Why should the Democrats filibuster Gorsuch? The endgame…

I’ve heard friends and commentators lament, “Why should we filibuster if the GOP can go nuclear and get rid of the filibuster?”  Below, I lay out one immediate benefit and then three paths, each of which justifies a filibuster.
Gorsuch is too right-wing and lacks the temperament (see my Slate piece today). For a bunch of reasons, I have been persuaded that Gorsuch is probably to the right of Scalia. He has been elusive by any standard in the hearings, but a few things emerged: He signaled to insiders that he will probably overturn Roe v. Wade, as part of the Casey balancing test for overturning precedents (Gorsuch acknowledging that it’s “a precedent” does not save it from being overturned, particularly not in the way he carefully phrased his Casey-minded answer). Corey Brettschneider has analyzed Gorsuch’s writings thoroughly and found evidence suggesting that he might find that the Constitution grants fetuses a right to life, which would lead to a national ban on abortion. Brettschneider also finds a clear indication in Gorsuch’s dissertation that he not only opposed the right to marriage equality, but he demeaned that claim, approvingly of a Scalia passage that put gay marriage in the same category of unprotected claims as bestiality and incest. 
Moreover, beyond the whole unprecedented Garland travesty, there has never been a Supreme Court appointment during a criminal investigation of a president or a presidential campaign.
Let’s first acknowledge the benefits of delaying a fifth vote to uphold Trump’s immigration order (a.k.a., “#MuslimBan”). These cases are expedited, so the case would be argued sooner than usual.
But beyond that, the endgame has three paths, all on balance reasons to filibuster:
1. The GOP goes nuclear and permanently ends the filibuster for SCOTUS. Fine. Then let’s say the rest of the Justices stay on the Court. We take back the White House and Senate in 2020, and they can no longer filibuster a liberal appointment. Or if a seat opens after 2018, maybe we have taken back the Senate and we don’t need the filibuster anymore. (I note that it is an uphill battle to take back the Senate because the Democrats have to defend so many red-state seats, but if Trump is in the mid-30s approval ratings with the same kind of “strongly disapprove” numbers we see now in the mid-40s or more, I like our chances).
2. The GOP fails to nuke, the seat remains open, but meanwhile, the FBI investigation produces an indictment of Manafort, Stone, Flynn, etc., and we have a full blown FBI investigation of the President in 6 months with subpoenas and hearings. I don’t see the GOP moderates going nuclear then, and the seat remains open for a while, maybe past the 2018 elections, maybe until 2021.
3.  The GOP fails to nuke, the seat remains open, but Trump holds off on scandal and indictments of his campaign staffers long enough to make another appointment. Maybe nominee will be less right-wing than Gorsuch. We know Gorsuch is going to be close to Scalia, and perhaps even more conservative overall in areas like abortion/fetal rights, the death penalty and jury rights. He will be a 5th vote to undermine voting rights, and many other rights, including gay marriage. Maybe another nominee will be more moderate, maybe not. Who knows? Let’s cross that bridge when we get to it. If they don’t have the votes to go nuclear for Gorsuch, then I’d guess they’d lack the votes for going nuclear for a clearly more right-wing nominee.
Some have said, “Don’t waste the filibuster now! Use it for the seat that might tip the Court on Roe v. Wade!” First of all, if not now, when? Gorsuch is the nominee now. Who knows if there will be another opening? And moreover, if you’re worried about the Senate GOP going nuclear now, why won’t they go intercontinental ballistic nuclear when they are finally getting their fifth vote to obliterate Roe?  If we don’t filibuster now, there’s not going to be a successful filibuster ever.

Trump firing U.S. Attorneys after retaining them is NOT normal

I’ve seen some expert commentators argue that it is traditional for new presidents to replace U.S. Attorneys. That’s true. But it is entirely untraditional and abnormal to fire U.S. Attorneys after retaining them and allowing them to continue in their offices.

Admittedly, it’s a bit of a gray area because Trump is so early in his term. Nevertheless, every other president made decisions about which U.S. Attorneys to retain or replace immediately in the beginning of their terms. The reason for this tradition is to have a clear marker of turnover to avoid precisely this kind of appearance of interference (or actual interference) in investigations and the administrative justice.

There is only one modern precedent for this conduct, and it is not one to emulate: George W. Bush’s dismissal of seven U.S. Attorneys in December 2006.  The Washington Post reported at the time: “Although Bush and President Bill Clinton each dismissed nearly all U.S. attorneys upon taking office, legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.” (Gonzales: ‘Mistakes Were Made’). As the story unfolded, the Bush administration had warned these U.S. Attorneys and a handful of others that they weren’t prosecuting enough voter fraud (i.e., Democratic voters) or public corruption cases (i.e., Democratic office holders).  Chris Christie, the New Jersey U.S. Attorney, and Steven Biskupic, the Wisconsin U.S. Attorney, got themselves off the firing list by following the marching orders. Biskupic’s case was particularly scandalous, as the Wisconsin prosecutor won a conviction of a Democratic officer that was later overturned and harshly criticized as baseless by federal courts. The scandal led to Alberto Gonzales’s resignation.

It certainly appears that a similar interference may have occurred on Friday. Bharara has implied as much, tweeting: “By the way, now I know what the Moreland Commission must have felt like.” The Moreland Commission was investigating corruption in New York until Governor Andrew Cuomo suddenly disbanded it. The rumor was that the commission was getting too close to Cuomo for comfort. If Bharara can back up this implication with some solid facts, hold on to your seats. Trump might not hold on to his office, if the right dominoes fall.

To start toppling dominoes with subpoenas or legal discovery, the only solutions now are 1) a special federal prosecutor (don’t expect Trump’s DOJ to allow this);  2) Congressional committee hearings (good luck); and 3) state attorneys general investigating, the most likely option politically.
 

ACTION: Ask NY Atty Gen to investigate and dissolve Trump Org. 800-771-7755

Now that Trump has fired US Atty Bharara, NY Atty General Eric Schneiderman has the special power and duty under NY Bus. Law 1101(a)(2) to investigate: 1) unconstitutional “Emoluments”; 2) Trump financial records; 3) Russian influence; 4) violations of Foreign Corrupt Practices Act and Iranian sanctions; 5) obstruction of justice.

CALL NY AG Helpline: 1-800-771-7755. Tweet address: @AGSchneiderman.  See Jed Shugerman at Shugerblog.com.

Trump just fired U.S. Attorney Preet Bharara this afternoon, after Trump had decided to keep Bharara on the job in January. Bharara had been very popular with Republicans for his prosecution of corrupt politicians. So why the sudden change?  When Trump asked for Bharara’s resignation yesterday, the N.Y. Times explained:

Last week, several public interest groups, including Democracy 21 and Citizens for Responsibility and Ethics in Washington, called on Preet Bharara, the United States attorney for the Southern District of New York and an aggressive prosecutor of corruption, to investigate the Trump Organization, the New York-based business through which Mr. Trump owns and controls his hotels, golf courses and other holdings. But that effort might not go far because the Department of Justice on Friday asked Mr. Bharara and 45 other United States attorneys appointed by former President Barack Obama to resign.

When Bharara refused to resign, Trump fired him. Coincidence? What was Bharara already investigating? Now that Trump will replace Bharara with his own personal crony to protect his business empire, who else can investigate?

The answer is simple: New York State Attorney General Eric Schneiderman can bring the investigation that Preet Bharara might have.  I have written before about how every state gives its attorney general the power — and the duty — to investigate corporate corruption and law-breaking with the Quo Warranto procedure. In New York, that power is written into New York law. New York’s Business Corporation Law section 1101 grants the attorney general the authority “to bring an action for the dissolution of a corporation” if:

the corporation has exceeded the authority conferred upon it by law, or has violated any provision of law whereby it has forfeited its charter, or carried on, conducted or transacted its business in a persistently fraudulent or illegal manner, or by the abuse of its powers contrary to the public policy of the state has become liable to be dissolved.

N.Y. Bus. Corp. Law § 1101(a)(2). New York courts have explained that violations of federal law are also grounds for dissolution, so Trump’s constant violations of the Emoluments Clause are grounds for this investigation and dissolution or forced divestment. In re People (Int’l Workers Order, Inc.), 199 Misc. 941, 976, 106 N.Y.S.2d 953 (N.Y. Sup. Ct. 1951).

Call, tweet, or write to Attorney General Eric Schneiderman now to get him to start this investigation to understand what Trump and his corporations are doing, how the corporation is a vehicle for foreign “emoluments,” and how these foreign entanglements are endangering the United States.  And if you live in other states, you can contact your attorney general, too.  I’ll update this blog with state-by-state action plans soon.

NY Attorney General Eric Schneiderman’s Twitter address: @AGSchneiderman

NY Attorney General’s General Helpline: 1-800-771-7755

TDD/TTY Toll Free Line: 1-800-788-9898

Mail: Office of the Attorney General
The Capitol
Albany, NY 12224-0341

 

 

 

 

 

Did Israel just ban me from visiting?

I wake up this morning with major cognitive/emotional dissonance. On the one hand, I am celebrating Team Israel’s improbable sweep of its round in the World Baseball Classic, with wins over South Korea and the Netherlands, teams loaded with major league stars. I LOVE this story. On the other hand, I just realized that the Israeli Parliament (the Knesset) just banned me from visiting the country where I lived for two years, met my future wife and fell in love, and formed my identity as a Jew.

The ban would apply not only to people who call for boycotting Israel, but also to those who support boycotts of any Israeli institution or any “area under its control,” obviously meaning the settlements.

Although I don’t support full “BDS” (boycott/divest/sanction) of Israel, I do support a boycott and divestment of Israeli settlements and their products. So even though I don’t support full “BDS,” Israel’s govt is boycotting, divesting and sanctioning people like me.

I’m not sure what the next steps are. But if the Israeli government says I may not enter legally, I cannot travel there, so I am cornered into a de facto travel boycott. And even if I didn’t support boycotting of the Israeli settlements, how could I possibly support country with this kind of discriminatory, undemocratic policy?

We just had a meeting this week at our son’s Jewish high school about the school trip to Israel next spring for seven weeks. That night, I was so excited for him to take the adventure with friends and without us, to take a leap into independence. My adventure in Israel when I was 15 was transformative in many ways. I want him to share that experience. Today, I feel worse than ambivalent about Israel, I feel torn and betrayed. If I wanted to visit him there, would I even be allowed to?   This travel ban seems to be a more aggressive turning point. Commentators across the political spectrum have been saying for years that as long as the two-state solution is stalled or dead, Israel cannot be both a Jewish state and a democracy. If Israel wants to claim to be a democracy, the Palestinians cannot live as stateless disenfranchised third-class non-citizens indefinitely. As Israel approaches the 50th anniversary of the Six Day War and seizing control of the West Bank and Gaza, it seems to me that the Knesset has chosen “Jewish state” over “democracy” more aggressively and decisively than ever before. No, it is worse than that: It is actively rejecting the core principles of democracy.

The best piece I’ve seen as a Jewish parent is Peter Beinart’s: “I support boycotting settlements. Should I be banned from Israel with my children?”

His conclusion is most powerful:

“Now, in my long-running battle with Netanyahu for my children’s identity, the prime minister has struck an unexpected blow. The good news is that in a few years they will start going to Israel on school trips without me. I hope they visit many, many times, and come to cherish the place as I do. My mother once told me that my grandfather, for whom my son is named, was never happier than when he was arguing politics on Dizengoff Street. God willing, my son and daughter will pass many days doing that too.

“But if I can’t be there with them, so be it. My parents gave me many gifts, but the most important was their example. They loved South Africa and they opposed apartheid. And when the tension between their lives and their principles grew too great, they chose the latter, and they left. As I child, I sensed their sadness and their isolation. And I felt proud to be their son.

“In my family, we have a tradition. We lose countries but we keep our self-respect.”

Read more: http://forward.com/opinion/365320/i-support-boycotting-settlements-should-i-be-banned-from-israel-with-my-chi/

Update: My friend Rabbi Matt Carl adds:  “Plenty of us said ‘if there’s a Muslim ban, I’ll register as Muslim.’ I’m happy to claim I support BDS for this/analogized purpose.”  Absolutely the right moral response. Count me in.

Trump’s new travel order is still unconstitutional

Trump’s new executive order on travel and entry today continues to temporarily block entry to six predominantly Muslim countries (removing Iraq). It appears to fix two of the biggest constitutional problems:

  1. It no longer includes a preference for “religious minorities” in Muslim countries, a provision that was designed to benefit Christians over Muslims, as Trump himself said to the Christian Broadcasting Network.
  2. It clarifies that Green Card holders and those already holding visas are permitted to enter.

The Ninth Circuit, by a 3-0 decision, had blocked the first travel ban only on the basis of the Due Process clause of the 5th Amendment, a relatively narrow constitutional ruling that focused mainly on problem #2, because the Green Card holders and visa holders were denied due process.  Many observers criticized the “religious minority” exception because it most clearly violated the Establishment Clause in its text.

But the problem is that if this revision is only in response to the unanimous Ninth Circuit opinion, they don’t address the other constitutional problems under 14th Amendment (Equal Protection) and the Establishment Clause, and the two statutory problems based on the Immigration and Naturalization Act and the Religious Freedom Restoration Act.

Judge Leonie Brinkema of the Eastern District of Virginia focused on the Establishment Clause in her opinion blocking the first order on Feb. 13th.  It summarized President Trump’s public comments calling for a “Muslim ban,” for three pages. Even setting aside the preference for religious (Christian) minorities, it held that the public comments were sufficient to show an unconstitutional purpose of “advancing one religion over another” (citing McCreary County (2005) and Santa Fe (2000)).

Brinkema wrote, “The ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Even if the ban did not apply to all Muslims, it was still discriminatory because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise… It is a discriminatory purpose that matters, no matter how inefficient the execution.”

These same problems don’t magically disappear just because the old order has been revoked. You can’t “unring a bell,” as lawyers often say. Once government officials have stated the discriminatory purpose, they need to fix this problem with extra protections. The same purpose still applies here.

It seems to me that the only fix now would be to get rid of the blanket temporary bans on Muslim countries entirely, and actually implement a vetting plan without a ban. The problem would remain that the Trump administration could apply its vetting in a discriminatory way, but we can cross that legal bridge when we get to it (no immigration pun intended). This leads me to think that, because the Trump administration did not attempt to fix its order with a more permissible method — one that would survival legal challenges but also would be open to anti-Muslim manipulation in practice — then this “revision” is really meant to trigger another round of court battles to fire up the base and drive cultural wedges. Bannon wants a nationalist fight, a culture war, rather than effective policies. This new order is a second battle on this immigration front of the culture war. And their timing is intentional: a distraction from the Russian scandal/Sessions perjury charges, as lawyers will challenge this order all around the country.

In any event, Brinkema did not need to address the Equal Protection argument nor the statutory arguments under the Immigration and Naturalization Act (which prohibits religious discrimination) and the Religious Freedom Restoration Act. There are complexities to those arguments based on the legal standing of non-citizen non-residents without visas, which is why the Establishment Clause remains the most important barrier. But undoubtedly all of these arguments will get fleshed out in the near future in some big decisions.

I also wonder if there is a political cost to removing the “religious minority” exception, because Christian groups have mobilized to support persecuted Christians in Muslim countries. Now those refugees, who are the most popular refugees among the Republican base, are now unprotected and excluded. I wonder if any evangelical groups complain publicly. I would hope religious groups would complain about the ban for many humanitarian reasons.