Category Archives: courts

Somebody could file a lawsuit

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—So we said last week in writing about the difficulties of re-drawing congressional or legislative districts after each census.

Those of us who are of a certain age (I think I am beyond it, actually) remember a St. Louis mover and shaker named Paul Preisler (rhymes with Chrysler, as I recall) who was a pain in the neck on redistricting after census counts in 1950, 1960, and 1970.

Preisler was a Ph.D. biochemist, lawyer, photographer, civil libertarian, photographer, and once an instructor at the Washington University School of Medicine.   He also was a Socialist back in the days when it wasn’t quite the curse word that it has become.

In the 1930s he helped found the St. Louis chapter of the American Federation of Teachers and as its first president he led a successful effort to let the public school teachers there organize.

He joined the Socialist Party during the Depression and sued the Board of Election Commissioners when the board refused non-partisan candidates and minority parties the right to have poll watchers and challengers. The Missouri Supreme Court came down on his side, giving minority parties the authority to have poll watchers and challengers.

This guy never seemed to runout of gas.  Two years after the St. Louis chapter of the AFT was created, he ran for a place on the city board of education.  The school board rejected his candidacy because the board’s constitution made it non-partisan.

The Missouri Supreme court ruled three days before the election that the school board had to let Preisler run.  The board had to print new ballots. Preisler lost but he says he was running on principle, so the loss was okay.

When he got back from the war, he went after the city school board again because of its policy banning married women teachers from being teachers.  He won that case, too, and shortly thereafter decided, at the age of 48 that  he wanted to be a lawyer.

And he did.  In fact he was a professor at the Wash-U law school and became professor emeritus in 1969.

By then he had gotten into challenging redistrict maps.  His first target was again the St. Louis Board of Education. In 1952 he challenged the way the city Board of Election Commissioners had drawn new district maps. He won again and new maps were drawn.

Not one to be satisfied just filing lawsuits, Preisler filed himself in 1954—as a non-partisan congressional candidate. When Secretary of State Walter Toberman refused to accept his filing fee, saying that splinter parties (such as the Communists, and this was at the height of anti-communist feeling in the country) and Communists could not have candidates if the party didn’t get a lot of votes in the preceding election. Preisler argued that he should be able to run as a person rather than as a representative of a political party. The Missouri Supreme Court agreed with Preisler, again.

Not content with shouting from the sidelines, Preisler ran for office several times: twice, as a Socialist, for the legislature (1934 and ’36), six times as a non-partisan for a spot on the St. Louis Board of Education with campaigns starting in 1937 and continuing to 1971. He ran as a non-partisan for the St. Louis Board of Aldermen.

He never won any of the several offices for which he ran, which was fine with him because he ran to make a point.

In the 1960s he targeted the state. He decided the new congressional districts drawn after the 1960 census were not as compact and as nearly equal in population as the law required.  That was 1962.  When the legislature tried again and the public accepted the map in ’65, Preisler refiled his lawsuit in early in ’66 and the State Supreme Court agreed with him in the summer of 1966 that THAT map was unconstitutional.

The cases all led to landmark rulings on compactness of districts and the legislature’s authority to exercise its discretion, the court writing in the 1962 case naming Secretary of State Warren Hearnes as defendant that, “[A]ny redistricting agreed upon must always be a compromise. Mathematical exactness is not required or in fact obtainable and a compromise, for which there is any reasonable basis, is an exercise of legislative discretion that the courts must respect.”

For a time Preisler did pro bono work for the American Civil Liberties Union.  The State Historical Society of Missouri, which houses 22 cubic feet of his papers at its St. Louis Research Center, says, “He defended the right of students to wear long hair, hold anti-war demonstrations, and the publish uncensored newspapers. He also defended prisoners and women against discrimination.”

He was also involved in municipal affairs, once filing a suit against the City of St. Louis that eventually killed city plans to build a roadway through Shaw’s Gardens.

When he died in 1971 at age 69, Paul Preisler had another challenge to congressional districts pending. He lost that one, posthumously, in 1975.

There has been no one like him since.

But every time there’s a redistricting map drawn for congressional or legislative districts, there’s always that uncertain time.

Truth as a Defense 

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(The Missouri General Assembly is back in session and it, the governor, and assorted denizens of the hallways will be generating ample material for observation for the next four months or so.  We are giving Dr. Frank Crane a bit of a vacation until the end of the session so we might increase the number of appropriate observations pertinent to the times. While they might be of questionable value to you, they are good therapy for your obedient observer. We begin with a story of early United States history and how it might play out in our time.)

Journalists sometimes have to decide whether to break a law by publishing information beneficial to the public or whether to withhold the information and therefore do a disservice to the public.

That ethical dilemma for the journalist who decides to publish then can become a legal issue that is uncomfortable for prosecutors, among others, to consider. When First Amendment protections of the press enter the mix, the situation offers only awkward choices.

Case in point:  Governor Parson is confident the Cole County Prosecutor will file a charge against a St. Louis Post-Dispatch reporter who discovered a flaw in a computer program that endangered the security of personal information of thousands of Missouri educators. The governor believes he breached state law on computer information accessibility.

The newspaper did not publish the findings until the Department of Elementary and Secondary Education had fixed the problem.  Clearly, from this observer’s standpoint, the public was better served.  But also clearly from the governor’s standpoint, a law was broken. And as a former sheriff, he took umbrage with what he perceived as law-breaking.

Former Missourian Ulysses Grant, on being sworn in as President of the United States on March 4, 1869, proclaimed, “Laws are to govern all alike—those opposed as well as those who favor them.  I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”

The sentiment often is credited erroneously to Abraham Lincoln, perhaps based on an 1838 Lyceum speech in Springfield, Illinois.

Throughout our country’s history, the rigidity of law has been challenged by those who push against that rigidity. We could regard the Declaration of Independence as our country’s greatest challenge to existing law, for example.  Or the Civil Rights movement in more recent decades.

But more than fifty years before the Declaration of Independence, an important and surprising legal decision was made that seems to be important to the disagreement about the propriety of the report on education department computer security.

John Peter Zenger, the publisher of The New York Weekly Journal, was accused of libel by Royal Governor William S. Cosby in 1733 after Zenger accused him of various corruptions including rigging elections.  Under the laws of the time, any publication of information critical of government was considered libelous.

Zenger lawyer Andrew Hamilton, the most famous colonial attorney of his time, did not deny the accusations had been printed. But he demanded the prosecutor to prove they were false. The judge told the jury it had to convict Zenger if it found he had, indeed, printed the stories. But the jury stunned the judge, the governor, and many others when it returned after only about ten minutes of deliberation and found Zenger NOT guilty.

The finding was the first time in this country that truth was considered an absolute defense against the governor’s complaint that the law prohibited publication of information critical of government.

That ruling is considered by some historians as critical to the circulation of ideas that led to the Declaration, the American Revolution, and the development of our Constitution and Bill of Rights—and the First Amendment that includes press freedom.

Can the “truth is an absolute defense” be used in the case of the Post-Dispatch story?  We’ll see.  It is unlikely this series of events will rise to the historical significance of the Zenger case. But free public knowledge of truth must have value in a free society and a chance to emphasize that value in this time of the Big Lie should not be missed.

The principle established in a courtroom 288 years ago casts a light on the governor’s belief that a law must be strictly enforced despite the exposure of truth and the prosecutor’s decision about how to best address the issue of public benefit versus strict obedience.

The Unanswered Question

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There is an unanswered question that we did not address in Monday’s observation in this space about the governor’s accusation that a newspaper had “hacked” a state education department website.

It is unfortunate that Governor Parson refused to take questions after last week’s press conference in which he said he wants St. Louis Post-Dispatch reporter Josh Renaud criminally charged for notifying the state he had found personal information about thousands of school teachers easily obtainable from a Department of Education website.

Someone should have asked—and we are confident WOULD have asked—“Did the story tell the truth?”

That has been the critical question for 300 years whenever a United States political figure does not like what a reporter has written about him or her—since 1734 when New York’s Royal Governor, William Cosby, jailed newspaper publisher John Peter Zenger for eight months on a charge of libel.  Cosby proclaimed Zenger’s criticisms of his actions amounted to “divers scandalous, virulent, false and seditious reflections,” an 18th Century equivalent, perhaps, to Governor Parson’s complaint that the Post-Dispatch and Renaud were involved in a “political game” intended to “embarrass the state and sell headlines for their news outlet.”

The jury in the Zenger trial was out for only ten minutes before finding him not guilty. His  attorney had argued that a statement cannot be libelous if it is true regardless of the discomfort it causes someone, in this case the Royal Governor. More than fifty years later, Freedom of the Press became part of the nation’s constitution.

More than a century ago, a Missouri Capitol reporter was jailed for reporting the truth. Robert Holloway of the long-defunct St. Louis Republic was jailed after reporting in 1917 that a Cole County Grand Jury had indicted a top state official for selling coal from the state’s coal supply.  The official was John W. Scott, the former Commissioner of the Permanent Seat of Government.  Holloway also reported the grand jury was investigating whether Penitentiary Warden D. C. McClung improperly used state property. Grand jury proceedings, even today, are supposed to be secret.

His story ran before any indictments had been made public, leading the judge who had convened the grand jury to haul Holloway before him to tell where he had gotten his information. When Holloway refused to reveal his source, the judge jailed him until he talked, or until that grand jury’s term ran out. The Missouri Supreme Court upheld the order.

State Historical Society Executive Director Gary Kremer, who wrote about the Holloway case for the Jefferson City newspaper several years ago, has a picture of Holloway seated at his typewriter next to a barred jail window as he continued to report, his stories datelined “Cole County Jail.” He finally was released after two months on a promise to appear before a new grand jury if it called him.  It refused to take up the whole issue when it was convened. Those who had been indicted by the earlier grand jury were found not guilty.  Holloway remained a reporter, off and on, for most of the next three decades.

But he remains, as far as we have been able to determine, the only Capitol reporter ever jailed by the state of Missouri for telling the truth.

The governor’s call for Cole County Prosecutor Locke Thompson to take action against the newspaper gives Thompson a lot to think about.  There’s the First Amendment protection of press freedom. The newspaper attorney doubts the state’s law on computer tampering sufficiently applies to this case because the computer code allowing anyone to access the information was readily available through the Department of Education’s website.

There might also be a question of whether the state law on computer tampering is unconstitutional prior restraint on reporting information gained through legal means from a state computer. And proving the newspaper published the information with malicious or criminal intent will be difficult.  To the contrary, the newspaper’s actions to withhold the story until the department fixed the problem the investigation pinpointed is a strong argument against criminal intent.

But the basic question remains.  Did the reporter tell the truth?  There is no acceptable “yes, but” response. Zenger-Holloway-Renaud (or the name of any reporter since 1734) are linked together by that question.

And that is the only question that matters.

Notes from a Quiet Street  (Hot Summer Days & Nights Edition)

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We have officials from Missouri and many other states who are threatening to punish school districts and local health departments, in particular, if they institute mask mandates.  Our Attorney General, Eric Schmitt, is the chief guardian against local mask mandates and he now has a class action lawsuit forbidding school districts from having the mandates. He says parents and families should decide if children wear masks, not those who act in loco parentis when hundreds of children are together.  Parents and families, he says, should make decisions based on science and facts—-as if officials in charge of hundreds of children in close contact with one another can’t make decisions based on science and facts.  Or should not be allowed to make decisions based on science and facts.

The lawsuit also cites a low COVID death rate among school children.

Isn’t one child dying from this plague too high a death rate?

We find all of this energy by governors and attorneys general—almost unanimously Republicans—on this issue peculiar.

Remind us again which party is it that does the most griping about government over-reach, especially the federal government telling states (who know what’s best for their citizens) what should be done.

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One thing we’ve noticed about the pandemic, and now “the pandemic of the un-vaccinated,” is that no preacher has tried to capitalize on it as God’s punishment for this or that nation condoning this or that whatever.  Perhaps it is because all nations, whatever their faults, are fighting this thing—and deciding what human trait is being punished is impossible to determine, even by those who in the past have claimed exclusive knowledge of God’s intent.

But maybe God can’t get in a word edgewise amidst all of the conspiracy cacophony that has helped give the pandemic new vigor.

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There’s been a slew of book released revealing more about the more chaotic last chaotic days of the Trump administration. It is unlikely—we certainly hope it is unlikely!!—that we will ever again see so many books from so many insiders so critical of a president. But there’s one insider book we are waiting for although it might not come until the author determines that he will be more benefitted than damaged by his words.  Potential bombshell-author Mike Pence seems to think the success of his future is still too closely tied to his recent past to discuss it.

But, boy oh boy, the tales he could tell…….

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We notice, by the way, that the former VP is becoming more visible on the public speaking circuit.  He’s hitting some of the big venues—a few weeks ago he repeated his lamentable attack on Critical Race Theory at the inaugural Feenstra Family Picnic in Sioux Center, Iowa.

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Watching the drought envelop the West, we are reminded of some jokes that we heard back in the very hot summer of 1953 while growing up on our little Illinois farm.  That was the summer when the thermometers reached the 90s in late May and the heat wave ran well into September with several days in the triple digits.  In fact, the last 90-plus day was not until October.  Few homes or cars were air conditioned and I can recall my mother closing the curtains in the morning to keep out the sun during the day.

It was so hot that I saw three dogs chasing a tree.

We got a little rain one day and we sent what was in our rain gauge to the University to be analyzed. It came back only 35% moisture.

That was the winter is snowed a little bit but the snow was so dry we just shoved it into the ditch and burned it.

Not sure but those might have been told by Sam Cowling on Don MacNeill’s Breakfast Club that broadcast from Chicago for 35 years on the NBC Blue Network (which became ABC Radio) and is known as the program that created morning talk and variety as a viable radio format.

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Several months ago we told the story of a Cole County man who got married into a family situation that sounded like the story told in the song, “I’m My Own Grandpa.”

Well, we’ve found another one.  From the Sedalia Capital, a newspaper founded when Sedalia was making an ill-fated run at taking the seat of government away from Jefferson City, February 21, 1925 issue.  Page 5 has a picture of a nice-looking lady captioned, “Miss Ruth Davis’ marriage to her stepbrother, Andrew Jean Stormfeltz at Kansas City, Mo., made her mother also her stepmother and her mother-in-law, and her stepfather her father-in-law. She’s her own stepsister-in-law.  Figure it out.”

We’re not genealogist enough to know, but would that make their children their own cousins, or their own aunts and uncles, step or otherwise?

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I beg your pardon

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Ming the Merciless came to mind the other day.  The villain in countless Flash Gordon comics, movie serials, motion pictures, television shows and series programs, Ming presided over the Kingdom of Mongo and Flash was his nemesis.

Ming and Mike Parson have nothing in common. But word association kicked in when I noticed the latest word that Governor Parson issued 36 more pardons to imprisoned Missourians a few days ago.  By our count, that raises his total to 105 pardons in the last six months along with four reductions in sentences—commutations.  And I thought, “Mike the Merciful.”  And that led to the next thought, Ming. Odd how the mind works sometimes.

We haven’t combed the records of all of our previous governors but we suspect Governor Parson might already have set a record for pardons. Certainly he will have a chance to set one if he has not set it by now.

But it is unlikely that any previous governor has had the chance Mike Parson has had to take these actions.  It seems that his predecessors, we don’t know how many, did not act on about 3,700 clemency petitions.  His office says he has made a slight dent in that total by dispensing with about 500 of them.  Obviously, he’s not in the mood to rubber-stamp anything.

These circumstances might surprise some people.  He’s a conservative for one thing and conservatives are sometimes stereotyped as “lock ‘em up and throw away the key” people.  He sure isn’t a liberal who stereotypically would open prison doors to release all kinds of bad folks.

He’s a former sheriff and we’ve heard some law enforcement people complain that they work hard to put people away only to see some stereotypically soft-hearted judge let them go.

And here we have conservative Mike Parson, former sheriff, letting more than 100 people (so far) out of prison early.

If we were still an active reporter at the Capitol, we’d want to interview him about this issue. It’s one of the things we miss about not being an active reporter anymore—access to explore issues such as this with people such as Governor Parson.  So we’ve suggested to some colleagues they do it.

Just think of it as an old fire horse who thinks he hears the fire bell ringing again every now and then.

Without trying to read the governor’s mind, might we suggest a couple of things?

First, because he’s a former sheriff, maybe he understands that the justice system isn’t always fair to the people law enforcement officers spend a lot of time arresting.  Mandatory sentencing isn’t particularly fair all the time.  And not all of those going to prison are by nature bad people who deserve the stiff penalties they’re given whether under mandatory standards or otherwise.

Second, people change.  They earn a second chance and no good results from denying it to them.

Third, the accumulation of clemency requests not acted upon by predecessors is just plain wrong.  Justice delayed is Justice denied, we’re told.  Justice can be served in a lot of ways, and continuing to hold a redeemed soul behind bars isn’t justice. Or, at least, it hasn’t been for more than 100 people in the last six months.

From what we’ve seen, the bar is pretty high to merit a Parson pardon or a commutation. The folks to whom he’s giving clemency have not earned it by just doing time; they’ve earned it by what they have done with their time.

Last December, when he announced his first batch of pardons, he said he chose those who have “demonstrated a changed lifestyle and desire to move on from past behaviors.”

“If we are to be a society that believes in forgiveness and second chances, then it is the next chapter in these individuals’ lives that will matter the most. We are encouraged and hopeful these individuals will take full advantage of this opportunity.” 

He has told his legal team—less than a handful of people if we read the latest Blue Book staff list correctly—-to keep reviewing the files.  That’s a lot of reading and follow-up questioning for that small number of people to do. But they’re chipping away at it.

He said in December that he wants it clearly known that he’s not “soft” on lawbreakers. “There must be serious consequences for criminal behavior,” he said. “But when individuals demonstrate a changed lifestyle and a commitment to abandoning the ways of their past, they should be able to redeem themselves in the eyes of the law.”

It’s a clear message—-Lock ‘em up.

But remember where the key is.

And WHAT it is.   And what it is, is the inmate.

 

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If I Were a Lawyer–

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—in the District of Columbia, I would have been at work for a more than a month signing up as clients Capitol and District police officers and their families for a gigantic personal injury lawsuit against Donald J. Trump. I imagine there have been some pretty busy attorneys already.

I also might be signing up the families of the men and women now in custody and facing prison time because they believed Trump summoned them to Washington to do his bidding and upend the 2020 election results by stopping the certification of the Electoral College votes.  These families are facing economic damage caused by the loss of a wage-earner and might face a certain level of social ostracism because a family member took part in January 6th (there is no need to say “the January 6th insurrection” or “riot,” because this is a specific date that will mean something, as 9-11 means something without further definition). A massive class action civil lawsuit featuring dozens of hours of powerful witness-stand testimony will be difficult to counter by defense counsel saying, “He didn’t really mean it to turn out that way” or calling the damage lawsuits violations of his First Amendment free speech rights.

One might be able to say many things and escape penalty for saying them. But there is a penalty for the damage those words produce.

The creativity of the legal profession is likely to produce other clients with other claims of other kinds.  It would not be surprising that Mr. Trump’s financial empire, such as it is, to be placed in incredible jeopardy.  It will take legal representation of epic brilliance to defend him from devastating financial liability.

In every lawsuit, in every argument, Trump’s involvement in the worst assault on our system of government since the secession of southern states if not in all national history will be recalled. Every case will batter him personally as well as financially and likely will undermine his political credibility further.

But civil court proceedings are not the only difficulty facing the former president. Criminal investigations of the financial dealings of Trump and his family as well as investigations into his efforts to change election results—and who knows what other possibilities exist—appear to be lurking in the offices of federal and state prosecutors.

The chutzpah displayed in his post-trial claim that he will be a significant influence in the 2022 elections or a viable presidential candidate for 2024 will become more questionable as each of these possible civil and criminal cases moves forward.

The aftermath of his second impeachment trial could be worse for him than the week just past.

Senate Minority Leader Mitch McConnell’s post-trial speech scathingly rejecting Trump’s presidency can be seen, might be seen, by many as the first significant step by the Republican Party to be a party it used to be—a party greater than Donald Trump.

Some see McConnell’s speech as duplicitous, pointing to his former role as Majority Leader when he suggested the House impeachment charges should not be delivered to the Senate while Trump was still in office and then claiming the Senate could not convict Trump because the charges had not been filed before Trump left Washington.

Although McConnell’s statement is unlikely to lessen public cynicism toward government, his direct post-trial attack on Trump is something on which the party can build—if it will.

In his own post-trial statement, Trump never mentioned January 6.  He never mentioned the assault on the capitol.  He never mentioned any regrets that his mob imperiled the people who voted to acquit him. He never extended any sympathies to the people injured in the assault or who died that day and in succeeding days because of those events. He still has not admitted that he lost the election, continuing to emphasize his 75-million votes, still refusing to acknowledge that somebody else got seven-million more through the same processes that gave him 75-million. He promised to reveal a new “vision” soon for American greatness. Let us hope his new definition is better than his old one.

Having survived the latest political questions about his actions that day, perhaps he should spend some time developing a vision for dealing with the legal problems likely to come.  No beautiful wall around Mar-A-Lago will keep the lawyers out.

It has to be FRAUD, I tell you!

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I’ve been studying the Missouri results of the November 3 election and I believe we need some judges to declare there were fraudulent votes cast.  Thousands of them.

One need only look at the winning percentages of statewide Republican candidates to see evidence of illegal activity.

Missouri abolished straight-ticket voting in 2006.  But look at the winning percentages of top-of-the-ticket Republicans:

Trump 58.26%

Parson  57.17%

Kehoe  58.5%

Secretary of State 60.6%

Treasurer 59.2%

Attorney General 59.5%

Clearly, there’s something fishy here.  It’s impossible to have percentages this uniform unless there wasn’t illegal straight-ticket voting going on.  I’m not sure how it was done but it’s time to hire a lawyer, file a lawsuit, and accuse voters and local election authorities of plotting to assure a Republican sweep.

These votes should not have been counted because the percentages show there was clear tampering going on at the ballot box.  Chances are that a check of thousands of ballots will show remarkable similarities in the way the little ovals next to candidates’ names were filled in by reputed voters.

Furthermore, poll watchers were kept so far away from the tabulations that they could not closely examine the way the ballots were marked, thus being unable to challenge each ballot before it was processed.

All of the votes cast in the election of 2020 in Missouri should be voided because the uniformity of markings clearly shows extensive violation of the state election law against straight-ticket voting.

An investigation must be launched at the highest level to find the actual ballots that were removed so these fake ballots could be substituted and elections officials throughout Missouri should be jailed for their parts in this massive voter fraud that resulted in obvious straight-ticket voting ban.

Maybe the Democratic Attorney General of Pennsylvania, Josh Shapiro, and nine other Democratic Attorneys General who have no business sticking their noses into a Missouri election should file a petition asking the United States Supreme Court to throw out all of the ballots showing near-uniform voting for President Trump and the five Republican statewide officers.

Note to Nicole Galloway:  This election is not over!

The whole election was a record-breaking fraud, I say.  FRAUD!!!  FRAUD!!!

A presidential favor

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Our president refuses to admit he’s a loser..

But that’s okay—although his personal behavior and his political attitude suggest he should be sent to his room without supper

—because he might be doing the country a big political favor with his stubbornness. .

Mind you, this is being written by a voter who didn’t cover the campaign or the national election returns with the intensity of the national media, whether friendly or fake in the eyes of the president.

The election was unique beyond the combatants.  It was unique in the process by which it was held, a process that is likely to continue in many parts of the country.  Early voting in one form or another is here to stay. Processing of those votes in this election seems to have satisfied most people, but not our president and his loyal supporters. The president is filing lawsuits right and left alleging various kinds of fraudulent actions that have denied him a second term. The complaints appear to lack evidence but our legal system does not require proof before a citizen files a complaint.

Critics have little good to say about all of this even though they are not surprised President Trump is being a poor sport about losing.

Our president is also a citizen and as with all of us, he has a right to ask the courts to remedy what he asserts is a wrong that has been done to him. It would be nice if he had firm proof to back up his attacks on the elections system and the people of both parties who administered it in this terrible time.

That aside, let us look at the positives he might be providing the country rather than dwell on the negative aspects of his personal behavior.

Your obedient servant sees at least two benefits to his actions.

First, in filing all of his lawsuits claiming the process was badly flawed, he is giving the courts multitudinous chances to confirm it was not.  He is giving the courts—perhaps ultimately including many judges that he appointed—an opportunity to confirm our elections system worked even under one of the most severe tests it ever has faced.

As this is written, he and his lawyers haven’t won a single case. His efforts to de-legitimize the election and the election process are, in fact, legitimizing them, thanks to his losses in the courts.  So cut him a little slack. So far he has proven the process he seeks to disprove.  Let him keep going.  In the end, the establishment of a 21st Century system of voting might be one of his biggest legacies, much as he might dislike the result.

Second, he is proving something upon which he has at times cast doubt—the concept that no one is above the law.  Not even the president.  In filing his lawsuits he is admitting that he does not have the power as President of the United States to void an election.  He has the same authority you or I have, the authority as a citizen to seek redress of perceived wrongs through the court system.  He’s not above us.  He is still just a citizen regardless of his title.

So let him go, even though his accusations and his lawsuits and his lack of cooperation with the president-elect’s transition effort is not good for the nation.  Let’s appreciate that he’s proving—although he doesn’t seem to want to—that two essential parts of our democracy are true—that no one is above or beneath the law including a president, and the election system not only works, it is capable of working under the greatest of strains.  It might need some fine-tuning after this, but once again, this latest use of the system given to us by our founders has continued to work.

Tinkering with the court 

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Talk by Democrats about increasing the numbers of Supreme Court Justices after the confirmation of Amy Coney Barrett—IF they gain control of the Senate—is nothing new.  The court membership has fluctuated from five to ten and the changes often have been for political reasons, not because of concerns that the court would not dispense justice.

The concern by liberals that the Court will be 6-3 for years to come is based in part on the ages of the present members of the Supreme Court.  If Joe Biden is elected president, he might have a chance to hold the court at 6-3.  A loss exposes the court to the possibility of slipping to 7-2. If Democrats hold onto the White House, for another four years after Biden (assuming Biden keeps to his early statement that he would not seek a second term) his successor could flip it back to a 5-4 court. But some things would have to happen and it is not wise to count on them falling into place.

Justice Stephen Breyer, appointed by President Clinton, is 82.  We are not aware that he has said anything about hanging on until a Democrat takes office but at 82, he might think about whether he wants to still be on the court at 86.  Clarence Thomas, the senior justice, is 72, a Republican appointee. He also hasn’t said anything about leaving—in fact it is rare for him to say anything at all publicly, and nothing says he must—but he soon will have thirty years on the court, becoming the fifteenth justice to reach that tenure.

Depending on this presidential election and the next, Breyer and Thomas might be where Justice Ginsberg was—trying to hang on until a new president of an acceptable party is elected before retiring.

Here are the ages of the present and likely future U.S. Supreme Court:

Stephen Breyer   82 (Clinton)

Clarence Thomas 72 (Geo. H. W. Bush)

Samuel Alito  70 (GWB)

John Roberts 65 (George W. Bush)

Sonia Sotomayor 66 (Obama)

Elena Kagan 60 (Obama)

Neil Gorsuch 53 (Trump)

Brett Kavanaugh 55 (Trump)

Amy Coney Barrett  48 (Trump)????

All of this is assuming everyone remains in good health.

If Democrats have the White House for the next eight years, Justice Thomas will be 80 and he will be approaching the tenure record of 36 years and 7 months set by William O. Douglas (1939-1975), the only Justice to serve more than 35 years. Would Thomas want to set a new record and in the process wait for a Republican President and a Republican Senate again?

But how about just adding new seats on the court while the Democrats are in power to neutralize the current conservative leaning or to offset it?

There is nothing sacred about the number nine in determining the size of the court. The Judiciary Act of 1789, the legislation that enabled to Constitutional provision creating the court system, established the first U.S. Supreme Court with six members—a Chief Justice and five Associate Justices.

The National Constitution Center says President John Adams and a lame-duck Congress passed a law in 1801 to reduce the court to five members. That was done to limit incoming President Jefferson from making appointments. Jefferson’s Republicans overturned that act and put the membership back to six. A seventh judge was added during Jefferson’s term when a Seventh Judicial Circuit was created.

For some time, the number of justices was tied to the number of federal court circuits. When Congress expanded the number of districts, President Jackson added two more members of the court. When the Tenth Judicial Circuit was created in 1863, Congress added a tenth Justice.

Congress did not want President Andrew Johnson, soon to be impeached, to appoint any new Justices, so the Judicial Circuits Act of 1866 reduced the membership from ten to seven with the decrease taking place as vacancies occurred. Two years later, with Johnson gone and Grant in the presidency, only two vacancies had occurred, leaving the court with eight members. The Judiciary Act of 1869 added one seat back, setting the membership at nine and there it has stayed to this day.

The number withstood President Franklin D. Roosevelt’s threat to enlarge the court because it leaned conservative and wasn’t as supportive of his New Deal policies as he wanted the court to be. His Judicial Reform Act of 1937 would have expanded the court to fifteen. The court took the unusual step of engaging in the political process when Chief Justice Charles Evans Hughes, a conservative, and liberal Justice Louis Brandeis came out against the plan. Not long afterwards, changing voting patterns on the Court and vacancies that Roosevelt could fill took care of the situation as far as he was concerned. Roosevelt’s packing proposal had gained little traction anyway.

So that is how we got to having nine members of the U.S. Supreme Court.

Here’s another interesting tidbit about the selection of new Justices. If you read the original Constitutional language in last week’s entry, you might have noticed there are no qualifications listed for becoming a member of the U. S. Supreme Court. Nothing says a Justice must be a lawyer or have previous experience on the bench. Should a President want to appoint a White House janitor to the court, he or she could do that.  The Senate with its confirmation powers presumably would not confirm a janitor. But how about—-

Justice-nominee Sean Hannity, a house painter before he started talking on the radio. Never finished college.  But under the Constitution, he could be appointed to the U. S. Supreme court.

Would Senator McConnell fast track that one?

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Just doing his duty

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A warning:  When we composed this examination of current events, we did not realize it would generate a second chapter.  Today, chapter one.

A lot of people are getting all hot and sweaty about President Trump’s push to get his Supreme Court nominee confirmed by the Senate before the election so she can rule on any lawsuits about the legitimacy of the election that reaches it. He is convinced the only way he can lose is if there is massive voter fraud and he has lawyered-up to file a lot of lawsuits. Addressing that demagoguery is not our purpose here today.

Let’s talk about the process a little bit because it’s been a while for most of us since our political science classes in high school or college and with all of the shouting and finger-pointing going on, a bit of a refresher course might be in order.

First, the president said last week, “I have a constitutional obligation to put in nine judges—justices.”

Well, yes and no. Article two, section two of the United States Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint….judges of the Supreme Court.” Note that it does not say how soon after a vacancy occurs the President must act.  It also does not say an incumbent President must act.

Article three, section one says, “The Judicial Power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme court and inferior courts shall hold their offices during good behavior and shall at all times receive for their services a compensation which shall not be diminished during their continuance in office.”

Now, there’s something we don’t hear discussed often.  These judges shall hold their offices “during good behavior.”  We went to Congress.gov to see what that means because most of us, your faithful observer included, who had not observed that qualification before and wonder what that means.

For those of you who think the only thing we have to do is read the Constitution to solve all of our problems, this is an example of the flaw in that argument.  One of many.

Congress.gov says, “This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior. The applicability of the Good Behavior Clause to the removal of federal judges has been the subject of debate; in particular, whether the phrase elucidates a distinct standard for removal apart from the high crimes and misdemeanors standard applicable to the impeachment of other federal officers. While this question has not been definitively resolved, historical practice indicates an understanding that the Good Behavior Clause protects federal judges from removal for congressional disagreement with legal or political opinions.”

If you think the noise we are hearing about the president’s appointment is loud, imagine what would happen if Congress had the power to remove Supreme Court Justices with whom the majority of Congress disagreed? Why would it have to be the whole Congress, even?  The Senate is the chamber that confirms nominees to these offices.   The Senate giveth; the Senate taketh away.

Nothing is written that prohibits Congress from doing that. What is written is the power of the House to impeach federal public officials (Article one, section two, clause 5).  As we know, after the House files charges (impeachment), the trial is held by the Senate (Article one, section 3, clause seven). Not all federal officials can be impeached (Article two, section four, which also defines the misconduct that can lead to impeachment).

But impeachment is not expressly mentioned in Article three, the judicial article. Instead of listing specific causes for impeachment of Supreme Court Justices, the Constitution speaks of “good behavior,” and that, says Congress.gov, “is widely understood to provide the unique nature of judicial tenure.”

One interpreter of that standard said in 1983, “The nation’s founders so insulated the job against political pressures because they believed the mission of the federal courts requires a high degree of independence in the third branch. The security of life tenure, the Constitution’s framers thought, would encourage resistance by the federal branch to popular moods of the moment not properly expressed in laws, and would promote the fidelity of federal judges to the enduring values embodied in our fundamental instrument of government.”  The observation was given in the John R. Coen Lecture Series at the University of Colorado School of Law by United States Circuit Judge Ruth Bader Ginsberg.

Your observer has diverted himself from the theme of our discussion but the diversion, we hope, has helped understand the special nature of the third arm of our government.

Back to the president’s statement that he has a Constitutional responsibility to “put” nine judges on the U. S. Supreme Court.

Not really.  The word “immediate” is not in the Constitution. The words “without delay” also are not in it.

He can only do it if the Senate agrees to let him do it.  That’s where the Advice and Consent language kicks in.  He also is not required to make sure the court has nine justices. The number nine is not mentioned in the Constitution and the president’s fellow Republicans a few years ago had no qualms about leaving the court with eight judges for fourteen months so that the next president could make the appointment.  Did that hamstring our judicial system?

No, it did not. In fact we have found eight cases dating to 1973 in which the court tied, sometimes because of a vacancy but most often because one of the Justices did not take part in the decision for one reason or another.  Eight cases in 47 years hardly hamstrung the judicial system.  So there is no Constitutional requirement that the president appoint a ninth Justice.  He is not prohibited from doing so a few weeks before an election, either.  Nor is he prohibited from leaving a vacancy indefinitely.   But when he does suggest someone, the Senate is mandated to provide its blessing before that person can put on the robe.

In fact, there is nothing in the constitution requiring nine members of the U.S. Supreme Court, as you could see by reading the provisions at the top of this offering. We will get to that next week.  We will mention that the number of members of the U. S. Supreme Court is set by Congress, which is why we’re hearing Democrats say they’ll try to expand the court to keep it from swinging unacceptably (to them) to the right.

“Packing” the court, as it’s called, has its perils.  What happens if Congress decides a 9-3 court is too radical?  Would it raise the number of 19?  Lower it back to 9, kicking some judges off the bench in the process?

It is obvious that the contemporary situation is a dangerous one—not in terms of whether the potential new court member swings the court far to the right but whether the handling of the nomination by the president and his party will lead the Democrats to do something that spreads the chaos of the Legislative and Executive branches to the judicial branch, where calmness in determining the validity of our laws should prevail.

—at least, in a more perfect world.

We conclude by submitting that the arguments made in the Merritt Garland case are specious and do not apply in the current case. The public’s decision in 2016 to have a president and both houses of the Congress represented by one party does not give that party a license to act with impunity in the current instance, especially since that party has seen a reduction in its overall congressional numbers in the intervening election although gaining two seats in the Senate in 2018. The argument is a red herring.

The issue, created in the Garland case, is whether one party can act one way prior to an election and then four years later, act another way even closer to an election. Any discussion beyond that is political gymnastics. The people’s will seems to be changing, as seen in the change of party power in the House and concerns by Republicans that their control of the Senate after November is in jeopardy. The surveys indicating the public mood continues to change this year further weakens the argument that what was sauce for the goose in 2016 should not be sauce for the gander because of 2018.

But, let’s face it.  Senate Republicans don’t give a tinker’s dam what one old man on a quiet street in Middle America thinks.

Next week we’ll be back with some more history and a look at the court’s future, which could become worse for liberals and might not get back to 5-4 for a decade or more.