The Eclipse of American Democracy, Part Eleven: Open Partisanship in the Judicial System

President Trump and his Republican enablers are not shy about their goal of dismantling public institutions as we have long understood them. Consider Trump's communication style. Many folks would consider it inappropriate for the President to begin each day by firing off personal insults against people who disagree with him, including people he appointed to government positions. But according to Trump he's just being, "modern day Presidential." And many folks probably thought that in the 21st century, we would have Presidents that respect the tradition of America as the great melting pot, whereas instead we have an administration that will cheerfully remind you that it is openly white-supremacist and religiously bigoted.

Another way in which we live in a world turned upside down: This week, a man appeared at a job interview and told a number of falsehoods while at times yelling, crying, talking about his love of alcohol, suggesting he is targeted by conspiracy and threatening those who have doubted him. That man was Brett Kavanaugh, appearing before the US Senate he hopes will appoint him to the Supreme Court, and responding to allegations of sexual misconduct. From Benjamin Wallace-Wells of the New Yorker, "The line between judicial independence and partisan politics is thin, often illusory—a pretense, really, but rigorously preserved. This afternoon, that line disappeared entirely. Kavanaugh,  "claimed the Democrats were seeking "revenge for the Clintons" and invoked the Bible: "You sowed the wind, now I fear that the whole country will reap the whirlwind."" Republican Senator Lindsey Graham of South Carolina went further, issuing the threat, "Let me tell you, my Democratic friends. If this is the new norm, you better watch out for your nominees."

To digress for a moment, we need to ask: what is this dangerous precedent that Democrats are setting by suggesting that credible allegations of sexual misconduct be investigated before a man is appointed to an incredibly important lifetime position? From Anna North of Vox.com:

"The message of Kavanaugh’s threats was clear: If he wasn’t safe, then no one was. That message comes from a place of deep privilege. While women have never been safe when coming forward to report sexual misconduct, men like Kavanaugh — white, educated in the country’s most prestigious schools, groomed through high-profile jobs — have long been able to glide smoothly to the highest levels of our government and other arenas of power. That may still be true; the Senate Judiciary Committee is set to vote on Kavanaugh’s confirmation on Friday. But increasingly, these men are not safe from the testimony of women who come forward to share their stories."

Returning to the subject at hand: So then, gone are the days when candidates for federal and state Courts were not openly partisan. And gone are the days when the President might appoint a judge to the Supreme Court without being completely sure of his partisan leanings. Trump's candidates for the federal Courts are vetted and handpicked by the ultra-right-wing Federalist Society. These developments, as evidence by the Kavanaugh nomination, trouble legal scholars. From Matt Kwnong of CBC News:

"Sheldon Goldman was floored by what he heard. The Supreme Court expert with the University of Massachusetts Amherst saw Kavanaugh's aggressive style as a direct appeal to the party of Trump. "The support of the president, that's the name of the game," Goldman said. "It's short-term consideration to keep the support of the Republicans or the president, at the expense of public perception of him and of the court." Except that public perception is vital for the sanctity of a neutral Supreme Court, he said. "It matters to the extent that people will want to accept the court's ruling as legitimate," Goldman said. "And if the court is considered simply another political body, people are going to ask: Why should we insulate these lifetime appointments from politics when they're so heavily involved in politics?"

But once judges are appointed to lifetime positions, at least they can, and hopefully will, adjudicate the law in a non-partisan manner, right? Not if Republicans have their way. Republicans don't care about that old school textbook stuff, the separation of powers in government. Recently, they've discovered that, with legislative majorities locked in by gerrymandering, they can dismantle and remake the Courts at will, and turn them into a system of rubber-stamps for whatever Republicans want. Why didn't anyone think of this before?

In August, the Repubican-dominated state legislature in West Virginia  came up with a most novel approach to removing the current judges on a state Supreme Court so that the Republican Governor can appoint new judges: impeach the entire Court. From Doug Criss of CNN:

"The West Virginia House of Delegates' impeachment of the justices on the state's Supreme Court of Appeals is an unprecedented move spurred by an escalating scandal in the state's judicial system. But West Virginia Democrats charge it's just a ploy by Republicans to put more conservative judges on the bench in the state's highest court.
 
The court's justices -- Chief Justice Margaret Workman and Justices Allen Loughry, Robin Davis and Elizabeth Walker -- are accused of failing to carry out the court's administrative duties and wasteful spending during office renovations."

But let's not be too cynical - perhaps the charges in question are legitimate? Well, the impeachment trial is going on this week, and currently the Justices on trial are being quizzed on "wasteful spending" such are ordering pizza rather than eating in the Capitol cafeteria. High crimes and misdemeanors? So far I'm not seeing them here.

Pennsylvania Republicans have also threatened to impeach their state Supreme Court. Ironically, the threatened impeachment is over another brazen Republican power grab, that's state heavily-gerrymandered map designed to maximize the number of Republicans elected to the US House. The state Supreme Court threw out that map and gave lawmakers a chance to draw fairer lines, but the legislature failed to do so. The call for impeachment never gained traction, so this past June, (from the Associated Press) "Republicans brought forward another plan that could limit the lifespan of the court's Democratic majority: changing the state's constitution to elect appellate court judges in districts, rather than in statewide elections." "The bill passed the Republican-controlled Senate on Wednesday (June 17), blindsiding Democrats who called it a scheme to gerrymander the courts."

Finally, if you've read earlier articles in this series, you won't be surprised to learn that North Carolina Republicans are trying to remake the Courts in that state. It seems no public institution is safe in the state where the Republican legislature (heavily protected by gerrymandering itself) tries to tweak the law on practically a daily basis to thwart democracy and maximize its advantage.

From an August 28 article by Mark Joseph Stern on Slate.com:

"The tumult over North Carolina’s upcoming state Supreme Court election began in 2017, when the GOP-controlled state legislature abolished judicial primaries. Republican Justice Barbara Jackson is running for reelection in November, and GOP legislators hoped to shield her from competition. At the same time, they assumed multiple Democrats would run against each other in the general election, splitting the progressive vote and giving Jackson a smooth path to victory.

"That didn’t happen. Instead, Democrats coalesced around a single candidate, civil rights lawyer Anita Earls. Jackson, on the other hand, drew a Republican challenger: Chris Anglin."

"So Republicans changed the rules. During a hastily called special session, GOP legislators passed a law to strip Anglin of his party affiliation on the ballot. Anglin sued, and a state court blocked the law as a violation of his due process and associational rights under the North Carolina constitution. Speaker of the House of Representatives Tim Moore and President Pro Tempore of the Senate Phil Berger appealed, but an appellate court unanimously declined to reverse the ruling. Rather than appeal to the state Supreme Court—where Democrats currently hold a 4–3 majority—Moore and Berger gave up."
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Next time I'll be writing about the disaster that is Republican Scott Walker's administration in Wisconsin. Hopefully, I'll be writing about his defeat by Democrat Tony Evers. Keep your fingers crossed.

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The Eclipse of American Democracy, Part Five: Gerrymandering and Race

Gerrymandering is such a big topic, I couldn't cover it all in my previous post on the subject. Let's take a look at another way Republicans have long manipulated the system of creating legislative districts: racial gerrymandering. Even before technology allowed those in control to precisely draw districts to their advantage on practically a house-to-house basis based on demographics, Republicans effectively gerrymandered congressional districts through the creation of majority-minority districts.

Here's how it works. The Voting Rights Act of 1965 prohibits the once-common practice of spreading minorities across voting districts, leaving them too few in number in any given district to elect their preferred candidates. The practice was known as "racial gerrymandering." Wow, conservatives must hate being required to create districts where minority voters are the majority, right? Wrong! They love it! Why? Because creating majority-minority districts allows them to racially gerrymander more effectively than ever.

There's a reason why Alabama, Mississippi and South Carolina each send exactly one Democrat (and one person of color) to the US House despite the fact that those states have a lot of minority voters. It's because most of those minority voters are carefully packed into a single congressional district.

Grant Hayden, a Professor of Law at Hofstra University has written a good summary the problem: 

"[M]ajority-minority districts give rise to a dynamic that undercuts the very goal they are designed to achieve. While they improve the ability of minority voters to elect a candidate of their choice in a particular district, they also cost their preferred political party other valuable seats in the legislature."

"Majority-minority districts have at least one very curious effect: they help Republicans. This is curious because minority voters, especially blacks, vote for Democrats in overwhelming numbers. But upon closer study, this by-product of majority-minority districts merely fulfills a longstanding theoretical prediction."

"The theory goes like this. When creating a majority-minority political district, the additional minority voters must come from somewhere. That somewhere is adjoining districts, which are drained of their minority voters. Those voters, though, are not merely minority voters-they are also reliably Democratic voters. And this makes it more likely that the Republican candidates will prevail in those adjoining districts."

Would this actually happen in practice? It's well-documented that it already has. After the 1990 census, scores of majority-minority districts were created in order to comply with the mandates of the Voting Rights Act. For example, thirteen additional majority-black Congressional districts were created. They, in turn, produced thirteen additional black representatives. Majority-minority districting did, indeed, lead to the election of the candidates of the minorities' choosing."

"Unfortunately, a large number of studies of the 1992 and 1994 Congressional elections revealed that this additional representation came at a cost. As a result of majority-minority districting, Democrats lost at least ten seats to Republicans. When minority voters were drained out of adjoining districts, Republican majorities were the result." 

"Both parties apparently notice that majority-minority districts tend to help Republicans overall, and hurt Democrats overall. In the early 1990s, the Republican National Committee pushed for the creation of more black and Hispanic districts as part of a strategy to win additional seats in the House."

This January, the US Supreme Court agreed to hear a case on racial gerrymandering of the kind described above orchestrated by Texas Republicans. This is in addition to the two cases the Court had already agreed to hear on gerrymandering, the first from Wisconsin regarding the extreme Republican gerrymander in that state, the second regarding the gerrymander of a single congressional seat in Maryland by Democrats.

As noted by Pema Levy of Mother Jones:

"This summer, a three-judge panel in San Antonio found that Texas Republicans intentionally weakened the voting power of African American and Latino voters when it drew multiple state House and congressional districts. This was the ninth racial discrimination in voting case the state has lost since 2011, which includes a long legal battle over its stringent voter ID requirement. Now, the Supreme Court will determine whether Texas’ maps can stand."

Whether Texas intentionally weakened the voting power of minorities through gerrymander in that state is not really a question, given that Texas Governor Greg Abbot has said, "[i]n 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats."

The real question is, how long and to what degree with the Court (and Americans at large) will continue to let Republicans get away with this garbage.

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