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. . . "