The Real Threat of Trump and Barr

The Mueller Report is a cornucopia of stunning revelations of corruption and abuse of power by Donald Trump, his Administration, and his campaign.  I write to discuss one important revelation that has been highlighted, but widely misunderstood:  President Trump repeatedly attempted to obstruct justice – indeed, ordered the obstruction of justice – and failed only because his staff refused to carry out his commands.  Jeff Sessions refused to “unrecuse” from the Russia investigation; Reince Priebus retrieved Sessions’ proffered resignation letter so that Trump could not use it as a “shock collar” to tame the Justice Department; Don McGahn refused to carry out Trump’s order to fire Special Counsel Mueller; Rick Dearborn refused to communicate Trump’s order that Sessions limit the Special Counsel’s jurisdiction to future elections; KT McFarland did not follow Trump’s order to draft an internal cover-up memo; and on and on.  One moral that might be drawn from this story is its happy ending:  the President’s attempts to obstruct justice were thwarted at every turn by conscientious public servants.  One commentator on NPR even went so far as to declare triumphantly that these episodes show that the system works.  This is wrong.  The system did not stop the President from obstructing justice; specific individuals did.

As many have remarked, it is chilling to know that it is a pattern and practice of this President to obstruct justice.  But what makes the realization downright frightening is the fact that not one of those conscientious public servants still serves in the Trump Administration.  Indeed, each and every one of them fell out of favor with the President precisely because they would not work his nefarious will.   Can we rely on the public servants currently serving in the Trump Administration to stand up to and check the President?

Enter William Barr.

The new Attorney General has been widely, and rightly, criticized for press conference in advance of releasing the Mueller Report.  Even on Fox News, Sheppard Smith and Chris Wallace characterized the Attorney General’s performance as indefensible and an exercise in deception.  It was all of that and worse.  It is now clear that we cannot rely on the Attorney General to restrain the President.  Rather, Attorney General Barr views it as his job to actively facilitate the President’s schemes.

In fact, this has been clear all along.  Barr is a longstanding proponent of the unitary executive theory of presidential power.  He advanced that theory as the head of the Office of Legal Counsel in the late 1980s and in his first stint as Attorney General in the 1990s.  He specifically applied that theory to the Mueller investigation in a now infamous memo he wrote last June as a private citizen (a memo that is widely regarded as the very reason President Trump selected him to replace Jeff Sessions as Attorney General).  According to Barr, “[w]hile the President has subordinates – the Attorney General and DOJ lawyers – who exercise p[ower] on his behalf, they are merely his hand – the discretion they exercise is the President’s discretion ….”  On Barr’s view, those public servants I have described as conscientious are more accurately regarded as insubordinate.  To extend Barr’s corporeal metaphor, they are the body in revolt against itself, a kind of “cancer on the presidency.”

I testified at Attorney General Barr’s confirmation hearing.  I opposed his nomination because I was familiar with his views and presidential power and, so, could see the dangers they posed for the Mueller investigation and, more broadly, for the rule of law.  Still, I am shocked at how brazenly William Barr is willing to ignore facts and law in order to promote Donald Trump.  Joseph McCarthy had Roy Cohn, Richard Nixon had John Mitchell, now Donald Trump has his man.

*Institutional affiliation is listed for identification purposes only.

Senate Rules Change Leads to Four Judges Confirmed in Two Days

Last week, the Senate majority passed yet another change in the rules governing the judicial nominations process. The Senate shortened the debate time to just two hours for district court nominees and certain other nominations. And this week we had a glimpse of how damaging this rules change will be, as the Senate voted to confirm two district court nominees in less than three hours on Wednesday.

Over the course of two days, the Senate confirmed Daniel Domenico (D. Colo.), Patrick Wyrick (W.D. Okla.), Holly Brady (N.D. Ind.), and David Morales (S.D. Tex.).

Visit the On the Bench page for details on confirmations, pending nominees, and vacancies.

McConnell is fast-tracking President Trump’s judicial nominees

Senate Majority Leader Mitch McConnell sought the rule change to speed the confirmation of President Trump’s picks for lifetime judgeships. This, despite the fact that the Senate has already confirmed a record number of circuit court judges.

District courts play a huge role in adjudicating rights and freedoms for millions of people and have a direct effect on their daily lives. Rushing these nominees to a final confirmation vote is profoundly irresponsible. Senators need time to appropriately evaluate every judicial nominee and the 30 hours of debate time was part of that crucial vetting process.

Several of the nominees awaiting confirmation votes have extreme records: opposing reproductive freedom, attacking LGBTQ rights, undermining voting rights, and enabling torture.

As ACS President Caroline Fredrickson said last week in a statement about the rules change:

“The far right is engaged in a concerted campaign to use the courts to enact policies they have failed to pass legislatively. And finding new ways to jam radical nominees onto the bench is seemingly the main tool in their toolbox. The result? A judiciary that bears little resemblance to the diverse fabric of our country or the American ideological mainstream.”

This change to the amount of debate time the Senate has for lifetime judgeships is a power grab that is further undermining rules and norms. All done in the service of enabling President Trump and the Senate majority’s quest to fill the federal courts with judges who hold extremely conservative views.

Related Resources

Learn more about how the federal judiciary is changing under President Trump:

Is William Barr Serving the Public Interest or the President’s?

During Attorney General William Barr’s confirmation process, ACS President Caroline Fredrickson published an op-ed in The New York Times posing the question: Will William Barr Be Trump’s Roy Cohn?

Unfortunately, the attorney general’s recent actions and yesterday’s statements underscore the very concerns Fredrickson flagged back in December. In an appearance on Capitol Hill yesterday, Barr said that he believed the FBI “spied” on the Trump presidential campaign and that he was launching an investigation into the matter.

In an interview with Politico, House Intelligence Committee Chairman Adam Schiff, D-Calif., shared his concern that Barr is doing Trump’s bidding:

“It’s very concerning when the top law enforcement officer in the country uses incendiary language like that. That’s the kind of thing you hear the president say at his rallies, when he’s advocating a deep-state coup attempt. It ought to concern all of us.”

Roy Cohn was President Trump’s personal lawyer and fixer throughout the 1970s, having previously served as a top aide to Sen. Joseph McCarthy. He had a reputation for pushing legal limits to protect his clients.

For his part, Barr has a reputation for holding an expansive view of presidential power, especially regarding legal investigations involving the president.

As Fredrickson wrote: “These are perilous times. Not since Watergate have we seen a presidency so mired in accusations of unethical and illegal behavior. And not since Watergate have we seen a president so contemptuous of the rule of law.”

If there was one thing the president needed to enable him to navigate the choppy legal waters in which he currently flounders, it was an attorney general willing to take steps to protect him. Sadly, it appears he may have found his man in William Barr.

In Defense of Court Packing

Aaron Belkin will also be speaking at the 2019 ACS National Convention in June. Learn more here.

After presidential candidate Pete Buttigieg signaled an openness to court packing last month, a handful of critics in the progressive community urged him and other 2020 contenders to denounce the strategy, and to embrace other judicial reform options. The growing awareness that the Supreme Court must be reformed is an important first step, but critics of court packing are succeeding, at least for now, in convincing 2020 candidates to disavow packing in favor of alternatives that are unlikely to work.

The project that I founded, Pack the Courts, is busy producing research reports that will explain why court packing is the best judicial reform option and why alternatives cannot be effectively implemented. While awaiting that research, however, I thought it might be helpful to comment on a handful of beliefs that appear to sustain most of the skepticism about court packing.

(1) Critics fear that court packing will provoke Republicans to retaliate in kind. Buttigieg says that provoking the GOP is the “last thing that we’d want to do” and Neil Siegel argues that “proportionality is important to prevent conflict escalation and to avoid fueling a race to the bottom.” These concerns strike me as off-point, because Republicans will not hesitate to pack the Court if they need to do so in order to control it, regardless of what Democrats do. If Democrats reform the Court with a facially neutral option such as term limits, the conservative media will howl for years about a stolen Court, and then Republicans will pack the Court at their first opportunity. Even if a liberal majority is obtained through normal rotation, a nearly impossible scenario for the indefinite future, Republicans will pack the Court as soon as they can.

(2) Court-packing critics tend to misdiagnose our current predicament in terms of polarization rather than asymmetric polarization, and fail to appreciate the extent to which the GOP has become radicalized. GOP radicalization is perhaps the greatest threat to American democracy, and should be understood in terms of four dimensions: (1) a systematic commitment to distortion and fabrication; (2) prioritizing narrow partisan concerns over national interests and even national security to an extreme degree; (3) underhanded tactics such as voter suppression, judicial theft, and maximal obstruction; and (4) a deep commitment to scapegoating. My interpretation of the evidence is that the GOP is no longer committed to democratic governance.

(3) Because they seem to underestimate GOP radicalism, court-packing critics spend considerable time and effort crafting neutral reform options that, they hope, could withstand Republican sabotage. The neutrality of reform options is, of course, optically critical and consistent with the principles of good governance. There is no such thing, however, as a system that cannot be gamed, and GOP radicalism is so extreme that the party will try, and probably will succeed, at gaming, circumventing, and subverting even the most benign reform options. (One of our forthcoming research reports will address how the “5-5-5” option can be gamed). Critics want to save the Court and to “preserve its legitimacy as an institution above politics.” But the Court cannot be saved unless both parties are committed to democracy.

(4) Reform options—aside from court packing—that scholars have proposed have almost no chance of working. Consider term limits, an option that looks good on paper, but that probably cannot be implemented in practice. Between the passage of a law requiring term limits and the point at which they would start to have a moderating impact on the Court, there would be ample opportunity for the five conservative justices to enjoin and then strike down the statute. Conservatives spent more than a generation carefully plotting the capture of the judiciary, and there is almost no chance that they would relinquish power by upholding a term limit bill. Similar problems plague other reform alternatives.

(5) In light of the previous four points, court packing may be the least risky judicial reform option, because, perhaps more than any other strategy, it could prevent Republicans from dominating elections for awhile, possibly quite awhile, which could de-radicalize the party somewhat. If Democrats return to power in 2020, eliminate the filibuster, provide statehood to Washington, DC and Puerto Rico, and pass legislation to restore democracy (for example by guaranteeing an automatic right to vote), the Brennan Center estimates that 50 million voters could be added to the rolls. Under such circumstances, it could be difficult for Republicans to pack the courts in retaliation for awhile, as they would need to regain control of the White House as well as both chambers of Congress. Even Epps and Sitaraman, both of whom are skeptical of court packing, acknowledge that “we can imagine conditions under which court-packing could lead to a stable equilibrium that does not invite an ever escalating cycle of political retaliation.”

(6) Unless Democrats sweep back into power, eliminate the filibuster, pack the Court, and enact the democracy agenda that Brennan estimates could add 50 million voters to the rolls, electoral politics probably cannot save democracy. Absent that narrow path, Democrats can still win elections from time to time, but Republicans will leverage Senate obstructionism and radical jurisprudence to prevent them from governing for the foreseeable future. When only one party gets to govern, when Black and Brown people cannot vote, when corporations and wealthy donors are able to purchase policy, and when gerrymandering allows minority parties to control the levers of power, that’s not democracy.

(7) Many supporters of court packing dislike that term, and urge its adherents to use different language such as “expanding,” “balancing,” “un-stealing,” or “un-packing.” Court packing is the most honest term however, and the voters deserve honesty. It is also the clearest term, in that people know what it means. Judicial reform advocates should confront the baggage of 1937 head-on by reminding voters that FDR’s threat to pack the Court arguably saved the New Deal. Judicial reform advocates shouldn’t try to circumvent that baggage via framing that will seem disingenuous because it is. When opponents complain about naked partisan power grabs, advocates should explain that the Court and the GOP have broken democracy, and the only way to fix it requires packing.

(8) The skeptics are correct in positing that a conversation about court packing could energize the conservative base and scare away moderates.  Several qualifications, however, deserve consideration: (1) Experts have not yet made the case to the public that court packing is necessary to save democracy; (2) Experts could do more to educate the public about how the Court has compromised democracy, for example by gutting the Voting Rights Act; (3) As the Court continues its long-term effort to undermine democracy, public opinion may shift, especially given concerns about Justice Kavanaugh; (4) The notion that progressives cheat has already been baked into conservative turnout numbers thanks to a generation of rhetoric about voter fraud; (5) If the public comes to understand that Congress would eliminate the filibuster, pack the Court, and enact the democracy agenda, this could motivate non-voters who have become cynical about politics to turn out, because they will see that bold change is possible; (6) Concerns about energizing conservative voters and scaring away moderates can always be invoked to stifle progressive discourse,  but that’s not a reason to be quiet, especially during national emergencies.

Aaron Belkin is director of Pack the Courts and can be reached at belkin@12021project.org.

Women Need Earning Equality Now: A Progressive Judiciary is One Key to Pay Parity

2019 is the year of the woman: Americans are now at least starting to listen to women when we say we have been harassed or assaulted; more women than ever are running for the highest office in the land, and there are more women in Congress than there have ever been. While we’ve come a long way, baby: We have a way to go. One fundamental truth that hits us in the pocketbook every day is that women still do not make what men make at work, even when we have equal education and experience.

Women today still earn on average roughly 80 cents for every dollar paid to men. American women must work an added four months on average to earn their male counterparts’ salary, a pay gap we recognize annually on Women’s Equal Pay Day, this year on April 2, 2019. The pay gap is worse for African-American and Latina women, with African-American women making roughly only 61 cents for every dollar made on average by white men and Latinas on average earning about 53 cents for every dollar made by white men.

Women in the legal profession are making some progress. Women outnumber men in law school. The wage gap persists for women lawyers in part because the super-high earners are mostly men – those at the very top of the pay scale (think partners in big law firms). And generally, women are not paid as much as men even when women get the same education and work the same hours as men. Requiring pay transparency is a good first step for equality. Efforts to diversify clerkships, which Justice Sonia Sotomayor endorsed at last year’s ACS convention, will also help propel women and people of color to the top of the legal profession.

The good news is that the gap between what women and men earn is shrinking. But here’s the bad news: It’s shrinking because most men’s wages have been flat. Not all men, of course. The richest 1 percent of Americans’ wages are skyrocketing. So, we should focus not only on the closing the pay gap but also on stemming rising inequality. Women should be paid what men are paid for doing the same work, and wages should rise for both men and women.

As I write about in my upcoming book “The Democracy Fix,” conservatives have been ruthless in gaining power on a local, state, and national level in elected government and in the judiciary. And they have used that power at the behest of business interests to make it harder for working women to get paid the wages they deserve. The long-term solution to earning pay parity, as for so many other issues, is for progressives to be as successful as the Right has been by winning elections and selecting judges who hold a progressive vision of the Constitution, which will uplift all workers.

Progressive elected officials can enact popular legislation like a higher minimum wage, paid sick days, and family leave, which have a disproportionate impact on women and will lead to fair wages for all. But it all begins with working to make sure we control the levers of power in statehouses, in Congress, and in the White House – and especially in the judiciary.

Women have come a long way since my grandmother came to this country as an immigrant scullery maid, but as I wrote in “Under the Bus,” women in the lowest-earning jobs in this country have been left out of much of that progress. The women who take care of our children and our elders, the maids, and the waitresses are not paid what they deserve.

On this Equal Pay Day, we need to work to change policies to reflect our values. People who work hard all day should be able to live on their earnings in a country with our resources. And women’s work should be valued, whether or not it is work that men do.