Tag Archives: rule of law

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.

Judicial nominees yet to be confirmed have supported discrimination against LGBTQ people, the “personhood” of fetuses, and a state’s right to criminalize “consensual sodomy.”

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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Trump’s Not The Only One Undermining the Rule of Law

One of the many reasons Trump’s pardon of Arpaio was so appalling was the nature of Arpaio’s behavior during the years he was sheriff. Trump’s pardon essentially endorsed the abuse of power.

Every time a public official–cloaked in the authority of the state–engages in self-serving, corrupt or unlawful behaviors, government legitimacy suffers. The most central principle of the rule of law is that no one is above it; the rules apply equally to the governed and those who do the governing.

Of course, if we don’t know what government officials are doing, we can’t enforce the rules.

One of the reasons our Constitution explicitly protects freedom of the press is because the press acts as a “watchdog,” ferreting out official misconduct. When Trump attacks unflattering coverage as “Fake News,” when Arpaio criticizes the press for pointing out that his actions are racist, they are attempting to delegitimize a critical element of Constitutional accountability.

Mother Jones recently provided an excellent example of how the system is supposed to work.  The magazine investigated and uncovered a Judge’s conflict of interest in the aftermath of an immigration raid that netted 400 undocumented workers. As the article notes, such workers are

usually charged with civil violations and then deported. But most of these defendants, shackled and dragging chains behind them, were charged with criminal fraud for using falsified work documents or Social Security numbers. About 270 people were sentenced to five months in federal prison, in a process that one witness described as a “judicial assembly line.”

Overseeing the process was Judge Linda R. Reade, the chief judge of the Northern District of Iowa… The incident sparked allegations of prosecutorial and judicial misconduct and led to congressional hearings. Erik Camayd-Freixas, an interpreter who had worked at the Waterloo proceedings, testified that most of the Spanish-speaking defendants had been pressured to plead guilty…

Yet amid the national attention, one fact didn’t make the news: Before and after the raid, Reade’s husband owned stock in two private prison companies, and he bought additional prison stock five days before the raid, according to Reade’s financial disclosure forms. Ethics experts say these investments were inappropriate and may have violated the Code of Conduct for United States Judges.

The subsequent discovery of emails and memos from Immigration and Customs Enforcement showed that in the months leading up to the raid, Judge Reade had repeatedly met with immigration officials and federal prosecutors. She had also attended a meeting with officials from the US Attorney’s Office where “parties discussed an overview of charging strategies,” according to ICE memoranda. In those meeting she learned that about 700 arrests were anticipated.

I’ve previously argued that prisons should never be privatized. Not only is incarceration an inherently governmental function, but the private prison industry lobbies (often successfully) for counterproductive public policies. Currently, CCA and Geo, the two largest prison companies, are actively resisting criminal justice reforms and the decriminalization of marijuana. The Mother Jones article points to a less-recognized danger–public officials succumbing to the temptation to “enhance” the value of their investments.

Today, dozens of people who were sentenced by Reade while her husband owned prison stock remain behind bars. According to the US Sentencing Commission, the Northern District of Iowa, where Reade sits, sends a significantly higher proportion of defendants to prison, and with longer sentences, than the national average.

Can we spell “appearance of impropriety”?

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Trump’s “Perverse Miracle”

E.J. Dionne is always thought-provoking, but his column yesterday about the collapse of (small-d) democratic norms at both ends of Pennsylvania Avenue–and especially his description of the President’s current twitter storm attacking Jeff Sessions–was, as the saying goes, “dead on.”

Trump’s latest perverse miracle is that he has progressives — along with everyone else who cares about the rule of law — rooting for Sessions. The attorney general is as wrong as ever on voter suppression, civil rights enforcement and immigration. But Sessions did one very important thing: He obeyed the law.

When it was clear that he would have obvious conflicts of interest in the investigation of Russian meddling in our election and its possible links to the Trump campaign, Sessions recused himself, as he was required to do.

Trump’s attacks on Sessions for that recusal are thus a naked admission that he wants the nation’s top lawyer to act illegally if that’s what it takes to protect the president and his family.

My only quibble with this analysis is the assumption– implicit in the description–that Trump understands the difference between legality and illegality. His entire career calls into question his comprehension of law as distinct from power.

To the extent that his mental processes could be called “thought,” it appears that Trump approaches law as the ability to wield authority. The central notion of the rule of law–that no one is above the law, that rules are created in conformance with certain standards of fundamental fairness, and that they apply to everyone, irrespective of wealth or status–is clearly outside his comprehension.

Even Sessions–a contemptible bigot who has spent much of his professional life opposed to rational policies if they advanced equal rights–understood his obligation to remove himself from a situation in which he had an obvious conflict of interest.

Gail Collins summed up the situation with her usual mordant humor:

Now Trump wants Sessions gone so he can replace him with an attorney general who will fire special counsel Robert Mueller. Sessions can’t do it because he recused himself from all things Russia-related.

Mueller’s probe into the Trump camp’s relationship with Russia terrifies the president, especially if it involves an investigation of Trump family finances. So obviously, we are rooting for Sessions to stay right where he is … and, um, keep persecuting immigrants, ratchet up imprisonments for nonviolent crimes and maybe go back to his old dream of imposing the death penalty on marijuana dealers.

Well, I told you this was about irony.

In just over six months, Trump has the whole country rooting for the lesser of two evils….a “perverse miracle” indeed.

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“Moral” Lawbreaking

Remember the lyrics of that old cowboy song, “Don’t Fence Me In”?

Oh give me land lots of land under starry skies above
don’t fence me in
Let me ride through the wide
open spaces that I love
don’t fence me in.

I found those “wide open spaces”–they’re between Wyoming legislators’ ears.

A bill has been introduced into the Wyoming state legislature aimed at legalizing discrimination against the gay community–but only if the discriminatory behavior is motivated by religion. House Bill 135, also called the Government Nondiscrimination Act, would legalize discrimination against the LGBTQ community, so long as the discrimination is done for religious or “moral” reasons.

According to Second Nexus (a publication with which I am unfamiliar),

Specifically, the bill would forbid the government from taking action against any “person,” including public and private corporations and entities, if that person acts on a “religious belief or moral conviction” that marriage is the union of one man and woman, or that “‘man’ and ‘woman’ mean an individual’s biological sex as objectively determined by anatomy genetics at the time of birth.”

The bill is remarkable for the breadth of organizations it allows to discriminate on the basis of religious freedom. “If passed, HB 135 would allow government employees, licensed professionals (like teachers or counselors) and private businesses to discriminate,” said Sabrina King, Policy Director at the ACLU of Wyoming. Under the bill, even hospitals and doctors would be allowed to deny routine health care services. (The bill does not exempt the provision of “emergency medical treatment necessary for treatment of an illness or injury.”)

The bill does not define “moral conviction” or “religious belief,” nor does it specify what would constitute evidence of the genuine existence of such a belief.

Think of all the other possible applications of this approach: all those libertarians who have a “moral conviction” that taxes are theft could assert that conviction as a defense to nonpayment. Mormon men who still believe in plural marriage could cite their religious beliefs when marrying several underage girls. I understand that the Santeria religion requires ritual, public animal sacrifices…Evidently, however, the only religious and moral beliefs that deserve legal protection in Wyoming are those that require marginalizing and diminishing LGBTQ people.

Even Justice Scalia, a notoriously anti-gay, pro-religion jurist, understood that allowing religious exemptions from laws of general application would constitute a direct assault on the rule of law.

I actually have a strong moral objection to seeing my tax dollars used to pay lawmakers who introduce measures that are patently unconstitutional–not to mention hateful and counterproductive–whether those public officials are in Wyoming, Indiana or the White House.

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While We Were Sleeping…

Tuesday night, Donald Trump announced his nominee for the Supreme Court seat that has been vacant since the death of Antonin Scalia. When I went to my computer yesterday morning, I found the predictable emails claiming that Judge Gorsuch is an unacceptable, far-right threat to the Republic and must be stopped (and oh, send money).

I agree that this nomination should be rejected (although I doubt it will be), but not because the Judge himself is outside the legal mainstream. He isn’t. He is certainly more conservative than I would like, and I disagree strongly with his particular approach to originalism. But accusations that he is an unacceptable ideologue are intellectually dishonest.

The real reason his nomination should be rejected is that placing him on the Supreme Court would reward an unprecedented assault on the rule of law–the refusal of the Senate to even consider President Obama’s nomination of Merrick Garland.

They blocked that nomination for entirely specious reasons, simply because they could.

I don’t think most Americans understand the implications of that action–implications that  go well beyond the makeup of the Supreme Court. In fact, the sheer effrontery of that power play requires us to consider the possibility–really, the likelihood– that we are no longer either a democracy or a republic; that during the past several years, while most Americans were comfortably detached from political activism and participation, a far-right faction of the Republican party managed to pull off a bloodless coup.

In plain sight.

Thanks to strategic gerrymandering, voters no longer choose their representatives–the representatives choose their voters. Together with successful vote suppression tactics (aided and abetted by voter apathy and citizen disengagement), the result is that this country is now run by people chosen by barely a quarter of those entitled to vote.

Thanks to manipulation of the filibuster, majority rule is no longer sufficient to pass legislation in the Senate. A minority of that body can block anything.

We are now governed by people who sneer at the rules of a constitutional system intended to constrain precisely the sort of power they now wield.

In the past, America has prided itself on adherence to the rule of law. A fundamental tenet of the rule of law is that no one is above the law–that the rules apply to everyone, governors and governed alike. Senator McConnell’s willingness to place raw power above that principle–and to gloat about it– was evidence that these radical usurpers no longer feel it necessary to give even lip service to that foundational principle.

It was the ultimate “fuck you, America. We have seized power and can do what we want.”

If Gorsuch is confirmed, so is the coup. It has nothing at all to do with his  judicial philosophy or bona fides.

I’m very much afraid that while Americans were sleeping through the warning signs, we lost our country.

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