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.

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."








Saturday, July 28, 2018

On Trump, Evidence of Collusion, Obstruction Grows

      Michael Cohen, Donald Trump's longtime fixer of a lawyer, is prepared to tell investigators with special counsel Robert Mueller that Trump knew in advance of the infamous campaign-time meeting that his son Donald Trump Jr. held at Trump Tower with a Russian offering dirt on Hillary Clinton. If true, Cohen's account comes close to evidence of Trump's conscious collusion with Russia in a presidential campaign that the Russian government, President Putin has now confirmed, wanted Trump to win.
      The New York Times followed the next morning [July 27] with a deep dive into Mueller's reported interest in fashioning an obstruction of justice charge out of Trump's various tweets aimed, the theory goes, at intimidating potential witnesses or pressuring officials to tamp down the inquiry. Mueller has reportedly stated that he will abide by he Justice Department's official view that the president is not subject to indictment, but his office could outline the criminal charge in an eventual report to Congress.
      In sum, the suggestions of criminality in the Oval Office are getting stronger and stronger: perhaps even too strong for feckless Republican lawmakers to ignore. "No collusion" sounds more and more like Nixon's plaintive denial, "I am not a crook"  with about the same degree of truthfulness.
      One other potential development is also too ominous to ignore: the possibility that Trump's Supreme Court nominee, Brett Kavanaugh, with his inflated view of presidential prerogatives, could have the decisive vote if any challenge to the Trump investigations reaches the high court. Any wavering Senate Republicans ought to be at least as concerned about that issue as they might be about the fate of women's reproductive rights if Kavanaugh is confirmed.
      The latest wrinkle on the Trump Tower meeting prompted a new spate of denials from Trump as well as from his newly enlisted lawyer mouthpiece, Rudy Giuliani. The former New York City mayor was in full finger-wagging mode as he answered every question from CNN's Chris Cuomo not with evidence but with attacks on Cohen's credibilit. "He's been lying for weeks," Giuliani said of Cohen just two months after having vouched for Cohen's honesty. "I don't see how he has any credibility."
      Cohen is reported by CNN to be saying that he saw Junior tell Trump in advance about the June 2016 meeting at Trump Tower, also attended by son-in-law Jared Kushner. Junior and Jared met, along with then-campaign manager Paul Manafort, with a Russian lawyer, Natalia Veselnitskaya, who had asked for the meet-up to share negative information about the then-leading presidential contender Hillary Clinton.
      Trump has repeatedly denied any foreknowledge about the meeting &#151 notably, in an extended interview with the New York Times in June 2017. "No, nobody told me about it," Trump told the Times with elaborate, he-doth-protest-too-much emphasis on the meeting's unimportance. "I never even heard about it." The president tweeted a new denial on Friday, accusing Cohen of a leniency-seeking fabrication. "I did NOT know of the meeting with my son, Don jr,," Trump tweeted. "Sounds to me like someone is trying to make up stories in order to get himself out of an unrelated jam (Taxi cabs maybe?)."
      A swearing contest between Trump and Cohen would be like a ball game between two under .500 teams: one side has to win whatever their past records may be. In Cohen's case, there is no documented instance of lying, however shady his appearance. In Trump's case, on the other hand, Cohen himself has provided the documentary evidence of a recorded telephone call to show that Trump, contrary to his previous denials, knew of the $130,000 in hush money paid to Stormy Daniels to try to silence her campaign-time allegations of a long-running sexual affair with Trump.
      Trump's denials about the Trump Tower meeting rang false from the very start. Junior has neither the smarts nor the guts to call the meeting without consulting Dad; nor is he smart enough to have spared Dad any information in order to provide him plausible deniability.
      The denials were never plausible in the slightest, according to Bob Bauer, former White House counsel under President Clinton. "The notion that a foreign government promising to bring groundbreaking ‘dirt’ on  Hillary Clinton to the campaign would be invited for a meeting, without running the entire suggestion by Donald Trump, at least informing and most likely getting his explicit approval, was never believable for a moment," Bauer said in an article by Vanity Fair's Abigail Tracy.
      David Corn, Washington bureau chief of Mother Jones, underlined the significance of Cohen's account, naturally enough, on Twitter. "If Cohen's account is accurate, Trump knew from the start that Putin had a secret plot to hurt HRC & help him," Corn tweeted. "Yet he constantly denied Russia was behind the attack on the US election. That is, he knowingly lied to protect a foreign adversary attacking the US. That's betrayal."
      Watergate, let it be remembered, was a national nightmare that spanned a little over two years: prolonged unnecessarily by a power-hungry president who used treachery and deception to fend off official investigations. The system worked, the nation said with a sigh of relief as Richard Nixon left office. It remains to be seen whether the system can work this time too.

Sunday, July 22, 2018

Kavanaugh on Precedents: This Wolf Comes as a Wolf

      Supreme Court nominee Clarence Thomas presented himself to the Senate Judiciary Committee as the very model of judicial restraint, with no "agenda to change existing law." Barely a week after his confirmation, however, he voted in conference to overturn a prisoner rights precedent and followed later in the term as one of four justices voting to overrule the landmark abortion rights decision Roe v. Wade
      Brett Kavanaugh was a recent Yale Law School graduate at the time and developed an intensified hero worship for the then-associate justice William H. Rehnquist after Rehnquist' called for overruling Roe in his dissenting opinion in the 1992 decision, Planned Parenthood v. Casey. Kavanaugh recalled that experience in a Constitution Day speech that he delivered, as a federal appeals court judge, to the conservative American Enterprise Institute (AEI) in September 2017.
      As President Trump's nominee to succeed Justice Anthony M. Kennedy on the Supreme Court, Kavanaugh may try to follow the Thomas example in disclaiming any predisposition to start reversing prior rulings if confirmed. But if he does, there will be even less reason to believe him than there was to accept Thomas's bald-faced dissembling a quarter-century ago.
      Kavanaugh recalled with regret in the AEI speech that Rehnquist had failed in his attempt to overturn Roe, but he credited the late chief justice with having "righted the ship of constitutional jurisprudence" in other areas, such as unenumerated rights, church-state separation, and administrative law. By the time he gave the speech, Kavanaugh was at or near the top of Trump's list of possible Supreme Court nominees in the event of a new vacancy. So the speech must be regarded as an audition for the role that Kavanaugh has now been awarded.
      As presidential candidate, Trump promised to appoint justices who would overturn Roe v. Wade if confirmed. In his Senate Judiciary Committee questionnaire, posted online over the weekend, Kavanaugh replied with a simple "no" to the question of whether anyone in the White House or executive branch had asked him for an assurance on how he would vote on a given issue or in a given case. Even accepting the unelaborated denial, however, there simply was no need for the White House to ask since Kavanaugh has already gone on record with a list of three important precedents that he would overrule if confirmed.
      Speaking to the AEI in March 2016, Kavanaugh spoke eagerly of hoping to overturn the 1988 decision in Morrison v. Olson that upheld the independent counsel statute over Justice Antonin Scalia's lone but oft-quoted dissent. Kavanaugh said, in an oversimplification, that the decision had been "effectively overruled," but he followed by vowing, "I would put the final nail in."
      Scalia's criticism of the now-lapsed law as wrongly giving unchecked power to a special prosecutor aimed at officials in the executive branch carried the day a decade later when Congress decided not to renew the statute. So the case is not overruled but simply moot. Still, the discovery of the AEI speech seemed to some to have possible implications for Kavanaugh's views of special counsel Robert Mueller.
      The White House was concerned enough about this inside-baseball story to dispatch deputy press secretary Raj Shah to stress that Mueller was appointed under a Justice Department regulation that would be unaffected by overturning the 1988 precedent. Kavanaugh's disagreement with the decision does have present-day relevance, however.
      Kavanaugh cited Scalia's dissent approvingly when he voted in dissent from the D.C. Circuit's decision in January to uphold the structure that Congress enacted in establishing the Consumer Finance Protection Board (CFPB). Congress created the CFPB as an independent agency to be headed by a single director, protected from removal by the president except for cause.
      In dissent, Kavanaugh discovered a constitutional rule requiring independent regulatory agencies such as the Federal Trade Commission and others to be headed by multimember commissions, not by a single director. Republicans and business interests that opposed the CFPB are now pressing a constitutional challenge even as Trump's interim nominee as director is leading a retreat from the agency's mission,
      Kavanaugh is also on record as wanting to limit the decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984) that calls for judicial deference to administrative agencies when interpreting their powers under ambiguous congressional enactments. In a speech to the conservative Heritage Foundation, Kavanaugh outlined an approach that would effectively overrule the decision by requiring more explicit statutory language before upholding administrative agencies on "major" policy decisions. Conservative groups that have declared war against "the administrative state" are rallying around Kavanaugh as their champion for the battle.
      In his dissent in Morrison v. Olson, Scalia famously used the biblical metaphor of a "wolf in sheep's clothing" to warn of the law's dangers. Some issues come to the Court in "sheep's clothing," Scalia wrote. But, he concluded, "This wolf comes as a wolf."
      Kavanaugh may try on sheep's clothing when he comes before the Senate Judiciary Committee in hearings to be held in September. But senators ought not allow themselves to be fooled. This wolf comes as a wolf, with a public record of wanting to overturn judicial precedents. Whatever his answers at the hearing, two pro-choice Republicans senators, Alaska's Lisa Murkowski and Maine's Susan Collins, need to understand that Kavanaugh's confirmation quite likely could "put the final nail in" on Roe v. Wade. Rarely has so much turned on one or two votes on the floor of the U.S. Senate.

Sunday, July 15, 2018

Brett Kavanaugh's Situational Ethics

      In law, as in politics, where you stand may depend on where you sit. Brett Kavanaugh's on-and-off relationship with the U.S. presidency demonstrates that he is a creature of situational ethics, far from the judge of unbending moral principle as his admirers claim.
      Kavanaugh was a 30-something Republican lawyer on the make when he signed up with independent counsel Kenneth Starr for the impeachment of the popular-majority elected Democratic president Bill Clinton for lying about sex. His admirers emphasize that Kavanaugh argued for omitting from Starr's report the salacious details of Clinton's relationship with the White House intern Monica Lewinsky.
      Despite his sensibilities about sex, Kavanaugh had no political scruples about the nakedly partisan drive to impeach Clinton for a peccadillo and remove him from office. The Senate, it will be remembered, rejected the perjury charge on a 45-55 vote and deadlocked 50-50 on the obstruction count, far short of the two-thirds majority required for conviction.
      History now judges the Clinton impeachment as a mistake. A decade later, Kavanaugh himself appeared to have second thoughts, at least to some extent, as seen in a law review article published in 2008 now attracting close attention after his nomination to the Supreme Court.
      With George W. Bush's presidency about to end,, Kavanaugh reflected on his five years-plus in the Bush White House as staff secretary or associate counsel to call for shielding the president from legal investigations. "Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel," Kavanaugh wrote in the article published in the Minnesota Law Review.
      A decade earlier, the Supreme Court in Clinton v. Jones (1997) had refused to find the president constitutionally entitled to such immunity. Kavanaugh stopped short of disagreeing with the Court, but he admitted that his views back then, "in retrospect," were "a mistake." In a sentence now startlingly prescient, Kavanaugh concluded, "A President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President."
      By the time of the law review article, Kavanaugh was a judge on the U.S. Circuit Court of Appeals for the District of Columbia, appointed to the bench at the young age of 41 by Bush, a fellow Yale alumnus. The Republican-controlled Senate confirmed his nomination on a 57-36 vote in spring 2006 after Democrats had delayed the confirmation for three years by citing his partisan record in the Clinton impeachment and the Bush White House.
      Kavanaugh complained in the law review article about the confirmation process and called for ensuring "prompt Senate votes on executive and judicial nominations." With a Democrat in the White House eight years later, however, Kavanaugh appeared to have forgotten his previous recommendation. He watched from the sidelines, in public silence, as the Republican-controlled Senate refused to consider President Obama's nomination of Kavanaugh's D.C. Circuit colleague, Merrick Garland, to the Supreme Court.
      In the law review article, Kavanaugh had called for the Senate to adopt a rule requiring a vote on "every judicial nominee" within 180 days of the nomination. The Senate's tactic drew no public objection from Kavanaugh's chambers.
      President Trump passed over Kavanaugh's pre-judicial record in announcing his decision to nominate Kavanaugh for the vacancy created by Justice Anthony M. Kennedy's retirement. His many supporters mostly follow suit: they see in his 12 years on the federal bench the very model of a judge's judge. They also profess no concern whatsoever that Kavanaugh will be less than independent of his presidential benefactor if confirmed.
      The question is hardly academic, with Trump under investigation at the very moment. "I don’t know of any justice who has staked out as strong a position on presidential immunity even from questioning as Judge Kavanaugh has,” Walter Dellinger, a former acting U.S. solicitor general in the Clinton administration, remarked to The New York Times.
      Michael Gerson, a colleague of Kavanaugh's as a Bush speechwriter and now a syndicated columnist, pooh-poohed any worries about Kavanaugh's independence. Kavanaugh, Gerson wrote, knows that the Court itself may have to impose restraints on Trump's "lawlessness and bullying" and "has the character and patriotism to act upon it."
      Kavanaugh showed no such character in accepting the nomination with Trump at his side. Instead, he fawned over the president, gratuitously and as the worst kind of toady. "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” Kavanaugh said. Trump surely lapped it up, but the assertion is palpably false and surely beyond Kavanaugh's personal knowledge besides.
      Moments later, Kavanaugh also complimented Trump by saying that he had the opportunity to view the president's "respect for the judiciary." Apparently, Kavanaugh paid no attention when candidate Trump accused the judge in the Trump University case of being biased against him because of the judge's Mexican heritage. And apparently Kavanaugh also missed the president's various criticisms of the several federal judges who ruled against his travel ban.
      Those are not the words of a justice prepared to stand up against Trump's megalomaniacal view of his powers as president. Critics naturally view Kavanaugh not as the strong-backboned jurist that his former colleague Gerson believes him to be, but as a likely servile apologist for the president in any potential legal challenge to his powers.

Sunday, July 8, 2018

At Supreme Court, Weaponizing the First Amendment

      No aspect of American exceptionalism deserves patriotic celebration more than our beloved First Amendment with its open-ended promise of freedom of speech, freedom of press, and freedom of religion. Our birthright as Americans includes the freedom to say what we what, think what we want, and believe what we want without needing permission from the government.
      In the 90 years since the Supreme Court first incorporated the First Amendment against state and local governments, the Court has enforced its provisions in the service of free expression from sea to shining sea. But the Supreme Court ended its 2017 term with a pair of decisions that allowed groups with no real interest in free speech to turn the First Amendment into a weapon against democratically enacted policies protecting union rights in one instance and reproductive rights in the other.
      The Court not only entertained but validated phony "compelled speech" claims in the two decisions: Janus v. AFSCME and NIFLA v. Becerra.. In Janus, an Illinois government employee, Mark Janus, wanted to get out of paying a fair share of AFSCME's costs in representing him and other non-union members in collective bargaining and grievance procedures, as allowed under Illinois law. In NIFLA, the national trade association representing anti-abortion crisis pregnancy centers wanted to get  two centers in San Diego County out from under a California law that required them to give pregnant women accurate information about the availability of the full range of pregnancy-related counseling and services from state agencies.
      Compelled speech claims have an honored history at the Supreme Court. Marie and Gathie Barnett won a place in U.S. Reports after they refused, as Jehovah's Witnesses, to pledge allegiance to the U.S. flag while elementary school students in West Virginia during World War II. Speaking for the 6-3 majority in West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson famously and quotably declared that in the United States "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
      The majority opinions in the two new decisions pay obeisance to this principle, but it is window dressing for policy-driven results in both. The conservative bloc's true agenda, is palpable in the anti-union subtext in Justice Samuel Alito's opinion in Janus and in Justice Clarence Thomas's relative indifference in NIFLA toward pregnant women's interests in full information about their medical and legal options.
      The groups supporting Janus made no secret of their true intention of trying to weaken public sector unions and weaken their influence in election campaigns. In one fundraising letter, the anti-union Freedom Foundation promised that a ruling for Janus "should take the government unions out of the game for good."
      In NIFLA, the conservative justices' own policy preference was evident in Thomas's effort to reconcile the new decision with a seemingly contradictory ruling that was part of Planned Parenthood v. Casey (1992). Back then, the Court upheld a Pennsylvania law requiring doctors to inform a woman before an abortion about supposed health risks from the procedure and to give the woman information about the fetus: no compelled-speech problem found. Thomas was part of the majority on that part of the ruling, but a quarter-century later he drew the line at requiring the pregnancy centers to post a simple sign that low-cost public programs were available.
      Thomas explained that the Pennsylvania law was about informed consent before a medical procedure and the California law merely a plug for the state's programs. But as Justice Stephen G. Breyer explained in his dissent, pregnancy and childbirth are medical procedures: the California law, no less than the upheld Pennsylvania provision, was aimed at making sure pregnant women had complete information.
      Breyer aptly warned that the decision threatened other consumer protection provisions: as one example, he cited a California law requiring hospitals to inform new parents about child safety seats. And just two days later the Court told the federal appeals court in California that NIFLA might be grounds for striking down a local ordinance requiring cell phone providers to warn users that keeping a cell phone in a pocket might result in radiation exposure in excess of federal guidelines.
      In , Alito dissembled just as Thomas did by failing to make clear that the agency fees Janus and others were required to pay could not be used to pay for the union's political advocacy outside the collective bargaining context. As Justice Elena Kagan explained in dissent, "no part of those fees could go to any of the union's political or ideological activities." 
      The fallout from Janus will be broad and direct. The ruling invalidates laws in 22 states that allow public sector unions to charge agency fees to non-members. The unions in those states will take a financial hit, just as the anti-union funders for Janus wanted, and the hundreds of contracts negotiated with agency fees for non-members included presumably reopened.
      The 5-4 splits in the two decisions speak less to constitutional law than to raw politics. In her dissent in Janus, Kagan rightly complained that the majority was "turning the First Amendment into a sword and using it against workaday economic and regulatory policy." The First Amendment, she said, "was meant for better things."

Sunday, July 1, 2018

Supreme Court's Willful Blindness on Travel Ban

      None are so blind as those who refuse to see. That well-worn adage applies perfectly to the Supreme Court's willfully blind decision to uphold President Trump's travel ban despite its evident anti-Muslim animus and its transparently pretextual national security rationale.
      To be clear, Chief Justice John G. Roberts Jr. recited much of the evidence of Trump's anti-Muslim prejudice before getting his four Republican-appointed conservatives to go along with upholding Trump's Proclamation 9645, his third iteration of travel restrictions aimed mostly at Muslim-majority countries. Trump issued that proclamation in September 2017 after federal appeals courts had struck down his first two executive orders — so-called EO1 and EO2 — as unconstitutional or illegal or both.
     Trump claimed complete vindication within minutes after Roberts announced the Court's decision in Trump v. Hawaii at the end of Tuesday's court session [June 26]. But his ears should have been burning. Roberts disclaimed any role for the Court to "denounce" Trump's statements, but he recited what any reasonable observer would have regarded as a damning summary.
      Speaking for two of the four Democratic-appointed dissenters, Justice Sonia Sotomayor showed no such reticence in detailing Trump's "deeply offensive" comments dating from his September 2016 campaign promise of a "total and complete shutdown of Muslims entering the United States . . . ." From the bench, Sotomayor continued with details that spanned six pages in her written opinion. She ended with Trump's retweet in November 2017 of virulently anti-Muslim videos posted by a British political party with an explicitly Islamophobic platform.
      Sotomayor, joined by Ruth Bader Ginsburg but not the other two liberal justices, acknowledged Roberts' point that the issue for the Court was not whether to denounce those statements. The "dispositive" issue, she explained, was whether a reasonable observer would conclude from all this information that the proclamation's "primary purpose" was "to disfavor Islam and its adherents by excluding them from the country." 
      Surely, Sotomayor concluded in a tongue-lashing like none other ever delivered from the Supreme Court, the answer to that legal question was yes. Trump, she noted "has never disavowed any of his prior statements about Islam," despite "several opportunities to do so." And so, she went on, the proclamation cannot be upheld against the charge of Constitution-violative religious animus by the putative national security concerns. The "unassailable fact," she explained, is that the proclamation "is contaminated by impermissible discriminatory animus against Islam and its followers."
      For Roberts and the other Trump-excusing justices, the issue was not the First Amendment's protection of religious freedom but Article II's grant of executive power. Other presidents had imposed country-specific travel bans, Roberts noted: Reaagan on Cuba, Carter on Iran. The Court's decision, he noted, must avoid shackling some future president from acting on a real national security concern. But for Sotomayor that was the point: a future president must be prevented from acting on unconstitutional animus, just as the Court in Korematsu should have prevented FDR from interning Japanese citizens on trumped-up fears of national security.
      A note about the religious liberty at stake: not the religious freedom of the beyond-our-borders traveler or asylum applicant, but the religious freedom of U.S. residents and citizens to interact with friends, relatives, colleagues, and others without governmental discrimination. Lost in the Court's decision was the University of Hawaii's ability to meet with scholars from the affected countries, a U.S. citizen's ability to welcome his mother-in-law from another of the affected countries, and — in the other case, from the Fourth Circuit — the International Refugee Assistance Project's ability to aid asylum applicants from the affected countries.
      Sotomayor rightly dismissed the administration's attempts to find legal justification for what originated as and continued as an anti-Muslim travel ban. The conservative majority swallowed the administration's line that a worldwide interagency review of travel security in other countries justified the inclusion of the countries that remained from EO1 and those added since. As Sotomayor noted, this review was a scant seventeen pages in length. 
      In a separate opinion, Justice Stephen G. Breyer, joined by his pragmatic liberal colleague Elena Kagan, voiced disbelief about another of the administration's claims in defending the travel ban. At oral argument, Solicitor General Noel Francisco emphasized that the proclamation included waiver provisions that he assured the Court would be applied in generous good faith. 
      Wrong, Breyer noted, in his opinion issued two months later. The number of waiver applicants approved so far is a minuscule percentage of the total: 430 out of more than 6,500. In addition, he noted, the administration has yet to issue formal guidance for consular officers to follow in exercising their supposed discretion to grant waivers.
      Breyer suggested a remand rather than a ruling so that lower federal courts could examine the actual implementation of the proclamation. The conservatives had no interest, but the opportunity may yet arise: a Muslim advocacy group filed a federal court lawsuit on Friday [June 29] challenging the proclamation on a facts-on-the-ground basis. 
      Still, Sotomayor was surely right with her final words. "Our Constitution demands, and the country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments," she wrote. "[T]he Court's decision today has failed in that respect. . . "