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Thursday, March 29, 2018

Supreme Court and Gerrymandering

  Today I heard some of the most interesting and important oral arguments I have ever heard.  The case involved a challenge to Maryland's Democratic gerrymandering scheme which resulted in Maryland going from a 6-2 Democratic advantage to 7-1.  Maryland is generally a 60/40 Democratic state.  But with gerrymandering its congressional delegation was 87.5% Democratic.
      Before getting into the argument let me give you the setting.  I got into the lawyers line about 6:00 A.M.  I became a member of the Supreme Court bar for the sole purpose of being able to get into the lawyers line (and to write e mails to you).  I was among the first lawyers.  The public line had formed the night before.  I chatted with several of the lawyers in line with me.  Three were with The Brennan Center For Justice.  There were also lawyers from the ACLU and other public interest organizations.  The lawyers from the Brennan Center had organized and filed briefs in opposition to Maryland's gerrymandering scheme.  They had also filed briefs in opposition to North Carolina and Wisconsin's Republican schemes.  They take the position that extreme gerrymandering whether Republican or Democratic is unconstitutional.  Once in the courtroom I had a second row seat, two arm lengths away from Nina Tottenberg and Pete Williams. 
     By way of background, the Supreme Court has already heard arguments involving Wisconsin's gerrymandering.  The Court has held in abeyance the challenge to North Carolina's scheme.  So at the moment there is a Democratic and a Republican scheme before the Court and a Republican scheme on hold.  If I could take a poll of Democratic  politicians across the country, I would bet that they would be happy if Maryland's scheme goes down along with Wisconsin's and North Carolina's. 
       There is a significant procedural difference between the Wisconsin case and the Maryland case.  In Wisconsin there has been a Court Of Appeals decision that their scheme is unconstitutional.  In Maryland, the plaintiffs are appealing a lower court's ruling that it would not  issue a temporary restraining order barring Maryland from implementing the gerrymandering plan.  In other words in the Maryland case, there has not been a ruling on the constitutionality of its gerrymandering.  This turned out to be a big issue in oral arguments.  The justices across the spectrum asked questions suggesting that it might be a good idea for them to do nothing until the lower court decides whether Maryland's scheme is unconstitutional.  Alito and Roberts really gave the attorney opposing gerrymandering a hard time on whether they should hear the case. This would mean, of course, that Maryland would not be impacted by the Supreme Court until at least the 2020 election.  Sotomayor and Ginsberg both suggested that it is too late for the Supreme Court to have any impact on Maryland's 2018 election.  While Democrats might like that result, it might be that the court would also not do anything in the Wisconsin and North Carolina cases where Republicans are unfairly favored.  In fact, Breyer made the suggestion that the court should have a rehearing in the Wisconsin case and then consolidate all three cases for a later hearing and decision.  The other jusices seemed receptive to that idea.  So don't be surprised if that is the result.  I really did not like where this whole line of questioning was going.
         Going to the merits, all of the justices who spoke seemed to feel that extreme gerrymandering is unconstitutional.  Thomas had laryngitis. The issue is then, what is the definition of "extreme."
          One of the interesting aspects of this  is that Maryland was represented by its Democratic attorney general.  The Republican governor of Maryland filed a brief in opposition to his attorney general.  In the lower court the deposition of Congressman Chris Van Hollen was taken.  He testified unabashedly that the purpose of the gerrymandering was to get one additional seat to go Democratic.  So they created a district that goes from the suburbs of Washington  across the panhandle of Maryland which is rural. Included in the district is the wealthy city of Potomac.  Roberts pointed out that there are farmers in Potomac as well as farmers in rural Maryland.  The difference is that the farmers in rural Maryland are real farmers while the farms in Potomac are hobbies.  In order to create this crazy district Maryland moved about 350,000 voters out of the district and moved about 350,000 into the new district.
       Kennedy as always asked an interesting question.  He asked if Maryland could pass a law mandating that there be a 7-1 congressional split.  The attorney general answered,"no, that would be unconstitutional."  Therefore, Kennedy asked why is this scheme  not unconstitutional since it came into effect pursuant to the Maryland redistricting law.  I thought the attorney general did not have a good answer.
       I happened to be sitting next to a Vanderbilt law professor who is African American.  At one point Roberts drew a distinction between gerrymandering based upon racial factors as opposed to gerrymandering along political lines.  Roberts said that perhaps political gerrymandering could be given leeway but under no circumstances will the Supreme Court allow racial gerrymandering.  The law professor and I gave each other elbow nudges.  By the way, there are plenty of conservatives who say that the courts should never get involved in gerrymandering questions.  Roberts made it clear that the Supreme Court in the past has and in the future will  get involved when racial gerrymandering is an issue.  Kagan said that in many ways the Maryland case is easier to decide than the racial cases.
        Breyer has a tremendous sense of humor.  He has displayed it at every hearing I have attended.  One of the attorneys suggested that it was important to consider the testimony of Van Holland in making a decision.  Breyer suggested that might be a bad idea.  Future redistricters are not stupid.  They would know better than to say out loud what their true intentions were.  Kennedy said that redistricters could get away with extreme gerrymandering as long as they don't publicly state their intentions.
        Near the end of oral arguments I thought Breyer got a terrific concession from the attorney general.    He got the attorney general to concede that in a case of extreme gerymandering it would be possible for the Supreme Court to do the redistricting.  This is in response to Roberts saying in the Wisconsin case that the court should not get involved in the gobbledigook of redistricting.
       I could make this e mail much longer, but I don't want to lose the half who are still with me.  Let me end by saying that it's much easier for me  in the audience to imagine what I would argue as opposed to  the one actually arguing.  Roberts said it would not be such a big deal if the Court's decision had no effect  until 2020.  The lawyer opposing gerrymandering gave a very technical answer.    I wish he would have thought of the old axiom, "Justice delayed is justice denied."  My guess is that this case is going back to the district court without a decision on constitutionality.  Stay tuned.  Thanks for reading.

P.S.  Michigan is horribly gerrymandered.  Hopefully that will go away after 2018. There will be an initiative on the November ballot to provide for a bipartisan commission to draw district lines both at the State and federal levels.  If passed it will go a long way toward fairness in elections.

Monday, March 5, 2018

Trump's Tariff War

Trump appears to have made a big blunder with his new tariff war on Steel and Aluminum. 

If I'm reading the tea leaves correctly, it's all about the special election in Pennsylvania where Democrat Connor Lamb has just caught up with Republican Rick Saccone in a very red district.  The Republicans recognize the possibility of losing a “safe” seat in the House, and they won’t make it easy!

There are many steel workers with families and friends in that district, and some unions have been attracted to Trump’s protectionism since the 2016 campaign.  However, I believe that Trump's steel protection plan, like his health plan, his DACA plan, and his "middle class” tax reform plan is just another game of smoke and mirrors that reverberates with his base.  Once the unions recognize that more American jobs will be lost than saved in a trade war, they may modify their approval of it!

Watch for the tariffs to live in the media briefly, but disappear shortly after that election on March13th in Pennsylvania!


Friday, March 2, 2018

Overestimating Chump

  I am more than willing to admit I underestimated Chump's appeal.  To this day it is unexplainable how anyone could not see that he is mentally deranged, and totally unqualified to be president.  So I will admit that I underestimated his appeal.  But in reality I have overestimated his mental capacity.
      Before he started his campaign I thought he must be bright even if  he was an amoral crook.  Now after witnessing this guy, I see that I  way overestimated his intelligence.
      First, it is painful to see him try to read from a teleprompter or any other text.  I am guessing he reads at a fifth or sixth grade level.  His vocabulary and syntax are at the same level.  
       The problem is that fifth or sixth graders are probably 10-12 years old.  Chump's constant name calling is more like at a second grade level.  I have never heard any grown up name call like this 70 year old.
       But this week he demonstrated the mentally of a preschooler.  Only a preschooler would fantasize that he or she would rush into a building unarmed and take down an assault weapon carrying gunman.  This is a really sick 70 year old.  So I now estimate his mental capacity as somewhere between a 4 year old and a 12 year old.
       Just as I underestimated his appeal, I way overestimated his intelligence.  Now the question will become whether we overestimate the intelligence of the American people.  Next time around, I don't think so.  Take care.


Guns vs Kids: Politicians Choose Guns

The kids from Parkland, Florida have embarked upon a campaign to change the laws that currently allow anyone over the age of eighteen to purchase an assault weapon like the one that terrorized them and which took the lives of seventeen fellow students and faculty at their high school. 

A few days later those youngsters asked their representatives in the Florida House to use their positions of power to stop the easy sale of assault weapons.  Of course, the students discovered that having both truth and justice on their side means nothing to politicians indebted to the gun lobby.

Some of the students met with the President in front of a national audience on television.

He nodded and appeared to be listening compassionately while knowing that his staff had carefully prepared his responses.  In the end, he attacked the FBI; and, after due consideration, offered a plan that would not upset the NRA: “Arm the Teachers!”

The right-wing echo chamber immediately launched the same verbal weapons that they used to demonize Hillary Clinton in the 2016 Election.  They accused these kids of being paid actors while they were fresh from escaping the most terrifying experience we can imagine: racing away from hundreds of bullets flying at them at speed of more than 1000 mph…. tearing flesh and crushing bones wherever they hit a human body.  Meanwhile, we saw pictures of armed deputies hiding behind their cars outside the building, knowing that their handguns were no match for an assault weapon. 

These young survivors had seen friends and teachers gunned down when they stopped to help others.  They heard the screams of terror and agony… knowing that they might be next.  Some hid and texted family often believing that they were about to die

With the entire nation aghast at the horror our American children had just experienced, the political leaders of our country tried to balance how to say the right things to the outraged young people seeking a change from the madness while these political hacks were really concentrating how to save their seats in the next election or how to save the big donation that they had received from the NRA.  

The political leaders’ decision? 1st: support the NRA, next: save their seats in Congress, last: consider the kids.

In what kind of country could this have happened? How can we allow them to keep control of our democratic institutions?  We can only recover the dignity of the American dream at the ballot box!  And we can only succeed at the ballot box by calling out the liars, the haters, and the propagandists!

The elections of 2018 and 2020 are likely to be the last chance to save our country!


Friday, February 16, 2018


  I assume everyone receiving this e mail agrees with my views on guns.  I have heard endless analyses of the issue in the last 24 hours.  I would like to share my thoughts of the most interesting comments, good and bad.
       First, the lunatic in chief.  His first tweet put the blame on the teachers and students for not preventing the gunman from doing the killing.  This man is crazy, not to mention evil.  Today he gave a seven minute speech  with the same old platitudes about prayer and telling children how much we love them.  He said we will do everything we can to protect them.  That is, of course, a bald faced lie.  
        Rubio, Ryan,  Cruz and others say now is not the time to talk about gun control.  It never is.  Grassley said the one thing all of the mass killers have in common is that they had mental problems.  He is wrong.  There is a second thing they all had in common.  They all used assault weapons.  After every mass murder Ryan has said exactly the same ting, now is not the time to talk about gun control.
      Tim Kaine made  a great argument.  He said that the NRA has its headquarters in his state.  He gets an "F" grade from the NRA.  He nevertheless gets reelected.  He called the NRA a fraudulent  paper tiger.  They should not be feared.  Yet his colleagues fear that the NRA will go after them if they buck the NRA.  Kaine urges his colleagues to forget their fears.  The NRA is really toothless.  If only there were a stiff spine on Capitol Hill.
        Wolfe Blitzer interviewed  a psychiatrist  who is an expert in mass violence.  She put into words exactly what I had been thinking.  She said it is a pure fantasy to think that increased mental treatment will prevent these things from happening.  She said that mass killings occur as a result of a sudden explosion of a psychotic episode.  She said that one cannot predict which mentally impaired person will explode and which will not.  She said the only thing that  can be effective is controlling the availability of assault weapons.  She said that states with effective gun control laws have lowered their numbers of gun related crimes.  The psychiatrist said that she herself has held an assault weapon.  She said it gives a person a tremendous sense of power and entitlement.    Just putting such a weapon in  anyone's hands is highly dangerous.
         Chump's speech was interesting in a couple of ways.  First, he was reading from a teleprompter.  He can barely read.  I suspect  a fifth grade teacher would say that he is barely at grade level.  He spoke with almost no inflection.  He gave the usual platitudes.  Second, his speech never once said the word "gun".    The good news for Chump is that the massacre occurred near Mar A Lago.  I guarantee that when he goes to Florida to meet the families of the victims it will not stop him from getting in his rounds of golf.  Watch and see.    Thanks again for listening.

Sunday, February 11, 2018

Preparing witnesses

  Chump has preempted me once again.  For a few days I have been thinking about writing a piece about preparing a witness for testimony.  Before I could get to my computer there arose  the story of another Trumpian biting the dust, or should I say hitting  a spouse.  Separately there is the story of Nancy Pelosi a 77 year old woman, standing on four inch heels delivering a passionate 8 hour speech about dreamers and the moral obligation of Paul Ryan to do the right thing.  So I will start with preparing a witness.  More to follow about other subjects.  I assume Trump will preempt me again.
       Before reading beyond this sentence, please ask yourself what would be the first question you would ask Chump if you were Mueller?  I have my question.  Here it is. You told NBC News the following," I have the world's greatest memory.  It's one thing everyone agrees on."  Is that a true statement?  Will Chump admit that was a lie?  Or will he still claim he has the world's greatest memory? As a wise person once said, if you are going to lie, you better have a good memory.  We know that he can tell multiple lies within one sentence.  In fact, he told two lies in the above quote.
       I have prepared a huge number of witnesses for testimony under oath whether at depositions or trials.  I always told them certain basic rules.  First, never lie.  Never worry that an answer will hurt you.  What will hurt you is if you lie and you're caught.  Second, there is nothing wrong with saying, "I don't remember."  The witness is not being given a memory test. The problem for Chump is that he has publicly stated on multiple occasions that he has the world's greatest memory.  So if he answers the first question affirmatively, every time he says he does not remember, he is lying.  Chump has faced this dilemma  before. In a deposition involving Trump University, he said he did not remember 35 times.
       Years ago I represented a fairly wealthy woman in a personal injury case.  In written interrogatories she answered that she had never been arrested and convicted of a crime.  At her oral deposition she said the same thing.  Then the opposing counsel asked her about her conviction for shoplifting at Saks.  That was the end of the case.  Later she told me that she thought the other side would never find out about it.  If she had told me about the conviction before answering the interrogatory, the problem would have gone away.  The shoplifting had nothing to do with an auto accident case.  But she ruined her case by lying.
        I have no doubt that Mueller has a great deal of knowledge about Chump's nefarious dealings with Russians.  If he lies, Mueller will have him both on the dealings and on perjury.  
        I have had the experience, more than once, of dreading my client's upcoming testimony.  Some clients are uncontrollable. It is an awful experience.  I think that Chump is far more uncontrollable witness than any I have dealt with.  If I were Chump's lawyer I would play out the string as long as possible in the hope that somehow he will not be compelled to testify.  I would love to be a fly on the wall to hear the discussions between Chump and his lawyers.  Then I would love to buzz unto  the wall for Mueller's questioning of Chump.  I remain convinced that once Mueller completes his investigation, Chump's presidency will have less than a 50% chance of survival.  He's a liar and a thief. Thanks again  for listening.


Congress pushing back on Trump's reckless Mideast policies

President Trump’s disastrous policies in the Middle East could help lead to a new outbreak of fighting at one of the region's most sensitive hotspots -- Israel’s border with Gaza.
In the latest escalation in US-Palestinian tensions following the president’s December decision to “take Jerusalem off the table,” the Trump administration decided to punish them by withholding funds that help support over 1.5 million Palestinian refugees.
Slashing aid to the Palestinian refugee relief agency UNRWA cruelly hurts some of the region’s most vulnerable and neglected people. It increases the prospects for despair, unrest -- and ultimately -- violence.
There are some legitimate concerns about the ways in which UNRWA operates, and good ideas about how it could change for the better. But improving the organization’s work and funding structure will require thoughtful and deliberate reforms -- not recklessly cutting off all of its funding before that process of reform has even begun.
Trump’s move has Israel’s top security officials deeply worried. Last week, they warned the Israeli government that weakening UNRWA could push the humanitarian crisis in Gaza past its breaking point and lead to a serious new round of protests and fighting with Israeli forces all along the border.
With many Gazans unemployed and living with severely limited access to food, water and electricity, the IDF’s chief of staff this week warned the Israeli cabinet of imminent total collapse there -- and urged leaders to take steps to prevent it.
The administration’s refusal to help maintain stability or pursue real peace is only fueling more conflict. When the US abdicates leadership, it’s Israelis and Palestinians who will pay the price.
Here’s the good news: A growing number of members of Congress understand the damage that Trump and company are doing, and they’re standing up to oppose this reckless policy. Over 100 members -- including Representative Brenda L. Lawrence -- have signed a new letter to President Trump urging him to continue funding to UNRWA and bilateral aid to the Palestinian Authority.
J Street was proud to support and advocate for this urgent letter, which was led by Representatives Peter Welch and David Price. We mobilized supporters across the country to help make clear that slashing funds to vulnerable refugees is dangerous and unconscionable.
The letter sends a strong message:
“Deliberately exacerbating the hardship of the Palestinian people and reducing the ability of their government to function would only contribute to the benefit of those who reject engagement. Extremist and anti-Israel groups would be all too eager to fill in the vacuum, deepening their hold in the region and expanding their destructive influence on the prospects for a peaceful resolution of the conflict.”
The situation in Gaza is desperate -- but further suffering and conflict is not inevitable. We know that solutions are possible. Last week at an emergency conference to discuss the situation, Israel presented a billion dollar humanitarian assistance plan that could help bring new water treatment facilities, power plants and economic opportunities to the Strip.
Implementing this kind of much-needed plan takes creativity, vision and political will. A responsible US government would act now to head off disaster. Instead of bullying refugees and international institutions, it would rally Israeli and Palestinian leaders and the international community to help Gaza and prevent violence.
Right now, we have dangerous leadership in the White House. But we can’t just stand by while this administration lashes out at Palestinians and makes Israelis less safe. We can’t let a toxic mix of confrontation and negligence lead to more suffering and crisis in Gaza, the West Bank and across the region.
The Welch-Price letter is just the latest proof that a different vision of the US role in the Middle East is possible. Many of our elected officials are committed to standing up for diplomacy, partnership and humanitarianism.
At J Street, we’re determined to stand behind these pro-Israel, pro-peace members of Congress and work to elect even more leaders to stand alongside them and challenge the Trump agenda in 2018 and beyond.
Thanks for all that you do,
Jeremy Ben-Ami
President, J Street
P.S. -- You can thank Rep. Lawrence for signing the Welch-Price letter by calling her office: (202) 225-5802. It's important that we show members they have strong support from their constituents for staking out pro-Israel, pro-peace positions.