Fighting the Schoolyard Bully

Political Notes

by Jon Fuhrman

Wednesday, September 10. Don’t turn a blind eye to a schoolyard bully. Don’t bring a knife to a gun fight.

There was a time, not so long ago, when Michelle Obama’s clarion call – “When they go low, we go high!” – rang true. There were norms and accepted behaviors, universally understood limits and guard rails, shared understandings of what government was and how it should operate. Occupying the high moral ground was seen as politically advantageous, as well as simply being the right thing to do.

But not anymore. Such a time may come again – indeed, I think we all hope it will. But for now, it’s gone. All the rules, all the agreed-upon operating systems, much of what we took for granted – it’s gone.

So what do we do? Ignore the bully? Bring knives to the gunfight? Or do we get down and dirty and fight like hell to protect what we thought was established and inviolable?

The most explicit example of this is the redistricting fight. Over the 200 years that we’ve been doing Congressional districting, no state ever changed the lines between decennial censuses, unless ordered by a court due to the discriminatory drawing of the lines. At least, not until this year, when Texas decided they needed to “find” an additional five Republican members of Congress, since everyone knows that the GOP’s razor-thin margin in the House is likely to vanish during the mid-terms. (And, by the way, the Texas maps were already substantially gerrymandered in 2021 by a Republican Governor and a Republican legislature.)

California led the nation in establishing an independent citizen’s commission to redraw our legislative and Congressional districts. We wholly supported taking this responsibility away from the politicians whose own fate could be decided by drawing those districts. So are we being hypocritical, partisan and/or irresponsible in supporting Prop 50?

Yes, we are changing our position, but only because the larger world has changed around us. We cannot ignore Texas, and other GOP-controlled states like Missouri now jumping on the bandwagon, simply trampling over centuries-old norms to squeeze every last ounce of partisan advantage to keep the House in thrall to President Trump. President Trump is the schoolyard bully. He started this gunfight. We can either lay down, adhere to our traditional norms and higher morality, and get trampled, or we can fight back.

Passing Prop 50 is one critical way to fight back. Incidentally, it does NOT abolish the independent citizen’s redistricting commission. The commission will be reconstituted in 2030, on schedule, after the 2030 census, and redraw the lines for 2032. Further, if we were really interested in securing the maximal political advantage, we would have redone the State Assembly and State Senate lines as well, but Prop 50 leaves them untouched. So this is a temporary, one-off response to the incredibly flagrant attempt to rig the mid-term elections in favor of the GOP and President Trump.

It does, however, redraw California Congressional districts so that Democrats will likely gain five seats (exactly off-setting the Texas redistricting effort). It does that by moving more Democrats into five marginally Republican districts, and also protecting endangered Democratic incumbents by making their districts more Democratic as well.

Will California voters buy this? I think they will. Clearly, the polls are showing President Trump losing support in California, and he didn’t have much to begin with. Interestingly, this seems to be happening in red states as well. In Iowa, Democrats flipped a traditionally red State Senate seat in a special election a few weeks ago. The district had voted 55% - 44% for Trump on 2024; in the special election, only nine months later, the Democratic candidate won 56% - 44%. That’s a pretty massive flip in a solidly red part of Iowa, and there was nothing special about the district or the candidates that would suggest this change was unique to that district.

Another key area in which we are resisting the Trump Presidency is through the courts, and we have some big news there. Last month, I described the efforts to resist the tariffs imposed unilaterally by the President, and how a three-judge panel of the US Court of International Trade (CIT) had unanimously ruled this was a clear abuse of the discretion granted the President. The Trump Administration of course appealed the ruling, and the U.S. Court of Appeals for the Federal Circuit heard the appeal en banc with 11 Judges. At the end of August, that Court issued a final opinion, with a 7 – 4 majority supporting the finding by the CIT that the tariffs were illegal. The Court actually remanded the case to the CIT to reconsider whether their permanent injunction was appropriate under the new Supreme Court guidelines limiting individual district courts’ authority to issue nation-wide injunctions.

Not surprisingly, the Government immediately appealed to the Supreme Court, which acted remarkably quickly in accepting the case for review and scheduling oral argument in November. This is somewhat unusual, in that the Court had already published its schedule for November without this case, but they decided to squeeze it in, presumably because of its extraordinary import.

The Court will have several options. They could overturn the Appeals Court and the Court of International Trade, and determine the tariffs are indeed authorized, or at least implicitly authorized, by the statutes (as 4 of the Appellate Court judges argued in dissent), which would be a full-on, unadulterated, on-the-merits pro-Trump ruling.

Or they could uphold the Appellate Court decision, returning the case to the CIT to determine if their permanent injunction, with nation-wide impact, falls appropriately under the new constraints the Supreme Court placed on district courts. This would likely cycle this issue through the courts for another 1 – 2 years while the tariffs remain in place, although disapproving the Administration’s core argument.

Or they could uphold the finding that the tariffs are patently illegal, and, further, they themselves could approve a permanent, nationwide injunction and then remand to the CIT to work out the details of how to unwind the tariffs already imposed, reimburse those who have already paid these tariffs, and clear the decks going forward – a full-on, in-your-eye rebuke to the Trump Administration.

They’ll need five votes to decide, and I think there are four Justices whose position is not an automatic given. They could try to craft a strained compromise opinion, but the issue is pretty stark and immediate. Huge amounts of money and reputational risk are at stake for the Administration. My guess is that a final decision will come early next year; it will take the Court at least a few weeks to find consensus and draft majority, minority and concurring opinions. It does seem, at least, that the Court appreciates the urgency – and magnitude – of their task.

There has been another sign of resistance on the judicial front, from a particularly surprising source. There’s an old saying that prosecutors can indict a ham sandwich, referring to their ability to convince grand jurors to indict whomever the prosecutors want indicted. This stems from the structure of the grand jury process – the accused is not entitled to be present, cannot present evidence, cannot plead their case, cannot challenge or rebut evidence the prosecutors present – and from the low standard of proof required – not beyond a reasonable doubt, as with a criminal trial, nor clear and convincing evidence, as in a serious civil case, nor even a preponderance of the evidence, but rather merely probable cause – and from the typical composition of grand juries – mostly older homeowners, tending toward the conservative side – and from requiring just a simple majority vote. Together, this conservative juror pool, low standard of proof and hearing only one side pretty much guarantee that prosecutors get whatever they want.

But hold on! Apparently, seven times in the last few weeks grand juries have refused to indict individuals whom Federal prosecutors accused of various misconduct during protest rallies in Washington DC. The grand jurors, whose proceedings are cloaked in secrecy, apparently are telling the Administration to take a hike. This pattern of skepticism, and perhaps outright disbelief, just might start showing up in other venues. It seems clear to me that the hold Trump has had on the populace seems to be not just weakening, but perhaps starting to crack.