Under The Radar

The Trump administration’s daily assaults to American laws and norms have produced a sort of outrage fatigue in many of us. That can be dangerous.

As we hold our collective breath and cross our fingers–hoping that Muller’s investigation will provide enough evidence of criminality and/or treason to make impeachment imperative, or for the Democrats to regain control of Congress in 2018, or (even less likely) for Republicans in the Senate to put the national interest above partisanship– we have difficulty keeping up with the multiple ways this administration is undermining the rule of law and weakening democratic norms.

The Resistance needs a strategy that distinguishes between horrific decisions that can be reversed if and when sanity returns to the Oval Office (or Republicans in Congress grow a pair), and those that will have profound and long-lasting negative effects on our constitutional system. We can afford to bide our time on the first category–although a lot of people will be hurt in the meantime –but we have to be absolutely ferocious in resisting measures that will damage the country in the longer term.

The media has highlighted Trump’s failure to fill hundreds of second-and-third level positions in his administration. That failure is further evidence of the ineptitude of the current White House, but it is also a blessing in disguise. (Case in point: the current nominee for Chief Scientist at the Department of Agriculture is not a scientist; he’s a right-wing talk show host. Better vacancies than filling an administration with such people. ).  An administration that cannot function properly cannot do as much damage as one that efficiently pursues counterproductive policies.

At the same time, the media has been insufficiently alert to Trump’s alacrity in filling judicial vacancies. A recent report from Huffington Post began:

Thursday was a good day for Amy Coney Barrett. A Senate committee voted to advance her nomination to be a federal judge.

It wasn’t a pretty vote. Every Democrat on the Judiciary Committee opposed her nomination. They scrutinized her past writings on abortion, which include her questioning the precedent of Roe v. Wade and condemning the birth control benefit under the Affordable Care Act as “a grave infringement on religious liberty.” One Democrat, Al Franken (Minn.), called her out for taking a speaking fee from the Alliance Defending Freedom, a nonprofit that’s defended forced sterilization for transgender people and has been dubbed a hate group by the Southern Poverty Law Center.

But Republicans don’t need Democrats’ votes, and now Barrett, a 45-year-old law professor at the University of Notre Dame, is all but certain to be confirmed to a lifetime post on the U.S. Court of Appeals for the 7th Circuit — a court one level below the Supreme Court.

Barrett isn’t the only Trump nominee who is likely to upend settled Constitutional principles.

Consider John Bush. The Senate confirmed him in July, on a party-line vote, to a lifetime post on the U.S. Court of Appeals for the 6th Circuit. Bush, 52, has compared abortion to slavery and referred to them as “the two greatest tragedies in our country.” He has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted.

The Senate also confirmed Kevin Newsom, 44, to the U.S. Court of Appeals for the 11th Circuit in August. He wrote a 2000 law review article equating the rationale of Roe v. Wade to Dred Scott v. Sandford, the 1857 decision upholding slavery. He also argued in a 2005 article for the Federalist Society, a right-wing legal organization, that Title IX does not protect people who face retaliation for reporting gender discrimination. The Supreme Court later rejected that position.

Ralph Erickson, 58, was confirmed to the U.S. Court of Appeals for the 8th Circuit in September. As a district judge in 2016, he was one of two judges in the country who ordered the federal government not to enforce health care nondiscrimination protections for transgender people.

Judicial nominees yet to be confirmed have supported discrimination against LGBTQ people, the “personhood” of fetuses, and a state’s right to criminalize “consensual sodomy.”

If Trump has been dilatory in filling administrative posts, he’s been an Energizer Bunny when it comes to the courts.  He has already nominated 17 circuit court judges and 39 district court judges, far more than his predecessors.

He’s also got more court seats to fill, having inherited 108 court vacancies ― double the number of vacancies Obama inherited when he took office. (That’s largely thanks to Republicans’ despicable years-long strategy of denying votes to Obama’s court picks to keep those seats empty for a future GOP president to fill–a strategy that prioritized partisan advantage over justice by overburdening federal courts and causing lengthy delays for litigants.)

Federal judges have lifetime appointments. Usually, the country benefits from the fact that these jurists are insulated against the threat of arbitrary dismissal; federal courts are currently demonstrating the great value of an independent judiciary as checks on Trump’s most autocratic tendencies.

If the administration is able to fill the federal bench with Roy Moore clones, however, we can say goodby to checks and balances and the rule of law as we have understood it.

 

28 thoughts on “Under The Radar

  1. Under the radar.

    This isn’t about democracy, it’s about a takeover. It’s occurring because the radar has been knocked out of action. That always has to be the first step in an action plan. They’re not that stupid.

  2. The Religous Right/Far Right RADAR SCREEN is the so-called Christian-Zionist Alliance. It’s no alliance. It’s just the opposite. It allows for deception to be used against Democrats, Republicans, and More.

    Work on the erection of the screen started in 1970. It wasn’t totally effective until the early 80’s.

    It needs to be IMMEDIATELY torn down just like the “Berlin Wall,” if we want to retain some semblance of Freedom.

  3. Democracies aren’t built on deception. That’s why the Nazis first major target was the destruction of the Weimar Republic. America is experiencing the same thing. It just takes longer.

    Democracy was new to Germany. That’s not the case with America. It had to take longer for our democracy to start crumbling. However, the objective is the same in both cases.

  4. We’re becoming more and more helpless. Yesterday, players on one of Berlin’s major soccer teams kneeled during their opening ceremonies in support of the African-American NFL players in the U.S. who aren’t allowed to demonstrate EFFECTIVELY anymore in their own country. What a disgrace.

  5. I suspect Don the Con isnʻt actually making nominations. Most likely, Pence is filling out the forms with the names of these extreme “Christian” judges and then (gleefully) hands them over to the Orange Moron to sign. This is sickening. Meanwhile, our media – print, tv, and online – continue to cover Trumpanzeeʻs antics instead of giving us useful news such as we can find here in this blog (thanks again, Sheila!).

    One of the few reporters that seems to connect-the-dots is Rachel Maddow. She often shows whatʻs going on from Point A to Point Z. The rest of the media outlets are only giving us “breaking news” every hour on the hour. Another sharp analyst is Fareed Zakaria. For in depth interviews, Charlie Rose. For outside perspectives, I turn to NHK World News (from Japan) and BBC World news (British) and Al Jazeera. For a humorous take, Seth Meyers and John Oliver provide some comic relief (and we definitely need some relief).

  6. “…we have difficulty keeping up with the multiple ways this administration is undermining the rule of law and weakening democratic norms.”

    Are not these actions; in addition to the current administration admitting their intent to “deconstruct” our government as it has been constructed under the Constitution (plus all of their other crap), a confusing form of treason? If they succeed; and currently they are succeeding with amazing speed and accuracy, their “deconstruction”.

    Per my Webster’s Dictionary: “treason; the crime of trying or helping to overthrow the government of the criminal’s own country or cause it’s defeat in war.”

    Back to W.C. Fields’ on target description of their daily antics; “If you can’t dazzle them with brilliance, baffle them with bullshit.”

    In my mind; both descriptions fit their “Under The Radar” daily actions as we wait, hope and many pray; that Robert Mueller’s snail-paced investigation all Russian connections and payoffs, only one of their treasonous activities, would reach fruition before Trump presses that button…or North Korea carries out their threats.

  7. If, by some stroke of extreme good fortune, the morally bankrupt, soulless bag of flesh occupying the White House is impeached/indicted for treason, let us fervently hope that Pence is found complicit as well. Because he is almost certainly the one choosing these nominees. He is as dangerous and evil in his own way as the above-mentioned bag of flesh.

  8. I fully expected to see the Republicans put conservative and ultra conservatives on the federal benches. What is shocking is that they are putting Christian/Catholic extremists out there in order to roll back liberty in the name of righteousness.

  9. Marv really nailed it on his very first post. We’re at a terrible disadvantage unlike all the countries we read about in the news every day there going through all sorts of upheavals, revolutions, coup d’ etats and everything else that’s happening to them. We’ve been very fortunate in that we have never had any experiences like that going all the way back to the very beginning of the Republic with the exception, and it’s a very big one, of the American Civil War. In the mid-1930s we came close once again because of the dire circumstances that the great depression put the entire country in and just how fragile it made are social cohesion and within our politics. Thankfully, we had in the White House Franklin Delano Roosevelt who was able to various means of his disposal to essentially save the country.

    No one really in our baby boomer and millennial lifetimes has experienced anything like the social upheaval that occurred during the Great Depression and most of us only have recollections of what our fathers and mothers or grandparents told us about their experiences of growing up in such a calamitous period of time. Thus, we are woefully unprepared right now in figuring out a sensible way of dealing with what amounts to another attempt at a coup d’état, made even worse since large swaths of this country either fail to notice it or refuse to.

    We need to look for models in history and very likely models that do not pertain to our history in order to figure out what to do regarding the catastrophe we have right now and the even greater catastrophe we will have if we don’t do something about this. We can talk, write, sign worthless Internet-based petitions if but none of that’s going to get us anywhere when we have one political party that is dominating everything while in its competing political party is rudderless and unable to articulate any plan of action or any alternative views on how to combat this.

    If we’re going overcome this and also get past it and get the Bannon’s, the Sinclair’s, the Mercer’s, and the Russians out of this so the week inch our own course we’re going to have to scream bloody murder and perhaps protest as those did in regard to Civil Rights and in opposition to the Vietnam War did during the 1960s and early 1970s. We have to do in and of nonviolent fashion but we have to consider this as a possible course of action since the levers of power are mostly outside our grasp even though we’re the ones are supposed to have them ultimately.

    Meanwhile, while we’re trying to sort all of this stuff out and trying to articulate our views the world is moving on and we’re very much are running the risk of becoming an also ran on the world stage while we are politically imploding and with our society and our normal social connections doing the same thing. What we’re dealing with if is nothing short of an abomination and we’ve let it happen by not thinking it could happen or that there were people out there working to make sure that it did happen. Maybe the first step we need to take is to fully wake up and take a good hard look at where we’re at right now, where we will be if we do nothing to stop what is happening, and chart a sensible, easily understood course of action to confront what is happening at the local, state, and Federal levels and again, in a nonviolent way, beat its brains out. This is nothing short of war made more complicated because a foreign power has decided to involve itself in it and but we should not in any way be deterred from confronting all the aspects of this because the very future of this country is in our hands just as it always has been.

  10. These aren’t the short fingered vulgarian’s nominees. These are his poodle’s nominees. There is nothing we can really do about it until we again control the Senate. Given the current state of the Democratic party, that could be an uphill battle. We have to maintain something of the establishment voters, and attract the voters who rabidly rejected Clinton because she wasn’t Bernie, like the one who told me not to “scare me with the courts argument”. I hope she and the rest who also ignored the “courts argument” now realizes how precarious their hard-won rights are. And women’s reproductive rights (from Griswold to Roe and beyond) and the civil rights of LGBT persons are only the tip of the iceberg.

  11. Theresa,

    “What is shocking is that they are putting Christian/Catholic extremists out there in order to roll back liberty in the name of righteousness.”

    Just take a look at the Supreme Court. By putting the Christian/Catholic extremists in powerful positions like on the Circuit Courts, it will make it very difficult or almost impossible for Pope Francis to speak out like he has before on certain socio/political issues of vital importance.

    Takeovers are meant to be 100% effective. There is no room for exceptions.

    Their weakness is that they eventually have to drop their DECEPTION and COME OUT IN THE OPEN. That’s the time when a TAKEOVER can be effectively challenged and it is also the FINAL STAGE.

    In my opinion, Trump/Pence/Bannon has forced the issue much, much earlier than the establishment’s Charles Koch had anticipated. That eventually could be the “Achilles heal” for both.

    A pertinent and enjoyable read would be…”Coup d’Etat: A Practical Handbook—A Brilliant Guide to Taking Over a Nation” by Edward Luttwak (Fawcett World Library, Greenwich, Conn, 1968).

  12. I suggest, along the same lines as other commenters in this thread, that we start paying attention to what is happening in the federal courts (instruction in how to do so would be much appreciated, Sheila) and learn how to use what little discipline process there is for federal judges.

    Here is what I found on Wikipedia, which is not my research source of choice, but this article is well sourced, with this particular section footnoted to the Yale Law Journal.

    “Article III federal judges” (as opposed to judges of some courts with special jurisdictions) serve “during good behavior” (often paraphrased as appointed “for life”). Judges hold their seats until they resign, die, or are removed from office. Although the legal orthodoxy is that judges cannot be removed from office except by impeachment by the House of Representatives followed by conviction by the Senate, several legal scholars, including William Rehnquist, Saikrishna Prakash and Steven D. Smith, have argued that the Good Behaviour Clause may, in theory, permit removal by way of a writ of scire facias filed before a federal court, without resort to impeachment.[1]

    Since the impeachment process requires a trial by the United States Senate, and since the constitutional provision concerning federal judges’ tenure cannot be changed without the ratifications of three-fourths of the states, federal judges have perhaps the best job security available in the United States. Moreover, the Constitution forbids Congress to diminish a federal judge’s salary. Twentieth-century experience suggests that Congress is generally unwilling to take time out of its busy schedule to impeach and try a federal judge until, after criminal conviction, he or she is already in prison and still drawing a salary, which cannot otherwise be taken away (see Nixon v. United States, a key Supreme Court case about Congress’s discretion in impeaching and trying federal judges).

    Here’s the citation: Saikrishna Prakash & Steven D. Smith, “How To Remove a Federal Judge”, 116 Yale L.J. 72 (2006).

    Now. How do we proceed from here?

  13. My apologies for extremely long posts.

    Here’s what Wikipedia says about the discipline process itself:

    Edit

    The discipline process of federal judges is initiated by the filing of a complaint by any person alleging that a judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of the office by reason of mental or physical disability.”[5] If the chief judge of the circuit does not dismiss the complaint or conclude the proceedings, then he or she must promptly appoint himself or herself, along with equal numbers of circuit judges and district judges, to a special committee to investigate the facts and allegations in the complaint. The committee must conduct such investigation as it finds necessary and then expeditiously file a comprehensive written report of its investigation with the judicial council of the circuit involved. Upon receipt of such a report, the judicial council of the circuit involved may conduct any additional investigation it deems necessary, and it may dismiss the complaint.[6]

    If a judge who is the subject of a complaint holds his or her office during good behavior, action taken by the judicial council may include certifying disability of the judge. The judicial council may also, in its discretion, refer any complaint under 28 U.S.C. § 351, along with the record of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference of the United States. The Judicial Conference may exercise its authority under the judicial discipline provisions as a conference, or through a standing committee appointed by the Chief Justice.

  14. Tom,

    “We need to look for models in history and very likely models that do not pertain to our history in order to figure out what to do regarding the catastrophe we have right now and the even greater catastrophe we will have if we don’t do something about this.”

    Terrific post. All the answers are there. We just have to RAISE OUR STRENGTHS in order to use them. That’s not easy. Our nervous systems have not been trained to meet the difficulties we are now facing.

    Cognitive dissonance is our main weakness. We probably need an EMOTIONAL BOOT CAMP to get us in shape for the ordeal.

  15. It’s like watching a train wreck in slow motion. First, how in the world do these bigoted fools get to be judges (lower levels) in the first place? Then, giving any legal responsibility to Mike Pence is asking the Trump wrecking ball to destroy the separation of church and state and will turn us into a theocracy like those of the Dark Ages.

    Thanks for pointing out how much trouble we’re in thanks to the idiots who voted for these creatures and the 92 million faux patriots who didn’t vote at all.

  16. “Our nervous systems have not been trained to meet the difficulties we are now facing.
    Cognitive dissonance is our main weakness. We probably need an EMOTIONAL BOOT CAMP to get us in shape for the ordeal.”

    Once again, bravo Marv!

    When this all started in 2015 we all looked at this as being as more or less a traditional presidential campaign. We weren’t cognizant of the fact that several “dark forces” were quietly conspiring to turn what we again thought was going to be a more or less normal campaign into the horrific freak show that the campaign and Trump’s subsequent presidency would become.

    While we all knew that it was going to be a very raucous fight of we didn’t really imagine that the Russians would be involved to subvert it. We didn’t realize that Wiki Leaks, also linked to the Russians, and all these dastardly far right wing groups, who were pouring money into social media to twist the truth inside out in order to make reasonable people take positions that are fundamentally irrational, would act together as a nexus.

    This has amounted to nothing less than a war on both our political system but also our society and what holds it together. Extraordinary measures will be needed for our country to recover from this as well as our society and one holds it together-what has traditionally held it together which is all we know. The psychic strain that this is putting us all through is eroding our ability to cope with it with more and more people that normally keep track of things like this eventually coming to the point where they are tuning it out in order to preserve their sanity.

    I must admit that when I am away from TV and the Internet I’m probably better off but I find myself also wondering what stupid thing or multiple stupid things have been done by this administration while I’ve been out of contact with the news, hard news, verifiable and vetted news.

    This reaction is what all these people that want to hurt this country and all of us deeply are counting on. That we will tune it all out to keep from losing our minds. That’s why your idea of having an emotional boot camp is such a valid one. Not sure of course how that would work but somehow, someway, we have to be able to ramp ourselves of to confront what is being done to us and also an administration that seems to be on a course which will involve us in endless warfare and transform our society into something that would even scare George Orwell.

    We simply cannot allow that to happen both because it’s being done to us but also of what the impact of such a terrible outcome would be for the rest of the world have counted on this country for leadership in one where another since the end of the first world war. If we let this derail ourselves and our interactions with the global community that global community will look elsewhere for guidance and we may find ourselves in a world that is totally antithetical to this country’s existence our very survival. I’m sorry to be as blunt as that but that trends in regard to how this is all shaking out are not in our favor and may grow worse very quickly if these maniacs that are trying to take over this country, lock, stock, and barrel, are given the opportunity to pull off what they’re trying to do which they have no right to do through our acquiescence and our lack of focus in defending the country that we love so much-the United States of America.

  17. I would suspect these these appointments have the approval of Mike Pence. My other suspicion would be these judges have a belief in the “Prosperity Gospel”, that is you are wealthy and healthy because of god’s favor.

    Woman’s rights are being legally attacked, but also the Harvey Weinstein’s use their power and wealth to physically attack or intimidate woman. It seems that people who have been close to Weinstein are now pleading we had no idea. Politicians and wealthy powerful people who exploit woman are protected by a code of silence.

  18. Why are the conservatives so consumed with sex, abortion and homosexuals and making sure that their way is law? Serious question, I just don’t get it. Every single time I hear someone on the right make these statements, I just want to ask them why they are so concerned about what happens in everyone else’s bedroom.

  19. Tom,

    America’s body politic has been exposed for almost 50 years to a campaign of MASSIVE RESISTANCE against civil rights in the form of POLITICAL GASLIGHTING. That’s WHY there is a need for the EMOTIONAL BOOT CAMP. I had advertised for one in “The Nation Magazine” in June of 2008, in anticipation of the creation of the Tea Party. When the potential participants learned how DEEP they would have to go to understand the dangers that Barak Obama would face if elected President, they started to pull out. I had to evetually call it off.

    Early on, I was attacked by an editorial in “The New York Times” as being anti-White for predicting [in The Nation Magazine] that Barack Obama would hit an “iceberg” if elected President. However, I didn’t know at that time that Charles Koch would eventually finance what would be called the TEA PARTY.

  20. Nancy,

    Exactly right. That why I keeping posting. You never know when freedom of speech will have to be exercised, at best, underground. The way things are looking right now it might possibly be much sooner than later.

    If for example, Trump would start even a ground war against North Korea he could announce and with Congressional consent the creation of Sedition Laws that what prohibit criticism of the President during the time of war. Its happened before, not that long ago.

    The fact that the laws might be found to be unconstitutional would be, for the most part, irrelevant.

  21. AgingLgrl,

    “Why are the conservatives so consumed with sex, abortion and homosexuals and making sure that their way is law? Serious question, I just don’t get it.”

    Listen closely to Bannon and the Alternate Right. They’re just biding their time for an eventual assault against the Jewish Community.

  22. Ugh Marv. I can’t listen to Bannon and their awful humans that cheer everything that is hateful toward other citizens and humans. I can read a summary but watch? I only have one tv and throwing things at it would make it topple over and I can’t afford to replace it. Besides, John Oliver is on tonight and I need my weekly fix. ha ha.

  23. Aging Girl asks

    “Why are the conservatives so consumed with sex, abortion and homosexuals and making sure that their way is law? Serious question, I just don’t get it.”

    Because they suck up to Kristofascists to elect them.

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