Should courts have the last word?

Gordon L. Weil

“The ball’s in your court.”

This time-worn sentence meaning that you have the responsibility now has taken on a new and strong meaning these days.  Now, at widely separated places, the ball is in the court – of a court.

Most familiar are the cases based on charges made against former President Trump in criminal and civil case in federal and state courts.  Ultimately, many of them are likely to end up before one tribunal – the U.S. Supreme Court.

Aside from the merits of these cases against Trump is the effect of their proceedings and possible outcomes on his chances for nomination by the Republican Party and election as president.  The balls in these courts could not be more important, perhaps even less for Trump’s actions than for his political future.  By inference, the decisions could affect the country’s future.

Because these cases are so numerous, it is likely safe to say that any one of them could produce court action any day.   They provide the ongoing background for the race to the White House.

The Trump cases help place the court system itself on trial. The Supreme Court and some federal and state courts have become embroiled in current politics, which puts them in focus.  Once having begun to make rulings on political issues, the courts seem to be drawn ever more deeply into politics.   As this has happened, public confidence in the Supreme Court has fallen.

The American judicial system has made the Supreme Court the ultimate authority on the meaning of the Constitution, a document whose application to a situation unforeseen when it was written remains to be determined.  Neither Congress nor the president have the final say; the Court alone has the last word. 

The result is that, under the U.S. system, final decisions are made by unelected justices. And their views of just what is the last word may change as rulings on race and abortion have shown.

While this situation is unlikely to change, it raises the question of whether the politics of one generation can reach across decades to later generations.  Taking American political evolution into account might reduce concerns about the politicization of the Supreme Court.  This becomes increasingly an issue.

In other countries, the question of courts making the final decision is now at the center of political controversy.  In these countries – the United Kingdom and Israel – there is no written constitution.

In the U.K., the government seeks to be able to transfer asylum seekers after arrival in its jurisdiction to the country of Rwanda in Africa.  But its Supreme Court has ruled that the U.K. agreement with Rwanda would force Britain to violate international agreements that have been adopted by its Parliament.

The British system gives the final word to Parliament and not to the Supreme Court. In the absence of a constitution, the Supreme Court must accept acts of Parliament and cannot overturn them.

Now, the government has passed a new law to overrule the U.K.’s previous acceptance of some international human rights treaties.  That would prevent the Supreme Court from applying those treaties, and the Rwanda deal could proceed.  By overruling treaties,  the U.K. could damage its international credibility. 

A similar situation has arisen in Israel.  For many years, the Supreme Court has determined if laws meet a standard of “reasonableness” and, if not, they may be overturned.  Certain laws are deemed to be basic and, generally, they may not be overturned.

The Knesset or Israeli Parliament has passed a law stripping the Supreme Court of the ability to use “reasonableness” and emphasizing the authority of the Parliament to have the last word on the law.  The Supreme Court has overruled this basic law as not meeting the rule of reasonableness.  The issue is sure to continue to be contested.

The America, British and Israeli situations revealed that determining who has the last word on the law is a major, unresolved political issue.  In the U.S., some solutions aim at finding ways to promote changes in the Supreme Court’s composition, while respecting life tenure of judges and trying to reduce its direct political involvement.

A panel at the American Academy of Arts and Sciences has proposed that justices serve on the Supreme Court for 18 years and then, without losing their standing, serve only on federal courts of appeals.  Justice David Souter of New Hampshire has done almost exactly that.

I have proposed the appointment of temporary additional justices as have been used on other federal courts.  They temporarily increase the size of the court and then fill vacancies as hey occur, restoring the original number.  Meanwhile, they can help with the workload and the court’s balance.

Either of these changes can increase the chances that the Supreme Court can be more frequently renewed. 

Trump and friends like unchecked power

Gordon L. Weil

“Power tends to corrupt and absolute power corrupts absolutely.  Great men are almost always bad men.”

These are the classic words of Lord John Acton, a Nineteenth Century British historian.

We seem to have no shortage of eligible “great men” these days.

Having gained a taste of presidential power, Donald Trump proclaims his interest in more and greater power.  He could free his criminally convicted allies, use the government to punish his foes and replace the nonpartisan civil service with his loyalists.  Single-handedly, he would remove the U.S. from international leadership roles.

Civics students could ask how he could accomplish that with the checks and balances of the Constitution.  A complacent Congress and a compliant Supreme Court could help him.  By using dubious state tactics to suppress the Democratic vote for Congress and in the electoral vote count for president, he might gain for himself wide freedom of action.

For his core backers, the fact this “great man” is a “bad” man makes no difference.  Ultimately, his chances for another term could depend on whether traditional Republicans drop him if he is convicted of a major violation of law.  Otherwise, with unlimited power, his unlimited ego could prove Lord Acton correct.

Equally subject to Acton’s principle is Israeli Prime Minister Benjamin Netanyahu, a Trump ally. He has just admitted to one of the most historic lies. As soon as Israel was created in 1948, the international community adopted the concept that Israel, the homeland of dispersed Jews, and Palestine, an Arab state, should exist side-by-side.  Israel agreed. Now, he flatly rejects it.

It has become clear that Israel, under Netanyahu’s long leadership, has had no real commitment to the two-state model with a separate Arab state, even one that is disarmed.  He has simply hoodwinked the U.S., Israel’s willing ally and financial backer, and others.

Israel is now strongly influenced by conservative, ultra-religious parties.  They favor a purely Jewish state with Arabs denied independence and subjected to Israeli authority allowing it to control Arab land. The destruction of Gaza conforms to this policy.

Gaza is being demolished to punish the population for the heinous acts of Hamas on October 7. Netanyahu resists American and European calls for humane treatment of the population.

This policy reveals the extent of his own power.  Though he relies on his religious party backers, his policy denies what they profess to promote.  The bible says that God asks only that the people of Israel “do justice, love mercy and walk humbly with their God.”  Mercy is now missing.

Maine Sen. George Mitchell, who tried to negotiate Middle East peace, once warned that their failure to agree could lead to both sides losing.  The Palestinians would lose territory and Israel would lose friends. 

Netanyahu is making that forecast come true.  The last words of the biblical passage stating God’s expectations reveals that, for Israel’s failures, “you will bear the scorn of the nations.”   

In Russia, President Vladimir Putin, Trump’s trusted friend, shows the excesses of absolute power.  Russia was offered a close relationship with its former opponents, but he chose to continue to assert that his country remained a superpower under his leadership.  Ultimately, he believed his own myth and invaded Ukraine, a nation he deemed inferior.

He believed Russia would win in a few days.  When it failed, it showed the world that Putin’s superpower was gone.  He had sacrificed the historic standing of Russia to serve his own sense of power.

Yet Putin continues to hold onto his absolute power.  He can kill his opponents even if they are abroad.  After he failed to kill Alexei Navalny, his most effective political opponent, he imprisoned him almost indefinitely.  Even foreigners, like Evan Gershkovich, an American journalist, can be jailed endlessly without charges.

Acton’s observation seems to become more credible the longer a “great man” holds onto office. Netanyahu is in his third term as Israel’s Prime Minister.  Putin will soon gain his third term as Russia’s President plus one term as Prime Minister.  If he wins in November, Trump has hinted that he should get an unconstitutional third term because of the controversy surrounding the 2020 election.

There can be no doubt that Acton was right.   Power may come from elections, but absolute power results from leaders abusing their office to promote their complete authority, allowing them to alter the system to reflect their interest, not the national interest.

More important than any issue in an election is the threat that it can lead to the exercise of unchecked power.  Such an election can have more long-lasting effects than any policy.  And it rarely can produce a popular and successful result.

Power grows in a vacuum, one created by passive people. Lord Acton is only correct if we let it happen. 

Correction: House Speaker Mike Johnson is from Louisiana, not Texas, as I incorrectly wrote last week. 

Latest political violence – ‘swatting’

Political violence is last refuge of losers

 

Gordon L. Weil

Maine Secretary of State Shenna Bellows, who had ruled Donald Trump off the ballot, was threatened and swatted.

The Maine State House, along with other state capitals, received a bomb scare.

The judge handling Trump’s New York fraud trial faced a bomb scare and was swatted.

A member of Congress and his children were threatened with being killed.

The former Arizona Speaker of the House, who had testified on Trump’s attempt to change the electoral vote, was threatened and swatted.

Swatting is calling the police to report a crime supposedly taking place at the target’s home.  It creates chaos and perhaps even danger for the target.  In two cases, it has led to the death of an innocent party.

Swatting is part of an effort to scare or physically harm a political opponent.  Many threats are dealt with locally, but federal enforcement agencies have registered a 47 percent increase in their political threat investigations in the two most recent comparable five-year periods.

Most cases share the facts that the actions are illegal and the targets have acted unfavorably to Trump.  That translates easily to a message that you will be in danger if you harm his interests.

Judges, officials and legislators take threats seriously. While they are not deterred by being endangered, they are forced to balance the safety of themselves and their families with their duty to the public.  The purpose of the judicial system is to eliminate the need for this balance, allowing officials to make decisions as objectively as possible in the public interest.

Problems arise when people who may face charges or experience negative political outcomes try to stir up opposition using physical threats, not open debate.  Debate can lead to compromise, but some may prefer to use intimidation in hopes of traveling a straight line to their desired result.

Whatever your opinion about whether Trump aided an insurrection on January 6, 2021, there can be no doubt that the people who broke into the Capital wanted to menace Congress so that it would at least halt counting electoral votes for president.   There also can be little doubt that the invaders were doing what Trump wanted them to do to change the official outcome.

There’s an old political saying that “[False] patriotism is the last refuge of scoundrels.”  It seems increasingly to be the case that physical attacks in politics have become the last refuge of losers.  If they don’t have the votes, they don’t give up on doing virtually anything to gain power.  They often accept false information about their opponents to the point they see themselves in danger.

For some, politics has become less about governing, a process that limits the ability of participants to completely achieve their goals, than about gaining attention for them and their cause.  They may get noticed, but they probably don’t get results.  It’s possible they simply seek to destroy the current system, so it can be replaced by more authoritarian rule.

A group of extreme conservative Republican House members were able to dump then Speaker Kevin McCarthy after he had compromised with Democrats, who control the Senate and presidency, to avoid shutting down the government by passing a temporary budget deal.  They replaced him with Mike Johnson, a Texas member they considered more reliable.

When faced with the same issues as McCarthy, Johnson did the same thing, avoiding his party being held responsible for a government shutdown.  The right wing promptly went after Johnson, forcing him to struggle for a solution.

In a recent interview, McCarthy commented on the power of that small right-wing House group to disrupt congressional action.  He said the extremists focus on their own reputation and raising money to enhance their power.  “[W]hen you come here, if you don’t want to govern, why be a part of it?” he asked.

McCarthy missed the point.  He assumed that any member would want to be effective within the limits of the system.  But the extremists seem ready to topple the system, because it requires compromises that yield results not fully meeting their goals. 

They share Trump’s belief that, notwithstanding the real situation, the country is in deep trouble.  The current political system is dominated by a permanent class of bureaucrats – they call it the “Deep State” – and they must be dislodged by an executive with greater powers.

Their goals intersect with those using physical threats, who want to create a sense of chaos that only a stronger executive can cure.  Trump’s statements indicate that he wants to expand presidential authority to bypass Congress and government professionals.

It is unusual, especially at the federal level, for the great debate over the country’s future to be carried out through attempted legislative blockades while its traditional leaders are subject to physical threats.  But that’s where the country is.

Iowa GOP Caucus Overrated, turnout is unrepresentative

Gordon L. Weil With 99 percent of the Iowa Republican caucus vote having been counted, the initial results show 109,404 voters participated. Donald Trump’s strong victory has boosted speculation both about the likelihood of his winning the GOP nomination and then the general election. To many observers, the Iowa results confirm his lead on the road to the White House. He surely got his vote out. While the results may show that his legal issues are not undermining his strength among loyal Republicans, reasons remain for taking care about drawing too many early conclusions. Leaving the punditry aside, there is one clear fact that raises doubts about reading much into the result. In the 2022 Iowa race for governor, the GOP winner received 709,198 votes. That number includes any Democratic or independent voters she may have picked up. The caucus participants for all candidates was only 15 percent of that statewide GOP vote in 2022. Overall, there were 1,211,146 Iowa voters in 2022. That means that the GOP presidential caucuses drew only nine percent of the number of active election participants. Trump won less than five percent of the number of general election voters. The importance of the first-in-the-nation step in the presidential selection process is mainly a media creation. It is useful in sending message to hopeless candidates and to potential donors. But as an indicator of who will be on the ballot in November and how they might perform, it is greatly overrated.

‘America First’ could mean America Alone

Gordon L. Weil

The nations that won the Second World War had a big idea.

Having joined together as allies to defeat Nazi Germany, they would try to create international organizations to keep the peace.   New aggression would be blocked by these new institutions.

Even before World War II ended, the victors created the United Nations, an organization designed to put their high intentions into operation.  While the wartime alliance between the Soviet Union on one side and the United States and Britain on the other had been strained, the Americans hoped that wartime momentum could propel the U.N. forward.

Almost from the outset, cooperation in the U.N. didn’t work.  The Soviet Union seized domination of Eastern Europe and, using stolen nuclear technology, asserted itself as a superpower.  It confronted the U.S. and threatened to continue its expansion westward.

China, another of the key victors of World War II, ended its close relationship with the U.S. when the Communists took control there.  Almost immediately, it backed North Korea’s invasion of the southern part of the Korean peninsula.  American forces, fighting under the U.N. banner, directly engaged Chinese troops.

The hoped-for ability of the major powers to police the world was dead.  The U.N. would not ensure peace.

Responding to the Soviet gains, the U.S. and Europe created NATO, an organization designed to forestall further advances westward by the U.S.S.R.  The Cold War emerged as alliances were formed similar to those that had existed during the two World Wars.

The Soviet Union’s Warsaw Pact faced NATO, which drew the armed forces of its member countries into tight operating units, led by the U.S.  It succeeded in discouraging further Soviet expansion.

One constructive idea for cooperation was to entwine the economies of France and Germany so that they could not independently gear up to again launch a European conflict that would turn into World War III.  This idea led to the European Community, now known as the European Union.  A unified Europe could be an effective ally to the U.S.

The economic advantages of the original EU members became so evident that other countries sought to join.  But some were far more interested in the benefits that would flow to them than in creating a more unified political and economic entity.  In practice, the EU became a two-tier organization.

At its core are the founders, a relative handful of countries.  But states like Poland, Hungary and the U.K. proved reluctant to open themselves to common standards of conduct or open movement of their citizens.  The split became obvious when Britain decided to quit the EU.

Still, the European idea has continued to have appeal.  After the breakup of the Soviet Union, many countries it had controlled applied for EU membership.  Russia, the survivor of the U.S.S.R., felt challenged. 

As the EU grew, NATO became complacent, not believing that Russia would resort to military action.  Even after Russia seized parts of Ukraine in 2014, NATO chose to appease its adversary, just as had Britain and France in a showdown with Hitler. 

Then, under then President Trump, the U.S. began to back away from NATO. By 2022, Russia felt free to try to seize all of Ukraine.  NATO, under American leadership, at last awoke.

The Asia-Pacific area countries, including the U.S., had not understood that China would follow the Russian example and seek to increase its regional power.  As it became evident that it would try to dominate the region, the Trans-Pacific Partnership was formed to confront it. 

But the U.S. saw the TPP merely as a trade agreement, failing to understand it as an alliance to block China’s expansion.  Under Trump, it backed out.  Only when China’s moves in Hong Kong and the South China Sea became blatant did the U.S. take leadership of a Pacific effort against its moves.

Though the U.N. would not be a world organization to promote peace, regional alliances arose to face aggression by Russia and China.  Still, the U.S. and Britain insisted that national sovereignty is more important than this effort and moved away from these alliances.

Some define sovereignty as retaining completely independent action and ceding no powers under an international arrangement.  For example, it has become almost impossible to get the U.S. Senate to ratify any treaty, because a deal with another country may be seen as a loss of sovereignty.

But a nation can exercise its sovereign powers to increase its prosperity and security by deciding to join with like-minded partners.  Given American power, such alliances can continue to increase U.S. influence, not limit it.

In the upcoming presidential elections, the U.S. will again be asked to decide if it wants to continue leading common international efforts against aggression or to isolate itself from them.  Insisting on “America First” could result in America Alone. 

Democrats need to toughen up

 

Gordon L. Weil

President Biden is unhappy. 

He has berated his staff for not getting him the credit he believes is his due for what he calls “Bidenomics.”

While it’s true that unemployment and inflation are down nationally and business seems to be doing well, many people are unhappy with the economy and give Biden little credit for the positive developments.  Their pay may be up, but so are their costs.

Biden looks at the national economy, but individuals look at their own personal economy.  The two different views yield two different results.

The reason is possibly that increases in national wealth may not be distributed in a way that gives many people the sense of an improving economy.  If a large share of the growth is going to the wealthiest ten percent, the rest of the people may miss most of the virtues of Bidenomics.

Whatever the gains under Biden, the country still operates under a tax system created by Donald Trump and a Republican Congress.  That system is designed to reward the wealthy and large corporations.  Billionaire Warren Buffett, who favors higher taxes on the rich, can still point out that he pays a lower tax rate than his secretary.

Despite the tax deal favoring the rich, the GOP does well with average voters by effectively targeting its message at them.  Using wedge issues like abortion and gun control to gain support, it may even succeed in inducing them to believe that taxes are too high, which benefits the wealthy far more than them. 

Many of these people have become the Trump Republican “core.”  They are fed a steady diet of Trump’s version of political and economic reality by the skilled use of social media and cable television.

Surprisingly, the GOP learned about personally targeted politics from a hard-hitting Democrat, then a member of Congress from Illinois.  Rahm Emanuel used this approach to flip the House of Representatives from Republican to Democratic in 2006. The GOP watched and learned and by 2010, they flipped it right back.   GOP social media and Fox News were flying high.

The success of social media is its focus on responding to the sentiments of its followers rather than recruiting new supporters.  It’s likely that few liberal Democrats follow right-wing social media outlets or watch Fox and other conservative channels.  But loyal Trump backers are continually fed stories that confirm their views, and they remain enthusiastic and become a cult.

Trump’s own social media site, called “Truth Social,” is estimated to have more than two million followers.  They could be many of the same people who follow conservative cable programs, and they belong to him.

The result is that they can come to believe, inaccurately, that Biden is a socialist and dangerous to the country.  They can be left untouched about claims of a booming Gross Domestic Product, if that’s even understood. With Trump at the head of the ticket, they are drawn to the ballot box.  If they show up, they may give him wins in primaries and swing states.

Social media may succeed in gaining the attention of conservative voters who are not loyal Trump backers.  They make their case in readily understandable terms that appeal to the conservative leanings of their recipients.

The Democrats have no answer, as Biden is learning.  Bidenomics in 2024, like Obamacare in 2010, is an abstract idea that fires up few voters.  Fact-checkers may prove that the GOP errs, but that, too, is an abstraction to many voters.  Like the GOP, the Democrats want to appeal to their backers.  But they act like they’re in a student debate, not a political war.

One key feature of Trump-inspired social media is always being on the attack.  It labels its opponents as dangerous.  Its policy proposals are almost all negatives, like quitting NATO or reducing environmental protection.  That’s a sharp contrast with the almost academic arguments of the Democrats.

The professional media tends to give each side equal weight and coverage.  While Biden’s actions are duly reported, mistruths may get the same often unquestioned attention.  Its coverage may lack critical news judgment.  Objectivity should remain the goal, but its mindless pursuit can promote misinformation.

The Democrats should become more aggressive in the social media.   They often sound more like professors than politicians.  Their message should be simple and bold.  They can direct their message to individual voters, and not only focus on broad national policies, however successful. And Biden should be more visible in the nightly news.

Aside from being too old to run and consequently out of touch with younger generations, Biden plays by dated political rules, no longer suited to the politics of the times.  The Democrats will continue to lag in the polls if they don’t toughen up.

Civil War was all about slavery

              

Gordon L. Weil

Former South Carolina Governor Nikki Haley tried to dodge admitting that the Civil War was about slavery.

Yet her state was the first state of the Confederacy to secede, acting months before Abraham Lincoln took office.

The state argued that the Union was based on agreement among states that slavery could continue and that non-slave states would send escapees back South when captured. But the North was reneging on that agreement and wanted to end slavery.

Lincoln had promised that he would not act to end slavery where it existed, whatever his own views. In fact, Congress proposed a constitutional amendment containing that promise, which was ratified only by his home state of Illinois. The southern states chose to secede.

Many in the South, having lost the Civil War, came to believe in the Lost Cause. They claimed to have wanted only to have preserved states’ rights and been simply overpowered by the Union. Slavery was pushed into the background. This was the position advanced by Haley, which might have helped her in some Republican primaries but not in a general election.

This is an excerpt from the South Carolina Declaration of December 1860, which in turn has a link to the complete document.