It’s no secret that Donald Trump has a problem with the rule of law: undermining the FBI, wanting to have the Ninth Circuit Court of Appeals “broken up,” possibly obstructing justice himself, and recently accusing Democrats lawmakers of treason.
But for every dictator, there are petty dictators: baby versions with some of the bark and none of the bite. Take the otherwise unremarkable Cris Dush, currently serving his second term as a Pennsylvania state representative. In most Februarys, Dush’s greatest claim to fame is that his district includes the town of Punxsutawney, home of Groundhog Day.
But Monday, Dush grabbed headlines for proposing to impeach five justices of Pennsylvania’s state supreme court, for the audacious crime of ruling a way he didn’t like.
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Now, as with many such politicians, it’s hard to know how seriously to take Dush. On the one hand, he may simply be pandering to his base, sending a ridiculous memo to his colleagues in legislature as a way of garnering press coverage like this article, and of bragging about it in the next election cycle.
On the other hand, maybe Dush actually believes what he’s saying. Maybe he’s not a canny opportunist but an angry white man who watches Fox & Friends every morning and has no clear understanding of the rule of law, the separation of powers, and the way democracy works. Sound familiar?
Appropriately 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. Despite the state having more registered Democrats than Republicans, Republicans hold 13 of 18 congressional seats. Furthermore, the court ordered a new map to be approved by February 15, and threatened to draw its own map if the legislature and governor failed to agree.
On Monday, the United States Supreme Court let that ruling stand. While the Court is considering 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. Normally, and here, the Supreme Court defers to state courts’ readings of their own constitutional provisions.
The same day of the Supreme Court’s action, Dush sent his impeachment memo. Curiously, it didn’t focus on the substantive issue of partisan gerrymandering, which is what this controversy is really about, but on a silly conception of separation of powers. Ordering the legislature to draw a map, Dush wrote, “overrides the express legislative and executive authority” of the Pennsylvania constitution, the memo states, which “clearly lays out the path a bill must take to become law.”
Moreover, “the five justices who signed this order that blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, engaged in misbehavior in office.”
Both of those claims are incorrect.
First, it’s quite common for courts in redistricting cases to order that a new map be drawn by a certain deadline, or threaten to draw a map themselves. That has happened before in 12 states, with courts drawing their own in eight. While Dush has apparently watched Schoolhouse Rock and knows how a bill becomes a law, he has apparently not read Article III of the U.S. Constitution, its parallel provisions in the Pennsylvania constitution, or any of the relevant caselaw.
Second, and more importantly, Dush’s memo conflates constitutional interpretation with judicial misconduct. Perhaps the majority of the Pennsylvania Supreme Court did err in ordering a new map to be drawn, but even if 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 may have done), or lying under oath (like Scott Pruitt did) or violating canons of conduct and ethics (like Devin Nunes did).
Were Dush just another third-rate state legislator, this controversy wouldn’t mean much. There’s no evidence that GOP leaders in the state house are taking him up on his proposal. They’re doing what political adversaries ought to do: filing a new claim in the district court to enjoin the order while attempting to comply with the current one. No doubt, they will be working hard to create a map that still favors their party, but doesn’t favor them as egregiously as the last map.
That’s still dirty politics, but both parties do it, it’s entirely within the law, and it’s how the system works.
But Dush’s proposal is emblematic of a pattern of right-wing Republicans disparaging our democratic institutions when they don’t agree with what they say. The worst offender, of course, 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 ever done.
Never in our country’s history (though several times in others’) has a leader called members of the opposition “treasonous” because they did not applaud his speech, confusing loyalty to one’s country 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 supervision refuse to comply with the Supreme Court’s decision on same-sex marriage. The list goes on and on.
Of course, Cris Dush only wishes he were Joe Arpaio – let alone Donald Trump. He’d be lucky to be Kentucky Clerk Kim Davis, another petty government official who thinks her personal beliefs trump the rule of law.
But just 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 fact is true if you don’t like what it says, thousands of mini-Trumps are spreading across the country like a red, itchy rash. And even though this outbreak will go away, the disease is still advancing.
