Sunday, January 19, 2020

Roberts' Role in Impeachment Trial Debated

      Chief Justice William Rehnquist had a famous quip to explain his hands-off role in presiding over President Clinton's Senate impeachment trial in January 1999. "I did nothing in particular," Rehnquist remarked after leaving the Senate chamber for the last time, "and I did it very well."
      In advance of President Trump's impeachment trial, most Supreme Court watchers were expecting Chief Justice John Roberts, Rehnquist's former law clerk decades earlier, to follow Rehnquist's lead in minimizing his constitutionally assigned role to preside over a presidential impeachment trial.
      With the Senate trial about to begin, however, two leading figures from the legal left publicly called for Roberts to take a more active role by supporting Senate Democrats' efforts to call witnesses once the trial gets underway. For their part, Senate Republicans are flatly rejecting the Democrats' insistence on the need for witnesses in Trump's impeachment trial.
      Democrats have logic and precedent on their side. "I don't know how you have a trial if you don't have witnesses," Minnesota's Democratic senator Amy Klobuchar, herself a former prosecutor, remarked on MSNBC last week [Jan. 14]. In fact, witnesses testified in the two previous presidential impeachment trials — Andrew Johnson's in 1868 and Clinton's in 1999 — and witnesses were called in the 15 Senate impeachment trials through history that resulted in convictions and removals of federal judges.
      Working hand-in-glove with the White House by his own admission, the Senate's Republican leader, Mitch McConnell, has ruled out any need for additional witnesses by blaming House Democrats for an incomplete job of gathering evidence before voting the articles of impeachment against Trump. 
      The partisan divide on the issue creates a dilemma for Roberts in his presumed goal of steering clear of politics or limiting himself to the minimalist role for judges that he described his Senate confirmation hearing in 2005. Back then, Roberts likened judges to baseball umpires, their role limited to calling balls and strikes according to an agreed-upon strike zone.
      In this trial, however, the opposing sides flatly disagree on the underlying rules: Roberts may be forced to choose one side or the other. In an op-ed written for The Washington Post [Jan. 15], Caroline Frederickson, former president of the progressive American Constitution Society, suggested that Roberts' stated ideals called for him to take "a more assertive role" at the trial.
      "Now more than ever," Frederickson wrote, "Roberts must live up to his own vision of dispensing justice by ruling to admit evidence that will advance the goal of seeking the truth." Roberts, she went on to argue, should simply follow well established judicial standards for determining any claims of privilege by Trump's legal team or weighing the relevance of proposed testimony sought by Democratic senators.
      Anticipating Frederickson's position, the nationally prominent Harvard law professor Laurence Tribe predicted in an appearance on MSNBC [Jan. 14] that Roberts, his one-time student at Harvard, in fact would use his power, if asked, to issue subpoenas for witnesses sought by Democrats. "I would hope," Tribe remarked, "that his inclination would be to seek the truth."
      A leading impeachment expert appeared to dash Tribe's and Frederickson's hopes at week's end, however, with an op-ed in The Washington Post that envisions the Senate itself, not the chief justice, as the rule-making authority for the trial. "The Senate’s rules and history make clear the Senate makes all important decisions in the trial," according to Michael Gerhardt, a law professor at the University of North Carolina and author of Impeachment: What Everyone Needs to Know.
      Gerhardt acknowledged that Chief Justice Salmon Chase played a more active role in presiding over Johnson's trial, but he noted that the Senate stopped just short of stripping Chase of any decision-making role and later overruled him on two of his evidentiary rulings. Rehnquist was "a model of restraint" in Clinton's trial, Gerhardt added by contrast, and "was never overruled--because he rarely ruled."
      "Temperamentally, Roberts is likely to follow the example of Rehnquist," Gerhardt predicted by recalling Roberts' famous balls-and-strikes analogy. "That does not sound like someone planning to become the center of attention in Trump's trial," Gerhardt concluded.
      Roberts made his first appearance at the trial by taking his own oath of office on Tuesday [Jan. 14] from the Senate's president pro tem, Iowa's Charles Grassley, and then administering the same oath to do "impartial justice" for all 100 senators. The ceremonial opening followed the presentation of the two articles of impeachment against Trump by the seven designated House managers, brought in the name of "the people of the United States and the House of Representatives."
      The 10-minute recitation of the charges by the House's Intelligence Committee chairman Adam Schiff provided a valuable reminder, for anyone willing to listen, that this is more than a partisan food-fight. The impeachment trial is a veritable constitutional crisis brought about by Trump's brazen effort to enlist a foreign government's help to influence the 2020 election to his advantage.
      Trump's scheme, Schiff intoned, "ignored and injured the interests of the nation." In the words of the first article, Trump "abused the powers of the presidency . . . to obtain an improper personal benefit." Compounding the abuse, Trump engaged in "an unprecedented defiance of congressional subpoenas," according to the second article. Impartial justice demands that those accusations be seriously considered, but Republican senators have yet to indicate that they will take their oaths seriously. Even in a limited role, Roberts can at least remind senators of that oath as the trial proceeds.

Sunday, January 12, 2020

Electoral College: Reform or Chaos?

      The electoral college system for electing the president and vice president of the United States would not be adopted today if put up to a public vote. Public opinion polls dating from the 1960s have registered majority support for amending the Constitution to elect the president by direct popular vote instead of by the indirect electoral system that Hamilton and the other Founders created because they distrusted popular democracy.
      The goal of reforming or replacing the electoral college still lies in the distance. Two reform proposals currently under consideration include the so-called interstate popular vote compact; under this plan, signatory states would agree to cast electoral votes for the nationwide popular vote winner regardless of the vote in their individual states.
      A second proposal, advocated by among others Harvard law professor Lawrence Lessig, would replace the current winner-take-all allocation of electoral votes with a system of awarding electoral votes proportionally based on the popular vote in the state. Under that system, Hillary Clinton would have won five of Wisconsin's 10 electoral votes in 2016; Donald Trump would have won 16 of California's 55 electoral votes on the basis of winning 31 percent of the state's popular vote.
      Lessig argues, in part, that proportional allocation of electoral votes would mean that every vote counts: Republicans in Massachusetts and other blue states; Democrats in Tennessee and other red states. He also argues that the reform would make it less likely that the popular vote loser wins the presidency, as has happened in two of the last five presidential elections: George Bush in 2000, Trump in 2016.,
      One or the other of these changes, maybe even direct popular election, might be hastened by two pending cases at the Supreme Court that threaten to turn the current system into constitutional anarchy. Faithless electors from two states, Colorado and Washington, are hoping the Court will rule that states have no power to penalize them for voting contrary to their pledges to vote according to the popular vote in their states.
      Lessig is representing the faithless electors in the two cases, Chiafalo v. Washington and Colorado Department of State v. Baca: four Democratic electors in Washington, three of whom were fined $1,000 for casting their votes for Republican Colin Powell; and a Democratic elector in Colorado, whose vote for Republican John Kasich was nullified. The justices considered the cases at their conference on Friday [Jan. 10] and, if they grant review, could schedule briefing and oral arguments in time for a decision by the end of the term in late June.
      Lessig was trying to organize a sufficient number of what he called "Hamilton electors" to deny Trump the electoral college majority he appeared to have won on Election Night. Lessign believed that some Republican electors might defect if Democratic electors cast their ballots not for Clinton but for some Republican alternative to Trump. The effort bore some fruit: two Republican electors in Texas voted for Kasich and Powell, reducing Trump's actual count to 304 from his election night total of 306; Clinton's count was reduced to 227 from 232.
      Faithless electors have been part of the system at least since 1800. Federalist electors who refused to vote for John Adams' running mate threw the vice presidency to Adams' political rival, Thomas Jefferson. Through history, at least 179 faithless electors have voted contrary to their stated pledges, but never since with any actual impact on an election.
      Most of the defecting electors were making political statements: for example, the Washington elector who voted for Ronald Reagan in 1976 instead of the actual Republican nominee, President Gerald Ford. Washington passed its law penalizing faithless electors the next year. Other faithless electors cast purely symbolic votes, like the Democratic elector from the District of Columbia who withheld her vote from Al Gore in 2000 to protest what she called the District's "colonial status."
      At the Supreme Court, attorneys for the two states argue that presidential electors can be required to cast their votes as pledged and penalized for not complying with state law. But Lessig argues, in effect, that presidential electors have a constitutional office beyond a state's control.
      In an extreme case, broad discretion for presidential electors could transform the post-Election Night transition period into bare-knuckle political combat until the electors' votes are opened in Washington in January. Imagine, for example, what might have happened if Gore had concentrated in 2000 not on getting a recount in Florida but on shaking loose four Republican electors from Bush's apparent total.
      The 2020 presidential election between Trump and the eventual Democratic nominee could be that close. With the election still a year away, one political handicapper drew a completely plausible Election Night map with electoral votes tied dead-even at 269 apiece. In that hypothetical outcome, one faithless presidential elector could decide who wins the presidency.   
      In their briefs, Colorado and Washington argue that the faithless electors' real aims are to abolish the electoral college system. Lessig, through a self-styled organization Equal Citizens, argues to reform rather than replace. He goes so far as to argue that the Supreme Court could declare the "winner take all" allocation of electoral votes as unconstitutional under the Equal Protection Clause's mandate to treat all votes equally.

Sunday, January 5, 2020

Roberts Naive, Clueless in Combating Political, Social Ills

      Chief Justice John Roberts apparently thinks that federal courts can help counteract the disinformation and dystopia that spreads virally on the Internet these days. Bless his heart, as they might say with bemused condescension back where I come from.
      Roberts' heart may be in the right place, but his head is up in the clouds. He has been well ensconced at the top of the judicial monastery for 16 years now and in the rarefied world of Supreme Court advocacy for 15 years before that. He seems to have no idea of the hard work that would be required from federal courts to counteract what he calls the "rumor and false information" spread by social media "on a grand scale."
report on the state of the federal judiciary, Roberts praises federal courts' increased attention to civic education. He cited as a prime example the decade-plus that the retired justice Sandra Day O'Connor devoted to civic education after leaving the Court in 2005. As other examples, he noted that the Federal Judicial Center has prepared online and in-print materials to help educate judges and the public about our constitutional system and that several federal circuits now have civic education forums at their courthouses.
      Roberts notes all these worthy endeavors as he laments the unhealthy role that social media play in 21st century America. "In our age," Roberts writes, "when social media can instantly spread rumor and false information on a grand scale, the public's need to understand our government, and the protections it provides, is ever more vital."
      True enough, but Roberts also opines, without substantiation, that in the years since the founding, "we have come to take democracy for granted, and civic education has fallen by the wayside." This drive-by slur on the American public is a bit much coming from a Supreme Court justice who led the Court in legally dubious decisions that struck down two important federal laws aimed at strengthening democracy by safeguarding voting rights and by limiting the influence of money in politics.
      In both of those decisions, Roberts showed that he was both naive and clueless about the realities of politics in present-day America. He led a 5-4 conservative majority in Shelby County v. Holder (2013) in striking down the most effective enforcement tool in the federal Voting Rights Act after concluding, contrary to Congress, that racial discrimination in voting practices was a thing of the past.
      Congress had repeatedly re-enacted the law along with the so-called preclearance provision that required states and local jurisdictions with a history of discrimination in voting to get federal approval before making any changes in election and voting procedures. Roberts concluded that Congress should have revised the formula used in extending the preclearance requirement based on updated voting statistics. The decision nullified the preclearance requirement and gave states the opening that several took to change voting procedures in ways that made it harder for minority voters to cast ballots.
      A year later, Roberts led the same conservative majority in the 5-4 decision in McCutcheon v. Federal Election Commission (2014) to strike down the aggregate cap on campaign contributions to congressional candidates. That provision, enacted as part of the post-Watergate Federal Election Campaign Amendments of 1974 and later re-enacted, established an overall limit of $46,000 as of 2011-12 on contributions by an individual to congressional candidates even if contributions to individual candidates were within the $2,500 limit.
      Defending the law, the Obama administration and various campaign finance groups argued that the limit on piling up within-the-limit contributions served the legitimate purpose of preventing corruption or the appearance of corruption. Roberts saw no danger and rejected the argument with a nonsensical retort. "The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse," he wrote.
      Needless to say, Roberts did not acknowledge these decisions in his lament about taking democracy for granted, nor did he address important issues of Supreme Court ethics and transparency. He said nothing about the calls from Supreme Court reformers such as Fix the Court to require justices to comply with the same Code of Judicial Conduct that federal judges from magistrates to circuit court judges have to follow.
      All the while touting the importance of public visibility, Roberts had nothing to say about cameras in the Supreme Court courtroom or same-day posting of audio recordings of oral arguments. And, as to ethics issues, he had nothing to say about the decision by two justices, Alito and Kavanaugh, to meet and appear in a photograph with the leaders of an anti-gay group that had filed an amicus brief in the important LGBT rights cases pending at the Court since October.
      As for counteracting rumor and false information, this journalist dares to imagine that Roberts might have made a real contribution by putting in a word or two for the free press. He might have highlighted the importance of the free press in holding public officials at every level of government accountable  from the president down to mayors and city councilors in every city, town, and village in the country. He might have said that baseless attacks on "fake news" undermine the press and give aid and comfort to the groups and individuals spreading false information. Instead, what we got to borrow a phrase from the Carter era was "more mush from the wimp."