​The disgraced ex-president and his Grand Old Prevaricator party are absolutely correct when they declaim about a “two-tiered” justice system. Only they got the two tiers wrong. We have a justice system that treats Donald Trump like a delicate flower to whom the rules don’t apply in quite the same way they do to the average schmos who run afoul of the system.
 
You can see this double standard at work in a recent court filing by the lawyers for Jack Teixeira, the reckless, self-aggrandizing youth who posted highly classified documents online. He has been in jail ever since his indictment and arraignment more than three months ago. His attorneys argue he should be let out of jail as he awaits his classified documents trial, citing Trump’s release. In contrast, Trump, who stole the most sensitive government secrets and perhaps even monetized the missing ones–search warrants for the Kremlin and the royal palace in Riyadh are in order–rambles all over the country projecting  (and lying) that his enemies are doing to him exactly what he is accused of doing. He is even permitted to fulminate, unmuzzled, threatening his foes with violence if he is convicted of his countless crimes and jailed for his transgressions. While we should never make light of the Constitutional right to free speech, viewing Trump’s threats as protected speech is a flagrant perversion of the First Amendment.
 
The difference between the two, say the courts, is that Teixeira is a flight risk whereas Trump, who flies around on a private plane, is not. Does anyone really believe that if imprisonment loomed, Trump would not skedaddle to Russia, Saudi Arabia—or even North Korea, where he says he is loved?
 
You can also see the double standard at work among Trump’s prosecutors. The evidence of his misconduct is so obvious and copious that the question must be asked: what is taking everyone so long? It’s been 30 months since he was caught on tape attempting to overturn the 2020 Georgia election results. That case was already a slam dunk when the tape went public. It’s been an equal amount of time since he committed high treason, trying to overthrow the government and cling to power despite being resoundingly rejected by the public to the tune of 7 million votes. Even aside from the Capitol attack and insurrection he perpetrated, there is enough evidence to condemn him to a life in an orange jumpsuit to match his comb-over.
 
And then there was the fake elector scheme, organized and operated from the White House in the interregnum between the election he decisively lost and the inauguration of the man who trounced him. The double standard with respect to that vile conspiracy was emphasized this month in the indictment of 16 fake Michigan Trump electors by that state’s attorney general, Dana Nessel. She too put Trump above the law by not indicting him, the mastermind of the conspiracy to steal the election. The question must also be asked: why haven’t the AGs in the other battleground states where the fake elector scheme flourished indicted Trump and his co-conspirators?
 
Assuming that the Trump nightmare will one day be behind us, this double standard of according far more leeway to the powerful than the rest of us merits a careful reassessment. There is no justification for any American to be above the law and cut the slack that Trump enjoys.
 
Also, Republicans, before you barricade yourselves in the two-tier glass house of cards you have constructed with your incessant lies about our justice system, better set aside those stones.
 
Dick Hermann
July 29, 2023

​Pennsylvania Governor Josh Shapiro is receiving a lot of well-deserved praise for masterminding the reopening of Interstate 95 in Philadelphia just 12 days after a section of the highway collapsed. Initial estimates were that it would take many months at best to repair. Commuters and businesses quickly went from despairing to rejoicing. Disruption of lives and commerce was minimal. The public astonishment at this feat is such that Shapiro is being talked about as a future presidential candidate.
 
In 2017, when it took 43 days to fix a 92-foot section of Interstate 85 in Atlanta, that relatively short time frame during which the heavily traveled highway was closed was also considered impressive.
 
Both of these “achievements” have met a pretty low bar. Most of us of a certain age have lived for decades in a country that has lost the ability to do big things in anything remotely resembling a timely manner. We take for granted that if something as modest as widening a highway shoulder is underway, traffic will be disrupted for months, if not years.
 
It wasn’t always this way. Ground was broken for the Pentagon, (still) the world’s largest office building, two months before the Japanese surprise attack on Pearl Harbor, and the first of its full complement of 40,000 workers began moving in only nine months later. Construction was completed in just 16 months. George Bergstrom’s brilliant architectural design made it possible to get from anywhere in the Pentagon to anywhere else in the building in just seven minutes.
 
The construction manager was Army Corps of Engineers Colonel Leslie Groves (played by Matt Damon in Oppenheimer). He did such a phenomenal job that President Roosevelt had him promoted to general and  put him in charge of the largest scientific and engineering endeavor in history, the super-secret Manhattan Project to build an atomic bomb. It took only three years to go from theoretical concept to the successful Trinity test detonation in the Jornada del Muerto (the aptly named “Dead Man’s Journey”) desert of New Mexico.
 
How low our expectations have since become.
 
We have been beaten down to such an extent that we are both impressed and astounded at what happened in Philadelphia. Today our modest expectations are such that we hail the temporary repair and reopening of a tiny, 104-foot section of highway as a dazzling achievement. That’s all you need to know about the state of affairs in America in the third decade of the 21st century. We have not only apparently lost the ability to do big things (see, for example, the Interstate Highway System and putting a man on the Moon in less than a decade), we have also lost the ability to tackle and complete more humble undertakings in anything remotely resembling a reasonable timeframe.
 
Let’s hope that the lessons learned from Josh Shapiro’s example spurs the 35,000 new infrastructure projects underway across the country, thanks to President Biden’s Infrastructure Investment and Jobs Act (enactment of which was itself a monumental accomplishment), to move forward intelligently and swiftly with more than all deliberate speed.
 
Dick Hermann
July 26, 2023

​I was taught that the First Amendment’s Free Speech Clause has certain limits, unlike the Second Amendment as irrationally interpreted by the Supreme Court. Left unprotected by the First Amendment are incitement, defamation, fraud, obscenity, child pornography, fighting words, and threats. In a 1969 case, the Court held that speech which would be directed to and likely to incite “imminent lawless action” was outside the bounds of First Amendment protection (Brandenburg v. Ohio).  
 
Encyclopedia Britannica states that the First Amendment does not protect speech “likely to incite or produce [imminent lawless action] (such as a speech to a mob urging it to attack a nearby building).” Like the U.S. Capitol, perhaps?
 
January 6, 2021 was hardly the only time Donald Trump went way beyond the protective bounds of the First Amendment. He engages in unprotected speech daily. Undeterred by federal, state or local law enforcement or social media content moderators, he continues to incite his followers to undertake violent acts both before with his “Stop the Steal” lies, as well as ever since the insurrection. The hammer blows to the head of Paul Pelosi were struck by David DePape, an election denier influenced by Trump’s barrage of lies about the “stolen” 2020 election. On August 11, 2022, Ricky Walter Shiffer assaulted the FBI's Cincinnati field office. He wore body armor and carried an AR-15 style rifle and a nail gun. Shiffer had participated in the January 6 insurrection, and after the FBI document search of Mar-a-Lago, had posted on Truth Social, Trump’s social media outlet, that he wanted to kill FBI agents. These and other incidents of Trump devotees seeking to turn his words into violent acts can be traced directly back to the disgraced former president.
 
None of these violent acts prompted Trump to temper his inflammatory rhetoric and social media posts. He continues to threaten people like Special Counsel Jack Smith and other Justice Department and FBI officials whom he claims are out to get him. His followers have threatened state and local election officials. The Washington Post reported this week that individual prosecutors involved with Jack Smith's indictment of Donald Trump are being subjected to "substantial" harassment and threats from pro-Trump fanatics. Trump himself is a walking, talking hate criminal.
 
When, one must ask, is enough enough? Fortunately, there has not yet been any mass violence despite Trump’s attempts to instigate some. That may be because the leaders of his extremist, neo-Nazi cohorts, such as the Proud Boys and Oath Keepers, have been hauled before the courts for their violent January 6 assault on the Capitol. This may have deterred others inclined to violent acts. The real danger, however, are “lone wolf” attacks, such as the ones cited above.
 
Why haven’t the authorities clamped down on Trump? Why does he get a special pass when anyone else who engages in this kind of incitement to violence would likely be quickly and severely punished? Admittedly, it is not easy for the authorities to meet the Supreme Court’s three-pronged test for curbing Free Speech elucidated in Ward v. Rock Against Racism (1989): the restriction must be (1) content neutral, (2) narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communicating the speaker’s message. Nevertheless, the time has come to make the effort.
 
It's a miracle that there hasn't been more violence on Trump's behalf. Allowing him to continue to rabble-rouse unchecked is going to get people severely injured or even killed.


Dick Hermann
July 14, 2023

​When I was stationed in Europe many years ago, and then on subsequent trips overseas, I was always impressed with how knowledgeable local citizens were regarding the significant national and international issues of the time. This was true regardless of their educational attainments or their socio-economic circumstances. From German factory workers to Slovenian waiters to Irish farmers to Italian innkeepers, these folks were concerned with and cognizant of political and economic issues. Moreover, they were keen to participate in elections and very aware that electoral results would have a significant impact on their lives. This was—and still is—reflected in the high voter turnouts foreign election contests typically generate.
 
Not so much in America.
 
Take the Supreme Court, for example: Recent polls measuring public awareness of Supreme Court cases, for example, have produced some shocking numbers. It might be understandable that large swaths of the population have not heard of the three highly controversial cases that were decided at the end of the Court’s 2022-2023 term—(1) ending affirmative action in college admission decisions; (2) overturning President Biden’s student debt relief program; and (3) permitting a (hypothetical) business to discriminate against a (hypothetical) LGBTQ customer. However, it was stunning to learn that 30 percent of Americans are unaware of last year’s Dobbs decision that overturned Roe v. Wade and yanked away a woman’s right to choose. And the most stupefying poll result: 30 percent of respondents to a Marquette University Law School poll think that Democratic presidents appointed most of the members of the Court.
 
Does this almost one-third of the population live in an underground bunker with no access to radio, TV, newspapers or the Internet? How is something like this even possible? Even in a society so polarized that people get their information only from silo-ed sources that pander to their beliefs and, in this post-Fairness Doctrine era, never hear other points of view, this level of obliviousness is mind-boggling.
 
The great American experiment in democracy and the rule of law is, today, under threat not only from fascist white supremacist authoritarians such as the rapidly expanding “Moms for Liberty,” who quote Adolf Hitler in their releases and have ties to dangerous extremist groups like the Oath Keepers, but also from Americans who have no interest and don’t appear to care if our precious system survives.
 
Apathy and not the GOP’s embrace of authoritarianism may be the more immediate threat to democracy. It should only be TV shows that die due to poor ratings. It would be beyond tragic if American democracy is cancelled for lack of interest.
 
Dick Hermann
July 8, 2023

It’s the end of the Supreme Court’s term and the Justices are eager to shed their robes and get out of Dodge. At least four of the six “conservatives” might likely ride off into the smoke-filled sunset on private jets bound for luxury vacations funded by hard-right billionaires as rewards for their good works advancing the causes dear to extremist hearts.
 
The last two days of the Court’s term saw three breathtaking decisions that will have an immediate adverse impact on tens of millions of Americans. While the defeat of President Biden’s student loan forgiveness program and the decision allowing a Colorado website designer (who hasn’t yet designed any websites) to refuse to work on wedding websites for LGBTQ persons deserve their own detailed analyses, I want to focus on the Harvard and University of North Carolina cases that ended affirmative action in college admissions.
 
To arrive at this result, the Court’s right-wing supermajority shows that it lives in an alternative fact universe divorced from reality much like their Republican allies in Congress, GOP presidential aspirants and the MAGAverse. In this fantasy realm, everyone—Whites, Blacks, Latinos, Native Americans, Asians, etc.—has an equal opportunity to rise on their own merits. This is the line that ex-President Trump and former Vice President Pence adopted in response to the Court’s ruling. The Justices have upended decades of American jurisprudence in order to achieve the political aims of the Republican Party.
 
Rising on merit is, of course, a fiction. Not only do racism, prejudice and discrimination persist in today’s America, they are becoming more entrenched thanks in large part to the evils of Trumpism. The Trump Era saw hate crimes and anti-minority activities skyrocket. Even out of office, Trump continues to fan the flames of white supremacy at every opportunity. As Justice Jackson wrote in her dissent, “Deeming race irrelevant in law does not make it so in life.”
 
Chief Justice Roberts, writing for the majority, invoked the Equal Protection Clause of the 14th Amendment as requiring a race-neutral consideration of college applicants. Apparently, he is unaware that the 14th Amendment, ratified just after the Civil War, was also the first endorsement of affirmative action to compensate for the evils of slavery. The Equal Protection Clause permits race-based initiatives narrowly tailored to meet a compelling government interest. Roberts’ opinion carves out an exception for military academy affirmative action admission programs. Diversity in the armed forces, according to Roberts, meets that test while other college admission programs, designed to achieve diversity in American society overall, do not. Wow!
 
In fact, the Equal Protection Clause was used to justify a number of what amounted to affirmative action programs—such as the Freedman’s Bureau Acts—after the Civil War to help former slaves alleviate some of slavery’s ills and adjust to their new reality. Justice Sotomayor pointed this out in her dissent.
 
This decision is not the first time the Court conservatives have pretended that racial inequality no longer exists in order to realize right wing extremist goals. See, for example, the Roberts Court decisions gutting the Voting Rights Act of 1965, justifying these disastrous, anti-democratic rulings by claiming that minority discrimination is no more, completely ignoring the barrage of voter suppression laws enacted by Republican state legislatures nationwide that fall most heavily on Black and Brown communities.
 
The supreme irony is that five of the six justices in the majority are beneficiaries of extraordinary privilege while the other is himself the beneficiary of affirmative action. The last time I looked, none of them grew up having to hunker down in terror in their homes while drive-by shooters shot up their neighborhoods.
 
This decision signals what will likely happen next:

• A precipitous drop in the number of minority students admitted into college, especially into elite, highly selective schools. In states that have already banned affirmative action in college admissions, Black enrollment has plunged (down by almost 50 percent in Michigan). The story is similar in California.

• The decision may portend the death of affirmative action programs in corporate hiring and in government contracting and all other areas of American life.

• College application essays may loom larger in admission decisions. Roberts noted that “Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” The downside of this is that, with essays looming larger in admission decisions, the temptation for applicants to use artificial intelligence programs to write their essays may increase. The challenge for admissions offices to distinguish AI essays from those written by applicants will be daunting.

• To the extremely limited extent something good comes out of this retro decision, it is this: The decision throws open the door to legal challenges to legacy preferences for the children of alumni, as well as preferential admission programs for big donors’ kids, and the children of faculty and celebrities. If minority affirmative action admissions program must go, then these preferences should also disappear. And what about affirmative action for athletes?

 
This decision is at least as much political as legal. It represents a big success for the Republican Party’s 40+ year effort to “re-disadvantage” minorities, punishing them for voting overwhelmingly Democratic and suppressing their vote (blessed  by the Court—see above) in order to win future elections.
 
Dick Hermann
July 1, 2023