Category Archives: Constitution

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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Freedom From? Or Freedom TO?

The lyrics from an old song keep running through my head. “If I knew you were coming, I’d have baked a cake, baked a cake…”

Unless you’re gay, of course.

Today, the Supreme Court will hear oral arguments in a case that will determine which version of that song we’ll sing.

Masterpiece Cakeshop insists that its cakes are “art,” and that the Constitution protects the refusal of the “artist”–aka the guy who bakes the cakes– to bake them for LGBTQ folks. According to the baker, forcing him to sell his “art” to anyone with the money to purchase it compels him to express approval of something his religion condemns–in this case, same-sex marriage.

Those of us who are old enough to remember when “sincere” religious belief was the argument advanced by retailers refusing service to African-Americans tend to frame the issue differently: Does either clause of the First Amendment operate to exempt people from complying with laws of “general application”?

The word “theocrat” gets thrown around a lot these days, and for perfectly understandable reasons, but the question the Court will address is the inverse of what we usually mean when we use that term. Theocracy implies the imposition of one group’s religious beliefs on the nation as a whole through law–using the power of the state to enforce conformity with the religious precepts of a dominant sect.

Here, the question is whether and when respect for an individual’s (presumably sincere) religious belief should exempt that individual from compliance with rules that everyone else must follow. Under what conditions–if ever– should the law allow such exemptions? During prohibition, I’m pretty sure that most Americans–even ardent prohibitionists– would distinguish between Catholics sipping wine during Mass and party-goers imbibing bathtub gin. When the Supreme Court decided the Smith case, ruling that the use of peyote in an Indian religious ceremony was a violation of state drug laws (laws of “general application”) the resulting uproar was a sign that most people considered the decision to be an overly-zealous application of the principle.

When someone is asking to be exempted from a law that wasn’t originally intended to constrain their particular behavior, it may or may not be appropriate to grant the request. When someone wants to be excused from complying with a law that was expressly intended to protect other people from harm or discrimination, however, the calculus changes.

My religion might teach me that I have an obligation to sacrifice my first-born; my entirely sincere belief that I should do so will not exempt me from a law against infanticide. I might sincerely believe that my particular God has no problem with my stealing from people who don’t share my religious beliefs, but that sincere belief won’t keep me out of jail.

In short, my “religious liberty” defense fails when I invoke it to excuse noncompliance with  laws protecting others. Neither my right to “artistic expression/free speech” nor my liberty to believe in a religion of my choice gives me permission to mistreat or disadvantage others. As my friend Steve Sanders pointed out in a wonderful op-ed for the New York Times  on Sunday, anti-discrimination laws regulate conduct, not expression. As he wrote, “if our baker/artist decided that he could not be true to his muse without the use of banned coloring agents, would the food safety laws have to yield? Of course not.”

It’s worth noting that the foregoing analysis generously assumes a sincere belief on the part of the objecting merchant, although it’s glaringly obvious that most people claiming religious or “artistic” exemptions are simply attempting to justify personal bigotries. Evidence of their lack of integrity makes the analysis easier, but it’s important to note that it doesn’t change the result–the claim fails either way.

If he’d known you were coming, gay couple,  Masterpiece Cakeshop should still have to bake you a cake…

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There’s No Alternative To We The People

In response to Monday’s post– in which I decried our current American tribalism and wondered whether we can breathe new life into e pluribus unum– a regular commenter, Tom Lund, wrote the following:

While we will be definitely in uncharted territory in many ways this could end up being a wonderful thing for this country if we can stay true to our principles and shrug off the division that is been forced on us and that which is already existed and reknit ourselves.  Tons of questions still remain and the cohesion that will likely be necessary to knit together a game plan will work and restore the social and political equilibrium of this country is a big unknown right now.  Hopefully, we can find a way out of this downward spiral but we’re the ones that are going to have to do it and do it by ourselves.

He is exactly right: we are the ones who must do it.

For quite some time, it has been possible for Americans to depend upon the courts to correct miscarriages of justice. Lawsuits have been our default mechanism for reminding government officials and others wielding power that the Constitution and the rule of law applies to them. Given the judicial appointments being made by the Trump Administration, it isn’t hyperbole to observe that the courts are unlikely to serve that important function for the foreseeable future.

To the extent that our reliance on the courts allowed us to “get lazy”–to forego exercising our civic “muscles”–that permissiveness is over.

Keith Whittington is a constitutional scholar who has argued that the Constitution operates in two ways: first, as a binding set of rules that can be interpreted and enforced by the courts, and second, through the political process, as a guide to and constraint upon political actors, who formulate “authoritative constitutional requirements”–who “construct” the Constitution– as they make public policy.

Another eminent Constitutional scholar has extended Whittington’s observation. In “Taking the Constitution Away from the Courts,” Mark Tushnet challenged our American tradition of judicial review–and even judicial supremacy. As the book’s blurb puts it,  

Many people, particularly liberals, have “warm and fuzzy” feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as “We the People of the United States.” The Constitution belongs to us collectively, as we act in political dialogue with each other–whether in the street, in the voting booth, or in the legislature as representatives of others.

We may agree or not with Tushnet’s argument, but given the reality of today’s political environment, his analysis reinforces Tom Lund’s conclusion: we’re the ones that are going to have to do it, and given the transformation of the judiciary that is currently underway–a transformation of the courts from protectors of the people to protectors of the plutocracy– we are going to have to do it by ourselves.

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Goodby To The Rule Of Law

It’s all quid pro quo, sleazy self-interest and graft in Trump’s swamp. The daily revelations–we’ve just learned that Commerce Secretary Wilbur Ross has been in business with Putin’s son-in-law, a connection that he somehow failed to disclose during his confirmation hearings—– tend to obscure the more pedestrian varieties of corruption and self-dealing that continue unabated while we are distracted by the Russian investigation and tweets from our embarrassing ignoramus-in-chief.

Case in point: Talking Points Memo had a recent article about AT&T’s planned acquisition of Time Warner for Eighty-six billion dollars. The deal is awaiting regulatory approval.

AT&T needs the Justice Department’s approval for that deal. Normally, that decision would be housed off at the Antitrust Division at the Justice Department. But no one thinks that’s how it works in the Trump Administration. AT&T needs Donald Trump’s sign off, possibly mediated through the hand of Jeff Sessions but maybe not. Indeed, there has already been quite a bit of concern on Capitol Hill that Trump would try to hold up the AT&T deal as a way to exert pressure on Time Warner.

Time Warner owns CNN, and we all know how fond President Belligerent is of “fake news” CNN. According to various sources, the White House has already put out word that it wants to condition approval of the merger proposal on AT&T’s willingness to pressure CNN to “improve” its coverage of the President.

When CNN broke the news about the imminence of a Mueller indictment, Roger Stone–a close friend of Donald Trump’s– went on a Twitter tirade so obscene that it got his Twitter account suspended. One Tweet was both specific and damning.

When AT&T aquires Time Warner the house cleaning at CNN of human excrement like @donlemon @jaketapper & dumbfuck @ananavarro will be swift

As Josh Marshall’s TPM article noted,

Obviously, Roger Stone can rant and wish all he wants. He was in a splutter and a rage. How can he know what AT&T is going to do? But let’s go back to one more thing we know. Roger Stone still regularly talks to President Trump. Is that what President Trump told Stone? That AT&T promised they’ll ‘clean house’ at CNN?

At this point, the quid pro quo is still hypothetical. But given what we know of Trump, his family, his business partners and professional associates (Paul Manafort, et al), the people he has chosen for his cabinet–it is all too plausible.

This is the way business is conducted in banana republics and corrupt, authoritarian regimes.

The essential element of the rule of law is that the same rules apply to everyone– governors and governed alike– that no one is above the law. Even under the most favorable analysis of Donald Trump’s business dealings, it would be hard to miss his disdain for the rules, his contempt for the legal system, and his conviction that neither applies to him.

Misuse of the power of the state–abuse of governmental authority–is an impeachable offense. One of the charges against Nixon involved his (mis)use of the IRS to punish personal enemies. If Trump does indeed allow the AT&T merger in return for a promise to eviscerate CNN’s independent coverage of the Administration, it would be a “high crime” for which impeachment is appropriate.

The difference, of course, is that for the Republicans who censured Nixon,  duty to country outweighed partisanship. The only thing today’s GOP has in common with that era’s Republican Party is the name.

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