Tag Archives: Brett Kavanaugh

Justice, Justice..

Like many of you, I get the almost-daily newsletter from Heather Cox Richardson, who reliably reports on current events and provides valuable historical context illuminating them.

Last week, Richardson made a “catch” that I had missed–and it provided further evidence of the corruption that was (along with monumental incompetence) a hallmark of the Trump Administration.

Evidently, during a Senate hearing and in response to a question from Senator Sheldon Whitehouse, FBI director Christopher Wray  shed light on the Administration’s short-circuiting of the background investigation into then–Supreme Court nominee Brett Kavanaugh. (Note: I’m not sure when that hearing occurred–it may have been one held a year or so ago.) According to that testimony, more than 4500 tips about Kavanaugh that were received by an FBI hotline were “separated out” and transmitted to the White House without investigation. The FBI subsequently interviewed only people designated by the White House.

The agency completed the supplemental background check triggered by the accusations of sexual assault in exactly four days–and FBI agents did not interview either Kavanaugh or Christine Blasely Ford, the woman who publicly testified against him, or the other women who came forward to lodge similar accusations–Deborah Ramirez, and Julie Swetnick. 

The lack of clear vetting extended far beyond the allegations of personal sexual misconduct. As the Leadership Conference on Civil and Human Rights pointed out in a letter objecting to his elevation to the Court, Kavanaugh’s judicial conduct was a matter of equal concern.

Judge Kavanaugh’s 12-year record on the U.S. Court of Appeals for the D.C. Circuit, as well as his known writings, speeches, and legal career, demonstrate that if he were confirmed to the Supreme Court, he would be the fifth and decisive vote to undermine many of our core rights and legal protections.  In case after case, he has ruled against individuals and the environment in favor of corporations, the wealthy, and the powerful.  He has advanced extreme legal theories to overturn longstanding precedent to diminish the power of federal agencies to help people.  And he has demonstrated an expansive view of presidential power that includes his belief that presidents should not be subject to civil suits or criminal investigations while in office despite what misconduct may have occurred.  Many of our organizations opposed Judge Kavanaugh’s nomination to the D.C. Circuit,[1] and our fears and concerns have been realized.  Judge Kavanaugh has not served as a neutral and fair-minded jurist.  He has served as a conservative ideologue who lacks the impartiality and independence necessary to sit on the highest court in the land.

The letter went on to document the cases in which Kavanaugh had displayed his lack of “impartiality and independence,” his lack of commitment to racial justice, and his “extreme and disturbing views about presidential power.” The letter was signed by 180 organizations.

Then there was the matter of the 15 ethics complaints filed against Kavanaugh, alleging judicial misconduct during his tenure as a lower-court judge. Once he was elevated to the Supreme Court, proceedings investigating those complaints were dismissed.  Dismisal was because the ethics rule provides that proceedings may be concluded if the judge charged with conducting them finds that “action on the complaint is no longer necessary because of intervening events.” The intervening event in Judge Kavanaugh’s case was his appointment to the Supreme Court. “That is because the Act covers complaints only about circuit judges, district judges, bankruptcy judges, magistrate judges, and judges of some special courts.”

And so here we are… 

That this very flawed, partisan individual is on the Supreme Court is certainly troubling, but there have been other Justices whose flaws have been widely recognized. (Alito was an example well before Boggs.) What is far more troubling was the corrupt process that led to Kavanaugh’s confirmation. It’s one thing to find, after the fact, that a nominee lacks hoped-for judicial temperament or intellect. (The allegations against Clarence Thomas, for example, were fully aired, and most Americans only subsequently realized that the Senate had believed the wrong testimony.) Refusal to conduct a thorough vetting is a far more serious matter, and it’s pretty clear that short-circuiting a full and fair investigation was a deliberate–and successful– act of the Trump Administration.

I tend to harp on the importance of institutions, because the health of the American polity ultimately rests upon the integrity and ongoing utility of those institutions. Separation of Powers is a foundational element of our system of government, and when one branch can effectively control another by ignoring institutional safeguards in order to place favored individuals in positions of power, that foundational element is violated.

Elevating Brett Kavanaugh and denying Merrick Garland a hearing were two steps in the Right’s determined campaign to eliminate individual liberties and move America toward autocracy.

They have to be stopped.

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About Those Angry White Guys…

Like many women, I am still fuming over the Kavanaugh hearing. Not only was a man elevated to the Court who clearly has no business being there–for multiple reasons, not simply the very credible accusations of sexual assault–but women were dismissed, diminished and disregarded in ways that still infuriate me.

After the hearing, I posted about the extreme anger that permeates contemporary political life, and what I see as the reasons for that anger. It probably isn’t surprising that I see some  as righteous, and some as considerably less so. Those displaying the latter type, I wrote,

are primarily White Christians (disproportionately but not exclusively male) who have a well-founded fear that they soon will be robbed of their cultural dominance and privilege. They are reacting with fury to culture change and the increasing claims to a place at the civic table by LGBTQ, black and brown people, and women. Robert Jones has documented their resentment and rage in his recent book, The End of White Christian America.

It wasn’t just an analysis from one feminist blogger. A few days ago, Paul Krugman’s column made a similar point.

When Matt Damon did his Brett Kavanaugh imitationon “Saturday Night Live,” you could tell that he nailed it before he said a word. It was all about the face — that sneering, rage-filled scowl. Kavanaugh didn’t sound like a judge at his Senate hearing last week, let alone a potential Supreme Court justice; he didn’t even manage to look like one.

But then again, Lindsey Graham, who went through the hearing with pretty much the same expressionon his face, didn’t look much like a senator, either.

There have been many studies of the forces driving Trump support, and in particular the rage that is so pervasive a feature of the MAGA movement. What Thursday’s hearing drove home, however, was that white male rage isn’t restricted to blue-collar guys in diners. It’s also present among people who’ve done very well in life’s lottery, whom you would normally consider very much part of the elite.

Krugman referenced the considerable body of research debunking the notion–advanced by good-hearted albeit naive liberals– that Trump supporters were economically insecure.

What distinguished Trump voters was, instead, racial resentment. Furthermore, this resentment was and is driven not by actual economic losses at the hands of minority groups, but by fear of losing status in a changing country, one in which the privilege of being a white man isn’t what it used to be.

That resentment isn’t confined to people who are economically insecure. It isn’t even more prevalent among them.

And this sort of high-end resentment, the anger of highly privileged people who nonetheless feel that they aren’t privileged enough or that their privileges might be eroded by social change, suffuses the modern conservative movement.

As Krugman points out, that “high end resentment” positively oozes out of Trump. And Kavanaugh is cut from the same cloth.

As a lot of reporting shows, the angry face Kavanaugh presented to the world last week wasn’t something new, brought on by the charges of past abuse. Classmates from his Yale days describe him as a belligerent heavy drinker even then. His memo to Ken Starr as he helped harass Bill Clinton — in which he declared that “it is our job to make his pattern of revolting behavior clear” — shows rage as well as cynicism.

And Kavanaugh, like Trump, is still in the habit of embellishing his academic record after all these years, declaring that he got into Yale despite having “no connections.” In fact, he was a legacy student whose grandfather went there.

Adding insult to perceived injury,

An increasingly diverse society no longer accepts the God-given right of white males from the right families to run things, and a society with many empowered, educated women is finally rejecting the droit de seigneur once granted to powerful men.

And nothing makes a man accustomed to privilege angrier than the prospect of losing some of that privilege, especially if it comes with the suggestion that people like him are subject to the same rules as the rest of us.

Exactly.

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About That Umpire Analogy…

In the charade labeled “hearings” on Brett Kavanaugh’s nomination to the Supreme Court, we have once again been treated to the facile comparison of judging and “umpiring,” first used to great effect by now-Chief Justice John Roberts.

There has been plenty to criticize about these hearings, even if the unconscionable and un-American treatment of Merrick Garland isn’t still sticking in your craw. Like so much of federal governance, which has abandoned even the pretense of concern for the common good, the process of selecting a Supreme Court Justice has devolved from a consideration of the candidate’s character and qualifications into a battle for partisan dominance.

Even before the late-breaking allegations that he tried to rape a young woman while in high school–allegations that appear more credible by the day (why else would Senator Grassley have previously secured and pocketed that letter by 65 women saying Kavanaugh was a nice guy), and considerable evidence that he had perjured himself during his prior confirmation hearings, Kavanaugh had emerged as a (very accomplished, clearly intelligent) partisan hack.

We shouldn’t be surprised by either the extreme partisanship or the lack of candor; that’s why he was nominated.

His unwillingness to really engage Senators’ questions, and his pat (non)responses have been par for the course, as the process has become more superficial over the years. The “umpire” analogy is of a piece with the smug responses we’ve come to expect, but my cousin–a doctor with a blog of his own that I quote from time to time–had a perfect reaction to that bit of sophistry:

I usually devote time to exposing health frauds and quackery. But now, I can’t resist bigger prey, namely the U.S. Supreme Court. Recently candidate judge Brett Kavanaugh stated that he likened his Judicial position to that of an “umpire,” an opinion previously attributed also to Chief Justice Roberts during his early hearings in 2005. This assertion, while seeming to express purity and impartiality, is patently false!Why? Because we can first use the example of a real umpire, who works individually in a baseball game and makes binary decisions such as “safe” or “out.” Although usually easily decided, borderline decisions can be resolved by instant video replay, again observed by a single person, usually the umpire himself.

Now let’s extend this analogy to the supreme court: Using the baseball analogy, we place nine justices, or “umpires,” near first base, in order to judge outcomes. A ground ball results in a close call at this base, and our justices then, after thorough discussion, decide that, by a vote of 5 to 4, the runner is out. But the minority of 4 think, possibly correctly, that he is safe. Sound ridiculous? It is!

Here is what makes this scenario so ridiculous. Out of necessity, judges make complex decisions that are subjective, vulnerable to individual bias, education and background, usually require more than one person, and are subject to later reversal by other courts or, in the case of the Supreme Court, even the same court in later years. Examples of reversals are manifold and include such issues as legitimacy of slavery, equal access to public restaurants and schools, etc., etc. Does that description sound even remotely like an umpire? I think not!

I’d say that’s an excellent diagnosis!

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Asking The Wrong Question

As the Senate “considers” the nomination of Brett Kavanaugh (note quotation marks, since  support for this particular nominee is entirely partisan and no genuine consideration of his record is being allowed), much of the focus is on his presumed “pro life” approach to cases involving abortion.

Media framing of this issue highlights the most frustrating element of America’s “pro-choice” or “pro-life” public debate:  the persistent refusal to confront the actual question, which is not whether a pregnant woman should continue or terminate her pregnancy.

The question is: who should have the power to make that decision? 

As I have repeatedly argued, a government with the authority to forbid abortion is a government with the authority to require it. I usually point to China, where the government has done precisely that, but yesterday, my lawyer son pointed me to a case right here in the good old U.S. of A.– and a judicial decision by none other than Brett Kavanaugh.

As Salon reported, 

In 2007, as an appellate judge in Washington, D.C., Kavanaugh was presented with an unusual case involving two women who had wanted to continue their pregnancies but had been forced to have abortions instead. They sued and Kavanaugh ruled against them, denying their claims that they had a right to be consulted about the decision to terminate their pregnancies.

Many Americans, probably most, understand the abortion debate to be about a struggle between the right of women to bodily autonomy and the “right to life” that anti-choicers claim embryos and fetuses have. In reality, as this case shows, the legal debate is really only about autonomy — so much so that an anti-choice judge like Kavanaugh ruled against women who wanted  to “choose life,” as conservatives say, rather than allow them a greater measure of autonomy….

The case is a complex one, but the basic story involved three women who received care from the District of Columbia Mental Retardation and Developmental Disabilities Administration. All three women had intellectual disabilities and had been determined legally incompetent. One woman had an elective eye surgery and two had abortions, all chosen for them without any consideration of their wishes. The women argued that they had a right to have their wishes considered, but Kavanaugh ruled against them….

Legal standards regarding who is competent to make medical decisions for themselves are complicated and vary quite a bit from state to state. But Mathis said that even in states that have the fewest autonomy rights for people with certain disabilities, “most courts consider the person’s wishes,” even if they may ultimately rule against them. Kavanaugh, however, “just rejected the notion that there was any reason at all” to ask the women in that case what they wanted.

I emphasized that last line, because it illuminates what is truly at stake in these arguments. The question is not “to abort or not to abort.” The question is: who decides? The Bill of Rights is essentially a list of things that government does not get to decide–what you read, what you believe, whether or to whom you pray. Government officials don’t get to decide to  search you (or your “papers or effects”) simply because you look shifty, or out of place, or because the officer “has a hunch.”

As snotty as the faux originalists are about the constitutional “penumbra” referenced in Roe, it is impossible to read through the Bill of Rights without recognizing that the entire document rests on the Founder’s concern to protect personal autonomy and to safeguard the right of individuals to make their own moral and political decisions–including what the Court has subsequently dubbed “intimate” decisions–free of government coercion or interference. The 9th and 10th Amendments make it clear that rights not “enumerated” (that is, not specifically listed) are not to be “denied or disparaged,” and that powers not specifically delegated to the central government are to be retained by the states and the people.

It is an act of intellectual dishonesty to dismiss the limits that the Bill of Rights places on government’s authority to control its citizens’ exercise of self-determination.

The question, I repeat, is not “what shall be decided?” but “who shall decide it?”

The question for Brett Kavanaugh is not whether he fancies himself “pro-life.” It is whether he is willing to acknowledge that the power of government to control women’s lives is limited by our constitution.

His jurisprudence makes it abundantly clear that he is not willing to make that acknowledgement. For that reason (and a number of other very troubling decisions he has handed down), he is unfit to sit on the nation’s highest court.

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Brett Kavanaugh–The More We See, The Worse It Gets

While critics of his nomination fixate on Kavanaugh’s distaste for Roe v. Wade, his vendetta against health care programs like the ACA, and his antagonism to government oversight (evidently, the king can do no wrong), Paul Krugman highlights an even more dangerous element of the nominee’s judicial philosophy, his anti-worker bias.

It isn’t as if working-class Americans haven’t been taking it on the chin for a long time. But in the era of stagnant wages and diminishing worker protections, Kavanaugh might just be the coup de grace. Krugman points out that Trump has governed as a pretty orthodox Republican, if you overlook the way he has replaced racial dog-whistles with raw, upfront racism; accordingly, he has consistently betrayed the populists who supported him.

Many people have made this point with respect to the Trump tax cut, which is so useless to ordinary workers that Republican candidates are trying to avoid talking about it. The same can be said about health care, where Democrats are making Trump’s assault on the Affordable Care Act a major issue while Republicans try to change the subject.

But I think we should be seeing more attention devoted to the way Trump’s nomination of Brett Kavanaugh for the Supreme Court fits into this picture. The Times had a good editorial on Kavanaugh’s anti-worker agenda, but by and large the news analyses I’ve seen focus on his apparently expansive views of presidential authority and privilege.

I agree that these are important in the face of a lawless president with authoritarian instincts. But the business and labor issues shouldn’t be neglected. Kavanaugh is, to put it bluntly, an anti-worker radical, opposed to every effort to protect working families from fraud and mistreatment.

Kavanaugh wrote the opinion absolving Sea World from  liability for the death of a worker attacked by a killer whale–hey, she should have known the risks. He says the Consumer Financial Protection Bureau is unconstitutional–so caveat emptor, consumer. He’s also supported the rights of business to suppress union organizing.

Krugman reminds his readers that Trump’s betrayal of working class Americans goes far beyond his counterproductive trade policies.

There’s growing evidence that wage stagnation in America – the very stagnation that angers Trump voters — isn’t being driven by impersonal forces like technological change; to an important extent it’s the result of political changes that have weakened workers’ bargaining power. If Trump manages to install Kavanaugh, he’ll help institutionalize these anti-worker policies for decades to come.

I grew up in Anderson, Indiana. My father was a Democrat and my mother was a Republican. Despite their other political differences, they agreed about unions: they both hated them. Back then, Anderson’s economy was dependent upon then-thriving General Motors and Guide Lamp factories, and periodic labor unrest was characterized by thuggish (and sometimes violent) union behavior. It was the (brief) heyday of union power, and that power wasn’t always used in moderation.

Today, the situation is reversed. Decades of successful Republican efforts to enact anti-union policies, plus such things as automation and the so-called “gig economy,” have eviscerated the unions that used to bargain collectively on behalf of workers. Meanwhile, corporate America has used its superior weapons–political contributions and lobbyists–not to level the playing field, but to tilt it dramatically  in management’s favor.

Wildly unequal power is not a recipe for fairness to anyone. When clout is more or less evenly distributed between labor and management, productive bargaining can occur. When either side of the equation dominates, the outcomes unduly favor the powerful– and generate resentment from those who leave the bargaining table empty-handed (if there is a bargaining table at all).

That resentment–and the racial anxiety that feeds on it–is what elected Donald Trump and accelerated the deconstruction of America’s democratic norms. The last thing we need is a Justice Kavanaugh to make the current impotence of organized labor a permanent feature of American law.

If Democratic Senate candidates in red states need a persuasive reason to vote against Kavanaugh’s confirmation, his overwhelming animosity to the rights of American workers should fit the bill. (Senator Donnelly–are you listening?)

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