Sunday, March 29, 2020

In Pandemic, More Liberty Means More Deaths

      Patrick Henry rallied his fellow Virginians to the impending revolution in 1775 with a stirring speech, well known to school children and others still today, that posited for himself the dramatic choice, "Give me liberty or give me death." Henry showed that he was deadly serious, according to the accounts, by bursting from imaginary chains and grasping an ivory letter opener as though in self-sacrifice.
      With the coronavirus pandemic forcing Americans to shutter businesses and shelter in place, some politicians and commentators on the political right are clamoring today for liberty to be restored, but they are less than deadly serious. Unlike Patrick Henry, these faux patriots call for sacrificing others, rather than themselves, not so much for liberty's sake, but for the economy's and for President Trump's re-election.
      The equation today, in the time of the coronavirus, is simple: more liberty means more deaths. The social distancing guidelines that Trump claims as his in a mass mailer sent to postal households last week come with the unanimous recommendation of actual public health experts; they will still be needed, the experts say, beyond Trump's 15-day pull date.
      The calls to sunset the social distancing guidelines with the pandemic still advancing come with a strong hint of libertarian resentment from, among others, the lieutenant governor of the "don't mess with me" state of Texas and from confirmed opponents of government regulation such as the Hoover Institution's Richard A. Epstein.
      Texas's lieutenant governor, Republican Dan Patrick, posed the choice starkly in an appearance with Fox News' Tucker Carlson [March 23] the same day that Trump had warned against allowing "the cure to be worse than the disease." As a septuagenarian grandfather himself, Patrick said the economically unproductive elderly, especially vulnerable to Covid19, could be sacrificed to get the United States' recession-bound economy back on track. "If that's the choice," Patrick told Carlson, "I'm all in."
      Even before Patrick's chilling suggestion, the idea of consigning the elderly to slow deaths from covid19 had advanced far enough to draw attention from, among others, Donald McNeil, science reporter for The New York Times. Appearing on MSNBC's Rachel Maddow Show hours after the Carlson program, McNeil let out a cri de coeur: “This notion that it’s only going to kill grandma — as if that were OK — has got to stop,” McNeil said.
      Epstein, a self-identified libertarian hawk, argued for lifting the social distancing guidelines even earlier in an article posted on the Hoover Institution's web site on March 16 and quickly circulated in the White House and in pro-Trump circles. With no training in epidemiology, Epstein opined that the warnings from statistically trained public health experts "radically overestimate the ultimate death toll" from Covid19. As of mid-March, Epstein contended, the number of deaths in the United States — then below 500 and now over 1,700 — "fall[ ] short of justifying the draconian measures that are now being implemented." With appropriate modesty, Epstein conceded at the end that "perhaps" his analysis was wrong.
      Economists, once famously described as knowing "the price of everything but the value of nothing," were adding to the debate over the spreading quarantines by hesitantly asking whether the benefits in lives saved were worth the costs to the economy. Those costs emerged starkly when the U.S. Labor Department Labor Statistics reported at the end of the week a record number of new claims for unemployment benefits: just below 3.3 million. For Trump, the data amounted to a bucket of cold water thrown on his boasts about the lowest unemployment rate ever and the best economy ever.
      Trump, with no evidence ever of empathy for the hardships of others, was most certainly concerned about the risk of unemployment: especially his own. With an approval rating below water throughout his presidency, Trump had been counting on a good economy as his hole card in the November election. An economy stuck in reverse would cast him perhaps as the underdog in what was going to be a difficult re-election campaign in any event.
      At week's end, Trump appeared intent on lifting the social-distancing guidelines by Easter Sunday [April 12] in order to help get the economy going again. His impatience flew in the face of evidence-based predictions from public health experts that relaxing emergency measures prematurely would allow the virus to spread beyond control and lead to a new spike in diagnosed cases, hospitalizations, and deaths. That is what happened, the experts noted, when some U.S. cities eased restrictions they had adopted to combat the Spanish influenza epidemic in 1918.
      Trump repeatedly insisted, contrary to the evidence, that the pandemic arrived completely unexpected. In fact, he had received warnings about the potential spread of the virus even in those early weeks when he was minimizing the risks. He also called the pandemic unprecedented, seemingly unaware of the Spanish flu epidemic a century earlier. Studies of the epidemic, as cited in a recent article in National Geographic, show that death rates were 50 percent lower in cities that adopted preventive measures early and that relaxing those measures could cause an otherwise stabilized city — for example, St. Louis — to relapse.
      Social distancing "saved thousands of American lives during the last great American pandemic," according to the article's headline. Trump's self-interested hopes for a favorable economy by November matter not a whit in comparison to the lives to be saved by staying the course.

Sunday, March 22, 2020

Supreme Court Must Adapt to Hear Scheduled Cases

      The Supreme Court's 2019 term is in serious jeopardy unless the justices overcome their aversion to technological advances that could allow the Court to hold most oral arguments even as the coronavirus pandemic forces postponement or drastic alteration of the usual public sessions.
      The Court bowed to public health necessities last week [March 16] by postponing the March oral argument calendar with its 11 cases scheduled from March 23 through April 1. The postponed cases include President Trump's politically charged effort to block subpoenas for his financial records by a House committee and the New York City district attorney's office.
      The nine other cases postponed include, among lesser disputes,  Google's effort to block Oracle's high-stakes software copyright infringement lawsuit against the Silicon Valley giant. With the coronavirus pandemic still spreading, the April calendar with nine cases scheduled for courtroom arguments beginning on April 20 could be postponed as well.
      The Court's press release announcing the postponement included the stay-tuned suggestion that it would "examine options for rescheduling those cases in due course in light of the developing circumstances." At this writing [March 21], the Court has not acknowledged suggestions from concerned Court watchers that oral arguments can be held with attorneys participating remotely or without a courtroom audience and livestreamed or posted on the Court's website on the same day instead of at the end of the week.
      Nationwide, schools, colleges, and universities adapted to the social distancing guidelines announced by public health officials at all levels of government by shifting to online instruction.  Instructors from elementary school teachers to law school professors adapted as best they could to teaching to computer screens instead of classrooms.
      The Court has made some limited concessions to the new circumstances, but not enough to complete a full term's worth of decisions. The justices conferenced on Friday [March 20] as scheduled, with "some" of them participating by phone. The Court may issue decisions this week [week of March 23] but without the justices taking the bench. Opinions will be posted online, but the slip opinions ordinarily distributed to press and public will not be provided.
      Court watchers dissatisfied with the Court's response so far include Gabe Roth, executive director of the reformist advocacy group Fix the Court. In a same-day press release, Roth called the postponement "a positive step" but took the opportunity to renew the group's call for greater public access to the Court's courtroom sessions.
       "The Court would do well," Roth said, "to extend modern conveniences to the general public the next time it holds arguments so proceedings would be available live to those beyond the courtroom's walls. Providing remote access would protect the health of the justices and the public during the current pandemic and beyond."
       Roth noted in the press release that the Court has the technological capacity to livestream its proceedings, as the Court did for the memorial service for the late Justice Antonin Scalia held in the Great Hall on Nov. 4, 2016. In a phone interview last week, Roth emphasized that the Court could use any of several remote conferencing technologies to hold arguments in April as scheduled or to reschedule the postponed March cases.
      The nine cases on the April calendar include several of major import. Two cases, one from Washington and the other from Colorado, test whether states can penalize so-called "faithless electors" for casting their presidential ballots contrary to the state's popular vote The arguments are scheduled to end on April 29 with yet another case claiming a religious freedom exemption from the Affordable Care Act's requirement for employers to provide contraception coverage as part of employee health plans. "I do hope that they will hold arguments next month," Roth said. "It's important for the public to see or hear that the levers of government are still working despite a crisis."
      To date, the Court has heard oral arguments in 48 cases, far fewer than a term's usual complement of 70 cases. If opinion writing is not delayed, those decisions will be issued a few at a time over the next three months until the customary rush of decisions in the final week of June. So far, the Court has been somewhat slow off the mark, with only 14 decisions issued through early March and none of them especially newsworthy for the general public.
      The high-profile cases already "submitted" include the effort in two cases argued in October to extend federal job discrimination protections to LGBT individuals. Also pending since the fall is the Trump administration's effort to rescind the Obama administration's immigration policy to protect the so-called dreamers: "deferred action for children of Americans," known as DACA. More recently, the Court heard arguments in an important abortion-related case that abortion rights advocates fear could give states more leeway to enact regulations aimed at limiting access to abortion care.
      Whatever course the Court takes in those major cases, the justices owe the public a full year's work. The Court also owes the litigants in the March and April calendars some measure of justice without further delay. Other federal appellate courts have conducted oral arguments remotely over the past two weeks; the Supreme Court should follow suit and, in the process, recognize the need to give the public greater access to their proceedings.

Saturday, March 14, 2020

Court Obliges Administration on Asylum Policy

      The Supreme Court pulled the Trump administration's chestnuts from the fire once again last week [March 10] by lifting an injunction approved by two lower courts against another of the administration's anti-immigrant initiatives of dubious legality. With only Justice Sonia Sotomayor in recorded dissent, the Court granted the administration's plea to stay the injunction that blocked the so-called "remain in Mexico" policy for asylum applicants at the California and Arizona borders.
      The administration engages in Orwellian doublespeak by calling its challenged policy "Migrant Protection Protocols." In truth, the 60,000 non-Mexican migrants returned to Mexico under the policy over the past 15 months have faced the grave threat of victimization from criminals, police, or immigration officials in communities unprepared to house, shelter, or care for them.
      Consider: These are dark-skinned Central American refugees who have fled their home countries because of fears of persecution by repressive governments or retaliation from powerful Central American gangs. Some of the would-be refugees presented testimony that they feared their home country governments or gangs would identify them from news coverage of the controversy.
      In upholding the district court judge's injunction against the policy [Feb. 28], the two-judge majority on the Ninth Circuit Court of Appeals recognized "the hardship and danger to individuals returned to Mexico under the MPP." Writing for the two Democratic appointees on the panel, Judge William Fletcher found that the individual plaintiffs had "presented evidence that they [and others] face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States."
      Fletcher was equally blunt in dismissing the administration's legal defense of the policy. "[T]here is no serious possibility that the MPP is consistent with [federal law]," Fletcher wrote in the 52-page opinion joined by his fellow Clinton appointee, Richard Paez. The Republican appointee on the panel, Judge Ferdinand Fernandez, dissented on the narrow ground that a previous appeals court panel had effectively upheld the policy by granting the administration's request to stay Judge Richard Seeborg's injunction.
      Apart from humanitarian concerns, the policy fails on two legal grounds, as Fletcher explained: federal law and international treaties, designed to protect asylum applicants rather than turn them away at the border. Specifically, the asylum procedures enacted by Congress include a provision, codified at 8 U.S.C. § 1225(b)(2), that exempts asylum applicants from the expedited removal procedures prescribed for "other aliens" found to be inadmissible.
      Instead, the law requires that an immigrant who indicates an intention to apply for asylum or a fear of persecution "shall" be referred by the immigration officer to an “asylum officer” for an interview and detained in the United States for further consideration. The applicable law does not "state[ ] or even suggest[ ]" that the asylum applicant is subject to the return procedure specified for other migrants, Fletcher adds. In addition, international treaties prohibit under a so-called "non-refoulment" principle from returning an asylum applicant to a country where the refugee would face the risk of persecution.
      The decision to stay the injunction followed by seven weeks the Court's 5-4 decision to allow the Trump administration to implement another initiative to deter immigration after two federal courts prevented it from being put into effect. The Court's decision in Department of Homeland Security v. New York [Jan. 27] allowing the administration to institute a new, stricter "public charge" rule to bar would-be immigrants came on a 5-4 vote, with the four liberal justices dissenting. Two of the conservatives in the majority, Neil Gorsuch and Clarence Thomas, wrote a concurring opinion to criticize in particular the district court judge's decision to issue a nationwide injunction against the policy.
      Significantly, a stay of a lower court decision pending appeals is an "extraordinary" remedy, not routine. The Trump administration has made a habit of asking the Supreme Court to stay adverse decisions from lower courts pending appeals and the justices have obliged in many instances, often with the liberal bloc in dissent. Three weeks after the action in the New York case, Sotomayor complained in a similar case from Illinois of what she called the administration's "now familiar pattern" of asking the Court for stays. The Court, she added, has been "all too quick to grant the Government’s reflexiv[e] requests."
      In the asylum case, the Ninth Circuit steered clear of the "nationwide injunctions" debate by narrowing Judge Seeborg's injunction to the two Ninth Circuit states that border Mexico: California and Arizona. In the opposing briefs, the American Civil Liberties Union, representing the migrants and the immigrant rights groups, argued that the policy effectively prevents migrants from pursuing their asylum claims. Border Patrol officers fail, the ACLU lawyers charged, to inform the migrants of their right to express fear of persecution if returned to Mexico. The government insisted in response that the policy included "adequate safeguards to ensure that aliens who legitimately fear persecution on account of a protected ground or torture in Mexico are not returned to Mexico."
      The Court gave no explanation for issuing the stay in the asylum case, nor did Sotomayor explain her dissent. The other liberal justices' decision to concur or at least to remain silent seems a puzzle. But the action illustrates, yet again, that when the Trump administration says jump, the Roberts Court is quite willing to answer, "How high?"

Sunday, March 8, 2020

U.S.-Mexico Border More Dangerous After Court Ruling

      The United States' southern border with Mexico can be a dangerous place. It was more than dangerous but fatal for a Mexican teenager, Sergio Adrián Hernández Guüreca, on June 7, 2010, when he was playing with friends in the concrete culvert that divides the border cities of El Paso, Texas, and Ciudad Juarez, Mexico.
      Hernández died at the hands of a U.S. Border Patrol agent, Jesus Mesa Jr., who fired a bullet that struck Hernández in the face on the Mexican side of the culvert's unmarked border. With that happenstance, Hernández's parents lost the ability to hold Mesa responsible in U.S. courts for their son's death in what the Supreme Court was to describe in its decision
10 years later as "this tragic case." 
      The episode was not only tragic but also avoidable, with greater care on Mesa's part. With a 5-4 decision last month, however, the Supreme Court eliminated the only legal tool available in practical terms to encourage trigger-happy Border Patrol agents such as Mesa to exercise more care before resorting to lethal force against unarmed and innocent Mexicans on their side of the border.  
      Hernández 's death sparked outrage in Mexico and even an unsuccessful effort to prosecute Mesa for murder: thwarted by the United States' refusal to extradite the agent. On the U.S. side of the border, the episode prompted a cursory investigation that cleared Mesa of any wrongdoing and a self-defense coverup contradicted by later discovered video from the scene. 
      The Mexican youths, by their accounts, had been playing a game of climbing up the bank of the former Rio Grande riverbed to touch U.S. soil and then running back down into Mexico. Mesa claimed that the boys were trying to cross into Texas and that he fired two shots at Hernández only after the youths pelted him with rocks and swarmed around him. The onlooker's video showed no rock-throwing and no youths surrounding Mesa. 
     Hernández's death was not an "isolated incident," as Justice Ruth Bader Ginsburg wrote in dissenting from the eventual decision. In a more egregious case at the Arizona border in 2012, a Border Patrol agent fired more than a dozen bullets across the border, killing a 16-year-old boy while he was walking on the street in Nogales, Mexico. 
      The Mexican government counted Hernández' death at the border as the seventeenth in the first six months of 2010: up from the five deaths in 2008 and twelve fatal shootings in 2009. Former Border Patrol officials filed a brief
in the Hernández case stating that to their knowledge the United States had never prosecuted a Border Patrol agent for a fatal shooting nor extradited an agent for prosecution in Mexico.
      The government's response to the broader array of complaints of physical and verbal abuse by Border Patrol agents has been similarly anemic. A study
by the American Immigration Council found that among more than 800 complaints filed from 2009 to 2012, no action was taken in 97 percent of those that resulted in formal decisions.
      With formal channels of accountability seemingly futile, Hernández's parents, represented by among others the University of Texas law professor Stephen Vladeck, turned to U.S. courts. They filed a suit in federal district court in El Paso, seeking to take advantage of a Supreme Court precedent, Bivens v. Six Unknown Federal Narcotics Agents (1971), which created a cause of action against federal officials for violations of constitutional rights. 
      The Court twice extended Bivens beyond its Fourth Amendment context to permit a Fifth Amendment sex discrimination complaint against a member of Congress, Davis v. Passman (1979) and an Eighth Amendment cruel and unusual punishment claim for a prisoner's inadequate medical treatment, Carlson v. Green (1980). More recently, however, the Rehnquist and Roberts Courts have refused to extend Bivens further and, in the most recent decision Ziglar v. Abbasi (2017), described Bivens as an example of "disfavored judicial activitiy."
      Against those odds, Hernández's lawyers faced such obstacles as persuading the courts to allow a suit by an alien and to allow a suit for an injury inflicted on foreign soil. They nevertheless won a victory of sorts in their first go-round at the Court in 2017 with a decision that, instead of dismissing the suit, sent the case back to the Fifth U.S. Circuit Court of Appeals for further consideration of those issues. 
      Back at the Supreme Court following the Fifth Circuit's second decision to reject Hernández's suit, the conservative justices signaled during oral arguments on Nov. 12 their continued distaste for Bivens. Assigned to write the majority opinion, Justice Samuel Alito Jr. contrived to find some specific reasons for again refusing to extend Bivens to "a new context." 
      Cross-border shootings have foreign policy implications within the executive branch's domain, Alito reasoned in his opinion in Hernández v. Mesa [Feb. 25, 2020]. He also warned that extending Bivens carried "the risk of undermining border security." With those distinctions, Alito and the four other conservatives had no need to overrule Bivens, but in a concurring opinion Justices Clarence Thomas and Neil Gorsuch said they would have been willing scrap Bivens entirely.
      Writing for the four liberal justices, Ginsburg poked holes in Alito's reasoning, but to no avail. She closed by noting the warning from former Border Patrol officials that without civil liability, there would be "no meaningful deterrent to abuse at the border." In short, Ginsburg concluded, "it is Bivens or nothing." 

Sunday, March 1, 2020

Phony Debate Over 'Nationwide Injunctions'

      The Trump administration and many legal conservatives have been on the attack for the past three years against the power of federal judges to block new government policies by issuing nationwide injunctions that extend farther than an individual judge's geographical jurisdiction.
      The then attorney general, Jeff Sessions, issued a broadly worded legal memorandum in September 2018 that described nationwide injunctions as "judicial activism" by go beyond a judge's authority by granting relief to individuals and groups beyond the plaintiffs in the individual case. The issue was featured in a keynote session at the conservative Federalist Society's annual convention in Washington just two months later.
      Two of the Supreme Court's conservative justices elevated the debate in a pointed attack on nationwide injunctions earlier this year [Jan. 31]. Justice Neil Gorsuch's five-page critique came in an opinion concurring in the Court's decision to stay an injunction issued by a federal court in New York City to block the administration's new rule to bar would-be immigrants likely to use food stamps or Medicaid if admitted to the United States.
      Gorsuch went beyond the issue of the so-called "public charge rule" by attacking what he called "the rise" in universal injunctions as contributing to "gamesmanship and chaos" in federal litigation. "Universal injunctions have little basis in traditional equitable practice," Gorsuch wrote.
      Justice Clarence Thomas, who joined Gorsuch's opinion, had similarly criticized nationwide injunctions in a concurring opinion  in the Court's decision two years earlier to uphold Trump's so-called Muslim travel ban.. Like Gorsuch in the later opinion, Thomas argued that so-called universal injunctions were a recent development, contrary to historical practice and constitutional limits on judicial power.
      "These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch," Thomas wrote in the June 2018 decision.
      Several liberal legal academics sharply disagree that nationwide injunctions are a recent or extraconstitutional development. Mila Sohini, a law professor at the University of San Diego, argues in a law review article that universal injunctions date at least from the early 20th century and notes that the Supreme Court has upheld comparable injunctions without reservation in cases challenging state law. ""If Article III allows such injunctions as to state laws,," Sohini adds, referring to the Constitution's article on the federal judiciary, " it also allows such injunctions as to federal laws."
      Amanda Frost, a law professor at American University in Washington, argues in another law review article that universal injunctions are often the only way to provide complete relief to plaintiffs with a well-grounded legal case. "[S]ometimes," Frost adds, "anything short of a nationwide injunction would be impossible to administer."
      The Trump administration fared badly in lower courts on the Muslim travel ban and again in litigation over the public charge rule. A federal district court judge in California had issued a nationwide injunction to block the Muslim travel ban. A federal district court judge in Manhattan issued a nationwide injunction in October 2019 to block the administration's recently tightened "public charge rule."
      In all, the Trump administration had been on the losing side in 40 nationwide injunctions issued through September 2019, according to a report signed by Missouri's Roy Blunt as chair of the Senate Republican Policy Committee. That report counted no such single-court nationwide injunctions before 1963 and only 20 against Obama administration policies during his eight years in office.
      Significantly, Republican officials and conservative experts had been muted or silent when federal judges issued similarly broad injunctions to thwart legal initiatives with the Democrat Obama in the White House. Thomas wrote not a word, for example, when the Court acted in June 2016 to uphold a lower court decision blocking the Obama immigration policy known as DAPA &#151 "deferred action for parents of Americans."
      By speaking out now &#151 with the shoe on the other foot, so to speak &#151 Thomas and legal conservatives open themselves to charges of opportunism and hypocrisy in their criticisms. Liberal justices did not answer Thomas's critique of nationwide injunctions in the earlier case when they dissented from the Court's decision on the merits.
      The liberal bloc &#151 Ginsburg, Breyer, Sotomayor, and Kagan &#151 similarly did not respond in the recent case to Gorsuch's critique of the practice with Thomas but none of the other conservatives in tow. Sotomayor did respond, however, in a dissenting opinion when the same five-vote conservative majority voted on Feb. 21 to stay a narrow injunction against the public charge rule issued by a federal judge in Chicago limited to the state of Illinois.
      Sotomayor criticized the Trump administration for what she called the "now familiar" practice of asking the Supreme Court to stay lower court decisions even with appeals pending. In a seven-page opinion written only for herself, Sotomayor criticized the Court itself as well for granting such requests: "It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it."
      In short, the attack on nationwide injunctions is little more than a politically motivated argument from an administration that designs policy initiatives so poorly as to be on the losing side often in lower courts that the president cannot control. The Court's willingness to oblige the Trump administration in many of those cases unfittingly diminishes its "original meaning" role as an independent check on the powers of the executive branch.


Sunday, February 23, 2020

Overlooked: Need to Remember Civil Rights Heroes

      Nearly a century after his unremarked-on death, Homer Plessy has gained a measure of the recognition that he deserves for challenging racial segregation in his home state of Louisiana in the 1890s. Plessy's name is immortalized in law books and American history as the unsuccessful litigant in the Supreme Court's disgraceful decision in Plessy v. Ferguson (1896) to uphold legally mandated racial segregation in passenger railroad cars.
      Plessy's name may be well known, but his life and death escaped the Times's editors' attention when the former shoemaker and civil rights activist died in New Orleans at age 61 on March 1, 1925. The Times, the nation's self-described "newspaper of record," published a full-length obituary last month [Jan. 31] under a headline that succinctly captures Plessy's place in history: "He sat on a train and stood up for civil rights."
      The obituary, byTimes contributor Glenn Rifkin, details Plessy's role in working with a local citizens' committee in a staged test of Louisiana's then-new Separate Car Act. Rifkin treats the episode as a precursor to Rosa Parks' more successful anti-segregation protest 60 years later in the Montgomery, Ala., bus boycott. The obituary is one in a series of life stories of important African Americans long since deceased that the Times has been publishing over the past year as part of its "Overlooked" project.
      Some of the others featured in the project so far include, for example, the ragtime master Scott Joplin (1867-1917); the inventor Granville T. Woods, known as "the black Edison (1856-1910); and the New York City real estate magnate known as the father of Harlem, Philip A. Payton Jr. (1876-1917).  Others include the crusading anti-lynching journalist Ida Wells (1862-1931); the Greenwich Village transgender activist Marsha Johnson (1945-1992); and the Harlem Renaissance writer Nella Larsen (1891-1964).
      In introducing the project, the Times noted that obituaries published since the newspaper's founding in 1851 "have been dominated by white men." The project's stated aim is to "add the stories of other remarkable people," with evident effort to correct the underrepresentation of women and people of color. Along with the many obituaries of African Americans, the project has also published obituaries of such famous white female artists as the photographer Diane Arbus (1923-1971) and the poet Sylvia Plath (1932-1964).
      However important the Times's belated recognition of historic African Americans may be, a leading American historian has recently noted a larger issue of public remembrance: the relatively few public monuments to civil rights figures in comparison to the much larger number of Confederate statues, monuments, markers, and so forth. Alison Parker, chair of the history department at the University of Delaware, noted the discrepancy in an essay published in the Times earlier this month [Feb. 6].
      "There are now more than 1,740 Confederate monuments, statues, flags, place names and other symbols in public spaces across the country, not counting more than 2,600 markers, battlefields, museums and cemeteries that commemorate the Confederate dead or the many hundreds of statues of staunch segregationists," Parker wrote. "To date, only about 115 have been removed. In stark contrast, fewer than 100 monuments pay tribute to the civil rights movement."
      Most of the Confederate monuments, Parker explained, were erected not immediately after the end of the Civil War, but in the 1890s and 1900s ”by Southern whites hoping to justify the spread of Jim Crow while erasing the legacy of Reconstruction." The resistance to removing or displacing some of those monuments glosses over those political motives in arguing against "erasing history." Parker aptly characterizes the monuments as "symbols of white supremacy."
      The smaller number of civil rights memorials include most prominently the Martin Luther King Memorial in Washington, D.C., the only major monument to a non-government official on the National Mall. The National Park Service site, dominated by the larger-than-life granite statute of King, opened in 2011, more than 40 years after his assassination.
      Parker is author of a forthcoming biography of Mary Church Terrell (1863-1954), who founded the National Association of Colored Women and played an important but under-recognized role in the women's suffrage movement before ratification of the 19th Amendment in 1920. Her role and the earlier role played in the suffrage movement by the former slave Sojourner Truth are gaining some belated recognition along with the better-known white suffragists Susan B. Anthony and Elizabeth Cody Stanton. A monument planned for New York City's Central Park was redesigned in August 2019 to include a statue of Sojourner Truth along with Anthony and Stanton.
      In another instance of belated recognition, Maryland unveiled statues this month [Feb. 11] on the statehouse grounds to honor two of the state's historic black figures: Harriet Tubman, the ex-slave famous for her work with the Underground Railroad, and Frederick Douglass, who escaped slavery as a youngster and became a nationally and internationally prominent advocate for abolition.
      A statue honoring Rosa Parks was installed two months earlier on the grounds of the Alabama state Capitol in Montgomery [Dec. 11, 2019]. Homer Plessy, it appears, has not been memorialized in bronze or stone, but he is remembered in New Orleans. The site of his arrest, the Press Street Rail Yard, is marked with a plaque relating the event; and Plessy's grave, in the city's St. Louis Cemetery, also bears a marker explaining the episode. The state of Louisiana went further in 2005  by proclaiming June 7, the date of Plessy's arrest, as Homer Plessy Day statewide.
      In the obituary, Rifkin notes that Plessy paid the $25 fine for riding in the whites-only car after the Supreme Court's decision and that he "vanished into obscurity" in contrast to Parks' later celebrity after the Montgomery bus boycott. Along with King, the leaders and foot soldiers of the civil rights revolution deserve at least as much recognition, if not more, than the Confederate generals and Silent Sams who fought with supposed honor for a far less honorable cause.

Friday, February 14, 2020

Trump Taking Revenge on Rule of Law

      President Trump is taking his revenge for his impeachment on witnesses in the proceedings and, more ominously, on the rule of law itself. Trump came under withering criticism this week [Feb. 12-13], except from complaisant Republican senators, for intervening by tweet in the criminal case against his convicted-felon friend and confidant, Roger Stone.
      Stone, it will be recalled, was convicted on Nov. 15, 2019, of seven felony counts for lying to congressional investigators and obstructing the congressional investigation into the Trump campaign's involvement with the Wikileaks disclosures of emails damaging to Hillary Clinton's campaign. Trump denounced the verdict at the time and stepped up his intervention in the case with an early-morning tweet [Feb. 12] after the career prosecutors in the case recommended a seven- to nine-year prison sentence for Stone under federal sentencing guidelines.
      Trump called the recommended sentence "horrible and very unfair" and added, without specifying a course of action, "cannot allow this miscarriage of justice." With the tweet reverberating through Washington, Trump later clarified to reporters that he had not spoken directly with his attorney general, William Barr, or anyone else at the Department of Justice about the sentencing.
      Even without direct communication, however, senior DOJ officials overruled the prosecutors' recommendation within the day and substituted a new sentencing memorandum with no specific recommendation for the judge on the prison term for the septuagenarian Stone. The career prosecutors from the U.S. attorney's office in Washington responded that day by withdrawing from the case; one went further by resigning from the Justice Department altogether.
      Former federal officials and prosecutors were among the many legal experts who denounced what the New York Times called in its news story the "extraordinary decision" to overrule the prosecutors who had handled the case. In an op-ed for the Washington Post, Chuck Rosenberg, a former U.S. attorney and senior FBI official, went beyond "extraordinary" to call the decision "deeply troubling" and "alarming."
      Rosenberg added praise for what he called the "principled resignations" by the prosecutors in the case. "We all understand that the leadership of the department is politically appointed," he wrote, "but being asked by that leadership to allow politics to corrode our work is not remotely normal or permissible."
      On Capitol Hill, Senate Judiciary Committee Chairman Chuck Grassley, Republican of Iowa, told reporters he had no concerns about Trump's tweet because Stone's sentence was ultimately up to the judge in the case, Amy Berman Jackson. Leaving no stone unturned, Trump followed the next day with a tweet attacking Jackson, wrongly, for having put his former campaign chairman, Paul Manafort, in "solitary confinement" after Manafort's August 2018 conviction for eight counts of financial fraud.
      Trump's tweets, combined with the firing of two of the witnesses in the impeachment inquiry, eliminated any lingering thoughts that he might have been chastened by the experience of having been impeached by the House of Representatives for abuse of office and obstruction of Congress. Following the Senate's acquittal, Maine's independent-minded Republican senator, Susan Collins, went so far as to "predict" that Trump would "learn his lesson" from the episode.
      The tweets prompted different assessments from Democrats of what Trump had taken away from his experience. "He learned that he could get away with corrupting his office without any consequences," Sen. Chris Murphy, D-Conn., said in an appearance on CNN.
      Trump himself emphasized for any who asked that he was unchastened by the experience. At the White House, he answered reporters' questions by saying that he had learned "that the Democrats are crooked." Later, in a telephone call to Fox and Friends on Thursday [Feb. 13], Trump repeated his grandiose view of presidential power. "This is my country and I will do as I please," Trump declared, with no contradiction from the Fox News hosts.
      Congressional Democrats were predictably outraged by Trump's intervention in Stone's case while Republicans on Capitol Hill turned away from reporters' questions or mumbled meaninglessly. Adam Schiff, the House's lead impeachment manager, complained in a tweet that Trump "urges lighter sentences and dangles pardons" for "those who were convicted of lying to cover up his crimes" and "retaliates against witnesses and public servants." Meanwhile, Schiff concluded, "Republicans' response? Silence."
      By week's end, however, Trump drew mild criticism for his tweet from a seemingly unlikely source: Barr himself. In an interview with ABC's Pierre Thomas on Thursday [Feb. 13], Barr maintained that he had already intervened to change the sentencing recommendation in Stone's case before Trump's tweet. Barr said he had met with U.S. attorney Timothy Shea, his former aide, on Monday and understood Shea to have agreed to change the recommendation.
      Barr called Trump's subsequent tweet "disruptive" and complained that the president's tweets "make it impossible for me to do my job and to assure the courts and the prosecutors in the department that we're doing our work with integrity." Barr's protestation did little to mollify critics, however, who charged him with politicizing the department by, among other steps, agreeing to investigate any information that Trump's personal attorney Rudy Giuliani turned up in Ukraine about the Bidens.
      Barr said he had no concerns about the mild pushback against Trump, but the president's actions earlier sent clear signals that anyone who crossed him did so at his peril. Trump fired his own ambassador, Gordon Sondland, the week before [Feb. 7] and followed the same day with high-profile revenge against Lt. Col. Alexander Vindman, the National Security Council aide who provided damning testimony about Trump's motives in the Ukraine episode. Vindman was fired and summarily escorted out of the White House with no time for farewells. Adding injury to insult, Trump even suggested that the military might want to consider disciplinary charges against Vindman.

Saturday, February 8, 2020

Trump's Acquittal Sets Dangerous Precedent

      With 20-20 hindsight, history has judged that the Senate voted wisely, even if along partisan lines, in acquitting President Andrew Johnson and President Bill Clinton in their impeachment trials in 1868 and 1999. History, however, is likely to render a different verdict on the Senate's party-line acquittal of President Trump last week [Feb. 5] on the two articles of impeachment brought by the House of Representatives: abuse of office and obstruction of Congress.
      As precedent, the Senate's one-vote acquittal of Johnson stands for the proposition that the president cannot be impeached for disregarding a constitutionally dubious law that would interfere with his constitutional power to appoint and remove members of his cabinet. Clinton's more conclusive acquittal, with less than a majority of senators voting to convict and remove, stands for the proposition that a president cannot be removed for personal misconduct unrelated to his conduct in office.
      Trump's acquittal stands instead for the unsettling propositions that a president can get away with abuse of office and obstruction of Congress as long as he retains and cultivates the support of senators of his party. Days before the anticipated vote, presidential historian Tim Naftali warned in an appearance on CNN [Feb. 2] that he feared the legacy of the Trump impeachment would be "that the president can do what he wants . . . because he will pay no price."
      Naftali, celebrated for insisting on a historically accurate depiction of the Watergate scandals when he was in charge of the Nixon presidential library in California, subtly underlined his warning by consciously channeling Trump's infamous distortion of the Constitution's grant of presidential power. "Article II gives me the power to do whatever I want," Trump declared in July 2019, with the House's impeachment inquiry not yet underway.
      Other historians were similarly downcast in comments on the likely legacy of Trump's anticipated acquittal published in an article earlier the same day in The Washington Post. "It's a dispiriting moment," historian Jon Meacham commented. "The president’s party, instead of being a check on an individual’s impulses and ambitions, has become an instrument of them.”
      Trump and his legal team encouraged Republican senators to stay in line with a combination of political hardball and legal malarkey. In the days before the Senate was to vote on the pivotal issue of calling more witnesses, a White House confidant was quoted by CBS News as having sent an unveiled threat. "Vote against the president," the unnamed source was quoted as saying, " and your head will be on a pike."
      Republicans generally disputed the account after the House Democrats' lead manager, Adam Schiff, quoted it during the Senate floor debate [Jan. 24]. But a Democratic senator, Ohio's Sherrod Brown, later described fear as a major motivation for Republican representatives and senators alike in opposing impeaching or convicting Trump.
      "They are afraid that Mr. Trump might give them a nickname like Low Energy Jeb' and 'Lyin’ Ted,'or that he might tweet about their disloyalty," Brown wrote in an <op-ed in The New York Times [Feb. 5]. "Or — worst of all — that he might come to their state to campaign against them in the Republican primary."
      Trump and his lawyers cultivated the GOP senators' support not only with a threatened stick but also with actual carrots in the form of financial assistance for senators facing re-election in November. Trump formed a joint fundraising committee with Georgia's David Perdue, for example, and was offering fundraising help to others, according to a report by the campaign finance watchdog group Open Secrets.
      The report noted that several GOP senators had also been received campaign contributions in years past from members of Trump's legal defense team. Kenneth Starr, for example, gave South Carolina's Lindsey Graham $2,700 in 2017; Jay Sekulow had contributed over the years to several others, including Texas's Ted Cruz and South Dakota's John Thune.
      The lawyers played a more important role, however, with hour after hour of nit-picking and pettifoggery. White House counsel Pat Cipollone and his deputy, Patrick Philbin, quibbled about some of the events in Trump's attempt to pressure the new Ukrainian president to dig up dirt on the Bidens but failed to challenge the essential account in the House's abuse-of-office article against the president.
     More troublingly, Alan Dershowitz, professor emeritus at Harvard Law School, gave senators legal rationalizations for voting to acquit Trump by telling them that impeachment requires proof of a federal statutory crime. That represented a change of position from his stance during the Clinton impeachment two decades earlier &#151 based, he said, on additional research.
      Dershowitz also made the truly astonishing claim that the president could solicit an actual quid pro quo with impunity if he thought it would advance his re-election. "[I]if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment," Dershowitz said in an argument that drew nothing but scorn from other legal experts.
      The Republican senators who voted for acquittal in near lockstep will bear the weight through history of accepting that argument and licensing what several of them acknowledged as Trump's "improper" conduct. As the lone Republican to break ranks, Utah's Mitt Romney, the party's presidential nominee in 2012, actually invoked history in an anguished speech explaining his decision. To ignore the evidence for a partisan end, he said, would "expose my character to history's rebuke . . . "

Sunday, February 2, 2020

Lies and Lame Excuses Complete Trump's Cover-Up

      Republican senators and White House counsel Pat Cipollone reacted with indignation when the House manager Jerrold Nadler accused Republicans of complicity in President Trump's cover-up by voting against calling witnesses in his Senate impeachment trial. Rather than refuting the accusation, however, Senate Republicans effectively proved it last week [Jan. 31] by voting down every Democratic proposal to call witnesses or subpoena documents to make Trump's impeachment trial something other than an open-and-shut sham.
      With only two defections, the Senate's Republican majority rejected, among other proposals, a motion by the Democratic leader Chuck Schumer to subpoena former national security adviser John Bolton to elaborate on his reported account of a direct, early conversation with Trump on Ukraine.
      Bolton's account in his tell-all book The Room Where It Happened: A White House Memoir could have filled the evidentiary gap that Trump's lawyers and Republican senators have repeatedly emphasized in challenging the articles of impeachment voted by the House of Representatives. Despite damning testimony before the House Intelligence Committee, Trump's defenders claim that no one has presented direct evidence showing that Trump pressured the new Ukrainian president to dig up dirt on his political rival Joe Biden in exchange for signing off on military aid to the embattled U.S. ally.
      Bolton claims in his book that Trump directed him in May, two months before Trump's notorious July 25 phone call with the Ukrainian president Volodymyr Zelensky, to cooperate with Trump's designated hatchet man Rudy Giuliani in digging up dirt on Biden and Biden's wayward son Hunter Biden. Bolton's account  not only fills in an evidentiary gap but also directly implicates Cipollone by placing him in the meeting as well.
      Cipollone's direct involvement in the events at issue should disqualify him from representing Trump in the proceeding under the well established legal ethics rule that a lawyer cannot be both a fact witness and an advocate. But legal ethics is not Cipollone's strong suit. Thus, he was guilty of a blatant falsehood in defending Trump on the Senate floor by claiming that Republicans were barred from the closed-door depositions conducted by the House Intelligence Committee.
      A second member of Trump's legal defense team added another falsehood in a bogus attempt to discredit the House proceedings. Jay Sekulow, a lawyer dubiously enriched by siphoning charitable donations for himself and family members, falsely claimed that the House committee had refused to allow Trump's lawyers to access evidence or cross-examine witnesses.
      Any procedural shortcuts in the House proceedings, however, pale in comparison to the unprecedented procedural flaw in the Senate trial, now apparently to be brought to an end with no witnesses whatsoever. Through history, the Senate has conducted 15 impeachment trials, with witnesses called in every previous instances, including the two presidential impeachments against Andrew Johnson in 1868 and Bill Clinton in 1999.
      To justify voting against witnesses, two Republicans once thought open to hearing more evidence offered the lamest of excuses. In the end, only two Republicans voted with the 47 Democrats to break Trump's cover-up by voting to call witnesses or subpoena documents: Utah's Mitt Romney and Maine's Susan Collins. Two others, Alaska's Lisa Murkowski and Tennessee's Lamar Alexander, explained their eventual decisions in statements that simply fall apart even on cursory examination.
      Both claimed to have worked with others to allow hearing witnesses before casting their pivotal votes the other way. In her statement, Murkowski acknowledged that additional witnesses might have cured the "shortcomings" of what she called the partisan House process, but said she decided in the end that "there will be no fair trial in the Senate" and that "the continuation of this process will not change anything."
      For his part, Alexander contended in his written statement that there was "no need for more evidence to prove something that has already been proven and that does not meet the U.S. Constitution's high bar for an impeachable offense." Alexander in effect presumed that testimony from the witnesses that Trump had prevented from testifying could not shed further light on Trump's motive in pressuring Zelensky to investigate the Bidens.
      Trump's lawyers had grounded their defense on Trump's supposed interest in combating corruption in Ukraine. By the time of the phone call with Zelensky, however, Hunter Biden had left the Ukrainian gas company Burisma and the U.S. State Department had given the new Ukrainian regime a clean bill of health on anti-corruption policies.
      The seeming contradiction could have been explored with testimony from witnesses such as Bolton, Trump's acting chief of staff Mick Mulvaney, or any others in direct contact with Trump. In short, additional testimony could have shown whether Trump's proven conduct — "inappropriate," in Alexander's judgment — met what the senator called the "high bar for an impeachable offense" if motivated solely by personal political benefit rather than any broader policy purpose as Trump and his lawyers claimed.
      With the course of the trial in the balance, Murkowski concluded, with professed sadness, that Congress "has failed." The failure, sad to say, is yet to come, but seemingly inevitable with Senate Republicans having decided to cast their lot with a president who has obstructed the impeachment inquiry at every step. With the cover-up complete, a deeply divided nation will be denied the closure that a full airing of the facts might have allowed.

Sunday, January 26, 2020

In Senate, Republicans Mock Impeachment Trial

      The Senate's Republican majority, unimpressed with the import of charging the president with impeachable offenses, are making a mockery of President Trump's impeachment trial in and outside the chamber even as House Democrats lay out the case against the president. Republicans are mocking the portentous event not merely by adopting the illogical position of trial first, witnesses later, but also by breaching the rules for decorum that the Republican leader Mitch McConnell had laid out for the trial. 
      Reporters in the press galleries recount that Republican senators were frequently absent, inattentive, or dismissive during the long sessions over three days when the House managers laid out the evidence of Trump's abuse of public office and obstruction of Congress. South Carolina's Lindsey Graham, for example, was said to have been absent from the Senate floor for 30 minutes at a time. Tennessee's Marsha Blackburn absented herself long enough one night to do an interview with Fox News. Kentucky's Rand Paul displayed a piece of paper with  "S.O.S." written on it as though he was being held hostage.
      Imagine a trial with jurors flitting in and out of the jury box or chatting amongst themselves at times. Chief Justice John Roberts, bound by the same constitutional oath as the senators to do "impartial justice," has observed all of these Republican shenanigans while presiding over the trial, but has said nothing to admonish them to behave themselves.
      By his lights, Roberts may think he is living up to his confirmation-hearing standard of being a neutral umpire, but he is not being even-handed by ignoring the misbehaving Republicans. An umpire who ignores the chirping from the home-team dugout while the visitors behave well in theirs would be giving the home-team an edge, just as Roberts is favoring the Republicans by letting them get away with their disorderly conduct.
      In fact, Roberts' only intervention in the trial so far amounted to putting his thumb on the scales of justice in favor of the Republicans' side, as commentator Elie Mystal wrote in a column for The Nation.  Roberts admonished both sides, the Democrats and Trump's lawyers, to be more civil after the House Democrats' manager Jerrold Nadler accused the Republican senators of being "complicit" in Trump's "cover-up" by voting against calling new witnesses.
      Roberts spoke up not on his own, but only after one of the Republican senators, Maine's Susan Collins, passed him a note to register a complaint about Schiff's remark. White House counsel Pat Cipollone had already complained about Nadler's remark. "This is the Senate, Mr. Nadler," Cipollone commented from the floor. "You're not in charge here."
      Before the trial began, some liberal commentators, Harvard law professor Laurence Tribe for one, had voiced the hope that Roberts would exert some influence in favor of calling witnesses and subpoenaing documents to fill in the gaps in the Democrats' case. But Roberts has said nothing as the 53 Republican senators, every single one of them, have voted in party-line lockstep against calling the non-testifying witnesses such as former national security adviser John Bolton or demanding documents on the Ukraine issue that have been withheld by the State Department and the Office of Management and Budget (OMB).
      In advance of the trial, three GOP senators — Maine's Collins, Alaska's Lisa Murkowski, and Utah's Mitt Romney — were reported to be open to calling new witnesses for the trial. But none of them deviated, not even once, from the party line. With those votes cast, evidence emerged that the White House has explicitly threatened any senators who break ranks. Quoting an unnamed Trump confidant, CBS News reported at week's end that the White House has sent this word to potential GOP defectors: "Vote against the president, and your head will be on a pike."
      Imagine, now, a trial in which the defendant's defense team openly threatens jurors with retaliation. Schiff noted the report in remarks from the floor while acknowledging that he could not verify it. Collins and Murkowski were both quoted later as saying no such threat had been conveyed; Oklahoma's James Lankford said all of the Republicans were "shaking our heads."
      The evidence that the House managers laid out over 24 hours spread out over three days showed, beyond dispute, that Trump had appealed to Ukraine and China, in remarks from the White House lawn, to open politically charged investigations of the business affairs of former vice president Joe Biden's son Hunter Biden. The evidence, in Trump's own words, is beyond dispute, but apparently not beyond Republicans' capacity for denial. "I'm not saying it's OK," Indiana's Mike Braun said when questioned by a reporter. "I'm saying that it didn't happen."
      In real trials, judges frequently admonish jurors to keep their minds open and avoid any discussion of the trial until they have heard all of the evidence and all of the arguments from both sides. With no such admonition from Roberts, Republican senators are making no effort whatsoever to keep open minds. "I've already made up my mind," North Carolina's Thom Tillis declared on camera.
      Democrats have been more circumspect, limiting themselves to comments more tentative. Interviewed by one of the cable news channels, Connecticut's Richard Blumenthal said simply that the House managers had presented "a compelling case." The White House defense team answered in a two-hour presentation on Saturday [Jan. 25] that White House counsel Cipollone opened by declaring, "The president has done nothing wrong" — nothing wrong, that is, in seeking foreign interference in the presidential election and in obstructing the House's impeachment inquiry.

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."