Sunday, January 15, 2017

Will Trump's Nominees Change Their Spots in Office?

      Sen. Lindsey Graham opened his questioning of Attorney General-designate Jeff Sessions last week [Jan. 10] by saying that the hearing posed the question whether someone could be confirmed as attorney general despite the opposition of more than 1,000 law professors nationwide. The broader question for the Senate Judiciary Committee and the full Senate, however, is whether a leopard such as Sessions can change his spots when moving from the jungle on Capitol Hill to a Cabinet post.
      Judiciary Committee chairman Chuck Grassley started the two-day hearing as the first of a succession of Sessions' Republican colleagues to voice confidence in the Alabama senator's ability to enforce the law impartially if confirmed as attorney general. But the committee's ranking Democrat, California's Dianne Feinstein, used her opening to state, without later contradiction, that Sessions "has advocated an extremely conservative agenda" in his 20 years as senator.
      Thirty years ago, Sessions’ nomination to a federal judgeship died at the hands of a Republican-majority Judiciary Committee based on allegations of racial insensitivity or worse as a federal prosecutor. So Sessions may not have been the most obvious choice to head the Justice Department given the department’s continuing indispensable role in enforcing federal civil rights laws.
      Sessions’ nomination fits the pattern, however, seen in the selections made by President-elect Trump for other Cabinet positions. Scott Pruitt, the Oklahoma attorney general tapped to head the Environmental Protection Agency, has made a hobby of sorts out of suing the EPA in league with the pollutant-producing oil and gas industry. Betsy DeVos, the Michigan politico nominated as secretary of education, did not attend nor send her children to public schools but has instead devoted time and money to supporting charter schools as alternatives to public schools. Andy Puzder, the fast food executive designated to be secrtary of labor, would be charged with enforcing laws that his company has been accused of repeatedly violating; his hearing is on hold till next month.
      For the all-important position of secretary of state, Trump turned, counterintuitively, to Rex Tillerson, the longtime chief executive of ExxonMobil. Tillerson’s previous diplomatic experience consists of cozying up to petrocratic regimes such as Iran and Vladimir Putin’s Russia for oil-drilling rights.The State Department has a major role in documenting and combating human rights abuses around the world, but Tillerson had no views when asked at his confirmation hearing about human rights conditions in Saudi Arabia, a country surely familiar to him as the world’s leading oil producer.
      Pruitt and DeVos are set to face confirmation hearings later this week: DeVos on Tuesday [Jan. 17], Pruitt on Wednesday [Jan. 18]. Democratic senators may have tough questions for each, but with a 52-48 Republican majority in the Senate Trump’s nominees have a certain path to confirmation barring any GOP defections. Tillerson’s confirmation was clouded somewhat by critical questioning during his Foreign Relations Committee hearing from Florida’s Republican senator Marco Rubio and doubts from two other GOP senators, Arizona’s John McCain and South Carolina’s Lindsey Graham.
      Rubio grilled Tillerson during the Jan. 11 hearing about his longstanding business ties with Russia, which had netted him an “Order of Friendship” award from Putin in 2013. Tillerson declined under repeated questions to characterize Putin as a “war criminal” or to describe Russia as “an adversary.” Tillerson had already raised eyebrows by telling New Jersey Democrat Robert Menendez that he had not discussed relations with Russia in his pre-nomination interview with Trump.
      One day earlier, Sessions had been closely questioned by several of the Judiciary Committee Democrats but seemingly with no apparent damage done to his all but certain confirmation. Sessions is popular with his colleagues, and senatorial courtesy counts for a lot. Just as important, Sessions repeatedly assured his Republican colleagues and the Democratic skeptics that he would impartially enforce laws even if he disagreed with them — as, for example, on the Supreme Court’s decisions on abortion rights and marriage equality for same-sex couples.
      Considered more closely, however, Sessions’ record and his answers clearly signal a sharp change in policy at Main Justice after his confirmation. Sessions indicated his support for voter ID laws, which the Obama administration has joined in challenging in federal court. He signaled his intention to support local police departments instead of investigating them for patterns and practices of violating citizens’ civil rights, as the Obama administration has done aggressively in jurisdictions from Ferguson, Mo., to, most recently, Chicago.
      On voting rights, Sessions sounded the right notes by acknowledging that the Voting Rights Act “changed the whole course of history,” but he did not retreat from his endorsement of the Supreme Court’s decision in 2013 effectively eliminating the act’s most powerful enforcement mechanism. He claimed to have no recollection of his quoted comment doubting the existence of discrimination against women or LGBT individuals.
      David Cole, national legal director of the American Civil Liberties Union, aptly commented that it is hard to fight against discrimination if one does not believe that it exists. From the opposite perspective, Sessions’ GOP supporters found little to point to in his civil rights record beyond a few Senate resolutions – for example, commending Rosa Parks, the heroine of the Montgomery bus boycott.
      Elections have consequences, of course, and Trump won the White House on the promise to shake things up. Still, as the runner-up in the popular vote, Trump along with his Cabinet appointees would be well advised to remember that they preside over a government of laws, laws to be observed and enforced even if the “government of the day” (to use the British phrasing)  may have disagreements.








Sunday, January 8, 2017

In Trump Era, LGBT Groups Playing Defense

      LGBT rights advocacy groups are bracing for challenging times in Washington as President-elect Trump assembles his cabinet and prepares to take office this week [Jan. 20]. "It's not going to be an administration that's going to be good for LGBT rights," says Elliot Imse, director of communications for the Gay and Lesbian Victory Institute. But Imse and other LGBT leaders say they are not going to take the next four years lying down.
      The Victory Fund, a political action committee devoted to electing openly LGBT candidates to public office at all levels of government, hosted a gathering of more than 500 LGBT officials in Washington one month after the election to plan strategy for coming battles in Washington and in state capitals around the country. Participants were "revved up," Imse says. They were "extremely excited to be talking strategy instead of mourning election day," he adds.
      Trump will take office after eight years that have been relatively good for LGBT advocates under President Barack Obama. As president, Obama backed LGBT rights in a number of areas — for example, in a significant executive order late in his second term that bans anti-LGBT discrimination by federal contractors. He also helped secured major victories from the other two branches of the federal government.
      Obama lobbied Congress for and signed into law the 2010 legislation that set in motion the Pentagon's eventual elimination of the "don't ask, don't tell" policy against openly LGBT military service members. Obama also greenlighted the government's decisions to argue successfully at the Supreme Court in 2013 against the Defense of Marriage Act (DOMA) and in favor of the landmark decision in 2015 guaranteeing marriage rights for same-sex couples nationwide.
      Trump sent shivers of fear through the LGBT community back in August with his selection of Indiana's governor Mike Pence as his running mate. As governor, Pence in 2015 signed a religious freedom bill that allowed individuals and companies to refuse services to LGBT individuals by citing religious objections. LGBT organizations highlighted a photograph of the bill-signing showing Pence to be flanked by leaders of anti-LGBT organizations. Among other Pence policies, they noted that he supported the federal anti-gay marriage amendment and that back in his first run for Congress in 2001 he called for using federal anti-HIV/AIDS funds to support groups that promote so-called gay conversion therapy.
      Since the election, Trump has further disheartened LGBT groups with his selections for cabinet positions. As one example, Betsy DeVos, selected to be secretary of education, has reportedly donated with her husband  hundreds of thousands of dollars to Focus on the Family, a conservative Christian group that among other positions favors gay conversion therapy. Attorney general-designate Jeff Sessions also has a record of opposing pro-LGBT measures during his two decades as a U.S. senator from Alabama. He supported the federal marriage amendment, opposed repealing "don't ask, don't tell," and voted against taking up a federal measure to ban anti-LGBT discrimination in the workplace.
      During the Obama years, Congress was hospitable to LGBT issues only when Democrats held a majority in both chambers in his first two years in the White House. The 2016 elections left Republicans in control of both the House and the Senate, though with slightly reduced majorities. Imse acknowledges the unfavorable climate for LGBT issues at both ends of Pennsylvania Avenue. "We have a Congress and an administration that are most likely going to oppose LGBT issues and most likely try to turn the clock back on LGBT rights," he says.
      Imse stresses that the number of openly LGBT elected officials is at an all-time high. On Capitol Hill, there are six openly LGBT members of Congress: Wisconsin's Democratic senator Tammy Baldwin and six member of the House, all Democrats. Imse and Baldwin both cite the defeat of North Carolina's Republican governor, Pat McCrory, as a cautionary tale for politicians who take high-profile stands against LGBT rights.
      McCrory's narrow defeat by Democrat Rory Cooper was widely attributed to his signing a bill, known as HB 2, that nullified local LGBT rights measures and required transgender individuals to use public restrooms corresponding to their birth sex instead of their gender identity. "I think if Donald Trump wants to take the same path as Governor McCrory, he's going to face resistance from businesses and families across the country," Baldwin says. Imse agrees. "Public opinion is now on the side of LGBT equality," he says, "and that includes Democrats and Republicans."
      Anti-LGBT forces appear to have the initiative at present. Since the election, legislators in Texas and Virginia have introduced so-called bathroom bills comparable to the North Carolina measure. Meanwhile, the issue is pending in the courts. A federal judge in Texas has blocked the Obama administration policy guidance that schools allow transgender students to use the restroom corresponding to their gender identity. And the Supreme Court is set to hear arguments this spring in an argument by a local school board in Virginia seeking to overturn a lower court decision favoring a transgender student's right to use a bathroom corresponding to his gender identity.
      Imse promises that LGBT officials will be "extremely vocal and united when anti-equality agendas are proposed or put forward." Baldwin also acknowledges that LGBT advocates will be on defense for the foreseeable future. “Defensive battles will have to be fought wherever efforts to roll back hard-won rights are launched," she says.






Sunday, January 1, 2017

Roberts' 'Missed Opportunity' on Judicial Vacancies

      When President Franklin D. Roosevelt proposed his notorious court-packing scheme in 1937, Chief Justice Charles Evans Hughes delivered the fatal blow to the plan. In a letter to leading senators, Hughes refuted Roosevelt's claim that the court was falling behind because the six septuagenarian justices were not keeping up with the work. The court was up to speed, Hughes said, and additional justices actually would slow the work down.
      Eight decades later, Senate Republicans played politics with the court in a different way last year by refusing to consider President Obama's nomination of the veteran federal judge Merrick Garland left by the death of Justice Antonin Scalia. Some on the political and legal left speculated that Roberts might speak out against the obstruction. But Roberts stayed completely silent even as the unfilled vacancy left four significant cases partly unresolved because of 4-4 splits among the remaining eight justices.
      Senate Republicans extended their obstructionist policies to the lower federal courts by all but shutting down the confirmation process for Obama's nominees to district court and circuit courts of appeals. As the year ended, federal courts had an historically high number of 107 vacancies, including 84 district court judgeships and 14 on circuit courts. Obama had submitted nominees for 84 of the positions, and the Senate Judiciary Committee had approved 25 for floor votes. But all were left hanging as the 114th Congress was set to expire on Tuesday [Jan. 3].
     Roberts followed the now established practice on New Year's Eve of issuing an annual report on the "State of the Judiciary." He devoted the 10-page report to effusive praise for federal district court judges, who he said "make a difference every day" by staffing the first rung in the federal judicial system. Oddly absent, however, was the anodyne reassurance included in several of his previous reports that the state of the federal judiciary was "strong."
      To the contrary, the federal judiciary has become collateral damage in the uncommonly bitter partisan, regional, and class warfare that consumed the country throughout the presidential campaign. The death of the conservative icon Scalia naturally touched off a high-stakes political fight, but the Senate Republicans' refusal to grant Garland a hearing was literally unprecedented since the beginning of confirmation hearings early in the 20th century.
      The year-long slowdown on Obama nominees for the lower federal court leaves almost exactly twice the number of vacancies that Obama inherited at the end of George W. Bush's presidency. Sheldon Goldman, a professor at the University of Massachusetts-Amherst and the leading academic expert on federal judicial appointments, calls the Senate's record over the past two years "the worst in American history in terms of obstruction and delay."
      Combined with the Supreme Court vacancy, the lower court vacancies give the new president an early chance to start reshaping the federal judiciary. Obama leaves a legacy of the most diverse federal judiciary in history: he named a record number of women, African Americans, Hispanics, and Latinos to the federal bench.  Out of 14 openly LGBT individuals he nominated for federal judgeships, the Senate confirmed 11 — bringing the total number now to 12.
       Trump seems unlikely to have any similar interest in diversity. To judge from his list of Supreme Court possibilities, he seems interested in satisfying the legal conservative groups that served as feeders and vetters for the Bush administration. Even with Democrats outnumbered 52-48 in the Senate, trench warfare seems inevitable, with some adverse effect on public confidence in the impartiality of the federal bench.
      Roberts might have said at least a word or two about the fighting over the vacancies, but never did — not during the year and not even the first word in his annual report. Admittedly, Supreme Court justices typically sit on the sidelines as the president and the Senate work to fill the federal bench, even seats on the Supreme Court itself. As Hughes realized, however, unusual times demand unusual actions.
      Neither the court nor the federal judiciary was well served by Roberts' institutional self-restraint, if that is what it was. As a Republican appointee, Roberts could also be suspected of partisan complicity in the Republican tactics. Garland's confirmation, after all, would have left Roberts with a five-justice liberal-leaning majority.
      Roberts' silence was "a missed opportunity for leadership," says Gabe Roth, the executive director of the reformist FixtheCourt.com. "Given all the partisan rancor, there was a need for an adult in the room." Apart from the Supreme Court vacancy, Roth sees blame for both parties in the judicial battles. "Republicans try to find the most conservative judges," he says. "Democrats try to find the most liberal."
      Roth likes the practice adopted during the Carter administration of using specially created judicial selection commissions to screen federal judge nominees at the state or circuit level. Roberts might have used his position as a "bully pulpit to tryi to fix the broken process,"  he says. With Trump set to take office, "things are going to get weird," Roth warns. "There's no better time to try to come up with a better system."
      In his annual message, Roberts had warm and appreciative words for the nation's 600-plus federal district court judges, but just that. Federal judges and those who look to the federal courts for effective and impartial justice might understandably have hoped for and even expected more.

Sunday, December 18, 2016

Supreme Court Should Invalidate Electoral College

      "The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago," I argue in an op-ed published in theLos Angeles Times [Dec. 16]. "Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president."
      My original submission was longer and more explicit in setting out the legal grounds and political rationale. Here, for your further consideration. I will have more to say in coming days on fixing the flaws in the United States' imperfect Constitution.
* * *

      The Electoral College is unconstitutional.
      It is unconstitutional because it was born out of a morally offensive political decision aimed at preserving the status of slavery in the South.
      It is unconstitutional because it has never functioned in the supposedly deliberative manner that its authors depicted in selling it to voters during the ratification debates.
      It is unconstitutional because it conflicts with the “one person, one vote” rule that the Supreme Court has applied for the past 50 years to elections for every other elective office in local, state or federal governments.
      It is unconstitutional because under current political conditions it does not operate as its defenders claim to incentivize presidential candidates to campaign in all 50 states, from the biggest to the smallest.
      And it falls to the Supreme Court to rule the system unconstitutional because its defects are safeguarded from a constitutional amendment by the effective veto power of the small states that supposedly benefit from the system.
      Start at the Constitutional Convention in Philadelphia in 1787, where Pennsylvania’s James Wilson proposed direct election of the president only to be shot down by the slave-owning Virginian James Madison. As Yale’s distinguished constitutional law scholar Akhil Amar has recently explained, Madison demurred because Northern states allowed voting more “diffusively” than states in the South.
     The South’s non-voting slaves would have counted for nothing in a popular-vote system. But slaves increased the electoral votes from the South and thus its political clout because the Three-Fifths Clause counted them for apportionment in the House of Representatives.
     The ink was barely dry on the Constitution when the Twelfth Amendment was ratified in 1804 to replace the harebrained provision that the presidential runner-up serve as vice president. Ever since, the major political parties have fielded competing presidential and vice-presidential tickets, and the electors have been relegated to voting according to the popular vote in their respective states.
     The Constitution never uses the phrase “Electoral College,” nor have the electors ever met as a collective body. The Constitution specifies that they cast their ballots in their respective states. But Alexander Hamilton sold the system to voters in Federalist No. 68 on the ground that the president would be chosen by “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation . . . .”
      Today, electors’ names do not even appear on most states’ ballots. The occasional elector who votes differently from the popular vote is not praised not for deliberation but criticized as “faithless.” For better or worse, none of the 157 faithless electors in U.S. history before the 2016 contest, as compiled in a Wikipedia entry, have affected the outcome of a presidential election. The Supreme Court ruled in 1952 that states can punish a faithless elector after the fact but cannot prevent electors from casting their votes as they see fit.
      The Supreme Court ruled in 1964 that states cannot use an unevenly weighted voting system in choosing statewide officeholders. The 8-1 ruling in Wesberry v. Sanders struck down Georgia’s county unit system, which gave rural voters significantly greater weight than voters in urban counties.
      Justice William O. Douglas acknowledged, with a critical footnote, the constitutional basis for the Electoral College, but he concluded that states had to give all voters equal weight. “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote,” he wrote.
      If states are foreclosed from giving rural voters more weight than urban voters in choosing governors or senators, the federal government should be equally foreclosed from giving voters in red-state Wyoming or blue-state Rhode Island more weight in choosing a president than those in blue-state California or red-state Texas. The court held in the District of Columbia school desegregation case in 1954 that the Fifth Amendment, ratified three years after Article II with its provisions for electing the president,  includes an equal protection component applicable to the federal government.
      Supporters of the Electoral College fall back on a political defense. In a pure popular-vote system, they warn that candidates would pay no attention to the least populous states. Nowadays, however, with most states well defined as either Democratic blue or Republican red, candidates devote most of their time and resources to only a dozen or so “battleground states.” Today, every Republican voter in California or Rhode Island counts for nothing, just like every Democratic voter in Texas or Wyoming.
      Supporters also argue, in effect, that the system works, almost all the time. The popular-vote winner has been denied the presidency only five times in the 54 elections since ratification of the Twelfth Amendment, including most recently Al Gore in 2000 and Hillary Clinton in 2016. A 9 percent failure rate is shy of an A-plus grade. And of the popular-vote-loser presidents in the 19th century, none is viewed as having been particularly successful in office: John Quincy Adams in 1824, Rutherford Hayes in 1876, and Benjamin Harrison in 1888.
      It would be quite a stretch for the Supreme Court to rule the Electoral College unconstitutional. But it was a stretch for the court to rule legislative and congressional malapportionment unconstitutional in the 1960s. The country is better off for the court’s decision to wade into what Justice Felix Frankfurter had previously called “the political thicket.”
      Malapportioned legislatures could not be expected to remedy the defect, so the Supreme Court stepped in when petitioned by disadvantaged voters from, among others, my home state of Tennessee. As a remedy, the court did not void elections. It only required legislatures to redraw districts and to hold subsequent elections according to the redrawn districts.
     If petitioned by undercounted voters in populous states, the court similarly need not nullify the results of a presidential election to get rid of the Electoral College. It need only require that a popular-vote system be established by the time of the next. Voters of underweighted states could file suit now and satisfy standing under the doctrine that their claimed injury is “capable of repetition but evading review.”
      The 15 states with five or fewer electoral votes — roughly half of them red and half blue — would be enough to prevent the three-fourths majority needed to adopt a constitutional amendment for a popular-vote system. A dozen or so states have signed on to the National Popular Vote Compact as a way to circumvent the Electoral College by pledging to cast their electoral votes for the popular-vote winner if joined by states with an electoral majority. Under the Supreme Court’s 1952 decision, however, the compact would be unenforceable.
      The U.S. Constitution has been a model for emerging democracies, but in more than 200 years no country has followed the Framers’ model for choosing its chief executive. The Constitution envisioned a system of self-government and, over time, its letter and spirit have been interpreted as embodying political equality as part of that system.
      The court has recognized in other contexts that the meaning of the Constitution can change with changing times. The Framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence v. Texas (2003). “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”



Sunday, December 11, 2016

Court: No Insider Trading for Friends, Family

      Supreme Court justices routinely caution against drawing any conclusions about the court's views when it declines to review a lower court decision at the behest of the losing side in the case. Even so, the advocates and experts worried about insider trading felt a frisson of disappointment a year ago when the court declined to hear the government's appeal of a decision by the federal appeals court in New York making it harder to prosecute those cases.
      The disappointment hardened into anxiety a few months later when the court agreed to hear an appeal in a California case by a defendant who had cited the New York decision in an unsuccessful effort to overturn his conviction. Court watchers saw the decision to hear the case, Salman v. United States, as an indication that justices across the ideological spectrum might want to narrow the expansive reading of the broadly worded insider trading laws.
      For insider trading hawks, however, the story has a happy ending. In a unanimous decision last week [Dec. 6], the court held that it is a crime to trade on nonpublic information passed on by an insider relative or friend even if the so-called "tipper" gets no money, nothing but good will, for the leak. The ruling upheld the conviction of Bassam Salman, who made more than $1.5 million in profits by trading on the basis of tips about pending health care mergers and acquisitions passed on by his brother-in-law, an investment banker at Citigroup in San Francisco.
      In its decision in the New York case, the Second U.S. Circuit Court of Appeals had ruled that insider trading was not illegal unless the tipper received "a potential gain . . . of a pecuniary or similarly valuable nature." The hedge fund manager defendants in United States v. Newman had picked up tips from loose-lipped Wall Street bankers, who leaked valuable tips about future earnings reports from high-tech companies and were never prosecuted themselves.
      The prosecutors never established the bankers' motives for the leaks. Perhaps they felt a sense of self-importance as they showed they were in the know. Or maybe they even hoped for some kind of payback, in good will or maybe in U.S. currency. Under the Second Circuit's decision, however, they were not criminals and neither were the "tippees" who used the information to outsmart the general trading public.
      The New York case was brought by the office of U.S. Attorney Preet Bahrara, the prosecutorial scourge of Wall Street who reportedly has agreed to remain in office under the next administration. The Second Circuit said that Bahrara had prosecuted the hedge fund managers under "a doctrinal novelty," but in its decision last week the Supreme Court specifically said that Newman was "inconsistent" with the high court's underlying precedent.
      Admittedly, the court's foundational decision in Dirks v. Securities and Exchange Commission (1983) is less than crystal-clear. Insider trading liability attaches, the court held, only if the tipper receives "a personal benefit" from breaching a fiduciary duty to keep information confidential. The petitioner in that case, investment broker Raymond Dirks, won a reversal of his censure by the SEC for telling institutional investors about apparent fraud by a big insurance company.
      In the new decision, the Supreme Court reaffirms Dirks but without adding much by way of clarity. "Dirks makes clear that a tipper breaches a fiduciary duty by making a gift of confidential information to 'a trading relative,'" Justice Samuel A. Alito Jr. wrote in the 12-page opinion upholding the Ninth Circuit's decision to affirm Salman's convictions.
      The crime in this case started innocently enough. Maher Kara followed the health care industry for Citigroup and started sharing information about the industry with his older brother Mounir Kara when their father was battling cancer. One thing led to another: Mounir (known as Michael) started trading on the information and he then started feeding the information to Salman, a friend who eventually married Maher's sister.
      Maher Kara eventually figured out that his brother and Salman were trading on the information, but he did not stop the leaks. Eventually, both Kara brothers pleaded guilty to insider trading and testified at Salman's 2013 trial, where he was convicted on multiple counts and sentenced to three years' imprisonment and $730,000 in restitution.
      In New York, federal prosecutor Bharara expressed approval of the new decision. “The court stood up for common sense and affirmed what we have been arguing from the outset — that the law absolutely prohibits insiders from advantaging their friends and relatives at the expense of the trading public,” Bharara said in a statement emailed to news media. “Today’s decision is a victory for fair markets and those who believe that the system should not be rigged.”
      Interestingly, the court heard from an array of groups on Salman's side and only two backing the government about the harm to the public from insider trading. In its amicus brief, the libertarian Cato Institute argued that the "personal benefit" theory is "vague" and "unpredictable" and that it actually "chills beneficial economic activity" by leaving insiders uncertain about the legality of disclosing market-relevant information.
      Alito's spare opinion rehearses none of that debate. But the court deserves credit for reaffirming a sensible rule, albeit difficult to enforce, to limit insiders' ability to rig the market for the benefit of friends and family.

Saturday, December 3, 2016

Court Set to Overturn Texas Death Penalty Cases

      Texas leads the nation in executions by a country mile, but the state seems on a path to seeing two of its death penalty cases reversed by the Supreme Court following separate arguments in the first two months of the court's new term. The blatant errors in the two cases highlight again the dismal record by Texas state courts and the federal appeals court for Texas in protecting constitutional rights in cases that call for additional not less scrutiny on appellate review.
      Bobby Moore appears likely after arguments last week [Nov. 29] to get a new chance to be spared execution under the Supreme Court's decision in 2002 prohibiting the death penalty for defendants with severe intellectual disabilities. In upholding the sentence, the Texas Court of Criminal Appeals relied on an old and now disfavored definition of what used to be called "mental retardation."
      As Justice Anthony M. Kennedy aptly remarked during the argument in Moore v. Texas, the state's approach seems designed to limit intellectual disability claims in the face of "an almost uniform medical consensus" on a somewhat broader definition. Texas Solicitor General Scott Keller tried to disagree, but Kennedy and Justice Elena Kagan both rejected his defense. "Justice Kennedy is right about how they operate," Kagan said, "and how they were intended to operate."
      In earlier arguments [Oct. 5], Duane Buck appeared likely in Buck v. Stephens to win a new chance to be spared execution by proving that he was prejudiced by testimony from a supposed expert linking black defendants to high degrees of "dangerousness." It was Buck's own defense lawyer who put on the testimony, prompting the law-enforcement minded Justice Samuel A. Alito Jr. to describe the course of the penalty-phase hearing as "indefensible."
      Buck's lawyer, Jerry Guerinot, has had 20 of his capital case defendants sentenced to death — a record highlighted in a New York Times profile with the headline "A Lawyer Best Known for Losing Capital Cases." In a separate case, the Texas attorney general's office has confessed error in use of the expert's race-as-dangerousness study. Even so, the Fifth U.S. Circuit Court of Appeals, which has jurisdiction over Texas and two other southern death penalty states, refused Buck the "certificate of appealability" needed to challenge the death sentence in a federal habeas corpus proceeding.
      At the Supreme Court, Kagan noted statistics from the brief by Buck's new lawyer, Christina Swarms of the NAACP Legal Defense Fund, that the Fifth Circuit denies permission to appeal in capital cases about 60 percent. By contrast, the Eleventh Circuit, which has jurisdiction over Florida and two other death penalty states in the South, denies permission about 6 percent of the time. "It does suggest," Kagan said, that "one of these two circuits is doing something wrong."
      With lenient judicial review like that, it is perhaps not surprising that Texas has been the national leader in executions since capital punishment was reinstituted under the Supreme Court's decision in 1976. The Death Penalty Information Center counts 538 executions in Texas during the period, more than one-third of the total number of 1,440 throughout the United States.
      The pace of executions is slowing nationwide and in Texas too. The death penalty "is withering on the vine," Stephen Shapiro, outgoing national legal director of the American Civil Liberties Union, remarked at the Supreme Court last week. As the number falls, Texas's proportionate share has increased. The Lone Star State's 13 executions in 2015 were almost half the national total of 28. For 2016, Texas's seven executions so far are again more than one-third the national total of 18.
      The two cases at the Supreme Court differ in terms of inviting extra-legal sympathy for the defendants. Guilt is undisputed in either case. Buck's offense is grisly and premeditated, Moore's less so on both counts.
      Buck, who is African American, was convicted of murder in the 1995 killing of his former girlfriend and a new friend of hers while her children watched. However gruesome the circumstances, a capital case with a black defendant demands extra attention to substantive and procedural rights in the light of the death penalty's long history of racial discrimination in the United States.
      Moore was convicted, in 1980 at age 21, of murder in the killing of a store clerk during a botched robbery in Houston. Representing Moore at the Supreme Court, the prominent Washington attorney Clifford Sloan told the justices that Moore's intellectual limitations had been evident since the age of 13 when he was unable to understand "the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of addition."
      The Supreme Court left it up to the states to define intellectual disability in its decision in Atkins v. Virginia (2002) prohibiting the execution of what were then called "mentally retarded" defendants. But in 2014 the Court ruled in Hall v. Florida that states cannot use a bright-line IQ test threshold in determining intellectual disability in capital cases.
      The standards now adopted by professional associations look separately at deficits in intellectual capacity and in what is called "adaptive behavior" -- roughly, the ability to get along in day-to-day life. In Moore's case, however, Texas applied the state's old standards that allowed disregarding intellectual deficits in the absence of adaptive deficits. Keller insisted that Texas's approach was "well within the national consensus," but Kennedy and the liberal justices appeared from the arguments ready to tell Texas to get with the times.

Sunday, November 27, 2016

Opportunity for Justices on Partisan Gerrymandering

      Wisconsin Republicans gained control of the state legislature and the governor's office in 2010 for the first time in 40 years and then set about drawing up legislative districts to secure a Republican majority for the rest of the decade. As the legislature was about to act, an aide to the Senate's Republican leader told the GOP caucus they had "an opportunity and an obligation to draw these maps that Republicans haven’t had in decades."
      The legislative districts have now been found by a federal court to have been designed to benefit Republicans and to have had that intended effect. That much is obvious from election statistics. Republicans drew 48.6 percent of the votes cast for Assembly candidates in 2012 but won 60 of the chamber's 99 seats. Two years later, Republicans won 63 Assembly seats with 52 percent of the statewide vote.
      Democratic voters challenging the redistricting have now won a split ruling from a three-judge federal district court that the redistricting amounts to an unconstitutional political gerrymander. The new map was "intended to burden the representational rights of Democratic voters throughout  the decennial period by impeding their ability to translate their votes into legislative seats," Judge Kenneth Ripple wrote for the court.
      Both the plaintiffs and the court faced the difficulty that up till now the Supreme Court has failed to find a basis to decide when partisan gerrymandering goes too far. In three decisions over the span of 20 years, the court has recognized constitutional claims against political gerrymandering but upheld each of the challenged plans for lack of any agreed-on standard to apply.
      To remedy that gap, the plaintiffs secured the services of an experienced election law litigator now at the University of Chicago Law School. Nicholas Stephanopoulos, just granted tenure at Chicago after several years previously at the Washington law firm Jenner & Block, believes that he and an academic colleague have found the silver bullet needed to establish a legal limit on partisan manipulation in redistricting.
       The answer proposed in a law journal article by Stephanopoulos and his coauthor, the California political scientist Eric McGhee, is appealingly straightforward. They created a quantifiable datum — they call it the "efficiency gap" — to compare how efficiently the respective political parties use their voters to win legislative seats.
      In brief, think of the winning party's margin of victory in any district beyond a one-vote plurality as "wasted" votes -- more than needed to win the seat. Votes cast for a losing candidate are wasted by the other party. Add up all the wasted votes — either "surplus" votes or "lost" votes — for each party, calculate the difference, and divide by the total number of votes cast. A low figure, say 2 percent, indicates a district map of relative partisan fairness, but Stephanopoulos and McGhee argue that a figure above some threshold — they suggest 8 percent — goes too far and ought to be deemed unfair enough for a court to rule the redistricting plan presumptively invalid. Based on this measure, they say partisan gerrymandering is worse now than ever in the elections they studied.
      Stephanopoulos and McGhee argued that their test was better than what has been called the "partisan symmetry" test. Under that approach, a redistricting plan survives challenge as a partisan gerrymander politically if each party would win the same number of legislative seats for a particular vote percentage as the other party would win if it had received the same percentage of the vote.
      Five justices indicated support for this approach in the most recent decision, Latin American League of United Citizens v. Perry (2006), but in the main opinion Justice Anthony M. Kennedy said the plaintiffs had offered no way to measure how much asymmetry was too much. Stephanopoulos and McGhee say their approach has the advantage of using actual election data instead of a hypothetical election and they go one step further by suggesting a threshold to define how much is too much.
       The majority judges in the Wisconsin case were convinced that the 11.69 percent efficiency gap was too much. Lawyers for the state argued that the Republicans' advantage stemmed from political geography: Democrats are concentrated in urban areas — so more "surplus votes" — while Republicans are dispersed more widely in suburban and rural areas. In his opinion, Ripple, a senior circuit judge appointed by President Ronald Reagan in 1985, acknowledged the point but said it gave Republicans only "a modest advantage," not the lopsided edge they achieved with the maps being challenged.
      The two other judges split along partisan lines. Barbara Crabb, a senior judge named by President Jimmy Carter in 1979, joined Ripple's opinion, while William Griesbach, named by President George W. Bush in 2002, dissented. In his dissent, Griesbach argued that the efficiency gap "oversimplifies political injury," but he appeared to offer no alternate approach.
      Stephanopoulos got the unusual opportunity for a professor to put his academic theory into practice after a fellow election law scholar referred him to the Wisconsin plaintiffs to represent them. The state plans to appeal the ruling to the Supreme Court. Stephanopoulos welcomes the chance. The case, he says, would give the Supreme Court "a golden opportunity to put a stop to one of the most pernicious and undemocratic practices in American politics today." As always, court watchers will be watching Kennedy, but the case is unlikely to reach the justices before next fall.