Tag Archives: reform

Josh Marshall Hits A Home Run

Talking Points Memo just celebrated 25 years of online political reporting. It’s a “go-to” source for many, if not most, political observers. Heather Cox Richardson, among others, frequently cites publisher Josh Marshall, and TPM is one of my trusted sources for insightful political analysis.

In a recent column, Marshall proposed a basis for evaluating Senators, and I strongly agreed with his criteria for “purging” those who don’t pass his tests. He identifies a series of issues that he says can give voters “a clear indication of whether they are serious about confronting the challenge of the moment or battling back from Trumpism.” He analogizes the process to a status interview you might hold if you were a new manager hired to turn around a failing company–a “sit down” with every employee to determine whether they’re part of the solution or part of the problem.

Marshall identifies five issues. The first is the filibuster. He writes that lawmakers who support keeping the filibuster “are not serious about moving the country forward in any positive direction.” Support for the filibuster means that Senator should be primaried and removed from office, because absolutely none of the legislation that is required to repair America’s government can happen with the filibuster in place. As he writes, “If you support the filibuster that means that your response to Trumpite autocracy is to do nothing and hope for the best. That’s unacceptable and you need to go.”

The second identified issue is Supreme Court reform. Marshall notes that it is only within the past two or three years that he has reluctantly come to that conclusion, which has been forced by the corruption of the Court majority.

They have cut free not only from precedent but from any consistent or coherent theory of the Constitution, no matter how wrongheaded. The purpose of the high court is not to run the country. It is to render decisions on points of constitutional and legal ambiguity in a good faith and broadly consistent manner. It is now engaged in purely outcome-driven reasoning, mixing and matching doctrines and modes of jurisprudence depending on the desired ends, with the aim of furthering autocratic and Republican rule. That is the heart of the corruption. Passing laws doesn’t matter if they can and will be discarded simply because six lifetime appointees don’t like them. That’s a perversion of the constitutional order. I know this one is hard to swallow for many people. It doesn’t come easily to me either. But the facts of the situation and fidelity to the Constitution require it.

Like Marshall, this conclusion was difficult for me, but the sheer intellectual dishonesty of the majority has convinced me that we will not return to the rule of law without substantial Court reform.

Those first two criterions are Marshall’s “most important,” because without them, the next three won’t happen.

Number three is (finally!) making DC and Puerto Rico into states. He acknowledges that this isn’t as essential as the first two, but it’s very important, and it’s the right thing to do. DC and Puerto Rico should in fact be states. It really is bizarre–and unfair–that citizens living in two U.S. jurisdictions simply don’t have the political rights that every other American enjoys.

We now know that Marshall’s number four is especially important. He calls it “clearing the law books.”

As we’ve seen over the last year, the U.S. federal code is full of laws which assume the sitting president broadly supports the federal Constitution, civic democracy and the best interests of all American citizens. We know now that that is a dangerous assumption. There are lots of laws which grant the president vast powers if things get super weird. And the president is in charge of deciding whether they’re weird. A lot of this is the dirty work of the corrupt Republican majority on the Supreme Court. But a lot of the laws are genuinely far too ambiguous. We need to change all of those laws. That involves potentially creating different harms by weakening the presidency. There are cases when you want a president to be able to move expeditiously and effectively in emergencies. Laws will have to be revised with that contrary danger in mind. But right now the balance is far too much in the direction of presidential power.

And number five? Here, Marshall proposes something near and dear to my heart: outlawing gerrymandering with a federal legal framework governing how maps can be legitimately drawn.

As Marshall acknowledges, it’s not an exhaustive list. But it would be a strong beginning.

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The Scalpel Versus The Blunderbuss

Every day, we see another headline reporting another example of Trump’s continuing–and often random– assault on federal governance and scientific expertise. A recent example, and not even one of the most consequential, was a decision scrapping satellite observations of Earth. Administration officials decided that those satellites “go beyond the essential task of predicting the weather.” In Trumpworld, only weather forecasts warrant government investment — not instruments that monitor climate, and–horrors!– might confirm the reality of climate change.

As the Washington Post reported,

Language in a National Oceanic and Atmospheric Administration budget calls for preserving funding for the National Weather Service while slashing anything tied to climate change, limiting government investment to “research that is more directly related to the NOAA mission.” It echoed a call in the Republican policy playbook Project 2025 to dismantle climate research, which the report said drives “the climate change alarm industry,” while continuing to improve weather forecasting accuracy.

But scientists said there is no such division between weather and climate — and that losing climate data will actually hurt weather forecasting.

The article explains the fallacy at the root of this particular decision, but it is representative of the incompetence–and increasing insanity– of the entire administration.  It’s just one example of what happens when decisions about governance are dictated by ideology rather than science or evidence. (Then, of course, there are the decisions that simply reflect Trump’s pique and uninformed tantrums…)

I count myself among the many critics who can point to areas of American government clearly requiring reform and reconsideration. But as any rational adult understands–and as the damage inflicted by Elon Musk and his band of DOGE children amply demonstrated– effective reform is considerably different from uninformed destruction.

It’s the difference between the scalpel and the blunderbuss.

Thoughtful reform begins with basic questions: is this activity a proper function of government, or might it better be left to the private sector? If it is something that we should expect government to do, should it be done “in house,” by public servants, or is it something that should be contracted out while being monitored by government? if the latter, does government have the capacity and resources to do that monitoring?

Once we have answered those questions, and decided that–yes, this is an activity that is appropriately governmental–the exercise moves to the next step. What is this activity accomplishing? How well is it performing? If we discontinue or materially change it, what are the likely consequences? Are those consequences acceptable?

Answering such questions requires–at a minimum–an understanding of what the activity entails, the reasons it is being conducted, the reason government is doing it, the identity of businesses and citizens who rely upon it, and the consequences to them and the public of altering or discontinuing it. Once in possession of that information, a cost/benefit analysis can be conducted and a considered decision can be made.

Forgive me for belaboring the obvious, but this process bears absolutely no relationship to the wholesale blunderbuss being taken to our governing structures by the uninformed, incompetent buffoons and cranks who occupy positions of authority in the current administration. As the linked article concludes,

Satellite data might prove impossible to replace once cut off, scientists said.

More than ever, accurate weather prediction depends on climate science, said Riishojgaard, whose center works with government satellite agencies on data algorithms. Meteorology and climate science depend on the same data, and to a large extent, the same computer models, which are informed by a record of satellite data that now goes back nearly 50 years, he said.

“You now cannot do weather prediction without understanding the climate,” Riishojgaard said. “If you ignore the past, it’s like you’re looking out the window in the morning and saying, ‘What’s going to happen?’”

What, indeed?

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Public School Successes

I frequently post critiques of privatization–with special emphasis on school privatization, aka educational vouchers. Some twenty or so years ago, privatization enthusiasts had a standard answer for every perceived government malfunction: let the private sector do it! This approach had multiple, significant drawbacks, and as those drawbacks became too obvious and costly to ignore, the early enthusiasm faded–except in education, where the “market can solve all problems” ideologues were joined by rightwing activists pursuing a vendetta against teachers’ unions, and by religious folks who chafed at separation of church and state and wanted a First Amendment “work-around.”

“How do you improve the performance of the nation’s public schools?” was–and remains– a fair question. Urban school districts, in particular, face multiple challenges, and when the question of how to meet those challenges became an everyday topic following publication of A Nation at Risk, political figures offered two wildly competing suggestions: “the market can solve everything” ideologues insisted that competition from private schools would incentivize public school improvement; supporters of public education lobbied for additional resources, to be deployed in line with reforms suggested by new academic research.

As we know, vouchers won the political debate. It was a disarmingly simple fix, championed by people who not-so-coincidentally stood to gain from it. Unfortunately, however, despite the promises, vouchers have failed to improve test scores or educational outcomes. (They have been a financial boon for well-to-do families, however, a fact that will make it much more difficult to end these boondoggles.)

Surprisingly, the news is much better from those much-maligned public school systems. Take, for example, Chicago’s public schools, once one of the worst performing systems in the country. As the American Prospect recently reported, “a system that used to be ridiculed has become a model for schools in other cities.”

In 1987, a visit from Bill Bennett–then Secretary of Education–prompted labeling Chicago’s schools the worst in the country. Half of the district’s high schools ranked in the bottom 1 percent nationwide, nearly half of the students dropped out before graduating, and some schools were physical danger zones. Since then, however, Chicago’s public schools have become markedly better.

Black and Latino third graders from low-income families have been, at least according to 2017 data, outperforming their counterparts elsewhere in the state. Graduation rates rose to 84 percent in 2023, within hailing distance of the national average. In 2022, three-fifths of high school graduates enrolled in college immediately upon graduating high school, an increase from previous years, countering the national trend of declining college attendance during COVID; more of them are earning degrees than in the past. This track record is among the best urban school systems in the nation.

A new book, “How a City Learned to Improve its Schools” explains that structural changes, and the policies and practices that they generated, have emerged from a continuous improvement, ‘tortoise beats hare’ approach. As the book readily admits, Chicago’s improvement hasn’t been a straightforward march-to-success narrative. Struggles and setbacks have included teacher strikes, fights over school closures, administrative churn, and high-profile CEO misconduct.

But through it all, the system has continued to improve.

Graduation rates and other measures of accomplishment have continued their steady rise. Nor has the system lost its penchant for evidence-driven changes. The most significant example is the ongoing expansion of early education, with its demonstrated promise of shifting the arc of children’s lives, auguring well for their success. A commitment to experimentation has prompted the system to partner with the University of Chicago Education Lab in testing promising innovations, such as intensive math tutoring for ninth and tenth graders who were mired amid long division and fractions; and a summer internship program that has given students the soft skills they would need in the world of work.

Chicago isn’t alone. Another book, “Disrupting Disruption: The Steady Work of Transforming Schools” highlights three other successful systems: Union City, New Jersey; Roanoke, Virginia; and Union, Oklahoma–systems with a majority of students who are low-income and disproportionately racial and ethnic minorities. In each of these districts, the graduation rate has steadily increased and the opportunity gap has essentially become a thing of the past.

What lesson should we take from all this?

The American journalist H. L. Mencken said it best: “Every complex problem has a solution which is simple, direct, plausible — and wrong.” Fixing thorny problems is almost always an incremental task requiring consistent, evidence-based analysis and constant adjustment. Americans have an unfortunate penchant for simple, “plausible” remedies that don’t require hard work.

Far too often, as with our current costly, divisive and failed voucher programs, those “simple” ideologically-motivated solutions don’t improve anything–they just add new problems to the old ones.

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Reforming The Court

Recent disclosures ranging from ethical improprieties to clear corruption have lent urgency to longstanding calls to reform the Supreme Court.

Before those disclosures, most of the lawyers and scholars advocating for such reforms did so on the basis of work product–including the dwindling number of decisions the Court issues annually.

Even before the recent disclosures, legal theorists were concerned with the Court’s loss of democratic legitimacy. It isn’t just the appalling shenanigans of Mitch McConnell; Neil Gorsuch was the first Supreme Court justice in American history to be nominated by a president who had lost the popular vote and confirmed by senators representing less than half of the country. Brett Kavanaugh was second, and Amy Coney Barrett was third. 

 The subsequent evidence of Thomas’ and Alito’s corrupt behavior has been especially unsettling.

I used to defend lifetime appointments to the federal judiciary to my students, pointing out that security shielded jurists from political pressure. But  justices live a lot longer than they used to, and– as my lawyer son recently pointed out– the security afforded by those lifetime appointments also provides an incentive to ignore the rules. With a closely divided Congress, and in the absence of the enforceable ethical codes that bind lower-court judges, they are effectively shielded from consequences. As a practical matter, they’re above the law.  

It’s time to consider reforms.

An article by the Brennan Center, published just after the leak of Dobbs suggested several. The article began by describing the far-right Federalist Society’s decades’ long, successful effort to capture the Court.

Beginning in the 1970s, corporate interests wary of 1960s socio-political movements developed and funded comprehensive infrastructure to advance a far-right agenda, focusing on the judiciary as an instrument for social, economic, and political change. A crucial component of the plan to push back against left-leaning legal successes was the organization and mobilization of conservative lawyers and judges who could ensure that corporate America’s preferred socioeconomic and political order was upheld in the courts. It is in this ecosystem that the Federalist Society emerged and built an empire around shepherding future leaders of the conservative legal movement into judgeships. All six justices appointed by Republican presidents are current or former Federalist Society members.

Some scholars recommended reforms that would constrain the Supreme Court’s ability to invalidate certain types of legislation. Others would regularize Supreme Court appointments and require periodic judicial turnover.  Still others would expand the Court.

One of the most popular suggestions would impose term limits–terms long enough to insulate jurists from political passions–18 years is popular– but short enough to avoid the negatives of lifetime tenure.

An article in Politico argued that a proposal to impose term limits could generate bipartisan support.

The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.

There is a significant hurdle to overcome.

Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are hard to enact. We have not amended our Constitution since 1992, and we have done so only once in the past half-century. But there is reason — even in these politically polarized times — to believe that constitutional reform is possible.

As the essay from the Brennan Center noted, however. court reform movements have a long history at the state and federal level – and have often seemed impossible until changes in the political environment made them all but inevitable.

And as Politico reported,

What is more, almost every state in the union imposes term limits on its state supreme court justices, a mandatory retirement age, or both. Only Rhode Island has a system of life tenure akin to the federal model. It should come as no surprise, therefore, that when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.

It is abundantly clear that we have reached a crisis point. The current court has issued a string of decisions that are not just wildly unpopular, but at odds with decades of precedent.  it has increased its misuse of the shadow docket, and all but declared war on the agencies of the administrative state. Worst of all, sitting Justices have engaged in activities that range from demonstrably corrupt (Thomas, Alito) to ethically questionable (Roberts, Gorsuch, Barrett, Sotomayor).

It’s time for substantial reforms.

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The Only Real Question

When I was a new lawyer, practicing in what was at that time a big law firm (52 lawyers), the partner I worked for insisted that there was only one legal question: what should we do?

In other words, while we might analyze the legal issues in the matter before us, while we might determine what mistakes our client or others had made, that analysis was only important to the extent it helped answer the question, which was “what should be done?”

I think about that focus a lot, because it’s the same question we need to be asking about America’s political situation.

It’s easy to be cynical these days. It’s easy to fall into a position of a “pox on both/all their houses.” There are people who take–and loudly voice– that approach every time Trump or McConnell or others in the GOP do something destructive or venal–which is pretty much every day. Yes, they say, the GOP is terrible, but the Democrats aren’t much better. People in both parties are bought and paid for. The entire political class is corrupt and self-serving, everyone in Washington has sold out to the plutocrats, and the same plutocrats own the news media so we aren’t getting the whole story. Etc.

I don’t happen to agree with that broad-brush indictment, but let’s say–for the sake of argument–that it’s true. If our entire political class is corrupt, what should be done? That is a question that the cynics never answer–and seldom even ask.

One remedy, of course, would be revolution. History suggests that violent revolutions rarely achieve their stated goals–that after blood is shed and lives disrupted, the “soldiers” of the revolution who assume power end up being as self-serving and corrupt as the people they displaced. In any event, in today’s U.S., revolution is highly unlikely.( It would also be highly unlikely to succeed, despite all those gun hoarders who insist that they need weapons to repel government tanks and artillery.)

I suppose we could all just “get over it,” to use Mick Mulvaney’s inelegant phrase. Just mutter and growl, and learn to live with a degraded and unprincipled system. Like the Russians.

Or we could begin the arduous but necessary process of reform with the recognition that there are a lot of people who go into government for the right reasons, whose behaviors may sometimes be constrained by “the system,” but who are honorable, who want to serve the public good and who act accordingly.

We could also distinguish between a political party that has gone completely off the rails (a recognition that is particularly painful for someone–like me–who worked for that party for 35 years) and a party that includes a wide range of people, some of whom are exemplary and some of whom are considerably less admirable. We could then support the party that is, today, clearly the lesser of two evils.

Then, if we wanted to do more than bitch indiscriminately, if we wanted to clean up those areas of our governance that have rotted out over time, we could get off our butts and get to work.

We could return civics to public school curriculums, help marginalized folks participate in the political process, lobby for an election law overhaul that would deter gerrymandering and vote suppression and make it easier to cast a ballot. We could support–or reestablish–local news organizations that would recognize their responsibility to act as local government watchdogs. Those of us who have the time and flexibility could research policy proposals, attend public meetings, and call or message our elected officials.

An informed electorate could engage in the admittedly hard work of incremental reform–which, despite the lack of glamor and the need to partner with imperfect people, is the way virtually all sustainable reforms get done.

We could act like citizens rather than subjects.

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