Sunday, June 17, 2018

At Supreme Court, Justices Clash on Right to Vote

      Viewed in strictly political terms, the Supreme Court's decision on Ohio's aggressive program of removing nonvoters from registration rolls was easy to predict  and the predictions proved to be right. Five Republican-appointed conservative justices voted to uphold a program that the state's Republican secretary of state touted as having removed 1 million people from voter rolls over three election cycles. But four Democratic-appointed liberal justices found the program to be in violation of a federal law that prohibits deregistering voters "by reason of a failure to vote."
      Writing for the majority in Husted v. A. Philip Randolph Institute [June 11], Justice Samuel A. Alito Jr. wrapped himself around what he saw as the clear meaning of overlapping statutory provisions from two federal laws passed a decade apart aimed, respectively, at making it easier to register to vote or actually to vote. He and his conservative colleagues saw in those laws permission for Ohio to warn non-voters that they would be removed from registration rolls unless they returned a mailed notice to prove their current residence.
      Unsurprisingly, given human nature, the vast majority of Ohioans who received those notices tossed the notices without returning them. Those who failed to vote in the next two elections were purged from the registration rolls: more than 1 million, by Husted's count, from the time of his election to the post in 2010 up to the beginning of the legal challenge to the procedure in 2015.
      Alito concluded a complex dissection of the two federal statutes involved by insisting that the liberal justices' dissent amounted to a "policy disagreement" rather than a different reading of the statutory provisions. He was right, but wrong in his diagnosis. The justices' policy difference turns not on the mechanics of updating registration rolls, but on the priority that the liberal bloc places on the right to vote itself.
      The liberal justices seem to have a better appreciation than the conservatives of the many hard battles fought to win and protect the right to vote from Seneca Falls in the 19th century to Selma in the 20th. As seen in the Court's decisions upholding voter-ID laws, the conservatives have too readily accepted the unsubstantiated fear of voter fraud spread for partisan reasons by Republican politicians and conservative interest groups. The liberal justices see the right to vote as too important to sacrifice to the partisan interests of those with an un-American distrust of the expanded franchise.
      Given Ohio's importance as a battleground state, the Court's decision is politically significant of itself in its implications for future elections. But it takes on more significance by giving election officials in other states a roadmap if they want to emulate Ohio's Jon Husted in bragging not about registering more voters but about removing once-qualified voters from registration rolls.
      Alito's claimed fidelity to congressional enactments strains credulity given the stated goal of the first of the two federal laws at issue. The National Voter Registration Act, enacted in 1993 and better known as the Motor Voter Act, was most prominently aimed at increasing voter registration. The law required states to allow would-be voters to register at sites used for obtaining driver's licenses or obtaining public assistance.
      Along with those provisions, the 1993 law also required states to establish a "general program" for updating voter registration rolls — specifically by making "a reasonable effort" to remove voters who become ineligible by changing their residence. But the act's Failure-to-Vote Clause specifically prohibited removing any registered voter "by reason of the person's failure to vote."
      The Help America Vote Act, enacted in 2002 with the Florida vote-count fiasco in mind, was aimed primarily at helping state and local election officials upgrade and safeguard their voting and vote-counting machinery with the assistance of a new federal agency, the Election Assistance Commission. The law also included a provision that either reinforced or merely clarified the Failure-to-Vote Clause by providing that no registrant be removed "solely by reason of a failure to vote."
      Writing for the four liberal dissenters, Justice Stephen G. Breyer argued that Ohio's procedure removed registered voters "by reason of" their failure to vote: the very reason they were selected for what he called the "last chance" notices. Alito countered by emphasizing the adverb "solely" in the later law: removed only for failing to confirm their residence, not for non-voting. Breyer had what ought to have been a convincing rebuttal: the state's effort to verify residence was not "reasonable," as the 1993 law required.
      Out of more than 1.5 million notices mailed out, fewer than one-third were returned, Breyer noted, with 60,000 confirming a change of address and 235,000 verifying their listed residence. It was unreasonable, Breyer argued, to assume that the 1 million-plus Ohioans who tossed the notices without returning them had moved. Indeed, he mocked the idea that 13 percent of Ohio's voting population had moved in a matter of years. "[T]he streets of Ohio's cities are not filled with moving vans," he wrote.
      In a separate dissent, Justice Sonia Sotomayor cut to the chase by noting the disparate impact of Ohio's procedure: 10 percent of voters removed in African-American neighborhoods in Cincinnati compared to 4 percent in a majority-white suburban neighborhood. Alito's terse response: Sotomayor's concerns were "misconceived." The question naturally arises: what part of voter suppression do the conservatives not understand?

Saturday, June 9, 2018

In Wedding Cake Case, an Advance for Gay Rights?

      Justice Ruth Bader Ginsburg opened her dissent from the Supreme Court's decision in the gay wedding cake case by saying that she agreed with "much" of Justice Anthony M. Kennedy's opinion for the 7-2 majority. Among other losers, David Cole, national legal director of the American Civil Liberties Union, went further. "We lost the battle, but we won the war," he wrote in an op-ed for newspapers.
      Gay rights advocates in fact walked off with a win of sorts in this week's Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission [June 4], but it is only a beginning, not the end of the war with anti-gay religious conservatives.
      Kennedy opened the substantive sections of his opinion by picking a winner between same-sex couples seeking goods and services for their weddings and Christian business operators unwilling to serve them because of "religious and philosophical objections." Writing with black-letter law certitude, Kennedy declared, as a "general rule," the primacy of civil rights law. "Such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law," he wrote.
      In advance of that general rule, Kennedy made clear that gay persons and gay couples can be — "and in some instances" must be — protected in the exercise of their civil rights. "Our society has come to the recognition," Kennedy wrote and read forcefully from the bench, "that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth."
      A victory, to be sure, but only in those 19 states that include protection for sexual orientation in their public accommodation laws. In the others, same-sex couples denied service have no recourse even if a business operator does not couch bias in religious terms.
      In this case, Charlie Craig and David Mullins end with little to show for the indignity they suffered back in July 2012 when the devout Christian baker Jack Phillips dismissed them from his Masterpiece Cakeshop in suburban Denver. Instead of dwelling on that indignity, however, Kennedy focused on what he and six other justices saw as the "clear and impermissible hostility" that the Colorado Civil Rights Commission and the state's court system showed toward Phillips' religious beliefs.
      That hostility consisted in part of remarks by two civil rights commissioners from the two meetings back in 2013 when the seven-member commission considered the staff's recommendation to find Phillips guilty of having violated the state's anti-discrimination law. One commissioner suggested, in Kennedy's summary, that Phillips needed to change his "personal belief system" to do business in the state. The other declared, more provocatively, that religion had been used through history to justify discrimination — including slavery and the Holocaust.
      Kennedy and the others — all but Ginsburg and her dissenting colleague Justice Sonia Sotomayor — found these remarks objectionable, all the more so because no commissioners objected and the state never disavowed them. Further evidence of hostility was the commission's decision not to charge three bakers with civil rights violations by rejecting a customer's religion-based requests for a cake with explicit anti-gay marriage inscriptions.
      Those cases were readily distinguishable from Phillips' even if the rationale was poorly expressed by the commission. And Ginsburg found the commissioners' comments similarly no reason for absolving Phillips for the refusal to serve Craig and Mullins. But Kennedy and the others were so confident in their view that they invalidated the commission's order with no remand to allow reconsideration with the claimed hostility toward religion removed.
      Despite the reversal, experts at the annual meeting of the progressive American Constitution Society this week [June 8] saw more silver lining than cloud. "In many ways, the decision was exactly what we needed--legally and politically," said Shannon Minter, legal director for the National Center for Lesbian Rights. With the reversal, "religious conservatives feel they have been seen and heard," Minter said, and further to the good they have been "deprived of the opportunity to feed a grievance strategy."
      In a quick confirmation of the civil rights groups' optimistic reading of the decision, the Arizona Court of Appeal cited Kennedy's "general rule" in a decision on Thursday [June 7] rejecting a Phoenix stationery store's plea for an exemption from serving same-sex couples. "If appellants . . . want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation," the court wrote in Brush & Nib Studio LC. v. City of Phoenix.
      Kennedy closed his opinion with an even-handed admonition that future cases of the sort "must be resolved with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." But religious conservatives responded to the decision with exultant claims of victory belying the hoped-for tolerance. In Tennessee, a hardware store owner in a small, remote county posted the kind of sign that Kennedy had warned against: "No Gays Allowed."
      The Supreme Court has seen this story before: the "all deliberate speed" rule to dismantle racial segregation in public education turned into decades of resistance and foot-dragging. With an ambivalent victory, gay couples can expect the same for the foreseeable future.

Sunday, June 3, 2018

Thomas's Lone-Wolf Call to Abolish Exclusionary Rule

      Supreme Court Justice Clarence Thomas wants to abolish the most important legal rule that protects Americans from illegal searches by police. Writing only for himself in a decision last week [May 21], Thomas argued in a nine-page concurring opinion that the oft-criticized exclusionary rule for suppressing illegally obtained evidence has no historical basis and the Supreme Court no authority to require states to adopt it.
      Thomas prefaced his opinion in Collins v. Virginia by agreeing that Charlottesville, Va., police officers had violated Ryan Collins' Fourth Amendment rights by conducting a warrantless search in the driveway of his girlfriend's home that uncovered a stolen motorcycle. But in Thomas's telling, the Framers of the Constitution "would not have understood the logic of the exclusionary rule" — the century-old rule that bars the use of illegally obtained evidence in federal courts.
      The Supreme Court used its supervisory power over federal courts to adopt the exclusionary rule in Weeks v. United States (1914), Thomas recites the subsequent developments. Three decades later, the pre-Warren Court refused on a 6-3 vote to impose the exclusionary rule on states in Wolf v. Colorado (1949). Twelve years later, however, the Warren Court launched the criminal procedure revolution by overruling Wolf with its 5-3 ruling in Mapp v. Ohio (1961). to require states to rule any evidence obtained in violation of the federal Constitution inadmissible in state criminal trials.
      Thomas relates these developments as though in answer to a legal history exam, with only a single footnote about the potential impact of abolishing the exclusionary rule. Without that rule, Ryan Collins would still stand convicted of receiving stolen property despite the constitutional violation. He would have no recourse except a civil suit against the police officers who conducted the illegal search or perhaps a disciplinary proceeding against the officers.
      As to civil suits, the Court's recent decisions on qualified immunity protect police from liability for all but the most clear-cut constitutional violations, In Collins' case, for example, the dissenting justice Samuel A. Alito Jr. argued that the two Charlottesville officers were "entirely reasonable" in going on to the driveway to pull off the tarpaulin that shielded Collins' motorcycle from public view.
      Writ large, abolition of the exclusionary rule would surely encourage police officers to give less regard to the sometimes difficult-to-discern Fourth Amendment rules as to what amounts to an "unreasonable" search. The recent history of police practices — think about the continuing toll of unarmed civilians killed in police encounters or the uncounted number of innocent pedestrians subjected to "stop and frisk" pat-downs — argues strongly against loosening rules aimed at controlling police conduct.
      Thomas blithely suggests in a last-page footnote, however, that state tort law, state criminal law, federal civil rights suits, and police discipline are all "effective deterrents" against Fourth Amendment violations by police. "The problem before Mapp was there weren't any remedies," says Orin Kerr, a Fourth Amendment expert at George Washington University Law School.
      Thomas's originalist critique breaks no new ground. "I didn't see anything new," says Kerr. It would draw no more interest than the most recent Twitter exchange among original meaning cultists but for the likelihood that Thomas has at least another 10 years to try to find five votes for his view and the supposition that Thomas now thinks that a realistic possibility.
      For now, none of the other justices is ready to abolish the exclusionary rule, not even Thomas's newfound pal, Neil Gorsuch. "I don't see it as something likely to happen any time soon," says Kerr. Among the many other lone-wolf opinions that Thomas has written in 27 years on the Court, however, one stands out as having helped get the ball rolling on a major change in constitutional law.
      When the Court struck down part of the Brady Handgun Violence Prevention Act in in Printz v. United States (1997), Thomas called in a short concurring opinion for reconsidering the 60-year-old precedent that the Second Amendment did not establish a personal right to possession of firearms. A decade later, Thomas was part of the five-justice majority that adopted that view in District of Columbia v. Heller (2008) and then, two years later, enforced the same gun-rights protective view to state and local governments in McDonald v. Chicgo (2010).
      In his new opinion, Thomas acknowledges that the Mapp Court described the exclusionary rule as "an essential part of the Fourth and Fourteenth Amendments." But he cites a string of subsequent decisions as contradicting what he calls the Court itself has called Mapp's "expansive dicta
."       Thus, through the years, the Court has carved out exceptions to the exclusionary rule, including several from the Roberts Court. In Roberts' first term, for example, the Court issued a 5-4 ruling in Hudson v. Michigan (2006) that an acknowledged  violation of the Fourth Amendment-derived "knock and announce" rule did not require suppression of the evidence police found after barging in to a private home without warning.
      For now, the Roberts Court has been "strong on the right," according to Kerr, but "weak on remedies." Thus, in Collins' case, Justice Sonia Sotomayor spoke for eight justices in declaring a driveway entitled to the same protection that the Fourth Amendment extends to the home. But Thomas's shot-across-the-bow concurrence underscores the risks to individual rights that could materialize with future changes in the Court's personnel.

Thursday, May 24, 2018

Gorsuch Vote Deals Unequal Justice for Workers

      Justice Neil Gorsuch cast the most important vote of his Supreme Court tenure so far in a decision this week [May 14] that consigns 25 million American workers to take workplace disputes with their employers to a quasi-legal system tilted against them. Gorsuch wrote and cast the tie-breaking vote in Epic Systems, Inc. v. Lewis to allow employers to enforce arbitration clauses that prevent workers from banding together in disputes over, for example, alleged violations of federal wage and hour laws.
      For forgotten working class voters in President Trump's political base, this decision is their payoff: argue with your boss over wage theft in arbitration, not in court, and bear the cost and any risk of retaliation all by yourself. In Gorsuch's telling, the employees in these cases all "agreed" to these terms even if, as Justice Ruth Bader Ginsburg noted in dissent, the fine-print terms were in "take-it-or-leave-it" contracts.
      The employees in two of the consolidated cases,  Epic Systems and Ernst & Young LLP v. Morris, went to federal court instead to claim that their companies had misclassified them as professional employees not entitled to overtime pay. In the third case, National Labor Relations Board v. Murphy Oil USA, Inc., Sheila Hobson decided to complain to the NLRB that she was forced to work off-the-clock without pay to monitor prices at rival companies' service stations.
      The employees' claims were far too small to justify an all-out legal war. So they joined with others to try to take on their employers together. No dice, the companies said, citing the clauses that limited any disputes to individual, not class, arbitration,
      The cases posed a seeming conflict between two federal laws: the pro-arbitration Federal Arbitration Act (FAA), enacted in 1925, and the pro-worker National Labor Relations Act, enacted a decade later in 1935. The FAA, enacted to override judicial reluctance to enforce arbitration agreement between businesses, provides generally that arbitration agreements are enforceable just like any other contract. The labor law provides that workers have the right to form and belong to unions, to bargain collectively, and to "engage in other concerted activities . . . for mutual aid and protection."
      In his majority opinion, joined by the other four Republican-appointed conservatives, Gorsuch concluded that class arbitration is not one of the "concerted activities" protected by the labor law. This interpretation comes from a justice who proudly identifies himself as a "committed textualist."
      In this case, Gorsuch imposed a narrow construction to the disadvantage of the complaining workers. Critical observers may recall the controversy at his confirmation about his dissent in the so-called Frozen Trucker Case. In that case, Gorsuch interpreted a trucker safety law so narrowly as to leave a stranded trucker no legal protection against being required to risk frostbite in subzero weather in his inoperable vehicle.
      The advantages and disadvantages of arbitration as opposed to in-court litigation are grist for a long debate, but individual arbitration clearly leaves the complaining worker out-resourced in a dispute with the employer. Gorsuch works in a building with a motto carved in marble above the entrance: "Equal Justice Under Law." In this case, however, the Gorsuch-led majority dispensed not equal justice, but unequal justice for U.S. workers.
      Gorsuch's vote marked the eighth time to cast a tie-breaking vote in a 5-4 decision. The justices vote in conference in order of seniority, so Gorsuch literally breaks the tie in these cases. In this case, eight justices divided down the middle before it came Gorsuch's turn to vote. Yet, in his opinion, Gorsuch said the correct result was "clear.".
      The one typical result in Gorsuch's other tie-breaking votes has been to extend "equal justice" to those least in need of the law's protection and deal out seemingly unequal justice to those in need of the law's benefit. Thus, in two procedurally complex cases, he blocked a Texas death row inmate from challenging his death sentence because of woefully deficient legal representation (Davila v. Davis) and prevented California's public employee pension system from suing Wall Street underwriters for funny figures in a public stock offering (California Public Employees Retirement System v. ANZ Securities, Inc.).
      In a more important case this year, Gorsuch cast the decisive vote in Jesner v. Arab Bank PLC  to immunize foreign corporations from being sued for human rights violations in U.S. courts:in this case, the Jordanian bank that allegedly serves as global paymaster for Hamas, helping to finance suicide bombers and other terrorist attacks. In other cases, Gorsuch helped limit damage awards for prisoners in some federal civil rights suits (Murphy v. Smith) and blocked car dealer service advisors from getting overtime pay (Encino Motorcars LLC v. Navarro). One more: In SAS Institute v. Iancu, he strictly interpreted a statutory phrase to give companies challenging a patent an extra measure of procedural rights.
      Only once has Gorsuch provided a tie-breaking vote to the liberal bloc. In that case, Sessions v. Dimaya, Gorsuch joined in ruling a criminal code provision too vague to be used to mandate deportation of an immigrant with a minor criminal conviction. Oddly, his vote there aligned with his strict approach to statutory construction in disagreement with a more flexible interpretation advanced by Chief Justice John G. Roberts for the four conservative dissenters.
      With 32 cases awaiting decision, Gorsuch is likely to be the tie-breaker in a few more this term. Equal justice for some; for others not so much. As President Trump might say, "We'll see what happens."

Sunday, May 20, 2018

New Evidence Shows No Time to End Mueller Probe

      The smoking gun that implicated President Richard M. Nixon in the Watergate cover-up emerged two full years after the break-in itself and more than a year after the appointment of Archibald Cox as special prosecutor to take over the case from the U.S. attorney's office. With that history in mind, no one should be surprised that special counsel Robert Mueller has been investigating the Trump campaign's connections with Russia for a full year now without having gotten to the bottom of this pit of Trump-style duplicity and obfuscation.
      Nixon marked the one-year anniversary of the Watergate investigation with a plea to shut it down. "I believe the time has come to bring that investigation and the other investigations of this matter to an end," Nixon urged on January 30, 1974, in what proved to be his final State of the Union address to Congress. "One year of Watergate is enough!"
      President Trump and his vice president, Mike Pence, channeled Nixon in making the same plea for an end Mueller's investigation. "I think it's time to wrap it up," Pence declared in a n interview with CNN [May 10] after claiming somewhat disingenuously to have "fully cooperated" with the investigation. Trump marked the actual one-year milestone [May 17] with a mocking tweet: "Congratulations America, we are now into the second year of the greatest Witch Hunt in American History."
      Mueller himself had no reactions, but senators from both parties batted the White House's line away. "That's not his call to make," South Carolina Republican Lindsey Graham said of Pence's plea. Senate Democratic leader Chuck Schumer used a floor speech to declare Mueller's investigation "not a witch hunt" and to denounce the efforts by conservative media and "extreme" elements in the Republican Party to "distract from the special counsel's investigating."
      Inconveniently for Trump, new evidence emerged only two days after his tweet  in an article in the New York Times showing that his campaign entertained efforts to influence the U.S. election not only from Russia but also from an emissary purporting to represent Saudi Arabia and the United Arab Emirates. It turns out that Donald Trump Jr. was meeting at Trump Tower in summer 2016 not only with Russian emissaries offering dirt on Hillary Clinton, but also with an adviser to the UAE's Crown Prince Mohammed bin Zayed Al Nahyan and an Israeli social media specialist offering help for Trump's then lagging-in-the-polls presidential campaign.
      Trump dissembled about the Russian meeting in a statement that Trump helped draft from the Oval Office. But Junior's email traffic eventually confirmed the purpose of the June 9 meeting and forced him into the fallback position that nothing ever came of it. Junior has settled more quickly on that same position in regard to the Aug. 3 meeting with the Gulf states' emissary George Nader and the Israeli social media practitioner Joel Zamel. Alan Futerfas, a lawyer representing Junior, told the Times that Junior recalls the meeting, but that after listening to the pitch Junior "was not interested and that was the end of it."
      Junior's effort to fashion an innocent ending for the two disclosures brushes over the damning fact that he took the meetings in the first place instead of responding, indignantly, that federal law prohibits foreigners from contributing to a campaign for federal office. His other defense, modeled after Nixon's famous advice in the Watergate investigation, is a failing memory.
      Transcripts of Junior's interview by the Senate Judiciary Committee released last week [May 16] show that he answered 171 times with the impossible-to-cross-examine reply, "I don't recall." His lapses of memory included an inability to recall the individual with a blocked number that he called to report on the meeting — thus, avoiding the evident implication that he called his candidate-father himself. Rep. Eric Swalwell, a California Democrat on the House Intelligence Committee, aptly commented on CNN that "I don't recall" was "code for Yes."
      Meanwhile, the Republican-majority Senate Intelligence Committee was underscoring the reasons for the Mueller probe to continue by endorsing the U.S. intelligence community's finding that Russians attempted to influence the 2016 presidential election. By now, the hyperpartisan House Intelligence Committee is the only governmental entity — apart from the Oval Office — resisting this conclusion. The evidence of Russia's active social-media campaign in Trump's behalf is damning, but not enough to move the administration or Republicans in Congress toward fashioning legislation to prevent a recurrence.
      The Oval Office-inspired clamor for Mueller to "wrap it up" shows no immediate sign of receding, however illogical. One of my journalist friends noted on Twitter that Watergate was not the only special counsel investigation to last more than a year. "The Whitewater investigation lasted six years & the Iran/Contra probe lasted four," former New York Times reporter Steven Greenhouse noted on Twitter. He called Russia's interference in the 2016 election and the possible collusion "far more serious matters" than those and noted that Mueller's supposed witch-hunt has already resulted in five convictions without also mentioning the pending indictments of the accused Russian meddlers.
      Mueller's investigation gained judicial endorsement when a federal judge last week [May 15] rejected the plea by Trump's indicted former campaign chair Paul Manafort that his indictment went beyond Mueller's scope of authority. Judge Amy Berman Jackson underscored the charge to Mueller to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign." With more smoke emerging day by day, Mueller deserves encouragement not to wrap things up but to document the full story of foreign interference in Trump's election, however embarrassing that may be to the candidate who benefited.

Saturday, May 12, 2018

On Blue Slips, Republicans' Hypocrisy Is Showing

      President Obama had been in office for less than two months when the Senate's Republican minority sent him an earnest letter imploring him to take steps what the letter called the "needlessly acrimonious" process of federal judicial appointments. The letter, signed by all 41 GOP senators, urged the president to consult with senators on judicial nominations and promised to block action on any Obama nominee who was not approved by senators from the nominee's home state.
      The letter's oblique reference to the Senate's long-established "blue slip" procedure cast "the principle of senatorial consultation (or senatorial courtesy)" as part of the Senate's "unique constitutional responsibility to provide or withhold its Advice and Consent on nominations." That was then, but this is now. Two of those who signed the letter, the Senate's GOP leader Mitch McConnell and the current Judiciary Committee chairman Charles Grassley, are pronouncing last rites for the blue slip procedure so that a Republican president can pack the federal judiciary without a semblance of bipartisan comity.
      The blue-slip procedure holds up Senate action on a president's judicial nominees until senators from the nominee's home state return a blue slip of paper assenting to the nomination. It is a custom, not a Senate rule much less a constitutionally prescribed requirement, but a custom long followed in a body that requires a measure of collegial courtesy to get some of its work done.
      Grassley took to the Senate floor this week [May 9] , however, to denounce the blue slip procedure as an extraconstitutional limitation on the president's Article II power to nominate candidates for lifetime seats on federal courts. Neither Grassley nor McConnell is known to have uttered any doubts about the procedure when they honored and practiced it to bottle up some of Obama's judicial nominations during his years in the White House.
      The double standard on this issue, sad to say, extends beyond the ignominious Senate Republicans to the gadfly journalist David Lat, who opined in The New York Times this week [May 9]: "Good riddance to the blue slip." Lat, a personal friend despite our ideological disagreements, conceded in reply to my question that he could not recall writing about the issue back when Republicans wielded it against Obama.
      Lat now admits that Republicans "abused" the procedure and casts his belated criticism as aimed at public rather than partisan interests. The blue slip procedure hurts the federal bench by leaving judicial vacancies unfilled and unfillable, he says. Its demise may benefit Republicans today or Democrats tomorrow, but the federal judiciary will be "the true winner" in the long run.
      Given current conditions, however, Lat is completely off point. Republican obstructionism in the final year of Obama's presidency left a record number of federal court vacancies as he left the White House. Now, Trump is choosing nominees at breakneck pace. A 61-page report by Judiciary Committee Democrats released on Thursday [May 10] details the Republicans' thus-far successful "efforts to stack the federal courts" with right-wing ideologues. The report decries the "degradation" of the confirmation process so as to limit any true deliberation.
      Grassley has changed the previous practice of scheduling only one circuit court nominee at a time in favor of allowing two circuit court nominees along with multiple district court nominees all on the same day. The Democrats note that stacking nominees hampers senators' ability to study background materials or thoroughly question nominees. After hearings, judges are confirmed "as quickly as possible, without thorough review" — with floor votes on average only 20 days after committee action.
      Now, the Republicans are moving to short-circuit floor procedures as well by proposing to limit debate on district court nominees to two instead of 30 hours once the Republican majority votes to invoke cloture. The resolution introduced in December by Oklahoma Republican James Lankford is awaiting consideration in the face of a strongly worded letter from civil rights organizations opposing the move.
      Lat professes to be agnostic about the nominees who are being rushed into lifetime tenure through this process. Most court cases would come out the same way regardless of the judge's politics, he argues. The short answer to that argument: Neil Gorsuch and the frozen truck driver.
      Clearly, Trump, Senate Republicans, and Trump's political base are counting on his judges to shift federal courts away from protecting, for example, LGBT rights  and toward favoring companies in disputes over regulatory policies protecting consumers, workers, and the environment. The Democrats' report underscores the contrast between Obama's judges and Trump's. Obama's judges represented the full diversity of America: 52 percent of district court nominees, persons of color; 52 percent, women. Trump's vision appears to be a federal judiciary of white men: only 8 percent of district court nominees are persons of color and only 24 percent women.
      One final point: the president who is so intent on reshaping the federal judiciary has little respect for the rule of law or the goal of impartial justice. The candidate who attacked the Mexican-American judge in the Trump University case is now the president who attacks judges who rule against his policies — as many have done. Contrary to Lat, the federal judiciary will not be the winner if Trump is given an even freer hand in choosing federal judges. 

Saturday, May 5, 2018

On Hush Money, Trump Tries to Change Subject

      President Richard Nixon famously tried to deflect the talk of impeachment in fall 1973 with an eminently quotable declaration of innocence in a televised news conference with the nation's newspaper editors. ""People have got to know whether or not their President is a crook," Nixon declared. "Well, I'm not a crook."
      Nixon was facing accusations of political espionage and obstruction of justice far more serious than stealing from the government's cookie jar, but "I'm not a crook" was the dominant sound bite on the network newscasts that day and in newspaper headlines the next day. Nixon's effort to change the subject failed in the end only after the Oval Office tapes confirmed his deep involvement in the Watergate cover-up.
      President Trump and his new wartime consigliere Rudy Giuliani appear to be borrowing from Nixon's subject-changing playbook to try to get rid of the controversy over Trump's alleged sexual affair with porn star Stormy Daniels a decade ago. For weeks, Trump had been denying the affair and in addition denying any role in the $130,000 hush-money payment to Daniels from his lawyer Michael Cohen three weeks before the November 2016 election.
      Giuliani went off on a completely different tack this week [May 2] by announcing to Fox News' Trump-loving host Sean Hannity that Trump actually had reimbursed Cohen for the payment. Giuliani's claim, within days after Trump added him to his White House legal team, directly contradicted Trump's and Cohen's previous statements that Cohen had paid the money himself without ever having been reimbursed directly or indirectly by Trump or the Trump organization.
      Any method behind Giuliani's startling claim appears to have been his specifying that Trump paid Cohen back from personal funds, not from his campaign treasury. "No campaign finance violation," Giuliani told Hannity. "Zero," he added with a wide Cheshire-cat grin on his face.
      Hannity appeared to be totally satisfied. "I didn't know," he said matter-of-factly without noting the complete contradiction of Trump's prior statements. But legal experts on other cable news channels, CNN and MSNBC, pounced viciously on Giuliani's statements as implicating rather than exonerating Trump and Cohen.
      From the initial disclosure, campaign finance experts viewed Cohen's payment as a campaign-related expenditure aimed at keeping a lid on Daniels' accusation at least until after the election. On that premise, the nonpartisan Campaign Legal Center filed a complaint with the Federal Election Commission (FEC) charging Cohen with a $130,000 contribution to Trump's campaign, well in excess of the $2,700 limit on individual contributions under federal law.
      Appearing on CNN with host Don Lemon, former Clinton White House counsel Jack Quinn noted that Giuliani's seemingly exculpatory statements were completely off point. "'We never used campaign funds,'" Quinn said, paraphrasing Giuliani. "That's not the issue. That was never the issue."
      Giuliani also tried to depict the hush-money payment as aimed at sparing Trump's wife Melania from embarrassment rather than protecting Trump's candidacy. With no regard for the evident implausibility, Giuliani went on in any event to contradict himself in a later appearance on Fox and Friends. "Imagine if that came out on Oct. 15, 2016, in the middle of the last debate with Hillary Clinton," Giuliani said, making the hush money's campaign-related purpose evident.
      For FEC purposes, Trump's eventual reimbursement to Cohen is meaningless for the lawyer's legal exposure. FEC regulations make clear that a loan to a campaign is subject to the same limit as a contribution: "A loan that exceeds the contribution limitations of 52 U.S.C. §30116 and 11 CFR part 110 shall be unlawful whether or not it is repaid."
      Far from exonerating the president, Trump's previously undisclosed reimbursement puts him squarely in legal crosshairs. If campaign-related, the expenditure needed to be included in spending reports with the FEC: it was not. If a loan or advance from Cohen, the debt needed to be included in Trump's June 2017 financial disclosure form: it was not.
      Admittedly, the future of Trump's presidency is unlikely to hinge on violations of federal disclosure laws. But Giuliani added further to Trump's legal exposure with a new explanation of the president's decision to fire FBI director James Comey. Trump had muddied those waters months ago, first by linking his decision to Comey's supposed mishandling of the campaign-time investigation of Clinton's email server and then by acknowledging the connection to the special counsel's Russiagate investigation.
      In the newest version of events, Giuliani claimed that Trump decided to fire Comey when the FBI director refused to make a public declaration that Trump was not a target of the Russiagate investigation. With a stronger link to the special counsel's investigation, the firing seemingly strengthens the case for charging Trump with obstruction of justice, if not in an indictment at the least in Robert Mueller's final report.
      Practicing lawyers who appeared on CNN or MSNBC appeared to be unanimous in viewing Giuliani's comments as an unforced error by a spotlight-loving politician. Giuliani insisted, however, that he made the statements after conferring with Trump and with the president's blessing. In the end, the episode gives Trump's critics this consolation: Trump and those around him are simply too incompetent to pose a lasting risk to American democracy, despite their worst efforts.