Author Archives: Sheila

An Unfit Judicial Nominee

Apologies for inundating your inboxes yesterday. The post was sent by accident–it was scheduled for January 1st and will repeat then. Mea culpa. (When I’m in a hurry…)

Speaking of the courts, as I did yesterday, an Indiana lawyer named Justin Olsen has been nominated for a judgeship by Donald Trump. He is apparently as qualified as the members of Trump’s cabinet…which is to say, not.

The first clue was his rapturous introduction by Indiana’s White Christian nationalist Senator, Jim Banks. And while Bank’s endorsement should really have told us all we needed to know, a google search turned up a lot more.

Trump has nominated Olsen to fill a vacancy in Indiana’s Southern District federal court. A brief review of Olsen’s confirmation hearing certainly confirmed one thing–he is manifestly unfit to join that respected and respectable bench.

The Indiana Lawyer has reported on the “highlights” of that hearing.

Not only did Olsen refuse to say that Joe Biden had won the 2020 election, he refused to respond to questions about the insurrection of Jan. 6th, saying only that those events were a ‘matter of public controversy.” He even declined to offer an opinion on whether those events–videos of which were widely publicized– constituted an assault on the U.S. Capitol.

His responses to other questions–even friendly questions from Republican members of the committee–elicited beliefs that only Samuel Alito could love.

Olsen was asked about a sermon he had delivered as a Reformed Presbyterian elder, in which he  opined that people with disabilities should not marry, that having sex outside of marriage was a “form of sexual perversion,” and that wives should be subservient to their husbands. He responded that it was the doctrine of the church he was attending that fornication is a sin, and in response to a question about wives being subservient to their husbands, his response was that he believed “every word of the Bible.” (Presumably, if he is confirmed, that “biblical belief” would supercede any pesky, contrary constitutional precedents.)

Excuse me, but belief in “every word” of the bible requires ignoring that good book’s multiple contradictions.

Respected theologians have pointed to numerous passages in the bible that contradict each other. For example, Samuel 17:50 says David killed Goliath, but in Samuel 21:19, it says Elhanan kills Goliath the Gittite. Matthew 27:5 says Judas hanged himself, but Acts 1:18 has Judas falling headlong, bursting open with his intestines spilling out. Malachi 3:6 says God doesn’t change his mind, but Genesis 6:6 says God regrets creating humanity, and Jonah 3:10 tells us that God changed His mind about destroying Nineveh. There are numerous other examples–typically ignored by the so-called “biblical literalists” who use their “piety” as an excuse to impose their favored beliefs on others and who cherry pick their bibles for the passages that can be used to support their biases.

His selective “biblical” beliefs have evidently animated Olsen’s previous legal work. As the Indiana Lawyer reported,

When Trump nominated Olson, he prominently touted that that Indiana attorney has been representing three former University of Pennsylvania women swimmers that sued Penn, Harvard University, the Ivy League and the Indianapolis-based NCAA for alleged Title IX  violations by allowing transgender swimmer Lia Thomas to compete on Penn’s women’s swim team in 2021-2022.

An article from Balls and Strikes on the confirmation hearing reported Olsen’s reply to a question about a 2022 sermon in which he said that “transgenderism, homosexuality, fornication, and all sorts of sexual perversions” were forms of hypocrisy that come from “shame on the inside.” In his response, Olson said that he didn’t “recall the precise wording” of his remarks, but conceded that the language sounded familiar.

As the linked report concluded,

Olsen said that he meant his words “for the edification of the people that I was preaching to,” and assured Kennedy and the rest of the committee that if confirmed, he would set aside his personal beliefs, apply the rule of law, and so on and so forth. I am sure that normal people in Indiana who do not want their federal judges to be alarmingly anti-gay, anti-trans, anti-disabled, anti-sex weirdos therefore have nothing to worry about.

No wonder Indiana’s Christian nationalist Senator Jim Banks was quoted as saying that he was “blown away by Olsen’s credentials” and asserting “that the nominee has a record of doing the right thing.”

When people like Jim Banks are deciding what “the right thing” is, Indiana’s litigants are in a lot of trouble.

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Fixing The Court

If there is one word that has been over-used ever since Donald Trump emerged from whatever fetid swamp he previously inhabited, it’s “normalization.” As the administration ignores the rule of law, breaches longstanding norms, and otherwise engages in decidedly abnormal behaviors, the legacy media and national businesses and institutions have largely gone along–metaphorically shrugging their shoulders while murmuring their objections.

That normalizing isn’t new. For years, those same institutions (and to be fair, the majority of the American public) have ignored the increasingly erratic operation of many of America’s governing structures–the misuse of the filibuster, the anti-democratic effects of the Electoral College, the blatant gerrymandering, and the problematic functioning of the Supreme Court.

The Court’s current, blatantly corrupt majority has focused public attention on its erratic and partisan rulings. But for years–well before the more recent decisions that have damaged the Supreme Court’s legitimacy, scholars who study the judicial system had been sounding alarms. Most of those concerns were focused on practices that had resulted in the Supreme Court accepting review of fewer cases each year, and the fact that Justices were living much longer these days–raising the probability of judicial senility. Well before Trump, scholars were calling for various reforms, especially the imposition of term limits (most favored eighteen years–long enough to accomplish the Founders’ goal of shielding Justices from popular passions.)

The subject of Court reform has taken on new urgency, for obvious reasons, and a number of possible “fixes” await a federal Democratic trifecta. One of the most intriguing was offered by Robert Hubbell, a lawyer whose Substack I read daily. Hubbell cites a book reviewed by The Guardian, in which legal scholars argue that the Court has “so delegitimized itself that nothing short of truly radical reform will save democracy.”

As Hubbell writes,

If we do not act boldly and quickly when we next have the chance, the damage Trump has inflicted on the DOJ and the Supreme Court may last a generation. Expand the number of justices to the point that the reactionary majority is impotent, and then begin a three-year plan to reverse every lawless, racist, anti-democratic decision issued by the Roberts Court.

Expansion of the Court, while controversial, is a common recommendation. What isn’t common is another proposal, which I found both fascinating and persuasive-“to split the Supreme Court into two divisions—one that hears cases within the “original jurisdiction” of the Court, and one that hears cases in the appellate jurisdiction of the Court.” That would allow “the assignment of “senior” justices to cases that are almost never presented to the Court—”so-called cases of original jurisdiction involving (e.g.) disputes between princes and ambassadors.”

Hubbell quotes an article from Daily Kos describing the plan:

We will need Congress to pass a new law that pushes the older justices aside and ties them up handling cases that don’t mean much to the American people.

The new law would say, “Justices of the Supreme Court who have served for 15 years or more shall be assigned to Division A of the court.

Division A will hear all cases affecting ambassadors, other public ministers and consuls;—all cases of admiralty and maritime jurisdiction . . . (These are cases that the existing Supreme Court now hears with “original jurisdiction.” It means the Supreme Court handles these cases from beginning to end with no trials in the lower courts.)

The statute should go on to say, “Division B shall be made up of justices who have served less than 15 years on the Supreme Court. After the year 2028, the president may appoint additional justices to this body . . . .

Survey research confirms that public opinion of the Court is at historic lows. A majority of Americans–and a significant majority of the legal profession– see the current Court as an overtly politicised body with significant ethics issues. Its unprecedented use of the “shadow docket” has unsettled both litigants and judges on the lower courts. And there is widespread disapproval of this Court’s consistent disregard for precedent and its dangerous undermining of Separation of Powers in order to empower our would-be king.

As the Editorial Board of the New York Times recently wrote, the lower courts “have responded heroically to Mr. Trump’s ill-founded efforts to centralize power and weaken democracy.” District and appellate courts have blocked Trump policies hundreds of times this year. “In many of those instances, however, the Supreme Court later overruled the lower courts, allowing Mr. Trump’s power grabs. It did so almost entirely on its emergency docket..”

Normalizing this rogue Court–failing to check its excesses–would neuter the Constitution and jettison the rule of law. We can argue about the details, but reform is essential.

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Happy Holidays

Very few of you will be reading a blog on Christmas, so I’m taking the day off.

Merry Christmas, Happy Chanukah, Happy Kwanzaa–whatever you celebrate, I’m wishing you a lovely day.

I’ll be back at it tomorrow….

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The Legislature That Won’t Stay In Its Lane

Indiana’s legislature is preparing for its 2026 session. Despite the Indiana Senate’s recent, surprising show of integrity in refusing to bow to Trump’s gerrymandering order, my expectations remain low. 

For the past several years, Rightwing Republicans (a large number of whom are White Christian nationalists) have enjoyed a super-majority in Indiana’s General Assembly. They haven’t simply ignored the Bill of Rights and the First Amendment’s Separation of Church and State, they”ve also demonstrated their total disdain for federalism–the constitutional division of authority that accords different powers to those managing local, state and federal jurisdictions.

Indiana’s legislators seem unable to grasp the fact that they are state legislators, not mayors and/or city counselors.

The Indianapolis Star recently shared research by the Indiana Coalition for Human Services, research that focused only on policies regarding the “social determinants of health.” The report included analysis of things like economic stability, health care and public safety, and the researchers found that roughly three dozen so-called “preemption” laws have been passed since 2010. Virtually all of those measures are examples of our radically Rightwing legislature stepping in to overrule policies our legislative overlords consider progressive or–horror of horrors–“woke.”

As Gary Snyder recently wrote on his “Snyde Report,” 

Indiana lawmakers keep insisting they believe in “local control,” right up until a city tries to do literally anything remotely progressive. A new report finds the Statehouse has quietly stacked more than 50 laws designed to block cities like Indianapolis from raising wages, protecting renters, regulating guns, or extending basic protections to LGBTQ Hoosiers — all in the name of making sure nobody accidentally improves quality of life without legislative permission. Since 2010, roughly three dozen of these preemption laws have been passed, part of a national trend where Republican supermajorities treat local governments less like partners and more like misbehaving children who need their policy toys confiscated.

The official excuse is “business-friendly uniformity,” but the results look a lot like wage stagnation, housing shortages, and two in five Indiana households unable to afford the basics where they live. Cities can’t raise the minimum wage, require affordable housing, or even ban puppy mills without the Statehouse swooping in to say no — yet lawmakers remain baffled by Indiana’s poor rankings on gun deaths, pollution, voter turnout, and overall quality of life. With a fresh wave of bills queued up to crack down on immigration, ban ranked-choice voting, police homelessness, and even let legislators impeach locally elected prosecutors, the message is clear: Hoosiers can have local government — just not local solutions.

My only quibble with that summary would be with its last sentence. Thanks to a legislature that refuses to stay in its own lane, Hoosiers don’t even have genuine local government–we just elect local “functionaries” who must obey the dictates of their legislative masters. As the Coalition for Human Services found, Indiana’s state lawmakers have repeatedly used the doctrine of preemption to target policies that could help lower-income Hoosiers and others in vulnerable groups, but sometimes, the reasons for preempting local government decisions don’t seem ideological–why, for example, did the legislature overrule at least 20 local ordinances meant to combat puppy mills? Is saving puppies “woke”? (My best guess: lobbyists and contributions from the owners of those establishments.)

In 2016, I was infuriated when Indiana’s legislators banned local governments from restricting the use of plastic bags at stores. The law prohibited local governments from banning (or taxing or placing fees on) plastic bags and similar single-use “auxiliary containers.” In a measure that clearly demonstrated that “home rule” is a fiction in Indiana, the law amended Indiana’s toothless home-rule statute to expressly bar local units of government from adopting “any prohibition, restriction, fee, or tax on items like plastic bags, paper bags, cups, boxes, or other one-time use packaging at stores.”

In Indiana, local governments retain that mythical “home rule” only so long as our legislative overlords approve of their “home rules.” Since our legislature is filled with MAGA Republicans who refuse to believe that climate change is a real thing, efforts by local folks to ameliorate environmental threats–even through such modest steps as banning the use of plastic bags–simply cannot be tolerated. 

When you live in a Red state, you soon learn that your legislature considers federalism–along with the protections of the Bill of Rights– optional.

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Is Social Media A Drug?

Paul Krugman recently compared access to social media to the legalization of heroin–to what would happen if heroin was sold without any restrictions on its marketing or use.

Heroin distribution and sales would quickly become a huge, multibillion-dollar industry. They would become a significant part of GDP, even though heroin harms and often kills those who consume it. Given the increasingly naked corruption of U.S. politics, the heroin industry would be able to purchase massive political influence, enough to block any attempts to limit the harm it does — the harm it knows it does, because heroin industry executives would surely be aware of the damage their products inflict.

Through massive political donations — enabled by the Supreme Court’s 2010 Citizens United ruling – and de facto bribery enabled via cryptocurrency deals, the industry would be able to enlist the U.S. government as an ally in its efforts to block regulation in other countries. For example, U.S. officials might threaten punitive tariffs against countries that try to limit and regulate heroin use.

Krugman insists that this fanciful exercise–which may seem “extreme and implausible”–is actually a pretty accurate description of the social media landscape. As evidence, he quotes a report issued in 2023 by the U.S. Surgeon General’s office, titled “Social Media and Youth Mental Health.” (Krugman advises downloading it quickly, before RFK Jr. suppresses it.) That publication summarized the now-extensive evidence that children and adolescents who consume excessive amounts of social media sustain mental health damage.

It isn’t as though the tech “bros” responsible for these platforms are unaware of the damage being done.

In 2021 the Wall Street Journal published an article titled “Facebook Knows Instagram is Toxic for Teen Girls, Documents Show: Its own in-depth research shows a significant teen mental-health issue that Facebook plays down in public.” In 2024 Meta finally introduced some relatively ineffectual limits on what teens can see.

The Journal reported that Meta’s own internal projections estimated it would earn 10% of its overall annual revenue – that’s $16 billion dollars– from advertising scams and banned goods. In other words, Meta’s platforms are knowingly pushing (and I use the word “pushing” intentionally) “fraudulent e-commerce and investment schemes, illegal online casinos, and the sale of banned medical products.”

And where have our intrepid Senators and Representatives been while these facts have emerged? Evidently, the same place they’ve been hiding while Trump dismantles the federal government.

Krugman writes that last year Congress was on the verge of passing the Kids Online Safety Act, a law that would have been the first to impose any rules on social media. The Act initially had bipartisan support; some ninety-one senators had signed on. But then, Krugman reports, “Mark Zuckerberg and his billions came to town, and the legislation died.”

Once again, other countries have done what the U.S. won’t. The European Union passed the Digital Services Act, which–among other things–requires large platforms to self-police and refrain from engaging in a variety of activities, including “dissemination of illegal content” and matter shown to have “negative consequences” for “physical and mental well-being.” Australia has recently passed a law that would prevent anyone under 16 from having a social media account. (I’ll admit to skepticism about the ability to enforce this, but at least Australia is trying.)

A couple of weeks ago, under its Digital Services Act, the European Union fined Musk’s X 120 million euros, based on several violations of that Act, including the fact that X’s “Blue checks” are a fraud. (X claims that a blue check means that the poster’s identity has been verified. But in fact X sells them and makes no effort to verify identity.) X also refuses to provide information on advertisements sufficient for users to identify scams, and refuses to make its public data available to researchers.

Unlike the EU, the Trump administration is pulling out the stops to support our tech titans’ resistance to European regulation.

Howard Lutnick, the commerce secretary, has explicitly linked U.S. tariffs on European steel to demands that Europe weakens its digital regulations. If the EU tried to make comparable demands on the United States, we’d consider it an outrageous infringement on our national sovereignty. And I’m pretty sure that making this linkage violates U.S. trade law too. But rule of law is for the little people.

As Krugman argues, unregulated social media is a lot like unregulated drugs. Powerful social media billionaires are preventing us from protecting our children. They are also using that power to dictate U.S. foreign policy, “punishing our erstwhile allies for daring to limit their ability to push their product.”

America is now a digital narco-state.

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