Why Judges Matter

I was astonished when I read this report in The Washington Post, mostly because the judge was so obviously, incredibly wrong about both the law and the facts.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

A first-year law student would know that “religious freedom” does not give citizens the right to harm others. I used to explain to my students that your sincere belief that God wants you to sacrifice your newborn does not trump laws prohibiting you from doing so.  As “originalist” Justice Scalia wrote in Employment Division, Department of Human Resources of Oregon v. Smith, general laws prohibiting drug use take precedence over the plaintiffs’ right to participate in tribal religious observances that included smoking peyote.  

Smoking peyote during a religious ceremony didn’t harm anyone. A requirement that military personnel be vaccinated  protects others against a very dangerous disease. It would clearly be constitutional even if vaccine denial posed a genuine religious concern.

But it doesn’t.

The fact is that no religion  (with the possible exception of Jehovah’s Witnesses and Christian Scientists, who don’t believe in any medical science) teaches vaccine denial. If I simply invent a “religious” precept that is not grounded in the actual doctrine of my faith, I can hardly demand that American courts respect my “religious” beliefs.

I was sufficiently incensed by this ridiculous ruling that I decided to Google the judge, who–unsurprisingly–is a high-profile member of the Federalist Society.

Here’s what the Texas Tribune had to say about him when he ruled that Obamacare was unconstitutional. (Remember that?)

In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

The Obamacare decision, which was reversed by higher courts, was criticized by both conservative and liberal legal scholars as misguided and politically motivated.

The conservative legal scholar Jonathan Adler and the liberal legal scholar Abbe Gluck came together to write in The New York Times that the decision “makes a mockery of the rule of law and basic principles of democracy.

O’Connor is routinely described as a reactionary, and his vaccine decision is just the most recent evidence that he ignores legal precedents incompatible with his far-right politics. In 2015, he held a portion of the federal Gun Control Act of 1968 unconstitutional and enjoined the federal government’s definition of marriage in the Family and Medical Leave Act of 1993.

In 2016, as previously noted, he struck down an Obama administration rule requiring that transgender students be allowed to use the bathroom corresponding to their gender identity. In 2018, he ruled that the Indian Child Welfare Act was unconstitutional. That 1978 law was passed in response to concerns over the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. It gave tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.

It goes on.

O’Connor’s rulings are frequently reversed, but the damage done goes far beyond the time and money wasted on appeals. The initial publicity garnered by his off-the-wall rulings gives an aura of legitimacy to arguments that have no legitimacy, and that are inconsistent with settled constitutional precedents.

Thanks to this decision, people will die. Unnecessarily.

Judges matter.

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Just Watch This Interview!

The Indiana legislature has begun its session, and the usual “culture warriors” who dominate that body thanks to Republican gerrymandering are already posturing about covid mandates and suggesting legislation that will incentivize and reward vaccine denial.

Despite GOP rhetoric about “freedom,” and the party’s steadfast, “pro-business” opposition to most regulation (Republicans pander to business through low tax rates and by turning a blind eye to pollution and other anti-social business behaviors), several lawmakers are proposing to overrule individual business owners who require their workers to be vaccinated.

This video sent to me by a reader shows the utter stupidity–and danger–of such intrusions into what should be decisions made by private businesses.

You really need to watch at least the first five minutes of this interview with the head of OneAmerica, an insurance company headquartered in Indianapolis. He makes two extremely important points:

  1.  Some businesses–his among them– need to have their employees return to the office, but large numbers of vaccinated employees are unwilling to do so if any of their co-workers will be unvaccinated;
  2.  Insurers are finding that death rates among working-age Americans have skyrocketed--they are 40% higher than actuarial tables and prior experience would predict, and the pandemic is responsible, both directly and indirectly. (Not all these deaths are from contracting Covid; many are the result of hospital overcrowding that has prevented or delayed needed care. Etc.)

You need to WATCH THE VIDEO.

The GOP politicians who are feeding anti-vaccine mythologies and rewarding dangerously anti-social behaviors are making a mockery of freedom (we are “free” only if we agree with them, evidently).

Their proposed tax give-backs/bribes cannot hide the fact that they are waging war on business– and in the process, killing Americans.

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Disorder In The Court(iers)

Schadenfreude alert!

I really shouldn’t have been surprised by this article in The Washington Post. After all, we’ve  all encountered the sorts of people who have continued to support Donald Trump, and –to put it as kindly as possible–maturity, mental health and measured analysis are not among their most obvious characteristics.

The far-right firebrands and conspiracy theorists of the pro-Trump Internet have a new enemy: each other.

QAnon devotees are livid at their former hero Michael Flynn for accurately calling their jumbled credo “total nonsense.” Donald Trump superfans have voiced a sense of betrayal because the former president, booed for getting a coronavirus immunization booster, has become a “vaccine salesman.” And attorney Lin Wood seems mad at pretty much everyone, including former allies on the scattered “elite strike-force team” investigating nonexistent mass voter fraud.

After months of failing to disprove the reality of Trump’s 2020 presidential election loss, some of the Internet’s most popular right-wing provocateurs are grappling with the pressures of restless audiences, saturated markets, ongoing investigations and millions of dollars in legal bills.

The article characterizes the current state of affairs as a “chaotic melodrama,” and notes that it is being conducted–childishly, as you might suspect–through “secretly recorded phone calls, personal attacks in podcasts, and a seemingly endless stream of posts on Twitter, Gab and Telegram calling their rivals Satanists, communists, pedophiles or “pay-triots” — money-grubbing grifters exploiting the cause.”

I’m sure “snowflake” is in there somewhere too……

Our old catch-phrase–“follow the money”–is apt. The article notes that the infighting reflects the “diminishing financial rewards” for the individuals and groups peddling right-wing disinformation. They are fighting over a limited pool of viewer donations and subscriptions, over fees for appearances at rallies and conferences, and over sales of  books and merchandise.

In addition, tensions have evidently been exacerbated by the sudden, mysterious silence of QAnon’s faceless wacko, Q. Without Q, who should they follow? It’s a puzzlement!

The cage match kicked off late in November when Kyle Rittenhouse, acquitted of all charges after fatally shooting two men at a protest last year in Kenosha, Wis., told Fox News host Tucker Carlson that his former attorneys, including Wood, had exploited his jail time to boost their fundraising “for their own benefit, not trying to set me free.”

Wood has since snapped back at his 18-year-old former client, wondering aloud in recent messages on the chat service Telegram: “Could his life be “literally under the supervision and control of a ‘director?’ Whoever ‘Kyle’ is, pray for him.”

The article reports on the insults each faction is lobbing at the others: betraying the pro-Trump cause, or–much more serious–misusing the millions of dollars in funds that have gone to Pro-Trump groups.

Wood has posted recordings of his phone calls with Byrne, who can be heard saying that Wood is “a little kooky,” and Flynn, a QAnon icon who can be heard telling Wood that QAnon’s mix of extremist conspiracy theories was actually bogus “nonsense” or a “CIA operation.”

Best of all–at least from my perspective– the various groups are looking at massive financial liability.

Beyond the infighting, both sides are also staring down the potential for major financial damage in court. A federal judge last month ordered Wood and Powell to pay roughly $175,000 in legal fees for their “historic and profound abuse of the judicial process” in suing to overturn the 2020 presidential election. And Powell and others face potentially billions of dollars in damages as a result of defamation lawsuits filed by Dominion Voting Systems, which they falsely accused of helping to rig the 2020 race.

If you want to help them cover their legal bills and likely losses,  you can buy a four-pack set of “Release the Kraken: Defending the Republic” from Powell’s website, which also offers drink tumblers at $80. Or you can visit Flynn’s newly launched website and buy  #FightLikeAFlynn” women’s racerback tank tops–a “steal” (but not the “Big” one) at only $30.  Wood’s online store is selling $64.99 “#FightBack” unisex hoodies.

Evidently, the merchandising theory is that the “base” likes to wear items that advertise its politics. (Well, there are those red MAGA hats…)

A researcher of conspiracy theories is quoted as saying the arguments “increasingly resemble the performative clashes of pro wrestling.” (He also points out that there is a limited number of people susceptible to being fleeced.)

There’s a lot more in the linked story, and it is all pretty much what you’d expect when  people who are different kinds of crazy go after each other. As a friend told me back in 2016, she was counting on the Trumpers’ sheer incompetence to save us…

What’s that definition of schadenfreude– Pleasure derived from another person’s misfortune.

I plead so guilty.

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A Scary, Sneaky Assault

While we’ve been distracted by the Right’s bogus hysteria about Critical Race Theory somehow being taught in the nation’s kindergartens, the more determined assault on education is evidently occurring on university campuses.

I have previously posted about the decision of Marian College’s President to eliminate that school’s department of Political Science–a decision made over the strenuous objection of the faculty. The scuttlebutt from people ostensibly “in the know” was that the move was motivated by the personal animus of the school’s right-wing (and widely disliked) President for the sole remaining tenured member of that department–a (gasp!) political liberal.

Evidently, however, what I thought was a petty move by an unpopular administrator at a small school wasn’t the “one-off” I’d imagined. According to the website The Baffler,

This is not the story of one department at one college. An hour’s drive to the northwest of Marian, at Purdue University, it is the English department that faced threats. Citing budgetary concerns, the board of trustees halted the acceptance of any new students and proposed cuts to non-tenured faculty. This includes the Master of Fine Arts program in creative writing, which until recently included the trailblazing Haitian American author Roxane Gay. Other departments at other universities and colleges around the country are facing similar cuts.

“The ostensible reason provided for these cuts and terminations is “prioritization,” a term used by university administrators to rank which programs deserve funding and attention. One such “prioritization” committee at St. Joseph’s College in New York described it as a ranking of “centrality and essentiality,” “demand and opportunity,” and “productivity, revenue, and resources.” If the terms sound like university administrator gobbledygook, that’s because they are, cleverly disguising administrative judgments as some sort of due process. Around the country it is terms just like these that have been thrown at social science and liberal arts departments. Suddenly, faculty in these departments are expected to justify why they exist and why anyone would need a degree in English.

According to the article, pseudo-business terms like “prioritization” are being used to disguise what are really politically motivated assaults on liberal education.

Prioritization routinely argues that engineering departments need to be the ones getting more money and resources from the administration. Unlike English or political science, which are seen as useless and pointless majors, engineering and computer science carry an implicit promise of a job. Who needs to have read Shakespeare or know about how our political system works when you can rush off to be one among the armies of coders who make our digiverse possible?

In reality, “prioritization” debates, particularly in deep red states, are excellent covers for changing the political demographics of American colleges and universities.

This is just the latest iteration of the Right’s longstanding effort to substitute job training and/or religious indoctrination for education. As Will Bunch recently wrote in the Philadelphia Inquirer,

you can draw a straight line between the country’s collective decision to stop seeing education as a public good aimed at creating engaged and informed citizens but instead a pipeline for the worker drones of capitalism, and the 21st century’s civic meltdown that reached its low point nearly one year ago, in the Jan. 6 insurrection.

Back in 1999, dismay over  that effort prompted me to post about the importance of the liberal arts.  

Studying the liberal arts gives students the worldview–the intellectual paradigm– citizens need in order to function in an era of rapid change.

We inhabit a world that is increasingly global and multicultural. Familiarity with human history, philosophy, literature, sociology and anthropology prepares us to encounter, appreciate and thrive in that world. Education in the liberal arts is based upon a profound respect for the importance of human liberty. The life of the mind requires freedom to access and consider any and all ideas, information, and points of view. Critical thinking cannot flower in a totalitarian environment.

Technocrats can live with Big Brother, but artists, poets and philosophers cannot.

Learning how to communicate, learning how to learn–and learning how much there is to learn!– are essential survival skills. If all one learns is a trade–no matter how highly compensated the particular trade might be–he or she is lost when that trade is no longer in demand. Even if that never happens, lack of familiarity with the liberal arts makes it far less likely that an individual’s non-work life will be full and rich.

Despite the Right’s distaste for expertise, evidence, and smarty-pants “intellectuals,” America desperately needs educated people. The survival of democracy requires an educated population– and there’s a significant difference between learning a trade, important as that may be, and becoming educated.

That difference is the liberal arts–and that’s why they are being targeted. 

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Fear Itself…

FDR famously declared that ” the only thing we have to fear is…fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.” It was 1933, and the country was still reeling from the Great Depression.

Almost 100 years later, the U.S. is dealing with a pandemic, but otherwise most of us are in far better shape than people were in 1933. (For that matter, there’s an argument to be made that if it wasn’t for the people holding an “unreasoning, unjustified” fear of vaccines, the pandemic would be largely behind us.) Our sour national mood is almost entirely attributable to a political environment  characterized by fear–a fear that has led to Congressional gridlock and refusal to deal with reality.

A friend recently sent me the results of a poll conducted by Axios–results that puzzled her. The poll showed heightened levels of fear across the political spectrum, but far higher  among those identifying as Republicans. She had a reasonable reaction: yes, rational Americans have reason to be fearful of Republicans’ persistent attacks on democratic institutions–but what do the Republicans fear? And why is fear so much higher among them?

Whatever they told the pollsters, I’m pretty sure that what most of today’s Republicans really fear is demographic change and the loss of White Christian privilege. It’s that fear that is motivating their frenzied attacks on democracy and “one person, one vote.” 

There’s an enormous amount of research corroborating that conclusion. Over the past decade, as popular culture and media outlets have paid more attention to their demographic decline, Americans who equate “real Americanism” with being White and Christian have seen headlines describing the waning of their share of the population; in 2017, numerous outlets headlined the fact that the country’s White Christian population had dipped below 50% for the first time.

Or, as one 2019 headline put it, “White Christian America ended in the 2010s.”

The author of the article, Robert P. Jones, heads up the Public Religion Research Institute. He wrote

Of all the changes to identity and belonging, the century’s second decade has been particularly marked by a religious sea change. After more than two centuries of white Anglo-Saxon Protestant dominance, the United States has moved from being a majority-white Christian nation to one with no single racial and religious majority.

When I first identified this shift mid-decade in my 2016 book “The End of White Christian America,” I noted that the percentage of white Christians in the general population had dropped from 53 percent to 47 percent between 2010 and 2014 alone. Now, at the end of the decade, only 42 percent of Americans identify as white and Christian, representing a drop of 11 percentage points.

Jones recited the statistics: since 2010, the number of White evangelical Protestants has dropped from 21 percent of the population to 15 percent. Today they are roughly the same size as their white mainline Protestant cousins (15 percent vs. 16 percent, respectively).

In 2017, the U.S. Census Bureau reported that, for the first time, there was an absolute decline in the country’s white, non-Hispanic population. In other words, whites not only lost ground as a proportion of the population, but in actual numbers; there were more deaths than births. The U.S. Census Bureau now predicts that the U.S. will no longer be majority-white by 2045, and among children at every age below 10, whites are already a minority.

Research tells us that White Christians have become deeply anxious about the future and unrealistically nostalgic for the past. That anxiety and nostalgia “has fueled support for Trump’s “Make America Great Again” agenda, and not just among white evangelicals.”

Solid majorities of each white Christian subgroup voted for Trump in 2016 and, in the Public Religion Research Institute’s most recent American Values Survey, nearly 9 in 10 (88 percent) white evangelicals and approximately two-thirds of both white mainline Protestants (68 percent) and white Catholics (65 percent) oppose impeaching and removing him from office.

White Christian America’s attraction to Trump has little to do with his personality or character — a slim majority (52 percent) of white evangelicals, for example, say they wish his speech and behavior were more like previous presidents — and everything to do with something more important: their belief that “making America great again” necessarily entails restoring white Christian demographic and political dominance.

These are the fears that motivate today’s GOP base–its opposition to immigration and hysteria over “Critical Race Theory,” among other things, and its determination to retain social dominance and privilege no matter how unconstitutional or unChristian the means and no matter how damaging to the nation.

Fear is a potent motivator but a very bad navigator.

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