Sheila – Page 129 – Sheila Kennedy

Judges And Politics

American government operates through Separation of Powers–what we all (hopefully) learned in school is the division of governance into three branches: the Executive, the Legislative, and the Judicial.

The basic idea was that the legislature would pass laws, the Executive branch would enforce them, and the Judicial branch would ensure that both the laws and the methods of their enforcement were consistent with the Constitution.

It has always been more complicated than that, of course, but it is important to keep that basic framework in mind–especially the fundamental role of the judiciary. That role requires that judges be insulated from partisan politics to the extent possible–that they be free to decide cases on their merits. They may err, but the goal is to put on the bench people who will put aside their personal policy preferences and “call ’em like they (honestly) see ’em.” Even today, most do.

Partisans have always grumbled about the judicial branch. When a court strikes down a politician’s pet legislation, accusations of “judicial activism” are never far behind, and efforts to place partisan ideologues on the bench are nothing new.

What is new is the degree to which partisans and autocrats are acting to politicize and capture the courts–and not just in the U.S.

In Israel, Netanyahu’s far-right administration has stirred up a hornet’s nest by advancing measures that would allow that administration to control the courts. In Hungary, Victor Orban has tightened his control over that country’s Courts.There are other examples, and they all threaten democratic accountability.

America’s Founders tried to insulate the federal judiciary from political pressure by granting judges lifetime tenure.(People didn’t live as long back them, and thoughtful critics suggest that terms limited to 18 or so years could achieve the same goal.) Many states also employ judicial selection systems meant to minimize the influence of partisanship and politics –requiring local bar associations to evaluate nominees, and creating bipartisan judicial nominating commissions. These mechanisms do not–cannot–completely remove partisan politics from the process, but they certainly help.

The effort to minimize partisanship on the bench is consistent with the Founders’ effort to create a judicial system meant to check misbehavior by the other two branches. Both the legislative and executive branches were designed to answer to the voters; the judiciary was intended to answer to the Constitution and to keep the other branches tethered to the rule of law.

Over the years, political activists and ideologues have succeeded in eroding that fundamental distinction between the branches by the simple expedient of judicial elections.

When judges are elected, partisanship is inevitable. The current campaign for Wisconsin’s Supreme Court should be sufficient to erase any doubt. The candidates have made no bones about their contending political ideologies:

Officially, the race is nonpartisan, but one candidate is closely aligned with Republicans and the other with Democrats. The state parties and dark-money groups are the biggest spenders in the race.

Milwaukee County Judge Janet Protasiewicz shored up Democratic support early in the race and easily rolled through Tuesday’s primary. She has said she backs abortion rights and condemned the election maps as “rigged.”

Conservatives were more bitterly divided, leading to a contentious fight for the other spot on the general election ballot. Emerging from the primary was Daniel Kelly, who was appointed to the state Supreme Court in 2016 by Gov. Scott Walker (R). While campaigning, Kelly — who lost his seat in a 2020 election — has touted his rulings to allow concealed guns on city buses and end the coronavirus lockdown imposed by Gov. Tony Evers (D).

Given how blatantly all four of the run-off candidates trumpeted their very different approaches to the law, it was ironic that conservative Kelly accused liberal Protasiewicz’s of promising to “set aside our law and our Constitution whenever they conflict with her personal values,” while characterizing his own ideological preferences as fidelity to the Constitution.

Protasiewicz has rebuffed such attacks, saying she isn’t prejudging cases but letting voters know her values. She has criticized Kelly for his rulings and the endorsement he received in 2020 from Donald Trump.

My interpretations of the Constitution and Bill of Rights are more in line with those of Protasiewicz, so–from an “outcomes” standpoint– I found the runoff election results comforting: (Protasiewicz had 46 percent of the vote, Kelly had 24 percent, and Protasiewicz won areas of the state that are normally heavily Republican.)

That said, given current levels of American civic literacy and Constitutional knowledge, voters aren’t deciding which judicial candidate’s approach to the law is most consistent with the Constitution. Instead, they are encouraging the judiciary to identify with partisans in the other two branches–to choose a side.

If you don’t think that’s dangerous, think about Orban and Netanyahu.

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The Challenges Of Modern Life

The Supreme Court’s docket this year has two cases that will require the Court to confront a thorny challenge of modern life–to adapt (or not) to the novel realities of today’s communication technologies.

Given the fact that at least five of the Justices cling to the fantasy that they are living in the 1800s, I’m not holding my breath.

The cases I’m referencing are two that challenge Section 230, social media’s “safe space.”

As Time Magazine explained on February 19th,

The future of the federal law that protects online platforms from liability for content uploaded on their site is up in the air as the Supreme Court is set to hear two cases that could change the internet this week.

The first case, Gonzalez v. Google, which is set to be heard on Tuesday, argues that YouTube’s algorithm helped ISIS post videos and recruit members —making online platforms directly and secondarily liable for the 2015 Paris attacks that killed 130 people, including 23-year-old American college student Nohemi Gonzalez. Gonzalez’s parents and other deceased victims’ families are seeking damages related to the Anti-Terrorism Act.

Oral arguments for Twitter v. Taamneh—a case that makes similar arguments against Google, Twitter, and Facebook—centers around another ISIS terrorist attack that killed 29 people in Istanbul, Turkey, will be heard on Wednesday.

The cases will decide whether online platforms can be held liable for the targeted advertisements or algorithmic content spread on their platforms.

Re-read that last sentence, because it accurately reports the question the Court must address. Much of the media coverage of these cases misstates that question. These cases are not about determining whether the platforms can be held responsible for posts by the individuals who upload them. The issue is whether they can be held responsible for the algorithms that promote those posts–algorithms that the platforms themselves developed.

Section 230, which passed in 1996, is a part of the Communications Decency Act.

The law explicitly states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” meaning online platforms are not responsible for the content a user may post.

Google argues that websites like YouTube cannot be held liable as the “publisher or speaker” of the content users created, because Google does not have the capacity to screen “all third-party content for illegal or tortious materia.l” The company also argues that “the threat of liability could prompt sweeping restrictions on online activity.”

It’s one thing to insulate tech platforms from liability for what users post–it’s another to allow them free reign to select and/or promote certain content–which is what their algorithms do. In recognition of that distinction, in 2021, Senators Amy Klobuchar and Ben Ray Lujan introduced a bill that would remove tech companies’ immunity from lawsuits if their algorithms promoted health misinformation.

As a tech journalist wrote in a NYT opinion essay,

The law, created when the number of websites could be counted in the thousands, was designed to protect early internet companies from libel lawsuits when their users inevitably slandered one another on online bulletin boards and chat rooms. But since then, as the technology evolved to billions of websites and services that are essential to our daily lives, courts and corporations have expanded it into an all-purpose legal shield that has acted similarly to the qualified immunity doctrine that often protects policeofficers from liability even for violence and killing.

As a journalist who has been covering the harms inflicted by technology for decades, I have watched how tech companies wield Section 230 to protect themselves against a wide array of allegations, including facilitating deadly drug sales, sexual harassment, illegal arms sales and human trafficking — behavior that they would have likely been held liable for in an offline context….

There is a way to keep internet content freewheeling while revoking tech’s get-out-of-jail-free card: drawing a distinction between speech and conduct.

In other words, continue to offer tech platforms immunity for the defamation cases that Congress had in mind when Section 230 passed, but impose liability for illegal conduct that their own technology enables and/or promotes. (For example, the author confirmed that advertisers could easily use Facebook’s ad targeting algorithms to violate the Fair Housing Act.)

Arguably, the creation of an algorithm is an action–not the expression or communication of an opinion or idea. When that algorithm demonstrably encourages and/or facilitates illegal behavior, its creator ought to be held liable.

It’s like that TV auto ad that proclaims “this isn’t your father’s Oldsmobile.” The Internet isn’t your mother’s newspaper, either. Some significant challenges come along with the multiple benefits of modernity– how to protect free speech without encouraging the barbarians at the gate is one of them.

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What I Don’t Know Can’t Hurt Me. Really?

Among the things that make me crazy: one is the GOP’s obvious belief that education and academic research are dangers to be avoided at all costs.

Does evidence show that having guns in your home is dangerous? How many people commit suicide using a firearm? Are guns more lethal than other weapons? Whoa! If government allowed research into those questions, it might divest you of your God-given right to carry your AR-14 in the canned goods aisle of your local Kroger.

As Politico reported back in 2018,

House Republican appropriators Wednesday rejected a proposal to designate millions of dollars for the Centers for Disease Control and Prevention for gun violence research, voting 32-20 to keep the language out of a fiscal 2019 spending bill.

The party-line vote marked Democrats’ latest failed bid to spur studies into preventing firearm-related injuries and deaths — and comes despite a bipartisan agreement earlier this year that the CDC is permitted to conduct such research.

Republican opposition to any and all gun research has been a problem for years, but guns are only one area of research that the party wants to shut down. Yesterday, the Indianapolis Business Journal reported on a vote from the World’s Worst Legislature stripping funding from the Kinsey Institute.(paywall)

That vote was apparently based upon “disputed allegations” by one of Indiana’s many rightwing GOP wacko’s. This one insisted that Kinsey’s research had been child exploitation and that the institute’s research into human sexuality contributed to “liberalized sexual morals, including more acceptance of homosexuality and pornography.”

According to the AP,

Alfred Kinsey, who died in 1956, produced groundbreaking sex-behavior studies in 1948 and 1953 and was portrayed by Liam Neeson in the 2004 film “Kinsey.”

Republican Rep. Lorissa Sweet claimed that some of Kinsey’s research was child exploitation as she argued for an amendment to the state budget bill against funding for the institute.

“By limiting the funding to Kinsey Institute through Indiana University’s tax dollars, we can be assured that we are not funding ongoing research committed by crimes.” Sweet said.

Democratic Rep. Matt Pierce, whose Bloomington district includes the university campus, responded that Sweet’s claims were “based on old unproven allegations of conspiracies that did not exist,” calling them “warmed-over internet memes that keep coming back.”

Pierce said the university maintained a department that ensured all research involving humans met federal laws and that the Kinsey Institute aimed to better understand human sexuality, including how to treat and prevent sexual predators and pedophiles.

All House Democrats voted against the measure; they were joined by seven (presumably more rational) Republicans. The bill specifically prohibits any use of state money for expenses– including the institute’s on-campus facilities, research work, utilities, office supplies and maintenance of research photographs or films.

Pierce said the institute’s funding was being exploited as a “culture war” issue and that it would simply create bookkeeping problems for the university to use sources such as outside grant funding or student tuition to support it.

It is painful for those of us who belonged to the GOP when it was an actual political party to recognize its transformation into a cult whose members routinely chant “don’t confuse me with facts.” There’s a reason today’s GOP is increasingly compared to the Know-Nothing Party. This vote in Indiana’s House confirms the aptness of that comparison.

Research and scholarship aren’t just integral to succeeding in school or in many professions. In a rational world, research informs action. Researchers gather evidence in order to test the theories and factual assumptions upon which both governments and individuals act.

Americans on the far right of the political spectrum–especially White Christian males– are frantically opposed to a number of social changes: the unwillingness of today’s women to be properly subservient, the belief that people of color and LGBTQ+ citizens are entitled to equal treatment by both the law and the institutions of civil society. They see accurate education and the conduct of research as breeding grounds for those changes.

In every era, there are people who respond to social change by yelling “stop the world, I want to get off.” They are a minority, and would be far less threatening in the absence of several outdated structural elements of American politics–especially gerrymandering and the Electoral College–that have entrenched governance by that distinct minority.

An essay in Psychology Today quoted “Ode on a Distant Prospect of Eton College,” for the saying“Where ignorance is bliss, ’tis folly to be wise.”

But is it? Let’s look at what results from ignorance: avoidance of facts and information, a skewed view of the world where you don’t want to learn more about something, a desire to label and judge something you might not fully understand, and a general lack of knowledge about the world around you.

In other words, today’s GOP.

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When Does Consistency Matter?

We’ve all heard the quote–attributed to Emerson–decrying “foolish consistency” as the “hobgoblin of little minds.”

The phrase requires us to distinguish between the sort of consistency that signals a thoughtful intellect and the “foolish” consistency that Emerson disdained.

I have recently concluded that the distinction is critical to a proper evaluation and interpretation of today’s partisan political arguments.

Many of us still remember the critique of John Kerry when he was running for President; he was widely mocked as a “flip flopper” because he’d changed his position on some issue. I no longer recall what the issue was, but I do recall his entirely appropriate response, which was along the lines of “when I encounter facts of which I have previously been unaware–when I learn more about a subject–I change my position to accord with those facts.”

When scientists discovered that disease is caused by germs, and entertained the possibility that smallpox hadn’t been sent as a punishment from God, as many had thought, that inconsistency led to the development of medicines and vaccines. Human progress requires the recognition and correction of error. “Consistency” in such matters would merit Emerson’s scorn.

On the other hand, right now, one of the thorniest problems of American governance is the large number of elected officials–almost all Republicans– who absolutely refuse to change or reconsider their beliefs even when faced with credible contrary evidence. Their stubborn refusal to modify their positions even after those positions have become logically and factually untenable is a perfect example of Emerson’s “foolish consistency.” (No one can call them “flip-floppers”!)

When ideologues refuse to rethink or reconsider mistaken positions, the resulting incoherence is arguably worse than the temporary confusion that often accompanies necessary change.

Ideological rigidity and a refusal to recognize how hypocritical their resulting messages sound is an obvious trait of today’s GOP. Ironically, in their refusal to rethink or reconcile incompatible articles of faith, Republicans are struggling to apply a totally incoherent political philosophy to issues that really do require a measure of intellectual consistency.

A few examples will illustrate that incoherence:

Free markets are good because they expand choice. Individual choice is an integral part of freedom and a public good–unless, of course, we are talking about women’s reproductive choice, because that’s bad.
Religious folks should be allowed to act on the basis of their sincere beliefs, even if those actions disadvantage other people. But those accommodations shouldn’t extend to adherents of non-Christian religions or to liberal denominations that permit abortion.
Parents should be given the right to exercise very broad choices when it comes to how they raise and educate their children–unless, of course, mom wants to take Junior to Drag Queen Story Hour at the local library, or give Junior’s teenage sister free reign to read whatever might be on those library shelves.
Parents should be trusted to do what’s best for their children–unless they’ve decided to work with medical professionals to help their children cope with gender dysphoria, or manage transition.
Business owners should be free of heavy-handed government regulations; after all, those owners and managers know best how to create jobs, serve their customers and make a profit. But government shouldn’t allow them to factor “woke” concerns about inclusion and the environment into their business decisions.
Welfare programs just encourage dependency; hard-working taxpayers shouldn’t have to support people who can’t or won’t make it on their own. But those taxpayers definitely should continue to fund the huge annual subsidies that further enrich profitable corporations and obscenely profitable fossil fuel companies. That’s not welfare, that’s economic development.

In all fairness, there really is a consistency lurking beneath these surface incompatibilities: theocratic consistency.

If we approach those examples from the perspective of a Christian Nationalist, the seeming disparities become far more cohesive. The lawmakers and pundits who hold these otherwise inconsistent positions are operating out of a theocratic conviction that they should have the right to impose their “sincerely held” religious beliefs on everyone else–after all, they are the “real” Americans, listening to the “real” God.

Even the clear influence of money in all this has a theocratic element–U.S. policy has always been influenced by a corrupted version of Calvinism–the belief that financial success is evidence of moral righteousness, and that poverty is a sign of God’s displeasure.

Speaking of hobgoblins….

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Business? Or Profession?

I suppose it comes down to ethics, and the different ethical concerns applicable to different ways of making one’s living.

If I were to open a shop, my primary focus would be on my bottom line. I would certainly be obliged to operate honestly, and to treat my customers and employees fairly, but the primary focus of business is making a profit.

We have the right to expect doctors, lawyers, and other professionals to abide by additional ethical obligations–standards appropriate to the practice of those professions.

Journalism is one such profession–and when major news organizations are owned and managed by entrepreneurs focused solely on the bottom line, citizens are robbed of one of the most important protections of small-d democracy. When a purportedly “fair and balanced” media ignores any obligation to truthfulness in order to make money pandering to the biases of a designated portion of the population, the result is increased polarization leading to civic unrest and even violence.

Which brings me to recent revelations about Fox “News.”

In the weeks after the 2020 election, Fox News faced an existential crisis. The top-rated cable news network had alienated its Donald Trump-loving viewers with an accurate election night prediction for Joe Biden and was facing a terrifying ratings slide, not to mention the ire of a once-loyal president.

Concern came from the very top: “Everything at stake here,” Rupert Murdoch messaged Fox News CEO Suzanne Scott.

The billionaire founder was eager to see the Republican candidate prevail in the coming Senate runoff in Georgia — “helping any way we can,” he wrote. But he also advised Scott to keep an eye on the uptick in ratings for a smaller, more conservative channel whose election skepticism suddenly seemed to be resonating with pro-Trump viewers.

Newly released messages show Fox executives fretting that month over an uncomfortable revelation: that if they told their audience the truth about the election, it could destroy their business model.

It is one thing to protect the Free Speech rights of news outlets and reporters who are simply mistaken, or for commentators to report matters that they believe to be true, even when they aren’t. But Fox folks weren’t mistaken. They knew they were lying. The network abandoned its professional obligations in order to protect its bottom line. It gave its audience the lies that audience wanted desperately to believe.

What Fox’s loyal viewers wanted to watch — and what Fox News was willing to do to keep them — emerged this week as a central question in a $1.6 billion defamation lawsuit brought against the network by Dominion Voting Systems.

As it conducted discovery in that lawsuit, Dominion uncovered reams of internal correspondence and other evidence, information that became public last week via a court filing. The evidence showed Fox executives and on-air stars privately dismissing the “wild and false claims of a stolen election” that they proceeded to promote on air.

“Sidney Powell is lying,” prime-time star Tucker Carlson wrote to his producer about a Trump lawyer who had appeared on Fox and spewed baseless accusations. “There is NO evidence of fraud,” anchor Bret Baier wrote to one of his bosses.

The linked article quotes from numerous internal communications demonstrating that Fox willingly and knowingly lied in order to protect its “market share.”

As another article on the disclosures reported, a network executive in charge of prime-time programming warned that Newsmax’s brand of “conspiratorial reporting might be exactly what the disgruntled [Fox News Channel] viewer is looking for.” As a result, he added, Fox should not “ever give viewers a reason to turn us off. Every topic and guest must perform.”

A lawyer who knowingly misrepresented the law in order to keep a paying client would risk being disbarred. A doctor who knowingly misdiagnosed a patient in order to keep the dollars flowing would risk losing his medical license. Although the Society of Professional Journalists has promulgated a Code of Ethics, I am aware of no similar enforcement mechanism.

The primary ethical obligation of journalists–as set out in that Code of Ethics–is to: Seek Truth and Report It. That includes fact-checking, not intentionally distorting information, identifying sources, avoiding stereotypes, and supporting the open exchange of opinions. Most non-MAGA Americans already understood that Fox disdains and ignores those ethical obligations, but it is really stunning to read internal communications showing utter contempt for truth or fidelity to fact.

In the absence of a professional body able to impose sanctions for blatant ethical violations, Dominion’s lawsuit has done America a great service. Whether the unarguable evidence will be sufficient to awaken even a small percentage Fox’s devoted MAGA viewers is, of course, a different question.

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