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.

Sunday, October 14, 2018

In Death Penalty Cases, Race Still Matters

      Race has always played an imortant role in capital punishment in the United States and still does, according to contemporary evidence from death penalty challenges in two states. The two studies, one from Oklahoma and the other from Washington, both show that black defendants convicted of killing white victims are more than twice as likely to be sentenced to death as white defendants convicted of killing white victims.
      The Supreme Court was presented similar evidence three decades ago, but refused in McCleskey v. Kemp (1987) to take the logical Equal Protection Clause step in a death row challenge by a Georgia inmate. The 5-4 ruling, criticized by legal scholars as one of the Court's worst twentieth-century decisions, discounted a statistical examination of 2,500 murder cases in Georgia as showing no evidence of racial bias specifically in McCleskey's case. 
      In a unanimous decision this week, however, the Washington Supreme Court relied on statistics from a much smaller study to strike down the state's death penalty law on the ground that it was "imposed in an arbitrary and racially biased manner." The ruling  in State v. Gregory [Oct. 11] set aside the death sentence imposed on an African American defendant, Allen Eugene Gregory, for the home-invasion rape-robbery-murder of a white woman in 1996.
      In her opinion for the court, Chief Justice Mary Fairhurst cited statistical evidence from 1981 through 2014 that black defendants were between 3.5 and 4.6 times as likely to be sentenced to death after capital sentencing hearings as non-black defendants after other variables were taken into account. The authors of the study found no more than an 11 percent chance that what they called "the observed association between race and the death penalty" could have resulted from random chance rather than true association.
      In Oklahoma, the state's Court of Criminal Appeals refused to consider a similar statistical study as part of its decision in August 2017 to reject a similar challenge by an African American death row inmate on procedural grounds. Tremane Wood had been sentenced to death in 2004 after his conviction in a racially charged trial of killing a white man who had set up a New Year's Eve sexual assignation with the mother of Wood's son. 
      Wood relied in his third post-conviction challenge on a study, published in April 2017, that showed capital defendants in Oklahoma cases with white victims more than twice as likely to be sentenced to death as defendants in cases with non-white victims. The Oklahoma court had already refused to consider the study in an earlier case and devoted less than three full pages to reject Wood's plea.  
      Wood's case now gives the Supreme Court a chance for a do-over on McCleskey. In a petition for certiorari filed in November 2017, Wood's lawyers argued that the study showed that Oklahoma juries are "significantly more outraged when white lives are lost than when nonwhite lives are forfeited." That kind of "race-based discrepancy," the lawyers argued, "is repugnant to both modern societal mores and to the United States Constitution."
      In their response, the state's lawyers went beyond arguing procedural default on Wood's part to attack the study in their words as "fatally flawed." The study was incomplete, the state's lawyers argued, because it did not take into account all of eight of the aggravating circumstances listed in the state's death penalty law. The justices have shown no interest so far: the case, Wood v. Oklahoma, 17-6801, was listed for the justices' conference on March 2 and has been rescheduled 15 times since then with no action yet.
      With the decision in Gregory, Washington became the twentieth state to eliminate capital punishment. The state was already observing a moratorium on executions imposed by Gov. Jay Inslee in 2014 and had been a laggard in capital punishment even earlier, with only five executions since 1987. The state's death row housed only eight inmates, whose sentences were reduced to life imprisonment under the court's ruling. 
      In contrast to Washington, Oklahoma has been one of the leading death penalty states, with 112 executions carried out since 1990 — the third largest number of any state after Texas and Virginia. Forty-nine inmates now await execution, but the state imposed a moratorium in 2015 a year after a widely criticized botched lethal injection execution. The convicted murderer Clayton Lockett was pronounced dead of a heart attack 43 minutes after the execution began only after visibly and audibly struggling and writhing in what his lawyer described as akin to torture.
      Lockett was administered a sedative, midazolam, that has been criticized in successive Eighth Amendment challenges as failing to render an inmate unconscious during the final stages of a lethal injection execution. The Supreme Court refused to disallow the procedure, however, in an Oklahoma case, Glossip v. Gross (2015),  that followed Lockett's execution. 
      Four terms later, the Court is still not moved to step in to ensure humane executions. The justices rejected a similar challenge to the use of midazolam in a decision last week [Oct. 11] to deny a stay of execution sought by a Tennessee inmate, Edmund Zagorski. In a dissent, Justice Sonia Sotomayor, joined by Justice Stephen G. Breyer, said the hands-off decision amounted to "complicity in state-sponsored brutality." Sadly, the inaction in Wood's case implicates the justices as well in the racial bias all too evident in the United States' flawed death penalty machinery.

Sunday, October 7, 2018

No Mandate for Supreme Court to Turn to Right

      The Supreme Court that takes the bench on Tuesday [Oct. 9] will have the weakest political mandate of any group of justices in U.S. history. But with a conservative majority solidified by the razor-thin confirmation of Brett Kavanaugh, the Court is poised to make fundamental changes in American law more rapidly than at any previous time in the Court’s history and to test public confidence in the Court's legitimacy and impartiality.
      With Kavanaugh’s confirmation, the Court now includes four justices appointed by Republican presidents who gained the White House despite losing the popular vote: two named by President George W. Bush, after his popular-vote majority re-election in 2004, and now two chosen by Donald Trump. With no popular mandate, Trump in his two appointments and Bush in one followed the Republican model set by Richard Nixon in the 1960s by pushing the partisan envelope on Supreme Court appointments as far as the political system would tolerate.
      Kavanaugh joins three other justices who won Senate confirmation in narrow roll-call votes and, according to one political scientist’s calculations, from senators representing a minority of American voters. The Court may have been intended in the constitutional system to play a countermajoritarian role to some extent, but the Constitution envisions that the justices with that power be nominated and confirmed by political branches responsive to public sentiment.
      Here are the figures, according to Trinity College political scientist Kevin McMahon, from his article “Will the Supreme Court Still 'Seldom Stray Very Far'?: Regime Politics in a Polarized America,” in Chicago-Kent Law Review:
      * Clarence Thomas, nominated by the popular vote-majority president George H.W. Bush and confirmed by a Democratic-majority Senate by a 52-48 vote. Those 52 senators, including 11 Democrats from southern states with substantial African-American constituencies, had been elected with 43.2 million votes; senators voting no had been elected with 46.1 million votes (48.33 percent to 51.67 percent).
      * Samuel A. Alito Jr., nominated by George W. Bush in his second term and confirmed by a 58-42 Senate vote. Senators voting to confirm had been elected with 56.3 million votes; senators voting no had been elected with 61.1 million votes (47.95 percent to 52.05 percent).
      * Neil M. Gorsuch, nominated by Trump after his 2.9 million popular vote loss to Hillary Clinton and confirmed by a Republican-majority Senate in a 54-45 vote. In Gorsuch's case, senators voting against his confirmation had a substantial popular-vote edge over those supporting his confirmation: 73.4 million to 54.1 million (57.6 percent to 42.4 percent).
      In advance of Saturday's historically narrow confirmation [Oct. 6], the Washington Post’s Philip Bump provided a similar analysisby adding up the total populations represented by senators planning to vote for and by senators planning to vote against Kavanaugh. Senators voting no represented a majority of Americans: 55.8 percent, compared to the 44.2 percent of the populace represented by Kavanaugh's supporters.
      Kavanaugh has an added distinction, unlikely to be noted at his retirement ceremony several decades in the future. Nominated by a historically unpopular president, Kavanaugh is the most unpopular Supreme Court nominee in the history of modern polling. Bump cited an NPR-PBS NewsHour-Marist poll taken days earlier that found 40 percent of respondents supporting the nomination compared to 52 percent opposed.
      A CNN poll taken in August found a narrow plurality opposed to his nomination: 37 percent in favor compared to 40 percent opposed. Kavanaugh was the only justice to be under water shortly after his selection; he even fared unfavorably in comparison to the unsuccessful nominees Robert Bork and Harriet Miers, who both had positive ratings at comparable points in the process. Merrrick Garland, President Obama’s obstructed Supreme Court nominee in 2016, had a substantial positive rating: 52 percent in favor, 33 percent opposed.
      Among the Republican senators supporting Kavanaugh, Texas’s personally repellent Ted Cruz coupled his endorsement with a recycled denunciation of policy decisions being made by “unelected judges.” Cruz cited no examples, but he almost certainly was not thinking of the various Roberts Court decisions gutting campaign finance laws, such as Citizens United, or any of the pro-business, anti-consumer decisions crafted by 5-4 majorities.
      As successor to the generally conservative Anthony M. Kennedy, Kavanaugh will slide comfortably into lineups such as those; he signaled his pro-business views and his doubts about campaign finance laws in 12 years on the D.C. Circuit. In contrast to Kennedy, however, he may provide the needed fifth vote either to overrule or sharply restrict Roe v. Wade despite calling it an “important” precedent. Based on his vote to strike down a ban on assault weapons, Kavanaugh is also a likely vote for expanding Second Amendment rights beyond the narrow holding in Heller 10 years ago.
      Decisions along those lines by five unelected justices would be in defiance of public sentiment. The most recent poll indicates that three-fourths of Americans oppose overruling Roe v. Wade. On assault weapons, 70 percent of those polled favor stricter laws. And several polls indicate public concern about the Roberts Court’s pro-business orientation. With public confidence in the Court already slipping, Kavanaugh’s ascension as the Court’s fourth minority justice may embolden an activist conservative majority to put public confidence at greater risk unless Chief Justice John G. Roberts Jr. keeps them in check.