Tag Archives: politics

Politics And The Courts

I hate sports analogies, but sometimes, they just fit.

For those of you who are sports fans (I am not one of you), here’s a question: how much would you enjoy watching a game if you knew that the umpire or referee had been bribed, or even just recruited from a group of rabid fans of one of the teams on the field?

The decisions America’s founders incorporated in our constitution haven’t all stood the test of time–exhibit one, the Electoral College–but one that has was their determination that  the judiciary should be protected from political pressure to the extent possible.

There are sound reasons that federal judges are not elected–not “answerable” to the public in the same way that members of the legislative and executive branches are.

When we discussed judicial independence in my classes, I didn’t use the sports analogy; instead, I would pose a different hypothetical: let’s say you live in a small town where you are a party to a lawsuit. Trial is in the local court, where the judge has been elected. What if the lawyer representing the other guy was one of the biggest donors to that judge’s campaign, and is a regular at the judge’s Wednesday night poker get-together? If the judge ruled against you, how likely would you be to believe you’d been judged fairly and impartially?

Or let’s assume a judge is presiding over a high-profile case in which a majority of local folks are emotionally invested. Assume too that controlling law is on the side of the publicly disfavored position–and further assume that the judge is facing re-election. She’s a widow with a mortgage and a couple of kids in college, and she knows that following the law means losing the election.

You get the picture. Even if every judge in these hypotheticals is a paragon of virtue who ignores personal considerations and “calls them like s/he sees them,” public trust in the process would be hard to maintain.

Separation of powers was the division of our government into three branches. Two of those branches were intended to be answerable to public opinion, even public passion. The third was tasked with being an impartial arbiter, insulated from electoral pressure. When judges are wrong–and there are plenty of times they will be–we want them to be wrong because they misread the law, not because they were in thrall to donors or interest groups.

That’s why the constitution requires an appointed judiciary in the federal courts, a decision that has slowed–but certainly not stopped–efforts to politicize America’s court system.

It is admittedly impossible to keep politics completely out of the judicial selection process–especially selections for the Supreme Court. But the problem is far worse in the large number of states that continue to elect their judges. A recent report from Governing Magazine shows just how far state-level politicians (mostly, but not exclusively, Republicans) will go to game the court system.

Last Monday, Republicans in the Louisiana House tried to pass a proposed constitutional amendment to redraw election districts for the state Supreme Court, while adding two seats to it. The effort came up short, but it was just the latest move by a state legislature to try to change how high court justices are elected. Just three days earlier, Illinois Gov. J.B. Pritzker, a Democrat, signed a bill that redraws election districts for his state’s Supreme Court, a move observers believe is aimed at maintaining his party’s 4-3 majority in next year’s elections. And Republicans in Montana and Pennsylvania passed bills in the past year to create districts for their high courts, both of which currently have progressive majorities and whose members are now elected statewide.

The article focused on what it termed “judicial gerrymandering,” and like all gerrymandering, the goal is unearned power. In states across the country, politicians are redrawing their state’s high court election districts in ways that favor their party’s candidates.

Admittedly, there is no way to entirely insulate courts from political pressures. Here in Indiana, where a judicial nominating committee considers candidates for the State Supreme Court and sends three names to the Governor, it’s a given that the ultimate choice will be someone from the Governor’s political party. For that matter, the committee members will be impressed (or repelled) by the identities and politics of the people “lobbying” for particular candidates.

Nevertheless, Indiana’s process significantly attenuates the role played by partisanship. It recognizes that when the umpire is effectively a member of one of the teams on the field, the teams and their fans are all losers.

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Fundamentalism

A couple of years ago, I came across a fascinating article in a legal journal comparing constitutional and biblical cherry-picking. I no longer recall the journal, the title or the authors, so no link, but I do recall the thesis: certain personality types have a need for bright lines and a profound discomfort with ambiguity, leading to the use of selected passages from religious and legal texts to confirm their pre-existing biases.

When evangelical Christian denominations embraced Trump–some pastors insisting he’d been chosen by God– it was tempting to describe religion in general as a big con. Like most generalizations, that characterization is both under and over-inclusive. The problem is not religion per se, but fundamentalisms of all sorts. As the referenced article made clear, religious dogma isn’t the primary problem (although some certainly is very problematic), it is fundamentalists’ insistence on its inerrancy.

In other words, there’s a great deal of similarity between Second Amendment absolutists and fundamentalists of all religious persuasion–and I do mean all religions. American Jews provide just one example. Pew recently published a study of American Jewish attitudes and beliefs. Unsurprisingly,  the study found that a majority of Jewish Americans lean politically liberal and currently favor the Democratic Party. However, Orthodox Jews (our fundamentalists), were “a notable exception.”

The survey, which was conducted in the run-up to the 2020 presidential election, finds that 71% of Jewish adults (including 80% of Reform Jews) are Democrats or independents who lean toward the Democratic Party. But among Orthodox Jews, three-quarters say they are Republican or lean that way. And that percentage has been trending up: In 2013, 57% of Orthodox Jews were Republicans or Republican leaners.

There is further evidence that the content of belief is less troublesome than the intensity of that belief.

The Christian Science Monitor recently published an essay asking whether politics has become the new religion. The article featured examples of Americans for whom politics has become an identity and a quasi-religion–suggesting that the waning of traditional  faith commitments isn’t leading to a reduction of conflict, as many of us had fondly supposed; rather, those for whom lines must be bright and beliefs should brook no dissent have simply transferred their fundamentalist passions elsewhere.

The United States has long been known for what some sociologists call “civil religion” – a shared, nonsectarian faith centered on the flag, the nation’s founding documents, and God. But the God factor is waning, as so-called nones – atheists, agnostics, and those who self-identify as “nothing in particular” – have risen to one-third of the U.S. population, according to a major 2020 survey out of Harvard University. 

From MAGA devotees on the right to social justice warriors on the “woke left,” political activism that can feel “absolute” in a quasi-religious way is rampant. At the same time, American membership in houses of worship has plummeted to below 50% for the first time in eight decades of Gallup polling – from 70% in 1999 to 47% in 2020.

The article points out that Americans have been moving away from organized religion for several years–and notes that–rather than easing intergroup tensions– the shift has dovetailed with the rise of an intense form of partisan politics. For personalities that need certainty about “righteousness,” political ideology provides a sense of “devotion, belonging, and moral certitude” they might once have found in a religious congregation.

The problem isn’t Christianity, Islam, Judaism or any other theology. It’s the certitude motivating adherents’ intransigence and unwillingness to live and let live.

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Misinformation And A Shared Reality

Kathleen Hall Jamison is a towering figure in academic journalism–she has authored numerous books and articles on the relationship between media and politics, and she founded and still oversees Factcheck.org.

Politico recently ran an interview with Jamison in which she made some important distinctions–between truth and fact, and between consequential and inconsequential misinformation.

Journalism is the reporting of fact. Truth is a more fraught concept. In common with most people, Jamison says she hears the word “truth” with a capital T. The word thus capitalized tends to confirm finality: I have discovered the Truth and need not investigate further.

We live in a world in which our understanding is progressing. Knowledge is evolving. There are “truths” in the universe—truths about physics, for example. There are “truths” inside a religious universe—presuppositional things that people treat as truth.

Rather than speaking of Truth-with-a-capital-T, Jamison is more comfortable saying that “there is knowledge that is more or less certain”–what I’d call “facts on the ground.”

She also provides a clear-headed summary of the situation in which Americans currently find ourselves.

So, that said, we live in an environment in which institutional trust is down. The challenge to established knowledge is now greater than it once was. The institutions that certify what we can know are not as trusted as they once were—in part because they have done things that demonstrate that they aren’t able to be trusted (at least some of them in some circumstances). You’ve got more factors challenging institutional forms of knowledge production, and sometimes that’s healthy—trying to hold them accountable is a goal of journalism. Some of them are more trustworthy than others; those that are more trustworthy are trustworthy more times than some would think. There are methods underlying trustworthiness of knowledge. Transparency is a norm. When it’s not honored, less trust. Reproducibility is a norm. When it’s not honored, less trust. A culture of self-critique and of critique is a norm. When it’s not honored, less trust. Those are norms of science. Those are also norms of good journalism.

We live in a world in which some good tendencies—the tendency to critique, the tendency to be skeptical—have gotten out of hand. And as a result, and we live in a polarized environment in which, for ideologically convenient ends, people who see ideologically inconvenient “knowledge” have more ways to discredit it with fewer places to anchor the knowledge.

When it comes to the distinction between information that is and is not consequential, Jamison gives a shout-out to the judiciary, noting that the courts have established rules for determining what constitutes relevant evidence and determining its credibility. Those mechanisms allowed the courts to arrive at a common conclusion when faced with the false assertions of the Trump campaign. We aren’t without tools for determining what is knowable and what is not.

That said, Jamison’s concern is with consequential facts.

With a lot of things, whether or not they’re factual doesn’t really affect anybody. I mean, they’re useful to know at a cocktail party, but they’re not consequential.

So how do we understand what is consequential? She provides an excellent analogy:

If you’re going to teach kids civics, I don’t care whether they know when Paul Revere rode. I don’t even care if they know that Paul Revere rode. In fact, I don’t care whether Paul Revere rode.

I do care that they understand there are three branches of government. I care that they understand that there are checks and balances built into our system. I care that they understand we have a veto—and what that means, when you exercise it, and how you override it. I care that they understand that there’s an independent Supreme Court; that we’ve set up the Supreme Court to be different and that it’s not a political branch of government. Those are consequential. They are consequential because if you understand them, you act and think differently about our system of government. The willingness to protect our system is, in part, a function of understanding our system, and understanding that our system has presuppositional facts—consequential facts—under it. If I don’t understand those things, then if the Supreme Court issues a series of unpopular decisions that I don’t like, I’m more likely to say that maybe we should get rid of the Supreme Court.

It all comes back to operating in a shared reality. That’s especially important to our ability to communicate, and to be contributing citizens in  a functional political system.

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A Matter Of Morals

This is a very difficult time for those of us who are old enough to remember a much different politics.

When I was in City Hall, most elected Republicans and Democrats (granted, not all) could disagree over certain policies while agreeing about others. State Senators and Representatives could argue on the floor of a Statehouse chamber and go to lunch together afterward. Both Republican and Democratic Congressmen (yes, they were all men) would carry the City’s water in Washington.

And politicians of both parties honored election results and participated in the peaceful transition of power.

Why has that changed? Why do members of Trump’s hard-core MAGA base seethe with resentment and hatred of “the libs”? Why do so many of us respond to their hostility with incomprehension– as if they were representatives of a different species?

Well-meaning observers–pundits, political operatives, writers–counsel Americans to listen to one another, urge us to try to understand and respect each other, to make genuine efforts to bridge our differences.

Why do those pleas fall on deaf ears?

I think most thoughtful Americans struggle to understand the abyss that exists between the  MAGA true believers (and the integrity-free officials who pander to them), and the rest of us–the “rest of us” encompassing everyone from genuinely conservative “Never Trump” Republicans to the Bernie and AOC wing of the Democratic Party.

Like many of you, I have struggled to understand why Americans’ political differences have magnified and hardened. Clearly, our information environment has contributed greatly to the construction of incommensurate realities. That said, however, I think there is a deeper reason, and we find it at the intersection of politics and morality.

Political contests are about power, of course–about who gets to make decisions about our communal lives and behaviors. And power is obviously a great aphrodisiac. But purely political battles center on policy disputes–everything from where the county commissioners are going to put that new road to whether the country will enter into a particular trade agreement.

When politics works, the battles are overwhelmingly “how” arguments: how will we provide service X? What sort of law will solve problem Y? Who should benefit from program Z? Those battles certainly implicate morality, but not in the way or to the extent that our current disputes do. Increasing numbers of Americans believe they are engaged in a battle between good and evil–and to the extent the issues dividing us really are fundamentally moral ones, there is little or no common ground to be found.

I was struck by this observation in an article titled “The MAGA Hat Isn’t Campaign Swag. It’s a Symbol of Hate.”

Unless you’ve been marooned on the International Space Station, you know that Trumpism is racism, blatant or latent (here’s a summary of the voluminous evidence). That makes the cap no different than a Confederate flag. It’s racial animosity woven in cloth, unwearable without draping yourself in its political meaning. It would be like donning a swastika and expecting to be taken for a Quaker.

We Americans are still fighting the Civil War. As an article in the Guardian noted yesterday, the GOP has morphed into the Confederacy.

There has been a steady exodus from the GOP as its MAGA core has assumed effective control of the party.  And to be fair, there are still plenty of people who continue to vote Republican who do not fall into that category, although their willingness to ignore the obvious makes them complicit at best.

Those of you reading this post may disagree with the assertion that Americans are fighting over morality, not politics as we typically understand that term. But accurate or not, millions of thoughtful Americans  believe they are engaged in a battle for the soul of this nation, and are horrified by what they see as the willingness of some 40% of their fellow-citizens to spit on the aspirations of our founding documents and subvert the rule of law in order to retain a privileged status that they enjoy solely by reason of their skin color, gender and/or religion.

This isn’t politics as usual. It isn’t even politics as that term is usually understood.

Americans are having a profound and fundamental argument about reality, the nature of justice, the obligations of citizenship, and the kind of country we will leave our children and grandchildren.

That’s a hard chasm to bridge.

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Middle Schoolers Solve Gerrymandering!

One of the many structural problems that prevents America from experiencing genuine democratic accountability is gerrymandering. Those of you who have been reading this blog for more than a few months will have encountered my frequent posts describing the multitude of ways that partisan redistricting–aka gerrymandering–distorts election results and operates to suppress citizen participation.

Over the years, the Supreme Court’s majority has declined to find partisan redistricting unconstitutional or even justiciable–piously labeling it a “political question.” One of the Court’s excuses was the unavailability of reliable tests to determine whether a vote margin was the result of a gerrymander or simply a reflection of majority sentiment. Even after tests were developed that proved their accuracy to the satisfaction of lower courts,  the Supreme Court declined to rule against the practice, reinforcing the widespread conclusion that the Justices’ decisions were impelled more by ideology than an inability to determine whether gerrymandering had occurred.

Now, according to a fascinating article from Forbes,  a group of middle-school children has demonstrated the ability to separate the wheat from the chaff–or in this case, the gerrymander from political enthusiasm.

The article began by noting that the practice of gerrymandering is used to “dilute the voting power of certain constituents, minorities, and other groups.” (In the felicitous phrase coined by Common Cause, gerrymandering is the process that allows legislators to choose their voters, rather than the other way around.)

As the subject of their science research project, three middle school students from Niskayuna, New York, decided to take on this serious issue. In their work, Kai Vernooy, James Lian, and Arin Khare devised a way to measure the amount of gerrymandering in each state and created a mathematical algorithm that could draw fair and balanced district boundaries. The results of the project were submitted to Broadcom MASTERS, the nation’s leading middle school STEM competition run by the Society for Science & the Public, where Vernooy, 14, won the Marconi/Samueli Award for Innovation and a $10,000 prize.

These middle schoolers, who are too young to vote, decided to use scientific research to solve the problem of identifying when a redistricting map was the product of a gerrymander. They came up with a method of identifying political communities and regions of like-minded voters, then grouped those communities together to form precincts.

Each precinct was adjusted to include a compact or circle-like shape, a similar population size and a similar partisanship ratio. The result was a simple representation of where groups of like-minded voters live in each state.

These precincts were then compared to actual voting districts within the state. The comparison shows the percentage of people that are in the precinct but not the district, therefore illuminating the number of people that the district fails to represent. Using this method, they were able to give each state a gerrymandering score.

The article included color-coded maps illustrating the process the middle-schoolers devised. It ended with the pious hope that “the right people” would take note.

The article should serve to remind us that there are solutions even to seemingly intractable structural problems. The disinclination of the Court and Congress to actually implement those solutions is a different kind of reminder.

That disinclination reminds us that the people who benefit from cheating are unlikely to be interested in stopping the practice.

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