Kavanaugh Continues Trump’s Attack on Workers

(Note: I had one of my most-trafficked days yesterday thanks to a Yemen post. So let’s follow that up by talking about OSHA!)

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A popular fish-based* entertainment park, let’s call it “Ocean World”, or “Sea Land”, has a show employing killer whales. A killer whale attacks and kills a trainer. It’s found that the entertainment park, which has a whole host of other problems, was found to have had safety lapses that led to the death of the trainer.

You’re asked to rule on whether OSHA, which by statute protects “all employees”, can fine the company a whopping $70,000 for violations. The case comes to your court. Do you rule:

  1. Oh, jesus, of course
  2. I find that while the death was tragic, WaterHeaven was not in violation of the statutes regarding safety, which I nevertheless find to be very important and Good.
  3. OSHA sucks.

If you’re Brett Kavanaugh, you’ve picked #3. Steven Greenhouse at The American Prospect explains more.

For Kavanaugh, the issue wasn’t what should SeaWorld have done to prevent Brancheau’s death or how could federal regulation have best helped prevent her death. Instead, the overriding issue for Kavanaugh was whether OSHA should even be regulating a company like SeaWorld. Kavanaugh asserted that OSHA should not be regulating sports or entertainment activities, saying it would be foolish, for instance, for OSHA to seek to limit injuries in professional football or NASCAR racing.

Although Kavanaugh describes himself as a “textualist” who follows the text of statues, he sought to create out of whole cloth an exemption from safety regulation for “entertainment activities” even though the Occupational Safety and Health Act of 1970—passed by a bipartisan majority and signed by Richard Nixon, a Republican—states that the law applies to “each employer.” The act calls on every employer to “furnish to each of [its] employees” work that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Writing that OSHA would never regulate football or NASCAR racing, Kavanaugh argued that since OSHA can’t explain why it wouldn’t regulate those “sports and entertainment activities,” but had opted to regulate SeaWorld, it was arbitrary and capricious and therefore illegal for OSHA to regulate SeaWorld. Kavanaugh glosses over the fact that Brancheau’s work at SeaWorld was not a competitive sport, like football or hockey, where injuries are inevitable.

Now, you could say this is a one-off type of case, as whale-training falls into a strange category of work. There are very few lines of business where it is even possible to get eaten by an orca, much less have that be a hazard of the job. I don’t know how he’s ruled on OSHA overall, if cases have come up.

But there are some key phrases here which give us hints. “aribtrary and capricious” are guiding lights in movement conservativism which can be used for any regulation which gets in the way of profit or protects workers at all. For a man to look at this case and feel that the real issue here is government overreach sort of distracts from his self-painted image of being an impartial jurist.

We know this, of course: he’s a mediocre flack, a rich fratty sex pest who has carried water for the conservative movement from the jump. Putting a man like him on the court has been the goal of the movement for 40 years; they’ve meticulously groomed and promoted his type.

There are a few end goals here. One, of course, being the end of Roe and Griswold.  The goal is to end any environmental protections that stop capitalists from doing whatever they want. The goal is to destroy any labor movements that get in the way of overwhelming profits. The goal, at its essence, is to remove the protections that recognize works as more than just tools of the boss class, to be used and disused as they please. It’s to stop recognizing that workers are human beings.

Kavanaugh isn’t alone. Neil Gorsuch famously believed that a worker has no right to protect her or his own life if it meant hurting the company at all. When a truck driver stranded in sub-zero conditions unhitched his trailer, whose brakes had failed, and drove to safety, he was fired for abandoning his cargo. Six judges said he had every right to do that. Gorsuch?

Maddin “wasn’t fired for refusing to operate his vehicle,” Gorsuch wrote last year in his dissent. He was fired for operating — that is, driving — his vehicle in a way contrary to company policy. So the company had a right to fire him.

Maddin had a simple choice, Gorsuch concluded: Freeze to death or lose your job. Maybe the company was not wise or kind, he added, “but it’s not our job to answer questions like that.” We judges just apply the law to the case at hand.

Now, obviously, there is a bit of a dodge here. He is sighing from above, wishing the company had policies that were better. But, alas, in this fallen world, what can one do? One can only “apply the law”.

The translation here is that if a company has a policy, no matter how dangerous or deadly or cruel it is, that must be followed. Men of goodwill like Neil Gorsuch can wish to heaven above that it were different, but if a company makes a decision, and you agree to work for them, your life is forfeit. Literally, your life belongs to company policy, which can’t be changed by regulation or judicial decree.

Kavanaugh might not make it through. But the next Heritage-clone who does will believe the same things. They are making it so that workers have no rights at all. They are making it so that if you sign a contract, you aren’t selling your labor to the highest bidder, but that the company is buying you.

This will be one of the primary legacies of Trump. He likes to talk about the working class, but his whole life has been marked by seething contempt for them. From screwing over contractors to dismantling every regulation possible, he’s punished those he’s seen as weak while empowering the already-powerful. He thinks that states should race to the bottom to compete for dangerous, unprotected jobs in which they can despoil the air workers breathe and the water they drink. There hasn’t been a bigger foe to workers since Calvin Coolidge.

And we have a Supreme Court poised to make that a generational reality, enshrined by a President elected with a minority of votes, the aid of a foreign power, and a vast campaign of voter suppression. If you ask if America remains a democracy, you have your answer right there.


*Melville concluded whales were fishes. Who am I to argue?


With Mitch McConnell, You Can Never Be Cynical Enough

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We haven’t had much to say about the grinding inevitability of Neil Gorsuch, other than to argue that the doomed filibuster was the right thing to do. We should never forget that Mitch&co (especially the sanctimonious Orrin Hatch), nullified the 2012 election while speaking self-righteously about preserving voter rights to determine a Supreme Court justice. It was nauseating, and could be seen as a death-blow to democracy.

The Gorsuch hearings have been an exercise in craven cynicism, with Republicans outraged that Dems even dare question Neil Gorsuch, as if he floated down from Judicial Heaven, untouched be petty partisan politics, and not been someone involved in the far-right since he was born. And they were even more cynically outraged that the Democrats might dare try to question Presidential prerogative. It was as if they all knew that they had no case, but if they shouted loudly enough with enough constitutional offense warbling their vocal cords we would forget how laughable it was.

This wasn’t hard to predict. In fact, right after the election, the Times ran a ludicrous story titled “Hard Choice For Mitch McConnell: End the Filibuster or Preserve Tradition”.

We said then:

Let me answer that for you: he’s going to end the filibuster.

The Times describes him as someone who believes strongly in traditions, somehow managing to reconcile that with his immediately blocking the President’s right to choose a Supreme Court justice, and also the completely unprecedented obstruction of Barack Obama’s entire Presidency. It also talks about how he was dismayed at Reid dismantling the judicial filibuster after their (again) unprecedented obstructions, as if it was a matter of principle, and not, say, petulance at not being able to continue their (again) unprecedented obstruction of the President’s rights.

So yeah, I think there is going to be one filibuster of bill or maybe when Trump nominates Michele Bachmann for the Supreme Court, and Mitch will appear on TV, and say that it with sadness that he has to do this, but the Democrats have no respect for Presidential prerogative, and are ignoring “President Trump’s overwhelming victory, and the will of the American people” (never mind that Trump lost that metric). And then the filibuster will be gone, and the media will say “well, the Democrats should have reached across the aisle!”

And again: all this was easy to predict, which is what makes it even more depressing. Still, I was wrong about one thing. I thought Mitch would do fake sadness, and not fake anger. I wasn’t cynical enough. Here’s what he actually said.

“This is the latest escalation in the left’s never-ending judicial war, the most audacious yet,” Senator Mitch McConnell of Kentucky, the majority leader, said after describing Democratic opposition in the past to Judge Robert H. Bork and Justice Clarence Thomas. “And it cannot and it will not stand. There cannot be two sets of standards: one for the nominees of the Democratic president and another for the nominee of a Republican president.”

What are you supposed to do? How do you respond to that? It’s impossible. You’re left sputtering, and somehow you look like you’re on an equal level of childishness. It’s insane, and it is what is running the country.

Although I admit I may have misspoke when I said that he was faking anger. I think their cognitive dissonance is so fine-tuned that they actually believe that a foredoomed filibuster is somehow an escalation over not even meeting with the nominee, much less giving him a hearing. Like the kid on The Simpson’s who doesn’t know if he is being sarcastic anymore, they don’t know if they are legitmately angry or just a mobious strip o cynicism.

Reminder: Call Your Senator And Tell Them To Vote No On Justice Gorsuch


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Seriously, get on the horn


One way or the other, Neil Gorsuch will be the next Supreme Court justice. If the Democrats try to filibuster, Mitch McConnell will, with “deep sadness at this unprecedented assault on Presidential prerogative”, get rid of the filibuster. Or, knowing this, and knowing that Gorsuch is generally popular, will keep their powder dry, and maybe have some protest votes against him, but will largely let him pass through.

But they shouldn’t. The answer to Gorsuch should be the what Michael Corleone offered to Senator Geary: nothing. Gorsuch should not get one single Democratic vote.

This is partly a matter of politics (we have to fight everything about Trumpism to make sure that none of this is normalized and to get out the vote in midterms and local elections), but also, mostly, principle. It’s not just that this seat belongs to Merrick Garland. It’s that, in denying President Obama his right to nominate a Supreme Court justice, the Republican overturned the 2012 election.

There’s no other word for it: they nullified the election, trampled on the will of voters in the biggest display of contempt for the union since Wallace, or possibly the Civil War. In 2012, by a wide margin, voters elected Barack Obama to a four-year term. Everyone votes knowing that there is always the chance of a Supreme Court seat opening up. Mitch McConnell saw that he had a chance to overthrow the election and literally reduce Obama’s term to three years, and he took it. This wasn’t legally treason, but it was a moral assault on our democracy.

And they won, thanks to the slave-state empowerment of the Electoral College. And now they get to put on an extremely, overwhelmingly conservative justice, against the will of the majority of voters in two straight elections. And they will do so, and the nation will suffer.

Over at Slate, the incomparable Dahlia Lithwick talks about teeth-breaking GOP hypocrisy during the hearings, insulted as they are that anyone would even question Gorsuch. (“GOP Sen. Orrin Hatch lectured the Judiciary Committee about the fact that the Senate ‘owes the president deference over his judicial nominees.’ Hearing this, Democratic Sen. Patrick Leahy of Vermont about fell out of his chair.”)

We have to expect their cynicism. We have to be willing to stand up to their calculated outrage (which probably isn’t “phony”, per se; cognitive dissonance rules all). We have to let our Senators know that they aren’t in a hearing for Gorsuch, as we normally understand it. They are in a hearing for Merrick Garland’s seat, which was stolen through a subversion of democracy.

So call your Senator. Tell them you support them voting NO on Gorsuch, and not because of any reprehensible position of the other. That’s important, but in a way incidental, because a right-wing Scalia-y Justice is the outcome of the crime, not the crime itself. Give our Senators the strength and backing to protest this outrage against our very democracy.

A hard right court can destroy environmental pushback, end labor, and annihilate civil rights. Our country will be changed in ways it is hard to imagine. But it already has: the idea of a Presidential term was suddenly subject to a political gamble. That hits at the basis of our country. Tell your Senator to fight back against it. We might not win, but it’s how the fight can start.

The Tribune Has Lost Its Damn Mind, Cont.

In life, you meet thousands of people. With some you have a deep connection which spans the decades. Some people you are extremely close to for a short but intense while, and it burns out. Others you are friendly with, maybe even close to, but lost contact with, and realize sadly that there have been dusty years in between the last time you’ve talked, and they are out of your life.

Other people you know briefly 50 years ago, talk once on a bus, have a mildly unpleasant interaction with, and then write about decades later when they are nominated to the Supreme Court.

The Chicago Tribune has decided, in its wisdom, to run a piece from a guy who went to Jr. High with Merrick Garland. The connection, in full, consists of two anecdotes. In the first the author hopes to brag to a new seatmate about his grades, but it turns out young Merrick had straight As. In the other, a few years later, Garland may or may not have cut off our author in a race.

This searing anecdote is what the Trib has given us. Zero insight, an unsubstantiated story, that, even were it true, is meaningless (breaking: kids in competition can be hotheaded), and an odd grudge. Of the thousands of people with whom Merrick Garland has interacted in his life, it’s hard to imagine a less interesting or meaningful connection. I look forward to him not being asked about this non-event in his non-existent confirmation hearings.

The ugly upcoming nomination battle

So Antonin Scalia, the flabbergastingly partisan Supreme Court justice whose rulings for the last 15 years were less judicial and more a highbrow translation of AM radio, has passed away.  No one wished for his death; just his resignation. He was a man who was loved, I’m sure. Still, in light of things like the insane and potentially catastrophic (and, it has to be noted unprecedented) ruling to stay the Clean Power Bill, this is an opportunity to move forward.

But it’s going to get ugly. If you listen closely, you can hear a thousand thinkpieces being written that will argue how it is tyrannical for a lameduck to nominate a Supreme Court justice. Senators are already limbering up for the nomination fight, practicing teary piousness about how the President owes it to the legacy of this great American patriot to nominate a “true Constitutional conservative”.  The confluence of an election year, Scalia’s unique role as berobed channeler of the right-wing id, and the unerring antipathy to letting Obama have any normal Presidential prerogative will make this perhaps the ugliest fight in Supreme Court history.

The prerogative is the important thing. Republicans take it as gospel that anytime Obama behaves like a President he is acting like a king. This time will be no different. A quick look back makes it seem like this is the latest in his term a President has had a Supreme Court nomination since LBJ, but that’s due to justices generally not resigning in an election year. This is different. There is nothing that can be done.  Barack Obama is still the President. It is 100% within his rights to nominate a justice, and 100% in his rights to nominate a justice

Barack Obama is still the President. It is 100% within his rights to nominate a justice, and 100% in his rights to nominate a justice  with whom he is aligned, politically and judicially. This being an election year doesn’t change that.

So when you hear an argument that Obama owes it to Scalia’s memory to appoint a true Constitutional originalist like Scalia (which he only was when it suited him, and which is a bankrupt and idiotic ideology anyway), or that he should do the right thing and postpone having 9 Justices for at least a year, remind them of Article II, section 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Note it doesn’t say “3 years” or “but during an election year he shouldn’t do anything.” Obama was elected by a large majority for a four-year term, with all the Presidential perogatives that entails. No true Constitutionalist could argue otherwise.