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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Wishes for the Inauguration
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Saturday, November 19, 2016
Wishes for the Inauguration
Sandy Levinson
Assume that my heartfelt plea immediately below for a coalition of Democrats and honorable Republicans to use the electoral college to bring forth a potential third-candidate who would be chosen by the House as our 45th President goes nowhere (which, of course, is highly probable). So, frankly, what should we wish for on January 20. One possibility is a day in which we celebrate our tradition of peaceful transfers of power by assembling, physically or through television, to watch Donald Trump take the oath of office from a beaming John Roberts, and then enjoy the Inaugural Parade, which will, no doubt, be the very best in our history given its arrangement by the Trump family. The other is a day in which we see members of the armed forces lining every street of our nation's capital and the boycott of the Inaugural ceremony, such it is, by all honorable Democrats and Republicans in protest against the outrageous selections our sociopathic president will have made not only for the Cabinet, which, after all, is subject to Senate confirmation, but for his ever-more-monarchical court that requires no Senate confirmation (and whose members, indeed, are free from having to testify before Congress--so much for accountability), including, of course, the position of national security advisor. Ideally, of course, there would also be a sleety rain that could be interpreted, for those so inclined, as Heaven's verdict on a Trump presidency.
Comments:
In Trump's inaugural address, will we finally learn in his view when America was great, and for whom, to provide a base for his mindset and to measure the performance of his administration? I've been around beginning in 1930 when things, I later learned, were not so great. Was it the Roaring Twenties or The Gilded Age of the late 19th century? I am aware of some great and bad things during my 86 years here in America. But Trump has not, to my knowledge, openly informed America of the time that he thought America was great. Based upon Trump's campaign and the direction of the Trump transition, could that great time have been prior to the civil rights movement? It would be interesting to find out when Trump voters viewed their America as great, as they can use this as a measure of the performance of the Trump Administration regarding campaign promises they relied upon.
On a lighter note, I'm hoping that SNL delivers Stuart Smalley "Daily Affirmation" skits with Alec Baldwin's TrumpuPence. Sen. Al Franken may have a political conflict that pales in comparison to the anticipated conflicts of the Trump Administration. Or might such skits be considered narcissistic? Glad you're back, Sandy.
Shag, I think that you're missing the real meaning of "Make America Great Again." It is a euphemism for "Make America White Again." The election of Obama symbolically ended America's whiteness, so perhaps that's when Trump wants to go back to.
You don't need to "normalize" his election. About 60 million of your fellow Americans already did it. We took care of the legitimacy part, too.
Sandy, the legitimacy or normality of a President does not hinge on whether you approve of him, any more than it hinges on whether *I* approve of him. It's a purely procedural matter. You really need to work yourself back out of this "Only elections that come out the way I wanted are legitimate!" corner you've worked your way into. You are not frightened of Trump in a way you weren't frightened of Bush because Trump is a monster and Bush wasn't. You're frightened of Trump because portraying him as a monster was deemed useful, and you swallowed the propaganda, hook, line, and sinker. Just kick back and relax. You probably won't like the Trump administration any more than I liked the Obama administration, but his taking office isn't some kind of existential crisis. You just lost an election, that's all. Happens to about half the public every two years.
Henry, Trump's slogan was expressed as being current. Do we know what Trump, the utterer, meant with those words? Do we know Trump's intent? Do we know Trump's expectations? Do we know how listeners, both Trump's supporters and non-supporters, understood the slogan? If we go back a few decades in history to Reagan's 1980 campaign when Reagan used the phrase, there was the Iran hostage crises that Pres. Carter faced only 5-6 years after Nixon was forced to resign. We know that Reagan employed Nixon's Southern Strategy in his 1980 campaign. Can we discern with the benefit of history what Reagan meant with that phrase back in 1960? Or how voters discerned the phrase? Did Reagan at any time inform Americans of when America was great, and for whom? The Southern Strategy was employed by George H. W. in the 1988 campaign. But neither the Reagan nor Bush II overtly implemented racial issues in their respective administrations, although some consider the originalism movement in conjunction with the creation of the Federalist Society as being influenced by the Southern Strategy as well as the alleged activism of the Warren Court, including its early decision in 1954 in Brown v. Bd. of Educ.
Henry, if you have followed my comments at this Blog over the years, you may recall my repeating a view that after many years following Brown, few directly challenge Brown any longer. But it's possible that has changed. Keep in mind, however, that Hillary got a larger popular vote than Trump. I don't know if America is prepared to go back to the days of Jim Crow, or that earlier time we don't like to talk about. I hope that's not the case. Do I expect Trump to inform Americans of when he thought America was great when he copied (and trademarked) Reagan's phrase? I don't think so. I'll continue to judge him by his own words before and during his campaign and his performance as President. As to my missing the meaning of the slogan, Henry, think of the new originalism regarding the meaning of the Constitution and its Amendments that have been discussed quite a bit at this Blog. There continue to be differences in the views of many. If the words don't provide the answer, then the new originalism goes from interpretation to construction. And Trump is an expert in construction. So perhaps as it is said in the 'hood, "Now we're all construed!" Henry, thanks for putting this on the table. Americans have to talk about this.
Sandy: Assume that my heartfelt plea immediately below for a coalition of Democrats and honorable Republicans to use the electoral college to bring forth a potential third-candidate who would be chosen by the House as our 45th President goes nowhere
When you suggest party establishment coup d'tats, be very careful what you wish for. Remember those 750,000 Tea Party folks peacefully demonstrating on the capital mall back on September 12, 2009? Imagine them returning, but this time they come armed. I may join their ranks. The other is a day in which we see members of the armed forces lining every street of our nation's capital... Do you anticipate the Soros rent-a-mobs will attempt to trash the inauguration? ...and the boycott of the Inaugural ceremony, such it is, by all honorable Democrats and Republicans in protest against the outrageous selections our sociopathic president will have made not only for the Cabinet... Actually, Trump's appointments should thrill the movement conservatives who formed the #nevertrump movement. Sessions was an excellent prosecutor with a low threshold for political corruption. The Democrat media is alive with speculation Obama will pardon Clinton to save her from long overdue criminal prosecution. Flynn was an outstanding Army intelligence officer who would have none of Obama administration's refusal to view the Islamic fascist movement as Islamic, even though it cost him his DIA job. I have no doubt the retired general will continue to tell truth to power as NSA. Pompeo is a brilliant mind (top of his West Point Class and a classmate of Cruz at Harvard Law) who also has no problem taking the powerful to task. He co-wrote the concurrence to the Benghazi Select Committee report which laid out a detailed indictment of Clinton and Obama's incompetence and lying. After Clinton and Team Obama tried to lay their screw-ups and lies at the feet of the intelligence community, the CIA rank and file will love Pompeo as their new boss. Rep. Tom Price is reported to be the front runner to head HHS. Price knows Obamacare inside and out and is the architect of one of the House repeal and replace plans. So far, Trump is appointing the most movement conservatives since Reagan. What a very welcome surprise! The whole world should realize that we are NOT the "United States of America..." The last time this nation was united was for a few weeks after 9/11. Frankly, you progressives have been living in a state of delusion since 2008. Obama and his fan boys and girls have always mistaken his personal popularity with support for the Democrats extremely unpopular progressive agenda. The reality is that Obama is the Democrats' Hoover, presiding over the largest voter reputation of a political party since 1930-1936. Obama has returned the GOP to its strongest position since 1928, holding majorities at every level of government and all the elected branches of the federal government.
SPAM I AM! has swallowed the kool aid (aka orangeade) of the person he repeatedly described as a fascist, perhaps to be expunged from the Trump enemies list so he can cash in and get away from the boredom of his rural law practice. Yes, SPAM has been inching for a while to get foregiveness for his Cruz Canadacy accusations of Trump as a fascist, over and over and over again. Ivanka, please note.
Shag:
What the new POTUS will do is still a very open question, but his appointments are absolutely top shelf. These are the folks I would have expected Ted Cruz to choose.
Rudy Giuliani is not someone I want in the Cabinet but his position on undocumented immigrants (said some very supportive things & as late as 2007 [if not later] made clear they are not "criminals") and position on gun regulations is notable.
The Electoral College gambit is a lost cause because it is not set up that way, if it ever was (see, e.g., Ray v. Blair on historical practice, including how expectations soon did not match reality). The electors chosen are safe party regulars. I'm sympathetic to the grasping at straws here given what is at stake, but admit it doesn't work. The rules of the game were understood to work a certain way & we shouldn't change them. Appeals to "original understanding" of independent electors there come off a bit silly given some of the proponents here. Finally, yes, Bush in 2000 was a bad choice, but not a horrible choice. And, this is reflected in reactions. Some simply don't want to admit this. So be it. Doesn't make it any less true.
SPAM I AM!'s concept of "top shelf" is redneck moonshine.
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By the Bybee [expletives deleted], the 2016 election results in CO suggest why SPAM is preparing to kneel before the fascist to have a shot at some of the spoils. As a consolation, he can access recreational ganja to maintain the quality of life he left FL "big law" for, high in the hills of CO.
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