Category Archives: Constitution

Saving The Courts

Yesterday’s post focused on the unending stream of ideologues being elevated to the federal bench under Trump.

Assuming–as even the least optimistic among us must–that massive turnout in  2020 rids us of this ignorant, corrupt and malevolent administration and enough of its feckless enablers to change control of the Senate, how might a new administration rescue the federal courts from the partisanship that is tarnishing both their operations and reputations?

My graduate students have some suggestions.

In the take-home final examination I gave my graduate Law and Public Policy class, the following question was one of three from which they could choose to submit a concluding essay:

Over the past several years, the federal courts, and especially the Supreme Court, have come to be viewed by both political parties as political prizes. Rather than choosing nominees with sterling legal credentials, appointments to the courts have increasingly been based upon the nominee’s perceived political ideology. You have been elected President, and your party controls both houses of Congress. You want to return the courts to their status as respected impartial arbiters of the law. What changes would you make to the composition of the courts, the nomination process or otherwise in order to accomplish this?

I was surprised by the number of students who chose this question, and impressed by the thoughtfulness with which they approached it.

A number advocated Increasing the number of Supreme Court Justices, noting that their number is not mandated by the Constitution and has been changed previously. Most suggested a panel somewhere between 12 and 20.

Another popular proposal was the creation of a nonpartisan advisory committee composed of legal scholars, sitting judges and representatives of the ABA, who would be charged with coming up with–and thoroughly vetting– a slate of candidates from which the President would choose his nominee.Some students suggested analogous processes for the lower courts.

In recognition of the fact that people live far longer these days, several suggested limiting the terms of Supreme Court Justices–making their tenures long enough to remove the threat of political pressure that prompted the Founders to prescribe lifetime terms, but short enough to ensure more frequent turnover.

One student supported implementation of the “Supreme Court Lottery”  advocated by legal scholars Epps and Sitaraman. Under this proposal, “each judge on the federal courts of appeals would also be appointed as an Associate Justice of the Supreme Court.  When cases are heard, an appropriate number of these judges would be chosen at random to sit on the Supreme Court panel.”

Several students noted the need for a process to increase what one called “demographic accountability”–a judiciary that more closely reflects the composition of the population, and suggested ways this might be accomplished.

All in all, the number of students who chose to answer this question and the various suggestions contained in those responses suggests the existence of widespread agreement on at least two things: 1) the courts are in danger of losing legitimacy (perhaps it would be more accurate to say “in danger of continuing to lose legitimacy–a loss that really began to gather steam with the decision in Bush v. Gore) and 2) partisanship and extreme partisan polarization are to blame.

My students are not lawyers. I teach in a school of public affairs, not a law school, so some of the suggested “reforms” were impractical or otherwise fanciful. But the students in my graduate class tend to be older, employed, with families, and they are generally thoughtful and civically-engaged. During the semester, virtually all of them demonstrated deep concerns with the dysfunction, chosen ignorance, and theatrics that have replaced  working governance.

Of course, if the people who didn’t bother to vote in 2016 stay home again in 2020– if the electorate does not come out en masse to evict the criminals, buffoons and fellow-travelers who are running roughshod over America’s ideals and Constitution–  suggestions for reforms will continue to be beside the point.

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Another Stomach-Turning Appointment

While we are all transfixed by the Impeachment process, and by Republicans’ bizarre antics during the House Intelligence and Judiciary Committee proceedings, their Senate counterparts have been busy defiling the federal bench and giving a middle finger to the rule of law by confirming judicial nominees who are demonstrably unfit.

Ed Brayton recently reported on the confirmation of one such specimen: a creationist named Lawrence Van Dyke. Van Dyke is yet another Trump nominee rated “unfit” by the American Bar Association–ratings to which the Administration has responded by discontinuing the practice of asking the ABA for its evaluation of potential nominees.

When you don’t get the answers you want, just stop asking the questions…

In addition to being considered unfit by his legal peers, however, Van Dyke is apparently a real piece of work:

After conducting 60 interviews, the ABA found that VanDyke has a reputation as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” Video of VanDyke lecturing, scolding, and interrupting judges during oral argument while serving as Nevada solicitor general lends credence to that assessment…

VanDyke has a long record as an anti-LGBTQ activist. He wrote in 2004 that marriage equality “will hurt families, and consequentially children and society.” As the solicitor general of Montana, he advocated for the state to join two briefs alleging that legal recognition of same-sex relationships would harm children. The first claimed that prohibiting same-sex marriage promoted “optimal childrearing” because same-sex couples “cannot provide” the optimal “family structure.” And the second asserted that states “may rationally conclude” that “it is better” for parents to have a “biological” connection to their children…

How would you like to be an LGBTQ litigant whose claim was being adjudicated by this gem? As Brayton writes,

Only Trump would have even considered appointing this ignorant dolt to the federal bench. And since the Senate Republicans would confirm a ham sandwich if Trump nominated one, we’re now stuck with this mushhead for a lifetime.

A regular reader of this blog recently sent me an email asking whether Bill Barr could be impeached. As I told her, he could be–and he should be. But so long as Mitch McConnell is in charge of the Senate, he won’t be.

The New York Bar Association recently issued a statement to the effect that, if Barr refuses to recuse himself from the Ukraine investigation, he should resign or, failing that, “be subject to sanctions, including possible removal, by Congress.” It is certainly foreseeable that other bar associations, responding to inappropriate behavior by one of Trump’s questionable judicial appointments, might also call on Congress to issue sanctions– although doing so would raise a very real possibility of judicial retaliation against lawyers with suits pending in that courtroom.

More to the point, calling out judicial misbehavior is useless if the Senate remains in the hands of the same no-integrity Republicans who confirmed these specimens in the first place.

As important as it is to defeat Donald Trump in November, it is every bit as important–actually, it is even more important–to remove Mitch McConnell (aka the most evil man in America) and the Republican majority that has enabled him.

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Bigotry And The Campus

My university–albeit not my campus–recently made the Washington Post, among other national publications, thanks to a longtime business-school professor’s racist, sexist and homophobic posts to social media.

According to colleagues on the Bloomington campus, Eric Rasmusen has voiced these opinions–which he characterizes as “conservative” and “Christian”–for several years.   What apparently triggered the current attention to them was his recent retweet of an article suggesting that women are destroying academia. The ensuing publicity has led to a lively argument over the University’s response, which has been to condemn his opinions in the strongest possible terms while respecting his First Amendment right to express them on his own site.

The current kerfuffle illustrates–among other things– the dishonesty of most conservative criticisms of higher education, especially the charge that conservative faculty members aren’t treated fairly.

More telling, however, is Professor Rasmusen’s clumsy effort to distance himself from the clear implications of his own social media history.

Rasmusen, who has taught at the school since 1992, told the Indiana Daily Student on Wednesday that he only shared a quote he “thought was interesting and worth keeping note of.” He told the student publication that the backlash was surprising, adding, “It seems strange to me because I didn’t say anything myself — I just quoted something.”

In a Thursday interview with Kelly Reinke, Rasmusen said he should be able to quote from an article without agreeing with it in its entirety; he deflected questions that asked him point-blank whether he agreed with the piece.

Since then, Rasmusen has continued to update a personal page “for links concerning the 2019 kerfuffle in which the Woke crowd discovered my Twitter tweets, retweets, and suchlike and got very excited, and my Dean and Provost immediately overreacted.”

If the Professor’s history of racist, sexist and homophobic posts reflects his considered philosophy, why does he seem so reluctant to own that philosophy? (I’ve noticed that a number of individuals who spout truly offensive racist rhetoric nevertheless object to being labeled racist. But that’s an observation for another day…)

The university’s response, in my view, was exactly right. It’s an approach that respects both the First Amendment and the right of students to have their classroom performance fairly and equally evaluated.

Indiana University Provost Lauren Robel did not mince words in a statement to the Kelley School community Wednesday, asserting that Rasmusen had used his social media accounts to push bigoted views for several years. Robel said Rasmusen had previously used slurs to describe women, who he has said do not belong in the workplace and academia. He has similar feelings about gay men, Robel said, because “he believes they are promiscuous and unable to avoid abusing students.”

Robel also said Rasmusen thinks black students are unqualified for attendance at elite institutions and are academically inferior to their white counterparts….

“Ordinarily, I would not dignify these bigoted statements with repetition, but we need to confront what we are actually dealing with in Professor Rasmusen’s posts,” Robel wrote. “His expressed views are stunningly ignorant, more consistent with someone who lived in the 18th century than the 21st.”

She indicated that school officials have been flooded with demands for Rasmusen to be fired in recent days, a request she said the university could not — and would not — adhere to because “the First Amendment of the United States Constitution forbids us to do so.” But, she said, Rasmusen would be in violation of the law and school policy if he acted upon his discriminatory views while grading or making tenure decisions. The school would investigate and address those allegations if they were raised, she added.

The university will ensure that students worried about being treated fairly in Rasmusin’s classes–an understandable concern, given the persistence with which he has voiced his views over the years– have alternative courses available to them, and administrators are requiring him to use a double-blind system for grading so he won’t know whose papers he is evaluating.

Are faculty members who espouse Rasmusin’s particular brand of conservatism rare on elite American campuses? Of course. His views are blatantly inconsistent with academic competence. They are inconsistent as well with the legitimate conservatism that does have a place in academic discourse.

Defending bigotry by calling it “conservatism” is an insult to genuine conservatives. Unfortunately, there’s a lot of that going around…

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A Different Kind Of Coup

Remember Darth Vader–aka Dick Cheney–and his theory of the “unitary executive”? Cheney wasn’t the only devotee of expanded power for the Presidency–it turns out that William Barr is a true believer, and far more dangerous than most of us previously realized.

A recent article in the American Prospect is chilling.

I have Article II, where I have the right to do whatever I want as president,” Donald Trump said in a recent speech to a far-right-wing campus organization. Trump is not a constitutional scholar, and he would not care at all about “constitutional architecture” were he not president. So where did this sweeping claim to executive power come from?….

But for Trump’s attorney general, William Barr, and others on the right, the effort to take power for the president from the courts and especially from Congress has been a 40-year project. Barr and his comrades may find statements like “I have Article II” crass and narcissistic, but in their view Trump is generally correct. Executive power maximalists argue that the “original intent” of the framers of the Constitution was to create a strong president with concentrated power and a largely advisory Congress.

The author notes that the most dangerous presidential power–and one that Trump’s lawyers are currently asserting– is the power to withhold information from Congress and the American people.

Neither Congress nor the courts nor voters can effectively check power abused in secret. And Congress’s power to require information from the president may be the power most difficult to reclaim if Congress yields that power in a tactical retreat in advance of the 2020 election.

Evidently, the expansion of presidential power–and the corresponding evisceration of Congressional authority–has been a 40-year mission for William Barr.

Barr (one of the original founders of the Federalist Society) worked in the Reagan White House with a group of lawyers who argued that the presidency had improperly lost constitutional powers after Watergate. Edwin Meese even asserted that the president could disregard Supreme Court decisions with which he disagreed.

Even very conservative legal scholars consider these assertions unfounded, and there is virtually nothing in the historical record that would support them. (The entire point of  “checks and balances” was to thwart an internal “coup” that would turn the president into either a monarch or a servant of Congress.)

After efforts by Reagan’s lawyers to challenge Congressional oversight failed in the Supreme Court,

Barr wrote and circulated throughout the executive branch a militant memorandum entitled “Common Legislative Encroachments on Executive Branch Authority.” The memo called for aggressive challenges to Congress’s claims to authority: “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”

As the author notes,

The bread and butter of congressional oversight of the executive branch is to examine executive branch actions and the reasons for those actions. According to Barr, none of that is any of Congress’s business.

Throughout his Executive Branch service, Barr–together with Cheney– has insisted that the President can ignore not only Congressional demands for information, but laws with which he disagrees.

The entire article is worth reading, because it gives needed context to the otherwise inexplicable behavior of William Barr today–behavior that is causing significant morale problems among the professionals at DOJ.

The following paragraphs are representative.

BARR WAS OUT OF GOVERNMENT through the Clinton, George W. Bush, and Obama presidencies, but remained a constant presence in rightist legal circles. On June 8, 2018, Barr sent an unsolicited memo to Rod Rosenstein, the deputy attorney general to whom Robert Mueller then reported, and to Steve Engel, who headed the OLC, entitled “Re: Mueller’s ‘Obstruction’ Theory.” Trump’s firing of Jim Comey as director of the FBI could not be obstruction of justice regardless of Trump’s motives, Barr argued, because the president’s power to remove executive branch officials is “illimitable.”….

BARR AND OTHERS ON THE RIGHT have sought relentlessly for four decades to concentrate power in the president and strip power from Congress. Barr’s legal arguments sound haughty and scary to all but the most ardent Trump supporters. But Barr is committed to presidential power with or without legal authority and with or without public support. And he will advance presidential power by any means necessary, which includes frivolous legal arguments and dilatory tactics forbidden by court rules and canons of legal ethics, and false testimony forbidden by criminal law.

I can’t imagine what philosophy of government would lead someone to Barr’s conclusions, but it is abundantly clear that he represents a clear and present danger to the Constitution as it exists, and to the Separation of Powers it clearly requires.

His attacks on separation of church and state are equally dangerous, but that is an issue for another day…

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What Is The Remedy For A McConnell?

An article I read in Vox a month or so ago has continued to bother me. The subject-matter was summed up in the sub-head: “The political system has an answer for a threat like Donald Trump, but none for a threat like Mitch McConnell.”

If Trump often acts like he is above the law, it is only because McConnell lets him. If McConnell decided to lead Senate Republicans in investigating and curbing Trump’s corruption, abuses of power, and obstruction of justice, Trump’s options would be to reform his behavior or be ejected from office.

The article goes on to make a point that is so obvious it is often overlooked. Despite their  differences (McConnell is evil, calculating and smart, Trump is mentally disordered, undisciplined and stupid) they do have one thing in common. They are both utterly shameless.

At the core of this is McConnell’s peculiar form of political shamelessness. This is the way McConnell and Trump are more similar than is often appreciated: they have both proven that the range of political action is disciplined less by external constraint than by a politician’s sense of shame — the degree to which they turn back in the face of public criticism, media opprobrium, elite backlash.

It was shamelessness, for instance, that let McConnell refuse to hold a hearing on Merrick Garland and then, grinning, admit that he’d fill a Supreme Court seat if one came up in 2020. McConnell’s predecessors held the same power he did and none of them attempted that maneuver. They weren’t restrained by laws or rules. They were restrained by temperament and a belief that to break the system was to betray the public.

When political scientists talk about “democratic norms,” it is the restraints of temperament and fidelity to tradition and rules that they are referencing.  McConnell has demonstrated his rejection of political accountability, and the system has no mechanism for dealing with someone who acts as if the rules simply don’t apply to him.

The Founders designed our form of government with demagogues in mind. That’s why the president is checked by Congress, up to and including the threat of removal. But they believed that Congress would consider itself in competition with the president, that ambition would check ambition. They did not foresee the rise of political parties and the way that would bring parts of Congress into cooperation with the president, that ambition would protect ambition.

The political system has an answer for a threat like Donald Trump but none for a threat like Mitch McConnell.

McConnell isn’t simply ignoring duties imposed by the Constitution; he is– as the Vox article says–shameless. His actions defy our expectations of normal human behavior, not because he is breaking the rules in order to benefit himself (lots of people do that), but because he is publicly flaunting his violations and daring observers to do anything about them.

As Rochefoucauld said, hypocrisy is the tribute that vice pays to virtue. McConnell is withholding that tribute. He doesn’t even pretend to behave honorably; his entire, smug demeanor says “I’m demolishing longstanding norms and traditions because I can and there is nothing any of you can do about it.”

The only remedies available are political: McConnell could lose his Senate race in 2020, or Democrats could take the Senate, removing his authority to do significant damage. Given that he represents Kentucky, the first is unlikely. (Possible, but unlikely.)

The second, I submit, is mandatory. Both he and Trump have to go, and only massive turnout will rid us of both of them.

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