The Courts Can Move Quickly. They're Slow-Walking Trump Cases on Purpose.

[babylonsister]

The Courts Can Move Quickly. They’re Slow-Walking Trump Cases on Purpose.
Don’t be fooled into thinking this isn’t a decision.
By Barry Friedman and Dahlia Lithwick
Jan 10, 20208:30 AM


One thing few people know about the architecture of the U.S. Supreme Court building concerns the turtles. They are built into the lampposts around the exterior courtyard of the building. They are adorable, but they are also meaningful—they are meant to signify the slow deliberative pace of justice. Justice Sandra Day O’Connor liked to call attention to the turtles as emblematic of an institutional virtue in a high-speed world: “They move slowly,” she said, in 2005. “That’s what we do.”

Justices and judges may pride themselves on not being rushed into precipitous action, but the judiciary also has the capacity to move very quickly when circumstances demand it. That’s why it is particularly noteworthy that the current failure to move things along is so advantageous to Donald Trump and his chances for success in the November 2020 election, and also so obviously disadvantaging the Democratic-held House of Representatives. One could be forgiven for starting to wonder whether the courts are taking sides but doing it in a way that looks measured and restrained. The thing is: Sometimes not resolving an exigent case is a decision.

It’s been clear for some time now that the beating heart of this president’s litigation strategy is an effort to run out the clock on issues ranging from the subpoenas of his financial records to his blanket refusals to permit anyone in his ambit to testify before Congress. As the New York Times’ Charlie Savage put it in November: “Like a football team up late in a game whose defense hangs back to prevent big plays while letting its opponent make shorter gains, Mr. Trump’s legal team is looking to run out the clock, putting forth aggressive legal theories often backed by scant precedent. The strategy risks periodic bad headlines in the short term and could lead to definitive rulings that hamstring future presidents—but it is demonstrably advantageous for consuming time.” Indeed, when House Democrats essentially opted to give up on any hope for relief in the federal courts because, as Adam Schiff put it last fall, “we are not willing to go the months and months and months of rope-a-dope in the courts, which the administration would love to do,” the decision was taken to mean Democrats had given up on witness testimony altogether in the House proceedings. They hadn’t, but that statement may well come back to haunt Senate Democrats who now are facing the prospect of a trial without additional witness testimony of any sort. Having opted not to wait for court rulings requiring testimony from Don McGahn and John Bolton, the door now may have closed on the opportunity to hear from them voluntarily.

What’s stunning is the degree to which the courts are complicit in all this. The courts have aided and abetted the Trump legal team and Mitch McConnell by refusing to behave as if time is a factor in any of these proceedings. That’s evident in the decision to docket a pair of financial records cases no earlier than March and the meandering pace of the gamesmanship around a case seeking to end the Affordable Care Act through judicial fiat. But the real coup de grâce was the failure of the Supreme Court and lower federal courts to resolve congressional subpoenas around the impeachment process with alacrity when it was altogether plain what was needed. Had the courts signaled a willingness to act at a pace befitting the needs of the moment, Schiff might have made a different choice. Sometimes the appearance of studied deliberation serves nihilism and chaos, even as it pretends at neutrality and institutionalism.

more...

https://slate.com/news-and-politics/2020/01/courts-slow-trump-decisions-deliberate.html

[bluestarone]

1. I do get that feeling as well

Decisions seem to be impossible to get. I think the House knows this, and that's why they are going the route they are. WHY the courts are doing it I DON'T KNOW!

[uponit7771]

2. The courts are the kink in our system, if Trump came out and admitted working for Putin & being his

... whore like we know he is what would the courts do about it a bipartisan congress wanting to legally and by the book get rid of him?

EVERYTHING ... on their time is what it looks like

[blm]

3. It's apparent whose interests are being served. Certainly not the American people

or the constitution.

[2naSalit]

4. +1

[Girard442]

5. I've said this before. The courts don't want to rule for or against Trump.

Ruling for him make them look like craven bootlickers. Ruling against him -- he just tells them to go pound sand, and then the illusion that the courts have power is shattered forever. So...they kick the can down the road.

[bucolic_frolic]

6. Running the clock also drags through the mud

Not that there's a lot left untarnished at this point

[UniteFightBack]

7. I hoping for some decisions on something closer to the actual election. nt

[Pepsidog]

8. Absolutely-Complicit as hell! Have the Dems asked for emergent relief? I mean there are court rules

that deal with expedited hearings. It seems like impeachment matters would take priority. I’m sick to my stomach.

[ancianita]

9. There are ideological reasons for this, detailed in

Jane Mayer's Dark Money and Nancy MacLean's Democracy In Chains.

Most of the ideological insurgency through the courts began with the Olin Foundation pouring money into Harvard, Columbia, Georgetown and other major university law schools, to endow whole law school "Centers for Law and Economics," as they were called. This was around 1985.

The Olin Foundation funded Law and Economics seminars for judges, run by Henry Manne, dean of the George Mason University School of Law in Virginia. He was a libertarian follower of Charles Koch and James M. Buchanan.

These were free junkets, or vacation seminars junkets (whatever) held in places like Key Largo, Florida. 40% of the federal judiciary participated, 660 judges from district, appeals and the Supreme Court attended these seminars.

Simultaneously, the Olin Foundation provided crucial startup funds for the Federalist Society, founded in 1982 for conservative law students. That money helped it grow from 3 law students to a professional network of 42,000 right-leaning lawyers, with 150 law school campus chapters and 75 lawyers' groups nationally.

All our conservative SCOTUS justices are Federalist Society members, along with numerous members of the federal bench.

The Olin Foundation described the Federalist Society as "one of the best investments" the foundation ever made.

[DallasNE]

10. Bush v. Gore

That shows how running out the clock actually works.

The case took far too long to go through the District and Appeals Courts then when it got to the Supreme Court they didn't have to dither for long but dither they did for several days before announcing that the clock had run out. There the dithering was for days not months showing they could move rapidly while also dithering.

There is a good deal of case law on separation of power issues so weighty issues are scant. And it is made easier because criminal proceedings do not offer the same protections as matters of policy. This makes the Supreme Court look like they are putting their hand down on the scale of justice to favor one party over the other. The stain will last.