Thursday, January 19, 2017

Why Did Summer Zervos Sue Trump in State Court?

by Michael Dorf

Summer Zervos, onetime contestant on The Apprentice, has sued Donald Trump for defamation based on statements that Trump made calling Zervos a liar after Zervos went public with allegations that Trump had groped her much in the manner of his boasting to Billy Bush in the infamous Access Hollywood recording. The complaint is available here. It is juicy reading.

1) The complaint is clearly aimed not only at the court but at the public, containing details that are not directly relevant to the establishment of Trump's liability for defamation but nonetheless aim to expose negative aspects of his character. For example, Zervos avers that Trump "complained about the price" of the room service club sandwich and fries that he and Zervos shared in the room where Zervos expected to be mentored but, the complaint alleges, she was first groped. Complaining about the price of a sandwich is not at all relevant to the legal issues in the case. However, it does tend to show that despite being very wealthy, Trump is a petty cheapskate.

Another irrelevant detail of the complaint describes Trump's financial advice to Zervos. Here is paragraph 33 of the complaint:
The conversation focused on Ms. Zervos’s mortgage on her home. Ms. Zervos told Mr. Trump that her mortgage was in good standing. Mr. Trump told her to let her mortgage go into default and then tell the bank that they could take back her home. He told her to tell the bank that she would be leaving the keys to her home on the table, and the bank could come pick them up. He said that it was a mini-version of what he does. He was emphatic that Ms. Zervos should not make another payment on her loan.
Again, there's no connection between this exchange and Trump's allegedly defamatory statements. They appear to be in the complaint simply to remind the public that Trump's modus operandi is not to pay his bills and that he doesn't even realize this is dishonorable behavior.

Is it a problem that the complaint contains material that is not, strictly speaking, relevant to the legal claims being alleged? Not really. Good complaint writers--especially in high-profile cases--understand that the complaint has multiple audiences, including the press and the public. So long as the factual allegations of the complaint mostly tell the story that forms the basis for the legal claims, courts will allow some leeway to include additional narrative details.

2) Wait. Can the president be sued? Probably. Nixon v. Fitzgerald held that a president has absolute immunity from civil liability for acts taken in his official capacity, but that immunity does not extend to private conduct before he became president.  Thus, in Clinton v. Jones, the Supreme Court held that there is no temporary (much less permanent) immunity of a president for such conduct. However, Jones was litigated in federal court, thus raising concerns of separation of powers. The majority opinion of Justice Stevens left open the possibility that litigation in state court might give rise to a different result, because such litigation would present issues of federalism and comity. A footnote (number 13) indicated that the Supremacy Clause might also play a role in determining whether the president has immunity to state court civil litigation.

Accordingly, it is open to Trump's lawyers to argue that notwithstanding Clinton v. Jones, the state court lawsuit of Zervos is barred by some as-yet unannounced immunity.

3) That possibility in turn raises the question why Zervos chose to sue in state court where there is at least a chance that Trump could have some immunity as president, rather than suing in federal court where he certainly would lack any such immunity under the rule of Jones. Zervos could have sued in federal court because she is a resident of California while Trump is a resident of New York. However, because she chose not to sue in federal court, the case will remain in state court even if, for some reason, Trump wants the case in federal court. Under the federal removal statute, a case that could have been brought in federal court can be removed to federal court, but not where the basis for federal jurisdiction would be diversity of citizenship and the defendant is sued in his home state, as Trump was. Federal law also allows removal by federal officers sued in state court, but only where the lawsuit is based on the performance of official duties.

Thus, having chosen to sue in state court, Zervos is probably stuck there. If Trump's lawyers succeed in obtaining a new state-court-only immunity based on footnote 13 of Jones, then presumably Zervos can re-file in federal court, assuming that the statute of limitations hasn't run or the initiation of state court litigation is deemed to toll it.

4) Given the seemingly greater risk of proceeding in state court, why did Zervos do it? One possibility is the hope for a friendly jury, although a federal jury in the Southern District of New York would likely have been friendly to a plaintiff suing Trump as well.* The substantive law to be applied in state court is the same as would apply in federal court, so that can't be a reason. Finally, my research into New York law and federal law in the Second Circuit reveals more or less the same standard for what could be the biggest impact of the case: financial disclosure. Zervos has alleged punitive damages. In assessing punitive damages, the defendant's net worth is relevant (because a larger fine is necessary to inflict the same amount of punishment on a wealthier defendant than on a poorer one). Thus, if Zervos succeeds in establishing a right to punitive damages, she could in theory, gain access to Trump's financial records or even his tax returns. However, both New York law and federal law erect a pretty high standard for such access--a requirement that the information not be obtainable from some other source. Thus, I count as pretty low the likelihood that the Zervos lawsuit leads to public disclosure of Trump's tax returns or other substantial details of his finances.

5) Just before the election, I suggested that the alleged Trump gropees might bring a class-action lawsuit against him for defamation and that if so, their claims would be mutually reinforcing. But even proceeding solo, Zervos has a good chance of winning if the case goes to trial. She will likely be a credible witness. Plus, she can call as additional witnesses those people (including her father) whom she told about the groping when it occurred under the hearsay exception that allows prior consistent statements into evidence to rebut a charge of recent fabrication. Although that exception is typically triggered by the suggestion of recent fabrication during cross-examination, it also should apply in a defamation case where the defendant's allegedly defamatory statement consists of stating that the plaintiff recently fabricated her claims about the defendant's past conduct.

* * *

Bottom Line: Unless the lawyers for Zervos know something I don't (which I freely admit is possible), filing in state rather than federal court looks like a strategic blunder, given the risk posed by the opening left in Clinton v. Jones. I do not see any great benefits of proceeding in state court sufficient to overcome that risk. Having said that, the lawsuit also poses very substantial risks for Trump. If Zervos is willing to accept a settlement without admission of liability and with a gag order on the amount, Trump's lawyers would be wise to offer her one. Of course, this could be just the first of a dozen similar suits, so that approach could prove expensive. But hey, no one ever became president in order to make money, right? Oh, right.

* Update: In a Facebook comment, one reader noted that the SDNY and the New York County (i.e., Manhattan) jury pools are not co-extensive. The former comprises Manhattan, the Bronx, Westchester, Putnam, Orange, Rockland, and Sullivan counties. I was aware of that, which is why I said in the original post that the SDNY jury would likely be plaintiff-friendly, even if not necessarily as plaintiff-friendly as the state jury pool. The non-NYC components of the SDNY jury pool are small compared with Manhattan and the Bronx. And Westchester, which is the largest of the non-NYC counties in the SDNY, went 2-1 against Trump.  Thus, to my mind, the small advantage in jury pool doesn't justify the risk of an immunity ruling or even the delay that an effort by Trump to assert an immunity defense could occasion.

Wednesday, January 18, 2017

Religious Freedom and Hard Cases in the 4-4 Court

by Eric Segall
About a month before Justice Scalia passed away last February, the Supreme Court voted to hear an important case raising fundamental questions about the separation (or not) of church and state. The Missouri Constitution prohibits any and all public money going to religious institutions. A church school challenged this categorical exclusion when denied an opportunity to compete for state money to improve the safety of school playgrounds. The lower court upheld the exclusion, which exists in one form or another in many other states. The case is so difficult because, while all the Justices likely agree that state aid cannot go to core religious instruction, and while all the Justices also likely agree that police and fire protection cannot be denied to churches, temples and mosques simply because of their religiosity, this case falls right in the middle of those extremes. 

Although the Court took the case over a year ago, it has yet to schedule oral argument, presumably because the Justices are likely deadlocked on the difficult issues. I fully understand that deadlock. On the one hand, denying all but the most basic public aid to religious institutions feels harsh and discriminatory. In fact, this specific Missouri law enacted towards the end of the 19th century had its origins in anti-Catholic prejudice.

On the other hand, defenders of the Missouri law, and others like it, argue that allowing churches, temples and mosques to compete for public money against each other, and against non-religious institutions, could cause significant religious strife leading to potential violations of the First Amendment's Establishment Clause or its stricter parallel state constitutional provision. In addition, these statutes have a long history and for those concerned about the role of tradition in constitutional interpretation, the invalidation of such laws would amount to overly aggressive judicial review. The most relevant Supreme Court precedent, Locke v Davey, upheld a similar program in which the State of Washington prohibited generally available scholarship money to be awarded to students studying to be ministers. Yet, not using public money for the education of religious officials feels much different than the categorical exclusion of all religious institutions from any but the most needed public aid.

So this case is truly hard, and I express no opinion about its proper outcome. My purpose in writing this blog post is to suggest that the country as a whole is better off with the Court not deciding the case at all, which would likely be the result if the Court were to stay evenly divided among partisan lines.

Had the case been decided while Justice Scalia was still alive, there is every reason to think the Court would have struck down the law 5-4 (assuming Justice Kennedy would have voted that way). Had Merrick Garland been confirmed, the smart money would have been on the Court upholding the law. Now, with Trump getting the next pick, the odds are the Court will strike the law down if the case is not moot (there is talk Missouri may not enforce this law anymore). In other words, who is the ninth Justice likely makes all the difference in this case.

Leaving aside one's view on how the controversy should be resolved, is the country better off with the case being decided 5-4 in one direction or the other or better off with the potentially different rules in different circuits where court of appeals judges will also likely divide on this difficult question? My argument is that this case is so close and the need for uniformity so weak, that there is much to gain by recognizing that the Justices should not make national policy on these type of hard issues by a 5-4 vote along partisan lines.

People may prefer one result or another in this case but few would argue the result is obvious from text, history or precedent. How each Justice, or lower court judge, votes would likely depend more on their own personal views on the proper relationship between church and state than legal analysis. That being the case, isn't it fair to ask why we need a national rule preempting state decisions on this difficult matter? If Missouri wants to adhere to strict separation of church and state while other states do not want that separation, the justification for federal intervention seems small. Of course, court of appeals judges may decide to strike down such laws but at least those judges are regional decision-makers not national decision-makers, and they are generally much more versed in local law, values, and context than the Justices who spend their entire working lives in the nation's Capitol.

If the Court intervenes in these kinds of cases by a 5-3 vote, which on the present Court would mean by definition a non-partisan vote, that result seems just a bit less incongruous. For that to occur, at least one Republican would have to vote with the Democrats or vice-versa, which suggests the decision isn't completely partisan. Moreover, 5-4 decisions along partisan lines are much more vulnerable to critique and later overruling than decisions where one or more Justices apparently abandons his partisan principles to reach a favored result.

Of course many folks would likely argue that this analysis applies equally to issues like same-sex marriage, free speech, and abortion where five-to-four majorities have displaced state and federal decisions even though the governing law is much less than crystal clear, My response is exactly right. National policy on fundamental questions that divide us a country and which are not resolved by clear constitutional text or paradigm cases should not be made by a bare majority of unelected, life-tenured judges unless there is a need for uniformity for uniformity's sake. But those cases are rare.

Whether one is liberal, conservative, or somewhere in between, we are all better off if the power to strike down state and federal laws is dispersed among hundreds of lower court judges who are geographically and politically much more diverse than our nine national Justices. If a national rule is desperately needed, the Justices, through compromise and bipatisanship, will find a away. If not, we should insist on more than a one-person majority before important political decisions are reversed by our highest legal tribunal.

Tuesday, January 17, 2017

A Possible Contradiction in Liberals' Concerns About Corruption?

by Neil H. Buchanan

Which is it?  Do rich people respond to incentives to get richer, or do they reach the point where enough is enough and other goals take precedence?  Does it matter?

I raised this issue briefly at the beginning of my most recent column, referring to Trump's cabinet of billionaires.  In defense of Senate Republicans' efforts to rush through confirmation votes without carrying out the legally required vetting for conflicts of interest, the Trump team's response is that these people could not possibly be subject to any temptation to abuse their positions.  They're rich already!

My purpose in that column was to point out a number of Republican hypocrisies, with my final point being that conservatives love to say that people should be held personally responsible for their actions and that "feelings" are irrelevant -- unless and until it is convenient for Republicans to say the opposite.  The point about rich people's satiation was merely the first step along the way to making that broader point.

Here, however, I want to explore on its own merits the question of whether financial incentives are still relevant to the super-rich.  As I noted, Paul Krugman had responded to Trump's argument by pointing out that it is completely inconsistent with Republicans' core belief that tax cuts for the rich are the key to economic nirvana.  They cannot have it both ways, Krugman (and I) said.

Even though the Republican position on Trump's cabinet nominees truly is in tension with their views on tax incentives, it is possible that the liberal positions are symmetrically hypocritical.  After all, one could respond to Krugman: "Well, you're also opportunistically contradicting yourself.  You oppose tax cuts for the rich but worry about corruption by Trump's appointees.  It's still a contradiction."

As plausible and evenhanded as that sounds, however, it in fact turns out that the liberal positions on those two issues are not in conflict.  In order to understand why, we have to dive a bit into some economics and psychology.

One of the most well established empirical findings in economics is that the estate tax does not have negative impacts on people's incentives to accumulate wealth.  Although Republicans love to complain about how the estate tax forces hard-working families to break up and sell the family farm or small business, there is still not a single example of that happening anywhere.

This finding is inconvenient for Republicans, because they view it as such a powerful political message.  Even if no family farms or businesses are being broken up, however, there is still the question of whether people change their behavior in response to the estate tax.

Conservatives certainly want to believe that they do, because it fits so neatly into their simple world view in which everyone responds to incentives in the same way.  If a person knows that the estate tax will reduce the amount of money that she will pass onto her heirs, then the conservative presumption is that she will not bother to build up her estate.

This basic conviction -- that if you tax something you will discourage people from doing it -- is baked into conservative economic beliefs.  One high-profile conservative economist once told me that he was fully aware of the empirical failure to find a disincentive effect of the estate tax, but he then said, "I just don't believe it.  There simply must be a negative effect."  If reality and theory are in conflict, so much for reality.

Of course, there are perfectly standard explanations for why rich people do not respond to the estate tax in the way that conservatives hypothesize.  One is that they are simply using the size of their estate to keep personal score of their success, so that they continue to build up their estates even though they know that some of it will not reach their heirs.

Another possible reason is that people might be trying to reach a particular goal, a dollar amount for an estate that the decedent-to-be views as large enough to fulfill her obligations to her family.  If that is true, then an increase in the estate tax would encourage a wealthy person to work harder, not to back off.  (Some readers might recognize this as the "income effect" dominating the "substitution effect.")

And because the aggregate finding is that the estate tax neither encourages nor discourages wealthy people in their pursuit of more riches, the most likely explanation is that some people respond in one direction while other people respond in the other direction, with the net result being a wash.

This also seems to happen with taxes in other areas.  For example, even though conservatives want to believe that the income tax is bad because it supposedly discourages people from earning income, there is a robust body of literature showing that the typical income earner does not respond to tax changes.  (The exception is that so-called secondary earners in households do seem to stay home when taxes go up.  However, fewer and fewer families have primary and secondary earners, with both spouses' incomes being necessary to maintain their lifestyle.)

Over time, more and more economists have come to accept the fact that the usual Republican line against taxes is simply not passing the reality test.  Neither high-end tax cuts (whether to the estate tax or to the income taxes that wealthy people pay) nor across-the-board tax cuts have the desired effect of encouraging a burst of entrepreneurship.  One result of that reality is that the Laffer Curve is very much dead.

The bottom line on all of this economic research is that the conservative case for tax cuts, especially regressive cuts (that is, those aimed at the rich), falls apart.  Tax cuts do not lead to increases in potential output (a supply-side effect), and they do not lead to increases in revenues.  (See especially Kansas's recent experiences.)

That is not to say that tax cuts of some types cannot be justified for other reasons.  For example, in the face of a recession, a package of tax cuts aimed at lower- and middle-income earners is likely to have a good demand-side impact, because such earners are likely to spend their tax cuts on necessities and pump up the economy.  (Direct spending by government is even more effective, but usually a combination of spending and progressive tax cuts will make a lot of sense.)

Where does this leave us with respect to the other side of the potential contradiction?  That is, if liberals follow the economic evidence and conclude that rich people as a group do not respond to tax cuts to amp up their supposedly virtuous activities (the proverbial "job creators" idea), must we also accept the idea that rich people are uncorruptible?

The problem with that conclusion is that liberals would never say (and have no reason to say) that there are no rich people who are insatiable.  When setting economic policy through the tax code, what matters is the aggregate effect, taking everyone into account.  When looking at a potential public servant, however, what matters is whether that individual rich person will abuse his power.

Many wealthy individuals who serve in government really do seem not to be in it for the money.  Outgoing Secretary of State (and former U.S. Senator) John Kerry is wealthy beyond imagination (both on his own and through his wife's stake in the Heinz fortune), yet there is no indication that he has tried to use government service to enrich himself.

Similarly, although I disagree with Mitt Romney on many issues and did not support him in the 2012 presidential election, his high net worth seems to be enough to satisfy him.  In the past, wealthy men from both political parties (Teddy and Franklin Delano Roosevelt, the Kennedys, Nelson Rockefeller) showed no signs of trying to raid the public piggy bank or to use their positions to enhance their wealth even indirectly.

So far, so good.  The problem is that the potential is always there.  Every public official has the power to take actions that would make them or their associates richer, so much so that before Trump came along it was standard operating procedure for everyone to support anti-corruption laws, including conflict-of-interest provisions, in vetting government appointees.  Indeed, the Republicans insisted on this when President Obama's nominees came up for confirmation.

In short, there is no contradiction between the liberal positions on taxes and corruption.  It is fully consistent to say that even though tax cuts for the rich do not encourage more wealth-producing activity, some wealthy people might nonetheless abuse their government posts to further enrich themselves at the expense of the American people.

It is a measure of how abnormal things have become that there are people now claiming that we should simply trust rich people to do the right thing.

Monday, January 16, 2017

Does it Matter Whether Trump is a "Legitimate" President?

by Michael Dorf

In explaining his intention to absent himself from Trump's inauguration civil rights hero and Congressman John Lewis said that he did not regard Trump as a legitimate president. That statement inspired a typically childish and mendacious Twitter response from Trump. As noted in the story just linked, there is some debate among those who oppose Trump over whether his impending presidency will be illegitimate or merely despicable, with David Axelrod disagreeing with Lewis on the legitimacy question.

I don't have a strong view about this question, which strikes me as mostly a semantic debate about the meaning of the word "legitimate," rather than a substantive debate about anything that matters. We agree about the facts that, depending on one's definition, could call into question Trump's legitimacy: that he received 3 million fewer votes than Clinton; that he ran a campaign appealing to people's basest instincts; that he benefited from voter suppression efforts made more effective by the Supreme Court's gutting of the Voting Rights Act; that he benefited from highly questionable interventions by the FBI and the Russian government; and that it is possible, though not yet proven, that some people working in his campaign may have colluded with the Russian government. Any of these facts alone or in combination could call into question the legitimacy of Trump's election, if one defines a legitimate president as one who was chosen by the American people based on a free and fair election.

If the debate over the word legitimacy is semantic, there is nonetheless a genuine substantive disagreement about how to treat Trumpism. I can illustrate by reference to the nascent boycott of LL Bean over the support by one Bean board member--Linda Bean--for Trump and Trump's confusing her with the company as a whole. The company has tried to remain apolitical, emphasizing that its leadership, management, and employees hold a wide range of political views. That in turn has led some people who oppose Trump to oppose the boycott as poorly targeted. Why punish a more or less virtuous company that treats its workers well and supports American manufacturing based on the views of one of its board members?

A counter-argument (as expressed thoughtfully by a friend of mine on Facebook) goes like this: If one of the ten members of the LL Bean Board were a klansman, surely that would be a basis for boycotting the company (so long as the klansman remained on the board), and support for Trump should be treated as just as socially unacceptable as membership in the KKK.

I want to sidestep any discussion of whether Trump support actually is morally equivalent to support for the Klan. That's just an analogy. My friend's point was that a strategy of delegitimation needs to resist the tendency--inherent in Bean chairman Shawn Gorman's response to the controversy--to treat support for Trump as just like any other political opinion.

LL Bean is admittedly in a tough spot. Even if some members of its leadership team think that Trumpism should be deemed outside the bounds of acceptability, the fact that 46% of voters pulled the lever for Trump shows that Trumpism is not currently regarded that way. A company that aims to sell general-purpose merchandise cannot risk alienating 46% of the population.

Thus, if you think boycotting LL Bean unfairly punishes its workers or suppliers, don't boycott. If you think boycotting has no logical stopping point because just about every major company has some leaders with distasteful views or practices, don't boycott. And if you think that boycotting LL Bean would be ineffective in delegitimating Trump because it would be regarded by much of the general public--including many who do not support Trump--as an overreaction, then don't boycott.

However, I don't think it is an especially good use of time and energy to oppose the boycott of LL Bean either. Even if, like Axelrod, you think that Trump is a legitimate president under your definition of legitimacy, surely there are more pressing matters than arguing with those who, like Lewis, think otherwise. Likewise, there are more pressing matters than arguing about whether it's necessary to delegitimate Trump or merely to oppose him forcefully.

Put differently, statements to the effect that Trump lacks legitimacy and efforts to delegitimate Trump are inevitable, given the unruliness of social and political movements. Such efforts are also largely complementary with more narrow resistance to Trump on particulars. Both broad and narrow opposition to Trump, where successful, will undermine Trump's already historically low popularity. The less popular Trump is, the more emboldened politicians--especially Republican politicians--will become in standing up to him and frustrating his most awful ambitions.

Let's agree to disagree about whether Trump is merely horrible or illegitimate and about whether we merely need to oppose him or to delegitimate him. In general, there is a tendency of left-leaning movements to debate small internal differences while neglecting the real enemy. That tendency is self-indulgent at all times but completely unaffordable now.

Thursday, January 12, 2017

Personal Responsibility and the 2016 Election

by Neil H. Buchanan

Donald Trump has now made clear that he has no intention of eliminating his conflicts of interest -- saying, in essence, that he is keen to cash in on the "corruption premium."  Meanwhile, the rush by Senate Republicans to confirm Trump's cabinet nominees without adequate vetting continues on its shameless path.

Trump's apologists have come up with an amazing defense of this spectacle, which is that people like Trump and his cabinet of billionaires are too rich to be corrupt.  As Paul Krugman recently pointed out, this argument is completely at odds with the usual conservative line about how rich people think, amounting in fact to a repudiation of the logic of trickle-down economics.

Think back to any argument that you have heard against progressive taxation, whether it be higher taxes on business profits, taxes on large concentrations of wealth (especially the estate tax), or even the notion of having an income tax at all.  The core conservative retort is that we must not "kill the goose that lays the golden eggs."

That is, if we reduce the take-home rewards that rich people reap from engaging in their wealth-producing activities, they will supposedly stop producing wealth.  But if rich people apparently still pursue monetary rewards, why would they not pursue such rewards when given enormous political power without any effective ethical limits?

The hypocrisy is rank, and it has me once again thinking about other categories of hypocrisy that flow so readily from the right side of the aisle in American politics.  A few months ago, for example, in "Conservative Word Police," I described conservatives who deride liberals for so-called political correctness yet who are positively obsessed with policing people's word choices.  (Somehow, I failed to mention in that column conservatives' response to "black lives matter" -- "What, you're saying that only black lives matter?!")

Another form of hypocrisy has also recently made its way back into the political conversation.  In a recent op-ed in The New York Times, "Why Rural America Voted for Trump,"a liberal journalist from Iowa argued that rural Americans are mostly conservative Christians and that conservative Christians do not believe in weak-kneed liberal nonsense about root causes and all that.

The op-ed quoted former Republican congressman J.C. Watts, an Oklahoman who is now a born-again Baptist minister, who said in a political speech in Iowa in 2015: "The difference between Republicans and Democrats is that Republicans believe people are fundamentally bad, while Democrats see people as fundamentally good."

As the son of a Presbyterian minister, I did not quite see how these obviously caricatured views of human nature mapped onto political opinions.  Watts seemed to be saying that Democrats are either atheists or not true Christians, while Republicans and Christians are one and the same.

That is obviously wrong along a number of dimensions, but I soon understood the real point when Watts brought it home: "Democrats believe that we are born good, that we create God, not that he created us.  If we are our own God, as the Democrats say, then we need to look at something else to blame when things go wrong — not us."

And there it is, in all its illogical glory, the religious gloss on the personal responsibility meme.  Democrats supposedly get it wrong when they refuse to see that people are to blame for their own problems.  (They are apparently also wrong to think that rich people are corruptible by money.   Even though everyone is fundamentally bad, apparently some people are above reproach -- and not just those who have been born again.)

Helping the poor, according to this view, does not allow them to find their way to a better life.  It merely wastes the money of the good people.  Paul Ryan's embrace of dependency theory thus finds support from something other than Ayn Rand's novels.  Of course, the lack of empirical support for the predictions of dependency theory need not be acknowledged by Republicans like Watts or Ryan, because they simply know what is true.

More importantly for the current political moment, this theory has interesting implications for the claim that the key voters who gave Trump his victory need to be understood rather than criticized.

By now it has become the conventional wisdom among a large group of commentators on both the left and the right that Hillary Clinton's Electoral College loss in 2016 was a result of Democrats' failure to take the concerns of the white working class seriously enough.  This is the whole "identity politics" smear, in which we learn once again that all too many people are willing to say that a concern for civil and economic rights of marginalized people is a mere indulgence that Real Americans will not abide.

The implication of that theory is that liberals need to try to understand why people would vote against their own interests by voting for Trump.  The idea is apparently that good people can make bad decisions, so it is important not to say that these voters are racists (or racist-tolerant) or are in other ways blameworthy for being illogical or uninformed.

This argument came up in a slightly new form earlier this week when conservatives (and some liberals) criticized Meryl Streep's comments at the Golden Globe Awards show.  After pointing out how Trump and many conservatives revile artists, Streep talked about the importance of the arts to society, saying that without them there would be nothing left to entertain us but football and mixed martial arts.

The reactions were predictable and absurd.  I happened to be in an airport during one of CNN's painful panel discussions, so I could not change the channel.  There was a long discussion of a claim by John McCain's daughter (and Fox News contributor) Meghan McCain, who claimed that "[t]his Meryl Streep speech is why Trump won."

Although the younger McCain was rightly mocked for the odd time-traveling aspect of her assertion, let us give her the benefit of the doubt and say that she was calling out Hollywood liberals in general for being too willing to denigrate things that white working-class voters like.  Those voters simply feel disrespected, apparently, and this is meant to justify why they would vote for Trump.

Of course, if that is the point, then Streep's speech is a particularly bad example of the genre.  She was describing how important it is to have a full range of entertainment available, and the people with whom she works are particularly vulnerable to cultural crackdowns by bullies who dislike being confronted with differing views.  She did not say that football and martial arts are bad.  She said that a world where only those two forms of entertainment are available would be a rather empty world.  As a football fan, I agree.

Throughout the post-election discussion about the sensibilities of white working-class voters, I have been more than willing to say that it is important to reach the reachable Trump voters.  This includes respecting the idea that, contra Watts, people are not born good or bad or with certain political views, but rather that people with real economic insecurity can start to act in ways that they would not otherwise act.

That, in fact, is the common thread of all of the emerging proto- (and not so proto-) fascist movements around the world.  Scared people are willing to embrace extreme measures and to elevate extremist leaders who would otherwise find no audience.

What bothers me about that conversation, however, is that it tends to remove all agency -- free will, for lack of a better term -- from these voters' thoughts and actions.  In its extreme form, in fact, this argument brings to mind the complaint from conservatives about how liberals have coddled children into believing that they are all special.  Giving everyone awards for participation, and not keeping score at soccer games so that no one feels like a loser, is supposedly a big liberal plot to make us all weak.

I happen to find that argument unpersuasive (or at least wildly overblown), but there is more than a hint of just that kind of condescension in the post-election attempts to "understand" working-class voters.  Such voters were supposedly feeling disdained by Democrats, so they acted on those feelings by voting for Trump, who promised to throw out immigrants and bring back factory jobs.  Who can blame them for being willing to stick their collective thumbs in the eye of the dreaded establishment?  They were wrong, but at least they tried.

The problem is that it did not require any particular expertise, or even paying especially close attention to the news, to see that Trump is a con man.  He continually denied having said things that he had said.  His record of cheating his own workers and contractors was well known.  He was never going to drain the swamp.  He is a New York City billionaire (maybe) who opportunistically changed his views to win the biggest prize he could find.

As a matter of political strategy, I can see why Democrats do not want to say any of that.  Because I am not a Democratic strategist, however, I will not willfully avoid noticing this rather uncomfortable implication of the effort to exculpate people's bad decisions.

After all, when a working-class white voter decided to vote for Trump, he was not actually being selfish.  I would actually have been ecstatic if those voters had pursued their own self-interest.  But because they did not, they (along with many other people) will soon have lower incomes, worse health care, dirtier air, more extreme weather, a greater likelihood of living (and possibly dying) in a nation at war, and on and on.

And this is all because people like Meryl Streep supposedly have disdain for working people?

The reliance on "feelings" as a defense is certainly popular.  Just this week, Trump's nominee for Attorney General responded to accusations of being a racist by saying that it hurt him deeply to be called such a thing.  It is an awfully convenient distraction, and it works because ultimately Republicans want to have it both ways, attacking Democrats for not being hard enough on people but then wanting sympathy and understanding when it suits them.

To be clear, I continue to be very concerned about the economic stagnation that has made so many people receptive to the demagoguery of bigots.  Even so, there is still a responsibility to respond to personal fears and uncertainty in a productive way.  Saying, "I'm mad, so screw the system!" might feel good in the moment, but it is a profoundly harmful reaction.

Trump's Wall Echoes the Venetian Ghèto

by Michael Dorf

During the presidential election campaign, criticism of Donald Trump's proposal to build a wall at the southern border and make Mexico pay for it took various forms. These included: skepticism about the cost; doubts about efficacy (given the possibility of going over the wall via ladders and ropes, under it via tunnels, etc); and doubts about the ability of Trump to require Mexico to pay, especially after Trump's meeting with Mexican President Peña Nieto, when the latter announced that he flatly told Trump that Mexico would not pay for the wall.

The last question--about payment--was revived recently when Trump sought funding for the wall from Congress. When critics objected that this was contrary to his campaign rhetoric, Trump took to Twitter (of course) to explain that Congress would, in effect, be providing mere bridge funding until Mexico reimburses the U.S.

That tweet in turn restarted the debate about how Trump would extract billions of dollars from an unwilling Mexico to fund his wall. Would he impose tariffs on Mexican goods? Higher tolls on border bridges? Taxes on remittances? Such ideas are discussed in a recent article in the Kushner-owned official state newspaper of the country formerly known as the United States, perhaps soon to become known as TrumpmenistanThe Observer/Pravda story bore the Trump-friendly headline "Yes, Donald Trump Can Make Mexico Pay for the Wall."

I am willing to stipulate that Trump (with the aid of Congress) can make Mexico pay for the wall, but the question of how to get Mexico to pay for the wall tends to crowd out a different, perhaps more basic question, that seems to go largely unasked in discussions of the financing of Trump's wall: Why? Even if one assumes that building a border wall is sound policy, why should Mexico have to pay for it?

One answer might be because the U.S. can get away with forcing Mexico to pay. But that answer, standing alone, doesn't survive inspection, because there's no reason to limit it to funding a wall. Why not tax remittances of undocumented (and documented?) Mexican immigrants at a high enough rate to pay for other Trump priorities, like infrastructure projects in the interior of the country or, after the GOP Congress rejects such projects, tax cuts for the super-wealthy? If the U.S. can get away with forcing Mexico to pay for U.S. spending projects, why stop there? Why not make China, Canada, and other countries pay too?

The notion that Mexico should pay for the wall appeals to a different, or at least supplemental, sort of logic beyond might makes right: Mexico should pay for the wall because the wall is needed to address a problem that is Mexico's fault. In this logic, because Mexico is sending crime, drugs, and rapists, Mexico should fund the construction of the wall to keep out the bad actors.

Although I freely admit that the following analogy is not perfect and could be seen as explosive, because I recently read Paul Johnson's magisterial 1987 book A History of the Jews, in thinking about the Trumpian logic of making Mexico pay for the wall, I was reminded of Johnson's description of the first European ghetto, in Venice. (The word ghetto derives from ghèto, a term of uncertain etymological origin for the selected area.)

Johnson writes that the immediate motive for ghettoization was the influx into Venice of over 5,000 Jewish refugees, many of whom had been expelled from Spain and Portugal, and the sermons of friars demonizing both the new arrivals and the longstanding Venetian Jewish community. Confining Jews to the ghetto was seen as a somewhat milder remedy than expulsion from Venice. The authorities then turned to practical concerns. As Johnson writes:
The spot chosen was . . . formed into an island by canals, equipped with high walls, all windows facing outward bricked up, and two gates set up manned by four Christian watchmen; six other watchmen were to man two patrol boats, and all ten were to be paid for by the Jewish community, which was also instructed to take out a perpetual lease of the property at one-third above the going rate. (p. 235)
Not only did Venice build four walls and make the Jews pay for them; the Venetians turned a profit in the bargain! Perhaps Trump can learn a thing or two.

To be clear, in invoking this comparison I do not mean to say that Trump's wall aims to make a ghetto of Mexico, but I do want to note a couple of disturbing points of contact between the Venetian ghetto walls built almost exactly 500 years ago and the wall that Trump proposes to build in our time.

First, is the lying. Of course Trump lies about so many subjects that this is too easy a point of comparison, so I should be clear that I just don't mean lying in general but the nature of the lies. Trump's various campaign statements about undocumented immigrants and crime coming across the southern border earned four pinnochios from the Washington Post. His focus on illegal immigration ignores the fact that the population of undocumented immigrants in the United States has been stable, not increasing, for the better part of a decade. Meanwhile, although of course some undocumented immigrants commit crimes--as do some other immigrants, tourists, and citizens--substantial evidence indicates that undocumented immigrants are less likely to commit crimes than the baseline population. Their addition to the population thus lowers rather than raises crime rates. Trump's incendiary and dishonest rhetoric that launched and sustained his campaign served something of the same function for his most ardent anti-immigrant supporters as blood libels served for the medieval anti-semites whose agitations led to the ghetto.

Second, is the idea of collective responsibility. Even in his original "they're bringing drugs" speech, Trump repeatedly elided any distinction between what the people escaping Mexico were bringing to the United States and whom and what Mexico was supposedly sending to the United States. He did so even though he went on in that speech to state that the problems were not coming only from Mexico but from "all over South and Latin America, and . . . probably from the Middle East." Nonetheless, Trump did not propose that the countries from which undocumented immigrants originate each pay their pro rata share of the cost of building and maintaining the wall. Mexico must foot the whole bill. One has the sense that for Trump, everyone coming over the border is in some sense being "sent" by Mexico. Just as the Venetian authorities left for the Jews of Venice to sort out how to collect the money to be handed over, one imagines Trump leaving to Mexico the task of proceeding by way of indemnification against other countries from which undocumented immigrants originate. No doubt he considers them all sufficiently similar others such that a tax on any is a tax on all.

Notions of collective responsibility appear elsewhere in Trump's ugliest rhetoric, especially in his discussion of Muslims. There was, of course, his call to kill the family members of terrorists, regardless of any complicity. And, spreading collective responsibility community-wide Trump twice asserted--after the San Bernardino shootings and after the Orlando nightclub attack--that the American Muslim community as a whole was responsible for such acts for supposedly choosing not to prevent them. In the latter instance, he said of the people likely to perpetrate terrorist acts, "Muslims know who they are, largely. They know who they are. They have to turn them in. They know who they are. They see them." That statement combined a group libel with the imputation of collective responsibility.

To return to the puzzle with which I began--Why should Mexico pay for the wall?--we see that the logic of Trump's implicit answer resonates with his most despicable views and political instincts. Preposterous as it was when considered as a policy proposal, Trump's plan for a southern border wall always made a kind of deranged sense as the psychological centerpiece of his campaign.

Wednesday, January 11, 2017

The Life of an Animal

by Sherry F. Colb

In my column for this week, I discuss the case of Brown v. Battle Creek Police Department, in which the Sixth Circuit affirmed a grant of summary judgment for the defendants in a suit brought under federal civil rights law.  The plaintiffs in the case sued individual police, the city, and the police department after police killed the plaintiffs' two dogs while carrying out a search of the plaintiffs' home pursuant to a warrant.  The main claim was that the police violated the Fourth Amendment right against unreasonable seizures by shooting the two family dogs to death.  In the column, I suggest that the plaintiffs should have prevailed and that the Sixth Circuit was wrong to affirm the grant of summary judgment to the defendants.  The life of a dog, even according to the Court of Appeals, is worth more than a piece of furniture, yet the court did not demand very much of the police as a precondition to their decision to kill the dogs.

In the course of discussing Brown, I note that many of the same people who would share my outrage at the police officers' decisions that led up to their killing the two dogs routinely participate in the torture and slaughter of sentient animals--animals who have as much capacity to feel pain, to enjoy life, and to experience emotions as a dog--by consuming products like meat, dairy, and eggs.  Let me emphasize here that the two positions held by people in this (very large) camp are completely inconsistent.  On the one hand, they fault police for killing dogs when there are other alternatives that could equally serve the objective at issue, here to protect the safety of the police officers.  On the other hand, they permit themselves to consume the products of animal harm and killing--typically more than once a day--when there are other alternatives that could equally serve the objective at issue, namely, to nourish oneself with delicious, nutritious, and filling food.  Because judging others (here, the police) is involved, this inconsistency amounts to hypocrisy.  (Though I am not sure of the derivation of the word "hypocrite," I would guess that it has something to do with being less than adequately--hypo--critical, by being critical of others while sparing oneself the same critique).

Would I prefer that such people be fine with police shooting of household dogs during searches because then their positions would be consistent?  No, of course not.  The expression "hypocrisy is the homage that vice pays to virtue" applies here.  If someone couldn't care less when a nonhuman animal is unnecessarily killed, whether by police officers or in response to demand by animal-product consumers, then there is little potential there, little to work with.  Being critical of the police means that the person's moral intuition tells her that it is wrong to kill an animal if there is a less restrictive alternative method for meeting the same need (assuming that it truly is a need, which--in the case of police protecting their own safety and in the case of consumers feeding themselves--it is).  Once a person acknowledges the moral intuition that unnecessarily killing an animal (that is, failing to employ an available less restrictive alternative means of meeting a need) is wrong, then that person is in a position to interrogate her own behavior and examine whether it is in keeping with her own values.  This is not an easy thing to do, of course, because people prefer to do things the way they're used to doing them, but it is a worthwhile endeavor, and a news story--like the story of police shooting two family dogs during a search--can usefully trigger the raw materials for that endeavor.  It was experiences like this that helped lead me to become vegan.  I deplored cruelty to animals, and when it was pointed out to me that I was paying people to be cruel to animals, I came to realize that my behavior did not match up with my own sense of right and wrong.

What makes cruelty to dogs an important "teachable moment" is that close to half of the households in the U.S. have a dog, so people are familiar enough with dogs to understand that dogs have feelings and thoughts and can suffer in many of the same ways that human beings can suffer.  People have direct access to dog sentience in a way that they lack such access to the sentience of cows, chickens, pigs, and fishes, along with the other animals whose flesh and bodily secretions make their way to most Americans' plates.  This could be why people sign petitions condemning the consumption of dogs in other countries while happily consuming other animals (and their secretions, obtained with the same or worse cruelty as flesh) themselves.  It could also explain people's outrage at dog-fighting. It is also true that people are not invested in viewing dogs as food or as "fair game" for the infliction of pain and slaughter in the way that they are invested in viewing cows, chickens, pigs, and fishes in this way.  Take the "otherness" of farmed animals coupled with the investment in seeing them as "suitable for slaughter," and you have the ingredients for resistance to the notion that it could be wrong to eat the muscle tissue or hormonal output of a hen or a calf.

Resistance is a powerful thing.  Resistance motivates people to come up with all sorts of ways of distinguishing between the behavior that they condemn and the behavior in which they regularly engage. Such arguments as "dogs were not bred for slaughter but pigs were" are weak and unimpressive but feel very convincing to someone who wants to believe that what they are doing and what they believe are not in fact in conflict (even when they actually are).  The fact that someone was brought into existence for an immoral purpose (taking their lives away while they are young and hurting them terribly before that point) does not do anything to magically make that purpose moral. Imagine if someone told you that he was selling his son into the sex trade but that it was okay to do that because the only reason he and his wife decided to conceive their son in the first place was for the purpose of creating a sex slave for them to sell.  That hardly redeems their behavior.  (For more arguments people make to defend the consumption of animal products, along with responses to the arguments, check out Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans).

So I am glad that there are people who find police killings of dogs morally troubling, both because I share their view on this subject and because they thereby reveal their commitment to a moral principle that ultimately commits them to ethical veganism (even if they do not realize it or believe it just yet).  My hope is that more and more people who care about dogs will come to realize this truth if people point it out often enough.

Tuesday, January 10, 2017

Financial Bias Versus Ideological Bias

by Michael Dorf

My latest Verdict column uses the occasion of the late discovery last week that CJ Roberts had a conflict due to stock ownership requiring recusal in a patent case, along with the confirmation hearings for executive officials who have not yet been fully vetted on potential conflicts as a hook for writing about measures short of a blind trust that can substantially mitigate conflicts of interest for government officials. I suggest that for most such officials--including justices--placing their intangible assets in a broad-based diversified portfolio works almost as well as a blind trust. I conclude by noting that this would work for President-elect Trump as well, were he willing to forgo the "corruption premium" that he gains by maintaining ownership in properties branded with his name.

Meanwhile, with the news that yet another gazillionaire--Trump son-in-law Jared Kushner--will be taking on a formal role in the administration, I want to make what might sound like a heretical suggestion: Although of course financial conflicts of interest are serious and should be avoided, I want to suggest that the reason we pay as much attention to them as we do amounts to a kind of laziness: financial bias is relatively easy to identify and contain, at least as contrasted with ideological bias, which is ubiquitous, potentially very dangerous, and yet considered totally legitimate.

Here's what I mean about the ease of identifying and containing financial bias. In a case between companies A and B, a justice who owns stock in A but not B has a clear potential bias for A. Likewise, a regulator who has a stake in one or more firms (or their competitors) that are potentially subject to regulation can be tempted to make decisions based on what is in her own personal financial interest rather than based on her judgment about what is best for the public, all things considered.

Seen in this light, it is at least a little bit odd that Republicans are pushing forward with confirmation hearings for Trump executive branch nominees without full conflicts/ethics vetting. After all, because Republicans are more likely to be sympathetic to the ideological policy agenda of Trump's nominees than are Democrats, one would think that Republicans would have more to fear from a cabinet or other high-ranking official whose judgment is derailed from its ideological track onto a track that serves the official's personal financial interest, which would not necessarily track ideology. And yet it is Democrats who are asking for delays while Republicans are pressing ahead.

Part of this is simply political theatre, of course. Confirmation hearings rarely benefit the subjects of those hearings. Democrats could use the hearings as an opportunity to question Trump's nominees about some of Trump's more outrageous statements and proposals, putting them in the difficult position of either agreeing with those positions or disagreeing, and thus causing political damage to Trump. Even Republicans who were not big supporters of Trump's candidacy don't want to play along.

But I want to suggest that the seemingly odd lack of interest in the possibility of ethical conflicts by Republican Senators is actually rational, because the bias created by ownership of stock in particular firms (or its equivalent) is relatively modest compared with ideological bias.

Most people with substantial wealth who go into government do so at financial cost, not for a financial benefit. They take a pay cut and are subject to rules that would not otherwise constrain them. They do so for a variety of reasons, including, for people in high-ranking positions, ego-gratification, a desire for power, and a genuine desire to promote their conception of the public interest, i.e., ideology. Except in the case of people who are thoroughly corrupt, ideology will typically be the most salient factor.

We can see this most clearly by noting how poorly the recusal practices of judges and justices match up with what we really care about. Think about some important case in which a key justice was recused or in which people clamored for recusal to no avail. The underlying ground for seeking recusal--a hunting trip with the Vice President, as in a case involving Justice Scalia, or participation in some aspects of a case as SG, as with Justice Kagan--was really quite silly. Everybody knew how the justices were likely to vote based on their priors, having nothing to do with the nominal basis for seeking recusal. In general, liberals want conservative justices recused from all cases and conservatives want liberal justices recused from all cases. We/they only use nominal conflicts opportunistically.

There's no reason to think that things work all that differently in other branches of government. Republican Senators are willing to move quickly past possible financial conflicts of interest of Trump's nominees because they rightly understand that ideology will be a much more important driver of how these nominees, if confirmed, will make decisions. To choose one fairly representative example, Republican Senators are counting on Andy Puzder to bash labor as Secretary of Labor because Puzder believes in bashing labor. They're confident that his ideological druthers for labor bashing will prevail over any countervailing interest that his ownership stake in Hardee's or some other firm might provide in any particular case.

To be clear, I'm not saying that the rules governing financial conflicts of interest are unimportant or should not be enforced. Keeping corruption out of government is vital because it's much harder to clean up a corrupt system than simply to maintain a non-corrupt system. And just because ideology is generally a more powerful motivator for the sort of wealthy person who takes a Cabinet position than the prospect of personal gain, we shouldn't assume that such a person would never succumb to a financial conflict of interest. Thus, even though Senate Republicans are making a rational calculation in rushing through Trump's nominees, everyone would be better served by a careful vetting of nominees' finances as well as their policy druthers.

Monday, January 09, 2017

Why Trump and the GOP Might not Want to Fill Scalia’s Seat

By Eric Segall

After Justice Scalia passed away last February, I argued that the Supreme Court should stay at eight Justices evenly-divided among Republicans and Democrats on a permanent basis. It has now been almost a year since the Court has been evenly divided and the justifications for my proposal have only gotten stronger and more persuasive as we have seen how a four-to-four Court actually operates. Moreover, even though it may sound counter-intuitive, it is in both the short and long term interests of President-Elect Donald Trump and the Republican Party (and the American people as a whole) to not fill the vacancy caused by Justice Scalia’s death.

I argued in the New York Times and elsewhere, that a permanent, evenly divided Supreme Court along partisan lines would result in more consensus and bi-partisan decision-making, reduce the opportunities for five or more Justices to impose rigid ideological agendas over long periods of time, and improve the irrational process we now use to select the Justices for our highest Court whose political make-up is largely the result of death, sickness, and strategically timed retirements. I also explained how the proposal could be easily implemented and, as opposed to other popular suggestions to improve the Court such as the abolition of life tenure, mine would not require a constitutional amendment.
          Over the last year, the Court has taken fewer controversial cases and delayed oral arguments in several of the most important cases the Court accepted before Scalia passed away. The Justices have also deadlocked in cases involving immigration, Obamacare, and the free speech rights of state government employees. Not only has the sky not fallen, but perhaps given the passage of time, both Democrats and Republicans can now agree that, if the Court is tied four-to-four on a particular issue, and if the courts of appeals are also split on the question, that is a strong sign that the Justices should not impose a national uniform rule on all fifty states and the American people. After all, shouldn’t the Justices only displace the decisions of more accountable government officials when the constitutional violation is clear, and doesn’t an even split among so many judges strongly suggest the issue in question is not clear?

In addition to the non-partisan benefits flowing from an evenly divided Supreme Court, there are also strong political reasons why President-Elect Trump and the Republican Party should not fill Scalia’s seat right now and instead start serious discussions with the Democrats over how to make an evenly divided Supreme Court permanent (as is the case with the six-member Federal Election Commission, which by law must have three members of each political party at all times).
           First, the new Administration and the new Congress have proposed many significant changes to the current legal landscape, including of course the repeal and replacement of Obamacare and rescinding executive actions on immigration. A bruising and controversial confirmation battle will divert much time and attention from these legislative items.

Second, it is unlikely that the social issues that some GOP constituencies view as so important are particularly high on Trump’s personal agenda. He certainly spent more time during the campaign talking about jobs, immigration, and foreign policy than he did talking about the Supreme Court, which he did mostly in short sound bites.
          Third, the new Senate Minority Leader Charles Schumer has all but announced that the Democrats will not approve any nominee Trump is likely to name. The GOP majority in the Senate, however, is only 52-48. That means there will likely be a fight over whether to end the filibuster for Supreme Court nominees because it is highly unlikely that any nominee will secure 60 votes. That fight may well be bruising and protracted as there are GOP Senators who may defect from the party line during the battle. How all of that plays out to the American people may seriously affect Trump’s, and the GOP’s, overall political agenda. As Nate Silver has suggested“relatively minor differences in Trump’s popularity could make a big difference in whether his agenda is passed or stymied, as … senators calculate the impact of their vote in 2018 or 2020.” Is this battle over a Supreme Court nominee one that Trump wants at the beginning of his Presidency?
           Fourth, ending the filibuster for Supreme Court nominees could of course come back and haunt the GOP when it is again the minority party in the Senate. It is not going out on a limb to suggest there may well be turbulent times ahead and, if there are no other vacancies on the Court over the next four years, and given the ages of the current Justices, the real balance of power on the Court could well be determined by the 2020 elections. Ending the filibuster for SCOTUS nominees is definitely a roll of the dice for the GOP.

            Fifth, as I argued in my prior pieces, an evenly divided Supreme Court is a weaker Court. The GOP has not been completely successful over the years appointing Justices who remain consistently conservative, as the examples of Justices Blackmun, Souter, and Kennedy demonstrate. It is in the long-term interests of both political parties in the Congress to weaken the Court so that fewer federal laws are struck down by the Justices simply on the basis of ideological disagreement.

            Finally, numerous conservative senators on the Judiciary Committee such as Ted Cruz, Mike Lee, and Chuck Grassley, constantly talk the talk of states’ rights. A permanently evenly divided Supreme Court is less likely to displace state laws over the long haul than a Court where five or more Justice share the same agenda, and, as noted earlier, there is no guarantee the Court will over time have a majority of conservative or states’ rights friendly Justices.

            There are compelling non-partisan reasons to support a permanent evenly divided Supreme Court. Such a Court would work better for all the American people, But there are also strong political reasons why the GOP might want to avoid a contentious battle over the next nominee during the first year of the new Administration. Justice Scalia’s seat should stay empty until the Congress, the President, and the American people have time to study and reflect on the many upsides to maintaining the current political balance on our nation’s highest Court. 

Friday, January 06, 2017

No Method to the Madness

by Michael Dorf

In recent days, President-elect Trump has seemed to walk back his dismissal of the intelligence community's confident assessment that Russia was behind the hacking of Democratic email accounts and their release via WikiLeaks. As with all things Trump, the walking back could be reversed at any moment and comes with only deflection, nothing resembling an apology. Here, in two tweets, we learn that it was not Trump who credited Julian Assange over U.S. intelligence officials but merely the "dishonest media" that misattributed this sentiment to him and that Trump is a "big fan" of "Intelligence."

Whether Trump remains a big fan of "Intelligence" after he has his first encounter with some actual intelligence remains to be seen. Today, Trump is scheduled to receive the briefing that President Obama received yesterday. Presumably that will include classified information that was not in the public hearing conducted by the Senate Armed Services Committee yesterday. It's possible that when the evidence is laid before him, Trump will conclude that it was Russian hackers after all.

But don't count on it.

Another possibility is that Trump--who is in many respects the embodiment of the Dunning-Kruger effect--simply won't understand what he is told and so will continue to think that China or a 400 pound guy in bed was behind the hacking. (Note to self: For future column, ask why the standard catalogue of groups of people Trump insulted during the campaign--Mexicans, Muslims, women, etc.--does not include people who weigh more than they would like. But I digress.)

It's also possible that Trump will get the briefing, will be persuaded that yes indeed there is overwhelming evidence of Russian hacking, and then simply lie about what he heard. The tweet pretty much writes itself: Good briefing on hacking. No clear intel who it was. Must rebuild intel after Obama and Dems ruined it. MAGA.

To be sure, there is yet another possibility. Maybe Trump has inadvertently stumbled onto something. U.S. intelligence is hardly perfect. Trump is right that the WMD assessment leading up to the 2003 Iraq War was a terrible failure--although much of the blame for that must be laid at the feet of the Bush Administration for pushing the intelligence professionals for a particular answer. Still, the fact that Trump says something isn't, by itself, a sufficient reason to conclude that the thing he says is wrong. At this point, we in the public have only the assurance from the intelligence agencies that they are confident the Russians were behind the hacking. Maybe the declassified report to be released next week will be so damning that reasonable people will have no choice but to accept its findings, but until that happens, as this skeptical Rolling Stone article notes, we have only a "trust us."

In light of the bipartisan consensus among people who have seen more than I have, I'm inclined to think that Trump's skepticism is unwarranted. Or at least I'll assume that for the balance of what I say here. So what is he up to? Why does Trump want to begin his presidency at odds with the intelligence professionals?

I continue to think that the best answer is one that I floated a couple of weeks ago, when I asked why Trump doesn't just condemn Russian hacking. I wrote then Trump's opposition to an investigation is not based on any sort of rational calculation. It is simply the product of his huge-but-fragile ego. Anything that is in any way connected with the possibility that he didn't win a ginormous unpresidented victory without any help from anybody must be met with the overwhelming force of Trump's blustering denials and fabrications.

I'll end on a dire note. Even though I think Trump is not making any sort of rational calculation, in a sense, his acting out is harmless to him and maybe even beneficial. The intelligence officials whom Trump has insulted will most likely put professionalism above ego and give him the same information they would give any president. But even if not--if Trump's criticisms of the intelligence community end up driving a wedge between him and them--the result could "benefit" Trump. A terrorist attack that goes uninterrupted because the president does not have the full cooperation of the intelligence services is just the sort of tragedy that could create a rally-'round-the-president effect. At that point we could expect Trump to revive some of his more outrageous proposals--the Muslim ban, torture, etc.--and we would likely see increased public support for these plans.

Thursday, January 05, 2017

The Moderation Game

by Neil H. Buchanan

All hail the moderate politician!  She or he is unwilling to heed the siren call of extremism, content to understand that the best policies are in the middle of the road and that people on both sides of the aisle are too tempted to ignore the wisdom of the ages.  What reasonable person could disagree?

This all sounds good, and the truth is that being willing to compromise is necessary for political progress.  The enduring problem is that it is far too easy to define moderation as "something between what the two parties are doing," no matter what those parties are actually doing.  Even worse, some people are even implicitly defining moderation as "the halfway point between actual Republican extremists and their imaginary Democratic counterparts."

This column is, however, not a call for Democrats to become as extreme as Republicans.  Instead, the imperative is for Democrats to embrace and glorify the virtues of moderation -- and then to point out that they have in fact been the avatars of moderation and compromise all along.  This argument is, of course, utterly at odds with the mythology of current American political commentary.  It is, however, demonstrably true.

Before the election, many prominent conservative commentators (but very few Republican officeholders) broke from the unmistakable right-wing extremism that Donald Trump represented.  Had the election gone the way that they expected, those commentators would now be earnestly telling their defeated comrades to reject the Republicans' scorched-earth policies of the Obama era, to rein in the zealots and the hyperpartisan nihilists in Congress and the state legislatures, and to embrace compromise.

With the election turning out as it did, however, the never-Trump conservatives had to decide how to react.  This is not the I-told-you-so moment that they anticipated, so where did they go as a first refuge?   They attacked the Democrats for being immoderate, of course!

Take two of the never-Trump pundits who are publish regularly on the op-ed page of The New York Times, David Brooks and Peter Wehner.  In some ways, it is unfair to Wehner to lump the two together, because his writing reflects a depth of analysis and a seriousness that Brooks (notwithstanding his pretensions) has never come close to achieving.

Even so, both men provided frequent and passionate conservative voices in opposition to Trump prior to November 8, 2016.  And both men, all too predictably, have decided that even in this new era of one-party rule by emboldened radical conservatives, the search for fake moderation requires them to criticize Democrats, too.

In other words, even when the two sides could not be more different in their approaches to politics and policy, and even as Trump's presidency threatens the very foundations of constitutional democracy, false equivalence is again the order of the day.

Brooks was less subtle about it, perhaps due to simple muscle memory.  Four days after the election, he was warning the Democrats not to respond to Trump's ascension by listening to Bernie Sanders and Elizabeth Warren.  Why?
"The coming Sanders-Warren party will advocate proposals that help communities with early education programs and the like, but that party will close off trade, withdraw from the world, close off integration with hyper-race-conscious categories and close off debate with political correctness."
I have listened carefully to what Sanders and Warren have said, and there is nothing in Brooks' description that even comes close to accurately describing their views.  He is, if you will, immoderately exaggerating and distorting their views to make them seem to be extremists.

Would the Sanders-Warren wing of the Democratic Party "close off trade"?  Sanders has criticized trade deals, but he also knows (as Trump does not) that you cannot simply tear up trade deals and pretend it is the 1950's again.  Being in favor of different trade deals does not equate to being against trade.

What about "hyper-race-conscious categories" and shutting people down with "political correctness"?  Perhaps Brooks saw a report on Fox News that distorted a campus protest or the Black Lives Matter movement and decided that liberals are doing things that they are not in fact doing.  Because terms like political correctness are so usefully vague, Brooks can hurl that accusation with abandon.

Interestingly, however, Brooks is the one who is shutting down the debate, because his formulation makes it all too easy for him to respond to any liberal argument by saying, "Oh, that's just so much political correctness."  And any concern about, say, the racial aspects of poverty is similarly easy to deflect as an attempt to "close off integration with hyper-race-conscious categories."

Against Brooks's utter distortion of what liberals want to do, what is his ideal alternative?  He claims that we need a third party, a "compassionate globalist party" that would respond to dislocations of globalization by "offering programs to rebuild community, foster economic security and boost mobility" and "integrate the white working class and minority groups by emphasizing that we are all part of a single American idea."

Sounds great.  It also sounds a lot like what Barack Obama, Hillary Clinton, and the Sanders-Warren wing of the party have all been advocating for years.  No, they do not agree with each other about all of the details of various trade deals, but that is because "free trade" is not a binary concept.

It is, in fact, simplistic and wrong to describe people like Sanders as opposing free trade, because there are many different ways to set up trade rules that would all allow international trade to flourish -- but that would also do better or worse jobs of rebuilding communities and helping to integrate white working class and minority citizens into shared prosperity.  The alternative to current trade policies is not closed borders, and Democrats know it.

Again, it is probably a bit of overkill to go on at such length in response to a column by Brooks.  He was, after all, one of many pundits who continued to describe Obama's measured incrementalism as radical leftism.  He repeatedly told Obama to stop being so liberal and embrace the holy grail of fiscal compromise -- the over-hyped Bowles-Simpson plan -- without noticing that Obama had actually offered to sign something more conservative than that supposed ideally moderate plan.

Wehner, however, is a different story.  He is relatively new to the Times's pantheon of punditry (and thus not stale), and he brought a level of thoughtfulness to his writing that was truly unique.  As a conservative and lifelong Republican, he clearly anguished over the idea of rejecting his party's nominee.  But reject him he did, apparently at the cost of some friendships.

Nonetheless, Wehner's post-election analysis lapsed all too easily into the both-sides-are-bad trope.  In a December column that was otherwise a compelling argument in favor of compromise for the good of the republic, he demonstrated a decided detachment from reality: "The concern some of us have is that even before Mr. Trump set foot on the political stage, ... moderation was passé in both parties and that no politician would defend it as a political virtue."

Again, defending moderation as a political virtue is what the Obama-Clinton wing of the party has done over and over again, even to the point where the people who are to their left reviled them.  And it is not as if the actual policies that those on the supposed extreme left advocated were radical, either.  Sanders's plan for the estate tax, for example, would have done nothing more than return that tax to its 2009 form, when George W. Bush left office.

Yet we end up with news articles describing Democrats' post-election debates as if the party has not already moderated its views again and again: "The party is at odds over whether it should tailor its message to the young and nonwhite constituencies that propelled President Obama, or make an effort to court moderate voters." 

What does moderate mean here?  Is it merely Brooks's view all over again, which amounts to saying that appealing to anything but white working class Trump voters is per se immoderate?  What is it that Democrats have been doing to court the young and nonwhite constituencies that turns off these elusive moderate voters?  Moderates support Democrats' views on the environment, the minimum wage, reproductive choice, and on and on.  Unless we define moderate voters as people who are turned off by pluralism and modernity, then Democrats have been trying to appeal to moderate voters all along.

Or are we simply back to the now-familiar claim that Democrats talked too much about identity and not enough about the economy?  The problem with that argument is that Democrats spend quite a bit of time talking about the economy, and their policies are popular.  Setting up the question as a choice between appealing to young and nonwhite constituencies or going after moderates presumes that it is not possible to do both.  That is simply not true, unless we simply define moderation to make it impossible.

In a recent column, I argued that Democrats need to take "desperate measures" to deal with the desperate political situation in which they now find themselves.  My suggestion, however, was not to take extreme positions, in part because that is simply not necessary.  Sometimes, however, the moderate position is not supported by current legal doctrine, which means that trying to validate the moderate position can look like a hail-Mary pass.

I thus argued that Democrats should be willing to pursue legal challenges that might be a stretch under current legal doctrines, especially including challenges to various Republican efforts at voter suppression or gerrymandering.  Current legal doctrine imposes serious roadblocks to Democrats' potential challenges, including the idea that "political questions" should be decided by the political branches and not by the courts.

That means that the betting odds are decidedly against the Democrats in any such legal challenge.  But what the Democrats would be asking the courts to do is anything but extreme.  For example, they do not need to say, "We want to gerrymander, too."  This is not to say that Democrats are angels, of course, or that some of them would not be just as unrestrained if the roles were reversed.

But what they could say is quite moderate: We want to be able to compete on a level playing field.  What would be the hallowed middle ground between that argument and what Republicans have done?  Democrats can and should occupy the center, even when doing so can be painted as desperate.

After all, Democrats would simply be arguing that the courts' reliance on the political branches to deal with political problems is admirable but that such reliance breaks down precisely when the political branches are no longer representing the people.  The courts' job should be to protect the people from the depredations of anti-democratic political operatives.  Would that argument not play well with moderates?

In the end, the Democrats need to push back harder than ever against the idea that they are merely the mirror image of the Republicans.  They are not the ones that championed policies that brought inequality to historic extremes (although, in their zeal to be seen as moderates, too many Democrats failed to fight those policies).  They are not the ones who deny reality regarding the environment.  And on and on.

It is a shame that, at a time when Trump's influence will only increase the extremism of Republicans in Congress and the statehouses, even the more reasonable conservatives are scolding the Democrats for nonexistent extremism.  There will always be rhetorical power in being able to call oneself moderate and one's opponents extreme.  Democrats have the advantage of being able to say so honestly.