Judges And Politics

American government operates through Separation of Powers–what we all (hopefully) learned in school is the division of governance into three branches: the Executive, the Legislative, and the Judicial.

The basic idea was that the legislature would pass laws, the Executive branch would enforce them, and the Judicial branch would ensure that both the laws and the methods of their enforcement were consistent with the Constitution.

It has always been more complicated than that, of course, but it is important to keep that basic framework in mind–especially the fundamental role of the judiciary. That role requires that judges be insulated from partisan politics to the extent possible–that they be free to decide cases on their merits. They may err, but the goal is to put on the bench people who will put aside their personal policy preferences and “call ’em like they (honestly) see ’em.” Even today, most do.

Partisans have always grumbled about the judicial branch. When a court strikes down a politician’s pet legislation, accusations of “judicial activism” are never far behind, and efforts to place partisan ideologues on the bench are nothing new. 

What is new is the degree to which partisans and autocrats are acting to politicize and capture the courts–and not just in the U.S.

In Israel, Netanyahu’s far-right administration has stirred up a hornet’s nest by advancing measures that would allow that administration to control the courts. In Hungary, Victor Orban has tightened his control over that country’s Courts.There are other examples, and they all threaten democratic accountability.

America’s Founders tried to insulate the federal judiciary from political pressure  by granting judges lifetime tenure.(People didn’t live as long back them, and thoughtful critics suggest that terms limited to 18 or so years could achieve the same goal.) Many states also employ judicial selection systems meant to minimize the influence of partisanship and politics –requiring local bar associations to evaluate nominees, and creating bipartisan judicial nominating commissions. These mechanisms do not–cannot–completely remove partisan politics from the process, but they certainly help.

The effort to minimize partisanship on the bench is consistent with the Founders’ effort to create a judicial system meant to check misbehavior by the other two branches. Both the legislative and executive branches were designed to answer to the voters; the judiciary was intended to answer to the Constitution and to keep the other branches tethered to the rule of law. 

Over the years, political activists and ideologues have succeeded in eroding that fundamental distinction between the branches by the simple expedient of judicial elections. 

When judges are elected, partisanship is inevitable. The current campaign for Wisconsin’s Supreme Court should be sufficient to erase any doubt. The candidates  have made no bones about their contending political ideologies:

Officially, the race is nonpartisan, but one candidate is closely aligned with Republicans and the other with Democrats. The state parties and dark-money groups are the biggest spenders in the race.
Milwaukee County Judge Janet Protasiewicz shored up Democratic support early in the race and easily rolled through Tuesday’s primary. She has said she backs abortion rights and condemned the election maps as “rigged.”

Conservatives were more bitterly divided, leading to a contentious fight for the other spot on the general election ballot. Emerging from the primary was Daniel Kelly, who was appointed to the state Supreme Court in 2016 by Gov. Scott Walker (R). While campaigning, Kelly — who lost his seat in a 2020 election — has touted his rulings to allow concealed guns on city buses and end the coronavirus lockdown imposed by Gov. Tony Evers (D).

Given how blatantly all four of the run-off candidates trumpeted their very different approaches to the law, it was ironic that conservative Kelly accused liberal Protasiewicz’s of  promising to “set aside our law and our Constitution whenever they conflict with her personal values,” while characterizing  his own ideological preferences as fidelity to the Constitution.

Protasiewicz has rebuffed such attacks, saying she isn’t prejudging cases but letting voters know her values. She has criticized Kelly for his rulings and the endorsement he received in 2020 from Donald Trump.

My interpretations of the Constitution and Bill of Rights are more in line with those of Protasiewicz, so–from an “outcomes” standpoint– I found the runoff election results comforting: (Protasiewicz had 46 percent of the vote, Kelly had 24 percent, and Protasiewicz won areas of the state that are normally heavily Republican.) 

That said, given current levels of American civic literacy and Constitutional knowledge, voters aren’t deciding which judicial candidate’s approach to the law is most consistent with the Constitution. Instead, they are encouraging the judiciary to identify with partisans in the other two branches–to choose a side.

If you don’t think that’s dangerous, think about Orban and Netanyahu.


Justice, Justice..

Like many of you, I get the almost-daily newsletter from Heather Cox Richardson, who reliably reports on current events and provides valuable historical context illuminating them.

Last week, Richardson made a “catch” that I had missed–and it provided further evidence of the corruption that was (along with monumental incompetence) a hallmark of the Trump Administration.

Evidently, during a Senate hearing and in response to a question from Senator Sheldon Whitehouse, FBI director Christopher Wray  shed light on the Administration’s short-circuiting of the background investigation into then–Supreme Court nominee Brett Kavanaugh. (Note: I’m not sure when that hearing occurred–it may have been one held a year or so ago.) According to that testimony, more than 4500 tips about Kavanaugh that were received by an FBI hotline were “separated out” and transmitted to the White House without investigation. The FBI subsequently interviewed only people designated by the White House.

The agency completed the supplemental background check triggered by the accusations of sexual assault in exactly four days–and FBI agents did not interview either Kavanaugh or Christine Blasely Ford, the woman who publicly testified against him, or the other women who came forward to lodge similar accusations–Deborah Ramirez, and Julie Swetnick. 

The lack of clear vetting extended far beyond the allegations of personal sexual misconduct. As the Leadership Conference on Civil and Human Rights pointed out in a letter objecting to his elevation to the Court, Kavanaugh’s judicial conduct was a matter of equal concern.

Judge Kavanaugh’s 12-year record on the U.S. Court of Appeals for the D.C. Circuit, as well as his known writings, speeches, and legal career, demonstrate that if he were confirmed to the Supreme Court, he would be the fifth and decisive vote to undermine many of our core rights and legal protections.  In case after case, he has ruled against individuals and the environment in favor of corporations, the wealthy, and the powerful.  He has advanced extreme legal theories to overturn longstanding precedent to diminish the power of federal agencies to help people.  And he has demonstrated an expansive view of presidential power that includes his belief that presidents should not be subject to civil suits or criminal investigations while in office despite what misconduct may have occurred.  Many of our organizations opposed Judge Kavanaugh’s nomination to the D.C. Circuit,[1] and our fears and concerns have been realized.  Judge Kavanaugh has not served as a neutral and fair-minded jurist.  He has served as a conservative ideologue who lacks the impartiality and independence necessary to sit on the highest court in the land.

The letter went on to document the cases in which Kavanaugh had displayed his lack of “impartiality and independence,” his lack of commitment to racial justice, and his “extreme and disturbing views about presidential power.” The letter was signed by 180 organizations.

Then there was the matter of the 15 ethics complaints filed against Kavanaugh, alleging judicial misconduct during his tenure as a lower-court judge. Once he was elevated to the Supreme Court, proceedings investigating those complaints were dismissed.  Dismisal was because the ethics rule provides that proceedings may be concluded if the judge charged with conducting them finds that “action on the complaint is no longer necessary because of intervening events.” The intervening event in Judge Kavanaugh’s case was his appointment to the Supreme Court. “That is because the Act covers complaints only about circuit judges, district judges, bankruptcy judges, magistrate judges, and judges of some special courts.”

And so here we are… 

That this very flawed, partisan individual is on the Supreme Court is certainly troubling, but there have been other Justices whose flaws have been widely recognized. (Alito was an example well before Boggs.) What is far more troubling was the corrupt process that led to Kavanaugh’s confirmation. It’s one thing to find, after the fact, that a nominee lacks hoped-for judicial temperament or intellect. (The allegations against Clarence Thomas, for example, were fully aired, and most Americans only subsequently realized that the Senate had believed the wrong testimony.) Refusal to conduct a thorough vetting is a far more serious matter, and it’s pretty clear that short-circuiting a full and fair investigation was a deliberate–and successful– act of the Trump Administration.

I tend to harp on the importance of institutions, because the health of the American polity ultimately rests upon the integrity and ongoing utility of those institutions. Separation of Powers is a foundational element of our system of government, and when one branch can effectively control another by ignoring institutional safeguards in order to place favored individuals in positions of power, that foundational element is violated.

Elevating Brett Kavanaugh and denying Merrick Garland a hearing were two steps in the Right’s determined campaign to eliminate individual liberties and move America toward autocracy.

They have to be stopped.


Approaching A Major Crisis

Donald Trump is refusing to produce documents demanded–subpoenaed–by Congress, and has instructed members of his administration not to comply with orders to testify to Congressional committees.

If this isn’t a constitutional crisis, the term has no meaning.

As several sources have reminded us, Article 3 of the Articles of Impeachment against Nixon asserted that the President

… has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

As Josh Marshall of Talking Points Memo reports,

The White House isn’t doing the standard tussling with Congress about oversight: some stonewalling, some negotiation, taking some questions of privilege to court. It’s more accurately characterized as massive resistance. The Congress has a constitutionally mandated responsibility to oversee the executive branch. They are flatly refusing to comply with ordinary document production and testimonial requests across the board. It’s not a difference of degree but of kind. In itself it is an impeachment worthy refusal to follow the constitutionally mandated framework of American government. It’s up to Democrats to make this clear.

Here’s the very simple bottom line: If a President can refuse to comply with the demands of a Congressional oversight committee–part of a co-equal branch of government– America no longer has checks and balances or the rule of law.

Checks and balances and the rule of law are the very foundation of the American constitution. Governmental legitimacy is defined as adherence to that government’s legal framework–in our case, the constitution. Trump’s defiance is thus evidence of his administration’s lack of legitimacy.

If the Senate, under the control of Mitch McConnell (aka the most evil man in America), fails to stand up for the prerogatives of the Congress, history–assuming we survive to have a history–will brand them traitors. Their first duty is to protect the Constitution and the Separation of Powers; the crisis Trump is precipitating requires them to stop cowering in fear of Trump’s ignorant, rabid base and discharge their obligation to protect America.

(Speaking of ignorance, Trump has said he’ll fight any effort to impeach him by taking the matter to his buddies on the Supreme Court–once again demonstrating his utter cluelessness about constitutional processes and American governance.)

It’s hard to argue with Josh Marshall’s analysis of the current impasse.

But as much as anything else this is a political conflict: how to bring to heel a lawless President. The big error I see so far is that these joustings are being treated as legitimate legal processes which must be allowed to work their way through conventional processes and the courts. That’s not right and it gives the President free rein to try to run out the clock on any sort of oversight. Democrats need to find a language for the political debate that makes clear these are not tedious legal processes which will run their course. They are active cover-ups and law breaking, ones that confirm the President’s bad acting status and add to his and his top advisors legal vulnerability.

There is no hope for Trump; the man is aggressively stupid, proudly ignorant and quite obviously mentally ill (and those are his better qualities!) He is a perfect example of the Dunning-Kruger Effect.

The only question that still remains open is: how many Republican Senators are genuine patriots and how many are self-serving cowards? We’re about to find out.


When You’re Right, You’re Right

When folks on the Right are right, it’s worth noting–and applauding.

A few weeks ago, when some polls were showing a dead-heat Presidential contest, an article in the Weekly Standard titled “Donald Trump Cannot Save Our Republic” began

With the election now a virtual dead heat, conservative opponents to Donald Trump have never faced greater pressure to support him. Capitulation is needed, it is said, because the survival of the republic is at stake. If we allow Hillary Clinton to win the presidency, our constitutional system of government will be destroyed forevermore. Thus, we have no choice but to forbear.

This rhetoric is well-designed to prey upon the fears of conservatives who loathe Hillary Clinton, but it is not the language of American republicanism. Indeed, the fact that it has gained such traction on the right is a signal that many conservatives themselves have lost touch with the traditions of our constitutional system.

Put simply: This argument places the presidency at the center of American political life, which is a progressive innovation popularized by Woodrow Wilson and Theodore Roosevelt. The Framers rejected this implicitly, for most of their attention was spent perfecting the legislative branch, which was to be the primary repository of political power, as well as the tribune of the people.

The article argued that support for Trump would not only be implicit support for the (relatively) new centrality of the Presidency, it would allow conservatives and others to  continue ignoring the real problem: Congress.

The ailment, simply put, is this: Congress is a basket case. It refuses to exercise many of its sovereign responsibilities under the Constitution. Many of the tasks it retains it executes badly. Worst of all, the legislature itself has ceded these authorities. They were not taken from it, but granted, happily, of its own volition. A return to true constitutional government does not require us to elect a kingly president who vaguely sympathizes with the platform of the Republican party, but insisting that the legislature reconstitute itself under the Framers’ original vision.

I do not necessarily agree with every point raised in the article, but its major thrust is clearly on target. I’ve written previously about the consequences of Americans’ evident–and troubling–belief that every four years we elect a monarch, who will either keep the promises made on the campaign trail, or earn public ire for failing to do so.

That drastically inaccurate view of the executive ignores Constitutional checks and balances, blames whoever holds the office of President for doing or not doing things over which he (or she) has influence but ultimately no control, and–worse– lets Congress off the hook. That view also explains why turnout falls off precipitously in off-year elections.

Voters who don’t recognize the importance of the legislative function fail to pay attention to the qualifications and temperament–let alone the work ethic–of those they send to Congress. The result is a legislature filled with partisan ideologues, empty suits (and too often, idiots) who are woefully unprepared to carry their share of the governing load.

As the article notes, “Reform of the legislature begins with electing to it a majority that is actually interested in reform.” To which I would add, “and actually interested in governing.”

The Presidency is important. In this election,which offers a choice between a well-qualified politician who operates–in P.J. O’Rourke’s memorable phrase–within normal paramagnets, and a dangerously autocratic ignoramus, it is supremely important. But we ignore our choices for the Senate and House at the nation’s peril.


I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.