Waging Lawfare Against the Left

In an article with a brazenly deceptive title, “Third Party Contenders Not a Factor in 2020,” U.S. News & World Report proceeded to provide evidence that third-party contenders most definitely will be a factor in deciding what is certain to be a very close presidential election in November.

Consider the magazine’s take on these two battleground states. Wisconsin: “a recent New York Times/Siena College poll has Biden with 48% support, Trump with 45%, and Libertarian candidate Jo Jorgensen with 2% support.” Pennsylvania: “Biden with 48% support, Trump with 45%, and other candidates getting 2% support.”

In the case of Pennsylvania, note the deceptive reference to “other candidates.” What they really mean is Libertarian Jo Jorgensen. Because in a court ruling just handed down in Pennsylvania, based on a technicality, Green Party presidential candidate Howie Hawkins will not be on the ballot. A similar fate befell Hawkins in Wisconsin, where a slim majority on the court denied the Green Party contender a spot on the ballot.

Thanks to legal decisions, in two crucial battleground states where Trump won by less than 1 percent in 2020, there is a Libertarian Party candidate on the ballot willing and able to steal Trump votes, but no Green Party candidate to siphon off socialist voters and Bernie Sanders die-hards. This benefits Biden.

As anyone who can remember the court-adjudicated outcome in Florida back in 2000 will attest, it’s impossible to overstate the importance of legal rulings that can affect a presidential election. And what happened this week in Wisconsin and Pennsylvania courtrooms could be just enough to change the 2020 outcome.

The American Battleground of Lawfare

According to lawfareblog.com, the term “lawfare” originally emerged in the 1950s in contexts “ranging from divorce law to courtroom advocacy to colonialism to airfare for lawyers.” And, at least since 2010 when this term resurfaced, “its most prominent usage today very much concerns national security.” Hoping the still-active lawfare blog will indulge this expansion of the definition, “lawfare” seems an apt word to describe the growing role attorneys and courts have in deciding the future of America. And using the term “lawfare,” which connotes war, gives the ongoing legal conflicts that will determine our future the weight and intensity it deserves.

A good example of how the Left uses lawfare, with no opposing forces to hold them in check, was the relationship between Barack Obama’s Environmental Protection Agency and litigants representing powerful environmentalist nonprofits. In what an R Street Institute report called the “Sue and Settle era,” “the Obama administration’s EPA chose not to defend itself in more than 100 lawsuits brought by special interest advocacy groups and paid out $13 million in attorneys’ fees in such cases.”

While $13 million is insignificant compared to the billions shoveled into environmentalist nonprofits by liberal foundations, the deeper significance of this uncontested lawfare was that, as R Street reports, “sue and settle became one of the primary avenues to formalize major regulations, including the Clean Power Plan’s proposed constraints on carbon emissions as well as recent mercury and air-toxin standards.”

This process isn’t restricted to the EPA, or to purely environmental issues. Leftist activist groups sue a friendly federal bureaucracy, the bureaucracy immediately settles, and then using the court’s consent decree as cover, they co-write transformative new regulations. Whenever there is a Democratic administration—and often enough when there is not, because the bureaucracies remain dominated by progressives—this process of using lawfare to generate new regulations rips its way through every executive agency.

Green Lawfare Across the Nation

For years, Americans living in the Western United States knew that by suppressing both the logging industry and natural wildfires, their forests were becoming dangerously unhealthy. Trees at many times their historic density were stressed and dying, turning literally hundreds of thousands of square miles of forest into tinderboxes. But rural communities could not thin the nearby forests because of environmentalist litigation.

Examples of this go way back, and happened in every state. 

In Arizona, the Phoenix-area newspaper East Valley Tribune in 2003 described the difficulties that common-sense forestry managers were having in a story headlined, “Lawsuits stall forest thinning.” In 2015, well before the devastating round of wildfires in 2018, the Sacramento Bee published an article, “Anti-logging lawsuits hurt fight against forest fires.” 

And even now, after the 2020 wildfires that are already worse than ever, in August the New Mexico Forestry Industry Association, in a press release, claimed that ongoing lawsuits are “killing many of the small businesses that are critical for protecting our water and forest ecosystems from catastrophic wildfire.”

In California, a hotbed of green lawfare, it wasn’t just active litigation that prevented forest thinning, but a web of regulations that in part were the result of previous litigation and consent decrees. 

For example, after fires obliterated the town of Paradise in 2018, residents of nearby Berry Creek tried to get permission to thin overgrown forests along evacuation routes. Local officials complained “the environmental reviews were too cumbersome and too time-consuming for a nonprofit to tackle. They required archaeological studies, landowner permission slips, bird surveys and more—making the process arduous to the point of inaction.”

Berry Creek is now a pile of ashes, and 15 people are dead. They couldn’t get out. If over the past few decades, lawfare were waged by the Right as aggressively as it has been waged by the Left, the outcome may have been different.

How Lawfare Affects Crime and Punishment

By now most everyone involved in politics is aware that George Soros not only has been bankrolling radical organizations with uplifting names, or pouring money into marquee political contests, but he is also picking off district attorney elections. 

Until recently mostly under the radar, Soros, along with other wealthy liberals, has spent millions over several years to get criminal-friendly district attorneys elected. A recent Los Angeles Times article provides comprehensive details and surprising balance regarding how Soros money has transformed criminal justice in major cities across the nation.

When Soros shovels money into district attorney races, he is engaging in yet another form of lawfare. District attorneys have perhaps unwarranted power and discretion. As it stands today they can choose to ignore serious crimes. Cities where Soros money played a critical role in successful campaigns for district attorney include Philadelphia, Houston, Chicago, San Francisco, St. Louis, and Phoenix. Cities currently facing an election with a Soros-backed candidate include Los Angeles, San Diego, and elsewhere.

America’s cities are in embarrassing, tragic decline wherever progressive politicians have taken power. But lawfare—in the form of litigation but also in the form of prosecutors who are leftist radicals—affects as much if not more policy than elected officials. Which brings us to the judges.

Activist Judges Are Lawfare Incarnate

While the term “activist judge” jokingly can refer to any judge with whose rulings you disagree, the philosophy of judicial activism poses a serious challenge to defenders of the Constitution, and proponents of judicial activism are almost always leftists. 

When considering some of the astonishing rulings coming from activist judges—such as the Ninth Circuit ruling in 2006 that homeless vagrants cannot be detained unless they can be offered free housing—it is easy to see why activist judges are yet another front on the battlefield of lawfare.

While many blue state courts are hopelessly in the grip of activist judges, the battle for control of the federal court system remains in furious conflict. According to the Pew Research Center, as of July, of the active federal judges, Trump, the Bushes, and Reagan appointees account for 392, while Obama, Clinton, and Carter appointees account for 400. 

What about the critical circuit courts of appeals?

The chart below shows the makeup of the circuit courts based on whether or not the judges were appointed by a Democrat or a Republican president. The GOP advantage is much higher among senior circuit judges, 76 to 31. This makes the outcome of the 2020 presidential election even more consequential, because although senior circuit judges still rule on cases, as soon as a judge elects to transition to senior status, a vacancy is opened up on that circuit. As can be seen, the vast majority of vacancies in the next four years are likely to be opened up by departing judges who were appointed by Republicans.

The most significant variable affecting the role of judges in America’s political fate, of course, is the U.S. Supreme Court. 

The death of Justice Ruth Bader Ginsberg may not result in Trump successfully naming her replacement, since several Republican senators in close races may decide it is politically impossible for them to vote to confirm a new justice so close to the election. But even if Trump does appoint one more justice before the end of his first term, a Biden victory still could overturn the balance of power on the court. 

If Biden gets elected, the Democrats in Congress have declared their intention to expand the U.S. Supreme Court, and the circuit courts, to create new vacancies that would allow them to acquire an instant majority. There is nothing in the U.S. Constitution that would prevent them from doing so.

In all areas of lawfare—aggressive litigation in all sectors of society including shaping election outcomes, “sue and settle” collusion with government bureaucracies, and activist prosecutors and judges—the American Left and their billionaire backers are willing to bend the rules and spend whatever it takes to achieve their ends.

Lawfare, defined here as legal warfare to set public policy, often beyond further recourse, is a battlefield where conservatives have to meet force with equal or greater force, lest everything else they fight for, and all their victories, are nullified.

About Edward Ring

Edward Ring is a senior fellow of the Center for American Greatness and co-founder in 2013 of the California Policy Center.

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