The Trumpian assault on the rule of law has been unremitting. With the assistance of Mitch McConnell, Trump turned the highest court in the land into his personal lapdog, and now he is aiming to pollute the lower courts that have valiantly opposed his unconstitutional efforts.
The most recent and most blatant effort to replace dispassionate jurists with biased and unqualified sycophants was the nomination of a slimy creature named Emil Bove to a federal judgeship–a lifetime appointment.
Tonight Senate Republicans cast away their Constitutional obligations to rubber stamp [Emil Bove] an outrageously unfit nominee to the Third Circuit. The Senate, the country, the judiciary will suffer for this. And the conservative legal movement will not recover.” — Gregg Nunziata, Exec Dir, Society for the Rule of Law.
Last night, the US Senate blithely ignored the pleas of the legal community, the evidence of multiple whistleblowers, and whatever tattered remnants of self-respect they had, to confirm Emil Bove to a lifetime position on the Court of Appeals. As I wrote a few days back: It’s not easy these days to single out the worst of the worst appointments, but certainly the elevation of the thuggish Bove to the federal appellate bench has to rank right up there. Other churls and chodes will come and go, but federal judges are forever.
The vote was 50-49, indicating that J.D. Vance once again had to break the tie. Two Republicans defected. But not Indiana’s GOP Senators. If there was any lingering doubt about the lack of integrity–and the lapdog status–of these two “law and order” Republicans, this inexcusable vote certainly erases it. Their fuhrur told them to vote for a demonstrable liar who has made it clear he will support whatever his fuhrur wants, irrespective of the Constitution or legal precedent–and they obeyed.
Banks, of course, is a gung-ho member of the SS.Young, it appears, is just a feckless, integrity-free “Good German.” Neither of them deserves public office or respect.
As the Trump administration careens drunkenly from outrage to outrage, laying waste to the American Idea, there is one “through line” to the Dear Leader’s petulant and bizarre Executive Orders and (ungrammatical) pronouncements: virtually all of them violate the laws of the land. (My husband will read of some Trumpian action and ask me, “Can he do that?” and my response is usually, “It’s against the law, if that matters.”)
The Constitutional crisis we are currently experiencing is Trump’s disregard–not just for the laws he is ignoring–but for Court orders requiring him to obey them.
I don’t know how this crisis will turn out. I have hopes that the increasing numbers of protests will encourage at least some Republican Senators and Representatives to re-grow their spines (although here in Indiana, Senator Jim Banks–a dim, smug self-proclaimed Christian Nationalist–is beyond hope). In the meantime, there are emerging signs that the legal community is prepared to defend the rule of law against our Mad King and his merry band of lunatics.
I was particularly pleased to read a Fourth Circuit Court of Appeals decision authored by Judge J. Harvie Wilkinson III, because it confirmed a point I’ve repeatedly made on this site: whatever descriptors you want to apply to Trumpism and MAGA, “conservative” isn’t one of them.
If you had told me in 2005 that 20 years hence federal appeals court Judge J. Harvie Wilkinson III would be writing a paean to our lost liberties and freedoms under a Republican president, I may have politely suggested you seek some help.
The entire order is worth reading. Wilkinson clings to the hope that the judiciary’s “brethren in the Executive Branch” will recognize that the rule of law is “vital to the American ethos.”
Wilkinson’s defense of the rule of law is being joined by individual lawyers. R. William Jonas, Jr., a partner in a law firm in Mishawaka, Indiana, recently shared the following letter he’d written to the Indiana Bar Association.
I write today as a member and Past President of the Indiana State Bar Association, and as an officer of the court who swore on Oct. 9, 1981, to support and defend the Constitution of the United States and the State of Indiana. To fulfill my oath, I write today in the wake of the decision of the U.S. Court of Appeals for the Fourth Circuit attached here.
The U.S. government “snatched” Kilmar Abrego Garcia from his home state of Maryland, and, in utter disregard of his constitutional right to due process and a specific court order, and transported him to an infamous prison in El Salvador where it is now claimed that he is beyond the power of our courts. We know from reading the Fifth Amendment that “no person shall be deprived of life, liberty or property without due process of law.” And “no person” means exactly that – it includes everyone from Jesus Christ and the twelve disciples to Jeffrey Dahmer, Ted Bundy, John Wayne Gacy or Gertrude Baniszewski.
It is the duty of the Indiana State Bar Association, to speak in support of the opinion of the court and the right of due process which is at the very heart of the rule of law. Some might say that we should be silent because we shouldn’t be taking political positions or because it might cause people to terminate their memberships. To these folks, I say that we all have sworn to uphold the constitution and the rule of law. This association is rightly proud of its efforts to promote leadership through the Leadership Development Academy and civic education through the Indiana Bar Foundation’s civic education program “We the People: The Citizen and the Constitution.” If we remain silent, what message do we send about leadership? About civic duty? If not us, who? If not now, when?
Judge Wilkinson wrote
It is, as we have noted, all too possible to see in this case an incipient crisis, but itmay present an opportunity as well. We yet cling to the hope that it is not naïve to believeour good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
Now is the opportunity for the ISBA to speak up in support of the right to due process and the rule of law, and to urge the local bars of Indianapolis, Evansville, Allen County, Lake County and St. Joseph County to take similar action. It is an opportunity to urge the faculties of Indiana’s law schools to join the chorus – as Judge Wilkinson says “while there is still time.”
Now is the time for all of us to speak up–and resist.
Most of us are obsessively focused on the national election, but the stakes of our state-level choices are equally dire–at least, in Indiana.
The Indiana GOP is running a staewide ticket composed of lunatic White Christian Nationalist Micah Beckwith, two Beckwith clones, and MAGA Mike Braun. I’ve posted numerous times about Todd Rokita, our embarrassing, unethical Attorney General. Today, I want to remind readers that the only difference between Beckwith and Jim Banks, who is running for the U.S. Senate, is that Banks is too politically-savvy to publicly claim the White Christian Nationalist title to which he is amply entitled.
Let me just reiterate why Banks is–as I’ve previously noted–wrong about everything. In Congress, he joined clowns like Jim Jordan and Marjorie Taylor Greene, pursuing a pro-Trump, anti-woman, anti-gay, anti-liberty performative politics.
He makes no bones about his desire for a national ban on abortion with no exceptions, not even for rape, incest or life of the mother. He has an A+ rating from Pro-Life America, and a 100% lifetime rating from the National Right to Life Committee. His voting record on abortion/reproductive health can be accessed here.
He opposes even the most modest efforts to control the proliferation of firearms. He opposes both a renewal of the ban on assault weapons and a federal “Red Flag” law. He supports concealed carry and has voted against background checks for private sales. His voting record on gun issues can be accessed here.
Banks calls climate change a “liberal hoax,” and the Biden Administration’s environmental efforts “a war on energy.” The League of Conservation Voters gives him a 1% lifetime rating. His votes on the environment can be accessed here.
When it comes to labor issues, Banks gets a zero rating from the AFL-CIO. In the Indiana legislature, he supported “Right to work” legislation (dubbed by labor as “Right to work for less.”) On vote after vote in Congress, he has voted against labor; a list of those votes can be seen here.
He continues to oppose any expansion of healthcare coverage, and rejects medical science. He voted against the most recent expansion of Medicaid and supports legislation that would ban vaccine mandates. He has voted to repeal the ACA, and against legislation that would prevent insurers from discriminating on the basis of pre-existing conditions. A review of all of his healthcare votes is here.
Banks has voted repeatedly against efforts to fund research into the effects of marijuana. (Those anti-research votes track well with his “know nothing” approach to all issues.) Banks’ votes on issues related to pot are here.
He is an extremist on immigration. He supports finishing Trump’s wall, eliminating federal funding for sanctuary cities, and deporting “criminal illegal aliens.” He opposes legislation granting amnesty for any undocumented persons (presumably including children currently protected by DACA) and opposes any expansion of guest-worker programs.
Banks created the “anti-Woke” caucus in the House of Representatives and introduced legislation to outlaw any remaining affirmative action in college admissions. He has been dubbed “Focus on the Family’s Man in Washington.” He opposes all DEI (Diversity, Equity and Inclusion) programs. He has been especially vocal in his opposition to gay rights generally, and to trans children especially– in addition to his “Anti-Woke Caucus,” he has supported efforts to ban trans people from the military, prevent trans women from participating in women’s sports, and prevent medical personnel from treating children for gender dysphoria. He recently sponsored a particularly odious bill that would prevent agencies charged with placing children in foster homes from taking measures to see that gay and trans children not be placed with foster parents who have religious objections to homosexuality, saying that refusal to place those children in such homes was discrimination against religion.
Banks consistently attacks educational institutions of all kinds. He has vowed to investigate the National Association of Independent Schools, focusing on the group’s role in political advocacy and its tax-exempt status. He has threatened to “expose” what he calls “widespread political indoctrination” in America’s public schools, and has claimed that lawmakers have a “moral duty” to investigate the use of academic accreditation associations as “political tools by leftist ideologues.”
When Banks was in the Indiana legislature, he voted to allow instruction in creationism and enthusiastically supported the educational vouchers that send tax dollars to private, overwhelmingly religious schools.
And of course, he’s described Trump’s felony convictions as “rigged,” posting on social media that “New York is a liberal sh*t hole.”
As I’ve previously written, having a Neanderthal like Banks in Congress is bad enough. Electing him Senator would be worse.
Republicans should be embarrassed by the whole statewide ticket. As this Republican says, Hoosiers should vote BLUE this year.
How, I wonder, do climate-denying Americans manage to ignore the mounting evidence of climate change? I suppose I can understand that people might once have dismissed the overwhelming majority of scientists who’ve been warning us for many years. After all, the changes we actually have experienced until recently–things like spring coming earlier each year–have been subtle. But you’d think our recent episodes of weather disasters, the fires following unusual droughts, and the hurricanes made more powerful and destructive thanks to their paths over warming oceans, would have convinced them.
Evidently not. At least not Hoosier Republicans.
Not only did Mike Braun and Jim Banks vote against added funding for FEMA, Braun and Rokita have opposed Indiana utilities plans to phase out their dependence on coal. According to the Capital Chronicle, Braun just sent a letter to the Indiana Utility Regulatory Commission (IURC) opposing a coal plant’s proposed conversion to natural gas.
He urged commissioners to deny the conversion, and encouraged collaboration with policymakers to preserve coal’s role — “the most reliable baseload fuel” — while “looking to the future.”
Todd Rokita, Indiana’s embarrassing Attorney General, has been an even more avid protector of the fossil fuel. As another article from the Chronicle has reported, the Attorney general has urged utility regulators to deny early coal plant retirements.
Coal plants have historically had 50-year lifespans, according to a 2019 article published in Nature Communications. But they can last longer with fixes and upgrades.
U.S. coal plants are about 44 years old, in a capacity-weighted average, according to an analysis by the U.S. Energy Information Administration. Plants scheduled for retirement this year averaged 54 years of age: almost a decade older.
But coal plants decommissioned amid their expected decades-long lives have become a political flashpoint.
The IURC says it lacks the authority to prevent a utility from converting from coal–that the agency’s jurisdiction is limited to assessing the reasonableness of rates and other tasks spelled out in the legislation that established it. Rokita, however, argues that the IURC doesn’t need explicit authority. Meanwhile, Indiana’s Republican lawmakers have introduced a bill that would grant the IURC that specific authority. The article noted that the legislature might also require that such action be made mandatory and not discretionary.
House Bill 1382, introduced last session, would’ve spelled that out. It also laid out conditions utilities would’ve had to meet in order to apply for permission to close any “fossil fuel fired” plant. The proposal never got a hearing and died.
The Hoosier Environmental Council said that bill would slow Indiana’s transition away from coal, a dirty fossil fuel, to greener energy sources.
“Besides adding an unnecessary burden to the Indiana Utility Regulatory Commission, this bill encourages our public utilities to keep their current energy generation sources running as long as possible, which are majority fossil fuels,” the council said on its website.
Indiana’s GOP characterizes concern for the environment as an attribute of “far Left liberalism.”
The digitally-altered Braun attack ad against Jennifer McCormick is telling. (It was also illegal…) That altered ad was intended to demonstrate to Hoosier voters that McCormick is “unacceptably liberal.” The evidence for that assertion included her prior support for Hillary Clinton and her current support for Joe Biden, a purported attack on gas stoves, and her intention to create a state office that would focus on environmental issues.
The altered ad was visually and textually dishonest. McCormick had never even mentioned gas stoves, and has made it clear that she’s concerned with weightier matters–like women’s reproductive rights. But that accusation was clearly intended to buttress the case for her “unacceptable liberalism.”
What is truly notable about that bit of egregious dishonesty is the obvious assumption that voters will agree with its premise: the only Americans who take climate change seriously are “far Left”– that people who care about the environment are by definition “too liberal” for public office.
According to Indiana’s GOP, basic scientific literacy–not to mention common sense–is disqualifying.
I don’t understand when climate change became a culture war issue. I don’t understand people who dismiss knowledge and expertise as some sort of phony elitism. And I really don’t understand how anyone even remotely aware of Hurricanes Helene and Norman can continue to ignore the evidence of their senses.
The Republicans’ rejection of fact, science and evidence does explain the party’s animosity toward education, and GOP support for the vouchers that encourage parents to send their children to schools that will “protect” them from “theories” like evolution and climate change.
It’s just another example of Republicans’ rejection of reality. Hoosiers need to vote Blue.
If you were hiring someone to manage a manufacturing business, would you hire someone who didn’t know anything about the product your factory produced? What about a nonprofit executive who disagreed with the organization’s mission?
The answers to those questions is pretty obvious, but for some reason, when it comes to government, we don’t require evidence that candidates for office understand what government is and– just as important– is not supposed to do.
As early voting gets underway in Indiana, Hoosier voters are going to the polls to choose between two statewide tickets. One of those is composed entirely of candidates who neither support nor understand America’s constitutional system. Beckwith, Banks and Rokita are out-and-proud Christian Nationalists waging war against the First Amendment’s Separation of Church and State. They simply reject the system put in place by the Founders. Braun–who seems motivated only by a desire to be important–rather clearly doesn’t understand the role of government or the structure of American federalism.
One of the TV ads being run by Jennifer McCormick–who does understand those things–shows an earlier interview with Braun in which he enthusiastically endorsed the Dobbs decision that allowed state-level governments to ban abortion. When asked if he would also support criminalizing the procedure, he said he would. Less well-known was his opinion, shared in another interview, that decisions about same-sex and inter-racial marriages should also be returned to the states.
Evidently, Braun has never encountered the Fourteenth Amendment, which–among other things– requires state and local governments to govern in a manner consistent with the Bill of Rights, and forbids them from denying to their citizens “the privileges and immunities” of American citizenship. For over fifty years, those privileges and immunities have been protected by a doctrine called substantive due process, often called the “right to privacy.” That doctrine confirmed the principle that “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception (or more recently, the choice of one’s marriage partner) are none of government’s business.
Permit me to slip into “teacher mode.”
Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.
The Court held that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.
The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.
Not the federal government. Not state governments. Individual citizens.
I will refrain from pointing out the impracticality of “states rights” on these intimate issues. (If you are in an inter-racial marriage and move to a state that forbids such unions, are you suddenly unmarried?) The more fundamental point is that allowing any unit of government to decide such matters violates the Bill of Rights and the libertarian philosophy that underlies our constitutional system.
Indiana’s MAGA GOP is offering voters an entire statewide slate of men who neither understand nor respect the Constitution–men who are applying for jobs without demonstrating any familiarity with the job descriptions.
Voters who feel comfortable allowing Indiana’s deplorable legislature to decide who they should be allowed to marry or whether they should be required to reproduce should vote for Braun and his merry band of theocrats. The rest of us will cast our votes for the Democrats.
Note: I voted early afternoon yesterday, on the first day of early voting. I stood in a fast-moving line for nearly an hour. If this year’s election will be decided–as I believe it will be–on turnout, it was a fantastic sign.
