Iowa's Judiciary and Hamilton's Warning

Iowa's Judiciary Must Remain Independent
Nicholas Johnson
The Gazette, March 13, 2019, p. A6
Water quality. Education budgets. Healthcare. Opioid epidemic. Workforce development. Tax cuts. All important, all debated under the Golden Dome and in our not-so-golden homes, all appropriate subjects for a democracy’s discussions.

So how are changes in how Iowa appoints its judges different? Because a truly independent judiciary is one of the “columns of democracy” – institutions without which there is no democracy. The court system was deliberately created by our founders as a non-political institution to check the legislative and executive branches and protect citizens’ constitutional rights.

Turning the judiciary into a third political branch of government is like removing one leg from a three-legged stool. A democracy wobbles, falls, and ultimately dies without the supporting columns of democracy, such as the checks and balances of three branches of government, independent judiciary and media.

Many true conservatives are members of the Federalist Society. They’ve read the Federalist Papers, written by Alexander Hamilton, John Jay and James Madison in 1787 to promote the ratification of the new United States Constitution. [Photo credit: Wikimedia Commons; Alexander Hamilton portrait by John Trumbull, 1806.]

They are familiar with what Hamilton wrote in Federalist 78. All Iowa legislators should read it as well. Here are some excerpts:

"There is no liberty if the power of judging be not separated from the legislative and executive powers. Liberty can have nothing to fear from the judiciary alone but would have everything to fear from its union with either of the other departments.”

“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of … designing men, or the influence of particular [circumstances which] sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

“No man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”

“If the power of making [judicial appointments] was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either.”

It is as if Alexander Hamilton had arisen from the dead and walks among us. He was spotted on stage in Des Moines’ Civic Center last June, and his Federalist 78 speaks to us today as if he wrote it yesterday.

True conservatives, who look to the “original intent” of those who wrote our State and federal constitutions, will resist the current lure of instant additional political advantage. They will read Hamilton’s words over again, understand that without a non-partisan independent judiciary there can be no democracy, and do all in their power to oppose those who would further politicize our courts. _______________
Nicholas Johnson of Iowa City is a three-time presidential appointee and author of, most recently, "Columns of Democracy." It will be discussed at Iowa City's Prairie Lights Books, March 30, 4 p.m. Comments: mailbox@nicholasjohnson.org

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Who Are We?

"All That We Share," a production of Denmark's TV2Danmark, was published January 27, 2017. The video is described by the network as follows: "We live in a time where we quickly put people in boxes. Maybe we have more in common than what we think?" (The video was brought to my attention by Gregory Johnson, Resources For Life.)

Trump has in an instant damaged American soft power but we have also seen lawyers flock to American airports to give free advice, while an American judge has ruled that those with green cards and visas can enter. It is heartening to see American soldiers who served in Iraq standing up for interpreters who worked with them. . . . We have seen the worst of Trump's America but also the best of America in the actions of lawyers, judges and people demonstrating for visitors and refugees. . . . President Roosevelt described the Japanese attack on Pearl Harbor in 1941 as a day of infamy. Trump's ill-considered and fruitless actions amount to a self-inflicted day of infamy for America and will long be remembered as the moment that pointlessly alienated America's allies and assisted its enemies.

-- Excerpts from Gary Kent, "America's Sad Day of Infamy," Rudaw [a newspaper and media network based in Erbil, Kurdistan Region of Iraq], January 30, 2016 (for additional excerpts, see below.)
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There is little more that can be or need be added to the world's overwhelming negative responses to President Trump's mean-spirited, ill considered, negligently executed, serious blow to our national security and international reputation from his "Executive Order" restricting immigration by refugees and other individuals from seven designated Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). Made all the worse because he excluded from the ban Muslim countries in which he is doing business, and "Christians" from the seven designated countries (which looks like a violation of the First Amendment's "establishment" and "free exercise" of religion prohibitions).

But I think it is important for all who have access to a blog, or other means of communication, to take a stand at this time for American values. The excerpts from Gary Kent's piece from Kurdistan, recognizing the efforts of Americans to come to the aid of those most adversely and unfairly impacted, is one more reason why public opposition to Trump's action is helpful in retaining as much as possible of America's reputation as a nation of welcoming people. Kent's reaction in this regard is consistent with what I have heard from delegations from Turkey and Russia with whom I met yesterday and today. [Photo credit: AFP.]

So here are some truncated random thoughts about this disaster.

Putting "Terrorism" in Perspective. Obviously, we want, and have every right, to minimize the death and injury of Americans, and damage to our property, from what we call "terrorist acts." (1) But to the extent we're concerned about death, injury and property damage, that which is occasioned in America from "terrorism" is almost statistically insignificant compared with the 400,000 who die from tobacco-related disease, the result of alcohol and drug abuse, or the roughly equivalent numbers (about 35,000) who die from guns or automobile accidents. (2) And to the extent we do care about "terrorist acts" (or "hate crimes" involving death or serious bodily injury) many-to-most are caused by (a) those who would self-identify as "Christian" or non-believers rather than as Muslims, and (b) those -- including Muslims -- who were born in the U.S., or are otherwise legally here rather than refugees or new immigrants. (3) The handful Trump describes as "radical Islamic terrorists" in the U.S. have for the most part (and perhaps exclusively) been known to law enforcement and were "radicalized" here in the United States. In short, the return on this investment of time, effort, money -- and loss of American goodwill -- is not likely to produce much return.

[Since writing this I came upon a CNN presentation, consistent with what is written here, including the fact that you have only a 00.00003% chance of being killed in a foreign-born terrorist attack in the U.S. A.J. Willingham, Paul Martucci and Natalie Leung, "The Chances of a Refugee Killing You -- And Other Surprising Immigration Stats," CNN Politics, January 31, 2017. And see, Philip Bump, "The White House would like America to focus on terror attacks. Let's add context," Washington Post, February 8, 2017.]

Putting the Seven Countries in Perspective. I'm not going to do the research and produce the links to document what follows in this paragraph. But I believe it is a fair reading of what I've seen so far to say that (1) none of the seven countries Trump has chosen (originally singled out by President Obama for other reasons) have produced Muslims who have carried out terrorist attacks in the U.S., (2) he has excluded from his designated list countries those that have produced terrorists who attacked America (e.g., most of those involved in the 9/11 attacks on New York's Twin Towers came from Saudi Arabia), and (3) he has also excluded Muslim countries in which he has business interests. Whatever else one may think of this travel ban, this approach is simply irrational in terms of the stated purpose of the exercise: "to keep Americans safe." If there really were a serious likelihood of a flood of immigrants and refugees coming into the U.S. to do us harm -- because of their Muslim religion -- for which there is no evidence of which I am aware or to which Trump hinted, then the ban should have been applied to all countries with substantial Muslim populations. If a selection of countries was to be made, it would have made more sense to select those, based on past history, most likely to produce those wishing to do us harm rather than these seven.

Was Trump's travel ban an "anti-Muslim" action? He appeared to be stirring up Islamophobia among his supporters during his campaign, promising to do something like what he has just done. And even more telling is what Rudy Giuliani reports regarding his exchange with Trump. Amy B. Wang, "Trump asked for a 'Muslim ban,' Giuliani says -- and ordered a commission to do it 'legally,'" Washington Post, January 29, 2017 ("Former New York mayor Rudy W. Giuliani said President Trump wanted a 'Muslim ban' and requested he assemble a commission to show him 'the right way to do it legally.' Giuliani . . . appeared on Fox News late Saturday [Jan. 28] night to describe how Trump's executive order temporarily banning refugees came together. . . . 'How did the president decide the seven countries?' [Fox News host Jeanine Pirro] asked. . . . 'I'll tell you the whole history of it,' Giuliani responded eagerly. 'So when [Trump] first announced it, he said, "Muslim ban." He called me up. He said, "Put a commission together. Show me the right way to do it legally."'")

Putting the Process in Perspective. The chaos and crises that have followed Trump's action is as good a case study as could be found of why we have government departments and agencies to aid the White House staff and president. Why we have a professional, well-educated, experienced, dedicated, patriotic civil service, bringing their well-informed experience and judgment to bear on why and how some proposals should be pursued and others should not. It appears Trump's idea was not vetted; those who could have helped were not consulted; those who would have to execute it were not informed. For someone who claimed the ability to bring sound American business practices to government, this looked more like someone headed for bankruptcy -- as indeed Trump did when he couldn't even make gambling casinos profitable.

This could go on and on, and you may think it already has. There is much more that could be said, none of it positive. It would be bad enough if imposing travel bans on another country's entire population of a given religion were merely ineffective. In this case, it's much worse. The backlash has already started. Iran has launched a missile, other countries' cabinet officers have been turned away, our universities' international students are nervous, those with "green cards" were initially turned away (before that insanity was walked back), those who served our military as interpreters are not being provided the protection they were promised, American overseas military and tourists are at greater risk, global commerce and airline operations are suffering.

Welcome to the world of government by tweets. Sad.

Who are we? If you didn't watch the video at the top of this blog essay when you began reading, watch it now. That's who we are. That's who we need to rise up and demand we will continue to be.


Additional Excerpts from Gary Kent, "America's Sad Day of Infamy," Rudaw, January 30, 2016

Many feared the worst of President Trump while others hoped he would become more presidential. Such hopes have been dashed by his edict on "extreme vetting" that Times columnist Roger Boyes says is "the bluntest of blunt instruments, sledgehammer-politik." . . . It was announced on Holocaust Memorial Day which reminded people of restrictions preventing Jews escaping the Nazis in the 1930s and ending up in death camps. . . .

Quick footwork by Foreign Secretary Boris Johnson, who persuaded the American authorities to modify the presidential decree so it largely does not apply to British citizens, will slightly lessen the issue. But expect more heartbreaking stories of family division, people being unable to visit dying relatives, start jobs while hundreds of Iraqi interpreters are reported as being in a visa limbo. Daesh must be rubbing its hands in glee. . . .

Our fear last year was that this would chill investment as people found out that going to Kurdistan would complicate later visits to the US. International business groups have expressed fears that the latest ban will harm them. No one denies that the US has the right to patrol its borders and to prevent terrorists from entering the US. But there is no evidence that current measures are failing or that a blanket ban is necessary. . . .

Trump has in an instant damaged American soft power but we have also seen lawyers flock to American airports to give free advice, while an American judge has ruled that those with green cards and visas can enter. It is heartening to see American soldiers who served in Iraq standing up for interpreters who worked with them. We will see in the near future whether further changes can be made and whether the State Department can induce Trump to find a face-saving formula to rescind the order soon. . . .

Trump will probably continue to govern in this disruptive, defiant and divisive manner and this presents big difficulties for America's allies. . . . [Former British Foreign Minister Alistair Burt] suggested that a diplomatic excuse for postponing Trump's planned state visit to the UK in the summer might be wise.

We have seen the worst of Trump's America but also the best of America in the actions of lawyers, judges and people demonstrating for visitors and refugees. . . .

[Professor Eliot Cohen, a former adviser to Secretary of State Condoleezza Rice] writes in The Atlantic that: "Precisely because the problem is one of [Trump's] temperament and character, it will not get better." Cohen argues it will worsen as power intoxicates Trump and those around him, and probably end in calamity such as substantial domestic protest and violence, broken international economic relationships and major alliances, and one or more new wars, even with China. He would not be surprised if Trump is impeached.

More optimistically Cohen concludes that "There is nothing great about the America that Trump thinks he is going to make; but in the end, it is the greatness of America that will stop him." The ban may be further modified or lifted but leaves a lingering bad taste.

President Roosevelt described the Japanese attack on Pearl Harbor in 1941 as a day of infamy. Trump's ill-considered and fruitless actions amount to a self-inflicted day of infamy for America and will long be remembered as the moment that pointlessly alienated America's allies and assisted its enemies.

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