Category Archives: Constitution

Hear Ye, Hear Ye…

For those of us desperate for any good news, any glimmer of hope that America might eventually emerge from the purgatory into which we’ve been plunged by the MAGA party, a newsletter from the Brennan Center recently offered that glimmer. (No link, sorry.)

On September 30, President Biden announced ten more federal court nominees, bringing the administration’s total number of nominees to 53. Biden also announced four nominees to serve on local D.C. courts.

Biden’s eighth slate of nominees includes two civil rights lawyers and three current or former public defenders. Several of the nominees, if confirmed, would also mark historic firsts: the first Asian American man on the Western District Court of Washington, the first Asian American woman on the Southern District Court of California, and the first Hispanic district court judge in Ohio.

According to CNN, more than 25% of Biden’s nominees to date are Black, 21% are Hispanic or Latino, and 23% are Asian American or Pacific Islanders. Close to 75% are women. In addition, 32% of Biden’s judicial nominees are former public defenders and 25% are civil rights lawyers.

Biden is confirming judges at a rate faster than any other president at this point in their term since Richard Nixon, according to Bloomberg Law. Sixteen of Biden’s judicial nominees have been confirmed so far.

I feared–and still fear–that Mitch McConnell and Donald Trump had ensured a generation in which the federal courts would be lost to principles of justice and equality. After all, they did manage to elevate a number of ideological and, frequently, demonstrably unqualified partisans to those courts. The Biden Administration is clearly aware of the need to ensure the ongoing integrity of the courts, and equally aware of the need to populate the bench with Americans who are both competent and representative of the country as a whole.

So–good news. I’ll take it.

Unfortunately, all the emerging reports about America’s courts are not as positive as that one. That same newsletter relayed the conclusions of an investigation by the Wall Street Journal that found 130 federal judges had violated U.S. law and judicial ethics by “overseeing court cases involving companies in which they or their family owned stock.”

The Journal reported that between 2010 and 2018, 129 federal district court judges and two federal appellate judges had failed to recuse themselves from 685 cases in which they or their families had a financial conflict, and that approximately two-thirds of the rulings subsequently favored the judges’ or their family’s financial interests.

One of the reasons for this country’s current angst is the public’s loss of trust in the institutions of American government. Trump certainly accelerated suspicion of government bureaucrats with his paranoia about the “deep state,” and he fed a wide variety of conspiracy theories, but much of the loss of trust preceded him. (My book, Distrust American Style, was published in 2009, and the phenomenon was anything but new.) Confidence in the administration hit an all-time low under Trump (and for good reason), but Congress has been utterly feckless for well over a decade.

The courts were, for a time, the holdout.

With McConnell’s success in remaking the Supreme Court into an instrument of partisanship, and four years of appointments of partisan hacks  (mostly White men) to the federal bench, those of us who’ve been paying attention lost hope that the courts would salvage constitutional principles–or at the very least, stem the tide.

I doubt that the Biden Administration has the political capital to do what very clearly needs to be done: either enlarge the Supreme Court or impose limits on Justices’ terms of service. Scholars of the judiciary have been advocating various mechanisms for expanding  the Court for years–far preceding McConnell’s mischief–for reasons of efficiency; they’ve also been advocating term limits in recognition of the fact that Justices live much longer than they used to. (Terms of 18 years, the usual recommendation, would probably be long enough to insulate Justices from political pressure– the original reason for lifetime appointments.)

In the absence of meaningful structural change, the nakedly partisan makeup of the Supreme Court is likely to keep trust in the courts low–leaving discontented citizens with nowhere to turn for redress of grievances.

Of course, speaking of “redress of grievances,” we might remind folks that there is this thing called the ballot box…

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Majority Rule?

Humans have a lot of trouble communicating, and language–which developed to facilitate that communication–frequently gets in the way. (A quote attributed to Talleyrand seems apt: he supposedly opined that “language was given man to conceal his thoughts…”)

Take the word “democracy.” These days, virtually every opinion column, every political speech or tweet or meme centers on threats to American democracy, but a recent New York Times column by Jamelle Bouie reminded me that Republicans and Democrats have rather different approaches to what the term means in American governance.

Bouie’s column didn’t address that longstanding difference–he was talking about how far Congress is from the dictionary definition, which is “majority rule.” He began by pointing out that a Senate majority favors raising the debt limit, protecting citizens’ right to vote, reforming policing…measures that are widely popular and that need to get done.

With a simple majority, in other words, Democrats could secure the full faith and credit of the United States, restore to strength the most important voting rights law in U.S. history and make progress on a critical issue for millions of Americans. They might also, if they have the votes, make it easier for workers to organize a union and, separately, codify Roe v. Wade into federal law.

Of course, the Senate does not run on 51 votes. Instead, members must assemble a supermajority to do anything other than appoint judges, confirm nominees and pass certain spending bills. Pretty much everything else must go through a protracted and convoluted process that makes a mockery of the Senate’s reputation for debate and deliberation.

It would be easy for me to write another jeremiad against the filibuster. I can’t say I’m not tempted. But I also have nothing left to say. Its problems are as well documented as anything could be, and the main argument in its favor — that a counter-majoritarian chamber already structured by equal state representation needs an additional supermajority requirement to protect the “rights” of a partisan minority — does not withstand serious scrutiny.

Of course, Bouie is absolutely correct–if the matters he lists are supposed to reflect majority opinion, as most Americans suppose. As I used to tell my students, the Bill of Rights prohibits American government from invading fundamental liberties, even when a majority approves of that invasion–but other matters, policy matters, are supposed to reflect the will of the majority.

Actually, even before the GOP lost its mind, Republican political orthodoxy rejected that explanation. I can’t count the number of times I heard  that “The United States isn’t a democracy, it’s a republic,” as if those were diametrically-different systems. That we are a republic is technically true: we elect Representatives and Senators to make decisions on our behalf. But this repeated insistence that we are not a democracy but a republic wasn’t evidence of a desire for grammatical precision–it was thinly-veiled paternalism. What those delivering that lecture meant was that we vote to select our “betters,” who are thus empowered to decide what’s best, irrespective of the expressed desires of those voters.

There is, again, a measure of truth to this. We hope that the people we elect will inform themselves of the nuances of policies and support those they believe are in the national interest, especially when their constituents lack sufficient context or technical knowledge to inform their preferences. But as I look back on those discussions, there was a strong whiff of “father knows best” to them. The electoral process–properly crafted (!!)–would put superior people (okay, white Christian males) in office, and they’d run things. Their way.

After all, America isn’t really a democracy…

Not all Republicans believed this, of course. The party once had  thoughtful, responsible people in it. Bouie quoted the very Republican Henry Cabot Lodge who wrote the following in 1890:

“If a minority can prevent action, the majority, which is entitled to rule and is entrusted with power, is at once divested of all responsibility, the great safeguard of free representative institutions.”

Democracy or democratic republic, in all but a few areas where fundamental liberties are at stake, the majority is entitled to rule. And right now, thanks to gerrymandering, the filibuster, vote suppression and demography, a distinct and shrinking minority continues to prevent actions desired by significant majorities.

We’ve suffered a (mostly) bloodless coup.

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A Link And A Prayer…

Tonight, Monday, October 4, at 7:30 p.m. I will be on a panel (via Zoom–link below) discussing the impending threats to reproductive choice, from Texas to Mississippi.

https://us06web.zoom.us/j/96415122645

Here’s the description, and for those who want to “attend,” the information for RSVPing:

Rabbi Dennis Sasso hosts a conversation regarding reproductive rights after the controversy related to the abortion laws in Texas. Rabbi Sandy Sasso will moderate the conversation and share the Jewish perspective with guests Dr. Leigh Meltzer, Obstetrics & Gynecology Physician at IU Health, and Emerita Professor of Law and Public Policy Sheila Kennedy. R.S.V.P to jgoldstein@bez613.org or (317) 253-3441.

For those who would like to see the discussion but can’t make tonight’s Zoom presentation,I’m told the session will be recorded, and will be available on the Congregation’s You Tube channel. (Who knew congregations had You Tube channels!)

My brief introductory remarks mostly reiterate points I’ve previously made on this blog, but in case any of you have missed my “take” on Texas, etc., I’m pasting a rough draft below. I anticipate a fairly lively discussion following the introductory remarks from the three of us.

___________________

There are three things we need to understand about the context of today’s legal debates over abortion—one philosophical, one historical, one sociological.

Liberal democracies are grounded in the libertarian premise that we are all entitled to make our own moral choices unless we are harming the person or property of someone else. In order to be considered legitimate in a diverse liberal democracy, legislation banning or requiring certain behaviors on moral grounds should reflect widespread public consensus—That’s why the First Amendment’s religious liberty clauses, properly understood, forbid government from imposing the religious beliefs of some Americans on others.

When it comes to abortion, that consensus does not exist.

Historically, the “pro life” movement was not, as popular mythology suggests, a reaction to Roe v. Wade. It wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Objecting to abortion was seen as “more palatable” and more likely to motivate religiously conservative Christian voters than the actual motivation, which was denial of tax exemptions for the segregated schools established following the decision in Brown v. Board of Education.

Those origins persist. Sociological research confirms that Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. Research also confirms that people active in the “pro life” movement are much more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of the gender hierarchy they support.

The history and research go a long way toward explaining why it is so difficult to have evidence-based, logical discussions about abortion and birth control with anti-choice activists. The issue isn’t really abortion.

What is far less well understood, however, is that the consequences of upholding Texas’ law—if, in fact, the Court eventually does that—would be devastating, and would extend far beyond the issue of abortion. (Thus far, as you know, the Court has simply punted—it hasn’t ruled on the constitutionality of the law.)

A decision to allow the empowerment of culture war vigilantes would achieve a longstanding goal of so-called “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the interference of the federal government.

Such a decision would effectively approve a federalism on steroids, and—I am not engaging in hyperbole here—the effective unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protections against unreasonable search and seizure..

Texas’ law strikes a terrifying blow against that principle.

Let me explain why this law created private vigilantes. The idea is that by enlisting private citizens to enforce the law the state can avoid challenges to the bill’s constitutionality. The theory is that, since the state itself won’t be directly involved in enforcing the law, state officials won’t be proper defendants to a lawsuit.

Why does that matter?

What far too many Americans don’t understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors. If there hasn’t been state action–government action– there hasn’t been a constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues and from all political perspectives. As Lawrence Tribe recently warned, California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. In law school, I remember studying a 1948 case involving racially-restrictive deed covenants. Those covenants were between private parties, but the Court found state action present because those private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. That case is still good law.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

The bottom line is that, if successful, this effort would empower zealots of both the right and left.  This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence. Even a more conventional overruling of Roe –a distinct possibility in a case pending from Mississippi—would invite unintended consequences. We can discuss those during Q and A.

Finally, as many of you know, my longstanding preoccupation has been with civic literacy—with the failure of so many Americans to understand their own government. The pandemic has given us a glaring illustration of that ignorance; we have officials and pundits insisting that they have the right to control their own bodies, that government can’t tell them to be vaccinated. Ironically, most of the people making this argument are anti-choice—in other words, they are claiming a right for themselves that they are unwilling to extend to others. But it isn’t only the glaring hypocrisy; they are also wrong. Government has a duty to prevent citizens from harming others, and the Court has recognized the right to mandate vaccination for at least 100 years. A woman who aborts is not a threat to her neighbors; a citizen who refuses to wear a mask or be vaccinated is such a threat–and the law recognizes the distinction even if too many Americans don’t.
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Laugh? Or Cry??

To pick up a newspaper today is to enter wacko world, where right-wingers’ fears (those “Others” are voting! That means the election is rigged!!) and their obsessions with sex (it’s dirty! protect the children!) are bursting out all over.

I recently stumbled across this report from the Daily Beast, and you really need to read it to believe it. An essay from The Guardian by Arwa Mahdawi captured my reaction:

The latest absurd example of conservative cancel culture comes to us courtesy of Moms for Liberty, a rightwing advocacy group who are trying to dictate what books Tennessee public school kids can read. I don’t know if any of these moms own a dictionary, but they might want to look up the definition of “liberty”. And then they might want to change their name to Moms for Thought Control.

The moms have been very methodical: they’ve sent the Tennessee Department of Education a detailed spreadsheet outlining their complaints about the books being foisted on their children. It makes for unintentionally hilarious reading. A book about Galileo is “anti-church.” A book about seahorses contains too many details about the mating rituals of seahorses. A book about Native Americans is “divisive” and “paints white people in negative light.” A book about Ruby Bridges, the first Black child to integrate an all-white public elementary school, is “divisive.” (Racists love using the word “divisive”, have you noticed? How dare you bring up slavery and segregation! You’re being divisive!) A book about Greek mythology is a little too “graphic and scary”. A book about Martin Luther King contains “photographs of political violence”. The whole thing reads like the unhinged ravings of a book club from hell.

It’s hard not to laugh at this exercise of attempted “cancellation”–especially since one of the many accusations leveled at liberals is that it is the Left that has developed “cancellation culture.” But ultimately, it isn’t funny. It actually is representative of what passes for today’s right wing philosophy.

As Mahdawi points out, this attempts to dictate (okay, censor) the Tennessee curriculum is part of the Right’s frantic effort to rewrite American history. You can see that obsession in the sudden discovery of and opposition to Critical Race Theory (which none of its opponents can define. To them it just means anything that is less than complimentary about white people). Mahdawi notes that at least eight Republican states (including Tennessee) have introduced laws restricting how race can be taught in public schools this year and nearly 20 additional states have introduced or plan to introduce similar legislation

Far from being a kooky fringe group, Moms for Liberty are part of a very well-coordinated culture war. Whether it’s abortion or CRT, the playbook is always the same. The rightwing media whips up outrage; deliberately vague laws are passed off the back of that outrage; advocacy groups diligently weaponize these laws at a local level. “We are seeing what appear to be coordinated efforts to challenge books, not purely based on the content of the individual book, but based on the fact that they teach history from a particular viewpoint,” an executive from the National Coalition Against Censorship, told The Daily Beast. “We’re also seeing entire lists of books being challenged, as opposed to individual titles.”

So what’s the moral to this story? Essentially, it’s that you shouldn’t underestimate the right. It’s very easy to laugh at a bunch of rightwing moms clutching their pearls over sexy seahorses – but there’s nothing funny about the systemic, organised way in which conservatives are trying to rewrite history and restrict freedom of speech.

The real threat comes from the tendency of rational folks to dismiss these efforts–to chuckle, shake our heads and ignore it, because “it can’t happen here.” Depending upon your definition of “it,” it can happen here–as we learn more about the Trump effort to overturn the election, we learn how close that effort came and how much lasting damage it did to America’s democratic norms. We may not be quite ready to sew Hester Prynne’s “A” on women’s shirts, but we keep edging closer, and there are active movements to deny LGBTQ citizens a lot more than bakery products, among other efforts to return us to the 1950s. Or before.

These people may be nuts, but in the absence of a robust and determined protection of our rights, lunatics can be very effective.

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Voter Turnout

A good friend and former colleague of mine moved back to Canada a few years ago, to accept a prestigious position. (I say “back” because he was originally from Canada. He’d married a U.S.Citizen, obtained joint citizenship, and for many years was a highly respected bioethicist at U.S. institutions of higher education.) We continue to correspond, and in the wake of Canada’s recent election, he sent me a column from a Canadian newspaper, bemoaning that election’s low turnout.

He also sent the results of a Google search for turnout percentages in both the U.S. and Canada. (You know what’s coming, don’t you??) Here’s a portion of his message:

I did find it charming that the article bemoaning low Canadian turnout (which this year was a historical low at ~58%) is still significantly higher than in the US. 
 
Apart from the Trump v Hilary election in 2016 when it was 50%, the last time US voter turnout was above 50% was in 1912 if I am reading the charts correctly. 
 
Worth pondering, eh?

The newspaper article quoted Canadian political observers on the possible reasons for what the Canadians considered “depressed” turnout. The pandemic was one possibility, and attitudes about the need for this particular election were also mentioned. But the observation that really struck me was this one:

“We’ve historically had really high trust in our democratic institutions, in our election process … and I think that the challenges that they faced in this election are going to take some time to rebuild confidence in our elections.”

That prompted me to consider just where we are in today’s U.S. If turnout depends upon trust in the integrity of the electoral system, what can we expect in the wake of the GOP’s Trumpian assault on that integrity?

If a decision to vote requires trust– trust that one’s vote will count, trust that the election is being honestly run, trust that there is a meaningful difference between the candidates for office, trust that the people who’ve earned your vote will do their best to follow through on their promised agendas–what happens when a significant portion of the GOP believes, in the face of all evidence to the contrary, that voter fraud is rampant and the 2020 election was rigged?

It isn’t just trust in the administration of elections–trust in government has been steadily ebbing in the US. The evidence goes well beyond our pathetic voter turnout figures. If that meant that we could count on a direct correspondence between low turnout and the distrust that has led to virulently anti-government sentiment, we might expect a lot of Republicans to stay home in 2022 and 2024 (and from my perspective, that would be a very good thing).

But of course, it’s never that simple.

One of the regular readers of this blog sent me a You Tube interview between a scholar with the Humphrey School of the University of Minnesota and  Stan Greenberg, the former Yale professor who’s been a Democratic pollster pretty much forever. Greenberg explained Trump’s 2016 win by pointing out that his racist appeal had generated turnout from people who’d never before voted—and according to his research, those previous non-voters remain engaged.

Evidently, they do have trust–trust that the current iteration of the GOP will protect White Christian dominance.

One of the oldest and truest rules of politics is that turnout is everything. It doesn’t matter how many Americans agree with party A or party B–as the saying goes, the only poll that matters is the one on Election Day.

The only way to ensure robust turnout of voters for what is currently the only sane party is for the Democrats to pass their agenda–especially the expansive infrastructure bill and the voting rights bill–and demonstrate that government can work, that Democrats can be trusted, that the right to participate in democratic deliberation via the ballot box can be protected.

To be clear, I’m not saying the Democrats are right about everything, only that they are currently the only sane option. We are truly at an inflection point, and constitutional government is in the cross-hairs.

Meanwhile, the Earth keeps warming, the GOP is now entirely the party of the batshit crazies, and I am very afraid that the Democrats will be unable to control their circular firing squad.

The world my grandchildren will inherit looks very scary….

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