Nobody panic!

I woke with a start yesterday morning realizing that I had forgotten to be worried about the Supreme Court for a few days.  And then I imagined for a split second that everyone had forgotten to be worried about the Supreme Court for a few days.  Which, I went on to worry, might mean that we’ve all just given up on it and Neil Gorsuch will become the new Associate Justice.  And that leads inevitably to the conclusion that the resistance is over and Democracy is dead.  Ever had a moment like that? Let’s unpack it.

First, it goes without saying, of course, but I clearly need to hear it, that “everyone” is neither the same as nor controlled by me. Just because I have spent the last few days worried about something other than the Supreme Court does not mean that everyone has too.  Indeed, there are very smart, competent, awake people whose entire jobs are to remember to be worried about the Supreme Court.  My job is to support those people, lend my voice and body in encouragement and follow their lead.   So humbling to be reminded just what a small part I play in this great performance of resistance we are producing.  And such a relief.

But even if “everyone” had focused exclusively on the emerging and ongoing crises of, oh I don’t know, Russia, immigration, legally enshrined transphobia, interference of the White House into the independence of the Justice Department, the Dakota Access Pipeline, what have I missed? Even if the entire country forgot to be worried about the Supreme Court for a few days, that absolutely doesn’t mean that we’ve all just given up on it and that Neil Gorsuch will become the new Associate Justice.  One of the savings graces of our republic’s governance structure is that things do not happen overnight.  It’s not ideal, but taking our eyes off the road doesn’t mean that we’ve given up on getting to our destination.  It means we might need to slow down and take a deep breath, we might even need to pull off the road and check our various resources, both internal and external.  But – or and — then we get back on the road newly energized and ready and able to keep moving forward.

And finally, even if (when?) Neil Gorsuch becomes the new Associate Justice, Democracy will not be dead, the resistance will not be over.  Far from it.  Our success at resisting the Trump and Republican Administration is not measured by how many nominations we block or bills we defeat.  It is measured by our ongoing commitment to inclusive, democratic values as our guide in all actions of resistance.   Neil Gorsuch will become the new Associate Justice only after we have made a lot of noise geared toward holding those in power accountable:  not only for nominating/appointing a jurist who falls well outside the mainstream of American legal thought and practice; but also for failing to abide by basic rules of democratic governance (e.g. not giving Obama’s appointee even a hearing).  I find it very hard to imagine that “everyone” in our great country will forget to worry about that for very long.

There’s a lot of noise out there, folks, accompanied by a lot of shiny objects – some of which seem really sharp.  Don’t let it distract or discourage you.  We are all doing exactly what we are supposed to be doing.  Just pay attention.

Look for the helpers

This isn’t the post I thought I was going to write today.  I’ve been working on a different one — a bit of a rant about the skewed priorities of the Justice Department, choosing to enforce mass deportations but not to pursue FBI investigations against General Flynn.  Not to mention the blatant interference by White House staff into Justice Department matters. Who is making these decisions, again I ask you?

But I’ve put that post aside, at least for now, because I want to pay attention to the energy I am expending and sending out into the blogosphere.  As the perhaps mythical “Robert” reminded us the other day, we have to remember to breathe,  and trust that others will sing; then we will sing and others will breathe.  It can’t all be outrage.

Today, my breath comes from Mr. Rogers:

Who are the helpers — the individuals or communities that act against their self-interest, or outside their expected role, to try to make a situation better, or at least less awful.  Here is who is helping me breathe today:

And that’s just off the top of my head.  There are helpers everywhere you look.  In addition to the list I’m keeping of communities harmed, I am now keeping a list of helpers.

Have a good weekend.

Transparency leads to Accountability

All those unfilled spots in the Executive Branch.  The Washington Post and Partnership for Public Service have created an amazing tool tracking the 594 positions in the Executive Branch that require Senate Confirmation.  It’s worth everyone’s time to scroll through this database and get to know the inner workings of the Executive Branch.

I’ll bottom-line it for you though:  of the 594 positions that require Senate confirmation, 14 have been confirmed; 20 are awaiting nomination; and 515 are “awaiting nomination.”  Awaiting nomination? That means no one has been nominated for those posts.  94% of positions that require Senate Confirmation are empty, 515 of them with no apparent hope of being filled anytime soon.

This should lead all of us to the question:  who is making decisions, giving orders, and taking action in the Executive Branch? The answer is:  we don’t know!  And it seems to me that that is precisely the point.  The President and his (largely unknown) staff are not lazy or forgetful or disorganized – I mean they might be, but that is not why these positions remain empty, and will, I believe, for the foreseeable future.  No, this is a conscious, intentional consolidation of power among the very few at the very top.

This Administration and its Republican enablers in Congress refuse to allow themselves to be held accountable for their actions.  The more opaque and confusing their actions and personnel structure, the harder it is call anyone out.  And, as long as the positions aren’t filled, there aren’t many people on the inside to call foul, let alone to whistle blow.

The media, for the most part, is doing its job of pointing out all the empty positions and bizarre staffing choices; the resistance is doing its job of calling it out and holding to account as much as we can.  But who is actually doing the job of making decisions and taking action? We don’t know! And that seems to be how the Administration wants it.

So keep paying attention, and keep filling out those charts!

Take a breath — Pass it on

Sometimes someone else says what I want to say so perfectly, it seems silly to try to say it differently myself.  So today’s blog post is courtesy of a resister known only as “Robert” from NY (I found his words at — an excellent resistance blog!):

“This morning I have been pondering a nearly forgotten lesson I learned in high school music. Sometimes in band or choir, music requires players or singers to hold a note longer than they actually can hold a note. In those cases, we were taught to mindfully stagger when we took a breath so the sound appeared uninterrupted.

Everyone got to breathe, and the music stayed strong and vibrant.

Yesterday, I read an article that suggested the administration’s litany of bad executive orders (more expected on LGBTQ next week) is a way of giving us “protest fatigue” – we will literally lose our will to continue the fight in the face of the onslaught of negative action. Let’s remember MUSIC.

Take a breath. The rest of the chorus will sing. The rest of the band will play. Rejoin so others can breathe. Together, we can sustain a very long, beautiful song for a very, very long time. You don’t have to do it all, but you must add your voice to the song. With special love to all the musicians and music teachers in my life.”

Let’s take turns breathing AND singing, friends.

Then they came for . . .

In yesterday’s post, I mused about how to sift through the noise to get to the actual News.  One technique I use is to pay attention to what the Administration does, not what it says; another is to pay attention to action taken on what each of us considers the Big Issues.  I keep a list of those issues as I see them – so far, I am closely watching actions the Administration has taken/is taking on Russia, Immigration, Judicial System, Reproductive Freedom, Functioning of Executive Branch and Freedom of the Press.

Another way of sorting through the noise to get to the action is to make lists of who has been/is being harmed. You know, as Martin Niemoller warned us (more or less):

First they came for the [women who need health care] and I did not speak out—
Because I was not a [woman who needed health care]

Then they came for the [Muslims and refugees], and I did not speak out— 
Because I was not a [Muslim or refugee]

Then they came for the [undocumented immigrants], and I did not speak out— 
Because I was not [an undocumented immigrant].

Then they came for [the media]—and I did not speak out – Because I was not [a member of the media]

But wait, that’s not right.  Along with listing those who have been/are being harmed, we also need to list those who are standing up in response (i.e. all of us!). So let me rephrase:

First they came for the [women who need health care] and — over 4 million people worldwide took to the streets in the largest demonstration in U.S. history.
Even though not all of them were [woman who needed health care].

Then they came for the [Muslims and refugees], and – thousands flooded airports and borders in support, and judges and lawyers held the line.
Even though not all of them were [Muslims or refugees]

Then they came for the [undocumented immigrants], and – tens of thousands of citizens pledged to put their bodies on the line to stop deportations, and lawyers keep fighting
Even though not all of them were [undocumented immigrants]

Then they came for [the media]— . . . .

And now it’s up to us.  Freedom of the Press is the cornerstone of a free and open democracy.  That’s Civics 101, and high school level First Amendment law.  All presidents have difficult relationships with the press – precisely because of the First Amendment’s guarantee that the press should be free to criticize and, yes, hold accountable those in power.  Efforts by American presidents to shut down the media are as old as our system of government, but that does not make them any less dangerous.  And this president’s efforts are very dangerous indeed.

Now let me be clear, I am not talking [only] about what those in power are saying; I’m talking about what those in power are doing.

Specifically, who is being called on in White House Press Briefings? Pay attention to that.

Specifically, who is getting White House Press credentials? Pay attention to that.  Look! It’s the “Twinks4Trump” guy!  The same one who has been called a “dangerous troll,” a “conservative mouthpiece” and an “alt-right activist.”

Specifically, who is the lawyer representing Melania Trump in her suit against the Daily Mail for its false allegations that she had been an escort in the 1990s?  Remember “Gawker”? The publication that had to fold when a jury awarded Hulk Hogan $140,000,000 after Gawker published Hogan’s “sex tape”? Did you know that the legal strategy for that suit was specifically and expressly to make the publication shut down? THAT’S the lawyer representing Melania Trump against the Daily Mail.  Pay attention to that.

Specifically, what about “alternative facts”? And “fake news”? Yes, that was a lot of talk, but, as with his tweets about the “so-called judge,” I believe these attacks amount to dangerous action.  And so does Bret Stephens, of the Wall Street Journal, whose remarks on the issue were published in Time:

We ought to assume that [Trump’s media strategy] is darkly brilliant — if not in intention then certainly in effect. The president is responding to a claim of fact not by denying the fact, but by denying the claim that facts are supposed to have on an argument.

He isn’t telling O’Reilly that he’s got his facts wrong. He’s saying that, as far as he is concerned, facts, as most people understand the term, don’t matter: That they are indistinguishable from, and interchangeable with, opinion; and that statements of fact needn’t have any purchase against a man who is either sufficiently powerful to ignore them or sufficiently shameless to deny them — or, in his case, both. (emphasis added by me)

 They are coming for the media.  Who is going to speak out? We are, of course.  By continuing to read and watch and listen, and by using our own good judgment and critical thinking skills to dull the noise and amplify the real threats.  We also need to expand our media diet beyond our familiar – podcasts, local papers, blogs, radio shows – and force ourselves to sit quietly while people we don’t agree with speak.  And we need to be vigilant not to elevate “fake news” coming from the Left, but to dig deeper and investigate sources and facts on our own, however we can.

These lists are going to get longer – many of our fellow Americans are living through new immigration nightmares even as I write this.  We need to keep paying attention.

Keeping a List, Checking it Twice

I read and watch and listen to a lot of news, all day, every day.  I know I shouldn’t.  Or at least I shouldn’t without reflection and intention.  So I’ve developed various systems for moderating (rationalizing?) my news consumption.  One of those systems is to ignore the noise – to experience the Trump Administration and all its attendant gunk as a silent movie (thanks @rachelmaddow for that one).  Watch what they do, not what they say.  That’s technique number one.

Technique number one leads to technique number two:  sorting.  Sorting requires attention — it’s hard to tell amidst all the sound and fury what is real and what signifies nothing. So I have started keeping a list of real things – not that the Administration is talking about (that list would be way too long!), but that the Administration has actually taken action on:

Russia — Michael Flynn, of course, but also Administration efforts to undermine, diminish, discredit investigations.  And back channeling about Ukraine apparently going on between Putin’s people and Trump’s people (I don’t know their titles or roles, of course, because they have not been vetted, approved, or even introduced to the American people):

Immigration – the Executive Orders that target Muslims and refugees, of course, but also the one that has made the new wave of deportations and detentions possible.

Judiciary – the appointment of Neil Gorsuch, of course, but also the rhetoric from the White House about the Ninth Circuit and Washington District Court Judge. Although Trump’s tweets are technically “just talk,” messaging to the American people that the Judiciary is too “political” to be credible, and that the president’s actions are “unreviewable” by the Judicial Branch rises to the level of action, in my book.

Functioning of Executive branch – where to start with this one? is a good wrap up, but this one is really where we need our updated charts and diagrams.

Women’s Health – Mike Pence’s appearance at the annual “March for Life,” of course, but also the signing on Day One of Trump’s presidency of an order reinstating the “Mexico City Policy.” Also known as the Global Gag Rule (GGR), this policy prohibits organizations that receive U.S. international family planning funding from engaging in any activities related to abortion. They cannot even use their own non-U.S. funds to lobby for or against abortion, speak about abortion issues, provide referrals or information on where to get a safe abortion, or provide abortion care.

Freedom of the Press – there is a lot of talk around this one. Awesome editorial in the Dallas Morning News about the recent “enemies of the American people” tweet: But I’m also paying attention to what Trump and his crew are up to.  Did you know, for example, that Melania Trump is using the same lawyer who drove Gawker out of business to try to shut down the Daily Mail? That seems worth watching.

This list is by no means exhaustive.  I know big stuff is happening in National Security too, and am trying to pay attention to that; same with the Affordable Care Act.  Has the Administration actually done something on that, or is it all Congress? What else have I left out? My list is necessarily bounded by my own abilities to gather, analyze and assess information.  So it is by definition incomplete.  As we know, part of resistance is trying to hold power accountable; and we can’t hold accountable if we don’t know who is doing what where.  So we all need to be keeping lists like this one — we all need to keep  paying attention.

Diagramming the Executive Branch

We need a chart.  Because, as my muse reminds me, “there’s a play being played out and people need to know what people’s jobs are so that they can know when they’re not doing them.”

Knowing the names of things — including job titles and duties — is a way of keeping track, holding accountable, paying attention, and, if necessary, pushing back.  So we need a chart.  Or a bunch of charts.

The first chart we need is the basic civics chart:  three branches of government.

3 Branches of U.S. Government infographic

Great, so the Legislative Branch makes laws; the Executive Branch carries out laws (huh, that’s interesting — what about Executive Orders?); and the Judicial Branch evaluates laws.  Let’s take a look more closely at the Judicial Branch:

US Court System

So the Supreme Court is at the top of this system of “lower” courts of various jurisdictions, and is the ultimate arbiter of constitutional questions, and conflicts among those lower courts.  That helps, certainly, but it is not enough.

We also need a chart of the Executive Branch cabinet and agencies.  Get our your readers and magnifying glass — the small print is the important stuff.  And there’s a lot of it.(

There, that clears things up.  Not really, right? It’s definitely a start, to give us some grounding.  But we need specifics.  Is this chart even accurate for the current Executive Branch?  It is, after all, from the simpler and more innocent days of . . . 2014.  So who are the people filling all these roles?   Where, for example, would Steve Bannon and Kellyanne Conway appear?

We need to know these things so we know who to hold accountable for actions and omissions that affect our daily lives, not to mention our future and the future of our country and the world.  These charts are fairly generic, based on almost three centuries of practice, tradition and reflection.  Are they still relevant? Do they represent what is actually happening in Washington?

Who is actually doing what, under whose direction, with what accountability? That’s the set of charts we need — and they don’t exist yet.  So we need to start creating our own diagrams of every “crisis” that emerges from this White House.  And we need to follow these diagrams down to the name of the person actually writing the memo or making the phone call; and up to the name of the person directing the whole thing.  Only then will we be able to see how this Executive Branch actually works; and whether any real checks and balances exist. (We have that sinking feeling that they don’t.)

So let’s get our pencils and graph paper out and start diagramming.  I can’t decide if I should tackle the firing of General Flynn or the withdrawal of Andrew Puzder first.  Fun weekend ahead!


Days without Immigrants

Today is “Day without Immigrants” day all over the country.  In cities large and small — including here in the Twin Cities — immigrants and refugees and their supporters are staying home from work and school, and refraining from spending any money, if possible.  Others are participating in protests and rallies and demonstrations in support of immigrants and refugees and opposing the Administration’s policies — Muslim Ban, Refugee Ban, Wall.   Many businesses are showing their solidarity with and support for these communities by shutting down voluntarily.

Social media is full of the usual ugly backlash which I don’t need or want to amplify here.  But I was struck by one post I saw suggesting that because today is Day without Immigrants, “Tomorrow is ‘Can I see Your Work Papers, Please Day.'”  The poster went on to crow about how she plans to use today to gather evidence about undocumented immigrants — presumably by seeing which establishments shut down, and which employees don’t show up to work — to send to ICE tomorrow.

The ugly self-righteousness of this post turned my stomach.  I don’t know anything about the poster — it was on a public site, so I have no connection to them.  But are we really so blind that we don’t understand the role immigrants — of all status — play in our national economy and character?

Both of my parents were born in the U.S.  My father comes from a long line of “Americans” — dating back to the Mayflower.  His first “American” ancestors were the children of English, French and German immigrants in the 17th century.  How, we wonder, were those immigrants welcomed when they arrived? What kind of papers were demanded of them? But that is a discussion for another day, perhaps.

My mother is the first person in her family to be born in the U.S. Both of her parents emigrated to the U.S. in the mid 1930’s, fleeing from persecution — as Jews — in Europe.  I don’t know much about my grandfather’s arrival here, but I do know that my grandmother came here with her parents and her brother on the last transatlantic ocean liner before World War II broke out.  Our (possibly apocryphal) family story is that my great-grandfather — who had run a successful business in pre-Soviet Russia before having to flee the Bolsheviks in the early 1920s — walked into Chase Manhattan Bank in Manhattan “with nothing but a dollar and my name.”  The bank gave him a loan, and he went on to build a successful international export business.

What if instead of giving him that loan, the Bank had turned him in to immigration authorities? He and his wife and two teenage children — my grandmother and great uncle — would have been sent back to Europe.  As many other unlucky refugees were.  And this blog would not exist.  To say the least.

So the nut I continue to worry today is our apparent determination to forget, ignore or rewrite history.  And I’m not talking ancient Roman history, I’m talking about our own history — literally what our parents and grandparents and great-grandparents lived through.  It’s a cliche, I know, but we do seem pretty doomed to repeat the past.  We need to pay attention, people.  We’ve been through this before and we know how it ends.

All are welcome here.

Learning about the Rule of Law

Mere minutes after Trump’s “so-called Judge” tweet – which twittered into the atmosphere on a Saturday morning – my faculty email lit up like the Congressional switchboard of late.  And Mitchell Hamline’s faculty is by no means alone. Law professors and lawyers around the country are deeply concerned about the President’s language and attitude toward the Judicial Branch.  Many of my colleagues share my disappointment and personal sorrow at this attack on a system we are all – as officers of the court – sworn to uphold and protect.

At the same time, we are witnessing an unprecedented interest in and support for that very system.  Tens of thousands of people tuned in to listen to the audio – not even video – of oral arguments on a restraining order before a three judge panel of the 9th Circuit Court of Appeals.   All kinds of media attention has been paid the lawyers who rushed out to airports to help refugees and immigrants; those lawyers hailed as heroes of the resistance.  Nightly news has been full of discussions of standing and “likelihood of success on the merits” and standards of review.  It’s been like law professor porn!

So here’s what I’m learning:  the American people want to understand what is going on.  And not just the radical fringes of left and right.  No, that vast middle – both those who did not vote for Trump and those who did – watched CNN and tuned in to the oral arguments too.  Could it be that the majority – not a slim majority, but a REAL majority – cares as much as I do about preserving American democracy? I like to think so – makes me feel less crazy and alone, that’s for sure.

My wonderful colleagues at Mitchell Hamline and the other local law schools as well as clinical law professors from all over the country are working to figure out what role we can play in connecting with that majority.  We are sworn to uphold and protect our system of government, yes, but we also possess unparalleled training and privilege, as lawyers and law professors.  We are legal educators!

So we can educate. And not only law students, but anyone and everyone.  I am working to connect with others – lawyers and non-lawyers alike – to develop materials and put together trainings about the legal system and institutions of government.  You know, civics:  the court system, the relationship between state and federal governments, the separation of powers, the history of executive orders, checks and balances, roles of the judicial, executive and legislative branches, etc.

Rachel Maddow spent her whole show last night discussing the Rule of Law.  She wondered in our current circumstances how the Rule of Law can be upheld and protected, and by whom.  I wonder the same thing.  Learning and teaching a bit about American history and our system of governance seems a really good way to start answering that question.

Harnessing Outrage?

Much of what has happened since the now infamous day in June, 2015 — when Trump descended the escalator and proceeded to spew his bile all over everyone —  feels very personal to a lot of people.  There are of course the direct connections between the awful rhetoric and individual members of targeted communities – Mexicans, immigrants, Muslims, women, LGBTQ folk, African Americans, Americans with disabilities, etc.  I have felt personally under attack as both a lesbian and a woman.  I know many of you have as well – for the same or different reasons.

But I have also felt deeply hurt – yes, that is the right word, oddly – as an attorney.  Not because I believe my livelihood or my life is at risk because of my profession – and for that I am deeply grateful.  But because the President’s attacks on the judiciary, and the Republicans’ cavalier attitude toward the rule of law threaten institutions that, it turns out, I hold very dear.

I am a patriot.  I believe in democracy,  I believe in separation of powers among the three branches of government, and I believe very strongly in the Constitution as the cornerstone and foundation of American democracy and the protector of individual liberties.  All of that appears now to be both under attack, and in question as an ongoing system of governance.

My wise sister suggested yesterday that our outrage – while necessary as a motivating force – might, if not accompanied by more tempered intentional action, actually undermine our efforts to achieve long term change.  I agree.  I hope we all can keep harnessing our outrage to motivate us to call and write and chant and show up with our bodies sometimes to physically protect those too exhausted and/or terrified to be outraged.  But I challenge myself also to figure out what tempered intentional action I can take to contribute towards what Kim described as a “fundamental shift of the pendulum toward an inclusive and engaged vision for America that builds on its democratic ideals.”

I go back to my musings on critical reflection, and Rachel Maddow’s prescription to find what I’m good at and do that in service to my country.  It turns out that I am pretty good at teaching and writing.  And I’m a lawyer.  How can I use those skills – which happen also to be activities that I really love doing – to contribute to the long term preservation of these institutions that I hold so dear?

I’m noodling on it . . .