Sunday, January 29, 2017

For Immigrants, Trump's Ban Not Just Words

      Donald Trump marked the first week of his presidency with a rapid succession of bull-in-the-china-shop pronouncements and policy moves. Much of what emanated from the White House was bluster and swagger, but Trump capped a tumultuous week with an ill-directed and truly cruel policy decision to try to close the U.S. border to Muslim refugees seeking asylum from strife- or war-torn countries in the Middle East.
      The executive order that Trump signed at the Pentagon on Friday [Jan 27] fulfills his campaign pledge to impose "extreme vetting" on Muslim immigrants seeking admission to the United States from seven specified terrorism-impacted countries. The curiously phrased policy emerged after the Trump campaign's original call for "a total and complete shutdown of Muslims entering the United States" produced a deafening uproar of protests from officials, commentators, and an array of religious, humanitarian, and civil liberties groups.
      By embarrassing coincidence, Trump signed the legalistically detailed order on the day set aside for international remembrance of the Holocaust. Human rights groups noted the sad irony by posting pictures of would-be Jewish refugee children who were turned away from the United States on the eve of World War II and later murdered in Nazi death camps.
      The closed-door policy for European Jews seeking refuge in the United States was couched in national security terms as a safeguard against enemy infiltrators, but it also rested in part on the widespread anti-Semitism at the time in government circles and among the general public. In like vein, Trump couched the new restrictions on refugees as needed to prevent "radical Islamic terrorists" from gaining entry, but the American Civil Liberties Union aptly called the policy "just a euphemism for discrimination against Muslims."
      The order, entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States," immediately halted the flow of refugees from Syria until further notice, suspended all refugee admissions for 120 days, and temporarily banned entry of citizens from six other countries: Iran, Iraq, Libya, Somalia, Sudan, and Yemen. The order also capped the annual intake of refugees at 50,000, a 50 percent drop from the previous authorized level of 100,000.
      "Identifying specific countries with Muslim majorities and carving out exceptions for minority religions flies in the face of the constitutional principle that bans the government from either favoring or discriminating against particular religions," the ACLU's executive director Anthony Romero said in a statement. With the restrictions put into effect immediately, the ACLU joined with other immigrant rights advocates in filing a federal court suit challenging the order as unconstitutional on Saturday morning. Ruling in the case, U.S. District Court Judge Anne Donnelly issued a nationwide stay late Saturday blocking major parts of the order from taking effect. Federal judges in Boston, Virginia, and Washington state also issued rulings ordering travelers detained under the order to be released.
      A leading counterterrorism official from the Obama administration said that the policy was neither necessary nor likely to be useful in preventing entry by would-be terrorists. Speaking on the PBS NewsHour, Daniel Benjamin, the State Department's ambassador-at-large and counterterrorism coordinator during Obama's first term, said there has not been a single instance since 9/11 of a terrorist coming from outside the country to carry out an attack on U.S. soil.
      Benjamin also countered Trump's accusation that immigration officials have not been carefully vetting would-be refugees under existing policies. "We know more about immigrants before they get here than we know about the president's finances," Benjamin remarked. The refugee vetting process is said to take at least nine months or up to two years.
      Trump's order had immediate effects on Saturday morning as would-be migrants were detained at some U.S. airports upon arrival or blocked from boarding U.S.-bound flights at foreign airports. The ACLU suit was filed in federal court in Brooklyn on behalf of two Iraqis detained at Kennedy airport, according to the New York Times. One of the men had reportedly worked as an interpreter for the United States for 10 years.; the other was traveling to join his wife, who had worked in Iraq for a U.S. contractor.
      In contrast to the restrictions on refugees, many of Trump's policy moves during his first week consisted of words, not actions. The wall on the border with Mexico cannot be built without appropriation of funds by Congress, and Mexico will not be paying for the wall except through tariffs that actually will affect U.S. consumers along with Mexican exporters. Trump signed an executive order that undermines the Affordable Care Act in advance of repeal or replacement but directs administrative changes only to the extent consistent with existing law.
      Trump used his first-sit down interview as president to tell ABC News' David Muir that he favors the use of torture, but he promised to defer to Defense Secretary James Mattis's recommendation against it. In an earlier closed-door meeting with Reublican lawmakers, Trump made the utterly bogus contention that as many as 3 million or 5 million immigrants voted illegally in the presidential election, but nothing will come from the supposed investigation he wants to have done.
      Trump had the audacity earlier on Friday to issue a statement of sorts to mark the Holocaust. He pledged in the statement "to do everything in my power throughout my Presidency. and my life, to ensure that the forces of evil never again defeat the powers of good." Words, not actions: Trump's actions spoke more loudly and sent a completely different message by withdrawing the welcome mat once held out for "huddled masses yearning to breathe free."

Monday, January 23, 2017

Justices Set to OK Offensive Trademarks?

      More than 5 million Americans tune in every Tuesday night to watch ABC's second-season sit-com Fresh Off the Boat and laugh at the antics of the show's newly arrived Asian American immigrant family. The Huangs epitomize all the stereotypes of Asian American culture: a father so desperate to assimilate that he opens a western steakhouse restaurant; a tiger mom driven by ambition for their three children; and kids already imbued with American culture and oblivious to their Taiwanese roots.
      The show, based on the coming-of-age memoir of the same name by the chef and food personality Eddie Huang, has been received with a measure of bemused gratification among Asian Americans for the program's realistic if satiric depiction of the immigrant experience. Even as popular culture accepts Fresh Off the Boat, however, a hitherto obscure government board is balking at an Asian American dance rock band's decision to perform and market themselves under an ethnic slur: The Slants.
      Simon Tam was a young and ambitious San Diego-born musician in 2006 when he formed what he now calls the world's only all Asian American dance rock band. Tam called the band The Slants to declare ethnic pride and reclaim the slur from the trash heap of bigotry. Now, a decade later, Tam and his bandmates are before the U.S. Supreme Court in a closely watched free-speech case. They want to force the federal government's Trademark Trial and Appeal Board to register the band's name as a protected trademark entitled to legal safeguards against misuse or misappropriation by others.
      Justices across the ideological spectrum appeared to favor Tam's plea during the spirited hour of arguments in Lee v. Tam last week [Jan. 18]. In an only-in-America coincidence, the government's appeal is brought in the name of Michelle Lee, the Asian American director of the U.S. Patent and Trademark Office (PTO). The government fared badly in the arguments, but the trademark board deserves better than it got for its well-meaning effort to dissociate the government from a term that still today is offensive to a significant number of Asians and Asian Americans.
      The PTO's trademark board was not seeking to prevent The Slants from using their name, the government's lawyer emphasized to the justices, only to withhold the benefits that come from official registration. But two civil liberties groups from opposite sides of the political spectrum — the American Civil Liberties Union and the Cato Institute — joined in support of the band's argument that the government's refusal was an improper burden on free speech under the First Amendment.
      The trademark board was enforcing a provision of the Lanham Act, the statute that Congress enacted in 1946 to codify trademark law and provide a national system for registering trademarks. The act's section 2(a) prohibits the PTO from registering a name that may "disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." Unfortunately for the government, the PTO's enforcement of the anti-disparagement provision has been anything but consistent or logical. Those shortcomings lend strength to the band's argument for ruling the provision flatly unconstitutional rather than directing the trademark board to reconsider the case.
      The disparagement provision went all but completely unenforced until the last decade or so. As the band's lawyers noted in their brief, trademarks registered in the 1950s and 1960s included many examples unpalatable by current standards: Black Sambo candy, Honey Chile food, Him Heep Big Trader auto dealer, and Wampum Injun corn chips. They argued that the approval of trademarks such as these reflected the proper view of the disparagement provision as applicable to individuals but not to ethnic groups as such.
      Representing the government, deputy solicitor general Malcolm Stewart tried hard to sidestep free-speech concerns. The Slants could sing what they want and call themselves what they want, he contended, but the trademark board could set "reasonable limits" on access to what he called "a government program." Congress could reasonably have decided, he argued, that ethnically disparaging terms hindered interstate commerce. Later, Stewart argued that offensive trademarks lowered the United States' standing in other countries.
      Justices from left to right were not buying it. From the liberal bloc, Elena Kagan suggested that the First Amendment prohibits the government from limiting access to a government program based on viewpoint. Ruth Bader Ginsburg asked whether it mattered that the band was using the name not to "disparage" but only to "describe" their Asian heritage. Stewart answered that the trademark examiner had found sufficient evidence that the term was still widely considered to be offensive.
      From the conservative wing, Samuel A. Alito Jr. suggested Stewart was "stretching the concept of a government program beyond the breaking point." From the ideological midpoint, Anthony M. Kennedy suggested the trademark board's position was out-of-date if nothing else in an era of trademarked T-shirts and other apparel used unmistakably for expressive purposes. Kennedy hesitated, however, after the band's attorney, New Jersey intellectual property expert John Connell, acknowledged that his argument would require registration even of an "absolutely outrageous" trademark.
      Watching the case closely are the owners and fans of the Washington Redskins, the National Football League's perennially underachieving franchise in the nation's capital. The trademark board canceled the Redskins' registration on ethnic disparagement grounds. The team's appeal is on hold at the Fourth U.S. Circuit Court of Appeals awaiting what seems likely to be the Supreme Court's decision favoring the Slants sometime late this spring.

Sunday, January 22, 2017

In Trump's Inaugural, Empty Talk and LIes: Sad

      In his first address as president, Donald Trump broke one of his broadest promises even before he had finished. “The time for empty talk is over,” Trump declared near the end of a speech that was empty of specifics and chock full of exaggeration, outright falsehoods, and ugly campaign-style rhetoric.
      Fact-checkers at NPR and the Washington Post had a field day compiling and refuting all the distortions in Trump’s dire depiction of the state of the country and his full-throated attack on government policies maintained by administrations of both parties for decades. Exhibit number one: Trump’s signature campaign message that “millions and millions” of Americans are out of work and countless factories shuttered because of jobs shipped overseas owing to unfavorable trade agreements.
      At NPR, diplomatic correspondent Michele Kelemen noted the passage in a recent speech by Secretary of State John Kerry attributing 85 percent of job losses in U.S. manufacturing not to trade, but technology-driven automation. In the Post, Glenn Kessler and Michelle Ye Hee Lee similarly noted that economists blame job losses on automation above all along with some decline in consumer demand for manufactured goods. But they also pointed out that despite the historic downward trend, manufacturing jobs actually increased a bit since 2010 from 11.5 million to the current level of 12.3 million.
      Trump promised to get Americans “back to work,” but the current 4.7 percent level of unemployment is the lowest since November 2007, according to the Bureau of Labor Statistics. Trump’s “Buy American” and “Hire American” remedies for joblessness ignore the importance of export-driven job growth and fly in the face of the Trump Organization’s outsourcing of Trump-branded goods.
      Trump’s “I have a nightmare” speech, as one wag termed it, pivoted off the supposed economic devastation to an alarmist picture of crime- and drug-driven “carnage” in the nation’s “inner cities.” Trump’s overwhelmingly white audience surely recognized the geographic term as a dog-whistle reference to racial and ethnic minorities. But Trump’s supporters need to know, as Kessler and Lee pointed out, that violent and property crimes overall have been declining for the past two decades. Homicides spiked in some major cities in the last two years, true, but the rates remain “far below” the peaks from the late 1980s and early ‘90s.
      Inner cities are “trapped in poverty,” Trump declared, but the poverty rate of 13 percent in metropolitan area is roughly the same as the 13.5 percent national average, according to Kessler and Lee. And they responded to Trump’s promise to “get our people off of welfare” by noting that the number of people on the two major means-tested programs – Temporary Assistance for Needed Families (TANF) and Supplemental Assistance Nutrition Program (SNAP) – has actually declined over the past 15 years from 2.4 million families to 1.6 milllion.
      Trump described failing schools as “flush with cash,” but NPR’s education correspondent Eric Westervelt noted a study by the liberal Center on Budget and Policy Priorities showing that 31 states are spending less per pupil today than they did in 2008.  Trump similarly conjured up a false picture of “trillions and trillions” of dollars in U.S. military assistance and foreign aid. As Kessler and Lee pointed out, those programs amount for a tiny fraction of U.S. spending. Trump can get to “trillions” of dollars only by counting the cost of the Iraq war.
      So many lies in such a short speech: 1,600 words. The “tens of millions” he claimed for his movement actually numbered far fewer than those who filled the National Mall all the way to the Washington Monument for Obama’s first inauguration in 2009. A side-by-side photo showed vast empty space for Trump’s swearing-in; later, photos showed many of the parade-viewing bleachers mostly empty.
      Just as disturbing as the falsehoods were the many subjects that Trump never even touched. Surprisingly, he said nothing about health care: no promise to repeal Obamacare, nor any suggestion of how to ensure universal access to health care, as Trump has promised but not congressional Republicans. He did not mention climate change nor any other environmental issue. For all his supposed concern about the “forgotten” working class, Trump did not mention workplace safety, workers rights, or the minimum wage.
      Trump’s glancing plea for tolerance — “When you open your heart to patriotism, there is no room for prejudice” — included not even a pro forma promise to enforce the nation’s civil rights laws. Women's rights, nothing; LGBT rights, same. The LGBT page was gone from the White House web site well before the day was done.
      Trump promised to “reinforce old alliances” barely a week after he had jolted the United States’ European allies by describing NATO as “obsolete.” He promised to “unite the civilized world against Radical Islamic Terrorism” (capitalized in the original) and “eradicate [it] completely from the face of the Earth.” The crowd cheered, but the promise was as devoid of specifics as the many he made regarding domestic policy.
      Apart from substance, the speech was also totally lacking in style: all platitudes and bombast, barked in Trumpian bursts rather than delivered. “America will start winning again, ” he promised, “winning like never before. ” George Will, the conservative and staunchly Republican columnist, pronounced it the “most dreadful” inaugural address ever. In the Trump era, the assessment can be stated more succinctly: sad.

Sunday, January 15, 2017

Will Trump's Nominees Change Their Spots in Office?

      Sen. Lindsey Graham opened his questioning of Attorney General-designate Jeff Sessions last week [Jan. 10] by saying that the hearing posed the question whether someone could be confirmed as attorney general despite the opposition of more than 1,000 law professors nationwide. The broader question for the Senate Judiciary Committee and the full Senate, however, is whether a leopard such as Sessions can change his spots when moving from the jungle on Capitol Hill to a Cabinet post.
      Judiciary Committee chairman Chuck Grassley started the two-day hearing as the first of a succession of Sessions' Republican colleagues to voice confidence in the Alabama senator's ability to enforce the law impartially if confirmed as attorney general. But the committee's ranking Democrat, California's Dianne Feinstein, used her opening to state, without later contradiction, that Sessions "has advocated an extremely conservative agenda" in his 20 years as senator.
      Thirty years ago, Sessions’ nomination to a federal judgeship died at the hands of a Republican-majority Judiciary Committee based on allegations of racial insensitivity or worse as a federal prosecutor. So Sessions may not have been the most obvious choice to head the Justice Department given the department’s continuing indispensable role in enforcing federal civil rights laws.
      Sessions’ nomination fits the pattern, however, seen in the selections made by President-elect Trump for other Cabinet positions. Scott Pruitt, the Oklahoma attorney general tapped to head the Environmental Protection Agency, has made a hobby of sorts out of suing the EPA in league with the pollutant-producing oil and gas industry. Betsy DeVos, the Michigan politico nominated as secretary of education, did not attend nor send her children to public schools but has instead devoted time and money to supporting charter schools as alternatives to public schools. Andy Puzder, the fast food executive designated to be secrtary of labor, would be charged with enforcing laws that his company has been accused of repeatedly violating; his hearing is on hold till next month.
      For the all-important position of secretary of state, Trump turned, counterintuitively, to Rex Tillerson, the longtime chief executive of ExxonMobil. Tillerson’s previous diplomatic experience consists of cozying up to petrocratic regimes such as Iran and Vladimir Putin’s Russia for oil-drilling rights.The State Department has a major role in documenting and combating human rights abuses around the world, but Tillerson had no views when asked at his confirmation hearing about human rights conditions in Saudi Arabia, a country surely familiar to him as the world’s leading oil producer.
      Pruitt and DeVos are set to face confirmation hearings later this week: DeVos on Tuesday [Jan. 17], Pruitt on Wednesday [Jan. 18]. Democratic senators may have tough questions for each, but with a 52-48 Republican majority in the Senate Trump’s nominees have a certain path to confirmation barring any GOP defections. Tillerson’s confirmation was clouded somewhat by critical questioning during his Foreign Relations Committee hearing from Florida’s Republican senator Marco Rubio and doubts from two other GOP senators, Arizona’s John McCain and South Carolina’s Lindsey Graham.
      Rubio grilled Tillerson during the Jan. 11 hearing about his longstanding business ties with Russia, which had netted him an “Order of Friendship” award from Putin in 2013. Tillerson declined under repeated questions to characterize Putin as a “war criminal” or to describe Russia as “an adversary.” Tillerson had already raised eyebrows by telling New Jersey Democrat Robert Menendez that he had not discussed relations with Russia in his pre-nomination interview with Trump.
      One day earlier, Sessions had been closely questioned by several of the Judiciary Committee Democrats but seemingly with no apparent damage done to his all but certain confirmation. Sessions is popular with his colleagues, and senatorial courtesy counts for a lot. Just as important, Sessions repeatedly assured his Republican colleagues and the Democratic skeptics that he would impartially enforce laws even if he disagreed with them — as, for example, on the Supreme Court’s decisions on abortion rights and marriage equality for same-sex couples.
      Considered more closely, however, Sessions’ record and his answers clearly signal a sharp change in policy at Main Justice after his confirmation. Sessions indicated his support for voter ID laws, which the Obama administration has joined in challenging in federal court. He signaled his intention to support local police departments instead of investigating them for patterns and practices of violating citizens’ civil rights, as the Obama administration has done aggressively in jurisdictions from Ferguson, Mo., to, most recently, Chicago.
      On voting rights, Sessions sounded the right notes by acknowledging that the Voting Rights Act “changed the whole course of history,” but he did not retreat from his endorsement of the Supreme Court’s decision in 2013 effectively eliminating the act’s most powerful enforcement mechanism. He claimed to have no recollection of his quoted comment doubting the existence of discrimination against women or LGBT individuals.
      David Cole, national legal director of the American Civil Liberties Union, aptly commented that it is hard to fight against discrimination if one does not believe that it exists. From the opposite perspective, Sessions’ GOP supporters found little to point to in his civil rights record beyond a few Senate resolutions – for example, commending Rosa Parks, the heroine of the Montgomery bus boycott.
      Elections have consequences, of course, and Trump won the White House on the promise to shake things up. Still, as the runner-up in the popular vote, Trump along with his Cabinet appointees would be well advised to remember that they preside over a government of laws, laws to be observed and enforced even if the “government of the day” (to use the British phrasing)  may have disagreements.

Sunday, January 8, 2017

In Trump Era, LGBT Groups Playing Defense

      LGBT rights advocacy groups are bracing for challenging times in Washington as President-elect Trump assembles his cabinet and prepares to take office this week [Jan. 20]. "It's not going to be an administration that's going to be good for LGBT rights," says Elliot Imse, director of communications for the Gay and Lesbian Victory Institute. But Imse and other LGBT leaders say they are not going to take the next four years lying down.
      The Victory Fund, a political action committee devoted to electing openly LGBT candidates to public office at all levels of government, hosted a gathering of more than 500 LGBT officials in Washington one month after the election to plan strategy for coming battles in Washington and in state capitals around the country. Participants were "revved up," Imse says. They were "extremely excited to be talking strategy instead of mourning election day," he adds.
      Trump will take office after eight years that have been relatively good for LGBT advocates under President Barack Obama. As president, Obama backed LGBT rights in a number of areas — for example, in a significant executive order late in his second term that bans anti-LGBT discrimination by federal contractors. He also helped secured major victories from the other two branches of the federal government.
      Obama lobbied Congress for and signed into law the 2010 legislation that set in motion the Pentagon's eventual elimination of the "don't ask, don't tell" policy against openly LGBT military service members. Obama also greenlighted the government's decisions to argue successfully at the Supreme Court in 2013 against the Defense of Marriage Act (DOMA) and in favor of the landmark decision in 2015 guaranteeing marriage rights for same-sex couples nationwide.
      Trump sent shivers of fear through the LGBT community back in August with his selection of Indiana's governor Mike Pence as his running mate. As governor, Pence in 2015 signed a religious freedom bill that allowed individuals and companies to refuse services to LGBT individuals by citing religious objections. LGBT organizations highlighted a photograph of the bill-signing showing Pence to be flanked by leaders of anti-LGBT organizations. Among other Pence policies, they noted that he supported the federal anti-gay marriage amendment and that back in his first run for Congress in 2001 he called for using federal anti-HIV/AIDS funds to support groups that promote so-called gay conversion therapy.
      Since the election, Trump has further disheartened LGBT groups with his selections for cabinet positions. As one example, Betsy DeVos, selected to be secretary of education, has reportedly donated with her husband  hundreds of thousands of dollars to Focus on the Family, a conservative Christian group that among other positions favors gay conversion therapy. Attorney general-designate Jeff Sessions also has a record of opposing pro-LGBT measures during his two decades as a U.S. senator from Alabama. He supported the federal marriage amendment, opposed repealing "don't ask, don't tell," and voted against taking up a federal measure to ban anti-LGBT discrimination in the workplace.
      During the Obama years, Congress was hospitable to LGBT issues only when Democrats held a majority in both chambers in his first two years in the White House. The 2016 elections left Republicans in control of both the House and the Senate, though with slightly reduced majorities. Imse acknowledges the unfavorable climate for LGBT issues at both ends of Pennsylvania Avenue. "We have a Congress and an administration that are most likely going to oppose LGBT issues and most likely try to turn the clock back on LGBT rights," he says.
      Imse stresses that the number of openly LGBT elected officials is at an all-time high. On Capitol Hill, there are six openly LGBT members of Congress: Wisconsin's Democratic senator Tammy Baldwin and six member of the House, all Democrats. Imse and Baldwin both cite the defeat of North Carolina's Republican governor, Pat McCrory, as a cautionary tale for politicians who take high-profile stands against LGBT rights.
      McCrory's narrow defeat by Democrat Rory Cooper was widely attributed to his signing a bill, known as HB 2, that nullified local LGBT rights measures and required transgender individuals to use public restrooms corresponding to their birth sex instead of their gender identity. "I think if Donald Trump wants to take the same path as Governor McCrory, he's going to face resistance from businesses and families across the country," Baldwin says. Imse agrees. "Public opinion is now on the side of LGBT equality," he says, "and that includes Democrats and Republicans."
      Anti-LGBT forces appear to have the initiative at present. Since the election, legislators in Texas and Virginia have introduced so-called bathroom bills comparable to the North Carolina measure. Meanwhile, the issue is pending in the courts. A federal judge in Texas has blocked the Obama administration policy guidance that schools allow transgender students to use the restroom corresponding to their gender identity. And the Supreme Court is set to hear arguments this spring in an argument by a local school board in Virginia seeking to overturn a lower court decision favoring a transgender student's right to use a bathroom corresponding to his gender identity.
      Imse promises that LGBT officials will be "extremely vocal and united when anti-equality agendas are proposed or put forward." Baldwin also acknowledges that LGBT advocates will be on defense for the foreseeable future. “Defensive battles will have to be fought wherever efforts to roll back hard-won rights are launched," she says.

Sunday, January 1, 2017

Roberts' 'Missed Opportunity' on Judicial Vacancies

      When President Franklin D. Roosevelt proposed his notorious court-packing scheme in 1937, Chief Justice Charles Evans Hughes delivered the fatal blow to the plan. In a letter to leading senators, Hughes refuted Roosevelt's claim that the court was falling behind because the six septuagenarian justices were not keeping up with the work. The court was up to speed, Hughes said, and additional justices actually would slow the work down.
      Eight decades later, Senate Republicans played politics with the court in a different way last year by refusing to consider President Obama's nomination of the veteran federal judge Merrick Garland left by the death of Justice Antonin Scalia. Some on the political and legal left speculated that Roberts might speak out against the obstruction. But Roberts stayed completely silent even as the unfilled vacancy left four significant cases partly unresolved because of 4-4 splits among the remaining eight justices.
      Senate Republicans extended their obstructionist policies to the lower federal courts by all but shutting down the confirmation process for Obama's nominees to district court and circuit courts of appeals. As the year ended, federal courts had an historically high number of 107 vacancies, including 84 district court judgeships and 14 on circuit courts. Obama had submitted nominees for 84 of the positions, and the Senate Judiciary Committee had approved 25 for floor votes. But all were left hanging as the 114th Congress was set to expire on Tuesday [Jan. 3].
     Roberts followed the now established practice on New Year's Eve of issuing an annual report on the "State of the Judiciary." He devoted the 10-page report to effusive praise for federal district court judges, who he said "make a difference every day" by staffing the first rung in the federal judicial system. Oddly absent, however, was the anodyne reassurance included in several of his previous reports that the state of the federal judiciary was "strong."
      To the contrary, the federal judiciary has become collateral damage in the uncommonly bitter partisan, regional, and class warfare that consumed the country throughout the presidential campaign. The death of the conservative icon Scalia naturally touched off a high-stakes political fight, but the Senate Republicans' refusal to grant Garland a hearing was literally unprecedented since the beginning of confirmation hearings early in the 20th century.
      The year-long slowdown on Obama nominees for the lower federal court leaves almost exactly twice the number of vacancies that Obama inherited at the end of George W. Bush's presidency. Sheldon Goldman, a professor at the University of Massachusetts-Amherst and the leading academic expert on federal judicial appointments, calls the Senate's record over the past two years "the worst in American history in terms of obstruction and delay."
      Combined with the Supreme Court vacancy, the lower court vacancies give the new president an early chance to start reshaping the federal judiciary. Obama leaves a legacy of the most diverse federal judiciary in history: he named a record number of women, African Americans, Hispanics, and Latinos to the federal bench.  Out of 14 openly LGBT individuals he nominated for federal judgeships, the Senate confirmed 11 — bringing the total number now to 12.
       Trump seems unlikely to have any similar interest in diversity. To judge from his list of Supreme Court possibilities, he seems interested in satisfying the legal conservative groups that served as feeders and vetters for the Bush administration. Even with Democrats outnumbered 52-48 in the Senate, trench warfare seems inevitable, with some adverse effect on public confidence in the impartiality of the federal bench.
      Roberts might have said at least a word or two about the fighting over the vacancies, but never did — not during the year and not even the first word in his annual report. Admittedly, Supreme Court justices typically sit on the sidelines as the president and the Senate work to fill the federal bench, even seats on the Supreme Court itself. As Hughes realized, however, unusual times demand unusual actions.
      Neither the court nor the federal judiciary was well served by Roberts' institutional self-restraint, if that is what it was. As a Republican appointee, Roberts could also be suspected of partisan complicity in the Republican tactics. Garland's confirmation, after all, would have left Roberts with a five-justice liberal-leaning majority.
      Roberts' silence was "a missed opportunity for leadership," says Gabe Roth, the executive director of the reformist "Given all the partisan rancor, there was a need for an adult in the room." Apart from the Supreme Court vacancy, Roth sees blame for both parties in the judicial battles. "Republicans try to find the most conservative judges," he says. "Democrats try to find the most liberal."
      Roth likes the practice adopted during the Carter administration of using specially created judicial selection commissions to screen federal judge nominees at the state or circuit level. Roberts might have used his position as a "bully pulpit to tryi to fix the broken process,"  he says. With Trump set to take office, "things are going to get weird," Roth warns. "There's no better time to try to come up with a better system."
      In his annual message, Roberts had warm and appreciative words for the nation's 600-plus federal district court judges, but just that. Federal judges and those who look to the federal courts for effective and impartial justice might understandably have hoped for and even expected more.