It is no secret that Donald Trump has a problem with the rule of law: undermining the FBI, needing to get the Ninth Circuit Court of Appeals “split,” possibly obstructing justice himself, and lately accusing Democrats lawmakers of treason.
However, for every dictator, there are petty dictators: infant variations with a number of the bark and not one of the bite. Just take the otherwise unremarkable Cris Dush, currently serving his second term as a Pennsylvania state representative. In Februarys, Dush’s biggest claim to fame is that his district includes the town of Punxsutawney, home of Groundhog Day.
However, Monday, Dush grabbed headlines for proposing to impeach five justices of Pennsylvania’s state supreme court, because of its fearless crime of ruling a way he did not enjoy.
But as with many these politicians, it’s difficult to know how seriously to take Dush. On the one hand, he can just be pandering to his base, sending a ridiculous memo to his coworkers at legislature as a means of garnering press coverage like this article, and of bragging about it at the next election cycle.
On the other hand, perhaps Dush really believes what he’s saying. Maybe he’s not a canny opportunist but an angry white guy who watches Fox & Friends every morning and has no clear comprehension of the rule of law, the separation of powers, and how democracy works. Sound familiar?
Oddly enough, the context for Dush’s memo is itself about democracy and the rule of law: voting rights.
Last month, the Pennsylvania Supreme Court invalidated the commonwealth’s voting districts for being unconstitutionally gerrymandered to favor the Republican Party. Regardless of the state having more registered Democrats than Republicans, Republicans hold 13 of 18 congressional seats. Furthermore, the court ordered that a new map to be accepted by February 15, and threatened to draw its own map when the legislature and governor failed to agree.
On Monday, the United States Supreme Court let that ruling stand. While the Court is contemplating a partisan gerrymandering case of its own, Gill v. Whitford, the Pennsylvania ruling was carefully worded to be based solely on the Pennsylvania constitution, not any federal statute or provision. Ordinarily, and here, the Supreme Court defers to state courts’ readings of their constitutional provisions.
The identical afternoon of the Supreme Court’s action, Dush delivered his impeachment memo. Curiously, it did not focus on the substantive problem of partisan gerrymandering, and that’s what this controversy is actually about, but on a silly conception of separation of powers. Ordering the legislature to draw out a map, Dush composed, “overrides the state legislative and executive authority” of the Pennsylvania constitution, the Court claimsthat “clearly lays out the route that a bill has to have to become law.”
Moreover, “the five justices who signed this order that blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, participated in misbehavior in office.”
Both of these claims are wrong.
First, it’s quite common for courts in redistricting cases to order that a new map be attracted by a certain deadline, or threaten to draw out a map. That’s occurred before in 12 states, with courts drawing their very own in eight. While Dush has reportedly watched Schoolhouse Rock and understands how a bill becomes a law, he’s apparently not read Article III of the U.S. Constitution, its own parallel provisions from the Pennsylvania constitution, or any of the applicable caselaw.
Secondly, and more importantly, Dush’s memo conflates inherent interpretation with judicial misconduct. Maybe nearly all the Pennsylvania Supreme Court did err in ordering a new map to be attracted, but even when they did, that’s not misconduct. Misconduct means things like disobeying a direct court order (which Joe Arpaio and Roy Moore did), obstructing justice (which Donald Trump might have completed), or even lying under oath (like Scott Pruitt did) or violating canons of conduct and ethics (like Devin Nunes did).
Were Dush another third-rate state legislator, this controversy would not mean much. There is no proof that GOP leaders at the state house are taking him up on his suggestion. They’re doing what political adversaries should do: submitting a new claim in the district court to enjoin the order whilst attempting to comply with the current one. No doubt, they will be working hard to make a map that still favors their celebration, but doesn’t favor them as egregiously since the last map.
That is still dirty politics, but both parties do it, it’s entirely within the law, and it’s how the system works.
However, Dush’s suggestion is emblematic of a blueprint of right-wing Republicans disparaging our civic institutions when they do not agree with what they say. The worst offender, naturally, is the president, who has disparaged the FBI, federal court judges, and the free press in a way that no American president, Democrat or Republican, has done.
Never in our nation’s history (though many times in others’) includes a leader called members of the opposition “treasonous” because they didn’t applaud his address, perplexing loyalty to one’s nation with loyalty to its leader.
Likewise Arpaio’s flaunting of a judicial order demanding that he dismantle his concentration camp for those suspected of being “illegals,” and Trump’s outrageous pardon of him. Likewise Moore’s order that Alabama clerks under his oversight refuse to comply with the Supreme Court’s conclusion on same-sex union. The list goes on and on.
Of course, Cris Dush merely wishes he were Joe Arpaio — let alone Donald Trump. He would be lucky to be Kentucky Clerk Kim Davis, another petty government officer who thinks her personal beliefs trump the rule of law.
But as history repeats itself first as tragedy, then as farce, so too the authoritarianism of the Tweeter in Chief has trickled down to the likes of Dush. Egged on by Fox News, for whom no simple fact is true when you do not like what it states, thousands of mini-Trumps are spreading across the nation like a red, itchy rash. And even though this outbreak will go away, the disease is still progressing.