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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What Pictures Do And Don’t Tell Us

As we head into what promises (threatens?) to be a pivotal year for American democratic governance, we do so in an environment unlike any that we have previously occupied. The “disinformation” industry has really come into its own over the past several years–filling the void that has been created by the near-demise of local journalism, and taking advantage of the enormous influence of social media.

The most recent weapons against facts and accuracy are visual: “deep fakes” in which the alterations are nearly impossible to detect. The influence of those fabrications on people who have lived in a world where “seeing is believing” is difficult to predict.

In a recent article from Axios Future, philosophers considered the challenge presented by deep fakes.

One possibility they considered: Technology might “erode the evidentiary value of video and audio” with the result that we begin seeing them the way we now see drawings or paintings —  rather than as factual records. In that case, all bets are off.

As the article put it,

Normally, when you receive new information, you decide whether or not to believe it in part based on how much you trust the person telling you.

“But there are cases where evidence for something is so strong that it overrides these social effects,” says Cailin O’Connor, a philosopher at UC Irvine. For decades, those cases have included video and audio evidence.

These recordings have been “backstops,” Rini says. But we’re hurtling toward a crisis that could quickly erode our ability to rely on them, leaving us leaning only on the reputation of the messenger.

One huge implication is that people may be less likely to avoid bad behavior if they know they can later disavow a recording of their mischief.

Just think how technological advances in deep fakes can affect political campaigns.

Just in time for the presidential election, the Brookings Institution shares news about a new technique for making deep fakes, invented by Israeli researchers.  It creates highly realistic videos by substituting the face of another individual for the person who is really speaking.

Unlike previous methods, this one works on any two people without extensive, iterated focus on their faces, cutting hours or even days from previous deepfake processes without the need for expensive hardware. Because the Israeli researchers have released their model publicly—a move they justify as essential for defense against it—the proliferation of this cheap and easy deep fake technology appears inevitable.

Can videos of Joe Biden using the “n word” or Bernie Sanders vowing fidelity to communism be far behind? As the Brookings article notes,

If AI is reaching the point where it will be virtually impossible to detect audio and video representations of people saying things they never said (and even doing things they never did), seeing will no longer be believing, and we will have to decide for ourselves—without reliable evidence—whom or what to believe. Worse, candidates will be able to dismiss accurate but embarrassing representations of what they say are fakes, an evasion that will be hard to disprove.

In our incredibly polarized political environment, the temptation to “cherry pick” information–to give in to the very human impulse to engage in confirmation bias–is already strong. We are rapidly approaching a time when technology will be able to hand partisans a plausible reason to disbelieve inconvenient news about a preferred candidate, while giving others desired “evidence” about an opponent’s flaws.

We can also predict that a political party willing to employ gerrymandering, vote suppression and a wide variety of political “dirty tricks” will not hesitate to use these tools.

Uncharted territory, indeed…..

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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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Listen to Rick Wilson

In the run-up to the Iowa caucuses (a period of time that has begun to seem interminable) and in the wake of the January Democratic debate, the identity of the Democratic party’s eventual nominee is still unknown. Whichever candidate emerges, however, he or she will face an incumbent and a party untethered to ethics and willing to employ a range of “dirty tricks” that far exceeds even the worst of what has gone before.

That nominee–and the Democratic Party–need to be prepared. They need to listen to Rick Wilson.

Wilson is a long-time Republican strategist. He is also one of the (comparatively few) “professional” Republicans who were horrified by Trump’s victory; he has spent the last three years advocating for a return to sanity and battling the conspiracy theories and “alternate facts” so beloved by Trump’s base. (I think–although I’m not sure–that he is the source of the “Vichy Republican” epithet widely used to describe Trump’s feckless GOP collaborators.)

Wilson has just come out with a new book: Running Against The Devil. His previous book was Everything Trump Touches Dies–the title doesn’t leave much room for ambiguity about Wilson’s opinion of The Donald, but just in case you didn’t pick up on his animus, he’s been quoted as saying that Trump will “go down in history with asterisks next to his name for endemic corruption, outrageous stupidity, egregious cruelty and inhumanity, for diminishing the presidency and the nation, and for being a lout with a terrible wig.”

Although I haven’t had a chance to read the new book, I did come across an informative review of it in The Guardian. Some excerpts:

Unlike most of the Washington reporters covering Donald Trump, Wilson, a Republican strategist and ad man, wastes no time trying to be fair or balanced about the career criminal who is the temporary occupant of the White House. His advice to Democrats is beautifully summarized in his epilogue:

Do not, as my party did, underestimate the evil, desperate nature of evil desperate people. Do not come to this fight believing that the Trump team views any action, including outright criminality, as off limits. [The 2020 election] is a battle that decides whether they have an unlimited runway to create a dynastic kleptocracy based on an authoritarian personality cult that makes North Korea look like Sweden, or whether the immune system of the Republic kicks in and purges them from the body public …

There is no bottom. There is no shame. There are no limits … He is surrounded by cowards with frightening and tremendous skills …

Wilson believes that the only thing that could save Trump in November would be a Democratic party “too stubborn, undisciplined and foolish to get out of its own way”–and those of us who follow such things know that such behavior on the part of the Democratic Party is a realistic possibility.

Democrats, in Wilson’s view, should emphasize foreign policy (a case that “makes itself”) and especially corruption.

Whether “it’s lobbyists for Wall Street banks, big coal, the payday loan industry, private prisons, or any other number of economic vampires, the Trump kakistocracy really does have something for everyone: nepotism, cronyism, pay-for-play, backroom deals for donors, abuse of power, lying to Congress … and as a bonus, monetizing cruelty to children.”

Trump, Wilson writes, is “sending a signal, loud and clear, that he’s for sale, satisfaction guaranteed.”

In November, we will see how many voters are buying the primary product Trump is selling–white supremacy and the demise of the American experiment.

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