"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
SEATTLE — Immigrant rights activists can continue to challenge what they describe as unlawful U.S. government delays in asylum cases, a federal judge has ruled.
U.S. District Judge Marsha Pechman in Seattle dismissed some arguments raised by the lawsuit in a ruling Tuesday, but she said the activists can pursue their claim that the delays violate the due process rights of detained asylum seekers across the country. The government sought to dismiss the case.
The Seattle-based Northwest Immigrant Rights Project filed the lawsuit in June against U.S. Immigration and Customs Enforcement, which said through a spokeswoman Wednesday that it does not comment on pending litigation.
According to the complaint, migrants seeking asylum after entering the U.S. illegally have had to wait weeks or months for their initial asylum interviews, at which an immigration officer determines whether they have a credible fear of persecution or torture in their home country. After that, there have been long delays in getting bond hearings, which determine whether an asylum seeker will be released from custody as the case proceeds.
They’re doing what they can to keep people locked up for prolonged periods and block asylum seekers from moving forward with their claims,” Northwest Immigrant Rights Project legal director Matt Adams said Wednesday. “What we’ve seen firsthand is many asylum seekers give up after they’ve been locked up for weeks or months without ever getting a bond hearing,” and opt to be deported rather than exercise their legal right to seek asylum.
The group initially filed the lawsuit in response to the administration’s family separations at the U.S.-Mexico border, saying the delays had kept mothers detained at the Northwest Detention Center in Tacoma, Washington, from being reunited with their children in immigration custody across the country. Those plaintiffs have since been released, but the lawsuit seeks class-action status on behalf of thousands of asylum seekers.
The complaint asks the judge to order the government to make credible fear determinations within 10 days and to conduct bond hearings within seven days of an asylum seeker’s request for one.
The government argued that such deadlines are not required by law and that the court doesn’t have jurisdiction to impose them. In its motion to dismiss, the Justice Department argued that because the detainees have only just arrived in the U.S. without being granted admission, they “lack a constitutional right to demand expedited procedures for such hearings.”
Pechman disagreed, saying that because the detainees had crossed into the U.S. they were entitled to greater constitutional protections than the government claimed.
“Simply put, are they ‘excludable aliens’ with little or no due process rights, or are they aliens who are in the country illegally, but nevertheless in the country such that their presence entitles them to certain constitutional protections?” she wrote. “Plaintiffs have adequately plead that they were within the borders of this country without permission when detained, and thus enjoy inherent constitutional due process protections.”
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Despite all of their disingenuous whining about being required to follow the law by mere judges, and Trump’s successful effort to fill the Federal Courts with right-wing jurists, there will be plenty more well deserved defeats for this lawless Administration.
Even the most conservative jurists tend to have a concept of the Constitution, the law, and fairness. Trump and his minions, including particularly his stooges at the DOJ, have little concern for law of any type except when it happens to advance their political agenda. It’s just a political game for them, driven by an anti-American, racist, White Nationalist agenda. That’s not likely to be a successful long-range litigation strategy with judges across the philosophical spectrum.
Many judges are going to require the Administration to comply with Due Process, as is happening here. Significantly, Judge Pechman gave short shrift to the DOJ’s argument that individuals detained at or near the border have no Due Process rights.
The standard to keep in mind regarding the confirmation of a Supreme Court Justice is found in 28 U.S.C. section 455(a): “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Let’s set aside for now the fact that as drafted, the statute seems to apply only to men (did Congress really not envision women judges?). Comments have been made recently about Supreme Court nominee Brett Kavanaugh being “innocent until proven guilty.” That’s actually the standard for a defendant in a criminal trial. Because we as a society recognize how terrible it would be to send an innocent person to jail, possibly for many years, our legal system has established a standard that is willing to allow many who are guilty of crimes to go free, because we find that result preferable to ruining the life of an innocent person through wrongful conviction. Therefore, where the evidence establishes, for example, an 85 percent likelihood that the defendant committed the crime, a finding of not guilty is warranted, as the remaining 15% constitutes “reasonable doubt.” Of course, wrongful convictions still happen in practice, but nevertheless, the theory behind a presumption of innocence and a standard of “beyond a reasonable doubt” in criminal proceedings remains a noble one.
Not being allowed to serve as a Supreme Court justice is a far, far cry from being convicted of a crime and sent to prison. Realize that there are only nine people in the whole country who are Supreme Court justices. Many who have never been appointed to the Supreme Court have nevertheless gone on to lead happy, productive lives; some have amassed significant wealth, others have even held positions of trust and respect in society.
In choosing a Supreme Court justice, the ideal candidate is not someone who hasn’t been proven guilty beyond a reasonable doubt of some horrible act. Rather, it’s someone whose impartiality is beyond questioning. This is because in a democracy, faith in our judicial institutions is paramount. Society will abide by judicial outcomes that they disagree with if they believe that the “wrong” result was made by impartial jurists who were genuinely trying to get it right. Abiding by unpopular judicial decisions is the key to democracy. It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”
A primary reason Republicans are so anxious to “plow through” (as Mitch McConnell, using the rapiest terminology imaginable, unfortunately phrased it) the nomination of Kavanaugh is because of how he might rule on abortion rights, an issue of great importance to the party’s base. Nearly all of the Republican Senators seem to believe that as long as Kavanaugh has not been found guilty beyond a reasonable doubt of attempted rape, then he is fully qualified to serve as the deciding vote in taking away a right that has been constitutionally guaranteed to women for the past 45 years.
However, the three Republican Senators who at the last second requested an FBI investigation into the charges against Kavanaugh may have realized that their colleagues were not applying the correct standard. Abortion rights involve a woman’s right to control her own body. Yesterday, the country heard very detailed and articulate testimony from a highly credible and courageous witness. What she described involved her being deprived of the right to control her own body, by a male who physically pinned her down, covered her mouth when she tried to scream for help, and tried to forcibly remove her clothing against her will. Her violator then added insult to injury by laughing at her in a way that still haunts her to this day. The credible witness stated that she was 100 percent certain that the male who violated her rights in this despicable way was Kavanaugh.
The evidence goes directly to the question of the candidate’s view of a woman’s right to control her own body. The question that Senators should be considering is how much public trust there will be in the impartiality of a decision that involves such right in light of the past actions of the justice casting the potential deciding vote.
Senators who will nevertheless vote for Kavanaugh will say that in spite of the testimony, they cannot be sure of his guilt. Or they may state that they are strongly convinced of his innocence. Regardless, many people might reasonably question Kavanaugh’s impartiality based on the evidence they have heard. (And remember, there have been two other women leveling similar accusations as well). Even those who believe him innocent should at this point realize that in light of public perception, the appearance of impropriety should disqualify Kavanaugh from consideration.
Should those Senators deciding the issue ignore the above, we will all likely live with the consequences for decades to come. Although it would not undo the damage, let us hope the public will respond quickly and decisively in voting the offenders out of office in November.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
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Others agree with Jeffrey:
Here’s what the NY Times Editorial board had to say:
The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.
Pool photo by Saul Loeb
What a study in contrasts: Where Christine Blasey Ford was calm and dignified, Brett Kavanaugh was volatile and belligerent; where she was eager to respond fully to every questioner, and kept worrying whether she was being “helpful” enough, he was openly contemptuous of several senators; most important, where she was credible and unshakable at every point in her testimony, he was at some points evasive, and some of his answers strained credulity.
Indeed, Dr. Blasey’s testimony before the Senate Judiciary Committee on Thursday was devastating.
With the eyes of the nation on her, Dr. Blasey recounted an appalling trauma. When she was 15 years old, she said, she was sexually assaulted by Judge Kavanaugh, then a 17-year-old student at a nearby high school and now President Trump’s nominee to the Supreme Court.
Her description of the attack, which she said occurred in a suburban Maryland home on a summer night in 1982, was gut-wrenchingly specific. She said Judge Kavanaugh and his friend, Mark Judge, both of whom she described as very drunk, locked her in a second-floor room of a private home. She said Kavanaugh jumped on top of her, groped her, tried to remove her clothes and put his hand over her mouth to keep her from screaming. She said she feared he might accidentally kill her.
“The uproarious laughter between the two and their having fun at my expense,” she said, was her strongest memory.
Judge Kavanaugh, when it was his turn, was not laughing. He was yelling. He spent more than half an hour raging against Senate Democrats and the “Left” for “totally and permanently” destroying his name, his career, his family, his life. He called his confirmation process a “national disgrace.”
“You may defeat me in the final vote, but you will never get me to quit,” Judge Kavanaugh said, sounding like someone who suddenly doubted his confirmation to the Supreme Court — an outcome that seemed preordained only a couple of weeks ago.
Pool photo by Erin Schaff
Judge Kavanaugh’s defiant fury might be understandable coming from someone who believes himself innocent of the grotesque charges he’s facing. Yet it was also evidence of an unsettling temperament in a man trying to persuade the nation of his judicial demeanor.
We share the sorrow of every sensible American who feels stricken at the partisan spectacle playing out in Washington. Judge Kavanaugh was doubtless — and lamentably — correct in predicting that after this confirmation fight, however it ends, the bitterness is only likely to grow. As he put it in his testimony, “What goes around, comes around,” in the partisan vortex that has been intensifying in Washington for decades now. His open contempt for the Democrats on the committee also raised further questions about his own fair-mindedness, and it served as a reminder of his decades as a Republican warrior who would take no prisoners.
Judge Kavanaugh’s biggest problem was not his demeanor but his credibility, which has been called in question on multiple issues for more than a decade, and has been an issue again throughout his Supreme Court confirmation process.
On Thursday, he gave misleading answers to questions about seemingly small matters — sharpening doubts about his honesty about far more significant ones. He gave coy answers when pressed about what was clearly a sexual innuendo in his high-school yearbook. He insisted over and over that others Dr. Blasey named as attending the gathering had “said it didn’t happen,” when in fact at least two of them have said only that they don’t recall it — and one of them told a reporter that she believes Dr. Blasey.
Judge Kavanaugh clumsily dodged a number of times when senators asked him about his drinking habits. When Senator Amy Klobuchar gently pressed him about whether he’d ever blacked out from drinking, he at first wouldn’t reply directly. “I don’t know, have you?” he replied — a condescending and dismissive response to the legitimate exercise of a senator’s duty of advise and consent. (Later, after a break in the hearing, he apologized.)
Judge Kavanaugh gave categorical denials a number of times, including, at other points, that he’d ever blacked out from too much drinking. Given numerous reports now of his heavy drinking in college, such a blanket denial is hard to believe.
In contrast, Dr. Blasey bolstered her credibility not only by describing in harrowing detail what she did remember, but by being honest about what she didn’t — like the exact date of the gathering, or the address of the house where it occurred. As she pointed out, the precise details of a trauma get burned into the brain and stay there long after less relevant details fade away.
She was also honest about her ambivalence in coming forward. “I am terrified,” she told the senators in her opening remarks. And then there’s the fact that she gains nothing by coming forward. She is in hiding now with her family in the face of death threats.
Perhaps the most maddening part of Thursday’s hearing was the cowardice of the committee’s 11 Republicans, all of them men, and none of them, apparently, capable of asking Dr. Blasey a single question. They farmed that task out to a sex-crimes prosecutor named Rachel Mitchell, who tried unsuccessfully in five-minute increments to poke holes in Dr. Blasey’s story.
Eventually, as Judge Kavanaugh testified, the Republican senators ventured out from behind their shield. Doubtless seeking to ape President’s Trump style and win his approval, they began competing with each other to make the most ferocious denunciation of their Democratic colleagues and the most heartfelt declaration of sympathy for Judge Kavanaugh, in a show of empathy far keener than they managed to muster for Dr. Blasey.
Pressed over and over by Democratic senators, Judge Kavanaugh never could come up with a clear answer for why he wouldn’t also want a fair, neutral F.B.I. investigation into the allegations against him — the kind of investigation the agency routinely performs, and that Dr. Blasey has called for. At one point, though, he acknowledged that it was common sense to put some questions to other potential witnesses besides him.
When Senator Patrick Leahy asked whether the judge was the inspiration for a hard-drinking character named Bart O’Kavanaugh in a memoir about teenage alcoholism by Mr. Judge, Judge Kavanaugh replied, “You’d have to ask him.”
Asking Mr. Judge would be a great idea. Unfortunately he’s hiding out in a Delaware beach town and Senate Republicans are refusing to subpoena him.
Why? Mr. Judge is the key witness in Dr. Blasey’s allegation. He has said he has no recollection of the party or of any assault. But he hasn’t faced live questioning to test his own memory and credibility. And Dr. Blasey is far from alone in describing Judge Kavanaugh and Mr. Judge as heavy drinkers; several of Judge Kavanaugh’s college classmates have said the same.
None of these people have been called to testify before the Senate. President Trump has refused to call on the F.B.I. to look into the multiple allegations that have been leveled against the judge in the past two weeks. Instead the Republican majority on the committee has scheduled a vote for Friday morning.
There is no reason the committee needs to hold this vote before the F.B.I. can do a proper investigation, and Mr. Judge and possibly other witnesses can be called to testify under oath. The Senate, and the American people, need to know the truth, or as close an approximation as possible, before deciding whether Judge Kavanaugh should get a lifetime seat on the nation’s highest court. If the committee will not make a more serious effort, the only choice for senators seeking to protect the credibility of the Supreme Court will be to vote no.
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Emily Bazelon of the NY Times Sunday Magazine wasn’t convinced by BKavs either:
Twice as a reporter, I’ve interviewed women who have accused men of sexual assault and the men they accused. In both cases, the women looked me in the eye and told me about how they’d been raped, and then the men looked me in the eye and told me they’d never raped anyone. All four people spoke with force and emotion. In the moment, I wanted to believe each one. It’s uncomfortable to imagine that someone who seems wholly sincere is not. It’s confusing — it seems unfeeling — to turn away from someone who makes a vehement claim of truth.
If you watched Thursday’s hearing, in particular Christine Blasey Ford’s opening statement and Brett Kavanaugh’s, maybe you know what I mean. So then what? As a reporter, I looked for corroborating evidence as a means of assessing each person’s veracity. What else could I find out, and how did their accounts stack up against that? This is how investigators do their work. They find out as much as they can about the surrounding circumstances. Then it’s up to judges to weigh the facts and decide which account is most credible.
Judge Kavanaugh didn’t sound as if he was thinking like a judge. His partisan attack on Democrats wasn’t judicial, in any sense of the word. His approach to evidence wasn’t either.
The difficulty for holding Judge Kavanaugh accountable for what Dr. Blasey says was her assault is the lack of a certain kind of corroboration for her account. The other people she has named who were at the small gathering where she says the assault took place don’t remember such a gathering. Two of them are Judge Kavanaugh’s high school friends. One of them is Dr. Blasey’s friend.
But there’s no reason any of them would have remembered such a gathering. She says it was a spur-of-the-moment get-together, after swimming and before a party to come. And it took place 36 years ago. The gathering she describes is also consistent with one of Judge Kavanaugh’s calendar entries about drinking with his friends.
We also have more than Dr. Blasey’s word. Years ago, she talked about this assault, and named Judge Kavanaugh, with her husband and her therapist, and at a later time, she told a few close friends. They back her up on this. One memorable detail from her testimony has the ring of truth, in its specificity: Her assault came up in couples therapy with her husband because the traumatic memory triggered anxiety and claustrophobia, and that made her insist on adding a second front door to her house, to his understandable confusion. This is not the kind of fact a person makes up.
Dr. Blasey was firm about closing a door that would allow us to reconcile her accusation and Judge Kavanaugh’s denial. She is not mixed up about the identity of her assailant, she said. She is “100 percent certain” it was Judge Kavanaugh. The comfortable path for the judge’s supporters — believe she was assaulted, disbelieve he committed the assault — is gone. Her certainty was a pillar of the testimony she put the full weight of herself behind — her professional identity, her character, the careful consideration and precision about facts that was evident as she spoke.
Judge Kavanaugh refused to open another door that would allow the public, and the Senate, to reconcile these accounts of accusation and denial. He ruled out the possibility that he could not remember assaulting Dr. Blasey because he blacked out or was otherwise incapacitated by drinking. He was just as adamant about categorically denying the other sexual misconduct he has been accused of by two other women.
Judge Kavanaugh also didn’t much back off his denials of being a hard drinker or an aggressive drunk. This is his big weakness, stacked against other facts that have been gathered. Several classmates from his college days at Yale paint an entirely different picture of him as a drinker than the innocent one he offered of being a person who “likes beer.” So do his own yearbook entries and speeches. If you’re a judge who believes in strictly reading a text for its plain meaning, as Judge Kavanaugh says he is, his dismissals and wispy explanations aren’t persuasive.
If you’re thinking like a judge aiming to discover the truth, it’s also hard (impossible?) to justify the lack of a neutral investigation and the absence of other witnesses, beginning with Mark Judge, the friend of Judge Kavanaugh’s, whom Dr. Blasey says saw and participated in the assault, but not ending with him.
The task of a judge or a Supreme Court justice is to seek the truth. The most important qualities for the job are probity and veracity. Nobody was on trial at the Senate Judiciary Committee. But only one person — Judge Kavanaugh — was asking to be elevated to the highest court in the land.
Emily Bazelon is a staff writer at the magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also a best-selling author and a co-host of the Slate Political Gabfest, a popular podcast.
Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Thursday.
Jim Bourg/AFP/Getty Images
On Thursday, after listening to testimony from Supreme Court nominee Brett Kavanaugh and his accuser, Christine Blasey Ford, several Republican senators said they would vote to confirm the nominee because it’s impossible to determine which witness—Ford or Kavanaugh—is telling the truth. Actually, it’s easy. We don’t know for certain whether Kavanaugh sexually assaulted Ford. But we do know that Kavanaugh lied repeatedly in his testimony to the Senate Judiciary Committee. Here are some of his lies.
1. “It’s been investigated.” The White House has ignored multiple requests from Democratic senators to authorize FBI interviews with the alleged witnesses in the case. In particular, there has been no FBI or Judiciary Committee interview with Mark Judge, Kavanaugh’s accused accomplice in the alleged assault. In fact, Judge has fled to a hideout in Delaware to avoid being called to testify.
During the hearing, several Democratic senators pleaded with Kavanaugh to call for FBI interviews so that the truth could be resolved. Kavanaugh refused. When Sen. Chris Coons pointed out that the FBI had needed only a few days to complete interviews in the Clarence Thomas–Anita Hill case, Kavanaugh said even that was too much, because the Judiciary Committee had already examined his case. “It’s been investigated,” he told Coons.
No honest judge would say that. None of the alleged witnesses, other than Ford and Kavanaugh, has been interviewed. Instead, the alleged witnesses have issued short statementsof nonrecollection and have asked not to testify. The committee’s Republican majority, eager to brush the case aside, has accepted these statements and has refused to ask further questions. In his testimony, Kavanaugh falsely claimed that FBI interviews would add nothing. Agents would “just go and do what you’re doing,” he told the senators.
Kavanaugh claimed that a vague statement of nonrecollection from Judge’s lawyer was sufficient “testimony.” He dismissed calls for Judge to appear before the committee, arguing that his own testimony was adequate. But Kavanaugh also mocked the committee’s Democrats, who lack the power of subpoena, by telling them to go talk to Judge. When Sen. Patrick Leahy asked whether Bart O’Kavanaugh, a drunken character in Judge’s book, was meant to represent Brett Kavanaugh, the nominee passed the buck to his testimony-evading friend: “You’d have to ask him.”
2. “All four witnesses say it didn’t happen.” Each time senators pleaded for an FBI review or a more thorough investigation by the committee, Kavanaugh replied that it wasn’t necessary, since all the people Ford claimed had been at the gathering where the alleged assault occurred had rejected her story. Eight times, Kavanaugh claimed that the witnesses “said it didn’t happen.” Three times, he said the witnesses “refuted” Ford’s story. Four times, Kavanaugh claimed that “Dr. Ford’s longtime friend,” Leland Keyser, had affirmed that the gathering never occurred.
That’s a lie. Keyser has stated that she doesn’t recall the gathering—she was never told about the attack, and she was supposedly downstairs while it allegedly occurred upstairs—but that she believes Ford’s story. That isn’t corroboration, but it isn’t refutation or denial, either. During the hearing, Sen. Cory Booker pointed this out to Kavanaugh, reminding him that in an interview with the Washington Post, Keyser “said she believes Dr. Ford.” Kavanaugh ignored Booker’s correction. Ninety seconds later, the nominee defiantly repeated: “The witnesses who were there say it didn’t happen.”
3. “I know exactly what happened that night.”Kavanaugh made several false or widely contradicted statements about his use of alcohol. This is significant because Judge has admitted to drunken blackouts, which raises the possibility that Judge and Kavanaugh don’t remember what they did to Ford. During the hearing, Sen. Richard Blumenthal asked about Kavanaugh’s participation in a night of drunken revelry at Yale Law School. Kavanaugh assured Blumenthal, “I know exactly what happened the whole night.” Later, Booker asked Kavanaugh whether he had “never had gaps in memories, never had any losses whatsoever, never had foggy recollection about what happened” while drinking. Kavanaugh affirmed that he had never experienced such symptoms: “That’s what I said.”
These statements contradict reports from several people who knew Kavanaugh. Liz Swisher, a friend from Yale, says she saw Kavanaugh drink a lot, stumble, and slur his words. “It’s not credible for him to say that he has had no memory lapses in the nights that he drank to excess,” she told the Washington Post. And in a speech four years ago, Kavanaugh described himself and a former classmate “piecing things together” to figure out that they’d “had more than a few beers” before an alcohol-soaked banquet at Yale Law School.
4. “I’m in Colorado.” As evidence that the charges against him were ludicrous, Kavanaugh told the committee that he had been falsely accused of committing an assault more than 1,500 miles away. He claimed that according to his accusers, “I’m in Colorado, you know, I’m sighted all over the place.” But a transcript of Kavanaugh’s Sept. 25 interview with Judiciary Committee staffers shows no claim of an offense in Colorado. The transcript says that according to a woman from Colorado, “at least four witnesses” saw Kavanaugh shove a woman “up against the wall very aggressively and sexually” in 1998. But Kavanaugh was specifically told during the interview that the scene of the alleged incident was in D.C., where he was living at the time.
Kavanaugh also told other whoppers. He claimed that his beer consumption in high school was legal because the drinking age in Maryland was 18. In reality, by the time he was 18, the drinking age was 21. He claimed that his high school yearbook reference to the “Beach Week Ralph Club” referred in part to his difficulty in holding down “spicy food.” He claimed that the entry’s jokes about two sporting events he and his high school buddies had watched—“Who won that game, anyway?”—had nothing to do with booze. And he defended his refusal to take a polygraph test on the grounds that such tests aren’t admissible in federal courts—neglecting to mention that he had endorsed their use in hiring and law enforcement.
Maybe Kavanaugh is an honest man in other contexts. Maybe he’s a good husband, a loving dad, and an inspiring coach. And maybe there’s no way to be certain that he assaulted Ford. But one thing is certain: He lied repeatedly to the Judiciary Committee on Thursday. Some of his lies, about the testimony of witnesses and the integrity of investigations, go to the heart of our system of justice. Any senator who votes to put this man on the Supreme Court is saying that such lies don’t matter.
Photo illustration by Slate. Photos by Drew Angerer/Getty Images and Andrew Harnik-Pool/Getty Images.
At this moment of feverishly intense partisanship, it takes a great deal of courage to tiptoe away from your own tribe. Sen. Jeff Flake has not yet announced that he is willing to part for good; in the end, he may yet betray his professed principles and cast his vote to confirm Brett Kavanaugh. And yet, we should not underestimate how much strength it took for him to demand an investigation into Christine Blasey Ford’s serious allegations of sexual assault and delay the judge’s confirmation by at least a week. For now, he has proved to be one of the few people in the Senate—and perhaps one of the few in the whole country—who have insisted on taking Ford’s allegations seriously even though he actually shares most of Kavanaugh’s judicial views.
For the sake of our country, all of us should now hope that the FBI manages to uncover conclusive evidence that either supports or dispels Ford’s accusations. Unfortunately, that seems unlikely. So the big risk we now face is that the same hell we have lived through for the past 48 hours will be repeated in even more farcical form next week. And that is why it’s very important to use this time to reflect seriously on how judicious people—and perhaps especially senators like Flake who profess to be conscientious conservatives—should vote if they have not made up their mind about the allegations.
It is painfully obvious that most Republican senators will vote to confirm Kavanaugh if the allegations against him are anything short of iron-clad; indeed, one shocking poll suggests that a majority of Republicans voters, and nearly half of evangelicals, would support his confirmation even if they did believe that he is guilty. It is also obvious that most Democrats will vote against his confirmation even in the unlikely case that the FBI should somehow manage to disprove Ford’s allegations; indeed, Kavanaugh’s extreme views on executive power provide a strong reason for any defender of liberal democracy to oppose his nomination. And yet, I think that one very important consideration has largely been overlooked.
Let us assume, for the sake of argument, that Kavanaugh is an innocent man. If that’s the case, the raw anger he displayed during Thursday’s confirmation hearing is certainly understandable. While we might wish for a public figure to keep his poise even when his reputation is being impugned, it is perfectly human to lose your countenance under such circumstances.
But even under that charitable interpretation, Kavanaugh’s performance in front of the Senate Judiciary Committee makes him eminently unfit to sit on the highest court of the land.
Kavanaugh’s confirmation would not just be a disaster in itself; it would also be a strong reason to become even more pessimistic about the future of Americanpolitics.
A justice on the Supreme Court has to rule on a whole host of issues that are of huge partisan significance: If he is confirmed, he will have to settle substantive questions of public policy—from abortion rights to the health care mandate—on which Democrats and Republicans have hugely differing preferences. Just as importantly, he will also help to set the parameters that are supposed to ensure that Democrats and Republicans can appeal for the votes of their fellow citizens on fair terms.
But how can somebody who has accused Democrats of a “calculated and orchestrated political hit” be seen as impartial when he rules on a gerrymandering case that could deliver a huge advantage to Republicans? How can somebody who describes serious allegations of sexual assault as “revenge on behalf of the Clintons” be expected to give both sides a fair hearing if the outcome of a presidential election should once again be litigated in front of the Supreme Court? And how can somebody who denounces the “frenzy on the left” to derail his nomination be trusted to ensure that the left’s most vocal enemy, Donald Trump, does not overstep the bounds of his constitutional authority?
Because of Mitch McConnell’s refusal to hold hearings on the confirmation of Merrick Garland during the last year of Barack Obama’s presidency, the current composition of the Supreme Court is already tainted. Now, the confirmation of as nakedly partisan a jurist as Kavanaugh would go a long way toward destroying whatever remains of the Supreme Court’s legitimacy. And this would not only tank the trust Americans have in the last branch of government that has, according to polls, consistently been more popular than secondhand car salesmen; it also significantly raises the likelihood that Democrats will engage in yet another round of tit for tat.
Precisely because partisans need to be able to trust that courts can enforce the rules for fair political competition between them and their adversaries, attempts by a political party to change the ideological makeup of the judiciary are extremely dangerous to the survival of democratic institutions. That’s why (direct or indirect) court-packing schemes have been key elements of the authoritarian takeovers in Russia, Turkey, and Venezuela. And it’s also why the current governments in Poland and Hungary are playing constitutional hardball to ensure that judges they appoint command a majority on the most important courts in their respective countries.
There can therefore be little doubt that any attempt by Democrats to pack the Supreme Court, for example, by expanding its size, would be another step in a tit-for-tat spiral at whose end autocracy awaits. And yet, recent events will make it very hard for those voices within the Democratic Party that recognize this danger to prevail. If one side is so willing to abuse precedent and decency to, as Kavanaugh might put it, screw the libs, it becomes very difficult for the other side not to reciprocate in kind.
This is why Kavanaugh’s confirmation would not just be a disaster in itself; it would also be a strong reason to become even more pessimistic about the future of American politics. The GOP and Trump are now more fully aligned than ever. Our country’s partisan divide is deeper than it has been in living memory. The mutual hatred and incomprehension is more acute than it has been in decades. If Kavanaugh is confirmed, it’s very, very difficult to envisage what path could possibly lead us out of this nightmare.
Jeff Flake has acted with much more courage and decency than most liberals care to admit. But the responsibility that now rests on his—and Sen. Lisa Murkowski’s and Sen. Susan Collins’—shoulders is even greater than he might realize.
Photo illustration by Slate. Photos by Erin Schaff-Pool/Getty Images and Gabriella Demczuk-Pool/Getty Images.
When Thursday’s Senate Judiciary Committee hearing on the nomination of Judge Brett Kavanaugh was over, it wasn’t quite clear what had hit those of us who’d been sitting in the room. The hearing room in Dirksen is tiny, and while the slammed binder and the escalating shouting of the nominee might have looked pretty dramatic on TV, inside the chamber, the effect was that of an out-of-control house party. Too loud, too scary, too close, too real. Like being locked inside something terrible with the music cranked up.
Anita Hill once told me that, in 1991, Clarence Thomas had race and she had only gender. But now, in 2018, Brett Kavanaugh had rage and Christine Blasey Ford had only gender. With the Senate Judiciary Committee moving on Friday to advance Kavanaugh’s nomination to the full Senate without any further inquiry around Blasey Ford’s damning and plainly credible testimony that Kavanaugh had gleefully and drunkenly sexually assaulted her at a 1982 house party as his buddy Mark Judge watched, it appears as though his rage alone will have been enough to earn him life tenure on the highest court in the land.
The dynamic of Thursday’s hearing was consistent: He had fury, and contempt, and seething threats that the republic would pay if he were thwarted. She had to functionally lie back and try not to infuriate anyone, as Republicans cowered behind the female prosecutor, Rachel Mitchell, they had brought on to interrogate her. That was until it was Kavanaugh’s turn to speak, when they quickly jettisoned that paper-thin pretense of investigative “independence” and joined Kavanaugh to form a chorus of angry shouting men. They towered silently over Mitchell for the first half of the hearing, then summarily ignored her when she wasn’t offering questions fast or furious enough to protect their nominee.
At least Anita Hill was insulted, demeaned, and discredited to her face. Ford was patronized, thanked, and told that she was very, very credible. Over and over she was told she’d been given a “safe space” to tell her story; as if a safe space substitutes for reasoned process and investigation. She was given a safe space and then dismissed as though she were some character in a very sad French movie that had been very affecting indeed but had nothing to do with the great man and his destiny. After presenting an undeniable narrative—and one the nobody ever really attempted to specifically refute—she was told that her credibility didn’t count for anything because a man was bellowing and injured, that whatever had happened to her was not as important as his pain. And Senate Republicans—having tucked Mitchell back into her naughty chair—were delighted to bellow and yelp of horrid injuries they too had sustained alongside their guy.
Of course, the purported wrong was the process. Again, the villain of the piece was Judiciary Committee ranking member Sen. Dianne Feinstein, who had kept Ford’s July letter outlining one of Kavanaugh’s alleged crimes in confidence at her request until eventually forwarding it to the FBI for inquiry earlier this month. Don’t be fooled, though: Feinstein would have been screamed at just as furiously had she come forward weeks or months earlier with Ford’s report, and another pretext for dismissing Ford and her witnesses would have been concocted.
At least Anita Hill was insulted, demeaned, and discredited to her face.
As GOP rage gathered steam, we were told that this needed to be treated as a criminal proceeding—innocent until proven guilty—and the Republicans contended that there was no evidence of criminal conduct. But, of course there was evidence: compelling firsthand testimony and numerous supporting accounts. And of course, they refused to subpoena the key witness to the event, opting instead for the “we take his word for it” route of investigation by registered letter. The “hearing,” as expected, had been staged as a puppet show of “credibility.” And absent witnesses, or evidence, or any mechanism for fact finding, both sides could be called credible and Brett Kavanaugh could still be confirmed. On Friday, Sen. Jeff Flake—perhaps the Senate’s greatest profile in cowardice masquerading as courage—said that he would cast the key vote to advance Kavanaugh’s nomination out of the committee. Despite the lack of anything resembling a meaningful investigation, which Ford and the other women who have accused Kavanaugh of sexual violence have repeatedly requested, and the judge has repeatedly declined to request, it now appears Kavanaugh will be confirmed. His fate rests in the hands of Sens. Susan Collins, Lisa Murkowski, and Joe Manchin.* Given her mind-bending bravery and likely folk-hero status, one hopes that Ford will not now come to believe that her decision was made in vain. But it was impossible on Friday morning not to think of her own description of her reluctance to come forward out of fear that she would “just be jumping in front of a train that was headed to where it was headed anyway.”
Ultimately, he had rage and she had gender, and a “job interview” was recast as though it would result in a lifelong criminal conviction with a death sentence on the line for the man in the dock. Calling no witnesses and accepting no supporting testimony were a perfect way to ensure that he would be innocent of all charges. She had gender. They were sorry for her loss.
Brett Kavanaugh is never going to understand that women don’t sort themselves into those upon which he bestows his munificence (clerks, girls in plaid skirts) and those he can shout at, and bully, like Feinstein and Sen. Amy Klobuchar. Feminism doesn’t mean you get to pick which women you patronize and which you can insult. Brett Kavanaugh is also unlikely to understand that justice doesn’t mean demanding your lifetime appointment because it’s your time.
Put aside whether any sane litigant can have any confidence in the justice system after the man who will be the decisive vote on the court made it manifestly clear that he believes half the country, and the media, and liberal dark money were all in on a conspiracy to take him out. Because of the Clintons. This wasn’t ultimately a hearing about whether Kavanaugh deserved to be elevated to the high court. It was a blind partisan tantrum in which he dragged the judicial branch down to a place of ugliness and rancor from which it will not soon recover.
Others have detailed the incomplete answers, the fact that he wasn’t questioned correctly about his calendar, the ways in which his claims that he had been exonerated by other witnesses were absolutely distorted, and the laughable claims about his well-documented and widely known drinking and his “sensitive stomach.” While Ford offered exacting answers, Kavanaugh repeated half-truths and conspiracy theories and sneered and slammed through a fog of rage. It was a perfect contrast not just to Ford’s conduct, but to that of Merrick Garland, who never said a word when the seat to which he was entitled was yanked away.
There were two distinct moods in the Kavanaugh hearing: Ford evoked undistilled sadness and vulnerability; Kavanaugh evoked raw fear that if he were ever crossed, he would lose control. Do. Not. Make. Him. Angry. is the new judicial temperament. It is the perfect metaphorical springboard to the highest court in the land, where he will say he’s calling balls and strikes while he froths with contempt at those he believes coordinated against him: Be very afraid. This is what we will call “justice” now.
Correction, Sept. 28, 2018: Due to an editing error, this post originally misstated that Collins, Murkowski, and Manchin were said to be voting in a bloc with Flake.
At the time, I surmised (quite correctly in retrospect) that BKavs’s willingness to distort the law was motivated to some extent by his desire to burnish his reactionary credentials for the Supreme Court appointment for which he was groomed by the GOP right wing and to which he and his supporters have always believed he is entitled. Nothing comes through from BKavs and the GOP Senators supporting him more than an arrogant sense that he is absolutely entitled to this appointment.
So, how do I come down on the BKavs mess? Well, I suspect that the results of the FBI investigation will be inconclusive. That being the case, the GOP will confirm him and he will become Justice Kavanaugh.
That being said, I thought that his emotional partisan attack on Democratic Senators, his overt rudeness to Sen. Amy Klobuchar, and his unsupported “conspiracy theory” re the Clintons showed that he is exactly what his critics have been saying all along: an injudicious and disingenuous partisan.
No matter what really happened with Ford, he is “damaged goods” who can’t credibly serve on the Supremes. A decent person would withdraw at this point for the good of the country.
Certainly, Trump can find a reactionary GOP female judge with no personal baggage to carry the flag. He was actually pretty stupid to nominate BKavs in the first place rather than a female vetted by the Heritage Foundation whom the Dems couldn’t have touched.
I assume that Senator L. Graham is auditioning for Gonzo’s job after the midterms. He seems to forgotten what he and his GOP buddies did to Judge Merrick Garland — a very decent person and good jurist who never even got a chance to be heard at all. The GOP just decided that “advice and consent” meant “stonewall if you don’t like the President.” And as a moderate and polite “center left” jurist, Judge Garland certainly would have been a more appropriate pick for the Supremes than BKavs! But, power is power, and the GOP has it right now — the Dems don’t.
Nothing is likely to stop Judge’s Kavanaugh’s elevation at this point. But, as Jeffrey suggests, getting to the ballot box could make BKavs the last such appointment for some time.
Leaving school one autumn day in 2006, I stood at the top of the concrete stairs at the back exit, with the senior parking lot spread out before me, cars gleaming in the still afternoon sun. Several of them bore a message scrawled in chalk-paint: FAITH. They looked to me like gravestones, brief and cryptic in neat rows.
The next day, people whispered about the word in the halls. It was an acronym, I learned, meaning “f— Amber in the head,” or “f— Amber in three holes,” which I awkwardly explained to my parents when they asked me one evening why so many cars around town were thus marked. The idea struck me as brutally, unspeakably ugly, and it was the ugliness that came to mind each time I saw some rear windshield dripping the word in streaky chalk at the local Jack in the Box or Sonic Drive-In. Eventually I heard the girl had recanted her allegations and then had gone away; the writing on the cars, too, went away, and the question of what had happened that night.
. . . .
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Please note that the guys spouting the “why didn’t she report it” nonsense are 1) a known liar, misogynist, bully, philanderer, and coward who happens to be our unqualified President, and 2) a bunch of old, white, tired, amoral GOP legislators who, although nominally adults, are too cowardly and morally corrupt to stand up to the aforesaid unqualified President who is destroying America, and who prefer instead to pick on the vulnerable and courageous.
Ballot boxes exist to, over time, remove all of these intentionally tone-deaf folks from our national Government. Use it, or we’ll all lose it!
If we learned anything at all from John McCain’s funeral over the weekend it’s this: The more buffeted we are by the hourly insanity that emanates from the Trump White House, the more likely we are to get bleary-eyed drunk on episodes of public sobriety, dignity, and seriousness. As Michelle Goldberg aptly noted, “For many who detest Donald Trump, the spectacle of the country’s former leaders championing embattled American principles—principles once shared by even the bitterest political enemies—was fiercely moving.” Moving, yes, but at what cost?
The more corruption, incompetence, and recklessness we witness spewing out of the White House, the more inclined we are to cling tightly to the blanket of institutional integrity, normalcy, and civility. It’s not just that it’s nuts out there. It’s almost as if the nuttier it gets, the more we need to pretend that wherever it is we’re sitting at the moment is a safe place in which the norms of dignity, respect, and goodwill are still in force. And if John McCain’s funeral was a symbol of that, so too is all the talk of “decorum” and “civility” in the U.S. Senate.
And so, Republicans spent the first day of Brett Kavanaugh’s confirmation hearings telling us that nothing that’s happening in here has anything to do with the fact that Donald Trump is the president. None of the concern around this Supreme Court seat has anything to do with the fact that the president himself is under investigation for corruption and campaign finance violations, or that his personal lawyer swore under oath that Trump instructed him to commit crimes, or that a foreign power is currently interfering with our election systems. All of that is about a different thing. This hearing is about something stable and immutable and good. And anyone who implies that anything is abnormal is a hysteric or an opportunist or an attention-seeker.
Jeff Flake and Ben Sasse can go so far as to express mild concern about Trump’s assaults on the rule of law and his own attorney general because none of that has anything to do with Brett Kavanaugh. And Lindsey Graham can splutter about Hillary Clinton because that also has nothing to do with Kavanaugh. And Chuck Grassley can snarl that this is akin to attacking the president because it has nothing whatsoever to do with the president.
We take so much visceral succor in public performances of bipartisanship and decency that we can blinker ourselves to genuineinjustice.
If you followed Tuesday’s events on a split screen, you’d know that in addition to issuing threats to his own attorney general and making claims that Republicans running for office deserve different legal treatment than Democrats, Trump was also the subject of jaw-dropping leaks in Bob Woodward’s new book, leaks suggesting his own aides must take documents off his desk in order to keep the United States safe from his rampant incompetence. But inside the cocoon of the Senate Judiciary Committee, none of that matters at all. Moreover, for legal luminaries like Ted Cruz, this hearing is an extraordinary opportunity to celebrate the greatness of Trump’s nominees to the Supreme Court and the lower federal courts. This is still a safe space, of civility and decorum, and the Democrats who squawk about documents being withheld have descended into “mob rule” and incivility.
The White House (the White House!) was tweeting indignantly about interruptions. By the end of the day Trump himself was tweeting that all Senate Democrats were “mean, angry, and despicable.” But even with the president forcing himself into the Senate’s aperture yet again, by no means should anyone who works there take any steps to rein him in. That would be weird. And while most of the senators had the good graces on Tuesday to pretend that Trump was not really the president, some evinced a kind of nagging low-level worry that someone somewhere should really address the problem of a chief executive who doesn’t believe in law or courts or justice. But who? Who could possibly do it?Flake described “concern” about Donald Trump’s attacks on the rule of law. And Sasse deplored the do-nothing Congress. And Chuck Grassley (yes, this Chuck Grassley) bemoaned the fact that Senate Democrats were taking advantage of his “decency and integrity.” But everyone on the Republican side of the aisle felt confident that it was Democrats who were breaking the Senate on Tuesday.
On the Democratic side, Dick Durbin decried the fact that a Republican lawyer was vetting all of the Kavanaugh documents, and Amy Klobuchar expressed the sentiment that nothing about this hearing was regular. “This is not normal,” she said. “You have a nominee with excellent credentials, with his family behind him. You have the cameras there. You have the senators questioning. But this isn’t normal.” Mazie Hirono made the same point: “These are not normal times.”
Indeed, for a brief time on Tuesday morning as the Democrats demanded postponement and adjournment, it appeared they might walk out of the chamber altogether. But ultimately, the need for regularity and normalcy overmastered even them, and so while their opening statements grew longer and more irate, the decision to stick around and litigate this thing on the merits proved too tempting. It was left to the protesters, one after another in unprecedented numbers and with unprecedented ferocity, to voice their disgust and dismay. The more furious the calls for “decorum” and “rules” and “politeness,” the more enraged the protesters became. The opposite of civility isn’t always civil disagreement.
In the furious national quest for decency and normalcy, the day ended as a parody of itself—with Kavanaugh feted by a “liberal feminist” lawyer for his legal greatness that transcends all politics and ideology, and the judge himself offering his girls’ basketball coaching as an argument about human decency in a cruel and frightening world.
If the McCain funeral proved anything, it’s that we take so much visceral succor in public performances of bipartisanship and decency that we can blinker ourselves to genuine injustice, injustice we don’t see because it happens outside our scope of vision. We need balanced, functioning institutions so desperately that we gorge ourselves on performances of friendship and family and civility.
We must be extra cautious, now more than ever, about institutions that substitute talk of norms and civility for actual justice. Senate Republicans are rushing the Kavanaugh hearing, and blocking access to his record, precisely because they would rather prey on the national need for normalcy and dignity than do anything to reaffirm the rule of law as it applies to this presidency. Yet again the crumbling of democratic safeguards is someone else’s problem. Sometimes calls for institutional decency and civility mask institutional cowardice and opportunism. The first day of Kavanaugh’s confirmation hearings was one of those times.
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Basically, the Democrats need to win elections, not count on the civility, honesty, commitment to “norms,” or for that matter commitment to the rule of law of the GOP. Failure to win elections is why we have Justice Neil Gorsuch rather than Justice Merrick Garland and why we soon will have Justice BKavs.
Those who believe in the Constitution and the continuation of our republic need to get to the polls this fall, get others of like mind out too, and begin the difficult but essential process of taking back our country from Trump and his GOP.
Retired U.S. District Judge Nancy Gertner writes in HuffPost:
Justice Anthony Kennedy’s final writing as a member of the U.S. Supreme Court, his concurrence in the travel ban case, was a cri de coeur. It simply, even pathetically, lamented the court’s limited role in controlling a lawless executive.
Throwing up his hands, he wrote that the acts of government officials often are not subject to judicial scrutiny, while adding that this “does not mean those officials are free to disregard the Constitution and the rights it protects. The oath is not restricted to the actions that the Judiciary can correct.”
Wrong message, Mr. Justice.
Even though the travel ban the court upheld is not related to the asylum crisis — the travel prohibition is about immigrants coming here for all sorts of reasons, not asylum seekers fleeing violence in their country — to President Donald Trump, it does not matter. The high court’s decision is perceived as a vindication of all of his immigration policies, no matter how lawless, cruel and dysfunctional. And with Kennedy’s concurrence, it risks signaling that the judiciary will abdicate its own obligations to uphold our country’s laws and ideals.
Take “zero tolerance.” When asylum-seekers so much as step across the border, they are violating the law, according to this administration, even if they immediately present claims to an immigration official. The rule of law, the president insists, requires the prosecution of all crimes, no matter how trivial. This from the same man who pardoned former Arizona Sheriff Joe Arpaio after he was found guilty of flouting a court order to stop racial profiling.
Then there is the even more absurd claim that family separation deters asylum-seekers from coming to the U.S. Asylum-seekers will not be deterred by Trump’s cruelty; they have already decided to risk a dangerous trek from Central America to the U.S. because they believe their families will be killed if they stay. In fact, the number of asylum requests has increased notwithstanding Trump’s policies; its driving force is violence in asylum-seekers’ home countries, not U.S. immigration policy.
Nor are these asylum-seekers miscreants intent on defrauding the U.S. or committing crimes. This year, fewer than 1 percent of those apprehended have presented claims found to be false. Studies show that in general, undocumented immigrants — of whom asylum-seekers are a part — commit fewer crimes than those born in this country.
Worse, Trump now wants to deport asylum-seekers without any review. We don’t need more judges, he says, just more border cops. Where is the rule of law here?
HANDOUT . / REUTERS
A view of inside a U.S. Customs and Border Protection detention facility in Rio Grande City, Texas, last month.
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The Constitution’s due process requirement applies to anyone physically in the U.S., whether they have arrived legally or not. Likewise, international law requires us to review whether asylum-seekers’ claims of violence are credible, and if they qualify, let them in. And obviously, this government should not threaten to take children from their parents unless the families agree to voluntary deportation. That’s not just the absence of due process; it’s the presence of extortion.
If Kennedy signaled his belief that the court has very limited power to control an errant president, his putative replacement, federal Circuit Coury Judge Brett Kavanaugh, may well be worse. He does not just lament court’s limited power to control a president, he embraces it.
Kavanaugh has a particularly robust view of presidential power in certain areas — significantly, national security or immigration. In Klayman v. Obama, the D.C. Circuit ruled against a challenge to the National Security Agency’s metadata collection program on technical grounds, in a per curiam decision ― meaning an opinion of the entire court and not any individual judge. Kavanaugh, however, felt the need to file a concurring opinion.
Rather than simply signing on the decision, he went out of his way to make the breadth of the president’s national security power clear: Even if the collection program were the functional equivalent of a search, the government did not need to seek a warrant from a judge because the president said the program was necessary to combat terrorism and that need outweighed any impact on privacy.
Echoing Kennedy’s lament in the travel ban case, Kavanaugh added that while the chief executive and Congress may want to limit the program, until they do the judiciary was literally without the power to control it. Not only was the door to a constitutional challenge was firmly shut; he wanted to make certain that everyone knew it.
But there are judges who are not simply wringing their hands about the limits of judicial review over immigration issues, like Kennedy did, or who are bent on deferring to the president whenever he intones a national security rationale, as Kavanaugh might well do. They are working each day to prevent this president from running roughshod over the Constitution ― not just in the executive orders that he promulgates but in the way his orders and policies are implemented on the ground, in the day-to-day encounters on our borders.
A federal judge in California, a George W. Bush appointee, issued a nationwide injunction temporarily stopping the Trump administration from separating children from their parents at the border. Another in D.C. blocked the systematic detention of migrants who show credible evidence that they were fleeing persecution in their home countries, halting a practice that is an obvious and unlawful attempt to deter them and others from seeking refuge here.
There will surely be others, because these judges ― like the president ― also swore an oath to uphold the Constitution. But for them, unlike the president, it is not an empty promise.
Nancy Gertner served as a Massachusetts United States District Court judge from 1994 to 2011, when she retired to teach at Harvard Law School. Her first memoir, In Defense of Women, was published in 2011, and a judicial memoir, Incomplete Sentences, will be published in 2019.
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Almost everything that Trump and Sessions have said about asylum seekers and border policy is absurd — clearly refuted by the facts and by past failures.
Lies, racism, xenophobia, absurd positions, claims that are demonstrably false, just plain stupidity, fraud, waste, abuse, it’s all in a day’s work for Trump, Sessions, Miller, Nielsen, and the other White Nationalists firmly committed to the downfall of American democracy.
And, as Judge Gertner points out, they are aided and abetted by a spineless “go along to get along” Supreme Court majority unwilling to uphold their oaths of office and defend the Constitution and our country against the outrageously unconstitutional, cruel, unjustified, and immoral actions of the Trump Administration.
Can the lower Article IIIs stem the tide long enough for us to get “regime change” at the ballot box and save America? The answer is a resounding “maybe.”
Better get out the vote in November to throw the White Nationalists/Putinists and their fellow travelers out of office. Otherwise, it might be too late for the world’s most successful democracy.
One fun example of the conservative judge’s take on workers’ rights is his dissent—the only one—in a case involving the SeaWorld trainer who was eaten by a killer whale during a performance in 2010, the third time the whale had been “involved in a human death.” While his colleagues upheld a prior ruling that the theme park had violated safety standards by “exposing . . . trainers to recognized hazards when working in close contact with killer whales during performances,” Kavanaugh thought that was bullshit, writing that lots of sports are dangerous, but that doesn’t mean the Labor Department should use its authority to implement regulations aimed at minimizing the chances that trainers will be eaten in full view of paying customers. “When should we as a society paternalistically decide,” Kavanaugh asked, “that the risk of significant physical injury is simply too great even for leager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?” Presumably B-Kavs, as we imagine his fellow Yalies called him, also believes that coal-mining companies shouldn’t have to comply with onerous rules intended to prevent mine collapses—because those miners know what they’re signing up for, dammit.
Unsurprisingly, Kavanaugh’s take on the SeaWorld incidentdidn’t go over well with labor unions and workers’-rights groups, many of which have opposed his nomination. (“Judge Kavanaugh routinely rules against working families, regularly rejects the employees’ right[s] to receive employer-provided health care, too often sides with employers in denying employees relief from discrimination in the workplace, and promotes overturning well-established U.S. Supreme Court precedent,” AFL-CIO President Richard Trumkasaid in a statement.) But his opinion that trainer Dawn Brancheaubasically had it coming is just one of many that scare people who value things like workers’ rights, clean air, and consumer protection.
It’s also one of many items on Kavanaugh’s résumé that the administration is touting to the business community, in the hopes that it will help push his nomination through, per Politico:
The White House on Monday immediately played up Brett Kavanaugh’s pro-business, anti-regulation record and is asking industry trade groups for help pushing his confirmation through the Senate . . . With Republicans holding only a sliver of a majority in the Senate, deep-pocketed business groups could have enough influence, especially in an election year, to help swing votes in Kavanaugh’s favor.
In a one-page document, which was obtained by Politico, the White House wrote that Kavanaugh has overruled federal regulators 75 times on cases involving clean air, consumer protections, net neutrality, and other issues. Most recently, in PHH Corp. v. Consumer Financial Protection Bureau, he favored curtailing the power of independent federal regulators.
“Judge Kavanaugh protects American businesses from illegal job-killing regulation,” the White House bragged in its e-mail, adding that “Kavanaugh helped kill President Obama’s most destructive new environmental rules,” and has “led the effort to rein in unaccountable independent agencies.” Indeed, the nominee has in fact written that “independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” In a 2016 appellate-court case, he said that the Consumer Financial Protection Bureau was “unconstitutionally structured,” because its director cannot be fired by the president without cause, suggesting that, should it come to it, he’ll grant Acting Director Mick Mulvaney’s lifelong dream of seeing the agency burned to the ground.
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Elsewhere, critics say that Kavanaugh’s time on the bench has been marked by “hostility to federal regulatory agencies trying to protect the environment.” According to Bill Snape,a senior counsel with the Center for Biological Diversity, Kavanaugh “sides with industry, he sides with deregulation, he sides with those who would have science be in retreat. He has been a dark force on the D.C. Circuit and now seems to have the opportunity to bring his bag of tricks to the Supreme Court.”
All of which, obviously, makes him the perfect candidate for Trump. Just something to remember should you work in an environment where you could be construed by colleagues as a tasty snack.
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Trump has no idea how NATO works
Here’s what the president of the United States tweeted on Tuesday, one day before the summit in Brussels:
In fact, that’s not how the alliance works at all. Members do not pay the United States, hence they cannot be “delinquent for many years in payments,” nor should they “reimburse the U.S.” Rather, as President Twitter is seemingly unaware, NATO is a collective defense organization whose members agree to defend one another in response to an attack by an outside party. While it was agreed that members will increase their defense spending levels to 2 percent of their G.D.P., they said they would do so by 2024, not whatever earlier date Trump has in mind. As is the case with most instances of the president saying or tweeting things that are factually inaccurate, one cannot, as New York’s Jonathan Chaitwrites, “rule out the possibility that Trump lacks the mental capacity to understand the basic form of America’s most important alliance.” But given his apparent hatred of NATOand desire to pull out of any multilateral agreements signed before he took office, it’s equally possible that, as Chait writes, Trump is “choosing not to understand this, so that he can precipitate a fissure within the alliance.”
Of course Rudy Giuliani is working for foreign clients while serving as the president’s lawyer
Giuliani said in recent interviews with The Washington Postthat he is working with clients in Brazil and Colombia, among other countries, as well as delivering paid speeches for a controversial Iranian dissident group. He has never registered with the Justice Department on behalf of his overseas clients, asserting it is not necessary because he does not directly lobby the U.S. government and is not charging Trump for his services.
His decision to continue representing foreign entities also departs from standard practice for presidential attorneys, who in the past have generally sought to sever any ties that could create conflicts with their client in the White House.
“I’ve never lobbied him on anything,” Giuliani told the Post,referring to Trump. “I don’t represent foreign government in front of the U.S. government. I’ve never registered to lobby.” Among the ex-mayor’s clients is the Mujahideen-e-Khalq, a.k.a. MEK, an Iranian resistance group that the State Department listed as a terrorist group as recently as 2012, from whom Giuliani said he has regularly received payments for the past decade.
Carrie Menkel-Meadow, a legal-ethics professor at University of California-Irvine told the Post that, obviously,it’s not a great idea for a lawyer serving the president to have foreign business clients because of the high probability they’ll have opposing interests. “I think Rudy believes because he is doing the job pro bono the rules do not apply to him,” she said, “but they do.”
Oops: the tax cuts might not juice the economy at all
Of course, given that this analysis is coming from economists at the Federal Reserve Bank of San Francisco, we assume anyone on Team Tax Cuts will write it off as pinko claptrap:
The tax cuts Republicans enacted in late 2017 will likely provide less of a boost to economic growth than many forecasters predict—and possibly none at all—economists at the Federal Reserve Bank of San Francisco said Monday.
That’s because the changes took effect at a time when the economy was already firing on all cylinders. As a result, there are fewer unemployed workers, spare resources, and idled factories ready to kick into action than there would have been during a downturn.
Citing a bevy of recent research, economists Tim Mahedyand Daniel J. Wilson said fiscal stimulus measures tend to make a bigger splash when there is more slack in the economy.
“The projected procyclical policy over the next few years may raise concerns regarding the nation’s fiscal capacity to respond to future downturns and its ability to manage the growing federal debt,” Mahedy and Wilson wrote. “However, it also has important implications for the macroeconomic impact of the fiscal stimulus represented by the [tax law] and the consequent increase in the deficit.”
Sell-side analyst chooses road less traveled in resigning from job
An irate sell-side analyst appears to have chosen a memorable way to resign—by uncorking a champagne bottle and spraying it around his boss’s office and then pouring the bubbly on the floor around the rest of the office.
A video of the after-hours rampage was posted to an Instagram account belonging to Francesco Pellegrino,formerly of Sidoti & Co.
Music is heard in the background of many of the video’s clips, including Whitney Houston’s “How Will I Know” and Marky Mark and the Funky Bunch’s “Good Vibrations.”
Pellegrino did not return the Post’s requests for comment. When asked about the office trashing, Sidoti said, “I don’t even know how to respond,” before hanging up.
Elsewhere!
Hedge Funds Facing Trump’s Trade War Crossfire Feel the Pain (Bloomberg)
McKinsey Ends Work With ICE Amid Furor Over Immigration Policy (N.Y.T.)
Elliott Management launches action to take control of AC Milan (Reuters)
Swiss Say 1MDB Used as Ponzi Scheme to Bribe Officials (Bloomberg)
Credit Suisse’s Paul Dexter Departs Firm After Intern Investigation (Bloomberg)
Elon Musk doesn’t like being called a billionaire (Twitter)
Morgan Stanley C.E.O. Candidate List Takes Shape with Promotions (Bloomberg)
Man solves 2,474 Rubik’s cubes one-handed in 24 hours (UPI)
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Yup. Standing up for the rights of the already overprivileged against the vulnerable masses. This Dude should make mincemeat out of the Bill of Rights. After all, the Founding Fathers wanted to protect corporations against the actions of individuals.
I can hardly wait for him to uphold reparations for the tea merchants so grievously harmed by those rowdy “patriots” during the highly illegal “Boston Tea Party.”
It was an outrageous assault on commerce, stability, private property, the rule of law, and societal order, as well as an affront to investors and the privileged! If anyone ever deserved to be eaten by Killer Whales, it was those lawless and scummy “Tea Partiers!”
B-Kavs is certainly a judge for whom common sense, humanity, reason, facts, and the US Constitution will never get in the way of protecting corporate privilege and GOP political interests. And, he’ll still be meting out injustice and inequality long after I’m gone.
Maria Sacchetti and Ann E. Marimow report for the Washington Post:
“An undocumented immigrant teen asking to end her pregnancy is entitled to seek an abortion without delay, according to a ruling Tuesday from a federal appeals court in Washington.
The order from the full U.S. Court of Appeals for the D.C. Circuit — without oral argument — reverses a decision last week from a three-judge panel of the same court that would have postponed the abortion for the 17-year-old who is being held in federal custody in Texas. The Trump administration had denied the teen’s request, citing the government’s new policy of refusing to “facilitate” abortions for unaccompanied minors.
The timeline was at issue because the teenager is more than 15 weeks pregnant and Texas law bans most abortions after 20 weeks.
The 6-3 ruling sent the case back to a lower court judge who within hours of the decision had ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider.
“Today’s decision rights a grave constitutional wrong by the government,” D.C. Circuit Judge Patricia A. Millett wrote.
In the dissent were the court’s three active judges nominated to the bench by Republican presidents. Judge Brett M. Kavanaugh said the majority has “badly erred” and created a new right for undocumented immigrant minors in custody to “immediate abortion on demand.”
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Read the complete story at the link.
Not to worry, Judge K. Your Anti-Constitution, Anti- Abortion “creds” remain intact. So you should still have a shot at the next Trump Supreme appointment.
Will the Trumpsters now seek “Supreme Intervention?”
“On Friday afternoon, the U.S. Court of Appeals for the District of Columbia Circuit granted an undocumented minor in federal custody conditional access to abortion—within the next few weeks. The decision marks a compromise by two conservative judges keen to preserve their anti-abortion bona fides without transgressing Supreme Court precedent, which clearly protects the minor’s right to terminate her pregnancy. This ruling will force the minor at the heart of this case, who is referred to as Jane Doe, to continue her unwanted pregnancy for at least 11 more days.
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Thus, it is quite possible that Kavanaugh’s handiwork will fail, and the government will be back in court in a few weeks arguing against Doe’s abortion rights. By that point, Doe will be approaching the point at which she cannot legally terminate her pregnancy in Texas. The government’s intervention has already prevented her from getting a first-trimester abortion, a simpler procedure than a second-trimester abortion. Now HHS has been handed a strategy to keep her pregnant for weeks longer. Kavanaugh may think he has played the conciliator in this case. But in reality, he’s given the government another chance to run down the clock on Doe’s abortion rights.”
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Read Stern’s complete article at the above link.
Looks to me like Judge Kavanaugh’s political instincts and desire to keep alive a possible nod for the Supremes trumps his responsibility to the Constitution, to litigants, and to the public to make tough decisions (which, after all, is what he actually gets paid for). Little wonder that trial judges (not as many places to “run and hide” at the “retail level”) often look at their “ivory tower” appellate colleagues with a jaundiced eye!
