rule of law – Page 5 – Sheila Kennedy

The Favoritism Regime

As I often try to explain to students, there is an important difference between rights and privileges. The essential element of the rule of law–the characteristic that distinguishes it from the exercise of power–is that the same rules apply to everyone. If everyone doesn’t have rights, no one does. Some people may have privileges, but that isn’t the same thing.

The deal is, the person engaging in free speech who is saying something with which you disagree has the same right to voice his opinion as the person with whom you agree. If we don’t all play by the same rules, if some people have more “rights” than others, no one really has rights. They have privileges that can be withdrawn if they offend or oppose those in power.

The rule of law is fundamental to a constitutional government. It is glaringly obvious that Donald Trump does not understand either its definition or its importance. It is equally obvious that he wouldn’t respect it if he did. Like most autocrats and would-be autocrats, he is all about self-aggrandizement, the exercise of power and the ability to reward his friends and punish his enemies.

Trump’s lack of comprehension of, or respect for, the rule of law is one of the many reasons he is so unfit to hold public office.

What triggered this rant was an article about Trump’s decision to impose tariffs on steel and aluminum–a decision he has evidently been reconsidering in recent days. (When your policy pronouncements emerge from impetuous impulses rather than considered analyses, they do tend to change on a day-to-day basis…) The article described the proposed tariffs and their potential consequences, and reported on the number of U.S. companies that were scrambling to win exemptions to them.

As of the time of the article, the Commerce Department had evidently received 8,200 exemption requests.

Let’s deconstruct this.

Assume you owned a company that relied upon imported metal to manufacture your widgets. The government moved to impose tariffs, which would increase your costs and make your widgets less competitive with the widgets manufactured in other countries. Assume further that you applied for an exemption from the new rule, based upon some tenuous argument or plea of hardship. Wouldn’t you be likely to do whatever you could to curry favor with the administration dispensing those exemptions? You’d almost certainly dig deep to make a political contribution.

“Pay to play” is, unfortunately, nothing new in American politics. Engineers and others who bid on government projects know that a history of political donations may not be enough to get them the contract, but is necessary to ensure that their bid is one that will at least be considered.

That said, unsuccessful bidders who believe that a contract has been awarded to a company that didn’t meet the statutory criteria–a donor whose bid was not “lowest and best”–can sue. And win. It happens more often than you might think.

Of course, the ability to sue and have your complaint judged fairly requires that the country’s judicial system be both impartial and competent. That’s one reason this administration’s rush to fill judicial vacancies with political cronies is so pernicious.

In places where government agencies can confer benefits at their discretion–routinely the case in autocratic regimes–and there is no legal recourse, corruption is widespread and inevitable. (See: Putin’s Russia) Quid pro quo replaces rule of law.

That’s the path America is on right now. If the GOP enablers in Congress survive the midterm elections, the prospects for turning things around will be very, very dim.

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Playing Fair Is So Last Century…

What we have been learning the last few days about Cambridge Analytica’s use of purloined Facebook data to assist the Trump campaign reminds me of that famous scene from “Raiders of the Lost Ark”–the scene where Harrison Ford is engaged in a ferocious sword fight, and Ford suddenly pulls out a gun and shoots the other guy.

It’s unexpected–and effective–because it breaks a norm of “fair fighting” that that has shaped our expectations. In a movie, that norm-breaking is entertaining; in our communal life, it is considerably less so.

Cambridge Analytics acquired extensive data on the habits, personal characteristics and preferences of fifty million Facebook users. It used that data to assist the Trump campaign. Sophisticated algorithms targeted users with messages tailored to their particular opinions and biases–messages that, by their nature, went unseen by users who had different perspectives or who might have information with which to rebut “facts” being conveyed.

The New York Times and the London Observer mounted the joint investigation through which the covert operation was uncovered, and Britain’s Channel 4 obtained footage of executives boasting to a reporter posing as a potential client about additional “dirty tricks” the company employed on behalf of its customers: sending “very beautiful” Ukranian sex workers to the homes of opposition figures; offering bribes to candidates while secretly filming them; and a variety of other tactics employing fake IDs and bogus websites.

Who or what is Cambridge Analytica?

The Mercer family owns a majority of the stock in Cambridge Analytics.Before joining Trump’s campaign, Steve Bannon was the company’s vice president. Former national security adviser Michael Flynn served as an adviser to the company.

As Michelle Goldberg wrote in a New York Times op-ed,

After days of revelations, there’s still a lot we don’t know about Cambridge Analytica. But we’ve learned that an operation at the heart of Trump’s campaign was ethically nihilistic and quite possibly criminal in ways that even its harshest critics hadn’t suspected. That’s useful information. In weighing the credibility of various accusations made against the president, it’s good to know the depths to which the people around him are willing to sink.

Her concluding paragraph is particularly pointed.

There’s a lesson here for our understanding of the Trump presidency. Trump and his lackeys have been waging their own sort of psychological warfare on the American majority that abhors them. On the one hand, they act like idiots. On the other, they won, which makes it seem as if they must possess some sort of occult genius. With each day, however, it’s clearer that the secret of Trump’s success is cheating. He, and those around him, don’t have to be better than their opponents because they’re willing to be so much worse.

We now know why Trump insisted that Hillary was “crooked” and the election would be “rigged.” It’s called projection.

My friends who are sports fans become outraged when they believe one team or another has cheated and benefitted from that behavior. (“Deflate-gate anyone?) After all, games have rules, and when rules are broken in order to achieve a win, the game is tarnished. We don’t know who the better player really is.

The “game” of electoral politics has a long history of so-called “dirty tricks,” but nothing of this magnitude–and when those tactics have been detected, they’ve led to widespread condemnation. Americans have a right to expect political combatants to “play fair.” When they don’t, cynicism grows. Trust in government is diminished. Citizens’ compliance with the law declines–after all, if government officials can cheat, people reason they can too.

Trump and his consiglieres in the cabinet and Congress have demonstrated their willingness to bring guns to sword fights–to breach the rules of the game and to sneer at those who”fight fair.”

They pose an existential threat to American government and the rule of law.

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Yep–Kakistocrisy

Every once in a while, I think about James Madison’s touching belief that Americans would elect “the best and brightest” to represent them in the halls of government. (He’s probably spinning so fast in his grave he may be in China by now.)

Anyone who reads or listens to the news can contribute their own preferred anecdote to the daily and dispiriting evidence of ideology, idiocy and/or corruption in Washington, so file this post under “what else is new?” I must say, however, the violation of previously respected norms and basic rational expectations is becoming more blatant by the day.

The New York Times first carried the story I’m sharing today.The title is the giveaway: “How $225,000 Can Help Secure a Pollution Loophole at Trump’s EPA.”

CROSSVILLE, Tenn. — The gravel parking lot at the Fitzgerald family’s truck dealership here in central Tennessee was packed last week with shiny new Peterbilt and Freightliner trucks, as well as a steady stream of buyers from across the country.

But there is something unusual about the big rigs sold by the Fitzgeralds: They are equipped with rebuilt diesel engines that do not need to comply with rules on modern emissions controls. That makes them cheaper to operate, but means that they spew 40 to 55 times the air pollution of other new trucks, according to federal estimates, including toxins blamed for asthma, lung cancer and a range of other ailments.

The special treatment for the Fitzgerald trucks is made possible by a loophole in federal law that the Obama administration tried to close, and the Trump administration is now championing. The trucks, originally intended as a way to reuse a relatively new engine and other parts after an accident, became attractive for their ability to evade modern emissions standards and other regulations.

The survival of this loophole is a story of money, politics and suspected academic misconduct, according to interviews and government and private documents, and has been facilitated by Scott Pruitt, the administrator of the Environmental Protection Agency, who has staked out positions in environmental fights that benefit the Trump administration’s corporate backers.

How, exactly, did this happen?

Representative Diane Black is a Republican running for Tennessee governor. Tennessee Technological University is a state university that had produced a study minimizing pollution problems associated with the trucks. Ms. Black introduced legislation in 2015 to protect the loophole when the Obama Administration wanted to eliminate it. That bill failed, but after Trump was elected, she turned to Mr. Pruitt to carve out an exemption to the rule — and presented him with the study from Tennessee Tech.

Surprise! Fitzgerald had paid for the study, and had offered to build a new research center for the university on land owned by the company. It further sweetened the deal by generating at least $225,000 in donations to Ms. Black’s campaign.

Both businesses and environmentalists have condemned the loophole. That includes major truck makers like Volvo and Navistar, as well as fleet owners like the United Parcel Service. Even pro-business, pro-corporate, big-clout lobbyists like the National Association of Manufacturers have weighed in against it, joining health and environmental groups like the American Lung Association and the Consumer Federation of America.

In any other administration, a roster of opponents like those would shame government officials into backing down and ensuring that the rules applied to everyone. But not this collection of Trump’s “best people.” They’re shameless.

Not only are the favors being dispensed manifestly unfair to Fitzgerald’s competitors, not only does a quid pro quo that can be seen from space undermine trust in government and the rule of law, but this particular “favor” adds to the pollution of the air we all breathe, and contributes to climate change. (I know–Scott Pruitt refuses to admit that climate change exists. I’m convinced he knows better; it’s just that it is in his personal, political and financial interest to say otherwise.)

The current Republican Party–especially as represented in Congress and the Administration– is what you get when you marry a cult (Pence, Evangelicals, gun nuts and anti-intellectuals) to the Mafia (Paul Ryan, the Koch brothers, Trump and his sleazy cronies.)

They all need to be soundly defeated in November and in 2020.

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Going Courting

I know there’s a fierce competition for the title of “most harmful consequence” of the Trump Administration. There’s so much to choose from: sabotaging the Affordable Care Act, waging war on public education, reviving the racist and ineffective drug war, ensuring that new environmental regulations aren’t informed by science (and older ones aren’t enforced), drastically diminishing America’s role in world affairs (and making us a laughingstock among sentient people)…well, choosing just one assault on good government seems impossible.

That said, I want to make the case for Trump’s corruption of the federal judiciary.

Assuming Democrats take back (at least) the House in 2018, and further assuming Trump’s presidency won’t last the full four years (an assumption I make, given Muller’s investigation and Trump’s petulance), we can call a halt to most of the administration’s March to Armageddon and begin to repair the considerable damage done by the Confederacy of Dunces who currently hold sway in the Cabinet and White House.

The Courts, however, are another matter. Federal Judges have lifetime appointments, and what is particularly unnerving is the rapidity with which Trump is placing truly horrific nominees in vacancies that a destructive and partisan Congress prevented the Obama Administration from filling.

Readers who follow the news–which is most of those who come to this site–have probably heard about one of Trump’s most recent nominees, who is not only an unqualified whack job, but ethically challenged; he “neglected” to mention that his wife is employed by the Administration as Chief of Staff of the office that selects judicial nominees. As El Jefe reports at the World’s Most Dangerous Beauty Shop, Inc.,

This nominee is a 36 year old young man, 3 years out of law school who has never argued a case in court. Hell, he’s never even argued a motion in court. He’s a blogger who writes highly partisan posts, likes to call the last Democratic candidate Hillary Rotten Clinton, and wrote a piece during the last administration about how Barack Obama was destroying the Constitution by introducing legislation for background checks after the Newtown massacre. He was a speechwriter for Mitt Romney in 2012, and an aide to Luther Strange when he was appointed to be senator after Granny Sessions was named attorney general.

Who is this candidate, and what’s he nominated for? Why he is Brett Talley, and he’s been nominated to a lifetime position as a federal judge in the Middle District of Alabama. Oh, and it gets better; after coming to Washington with Luther Strange, he then took a job in the Justice Department in the office that does…wait for it…appointments to federal judgeships. Can you spell inside track? And one last little tidbit…he was unanimously rated by the American Bar Association as “not qualified” for this appointment.

Trump’s other nominees are equally horrific: Salon recently reported on some of them in an article titled “Trump’s Judicial nominees are so ludicrous, he may just be trolling us.”The ABA unanimously evaluated nominee Steven Grasz unqualified, explaining that Grasz’ “professional peers” reported that the nominee “puts his right-wing political views ahead of the law — and is “gratuitously rude” to boot.”

It takes a lot to be so noxious that the ABA will confer this kind of rating. For instance, Trump nominee Jeff Mateer, an appalling bully who says trans children are part of “Satan’s plan” and has suggested that same-sex marriage will lead to “people marrying their pets,” still got a “qualified” rating, though some members of the panel expressed reservations.

Two of Trump’s other district judge nominations, Charles Goodwin and Holly Lou Teeter, also received not-qualified ratings. Part of the issue here is that Trump has decided not to submit his picks to ABA review before a formal nomination, something that has only been done before by George W. Bush. It’s a symbol of the tribalism of the right, and conservatives’ increasing hostility to anyone perceived as not belonging to their tribe. Trump promised during the campaign that he would simply let the far-right Federalist Society pick his nominees for him, and that appears to be exactly what he’s doing. Just as conservatives have opted out of mainstream media, turning instead to Fox News and even more truth-hostile outlets like Breitbart, they’re turning away from mainstream professional organizations and other gatekeepers who seek to maintain a level of proficiency and competence that is seen as inherently threatening to the conservative agenda. If anything, Trump’s judges suggest that he’s thumbing his nose at the very idea of fitness and competence, just to show he can.

Of all his assaults on the rule of law, corrupting the federal judiciary by packing the courts with an assortment of (overwhelmingly white and male) partisan hacks is likely to do the most long-term damage.

Unfortunately, a Senate devoid of Republican statesmen is all too willing to confirm these deeply problematic appointments.

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Under The Radar

The Trump administration’s daily assaults to American laws and norms have produced a sort of outrage fatigue in many of us. That can be dangerous.

As we hold our collective breath and cross our fingers–hoping that Muller’s investigation will provide enough evidence of criminality and/or treason to make impeachment imperative, or for the Democrats to regain control of Congress in 2018, or (even less likely) for Republicans in the Senate to put the national interest above partisanship– we have difficulty keeping up with the multiple ways this administration is undermining the rule of law and weakening democratic norms.

The Resistance needs a strategy that distinguishes between horrific decisions that can be reversed if and when sanity returns to the Oval Office (or Republicans in Congress grow a pair), and those that will have profound and long-lasting negative effects on our constitutional system. We can afford to bide our time on the first category–although a lot of people will be hurt in the meantime –but we have to be absolutely ferocious in resisting measures that will damage the country in the longer term.

The media has highlighted Trump’s failure to fill hundreds of second-and-third level positions in his administration. That failure is further evidence of the ineptitude of the current White House, but it is also a blessing in disguise. (Case in point: the current nominee for Chief Scientist at the Department of Agriculture is not a scientist; he’s a right-wing talk show host. Better vacancies than filling an administration with such people. ). An administration that cannot function properly cannot do as much damage as one that efficiently pursues counterproductive policies.

At the same time, the media has been insufficiently alert to Trump’s alacrity in filling judicial vacancies. A recent report from Huffington Post began:

Thursday was a good day for Amy Coney Barrett. A Senate committee voted to advance her nomination to be a federal judge.

It wasn’t a pretty vote. Every Democrat on the Judiciary Committee opposed her nomination. They scrutinized her past writings on abortion, which include her questioning the precedent of Roe v. Wade and condemning the birth control benefit under the Affordable Care Act as “a grave infringement on religious liberty.” One Democrat, Al Franken (Minn.), called her out for taking a speaking fee from the Alliance Defending Freedom, a nonprofit that’s defended forced sterilization for transgender people and has been dubbed a hate group by the Southern Poverty Law Center.

But Republicans don’t need Democrats’ votes, and now Barrett, a 45-year-old law professor at the University of Notre Dame, is all but certain to be confirmed to a lifetime post on the U.S. Court of Appeals for the 7th Circuit — a court one level below the Supreme Court.

Barrett isn’t the only Trump nominee who is likely to upend settled Constitutional principles.

Consider John Bush. The Senate confirmed him in July, on a party-line vote, to a lifetime post on the U.S. Court of Appeals for the 6th Circuit. Bush, 52, has compared abortion to slavery and referred to them as “the two greatest tragedies in our country.” He has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted.

The Senate also confirmed Kevin Newsom, 44, to the U.S. Court of Appeals for the 11th Circuit in August. He wrote a 2000 law review article equating the rationale of Roe v. Wade to Dred Scott v. Sandford, the 1857 decision upholding slavery. He also argued in a 2005 article for the Federalist Society, a right-wing legal organization, that Title IX does not protect people who face retaliation for reporting gender discrimination. The Supreme Court later rejected that position.

Ralph Erickson, 58, was confirmed to the U.S. Court of Appeals for the 8th Circuit in September. As a district judge in 2016, he was one of two judges in the country who ordered the federal government not to enforce health care nondiscrimination protections for transgender people.

If Trump has been dilatory in filling administrative posts, he’s been an Energizer Bunny when it comes to the courts. He has already nominated 17 circuit court judges and 39 district court judges, far more than his predecessors.

He’s also got more court seats to fill, having inherited 108 court vacancies ― double the number of vacancies Obama inherited when he took office. (That’s largely thanks to Republicans’ despicable years-long strategy of denying votes to Obama’s court picks to keep those seats empty for a future GOP president to fill–a strategy that prioritized partisan advantage over justice by overburdening federal courts and causing lengthy delays for litigants.)

Federal judges have lifetime appointments. Usually, the country benefits from the fact that these jurists are insulated against the threat of arbitrary dismissal; federal courts are currently demonstrating the great value of an independent judiciary as checks on Trump’s most autocratic tendencies.

If the administration is able to fill the federal bench with Roy Moore clones, however, we can say goodby to checks and balances and the rule of law as we have understood it.

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