There’s No Alternative To We The People

In response to Monday’s post– in which I decried our current American tribalism and wondered whether we can breathe new life into e pluribus unum– a regular commenter, Tom Lund, wrote the following:

While we will be definitely in uncharted territory in many ways this could end up being a wonderful thing for this country if we can stay true to our principles and shrug off the division that is been forced on us and that which is already existed and reknit ourselves.  Tons of questions still remain and the cohesion that will likely be necessary to knit together a game plan will work and restore the social and political equilibrium of this country is a big unknown right now.  Hopefully, we can find a way out of this downward spiral but we’re the ones that are going to have to do it and do it by ourselves.

He is exactly right: we are the ones who must do it.

For quite some time, it has been possible for Americans to depend upon the courts to correct miscarriages of justice. Lawsuits have been our default mechanism for reminding government officials and others wielding power that the Constitution and the rule of law applies to them. Given the judicial appointments being made by the Trump Administration, it isn’t hyperbole to observe that the courts are unlikely to serve that important function for the foreseeable future.

To the extent that our reliance on the courts allowed us to “get lazy”–to forego exercising our civic “muscles”–that permissiveness is over.

Keith Whittington is a constitutional scholar who has argued that the Constitution operates in two ways: first, as a binding set of rules that can be interpreted and enforced by the courts, and second, through the political process, as a guide to and constraint upon political actors, who formulate “authoritative constitutional requirements”–who “construct” the Constitution– as they make public policy.

Another eminent Constitutional scholar has extended Whittington’s observation. In “Taking the Constitution Away from the Courts,” Mark Tushnet challenged our American tradition of judicial review–and even judicial supremacy. As the book’s blurb puts it,  

Many people, particularly liberals, have “warm and fuzzy” feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as “We the People of the United States.” The Constitution belongs to us collectively, as we act in political dialogue with each other–whether in the street, in the voting booth, or in the legislature as representatives of others.

We may agree or not with Tushnet’s argument, but given the reality of today’s political environment, his analysis reinforces Tom Lund’s conclusion: we’re the ones that are going to have to do it, and given the transformation of the judiciary that is currently underway–a transformation of the courts from protectors of the people to protectors of the plutocracy– we are going to have to do it by ourselves.


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.