A Blow To Judicial Independence

California held its primary election last week, and among the results was a successful recall of Judge Aaron Persky.

Persky was the judge who gave a six-month sentence to Brock Turner, a Stanford athlete convicted of sexually assaulting a woman who had passed out. The sentence was seen as a slap on the wrist, and in the #MeToo era, it aroused enormous anger.

I’m not arguing that the sentence was appropriate, or the anger unjustified. But recalling a judge whose decision in a case angers the general public is a serious and damaging assault on judicial independence. The Constitution gave us three branches of government–two of which are answerable to voters. Judges are supposed to be answerable to the Constitution and the rule of law.

As a public defender wrote in a column for Vox, 

This was the first successful recall in California in almost 90 years. Though the recall only involved one judge, its impact will be felt nationwide.

It sends a dangerous message to judges everywhere: If we don’t like one decision you make, you’re out. That represents a terrible threat to judicial independence and highlights the problems with electing judges — or subjecting appointed judges to reelection. They need the protection to think independently, even if they sometimes make decisions we don’t like.

I am not arguing that Turner’s sentence was the right one. Indeed, as a public defender, I am all too aware of the racial and class disparities in sentencing that redounded to Turner’s benefit. I have previously written about the ways privileged criminal defendants often are rewarded precisely because of their privileges. (One need look no further than Harvey Weinstein, who easily posted bail and did not spend a day in jail after his arrest.) But allowing an uninformed public to punish a judge for one unpopular decision jeopardizes the integrity of our entire system.

I was living in Indianapolis when a federal court judge ruled that the city’s public schools must be desegregated. It was not a popular decision, to put it mildly–in fact, it was so unpopular that the Judge required police protection for a prolonged period. If he could have been recalled, the schools might still be segregated.

One of the reasons I oppose judicial elections is that a judge who knows he must face voters is likely to weigh the merits of a case against the probable public reaction. If you are a judge with a mortgage and a couple of kids in college, how willing will you be to buck public opinion in a high-profile case?

Ironically, as the Vox article notes, the effects of this recall are more likely to be felt by the disadvantaged than by the privileged.

Given that the criminal justice system disproportionately targets and prosecutes the poor and people of color, the ones who suffer from judges feeling pressured to sentence harshly are not people with privilege like Turner, but those without privilege.

Judges have always had more incentives to punish harshly than leniently, and elections only increase these pressures. A Brennan Center for Justice study found that when judges are approaching reelection, they are more likely to impose harsher penalties. This is common sense, given that judges who have sentenced a defendant harshly rarely make the news….

When judges are looking over their shoulders, worried about losing their jobs if they enrage the public, the fairness of our system is compromised. Judicial independence is especially important because the public is often wrong, particularly on a local level.

Lawyers who actually practice in Judge Persky’s court–including the head prosecutor– report that he is a thoughtful, fair judge, and not known for leniency. In the Turner case, Persky had followed the probation department’s sentencing recommendation.

When we allow public outrage to  trump respect for judicial independence, we throw the baby out with the bathwater.

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File Under “Kick ‘Em When They’re Down”

A few days ago, a neighbor shared a blog post by a friend of hers.

The post referenced a recent report by the United Nations, accusing the Trump Administration of intentionally making life more difficult for poor Americans while taking steps to enrich the already privileged. I had seen an article on the report in the Guardian, but so far as I–and the author of this blog– know, that was the only news source that addressed it.

Were it not for the source, it would hardly be news to learn that the United States can’t take care of its most needy—that it may be the richest country, but it is also increasingly, appallingly, unequal in how its wealth and opportunities are shared. When the various dimensions of human security are examined, critics have long noted that the US falls short, whether in treatment of children, poverty rates, income gaps between rich and poor, or even life expectancy. All this has been amply documented in annual reports of the United Nations Development Programme (http://hdr.undp.org/sites/default/files/2016_human_development_report.pdf), which I’ve discussed in previous blogs (#9 for example).

But now comes an update from a distinguished international legal scholar who is the United Nations special rapporteur for extreme poverty and human rights. Philip Alston visited several deep pockets of poverty, from Los Angeles to West Virginia and Detroit to Puerto Rico, at the end of 2017. His report (UN General Assembly Doc. A/HRC/38/33/Add.1, May 4, 2018) is a devastating indictment of the government that underscores the large and growing contradictions between the American Dream and reality. Alston told The Guardian that Trump’s policies amount to “ a systematic attack on America’s welfare program that is undermining the social safety net for those who can’t cope on their own. Once you start removing any sense of government commitment, you quickly move into cruelty.”

The report acknowledges that previous administrations haven’t distinguished themselves by their concern for these inequities, but quotes Alston to the effect that the Trump Administration has “deliberately targeted the most vulnerable in society, kicking away every ladder of social wellbeing in order to serve Trump’s rich supporters and his alt-right agenda”.

In other words, it’s not that this government can’t take care of the poor. It won’t. It has no interest in doing so.

The blogger, Mel Gurtov, provides examples of the measures that Alston identified as particularly onerous to the most vulnerable:

• Debasing civil society: Supporting limits on voting rights with specious arguments about voter fraud and “covert disenfranchisement” such as gerrymandering and various ID requirements.
• Giving huge tax breaks to millionaires and big corporations while about 40 million people live below the poverty line—among them, 23.8 million considered in extreme or absolute poverty. The richest 1 percent of Americans now account for 20 percent of national income, double the percentage in 1980. “The proposed tax reform package stakes out America’s bid to become the most unequal society in the world,” says Alston in a separate statement (www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22533).
• Putting new limits on basic anti-poverty measures such as work requirements for welfare, food stamps, subsidized housing, health insurance, and veterans’ benefits.
• Limiting opportunity: “The United States now has one of the lowest rates of intergenerational social mobility of any of the rich countries. . . . The equality of opportunity, which is so prized in theory, is in practice a myth, especially for minorities and women, but also for many middle-class White workers.”
• Promoting racist stereotypes that seek to stigmatize non-whites as being mainly poor, lazy, and unworthy of uplifting.
• Tolerating the highest rate of infant mortality, the highest rate of youth poverty, and the highest income inequality among all rich countries.*
• Treating Puerto Rico as a colony, and imposing fiscal discipline that fails to take into account people’s need of social protection. (The mayor of San Juan says it all: Trump’s , total neglect has to be called [out]. The United Nations says that when people are denied the right to access to basic human services — like electric power, like water, like food, like appropriate medical care — that it is a violation of human rights.”)

We’ve gone from a war on poverty to a war on the impoverished.

We’ve become a country without compassion, where the shameless and greedy eat bon bons and watch the poor scramble for crumbs. Our cruelty, together with the President’s erratic and embarrassingly ignorant behavior, has squandered America’s claim to any vestige of continued moral authority.

How long can this go on before it becomes irreversible?

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Quick, Dirty and Accurate

Every so often, I read something that expresses an opinion I hold so succinctly and clearly that I get a bit jealous of the wordsmith. (That tends to be my reaction to pretty much anything Leonard Pitts writes, and especially this one).

That was also my reaction to a recent post by Ed Brayton at Dispatches from the Culture Wars.

Brayton was addressing the recurring question of why Trump supporters don’t care about his constant–incessant–lies. He began by referencing two classic analyses by Richard Hofstadter, the book  Anti-Intellectualism in American Life and Hofstadter’s much-quoted essay, The Paranoid Style in American Politics—both of which are well worth reading if you haven’t already done so. Hofstadter wrote in the 1960s, and Brayton’s point was the cyclical nature of American history.

It seems that about every 40-50 years we go through this bout of pseudo-populist, anti-intellectual, anti-immigrant and racist fervor. You can go back to the Know Nothings of the mid-1800s, to the rebirth of the KKK in the early 1900s, to the McCarthy era and the birth of the John Birch Society in the 60s (which was just starting when Hofstadter did his analysis). What we’re seeing with Trump is the latest rebirth of those movements. He’s tapped into a rich vein of ignorance, paranoia and bigotry that is never far below the surface in America.

When I am particularly worried about our prospects for emerging from the current cesspool of corruption and bigotry, I remind myself of these episodes from America’s past. After all, we survived those; surely when the fever breaks, we can repair the damage being done every day by the looters and racists who now control our government.

Can’t we?

Brayton makes another point I’ve frequently made: these eruptions occur in times of economic and cultural stress.

When people feel insecure economically or socially — as in white Christians feeling threatened by becoming a smaller percentage of the population, coupled with vast income inequality and the massive recession of 2008 and 2009 — they tend to retreat into this very simpleminded tribalism. They want to build Fortress America and shut everyone else out. They retreat to racial tribes and lob bombs — sometimes literally — at other tribes. Their fear and insecurity make them easy targets for demagogues like Trump to whip them up into a fervor by telling them that it’s all the fault of (insert scapegoat here — blacks, Latinos, immigrants, Muslims, Jews, gay people, “elites” or “globalists”). Fear is a powerful motivator and is easily exploitable by those seeking authoritarian power.

And once people are fully in the grip of tribalism, the truth simply doesn’t matter to them anymore.

Brayton points to Trump’s repeated–and largely fact-free– attacks on immigrants as an example. Those immigrants (unless, of course, they are pale and come from Norway) are dangerous threats, they are “other.”

Leonard Pitts, in the linked column, brilliantly summed up how we fell into this particular abyss.

There is no mystery here. Trump is president because Obama was, and because there were many people for whom that fact was apocalyptic. It’s no coincidence David Duke loves this man, white people chant his name to taunt black ones and hate crimes spiked during the campaign.

After all, what’s a lie or two–or 3,000–when your white Christian heterosexual tribe is in danger of losing its hegemony?

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What Can Be Done?

Regular readers of this blog will confirm that the most consistent thread running through my posts since the 2016 election is frustration. That’s not because I’m a voice in the wilderness–there are literally millions of Americans who share my revulsion at the appalling, destructive behaviors of Trump and his administration, and who worry with me about the future of the country. But they’re frustrated too.

The frustration is because we feel powerless–we don’t know what we, as individuals, can do that will really make a difference.

Yes, I can vote in November. I can encourage others to vote, and I can register people to vote (although virtually everyone I know already is registered). I can blog. But I am only one person and, unlike our delusional President, I don’t have an exaggerated belief in my ability to change reality.

What else can I –or anyone else–do? We are surrounded by people telling us to “take action”–without, however, specifying any concrete action we might take.

A recent New Yorker article quoted Dahlia Lithwick raising a related question that two of my former students raised with me, via email, following the election. Both are federal employees, and both were wondering whether they should stay or leave.

How is one to maintain sanity, decency, and a measure of moral courage? In a pair of thoughtful essays in Slate, Dahlia Lithwick tackles the problems of dealing with the everyday nature of our current political disaster and of deciding on the best way to try to save the country from Donald Trump: by staying close to him, or by walking away. The latter is a question for members of the Administration and for congressional Republicans. “This is the time,” Lithwick writes, to “think about what combination of exit and voice can make a meaningful difference if a real crisis were to happen. Or rather, when the real crisis happens—if we are not there already.”…

Is the possibility of moderating the damage done by this Administration worth sacrificing one’s moral principles? Should one protect one’s individual integrity by sacrificing the chance to moderate damage done by this Administration? We can’t possibly know.

For most of us, “stay or go” has a different meaning– and most of us aren’t going to leave the country, no matter how often we google “immigrating to Canada.”

The author of the article, Masha Gessen, concludes that each of us must at the very least protect facts from this “reality-destroying” regime.

The great French thinker and activist Simone Weil had a prescription that she wrote down in her journal in 1933: “Never react to an evil in such a way as to augment it.” A few days later, she added, “Refuse to be an accomplice. Don’t lie—don’t keep your eyes shut.”…

In our case, stepping outside the lie means refusing—stubbornly, consistently, incrementally—to lend credence to the opposite of politics, the opposite of diplomacy, and the opposite of sanity. That would require thinking, reading, and speaking critically: not treating an outburst as though it were politics, a tantrum as though it were diplomacy, and a delusion as though it were aspiration. The good news is that this is not an entirely impossible task.

I agree that standing up for sanity and empirical reality is extremely important, but it seems woefully inadequate to the task before us, which is nothing less than the restoration of a constitutional, democratic and ethical government that citizens can trust.

The loss of democratic governance has been a gradual, decades-long process which most Americans have ignored until Trump made it glaringly obvious. His wholesale assault on decency and sanity actually impedes collective action; there are so many issues, so many different egregious offenses, so many distractions,  it fragments the expression of collective anger.

That said, a comment made to this blog a couple of days ago struck me. Gerald proposed a general strike.

Such a strike would be a massive undertaking, and not risk-free. It would need to be organized by a consortium of national organizations, and devoting time and person-power to such an effort before November would bleed resources from the critical work of getting out the vote. But after that– assuming Muller’s investigation is still ongoing, the Congressional GOP is still spineless and Trump still occupies the Oval Office– bringing the nation’s business to a halt for a day would send a message of resistance that even Trump might understand.

I”m probably just smoking whatever it is that Gerald has been inhaling–but anyone have influence with a national organization?

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Point Well Taken…

One of the websites I visit regularly is Talking Points Memo. Its editor, Josh Marshall, was a conventional journalist before establishing the online equivalent of a news site devoted to government and politics, and he employs staff reporters who are equally professional and credible.

In a recent column, Marshall reported on his participation in a CNN segment, and made a point about the accusation that this President routinely violates democratic norms–an issue that has certainly concerned me, and that has been a focus of criticisms leveled by numerous political scientists.

Marshall says we need to stop talking so much about norms.

But we need to stop talking so much about “norms”. And it’s not just CNN. The term has come up a number of times in our editorial conversations at TPM just today. I’ve talked about them. But we need to stop talking so much about norms. Because it doesn’t capture what is happening or the situation we’re in. In every kind of communication, clarity is the most important thing. By talking so much about “norms” and the violation of “norms” we’re confusing the situation and even confusing ourselves.

“Norms” aren’t laws for a reason. They are like bumpers on the roads of our civic and political life which are there to keep people of basically good faith from crossing lines they shouldn’t cross. They can also be warning posts so others can see when someone is either going down a bad path or needs to be brought back into line.

As Marshall says, that isn’t what ought to worry us.

But the problem with almost everything President Trump is doing today is not that he’s violating norms. The problem is that he is abusing his presidential powers to cover up his crimes and his associates’ crimes. Full stop. That’s the problem. The norms are just the orange rubber cones he knocked over when he drove out of his lane and headed for the crowded sidewalk.

He makes a similar point about transactions the press usually labels “conflicts of interest.”

What we’re seeing now are not conflicts of interest. They’re straight-up corruption. It’s like “norms”. Defining “conflicts of interest” is meant to keep relatively honest people on the straight and narrow or create tripwires that allow others to see when people in power are crossing the line. Nothing like that is happening here. We have an increasingly open effort to make vast sums of money with the presidency. It’s happening in front of our eyes, albeit not quite as visibly as the coverup.

Marshall’s point is important. The use of terminology that may have been entirely appropriate when applied to less venal political actors only serves to muddy the waters when we are dealing with unambiguously criminal behavior.

I understand the reluctance; we’ve never had an administration ignore the law this blatantly and proudly. But that’s what we have now, and refusing to accurately label what is obvious to anyone who is looking is akin to aiding and abetting.

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