Sunday, October 14, 2018

In Death Penalty Cases, Race Still Matters

      Race has always played an imortant role in capital punishment in the United States and still does, according to contemporary evidence from death penalty challenges in two states. The two studies, one from Oklahoma and the other from Washington, both show that black defendants convicted of killing white victims are more than twice as likely to be sentenced to death as white defendants convicted of killing white victims.
      The Supreme Court was presented similar evidence three decades ago, but refused in McCleskey v. Kemp (1987) to take the logical Equal Protection Clause step in a death row challenge by a Georgia inmate. The 5-4 ruling, criticized by legal scholars as one of the Court's worst twentieth-century decisions, discounted a statistical examination of 2,500 murder cases in Georgia as showing no evidence of racial bias specifically in McCleskey's case. 
      In a unanimous decision this week, however, the Washington Supreme Court relied on statistics from a much smaller study to strike down the state's death penalty law on the ground that it was "imposed in an arbitrary and racially biased manner." The ruling  in State v. Gregory [Oct. 11] set aside the death sentence imposed on an African American defendant, Allen Eugene Gregory, for the home-invasion rape-robbery-murder of a white woman in 1996.
      In her opinion for the court, Chief Justice Mary Fairhurst cited statistical evidence from 1981 through 2014 that black defendants were between 3.5 and 4.6 times as likely to be sentenced to death after capital sentencing hearings as non-black defendants after other variables were taken into account. The authors of the study found no more than an 11 percent chance that what they called "the observed association between race and the death penalty" could have resulted from random chance rather than true association.
      In Oklahoma, the state's Court of Criminal Appeals refused to consider a similar statistical study as part of its decision in August 2017 to reject a similar challenge by an African American death row inmate on procedural grounds. Tremane Wood had been sentenced to death in 2004 after his conviction in a racially charged trial of killing a white man who had set up a New Year's Eve sexual assignation with the mother of Wood's son. 
      Wood relied in his third post-conviction challenge on a study, published in April 2017, that showed capital defendants in Oklahoma cases with white victims more than twice as likely to be sentenced to death as defendants in cases with non-white victims. The Oklahoma court had already refused to consider the study in an earlier case and devoted less than three full pages to reject Wood's plea.  
      Wood's case now gives the Supreme Court a chance for a do-over on McCleskey. In a petition for certiorari filed in November 2017, Wood's lawyers argued that the study showed that Oklahoma juries are "significantly more outraged when white lives are lost than when nonwhite lives are forfeited." That kind of "race-based discrepancy," the lawyers argued, "is repugnant to both modern societal mores and to the United States Constitution."
      In their response, the state's lawyers went beyond arguing procedural default on Wood's part to attack the study in their words as "fatally flawed." The study was incomplete, the state's lawyers argued, because it did not take into account all of eight of the aggravating circumstances listed in the state's death penalty law. The justices have shown no interest so far: the case, Wood v. Oklahoma, 17-6801, was listed for the justices' conference on March 2 and has been rescheduled 15 times since then with no action yet.
      With the decision in Gregory, Washington became the twentieth state to eliminate capital punishment. The state was already observing a moratorium on executions imposed by Gov. Jay Inslee in 2014 and had been a laggard in capital punishment even earlier, with only five executions since 1987. The state's death row housed only eight inmates, whose sentences were reduced to life imprisonment under the court's ruling. 
      In contrast to Washington, Oklahoma has been one of the leading death penalty states, with 112 executions carried out since 1990 — the third largest number of any state after Texas and Virginia. Forty-nine inmates now await execution, but the state imposed a moratorium in 2015 a year after a widely criticized botched lethal injection execution. The convicted murderer Clayton Lockett was pronounced dead of a heart attack 43 minutes after the execution began only after visibly and audibly struggling and writhing in what his lawyer described as akin to torture.
      Lockett was administered a sedative, midazolam, that has been criticized in successive Eighth Amendment challenges as failing to render an inmate unconscious during the final stages of a lethal injection execution. The Supreme Court refused to disallow the procedure, however, in an Oklahoma case, Glossip v. Gross (2015),  that followed Lockett's execution. 
      Four terms later, the Court is still not moved to step in to ensure humane executions. The justices rejected a similar challenge to the use of midazolam in a decision last week [Oct. 11] to deny a stay of execution sought by a Tennessee inmate, Edmund Zagorski. In a dissent, Justice Sonia Sotomayor, joined by Justice Stephen G. Breyer, said the hands-off decision amounted to "complicity in state-sponsored brutality." Sadly, the inaction in Wood's case implicates the justices as well in the racial bias all too evident in the United States' flawed death penalty machinery.

Sunday, October 7, 2018

No Mandate for Supreme Court to Turn to Right

      The Supreme Court that takes the bench on Tuesday [Oct. 9] will have the weakest political mandate of any group of justices in U.S. history. But with a conservative majority solidified by the razor-thin confirmation of Brett Kavanaugh, the Court is poised to make fundamental changes in American law more rapidly than at any previous time in the Court’s history and to test public confidence in the Court's legitimacy and impartiality.
      With Kavanaugh’s confirmation, the Court now includes four justices appointed by Republican presidents who gained the White House despite losing the popular vote: two named by President George W. Bush, after his popular-vote majority re-election in 2004, and now two chosen by Donald Trump. With no popular mandate, Trump in his two appointments and Bush in one followed the Republican model set by Richard Nixon in the 1960s by pushing the partisan envelope on Supreme Court appointments as far as the political system would tolerate.
      Kavanaugh joins three other justices who won Senate confirmation in narrow roll-call votes and, according to one political scientist’s calculations, from senators representing a minority of American voters. The Court may have been intended in the constitutional system to play a countermajoritarian role to some extent, but the Constitution envisions that the justices with that power be nominated and confirmed by political branches responsive to public sentiment.
      Here are the figures, according to Trinity College political scientist Kevin McMahon, from his article “Will the Supreme Court Still 'Seldom Stray Very Far'?: Regime Politics in a Polarized America,” in Chicago-Kent Law Review:
      * Clarence Thomas, nominated by the popular vote-majority president George H.W. Bush and confirmed by a Democratic-majority Senate by a 52-48 vote. Those 52 senators, including 11 Democrats from southern states with substantial African-American constituencies, had been elected with 43.2 million votes; senators voting no had been elected with 46.1 million votes (48.33 percent to 51.67 percent).
      * Samuel A. Alito Jr., nominated by George W. Bush in his second term and confirmed by a 58-42 Senate vote. Senators voting to confirm had been elected with 56.3 million votes; senators voting no had been elected with 61.1 million votes (47.95 percent to 52.05 percent).
      * Neil M. Gorsuch, nominated by Trump after his 2.9 million popular vote loss to Hillary Clinton and confirmed by a Republican-majority Senate in a 54-45 vote. In Gorsuch's case, senators voting against his confirmation had a substantial popular-vote edge over those supporting his confirmation: 73.4 million to 54.1 million (57.6 percent to 42.4 percent).
      In advance of Saturday's historically narrow confirmation [Oct. 6], the Washington Post’s Philip Bump provided a similar analysisby adding up the total populations represented by senators planning to vote for and by senators planning to vote against Kavanaugh. Senators voting no represented a majority of Americans: 55.8 percent, compared to the 44.2 percent of the populace represented by Kavanaugh's supporters.
      Kavanaugh has an added distinction, unlikely to be noted at his retirement ceremony several decades in the future. Nominated by a historically unpopular president, Kavanaugh is the most unpopular Supreme Court nominee in the history of modern polling. Bump cited an NPR-PBS NewsHour-Marist poll taken days earlier that found 40 percent of respondents supporting the nomination compared to 52 percent opposed.
      A CNN poll taken in August found a narrow plurality opposed to his nomination: 37 percent in favor compared to 40 percent opposed. Kavanaugh was the only justice to be under water shortly after his selection; he even fared unfavorably in comparison to the unsuccessful nominees Robert Bork and Harriet Miers, who both had positive ratings at comparable points in the process. Merrrick Garland, President Obama’s obstructed Supreme Court nominee in 2016, had a substantial positive rating: 52 percent in favor, 33 percent opposed.
      Among the Republican senators supporting Kavanaugh, Texas’s personally repellent Ted Cruz coupled his endorsement with a recycled denunciation of policy decisions being made by “unelected judges.” Cruz cited no examples, but he almost certainly was not thinking of the various Roberts Court decisions gutting campaign finance laws, such as Citizens United, or any of the pro-business, anti-consumer decisions crafted by 5-4 majorities.
      As successor to the generally conservative Anthony M. Kennedy, Kavanaugh will slide comfortably into lineups such as those; he signaled his pro-business views and his doubts about campaign finance laws in 12 years on the D.C. Circuit. In contrast to Kennedy, however, he may provide the needed fifth vote either to overrule or sharply restrict Roe v. Wade despite calling it an “important” precedent. Based on his vote to strike down a ban on assault weapons, Kavanaugh is also a likely vote for expanding Second Amendment rights beyond the narrow holding in Heller 10 years ago.
      Decisions along those lines by five unelected justices would be in defiance of public sentiment. The most recent poll indicates that three-fourths of Americans oppose overruling Roe v. Wade. On assault weapons, 70 percent of those polled favor stricter laws. And several polls indicate public concern about the Roberts Court’s pro-business orientation. With public confidence in the Court already slipping, Kavanaugh’s ascension as the Court’s fourth minority justice may embolden an activist conservative majority to put public confidence at greater risk unless Chief Justice John G. Roberts Jr. keeps them in check.

Sunday, September 30, 2018

Liar, Liar: Lying to Get on the Supreme Court

      William Rehnquist all but certainly lied under oath in his confirmation hearing in 1971 to become a Supreme Court justice. Clarence Thomas quite likely lied under oath in the same setting two decades later. And Brett Kavanaugh lied, repeatedly and blatantly, to bolster his claim to a Supreme Court seat as the most unpopular nominee in modern times after his selection by the most unpopular president ever in U.S. history.
      Each of the would-be justices lied to conceal views or conduct from his past considered socially or politically acceptable at the time but completely unacceptable decades later. And for Rehnquist and Thomas, the lies accurately foretold positions that they would later take in votes and opinions in their later Supreme Court careers.
      * Rehnquist lied to obscure his defense of racial segregation as a Supreme Court law clerk whileBrown v. Board of Education was before the court and racial segregation not yet viewed as a legal and moral wrong.
      * Thomas lied to deny Anita Hill's accusations of sexual harassment from a time before the conduct was recognized as a civil rights violation.
      * Kavanaugh lied to explain away the self-portrait he drew in his Georgetown Prep yearbook as a beer-chugging frat boy before lighthearted machismo was recognized as a toxic social disease.
      Rehnquist's memo for Justice Robert H. Jackson in defense of racial segregation was a focal point of his nomination as associate justice in 1971 and again as chief justice in 1986. He insisted that he wrote the memo at Jackson's request to frame the argument for legal segregation as well as possible. Other Jackson law clerks said, however, that the justice never asked for memos of that sort. And some of Rehnquist's contemporaries recalled that he defended racial segregation in out-of-chambers conversations. As a justice, Rehnquist consistently voted to limit federal courts' power to force school districts to dismantle racially separate schools.
      Thomas denied Hill's many specific memories of his vulgar language and leering behavior when she worked as his assistant when he was chairman of the Equal Employment Opportunity Commission (EEOC). His indignant denial of what he called a "high-tech lynching" devolved into a "he-said, she-said" swearing match when the then-Judiciary Committee chairman Joe Biden declined to call other female witnesses whose accounts would have tended to corroborate Hill's account. As a justice, Thomas has been a disaster for women's rights: he has voted not only to eliminate reproductive rights but also to limit remedies for sex discrimination in the workplace.
      Kavanaugh's various falsehoods and evasions are so numerous that the compilation in The New York Times filled a broadsheet page in the newspaper's print edition on Saturday [Sept. 29]. Some of those misrepresentations were on matters of political significance from his days as a Bush White House aide that came up in 2004 when the Senate considered his nomination to the D.C. Circuit Court of Appeals and that might have sunk his confirmation at the time.
      Under intense questioning from the Vermont Democratic senator Patrick Leahy, Kavanaugh lied about the issues again this month in the initial phase of his Supreme Court confirmation hearing [Sept. 5-6]. He lied to deflect responsibility for accepting and using political intelligence about pending judicial nominations that a Republican Senate staffer had stolen from Democrats' computer and forwarded to Kavanaugh with the subject line "spying." He also lied to minimize his involvement with one of Bush's most controversial judicial appointments, Charles Pickering's elevation from a federal district court to the Fifth U.S. Circuit Court of Appeals.
      The wrenching day-long hearing on Wednesday [Sept. 27] that began with Christine Blasey Ford's account of a sexual assault by Kavanaugh when both were teenagers in the Washington, D.C., suburbs in summer 1982 ended in a draw of sorts with Kavanaugh's indignant denial. Ford gave her account with calm poise and "100 percent" certainty, but without specific details, such as time and place. Kavanaugh denied the alleged assault, also with "100 percent" certainty, as a political smear, supposedly orchestrated by Democrats and perhaps intended as "revenge on behalf of the Clintons."
      Under questioning, Kavanaugh lied implausibly to explain away the image he drew for himself in Georgetown Prep's 1983 yearbook. He laid his record of teenaged vomiting as a member of the "Ralph" club not to beer drinking, but to a weak stomach for spicy foods. He claimed, wrongly, that his reference to "boof[ing]" was about flatulence when the term actually denotes anal sex or use of drugs. And he insisted that his membership in the "Renate Alumnius [sic] club" was a sign of affection toward a co-ed from a nearby girls' school rather than, as classmates told the Times, an insinuation of sexual conquest.
      These were, as one commentator remarked on Twitter, "casual" and "trivial" lies. But the lies brought to mind the jury instruction familiar to longtime courthouse reporters: jurors who disbelieve any part of a witness's testimony are free to disregard the testimony in its entirety. Thus, in the "he-said, she-said" swearing contest between Ford and Kavanaugh, Ford wins on points.
      A jury of Kavanaugh's peers could discount his denial altogether, even apart from the credibility-damaging contrast between Ford's poise and Kavanaugh's loss of control. In a hypothetical criminal trial, the prosecutor would ask jurors in final argument to consider whether Kavanaugh would lie to get a prestigious lifetime job with a six-figure salary and summers off. The obvious answer: of course, he would. And he did.

Sunday, September 23, 2018

With Credibility Blown, Kavanaugh Should Withdraw

      As Maine goes, so goes the nation, according to the well-established political maxim. So it was more than a local story last week [Sept. 19] when the Pine Tree State's largest newspaper, the Portland Press Herald, called on federal judge Brett Kavanaugh to withdraw his nomination to the Supreme Court as the state's moderate Republican senator, Susan Collins, remained undecided about her potentially decisive vote.
      The newspaper's editorial board saw no need to wait for what is shaping up as a truncated hearing on the accusation by the California research psychologist Christine Blasey Ford that Kavanaugh sexually assaulted her when they were teenaged students at nearby private schools in the Washington, D.C., suburbs. Instead, the editorial opined that Kavanaugh's credibility was already "blown" by his "evasions" during his two days of contentious questioning by a politically divided Senate Judiciary Committee.
      The editorial found Kavanaugh's promises to be "an impartial arbitrator" if confirmed hard to swallow in light of the fervent support of "right-wing activists at the Federalist Society" and "the far-right Judicial Crisis Network" with its dark-money funded TV advertising campaign. Kavanaugh seemed sincere, the editorial noted, but nobody believed him. "Not telling the whole truth about his politics makes his sexual assault denial harder to believe," the editorialists' headline-writer aptly explained.
      Through the week, the committee's chairman, Iowa's Charles Grassley, stubbornly resisted requests from Ford's lawyers, echoed by the committee's Democrats, that the FBI investigate her allegation that Kavanaugh, two years her senior, forced himself upon her in a drunken bedroom assault at a house party. In Ford's telling, Kavanaugh attempted to undress her and covered her mouth to muffle her screams as Kavanaugh's bad-boy schoolmate, Mark Judge, egged him on and eventually joined in.
      Without an FBI investigation, Ford's lawyers argued, a hearing with only Ford and Kavanaugh as witnesses would inevitably operate to her disadvantage by pitting a private citizen's uninvestigated accusation against the sworn testimony of a veteran federal appellate judge. President Trump could have asked the FBI to reopen its standard background investigation and document the available corroboration, such as Ford's 2012 session with a therapist. But instead Trump had his White House staff help Kavanaugh prepare for the hearing in two days of "murder boards" with questions he could expect to face.
      With the FBI on the sidelines, the Washington Post and multiple other news organizations stepped in to add important factual context that made Ford's accusation believable and Kavanaugh's categorical denial less so. Whatever his academic accomplishments at Georgetown Preparatory School may have been, Kavanaugh was shown in detailed stories to have been part of a hard-drinking, party-loving crowd with retrograde views about relations between the sexes. Screen saves from Prep's yearbook showed Kavanaugh bragging about underage drinking and his friend Judge recycling a Noel Coward quote that women should be "struck . . . like gongs."
      In his testimony, Kavanaugh quoted Georgetown Prep's motto, "Men for others." In a speech at Catholic University's law school in 2015, however, Kavanaugh told his audience of a different motto that put the school in a less favorable light. "What happens at Georgetown Prep stays at Georgetown Prep," Kavanaugh recalled. "That's been a good thing for all of us, I think," he added.
      Apart from Kavanaugh's partisans, multiple analysts and commentators saw indicia of credibility in Ford's accusation. Trump broke his Twitter silence eventually by questioning Ford's failure to report the episode until her summertime letter to her local congresswoman. Trump's complaint prompted a new Twitter hashtag,  #WhyIDidntReport, with dozens of explanations from sexual assault survivors about the personal embarrassment and real-world difficulties of reporting an offense.
      Kavanaugh painted himself in his testimony as a dedicated feminist, proud of hiring women for a majority of his law clerk slots over the past 12 years. But that boast was tarnished when the Yale law professor Amy Chua, responsible for placing 10 students in Kavanaugh's chambers, was reported to have advised female law students that Kavanaugh "likes a certain look" in his female applicants. Ironically, Judicial Crisis Network found a Barbie Doll-lookalike acquaintance of Kavanaugh's to feature in a TV ad that praised her longtime friend as, among other qualities, "empathetic."
      Kavanaugh's judicial opinions, however, show him to be anything but empathetic. He did what he could to prevent a Mexican teenager, impregnated by a rapist and detained by immigration authorities, from having an abortion. That contrast between political spin and Kavanaugh's actual record is only one of the many examples of dissembling from Kavanaugh, the White House, and the far-right lobbying machine.
      Next week's hearing could be another example: a phony show aimed at discrediting Ford more than finding the truth. The rush to judgment, arbitrary from the outset, now has more urgency for Republicans after an NBC-Wall Street Journal poll registered a 38 percent to 34 percent plurality of Americans opposed to Kavanaugh's confirmation, making him the least popular Supreme Court nominee in 30 years of polling.
      Even before that poll, the Press Herald saw Kavanaugh's possible confirmation as essentially anti-democratic. "An unpopular president and a two-vote advantage in the Senate is not a mandate for radical change on the Supreme Court," the newspaper concluded. "Republicans should convince Kavanaugh to withdraw, and start working with their Democratic colleagues on a list of nominees who the American people could really trust."

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.
* * *
   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 girls' basketball 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.