Friday, July 29, 2016

Democrats Offer 'Progressive' Vision in Platform

      Democrats nominated a committed feminist as their candidate to be president of the United States. Republicans chose an unrepentant misogynist instead. The Democratic nominee began her professional life as a lawyer working for child and family welfare. The Republican nominee began his professional life in real estate, with a stake from his millionaire father, and moved on into casino gambling and name-brand entrepreneurialism.
      The Democratic ticket includes as the vice presidential candidate a devout Roman Catholic who worked as a missionary and as a lawyer sued to enforce fair housing laws. The Republican presidential nominee is a three-times married philanderer who was sued for housing discrimination early in his career and settled the case by paying a penalty.
      Apart from their different life stories, Hillary Rodham Clinton and Donald J. Trump present the starkest choice in political views and policy recommendations that the United States has seen since the Johnson-Goldwater race in 1964. And the party platforms are as different as night and day: dark and dystopian for the Republicans, bright and optimistic for the Democrats.
      The GOP platform was rightly called “the most extreme” in the party’s history; the Democrats’ is accurately described as the “most progressive” in their history. Both are written in policy-speak prose, but the Democrats’ platform is as densely wonkish and detailed as a Hillary Clinton speech in contrast to the mostly negative recommendations — repeal, overturn, and so forth — that Republicans offer.
      Supreme Court watchers will note that the Democrats applaud the same-sex marriage equality decision that Republicans vow to overturn through new appointments to the court. Democrats double down on LGBT rights by supporting efforts to interpret existing sex discrimination laws to prohibit anti-LGBT discrimination as well. Democrats promise to defend abortion rights, while Republicans want to overturn Roe v. Wade. Democrats double down again by promising to work to repeal the Hyde Amendment, the federal law from the 1970s that prohibits Medicaid funding of abortions.
      Democrats have targeted one example of Supreme Court activism to overturn: the 2010 decision in Citizens United that freed corporations, and unions, to spend money on federal campaigns from their own treasuries instead of through political action committees. The decision is a bĂȘte noire for the party’s progressive base, especially the Bernie supporters, but the impact of the ruling has been exaggerated and the odds for overturning it even with one or more Democratic-appointed justices are no better than 50/50.
      In her acceptance speech, Clinton promised to appoint justices who “will get money out of politics,” apparently forgetting the sage wisdom of the great Democratic politico Jesse Unruh that money is “the mother’s milk of politics.” More realistically, Clinton also promised to appoint justices who want to “extend” voting rights rather than “restrict” them. The court’s future course on those issues is up for grabs, more so than its future stance on campaign finance laws.
      The party platforms take opposite approaches on voting. The Republicans promise to strengthen the voter ID laws aimed at preventing the imaginary problem of polling place impersonation fraud. The Democratic platform sneers at voter ID laws and counters with a detailed laundry list of measures to combat voter suppression and enlarge the franchise.
      The platform calls for restoring the Voting Rights Act—a tacit reference to overturning the Roberts Court decision in Shelby County v. Holder that eliminated preclearance, the act’s most powerful enforcement weapon. It favors universal automatic voter registration, early voting, voting by mail, and so forth. And it doubles down by calling for restoring voting rights for ex-felons. Republicans offered no positive steps to make voting easier.
      The Democrats open the platform by self-identifying as “the party of inclusion.” Today’s immigrants, the platform reminds us, are tomorrow’s “teachers, doctors, lawyers, government leaders, soldiers, entrepreneurs, activists, PTA members, and pillars of our communities.” The platform vows to work for “comprehensive immigration reform” and promises “no religious test for immigrants.” No elaboration was needed to draw the explicit contrast with the anti-Muslim rhetoric of the Republicans’ standard-bearer.
      Trump may be ignoring the party’s Chamber of Commerce base, but the GOP platform includes several items from the business community’s wish list. Democrats went the other way. Republicans want to abolish, the Democrats want to strengthen, the Dodd-Frank Wall Street reform law. Democrats want to strengthen the Consumer Finance Protection Bureau and re-enforce its power to prevent the predatory lending practices that added to the pain of the housing crisis. Republicans want to abolish the agency.
      Trump may view himself as a friend of the blue-collar worker, but the Democrats endorse union rights while the Republicans say nothing. Democrats also want to limit the use of forced arbitration to limit legal remedies for workers and consumers; again, the GOP platform is blank. And the Democrats touch on other progressive causes unfound in the GOP charter: environmental justice for one, tribal sovereignty for another.
      Above all, credit the Democrats for discovering political courage that they too often have kept in the closet unless needed after an election. The platform calls for enacting sensible gun safety laws, now a popular cause, and abolishing the death penalty, not yet a politically winning issue. It is perhaps audacious to offer a progressive vision to counter the divisive rhetoric and policies that proved so useful in Trump’s rise. Voters get to decide in November.

Sunday, July 24, 2016

Liberty, Justice Missing From GOP Platform

      Donald Trump painted a truly terrifying picture of the United States in accepting the Republican presidential nomination on Thursday night [July 21]. The United States he depicted is a country beset by rampant crime at home and invincible adversaries abroad. In its own way, the official Republican Party platform for 2016 is equally scary even as the drafters claimed to be “optimistic” because “the American people are optimistic.”
      The 66-page platform is written in policy-speak prose instead of Trump’s staccato alarmism, but it paints a country in similar dystopian terms. And the various policy positions add up to what the New York Times aptly called in an editorial “the most extreme Republican platform in memory.” Understand that the Times’s memory extends at least back to 1964 when the party’s nominee, Barry Goldwater, embraced “extremism in the defense of liberty” and the platform saw individual freedom in retreat under “the mounting assault of expanding centralized power.”
      The threats to freedom and democracy in 2016 come from an “activist” judiciary that undermines self-rule and regulatory agencies that impose “quiet tyranny.” The platform lists individual liberty as a core American value but would actually make Americans less free in some respects. It claims to favor equal treatment for all but disrespects gay and lesbian families and would restore legal discrimination against same-sex couples seeking the respect and protection of marriage.
      The platform calls for appointment of judges “who respect the rule of law” and therefore would vote to reverse the landmark abortion rights decision Roe v. Wade, the marriage equality decision Obergefell v. Hodges, and the Obamacare cases. On abortion, the platform calls for adoption of the Human Life Amendment to extend constitutional protection to “unborn children.” This seemingly benign language would make abortion illegal in all circumstances — with no exceptions for rape, incest, or life of the mother — and possibly pave the way for prosecuting women who have abortions, whatever Trump’s view on the issue may turn out to be. 
      The platform would not merely overturn Obergefell, leaving the same-sex marriage issue to individual states, but would constitutionalize the definition of marriage as “one man and one woman.” For the Republican platform writers, family values translate to a mom and a dad for all children: single parents and same-sex couples to the curb. The platform backs adoption, but ignores the thousands of gay and lesbian parents raising adoptive children in loving homes from sea to shining sea. The party backs anti-discrimination legislation, but not for sexual orientation or gender identity. And for good measure the platform endorses asylum for victims of ethnic or religious persecution but with no mention of the many LGBT refugees fleeing persecution in their homelands.
      The platform runs through the Bill of Rights from the first to the tenth, but puts a curious spin on the First Amendment’s religion clauses. The Establishment Clause to the contrary notwithstanding, the platform calls for the teaching of the Bible “as literature” in school curricula throughout the country with no mention of the scriptures of other faiths. It also calls for Congress to pass the First Amendment Defense Act, which would create a precedent-setting, faith-based exemption from LGBT-inclusive civil rights laws.
      In an election season, the platform naturally extols the right to vote, but perpetuates the Republican myth of widespread voter fraud by supporting proof of citizenship and “secure photo ID” as prerequisites for casting ballots. By unfortunate coincidence for Republicans, the platform was adopted in the same week that a generally conservative federal appeals court found that Texas’s voter ID law, strictest in the nation, discriminates against black and Latino would-be voters.
      Unsurprisingly, the platform does not criticize the activist Roberts Court decision in 2013 that struck down the preclearance provision of the federal Voting Rights Act. It also speaks approvingly of court decisions that have struck down campaign finance regulations and, for good measure, calls for “raising or repealing” contribution limits so that big-money donors can have that much more political speech.
      The platform bows to the Second Amendment in opposing “ill-conceived laws” to limit magazine capacity or prohibit assault weapons — or, as the platform calls them, “the most popular and common modern rifle.” And a states rights-minded party unembarrassedly calls for “firearm reciprocity legislation to recognize the right of law-abiding Americans to carry firearms to protect themselves and their families in all 50 states.”
      Naturally, the platform backs Trump’s signature policy position of building a wall “to cover the entirety of the southern border” and “sufficient to stop vehicular and pedestrian traffic.” The platform includes no details, including the likely cost, but Trump of course plans to have Mexico pay for it. 
      Outside these hot-button issues, the platform pays obeisance to the party’s Chamber of Commerce base by decrying high corporate tax rates, urging the repeal of the Dodd-Frank Wall Street reform law, and calling for the abolition of the Consumer Finance Protection Bureau. It also favors a nationwide cap on non-economic damages in medical malpractice lawsuits, states’ rights again be damned.
      The reading-challenged presidential nominee is unlikely to have read the entire platform, but the document represents what GOP candidates are ostensibly committed to support if elected in November. A Republican victory based on this platform would make a mockery of the uplifting words of the Pledge: “with liberty and justice for all.”

Saturday, July 16, 2016

On Trump, ACLU Hits Target That Ginsburg Missed

      Credit the American Civil Liberties Union for taking the debate about Donald Trump in the direction that Supreme Court Justice Ruth Bader Ginsburg might have been able to if she had gone beyond off-hand comments to a succession of three reporters. In a comprehensive, 27-page report released on Thursday [July 11], the ACLU makes the case that Trump’s stated policies in six major areas would violate the U.S. Constitution, U.S. law, or international law, or all three. Coincidentally, the report came just as Ginsburg was saying in a written statement that her comments were “ill-advised.”
      The ACLU report stresses at the outset that the organization does not endorse, and never has endorsed, candidates for public office. The ACLU does law, not politics. The report is thus heavy with legal citations and essentially void of political analysis and gains in credibility thereby. No one will be surprised that Trump’s views on abortion, immigration, libel, and torture run afoul of law, but the ACLU does a great service by proving it, point by point by point by point.
      As a justice, Ginsburg does law, not politics, but her comments about Trump were strictly political and void of legal analysis. In her most extended remarks, to CNN’s Joan Biskupic, she called Trump a “faker,” faulted him for “ego,” and accused him of “no consistency.” Only once did she touch on the issue of Trump’s lack of respect for judicial independence. “For the country, it could be four years,” she told the New York Times’s Adam Liptak. “For the court, it could be — I don’t even want to contemplate that.”
      The comments predictably provoked Trump, who tweeted that Ginsburg was “a disgrace to the court” and suggested that she had “lost it.” In nonpolitical vein, many in political and legal worlds argued that Ginsburg had breached the ethical rule that judges should steer clear of politics. Two liberal newspapers, theNew York Times itself and the Washington Post, editorially criticized her. The Times aptly described her remarks as “political punditry” and “time-calling.”
      Some on the legal left, however, suggested that Ginsburg had the right and even the duty to speak out. Ginsburg was entitled to her surely well known opinions, they said, and it was good to unmask the fiction of judges as political ciphers. Trump’s candidacy poses a danger that demands speaking out and condemns silence. One writer, Slate’s Mark Joseph Stern argued that Ginsburg was justified because of the “menace” that Trump poses for the country.
      Some continued to defend her even after the justice herself voiced her regrets. “Judges should avoid commenting on a candidate for public office,” she said. “In the future, I will be more circumspect.”
      The ACLU report has no name-calling, no punditry, only legal analysis, issue by issue. It begins by noting Trump’s call for “a complete and total ban” on Muslims entering the country, as immigrants or tourists. The report infers that Trump has in mind the federal law authorizing the president to suspend entry of a “class of aliens.” But it argues that the law probably does not go that far and would violate the Constitution —  the Establishment Clause among other provisions — if a president tried to stretch it that far.
      In like vein, the report argues that Trump’s proposal for blanket surveillance and registration of Muslims in the United States would be unconstitutional, a violation of equal protection as well as the First Amendment’s free exercise and free speech clauses. Apart from the Constitution, the Muslim “database” would surely violate federal privacy statutes, the report adds.
      The report notes Trump’s endorsement in May 2015, before his presidential campaign, of legislation to allow the National Security Agency to collect “bulk metadata” of telephone calls by Americans. Congress changed the law less than two weeks later to prohibit collecting Americans’ call records in bulk, but Trump appears not to have changed his views. In an interview on MSNBC in November, Trump said in regard to telephone surveillance that he would “err on the side of security.” The report repeats the ACLU’s position that such surveillance is both unconstitutional and illegal.
      Trump has advocated waterboarding and other forms of torture, the report notes, seemingly reveling in the practice. He has said that he “love[s] waterboarding” and approves of the practice because “they deserve it anyway, for what they’re doing.” The Bush administration authorized waterboarding and other “enhanced interrogation techniques” under a Justice Department memorandum that was later repudiated. As the ACLU report states bluntly, torture and “other forms of cruel, inhuman, or degrading treatment” are “banned” by the U.S. Constitution, domestic law, and international law--with no “deviations” permitted.
      On domestic issues, Trump has called for revising libel laws “so that we can sue [media outlets] and win money.” But there is no federal libel law — nor can the president write one without Congress — and any change would run into the Supreme Court’s famous New York Times v. Sullivan ruling and subsequent line of decisions.
      Trump stirred controversy in March by suggesting that women need to be “punished” for abortions. He tried to walk back from the stance while still calling for punishing doctors. Whatever his position, the ACLU report correctly notes that the Constitution “squarely prohibits” either the federal or state governments from prohibiting abortion.
      Unfortunately, the ACLU report got little attention in a week dominated by political events at home and terrorism abroad. Had Ginsburg given a formal speech or interview to question the legal basis of some of Trump’s proposals, it would have made a contribution worthy of and possibly within the ethical rules of a Supreme Court justice. She didn’t. Credit the ACLU for doing it instead.

Sunday, July 10, 2016

Police Reforms Needed to Make Black Lives Matter

      The saturation coverage of the horror of Dallas has understandably taken precedence over follow-ups of the week’s earlier tragedies: the “police-involved” shootings of young African American men in Baton Rouge and a Minneapolis suburb. The bigger story is the unnecessary killing of young black men at the hands of police and the significant racial disparity in police use of force against African Americans.
      By the numbers, police use force in a tiny fraction of encounters with civilians, roughly 1 percent to 2 percent. But a new study by a racial justice-oriented think tank provides some confirmation of the racial disparity in police use of force that black Americans experience as a daily fact of life and that too many white Americans refuse to acknowledge.
      The study by the Center for Police Equity found that police use force against African Americans more than three times as often as they do against whites. Specifically, the mean rate for black residents is 273 instances per 100,000 residents in the 19 communities included in the two-year study: 3.6 times greater than the mean rate of 76 instances per 100,000 white residents. The mean rates for Hispanics were just below those for whites and the mean rates for Asians were very low: 15 instances per 100,000 residents.
      The disparity is significant but somewhat smaller for use of force in arrests. The study calculated 46 instances of use of force per 1,000 arrests of African Americans, about 30 percent higher than the average for whites: 36 instances per 1,000 arrests. Paradoxically, however, the study found the disparity reversed for arrests of violent offenses: force was 40 percent more likely to be used when arresting a white than a black for a so-called Category I offense.
      Arguably, that paradox substantiates rather than contradicts the suggestion of an implicit racial bias on the part of police forces nationwide. The disparity emerges not when dealing with serious criminals, but with less serious law violators such as Alton Sterling, killed Tuesday for selling loose CDs on a Baton Rouge, La., street corner, and Philando Castile, killed Wednesday for driving with a broken tail light in St. Anthony, Minn.
      Both deaths are officially under investigation, even after the cellphone videos have gone viral. Whatever the results of those investigations, however, Minnesota’s white governor, Mark Dayton, was undoubtedly right when he said that Castile would not have been killed as he reached for his ID, not his gun, if he had been white.
      In another seemingly paradoxical result, the study found police more likely to use lethal force against whites than against blacks, but nonlethal force — hands and body, pepper spray, tasers, canines — was more likely to be employed against blacks than against whites. Overall, the study calculated a comparison based on the count and the severity that found use of force 3.8 times greater for blacks than for whites.
      By the numbers, police-civilian encounters are far more likely to be fatal for civilians than for cops. The Washington Post’s comprehensive compilation counted 491 civilian deaths for the first six months of 2016, up 6 percent from the 465 in the same period in 2015. The Post’s numbers apparently do not include Sterling or Castile.
      Add one more: Micah Xavier Johnson, the black assassin who killed five officers and wounded seven others in downtown Dallas, before being taken out by a police-guided robot-bomb. Johnson, a 25-year-old Army veteran, was motivated, according to his words as reported by Dallas police, by hatred of whites, and especially white police officers.
      The five deaths were reported in the Post on Friday [July 8] on the front page, just above the previously planned, long takeout headlined, “Deadly shootings by police on the rise in 2016.” In the web version, the Post also included a table showing 20 police officers shot and killed in the first six months of 2016, up 25 percent from the 16 counted in the same period in 2015.
      The deaths in Dallas bring that number to 25 for 2016. The calculated nature of Johnson’s killings, and his explicit racial motivation, make the officers’ deaths more than a tragedy but an outrage. But assassinations cannot be anticipated nor assuredly prevented. No policy recommendations emerge from the horror in Dallas beyond Sgt. Phil Esterhaus’s daily roll-call admonition on Hill Street Blues: “Be careful out there.”
      There are policies, however, to deal with the problem of police use of force and the racial disparities. The Dallas police department is taking credit for training officers in “de-escalation” well before other cities, training that might have averted the deaths in Baton Rouge and St. Anthon and perhaps many others. Police forces also need to be more diverse, more representative of the communities they serve, and more sensitive to the cultural and social traditions of the people they serve.
      After Dallas, the dominant theme in news stories and commentary was, “Nation on edge.” Police feel beleaguered, but so do many, many black Americans. Like the Dallas officers’ deaths, Sterling’s and Castile’s death are more than a tragedy but an outrage. Perhaps these black lives can matter if they help build pressure for police to make meaningful changes in their policies and practices to protect and serve all, without regard to race. So far, as the Washington Post observed editorially, the moves in that direction have been “grievously inadequate.”

Sunday, July 3, 2016

'Stubborn' Facts, 'Stable' Law Shaped Kennedy's Votes

      Facts, it is said, are stubborn things. And when John Adams quoted that adage as the defense lawyer in the Boston Massacre trial, he added that the law is no less stable than facts.
      With the Supreme Court’s term now ended, the major question among Court watchers has been how to explain Justice Anthony M. Kennedy’s pivotal votes in the two stunning liberal victories on abortion and affirmative action. The experts have speculated that Kennedy “evolved” on the two issues perhaps to respond to political conditions outside the court and perhaps to safeguard his legacy.
      There is a simpler explanation, however, for Kennedy’s decision to uphold the University of Texas’s use of race in admissions and to strike down Texas’s regulations for abortion clinics. Based on the evidence, UT’s policies passed constitutional muster under Supreme Court precedents, but the abortion clinic regulations did not.
      In the abortion case, Whole Woman’s Health v. Hellerstedt, Kennedy had joined in establishing the governing precedent as one of the three authors of the jointly signed plurality opinion in Planned Parenthood v. Casey. The centrist trio Sandra Day O’Connor, David H. Souter, and Kennedy established the “undue burden” standard for determining the constitutionality of laws regulating abortion procedures. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the opinion declared.
      The evidence in a four-day trial before a Republican-appointed judge showed that the regulations imposed by the Texas law known as H.B. 2 fit that definition. The supposed health regulations were shown to be unnecessary and the regulations were convincingly linked to a reduction by half in the number of abortion clinics in the state.
      The law, now struck down in its entirety, required that physicians serving the clinics have “admitting privileges” at a hospital within the area, ostensibly to facilitate an emergency transfer to a hospital if a patient suffers complications during an abortion. The law was unnecessary from the get-go because clinics were already required to have written protocols for such transfers.
      The law was doubly unnecessary, however, because, as Justice Stephen G. Breyer wrote in the decision, complications are rare in abortions and rarely require hospital admissions. The very few that do occur almost always arise at home days later. When Texas’s lawyer was asked at argument, he could not give Breyer a single instance when a woman had suffered complications at a Texas clinic requiring admission to a hospital.
      In its other major provision, H.B. 2 required that abortion clinics meet the hospital-like staffing and building standards required for so-called ambulatory surgical centers. In the decision, Breyer noted that the district court judge had made “well supported” findings that the costly requirements did not benefit and were not necessary. Abortions are safe and, as Breyer noted, safer than other procedures such as colonoscopies that Texas allows to be performed outside hospitals or surgical centers.
      Kennedy joined with Breyer and the three other liberal justices to produce a five-justice majority to strike the law down. Tellingly, the three dissenting justices at the Supreme Court — Chief Justice John G. Roberts and associate justices Samuel A. Alito Jr. and Clarence Thomas — countered the majority not on the merits but on mind-numbingly procedural grounds. Alito came close to a substantive argument only toward the end of a 44-page dissent by suggesting that H.B. 2 was not solely to blame for the closure of more than half of the state’s clinics.
      The facts in the affirmative action case, Fisher v. University of Texasare admittedly murkier. And as the author of the 4-3 majority opinion Kennedy was applying a precedent from which he had dissented: the 2003 decision in Grutter v. Bollinger to uphold limited use of race in admissions at public colleges and universities. Grutter validated as “compelling” a school’s interest in a diverse student body and allowed limited use of race in a “holistic” consideration of applicants if the policies were necessary and narrowly tailored.
      In challenging UT’s policies, attorneys for the unsuccessful and unqualified white applicant argued in part that the policies were unnecessary. The school was admitting enough minority students, they argued, under the so-called Top Ten Percent Plan, which supposedly guaranteed admission to students graduating from a Texas high school in the top 10 percent of their class. But the evidence showed that in fact African American and Hispanic enrollment had stagnated, below what the school considered the “critical mass” needed to serve the interest in diversity and to guard against “racial isolation” for minority students.
      In his dissent for the three conservatives, Alito demanded that the university provide more specifics. Kennedy rightly countered that that sounded like an impermissible quota. Alito also plausibly accused Kennedy of going back on his earlier opinion in Fisher I to lower the deference for universities on race-conscious admissions. But with further review of the evidence, Kennedy was satisfied.
      It bears repeating that Justice Antonin Scalia’s assumed votes would not have changed the outcome in either case. Kennedy voted, however, after reviewing the facts and the law, not on the basis of preconvictions. As Adams said, “our wishes, our inclinations, or the dictates of our passions . . . cannot alter the state of facts and evidence.”