Sunday, December 9, 2018

Trump Worse Than Nixon on White House Offenses

      The American people need to have, and deserve to have, confidence in the president. Richard Nixon famously said as much as the enormity of the Watergate scandal began to be disclosed. "People have got to know whether or not their President is a crook," Nixon declared at a meeting of the nation's newspaper editors on November 17, 1973. "Well, I'm not a crook."
      Nixon in fact was not a crook, as commonly understood, but worse that he had corrupted the office of the presidency by multiple criminal and political violations. He had used the power of his office to spy on political opponents and had impeded through various means lawful investigations into his illegal actions.
      Now, another embattled president, Donald Trump, is proclaiming his innocence and integrity as the evidence mounts that he was corrupting the political process as a presidential candidate and has used the power of his office to impede investigations into his actions, some of them patently illegal and others arguably contrary to law.
      The latest evidence is the filing by the government, specifically the U.S. attorney's office for the southern district of New York, that Trump — so-called Individual 1 — organized and directed the scheme to conceal hush-money payoffs to his former sexual partners. Those payoffs, in the form of buying the rights to the women's stories to suppress them, were made in the final month of the 2016 campaign for the specific purpose of benefiting Trump's candidacy.
      Federal campaign finance law requires candidates for federal office to disclose campaign expenditures. Trump's former fixer, Michael Cohen, is now headed toward four or more years in prison for multiple crimes, including the campaign finance violations that he said were "in coordination with and the direction of Individual 1." Trump is shielded from indictment for the offense, however, under the never-adjudicated Justice Department policy that precludes prosecuting the president while in office.
      Trump, who is counted by fact-checkers as having lied more than 6,000 times in less than two years in office, responded to the sentencing memorandum in Cohen's case with the demonstrably false tweet that he had been "totally cleared." Two presidents in recent memory, Nixon and Bill Clinton, have faced impeachment for lying, but the contemporary Liar in Chief shows both of them to have been inept pikers at deception.
      "Trump’s most important lies are not spin, or misleading statements," according to the Trump-critic political scientist Brian Klaas, author of The Despot's Apprentice. "They are the complete inversion of truth, an Orwellian assertion that the truth is what he says. The documents directly implicate Trump in directing multiple criminal conspiracies. A tweet doesn’t change that."
      Trump's most effective denial has been in the form of a repeated incomplete sentence, often rendered in all-caps "No collusion," aimed at discounting the legal significance of the proven and acknowledged contacts between officials in Trump's campaign and representatives or agents of the Russian government. The filing in Cohen's case adds new evidence that the contacts began earlier than previously known and that Trump had a personal stake in currying favor with the Russian government even as he repeatedly and insistently denied any business interests in the United States' most important adversary nation.
      In an acknowledged effort to avoid prison time, Cohen has cooperated, however incompletely, with the office of special counsel Robert Mueller by spilling some of the previously unspilled beans about Trump's campaign. Cohen, while still in Trump's good graces, acted as intermediary for an offer he received in November 2015 from an unnamed Russian with ties to the Kremlin for "government-level" synergy between Russia and the Trump campaign.
      At the time, Trump was scouting the possibility of opening a Trump Tower in Moscow, a project that would depend on favorable treatment from the Russian president, Vladimir Putin. The discussions about the project included the thought of offering Putin a $5 million penthouse in the planned edifice. News of the never-offered bribe sparked discussion among legal experts about invoking the anti-bribery provisions of the Foreign Corrupt Practices Act, but any speculation on that issue runs afoul of the president's practical immunity from criminal prosecution and his effective immunity from removal through impeachment as long as Senate Republicans turn a blind eye to what would be impeachable offenses for any other president.
      Nixon was forced to resign only after the White House tapes confirmed his personal role in the hush-money payments to the Watergate burglars to keep silent.. Trump is trying another tactic to buy silence from those who can implicate him: publicly demeaning any who cooperate with the special counsel's investigators and publicly raising the possibility of presidential pardons for any who need executive clemency. Nixon, it will be remembered, was counseled against any hint of pardons for the Watergate burglars or the architects of the later cover-up.
      Thus, it is imminently fair to make the comparison: Trump is worse than Nixon ever was, even with Mueller's investigation not yet complete. Unlike Nixon, Trump is a kind of crook: he is personally enriching himself in open and notorious violation of the Constitution's foreign and domestic emoluments clauses as his hotels rake in money from domestic and foreign lobbyists seeking his favors. And, unlike Nixon, he openly sought and accepted assistance from a foreign enemy in his campaign and since then as president. But Trump has so shattered political norms that none in his party will call for the only remedy: impeachment.

Sunday, December 2, 2018

An Unoriginalist Plea to Limit Civil Forfeiture

      The conservatives and libertarians who have long complained about governmental abuse of civil asset forfeiture in criminal cases are on the verge of a legal victory at the U.S. Supreme Court. The victory will be owed, however, not to the doctrine of constitutional originalism that so many conservatives view as sacrosanct, but to the theory of living constitutionalism that they view as legal and judicial heresy.
      The resourceful litigators at the libertarian Institute for Justice (IJ) found an appealing case to use to ask the justices to rein in the widespread practice that state and local law enforcement agencies employ to seize valuable property from accused offenders. The hour-long arguments in Timbs v. Indiana last week [Nov. 28] made clear that justices across the ideological spectrum are set to rule, for the first time, that the Eighth Amendment's Excessive Fines Clause applies to the states just as it limits the federal government.
      As the unfortunate victim of forfeiture abuse, the IJ lawyers found Tyson Timbs, a recovering opioid addict who fell into selling heroin and thus into the clutches of undercover police officers in Marion, Indiana. When arrested in 2013, Timbs was driving the $42,000 Land Rover SUV that he bought a few months earlier with the proceeds from his father's life insurance policy. Timbs was given probation after pleading guilty in 2015 to selling four grams of heroin for $385 in two separate sales, but the car was seized and three years later sits idle in a police parking lot.
      Like other states, Indiana authorizes the forfeiture of property representing the fruits or instrumentality of a crime. Civil asset forfeiture has been part of American law for 300 years, ever since the colonies seized ships from seafaring pirates. Under an especially abusive policy, the authorities in Marion outsourced the seizure of Timbs's vehicle to a private lawyer, who stood to reap a contingency fee for the service: "institutionalized bounty-hunting," as the IJ lawyer Wesley Hottot called it in his Supreme Court brief for Times
      After taking Timbs's guilty plea, Judge Jeffrey Todd found the seizure of the Land Rover "grossly disproportionate" to Timbs's offense: the car cost four times as much as the maximum $10,000 fine allowed under Indiana law. Indiana's intermediate-level Court of Appeals agreed, but on review the Indiana Supreme Court held that the Eighth Amendment's Excessive Fines Clause does not apply to states because the U.S. Supreme Court has never said so, in so many words.
      The Eighth Amendment's stipulation that "excessive fines" not be "imposed" comes straight from the English Bill of Rights, adopted in 1689 as part of England's Glorious Revolution. State constitutions have included similar language ever since the Founding Era. The amendment's other prohibitions — against "excessive bail" and "cruel and unusual punishments" — have been held to be incorporated against states, respectively in 1971 and 1947.
      Virtually all the other provisions of the Bill of Rights have also been applied to the states under the so-called incorporation doctrine, beginning in earnest with the First Amendment in the 1920s and 1930s and most recently the Second Amendment's right to keep and bear arms in 2010. For no particular reason, however, the Supreme Court has never explicitly incorporated the Excessive Fines Clause.
      The Court's newest justices, Neil Gorsuch and Brett Kavanaugh, were visibly impatient with any suggestion from Indiana's solicitor general, Thomas Fisher, that the clause does not apply to the states. "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?" Kavanaugh asked, skipping over the unincorporated grand jury and civil jury rights in the Fifth and Seventh Amendments.
      Fisher seemed to make some headway, however, with his more nuanced argument that forfeitures are not fines at all. "Your argument is that it isn't a fine at all," Roberts said, summing up without rejecting the position. "History is four-square against [Timbs's] claim," Fisher answered.
      A quarter-century ago, the Supreme Court did invoke the Excessive Fines Clause in a forfeiture case brought by the federal government. The unanimous decision in Austin v. United States (1993) ordered a lower federal court to reconsider the government's seizure of a South Dakota man's mobile home and business in a relatively minor drug case. In a partial concurrence, however, Justice Antonin Scalia, the godfather of constitutional originalism, described it as a "closer question" whether the clause applies to "confiscations of property rights based on improper use of the property."
      In his argument, Hottot contended that modern-day forfeiture differs from the forfeitures of the Founding Era after having turned into a revenue source for financially strapped police departments. Indeed, an IJ report cited in his brief counted $254 million worth of civil asset forfeitures by law enforcement agencies in 26 states and the District of Columbia in a single year: 2012.
      Justice Sonia Sotomayor appeared sympathetic, based on examples cited in briefs filed in the case. "Many of them seem grossly disproportionate," she said. Fisher countered, however, that forfeitures have often been "draconian" from historical times to the present.
      The wide array of groups supporting Timbs in the case — from the American Civil Liberties Union to the U.S. Chamber of Commerce and many others — suggests the time has come to set constitutional limits on forfeiture abuse. But make no mistake: Timbs will owe any victory not to the dead Constitution that Scalia revered, but to the living Constitution that adapts as time and circumstances change.

Friday, November 16, 2018

Courts Still Needed to Curb Political Gerrymanders

      Chief Justice John G. Roberts Jr. made clear in two partisan gerrymandering cases earlier this year his plan to keep the Supreme Court out of that political thicket by disposing of the cases without settling the issues presented. Now comes another judicial intervention skeptic, the Washington Post columnist Charles Lane, to claim in a post-election column that successful anti-gerrymandering ballot measures in five states prove that federal courts are not needed to cure the acknowledged political problem.
      Redistricting reform advocates gained significant ground, to be sure, with ballot measures approved on Nov. 6 in Colorado, Michigan, Missouri, and Utah and a measure approved by Ohio voters earlier in the year, all aimed at reducing the partisan excesses of congressional and legislative districting. Colorado, Michigan, and Utah now join the 20 or so states with independent commissions empowered to draw or propose legislative or congressional districts or both.
      To be clear, however, the Wisconsin political gerrymander that Roberts helped preserve for the time being in Gill v. Whitford is still alive and well, according to a report in the Madison-based weekly Isthmus. Along with electing a Democratic governor, Democrats won a majority of the votes in state legislative races, but Republicans maintained a 63-36 edge in the legislature's lower chamber thanks to the politically skewed maps they drew nearly a decade ago. A three-judge federal court had ordered the maps redrawn, but Roberts concocted a technical legal issue in the Supreme Court proceedings to set aside the decision and leave the misdrawn districts in effect for one more election cycle.
      The ballot measure results show the political appeal of creating independent commissions to take redistricting away from state legislatures. Colorado voters approved Amendment Y and Amendment Z to create separate legislative and congressional redistricting commissions each with 71 percent of the vote. Michigan's Proposal 2 also won easily with 61 percent of the vote, while the successful margin for Utah's Proposition 4 was a scant 2,000 votes.
      Ohio and Missouri took different tacks to try to reduce the political excesses of drawing district maps. Ohio's Issue 1, approved with 75 percent of the vote in the May 8 party primaries, requires a 60 percent majority in the state legislature to approve congressional districting, including at least 50 percent of the members of each of the two major political parties. Two other states, Connecticut and Maine, require a two-thirds supermajority requirement for redistricting, but Ohio added a unique provision to specify minimum support from each of the two major parties.
      Missouri's Amendment 1, approved on Nov. 6 with 62 percent of the, creates the new office of nonpartisan state demographer to draw legislative and congressional districts subject to a statistical test to measure partisan fairness. The demographer's maps will be subject to approval by the previously created bipartisan redistricting commissions.
      Lane, a friend and colleague who covered the Supreme Court for the Post a while back, argued in his column [Nov. 13] that even without the new redistricting commissions, voters themselves thwarted gerrymandering politicians by breaking free from their partisan map-drawing. The mapmakers, he argued, had not reckoned with the changing views of the suburban voters who had been packed into supposedly safe Republican districts but instead broke Democratic in 2018.
      All told, Lane concluded that what he called the United States' "partisan gerrymandering problem" is now "on its way to being cured, with no need for federal judicial intervention." In an earlier column, Lane had seconded Roberts' view from the bench that the Supreme Court risks political crossfire if it tries to draws a line against partisan gerrymandering.
      The Supreme Court's 2017 term had been viewed as the year when the justices would finally settle on a workable standard, but the two cases that separately challenged the Republican gerrymander in Wisconsin and a Democratic gerrymander in Maryland ended only with whimpers. Roberts led the Court in sending the Wisconsin case back for plaintiffs to try to show legal standing to challenge individual districts instead of the statewide map.
      Roberts was surely the prime mover behind the unsigned decision in the Maryland case, Benisek v. Lamone, to dismiss the challenge as too close to the next election. On remand, the three-judge court in that case just ordered the state to redraw the districts, but the state has filed a notice of appeal.
      Redistricting reformers do not share Lane's sanguine view of the results of the Nov. 6 balloting in congressional races. Overall, Lane noted, Democrats won 52.5 percent of the vote in congressional races and — "wait for it" — 53.2 percent of the seats with some races still undecided. Lane conceded, however, that partisan gerrymanders performed just as intended in two states: Maryland, with one Republican in the eight-member House delegation, and North Carolina, with a reaffirmed 10-3 edge for Republicans in a closely divided state electorate.
      Partisan gerrymanders amount to "artificial walls to keep back the natural political tides," according to Justin Levitt, a professor at Loyola Law School in Los Angeles. The walls "held" in some states, including North Carolina, he explains in an interview. Democrats "managed to get over the wall" in others thanks to "extraordinary turnout," he acknowledges, but those successes "don't make it right that the obstacles were put there to begin with."
      In the meantime, the new redistricting commissions may give voters in those states some protection against political mischief. Voters in the majority of states, however, may still look to federal or possibly state courts —  notwithstanding Lane's reassurance to the contrary —  to offer some hope to cure the gerrymandering problem.

Sunday, November 11, 2018

Trump's Obstruction Must Not Succeed

      No president other than Donald Trump — however Republican, however conservative — would have given a moment's thought to appointing Matthew Whitaker as the chief law enforcement officer of the United States even temporarily. Whitaker is a con man with bizarre views about the federal judiciary and with no qualifications to be acting attorney general apart from his sycophantic loyalty to Donald J. Trump.
      Trump's installation of Whitaker, a pro-Trump talking head on CNN for the past year, is both unconstitutional and illegal, according to some but not all legal experts. The legal doubt about the appointment [Nov. 7] is not, however, the most important mark against it.
      Instead, Trump's selection of Whitaker must be seen as presidential obstruction of justice by indirection. Whitaker came to Trump's attention by using his CNN slot to echo Trump's denunciation of Mueller's investigation as a "witch hunt" and to deny with unprovable certainty any Russian impact on the outcome of the presidential election.
      Whitaker told friends he signed up for the CNN slot in hopes of gaining Trump's attention for a federal judgeship. On CNN, Whitaker outlined a scenario that Trump could use to quash the Mueller investigation by firing attorney general Jeff Sessions and then appointing a successor to kill Mueller's investigation by cutting his budget.
      As acting attorney general, Whitaker now exercises supervisory oversight over an investigation that he continued to call a witch hunt even after Mueller's successes in obtaining convictions against significant Trump campaign figures, including former campaign chairman Paul Manafort, and indictments against Russian election infiltrators. And if there were any doubt, Whitaker is signaling that he will not recuse himself from that role, as Sessions did, without yet consulting the Justice Department's ethics officers on the question.
      Sessions, an early Trump supporter, was fired after a tumultuous 21 months in office for having recused himself as a potential witness from any role in overseeing Mueller's investigation. He was fired, as the ACLU's national legal director David Cole aptly remarked on Saturday [Nov. 10], for the one good thing that he had done while attorney general.
      Whitaker caught a touchdown pass for Iowa in the 1991 Rose Bowl, but he had not much else on his resume until taking over the corner office at Main Justice last week. He served for four years as a Republican-appointed U.S. attorney for Iowa and then after several years as private citizen ran fourth out of a field of five candidates in the Republican primary for the U.S. Senate in 2014.
      In that campaign, Whitaker took the truly unconstitutional position that, if elected, he would screen nominees for federal judgeships based on whether they had "a biblical view of justice." Apparently, Whitaker's law school course on constitutional law skipped over the provision in Article VI, clause 3, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
      As another example of Whitaker's weak spots on constitutional law, he has called for overruling the very foundation of judicial review in the United States: Chief Justice John Marshall's landmark decision in Marbury v. Madison (1803). That decision gained support most recently from no less a conservative than the Supreme Court nominee Brett Kavanaugh, who applauded it in his confirmation hearing as one of the Court's "four greatest moments" in history.
      As private citizen, Whitaker served on the advisory board of a company that paid a $25 million fine to the Federal Trade Commission (FTC) for bilking would-be inventors out of thousands of dollars by promising help with their patent applications that never materialized. Whitaker's role in the Florida-based World Patent Marketing was featured in the company's promotional materials, but he was not named in the FTC's complaint.
      The White House apparently knew nothing about the case before Trump's appointment of Whitaker. After news of the case surfaced, however, the Justice Department spokeswoman Kerri Kupec issued a statement noting Whitaker's previous statement that "he was not aware of any fraudulent activity."
      The legal issue over Whitaker's appointment stems from the view of some legal experts that the Constitution requires any "principal officer," even in a temporary role, be Senate confirmed. The argument to that effect was set out in an op-ed article in the New York Times by two lawyers from opposite political camps: Neal Katyal, the Georgetown law professor and former acting U.S. solicitor general under President Obama, and George T. Conway III, the anti-Trump Republican lawyer who is married to senior White House counselor Kellyanne Conway. Stephen Vladeck, a respected law professor at the University of Texas, set out the contrary argument in a subsequent op-ed article also in the Times. He argued that the federal Vacancies Reform Act allows Whitaker to serve in an acting capacity for seven months.
      With no action on Trump's part, the post would have devolved on Rod Rosenstein, the Senate-confirmed deputy attorney general who has gained Trump's disfavor by failing to limit Mueller's authority. Thus, Trump's decision must be understood as deliberately aimed at curtailing the Mueller investigation. The president tried to distance himself from that evident conclusion on Friday [Nov. 9] by claiming, falsely, that he had not even met Whitaker before the temporary appointment.
      Trump's move has disturbing parallels to President Richard Nixon's firing of the special Watergate prosecutor in the so-called Saturday night massacre. Nixon's ploy failed in the face of a public and congressional backlash. Trump seemingly believes that he will be saved by his political base and compliant Senate Republicans. For the sake of the rule of law, he must not succeed and his lackey Whitaker must be thrown back into his well-earned obscurity.

Sunday, November 4, 2018

For Trump, Unconstitutional Is No Problem

      President Trump's plan to ban birthright citizenship with an executive order in direct contradiction of the plain language of the Fourteenth Amendment comes as no surprise to anyone aware of the president's limited respect for the Constitution. Trump took an oath to "preserve, protect, and defend the Constitution of the United States," but he has been in open violation of one of its provisions since his first day in office.
      The provision at issue, equally as plain as the Fourteenth Amendment's citizenship clause that Trump proposed to defy, prohibits the president or any federal official from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State" except with permission from Congress (Art. I, sec. 8, cl. 9). Trump is violating the so-called Foreign Emoluments Clause, according to a lawsuit filed by the attorneys general for the District of Columbia and the state of Maryland, by profiting from foreign governments' patronage of the eponymous Trump International Hotel that the president still owns even if removed from managing it.
      The lawsuit cleared a second procedural hurdle last week [Nov. 2] when a federal judge in Maryland rejected a motion by Trump's lawyers for an immediate pretrial appeal of legal issues in the case and a stay of any pretrial discovery. U.S. District Court Judge Peter Messitte rejected point by point all of the justifications Trump's lawyers offered for allowing the president a so-called "interlocutory appeal" to the Fourth U.S. Circuit Court of Appeals in advance of discovery or trial. "Judicial economy favors going forward with the case in this Court at this time," Messitte wrote at the end of his 31-page opinion.
      The case, District of Columbia v. Trump, PJM 17-1596, is now set for pretrial discovery that could include, according to D.C.'s attorney general Karl Racine, examination of some of Trump's federal income tax returns. Messitte ended his opinion by asking the lawyers to submit a proposed schedule for discovery within 20 days — that is, by the end of Thanksgiving week.
      Trump's lawyers contended, among other arguments, that the president ought not be burdened by a civil lawsuit and pretrial discovery given all the demands on his time. Messitte, a senior judge appointed to the federal bench in 1993 by President Bill Clinton, batted that claim away by noting that Trump has found the time while president to pursue or threaten lawsuits against, for example, the author Michael Wolff or his former aide Steve Bannon. "[T]he President himself appears to have had little reluctance to pursue personal litigation despite the supposed distractions it imposes upon his office," Messitte wrote.
      The D.C./Maryland suit now appears to be the farthest advanced of three Emolument Clause lawsuits filed against Trump. Messitte noted in his opinion that one of the suits, brought by the whistleblower advocacy group Citizens for Responsibility and Ethics in Washington (CREW), was dismissed by a federal judge in New York, George Daniels, for lack of legal standing. The other suit, filed in federal court in the District of Columbia on behalf of 200 members of Congress under the name Blumenthal v. Trump, survived a motion to dismiss after Judge Emmet Sullivan found the lawmakers had legal standing. Sullivan noted in his ruling that under the Emoluments Clause, Trump had the obligation to seek permission from Congress to receive any payments prohibited under the provision.
      Trump's lawyers have argued in all three cases that arms-length transactions with Trump properties are outside the Emoluments Clause. In their view, prohibited "emoluments" are limited to payments to an official "arising from an office or employ." Messitte rejected that "cramped" interpretation in his July 25 decision refusing to dismiss the case. As Messitte explained in the new opinion, the definition urged by Trump's lawyers would be "tantamount to a bribe," a significantly narrower definition than the broad reading of "emoluments" found in 18th century dictionaries.
      Messitte noted that Trump is still receiving foreign emoluments even within his narrow definition of the term. Several foreign governments, including as examples Kuwait and Saudi Arabia, "have expressly stated in the media that they are patronizing the President’s hotel precisely because he is the President." Those payments, Messitte continued, "constitute an 'emolument' foursquare within the President’s definition of the word, especially if, what appears likely, the payments to his hotel are being made with an expectation of favorable treatment by the President in matters of foreign policy."
      Trump's lawyers cited four legal issues they wanted to include in the midstream appeal, including the court's authority to issue either declaratory or injunctive relief against the president. Again, Messitte found the argument baseless. He repeated from his earlier opinion that there is "ample authority suggesting that even the President — in his official capacity — can be the subject of equitable relief, especially given a situation such as the one at hand." Put differently, the president is not above the law.
      The president previously demonstrated his shaky knowledge of the Constitution by claiming to have read all 12 articles: it has only seven. The supposed birthright citizenship executive order, unissued more than a week after Trump's boasting of it, needs no extended discussion here to underscore that the president has no power with the stroke of a pen to amend the Constitution that he swore to "preserve, protect, and defend." So far, Trump has gotten away with mocking and defying the Constitution, but the independent judiciary that the Framers created may yet be strong enough to hold him accountable.

Sunday, October 28, 2018

With 'Crisis of Legitimacy,' Rethinking the Supreme Court

      The transformation of the Supreme Court after the seating of two conservative justices in bitterly fought confirmation battles has generated anguished talks on the political left about possible reforms to depoliticize the Court. Despite reformers' earnest attempts, however, the smorgasbord of ideas discussed at a program sponsored by the liberal American Constitution Society (ACS) last week [Oct. 25] seem unlikely to be adopted or, even if adopted, to reduce the level of political conflict currently surrounding the Court.
      Even before Justice Brett Kavanaugh's historically narrow two-vote confirmation, public confidence in the Supreme Court was sagging to the point that Jeffrey Rosen, director of the National Constitution Center, asked whether the Court is facing a "crisis of legitimacy." Rosen noted in a recent podcast that a Gallup survey in early July found only 37 percent of respondents expressing high confidence in the Court: that figure has been below 40 percent for a decade, but traditionally higher all the way back to the early 1970s.
      The proposals for "reforming the Court" discussed at the ACS event by three longtime law professors and one veteran of the political world range from the simple and straightforward to complex and indirect. As one example of the former, Amanda Frost, a professor at American University's Washington College of Law, suggested requiring more than a one-vote margin to overturn a law passed by Congress or a state legislature. This longtime Court watcher can recall that idea from as far back as the 1950s, but it has never advanced beyond idle political science-type talk. One possible variation could be to require a supermajority to overturn a precedent
      By way of a more complicated reform, Ganesh Sitaraman, a professor at Vanderbilt Law School, pointed to proposals for a radical change in selecting the Supreme Court's personnel. These proposals envision a random lottery among federal appeals court judges to select the judges who would comprise the "one Supreme Court" specified in the Constitution. Another, more complex proposal envisions a Court deliberately engineered to maintain a partisan balance, with five justices appointed by Republican presidents, five by Democratic presidents, and five additional members selected with mutual agreement by both blocs. Sitaraman saw the benefit of either of these proposals as reducing the "cult of personality" around any individual justice.
      The panelists largely steered clear of two of the simplest and currently most often discussed reforms: term limits and changing the size of the Court. Some on the political left have been talking up the possibility of "packing the Court" in effect as a response to the Republicans' obstruction of President Obama's nomination of Merrick Garland in Obama's final year in the White House.
      Frost set the tone for the ACS panel by saying early on that she was "no fan" of either term limits or packing the Court. In any event, Democrats would pursue a change in the size of the Court only after hypothetically gaining control of both Congress and the White House after the 2020 elections. And, as evident political retaliation, a move to enlarge the Court to enable a Democratic president to appoint additional justices to change the Court's ideological balance of power moves in exactly the opposite direction of seeking to depoliticize the Court.
      Term limits for the justices have a bipartisan pedigree of sorts: law professors supporting the idea include some from the left and some from the right, for example, Steven Calabresi, co-founder of the Federalist Society. Supporters argue that fixed 18-year limits for active service on the Court would reduce the political stakes on any individual nomination by ensuring another vacancy two years afterward. In his remarks, however, Sitaraman suggested instead that term limits could make political problems worse. "It would mean that every election would be about the Supreme Court," he said.
      With structural changes such as these under consideration, some Court watchers see the politicization of the Court as the inevitable result of what many on both the right and the left consider the Court's outsized role in setting legal policy on contentious. "You need to depower the Court," the University of Chicago law professor Aziz Huq remarked at the ACS panel.
      David Kaplan, a longtime journalist and author of the new book The Most Dangerous Branch , laments what he, as a self-identified liberal, calls the Court's "aggrandizement of power" stretching from Roe v. Wade through Bush v. Gore and the Roberts Court. Barry McDonald, a professor at the generally conservative Pepperdine Law School, wrote in a New York Times op-ed that the Court has "lost sight of its limited role and the principle of judicial neutrality."
      At the ACS panel, Huq blamed liberals and progressives for relying too much on the courts. Yet in the past decade conservatives have also been quick to resort to courts. Senate Republican leader Mitch McConnell was in fact the named plaintiff in the first, unsuccessful attempt to gut the McCain-Feingold campaign finance reform. That effort eventually succeeded in the Citizens United case. Gun rights advocates made no serious attempt to repeal the District of Columbia's handgun ban before the Second Amendment challenge that ended with the Heller decision in 2008.
      However improbable the proposals for structural changes may be, it may be even more unlikely to rein in the Court's overarching role in legal and constitutional policy. In a system with a written Constitution, a written Bill of Rights, and a history of judicial review, rights-claiming parties will eventually find their way to the highest Court and the justices drawn into political conflict however they rule.

Sunday, October 21, 2018

In Georgia, Voter Suppression Seen in Governor's Race

      Welcome to the not-so-great state of Georgia, where a political candidate fox is running for governor while also supposedly protecting the integrity of the ballot box henhouse. Brian Kemp, the white Republican who superintends Georgia's election laws as secretary of state, is in a fiercely contested, racially charged contest for the governorship pitted against Stacey Abrams, the Democratic nominee who could be the state's first African American governor.
      Abrams' shot at the governorship in a red state attests to the changing demographics that have already started to turn some states from red to purple and to the strength of the anti-Trump blue wave even in states that Trump carried by substantial margins. With the Nov. 6 election now within sight and early voting already under way, the most recent poll shows Kemp with a statistically insignificant edge over Abrams: 47 percent to 46 percent, according to the Reuters/University of Virginia Center for Politics survey.
      In a race like that, every vote counts: so too every potential vote suppressed because of restrictive or inhospitable election procedures. Georgia was one of those states under special federal supervision for nearly 50 years because of its history of racial discrimination against would-be African American voters. Freed from the Voting Rights Act's preclearance requirement thanks to the Supreme Court's shamefully oblivious decision in Shelby County v. Holder (2013), Georgia has now adopted all of the second-generation devices used to suppress voting among racial and ethnic minorities.
      Despite the evident political conflict of interest, Kemp has refused pleas that he should resign as secretary of state or recuse himself from election procedure issues while he himself is on the statewide ballot. In an ordinary race or in other times, his stance might pass an ethical smell test, but not in the current partisan divide created by Republican-backed vote-suppression measures in Georgia and so many other red states.
      In the most dramatic example of voter suppression, Kemp's office supervised the purging of some 591,000 Georgians from voters rolls in summer 2017. Like other GOP election officials, Kemp refers to wholesale deregistrations as "voter list maintenance," ostensibly aimed at removing voters who have moved or passed away. A journalistic investigation showed, however, that a substantial number, around 107,000, were removed for not voting —  in arguable disregard of federal law.
      Ohio's Republican secretary of state Jon Husted was hauled into federal court and eventually to the Supreme Court for his aggressive voter purges. The Roberts Court, in its 5-4 decision in Husted v. A. Philip Randolph Institute in June, divided along partisan lines in upholding Husted's policies of initiating deregistration based on a voter's failure to vote in two successive federal elections. The applicable federal law specifies that states may not remove a voter based solely on failure to vote.
      Like Husted, Kemp follows a "use it or lose it" policy in initiating deregistration that, according to an investigation by American Public Media Reports, has disproportional impact on black voters. The APM investigation found that in six out of ten Georgia counties, black voters were removed at higher rates than white voters.
      Kemp is also now overseeing local election officials in enforcing a newly enacted Georgia law that blocks a would-be voter's registration if the applicant's information fails to perfectly match information from other sources: as inconsequential, for example, as a misspelled name or incomplete address. Some 53,000 registrations are on hold as a result: Kemp promises that the would-be voters can cast provisional ballots, but evidence from other states indicates that few voters who cast provisional ballots make the later trip needed to have their ballots counted.
      Georgia is also one of the red states to have passed restrictive voter ID laws, ostensibly aimed at the all-but-nonexistent problem of voter fraud by impersonation. In the current election, Democrats and voting rights groups have cried foul over the rejection of hundreds of absentee ballots in the minority-heavy Gwinnett County, outside Atlanta. To top it off, local election officials have closed some 214 precincts over the past six years — amounting to nearly 8 percent of the state's polling places — making it that much harder in some counties for would-be voters to cast ballots.
      Imagine, as the most dramatic example, Florida with a less punitive felon-disenfranchisement law on the books in 2000: among the 1 million-plus disenfranchised Floridians, a vote swing of fewer than 1,000 votes could have changed the course of history. In a concrete case, Wisconsin's strict voter ID law has been shown to have suppressed perhaps up to 200,000 votes in the Badger State: more than enough to have offset Donald Trump's 23,000-vote margin over Hillary Clinton in the 2016 election. In advance of the election, one Republican legislator openly boasted that the law "could make a difference."
      Strict voter ID laws held down the vote in other states as well, with results less easily to hypothesize. Again, the Supreme Court has given its ill-considered blessing to this voter-suppressive device. The 6-3 decision upholding Indiana's law Crawford v. Marion County Board of Election (2008) accepted with too little questioning the premise that photo IDs were needed to protect election security. In the years since, evidence — notably, in a Texas case — has shown that voter ID laws have disproportionate impact on racial and ethnic minority voters. The wheels of election law justice grind all too slowly, however, allowing Republicans, as in Georgia, to exploit these tactics as part of a truly un-American political strategy.