Justice and Elections

 I had planned to write about the courts this week as a reminder that Texas is among the minority of states in that we elect our judges including at the appellate level. We therefore have both the opportunity and responsibility to determine who will make the final decisions in a wide range of legal cases, setting precedent and providing guidance to lower courts throughout the state. The death last week of Supreme Court Justice Ruth Bader Ginsburg brings that point home in ways that my words never could. It isn’t enough to just vote for Joe Biden and leave the rest of the ballot untouched. It’s important to vote in every race at every level.

The Court of Criminal Appeals is Texas highest court on criminal matters and has been dysfunctional for a decade. As examples please consider that a justice there once refused to consider a last minute death penalty appeal because the filing was delayed past office hours due to a printer breaking while it was being printed. Worse the same court has been slapped down by the Supreme Court of the United States twice on the same case for failing to do its job of reviewing the law regarding whether an intellectually disabled person should be executed. Judge Elizabeth Davis Frizell, Judge Tina Yoo Clinton, and Judge Brandon Birmingham are running to replace these lazy and apparently incompetent clods. All three are committed and experienced, with strong records of acting in the best interests of their respective communities. They deserve your support on election day.

In early 2016 when Justice Antonin Scalia suddenly died more than eight months before the election and President Obama had the responsibility to nominate a successor; our senator, John Cornyn, repeatedly stated that the next president should choose that nominee because it was an election year. Cornyn is quoted in numerous media sources and his own website saying: “It's not about the personality, it's about the principle ... that it's up to the American people in this next election, no matter who they choose, to make the nomination for this important seat on the Supreme Court.” “My view is that this is not about the potential nominee; it's about who chooses. And I believe strongly this should be a referendum on who chooses in November.” “I believe the American people deserve to have a voice in the selection of the next Supreme Court Justice, and the best way to ensure that happens is to have the Senate consider a nomination made by the next President." Now, when early voting has already begun in some states and election day is less than seven weeks away; he has changed his tune retweeting Senate Majority Leader Mitch McConnell’s statement: "President Trump’s nominee will receive a vote on the floor of the United States Senate."

If John Cornyn has a shred of integrity he’ll rethink that and be guided by his own 2016 statements to allow the winner of the election to choose the next Supreme Court justice. You have the responsibility of reminding him of that by calling his office either in San Antonio at 210-224-7485 or in Washington, D.C. at 202-224-2934. Another way to put the fear of God in him would be to make a donation to his Democratic opponent, MJ Hegar, at https://mjfortexas.com/ .

Published in the Seguin Gazette - September 23, 2020

Kavanaugh Nomination Tainted by Conspiracy with Foreign Adversaries

There are a host of reasons to reject Brett Kavanaugh’s nomination to the Supreme Court. From the purely partisan point of view there’s the theft of a seat in the last year of President Obama’s second term. From power perspective Kavanaugh has expressed some dangerous ideas such as his belief that a sitting President should be insulated from justice unless dispensed by congress through impeachment. From an issues point of view Kavanaugh’s decisions and dissents in numerous cases in ways that show his deference to corporate power over workers’ rights, religious bigotry over religious diversity, and the use of wealth to achieve political power in order to enhance that wealth.

I could write pages on how Kavanaugh could be one of the very worst possible choices for a lifetime appointment to the Supreme Court but Kavanaugh’s views and rulings are not the only reasons to object. We should also consider that the man occupying the White House and nominated Kavanaugh has been all but named as an unindicted co-conspirator to felony crimes involving campaign finance violations that have a penalty of 5 years in prison attached. Michael Cohen who infamously organized the payoff of porn star Stormy Daniels testified in open court as he plead guilty to 8 counts that he acted at the instruction of the “candidate”. That means that Cohen not only committed a violation of campaign finance laws he was involved in a conspiracy with Donald Trump to do so.

In addition other Trump associates have been given immunity from prosecution for testimony that at present we can only propose educated guesses given their positions and what we already know about them through leaks. The publisher of the National Enquirer, David Pecker, kept a safe full of documents which tell a tale of Trump’s cover-ups and possibly other illegal acts and he is prepared to testify. The Trump Organization’s Chief Financial Officer, Allen Weisselberg, who served in that capacity for over 20 years has also received immunity from prosecution for his testimony. That makes three of Trump’s closest associates, people who know “where the bodies are buried”, willing to testify against Trump.

Perhaps the most import of all the Cohen revelations is his statement that he witnessed the discussion Donald Trump denies having with his son in advance the meeting with Russian’s to collect dirt they claimed to have on Hillary Clinton. This provides evidence that Trump did indeed conspire with a foreign power against the United States.

Of course Trump hasn’t been convicted, but his legitimacy has definitely been called into question and while it is still too early to talk about impeachment it isn’t too early to put a stop to every judicial nominee’s appointment until such time as all the evidence has been presented and assessed. Most especially no President tainted by dalliances with foreign adversaries should be allowed to place their appointees on the federal bench for their lifetimes. The legitimacy of every single one of the judges he’s already appointed is also tainted.

The allegations against Trump are too significant to allow him to continue to reshape the federal judiciary unless and until the allegations are put to rest after a thorough review of the evidence presented. That won’t happen for months and likely not until after the election and only if his enablers on congress are defeated at the polls in November.

Republicans Know How to Exercise Power

I have to compliment Senator Mitch McConnell, he knows how to use power. When there was a Democrat as president and a vacancy on the Supreme Court 9 months before a presidential election and 11 months before a new president would take office McConnell used his power as Senate Majority Leader to stop even the consideration of the President Obama’s nominee. His argument was that the people should be allowed to speak. It didn’t matter that his action was unprecedented. The people spoke and nearly 3 million more voted for the Democrat. Nevertheless a Republican won due to the anti-democratic Electoral College votes and it didn’t matter that it was hypocritical to still prevent even a hearing let alone a vote.

Now only 5 months from an election in one third of the senators who will vote on the new president’s Supreme Court nominee will stand for election he’s pushing hard to assure that a vote is taken before the people have an opportunity to speak again. Democrats just don’t have the idea that when you have power you’re supposed to exercise it. Obama had overwhelming majorities in both the House and Senate and failed to use his power to push through a robust Affordable Care Act. Obama, Harry Reid and Nancy Pelosi allowed the Republicans to amend and twist the bill into a pretzel without ever committing to vote for it. That’s one of the reasons Republicans and Trump have been able to whittle away parts of it in an attempt kill it without taking blame for breaking the parts that even Republican voters like.

Obama and the Democratic congressional leadership failed to use the power of their offices to twist arms that needed twisting and it was just the Affordable Care Act. We didn’t get the forceful stimulus bill we needed, nor the environmental protection bill that would have put a real dent in climate change, or an immigration bill that might have prevented the tragedy we’re seeing at our southern border today. In fact I would argue that Obama’s failure to use the power inherent in the office is the very reason we have Trump as president today. I believe that if he had used his power in concert with the congressional leadership Democratic voters wouldn’t have sat on their hands in 2010 and Republicans wouldn’t have taken control of both houses of Congress. If he’d been the strong leader we needed voters in states like Michigan, Pennsylvania and Florida would have turned out to vote for another Democrat in 2016 and the winner of the most votes would have also won the Electoral College vote.

It’s important that Democrats get out and vote in November so we can take back the Senate and the state legislature. It’s also important that our Democratic leaders use their power to do the people’s will. Failure to use your power is a lot like failure to use your muscles. Democrats have allowed their power to atrophy unlike Mitch McConnell who doesn’t even blink at his own hypocrisy. McConnell uses his power to get anything and everything he can accomplished.

Neither Franklin Delano Roosevelt nor Lyndon Johnson were perfect, but they did great things for this country because they understood both the need and the method for exerting power. As we now know winning elections isn’t enough if you aren’t going to use your power to get things done. Understanding the use of power is one of the key attributes I will look for in every candidate in future primary elections.

Published in the Seguin Gazette - July 13, 2018

Trump Takes Overtime Away

This week 100,000 Americans lost the right to overtime pay and what’s worse is that they are just the tip of the iceberg. Monday’s Supreme Court decision in the case Encino Motorcars v. Navarro was all about whether or not service advisors at auto dealerships are exempt from overtime provisions in the Fair Labor Standards Act which was originally passed in the 1930’s. The result was disappointing though unsurprising as the Supreme Court had ruled much the same way two years ago when sending the same case back to the Ninth Circuit Court of Appeals with orders to rethink their prior decision in favor of the service advisors.

The five conservatives on the court claim that “if you ask the average customer who services his car, the primary, and perhaps only, person he is likely to identify is his service advisor.” The four liberals disagree, and I’ve got to say while I’ve never spoken to a mechanic at any dealer where I’ve had my car repaired I know darn well that the service advisor isn’t the one doing the work if for no other reason than they’re sitting in an air conditioned room talking to customers like the receptionist at the doctor’s office. I’ll bet you’re not fooled for a minute either.

While it’s frustrating that anyone loses their right to overtime pay you might think, “well it’s only service advisors at auto dealerships so this is a really limited issue”, but you’d be wrong. You see when Justice Clarence Thomas wrote the decision he made a point of also declaring that prior decisions which were based on narrow interpretations of exemptions to requirements of the Fair Labor Standards Act were also wrong. This means that a lot more people stand to lose not only overtime protections but any number of other protections of the law. Experts believe that we’ll be seeing new court cases over employers seeking to cut their employees pay, benefits, and other protections of the law for years to come.

When we elect a president we aren’t just getting that one person or just their ideas and actions, we’re getting a whole list of appointees both in the cabinet and in the courts. When we elect members of Congress we aren’t just getting one person to act on our behalf, we’re getting the entire party they belong to for good or ill. In this case Ted Cruz and John Cornyn are just as responsible for taking away overtime protection from the service advisors and others who will lose those and other benefits in the coming years as Donald Trump. They were active participants in stealing the Supreme Court seat that allowed Trump to appoint Neil Gorsuch when they withheld hearings on President Obama’s nominee claiming that a year was too close to an election to name a new Supreme Court Justice.

The next time a friend or family member tells you they aren’t political so they don’t vote or that it doesn’t matter who is elected, remind them that overtime, family leave, sick pay and any number of other benefits they take for granted can be taken away due to who gets elected. In November Texans have an opportunity to forcibly retire Ted Cruz by electing Beto O’Rourke to the United States Senate. That will go a long way toward stopping further Trump appointees who would stand for corporations and billionaires at the expense of every day working people like you and me.

I wonder how many service advisors are rethinking their vote for Trump now.

Published in the Seguin Gazette - May 6, 2018

Trump Delivering on Promises is Double Edged Sword

Trump is delivering on or at least signing documents that appear to deliver on many of his campaign promises. He made promises to the evangelical Christians and ultra-conservatives which he’s delivering on with his nomination of Judge Neil Gorsuch to be a justice on the Supreme Court. Not only is Gorsuch a man in the mold of Antonin Scalia which Trump promised his nominee would be, he’s also the mind behind the Hobby Lobby v. Burwell decision with gave corporations the right to be exempt from laws that offend their shareholders. Frankly I’ll believe that a corporation has religious rights when I meet one in church.

One of the defining reasons to incorporate your business is to protect yourself from legal responsibility for actions and liabilities of the business. If you incorporate your business you have created a legal entity with the rights and responsibilities to engage in business and if the entity is sued the owners are not a party to the lawsuit in most cases. Gorsuch’s decision bridges the gap between the owner and the corporation enabling the owner to claim that the business shares their religious convictions and therefore should be exempt from providing insurance coverage the provides contraception. In my view bridging that gap pierces the “corporate veil” which protects shareholders and may one day come back to haunt businesses due to the loss of protection offered by it.

Trump also recently announced that his administration would “totally destroy” the Johnson Amendment, which prohibits churches from engaging in political activity at the risk of losing their tax-exempt status. Such a repeal of the law would require approval by Congress. Currently certain tax-exempt organizations — in this case, churches — are not allowed to openly endorse or campaign for political candidates. If they do, under existing law, they risk losing the benefits of their tax-exempt status. Should Trump get his way he’ll be able to honestly say he’s delivered on another campaign promise to evangelicals who have chafed under this restriction for quite some time. There are even organizations of lawyers who among other issues have repeatedly attempted to get this restriction overturned so his success would be met with great joy in some circles. I have to wonder though if it isn’t a double edged sword in the sense that it will also embolden and empower churches which take opposing views on many issues dear to the hearts of the evangelicals Trump seeks to reward for their support during the election. How will they feel when an Imam at a nearby mosque calls for followers to vote for a candidate opposed by their church?

Nominating Betsy DeVos to be Secretary of Education is an indirect reward to the evangelicals who supported Trump in that she’s a strong supporter of school vouchers which she and others want to allow parents to use in order to fund their child’s tuition to private religious schools. This is a very contentious issue since having the government directly fund religious education seems to violate the First Amendment by favoring religion with our tax dollars. I know a lot of very religious folks feel strongly in favor of this because it would either save them a lot of money they’re currently spending or would enable them to send their children to such a school. I have to wonder if even more voters won’t be up in arms when they learn that those funds must also be provided to members of other faiths and they see a news story about a taxpayer funded madrassa right here in the United States just like in Afghanistan.

Weiner resigned now it's time for Clarence Thomas to go also

The media went crazy for weeks over naughty pictures Rep. Antony Weiner (D-NY) sent via twitter and now he has resigned. Why hasn’t the bigger scandal of Justice Clarence Thomas’ unethical and illegal behavior had as much or more attention given the power he has as one of only nine Supreme Court Justices?

52 years ago Justice Abe Fortas resigned in disgrace for accepting gifts from wealthy patrons who had interest in cases heard before the Supreme Court. Thomas has taken gifts valued in the tens of thousands of dollars from Harlen Crow and the American Enterprise Institute just to name a few. Since presenting its gift the American Enterprise Institute has filed three briefs in cases before the Supreme Court and Thomas has ruled in their favor every time. Whether or not it was quid pro quo the appearance of a conflict should have been enough for Thomas to recuse himself but he didn’t.

Clarence Thomas also lied when he repeatedly failed to disclose his wife’s hundreds of thousands of dollars in earnings from her job at the Heritage Foundation as he is legally required to do. So why is it that the media in this country is far more interested in satisfying our prurient interests than it is in doing its job as America’s watch dog?

Now that you know about Justice Thomas’ lies, unethical and illegal behavior will you call for him to resign like Anthony Weiner and Abe Fortas before him?