Monthly Archives: September 2018

Meanwhile, Under The Radar….

One of the problems with political discourse grows out of specialization–as the world around us gets more and more complicated, people who are experts in different fields, who use different vocabularies and operate from within different conceptual frameworks have trouble communicating with each other and with the public.

This “silo-ing” can be frustrating, and it’s made worse by the unnecessary use of jargon. But a lot of it is inevitable. I can’t follow the more detailed statistical analyses of my economics colleagues, or the computations that support climate science, or the medical terminology my doctor uses.

Similarly, very few Americans follow legal matters that are more complex than an episode of “Law and Order.” That’s why a case currently pending before the Supreme Court has gotten very little attention, despite its potential consequences. The case is Gamble v. United States.

To its credit, The Atlantic had an article explaining the issue, and those consequences.

Gamble addresses a fairly arcane area of constitutional jurisprudence:  the dual-sovereignty doctrine. That’s a 150-year-old exception to the Fifth Amendment’s prohibition of double-jeopardy. In plain English, the doctrine allows state and federal courts to prosecute the same person for the same criminal offense.

And why, you are asking yourselves, should you give a rat’s patootie about that?

Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Donald Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws. (Both states have a double-jeopardy law that bars secondary state prosecutions for committing “the same act,” but there are important exceptions, as the Fordham University School of Law professor Jed Shugerman has noted.)

If the dual-sovereignty doctrine were to be tossed, then Trump’s pardon could theoretically protect Manafort from state action.

Senator Orrin Hatch has submitted a brief in the case, arguing that the doctrine should be invalidated, although he claims the Mueller investigation has nothing to do with it. (Pardon me while I snicker….)

Here’s the analysis: If Trump shuts down the Russia investigation, Mueller  could “farm out” cases to state-level attorneys general. Those AGs can’t be shut down by Trump and they can, within some limits, charge people with state crimes, even after those people have received a federal pardon. If the dual-sovereignty doctrine is invalidated, however, a federal pardon would essentially block a subsequent state-level prosecution.

The original issues in the case had nothing to do with the Russia investigation; it began as a relatively arcane argument about how federalism should work. And Paul Rosenzweig, a senior fellow at the conservative R Street Institute thinks it may not have the effect that Orrin Hatch evidently thinks it will.

Trump’s pardon power is “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States,’” Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.

If that Constitutional language is interpreted that way. But it probably won’t be, if Brett Kavanaugh–or someone like him– is on the Court.

That’s one example of why judicial philosophy–and appointments to the Court– matter a lot more than many people think.

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Reflections on Kavanaugh And The Rule of Law

I cite to a lot of publications, but I’ve not previously quoted (or, let’s be honest, read)  America: The Jesuit Review of Faith & Culture. That said, I am in full agreement with the article in which that journal withdrew its endorsement of Brett Kavanaugh.

But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Congress and the Administrative Branch are broken and dysfunctional. Brett Kavanaugh’s nomination is an assault on what remains of the legitimacy of the judicial branch. Together with the shameful refusal to grant Merrick Garland even the courtesy of a hearing, it represents a surrender to toxic partisanship and an acknowledgment that we are in a virtual civil war.

About those “hearings”….

Many years ago, when I was active in Republican politics, I was asked whether I would consider being a candidate for a local judicial position. I explained that I lacked a judicial temperament—I tend to be an advocate, and advocacy in my view (then and now) is inconsistent with the judicial function.

We lawyers talk a lot about “judicial temperament,” because it matters. We The People are entitled to have our disputes adjudicated by sober, thoughtful people who can put aside their own prejudices and emotions, and fairly weigh the relevant facts.

The Kavanaugh hearing was not a trial. It was a job interview–his opportunity to demonstrate that he has the intellectual capacity, maturity and judicial temperament appropriate to a judicial position.

He failed.

Ignore his refusal to submit to an FBI investigation, or to a polygraph. Ignore his highly partisan past behavior. Ignore the committee’s refusal to provide over 90% of his work product for the Bush Administration, or to call the people who were identified as witnesses to Dr. Ford’s assault. Ignore the fact that there is irrefutable evidence that Judge Kavanaugh lied about his history of drinking to excess.

Just focus on his demeanor. And ask yourself if you would want this hostile, petulant, entitled man to rule on a case involving your Constitutional rights.

There was a reason the nation’s Founders created an independent judiciary. They reasoned that removing judges from the political process, from the need to respond to the “passions of the majority,” would allow them to rule dispassionately on the matters before them. Their judgments wouldn’t always be correct, but they would be rendered in good faith—based upon their reading of the law and facts, and not their personal re-election prospects.

When our elected representatives are asked to “advise and consent” to a lifetime judicial nomination, they need to recognize the difference between a conservative or liberal judicial philosophy and simple partisanship. We should be wary of a jurist who approaches the Constitution without a well-developed belief in his or her proper interpretive role, and we can agree with that philosophy or not, but disagreement does not disqualify the nominee.

Partisanship is another matter entirely. A judge who is committed to the fortunes of a political party, who will approach the issues from the perspective of a “team player,” poses a clear danger to the rule of law, and undermines respect for the judicial process. Kavanaugh’s entire history marks him as a highly intelligent partisan hack.

There is a reason the American Bar Association called for an FBI investigation and a delay in the confirmation vote. There’s also a reason the Republicans would have ignored it–along with the huge public backlash to the conduct of that farcical “hearing”– but for the position taken by Senator Flake.

Kavanaugh may yet be seated on the highest Court in the land.

These are really dark, dark days for the American Idea and the rule of law.

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If Wishing Could Make It So

I hope this column from The Guardian isn’t a case of “whistling Dixie” as the old saying goes.

Titled “The Republican Party is about to face the wrath of women,” the writer suggests that the anger I’ve expressed over the GOP’s behavior in the Kavanaugh hearings is both a lot more widespread than many think–and not limited to the behavior of those involved in these hearings.

Even the dimmest and most misogynist of Republican operatives must realize, by this point, that the supreme court nomination of Brett Kavanaugh and the handling of the sexual assault allegations against him will hurt their chances, especially with women voters, in the upcoming midterm elections.

What they don’t seem to realize, though, is that huge numbers of women aren’t just mad – they’re organized and mobilized politically in a way we’ve never quite seen before. The key story of the midterms is the large number of progressive women – and to a lesser extent, progressive men – who have been taking on the crucial, unglamorous work that swings elections: registering voters, canvassing door-to-door, preparing to get people to the polls. The disdain for women that the Republicans have shown by continuing to rally behind Kavanaugh is only energizing them further.

The author cites some impressive evidence for those assertions. Beginning with the millions of Americans who joined the Women’s Marches following Trump’s election, the author describes a “multi-issue, women-led upsurge of political engagement on an unprecedented scale.”

Nearly 25,000 protests have taken place since Trump’s inauguration, involving somewhere between 14 and 21 million Americans. These figures greatly exceed levels of protest participation at any prior time in US history, even the height of the Vietnam war. And no matter the issue or focus of the demonstrations, women have consistently been the majority of those taking to the streets. (Emphasis added.)

Protests, without more, change nothing. So it is both impressive and gratifying to see the level of grass-roots activism that has accompanied those marches. Women, especially, have built what the author calls “a powerful electoral ground game.”

Substantial mobilizing for the midterms is being done through the vast array of local grassroots groups that formed after Trump took office, including the 5,000 groups affiliated with Indivisible. Like the resistance to Trump more generally, these groups are typically women-led and have already played a key role in a series of progressive electoral upsets, including Doug Jones’s Senate victory in Alabama last December to Alexandria Ocasio-Cortez’s highly publicized primary win this past June. Their autonomy from the Democratic party gives much of their work an under-the-radar quality that can obscure their impact.

Theda Skocpol is an eminent political scientist who has investigated the resistance–the anti-Trump phenomenon that is reflected in the 5,000 groups cited in the Guardian column.

Skocpol, the longtime government and sociology professor at Harvard University, has been making research trips to eight counties that went for Donald Trump in North Carolina, Pennsylvania, Ohio and Wisconsin, as well as communities across all of Pennsylvania. In suburban America, even in uber-conservative counties, Skocpol began to notice action groups popping up in response to Trump. And she began to notice who was doing the organizing, here in the heart of what the national media have taken to calling Trump Country: women. Specifically older, college-educated white women: “retired teachers, librarians, health care people, some businesswomen,” as Skocpol put it.

Exit polling tells us that 52 percent of white female voters went for Trump in 2016 (something I still can’t get my head around….)

Skocpol acknowledges this, but her research suggests that the political behaviors of these white women have shifted radically in the wake of the election. They are calling on Congress, knocking on doors on behalf of state and local candidates, and in some cases, running for office themselves. “Sociologically, what we are witnessing is an inflection point — a shift in long-standing trends — concentrated in one large demographic group, as college-educated women have ramped up their political participation en masse,” she wrote in a recent essay co-authored with Lara Putnam.

Skocpol’s observations certainly mesh with the enormous upsurge in women’s political activity that I’ve seen in Indiana. But the proof of the pudding–to use another old-fashioned saying–will come when the votes get counted.

I’m not hoping for a wave–I’m hoping for a tsunami. And I’m alternately terrified by the thought that we might not get either one.
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Hostile Sexism

In yesterday’s post, I basically vented about the sexism being displayed by the Senate GOP during the Kavanaugh confirmation process. Today, I want to follow up with a broader discussion of what a recent sociological study has dubbed “hostile sexism.

An article from Salon discussing the study began–predictably–with the Kavanaugh fiasco, and the remarks from Trump and Senate Republicans.

Republican elites are also defending Kavanaugh, with Sen. Orrin Hatch, R-Utah, going so far as to say that even if the rape allegations were true they might be excusable: “I think it would be hard for senators not to consider who he is today”. Once again, per America’s tradition, culture and habit, elite white men are protected from the consequences of their behavior.Toxic white masculinity is encouraged in America. White men are infantilized, while black and brown men and boys are pathologized.

The article described the relevance to these recent events of a recent study by University of Kansas sociologists David Smith and Eric Hanley. Their research wasn’t limited in its scope to sexism, although it did address what it called “a socially combustible mix of racism and sexism, in combination with anger and bullying.”

Writing in “The Anger Games: Who Voted for Donald Trump in the 2016 Election, and Why?”, which appeared in a recent issue of the journal Critical Sociology, Smith and Hanley summarize their new research:

“We find that Trump’s supporters voted for him mainly because they share his prejudices, not because they’re financially stressed. It’s true, as exit polls showed, that voters without four-year college degrees were likelier than average to support Trump. But millions of these voters — who are often stereotyped as “the white working class” — opposed Trump because they oppose his prejudices. These prejudices, meanwhile, have a definite structure, which we argue should be called authoritarian: negatively, they target minorities and women; and positively, they favor domineering and intolerant leaders who are uninhibited about their biases.

The authors research confirmed what other research about the 2016 election, from political scientists as well as sociologists, has found: what unified Trump’s voters was not “economic anxiety” but prejudice and intolerance, and a significant dose of misogyny.

Smith and Hanley identified eight attitudes that interacted with each other and strongly predicted support for Trump: identifying as conservative; support for a “domineering” leader; Christian fundamentalism, prejudice against immigrants, African-Americans, Muslims and women; and “pessimism about the economy.”

The research demonstrates the ways in which racism and sexism reinforce each other, and predicts support for candidates willing to bully both women and people of color.

Most Trump voters cast their ballots for him with their eyes open, not despite his prejudices but because of them. Their partisanship, whether positive (toward Trump and the Republicans) or negative (against Clinton and the Democrats), is intense.

This partisanship is anchored in anger and resentment among mild as well as strong Trump voters. Anger, not fear, was the emotional key to the Tea Party, and that seems to be true for Trumpism as well. If so, the challenge for progressives is greater than many people have imagined. Hostility to minorities and women cannot be wished away; nor can the wish for domineering leaders. The anger games are far from over.

The Salon article included an interview with one of the researchers that is well worth reading in its entirety. This response to a question, especially, explains his disagreement with the approach of many liberals to Trump voters:

Many liberals are reluctant to believe that large numbers of people are as mean-spirited as their words and actions might suggest. They want to think that fear, not vindictiveness, drives support for vindictive rhetoric and policy. That’s generous, but I think it’s also a special kind of blindness.

In fact, we seem to have two opposite forms of emotional blindness. Many liberals can’t believe that large numbers of people are vindictive while many conservatives scoff at the idea that liberals are not vindictive. Liberals often make excuses for people who show signs of intolerance. Right-wingers, in contrast, often laugh at claims to “feel your pain.”

These attitudes shouldn’t be ignored. Right-wingers who hate liberals are problematic, and liberals whose reflex is to forgive them are problematic too.

This research helps explain the behavior of the Senate Republicans that set me off yesterday.

It doesn’t excuse it.

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The GOP’s Sexist Culture

I need to vent.

I realize I live in a bubble. On my campus and in my neighborhood, I just don’t encounter people like those who are dismissing the accusations against Brett Kavanaugh as “politically motivated,” or even worse, accepting their accuracy but dismissing their importance.

Senate Republicans have deliberately chosen to embrace Kellyanne Conway’s “alternate facts,” and the conspiracy theories so beloved by Donald Trump and to disregard their constitutional obligation to objectively review this nominee.

Speaking of conspiracy theories, the attacks on Dr. Ford have a lot in common with  “birtherism.”  To disbelieve her accusation, you need to believe that Ford knew years ago, when confiding in her therapist and her husband, that Kavanaugh would someday be a nominee to the Supreme Court, and so she carefully planted incriminating evidence. And Obama’s mother knew the day she had him that some day he’d run for President, so she sent his birth announcement from Kenya to the Hawaii newspapers…

Right.

We don’t yet know what similarly bizarre theories will be offered to rebut the additional accusations that have emerged, or to justify Kavanaugh’s clear disinterest in an FBI investigation which–if he isn’t lying through his teeth– would clear his name.

What we do know is that we live in a patriarchal culture that continues to devalue women and denigrate the significance of our experiences.

We also know that Senate Republicans are so frantic to “capture” the Supreme Court and protect their radically right-wing agenda, that they were willing to breach their constitutional duty to “advise and consent” in order to deny President Obama his choice of (a very moderate) Merrick Garland. As Trump’s “slam-dunk” choice has turned out to be not so slam-dunk, their dismay is understandable.

Their misogyny is not.

The Senate GOP found out about the newest allegations two days before they became public. Their response?  An effort to speed up the confirmation vote–Not concern over determining the truth of the matter, nor hesitation about the consequences of elevating a person who might prove to be a liar and  sexual predator to the highest court in the land.

The most striking aspect of GOP Senators’ reaction to each of these revelations has been their utter tone-deafness. Lindsey Graham says he’s willing to listen to Dr. Ford, but then adds “What am I supposed to do? Go ahead and ruin this guy’s life based on an accusation?”

Other (white Christian male) Republican Senators have similarly pre-judged Kavanaugh’s behavior–after all, he was “only” 17. Ford was “confused.” Trump, of course, tweeted that if the incident had really been as bad as she described, she should have reported it then and there. (I may be wrong, but I don’t think any of the 19 women who have accused Trump of sexual assaults made a contemporaneous report…)

The overwhelming message coming from the GOP is: sexually assaulting a woman shouldn’t matter. It’s no big deal.

If it did happen, he was young. And white and privileged.

Of course, if it did happen–and logic and evidence strongly suggest that it did (she told her therapist years ago, has passed a lie detector test and has asked for an FBI investigation)–then Kavanaugh has clearly lied to the Senate.  Surely that should matter.

Despite the Republicans’ ham-handed efforts to avoid the public relations mistakes made during the Anita Hill hearings, the message that America’s women are hearing loud and clear is that our testimony will always be discounted, our motives will always be impugned, and offenses against us will always be considered less important than the continued enjoyment of power and status by our male superiors.

Unfortunately for the GOP, however, and as much as they would clearly like to withdraw the franchise, we can–and will– vote.

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