A Great Waterfall of Souls

 

A Great Waterfall of Souls

“Personhood” bills are pending in six state legislatures, and since Dobbs v. Jackson Women's Health has emboldened “pro-life” forces more such bills will probably be introduced in red state legislatures.  It is said that the Oklahoma bill has a good chance of becoming law soon.  A personhood law defines a human zygote (fertilized ovum) as a person for all legal purposes.

By the time a zygote gets into the uterus it will ordinarily have divided about 12 times and become a blastocyst, a sphere one to two tenths of a millimeter (about the thickness of a sheet of paper) in diameter.  A blastocyst that is going to engender a normal pregnancy must attach itself to the lining of the uterus in such a way as to make it possible for a functioning placenta, which will hold the growing embryo in place and give it access to the mother’s bloodstream, to develop.  Such attachment is referred to as the “implantation” of the blastocyst.  If it fails to implant, it sails on through the uterus and continues hopefully dividing until a hostile environment kills it.  About half of all blastocysts fail to implant and are excreted in the urine.

That means that in the U.S. more than 10,000 zygotes/blastocysts miss their chance of implantation each day.  Under a personhood law, every one is a person with all the same rights as any living person.  According to “pro-life” rhetoric, American mothers are murdering their babies by callously flushing them down the toilet at the rate of 10,000 precious babies a day!

Even if it has no chance of surviving to become a live baby (in the usual sense, i.e., something that looks and metabolizes like a human born alive), the living zygote/blastocyst is still a person whose life is as precious, and as protected by law, as that of any other.  Is the mother guilty of child abuse if she doesn’t hold her urine as long as possible, then urinate into a jar and immediately call 911?  Fishing the "baby" out and putting it into a normal saline solution at body temperature will surely prolong its life, and who knows when progress in in vitro gestation might make it possible for the pinhead-sized person to turn itself into a bouncing bundle of joy?

The (predominant) religious portion of pro-lifers should be considering the question: “What is the eternal fate of the 10,000 blastocyst-persons dying every day?”  Some of the major denominations have a clear doctrine on the afterlives of unbaptized infants but some do not.  The most strident pro-lifers are mostly from "independent" evangelical factions that have never officially considered any such abstruse question.  By and large they don’t accept infant baptism anyway, but for other groups serious questions arise: Isn’t baptizing one of these babies before it dies the greatest possible act of spiritual charity?  If the baptizand is already by necessity immersed in water, need the baptizer do anything more in the way of splashing or immersing, and if so, how?  For the sacrament to be valid, must the baptizer be able to sense the presence of the baptizand?  Should a sexually active woman, whenever she tinkles, pronounce conditional baptism over the toilet before she flushes?  (For traditional Roman Catholics, how many years’ indulgence does she earn each time she does so?)

Of course similar questions present themselves to anyone who claims “Life begins at the moment of conception” (by which they mean the life of a human person begins at that moment) whether or not they have the reinforcement of a personhood law.  And of course no answers to any of these questions will be forthcoming from that quarter.

Many-Kettle Winter

 

I.                    Many-Kettle Winter

In 1978 I went with my mother to an Indian arts and history event being held in Tempe, Arizona.  I found what was being sold as a Sioux winter count.  One of the earlier scenes depicted a few lodges around a space with four or five little black kettles with handles floating in air.  Four or five scenes further on there were unhappy Indians lying around with spots on them.  Much further on, toward the last scene, blue-coated soldiers were firing rifles.  I thought the object just a little out of my price range but on the way home started having non-buyer’s remorse.  Mother said if I really wanted to buy it she would make me as small loan, so we turned around and headed back to Tempe.  But as we got back to the river even the old Tempe Bridge was closed.  (The new bridge on the National Interstate and Defense Highway had started to collapse the preceding night.)  The worst surge from heavy rains on the Salt watershed had reached the Valley just behind us.  For the moment the state was split in two, at least as far as ground transportation was concerned.

For me as a collector it might have been just as well.  I was not equipped to judge the authenticity of such an artifact, and it could very well have been a fake.  If so it was a charmingly produced fake.  In retrospect I wonder if the scenes I noticed and have described don’t make it suspiciously Eurocentric.

However, that early depiction of a many-kettle winter is a very striking image.  European trade goods arrived on the Atlantic coast of North America at the beginning of the 17^th century, but the volume of trade picked up significantly after the French and Indian War.  Bartering tribe to tribe, how long before metal knives and cooking vessels made it west of the Great Lakes?  How many more seasons before such an object was less than a treasured rarity? What a certain presage of doom were the domestic conveniences whose sudden abundance impressed the counter-of-winters!  And how impossible for even the most intelligent of Sioux to interpret rightly.

When worlds collide one world is likely to be heavier than the other.

II.                  Heraclitus at Bay

It was a very great sage who observed that War is father of all and king of all.  Economy of expression more than excuses his personification of a sociological phenomenon or rather, an anthropological fact.  He meant that the society that doesn’t win its wars is superseded by the one that does and therefore the requirements of victory in war take precedence over all other social needs. This is a simple fact and will be, so long as there are two or more sovereigns on earth.

Capitalism began to convince itself that war is too bad for business – or what is the same thing, too economically destructive – to be tolerated.  Thinkers were solemnly announcing that technological advances had rendered war unthinkable long before Leo Szilard had his brainstorm.  But in fact it was war that was tolerating capitalism and not vice versa.  Hiroshima gave a huge boost to unthinkability, ushering in an interregnum during which not-quite-war was not quite father or king of all.

III.               Probabilities

I consider it highly likely that:  (1.) If Ukraine continues to beat Russia Putin’s regime is doomed.  (2.) Putin either knows this now or will soon recognize it. (3.) Putin also knows that he must either remain in control or suffer the fate of Gaddafi and Mussolini. (4.) Putin is a cowardly narcissist who would do anything to anyone to avoid that fate. (5.) Russia has thousands of tactical nuclear weapons and plenty of means to deliver them within a range of 600 kilometers or so.  I infer from these propositions that (6.) if Ukraine continues to beat Russia, Putin will order the use of tactical nuclear weapons against Ukrainian forces in Ukraine. He will do so with a smirk that says to the world, "What're you gonna do about it?" And the "Make Russia great again" Russians will admire his "strength" all the more.

It is possible that the Russian generals will refuse the order and use it as the occasion for Putin’s arrest and execution.  This is unlikely if only because Putin is much cleverer and more ruthless than his generals.

Perhaps there is a chance they could convince him that the use of tactical nuclear weapons would not be of sufficient military effectiveness to counter the negative effects of the international political backlash, but this too is unlikely.  The hypothesis is that Ukraine is continuing to beat Russia.  Russian generals arguing against employing bigger Russian guns are not likely to be heard.  Besides, Putin tends to believe in the effectiveness of his own propaganda, and his line will be “See what the decadent West has driven us to?”  Tucker Carlson will back him up, even if Donald Trump is too confused to do so.

IV.               The Unthunk-About

The risk of escalation posed by any military response will be enough to deter the Biden Administration, and as usual the U.S. will keep Europe in check.

A global economic panic is predictable, and might be as attractive to Putin as any effects on Ukraine.  His coterie will be tempted to short the S&P 500, and this might provide the best early warning.

For a few days the international chorus of cluck-clucking will be deafening.  There will be talk of stricter sanctions, but the ability and willingness to take part in any greater economic pain will be limited.  There will be a lot of talk about not letting Putin profit from the use of nuclear weapons but it is not clear to me who will make him pay, or how.

Longer term the world will recognize that it has been living in denial for the last three-quarters of a century – which may be remembered as an improbable halcyon period.

V.                 Maybe Not?

The hypothesis of the foregoing discussion was that Ukraine continues to beat Russia.  Given genuine enthusiasm on the part of NATO countries for supplying Ukraine with heavier and more modern weapons (were it unbridled by sub rosa American reticence) this seems likely.  However, Obama-Biden never really had a problem with a great-power “spheres-of-influence” deal.  The problem has been that Putin is far too many for them; also that unlike good old Uncle Joe, he cannot be trusted to keep to a deal.

Washington is still the center of the universe even though 20^th century bipartisanship is truly dead.  The Republicans no longer care about (former or soon-to-be) Captive Nations or repressed Russians but would dearly love to deepen Biden’s embarrassment.  The Administration realizes it must appear to be eager to support Ukrainian resistance but would be delighted if Little Russia were simply swallowed into the earth overnight.

The situation is challenging for those who profess belief in a secret all-powerful world-ruling cabal, which if it existed would surely be clamping down on a conflict that threatens to normalize the use of nuclear weapons.  One need not imagine a round-table of international Jewish financiers, though.  Presumably Putin needs practically nothing to support a victory proclamation по русски.  He ought to jump at Donbas + Crimea + an end to sanctions + some other economic sweeteners – unless he really is crazy.  He may be, however, and even if he’s not the question would remain whether a Biden White House worried about the mid-terms can bring Zelenskyy to heel.

In short even though powerful interests are vitally interested in avoiding it, within months we may see what Putin is capable of when he feels he’s backed into a corner.  I think that easily includes the use of tactical nukes, and that if it does our world will change – and not for the better.

The Defense of Old Main

 

In the fall of 1968, during Freshman Orientation at Claremont Men’s College (for so it was still called, then), Rob B. and I noticed a commotion at the table of a campus organization.  Some young men in uniform were being hassled by a crowd of students.  It was soon apparent that this was the ROTC table, besieged by an impromptu antiwar protest.  Immediately we sidled to the front of the crowd, conspicuously greeted the students manning the table and loudly announced our interest in signing up.

Easily the most unattractive feature of prevailing student attitudes was the hostility manifested toward those who had served, were serving or even seemed to be contemplating serving in the armed forces.  The root of this antipathy was a sense of guilt, of course, though I’m not sure this was apparent to me at seventeen.  It was my (and Rob’s) first encounter with this phenomenon, and I’m glad our spontaneous reaction was to demonstrate solidarity with the beleaguered cadets.  For Rob it was purely a political gesture, of course.  He knew that, with his nystagmus, he couldn’t get into the military if he tried.  For myself, I hadn’t until that moment begun to think seriously about the draft.  That both the war and the student deferment would continue indefinitely wouldn’t have seemed likely to me, and I would not then have formulated the strategy of staying in college or grad school for the duration.  I did have a vague sense that a commission might be the ticket to a less undesirable posting, as well as a sense that being in ROTC would be a defense against shirker’s guilt.

Anyway, Rob and I signed up for ROTC on the spot, to the jeers of long-haired men from Pomona and short-haired Scripps women in sweatshirts (these schools, together with Harvey Mudd, Pitzer and CMC constituting the “Claremont Colleges”).  Later in that academic year, the science and math departments at Pomona were targeted as tools of the military-industrial complex.  After some picketing a mail-bomb exploded, taking off the right hand of a secretary in the math department.  My parents’ marginal enthusiasm for keeping me at Claremont, a significant financial strain on them (despite the $300 per semester stipend of my National Merit Scholarship), evaporated.  For Rob, the terminal prognosis of his mother’s cancer imposed a compelling reason to stay at home for the next school year.

And so we became sophomore ROTC cadets at Arizona State University.  The way ROTC works (or did then) is: the first two years you’re just a student taking introductory courses in the Military Science department; junior and senior years you are enlisted in the reserves and as such become subject to military discipline.  The pace of campus protests was picking up during the ’69-’70 academic year.  I think it was late in the fall semester that a crowd marched on the big campus flagpole, intent on hauling down the stars and stripes.  Whether they had a Tonkinese or Viet Cong standard ready to hoist I’m not sure.  Rob did yeoman’s service, rapidly recruiting a pick-up band of music professors to ring the flagpole to reinforce the two or three maintenance men who had been defending the spot, and to play the national anthem plus some other tunes (including “Stars and Stripes Forever” – how fortunate there was a piccolo-player among them!).  The crowd soon moved on.

Early in spring semester ROTC was targeted nationwide.  Departments were taken over, and two or three ROTC buildings were burned to the ground, though I’m not sure whether the burnings had yet happened at the time of the incident I’m about to relate.  At ASU on this day word got around campus that something was going to happen involving ROTC.  I hurried to the department, and on the way in I was not surprised to meet Rob.

The Department of Military Science (vulgo ROTC) occupied the main or second floor of Old Main, built in the 1890s to house the Territorial Normal School, the height of Central Arizona’s pride (below the Territorial Capitol but above the Insane Asylum, that is).  The main floor, fifteen or twenty feet above ground level, is approached by a big stone staircase on the east end of the building that is flanked by rooms then devoted to faculty and administrative offices.  Rob and I entered a disconsolate space.

Typical of the McNamara Defense Department, CONARC had issued strict orders: there was to be no trace of resistance.  Cadets and instructors (serving officers) were to leave and stay away from the premises, without locking them or making any attempt to secure their contents.  Departing personnel could quietly take their personal belongings, but otherwise everything was to be left exactly as-is.  The officers, conditioned to obey orders or used to this kind of idiocy, simply related the orders and packed their briefcases.  Some of the senior cadets murmured, but they, too, were bound to obey.

A senior cadet arrived, reported that a large crowd had assembled on the main mall listening to speeches about the evils of ROTC, and left.  We watched Capt. Medina – whose decoration with the Bronze Star the corps had recently witnessed at a special weekend drill – and a couple of gung-ho seniors descend the steps together, go north and turn the corner; but Rob and I were just university students enrolled in MS 202.  Alone in Old Main, we were as free to ignore Pentagon commands as any commie-hippie peace-creep.

Not long before we had heard Maj. Buckley’s lecture on ruses de guerre.  One of his historical examples was strikingly reminiscent of our present situation, and it took little more than an exchange of conspiratorial grins to concert our plan of action.  Plenty of materiel was at hand. With a hat-stand as armature, an officer’s overcoat on a hanger, a bent manila folder, mirrored sunglasses and peaked cap made a passable dummy.  Positioned a few feet back from the entrance doors it would suggest a senior, supervisorial presence.  Probably best to shift it around every once in a while.  The room serving as HQ to our “Desert Ranger” seniors yielded camo items of various kinds which we laid out to facilitate quick changes of costume.

We had barely begun such preparations when a tightly-spaced crowd of two to three hundred was observed moving along the adjacent mall toward our position.  I found a short-sleeved blouse and garrison cap for my principal role, that of junior spotter-at-the-doors.  Because of his coloring and stature we decided Rob should be more covered-up and hang back further, possibly suggesting another officer’s presence.

The leftists formed up at the foot of the stairs.  As I was conspicuously watching I had plenty of opportunity to observe the small gaggle in the front.  With walkie-talkie and bullhorn, they were clearly in command.  When they halted the whole crowd stood still.

I had been pretending to report back over my shoulder, but as it was apparent the crowd-commander was communicating with somebody by radio, I decided to imitate him.  I forget now what box-like object of suitable size I found, but I grabbed it and acted like I was reporting observations into it.  Soon I turned smartly and walked away from the door as if ordered to report to someone, then put on a camo jacket and helmet (those Desert Ranger guys were really gung-ho) and returned to a slightly different position.  Rob was near the window in the administrative office space, putting on a performance of his own.  I returned to my spotter-at-the-door role.  The crowd, at first stock-still and silent, had begun to look restless and ragged around the edges, and there was obvious consternation in the commanding clique.  The guy with the walkie-talkie looked for all the world like a front-line junior officer trying to convince his senior that the intel of an undefended enemy position was faulty.  After a few exchanges on the walkie-talkie he barked something at his companion who held the bullhorn.  A different destination was announced. The crowd of spontaneous demonstrators did an about-face and withdrew from the Old Main objective, showing as much discipline as, an hour earlier, the armed forces of the United States had when they abandoned the position.

When we were sure the leftists had gone Rob and I deposited our costumes and props at the foot of the hat-rack dummy, hoping the Army would guess how the post had been held, and left the building truly deserted.  To us it was just a lark.*  The only real effort for me was maintaining a suitably grim expression during my act.  I had no doubt that if a large number of protesters came into the building – which I fully expected to happen – I could simply slip away through the crowd.  It didn’t occur to me until later that Rob might have had more trouble being inconspicuous.

*   I don’t recall the name of the colonel who was our C.O.  Whoever he was, in light of knowledge acquired much later I have wondered whether our escapade might have blasted his hope (if he had any left) of retiring as a general officer.  The ROTC takeover at ASU didn’t proceed as many another did that week.  If word got back to Washington (remember, the CIA was still subsidizing SDS in those days) the excuses that unauthorized resistance had been offered only by persons not technically under his command and that the “resistance” was only a bit of make-believe would have availed the colonel nothing.  This consideration was many miles off my radar then, and probably would not have made any difference to me if it had occurred to me.  To Rob, however, it likely would have made a great difference.

A Mystery to Me

 

Why has Congress not given slain Capitol Police Officer Brian Sicknik a state funeral, culminating in interment at Arlington National Cemetery?  An enormous cortege, consisting of unit after unit and band after funeral march-playing band, winding slowly past the White House – what a great way to give Donald Trump the parade he always craved and make an unanswerable political statement at the same time!

Why are Democrats insisting on another impeachment of Trump “to demonstrate that a President can’t get away with inciting insurrection in an attempt to keep Congress from performing one of its Constitutional duties” when they know it would likely only result in another Senate acquittal –thus ending up by establishing that a President can do exactly that and get away with it?

Why do they persist in this effort even though the President-elect they have installed at such great effort and expense has signaled it’s not his preference?  Why so ready to refuse to be led, now that they have a clear leader?

I’m afraid the answer is that the Democratic Party is lacking in political imagination, savoir-faire and, worst, instinct.  Their sense of political theater is desperately deficient.  Maybe it has been since Adlai Stevenson.  How can this be, with the vast preponderance of creative artists on their side?

Don’t know. It’s a mystery to me.

Another Great Work of the Indefatigable BKS

 

Here’s a link to a compilation of everything filed in my still-pending case challenging Gov. Ducey’s eviction ban, Gregory Real Estate and Management, LLC v. Keegan.  The first appellate decision should be handed down in a month or two.  Important questions of Arizona constitutional law are involved, even though as a practical matter these gubernatorial orders have been superseded by the CDC’s federal moratorium (itself due to expire in another three weeks) –

Gregory R.E. and Management, LLC v Keegan

Trump's Attempted Coup

 

On November 22, 2020, I wrote in a blog post here:

  There is the possibility that Trump is not just deeply neurotic but either has long been or has recently become psychotic.  In that event, his egomaniacal delusion could well lead him to summon violent resistance to his removal.  While such resistance would have very little chance of being successful, however unsuccessful it might be it would have enormously detrimental effects on America’s economy, institutions and prestige.  But I think it’s more likely that Trump will be dissuaded from taking such a risk.

About the same time I wrote elsewhere (in a comment on a Youtube post):

He [Trump] is desperate to avoid prosecution and incarceration, the former inevitable and the latter highly likely if and when he ceases to be President.  Therefore, he will do whatever he dares to do in order to retain the Presidency.  Fortunately he’s not very daring, but unfortunately he doesn’t understand the system well enough to know what’s possible and what’s not possible.

The first of these quoted comments of mine was partly wrong.  Trump is psychotic but was not dissuaded from summoning violent resistance to his removal.  The second was spot on.  Trump was safe in the White House during the fighting on Capitol Hill, and even though his minions succeeded in stalling the counting of electoral votes for a time there was never a chance the outcome would be a second term for Trump.  In November I failed to focus on the exact form of violent resistance Trump would summon.  I underestimated Trump’s cowardice, his lack of understanding of the U.S. military and the depth of his followers’ delusion, ignorance and depravity.

Whatever secret overtures were made to the Pentagon on his behalf, the senior officers made their unwillingness to cooperate clear in a series of statements culminating in December, followed at the beginning of January by all the living former Secretaries of Defense.  We may not know for years exactly what sort of back-channel suggestions prompted the generals’ and Secretaries’ statements, but Trump had another arrow in his quiver.

Trump did summon violent resistance.  He thought his ranting, bloodthirsty fans could stop Congress from completing the final formal step of the 2020 Presidential election – and they did, for about four hours.  His agent and unsuccessful lawyer, having failed to win any judicial trial for his master, told the large and unruly crowd (expressly summoned to DC by Trump for a day that he promised would “be wild”) that their cause now depended on “trial by combat.”  Then Trump instructed them to march on the Capitol, where he knew Congress was sitting to count the electoral votes and certify the winner.  He repeated his claim that the election had been “rigged,” urged his supporters to be strong, told them “we’ll never take our country back by being weak,” and promised to march with them.

There is no way the tumult Trump set in motion could have advanced his cause unless the mob succeeded in keeping Congress from fulfilling its Constitutional responsibility.  The mob did exactly that for several hours and with a little more coherent planning and leadership it could well have slaughtered Congressional leaders and dispersed the Congress itself.  Perhaps Trump’s plan was to invoke the Insurrection Act at that point, ostensibly to enable Congress to reconvene but actually (with the connivance of his recent political appointees to the DOD, who may have been responsible for keeping the National Guard out of DC during the coup attempt) to prevent it.  That none of this would have extended his term of office is far too subtle a point for Trump to worry about in his desperation.  If he could prevent the completion of the final step of the election then something else might turn up.  Such is the reasoning of desperation.  And that Congress would evade his minions and reconvene, in Silver Spring or Philadelphia, was beyond his political imagination.

Nothing exemplifies Trump’s character better than his egging the mob on and promising to march along with them, then scuttling right back to 1600 Pennsylvania Ave. to watch events unfold on TV.  He summoned and stirred up his forces and sent them to fight for him while staying in a safe place and maintaining “deniability” – albeit of a scarcely plausible kind.  “Why, goodness me, I never dreamed those folks would do anything the least bit violent,” he will be heard to whine for all the years he lives.  Alternately he will insist that they were “good people” and legitimately aggrieved, but if any of the rebels* is counting on receiving a pardon he will be sadly disappointed.

At his rallies Trump used to urge his followers to rough dissidents up and promise to pay for their defense if they were prosecuted as a result.  But when one was arrested and charged with assault, he got not a penny for his legal expenses nor even a letter of sympathy from Trump.  Trump will be saving the pardons for himself, his family and those who can do him a good turn – like tax-dodging billionaires, drug lords and other potentates of foreign countries.  In his mind, those who fought Congress for him but lost will be nothing but fools, losers and, worse, an embarrassment to him.

Trump also lacks sufficient political understanding to know that rebellion must either succeed and crown the rebels with prosperity or fail and bring them down in ruin.  He who dares to strike the king gambles all and must dare greatly.  In his cheating huckster fashion he simply reckons that he can deny involvement in the failed rebellion.  His last Presidential act will be to pardon himself (perhaps just slipping the sealed document into his coat pocket against a rainy day), but this will not prevent the searching investigation in which all the resources of the offended government will be deployed. [Post-scriptum: When I wrote this, Republican Congressional leaders were still denouncing the insurrection and blaming Trump for it.  As a Goldwater Republican I could not even imagine that soon nearly all of them would fall in to defend Trump in every dishonest way they could.]

*  And murderers.  From the 1890s encyclopedia my grandmother gave me, under Riot: “There must be at least three offending actors.  The wrongdoers must be engaged in some private purpose and not in any attempt to overthrow or subvert the government, which is treason. … No distinction is made between the relative degrees of violence on the part of the rioters [still less of insurrectionists]; all the participants are responsible for all that takes place.”

Mealy-Mouth Brnovich Saved by the Bell

 

I was going to file this Monday.  AG Brnovich doesn't know it, but he was saved by the bell.

Media reports list Arizona as one of the states entering the suit on the side of Texas, but that's not accurate. Arizona, through Brnovich, moved tor leave to file an amicus brief, but made it clear its brief would essentially say nothing. I don't know how many more of the "18 other states" made or proposed similar filings.

Of the two main reasons for the US Supreme Court to refuse to touch the case, Plaintiff Texas' lack of standing and non-justiciability under the political question doctrine, I believe the latter would have been the better choice.

No. 22 O 155

In The

Supreme Court of the United States

_________________

STATE OF TEXAS,

Plaintiff,

v.

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Defendants.

_________________

On Motion for Leave to File a Bill of Complaint and Motion for Injunctive Relief, etc.

MOTION FOR LEAVE TO FILE BRIEF
of Brian K. Stanley as Amicus Curiae

 

Motion for Leave to File Brief as Amicus Curiae

Pursuant to Supreme Court Rule 37.2(b), the attorney undersigned respectfully moves for leave to file the accompanying brief as amici curiae. Because of the emergency nature of this action, the proposed amicus has been unable to secure the consent of the parties.

This proposed amicus is an Arizona citizen who is embarrassed by the state’s Motion for Leave to File an Amicus Brief.  It is difficult to understand the motivation behind this mealy-mouthed, neither-for-nor-against doc­ument, unless it is to enable Attorney General Brnovich to tell a fractious and illiterate portion of the populace that he sure has joined in on that Texas “big show” lawsuit without incurring too much professional embarrassment.

Arizona says that its proposed brief would argue that (1.) “election integrity is of paramount importance” and (2.) “if this Court exercises jurisdiction over Texas’s complaint, it is equally important that the Court act quickly.”

“Argument” 1 is merely an unhelpful platitude.  Argument 2 also states an incontrovertible proposition while providing no direct assistance to the Court.  Arizona ought to have pursued this point further:  (A.) If the Court were to take jurisdiction of Texas’ proposed action, it would be critically important to the life of the Nation that such action be resolved very quickly.  (B.) Texas’ proposed action, if entertained by the Court, could not be resolved quickly.  Therefore (C.) It is critically important to the life of the Nation that the Court decline to take jurisdiction of Texas’ proposed action.

Arizona could make this argument without com­promising its traditional position that the Court’s original jurisdiction of actions between states is non-discretionary simply by recognizing that under the established “political question” doctrine Texas’ proposed complaint is non-justiciable ab initio.  The point is well made in Part II, pp. 12 – 16 of Georgia’s opposition memorandum.  Arizona would make a helpful contribution by simply joining in this part of Georgia’s opposition.

Arizona could go further and amplify the political question argument:

A controversy is nonjusticiable – i. e., involves a political question – where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it … .”

Baker v. Carr, 369 U. S. 186, 217 (1962).

Article II, § 1 of the Constitution and the XII^th Amendment demonstrate textually the commitment of Presidential elections to the state legislatures, the electoral college and Congress, each of which must be recognized, for Presidential election purposes, as a “coordinate political department.”  But now the second alter­native limb of the political question test is equally if not more important.  The lack of judicially discoverable and manage­able standards for resolving Texas’ proposed complaint would alone be sufficient reason for refusing to entertain it.  Even a cursory review of Texas’ lengthy and multifarious complaint will convince the reader with any experience of legal procedures that it is a roadmap for years or decades of litigation.

Some tortuous legal problems are presented, such as drawing a boundary between permissible administrative regulation and practice and impermissible executive revision of legislatively imposed requirements (as well as distinguishing between actions election administrators are required to perform and actions they are permitted to perform).  E.g., Proposed Complaint ¶¶ 62, 63.  While such questions were argued and briefed to, then decided by, a special master,[1] the master’s report considered by the Court and the Court’s opinion(s) drafted, who would have his finger on the nuclear launch button?

But the serious legal issues raised by the Proposed Complaint[2] are discernable and manageable through judicial child’s play compared with some of the potential fact issues.  Such abstruse expert questions as underlie Texas’ “quadrillion to one” statistical claim (¶ 10) would be bad enough.  But the really fact-intensive issues, such as whether exclusion of unsigned mail-in ballots would affect the outcome in Pennsylvania (¶¶ 41 – 46) or whether the “premature removal of ballots from their locked containers” in that state (¶51) affected any votes at all, are clearly unmanage­able within any realistic allocation of judicial resources or acceptable period of time.

Further, entertainment of Texas’ suit would invite countersuits by the states that president-elect Biden carried, who would naturally and rightly want recounts in other states to see if Trump would have won the states in his column if mail-in ballots were excluded.  Taking juris­diction of Texas’ complaint might not destroy the Nation, but it would certainly destroy the Court.

Arizona says it wants to argue that if the Court accepts jurisdiction it will be vitally important that it resolve the action quickly.  It ought to have looked more seriously at the Proposed Complaint and recognized that Texas’ complaint could not, within any tolerable period of time, be resolved in any judicially respectable fashion, and it should have drawn the conclusion that the established political question doctrine must be applied to rule this controversy non-justiciable.

December 14, 2020.        Respectfully submitted,

                                      /s/Brian K. Stanley
                                       Brian K. Stanley
                                      1938 E. Osborn Rd.
                                      Phoenix, Arizona 85016
                                      602-956-9201
                                      court@brianstanleylaw.com
                              

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[1].       The alternative to the usual referral-to and report-by special master procedure, i.e., original trial proceedings before a nine-judge court, is unthinkable.  Imagine votes, majority opinions, dissenting and concurring opinions, on every procedural motion and evidentiary objection.

[2].       Most of them are decidedly non-serious, such as the argument that state authorities violated election laws by informing the public about the option to apply for a mail-in ballot.  Proposed Complaint ¶¶ 81 and 82.