The Supremes Are Already a Partisan Court

October 30, 2018

The violence of this election season is heart-rending, outrageous and dangerous, but so many of us have been predicting and warning about I’m at a loss for words. So, instead, I’ll turn to what I had planned for today.

Chief Justice Roberts told people at the University of Minnesota that the Supreme Court will serve “one nation,” “not one party or interest.” The judicial branch, he said, “is, must be, very different” from the political branches. He commented that the justices have a century-old tradition of shaking each other’s hands before taking the bench to hear arguments. “It’s a small thing,” Roberts said, “but it is a repeated reminder that … we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” In fact, this Court has already become very partisan, Roberts’ sugar-coating to the contrary notwithstanding.

The Constitution, by the way, calls them judges, not justices, perhaps because we don’t always get justice from judges. Judge Kavanaugh’s rant and assumption that the Clintons were at the base of Dr. Ford’s allegations reflected his deeply partisan career. Whatever happened between Judge Kavanaugh and Dr. Ford, assuming a Clinton conspiracy in the absence of facts is the very definition of prejudice. That’s become standard Republican behavior – if they don’t like the facts, they just claim a conspiracy. That alone makes it impossible to believe Democrats will get justice from Kavanaugh.

The problem goes much deeper. The Roberts Court has done everything possible to make sure that Republicans control government, regardless of the will of the people. Republican gerrymandering of legislative seats built large victories in the House of Representatives and many state legislatures while the voters were turning against them, thus reversing what the public voted for. That’s why they did it. But the Roberts Court protects their gerrymandering.

The Roberts Court eviscerated the Voting Rights Act. Witnesses testified about continued efforts to close or move polling places, put fewer polling booths in Democratic than Republican areas and strike large numbers of legitimate but likely opposition voters from the registration rolls. The enforcement provisions of the Voting Rights Act were actively blocking those efforts. The Roberts Court turned that on its head: because those provisions of the Act had been working, they weren’t necessary any more – a non sequitur any elementary school child would have understood.

The Court stripped voting rights from people who lacked government issued photo ids despite the costs to some voters, in wages and fees, to get the documents required. States could have eased those burdens except that the point was to prevent legitimate voters from voting, to make it harder for the disabled and the poor to vote, all in the absence of any evidence of relevant voter fraud. Election specialists have pointed out in vain that mailed and computer voting present much more serious problems. But state legislatures addressed neither of those problems. They were intent, instead, on stripping rights only from voters they expected to vote for the other party.

And the Court flaunted its political partisanship in cases like Citizens United, by freeing corporations to use their enormous resources in politics, while stripping political resources from unions who represent the factory workers and other regular people who are suffering now.

There’s nothing even-handed about all that. It’s a direct attempt to take the power away from the people and hand it to Republicans, who are otherwise losing the support of the public. There’s nothing legitimate about rigging elections.

Republicans warn that Democrats, if they win, might politicize the Court. That’s a joke. Republicans have already politicized the Court. If Democrats succeed in restoring the balance, that will be a big blow for a fair court. That’s why all our votes matter.

— A version of this commentary was broadcast on WAMC Northeast Report, October 30, 2018.

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Saudi Arabia

October 29, 2018

To understand what happened, we should generally begin with very open-ended questions in order to avoid excluding crucial areas of investigation. Gradually, one focuses on hypotheses. A hypothesis is not a fact. It is a basis for fact-checking.

Think back to 9/11. The very idea of Saudi complicity got short shrift. We noticed that there were Saudis in the planes that crashed into the World Trade Center, the Pentagon and the middle of Pennsylvania. But a number of Saudis were immediately allowed to leave the U.S. by air, even while other planes were grounded. The 9/11 Commission noted that charities sponsored by the Saudi government probably funded the attacks. But then the connection largely disappeared from public view and the focus turned to Osama bin Laden. That’s not a great recipe for finding out what happened. The hypothesis was too narrow at the start – Saudi Arabia, friend; Osama bin Laden, enemy.

It’s past time to investigate the assumption that Saudi Arabia was a friend. Saudi Arabia was selling us oil and we were selling them arms. But commercial transactions don’t automatically create friends. They do encourage friendly manners in order not to roil negotiations. And they create motives to avoid antagonism which might ruin commercial arrangements. But there can also be contrary motives. In spite of the benefits of the commercial arrangements between the Saudis and the U.S., were there reasons that the Saudis might have been inclined to attack and incinerate thousands of people in New York, Washington and Pennsylvania, especially if the Saudi connection could be hidden and denied?

Think about the changes in the Middle East following the 9/11 attacks. The U.S. went to war and hasn’t yet extricated itself. Our defeat of Saddam Hussein’s Iraq eliminated a large commercial competitor of the Saudis. It meant the Saudis might be able to pump much more oil without lowering its price. It could also make the Saudis seem much more important to the U.S. once Iraq had been eliminated as a major Middle Eastern player. And if America could then be convinced that Iran had become the major Middle Eastern antagonist to the U.S., then Saudi Arabia could use this country to take out a second of its major competitors. As Secretary of Defense Robert Gates told the French Foreign Minister in 2010, the Saudis want to “fight the Iranians to the last American.” Middle East politics can be very complex and deceptive.

I don’t know whether the Saudis conspired to bring that about by attacking the U.S. My point is a more limited one. It is not beyond possibility that Saudi Arabia had motives to inflict a powerful terrorist attack on this country in order to get the U.S. to do its military bidding for them. That certainly doesn’t exclude the vicious role of Osama bin Laden. It means he could have been used by the Saudis for their own purposes. And, in all likelihood, he could have been stopped by the Saudis if they had wanted to.

The current occupant of the White House told us he is not interested in exploring the Saudi impact on American security at the cost of his and the country’s commercial relations with Saudi Arabia. But once you realize the extent of the deceit and manipulation practiced by Middle Eastern dictators, why in God’s name would this country want to supply them with a single round of ammunition, much less sophisticated weapons systems, bombers and fighter airplanes, before we can be much more certain of what Saudi Arabia is and has been up to? And it also makes sense to look much more skeptically at the things we have been certain of. Is Iran, which historically had quite good relations with Israel, really the major problem, or have the Saudis been stoking enmity toward Iran in order to make Saudi Arabia the major player in the Middle East?

I don’t know. I’m not writing a text. I’m asking a question, one which lawsuits are still exploring. It hasn’t yet been satisfactorily addressed, and it should be.

— This commentary was broadcast on WAMC Northeast Report, October 23, 2018.

 

 


If you don’t show, you don’t count

October 16, 2018

If you don’t show, you don’t count.

That’s true in many ways. If you don’t show up in the WAMC fund drive, you don’t count in its survival or in the quality of programming it can carry. And you leave the station’s underwriters less confident of what their efforts can do. Showing up matters.

If you aren’t planning to show up to vote, don’t fool yourself that it won’t matter. Or you might think that you’re sending a message. But the message received isn’t necessarily the same message you think you’re sending. The way politicians count no-shows is that you and those like don’t count. If you’re not likely to show up at the polls, politicians are not likely to spend much time worrying about your problems and how to convince you they are the good guys. They won’t spend much effort trying to help people like you and they won’t waste campaign time trying to explain to you and people like you why their policies matter or the other guys’ policies don’t.

And if the pollsters don’t think you’re going to show up at the polls, that changes what they tell us is likely to happen, and it deepens the discouragement of people like you. Politics won’t help you because not enough people like you show the pollsters and the politicians that you demand to be counted.

In other words, not showing up at the polls has consequences way beyond the election. It generates a vicious cycle. Who is going to care about your generation or your part of the country or your place in the economy if you don’t vote? Voting is the coin of the realm. It’s the currency from which politicians determine what to worry about. It’s what we have to pay to get attention. The other stuff, money, only matters if it can get votes. If your vote isn’t in play, you, your friends, family and others like you are not counted. That’s part of why voting is a civic duty. It’s not just something we do for ourselves, like buying a pair of socks. It’s something we do to set the scales of politics.

Even commentators like myself pay attention. Who’s out there that can get our message? Who’s out there that may run with our message? Who’s out there that needs to be or can be reached and persuaded?

Of course, understanding the issues matters. Many of us are convinced, for example, that Trump is playing for suckers lots of the people who are supporting him for economic reasons. We’re convinced that he’s covering his failures with pittances and throwing the benefits to others. But my point goes way beyond that because even if you make a mistake, the very fact that you got to the polls changes everything. Don’t stay home.

And when you get to the polls, don’t shrug off things that can go wrong at the polls – broken machines, difficulty getting the machines to reflect your choices, long lines to vote at too few voting machines, long distances to get to the polling places you are assigned. Make an objection. Go to a judge. Go to the reporters. Or get to one of the lawyers fighting to make our system cleaner and more democratic. You make a difference by being counted.

— This commentary was scheduled for broadcast on WAMC Northeast Report, October 16, 2018.

 

 


On the Middle East

October 16, 2018

Things are happening very quickly in the Middle East. For information on the significance of developments there, I would recommend following:

Informed Comment at http://www.juancole.com

Trita Parsi at https://www.tritaparsi.com/ and most recently

Is Trump’s Iran Policy Meant to Start a War?

 

 


REGISTER NOW if you haven’t already

October 11, 2018

New York registration is still open:

  • The deadline to register online is Friday, October 12.
  • The deadline for registering to vote by mail is Friday, October 12.
  • The deadline to register to vote in person is Friday, October 12.

And see that your friends do too, especially if they are in any states where registration is still open.

For more info about registering, there is a How to Register box with multiple links when one searches for “[name of state] voter registration deadline” but there doesn’t seem to be a link to the box itself other than by using than those search terms.

And mark your calendars to vote on Nov. 6.

 


Kavanaugh on Investigating the President

October 9, 2018

Brett Kavanaugh is now supposed to be called “Justice Kavanaugh.” The Constitution refers to members of the Supreme Court as judges. Whether the term “justice” will be appropriate depends entirely on his behavior. Of that I am doubtful. I think there was no justice for Dr. Christine Blasely Ford.

There is strong evidence that Kavanaugh will solidify a majority for repealing a half century of progress on voting rights, women’s rights, gay rights, anti-discrimination law and protections against our becoming a police state.  Kavanaugh invariably parried questions about his views with recitations of prior law, showing only that Kavanaugh could explain the cases, but never denying his likely impact.

Nevertheless, Trump and his Senate sycophants would have nominated and confirmed someone equally damaging to American law. More ominous are Kavanaugh’s views about whether it is OK to investigate a sitting president.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. That suit was dismissed because it didn’t claim Clinton violated the law. It was brought, however, for purposes unrelated to the suit, namely to enable fishing expeditions on Clinton’s behavior. That’s called abuse of process.  Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. In those days Republicans were puritans.  Kavanaugh pursued Clinton with gusto.

Then, with Bush in the White House before the election of President Obama, he told an audience at Minnesota Law School, that he had changed his mind. He wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So Kavanaugh concluded that there were good reasons not to sue sitting presidents. He added that impeachment was always available. Left unsaid, however, was that to be more than a partisan political tool, impeachment must rest on investigating to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and support that country’s interests in exchange for putting Mr. Trump in the White House. The Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, Trump’s selection of a judge who doubts the legitimacy of investigating a sitting president strengthens his attacks on the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But we don’t allow people to be judge in their own cause. What we already know about the Trump campaign justifies a deeper look. And Trump’s effort to control the investigation can amount to impeachable behavior. For Democrats to take back the Court, the law and the cause of justice, they will have to defeat Kavanaugh’s senatorial supporters and elect a Congress prepared to prevent presidential abuse. In other words, the battle isn’t over and the stakes just got larger.

— This commentary was broadcast on WAMC Northeast Report, October 9, 2018. This is a revised and updated version of commentary originally prepared for broadcast on September 18, 2018, pulled because of the Kavanaugh hearings, rescheduled for September 25 but pulled again at the last minute because of new developments in the Middle East. The earlier version was posted here.

 


Supreme Court Justices and the Biblical Injunction on Gleanings

October 3, 2018

During the Jewish High Holy Days, we read from the biblical book of Leviticus where God enjoins the ancient Hebrews to leave the gleanings of their fields for the poor. I began to think about the conservative members of the current Supreme Court.

Though it’s 5000 years later, stick with me. Conservative nominees, including Judge Kavanaugh, have been telling us that decisions begin and end with the words of the law, a claim we call textualism. How can a textualist obey the ancient biblical injunction about gleanings?

Gleanings are what’s left in the fields after the harvest. Are textualists absolving us from caring for the poor, and, if not, how do they suggest we accomplish it?

Most of us don’t have gleanings – we’re not farmers. Are only farmers responsible to the poor, allowing the rest of us to take comfort from their work. That would be a “strict” textual solution but it’s not very satisfying since the Bible repeatedly stresses our obligation to the poor. Then how should we do it?

Led by Scalia, textualists often point to specific examples of how it was done when the authoritative texts were laid down. Of course, that means ancient solutions become less and less relevant. Scarcer and scarcer gleanings are left for more and more of the poor and they are harder and harder for the destitute to reach. So, the textualist philosophy gradually cancels the maxim itself. The textualists’ approach means the poor can go hungry as gleanings decline in the modern world.

An obvious solution is to identify the objectives of the biblical passage about gleanings and figure out how it might most appropriately be done. Scalia fought that idea. He railed against the possibility that the principles or values that underlie legal injunctions might be interpreted by judges. Liberals might try to figure out how to care for the poor instead of declaring the injunction unworkable. In other cases, liberals might try to assure accurate trial results, not merely obedience to traditional formalities. The defendant lost but had a chance so it’s over.

The late Justice Blackmun once cringed when a father beat his son so badly that the boy’s brain was destroyed and he became almost literally a vegetable. “Poor Joshua” he wrote and was lambasted for letting his sympathy affect his judgment. You may remember that Justice Sotomayor was subjected to the same attack. Sympathy, in the textualists’ view, negates legality. Since when, however, should one be ashamed of sympathy for the unfortunate? Since when is justice defined by not caring about the impact of the rules we create on the people who have to live with them?

Textualism camouflages abuses written into the legal system by justices without principles, as if “the law,” and not the judges, were doing all the damage. It’s time to disqualify judges for lack of empathy. Does the law have no gleanings to offer? No principles of caring and just behavior with which to help fill in the gaps and the changes in legal meanings that take place over time? I have never believed that the written law is responsible for the harm done by judges who mangle it with closed hearts and eyes blind to reality.

Brett Kavanaugh, Trump’s latest nominee, continues the charade of denying that their cramped sense of justice is crucial to the decisions they make. Regardless of what the FBI finds about what happened to Dr. Ford, Kavanaugh has not justified our confidence by evasively blaming everything on his reading of past decisions.

 This commentary was broadcast on WAMC Northeast Report, September 25, 2018.

 

 


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