Judge rules transgender troop ban likely unconstitutional, enjoins enforcement

by Richard Eisenberg, who served as special counsel to the General Counsel of the Army and the Air Force during the Obama administration, and Alex Wagner, who served as chief of staff to the 22nd Secretary of the Army and is a fellow at the Truman National Security Project.

Last Monday, a federal district judge blocked enforcement of critical parts of President Trump’s directives banning and purging transgender individuals from serving in the U.S. military. Judge Kollar-Kotelly’s decision in Jane Doe 1, et. al. v. Trump, a case brought in the District of Columbia, is one of at least three pending cases involving challenges to Trump’s order, and highlighted the challenges the government will have in defending Trump’s policy decision and chosen method of implementation. (Another suit, Stone v. Trump, is scheduled for oral argument on November 9 in the District of Maryland.  And a third, Stockman v. Trump, is pending in the Central District of California.)

Trump’s order, initially expressed in late July via a series of tweets declaring that the United States would not “accept or allow transgender individuals to serve in any capacity in the U.S. Military,” was formalized for implementation a month later in an official White House policy memorandum to the Secretaries of Defense and Homeland Security. As we have written, this memorandum represented a confused and misguided effort to reverse the actions taken by Secretary of Defense Ash Carter in 2016, when he announced that he was “eliminating policies that can result in transgender members being treated differently from their peers based solely upon their gender identity, rather than upon their ability to serve.” Trump’s August 25, 2017 memorandum specifically directs the military services to (1) “return to” an earlier policy framework in which transgender service members could be discharged based on their gender identity; (2) indefinitely delay the commencement of a previously-announced policy allowing otherwise qualified openly transgender individuals from entering the military; and (3) refuse to provide or cover payments for “sex reassignment surgery.” In her decision, Judge Kollar-Kotelly preliminary enjoined the government from enforcing the first two of these directives, emphasizing both the irreparable harm to the plaintiffs and their likelihood of success on the merits. (With regard to the third directive, Judge Kollar-Kotelly dismissed the plaintiffs’ claim without prejudice on the grounds that no plaintiff had pled sufficient “injury-in-fact” to qualify for standing to challenge that directive.)

Doe v. Trump was brought by the LGBTQ Legal Advocates and Defenders (GLAD) and the National Center for Lesbian Rights on behalf of six transgender service members and two transgender individuals seeking to enter the military in the near future. In granting (in relevant part) their motion for preliminary judgment, Judge Kollar-Kotelly found that Trump’s directives likely violated the plaintiffs’ constitutional rights to equal protection of the law. This outcome was not surprising, given recent trends in equal protection jurisprudence along with the absence of a factual basis for the announced policy changes. Yet, several features of Judge Kollar-Kotelly’s well-reasoned opinion are noteworthy.  

As an initial matter, the plaintiffs in Doe sought a preliminary injunction to prevent implementation of Trump’s directive, and as a result were required to demonstrate that: 1) they were likely to succeed on the merits of their claims; 2) they would suffer irreparable injury in the absence of an injunction; and 3) the balance of the equities and the public interest favor granting injunctive relief.

With respect to the critical element of the plaintiffs’ likelihood of success on the merits, Judge Kollar-Kotelly examined to the constitutionality of the directives based on equal protection jurisprudence. When the government classifies a certain group of individuals differently than others (in this case, transgender service members and individuals who might seek to serve in the military), courts generally review with a deferential standard, known as rational basis.  However, when the policy impacts certain groups that have been subject to a history of discrimination, a more searching standard-of-review is warranted. In Doe, Judge Kollar-Kotelly applied “intermediate scrutiny,” which courts typically use in cases where the classification at issue is based on sex or gender. First, she held that “discrimination on the basis of someone’s transgender identity is a quasi-suspect form of classification that triggers heightened scrutiny,” joining a chorus of federal district judges who have reached similar conclusions in employment discrimination cases involving transgender plaintiffs over the last twenty years. Second, she held that any classification based on transgender status is “a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny.” She explained that “[b]y excluding an entire category of people from military service on [transgender identity] alone, [Trump’s directives] punish individuals for failing to adhere to gender stereotypes.” The concept that discrimination based on gender stereotyping—that is, punishing a woman for not adhering to social constructions of what a woman should act like or look like—derives from the seminal case of Price Waterhouse v. Hopkins.

Applying intermediate scrutiny to Trump’s directives, Judge Kollar-Kotelly examined whether the exclusion of transgender individuals from military service was “substantially related” to the “important or at least legitimate” government objectives of “maximizing military effectiveness, lethality and unit cohesion” and responding to budget pressures. 

In finding that the government was unlikely to justify its defense that the exclusion of transgender individuals was substantially related to the stated government objectives, Judge Kollar-Kotelly cited the “highly unusual circumstance” in which “all of the reasons proffered by the President for excluding transgender individuals from the military . . . were not only unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself.” Describing the deliberative and detailed process that military engaged in to arrive at 2016 policies, in which the military departments and the Secretary of Defense all agreed that the needs of the military were best served by allowing transgender individuals to openly serve, Judge Kollar-Kotelly concluded that with respect to substance of Trump’s directive, “the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself.” (Emphasis added). 

Judge Kollar-Kotelly also cited the administration’s process in rolling out the policy directives as evidence of its unconstitutionality. She wrote that, in stark contrast to the studied approach taken by the military toward development of the 2016 policy, “the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity.”  The opinion itself event pasted images of the Trump’s rhetorically-challenged tweets on the subject, concluding that such circumstances “provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military effectiveness.” As a result, Kollar-Kotelly was unwilling to give the usual degree of deference afforded to executive branch judgment on matters touching on military affairs where circumstances not only evinced but actually belied a lack of any serious military basis for implementation of the discriminatory classification at issue. 

Given Judge Kollar-Kotelly’s strong repudiation of the government’s arguments in this opinion, and the potential precedential value of her reasoning for other plaintiffs challenging this and other administration policies, the government will very likely appeal the decision to the U.S Court of Appeals for the D.C. Circuit. The success of that appeal, however, appears to be an upward climb.

 

The First Ever National Lawyer Convening was a Success!

by Kate Sigafoos, Assistant Director of Lawyer Chapters, ACS 

From October 19 to October 21, progressive lawyers, judges and legal advocates from around the country gathered in beautiful Milwaukee, Wis. for the first-ever ACS National Lawyer Chapter Convening. There were more than 120 people in attendance with representatives from 16 states and the District of Columbia, including 19 ACS Lawyer Chapters, and what a time we had together!

The event started with a gathering at the grand Milwaukee City Hall Rotunda with welcome speeches from Milwaukee Mayor Tom Barrett and ACS President Caroline Fredrickson. The energy of the attendees’ enthusiasm was palpable as they networked and connected with ACS members from similar legal practice areas.

The next day of the convening was full of panel discussions and presentations, including lunch with keynote speaker Illinois. Attorney General Lisa Madigan who spoke on the role of state attorneys general in protecting our fundamental liberties. Panelists spoke on topics such as voting rights, the state of the judiciary, criminal justice, as well as offered “tips and tricks” for progressive leadership. The day ended with an award presentation and dinner at the Milwaukee Public Market, followed by a networking gathering hosted by Mastantuono & Coffee S.C.

During our last day together in Milwaukee, attendees amassed a stockpile of practical progressive advice from various workshops and presentations. From discussing ethics in pro bono work to engaging the media to advance the goals of ACS, participants learned and shared ideas of how best to turn their passion into action. ACS members walked away from the Convening with a long list of action items that can help them embark on their progressive legal mission.

Why a convening? You may ask. The ACS Lawyer Chapter team wanted this to be a more intimate event than our larger National Convention in June. Progressive lawyers, judges, and scholars spend so much time helping promote charitable causes, doing pro bono work, and working with law students. We wanted to provide an opportunity for them to connect with other lawyers in a meaningful way to recharge their energy and inspire them to keep up the hard work. With fewer concurrent sessions and more group and network events, attendees said they were able to have quality discussions with other ACS lawyers from around the country.

Thank you to everyone who attended, our hosts Craig Mastantuono and the Milwaukee Lawyer Chapter and Jeff Mandell and the Madison Lawyer Chapter, and our sponsors the Brico Fund, Myron M. Cherry & Associates, LLC, Mastantuono & Coffee S.C., and Stafford Rosenbaum LLP.

We are looking forward to seeing you next year at the second ever National Lawyer Convening!

Trump’s Anti-ACA Sabotage Campaign Tramples On The Constitution -- Why Are ACA Supporters Not Shouting This Out From The Rooftops?

In endlessly excoriating President Barack Obama’s administration of the Affordable Care Act, ACA opponents featured a once obscure constitutional provision, the Article II clause that directs the President to “take care that the laws be faithfully executed.” Legally, the charge that Obama had breached his “take care” obligation was patently meritless, and Obama’s assailants never took their bombast seriously enough to substantiate it, let alone fit it into a claim to take to court.

Indeed, no court has ever invoked the Take Care Clause as a basis for constraining alleged executive overreach. There are obvious reasons for this. If there were an articulated standard for defining a violation of the clause, it could presumably be comparatively complicated to meet it. A jumping off analogy might be former Justice William Rehnquist’s dictum, in the 1985 case Heckler v. Chaney, suggesting that courts must defer to executive branch decisions not to initiate enforcement proceedings, unless an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” In that vein, to make out a violation of the president’s take care responsibility, one would likely have to demonstrate a pattern of actions that undermine a law, or laws, and – because of the clause’s focus on good faith (“faithful execution”) – actions that hamstring the law intentionally. While bad intentions can be, and often are, proven by objective, circumstantial evidence, executive officials bent on nullifying a law have presumably had sufficient savvy to cloak wrongful intent behind well-orchestrated procedures that would deter a judge from finding or a litigant from hanging her case on an allegation that they did in the law on purpose.

Until now.

Spurning stealth, President Trump has used every available megaphone to blare his goal of “let[ting] Obamacare explode,” making it “fail,” declaring “[t]here is no Obamacare, it’s dead,” and as recently as October 16, pronouncing the law “finished. It’s gone. There is no such thing as Obamacare anymore.”

And he and his subordinates are following through, however chaotically. Through a blizzard of policies and actions, the administration has sought to obstruct and discourage enrollment by healthy individuals in insurance plans offered on the state-level exchanges. On October 12, Trump issued an executive order directing the Department of Health and Services, in consultation with the Departments of Labor and Treasury, to develop new regulations that stretch provisions of both the ACA and other major health laws, to further spur defection from robust ACA-compliant plans. If not reversed by the courts or Congress, such measures will cause premiums to skyrocket and insurers to exit the ACA exchanges, and hence restore pre-ACA market conditions in which, for many millions of people afflicted by expensive-to-cover health challenges, insurance is unaffordable or unavailable.

In sum, the faithless execution of the law that has always seemed too daunting to prove, is in this case impossible to deny. The harder question is, so what? What practical difference does that make for ACA supporters?

In litigation to challenge administration efforts to subvert the ACA, there is a role for Take Care-based claims and arguments, but the concrete value-add for such challenges will often be limited. This is because many, probably most, potential Take Care claims would arise in situations where an administration has violated, indeed, grossly violated, the statute or statutes in question. But in such cases, there would ordinarily be no need to go further. The challenge should succeed as a simple matter of showing that the agency has misinterpreted a relevant statute, or the Administrative Procedure Act, which authorizes courts to “compel agency action unlawfully withheld,” or reverse decisions that are “arbitrary, capricious, or otherwise not in accordance with law.” For example, take perhaps the most aggressive and consequential recent judicial reversal of agency inaction, the Supreme Court’s 2007 decision in Massachusetts v. EPA. In that case, the Court ordered President George W. Bush’s EPA to initiate a rulemaking proceeding to determine whether and how to regulate greenhouse gases. The Court sternly rejected the Bush Administration’s claimed discretion not to act, admonishing that the law’s direction to use “’judgment’ is not a roving license to ignore the statutory text, [but] a direction to exercise discretion within defined statutory limits.” Thus, this momentous challenge to the Bush Administration’s stonewalling on climate control succeeded, with no need to navigate the uncharted waters of a Take Care Clause claim.

To be sure, the pattern of perversely motivated actions likely to undergird a Take Care claim would also be a persuasive constituent of the case for showing a statutory violation. Hence, adding a Take Care count could add urgency to the latter, more limited claim, and perhaps move a judge to put aside presumptions of deference or impulses for restraint.

The more interesting question is whether and when a Take Care-based claim could yield judicial reversal of a pattern of statute-subverting actions which, viewed individually, might appear within an agency’s discretion. In that vein, Trump Administration agencies have pursued their “death-by-1000 cuts” strategy with such petty measures as reducing the length of the 2018 open enrollment period from three months to 45 days, virtually eliminating funds for “consumer information and outreach” and “eligibility and enrollment,” slashing funding for ACA-prescribed “navigator” groups to assist prospective enrollees, and drastically curtailing Sunday on-line application and enrollment hours. These actions are explicable only as the President himself has explained them – steps to make the law “implode.” Hence, in principle, there is no reason why, on the merits, a lawsuit should not be upheld, targeting some or all of these actions as elements of a scheme to intentionally violate the president’s Take Care obligation. Still, for potential challengers, questions will remain whether, in particular instances, such lawsuits are likely to succeed, and whether they could secure effective and timely relief. So far, health advocates have answered those questions in the negative, but that does not mean that they will need to do so in every case, or indefinitely. This president’s uniquely brazen campaign to make a landmark law fail cries out for judicial reversal, lest Trump’s perfidy stand as a political precedent for future administrations intent on similar defiance of their faithful execution responsibility.

More important, progressives need to learn what conservatives have long understood – that constitutional advocacy is much too potent to be confined to litigation, or directed only at judges. Ignoring their conservative adversaries’ anti-Obamacare recipe, progressive politicians, though they have faulted his successor for imposing misguided policies that will devastate millions of Americans, have not headlined that he is acting unconstitutionally. ACA supporters should stress that our revolution was fought to end the tyrannical rule of a king, and the Framers of our founding charter duly specified that our chief executive is duty-bound to enforce laws enacted by Congress, not suspend those with which he disagrees. Trump flaunts his determination to shred the Framers’ design. ACA supporters could also underscore that this president has uniquely flouted not only his job description in the Take Care Clause, but the linked oath the Constitution requires him to “solemnly swear” before taking office: to “faithfully execute the Office of President of the United States,” and “to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Sheer repetition of Republicans’ similar charges, flimsy though they were, spread doubts about the legitimacy of Obama’s ACA implementation, and, more generally, about his commitment to the rule of law. These perceptions rippled across media and political fora, and may have influenced some judges. In their political messaging, ACA’s supporters need likewise to spotlight the well-based and credible constitutional case against Trump’s sabotage. Such constitutional messaging could in turn be significantly buttressed by litigation and, especially, by a judicial ruling that President Trump is in breach of his most “solemn” constitutional duty.

President Jim Crow

by Gregg Ivers is Professor of Government at American University. He is currently working on a book, Swingin’ at Jim Crow: How Jazz Became a Civil Rights Movement.

In September 1962, Mississippi Governor Ross Barnett was looking for something – anything – that would boost his sagging political fortunes. Just three years before, Barnett had barely prevailed in a four-way contest for the Democratic Party’s nomination, winning just 35 percent of the vote, barely one percent more than his closest rival. While Barnett would win handily in the subsequent run-off and run unopposed in the 1959 general election, by mid-1961 his autocratic and less-than-honest governing style had rubbed many white Mississippians the wrong way. Sure, he was among the founders of the state’s first Citizens’ Council, an organization of suit-and-tie businessmen set up after the Supreme Court’s decision in Brown v. Board of Education to maintain Mississippi’s unparalleled commitment to racial apartheid in every aspect of public and private life. And, yes, Barnett had shown the Freedom Riders who was boss the previous spring, when he sent the remainder of those who had survived their harrowing May 1961 ordeal in Birmingham and Montgomery to Parchman Farm, the state’s most notorious prison, after their arrival in Jackson for violating the state’s segregation laws.

But in 1960, Mississippi ranked last in per capita and family median income, and remained familiarly positioned at the bottom of every other measure of health, education and welfare. Barnett had pledged during his campaign to attract business to Mississippi by relaxing environmental regulation and promoted “right to work” laws to make union organization nearly impossible, the better to hold down labor costs in order to attract manufacturing jobs to the state. He also promised to improve Mississippi’s public schools and devote resources to improving the state’s infrastructure. These promises became very difficult for the new governor to fulfill because of the state’s limited public resources.

And there were other, not-so-secret reasons for Mississippi’s destitution. In 1960, almost all African Americans in the state worked for whites as menial laborers, on farms or, as was the case for women, in domestic service. They were paid, at best, subsistence wages or, in the case of farm workers, in trade as sharecroppers. And whatever money actually changed hands between white employers and black workers came not in the form of a check with deductions, but cash. Approximately 55 percent of Mississippi’s population lived in poverty; for blacks, the poverty rate was closer to 80 percent, both figures that far exceeded the national average. Not coincidentally, poverty rates in 1960 were highest in the Southern states where cotton had once been king and required a poor, unskilled and racially subservient black labor force to pick it.

Literacy and education attainment fared no better. About five percent of the state’s general population was illiterate, second only to South Carolina. Then, as now, Mississippi had the highest percentage of Africans Americans relative to the general population. In 1960, that percentage was 42 percent, down from approximately 53 percent in 1900, a loss attributable to the Great Migration of Southern blacks for Northern cities or anywhere else where the iron boot of Jim Crow was less severe.

In addition to economic and educational deprivation, Mississippi, like all the Southern states, had effectively disenfranchised its African American voting-age population after the collapse of Reconstruction by amending its state constitution by placing restrictions on the right to vote. In 1956, the Mississippi legislature went further than even states like Alabama and South Carolina by establishing the Mississippi State Sovereignty Commission. At state expense, the Commission acted as a spy agency against its black population and any “outside agitators,” black or white, involved in the blossoming civil rights movement. Their pictures, names and addresses were published in local newspapers, passed along to employers, provided to banks that extended credit to blacks. This also gave terrorist organizations like the Ku Klux Klan a marker on where to inflict their special brand of terror should black Mississippians forget their place in the Southern racial social structure.

Ross Barnett made clear during his 1959 campaign for governor that no one would have the upper hand on him when it came to enforcing the state’s meticulous regime of racial apartheid. Barnett, a former Sunday school teacher, assured white Mississippians that white children would never cede their place in the social order by attending school with black children no matter what the Supreme Court said. Ever. This was the will of God, who, as Barnett once said, “made the Negro different so he could punish him.”

Despite promises that he would herald in a “new era” of prosperity, Barnett’s stock had fallen over the years for failing to improve the conditions of its white citizens. That autumn, Barnett was booed when he attended Old Miss football games in Oxford, especially after word broke that he had used $300,000 in state funds to install gold-plated faucets in the bathrooms of the governor’s mansion. For the poorest state in the country, Barnett’s commitment to self-dealing and personal vanity was not going over terribly well with a white population in which one in three lived at or below the poverty line.

Then, on September 3rd, 1962, a gift wrapped in electoral gold arrived on Barnett’s front door. A federal court ordered the University of Mississippi to admit James Meredith, a 29 year-old Air Force veteran, for the fall semester. Barnett wasted no time in seizing upon such a glorious opportunity to reestablish himself with white Mississippians who would resist, by any means necessary, the integration of their beloved Ole Miss. This was an institution, after all, that closed temporarily in September 1861 after all but four of its 135 students took up arms on behalf of the Confederate cause.

On September 13th, Barnett gave a statewide television and radio address in which he announced that the state faced its “gravest crisis since the War Between the States.” He spoke of an invisible “they” comprised of “professional agitators and the unfriendly liberal press and other trouble makers” who were “pouring across our borders intent upon instigating strife among our people.” He warned that “paid propagandists are continually hammering away at us in the hope that they can succeed in bringing about a division among us.” Barnett implored white Mississippians to stand up to “the moral degradation, to the shame and the ruin which have faced all others who have lacked the courage to defend their beliefs.” That line surely resonated with the descendants of their Confederate ancestors who had experienced the humiliation of defeat and occupation by the Union Army during the brief period of Reconstruction. Never again, was Barnett’s message.

On September 29th, Barnett made a dramatic appearance at the Ole Miss-Kentucky football game. At half time, Barnett walked to the middle of the field, took the microphone and, to the great delight of 41,000 all-white fans, now up on their feet and waving their Confederate flags, uttered the most memorable sixteen words of his political career:

“I love Mississippi,” Barnett thundered, dragging out the “love” for maximum effect. “I love her people, her customs! And I love and respect her heritage.” Between sentences, the crowd roared back. “Never, Never, Never, n-o-o-o Never.” “Never shall our emblem go, from Colonel Reb to Old Black Joe.” “Two-four-six-eight we don’t want to integrate.” Barnett soaked up the adulation he so desperately craved

Behind the scenes, Barnett had been negotiating with the Kennedy Administration to admit Meredith in a manner that would allow him to save face with the rank-and-file white Mississippians who were ready to bear arms in defense of their “customs” and their “heritage.” He understood, deep down, that the law was not on his side, not after watching how President Eisenhower federalized the Arkansas National Guard and dispatched the 101st Airborne Division to secure the admission of the Little Rock Nine to Central High School just five years before. Intoxicated by the crowd at the football game, Barnett reneged on his commitment to admit Meredith after Kennedy told him he would not allow him to stage a made-for-television event where federal troops “forcibly removed” him at gun point.

On the evening of September 30th, the Ole Miss campus staged an armed revolt against the 500 or so federal marshals and other law enforcement officials that Kennedy had dispatched to secure Meredith’s admission on Monday. The confrontation worsened, as hundreds of armed white resisters from surrounding states joined the Battle of Oxford. It was as if somehow, almost one hundred years after the end of the Civil War, this would offer a second chance for a new Confederate army to get it right.

By the time dawn broke that Monday morning, two people, a local resident and a French reporter, both of whom were white, had been killed. Almost two hundred federal marshals had been injured, with almost thirty suffering gunshot wounds. At 8 a.m., James Meredith registered for his fall classes. But Ross Barnett had endeared himself to the state’s most devoted adherents of Mississippi’s special brand of Jim Crow. He had resisted the federal government through armed force. Barnett emerged from his stand-off with the Kennedy Administration a hero, and would inspire a young governor next door, George Corley Wallace, Jr., to “stand in the schoolhouse door” a year later to prevent, unsuccessfully, the admission of Vivian Malone and James Hood as the first two black undergraduates to attend the University of Alabama.

Less than one year into his term, Donald Trump is a historically unpopular president. Since taking office his approval ratings have consistently hovered somewhere between 35 and 40 percent. His behavior as president is no different than his behavior as a candidate – crude, disrespectful of the office he holds, disdainful of the rule of law, and ignorant of the true consequences of the policies he promised “his people.” Above all, he is a racial demagogue whose public commentary is steeped in hateful rhetoric towards those who have dared to criticize him. Like Ross Barnett, Donald Trump promised his “populist” base that he would look out for them, not the “elites.” Like Ross Barnett, Donald Trump openly ridicules anyone and anything that threatens his narrow view of how the world should work, and routinely suggests that conspiratorial forces are at work to deny him the greatness so obvious to those that, come hell or high water, will support him no matter what. Like Ross Barnett, Donald Trump takes great pride in the unapologetic stream of bigotry, stench, corruption, and sheer cruelty that flows from his administration almost every second of every hour of every day.

Where Donald Trump has succeeded like no modern president before him is in fanning the flames of racial and cultural resentment in a manner so obvious and so flagrant that somewhere in Jim Crow Governor Heaven Ross Barnett, George Wallace and Orval Faubus are beaming with pride. At every point in his presidency where Trump has felt cornered and maligned he has turned to Chapter One, Page One, in the Jim Crow Governor’s Manual – find the “other” of the moment and place the weight of the world’s problem on the shoulders of his enemies, all of whom he defines by skin color, religion and, to update the Jim Crow model, gender and sexual orientation. Unable to make good on your promises to revive outdated industries, provide “beautiful” healthcare for all by stripping 25 million or so Americans of their health insurance or develop a meaningful infrastructure program? Ban transgender soldiers from the military. Deport the DACA beneficiaries. Lash out against Gold Star families for suggesting that he is insensitive to their plight and their needs – and make sure they are persons of color. Encourage violence against your opponents, especially if they are women or minorities – or preferably both. Label women who claim you sexually assaulted or harassed them as liars and “wackos.” Pick fights with African American members of Congress. Tell gay men and women that they don’t deserve protection from workplace discrimination. Threaten to revoke broadcast rights from the broadcast media or order them to fire their African American commentators who criticize you. Label black professional athletes “sons of bitches” for peacefully protesting police brutality. Pardon law enforcement officials for engaging in racist policing. Stay silent when white Americans commit acts of terrorism against other Americans; but attempt to ban Mexicans and Muslims, all of whom are either “rapists” or “terrorists,” from entering the United States. Label the news media that you cannot control or manipulate the “the enemies of the people.”

And lie. All the time.

In late August, President Trump, having reached another low after reassuring the white Christian supremacists who marched in Charlottesville less than two weeks before that there were actually some “very fine people” among them, traveled to Phoenix for one of his Nuremberg-style rallies. He decided it was time to take a public stance in defense of Confederate memorials, whipping up the cheering crowd by telling them that an omnipotent, invisible “they” were trying to take away “our culture” and “our history” by calling for the removal of statues paying tribute to Robert E. Lee, Jefferson Davis and other Confederate defenders of slavery and white supremacy. Forget, for a moment, whether it even makes sense for this insular New Yorker to come to the defense of the Lost Cause in a state that did not exist until 1912. A month later, Trump visited Huntsville, Alabama, where he entertained another arena full of his supporters by coming to the defense of “our history and our heritage,” and reminded the crowd that “they” had total disrespect of our heritage, a total disrespect of everything “we” stand for.” We? Really?

But perhaps Trump knew that Alabama gave him the fifth largest margin of victory in the 2016 election, all the more impressive when you consider that 28 percent of Alabama’s population is African American, and none of the other states in front of Alabama had a black population of more than 3.5 percent. Perhaps Trump even knew that Alabama is one of only three states to celebrate Robert E. Lee’s birthday on the same day as Martin Luther King, Jr.’s. Or that Arizona repealed Martin Luther King, Jr. day in 1987, only to reinstate it in 1992 after the National Football League, ironically enough, suggested it might find another place to hold the Super Bowl.

Whatever Donald Trump lacks in intellectual acumen there is no doubt that he understands the central place of racial resentment in the hearts and minds of the white working and underclasses that form so much of the base of his core support. Trump knew exactly what he was doing when, for five years, he relentlessly pushed the racist lie that Barack Obama was not born in the United States. As recently as August 2016, 72 percent of registered Republicans believed it. Who knows if Trump even believed his own lie? He knew that there were millions of people out there who would because they wanted to, not because it was true.

Trump did not so much create the racism now on open display in our politics and culture as he did liberate sleeper cells of millions of angry whites emboldened by his authoritarian embrace of white identity politics. All that matters for Donald Trump is the message at the core of his campaign – you are white, you have been ignored, you deserve better and that I will restore your rightful place in the social order. Just like Ross Barnett, Donald Trump understands the power that hate and fear filtered through a skewed racial prism have among disaffected whites while rewarding the donor classes of Republican politics with plutocratic policies. Donald Trump is not some unorthodox free thinker bringing fresh energy to a stale and tired office. No, he is just a conventional Southern politician, albeit one with a New York accent, from a past that too many Americans believed was dead and buried. Donald Trump is President Jim Crow.

 

Benchmarks Provide Sound Guidance on Conducting Credible Congressional Oversight

by Kristin Amerling, Managing Director of Lanthorn Strategies, consultant to ACS, former chief counsel to the House Committee on Oversight and Government Reform and the House Committee on Energy and Commerce, and former chief investigative counsel to the Senate Committee on Commerce, Science, and Transportation.

Recently a bipartisan group of congressional oversight experts issued a set of principles titled “Benchmarks for Congressional Investigations into Russian Interference with U.S. Elections and Related Matters.” This initiative is an important tool for evaluating the credibility and rigor of ongoing investigations into alleged election malfeasance. 

The document describes four major oversight goals:

 

(1) a publicly defined investigation scope that includes commitment to follow the facts where they lead;

(2) comprehensive bipartisan cooperation;

(3) transparency on developments and findings; and

(4) regular public reporting on investigative activities.

It also outlines specific ways for Congress to demonstrate commitment to these principles, such as by holding hearings in public unless there is a compelling reason for a closed session.

The benchmarks focus on investigations examining foreign manipulation of our elections – an issue with high stakes for Americans across the political spectrum. But regardless of the inquiry’s subject matter, adherence to practices set out in this document will promote effective congressional oversight and reinforce public confidence in investigative findings.

To underline this point, let us take a closer look at the congressional subpoena authority. This is a tremendous power that enables Committees to demand documents and testimony from witnesses – and pursue criminal contempt proceedings against those who don’t comply.

The benchmarks document encourages the exercise of this power with bipartisanship and transparency, recommending that committees issue subpoenas only with agreement of the Chair and Ranking Member or by Committee vote.

Such a practice demands dialogue across party lines and accountability to the public. When issues are so contentious that the chair and ranking member do not agree, they get airing in a committee meeting, allowing the public to better understand the need for and scope of the proposed action.

For many years, this approach to subpoena practice was in fact standard operating procedure for House and Senate investigations. The Iran-Contra, Senate Whitewater, and Nixon impeachment investigations – all high-profile inquiries – followed bipartisan subpoena practices. And to this day this approach is written into the rules of most Senate Committees.

During the 1990s, however, the House Committee on Oversight veered away from this tradition. When Representative Dan Burton became Chair in 1997, he began unilaterally issuing subpoenas. And more recently, House leadership has revised the rules for other committees to provide unilateral subpoena authority to their chairmen.

The Oversight Committee’s experience with subpoena power highlights the value of building bipartisanship and public scrutiny into the process.

During his six-year tenure at the Committee helm, Chairman Burton issued over 1000 subpoenas with neither minority concurrence nor Committee debate. Of these, 97% targeted Clinton Administration or Democrats.

And when subpoena mistakes occurred, accountability was lacking. For example, the Committee erroneously issued a subpoena to a professor who happened to have the same name as the intended target. When this error was discovered, instead of apologizing, majority staff suggested the professor still might be under investigation, telling the media that “Whether [he] deserves a subpoena or not, we haven’t decided. We’ve put it on hold. If you make a mistake, and we’re not sure we made one, you want to look into it.”

While the Oversight Committee’s written rules have retained unilateral subpoena authority since the Burton years, some of the Chairs who succeeded Burton nonetheless adopted bipartisan practices. For example, in 2006, Chairman Tom Davis issued a subpoena in a joint inquiry with Ranking Member Henry Waxman on Administration contacts with lobbyist Jack Abramoff. And when Waxman was Chairman he obtained Davis’s support or Committee vote for every subpoena he issued.

As then-chief counsel to Chairman Waxman, I saw firsthand that following traditional subpoena practices did not prevent rigorous oversight. During Waxman’s tenure, Ranking Member Davis requested a Committee vote on only a handful of proposed subpoenas, such as a demand to the Republican National Committee for information on alleged Administration use of RNC email for official business. Even then, the Chair was able to issue subpoenas after Committee debate and approval – and the public had a role in vetting the most contentious subpoenas.

With rules changes in recent years, many House committee chairs -- including those with jurisdiction over alleged election interference – have authority to issue unilateral subpoenas. However, like Chairman Waxman, they can choose to involve bipartisan and public review. Close public attention to the choices committees make on “benchmark” practices will encourage credible outcomes as investigations unfold.

 

The sham of judiciary nomination hearings

by Senator Sheldon Whitehouse, (D-R.I.)

*These remarks were given by Senator Whitehouse during a Senate Judiciary Committee Nomination Hearing on November 1, 2017

Our Senate Judiciary nominations hearings, I believe, have become something of a joke. Nominees come to us readied for our hearings by "murder boards" that taught them how to withstand all five minutes of questioning by Senators. Nominees are often packed into panels, so a Senator’s five minutes get spread across multiple nominees. The questioning of nominees is often simple and rote. A fundamental premise in the proceedings is that there is inevitably “law” that can be impartially applied to “facts,” and there endeth the lesson.

The falsity of this premise can be shown in two words: Merrick Garland. If judging were all about impartial application of law to facts, why the desperate effort to stop the most qualified judge to be nominated to the Supreme Court in our lifetimes? Why does the Supreme Court majority of five Republican appointees rule so predictably on so many issues important to big Republican interests? Why did candidate Trump need to make a list of whom he’d appoint to the Court to get conservative backing? Why are gobs of political dark money spent by special interests to push for the confirmation of judicial nominees? All of this political behavior around judicial appointments belies the notion that it’s just about impartially applying law to facts. Yet we’re supposed to accept the pretense.

The pretense is belied not just by political behavior, but also by what practicing lawyers experience day to day. Of many possible examples, here are particularly obvious ones.

Trial judges have virtually unlimited discretion to decide on the credibility of witnesses, and if they are predisposed against black people or police officers, that will affect credibility determinations in, for instance, police brutality cases. A case is not made up of “facts,” but of a cloud of often contradictory evidence from which “facts” must be drawn – usually through the prism of a witness's credibility. Judicial bias can affect credibility determinations, and thus case outcomes.

Procedural matters such as discovery rulings and case scheduling can allow favoritism or predisposition to creep in and affect a case. A court can allow a well-heeled defendant to batter a plaintiff into submission with endless motions and discovery – the "paper blizzard" defense.  Jury instructions can be given in ways that lean one way or the other (but still survive appellate review).

Judges sometimes throw out jury verdicts because, well, they’re just too big, or too disruptive of the status quo. Cases often require judges to consider multiple factors, and how the different factors are weighted falls within the discretion of the judge – at least until the weighting becomes so slanted that it tips the very generous “abuse of discretion” standard of review. (If it were not clear enough that discretion is involved in all these decisions, the name of the “abuse of discretion” standard ought to settle that question.) Judges can even refuse to apply the law as written, if it would lead to an “absurd” result.

In practice, there’s simply no way to prevent a judge’s unconscious biases, life experiences, and personal beliefs from influencing his or her decision-making.  Indeed, the law routinely asks judges to give tangible meaning to vague and general terms like “due process” and “liberty”; and to decide whether searches or seizures are “reasonable,” whether a particular governmental purpose is “compelling,” whether a given punishment is “cruel and unusual,” or whether a governmental act or omission “shocks the conscience.”

Judges on appeal are customarily asked to consider the consequences of their decisions by litigants anxious to steer a court away from an undesirable decision. Consequence-based advocacy fills amicus curiae briefs in the United States Supreme Court. There is no question of law in a judge’s evaluation of the likelihood, or the merits and demerits, of those suggested consequences. If all that were going on was a simple application of facts to law, consequences would have no place, and well-heeled amici would not waste their money on those briefs.

These life experiences of practicing lawyers are echoed by learned scholars and judges. The judgment calls made by judges, as one scholar wrote, “inescapably are influenced by – if not based on – a judge’s own views and experiences.”

One prominent aspect of the hearing charade is asking nominees to forswear “judicial activism.” But as scholar Erwin Chemerinksy put it, “any first year law student knows that judges make law constantly.” Our constitutional history is riddled with activism that moved constitutional understanding forward: consider the before-and-after of Brown v. Board of Education, or Loving v. Virginia, or Roe v. Wade, or recently, Obergefell v. Hodges.

In itself, “anti-activism” promotes its own bias: that the mores and social norms of two centuries ago should receive preference today in constitutional analysis. That preference for old days and old ways is itself a policy choice.

“We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own,” wrote Judge Benjamin Cardozo in his seminal work, The Nature of Judicial Process. Cardozo rightly recognized that many cases are squarely controlled by precedent, where “the law and its application . . . are plain.” He described these cases as an exercise in comparison, to match the colors of the case at hand “against the colors of many sample cases” in the jurisprudence. “It is when the colors do not match,” Cardozo observed, “when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.”

Judge Theodore McKee, of the United States Court of Appeals for the Third Circuit, has reflected on Chief Justice Roberts’s metaphor that a judge’s role is merely to “call balls and strikes.” While “noble” in principle, McKee explains, the “the ideal of objective adjudication is actually counterproductive because it assumes a reality that is based upon an abstract principle rather than our everyday reality.” Like Cardozo, McKee acknowledges that in many cases, the facts and law are so clear that there is “little room for a judge’s personal view to impact his or her decision.”  But he urges judges to “candidly admit that there are other instances where there is enough play in the factual or precedential joints to allow personal beliefs to affect our adjudication.” Judges cannot just call “balls and strikes,” because they may not share a common strike zone.

Judges – including lower court judges – do make law. The common law – our founding tradition – is judge-made law. Justice Felix Frankfurter put it well: “one of the evil features, a very evil one, about all this assumption that judges only find the law and don't make it, often becomes the evil of a lack of candor. By covering up the lawmaking function of judges, we miseducate the people and fail to bring out into the open the real responsibility of judges for what they do.”

So let’s be candid. What we want, I think, is judges who hold American democracy first in their heart; judges who understand that there is abundant scope for the influence of their bias, prejudice, and political, philosophical, or religious views yet will endeavor to be always fair notwithstanding; judges who are willing to make disruptive or uncomfortable rulings if justice requires rather than bow to power or convention; judges who understand that often the courtroom is the public’s last defense when powerful political interests have overwhelmed the legislative and executive branches; and judges who can honestly guarantee that the big special interests who bring so much pressure to bear on the judicial nomination process will not receive favor.

Too often, we do not see this. And too often, the charade that Judiciary hearings have become never touches on these problems, and foments a Tooth Fairy view of adjudicating that is, as Justice Frankfurter said, a disservice to the nominees, the committee, to the public, and to the country.