Depending on who’s doing the talking, the first two years of the Trump administration has been an affront to the criminal justice system, LGBT community, people with disabilities and civil rights in general. Or, President Donald Trump is doing exactly as candidate Trump promised and was elected to do.
Those divergent viewpoints were at the center of a debate during an ABA CLE Showcase Program: “The Trump Administration and Diverse Committees: A Kaleidoscope of Controversies,” held Aug. 3 during the American Bar Association Annual Meeting in Chicago. The program, sponsored by the ABA Commission on Racial and Ethnic Diversity in the Profession, was moderated by U.S. Circuit Judge Bernice B. Donald of the United States Court of Appeals for the Sixth Circuit.
“I have not met President Trump. I do not work for him and I do not speak for him,” said Scott Douglas Gerber, a professor of law at Ohio Northern University and visiting professor of political theory at Brown University, who provided ideological diversity on the panel and defended the president’s approaches to many of the issues discussed.
“But [Trump] is correct about issues we are discussing today in my opinion,” Gerber continued, saying that the Declaration of Independence informs his thoughts about the diverse community matters being discussed.
“In a nutshell, civil rights in the United States are individual rights and not group rights. I am troubled by the overuse of identity politics by President Trump’s critics. President Trump won the election and as President [Barack] Obama famously said, ‘elections have consequences,’” Gerber said.
One of those consequences, according to Paula Neira, clinical program director for transgender health at Johns Hopkins, is the Trump administration’s policies endangering LGBT rights, such as the president’s attempts to ban transgender people serving in the military.
Neira, a U.S. Naval Academy graduate and retired decorated surface warfare officer, expressed opposition to the proposed ban. “A yearlong study conducted by the military found that there is no reason why transgender individuals shouldn’t be able to serve authentically in the military. Nor shouldn’t they have access to medical and necessary health care, the same way that we provide health care to anyone else in the service,’’ she said. “The rationales presented by the administration against allowing openly transgender individuals to serve are that it costs too much and secondly, it would disrupt cohesion in military effectiveness. The problem is that is completely a set of ‘alternate facts’ that ignores the facts.”
Rebecca Cokley, executive director of the National Council on Disability, spoke about the Trump administration’s impact on people with disabilities. She said that gains have been made since the passage of the Americans with Disabilities Act in 1990, but people with disabilities still do not have full and equal access to health care – and that policy rollbacks by the Trump administration will only make the situation worse. She cited policies dealing with work requirements for social programs, health care coverage of pre-existent conditions, the tax bill and its effects on nutrition programs, the Justice Department’s recent decision to withdraw rules related to the accessibility of medical equipment and furniture and other possible setbacks.
“Continuing to fight for the preservation of Title III of the Americans with Disabilities Act is one of the most important things that we can be doing right now, she said.
Angela Davis, law professor at the American University College of Law, said there has been a drastic change in criminal justice under the Trump administration.
Davis suggested that “the direction this administration is going in is the wrong direction.” She cited the many rollbacks of criminal justice reform under attorneys general Eric Holder and Loretta Lynch in such areas as mass incarceration, reduction of use of private prisons by the federal government, overhauling the charging and plea-bargaining practices, considering alternatives to incarceration, reviewing mandatory sentencing and expanding compassionate release of elderly inmates.
“No matter what side of the aisle you might sit on, I would suggest to you that the policies and practices being implemented now are contrary to science, research, evidence and to public opinion and where this country really wants to go,’’ Davis said.
In his rebuttal, Gerber said the military transgender issue, as the White House has stated, was a military decision “based on what’s best for the military.”
He said most of the opposition from the disability groups stems from President Trump’s recent decision to impose work requirements on federal assistance programs. “The president tweeted that no one has done more for people with disabilities than he has,’’ Davis said. “I surely doubt that President Trump is trying to hurt people with disabilities. He simply disagrees with Rebecca and others about how best to help them. He won the election and he is entitled to try it his way.”
Gerber admonished Davis for singling out Holder and Lynch for “praise,” saying Holder is the first attorney general ever to be held in contempt of Congress and that Lynch was recently criticized by the DOJ’s inspector general for politicizing the office. “We should look to others as role models on some of these issues,” he said, adding that Holder “should have been removed from office or resigned.” Gerber also added that President Trump supports prison reform and noted that many of his actions in this area have been driven by his son-in-law Jared Kushner, whose father served time in prison.
Gerber summarized the issues raised by his fellow panelists this way: “It is clear to me that my colleagues on this panel have policy differences with President Trump and I strongly suspect that they voted for Hilary Clinton and had hoped she would win the election. She did not.”
“President Trump won the election and he is entitled to try it his way.”
At the end of the 90-minute program, which included spirited give-and-take not only among the panel but also during a question-and-answer session, with most questions directed at Gerber, moderator Donald closed with her thoughts.
“We are a nation of diverse people, diverse views, diverse races, religions, ethnics, sexual orientations,” the judge said as if speaking from her courtroom. “We are diverse. And we’d like to say that diversity makes us stronger. But it only makes us stronger if we respect those differences. And we get to a position of respect by hearing other voices. Hearing means active listening, not just always being ready to rebut.
“We can disagree in our differences but we must first listen and hear that other person’s story. And in hearing those stories, and accepting and listening and evaluating honestly different views, that’s when we build that strength. We have three separate and coequal branches of government. All of those have distinct functions. We as citizens have rights and responsibilities. And throughout our evolution, we must continue to honor all of those rights and responsibilities, all of the amendments. We must make certain that we seek to make and keep our institutions strong. We may differ, but we must try and elevate our conversations to the policy level and always have those tempered with respect,” she said.