Corruption Overwhelming America

August 20, 2019

This commentary was drafted in anger when I learned that pig farmers are refusing to allow inspections to look for the microbes that are killing people. Upton Sinclair’s The Jungle exposed the filth of the meat-packing industry in 1906 and led directly to the Pure Food and Drug Act and the creation of the FDA, the Food and Drug Administration. Now they want to undo a century of relatively clean food by claiming regulation is bad – yes, particularly bad for filth in the food industry.

This country’s reputation for honesty and responsibility long gave us a huge market edge. American institutions check on errors and misbehavior. That drove our legal and corporate culture. Now we’re inviting the world to ditch its confidence in us, and inviting each other to be cynical about business and political claims, threatening our economic power and democratic system.

Everyone has a reason why you can’t check on them. China is more honest about their meat than our pig farmers. Police refuse to allow information to be made public about their behavior because the people might realize who is trustworthy and who isn’t. The President denies Congress’ authority to get information from him. Even George Washington turned papers over. Trump is the first President since Richard Nixon to refuse Congress his tax information, lest the American people get an honest look at his economic behavior, bankruptcies and unreliability.

Republicans lump everything under the title of regulation and, making no distinction, claim all regulation is bad. Regulation is a problem because they might have to take responsibility for the poisons they want to emit, the toxins and dangerous bugs in the food they want to sell us, and the financial shenanigans they use to fleece us of our money. No one has the right to poison or injure anyone else. That’s irresponsible at best, legally tortious and probably criminal.

The so-called Supreme Court authorizes corporations to force us into arbitration with arbitrators the corporations choose so that the arbitrators are only beholden to the corporations, and anyway, they have no power to cure corporate misbehavior. Heaven forbid corporations should have to own up for their sins. Why should they – no one else does.

We have fussed about the bribery rampant in other countries because it prevents law from working to produce decent and proper behavior that justifies reliance. Preventing investigations is almost as bad. We’re now allowing corporate and political America to behave like the Mafia where there is only accountability for hurting each other – the purpose of the organization is to fleece the public, impose protection rackets, and, where people object, kill. In this complex world it is increasingly difficult to protect yourself from dishonest business.

But the President does it – shouldn’t we follow his example? He failed to fire Mueller but he fires everyone else who might insist on honesty and accountability. Now he’s now moving federal agencies halfway across the country to encourage the staff to quit rather than relocate. What a step forward.

There’s a stench in the White House but who’s left to complain? Too many corporate officers can no longer be watched because Trump destroyed the civil service. Who’s to complain about what they do?

 

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John Paul Stevens

July 23, 2019

I lot of us will miss Justice Stevens. As a judge on the Seventh Circuit Court of Appeals, based in Chicago, Stevens had a reputation as the sharpest mind on the Court. President Ford’s nomination of Stevens for the Supreme Court was widely hailed as an excellent appointment.

Stevens was always sensitive to the consequences of his decisions on those who had the least resources to deal with it. Dissenting in an antitrust case, Stevens wrote:

The transparent policy concern that drives the decision is the interest in protecting antitrust defendants–who in this case are some of the wealthiest corporations in our economy–from the burdens of pretrial discovery.[1]

As he gradually became beloved by liberals, he kept repeating that the Court had changed around him but he himself had not changed. One thing had changed. Stevens learned what was actually happening in the real world outside the Supreme Court building. He realized that the criminal justice system was not nearly as accurate as one would want when the question is whether to put someone to death, turning him from a supporter to an opponent of the death penalty.[2] He came to understand the role that affirmative action played in overcoming discrimination against people with black and brown skins. In a 1995 case about giving black contractors a leg up in government contracting, Stevens wrote: “The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat.”[3]

After his appointment he refused to discuss politics and followed neither party’s views consistently. In Bush v. Gore, he voted against the Court’s decision to stop the recount, the centuries old solution to disputed elections, writing that: 

the Florida court’s ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.[4] 

But in a case from Indiana, he upheld identification requirements that, as Justice Souter detailed in dissent, clearly burdened the poor, the aged and the infirm.[5] Stevens later realized that the fear of fraud was made up, described it as “a fairly unfortunate decision,” and described Souter’s dissent as “one of his best opinions.”[6] 

In gerrymandering cases, Stevens became an advocate for “the symmetry standard, a measure social scientists use to assess partisan bias, which is undoubtedly ‘a reliable standard’ for measuring a ‘burden . . . on … representative rights’ ….”[7]

He was not perfect. I represented a group of political scientists as friends of the Court in a 1986 case. There was an issue that plaintiffs’ attorney and I both thought such transparent nonsense that we didn’t bother to brief it. Sure enough Stevens fell for it, though the majority of the Court went our way. It wasn’t Stevens’ last mistake but it proved he was human.

I’ve always felt that the term “Justice” in the title of members of the Supreme Court is a term that needs to be earned. During one argument in the Supreme Court, a woman lawyer kept referring to William Rehnquist, who was then the Chief, as Judge, and Rehnquist kept lambasting her for it. Stevens interrupted, “It’s all right counsellor; the Constitution makes the same mistake!” It does, indeed, in Art. III, sec. 1.

Stevens was not only smart. He was a judge; not a partisan. He cared about the effect of his decisions and showed a willingness to learn. Stevens clearly earned the term Justice.


[2] Linda Greenhouse, Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99, https://www.nytimes.com/2019/07/16/us/john-paul-stevens-dead.html

[3] Adarand Constructors v. Pena, 515 U.S. 200, 244-45 (1995). He continued: “It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.”

[4] Bush v. Gore, 531 U.S. 1046, 1048 (2000) (Stevens, j., dissenting)

[5] Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 211-12 (2008) (Souter, J., dissenting).

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 466 (2006) (Stevens, J, dissenting). Stevens continued, “The symmetry standard ‘requires that the electoral system treat similarly-situated parties equally, so that each receives the same fraction of legislative seats for a particular vote percentage as the other party would receive if it had received the same percentage.’ This standard is widely accepted by scholars as providing a measure of partisan fairness in electoral systems.”

 


This Dishonorable Court

June 11, 2019

Last week we talked about ways to block appointments that could make this Court even worse. Is it worth it?

First, if allowed to fester, patterns of Court decisions can last for long periods.

In 1876, the Court denied any federal jurisdiction to prosecute racially motivated violence intended to change political control of government, setting the stage for segregation and intimidation which the Court finally began to address 64 years later. In 1883 the Supreme Court held that Congress had no power to ban racial discrimination in public accommodations. That remained the law until Congress and President Johnson took the Court on in 1964, a reign of discrimination and violence which continues to corrupt race relations.

Later in the nineteenth century, the Court set itself against the economic ideas of the Populists, Progressives and many state governments. That finally changed in 1937, after almost half a century, by which time President Roosevelt was on his way to appointing the entire membership of the Supreme Court.

Republicans like to blame the Warren Court for everything they don’t like but it was the Burger Court, with four Nixon appointees, that decided Roe v. Wade. Abortion foes still struggle to reverse it after nearly half a century.

In other words, patterns of judicial decisions can last for long periods despite concerted efforts to reverse them.

Second, what the Court has been doing under Chief Justice Roberts is very damaging to American decency and democracy.

In an infamous case, Chief Justice Rehnquist wrote that even if evidence turns up after a defendant had been convicted and shows that the defendant was probably innocent, the conviction was still final and no hearing to consider the new evidence is required.  So the petitioner, Leonel Herrera, was executed. We call the members of the Supreme Court “justices.” But justice had no sway in their thinking. The Court has revisited the issue several times, but it has not changed the law.

Instead the Court keeps getting worse, moving political power away from ordinary Americans. They let states monkey with election arrangements to prevent opposition supporters from voting. They protect partisan gerrymandering of legislative districts in order to protect incumbent parties.

While eviscerating ordinary voters’ rights, they protect the use of corporate cash to control the political process while attacking the political voice of American workers by shredding their unions’ economic base. That combination of support for corporate power and decimation of everyone else’s has been catastrophic for the electoral strength of ordinary Americans.

Beyond its blatant political partisanship, the Court repeatedly attacks the pocket books of ordinary Americans, protecting corporations from responsibility for the harms they do to customers and workers, protecting them from antitrust laws, undercutting employee wages and hours laws, and making us responsible for contract provisions that we may never have seen much less read or understood or had any realistic choice to decline.

The conservative majority has not been friendly to environmental protections that affect our air, water and warm our globe. Heaven forbid corporations should be responsible for the damage they do.

Past experience indicates that these decisions and the damage they are doing to American democracy and the economic system can fester for a very long time. But these problems are time bombs, so the nation can’t wait.


The Census Case

May 7, 2019

Too much is happening in this world, but the census deserves discussion because it affects how we handle everything. New York Solicitor General Barbara Underwood argued in the U.S. Supreme Court that the coming census will undercount the population and do significant damage to the people of New York and elsewhere.

I sued the Census Bureau over the 1970 census and lost. So few people had sued the Bureau, that loss made me an expert. A town in Indiana gave me a first-class plane ticket to help them at trial on the same issue. Who else were they going to get?

In court, on the case I had brought, the federal judge told me I’d have to have an overwhelming case to get relief against the Census Bureau. The Justice Department Attorney in Washington, D.C., responded, under his breath, that indeed I did. I was a bit more humble.

The problem was that we were attempting to predict the effect of the Bureau’s shift from exclusive reliance on an army of census takers knocking on doors to a mailed census form for people to fill in. Although I was suing in Washington, I was working for the St. Louis Legal Aid Society. We were convinced the changes would undercount our clients, so that many of the programs they relied on would be underfunded. As Chief Justice Burger explained in another case, a public education was largely unavailable to many of our clients. Without that, the census form would be difficult to fill in, if they filled it in at all.

The Census Bureau had studied the issue, and without getting into the weeds, I knew the studies they relied on, and the strengths and weaknesses of those studies. By the time they got me to the trial in Indiana, I realized the Indiana team did not have a witness that could deal with the issue.

This time the Bureau is asking people to file their census forms online. And they are asking about citizenship. The citizenship issue runs into the words of the Constitution. Article I, section 2, written in 1787, says the people should be counted “according to their respective Numbers.” It doesn’t refer to citizens or residents. Just Numbers. The reason of course was slavery. Slaves weren’t treated as citizens. But white southerners wanted the value of their votes increased by what the Constitution called “three fifths of all other persons,” i.e., slaves. Slaves had to be counted. So, the language and the original meaning are clear that everybody, citizen and noncitizen alike had to be counted.

In this case, the Bureau opposed adding a citizenship question because it would degrade the accuracy of the population count. Their view was based on a number of studies. But Secretary Ross overruled the Bureau without the benefit of any research and in the teeth of the experts’ views.

Regardless, several conservative judges argued that what the Secretary wanted to do was common sense. Science, statistics, data, who needs it? They treated science as if it just obfuscates reality much like those people who deny the science behind climate change, or the medical science behind vaccinations, or the biology behind changes in species over time. Science is taking a beating, but we will bear the pain. And since the census is about the health of American democracy, self-government will take the licking.

Population trends don’t favor the candidates preferred by five members of the Supreme Court so they’d rather throw the lawsuits out than allow the census to reflect the changes. Chief Justice Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” just dedicated judges. Don’t hold your breath.

— This commentary was broadcast on WAMC Northeast Report, April 30, 2019.

 


Problems Proving Obstruction and Conspiracy

April 2, 2019

Two statutes add to the many issues that complicate the status of Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

One defines obstruction of justice as “imped[ing] the due administration of justice.”[1] It has been treated as necessary that one have specifically intended to obstruct a proceeding. One can prove that someone like Trump intended to impede justice either by statements of intent or actions that make it obvious. Obstruction is about such things as Trump’s dismissal of Comey and urging an end to the investigation. It would have been cleaner if Trump had recused himself from the investigation. But he didn’t dismiss Rosenstein or Mueller or order either Comey or Sessions to end the investigation, only encourage them to. Was that enough? It probably would be if you told a police officer to get lost. But, even though Congress is not limited by the same rules of evidence, Supreme Court decisions about evidence of intent will complicate things. Let me come back to that in a moment.

A second statute makes “[A]ny conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . .” a violation of federal law.[2] Participants must agree, intend, and do something to further the conspiracy. Once again, intent might be proven by explicit statements, or by actions that make it obvious.

The Supreme Court, however, is not a friend of the obvious. It ratcheted back the law of conspiracy in an antitrust case saying that it is not enough to show that two people or companies acted as if they were acting in concert. The Court wants something closer to an explicit statement or admission.[3]

The Court doesn’t like to infer intent from behavior, except for infering intent to favor African-American efforts to equalize their opportunities with those of whites. The Court decided that many electoral district lines were unconstitutional racial gerrymanders in favor of African-Americans based on the shapes of the lines, even where the more obvious purpose was political gerrymandering which, to this day, they refuse to condemn.[4] But the Court resists finding that white officials disadvantaging minorities did so intentionally.[5] In one case they would not even get to the evidence, writing that such discrimination by high public officials was “implausible.”[6]

Intelligent attorneys would stop short of explicit statements or admissions. Politicians and criminal conspirators often make agreements based on unstated understandings. Trump came much closer to the brink than an intelligent lawyer would have. But notice the absence of any explicit quid pro quo. There’s no “release the recordings, Mr. Putin, and we’ll deliver the EU.” There’s no “let us help you violate our laws to get information on the Democratic National Committee or candidate Clinton.” It wasn’t even in the form of requests that they do some illegal things in the U.S. Instead the evidence we know about was all encouragement – saying that would be great, we hope Putin does it, or we predict he will. Trump’s statements are not explicit. Lawyers recognize that circumstantial evidence is often the most reliable but this Court thinks big shots and major corporations should be protected from it. Here, the evidence we know about is ambiguous – does it indicate a joint endeavor or simply knowledge of Putin’s actions?

The strength of the evidence will depend in part on whether Congress is willing to ignore the Court. In other words, the U.S. Supreme Court had its favorites and its scapegoats even before Trump’s appointments made it worse. None of that makes Trump blameless but it does mean that there will be battles over the evidence if there is any attempt to impeach.

— This commentary was broadcast on WAMC Northeast Report, April 2, 2019.

[1] 18 U.S.C. § 1503, 1505 and https://www.law.cornell.edu/wex/obstruction_of_justice.

[2] Hass v. Henkel, 216 U.S. 462, 479-480 (1910).

[3] Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

[4] See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996).

[5] See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); and see also League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part).

[6] Ashcroft v. Iqbal, 556 U.S. 662 (2009).


Take America Back

March 18, 2019

It is painful to see the forces of hate killing men, women and children on many continents and here in many states, in schools and public places, taking apart the work of what we have been honoring as the greatest American generation who spilt their blood for the America they loved. It is painful and frightening to see the effort of the alt-Wrong to rip apart the free world that this country took the lead in creating. It’s painful to see terrorists crediting an American president as their inspiration for murder.

When I was a small boy, American men were fighting, and dying, in the Pacific, Africa, Italy and, after the landing in Normandy, through France and Germany. They were struggling for freedom, democracy and brotherhood. As the war ended, Truman sent Franklin Roosevelt’s widow, Eleanor Roosevelt, to the UN. Truman sent her there to make clear to the world the depth of America’s commitment to building a robust and sustainable free world. She chaired the seventeen-­member UN Commission on Human Rights and led that body in the development of the UN Universal Declaration of Human Rights. You could have drawn much of it from our own Constitution. These were American ideals on the world stage.

In 1948, the Supreme Court under Chief Justice Vinson held racially restrictive covenants unconstitutional. Then in 1952 the NAACP brought five cases to the Supreme Court challenging segregation and seeking to overrule Plessy v. Ferguson, the case that had upheld segregation in 1896. The Truman Administration told the Court that the US was being attacked around the globe because of segregation and that segregation complicated American foreign policy. Obviously important, the case was reargued after President Eisenhower took office and Chief Justice Vinson had died. Eisenhower’s Justice Department submitted its own brief to the Court, and it underscored the arguments of the Truman Administration that this country needed to end segregation. The Supreme Court agreed; in Brown and a series of cases it made clear that American government could make no distinction of race, creed or heritage in its treatment of Americans.

Americans cheered Brown and made clear it was a popular decision. We believed what they said in the Declaration, that “all men are created equal.” Americans fought a Civil War over that principle. By the time of Brown, this country had embraced people like Jesse Owens, Marion Anderson, and Ralph Bunche among many others. With some obvious and vocal exceptions, Americans embraced the end of segregation. That is the America embraced the world over, admired for its principles and its heart. That is the America that took all of us to its heart regardless of which country our ancestors came from, which faith they brought. That is the country that our ancestors embraced with both love and pride, the America they wanted to be part of and contribute to. That is the America they wanted for us. That is the America we need to take back.

An America with neither mind nor heart clearly needs a trip to see a Wizard of Oz. An America with a man in a position of power who gloats that “I could stand in the middle of Fifth Avenue and shoot somebody” with impunity is an America which actually does need to deport someone, and to wall out the orange-haired imposter before he corrupts our genetic inheritance.

— A version of this commentary was broadcast on WAMC Northeast Report, March 19, 2019.


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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