Tag Archives: Texas

Why Judges Matter

I was astonished when I read this report in The Washington Post, mostly because the judge was so obviously, incredibly wrong about both the law and the facts.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

A first-year law student would know that “religious freedom” does not give citizens the right to harm others. I used to explain to my students that your sincere belief that God wants you to sacrifice your newborn does not trump laws prohibiting you from doing so.  As “originalist” Justice Scalia wrote in Employment Division, Department of Human Resources of Oregon v. Smith, general laws prohibiting drug use take precedence over the plaintiffs’ right to participate in tribal religious observances that included smoking peyote.  

Smoking peyote during a religious ceremony didn’t harm anyone. A requirement that military personnel be vaccinated  protects others against a very dangerous disease. It would clearly be constitutional even if vaccine denial posed a genuine religious concern.

But it doesn’t.

The fact is that no religion  (with the possible exception of Jehovah’s Witnesses and Christian Scientists, who don’t believe in any medical science) teaches vaccine denial. If I simply invent a “religious” precept that is not grounded in the actual doctrine of my faith, I can hardly demand that American courts respect my “religious” beliefs.

I was sufficiently incensed by this ridiculous ruling that I decided to Google the judge, who–unsurprisingly–is a high-profile member of the Federalist Society.

Here’s what the Texas Tribune had to say about him when he ruled that Obamacare was unconstitutional. (Remember that?)

In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

The Obamacare decision, which was reversed by higher courts, was criticized by both conservative and liberal legal scholars as misguided and politically motivated.

The conservative legal scholar Jonathan Adler and the liberal legal scholar Abbe Gluck came together to write in The New York Times that the decision “makes a mockery of the rule of law and basic principles of democracy.

O’Connor is routinely described as a reactionary, and his vaccine decision is just the most recent evidence that he ignores legal precedents incompatible with his far-right politics. In 2015, he held a portion of the federal Gun Control Act of 1968 unconstitutional and enjoined the federal government’s definition of marriage in the Family and Medical Leave Act of 1993.

In 2016, as previously noted, he struck down an Obama administration rule requiring that transgender students be allowed to use the bathroom corresponding to their gender identity. In 2018, he ruled that the Indian Child Welfare Act was unconstitutional. That 1978 law was passed in response to concerns over the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. It gave tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.

It goes on.

O’Connor’s rulings are frequently reversed, but the damage done goes far beyond the time and money wasted on appeals. The initial publicity garnered by his off-the-wall rulings gives an aura of legitimacy to arguments that have no legitimacy, and that are inconsistent with settled constitutional precedents.

Thanks to this decision, people will die. Unnecessarily.

Judges matter.

I Know It’s Tacky To Laugh…

I’ve seen several references to this…event…in Texas, but I think Juanita Jean–she of the World’s Most Dangerous Beauty Shop, Inc.–has the best description. She titles it “I Love Yew, Texas.”

Well see, the QAnon people are coming to Dallas because there’s gonna be a slamdinger of a show!

Some staunch believers of QAnon think that JFK Jr is in fact alive and well, and plans to make a return to public service and announce a tilt at the White House as vice president on the ticket of Mr Trump, who has not yet announced a 2024 run but is widely considered by many to be the favourite to win the Republican nomination if he does so.

And it’s not just JFK, Jr – it’s the entire Kennedy clan showing up. However, it’s not clear if it’s all of them or just the dead ones. Word is that they are meeting on the grassy knoll, except they spelled it grassy noel, which in Texas translates to Christmas in the wheat fields.

Her best line, though, invokes Indiana’s former embarrassing Governor.

And if you’re wondering who comes back from the dead to be vice president, you need only look as far as Mike Pence. So there ya are.

Actually, I’ve been mulling over the fact that, in January, Mike Pence actually did something admirable–he refused to take part in the coup attempt. He followed the law, and refused to refuse to certify ballots. (Granted, when it comes to Mike Pence, the bar for “admirable” is very low…) As long as I’ve known him (and that is ever since we were both Republican candidates for Congress in the 1980s, so a long time) it is the only admirable thing I’ve ever seen him do–and the irony is that in today’s GOP, doing the right thing and respecting the rule of law has probably been the kiss of death to his presidential ambitions. (Not that I think those ambitions were very realistic in any event, but then, who would have  thought anyone would vote for the pussy-grabber…?)

Democrats are constantly being criticized for “elitism,” for “looking down on” unsophisticated/uneducated /rural “real Americans.” I think this is largely a bum rap: I don’t know any liberals who sneer at people simply because they lack a degree or live in a rural  area or even because they vote Republican. I do know people (and I’ll admit to being one of them) who shake our heads and perhaps even snicker at folks who look for Hillary Clinton’s child trafficking headquarters in the (non-existent) basement of a pizza parlor, or who blame California wildfires on Jewish space lasers, or who ingest horse dewormer rather than listening to their doctors and getting vaccinated…Admittedly, the people who turn up at protests with grossly misspelled signs also get a chuckle .

And forgive me if I fail to take seriously the QAnon lunatics who traveled to the “grassy noel” to await the reincarnation or whatever of JFK, Jr.

Let’s be candid: Today’s GOP is profoundly unserious about governing. Its base is filled with crackpots of various kinds, and the party’s elected officials and political leaders are virtually all spineless panderers to those crackpots. Thanks to gerrymandering, vote suppression and weaponizing of the filibuster, they’ve managed to prevent Congress from engaging in anything resembling actual governing.

If we couldn’t laugh, we’d cry.

 

 

 

Texas, Education And The Holocaust

It sounded like snark.

When the reports first emerged that a Texas school administrator was advising schools to teach “both sides” of the Holocaust, I assumed that some late-night comedian was making a point. After all, what are the arguments for genocide? But I was wrong. Texas–where the governor insists that life-saving vaccines are optional–wants schoolchildren to have the benefit of “both sides” of the argument whether it’s okay to murder six million people.

The Guardian, among other news sources, has the story.

A Texas school district official told educators if they kept books about the Holocaust in their classrooms, they would have to also offer “opposing” viewpoints in order to comply with a new state law.

In an audio clip obtained by NBC News, Gina Peddy, the executive director of curriculum and instruction for Carroll independent school district in Southlake, offered the guidance to teachers during a training on which books teachers can keep in classroom libraries.

The directive came as part of a training session during which a fourth-grade teacher was reprimanded for having a book on anti-racism in her class.

It followed the passage of a new Texas law that requires teachers who discuss “widely debated and currently controversial issues of public policy or social affairs” to examine the issues from diverse viewpoints without giving “deference to any one perspective”.

At the training, Peddy advised teachers to remember the requirements of the new law, according to the audio. “And make sure that if you have a book on the Holocaust,” she said, “that you have one that has an opposing, that has other perspectives,” which prompted a teacher to ask how one could oppose the Holocaust.

Given that this is Texas, one distinct possibility is that Gina Peddy has no idea what the holocaust was. Teaching accurate history–okay, history–is evidently not a priority for Texas school systems. After all, this is a state that celebrates a fictitious version of the Alamo, a state that passed a law banning the teaching of Critical Race Theory, despite the fact that it wasn’t being taught and despite considerable evidence that the legislators and governors involved in the frenzy couldn’t have defined it if their lives depended on it.

If Texas’ governor and legislature weren’t so determined to make themselves ridiculous–not to mention dangerous– it would be unfair to pick on the state. After all, twenty-two states have passed laws prohibiting their public schools from discussing “uncomfortable” elements of the nation’s historical bigotries.

The directive to “teach the other side” joins the equally asinine efforts to “teach the controversy” over evolution. Religious zealots who denied science created the “controversy” and then used it to justify bringing religious dogma into science classrooms. People desperate to protect their children from the less glorious aspects of American history seized on a theory being pursued by a subset of legal scholars–creating the “controversy”– and are using it as blunt instrument to defend the indefensible.

In fact, Texas’ current embarrassment is just the latest iteration of the persistent American divide between people who want the public schools to educate and those who want them to indoctrinate–between those who want to limit the nation’s schools to the inculcation of skills needed to participate in the economy, and those who want educators to encourage intellectual curiosity and growth.

The order to “balance” condemnation of the holocaust with–what? Mien Kampf?–was entirely foreseeable. After all, the attacks on school boards (in all fairness, not just in Texas but around the country) have come almost exclusively from parents and others demanding that history be whitewashed (pun intended), turned into soothing stories that allow Americans to brag about “exceptionalism” and who believe political rhetoric about the country’s past, unblemished “greatness.”

Unfortunately, their preferred stories aren’t history, and if they are taught in place of history, they’ll ensure that we keep making the mistakes that have kept us from greatness in the past.

 

 

 

 

A Sanity Backlash?

In a recent column for the Washington Post, Jennifer Rubin suggests that Texas Republicans may be doing something Democrats have been unable to do: they may be turning the Lone Star State blue.

Rubin says the GOP has alienated so many voters outside its hardcore base, it has  put the state in play in 2022, when the state will elect a governor in addition to the usual congressional  and local contests.

A new Quinnipiac poll suggests Republicans’ radicalism has put them at odds with a majority of Texas voters. In the wake of the Texas law offering bounties to “turn in” those seeking an abortion after six weeks of pregnancy, with no exceptions for rape or incest, the poll reports that 77 percent of state residents say abortion should be legal in cases of rape or incest, including 66 percent of Republicans. Some 72 percent of Texans do not want the law enforced, and 60 percent want to keep Roe v. Wade in place.

Even on a quintessentially Texan issue such as guns, voters are not in sync with MAGA politicians. The pollsters found: “Roughly two-thirds (67 percent) of voters, including 58 percent of gun owners, say allowing anyone 21 years of age or older to carry handguns without a license or training makes Texas less safe, while 26 percent say it makes Texas safer. Half of voters (50 percent) say it’s too easy to carry a handgun in Texas, while 44 percent say it’s about right, and 4 percent say it’s too difficult.”

When it comes to the GOP’s incomprehensible posturing on the pandemic, the results are equally negative for Abbott and his hard-core supporters in the state legislature: polling shows that Texas voters are much closer to the positions taken by President Biden than to Abbott. Texans opine  47 – 38 percent that Abbott is hurting rather than helping efforts to slow the spread of COVID–and majorities support vaccine mandates.

Those numbers evidently persuaded Matthew Dowd, who was a former senior adviser to President George W. Bush, to run for lieutenant governor–as a Democrat.

Dowd is betting that Texans want something other than pandering to the MAGA base. “The Texas Republican politicians are completely out of step with Texas values like integrity and community and no longer govern with common sense, common decency or for the common good,” he told me on Saturday. “They put their ‘me’ over our ‘we.’ ”

If Rubin is right–if Democrats can win Texas despite the frantic gerrymandering and the  various efforts to make it harder for urban and suburban voters to cast a ballot, we may finally be seeing the results of a political strategy that has always seemed short-sighted to me: relying almost entirely on turning out the GOP base.

In order to “motivate” that increasingly rabid base, the GOP has increased its appeals to racism, conspiracy theories and general fear-mongering. Meanwhile, the percentage of Americans who claim the Republican label continues to shrink. Earlier this year, Gallup reported that–even when they included independents who “lean toward the GOP,” they could come up with only 40%, compared with 49% of Democrats and independents leaning  Democratic.

It’s worth noting, too, that not all of those Republicans and Republican “leaners” are part of the base. I personally know a number of people who still claim the label, but report being repelled by the current  iteration of a party that is anything but the adult, conservative political party they originally joined.

The problem with relying on a shrinking base is similar to the problem faced by drug addicts: you need bigger “hits” to produce the same high. But the crazier and meaner the party gets, the greater  the number of voters it turns off.

I’m trying not to get my hopes up, but there does seem to be evidence that we’ve rounded a corner–that the GOP’s manifest preference for acting out over governing has finally gone too far for the majority of citizens who will find their way to the polls in upcoming elections.

Whatever their policy differences, Democrats, Independents and the few remaining sane Republicans can all come together under that well-worn slogan: It’s time for a change.

Texas Is About Much More Than Abortion

The angry blowback against Texas’ assault on reproductive rights is eminently justifiable–but as I explained previously, most of the criticism of the law misses the even more ominous threat it poses.

In her newsletter last Saturday, Heather Cox Richardson brought a historian’s perspective to that more ominous reality. She traced the nation’s legal trajectory after WW II, and the resistance to efforts by FDR to use government to regulate business and provide a basic social safety net. And as she reminded readers, racist Southern Democrats furiously fought government’s efforts to ensure racial equality. 

After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. They protected the right of married couples to use contraception in 1965. They legalized interracial marriage in 1967. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.

The Supreme Court used  the Fourteenth Amendment to apply the Bill of Rights to state governments as well as to the federal government; among other things, that kept state and local government officials from denying certain individuals the same rights enjoyed by other citizens

From the beginning, there was a backlash against the New Deal government by businessmen who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding an end to the active government and a return to the world of the 1920s, where businessmen could do as they wished, families and churches managed social welfare, and private interests profited from infrastructure projects. They gained little traction. The vast majority of Americans liked the new system.

But the expansion of civil rights under the Warren Court was a whole new kettle of fish. Opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its framers and that the government can do nothing that is not explicitly written in that 1787 document.

This is the foundation for today’s “originalists” on the court. They are trying to erase the era of legislation and legal decisions that constructed our modern nation. If the government is as limited as they say, it cannot regulate business. It cannot provide a social safety net or promote infrastructure, both things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses.

It cannot protect the rights of minorities or women.

The Court’s refusal to enjoin the Texas law is a truly terrifying omen. If the law is ultimately upheld, the precedent would threaten far more than a woman’s right to control her own reproduction. As Richardson notes, such a result would “send authority for civil rights back to the states to wither or thrive as different legislatures see fit…there is no reason that this mechanism couldn’t be used to undermine much of the civil rights legislation of the post–World War II years.”

In 1957, Republican President Dwight Eisenhower used the federal government to protect the constitutional rights of the Little Rock Nine from the white vigilantes who wanted to keep them second-class citizens. In 2021, the Supreme Court has handed power back to the vigilantes.

I am old enough to remember the billboards demanding “Impeach Earl Warren.” The rage of rightwing White Nationalists at decisions that they (correctly) believed would curtail their ability to deny equal rights to Blacks and other disfavored minorities hasn’t abated. Much of it went underground: into the establishment of “think tanks” devoted to justifications of “originalism”and rollbacks of federal regulations, the (now successful) effort to pack the federal courts with ideologues and capture the big prize: the Supreme Court.

Logically, under the last fifty years of legal precedent, Texas’ effort to “outsource” its abortion ban to vigilantes–its effort to avoid “state action”– should fail. The state’s legislature created the law. Enforcement of its punitive and dangerous scheme requires participation by the state’s judicial system. 

What too few of the people arguing for and against this assault seem to recognize is what is truly at stake right now: the entire edifice of current Constitutional law, which rests on the premise that the Bill of Rights applies to all levels of government–that it sets a civil liberties floor below which states may not go.

This fight is about more than Roe v. Wade.