Why Judges Matter

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Here in Indiana, in recognition of the pandemic, the state’s Election Commission authorized mail-in voting without excuse for the recent primary election. Thus far, they are refusing to allow no-excuse voting by mail in November.

Hey, we’re a Red state, and–in defiance of available data that says neither party benefits from voting by mail–the GOP is convinced that making it easier to vote will help the Democrats. (Besides–as I pointed out recently–mail-in ballots make it impossible to play the minority-vote-suppressing games Republicans have long played in this state.)

Given this official intransigence, several individuals and Indiana Vote By Mail have filed suit in federal court, asserting that the denial violates the constitutional rights of voters, and asking that the judge order the Election Commission and Secretary of State to authorize no-excuse mail ballots.

The complaint notes that these officials “have failed to take necessary actions to protect Indiana voters” and that as a result, many voters will have to make a choice between their personal safety and health, and exercising their right to vote. They want the court to rule that they can cast an absentee ballot “in precisely the same manner in which these same election officials have allowed in the June 2 primary election.”

The pleading points out that a majority of Hoosiers are vulnerable to COVID-19, that the disease is potentially fatal, and that it is readily spread from person to person. They offer medical testimony to the effect that it is “highly likely” to be with us in November, and that  minimizing the risk requires people to “spend the shortest amount of time in the best ventilated, least contaminated environment, where the fewest number of people are generating the fewest virus particles.”

The pleadings identify a variety of ways in which the refusal to allow absentee voting under these circumstances violates the constitution–especially Equal Protection–and cite dozens of cases in support of that argument. (Interestingly, they also cite the 26th Amendment, which prohibits abridging the right to vote due to age. Data suggests that refusal to allow no-excuse absentee voting disproportionately harms the elderly.)

It’s been quite awhile since I was a practicing lawyer, but as I read the pleadings, the plaintiffs make a strong–even conclusive– case. And here’s the “teachable moment,” as we in academic life like to say:

  • The right to vote is one of the most important rights Americans (presumably) enjoy. Every other right ultimately depends upon the conduct of fair elections in which the voice of the people–all of the people–is reflected and honored.
  • When government officials representing the executive or legislative branches act in ways that threaten American liberties–not just our right to cast ballots, but the other rights guaranteed by the Constitution–the courts are our only redress  short of violence. If the judiciary is corrupted, we’re up that creek without a paddle.

For the past three and a half years, Mitch McConnell and the GOP have been intent on corrupting the federal judiciary, confirming ideologues and partisans to lifetime positions, despite the fact that many of them aren’t qualified to be on the bench and have demonstrated no commitment to the rule of law.

Politically, arguments about the importance of the judiciary have tended to be about reproductive rights, but overturning Roe v. Wade is just a minuscule part of the damage that can be done when the courts can’t be counted on to restrain nakedly partisan infringements of the Constitution.


  1. It is scary to think about the chances of one of the Senate’s recent confirmations getting this case, and then having three others, on an Appeals Court, confirming that the decisions of a partisan state government are absolute.

  2. I suspect that if the Dems retake the Senate the Judiciary Committee chair will be very busy conducting investigations and impeachment proceedings of incompetent and/or political hack federal judges. If she’s not our Vice President I can only hope that Kamala is the Committee chair.

  3. Political affiliation aside; I had voted Absentee Ballot in two previous elections here in Indianapolis, I am 83 years old, totally deaf and physically disabled so qualify for that benefit. In November 2016 my polling place had changed from a nearby church to a large medical facility at East 10th and Arlington. There were 4 or 5 precincts using this site in a small, tightly cramped room; parking was limited due to size of crowds with many of us parking on grassy areas around and behind the building. I was “manhandled” by a large woman who grabbed my upper arm, the one holding my cane, and shoved me through the crowd to a ballot machine which refused my ballot twice, then pushed me to another machine which accepted it. I have always been proud to go to the polls and show my support for my right to vote; when I received the initial application for Absentee Ballot I gladly accepted after my experience in the farce of the presidential election.

    All of this leads me to the current obfuscation of mail-in voting which happens to be during the Covid-19 Pandemic and the leaderless rule of the current administration who fears mail-in votes much more than they do the Pandemic. Will those of us who have REASON to NEED access to mail-in voting be allowed to continue to do so in this Red state, the former home of Vice President Pence and lead ass-kisser to Trump? Don’t believe for one second that Pence being in Washington, D.C. has removed his Republican powers from this state; they have probably been increased.

    Will the local Republican judiciary system make the decision regarding mail-in voting by simply ending it for all voters to protect Trump and Pence?

  4. NoDak has same day registration,and vote.mail ins good,because of remoteness,and work is usually farm and ranch related,cutting down on the costs,of voting.(since this state is as tight as bark on a tree) being snow white here,or damn near, i wonder how long it will last. the city of Bismarck and Fargo/Moorehead is diversifying. ive been here since 1987 and over the past decade, its finally showing some color.. our judges here are all right wing. if you have a workman comp claim,your hiring a lawyer to get any benifits,whereas,the people at the work comp office can make such a decision,they seldom do,leaving you to appeal the issue,and hire a lawyer..now you have a rightwing court to deal with. unless your arm is cut off or your sealed to a bubble,dont expect much.. were way ahead here.. mcconnel is just catching up..

  5. Well of course judges matter, that’s why they blocked Barack Obama’s appointment of Merrick Garland. And, why the turtle is ramming through all of these judgeships and packing the court with toadies. I remember Barack Obama sounding the warning, when all the factions were complaining about Hillary Clinton, including the New York Times! He said that elections have consequences, it wasn’t so much the presidential issue, although, you can see he saw the handwriting on the wall. As a constitutional lawyer, scholar, and professor, he knew, with a certainty, the GOP was going to lay waste to the judiciary. And that’s exactly what’s happened, thereby greasing the skids to authoritarianism and fascistic nationalistic dogma!

  6. It doesn’t take a constitutional scholar to understand just how important the judiciary is to our lives. After all, 45’s followers certainly get it. The next Congress needs to establish a judicial review panel whose job it is to make sure that federal judges uphold the law and prepare evidence for impeachment articles when they do not.

  7. Some of The Trumpeter’s that I know in person admit The Trumpet has “fumbled” with his handling of Corona but especially the protest marches. However, they are two issue people, vehemently anti-abortion and Pro-Guns. Thus, they support the appointment of Reactionary Right Wing ideologues to the courts.

    As I have written here and others have too, these hard core Trumpeter’s will vote GOP no matter how nasty the GOP candidate is as long as they are anti-abortion and Pro-Guns.

    When I mention “gun control” to these people some have come back with all the stabbing deaths in the UK. Knife-related homicides took 285 lives in England and Wales from March 2017 to March 2018 – a record since data collection began in 1946.

    Just for perspective: There were a total of 171 homicides in Indianapolis in 2019. Indiana Total 2018 murders: 438. Facts and total information mean nothing to these Trumpeter’s, they have assimilated some talking points and never look beyond them, a severe lack of critical thinking skills.

  8. What changes need to be made in the law to prevent this assault on democracy and freedom? Is the Constitution no longer adequate in protecting our rights?

  9. Monotonous Languor: Wow, we must have the same friends. They are on the spot with a list of canned NRA talking points with exact numbers and percentages, effectively shutting down any chance for meaningful rebuttal without an hour of research, and then refusing to listen to any thing any way.

    And you are right. While the whole point of stacking the judiciary is to protect those 2nd amendment rights and overturn Roe v. Wade, the baby goes out with the bath water along with every thing else when logic, reason, and the rule of law no longer apply to the judiciary.

  10. Pete – The Constitution in and of itself fits Hitler’s description of The Treaty of Versailles, i.e., it’s just a piece of paper – UNLESS ENFORCED – and enforcement is the task of the judiciary. State and federal legislatures should craft their bills with this in mind but are too often crafting them to suit the aims of specific donors and ALEC or others who command substantial segments of one issue voters (see guns, abortion and other such narrow issue voters). One issue voters (even if I agree with such view) suggests that Sheila’s occasional plaint in re lack of civic education is accurate. We have work to do.

  11. Issue-focused politics is one of those myths that kill.

    Character-focused politics is rare, but it is the only practical way to reduce the number of office holders who are inept/evil but hold office because they favor one issue or another.

    Why do schools, the one’s that still teach a semblance of government or citizenship, insist on teaching people to select candidates on the basis of issues? It’s just another way to promote the Me-First philosophy. And yes, most if not all of you on this blog proceed with your comments as if issues have been ordained by some mysterious lord from an equally mysterious intellectual throne as the sole criteria for political sorting.

    Issues are not useful nor safe criteria for sorting politicians.

    My parents, in the first quarter of the 20th century were taught to sort candidates by character, and their generation would never have elected Trump. My government teacher in high school at mid-century also taught to sort by character. I don’t recall the idea of issue-driven politics ever coming up in class or book. And voters then would never have elected Trump. But in college in the late-1950s and early 1960s I noticed the issue idea becoming fad. And all of you fell for it. Fad. Fashion. Follow the piper. And you and your faddish, murderous issue-supremacy myth elected Trump. Over the cliff we went.

    I’m disgusted. I have no hope for peaceful improvement.

    A civil war, once more over issues, offers at least the most antiseptic instrument of all–death– the tool most clearly designed for sorting character and dogma and thus may be just the thing to rid us of this issue-supremacy idea.

  12. Patrick – i hope you are correct about investigations and impeachments but i have real doubts. That doesn’t seem like Joe to me so it will take each of us putting pressure on our party. I can hear the centrists now talking about how we need to look forward and ignore the past. After all, who can forget the long line of criminal bankers getting sent to Federal prisons for ruining the lives of MILLIONS of Americans. We can not let these criminals get away with lawlessness. Start with Kavanaugh (perjury anyone) and then move down the rest of the sewer that is the Republican judiciary. Has there ever been a bigger swamp??

  13. I’d like to focus on this teachable point:

    “…the courts are our only redress short of violence.”

    Do you mean like the current violence occurring across the globe?

    The corporate-controlled judiciary ruled that corporations are people and could contribute as much money as possible to control our two-party system. So, one corrupted institution now controls another, and so on, and so on.

    A Twitter user recently tweeted:

    “Never forget the government only gave you $1,200 to survive for a near 4-month quarantine but gave corporations billions.”

    Furthermore, Trump is protecting the names of the corporations by firing the Inspector General overseeing the ATM and refuses to provide names to the press.

    I guess “violence” is the answer. Maybe we need more people in the streets–not less.

  14. Larry, I think that you have hit on a critical point at least for me.

    I had mentally sorted out my political focus this year to be, for the first and, hopefully, last time ever to support a single party for all races (local excepted). Blue no matter who. I have always been uncomfortable with single party or issue voting therefore even saying that’s what I’m going to do sounds some alarms.

    As I think about the state of things though my surprising to even me direction is better understood by thinking about character focused voting.

    While the march of the GOP has been a long time coming the hostile takeover of the party by Trump in 2015 and 2016 has taken them from the direction that they were heading to the extremes of it and now the epithet “Trumpublican” is accurate. The whole party now seems defined by Trump’s total lack of character.

    Perhaps that is best understood by considering Democrats as “Obamacrats”.

    In my mind that crystalizes how essential blue no matter who is even if it’s true that Biden is no Barack what’s sure is that Trump is Trump and has demonstrated beyond the shadow of doubt how unqualified he is by the only character that he’s ever displayed.

  15. Monotonous; regarding those stabbing deaths, the UK has strict gun control and I believe their police still do not carry guns. This country gun control is more a license to kill that a preventative measure; some states such as Indiana cannot have any lower gun control other than doing away with what they have. Maybe $50 off coupons in boxes of Cheerios?

    My Uncle Don of Don’s Guns lobbied for years for Indiana to enact the same background checks on all “long guns” as it had on hand guns; instead Indiana lowered requirements on purchase of hand guns. Uncle Don went back to just selling guns and made a few more million. During late in President Obama’s last term he was visiting Chicago and made a persona appearance which he opened to question and answer at the and. Someone questioned him about the extremely high murder rate in Chicago; he said the more than half of the guns confiscated in all crimes in Chicago that year had been purchased in Indiana due to our extremely lax gun control.

  16. Pete @10:09am:
    “What changes need to be made in the law to prevent this assault on democracy and freedom? Is the Constitution no longer adequate in protecting our rights?”

    We need a constitutional convention attended by independent citizens outside of government offices to establish a new charter for approval by the people.

    Like the first one, popular input will enable new standards and eliminate some toxicity, clean out dusty laws and amendments. Do we have the patience and time for such a plan? We did, in 1789 and we have the equivalent now of the Insane King George The Third.

    Start with a constitution revision commission and see what develops. Would it benefit our civic
    consciousness? Would it spur participation? Would it resurrect the best of leadership? Would it enable filtering out misfits never to be suckered in again? Would there be a way to exclude money (in lieu of talent) from the equation? Would the so-called 40% support such a plan?

    Must we not do something to reverse the present disaster? Are we depending on the November elections to relieve us? How about the terrible risk of another four years? Is it the Senate majority preventing us from removing this pandemical administration?

  17. These “vote for the man (or woman”) idealized means of choosing our representatives in government is fine so long as everyone plays by the same rules in making such choices. Republicans don’t; they play by rules that are at odds with the common good. I therefore have little choice but to vote for party – and especially this year with a demented one at the helm along with his greedy sycophants all the way from state legislators through federal senators and representatives as well as judges (where they are chosen by election). I’ll save my voting idealism for another day.

  18. Gerald – –
    Exactly my Long-time plan. “Once more into the breach” SIMPLE – just vote BLUE. Saves time and grey matter. Gotta use the only power I have to upset this usurper and his minions.

  19. Peggy,

    Obviously, it does take a constitutional scholar! Because when this stuff was brought up before Obama ever left office, everybody blew it off! This was brought out in blogs by some of us, I still have my posts.

    The judiciary can green-light anything, or, they can put the kibosh on almost everything. The plot was a well designed and extremely obvious to some folks, but the majority blew it off. Now it’s a big deal!

    That’s where forsight comes in, being able to extrapolate the events and their logical progression to a specific end! Unfortunately, that’s not a skill that many of the so-called left liberal intellectuals possess. Always reactionary and never preemptive, everyone’s a genius, until they are not.

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