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Monday, December 09, 2019

Tag: brett kavanaugh

The 'Deep Roots' Of Justice Alito's Illegitimate Opinion

Not so long ago, the Supreme Court possessed sufficient stature that nobody — least of all its own justices — felt obliged to reassure the public of its legitimacy. Neither Chief Justice John Roberts nor his colleagues had to promise that the court reaches its decisions based on law, not partisanship or ideology. Today they regularly utter such cheerful bromides — and the more they talk, the less anyone believes them.

The highest court's credibility has trended downward for the past two decades, ever since a Republican majority handed the 2000 presidential election to George W. Bush, with consequences that most Americans agree were disastrous. That steep slide will seem gentle if and when, as now appears inevitable, the conservative majority's draft opinion to overturn Roe v. Wade becomes law.

Stunningly ill-advised and contrary to constitutional order, that decision will starkly highlight the crisis of the court — and demonstrate once more how Republicans have gnawed like termites at the lawful foundation of democracy.

The decision's illegitimate foundations lie in the very construction of the court majority that will make it possible. Justice Samuel Alito, who auditioned for his appointment as a relentless foe of abortion, is only on the court thanks to the partisan outcome of Bush v. Gore — which awarded the presidency to a man who had decidedly lost the popular vote and probably lost the Electoral College as well. The three Trump justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — likewise gained their appointments via an election that saw the popular-vote loser elevated to power.

Far worse, the conservative majority exists only because Senate Republicans denied an appointment to Barack Obama on spurious grounds that they abandoned at the end of Trump's presidency. By that measure, neither Gorsuch nor Barrett belongs in their seats. When Mitch McConnell whipped those swindles through the Senate, he irrevocably stained the justices who benefited from them. (The McConnell rule is simple: When a Supreme Court vacancy arises, it's always too late for a Democratic president to appoint, but never too late for a Republican.)

Next came the deception perpetrated by the Trump justices during their confirmations, when asked about how they would handle this vital issue. At least two of them clearly stated in public hearings — and privately told senators who supported them — that Roe was settled law, validated many times over the past five decades. Sens. Lisa Murkowski and Susan Collins both now profess astonishment that these men misled them during the confirmation process.

The same lie was reiterated in conservative media. In July 2018, The Wall Street Journal, that repository of reactionary falsehood, published an editorial mocking the "abortion scare campaign" that accompanied the appointment of Republican justices. According to the Journal editorial board, nobody needed ever to fear for Roe: "The reason is the power of stare decisis, or precedent, and how conservatives view the role of the Court in supporting the credibility of the law." (Be warned: That editorial board now breezily insists that vacating Roe won't endanger same-sex marriage, contraception or any of the other "unenumerated" privacy rights whose demise Alito strongly hinted in his opinion.)

Yet there is another stigma of illegitimacy on this act that overshadows all the rest: the almost mindless misogyny that is, to use a favorite Alito phrase, so "deeply rooted" in the court's ongoing repeal of abortion rights. The draft opinion exposed Alito's profound sexist contempt in a way that would be comical if not for the fact that it has cost so many women's lives and will continue to destroy them.

To justify his assertion that abortion is an affront to Western legal traditions, Alito went deep indeed. He cited the views of a 17th-century British jurist named Edward Coke, who declared abortion to be a heinous crime. As Lawrence O'Donnell noted on MSNBC, that same Coke believed some women (and a few men) were witches and should be torturously put to death for assisting the devil. As an additional legal authority, Alito also cited several times Sir Matthew Hale, another 17th-century British judge who oversaw the execution of alleged witches — and came up with the stunning theory that a man by definition could not rape his wife, regardless of her consent.

It seems possible that one of Alito's clerks pranked him with these choices, but he circulated the draft that included the embarrassing citations, so it's on him. Evidently such barbaric jurisprudence is what the likes of Alito mean when they blather on about "original intent."

More than two-thirds of Americans believe that Roe should be preserved to protect the health and security of women and their families. When it is cast aside, the political consequences for those responsible should be severe — because the damage done to one of our most important institutions will be so grave.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

Poll: Americans Reject Senate Republican Assault On Judge Jackson

If you watched any of the Supreme Court hearings for Ketanji Brown Jackson and found yourself repulsed by Republicans, you weren't alone. In a Quinnipiac University poll released late last week, 52 percent of Americans disapproved of the way GOP senators were handling the historic confirmation process for Judge Jackson's nomination, while just 27 percent approved of it (21 percent didn't offer an opinion).

In contrast, a 42 percent plurality of Americans approved of the way Democrats handled the process, while 34 percent disapproved (23 percent offered no opinion).

Americans also support confirming Jackson to the high court 51 percent to 30 percent, according to the poll.

As The Washington Post's Aaron Blake pointed out, Republicans fared worse in their handling of Jackson's confirmation than Democrats did in their handling of the contentious hearings for Brett Kavanaugh—who faced a credible sexual assault allegation amid his confirmation.

Republicans received a 25-point net negative rating from the public (27 percent--52 percent) for the way they comported themselves during Jackson's process, while a CNN/SSRS poll in October 2018 found Democrats received a 20-point net negative rating from the public (36 percent--56 percent) during the Kavanaugh confirmation.

The public also opposed confirming Kavanaugh by 51 percent--41 percent. In fact, the place where Kavanaugh really excelled with the public was in the 33 percent who held a "very negative" view of him. For comparison, eight percent of Americans had a very negative view of Neil Gorsuch and seven percent held a very negative view of John Roberts in CNN polls during confirmation for the two eventual justices.

In any case, the main differences between the Jackson and Kavanaugh confirmations is the fact Jackson is substantially more popular and that during consideration of Kavanaugh, neither party fared particularly well in the public's estimation of their handling of the confirmation process. In fact, Republicans also received a 20-point net negative rating from Americans—35 percent--55 percent—for the way they handled Kavanaugh's confirmation, whereas Democrats won plurality support for their handling of Jackson’s confirmation.

But Republicans clearly aren't concerned one bit that a majority of Americans disapprove of the way they conducted themselves during consideration of a nominee who will likely become the Supreme Court's first Black female justice. In fact, Senate Minority Leader Mitch McConnell is currently pressuring his caucus to vote against Judge Jackson’s confirmation.

The only audience Republicans ever really care about—particularly in a pre-midterm environment—is the 27 percent who said they approved of how the GOP has handled the Jackson hearings. It's always about juicing the base for Republicans, who continue to be out of step with the majority of Americans on most issues concerning voters. But it's who shows up at the polls that matters, and Republicans will continue to ignore American majorities as long as they don't face any real electoral consequences for their extreme positions.

Reprinted with permission from Daily Kos

Abortion Bans Don't Protect The Rights of 'The People'

On Wednesday, the Supreme Court heard arguments over a Mississippi law banning abortions after the 15th week of pregnancy. The law roundly defies the court's decisions affirming a right to abortion, but the state portrays the ban as the mildest of correctives.

All Mississippi wants the justices to do, insisted state solicitor general Scott Stewart, is defer to "the people." The law, he said, came about because "many, many people vocally really just wanted to have the matter returned to them so that they could decide it — decide it locally, deal with it the way they thought best, and at least have a fighting chance to have their view prevail."

Justice Brett Kavanaugh seemed to find the argument persuasive. It's his understanding, he said, that Mississippi believes "this Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life."

Letting the people decide, and aligning the court to neither promote nor prevent abortion, sounds sensible — even libertarian. What neither Stewart nor Kavanaugh acknowledged, though, is that, in a fundamental sense, these conditions have already been met.

Under the court's major abortion decisions, the people, as individuals, already have the full authority to make up their minds on the issue. Those who believe that every pregnancy should be carried to term are free to forgo abortions. Those who disagree are free to procure abortions. No woman is forced to abort her fetus, and no woman is forced to undergo childbirth.

By the same token, the Supreme Court has adopted a position of neutrality. Just as the Constitution does not let government forbid or require anyone to worship, the Constitution does not let the government forbid or require anyone to bear a child. Each pregnant woman is free to decide for herself.

But when Stewart and Kavanaugh use these terms, they have in mind a different meaning. If Roe and Casey were overturned, the people would be empowered not as individuals but as a collective. The court would be "neutral" only on the matter of whether states allow abortion or ban it.

Apply these meanings to a different constitutional right and the defects in their logic become clear. Champions of gun rights have always argued that "the right of the people to keep and bear arms" is an individual liberty — as the court agreed in 2008.

They believe the court must keep "the people" of any state from using the power of government to abridge this right. Americans who believe in free speech and religious liberty feel the same way about First Amendment guarantees.

Stewart insisted that abortion rights are different because the framers didn't explicitly protect them. The Roe and Casey decisions, he argued, "have no basis in the Constitution. They have no home in our history or traditions."

In fact, they have a spacious place in our history and traditions. In his 2017 book Sex and the Constitution, University of Chicago law professor Geoffrey Stone notes that abortion was legal and widely performed in the United States at the time the Constitution was ratified — and wasn't outlawed for more than a century afterward.

It's true that the Constitution doesn't mention the right to abortion. But the Constitution protects many freedoms it doesn't mention — the freedom to marry, the freedom to refuse medical treatment, the freedom to have children and govern their upbringing, and more.

The Ninth Amendment stipulates that not all protected liberties are spelled out: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

If the Constitution has nothing to say about abortion, does that mean a state could require some women to have abortions — say, to prevent the birth of children with serious congenital defects?

Of course not. Requiring abortion would be a gross violation of physical autonomy, which enjoys broad constitutional protection. But banning abortion has the same effect. And the Supreme Court appears poised to let it happen.

Pro-life advocates say abortion ends a human life, as if that settles everything. But the issue is not whether a fetus is alive or human. It's whether and when its preservation is sufficiently important to override a woman's fundamental right to control her own body.

Americans have long disagreed on that question. Our disagreement is a powerful argument for leaving the choice to each pregnant woman.

Right now, we let the people decide, one by one, under the protection of a neutral government. But probably not for long.

Follow Steve Chapman on Twitter @SteveChapman13 or at https://www.facebook.com/stevechapman13. To find out more about Steve Chapman and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

Why Even Right-Wing Justices See Danger In Texas Abortion Law

Reprinted with permission from Creators

Texas Solicitor General Judd Stone this week told the Supreme Court that people who object to his state's abortion ban would have a chance to challenge it — eventually. But as Justice Elena Kagan noted, the process that Stone had in mind could take "many years," during which time the law, S.B. 8, would continue to have a severe "chilling effect" on a right the Court has long said the Constitution guarantees.

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Refusing To Back Abortion Rights Bill, Collins Shows True Colors At Last

Reprinted with permission from Alternet

Senator Susan Collins (R-ME) is under mounting criticism for refusing to support a Democratic bill that would make access to abortion the law of the land, as the U.S. Supreme Court, experts believe, prepares to reverse its historic 1973 ruling in Roe v. Wade.

Senator Collins, who repeatedly claims to be pro-choice, is being criticized after years of supporting then-President Donald Trump's judicial nominees at every level of the federal judiciary, including two of his three Supreme Court picks.

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FBI Director Faces Sharp New Scrutiny Over Kavanaugh Probe

Reprinted with permission from Alternet

When then-U.S. Supreme Court nominee Brett Kavanaugh was accused of sexual misconduct by Christine Blasey Ford — a psychology professor at Palo Alto University — in 2018, the FBI conducted an investigation. But Kavanaugh's critics argued that the investigation should have been much more comprehensive in light of the fact that then-President Donald Trump had nominated him for a lifetime appointment on the highest judicial body in the United States. FBI Director Christopher Wray's handling of that investigation, according to Guardian reporter Stephanie Kirchgaessner, continues to be scrutinized three years later.

Kirchgaessner explains, "The FBI director, Chris Wray, is facing new scrutiny of the Bureau's handling of its 2018 background investigation of Brett Kavanaugh, including its claim that the FBI lacked the authority to conduct a further investigation into the then-Supreme Court nominee. At the heart of the new questions that Wray will face later this week, when he testifies before the Senate Judiciary Committee, is a 2010 memorandum of understanding that the FBI has recently said constrained the agency's ability to conduct any further investigations of allegations of misconduct."

In 2018, Kavanaugh was accused of sexual misconduct not only by Ford, but also, by Deborah Ramirez (one of Kavanaugh's classmates at Yale University in the 1980s) and web developer Julie Swetnick (who also knew Kavanaugh during his Yale days). Ford testified during now-Justice Kavanaugh's Senate confirmation hearings; Ramirez and Swetnick did not. And critics of Kavanaugh believed that Ramirez and Swetnick's allegations should have been thoroughly investigated by law enforcement. Kavanaugh flatly denied their accusations.

"The FBI closed its extended background check of Kavanaugh after four days and did not interview either Blasey Ford or Kavanaugh," Kirchgaessner notes. "The FBI also disclosed to the Senate this June — two years after questions were initially asked — that it had received 4500 tips from the public during the background check and that it had shared all 'relevant tips' with the White House counsel at that time. It is not clear whether those tips were ever investigated."

In a letter sent to two Democratic U.S. senators, Sen. Chris Coons of Delaware and Sen. Sheldon Whitehouse of Rhode Island, the FBI said that under the 2010 memo of understanding, it didn't have the authority to "unilaterally conduct further investigative activity absent instructions from the requesting entity." Kirchgaessner reports, however, that "an examination by The Guardian of the 2010 MOU, which was signed by the then-Attorney General Eric Holder and then-White House Counsel Robert Bauer, does not make explicitly clear that the FBI was restricted in terms of how it would conduct its investigation."

According to Kirchgaessner, "Wray is likely to face scrutiny on why information that was specific to the allegations of sexual misconduct was not fully explored, including evidence that was reportedly offered to investigators by an alleged witness named Max Stier, an attorney and former classmate of Ramirez, who reportedly notified senators that he had witnessed an event similar to the one recounted by Ramirez. Stier's account was never examined by the FBI."

The FBI declined to be interviewed for Kirchgaessner's article, but Whitehouse agreed to be interviewed.

The Rhode Island Democrat told the Guardian, "In its years-late response to our questions, the FBI leaned hard on the notion that this MOU limited its authority to be the FBI and investigate wrongdoing. Now that we have the MOU, it's even harder to understand the Bureau's excuses for ignoring credible information it received. Director Wray ought to be ready to answer my questions about this episode — I won't stop asking until he does."

We Still Don't Know The Truth About Kavanaugh’s Shady Finances

Reprinted with permission from Press Run

By joining his fellow conservatives on the Supreme Court in declining to block one of the country's most restrictive abortion laws, a Texas statute that bans the procedure as early as six weeks into pregnancy, Justice Brett Kavanaugh made good on his unspoken pledge to demolish Roe v. Wade. Kavanaugh's actions could change the fabric of this country for decades, and empower radicals within the Republican Party to strip away more rights of Americans.

Against that dystopian backdrop let's not forget two crucial historic facts. Kavanaugh lied his way through his confirmation hearings. Facing multiple and credible allegations of sexual assault, Kavanaugh lied about witnesses; he lied about corroboration; he lied about friendships; he lied about parties. He also lied about an array of other topics, including state drinking ages, vomiting, his yearbook, and his accusers. Kavanaugh lied about his grandfather, federal judges, warrantless wiretaps, and stolen emails.

Second, some deep-pocketed patron, or patrons, over the years have clearly covered Kavanaugh's personal finances. Someone erased all of the many financial pitfalls he faced, including tens of thousands of dollars in credit card debt, while setting up him for a luxurious lifestyle well beyond what he could afford on the salary of a federal judge. We still don't know which benefactors paid for Kavanaugh's $92,000 country club initiation fee in 2016 for the Chevy Chase Club while he was making $225,000 a year, had two children in private school, and was saddled with the most debt of his life, approximately $100,000.

The staggering country club fee, which Kavanaugh plainly could not cover himself, represented the most egregious hole in Kavanaugh's make-no-sense financial disclosure made during his nomination. For instance, in 2006, he bought a $1.2 million home in a tony suburb of Washington, D.C. and made tens of thousands of dollars of upgrades while earning $175,000 and sitting on a modest savings account.

The disclosures should have been a huge red flag for the press. "The personal finances of Supreme Court nominees regularly come under scrutiny during the congressional vetting process," the Washington Post reported in 2018. And Kavanaugh's finances were by far the most befuddling of any Supreme Court nominee in modern history. But the press mostly yawned through the story.

The Post actually published one of the most detailed examinations of his finances during the time of Kavanaugh's nomination. The report though, raised no serious questions of wrongdoing, and was at times openly sympathetic towards Kavanaugh: "He has in many ways stayed true to his intent, following the Jesuit mantra of service above self instilled in him by the elite Catholic high school he attended in suburban Washington."

The Post piece also made sure only to quote friends of Kavanaugh, as they ran interference for the nominee. ("He's not the type of guy who does things to keep up with the Joneses.") One buddy told the Post that Kavanaugh joined the extravagantly expensive Chevy Chase Club because it was conveniently located near his home. Not a single Democrat or independent financial analyst was quoted questioning the obvious inconsistencies in Kavanaugh's filings.

Why didn't the Beltway press go all Whitewater on Kavanaugh? For years the D.C. media, amplifying GOP attacks, couldn't sleep at night knowing Bill and Hillary Clinton might have made money on a land deal that had crooked local ties. (Fact: They lost money on Whitewater.) Breathlessly covering every hearing, every allegation, every Republican leak, the hyperactive Beltway media treated the story as Watergate-meets-Iran Contra; the very idea that a Democratic politician may have benefited financially from some inside chicanery was presented as one of the most important and compelling news stories of the decade.

Suffice to say that if Bill Clinton had joined an exclusive country club while governor of Arkansas, which he clearly did not pay for, journalists would have camped out on the story for months and excavated it without pause.

A middling jurist who immediately embarrassed himself when nominated by Trump by claiming no president had ever "consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination," Kavanaugh has always had the earmarks of a willing suck-up; someone who was cultivated and advanced by right-wing forces not for his judicial intellect, but because he's willing to do what he's told. Like help overturn Roe v. Wade.

With so little media attention paid to Kavanaugh's massive expenditures over the years, we still don't have any answers. We don't know if he's operating on the Supreme Court under a constant conflict-of-interest cloud, because we don't know which wealthy forces have aided and abetted his rise.

One possible, unconfirmed explanation for how Kavanaugh's debt magically evaporated, how he bought a house he could not afford, and joined one of the most exclusive and expensive country clubs on the East Coast while living on the salary of a federal employee? Kavanaugh's rich father secretly gifted him lots of money over the years. (Kavanaugh's father drew a large salary working for a cosmetics trade group and walked away with a $13 million payout in 2005.)

Kavanaugh and the White House likely wanted to avoid that Daddy Warbucks storyline during the confirmation hearing though, since the jurist was presented as a hard-working, aw-shucks Everyman who worked his way up to the highest echelons of the American judiciary.

And guess what? As Kavanaugh does his best to outlaw choice, the press has never tried to confirm any key facts surrounding the endless unanswered questions of Kavanaugh's finances and his miracle $92,000 country club fee.

Justice Barrett Doesn’t Want You To Think She’s A ‘Partisan Hack’

Reprinted with permission from Alternet

Justice Amy Coney Barrett, the newest member of the U.S. Supreme Court whose nomination was rammed through the Senate by then-Republican Majority Leader Mitch McConnell, on Sunday told guests invited to celebrate the 30th anniversary of the McConnell Center at the University of Louisville, "My goal today is to convince you that this court is not comprised of a bunch of partisan hacks."

She was roundly criticized and mocked for that claim, which was reported by the Louisville Courier Journal.

Barrett was nominated immediately after liberal Justice Ruth Bader Ginsburg's death, before she had even been buried. She was confirmed one week before the November 2020 election in a 52-48 vote, entirely on party lines, and sworn in the very next day, all thanks to the efforts of Senator Mitch McConnell. McConnell in 2016 infamously blocked President Barack Obama's Supreme Court nominee, Merrick Garland, from even getting a committee hearing, then pushed through Neil Gorsuch and Brett Kavanaugh before Barrett's nomination.

Here's Senator McConnell celebrating Barrett's confirmation, which indeed was on former U.S. Secretary of State and Democratic presidential nominee Hillary Clinton's birthday:

The court now sits with a 6-3 highly-conservative majority, and some across the country feel several of the conservatives have flouted judicial ethics by weighing in on issues, directly or in directly. Justice Clarence Thomas's wife, Ginni Thomas, is a far right wing lobbyist who used to run a Tea Party organization. She is believed to have had a hand in President Donald Trump's expulsion of transgender service members from the U.S. Armed Forces. And Justice Kavanaugh, infamously during his Senate confirmation hearing, infamously threatened revenge against Democrats.

In fact, as Amy Coney Barrett was being sworn in, The New Republic published an opinion piece stating she and Justice Kavanaugh "have demonstrated this week that they should be thought of as political operatives, not justices."

Barrett of course brought this perception on herself, allowing her nomination to be pushed through in the weeks before a highly controversial presidential election, appearing at a super-spreader event at the White House celebrating her nomination, then later standing on the White House balcony with President Trump, days before the election, all of which effectively worked as an endorsement of his re-election.

Los Angeles Times columnist Jackie Calmes noted at the time just how unprecedented this single act was:

Many are mocking Barrett's claim.