The Republicans “modify” the U.S. judicial system
27 October 2019 (Cologne, Germany) – When I was at the Athens Democracy Forum I found myself in numerous discussions with attendees about the U.S. legal system : decades of political gridlock, electoral corruption, and dysfunction in the U.S. system of “government”. The U.S. promotes “democracy” and “transparency” yet is the poster child for stalemate, minority rule, and executive abuse.
I tried to explain, as I have said in numerous blog posts, that America has long laid waste to its principles of “democracy” as chronicled by event after event after event in its history. America has never been a democracy. Americans forget their long history of nativism, authoritarianism, misogyny, and racism. Trump and his enablers are merely renewing the triumph of that history – and confounding James Madison (principal architect of the Constitution) and the other “Founding Fathers” who had tried to design a government that would resist mob rule. But they did not/could not anticipate how strong the mob could become. As I noted in Part 1, over the summer I reread The Federalist Papers and one series from Madison jumped out at me. He was referring to impetuous mobs as factions and said:
how do we guard against factions in government, united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. Factions arise when public opinion forms and spreads quickly and can only dissolve if the public is given time and space to consider long-term interests rather than short-term gratification.
Madison also did not figure on all of the branches of the government forming as one mob, enabling each other as they wished.
And it all came home again last week at an e-discovery event to which one of my staffers attended. She heard several times words to this effect:
Our legal system has an incredible immune system. We’re not Russia. We’ve been a democracy for hundreds of years, with a legal system that grew up in England to foil the King. That’s why we have an independent judiciary. Believe me, bar cards will be lost.
Granted, a legal technology event is not the place to discuss “law” or “judicial systems”. These people practice not law. Their task is to work for (or against, depending on the client) Corporate America/Corporate EMEA/Corpotate Asia – its commercial interests/transactions be it transactional or investigative. In the U.S., it is an industry divorced from the reality of what is happening in American law and American politics. As told to me by one much-esteemed magistrate judge who laid down some of the definitive rules in e-discovery:
“Rule #1 of the rules of Federal civil procedure is to make the process speedy and inexpensive”.
And he’s correct. It’s all about the money. Because politics and “real life”, as one prominent member of the e-discovery ecosystem told me, “are bad for business in our industry”. Well, except for one glaring exception:
One of my staffers went through the last 2-and-1/2 years of legal technology events and poor Hillary’s emails featured in at least 22 conference presentations of webinars. Discussions of political corruption or executive abuse? No. Doesn’t fit the program. But Hillary? Perfect. Because it was used to sell the horrors of Shadow IT, bring-your-own-device rules … and the need for information governance (step right over here and meet the vendors).
But to be fair, the e-discovery lawyer’s statement above about the “immune system” is a naiveté voiced by many lawyers across all social media. And highlights the greatest threat to the U.S. legal system. Because the protection of that system depends on people supporting their values and pushing back when people try to undermine the system. If people just shrug their shoulders and say “oh, it’s fine; the system will look after itself”, that is exactly when they will find that it does not.
No political “system” functions by itself. It’s only as good as the people running it, protecting it. And if a lot of people give up on democratic values, any democracy can crumble. But then again, no democracy or republic, in the short history of man, has ever survived. So why should the U.S.?
And, yes. You are battling an entrenched kakistocracy. Republicans play hardball and are gleefully remaking the judiciary for an entire generation, maybe two generations. Democrats are bringing knives to a gun fight. They still don’t know what they’re up against. They do not understand the incredible power of modern propaganda coupled with tribalism. Look how many people … mostly the Republican base … believe there are “insidious forces” working against them. The U.S. is losing its judiciary because none of the checks are holding. The U.S. Attorney General … ostensibly the head of the American legal system .. got away with (almost) completely lying about the contents of the Mueller report and is now traveling around the world pushing conspiracy theories with pretty much no pushback, opening investigations into political opponents of his Führer. The DOJ is even joining civil suits in state courts in the most partisan manner.
This is a step, a new phase. They are moving from covering up their previous abuses to targeting potential threats to intimidate and discredit them, a new category of abuses. It is a brilliant strategy. The prosecution is itself the primary goal since it energizes the cult base and deters future investigations/whistleblowers – lest they be the focus of MAGA death threats and burdened with legal fees as scores of stories have detailed.
END NOTE
The end result is everybody is just getting used to the boiling water, that the gradual normalization of Trump’s destructive behavior has merely been metastasized in our collective political culture. In my darkest moments, I believe it’s too late – it’s already in our bones.
The very presence of Trump occupying the Oval Office has permanently broadened the state of play for the presidency – broadened the degree of latitude the President now possesses to paint outside the previous lines. Presidents and presidential candidates are now at greater liberty to exhibit behavior that would heretofore have been punished with rejection and exile from the ranks of seriousness and normalcy. Whether we like it or not, Trump has written new rules for the presidency by exploiting loopholes in the system, a system that’s built on the rule of law, traditional norms and constitutional strictures.
Trump has hurled his ponderous bulk through wall after wall, Kool-Aid Man style, and once he leaves office, it’ll be up to the U.S. politic to determine if they want to repair those Trump-shaped holes. But, unfortunately, to do that, you’d need to fight to throw off the normalization of Trumpism now, even as it calcifies.
Yes, it’s nearly impossible for us to fully absorb each travesty as it whizzes past our faces at ludicrous speed. Prioritizing and focusing upon what Trump does over what he merely says is always a smart idea, just as long as we never regard his tweets and obnoxious blurts as being irrelevant or normal. The President’s words matter, too. Yet at this point, regulating how the President talks is more a societal adjustment than a legislative one.
No, the Democrats are no angels but clearly, as Jeff Tobin noted in his blog this weekend, “the Republican side has popularized a brand of nincompoopery allowing anyone with a Q-score and a sack full of opinions to be automatically endowed with presidential stature”.
I don’t know. I’m 68 years old and I have seen a lot. At some point, respect for the office of President receded and many of us began to believe the false propaganda, much of it also emerging after Watergate, that the presidency is something anyone can do rather than a critical leadership post reserved for men and women who have earned the right and the restraint to wield the kind of power Trump and his sycophants wield.
George Carlin once observed that selfish, ignorant politicians are a direct consequence of selfish, ignorant citizens. His observation was fulfilled on Nov. 8, 2016, and it’s slowly tightening its grip on America’s future (well, maybe all our futures) unless somebody says “ok, let’s cut the crap” and, finally, break the cycle.
