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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!