Author Archives: sbennett

What will Trump play while America burns?

Posted on October 17, 2016 | Leave a comment

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No doubt many of us would consider an election and its attendant politics to be the paragon of an adversarial institution or process. Naturally, we expect a certain degree of hardball from candidates and parties when it comes to a competition for power. However, it’s one thing to raise hell about partisan gerrymandering – the nefarious scheme politicians employ in order to ensure electoral domination by their party and its other candidates – but isn’t it a whole other ball game to claim that an entire election will be rigged and stolen? (Not even that it was fraudulently won, but that it will be. Fear > Facts.)

Donald Trump’s latest, and arguably most concerning, comments regarding the upcoming presidential election have thrown many reasonable citizens into whirlwinds of confusion, anxiety, and outright fear. (If somehow you haven’t yet heard about any of this, this should bring you up to speed.) Those same flippant, yet consequential, remarks have primed his supporters for what may prove to be the least peaceful transfer of power that this nation has ever seen.

When it comes down to it, especially given the salience and perceived importance of the presidency in the minds of many Americans, the United States really only survives due to the gracious and peaceful quadrennial transfer of power from one chief steward to the next after a free and fair election.

While Donald Trump’s warning that such an American rite may be subverted may suggest negative prospects for his ascension to the presidency, giving at least some of us superficial comfort, the fact remains that he seems to have convinced a not insignificant number of ignorant, confused, obtuse, disillusioned, angry, and armed people to prepare for what we can only imagine would be a literal uprising.

Many Americans consider “the election” to be the fundamental institution of democracy, and to spoil our common trust in its practical efficacy and salutary potency disrespects the rules of the game from a procedural perspective – this is a process which he willingly joined and the rules of which he agreed to follow – and threatens the actual security and stability of the United States as a sovereign state. He has stepped beyond his hateful and ignorant remarks to take aim at the very mechanism through which American democracy is able to exist at all.

Sometimes sports fans burn cars or businesses in their own cities when their teams lose, but should a politician burn a whole country when he loses an election?

-SB

Alexander Hamilton and the Supreme Court nomination crisis

Posted on March 9, 2016 | Leave a comment

By now there is (probably) not a single person in the country who remains unaware of the impending, but also already incredibly intense, showdown over President Obama’s nomination of a new Supreme Court Justice to replace Antonin Scalia, who died last month. (Facts: here. Conspiracy theories: here.)

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In justifying their refusal to consider any nominee, many Republicans cited the authority of both precedent and even some vague Senate “rule,” arguments which have since been unmasked as straight up not true. The number and intensity of opinions seems to be growing wilder and fiercer by the day, so I thought I’d one-up Republicans by appealing to an authority even higher than mere precedent or tradition: Founding Father Alexander Hamilton.

The Brennan Center for Justice at NYU does a great job explaining in this article (which can be read alternatively as a cross-posting at The Huffington Post if, for some reason, you prefer Arial to Helvetica) how the framers of the Constitution, particularly Hamilton (and Madison), expected situations like this would be handled by future generations.

As its authors note: “Our constitutional system only works if the institutional players adhere in good faith to the Constitution’s basic rules.”

Politics is an appropriately adversarial system; however, it is inappropriate, and even dangerous, to play political games with the basic, constitutive rules of a government. Politicizing the mere maintenance of the fundamental institutions of a system of government risks gutting the framework and crippling the stability of that system.

Things fall apart: Williams v. Pennsylvania and judicial conflicts of interest

Posted on March 1, 2016 | Leave a comment

It seems self-evident that no person should be permitted to judge a case in which they have an interest, but our laws do not yet reflect this principle clearly, if at all. The Brennan Center for Justice at NYU recently published this article about a capital case—Williams v. Pennsylvania—in which conflict of interest has had a leading role.

This is a particularly timely article because the U.S. Supreme Court—narrowly divided on this issue several times in the past, though now more evenly so with the recent passing of Justice Scalia—heard oral arguments in this case yesterday, February 29^th. (Transcripts and recordings of the oral arguments will be available here by March 5^th.)

What is important for us to note is that, at issue are not disputes over guilt or innocence, but rather whether the fundamental concept of procedural justice has been tainted by a judge’s conflict of interest; and what kind of threat that would pose to both the perception and reality of justice and fairness in our legal system.

As the article notes, we all have the right to a fair trail before an impartial judge; yet

Mr. Williams was denied that right, by any reasonable reckoning, when Pennsylvania’s Chief Justice, Ronald Castille, who is now retired, declined to recuse himself in a 2014 ruling by his court upholding Mr. Williams’ death sentence, notwithstanding an astonishing conflict: He personally approved and oversaw Mr. Williams’ prosecution and post-trial defense of the death verdict in his earlier role as Philadelphia’s district attorney.

“You look familiar. Have I prosecuted you somewhere before?”

Our legal system is necessarily, and fortunately, adversarial; and removing that adversarial component from this case puts the integrity of the entire system at risk.

Lawyers are to argue their client’s case competently, perhaps even very aggressively, and an impartial magistrate is to judge the proper course of action after listening to and considering both sides. But what might we expect to happen if one of those lawyers were to become the “impartial” judge of the case at a later stage of the trial and then refuse to recuse himself? (Spoiler alert: objectively bad things, many of which are certainly immediately apparent to the reader even as pure hypotheticals.)