The Totally Unbalanced Amici List in the Ninth Circuit Tells the Whole Story

As a general matter, the line up of amici in a significant case provides some indication of how institutions are lining up on the issue.  If this were an issue on which the country were split, one might expect that those in support of the administration and those challenging Trump’s Executive order would be in rough balance.

So, I engaged in a quick research project and looked at the Ninth Circuit docket entries, which are here.

There are approximately twenty briefs, and only two were in support of the Executive Order.  One is from from Freedom Watch., and the other does round up a number of the usual suspects, with the list reading as follows:

Amici Curiae U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center

In contrast to the outpouring of states, technology businesses, law professors, advocacy organizations, etc supporting the challenge to the Order, this is a remarkably weak display.

No states, no Republican officeholders, no businesses.  Only a few frequent litigators and a few far-right frequent fliers, heavy on guns, English language monopoly, and border control.  Not a cross section of even just conservative America, let alone America as a whole.

That suggests to me the deep ambivalence of the institutional structures of our society, not only about the Order, but about the administration from which it came.

This adds to the increasing evidence that the policies of the last three weeks are built on shifting sand in terms of support.  At a minimum, this gives the courts far more freedom to follow the law, knowing that if that triggers a formal constitutional crisis (rather than just the de facto one we already have), the courts will have almost all the system on their side.


Will Harvard Have to Move to Canada? Will Google? Will New York City?

After yesterday’s evil, stupid and frightening Executive Order, and its chaotic, confused and terrifying so-called “implementation,” the question has to be asked whether currently US institutions like those listed above (Harvard, Google, New York City) will be allowed to operate according to their internationalist, intellectual, and truth-respecting values.  Because, if the answer is no, then they are going to start thinking about moving first certain operations, and then their leadership, to other countries.

For modern institutions, free flow of ideas, scholarship, thinkers, and contributors is critical, and a rational fair border flow policy is critical.  If a country can not offer that any more, then those organizations that make the country home will suffer massive competitive disadvantages.  And so will the countries from which those institutions then start to move.  Low tax rates only make a difference if you have income.

I am struck by the analogy to the state travel boycotts, and threats of boycott, that played such a role in the recent dis-empowering of homophobia.  Many states were forced to back down by those boycotts and threats of boycotts.  As time goes by, maybe countries will start to face the same dynamics.  It is no good pressuring a corporation to reduce job losses at an in-US plant if there is no intellectual property creating a product that will be wanted enough to keep the previously “saved” jobs producing anything.

Judicial intervention tonight makes this less immediately likely, but unless long term sanity is returned to government, leaders of such institutions will be forced to start to make contingency plans, or cease to be seen as international leaders.

Maybe the current spasms are the death throes of a long dying nationalistic international order, rather than an existential threat to the still emerging international one that has been developing ever since the end of World War II.

I hope that internationalist institutions will find a way to underline the stakes.

p.s. In a model statement, Harvard indeed has.  See here.

Silver Lining Long Term View

We all know that in the long term, the demographic dynamics will result in this political episode being an aberration — assuming that our political system has the strength to resist the assault on it.  Moreover the collapse of the assault seems to be happening even faster than expected.

What we have not thought about is how the rules will distribute power.  The following are likely:

Elimination of the filibuster,

Reduction of the power of individual senators to delay legislation.

Recognition that a president can play a wider and more unpredictable range of roles.

Limits on the power of the president — unless House and Senate go along.

So, assuming Democratic majorities in House and Senate, and a Democratic President, there would be much less power in the minority to slow things down.  That is what the demographics are ultimately going to give us.

Imagine, if these rules had been in effect in 209 and 2010.  We would have had a decent instead of a patchwork ACA that it would have been much harder for the Republicans to tear down, and the Tea Party might never have gotten traction.

And, think about how different the Supreme Court confirmation process might have been.

The Republicans should be careful what they wish for.


First Thoughts on the CIA Finding — We Need A Roberts Commission and Beyond

While there is a long history of countries (including ours) finding ways to mess with their opponent’s political system, this is sui generis, and leads to a thousand thoughts on where this takes us and leaves us.

The Threat of Illegitimacy and a Response

This is, actually,most parallel to the Kennedy assassination, in which fears of external influence were deeply believed, and deeply destabilizing.  President Johnson prevailed upon Chief Justice Earl Warren to take leadership of the Commission he established because he believed that Warren’s institutional and personal credibility would resolve doubts.  While the effort was far from fully successful, at least it was sufficiently so as to maintain the stability o our political system.

We need an equivalent non-partisan, completely credible, and fully supported process.  If Chief Justice Roberts can not be trusted, then we need a new Chief Justice, although I suspect that he is sufficiently an institutionalist that he can be trusted.  Given the increasing fear developing in the “traditional” GOP about this whole issue, it may well be that they would go all in.  Trump of course, could not b part of it, nor his minions, rather however it is set up, it must be done so all the agencies cooperate, without intervention from the White House.  I suspect that this has to be set up and in place before the inauguration.  I suspect that this first Commission would focus only on getting the facts out.

Assuming that Election Impact is Found, There are Ways to Shape US-Internal Consequences

What the consequences for our government leadership are to be has to be depends on the facts.  The problem will be getting in place a system capable of responding to the findings of the Commission.  Assuming that the finding is that there was an effort to get Trump in, and that we can not be sure if this is a cause-in-fact of the result, we are in a terrible place, although one compromise might then be that the party result remains the same, but a new Republican has to be chosen, untainted by any whiff of involvement, encouragement, or lack of concern.  The problem in terms of getting rid of him may be that Trump will not have committed an impeachable offense.

If, on the other hand, the result is found to be caused by the intervention — not impossible given current statistical tools — then may we need an urgent constitutional one time re-write to permit a new election.  That would need a broad national consensus, but if all the prior presidents joined in support, maybe it it could happen.  (And, since we know that Reagan is immortal, his ghost could chime in.)

Of course, it is also not impossible that an “innocent” President Trump would none the less commit an impeachable offense in the attempt to cover up the illegitimacy of his presidency.  It is also possible, as discussed here, that the “unable” language of the 25th Amendment would apply, particularly if Trump’s tendency to be out of touch with reality were exacerbated by the investigation and deterioration of this political situation.

Really Weird Things Could be Found

Supposing, for example, that it turned out that the emails found on Weiner’s computer that led to the FBI intervention in the election had been placed there by the Russians.  Or that hacking had created conflicts between Republican Presidential candidates that had not been there before.  (To think of more ideas, just speculate about what Nixon’s gang would have done if they had had high level hacking capacity.)

The Long Term Threat Goes Far Beyond Elections

Anyone in the leadership elite should be terrified by this.  Think what it threatens to corporations, banks, universities, the media, etc.  They are subject to just the same kind of disruption and potential blackmail as the political players at issue.  They are already deeply fearful of Trump, and this might give them a bit more spine.

The US is Ultimately Less Vulnerable Than Authoritarian Countries

While the interrelated epidemic of false news has made it harder to know what to believe, countries are far more vulnerable to this kindof thing when people basically don’t believe anything they get from media — which is what happened when you have centrally controlled media.  While their elections are not so much subject to disruption than ours, simply because they do not have them in any real sense, the economy, the inner network of real decision makers, the academic and media worlds, are totally subject to interference.  Those countries are not controlled not by a publicly derived and legitimated consensus, but by complex signals in a highly uncertain world, which if properly penetrated, can be caused to collapse.

Protecting Ourselves in the Future

Largely ignored is the simple truth that the best defense again hacking is transparency.

P.S. I would particularly urge you to share this with your networks, particularly anyone you know in media.

The Day After?

With the fivethityeight “nowcast” prediction getting frighteningly close to a 50% chance for Trump, it may not yet be time to panic, but it is certainly time for some realistic planning.  Maybe such planning will help us realize the scope of what is at stake, and keep us calm enough to stop disaster.

First, lets recognize that if Trump wins the electoral college, we wake up in a fundamentally different America.  We all have to think differently about our lives.

Above all, we will have to focus on what really matters.  There are really only three things, and they are chosen because of their irreversibility of failure.

1.  Maintaining our democratic constitutional system of government.  We have to maintain a relatively accessible electoral process, a free press that can and does comment without fear of government retaliation, and a legal and court system that protects the Constitution.

2.  Avoiding nuclear war.

3.  Continuing to move forward on climate change.

With a focus on those goals, a few rough initial generalizations about who might do what.

  1.  Federal employees — Shelter in place.  Hard though it may be to stay in as a representative of, and part of a government that is going to do terrible things, it is very important that as many people as possible are in place who remember than their obligation is to follow the Constitution, not the Leader.  Without such people in place, everything will happen much faster and more irreversibly.
  2. Leaders of organizations — Assert and Defend your group’s values.  It is not partisan to assert the values of your organization even if the leader of the country is directly and overtly dong things that are inconsistent with them.  To view passivity as the only form of neutrality is to collaborate and enable the destruction and defeat of those values.  This generalization applies with equal force to organizations within the federal government, but will be far easier for outside groups like the ABA.
  3. Those with some money — Use it.  It will obviously be critical that organizations that protect rights through information advocacy and litigation have the resources to do so.  Do not just make political donations, but ones guided by the broader need.  Similarly support those media groups that retain their independence — not all will.

That’s enough for now.

Do others have non-rant ideas to contribute?


Even More Astonishing Than Justice Ginsburg’s Comments on Trump is the Lack of Right Wing Outrage

Yesterday morning the New York Times published a precedent-shattering interview with Justice Ruth Bader Ginsburg.

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.

These days, she is making no secret of what she thinks of a certain presidential candidate.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

At the risk of belaboring the obvious, these are remarks beyond imagining in anything other than frightening times.  They simultaneously communicate who she wants to lose the election, her feelings about the depth of the impact on the country were Trump were to win, the fact that it would have a huge significance for the court, the fact that this impact would last for a very long time, and the sense that at least for her family, watching it up close would be unbearable.

That is heady stuff.

Yet, almost a day later, no rebuke from a fellow justice, no statement of limitation from the Court press office, no statements of outrage from Republican senators, no demands for impeachment from the right.

Some of these will surely come, and perhaps part of the apparent quiet can be explained by the heavy focus on the shootings last week, and by Trump’s managers trying to keep him under wraps, which may also have inspired them to try to keep the surrogates quiet too.  Moreover, that Scalia and Alito have been somewhat loose in their comments too — but not nearly as much as Ginsburg was here — may have inhibited reaction somewhat.

But it is hard not to imagine how the media (and many of us) would have reacted  if, for example, Justice Alito had implicitly threatened to leave the country if Clinton became president, or if Justice Thomas had said he did not want to think about the decades long impact on the Court of a Clinton presidency.

I think the explanation for the silence may be that it reflects the quiet conspiracy of the elites that a Trump presidency just can not be allowed to happen.  Who knows, maybe Ginsburg even cleared her remarks with Chief Justice Roberts, or more likely gave him the opportunity to dissuade her.  Can you imagine the Chambers or Conference discussions among the Justices about the election?

In any event, this has to be a hint of what more might be to come, from everyone from the Chamber of Commerce to retired senior military officers, to our former presidents,  if in late October a Trump victory seems a real possibility.


The Signs to Look For Dictatorship In a Trump Presidency

While it is easy to be glib about Hitler-Trump comparisons, it is also totally appropriate to think about what the signs might be that a Trump Presidency was turning into a dictatorship.  (See NYT articles on constitutional scholars’ concerns.)  Moreover, it would also be appropriate to look for, and publicize the things he is already doing or saying that might indicate a willingness to take those steps.  Also of interest, whether these things were previously being done by other politicians.  More importantly, perhaps, is the question whether a US president could do those things, or rather what checks and balances would have to be overcome.

I have to admit that I started this list expecting to reassure myself how far even a Trump Presidency would be from such a situation.  Actually, however, he seems, at least rhetorically, to have taken first steps on almost all these paths.  To be a bit less frightening, I have therefore split them into two classes: “First Signs” and “Tipping Points.”

“Tipping Points” being the ones from which there is no return.  Most of them represent fundamental destruction of our system of checks and balances.  “Tipping points” usually require governmental as well as political power.

Sadly, we are already seeing most of the “first signs,” most of which do not require governmental power.

I.  First Signs

Attempts to Intimidate the Media

Obviously, a truly free media is critical to a democracy.  While some would argue that he does not really intend to intimidate the media, that in fact he wants and needs what can be perceived as their hostility, it is unarguable that he engages in behavior that is objectively intimidating.  Perhaps worst is the encouraging of physical fear in journalists, and the control over credentials (not limited, sadly to the Trump campaign, but very different in his overall context)

Ignoring of Legislative Mandates and Conditions

I am not sure that this one should not be listed as a “tipping point,” except that so far he has no executive power.  He has certainly threatened Paul Ryan.  I would think that counts. (No comment on what kind of protector of the Constitution Ryan has proved to be here.)

Demonization/Dehumanizarion of Political Opponents

No doubt about this one.  From ncknames to insults, to threats (e.g on sending Clinton to jail.)

Failure to Protect Minorities/Freedom of Speech

Deportation and exclusions, racial derogation of judges, threats on Washington Post owner, the list is endless.

Blaming Problems on Unpopular Groups

The analytic problem here is that he blames problems on almost everyone, even majority groups (like women), but his pattern is to attack those against there is already a pattern of public hostility.  Fanning those flames is the essence of demagoguery.

Attacks on the Legal Profession?

Interestingly, we seemed not to attract his ire, even though we are unpopular.  He focuses on judges, and the laws, not lawyers.  It may have something to do with how many he must rely on given the massive number of law suits he has been involved with.  So, lawyers are powerful and unpopular, and he leaves us alone.  What does that mean?

Does it have anything to do with our profession’s relative silence on Trump?  (Interestingly, it appears that the legal profession did not take on Hitler’s rise to power, although there was heroic resistance from some after the event. I am no expert on this, so would welcome correction.) It may be that the above linked NYT article is the beginning of a change.  It will be interesting to see if we are now honored with attacks.

II.  Potential Tipping Points

Establishing Personal Paramilitary Outside the Chain of Command

This is truly a frightening possibility, which if achieved, essentially could put him beyond control by all  the other institutions of our society.

We do know that he has a far tougher internal security system that most candidates, and is totally used to getting his way.  Moreover, his contempt for recognized constitutional limitations on the military has to be seen as a strong warning sign.

Use of Systematic Violence by Supporters

We see this already, as well as a willingness to encourage it.  If nothing else, it shows an absence of any kind of limits or constraints.  Watch for this for the warning that he sees social disintegration as an acceptable price (or perhaps benefit) of his keeping power and getting his way.

Use of IRS and Other Government Institutions to Intimidate and Punish

We saw this under Nixon, and I think that is the real reason that the system ultimately moved against him.  Particularly unacceptable to the corporate elite was the contribution shakedown.  Interestingly, it may have been this that resulted in limited corporate opposition to 1970s campaign finance reform.  The reform was a protection for corporations.  That lesson is lost.

Given the already explicit threats to people like Bezos, he has already make clear his willingness on this one, and maybe thats why so much of the non-party corporate elite is getting nervous.

Extra-Judicial Arrests

Game over, with the foundation set by W.

There is, of course, a difference between fighting against writs of habeas corpus in court, and actually refusing to obey them when granted.

Ignoring Court Orders

Again, there’s a difference between a “signing statement,” and an ultimate refusal to obey a court order that such a statement is invalid in context.  But its hard to imagine a President Trump not at least flirting with the threat of not obeying court orders, given his record of trying to de-legitimate courts.  Even the threat would be damaging beyond imagining.  Contrast Nixon: “This President obeys the law.”  (Look at this article by, of all people Robert Bork (who fired Cox) talking about Nixon Counsel Wright: “Nor was Haig thrilled with Wright’s flamboyant statement to the district court in handing over the subpoenaed tapes, when he asserted, “This president obeys the law,” leaving the question of which president didn’t obey the law unanswered.”  I hope we never get our answer to that question.

Supreme Court Packed With Personal Allies

OMG.  Do you really feel comfortable relying on Mitch McConnell to prevent this?  Such a full switch would mean the end of all the protections implicitly relied upon in the above analysis.

Its good to see that in the last few days there has started to be serious attention to these threats.

p.s.  The Guardian has and article with a number of historian views on issues related to this.