Some of you may think that my comments on the subpoenas and Bruce Ackerman’s comments on the rules for the trial of the impeachment charges are in conflict. If the Senate adopts the rules used for the trial of the charges against Andrew Johnson, Bruce accurately describes the Senate process. I’m not convinced the Senate will go that way, but Bruce is right that it is important to understand what that track means. My own comments were aimed at Republican complaints that Democrats should have investigated more. As I outlined, the significance of whatever the Court does about the subpoenas, will be entirely political. The evidence is sufficiently out there already .
The Supreme Court decided to hear the Trump Administration’s appeals from lower court orders that tax returns and other documents be provided. What does that mean?
The Court set the case for argument in March. The Court has a lot of control over timing. But generally, decisions are announced when the various opinions are finished. That can take a long time in controversial cases. So sometime in June is likely.
Four members of the Court can set a case for hearing. Those who vote to take a case don’t have to vote for the side requesting it but, if they are favorably inclined, those four are only one vote short. Statistically, the Court decides in favor of the party requesting review between two-thirds and three-quarters of the time. That suggests Trump’s team probably wins.
But given the importance of the decision, the Court might just feel that it should make the final decision. Trump has belittled and attacked lower court judges. It would be harder for him to attack the Supreme Court.
A Supreme Court decision for the Administration could affect momentum. Deciding for Trump could anger Democrats and bring more to the polls, making Democratic victories more likely in 2020. It could also lead some Trump supporters to relax about the election, also making a Democratic victory more likely.
It will be difficult for the Court to justify deciding for Trump. The cases aren’t in his favor. Other presidents have had to comply with subpoenas. Deciding for Trump will make the Court seem totally political. Some members of the Court’s conservative majority would regret that. They think of themselves as judges, not partisans. Chief Justice Roberts explicitly said the Court is composed of judges, not partisans. Of course, we’ll see.
Legally, what’s already been disclosed makes a very strong case that Trump violated the Constitution, and broke the law, in ways that justify impeachment. As I’ve described, Trump put his personal interests above the national interest. He had previously decided to support and ship arms to Ukraine, stopping only to get a campaign message in his favor from the Ukrainian president. He changed back only when the story of the phone call came out. Everything was about his campaign and nothing about American interests.
Republicans talk about calling the whistle-blower. That would compound the violations of law, and the whistle-blower has nothing relevant to offer. Any decent judge would sustain objections to calling the whistle-blower to testify. All the evidence has now come from others. Not a single fact comes from the whistle-blower, who could only testify about what he or she heard or saw in the transcript. Other people heard the call, and saw the transcript. With the investigation done, the whistle-blower has nothing to offer. Most of what he or she said was hearsay and is inadmissible. Law enforcement uses hearsay as a tip – it checks on that tip by going back to people with direct knowledge and verifying or contradicting what the whistle-blower said. Here, the whistle-blower’s allegations were repeatedly corroborated. The whistle-blower’s relevance ends at that point.
Juries sometimes ignore the law and vote to dismiss what is clearly established. That’s the real relevance of the subpoenas. I doubt Senate Republicans will do their duty on the current record – most have made it clear they don’t care whether Trump is innocent or guilty. But additional disclosures could make it politically as well as legally impossible to ignore the evidence.
— This commentary was broadcast on WAMC Northeast Report, December 17, 2019.
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.
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.
Brett Kavanaugh no longer seems a shoo-in for appointment to the Supreme Court. Kavanaugh has now been accused of attempted rape. Let’s be clear – there has never been a time when rape was just juvenile misbehavior. Rape is and has been a crime for centuries. Nevertheless, I doubt this president will make a better nomination, a point Akhil Amar, an old friend on the Yale Law faculty, made eloquently on these airwaves recently. If the Republicans can put another person on the Court, whoever it is will solidify a majority for repealing a half century of progress on social, procedural and political rights, repealing gay rights, women’s rights, anti-discrimination law and a host of protections against our becoming a police state.
Beyond the question of who Trump’s nominee is or will be, the larger question for both the Court and the country is the impact on the November congressional elections. Control of Congress is crucial not only for its legislative output, but also for eventually retaking the Court.
At the hearings, Kavanaugh invariably responded to questions about his own views with descriptions of prior law, showing only that Kavanaugh could explain the cases, which no one doubted. More interesting were his shifting views about whether it is OK to investigate a sitting president. It seems pretty clear that he believes it’s a bad idea to investigate and prosecute sitting presidents outside the impeachment process. But he hasn’t told us whether it is unconstitutional.
Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. The civil suit brought against Clinton was eventually dismissed because it did not claim Clinton violated the law. That suit, however, was brought for purposes unrelated to the claims in the suit, namely to conduct fishing expeditions on Clinton until they found something that might be illegal. That’s called abuse of process.
Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. The Republicans went after Clinton because it was sex and in those days Republicans were puritans.
Kavanaugh eventually wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So he thought there were good reasons not to sue sitting presidents. But he did not slam the door shut. He expressed no view on the constitutionality of investigations or prosecutions. And he commented that there was always impeachment, which, if it is to be more than a partisan political tool, must be based on investigation 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 to support that country’s interests in exchange for putting Mr. Trump in the White House. Whether or not a president can be prosecuted while in office, 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, for Trump to nominate a candidate for a crucial vacancy on the Supreme Court who doubts the legitimacy of investigating a sitting president, looks a lot like deliberate interference with the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But Trump’s efforts to control the investigation of his own behavior, making him the judge of his own case, offends a sense of justice. And that is directly relevant to the November elections. This president must have a Congress which is prepared to serve its constitutional function of preventing presidential abuses of power.
— This commentary was scheduled for broadcast on WAMC Northeast Report, September 25, 2018, but pulled at the last minute because of new developments in the Middle East.
Welcome to Iran. Iran has a Guardian Council of men in long robes. We have a Guardian Court of nine judges in black robes. Both decide who rules. The Guardian Council of Iran decides who is allowed to run. The Guardian Court decides which party wins by blessing the vote rigging that favors Republicans – by blessing gerrymandering after the Republicans rewrote voting districts to favor themselves; by blessing registration requirements that Republicans erected to block anyone likely to vote Democratic from getting or staying registered and from voting; and by removing the protections of the Voting Rights Act against discriminatory devices in the former Confederate states and wherever discrimination had been the rule.
The Guardian Court competes with Iran’s Guardian Council for political control by limiting what labor unions can spend and by overruling limits on political spending by corporations. It tilts the whole electoral environment toward the rich and powerful and against workers and consumers.
The U.S. Guardian Court is nearly as effective as the Iran Guardian Council, even without Russian help. And the retirement of Justice Anthony Kennedy will make it worse. He was the only conservative who understood that vote rigging is inconsistent with a democratic constitution and sometimes acted on that understanding. With a less principled replacement, the current court will present an even bigger barrier to protecting American democracy.
This isn’t about law and all about partisanship. It’s not, in Roberts famous example, like an umpire calling balls and strikes. It’s an umpire in one ball club’s pay, corrupt even as courts across the globe are gaining the confidence to insist on clean elections. To put it another way, the U.S. court system is being corrupted by the rewards of capitalism.
Still more is at stake. Roe v. Wade, protecting a right to abortion, is at stake in the changes in the membership of the Court along with a panoply of labor, consumer, environmental and civil rights protections.
Discouraged? This is the worst time to be discouraged. We can take the country back. But first we must win two elections, the 2018 legislative election and the 2020 presidential election.
Winning the 2018 legislative elections on both the state and national levels can reduce the damage. Fairer state legislatures can insist on fairer elections. Congress has the power to regulate national elections to block states from using unfair rules. And it can block Trump’s plan to abuse the census to further turn the Republican minority of voters into national dominance.
Along the way, winning in 2018 can prevent any more bad nominations to our court system. It can block the Administration’s abuse of everyone from workers to women to immigrants.
Winning in 2020 will make all that easier and it will make it possible to get the Court back. Yes I said we can get the Court back; we can end the rule by the US Guardian Council that masquerades as a Court.
The Constitution does not specify the number of justices on the Supreme Court. That is set by law. The number of justices has been set as low as five and as high as ten. Although a controversial proposition, it has been argued that the number can be changed by the simple process of nomination and confirmation. Either way, it is not set in stone.
President Franklin Delano Roosevelt proposed to increase the number when the Court was blocking his efforts to deal with the Depression. In the event, the Court backed down without any change in the number. But the point is that it can be done and should be.
This is a time to get fired up by the efforts of the capitalists, corporations and wrong-wing religious groups to use the courts to take our country away from us. We can take it back. We must and will take it back.
— This commentary was broadcast on WAMC Northeast Report, July 3, 2018.
 Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (2018).
 Citizens United v. FEC, 558 U.S. 310 (2010).
 Roe v. Wade, 410 U.S. 113 (1973).
 28 USC § 1.
 Act of Feb. 13, 1801, § 3, 2 Stat. 89; Act of March 3, 1863, ch. 100, 12 Stat. 794.
 Peter Nicolas, “Nine, Of Course”: A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, 2 NYU J.L. & Liberty 86 (2006).