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Kavanaugh and the Ginsburg Standard

September 3, 2018 in Economics

By David B. Rivkin Jr., Andrew M. Grossman

David B. Rivkin Jr. and Andrew M. Grossman

Don’t blame Brett Kavanaugh when he demurs at his
confirmation hearing from answering questions on legal issues that
might come before the Supreme Court. It’s the senators who
will be in the wrong, for demanding commitments that no judicious
nominee could provide. To answer “direct questions on stare
decisis on many other matters, including Roe and health
care”—as Minority Leader Chuck Schumer has called
for—would itself be disqualifying.

That principle has come to be called the Ginsburg Standard,
after Justice Ruth Bader Ginsburg. As she explained in the opening
statement of her 1993 confirmation hearing: “A judge sworn to
decide impartially can offer no forecasts, no hints, for that would
show not only disregard for the specifics of the particular
case—it would display disdain for the entire judicial
process.” Or, as she later responded to a question about
constitutional protections against discrimination based on sexual
orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with
Justice Ginsburg, who honored it inconsistently at her hearing, or
to view it as driven only by policy considerations. In fact, the
standard has deep roots in the law and history.

A nominee’s advance
commitment to decide a question a certain way is incompatible with
the appearance of fairness and impartiality that gives the law its

Begin with the Constitution. The Appointments Clause provides
that judges, including Supreme Court justices, are appointed by the
president “with the Advice and Consent of the Senate.”
From the nomination of John Jay as the first chief justice in 1789
through the mid-1950s, public confirmation hearings were rare. Few
nominees attended them when they did occur, and only a handful
testified. Senators had no occasion to grandstand by demanding that
a nominee declare his stance on legal controversies.

Since hearings became the norm, the number of questions asked of
nominees has exploded, with recent nominees facing more than 700
apiece. Yet two aspects of the process haven’t changed. The
first is the refusal of nominees to opine on actual or hypothetical
cases that may come before the high court. The second is
senators’ griping in response. At a 1968 hearing, Sen. Sam
Ervin (D., N.C.) bemoaned that the nominee, Judge Homer Thornberry,
had “virtually created a new right not found in the
Constitution, which might well be designated as the judicial
appointee’s right to refrain from

Ervin was wrong. Judges are appointed to exercise the
“judicial power.” As per the Constitution, this
involves deciding specific “cases” or
“controversies”—that is, concrete disputes
involving real facts, as opposed to abstract questions of law.
Judging, in turn, entails the …read more

Source: OP-EDS

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Meet the Buddhist Monk Who Became an Apostle for Sexual Freedom

September 3, 2018 in Blogs

By Donald S. Lopez Jr. , Aeon

Over the long history of Buddhism, most of its vast literature has been composed by celibate monks.

Not spitefully binding or beating someone,

Not cruelly stabbing someone with a spear;

Passion is offered to a passionate human.

It may not be a virtue, but how could it be a sin?

From A Treatise on Passion (1967) by Gendun Chopel 

Buddhist monks follow a lot of rules – 253 in one tradition, 200 in another. As the story goes, all of these rules were made by the Buddha himself. However, he did not announce them all at once, like Moses descending from Mount Sinai with the Ten Commandments. Instead, they’re said to have evolved organically, with the Buddha making a rule only after he judged a particular deed to be a misdeed. The first of the rules to be established was not against murder; it was against sex.

The inciting incident was when a man named Sudinna left his wife and parents to become a monk. Some time later, he came home and made love to his wife – not for love or lust, but at the urging of his mother. She worried that if she and her husband died without an heir, the king would seize their property. Although there was no rule against monks having sex at the time, Sudinna felt guilty and told some other monks what had happened. Those monks tattled to the Buddha, who summoned Sudinna for perhaps the worst scolding in Buddhist literature: 

Worthless man, it would be better that your penis be stuck into the mouth of a poisonous snake than into a woman’s vagina. It would be better that your penis be stuck into the mouth of a black viper than into a woman’s vagina. It would be better that your penis be stuck into a pit of burning embers, blazing and glowing, than into a woman’s vagina. Why is that? For that reason you would undergo death or death-like suffering, but you would not on that account, at the breakup of the body, after death, fall into deprivation, the bad destination, the abyss, hell.

Over the long history …read more


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Watch Your Wallets — The Next Crash Is Coming

September 3, 2018 in Blogs

By Robert Reich, AlterNet

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Trump and his Republican enablers are now reversing regulations put in place to stop Wall Street’s excessively risky lending.

September 15 will mark the tenth anniversary of the collapse of Lehman Brothers and near meltdown of Wall Street, followed by the Great Recession.

Since hitting bottom in 2009, the economy has grown steadily, the stock market has soared, and corporate profits have ballooned.

But most Americans are still living in the shadow of the Great Recession. More have jobs, to be sure. But they haven’t seen any rise in their wages, adjusted for inflation.

Many are worse off due to the escalating costs of housing, healthcare, and education. And the value of whatever assets they own is less than in 2007.

Last year, about 40 percent of American families struggled to meet at least one basic need – food, health care, housing or utilities, according to an Urban Institute survey. 

All of which suggests we’re careening toward the same sort of crash we had in 2008, and possibly as bad as 1929.

Clear away the financial rubble from those two former crashes and you’d see they both followed upon widening imbalances between the capacity of most people to buy, and what they as workers could produce. Each of these imbalances finally tipped the economy over.

The same imbalance has been growing again. The richest 1 percent of Americans now takes home about 20 percentof total income, and owns over 40 percent of the nation’s wealth.

These are close to the peaks of 1928 and 2007. 

The U.S. economy crashes when it becomes too top heavy because the economy depends on consumer spending to keep it going, yet the rich don’t spend nearly as much of their income as the middle class and the poor.

For a time, the middle class and …read more


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The Summer of Trump: Here Are All the Terrifying Stories We Wish we Could Forget

September 3, 2018 in Blogs

By Andrew O’Hehir, Salon

It’s safe to say the news has not been quiet this summer.

This was the summer that began with Rudy Giuliani getting booed at Yankee Stadium — for any longtime New Yorker, a nearly unbelievable event — and ended with a white Republican congressman sorta, kinda calling a black Democratic mayor a “monkey” on live TV. If you have entirely forgotten both events, or never noticed them in the first place, you are not alone.

I’ve been working in and around the news business for exactly 30 years, and the truism used to be that nothing much happened during the summer, except in presidential election years. Even then, the mud-slinging, attack ads and earnest campaign lies didn’t commence in earnest until after Labor Day. Oh, there were stories of sorts: Heat waves, natural disasters, blockbuster movies, peculiar pop songs that dominated the airwaves for weeks at a time. Some surfer somewhere in the world would get nibbled by a great white shark — or possibly just see one — and the news magazines would announce an existential attack on the human species.

Donald Trump has an obsession with sharks, according to one of his (alleged) extramarital sexual partners. I could spend several hundred words trying to decode that (which is admittedly my usual mode) but let’s not. It’s the laziest holiday weekend of all, at the end of a hot, wet and exhausting American summer. I think it’s safe to say the news has not been quiet. We need a break.

Our third summer under Donald Trump, the God-Emperor of All Media, was even crazier than the first two. If that’s possible. You probably remember some of this summer’s major Trumpian news events — the summit in Singapore, the summit in Helsinki, the “family separation” policy, the Paul Manafort verdict and the Michael Cohen plea deal — but pause just a moment to reflect that all that, and much more, unfolded within the last 10 or 12 weeks. And there’s a lot more stuff, I promise, that under another president or in another universe would have seemed like a big deal …read more


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Why Is Trump Ramping Up His Unwieldy War on Weed?

September 3, 2018 in Blogs

By Matthew Rozsa, Salon

Trump’s new “marijuana task force” is a big step backward for America

Earlier this week, it was revealed that President Donald Trump has created a Marijuana Policy Coordination Committee, one in which various federal agencies that oversee marijuana policy work together to find ways to prevent Americans from having access to the drug. According to a summary of a meeting held between the White House and nine government departments in July, “the prevailing marijuana narrative in the U.S. is partial, one-sided, and inaccurate” and needs to be countered with “the most significant data demonstrating negative trends, with a statement describing the implications of such trends.”

Set aside the irony of government officials denouncing the pro-marijuana legalization arguments as “partial, one-sided, and inaccurate” while making it clear that they're only interested in data that will support their anti-legalization position, there is a deeper issue here: Trump is ramping up his unwieldy war on weed.

“It's a big step towards the prohibitionist status quo that we were in prior to the [President Barack] Obama years,” Justin Strekal, political director for NORML, told Salon. “It's not a step back [in the sense that] we're not behind where we were in the 1930s, but we're moving closer to where we were in the 1930s.”

Strekal went on the contrast Trump's policies on marijuana with those of his predecessor.

“It's important to note that, even during the Obama years, the rhetoric and policy guidance that was coming out of the administration's Department of Justice was not necessarily pro-marijuana,” Strekal explained. “They more took a neutral stance and allowed, after tension that happened in the early years of the Obama administration where they were conducting raids of medical dispensaries and shutting down access for patients to get safe and legal marijuana, they put forward the Cole memo, which best can be categorized as an uneasy detente between the federal and state policy guidelines.”

The Cole memorandum was a policy drafted by Deputy Attorney General James M. Cole under Obama that effectively told states which had legalized marijuana that they could do so without federal interference as long as they abided by certain rules, …read more