Saturday, January 20, 2018

To Make America Great, Trump Has to Go

      One year into the Trump presidency, America is not "great again," but divided at home and diminished abroad. The president's actions and statements have reduced the United States' global leadership, eroded democracy at home, weakened the country's commitment to economic and social justice, encouraged racial and religious bigotry, and deepened the ethical swamp that he promised to drain.
      These conclusions emerge in year-one assessments from, among other organizations, the respected nonpartisan human rights group Freedom House. The group's annual report, released this week [Jan. 16], paints a picture of democracy in serious crisis worldwide and endangered in the United States accompanied by a blistering critique of President Trump's policies.
      With democracy already in retreat, Freedom House blamed Trump for "the accelerating withdrawal of the United States from its historical commitment to promoting and supporting democracy." Far from promoting democracy, Trump has "expressed feelings of admiration and even personal friendship for some of the world's most loathsome strongmen and dictators" — Russia's Vladimir Putin and Filipino president Rodrigo Duterte by name.
      In the United States itself, Freedom House also found an accelerating decline in political rights and civil liberties based on a rare three-point drop from 89 to 86 in its scoring system within a single year. Trump was accused of using attacks on the media and the judiciary to threaten their legitimacy. The report cited the "pressure" on those institutions in listing the United States among 10 countries that face "turning points in their democratic trajectory" during the coming year.
      Domestic civil rights and civil liberties groups were even more dispirited in their one-year assessments. Sherilynn Ifill, president of the NAACP Legal Defense and Educational Fund, described Trump's first year as "an affront to civil rights." Ifill's article cited, among other policies, the Justice Department's reversals in key voting rights cases, including federal court challenges to Texas's voter ID law and Ohio's aggressive deregistration of inactive voters. With police and minority community relations tense in many cities, Ifill also noted Attorney General Jeff Sessions's decision to stop monitoring local police departments for violations of constitutional or civil rights.
      Trump's men at Justice, Sessions and Solicitor General Noel Francisco, also worked to diminish or challenge LGBT rights through the year, as detailed in a downcast report by the Boston-based Fenway Institute. The solicitor general's office argued in a critical Supreme Court case for giving some commercial businesses the right to discriminate against LGBT individuals based on religious or moral objections — for example, to same-sex weddings. The report also noted the administration's rescission of the Education Department policy that public schools allow transgender pupils to use bathrooms or locker room facilities based on their gender identity.
      Beyond these policy retreats, the administration has also contributed to increased religious, racial, and ethnic intolerance — most notably, in the federal court-blocked ban on travel to the United States by people from half a dozen predominantly Muslim countries. Trump has demonizied and denigrated immigrants from Mexico, Central America, and other "shithole countries." Worse, he has given aid and comfort to white supremacists by saying, after the violent confrontation with civil rights forces in Charlottesville, Va., that there were "good people on both sides."
      Trump's supporters and apologists answer this critique by pointing to his appointment of federal judges, including Supreme Court Justice Neil Gorsuch. But Gorsuch and the record first-year pace of judicial appointments bode ill for equal justice in the long term. None of the Trump judges shows much sympathy for the courts' role in protecting civil rights, and several have records of overt hostility to LGBT rights. At the Supreme Court, Gorsuch dissented from a decision to protect married lesbian couples' ability to list both women as parents on a child's birth certificate.
      Trump's defenders also cite the relatively good economic times as evidence of his success in office. But the job growth that Trump touts is actually the slowest since 2010 and wage growth has likewise been slow. In a setback for economic justice, the trillion-dollar tax cut that Trump pushed through the Republican-controlled Congress bestows most of its benefits on well-to-do taxpayers at the expense of future generations. The year-long fight over Obamacare may end with millions thrown off health insurance. Other deregulatory initiatives have reduced protections for workers, consumers, investors, and the environment.
      Meanwhile, the watchdog group Citizens for Ethics and Responsibility in Washington (CREW) labeled Trump's first year "the most unethical presidency" in U.S. history. Trump's very presence in the White House, with business interests undisclosed and undivested, amounts to an ongoing violation of the Constitution's Foreign and Domestic Emoluments Clauses, an issue that CREW is litigating in court. CREW's report notes the conflict of interest in Trump's 100-plus visits to Trump properties and the even more unsavory conflicts in the appointment of industry insiders to executive branch posts regulating their former industries.
      Trump has no interest in changing any of these policies, so the country will move again toward greatness only with a new president. Unfortunately, the two constitutional methods for removing him — the 25th Amendment or impeachment — lack political support even though most Americans disapprove of Trump's performance. A nation divided and diminished looks anxiously to the future with the very idea of America under severe stress as the Huckster in Chief makes empty promises to make America "great again." Fittingly, Trump's first year ends today [Jan. 20] with a partial government shutdown as the self-styled dealmaker balks at any bipartisan compromise to resolve the growing impasse between Republicans and Democrats on Capitol Hill.

Sunday, January 14, 2018

On Partisan Gerrymandering, Time's Up?

      Politicians have been making mischief out of legislative or congressional district maps for more than two centuries, ever since the early 19th century Massachusetts governor Elbridge Gerry unwittingly lent his name to the disreputable practice. But only now, two decades into the 21st century, has a federal court found, for the first time ever, an instance of partisan gerrymandering so blatantly political as to violate the Constitution, for that reason and no other.
      The Supreme Court first said that partisan gerrymandering might be unconstitutional as such in an inconclusive decision three decades ago, Davis v. Bandemere (1986). The justices and lower courts have struggled ever since with trying to find a manageable standard to define when political line drawing goes too far. The federal court that struck down North Carolina's congressional redistricting plan last week [Jan. 10] resolved that conundrum by boldly declaring it constitutionally unacceptable to draw lines to advantage one party or disadvantage another.
      The three-judge court's unanimous decision in Common Cause v. Rochco lifted the hopes of good-government groups that courts would finally a way to tame the beast of gerrymandering. Those hopes fell just one day later, however, with the decision by a fractured three-judge court in Agre v. Wolf [Jan. 11] to reject a similar challenge to congressional redistricting in Pennsylvania. The two cases have parallel facts: in both, Republican-controlled legislatures drew congressional districts with the undisguised intent — and the eventual effect — of imbalancing the states' congressional delegation in the GOP's favor.
      The dueling decisions underscore the Supreme Court's critical role, with two other cases already under review this term, in deciding whether courts can and should tell politicians that time's up for partisan gerrymandering. The two cases, Gill v. Whitford and Benisek v. Lamone, show that both major parties play the  game when they can. Wisconsin's Republican-controlled legislature drew legislative maps in 2011 to help the GOP win a lopsided majority in the state assembly, while Maryland's Democratic-majority legislature drew congressional district lines to leave Republicans with only one of the state's eight seats in the U.S. House.
      The legal challenge brought by the good-government groups Common Cause and League of Women Voters along with named North Carolina voters was aided by Republicans' candor in explaining their motivation in drawing new congressional district lines. Thomas Hofeller, the redistricting consultant hired by the North Carolina Republicans, candidly testified that he drew the lines "to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”
      Of the two decisions last week, Judge James Wynn's 191-page opinion in the North Carolina case is the more carefully reasoned and more carefully documented. North Carolina Republicans predictably denounced Wynn as an activist Democrat, but Wynn was appointed to his position on the Fourth U.S. Circuit Court of Appeals by President Obama with bipartisan support from the state's two senators, Democrat Kay Hagen and Republican Richard Burr. He had previously served 26 years as a Navy lawyer and 10 years on North Carolina appellate courts.
      Wynn deftly answered Justice Anthony M. Kennedy's pivotal opinion in an earlier decision, Vieth v. Jubelirer (2004), where four conservative justices voted to bar political gerrymandering challenges altogether. Kennedy joined in the 5-4 decision to reject the challenge to Pennsylvania's congressional redistricting, but left the door open to future cases while all but begging for "clear, manageable and politically neutral standards" to apply to partisan gerrymandering.
      In Wynn's analysis, no "constitutionally cognizable interest" is served by district lines that are drawn for partisan reasons and durably produce the intended partisan effect. On that basis, he concluded, "a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an 'acceptable' level of partisan gerrymandering from 'excessive' partisan gerrymandering."
      Wynn's opinion was unanimous for the most part, joined by two district court judges from North Carolina: William Britt, appointed by President Jimmy Carter, and William Osteen, appointed by President George W. Bush. Wynn concluded that North Carolina's redistricting violated voters' equal protection rights and political rights under the First Amendment and also went beyond the state legislature's authority under the clause in the U.S. Constitution giving states authority to "regulate" congressional elections. In a partial dissent, Osteen disagreed only on the First Amendment claim, which he said would bar any consideration of political affiliation in redistricting.
      The ruling in the Pennsylvania case was written by Judge D. Brooks Smith, who was appointed to the federal district court in Pittsburgh by President Ronald Reagan and  elevated to the Third U.S. Circuit Court of Appeals by the second president Bush. In his 73-page opinion, Smith insisted on the need for the still absent manageable standard for judging gerrymandering cases and instead relegated any complaints about the practice to Congress or state legislatures.
      Smith's opinion might have held water 60 years ago, but not since the Supreme Court opened the door to reapportionment cases with its initial decision in Baker v. Carr (1962). The court came up with a manageable standard for those cases: "one person, one vote," with only minimal population variations between districts. In the same way, the Court over the past 25 years has settled on a less precise rule for use of race in drawing district lines: some but not too much.
      Neither of the other two judges joined Smith's opinion. Judge Patty Shwartz, an Obama appointee to the Third Circuit, concurred in rejecting the challenge only on the ground that the voters lacked standing to challenge the overall statewide map. Judge Michael Baylson, a Republican-appointed district court judge from Philadelphia, wrote a 148-page dissent that would have rejected the Pennsylvania map as an unconstitutional gerrymander based on evidence and legal grounds parallel to those given in Wynn's opinion in the North Carolina case.
      Baylson opened his dissent with a plaintive cry. Gerrymandering, he wrote, "is a wrong in search of a remedy." Political reform is not impossible: several states have moved toward independent commissions to draw legislative and congressional districts. But the United States inherited from the English common law the fundamental principle that for every wrong, there must be a remedy. The Supreme Court can provide a remedy and, because it can, it must. Gerrymandering: your time is up.

Sunday, January 7, 2018

Trump Plays Fast and Loose With 1st Amendment

      The staff assistant assigned to brief presidential candidate Donald Trump on the U.S. Constitution is reported to have gotten only as far as the Fourth Amendment before Trump's attention flagged, according to the account in the tell-all book Fire and Fury by journalist Michael Wolff. "I got as far as the Fourth Amendment," Sam Nunberg is quoted as saying, "before his finger is pulling down on his lip and his eyes are rolling back in his head."
      Apparently, Trump's attention was wandering even earlier. His actions as candidate and as president demonstrate that he lacks any understanding of the First Amendment —  at least, the prohibition against abridging the freedom of the press.
      The most recent evidence of Trump's ignorance of, or indifference toward, freedom of the press comes from his lawyer's letter [Jan. 3] threatening a lawsuit to try to ban Wollf's book. Charles Harder, the Beverly Hills lawyer in the lawsuit that put the gossip site Gawker out of business, warned the Henry Holt publishing house on Trump's behalf of a possible suit to prevent publication of the book because of allegedly libelous material about Trump.
      Harder had sent a similar cease-and-desist letter to ex-Trump aide Stephen Bannon the day before, threatening the fired White House adviser with legal action for allegedly violating a nondisclosure agreement signed before signing up with the Trump campaign. Bannon is quoted extensively in Wolff's book with sharp criticisms of the man he helped install in the Oval Office.
      Both letters, written presumably with Trump's knowledge and approval, play fast and loose with the First Amendment's protections for freedom of speech and freedom of the press. The enforceability of nondisclosure agreements is a recurrent and somewhat murky issue in employment and trade secret law. The judicial precedents against prior restraints, on the other hand, are well established and well known and leave no room for courts to ban a book or a newspaper story except in the most extraordinary circumstances.
      Legal journalist Colin Kalmbacher summarized the major decisions in commentary published on Dan Abrams' legal news site Law and Crime. Recapping from Media Law 101, Kalmbacher recalled that the Supreme Court first extended the First Amendment to state governments in a decision, Near v. Minnesota (1931), that struck down a local ordinance prohibiting the publication of a "malicious, scandalous, or defamatory newspaper."
      Trump's displeasure with Wolff's book parallels the history in Near. The case originated with an effort by Minneapolis officials in 1927 to invoke what was called the "Minnesota Gag Law" to shut down The Saturday Press, a muckraking rag published by the openly anti-Semitic J.M. Near. The local judge issued an order ordering the newspaper to suspend publication, an order that the Minnesota Supreme Court upheld.
      As a First Amendment hero, Near falls far short of the ideal, but the U.S. Supreme Court's decision in his favor is a landmark in First Amendment law and a shield for all who claim its protections against government censorship. Writing for the 5-4 majority, Chief Justice Charles Evans Hughes said that the First Amendment allows a court-imposed prior restraint only if the publication would reveal critical military information, amount to obscenity, or directly incite violence.
      Kalmbacher noted a second precedent: the 9-0 decision in Nebraska Press Ass'n v. Stuart (1976) that threw out a judge's order prohibiting coverage of a high-profile murder trial. Oddly, Kalmbacher skipped over the more applicable precedent five years earlier in the Pentagon Papers case. The 6-3 decision in New York Times v. United States (1971) rejected the Nixon administration's effort to prevent the Times and the Washington Post from publishing excerpts of the classified study of Vietnam War policymaking.
      Those precedents leave no room whatsoever for Trump or his lawyer to block publication of Wolff's book even if the still unspecified defamatory statements meet the stringent "actual malice" standard of the earlier precedent, New York Times v. Sullivan (1964). In any event, the publishing house responded not by cowering in fear, but by moving the book's publication date up to Friday [Jan. 5].
      Charles Tobin, a Washington, D.C., lawyer who represents media interests, similarly doubted Trump's ability to silence Bannon under the supposed nondisclosure agreement. The case law establishes that a prior restraint is allowed only if "a government interest of the highest order" is at stake, Tobin explained. "The interest of a thin-skinned president" would not meet that standard, he reasoned.
      The legal basis for Harder's letters was so weak as to raise questions why he wrote them at all. The letters, Tobin suggested, "were more about public image and political grandstanding than legal merit." By week's end, Trump had sued neither Bannon nor Henry Holt. Several news stories noted Trump's penchant for threatening to file legal actions without ever actually filing them.
      Legal bluster may be part of the game for real estate developers or TV celebrities, but Trump is no longer private citizen. As president of the United States, he took an oath to "preserve, protect, and defend" the Constitution of the United States, including the First Amendment. Wolff's book summed up the views of many in Trump's circle that he was and remains unfit for the office. Day by day, tweet by tweet, Trump proves his critics to be right, whether they are inside or outside the White House.

Sunday, December 31, 2017

A Lawless President Meets the Rule of Law

      President Trump's job approval rating stood at 43 percent in early March when his Supreme Court nominee, Judge Neil Gorsuch, congratulated him in a personal letter for getting off to "a good start." In fact, Trump's year in office has been rocky from the very start, with job approval ratings at historic lows for a new president, no significant victory in Congress until the deeply unpopular tax bill just signed into law, and a continuing succession of defeats in the courts.
      Gorsuch sent Trump his sycophantic note, dated March 2 but unearthed by reporters for the Washington Post only this month [Dec. 19], with the president already off to a poor start in federal courts. Two federal district court judges in separate cases had issued rulings weeks earlier in February to block as unconstitutional the president's much touted executive order aimed at barring travelers from six majority-Muslim countries from entering the United States.
      Those rulings came from veteran federal judges appointed by presidents of different parties: James Robart, named to the federal court in Seattle by President George W. Bush, and Leonie Brinkema, appointed to the federal court in Alexandria, Va., by President Bill Clinton. Federal appeals courts similarly blocked the ban, even after a revision.The Supreme Court gave the administration a partial victory with a 6-3 decision in Trump v. International Refugee Assistance Project that allowed the order to take effect, but somewhat narrowed; Gorsuch was among three dissenters in the June 26 decision who voted to uphold the order as written.
      Federal judges have been the unsung heroes of the resistance to Trump, not because of political disagreements but because of their commitment to the rule of law — in contrast to the often lawless president. As candidate and as president, Trump has shown himself to be largely ignorant of the legal process and deeply contemptuous of constitutional rights and legal rules.
      As candidate, Trump ostentatiously promised "a total and complete shutdown of Muslims entering the country." Federal judges in the later travel ban cases — Theodore Chuang in Maryland and Derrick Watson in Hawaii, both appointed by President Barack Obama — noted Trump's campaign statements in finding impermissible religious discrimination behind the eventual executive order. Trump criticized both decisions.
      During the campaign, Trump also demonstrated his own racial prejudice by imputing bias to the Mexican-American judge presiding over the civil lawsuit against his so-called Trump University. Judge Gonzalo Curiel was born in Indiana to Mexican immigrant parents, but Trump called the judge a "Mexican" and a "hater" who was biased against him because of his support for building a wall at the U.S.-Mexico border.
      As candidate and as president, Trump repeatedly promised to roll back federal regulations, especially those promulgated under environmental protection laws. But the administration has been stymied in several cases as federal courts have faulted Trump agencies for failing to comply with well established administrative procedures.
      In one example, the federal appeals court for the District of Columbia on July 3 blocked the Environmental Protection Agency (EPA) from suspending enforcement of a year-old rule regulating emissions from oil and gas wells in an effort to limit greenhouse gases into the atmosphere. The D.C. Circuit's 2-1 decision in Clean Air Council v. Pruitt, with Democratic appointees in the majority and a Republican appointee in dissent, held that the EPA had no inherent authority to suspend a rule, absent special circumstances, during proceedings to reconsider it.
      Three months later, a federal magistrate judge in San Francisco similarly blocked the Interior Department from delaying compliance with a regulation to prohibit the "flaring" by oil and gas companies to burn off waste methane. A New York Times story said the decision by Judge Elizabeth LaPorte marked the third time that the EPA or the Interior Department had been found to have acted illegally in seeking to roll back environmental regulations. Reporter Eric Lipton said the administration had also retreated in three previous instances when proposed rollbacks were challenged in court.
      Earlier, the administration had suffered a rebuff on one of its own policies: an executive order issued by Trump in his first weeks in office to cut off federal funds for so-called "sanctuary cities" that limit cooperation with immigration authorities in apprehending undocumented aliens. In an April 25 ruling, U.S. District Court Judge William Orrick in San Francisco called the total cutoff of funds "unconstitutionally coercive." Trump called the ruling "ridiculous," but Orrick broadened it on Nov. 21 into a permanent nationwide injunction against the policy.
      The string of judicial reversals continued with a sharp rebuke of Trump's peremptory ban on transgender individuals in the military. In an Oct. 30 ruling, U.S. District Court Judge Colleen Kollar-Kotelly blocked enforcement of Trump's Aug. 25 memorandum. The president issued the memorandum, the judge said, "without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes . . . ." The week before Christmas, the D.C. Circuit rejected the administration's plea to stay the lower court order.
      Trump has built his presidency on a continuing campaign against institutions that slow or block his autocratic impulses: the courts, the bureaucracy, the news media. Speaking as president, he has encouraged police to rough up suspects and threatened to challenge television networks' broadcast licenses. "His idea of the presidency," Corey Brettschneider, a political scientist at Brown University, remarked to The New York Times, "is, he was elected and he can do whatever he wants."
      The United States is a country of laws, not of men. One year into a Trump presidency, the rule of law has held, but Trump's unmanageable ego ensures that more challenges lie ahead.

Friday, December 22, 2017

On LGBT Rights, Trump's America Not So Great

      The movement to gain equal rights for LGBT Americans amounts to the third of the great twentieth-century civil rights movements in the United States after the earlier, still unfinished struggles for racial and gender justice. The gay rights movement, to use the less inclusive terminology of earlier decades, encountered resistance that, if anything, was and remains deeper-seated than the opposition to racial desegregation or equal rights for women.
      LGBT rights advocates made slow gains beginning in the 1980s with passage of some local or state laws to prohibit discrimination based on sexual orientation. Progress has come more quickly over the past two decades with, among other milestones, the two closely divided Supreme Court decisions invalidating state anti-sodomy laws and two years ago establishing marriage equality for gay or lesbian couples.
      Back in 2000, when the White House was no more than a gleam in Donald Trump's eye, the future president envisioned in his political manifesto "The America That We Deserve" an America that would be free of “racism, discrimination against women, or discrimination against people based on sexual orientation.” As presidential candidate in 2016, Trump sent mixed signals: he favored LGBT rights in occasional statements, but aligned himself with anti-LGBT groups by endorsing "traditional marriage" and opposing transgender bathroom rights.
      With Trump in the White House, no one expected him to put much if any effort behind expanding LGBT rights. Still, LGBT advocates hoped, somewhat plausibly, that he would not try to turn the tide against the recent gains.
      Instead, Trump has marked his first year in office with a number of unforced initiatives to reverse course on LGBT rights. Worse, Trump' record-setting number of appointments to the federal bench includes many nominees — most prominently, Supreme Court Justice Neil Gorsuch — with records of opposing LGBT rights or embracing legal ideologies hostile to or skeptical of LGBT equality.
      To begin, two of Trump's Cabinet members, Education Secretary Betsy DeVos and Attorney General Jeff Sessions, joined in rescinding the Obama administration guidance that public schools allow transgender pupils to use bathrooms and locker room facilities based on their gender identity. The move forced the justices to shelve a case set for argument in March that could have established nationwide law on the issue.
      In a later about-face, the Justice Department shifted the government's position in the closely watched case testing a Colorado baker's right to refuse to make a wedding cake for a gay couple. The government's amicus brief filed in September stopped short of endorsing an open-ended religious freedom exemption from anti-LGBT discrimination laws, but embraced the baker's tenuous First Amendment claim to avoid being forced into symbolically embracing a marriage contrary to his faith-based views.
      With the Court precariously divided on LGBT rights, the government's position could help the four anti-marriage equality conservatives, including Chief Justice John G. Roberts Jr., to pull the free-speech loving Justice Anthony M. Kennedy into a five-vote majority. A narrow ruling for the baker might be written off as only a minor setback, but the eventual impact would depend on its interpretation in lower courts by judges,
      Many judges, in state and federal courts, are relics of the old anti-LGBT views. Others, including most of Trump's judges, are doctrinaire adherents of narrow views that allow little if any room for protecting LGBT rights.
      Gorsuch is a prime example of Trump's anti-LGBT judges, as noted in an end-of-year compilation by Lambda Legal. As a federal appeals court judge on the Tenth Circuit, he joined in rejecting a constitutional claim by a transgender inmate in Oklahoma to be allowed to dress in feminine clothing as she requested. More broadly, Gorsuch joined in an Affordable Care Act case in embracing the kind of religious exemption that anti-LGBT groups seek from LGBT rights measures. And, in his writing, Gorsuch has sharply criticized the kind of civil rights impact litigation that helped establish marriage equality as the law of the land.
      Gorsuch won Senate confirmation by a narrow 54-45 vote: one of the closest margins ever for a justice. Other Trump judges were confirmed on even closer party-line votes, with Republicans in lock-step support and Democrats sometimes in unanimous opposition. Lambda Legal joined with other civil rights groups in highlighting anti-LGBT votes from some Trump nominees who had served on state courts. As examples, Don Willett, confirmed for the Fifth Circuit, had voted on the Texas Supreme Court against equal employee benefits for same-sex couples. Joan Larsen, confirmed for the Sixth Circuit, had voted on the Michigan Supreme Court against second-parent adoption rights for same-sex couples.
      Among others, Kentucky lawyer John Bush was criticized for "homophobic" language in blog posts written before his successful nomination to the Sixth Circuit. Nebraskan Steven Grasz won confirmation to the Eighth Circuit despite criticism for his close ties to the anti-LGBT Nebraska Family Alliance and his unqualified rating from the American Bar Association. Colorado's Alison Eid and Pennsylvania's Stephanos Bibas, confirmed for the Tenth and Third Circuit respectively, were cited for general views akin to Gorsuch's rights-confining originalism and skepticism of civil rights litigation.
      LGBT groups can claim victories in the recent withdrawals of three Trump nominees, including Jeff Mateer, the assistant Texas attorney general who notoriously described transgender individuals as "part of Satan's plan." Mateer's intemperate views proved too much even for the Senate's compliant Judiciary Committee chairman, Iowa's Charles Grassley, to swallow.
      Trump has sought out young nominees, some even in their 30s, in hopes of leaving a decades-long legacy on the federal bench. With lifetime appointments, Trump's judges can help slow or possibly even reverse the hard-won legal gains for LGBT Americans.
      Those gains give substance to the goal carved in marble above the entrance to the Supreme Court: "Equal Justice Under Law." If ever achieved, that would make America great — not again, but greater than ever before. Sadly, Trump's record on issues ranging from LGBT rights to economic policy suggests no role for equal rights in his backward march toward a not-at-all great America. 

Sunday, December 17, 2017

As Liar-in-Chief, Trump Leads Assault on Democracy

      Truth is said to be the first casualty in wartime. With Americans engaged with each other in the most contentious political and cultural wars since the Civil War, truth is now under siege in the United States as never before in an assault led with deliberate malevolence by the nation's liar-in-chief, Donald J. Trump.
      Those of us who came of age during the Vietnam War remember the exaggerated body counts of Viet Cong killed or captured that the Pentagon issued in briefings that reporters openly mocked as the Five O'clock Follies. The blatant unbelievability of the numbers put "credibility gap" into the political lexicon and left a lasting stain on President Lyndon B. Johnson's legacy.
      With Donald Trump as president, a new truth-denying term has been coined: Kellyanne Conway's "alternative facts." As Conway's phrasing suggests, Trump's assault on truth is more than exaggeration or spin, but a direct assault on the very concept of objective, verifiable truth. And two recent exposés — one by a sociologist expert on liars and another by The New York Times — have documented that Trump lies in a uniquely reckless manner and at a rate unheard of in American political history.
      Trump's lies reflect more than a grievous character flaw or a relic of his earlier careers as real estate huckster and "reality show" star. His so-called "difficult relationship with the truth," as one Democratic lawmaker phrased it this week, represents instead a recognized technique of authoritarian control, according to political scientist Brian Klaas in his new book Despot's Apprentice.
      Klaas, a U.S. scholar now at London School of Economics who has studied authoritarianism up close in a dozen countries, reminds readers that truth-denial was the hallmark of Big Brother's totalitarianism in George Orwell's dystopian novel 1984. But Klaas has also seen the technique in practice in real life. He recalls that the Zambian dictator Frederick Chiluba responded to a failed military coup in 1997 by falsely depicting the leader as acting out of drunken foolishness rather than substantive disgruntlement with Chiluba's regime.
      In like vein, Klaas draws the historical parallel between Trump's monotonous attacks on "FAKE NEWS" — all caps in Trump's tweets — and Adolf Hitler's ominous attacks on Lugenpresse or "lying press" as he consolidated control. In a more recent parallel, Klaas notes that the Venezuelan democrat-turned-dictator Hugo Chavez denounced his critics as "enemies of the homeland" just as Trump now terms his news media critics as "enemies of the people."
      The so-called "failing" New York Times undertook to quantify Trump's lies in an exhaustive account published online this week [Dec. 14] and scheduled to appear in Sunday's print edition [Dec. 17]. Applying a somewhat strict standard — intentional misstatements of objectively disprovable falsehoods — the Times counted 103 lies from Trump since his inauguration ranging from his false claim to having opposed the Iraq war to the more recent incorrect description of the United States as "the highest taxed nation in the world." Applying the same standard of intentional falsehoods, the Times counted only 18 lies by President Obama during his eight years in the White House.
      Most of the Trump lies on the Times' list serve an evident political purpose, like his claim to have won the popular vote in 2016 except for the supposed 3 million to 5 million ballots casts illegally. Others seem too trivial to matter, such as his erroneous statement that the Times recorded Sen. Bob Corker's harsh critique of Trump without the Tennessee Republican's knowledge.
      A week before the Times' compilation, a social scientist put an academic gloss on Trump's lies in a Sunday opinion section piece in The Washington Post [Dec. 10] that bore the headline "I study liars. I've never seen one like President Trump." Bella DePaulo, a sociologist affiliated with the University of California-Santa Barbara, concluded that Trump's lies "are both more frequent and more malicious than ordinary people's."
      DePaulo adopted the looser standard used by the Post's "Fact-Checker" to count 1,628 false or misleading claims in the president's first 298 days in office. Nearly two-thirds of Trump's lies DePaulo characterized as self-serving, such as his description of Vietnamese lined up "in the thousands" to greet him on his trip to the Southeast Asian nation. In addition, DePaulo counted "an astonishing 50 percent" of Trump's lies as "hurtful or disparaging," often needlessly so, such as his recent description of respected intelligence community officials John Brennan, James Clapper, and James Comey as "political hacks."
      DePaulo concluded by pronouncing Trump guilty of "violating some of the most fundamental norms of human social interaction and human decency." The Times' writers David Leonhardt and Stuart A. Thompson note that Trump's political career began with the "birtherism" lie that Obama was born outside the United States and that his lies remain central to the Russiagate investigation. "No other president — of either party  — has behaved as Trump is behaving," the Times writers conclude.
      Klaas depicts Trump's lies as one of many practices that he has borrowed, apprentice-like, from other despots, such as narcissism, nepotism, cronyism, and personal enrichment. He concludes with cautious confidence that the United States' political and constitutional norms are strong enough to prevent full-scale authoritarianism in Washington. But "democratic decay" has already set in, Klaas warns, and democracy "needs to be saved — before it is too late."

Sunday, December 10, 2017

In Gay Wedding Cake Case, Equal Rights at Stake

      Every trial lawyer knows the key to success in the courtroom is a good story to engage the sympathy of jury, judge, or both. So the opposing parties in the gay wedding cake case at the Supreme Court rushed from the courtroom last Tuesday [Dec. 5] to waiting news cameras and microphones to try to sell their competing stories of victimhood to the American public.
      Charlie Craig and David Mullins, the gay couple turned away five years ago in their search for a cake for their pre-wedding reception, introduced themselves as "regular guys" with no agenda other than a desire to be treated equally, as Colorado law seemingly requires. Craig and Mullins had come to Jack Phillips' Masterpiece Cakeshop in the Denver suburb of Lakewood that summer day because they liked the cakes Phillips had displayed in the bakery's catalogue.
      At the other end of the sidewalk, Phillips was explaining that he had "respectfully" declined to make a cake for the couple once he learned that the cake was to celebrate a wedding that his Christian faith prohibited. Down at the other end, Mullins recalled that he and Craig were "stunned" by Phillips' refusal and still pained by "the memory of the humiliation, the mortification."
      Craig's mother had accompanied the couple to the bakery and attested to her son's shock that day. "I saw that my grown son was starting to shudder," Debbie Munn recalled. "We don't want another couple to go through"  that kind of treatment, Mullins said as he wrapped up the news scrum.
      Down the sidewalk however, Phillips was himself donning the cloak of victimhood. He and his family had suffered years of "harassment" after having been found to have violated the state's civil rights law, Phillips told the reporters and assembled spectators. He also took a substantial financial hit by dropping wedding cakes altogether to avoid further legal entanglements.
      Inside the courtroom, the Court's liberal and conservative blocs used their questions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission to construct opposing stories aimed at framing the legal issue best for their opposing sides. Liberal justices Sonia Sotomayor and Elena Kagan warned that ruling in favor of Phillips' compelled-speech doctrine argument would open the door to pleas for similar civil rights exemptions for photographers, florists, chefs, make-up artists, and hair stylists with religious scruples to participating in same-sex weddings.
      Some of those scenarios might seem even less plausible than viewing a cake as speech, but in fact a florist in Washington and a photographer in New Mexico had earlier claimed religious exemptions from their state laws, like Colorado's, that prohibit discrimination on the basis of sexual orientation. The supreme courts in those states spurned the pleas, and the U.S. Supreme Court declined to take up the florist's or the photographer's appeals.
      From their side, conservative justices conjured up sympathetic hypotheses about other kinds of individuals who they said might be forced into conscience-straining services if the Court found that Colorado's civil rights law trumps First Amendment pleas. Justice Neil Gorsuch suggested that an African American baker might be forced into baking a cake adorned with a Ku Klux Klan cross. Justice Samuel A. Alito Jr. raised the possibility that  a Jewish baker might be forced to decorate a cake to commemorate Kristallnacht, the Nazi-inspired destruction of Jewish synagogues and businesses in 1938.
      Those hypotheses were enough to help persuade at least one prominent newspaper to take Phillips' side. "Imagine a Jewish baker being required to put a swastika on a cake," the Chicago Tribune wrote in an editorial. As Lambda Legal attorney Eric Lesh noted in a tweet, however, "Nazis are not a protected class." David Cole, the ACLU lawyer representing Craig and Mullins, made the same point during oral argument. "The Ku Klux Klan as an organization is not a protected class," Cole responded.
      Cole began his allotted 15 minutes by acknowledging the sincerity of Phillips' convictions about same-sex marriage but warning that a ruling in his favor would have "unacceptable consequences." He echoed a concern that Justice Elena Kagan had raised that the same religious-based objection might be raised, for example, against providing services for a gay funeral. And he rejected as impossible any effort to draw a line between valid and invalid refusals based on the supposed "expressive content" of a cake as opposed to flowers or makeup or whatever.
      From the start of what proved to be 90 minutes of arguments, all eyes were naturally on Justice Anthony M. Kennedy, the author of the Court's four landmark gay rights opinions over the last 20 years and the Court's most consistent defender of free-speech rights. He gave conflicting signals about his eventual vote.
      Kennedy signaled sympathy for Phillips at one point by complaining of a remark that one of the seven Colorado civil rights commissioners had made criticizing the use of "religious rhetoric" to deny equal rights. At another point, the justice aptly noted that a bakery that posted a sign "no gay weddings" would be "an affront to the gay community."
      Along with Alito and Gorsuch, Chief Justice John G. Roberts Jr. clearly signaled sympathy for Phillips; Clarence Thomas, silent as usual, was also counted as a likely vote. But none of the conservatives seemed to offer a clear line that, as Justice Stephen G. Breyer put it, "will not undermine every civil rights law."
      The case, it turns out, is not about a cake. It is about equal rights, just as Craig and Mullins have maintained throughout. With many observers predicting a ruling for Phillips, the real victim in the case could be the advancing national commitment to equal rights for LGBT individuals.