The Supreme Court turned away an appeal on Monday brought by a man who faces the very real possibility of being tortured to death. Missouri intends to execute Ernest Johnson, who was sentenced to death in 1994, using pentobarbital; due to Johnson’s unique medical condition, the drug may inflict excruciating agony as he dies. Just two years ago, the court’s conservative majority—including, most prominently, Justice Brett Kavanaugh—suggested that an inmate in this exact situation could demand a different, less painful execution.
Johnson did precisely what Kavanaugh asked, asking that Missouri kill him by firing squad instead of lethal injection. Yet Kavanaugh and his five conservative colleagues ignored his plea on Monday, condemning Johnson to a death that may be violent and prolonged. In her pointed dissent, Justice Sonia Sotomayor highlighted her colleague’s perverse retreat from his earlier promise. It appears that Sotomayor, like Justice Elena Kagan, is fed up with Kavanaugh’s habit of posturing as a moderate, then voting like a reactionary. When the stakes are low, Kavanaugh knows how to sound like a reasonable, empathetic centrist. But when an actual person’s rights are on the line, Kavanaugh’s vote is nowhere to be found.
Johnson v. Precythe, the case that SCOTUS swatted away on Monday, constitutes yet another challenge to the grisly impact of lethal injection on the human body. In 2008, Johnson—who was convicted of murder and sentenced to death in 1994—underwent brain surgery to remove a tumor. In 2008, doctors removed about 20 percent of his brain tissue, causing severe scarring that left a brain defect. They did not eliminate the entire tumor. This trauma to Johnson’s brain, combined with remaining tumor cells, triggered epilepsy. Missouri now wants to kill him using pentobarbital, but the drug both triggers seizure and exaggerates sensations of pain. In 2016, Johnson alleged that lethal injection would therefore trigger a massive seizure and inflict an unconstitutional amount of pain, and initially asked that Missouri execute him using nitrogen gas instead.
This request was not far-fetched, since Missouri law explicitly authorizes the use of nitrogen gas in executions. In 2019’s Bucklew v. Precythe, however, the Supreme Court ruled that Missouri’s death row inmates could not demand death by gassing as an alternative to lethal injection. The court’s conservative majority held that gassing was not a viable option because it could not be “readily implemented” and had “no track record of successful use.” (Missouri’s neighbor Oklahoma currently uses gas for executions, as have many other states throughout history.) In short, Missouri did not want to figure out how to gas its prisoners, and the Supreme Court would not force it to learn. A state’s refusal to adopt new methods of execution can justify torture.
Bucklew was a brutal decision that was made possible by Justice Anthony Kennedy’s retirement. Kennedy served as a moderating force on Eighth Amendment issues, often limiting the scope of conservative decisions on capital punishment. And, indeed, shortly before he retired, Kennedy cast the deciding vote in a 5–4 decision staying the execution at issue in Bucklew. By the time the court heard arguments in the case, though, Kennedy had retired. It seems his hand-picked successor, Kavanaugh, was content with Bucklew’s extremism, since he joined the majority.
While Kavanaugh did not moderate Bucklew from a legal perspective, he did deploy a rhetorical smoke screen to make the decision sound less cruel. The justice wrote a concurring opinion to “underscore” an “additional holding” of Bucklew that favored capital defendants, one that “all nine Justices today agree on.” Yes, an inmate must present an alternative method of execution to avoid torturous lethal injection, the justice wrote. But, he added, “the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.” Thus, there is “little likelihood” that an inmate will not be able to identify a feasible alternative. Kavanaugh also pointed out that Missouri had even conceded, at oral argument, that inmates could request a firing squad, even though that method is not authorized by state law.
Kavanaugh’s concurring opinion in Bucklew set out a clear path for Johnson. He could no longer demand death by nitrogen gas. But he could ask for death by firing squad, as the state itself admitted before the Supreme Court. So he tried to amend his complaint to plead death by firing squad as an alternative to lethal injection. Then he ran into a roadblock at the 8th U.S. Circuit Court of Appeals. According to the 8th Circuit, Johnson’s request came too late; he should have requested a firing squad earlier, before Bucklew came down, and before SCOTUS gave him a legal basis to do so.
How could that be? As Kavanaugh explained, Bucklew marked the first time the Supreme Court declared that capital defendants could request a method of execution that is not authorized under state law. Yet the 8th Circuit did not see it that way. It held that Bucklew did not constitute “an intervening change in law” that would allow Johnson to amend his complaint.
Kavanaugh should have leapt at the chance to correct this holding, which contradicted his own concurrence. But on Monday, he declined the opportunity. His inaction prompted Sotomayor, in dissent, to foreground his broken promise. Sotomayor’s dissent repeatedly cited Kavanaugh’s concurring opinion in Bucklew, quoting from it extensively. It was Kavanaugh, she noted, who explicitly wrote that Bucklew changed the law (which the 8th Circuit denied). It was Kavanaugh who wrote that inmates “in exactly this situation should have little trouble identifying an available alternative.” And it was Kavanaugh who “emphasized” Missouri’s agreement that an inmate could request a firing squad.
Johnson’s “only misstep,” Sotomayor wrote, was “failing to predict Bucklew and address it pre-emptively. He bears no fault for that.” The fault lies with Kavanaugh, who extended the hope of relief, then walked away when Johnson tried to take him up on it.
Depending on your 401 (K) or your pension is a recipe for retirement disaster! America is facing a retirement crisis and every day there are more and more victims of this corruption.
directly ahead of his own political
interest and you know he his great
regret is saying read my lips
Dukakis told me a great story about
their post-election courtesy call and
he’s there standing there talking and
Bush says well I certainly can’t raise
taxes in the first year and Dukakis is
like this guy just kicked my ass saying
he never raised taxes and he’s talking
about in the first year you know it was
it was an amazing moment but I think he
redeemed himself at every point and he
knew in some ways talking about ninety
two after the budget deal after the
triumphs of the first Gulf War he he had
a sense that the work of his presidency
if that up to that point was over yeah I
think the work of his life was over if
you look at it I mean biographically you
23:50else he wanted to go to the UN Nixonwanted him to work for Haldeman he sendsbut Bush brilliantly intuitively againappealed to Nixon’s class anxieties andsaid well mr. president I’ll do what youwant but nobody up in New York is makinga case for you and I could go up there Iknow that world I can do it so here’sthe son of a failed grocer from YorbaLinda being told by the son of a Polishsenator from Connecticut that he can goup and represent Richard Nixon in thiszip codethat appealed to Nixon Bush understoodhow to reach Nixon so Nixon thoughtabout it while Bush was off getting hisoffice calls him back in and says noyou’re going to the UN the next job wasbeing Republican National Chairmanduring Watergate what second prize buthe and that’s the origin if you want todraw a line to the wimp factor becauseNixon decided Bush wasn’t really toughenough because Bush wasn’t willing to goout and cut every Nixon enemy throat andso and he talks about he says he thinksI’m not oh he thinks I’m not a killeryou clearly admire President Bush youknow really admires you was there anymoment as you’re working on this andyou’re writing this where you cringethat’s it boy I wish I didn’t know thatyeah I wish he had I think he committeda sin of pride in picking Dan Quayle itwas his first executive decision to bemade totally on his own since he went onthe ticket with Reagan he never sat downwith Jim Baker and Atwater and ales andmossbacher and Nick Brady and said hereare the choices what do you think hewanted to surprise them because hedidn’t want to be handled and I justthink yeah vice president Quayle wasvery kind to me in this project he’s alovely man more prepared than peoplegave him credit for at the time althoughwas better allowed it will to call thata bad roll out like calling the secondworld war and unpleasantnessJesus God listened to youyou really have gone GMA is a big
Here’s my succinct request to Donald Trump and all the Democrats and Republicans trying to unseat him.
The founders wanted to create a new kind of country where individuals — and individual communities — could pursue happiness as they saw fit. They didn’t achieve that instantaneously, and we still don’t have it in meaningful respects, but they set up the machinery to make it achievable. This doesn’t mean the founders were against unity in all circumstances. Their attitude could be described as in necessariis unitas, in non-necessariis libertas, in utrisque caritas. In essential things unity, in non-essential things liberty, and in all things charity. In other words, they understood that unity was a powerful tool, best used sparingly and only when truly needed. Odds are good that this was — or is — the basic, unstated rule in your own family. Good parents don’t demand total unity from their children, dictating what hobbies and interests they can have. We might force our kids to finish their broccoli, but even then we don’t demand they “celebrate broccoli!” I wish my daughter shared my interest in certain things, but I have no interest in forcing her too, in part because I know that’s futile. Spouses reserve unity as an imperative for the truly important things. My wife hates my cigars and has a? fondness for “wizard shows.” But we tend to agree on the big things. That seems right to me.
What is fascinating to me is that in the centuries since the Enlightenment, unbridled unity, enforced and encouraged from above, has been the single greatest source of evil, misery, and oppression on a mass scale, and yet we still treat unity like some unalloyed good.
Just Drop It
Okay enough of all that. Let’s get to the here and now. Joe Biden promised this week that if he’s president, he will unite the country. Newsflash: He won’t. Nor will any of the other Democrats. Donald Trump won’t do it either — and certainly hasn’t so far. George W. Bush wasn’t a uniter. Barack Obama promised unity more than any politician in modern memory — how did he do?
For the reasons spelled out above, our system isn’t designed to be unified by a president — or anybody else. The Era of Good Feelings when we only had one party and a supposed sense of nationality was a hot mess. It’s kind of hilarious to hear Democrats talk endlessly about the need to return to “constitutional norms” in one moment and then talk about the need to unify the whole country towards a singular agenda in the next. Our constitutional norms enforce an adversarial system of separated powers where we hash out our disagreements and protect our interests in political combat. Democracy itself is not about agreement but disagreement. And yet Kamala Harris recently said that as president, she’d give Congress 100 days to do exactly what she wants, and if they don’t she’ll do it herself. You know why Congress might not do what she wants it to do? Because we’re not unified on the issue of guns. In a democracy, when you don’t have unity, it means you don’t get the votes you need. And when you don’t get the votes you need, you don’t get to have your way. Constitutional norms, my ass.
So here’s my explanation for why I don’t want politicians to promise national unity. First, they can’t and shouldn’t try. Tom Sowell was on the 100th episode of my podcast this week, and one of the main takeaways was that we shouldn’t talk about doing things we cannot do. Joe Biden has been on the political scene since the Pleistocene Era. What evidence is there that he has the chops to convince Republicans to stop being Republicans? When President Bernie Sanders gives the vote to rapists and terrorists still in jail, will we be edging closer to national unity? When President Warren makes good on her bribe of college kids with unpaid student loans, what makes you think this will usher in an era of comity and national purpose?
But more importantly, when you promise people something you can’t deliver you make them mad when you don’t deliver it. I’m convinced that one of the reasons the Democrats spend their time calling every inconvenient institution and voter racist is that they are embittered by Barack Obama’s spectacular failure to deliver on the promises he made and the even grander promises his biggest fans projected upon him. When you convince people they’re about to get everything they want and then you don’t follow through, two reactions are common. The first is a bitter and cynical nihilism that says nothing good can be accomplished. The second is an unconquerable conviction that evil people or forces thwarted the righteous from achieving something that was almost in their grasp. The globalists don’t want us to have nice things! The corporations keep the electric car down! The Jooooooooz bought off Congress! The Establishment pulled the plug! The Revolution was hijacked! The system was rigged! The founders were Stonecutters!
If Donald Trump leaves office before four years are up, history will likely show the middle weeks of May 2017 as the turning point.
.. If Trump has nothing to hide, he is certainly jumpy whenever the subject comes up and his evident worry about it has caused him to make some big mistakes.
.. Though younger and more composed, Kushner is a lot more like Trump than is generally understood.
- Both of them moved their father’s businesses from the New York periphery to Manhattan.
- Like his father-in-law, Kushner came to Washington knowing a lot about real estate deals but almost nothing about government.
- Both entered the campaign and the White House unfamiliar with the rules and laws and evidently disinclined to check them before acting.
.. Thus, Kushner has reinforced some of Trump’s critical weaknesses.
.. Kushner, who has a high self-regard, has taken on a preposterous list of assignments.
.. He was able somehow (likely through his own leaks) to gain a reputation—along with his wife, Ivanka Trump—as someone who could keep the president calm and prevent him from acting impulsively or unwisely.
.. Richard Nixon, who was a lot smarter than Trump is, similarly misread the way the public would react when he arranged for the firing of his special prosecutor, Archibald Cox
.. Mueller’s investigation is limited to considering criminal acts.
.. His purview doesn’t include determining whether Trump should be held to account for serious noncriminal misdeeds he or his associates may have committed with regard to his election
.. of the three articles of impeachment adopted by the Judiciary Committee against Richard Nixon in 1974, the most important was for “abuse of power.”
.. Unless a single act is itself sufficiently grave to warrant impeachment—for example, treason—a pattern of behavior needs to be found. That could involve, for example, emoluments or obstruction of justice... Many of what seemed disparate acts—well beyond the famous break-in in the Watergate complex and the cover-up—were carried out in order to assure Nixon’s reelection in 1972, and they amounted to the party in power interfering with the nominating process of the opposition party. That way lay fascism... By definition, impeachable offenses would appear to concern conduct only during a presidency. But a number of constitutional law scholars, including the Harvard Law professor Laurence Tribe, who was dubious at first, believe that if a president or his associates working on his behalf acted corruptly and secretly to rig the election, then the preinaugural period should be included... Trump asked for Flynn’s resignation only on February 13, after stories about Yates’s warning appeared in the press—and then, two days after he fired him, the president called Flynn “a wonderful man.”.. weirdly, recently told aides that he’d like to have Flynn back in the White House... Flynn, in conversations with outgoing national security adviser Susan Rice during the transition, asked that the Obama administration hold off on its plan to arm Kurdish forces to help the effort to retake Raqqa, the ISIS capital in Syria. Since Flynn was a paid lobbyist for the Turkish government, which strongly opposed the plan, this action could possibly lead to a charge of treason... Flynn was leading the Russians to believe that they’d receive much better treatment under a President Trump and the Russians went along... A big question is whether Flynn discussed such important policy matters with the Russians without the knowledge of the president-elect... Trump tweeted: “Great move on delay (by V. Putin)—I always knew he was very smart!”.. Brennan testified he was worried that the Russians may even have recruited some Americans to cooperate with their effort to tilt the election... Intelligence analysts picked up conversations by Russians in which they bragged that they’d cultivated Flynn and Manafort and believed they would be useful for influencing Trump. (This doesn’t prove guilt on the part of either man.).. Laurence Tribe is gathering what he believes are impeachable offenses committed by Trump.2.. Tribe sees Trump flouting the constitutional ban on accepting “emoluments”—.. Trump’s firing of Comey for, as he ultimately admitted, “this Russia thing.”.. Trump’s saying to Russia’s foreign minister Sergey Lavrov and to Ambassador Kislyak, of firing Comey: “I faced great pressure because of Russia. That’s taken off.”.. There were also Trump’s efforts very early in the administration to get Comey to pledge “loyalty” to him.. In another form of pressure, Trump asked Comey when the FBI would announce that he wasn’t under investigation. Comey didn’t respond... Before it was revealed that Comey had taken notes of their conversations, Trump made a not-very-veiled threat that Comey “better hope that there are no ‘tapes’ of our conversations.”.. Where are all the leaks coming from? Many Republicans want to make this the issue rather than what the leaks reveal, but the fact that they keep coming is a sign of the state of near collapse of the White House staff... It’s not an exaggeration to say that Trump has the most unhappy staff ever, with some feeling a higher duty to warn the public about what they see as a danger to the country... Trump is a nearly impossible person to work for:
- he screams at his staff when they tell him something he doesn’t want to hear;
- he screams at them as he watches television news for hours on end and sees stories about himself that he doesn’t like, which is most of them.
.. Leaks are also being made by the intelligence community, many of whom see Trump as a national menace.
.. McMaster has yet to recover his reputation from having emphatically refuted things the Post story didn’t say.
.. Trump’s reckless act is believed to have endangered the life of an Israeli intelligence asset who had been planted among ISIS forces, something extremely hard to pull off.
.. Rosenstein found himself in a meeting with Trump and Attorney General Jeff Sessions (who had supposedly recused himself from any dealings on the campaign and the Russia matter) and under pressure to write a memo expressing his own strong negative views of how Comey had handled Hillary Clinton’s e-mail case. The choices before Rosenstein were to write the report, knowing that Comey was going to be fired anyway, or refuse to and resign or be fired. Then what use could he be?
.. he spoke melodramatically of his anguish in having to decide between two choices: to “speak” or to “conceal.” But many observers believed that he had a third choice: quietly to get a warrant and check out some of the e-mails that had traveled from Clinton’s laptop to her close aide Huma Abedin’s to that of Abedin’s then-husband Anthony Weiner before reopening an investigation, much less announcing one and perhaps affect the outcome of the election.
.. Comey’s testimony also angered Democrats by wildly exaggerating the number of Clinton’s e-mails that had landed on Weiner’s laptop—“hundreds and thousands,” he said, when actually there had been just a handful.
.. Comey’s comment that the thought that his actions may have affected the election made him “mildly nauseous” enraged Trump.
.. Everyone who hewed to the White House line that the firing had been based on Rosenstein’s memo, including Pence, was now embarrassed and lost credibility with the press and the public.
.. the respected Cook Report anticipates substantial Republican losses in the House. Republicans are starting to panic.
..Their challenge is how to overcome the twin blights of
- Trump’s chaotic governing and
- his lack of achievements on Capitol Hill
.. unlike Nixon, he can also make use of social media, Fox News, and friendly talk shows to keep them loyal.
.. Trump is, for all his deep flaws, in some ways a cannier politician than Nixon; he knows how to lie to his people to keep them behind him.
.. The critical question is: When, or will, Trump’s voters realize that he isn’t delivering on his promises,
- that his health care and tax proposals will help the wealthy at their expense,
- that he isn’t producing the jobs he claims?
- His proposed budget would slash numerous domestic programs, such as food stamps, that his supporters have relied on heavily. (One wonders if he’s aware of this part of his constituency.)
it would seem the incoming Trump administration plans to handle its affairs — domestic and foreign — in a manner that meets the dictionary definition of a “rogue state” as one “that conducts its policy in a dangerously unpredictable way.”
.. According to foreign government accounts, Trump praised Philippine President Rodrigo Duterte’s campaign against drug users and dealers, which has killed at least 4,500 people in five months. And he hailed Kazakhstan dictator Nursultan Nazarbayev for his “fantastic success” that can be called a “miracle.”
.. Trump is now open to keeping the Paris climate pact, after calling climate change a hoax. He campaigned against Goldman Sachs as a symbol of corruption and is now stocking his administration with Goldman bankers. He pledged to reinstate waterboarding and to repeal Obamacare but is rethinking both. He riled supporters with a pledge to prosecute and imprison Hillary Clinton but has reconsidered. He dropped his pledge to ban Muslims or those from terrorism-prone countries from entering America in favor of better vetting of all immigrants. He now says his border wall may be a fence in parts, and he dropped his talk of mass deportation of illegal immigrants.
.. His nominee to be commerce secretary assures Americans that “tariffs are the last thing” to which the Trump administration would resort — only to be contradicted by Trump himself, who tweeted Sunday that here will “soon” be a 35 percent tariff on imports from companies that offshore jobs.
.. Some suggest that there is a method to Trump’s madness, that he is trying to make would-be adversaries think he is irrational and capricious, thereby making foes and rivals wary of pushing him too far. This is why North Korea’s Kim Jong Un gets a wide berth. On a lesser scale, this also underpinned Richard Nixon’s “Madman Theory” during the Vietnam War
Who were some of the best unfiltered presidents?
Abraham Lincoln’s only national political experience was one term in the House of Representatives. He was an extreme dark horse candidate for the Republican nomination. Basically no one expected him to get it because he was a relatively minor figure.
He was such a success because he did things that, if people had known he was going to do those things, they would never have voted for him. That knowledge link is key. Lincoln positioned himself in the campaign as the least anti-slavery Republican — the Republican most likely to conciliate the South. And then when he went into office, of course, he wasn’t that at all.
.. I do not expect [Trump] to follow through on many of his campaign promises because one of the hallmarks of unfiltered leaders is that precisely because they don’t have a record, they can promise anything in order to get to power. They have more freedom to deviate because those promises have no reflection of their underlying beliefs. That can work out to their benefit. But that being said, the people who are thinking that “gee, this is normal” are deluding themselves.
.. What it demonstrates is the idea that people will be moderated by being in power is almost always false. When you are trying to gain power you say things meant to please the people who will decide whether or not you’re going to get power. That’s your goal. You want to please them in order to gain office and gain power. Once you’re in office, that’s what you have. You have power. Power is not a moderating force. Power is a liberating force.
.. That being said, if you were to pick an unfiltered person to be the president of the United States, it would be hard to imagine someone with worse odds of being a success than Donald Trump.
.. You write about charismatic leaders, particularly narcissistic ones, and their ability to, again, either be extreme successes or failures. You call charisma an “intensifier.” What does that mean?
Intensifiers basically make good things better and bad things worse. Charisma is a classic example. I define charisma as the ability to persuade people to do things through force of personality that you cannot persuade them to do [otherwise]. If the ideas you are trying to persuade them to are good ones, then charisma is incredibly valuable. If they are bad ones, than charisma is incredibly dangerous.
.. Clearly a very large proportion of the American population is affected powerfully by [Trump’s] charisma. He himself said this his followers are so committed that he could shoot someone on Fifth Avenue and they would still vote for him. That’s a pretty remarkable charismatic hold: That’s almost classically the definition of a charismatic leader who gets extraordinary amounts of adulation from their followers. You should expect that level of charisma to enable him to do things that a normal political leader simply could not even contemplate.
.. You will find that being a leader is much much harder than telling people how much better a job you would do if you were the leader. So you should take the advice of people who are experienced and the counsel and the help of people who have been there before. You should take it incredibly seriously.