Legacies

Scott Pruitt’s resignation prompted a number of columns devoted to the “legacy” he leaves–if legacy is the right word for “stench of corruption.” Those columns did get me thinking, however. about the “legacies” of other elected officials and political operatives.

Mitch McConnell’s legacy, for example, will include the badly tarnished and diminished legitimacy of Congress and the Court. McConnell’s willingness to ignore the Constitution’s mandate that the Senate “advise and consent” to a Presidential judicial nominee not only besmirched the reputation of the Senate, but added another blow to a series of events–beginning with Bush v. Gore— that have compromised the Court’s reputation for integrity and evenhandedness.

For his part, Trump is likely to leave several legacies–all profoundly negative–if, as we hope and pray, he does at least leave us with a recognizable country. But it is worth noting one of those legacies–the responsibility that he and McConnell share for the Supreme Court’s politicization and corresponding loss of legitimacy.

In a recent New York Times op-ed, law professors Lee Epstein and Eric Posner considered the way in which the growth of partisanship has affected the Court’s reputation, and wondered “whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.”

It hasn’t always been this way.

In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest. The gap between them has steadily grown, but even as late as the early 1990s, it was possible for justices to vote in ideologically unpredictable ways. In the closely divided cases in the 1991 term, for example, the single Democratic appointee on the court, Byron White, voted more conservatively than all but two of the Republican appointees, Antonin Scalia and William Rehnquist. This was a time when many Republican appointees — like Sandra Day O’Connor, Harry Blackmun, John Paul Stevens and David Souter — frequently cast liberal votes.

Today’s Justices are far more predictable, which is to say, far more ideological. And as Epstein and Posner note, it is much easier to assault judicial independence when the public sees the judiciary as just another political body.

The Court loses legitimacy when its reputation as an objective, nonpartisan arbiter of Constitutional fidelity is replaced by a belief that it is a political tool reflecting the priorities of the partisans who selected the Justices.  It’s worse when a majority of those Justices represent world-views held by only a minority of Americans.

In a recent article, Kevin McMahon considered the effect on the Court’s legitimacy.

Since Donald Trump lost the popular vote in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters.

Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.

Consider Gorsuch. He was supported by a majority of senators – 51 Republicans and three Democrats. But the votes earned by those 54 senators only added up to a total of 54,098,387.

The 45 senators who opposed Gorsuch, all Democrats, collected 73,425,062 votes in their most recent elections – a nearly 20 million-vote difference.

There are now three Supreme Court justices – Clarence Thomas, Samuel Alito and Gorsuch – that fit the description of a “minority justice.” And they are the only three in the nation’s history.

Now, there is a possibility of a fourth “minority justice” – the second appointed by a “minority president.”

That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America?

These are the questions that ought to keep our elected Senators and Representatives up at night–but very few of the people we have elevated to the federal legislature seem to know or care about anything other than winning and losing elections.

Their “legacies” will be the abandonment of America’s constitutional framework–and any concept of statesmanship.

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Chilling…And Compelling

One of my favorite anecdotes about the early days of America’s newspapers comes from a friend who has edited a number of small-town papers and is something of a journalism history buff.  Early newspapers did no reporting; they were just compilations of the circulars generated mostly by the political parties. According to my friend, the masthead of one such publication  proclaimed “interesting, if true.”

That pretty much sums up my reaction to a recent, lengthy and unnervingly persuasive article in New York Magazine.

And that was before Trump’s disastrous, groveling presser with Putin in Helsinki.

The article was written by Jonathan Chait, whose previous work I have found solid (to the extent I am capable of making such judgments). Chait didn’t claim his thesis is proven, only that it is plausible. It was a “what if” speculation that looked at the entirety of what we knew before that outrageous betrayal of his oath of office .

The unfolding of the Russia scandal has been like walking into a dark cavern. Every step reveals that the cave runs deeper than we thought, and after each one, as we wonder how far it goes, our imaginations are circumscribed by the steps we have already taken. The cavern might go just a little farther, we presume, but probably not muchfarther. And since trying to discern the size and shape of the scandal is an exercise in uncertainty, we focus our attention on the most likely outcome, which is that the story goes a little deeper than what we have already discovered. Say, that Donald Trump Jr., Jared Kushner, and Paul Manafort told their candidate about the meeting they held at Trump Tower with a Russian lawyer after they were promised dirt on Hillary Clinton; and that Trump and Kushner have some shady Russian investments; and that some of Trump’s advisers made some promises about lifting sanctions.

But what if that’s wrong? What if we’re still standing closer to the mouth of the cave than the end?

The media has treated the notion that Russia has personally compromised the president of the United States as something close to a kook theory. A minority of analysts, mostly but not exclusively on the right, have promoted aggressively exculpatory interpretations of the known facts, in which every suspicious piece of evidence turns out to have a surprisingly innocent explanation. And it is possible, though unlikely, that every trail between Trump Tower and the Kremlin extends no farther than its point of current visibility.

Chait goes through the lengthy chronology of Trump’s connections with Russia, a chronology suggesting that the situation may be much worse than we now suspect. As he notes, publicly available information about the Russia scandal is extensive, but disjointed.

The way it has been delivered — scoop after scoop of discrete nuggets of information — has been disorienting and difficult to follow. What would it look like if it were reassembled into a single narrative?

It’s tempting to dismiss the article as yet another conspiracy theory in an age that seems to encourage them, but as Chait points out, the people who seem most convinced of its likelihood are not the radio shock-jocks or other “usual suspects.” They are people like John Brennan, former head of the CIA, and other high government officials.

If Chait’s “what if” speculation proves true, calling it “chilling” is an understatement.

If that’s true, we are in the midst of a scandal unprecedented in American history, a subversion of the integrity of the presidency. It would mean the Cold War that Americans had long considered won has dissolved into the bizarre spectacle of Reagan’s party’s abetting the hijacking of American government by a former KGB agent. It would mean that when Special Counsel Robert Mueller closes in on the president and his inner circle, possibly beginning this summer, Trump may not merely rail on Twitter but provoke a constitutional crisis.

And it would mean the Russia scandal began far earlier than conventionally understood and ended later — indeed, is still happening. As Trump arranges to meet face-to-face and privately with Vladimir Putin later this month, the collusion between the two men metastasizing from a dark accusation into an open alliance, it would be dangerous not to consider the possibility that the summit is less a negotiation between two heads of state than a meeting between a Russian-intelligence asset and his handler.

After that disgraceful press conference, Chait’s “possibility” seems all too likely.

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GOP’s Moment Of Truth

We really are in “never never” land. It is impossible to draw innocent conclusions from yesterday’s press conference following Trump’s private meeting with Vladimir Putin.  During yet another incoherent and unhinged rant, the President insulted America’s intelligence community and insisted that he believed Putin’s denials of election interference.

The “summit” with Putin came on the heels of disastrous meetings during which Trump insulted America’s closest allies and inflicted significant damage on important American alliances.  In stark contrast, he absolutely fawned over Putin– even after Putin made a point of coming 45 minutes late to their meeting, a public signal of disrespect that somehow didn’t enrage our notoriously thin-skinned POTUS.

At this point in the surreal saga that has been the Trump presidency, there is no longer any doubt about Russia’s interference in the American election. That case has been made over and over by American Intelligence officials, most recently, Dan Coats. It has been confirmed by the mounting number of detailed indictments filed and guilty pleas obtained by Bob Mueller.

Over at Vox, Ezra Klein has an exhaustive (and damning) list of what we now absolutely know.Not what we speculate, not what we surmise, but what we know.

Nevertheless, as Klein noted,

Standing next to Putin, Trump turned on America’s intelligence services, and again mused about how much better it might have been if Russia had cracked Clinton’s server and gotten her documents.

So while the entire world was watching, the President of the United States attacked agents of his own country and administration– and gave Putin a big wet kiss.

As Thomas Friedman wrote in the New York Times, 

Such behavior by an American president is so perverse, so contrary to American interests and values, that it leads to only one conclusion: Donald Trump is either an asset of Russian intelligence or really enjoys playing one on TV.

Everything that happened in Helsinki today only reinforces that conclusion. My fellow Americans, we are in trouble and we have some big decisions to make today. This was a historic moment in the entire history of the United States.

There is overwhelming evidence that our president, for the first time in our history, is deliberately or through gross negligence or because of his own twisted personality engaged in treasonous behavior — behavior that violates his oath of office to “preserve, protect and defend the Constitution of the United States.”

A Manchurian candidate committing intentional treason would have been more skillful. Even if–as a friend of mine posits–the Russian oligarchs who have financed Trump for years have him “by the short hairs”– the stupidity displayed at the press conference was counterproductive. This clumsy and irrational performance  just adds to the already overwhelming amount of evidence that (while he may or not be a knowing Russian asset) Trump is definitely seriously mentally ill.

The real question is: what will Congressional Republicans do with this incontrovertible, in-your-face evidence of traitorous behavior? How long can they pretend he is either competent or acting in America’s interests? As Friedman says,

Every single Republican lawmaker will be — and should be — asked on the election trail: Are you with Trump and Putin or are you with the C.I.A., F.B.I. and N.S.A.?

As former CIA chief John Brennan tweeted,

Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of “high crimes & misdemeanors.” It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin. Republican Patriots: Where are you??? 

Where indeed? They sure aren’t from Indiana. And I haven’t noticed much in the way of patriotism from other Republicans currently serving in the House or Senate.

The refusal of an American President to honor his oath of office–his refusal to protect and defend our country– is a Constitutional crisis. If GOP lawmakers continue to put their own interests and those of their party above their duty to the country, if they continue to abet this President’s erratic and treasonous behavior, history will not be kind to them.

Hopefully, neither will the voters.

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Controlling Our Brave New (Digital) World

Now that Net Neutrality rules have been eliminated by Trump’s FCC, the question is: how will the repeal affect ordinary Americans? What consequences will be seen by the millions of Americans who turn increasingly to the Internet for everything from information to entertainment to commerce?

The Brookings Institution has at least a preliminary answer.

On June 11, 2018, the Federal Communications Commission’s repeal of the Open Internet Order—the net neutrality rules—went into effect. In the wake of this change, Americans are wondering how the repeal will affect them, and what it means for the future of internet access. Though consumers may not see changes quickly, the shift on net neutrality undermines the nation’s history on network regulation, creating a new era in how these networks operate in America.

So–in this brave “new era,” what can we expect?

The “quick and dirty” answer is: it depends. For one thing, there is a pending court challenge to the FCC’s authority to repeal Net Neutrality. For another, the Senate has passed Senate Joint Resolution 52, officially disapproving the repeal.  (Under the Congressional Review Act,  Congress can undo recently created rules by federal agencies.)

It still has to pass in the House, and then be signed by the president, which makes its prospects dicey, but perhaps Mueller will have completed his investigation…

That said, the need for a vote in the House should make protection of Net Neutrality an issue in the upcoming midterms. Every Congressional candidate should be asked whether they will vote to reinstate the rules. In December of last year, the Hill reported that 83% of Americans support Net Neutrality.

The pending court case is a consolidation of twelve separate challenges to the FCC’s authority to repeal the rules. The 12 lawsuits were filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies.

(If there is a Justice Kavanaugh sitting on the Supreme Court, and the case reaches the high court, its prospects dim: Kavanaugh is on record opposing Net Neutrality on the grounds that Internet providers are publishers, and protected from government interference by the First Amendment. Equating companies like Verizon and AT&T with media outlets like the New York Times requires some convoluted logic. )

More encouraging, a number of states aren’t waiting for Congress or the courts. California, not surprisingly, looks to be first out of the gate with a “robust” protection of Net Neutrality, but a number of other states are in the process of crafting similar bills.

The latest version of the bill restores provisions that would prevent broadband providers from exempting some services from customers’ data caps and would ban providers from charging websites “access fees” to reach customers on a network or blocking or throttling content as it enters their networks from other networks, according to a fact sheet released by Wiener, Santiago, and state senator Kevin de León.

The enumerated practices are those that big telecom companies are expected to engage in now that the FCC has repealed national protections.

The new version of the bill needs to be approved by both houses of the California Legislature, then be signed by Governor Jerry Brown. From there, it could face legal challenges from the FCC, which prohibited states from adopting their own net neutrality protections when it repealed the national net neutrality rules. During the press conference, Santiago said the California bill would stand up to legal scrutiny. Legal experts have told WIRED they are unsure whether the FCC has authority to preempt state law on the issue.

As 83% of Americans understand (at least in this context), this administration’s indiscriminate war on all regulatory activity more often than not just favors big business over the rest of us.

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A Partisan Supreme Court

Now that we know a bit more about the Federalist Society’s nominee, I guess it’s time to talk about the Supreme Court.

In no particular order, and for what they are worth, here are some observations about the Court, the process and this nominee.

The Supreme Court was not intended to be a “democratic” (small d) entity; quite the contrary. The judicial branch is supposed to be a nonpartisan constraint on majoritarian passions when those passions threaten Constitutional principles and the rule of law. That said, its judges are supposed to be broadly representative of the (best of) our citizenry.  This nominee is the choice of a President who lost the popular vote by a margin of nearly three million, and whose approval ratings have rarely exceeded 40%; if he is confirmed, it will be with the votes of Senators from states with (an arguably unrepresentative) 45% of the population.

As one legal scholar has commented (link unavailable),

I think we’d all agree that the nation has been fairly evenly divided, all things considered, in presidential and congressional elections over the past 50 years. Yet there has been a Republican-appointed majority of the Court for the past 47 years, and that’s likely to continue for at least another 20-30, if not more. It doesn’t much matter what label we use to describe our system, “democracy” or otherwise. The salient point is that it is very possible that for my entire adult life–even if I am fortunate to live to a ripe old age–the Justices will not have been representative of the nation, and will have been systematically skewed in one direction for the entire period.

Over at Balkinization, Mark Graber points to a conflict between this nominee’s actual–highly partisan– jurisprudence and the “cliches” he and Trump use to describe his judicial philosophy:

Donald Trump and Brett Kavanaugh offered the American people two clichés when describing how Supreme Court justices should decide cases.  The first is that they must interpret the Constitution as written.  The second is that they should use common sense.  One problem is that in many important cases the two conflict.  The more serious problem is that when the two conflict, Kavanaugh always selects the option that promotes Republican policies and politics.

In 2012, Stephen Pearlstein wrote a column about one of Kavanaugh’s decisions, a decision invalidating EPA regulations that had been the subject of exhaustive research, numerous hearings, and years of negotiations with industry and environmental groups. (I strongly encourage you to click through and read the whole column.) Reading Kavanaugh’s decision, Pearlstein says

You’d have no idea that, in earlier decisions, the same court had found it a reasonable formula resulting in reasonable compliance costs, but sent an earlier version back to be reworked because it didn’t make the air clean enough.

Instead, what you get is 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.

You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts.

You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.

In other words, an arrogant and activist judge ruling on the basis of his personal political ideology.

Kavanaugh’s approach to gun laws also follows partisan predilections justified as respect for history and tradition. Because “semiautomatic rifles have not traditionally been banned and are in common use,” he has written,” they are protected under the Second Amendment.”

What happened to that professed commitment to common sense?

Perhaps the most comprehensive descriptions of Kavanaugh’s record–and reasons to oppose his elevation to the Court– are contained in a letter signed by hundreds of alumni of Yale and its law school. I strongly encourage reading that letter in its entirety, because it details numerous specific positions the judge has embraced (including his opposition to mandating coverage of pre-existing conditions by health insurance companies, and a truly bizarre opinion that Net Neutrality rules run afoul of the First Amendment). As the letter argues:

Support for Judge Kavanaugh is not apolitical. It is a political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people. Without a doubt, Judge Kavanaugh is a threat to the most vulnerable.

Much of the opposition to this appointment centers on Kavanaugh’s likely approach to Roe v. Wade. But Roe–which has already been “nibbled” to death in many states–is just the tip of a very large iceberg. Kavanaugh has consistently elevated religious doctrine over personal autonomy, and has disputed the existence of a wall of separation between church and state.

In the age of Trump, however, a position taken by Kavanaugh that I find even more chilling is his current view that Presidents should be above the law, at least while in office. As the Yale alumni wrote,

Judge Kavanaugh would also act as a rubber stamp for President Trump’s fraud and abuse. Despite working with independent counsel Ken Starr to prosecute Bill Clinton, Judge Kavanaugh has since called upon Congress to exempt sitting presidents from civil suits, criminal investigations, and criminal prosecutions. He has also noted that “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” This reversal does not reflect high-minded consideration but rather naked partisanship. At a time when the President and his associates are under investigation for various serious crimes, including colluding with the Russian government and obstructing justice, Judge Kavanaugh’s extreme deference to the Executive poses a direct threat to our democracy.

Does Judge Kavanaugh have the credentials and intellect to serve on the Court? Certainly.

Does he have the intellectual humility and “spirit of liberty” that Learned Hand once defined as “the spirit which is not too sure that it is right… the spirit which seeks to understand the minds of other men and women… the spirit which weighs their interest alongside its own without bias”?

Not even close.

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