Dispatches

DATA SHOWS LITTLE EVIDENCE TAX CUTS TRICKLED DOWN TO WORKERS

In December 2017, when Republicans passed the Tax Cuts and Jobs Act (TCJA) they chose to make tax cuts for corporations permanent, while making the individual provisions temporary to satisfy the requirements of budget reconciliation. Republicans sold these corporate tax cuts as being beneficial to everyday working people, despite the fact that experience gives us no reason to believe that corporate rate cuts will trickle down to anyone.

New data from the Bureau of Labor Statistics’ Employer Costs for Employee Compensation for the first two quarters of 2018 show there has been very little increase in private sector compensation or W-2 wages since the end of 2017. The $0.03 per hour (inflation-adjusted) bump in bonuses between the fourth quarter of 2018 and the second quarter of 2018 is very small and not necessarily attributable to the tax cuts, rather than employer efforts to recruit workers in a continued low unemployment environment, noted Larry Mishel of the Economic Policy Institute.

An examination of overall wage and compensation growth does not provide much in the way of bragging rights for tax cutters, especially given the expectation of rising wages and compensation amidst low unemployment.

The $0.03 increase in inflation-adjusted bonuses per hour over the last two quarters came as W-2 wages (defined as direct wages plus wages for paid leave and supplementary pay) actually fell $0.25 and overall compensation rose just $0.07. Looking over the past year we see a rise in bonuses of $0.09 per hour accounting for nearly all of the very small increase in W-2 wages of $0.12 while overall compensation did not grow at all.

Some in the corporate world, eager to bolster the case for tax cuts, tried to hoodwink workers into believing that any bonus a worker received in 2017 was due to the TCJA. But Hunter Blair, a budget analyst with the Economic Policy Institute, noted that “the economic theory behind the idea that corporate rate cuts lead to higher pay for typical workers does not say that those wage increases would occur immediately (and certainly not before the tax cuts came into effect). Instead, wage bumps for workers, if they come at all, would come only after a long chain of economic events were triggered by the cut. One of the first of these events should be increased investment. We’ve long pointed out that there was reason to believe that nearly every link in this chain would break down, and that the theory itself is inconsistent with the reality of the larger deficits caused by the TCJA.”

Now that the tax cuts have passed and enough time has gone by to allow some data to trickle in, is there any reason for us to change this judgement? Not really. There’s still no indication in the data that the TCJA has spurred investment—the necessary but by no means sufficient precursor to wage gains. Sure, owners of corporate shares have made out like bandits. The most recent release from the Bureau of Economic Analysis (BEA) shows that domestic after-tax corporate profits remain high, 7.5% of GDP in the second quarter of 2018 compared to 7.4% in the first quarter of 2018 and up substantially from already-high levels (6.7%) in 2017. Revenue collected from domestic corporate taxes remains low, 1.2% of GDP in the second quarter of 2018 compared to 1.1% in the first quarter of 2018 and 1.8% in 2017. In short, the direct effects of the TCJA are totally visible in the data: swollen corporate profits.

But the rapid surge in investment promised by proponents of the TCJA has still yet to materialize. Initial data for the second quarter of 2018 showed year-over-year growth in real private nonresidential fixed investment roughly unchanged from the first quarter of 2018. Revised data increased that growth rate slightly to 7.04% in the second quarter of 2018 from 6.74% in the first quarter of 2018, but the data still doesn’t show a clear boost to the trend of investment that would indicate a positive effect coming from the TCJA.

TRUMP IS BIGGEST MIDDLE-CLASS TAX RAISER OF ALL TIME. President Trump recently announced plans to impose a 10% tax on $200 billion of imports from China, effective Sept. 24, escalating to 25% effective Jan. 1, 2019. When added to tariffs that have already been implemented, total trade taxes imposed on American consumers and businesses via unilateral executive action exceed all the taxes included in President Obama’s Affordable Care Act (ACA), Kevin Drum noted at MotherJones.com.

That’s from the National Taxpayers Union Foundation (NTUF), a conservative outfit that favors low taxes and low spending. Their methodology is a little aggressive since they include $60 billion in automobile tariffs that haven’t actually been implemented yet, but then again, Donald Trump keeps yammering about raising car tariffs, so maybe it’s fair after all, Drum noted.

During the effort to repeal and replace the ACA, the NTUF noted, the Congressional Budget Office estimated that Obamacare taxes, excluding the individual and employer mandate penalties, were slated to cost taxpayers $67.2 billion in 2019 and $609 billion over ten years. After accounting for changes enacted this year, remaining Obamacare taxes will cost $34.6 billion next year and $531 billion through 2026.

“In comparison, the President has already imposed $9.15 billion per year in new tariffs on washing machines, solar goods, steel and aluminum, plus $12.5 billion per year in additional taxes on imports from China. The newest round of Trump tariffs — 25% taxes on $200 billion in imports from China starting Jan. 1 — will cost another $50 billion. The combined total easily surpasses the annual burden imposed by Obamacare’s taxes.

“In addition, if proposed automobile tariffs currently on the table are implemented, the resulting $132.55 billion in total new trade taxes would offset nearly half (47%) of $280 billion in TCJA tax cuts for 2019.

“Every new trade tax has been imposed without congressional approval. Over the years, Congress has given the President exceptionally broad latitude to impose tariffs for a variety of reasons. The unprecedented use of this discretionary authority by the Trump Administration has led to the introduction of several bills that would wrest those powers back. These would be a welcome addition to US trade law.”

GOP SENATE CANDIDATE VOWS TO PROTECT PRE-EXISTING CONDITIONS WHILE WORKING TO END A.C.A. Missouri Atty. Gen. Josh Hawley, who is running for the Senate against Sen. Claire McKaskill (D-Mo.), put out an ad (9/24) touting his commitment to protecting people with pre-existing conditions, despite currently working as part of a lawsuit that aims to end protects for pre-existing conditions.

“We’ve got two perfect little boys. Just ask their mama,” Hawley says in the ad, which his campaign shared on Twitter Monday. “Earlier this year, we learned our oldest has a rare chronic disease, a pre-existing condition. We know what that’s like.”

He continues, saying, “I’m Josh Hawley. I support forcing insurance companies to cover all pre-existing conditions — and Claire McCaskill knows it. You deserve a senator who’s driven to fix this mess, not one that’s just trying to hang on to her office, and that’s why I approve this message.”

But just a few months ago, as Missouri’s attorney general, Hawley joined 19 other state attorneys general in a lawsuit led by the state of Texas that aims to strike down the Affordable Care Act (ACA) as a whole. After Republicans repealed the ACA’s individual mandate as part of their tax bill last year, the group argues that the ACA is unconstitutional and should be struck down, Addy Baird noted at ThinkProgress (9/24).

Doing so would mean people without pre-existing conditions have no protections in the insurance market. Hawley touted his involvement in the case in a statement in February, saying his office “will continue to fight to take health care choices out of the hands of bureaucrats and return them to the hands of Missourians and their physicians.”

As McClatchy noted earlier this month, Hawley’s office has repeatedly refused to clarify his role in the lawsuit, saying only, “Missouri is one of 20 states involved in the lawsuit. Texas is lead counsel. Now that the case has been submitted to the court, the parties are largely awaiting the court’s decision. To the extent that there is additional work to be done, AGO attorneys are coordinating with their co-counsel in other states.”

PHARMA EXEC CLAIMS ‘MORAL REQUIREMENT’ TO RAISE DRUG PRICE 400%. A pharmaceutical company executive defended his company’s recent 400% drug price increase, telling the Financial Times that his company had a “moral requirement to sell the product at the highest price.”

Nirmal Mulye, founder and president of Nostrum Pharmaceuticals, commented in a story (9/11) about the decision to raise the price of an antibiotic mixture called nitrofurantoin from about $500 per bottle to more than $2,300. The drug is listed by the World Health Organization as an “essential” medicine for lower urinary tract infections.

“I think it is a moral requirement to make money when you can,” Mulye told the Financial Times, “to sell the product for the highest price.”

The Financial Times said Mulye compared his decision to increase the price to that of an art dealer who sells “a painting for half a billion dollars” and said he was in “this business to make money.”

According to the Financial Times, the executive defended “Pharma Bro” Martin Shkreli, who was once dubbed the “most hated man in America” after his company raised the price of an AIDS drug by more than 5,000% in 2015. Shkreli was recently sentenced to seven years in prison for fraud due to mismanaging money at his hedge funds.

“I agree with Martin Shkreli that when he raised the price of his drug he was within his rights because he had to reward his shareholders,” Mulye was quoted as saying.

FDA Commissioner Dr. Scott Gottlieb issued a sharp rebuke of the CEO on Twitter shortly after the story published, saying “there’s no moral imperative to price gouge and take advantage of patients.”

IN CROSSHAIRS OF RIGHT-TO-WORK, KENTUCKY BOURBON WORKERS GO ON STRIKE. More than 50 workers in Kentucky are on strike due to a contract dispute with Four Roses, a bourbon maker with a distillery in Lawrenceburg and a bottling plant in Cox’s Creek. Workers say Four Roses is attempting to adopt a two-tier system that would reduce the benefits for new employees of the company. Members of three different unions walked off their jobs at these sites Sept. 7, Michael Arria reported at In These Times.

The move to establish a two-tier system is especially concerning to union leaders because Kentucky became a “right to work” state in 2017, which means that workers are no longer required to pay union dues. A reduction in benefits would presumably give new Four Roses employees less incentive to support the unions financially, potentially dealing an irreparable blow to the company’s organized labor. Since the law passed, 16,000 workers in Kentucky have opted out of paying their union dues.

The unions on strike are United Food and Commercial Workers 10D, United Food and Commercial Workers 23D and Service Employees International Union/National Conference of Firemen and Oilers.

Jeffrey Royalty is the president of the UFCW Local 10D. He told In These Times that the Four Roses’ two-tier proposal is designed to “short change the next generation.” According to Royalty, “For these corporations, ‘right to work’ really means ‘right to take.’” He added that this system will destroy any organization.

Four Roses, which has existed since 1888 and was purchased by Japan’s Kirin Company in 2002, said in a statement regarding the strike, “A claim that we are proposing a ‘two-tier’ sick leave policy that discriminates against new hires is not true. We agree that the new hires would not receive the same sick leave benefits as current employees, but we believe the new hires’ program is better, not worse.”

Kentucky’s Supreme Court is considering a lawsuit launched by unions over the state’s “right to work” law. The unions are arguing that the law was passed in violation of the Kentucky Constitution. The “right to work” law was swiftly passed by the state’s GOP-controlled legislature and not put up for a popular vote. 

“It’s really not ‘right to work,’ it’s a right for employees to not pay their fair share for the costs of union representation,” Irwin Cutler, the attorney arguing the lawsuit, has argued. “What we see here is an effort to destroy unions, to weaken unions.”

In June’s Janus v. AFSCME decision, the US Supreme Court ruled that unions violated the First Amendment when they took dues from unwilling workers to collectively bargain on their workers’ behalf.

TRUMP CUTS HEAD START, CANCER RESEARCH TO FUND CHILD DETENTION CAMPS. The Trump administration's devotion to deporting brown children comes with a steep price tag. It's not cheap to hold refugee children in detention camps, and it's not cheap to build new child detention camps as the old ones fill up. So Health and Human Services Secretary Alex Azar has informed the Senate that he plans to shuffle over a quarter billion dollars from other HHS programs to cover it, “Hunter” noted at DailyKos (9/20).

In addition to transferring $80 million from other refugee support programs within the Office of Refugee Resettlement, Azar and the administration are taking money from education, health services, and cancer research.

The rest is being taken from other programs, including $16.7 million from Head Start, $5.7 million from the Ryan White HIV/AIDS program and $13.3 million from the National Cancer Institute. Money is also being diverted from programs dedicated to mental and maternal health, women’s shelters and substance abuse, Yahoo News reported (9/19).

The estimated cost of operating such emergency facilities is $750 per child per day — approximately three times the cost of a regular ORR shelter, Yahoo News reported.

“This is being done to support the Trump administration's insistence that we put refugee children in prison camps. Over 13,000 children are currently being held, and current facilities are already near capacity. So they're going to build more,” Hunter noted.

“All of this to serve a white nationalist agenda that insists that refugee children pose such a threat to the American way of life that we cannot tolerate their presence. It was that or fight cancer, and Trump's Republican toadies made their choice.”

TRUMP PASSES 5,000 LIES. On Sept. 7, President Trump woke up in Billings, Mont., flew to Fargo, N.D., visited Sioux Falls, S.D., and eventually returned to Washington, D.C. He spoke to reporters on Air Force 1, held a pair of fundraisers and was interviewed by three local reporters.

In that single day, he publicly made 125 false or misleading statements — in a period of time that totaled only about 120 minutes. It was a new single-day high.

The day before, the president made 74 false or misleading claims, many at a campaign rally in Montana. An anonymous op-ed article by a senior administration official had just been published in the New York Times, and news circulated about journalist Bob Woodward’s insider account of Trump’s presidency.

Trump’s tsunami of untruths helped push the count in the Washington Post Fact Checker’s database past 5,000 on the 601st day of his presidency. That’s an average of 8.3 Trumpian claims a day, but in the nine days since the last update, the president has averaged 32 lies a day.

Fittingly, the 5,000th claim was a tweet about the probe led by special counsel Robert S. Mueller III: “Russian ‘collusion’ was just an excuse by the Democrats for having lost the Election!”

On nearly 140 occasions, the president has falsely claimed that the Russia investigation was made up or a hoax. But the information on Russian efforts to sway the 2016 election was developed by the intelligence community and published in a declassified report, in which the agencies said they had “high confidence” it was correct.

One of his campaign aides has pleaded guilty to lying to the FBI about his contacts overseas, including one connection who disclosed that the Russians had Democratic Party emails. The president’s son, son-in-law and campaign chairman met at Trump Tower in June 2016 with someone they thought was a representative of the Russian government and who had promised “dirt” on Hillary Clinton — and then tried to cover up that fact.

The president’s 5,001st claim was another tweet: He claimed that the administration “did an unappreciated great job” dealing with Hurricane Maria when it struck Puerto Rico in 2017.

That’s just spin that ignores a raft of official reports. A study by George Washington University estimated the death toll at between 2,658 and 3,290. Puerto Rico adopted the midpoint number, 2,975, as its official death toll. The island’s population dropped 8 percent because of the death toll and heavy out-migration after the hurricanes, according to the GWU study. A separate report by the Government Accountability Office found a litany of issues that prevented the Federal Emergency Management Agency from responding quickly and efficiently to the Puerto Rican disaster. Full power was not restored to Puerto Rico for 11 months after the hurricane.

US IS SECOND BIGGEST LOSER FROM CLIMATE CHANGE ECONOMICALLY. One of the biggest myths about global warming pushed by President Trump is that climate action benefits other countries much more than us. But a new study in the journal Nature Climate Change makes clear that, in fact, the reverse is true: There is only one country in the world, India, that benefits more than the US when carbon pollution is reduced.

The study, “Country-level social cost of carbon,” takes the novel approach of calculating the social cost of carbon (SCC) — “the measure of the economic harm from carbon dioxide emissions” — for each individual country, Joe Romm noted at ThinkProgress (9/24).

The study found that India suffered the most from additional carbon pollution, followed by the US — and thus have the most to gain economically from climate action, whether at home or internationally.

The study showed India has a country-level SCC of $86 per ton of CO2, and the US is next at $48. Saudi Arabia was third at $47, followed by Brazil and China at $24. The overwhelming majority of countries were below $10.

Prof. Kate Ricke of Scripps Institution of Oceanography and the University of California San Diego (UCSD) explained to ThinkProgress in an interview that these findings mean that every time this country — or any country in the world — reduces CO2 emission by a ton of CO2, the US benefits more than any other country besides India.

The study’s conclusions directly contradict the unjustifiable and indeed self-destructive estimate by President Donald Trump’s Environmental Protection Agency (EPA) last year that carbon pollution has effectively no significant impact on the US or its economy, Romm noted.

In 2017, the EPA estimated that the social cost of carbon in 2020 would only be between $1 and $6 — as part of their effort to repeal President Obama’s climate rules for new power plants. That was vastly lower than the $42 to $45 estimate the Obama EPA had made for the SCC.

The Washington Post explained at the time the reason for the disparity between the Trump and Obama SCC estimates: “The wildly divergent numbers arise in significant part because the agency is now calculating the cost of carbon only within the United States, rather than around the globe — a key change that could be of major consequence.”

But the new analysis in Nature directly contradicts the Trump administration’s claim that calculating the SCC just for the US leads to a much lower estimate.

Indeed, as Ricke explained, we should expect a country-specific calculation of damages from carbon pollution to be quite high for the United States: “It makes a lot of sense because the larger your economy is, the more you have to lose.”

“The study notes that if the US actually used this new SCC as a basis for action, it could lead to policies “which are consistent with 1.5 -2°C temperature pathways” — the temperature target unanimously embraced by more than 190 nations at the Paris climate conference in December 2015,” Romm wrote.

“Tragically, instead, the Trump administration has made up a ridiculously low social cost of carbon estimate and become the only major country to reject Paris. The result will make us one of the very biggest losers.”

US AMBASSADOR HALEY CONTRADICTS GIULIANI, SAYS US NOT SEEKING REGIME CHANGE IN IRAN AFTER TERROR ATTACK. US Ambassador to the UN Nikki Haley said the US is not seeking to overthrow the regime in Iran, contradicting recent incendiary comments by President Trump’s personal lawyer. Rudy Giuliani.

“The United States is not looking to do a regime change in Iran. We’re not looking to do regime change anywhere,” Haley told CNN’s State of the Union (9/23). “What we are looking to do is protect Americans, protect our allies.”

Haley’s comments were consistent with the Trump administration’s official policy not to seek regime change in Iran, but recent actions, including the reimposition of sanctions (the worst of which will target Iranian oil sales and will come into effect on Nov. 4) and the US exit from the 2015 Iran nuclear deal (despite Iran’s continued, verified compliance), seem to suggest otherwise.

Giuliani told a gathering at an Iranian opposition summit in New York (9/22) that the sanctions imposed on Iran could bring about a “successful revolution,” adding that regime change “is going to happen.”

“I don’t know when we’re going to overthrow them,” he said, according to Reuters. “It could be in a few days, months, a couple of years. But it’s going to happen.”

Giuliani was speaking in his own capacity at the Iran Uprising Summit, hosted by the Organization of Iranian-American Communities — an offshoot of the cult-like, former terrorist organization Mujahedin-e Khalq (MEK), which enjoys little to no support among Iranians in Iran or among mainstream Iranian diaspora communities in the US and abroad, Elham Khatami noted at ThinkProgress (9/23).

Giuliani’s comments came after at least 25 people were killed in a terrorist attack in the southwest city of Ahvaz during a military parade (9/22). While countless Iranians mourned the loss of life, Guiliani told the crowd in New York that the regime is “a group of outlaws and murderers and people who pretend to be religious people and then have so much blood on their hands it’s almost unthinkable.”

Iran’s Foreign Ministry summoned Western diplomats from Britain, Denmark, and the Netherlands for allegedly harboring Arab separatists responsible for the attack (9/23). Iranian President Hassan Rouhani also blamed US allies in the Persian Gulf region for the violence, likely referring to Saudi Arabia, the United Arab Emirates, or Bahrain.

ELECTRIC CAR BATTERIES’ ‘SECOND LIFE’ COULD BE CLEAN ENERGY GAME CHANGER. Plummeting battery costs have made electric vehicles (EVs) a truly disruptive technology. In fact, EVs now use more lithium ion batteries than consumer electronics. But Bloomberg New Energy Finance (BNEF) projects EV-battery demand will rise another 25-fold by 2030 — and EVs will represent more than half of all new car sales by 2040, Joe Romm noted at ThinkProgress (9/21).

This means that millions of used EV batteries will eventually be flooding the market — batteries that may have as much as 70% of their original power capacity, even though it can no longer meet the strict requirements for powering its car.

No wonder every major car company in the world is exploring how much value their EV battery has in its “second life.” After all, BNEF projects that over the next three decades, companies will spend some $550 billion “in home, industrial and grid-scale battery storage.”

This potential second life for EV batteries is a clean energy game changer for two reasons.

First, these used EV batteries can deliver much cheaper electricity storage for renewables than is available today.

And second, if used EV batteries have value, then EV makers can charge less for their cars — because they can make up the difference reselling the battery later — making them even more affordable.

BNEF calculates that “repurposing a battery will cost as little as $49 per usable kilowatt-hour in 2018, compared to $300 for a new battery.”

Some of the companies working on repurposing old EV batteries are Chevrolet in Michigan, Eaton in South Africa, Nissan in Amsterdam and Japan, and BYD in China.

China, with 60% of all global lithium ion cell production, is leading the way on battery reuse and recycling. Electric cars and buses in China alone use more Li-ion batteries than all electronic devices worldwide.

A report last November from Circular Energy Storage Research and Consulting  finds that China dominates the global battery reuse market — and that near-monopoly is poised to grow in the years ahead.

“So, as with manufacturing solar cells and wind turbines, the United States is poised to lose out on another rapidly growing job-creating clean energy sector,” Romm wrote. “But the good news for the entire world is that when the trickle of second-life batteries turns into a flood, the business of electricity storage and demand response —  both of which enable far deeper penetration of renewable power  —  will never be the same.”

DESPITE PROGRESSIVE REBRANDING, NIKE STILL DONATES MORE TO GOP. Nike has been on a bit of a progressive rebranding, after launching an ad campaign in September featuring former NFL quarterback Colin Kaepernick that has some progressives singing the company’s praises and spreading its message for them.

It was a savvy move, Katie Herzog noted at (9/21). According to Reuters, since the ad was released, Nike has sold 61% more merchandise (despite that fact that red caps keep burning the socks and shoes they already paid for). But does Nike’s political spending reflect progressive values?

Hardly.

According to the Center for Responsive Politics (CRP), during the 2018 election cycle, Nike employees, along with the company PAC, contributed $424,000 to Republican candidates and the GOP, compared with only $122,000 to the Democrats. That means 78% of the company’s political contributions are to the GOP. And this, according to CRP’s Nihal Krishan, is par for the course. “With a couple notable exceptions like the 2008 and 2016 election cycles, Nike has a track record of giving much more to Republicans than Democrats in the past decade,” Krishan wrote in a blog post. “During the 2010, 2012 and 2014 election cycles, Nike gave hundreds of thousands of dollars to Republicans, with 76%, 69% and 59% of their contributions going to the GOP in each of those cycles respectively.”

Almost half of this year’s donations come from Nike founder Phil Knight and his wife, who have donated at least $1.5 million to Oregon gubernatorial candidate Knute Buehler, who is—surprise—a Republican. Buehler, who is running against incumbent Gov. Kate Brown, supports lower taxes for corporations and ending Oregon’s sanctuary law for undocumented immigrants.

Herzog concluded, “Want to support progressive companies? Great. But despite the Kaepernick campaign, Nike just ain’t it.”

KEEPING KAVANAUGH OFF COURT MORE IMPORTANT TO MAINE AND ALASKA THAN RE-ELECTING COLLINS AND MURKOWSKI. The nation as a whole really doesn’t want Brett Kavanaugh on the Supreme Court. In three national polls released the week Dr. Christine Blasey Ford accused him of sexually attacking him in high school, he was underwater, the most unpopular nominee since nominee popularity has been polled, Joan McCarter noted at DaillyKos (9/21). NBC finds 38% opposed, Reuters 36%, and Gallup 42%. He’s really unpopular. But he’s even more unpopular in Maine and Alaska, where the nominally undecided Republicans Susan Collins and Lisa Murkowski have to think about re-election.

A Civiqs poll in Maine finds that 56% of registered voters opposed Kavanaugh’s confirmation, including 57% of Independents. Collins’s key support, women, oppose him by a 39% margin, 67% oppose to 28% support.

When asked to choose what was more important—stopping Kavanaugh or re-electing Susan Collins—stopping Kavanaugh beat keeping Collins more than a 2-1 margin, 52% to 25%. Collins has also lost her claim to be an independent voice for Maine, with 48% of Mainers “believe that Sen. Susan Collins answers more to Republican leaders like Donald Trump and Mitch McConnell, than she does to Maine voters.” Just 32% say she’s on the side of Maine. And while Collins likes to keep saying that Kavanaugh promised to her that he believes Roe v. Wade is settled law, 57% of Mainers aren’t buying it and believe he’d vote to overturn it if given the opportunity.

So, that’s Collins, out of step with her constituency. Let’s turn to Alaska, where a PPP poll also finds that keeping Kavanaugh off the Supreme Court is more important to voters, by a 2-1 margin, than re-electing Sen. Lisa Murwowski. Stopping Kavanaugh is more important to 48% of voters than re-electing Murkowski at 24%. “This finding is consistent across all party lines,” the polling memo points out, “with a majority of Democrats (65%), and a plurality of Republicans (39%) and independents (47%) saying it is more important to stop Trump’s nominee from being confirmed.” Even Republicans in Alaska don’t want him!

It’s politically safe, ultimately, for Murkowski to oppose this nomination. There’s some hints that she’s preparing to do just that, lining up backing and arguments to support her. In contrast, it’s getting more politically unsafe every day for Collins to support Kavanaugh, as she’s giving every appearance of intending.

TRUMP JUDGES MAKE IT EASIER FOR PROSECUTORS TO CONVICT INNOCENTS. Donald Trump has put five judges on the Fifth Circuit US Court of Appeals; George W. Bush placed four there. Two Reagan appointees are still active. Just three Obama and two Clinton judges sit on that court, which hears appeals from Texas, Louisiana, and Mississippi. The latest reminder of what that means for our rights is a chilling one, Rebecca Pilar Buckwalter Poza noted (9/20).

For the past 55 years, prosecutors have been required to share with the defendant exculpatory evidence—that is, evidence they have that a defendant may be innocent. That requirement, called the Brady Rule or Brady Doctrine, does little to alleviate the radical disparity between prosecutorial and defense resources when defendants depend on public funding, but it’s a bulwark against the worst of abuses. The rule came out of a 1963 Supreme Court case, Brady v. Maryland, in which prosecutors prosecuted John Leo Brady, for murder—he was sentenced to death—despite having a confession from another man, Donald Boblit, admitting he’d been the one to kill the victim. 

Seems like a fundamentally sound concept, no?

The Fifth Circuit doesn’t think so, at least not these days. In 2009, it decided prosecutors didn’t have to turn over exculpatory evidence during the plea-bargaining process. Given a chance to reconsider this deviant, destructive precedent, they’ve instead produced an *en banc* ruling—that is, a ruling from a hearing in which all judges participated—that reaffirms it.

The case involved an altercation between a jail guard and a 17-year-old who was charged with assault. Four years after he started serving his sentence, a video of the fight “surfaced.” A state court declared him actually innocent and freed him. Prosecutors didn’t object.

The US Department of Justice opposed the finding that due process requires the disclosure of exculpatory information before a plea because: 1) it would “impose serious costs on the criminal justice system: and 2 it’s already doing it.

If George Alvarez had been convicted of a federal crime in this circuit, he would have served his full 10-year sentence despite eventually discovering that the government failed to disclose an exculpatory video.

Fortunately for Alvarez, and for those who believe that “justice suffers when any accused is treated unfairly,” he was convicted of a state offense. Even Texas state law is more progressive than Trumpified Fifth Circuit law, as for almost 40 years, Texas has interpreted the federal Brady right to require the government to provide exculpatory information “to defendants who plead guilty as well as to those who plead not guilty.”

In fact, the Fifth Circuit’s call flies in the face of how every other appellate court and state supreme court to have considered this question came out, Poza noted.

The repercussions are enormous: 97% of federal criminal convictions and 94% of state felony convictions are the result of plea bargains.

Because we now have “for the most part a system of pleas, not a system of trials,” today’s opinion reaffirming our outlier position means that the vast majority of defendants in this circuit will not have a right to relief if it comes to light after their conviction that the government suppressed exculpatory evidence.

“Here’s what we have to look forward to with Trump’s growing hold over the federal judiciary: courts that cling to bad law, no matter the jurisprudential and common sense cues that dictate otherwise. Because they can,” Poza wrote.

It’s not just the Fifth Circuit that Trump’s coopted, she noted. “Consider the Seventh Circuit—that’s Illinois, Indiana, and Wisconsin—and the Eighth—Iowa, Arkansas, Minnesota, and Missouri. Just two of the Seventh Circuit’s 11 judges were appointed by Democrats; on the Eighth, it’s just one. Trump’s seated four judges on the Seventh already; he’s gotten three on the Eighth and nominated a fourth.

“This is why we fight.”

From The Progressive Populist, October 15, 2018

Populist.com