Public Policy and Governance – Page 132

Corrupting The Judiciary

There is a bedrock principle of ethical behavior that requires avoiding conflicts of interest. If someone serves on a board or commission, for example, and a pending case has been brought by a relative or close friend, we expect that person to recuse–to abstain from participation in the decision.

When the issue is judicial behavior, it is even more important to avoid even the appearance of bias or impropriety, because the legitimacy and effectiveness of the judicial system depends upon public confidence in the probity and disinterestedness of judges.

One of the (multitude of) problems with Trump’s nomination of unqualified judicial candidates that Mitch McConnell then rams through the confirmation process is that ethical behavior is one of the qualifications a number of them appear to lack.

A recent report originally penned by David Badash for The New Civil Rights Movement is a troubling example.

Legal experts are scratching their heads after a federal judge appointed by President Donald Trump announced on Tuesday he is delaying handing down his decision in a Trump tax returns case until other federal judges hand down their decisions in other Trump cases. That judge is a former Trump transition team volunteer and has donated to the Trump campaign.

District Judge Trevor McFadden of the U.S. District Court for the District of Columbia announced he will hold up his ruling in a case brought by the House Ways and Means Committee against the U.S. Treasury Dept. The case involves gaining access to six years of Trump’s tax returns. The law clearly says the IRS “shall” hand them over to Congress. The Trump administration says Congress has no right to investigate.

This is not a case where legal or factual complexities require time-consuming analysis. This is a case in which a judge has a blatant conflict of interest, and should have recused himself.

Judge McFadden has already exhibited bias in his handling of the case, which was originally brought last August. According to Politico, he denied House Democrats’ request to expedite consideration of the case as well as their request to rule on its merits, despite the fact that this would seem to be a textbook case for summary judgment.

Now, he has informed the parties that he will not rule on the matter until the court that is considering a challenge to the subpoena of former White House lawyer Don McGahn has ruled. He has not offered an explanation for that delay, nor indicated what the McGahn case has to do with the litigation before him–undoubtedly because (as lawyers and legal commentators have noted) there is simply no connection between the issues in the two cases.

The only explanation that makes sense is that Judge McFadden is trying to help the President avoid disclosure of his taxes. Since the law is clear and unambiguous– a ruling in favor of Trump would be a too-obvious gift to a favored litigant–he is apparently trying to avoid ruling at all until after the election.

The Executive Editor of Above the Law summed it up as a “Trump judge trying to look for a way to prop up Trump’s terrible arguments without looking like he’s a Trump judge.”

It is no longer possible to ignore the fact that Trump, Barr, Pence, Pompeo and others in the administration are deeply corrupt. We are just beginning to realize just how much Trump’s terrible judicial choices have added to the rot and corruption.

And according to the Washington Post, one in every four circuit court judges is now a Trump appointee …

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An Immodest “Modest Proposal”

Talk about “thinking outside the box”!

Ever since the 2016 election, there has been increasing concern voiced about the blatantly undemocratic aspects of American governance–the Electoral College, of course, and the enormous impact of money in politics–but also the fact that the “majority” party in control of the Senate represents about fifteen million fewer people than the “minority” party.

Changing these inequities through the constitutional amendment process would be a fool’s errand. Given the political environment, and the difficulty of the process, it ain’t gonna happen.

We could work around the need for constitutional changes, however, if we followed the advice of a recent article in the Harvard Law Review. As Vox explains,

An unsigned note, entitled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation” and published in the Harvard Law Review, offers an entirely constitutional way out of this dilemma: Add new states — a lot of new states — then use this bloc of states to rewrite the Constitution so that the United States has an election system “where every vote counts equally.”

To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

The Constitution provides for the admission of new states through an ordinary act of Congress requiring a simple majority vote. If it weren’t for a different provision–one that prevents new states from being “carved out” of existing ones unless the legislature of the existing state consents– we might just root for the folks who are trying to divide California into three states.

Since it’s unlikely that California’s legislature– or that of any other state–would agree to be split, the alternative is to chop up the District of Columbia. That gets around the constitutional problem because Washington, DC, isn’t a state.

Similarly, the Constitution effectively prohibits amendments that eliminate Senate malapportionment. The Harvard note proposes getting around this problem by transferring the Senate’s powers to another body. “The Senate’s duties,” it argues, “could be changed without modifying its composition.

Details aside, however, the wild thing about this Harvard Law Review proposal is that it is absolutely, 100 percent constitutional. The Constitution provides that “new states may be admitted by the Congress into this union,” but it places no limits on the size of a state either in terms of population or in terms of physical space.

It turns out that there is a long and ignoble history of partisans admitting new states in order to give their party an added advantage in the Senate. Vox notes that In 1864, Republicans admitted Nevada — at the time a desert wasteland with a few thousand residents — in order to give the GOP two extra Senate seats.

We have two Dakotas because those same Republicans celebrated their 1888 victory by dividing the Republican Dakota Territory into two states, in order to get four senators rather than two. And thanks to gerrymandering, each rural vote is worth 1 1/3 of each urban vote.

As the article concludes:

So let’s be frank. The Harvard note’s proposal is ridiculous, but it is no more ridiculous than a system where the nearly 40 million people in California have no more Senate representation than the 578,759 people in Wyoming. As the Harvard note says of its own pitch, “radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live.”

Just because we’ve always done it that way doesn’t mean it makes sense.

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Who Are The Domestic Terrorists?

Who should we fear? I’ll give you a hint.

The men (they are almost always men) causing death and destruction are rarely Muslims. They are hardly ever immigrants. As a Texas Department of Public Safety report has recently confirmed, by far the largest threat to domestic safety and tranquillity comes from white racists and Incels.

And who–you would be forgiven for asking–are the Incels? Let Juanita Jean tell you.

Incels are white boys who couldn’t get laid at the Chicken Ranch even if they had a chicken under each arm and fifty dollar bill taped to their forehead. But, you always suspected that, didn’t you?

Or– in the less florid language used in the report,

Based on the prevalence of recently conducted attacks nationwide, White Racially Motivated (WRM) is currently the most violently active domestic terrorism type.

Although not a new movement, Involuntary Celibates (Incels) are an emerging domestic terrorism threat as current adherents demonstrate marked acts or threats of violence in furtherance of their social grievance.

Wikipedia defines Incels, as “involuntary celibates”– members of an online subculture who are unable to find a romantic or sexual partner despite desiring one, a state they describe as inceldom.

A recent article in the New Yorker says that what Incels want is “extremely limited and specific: they want to be able to have sex on demand with young, beautiful women. They believe that this is a natural right.” The article subhead calls this what it is: a belief in male supremacy.

Vox goes further, in an article detailing how a support group for the dateless became one of the internet’s most dangerous subcultures.

Over the past two decades, the incel community, which numbers somewhere in the tens of thousands, has fallen under the sway of a profoundly sexist ideology that they call “the blackpill.” It amounts to a fundamental rejection of women’s sexual emancipation, labeling women shallow, cruel creatures who will choose only the most attractive men if given the choice.

Taken to its logical extreme, the blackpill can lead to violence. The mass media has focused on the risk of more mass killings like Toronto and others before it, and that is indeed a serious concern. But the focus on incels as potential killers risks missing a more subtle threat: that they will commit acts of everyday violence ranging from harassment to violent assault, or simply make the women in their lives miserable.

A column in the Washington Post suggests that the Incel movement is an extreme and worrisome symptom of the struggle men face in a changing society.

Today, the incel subculture has become not just self-reinforcing but self-radicalizing, often with tragic outcomes. At its most horrifying extremes, self-described incels have taken their anger out on the women they believe are refusing them. At least two mass shooters have left behind manifestos identifying themselves as adhering to incel ideology and explaining their actions as taking revenge on the world that hasn’t given them the women they think they deserve.

Meanwhile, in Texas, Governor Abbott is “safeguarding” citizens of the Lone Star State by refusing to accept refugees–who, according to all available research, pose no threat to public safety.

And in the nation’s capital, the Trump administration is caging (brown) children and excluding (and vilifying) Muslims. Worse, they are actively encouraging the racists and white nationalists who, along with the Incels, are responsible for the vast majority of domestic terror attacks.

They’re determined to make America great again– for straight white “Christian” men.

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Ideology And Climate Change

Most of Australia appears to be on fire. The extent of the devastation is hard to comprehend–as this is written, 24 people have been killed, 15.6 million acres burned (so far), hundreds if not thousands of homes destroyed, and an estimated billion animals killed.

Yet, as Vox reports, government officials in Australia continue to downplay the link between climate change and the wildfires– Prime Minister Scott Morrison insists that the country doesn’t need to do more to limit its greenhouse gas emissions. The government is apparently willing to shirk its duty to protect the population and the environment in order to protect the country’s powerful mining sector.

There’s a strong scientific consensus that links climate change to the number and severity of the wildfires.In its 2018 “State of the Climate” report, the Australian Bureau of Meteorology warned that climate change had already ushered in a long-term warming trend and was also responsible for changes in rainfall that increase the risks of wildfires.

It isn’t only Australia. The effects of climate change are appearing everywhere. In Indonesia, the capital city of Jakarta is sinking so quickly that officials are working to move it to another island. Pictures of Venice are heartbreaking. Other examples abound.

Here in the United States, the Trump administration is responding by rolling back numerous environmental measures that had been put in place both to combat pollution and address climate change. It sometimes seems as if the administration is trying to poison the air and water and actually accelerate climate change.

Sane people faced with an existential threat don’t behave this way. What explains it?

The Roosevelt Institute attributes this inexplicably destructive behavior to neoliberal ideology.

In Transcending Neoliberalism: How the Free-Market Myth Has Prevented Climate Action, Roosevelt Fellow Mark Paul and Anders Fremstad of Colorado State University present a coherent account of how neoliberalism has contributed to inaction. To do so, they explore three tenets of neoliberal ideology that have stymied action to address the climate crisis:

Decentralize democracy: A feature of the neoliberal order in the US has been the systematic decentralization of government. Neoliberals have promoted federalism to address “government failure” and subject the state to market forces, exacerbating the race to the bottom in climate policy.

Defund public investment: Neoliberals dismantled the Keynesian consensus that the state has a major role to play in providing public goods, stabilizing the macroeconomy, and solving coordination problems. In the neoliberal order, government investments are rejected as expensive and wasteful, crowding out productive private investments.

Deregulate the economy: Neoliberalism has launched a concentrated attack on government’s ability to regulate the economy. Ignoring the ability of regulations to positively shape markets, neoliberals dismiss government intervention as “red tape” that merely increases the cost of doing business.

Those tenets of neoliberalism have been mainstays of Republican policy at least since Reagan. To them, however, you have to add the rabid anti-intellectualism of the Trump administration–an anti-intellectualism married to an obsessive determination to undo anything Barack Obama accomplished. Trump has persistently worked to drive scientists out of government agencies, despite (or perhaps because of) the fact that those agencies’ effectiveness depend upon sound scientific evidence.

As the New York Times, among others, has reported,

In just three years, the Trump administration has diminished the role of science in federal policymaking while halting or disrupting research projects nationwide, marking a transformation of the federal government whose effects, experts say, could reverberate for years.

Political appointees have shut down government studies, reduced the influence of scientists over regulatory decisions and in some cases pressured researchers not to speak publicly. The administration has particularly challenged scientific findings related to the environment and public health opposed by industries such as oil drilling and coal mining. It has also impeded research around human-caused climate change, which President Trump has dismissed despite a global scientific consensus.

What is it that Neil DeGrasse Tyson always says? Reality doesn’t care whether you believe it or not.

If climate change makes the Earth uninhabitable–a result that is looking more and more likely– the cause will be stubborn ignorance and the willful elevation of ideology over evidence.

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It Isn’t Just Hanging Chads…

Americans are slowly becoming aware of the ways in which partisan redistricting and vote suppression are torpedoing the democratic ideal of “one person, one vote.” In the absence of something egregious like Florida’s “hanging chads,” however, we are still less likely to recognize the partisan effects of ballot design.

A recent article from the Washington Post focused on that issue.

It’s a political truism: The candidate whose name appears first on the ballot has an advantage over the competitors listed below. That’s not just folklore — numerous studies around the country have shown that candidates who are listed first receive more votes. The advantage is so marked that in Illinois, one of several states where ballot position is based on the order of filing, candidates wait in line overnight to gain the top spot.

I can attest to the accuracy of those studies. When I first became politically active (back in the Ice Age), Indiana awarded ballot positions alphabetically. A gentleman who had changed his name to Aaocker was a perennial candidate for a number of offices. He always ran in Republican primaries (back then, Marion County was solidly Republican), where turnout was lower, and he could be counted on to skim some 2000 votes from the others on the ballot.

I’ve lost track of Indiana’s current approach to ballot placement–I leave it to a reader to enlighten us–but ballot order is a state decision, and it varies widely from state to state. In November, a federal court blocked a ballot order law in Florida; that law automatically gave the top position in every race to the candidate of the last-elected governor’s party.

As a result of that law, Republican candidates have been listed first in every race on every ballot in the state for the last two decades. In 2016, Donald Trump’s name appeared before Hillary Clinton’s. In 2018, Ron DeSantis was listed above Andrew Gillum in the gubernatorial race, and Rick Scott was listed above Bill Nelson in the election for U.S. Senate.

The court found that first place on the ballot was worth five percentage points, and noted that Trump had defeated Clinton by just over one percentage point, that DeSantis won by four-tenths of a point, and Scott beat Nelson by just one-tenth of a point.

Florida Republicans are appealing the decision.

As the article points out, if the appeal is successful, we will face a situation not unlike redistricting; just as states manipulate district lines to advance partisan interests, states will approach ballot design from a similarly partisan perspective.

Without any judicial check, changing election rules for partisan advantage will become a tool for both parties. For example, the newly elected Democratic majority in Virginia could provide that Democratic candidates are listed first and Republican candidates are listed third. New Jersey could pass a law allowing Democratic candidates to be listed first with their party affiliation but limiting all other candidates to an alphabetical order without any party identification. New York could retain straight-ticket voting for Democrats but not for Republicans. Massachusetts could allow longer voting hours for registered Democrats than Republicans.

The fact that voters go to the polls so unprepared that they vote for the first name on a ballot’s list is depressing. When good government organizations urge people to vote, they are really encouraging them to cast an informed vote. But–as in so many areas of contemporary life–there’s a wide gap between the real and the ideal.

Allowing partisans to use that gap to undermine the choices of voters who are informed is cheating. But good sportsmanship is so last century….

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