Saturday, November 9, 2019

The Attorney General’s Assault on Alaska Supreme Court Caselaw Imperils Alaskans

As Anchorage Daily News reporter James Brooks reported last week, a string of defeats suffered by Governor Dunleavy in prominent court cases this year has exposed the limits of his administration's ability to push their agenda through the court system--the last bulwark and a major check and balance against government overreach.

The PFD and oil taxes are kitchen table talk for most Alaskans, but more than anything else, the judiciary--and its interpretation of the Alaska Constitution--is at the heart of the ongoing battle to save American constitutional democracy, both here and at the national level. It's a form of constitutional democracy that, for the most part and ideally, protects and prioritizes individual rights and liberties above corporate interests. 

To understand what is happening, you have to start with Alaska's judicial selection process. The Alaska Court System's website explains:
Alaska’s judges are selected by what is called the Judicial Merit Selection System. The authors of Alaska’s Constitution believed that it was important to have judges who were honest, fair, impartial, intelligent, experienced in applying the law, committed to following the rule of law and serving the interests of justice. Likewise, the authors believed that traditional partisan politics, with its influence of money, political patronage, deal-making and favoritism, posed too great a threat and impediment to achieving the desired goal of having a judiciary composed of such fair and impartial judges. That’s why the authors of the constitution decided that Alaska’s judges should be chosen by the Judicial Merit Selection System.
This system works through a rigorous vetting process. Attorneys who apply to be judges are rated by their colleagues and interviewed by the Alaska Judicial Council. The Council then sends two or more names to the Governor for appointment to the bench, and the Governor chooses from those names. Judges then stand for retention at general elections according to a set schedule.

Governor Dunleavy ran into trouble this year when he hijacked this process by illegally insisting that the Council provide him with different names. This unconstitutional "negotiation" delayed the appointment of a Palmer Superior Court judge and is now a stated legal ground for recalling the governor--one that Dunleavy's appointed Attorney General, Kevin Clarkson, has deemed legally insufficient.

We'll see about that. 

As Attorney General Clarkson himself said, the Alaska Supreme Court will have the final say about this and other positions he has taken, and that is the point.

The Alaska Supreme Court interprets the Alaska Constitution and those opinions become law; law that trial courts are required to follow, and that future justices of the Alaska Supreme Court must generally follow as well. Every government lawyer is accustomed to making arguments for the State that are perhaps losing arguments, or that they disagree with personally. But Attorney General Clarkson has gone a step further by forcing career attorneys at the Department of Law to—at a minimum—embarrass themselves in court by taking positions clearly at odds with judicial precedent.

Why would he do this? 

The answer is bigger than Alaska, although we are a rich laboratory for these constitutional experiments. This is part of a national trend and tactic on the far right to discredit the judicial branch by forcing clearly losing cases to the courts. That way, when they lose, proponents of these positions can blame an "activist judiciary" for following precedent on a document that, for his part, Governor Dunleavy wants to amend to favor corporations over individuals. (Fortunately, amending the constitution is very hard to do).

In short, decades of Alaska Supreme Court precedent have given Alaskans liberty, privacy, education, resource, and property interests unmatched elsewhere in the nation and stronger than those afforded at the federal level. This precedent has helped cement Alaska's reputation as a bastion of rugged individualism, which helps individuals, but arguably harms corporations. Neutering the constitution and hobbling and stacking the judiciary is the Holy Grail of this mode of governing.

It remains to be seen which of Attorney General Clarkson's positions will be overturned or upheld by the Alaska Supreme Court, but if he loses, look for this administration to blame the referees, and loudly. 

That reaction is a key performative move in a long game, the ultimate goal of which is a showdown at the ballot box to unseat judges for doing their jobs and/or open the door to a constitutional convention designed to unravel civil liberties.

It is an axiom of creeping autocracy that "your institutions will not save you." Unfortunately, the Dunleavy administration has put Alaskans in the perilous position of waiting for our judiciary to do exactly that.

Friday, November 1, 2019

Dear Haters: Please Refer to This Rap from Now On

With apologies to Eminem & 8 Mile ...

Now, everybody from the 907
Put your motherfucking hands in the air to heaven
Everybody from the 907
Put your motherfucking hands up! Look, look …
Now, while they shit-post
Notice these motherfuckers hide inside they keyboards like they fuckin’ ghosts 

BOO! Oh wut. Did I scare you? 
I got you cryin' to yo mama like boo hoo hoo
Facebook got you gassed up like you the bomb?
Now, who’s 6"9 and scared of a 5”2 mom?
One, two, three, and to the four
One tweet, two tweet, three tweet, four
Four tweet, three tweet, two tweet one
Come out your mom’s basement-- say that shit to my face, son!
You sorry ass trolls think you motherfuckin’ ballers
Sittin’ in your truck reading the Daily Caller

Getting high off your own supply
I know everything you got to say about me, now don't I?
I AM a bitch, I AM a Marxist cunt
I DO get on the internet and flex and stunt
I DID get fired by Dunleavy and I DO keep cursing and frowning
I DO get dragged by Suzanne Downing
I AM a commie leftist libtard with clinical depression
I DO have a million unhealthy obsessions
And no, I AIN’T legit from Alaska
I grew up in an apartment in the Bronx, dumb bastards
Don’t judge me or slide into my DMs, bro
I ain’t ever gonna fuck you, I ain't your 'ho

And I know something you don’t know
You’re all over my feeds taking shots for free
Why you motherfuckers so obsessed with me?
You’re scared to death, you’re scared to look
You know you ten times dumber than your own dog, go read a fucking book
You think I’m blind, that I can’t see?
You can’t even use an apostrophe
So don’t come square up to MY door
Until you can tell me your from you’re
You don’t wanna battle, you're too scared to even use your own name
Hold my earrings, bitch, I'm burning your shit down to the ground with white-hot flames
Using my REAL name
Cause two can play at THIS game
And I got better things to do in REAL life
Than argue with you motherfuckers online like you my fuckin' wife
Fuck a beat, I’ll go acapella
Fuck a tweet, fuck a MAGA, fuck a blog, fuck a lawyer
Fuck you School House Rock mouth-breathers and illegal employers
I’m an SJW I’ll say it proudly
And fuck this battle, I’m gonna win it someday, I’m outtie.
Now tell these people something they don’t know about me. 

Monday, October 28, 2019

What We're Really Talking About When We Talk About Nudes

I'd honestly never heard of California Congresswoman Katie Hill until she resigned from Congress following the unauthorized publication of sexually provocative, intimate pictures (aka "nudes") of her and a staffer and/or a campaign worker (?) a relationship that is prohibited under Congressional ethics rules. 

There are a few different things going on here, and it's interesting to unpack them.

First of all, having a relationship with a subordinate at work is a very bad idea. It is unethical or even illegal, and it is almost always very ill-advised because the power dynamic in the relationship is inherently exploitative. It is not out of the realm of normal, I don't think, for the party in the superior position to resign their job because of such a lapse in judgment.

That is an entirely different question from whether it is a bad idea for women (and also men, although they've been conspicuously absent from this conversation) to exchange nudes with intimate partners as a more general matter. 

Some people argue that women should never, ever let anyone take nude photographs of them or take nude selfies because they can only harm women in the future and serve no other purpose. But I would argue that they do serve a purpose and also are not the problem. 

The unauthorized disclosure of nudes--aka "revenge porn" is the problem, not the pictures themselves. Society needs to punish the vindictive, unauthorized release of nudes, not tell women they should never take them. I went to law school with a woman, Carrie Goldberg, who specializes in this burgeoning area and, a victim of revenge porn herself, has a practice dedicated to protecting women from it.

Although some people perhaps wish it weren't so (at no time in history has there ever been a shortage of pearl-clutching around erotic art) the reality is that nudes are a normal part of intimate modern relationships. That’s a fact and it's not going to change. Scolding and shaming women over nudes because someone might later weaponize them robs women of agency and places the blame for malicious conduct on victims instead of where it belongs: on perpetrators of this type of harassment.

Furthermore, the logic of “don’t take nudes because you assume the risk of their disclosure” also applies to many other situations that the law protects: having a nice car or a house (you might get robbed) wearing a miniskirt (you might get raped) or arguing (you might get assaulted). Yet we don't suggest that people shouldn't have nice cars or stand up for themselves. Life is a series of calculated risks, and we need not cater all of our lawful conduct to criminals.

Nudes also serve the simple, human purpose of pleasure--women's and men's alike. For many people, nudes are a form of expression, art, eroticism, and sexual agency. There is nothing wrong with exchanging nudes with trustworthy intimate partners and consenting adults who have equal power in a relationship.

So what are we *actually* talking about when we talk about nudes, then?

What we are really talking about in this whole Katie Hill nudes scandal is the perpetual shaming of women's sexuality. We are blaming the exposure of--and attacks upon--women's bodies against their will on the victim of the illegal or unauthorized conduct, rather than addressing the perpetrators. We are saying, shame on her, she shouldn't have done that, she deserves it, she assumed the risk, and so on.

And why are we doing that? We are doing that because it's easy. It is much easier to sit in judgment of women's sexual expression than it is to hold men accountable for violating their bodies and their trust. And that's fine, but let's at least be real and honest with ourselves about what we're really talking about when we talk about nudes.

Image: Shriver Report