Federal judges and the Security-Researcher-in-Chief

As President-elect Donald Trump continues to seek out structural flaws in the United States Constitution, it makes sense for us to take a look at the already-strained judicial branch. While popular attention has been focused on the Supreme Court seat made vacant by the death of Antonin Scalia, and the Senate’s refusal to hold confirmation hearings for Merrick Garland, that’s hardly the only structural problem currently facing the federal courts.

Carl Tobias writes:

There are now 94 unfilled openings on federal circuit and district courts — a vacancy rate impeding the delivery of justice.

Senators’ lengthy absence during the election season — which followed a prolonged summer recess and a truncated September session — means no judge has been confirmed since July 6. The election results likely will prompt yet more judges to retire or assume senior status (in which they manage reduced caseloads), which means this number could easily swell to 110 openings.

Tobias focuses on the issue that Obama’s nominations for those openings will expire at the end of his term, and it may take a long time for Trump to get past more pressing parts of his agenda and make nominations. I have a different question: what if Trump doesn’t nominate any judges at all?

Article II, section 2, paragraph 2 of the Constitution states:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

We’ve got a “shall appoint” in there, but Trump so far has been notably indifferent to his Constitutional obligations, and this is a particularly weak one. Tobias points out that of thirteen court vacancies in Texas, Obama hasn’t even bothered making a nomination for eight of them. So it’s entirely conceivable that Trump could simply neglect this duty indefinitely. (The United States Courts website currently lists 104 open judgeships and 59 pending nominations.)

This would undoubtedly be anathema to the faction within the Republican Party which has focused on building low-level power through state legislatures, as district judges would meet similar logic. Yet it’s not at all clear where that faction falls within the burgeoning conflict over Trump. And declining to nominate their judges may be one of the President-elect’s few concrete weapons against that group. We could see this result out of neglect, but we could also see it out of malice in intraparty conflict.

There are currently 860 federal judgeships. 104 openings is already a significant burden on the federal court system, and that number will only grow. Sixteen additional judges are currently scheduled to retire or assume senior status between now and September 2017.

Trump’s showing in the recount will be enlightening

Yesterday the Clinton campaign announced it would be sending lawyers to participate in the Jill Stein-led recount in Wisconsin, and any other states Stein manages to request a recount in. Meanwhile Donald Trump called it a scam on Twitter.

I spent a lot of time following the Franken-Coleman recount for a Senate seat in 2008; I even wrote a song about it. Possibly the most important thing I learned from that process is that it matters a lot how hard and how well a candidate’s lawyers work. In that recount nearly 7,000 ballots were challenged by representatives of one campaign or the other, and 1,325 ballots went to argument before the State Canvassing Board, and as I watched it on video I felt that Franken’s attorney had a distinct advantage. It probably didn’t change the result of that election, but it certainly moved the odds.

While the elections in Wisconsin and Pennsylvania may not end up close enough for individual-ballot arguments to matter, it’s possible that they will. And the fact that Clinton’s lawyers are gearing up while the Trump campaign is still blustering over the issue and refusing to engage seems to me like a significant advantage for Clinton.

If rumors that Trump was surprised to discover he had to staff the White House are true, he may also be unaware of the necessity for having his attorneys watching over the recount. And while Franken’s attorney had an advantage in 2008, Coleman’s attorney showed up and was competent. If the Trump campaign can’t manage that, it’s possible this election could move quite a distance in Clinton’s direction.

In a sense this is the first essential executive process that Trump is obligated to show up to with his full attention. Seeing how he mobilizes his representatives and attorneys for the recount should give us a good sense of how he’ll be able to handle the logistical duties of the Presidency.

Obama Loosens Restrictions on Special Forces Operations

At a time when many Americans are as scared as we’ve ever been of the potential consequences of overreaching executive power, President Obama has decided to increase it.

President Obama’s administration is giving the elite Joint Special Operations Command — the organization that helped kill Osama bin Laden in a 2011 raid by Navy SEALs — expanded power to track, plan and potentially launch attacks on terrorist cells around the globe

Specifically, SOCOM is getting the ability to act on its own behalf rather than through regional ground commanders, and to coordinate more freely with other intelligence agencies. This move essentially strips a layer of oversight from counterterrorism activities undertaken by special forces, an area where oversight was already extremely limited.

It is unclear, however, whether the Donald Trump administration will keep this and other structures set up by Obama. They include guidelines for counterterrorism operations such as approval by several agencies before a drone strike and “near certainty” that no civilians will be killed — a series of orders known as the “playbook.”

The Playbook is already a joke. The “near certainty” standard ended the lives of between 64 and 116 civilians in the first seven years of the Obama administration, if you believe the administration’s own numbers. Third party observers report hundreds of additional deaths. In that same period of time, Islamic terrorists murdered eighteen American civilians.

Now we’re seeing intelligence services and special forces turned even further loose as a Trump presidency looms. Perhaps already a greater danger to the public than terrorism, what will the power of these organizations look like in Trump’s hands? What abuses will be necessary for us to curtail their activities, where those that have already occurred have been insufficient?

Let’s talk Turkey

It’s Thanksgiving here in the US, so naturally I’m going to avoid the kind of turkey with tryptophan and instead talk about the kind with Erdogan. He’s pretty much the opposite of sleep-inducing. Erdogan added another 15,000 people to his post-coup-attempt mass purge this week, bringing the total to one-eighth of a million people, 36,000 of whom are imprisoned.

Americans seem to be paying little attention to this in light of problems at home, but I think we need to be alive to it. This is what purges look like in the world of the surveillance state, and if such things come to the United States, they will look very similar. This isn’t just party officials, high military officers, and the like, as we might have seen in a mid-20th-Century purge. Erodgan has purged secondary school teachers and midwives.

Any public employee who has expressed anti-Erdogan sentiment, or associated with Kurdish organizations, appears to be vulnerable. And because this is 2016 and not 1950, the Turkish government can easily identify and punish even the lowest-level dissenters.

Turkey’s population is slightly less than 1/4 that of the US. Imagine half a million public employees fired for having the wrong opinions. We like to think that couldn’t happen here, but we have to be sure not to let it.

Calling an Alt-Right an Alt-Right

I’m seeing a lot of call in the liberal social media community for media outlets and others to stop referring to the online racist force behind Trump’s support as “alt-right” and start calling them white nationalists, or white supremacists, or Nazis, or Neo-Nazis, or really anything but what they call themselves. ThinkProgress offers this explanation for their policy:

Spencer and Bannon are of course free to describe themselves however they’d like, but journalists are not obliged to uncritically accept their framing. A reporter’s job is to describe the world as it is, with clarity and accuracy. Use of the term “alt-right,” by concealing overt racism, makes that job harder.

With that in mind, ThinkProgress will no longer treat “alt-right” as an accurate descriptor of either a movement or its members. We will only use the name when quoting others. When appending our own description to men like Spencer and groups like NPI, we will use terms we consider more accurate, such as “white nationalist” or “white supremacist.”

“Alt-right” only conceals overt racism to people who didn’t know they existed before two weeks ago, and it won’t for long. Meanwhile, I see each of these alternative descriptions as being either inaccurate or not sufficiently specific. White nationalism and white supremacy are much broader categories, and white supremacy in particular is somewhat fuzzy in definition; if we include everyone who supports institutional structures which benefit whites at the expense of others, virtually every nationally elected official is a white supremacist, including a great many Democrats. This is a huge problem, but it doesn’t help if we don’t distinguish the alt-righters from that huge group.

“Nazi” and “Neo-Nazi” have also been suggested, and while their symbology and some of their attitudes are reflective of the alt-right movement, there are issues with this as well. Nazis were racists and white nationalists, but they also were effective administrators, builders, and scientists. Neo-Nazis have mostly been the opposite: usually local, in-person hobby organizations who don’t accomplish anything and aren’t worth taking seriously. Neither of these things are reflective of the alt-right.

It seems to me that alt-right is a new category: racists of convenience. While white nationalism is a key focus of their activities right now, I have difficulty buying into the idea that they’re thoroughly committed to it. Their behavior, both on the Breitbart News side and the internet forum side, strikes me as a weaponized version of a familiar online archetype: alt-righters are griefers.

For a griefer, white supremacy is a tool, not a philosophy. It gives them something to center the graffiti, property damage, harassment, and greater crimes that they want to do. They’re not going from white supremacy to drawing a swastika, they’re going from wanting to draw something offensive to adopting the swastika and giving lip-service to the philosophy behind it.

This racism-as-meme can still be immensely dangerous. Perhaps even more so. It’s a moving target for those of us fighting it, because if white supremacy becomes untenable or even unfashionable, they can simply move on to the next meme, the next excuse.

So we should be careful not to lump the alt-right into white supremacy, because they have no reason to stay there. They can make the world miserable under the auspices of any number of philosophical systems, and if we let them, they’ll be happy to do so.

Go ahead and call them alt-right. And make sure everyone knows what they are.

Officer Jeronimo Yanez charged in Philando Castile shooting.

A bit of local and national news to start off this blog: St. Anthony Police Officer Jeronimo Yanez, who killed Philando Castile during a traffic stop on July 9th, has been charged with second-degree manslaughter and two felonies for dangerous discharge of a firearm.

Second-degree manslaughter seems appropriate – the applicable qualification is manslaughter due to “culpable negligence whereby the person creates an unreasonable risk,” which perfectly fits Officer Yanez’ known actions. Pulling over the car in the first place was clearly inappropriate, as shown by the dispatch tapes. The firearms charge appears to apply to endangering the two passengers in Castile’s car.

Of all the killings publicized by the Black Lives Matter movement, Castile’s seems the most clear-cut example of police misconduct. (Though perhaps this is local bias on my part.) Castile was racially profiled and pulled over without probable cause, and then this owner of a legal firearm permit, a veteran of many minor encounters with the police, was shot seven times within three minutes of the beginning of the stop, in front of his girlfriend and her young child.

Dashcam footage of the incident was released along with the charges, and amazingly under the stressful circumstances, entirely matched Diamond Reynolds’ description in her livestream immediately following the shooting. Reynolds’ already impressive witnessing becomes even more so with confirmation. Castile identified to the officer that he was carrying a firearm, as provided in Minnesota’s concealed-carry permit law, and Officer Yanez reacted by shooting him.

I had certainly hoped to see charges in the case, and these seem like the right ones to me. This is so clear-cut it seems unlikely it will see a jury.

It’s worth noting that Minnesota’s hate crimes statute exists only to escalate crimes otherwise classified as misdemeanors to become felonies. It is not applicable to serious felony charges as in this case.