The Current Systemic Problem with the Judicial System

 It is truly unfortunate that recent events have given weight to criticism that the judicial system is corrupted. The actual corruption relates more to the systemic foundations and operation than the individual dishonesty of certain venal judicial officials. 

Let me explain. The problem with Justices Thomas and Alito goes beyond their acceptance of gifts and bribes from parties with disputes before the SCOTUS that impugn their independence. The real problem is the systemic rot that PLACES them on the bench with the express and implied goal of slanting rulings and undermining confidence in the SCOTUS. 

In Georgia, the judge holding hearings on what should have been treated as a frivolous motion to disqualify prosecutors has ruled that there was no proof of ACTUAL conflict [which is the legal standard for disqualification], but that some vague "appearance of impropriety" justifies disqualification of Willis or Wade from prosecution. The reason for the ruling has nothing to do with substantive LEGAL justification for his ruling, but rather that the judge is facing re-election is a conservative region. Justice and professionalism is thus sacrificed to systemic corruption. If he found no actual conflict of interest, the judge should have simply and clearly dismissed the motions.

In New York, so called "independence" of the Offices of the US Attorney for SD of New York has led to a fiasco and delay of trial because that office failed to turn over a trove of over 100,000 pages of documents requested a year ago. IF the US Attorneys' office had a legitimate reason for withholding documents, then DA Bragg's office would have been alerted. But his office was apparently surprised to learn of the handover. No doubt, as in other instances in the myriad Trump cases, many of the sensationalized pages will turn out to be copies of documents already identified or disclosed. But the petty politics that undermines confidence in the system has created a fiasco.

These are but a few examples of how degradation of the system has cast the Judicial system in a bad light and undermined confidence. It is, in my opinion, that systemic rot that enables criminal intent, as with Trump, to place unethical, incompetent, and biased individuals on courts and in positions of responsibility for operation of the judicial system. It also opens the door for Trump to make largely unfounded claims that prosecution for his crimes is a "liberal plot." It does not require that there actually BE any conspiracy, as long as confidence in the ability of the system to deliver justice is impugned.  And that is a problem that all legal professionals, whether considering themselves liberal or conservative, ought to be concerned about and work to remedy.

The Supreme Court as a Independent Branch of Government? The Colorado Ballot Question

 

There will doubtless be a lot of analysis and nattering, about the Supreme Court of the United States ["SCOTUS"] ruling on the Colorado ban of Trump on the presidential ballot. But the decision, in essence, remains a bad one that is largely indefensible. While the ruling may be rationalized as “convenient” or “pragmatic,” because it comes on the verge of a presidential campaign, it nevertheless represents an abdication of the role and responsibility of SCOTUS as supreme arbiter of the language and principles of the Constitution. SCOTUS shifted that responsibility to Congress, though nothing in the Constitution or the 14^th Amendment states that its proscriptions and requirements are “subject to the enforcement or interpretation” of Congress. A longstanding principle of jurisprudence is that wording in the Constitution and legislation is to be given its "plain meaning" where the language is clear and unqualified. This SCOTUS ruling would have us accept that the Constitution may not mean what it explicitly says, unless Congress agrees with that plain meaning, and is capable of acting* to confirm that plain meaning.

Indeed [and I may be a stickler here to make a point], the SCOTUS has previously recognized and ruled that 14^th Amendment equal protections under law are enforceable even as against - not subordinate to – laws passed by Congress that infringe upon such rights. The SCOTUS ruling also states that Congress, and not the states, may enforce the 14th Amendment provision. But state courts routinely make rulings that enforce 1^st, 5^th and 14^th Amendments to the Constitution. So, the rationale that states cannot interpret the Constitution is a doubtful one. And the fact that SCOTUS must make difficult rulings on Constitutional issues does not justify deferral to Congress.

Democracy is admittedly a messy process, but that untidiness does not excuse SCOTUS from making legally sound and coherent decisions, even when the result might be "inconvenient." The Brown v. Bd of Education [14^th], Lemon v Kutzman [1^st], Miranda v. Arizona [5^th] and many other SCOTUS decisions interpreting and enforcing the Constitution all created significant “inconvenience” for governmental, educational, police, judicial, and other institutions when their practices were at odds with Constitutional principles.  While SCOTUS has a traditional caution about deciding “political questions,” this case did not present an essentially political question, until SCOTUS chose to make it one for political reasons. The question was simply: if “A” is an established judicial fact, then does “B” necessarily follow?  The Colorado Supreme Court confirmed that Trump's actions met the definition of an “insurrectionist” and someone giving aid and support to insurrection [“A”]. The 14^th Amendment, sec. 3, states that anyone who has previously sworn to uphold the Constitution and has engaged in insurrection cannot hold office [“B”]. The 14^th Amendment says nothing about equivocation based upon a potential candidate’s popularity or political party affiliation. The twisted SCOTUS ruling says that states can only apply the 14th Amendment, Sec. 3, to state offices. But the 14^th Amendment doesn't say anything about limiting authority of states to apply its restrictions only to “state” offices. That was a convenient and dishonest SCOTUS artifice.

There are two additional points of concern relating to the SCOTUS as an institution. If the designated third branch of government, tasked with final authority of deciding the meaning of language and principles contained in the US Constitution, cannot or is unwilling to uphold that responsibility, what is the need for such a body or institution? And when an abdication of that duty and role occurs specifically with regard to a question concerning fealty to a political strongman or party, can SCOTUS any longer make a legitimate claim to “independence?” The options for remedy might only be to abandon SCOTUS, or to remove justices who are incapable or incompetent to uphold its Constitutional responsibilities. Again, this is not a matter of differing opinion on legal principles or doctrine because there is no jurisprudential grounding for the ruling. 

Finally, it is disappointing that Justices Kagan, Sotomayor, and Jackson-Brown participated in the ruling, even as a concurrence in the result. If they were going to concur in the result, while distancing from the majority, there was an obligation to provide a sound legal basis and explication for such action. Moreover, judicial integrity would have called upon them to refuse to sign on to any ruling relating to the Jan 6 Insurrection in which Clarene Thomas was a participant. His participation destroyed the integrity and impartiality of the ruling. It does not matter what side of the ruling Thomas was on [though that aspect was a given], because his wife was an active participant in the fake electors plot and also attended the Jan. 6 Rally that preceded the attack on the Capitol. 

* Deferral to, and dependence upon, the current Congress that cannot even pass legislation to keep the government running or to provide essential foreign aid to allies is a dim hope.

Regulating or Holding Accountable the 4th Estate?

 I have faith in the US Constitution, but that faith has been sorely tested, and many interpretations so distorted that it is sometimes challenging to tell that the source was supposed to be the constitution.

Having said this, I have to question the expanded interpretation of freedom of the press. The principle is valid; but when it is so abused, I wonder about the limits. For example, consider the daily news reports of GOP "investigations, "inquiries," and Trump "attacks" and "claims" about misconduct and attempts to impeach political opponents.  Whether it is Jordan, Comer, Smirnov, Trump, Gaetz, or whoever, we repeatedly see assertions highlighted in the "news" go down in flames. Often, we later find clear evidence that the claims and evidence were KNOWN to be false before being publicized. 

I don't approve, but don't condemn the GOP prevarication. They either don't know any better or cannot help themselves. But the problem for me is the media which, negligently or intentionally, fails to vet or corroborate the claims BEFORE using the powerful megaphone of the public media to broadcast the falsehoods. Doing so for sensationalism and ratings distorts the purpose of the constitutional protection. And we are not talking about occasional errors. This is a daily occurrence; it has become the norm.  Democrats are not immune from such prevarication; it's just that it does not appear to be their typical practice, as with the GOP.

Perhaps the case against FOX and Murdoch could be a productive starting point. When a media outlet broadcasts false claims and stories that it knows [or should have known with minimal reasonable inquiry - such as corroboration], that media outlet might be held accountable. In other words, any media outlet claiming "freedom of the press" protections should be able to demonstrate that it follows procedures to ensure accuracy and objectivity of its reports, generally and in the specific instance. In the past, this distinction used to separate legitimate news organizations from tabloids and rags. One expected tabloid reports to be sensationalized and unreliable. They were "entertainment," not news. In the current environment, with internet outlets, blogs and the proliferation of so-called "media outlets," the distinction is lost.

This could turn into a mudslinging brawl with accusations of "fake news" competing against sloppy and irresponsible "journalism." But I wonder if that would be worse than the current situation. It has always been important to check multiple news feeds and compare the sources, basis and reasoning of the various reports before coming to any position. But have you ever tried to find an object of real value in a garbage dump? Trying to discern reliable factual information from the current slag heap of sensationalized and often incomplete or inaccurate "news" is a real challenge. We have "freedom of speech," but some speech becomes actionable, and some statements can be defamatory. The point is not to eliminate freedom of the press or free speech. The idea is to require that such "rights" be exercised responsibly and not with impunity.   

The Embarrassment that is Clarence Thomas - Requiem for the Sixth Amendment

When very public acts by notable public figures occur, we sometimes feel a sense of pride or embarrassment because of their actions. Some people expressed both regarding the public confrontation between Actor Will Smith and Comedian Chris Rock at the Academy Awards. But it is vital to note that neither Smith nor Rock is "representative" of Black men or Black folk. The case of SCOTUS Justice Clarence Thomas is another matter. He holds power that represents and can greatly affect the lives of citizens, and should be expected to vote on important Constitutional cases while mindful of the history and perspectives, as well as the implications, related to people of color under the US "rule of law."

Some people take umbrage at the characterization of SCOTUS Justice Thomas as "Uncle Thomas.” Yet sometimes a sobriquet is quite fitting and earned. The archetype character of "Uncle Tom" was a slave sitting at the foot of his "massa," making clownlike apologies while doing the oppressive bidding of white slaveholders. Clarence Thomas sits on the SCOTUS as the only current Black citizen. [Thankfully, the SCOTUS will soon seat a highly intelligent, experienced, and culturally aware Black female jurist.] 

Like Uncle Tom, Clarence Thomas has disavowed or completely forgotten his heritage and history. His lead opinion in the recent ruling in the Arizona Ineffective Assistance of Counsel Case shows not only a disregard for the Sixth Amendment guarantee to criminal defendants the right to effective assistance of counsel, but also the history of abundant criminal justice system abuse, particularly against Black citizens, that makes that Constitutional guarantee so fundamental.  

For decades, state level courts have imposed convictions on criminal defendants of color, while ignoring due process, abuse of procedure and misconduct by prosecutors, reliance on circumstantial evidence [if that], while so-called “defense counsel” sat by and did nothing to protect the rights of those defendants. Federal court intervention has often been the only effective means of redress for the wrongly convicted. But “Uncle Thomas” opines that the same state level abuse and bigotry that has produced such practices must be deemed paramount and prevent correction or relief by federal courts. Moreover, federal courts cannot even conduct hearings to consider whether ineffective assistance of counsel was evident, even in cases where the consequence may well be execution of the criminal defendant.  Justice Sotomayor, in dissent, properly described Uncle Thomas’ opinion as “perverse” and “illogical.” And that harsh assessment was tempered by a level of customary civility among justices. 

Neither the rest of us nor history will be so kind in assessing Uncle Thomas’ ruling. It is likely to be considered as infamous and as inhumane as prior SCOTUS opinions of Taney in the Dred Scott Case [that African Americans “had no rights which the white man was bound to respect.”] or the Holmes opinion in Buck v Bell approving involuntary sterilization of the disabled [“Three generations of imbeciles in enough.”] Such perfidy might be expected from Justices Kavanaugh, Barrett, and Alito, who deftly positioned Thomas into the leading role of authoring the majority opinion.  Thomas ought to be embarrassed by his actions, but all of us should be embarrassed to have a Supreme Court of such character as to issue such a ruling. 

https://www.cnbc.com/2022/05/23/supreme-court-decision-makes-it-tougher-for-inmates-to-win-release-from-prison.html

The Hate Mongers Among Us - From Buffalo Forward

We do not have the luxury of fatigue. But I confess that I grow weary of listening to talking heads braying on about how "horrible the senseless deaths" in Buffalo, NY were. All the while their prattle serves to normalize and rationalize behavior that is neither civilized nor rational. The deaths were not "senseless," as every person of color sensed loss and dread upon hearing of the incident [yet another one!] And we know that the attack was not mindless, as it was well planned and intentional. And we now know that more attacks were planned and would have been deliberately executed, cheered on by the likes of Tucker Carlson, Alex Jones, Marjorie Taylor Greene, and their ilk for profit and notoriety. And we, as a society, lack the courage or commitment to call it out, to condemn the conduct and those who traffic in such hate and violence.

We miss important distinctions when talk shifts to “free speech.” The law makes clear that yelling “fire” in a crowded theater is not protected “speech,” it is an act of terrorism intended to cause serious harm. Yelling to an assembled mob to go and attack the seat of government is not "free speech," it is a treasonous act of violence. And broadcasting messages to white supremacists to take up arms to “defend” the “white race” by massacre of people of color is not free speech. As those who lie dead in Buffalo have paid the cost, and the many persons of color who have preceded them will attest, such actions are far from “free.”  Yet we lack collective fortitude and commitment to condemn and hold accountable those who would engage in such acts. That lack of courage is evidence of the distinction between the “America” we talk about and hope to build, and the "Amerikkka" that we now HAVE. Is it a tacit concession that the elements engaged in such hateful and violent beliefs and conduct reflect a significant faction of “normal” Americans?

Beyond standing or sitting around shaking heads, wiping tears, and wondering, action is required. We believe in a system of government and collective “representative” action. Thus, we must both look to and demand that the government begin to seriously address such behavior as domestic terrorism. No one of us can draw the line, but we must collectively define it and make clear that which is NOT normal or acceptable behavior in OUR society. We rue deaths of innocents slain because of the color of their skin or their ethnicity, after the fact. Yet there were clear advance signals, opportunities, if not encouragements, for the Buffalo shooter and like-minded individuals to plan and execute such terrorism. The Governor of New York throws up her hands and wonders why the Buffalo shooter was not “red flagged” and prohibited from purchasing the semi-automatic weapons used, or the materials to modify ammunition clips. But we know how easily they were acquired and how.

We do not need to adopt an Orwellian pre-emptive state. A free society does entail risks associated with open expression of ideas, including unpopular ones. Rather, the point is to regain rationality. We accept that police can recognize the difference between someone driving safely and someone driving wildly and erratically. The latter needs to be stopped, whether the cause is inebriation or a mental or physical disorder. The police may even prohibit such person from driving. Otherwise, imminent danger to the lives of others is at stake. It is no less a sign of impending danger when a group assembles in an online forum and goes beyond ranting to discuss specific strategies for mass murder and how to acquire equipment for such actions. There ARE warning signs. Is it a sign of what we "tolerate" when police can and do engage in surveillance if a group is planning to rob a bank, but are unwilling to use surveillance when a group is planning a race based massacre? 

We cannot prevent all such incidents, and it is not a simple matter to do so, but we do have intelligence that enables us to observe when controversial “speech” crosses the line to become action and conspiracy to commit violence. We have the capacity to address the hate speech that precipitates violence, and we have the capacity to restrict guns from acquisition by those who engage in such plans. What we lack is the courage and commitment to reject such elements as part of an acceptable society and to employ that capacity to intervene. Those deficiencies define our society. 

Put Aside Cynical Theatrics and Get Serious: Case of Kanye West

 Recent articles in the media surrounding Kanye West have highlighted the cynical and morbid penchant of the media []and public] to exploit virtually any situation, often without any regard for moral implications. The ostensible "public interest" angle was his apparent "stalking" of Kim Kardashian, who is getting a divorce from West. Certainly a split of a high profile celebrity couple is nothing "new" and not really newsworthy. But the Kardashian "brand" is built upon publicity rather than talent or substance. What that also means is that, although West's continued pursuit of a relationship beyond a connection to their children is inappropriate and a bit pathetic, there is likely no actual danger to Kardashian. She has had a virtual army of assistants and security personnel for many years.

The problem lies elsewhere, and it is with West. There is an obvious problem with his bipolar disorder and mental instability. On the positive side, he has demonstrated that he could be successful displaying his artistic talent while simultaneously suffering from a mental condition most might find debilitating. But it also appears that he has experienced various periods of stability, perhaps while on his medications, and other periods of serious instability. He was in such an unstable period when he was persuaded to do an interview with Donald Trump, which was not only cleverly exploitative by the Trump Camp but also portrayed West as a lunatic. That ploy was successful for Trump in suggesting to his "Base" that Black folk, even very successful ones, need not be taken seriously. The event was a media frenzy when there really was nothing substantively newsworthy. Yet it appealed to political theater and to morbid public curiosity. But where were the mental health professionals, and where were the supposedly responsible aides West should have had to advise him against such behavior, especially when obviously off his meds.

Fast forward to recent days. West buys a house almost across the street from the Kim Kardashian home. Yes, he has the money and an ostensible desire to be "closer" to the couple's children. Other celebrity couples have resolved similar issues with more civility and common sense. Tiger Woods has a home in the vicinity of where his ex-wife Ellen Nordegren and their children lived. But it was at a respectable distance and not deliberately intrusive. However, West's motive became much more apparent when he chose to make public threats of actual violence against men Kardashian has dated. And, of course, in the Hollywood arena such pairings and activity become media fodder, especially for one who parasitically thrives on media attention. This is not to say that a man who refuses to accept an end to marriage might not be jealous of attention paid to his former partner. That is not "irrational" or mentally ill. How one deals with such jealousy, within the bounds of the law and civility is another matter. The threats West has made against Davidson are beyond the bounds of law and decency. Moreover, the behavior again highlights the fact that West apparently has no staff or "assistants" willing or able to restrain his impulsive and mentally unstable behavior.

When media personalities of color, including Trevor Noah and D.L. Hughley tried to call out West's behavior, not to ridicule him but in a more fraternal vein to try to offer the advice he was obviously not getting from his staff, West publicly threatened them as well. This is a clear and obvious sign that West is both out of control and dangerous. Finally, some public media has taken action to suspend access to platforms he has used to make public threats of violence. But that is not enough, media should take the responsible step of a media embargo of West until it is evident that he has gotten some help from mental health professionals. The man is in serious need of help. No matter how "entertaining" it might appear to witness his meltdown, many would also feel sad if and when his uncontrolled behavior resulted in serious harm to Kardashian, Davidson, Noah, Hughley, or anyone else. And this would also be a dereliction and a tragedy with respect to West's children who will have to live with the consequences. 

Russian Invasion of Ukraine: Putin's "Retaliatory" Export Ban in Response to International Sanctions

While I see the response by Putin to international sanctions as predictable and retaliatory, like a schoolyard bully, they also appear to be more emotional and symbolic than they are likely to be effective. Banning exports is a symbolic statement, but not likely to have major lasting positive outcomes for Russia. 

It may be true that stopping export of some raw materials [aluminum and phosphates] may cause a rise in some prices as other nations adjust to alternative supplies. [None of the raw materials banned are available exclusively from Russia.] But to keep Russians working, those materials need to be sold to somebody. And the list of allies needing and able to buy such goods is shrinking daily. Most of Russia's  manufactured and finished goods are exported to Russian puppets like Belarus. So other nations are not really going to be “punished” by this “shoot yourself in the foot” strategy. Moreover, manufacturing of such exports keeps a lot of Russians employed. So curtailing exports hurts Russian economy. At the same time, previous buyers of such goods will find other suppliers they deem more reliable. As for consumer goods companies like Starbucks and McDonald's, their model is light on investment in land and buildings, while heavier on disposable goods and service workers. Their withdrawal will mean loss of many Russian worker jobs. And nationalizing "goodwill" assets will be a pyrrhic victory for Putin.

Finally, Russian threats to nationalize assets of foreign companies that withdraw because of the invasion of Ukraine are likely to have longer term negative effects. Initially, those companies will have to balance economic losses because of continuing business with Russia with the value of investments in Russia. [Real risk of boycotts based upon public reaction.] Mid-range effects will be the loss of jobs in Russia from withdrawal of international companies. The greater long term effect will be that international companies will have to think very hard about even attempting to re-enter Russia. Caterpillar can build tractors in Mexico, Poland, and other nations with lower long term risk. Certainly, that is the case as long as Putin is in control of Russia.  Major capital investment tends to be risk averse, and Putin is anything but “stable.” For every manufacturing plant Putin nationalizes, the corporations should simultaneously announce expedited plans to build and maintain alternative plants and supply lines in other nations. The obvious message to Putin is that his move will have long lasting consequences.

At the same time, Russia's ban on exports, even if Putin claims it to be temporary, will have effects at least as long as memories of the brutal and genocidal attack on Ukraine is remembered. [Parallels are already circulating about similarities of Nazi invasion of Poland.] The practical result is opening of new opportunities for other nations and economies to enter the gap created by Putin and to establish long term and lower risk business relationships that attract capital investment. China is already pushing influence via  "investment" as a strategy in Africa and elsewhere, as the Chinese economy expands globally. So, while Putin sees China as his "friend," it is likely that Xi is smiling and encouraging moves like this "export ban" because it give China a welcome advantage. Contrary to his egoistic perception, Putin is definitely not "the smartest guy in the room." 

For the EU, NATO, and Western nations, the response should be to continue to pressure their allied international businesses to withdraw from Russia, and citizens should reinforce that strategy with consumer boycotts of companies that maintain ties with Russia. Those companies will attract goodwill for their corporate conscience position. That goodwill will later be rewarded by average Russians, if the companies are able to re-enter Russia, or to business investments in other nations if Russia becomes a closed door.

See: https://www.bbc.com/news/business-60689279