How to undo legislative gerrymandering?

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It’s not an accident that Democrats won a majority of votes for state assemblies in Michigan, North Carolina and Wisconsin, but Republicans won a majority of the legislative seats.

It’s because legislative districts were intentionally drawn by Republican state legislatures to give Republicans an advantage.  You can comply with the Supreme Court’s “one man, one vote” ruling and create legislative districts with equal population, and still draw the lines so as to give one party an advantage.

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Both parties have done this through American history.  The word “gerrymander” comes from Governor Elbridge Gerry of Massachusetts, whose party, the Democratic-Republicans (forerunner of today’s Democrats), drew up a strangely-shaped state senate district in 1812 to dilute the voters of the rival Federalists.

But Republicans during the last round of redistricting after the 2010 census used big data and computer analysis to lock in their control of legislatures in key states.  Democrats would have to do much more than win a majority of the votes to take back control.

They complained to the Supreme Court, but the Supreme Court turned them down, in a 5-4 decision.  Chief Justice John Roberts said the court can’t take up the burden of drawing legislative district boundaries for the states.

But Justice Elena Kagan pointed out that there is an accepted procedure for doing just this.  It consists of having a computer process draw up many different maps of legislative districts of equal population that are geographically compact and respectful of existing boundaries, and then allowing the state legislature to choose one of them.

If the state and federal courts do not do something about gerrymandering, who will?  State legislatures elected in gerrymandered district are unlikely to change the system that put them in power.  Congress? State legislatures draw congressional district boundaries, too.

But the fact is that the Supreme Court is not going to change its decision until and unless a new justice is appointed and maybe not even then.

What remains for Democrats is to try to get a large enough vote to offset a rigged system.  Or propose amendments to state constitutions to set up a fair process for drawing legislative districts.

LINK

Chief Justice Roberts OKs Minority Rule by Doug Muder for The Weekly Sift.  Hat tip to him for the chart.

How to de-partisanize the Supreme Court

Nowadays appointments to the Supreme Court are a continuation of partisan politics by other means.

The major political issues of our time are fought out in lawsuits as much as they are in legislative debates or elections.   Maybe this was always true, but it seems to me that stacking the court is being done with much more awareness nowadays than in recent memory.

Self-described liberals do it.  Self-described conservatives do it.  Partisan judicial appointments have several bad effects.

It often happens that several Supreme Court justices reach retirement age during one Presidential term.  It means that President has a greater power than others to stamp his political ideas on the judicial system.

It gives a President an incentive to appoint relatively younger and less experienced judges to the Supreme Court because they will serve longer.  It gives aging and infirm justices an incentive to keep themselves on the bench until a President of their own political faction is appointed.

I propose the following Constitutional amendment to achieve a better political balance on the court.

Each President would have the power to make one, but no more than one, Supreme Court appointment during each two-year term of Congress, with the consent of the Senate.

The new Justice would be sworn in at the end of that term of Congress.

If there were no vacancies on the court, the sitting Justice who’d served the longest would retire.  

If there were more than one vacancy, the additional vacancies would be filled during the next term or terms of Congress.

What this would mean that each President and each Congress would have equal power to make a Supreme Court appointment once every two years.

This would not mean an end of partisanship, but it would mean a better balance.  It would mean that change in the makeup of the Supreme Court would take place over a long period of time and not all at once.

A Mitch McConnell might be able to stymie Supreme Court appointments during one term, but would not get power to make extra appointments during the next term.

The normal term of office of a Supreme Court justice would be 18 years.  That’s a reasonable length of time, but most Justices would be able to retire while in good mental and physical condition.

The fact that vacancies on the court would not always be filled promptly would be inconvenient. but the court has sat with fewer than nine Justices inn the past.

I don’t think there is any chance of such a proposal being adopted at the present time.  But if and when the two parties decide to call a truce, this would be a way to implement it.

The right wing’s winning long-term strategy

Source: It Bends Toward Justice

Appointment of Brett Kavanaugh to the Supreme Court is part of a disciplined long-term strategy by the American right wing to lock in its power for generations to come.

It means the rest of the corporate Republican power play—gerrymandering, voter suppression and virtually unlimited campaign spending—is unrepealable.

The Supreme Court has become a House of Lords—a legislature of last resort.  During my lifetime, it abolished school segregation, legalized abortion, legalized gay marriage, blocked campaign finance reform, and reshaped Obamacare.  It has a potential veto power over virtually anything Congress might do.

Progressive and Democratic leaders have no long-term strategy of their own for the Supreme Court or anything else.  Instead they merely react to events, often in ways that are obviously futile—asking the Electoral College to overturn the results of the 2016 election, hoping Russiagate will drive President Trump from office, planning to impeach Kavanaugh in the future.

Even if the Democratic leaders got a strategy and stuck to it, it could take 10 or 20 years or more to undo what the right-wing corporatist movement has accomplished.  It took decades for the corporate right to bring the United States to where it is today, and changing things back will not be done overnight—if ever.

∞∞∞

You could say there is “a vast right-wing conspiracy” except that it is not secret.  It has always been out in the open for anyone to see, if they care to look.  I wrote about this at length in a previous post.

The strategic corporate movement began with the Lewis Powell memo to the U.S. Chamber of Commerce, in which the future Supreme Court justice argued that American business had to act strategically to protect its own position in society.

The result was the creation of a media, research and lobbying infrastructure, such Fox News, the Heritage Foundation and the American Legislative Exchange Council, which was tightly integrated with the corporate wing of the Republican Party.  The Federalist Society, founded in 1982, grooms reliably pro-corporate lawyers for judicial appointments.

It is true that there are many institutions with a built-in left-wing bias.  But the bias is unconscious and not a party line based on a planned, coordinated strategy.

The corporate movement crossed an ethical line with the REDMAP campaign.  In a targeted campaign, they gained control of both houses of 25 state legislatures in 2010, and proceeded to re-draw their congressional and state legislative districts so as to lock in a Republican majority.

At the same time they enacted laws making it more difficult for racial minorities to vote and canceling voter registrations, mainly of racial minorities, for bogus reasons.  The main obstacle to this strategy was the federal courts, which overruled the more obvious attempts to rig elections and disenfranchise voters.

Mitch McConnell (AP)

Mitch McConnell, the Senate Republican leader since 2007, has removed this obstacle by his partisan and successful effort to give stack the judiciary in favor of the Republicans.

He made it his priority to hold up appointments to the federal bench when Barack Obama was President  and then to push through appointments after Donald Trump took office.

When the Republicans were out of power, they took advantage of the “blue slip” tradition, whereby Senators have the right to block a judicial appointment in their states.

They used procedural rules to slow down President Obama’s judicial appointments, creating a backlog of vacancies.

During the last year of the Obama administration, McConnell simply refused to permit consideration of Obama’s appointment of Merrick Garland, a moderately conservative but non-partisan judge.  There is no basis for such a refusal except partisanship.  It is an example of politics as a moral equivalent of war.

Now that Donald Trump is in the White House, judicial appointments go through quickly, and “blue slips” are a thing of the past.  Thanks to McConnell, the corporate movement has achieved its goal.

Why Kavanaugh should not be confirmed

Brett Kavanaugh

Brett Kavanaugh is a political hack who should not have received the Court of Appeals appointment he has, and should have been rejected by the Senate committee as a nominee for Supreme Court without calling Christine Blasey Ford to testify,

He got his start helping special prosecutor Ken Starr investigate Bill Clinton, was part of the legal team that challenged the voter recount in Florida in 2000 and then worked for White House Special Counsel Alberto Gonzalez in the George W. Bush administration.

There are questions as to whether he was involved in discussions of warrantless surveillance, warrantless detentions and torture, and George W. Bush’s sweeping assertions of presidential authority in signing statements. Kavanaugh has said these issues weren’t part of his job, while the Trump administration has held back on releasing the documentary record of Kavanaugh’s service.

What Kavanaugh thinks about these questions goes to the heart of his understanding of the Constitution and the rule of law.  At the very least, he should be questioned closely about what he thinks about these issues.

As for Dr. Ford’s allegations, I’ve not followed the committee hearings closely, but it seems to me that she is telling the truth she says that at age 15, she was in a room with Kavanaugh, he grabbed her and she thought he was trying to rape her.  She was traumatized by something.

We’ll probably never know that Kavanaugh thought he doing.  He may not remember himself.  All we do know is that he has not been frank about what happened.

Should this, in and of itself, be a disqualification for serving on the Supreme Court?

This is not a case like Ted Kennedy after Chappaquiddick, Bill Clinton in 1992 or Donald Trump in 2016, in which supporters of a candidate had to choose between overlooking reprehensible conduct or letting the bad side (as they saw it) win.

The position could be filled by one of many right-wing judges who’ve never been credibly accused of sexually abusing women.

The Trump administration has nothing to lose by withdrawing Kavanaugh’s name and proposing another conservative.  Kavanaugh’s life will not be ruined.  He’ll remain in his plum job as Court of Appeals judge.

Could the Supreme Court be un-packed?

The death of Justice Antonin Scalia has left the U.S. Supreme Court with an even number of justices.  If they divide four-four on any case, the decision of the lower court stands, but it does not become settled law.

As things stand now, a divided court would not be the worst thing from the standpoint of liberals.  They mostly like existing precedents and mostly oppose have them overturned.

My friend Bill Elwell wonders what would happen if President Obama or President Hillary Clinton simply refused to nominate someone to fill a Supreme Court vacancy.

Franklin D. Roosevelt failed to pack the Supreme Court with nominees of his liking.  Bill asks: Would this be un-packing the Court?.

I don’t see how this would be any different, or any more obstructive, than Senate Majority Leader Mitch McConnell saying that Republicans will automatically reject any Obama nominee, no matter who the person is.

Article II, Section 2 of the Constitution grants the President the power to appoint Supreme Court justices, with the advice and consent of the Senate, but I find no wording requiring him to do so in a timely manner.

President Obama has already said that he intends to nominate someone to fill Scalia’s vacancy, but does he have a responsibility to nominate a second person or a third if the Senate rejects his first nominee?  Of course this is a moot question if the Republicans are going to reject any nominee.

Thoughts on marriage and gay marriage

The last statement was on June  24, 2015 (not August)

Hat tip to Tiffany’s Non-Blog.

There are lessons in this chart for people who advocate social change, and that is to never think that electing a particular politician is enough, and especially to never settle for the lesser of two evils.

I respect the gay rights movement for pressing relentlessly for social change and especially for withholding support for politicians who do not support their agenda.

The labor movement can learn from this.  Of course the gay rights movement had an easier task because its goals do not threaten any powerful monied interests.

Does the Constitution protect corruption?

The Supreme Court ruled in the Citizens United case that campaign contributions are a form of free speech protected by the First Amendment.   On April 2, the Supreme Court ruled, in McCutcheon vs. Federal Election Commission, that Congress does have the right to legislate against corruption in campaign financing, but, as Jill Lepore pointed out in an article in The New Yorker, only against certain forms of corruption.

Chief Justice John Roberts wrote the opinion for the five-to-four majority. “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute,” he began. 

Congress may not “regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”  But there is “one legitimate governmental interest for restricting campaign finances,” he explained: “preventing corruption or the appearance of corruption.”

That said, the Court’s understanding of corruption is very narrow, Roberts explained, echoing a view expressed by Justice Anthony Kennedy in McConnell v. F.E.C., in 2003: “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.”

Quid pro quo is when an elected official does something like accepting fifteen thousand dollars in cash in exchange for supporting another politician’s bid to run for mayor of New York.  The only kind of corruption that federal law is allowed to prohibit is out-and-out bribery.  The kind of political prostitution that the Moreland Commission was in the middle of attempting to document—elected officials representing the interests not of their constituents but of their largest contributors—does not constitute, in the view of the Supreme Court, either corruption or the appearance of corruption.

via Zephyr Teachout’s Anti-Corruption Campaign.

The Moreland Commission to Investigate Public Corruption was appointed by Gov. Andrew Cuomo in April, 2013, to investigate corruption in New York state.

The commission was given 18 months to do its work, but in March of this year, Gov. Cuomo shut it down.  He said it was supposed to investigate the legislative branch, not the executive branch.

In the meantime, the commission made a series of preliminary recommendations, including closing loopholes regarding limited liability laws, mandating disclosure of outside spending, instituting public finance and creating an independent election-law enforcement agency.

As Lepore noted, these recommendations, except maybe for public campaign financing, would have had little effect in the light of Citizens United and McCutcheon.

 Zephyr Teachout, who opposes Gov. Cuomo in the coming Democratic primary, is a law professor who says the Supreme Court’s decision is contrary to the intention of the authors of the Constitution.  Even if she’s right, this doesn’t change anything.

Maybe it is necessary to amend the Constitution, as was done after the Supreme Court ruled that slavery was protected by the Constitution and later when the Supreme Court ruled that a federal income tax was unconstitutional.

The logic of being required to pay union dues

At first glance, it seems wrong to require people who don’t believe in labor unions to pay union dues just to be able to work for an employer with a union contract.   Here’s how I see the logic.

Should workers have the right to bargain collectively and make contracts with employers?  Under U.S. law, workers have that right.  It would be absurd to say that investors have the right to join together to form corporations, but workers do not have the right to join together to form unions.

If there is a union contract, should the union have the power to say who is hired and who isn’t?  Under U.S. law, unions do not have that right.   If they did, they would, in effect, be the employer.

Should everyone who is hired by a union employer be covered by the union contract?  Under U.S. law, they are.  If not, the contract would be meaningless.

Should someone who gets the benefit of a union contract pay the same dues as fellow employees for union representation.  I would say, “yes,” but yesterday the U.S. Supreme Court said “no,” at least as regards home care workers and public employee unions.

LINKS

Supreme Court rules against home care workers unions by Laura Clawson for Daily Kos.

Supreme Court: It Could Have Been Worse by David Cole for the New York Review of Books.

Alito and the expected pretzel on Psychopolitik.

Six Groups That Are Reinventing Organized Labor by Josh Israel for Think Progress.   In the light of recent Supreme Court decisions restricting labor and empowering business, some worker groups are organizing without the protections and restrictions of U.S. labor law.

Are you a terrorist? Are you sure?

I guess the hallmark of an old guy is talking about how different things are now from the way I remember.  When I was growing up, I was taught that under American freedom and democracy, everybody had a right to a fair trial and a legal defense.  In Western movies, the heroic sheriff stood between the outlaws in the jail and the lynch mob outside. Everybody had a right to a defense – no matter what they were accused of or who they were.

Fast forward 60 years.  The Obama administration asserts the right to lock up anybody they say is a terrorist and deny them a trial, to assassinate anybody they say is a terrorist, and, in a pending case, to make it a crime to render “material aid” by filing an amicus legal brief or appealing to an international court on behalf of someone they say is a terrorist.

But that’s all right, you say.  The power is only going to be used against scary Muslim foreigners.  It never will be used against people like you and me.

Are you sure?  Think of everybody you know of who has been mentioned as a possible candidate for President. Are you absolutely certain that not one of them would ever use this power against political opponents?

Are you a supporter of the Right to Life movement?  Extremists in this movement have committed murder, arson and other crimes.  No doubt you disapprove.   Are you absolutely sure that no future President would define you and your movement as terroristic? Or the Tea Party movement? Or the Animal Rights movement? Or “cults” or “militias”?

Or are you like me – someone who thinks there is much more danger in trusting an individual with absolute power than in any outside threat?

The Constitution even before there was a Bill of Rights established the right of habeas corpus (the right of an arrested person to be told what law they were accused of breaking) and forbid bills of attainder (criminalizing individuals or groups based on who they are rather than what laws they have broken) and ex post facto laws (criminalizing an action after the fact).  There is a habeas corpus exception for “when in cases of war and rebellion the public safety may require it,” but this was intended for dire emergencies.  There is no reason to wipe this off the blackboard now.

P.S.  I am not of course accusing Right to Lifers, Tea Party members, animal rights supporters, cult members or militia members of being terrorists, nor on the other hand aligning myself with any of these groups. I am speculating about how guilt-by-association might play out under a paranoid government without checks and balances.

P.P.S. I am not a conspiracy theorist like  these guys, whom I consider to be part of the problem, not part of the answer. What bothers me is not what is supposedly being plotted in secret, but what has come to be accepted as normal. What we have to fear is fear itself.