The two big things wrong with politics

I tried for a good ten minutes to find a title that briefly and succinctly describes our broken political reality without using any type of expletive; I failed. It goes without saying that, particularly at the national level, the red-versus-blue tribal mentality of the day is extraordinarily awful. I’ve been trying to figure out the underlying causes for a couple years now, and think I have finally zeroed in on two central ailments.

The first is an adulteration of sincere information, which runs hand-in-hand with the demonization of views that challenge one’s own. This, in my opinion, has by far the most deleterious consequences.

As I have noted repeatedly in a somewhat jovial manner, the degradation of the consumption of “healthy” information has been somewhat rapid in this state. Newspapers are shriveling, news radio stations are shuttering and local television news has largely been reduced to 30 minutes of shooting coverages and cats of the week. Make no mistake, this is not because of a lack of competent journalists in all mediums. It is because the average Texan — indeed, American — is far more comfortable getting his “news” from the television monitors at a gas station than in something he actually has to read. I purposefully say he because the problem is significantly worse with men.

However, apart from apathy on the part of the average citizen, many political inclined individuals have moved away from the fair arbiters of newspapers and other unbiased news sources. Fox News and MSNBC are rather trite examples, but they are only the tip of the iceberg. Many blogs allow partisans to create a completely alternate universe where their fantasies can become reality –ever so briefly. For a liberal in Austin who got 100% of her politics from Burnt Orange Report or Addicting Info, perhaps there could have been genuine shock to the utter shellacking that Wendy Davis and the Democratic slate received in Texas last year.

However, to cast this issue as equally bad on both sides would be monstrously disingenuous. When it comes to blogs and other online sources that spin the truth or just make stuff up, nobody even comes close to the Tea Party. I’m friends on Facebook with a few rabble-rousers within those organizations, and I see no shortage of evocative headlines from sketchy sources littering their timeline. They are the political equivalent of the National Enquirer, though that would probably be an insult to the Enquirer for the 5% of stuff they don’t make up.

Take this recent article from “Next Generation Patriots” about a supposed report linking Hillary Clinton to the Benghazi terrorist attack once and for all. Nevermind that even the Republican committee that orchestrated the investigations have cleared the administration. This is a BOMBSHELL REPORT! Sadly, all too many people believe this drek, because somehow they have been deluded into thinking that these uber-partisan online tabloids are more reliable than actual newspapers. I am baffled and speechless.

Similarly, I saw a Facebook friend share this nearly year-old post from “America’s Freedom Fighters,” which alleges that the Muslim Brotherhood is infiltrating the American government. At this point, I’m really at a loss for words. Are the authors of these sites actually delusional, like in a clinical way? Or do they just sit around a big room thinking of provocative things to completely lie about? And yet, individuals heavily involved in Tea Party causes, the 1% of the political process in this state, actually believe them and are influenced by them.

The decline of the information process has a companion in the elimination of robust opinion journalism. In my view, the harmful effects are comparable. We have become a nation of echo chamber dwelling simpletons, who become offended by anything that challenges our own preconceived notions.

For example, since the summer, I have served on the editorial board of The Daily Texan (one of the top 10 largest newspapers in the state), also serving as an editor for the opinion/editorial section. I like to think that the Texan runs our editorial content the way a reputable publication should. For the three semesters I have sat on the editorial board, our consensus opinion has been somewhat left-of-center, but we have always gone to lengths to ensure we have a plethora of conservative voices as columnists.

Sadly, few appear to appreciate this dedication to diversity in the editorial pages. The columns chock-full of liberal talking points get spread far-and-wide by like-minded individuals and groups; same for the conservative talking points. The few times I have shared columns that I disagreed with, but were particularly thought-provoking nonetheless, I faced nothing but derision by the “Tea Party Democrats” who incessantly accused me of being some type of horrendous political traitor who should be ashamed of myself.

Opinion content is not about validating all of your existent beliefs. Rather, it is about challenging your conventions. I have always been raised to believe if you cannot defend your views and positions against criticism and derision, they weren’t very good beliefs to begin with. With politics, that is especially true.

I subscribe to three magazines: The Atlantic, The Economist and Texas Monthly. If I had extra time and money, there would likely be others on that list, but those three in particular have always struck me as understanding how opinion content should work. They are unafraid to taking bold, new positions, and they defend these points with logic and reason remarkably well.

Particularly with the Economist, I found myself Freshman year of college disagreeing with a great deal of its content. The sophomoric juvenile in me wanted to just stop reading and retreat to the trite, backwards leftism of The Nation or Mother Jones —but the adult kept on reading. After a semester or two, two major developments had occurred in my political thought process. First, I had gotten a lot better at defending my tried-and-true liberal positions in the face of unwavering criticism. For example, the Economist is thoroughly skeptical of affirmative action, a program that I have always greatly supported. I like to think my defense of that position has been made more competent.

Second, and perhaps most important, some of my lousier political positions changed. Most notably, when I was in high school, I was a paleoliberal on topics such as free trade and protectionism. I opposed NAFTA. I favored silly, outdated things like tariffs and foolishly thought that such a course of action — say, by heavily taxing Japanese automobile imports —  could do things like pay down our deficit and assist in economic prosperity.

The more I did research inspired by those articles, the more I realized that free trade — arguably the Economist’s biggest trademark — is not an inherently bad idea. My introduction to economics class at Brandeis — a “saltwater school” in Boston, not a “freshwater school” in Chicago — corroborated this, and that was that.

Sadly, few people use opinion-based political content for such reasons anymore. All too often, it’s just used as a way to support what one already believes. Anything with which one disagrees with is immediately labeled heresy or worse.

The second, and admittedly probably less important, problem plaguing our political system is a total elimination of respect for authority. Let me clarify: I do not mean blind allegiance to one’s government or jingoistic patriotism or the like. Instead, I mean respecting the opinions of experts in their pertinent fields.

The most egregious example of this, in my opinion, is the Tea Party total adulteration of the word “constitutional.” In their topsy-turvy world, the constitution has taken on this divine power in which it is revered as a truly perfect piece of literature. “Look to the constitution” is the cliche that is the answer to nearly every single political quandary, much how “look to the Bible” is the trite retort for a proselytizing fundamentalist.

First, it goes without saying that the constitution is far from perfect (3/5ths compromise, anyone?), but the real issue is a fundamental misunderstanding of how we adjudicate disputes about the nation’s founding charter: the court system.

Even otherwise reasonable conservatives fall into this trap, quickly calling Obamacare some type of “unconstitutional” trainwreck. Most criticisms fall within the realm of one’s opinion, but the constitutionality of a law is not one of them. The Supreme Court explicitly upheld the crux of Obamacare’s constitutionality in 2012. By definition, that means it’s constitutional. I would say you’re supposed to learn about stuff like judicial review in the 11th grade, but the Oklahoma Legislature is definitely doing their best to prevent that.

The Tea Party, egged-on by those aforementioned political tabloids, has taken it upon themselves to usurp the judicial system’s authority to call something constitutional. To a lesser extent, the left has done this as well. If I had a dime for every time I’ve heard a Democrat insist the campaign finance restrictions struck down in Citizens United were indeed “constitutional,” I could’ve bought an extra Dr Pepper at lunch today. You might disagree with the decision (I do), but, by definition, it’s not constitutional. My father, an attorney, made a point of teaching me that lesson in 2008 after the District of Columbia v. Heller case. If 14 year-old Noah can understand, you can too!

Sadly, the distrust of lawyers on legal matters is not the only example of such willful ignorance. Teachers have lost their ability to teach children without criticism and, of course, doctors and other medical professionals are accused of not knowing better than parents on medical knowledge. This was recently exemplified by the recent brouhaha over vaccines.

These deleterious beliefs of one’s superiority over everyone and anyone — no matter how knowledgeable or qualified on pertinent issues — have penetrated even ostensibly professional quarters of our society. I recently found Greg Groogan, a reporter for the local Fox affiliate, promulgating that exact type of hooey, specifically on the vaccine issue. (If you want to have some fun, check out the succeeding conversation on Twitter. I called him out, and he went off on me in especially sanctimonious and patronizing way. This, from someone who just straight-up fabricated stuff during the last mayoral election.)

This was a little more longwinded than I was going for, but those are what I believe to be the two most harmful impediments to a functional political system that we currently face. I fully admit I have broken these rules myself on a variety of occasions, but I have recently been trying my best to follow them.

Supreme decision

The New York Times reports that the US Supreme Court has agreed to hear a set of legal challenges to states’ bans on performing or recognizing gay marriage. The decision reversed a trend of the court from earlier this term of letting these cases stand at the lower level. The difference this time was that the Court of Appeals in this specific case, the Sixth Circuit (MI, OH, KY, TN) recently upheld the constitutionality of the bans, thus creating a split at the appellate level.  The case will examine two basic questions. First, may a state ban gay marriage? Second, may a state refuse to recognize valid gay marriages performed in other states?

Most commentators expect the court to strike down the laws, thus bringing gay marriage nationwide (thus Texas). Two years ago, in the case Hollingsworth v. Perry, the court specifically punted on the issue and found the intervenor-plaintiffs lacking standing. And while Windsor v. United States, which struck down a portion of the Defense of Marriage Act, largely relied upon federalism, it has been used as the primary vehicle for lower courts to strike down bans on constitutional grounds.

Last year, a District Court Judge in San Antonio struck down Texas’ ban on gay marriage, and a bipartisan panel of the 5th Circuit recently heard that challenge –and appeared willing to uphold that decision. Texas Monthly has a truly great article on that. Accordingly, even though gay marriage may very likely come nationwide by the end of June, it could come to Texas even before then.

Prognosticating on Supreme Court decisions is truly a fool’s errand. But just to be silly, I tend to think that the case will be 6-3, with Chief Justice John Roberts and Justice Anthony Kennedy joining the four liberals. Kennedy’s reasoning in Windsor would just be contradicted at a very basic level if he upheld bans. And Roberts, obsessed as he is with the court’s reputation, simply could not be in the dissent.

Every Governor in the Sixth Circuit is praying tonight that their state’s case is not selected, thus enshrining their name for posterity as the Ferguson, the Board of Education of Topeka, the Heart of Atlanta Motel for this generation.

This case, be it Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder or Bourke v. Beshear, will go down in history as one of the preeminent civil rights cases of our time. I say bring it on!

The Panetti execution

On Wednesday, Texas plans on executing a man named Scott Panetti. The underlying details of the capital murder in question have been delineated sufficiently previously, namely in an editorial I recently participated in for The Daily Texan, in which the editorial board not only argued for clemency in his case but for the abolition of the death penalty in general (something Texpatriate did last August). The basics are that Panetti, who murdered two people in the early 1990s, is severely mentally ill, to the extent that no reasonable medical professional could certify him as competent for execution under the standard set by the Supreme Court in the 2007 case of Panetti v. Quarterman.

And yet, perhaps unsurprisingly, Texas is soldiering on with the execution nonetheless. His attorneys, after reading about the tentative December 3rd execution date in the newspaper, quickly appealed up the ladder of the Texas appellate system. On Wednesday, the Court of Criminal Appeals (the highest criminal court in the state) ruled 5-4 against granting a stay of execution. The per curiam decision, however, did included the concurrence of the court’s lone ostensible Democrat, Judge Larry Meyers. As I noted in May, I’m not really a fan of Meyers, and there are plenty of Republicans on the court I like far more than him. They include Judge Elsa Alcaca, who wrote a blistering dissent, as well as Judge Tom Price, who wrote an individual opinion calling for the abolition of the death penalty.

Price, first elected in 1996, chose not to run for a fourth six-year term this year and will leave office in January. In his bombastic six page dissent, which you can find at this link, he explained in careful detail both his steadfast opposition to Panetti’s execution as well as to capital punishment altogether. One by one, Price dismantled the arguments for the death penalty, before chronicling his own personal journey. It is all eerily reminiscent of Justice Harry Blackmun’s big change of heart in the 1990s. Like Blackmun, Price will no longer “tinker with the machinery of death.” It’s a shame he won’t be on the court much longer, although it makes senses; no death penalty opponent could survive a statewide Republican primary.

Today, as the Texas Tribune reports, the Board of Pardons and Paroles voted unanimously to deny Panetti any type of commutation, clemency or reprieve. The only other state recourse would be one 30 day delay by Governor Rick Perry, which appears rather unlikely. Accordingly, Panetti’s lawyers have appealed the case to the US Supreme Court. Who knows what the Supreme Court will do, but the odds are placed squarely against Panetti in this instance.

This case, like most every other capital murder case, involves a totally reprehensible crime. Panetti brutally murdered two people. And while he is severely mentally ill, he is not so delusional that he literally does not understand the distinction between right and wrong. He understands, to some extent, that he erred in killing two innocent people.

All this is to say that I do not want him to spend any of his days as a free man. But the Supreme Court has held for many decades that a higher standard exists for capital punishment. And while I believe the barbaric punishment to be, in all cases, cruel and unusual, even tepid proponents should see that the execution of Panetti is wrong.

Supreme Court blocks HB2

The US Supreme Court has ruled in emergency fashion that invaluable components of HB2, the omnibus anti-abortion bill that Wendy Davis famously filibustered, may be stayed until appeal. Specifically, a provision that required all clinics to adhere to the standards of ambulatory surgical centers was put on hold, as was another in part. The provision that requires abortion doctors to have admitting privileges at a nearby hospital was set aside specifically for clinics in McAllen and El Paso, though not the rest of the State.

The ruling was 6-3, with Chief Justice John Roberts and Justice Anthony Kennedy joining the four liberals. The three arch-conservatives, meanwhile, dissented from the order. As most will remember, a Federal Judge struck down these provisions a couple months back, but a Federal Appeals Court lifted the stay while it considered the appeal. The Supreme Court today merely reapplied the stay of the Federal District Judge in Austin who originally ruled the law unconstitutional, Lee Yeakel. Last year, Yeakel also ruled other provisions of the law unconstitutional, in a suit that similarly was reversed by the Appeals Court, although the Supreme Court pointedly chose not to reapply the stay in that case.

The implications here are, in a word, huge. As noted above, the Court has decidedly not stayed previous decisions, often 5-4 and along party lines. The two moderate conservatives on the Court, Roberts and Kennedy, have for some reason decided to shift views on the topic. Perhaps it is because the full effect of the case would reduce the number of clinics in Texas to just 5 or 6, a horrifying lower number per capita than other states included Mississippi, which has only one. Whatever the rationale, the implications of this decision are rather significant. For the first time, I am even cautiously optimistic that the law could be struck down by the Supreme Court upon final appeal (which is still likely years off).

Additionally, this development will likely take everyone’s mind off of that silly Wendy Davis ad, which has been eating up a significant portion of the 24/7 news cycle recently. As unfavorable to Davis as talking about abortion might be, I would still reckon it is leaps and bounds above the fallout over her wheelchair ad. Anyways, that’s my two-cents.

As for the clinics closed by this law, they can now re-open. Sagacious followers of the press will be familiar with stories of clinics closing overnight and cancelling dozens of appointments along with it. Those clinics can now re-open and, hopefully, women can continue receiving the healthcare options they need.

Liberty & Justice for all (in these States)

The New York Times reports that the US Supreme Court has decided to not hear appeals on three separate decisions by Federal Appeals Courts to throw out state-level bans against gay marriage. A 4th Circuit ruling against Virginia, as well as a 7th Circuit ruling against Indiana & Wisconsin and a 10th Circuit ruling against Oklahoma & Utah were all left standing after the Supreme Court refused to get involved. This, after the Court had stayed all the decisions for many months. In the succeeding weeks, gay marriage will also almost certainly begin in the six other States covered by the jurisdiction of those three Appeals Courts: New Mexico, North Carolina, Kansas, South Carolina, West Virginia and Wyoming. This means that 11 States in total will have legalized gay marriage in short order, bringing the total number of States with marriage equality to 30, plus the District of Columbia.

The ruling is somewhat noteworthy, as it has struck most of the typically followers of the Court by surprise. Only four Justices, of course, are required to grant certiorari to a prospective case. What this means is that inch-by-inch approach commonly employed by the liberals-plus-Kennedy coalition on the Court needed at least one more adherent to prevent certiorari from being granted. I talked about this incremental approach a little last year, when the Court struck down most of the Defense of Marriage Act. Justice Anthony Kennedy, the closest thing to a moderate on the Court, joined with the four liberal Justices to hand a nominal victory to the proponents of LGBT rights, but they stopped far short of decreeing gay marriage nationwide –something that many pundits, including myself, so desperately wanted.

Accordingly, with these cases steadily making their way through the legal system, most assumed that the Court would be almost compelled to hear them and render a definitive up-or-down decision on the validity of state-level bans on gay marriage. They thought wrong.

Justice Ruth Bader Ginsburg, arguably the most prolific liberal on the Court, has been a particularly vocal proponent of the so-called incremental approach. She has been a somewhat active critic of the Court’s expansive ruling in Roe v. Wade, arguing it went too far too quickly and polarized the nation into incessant gridlock. On this issue, she has argued, the court should allow time for public opinion to change. And it has changed, in fact, quicker than anyone would have imagined.

Unfortunately, the court’s decision (or indecision, I suppose) did nothing to rectify the bans still present in 20 States, including Texas. Earlier this year, a Federal Judge declared Texas’ ban on gay marriage (as well as civil unions) unconstitutional, but that decision has been stayed pending appeal. The Fifth Circuit Court of Appeals has apparently been taking their sweet time on that case, but given the extreme conservatism of that court, if there is ever an Appeals Court to affirm gay marriage bans, it would be one.

At that point, with Appellate Courts coming to opposite conclusions, the Supreme Court would almost feel compelled to step in. The four liberals, almost certainly, would want to hear the case at that time.

Without a doubt, I’m happy that the Court has decided to allow, even by omission, for marriage equality to go forward in nearly a dozen states. I just wish Texas was one of them. I think the next step will be a nationwide mandate requiring each State to recognize gay marriages performed elsewhere. At that point, the barriers preventing it from being performed within the State will become just too superficial to be defended.

It’s time to stop Houston City Council prayers

Most of the longtime readers of this publication will be familiar with how I, as well as everyone else affiliated with Texpatriate, first got my start in local politics. For three years throughout High School, I served with 33 other young people in an organization called the Mayor’s Youth Council. We would meet in Council chambers a few times a month, after hours, and debate the pertinent issues of the day in a way that mirrored the real City government. This included the agenda itself, complete with ordinances, pop-off debates and introductory pleasantries. These pleasantries included the pledge of allegiance and a prayer. Ostensibly, the prayer should have been non-sectarian, but given that each member of the Council would receive an opportunity to participate, many had inherently Christian messages. The very same thing happens at the Houston City Council. Of course, this is where the similarity ended.

Under the stewardship of a few people, namely Luis Fayad (the Mayor-equivalent of the MYC my first year and a current Texpatriate Editorial Board member), the prayers were removed from youth council proceedings. As you might imagine, individuals in the Mayor’s office had some fairly strong words for us as a result of our new policy. But we proceeded with it nonetheless. The world did not end because the church had to stop its influence at the town hall’s doors. In fact, the protections of religious liberty from our Constitution were made all the stronger because of it. It is past time for the Houston City Council and the Mayor to follow suit.

Ironically enough, the constitutionality of this miscarriage of justice is likely in a much stronger position today than it was in 2009 when my contemporaries first challenge the procedure. Last year, the Supreme Court held 5-4 in Town of Greece v. Galloway that a local municipality did not transgress the Establishment Clause of the 1st Amendment by holding sectarian prayers. However, more than a constitutional or legal point, these prayers should be done away with from a moral point of view.

Thomas Jefferson said it best that there should be “a wall of separation between Church & State.” Obviously, when a City Councilmember or the Mayor in their official capacity espouse religious rhetoric, the wall has not just been breached, but totally leveled.

One of the arguments used in Town of Greece to argue for the prayer’s illegality was that a City Council is quite different from, say, a State Legislature because of the inherent differences in the ways those bodies do business. Whereas a State Legislature simply meets and deliberates lawmaking, a City Council has tons of direct interaction with townspeople. Thus, Greece’s prayer, they argued, was directed at the entire town instead of just a pseudo-private interaction between individual lawmakers.

While the Supreme Court was not persuaded by that argument legally speaking, I still find it hard to argue against on a right/wrong level. When a City such as Houston has a Christian-themed prayer before an official meeting of its City Council, it inherently says that it is endorsing Christianity to its citizens.

Now, perhaps you would argue that there is nothing wrong with the government endorsing Christianity. Or, more expansively, merely endorsing religion over irreligion. The problem with this is that it goes against the multi-century history of this country. The faux religious influences in public life, such as “In God We Trust” on money or “Under God” in the pledge of allegiance, have not been around since time immemorial. Despite the claims of historical revisionists, both were only added in the 1950s.

Both the church and the state work immensely better when they are separated from one another. When, as Jefferson suggested, a great wall is erected between them, they can both work without outside adulterations. Stopping prayers, especially those of a sectarian nature, from occurring within the walls of City Hall would be great start.

For whatever reason, those advocating for the entanglement of church and state have always resorted to name-calling in order to demonstrate their point. I’ll likely be called Godless or Anti-Religion for espousing these points of view, when, in reality, I am neither. As a Jew, I have never subscribed to the ludicrous point of view that my religion should be thrust upon everyone else. The same should go for the belief in God or of any organized religion whatsoever. It’s an important part of my life, but it should have no place in the seat of government. It just shouldn’t.

I have attended a broad array of parochial schools in my life. St. Regis (Catholic), St. Stephen’s (Episcopalian) and Emery/Weiner (Jewish) come to mind rather immediately. All of those schools combined some element of religious classes with either mass, chapel or Jewish prayer sessions. Growing up, my Mother would often wish to pray before eating, a custom which is still mandatory among functions with my extended family. I never have had, nor do I now, any problem with any of these influences in my life. If I ever have children, I will even likely seek these religious influences out as invaluable facets of the child’s upbringing. But none of them should be in the public square. For, just as easily as my family may have had our specific religious persuasion, other family could have their own. Still others could choose to observe no religious instruction or influence. The beauty of the United States is that we are free to pursue our religious goals ourselves, independent from an encroaching, burdensome government.

As Justice Robert H. Jackson, a devout Anglican, wrote in a 1950s dissent on religious instruction during the school day: “My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided by Caesar.” And as Justice William Brennan said in his famous dissent to Marsh v. Chambers, the aforementioned case from 30 years ago that upheld legislative prayer, “If the Court had struck down legislative prayer today, it would likely have stimulated a furious reaction. But it would also, I am convinced, have invigorated both the ‘spirit of religion’ and the ‘spirit of freedom.'” Here’s for that spirit of freedom!

What’s next for HB2?

The Texas Tribune reported, last Friday, that HB2, the omnibus anti-abortion bill famously filibustered by State Senator Wendy Davis (D-Tarrant County) (who is now the Democratic gubernatorial candidate), has been struck down once more by a Federal Judge. This is somewhat old news, so I want to deal with a few pieces of the puzzle that have not been adequately covered by the mainstream press.

First, this news should ideally sound like deja vu if you have been paying attention. About 10 months ago, the same Federal Judge out of Austin –Judge Lee Yeakel (a George W. Bush nominee)– struck down other parts of the law. That ruling has since been reversed by the Fifth Circuit Court of Appeals, otherwise known as the Federal Appellate Court with jurisdiction over Texas. The most recent action in that case was a request by the law’s opponents for the entire Court, as opposed to a three-Judge panel, to consider the case. This was filed back in April, and is the most recent action taken on the case.

Accordingly, one may be confused as to how two concurrent lawsuits can be going forth on the same law. I’m glad you asked! The law was divided up into four separate provisions. The first and second provisions require inducing drugs to be taken at a clinic and require abortion doctors to have admitting privileges at a nearby hospital, respectively. They took effect on September 1st of last year, and were challenged in the lawsuit from last year. The third provision, which would not have gone into effect until tomorrow, requires all clinics to adhere to the standards of ambulatory surgical centers, universally considered among pertinent professionals to be a wholly unnecessary regulation designed to drive clinics out of business. And, by all counts, it would have been.

The ASC requirement was the one challenged –and ruled unconstitutional– in the most recent court case. The fourth provision, which went into effect last year and bans abortion past the twentieth week, was never challenged.

Now, as long as we’re being realistic, it should be noted that this ruling will likely be stayed by the Fifth Circuit, much the way the previous one was. At some point in the future, the Fifth Circuit will fully overturn it. A little further down the line from that, the Supreme Court will step in, and likely consolidate the two cases, then make a ruling. It’s really anyone’s guess at that point.

As I have stated in the past, if the Supreme Court were to truly examine all the pertinent precedent in this case, the law would indubitably be going down in flames. But that simply is not a given anymore.

Abbott, Davis on the death penalty

The Houston Chronicle reports that new questions have arisen in the Texas gubernatorial election over the continued use of the death penalty in the State. Attorney General Greg Abbott, the Republican candidate, has slammed State Senator Wendy Davis (D-Tarrant County), the Democratic candidate, for allegedly too liberal views on capital punishment.

Specifically, Abbott points to a move Davis made in 2000, while a member of the Fort Worth City Council, to support a non-binding resolution urging a moratorium on the death penalty. When reached for comment, Davis reiterated her support for the positions that she espoused at the time, but noted that her concerns have all been mollified. Among them were concerns over innocence with the introduction of DNA testing, as well as opposition to executing those who committed their crimes as juveniles and the developmentally disabled. Since that time, to Davis’ credit, much as changed. The Supreme Court ruled on a series of landmark decisions —Atkins v. Virginia in 2002 and Roper v. Simmons in 2005– that prohibited the execution of those two respective categories of offenders. Furthermore, even Texas has made strides in recent sessions to mitigate the damage done by wrongful imprisonment. The Michael Morton Act, passed last year by the Legislature, is the obvious recent example.

Back to Abbott, he has harshly derided Davis for allegedly being somewhat “soft-on-crime” and an overall opponent of the death penalty. Davis, for her part, has fired back by claiming that she is –and always has been– a steadfast supporter of capital punishment, and would gleefully preside over it if elected Governor. In fact, she even touted her record voting for an expansion of the penalty –making it applicable to those who murder young children.

Another one of Abbott’s talking points is that the Texas Democratic Party, in its official platform, calls for the abolition of the death penalty. This much is true, but Abbott of all people should know the dangers of making such a claim. The Texas Republican Party’s platform is seriously riddled with heinous provisions, such as the endorsement of gay repair therapy, or urging the “rescinding of no-fault divorce.” In fact, last year at the Tribune festival, I pointedly asked Abbott if he supported repealing the entirety of the Voting Rights Act of 1965, as his party’s platform supported. He said no. There’s nothing wrong with Abbott disagreeing with the crazy points in his platform, but that means there is also nothing wrong with Davis disagreeing with her party’s platform too.

I think the greater point here is over a severe political issue, and Davis’ reluctance to stand against a truly awful travesty. There is something to be said about not running too far to the left in a State as conservative as Texas, but not with this issue. Most people do not really care about the issue enough for it to be a wedge. If one is truly a zealous death penalty proponent, there are likely other confounding variables that would keep the individual far, far away from the Democratic Party (racism, for one).

The death penalty is immoral in every circumstance. Killing someone who is not presenting a danger to you (physical or existential) is wrong…that’s it. Hopefully, Davis can recognize that. Unlike every other domestic political issue, this involves life and death.

The 2013 term closes

I’ve been debating for a while how best to broach this topic, given the plethora of landmark Supreme Court cases that have occurred in the last few weeks. I have decided that it would be best to discuss them all in one lengthy article. Simply put, this has been the worst Supreme Court term in recent memory. Search & Seizure and the Establishment Clause may as well not exist given the extent to which they were ignored. Campaign Finance reform was eviscerated, as Union rights were squished and a painfully asinine concept was propped up on the Hobby Lobby case. Still, there were some glimmers of hope. The decision in Riley v. California, in which the court unanimously ruled that the police need a warrant to look through one’s smartphone, was a particularly sagacious determination.

The Court, under the stewardship of Chief Justice John Roberts, has desperately sought out the middle-ground on controversial issues. Associate Justice Anthony Kennedy, the closest thing to a swing-vote on the Court, also wishes to convey this message; indeed, Roberts and Kennedy are the only Justices who vote in the majority upwards of 90%!

The problem is, the Supreme Court is supreme for a reason. If the nine sneeze, the country catches a cold. Judicial restraint might make for good sound bites for Justice Antonin Scalia’s keynote at the Heritage Foundation, but it simply does not work in practice. Ironically enough, the person who best understands that is probably Scalia himself, who penned the dissent last year in United States v. Windsor, which struck down part of the Defense of Marriage Act. Kennedy had sought to implement a very gradual implementation of gay marriage, which I noted about a year ago. Scalia, for his part, could see the handwriting on the wall and castigated the majority for not being upfront about their intentions. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.

Wow, was that prophetic. Just like he said, a scurry of lawsuits were immediately filed following the decision, and starting in December, the dominoes began falling one by one. Utah. Oklahoma. Virginia. TEXAS! And ten others. All in all, in the over dozen Federal District Court decisions voiding State-level bans on gay marriage, all of them cited Kennedy’s decision and some even Scalia’s dissent. All 50 states either already have gay marriage or a Federal lawsuit against the banning of said gay marriages. Kennedy’s narrow, limited-scope decision was no more.

Thus, when I hear some of those same Justices (e.g., Kennedy) prop up just how “narrow” their ruling is, I am naturally skeptical. Actually, skeptical is too light of a word; I am particularly doubtful. Each and every one of these major rulings, with the exception of the aforementioned Riley, has some troubling greater implications, even if I perhaps agree with the underlying judgment. Yet another problem I have with the Roberts Court is that it is rather unimaginative. All too often, the Court appears certain to pick one of two sides: the exact position proscribed by the plaintiffs, and that by the respondents. The beauty of our judicial system is that, to borrow a nerdy cliche, it encourages the Justices to “choose their own adventure,” thus coming up with new and imaginative ways to solve problems.

Indeed, arguably the most famous case in Supreme Court history consisted of such a compromise. The case of Marbury v. Madison, which first established the premise of judicial review, saw a functionally unanimous court reject the arguments of both sides, and reach their conclusion using yet another point of view. Unfortunately, this type of conclusion has become rarer in recent terms. The case of NFIB v. Sebilius, where the Court largely upheld Obamacare, comes to mind, but few others do.

First and foremost, harkening back to my point about narrow rulings and how they never turn out that way, there is the case of Burwell v. Hobby Lobby (Editor’s note: This case was previously called “Sebilius v. Hobby Lobby” but was updated to reflect the name of the new Secretary of Health and Human Services).

Hobby Lobby did not necessarily have a categorical opposition to contraception, just a couple forms such as Plan B (the morning-after pill) and Intrauterine Devices. For whatever reason, Hobby Lobby believes these forms of contraception cause abortion, thus they believe that they are indirectly funding and condoning the termination of pregnancies. Of course, the trouble with all this is that Plan B and IUDs are not abortifacients, they simply are not. I wrote a somewhat lengthy piece on all this back in March.

The reasoning employed by the Court’s five-person majority (lead by Justice Alito and joined by the other four all male conservative Justices) went as follows. While the 1st Amendment was somewhat specific in that it only prohibits those laws that “prohibit the free exercise” of religion, there is some statutory language that is even more broad. The Religious Freedom Restoration Act, passed in 1993, goes out of its way to say that the government may not “substantially burden a person’s exercise of religion” without a “compelling government interest,” and that furthermore, it must be the “least restrictive way of furthering that interest.”

The court found that requiring for-profit corporations to provide birth control, really in any capacity and not just alleged abortifacients, denoted a substantial burden. Furthermore, while the Court noted that there was the obligatory compelling interest in mandating contraception, they ruled that mandating employer-coverage was not the “least restrictive way.” Instead, the court suggested the government pay for the contraception, or a compromise is reached allowing the insurance provider to personally pay using solely out-of-pocket deductibles and co-payments from the employee. Of course, the immediate effect is not that any of this happens, merely that female employees of Hobby Lobby are out on their own.

There are a number of problems with this ruling, irrespective of the obvious factual inconsistencies. The biggest one, in my opinion, is that the court is still not clear about the legal role of a corporation. The majority stipulated that the RFRA applied to corporations, something that Justice Ginsburg strongly disagreed therewith in her dissent, though they just talked about the religious beliefs of the owners.

Yes, Hobby Lobby has a blurb in their declaration of principles about being run by Christian values, but those are just the words of agents of the corporation, not the corporation itself. I’m still at a loss to figure out how we know Hobby Lobby’s religious values are anathema to this mandate, all we know is that the owners disagree.

Corporate personhood has long existed as a legal fiction to limit liability from the owners. If the proprietor runs the business into the ground, he or she cannot be held personally financially responsible. If your bank accounts are not one in the same, it seems to me that your religious beliefs shouldn’t be either. Ironically enough, Hobby Lobby’s victory was that it was not seen as enough of a person. Granted, there are many intelligent people who disagree with me, and the Washington Post has a rather learned account of why corporations should have rights under the RFRA.

Stipulating the fact brouhaha and the corporate personhood dispute, I begin to see the conclusion that the majority reached. The only problem is that all of this posturing ignores the most important issue: What is the deal with this overbearing law that tangles in religious matters?

In the 1997 case of City of Boerne v. Flores, Justice John Paul Stevens argued in a lone opinion that RFRA is unconstitutional because it violates the Establishment Clause, “Congress shall make no law respecting an establishment of religion.” This is because it gives preference to religion over irreligion, something expressly forbidden by the Supreme Court in the 1985 case of Wallace v. Jaffree. A longer discussion on this topic is covered by the Washington Post, which also includes Justice Stevens’ opinion in full.

Then, there are the long term implications of everything. Already, the Court has granted an injunction to a non-profit opposed to ALL forms of contraception. It looks like the contraception mandate is lost, we just don’t know it yet. Fortunately, since the Court interpreted legislation and not the constitution, a simple vote of Congress could override this decision. Granted, the next time that is possible, I would recommend scrapping the unholy trainwreck that is Obamacare and replacing it with something effective like a single-payer system, where all this noise over employers would be non-issue.

Texas Leftist has more on that topic, specifically from a pertinent Chicago Tribune article on the subject. Furthermore, he highlights a recent tweet by Attorney General Greg Abbott, the Republican nominee for Governor, that lauds the ruling as “protecting life.” Does he think that contraception is wrong, or that it is tantamount to abortion? Deep down, the answer is obviously no. Abbott is not an idiot, but the fact that would grandstand to such extremes does make me worry.

Granted, the Texas Republican Party’s platform does not call for the criminalization of birth control, but it does strongly support entities such as Hobby Lobby, as well as oppose any mention of the pill in classrooms as well as making Plan B illegal. It will be interesting to see if this becomes a flashpoint in the gubernatorial election. State Senator Wendy Davis (D-Tarrant County), the Democratic nominee for Governor, lambasted the opinion, calling it “disappointing,” so reports the Dallas Morning News.

Harris v. Quinn, the ruling affecting Unions, is another 5-4 opinion, crafted meticulously narrow. However, like Hobby Lobby, this could easily be expanded to startling lengths.

In the case, eight family members of elderly Medicaid patients began receiving funds for services in the field of home healthcare. As such, the SEIU attempted to compel them to pay union dues, given that they were receiving union benefits. The same 5 person majority of conservative Justices, once again led by Justice Alito, noted that these contractors were “quasi-public” employees, rather than full-fledged public employees. Thus, the Court ruled that they should not be compelled to pay the union dues.

The only problem with this, of course, is that they receive union benefits. Overtime, higher salaries, benefits, all of which point directly back to their local chapter of the Service Employees International Union. Not being forced to pay dues creates a free rider problem, where no one will want to pay for the benefit, because, in the simplest terms, it still exists even if you don’t personally pay. The problem with this, obviously, is that if no one pays, the benefits go away.

Abood v. Board of Education, a 1977 case where the Court unanimously upheld the constitutionality of these mandatory dues in public employment, has long been the controlling case on the matter. Writing for herself and the three other liberal Justices, Justice Elena Kagan heavily relied upon Abood as a reason to declare these beneficiaries of public sector unions beholden to their mandatory fees.

Justice Alito, meanwhile, humored in his dicta the idea that Abood was erroneously decided, but the Court took no action on the case. Once again, expect a flurry of lower court decisions opining on the merits of mandatory union dues.

Republicans, unsurprisingly, are giddy at this, because without mandatory dues, Unions fall apart financially. Without unions, the Democratic Party falls apart financially. Lovely, isn’t it?

Editor’s note: I will expand upon this article later today, specifically with regard to McCutcheon, Fernandez, Riley, Town of Greece
and McCullen.

Fifth Circuit stays Campbell execution

The New York Times reports that the Fifth Circuit Court of Appeals has stayed the execution of Robert Campbell, which was scheduled for this evening. As I wrote extensively over the weekend, Campbell’s case represents two distinct quandaries. First, the execution would be the first to occur following the horrendous butchery that occurred a couple of weeks ago in Oklahoma. Second, Campbell’s IQ is 69, below the line commonly designated for mental retardation. This is significant because the US Supreme Court ruled in 2002 (Atkins v. Virginia) that those will severe intellectual deficiencies may not legally be put to death.

The Federal Appeals Court declined to issue any sort of stay as a result of what I have called the “secret execution drugs.” This issue hails from the fact that the State of Texas recently started obtaining its death drug, pentobarbital, from secret compounding pharmacies, details of which have not even been disclosed to the attorneys of the condemned. Texas has, in all fairness, undergone two of these executions without a hitch. That being said, the issue over the condemned man’s mental faculties struck a chord with the Court.

Click here to read the full analysis!