Our third Small Stones interviewee has requested anonymity. She is a civil rights lawyer actively working on what we non-legal minds like to call The Legal Resistance (hey, it sounds cool). We hope this interview will be just her first foray into educating laypeople about what’s going on in government and the implications it may have for our lives.
As you might expect, she’s experienced some pushback, and therefore we’ll be keeping her identity under wraps. Though we can’t tell you who she is, we’re happy to be able to publish our conversation in full below. Read on to find out what keeps her heading into work each morning, despite some very real misgivings about where the system is headed.
Small Stones (SS): How would you define what you do? I’ve been poking around your firm’s site, and it seems like you deal with a lot of good things!
A Lawyer (AL): I say I’m a civil rights lawyer, but I also do workers’ rights and consumer protection. I do a lot of “this looks important and interesting and like I could be useful. I’ll do that for a while.”
SS: That’s actually an excellent segue to my most pressing question. How are things different for you all, day to day, under this administration?
AL: A few ways, I think. First, when everyone thought Hillary would be elected, we had all of these plans about how we would push forward and make the world better, and we still have those, and some of them are still viable. But a lot more of what we do now is trying to protect the status quo.
With Scalia’s death and the new appointment, we were gearing up to try to get a bunch of things before the Supreme Court , and now we’re on the defensive. And that’s true with everything.
SS: As a layperson, it’s been a bit disheartening to see how many governmental norms are really dependent on everyone agreeing that they are norms.
AL: Yeah, I’m embarrassed to admit it, but I’m definitely one of the people who didn’t realize how fragile everything really was—and just how quickly it could change when everyone decides to just stop agreeing.
SS: A lot of what we think of as ordinary for a president—a lot of what has been ordinary in the past—seems to fall into this category of things.
AL: Yes, for sure. I also assumed that the obstructionism and seeming evilness (bad word, but maybe ‘lack of empathy’ is better?) of other Republicans was, at least for many, a political strategy of being in the minority. I didn’t expect quite so many non-Trump people to be quite so terrible once actually in power.
SS: What is the most terrible, from a legal perspective?
AL: In terms of long-term impact, I honestly think the thing that will be most terrible is the thing that would have happened with Republicans in control of the Senate and the presidency no matter what, which is the judiciary is going to become much more ideological and much more conservative—Democrats tend to appoint moderates, while Republicans tend to appoint movement conservatives—not just on the Supreme Court, but the lower courts.
This means all sorts of legal doctrines that have already made it very difficult for poor people, vulnerable people, people of color to fight back against big corporations or the government are going to get worse.
SS: Will all progress made under the Obama administration simply be wiped away?
AL: In terms of the judiciary, Obama put very little political capital into appointing judges, so he left a lot of seats open, which means it’s going to swing way right—and way more political.
SS: Is there any way to push back on this, or is this simply how the system is set up to function at this point?
AL: Hard to say. I mean, if the Democrats take the Senate in 2018, that’ll help, because then Trump won’t be able to confirm judges. Trump generally being a buffoon and not getting it together to appoint, well, anyone, on a reasonable time frame also helps. For what it’s worth, I think it’s very unlikely Dems will take the Senate in 2018.
Other than that, I think with the judiciary, we’re pretty much screwed in a way that’s hard to fight and hard to come back from.
SS: From where I’m sitting, that’s incredibly frustrating to hear—both pieces. The majority of the country is not behind this. So what’s keeping 2018 from swinging left?
AL: To me, actually, that’s the most frustrating—if I thought everyone here wanted this and I was just in the minority, I’d probably be less frustrated (and more likely to move!). But the Senate has a really bad map.
I think the chances of retaking the House are higher, but I’m still not as optimistic as some other folks are. There’s lots of mobilization, which is awesome, but there’s an incredible amount of voter suppression, and, I suspect, in some places outright tampering.
SS: It doesn’t seem to be mentioned often that this was the first election post [striking down of the] Voting Rights Act (VRA).
AL: Right. I think that had an impact and will have an even bigger impact in 2018. Even if you assume none of the machines themselves are tampered with, you have all of the money going to machines in the rich neighborhoods and poor neighborhoods in Detroit have shitty, broken machines, so they have crazy long lines and more provisional ballots.
SS: And less ability to remain in that line.
SS: I read a month or so ago the number of people taken off the rolls recently in a former VRA state—of course now I can’t remember number or state, but it wasn’t good.
AL: Numbers greater than Trump’s margin in states Hillary needed to win.
SS: So what’s next then? Go down fighting? As far as I know, you’re still going to work in the morning.
AL: It does feel really weird to feel like we might be seeing the end of the political system as we knew it. I mean, yes and no? I don’t think it’s hopeless. I think there is some chunk of people who will, well, die because of this administration, and a bunch more whose lives will be made much, much more difficult, but I think there are things we can do. First, I think we can fight—and people are fighting—to protect as many people as we can right now. So, to me, that means lobbying, making calls, bringing civil rights lawsuits, and to some extent that’s working. The Muslim ban, for now at least, is not in effect, and they’re having a really hard time with healthcare. And the budget wasn’t the worst.
SS: From a historical standpoint, that’s been true at all times in US history, that people have died due to policy, that their lives have been made much, much more difficult. It just seems broader at the moment.
AL: I think it’s worse now than it’s been in our lifetimes.
But long term, I think there’s a lot we can do. Civil rights lawyers are trying to keep things out of the Supreme Court, finding places to make good law and prevent bad law just to protect the status quo, [and] using the courts while we still can to challenge things like voter suppression. There’s also building grassroots support, mobilization, running candidates for office, etc.
SS: What about those of us sitting in very blue districts? And here’s a very basic legal question: Am I doing more harm than good by calling a California rep who is not my own?
AL: Honestly? I think sending money and making calls for candidates. I’ve heard differing views on [calling other reps], but I think it’s probably neutral at worst. I don’t think it’s harmful. I mean, the very best thing people in blue states could do is probably move.
You can also call Paul Ryan, Mitch McConnell, and other folks in leadership positions who are supposed to be representing us all.
On a California note, I’ll be interested to see what [Senator Kamala] Harris does. As Attorney General, she was super cautious and refused to take a stand and actually get things done because she was planning to run for Senate and didn’t want to get embroiled in anything. I’ll be interested to see if she lets go of that now that she’s made it, or if she continues to do that hoping for president.
SS: From where I stand, it’s hard to muster respect for anyone who thinks they can continue to play a long political game at the moment.
AL: I think to some degree the winds on that have changed and smart Dems realize that their base actually want them to be brasher, more outspoken, less moderate.
SS: This must be strange, to have become a lawyer just in time to really understand what’s up, as much as anyone does, and probably to find it fascinating, on a professional level, and yet… kind of horrifying at the same time
AL: Yes. I’m really grateful to have this tool that can do something to help, but at the same time, sometimes I wish I didn’t quite get the gravity of what’s happening. For example, Congress keeps passing laws rolling back regulations, and the Trump administration keeps doing or threatening to do things administratively that are terrible that, as far as I can tell, most non-lawyers haven’t even noticed. I wish I didn’t know about those.
SS: What are the things you would most like others to push back on?
AL: Two things: First, there’s a bill that passed the House that’s now in the Senate that would essentially make it impossible to bring a class action lawsuit.
SS: Wait, really?
SS: Yeah, that’s not being talked about at all.
AL: We fought super hard to try to prevent it from passing the House, and there were several Republican defectors, and I’m still hopeful about the Senate. It would essentially be a license for all sorts of corporate misconduct because, in many cases, lawsuits are really the main deterrence for misconduct, and they’re often too expensive to bring except as a class action.
By the way, that bill is HR 985, and it’s called the “Fairness in Class Action Litigation Act.”
Second, there’s grumbling about dismantling or weakening the Consumer Finance Protection Bureau (CFPB), which has done a ton to protect consumers from predatory corporate conduct and would, again, make it much easier for big corporations to screw poor people.
I guess both of these examples go to a larger point, which is that the Trump administration is engaged in all sorts of civil rights abuses that are terrible and that we need to fight, and people are fighting a lot of the shit the government is doing to them directly.
But behind all of that, and less obviously, the government is making it way easier for corporations to do terrible shit as well, which is both problematic from a wealth inequality standpoint, but also dangerous (think, e.g., Takata airbags), will allow increased discrimination etc., and that stuff is going pretty much unnoticed.
SS: So what is most effective form of resistance we can take? And giving money to legal groups is a completely acceptable answer.
AL: I think giving money to legal groups is great! I highly recommend it. But I think there are other things that can help, too: I think part of the problem is that the impact of a Muslim ban is immediately obvious, while the impact of a lot of these other things is not to most people, and so there’s a lot of translation work that needs to happen.
SS: Are there people who are doing that work?
AL: Not enough.
SS: Where would you recommend a layperson go to learn more about this side of things? And where might a layperson who wanted to DO this kind of work find space for that?
AL: It’s one of the things I think it’s really important I do more of! So, the first question is hard, because it’s decentralized.
SS: Where do you get your news?
AL: Twitter! For real.
I could send you someplace to learn about the class action law or to learn about the CFPB, but I actually don’t know of anyone who’s doing a great job keeping track of all of these things together in the way that there are folks doing for healthcare, the Muslim ban, Russia, etc. I think lawyers, and interested non-lawyers, need to be doing a lot more writing and speaking to a lay audience on this stuff–e.g. Slate, New York Times, Twitter, cable etc.
SS: Any particular Twitter handles you’d recommend?
AL: Well, some Twitter accounts I follow that have info on some of the less well-known stuff going on behind the scenes are @USChamberWatch, @Public_Citizen, @RealBankReform, @impactfund, @FPBland, @NCLC4consumers, @Public_Justice. And those are just a few.
SS: By the way, I think Silicon Valley’s role in all of this is fascinating and infuriating. For all their talk of disruption and reinvention, nobody there has any clue how to handle the actual social ramifications of what they’re doing. They are fundamentally wed to the present system.
AL: I would say that they’re rich, largely white, largely men, and so the kinds of things they see as problems are… different than a lot of the rest of us.
SS: A limited world view that they have no idea is limited.
AL: Yeah. I mean, I get very frustrated with the idea that so many Silicon Valley people have that you can be apolitical or that a thing you build, like, say, Twitter is apolitical.
SS: It’s easy to be apolitical when you can afford everything out of pocket.
AL: Right. If politics basically doesn’t affect you, it’s fine to be apolitical. That is, fine for you.
SS: So I don’t forget, now that a bit of time has passed since the Muslim ban executive orders, what was that experience like from your standpoint, as a lawyer at the airport?
AL: It was crazy! So, I’m not an immigration lawyer, and immigration law is a morass of arcane, difficult-to-understand regulations, so on that front there was nothing I could do. But on the other hand, I am a lawyer who does civil rights work anyway, so…. The day after he signed the immigration ban was supposed to be my birthday party, but they were detaining people at the airport and needed help.
I couldn’t bear to throw a party when I could be actually doing something, so I went down to the airport to try to help with the lawyering, and the people who were going to come to my house also went to the airport to protest.
SS: In retrospect, it really seems like a one-two punch meant to disorient people.
AL: Yes, I think that’s probably right.
SS: Legally, someone must have known it wasn’t going to stand. Or was the point simply pandering to the base and destabilization?
AL: My understanding is that they didn’t run it by many people, so who knows if someone said, “Hey guys, this thing is really unconstitutional,” but I don’t think they cared too much. They got to create chaos, pander to the people who hate immigrants, give license to Customs and Border Patrol to do whatever they wanted, and then have an easy excuse for terrorism (“It’s because those liberal courts didn’t let my racist executive order stand; clearly we need to crack down.”) I mean, obviously, I have no real idea what’s going on in these people’s heads, but that’s just my guess.
SS: The extent to which Customs and Border Patrol did just that is worrisome.
SS: Were they simply trying to become evil villains?
AL: Well, if they were, they certainly succeeded. I mean, it’s hard for me to see it any other way. Even if the ban is never actually implemented, I think the bare expressive harm it caused and continues to cause is huge. [SS: An expressive harm is an expression of contempt, hostility, or disregard for members of a group]. It’s hard to separate from all the other evil, shitty things, of course, but, at least as a package, the degree to which both private citizens and government officials now seem to feel free to abuse people because of the color of their skin, religion, etc., is appalling.
SS: From my perspective, it seemed as though the judiciary really did come through in that instance.
AL: Yes, agreed. So, I will say I don’t think the judiciary is going to be transformed overnight, especially with the slow confirmation process.
SS: Do local elections matter when it comes to judges? I often see them on the ballot and am kind of shocked at how little I know about the candidates.
AL: Oh, yes, they matter! Most criminal cases, for example, are state court cases.
SS: Any good resources you can think of to help people keep track, I’d love to include.
AL: But judicial elections and their importance and problems is a whole other topic! A great place to look if you’re interested is http://iaals.du.edu/quality-judge.
SS: Thank you! Generally, we [at Small Stones] are approaching things through the lens of education. I think most of the people we are talking to or hoping to talk to are educators one way or another. It sounds like this is a role you are interested in stepping towards, even in a non-traditional way.
AL: These days, it seems like lots of folks who wouldn’t otherwise be educators have turned out to have to be, yes, that. I think I need to.
SS: Honestly, it sounds like it. I’m pretty well read, keep up reasonably well, and yet have not heard of much of this.
AL: I mean, there’s so much going on. How could you? That’s a problem that I have no idea how to solve.
SS: I’m not sure whether it’s a deliberate problem, but it’s certainly an effective strategy (or non-strategy). Many organizers I’ve been reading who have been organizing for, you know, more than a few months, speak to the importance of individual strengths, abilities, etc. It’s very clear that the only other real option is to be overwhelmed into inaction.
AL: Yes, I think that’s right. It’s easy to see the most outrageous thing of the day and throw everything into fighting that, but I think we’ll go a lot further if we divide and conquer—that is, divide and conquer the issues, not each other. I was just talking with another lawyer about the need for us to have more coordination, such that some people are following certain issues and others other issues, so everything is always covered.
SS: I think what I see happening, now at any rate, and certainly in my own life, is that we’re slipping into some kind of status quo. Throw another immigration ban out there, and it’ll shake things up, but if the creeping changes are the legal ones you’ve pointed towards, it’s harder to keep that initial surge in momentum going. There were many articles around inauguration about how to pick a lane, really dig in, and get things done. I suspect another round of that wouldn’t be bad.
AL: It’s hard to do that because whatever you pick isn’t always, or sometimes ever, going to be the sexy interesting thing. And it’s hard to know what to choose when there are so many things. But I do think there are a ton of people who want to do something but just don’t know what, and if there were some way to easily give them a task or a lane, they would do it, and that would be awesome. I keep wondering what that way is.
SS: Yes, and it’s nebulous—how to know that progress has been made from that tiny task? Things like 5 Calls seem to really work for some people, but then you get people like me, who are repped bluer than blue, and it begins to feel less important, even if that’s not true. That said, there are certainly networks now that didn’t exist before and people being vocal about looking to lock into those networks.
AL: I was pretty excited to see how many people turned up for the Climate March in DC, despite it coming a week after the Science March. It made me hopeful that the momentum isn’t totally being lost.
SS: Anything else you’d like to say to an audience of educators?
AL: Hmmm… only corny things are coming to mind at the moment. To me, educators are the people who stand between us and a world where this always happens because nobody knows any better—or, worse, thinks it’s good—but that’s not what you meant. If I think of anything along the lines of what you actually meant, I’ll send it later!
SS: It’s a frustrating place to end, but as far as that momentum/focus situation, it’s not an easy question. Part of me thinks we should all just go outside until it’s shut down, but then again, they [the government] have the military.
AL: Right. I’ve actually thought about that. Like, I have this body and brain. Is lawyering the most useful thing I can do with them? We’re not that big, and we’re not immune to explosion, and, at least, I’m not good with a gun. So using my body right now is not a great option.
Actually, one thing about educators: I think educators are likely to serve as information clearinghouses or resource clearinghouses. I mean, they always are, but I suspect more so now, especially in communities that no longer feel safe about turning to other parts of the government. So having lists of resources of all of the things, I think, is very useful.