Elections, Courts and the Judiciary

Subterms

    Latest story

    113 Shares99 Views

    O’Connor’s Most Vital Work Was After She Stepped Down

    by

    You can tell a lot about a person by what he or she regrets. This holds especially for Supreme Court justices, whose decisions can, with a single vote, upend individual lives and alter the course of history. Justice Lewis F. Powell Jr. said he probably made a mistake in upholding a law criminalizing gay sex; Justice Harry Blackmun was sorry he ever voted to impose the death penalty.Justice Sandra Day O’Connor, who died on Friday at the age of 93, expressed regret publicly over one vote she cast: in the case of Republican Party of Minnesota v. White, a 2002 ruling that judicial candidates could not be prohibited from expressing their views on disputed legal and political issues. Minnesota, like many states that elect judges, had imposed such a ban in order to preserve the appearance of judicial impartiality. The court rejected the ban for violating the First Amendment. The decision was 5 to 4, with Justice O’Connor joining the majority.The court’s ruling led to an explosion of partisan spending on judicial elections around the country and judicial candidates freely spouting their predetermined views on the very issues they would be entrusted to decide if elected.There are many ways to remember Justice O’Connor — as the first woman on the Supreme Court, as one of the justices who saved Roe v. Wade 30 years ago, as the author of the landmark decision protecting affirmative action in 2003. As impressive as those achievements were, they have mostly been surpassed or reversed. What stands out for me is what she said and did after leaving the court.Her response to the 2002 ruling would define most of her last years and underline her commitment to American democracy not just in the halls of justice but also on the ground. It was as if she could see what was coming as the judiciary grew ever more politicized, and she devoted much of her postcourt public life to combating that trend.In March 2006, only weeks after she stepped down, she gave a speech calling out Republican lawmakers for attacking the judiciary. She highlighted the comment by Senator John Cornyn of Texas that deadly violence against judges might be related to their rulings.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

    More stories

    • 125 Shares189 Views

      in Elections

      Elise Stefanik Files Ethics Complaint Against Trump Fraud Trial Judge

      by

      Justice Arthur Engoron imposed a narrow gag order on Donald Trump. Right-wing allies are going after the judge on his behalf, through official channels and online.Representative Elise Stefanik, a member of the House Republican leadership and an ally of former President Donald J. Trump, filed an ethics complaint Friday attacking the judge presiding over Mr. Trump’s civil fraud trial, the latest salvo in a right-wing war against the case.Echoing the courtroom rhetoric of Mr. Trump’s lawyers, the letter complains that the Democratic judge, Arthur F. Engoron, has been biased against the former president, who testified this week in New York State Supreme Court. The New York attorney general, Letitia James, has accused Mr. Trump of fraudulent business practices, and in a pretrial ruling Justice Engoron agreed, validating the heart of her case.The letter, to a judicial conduct commission, is unlikely to have any immediate repercussions in the trial, which will determine the consequences Mr. Trump and his company will face as a result of the fraud. But it represents the latest Republican attempt to tar Justice Engoron, and to meddle with Ms. James’s case. The judge has placed narrow gag orders on both the former president and his lawyers, but nothing bars Mr. Trump’s allies from their criticism.They have taken up the effort with gusto.“I filed an official judicial complaint against Judge Arthur Engoron for his inappropriate bias and judicial intemperance in New York’s disgraceful lawsuit against President Donald J. Trump and the Trump Organization,” Ms. Stefanik said in a statement Friday.“Judge Engoron’s actions and rulings in this matter are all part of the public record and speak for themselves,” Al Baker, a spokesman for the New York court system, said in an email. “It is inappropriate to comment further.”Robert H. Tembeckjian, the administrator of the state commission on judicial misconduct, noted in a statement that all matters before the body are confidential unless a judge is found to have committed misconduct and a decision is issued.Mr. Trump, 77, has repeatedly implored his allies to fight on his behalf. And Ms. Stefanik, who has close ties to Mr. Trump’s team, has portrayed herself as one of his chief defenders, thrusting herself into the former president’s controversies dating back to the first impeachment he faced while president.The civil fraud trial, which is separate from the four criminal cases against Mr. Trump, began early last month and is at its halfway point. After the former president and his daughter, Ivanka, testified this week, the attorney general’s office rested its case, which accuses Mr. Trump and his company of filling annual financial statements with fraudulent asset values in order to receive favorable treatment from banks and insurers. The defense case will start on Monday, with Donald Trump Jr. scheduled to return to the stand, and is expected to last into December.Justice Engoron, 74, has not responded to the attacks outside the courtroom, though at one point this week he lost his temper when a lawyer for Mr. Trump, Christopher M. Kise, suggested, as he has throughout the trial, that the judge had been biased.“I object now, and I continue to object, to your constant insinuations that I have some sort of double standard here. That is just not true,” the judge said, adding, “I just make the rulings as I see them. You know, like the umpire says, call them as I see them.”Representative Elise Stefanik of New York has become one of the former president’s paladins, vociferously attacking those he sees as enemies. Kenny Holston/The New York TimesStatements like those are unlikely to satisfy Mr. Trump’s allies, and Ms. Stefanik’s attack is just one of many hurled at the judge this week. Laura Loomer, a far-right activist whom Mr. Trump considered hiring to work on his third presidential campaign and has since praised, has targeted the judge and his family in numerous social media posts. Commentators on Fox News and elsewhere in right-wing media have attacked him for shirtless photos that appeared in an alumni newsletter.Ms. Stefanik and others have also attacked the judge’s principal law clerk, Allison Greenfield, who has experience as a trial attorney and whom the judge consults during proceedings when considering rules of evidence and other trial matters.Mr. Trump attacked Ms. Greenfield on the second day of the trial, saying that she was a partisan and was running the case against him. Justice Engoron placed a gag order on the former president barring him from discussing the court staff; Mr. Trump has twice violated that order, incurring $15,000 in fines.After the former president was barred from speaking about Ms. Greenfield, his lawyers took up the cause, continuing to complain about the judge’s practice of consulting her during the trial. Justice Engoron barred the lawyers from commenting on his private communications with Ms. Greenfield. He expressed concern about the safety of his staff and noted that his office had received “hundreds of harassing and threatening phone calls, voicemails, emails, letters and packages.”Republican critics have taken particular issue with donations that Ms. Greenfield, who is also a Democrat, has made over the past several years, accusing her of violating rules governing the conduct of judicial staff members. But Ms. Greenfield has been campaigning for a judgeship and New York’s judicial ethics rules allow candidates to make certain donations, such as purchasing tickets to political functions.Mr. Trump’s congressional allies have taken on a number of the law enforcement officials who have brought cases against the former president. After the former president was criminally indicted in Manhattan in March, Representative Jim Jordan, who has worked closely with Mr. Trump, demanded information about the case from the prosecutor, the Manhattan district attorney, Alvin L. Bragg. Mr. Jordan also subpoenaed Mark F. Pomerantz, a prosecutor who had worked on the criminal case, compelling Mr. Pomerantz to testify in a closed-door congressional session.Mr. Jordan has also said he would investigate a Georgia prosecutor who also indicted Mr. Trump, accusing him of interfering with the 2020 election results in the state. The prosecutor, Fani Willis, fired back, writing in a letter that Mr. Jordan’s “attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution.” More

    • 75 Shares159 Views

      in Elections

      How Affirmative Action Changed Their Lives

      by

      Stella Tan, Sydney Harper, Asthaa Chaturvedi and Liz O. Baylen, Lisa Chow and Marion Lozano, Dan Powell and Alyssa Moxley and Listen and follow The DailyApple Podcasts | Spotify | Stitcher | Amazon MusicTwo weeks ago, the United States Supreme Court struck down affirmative action, declaring that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful.Today, three people whose lives were changed by affirmative action discuss the complicated feelings they have about the policy.On today’s episodeSabrina Tavernise, a co-host of The Daily.Opponents of the ruling marching this month in Cambridge, Mass.Kayana Szymczak for The New York TimesBackground readingFor many of the Black, Hispanic and Native Americans whose lives were shaped by affirmative action, the moment has prompted a personal reckoning with its legacy.In earlier decisions, the court had endorsed taking account of race as one factor among many to promote educational diversity.There are a lot of ways to listen to The Daily. Here’s how.We aim to make transcripts available the next workday after an episode’s publication. You can find them at the top of the page.Sabrina Tavernise More

    • 100 Shares99 Views

      in Elections

      What Happens if a Presidential Candidate Is Convicted?

      by

      The Constitution and American law have clear answers for only some of the questions that would arise. Others would bring the country into truly uncharted territory.Not since Eugene V. Debs campaigned from a prison cell more than a century ago has the United States experienced what might now happen: a prominent candidate with a felony conviction running for president. And never before has that candidate been someone with a real chance of winning.Former President Donald J. Trump faces no campaign restrictions. Though he has been charged with dozens of felonies across two cases, one federal and one in New York, verdicts are a long way off. And there are many uncertainties, including whether the proceedings will hinder Mr. Trump’s campaign in practical ways or begin to hurt him in the polls in a way they have not so far.But if he is convicted on any of the felony counts, things get more complicated — and the Constitution and American law have clear answers for only some of the questions that would arise.Others would bring the country into truly uncharted territory, with huge decisions resting in the hands of federal judges.Here is what we know, and what we don’t know.Can Trump run if he is convicted?This is the simplest question of the bunch. The answer is yes.The Constitution sets very few eligibility requirements for presidents. They must be at least 35 years old, be “natural born” citizens and have lived in the United States for at least 14 years.There are no limitations based on character or criminal record. (While some states prohibit felons from running for state and local office, these laws do not apply to federal offices.) Would his campaign be restricted?To offer an obvious understatement, it would be logistically difficult to run for president from prison. No major-party candidate has ever done it. Mr. Debs ran for the Socialist Party in 1920 and received about 3 percent of the vote.But Mr. Trump’s campaign staff could handle fund-raising and other campaign activities in his absence, and it is very unlikely that Mr. Trump could be disqualified from appearing on ballots.The Republican and Democratic Parties have guaranteed spots on general-election ballots in every state, and the parties tell election officials whose name to put in their spot. States could, in theory, try to keep Mr. Trump off the ballot by passing legislation requiring a clean criminal record, but this would be on legally shaky ground.“We let states set the time, place and manner” of elections, said Jessica Levinson, a professor at Loyola Law School who specializes in election law, “but I think the best reading of our Constitution is you don’t let the state add new substantive requirements.”While that view is not universal among legal experts, it won in court in 2019, when California tried to require candidates to release their tax returns in order to appear on primary ballots. A federal district judge blocked the rule, saying it was most likely unconstitutional. The California Supreme Court also unanimously blocked it as a violation of the state constitution, and the case never reached the U.S. Supreme Court.Could he vote?Probably not.Mr. Trump is registered to vote in Florida, and he would be disenfranchised there if convicted of a felony.Most felons in Florida regain voting rights after completing their full sentence, including parole or probation, and paying all fines and fees. But it is highly unlikely that Mr. Trump, if convicted, would have time to complete his sentence before Election Day.Since Mr. Trump also has a residence in New York, he could switch his voter registration there to take advantage of its more permissive approach: Felons in New York can vote while on parole or probation. But, as in Florida and almost every other state, they are still disenfranchised while in prison.So if Mr. Trump is imprisoned, he will be in the extraordinary position of being deemed fit to be voted for, but unfit to vote.What happens if he is elected from prison?No one knows.“We’re so far removed from anything that’s ever happened,” said Erwin Chemerinsky, a constitutional law expert at the University of California, Berkeley. “It’s just guessing.”Legally, Mr. Trump would remain eligible to be president even if he were imprisoned. The Constitution says nothing to the contrary. “I don’t think that the framers ever thought we were going to be in this situation,” Professor Levinson said.In practice, the election of an incarcerated president would create a legal crisis that would almost certainly need to be resolved by the courts.In theory, Mr. Trump could be stripped of his authority under the 25th Amendment, which provides a process to transfer authority to the vice president if the president is “unable to discharge the powers and duties of his office.” But that would require the vice president and a majority of the cabinet to declare Mr. Trump unable to fulfill his duties, a remote prospect given that these would be loyalists appointed by Mr. Trump himself.More likely, Mr. Trump could sue to be released on the basis that his imprisonment was preventing him from fulfilling his constitutional obligations as president. Such a case would probably focus on the separation of powers, with Mr. Trump’s lawyers arguing that keeping a duly elected president in prison would be an infringement by the judicial branch on the operations of the executive branch.He could also try to pardon himself — or to commute his sentence, leaving his conviction in place but ending his imprisonment. Either action would be an extraordinary assertion of presidential power, and the Supreme Court would be the final arbiter of whether a “self pardon” was constitutional.Or President Biden, on his way out the door, could pardon Mr. Trump on the basis that “the people have spoken and I need to pardon him so he can govern,” Professor Chemerinsky said.What if he’s elected with a case still in progress?Again, no one knows. But a likely outcome would be that a Trump-appointed attorney general would withdraw the charges and end the case.The Justice Department does not indict sitting presidents, a policy outlined in a 1973 memo, during the Nixon era. It has never had reason to develop a policy on what to do with an incoming president who has already been indicted. But the rationale for not indicting sitting presidents — that it would interfere with their ability to perform their duties — applies just as well in this hypothetical scenario.“The reasons why we wouldn’t want to indict a sitting president are the reasons we wouldn’t want to prosecute a sitting president,” said Professor Chemerinsky, who has disagreed with the department’s reasoning. “My guess is, if the Trump prosecution were still ongoing in some way and Trump were elected, the Justice Department — which would be the Trump Justice Department — would say, ‘We’re following the 1973 memo.’”Like so much else here, this would be legally untested, and it is impossible to say what the Supreme Court would do if the question reached it.In its Clinton v. Jones ruling in 1997, the court allowed a lawsuit against President Bill Clinton to proceed. But that case was civil, not criminal, and it was filed by a private citizen, not by the government itself.Charlie Savage More

    • 113 Shares129 Views

      in Elections

      North Carolina Gerrymander Ruling Reflects Politicization of Judiciary Nationally

      by

      When it had a Democratic majority last year, the North Carolina Supreme Court voided the state’s legislative and congressional maps as illegal gerrymanders. Now the court has a Republican majority, and says the opposite.Last year, Democratic justices on the North Carolina Supreme Court ruled that maps of the state’s legislative and congressional districts drawn to give Republicans lopsided majorities were illegal gerrymanders. On Friday, the same court led by a newly elected Republican majority looked at the same facts, reversed itself and said it had no authority to act.The practical effect is to enable the Republican-controlled General Assembly to scrap the court-ordered State House, Senate and congressional district boundaries that were used in elections last November, and draw new maps skewed in Republicans’ favor for elections in 2024. The 5-to-2 ruling fell along party lines, reflecting the takeover of the court by Republican justices in partisan elections last November.The decision has major implications not just for the state legislature, where the G.O.P. is barely clinging to the supermajority status that makes its decisions veto-proof, but for the U.S. House, where a new North Carolina map could add at least three Republican seats in 2024 to what is now a razor-thin Republican majority. Overturning such a recent ruling by the court was a highly unusual move, particularly on a pivotal constitutional issue in which none of the facts had changed.The North Carolina case mirrors a national trend in which states that elect their judges — Ohio, Kentucky, Kansas, Wisconsin, Pennsylvania and others — have seen races for their high court seats turned into multimillion-dollar political battles, and their justices’ rulings viewed through a deeply partisan lens.Such political jockeying once was limited mostly to confirmation fights over seats on the U.S. Supreme Court. But as the nation’s partisan divide has deepened, and the federal courts have offloaded questions about issues like abortion and affirmative action to the states, choosing who will decide state legal battles has increasingly become an openly political fight.The new Republican majority of justices said the North Carolina Supreme Court had no authority to strike down partisan maps that the General Assembly had drawn.“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text,” Chief Justice Paul Newby wrote for the majority. “Were this court to create such a limitation, there is no judicially discoverable or manageable standard for adjudicating such claims.”Justice Newby said that Democrats who led the previous court had claimed to have developed a standard for deciding when a political map was overly partisan, but that it was “riddled with policy choices” and overstepped the State Constitution’s grant of redistricting powers to the legislature.Legal scholars said the ruling also seemed likely to derail a potentially momentous case now before the U.S. Supreme Court involving the same maps. In that case, Moore v. Harper, leaders of the Republican-run legislature have argued that the U.S. Constitution gives state lawmakers the sole authority to set rules for state elections and political maps, and that state courts have no role in overseeing them.Now that the North Carolina Supreme Court has sided with the legislature and thrown out its predecessor’s ruling, there appears to be no dispute for the federal justices to decide, the scholars said.The ruling drew a furious dissent from one of the elected Democratic justices, Anita S. Earls, who said that it was pervaded by “lawlessness.” She accused the majority of making specious legal arguments, and at times using misleading statistics, to make a false case that partisan gerrymandering was beyond its jurisdiction.“The majority ignores the uncontested truths about the intentions behind partisan gerrymandering and erects an unconvincing facade that only parrots democratic values in an attempt to defend its decision, ” she wrote. “These efforts to downplay the practice do not erase its consequences and the public will not be gaslighted.”Some legal experts said the ruling underscored a trend in state courts that elect their justices, in which decisions in politically charged cases increasingly align with the ideological views of whichever party holds the majority on the court, sometimes regardless of legal precedent.“If you think the earlier State Supreme Court was wrong, we have mechanisms to change that, like a constitutional amendment,” Joshua A. Douglas, a scholar on state constitutions at the University of Kentucky College of Law, said in an interview. “But changing judges shouldn’t cause such a sea change in the rule of law, because if that’s the case, precedent has no value any longer, and judges really are politicians.”The state court also handed down two more rulings in politically charged cases, overturning decisions that favored voting-rights advocates and their Democratic supporters.In the first, the justices reconsidered and reversed a ruling by the previous court, again along party lines, that a voter ID law passed by the Republican majority in the legislature violated the equal protection clause in the State Constitution.In the second, the justices said a lower court “misapplied the law and overlooked facts crucial to its ruling” when it struck down a state law denying voting rights to people who had completed prison sentences on felony charges but were not yet released from parole, probation or other court restrictions.The lower court had said that the state law was rooted in an earlier law written to deny voting rights to African Americans, a conclusion that the Supreme Court justices said was mistaken.The new ruling undid a decision that had restored voting rights to more than 55,000 North Carolinians who had completed prison sentences. Those rights are now revoked, lawyers said, although the status of former felons who had already registered or voted under the previous ruling appeared unclear.The ruling on Friday in the gerrymander case, now known as Harper v. Hall, came after partisan elections for two Supreme Court seats in November shifted the seven-member court’s political balance to 5-to-2 Republican, from 4-to-3 Democratic.The Democratic-controlled court ruled along party lines in February 2022 that both the state legislative maps and the congressional district maps approved by the Republican legislature violated the State Constitution’s guarantees of free speech, free elections, free assembly and equal protection.A lower court later redrew the congressional map to be used in the November elections, but a dispute over the State Senate map, which G.O.P. leaders had redrawn, bubbled back to the State Supreme Court last winter. In one of its last acts, the Democratic majority on the court threw out the G.O.P.’s State Senate map, ordering that it be redrawn again. The court then reaffirmed its earlier order in a lengthy opinion.Ordinarily, that might have ended the matter. But after the new Republican majority was elected to the court, G.O.P. legislative leaders demanded that the justices rehear not just the argument over the redrawn Senate map, but the entire case.The ruling on Friday came after a brief re-argument of the gerrymander case in mid-March.North Carolina voters are almost evenly split between the two major parties; Donald J. Trump carried the state in 2020 with 49.9 percent of the vote. But the original map of congressional districts approved by the G.O.P. legislature in 2021, and later ruled to be a partisan gerrymander, would probably have given Republicans at least 10 of the state’s 14 seats in the U.S. House of Representatives.Using a congressional map drawn last year by a court-appointed special master, the November election delivered seven congressional seats to each party. With the decision on Friday, the G.O.P. legislature is likely to approve a new map along the lines of its first one, giving state Republicans — and the slender Republican majority in the U.S. House — the opportunity to capture at least three more seats. More

    • 113 Shares159 Views

      in Elections

      The Polite Disdain of John Roberts Finds a Target

      by

      Although the three branches of the American government were designed to be coequal, the structure of the Constitution tells us something about the relative power of each branch, as envisioned by the framers.Article I establishes the legislature. Article II establishes the executive branch. And Article III establishes the federal judiciary. It is true that the branches share powers and responsibilities. But it’s also true that the framers trusted Congress — the representative branch — with far more authority than it did the president or the Supreme Court.Congress makes laws. Congress spends money. Congress approves the president’s cabinet and says whether he can appoint a judge or not. Congress structures the judiciary and Congress sets the size of the Supreme Court and the scope of its business.The upshot of all of this is that when Congress calls, the other branches are supposed to answer — not as a courtesy, but as an affirmation of the rules of the American constitutional order. The modern Congress might be weak, and the presidency, against the expectations of the framers, might be the center of American political life, but it’s still newsworthy when a member of the executive branch says he or she won’t meet with the legislature.Chief Justice John Roberts is in a different branch of government, the judiciary. But he — a constitutional officer confirmed to his seat by the Senate — is still subject to the power of Congress to question and investigate his conduct. When Congress calls, he too should answer.Last week, Congress called the chief justice. In the wake of revelations concerning the friendship between Justice Clarence Thomas and Harlan Crow, a billionaire Republican donor, the chairman of the Senate Judiciary Committee, Senator Dick Durbin of Illinois, invited Roberts to testify at an upcoming hearing on Supreme Court ethics rules.“There has been a steady stream of revelations regarding justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally,” Durbin wrote in his letter to the chief justice. “These problems were already apparent back in 2011, and the Court’s decade-long failure to address them has contributed to a crisis of public confidence.”“The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards,” Durbin went on to say. “I invite you to join it, and I look forward to your response.”This week Roberts answered. He said, in a word, no.“I must respectfully decline your invitation,” Roberts wrote. “Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”This deceptively polite reply sounds reasonable for as long as you can manage to forget the fact that it is questions about the ethical conduct of the court and its members that have compromised the independence of the court. Was Thomas influenced by the largess of his billionaire benefactor? Was Justice Samuel Alito influenced by an explicit campaign to curry favor with the conservative justices? Was Justice Neil Gorsuch influenced by the lucrative sale of a Colorado property, in the wake of his confirmation, to the head of a powerful law firm with ample business before the court?It is with real chutzpah, in other words, that Roberts has claimed judicial independence in order to circumvent an investigation into judicial independence.More striking than this evasion is the manner in which Roberts ended his reply. Faced with serious questions about the integrity of the court, he pointed to a nonbinding ethics document that has done almost nothing to prevent these situations from arising in the first place. “In regard to the Court’s approach to ethics matters,” he wrote, “I attached a Statement of Ethics Principles and Practices to which all of the current members of the Supreme Court subscribe.”Roberts did not write an aggressive or confrontational letter. And yet, he is quietly making an aggressive and confrontational claim about his own power and authority and that of the court’s. “Separation of powers,” in Roberts’s view, means the court is outside the system of checks and balances that governs the other branches of government. “Judicial independence,” likewise, means neither he nor any other member of the court has any obligation to speak to Congress about their behavior. The court checks, according to Roberts, but cannot be checked.A number of legal scholars have remarked on the judicial power grab of the past several years, in which courts across the federal judiciary have seized key governing decisions from the legislative and executive branches and disparaged the ability of elected officials to, as Josh Chafetz of Georgetown University Law Center writes, “engage in principled, competent governance.”As one of the architects of this development in American politics, Roberts is essentially using this letter to make plain to Congress the reality of the situation: I will not speak, and you cannot make me. And he’s right, not because Congress doesn’t have the power, but because it doesn’t have the votes. In the absence of a majority of votes, the Senate Judiciary Committee cannot subpoena a justice. In the absence of 218 votes, the House cannot impeach a justice. And in the absence of 67 votes, the Senate cannot remove a justice.There are steps Congress could take to discipline the court — shrinking its budget, reducing the scope of its docket, imposing ethics rules itself, even making it “ride circuit” à la the 19th century — but those require a majority in the House and a supermajority in the Senate because of the filibuster, as well as a consensus among lawmakers (and specifically, Democrats) to follow through if they ever have the chance to do so.It is not especially dramatic, but this exchange with Chief Justice Roberts over the court, its ethics and its responsibility to the public and its representatives has done more than almost anything else in recent memory to illustrate a key reality of American politics in this moment: that our Supreme Court does not exist in the constitutional order as much as it looms over it, a robed tribunal of self-styled philosopher-kings, accountable to no one but themselves.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 138 Shares199 Views

      in Elections

      Republicans Are Forgetting One Crucial Truth About People and Their Bodies

      by

      In the homestretch of the epic Wisconsin Supreme Court race that ended last week with a blowout victory for liberals, voters’ cellphones pinged incessantly with text message ads.“Woke trans activists have their candidate,” one text message said, according to Wisconsin Watch, a local nonprofit news site. “Schools across Wisconsin are stripping away parental rights and trans kids behind parents backs. There’s only one candidate for the Supreme Court who will put an end to this. Vote for Judge Daniel Kelly by April 4 and protect your children from trans madness.”For a judicial race that centered on two big issues the Wisconsin Supreme Court is likely to consider soon, abortion and voting, it might seem odd that these ads in support of the conservative candidate chose to focus on an issue nowhere near the top of the agenda on the court’s upcoming docket.For reasons that are now obvious, conservative groups supporting Kelly largely avoided touting his opposition to abortion. That’s a sure loser, as the G.O.P. is rapidly learning. It probably wouldn’t have been a good idea to run on preserving the right-wing gerrymander that gives conservatives a total lock on Wisconsin’s Legislature and congressional delegation either. So some supporters reached for the wedge issue du jour: transphobia.An article of faith has emerged among hard-right conservatives — and has been worried over by some centrist pundits — that parental concerns about health care and social support for transgender children make for a potent wedge issue. After all, it has all the hallmarks of an effective culture war hot button: It involves strange new social and medical practices and unfamiliar ways of life, and children are sometimes concerned. But it’s not working the way conservatives expected.The end of Roe has reversed the tides of the culture war. The right has now lost it by winning the biggest victory of all. State legislatures across the country are enacting draconian abortion bans that are producing predictably tragic outcomes. Americans don’t have to imagine what the right will do with its power over women’s lives because we see it in every headline about women risking death because a doctor is too scared of running afoul of an anti-abortion law to provide a necessary medical procedure. It has become blindingly obvious what happens when Republicans legislate what Americans do with their sex organs. And voters, understandably, don’t like what they see.For years even before the fall of Roe, conservatives have used hard-edge anti-trans messaging in both red and swing state races, only to come up short. They tried it in North Carolina’s 2016 governor’s race, in the aftermath of a controversial bill requiring people to use the bathroom associated with their sex assigned at birth. The Democrat, Roy Cooper, won despite a hail of anti-trans ads. They tried it against Andy Beshear, the Democratic candidate for governor in deep-red Kentucky in 2019, and failed. In 2022, G.O.P. candidates tried to use L.G.B.T. issues as a wedge in races in swing states from the Midwest to the Sunbelt to New England. The data suggest that opposition to trans rights cannot overcome — or possibly even make a dent in — the advantage that comes to Democrats in swing states for supporting abortion rights. It’s not even close.“Transphobia was, and is, the dog that couldn’t hunt,” wrote the anonymous but eerily prescient polling analyst who writes a Substack newsletter under the name Ettingermentum.Wisconsin was the most recent example of this failure. The American Principles Project, a Virginia organization that is a driving force behind the harsh anti-transgender laws sweeping red states, spent almost $800,000 on ads supporting Kelly in the State Supreme Court race, according to Wisconsin Watch. A video paid for by the organization’s PAC accompanied text messages that described his liberal opponent, Judge Janet Protasiewicz, as “endorsed by all the woke activists that are stripping parents of their rights in Wisconsin schools and forcing transgenderism down our throats,” Wisconsin Watch reported.In one mendacious video advertisement the narrator claims that a 12-year-old was medically transitioned without parental consent. The video shows images of surgical scarring and implies that this child underwent surgery at the behest of school officials. This is absolutely false. The child in question merely changed their name and pronouns.But any hopes that this messaging would drive swing voters seems to have fallen flat. Indeed, the margin of victory in Wisconsin exceeded predictions. Joe Biden won the state by just 20,000 votes in 2020. Protasiewicz won by 200,000.The failure of anti-trans messaging as a wedge issue may seem surprising because the Democratic Party really does seem to have a problem when it comes to parents and schools. Resentment over Democrats’ support for school closures during the pandemic has become a liability for the party among educated suburbanites, as the 2021 governor’s race in Virginia demonstrated.But Republicans seem to be making the grave error of assuming that someone angry about school closures in the fall of 2021 is a potential conscript in their war today against drag queens and trans people. So far there appears to be little appetite among swing-state voters for laws that could — if our worst fears are realized — allow school officials to demand inspections of their child’s genitals before soccer matches and swim meets. Besides, there’s a far more urgent issue when it comes to students’ safety: In a country where child shooting deaths went up 50 percent from 2019 to 2021, who would trust their children to the political party that opposes gun regulation?There is no doubt that attitudes about gender are changing quickly, and changing especially quickly among young people. But it’s hard to draw firm conclusions about how Americans really feel about this. In a Pew poll last June, a large majority of respondents said they favor legal protections for trans people from discrimination in jobs, housing and public spaces. Other findings suggest unease: 43 percent said gender identity norms were changing too quickly. Majorities support requiring athletes to compete as their sex assigned at birth. Depressingly, 46 percent said they supported criminalizing gender-affirming care for minors.But one finding from that same poll stood out to me: 68 percent of respondents aren’t paying close attention to the trans bills popping up across the country, and three-quarters of self-identified moderates said they weren’t following the issue closely. But that doesn’t mean they are interested in restrictive or repressive laws, much less willing to vote on the basis of support for such policies.Of course, this lack of attention can cut both ways. Voters who aren’t paying attention to the issue are unlikely to be drawn to the polls to vote against a transgender care ban, either. In Florida, Gov. Ron DeSantis, presumed to be a leading candidate for the Republican presidential nomination in 2024, has been able to defy post-Roe gravity and increase his support despite prosecuting an aggressive culture war campaign against queer people. It remains to be seen how this would play out in a presidential election, which would run smack into swing states that have recently rejected in statewide elections both anti-abortion and anti-trans candidates.Democrats — and all Americans — should support the rights of all queer people, not just for electoral advantage but as a matter of principle. There is a clear line from the fight over bodily autonomy in reproductive rights to the fight for access to medical care for trans people. It’s a matter of dignity, too. Trans rights, much like abortion, present a profound challenge to the gender binary, which upholds the world’s oldest and most persistent hierarchy. People who don’t want to or cannot fit within their traditionally prescribed roles — mother, father, woman, man, boy, girl — increasingly have the freedom to live their lives beyond those circumscribed identities.The right has responded to this flowering of freedom with a barrage of repression. In states where Republicans have an ironclad grip on power, they have been incredibly successful. There are hundreds of bills passed or pending that vary in their intrusion on personal liberty but share the goal of giving right-wing politicians the power to control the bodies of citizens through law. On Thursday, this frenzy reached cruel new heights when the attorney general of Missouri issued new emergency rules that put up steep barriers to transgender care, not just for children but also for adults. These barriers could amount to a virtual ban on gender-affirming care for most transgender people in the state.In the face of this onslaught, some centrists seem determined to keep flirting with trans skepticism. It is easy to see why trans issues have become the place for certain centrists to try to perform their moderation — queer people have served this purpose for decades. While other forms of open bigotry became taboo, homophobia and the view that queer people’s rights were a marginal concern has persisted. It has happened before. Bill Clinton heavily courted the gay vote to win the presidency in 1992, only to turn around and sign into law two odious policies: Don’t Ask, Don’t Tell and the Defense of Marriage Act. Clinton has since rent his garments over his regrets, but the fact remains that he enshrined discrimination against queer people into federal law.Republicans like to say they are the party of common sense. But what they seem to have forgotten is the commonest sense of all: Most people do not want the government making personal decisions for them. People want to control their own bodies. People want the freedom to decide when and how to form families. Suddenly, after years of pointing fingers at the left for so-called cultural totalitarianism, Republicans have now decisively revealed themselves to be the “jackbooted thugs” wanting details on your teenage daughter’s menstrual cycle. It’s hard to imagine a less appealing message to swing voters than that.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 125 Shares109 Views

      in Elections

      Protasiewicz’s Wisconsin Victory Shows Power of Abortion Rights for Democrats

      by

      A resounding victory by a liberal judge who ran on abortion rights showed that a largely unified political left is keeping up its momentum, and served as a new warning sign to Republicans.MILWAUKEE — The commanding victory on Tuesday by a liberal candidate in a pivotal race for the Wisconsin Supreme Court showed the enduring power of abortion rights and issues of democracy as motivators for Democratic voters, as well as a continuing struggle among conservatives to put forward candidates who can unite Republicans and win general elections.The liberal candidate, Janet Protasiewicz, swept onto the bench by 11 percentage points, a staggering margin in an evenly divided battleground state that signaled just how much last summer’s Supreme Court decision overturning Roe v. Wade has transformed American politics.The Wisconsin race centered squarely on abortion rights and political representation: Judge Protasiewicz all but promised voters that if they elected her, the court’s new 4-to-3 liberal majority would reverse Wisconsin’s 1849 abortion ban and overturn the state’s famously gerrymandered, Republican-friendly legislative maps.Wisconsinites responded to that pitch, rejecting a conservative candidate backed by anti-abortion groups who took 2020 election deniers as a client and struggled to rally Republican donors behind him.The outcome, combined with a surprise victory in Chicago’s mayoral race by Brandon Johnson, an outspoken progressive, demonstrated that the country’s largely unified political left is sustaining momentum since its unexpectedly strong showing in the midterm elections, even as conservatives fight among themselves and struggle to counter Democratic messaging on abortion rights.Republicans are now heading into a series of coming races — for Kentucky governor this year and for president and an array of Senate seats in 2024 — with ample warning signs about the pitfalls of nominating candidates who hold positions on issues like abortion and elections that are unpopular with voters in the nation’s most competitive states.Judge Protasiewicz will join the court in August. Liberal lawyers in the state are already preparing to pursue lawsuits to roll back conservative policies. Jamie Kelter Davis for The New York TimesThe triumph by Judge Protasiewicz, a liberal Milwaukee County judge, will also allow Wisconsin Democrats to pursue their own agenda through the courts after spending a dozen years ducking and running at most levels of state politics, worrying about what the dominant Republicans would lob at them next.“For a long time, Democrats in the Assembly have understood that our role is primarily being on defense,” Greta Neubauer, who leads the chamber’s Democratic minority, said at Judge Protasiewicz’s victory party in Milwaukee. Now, Ms. Neubauer said, “we have an opportunity to go on offense.”Judge Protasiewicz will be seated on the court on Aug. 1. A legal challenge to the state’s abortion ban is scheduled to begin in circuit court in Dane County next month, and while it is unclear when the ban could come before the State Supreme Court, the justices are widely expected to hear the case within a year or two and strike down the ban. Liberal lawyers are also eyeing the best way to frame a lawsuit that could prompt the court to throw out the Republican-drawn maps.During her victory speech, the liberal candidate said she would treat the role with “integrity,” then was joined on stage by current members of the court.Jamie Kelter Davis for The New York TimesIt will be many months, at least, before there is a final State Supreme Court resolution on those and other hot-button issues likely to come before the court’s new liberal majority, which will consist of four women for the first time in the state’s history.To emphasize that point, when Judge Protasiewicz arrived to deliver her victory remarks on Tuesday night, she was trailed by the three sitting liberal justices as the sound system played Lizzo’s “About Damn Time.”“Today’s results mean two very important and special things,” Judge Protasiewicz told supporters. “First, it means that Wisconsin voters have made their voices heard. They have chosen to reject partisan extremism in this state. And second, it means our democracy will always prevail.”Judge Protasiewicz defeated Daniel Kelly, a conservative former State Supreme Court justice who also lost an April 2020 election by 11 points and went on to represent the Republican National Committee in its efforts to overturn President Donald J. Trump’s defeat that year.Justice Kelly, who has long been an opponent of abortion rights, did little to parry Judge Protasiewicz on the issue. He never mentioned abortion in his television advertising and, during his final rally on Monday night in Waukesha, a parade of Republican officials spoke for more than an hour without mentioning abortion.Instead, Justice Kelly and his allies focused almost entirely on crime, an issue that also fell flat in Chicago, where Mr. Johnson, a liberal candidate, defeated Paul Vallas, who had tethered his campaign to a tough-on-crime message.Asked about his relative silence on abortion, Justice Kelly said that “the court does not do political decisions,” adding, “The question of abortion, that belongs in the Legislature to decide.”That approach turned Justice Kelly into a denier of the current political reality.Supportive right-wing radio hosts complained that he had not defended the state’s abortion ban, and conservative donors, whom Justice Kelly was reluctant to call to ask for money, steered clear of his campaign. And not enough of Wisconsin’s legions of conservative grass-roots voters were energized by his campaign speeches, which delved into legal theory and lamented his severe financial disadvantage.“Doing a statewide campaign, as it turns out, is kind of hard,” Justice Kelly said at the Waukesha rally.On Wednesday, Mr. Trump blamed Justice Kelly, whom he endorsed in 2020, for neglecting to seek his endorsement this year, arguing on his social media site that this “guaranteed his loss.”Democrats in Wisconsin and beyond gave the Protasiewicz campaign a decided financial edge. Gov. J.B. Pritzker of Illinois organized a March 6 videoconference that raised $5 million for the Protasiewicz campaign, the Democratic Party of Wisconsin and allied groups. The party transferred $8.3 million to the Protasiewicz campaign.The Republican Party of Wisconsin gave no money directly to Justice Kelly. Instead, Republican donors poured $12 million into third-party groups, whose rates for television advertising are three times what candidates pay.Brian Schimming, the Wisconsin G.O.P. chairman, lamented the disparity and donors’ decision to keep an arm’s-length distance from Justice Kelly’s campaign.“There’s a fair bit of chatter about that right now,” he said. “We could have done a more efficient job of spending it.”Daniel Kelly, who has long been an opponent of abortion rights, did little to parry Judge Protasiewicz on the issue in their race.Marla Bergh for The New York TimesAfter abortion, the biggest issue facing the new liberal court will be the state’s legislative maps.Jeffrey A. Mandell, the board president and founder of Law Forward, a progressive law firm in Madison, said he aimed to have new maps in place in time for the 2024 election, which would most likely require the case to be decided and new maps to be drawn by next April, when candidates begin circulating petitions to qualify for the primary ballot.“There’s no time to waste,” Mr. Mandell said.The three sitting liberal justices declined to say whether they believed it was possible to have new maps ready for 2024, but Judge Protasiewicz said it was “unlikely” the court could decide a case and put new maps into effect by next year’s elections.Liberals will hold a 4-to-3 majority on the court through at least 2025, when Ann Walsh Bradley, a 72-year-old liberal justice poised to become the new chief justice under the new majority, faces re-election. Justice Bradley said Tuesday night that she would run for a fourth 10-year term.Democrats are hopeful about her chances: Since the Wisconsin Supreme Court began electing justices statewide in 1853, no justice who has won a competitive election, as Justice Bradley has done twice, subsequently lost one.Beyond abortion and redistricting, the new liberal majority will decide a host of other issues, including labor rights that were diminished by Republicans.Stephanie Bloomingdale, the president of the Wisconsin A.F.L.-C.I.O., said she had watched with jealousy this year as Michigan Democrats enacted a wide range of liberal policies after redistricting helped them take full control of their state government for the first time in 40 years.“We see them, we’re very proud of them, but we’re wishing it could be us,” Ms. Bloomingdale said. “You know, in Wisconsin, we can have nice things, too.”Even before Election Day, Wisconsin Republicans who saw that a liberal victory was likely began to disparage their State Supreme Court as an illegitimate body.“I don’t think people have any idea of what’s coming,” said Rebecca Bradley, a conservative Supreme Court justice who in a decision banning drop boxes last year compared the state’s 2020 presidential contest to elections in Syria, North Korea and Saddam Hussein’s Iraq. “We will have four people in Wisconsin robbing the people of the right to govern themselves.”But the scale of Judge Protasiewicz’s victory suggests that Wisconsin voters are inclined to dismiss the Republican arguments. She carried 27 of the state’s 72 counties — 11 more than Mr. Evers did when he was re-elected in November by three points — and nearly equaled the margin by which Jill Karofsky, a fellow liberal, defeated Justice Kelly in the 2020 election, when Democrats held their presidential primary on the same ballot.“I’m not concerned about the legitimacy of the court, because so many people voted for this court,” Justice Karofsky said as she nursed a Miller Lite at the Protasiewicz victory party. “So many people wanted this majority.” More

    • 113 Shares129 Views

      in Elections

      Wisconsin Supreme Court Election: Protasiewicz Wins With Abortion Message

      by

      Janet Protasiewicz prevailed in the state’s highly consequential contest for the Supreme Court, which will now be likely to reverse the state’s abortion ban and end the use of gerrymandered legislative maps.MILWAUKEE — Wisconsin voters on Tuesday chose to upend the political direction of their state by electing a liberal candidate to the State Supreme Court, flipping majority control from conservatives, according to The Associated Press. The result means that in the next year, the court is likely to reverse the state’s abortion ban and end the use of gerrymandered legislative maps drawn by Republicans.Janet Protasiewicz, a liberal Milwaukee County judge, defeated Daniel Kelly, a conservative former Wisconsin Supreme Court justice who sought a return to the bench. With more than 75 percent of votes counted, Judge Protasiewicz led by more than 10 percentage points, though the margin was expected to narrow as rural counties tallied ballots.“Our state is taking a step forward to a better and brighter future where our rights and freedoms will be protected,” Judge Protasiewicz told jubilant supporters at her victory party in Milwaukee.The contest, which featured over $40 million in spending, was the most expensive judicial election in American history. Early on, Democrats recognized the importance of the race for a swing seat on the top court in one of the country’s perennial political battlegrounds. Millions of dollars from out of state poured into Wisconsin to back Judge Protasiewicz, and a host of national Democratic groups rallied behind her campaign.Judge Protasiewicz, 60, shattered long-held notions of how judicial candidates should conduct themselves by making her political priorities central to her campaign. She made explicit her support for abortion rights and called the maps, which gave Republicans near-supermajority control of the Legislature, “rigged” and “unfair.”Her election to a 10-year term for an officially nonpartisan seat gives Wisconsin’s liberals a 4-to-3 majority on the court, which has been controlled by conservatives since 2008. Liberals will hold a court majority until at least 2025, when a liberal justice’s term expires. A conservative justice’s term ends in 2026.As the race was called Tuesday night, the court’s three sitting liberal justices embraced at Judge Protasiewicz’s election night party in Milwaukee, as onlookers cried tears of joy. During her speech, the judge and the other three liberal justices clasped their hands together in the air in celebration.“Today’s results mean two very important and special things,” Judge Protasiewicz said. “First, it means that Wisconsin voters have made their voices heard. They have chosen to reject partisan extremism in this state. And second, it means our democracy will always prevail.”Justice Kelly, 59, evinced the bitterness of the campaign with a testy concession speech that acknowledged his defeat and portended doom for the state. He called his rival’s campaign “truly beneath contempt” and decried “the rancid slanders that were launched against me.”“I wish that I’d be able to concede to a worthy opponent, but I do not have a worthy opponent,” Justice Kelly told supporters in Green Lake, Wis. He had not called Judge Protasiewicz by the time she delivered her victory remarks.He concluded the final speech of his campaign by saying, “I wish Wisconsin the best of luck, because I think it’s going to need it.”Judge Protasiewicz made a calculation from the start of the race that Wisconsin voters would reward her for making clear her positions on abortion rights and the state’s maps — issues most likely to animate and energize the base of the Democratic Party.In an interview at her home on Tuesday before the results were known, Judge Protasiewicz (pronounced pro-tuh-SAY-witz) attributed her success on the campaign trail to the decision to inform voters of what she called “my values,” as opposed to Justice Kelly, who used fewer specifics about his positions.“Rather than reading between the lines and having to do your sleuthing around like I think people have to do with him, I think I would rather just let people know what my values are,” she said. “We’ll see tonight if the electorate appreciates that candor or not.”Over the last dozen years, the court has served as an important backstop for Wisconsin Republicans. It certified as constitutional Gov. Scott Walker’s early overhauls to state government, including the Act 10 law that gutted public employee unions, as well as voting restrictions like a requirement for a state-issued identification and a ban on ballot drop boxes.In 2020, Wisconsin’s Supreme Court was the only one in the country to agree to hear President Donald J. Trump’s challenge to the presidential election. Mr. Trump sought to invalidate 200,000 ballots from the state’s two largest Democratic counties. The Wisconsin court rejected his claim on a 4-to-3 vote, with one of the conservative justices siding with the court’s three liberals on procedural grounds.That key vote gave this year’s court race extra importance, because the justices will weigh in on voting and election issues surrounding the 2024 election. Wisconsin, where Mr. Trump’s triumph in 2016 interrupted a string of Democratic presidential victories going back to 1988, is set to again be ferociously contested.The court has acted in Republicans’ interest on issues that have received little attention outside the state.In 2020, a year after Gov. Tony Evers, a Democrat, succeeded Mr. Walker, conservative justices agreed to limit his line-item veto authority, which generations of Wisconsin governors from both parties had used. Last year, the court’s conservatives allowed a Walker appointee whose term had expired to remain in office over Mr. Evers’s objection.Once Judge Protasiewicz assumes her place on the court on Aug. 1, the first priority for Wisconsin Democrats will be to bring a case to challenge the current legislative maps, which have given Republicans all but unbreakable control of the state government in Madison.Jeffrey A. Mandell, the president of Law Forward, a progressive law firm that has represented Mr. Evers, said he would file a legal request for the Supreme Court to hear a redistricting case the day after Judge Protasiewicz is seated.“Pretty much everything problematic in Wisconsin flows from the gerrymandering,” Mr. Mandell said in an interview on Tuesday. “Trying to address the gerrymander and reverse the extreme partisan gerrymandering we have is the highest priority.”The state’s abortion ban, which was enacted in 1849, seven decades before women could vote, is already being challenged by Josh Kaul, Wisconsin’s Democratic attorney general. This week, a circuit court in Dane County scheduled the first oral arguments on Mr. Kaul’s case for May 4, but whichever way a county judge rules, the case is all but certain to advance on appeal to the State Supreme Court later this year.Dan Simmons More