Friday, December 7, 2018

The Case for Decriminalizing Marijuana in Minnesota–The Right and Wrong Reasons for It and What it Means to Do So

Is it time to legalize the recreational use of marijuana in Minnesota?  The answer may be yes, but when and how it is done in Minnesota is a critical issue.
Two parties in the November 2018 elections received  major party status on the promise of legalizing marijuana.  Governor-elect Tim Walz is apparently supportive of the same along with several legislators.  State Fair and other polls in Minnesota too support legalization of its recreational use, paralleling national polls placing more than 60% of the American public favor this.  The time seems right to act.
In many ways, the time is more than ripe.  Twenty-five years ago I was among the first to argue for decriminalization of drug use.  In “Rethinking Drug Criminalization Policies,” 25 Texas Tech Law Review 151 (1993), I argued that the then three decade long war on drugs had  failed miserably and that it was time to shift away from a drug policy that criminalizes its use to one which treats it as a public health problem. That thesis was true then, and even more so now.  My argument then addressed not simply marijuana but all forms of illegal drugs because while there is no evidence that the use of marijuana poses a public health problem, other drugs do.  Not a problem then, or at least not apparent, were the health dangers arising from opioid use which is now an epidemic, posing a far greater problem than the recreational use of marijuana.  Add up the costs of police enforcement, court time, and other expenses, one can argue that Minnesota would save significant resources in legalizing recreational marijuana.  In addition, as I pointed out earlier this year in a Huffington Post article, the criminalization of its use has failed.  Its prohibition has not worked and it has produced  racial disparities with lasting effects on society, including Minnesota. 
Marijuana use is effectively already being decriminalized in Minnesota.  Over time more and more conditions are being allowed under the medical marijuana law, including most recently Alzheimer’s Disease.   That law has accommodated Minnesota’s gradually to it use, but of course there is also a generational shift going on that does not shun its use.  One can make a libertarian argument for its recreational use that parallels John Stuart Mill’s On Liberty arguments that it is not the business of society what one does so long as it does not affect others.  However, the stronger arguments to make are that legalizing its use is consistent with the “One Minnesota” Walz promise to address disparities that divide the state.  Criminalizing recreational marijuana use is supported by a majority of the state and its enforcement has racially arbitrary impacts.  Additionally, legalizing it saves money, allowing the state to concentrate its resources are more pressing drug-related issues such as the opioid crisis, domestic and sexual abuse associated with alcohol use, and the growing  problem of e-cigarettes.  Decriminalization should be sold along these lines, suggesting legalization  allows for the state to address more pressing problems.
Finally, many will argue that a legalize strategy will help Minnesota in two other ways.  First,  a “legalize, regulate,  and tax” policy will bring in new revenue to the state.  Yes this is the case, but one should be wary about projections of such revenue which are often oversold.  Second, the state should not get too dependent on one revenue stream such as this–lotteries point to this.  Third, as seen in the case of Colorado, legalize, regulate, and tax poses administrative complications for the state that need to be addressed.  Marijuana is still illegal under federal law and one cannot use banks.  Marijuana sales are a cash economy for now and good planning is essential to making it work.  Finally, along this lines, moving from medical to recreational use of marijuana will have an impact on the former businesses, and one must think about that.
A second claim for legalization is its impact on the Minnesota economy.  It may well help in many ways, ranging from agriculture to retail businesses.  But again, one needs to think in terms of how these new businesses fit in with existing ones in the state. This gets at what is meant by decriminalization or legalization.  Is legalization simply about personal use or does it mean commercial sanction?  This is a policy question not clear now.
Finally, despite popular support for decriminalization, will this be an easy bill to pass this session?  Do Democrats and Walz want to define their political agenda as starting with marijuana  or do they want to start with the budget, the bonding bill, federal tax conformity, or infrastructure?  Legalization is a popular issue with urban liberals, but it is a top priority with suburban female voters who put the DFL in charge?  What are the priorities, will the fight over marijuana be contentious, and what message will be sent by making it a priority in 2019?  These are all good questions that need to be examined.
Overall, the time to legalize is past due, but how it is done and exactly when, and how it is sold, are the real questions that remain.

Thursday, December 6, 2018

Partisanship and Petty Politics in Wisconsin

The power grab by Wisconsin Republicans to limit the incoming authority of the Democratic
Attorney General and Governor is about pettiness and being a sore loser.  But it is not the only instance of such pettiness–Michigan too is experiencing this, as did North Carolina a few years ago when the Democratic governor ousted the Republican.   Pettiness seems to be de rigueur, inspired by Donald Trump’s brand of politics, violating two norms, one informal, the other constitutional.
Pettiness and being a sore loser is not a unique feature of contemporary American politics–it tradition goes back perhaps as early as 1800.  Then, when Thomas Jefferson and his fellow Democrats took control of the White House and Congress and ousted John Adams and the Federalists, the latter retaliated with a series of late minute acts that included judgeships to stack the  courts.  This resulted in the appointment by John Adams of a judicial commission to William Marbury, who, while confirmed by the Senate, did not have his judgeship delivered in term and which Thomas Jefferson refused to honor.  The dispute resulted in the arguably the most important and famous Supreme Court case in American history–Marbury v. Madison–which established the principles of judicial review, constitutional supremacy, and separation of powers as fundamental values in American law and politics.
The incidents surrounding Marbury are twofold important.  First, the 1800 elections were arguably the most significant in American history, establishing a pattern of peaceful transition of government power from one party to another.  A hallmark of democracy is the acknowledgment by one party that it has lost and its willingness to give up the reigns of power peacefully to the opposition.  Yes, in 1800 the Federalists were sore losers, but power transferred without gun shots and the election established the unwritten norm of how parties ought to observe one another–not as enemies or criminals to be locked up–but as rivals with whom you disagree but nonetheless will not seek to illegitimately undermine.
Throughout American history losers may grumble that they have lost an election but they have not generally sought to change the rules of the game to undermine the incoming winners.  Moreover, they have generally not   sought to entrench themselves in power, either directly by trying to undermine the election results directly or indirectly. Unfortunately that has changed.  Mitch McConnell’s announcement after Obama’s victory in 2008 to do everything he could to oppose him is an example of what Jacob Hacker and Paul Pierson describe in their Winner-Take-All-Politics.  Politics has become a zero sum game–I win or you win’‘and not how to figure out how to create a “win-win” game that is the product of compromise.  Winner-take-all-politics is a product of the intense polarization and partisanship that has emerged in American politics, personified most perfectly in Donald Trump’s intense tribalism of divide and conquer politics, best captured in the “Lock her up” mantra against Hillary Clinton.  Largely Trump’s strategy was rejected in 2018, but many who thrived on it, as in Wisconsin, are unable to accept losing, view the opposition as evil.
Such manicheism is not confined to Republicans.  There are many Democrats similarly who view Republicans and Trump as mortal enemies.  Many see themselves as part of a resistance, almost romantically comparing themselves to freedom fighters in France during WW II taking on the Nazis.  Yes, the special prosecutor may find laws broken and persons worthy to be indicted, but one might take a page from Abraham Lincoln’s Second Inaugural speech asking for “ malice toward none; with charity for all.”
But if Wisconsin represents a breaking of the unwritten tradition of respecting election results and seeking reconciliation that the incidents surrounding the 1800 taught, it also violates another–the concepts of constitutionalism and separation of powers.  What the Wisconsin legislature is doing  arguably violates that state’s constitution.
The concept of separation of powers is located with the three vesting clauses of the Wisconsin Constitution, specifically  Art. 4, § 1; Art. 5, § 1; Art. 7, § 2.     When it comes to the power of the governor, the state Constitution declares that “The executive power shall be vested in a governor.”  Art. 5, § 1 (Layton School of Art & Design v. WERC, 82 Wis.2d 324, 347, 262 N.W.2d 218, 229 (1978); State v. Washington, 83 Wis.2d 808, 816, 266 N.W.2d 597, 601 (1978)). According to the Wisconsin Supreme Court: “No branch of our government is subordinate to the others, no branch is to seize control over the others except as provided by the constitution and no branch may exercise power committed by the constitution to another” (State v. Holmes, 106 Wis.2d 31, 42, 315 N.W.2d 703, 709 (1982)).
  The test to determine whether a violation of separation of powers has occurred is whether actions by one branch result in the usurpation of powers of another branch (J.F. Ahern Co. v. Building Comm'n, 114 Wis.2d 69, 104, 336 N.W.2d 679, 695 (Ct.App.1983)).  A departure from a strict separation of powers is permitted so long  as the zone of shared powers of  one branch does not unduly burden or substantially interfere with another branch (In re E.B., 111 Wis.2d 175, 184, 330 N.W.2d 584, 589 (1983)).
Given this language by the Wisconsin courts, the question seems to be a matter of degree–how far can one branch go before it encroaches on the core functions of another branch?  Arguably, the Wisconsin legislature appears to be at this point with it efforts to limit the governor.  The question is what are the core executive functions vested in the governor and has the legislature  unduly burdened them?  Arguably, preventing the governor from withdrawing from law suits or changing other policies directly limit core functions, questioning the constitutionality of this move.
But what about the attorney general?  Article 5, § 3 declare the,” duties and compensation of the treasurer and attorney general shall be prescribed by law.”  This constitutional provision appears to give the legislature more authority to act to augment the attorney general’s authority than that of the governor.
So what are the remedies?  A federal law suit will not work because this is a matter of state and not federal constitutional law and the federal courts will generally not render a decision on state constitutions and what they mean.  Thus, the suit must be in state court. However, according to a Wisconsin Court of Appeals decision State v. City of Oak Creek, 223 Wis. 2d 219, 588 N.W.2d 380 (Ct. App. 1998), the attorney general does not have authority to challenge the constitutionality of statutes.  This decision would appear to foreclose a lawsuit, however there are reasons to think this decision is wrong and could be reversed by the Wisconsin Supreme Court.  But even if correct, the governor could hire a private attorney to bring suit, but given the current partisan line up on the Wisconsin Supreme Court,  Evers may not win were the issue to likely go there for resolution.  The legal option may be foreclosed, at least in the short term.
Instead, Evers and the Democrats option may be legislative next year, threatening to veto provisions that Republicans want if they do not change the law.  Additionally, while unsuccessful  in the past, threats of recall are possible, and, of course, with 2020 and then redistricting after that, the Democrats may have to rely on the electoral solutions to address the petty turn of sore losers in Wisconsin.

Sunday, December 2, 2018

Reflections on the Future Survival of the Donald Trump Presidency

The Trump presidency has always been a rocky and contentious one, but recent and coming events will try its soul in ways that have not previously been seen.  While repeatedly some speculate that Trump will not make it to the end of his term in 2021, realistically it would take a lot to change for him to be impeached, convicted of a crime, or resign.  What forces and events will impact his presidency in the coming months?

Trump Himself

The Death of President George Herbert Walker Bush points to a significant contrast in personalities and the weakness of Donald Trump as a person.  Bush’s death provides not just a retrospective on the 41st president’s legacy, but it speaks also to the deficiencies of the Trump presidency. 

Bush’s presidency illustrates many legacies–some good  and bad–but psychological temperament and style stand out.  Bush’s career in business and government–especially the latter as CIA director, UN ambassador, member of Congress, and vice-president before becoming president–point to someone with the skills, knowledge, and experience to lead the country.  Bush’s resume was one of understanding how Washington worked. It was also a resume that demonstrated a commitment to diplomacy, knowledge-based decision making, and  a respect for the processes of government.

Bush appointed knowledgeable and competent people to serve him, he approached the world, as in the case of the first Gulf War, with a sense of multilateralism and diplomacy that starkly contrast to what Trump displays.  Additionally, Bush, unlike Trump, was willing to accept responsibility for his actions and he made choices–such as correctly breaking his no new taxes pledge–that demonstrated real leadership and a willingness to compromise.

Whether many realize it or not, the passing of Bush will only highlight so much more the deficiencies of Trump and his presidency. 

Michael Cohen and the Looming Special Prosecutor Report

Perhaps the most significant event affecting the Trump presidency took place last week when Trump’s former attorney Michael Cohen pled guilty to lying to Congress.  It was not so much the lying that was the issue, but it was what the lie was about–efforts well into June 2016 to pursue a business deal with Russia.  Why is this significant?

Central to the special prosecutor’s investigation on Russian interference with the 2016 US elections and the role that the Trump campaign had in colluding with them has been ascertaining of motive.  By that, the issue has been to try to explain why Trump and his associates may have wanted to collude with them, or why they seemed even now unwilling to take a hardline with Putin or otherwise condemn the investigation.  The simple answer is that Trump had possible economic ties then and perhaps now with Russia that he did not want to reveal and which may have then and now continue to cloud his judgments as president.

Keep in mind that Trump this week did confirm much of the details of Cohen’s confession about a Russian Trump tower deal.  This fact no longer seems in dispute.  The deal now speaks to how the Trump business empire, his campaign, and now presidency are intertwined, and how there may have been interest or motive to collude with Russians to get a better economic deal for Trump.  There is a possible quid pro quo emerging.  The Russians did not want Clinton elected, Trump wanted a business deal and perhaps a presidency, the art of the deal suggests strike a deal so that everyone gets what they want.  This quid pro quo is perhaps the core of everything which has thus far unfolded, and it goes far beyond accusations that Secretary of State Clinton extended special deals to countries and those who were donors to the Clinton Foundation.

Democratic Control of the House

Democrats taking control of the US House is significant on multiple fronts.  They will pose a policy limit on Trump, they will also be able to do many investigations and perform the oversight of the executive branch and agencies that the Republican House never was willing to do.  But House control by Democrats also closely connects to the special prosecutor’s actions.

One must also read between the lines in the Cohen plea.  It is no surprise that special prosecutor Robert Mueller knows more than the media is reporting.  One can surmise that once the Democrats take control of the House in January Mueller will be able to release a report to them, even if he is fired.  There is little chance that Mueller will indict Trump even if the evidence supports it. Instead, he will follow the March 1, 1974 Justice Department Memorandum which then referred allegations of Nixon’s criminality to the House.  The same will possibly happen here.

One can probably expect the special prosecutor to indict more individuals, especially given Cohen’s plea.  One might also see Trump pardoning many individuals such as Paul Manafort who remain  loyal to him.  But even if all this occurs, the one-two punch of a special prosecutor’s report and Democratic House control will constrain the Trump presidency even more than it has already.

Mounting Personal Lawsuits

Trump faces numerous civil lawsuits in state and federal court that will continue to dog him, and they cannot be halted by presidential pardons or judicial appointments.  These suits involve sexual harassment issues, the Trump Foundation, his business dealings and how they tie into whether he violated the Constitution’s Emolument clause, among others.  President’s cannot issue self-pardons, especially in civil matters, and his authority does not extend to state courts where he cannot control appointments to the federal bench or the Supreme Court.

2020 Economic Slowdown

Perhaps the biggest wild card is the economy.  The US is in the middle of one of the longest recoveries and bull markets in history.  But there are many signs that the end is coming.
Internationally, there is a slowing down of world economic growth that will affect US exports.  Also, as a globally interconnected economy, the US will be impacted by what happens elsewhere.  Rising interest rates are impacting an already slowing down housing market that seemed until recently to be overheated. 

The Trump tax cuts, according to analysts, either had little impact on economic growth–especially when most of the tax cuts were taken as profits and not reinvestments–or they have run their course.  The trade wars are beginning to impact many US sectors, including agriculture and the auto industry (as seen by GM’s plans to close facilities), and  the tightening of immigration is leading to labor shortages.

Finally, the Trump administration has failed to address longer term structural problems with the US economy such as the significant racial and economic gaps tht limit opportunities for many, unequal economic development, decaying infrastructure, and an inability to deal with global economic issues such as the increasing competitiveness of China and other major economies. Throw into this also a  growing budget deficit that will force the US to borrow more money at higher interest rates. All told, the recent Wall Street stock jitters highlight what many see as a first or second 2020 economic slowdown that  will impact the presidential race.

But Will the Republicans Abandon Trump?

All of the above forces will serve as manor checks on the remaining Trump presidency.  But does that mean that Republicans in the Senate or his base will abandon him?  As of now there is little sign of that.   It would take a significant combination of the above events for that to happen and for there to be a serious chance of Republicans calling for impeachment, or for there to be support for challenges to Trump were he to run for a second term.  Trump remains more popular among his base than do the rest of the Republicans and until such time as his base leaves him one cannot foresee  this scenario.

Friday, November 30, 2018

When Republicans Were Progressives–A Story of a Different Party and a Different Era

Minnesota is a DFL state.  Republicans are conservatives.  These are assumed to be two political truths.  Yet both are subject to qualification and David Durenberger’s When Republicans  Were Progressive, is  a recent book which tells not just a story about Minnesota politics both also one about the transformation of Republican Party politics both in Minnesota and nationally.  It is story about a party that Durenberger would say he did not leave but which left him and its values.  But in telling this story he also writes a book that, while it should be taken as a warning by Republicans, is instead being criticized by many of them.
I have known David Durenberger since the 1990s when I was with Common Cause Minnesota. I always considered him an ally on campaign finance reform and ethics in government.  We have penned essays together on ranked choice voting, and I place him among the Republicans I grew up with, worked with, or  admired, including Jacob Javits, William Scranton, and Nelson Rockefeller.  I knew a Republican Party that embraced government as a partner with the people to solve problems.  It was a party that built higher education, fought the Cold War, supported the War on poverty, and  cared about the poor and middle class. This is the party that David Durenberger represents, and he wants to tell about this party in Minnesota politics.
A conventional story of modern Minnesota politics would begin on April 15, 1944.  It was then the Farmer-Labor Party merged with Democratic Party to transform it into the dominant party in the state.  Prior to then, the Republican party was the major party, with the Democratic and Farmer-Labor parties splitting votes, often unable to capture state-wide offices in Minnesota.  But the merger, affected by Hubert Humphrey, ushered in a new era of Minnesota politics, often seen as dominated by DFL figures such as Humphrey and son Skip, Orville Freeman and his son Mike, Walter Mondale and his son Ted, and other politicians such as Olaf Martin Sabo, Nick Coleman, Wendell Anderson, Rudy Perpich, Sandy Keith, Roger Moe, and Paul Wellstone, just to name a few.   This is the lineage connected to the 1970s Minnesota Miracle that changed tax, political, and social policies regarding education, transportation, and so much more in Minnesota. It is a Minnesota that defines itself as DFL and progressive.
But there is another side to the story and Durenberger tells it as party of an autobiography for himself, the Minnesota Republican party, and the state.  It is a story of how he as a Republican US senator were part of Minnesota history, and they too were once seen as progressives.  His book begins with Harold Stassen in the 1930s as governor helping to lead Minnesota out of the Depression.  It discusses Governor Luther Youngdahl seeking to address problems of racial discrimination in the later 1940s and 1950s, Elmer Anderson in the state legislature and as governor championing the plight of those with mental illness (or fighting for fair housing) in the 1960s, and others such as Bill Frenzel, Harold LeVander, Al Quie, George Pillsbury, Arnie Carlson, and David Durenberger himself as US Senator.
The story Durenberger wants to tell is that at one time the Republican Party looked very different than it does today.  Today’s Republican party under Donald Trump is one that mostly of older white males, evangelicals, located in rural areas who oppose taxes, immigrants, reproductive rights, and civil rights in general, that was not always true. It was a party, at least in Minnesota, that was a partner in leading many of the major reforms that made the state what it is today in terms of leader.  Durenberger wants this message to come out and it does in this book, but he also laments the changes that have transformed his party statewide and nationally
Reading the book one learns an amazing amount about Minnesota and Republican Party politics.  But the real value in the book is in asking a more fundamental question–What has happened to the Republican Party?  How could a party, once a 150 years ago be the party of Abraham Lincoln and civil rights, or of Teddy Roosevelt and environmentalism, be the party of Trump it is now?  For those of us who believe there is a need for at least two if not more responsible parties, who have many Republican heros, and who think the American politics would benefit from a new political realignment that moves us away from the current partisan polarization, understanding what has happened to the party that David Durenberger yearns for is an important question to ponder.  Clearly the Democratic Party embracing civil rights and identity politics, both parties ignoring the enormous economic consequences of deindustrialization, globalization, geographic sorting, technology, and the exploding  gap between the rich and poor are part of the story. 
But the Republican Party of Trump is one that plays on fear, anger, resentment, and an “us versus them” politics that has managed to tap into the most base of human emotions.  It is a party whose embrace of these issues that, while it may have won in 2016, it lost badly in 2018 (both in Democrats winning the US and Minnesota Houses, picking up many governorships, and getting far more votes for the US Senate than did Republicans despite the latter picking two seats) and is on a long term demographic extinction as the coming generation of voters (young, suburban female, and people of  color) identify as Democrats.  If the Republicans continue on the current trajectory, they will face increasingly difficulty winning statewide Minnesota elections and even victory in the legislature.
This is the message that Durenberger wants to communicate.    In a sense, When Republicans were Progressive is an apologia and a warning.  But in offering both the author talks not of a party he walked away from, but a party that walked away from its values.  Contemporary Republican criticism of the book confirms the very point Durenberger wants to make.

Monday, November 19, 2018

Sheryl Sandberg, Nancy Pelosi, and the Suburbanization of the Democratic Party

By now as all the post-2018 midterm elections have made clear, the Democratic Party’s blue wave was driven in larger part by female voters in middle class to affluent suburbs.  The question now to be answered is what will be the policy consequences of this?    Of course starting in January one will find out, with the question being will women do politics differently than men or will they conform to the rules of power that confront them?  The answer may be a little bit of both, but it is important to understand the perspective that the female suburbanization of the Democratic Party offers, and perhaps how the experiences of Sheryl Sandberg and Nancy Pelosi tell us something about what difference women do or do not make in the world of work and politics.
The question of whether women offer a unique perspective started with Carol Gilligan’s 1982 In a Different Voice.  It argued that men and women morally perceive the world in different ways, with the former depicting it in a hierarchical, right/wrong, black/white way versus a more nuanced  relational way.  Gilligan’s work was a landmark in psychology, paralleled by Mary Field Belenky’s, et al, 1986 Women’s Ways of Knowing and  Deborah Tannen’s 1990 You Just Don’t Understand,  which described the unique ways women come to learn, know, and communicate.  The core arguments for all three, and subsequent feminist writers, was that the unique experiences of women compared to men provide a female perspective in critical activities in life.  Men and women performing similar functions do things differently, might be one way to capture this idea.
Politically the argument would be that female legislatures would do politics differently, both in terms of style and policy agenda.  Margaret Conway’s 1995 Women and Public Policy noted important differences along these fronts, and since then other scholars have found contrasting ways men and women politically engage or act as public officials.  However, as other scholars, such as Robin West, have noted, lumping all women together in one group is stereotyping–there are important differences in perspectives among women based on race and class, for example. This is the concept of intersectionality recognizing the interplay of gender along with race, class, and sexual orientation,  for example. Much, but certainly not all of the  political research has focused on middle class white women, ignoring important perspective and policy differences that may divide women across a range of variables that also divide men.  Enter Sandberg and Pelosi.
Sandberg is a feminist icon to some for her book Lean In and claims that women should take charge.  Yet as many critics point out, she spoke with the voice of white affluent privilege, largely  ignoring the circumstances that women of color and less modest means face.  Her book was a claim that women would do business differently, but as the recent NY Times expose on Facebook and she revealed, it is hard to see how Sandberg brought a different way of doing business to the corporate world.  She adopted the same techniques and perhaps dirty tricks that men used when Facebook was challenged.
Nancy Pelosi ranks among the richest members of Congress, with net wealth estimated at nearly $30 million.  She is the former Speaker of the House, skilled legislatively, as a fundraiser, and as a leader.  It is hard to argue that her career has demonstrated a real difference compared to men in terms of the work she has done.  However both she and Sandberg are accomplished and represent one important perspective of women, but it is far from clear that they represent transformative figures that embody a unique female perspective.  They changed their worlds and conformed at the same time.
Why is all this significant?  The suburban blue wave that occurred on election day was one driven by affluent white women.  When it comes to partisan politics and policy,  the Democratic Party is largely being remade in the image of this powerful group of women.  If these women are the drivers of the Democratic Party now, their views should inevitably come to dominate as they take ownership of the party. Almost anyone, except former governor Chris Christie, gets this.  Sunday on ABC’s This Week when asked if it was a problem that women were not joining the Republican Party, he said they were welcome so long as they “believe in Republican philosophies and Republican approaches to government.”  Christie apparently thinks he and his other white male friends own the Republican  Party, define its orthodoxy, and that its principles are immutable.  Such an attitude is a recipe for political extinction.
The new Democratic Party will evolve;  it  is a party of women who share affinities with Sandberg and Pelosi.  It will be a perspective representing one set of middle to upper income values, but it is not clear that the interests served will necessarily be as progressive or as representative of the interests of the poor and people of color as some might think.  The challenge for the new Democratic Party will be how to hold together a constituency that contains suburban white women, people of color, urban liberals, and perhaps the poor.  These three sets of values are not necessarily compatible, and the challenge facing this new suburbanization of the Democratic Party is to ask whose preferences are not only included by excluded, and whether the female vote will really be transformative.

Friday, November 9, 2018

One Minnesota: Putting Words to Action Through a Small Town and Regional Investment Act

Tim Walz was elected governor on the slogan of “One Minnesota.”  At a time when the country and 22 of the 87 counties in Minnesota–better than Clinton did in 2016, but still not a majority of the geography of the state.  Most of his votes came from the Metro region and in many parts of greater Minnesota he lost counties by way more than 30%.  Minnesota is still deeply divided, proof also residing in the only state in the country with split partisan control of its legislature. 
Minnesota are deeply divided, such a message produced the first double-digit for a gubernatorial candidate since 1994.  Yet Walz still only won
The next challenge is putting words to action, formulating decisions in a way that unites the state, and developing policies that address needs not just of the constituencies who voted for Walz and Democrats, but everyone.  A starting step would be to enact a state version of a bill Congressman Tim Walz introduced into Congress this year--The “Small Town and Regional Vitality Act of 2018” (H.R. 6383).
In the spring 2018 I was teaching Urban Politics at Hamline University and I wanted my students to get engaged in real policy work and outside the classroom activities to enhance their learning.  Planning and economic development are passions of mine.  I used to be a city director of code enforcement, zoning, and planning, worked as a housing and economic planner, have assisted local governments with comprehensive plans and economic planning, and taught economic development at the graduate level at Hamline and the Humphrey School.  I contacted colleagues at the Minnesota Chapter of the American Planning Association to find projects for my students.
One of the projects involved an organization working with Tim Walz’s office.  Walz was doing some community engagement work with his constituents to find out their needs and concerns.  I had a chance to meet with Josh Syrjamaki, Chief of Staff for Walz.  In one of our conversations about the economic challenges that rural America and Minnesota faced I argued that one of the glaring failures of national and state policy was that there was no economic development plan for rural area.  The result was that more and more people would be forced to leave rural areas, further burdening metro areas like the Twin Cities.  Josh asked me what I would do, and I suggested that Congress needed to pass a rural capital investment and fund that would give rural areas the resources they need to address local infrastructure needs.  It would provide 85% federal funds, 10% state, and 5% local matching.  It would tie funds to local economic development plans and community planning and engagement.  The bill would provide significant local discretion to make capital investments but require a real plan and community engagement to define these plans.  In many ways, the bill I suggested would combine the best features of the very successful Rural Electrification Act of te 1930s  and the community development programs of the 1970s.
Josh loved the idea and so did Walz.  The result was the drafting of The “Small Town and Regional Vitality Act of 2018” (H.R. 6383).  The Mankato Free Press endorsed it but unfortunately the bill went nowhere given the partisan atmosphere of a Washington election year.
As governor I hope Walz considers adoption of a state version of this bill.  A Minnesota Small Town and Regional Vitality Act of 2019 would be a first good step at creating a One Minnesota by investing in our rural areas.  But even more could be done in terms of developing a real economic and infrastructure development plan for Minnesota that reveals the linkages between the different parts of the state.  Such a plan would really show that Minnesota is one and that all of the parts are really connected to one another.

Wednesday, November 7, 2018

What the 2018 Elections Meant Nationally and In Minnesota

Q: What is your analysis of this election?
The 2018 Trump and 2010 Obama midterm results are parallel elections in contrast. While in both years the sitting president was not officially on the ballot, nonetheless it was a referendum on them.  Both elections signaled partial repudiation of a sitting president and his party,  how divided the country is politically, and how the results did and likely will not break the gridlock in the country.
In 2010 the Obama presidency was repudiated at the polls by what the president did and did not do.  He bailed out the banks during the height of the economic crisis, but failed to help homeowners, unions, and others who supported him.  He took his base for granted and assumed they would show up to vote but they did not. He was repudiated in an election frustrated by a demand for change that did not occur, but his party also lost because much of the public thought they overreached.
Trump lost in 2018  for the very reasons why he won two years ago.  In 2016 Trump successfully appealed to the backlash against identity politics by making his own appeal to identity politics. He played on fear and prejudice two years ago, benefiting from the racial backlash against Barack Obama and also from the sexism and mediocrity of the presidential campaign that Hillary Clinton had waged.  He won because he tapped into the anxieties and anger of an electorate that had largely been ignored by the economy, Democrats, and the establishment Republicans, and he benefited from a sense of complacency that the Democrats had in thinking that a person like Trump could never win.  Trump’s win was also a product of geography and an electoral college that over-weighted votes from rural areas.
But in 2018 many of these conditions worked against him, or simply did not exist.  Officially it was not a presidential election but everyone knew it was a referendum on Trump.  But this time there was no electoral college to over-weigh rural votes, instead the geography of the election was not on swing states but instead on swing congressional districts where the battle line was in affluent and well-educated districts where suburban women, repulsed by the sexist and racist campaign that Trump waged, showed up this time to vote against him. Moreover, in 2018 there was no Hillary Clinton on the ballot to run against, reducing Trump’s electorate to a core base of voters that was far smaller than it was two years ago at a time when the Democratic voted in greater disciple and numbers than two years earlier. The result was that Democrats took control of the US House, leaving the Senate with the Republicans and a presidency with Trump.  The most likely scenario is political gridlock.

Q: With the results so far, how is the US Congress changed?

Democrats had a good night in recapturing the House as expected while the Republicans strengthened their control over the Senate.  There were no surprises here.  The US was never really within grasp of the Democrats, with them having to defend 26 seats to the Republicans 9, and many of the Democrat seats were instates Trump won.    In terms of the House, Republicans had to defend a lot more seats, especially in affluent suburbs, and this is where the Democrats had their strength among women responding to and motivated by the Me Too movement.

The Republican Senate is more conservative than the current one and the Democratic House more liberal than the current one.  Politically the two chambers are moving in opposite directions.

Q: How was this election for the Republican Party?  The Senate is a bright spot for the Republicans as well as holding on to some very close governorships.  Trump and the Republican Party will be able to point to these victories–including taking some senate seats from Democrats–as a sign of a victory and not a total rejection of the president and their party.

Q: How was this election for the Democratic Party?
This was mostly a good night for the Democrats.  They took the House ass expected, won some major governorships and legislatures, and also forced the Republicans to defend some critical seats that should have been easy wins, such as in Georgia.  More importantly, with the control of the House they have new leverage against the president.

Q: Where were young voters (under age 30) in this election?
Approximately 17% of the population is between age 18 and 29.   Exit polls suggest that 13% of the voters were under the age of 30 on Tuesday.  Generally one can say that the Gen Zs and Millennials appeared to show up almost in proportion to their population.  However, we do not have precise enough data to really say how Gen Z did, but a good hypothesis based on preliminary data is that their showed up more than two years ago.

Q: Is the Midwest still the Trump stronghold?

Yes and no.  Trump and Republicans hold pick up in Missouri and North Dakota but election returns in Minnesota, Wisconsin, and Michigan suggest a resurgent Democratic Party support.  The Midwest is not solidly moving toward Trump and Republicans and this suggests a more complicated 2020 strategy for Trump.

Q: Political scientists talk of critical elections and realignments?  Did this happen?
In 2016 and now 2018 we are seeing a significant shift in the political bases of the Democratic and Republican parties.  Democrats have all but lost rural America and appear to be losing white males without college education.  Democrats are becoming a party of educated women in suburbs and urban liberals.  This shift in base means a shift in politics.

Q: What do Democrats do next?
Their first choice is whether to make Pelosi speaker again. The liberals may want this but if they do that, it plays into Trump and the Republican hands who will run against her in 2020.  The second choice is what is their agenda.  Do they push for investigations against Trump or move their policy agenda.  The former strategy is about pushing impeachment and doing other investigations.  This is an important check but if it dominates the Democrats strategy then they are set up as obstructionists in 2020.  The alternative strategy is pass their entire agenda, send to the Senate and the president, and force them to respond.  If it is passed, great, if not, run on this agenda in 2020.

Q: What's next in the last two years of Donald Trump's presidency?
Gridlock, gridlock, and gridlock.  Policy wise little gets done and now the president will fact incredible scrutiny from Democrats.  I doubt Trump changes his strategy and becomes more conciliatory.  That is not his political instinct.  But this is a problem.  If the president and Trump cannot win over suburban women their base remains narrow and the road to victory in 2020 is difficult.

Q: How does the election affect US foreign policy?
Very little.  Presidents have far more power internationally than domestically and I see no basic change in what Trump will do.

Q: What are other key points of this election that you would highlight?  This election now sets up the 2020 presidential election.  In places the president in a new position that will expose his weaknesses.  The election changes the political geography for the two parties, and it also makes it easier for the special prosecutor to do his job, thereby exposing Trump to more scrutiny from him and the Democrats.

Q:  What happened in Minnesota and Why?
Minnesota proved to be a mirror of national politics in many ways but not others. Minnesota Republicans tried to nationalize the state elections by running on immigration, but as former US House Speaker Tip O’Neill once said, all politics is local.  Issues that play well nationally don’t always play well locally, and in part that is why statewide Democrats did well.  Minnesota with four swing congressional districts showed it was a major battle ground which helped decide control of Congress. Minnesota largely followed the pattern of national politics where Democrats won the suburbs and Republicans did well in the rural areas, and one can predict that the Iron Range is now permanently lost to the DFL, perhaps turning the Democratic Party ever more into an urban metro party. And the key to success for Democrats taking control of the state house also was through the affluent suburbs, producing a Minnesota pattern of divided government that parallels national politics.

One result of the election is that with five new members of Congress, Minnesota will have one of the least senior congressional delegations in the nation.  However, Colin Peterson will head up the House Ag committee and Betty McCollum will have an important leadership position too.

Saturday, November 3, 2018

The Politics of 1968 and 2018: Parallels and Divergences, Tragedy and Farce

“Hegel remarks somewhere that all great, world-historical facts and personages occur, as it were, twice. He has forgotten to add: the first time as tragedy, the second as farce.”
― Karl Marx, The Eighteenth Brumaire of Louis Bonaparte

It was an ugly election, marred by a partisanly-divided nation torn by generational divides and broader undercurrents of world politics.  Overt appeals to racism were made  to play on the insecurities, anxieties, fear, and perhaps hatred of a group of people sensing that their world was crumbling and that a new Weltanschauung was emerging. They were looking for a scapegoat, someone to blame.  It was an election where leading up to it demonstrations, often violent, had torn the country, and where violence itself defined the election up to the closing days.  It was an election everyone knew or sensed would be significant, and one where no matter what happened the country would remain divided.

Was that election 1968 or 2018?  The parallels are powerful and eerie. Much of what is taking place in the 2018 US midterm elections recall parallel conditions found in 1968. While there is no official presidential election this year, in reality the only issue is Trump–it is a referendum on him. Both 1968 and 2018 were or are critical elections that will have lasting impact on US and perhaps world  politics, and both represent clashes of generations and ideas at a scale one only sees perhaps at epochal points in history as we see now.  But despite the parallels, there are also profound differences.

1968 and 2018 unfold with contrasting esprit du temps.  1968 was a clenched fist by Black athletes, 2018 was a clenched fist by a white president.  1968 was the spirit of the French Revolution played out, a forward-looking revolutionary moment precipitated by what historian Alex  de Tocqueville contended in L'Ancien Régime et la Révolution a drive for liberty and equality.  1968 was about global movements for freedom–be in the Paris demonstrations, the Prague Spring, or the civil rights and antiwar demonstrations in the United States.  It was a revolutionary moment about  rising expectations clamped down, with a dam finally bursting that lead to a violent clash of forces. If part of 1968 was the revolutionary moment, it also had its Thermidor–the crushing of the Paris demonstrations, the Soviet invasion of Yugoslavia, and the election of Richard Nixon.

Contrarily, the esprit of 2018 is not emancipatory but reactionary.  It is born not of the rising expectations frustrated, but of ressentiment as social critics Friedrich Nietzsche and Max Scheler.  It is a resentment by a white, often rural, older, and Christian cohorts, seeing a world they once controlled pass to others of a different age, skin color, ethnicity, religion (or none) or nationality.  Marian Le Pen, Viktor Orban, and Donald Trump are the figure heads for this new reactionary movement that is nativist, racist, and increasingly violent.

For so long I wanted to argue that  the current US political climate was no where near as polarized as the 1960s when leading up to the  American presidential elections one witnessed in a matter of a few years a president assassinated along with his brother (too a presidential candidate) and a civil rights leader.  But Charlottesville last year, the pipebombs mailed to Democrats, the killings at the Tree of Life Synagogue, and two African-Americans killed by in Krogers last week show that the path in the 1960s from partisanship to anger, to hate, and to violence may be repeating itself.

Another parallel is race.  Strangely, 1968 was less about gender than race, but 2018 is about  both race and gender. 2018 will be decided by women, by MeToo, by Brett Kavanaugh and Susan Ford.  But if in 1903 W.E. Du Bois was correct in arguing that “the problem of the Twentieth Century is the problem of color line,” the 1960s was ground zero for that line.

The 1960s was the decade of race, the riots of 1966 and the burning of  American central cities.  But it was also the candidacy of George Wallace for US president, running on a white supremacist platform of  “Segregation now, segregation tomorrow, segregation forever” that was inspired by a 1962 speech he had given when he resisted the integration of Alabama schools.  Wallace ran an overt racist campaign.  Trump is doing the same.

Some will say 2018 is the most openly racist election since the 1988 Willie Horton ads, but by comparison the latter was no where near as dominated by race as 1968 or 2018.  (2016 was the most sexist since 1984 when in the latter Geraldine Ferraro ran as vice-president).  Yes all three juxtaposed race, law and order, and class insecurities, but the degree to which Trump has overtly and explicitly exploited the three eclipses 1988 to rival  1968.  Wallace’s overt racial appeals, along with Nixon’s implicit ones, torn America as the Democrat Party divided between the Humphrey and McCarthy (and RFK) people  failed to must a majority to win the presidency.  Again in 2018 America est omnis divisa in partes tres–with a strong unified Trump base, a fractured Democratic Party unable to articulate a clear response to him, and a torn shell of a former Republican Party unable to resist the president.  For the  201 elections, alea iacta est, and cast it is with Trump making it about him, law and order, and race.

2018 is both a repeat and a rejection of 1968.  It is the final gasp to fight the battles that one might have thought were won in 1968.  2018 is an election that will have implications perhaps for years much like 1968 did.  Depending on what happens, it may not only be a tragedy as we have seen in terms of the violence and racism, but also a farce in terms of its results.

Postscript: Less literary and poetic, the final days of the 2018 election come down to the themes of Trump, race, gender, and law and order and whether the Democrats or the Trump supporters will be more mobilized and show up at the polls.  As of now the battle is over mostly moving suburban women in affluent suburbs to vote, with secondarily whether young people and people of color (especially Hispanic) show up.  If the latter three do then it will be a good year for Democrats. If I were making a prediction, the Third Congressional District in Minnesota is ground zero for American politics.  If Dean Phillips wins then Democrats take the US House, if Paulsen wins, Republicans retain control.  That race is nearly a perfect picture of the divides of US party politics now and how and why educated suburban women will control the fate of American politics.

Sunday, October 21, 2018

Minnesota’s Governor’s Race Tightening According to Star Tribune/MPR Poll? A Lesson in How Not to Read Polls

The Star Tribune/MPR declare in a new October 21, 2018 poll that the race for governor has tightened in Minnesota, with Walz holding a narrow lead over Johnson  Is that the reality?  The simple answer is that we do not know based on the polling data the paper provides, but the poll also provides a lesson in how not to read and interpret polls.

I teach polling and survey research.  I learned how to        do this both from professors at Rutgers University who have gone on to run the Pew Research Center and their polls, and from Charlie Backstrom at the University of Minnesota who wrote one of the best books ever on polling.  I say this because while I may not be able to do a good poll myself, I do understand what constitutes a good versus bad poll, or at least how to interpret their results.

In an October 21, 2018 poll of 800 likely voters the Star Tribune/MPR poll shows Walz with a 45%-39% lead over Johnson, with 12% undecided.  The poll has a respectable 95% confidential level and a margin of error of plus/minus 3.5%.  The results in the poll compare to a similar one done by the Star Tribune/MPR on September 16, 2018, also among 800 likely voters and a margin of error of plus/minus 3.5% showing that Walz had a 45%-36% lead with 16% undecided.  The conclusion of the paper was that Walz had a narrow lead that was tightening between the two polls.  Is this a correct conclusion?

There are many reasons to correct how accurate such a conclusion is.  First, consider the margins of error in both polls +/- 3.5%.  In the September 16, poll Walz could have been as high as 48.5% or as low as 41.5%, and Johnson could have ranged from 42.5% to 35.5%.  Compare this to the October 21, poll where the range for Walz could be 48.5% or as low as 41.5%, while for Johnson it could be 42.5% to 35.5%.  What we get are so polls so close in terms of their results that given the margins or errors, the differences in the poll results could be simple polling or sampling errors.  It is difficult on the basis of these two polls alone to conclude very much in terms on anything.

Perhaps the only thing that intuitively makes sense is that fewer voters are undecided in October than  September.  But the difference of four percentage points is so close to the margin of error that it is too possible to conclude that any shift in the number of undecideds is statistically almost insignificant.

There are three other issues with the two polls that raise questions about how much one can infer from them.  First, in both polls 40% of those polled came from cellphones and 60% from landlines.  Nationally and in Minnesota we have reached a point where more than 50% of the population is without a landline according to the National Center for Health Statistics and industry surveys.  The best surveys research now seeks to have approximately 60% cellphone numbers.  The Star Tribune/MPR poll has an almost exact reverse of what is recommended.

Who still uses landlines?  Generally, the older you are the more likely to only have a landline while the younger the more likely to have only wireless.  This is significant because age is a variable in terms of voting patterns, with presently older people more likely to vote Republican than Democrat.  Thus, even though  both the September and October polls may have an approximately correct balance of Republicans, Democrats, and independents, they might have over sampled those who are more likely to vote Republican, especially among those who call themselves independents.  The reason for this is that many independents really are not independent–their voting patterns actually favor one party over another. Thus, both polls might have been biased in favor of Republicans.

Second, both polls perhaps over-sampled the metro area with 61% of respondents coming from the metro area, compared to a more historical norm of 53-55%.  While demographics in the state are changing, this metro bias perhaps meant that  the polls favored voters more likely to lean Democratic.

Third, it is unclear from the polling methodology who is considered a likely voter.  We know that historically between 10-15% of those who vote in Minnesota register at the time of voting.  Mason-Dixon, which does the polling here for the Star Tribune/MPR, in the past has not produced a good methodology that accounts for this phenomena.  Failure to do this again raises questions about the poll’s accuracy.  Finally, the poll fails to account for the fact that voters in greater Minnesota vote in greater percentages than those in the urban areas.

So what is the point I am making?  Comparing these two polls it is hard to infer as much in terms of trends as suggested by the data and we really cannot say that the Minnesota gubernatorial race is  close or tightening.

Saturday, October 13, 2018

Why Doug Wardlow Can’t Fire all the DFLers–It’s Unconstitutional

If it is correct that Republican Doug Wardlow would fire all the Democrats in the Attorney
General’s office if elected, he would be acting illegally, violating the Constitution, and opening him and the State up to numerous lawsuits that he would lose.
Media accounts indict that Doug Wardlow said at a recent fundraiser that he would fire all the DFLers “right away” in the Minnesota Attorney General’s office if elected.  Whether such a statement contradicts prior statements of his that he would not politicize the office is another issue.  However, while at one time it may have been true that to “the victor belongs all the spoils” when it comes to considering partisanship or party in public employment decisions, that is generally unconstitutional.
In the old era of spoils and patronage, partisanship or party affiliation could be considered in personnel decisions such as hiring, firing, and promotions.  Yet those days are long since gone.  In addition to civil service laws dating back to the nineteenth century limiting such a practice, the  U.S. Supreme Court has weighed in, ruling that except in the case of some narrowly defined  confidential and policy  positions, it is a violation of one’s First Amendment free speech and association rights to have employment decisions in government decided on the basis of one’s political party or political views.
In a series of what are called the patronage decisions, that include  Elrod v. Burns, 427 U.S. 347 (1976),  Branti v. Finkel, 445 U.S. 507 (1979),  Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), and O'Hare Truck Service Inc. v. City of Northgate, 518 U.S. 712 (1996),   the Court ruled  that the consideration of partisan affiliation or party activity in the hiring, firing, promotion, or letting of contracts was a violation of the First Amendment.  It did so by declaring the use of partisanship or party preference is not a compelling governmental interest in employment decisions.
For example, in Elrod v. Burns Justice Brennan argued that patronage is a threat to democracy and popular government because of the advantage it gives to one party in the electoral process.
It is not only belief and association which are restricted where political patronage is the practice.  The free functioning of the electoral process also suffers.  Conditioning public employment on partisan support prevents support of competing political interests...As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial or otherwise.  Patronage thus tips the electoral process in favor of the incumbent party, and where the practice's scope is substantial relative to the size of the electorate, the impact on the process can be significant (356).
        The Branti Court reaffirmed their holding in Elrod.  In the latter Justice Stevens’ majority opinion stated that the real question in the case was "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved” (445 U.S. at 518).  The Court found that except in a few narrow circumstances, partisanship was not an appropriate requirement.  In Rutan Justice Brennan stated that: “Today we are asked to decide the constitutionality of several related political patronage practices—whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not” (497 U.S. at 65).
Justice O'Connor wrote for the Court in Umbehr and ruled that the First Amendment protects independent contractors. In O'Hare, Justice Kennedy wrote for the Court, also holding that independent contractors have First Amendment protections against municipalities considering support for a particular candidate influence the awarding of contracts. In reaching this conclusion, the Court stated that past precedents established by Elrod and Branti, holding that public employees could not be dismissed because of their political affiliation or views, extended to independent contractors. Kennedy also ruled that the First Amendment protects the rights of government contractors against dismissal for their political views or affiliation.  The moral of the story:  Independent contractors enjoy First Amendment protection against the termination of contracts with the government as a result of their expression of their political views.
Overall, in five cases, bipartisan Supreme Court majorities ruled unconstitutional what Doug Wardlow wants to do, if done in a wholesale fashion.  He might be able to consider partisanship and political views for a small number of close senior advisors, but certainly not in the way he is quoted in the media.
Were Wardlow to fire all or some of the assistant attorneys general based on party, he would open up his office and the state to potentially scores of lawsuits.  This alone is a problem.  But second, if in fact the primary job of the Attorney General is to represent the State of Minnesota in Court, the question then would raise a legal ethics conflict of interest problem.  An attorney dismissed from the AG’s office based on claims of partisanship would name the Attorney General and his office as well as the state of Minnesota as the respondent. What if a DFL governor objected and wished to oppose the firings, the AG could not be the one being sued and defend the State of Minnesota at the same time. There is a clear conflict of interest that would force the State to spend money to hire an outside law firm to sue the AG.  Such a scenario creates numerous ethical and legal problems for the state.
Overall, whether Wardlow was serious about his intention to fire Democrats or it was simply a stump fundraising speech to rally Republicans is immaterial.  An attorney general cannot take actions that violate clearly settled constitutional law, and were he to do so it would raise many legal and ethical problems for him and the state. 

Saturday, October 6, 2018

The Face of Privilege: The Lessons of the Brett Kavanaugh Confirmation Hearings

One thing that the Brett Kavanaugh Supreme Court hearings destroyed was the myth of legal
neutrality.  That may be a good thing because it is time to recognize both that the Supreme Court and its Justices are not politically neutral and that neither should be.
An enduring myth of American politics is that the Supreme Court is above politics and that the Constitution and the law are neutral.  This myth, perpetuated by Alexander Hamilton, the constitutional framers, and legal education, is central to the legitimacy of the Supreme Court and the decisions it reaches.  For Justices such as Antonin Scalia who urged that the Constitution be interpreted by the intent of its framers, locating its meaning in their intentions was part of  the myth.  Legal neutrality is a powerful anchor for the court’s capacity to command obedience, providing a cover to suggest that the Justices were not simply politicians with robes.  Law schools, in teaching individuals how to think like lawyers, often refuse to discuss the power and politics behind the law, wanting to claim instead that legal reasoning and methodology are neutral.
The reality is that the law is an instrument of power and politics, often reflecting the biases and ideologies of the judges who sit on the Court.  Beginning in the 1930s legal realists such as Jerome Frank made that point. But other legal scholars such as Randall Kennedy, Catherine MacKinnon, and adherents of the Critical Legal Studies movement from the 1970s pointed out that the law as a whole embodies the values of the rich, those who are white, male, and straight. 
Political scientists using statistical models can show ideological and attitudinal biases and preferences on the part of individual Justices and how in recent years the best predictor of how a Justice would vote is look at the appointing president.  And while many want to point to the Supreme Court as the counter-majoritarian institution that protects what the most famous footnote in legal history calls “discrete and insular minorities,” the reality has been for most of its history it has either endorsed majoritarian  preferences or the minority it has protected has been that of corporations and the wealthy.  The bias of the Supreme Court is best shown in how in its 2010 Citizens United v. Federal Election Commission it freed  corporations to spend unlimited money to influence elections as a form of free speech, while in its 2018 Janus v. AFSCME it used the First Amendment to silence labor unions and make it difficult for them to raise and spend money for political purposes.
Brett Kavanaugh is the perfect embodiment of the Supreme Court’s bias.  He will be yet another Justice from an elite Ivy League Law school, a graduate of an Ivy League undergraduate institution, a product of a private prep school.  He has entitlement written all over his face, but collectively so does the entire Supreme Court.   Even its so-called liberal members represent an elite  hardly representative of American society, rarely challenging the core capitalist power and values that give meaning to the Constitution and the law.  The Kavanaugh ascension and coronation to the  Court have perhaps finally stripped the myth of legal neutrality from the Court, making it clear that it is another face of power and politics.
Stripping away this will scare many, but it should be a wake up call.  For too long progressives and Democrats have placed faith in the judiciary as the final bastion of protection for them when it comes to reproductive rights, civil rights, and other personal and political freedoms.  They foolishly hoped what Alexander Hamilton once called the “least dangerous branch” would be powerful enough to check the other institutions and provide blind justice for all.  That belief should  now be gone.
Unmasking legal neutrality is good.  The public needs to recognize that neutrality is not neutral–it supports the status quo which is not neutral.  Moreover, in so many ways, we should  not want real legal neutrality–whatever that is–in our Supreme Court and Justices.  In a confirmation hearing were a nominee to say that he could not comment on whether the Constitution made discrimination illegal because it is an issue that might come before him, one would hope that he would be rejected.
The point is that we should hope that the Constitution and Justices are not really neutral, that  instead they should  respect and reflect an evolving constitutional morality and set of principles that express certain values.  We should expect the issue of reproductive rights is not an open question but instead is a resolved and settled constitutional issue.  So should the questions about racial, gender, and other forms of discrimination.  One should hope that our evolving constitutional morality respects as settled that members of the LGBTQ+ community are entitled to equal protection.  We should hope that an evolving constitutional morality says that money should not determine the outcome of elections or decide major questions in a democracy, or that the death penalty is an acceptable punishment. 
The myth of legal neutrality by hiding the power and biases of the law perpetuates the idea that questions of fundamental rights such as those noted above are a matter of debate.  They should not be, but they will continue to be contested until such time as one recognizes how the law masks and supports a privileged viewpoint that is not necessarily democratic.

Thursday, September 27, 2018

Thoughts on the Kavanaugh Confirmation Hearings

What’s at stake with the Brett Kavanaugh hearings?

Even before the allegations of Kavanaugh’s sexual misconduct his hearings were important politically and legally.  Because of the political polarization and partisanship in Washington, Congress and the president have been unable to get a lot done, thereby forcing the US Supreme Court to get involved in resolving major political controversies of the day ranging from the rights of same-sex couples to marry, the constitutionality of Obamacare (Health care), reproductive rights, and a host of other issues.  The federal courts have become an alternative forum for groups to press their political issues.

For the last few years the Supreme Court has been a slightly right of center institution, divided politically 4-1-4.  There are four reliably conservative Justice appointed by Republican presidents, and four reliably more liberal Justices appointed by Democrat presidents.  Both sides vote nearly as a bloc.  In between has been Justice Anthony Kennedy, who has been a swing justice.  In the 30 years plus on the Court he has been perhaps the single most influential Justice, often casting the critical fifth vote deciding cases.  Analysis suggests that over his career he has been in the majority nearly 90% of the time.  In effect, as Kennedy votes so goes the Supreme Court.

Kennedy announced his retirement a few months ago.  The US Constitution says the president shall have the power to nominate members to the Supreme and lower federal courts, subject to the advice and consent (approval or confirmation) by the Senate.  What we are in the middle of are the confirmation hearings.

So who is Kavanaugh?
Brett Kavanaugh is currently a federal court of appeals judge and he served in the Bush administration.  An analysis of his court opinions suggest he is a conservative legally and were he confirmed to replace Kennedy, he might move the Supreme Court in a more conservative direction with a firm five votes.

But are Justices really political? 
The best political science research of voting behavior suggests that ideology increasingly matters.  The best predictor of how a Justice will vote is to look at the appointing president.  At one time presidents were less likely to consider an appointee’s views where nominating them to serve on the Court, but those days are gone.  The Robert Bork failed confirmation in 1986 changed that.  Now, given that Supreme Court justices can serve for life and that Washington is deadlocked, potentially the most significant legacy of a president is who he places on the Court.  Were Kavanaugh confirmed, Trump will now have two appointments to the Supreme Court and the impact will potentially be important.

Do the Democrats realize all this?
Yes.  They understand this and how legally and politically important this appointment is and were ready to fight the nomination originally.  But there were two other factors that made this appointment so contentious.  First, Democrats are mad that when Justice Scalia died while Obama was president the Senate would not schedule a vote on Obama’s nominee Merrick Garland.  This gave Trump an opportunity to fill the vacancy with Gorsuch.  Democrats felt that the Republicans did not play fair and there is some payback here.  But also, the 2018 elections are in the background here, and the original Kavanaugh hearings occurred under the light of how they would motivate the Republican and Democrat political bases.  My point is that the stakes were high even before the allegations of sexual harassment, but it appeared that the Republicans had the votes to confirm Kavanaugh.  Probably all of the Republicans were going to confirm, and perhaps two or three Democrats would have also voted for him.  These were Democrats up for election this year in states that Trump won as president.

How did the sexual harassment allegations change things?
First, it is too soon to tell in terms of a final vote, but it now changed the hearing into even more of a political issue, as well as a question of what it means to be fit to be a justice. 
By that, Republicans already had a gender problem with evidence suggesting females voters were mobilized and turning against them in the 2018 elections.  The is the “me too” movement growing out of reaction to comments by Trump and accusations of sexual misconduct by famous people ranging from Bill Cosby, Harvey Weinstein, and Senator Al Franken.  Women rightly are upset by sexual harassment and misconduct by men and want action taken.
The accusations against Kavanaugh are significant, especially how that there are multiple  accusations.  Republicans are in a bind.  They want to confirm Kavanaugh and move the Court to the right, and this is something of big interest to the Republican political base, especially the evangelical Christians.  However, public opinion is suggesting Kavanaugh is unpopular and women especially oppose him.  Pushing Kavanaugh runs huge political risk that women will vote for Democrats and flip both or either the House or Senate and put them in charge.  The issue or question is it worth the political risk, do you push for Kavanaugh and move the court to the right and take a chance that might put your party out of office?  Also, if Republicans lose control of one or both houses of Congress, this has big implications for Donald Trump in terms of legal investigations against him.

What can we expect in the hearings?
In addition to everything I have already said, hanging over this hearing is the image of the 1991 Clarence Thomas Supreme Court confirmations hearings when the Senate heard allegations  from Anita Hill regarding sexual harassment by Thomas.  While Thomas was confirmed, it left a big legacy. It mobilized female candidates to win big in 1992.  But it also created an image of a bunch of old white men who were out of touch not treating sexual harassment seriously.  The Republicans want to avoid these problems this time.  They want to protect Kavanaugh and make it look like there is a fair hearing while also not upsetting women.  That is why they have hired a female prosecutor to question Dr. Ford.

Will this solve the optics or image problem?
It is not clear but doubtful.  First, prosecutors often act like prosecutors and this is an issue here. Will the prosecutor hired by the Republicans put Dr. Ford on trial and grill her hard.  It could blow up in their face.  Second, how will she or the Republicans treat Kavanaugh and how will he respond?  In effect, who will be perceived to be put on trial.
I think the Republicans have already made major mistakes in this hearing.  They announced no FBI hearing to review the allegations of Ford and others.  A Senate hearing is a horrible place to do this type of fact-finding.  Second, they seem unwilling to allow other accusers to testify, or at least are not giving them sufficient time to stte their case.  Third, the Senate has scheduled a vote for Friday and that vote, along with comments by many Republicans, suggests that they have already made up their mind and the testimony, whatever it will be, will not change their minds.

Could the hearing end the Kavanaugh candidacy?
Maybe.  There are two big differences from Anita Hill.  First, 27 years have passed and American culture has possibly changed.  It is possible sexual misconduct allegations now mean something that they did not back then.  Second, Anita Hill and Clarence Thomas were Black, Kavanaugh, Ford, and the other accusers are white.  Race is not a factor here and it may be harder to discount claims by white women.

In addition, female Republican Senators Collins and Murkowski seem troubled by the Kavanaugh accusations, and if they flip Kavanaugh might lose a final Senate vote if there is an otherwise straight party-line vote.  The sexual misconduct allegations may give enough political cover to some of the Democrats up for re-election in Trump states to vote against Kavanaugh.

Before a floor vote, the Senate Judiciary committee must vote.  This is Friday.  In theory the committee could vote not to confirm and kill the nomination there.  Another possibility is a vote to confirm and send to the full Senate, a third is a vote with no recommendation and send to the full senate.  In 1991, the Senate Judiciary sent the Thomas nomination to the full committee without a recommendation.  Barring a really bad hearing, I doubt the Republicans will let the Kavanaugh appointment die in committee.

Final thoughts?

There is not fixed answer regarding what it means to be qualified to be on the Court.  Aside from all the political issues, the tough question is where and how do these allegations against Kavanaugh, even if true, fit into determining whether he is qualified to sit on the Supreme Court.  Legal skills and judgment obviously should be factors, but how one assesses character is difficult, and this is a major issue here too.

Wednesday, September 19, 2018

The Case of Brett Kavanaugh: What does it mean to be Qualified to be a Supreme Court Justice?

Imagine that Supreme Court judicial nominations and confirmations were non-political.  Here the
  president nominated  the best qualified candidate regardless of politics  and the Senate treated its advice and consent role seriously.  Were that the case, is Brett Kavanaugh qualified to be a Supreme Court Justice?
The question of course hinges on what it means to be “qualified?”    Recently I did a radio interview on the second day of the Kavanaugh confirmation hearings and said that he was “probably” qualified to be a Supreme Court Justice.  Almost immediately I received an email from a partisan Trump supporter excoriating  me for using the word “probably.” It apparently was clear to him well before the hearings had finished that Kavanaugh was qualified, no matter what the rest of the hearings would tell us.  I responded by saying my use of the word was to suggest that until all the information was in and hearings were over I could not reach a final conclusion on whether he was qualified.  One needed to keep an open mind and listen to all the testimony and not pre-judge someone based on partisanship or ideology. 
Unfortunately, this person was not atypical–the Kavanaugh hearings thus far did little to provide information on his qualifications and few if any Democrats and Republicans on the Senate Judiciary Committee, the Senate as a whole, or even the public in general, seem to have been influenced by the testimony and evidence.  The Kavanaugh hearings were merely the overture for the 2018 elections.  But now with the accusations of sexual assault the outcome of the Kavanaugh confirmation is open, and it renews the question–what does it mean to be qualified to be a Supreme Court Justice?
Qualified is not defined anywhere in the Constitution–there is no language in Article II, Section 2 that directs what  presidents should consider when making judicial appointments, the same is true for what senators should consider when offering “advice and consent.”  This renders  “qualified” a matter of political judgment, leaving open the factors to be considered.
To be qualified starts with technical skills–knowledge of the law, legal reasoning, past experiences, including as a judge.  By those accounts Kavanaugh is qualified–even highly qualified as a judge according to the American Bar Association.  If being a judge were simply a merit  system and politics or ideology were not factors affecting the courts, then perhaps a discussion of  Kavanaugh’s qualifications would end here.
But it does not end here.  Political science research shows that the ideology of judges often matters in decision making.  As Judge Richard Posner once said about Robert Bork when the latter was nominated to the Supreme Court, judges are not potted plants.    Judges have to make difficult calls that demand good judgement (that is why we call them judges).  Judging is not purely mechanical and value free, if it were we could replace judges with computers.  Thus, even without politicizing the judiciary, more than mere technical skills are necessary to determine the qualifications of one to be a judge. 
One’s judgment or views matter.  Would it not be valid to consider whether a judicial nominee believed in civil rights for all?  The Bork hearing was political, but political included a question regarding whether his views were within the accepted mainstream of legal orthodoxy.  Justices on the Supreme Court are trustees for the Constitution because they interpret it, and part of advice and consent by the senate should be to determine whether a nominee can be trusted to serve in that trustee role.  There is no way one can ask nominees about all issues they may confront as a justice, at some point it is about whether one can trust their judgment.  Thus, character matters too as part of ascertaining qualifications or fitness to serve.
One of the toughest issues is determining what factors in one’s private life, in any, are relevant to  public service (or for any job).   Does it matter that one drinks, smokes, or holds certain opinions?  At one time infidelity, being a member of the LGBTQ+ community,  or doing a marijuana joint was considered relevant and a strike against a candidate.  It is less clear where and whether these factors hold as much sway as they used to.  Moreover, where do we place past acts, especially bad ones, in terms of judging one’s present character.  Do acts committed one, five, ten, or 30 or more years ago speak to one’s present character?  Sometimes yes, sometimes no.  People change, mature, or evolve,  and sometimes not.  Aristotle referred to character as “habits of the heart.”  Doing something once does not necessarily speak to our character, but when it becomes a habit it does.
But now think also about the concept of mercy and forgiveness. As eloquently stated in Shakespeare’s Merchant of Venice: “The quality of mercy is not strained.”  By that, should all of us not be entitled to forgiveness and a second chance?  In the case of Kavanaugh, let us assume the allegation of sexual assault against him is true and assume he had been convicted of a crime and paid his legal debt to society.  Should we not forgive him and look at the rest of his life to determine whether he is qualified, or does one bad act disqualify him for life?  For many who say we need to give ex-felons a second chance, the answer would be to give a second chance, but one still needs to place this one bad act within a larger picture to ask what it says about his character.  In some cases, one bad act may be disqualifying, in others not.
But here, Kavanaugh is accused of a bad act,  and assume even that the allegations are true, does this behavior render him unqualified to sit as a Supreme Court Justice?  There are competing answers taking us in different directions, suggesting even under an ideal situation there is no clear answer to what it means to be qualified to sit as a Justice.

Saturday, September 8, 2018

The Irony of Donald Trump–The System Works

Perhaps one of the most overused phrases in the news and among commentators is the phrase “constitutional crisis,” especially as it applies to a cluster of issues surrounding the Donald Trump
presidency including whether he can be indicted or if, as an anonymous NY Times op-ed asserts, administration officials are part of a resistence to limit his action. I am not sure what the term means, but there is no constitutional crisis when it comes to Donald Trump, the “system” is working.

A constitutional crisis means a situation where the Constitution and the laws cannot handle or address a specific situation and we are left totally with non-constitutional solutions to address a problem.  I do not see that   here.  When Trump was first elected, I began giving a series of talks that continue to today.  In those first talks I said that there was something remarkable the day after the election–there were no tanks in the streets or troops on the corner.  I said that what will largely happen is that the Trump administration will confront this nasty thing called the Constitution and the Bill of Rights and both will largely do their job.   Lacking government experience and an inclination to want to learn, Trump would face the checks and balances and separation of powers limits that the Constitution imposes.  Moreover, for Trump to get anything done he and his administration needed to secure the assistance of the 3,000 or so members of the Senior  Executive Service–SES–the careerists who really run the federal government.  Finally, were Trump to exceed the political boundaries of what Americans could tolerate, elections would be the final remedy.  Largely, all of this is happening now.

Now 18 months later it is happening.  Legal investigations are tightening the noose around Trump. His and the Republican overreach and ineptness will produce electoral results that will hold him Trump accountable, or at least check him, and the complex system of administrative law and members of the SES or the bureaucracy also are checking the president.  All of this is consistent with the Constitution and its design.

Additionally, as the special prosecutor finishes his investigation, we may soon find Trump and others facing criminal charges.  If a sitting president can be indicted for federal crimes, then the criminal justice process will render a final verdict.  If a sitting president cannot be indicted–and we do not have a clear answer to that question–then possible impeachment or simply voter retribution against him or Republicans may occur.  Trump of course can pardon those accused of committing federal crimes, but he cannot issue pardons for impeachment, civil action, or state crimes.  It is also unlikely anyone would seriously argue the president can pardon himself.

Even if Trump were to fire the special prosecutor, he cannot remove the federal career prosecutor in New York who went after Michael Cohen, and even if he does fire him, Trump cannot fire the Manhattan Borough district attorney or New York State Attorney General who are investigating charges against Trump and his foundation.  It is also an open legal question regarding whether a sitting president could prevent facing state criminal charges.  And the Supreme Court has already ruled that a sitting president can  face civil law suits.  Federal courts have already ruled against Trump on many key issues, and more adverse decisions will come.  Overall, regarding of who sits on the Supreme Court, Trump will face monumental legal challenges that have already checked much of his behavior. 

Even if the legal process breaks down, the final verdict lies with the people.  Barack Obama said it well in his Friday, September 7, 2018 speech when he said that: “Because there is actually only on real check on bad policy and abuses of power, and that's you. You and your vote.”  Elections are the ultimate check on abuses of power, and they are provided for in the Constitution.  Trump's overreach appears to be producing renewed interest to vote and perhaps will yield significant Democrat Party  turnout that will correct and check the worst of the abuses.  2020 may too be another verdict.

The Constitution is proving to be able to address or anticipate many of the problems we are seeing.  I do not see a constitutional crisis. Maybe there is a political crisis but not a constitutional one.    The Constitution is mostly a process document, not one of substantive public policy.  Yes Trump and Congress have enacted many ugly policies that hurt people.  When I say the system works, I do not mean it produces the policy outcomes that I want or which liberals may desire.  The system is working for many of the ways it was designed to work.  The Electoral College is by today’s standards undemocratic but it may be working the way it is supposed in the sense that it checks populism.  Moreover, as Sandy Levinson makes clear in his book on  Our Undemocratic Constitution, the Constitution was not designed to “work” in ways that produce real majority rule.  The Constitution may be working in ways it was supposed to, it is just not the way many of us like.