This Man Has a Plan to “Unpack” the Federal Courts

Glenn Kirschner; image courtesy of commons.wikimedia.org

Even pre-Trump, Senate Majority Leader Mitch McConnell and the Republicans were focused on reshaping the judiciary in a very partisan, extreme manner. McConnell prevented President Obama’s Supreme Court nominee, the highly regarded jurist Merrick Garland, from even receiving a vote, which at that point may well have led to Garland’s confirmation.

But with Trump as his Oval Office rubber stamp, McConnell has kicked this campaign to capture the judiciary into high gear. He’s already placed more than 200 federal judges—roughly one-quarter of the total—with 53 of them on the important Appellate Courts.

And now that the Senate is back in session, McConnell is taking up judicial appointments once again—instead of bothering with the Heroes Act that would provide desperately needed assistance to the states and hungry families devastated by Trump’s non-handling of the COVID-19 pandemic and its associated economic tidal wave.

The result is that the McConnell-Trump impact on the judiciary may cast a dark shadow upon us all for decades.

But Glenn Kirschner says that need not be the case. A longtime federal prosecutor who now appears as a legal analyst on NBC and MSNBC, Kirschner has a podcast called “Justice Matters” and conducts daily discussions of timely legal issues on YouTube. 

I listened to the second podcast in the series: “Unpacking the Federal Courts,” in which he offers a three-point approach to undo some of the harm done by the Republicans’ ramming through a number of unqualified judges via almost always strictly partisan votes. 

Before anyone pigeonholes Kirschner politically, I want to underscore that his emphasis is on the judges’ suitability for their positions.

“Presidents have the right to seek out those with their world views and judicial philosophies—there’s nothing wrong with that,” he says. “Elections have consequences.” (How well we’ve learned that hard lesson!) 

But, he stresses, that’s different from pushing through people whom the American Bar Association has deemed “not qualified.” And it’s different from picking people solely because of their ideology.

Kirschner states that based on his own experience in the Washington, DC, US Attorney’s Office, he feels he’s knowledgeable about “what it takes to be a good judge.” That office is a very busy place: it’s the only one of the 94 US attorney offices in the country that handles both federal and local criminal prosecutions; the others handle only federal crime violations. 

Thus, he’s appeared before many judges. (In the local DC Court, there are between 60 and 65 judges, who are all Presidential appointees.) He estimates that he’s seen about 200 judges—“the good, bad, ugly—though most were really good.”

Although Kirschner doesn’t mention this development in his podcast, in recent years, Republican administrations have brushed aside the ABA’s special status as the nonpartisan, fair examiner of a prospective judge’s qualifications, relying instead on the clearly conservative Federalist Society. I can see why Kirschner looks to the ABA.

Kirschner points out that Obama’s modus operandi with judicial appointments was to submit the potential nominee’s name to the ABA for qualification. If the ABA found that individual “not qualified,” Obama didn’t nominate him or her. “Isn’t that what we expect?,” asks Kirschner.

In contrast, McConnell—disregarding the ABA entirely—has sought out far right and extremely conservative judges, whose nominations Trump doesn’t question, and then maneuvered them into judgeships. 

In one case, McConnell nominated a young man named Justin Walker of Kentucky, one of those the ABA deemed “not qualified.” In his investiture ceremony, which Kirschner points out is almost invariably the occasion for a new judge to show his apolitical, judicial temperament and speak “fairly, honorably, impartially, and with civility,” Walker said the following: 

“We are winning, but have not yet won,” and warned of “losing our courts to critics who call us terrifying and describe us as deplorable.”

Just months after so clearly demonstrating his judicial restraint and fairness (!), Walker was appointed to the District of Columbia Court of Appeals—a hugely important position. There he wasted no time: he blocked the use of the city of Louisville’s Fairness Ordinance against a photographer who said taking pictures of a gay couple’s wedding was against her religious beliefs.

(It’s worth noting that Walker is 37; McConnell looks for the young’uns for these lifetime appointments. He’s even tried to persuade older judges to retire to give him more firepower.)

So, Kirschner asks,

“How do we unpack? We are heading in the wrong direction. You can be a conservative or a liberal, but you ought to be qualified. And you can’t back discrimination.”

Kirschner’s Three Solutions

First. “Any judge who lied under oath during judicial hearing can be charged with perjury and removed from the bench.” Kirschner is convinced some of them have, including Supreme Court Justice Brett Kavanaugh.

“We let the FBI do a full, fair, apolitical investigation.”

You may recall the FBI was not permitted to complete its investigation of Kavanaugh before he was approved. Kirschner cites an issue about which he believes the evidence that Kavanaugh lied warrants further examination. 

This action is designed not to be punitive, Kirschner stresses; its goal is to serve justice.

Second. “We create a Citizens Brigade to be in courtrooms all day every day to keep an eye on the judges. I’ve seen misconduct by judges.” Such judges “will need to be referred and may be sanctioned or removed.” 

He refers to uscourts.gov, where there are FAQs: for Filing a Judicial Conduct or Disability Complaint Against a Federal Judge (when someone believes a federal judge “has committed misconduct or has a disability that interferes with the performance of his or her judicial duties.”)

That would be the mechanism the Citizens Brigade would use.

Third. “We can put more federal court judges on the bench.” The Supreme Court in our history has numbered between five and ten justices, he points out. The current number of nine “is not constitutional mandate or requirement. We can maybe add two justices; that’s something we can consider.”

And if, for example, there are two “not qualified” judges on the 2nd Circuit, “we can raise the number of judges by two; that will help neutralize” the impact.

Kirschner also suggests the establishment of an InterBranch Disputes Court (IBDC), which would handle conflicts between the branches of government. A single nonpartisan judge in a designated courtroom would hear and resolve the types of seemingly intractable problems that have been tying up governmental functioning. “In less than a month, [the issue would be] taken out of delays.”

Considering all the court battles and “running out the clock” during the impeachment hearings and other situations of late, that seems like an intriguing idea.

I suspect Kirschner would never be making these recommendations if it weren’t for what we’ve seen over the past several years. Clearly, post-Trump, there is a greater need for citizen activism and reevaluating our longheld norms than ever before.

“Donald Trump has blown chasms of corruption and crime [into our system],” he says. “Now we know what we need to fix. It’s our responsibility and our honor to fix it.”

I’m sure Kirschner isn’t suggesting that Democrats would be apolitical in selecting judges. Nor am I making that assumption in presenting his views. A President Biden would surely appoint those who are compatible with his world views and judicial philosophies. 

But I feel confident that a Biden-Harris administration would never seek to appoint a judge whom the ABA found “not qualified.” And with the Democratic “big tent” of varying views, I would expect appointees to be more in synch with where most Americans are on the important issues of our day, such as voting rights, health care, and sensible gun legislation.

Glenn Kirschner is a very serious legal voice who has earned numerous awards throughout his career, including several for trial excellence and one for “fairness, ethics, and trial excellence.” (I look forward to listening to his other podcasts, including one on police reform.)

He has clearly been profoundly shaken by the Trump administration, et al, perversions of the law to which he has devoted his career, and has decided, as he says early in the podcast, that it isn’t enough to define and analyze a problem; one must also offer solutions. And so he has.

What do you think of them?

Assuming a Biden-Harris administration in January, would these steps be accepted in our still-highly polarized country? Are you concerned about “not qualified” judges with firm political agendas making the laws that will govern us all for years to come? Can you see yourself volunteering to spend time in a courtroom as part of a Citizens Brigade? Any other thoughts stimulated by this post?

Annie

Continue reading “This Man Has a Plan to “Unpack” the Federal Courts”

The Choice

[Note from Annie: I feel the post below, written by my fellow blogger Infidel753, is so thoughtful and persuasive that I’m featuring it here. Infidel’s highly informative, provocative, and often entertaining blog may be accessed at infidel753.blogspot.com.]

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This November, one of two things will happen.  Either Biden will be elected president, or Trump will be re-elected.  Many people fervently believe there should be some third option.  There isn’t.  It’s going to be one of those two.

This post is addressed to those who, for whatever reason, don’t like Biden.  Maybe you consider him too centrist or too old or too old-fashioned or “Republican-lite” or whatever.  Maybe you think the Tara Reade accusation has credibility (though there are good reasons to believe otherwise).  Maybe you think the process by which millions of rank-and-file Democrats chose the nominee (from among a remarkably large and varied group of candidates) was tainted in some way.  Maybe you hold that your vote has to be earned and Biden hasn’t done this or that thing that qualifies him as having done so.

None of that is a good enough reason to let Trump be re-elected.

None of that is a good enough reason to let him saddle the whole country with a 7-2 majority of reactionaries and theocrats on the Supreme Court for decades to come.

None of that is a good enough reason to risk four more years of migrant family separation and kids in cages, or of rhetoric which blatantly scapegoats Latinos, Muslims, and whatever other minority makes a convenient target.

None of that is a good enough reason to leave this vicious and hateful man in a position where he could block laws to help the unemployed and the uninsured, laws to end gerrymandering and vote suppression, laws to protect gay equality and the right to abortion nationally, that a Democratic House and Senate might pass.

None of that is a good enough reason to tolerate four more years of the massive and flagrant banana-republic corruption we’ve seen.

None of that is a good enough reason to risk four more years of budget-wrecking giant tax cuts for the wealthy and corporations, and efforts to sabotage Social Security, the Postal Service, and the Devil knows what else.

None of that is a good enough reason to facilitate four more years of bungling the response to covid-19 (yes, it will still be around long after January 2021).

None of that is a good enough reason to accept four more years of posturing brats like Kushner, malignancies like Barr, and the rest of Trump’s crew of grifting toadies, keeping their hands on various levers of power.

None of that is a good enough reason to submit to four more years of undermining the separation of church and state.

None of that is a good enough reason to allow four more years of trashing our country’s relationships with other democracies, and enabling and legitimizing murderous gangster regimes around the planet.

None of that is a good enough reason to risk four more years of the federal government actively sabotaging all efforts to fight climate change.

Perhaps you want to vote third party to “send a message” of some sort.  But look at history.  Nobody knows or cares what “message” Nader voters in 2000 or Stein voters in 2016 thought they were sending.  What mattered was who became president.  Do you think you’ll be punishing Biden or the DNC by withholding your vote?  They won’t suffer if Trump is re-elected.  It’s the kids in cages, the unemployed and uninsured, the gay people and minorities, the countless additional people who will lose their lives or health to covid-19 — they’re the ones who will suffer.

Or maybe you think your vote isn’t needed because Biden’s victory is inevitable or you don’t live in a swing state.  Yes, Hillary’s victory was also “inevitable” in 2016, and look how that worked out.  And even if you live in a safe state for one candidate or the other, the popular vote matters, psychologically even if not legally.  If Trump loses, the wingnut noise machine will immediately go into overdrive attacking the legitimacy of the result.  The bigger the popular-vote margin, the less effective their sabotage will be upon the mass public mind.  The bigger the popular-vote margin, the more clearly our country will be seen by the rest of the world to repudiate the contemptible cruelty and madness of the last four years.

And it’s not only the presidency.  We need to win it, yes, but we need to hold the House and win the Senate as well.  Leaving any one of those three under the Republicans’ control would enable them to block almost all progress on expanding health coverage, protecting the right to vote, restoring abortion rights, saving the climate, or anything else.  And again, in the real world, the only way to end Republican control of those institutions is to achieve Democratic control.  There’s no third option.

It’s not only about Biden or the Democratic party.  It’s about saving the country.

Posted by Infidel753 May 5, 2020

Continue reading “The Choice”

Think Trump’s Not Moving Toward Total Autocracy? This International Analyst Knows the Signs Too Well…

Michael McFaul, Stanford University

[Note from Annie: I’ve extracted from Twitter a series of observations made by Michael McFaul last week after viewing the Republican National Convention that I think form a compelling picture of the dangers we’ll face if we don’t remove President Trump from office in November. (The emphases are mine.)

McFaul served as Special Assistant to President Obama and Senior Director for Russian and Eurasian Affairs at the National Security Council at the White House from 2009 to 2012, and then as the United States Ambassador to Russia from 2012 to 2014. The author of several books and an academic at Stanford, he cites his research interests as American foreign policy, great power relations, and the relationship between democracy and development.]

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For those of us who study autocracies, including elections in autocracies, there were a lot of familiar messages, symbols,  and methods on display this week at the Republican National Convention.

1. Cult of the Personality.  This show was all about Trump. (3 years after the death of Stalin, Khrushchev gave his secret speech in 1956, titled “On the Cult of Personality and Its Consequences.” I wonder if a future GOP leader will give a similar speech someday?)

2. Administrative resources.  Autocrats and semi-autocrats frequently use government resources for personal electoral gain.  We have the Hatch Act to prevent such behavior in the U.S. It’s obviously not working. [McFaul is speaking here of Trump’s illegal use of the White House, its gardens, and its personnel to stage his convention. We all paid for that picture of opulence, folks.]

3. Blatant disregard for the law.  That Trump’s team dared anyone to charge them with violating the Hatch Act is exactly what Putin and other autocrats do all the time. Laws don’t apply to the king & his court, only to the subjects.

4. Blatant disregard for facts.  As U.S. ambassador to Russia, I found this Putin regime trait most frustrating. We—the U.S. government—were constrained by facts. They were not. Trump obviously was not constrained by facts last night. He usually isn’t.

5. Us versus Them populism. “Elites” versus “the people” nationalism. Autocratic populists use polarizing identity politics to divide societies all the time. Many populist leaders actually have little in common with the “masses.”  (Putin is very rich.)

6. The opposition is the “enemy of the people.” Putin & other autocratic populists cast their opponents as radicals & revolutionaries. They don’t focus on their own records – often there is little to celebrate – but the horrors that will happen if they lose power. Sound familiar?

6b. There is one difference between Putin and Trump so far. Putin also claims falsely that his political opponents are supported by foreign enemies, the U.S. & the West. Trump has not gone there full-throated yet.  But my guess is it’s coming. “Beijing Biden” is a hint.

7. Law and Order.  Autocratic populists all shout about it, even when the opposite is happening on their watch.

8. The good tsar versus the bad boyars.  Kings and tsars always blamed bad provincial leaders for national ills. Putin blames the governors all the time… just like Trump.

9.  Individual acts of royal kindness.  Putin, like the tsars he emulates, does this all the time. Trump offering a pardon or “granting” citizenship (which of course he didn’t & doesn’t have the power to do) are typical, faux gestures of royal kindness toward his subjects.

10. Homage and fealty. Vassals must signal their complete loyalty and absolute devotion to kings and autocrats. Those that don’t are banished from the royal court or the party. (Where were the Bushes last night?)

11. The royal family.  In this dimension, Trump acts more like a monarch than even Putin. (But watch Lukashenko and his gun-toting teenage son in Belarus) The many Trump family members who performed this week–even a girlfriend got a slot–went beyond even what Putin does.

12. There’s still one big difference. We still don’t know who will win the November election. That uncertainty is a crucial difference between electoral democracies & electoral autocracies. It’s also a difference that has no guarantee of lasting, depending on the outcome this year.

_________________________

The Bottom Line:

FIGHT FOR YOUR RIGHT TO VOTE–AND THEN VOTE!

Annie

Continue reading “Think Trump’s Not Moving Toward Total Autocracy? This International Analyst Knows the Signs Too Well…”

First, Let Me Apologize for My Lunkheadedness…

The Roll Call of the States Reaches Rhode Island

I realize that lots of people avoid talking about politics in these dreadfully polarized times.

But, political junkie that I am, I failed to realize that some of you don’t even want to read about politics—not in the newspapers, not on the Internet, and not on this blog. (Oh, my!)

So it will be hard for you to understand how elated I was after watching the full four days of the Democratic Convention. And how disappointed I was to learn that even committed voters didn’t watch most of it.

I’ll take a wild leap and state that I think many of the 70% of us who say we think our country is going in the wrong direction would feel much more optimistic about our future if you’d heard some of the truly inspiring speakers and watched the roll call of the states that showed slices of Americana many of us never see (including Rhode Island’s famous calamari, pictured above—who knew?). 

You may well have been impressed, as I was, by viewing the plethora of non-political people making the case that this country needs to end its chaos and hate mongering, stop the rising deaths from coronavirus by a national plan to control the virus, and begin rebuilding the economy by electing Biden-Harris.

Know who nominated Biden? Not some hotshot politician, but New York Times security guard Jacquelyn Brittany, who had escorted him to an editorial board meeting at the Times during the campaign and blurted out “I love you!” (He didn’t gain the Times’s endorsement, but he sure had hers.) Sorry for my sappiness, but I thought that was just a delightful touch.

And you’ve probably heard about 13-year-old Brayden Harrington, whom Biden had met during the primaries on a rope line in New Hampshire. Brayden, a stutterer, said Biden’s pep talk with him changed his life. (Biden has spoken openly about the childhood affliction that still affects him on occasion.)

The speech this courageous young man made, while stuttering here and there, was an uplifting tribute both to him and to the compassionate leader who took a few minutes to talk with him and asked his father if it was OK to get his phone number. (Biden said he’s in touch with about 20 kids who stutter.)

That’s just a flavor of the heartwarming, distinctly real, distinctly American, and–ironically–distinctly apolitical feel of this convention. And it’s mind-stretching to think that the people who created it all and meshed and paced diverse people and videos so well had to put something together that had never been done before. Their success bodes well, I felt, for the smoothness and professionalism that the Biden team would bring to the White House.

I had concluded quite a while ago that although Biden wasn’t my first choice, his experience as VP, successfully handling two pandemics (H1N1 and Ebola) and the near economic meltdown that Obama and he had to address as soon as they took office, made him uniquely qualified for the major problems our country now faces. 

When I researched my post about the women heads of state who’d had the greatest success in curbing the pandemic, it all came down to leadership. And leadership meant listening carefully to the scientists, acting promptly, speaking truthfully to their people, and expressing compassion for their plight.

I strongly believe the US would have been one of the world’s leaders, rather than among its worst failures, if Biden had been President when the virus struck.

So even if you hate politics, I fervently hope you won’t sit this one out. Voting should be a piece of cake; in the US today it’s more like a triathlon of mazes, hurdles, and stamina-defying long lines. The deliberate sabotage of postal service will require more workarounds. But part of the Trump effort is to persuade you that your vote won’t count. Many thousands of people are now at work to ensure that’s not the case. But we must do our part.

In other words, we’ll need every citizen who thinks this country is on the wrong track to make the determination to vote and stick to it. Right now, of course, you must check to see that you’re registered before your state’s deadline.

More than 550,000 mail-in ballots were not counted during the primaries. The reasons were lack of a signature, signature different from what was on record, or late arrival. Make sure if you vote by mail that none of those problems negates your vote—and talk to everyone you know who’s voting by mail to ensure they also do so properly. 

Here’s an NPR interview and article about those problems; it includes a state-by-state listing of the numbers of uncounted ballots. 

And here’s New York Times columnist Frank Bruni explaining that with all the structural and human-made problems, we’ll need a landslide just to ensure Biden wins.

My fellow blogger Joseph Urban, aka The Old Liberal, who taught government/civics for many years, has put together a valuable voters guide in the blog post below. It’s relatively brief, but full of useful information.

https://josephurban.wordpress.com/2020/08/16/how-to-vote/

Here’s a piece of it, including two important resources:

“The two links below are very helpful for locating information for this election. They can link you to info specific to your state. Keep in mind that a few states have different rules for each county. Find out well in advance. No excuses.

Don’t let them steal another one.”

https://www.usvotefoundation.org/vote/state-elections/state-voting-laws-requirements.htm

https://www.vote.org/early-voting-calendar/
 
NBC News also has a site, Plan Your Vote, with info about mail-in and early voting, answering such questions as whether COVID is a valid reason for mail-in ballots in states that didn’t originally allow them. And it tells you how to track your ballot to make sure it’s been accepted; that’s extremely important.

Your single vote has never been more essential than it is this year. Please do everything you can to make certain that it’s received and counted. Our democracy, indeed, our very lives, depend upon it.

Annie

These Are the Election Watchers Watching Us (Maybe)!

image
OSCE Members and Partners. Image courtesy of Wikimedia.commons.org.

Remember the good old days—say, 2015—when the World looked toward the US as a beacon of democracy?

Well, it seems that an international group designed to monitor elections is so troubled by what we’re doing in the good old USA that they’re sending people to keep an eye on us.

The Guardian reports that these designated poll watchers are from the Organization for Security and Cooperation in Europe (OSCE)—specifically, its democracy and human rights arm.

It seems American exceptionalism has been redefined…

OSCE, with 57 member states, actually began scrutinizing us in 2000, when Bush v Gore was settled by the Supreme Court. But they really sprang into action in 2016.

And this year, after spending one week on a needs assessment, the organization’s Office for Democratic Institutions and Human Rights (ODIHR) reported great concern about the problems US election officials will face in November and their ability to overcome them.

Now here’s the strange part: The ODIHR needs assessment  states that it was undertaken at the invitation of the US Mission to the OSCE (!).

I think this bit of information should remain in the strictest confidence between you and me. I strongly suspect that if the word gets out to the Trump administration that some of its officials think a close look at the integrity of our elections is necessary by Europeans, no less (not, say Russians or other reliably friendly folk), heads will (figuratively) roll.

(In fact, to my amazement, the “Annex” to the report includes  names of US individuals from the Departments of State, Justice, Defense, Homeland Security, the FBI, Federal Elections Commission, Federal Communications Commission, House of Representatives, both the Democratic and Republican National Committees, and a slew of other representatives of diverse organizations. Nobody from the White House, however. Shhhhh!)

The NAM (Needs Assessment Mission) members spoke with these US officials and experts, and apparently enough of them expressed their fear that problems with voting might affect trust in the administration of the election, which could translate into harm for the proceedings and create doubt about the outcome.

As a result, the ODIHR wrote:

“Most ODIHR NAM interlocutors opined that, in an atmosphere of increased polarization, accusations from all political sides on potential voter fraud and  mistrust in the election process and results, the presence of external observers to assess the process will be highly valuable, adding an important layer of transparency.”

And that was before mailboxes were being removed from street corners and carried away on trucks. Hmmmmm….

Most of the American officials and experts welcomed the presence of the foreign observers. The plan is to have member states send 100 long-term observers “to follow the election countrywide,” and 400 short-term observers for election day.

But will they be permitted to enter the US in the midst of the pandemic?

Knowing about this potential international presence is both comforting and terribly sad, don’t you think? Unfortunately, there’s no way to ensure the observers will even be allowed in the polling places. The states have discretion.

For some time, this group has been making recommendations to improve our elections, which have mostly been ignored, especially on the federal level. There’s that big gap in the Voting Rights Act due to the 2017 Supreme Court ruling; legislation passed in the House to correct it and end discriminatory practices against minority voters has been stalled since 2019.

There’s also attention to ensuring the vote for former felons, an issue that’s seen some improvement in several states. But in another area, gerrymandering, change has been minimal, as have calls for independent entities to draw district boundaries according to voter equity.

And, of course, there’s major concern that the pandemic will mean a shortage of poll watchers, and that the post office won’t be able to handle the additional mail-in ballots.

That was even before President Trump announced his determination to deliberately hamper the mail-in voting that he fears will oust him from office, assisted by his big-donor appointee, ironically named DeJoy,  who knows nothing about running a post office or the post office’s Constitutionally protected role. He also had (and may still have) competing financial interests when he was appointed.

I’d say that’s now Concern #1: a clear Constitutional threat to the bedrock of our democracy, a clearly impeachable act for which the President will not be impeached.

But it’s nice to know our allies are still with us, trying to make us live up to the ideals for which they used to admire us—and which we seem in danger of losing with each passing day.

I read this report, which holds up the mirror to us even though our descent has been so terribly obvious to most Americans, too soon after the euphoria of the Biden-Harris appearances and the hope they inspire.

As I don’t want to end this post on a sour note, I’ve inserted a short, happy video that just happens to have come from across the pond.

Here is a totally non-election look at a Zoom professional meeting in which British sportscaster Andrew Cotter holds a brief evaluation with two of his “employees.” Make sure your sound is up high enough to hear Cotter’s concluding words.

And thanks, once again, to my dear friend Fran, for bringing me this bit of fun. I hope you’ll enjoy it—even if you’ve seen it before.

Annie

Continue reading “These Are the Election Watchers Watching Us (Maybe)!”