Category Archives: Constitution

Polluting The Judiciary

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.” In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.

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Us Versus Them: Shithole Edition

When reports of Donald Trump’s “shithole countries” remark hit the media, various  outlets  reported “gasps of disbelief” by Congressional Republicans.

Give me a break. Anyone who is genuinely surprised to discover that Trump is a racist is too stupid to tie his own shoes.

David Leonhardt ticked off  the evidence in his column yesterday for the New York Times:

• Trump’s real-estate company was sued twice by the federal government in the 1970s for discouraging the renting of apartments to African-Americans and preferring white tenants, such as “Jews and executives.”

• In 1989, Trump took out ads in New York newspapers urging the death penalty for five black and Latino teenagers accused of raping a white woman in Central Park; he continued to argue that they were guilty as late as October 2016, more than 10 years after DNA evidence had exonerated them.

• He spent years claiming that the nation’s first black president was born not in the United States but in Africa, an outright lie that Trump still has not acknowledged as such.

• He began his 2016 presidential campaign by disparaging Mexican immigrants as criminals and “rapists.”

• He has retweeted white nationalists without apology.

• He frequently criticizes prominent African-Americans for being unpatriotic, ungrateful and disrespectful.

• He called some of those who marched alongside white supremacists in Charlottesville last August “very fine people.”

• He is quick to highlight crimes committed by dark-skinned people, sometimes exaggerating or lying about it (such as a claim about growing crime from “radical Islamic terror” in Britain). He is very slow to decry hate crimes committed against dark-skinned people (such as the murder of an Indian man in Kansas last year).

Although pundits have previously noted Trump’s racist, barely-veiled “dog whistles” to white nationalists, they have been far more reluctant to say out loud what political scientists (and most sentient beings) have concluded from data about the 2016 electorate: a solid majority of Trump voters were motivated by racial animus.  Racism “trumped” (excuse the pun) recognition of Trump’s ignorance, grandiosity and utter unfitness for office; for those voters, identity politics–aka white nationalism with a side of misogyny– won the day.

Which brings me to the unpleasant but unavoidable subject of “us versus them.”

Scholars who study the history of human interaction tell us that tribalism is hard-wired into the human psyche. There are evolutionary reasons for that, and the consequences aren’t all negative by any means. Our attachments to our families, our “clans” and our countries can promote solidarity, sacrifice and reciprocity.

The problem is the way far too many Americans define “us.”

I know I get tiresome with my constant harping on the need for improved civic literacy and constitutional knowledge, but the reason I believe it is so important that Americans understand our history and philosophy and constituent documents is because allegiance to America’s foundational values is what makes people Americans. It is what creates an overarching “us” out of an assortment of diverse and otherwise unconnected “thems.”

Republicans used to understand that. It was Ronald Reagan who said

You can go to Japan to live, but you cannot become Japanese. You can go to France to live and not become a Frenchman. You can go to live in Germany or Turkey, and you won’t become a German or a Turk.’ But anybody from any corner of the world can come to America to live and become an American.

Donald Trump explicitly appeals to people who don’t understand that, people who have a very narrow definition of “us”– people who define their own identities by the color of their skin, their sexual orientation or religion. They are incapable of seeing people who don’t look just like the image they see in their imaginary mirrors as members of their tribe, as part of “us.”

Fear and ignorance keep them from understanding who “we” really are.

The good news is that we don’t have to fight our hard-wired impulse to see the world in terms of “us” and “them.” We just have to work toward a better, more accurate, more capacious definition of “us” — a definition that includes all Americans, no matter what color, religion, sexuality, gender or other “tribe.”

One we get that right, we can work on defining “us” as humanity….

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Constitutional Wisdom From Abroad

Jonathan Freedland is a columnist for the British Guardian. He recently attended the London opening of Hamilton, an event that prompted him to reflect upon his prior enthusiasm for America’s Constitution.  As he says, the musical’s idealism “struck a chord.”

In 2018, it will be 20 years since I published a book called Bring Home the Revolution. Begun when I was still in my 20s, it too was an essay in idealism, arguing that the American uprising of 1776 and the constitution that followed in 1787 were a rebellion against a system of government under which we Britons still laboured two centuries later – albeit with an overmighty, overcentralised government in place of the bewigged King George.

The American revolution, I argued, was our inheritance, a part of our patrimony mislaid across the Atlantic. From a written constitution to a system of radically devolved power to the replacement of monarchy with an elected head of state, it was time for us to bring home the revolution that we had made in America.

As Freedland tells it, his homage to our written constitution and its checks and balances came just before a series of somewhat embarrassing U.S. upheavals: the Clinton impeachment, ” hideous, only-in-America” mass shootings, and similar dysfunctions culminating in the election of Donald Trump, who–despite getting fewer votes–defeated “an infinitely more qualified opponent.”

Initially, Freedland says, he responded to these unsettling reminders of our lack of social perfection by reminding himself that he was admiring a founding ideal, not our nation’s flawed reality. But little by little, he has come to recognize some inadequacies in that founding ideal.

It’s time for me to admit my doubts about its core idea – its admiration for the US constitution and system of government. For this first year of the Donald Trump presidency has exposed two flaws in the model that I cannot brush aside so easily.

The first is that Trump has vividly demonstrated that much of what keeps a democracy intact is not enshrined in the written letter of a constitution, but resides instead in customs and conventions – norms – that are essential to civic wellbeing. Trump trampled all over those as a candidate – refusing to disclose his tax returns, for example – and has trampled over even more as president.

Freedland enumerates some of the norms Trump has ignored: refusal to divest himself of his business interests, appointing unqualified family members to high government posts (although, really–how would this unbelievably ignorant and incompetent man even recognize other people’s lack of qualifications?), firing James Comey. Etc. Then he returns to the institutional point:

But this year of Trump has also shown the extent to which the US has an unwritten constitution that – just like ours – relies on the self-restraint of the key political players, a self-restraint usually insisted upon by a free press. Yet when confronted with a leader unbound by any sense of shame – and shamelessness might just be Trump’s defining quality – America is left unexpectedly vulnerable.

Impeachment, of course, is a remedy, but as Freedland (and every other sentient observer) recognizes, nothing will happen so long as Republicans control both houses of Congress.

In 2017 we saw with new clarity that the strength of the US constitution depends entirely on the willingness of those charged with enforcing it to do their duty. And today’s Republicans refuse to fulfil that obligation. They, like Trump, are without shame. This was a fatal oversight by Hamilton, James Madison and their fellow framers of the constitution. They did not reckon on a partisanship so intense it would blind elected representatives to the national interest – so that they would, repeatedly, put party ahead of country. The founders did not conceive of a force like today’s Republican party, willing to indulge a president nakedly hostile to ideals Americans once held sacred.

Ironically, if someone like Trump emerged in England, it would be easier to get rid of him; a parliamentary vote of no confidence is, as Freedland concedes, a lower hurdle than impeachment.

As perceptive as this essay is–and I encourage readers to click through and read it in its entirety–we are inescapably products of our own legal system, a system dependent upon adherence to our own democratic norms. (During the Constitutional debate over the addition of a Bill of Rights, Hamilton was among those making the point that written laws cannot address every possible way in which government can go off the rails.) Standards of behavior, expectations of decorum and propriety, and measures of competence are ultimately cultural artifacts, their breach punished by public opprobrium.

In November, we will see the extent to which America’s “unwritten Constitution” and democratic norms still hold.

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Idiocy In Indiana

Sorry for cluttering up your inboxes, but blame the headline and story in the Indianapolis Star. 

Clearly, It isn’t only Washington that is suffering from a surfeit of buffoons.

I ‘m old enough to remember when Harrison Ullmann, then editor of Indianapolis’ alternative newspaper Nuvo, routinely called the Indiana General Assembly “the World’s Worst Legislature.”

And that was before Milo Smith was elected to embarrass Bartholomew County.

Smith, as you may recall, was the legislator who refused to allow the House Elections Committee to even hold a vote on a redistricting bill, killing last session’s effort to reform gerrymandering–and not so incidentally, protecting his own safe seat.

Smith has also been in the forefront of efforts to pass anti-LGBTQ legislation–despite the fact that his own son is gay. There is something truly despicable about a parent actively trying to make his own child a second-class citizen.

Smith’s disdain for bedrock American values like civic equality and liberty have once again come to the fore: he has announced his intent to file a bill that would force the owners of the Indianapolis Colts to refund the admission fee of fans “offended” by players “taking a knee.”

What was it that Forrest Gump always said? “Stupid is as stupid does”?

One of my former students texted me to ask whether this idiotic proposal wouldn’t also be unconstitutional–after all, government would be forcing the team’s owner to infringe players’ rights or lose money. The answer is yes. (My students are required to encounter the Constitution; clearly, Indiana elected officials are not.)

It’s bad enough that this proposal spits on the First Amendment’s protection of every American’s right to protest–to express a political opinion without incurring government’s sanction. Even worse, Smith wants government to penalize the private-sector team owners if they fail to carry his unconstitutional water.

Perhaps he’d like to fine other businesses when their employees took public positions with which others disagreed?

Next November, I’m fervently hoping for a “wave”– voter turnout massive enough to wash away the ignorant and self-important occupants of seats gerrymandered to be “safe.” Milo Smith and his ilk need to be removed from the Indiana Statehouse, and despite the best efforts of those engaged in partisan redistricting, high turnout will turn them out.

Wouldn’t it be nice to have Representatives with at least a nodding acquaintance with the U.S. Constitution and with our most foundational American values?

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When Someone Tells You What They Are, Believe Them. Political Parties, Too.

The Huffington Post was only one of several outlets reporting on the confirmation of yet another unqualified (but politically and ideologically acceptable) nominee to the federal bench.

The Senate voted Tuesday to confirm one of President Donald Trump’s judicial nominees, Leonard Steven Grasz, despite the fact that Grasz earned an embarrassing and unanimous “not qualified” rating from the American Bar Association.

Every Republican present voted to confirm Grasz, 56, to a lifetime seat on the U.S. Court of Appeals for the 8th Circuit. That includes moderates like Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), as well as retiring Sens. Jeff Flake (Ariz.) and Bob Corker (Tenn.). Every Democrat opposed him in the 50-48 vote.

It is extremely rare for the Senate to confirm a judge with such an abysmal rating from the national legal organization. The ABA has reviewed more than 1,700 federal judicial nominees since 1989, and only three, including Grasz, have been deemed unanimously unqualified. The other two, both nominees of President George W. Bush, were withdrawn and replaced with other nominees after the ABA’s assessment came in.

Lest you be tempted to dismiss the ABA’s rating, the panel had interviewed more than 180 people familiar with Grasz, who had served as Nebraska’s chief deputy attorney general for 11 years and was thus well-known to practitioners in the state.

He was described by people who knew him and lawyers who’d worked with him as “gratuitously rude.” Far more concerning, a number of people reported having an “unusual fear of consequences” if they said anything negative about him because of his “deep connection” to powerful politicians in Nebraska. (Perhaps his evident petulance and thin skin are what commended him to Trump, who exhibits similar characteristics.)

So why would the GOP elevate someone who appears to be an unqualified asshole to a circuit court position requiring a modicum of tact and a judicial temperament? There are literally hundreds of highly qualified Republican lawyers–why choose someone so unfit to serve?

ABA members also raised concerns that Grasz would be “unable to separate his role as an advocate from that of a judge,” given his record on issues like LGBTQ and abortion rights. Among other things, Grasz served on a nonprofit board that backed so-called conversion therapy for LGBTQ kids, and in a 1999 article argued that lower courts should be able to overrule Supreme Court decisions on abortion rights because “abortion jurisprudence is, to a significant extent, a word game.”

Putting someone on the bench who believes that a circuit court could–or should–“overrule” the Supreme Court when they issue a decision he dislikes is incomprehensible. Or should be.

In the wake of the elections in Virginia and Alabama, I’ve begun to hold out hope that Trumpism will be limited–that the 2018 elections will put adults back in charge of Congress, and that Trump/Pence will be gone once Muller completes his work. Worst case scenario, by 2020 much of the damage being done–to our position in world, to the environment, to public education, to the poor–can be undone, or at least mitigated.

But not the courts. The ideologues and incompetents being nominated and confirmed to the federal courts will be there for life, and if there are enough of them, they can change the course of American jurisprudence for a hundred years.

There are many things the Congressional GOP is doing that horrify me–passing policies that hurt the most vulnerable while enriching their donors and patrons, “culture war” tidbits they are throwing to their frightened, racist and uneducated base to keep them subdued. But subverting the rule of law by  placing zealots and know-nothings rather than principled conservatives on the federal bench ranks as the most despicable action of all.

I think it was Maya Angelou who said “When people tell you who they are, believe them.” Today’s Republican party is telling us who they are, and it isn’t pretty. In fact, it’s nauseating.

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