Politics And The Courts

I hate sports analogies, but sometimes, they just fit.

For those of you who are sports fans (I am not one of you), here’s a question: how much would you enjoy watching a game if you knew that the umpire or referee had been bribed, or even just recruited from a group of rabid fans of one of the teams on the field?

The decisions America’s founders incorporated in our constitution haven’t all stood the test of time–exhibit one, the Electoral College–but one that has was their determination that  the judiciary should be protected from political pressure to the extent possible.

There are sound reasons that federal judges are not elected–not “answerable” to the public in the same way that members of the legislative and executive branches are.

When we discussed judicial independence in my classes, I didn’t use the sports analogy; instead, I would pose a different hypothetical: let’s say you live in a small town where you are a party to a lawsuit. Trial is in the local court, where the judge has been elected. What if the lawyer representing the other guy was one of the biggest donors to that judge’s campaign, and is a regular at the judge’s Wednesday night poker get-together? If the judge ruled against you, how likely would you be to believe you’d been judged fairly and impartially?

Or let’s assume a judge is presiding over a high-profile case in which a majority of local folks are emotionally invested. Assume too that controlling law is on the side of the publicly disfavored position–and further assume that the judge is facing re-election. She’s a widow with a mortgage and a couple of kids in college, and she knows that following the law means losing the election.

You get the picture. Even if every judge in these hypotheticals is a paragon of virtue who ignores personal considerations and “calls them like s/he sees them,” public trust in the process would be hard to maintain.

Separation of powers was the division of our government into three branches. Two of those branches were intended to be answerable to public opinion, even public passion. The third was tasked with being an impartial arbiter, insulated from electoral pressure. When judges are wrong–and there are plenty of times they will be–we want them to be wrong because they misread the law, not because they were in thrall to donors or interest groups.

That’s why the constitution requires an appointed judiciary in the federal courts, a decision that has slowed–but certainly not stopped–efforts to politicize America’s court system.

It is admittedly impossible to keep politics completely out of the judicial selection process–especially selections for the Supreme Court. But the problem is far worse in the large number of states that continue to elect their judges. A recent report from Governing Magazine shows just how far state-level politicians (mostly, but not exclusively, Republicans) will go to game the court system.

Last Monday, Republicans in the Louisiana House tried to pass a proposed constitutional amendment to redraw election districts for the state Supreme Court, while adding two seats to it. The effort came up short, but it was just the latest move by a state legislature to try to change how high court justices are elected. Just three days earlier, Illinois Gov. J.B. Pritzker, a Democrat, signed a bill that redraws election districts for his state’s Supreme Court, a move observers believe is aimed at maintaining his party’s 4-3 majority in next year’s elections. And Republicans in Montana and Pennsylvania passed bills in the past year to create districts for their high courts, both of which currently have progressive majorities and whose members are now elected statewide.

The article focused on what it termed “judicial gerrymandering,” and like all gerrymandering, the goal is unearned power. In states across the country, politicians are redrawing their state’s high court election districts in ways that favor their party’s candidates.

Admittedly, there is no way to entirely insulate courts from political pressures. Here in Indiana, where a judicial nominating committee considers candidates for the State Supreme Court and sends three names to the Governor, it’s a given that the ultimate choice will be someone from the Governor’s political party. For that matter, the committee members will be impressed (or repelled) by the identities and politics of the people “lobbying” for particular candidates.

Nevertheless, Indiana’s process significantly attenuates the role played by partisanship. It recognizes that when the umpire is effectively a member of one of the teams on the field, the teams and their fans are all losers.

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Investigating Rural Rage

Over the past several years, it has become impossible to ignore America’s urban/rural divide. The causes of that divide are subject to debate, and the focus of a good deal of research. Back in 2018, Robert Wuthnow–a noted scholar– published a book based upon eight years of interviews with rural folks across the country. It was titled The Left Behind: Decline and Rage in Rural America, and Wuthnow was interviewed about his findings by Sean Illing of Vox.

it made for fascinating, albeit depressing, reading.

The interviews were conducted between 2006 and 2014, and included people in every state in the country. The research team limited its focus to small towns with fewer than 25,000 people and excluded those close to suburbs or cities in recognition of data showing that suburban and exurban cultures differ from those of more isolated small towns.

Approximately 90 percent of small-town America is White, a demographic factor that explains a great deal (although Wuthnow notes that diversity is growing even in these precincts, as Latinos increasingly settle in them).

Wuthnow argues that the anger being expressed in rural America is less about economic concerns and more about the “perception that Washington is threatening the way of life in small towns.”

And just how, Illing asks him, is Washington accomplishing that?

I’m not sure that Washington is doing anything to harm these communities. To be honest, a lot of it is just scapegoating. And that’s why you see more xenophobia and racism in these communities. There’s a sense that things are going badly, and the impulse is to blame “others.

They believe that Washington really does have power over their lives. They recognize that the federal government controls vast resources, and they feel threatened if they perceive Washington’s interest being directed more toward urban areas than rural areas, or toward immigrants more than non-immigrants, or toward minority populations instead of the traditional white Anglo population.

These attitudes have hardened as small-town America has continued to empty out. These smaller communities have lost population steadily over the last few decades, and Wuthnow’s interviews and the book’s title reflected that reality. As he points out,

It’s not as though these people are desperate to leave but can’t. They value their local community. They understand its problems, but they like knowing their neighbors and they like the slow pace of life and they like living in a community that feels small and closed. Maybe they’re making the best of a bad situation, but they choose to stay.

They recognize themselves as being left behind because, in fact, they are the ones in their family and in their social networks who did stay where they were. Most of the people I spoke to grew up in the small town they currently live in, or some other small town nearby. Often their children have already left, either to college or in search of a better job somewhere else.

In that sense, they believe, quite correctly, that they’re the ones who stayed in these small towns while young people — and really the country as a whole — moved on.

That feeling of being left behind generates resentment–and that resentment is directed toward politicians they don’t like and especially toward people who don’t look or pray the way they do.

Wuthnow also found significant fear of change– expressed as a fear that traditional moral rules were “being wiped out by a government and a culture that doesn’t understand the people who still believe in these things.”

I think the concerns about moral decline often miss the mark. I think a lot of white Americans in these small towns are simply reacting against a country that is becoming more diverse — racially, religiously, and culturally. They just don’t how to deal with it. And that’s why you’re seeing this spike in white nationalism.

Wuthnow cautions against painting rural America with too broad a brush, and of course he’s right. Not all small towns are filled with seething reactionaries, just as not all urban neighborhoods are enclaves of brotherly love. Still, the data about opioid addiction and suicide rates should give pause to the notion that every small town is Mayberry or Green Acres or even Schitt’s Creek.

I missed Wuthnow’s book when it came out. I need to find it, because in the three years since its publication, the anger he studied has gotten more delusional and considerably more dangerous. It’s as if the people Wuthnow interviewed were fireplace tinder, and Trump and his sycophants were the arsonists who lit the match…

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How To Be Happy

Almost every morning, this blog highlights problems. It’s usually a downer, I know. (I often tell friends that, sometimes, having the ability to vent regularly is all that keeps me from searching for a glass of hemlock.) But every so often, I’m reminded that we really don’t live in a dystopia, and that lots of folks–including yours truly–are pretty happy most of the time.

Granted, it’s a lot easier to be happy when you are a middle-class privileged person with a nice place to live, enough to eat, and perfect grandchildren. But we all know people who manage to be happy despite life circumstances that are anything but comfortable, raising the question: why? Why are some people seemingly hard-wired for happiness–or at least contentment–while others who appear incredibly fortunate, apparently enjoy being miserable?

Are misery and happiness basically genetic, or is there a role for public policy? Several countries seem to think that policy plays a part.

Several years ago, when my husband and I visited Bhutan, I remember being impressed with that country’s Gross National Happiness Index. So much more humane than the economic measures we favor in our “advanced” country! The United Nations also sponsors a Happiness Index (which usually finds Denmark’s citizens to be the world’s happiest). In 2016 the UAE installed a Minister of State for Happiness. In 2019, New Zealand introduced a wellbeing budget to ensure policies consider citizens’ quality of life.

Happiness has also become the focus of academic study. Some time back, the Guardian ran an article on the Happiness Research Institute in Copenhagen. The Institute is an independent think tank, founded in 2013 to “look at happiness from a scientific perspective”, by analyzing data to figure out why some folks are happier than others and–more importantly– how societies can boost their citizens’ wellbeing.

The article questioned Meik Wiking (the “happiness guru”), who founded the Institute, about the impact of the pandemic on happiness.

What the pandemic has done is underscore the joy of simple pleasures. The link between happiness and money has been well-documented over the years and while, in general, rich people are happier than poor people, it’s not that money buys happiness but that “being without money” and unable to afford food and shelter causes unhappiness. Once you’ve passed a certain threshold, “if you’re already making good money, and you make £200 extra, you buy a more expensive bottle of wine but it doesn’t matter”….

Covid-19 has also diminished the possibility for social comparisons. “There’s an American saying that ‘A happy man is a man who makes $100 more than his wife’s sister’s husband,’ and that concept shows up a lot in the data,” says Wiking. We derive pleasure from being more successful than our neighbours or friends – but become anxious when we’re not. By purging our social media feeds of sparkling shots of Michelin-starred meals and island getaways, the pandemic has reduced angst, envy and fear of missing out.

Genetics clearly plays a role in happiness, as studies of identical twins have demonstrated, and researches have also documented what they call “the natural rhythms of life,” finding a “U curve” in which happiness tends to be highest when we’re young and again when we’re old–or at least, past middle age. Where we live is also important– least-happy countries include war-torn Syria, Burundi and the Central African Republic.

“I don’t think we can go to people in refugee camps and say, ‘Listen guys, happiness is a choice,’” says Wiking. “We need to acknowledge external and genetic conditions and not put the entire responsibility on the individual.”

The happiest 10 countries – the Nordics, the Netherlands, New Zealand, Switzerland – are all wealthy, so money matters. But so does policy. Countries with similar GDPs have very different levels of life satisfaction, and some poorer nations, such as Costa Rica, score high.

According to Wiking, a nation’s success at converting “wealth into wellbeing” mostly comes down to its ability to eliminate sources of unhappiness. Denmark’s widespread access to education and healthcare removes anxiety- inducing competitiveness. Wiking says that the Nordic countries are not the happiest in the world – they’re the least unhappy.

What I found when I was doing research for my book God and Country supports Wiking’s thesis. People in countries with strong social safety nets were not only happier than Americans, they were less violent. And of course, if happiness is undermined by comparisons with those who have more than we do, America’s current “gilded age” is a constant “in your face” source of discontent.

Public policies can’t change your DNA. They can’t turn pessimists into optimists or make grief over loss less wrenching. But–as Wiking says–good public policies can make you less unhappy.

And that’s not nothing.

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The GOP Ditches Property Rights

For those of us who used to belong to a very, VERY different Republican Party, the most bewildering–and infuriating–feature of the cult that has replaced it is its blatant hypocrisy. A political party that used to favor free trade, fiscal prudence, individual liberty and property rights has cheerfully abandoned its devotion to those–or for that matter, any– principled approaches to civil liberties.

Granted, rational folks in both parties understood that your liberties aren’t absolute, and that concern for the public good–public health, national security and other social requirements– will necessarily constrain your ability to do whatever you want whenever you want. But once upon a time, the arguments between serious folks tended to be about specifics: when is it legitimate for government to limit certain liberties?

Thanks to the devolution of the Republican Party, virtually all of its once-sacrosanct principles have become disposable.

Free trade? When Donald Trump decided to impose tariffs–long considered unthinkable by the Grand Old Party–the cult jettisoned its prior beliefs and embraced them.

Fiscal prudence? These days, fiscal responsibility–not necessarily balancing the budget (the preference of a fringe unwilling to understand why such a constraint could be dangerous) but a commitment to imposing taxes to pay for government programs is long gone. The party that recoiled from Democrats’ perceived willingness to “tax and spend” became the party opposed to any and all taxes, especially on those most able to pay them. If the government really has to “do stuff,” today’s GOP favors”borrow and spend”–put it on the national credit card and let the next generation pay for it.

Individual liberty? That principle has been rewritten too. Now, it’s highly selective. Republicans are all for your “liberty” to act in ways with which they agree. They believe you should have the “liberty” to ignore public health mandates and decide for yourself whether to wear a mask (i.e., the “liberty” to infect your neighbor), but they remain adamantly opposed to a woman’s liberty to control her own body. They support your liberty to communicate racist sentiments, but not your liberty to voice your disapproval of those sentiments–that’s “cancel culture.”

And of course, they support the liberty of anyone and everyone to “pack heat,” but oppose even the most reasonable constraints to protect public safety.

And what about property rights? The GOP long defended property rights, arguing (I believe properly) that the government that can confiscate your property poses a danger to other civil liberties. After all, if the government can infringe your property rights in retaliation for the exercise of  your right to freedom of speech or religion, how likely are you to exercise those rights?

Apparently, property rights are also old school. As an article from The Week put it, the GOP no longer believes a man’s cruise ship is his castle.

“Texas is open 100 percent,” Gov. Greg Abbott (R) said in a Twitter video Monday, “and we want to make sure you have the freedom to go where you want without limits.” To that end, Abbott said, he signed a law banning any business or government entity in the state from requiring documentation of a COVID-19 vaccination or recovery for entry (commonly called vaccine passports).

Abbott cast the legislation as a bold strike for freedom, but it’s nothing of the sort — not in the sense the American right has traditionally understood the term, anyway. Though it may be said to enhance consumer choice, it is a betrayal of private property rights, which have long been core to visions of small government in the United States.

The article quotes James Madison’s 1829 address, in which the father of our Constitution explained “that the rights of persons, and the rights of property are the objects for the protection of which Government was instituted. These rights cannot well be separated.”

Abbott begs to differ. Evidently, Texan business owners have no right to determine what happens on their property. Abbott isn’t the only Republican governor to  ignore property rights. Florida’s Ron DeSantis has banned vaccine passports, including those required by cruise ships departing from Florida.

Ironically, as the article notes, reliance on property rights allowed  the right to win many battles purportedly over religious liberty.

On questions like whether Catholic employers should be made to pay for employees’ birth control, whether conservative bakers should be forced to bake for a gay wedding, or whether Christian adoption agencies should be required to place children with same-sex couples, the right’s religious liberty position has long been buttressed by property rights: If you own the business, the argument goes, you should be able to make these calls as your conscience directs.

These days, however, only when your conscience points you in a GOP-approved direction.

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Mitch McConnell Issues A Threat

This morning, I’ve created a theoretical exercise. it’s intended to put you in the proper frame of mind to consider the latest outrage from Mitch McConnell–aka the most dangerous man in America.

Assume we are watching a TV western. The sheriff–having won a hard-fought election in his scruffy border town by promising to keep the residents safe from (unspecified) “bad guys”–issues a proclamation promising to deal severely with law-breakers. Well, maybe not all law-breakers. He’ll deal severely with any law-breakers who supported his opponent in the election.

If someone who supported him breaks the rules, however, he says he’ll look the other way.

If we encountered  a show with that plot device, we’d be incredulous–not only is that not what we mean when we champion law and order, we’d turn the TV off while muttering about the ridiculous premise–after all, when TV bad guys decide to engage in nefarious acts, they don’t typically broadcast that intention. If that storyline did appear in our fictional TV episode, we’d expect the local folks–including those who’d supported the sheriff– to rise up and run him and his co-conspirators out of town, thereby reinforcing the primacy of justice over partisanship.

Which brings us to Mitch McConnell.

After the Senate confirmed Judge Ketanji Brown Jackson to the Court of Appeals for the District of Columbia (Jackson, a Black female jurist, will replace Merrick Garland), McConnell reacted with a threat.

In an interview with the conservative radio commentator Hugh Hewitt, Mr. McConnell said Republicans would most likely block any Supreme Court nominee put forward by Mr. Biden in 2024 if Republicans regained control of the Senate in next year’s elections and a seat came open.

Along with most lawyers, I was astonished and infuriated in 2016 when McConnell brazenly refused even to consider Obama’s Supreme Court nomination of Merrick Garland, piously intoning that it was “too close to the presidential election,” although that election was months away and nominees had previously been confirmed to the Court during similar timeframes..

As we all saw, that excuse was shown to be the partisan hogwash it was when Trump nominated, and McConnell pushed through,  Amy Coney Barrett a mere six weeks before the November election.

Republicans who had banded together in 2016 at Mr. McConnell’s urging and declared that it was not appropriate to confirm a Supreme Court nominee during an election year had remarkable conversions in the case of Judge Barrett. The Republican leader insisted that he had not changed his position, arguing that because Mr. Obama was a Democrat, it was entirely appropriate for members of his party to block his nominee.

“What was different in 2020 was we were of the same party as the president,” Mr. McConnell told Mr. Hewitt. “And that’s why we went ahead with it.”

Partisan misuse of power, in McConnell-land, is “entirely appropriate.”

America without the rule of law would not be America. As far short of our aspirations and stated beliefs as this country has often fallen, it still seems absolutely incomprehensible that a high-ranking, powerful political figure would publicly–proudly!– trumpet his intention to ignore so foundational a principle.

I often refer to the rule of law, assuming readers understand its importance. The shorthand we all hear is: the same rules apply to everyone. Maybe that’s too abstract.

As an educational site maintained by the US Courts defines the concept:

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: Publicly promulgated, Equally enforced, Independently adjudicated; and consistent with international human rights principles.

The Trump administration waged an unrelenting attack on the rule of law, culminating with Trump’s pardons of some of its sleaziest transgressors. But even Trumpers as morally and ethically compromised as Bill Barr drew the line at publicly announcing their disdain for fair and equal application of the rules.

McConnell is the sheriff from my mythical TV show–the guy who publicly announces that the rules don’t matter–that whenever possible, he will ignore fundamental fairness and the national interest, and exercise power solely to privilege his partisans.

In a very real sense, he has promised  a coup. 

Michael Flynn must be so pleased.

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