Saturday, September 15, 2018

With Questions Unanswered, Reopen Kavanaugh Hearing

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

Sunday, September 9, 2018

On Kavanaugh, Some Answers Ring False

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