Tag Archives: rule of law

Lawyers Are Grieving

Constitution,

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.

 

Vigilante “Justice”

Public Policy and Governance, , ,

America seems to be experiencing a troubling upswing in what we might call vigilante “justice.” It isn’t limited to cases like the murder of Ahmaud Arbery or the cowboy fantasies of Kyle Rittenhouse–in Texas, the state legislature, unhappy with constraints imposed by the rule of law, turned over state authority to vigilantes willing to ignore legal process in pursuit of their notions of righteousness (and money).

As one scholar of America’s history of “vigilante justice” has written,

Through U.S. history, the distinctions between vigilantism and lawful arrest and punishment have always been murky. Frequently, vigilantism has been used not in opposition to police efforts, but rather with their active encouragement. Indeed, in some recent protests that still seems to be the case.

Before police departments existed, arrests were made under traditional common law, which depended on private participation in legally organized posses and serving as deputies. Institutions like slave patrols required that non-slave owners were willing to use, or at least permit, violence to maintain white supremacy…

Even the spate of “stand your ground” laws passed in the last 15 years borders on vigilantism, giving private citizens lots of freedom about how to use force to protect themselves.

The linked article makes the point that vigilantism has often “abetted the worst instincts in the politics of crime in the U.S.,” reducing notions of justice to whatever the people want it to be at any given time, rather than the rule of law. That, of course, allows the majority to disadvantage marginalized minorities with impunity, and gives police permission to act violently.

If there’s any doubt that today’s vigilantes act to protect White Supremacy, legislation offered by Congressional looney Marjorie Taylor Greene to award the Congressional Medal of Honor to Rittenhouse should resolve the issue.

In a recent essay, Charles Blow considered the effects of the Rittenhouse verdict on the growing vigilantism of today’s Right wing. As he notes,

One can argue about the particulars of the case, about the strength of the defense and the ham-handedness of the prosecution, about the outrageously unorthodox manner of the judge and the infantilizing of the defendant. But perhaps the most problematic aspect of this case was that it represented yet another data point in the long history of some parts of the right valorizing white vigilantes who use violence against people of color and their white allies…

The idea of taking the law into one’s own hands not only to protect order, but also to protect the order, is central to the maintenance of white power and its structures.

As we now know, the jury saw the Arbery racists for what they were, thanks to an effective prosecution, but the system only worked because a video existed and was seen.

As Blow notes, the vigilante impulse can render justice or terror, depending on its use and one’s perspective, but it has been a longtime, central feature of the American experience–as has the practice of making heroes of vigilantes, as today’s Right is doing.

One could argue that the entire Jan. 6 insurrection was one enormous act of vigilantism.

You could also argue that our rapidly expanding gun laws — from stand your ground laws to laws that allow open or concealed carry — encourage and protect vigilantes.

It goes without saying how ominous this all is for the country. Or, to turn the argument around, how intransigent the country is on this issue of empowering white men to become vigilantes themselves.

Black vigilantes are not celebrated, but feared, condemned and constrained by the law.

Blow reminds readers that when Black Panthers showed up at the California Statehouse with guns, their vigilantism led to huge backlash, including legislation tightening gun laws and prohibiting open carry in the state. As he says–and as we all know–“Whether vigilantes are viewed as radical or righteous is often a condition of the skin they’re in.”

I worry along with Blow that the verdict in the Rittenhouse case will encourage other vigilantes, especially among those on the Right who don’t want to see streets filled with people demanding redress from official misconduct. There are undoubtedly other Rittenhouses out there — angry and immature young men who will take exactly the wrong message from the way in which the Right is celebrating the acquittal of a murderer.

Vigilantism differs dramatically from civil disobedience, where individuals violate a law in order to make a point, and willingly accept the consequences. They are expressly upholding the rule of law, and underlining its importance.

The pursuit of justice cannot include the arming, empowering and/or rewarding of White Supremicist vigilantes– or any other kind, for that matter.

 

Living In Wacko World

Constitution, Public Policy and Governance, , ,

There is much that I don’t understand about the Americans who continue to support Donald Trump and the Big Lie. There’s even more I don’t understand about today’s GOP, which looks absolutely nothing like the political party to which I devoted some 35 years.

Here’s a smattering of what I don’t get:

  • How do these people explain away the hysterical refusal of the Trump mob to testify to Congress or hand over documents? If they have nothing to hide, why would they act this way? From my lawyering days, I still remember the concern of criminal defense lawyers that a client’s failure to testify would be taken by a jury as evidence that the client had something to hide; in fact, there was a standard (and undoubtedly ineffective) jury instruction to the effect that the jury should refrain from making that obvious assumption.
  • How do they justify the rage and recriminations focused on the few members of the GOP who voted to repair the nation’s decaying infrastructure–especially when Trump tried and failed for four years to have his own “Infrastructure week”? Don’t they drive on our crumbling roads and worry about our failing bridges? How do they explain to themselves and others the GOP insistence that defeating anything  President Biden wants is more important than actually getting things that obviously need to be done, done?
  • What in the world prompts Republicans to threaten “reprisals” for the indictment of Steve Bannon? Bannon was indicted for contempt of Congress. There is no quarrel with the accuracy of the charge: he publicly refused to testify to the committee investigating the January 6th insurrection, and just as publicly refused to provide documents Congress identified. If individuals can ignore Congressional subpoenas, if they can thumb their noses at lawful investigations, we are really in Wild West territory. Yet members of the GOP are warning that Democrats’ efforts to force Bannon to comply “paves the way for them to do the same if they take back the House in 2022.”  According to the Washington Post report linked above, “most high-profile GOP leaders have quickly turned Bannon’s indictment into the latest litmus test for loyalty to the former president.”

This is evidently where we are: if the rule of law gets in the way of partisan loyalties, well, the rule of law must go.

What must also go in this world-view is the First Amendment of the  U.S. Constitution.

Last week, Trump’s disgraced former national security advisor, former General Michael Flynn, spoke at a “Reawaken America” conference in San Antonio, Texas. (According to multiple reports, the conference was intended to reinforce the Big Lie that the 2020 election was stolen, and to support the argument that vaccine requirements infringe Americans’ liberties.) Flynn told the audience: “If we are going to have one nation under God, which we must, we have to have one religion. One nation under God, and one religion under God.”

The former national security adviser also characterized the investigation into the riot as “the insurrection crucifixion” and likened House Speaker Nancy Pelosi to Pontius Pilate. “This is a crucifixion of our First Amendment freedom to speak, freedom to peacefully assemble. It’s unbelievable,” Flynn said.

Flynn’s speech was one of the more explicit endorsements of what the Rightwing political fringe has clearly wanted–and what respect for the rule of law has impeded–a “Christian” nation. (Actually, a nation ruled by White Christian males.)

This is hardly the first time Flynn gets attention for his statements that seem to go against some of the basic tenets of American democracy. In May, Flynn said at a QAnon conference that a military coup like the one that took place in Myanmar “should happen” in the United States. Flynn was Trump’s national security adviser for less than a month and resigned after it was revealed he lied about conversations with the Russian ambassador to the United States. Flynn twice pleaded guilty to lying to the FBI and Trump pardoned him.

What I don’t get–what I cannot wrap my head around–is how non-mentally-ill Americans (even those who get their “news” from Fox) can look at these and so many other examples of the GOP assault on logic, democracy, reality and the rule of law and tell themselves that they are the behaviors of “true Americans.”

If gerrymandering delivers Congress to the GOP next year, we are going to be living in a very different country than the one in which most of us grew up.

 

Mitch McConnell Issues A Threat

Public Policy and Governance, ,

This morning, I’ve created a theoretical exercise. it’s intended to put you in the proper frame of mind to consider the latest outrage from Mitch McConnell–aka the most dangerous man in America.

Assume we are watching a TV western. The sheriff–having won a hard-fought election in his scruffy border town by promising to keep the residents safe from (unspecified) “bad guys”–issues a proclamation promising to deal severely with law-breakers. Well, maybe not all law-breakers. He’ll deal severely with any law-breakers who supported his opponent in the election.

If someone who supported him breaks the rules, however, he says he’ll look the other way.

If we encountered  a show with that plot device, we’d be incredulous–not only is that not what we mean when we champion law and order, we’d turn the TV off while muttering about the ridiculous premise–after all, when TV bad guys decide to engage in nefarious acts, they don’t typically broadcast that intention. If that storyline did appear in our fictional TV episode, we’d expect the local folks–including those who’d supported the sheriff– to rise up and run him and his co-conspirators out of town, thereby reinforcing the primacy of justice over partisanship.

Which brings us to Mitch McConnell.

After the Senate confirmed Judge Ketanji Brown Jackson to the Court of Appeals for the District of Columbia (Jackson, a Black female jurist, will replace Merrick Garland), McConnell reacted with a threat.

In an interview with the conservative radio commentator Hugh Hewitt, Mr. McConnell said Republicans would most likely block any Supreme Court nominee put forward by Mr. Biden in 2024 if Republicans regained control of the Senate in next year’s elections and a seat came open.

Along with most lawyers, I was astonished and infuriated in 2016 when McConnell brazenly refused even to consider Obama’s Supreme Court nomination of Merrick Garland, piously intoning that it was “too close to the presidential election,” although that election was months away and nominees had previously been confirmed to the Court during similar timeframes..

As we all saw, that excuse was shown to be the partisan hogwash it was when Trump nominated, and McConnell pushed through,  Amy Coney Barrett a mere six weeks before the November election.

Republicans who had banded together in 2016 at Mr. McConnell’s urging and declared that it was not appropriate to confirm a Supreme Court nominee during an election year had remarkable conversions in the case of Judge Barrett. The Republican leader insisted that he had not changed his position, arguing that because Mr. Obama was a Democrat, it was entirely appropriate for members of his party to block his nominee.

“What was different in 2020 was we were of the same party as the president,” Mr. McConnell told Mr. Hewitt. “And that’s why we went ahead with it.”

Partisan misuse of power, in McConnell-land, is “entirely appropriate.”

America without the rule of law would not be America. As far short of our aspirations and stated beliefs as this country has often fallen, it still seems absolutely incomprehensible that a high-ranking, powerful political figure would publicly–proudly!– trumpet his intention to ignore so foundational a principle.

I often refer to the rule of law, assuming readers understand its importance. The shorthand we all hear is: the same rules apply to everyone. Maybe that’s too abstract.

As an educational site maintained by the US Courts defines the concept:

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: Publicly promulgated, Equally enforced, Independently adjudicated; and consistent with international human rights principles.

The Trump administration waged an unrelenting attack on the rule of law, culminating with Trump’s pardons of some of its sleaziest transgressors. But even Trumpers as morally and ethically compromised as Bill Barr drew the line at publicly announcing their disdain for fair and equal application of the rules.

McConnell is the sheriff from my mythical TV show–the guy who publicly announces that the rules don’t matter–that whenever possible, he will ignore fundamental fairness and the national interest, and exercise power solely to privilege his partisans.

In a very real sense, he has promised  a coup. 

Michael Flynn must be so pleased.

 

 

Pride Month Musings

Gay Rights, , , , ,

June is Pride Month. It wasn’t so long ago that today’s widespread recognition of–and support for– Pride would have been unthinkable. In my adult lifetime, there have been few changes in social attitudes as swift or as welcome as the legal and social acceptance of LGBTQ Americans.

That said, progress inevitably invites blowback. We are particularly seeing it in punitive legislation directed at transgender Americans. But we are also seeing continued opposition to gay equality from the same Christian Nationalists and religious fundamentalists who are determined to ignore America’s history of racism and other bigotries.

The good news is that anti-gay attitudes are far less pervasive among young Americans; in fact, sociologists and scholars of religion attribute much of the exodus by young people from fundamentalist congregations to distaste for their theological homophobia. Among older, conservative, religious Americans, however, LGBTQ citizens still encounter considerable bias–and when sexual orientation is coupled with HIV, no matter how well controlled, considerable stigma.

It’s tempting, during Pride month and especially during the local celebrations and parades, to focus on the considerable progress made by the gay community, and that progress is well worth celebrating. But it’s important to couple the celebration with recognition of remaining challenges.

For that matter, the contemporary lessons to be drawn aren’t  limited to LGBTQ issues.

Over the years, Black Americans, gay Americans, Jewish and Muslim Americans and other minorities have achieved significant legal protections: civil rights and anti-discrimination laws, and (in the case of LGBTQ folks) recognition of same-sex marriage have all gone a long way to level the legal playing field.

Hearts and minds have proved to be a harder nut to crack.

Too many Americans approach issues of inclusion and equality from a “zero-sum” perspective. The fear of “replacement” (more on that in upcoming posts) is an example. The evident calculation is that If “those people” get rights, my rights have been correspondingly diminished. The history of the gay rights struggle provides an excellent example; remember the hue and cry over “special rights”? The argument was that laws requiring equal legal treatment of gay men and lesbians were really an award of “special rights,” and the implication was that straight people didn’t have those “special rights.” 

When the Founders hammered out the U.S. Constitution, one of its most significant breaks with the past was the establishment of a legal system that would evaluate citizens based upon behavior, not social status or identity. Even when America hasn’t lived up to the principles set out in our constituent documents—and we frequently haven’t—the  official American vision has been one of a society in which group identity is legally irrelevant, a society where an individual’s conduct is the only proper concern of government.

In other words, in America, individuals are supposed to be rewarded or punished based upon what they do, not who they are. Race, religion, gender, sexual orientation and similar markers of group affiliation are supposed to be irrelevant to our legal status. No matter how meaningful those affiliations may be to us personally, the government may not award or restrict our rights based upon them.

Although they seem unable to understand or accept it, that basic element of America’s rule of law protects Christian Nationalists as well as members of minority populations.

The larger challenge we face is how to internalize that legal premise. How do we socialize our children into a worldview that sees other human beings as other human beings, and accepts or dismisses them individually, based upon their actions and behaviors–evidence of the content of their characters–not on their skin color, their sexual orientation or their theological preferences.

We have a way to go…

Happy Pride Month.