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So, Roe is gone

SCOTUS has, by a 6-3 vote (in a sense 5-4, because Roberts would only have upheld Dobbs), overturned Roe v Wade. This a day after the Court declared a century-old New York gun law unconstitutional. The reasoning in both these cases is, if not novel, then very dangerous. The idea seems to be that if x does not have deep historical roots, then x can’t possibly be constitutionally protected. This leads the conservative majority to an orgy of historical cherry picking. The real claim is that we as a country are necessarily slaves of the past as construed by conservatives. This is not Law as Justice; this is Law as Implacable Destiny.

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Late night thoughts on reading Jack Goldsmith in the Times

It never fails to amaze me that the more powerful a person is, the more difficult it is to prosecute them for a crime. Suddenly the law doesn’t mean what we thought it clearly meant. We become timid and lost in the weeds of mens rea and other legal minutiae while rich criminals and con men walk away with the store. Certainly you or I would not be treated with such studied deference! Charge Trump with a crime? Well, let’s be careful now. Did he really commit a crime? Maybe it would be bad for the country to charge him. Suddenly we’re playing not to lose.

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So, What Do We Do?

We’re in a fine fix

The news is not great. Last week President Trump incited a riot at the Capitol. There’s really no other way to interpret this, although the usual suspects (Fox, The Federalist Society, et al.) have made pathetic attempts to make this seem like a frat party that got a little rowdy, and, well, Hey! It’s the People’s House, you know, it wasn’t really trespassing , and the cause was righteous because the election really was stolen, blah, blah. It makes me sick to my stomach.

So, here’s what’s going on, and this isn’t even a comprehensive list. The last week has been a very long year.

  • The House is introducing an Article of Impeachment to be voted on Wednesday if Trump hasn’t resigned or been 25th Amendmented out of office (not holding my breath).
  • The leadership of the Capitol Police (plus the Sergeants-at-Arms of the House and Senate) have resigned.
  • Two members of the Capitol Police have been suspended and one has been fired over their behavior last Wednesday.
  • The FBI warns that there are plans for possibly violent protests at all 50 State Houses and Washington DC starting January 17th. The FBI further warns that the threat outstrips the Bureau’s capacity to respond, and that local police departments are probably on their own for this.
  • A Secret Service agent is under investigation for having supported the insurrection last Wednesday;
  • Cabinet members are resigning at the rate of one per day. Who’s going to be left to turn off the lights when this party’s over?
  • Donald Trump is nowhere to be seen. His beloved Twitter has been taken from him (that could be a whole bullet point by itself). He has made no statement except for the hostage-like video he was clearly coerced by staff into making last Wednesday. Nor has Mike Pence made a statement. What the hell is that about? No one from the executive branch has made a statement or given a presser on the events of last Wednesday. The entire executive branch is AWOL.

There’s more, of course; but let’s just try to deal with those bits. The organizing principle seems to be that he entire GOP is reduced to this: they all think they’re in some reality TV show where they can do what it says in the script and then go home, pop a beer, and watch it all, without any consequences. The entire GOP is in cloud cuckoo land.

The choices before us

So, what do we do now?

Let’s talk about impeachment.

Should Congress

  • Impeach Trump Wednesday and have Schumer invoke a rule that would bring the Senate back to Washington to take up impeachment immediately?
  • Impeach Trump Wednesday and put it on the shelf for 100 days to give the Biden Administration some room to get some things done without distraction.
  • Not impeach Trump, hunker down and try to make it until January 20th.

Let’s talk about the Inauguration, if we get to it without some sort of conflagration, which, sadly, is a big ask. But let us grant that we reach January 20th more or less intact. Should we

  • Try to hold the Inauguration pretty much as usual on the Capitol steps but with a much smaller crowd because of COVID?
  • Hold the Inauguration inside the Capitol or even the White House with only a few important people present for the cameras?

Let’s talk about how law enforcement at every level has been infiltrated by the crazies. That law enforcement agencies across the country, federal, state, local, have tilted right for a long time is a commonplace; but now they have plunged off the cliff. Most famously, the New York FBI office was rabidly anti-Hillary in 2016, and an internal message among individuals in the office was a celebratory "shit’s getting real" after the Trump victory. It may have been the risk of leaks from the New York office that forced Jim Comey’s hand to announce the reopening of the Hillary emails case just before the election, apparently against DOJ rules against the appearance of election interference.

But we didn’t need those examples to know the right-wing slant of law enforcement. What we didn’t want to hear but is now obvious (and there were voice screaming at us about this) that law enforcement had been infiltrated by white supremacists all over the country. The difference in how BLM protests and (mostly white) right-wing protests are handled by state, local, and federal police is now so obvious that…well, words fail, really.

Let’s talk about the ramifications of coordinated protests/attacks at 50 seats of government around the country.

The FBI has raised a five-alarm fire about plans to, well, what exactly? Do at 50 state houses what was done last Wednesday to Congress? That seems to be the case. Clearly, federal law enforcement doesn’t have the resources to protect 50 state houses at the same time it tries to provide adequate security for Biden’s inauguration. And with the infiltration of local law enforcement by white supremacists or, at least, Trump loyalists, this doesn’t bode well for what can happen in the states next week.

Let’s talk about the executive branch being as dysfunctional as it has every been in the history of this country. There are no adults left in the room.

Assessing the choices

First, it must be said to set the stage here about what might happen in Congress in the next week. GOP House members are already running for 2022. It’s not surprising that they are acting in fear of being primaried and being turned out in two years. It’s also the case that many of them fear for the safety of their families from the Trump brigades. So, there’s that.

About impeachment: It needs to be done. I don’t see any way around it now. His actions are nothing if not impeachable. Really, his abuse of power and foment of mob action is textbook impeachment stuff. However the Senate wants to manage it, it must deal with expeditiously the inevitable impeachment from the House.

About the Inauguration: I’m worried about Biden wanting it to be business as usual, to be held on the Capitol steps. I understand the desire to maintain the traditional symbolism of the transfer of power, but we are in extraordinary times. The important symbolic act is Biden receiving the oath of office from Chief Justice John Roberts. That can happen anywhere, inside the Capitol, in the White House, in a cave somewhere. It doesn’t matter. Just so Biden receives that oath of office.

Don’t make the Inauguration low hanging fruit for the crazies out there.

How screwed are we?

That’s an impossible question to answer. We have no idea how bad things could become, because we have underestimated at every step the threat posed by what is now the core of the Republican Party. Let that sink in. What was once called the alt-right, is now the Republican Party.

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Ambient music

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I started listening to ambient music a few years ago, starting with Brian Eno. But I didn’t start at the obvious place—Music for Airports, Eno’s canonical ambient album from 1976 that launched the genre. No, I started with Reflection, the first serious release of Eno’s iterative music; that is, music based on an algorithm that essentially composes itself. I was fascinated by that because I found that this music satisfied impressively Eno’s definition of ambient music as being as interesting as it was ignorable. It could work as background music as well as being foregrounded as serious music, which, frankly, much of it is.

It was in Italy, in the fall of 2018, when I ventured beyond Brian Eno. As I took my daily walks around the ancient town of Sansepolcro, I would often listen to ambient music softly through my phone. I became particularly fond of Moby’s Hotel: Ambient, especially the two versions of Live Forever, which if scored for orchestra (easily enough done, I would think) could become a concert hall staple. They are really that good!

Alas, as always happens with genre boundaries, there is a wide range of music now that can be labeled ambient, and, frankly, much of what I hear so labeled really isn’t ambient. Conversely, on streaming services like Apple Music, Spotify, YouTube, what have you, there is much music labeled new age or alternative or even electronic that should be considered ambient. For example, Steve Roach is an important composer of ambient music; but there is little consistency on the streaming services about how his albums are labeled with respect to genre. This is a pity, because one can’t just search for ambient music on these services: you would miss too much good stuff! You have to do your own exploring.

I’ll leave you with a few suggestions for exploring ambient music, beginning with the albums I’ve already referenced above.

And there’s much more.

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In Lieu of free speech

This afternoon there was a spirited discussion on the In Lieu of Fun show about Twitter, Facebook, content moderation on social media, suspensions, bans, etc. This discussion was a consequence of the Facebook pages of Ben Wittes, In Lieu of Fun, and Lauren Roberts being suspended yesterday because of the way Lauren and Ben advertised yesterday’s show about QAnon. Facebook’s AI interpreted the language used as promoting QAnon. If Ben and (especially) Kate Klonick had not been "connected" as they are, the ban on those pages might have lasted quite a long time (which they both acknowledged). Indeed, Lauren Roberts, not so well connected, found herself in the position of not even being able to get to the plate, much less first base, in trying to get her personal page back until Ben and Kate were able to effect a solution with Facebook.

So, the discussion, as these things usually go (and the conversation in the chat, as well), centered on fairly high matters of principle, as discussions in the legal community usually are. My concerns are quite different.

My view begins here: social media is sui generis with respect to the past. Consider: the John Birch Society might have taken over the GOP in the 50s if the internet and social media had been around then. The Birchers were not able to then because of the gatekeeping of William Buckley and others in conservative media to freeze out them out. Similar points could be made about the American Communist Party being frozen out by liberal media. But I want to emphasize here that the real threats to American democracy have always been from the right. My overarching point is that with the advent of social media, the old guardrails against radicalism of any stripe have disappeared, and that a new public regime has appeared where radicalism (especially on the right) is amplified daily. The consequences for public life are obvious: a majority of Republicans think the election was fraudulent and that Trump actually won.

Where are we now? We have a majority of the GOP thinking that the election was stolen and that Trump won. We have a yougov poll reporting that 45% of the GOP rank-and-file support the insurrection at the Capitol on Wednesday. In a chilling Twitter thread this morning, Jelani Cobb lays out the case that we should expect a continuing insurrectionist, revanchist movement in this country that will seek to "restore" Trump to the Presidency.

None of this could have happened without the corrosive effects of social media. So, yes, by all means, let’s talk about free speech and high principles. I like doing that, too; but don’t forget or ignore the very real consequences to the fabric of our nation that social media has wrought.

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Aftermath Part 2

I am desperately afraid that we don’t recognize the crisis that confronts us in America. We have a plurality of one party that supports the insurrection on January 6th. We have a President and any number of pretenders (Harley, Cruz) willing to be the champions of that number. They are not going away. They cannot be reasoned with. They act with the righteous flame of certainty. The GOP elite has created a constituency that they have totally lost control of; they thought they could surf that 150 ft wave and come out of it with their integrity intact, if they ever had any integrity to begin with.

So, we can talk about the enablers not only of Donald Trump but of an attack against American democracy itself. Just today, Speaker Pelosi announced a plan to bring a privileged resolution to the floor of the House on Monday, meaning that within an hour the House could send articles of impeachment to the Senate for trial. Majority Leader McConnell, that enabler of enablers, in a memo to other Senate Republicans says that if the House does indeed send articles of impeachment to the Senate, he would postpone consideration of those articles until January 19th, the day before Biden’s inauguration.

What does this mean? Simply, that McConnell will now be personally responsible for anything that Trump can contrive to do in the next 12 days to further undermine the American experiment in democratic self government. It really is as simple as that. And, most chillingly, he doesn’t care. He has never cared about anything but power.

Remember: this is about incitement to insurrection. If that’s not a high crime then what is?

At the end of the day, are we underestimating the damage Trump has done to America and just tragically unaware of the danger going forward?

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Aftermath

Just read JVL. He couldn’t be more right.

I particularly appreciate his point about the behavior of the police inside the Capitol: they showed restraint, and because of that restraint more deaths and injuries were prevented. The failure of the police here was allowing the breach of the barricades and allowing the mob to get to the Capitol building in the first place. Now, of course, we have enough video and photo evidence to identify almost everyone who was in the building, and prosecutions must be pursued, not vindictively, but justly and reasonably. Acting AG Rosen is on the record as advocating prosecuting BLM protestors for seditious conspiracy. He had very weak reasons for doing so. What happened Wednesday is textbook seditious conspiracy. It’s one thing to paint graffiti on the side of a federal building and quite another thing to invade the Capitol building while Congress is in session with weapons and to break down doors and windows and inhabit offices and vandalize them. To equate them is to commit a category mistake.

Also, If Trump’s incitement of the mob and his enthusiastic following of the TV coverage of the event isn’t impeachment-level behavior, then I don’t understand what could possibly qualify. Lying about a blow job? Be serious.

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The Day After

Congress did the thing, finishing in the early morning, but not until the sedition caucus had their bit of fun gumming the works for hours in a fit of performative political theater.

Afterwards, Congress adjourned until January 19th. Cowards. Congress should be working today and into the future on impeachment proceedings on a President that incited sedition against the government of the United States. Expedited proceedings. 

Josh Hawley and Ted Cruz should be kicked off this bus to wander the wilderness with only the clothes on their backs as penance for what they are doing to our politics. And Louis Gohmert and all the other flying monkeys of the GOP House should be joining them. 

A question I’ve been pondering today. Say that Trump pardons the Capitol mob. Would those pardons be invalid because Trump could be considered to have incited the mob invading the Capitol? Can a President do that?

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Music for 2020

As I look back over 2020, no music has given me more pleasure than Robert Fripp’s Music for Quiet Moments, a series now up to 35 entries, released every Friday since back in the spring. No. 6, subtitled Seascape, stands out among many excellent entries. You can find it on all the streaming services. This series comprises some of the finest ambient music I’ve heard in years, and that is saying something.
The Tallis Scholars finished their magisterial cycle of Josquin masses with a beautiful performance of the Missa Hercules dux Ferrariae and two other masses. The whole cycle, three decades in the making, is worth your attention.
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The Berlioz Requiem: A few thoughts

Berlioz, who was a non-believer, was nonetheless so moved by the text of the Catholic Requiem that he jumped at the chance to compose a setting for it. Berlioz being Berlioz, the Grande Messe des Morts is sui generis: there really is nothing else like it in the history of music.

I have listened to well over half the recordings ever made of the Requiem, and I have seen it performed twice: the performance conducted by Sir Colin Davis at St Paul’s in London, in July of 2001, stands as one of the two or three greatest experiences of my life.

Recordings of the Requiem used to be quite rare. Understandably so; since a performance requires huge forces, including a choir numbering in the hundreds, and four extra brass choirs positioned separately from the rest of the orchestra. When Colin Davis recorded his benchmark performance, in 1969, there were few other disks in the catalog—Munch, Abravenel, Bernstein, Ormandy. All of them (except the Ormandy) clocked in at well over 80 minutes (Davis’s is close to 90 minutes). Now, I notice that conductors are speeding up the Requiem. Ozawa’s Boston reading and Spano’s Atlanta performance both fit easily onto one CD (and I hope that tempos weren’t chosen with the intention of squeezing onto a single disk). More recent excellent performances by McCreesh and Nelson offer more reasonable tempos that breathe as the music demands. For my money, the Offertorium gives one more musical magic per unit time than any other music I’ve ever heard, and the range of interpretations is very broad with regards to tempo: Ozawa is well under eight minutes, while Davis’s last recording runs well over 11 minutes. McCreesh and Nelson in their recent recordings strike a good balance around 10 minutes.