The Mahablog

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The Mahablog

What to Do About the Corrupted Courts

The new news is that Steve Bannon has been indicted by New York state on charges that he defrauded donors who gave money to a campaign he co-organized to build a border wall. He was pardoned by Trump for similar federal charges, but a presidential pardon doesn’t apply to states. Heh. He’s expected to surrender tomorrow.

So last night we learned that the Mar-a-Lago search warrant turned up a document about some other country’s nuclear weapons.  In sum:

We don’t know if the nuclear secrets were in the basement or the office or a linen closet or spread under a leaky chafing dish in some banquet hall. What we do know:

Some of the seized documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.

Documents about such highly classified operations require special clearances on a need-to-know basis, not just top-secret clearance. Some special-access programs can have as few as a couple dozen government personnel authorized to know of an operation’s existence. Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location.

There has been robust criticism of Judge Cannon’s special master decision. Legal scholars like Andrew Weissmann were driven nearly speechless by what a steaming pile of crap the decision is. For now I’d like to just point to what Dahlia Lithwick and Mark Joseph Stern write at Slate.

The judiciary, they write, has been deeply corrupted with Trump-appointed Federalist Society judges, like  Aileen M. Cannon. And this is going to be a huge impediment to the United States for many years, because these lawyers are not just corrupt; they are also young.

So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives—and the pain of hearing from every quarter that nothing can be done to remedy it.

We watched the same pattern play out at the end of this last Supreme Court term. One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law. Smart lawyers dutifully digested these opinions and set to work figuring out just how the EPA, or public school districts, or state legislatures that want to stop mass shootings can plausibly work around these new tests. And of course, were we living in a rational regime in which the rule of law governed, that would make perfect sense. But if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

In short, lawyering alone is not going to help us. Playing by the rules is going to leave us vulnerable. The first and most reasonable solution is expanding the courts.

Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named Donald Trump) often face yearslong court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of Trumpism. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

Republicans will scream about “court packing,” but after the Dobbs decision I don’t think a majority of Americans will mind at all. I think this has to be done, And all we need is a Senate majority to do it.

There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

Term limits would require a constitutional amendment, I’m pretty sure. I assume Congress could put limits on courts’ jurisdiction to strike down democratically enacted laws, but I’d have to think about that one. What if some future Congress passes some crap right-wing laws?

But, yeah, our future depends on the midterms and enough Democrats with spines to do what needs to be done.

12 thoughts on “What to Do About the Corrupted Courts

  1. Not my idea, but someone said Cannon is part of the pipeline to deliberately funnel lower court rulings up to the Supreme Court, where their good friends from the 18th century will take whack-a-doodle ideas and turn them into settled law.

  2. Term limits would require a constitutional amendment, I’m pretty sure.

    Unlike for members of Congress and the Presidency, the Constitution defines absolutely no qualifications for judges/Justices; therefore, it seems reasonable that term limits could be established by ordinary statue (IANAL, so take with a grain of sand).

    I assume Congress could put limits on courts’ jurisdiction to strike down democratically enacted laws, but I’d have to think about that one. 

    Article 3, Section 2: 

    the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    So Congress can absolutely set limits on what cases the Court can hear.

    • In fact, the Constitution says (Article III, Section 1) "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." It's my understanding that means that as long as they don't do anything illegal, they've got a job, and they can only be removed by impeachment. 

    • Yes, “Congress can absolutely set limits on what cases the Court can hear.” In that case I wasn’t wondering if they could do that, but whether it would be a good idea. As I wrote in the post, “What if some future Congress passes some crap right-wing laws?” Meaning, what if the shoe is on the other foot, and Congress passes crap that really needs to be found unconstitutional. Is this a power that we want to limit? We need to think long and hard about that one.

  3. It seems our country is being overwhelmed by poor judgement or being skillfully manipulated into making poor judgements.  Good judgement involves being able to envision correctly the outcomes of various choices.  Judges need to be well above average in this skill and well insulated from forces that might bias their judgement.  

    This does not seem the case in Judge Cannon's decision.  Many credentialed and enlightened voices strongly differ from the Judge's decisions to this point. They are seeing pitfalls and bad outcomes from this decision. Is it not good judgement to question the good judgement of the Judge at this point.  It is also possible the Judge has been manipulated.  Neither possibility bodes us well as a country.  It appears an increasingly larger number of voters are seeing this and other poor judgements, and will vote accordingly in November.  This is only the first step in a long journey, I fear.

  4. Going with the most likely scenario in November – Dems hold the Senate and lose the House. (There's time for Republicans to further injure themselves in House races, but the projection now doesn't favor Dems holding the House.)  Democrats will control judicial appointments for two more years. That's the most important thing that may come out of Congress for two years. The GOP will do circus investigations and show harassment of people like Dr. Fauci. 

    The appellate federal courts have to be the focus. That's where we counter idiots like Judge Lose Cannon. Suppose the Democrats take back the House in 2024 and the White House. That's when expanding the courts through legislation becomes possible. If the USSC has struck down same-sex marriage, public support for such a change may be there. It's not that there are that many gay people married – but the idea that you can love who you love and have equal rights in your marriage is mainstream. Coupled with blows to women's rights, the majority may be open to adjusting the mix of the court to reflect the beliefs of the people. 

    Regarding The Former Guy (TFG) – he's NEVER faced a jury of regular people in a criminal trial. I think the prospect terrifies him. (opinion, granted.) TFG is ratcheting up the violent rhetoric. IMO, TFG wants spontaneous violence against the federal gov't to make the DoJ back down on bringing charges. It won't work.  My gut feeling is that there won't be a reaction by the cult until AFTER charges are filed. I wish it would happen before Nov, but I doubt it.

    If the candidates for TFG (especially Senate) go down in flames in Nov, and TFG gets charged in Jan, the cult will feel their grip is weakening. And they will lose their shit. The panic will set in deeper when Bannon is facing jail in NY, Alex Jones is cleaned out in civil suits, and Rudy is charged in GA. I don't think domestic terrorism from the White Nationalists will drive up support for the GOP. A sweep in 2024 is totally realistic.

  5. Respectively, Thomas Jefferson was 83 years-old when he died.  And John Adams was 90.

    They both died exactly 50 years after the Declaration of Independence was signed: 7/4/26.

    Both men lived very long lives.

    Particularly for that era.

    Americans' life-expectancy didn't top 60 years of age until the mid 1930's.

    Prior to our Civil War, people rarely made it to 50, let alone past 60.  In the late 18th Century, and early to mid 19th Century, life expectancy was below 50.

    So a lifetime position back in the late 18th Century, probably meant a decade after you were put on the US courts. Maybe more.  But maybe less, too.

    Putting in 18 year terms makes so much damn sense that I'm sure RepubliKKKLANs won't allow it.

  6. Times are strange when Bill Barr might be the one who saves the world. He's popped up a lot since it was revealed that Trump stole secrets about other countries' nuclear weapons. "The Art of the Deal" indeed.

    • Secrets of the nuclear capabilities of a foreign power – why does it sound like N. Korea? We will probably never know, but N. Korea is where tRump thought his overwhelming force of personality would overwhelm the simple-minded tyrant.


  7. It's not really that "ex-presidents are above the law," it's that Republican ex-presidents are above the law. There is a zero percent chance this judge would find the same way for Obama, Biden, or any other Democrat.

  8. Listening carefully to everything Barr said, I have a different take. He's not cleaning up his act.  All of the legalistic stuff that sounded pro-indictment was capped off by his statement that he thinks indicting a former POTUS would be bad for the country so he thinks that shouldn't be done.

    I think he was just trying to lull us into thinking he's turned on TFG, when actually his landing place is the most radical alarming proposal: Oh, yeah, let's all agree that anyone who can get elected President can then commit any crime with impunity!! 


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