Blame The Courts

What’s that old saying? The enemy of my enemy is my friend?

 Over at Dispatches from the Culture Wars a few days ago, Ed Brayton actually endorsed a theory offered by Jonah Goldberg.

Both Goldberg’s column and Brayton’s comment on it were offered in the run-up to Trump’s demand that he be given broadcast time to address the nation about the “crisis” at the border. Both predicted that Trump would declare a “national emergency” entitling him to ignore Congress and build his ridiculous wall.

As we now know, during that broadcast Trump simply reiterated his previous, fabricated “reasons” for building the wall. But he has continued to threaten the tactic.

Goldberg noted that such a move would be contrary both to common sense and the rule of law.

Do we really want to establish the precedent that the president can simply declare “It’s an emergency” like some magical incantation and then completely bypass property rights and the will of Congress just so he can fulfill a campaign promise that, if Sam Nunberg is to be believed, began as a consultant’s gimmick to get the candidate Trump to talk about immigration and what a great builder he is?

Moreover, if Trump actually attempted to use the military to seize private land, spending money Congress did not authorize, think of what the news cycle would look like, not from Trump’s perspective but from the perspective of other elected Republicans. Assuming that the Supreme Court or Congress didn’t stop him — a big assumption — would you like to run for office defending hourly images of armed U.S. troops kicking in doors or rolling out concertina wire? Is it beyond imagining that at least one Texas or Arizona rancher would get shot defending his property?

According to Goldberg, the theory then circulating in Washington was that the White House was fully aware that an order of that sort would generate multiple lawsuits and would likely be blocked almost immediately by the courts. That–in their view–would be the best of all possible worlds; it would extricate Trump from a box of his own making. He’d be able to tell his base he’d done everything he could, but his plan for America’s safety had been blocked by those terrible judges.

The reason this scenario seems so plausible is because such a patently illegal declaration would mimic a dishonest and destructive strategy that is pursued with some regularity by legislators at all levels of government. They can pass a bill they know to be unconstitutional, placating the constituents who want it, secure in the knowledge that the courts will bail them out.

I still remember a long-ago conversation with a student in one of my graduate classes, who happened to be a State Representative. He had just voted for a bill requiring schools throughout the state to post the Ten Commandments. I knew he was fully aware that such a law would violate the Establishment Clause, and I asked him why he had voted for something he knew to be unconstitutional. He replied that the “folks back in Mayberry” would be angry if he’d voted no, so he’d decided to “let the courts take the heat.”

There are a number of problems with that strategy. It rewards moral cowardice, and it feeds hostility to the judiciary among people who don’t understand the constitution, the function of the courts, or checks and balances.

And eventually, if Trump and the GOP get their way, pretty soon we won’t have competent, principled judges on the federal bench who are willing to “take the heat” in order to protect the constitution from cynical legislators pandering to constitutionally-illiterate voters.


  1. Time has passed and much has happened since the 2016 presidential campaign, so memory fails me on this issue; how many Intelligence Briefings did Trump NOT attend and any record of what the specific issues were? Who attended in his stead…did anyone? Of course he is not a reader so his reading comprehension level is at the bottom of that chart; his hearing comprehension is no better but doubtful anyone in the White House is trying to stop him. The Senate is blaming the House; the House is blaming the Senate and cases are landing in courts before incompetent, unprincipled judges to be passed on, at some future date, to a higher court. Primarily to clear their dockets. Trump’s court cases are piling up; are their issues connected to Robert Mueller’s scope of his investigation?

    The Russian election interference has uncovered a many tentacled beast and spread many cases into the courts; rather like that old story “Stone Soup” which did produce a digestible concoction. Is Robert Mueller to provide the answers we need to cease and desist this entire chaotic, national and international Trump insanity? Will it come in time to salvage some of our currently questionable international diplomatic relations as well as his Mexican wall temper tantrum?

    Are the lower level courts helping or hindering any of the situations at the federal level or are states’ rights interfering due to ignoring – or ignorance of – the higher rule as required in the Constitution?

    “And eventually, if Trump and the GOP get their way, pretty soon we won’t have competent, principled judges on the federal bench who are willing to “take the heat” in order to protect the constitution from cynical legislators pandering to constitutionally-illiterate voters.”

    Is this an eventual situation or is this what we are experiencing now?

  2. I believe this goes to show exactly what his so-called ‘base’ holds as ‘basic freedoms’ – had they had ONE patriotic bone in their bodies, in truth, they would be on the border pointing their guns at anyone trying to seize private land illegally (remember the Bundy Ranch?) But I notice NOT ONE WORD and not one action in that way! – interesting that eh? The true Patriots in this nation I believe will use the Courts to fight this wanna-be dictator, not guns. Furthermore his base that these so-called talking heads on whatever media channel say we should fear lest they rise up!… to that I say – Bullshit. The rhetoric shows they are just apologists for a mean-spirited evil in two shoes wanna be dictator – and they should be ashamed. We are after all is said and done – a ‘Nation of Laws’ – I believe the Law will prevail. And it is the Courts we must protect. Unless someone pushes the button then it is all out the window.

  3. I remember with great fondness the good old days (pre-2017), when you had to get a “Qualified” from the American Bar Association in order to even have your name submitted for a federal judgeship. I disagreed with a few of those designations, but at least it was a standard, of sorts. In the past year we have seen the ABA withdraw a “Qualified” after Justice Kavanaugh showed that he clearly didn’t have “judicial temperament” and two, (Goodwin and O’Connor for Districts in Oklahoma) clearly labelled “Unqualified” approved by the Senate.

    The former case clearly showed that the ABA does not review transcripts of cases that were overturned on appeal to determine the temperament of a candidate. The latter case shows that, with McConnell in charge of the Senate, it doesn’t matter anyway.

  4. Republicans love and worship the Constitution with the zeal of fundamental literalists. Until they don’t, which is becoming more frequent as they become less interested in governing and more obsessed with merely ruling. And no, there won’t be competent judges. The GOP is packing the courts with right-wing tools who’ll simply rubber stamp whatever egregious travesty they want to pass off as “originalism”

  5. “There are a number of problems with that strategy. It rewards moral cowardice, and it feeds hostility to the judiciary among people who don’t understand the constitution, the function of the courts, or checks and balances.”

    To say the Republicans and the Republican-appointed judges are moral cowards is a redundancy. Why? Because their donors, the real ruling class, require that fealty in order to make more money. None of the rest matters to the moguls who fund the Republican party. This galloping corruption given to us by the same moguls who funded the Citizens United v. FEC lawsuit and purchased the mind and soul of Antonin Scalia, Clarence Thomas, Sam Alito and John Roberts is what our capitalists deem necessary to keep the stockholders happy and themselves ensconced in their ivory towers.

    Follow the money, and we see how this works. It’s not that complicated. In fact, it’s ancient. Entire kingdoms, societies and cultures work this way for centuries, ever since the invention of money and economics. That which we perceive as a sickness in modern times (post economics) was really a survival trait that directed tribal humans to hoard any surplus for themselves and fight against any other tribe that tried to take some share of the resources available.

    Try as we might, we just can’t seem to make the intellectual leap away from hoarding/greed and share the great wealth for the betterment of the species/society. No. Instead, we turn our ancient tribes into socio-economic tribes and fight at taking resources away from the tribes that are not conducive with certain “values”.

    Finally, it IS in fact our illiterate society that is allowing the creatures from under the rocks to determine our fate and our future.

  6. From the above: >> I knew he was fully aware that such a law would violate the Establishment Clause, and I asked him why he had voted for something he knew to be unconstitutional. He replied that the “folks back in Mayberry” would be angry if he’d voted no, so he’d decided to “let the courts take the heat.”
    The response by this State Rep is one example of why his base would see the courts packed with activist, liberal judges and the necessity to find judges that agreed with the base rather than the Constitution or Law.

    This tactic of avoidance of responsibility by the Right Wing-Reactionary-Evangelicals Republicans was evident during their various attempts to repeal ACA. Once these dufeous Republicans realized how damaging repealing ACA would be , President Agent Orange made repeal and replace one of his Twitter Points. Of course there never was a plan just a blank piece of paper.

    Same tactic is now operational with The Wall. President Agent Orange and Pastor Pence offer no details. The Wall will be concrete or steel or both. Maybe The Wall will be a cyclone fence or picket fence Huck Finn and Tom Sawyer can paint. Where will The Wall be needed??? The intellectually deficient base asks no questions. It has following Face Book posts I read just one more mindless chant -Build the Wall, like lock her up.

    The simplistic beauty of being a Right Wing-Reactionary-Evangelicals Republican is you can chant and not think a trait of all Authoritarian Organizations.

  7. Is it not sad that a desperate minority of our citizens have elected #45 who then wants to have the power of a dictator and do whatever he pleases? I can only hope and pray that the judicial system upholds the constitution and strikes down his fabricated “national emergency.” After all the minority should not have this much power.

    Speaking of a minority with power. The wealthy should not have so much power either.

  8. It is all about spinning the news stories to get their base angered.

    If only the Rs and trump would be honest about why they want the wall or any other type of southern border. It is all about not having to financially support any immigrants who come to this country who are too poor to support themselves and pay their own way.

    It is about their base being angry about having to pay taxes to support the immigrants. It is definitely not about a fear that they are criminals.

  9. “Checks and balances” only exist in democratic republics as underwritten by our framers.

    However, as an international report just concluded, the USA is no longer a beacon of democracy…in fact, we’ve dropped out of the Top 20.

    It amazes me that Einstein told us in the 50’s that we were no longer a democracy. Princeton concluded several years ago that we were an Oligarchy, which is what Einstein said 60 years ago.

    Therefore, ALL branches of government are a joke. The Fourth Branch is a joke.

    Until we democratize our institutions from bottom to top, we’ll move ever closer to Authoritarianism which is exactly what the POTUS position has become over the past several decades. A “national emergency” to circumvent Congress is just ratcheting up the process exponentially.

    When the people retaliate over such abuse of power, he will institute Marshall Law. Yellow vests anyone??

  10. Here are some interesting polling results:

    Amid the longest government shutdown in US history, a majority say Donald Trump bears more responsibility for it than the Democrats in Congress, and the President’s disapproval rating has climbed five points since last month, according to a new CNN Poll conducted by SSRS.

    Overall, 56% oppose a wall, 39% favor it. Overall, the President’s approval rating in the poll stands at 37% approve to 57% disapprove. Disapproval has risen five points since December, while his approval number has held roughly the same.

    The increase in disapproval for the President comes primarily among whites without college degrees, 45% of whom approve and 47% disapprove, marking the first time his approval rating with this group has been underwater in CNN polling since February 2018.

    The public generally is more apt to blame the President, with 55% saying he is more responsible for the shutdown than are Democrats in Congress, while 32% say the blame rests mostly with the Democrats.

    Independents are more apt to blame Trump (48% to 34%), and are most likely to say both sides are responsible (14%).

    What we can read in here is that 35% or so, cling to President Agent Orange and Pastor Pence no matter what.

  11. same ol same ol, here in NoDak, we have a court system that is totally depended on for work comp,social security claims, and such,seems the state people hired to make desicisions based on facts,drs recommendations,etc,who are hired to make decisions,play yes games to the state. yes,we will denie claims,you go hire a lawyer,and we,ll let a judge decide. this is policy here. hire the lawyer,of course,people here are unaware of lawyers who work both sides of the fence,for and against,in any claims case. hense,a sysytem postured to benifit the monied side of the equasion. you win,now you also pay the lawyer. this is so common,you just do it here,rather than demand the state make a decision,for the facts involved.
    recent family move, my daughter,happily married,and a farm size girl at 36, got a little frisky with the hubby, now mind you,she is a very cool,easy going woman witn a really out going attitude,all positive and likes to wrestle. her and hubby were in the front yard,little tippsey, but laughing their ass off,she somehow managed to whack him in the eye, and according to the onlookers,who laughed at the whole thing,a neighbor went and called the cops, now the state of kansass feels ot has the right to, arrest the husband,and put the family on alert with child safety,etc.alls cool,until the lawyer wants them to plead guilty,and see what happens. bad move. now the state gains control,and has a judge issue a restarining order on him,a dad with such great one on one with my grandkids. now, ill be frank, her husband is a nerd,non violent,and probably the best dad you will find in todays world.
    there never was a fight,just some kids having some fun,while being a little drunk. my daughter is not violent,and never would hit someone,unless its a outright threat to her self or family. the lawyer has his own opinion,and allowed letting the court decide. get real, a lawyer actully making decisions? its a usual thing when people dont have a clue,about thier rights. by advisement by his family would lay down and let a train run him over,because its the courts,and thier right?right? i stepped into it, demanded they plead not guilty,and file it,without a lawyer,fire the sob. and file with it a ineffective council with the change of plea. kansas is broke, and probably wouldnt want to persue. but i get run over by family,who are conservitives who havent a clue,and allow state and judges free reign to classify and distroy lives as they see fit,because the people havent a clue,or are to damn lazy to speak out. Salina Ks, is a a trump shithole. ive lived there years ago, and thats why i left after a year. if a state become overbearing,and allows judges free reign to set standards,as they see fit,without public input,weres the court? in the gutter?

  12. I have never been an appointed or elected judge but have served as special or pro tem judge in hundreds of cases, primarily on uncontested divorce days, but with several meatier matters as well. Judges are human and I, like all judges, am a product of my experience and have reached my own conclusions about what is fair and what is not in administering justice at the trial level in consonance with the Constitution and decided cases. When playing judge I have always had a talk with myself, pledging to set aside my prejudices borne of experience as best as possible and giving a fair consideration to the interests of all the parties before me in the secure knowledge that an appeal would erase my errors, if any.

    One would hope as a good citizen that judges appointed by the president and various governors are selected on the basis of their known legal acumen and fair-handed treatment of the parties before them rather than having already if secretly decided the merits of the case per their own biases and conducting the trial in such a way (and for the record in case of appeal) as to fortify the grounds for their already decided opinion. Trump’s choice of Federalists’ choices for judge over those recommended by the ABA tells us that he is only interested in appointment of judges who have demonstrated right wing instincts in following the political passions of the day, i.e., his passions.

    Result? Bad case law at the trial level and much heavier appellate dockets for correction. A better late than never solution? Elect presidents and governors who will select experienced jurists approved by the ABA who have a demonstrated record of fair play in decision making based on the rule of law rather than political noise from some prejudiced political hack or Fox News.

  13. Back in the day we could live with the percentage of American who were apathetic voters, not very motivated to express their preference for who governed. Now it’s different. About a third of us have become addicted to fake news and fall for the programming propaganda of those who can afford a loud voice shouting “All of those others are stealing from you but you can trust me and only me not to”. While of course their hands are deep in everyone’s pockets stealing everything that they can.

    We have to find ways of drastically reducing the apathy and at the same time increasing the unity of those who would restore the country to its former not ever good enough but never not trying to be.

  14. Right now we’re in a political freefall. Using the Nazi Playbook as an instructional guide:

    First comes the TRANSFORMATION, the loss of all vestiges of democracy, in Germany it was the destruction of the Weimar Republic. The second stage is the TRANSITION, in Germany, it was a new form of authoritarianism, NAZISM.

    A much better literary guide would be “The Apartheid State in Crisis-Political Transformation in South Africa 1975-1990” by Robert M. Price (Oxford University Press, New York, 1991).

    The $64,000 question is: Are we going down the German or the South African route?

    If the enemies of Donald Trump don’t become friends, then more than likely we will stay on the German route toward a FANTASIZED VICTORY and probably will incur a similar result that they had.

  15. An organizational model would be DESERT SHIELD during the war against Sadam Hussein. In that successful model, you had Israel and Arab states united against a common enemy.

    Is a similar FRONT possible here in the U.S.? Unfortunately, not at the present time.

  16. Todd,

    “However, as an international report just concluded, the USA is no longer a beacon of democracy…in fact, we’ve dropped out of the Top 20.”

    That’s why, for the past two years, I tweet in Sweden and not the U.S. It’s important to stay in touch with reality. Anyone who believes that America is a democracy is living in a “fool’s paradise.”

    When will we wake-up? Probably when it will be too late.

  17. Todd,

    I don’t believe there is anyone in America who can communicate the values of American democracy better than Professor Kennedy.

    I’ve been back 4 days and can tell Sheila is losing much of her worldwide audience, from an examination of the analytics I receive on a daily basis from Godaddy, pertaining to my site:

    I’m sure we all know by this time, there is no one who can take her place.

    If anyone doubts the above information, I will be glad to provide them with the statistics.

  18. To conclude:

    I hope some of you understand, after more than three years, all I have been trying to say on this blog is that we are being “royally screwed.” [please forgive my language]


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