Tag Archives: John Roberts

It Already Stinks

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?Associate Justice Sonia Sotomayor, during oral arguments in Dobbs v. Jackson Women’s Health Organization, December 1, 2021.

Picture by Hilary Stone Ginsberg

Associate Justice Sonia Sotomayor posed this trenchant question during oral arguments over a Mississippi abortion law that may be the vehicle for the U.S. Supreme Court to overturn a nearly 50-year precedent guaranteeing a constitutional right to abortion.

The justice’s question is premised on the obvious fact that not much has changed since the 1973 landmark Roe v. Wade. There have been no vast scientific or medical advances regarding the procedure. No novel legal theories have emerged on whether the Constitution does or does not protect a woman’s right to choose. Public opinion has hardly shifted on the issue for the last 50 years. Only one thing has changed. The Supreme Court now has a majority of very conservative justices who are determined to restrict, at least severely, access to abortion if not overturn Roe outright.

Sotomayor rightly worries that a purely political decision on such a controversial issue as abortion endangers the existence of the high court. “If people actually believe that it’s all political, how will we survive?” she asked. “How will the court survive?” The concern over the politicization of the pending decision — expected next June or July — is buttressed, as Sotomayor pointed out, by the admission of the bill’s sponsors that they passed the law only because there are new, very conservative justices on the court.

The stability of public opinion on abortion is remarkable. Since 1975, the percentage of Americans who believe abortion should be legal in at least certain circumstances has hovered between 76 percent and 83 percent, while the percentage who would ban the procedure in all circumstances has remained consistently in the high teens. Not only would a high court decision allowing states to ban (or severely limit) abortion be a political decision, it would be a political decision that runs counter to the views of a large majority of Americans. 

The politicization of the court’s pending decision on abortion is magnified by the politicization of the court itself. There are a majority of conservatives on the court even though Democratic presidential candidates won the popular vote in seven of the last eight presidential elections. Two presidents who were in the office only because of the Electoral College nominated five of those justices. To put it bluntly: The Supreme Court is dominated by conservative jurists appointed by presidents elected by a minority of voters. 

And, then there are the machinations of Republican Senate leader Mitch McConnell who — in a display of brazen political power lacking either constitutional or historical justification — manipulated senatorial rules to prevent President Barack Obama from appointing a successor to Associate Justice Antonin Scalia. McConnell’s flimsy rationale: Scalia died in the last year of Obama’s term in office. When Associate Justice Ruth Bader Ginsburg died less than two months before the 2020 election, McConnell tossed his new standard out the window so he could rush the confirmation of Amy Coney Barrett before the electionthans. 

Barrett, perhaps sensitive to the political nature of her appointment, gave a recent speech in which she claimed, “This court is not comprised of political hacks.” She added, “Judicial philosophies are not the same as political parties.” I might give more credence to Barrett’s words had she uttered them some place other than the University of Louisville’s McConnell Center. Yep, that McConnell, the senator who strong-armed her appointment to the Supreme Court!

Overturning Roe, which appears likely based on the questions the justices asked Wednesday, will be the capstone to a alarming number of political decisions made by the Supreme Court in the last two decades. Bush v. Gore was premised on legal arguments, as one academic phrased it, that “would further the election of the Republican candidate, George W. Bush.” Citizens United reversed century-old campaign restrictions previously upheld by the courts, again an instance of the only thing that changed was the makeup of the court itself. The same can be said of the high court’s ruling in 2013 in Shelby County v. Holder which gutted the Voting Rights Act of 1965.

Chief Justice John Roberts wrote the majority opinion in Shelby County, and while he is often viewed as an institutionalist who believes the court should tread carefully and incrementally, he is a longtime antagonist of the 1965 voting law. So, in a signal of the political brazenness of the current conservative majority, the Roberts-led court eviscerated another section of that law in Brnovich v. Democratic National Committeedecided last Junefurther tipping the electoral scales in favor of the Republican Party by allowing states to deny whole groups of Democratic-leaning voters access to the ballot. 

In addition to the pending abortion decision, the Supreme Court is slated in the current term to hear highly political cases involving the right to carry concealed weapons outside the home, the fate of affirmative action, and a religious case that could erode the separation of church and state. As the recent past indicates, and the possible future may buttress, the conservative majority on the Supreme Court issues political decisions frequently.

Unfortunately, Justice Sotomayor, there is already a stench issuing from the Supreme Court. The likely overturning of Roe is a political act, but the high court already stinks because of its numerous political acts — and the politicization of its makeup — over the last few decades.

Posted December 3, 2021

  

Supremely Undemocratic

Picture by Hilary Stone Ginsberg

I just read a most frightening book: The Agenda: How a Republican Supreme Court is Reshaping America, by Ian Millhiser, a senior correspondent for Vox. Frightening because the Supreme Court, unelected and not answerable to the public due to the life tenure of judges, is reshaping American politics and society in an undemocratic direction not favored by a majority of voters.

The Supreme Court’s recent activism fills a void left by partisan gridlock in Washington. Congress has passed little substantial legislation in the last decade. This may be changing with Democrats in control of Congress and the presidency, but unless Democrats are willing to eliminate the filibuster in the Senate, President Joe Biden’s ambitious plans probably will come to naught. Besides, the rightwing tilt of the nation’s high court may well result in the Supreme Court overturning much of whatever legislation Democrats succeed in passing.

While Congress dithered, a conservative Supreme Court was busy, dismantling campaign finance laws, eroding voter protection legislation, weakening Obamacare, undermining the separation of church and state, removing safeguards against sexual and racial harassment, diminishing rules shielding the environment from polluters, and granting employers increased power over hours, wages, and the safety of workers.  Conservatives once decried “judicial activism,” but now that Republicans represent a minority of the nation, the courts have become the last bastion of conservative ideology. Republicans under GOP Senate leader Mitch McConnell have been ruthless in insuring Republican domination of the nation’s courts. 

The reshaping of American law by the Supreme Court under Chief Justice John Roberts will continue in the term starting this October, with the high court poised to overturn abortion protections and end affirmative action in higher education. In addition, the court will hear a lawsuit backed by the National Rifle Association that asserts the constitutional right to carry a weapon outside the home. The case challenges a century-old New York law that requires citizens demonstrate a legitimate self-defense need in order to obtain a permit to carry a concealed weapon. 

All this is being done by an undemocratic branch of the United States government. The Supreme Court has always been far removed from popular will. The justices, appointed by the president and confirmed by the Senate, hold lifetime jobs and short of some egregious actions warranting impeachment and conviction, they cannot be removed from office. 

Millhiser describes how the Supreme Court has eviscerated voting rights protections in the last decade and predicts further encroachment on equal access to the ballot. He notes that the Supreme Court can weaken democracy because the American constitutional system is, itself, not democratic since not all votes are equal. Donald Trump was elected president in 2016 even though his opponent received three million more votes. While the numbers fluctuate with each election, Republican senators represent 40 million or so fewer people than Democratic senators because conservative red states like Wyoming have the same number of senators as liberal blue state California, even though the latter has a population nearly 70 times greater.

To put it starkly, the last three justices confirmed to the court — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were appointed by a president who lost the popular vote and confirmed by senators who represent less than half the country. These three justices — all relatively young — have tipped a conservative-leaning court to the far right. The result: An undemocratic cohort of justices is weakening American democracy. 

Much ink has been spilled describing the judicial attack on voting rights. But, as noted above, it is not the only area in which the Roberts-led Supreme Court is removing democratic protections. Of particular note is the attack by the court — led by Neil Gorsuch — on what is often referred to as the “administrative state.”

Governing a modern industrial and technological society is complex. Members of Congress cannot and do not know all the details required in, say, protecting the environment or regulating businesses. All Congress can do — and should do — is pass the broad outlines of policy, such as establishing the limits of permissible carbon emissions into the environment. When Congress acts in such a manner, it considers the best technology available at the time the law is enacted. But, technology changes, so to keep up with these changes, Congress routinely delegates to the various departments and agencies of the executive branch the power to establish rules. And, these departments and agencies may change the rules as needed given technological improvements and societal needs. 

Until recently, the Supreme Court has ruled in a number of cases that it is best to allow the executive agencies to flesh out ambiguities in law and to write rules to enforce congressionally passed laws. Gorsuch disagrees, arguing that it is better to give judges, who he says are “independent” of popular whim, this power. Gorsuch would place the rule-writing power, as Millhiser writes, “in the hands of the closest thing the United States has to a medieval nobility — unelected judges who serve for life.”

Gorsuch argues that judges — unlike federal regulators who are answerable to an elected president — are above politics. The justice conveniently forgets that he has his current job because Senate Republicans used raw political power to keep President Barack Obama’s appointee — Merrick Garland — off the bench to put instead a conservative — Gorsuch — on it. Republican Senators knew full well that a Republican judge like Gorsuch is far more likely to issue a conservative judicial decision than a Democratic judge.

Millhiser avoids discussing the remedies for curbing the undemocratic tendencies of an undemocratic institution bent on abrogating democratic rights, but his book provides fodder for calls in recent years to reform the court. Among the suggestions for change are increasing the number of justices (“court-packing”), limiting the tenure of justices, allowing every president to appoint two new justices, and creating a system to select justices on a bipartisan basis.

Whatever the remedy or remedies, the need to act is urgent to insure the continuation of American democracy, which is threatened by the conservative justices who dominate the Supreme Court.

Posted August 31, 2021

2045 and the Court

Remember the year 2045 when trying to understand what is at stake in the battle over who should appoint the next Supreme Court justice. 

That is the year — according to the Census Bureau — when the United States will become a majority-minority nation. Not only will White people no longer be a majority, but fifteen years later — in 2060 — the number of Hispanic children will equal the number of White ones. By then, the Republican Party will either cease to exist or be a remnant no longer able to contest national elections. Even today, the GOP clings to power only because the Electoral College allows Republicans to overcome losing the popular vote in presidential elections, the Senate favors small rural states, and gerrymandering provides additional conservative seats in the House.

Seen against this demographic backdrop, the Republican determination to ram through Justice Ruth Bader Ginsburg’s replacement is a fight to preserve control of the one institution not directly answerable to the popular will. If Republicans can name the next justice and if that justice is young enough, the GOP can cement control of the Court for decades, despite losing control of the country. A strongly conservative Court could erase healthcare for millions, block effective measures to fight climate change, challenge the presence of immigrants in America, preserve income inequality, eviscerate minority rights, overturn progress in gender equality, strip women of their right to choose, and attempt to enshrine conservative Christian values in a nation becoming less religious.

Power is at the center of what amounts to a Republican coup d’etat against the future. Republican legislators tried to claim the moral high ground in 2016, asserting a seemingly convincing, if fraudulent, principle that the people should decide who should appoint a replacement for Justice Antonin Scalia. Their invented rule ignored the inconvenient fact that the people had decided when reelecting President Barack Obama. Principle was never involved, only power as attested to by the naked power play of opposing Obama’s replacement for a justice who died in February of 2016 while accepting President Donald Trump’s replacement for one who died in September of an election year. 

Senate Majority Leader Mitch McConnell and the rest of the Republican caucus who go long with this power grab are certainly hypocrites. But, to accuse them of hypocrisy is beside the point. McConnell and the others have no shame, so accusations of hypocrisy roll off them easily. For them, hypocrisy is not a character flaw; it is just another tool by which they cling to power, along with voter suppression, gerrymandered districts, and inventing rules that apply only to Democrats — such as not holding a confirmation vote on a judicial nominee in an election year.

Violating the popular will comes naturally to Republicans. If they succeed in naming Ginsburg’s replacement, it will mean that more than half of the justices will have been appointed by presidents who did not win the popular vote. These five justices — John Roberts, Samuel Alioto, Neil Gorsuch, Brett Kavanaugh, and Trump’s latest appointee — will sit on the Supreme Court as justices selected by presidents in the White House only by the grace of the Electoral College and approved by a Senate in which 70 percent of the members represent only 30 percent of the population and in which, as Ezra Klein points out, a voter in Wyoming has 66 times as much power as a voter in California.

What can Democrats do? Speaker Nancy Pelosi says Democrats “have our options. We have arrows in our quiver,” but she ruled out leveraging a government shut down as a weapon to derail Republicans from voting on a court nominee. Certainly, Democrats have to organize and get out the vote, and they should make clear what they intend to do if they win control of the presidency and both chambers of Congress in November. Admission of Puerto Rico and the District of Columbia as states would give Democrats four more senators, further pushing the GOP into the minority. Republicans will accuse Democrats of a power grab, but both Puerto Rico and the District deserve statehood. It is the right thing to do, regardless of the court fight, and only Republican intransigence has stood in the way of what should have been done long ago.

Similarly, the time is long overdue to eliminate the filibuster in the Senate. The filibuster if a relic of a racist past when segregationists used it to frustrate civil rights legislation. Now, it survives only to frustrate the rights of the majority. Also, a constitutional amendment must be introduced to abolish the Electoral College, which was written into the Constitution because the Framers distrusted the will of the people and southerners wanted bloated influence in presidential elections to preserve slavery. 

Another popular suggestion is for Democrats to retaliate by adding two justices to the Supreme Court as replacements for the two seats stolen by Republicans. The size of the Court is not fixed by constitutional mandate, and the number of justices varied until 1869 when Congress designated the number at nine. Court-packing has an odious reputation, but a valid case can be made for its justification in this instance. Senator Ted Cruz of Texas, and other conservatives, will scream about the sacredness of nine on the Court. Cruz will forget that he is on record declaring that if Hillary Clinton had won in 2016 the Republican-controlled Senate should not replace Scalia and let the number of justices remain at eight. But, then again, hypocrisy has no meaning for the shameless.

Still, adding justices should be carefully considered because it might unleash a cycle of retaliatory acts that would undermine the legitimacy of the Supreme Court. The nation’s high Court functions because it is considered above politics and nearly all Americans accept even those decisions with which they disagree. Court-packing threatens to make the Supreme Court into just another political institution subject to the vitriolic partisan divide that rules America today.

McConnell has been notably silent on the timing of a vote for Trump’s nominee. The Kentuckian — involved in a tough race for reelection — may want to hold hearings on a nominee before the election and schedule a vote for after the November 3 to spare Republican senators in close races from having to go on record voting for an ultra-conservative to the bench. But, McConnell would not hesitate to have a lame duck Senate hold a confirmation vote.

Either way, McConnell is determined to put another conservative on the Supreme Court, the only institution the Republicans can hope to control as they shrink into a minority in a nation becoming less White.  

Posted September 22, 2020

My Dream

When the Chief Justice walked in, you could feel the weight of the moment. I saw members on both sides of the aisle visibly gulp. The weight of history sits on shoulders and produces sometimes results, you never know what will happen. Remarks by Senate Minority Leader Chuck Schumer after the opening day of the impeachment trial of President Donald Trump.

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The New York Democrat may be right: “You never know what will happen.” If enough Republicans (as few as three, depending on Chief Justice John Roberts’ vote in a tie) side with Democrats, witnesses will appear at the trial. Former National Security Adviser John Bolton’s potential testimony about what he termed the “drug deal” to force Ukraine to investigate former Vice President Joe Biden would place further pressure on vulnerable Republican senators who are currently likely to acquit the president. The testimony of other possible witnesses could yield such an overwhelming mountain of evidence that even South Carolina Republican Lindsey Graham might have difficulty remaining Trump’s most subservient lapdog. And, then, there are the documents which could further incriminate the president.

This scenario — a dream, really — is, of course, hypothetical. As of now, Republicans are poised to find Trump not guilty, even though the evidence gathered by the House during its impeachment inquiry conclusively demonstrates that Trump’s offenses warrant his removal from office. This raises a troubling question about  the oath Chief Justice John Roberts administered to all the senators, which was the first order of business in the Senate trial. Every senator present raised his or her right hand and heard Roberts ask, “Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?” Then, the senators walked to the front of the chamber and signed their names in the oath book.

Here is the question: How did the vast majority of Republicans who have decided the president did nothing wrong — many publicly stating so — take a solemn oath to administer “impartial justice”? How did Senate Majority Leader Mitch McConnell — pictured here signing the oath book — so swear, given his earlier statement about the trial: “I’m not impartial about this at all”? If McConnell already has decreed he is not “impartial,” how can he swear to do “impartial justice”? How does Graham swear the oath after saying, “I have clearly made up my mind. I’m not trying to hide the fact that I have disdain for the accusations and the process…. I’m not trying to be a fair juror here.” How did that work for McConnell and Graham and the rest of the sycophantic Republican caucus? Did they cross their fingers on their left hands behind their backs while holding their right aloft? Too bad there is not a camera angle from the back of the chamber.

There is much that is dispiriting about Trump’s presidency. American democracy has been damaged — perhaps beyond repair — by his undermining of the Constitution and the rule of law. The American public’s sense of decency and fair play may have been corroded substantively, as well, and civil discourse may never recover from Trump’s bullying and mockery of his opponents. But, perhaps, most depressing of all is the collaboration of Republican lawmakers in the diminution of their authority and independence. 

Of course, the rise of the imperial presidency did not begin with Trump. Since the middle of the last century, power has flowed to the president, resulting in the exaltation of the executive branch and the diminution of the legislative branch. Congress has sat idly by — sometimes actively cooperated — while it has lost the last vestiges of control over war making and foreign policy. Even in the domestic arena, the penchant of recent presidents to issue executive orders has led to a loss of congressional influence. The willingness of current Republicans in Congress to look the other way when the president impounded funds for Ukraine that the legislature had authorized indicates a willingness among Republicans in the House and Senate to surrender the ultimate source of congressional power: Control of the purse.

I am reminded of the fate of the Roman Republic when pondering the submissiveness of Republicans in Congress in the face of Trump’s depredations. I have written on this subject before, but Rome, after decades of political dysfunction, slid from a republic into an empire with the acquiescence of the Roman Senate, which willingly granted to Octavian — who became the first emperor under the name Augustus (which means the illustrious one) — control of the army and a permanent status as princeps, first citizen. The fiction of the Roman Republic continued, and the Senate remained an official body, but it had little power except to exalt the status of the senators. 

Rome provides a map of how a functioning republic slips into autocracy step by small step until one day the public realizes freedoms and liberties have been lost. Rome’s descent into tyranny was not inevitable. The Roman Senate could have resisted Octavian’s power grab, but it did not. The silence of congressional Republicans who are too frightened to challenge Trump is reminiscent of the Roman Senate’s silence.

Trump’s impeachment trial is about more than the president’s guilt or innocence. It is about whether Americans value the gift given to us by the Founders of the American Republic. It is about whether American society protects its liberties and self-rule from the assault of a would-be autocrat. Trump has said Article II of the Constitution gives him the power “to do whatever [he] want[s].” The document does not do that, but the document will be meaningless if Republicans in the Senate acquiesce in his undermining of American democracy. Like the Roman Republic, the American Republic works only as long as everyone agrees to play by the rules as outlined in the Constitution.

Sadly, Republican complicity in the destruction of the Constitution likely will continue as the Senate exonerates the president of wrongdoing. But, I am writing this on MLK Day, so allow me my dream. Maybe Senator Schumer is right. Maybe senators on both sides of the aisle “could feel the weight of the moment.” If so, congressional Republicans may cease to be silent and do what Roman senators failed to do in the first century BCE and say, enough, we will not allow you to destroy our Republic.

Posted January 21, 2020

“There Is No Bottom”

There is no bottom…,”  Nicolle Wallace — an MSNBC anchor and former Republican operative — tweeted more than a year ago in reference to President Donald Trump.

Monday night this week, news broke of Ivanka Trump using a private email account for government business. A big story, right? So it seemed. But, in the time of President Donald Trump, it was the biggest story for only a few hours. Other events soon superseded Ivanka Trump’s email story, such as a statement from the president indicating the United States under Trump does not care that a journalist who was a legal resident of this country was murdered brutally on orders of a foreign nation. But, wait, more was to come that Tuesday: A presidential condemnation of a federal judge followed by reports Trump once contemplated prosecuting former Secretary of State Hillary Clinton and former FBI Director James Comey.

Nicolle Wallace is right: There is no bottom in the Trump era. Big and outrageous stories pile up, with each one overwhelming the previous outrage. In normal times — two years ago — a story like the Ivanka Trump’s emails would have dominated the news cycle for days, if not weeks. No more! Now, it was just Monday evening’s prelude to Tuesday’s gob-smacking news.

Where to start? The president’s statement on Saudi Arabia and the murder of Jamal Khashoggi may be the most outrageous event of all because it is an utter betrayal of American values. The United States once stood for decency, democracy, and the rule of law. America often did not live up to its values, and other nations might resent preachy Americans telling them what to do, but, for millions of people living in poverty and oppression, America was a beacon. Now, American policy is for sale to the highest bidder. In his statement, our transactional president declared that it does not matter what heinous crimes Saudi Arabia commits as long as it honors promises to buy billions of dollars of military equipment from the United States. In the Trump era, the message is clear: Those with enough money can get away with murder. 

In his crude statement — punctuated with flourishes of Trumpian exclamation points — the president, once again, indicated his preference for tyrants. As he has with Russian President Vladimir Putin, Trump willfully disregarded the findings of the U.S. intelligence community to justify his support for a brutal autocrat who ordered the murder of a critic. In this case, the CIA concluded — with “high confidence” — that Saudi Crown Prince Mohammed bin Salman ordered Khashoggi’s assassination. Trump apparently knows better, writing in his statement, “It could very well be that the Crown Prince had knowledge of this tragic event.” But, then again, “Maybe he did and maybe he didn’t.”

In true Trumpian fashion, the president self-servingly declared the truth of the matter is irrelevant: “We may never know all of the facts surrounding the murder.” Wrong again, Mr. President. The truth of the Khashoggi murder is not only knowable, it is known. The CIA possesses audio recordings of the journalist’s murder — which Trump has declined to hear — as well as evidence of phone calls from the killers to close aides of the crown prince.

Trump goes further: He actually does the crown prince’s dirty work by citing Saudi sources who called Khashoggi an “enemy of the state” (sound familiar?) and a member of the banned Muslim Brotherhood. Mohammed bin Salman made those allegations in a phone call to the White House, but the Saudi regime was so embarrassed when reports of the accusation leaked that it denied the smear. Trump has no such embarrassment!

In a rational world, I would devote this entire blog post to Trump’s outrageous statement on Khashoggi. Actually, that is not true; in a rational world, none of this would have happened. But, this is the world of Donald Trump, and I cannot ignore the other unseemly events of the week. According to The New York Times, Trump told the White House counsel Don McGahn last spring that he wanted to order the Justice Department to prosecute Clinton and Comey. McGahn convinced Trump that he lacked authority to do so and that any attempt could result in impeachment. The incident underscores the extent to which the president believes the Justice Department is a tool he can wield against enemies. It is another indication that Trump views America as a banana republic in which political opponents are prosecuted, and it demonstrates his vindictiveness. Clinton, after all, lost, a result for which Comey arguably is responsible. Comey’s reopening of the investigation into Clinton’s emails mere days before the 2016 election may have tipped enough votes Trump’s way. The extremely narcissistic Trump probably believes a prosecution would obscure Comey’s role in the election. Do not be surprised if Trump raises the issue of prosecuting political opponents again, only now his sounding board in the administration would be the sycophantic acting attorney general, Matt Whitaker.

Finally, though nothing is ever final with Trump, there is the presidential attack on the independent judiciary. Trump referred to ”an Obama judge” after a ruling by a district judge against the administration’s asylum policy. Trump’s attack on the independence of the judiciary brought a quick, stern, and rare rebuke from Chief Justice John Roberts.  “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. Trump has attacked the judiciary before: During the 2016 presidential campaign he claimed Judge Gonzalo Curiel had a conflict of interest in overseeing a case against Trump University because the judge is of Mexican heritage. Trump also referred to a “so-called judge” after a jurist ruled against the administration’s Muslim travel ban. The latest presidential attack on the judiciary finally appears to have riled the chief justice, who now finds himself in a public spat with the president. Trump, of course, does not let any criticism go unanswered, so he tweeted, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” Advice to Trump: Tread carefully here! The chief justice presides over the Senate trial of impeached presidents.

The outrages multiply with dizzying and sickening speed. Trump continued ranting on Thanksgiving Day about the CIA’s findings on the Khashoggi murder, Clinton and her emails, court decisions with which he disagrees, and other controversial topics in a phone call to troops overseas  and a question-and-answer session with reporters. There seems no end and “no bottom,” as Nicolle Wallace put it. What next? A new Democratic House in January will investigate all this and more, likely making Trump feel more trapped and in danger. He will lash out. The only loser is our democratic institutions, which may never recover.

Oh, yes, as for Ivanka Trump, she defended her use of a personal email account by claiming she did not understand the rules. Really? Ignorant of the rules after her father eviscerated Hillary Clinton during the campaign for doing the same thing? Can Ivanka Trump be that dumb?

No, there is a better explanation: The Trumps, father and daughter (and the elder sons), believe the rules do not apply to them.

Posted November 23, 2018

The Danger to Democracy

When the media – driven insane by their Trump Derangement Syndrome – reveals internal deliberations of our government, it truly puts the lives of many, not just journalists, at risk! Very unpatriotic! Freedom of the press also comes with a responsibility to report the news… — Tweet of President Donald Trump, July 29, 2018.

The president is intensifying his war on our nation’s free press. Trump has made “fake news” and “enemy of the people” rallying cries in his attempt to insure that the media cannot perform its historic duty to inform the public. This past Sunday’s tweet storm included accusations that “90% of media coverage of my Administration is negative,” and he attacked “the failing New York Times… and the Amazon Washington Post” for writing “bad stories on very positive achievements – and they will never change!” Sunday’s tweets followed a speech last week in Kansas City, Missouri, in which Trump told the Veterans of Foreign Wars‘ annual convention, “Stick with us. Don’t believe the crap you see from these people — the fake news…. What you’re seeing and what you’re reading is not what’s happening.”

Trump uses more than rhetoric to diminish the reputation of the press. He and his administration also try to manipulate and influence how news outlets cover the president and intimidate reporters they do not like. On his recent visit to the United Kingdom, the president referred frequently to “fake news” during a joint news conference with Prime Minister Theresa May. When Kristen Welker of NBC News asked if Trump’s shaky relationship with NATO allies gave Russian President Vladimir Putin the “upper hand,” the president responded, “See, that’s such dishonest reporting — of course it happens to be NBC, which is possibly worse than CNN.” That slur led to this exchange between Trump and CNN White House correspondent Jim Acosta:

ACOSTA: Mr. President, since you attacked CNN, can I ask you a question?

TRUMP: John Roberts, go ahead.

ACOSTA: Can I ask you a question?

TRUMP: No, no. John Roberts, go ahead. CNN is fake news. I don’t take questions from CNN.

ACOSTA: Take a question …

TRUMP: John Roberts of Fox, let’s go to a real network.

ACOSTA: Well, we’re a real network, too, sir.

Roberts then asked a question, validating Trump’s baseless and authoritarian attempt to manipulate news coverage and anointing Fox state TV. [Full disclosure: Both John Roberts and I worked at CNN, but our tenures did not overlap, and, as far as I can recall, we have never met.] Roberts apparently has forgotten that the Obama administration, in 2009, attempted to exclude his current employer, Fox News, from a series of interviews on the grounds that Fox “is not a news organization.” As Jake Tapper of CNN noted in a tweet, “Old enough to remember when other networks came to defense of Fox News WH correspondents during the Obama years. Such did not happen here.” Roberts should have refused to ask a question, deferring instead to Acosta. Jordan Fabian of The Hill declined a question last week as he foiled White House press secretary Sarah Huckabee Sanders’ attempt to bypass Hallie Jackson of NBC, who was trying to ask a followup question. Fabian said, “Hallie, go ahead if you want.” Kudos to Fabian for doing the right thing!

Last Wednesday, the administration blocked a CNN reporter from an open media event at the White House as punishment for her vigorous questioning of the president during a press-pool spray in the Oval Office. Barring a credentialed White House reporter from an event open to all members of the press is unprecedented. According to CNN’s Kaitlin Collins, Sanders and communications director Bill Shine objected to Collins shouting questions at Trump, which is normal practice in a spray. Collins was the pool reporter — which means she represented all news organizations subscribing to the pool, since the Oval Office cannot accommodate everyone. As pool reporter, Collins was obligated to report any news to the pool before informing CNN. She was performing her duty as pool reporter for the entire press corps by asking Trump questions during a spray — a time when cameras roll and there are no scripted remarks.

All administrations try to control the press. The relationship between newsmakers and news gatherers is inherently adversarial. The White House’s goal is to insure that its message gets out, and the press’s mission is to sift through the spin and report accurately what the White House is doing. Those two objectives are often in conflict. But, past administrations generally have recognized proper boundaries, and none ever tried to manipulate coverage as has the Trump crew. The Trump administration’s attempts to control the press impede the media’s ability to insure an informed electorate. This should be obvious to everyone, though it apparently is not in this age when Trump’s repeated fulminations against “fake news” seemingly resonate with his base. 

Moreover, Trump’s labeling the media “enemy of the people” endangers those whose job it is to report on him. This is a point  A.G. Sulzberger, publisher of The New York Times, tried to make in a recent meeting with Trump. “I told him that although the phrase ‘fake news’ is untrue and harmful,” Sulzberger said in a statement, “I am far more concerned about his labeling journalists ‘the enemy of the people.’ I warned that this inflammatory language is contributing to a rise in threats against journalists and will lead to violence.” Sulzberger noted that this is particularly a problem overseas, where the president’s incendiary verbiage can be an excuse for undemocratic regimes to crack down on journalists.

The public probably does not care much about the safety of reporters. But, the public should care about the truth and should want to know what the government in a democracy is doing. That is the job of the press. It becomes absolutely Orwellian — perhaps Stalinist, which, after all, was Orwell’s model — for the president to tell his followers, “What you’re seeing and what you’re reading is not what’s happening.” In other words, do not believe what you see with your own eyes and hear with your own ears, believe instead what I tell you. We knew all this was coming when Kellyanne Conway, a senior Trump administration official, told us that claims that the president’s inaugural crowd was huge were “alternative facts.”

If you are not worried about the future of democracy, you should be!

Posted July 31, 2018

The Unpredictable Supreme Court

Election night 1936, Hyde Park, New York: President Franklin Delano Roosevelt — his signature cigarette holder at a jaunty angle — sat up in his wheelchair and said, “Wow!” By a huge margin, FDR won a second term in the White House. He recorded the largest popular vote in history up to that time, and the best showing in the Electoral College since James Monroe ran unopposed in 1820. And, the Democratic Party held huge margins in both houses of Congress.

But, Roosevelt’s joy was tempered by concern that a conservative Supreme Court would eviscerate most of his New Deal. Already, the court had declared key sections of the National Recovery Administration — the vehicle for industrial reconstruction — and the entire Agricultural Adjustment Act unconstitutional. Roosevelt feared the court would undo two other key New Deal legislative accomplishments: Social Security and the National Labor Relations Act, regarded by factor workers as their Magna Carta because it guaranteed the right to unionize. 

To prevent the Supreme Court from acting against important legislation, Roosevelt proposed, on February 5, 1937, to expand its size, to “pack” the court by increasing its members from nine to 15. The president badly had misjudged his mandate. The court proposal was wildly unpopular, even among Roosevelt’s allies in Congress, and, in July, the Senate, which had only 16 Republicans in it, voted down the court-packing plan by a vote of 70 to 22. 

The vote was moot, because by then enough conservative justices had switched to the liberal side to save the rest of the New Deal. In March, the justices upheld a Washington state minimum wage law. Two weeks later, the justices ruled in favor of the labor law, and, in May, the court found the Social Security statute constitutional. All of these cases were decided by a vote of 5 to 4. As one constitutional scholar said waggishly, “A switch in time saves nine.”

The court may have been saved, and the already enacted New Deal legislation preserved, but Roosevelt’s plans to build on his landslide and expand social and economic legislation were frustrated. The court-packing plan — which riled the huge Democratic congressional majorities — was one reason little further New Deal legislation became law. Also, a sharp recession in 1937 undid many of the gains made during Roosevelt’s first term, and a series of sit-down strikes in factories and instances of labor violence weakened support for further pro-union action and pushed the country to the right. Finally, Roosevelt’s decision to campaign against anti-New Deal Democrats in the 1938 primaries backfired, and the party suffered huge losses in the midterm elections (the president’s party usually does poorly in the sixth year of a two-term president’s tenure).

There are two lessons in the story of Roosevelt and the court. First, presidents can miscalculate in trying to bend the judiciary to their will (President Donald Trump, if you knew anything about American history, you would take this into consideration when nominating a replacement for Justice Anthony Kennedy). Second, the Supreme Court’s tactical shift to the left in the 1930s demonstrates that even the third branch of government is not impervious to public opinion (which, until Roosevelt tried to pack the court, was ardently pro-New Deal). The very conservative Chief Justice John Roberts’ ruling in favor of Obamacare may be taken as an indication that contemporary political issues influence judicial decisions. 

Would a court in which Trump added first Neil Gorsuch and then someone equally to the right be as pliable as the justices during the New Deal? Certainly, there is little reason to expect decisions reflecting current cultural mores on abortion and gay rights from Samuel Alito, Clarence Thomas, and Gorsuch. But, Roberts is known to care about his legacy as chief justice, making him perhaps reluctant to overturn established legal precedents such as Roe v. Wade. And, history is full of examples of justices who did not fulfill the political wishes of the presidents who appointed them. 

Of course, Democrats would be foolish to rely on possibilities. Though the minority party has little leverage in the battle over Kennedy’s replacement, that does not mean Democrats should fold their tent and cower before the power of Senate Majority Leader Mitch McConnell. For starters, Democrats should use every parliamentary trick to delay action on whomever Trump names. Also, it does not hurt to repeat — and keep repeating — the argument McConnell made in 2016 to stymie President Barack Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia. If it was too late in Obama’s term in February 2016 to vote on a new justice, it is too close now — in July — to the midterm elections to consider a replacement for Kennedy.

Finally, there is this potent argument: People — including presidents — under a cloud of investigation ought not to pick the judges who may decide their cases. To put it more bluntly: Congress should not vote on a Trump nominee until the investigation by the special counsel is over and it is clear that Trump is not guilty of any wrongdoing. McConnell and the rest of the Republican cohort are not likely to be impressed by this argument, but it should be made at every opportunity and in every way. After all, the Supreme Court in 1974 decided the fate of President Richard Nixon’s Oval Office tapes, and the current court may have to rule on whether a sitting president may pardon himself, be forced to testify before a grand jury, or be criminally indicted. 

In the end, of course, the president probably will get his second nominee onto the Supreme Court. And, that justice likely will tilt the court to the far right. Yet, if history is a precedent, it is difficult to predict how justices will rule when major societal issues are at stake. 

Posted July 3, 2018

Trump and the Judiciary

The prospect of Donald Trump as president is frightening for many reasons. Recently, the presumptive Republican nominee gave sober Americans an added reason to be scared: The threat he poses to our independent judiciary.

Trump’s attack a week ago on a federal judge combined many of his worst qualities: His racism and bigotry, his ignorance, and his bullying. At a rally in San Diego, the real estate mogul lashed into District Judge Gonzalo Curiel for ordering the release of embarrassing internal documents detailing the predatory marketing practices of Trump University. Curiel, who is presiding over two class-action lawsuits against the educational venture, acted in response to a request by The Washington Post. Curiel’s order to unseal the documents is standard practice in civil suits.

“I have a judge who is a hater of Donald Trump, a hater,” Trump said. “He’s a hater. His name is Gonzalo Curiel…. The judge, who happens to be, we believe, Mexican, which is great, I think that’s fine.” Trump’s attack was not only distasteful, it was inaccurate. Judge Curiel was born in East Chicago, Indiana, and is a graduate of the Indiana University law school. The 63-year-old jurist was an assistant U.S. attorney before California Republican Governor Arnold Schwarzenegger appointed him to the state Superior Court. In 2014, President Obama named Curiel to the federal bench.

Curiel’s biography, which epitomizes the American dream, did not stop Trump from accusing the jurist of presiding over a “rigged” judiciary. “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace,” the candidate said. A Trump spokeswoman expanded on the charge of bias, incorrectly asserting Curiel is a part of a group organizing protests at Trump rallies in California. Curiel belongs to the San Diego La Raza Lawyers Association, which the Trump aide apparently confused with the National Council of La Raza, an Hispanic advocacy organization. Catholic, Jewish, and African-American lawyers have similar organizations, and as Jeffrey Toobin points out in The New Yorker, “membership in them is common and uncontroversial, including among judges.”

Like the journalists Trump has slammed in the past, Curiel probably will receive an avalanche of personal, bigoted abuse from Trump supporters, including, possibly, death threats. Such attacks may deter judges from further actions likely to incur Trump’s wrath, which may be part of his calculus. Of course, Trump is a private citizen, and he has a right to criticize any judge or court decision. But, Trump’s attack on Curiel goes beyond the bounds of legitimate criticism, and it reveals that judging, as Trump sees it, like everything else, is personal. Good judges are ones with whom he agrees at a particular time; bad judges, like Curiel, are jurists who cross him.

President Obama incurred much criticism for remarks in his 2010 State of the Union address criticizing the Supreme Court’s ruling in the Citizens United case. With many of the justices present, Obama said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” Chief Justice John Roberts called Obama’s comments “very troubling,” and other critics were even blunter. But, Obama did not attack the court’s integrity, and he did not suggest the justices should be punished. If Trump were president, he would have the power to intimidate Judge Curiel or any other jurist who crossed him. “They ought to look into Judge Curiel” might, under President Trump, become an order to the Justice Department to investigate or a suggestion to congressional allies to begin impeachment proceedings.

Trump’s attack on a sitting federal judge reveals a lack of understanding of the American system of government, particularly the doctrine of separation of powers. The reality TV star appears to have no sense that the judiciary is one of three coequal branches of government. When Trump complains, as he did in San Diego, “We’re in front of a very hostile judge… appointed by Barack Obama,” he is alleging, in effect, that an entire branch of the federal government is corrupt. It is an odd position for a candidate whose sister is a federal appellate judge.

Trump has no apparent philosophy or interest in how judges make decisions. All that matters to him is how a decision comes out — for him or against him. Trump judges judges the same way he judges everyone else, placing them into the categories of friend or foe. As his attack on Judge Curiel indicates, Trump’s style is bigoted name-calling, not reasoned critique. Anyone considering voting for Trump for president should expect more of the same if he wins.

Trump was asked Tuesday during a news conference if he would be as hostile to scrutiny if he were elected president as he is as a candidate. The context was different, but the answer probably applies equally to the judiciary as to the press. “Yes, it is going to be like this,” he said.

Posted June 3, 2016

 

 

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Still Struggling for Voting Rights

Politics can be frustrating. Political victories achieved in one generation are often undone in another, forcing the political system to revisit old victories over and over.

The Voting Rights Act of 1965 is a case study in the impermanence of democratic solutions. The law, passed with support of both political parties and with the vigorous backing of President Lyndon B. Johnson, finally granted African Americans the political power to guarantee the achievements of the Civil Rights revolution would be protected.

“The results were almost unimaginable in 1965,” writes Ari Berman in his new book, Give Us the Ballot: The Modern Struggle for Voting Rights in America. In subsequent years, the number of African Americans registered to vote in the South soared from 31 percent to 73 percent and the number of African American elected officials increased from fewer than 500 to over 10,000. And, Barack Obama was elected president of the United States — twice.

Isn’t the very success of the Voting Rights Act proof it is no longer needed? This is the argument of a group of activists, Berman dubs them “counterrevolutionaries,” who waged a decades-long struggle to undermine the enforcement powers the act gave the Justice Department to insure equal access to the ballot for all Americans. Chief among the counterrevolutionaries has been Chief Justice John Roberts, who used his perch in the Justice Department in the Reagan Administration to argue against the provision in the 1965 bill that required some states and individual jurisdictions with a history of discrimination against minorities, mostly in the South, to obtain the approval of the Justice Department for changes in their election laws. Thanks to the Supreme Court’s 2013 decision in Shelby v. Holder, these states and jurisdictions no longer have to seek pre-clearance for rewriting election laws or redrawing district maps. The majority decision was written by Chief Justice Roberts.

There has been a debate over the last 50 years as to whether the Voting Rights Act simply provided access to the ballot, as conservatives claim, or whether the intent of the law was to encourage greater representation, as liberals maintain, among African Americans and other minorities in the political system. The Supreme Court’s decision in the Shelby case enshrined the conservative, narrow interpretation of the law, and it gave renewed emphasis to the recent conservative push to restrict voting by stressing alleged voter fraud.

Republicans understood that Barack Obama won the presidency because his organization brought large numbers of newly enfranchised voters — the young, minorities, and the poor — to the polls. Early voting, particularly Sunday voting, eased their participation. It is axiomatic in American politics that higher voter turnout helps Democratic candidates. “I don’t want everybody to vote,” said Paul Weyrich, the first director of the conservative Heritage Foundation. “As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.” Give Weyrich plaudits for candor, but he earns demerits for his lack of devotion to democracy.

Conservative state legislatures cannot be as honest as Weyrich when attempting to restrict voting by African Americans, Latinos, the young, and the poor. To limit access to the ballot, conservatives invented the bogeyman of “voter fraud” to limit early voting, end registration drives, and justify voter ID laws, which require anyone showing up at the polls to posses a driver’s license, a passport, or other form of often hard-to-obtain identification. Middle class suburban white voters usually have these documents while many poor and inner-city residents do not. That minorities, the young, and the poor trend overwhelmingly Democratic is hardly a coincidence.

Alabama has gone one step further in restricting African American participation at the polls. The state, which already has a stringent voter ID law, is closing 31 driver’s license offices, including those in every county in which African Americans make up more than 75 percent of registered voters, ostensibly to cut costs. In other words, minority voters who do not have driver’s licenses are now required to possess a license they cannot obtain.

Election fraud is extremely rare in the United States. From 2000 to 2010, there were 2,068 cases of alleged election fraud out of 600 million votes cast, amounting to a .000003 incidence of election fraud. Voter fraud is even rarer: Of the 2,068 cases of alleged election fraud, only 633 involved alleged voter fraud. And in-person voter fraud — where someone other than the person registered shows up at the polls and tries to vote — is virtually nonexistent. Out of the 600 million votes cast from 2000 to 2010, there were only 10 cases of in-person voter fraud. It is noteworthy that ID laws are never applied to voters casting absentee ballots, where the risk of fraud is greater than in in-person voting. Interestingly, Republicans are more likely to be absentee voters.

Berman details all this sorry retreat from the initial promise of the Voting Rights Act. “No matter how much evidence emerged to the contrary, the voter-fraud myth would never die,” he writes. The non-existence of fraud has become the pretext for the creation of the much more serious problem of obstructing legitimate votes. Activists in states like North Carolina have undertaken civil protests of voter restriction laws, an invocation of the Civil Rights movement of the 1960s, which led to passage of the 1965 act. It is likely that one or more of these new, restrictive laws will wind up before the Supreme Court, which unfortunately has already gutted the Voting Rights Act once.

Give Us the Ballot helps readers understand why we are still fighting over who gets to exercise the most basic of American rights and why some victories have to be won — and won again.

Posted October 9, 2015

“Waiting, waiting, waiting”

What issue do voters repeatedly say is most important in the upcoming presidential election? Answer: The economy.

What issue did not get much attention at last week’s prime-time Republican presidential debate? Answer: The economy.

James Pethokoukis, a scholar at the American Enterprise Institute, a conservative think tank, analyzed the transcript of the debate. He found 10 references to the Middle East compared to four to the middle class; 23 to defunding Planned Parenthood and only three to single parents; seven mentions of building a wall to keep immigrants out of the country against only five references to economic growth to benefit everyone already in the United States.

David Winston, a Republican pollster who does not support any of the candidates, notes that the economy supersedes all other issues for voters. “Whenever the candidates are not talking about jobs and the economy, they’re off on the wrong topic,” he says. Polls back up Winston’s observations. In a Quinnipiac University poll taken in July, 37 percent of respondents name the economy as the most important issue with health care second at 13 percent. A CNN/ORC poll taken at the same time has the economy ahead of health care 44-20 percent. Other polls taken in 2014 and 2015 yield similar results.

Democrats know what matters to voters. Hillary Clinton focuses on economic and family issues in her campaign, while insurgent Bernie Sanders repeatedly attacks the corporate billionaire class for destroying America and impoverishing the middle class. Sanders tweeted during the debate: “Waiting, waiting, waiting. Will we hear anything about racial justice, income inequality or making college affordable?” It is a pretty safe bet that the economy, jobs, raising the minimum wage, and the plight of the middle class will be in the forefront of the discussion when the Democrats hold their first debate next month.

It is not as if time were a factor in determining the topics to be discussed last week at the GOP debate. The candidates had three hours at the CNN debate, plenty of time to discuss defeating the Islamic State, criticize President Obama’s nuclear deal with Iran, advocate restricting abortions, and urge the deportation of illegal immigrants, construction of a wall to keep out new arrivals, and the end of birthright citizenship. And, oh, enough time to lash into extremely conservative Chief Justice John Roberts. But with a huge audience — the debate was CNN’s highest-rated event ever — little time to discuss the economy.

Part of the blame for the absence of economic issues lies with the debate moderators, who asked few questions about the middle class and job growth (more attention was paid to these issues in the earlier undercard debate). CNN’s Jake Tapper and his cohorts were more interested in going for the visceral, asking Carly Fiorina to respond to Donald Trump’s egregious comments about her looks, for example. But only part of the blame — because on the stump, the candidates are more likely to focus on terrorism, abortion, immigration, and gay rights than on the economy.

Republicans may be loath to discuss the economy because it is, after all, doing well. Take unemployment: Mitt Romney promised to get the unemployment rate down to six percent during his first term; it is now 5.1 percent. The stock market — though shaky the last few weeks — has grown by leaps and bounds under President Obama. Inflation is low, as are interest rates, and gas prices are once again going down.

Not all is well with the economy, to be sure. The wealthy have done extremely well in the current recovery, but middle class wages have stagnated and too many people remain mired in poverty. College has become unaffordable for many young people, and more and more Americans believe that economic opportunity and upward mobility no longer exist in 21st-century America.

Unfortunately for the Republican candidates, these are not the economic issues for which they have policy prescriptions. The single most important Republican economic idea remains lowering tax rates on the wealthy, a tough selling point in a recovery in which the rich have gotten richer while the remaining 99 percent of the country has remained in the same place, at best. Trickle-down economics has limited appeal to most Americans who believe most of the trickling has been up.

Some Republican candidates have discussed the economy. Donald Trump and Jeb Bush have advocated taxing the earnings of hedge fund operators as ordinary income, and they and others have discussed reforming the tax code, but usually in ways — such as flat taxes or consumption taxes — that would benefit the wealthy and shift more of the tax burden to the middle class and the poor.

But for the most part, GOP candidates would rather pander to the conservative base of the party by condemning Planned Parenthood, ending birthright citizenship, and attacking Chief Justice John Roberts. It may work in the short run, but it is not likely to help the eventual Republican nominee in the general election.

Posted September 22, 2015