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My Comments-Thread Comment to Robert Waldmann’s “From Small Town to Prison” Post

Robert Waldmann did something this morning that I’d planned to do: He posted an in-depth post about the NYT’s awesome article in yesterday’s paper titled “From Small Town to Prison,” by Josh Keller and Adam Pearce.

Robert makes a critical point about the fiscal cause of the phenomenon that the Times article reports on, and my rather lengthy comment to Robert’s post adds some things that I’d planned as the key point to my post.

Here is my comment in the Comments thread to Robert’s post:

“It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.”

That certainly is true, but it also is caused by the complete takeover of the U.S. Supreme Court by the Conservative Legal Movement, which has removed any access to federal court in order to challenge through the habeas corpus process anything—and really, I do mean, as a practical matter, anything—that occurs in state or local court proceedings, however flagrantly violative of even basic constitutional rights.

For state-court criminal cases, these Supreme Court justices (not to be confused with justice; they’re justices, a title, nothing more) these people took an already awful federal-court jurisdictional statute that Bill Clinton cravenly signed in 1996 in order to avoid, y’know, soft-on-crime attacks during his campaign for reelection, and (very) effectively rewrote it to actually completely preclude federal habeas review of ANYTHING that transpires in ANY state or local court.

This was done in the name of states’-rights-to-violate-individual-rights-except-religion-gun-ownership-and -real-property constitutional rights. Er—I mean—in the name of FREEDOM. A.k.a., LIBERTY.

What I hadn’t realized, though, Robert is that because it’s the states that pay for state prisons, there is an incredibly strong incentive for these county DAs and judges to put everyone they can in prison, and or as long a time as is allowed—which according to the Supreme Court is as long as they want. One major achievement of the Conservative Legal Movement is that the Supreme Court has nullified the Eighth Amendment’s prohibition against cruel and unusual punishment.

A 12-year sentence for selling a handful of narcotic prescription painkillers, admittedly highly addictive drugs, is both cruel and (happily) unusual, and should be challenged as violating the Eighth Amendment. But under Supreme Court precedent from the current crowd+Antonin Scalia the lower federal courts probably would reject the argument.

I’m so glad you posted this post, Robert. I read the Times article yesterday and planned to include it in a post I plan to write soon whose main subject is my anger about the push by some progressive senators* and by some other progressives to get the Senate to confirm Merrick Garland to fill Scalia’s seat. This is beyond misguided. And it makes no sense.

The big, big progressive complaint about Garland is that he is pro-law enforcement, and especially pro prosecutor—and not all that concerned about such matters as specific constitutional rights such as Fourth Amendment search-and-seizure limitations and, well, other things. But Garland is, I guess, progressive on the kinds of things that corporate conservatives and culture-wars conservatives care about. In other words, he’s fine for conservatives on law-and-order stuff that is politically passe even among most Republicans, but is from the perspective of the Republican donor base and culture-wars base he’s not fine. So why push this guy? Why the hell was he even nominated, in the first place?

(Okay, he was nominated because Obama, like so many other political types, thinks it’s still 1988. But actually it’s not still 1988.)

There are more than a fair share of former prosecutors and other former government lawyers on the Supreme Court and the lower federal benches. There are almost no former criminal defense lawyers and civil rights lawyers on the federal bench at any level, and it’s been, like, forever since there’s been on the Supreme Court unless you count Ginsburg’s Women’s Issues legal background. It’s really, really, REALLY time for one. Or, hey, even two!

Hillary Clinton owes her nomination to African-Americans, and she may well owe her election to them. At a minimum, she’ll owe her large margin of victory to them, if it materializes. So I’ve been wondering: Who will be her first Supreme Court nominee? And her second one?

Everything about Hillary Clinton suggests that if she decides to pay attention to Blacks in her Court selections, she’ll go with appointing a second Black to the Court. I mean, hey—another first! Which she will conflate with, Hey! Someone who will actually matter to a significant numbers of African-Americans in what he or she DOES on the Court.

Which is not to say that that there are no African-Americans who would be terrific for the position; one I know of is an Obama appointee to the Fourth Circuit Court of Appeals, based in Richmond, VA. Or I should say, that’s my impression, although I don’t know all that much about him. But Clinton likely will just operate on the assumption that the specifics of the nominee don’t matter, other than the specifics of race.

My strong, strong preference would be Jeffrey L. Fisher, who was highlighted in one of NYT Supreme Court correspondent Adam Liptak’s occasional Sidebar articles last month titled “Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows.”

And to replace Ginsburg when she retires next July, the drop-dead awesome Vanita Gupta, Obama’s current Justice Dept. Civil Rights Division chief. (Kudos, Mr. President!) Gupta would be the first Asian-American on the Court, which means Clinton actually might appoint her! She won’t appoint Fisher, although there’s no one in the country who could come close to having the impact that Fisher would have on the Court because of his victories at the Court in gaining Scalia’s vote on some major constitutional-criminal-law issues.

Anyway … I’ve inserted into your post a link to the Times article, and corrected a typo (“2006”, rather than “206”). Your posts get a lot of readers, and I hope this one will be no exception even though it’s not on economics, except of course indirectly.

And I want to add this: I would love to see Pence asked about this at his debate with Kaine. And if he’s not asked about it by the moderator, Kaine should raise the point.

Okay, so I guess I’ve now posted that post I’ve been planning to post about progressives trying to push through Garland’s confirmation.  Good; one more thing I can check off my to-do list.

Oh. The title I’d planned for it: “The Really Awful Advice That Some Dem Senators Are Giving to Clinton.” They want her to announce now that she will renominate Garland to the Court–the idea I guess being that the Republican senators might as well confirm him now, although I have no idea why, since she’d be promising to nominate him rather than a young liberal. Garland is in his mid 60s.

Even more bizarre than that argument, Harry Reid also advised Clinton** that she should renominate Garland even if she doesn’t promise, pre-election or pre-inauguration, to do so, because, they say, she’ll be too busy in the first few months of her term to have someone new vetted and then have her administration shepherd the nomination through the Senate.

Seriously; that’s what that article about this that I linked to above  says.* The theory being that the new administration won’t be able to chew gum and walk backward at the same time, and Supreme Court appointments aren’t important.

So there we have it. Some Senate Democrats’ advice to Clinton is to throw away a Supreme Court appointment because it’s just easier that way.


NOTE: The last five paragraphs were added after original post was posted. 9/3 at 4:20 p.m.


UPDATE: Reader Nihil Obstet posted this comment in the Comments thread:

One of the great successes of the elite is to weaponize the Supreme Court nomination process by limiting it to culture war issues. We have to vote for our party’s candidate because of abortion, affirmative action, religious freedom, gun regulation, and sexual orientation. Both Democratic and Republican politicians are very happy with those issues. When I’m told that the election is all about the Supreme Court appointment, my reaction is, “You’re not helping your cause by saying that it’s crucial to get more Merrick Garlands on the court.”

I’m not seeing any focus among progressives about the need to reverse the erosion of personal rights with regard to the power of the state and of the corporations.

I responded: Exactly.

Added 9/3 at 4:44 m.


* Link corrected. 9/3 at 4:56 p.m.

** I erroneously said originally that “these senators” advised this.  But it was only Harry Reid who did, according to the article.  Apologies to Dick Durbin, Chris Coons and Chuck Schumer, the other senators the article mentions.  Also: Durbin apparently is playing a role in this because he is minority whip.  He’s one of my favorite senators, and so I’m a bit disappointed, but I guess he feels that as whip he has to participate in pushing for Garland’s confirmation. 9/3 at 5:08 p.m.

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Okay, folks, here’s the deal.  Specifically, this happened this morning:

A federal appeals court on Friday struck down North Carolina’s requirement that voters show identification before casting ballots and reinstated an additional week of early voting.

The decision by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit was an overwhelming victory for the Justice Department and civil rights groups that argued the voting law was designed to dampen the growing political clout of African American voters, who participated in record numbers in elections in 2008 and 2012.

“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” Judge Diana Gribbon Motz wrote for the panel.

The challenge to North Carolina’s law is one of several cases throughout the country seeking to eliminate strict voting rules in place for the first time in the November presidential contest.

Opponents of the law, led by the state NAACP, asked the three-judge panel to reverse a lower-court ruling that upheld the voting rules.

In 2013, North Carolina lawmakers overhauled election law soon after the Supreme Court got rid of a requirement that certain states with a history of discrimination receive approval before changing voting rules. Legislators eliminated same-day voter registration, rolled back of a week of early voting and put an end to out-of-precinct voting.

During oral arguments, Judges James A. Wynn Jr. and Henry F. Floyd remarked on the timing of the changes and on comments from a state senator who said lawmakers were no longer restrained by the “legal headache” of the Voting Rights Act.

The timing “looks pretty bad to me,” Floyd said, prompting murmurs of agreement from the courtroom packed with opponents of the law, some of whom traveled from North Carolina to the Richmond-based appeals court.

The same three-judge panel — Motz, Wynn and Floyd — had earlier ordered the state to keep same-day voter registration and out-of-precinct voting in effect as the case made its way through the courts.

Appeals court strikes down North Carolina’s voter-ID law, Ann E. Marimow, Washington Post, 12:34 p.m. today

Now understand this: The Fourth Circuit Court of Appeals went in the last seven years from an extreme rightwing court to a really good one.

So if you’re a progressive, whatever else you want to claim, do not—I mean it; I do not—claim it’s a good idea to sit out this election, or vote for Trump, in order to teach those Democrats a lesson. (Bernie Sanders and his supporters did that–taught the Democrats a lesson–actually.  And those of us who will vote for Clinton still are.  At least those of us who blog.)

If you don’t actually understand what the lower federal courts do, and you trust me at all, then trust me on this.  This matters.

It matters, folks.  It matters.

(I’d say, “Believe me.”  But, well … that line’s already copyrighted for this election cycle.  The copyright expires on November 9, 2016, I believe.)

And, yes, I predicted this would happen, because I know about the Fourth Circuit.  And I know this will stick, because I remember that Antonin Scalia died a few months ago, and John Roberts hasn’t yet figured out how to resurrect him.

I wish I had a football to spike.  I don’t, but maybe I’ll buy one today for the occasion.

But seriously, this is no game.  I implore you not to treat it as one.  It’s not football.  And it’s not, um, Russian Roulette.

Unless you make it that.


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Dealing the Woman’s Card—Clinton’s. And Mine. And Dealing the Man’s Card—Bernie Sanders’s. And Donald Trump’s.

There are limits to the analogy between Clinton’s 2008 primary contest with Obama and Sanders’s primary contest now with her.  Clinton doesn’t get that.  But she needs to figure it out because the differences matter.

There are limits to the analogy between Clinton’s 2008 primary contest with Obama and Sanders’s primary contest now with her.  Clinton doesn’t get that.  But she needs to figure it out because the differences matter., Me, Angry Bear, yesterday

Later yesterday I posted a short follow-up, saying:

When I wrote this post today I wasn’t aware of this piece by Jonathan Cohn (a longtime favorite of mine, dating to his time at The New Republic).  It was published early this morning but I just learned of it (h/t Paul Waldman).  But it makes the same key point that I do in mine.

Which is that Sanders supporters will know that their vote for Clinton in November will mean something much more than just a vote for Clinton or a vote against Trump.  Most of us will be out en force on election day, voting not because of Clinton but because of Sanders.  And voting, really, not for Clinton but for Sanders.  As well as for progressives in the down-ballot contests.

The movement has taken hold.

Which managed to garner some attention to my first post, since I’d linked to it, and spurred the following in the comments thread to it this morning:


April 28, 2016 7:57 am

People if you take nothing else from the above article. Except that change is possible if you help Bernie and Warren when they ask for help for explicit people; reform of the democratic party is possible.

If you believe that the common belongs to the nation and those who benefit should be taxed according to assistance they have received as a member of this nation. But, dino’s like the Clintons’ or Obama are no better than having a republican, as the goal is not the common good.



April 28, 2016 9:26 am

” But, dino’s like the Clintons’ or Obama are no better than having a republician, as the goal is not the common good.”

It is hard to imagine the stupidity required to write that sentence.

Prompting this lengthy comment from me:

You know what’s sort of funny to me about this thread?  I had forgotten this until this weeks’ Woman’s Card contretemps—specifically Clinton’s “Deal me in” response to Trump—reminded me of it.  Clinton responded with something like “If equal pay, and guaranteed paid family leave, and affordable preschool, and women’s healthcare are playing the Woman’s Card, deal me in.”  Ah; then I remembered the moment when I concluded that Clinton really DOESN’T have a core, or much of one anyway: When at the first debate last fall, after Sanders mentioned his proposal to tax everyone’s income at (I think) $1.54/a week (it was well less than $2.00) to pay for guaranteed paid medical and family leave, Clinton used, for the first of many times during the fall and very early this year, her rebuttal line that she wants to raise middle-class incomes, not lower them.

Until that moment I had thought that the one thing that really WAS her core politically was the panoply of traditional women’s issues, including guaranteed paid family leave.  Guess I was wrong about that, I said to myself.  So, apparently, did a good swath of other progressives.

She was raked over the coals for that—a stunning, dumbfounding comment from a Democratic candidate for president—yet she kept repeating it until the polls showed Sanders effectively even with her in Iowa and leading her in New Hampshire.  I remember the dismay and anger from commentators and others.  Several pointed out that that comment was straight from the Republican Party playbook.  And that apparently Clinton thinks FDR and LBJ wanted to lower incomes because, well … Social Security and Medicare.

Clinton thinks her problem in not being a natural politician is simply that she’s cold and stiff in her physical presence and speaking style.  She doesn’t recognize—and either do her campaign folks her feed her these sound bite lines she adopts—that her biggest problem, by far, is fondness for sound bites that are actually appalling.  Her husband raised taxes.  Guess he wanted to lower incomes rather than raise them.

I’ve debated here in AB threads several times with people who disagree with me that Clinton simply is not very bright.  That she’s so fond of this kind of thing—the asinine, self-defeating sound bites and sleights of hand that have been a hallmark of her campaign—is what I’m talking about.

NYT columnist Charles Blow has a good column today in which he calls Clinton a waffling contrivance.   Perfect!

But all that said, the bottom line is that EMichael is, extremely obviously, exactly right.  Why would anyone who is appalled by Citizens United and the Voting Rights Act opinion—two Supreme Court opinions that, unlike most of their other truly awful ones, most ARE aware of—think the outcome of the election between Trump and Clinton doesn’t matter?

I know that most people have no clue that most of the really important stuff that happens in federal courts happens at the district court (trial court) and circuit court (appellate court) levels. Much less do they know the genuinely appalling effect of the complete takeover of the entire civil and criminal justice systems, state and federal, by the Conservative Legal Movement.  Even less do they know the extraordinary breadth and reach of what this has affected.

Nor do they know that, finally—finally—in the last three years, thanks mostly to the decision by Harry Reid to kill the filibuster for circuit and district court nominees, the makeup of those courts has changed significantly and VERY meaningfully.

So, yeah, I repeat what EMichael said:

“”But, dino’s like the Clintons’ or Obama are no better than having a republician, as the goal is not the common good.”

“It is hard to imagine the stupidity required to write that sentence.”



I’m a Card Carrying Woman, but I prefer Sanders’s Man’s Card to Clinton’s Woman’s Card.  And Clinton’s Woman’s Card to this: Trump’s fiscal, healthcare and environmental positions will be drafted by the Club for Growth and the Koch brothers’-sponsored so-called think tanks and lobbyists.  Just as his actual policy proposals published on his campaign’s website were.


UPDATE: Greg Sargent has an up-to-date summary of efforts at a Clinton/Sanders rapprochement.

And Alexandra Petri discusses her own Woman’s Card.  Hilariously.

Added 4/28 at 11:24 p.m.

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Yes. Yes! YES!!!!: “New Subcommittee to Focus on Federal Courts and Bankruptcy System.” [With correction]*

Well, well, well.

The Senate Judiciary Committee has created a new subcommittee this year to specifically oversee the federal courts and the nation’s bankruptcy system, including administration and management, judicial rules, the creation of new judgeships.
Last session’s Administrative Oversight and the Courts Subcommittee has been split into two separate subcommittees for this session. Senator Richard Blumenthal will chair the new Oversight, Federal Rights and Agency Action Subcommittee, while Senator Chris Coons (D-Del.) will become the chairman of the new Bankruptcy and the Courts Subcommittee.
Coons, a lawyer and the main proponent of a bill last year that reauthorized expired bankruptcy judgeships, said he will focus on a wide range of issues in his subcommittee hearings. “We have a judicial vacancy crisis in many parts of this country, and I’d like to look at what can be done to address it,” Coons said in a written statement.

“Our federal courts have traditionally been the last bastion for many Americans to assert their civil rights, but recent federal court decisions have made it harder to not only enforce federal civil rights, but also rights that people may have as a consumer or as an employee under state law,” Coons said. “That has to change.”
New Subcommittee to Focus on Federal Courts and Bankruptcy System, Todd Ruger, The Blog of LegalTimes, today.

Oooooooohhhhh, yah!  Might we finally see an end to, say, the Rooker-Feldman doctrine? [Don’t ask.] And the Younger doctrine?  [Don’t ask.]  And the Supreme Courts’ Orwellian conflation of “liberty” and state “sovereignty” in federal habeas corpus law concerning criminal convictions if state court? [Pleeease don’t ask.]  

Okay, I’ll just say this much, since I know you’re asking even though I’ve asked you not to: The Rooker-Feldman and Younger doctrines are the civil-litigation equivalent of federal habeas corpus law concerning criminal convictions if state court.  Got that? I thought so. 

Except that in the latter, the justices, good textualists/originalists that they are, distort an actual existing federal “jurisdictional” statute in a manner that renders it flagrantly in violation of, um, the Fourteenth Amendment and the Supremacy Clause.  (States’ rights! Liberty! Er, liberty for states to violate individuals’ constitutional rights, as long as those rights aren’t, say, Second Amendment ones, or Fifth Amendment “takings” ones!)  But in the former, the civil-litigation “jurisdiction” “doctrines,” they’re not even purporting to interpret a jurisdictional statute; they’re creating their own “jurisdictional” law in contravention of federal jurisdictional statute.  (The Rooker-Feldman doctrine was created in a 5-4 opinion in 1983 that purported to interpret a part of the main federal-court jurisdictional statute that was repealed, at William Rehnquist’s request, three years later. No matter, the doctrine has only metastasized since then.)

Funny, how that separation-of-powers thing matters only when the Republican-appointed justices want it to. Y’know, that thing in Article III about it being only the Congress that has the authority to write court-jurisdiction laws (which the Supreme Court can declare unconstitutional but has no constitutional authority otherwise to create court-jurisdiction “doctrines”)? Aw, never mind.

Also, maybe now we’ll get some changes to the statutes and court Rules whose court filing fees and private-printing-of-say-cert. petition fees, and outrageous cost-shifting from plaintiffs to governments and mega-corporations for the government’s or mega-corporation’s litigation expenses, sometimes willy-nilly including their (the civil-litigation defendant’s) attorneys’ fees but in any event routinely including thousands of dollars in non-attorney-fees “costs–usually because the lawsuit was tossed out of court on some procedural/jurisdictional gimmick.  When there isn’t an already-existing procedural/jurisdictional ground that can be distorted to dismiss the lawsuit, one can always be created just for that occasion.  (And you thought this happened only to Al Gore!)

But I’ve saved the best for last: Now, maybe–maybe–we’ll finally get a law establishing an Office of Inspector General to review judicial-misconduct complaints and lifting the (yep, you guessed it) the prohibition against the complainant’s public disclosure of the fact that a complaint was filed.  Upon pain of dismissal of the misconduct complaint. Which, in one case I know of, involving a bizarre ex parte communication between a federal trial-level judge and a federal appellate judge in another region of the country (the trial-level judge jaw-droppingly implied in an  order he issued dismissing the lawsuit that he was doing so at the private urging of the appellate judge; seriously) would mean that, sometime during the now-28 months* in which the misconduct complaint has been pending–and before the two judges involved retire (one will be eligible this May; the other will be eligible later in the year)–the public might already know about what to of their esteemed judicial servants were up to back in 2007-08. And so might the Public Integrity Section of the Criminal Division of the Justice Department.

I would greatly appreciate it if anyone who knows what I’m referring to not post anything here about it.  This isn’t the time.  Or the place.  Seriously. Thank you.  

And anyway, that’s just one of many, many instances of truly blatant abuse of the current the-law-allows-us-to-circle-the-wagons-almost-no-matter-what system.  I know of other jaw-dropping instances, including one directly related to the one I’ve somewhat described. All for one, and one for all!

But this is the time, and one of the places, to begin to urge that Congress not–yet again– be cowed by the Supreme Court justices’ cries of  “ But … but … judicial independence!”  

Yeah, judicial independence.  And interdependence. That’s my point, as well as theirs.

I think that these are all things that both liberals and Tea Partiers can, and will, join together on.  We’ll see.

Nowwww we’re talkin’.  Maybe. We’ll see.  

It’s time now.  Really.

*Initially this post said incorrectly that the judicial misconduct complaint has been pending for 25 months. It has been pending for 28 months. Corrected 2/4.

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