Huma Abidin, whose husband was, indeed, a sexual predator.  She stood beside him, but the only pain I saw in her eyes was when she looked directly into the camera.  Her pain, for herself and her child.  When she infrequently looked at her husband, the doubt, the uncertainty, the contempt, they were all there.

That was not the case with Mrs Kavanaugh.  Her concern for her husband was genuine.  She believes him.

In my career, I have defended only two or three men whom I believed to be innocent—believed it to the core of my being.  Those for whom the government could not sustain its burden of proof I defended zealously, as required by the Cannons.  The American system of law is geared to protect citizens from the power and majesty of government rained down upon an accused by requiring that it--as accuser-- prove a person guilty beyond reasonable doubt. 

Due process, the presumption of innocence, rules of evidence and procedure, statutes of limitations; privileges that protect the system and the accused: privileges to be free from compelled testimony against oneself, the attorney-client, priest-penitent, and spousal privileges, these are, as my criminal law professor, Sheldon Singer, once cried out to a classmate, “Technicalities? TECHNICALITIES?  Shame! Shame!  No sir, they are the bare bones, the guts, the heart of the Constitution!”  

So it is that some people walk out of the courtroom free on “technicalities,” because the other option, sending the innocent into the dark abyss of the punitive arm of the state is, or ought to be, unbearable to any person with a conscience.

But the innocent ones, the ones who were faced with being falsely deprived of their liberty, of their good names, of their ability to serve the Nation they love—for them, I was truly frightened that I might not be good enough, that I might fail my client and our National love of justice.

There used to be a maxim, still recited even when I was a fresh caught attorney: “Better that a guilty man escape than an hundred innocent ones be convicted.”  I hope that is still true. “The United States wins its point whenever justice is done its citizens in the courts.” This quotation from Frederick Lehmann, Solicitor General of the United States (1910-1912), is inscribed on the wall of the Attorney General’s rotunda in the Department of Justice building in Washington, DC.  May it ever be thus.

I once heard someone on NPR discussing memory, in the context of truth and lies.  The commentator, a psychologist as I recall, said that we humans have, to some degree or another, an instinct to tell stories.  He (or she) commented on the oral histories, passed down from generation to generation, in preliterate societies. In order to do so, to keep the story alive, the commentator said, our brain is wired to make the story memorable.

My wife and I lost quadruplets at 20 weeks into her first pregnancy.  I was with her, standing at her left shoulder in the delivery room, holding her hand when she would let me, as the doctors worked feverishly, but unsuccessfully, to stop her labor and save at least some of our sons.  

She was understandably hysterical, incoherent.  It was the greatest tragedy of her life and mine.  In some ways, neither of us has fully recovered from our loss.

I always knew that deep in her mind, heart, and soul, she blamed me for the loss.  But I was stunned when one day we were talking about the boys, she turned on me, shouting, “You don’t care.  You weren’t even there.  You were left me to talk to one of your law partners on the phone.” 

It was the vitriolic delivery that shocked and frightened me.  Why would she lie about something like that.  I was angry, hurt, and confused……..until I heard the NPR report.

You see, earlier in the day, I had called one of my partners to tell him that I could not meet with him as he had asked me to.  It was a Saturday, and I wanted to make sure he knew I would not be there. 

But when she went into labor a couple of hours later, I was with her for every agonizing minute.

Understanding the depth of her personal tragedy and loss, I understood that my absence at the time of her loss and confusion made it a better story, a more complete and interesting story of loss.  

But she was not lying.  Her despair, her sense that God had abandoned her, that she was alone at the worst moment in her life, needed for her to be abandoned, alone.  It made her story all the more tragic and complete.  The human mind can be our best friend and worst enemy.

And in my own right, I have learned about the effect of trauma and stress on memory.

On the night of 10-11 June 1969, as I neared my sixth month in the field as a rifle platoon commander, my company was attacked by an estimated 600 NVA soldiers.  We who were there still refer to it simply as “that night.”  In the previous two to four weeks, I had had three of my Marines killed in action, as was my friend, Lieutenant Chip Hartman, who had joined the company with me on Christmas eve, 1968.  

We had at least ten NVA soldiers inside our lines in an old trench.  Another of my Marines, PFC Jimmy Wandro, USMC, was killed in action that night as he single-handedly attempted to clear the trench.  It was, as a Civil War veteran said of the Battle of Sharpsburg (Antietam), “simply awful.”

At dawn, as we moved to assault the trench, my radio operator was shot and seriously wounded.  When I found him, my Corpsman was already treating him.  I looked at him and could not recognize him.  “Who is it, Doc?” 

The young Marine looked at me and whispered, “It’s me, Lieutenant.  Don’t you know me?” I never saw him again--he was medically evacuated within minutes.

That terrible conversation haunted me for 40 years.  You see, PFC John Gibson had been my radio operator for four months.  A radio operator shared a fighting hole with and was rarely more than 10 feet from his unit leader.  What kind of Marine, what kind of officer, what kind of man was I that I could be so weak, so shallow, so frightened as to not recognize Johnny Gibson in his time of need?

For 40 years, if you had asked me, in the words Senator Schumer asked Dr Ford yesterday, “How sure are you that it was PFC Gibson?”, I would have answered confidently and surely, “One hundred percent.”

It was only after 10 weeks as an in-patient in the premier combat-related PTSD program in America that I was able to recall what really happened.  My radio operator was, indeed, wounded. But PFC Gibson had been sent to the rear the day before because of an emergency at home.  One of the squad radio operators had fleeted up to be with me.  It. Was. Not. Gibson! But I expected to see Gibson.  I was looking for Gibson.  I locked Gibson"s face into my memory.  My 100 % certainty let me down.

And that is why I think both Dr Ford and Judge Cavanaugh are telling the truth.  For whatever reason, when she was attacked, she did not recognize her attacker and for whatever reason—or for no reason whatsoever—she put Brett Kavanaugh’s face into her memory.  She is not lying.  She is not part of some nefarious plot.  She is a traumatized victim of a reprehensible crime and is trying to make some sense out of her “100 %” certainty. And she is wrong about who attacked her.

Likewise, Judge Kavanaugh is trying to fathom how a woman he does not remember (I sure as hell do not remember any sophomore girls from my senior year, and I, too, was a studious, book-wormish kid who did not know many girls in any way other than as friends, classmates, participants in school plays).  

He is righteously outraged by these allegations, as he has every right to be. He didn't do it, no matter how much some people with political agendae want it to be him!

The guilty parties in this farce are the Democrat Senators who have failed in their sworn duty to “support and defend the Constitution of the United States.”  Including the parts they dislike right now, the parts guaranteeing due process, a presumption of innocence, and the part that says no one accused of a crime—and what happened to Dr Ford was a heinous crime—can be compelled to incriminate himself, especially since there is no crime for him to admit.

Let’s look at the cast of characters who are guilty.

Senator Feinstein and Congresswoman  Eshoo. 

They started this whole debacle.  Congresswoman Eshoo apparently promised Dr Ford anonymity if she brought her claims forward to Senator Feinstein, something she could neither legally nor practically do. 

I’ll give her the benefit of the doubt to a certain degree:  she is not an attorney and, in fact, has only an AA degree.  But she has been a Party stalwart for 40 years, a member of Congress since 1992.  She should know better or know enough to ask one of her staff to check with one of the countless lawyers with which the Capitol teems on both sides of the aisle.

And she is a disciple of Congresswoman Pelosi who in 2014 urged that the Democrat Caucus elevate Congresswoman Eshoo to be Ranking Member on the House Energy and Commerce Committee.  Why?  Because, Mrs Pelosi said, her election “…would be important for the party, allowing her to tap into lucrative fundraising interests in Silicon Valley and elsewhere that the committee has jurisdiction over (sic)… .”  LA Times, 19 Nov 2014. 

Even today, she is an at-large Whip for the Democrat caucus in the House and being the "originating source" for information that could be useful to the Party and would delight Mrs Pelosi, it would be in her own personal interest to bring in this trophy.

Senator Feinstein—also not an attorney—continued the charade that Dr Ford could maintain her anonymity, which she must have known is impossible in the Capitol.  When, as Ranking Member on the Senate Judiciary Committee, she came into possession of Dr Ford’s letter, one could argue that she had a fiduciary duty to all of the members of the Committee to alert them in order to allow timely investigation of the claims against Judge Kavanaugh.  She did not.

As we now know, she instead hid the letter from the Committee and the Senate, allowing the Committee to conduct its hearings on the nomination.  It was only on 16 September that, after the hearings were complete, and partisan parliamentary efforts were unable delay action on the nomination, the letter and Dr Ford’s name, which according to Dr Ford had been given only to Congresswoman Eshoo and Senator Feinstein, were mysteriously leaked to the Washington Post.  In her testimony before the Committee yesterday, Dr Ford reiterated that she had given her letter only to Ms Eshoo and Ms Feinstein.

While the Democrats now want an FBI investigation, Senator Feinstein actively and consciously deprived them, and the American people, an opportunity for a timely practical investigation.  

But there is more.  In an interview with Fox News on 18 September aand in a report on MSNBC the next day, Senator Feinstein admitted that Dr Ford “is a woman that has been, I think, profoundly impacted, on this. I can’t say that everything is truthful. I don’t know.”   By withholding the letter, she, in fact, made it certain that Dr Ford’s anonymity could be prolonged but also protected her story from inquiry.  

The Senator's demands for an FBI investigation at this late date just doesn’t wash!  Senator Feinstein still asserts that the only reason that she did not release the letter to the FBI when she first received it was because she had promised Dr Ford anonymity, something she had no authority to do.  Applying Occam’s Razor, it is just as logical to think that Senator Feinstein did not want an FBI investigation out of concern that her prize weapon might be discredited.  Be that as it may, she allowed the debacle to begin and to continue to its tragic conclusion.

The 2020 Presidential Candidates and others.

To date, Senators Booker, Harris, and Hirono, all junior members of the Senate and members of the Judiciary Committee, have either expressed interest in or have been identified by members of the Democrat Party as potential Democrat candidates for the Presidency in 2020.  It is primarily they who have turned the hearings into a circus, with more stunts than Ringling Brothers, Barnum & Bailey ever had.  Leaking documents in violation of Committee and Senate Rules, staging walkouts (and moving immediately to waiting TV reporters and cameras), and assorted other hi-jinks have been their stock-in-trade.  Their campaign video clips are preserved.

Senators Leahy and Durbin—senior members of their Party on the Committee and in the Senate—have aided, abetted, and often joined their junior members in the burlesque show, along with Senators Whitehouse and Blumenthal.

Blumenthal is a particularly odious and odiferous character.  For years in Connecticut politics, he held himself out and ran as a “Marine Vietnam veteran.”  In fact, he was a Marine Reservist who never came near combat, unless he walked the streets of Hartford at night.  When caught out, his only excuse was that he meant to say that he was a “Vietnam-era veteran,” which is light-years away from the Ashau Valley, Khe Sanh, Hue City, Dodge City, the Arizona Territory, and Antenna Valley. He, a liar and thief who stole the valor of others, can be dismissed for what he is, a stinking mess of human flotsam.  But I digress.

The Honorable Professionals

The only two Democrats on the Committee who generally comported themselves with honor are Senators Klobuchar and Coons. We, as citizens all, should thank them for doing their duty as they see fit, but doing it honorably and professionally.

That’s my take.  Let the responses begin