Saving The Courts

Yesterday’s post focused on the unending stream of ideologues being elevated to the federal bench under Trump.

Assuming–as even the least optimistic among us must–that massive turnout in  2020 rids us of this ignorant, corrupt and malevolent administration and enough of its feckless enablers to change control of the Senate, how might a new administration rescue the federal courts from the partisanship that is tarnishing both their operations and reputations?

My graduate students have some suggestions.

In the take-home final examination I gave my graduate Law and Public Policy class, the following question was one of three from which they could choose to submit a concluding essay:

Over the past several years, the federal courts, and especially the Supreme Court, have come to be viewed by both political parties as political prizes. Rather than choosing nominees with sterling legal credentials, appointments to the courts have increasingly been based upon the nominee’s perceived political ideology. You have been elected President, and your party controls both houses of Congress. You want to return the courts to their status as respected impartial arbiters of the law. What changes would you make to the composition of the courts, the nomination process or otherwise in order to accomplish this?

I was surprised by the number of students who chose this question, and impressed by the thoughtfulness with which they approached it.

A number advocated Increasing the number of Supreme Court Justices, noting that their number is not mandated by the Constitution and has been changed previously. Most suggested a panel somewhere between 12 and 20.

Another popular proposal was the creation of a nonpartisan advisory committee composed of legal scholars, sitting judges and representatives of the ABA, who would be charged with coming up with–and thoroughly vetting– a slate of candidates from which the President would choose his nominee.Some students suggested analogous processes for the lower courts.

In recognition of the fact that people live far longer these days, several suggested limiting the terms of Supreme Court Justices–making their tenures long enough to remove the threat of political pressure that prompted the Founders to prescribe lifetime terms, but short enough to ensure more frequent turnover.

One student supported implementation of the “Supreme Court Lottery”  advocated by legal scholars Epps and Sitaraman. Under this proposal, “each judge on the federal courts of appeals would also be appointed as an Associate Justice of the Supreme Court.  When cases are heard, an appropriate number of these judges would be chosen at random to sit on the Supreme Court panel.”

Several students noted the need for a process to increase what one called “demographic accountability”–a judiciary that more closely reflects the composition of the population, and suggested ways this might be accomplished.

All in all, the number of students who chose to answer this question and the various suggestions contained in those responses suggests the existence of widespread agreement on at least two things: 1) the courts are in danger of losing legitimacy (perhaps it would be more accurate to say “in danger of continuing to lose legitimacy–a loss that really began to gather steam with the decision in Bush v. Gore) and 2) partisanship and extreme partisan polarization are to blame.

My students are not lawyers. I teach in a school of public affairs, not a law school, so some of the suggested “reforms” were impractical or otherwise fanciful. But the students in my graduate class tend to be older, employed, with families, and they are generally thoughtful and civically-engaged. During the semester, virtually all of them demonstrated deep concerns with the dysfunction, chosen ignorance, and theatrics that have replaced  working governance.

Of course, if the people who didn’t bother to vote in 2016 stay home again in 2020– if the electorate does not come out en masse to evict the criminals, buffoons and fellow-travelers who are running roughshod over America’s ideals and Constitution–  suggestions for reforms will continue to be beside the point.

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Another Stomach-Turning Appointment

While we are all transfixed by the Impeachment process, and by Republicans’ bizarre antics during the House Intelligence and Judiciary Committee proceedings, their Senate counterparts have been busy defiling the federal bench and giving a middle finger to the rule of law by confirming judicial nominees who are demonstrably unfit.

Ed Brayton recently reported on the confirmation of one such specimen: a creationist named Lawrence Van Dyke. Van Dyke is yet another Trump nominee rated “unfit” by the American Bar Association–ratings to which the Administration has responded by discontinuing the practice of asking the ABA for its evaluation of potential nominees.

When you don’t get the answers you want, just stop asking the questions…

In addition to being considered unfit by his legal peers, however, Van Dyke is apparently a real piece of work:

After conducting 60 interviews, the ABA found that VanDyke has a reputation as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” Video of VanDyke lecturing, scolding, and interrupting judges during oral argument while serving as Nevada solicitor general lends credence to that assessment…

VanDyke has a long record as an anti-LGBTQ activist. He wrote in 2004 that marriage equality “will hurt families, and consequentially children and society.” As the solicitor general of Montana, he advocated for the state to join two briefs alleging that legal recognition of same-sex relationships would harm children. The first claimed that prohibiting same-sex marriage promoted “optimal childrearing” because same-sex couples “cannot provide” the optimal “family structure.” And the second asserted that states “may rationally conclude” that “it is better” for parents to have a “biological” connection to their children…

How would you like to be an LGBTQ litigant whose claim was being adjudicated by this gem? As Brayton writes,

Only Trump would have even considered appointing this ignorant dolt to the federal bench. And since the Senate Republicans would confirm a ham sandwich if Trump nominated one, we’re now stuck with this mushhead for a lifetime.

A regular reader of this blog recently sent me an email asking whether Bill Barr could be impeached. As I told her, he could be–and he should be. But so long as Mitch McConnell is in charge of the Senate, he won’t be.

The New York Bar Association recently issued a statement to the effect that, if Barr refuses to recuse himself from the Ukraine investigation, he should resign or, failing that, “be subject to sanctions, including possible removal, by Congress.” It is certainly foreseeable that other bar associations, responding to inappropriate behavior by one of Trump’s questionable judicial appointments, might also call on Congress to issue sanctions– although doing so would raise a very real possibility of judicial retaliation against lawyers with suits pending in that courtroom.

More to the point, calling out judicial misbehavior is useless if the Senate remains in the hands of the same no-integrity Republicans who confirmed these specimens in the first place.

As important as it is to defeat Donald Trump in November, it is every bit as important–actually, it is even more important–to remove Mitch McConnell (aka the most evil man in America) and the Republican majority that has enabled him.

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The Disinformation Industry

A couple of days ago, the Washington Post published a review of “Trump and His Generals: The Cost of Chaos” by Peter Bergen.The review was very positive; while the reviewer acknowledged that Bergen hadn’t told us anything that hadn’t previously been reported, he was impressed with the book’s readability and clarity.

From the moment Trump strutted into the Oval Office, we have been buried by an avalanche of jaw-dropping revelations about what happens when an unhinged, cynical and impulsive commander in chief bumps up against professionalism, decency and the rule of law. So when opening a new book promising still more inside stories of Trump’s foreign policy, it is hard to expect an author to say anything new — especially when the book was written before the impeachment drama started. Perhaps the best one can hope for is something that helps put this craziness in perspective and lays out the stakes for the future.

The book is another addition to the reams of credible reporting and a veritable avalanche of previous books of widely varying quality, accuracy and readability. It’s hard to conceive how even the most politically disinterested American could fail to hear about the frenzied, ungrammatical tweets, the cozying up to autocrats, the insults to our allies, the threats to the environment…

Sane citizens are left to wonder why his supporters don’t seem to care. The answer is evidently that they don’t believe any of it. It’s all “fake news,” fostered by a cottage industry of disinformation and propaganda.

As the House Judiciary Committee convened Friday to approve articles of impeachment against President Trump, a watch party got underway in a private Facebook group that rallies its more than 75,000 members around the banner, “THE TRUMP DEPLORABLES.”

The comments that streamed forth in the group illustrate how Trump’s most ardent supporters have fashioned alternative realities for themselves — as well as for Republican lawmakers aiming to turn the charge of corruption back on those investigating the president.

The feed — from Fox News, a major source of news for the president’s supporters — showed the same scene available to viewers tuning in on various networks all over the country. But in the online enclave where the self-described “deplorables” had gathered to watch the committee vote, Democrats are the lawbreakers who “should be impeached,” as one viewer wrote. Trump’s word is truth. And the federal employees who question his version of events are not just mistaken, they are “scum,” as Trump labeled members of the intelligence community at a rally this week in Hershey, Pa.

The antics of the Republicans during the committee deliberations were off-putting and clownish to reasonable viewers, but they made perfect sense to Trumpers following live on social media,” in groups sealed off from general scrutiny, where facts are established by volume, and confirmation comes from likes.”

The effect of social media is to jack up the tenor of everything,” said Carl Cameron, who spent more than two decades as a reporter for Fox News before leaving in 2017. This year, he helped found Front Page Live, a liberal news aggregation site. “There’s a statement made by a witness, or an interaction with a lawmaker, and users are able to put together a counternarrative in real time.”

Cameron described the live comment streams as laboratories of right-wing talking points, most likely to attract viewers who already share a certain bias. These viewers are unlikely to change their minds, and thus shift opinion polling on impeachment, which has remained relatively stable.

But the talking points are then exported through other channels, he added, and eventually reach persuadable voters. Social media, he said, does not just echo but serves as an “amplifier, with powerful cross-pollination on the different platforms, until the talk eventually reaches the office water cooler or coffee machine, or the Thanksgiving table.”

I keep coming back to the incredible danger posed by a media environment that no longer produces a shared reality–a fragmented environment enabled by the Internet where partisans and lunatics alike can live in bubbles of their own creation, detached from those pesky things we used to call “facts.”

I lay awake worrying about the size of the alternate reality population, because when reality bites, it will bite us all.

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Revealing Metaphors

Mitch Daniels–formerly the Governor of Indiana–is the current President of Purdue University. He was appointed by Trustees of the University who–not so coincidentally–he had appointed to those positions, a somewhat incestuous situation that raised a lot of eyebrows.

Daniels’ performance as President, while entirely satisfactory to those same Trustees, has been controversial among educators. There was, for example, Purdue’s acquisition of for-profit Kaplan University, in order to create Purdue Global, a marriage which is evidently not going so well. Forbes reports that Purdue Global had a net operating loss of $38.4 million last year. There was also an initiative encouraging students to finance their educations by pledging a percentage of their future earnings to investors, which some have dubbed “indentured servitude.” But most grumbling has been quiet.

Remarks Daniels made a few weeks ago, however, sparked a national discussion. As G. Gabrielle Starr, the President of Pomona College, wrote in the New York Times,

In late November, the president of Purdue University, Mitch Daniels, told students that he will soon “be recruiting one of the rarest creatures in America — a leading, I mean a really leading, African-American scholar.”

“Creatures?” a student asked. “Come on.”

“It’s a figure of speech. You must have taken some literature,” Mr. Daniels said. “One of the rarest, let me say, rarest birds, rarest, rarest, rarest phenomena.”

In just a few sentences, Mr. Daniels seemed to question the possibility of sustained black excellence. In response to the uproar that swiftly followed, he complained that he had “never felt so misunderstood” and that he had simply used a “figure of speech.” On Wednesday, he apologized and retracted the statement.

When I learned about Mr. Daniels’s words from another African-American scholar on my own campus, I felt indignant but also constrained. The standard etiquette for college presidents, like me, is to let the remarks of another leader pass on by.

Even though he apologized, I can’t do that. The idea that scholars of color are rare is a damaging fiction. Yet it’s pervasive in academia, causing untold damage. It allows some faculty deans to simply throw up their hands and give up on their recruitment efforts. It leads to small recruitment budgets for minority candidates.

Dr. Starr noted that the Purdue faculty had pushed back on the notion that black scholars are “rare birds” and he went on to identify a few of the many outstanding African-American scholars:

After Mr. Daniels’s remarks, Purdue faculty members said in a statement that “the idea that there is a scarcity of leading African-American scholars is simply not true.” Indeed, one might look to scholarly societies for leading figures: Alondra Nelson, president of the Social Science Research Council; Elizabeth Alexander, president of the Mellon Foundation; Cecilia Conrad, a managing director at the MacArthur Foundation; and Claude Steele, chair of the board of the Russell Sage Foundation. Or leaders at American colleges and universities like Jonathan Holloway, provost of Northwestern; Raynard Kington, president of Grinnell College; and Michael Drake, president of Ohio State University.

Starr’s column is eloquent, and worth reading in its entirety, but I remain bemused by the nature of the outcry that followed Daniels’ remarks. Most of the criticism I saw focused not on the inaccurate and damaging notion that black academic success is rare, but on Daniels’ use of the term “creature.”

I do understand black sensitivity to language that seems to equate African-Americans with animals, given America’s unfortunate racist history. But we are all creatures, and this reference seemed– to me at least– far less reprehensible than Daniels’ obvious assumption that black intellectuals are few and far between.

I’ve taught at the university level for twenty years, and during that time, the number of African-American scholars on our campus has grown significantly. My black colleagues have contributed enormously– to the educations of our students, to the scholarly literature, and–perhaps more importantly–to the creation of an inclusive, multicultural campus culture. I have to assume the same is true at Purdue.

Do we have a way to go? Sure. But ignoring the substantial presence of black scholars in academia isn’t just inaccurate. It’s evidence of implicit bias–and it deserves to be called out.

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More Of This…

I don’t know about all of you, but I get positively desperate for good news. The American political landscape is so bleak–every day, it seems there is a new report of really egregious wrongdoing: trashing the environment, screwing over students and public education, kicking hungry children off food stamps,  the President’s corruption and conflicts of interest…the list is endless, and it’s all aided and abetted by the propaganda that litters the Internet.

As we head into 2020, the effectiveness of that propaganda has been enhanced by “deep fakes”–doctored photographs that look so real the distortions are difficult to detect.

Rather than sighing and wondering how effective this new method of disinformation will prove to be, Governing Magazine reports that a couple of universities are doing something about it.

If you were under any illusion that online hooey peaked with the 2016 election, brace yourself for the era of “deepfakes” — fabricated videos so realistic they can put words in the mouths of politicians or anyone else that they never said.

As the 2020 election approaches, a new University of Washington initiative aims to combat the wave of increasingly sophisticated digital counterfeiting and misinformation coursing through social media and give the public tools to sort fact from fakery.

The Center for an Informed Public (CIP) has been seeded with $5 million from the John S. and James L. Knight Foundation, part of a $50 million round of grants awarded this year to 11 U.S. universities and research institutions to study how technology is transforming democracy.

The mission is to use the new research to help everyone vulnerable to being fooled by online manipulation — whether it’s schoolkids unsure about which news sites are trustworthy or baby boomers uncritically sharing fraudulent news stories on Facebook.

Kate Starbird is a UW associate professor and one of the CIP’s principal researchers. She has spent years studying the spread of conspiracy theories and deliberate misinformation in the wake of crisis events like school shootings and the 2013 Boston Marathon bombing, and she says this is “not a K-12 problem. It’s a K-99 problem.”

Starbird and other researchers have examined millions of tweets and discovered how various actors, including foreign intelligence operatives, have worked to intensify political divisions in America.

In 2016, for example, Twitter accounts associated with Russia’s Internet Research Agency impersonated activists supportive and critical of the #BlackLivesMatter movement. Tweets from those accounts became some of the most widely shared. “Russian agents did not create political division in the United States, but they were working to encourage it,” Starbird recounted in a Medium post about the research.

Fighting the bots and trolls and pervasive propaganda is essential–but it won’t be easy.

The CIP grew in part out of the UW’s popular course, “Calling BS in the Age of Big Data,” created two years ago by West and biology professor Carl Bergstrom. The course is in such demand that its 160 seats filled within one minute of registration opening this quarter, West said.

Sam Gill, who leads community and national initiatives for the Knight Foundation, said he sees the new UW center as “sort of like the first public health school in the country for the Internet.”

The link between quality information and public health is not merely metaphorical, as Internet-fueled misconceptions about vaccines have contributed to outbreaks of measles and other diseases once thought eradicated. An ongoing measles outbreak in Samoa has killed 50 children.

Similarly, misinformation has made it harder for the U.S. to combat climate change, which scientists predict will wreak havoc in the coming decades unless big cuts are made in greenhouse-gas emissions. Emma Spiro, an assistant professor in the Information School and another CIP researcher, said there is already talk of collaboration with the UW’s EarthLab research institute to address climate knowledge.

I don’t think it is hyperbole to say that there is a war being fought between fact and deliberate fiction. We need new weapons in order to win that war.

I hope this very promising effort to create those weapons will be joined by many others.

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