Impeach Trump to Deter Future Presidents

      Before Watergate. few students of the American presidency would have thought that a president would send burglars into an opposing political party headquarters and then direct hush-money payments to the burglars to keep them from spilling the beans. But President Richard M. Nixon did those things and, after incontrovertible proof emerged, resigned in the face of a certain impeachment, conviction, and removal from office.
      Nixon's cut-short impeachment establishes a clear precedent of what constitutes "high crimes and misdemeanors" under the Impeachment Clause and serves to deter any future chief executive from repeating his misconduct. Today, President Donald Trump must be impeached for his attempt to solicit a foreign government's interference in the 2020 election to deter him from doing it again and to set the precedent for future chief executives.
      Trump actively solicited Russia's interference in the 2016 election and consciously benefited from the Putin government's disinformation campaign against Trump's opponent, Hillary Rodham Clinton. Trump escaped accountability for his actions after special counsel Robert Mueller failed to find prosecutable evidence that Trump and his campaign directly colluded with the Russians in their interference.
      Trump took from this episode the lesson that he could get away with it. Three years after the infamous Trump Tower meeting to gather dirt on Clinton from the Russians, Trump went so far as to tell ABC's George Stephanopoulos that he would take information on a future opponent from a foreign government. "There's nothing wrong in listening," he told Stephanopoulos. "I think I'd want to hear it."
      Long after the fact, it is now known that Trump actually told Russian diplomats during a meeting in the Oval Office four months after taking office that he had no concerns about the Russians' interference in the 2016 election. Unchastened, Trump directly asked for Ukraine's help in the 2020 election in his now infamous July 25 telephone call with Ukraine's newly elected president, Volodymyr Zelensky.
      The so-called "rough transcript" of that telephone conversation, as eventually released by the White House, confirms the incriminating account that the unidentified intelligence community whistleblower pieced together in the course of his official duties from others with direct information about the call. The "memorandum" of the call shows that Trump dangled military aid before Zelensky as he asked the Ukrainian head of state for his government's assistance in investigating former vice president Joe Biden, currently the leading Democratic candidate to oppose Trump in 2020.
      Even with the damning evidence for all in Congress and the American public to see for themselves, Trump has continued to insist the call was "perfect," not merely innocent. House Speaker Nancy Pelosi moved quickly to greenlight an impeachment inquiry in the Democratic-controlled House of Representatives. By midweek, more than 218 Democrats —  a majority in the 435-member House —  had publicly supported Pelosi's move, suggesting that Trump is now all but certainly facing impeachment by the House and a trial in the Senate for yet-unspecified high crimes and misdemeanors.
      With the 2020 election still a year away, the House must impeach Trump if for no other reason to warn him against any other election-related misconduct. Timothy Snyder, the Yale historian who raised alarms early in Trump's presidency of tyranny-creep, aptly noted Trump's lack of remorse in an appearance with MSNBC's Rachel Maddow on Friday [Sept. 27]. "Seeking foreign interference in two elections is a record unlikely ever to be broken," Snyder remarked.
      At Pelosi's direction, the Democratic strategy for now appears to be to gather evidence on Ukraine-gate quickly —  Secretary of State Mike Pompeo received strongly-worded subpoenas on Friday — and then move on after hearings to a single-count article of impeachment. That "short and sweet" strategy may be best politics for the steep uphill road that Democrats face in an eventual trial in a Senate controlled by Republicans who cower in fear of being "primaried" by Trump's base.
      Republicans and Trump apologists —  but I repeat myself —  have concocted a false narrative that Trump actually wanted to help Ukraine ferret out corruption of the sort that  he and the manic Rudy Giuliani falsely imagine Biden and his son Hunter committed.  To be clear, Ukraine's prosecutor has stated that Hunter Biden did nothing illegal as a board member of the Ukrainian oil company and Joe Biden, as vice president, helped oust the former prosecutor for lack of anti-corruption initiatives.
      A one-count article of impeachment against Trump would establish that a president's soliciting a foreign government's assistance in gathering dirt on a political opponent amounts to impeachable conduct even if, in the political circumstances, he is not convicted. The precedential value of an impeachment could be increased if other counts were added — for example, for Trump's open and notorious violation of the Constitution's Emoluments Clauses, as argued in this column as early as 2017.
      With the evidence not yet disclosed, Biden accurately described what we now know Trump did in the phone call. "That is not the conduct of an American president," Biden said. Sadly, it was, but one hopes never again.
      Trump has lowered the bar for presidential conduct from his first day in office, but Congress must at least draw a line against using the presidency for a shakedown in the manner of a Mafia don. The House's duty is clear even if conviction in the Senate is unlikely and the political effects of the process unclear. Yes, "Impeach Now."

For Same-Sex Couples, No Equality Under 'Special Rules'

      Back in the day when anti-LGBT campaigns were in fashion, opponents tried to rally the public against gay rights with campaigns built around the powerful if misleading slogan, "No special rights." The anti-gay groups used the slogan to stall or block anti-discrimination measures by arguing to lawmakers and voters that equal treatment under the law would give gay folk a privileged status instead of the legitimate birthright guaranteed to all Americans.
      Decades later, LGBT advocates achieved a landmark victory with the Supreme Court's decision in 2015 guaranteeing equal marriage rights for same-sex couples nationwide. Four years later, however, some same-sex couples are discovering that their ostensibly equal rights come with an asterisk: "special rules" that grant them fewer rights than opposite-sex couples enjoy.
      Within recent days, the U.S. Department of State and the Arizona Supreme Court have given their stamps of approval to policies that reduce same-sex couples' unions to second-class marriages under the law. The victims of these decisions are same-sex couples shopping for wedding invitations in Phoenix and a married gay couple in Maryland seeking to establish U.S. citizenship for their Canadian-born infant daughter.
      The Arizona court's 4-3 decision in Brush and Nib Studio LC v. City of Phoenix marks the first time a state court has squarely held that a company serving the public has a constitutional right to violate an anti-gay discrimination law. The stationery store, owned by two self-identified Christians who cite religious beliefs in opposing same-sex marriage, sued the city in state court claiming a First Amendment right to refuse to print customized wedding invitations for same-sex couples.
      Writing for a majority that included four Republican-appointed justices, Justice Andrew Gould concluded that it would amount to unconstitutional "compelled speech" to require Brush and Nib's owners to customize invitations with the customary request to join in celebrating a marriage that they disapprove of. The dissenting justices, the Court's only Democratic-appointee and two Republicans, contended that the city's ordinance regulated conduct, not speech, with only "incidental" effect on the store owners' speech rights.
      Supreme courts in three other states have rejected similar claims by anti-gay marriage business owners: a baker in Colorado, a photographer in New Mexico, and a florist in Washington. The U.S. Supreme Court ruled for the Colorado baker in its  decision Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission in 2017 only by finding that the state agency's decision to fine the baker was tainted by religious bias.
      The Washington Supreme Court reaffirmed its decision in the florist's case after the U.S. justices sent the case back with instructions to reconsider the case in the light of Masterpiece Cakeshop. In short, the Arizona court's decision, filed on Monday [Sept. 16], breaks new ground by throwing same-sex couples under the religious-liberty bus when claiming rights to equal treatment under state or local anti-discrimination laws.
      The Maryland couple's dispute with the State Department marks the most recent skirmish for married same-sex couples raising children born through some form of assisted reproduction. Roee Kivit and Adiel Kiviti, Israeli-born U.S. citizens who married in California in October 2013, used a gestational surrogate to give birth to their second child, a daughter, in Calgary, Canada, earlier this year.
      K.R.K.'s birth certificate accurately lists Roee and Adiel as parents, not the surrogate mother. But the State Department has refused to issue a passport showing K.R.K. to be a U.S. citizen, just as a child of married U.S. citizen parents ordinarily would be even if born abroad. The State Department is ignoring the couple's marriage by invoking an immigration law provision that limits citizenship for an out-of-wedlock child born outside the United States.
      For an unmarried couple, a child born abroad to U.S. citizen parents is entitled to U.S. citizenship only if both parents satisfy a durational U.S. residency requirement: specifically, at least five years' residence in the United States prior to the birth. Adiel does not satisfy that requirement: he became a lawful permanent resident in 2015 and a U.S. citizen in 2019.
      Lawyers from Lambda Legal, representing the couple, argue in a 22-page complaint filed earlier this month [Sept. 12] in federal district court in Rockville that the State Department policy is contrary to law and unconstitutional as well. The policy, the lawyers argue, discriminates against the couple because of their sexual orientation and serves "no rational, legitimate, substantial, or compelling government interest."
      Admittedly, children born to married same-sex couples pose novel issues for the law, but the Supreme Court has already issued one ruling that, in effect, requires states to treat same-sex couples just as they would treat opposite-sex couples. The summary 6-3 decision in Pavan v. Smith (2017) required Arkansas to list two married lesbians as parents on their child's birth certificate: the biological mother as well as her female spouse.
      The Court noted that a married opposite-sex couple would both be listed as parents of a child born through assisted reproduction, even if the husband was not the biological father. The ruling emphasized that the Court's marriage-equality decision, Obergefell v. Hodges, entitles same-sex couples to marriage "on the same terms and conditions as same-sex couples."
      The State Department policy flies in the face of that command and illustrates the need to continue educating and pressuring officials at all levels of government to give same-sex couples the full measure of equality under the law. Until that day, the fight for LGBT rights is not yet won.

Roberts Court Indulges Trump on Asylum Rules

      The Supreme Court played the role of President Trump's lap dog once again last week [Sept. 11] by allowing the administration to put into effect new asylum rules that effectively nullify the federal law guaranteeing asylum applicants the chance to make their case in U.S. immigration courts.
       Trump trumpeted the Court's action, with two liberal justices dissenting, as a "big win" for the administration. The Court's brief, unsigned order in Barr v. East Bay Sanctuary Covenant greenlighted new rules that a federal judge in San Francisco had found to be inconsistent with U.S. asylum law and that a federal appeals court had blocked pending the government's appeal.
      Apart from the merits of the issue, the episode is significant as the administration's most recent instance of asking the Court for "extraordinary" relief in high-profile legal disputes after losing in lower courts. Under ordinary procedures, the losing party in a lawsuit is not entitled to stay the effect of a lower court decision while pressing its appeal.
      The Trump administration, however, has resorted with what one expert calls "unprecedented frequency" to asking the Supreme Court to stay adverse decisions in lower courts  with the outcome on appeal uncertain. Steven Vladeck, a law professor at the University of Texas in Austin, shows in a new law journal article that the Trump administration has sought extraordinary relief from the Supreme Court more than 30 times in the past three years, more than twice the number of such instances by the previous two administrations over the previous 16 years.
      The Court's decision to allow the new asylum rules marks the second time in less than three months that the justices let this most lawless of presidents put into effect a policy on a highly charged political issue that a lower court had blocked. The justices divided 5-4 in an unsigned order issued on July 28 that allowed the administration to transfer Defense Department funds to Trump's southern border wall after Congress refused to appropriate funds for that purpose.
      In that instance, the Court gave a reason of sorts for its action. The unsigned, one-paragraph order noted "strong doubts" that the environmental groups challenging the reprogramming of military funds had legal standing to vindicate Congress's authority over federal spending. Vladeck criticizes both the administration's tactics and what he calls the Court's "acquiescence" in the unusual practice as short-circuiting ordinary appellate procedures to the disadvantage of private parties challenging the government.
      Ostensibly, the Court's rules requires an applicant seeking a stay of a lower court decision pending appeal to show it will suffer irreparable injury without a stay. Vladeck notes that Roberts has written that the government suffers an irreparable injury when blocked from putting its policies into effect during a legal challenge. Private plaintiffs unsuccessfully challenging a government policy do not get that kind of solicitude if they complain of irreparable injury while they suffer the effects of the challenged policy.
      The Trump administration has had what Vladeck calls a "middling" success rate on these extraordinary requests. Along with the latest wins on asylum rules and the border wall funding, the administration was also allowed to put into effect its limits on transgender military service members despite four lower court rulings to block it.
      The justices also favored the administration by blocking the federal judge in the census case from deposing Commerce Secretary Wilbur Ross under oath about his reasons for adding a citizenship question to the 2020 census. On the other hand, the Court refused to let the administration rescind the Obama policy known as DACA — deferred action for childhood arrivals —  pending a final decision in the cases challenging the administration's action.
      In the most recent instance, Justice Sonia Sotomayor cited Vladeck's study in criticizing the Court's receptivity to the administration's pleas. "[G]ranting a stay pending appeal should be an 'extraordinary' act," she wrote, quoting a prior decision. "Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively."
      Vladeck implicitly argues that the full Court should be objecting to the administration's tactics. The Court, he notes, has made "no suggestion . . . that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds."
      The administration and its supporters defend the practice by complaining that federal district court judges have been freer than in the past in issuing nationwide injunctions to block administration policies pending appeals. Attorney General William Barr noted in an op-ed in the The Wall Street Journal that federal judges have issued 40 nationwide injunctions during the Trump years, but issued only 20 such rulings during the eight years of the Obama administration.
      Jonathan Turley, a frequent legal affairs commentator and law professor at George Washington University Law School, similarly sees the administration's tactics as a response to nationwide injunctions, which he says create "a dysfunctional element in the court system and a more direct avenue to the Supreme Court for the government." Some of the justices, he adds, appear to be "losing patience with national injunctions by trials . . . ."
      The Roberts Court has been less than evenhanded in the area. The Court took no action to allow the Obama administration to put its so-called DAPA policy — deferred action for parents of Americans — into effect after a federal judge in Texas issued a nationwide injunction to block the policy. The Court's solicitude toward Trump's policies is further evidence, alas, that the five Republican-appointed justices did not leave their party registration cards behind them after donning their judicial robes.

In Carolina, GOP Nixes Racial Justice on Death Row

      North Carolina's legislative and gubernatorial elections in 2012 turned out to be matters of life or death for six of the 143 inmates currently awaiting execution on the state's death row.
      The elections that allowed the Republican Party to gain the governorship along with control of the state's legislature resulted less than a year later in the repeal of the state's widely hailed Racial Justice Act. That law, enacted in 2009 and signed by the Democratic governor Beverly Perdue, gave death row inmates a new path to overturn their death sentences by proving racial discrimination in the verdicts or sentences that condemned them to execution.
      Four inmates succeeded in reducing their death sentences to life imprisonment under the law before the Republicans repealed the law.  Perdue had vetoed a GOP-backed repeal in 2012, but the new Republican governor, Pat McCrory, signed a repeal after the Republicans voted again in 2013 to kill the law.
      The repeal included a provision eliminating any relief for inmates not yet final when the repeal took effect. Now, the North Carolina Supreme Court is considering whether the legislature violated constitutional rules in sending those four inmates back to death row and in blocking hearings for two other death row inmates pending at the time of repeal.
      The state high court, with a 6-1 majority of Democratic appointees, heard nearly four hours of arguments in the six cases over two days late last month (Aug. 26 and 27). The arguments from the inmates' attorneys made clear that the racial bias in the four reversed cases might have been strong enough to warrant relief under strict federal constitutional rules even without the easier path under the repealed state law, which required proof only that race was "a significant factor" in verdict or sentence.
      The four reversed cases all came from Cumberland County, which includes the state's sixth largest city Fayetteville. The county's overall population is around 55 percent white and 35 percent black. But the juries in all four cases were all white, thanks to tactics that state prosecutors are instructed to use to justify excluding black jurors.
      In Marcus Robinson's trial, for example, prosecutors rejected half of the qualified black jurors, but only 14 percent of the others. One black juror was disqualified after acknowledging that he had not graduated from high school and that he had difficulty reading — questions not asked of white jurors.
      In Christina Walters' trial, prosecutors excluded 10 of the 14 qualified black jurors, but only four of the 27 qualified white jurors. Tellingly, Walters' two white attorneys failed to preserve objections under the Supreme Court precedent, Batson v. Kentucky (1986), that bars the use of race in exercising peremptory challenges to exclude potential jurors.
      The trials of the two other inmates who won temporary reprieves from their death sentences, Quintel Augustine and Tillman Golphin, followed that pattern. In the arguments last month, one of the North Carolina justices openly acknowledged that the state has done very little to put Batson into effect. The non-profit Center for Death Penalty Litigation has reported that more than half of the state's death row inmates were sentenced by juries with no or little minority representation.
      For Andrew Ramseur and Rayford Burke, the repeal of the Racial Justice Act came as their cases were pending and not yet ruled on. Ramseur's trial in 2010 came against the backdrop of racial sentiment akin to the kind of public hysteria associated with the lynching era. One commenter on the local newspaper's website remarked, "He should be hanging from the nearest traffic light as a warning to the others." At trial, four rows for courtroom spectators were cordoned off by crime scene tape, ostensibly to protect Ramseur.
      In the oral arguments last month, attorneys for the inmates fashioned several arguments to challenge the legislature's authority to strip the inmates of the relief they had won before the Racial Justice Act was repealed or to deny hearings for the other two. The exact issue was unprecedented, as Cassandra Stubbs, the director of the American Civil Liberties Union's death penalty project, wrote in her brief for Robinson. “Never before has any legislature enacted a statute designed to remedy suspected systemic racial bias in capital sentencing,” Stubbs wrote, “only to repeal such a statute when the racial bias was found.”
      The closest precedent in North Carolina law is a 19th century decision that blocked the legislature from superseding a post-Civil War amnesty granted to former Confederate soldiers for crimes committed under orders during the war. Lt. Col. James Keith was accused of massacring 13 civilian prisoners, but the state supreme court ruled that he was entitled to the benefit of the legislative amnesty even though later repealed.
      The inmates' other arguments centered on traditional constitutional principles against ex post facto laws or double jeopardy. They also argued that the provision specifically nullifying any relief that the inmates had already won amounted to an unconstitutional bill of attainder — the term for legislative imposition of punishment.
      The state's lawyers responded, somewhat weakly, that the inmates still had avenues to seek new trials or new sentences even without the repealed state law. In four hours of arguments, the justices seemed to be inquisitive more than argumentative, but the political tinct to the cases suggests that the state is arguing uphill before the Democratic-majority court.

Courts Taking a Bite Out of Establishment Clause

      The Supreme Court took a bite out of the constitutional prohibition against establishment of religion in June by allowing a Maryland state agency to display and maintain a 40-foot Christian cross on public land as a World War I memorial. Writing for the majority in American Legion v. American Humanist Association, Justice Samuel A. Alito Jr. based the decision on the premise that the so-called Peace Cross in Bladensburg, Maryland, had historic significance as a memorial to fallen wartime service members apart from its symbolic affirmation of Christian doctrine.
      Alito's opinion tracked the central argument that Neal Katyal, the former acting U.S. solicitor general, made in defending the Peace Cross on behalf of the Maryland-National Capital Park and Planning Commission. Katyal emphasized that the cross had acquired an "objective meaning" as a memorial to the millions of service members from all sides killed in World War I, including the 49 men from Prince Georges County killed while wearing U.S. uniforms.
      Civil libertarian supporters of church-state separation had expected the Court, with its conservative Republican majority, to allow the cross to continue standing where it has stood for 90 years, but hoped for a narrow ruling that would maintain limits on how far the government can go in favoring or endorsing one specific religion. The American Civil Liberties Union issued a statement on the day of the ruling, June 20, describing it as a "narrow" decision.
      The Court sent a signal a week later, however, that the decision portends a relaxed view for future Establishment Clause challenges beyond the specific facts of the Peace Cross case. In a brief order issued on June 28, the justices told the Eleventh U.S. Circuit Court of Appeals to reconsider its decision to bar the city of Pensacola, Florida, from maintaining a stand-alone, 34-foot Christian cross in a public park in the city. 
      The wooden cross at issue in Kondrat'yev v. City of Pensacola was erected in 1941 by the National Youth Administration to serve as the focal point of what was to become an annual Easter sunrise program — in short, the setting for an annual religious service in a government facility. The appeals court found the cross to run afoul of the Establishment Clause in a decision issued in September 2018, but the Supreme Court gave the city a partial victory in its appeal by ordering the appeals court to reconsider its decision in the light of the justices' ruling in American Legion.
      By the way, the city of Pensacola's official seal includes a Christian cross as its central image. A cross is also the central image in the official seal that Lehigh County, Pennsylvania, adopted in December 1944. The Lehigh County seal is the focal point of an Establishment Clause suit filed by the Freedom From Religion Foundation but rejected on Aug. 8 by a panel of the Third U.S. Circuit Court of Appeals.
      In his opinion for the appeals court, Judge Thomas Hardiman, a two-time runner-up for a Supreme Court seat, applied American Legion in finding no constitutional violation. Hardiman conceded that the plaintiffs suffered legal injury as a result of "direct and unwelcome contacts" with the official seal, but he read the Court's new decision to give a presumption of constitutionality to "longstanding symbols" that incorporate religious imagery
      At the Supreme Court, attorney Michael Carvin, representing the American Legion, conceded that some governmental displays of a Christian cross would likely violate the constitutional prohibition against establishment of religion. In answering a question from Justice Brett Kavanaugh, Carvin adopted Justice Anthony M. Kennedy's suggestion in a decision in the 1980s that a Christian cross atop city hall would be unconstitutional, because, as Carvin explained, "it constitutes proselytizing."
      Carvin went on to reject some of the hypotheticals suggested by the other side in the Peace Cross case. "If they're putting up crosses at every courtroom, every DMV window, and all the parade of hypotheticals we've gotten on the other side, I can certainly understand why somebody would believe that they're trying to convert you to Christianity." he told the justices.
      Pensacola and Lehigh County both seem to have gone too far, under Carvin's reasoning and under the Court's fact-specific decision in the Peace Cross case. The Bayview Park cross in Pensacola serves as the stage for a religious service. The Framers of the First Amendment surely would have deemed it improper for the government to use public funds to build a church or an outdoor facility for the specific purpose of holding religious services.
      The city seals in these two municipalities also offend church-state separation by incorporating the preeminent symbol of Christian doctrine, just as much as a Christian cross atop city hall would give official imprimatur to one religion over all others. The non-believing Lehigh County plaintiffs complained of seeing the seal with its Christian cross, for example, when paying real estate tax bills or reporting for jury service, analogous to Carvin's hypothesis of a cross on every DMV window.
      The self-styled religious freedom advocates who defend these governmental displays of Christian symbols are no friends of the religious freedom embodied in the First Amendment. The Framers wanted nothing to do with government-established religion, but the self-styled originalists on the Supreme Court have lost sight of that original understanding of the Establishment Clause and may be leading lower courts to go farther afield from that original understanding as well.

Trump's Responsibility for El Paso Massacre

      President Trump's perfunctory denunciation of "racism, bigotry, and white supremacy" after a young white supremacist's massacre of Mexicans in El Paso would have been too little, too late even if it had been believably sincere. But Trump's frozen features as he read prepared remarks from a teleprompter [August 5] made clear to everyone, white supremacists included, that he was merely going through the motions.
      Trump has been guilty of racist conduct from his earliest days in the family business, as seen in the settled fair housing discrimination case in the early 1970s. Moreover, he has used racist rhetoric from his first days as presidential candidate and, after his election, as president to hold and rally his political base--as, for example, in calling for three black, natural-born U.S. citizen members of Congress to go back to where they came from.
      With his re-election campaign under way, Trump now can ill afford to alienate any part of his political base, including those who make no secret of the racist views that motivate their anti-immigrant outbursts. Trump regularly promotes these views at his political rallies, as documented in a compilation by USA Today. The newspaper found that in 64 rallies since 2017, Trump had referred to Central American and Mexican migrants at least 500 times in "incendiary terms," such as "invasion," "animal," and "killer."
      Admittedly, Trump's reckless encouragement of anti-immigrant sentiment would not qualify as legal incitement for Patrick Crusius's deadly shooting spree in predominantly Hispanic El Paso [August 3]. But the president bears a degree of moral responsibility for propagating and normalizing the kind of anti-immigrant views that turned the young community college student into a vigilante taking up arms against what the white supremacist fringe calls "white replacement."
      In fact, Crusius aped Trump's terminology in what is believed to be his online posting before the shooting that he was trying to stop "the Hispanic invasion of Texas." That description of present-day immigration from south of the border can come from no other source than Trump: in three decades of sharp debates about immigration policy in the United States, anti-immigration politicians and advocacy groups had never before couched the issues in terms such as those Trump has used.
      Trump sought to absolve himself of any responsibility, legal or moral, by blaming Crusius' crime on mental illness, the favored explanation from the gun lobby and their supporters for mass shootings. With no psychological training nor any evident ability in self-analysis, Trump is peculiarly unqualified to diagnose Crusius at a distance. Indeed, mental health experts quoted in news coverage appeared to agree that Crusius showed no symptoms of diagnosable mental illness.
      As for policies to address mass shootings, Trump used his prepared remarks to bat away the natural thought that perhaps guns are to blame. "Mental illness and hatred pull the trigger. Not the gun," he recited. Statistics cited by the CNBC journalist John Harwood on Twitter suggest otherwise. Of the 40 deadliest mass shootings in the United States since 1949, 26 have occurred in the 15 years since the Republican-controlled Congress allowed the assault weapons ban enacted in 1994 to expire in 2004: only two during the decade when the assault weapons ban was on the books.
      With public opinion coalescing around some kind of legislative response, Trump appeared at week's end to be accepting some form of stronger background checks for gun purchasers. Even if enacted, stronger background checks might do very little to prevent the next mass shooting. Apart from a higher minimum-age requirement, Crusius seemingly had nothing that he would have needed to list on an application that would have disqualified him from purchasing an otherwise legal weapon.
      Trump went so as to claim credit for the yet-unenacted proposals to keep guns away from or take guns away from people who pose dangers to themselves or others. "“I think we’re going to come up with something, something really good, beyond what’s done so far," he remarked, referring to background checks or so-called red flag laws.
      As for an assault weapons ban, however, Trump saw no prospects. " “I can tell you is there is no political appetite for that at this moment," he told the White House press pool in unscripted remarks on Wednesday [August 7].
      The week ended with Trump reportedly resentful of the less-than-glowing reviews he received for his visit to El Paso, highlighted by the stinging criticism of his mugging for the cameras as Melania held an infant orphaned by the killing of his two parents in the massacre. As a reminder, President Obama showed more presidential leadership seven years ago after the mass shooting at the Sandy Hook School in Connecticut. He was somber and respectful at a vigil two days later and, four years later, was shown in photographs to be tearing up as he talked about the episode.
      Racism and violence have been inherent in Trumpism from the start of his preposterous claim to make America great again. Note that the crime Trump claimed during his campaign he could commit with legal and political impunity was itself a gun crime: shooting someone on Fifth Avenue in New York City. One step to try to prevent the next mass shooting would be at the least a change in presidential rhetoric or, better, a change in the presidency itself. For that, it appears a country in grief must wait yet another year.

Time to Make the Supreme Court Great Again?

      President Trump and the Senate's Republican leader Mitch McConnell have both listed Trump's record-setting appointments of more than 140 federal judges as one of Trump's most important accomplishments in office. Many of those judges, like Trump's two Supreme Court justices, were confirmed by party-line votes in the face of strong opposition from Democrats and liberal advocacy groups, but the issue of judicial appointments went all but completely unmentioned in six hours of Democratic presidential debates last week [July 29, 30].
      The American Constitution Society (ACS), the liberal counterpart to the conservative Federalist Society, led a coalition of groups in urging CNN moderators beforehand to ask the assembled Democratic hopefuls about Supreme Court and judicial appointments, but to no avail. Media commentators noted critically afterward that the CNN moderators appeared to be selecting issues with an aim to highlighting disagreements among the Democrats instead of their shared disagreements with Trump and his policies.
      With the debates over and judicial appointments unmentioned, a truncated debate broke out on Twitter over the political value or risk for Democrats in making the Supreme Court and judicial appointments an issue in the 2020 campaign. Historically, a half-century of presidential campaigns shows that Republicans from Richard Nixon to Donald Trump have made the high court their winning issue time and again; Democrats have tried only weakly to use the issue to mobilize Democratic and independent voters.
      Democrats can and must do better in 2020, according to leading groups on the legal left. They want the eventual Democratic nominee to go beyond bland promises to appoint justices in the style of Brennan and Marshall and to go all in by backing structural reform, such as increasing the size of the Court, to neutralize the Republican justices' current majority.
      Aaron Belkin and Sean McElwee, director and polling director respectively of Take Back the Court, argued in an article written for Salon that Democrats must "recognize and reckon with the fact that the high court is a political institution that has been hijacked by the GOP to advance a partisan agenda on behalf of corporations and billionaires." Belkin and McElwee go on to say that it is "an imperative that  Democrats make the case to voters that democracy cannot be restored unless the court is reformed."
      Belkin and McElwee do not cite particulars, but the Court's end-of-term decision to close federal courts to legal challenges to the unpopular practice of partisan gerrymandering may leave it peculiarly vulnerable to attack for being uninterested in protecting voters' rights. Belkin and McElwee in fact promise a forthcoming report that will show Chief Justice John G. Roberts Jr. to vote just as conservatively as his conservative colleagues and his reputation for centrism "wholly at odds with his record."
      Among the two dozen Democrats currently in the running for the presidential nomination, 11 say they are open to expanding the size of the Court. One of those, Pete Buttigieg, has gone further by expressing interest in the proposal by two academics to expand the number of justices to 15. The balanced bench proposal by the two professors calls for five justices from each of the two major political parties and the other five chosen from sitting federal appellate judges by the other 10 by either unanimous or supermajority vote.
      Any discussion of changing the size of the Court will lead opponents to draw parallels to President Franklin D. Roosevelt's ill-fated "Court packing" proposal at the beginning of his third term in the White House. Present-day advocates of structural reform will be hard pressed to counteract the lesson drawn from that episode, but the distinction can be drawn by noting, for example, McConnell's role in blocking President Obama's nomination of the widely respected moderate appellate judge Merrick Garland in 2016.
      McConnell's role in keeping the vacancy open through the November election allowed Trump to use the issue to great effect, according to post-election exit polls. The Supreme Court was the most important issue for 21 percent of voters, according to the CNN poll, and more than half of those voters went for Trump.
      Democrats in 2020 need to make the Supreme Court their issue. They can do that by emphasizing the role that the Roberts Court has already played in weakening protections for workers and consumers and the role that an unreformed Court could play in undoing policies to address health care, climate change, and gun safety. Democrats should also promise to take judicial appointments out of the hands of the Koch Brothers-financed Federalist Society and promise to appoint fair-minded judges with no ideological agenda other than protecting liberty and justice for all.
      Senators from both parties are certain to accuse the other party of politicizing judicial appointments. History shows that Republicans have done that for 50 years, but Democrats not so much. Four of the Republican-appointed justices on the current Court were confirmed in party-line votes by historically narrow margins, with fewer than 60 votes each. All four of the Democratic-appointed justices came to the Court with reputations as judicial moderates and won confirmation by wide margins: Sotomayor and Kagan with more than 60 votes each and Ginsburg and Breyer with 96 and 87 votes respectively.
      It is time to make the Supreme Court great again. That could be and should be a winning message for Democrats in 2020, with or without a cap.