On Saturday, President Joe Biden and First Lady Dr. Jill Biden went to Florida, where he surveyed the damage, praised the Federal Emergency Management Agency (FEMA), and told the people of Florida: “Your nation has your back, and we’ll be with you until the job is done.” White House press secretary Karine Jean-Pierre reiterated, “It doesn’t matter if it’s a red state or a blue state, the president’s going to show up and be there for the community.” Florida governor Ron DeSantis declined to meet with the president, apparently fearing a backlash from anti-Biden primary voters, but Republican senator and former Florida governor Rick Scott did meet with Biden and praised his rapid response to the hurricane. Biden’s promise to the Republican-dominated state of Florida even in the face of DeSantis’s pettiness was a striking contrast to former president Trump’s withholding of federal aid from Malden and Pine City, Washington, almost exactly three years ago, when a September 2020 wildfire destroyed 15,000 acres and 85% of the buildings, including 65 homes. Trump held up Washington governor Jay Inslee’s request for a disaster declaration, which frees up federal funds, for more than four months out of spite at the Democratic governor. It was Biden who finally approved the declaration days after taking office. According to Emma Epperly and Orion Donovan Smith of the Spokane, Washington, Spokesman-Review, when he heard the declaration was finally in place, Malden Mayor Dan Harwood teared up in relief. “Our citizens are going to be able to go forward now,” he said. “We’ve been waiting for this day for a long time. It’s a very, very good day.” Yesterday the three most senior civilian officials in the Department of Defense responsible for their branches—Secretary of the Navy Carlos Del Toro, Secretary of the Air Force Frank Kendall, and Secretary of the Army Christine Wormuth—wrote in the Washington Post that Senator Tommy Tuberville (R-AL, though it turns out he lives in Florida) is actively eroding “the foundation of America’s…military advantage” with his blanket hold on military promotions. Tuberville says he launched the hold in protest of the military’s policy of ensuring that military personnel can obtain reproductive health care, including abortions, but as the authors of the Post op-ed say, his policy “is putting our national security at risk.” More than 300 of our critical posts have acting officials in place, and three of our five military branches—the Army, Navy, and Marine Corps—have no Senate-confirmed service chief. In defense of his position, Tuberville has begun to attack the military leaders whose promotions he is opposing, much as former Fox News Channel personality Tucker Carlson lashed out repeatedly at Joint Chiefs of Staff chair Mark Milley for his support for diversity and inclusion in the military. In their op-ed, the secretaries warned of the danger of politicizing our military and noted that the damage Tuberville is inflicting on the service will echo for years as today’s colonels and captains gather that their service is not valued by members of Congress. Tonight, Secretary of the Navy Del Toro, who was born in Cuba, said on CNN: “I would have never imagined that…one of our own senators would actually be aiding and abetting communist and other autocratic regimes around the world. This is having a real negative impact and will continue to have a real negative impact on our combat readiness. That’s what the American people truly need to understand.” Today marked the start of Texas attorney general Ken Paxton’s impeachment trial in the Texas Senate, which has taken on a meaning far larger than the fate of a single state official and become a fight over the future of the Republican Party. Paxton is a hard-right Republican who has based his political career on his identity as a Christian conservative advancing evangelicals’ culture wars. He has pushed Texas rightward since he took office in 2015, first challenging President Barack Obama’s Affordable Care Act and immigration orders, then championing Trump, then celebrating his wins against “woke Biden administration rules” and defending states’ rights. Paxton supported Trump’s efforts to overturn the results of the 2020 election, filing a lawsuit drafted by the Trump campaign to challenge other states’ elections and then, when the Supreme Court declined to hear that case, criticizing both the court and other states when he spoke at the January 6 rally at the Ellipse that preceded the attack on the U.S. Capitol. But Paxton has been embroiled in scandals since being indicted for securities fraud just months after he took office as the state’s top law enforcement officer. That trial has yet to take place, but now he is embroiled in other scandals that have led the Republican-dominated Texas House of Representatives to pass 20 articles of impeachment against him by a vote of 121 to 23. The House started impeachment proceedings after Paxton asked for $3.3 million in state funds to pay a settlement to four whistleblowers who accused him of abuse of office and bribery in 2020 and who were fired within a month. But the impeachment charges center around his ties to his friend and donor Nate Paul. Paxton is accused of helping Paul in exchange both for gifts and for hiring Paxton’s mistress. The Texas Senate will conduct the impeachment trial. There are 31 members of the Senate, but one of them is Paxton’s wife, whom the Senate banned from voting after she refused to recuse herself. So to convict him, it will take 21 of the 30 state senators who can vote (his wife’s presence makes the conviction threshold 21 rather than 20). If all 12 Democrats in the Senate vote to convict, it will require 9 of the 18 voting Republicans to convict him. Robert Downen and Zach Despart of the Texas Tribune yesterday reported that the impeachment trial is expected to focus on Paxton’s infidelity to his wife. He told his staff about the extramarital affair at the center of his relationship with Nate Paul in 2018, when he promised it was over and he was recommitting to his marriage. But, in fact, he didn’t. To hide the affair from his wife and his deeply religious constituents, impeachment managers say, Paxton worked with Paul to get a job for his girlfriend and hide the relationship, and then used his office to help Paul weather lawsuits and bankruptcy. The Republican Party in Texas is split over Paxton much as the country is split over former president Donald Trump. Some say that Paxton’s extraordinary behavior warrants impeachment and trial and that, after all, a majority of Republicans in the Texas House were so concerned they impeached him. But others insist that he is, as he claims, a victim of political persecution. They maintain that a flawed man can do God’s will, and they support Paxton no matter what his failings out of support for his political crusades on their behalf. J. David Goodman reported yesterday in the New York Times that right-wing donors have embarked on an expensive, high-pressure campaign to convince Republicans in the Texas Senate to vote against conviction, threatening to primary anyone who votes against Paxton. Still, his approval rating among Republicans has dropped by 19 percentage points since April, while his disapproval rate has more than tripled since last December. In other court news, a Florida judge this weekend struck down a state congressional map pushed through the legislature by Florida governor Ron DeSantis, saying it violates the state constitution by diluting Black voting power. The state will automatically appeal. Today, three Republican-appointed federal judges struck down Alabama’s new congressional map after the state legislature ignored a court order to redraw the state map to include a second majority Black district since the state map put in place after the 2020 census likely violated the 1965 Voting Rights Act. The judges wrote that they were “disturbed” by the state legislature’s refusal to correct its illegal maps. “We are not aware of any other case in which a state legislature—faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district—responded with a plan that the state concedes does not provide that district.” The court will appoint a special master to draw Alabama’s congressional map, but Alabama attorney general Steve Marshall, a Republican, has already appealed the decision to the U.S. Supreme Court. In Wisconsin, where Republicans have called for impeaching Supreme Court justice Janet Protasiewicz for violating ethics codes by calling the state’s congressional maps “unfair” and “rigged,” a state judiciary disciplinary panel has dismissed those complaints. Republicans drew the congressional map in Wisconsin so fully in favor of their party that in 2018, Democratic candidates for the state assembly won 54% of the popular vote but Republicans “won” 63 of the assembly’s 99 seats, only three seats short of a supermajority that would enable them to override a veto by the Democratic governor. And finally, U.S. district judge Tim Kelly sentenced former Proud Boys leader Enrique Tarrio today to 22 years in prison. This is the longest sentence handed down for any of the January 6 rioters, though far shorter than the 33 years prosecutors had requested. Kelly also handed down sentences significantly below the guidelines for the crimes Proud Boys leaders committed: Joseph Biggs was sentenced to 17 years; Zachary Rehl, 15 years; and Ethan Nordean, 18 years. Dominic Pezzola, who was found not guilty of seditious conspiracy but guilty of other crimes, received a 10-year sentence. Tarrio is the last of the gang to be sentenced and was not present at the January 6 attack, underscoring the wide reach of a conspiracy conviction. — Notes: https://www.cnn.com/2023/02/10/politics/ken-paxton-texas-settlement/index.html https://www.cnn.com/2023/09/04/politics/ken-paxton-impeachment-texas-attorney-general/index.html https://www.texastribune.org/2023/09/04/ken-paxton-affair-impeachment-trial-marriage/ https://www.nytimes.com/2023/09/04/us/ken-paxton-impeachment-conservative-lobbying.html https://www.spokesman.com/stories/2021/feb/04/biden-approves-disaster-assistance-for-washington-/ https://www.spokesman.com/stories/2021/jan/16/trump-is-blocking-aid-to-malden-pine-city-fire-vic/ https://www.politico.com/news/2023/09/02/biden-desantis-hurricane-00113833 Jamie Joseph, “Tuberville to maintain hold on military nominees…” Fox News, August 25, 2023. https://twitter.com/Acyn/status/1699192862049526189 https://www.emptywheel.net/2023/09/04/the-finding-out-part-proud-boys-face-sentencing/ |
Wednesday, September 6, 2023
September 5, 2023 HEATHER COX RICHARDSON
Tuesday, February 15, 2022
RSN: FOCUS: Dan Rather and Elliot Kirschner | Precedent Be Damned
14 February 22
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To be sure, the Court is on the political radar. But a lot of the coverage and awareness focuses on the impact of individual rulings (or expected rulings) that upend the current status of the law on such issues as voting rights, affirmative action, abortion, and the ability of the federal government to regulate areas like the environment. Another line of coverage deals with the justices themselves, and trying to tease apart their whims and states of mind to handicap how they might rule.
All of this is important. But these are but individual tiles in a much larger mosaic - a mosaic I hope the national press will spend more time piecing together. What is required is to step back and see the big picture. And what one sees is deeply disturbing.
Instead of reasoned argumentation we see snap judgements. Instead of deliberation we see grandstanding. Instead of humility we see a cocky disregard for precedent. The legitimacy of the Supreme Court is wavering - some might argue it has already been debased. And with it, the larger legal system quakes with uncertainty.
The latest outrage came this past week when the Court stayed a unanimous ruling by a three-judge district court panel which said that Alabama’s new congressional map violated the Voting Rights Act by denying fair representation for Black Alabamians. The immediate effect of this is that Black residents, who make up 27 percent of the state’s population, will only be the majority in one of seven districts in the 2022 elections (and likely thereafter). More generally, it means the Voting Rights Act has been dealt another grave blow.
It should be noted that two of the three judges who ruled in the matter at the district court had been appointed by President Trump - so not exactly bleeding heart liberals. And their ruling striking down the Alabama map was not considered particularly controversial because, as many legal analysts noted, what the state did was as clear a violation of the law and of precedent as you are likely to find. Five justices on the highest court didn’t care.
As someone who has covered Alabama and the plight of civil rights there since the 1960s, I can tell you that the long history of repression and discrimination in a state whose nickname is the “Heart of Dixie” is a secret to no one. And while it is tempting to see these kinds of cases in terms of their sweeping import, we cannot forget the individuals on the ground in what was known as the Black Belt are being denied fair representation of their needs in Congress. This is exactly what the Voting Rights Act of 1965 was supposed to protect against.
For all of those who would argue that the protections of that landmark legislation are no longer needed, we can find ample evidence to the contrary in the rising divisive racial animus plaguing our country. Furthermore, the ongoing fight over access to the polls, and for representation in Congress, shows that the battle for the ballot box remains far from settled.
It is tempting to contextualize the Supreme Court’s ruling as nothing more than a political calculation. But it is hard to tell, because the Court’s majority didn’t even issue a formal decision. This was due once again to the justices’ use of the so-called “shadow docket.” Rather than the methods by which Supreme Court cases, especially ones that overturn longterm precedent, are supposed to be decided - briefings, oral arguments, deliberations - this was an emergency measure, a stay of a lower court’s ruling, that essentially eviscerated one of the seminal pieces of American legislation.
This wasn’t the first time this Court has used the shadow docket to essentially upend American jurisprudence. In her fiery dissent, Justice Elena Kagan let her fellow justices know what she thought of this practice:
Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs (of the Voting Rights Act) have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change. That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.
As far as court writings go, this is as blistering and dismissive as you are likely to see.
I leave it to others more versed in the law to state the full implications and contextualizations of the Alabama ruling. Writing in the New York Times, the Pulitzer Prize-winning journalist Linda Greenhouse, who has covered the Court longer and better than almost anyone I can think of, stated the implications bluntly in a piece entitled “The Supreme Court Has Crossed the Rubicon.” Her take? “What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point.”
And here is where the full picture starts to come into view. This was always the hope of Mitch McConnell and the Federalist Society, which fought to fill the ranks of the U.S. Judiciary with hard-right true believers. They understood that even if they lost the other levers of federal power, Congress and the presidency, they could still shape the law of the land by owning the courts. In so doing, as we are seeing, their judges (I hesitate to call them conservative, because there is nothing conservative in their approach) could nullify the products of the democratic process in ways that promote their interests.
In light of the political valence which hangs heavily over our current age, it is possible to infer that what happened in the Alabama case was “Republican justices” wanting to make sure the Democrats didn’t get another seat in the House of Representatives. Whether that is fair or not to the justices in the majority we have no way of knowing. And that is exactly the problem. We don’t know, because there was no argumentation and no attempt to tether their decision to the law. So suspicion hangs over the entire enterprise.
There’s an old saying that goes along the lines of “Supreme Court justices read the newspapers too.” The idea being that public opinion matters in what the law will become. But if that is true of this Court it might be better stated as Supreme Court justices watch Fox News too. For what we are witnessing is not the law as much as it is transactional rhetoric without any pretense other than power.
In the interest of fairness, it has always been true that judges of all political persuasions have seen the law through their own biases. Liberal judges tend to rule one way and right-wing judges another. But not always in ways that are predictable. And in the past both liberal and conservative justices at least usually tried to cloak their decisions in the law.
This is fundamentally different. And evidence of that difference can be found in Chief Justice John Roberts. As many noted, including Greenhouse in her column above, the Court majority’s attack on precedent was so extreme that even Roberts, who has fought to weaken if not dismantle the Voting Rights Act for decades, felt it was a bridge too far and sided with the liberal justices.
I suspect he sees what we can all see, that an institution that derives its strength from its legitimacy is in danger of becoming a joke. Instead of legal minds wrestling with difficult issues, we see two-bit politicians dressing up in robes. That more than a half century of fundamental legal principle and landmark legislation can be tossed like it was a half-eaten turkey sandwich is not only a disgrace, it is dangerous.
In a world of nanosecond news cycles it might be difficult to gather people’s attention for a story like the direction of the Court. But many in the legal press, through articles and podcasts, are doing just that. They are ringing the alarm bells. Will people listen? Democratic voters in particular have not tended to rally around the Court as inspiration for marshaling their political power. But maybe that will change as the full impact of this current Court takes hold. (I think this topic would make for a fascinating documentary, if anyone is interested.)
Over the course of American history, the Court has found itself, more often that not, at odds with the popular direction of society. If the schisms grow between what the American majority wants and the Court majority delivers, the legitimacy of the institution will be further challenged. Just as we are seeing a consensus among Democrats for getting rid of the filibuster in the Senate because it blocks legislative action, so too might we see a consensus gather for reforming or even expanding the Court.
This is the game of chicken that the majority of justices is playing. Whether they are aware of it or not, is hard to predict. It seems the Chief Justice may understand. It is the job of the press to explain both the actions and the stakes. And it is the responsibility of American voters to decide whether this is how they want their nation’s business to be conducted.
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