Donald Trump’s judicial chickens have come home to roost, and they are laying some perfectly legal but horribly misshapen eggs. Trump, with the help of Leonard Leo and the Federalist Society, and then Senate Majority Leader Mitch McConnell, approved a record number of federal judges, not only to the Supreme Court (Kavanaugh, Gorsuch, and Barrett), but to federal circuit and district courts.
Trump departed from a long tradition of listening to the American Bar Association’s recommendations as to who is actually qualified for these demanding and intellectually rigorous judgeships. More than a few of his appointees were rated as unqualified by the ABA.
For a 2019 readout on a number of judges (and Justices) pushed through by Trump and McConnell, see this post from Huffington, Unqualified and Ideological: A Guide to Trump’s Worst Judges.
For individuals and organizations adamantly opposed to abortion of any kind, or to LGBTQ rights of any kind, one of the main “go to” judges is Matthew Kacsmaryk, the sole federal district court judge in Amarillo, Texas.
“Forum shopping” is a venerable tradition among lawyers representing plaintiffs in federal or state court; every plaintiff wants a judge that is “sympathetic” to their cause. The right wing has found that filing in Kacsmaryk’s court for any of its favorite causes is almost a sure-fire bet.
The impact of Kacsmaryk’s decision to ban mifepristone –– a drug long approved by the FDA for what might be called chemically induced abortions –– extends far beyond the borders of Texas, and has national effect, even in states where abortion remains legal. (Reminder: Justice Alito’s opinion in Dobbs, over-ruling Roe v. Wade, essentially claimed that the question of abortion would be left to the states. Evidently, not so much.)
As Ruth Marcus of the Washington Post observed,
“In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.”
“Even in states where abortion remains legal. Even though study after study has shown the drug to be safe and effective — far safer, for instance, than over-the-counter Tylenol. Even though — or perhaps precisely because — more than half of abortions in the United States today are performed with abortion medication.”
The Alliance for Hippocratic Medicine was formed in 2022 in Amarillo, presumably to bring lawsuits before Judge Kacsmaryk. But, given the Supreme Court’s fairly strict standards on “standing,” why would a non-profit organization be able to claim the kind of “tangible injury” that the Court has typically required to say that there is a “case or controversy” that needs judicial resolution?
As noted by Jonathan Adler in a blog on the Volokh Conspiracy, the standing issue is not the only procedural hurdle that Kacsmaryk let slide. As Adler notes, there are “at least four problems with the plaintiffs’ suit.”
The plaintiffs’ theory of standing is irreconcilable with Supreme Court precedent.
The statute of limitations has expired on plaintiffs’ challenge to the FDA’s approval of mifepristone. The plaintiffs claim that the FDA “constructively reopened” that approval in 2016, thus restarting the statute of limitations, but that’s clearly wrong.
The plaintiffs did not exhaust their claims, even though a regulation explicitly required them to do so.
Although the plaintiffs claim that the FDA’s actions are contrary to the Food, Drug, and Cosmetic Act (FDCA), the plaintiffs have failed to identify any particular provision of the FDCA that the FDA has actually violated.
Kacsmaryk ignored all of that to get the result that he was chosen to deliver. Of course, the FDA can appeal Kacsmaryk’s ruling, but that just puts it in the hands of the Fifth Circuit Court of Appeals. But that Court now has a growing reputation as the most “conservative” of the Circuit Courts.
Writing in The Guardian in 2021, David Smith noted that “one Fifth Circuit judge publicly mourned the “moral tragedy of abortion.” Another suggested that same-sex marriage “imperils civic peace”. A third tweeted negatively about Hillary Clinton using the hashtags #CrookedHillary, #basketofdeplorables and #Scandalabra.”
“James Ho, Stuart Kyle Duncan and Cory Wilson are among six judges appointed by former president Donald Trump to the US court of appeals for the fifth circuit, skewing one of the most conservative – and influential – courts in America even further to the right.”
If many U.S. citizens are concerned that the federal courts have become politicized, they have their poster children in Kacsmaryk and the Fifth Circuit.
God save this nation and restore honorable courts to be in session.
The many death threats to public officials are] one of the more disturbing realities of our time. Most of these people, often election officials or public health officials, are trying their best just to do their duty. But the threats continue, and have escalated. In brief, sadly, many of these threats are “perfectly legal.” I’ll explain why.
First, though, let’s check on how these threats have become a kind of epidemic amidst the pandemic.
In USA Today, journalist Dennis Wagner notes that escalating number of death threats to public officials:
Anyone making anonymous threats cannot be prosecuted or sued, but some threats are not anonymous. For example, take far right commentator Josh Bernstein.
“Let me tell you something, you sick, twisted garden gnome,” Bernstein says in the video below which was posted by the watchdog group by Right Wing Watch.
“Okay? Our rights don’t come from you. They don’t come from the NIH, they don’t come from the Center for disinformation control, they don’t come from the Wuhan Health Organization, and they certainly don’t come from this fraudulent extremist authoritarian regime government, either,” Bernstein declared, referring to the National Institutes of Health, and apparently the CDC , the World Health Organization, and the Biden administration.
“They come from God. That’s where they come from, and not you, or any government, or any intel person or agency is going to do anything about it,” he warned.
“You know, I’ve always said Patrick Henry had it half right: ‘Give me liberty or give me death.’ Bullshit. Give me liberty or give you death. That’s right. Signed, sealed and fucking delivered. So all I got to say about that. Tread lightly.”
So, I wrote to Wagner, wondering if this clear death threat was protected by the First Amendment. He replied that it was “political speech,” and thus protected. In one article, Wagner wrote: “But legal experts say prosecutions are rare because of the difficulty deciding what counts as a true threat and court rulings meant to protect free speech.”
I am researching this now, but I can’t believe that “the Founding Fathers” appreciation for a free press and a robust public debate would embrace threats like these. But, for now, they are “perfectly legal,” do nothing to further serious policy debate, and are beyond moral bankruptcy. So, again, what we find is atrocious behavior that is “perfectly legal. . . but wrong.”
We often ask, “Why can’t Congress get anything done?” Part of the answer is that in the U.S., there
have usually been only two parties, and bi-partisanship seems to have ebbed
since the three decades after World War II.
We’ll return to that by and by, but first let’s look at the structural
reasons for the two-party system in the U.S. today.
The U.S. Constitution creates a federal government based on
the power of the states to create such a government. The Electoral College is a reflection of that
basic truth: there is no federal government except by the creation of one by
the states that ratified the Constitution in 1789.
For sending delegates to the Electoral College, which meets
in December of the four-year election cycle after the November election, most
states choose to have a winner-takes-all system rather than apportioning their
votes based on the percentage of popular votes in the state.
The Washington Post offered a good primer two years ago:
As the Democrats lost Presidential elections in 1980, 1984
(Reagan’s re-election) and 1988 (Dukakis lost, and George H.W. Bush won), a new
kind of Democrat (middle of the road) emerged: Bill Clinton, who promised to
end welfare as we know it, who de-regulated finance to a great extent, and who
only won because Ross Perot’s candidacy drew votes from ‘the right’ away from
Bush. Clinton was never regarded as
legitimate by the GOP because of that, and the knives were out early on. As this TIME magazine report shows, the
Clintons made fairly easy targets:
“When caught, they have often justified their lapses with a
characteristically Boomer self-righteousness, demanding absolution by invoking
their idealism. Alice Roosevelt Longworth said President Warren Harding wasn’t
a bad man, just a slob; the Clintons have been slobs, too. The march of
mini-scandals in the White House was exhausting: the Whitewater financial
shenanigans; the cover up after the Travel Office firings; the documents flying
out of Vince Foster’s office following his suicide; the
mysteriously reappearing Rose Law Firm billing records; the crass push for cash
in 1996 which elicited shady Chinese and Indonesian donations; the lies about
Bill Clinton’s sexual affairs; and the final outrages of too many unseemly
presidential pardons and too much furniture shipped from the White House to
their two new homes. Each scandal was not as terrible as opponents tried to
make it but not as benign as the Clintons claimed.”
Mainly, the GOP regarded the White House as their house, and
Clinton as a usurper. But he was
re-elected without a third party candidate, in 1996, running against Bob Dole,
a distinguished person and a relative moderate (by this era’s standards).
The winner take all issue was front and center in the 2000
election, with the victory going to George W. Bush over Al Gore over who got
the big electoral prize in Florida. The
race was very close there: less than two thousand votes made the difference.
If the Electoral College votes had been awarded
proportionally, the two would have split the vote. (But, see below, Bush would
still have won. Surprisingly, though,
Romney would have won in 2012!) Other
than Maine and Nebraska, no state seems to want to split its electoral votes
for fear of being irrelevant to Presidential campaigns. Colorado? We considered splitting the electoral votes
in 2006, but the proposal lost by a wide margin.
At the Congressional level, “safe seats” for both parties
continue as “gerrymandering” allows for post census re-jiggering at the state
level to draw Congressional districts, subject to fairly lenient federal
legislation such as the Voting Rights Act.
This means that a lot of “out of state money” gets focused on a few
Congressional races (e.g. Jason Crowe, in Aurora, displacing Mike Coffman in
the recent election), and the whole idea of local representation goes out the
window. And, in the House and Senate, it’s all or nothing as well, with cloture
being tossed out in the Senate (the 60 votes needed for confirmation of, say, Supreme
Court nominees is now history), and committee chairs being decided by which
party has the majority in the House or Senate. The rank partisanship of Newt
Gingrich in the 1990s launched a new era of scorched earth politics between
Dems and the GOP.
“During his two decades in Congress, he pioneered a style of
partisan combat—replete with name-calling, conspiracy theories, and strategic
obstructionism—that poisoned America’s political culture and plunged Washington
into permanent dysfunction. Gingrich’s career can perhaps be best understood as
a grand exercise in devolution—an effort to strip American politics of the
civilizing traits it had developed over time and return it to its most primal
essence.” See:
Prior to Newt Gingrich, the partisan talk shows like Rush
Limbaugh’s, the Tea Party movement and the not so “fair and balanced” emergence
of Fox News as a clearly partisan supporter of anything Republican, there was
more bipartisanship. This was after World
War II, where the Democratic Party included segregationists, the result of
post-Civil War alignments of Southern Democrats against Republicans, the party
of Lincoln. Southern Democrats were in
the same party as New England, Midwestern, and Western democrats, giving that
party a more socially conservative, pro-hawkish tone. (For many years, Southern
men have been notably more active as volunteers for military service.) After
President Johnson signed the Civil Rights Act of 1964, the Democratic Party
lost considerable ground in the South. As the Economist wrote in 2010,
“Despite brief flashes of strength during the presidential
elections of Jimmy Carter, Bill Clinton and Barack Obama,
Democrats—particularly white Democrats—have been losing ground in the South for
half a century.”
Some of the re-alignment of the parties also began after 1964
with the campaigns of 1968, where Richard Nixon campaigned on behalf of the
“moral majority” that objected to the civil rights movement, feminism, the rise
of drug use in the youth culture, and the end of compulsory Christian prayer in
schools. (The so-called “War on Christmas” is part of a rejection by many of a
supposedly ruling secular elite, a rejection that embraces repelling anything
Islamic from U.S. culture and, somewhat hysterically, passes laws that forbid
the emergence of Shari’a law in the U.S., a completely un-necessary move that
somehow satisfies some citizens that their legislators are protecting them from
a Muslim “invasion.”)
(For the so-called “War on Christmas,” see https://www.dictionary.com/e/what-is-the-war-on-christmas/)
All this is part of the culture wars that started in the 1960s,
with school prayer and abortion rights being major triggers. After the Roe v. Wade decision in
1973, pro-life people have fought consistently to limit abortion rights, and
made it a primary issue in Presidential campaigns to have Supreme Court
nominees reverse Roe v. Wade (which offered limited Constitutional
protections during the “first trimester” from state laws that criminalized
doctors who performed abortions and women who received them).
The culture wars of the 1960s have never been entirely settled.
“God, Guns, and Guts” made America Great, read an often seen bumper sticker
about 20 years ago. “True patriots”
would heed the call: no limits on guns, prayer in school, no ungodly abortions,
and no limits on what America could do in terms of fighting for freedom and
democracy world wide. More than the
Democratic party, the Republican platforms and candidates have had broader
appeal to this group. The latest meme
that fits this kind of “freedom” theme is that the Green New Deal will mean
that if Democrats take over more than the House of Representatives, your right
to eat hamburger will be nullified.
After Gingrich and the Tea Party and “birther” movments that
denied the legitimacy of Barack Obama as a U.S. citizen (Trump was a
significant proponent of that), we can noted that hostility between the parties
mounted during the Obama years; among other things, Sen. Majority leader
Mitch McConnell held up the appointment of Obama’s Supreme court nominee,
Merrick Garland. That was a clear
departure from tradition.
Actions have consequences.
Among those consequences are residual “hard feelings” between the GOP
and Dems, and the loss of collegiality among Senators.
That wasn’t what the Framers designed. But it’s where we are
today. All of this, of course, is perfectly legal, but no one outside of D.C.
believes in his or her heart that it’s morally right. It is not. As Brain used
to say to Pinky, “It’s repugnant.”
The U.S. President’s use of the pardon power is plenary, and
is built into the U.S. Constitution. Article
II, Section 2 of the U.S. Constitution bestows upon the president the power to
“grant Reprieves and Pardons for offences against the United States,
except in Cases of Impeachment.” The link just below provides some useful
history.
Historically, the king, or the queen ––as “sovereign” over
the lands and people that they ruled–– exercised the pardon power. In the famous case of Queen v. Dudley and
Stevens, the English survivors of a ship’s sinking in 1877 were prosecuted
for killing a ‘cabin boy’ on day 17 of their ordeal, after the boy had been
lying prostrate and semi-conscious from drinking seawater. The defendants and one other adult ate the
remains of the boy, and lived to be rescued a few days later.
After a trial, the judge found that Dudley and Stevens would
not have survived except for having killed and eaten the cabin boy;
nonetheless, they were convicted of murder, and sentenced to die. They were
later pardoned by Queen Victoria, as the facts of the case were unusual, and
the defendants seemed to have engaged public sympathy.
One of the best articles on the pardon power was scribed in
2018 by Mark Greenberg and Harry Litman. In it, they say:
“The pardon is an exceptional remedy but one with an
important role in the justice system. In the
words of Justice Oliver Wendell Holmes, “A pardon in our days
is not a private act of grace from an individual happening to possess power. It
is a part of the constitutional scheme.”
“The pardon power, then, is not a whimsical add-on but an
integral feature of the criminal justice system. It has deep links to moral
values—think of the biblical injunctions to temper justice with mercy and to
forgive those who trespass against us. In this spirit, Alexander Hamilton wrote
in Federalist 74:
“The criminal code of every country partakes so much of necessary severity,
that without an easy access to exceptions in favor of unfortunate guilt,
justice would wear a countenance too sanguinary and cruel.” The use of the
pardon power should be guided by society’s highest aspirations of justice,
mercy and forgiveness.
But as used by U.S. Presidents in recent years, and as used
by President Trump so far in his first term as POTUS, the use of the pardon
power has been corrupted from these high ideals.
Many will remember President Ford’s pardon of Richard Nixon,
to get the whole “Watergate” business behind us. His
decision, as reported in the New York Times, was a “shock” and an “outrage” to
many who wanted to see Nixon held to account by the U.S. legal system.
Others may recall President Carter’s pardon of Vietnam War
era draft dodgers, or George H.W. Bush’s pardon of Casper Weinberger for his
involvement in the Iran-Contra Scandal. What seems different about the first
President Bush’s pardon is that he was directly involved in the secret arms for
hostages deal worked out by officials in the Reagan Administration. (Bush was Reagan’s vice president).
This strongly suggests that in exercising the pardon power,
President Bush may have had a conflict of interest: the pardon would benefit
him, as well as the person pardoned. According to the New York Times article,
above:
“But in a single stroke, Mr. Bush swept away one conviction,
three guilty pleas and two pending cases, virtually decapitating what was left
of Mr. Walsh’s effort, which began in 1986. . .
Mr. Walsh bitterly condemned the President’s action,
charging that “the Iran-contra cover-up, which has continued for more than
six years, has now been completed.” Mr. Walsh directed his heaviest fire
at Mr. Bush over the pardon of Mr. Weinberger, whose trial would have given the
prosecutor a last chance to explore the role in the affair of senior Reagan
officials, including Mr. Bush’s actions as Vice President.”
Many followers of Presidential pardons will recall Bill
Clinton’s last minute pardons of “the
fugitive financier” Marc Rich. It seems that Rich’s wife was a major
contributor to President Clinton’s political campaigns and the Clinton
Foundation. Rich himself had a net worth
of $30 billion and had made extensive contributions to Israeli causes, and a
large network of people had joined in the effort to persuade president Clinton
to grant a pardon.
But President Trump’s use of the pardon power thus far puts
him in a league of his own. Consider some
of his notable pardons thus far: Scooter
Libby, Dinesh D’Souza, and Joe Arpaio. The Arpaio and D’Souza pardons are far outside
the realm of regular procedure and rationale for pardons. The regular process involves the submission
of paperwork to the Justice Department, asking for pardon, and substantively
(as Greenberg and Litman explain), the reasons for a pardon fall into three
categories.
“At
a very general level, there are three broad categories of cases: those in which
there was, from the start, no reason for punishment because the conviction or
punishment was unjust; those in which the reasons for punishment are no longer
applicable, or in which there is special reason for forgiveness; and—a more
dubious category—those in which the reasons for punishment are outweighed by
the public interest.”
Ford’s
pardon of Nixon, although controversial, presumably falls into the third
category. Trump’s pardon of former
heavyweight champion Jack Johnson is justified under the first category: his
conviction under the Mann Act was vindictive and motivated by racism. The
pardon of Lenny Bruce granted by the Governor of New York was for convictions
based on comedy routines that are “now recognized as valuable social critiques.” (Greenberg and Litman)
By contrast, the pardons of Joe Arpaio and Dinesh D’Souza
were essentially pokes in the eye to “liberals” who disliked Trump, and these
pardons did not follow established procedures. Those procedures include a
system of rules and procedures administered by the Justice Department’s Office
of the Pardon Attorney. These rules are
advisory, and do not bind the President, but have been followed by most
Presidents. The rules include various time limits –– such as applying no sooner
than five years after release from confinement, the need to account for the
petitioner’s acceptance of responsibility, remorse, or atonement for the
offense, character witnesses, and more.
Applications reach the White House counsel’s office, where they are
examined and a recommendation is made.
The pardon attorney and the White House counsel solicit the views of
various stakeholders in the justice system, especially law enforcement
officials.
As Greenberg and Litman note, “Indeed, by these criteria, D’Souza is a paradigmatic case of
an undeserving applicant. Not only had he not shown remorse but he immediately
waxed triumphant about the pardon, claiming that the conviction had been a
“vindictive political hit”—a partisan attack by the Obama Justice Department
motivated by President Obama’s anger about a movie D’Souza had made.” They continue: “The main
motivations for the pardon appear to have been gratitude for
D’Souza’s help in promulgating a favorite Trump storyline of “deep state”
corruption at the FBI, and the desire to strike at Preet Bharara, a political
opponent of the president who had prosecuted D’Souza while serving as the U.S.
attorney for the Southern District of New York and whom Trump later fired.”
Joe Arpaio
–– the self-proclaimed “toughest Sheriff in America” –– was jailed for criminal
contempt of court. A federal judge found that Arpaio’s office was continuing
its illegal immigration “roundups,” based on racial profiling of Latinos,
defying an injunction entered by another federal court. There was no pardon application
pending when Trump granted the pardon, and no one consulted the Department of
Justice, “whose institutional credibility was on the line in light of its
findings about Arpaio’s racial profiling and other misconduct.”(Greenberg &
Litman). Indeed, Trump has
not even appointed a permanent pardon attorney
in his administration. Finally Arpaio had no qualifying characteristics
specified by the pardon guidelines. Not only had five years not elapsed since
his release, Trump pardoned him while he was awaiting sentencing.
“Scooter” Libby was convicted in 2007 of lying to investigators and obstruction of justice. IN the run-up to the Iraq invasion during the Bush-Cheney years, a key question had been whether Saddam Hussein had “weapons of mass destruction.” Covert CIA officer Valerie Plame was married to Ambassador Joe Wilson, who contradicted the Cheney account of “yellowcake uranium” being obtained by Saddam Hussein from Niger, in, among other places, an Op Ed in the NY Times.
In
apparent retribution for Wilson’s public statements, his wife’s cover was blown
deliberately, possibly at Vice President Dick Cheney’s direction. Libby was Chief of Staff to Cheney at the
time. Just like Trumps pardons of Arpaio
and D’Souza, Libby’s pardon came out of nowhere. No pardon application was
pending. Libby’s sentence had already been commuted by President George W.
Bush, and his law license had been restored.
Wilson and Plame had this to say about the pardon:
Many
commentators agreed that Trump was trying to send a message to anyone being
investigated by public officials: you
can lie and be pardoned, even if you are breaching national security interests. Several observers thought Trump was “sending
a message” to people like Paul Manafort, Michael Flynn, or even Michael Cohen.
As the New York Times reported in March of 2018, “Considering
the possibility of a pardon strategy is no mere academic exercise. There are
many indications that President Trump has contemplated employing it. Last fall,
the president’s attorneys reportedly broached pardons with attorneys for former
Trump campaign manager Paul Manafort and former Trump National Security Adviser
Michael Flynn. This March, immediately following FBI raids to gather evidence
from the President’s Trump Organization associate and former lawyer, Michael
Cohen, the president issued a pardon to former Vice President Cheney aide I.
Lewis “Scooter” Libby, who was convicted of obstruction of justice and perjury
charges stemming from an earlier investigation. Many interpreted that pardon as
a signal that President Trump is open to clemency for individuals convicted for
lying under oath.”
Rudy Giuliani, known for making odd statements in the
President’s defense, opined after Manafort was sentenced to jail that the
Mueller investigation “.
. .might get cleaned up with some presidential pardons.”
In effect, the occupant of the highest office in the land
has and is perverting the pardon power to make political points and perhaps
even to protect him from ongoing investigations that might lead to impeachment
or to prosecution after he leaves office. Trump may be within legal boundaries
here, but has far eclipsed others in abusing the pardon power. His use of the
Presidential pardon power in several cases already is a clear abuse of his
office and the rule of law.
