Justice delayed is justice denied (for Trump)

OMG, I finally, finally read the article I’ve been waiting for.  I’ve ranted so many times (but not here, I think) about how ridiculously long courts are taking to hear all these cases against Trump.  There’s so many examples of courts moving with alacrity when the situation clearly calls for it.  And, yet, here are multiple situations that really call for it– where it is truly justice that we have court decisions well before the election– and yet things are moving at a typical slow pace.  And virtually all the reporting I read is basically, “whelp, courts are just slow, you know.”  No!  They don’t have to be!  And in these cases they damn well shouldn’t.

And I’ve been waiting and waiting (Steve delayed is Steve denied) for some court experts to weigh in on this.  And, finally Barry Friedman and Dahlia Lithwick with a great piece:

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. [emphases mine]

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.” …

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.

It didn’t have to be this way. Chief Judge John J. Sirica of the U.S. District Court for the District of Columbia insisted that the Watergate tapes case play out so quickly that the White House was caught off guard and unable to formulate a workaround in time. The Supreme Court heard the Nixon tapes case on July 8, 1974, after the term had ended. It issued its unanimous ruling a few weeks later. In 1942, during World War II, Franklin Roosevelt wanted to execute some German saboteurs who came to Long Island by submarine—and he wanted to do so quickly. The eight defendants were tried by military tribunal lickety-split. When the constitutionality of this use of military tribunals was challenged—some of the alleged saboteurs were American citizens—the Supreme Court interrupted its carefully guarded summer recess, heard extra-long arguments on July 29 and 30 of 1942, and issued its judgment, giving its unanimous OK on the July 31…

[and plenty more examples]

If you really want to talk about haste, there is always the breathtaking example of the court moving expeditiously to award the election of 2000 to George W. Bush. The warp speed at which that intervention took place proves quite a contrast to the justices’, and several lower courts’, signaling of their own virtuousness in refusing to be rushed into action around anything involving the 2020 elections…

Make no mistake: It is a choice to ignore a congressional subpoena, and it is a choice to claim that only a court can resolve that impasse. When that choice is taken by the president, it seems fair to ask that the courts resolve the matter with something more prompt than the “all deliberate speed” with which they allowed desegregation to drag on for years and years after Brown v. Board of Education. Sometimes, not resolving a case in time for relief of any kind is a decision. Calling it lofty institutional deliberation instead of a dodge is a play to the court of public opinion, but not a court of law.

Damn that felt good to read all that and be able to write about it here.  Of course, the actual reality of this is unjust, unfair, and aids and abets the presidency of a clearly abominable person and incompetent president.  But, it’s nice to finally have some legal scholars confirm that I’ve been right when shouting into the void (and to my unlucky friends) about this.

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