Polluting The Judiciary

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.” In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.

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Too Many Assaults, Too Little Time

It isn’t possible to keep up with this administration’s assaults on American government (not to mention decency, healthcare, the poor…).

A regular reader sent me a link to an article that highlighted an overlooked passage from Trump’s State of the Union speech.

Standing in front of a divided Congress, with possible obstruction charges looming over him and facing governance struggles produced by his ineffective leadership, the president sought to undermine a 135-year-old law protecting federal civil servants from the whims of tyrants and hacks. “I call on the Congress to empower every Cabinet secretary with the authority to reward good workers — and to remove federal employees who undermine the public trust or fail the American people,” he said.

Now, as the author of the article readily concedes, this sounds perfectly reasonable. We’ve  been regaled for years with stories–some true, most not–about all the red tape that prevents public officials from firing incompetent or insubordinate workers. Of course, as the old saying goes, one person’s red tape is the next person’s accountability…and that, of course, is the issue.

In this case, it’s important to understand just how and why the law Trump wants to repeal was passed in the first place.

“To the winner goes the spoils” applies to politics as much as war. Political patronage persisted far longer at the local level, so most of us don’t realize that until the late 1800s, when a new President took office, he  (it was always he) could fire everyone who worked for the federal government and install his own people. If his victory ushered in a change of parties, that was pretty much what happened. (Federal service wasn’t what you’d call a stable job.)

But in the 1870s, consistency and competence in the federal bureaucracy became more important as the nation’s political and commercial life grew more complex. Americans became increasingly aware of political corruption (see: the Grant administration) and its drag on government and commercial efficiency. When, in July 1881, President James A. Garfield was assassinated by disgruntled office seeker Charles Guiteau, the push for reform gained enough momentum to force Congress to rein in the patronage system.

The Pendleton Civil Service Reform Act of 1883 cost its namesake, Sen. George H. Pendleton (Ohio), his job in a political backlash against the new anti-spoils system. Nevertheless, the Pendleton Act was a major step forward for good government, and over the next quarter-century the majority of ordinary and largely essential civil service positions became disconnected from political machinations, filled instead through a standard set of hiring practices and exams, and protected from arbitrary firing.

Today, most state and local governments have implemented similar reforms. A new chief executive–Governor, Mayor– is entitled to policymaking folks who agree with his or her agenda, but not entitled to replace the guy who gives drivers’ tests at the BMV, or the clerk in planning and zoning.

The result is a more stable and experienced government workforce, a Congress that gets accurate reports from its research bureaus and federal departments that provide a certain level of regulatory consistency for citizens and businesses at home and around the world.

Because civil service incorporated mechanisms that prioritized merit-based hiring and firing, rather than finding a spot for your donor’s brother-in-law, the bureaucracy became attractive to minorities; today, African Americans are 30 percent more likely to work in civil service than white Americans. Which brings us back to the danger Trump poses.

Over the past 30 years, conservative valorization of “market solutions” has been accompanied by deeply racialized notions of government inefficiency that aim to undermine these civil rights achievements by invoking the image of a wasteful, corrupt public workforce — one viewed by many Americans as dominated by African Americans.

Trump’s assault on the Pendleton Act isn’t simply part of his desire to dole out jobs to his favored sycophants and toadies. It is another effort to pander to his base, much of which shares this profoundly racist worldview.

Despite the widespread belief that civil service employees can’t be fired, they can be. They simply have to be accorded reasonable due process.

Most of us want government managers to be able to dismiss incompetent people, or people who aren’t doing their jobs. What we don’t want–and what current law prohibits–is permission to hire and fire based upon race, gender, sexual orientation or other identities that offend bigots’ sensibilities but have absolutely nothing to do with competence.

For that matter, I wouldn’t trust Trump or his “best people” to recognize competence if they fell over it.

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About That “Reign of Error”….

I never thought I’d be grateful for incompetence, but that was before Trump.

Paul Krugman recently addressed the “qualifications” of several of Trump’s appointees, under the headline “The Gang That Couldn’t Think Straight.”

A few days after President Trump was inaugurated, Benjamin Wittes, editor of the influential Lawfare blog, came up with a pithy summary of the new administration: “malevolence tempered by incompetence.” A year later, that rings truer than ever.

In fact, this has been a big week for malevolence. But today’s column will focus on the incompetence, whose full depths — and consequences — we’re just starting to see.

Krugman then takes readers on a stroll through some of those “best people” Trump promised us. There’s FEMA, of course–over half of Puerto Ricans still lack electricity, and the delivery of food and water is, shall we say, less than optimal.

And what about that opiod epidemic? As Krugman notes, we’ve heard rhetoric, but seen zero action. Recently, however, Trump has chosen a nominee to handle that effort:  a 24-year-old former campaign worker, with no relevant experience and who, it appears, has lied on his résumé . Trump has been in office a year, and is just getting around to appointing someone to an important senior position in the Office of National Drug Control Policy. You might think, given that length of time, that his administration would have at least vetted their potential nominee.

Meanwhile, the Trump-appointed director of the Centers for Disease Control and Prevention resigned after Politico reported that she had purchased tobacco-industry stocks after taking office. This was unethical; it was also deeply stupid. And the C.D.C. isn’t some marginal agency: It’s as crucial to safeguarding American lives as, say, the Department of Homeland Security.

As Krugman notes, these aren’t isolated examples. A lot has been made of the fact that so many positions in the administration remain unfilled a year into the President’s term; there has been less public discussion about the unprecedented number of appointees who have been forced out over falsified credentials, unethical practices or racist remarks.

The obvious question is “why”? Why are so many positions unfilled? And why are so many of the people who have been appointed so…undistinguished (to put it mildly)? (Okay–ragingly incompetent.) Krugman says it reflects both supply and demand: “Competent people don’t want to work for Trump, and he and his inner circle don’t want them anyway.”

I have a number of former students who work for government agencies; they aren’t at the “appointee” level–they are the “faceless bureaucrats” who actually keep government functioning. When Trump was elected, I got anguished emails from several of them, asking whether they should stay or go. Most elected to remain, explicitly to protect the missions of the agencies they serve.

At the level of appointees, however, it is hard to disagree with Krugman’s statement that competent people don’t want to work for Trump. The likelihood of emerging from his cesspool unscathed diminishes every day. (Would you hire Sean Spicer? Kellyanne Conway? Any of the current White House doofuses? )

By now it’s obvious to everyone that the Trump administration is a graveyard for reputations: Everyone who goes in comes out soiled and diminished. Only fools, or those with no reputation to lose, even want the positions on offer. And in any case, Trump, who values personal loyalty above professionalism, probably distrusts anyone whose credentials might give some sense of independence.

Krugman goes on to point out the dangers inherent in incompetence, and I  know he’s right. But I’m just grateful; think how much more damage these yahoos could cause if they actually knew what they were doing!

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Despair, Rage, Anxiety

I think I’m getting emotional whiplash.

When I read an inspiring “call to arms” from someone like Rev. William Barber (yesterday’s post), I feel hopeful. Then I stumble across an article like this one from a publication called Eudaimonia & Co., titled “Why We’re Underestimating America’s Collapse.”

When we take a hard look at US collapse, we see a number of social pathologies on the rise. Not just any kind. Not even troubling, worrying, and dangerous ones. But strange and bizarre ones. Unique ones. Singular and gruesomely weird ones I’ve never really seen before, and outside of a dystopia written by Dickens and Orwell, nor have you, and neither has history. They suggest that whatever “numbers” we use to represent decline — shrinking real incomes, inequality, and so on —we are in fact grossly underestimating what pundits call the “human toll”, but which sensible human beings like you and I should simply think of as the overwhelming despair, rage, and anxiety of living in a collapsing society.

The author’s first example is our epidemic of school shootings–when he wrote it, we’d had 11 school shootings in the prior 23 days.

America has had 11 school shootings in the last 23 days, which is more than anywhere else in the world, even Afghanistan or Iraq. In fact, the phenomenon of regular school shootings appears to be a unique feature of American collapse — it just doesn’t happen in any other country — and that is what I mean by “social pathologies of collapse”: a new, bizarre, terrible disease striking society.

Then there’s the opiod epidemic, which he asserts is also unique to the U.S.  He says such epidemics don’t occur elsewhere, “ especially not ones so vicious and widespread they shrink life expectancy.”

His third example is the phenomenon of “nomadic retirees”. These are older Americans who live in their cars, going place to place, season after season, chasing low-wage work.

Now, you might say — “well, poor people have always chased seasonal work!” But that is not really the point: absolute powerlessness and complete indignity is. In no other country I can see do retirees who should have been able to save up enough to live on now living in their cars in order to find work just to go on eating.

Our lack of health care gets a predictable call-out; life expectancy in Costa Rica is higher than in the United States, because Costa Rica has universal healthcare.  But he ends with an even more depressing observation.

How did America’s elderly end up cheated of dignity? After all, even desperately poor countries have “informal social support systems” — otherwise known as families and communities. But in America, there is the catastrophic collapse of social bonds. Extreme capitalism has blown apart American society so totally that people cannot even care for one another as much as they do in places like Pakistan and Nigeria. Social bonds, relationships themselves, have become unaffordable luxuries, more so than even in poor countries: this is yet another social pathology unique to American collapse…

Americans appear to be quite happy simply watching one another die, in all the ways above. They just don’t appear to be too disturbed, moved, or even affected by the four pathologies above: their kids killing each other, their social bonds collapsing, being powerless to live with dignity,or having to numb the pain of it all away.

This is a dramatically dystopian view of our country. The author, one Umair, concludes that ours is “a predatory society,” and he has chosen examples–he has cherry-picked examples–that support his thesis.

I’m not prepared to accept his diagnosis.But it is hard to argue that his examples aren’t significant, compelling–and horrific. Or–unrepresentative though they may be– that they don’t have a ring of truth.

Should the world follow the American model — extreme capitalism, no public investment, cruelty as a way of life, the perversion of everyday virtue — then these new social pathologies will follow, too. They are new diseases of the body social that have emerged from the diet of junk food — junk media, junk science, junk culture, junk punditry, junk economics, people treating one another and their society like junk — that America has fed upon for too long.

Somewhere between the hellscape that Umair apparently lives in and the resistance that William Barber proposes to lead is a more balanced picture. For every sociopath Umair describes, I know a loving, caring, engaged citizen. For every pathology he identifies, I can point to a countervailing virtue.

But he sure made me think. And drink.

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Poor People’s Campaign

Dr. William Barber is the impressive and impassioned clergyman who began the “Moral Monday” movement in North Carolina–a movement that has since spread to other states. I regretted missing his speech when he came to Indiana recently, and was interested to see this article about the lessons of Martin Luther King day in The Nation.

After quoting King’s admonition that we either go up together or go down together, Barber summed up America’s current situation:

King did not live to see another 24 hours of that pivotal year in American history, but 50 years later we face a similar collective crisis as we begin 2018. Extremists who’ve hijacked the Republican Party worked in concert with a charlatan to deconstruct the federal government, but a resistance made itself public in 2017, making clear that we are still the majority in this nation. Congress and many of our state legislatures refuse to represent the will of the majority. In the face of this basic subversion of democracy, we do well to remember that “either we go up together, or we go down together.” King’s assessment is more crucial than ever: Nothing would be more tragic than to turn back now.

Fifty years after Dr. King and many others launched a Poor People’s Campaign to demand a Marshall Plan for America’s poor, inequality in our nation has reached extremes we have not seen since the Gilded Age. As the Dow climbs and the wealthiest Americans get a massive tax break, 15 million more Americans are poor today than in 1968. In the same time period, the rate of extreme poverty has nearly doubled. Because of the systemic racism of voter suppression, which has been implemented in 23 of the nation’s poorest states since 2010, our political system is held captive by extremists who deny workers health care and a living wage, undermine the equal-protection clause of the constitution, attack public education, and encourage poor white people to blame people of color and immigrants for their problems. All the while, more and more of our collective resources are dedicated to a war without end.

Barber writes that a Presidency as flawed and unpopular as Trump’s will not last long, but he acknowledges the immense amount of harm being done in the meantime–especially in the nation’s courts, where lifetime appointments are being made at a pace far exceeding that of preceding administrations.

Barber details the numerous voter suppression tactics of a GOP that “cheats when it can’t win in a fair fight.” And he has nothing but scorn for the white Evangelicals who have traded integrity for power:

So-called “white evangelicals” and their Christian nationalism have become the apologists and enablers of political extremism. Their voices are so loud when joining the course of those who hate gay people, women, and brown and black-skinned immigrants, but so quiet on issues of poverty, systemic racism, ecological devastation, and the war economy. This is a form of modern heresy and theological malpractice, taught all over the country.

He also has a lot to say about the recent tax “reform” bill, the efforts to further erode America’s already inadequate social welfare network, and about the importance of building multi-racial, multi-ethnic coalitions. But his most important message is one that should resonate with all of us: this is no time to quit. It’s no time to stop resisting.

I have dedicated myself to a new Poor People’s Campaign: A National Call for Moral Revival that is going deep into Southern communities and reclaiming the moral narrative that was bought by the religious right in the 20th century.

In 2018, we are determined to see the South rise again—not in the redemption that white supremacists have long awaited with Confederate flags, but in the future that George White, the last African-American representative to Congress during Reconstruction, foresaw when he said, “This may be the Negro’s farewell to Congress, but Phoenix-like he will rise up some day and come again.”…

And when we change the South, we will shift the power balance in this nation.

In Alabama, African-American turnout defeated Roy Moore. If anyone can move the South, it’s William Barber, with his eloquence, his passion, his organizing genius –and his repeated insistence that we should never give up.

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