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To My Fellow Conservatives: The Judiciary is NOT Worth It

by D.J. McGuire

The behavior and policies of the president continue to shock and to dismay – especially for conservatives such as myself (yes, I still use the noun). Freer trade is tossed aside for crippling tariffs amid complaints over “bad deals.” The dynamic information technology sector has become a target for nationalization among screaming heads such as Laura Ingraham. Allies are smeared where hostile tyrants are feted. Yet through it all, a large chunk of right-wing and center-right voters are, for now, staying with the withering husk that is the Republican Party for one reason and one reason alone – “the courts.” This post is my attempt to persuade them why this argument is a profound error.

Today’s Issues v. Tomorrow’s Issues

The first problem with the assertion that control of the judiciary branch is worth the exponentially increasing damage of the Trump presidency is that such control is specious at best. The issues that divide “liberal” (or if you prefer, “progressive”) and “conservative” in 2018 are not likely to be the issues that divide them in 2030, or in 2040, or in 2050. Unlike financial investment, past performance is an excellent indicator here.

Dwight Eisenhower selected as Chief Justice one of the most conservative office holders in the Republican Party – California Governor Earl Warren. Known at the time as a strike-breaker and a firm supporter of limited government, Warren’s libertarian outlook was given an entirely different label as social issues and law enforcement matters crashed into the public realm in the 1960s. Ike’s own Vice President became one of Warren’s top political critics. Nixon replaced Earl Warren with Warren Burger, who became one of the five Republican appointees to the Court to side with the majority in Roe in 1973The author of the dissent in that case was Byron White – the lone appointee of John F. Kennedy. Thirteen years later, Berger would change his own mind on the subject (yet another sign that ideological consistency on the Court doesn’t survive the passage of time).

The intervening decades have seen similar acts of temporal confusion. Donald Trump spent his campaign praising the late Antonin Scalia – the justice who cast the fifth vote the declared burning the American flag as constitutionally protected speech. While Bush v. Gore has become a bete-noir for much of the left in America, it’s not remembered that half of the Democratic appointees to the Court agreed to invalidate the Florida recount on which Gore’s last gasp depended (although none agreed with the smaller majority that insisted there wasn’t enough time to conduct a more proper recount there). Five years later, conservatives were thrilled when President Bush appointed John Roberts as Chief Justice. He was considered a sure-fire conservative…who cast the fifth vote to declare that the Affordable Care Act was constitutional – over the objection of “moderate” Anthony Kennedy.

What issues will drive conservatives in the 2020s and beyond? We really don’t know. As noted above, the right seems much more willing to regulate cyberspace today than even five (or two) years ago. Any attempt to nationalize Google will likely run into trouble from the very conservative court appointments that the right champions today. If the president attempts to exit trade deals without Congressional agreement (and largely in violation of the law), conservatives eager to rebuild Fortress America will find Bush and even Trump appointees in their way.

In other words, past and present “betrayals” of conservatives came not merely from judges and justices changing their minds (although that does happen), but also from electorate redefining what “conservative” means. Thus we find Reagan appointees invalidating laws against marriage equality in California and allowing charges against Paul Manafort to go forward (to conviction) in Virginia, among other things. I am all but certain Trump appointees will disappoint future conservatives, in part because they will take position that would make present conservatives (myself included) blanche.

The one exception to this may be the abortion issue. Indeed, nearly every conservative who still calls themselves a Republican cites it as the one reason they stay in the GOP. There is a problem with that, however.

Reversing Roe/Casey is a defeat disguised as a victory

As I was a politically precocious teenager, I’m in an increasingly unique position among any American under 50 – I remember what it was like when the judicially-imposed right to an abortion appeared to be coming to an end. It was after the Webster decision of 1989 weakend Roe, but before Casey v. Planned Parenthood reaffirmed it. Keep in mind, this was less than two decades after Roe, when the status quo ante was a real memory for most Americans.

For pro-lifers, it was a disaster. Pro-life Republicans were vanquished in 1989 elections, and pro-lifers in both parties were banged up in 1990 (as an example: a pro-life Democratic Governor in Minnesota was defeated by a pro-choice Republican challenger who had only been on the ballot nine days). Conservatives ran to the safety of economic issues in 1991 (and recovered nicely in the 1989 states’ legislative elections). George Bush the Elder went from 53% of the vote in 1988 to 38% in 1992 (and his two opponents – Ross Perot and Bill Clinton – were not pro-life by any stretch).

A quarter-century later, there are far fewer voters who remember the pre-Roe era, let alone look forward to it. Even if the Supremes reverse Casey, far fewer states will attempt to ban abortion than people realize. If anything, pro-choicers vocalizing their worst fears (albeit understandably so) are providing pro-lifers with their most perverse hopes. Odds are, both are wrong. For too long, abortion opponents have focused on changing a Supreme Court decision instead of saving children. The rest of the country has noticed, and is not happy.

The Benefits of “winning the courts” are ephemeral, but the cost is sure to be permanent.

Is this truly worth the damage Trump has wrought, my fellow conservatives? Is the chance to be disappointed by judges who change their minds (or by those who don’t when you do) truly worth the rupturing of our alliances? Is the erection of damaging barriers to trade really an acceptable price for the opportunity to be caught completely flat-footed due to forty years of political atrophy and neglect on the one issue that you claim is so important?

Before you answer, consider one more piece of historical evidence. The most politically charged Court decision of the 19th century was Dred Scott v. Sanford.

How well did that turn out for the victors?

D.J. McGuire – a self-described progressive conservative – has been part of the More Perfect Union Podcast since 2015

Supreme Court Bans Union Fees on Non-Members (Except Where It Doesn’t)

by D.J. McGuire

The more one reads primary source material, the less trustworthy one becomes of media – any media.

Today’s example came in Janus v AFSCME – the Supreme Court cases regarding mandated union fees paid by non-union members in government workplaces in over 20 states (including Illinois, whose disgruntled public servant was Mark Janus). As the media reported it, public sectors unions are now barred from charging any non-union members for services rendered. As the labor movement itself reported it, the Court turned off a revenue stream that will make organized labor itself unsustainable. As the right celebrated it, the Court turned off a revenue stream, thus making organized labor a more muted voice in the political realm.

I’ve had discussions with fellow MPU-er Kevin Kelton on how unions can recoup costs from non-union members they represent, so this decision intrigued me as an economist. Moreover, I’ve seen journalists foul up the actual story more than enough times to decided it was best to peruse the decision myself. What I found was eye-opening (all cited quotations below come from the link above).

First thing to remember: the decision applies to public sector unions only. Private sector unions were not directly involved in the suit. Secondly, the particular fee in question is “an ‘agency fee,’ which amounts to a percentage of the union dues.” Moreover, Illinois law…

 …does not specify in detail which expenditures are chargeable and which are not. The IPLRA provides that an agency fee may compensate a union for the costs incurred in “the collective bargaining process, contract administration[,] and pursuing matters affecting wages, hours[,] and conditions of employment.” 

In other words, there is no real rhyme or reason to the fee amount set. Mr. Janus, thinking the fee arbitrary and an effective compulsion of his financial support for the union, sued to have it dropped. The majority of the Court agreed.

From there, media and pundits go off the rails in a rather ironic fashion -namely, by standing still. Upon seeing that the percentage fee was banned, everyone now assumes that all fees for non-members were banned. That concerned me, because union services provided to non-members at a mandated price of zero runs afoul of my visceral disgust for price controls of any kind. So I read further into the decision to see if the Court majority addressed the issue – known as the “free-rider” problem, which is not the term I would have used, but…

The court began in the legal realm, flatly noting that “As we have noted, ‘free-rider arguments . . . are generally insufficient to overcome First Amendment objections.’ Knox 567 U. S., at 311.” Then they get into the economic landscape, and here’s where it gets interesting.

First, with collective bargaining power and duties, the Court notes that numerous benefits come with the designation as the sole negotiating entity. Moreover, discussion on cost of expanding that responsibility to include non-members was…lacking.

It is noteworthy that neither respondents nor any of the 39 amicus briefs supporting them—nor the dissent—has explained why the duty of fair representation causes public-sector unions to incur significantly greater expenses than they would otherwise bear in negotiating collective-bargaining agreements.

That’s either a terrible omission by all listed, or an admission that collective bargaining is a fixed cost that isn’t dependent upon the number of workers – member and non-member – being represented. That said, collective bargaining isn’t all a union does for its members – or non-members. The Court majority had something to say about that, too (emphasis added).

In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matter scan be eliminated “through means significantly less restrictive of associational freedoms’ than the imposition of agency fees.” Harris, 573 U. S., at ___ (slip op., at 30)(internal quotation marks omitted). Individual nonmembers could be required to pay for that service or could be denied union representation altogether.

That led to a footnote with an example (emphasis added).

There is precedent for such arrangements. Some States have lawsproviding that, if an employee with a religious objection to paying an agency fee “requests the [union] to use the grievance procedure or arbitration procedure on the employee’s behalf, the [union] is authorized to charge the employee for the reasonable cost of using such procedure.” E.g., Cal. Govt. Code Ann. §3546.3 (West 2010); cf. Ill.Comp. Stat., ch. 5, §315/6(g) (2016). This more tailored alternative, if applied to other objectors, would prevent free ridership while imposing a lesser burden on First Amendment rights.

In other words, the Court ruled the public sector unions cannot charge an undefined fee, but can charge a defined fee for services rendered – except for collective bargaining, where the services to nonmembers appear to be at no cost.

Thus the decision is far narrower than many believe. It never touched private sector unions, and contrary to what you may hear or read, it does not completely eliminate public sector unions’ ability to recoup costs.

D.J. McGuire – a self-described “progressive conservative” – has been part of the More Perfect Union Podcast since 2015.

The Solar Wall (Ep. 105)

This episode of The More Perfect Union podcast looks at President Trump’s idea for a solar-powered border wall, what it will mean for the country if Supreme Court Justice Anthony Kennedy retires, and what it will mean for Democrats if Jane Sanders’ legal troubles take Bernie down with her.

Like what you heard? Subscribe on iTunes and don’t miss a podcast! 

And if you like talking politics, join us in our Facebook political debate group, OPEN FIRE, where you can discuss news and politics with Kevin, D.J., Greg, Rebekah, Cliff, Helena, Molly, and lots of other smart, fun people.

Only Republicans “Forced” The Nuclear Option

by Kevin Kelton

In the days since Senate Republicans voted to overturn the Democrat’s filibuster and confirm SCOTUS nominee Neil Gorsuch on a mostly party-line 54-44 vote, I’ve seen many respected journalists and not-so-respected bloggers describe the event as the Democrats “forcing” the GOP to invoke the nuclear option.

The Democrats did nothing of the kind.

What did happen is, the GOP voluntarily and willfully broke the long-standing rules of the senate by arbitrarily rewriting them. Read More

A Stolen Seat; A System Betrayed

By Rebekah Chodoff Kuschmider

So, I’ve been stewing since Sunday night. For those of you who tuned in to The More Perfect Union “After Dark” episode that was released this week, you were treated to a heated and emotional discussion between myself, Kevin, and Helena about the state of the Supreme Court nominating process. It was in the middle of that discussion when I realized how deep my feelings of anger and betrayal actually are regarding the nomination and subsequent treatment of Merrick Garland last year.

Read More

Shadow of Scalia Falls over South Carolina

Segments:

GOP Debate

Democratic Debate

The Open SCOTUS Seat

Nevada, South Carolina and beyond