Saturday, September 15, 2018

With Questions Unanswered, Reopen Kavanaugh Hearing

         Update: Pressure to postpone a vote on Supreme Court nominee Brett Kavanaugh increased on Sunday (Sept. 16) after a California psychology professor, Christine Blasey Ford, identified herself as Kavanaugh's accuser and publicly detailed the alleged assault along with corroborating evidence of notes from therapy sessions in 2012. Two Republican senators, Judiciary Committee member Jeff Flake of Arizona and Tennessee's Bob Corker, both called for postponing the scheduled Sept. 20 vote to hear from Ford, but the White House said President Trump was stil committed to Kavanaugh's nomination and the announced schedule.
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   The Senate Judiciary Committee owes it to the American public and to Judge Brett Kavanaugh himself to reopen its hearing on his nomination to the U.S. Supreme Court. The committee's dereliction of duty has been an essential element from the start of the narrow Republican majority's plan to railroad Kavanaugh's nomination through to confirmation before the Court opens its new term in October even without a full examination of his White House records.
      As an initial point, the Republicans' rush to get Kavanaugh confirmed before First Monday in October contradicts their decision two years ago to leave the Supreme Court short-handed for more than a year. Senate Majority Leader Mitch McConnell and the Judiciary Committee's chairman, Chuck Grassley, left the Court with one seat vacant in 2016 rather than open a hearing on President Obama's nomination of Merrick Garland in spring 2016.
      The consequences of the Judiciary Committee's planned rush to judgment -- the many unansweed questions about his White House service -- were clear even before the bombshell accusation that Kavanaugh allegedly committed a sexual assault on a fellow high school student more than 30 years ago. The accusation by an as-yet unidentified contemporary of Kavanaugh's now living in California stems from constituent correspondence with her representative in Congress that the Judiciary Committee's ranking Democrat, Dianne Feinstein, held for two months before finally deciding to forward it to the FBI for possible investigation.
      The events naturally brought to mind the belated accusation of sexual harassment against the then Supreme Court nominee Clarence Thomas in 1991. A lot has changed since law professor Anita Hill made that accusation against her former boss at the Equal Employment Opportunity Commission. Even with the #MeTooMovement as a backdrop, however, Kavanaugh's anonymous accuser apparently is trying to avoid the inevitable nationwide media firestorm of a public accusation.
      Initially, Feinstein disclosed only that she had forwarded an allegation of some sort to the FBI, but the accusation was unearthed with some measure of detail within 24 hours by the sexual harassment reporting team at the New Yorker: Ronan Farrow, a Pulitzer prize winner for his stories on the Hollywood mogul Harvey Weinstein, and Jane Mayer, a veteran of the Thomas confirmation hearing. In sum, the woman claims that Kavanaugh and another boy forced her into a bedroom at party and that Kavanaugh forced himself on her with the door locked and music playing to drown out her protests. Kavanaugh responded by "categorically and unequivocally" denying the accusation.
      Whatever one makes of the accusation, the committee owes it to the public and to the constitutional separation of powers to reopen the hearing to fully examine the parts of  Kavanaugh's testimony that were at the least disingenuous if not outright perjurious. Kavanaugh was unbelievable on the stand as he sought to explain away the apparent contradictions between his White House-era emails and his testimony in 2004 as a nominee for the D.C. Circuit Court of Appeals.
      Back then, Kavanaugh sought to minimize his role as a partisan operative in the White House by, for example, denying any involvement with one of President George W. Bush's most controversial judicial appointments: the nomination of Alabama's William Pryor Jr. to the Eleventh Circuit. Kavanaugh told the Judiciary Committee in 2004 that he was "not primarily involved" in Pryor's nomination while White House staff secretary, but an email from the partial release of his White House records confirm at least some involvement with the eventually successful push for Pryor's confirmation despite his intemperate remarks about the Roe v. Wade abortion rights decision.
      In his current testimony, Kavanaugh was unconvincing in trying to rebut the accusation from Vermont Democrat Patrick J. Leahy that he was complicit in the then-notorious theft of a Democratic memo on judicial nominations in 2004. Kavanaugh's email record showed that he received a copy of the Democrats' memo from the Republican committee staffer Manuel Miranda in an email with the subject line: "Spying."
      Kavanaugh sought to prove his innocence by contending to Leahy that he thought Republican staffers had obtained the information legitimately through the ordinary process of Capitol Hill intelligence-sharing. Leahy, an eight-term senator with a somewhat bipartisan record on judicial nominations, was not buying Kavanaugh's explanation. "I may have been born at night," Leahy quipped at the hearing [Sept. 6], "but not last night." With time to reflect, Leahy responded with an op-ed in the Washington Post [Sept. 14] stating that he would vote against Kavanaugh's confirmation. Kavanaugh, he said, had "cast aside truth in pursuit of raw ambition."
      The Judiciary Committee convened on Thursday [Sept. 13] after Kavanaugh had filed some 263 pages of answers to the 1,000 additional questions that Democrats had posed following the supposed end of the four-day hearing the week earlier. Democrats made a series of motions to reopen the hearing and to subpoena various witnesses, including Miranda, but the Republicans voted the motions down in partisan lock-step.
      None of the committee's Republicans — all of them male — evinced not a scintilla of doubt about Kavanaugh's truthfulness, his integrity, or his bona fides as a self-professed "independent federal judge." With the hearing completed, all eyes remained focused on the two uncommitted Republican senators, Alaska's Lisa Murkowski and Maine's Susan Collins, both of them pro-choice women unswayed so far by warnings that Kavanaugh would vote to overturn Roe v. Wade.

Sunday, September 9, 2018

On Kavanaugh, Some Answers Ring False

      Brett Kavanaugh's mother taught her young son an important lesson that he recalled for members of the Senate Judiciary Committee as the committee opened its hearing on Kavanaugh's nomination as a justice on the U.S. Supreme Court. "Use your common sense," Martha Kavanaugh, later a judge herself in Montgomery County, Maryland, advised. Consider, she went on, "what rings true, what rings false."
      Common sense points to the answers to some of the questions left hanging even after Kavanaugh's two long days alternately answering or dodging questions from a politically divided Senate committee. Political differences aside, a common-sense reading of Kavanaugh's testimony shows that he is ready if confirmed to vote to overrule the abortion-rights decision Roe v. Wade and that he is an uncertain vote at most to uphold any investigative procedures directed at the president who nominated him for the Supreme Court.
      On abortion, Kavanaugh' and his moot-court coaches devised phrasing designed to deflect questions about what his Democratic and progressive opponents saw as his greatest vulnerability. Roe v. Wade, Kavanaugh repeated time and time again, "is an important precedent and it has been reaffirmed several times." He went on to acknowledge that the Court in its later decision, Planned Parenthood v. Casey, considered overruling Roe but decided not to after the majority justices weighed the various factors traditionally considered before reversing a prior decision.
      Sticking to what he called "nominee precedent," Kavanaugh insisted that he could go no further in saying how he would rule in a case that presented the question. But abortion-right advocates zeroed in on Kavanaugh's use of anti-abortion language both in his testimony and in his only opinion to date in an abortion case.
      In recalling his dissenting opinion in the Priests for Life case, Kavanaugh blithely said that the Catholic group was resisting the Affordable Care Act's mandate to cover contraception because it opposed "abortion-inducing drugs." In his written opinion in the case of the Mexican teenager seeking an abortion while in immigration detention in Texas, Kavanaugh included another of the code words used by anti-abortion groups. He described the girl's legal position as amounting to "abortion on demand."
      Kavanaugh actually made his disagreement with Roe quite clear in his answers about other cases, as TPM's Ian Milheiser pointed out. Kavanaugh gave a qualified endorsement to the precursor privacy decision in Griswold v. Connecticut. He also embraced the restrictive "history and tradition" test from Glucksberg as the governing precedent for recognizing "unenumerated rights" as part of substantive due process. 
      With Kavanaugh's views so clear, Republican senators chose not to embrace him as fulfilling President Trump's pledge to appoint a justice who would overrule Roe. South Carolina's Lindsey Graham laid out the case against Roe in a colloquy with Kavanaugh, but the nominee refused to bite. As Martha Kavanaugh might remark, what rings true is Kavanaugh's disagreement with Roe and what rings false is his professed open-mindedness.
      Presumably, Republicans are silent because they know that polls consistently show substantial majorities opposed to overturning Roe. In addition, they know that a misstep on the issue might cost Kavanaugh one or both of the pivotal votes of the two uncommitted Republican senators, both of them pro-choice women: Maine's Susan Collins and Alaska's Lisa Murkowski.
      On presidential power, Kavanaugh has a written record in a law journal article opposing civil or criminal investigations of the chief executive while in office. With special counsel Robert Mueller's investigation still under way, Kavanaugh significantly never disavowed his previous view. Admittedly, Kavanaugh repeatedly praised the Court's 1974 decision in the Nixon tapes case as one of the "greatest moments" in history. But Kavanaugh declined, under questioning by Connecticut Democrat Richard Blumenthal, to specify that the decision would apply not only to a trial court subpoena but also to the more immediate eventuality of a grand jury subpoena to Trump.
      Kavanaugh anticipated questions about his independence from Trump but failed, by discreet silence, to dispel concerns. He noted that in his first year on the D.C. Circuit, he ruled against his former White House by rejecting the Bush administration's policy limiting judicial review for Guantanamo detainees.
      Given several opportunities, however, Kavanaugh stayed "three zip codes away" from any criticism of Trump's tweets mocking the federal judiciary and interfering with Justice Department criminal prosecutions. A "pro-law" independent federal judge, as Kavanaugh repeatedly professed to be, might have spoken up for the rule of law and the independence of the judiciary against a meddlesome president.
      On top of those issues, Democratic senators properly questioned Kavanaugh's truthfulness in his current testimony and in his testimony before his confirmation for the D.C. Circuit. With new evidence from Kavanaugh's emails while in the White House, Democrats showed that the Bush White House staffer was misleading at least in minimizing his involvement in one controversial judicial appointment and his knowledge of the warrantless surveillance and detention and interrogation programs. With most of Kavanaugh's White House records still unreleased, the disclosures showed that Democrats had good reason to keep up their fight despite the Republicans' intransigence.
      Common sense shows to anyone with an open mind what kind of justice Kavanaugh will be if confirmed. The warnings from Democrats ring true; the vacuous assurances from Republicans ring false. But common sense is a casualty in this all-out partisan war for the future of the Supreme Court.

Thursday, August 30, 2018

Kavanaugh's Threat to Equal Justice Under Law

      The Senate Judiciary Committee will be put to the test next week [Sept. 4-7] to determine whether senators can show what kind of Supreme Court justice Brett Kavanaugh would be if, as widely expected, he is confirmed for the lifetime position. Two groups opposed to the nomination produced detailed, documented reports this week [Aug. 29] that show, based on Kavanaugh's judicial record on the D.C. Circuit, that he would be friendly to business interests at the expense of workers, consumers, or environmental quality and receptive to arguments to increase presidential power at the expense of Congress and independent regulatory agencies.
      The hearing, set to open on Tuesday (Sept. 4) and continue for four days, will feature as always carefully rehearsed pledges by the nominee disclaiming any ideological agenda and pledging open-mindedness if confirmed. The Republican majority, led by the committee's chairman Iowa's Chuck Grassley, will follow with lengthy recitation of Kavanaugh's undisputed academic and professional credentials and judicial experience while passing over his earlier experience as a partisan Republican hatchet-man with Kenneth Starr's much maligned investigation of President Bill Clinton.
      With the gavel in Grassley's Republican hands, the 10 Democratic senators, led by the ranking member California's Dianne Feinstein, will need to use their time wisely with incisive questions based on Kavanaugh's record to show that he would not be writing and voting as a Supreme Court justice on a blank slate. Kavanaugh's record, carefully examined, shows the likely damage to equal justice under law if President Trump succeeds in installing a second conservative ideologue on the Supreme Court.
      As best to examine Kavanaugh's judicial record, the longtime consumer advocacy group Public Citizen specifically compiled the 101 divided decisions in which he has participated in his 12 years on the federal appeals court for the District of Columbia. The report written by the group's president, Robert Weissman analyzed 61 of those cases divided into five categories: consumer and regulatory affairs; environmental cases; worker rights; damage suits against police or human rights violators; and antitrust cases.
      In those cases with judges in disagreement, a clear pattern emerged in Kavanaugh's votes and opinions. In the 22 consumer and regulatory affairs cases, Kavanaugh sided with corporate interests and against agencies or public interests in 18, all but four. In 11 of 13 environmental cases, he voted in favor of states or private companies challenging actions by the Environmental Protection Agency (EPA). He voted for employers and against employees or the National Labor Relations Board in 15 of 17 worker rights cases. He voted against plaintiffs in all seven of the cases involving damage suits against police or abusers. And he voted to narrow antitrust remedies in the two antitrust cases studied.
      Along with other critical reports issued by People for the American Way and the NAACP Legal Defense Fund, Kavanaugh emerges as a judge with little regard for the role that federal courts play in protecting civil and constitutional rights or public welfare over business interests. To fully illuminate Kavanaugh's views, Democratic senators and witnesses testifying against the nomination need to make clear what Kavanaugh will do if confirmed:
      * He will vote to restrict reproductive rights and perhaps to overturn the landmark abortion-rights decision Roe v. Wade. The evidence: Kavanaugh's 2017 speech praising the then-associate justice William H. Rehnquist for his dissent and his further votes as chief justice to overrule the decision.
      * He will vote to limit the EPA's discretion in using its statutory authority to protect the environment. Evidence: his dissent in a decision upholding the agency's authority to regulate greenhouse gases as pollutants.
      * He will vote to make it hard for public interest groups to challenge regulatory agencies for failing to protect consumer safety. Evidence: his opinion in a split decision preventing Public Citizen from suing the National Highway Traffic Safety Administration for a weak motor vehicle safety standard that the group claimed would result over time in 130,000 more deaths than a stronger standard.
      * He will vote to limit independence of federal regulatory agencies. Evidence: his opinion for a divided panel, later reversed by the full court, holding the tenure protection for the director of the Consumer Finance Protection Bureau to be an unconstitutional limit on presidential power.
      * He will vote to limit worker safety protections. Evidence: his dissent from a decision upholding a Labor Department enforcement action against Sea World for failing to protect animal trainers from the risks of killer whales.
      * He will vote to give the government more discretion to withhold agency records' requested under the Freedom of Information Act. Evidence: opinions in three split FOIA decisions, including his majority opinion rejecting an effort by the National Security Archive to obtain the CIA's report from the 1980s on the Bay of Pigs debacle.
      * He will vote to impose obstacles for employment discrimination claims. Evidence: his votes against plaintiffs in each of the 10 split-decision discrimination cases studied.
      * He will vote to give police more discretion to harass innocent citizens. The evidence: his dissent from a decision that found a police officer guilty of an unconstitutional search by going beyond the limits of a permissible stop-and-frisk when he ordered a suspect to unzip his jacket.
      From all accounts, Kavanaugh, the car-pool dad and soccer coach, is immensely likable, but the hearing must carefully examine his judicial philosophy, not his personality, and the consequences for justice if he is confirmed to create the "solid conservative majority" that his Federalist Society sponsors have long longed for.

Sunday, August 26, 2018

Trump's Presidency: The Cancer Spreads

      Donald Trump's worst day as president naturally prompted commentators, such as CNN's David Gergen, to recall John Dean's famous warning to Richard Nixon of a cancer on his presidency. In Trump's case, however, the many legal problems besetting him show not merely that there is a cancer on his presidency, but help show that his presidency itself is a cancer that is ravaging government policy and the body politic itself.
      Trump responded to the simultaneous federal court convictions of his one-time campaign chairman Paul Manafort and his former lawyer Michael Cohen [Aug. 21] not with concern or apology but with renewed appeals to his political base to shore up his unpopular presidency. The strategy requires a constant diet of red meat for the Trump base with little if any regard for public policy or political standards, so Trump's response was to change the subject to politically salable issues.
      Thus, Trump made no mention of the Manafort verdict or Cohen's guilty plea in a West Virginia rally marked by his denunciation of the  "illegal alien" charged with murder in the death of a female college student in Iowa. Americans have grown so accustomed to Trump's anti-immigrant rhetoric that hardly anyone noticed that the president he was trampling on the defendant's right to a fair trial and presumption of innocence.
      In like vein, hardly anyone remarked a few days earlier that Trump, as president of the United States, was criticizing the prosecution of his former campaign chairman Manafort while an unsequestered federal court jury was deliberating on the case. Only with the dust somewhat settled after the verdict did the Washington Post make the obvious point: "President undermining legal system, critics fear" was the headline on the page-one story. [Aug. 24].
      The legal threats to Trump's presidency increased with news that David Pecker, publisher of the National Enquirer, had been granted immunity, possibly to provide more evidence about the eve-of-election hush-money payment to porn star Stormy Daniels. In pleading guilty to two federal campaign finance violations, Cohen had explicitly implicated Trump —  "a candidate for federal office" —  in directing the payment to "influence a federal election."
      Trump responded to Cohen's guilty plea not with contrition but deliberate confusion. He told the friendly Fox News interviewer Ainsley Earhardt, incorrectly, that the payment to Daniels was legit because it came from his personal funds, not from the campaign. As for the Manafort verdict, he stated, correctly, that he longtime lobbyist's convictions for tax evasion and other charges "did not involve me." Still, critics could hardly fail to note the seeming contradiction of Trump's promise that he was hiring "only the best people."
      The legal pressure on Trump increased yet again on Thursday [Aug. 23] with the news that the Trump Organization's longtime chief financial officer Andrew Weisselberg had also been granted immunity after having testified before a federal grand jury. Weisselberg appears to be the "Executive #1" in the charging document in Cohen's case who is identified as having directed another Trump organization executive to reimburse Cohen from the charitable trust marked as  a "retainer." A federal prosecutor could readily make a criminal tax fraud case out of the directive. More broadly, Weisselberg is widely described as knowing "where all the financial bodies are buried."
      Trump's travails pale in comparison, however, to the physical and pscyhological toll on more than 500 immigrant children still separated from their parents one-month after a federal court ordered the administration to reunify the families. The family separation policy that Trump allowed Immigration and Customs Enforcement (ICE) to institute was so heartless that it even prompted a meek protest from First Daughter Ivanka Trump.
      Meanwhile, Trump's Environmental Protection Administration (EPA) is proceeding full-speed ahead with plans to weaken Obama-era regulation of dirty coal-fired power plants. "Trump digs coal" is a great slogan in West Virginia and elsewhere, but it is bad for climate change in the mid- to long term and, even sooner, to public health. The government estimates that the regulatory retreat will result in an additional 1,400 premature deaths annually between now and 2030.
      Cued by the Fox talk-show host Tucker Carlson, Trump found a new bone to throw to his white-power political base by lining up with white Afrikaners mobilizing against land reform efforts by the African National Congress-led government. Carlson aired a misleading segment that falsely claimed an increase in the killings of white farmers and mindlessly attacked the government's plan to expropriate apartheid-era landholdings without compensation for distribution to the still disadvantaged black majority.
      Trump tweeted instructions to Secretary of State Mike Pompeo to investigate as though the United States has some legitimate interest in post-apartheid land reform in South Africa. The "beloved country" of Alan Paton's poignant novel is still struggling with a full array of political, social, and economic problems two decades after the end of apartheid. The last thing South Africa needs is a tweet from Trump: a tweet that the  New York Times aptly described in an editorial as a "vile ploy" intended for domestic political purposes.
      With Trump under siege as never before, he can be expected to respond in kind with political tactics that divide the country further and distort government policy for short-term political gain. The cancer spreads, with no easy path to protecting the body politic from its ravaging advance.

Sunday, August 19, 2018

A Free Press: If You Can Keep It!

      Benjamin Franklin is famously quoted as giving a blunt warning when asked as he left the Constitutional Convention in 1787, "What have you given us?" His answer: "A Republic, if you can keep it." James Madison might have given the same answer four years later if asked about what became the First Amendment: "A free press if you can keep it."
      Barely seven years later, a partisan Congress and president demonstrated the ominous risks to freedom of the press in a poisoned political environment. The Federalist Congress and Federalist president John Adams combined to enact a law, the Alien and Sedition Acts, that resulted in the jailing of several Anti-Federalist journalists for opposing the government's policies.
      Two and a quarter centuries later, freedom of the press is again at risk in a politically poisoned environment. President Donald Trump tries to shore up his unpopular presidency by nonstop fake attacks on so-called "fake news" and on journalists that he labels as "the enemy of the people." As political scientist Brian Klaas noted in his book The Despot's Apprentice: Donald Trump's Attack on Democracy, Trump's attacks are too close for comfort to Hitler's attacks on the L├╝genpresse ("lying press") and to similar tactics of lesser autocrats.
      Distressingly, Trump's attacks have misled too many Americans, especially Republicans, into misunderstanding and devaluing the essential role that a free press plays in a democracy. Public opinion polls over the past year have registered declining support for the news media and, worse, increasing support for the government to have power to control or even shut down select news organizations.
      Here are some figures: 42 percent of self-identified Republicans surveyed in a Quinnipiac University poll released in June agreed with Trump that the press is "the enemy of the people;" 42 percent of Republicans surveyed in an NPR/PBS News Hour poll also released in June said the United States has gone too far in expanding freedom of the press.
      In an earlier poll in October, a survey of registered voters by Politico-Morning Consult found that 46 percent believed major news media fabricate stories about Trump. It is beyond irony that a president who has been found to have uttered lies and falsehoods thousands of times in the White House is believed when he claims, without any specific examples, to be victim of "fake news."
      The same survey found that 28 percent of registered voters favored allowing the government to revoke broadcast licenses of news organizations that the government accuses of fabricating stories about the government or the administration. Somewhat encouragingly, a majority — 51 percent — rejected the suggestion.
      America's newspapers, more than 300 of them, and the U.S. Senate gave a more thoughtful and more unified answer last week to Trump's calumnious charge that journalists are enemies of the people. For its part, the Senate adopted without dissenting vote a resolution sponsored by Hawaii's junior Democratic senator Brian Schatz declaring that the press "is not the enemy of the people." Without naming Trump, the resolution went to describe efforts to undermine the credibility of the press as "an attack on the democratic institutions of the United States."
      Trump has done more than criticize the news media; he has actively encouraged his followers to jeer and even threaten members of the news media. Bret Stephens, a conservative columnist with the New York Times, described in a recent column the graphic voice mail threat he received from a reader and that he viewed as the natural result of Trump's "demonization" of the media. In the Quinnipiac poll, 14 percent of the Republicans surveyed said it was sometimes appropriate for a politician to react to a member of the news media with violence.
      The 300 newspapers that joined in editorial denunciation of Trump's tactics and defense of the press's role in a democracy last week [Aug. 16] did so in part out of financial self-interest. Newspapers are hurting financially and cutting their reporting staffs. But newspapers are also rightly concerned about their reporters' safety. The shooter who killed five staff members of the Capital Gazette in Annapolis, Md., had been angry for years, but he resorted to deadly violence only with Trump in office.
      At their best, newspapers and other news media keep the politicians honest and the government in check. The two young reporters Bob Woodward and Carl Bernstein are rightly given much of the credit in bringing Richard Nixon's corruption to light and eventually forcing him from office.
       Reporters detailing Trump's career have helped highlight the low points of his career. It is not "fake news" that Trump and his father were sued for racist rental practices in the 1970s; that Trump imitated his P.R. spokesman in calls to reporters; that Trump has been sued countless times for failing to pay employees or subcontractors. And it is not "fake news" that Trump has been enriching himself and his family as president by spending so much of the government's money at Trump properties or that many of his appointees have equally glaring conflicts of interest.
      Again, it cannot be stressed often enough that Trump has failed to point to specific instances of supposedly false coverage of himself, his family, or his administration. His followers who parrot his unsubstantiated critique are undermining the free press, one of the vital institutions of American democracy. "[A]ll too often," Klaas writes in his book, "Americans take this fundamental freedom for granted."

Sunday, August 12, 2018

Time for State Courts to Lead on Rights?

      With the Supreme Court on the verge of a solid conservative majority,  the time is ripe to reconsider the role of state courts in recognizing and protecting individual rights. Now comes an unlikely messenger: Jeffrey Sutton, a federal appeals court judge and a regular featured speaker for the conservative Federalist Society.
      In his new book 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford University Press), Sutton tells the untold story of the role that state courts and state constitutions have played through the years. He begins by noting that for the public and the legal community alike, all discussions of constitutional law typically begin and end with the Supreme Court of the United States. So too for litigators, he says: groups pressing new claims for constitutional rights file suits in federal courts, hardly ever in state courts.
      Sutton acknowledges that state courts have a generally deserved reputation for "relative underprotection of individual rights." But he notes that the rights now enshrined in the Bill of Rights originated in the state constitutions written between independence in 1776 and the ratification of the national Constitution in 1789. In addition, Sutton notes that at least seven state courts had assumed that power before the Framers met in Philadelphia in 1787.
      The modern history of constitutional law begins with the Warren Court's revolution in criminal procedure. The Court's series of decisions in the 1960s, such as Mapp, Gideon, and Miranda, required state criminal justice systems and courts to respect rather than ignore the rights specified in the Fourth, Fifth, and Sixth Amendments of the Bill of Rights.
      Sutton tells different stories from different periods in U.S. history. The National Court — his term for the one in Washington — has not always been a vanguard for individual rights. To the contrary, the Supreme Court at times has been either blind or slow in protecting individual rights or promoting equal justice. State courts have sometimes been better, sometimes not, but Sutton recites the twentieth century history of four legal issues where state courts helped provide a measure of justice after the Supreme Court's misdirection or default.
      In two of these stories, states got the issue right after the Supreme Court got it egregiously wrong. The first begins with the eugenics movement, the pseudoscientific theory for genetic superiority advanced by such progressives as Theodore Roosevelt and Woodrow Wilson early in the twentieth century. To his everlasting embarrassment, the great Supreme Court justice Oliver Wendell Holmes Jr. put his stamp of approval on the movement in the infamous decision, Buck v. Bell (1927), that upheld a Virginia law for involuntary sterilization of "feeble-minded" individuals.
      State legislatures more than state courts get credit for ending involuntary sterilizations by the 1980s, after more than 60,000 such procedures nationwide, according to Sutton's account. State legislatures repealed the sterilization laws and for good measure began writing the precursors of the federal law prohibiting discrimination against the disabled.
      The Supreme Court was again egregiously wrong in 1940 when it upheld a West Virginia law requiring public school students to salute the American flag while reciting the Pledge of Allegiance. The Court's decision in Minersville School District v. Gobitis (1940) is a black mark on the reputation of the great Supreme Court justice Felix Frankfurter, who flaunted his patriotism in rejecting the religious freedom plea by the Gobitas family, devout believers as Jehovah's Witnesses.
      The Court corrected itself  in the second of the Flag Salute Cases only three years later by upholding a similar religious freedom claim by Jehovah's Witnesses in West Virginia State Board of Education v. Barnette (1943). That story is told in constitutional law classes in law schools, but Sutton adds to the familiar account by noting that state courts had started to rule for Jehovah's Witnesses in such cases in the three-year interim.
      In the third of Sutton's stories, the Supreme Court blinked when urged in Wolf v. Colorado (1949) to enforce the Fourth Amendment by requiring states to exclude illegally obtained evidence. At the time, 16 states had their own exclusionary rules. The Court reversed itself in Mapp v. Ohio (1961); by then, nearly half the states had exclusionary rules.
      In the last of the stories, Sutton notes the Court's decision in San Antonio Independent School District v. Rodriguez (1973) that found no Equal Protection Clause requirement for equal school funding. In the decades since, state courts have moved in: ordering or catalyzing significant reforms to narrow funding disparities between rich school districts and the others.
      With his title, Sutton confounds the purpose listed in the Preamble to the Constitution: "to form a more perfect union." Better, he says, to have 51 imperfect solutions from state courts than one imperfect solution for the whole country from the National Court. The Supreme Court, he suggests, should stay its hand unless constitutional text and history are clear. State courts, he says, should be free to adapt individual rights to each state's particular history, culture, and geography.
      Sutton refuses to take sides on specific issues. So he does not offer to give up the Heller decision on the Second Amendment and leave gun rights up to individual states. On same-sex marriage, however, he views the interplay between state and federal courts as pointing, perhaps, to the right answer — despite his contrary position in the cases that actually reached the Supreme Court under the title Obergefell v. Hodges.
      Sutton emphasizes the role that Massachusetts' highest court played with its decision in Goodridge v. Dep't of Public Health (2003) to recognize marriage equality for same-sex couples under the Bay State's constitution. Without Goodridge, he says, there would have been no Obergefell. For rights advocates, Sutton suggests, look to the states: sage advice surely for those on the political and legal left as the Court prepares, it seems, to take a sharp turn to the right.

Sunday, August 5, 2018

On Kavanaugh, Republicans Neck-Deep in Hypocrisy

    Senate Republicans are neck-deep in political hypocrisy as they move toward confirmation hearings for Supreme Court nominee Brett Kavanaugh without a shred of bipartisanship or principle. With Republicans having lost any capacity for shame, the Republicans' prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama's last two Supreme Court nominations.
    Starting with Grassley, the Judiciary Committee chairman is pressing for Kavanaugh's confirmation hearing to be held in September well before the George W. Bush Presidential Library can provide even incomplete records of Kavanaugh's five years in the Bush White House. Now consider what Grassley had to say in regard to Elena Kagan's nomination to the Supreme Court on the Senate floor on June 15, 2010, as the committee was waiting for the Clinton Library to provide records about her years as a White House aide.
    Grassley, then in his thirtieth year as U.S. senator from Iowa, began his remarks by telling his colleagues that he had "always been of the opinion that the Senate needs to conduct a comprehensive and careful review of Supreme Court nominees [emphasis added]." For the Senate to fulfill its constitutional responsibility, Grassley elaborated, "we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a Justice."
    Republicans, then in a 59-41 minority in the Senate, fully explored the complete records on Kagan's work in the White House as domestic policy adviser, focusing on such issues as welfare reform, gun rights, and abortion. Grassley was one of 36 Republicans, along with the then-minority leader McConnell, who sized up Kagan based on that record as too liberal and voted against her confirmation, along with one Democrat.
    Democrats today want to examine all of Kavanaugh's work in the White House, including his three years as Bush's staff secretary that he himself describes as his "most formative" pre-judicial experience. They want to see the records to question Kavanaugh on the witness stand and then to use that evidence to try to substantiate, for any of the 51 Republicans willing to listen, their belief that Kavanaugh is too conservative and too partisan for a lifetime seat on the Supreme Court.
    Grassley started this contretemps by leaving Democrats behind as he asked the Bush library only for documents from Kavanaugh's two years in the White House counsel's office. All 10 Judiciary Committee Democrats submitted a separate letter last week asking for all of Kavanaugh's records, but Grassley dug in his heels. With the first batch of documents received from the National Archives, the Democratic leader Chuck Schumer of New York complained about the lack of transparency. "We don't know what they've held back and why," Schumer remarked.
    Grassley's full-speed-ahead approach is tied to the insistence by McConnell and other Republicans that Kavanaugh's confirmation needs to be completed in time for him to take the bench when the Supreme Court opens its 2018 term on Oct. 1, the traditional first Monday in October. The Republicans' concern about the need for a full nine-justice Court is laughably disingenuous after McConnell left the Court with a fourteen-month vacancy by refusing to consider Obama's nomination of federal appeals court judge Merrick Garland in 2016.
    McConnell now says he is willing to work on Kavanaugh's confirmation with Democrats on a bipartisan basis. The Senate's longest-serving Republican, Utah's Orrin Hatch, added to the comic relief last week by denouncing what he called Democrats' "dumbass" partisanship on Kavanaugh's nomination. "I'm tired of partisanship and frankly we didn't treat their candidates for these positions the way they're treating ours," Hatch said in a stakeout by reporters. The record, of course, is to the contrary: Republicans all but shut down any consideration of Obama's nominees for the federal bench in his final year in office.
    The liberal advocacy group People for the American Way aptly sized up the GOP's strategy in a statement by executive vice president Marge Baker. Republicans "are far more interested in rubber-stamping Donald Trump's nominees than in adequate vetting," Baker said. She challenged four Republican senators by name  Alaska's Lisa Murkowski, Arizona's Jeff Flake, Maine's Susan Collins, and Tennessee's Bob Corker — by asking whether they would "stand for the institutional integrity of the Senate." Stage direction: they do not move.
    Meanwhile, Kavanaugh's outside supporters are competing with the Senate Republicans for first place in disingenuousness. A television ad being run by the conservative Judicial Crisis Network says Kavanaugh "has earned respect from both sides of the aisle." It also includes a snippet from Kavanaugh's White House appearance, where he promised to keep "an open mind on every case." Lest any viewer be misled, however, the TV ad also shows what Kavanaugh's supporters are actually thinking: "a grand slam for conservatives."
    More than Neil Gorsuch's confirmation to succeed the late Antonin Scalia, Kavanaugh's nomination to succeed Anthony M. Kennedy could change the Supreme Court's balance of power for at least a decade or longer. "A solid conservative majority," Miguel Estrada promised to a Federalist Society luncheon last month. With so much at stake, Grassley's words eight years ago are well worth recalling. "We need to be certain," Grassley said then, "that the nominee will not come with an agenda to impose his or her personal political feelings and preferences on the bench."