What to do with a problem child

I got to thinking about problem children this morning. More specifically, children with behavioral problems. Say, for instance you were dealing with a child who lied, told stories about other children, called them names (and called you names), cheated at games, stole money from your purse or wallet, thought he or she was better than anyone else, constantly whined abut how he or she was being treated, bragged, bullied, blamed everyone else for things that went bad,took credit for things he or she had nothing to do with, and seemed to put others in danger of being physically and emotionally harmed. If this described a child with whom you were dealing what would you do? Indeed, which problem would you tackle first?

Yes I know the first thing you would think of was that the child’s parents needed to be involved (or had failed the child). However, the specific child I was thinking of is a man over 70 years old. His parents are not going to be either helpful or able to be held accountable for their child’s behavior—they have passed on. So, let’s ask a specific group of people how they would handle a child with these (and more) behavioral problems. Let’s ask Trump supporters how they would handle the child especially if that child were their child. However, let’s not tell them that the child in question is Donald J. Trump.

I would guess that Trump supporters would find the child’s behavior inappropriate and would have numerous recommendations for what to do to correct the child’s behaviors. So, one should listen patiently, perhaps even take a few notes as the Trump supporters tell us how to correct the child. I expect the concept of a woodshed would come into play along with other corporal “techniques.” Then at the end of this, find a way to ask them exactly why they support Trump (might be best to make sure they are not armed before this final question). I don’t know if this will work, but it may be a way to find out why they would vote for a man whom they would spank in other circumstances.

T. Edward Westen, October 26, 2022

This material also appears at deartedandjody today


evidence that Alito mislead Senators on Roe

I think the disadvantage of age is that I would rather write than do the research. I say this in the context of an academician. I was reading the CNN version of the current NY Times story “Alito Assured Ted Kennedy in 2005 of Respect for Roe v. Wade, Diary Says” and realized that Alito’s age had possibly corrupted his point of view on stare decisis. It certainly did not change his position on abortion and the legitimacy of Roe v Wade. Alito criticized the Roe decision as “Its reasoning was exceptionally weak.” Yet he chose to quote from a witch hunter in writing his decision overturning Roe.

Unlike Alito, who has the resources to do the research (a bevy of law clerks and full computer support), I do not have the full resources for research. However, Alito tends to use his resources rather unwisely. He overturned the decision in Roe because he could. He did not look for the evidence. He in effect turned a medical procedure over to thousands of politicians across the several states only a mere sliver of who have medical training. He imposed a religion on the medical procedure—his. His and earlier court decisions in which he was in the majority have allowed the states to maintain political dynasties of political parties who once entrenched by gerrymandering stay in power through gerrymandering, He and the res of the majority of the Supreme Court have some ham-strum the body politic with their “political decision” nonsense about how legislative districts are drawn. Representation is not a political question, clearly all people are created equal. They all should have the same shot at being represented as the entrenched political group which has been favored by gerrymandering in their state.

Against the backdrop of malapportioned legislatures, Alito and his colleagues knew that most of the states would outlaw abortion and do it in such a manner as to prohibit abortions. That creates a medical quagmire that will kill countless women because of the absurdity of their legal potions and their religion.

T. Edward Westen, October 25, 2022

Are you a Trump Supporter? Or are you an American?

Imagine yourself in Germany in 1930 through 1933. Would you be saying to yourself ““this can’t be happening.” You would have been wrong then. If you are saying to yourself the same thing now, it is happening. The Nazis did not have a FOX News to make it easy for them. If you are offended or incensed by the title, you are the right person to ask yourself which you are.

Fleecing America Again (Still)

(This material also appears in deartedandjody today)

Donald J. Trump’s Fleece America Again efforts is using the lawful FBI execution of a search warrant to retrieve classified and other documents belonging to the American people the disgraced, twice impeached ex-president and current chief beggar had been illegally keeping in an unsecured location at his residence in Florida as a pretext to send out fleecing texts and emails beginning August 9th the day the FBI executed the search warrant. Since the FBI ran the operation so as to attract as little attention as possible even wearing street clothes rather than their blue FBI jackets so as not to cast any negative aspersions on the current beggar in chief, to make the fleecing possible Donald J. Trump announced the raid himself.

His immediate attempt to monetize his illegal possession of classified information got me to thinking. The Department of Justice is currently stretched to the limit because of the large number of criminal cases spawned by Donald J. Trump and his minions, why not start a fundraising campaign to get more resources for the Department of Justice so they can more quickly and effectively investigate and build the criminal cases of that criminal behavior? To raise funds for the DOJ one could use the same kind of email-text message campaign that the disgraced, twice impeached Chief Con-man uses to raise his funds. Indeed, one could make small alterations in the message and send the appeals to the same email and text base he uses—people whose emails address or phone numbers have been captured by the Trump Criminal Enterprises, “UnINC”—a couple of political action committees. Since the maga crowd does not seem concerned that they are already financing the many investigations of Donald J. Trump with their tax dollars and they, at the same time, send him money to fight those investigations (according to the wording of the beggar in chief’s messages demanding money from them), I can’t imagine they would mind making the investigations better or even fairer (everyone loves a level playing field) by making cash contributions to the DOJ. In fact such a campaign would have an advantage as the fleecing emails and tests tell “patriotic Americans if they donate they will go on a list given to their felonious leader to read–”you want him to read your name.” I think the cash donations to DOJ could guarantee that Donald J. Trump will notice the donors and call them out by name, even giving then neat nick names as he has others who have engaged his ire–”Little Marco,” “Sleep Joe,”, “Lyin’ Ted” to name a few. Can you imagine the appeal. “Have a chance at Donald J. Trump calling you out by name and even giving you a cool nickname.”

T. Edward Westen, August 11, 2022

A Small Change in Congress — Part 4

This material also appears in deartedandjody today

In 1969 I served four months as an American Political Science Association Congressional Fellow in the office of newly appointed Senator Ted Stevens of Alaska. Since Senator Stephen’s was assigned to the Armed Services Committee he resigned his commission in the Air National Guard stating that it would be a potential conflicts of interests. It the time the big three Auto manufacturers leased vehicles to Senators at $1/year. Senator Steven’s said that amounted to a bribe and did not sign on for a dollar a year auto lease.

For all apparent evidence the Senator from Alaska appeared to have character and be an honest man. Yet, Senator Stevens ended his tenure in the Senate with a federal bribery conviction.

I can not guess what caused the apparent change nor know if my initial assessment of the Senator’s character was accurate. I do suspect that the extent of opportunities for increasing one’s wealth while a seated Senator are overwhelming and ubiquitous. Those opportunities would present a norm that would cause the line between one’s personal situation and one’s representational duties to be faded to the point one could no longer see it.

The line between public service and duties and one’s interests exists for all public office holders. And it fades foe most. When I lived on Coe Road in Isabella County, Michigan I wondered why the road one mile north of me was paved for two miles. Eventually I learned a resident on it had been a County Road Commissioner when it was paved. I can well imagine the published service arguments used to justify the road being paved. The thing is, for a Member of Congress financial filings, prohibitions on personal gains while in office (exceptions for inheritance and blind trust gains), campaign donations (publicly financing elections instead) could make the line between a Member’s public job and personal gain stand out.

This material also appears in deartedandjody today

A Small Congressional Reform — Part 3

This will also appear on deartedandjody today

I am about as far away from an expert on the topic of wealth accumulation as one can get. What I know is that everyone I know seemed to have worked for a living and they had one major job, unless they were at or below minimum wage then it took two or more jobs to make a living. While making that living, one set aside, either in a self disciplined savings plan or a retirement plan at work which was mandatory or both (and Social Security was was mandatory) money for retirement. This pattern was true for everyone from bakers to bankers and everyone in between. The thing is those with higher incomes did not seem to have multiple jobs or sources of income. If they had multiple sources of income it was a facet of their main occupation.

Members of Congress currently receive a salary of $174,000/year plus benefits and an expense account. See https://www.thoughtco.com/salaries-and-benefits-of-congress-members-3322282 for a fairly full explanation of their pay and benefits. One can argue about whether or not that salary is high or low, but keep in mind that “…the threshold for the top 10% individual income in the United States started at $129,181 … in 2021.” (source: https://dqydj.com/income-percentile-calculator/ )

Now add to their legislative activities (their job) the need for Members of Congress to raise money for their next election and this results in “ more than half their time, sometimes 6-8 hours a day, .. spent not working on legislation. Instead, they are essentially full-time telemarketers {whose} top priority is to raise obscene amounts of money dialing for dollars. All this, during business hours when they are supposed to be working for you, the taxpayer. “ (Source https://www.termlimits.com/congress-fundraising-priority/ ).

So we have Members of Congress spending about half of a normal work week on the phone raising money, and presumably the rest of their time working on the job of being a Member of Congress, traveling between Washington DC and their constituency, spending time in their constituency interacting with (listening to) constituents, and they still have time on their hands to accumulate wealth on the side? Going back two days ago and the data from Ballotpotia showing Members’ of Congress wealth accumulation while in office, it would seem so. One wonders how they have time for families.

In our society we tend to judge how successful a person is in his or her professor or career by his or her wealth accumulation. We do this for bankers and bakers and everyone in between. It would appear that those in Congress are wealth accumulation superstars. But superstars at what, for their salaries are only in the top 10% but their wealth accumulation is in a much higher strata of the US population. I wonder how Members of Congress would compare to upper echelon criminals?

The point is abundantly clear. Like the rest of us, Members of Congress seem to put their personal effort into improving their position in life. Unfortunately that is not what they are elected or paid to do. We need to put an end to their personal wealth accumulation and publicly fund their elections. Perhaps that way we might get some “real” attention on the issues that confront us: global warming, poverty, corporate rip offs, and the misinformation industry just to name a few.

T. Edward Westen, August 6, 2022

A Small Congressional Reform — Part 2

This Material also appears today in deartedandjody

Thinking about the costs to the nation of House and Senate member wealth accumulations while in office.

It is one thing for a representative or senator to see a money making opportunity it is another for either to see a money making opportunity attached to a spending bill. Members of both houses in Congress not only see ahead of time how much money will be spent and where, they also partly determine the amount spent and where. So they can direct where and who will be the direct beneficiaries of federal spending. It is but a small side issue, for example, Or to direct spending in a geographic area where the member has a connection to or an interest in firm which can compete for a contract or for for a member to buy land in the right place ahead of time. In some cases, it may only be a matter of directing federal money for projects to where a Member of Congress already owns land or has financial interests. In all cases the Member will tout the project as a benefit to his or her constituency. The possibilities are endless for Senators and Representatives to pick up money when one knows “for certain” where and when projects will be funded.

However, spending the money where it will provide the greatest benefit to the constituency in general involves an entirely different set of parameters for making decisions about where to spend the money (place a project). Government money spent that benefits a sitting member of either house in Congress, will cost multiple times what the senator or representative will reap in lost benefits to the greater constituency.

When Members of Congress seek to reward their campaign donors with public policy, for example both tax benefits or not allowing the government to negotiate prices of medicines, the cost to the country is immense. However, it is both difficult to determine whether money in Members’ wallets or benefits to campaign donors has a greater cost. It is also difficult to distinguish between the consequences of payouts in members’ or donors’ pockets when it comes to harm to the nation.

As I noted yesterday, a good deal of the information about the amounts (benefits to Members of Congress) of wealth accumulation while in office and policy designed for campaign donors is available. It is just devilishly difficult to gather into one place for analysis. It is going to be difficult to change either “benefit” as the beneficiaries are the Members of Congress themselves.

T. Edward Westen, August 5, 2022

A Small Congressional Reform

(This post appears on deartedandjody today)

Last night, I heard the Lt. Governor of Wisconsin, Mandela Barnes, who is running for the Senate seat currently held by Senator Ron Johnson say that the Senator has more than doubled his wealth while in office. I fact checked it and found, the Lt. Governor was probably understating the growth of Senator Johnson’s wealth increase while in office. https://www.newsmax.com/politics/sen-ron-johnson-congressional-integrity-personal-wealth/2020/07/29/id/979559/

I started looking for the wealth grown of other elected representatives and stumbled across Ballotpedia’s list of the wealth growth of Representatives (Senate and House) since their elections. https://ballotpedia.org/Changes_in_Net_Worth_of_U.S._Senators_and_Representatives_(Personal_Gain_Index) Granted Ballotpedia’s study was back in 2012, but it is a window into the hard cold truth that wealth accumulation for Members of the House and Senate goes far beyond their camping chests.

We have suspected that Senator Machin has been doing the fossile fuel industry’s bidding in holding up the Biden tax and climate warming battle proposals (as has Senator Sinema from AZ re the hedge fund managers and private equity executives tax advantages) as well as profiting from the coal company his son serves as president. So, one can suspect the campaign donations and personal wealth growth may be related. Nonetheless, neither campaign donations nor personal wealth growth should determine public policy.

We need to publicly finance election campaigns to remove campaign donations from determining public policy. Likewise, we need to impose restrictions of wealth growth for members of the House and Senate by requiring that their personal fortunes go into blind trusts and that any wealth accumulation outside of a blind trust other than their government salaries be forfeit to the US Treasury on the day taxes are due for the year they were acquired plus interest they could have earned on that wealth accumulation in the time they held the wealth. In addition any evidence of members of either house in Congress sharing information that would allow anyone to accumulate wealth would be subject to 5 years in prison for the member or former member of either House for each bit of information shared that resulted in any person or entity accumulating wealth. Or, perhaps a more severe penalty would be in order.

The purpose is to remove personal interest from the potentially dominant role it plays in the votes of Representatives and Senators. I would apply the same rules to elected and appointed members of the executive and judicial branches of government.

T. Edward Westen, August 4, 2022


{This will also appear in deartedandjody today}


By T. Edward Westen

Before 1933, the inauguration of presidents was held in March. The elections were originally held, as they still are, in November and this created a four months “lame duck” presidency. Four months between an election and an incoming administration was a lot of time for the outgoing, or lame duck, administration and its allies in Congress to do a lot of things. On January 20th of 1801, outgoing President John Adams nominated John Marshall to be the Chief Justice of the U. S. Supreme Court and the Senate ratified his appointment. John Marshal, who had been John Adams’ Secretary of State for the last year of Adam’s Presidency left that office February 4th of 1801 when he was sworn in as Chief Justice of the U. S. Supreme Court.

In the waning days of the Adams Administration, Congress passed the Judiciary Act of 1801 which had the effect of stacking the U.S. courts with Federalists. When John Marshall left his position as Secretary of State he left before the the Adams commissions for Judicial appointments would have appeared on his desk in that office. Those commissions showed up a month later and were needed if the appointed judicial officials, judges and magistrates, were to take office. The commissions were not distributed by the Adams administration. When James Madison, Thomas Jefferson’s Secretary of State assumed office he found four of those those documents on his desk. At Jefferson’s urging, he refused to deliver them.

William Marbury, one of the Adams appointments whose commission was not delivered by the Adams administration sued Madison in the U.S. Supreme Court asking for a Writ of Mandamus which would have ordered Madison to deliver to Mr. Marbury his commission. Marbury filed under the Judicial Act of 1789 which granted the Supreme Court original jurisdiction to issue Writs of Mandamus in cases like this.

I particularly like the way Professor Susan Low Bloch describes Marshal’s Marbury v. Madison, 5 U.S. 137 decision in a 2001 Georgetown Law Faculty Publication entitled The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court? [18 Const. Comment. 607-627 (2001) ]. “First, [Marshal] held that the petitioners were entitled to their commissions. Second, he concluded that the Secretary of State could be the subject of judicial process, including a writ of mandamus. Finally, he held that a writ of mandamus was the appropriate remedy for the plaintiffs. But, said Marshall, the Supreme Court could not constitutionally be given original jurisdiction to issue a writ of mandamus in this type of case. Because this case was not within one of the two areas of original jurisdiction specified by Article III of the Constitution, the Court could act only as an appellate court in this matter. And because Section 13 of the Judiciary Act of 1789 purportedly conferred on the Supreme Court original jurisdiction to issue writs of mandamus in this type of case, Section 13 was unconstitutional. Thereupon, the Court explained at length why it was justified in rendering ineffectual an Act of Congress that it found inconsistent with the Constitution. Finally, because it had no jurisdiction in this case, the Supreme Court denied the relief sought by Marbury and his colleagues. This was a masterful opinion. Only by asking the questions in the order he used, with jurisdiction last, and by creatively finding a conflict between Section 13 of the Judiciary Act and Article III of the Constitution, could Marshall assert the judicial power to review acts of both the legislative and the executive branches without ordering anyone to do anything-and thereby avoid the risk of defiance. It was, by any standards, a monumental opinion, far more important than the issue that inspired it.”

John Marshall was a founding father. He followed James Madison’s lead in supporting and advocating for Virginia’s ratification of the U.S. Constitution in the Virginia Ratifying Convention, June, 1788. The Judiciary Act of 1789 was the Act that set up the U. S. Court system. The United States under the Constitution started March 4, 1789. The Judiciary Act was passed within a year of the debates over the ratification of the Constitution. Most of the drafters of the Constitution were still around and in various public offices. It is interesting that no one in Congress raised the issue of Section 13 of the Judiciary Act of 1789 potentially being inconsistent with wording of Articular III of the Constitution. Yet, 14 years later, John Marshall discussed the Constitution in his Marbury v. Madison decision in terms of what mush have been meant by the wording. His discussion implies that the drafters would have been very precise in their word usage. Never mind that the convention took place from May 25th to September 17, 1787 in Philadelphia. Remember that air conditioning was not yet invented, and electricity barely existed (and then only in Ben Franklin’s mind from his experiments), so it would have been warm and humid. Never mind that the issues that were of prime importance (big and got in the way) were the vastly different population sizes of the states and the nasty little issue of slavery. Those two issues got the most attention of the delegates. So taking particular focus on differences between the Supreme Court and the rest of the courts in forming Article III may not have been quite as persnickety as Marshal may have imagined looking back from 1803. Indeed, Marshal could have asked Madison or any of the other drafters who were at the Philadelphia convention. (Madison being a party to the suit at hand and of the opposite political party at that point from Marshal may not be been the best source of information, yet today we go to Madison’s notes to find out what happened at the Philadelphia gathering that rafted the Constitution.) Even as early as 1803 the “framers” were speculated about. So, the logical reasoning by Marshall to establish that violations of the Constitution has to be noted by some entity (my words) and that entity need to stop those violations (again, my words) the logic was still satisfactory enough to enshrine judicial review as a power of the court. I should point out that during the remaining 30 or so years of his service as Chief Justice of the Supreme Court, Marshal did not invoke judicial review in any other case.

While Adams forwarded some 40+ judicial appointments to the Senate which confirmed them by March 4, Jefferson took the oath of office on March 4, 1801 at noon. Consequently Adams was no longer in a position to see that the certification of office were delivered. Jefferson, saw it as attempt to put the friends of Adams into office with life appointments so instructed Madison, his Secretary of State, not to deliver the commissions. Had Marshall still been Secretary of State, before noon on March 4th, I rather suspect the commissions would have been delivered. So to say Marshall wanted Marbury to receive his commission is a given.

So, it would appear that John Marshal may well have crated judicial review out of a loop hole he invented. Had Marshall and the Court given Marbury his commission there is strong evidence that Jefferson would have put pressure on the House to impeach Marshal. So, judicial review was a way that John Marshall thumbed his nose (or perhaps used another finger gesture) at Thomas Jefferson that Marshall made up by finding (creating?) an early loophole in the wording of the Constitution. After all, politics was still politics back then.